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EXHIBIT 10.10
RETAIL LEASE FORM
OF THE BUILDING OWNERS AND MANAGERS ASSOCIATION OF SAN FRANCISCO
Parties 1. THIS LEASE, made this 7th day of, November 1996 between Telehub,
Inc., Lessor; and Mauswerks, Inc., Lessee:
Premises 2. WITNESSETH: That Lessor does hereby lease to Lessee, and Lessee
does hereby lease from Lessor those certain premises situated in
the City and County of San Francisco, State of California, and
described as follows:
Approximately 3,975 rentable square feet on the second floor of
1019 Mission Street, hereinafter called "premises". The word
"Premises" as used throughout this lease is hereby expressly
defined, subject to the provisions of paragraph 17 hereof, to
include sidewalks and driveways in front of or adjacent to the
premises described above, including driveway and sidewalk
installations, and also the area, if any, directly underneath
such sidewalks and driveways. The word "installations includes,
without limiting the generality of the word, elevators, elevator
doors, stairways and sidewalk lights.
Use 3. The premises are to be used as General Office and for no other
business or purpose, without the written consent of Lessor.
Covenants 4. It is mutually agreed that the letting hereunder is upon and
subject to the following terms, covenants and conditions and
Lessee covenants, as a material part of the consideration for
this lease, to keep and perform each and all of said terms,
covenants and conditions by him to be kept or performed, and
that this lease is made upon the condition of such performance.
Term 5. The term of this lease shall be for and shall commence on the
1st day of December 1996, and end on the 30th day of November 4,
1999, inclusive:
Rent 6. Tenant shall pay to Landlord as basic rent for the Premises
throughout the term of this Lease the sum per month as follows:
a) Basic rent shall be paid to Landlord on or before the first
day of the term hereof and on or before the first day of
each and every successive calendar month thereafter during
the term hereof, except that basic rent for the first full
calendar month shall be paid concurrently with the
execution of this Lease by Tenant. 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, then the basic rent for the first and
last fractional months of the term hereof shall be
appropriately pro-rated.
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c) All charges and other amounts or any kind
payable by Tenant to Landlord pursuant to this
lease shall be deemed additional rent.
Landlord shall have the same remedies for
default in the payment of additional rent as
for default in the payment of basic rent.
Basic rent, percentage rent, and additional
rent are collectively sometimes hereinafter
referred to as "rent."
d) Rent shall be paid to Landlord, without
deduction or offset, in lawful money of the
United States of America at Landlord's
address for notices hereunder or to such other
person or at such other place as Landlord may
from time to time designate in writing. All
rent payable by Tenant to Landlord hereunder,
if not received by Landlord when due, shall
bear interest from the due date until paid at
the publicly announced prime rate or reference
rate charged on such due date by the San
Francisco Main Office of Bank of America, N.T.
& S.A. (or any other successor bank) for
short-term, unsecured loans to its most
creditworthy borrower, plus four percent (4%
per annum, but in no event shall such interest
exceed the maximum rate permitted by law.
Landlord's acceptance of any interest payments
shall not constitute a waiver of Tenant's
default with respect to the overdue amount or
prevent Landlord from exercising any of the
rights and remedies available to Landlord
under this Lease or by law. Any change in said
interest rate shall become effective on the
same date on which a change in the prime rate
or reference rate becomes effective.
e) The parties intend that this Lease shall be
net to Landlord property tax and insurance and
that Tenant shall pay all other costs and
expenses relating to the Premises and the
business conducted therein as expressly
provided in this Lease.
Notice of Surrender 7. Lessee shall, at least thirty (30) days before
the last day of the term hereof, give to Lessor a
written notice of intention to surrender the
premises on that date, but nothing contained
herein shall be construed as an extension of the
term hereof or as consent of Lessor to any
holding over by Lessee.
Holding Over 8. If Lessee holds possession of the premises after
the term of this Lease, Lessee shall, at the
option of Lessor, to be exercised by Lessor's
giving written notice of Lessee and not
otherwise, become a tenant from month to month
upon the terms and conditions herein specified,
so far as applicable, at a monthly rental of Five
thousand nine hundred fifty Dollars ($5,950.00),
payable in advance, in lawful money, and shall
continue to be such Tenant until thirty days
after Lessee shall have given to Lessor or Lessor
shall have given to Lessee a written notice of
intention to terminate such monthly tenancy.
