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Exhibit 10.6
MEDIA METRIX, INC.
LEASE
Entire Building
000 Xxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx
Xxxxxxxxx & Xxxxxxxx L.L.P.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
(000) 000-0000
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Landlord: Xxxxx Xxxxxxxx, individually and Xxxxx
Xxxxxxxx and Xxxxxxx Xxx, as co-trustees
of Testamentary Trust of Xxxxxxx X.
Xxxxxxx, dba Grazia Investment Company.
Tenant: Media Metrix, Inc.
Premises: Entire building consisting of a 1st
(P.) 1 floor, 2nd floor and basement, at 000
Xxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx.
Date of Lease: January 4, 2000.
Term: 5 years from commencement date.
(P.) 2(A)
Commencement Date: Earlier of substantial completion of
(P.) 2(A) tenant improvements or on January
15, 2000.
Tenant Improvements: Replace and use best efforts to
(P.) 10(C) waterproof the access door leading to the
basement.
Fixed Expiration Date: Five years after the Commencement Date.
Rent Commencement Date: Commencement Date.
(P.) 2(A)(1)
Rent Payment Date: First business date of the month for
(P.) 2(A) which payment is applicable (except that
the first month's rent is payable on
execution of lease).
Annual Fixed Rent: lst year -- $187,000 ($15,583.33 per
(P.)2(A)(1), (2), (3), (4) and (5) month). No rent is payable or due
for the second and third months of the
first year of the lease term.
2nd year -- $192,500 ($16,041.67 per
month). No rent is payable or due for the
thirteenth and twenty-fourth months of
the lease term.
3rd year -- $198,000 ($16,500 per month).
4th year -- $203,500 ($16,958.33 per
month).
5th year -- $209,000 ($17,416.67 per
month).
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Tax Payment: An amount equal to the increase in the
(P.) 3(A) real estate taxes over the 1999-2000
tax year.
Utilities: Lessee to pay for all water, sewer, fuel,
(P.) 3(C) gas, oil, heat, electricity and power.
HVAC: Lessee to pay the increase of the cost of
(P.) 3(D) Xxxxxx's service contract for the HVAC
system over the Lessor's cost for the
period from date of execution of the
Lease until the expiration of one year
thereafter.
Elevator Lessee to pay the increase of the cost of
(P.) 3(E) Xxxxxx's service contract for the
elevator over the Lessor's cost for the
period from date of execution of the
Lease until the expiration of one year
thereafter.
Insurance: (i) Comprehensive plate glass and
(P.) 3(B)(1), (2) and (4) general liability insurance with
minimum limits of $1,000,000
combined single limit for bodily
injury and property damage;
(ii) All risk insurance; and
(iii) Lessee to pay to Lessor the
increase in all other insurance
costs over the insurance costs paid
by lessor during the base period
7/1/1999 through 6/30/2000. (Base
period insurance costs are $2,212).
Assignment/Subletting: Lessor's written consent required, but
(P.) 14(A) not to be unreasonably withheld. Tenant
shall share profits on sublease with
Landlord, Tenant to retain 40% and
Landlord to receive 60%.
Renewal Option: Lessee has one option to renew the Lease
(P.) 2(B) for an additional 5 year period beginning
immediately after expiration of the
initial lease term. Rent to be
determined, but to be fair market value.
Lessee to give Lessor at least 120 days,
but not more than 270 days notice of the
exercise of such option.
Security: Standby letter of credit in the amount of
(P.) 13 $99,000 in favor of Xxxxxx.
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LEASE: 000 XXXX XXXXXX, XXX XXXXXXXXX, XXXXXXXXXX
THIS LEASE is executed in San Francisco, California between Xxxxx
Xxxxxxxx, individually, and Xxxxx Xxxxxxxx and Xxxxxxx Xxx, co-trustees of
Testamentary Trust of Xxxxxxx X. Xxxxxxx, dba Grazia Investment Company,
hereafter called Lessor, and Media Metrix, Inc., hereafter called Lessee.
1. PREMISES AND USE THEREOF: The property being leased is located in the
City and County of San Francisco, State of California, consisting of the entire
building commonly known as 000 Xxxx Xxxxxx, consisting of a basement, a first
floor and a second floor (hereafter "the leased premises" or "the premises").
The leased premises is to be used for office space and for no other purpose
unless Lessee sublets to a retail subtenant with Lessor's prior written
approval. The parties agree that the rentable space included within the leased
premises consists of five thousand five hundred (5500) square feet and that the
rental amount per square foot shall apply only to the rentable square feet, i.e.
5500 square feet.
2. TERMS AND RENTAL:
A. Initial Lease Term: The term of this lease shall commence upon
substantial completion of tenant improvements or on January 15, 2000, whichever
first occurs, and shall terminate five (5) years thereafter. This five (5) year
period shall be known as "the lease term." Lessee shall pay rent to Lessor,
without deduction or offset, at 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxx 00000, or
such other place as may be designated upon reasonable notice from Lessor. Rent
is payable monthly. All rental payments are due, in advance, commencing on the
commencement date of the lease term on the first business date of the month for
which such payment is applicable. The rent during the lease term shall be as
follows:
1) Thirty four dollars ($34.00) per rentable square foot
during the first year of the lease term. This is a yearly rent during the first
year of the lease term of One Hundred Eighty Seven Thousand Dollars
($187,000.00), payable at the rate of Fifteen Thousand Five Hundred Eighty Three
Dollars and Thirty Three Cents ($15,583.33) per month, in advance, on the first
business date of the month for which such payment is applicable except that the
first month's rent shall be payable upon Xxxxxx's execution of this Lease and
such payment is a condition precedent to the effectiveness of this Lease. No
rent is payable or due, and shall xxxxx, for the second and third months of the
first year of the lease term.
2) Thirty five dollars ($35.00) per rentable square foot
during the second year of the lease term. This is a yearly rent during the
second year of the lease term of One Hundred Ninety Two Thousand Five Hundred
Dollars ($192,500.00), payable at the rate of Sixteen
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Thousand Forty One Dollars and Sixty Seven Cents ($16,041.67) per month, in
advance, on the first business date of the month for which such payment is
applicable. No rent is payable or due for the thirteenth and twenty fourth
months of the lease term.