Unless Lessor shall exercise the option hereby
given him, Lessee shall be a tenant at sufferance
only, whether or not Lessor shall accept any rent
from Lessee while Lessee is so holding over.
Delivery of Possession 9. If Landlord, for any reason whatsoever, cannot
deliver possession of the said premises to Tenant
at the commencement of the term hereof, this
Lease shall not be void or voidable, nor shall
Landlord be liable to Tenant for any loss or
damage resulting therefrom, but in that event
there shall be a proportionate reduction of rent
covering the period between the commencement of
the said term and the time when Landlord can
deliver possession. If possession of the Premises
is not delivered to Tenant within six months from
the scheduled commencement date, this Lease will
terminate. Should Landlord tender possession of
the premises to Tenant prior to the date
specified for the commencement of the term, and
Tenant accepts such prior tender, such prior
occupancy shall be subject to all terms,
covenants, and conditions of this Lease,
including the payment of rent. No delay in
delivery of possession shall operate to extend
the term hereof. Within 10 days after written
request from Landlord, Tenant shall execute and
return to Landlord acknowledgement of the
commencement date of the term of this Lease.
Uses Prohibited 10. The premises shall not be used except for the
purposes specified in paragraph 3 hereof, Lessee
shall, at all times during the term hereof,
actively use the premises for those purposes, and
shall not at any time leave the premises vacant
without the written consent of Lessor. Lessee
shall not do or permit anything to be done in or
about the premises, or bring or keep anything
therein, which will in any
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way increase the rate of fire insurance upon the building
wherein the premises are situated or any of its contents , or
which will in any way conflict with any law, ordinance rule or
regulation which may now or hereafter be enacted or promulgated
by any public authority, or create a nuisance, or in any way
obstruct or interfere with the rights of other tenants of the
building, or injure or annoy them, allow any sale by auction
upon the premises, or commit or suffer to be committed any waste
upon the premises, or use, or allow the premises to be used, for
any improper, immoral, unlawful or objectionable purpose or
place any loads upon the floor, walls or ceiling which endanger
the structure, obstruct the sidewalk or passageways or stairways
in front of, within, or adjacent to the premises, do or permit
to be done anything in any way tending to disturb the occupants
or neighboring property or tending to injure the reputation or
appearance of the building.
Assignment And Subletting
11. a) Tenant shall not mortgage, pledge, hypothecate or
encumber this Lease or any interest therein. Tenant
shall not assign this Lease or suffer any other person
(the agents and servants, Tenant excepted) to occupy or
use the premises, or any part thereof, or any right or
privilege appurtenant thereto without the prior written
consent of Landlord first had and obtained, which
consent shall not be unreasonably withheld. Landlord's
consent to one assignment, subleasing occupancy shall
not be deemed to be a consent to any subsequent
assignment or occupancy.
b) Provided further and notwithstanding, anything
hereinbefore set forth: In the event that at any time or
from time to time during the term of this Lease, Tenant
desires to sublet all or any part of the Premises,
Tenant shall notify the Landlord in writing (the "Sublet
Notice") of the terms of the proposed subletting, and
the area so proposed to be sublet and shall give
Landlord the right to sublet from Tenant such space (the
"Sublet Space") on the same terms as those contained in
the Sublet Notice. Such option shall be exercisable by
Landlord in writing for a period of 30 days after
receipt of the Sublet Notice.