3) Thirty six dollars ($36.00) per rentable square foot during
the third year of the lease term. This is a yearly rent during the third year of
the lease term of One Hundred Ninety Eight Thousand Dollars ($198,000.00),
payable at the rate of Sixteen Thousand Five Hundred Dollars ($16,500.00) per
month, in advance, on the first business date of the month for which such
payment is applicable.
4) Thirty seven dollars ($37.00) per rentable square foot
during the fourth year of the lease term. This is a yearly rent during the
fourth year of the lease term of Two Hundred Three Thousand Five Hundred Dollars
($203,500), payable at the rate of Sixteen Thousand Nine Hundred Fifty Eight
Dollars and Thirty Three Cents ($16,958.33) per month, in advance, on the first
business date of the month for which such payment is applicable.
5) Thirty eight dollars ($38.00) per rentable square foot
during the fifth year of the lease term. This is a yearly rent during the fifth
year of the lease term of Two Hundred Nine Thousand Dollars ($209,000), payable
at the rate of Seventeen Thousand Four Hundred Sixteen Dollars and Sixty Seven
Cents ($17,416.67) per month, in advance, on the first business date of the
month for which such payment is applicable.
B. Option: Lessor grants to Lessee one option to renew this Lease
for an additional five (5) year period beginning immediately after expiration of
the initial lease term. This five year period shall be known as the Option
Period. This option may not be exercised if, after receiving notice from Lessor
of a default, Xxxxxx has not cured said default at the time Lessee is to
exercise such option. The option shall be exercised by the Lessee giving the
Lessor written notice of exercise of the option not less than one hundred twenty
(120) days and not more than two hundred seventy days (270) days before the
expiration of the initial lease term. In the absence of such notice, the option
shall conclusively be deemed not to have been exercised. In the event of the
exercise of such option, Xxxxxx's tenancy shall be pursuant to all of the terms
and conditions of this Lease except that there shall not be any further Option
Period. In the event the option is exercised, the terms "Lease" and " lease
term" shall be construed to include the Option Period.
1) If the option is exercised Lessor and Xxxxxx agree to
negotiate in good faith in an effort to agree upon an acceptable market rental
rate for the Option Period. If no agreement is reached within thirty (30) days
of Lessee's exercise of the option then the monthly rental during the Option
Period shall be one hundred percent (100%) of the then fair market rental value
of the premises determined as set forth below. The phrase "then fair market
rental value" means what a Lessor and Lessee with no bias to lease the premises
would determine as rent for the Option Period, as of the commencement of the
Option Period, taking into consideration the uses permitted under this
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Lease, the quality, size, design and location of the premises, and the rent for
comparable space located in the same vicinity within the city and County of San
Francisco.
2) Within fifteen (15) days after the expiration of the thirty
day period set forth in subparagraph B.1), above, Lessor and Lessee shall each
appoint a licensed commercial real estate agent or broker who is knowledgeable
about the rental values of commercial property in the area in the City and
County of San Francisco where the leased premises are located to determine the
then fair market rental value of the premises. If either the Lessor or Lessee
does not appoint its agent or broker within ten (10) days after the other has
given notice of the name of its agent or broker, the single agent or broker
appointed will be the sole agent or broker and will set the then fair market
rental value of the premises. If two (2) agents or brokers are appointed, the
Lessor and Xxxxxx and the two agents or brokers will promptly meet and attempt
to set the then fair market rental value. If there is no agreement within thirty
(30) days after the second agent or broker is identified, the two agents or
brokers shall within forty five (45) days after the second agent or broker is
identified jointly select a third licensed agent or broker who is knowledgeable
about the rental values of commercial property in the area in the City and
County of San Francisco where the leased premises are located. Within thirty
(30) days of the selection of the third agent or broker a majority of the agents
or brokers will set the then fair market rental value of the premises. If a
majority of the agents or brokers are unable to agree upon the then fair market
rental value of the premises within that thirty (30) day period, the decision of
the third agent or broker shall become the then fair market rental value of the
premises. Each party shall bear the cost of its own agent or broker and the
parties shall share equally the cost of the third agent or broker. If the first
two agents or brokers cannot agree upon a third agent or broker, then either
Lessor or Lessee may make such application or petition to the court or otherwise
as is necessary to obtain the appointment of a third agent or broker.
3) Notwithstanding any decision made pursuant to the terms of
subparagraph B.2), above, in no event shall the then fair market rental value of
the premises during the Option Period be less than the monthly rental payable
during the fifth year of the Initial Lease term.
C. Lessee's Access For Improvements: Lessee shall have access to the
leased premises from and after the date of this lease to the date of the
commencement of the lease term to complete its improvements.
3. ADDITIONAL RENTAL:
A. TAXES: Lessee shall pay during the lease term, as additional
rental, an amount equal to the increase in the real estate taxes over the
1999-2000 tax year upon the whole of the land and building upon which the leased
premises are situated. Lessor shall provide Lessee with a copy of the 1999-2000
tax bill when the bill is available. The total amounts due shall be paid to
Lessor on or before
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the date that the first installment of taxes shall become delinquent. As used in
this Lease the words "real estate taxes" mean municipal, state or county real
estate taxes including the amount of any general or special assessments, or
levies or charges made by any municipal or political subdivision for local
improvements; any tax or charge made by any authority having jurisdiction for
parking facilities used by Lessee; any sewer, water control, environmental
control, business, or any similar tax or charge that may hereafter become
effective whether such real estate tax is caused by increased or added rate,
increased assessed valuation (except an increase during the initial lease term
resulting from a sale or transfer of the property) or by increase in, or by
reason of any new, general or special assessment or any charges in lieu of
taxes. Xxxxxx represents to Lessee that as of the date of execution of this
Lease Lessor knows of no facts that would result in the reassessment of the
property for real estate taxes.
B. INSURANCE:
1) As additional rental, Xxxxxx agrees to carry a
comprehensive plate glass and general liability insurance policy which names the
Lessor (and Xxxxxx's partners) as an additional named insured. This policy shall
have minimum limits of $1,000,000.00 combined single limit for bodily injury and
property damage. If Lessee should fail to obtain the said policies after five
(5) days notice to Lessee, Lessor may obtain and pay the premium on same; that
premium so paid by Lessor shall be deemed rent and shall be paid to Lessor by
Lessee with the next monthly rental installment after Lessor's payment of the
premium. Xxxxxx agrees to provide Lessor a Certificate of Insurance on these
policies providing ten (10) days prior notice to Lessor in the event of
cancellation. Said insurance shall be obtained through a company reasonably
acceptable to Lessor.
2) As additional rental, Lessee, at its cost, shall maintain a
policy of All Risk insurance, including standard fire, unextended coverage,
insurance with vandalism and malicious mischief endorsements insuring the full
replacement value of Xxxxxx's personal property and all improvements and
alterations to the premises paid for by Lessee. The proceeds from any such
policy shall be used by Lessee for the replacement of personal property or the
restoration of Xxxxxx's improvements or alterations.
3) From time to time, but not more often than once every two
years, as the situation warrants if in the good faith judgment of Xxxxxx, the
minimum limits of personal injury, property damage and liability insurance as
set forth above shall be reasonably increased. Lessee shall be solely
responsible to pay the cost of such increases. Lessor shall maintain all risk
insurance on the building.
4) As additional rental, Lessee shall pay to Lessor, on or
before the premium due date, the increase in all other insurance costs over the
insurance costs paid by Lessor during the base period July 1, 1999 through June
30, 2000 for the land and building upon which the leased premises are located.
Lessor's total insurance costs for the base period is two thousand two hundred
and twelve dollars ($2212.00).
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5) Lessor shall be named and maintained during the lease term
as an additional insured and/or additional loss payee on all Tenant's insurance
policies related to the premises. Lessor shall receive copies of declarations
pages each year and shall receive notice directly from each insurance company of
any revocation or cancellation of any insurance policy. Lessor shall cooperate
with Lessee in allowing any proceeds from any such insurance claim to be used in
the manner required by this Lease and provide Lessee access to such proceeds to
complete any restoration of Xxxxxx's improvements, if required by the terms of
this lease, and to replace Xxxxxx's personal property insured thereby.
6) Lessor shall be named and maintained during the lease term
as an additional insured on all insurance policies of any contractors or others
who perform any improvements or repairs to the premises. Lessor shall receive
copies of declarations pages and shall receive notice directly from each
insurance company of any revocation or cancellation of any insurance policy.
C. UTILITIES: As additional rental, Xxxxxx agrees to pay for all the
water, sewer, fuel, gas, oil, heat, electricity, power, materials, and services
(including but not limited to janitorial services) which may be furnished to or
used in or about the leased premises during the term of this Lease.
D. HVAC MAINTENANCE: Lessor shall obtain a service contract for the
HVAC system(s). As additional rental, Lessee shall pay the increase of the cost
of Lessor's service contract for the HVAC system(s) over the Lessor's cost for
the one year period beginning with the execution of this lease. Lessor will bill
Lessee not more often than twice yearly for Xxxxxx's obligation under the terms
of this paragraph.
E. ELEVATOR: Lessor shall obtain a service contract for the
elevator. As additional rental, Lessee shall pay the increase of the cost of
Xxxxxx's service contract for the elevator over the Lessor's cost for the one
year period beginning with the execution of this lease. Lessor will bill Lessee
not more often than twice yearly for Xxxxxx's obligation under the terms of this
paragraph.
4. PERFORMANCE: Lessee shall pay rent at the time and in the amount and
manner provided and to do, perform, and meet each and every covenant, condition
and obligation of Lessee contained in this Lease.
5. POSSESSION AND ACCEPTANCE OF PREMISES: Prior to taking possession of
the premises and prior to beginning its improvements, Lessee will inspect the
premises and confirm in writing that, to Xxxxxx's satisfaction, the premises are
in a good state of repair and in sanitary condition and that Xxxxxx accepts the
premises in their then condition. The form of Xxxxxx's written acceptance shall
be as shown by Exhibit A which is attached hereto and incorporated by this
reference. Xxxxxx's written acceptance shall not be unreasonably withheld.
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6. HOLDING OVER: If Xxxxxx holds possession of the premises after this
Lease expires, Lessee shall be a tenant from month to month upon the terms and
conditions of this Lease that were in effect during the last month of the lease
term.
7. ENTRY BY LESSOR: Lessor has the right to enter on the premises at
reasonable times to inspect them, to perform required maintenance and repairs or
to make additions or alterations to any part of the building in which the leased
premises are located. Except in the case of emergency, Lessor shall give Lessee
reasonable notice of Xxxxxx's exercise of its right to enter the premises.
Lessor may, in connection with such alterations, additions or repairs, erect
scaffolding, fences, and similar structures, post relevant notices, and place
movable equipment. During such period(s) Lessor shall not incur liability to
Lessee for disturbance of quiet enjoyment of the premises or for any loss of
occupation thereof, except that rent will be reduced proportionally to the
extent that Lessor's activities interfere with the normal conduct of Xxxxxx's
business on the premises. In doing any of the things stated in this paragraph,
Lessor shall use its best efforts not to interfere with Xxxxxx's business, and
to complete such work as expeditiously as possible.
8. POSTING "FOR SALE", "FOR LEASE", OR "FOR RENT" SIGNS: Lessor shall not
have the right to place "For Sale" signs on the premises at any time during the
lease term. Lessor shall have the right to place "For Lease" or "For Rent" signs
on the premises at any time within one hundred twenty (120) of expiration of the
Lease.
9. AGREEMENT REGARDING BANKRUPTCY PROVISIONS:
A. The parties recognize that the Federal Bankruptcy Law in
existence at the date of execution of this Lease prohibits, among other things,
the automatic forfeiture of a Lessee's lease as a result of the institution of
bankruptcy proceedings by, or against, the Lessee.