If Landlord fails to exercise its option and Tenant
desires to complete the proposed sublease, Tenant shall
deliver an executed copy of such sublease to Landlord in
order to obtain its consent as required in paragraph 11
(a) above. If Landlord consents to a sublease, then such
sublease shall be subject to and made upon the following
terms:
(i) any such sublease shall be subject to the terms
of this Lease and the term thereof may not
extend beyond the expiration of the term of this
Lease;
(ii) no subtenant shall have a right to further
sublease its premises. If Landlord fails to
exercise such option, and Tenant fails to
consummate a sublease with a third party within
60 days after the expiration of Landlord's
option period on the same terms and conditions
contained in the Sublet Notice, Tenant shall be
required to deliver and comply with the terms
and conditions set forth above before any
further subletting shall be permitted.
c) Regardless of Landlord's consent, no subletting nor
assignment shall release Tenant of Tenant's obligation
or alter the primary liability of Tenant to pay rent and
perform other obligations of Tenant under this Lease.
d) In no event shall Tenant assign this Lease or sublet the
Premises to or any portion thereof to any then, existing
or prospective tenant of said building.
e) Tenant shall pay Landlord's reasonably costs incurred in
connection with Tenant's request to assign this Lease or
sublet the premises regardless whether or not the
Landlord consents in the proposed transfer.
f) If Tenant is a corporation or partnership, the transfer
(as consequence of a single transaction or any number of
separate transactions) of fifty percent (50%) or more of
the beneficial ownership interest of the voting stock of
Tenant issued and outstanding as of the date hereof or
of the partnership interests in Tenant, as the case may
be, shall constitute an assignment hereunder for which
such consent is required. Further, Tenant shall not
assign or sublet the Premises or any portion thereof to
any corporation which controls, is controlled by or is
under common control with Tenant, or that any
corporation resulting from merger or consolidation with
Tenant, or to any person or entity which acquires all
the assets as a going concern of the business or Tenant
that is being constructed on the premises, without such
consent shall be void, and at the option of Landlord,
shall terminate this lease.
12. Lessee has examined and inspected and knows the
condition of the premises and every part thereof and has
received the same in good order and repair and accepts
the same in their present condition. Lessee, at Lessee's
own cost and expense, shall maintain the premises, and
every part thereof, in as good order and repair as when
received, reasonable use and wear thereof and damage by
Act of God excepted, and in good and safe condition, and
shall make all repairs and maintain and repair all
equipment therein, including plumbing and heating
installations. Lessee waives the benefits of the
provisions of subsection 1 of Section 1932 and of
Sections 1941 and 1942 of the Civil Code of California
and all right to make repairs at the expense of Lessor
as provided in Section 1942 of that Code.
Lessee shall have all passenger or freight elevators now
or hereafter constructed upon the premiss, and all
elevators, including sidewalk elevators, actually used
by lessee in connection with the premises, whether on
the premises or not, regularly inspected, and shall keep
the same in good running order and in perfect repair and
condition and keep same covered during the term hereof
by permit and license to operate by the Industrial
Accident Commission of the State of California, and by
any other public authority from which a license or
permit is or may be required, at the cost and expense of
Lessee.
Lessee agrees to replace immediately, at Lessee's cost
and expense, all plate glass and windows and skylights
broken or destroyed by accident or act of third parties
or Lessee's agents or employees.
In the event that any alterations, additions, repairs or
acts of God shall be required to be done in
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connection with the premises or any part thereof under
the provisions of any law, ordinance or rule now in
force or hereafter enacted by municipal, state or
national authority, the same shall be made at the cost
and expense of Lessee.
All repairs, alterations and improvements that may be
required shall be done only with the written consent of
Lessor first obtained by Lessee but at the cost of
Lessee, and unless otherwise provided by written
agreement, all additions to, improvements and
alterations of, the premises except movable furniture
and trade fixtures, shall become a part of the realty,
and be the property of Lessor, and shall remain upon
and be surrendered with the premises. Lessee agrees
that if he shall make any repairs, alterations or
improvements, he will not take such action until two
days after receipt by him of the written consent of
Lessor required by this paragraph, in order that Lessor
may post appropriate notices to avoid any liability for
liens. Lessee will at all times permit such notices to
be posted and to remain posted until the completion and
acceptance of such work.
Destruction of 13. a) In the event the Premises or a portion of the
Premises Building is damaged by fire or other insured
casualty, Landlord shall diligently repair the
same to the extent possible with the insurance
proceeds received by Landlord, subject to the
provisions of this Section hereinafter set forth,
if such repairs can in Landlord's opinion be made
within 90 days after the issuance of a building
permit therefor under the laws and regulations of
federal, state and local governmental authorities
having jurisdiction thereof. In such event this
Lease shall remain in full force and effect
except that if such damage is not the result of
the negligence or willful misconduct of Tenant or
Tenant's agents, contractors, employees,
subtenants, licensees, invitees or visitors, an
abatement of basic rent shall be allowed Tenant
for such part of the Premises as shall be rendered
unusable by Tenant in the conduct of its business
during the time such part is so unusable.