B. The parties further agree that the various "forfeiture upon
bankruptcy" clauses contained in this Lease are invalid under the present
Federal Bankruptcy Law but nonetheless they desire to retain such clauses in
this Lease, it being expressly recognized that such clauses are of no effect
unless the appropriate Court declares that the relevant portions of the Federal
Bankruptcy Law are unconstitutional or otherwise invalid or, unless the relevant
portions of the Federal Bankruptcy clauses are repealed by the appropriate
legislative body or executive direction.
10. REPAIRS AND IMPROVEMENTS:
A. Repairs: Lessee shall, at Lessee's sole cost, keep and maintain
the leased premises and appurtenances and every part, (excepting exterior walls,
structural members, sidewalks, elevators and roofs which Lessor agrees to
repair), including but not limited to electrical, plumbing, glazing, and store
front and the interior of the premises, in good and sanitary order, condition or
repair and shall promptly repair or replace any such portion if reasonably
necessary. With regard to the areas that Xxxxxx agrees to maintain and repair,
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Lessor shall not be responsible to maintain or repair any area damaged as a
result of any action of Lessee, its agents, employees or customers. Lessee shall
clean and sweep the sidewalk and keep it free of debris. Lessee also shall
immediately notify Lessor if Lessee has any reason to believe that repairs are
needed to any areas that Lessor has agreed to maintain and repair. Lessor and
Xxxxxx agree that Xxxxxx's repair responsibilities under the terms of this
subparagraph are not intended to impose responsibility upon Xxxxxx to replace
entire electrical or plumbing systems at the leased premises due to latent
defects in the systems which were not caused by Xxxxxx's use of the premises.
B. Improvements To Be Made With Written Consent Of Lessor: Lessee is
leasing the premises in an "as is" condition. In the event Lessee desires to
make alterations or improvements with a value in excess of One Thousand Dollars
($1,000.00) to the leased premises, other than improvements of a decorative
nature, such as painting, wall covering or floor covering, Lessee shall obtain
the prior written consent of Lessor, which consent shall not be unreasonably
withheld. Any such improvements shall be performed in a workmanlike manner and
shall satisfy the requirements of all applicable laws, codes, and ordinances.
Lessee shall keep the premises free of any liens for work, materials or services
done for or provided to the Lessee. Lessee will properly discharge, by filing
the necessary bond or otherwise, any mechanics' or other liens filed or claimed
because of any such work, materials or services. Lessor may post the premises
with a Notice of Non-Responsibility in connection with any repairs,
alterations, rebuilding or restoration of the premises by Xxxxxx. Lessee shall
notify Lessor in writing ten (10) days prior to commencement of any such work.
All such alterations, repairs and improvements shall be performed at Xxxxxx's
sole expense and by licensed contractors chosen by Xxxxxx.
C. Improvements To Be Made By Lessor: Prior to the commencement
date, Lessor shall replace the access door leading to the basement to mitigate
the noise from said door. Further, Lessor shall use best efforts to eliminate
any intrusion of water into the basement from the said door.
11. WASTE AND ALTERATIONS: Lessee shall not commit or allow to be
committed, any illegal act, nuisance or waste upon the leased premises. Lessee
shall not make, or allow to be made, any alterations of the leased premises, or
any part thereof, except as allowed by the terms of this Lease, without the
prior written consent of Lessor, which shall not be unreasonably withheld. Any
additions to, or alterations of, the leased premises, except movable furniture
and trade fixtures, shall become at once a part of the realty and belong to
Lessor. If Lessee assigns this lease or sublets any portion of the premises,
then Lessee shall have no obligation to assure the quiet enjoyment of the
premises for any such assignee or subtenant. Lessee shall indemnify Lessor
against and hold Lessor harmless from all costs, expenses, demands and liability
incurred by Lessor if Lessor becomes or is made a party to any claim or action
by such assignee or subtenant in which a claim is made that Xxxxxx has a duty to
assure said assignee's or said subtenant's quiet enjoyment of the premises.
Xxxxxx's rights to indemnity and to be held harmless as stated in this paragraph
are in
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addition to any rights Lessor has under any other terms of this Lease, including
but not limited to paragraphs 15 and 22.
12. ABANDONMENT: Lessee shall not abandon the premises at any time during
the term. If Xxxxxx shall abandon or surrender the leased premises, or be
dispossessed by process of law, or otherwise, any personal property belonging to
Xxxxxx and left on the premises shall be deemed to be abandoned, at the option
of the Lessor.
13. SECURITY DEPOSIT; TRANSFER: As a condition precedent to the
effectiveness of this Lease, Lessee shall obtain a standby letter of credit
from an acceptable issuer in the amount Ninety Nine Thousand Dollars
($99,000.00) in favor of Lessor, and containing terms reasonably acceptable to
Lessor, to guarantee and secure Xxxxxx's faithful performance of all, or any, of
the covenants of this Lease, including but not limited to, the payment of rent
and the payment of damages in the event of any breach of this lease. Lessor's
proof of such breach shall be made in writing and under penalty of perjury and
shall also be sent to Xxxxxx. Such standby letter of credit shall be irrevocable
and shall remain in full force and effect until released by Xxxxxx. In the event
that Xxxxxx's interest in the leased premises be sold, Lessor may transfer,
assign and/or deliver this security to the purchaser of the interest and
thereupon Lessor shall be discharged from any further liability in reference
thereto. If there is no claim against the letter of credit made by Xxxxxx,
Xxxxxx shall return the letter of credit at the expiration of the lease term.
14. ASSIGNMENT AND SUBLETTING:
A. Lessee shall not assign or sublease all or any portion of the
leased premises, any right or privilege connected with this Lease or allow any
other person, except Lessee's agents, affiliates and employees, to occupy all or
any portion of the premises without Lessor's express written consent. Lessor
shall not unreasonably withhold its consent to such assignment or subleasing.
Xxxxxx agrees that, in considering whether to consent to an assignment or
subleasing, the suitability of the proposed assignee or subtenant will be
Xxxxxx's prime concern. Lessee shall pay Lessor any reasonable, actual and
documented expenses, not to exceed two thousand five hundred dollars ($2500.00)
incurred by Lessor in considering a sublease or assignment and in preparing any
necessary legal documents.
X. Xxxxxx's Unauthorized assignment, sublease, or license to occupy
shall be void, and shall terminate the Lease at Lessor's option. Xxxxxx's
interest in this Lease is not assignable by operation of law or in any other
manner, whether by testacy or intestacy. No trustee, sheriff, creditor or
purchaser at any judicial sale, or any officer of any court or receiver, except
if appointed as herein specifically provided, shall acquire any right under
this Lease or to the possession or use of the premises or any part thereof
without the prior written consent of Lessor. Any violation or attempt to violate
the terms of this Paragraph shall, at the option of the Lessor, be deemed a
breach of this Lease and, at Lessor's option, shall terminate this Lease.
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C. Each of the following acts shall be considered an involuntary
assignment:
1) If Xxxxxx makes an assignment for the benefit of creditors,
or institutes a proceeding under the Bankruptcy Act in which Lessee is the
debtor; or,
2) If a Writ of Attachment or Execution is levied on this
Lease and not removed within sixty (60) days of such attachment or levy; or,
3) If, in any proceeding or action to which Xxxxxx is party, a
receiver is appointed with authority to take possession of the premises.
X. Xx involuntary assignment shall constitute default by Xxxxxx and
Lessor shall have the right to elect to terminate this Lease in which case the
Lease shall not be treated as an asset of Lessee.
E. If any sublease is made whereby the sub-rental (including other
charges) exceeds the rent as set forth in this Lease, plus other charges paid by
Lessee (prorated proportionately if the sublease covers only a portion of the
premise) and the amount necessary to amortize any improvements made by Lessee
for the sublease (and any real estate commission or other reasonable expense
connected therewith) on a straight line basis over the term of the sublease, the
Lessee shall immediately notify Lessor and shall pay sixty percent (60%) of the
excess amount to Lessor each month as additional rent without affecting or
reducing any other obligations of Lessee hereunder.
X. Xxxxxx specifically consents to a sublease or assignment of this
Lease to a company related to Lessee or into which or with which Lessee is
merged or consolidated with equal or greater financial resources provided that
Lessee either remains responsible for, or guarantees, performance of the terms
of this Lease. In the event of a sublease or assignment pursuant to the terms of
this paragraph F of Article 14 Lessee need not pay any portion of the excess
rent to Lessor.
15. INDEMNIFICATION OF LESSOR: Lessee, as a material part of the
consideration to be rendered to Lessor, waives all claims against Lessor for
damages to goods, wares and merchandise, in, upon or about said premises
including, but, not limited to sidewalks and other areas adjacent to the leased
premises, from any cause arising at any time other than Lessor's or its agent's
or employee's negligent action or willful misconduct. Lessee will indemnify,
defend and hold Lessor exempt and harmless from any damage or injury to any
person, or to the foods, wares and merchandise of any person, arising from the
use of the premises by Lessee, or from failure of Lessee to keep the premises in
good condition and repair, as herein provided. Notwithstanding the foregoing,
nothing shall be effective to require Lessee to indemnify or hold Lessor
harmless for any negligent action or willful misconduct of Lessor or its
employees or agents.
/s/ SRC /s/ MP /s/ gb
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16. LEASE BREACHED BY Xxxxxx'S RECEIVERSHIP ASSIGNMENT FOR BENEFIT OR
CREDITORS, INSOLVENCY OR BANKRUPTCY: Appointment of a receiver to take
possession of Xxxxxx's assets which is not dismissed within 60 days after Xxxxxx
becomes aware thereof (except a receiver appointed at Lessor' s request as
herein provided), Xxxxxx's general assignment for benefit of creditors, or
Xxxxxx's taking or suffering action under the Bankruptcy Act is a breach of this
Lease.
17. DEFAULT: The occurrence of any of the following shall constitute a
default by Xxxxxx:
A. Failure to pay rent when due, if the failure continues for ten
(10) days after notice has been given to Lessee.
B. Abandonment of the premises.
C. Failure to fulfill any other provisions of this Lease if not
cured within thirty (30) days after notice of the failure has been given to
Lessee. However, if such default is not capable of being cured within thirty
(30) days, and Lessee shall have begun to cure such default within that notice
period, Lessee shall not be deemed to be in default under the terms of this
subparagraph provided that Lessee uses its best efforts to diligently work
towards cure of the said default.
Notices given under this paragraph shall specify the alleged default
and the applicable Lease provision, and shall demand that Lessee perform the
provisions of this Lease or pay the rent that is in arrears, as the case may be,
within the applicable period of time, or quit the premises. No such notice shall
be deemed a forfeiture or a termination of this Lease unless Lessor elects in
the notice.
18. TERMINATION UPON BANKRUPTCY: Notwithstanding any other provision of
this Lease except the paragraph entitled AGREEMENT REGARDING BANKRUPTCY
PROVISIONS upon the filing of a voluntary or involuntary Petition in Bankruptcy,
if the same remains undismissed 60 days after Xxxxxx becomes aware thereof, on
behalf of, or against, Lessee, this Lease shall automatically terminate.
19. SURRENDER OF PREMISES: Lessee shall surrender the premises to Lessor
in the same condition as when Xxxxxx originally took possession allowing for
reasonable use and wear, and damage by casualty, including fire and storms, and
except for any alterations or improvements consented to by Lessor. Lessee shall
remove all business signs or symbols and shall restore the portion of the
premises on which they were placed in the same condition as before their
placement.
20. USES PROHIBITED: Lessee shall not use, or permit any use, other than
the use or purpose for which the premises are leased. No use shall be made, or
permitted, of the leased premises which will increase the existing rate of
insurance upon the building or cause a cancellation of any insurance policy
covering the building in which the leased premises are located. Nor shall Lessee
sell, or permit to be kept, used or sold, on or about the leased premises, any
article which may be prohibited by the standard form of fire insurance policies.