Notwithstanding the foregoing, if such damage
shall occur during the final year of the term of
this Lease, Landlord shall not be obligated to
repair such damage, but may instead elect to
terminate this Lease upon written notice given to
Tenant within 30 days after the date of such fire
or other casualty, in which event this Lease shall
terminate as of the termination date specified in
Landlord's notice.
b) If such repairs cannot in Landlord's opinion be
made within 90 days after issuance of a building
permit therefor or if such damage is uninsured,
Landlord may elect upon notice to Tenant given
within 60 days after the date of such fire or
other casualty to (i) repair or restore such
damage, in which event this Lease shall continue
in full force and effect, but basic rent shall be
partially abated as hereinabove in this Section
provided or (ii) terminate this Lease in which
event this Lease shall terminate as of the
termination date specified in Landlord's notice.
c) A total destruction of the Building automatically
shall terminate this Lease. Landlord and Tenant
acknowledge that this Lease constitutes the entire
agreement of the parties regarding events of
damage or destruction, and Tenant waives the
provisions of California Civil Code Section
1932(2) and 1933(4) and any similar statute now or
hereafter in force.
d) If the Premises are to be repaired under this
Section, Landlord shall repair at its cost any
injury or damage to the Building itself and the
initial improvements made by Landlord pursuant to
Exhibit A___. Tenant shall pay the cost of
repairing or replacing all other improvements in
the Premises and Tenant's trade fixtures,
furnishings, equipment and other personal property.
Entry and 14. Lessee will permit Lessor and its agents to enter into
Inspection and upon the premises at all reasonable times for the
purpose of inspecting the same, or for the purpose of
protecting owner's reversions, or to make alterations
or additions to the premises or to any other portion
of the building in which the premises are situated,
without any rebate of rent to Lessee for any loss of
occupancy or quiet enjoyment of the premises, or
damage, injury or inconvenience thereby occasioned,
and will permit Lessor at any time within thirty (30)
days prior to the expiration of this lease to place
upon the premises any usual or ordinary "To Let" or "To
Lease" signs, and to bring upon the premises, for
purposes of inspection or display, prospective tenants
or purchasers thereof.
Hold Harmless 15. Tenant agrees to indemnify and defend Landlord against
and save Landlord harmless from any and all loss,
cost, liability, damage and expense, including without
limitation penalties, fines and reasonable attorney's
fees and costs, incurred in connection with or arising
from any cause whatsoever in, on or about the
foregoing: (1) any default by Tenant in the observance
or performance of any of the terms, covenants or
conditions of this Lease on Tenant's part to be
observed or performed, or (2) the use of occupancy or
manner of use or occupancy of the Premises by Tenant
or any person or entity claiming through or under
Tenant, including without limitation, the presence,
use, generation, storage, transportation or disposal
of any toxic or hazardous substances, or (3) the
condition of the Premises or any occurrence or
happening on the Premises from any cause whatsoever,
or (4) any acts, omissions or negligence of Tenant or
any person or entity claiming through or under Tenant,
or of Tenant's agents, contractors, employees,
subtenants, licensees, invitees or visitors or any such
person or entity, in, on or about the Premises or the
Building, either prior to the commencement of, during,
or after the expiration of the term, including without
limitation any acts, omissions or negligence in the
making or performing of any alterations. Tenant
further agrees to indemnify, defend and save harmless
Landlord, Landlord's agents and the lessors under any
ground or underlying leases, from and against any and
all loss, cost, liability, damage and expense,
including without limitation reasonable attorney's
fees and costs, incurred in connection with or arising
from any claims by any persons by reason of injury to
persons or damage to property occasioned by any use,
occupancy, condition, occurrence, happening, act,
omission or negligence referred to in the preceding
sentence, In the event any action or proceeding is
brought against Landlord for any claim against which
Tenant is obligated to indemnify Landlord hereunder,
Tenant upon notice from Landlord shall defend such
action or proceeding at Tenant's sole expense by
counsel approved by Landlord, which approval shall not
be reasonably withheld. The provisions of this Section
(15) shall survive the expiration or earlier
termination of this Lease.