Lessee shall, at Xxxxxx's sole cost and expense, comply with any and all
/s/ SRC /s/ MP /s/ gb
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requirements of any insurance organization or company necessary for the
maintenance of reasonable fire and public liability insurance, covering said
building and appurtenances.
21. COMPLIANCE WITH GOVERNMENTAL REGULATIONS:
A. Lessee has obtained permits and specific permission to do its
improvements without the necessity of installing a sprinkler system. Lessor
shall have no responsibility to install a sprinkler system. Lessor shall, at
Lessor's sole cost, be responsible for all work required, if any, to make the
restrooms, common areas or other facilities comply with all applicable codes,
including handicap codes, Title 24, and the Americans With Disabilities Act
(ADA), including any costs of fees for filing for variances and hardships, and
all costs for compliance with "path of travel exiting" for the leased premises
and all life safety systems and engineering, including exit signage, emergency
lighting, fire alarm system and fire extinguishers in flush-mount cabinets, if
required.
B. Except as stated in paragraph A of this Article 21, Lessee shall,
at his sole cost and expense, comply with the requirements of all Municipal,
State and federal authorities now in effect, or which may be promulgated in the
future, pertaining to the leased premises and shall faithfully observe in the
use of the premises all Municipal ordinances and State and Federal Statutes now
in force or which may hereafter be in force. The judgment of any court or
competent jurisdiction, or the admission of Lessee in any action or proceeding,
whether Lessor be a party or not, that Lessee has Violated any such ordinance or
statute in the use of the premises, shall be conclusive of that fact as between
Lessor and Lessee.
22. LEGAL COSTS AND ATTORNEYS' FEES: Lessee shall reimburse Lessor, upon
demand, for any costs or expenses incurred by Lessor in connection with any
breach or default of Lessee under this Lease, whether or not suit is commenced
or judgment entered. Such costs shall include legal fees, out-of-pocket
expenses, and statutory costs incurred in or for the negotiation of a
settlement, enforcement of rights or otherwise. Furthermore, if any action for
breach of or to enforce the provisions of this Lease is commenced, the court in
such action shall award to the party in whose favor a judgment is entered, a
reasonable sum as attorneys' fees, out-of-pocket expenses, and statutory
costs. Such attorneys' fees, out-of-pocket expenses, and statutory costs shall
be paid by the losing party in such action. Lessee shall also indemnify Lessor
against and hold Lessor harmless from all costs, expenses, demands and liability
incurred by Lessor if Lessor becomes or is made a party to any claim or action
(a) instituted by Xxxxxx (except a claim by Lessee against Lessor under the
terms of this Lease), or a claim by any third party against Lessor or Lessee
related to the leased premises if such claim is alleged to have arisen during
the lease term, or by or against any person holding any interest under or using
the Property by license of or agreement with Lessee; (b) for foreclosure of any
lien for labor or material furnished to or for Lessee or such other person; (c)
otherwise arising out of or resulting from any act or transaction of Lessee or
such other person; or (d) necessary to protect Lessor's
/s/ SRC /s/ MP /s/ gb
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interest under this Lease in a bankruptcy proceeding, or other proceeding under
Title 11 of the United States Code, as amended. Lessee shall defend Lessor
against any such claim or action at Xxxxxx's expense with counsel reasonably
acceptable to Lessor or, at Xxxxxx's election, Xxxxxx shall reimburse Lessor for
any reasonable legal fees out-of-pocket expenses and statutory costs incurred by
Lessor in any such claim or action. Lessee shall pay Lessor's reasonable
attorneys' fees incurred in connection with any act which Xxxxxx proposes to do
and which requires Xxxxxx's consent, except that Xxxxxx's responsibility for
Lessor's legal costs, including attorneys fees, in connection with Lessor's
consent to assignment and subletting is subject to the maximum limit as set
forth in the paragraph titled ASSIGNMENT AND SUBLETTING.
23. LIENS: Lessee shall keep the leased premises free and clear of any
lien or encumbrance created by Xxxxxx's acts or omissions.
24. SUBORDINATION OF MORTGAGE: This Lease shall be subject and subordinate
to any deed(s) of trust or mortgage(s) that any owner of the leased premises may
hereafter at any time elect to place on the premises as well as to all advances
that may be hereafter made on account of said deed(s) of trust or mortgage(s) to
the full extent of the principal sum secured and interest thereon. Xxxxxx's
obligation to subordinate is conditioned upon Xxxxxx's receiving a
nondisturbance agreement from the holder of any such deed of trust or mortgage,
which shall be in form and substance satisfactory to Lessee. Lessee shall not
unreasonably fail or refuse to subordinate and, if Xxxxxx does so fail or refuse
to subordinate then, within fifteen (15) days of Lessor's written request for
subordination, Xxxxxx must respond in writing and state in detail the reasons
Lessee is withholding its consent and why Xxxxxx believes it is being reasonable
in withholding its consent to the subordination requested by Lessor. Xxxxxx's
failure to comply with its obligations under the immediately preceding paragraph
shall be deemed to be a consent to the requested subordination.
25. NOTICES: All notices concerning this Lease shall be in writing, and
delivered personally to the person to whom the notice is to be given, or mailed,
United States certified mail, return receipt requested, postage prepaid,
addressed to such person. Xxxxxx's address for this purpose shall be as stated
in Paragraph 2A or such other address as it may designate to Lessee in writing.
Notices to Lessee may be addressed to Lessee at the premises leased or to such
other address as may be designated to Lessor in writing with a copy sent in the
same manner to Fulbright & Xxxxxxxx, LLP, Attn: Xxxxxxx Xxxxxx, Esq., 000 Xxxxx
Xxxxxx, Xxx Xxxx, XX 00000.
26. ADVERTISEMENTS AND SIGNS: The removal of the existing "Nevada Bob's"
sign and any apparatus relating to same shall be at Lessor's sole cost and
expense and Lessor shall, at its sole expense, repair any damage to the building
occurring as a result of such removal prior to the commencment date as long as
the sign company doing the removal can schedule the removal by that time. All
other costs related to signage to be sole responsibility of Lessee and all
signage to be installed with required governmental permits. Lessee will not
inscribe, paint, or affix any sign, advertisement, placard, or awning on the
exterior or
/s/ SRC /s/ MP /s/ gb
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roof of the building without the prior written consent of Xxxxxx. Lessor shall
not unreasonably withhold its consent. Lessor consents in advance to the same
type of signage installed and maintained by prior tenant, Nevada Bob's. Lessor
consents in advance to any sign, advertisement, placard or awning that is
approved by the City and County of San Francisco governmental authorities. Upon
termination or surrender of this Lease, Lessee shall remove all business signs,
advertisements, placards, awnings or symbols and shall restore the portion of
the premises on which they were placed in the same condition as before their
placement.
27. PARTIAL DESTRUCTION OF PREMISES:
A. Partial destruction of the leased premises shall not render this
Lease void or voidable, or terminate it except as herein provided. Lessee hereby
waives any rights it may have under Civil Code Section 1932(2) and ss.1933(4).
B. If the premises are partially destroyed during the term of this
Lease, Lessor shall repair them if the repairs can be made within one hundred
twenty (120) days of the date of destruction in conformity with local, state,
and federal laws and regulations. Rent for the premises will be reduced
proportionally to the extent that (1) the repair operations interfere with the
normal conduct of Xxxxxx's business on the premises or (2) if, in Lessee's
reasonable judgment, the premises cannot be used for Lessee's normal business
purpose. If the repairs cannot be made within one hundred twenty (120) days,
Lessor has the option to make them within a reasonable time and continue this
Lease in effect with proportional rent rebate to Lessee as provided for herein.
If the repairs cannot reasonably be made in one hundred twenty (120) days, and
if Xxxxxx does not make an election to perform them within a reasonable time,
Lessor or Lessee have the option to terminate this Lease. However, if the
building in which the leased premises are located is more than one-third (1/3)
destroyed, Lessor or Lessee may at its option terminate the Lease.
C. Disputes between Lessor and Lessee relating to the provisions of
this paragraph shall be arbitrated in accordance with the then existing rules of
the American Arbitration Association for commercial disputes. The decision of
the American Arbitration Association shall be binding and final.
28. WAIVER: The waiver by Lessor of any breach of any term, covenant or
condition of this Lease shall not be deemed to be a waiver of such term,
covenant or condition or any subsequent breach of the same or any other term,
covenant or condition of this Lease. Any subsequent acceptance of rent by Lessor
shall not be deemed to be a waiver of any preceding breach by Lessee of any
term, covenant or condition of this Lease (other than the failure of Lessee to
pay the particular rental Lessor accepted) regardless of Lessor's knowledge of
such preceding breach at the time of acceptance of such rent.
29. EMINENT DOMAIN: Eminent domain proceedings resulting in the
condemnation of a part of the premises leased herein that leave the rest useable
by Lessee for purposes of the business for which the premises are leased will
not terminate this Lease, unless Lessor at his option
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terminates it by giving written notice of termination to Lessee, except that if
more than ten percent (10%) of the premises is taken, Lessee may terminate this
Lease by notice to Lessor. The effect of such condemnation, should such option
not be exercised, will be to terminate the Lease as to the portion of the
premises condemned and leave it in effect as to the remainder of the premises.
Lessee's rental for the remainder of the Lease term shall in such case be
reduced by the amount that the usefulness of the premises to it for such
business purposes is reduced. All compensation awarded in the eminent domain
proceeding as a result of such condemnation shall be Xxxxxx's, except that any
expenses Xxxxxx recovers from the condemnor for moving expenses and Xxxxxx's
personal property shall be paid to Xxxxxx. Lessee hereby assigns and transfers
to Lessor any claim it may have to compensation for damage as a result of such
condemnation, except damages for Xxxxxx's moving expenses and Xxxxxx's personal
property.
30. MERGER: The surrender of this Lease by Xxxxxx, or a mutual
cancellation thereof, shall not work a merger, and shall, at the option of
Lessor, terminate all or any existing subleases or subtenancies, or may, at the
option of Lessor, operate as an assignment to him of any or all such subleases
or subtenancies.
31. SUCCESSORS AND ASSIGNS: The covenants and agreements contained in this
Lease shall be binding upon the parties and upon their respective heirs,
executors, administrators, successors and assigns; and all of the parties shall
be jointly and severally liable hereunder.
32. TIME: Time is of the essence of this Lease.
33. CAPTIONS: The captions of this Lease are for convenience only and are
not a part of this Lease and do not in any way limit or amplify the terms and
provisions of this Lease.
34. LAW-CALIFORNIA: This Lease shall be construed and interpreted in
accordance with the laws of the State of California.
35. INTEGRATED AGREEMENT: This Lease contains all the agreements of the
parties and cannot be amended or modified except by written agreement.
36. VENUE AND JURISDICTION: This Lease is entered into and executed in the
City and County of San Francisco, State of California. The parties hereto agree
that if suit is brought to enforce any term of this Lease, it shall be
instituted only in the appropriate court in the said County of the State of
California. Any attempt to institute suit in any other court shall be null and
void and of no effect and the parties agree that such suit shall, upon
appropriate motion by either party, be dismissed or transferred to San Francisco
County.
37. ESTOPPEL CERTIFICATE:
X. Xxxxxx shall at any time upon not less than twenty (20) days
prior written notice from Xxxxxx execute, acknowledge and deliver to Lessor a
statement in writing (i) certifying that this Lease is unmodified and in full
force and effect (or, if modified, stating the
/s/ SRC /s/ MP /s/ gb
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nature of such modification and certifying that this Lease, as modified, is in
full force and effect) and the date to which the rent and other charges are paid
in advance, if any, and (ii) acknowledging that there are not, to Xxxxxx's
knowledge, any uncured defaults on the part of Lessor hereunder, or specifying
such defaults if any are claimed. Any such statement may be conclusively relied
upon by a prospective purchaser or encumbrancer of the premises.
X. Xxxxxx's failure to deliver such statement within such time shall
be conclusive upon Lessee (i) that this Lease is in full force and effect,
without modification except as may be represented by Lessor, (ii) that there are
no uncured defaults in Lessor's performance and (iii) that not more than one
month's rent has been paid in advance.
C. If Lessor desires to finance or refinance said premises, or any
part thereof, Xxxxxx hereby agrees to deliver to any lender designated by Lessor
such financial statements of Xxxxxx as may be reasonably required by such
lender. Such statements shall include the past three years' financial statements
of Xxxxxx. All such financial statements shall be received by Lessor in
confidence and shall be used only for the purposes herein set forth.
38. SEVERABILITY: If any term or provision of this Lease shall, to any
extent, be determined by a court of competent jurisdiction to be invalid or
unenforceable, the remainder of this Lease shall not be affected thereby, and
each term and provision of this Lease shall be valid and be enforceable to the
fullest extent permitted by law.
39. RECORDING: Lessee shall not record this Lease without Xxxxxx's written
consent but either party shall, upon request, execute and deliver to the other
party any short form memorandum of this Lease that has been approved by Xxxxxx
in writing.
40. INTEREST ON PAST DUE OBLIGATIONS: Any amount due to Lessor that is not
paid within five days of the due date shall bear interest at ten percent (10%)
per annum from the due date. Payment of such interest shall not excuse or cure
any default of Lessee under this Lease.
41. HAZARDOUS MATERIALS:
A. Lessee shall not use, or allow to be used, on the leased premises
any materials regulated by federal, state or municipal laws or regulations
without first obtaining the written permission of Lessor. If any clean-up or
remediation is necessary because of Xxxxxx's use, or allowing the use, of any
such materials, Lessee shall be solely responsible for payment of all such
clean-up or remediation costs. In the event Lessor must pay such costs, Lessee
shall indemnify and hold Lessor harmless for all costs incurred by Lessor in
such clean-up or remediation.
X. Xxxxxx represents and warrants that to Lessor's knowledge there
are no hazardous wastes nor materials located at or under the leased premises.
If such hazardous wastes or materials are later discovered, and if the same
pre-date Xxxxxx's occupancy of the premises,
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Lessor shall, at its sole cost and expense, comply with any governmental laws,
ordinances, regulations or orders relating to the remediation of said hazardous
waste or material. Lessor shall, at its sole cost indemnify Lessee against any
liability and claims arising from the existence of such hazardous waste or
material, including reasonable attorneys fees incurred by Xxxxxx, provided that
Lessor or Xxxxxx's insurance carrier shall have the right to select counsel to
represent Lessee. If the process of remediation, in Xxxxxx's reasonable
judgment, make it impractical for Lessee to continue its tenancy, Lessee may,
upon thirty (30) days written notice, terminate its tenancy.
C. Disputes between Lessor and Lessee relating to the provisions of
this paragraph shall be arbitrated in accordance with the then existing rules of
the American Arbitration Association for commercial disputes. The decision of
the American Arbitration Association shall be binding and final.
42. QUIET ENJOYMENT: Lessor covenants that, upon Lessee paying its rent
and complying with the other terms of this Lease, Lessor will not do anything to
wrongfully interfere with Xxxxxx's quiet enjoyment of the premises during the
terms of the lease and any extensions thereof.
43. WORK BY XXXXXX: In connection with any work to be performed by Xxxxxx,
Lessor covenants and agrees to respond to any written requests from Lessee for
approval of plans, specifications (or revisions to same) and any other matters
concerning such work within ten (10) working days of receiving same with its
approval or by providing specific, written comments to same. If Lessor fails to
respond to Lessee within such time, Lessor shall be deemed to have consented to
same.
(Lease is concluded on page 17)
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44. AUTHORITY TO EXECUTE:
Xxxxxx and Xxxxxx each state that the person(s) who have signed this
Lease have the full power and authority to do so and, in the case of a
corporation, that the corporation has approved the Lease and all necessary
corporate documents and authority exists for the signatures below to bind the
corporation to the terms of this Lease.
AGREED TO THIS DATE:
Media Metrix, Inc.
Lessee
12/17/99 by /s/ Xxxxxx X Xxxxxx
------------------ --------------------------------------
Dated Executive Vice President
--------------------------------------
[insert name and title]
12/17/99 by /s/ Xxxx Xxx Xxxxx
------------------ --------------------------------------
Dated President
--------------------------------------
[insert name and title]
Grazia Investment Company
Lessor
1/04/00 by /s/ Xxxxx Xxxxxxxx
------------------ -------------------------------------
Dated Xxxxx Xxxxxxxx
1/04/00 by /s/ Xxxxx Xxxxxxxx
------------------ -------------------------------------
Dated Xxxxx Xxxxxxxx, co-trustee of the
Testamentary Trust of Xxxxxxx X.
Xxxxxxx
1/04/00 by /s/ Xxxxxx Xxx
------------------ -------------------------------------
Dated Xxxxxx Xxx, co-trustee of the
Testamentary Trust of Xxxxxxx X.
Xxxxxxx
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EXHIBIT A TO LEASE FOR 000 XXXX XXXXXX, XXX XXXXXXXXX, XX
In accordance with the terms of paragraph 5 of this Lease, Xxxxxx has
inspected the leased premises prior to beginning Xxxxxx's improvements and
Xxxxxx confirms in writing that, to Xxxxxx's satisfaction, the premises are in a
good state of repair and in sanitary condition and that Xxxxxx accepts the
premises in their current condition.
Media Metrix, Inc.
12/17/99 by /s/ Xxxxxx X Xxxxxx
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Dated Executive Vice President
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[insert name and title]
Lessee
12/17/99 by /s/ Xxxx Xxx Xxxxx
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Dated President
--------------------------------------
[insert name and title]
Lessee