Utilities 16. Lessee agrees to pay promptly, as the same become due
and payable, all bills for all water, gas,
electricity, heat and other services furnished to or
used by Lessee on or about the premises, in addition
to the rents herein reserved.
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Sub-Sidewalk 17. The area, if any, directly under sidewalks or driveways
Area included in the premises shall be subject to all prior
rights and easements of the city and county wherein
situated, and any tax or rental which may hereafter be
imposed by the City and County for the use or occupation of
such area shall be borne and paid by Lessee, in addition to
the rental herein reserved. In the event that Lessee shall
be ousted by such city and county from any of the portions
of the premises described in this paragraph, such ousted
shall not constitute a breach of this Lease nor be held to
be an eviction by Lessor, but this Lease shall continue in
full force and effect.
Signs 18. Lessor reserves the exclusive right to the roof, and to all
exterior walls or parts of the premises, and access thereto,
and the same are not covered by this Lease, and Lessee
agrees that no signs, advertisements or notices whatsoever
shall be inscribed, painted, affixed or displayed on, to or
in any part of the outside or inside, or on the roof of the
premises, without the written consent of Lessor. Any signs
so placed on the premises shall be so placed upon the
understanding and agreement that Lessee will remove same at
the termination of the tenancy herein created and repair any
damage or injury the premises caused thereby, and if not so
removed by Lessee then Lessor may have same so removed at
Lessee's expense.
Notices 19. All notices to be given between the parties hereto shall be
in writing and served personally or by depositing the same
in the United States mail, postage prepaid and registered
and addressed to Lessor at its office and to Lessee at the
premises, whether or not Lessee has departed from,
abandoned or vacated the premises.
Default 20. In the event of any breach or default of Lease by Tenant,
then Landlord, besides any other rights are remedies of
Landlord at law or equity, shall have the right either to
terminate Tenant's right to possession of the premises and
thereby terminate this Lease or to have this Lease continue
in full force and effect with Tenant at all times having
the right to possession of the premises. Such property so
removed may be stored in a public warehouse or elsewhere at
the cost and for the account of Tenant. Upon such
termination Landlord, in addition to any other rights and
remedies (including rights and remedies under Subparagraphs
(1), (2) and (4) of Subdivision (a) of Section 1951.2 of
the California Civil Code of any amendment thereto), shall
be entitled to recover from Tenant the worth at the time of
award of the amount by which the unpaid rent for the balance
of the term after the time exceeds the amount of such rental
loss that the Tenant proves could be reasonably avoided. The
worth at the time of award of the amount referred to in
subparagraphs (1) and (2) of Subdivision (a) of Section
1951.2 of the California Civil Code shall be computed by
allowing interest at the maximum rate allowed by law. The
worth at the time of the award of the amount referred to in
subparagraph (3) of Subdivision (a) of Section 1951.2 of the
California Civil Code shall be computed by discounting such
amount at the discount rate of the Federal Reserve Bank of
San Francisco at the time of the award plus 1%.
Any proof by Tenant of the amount of rental loss that could
be reasonably avoided shall be made in the following
manner: Landlord and Tenant shall each select a licensed
real estate broker in the business of renting property of
the same type and use as the premises and in the same
geographic vicinity and such two real estate brokers shall
select a third licensed real estate broker and the three
licensed real estate brokers so selected shall determine
the amount of rental loss that could be reasonably avoided
for the balance of the term of this Lease after the time of
award. The decision of the majority of said licensed real
estate brokers shall be final and binding upon the parties
hereto.
Should Landlord, following any breach or default of this
Lease by Tenant, elect to keep this Lease in full force and
effect, with Tenant retaining the right to possession of
the premises (notwithstanding the fact the Tenant may have
abandoned the leased premises), then Landlord, besides the
rights and remedies specified in Section 1951.4 of the
California Civil Code "(lessor may continue lease in effect
after lessee's breach and abandonment and recover rent as
it becomes due, if lessee has right to sublet or assign,
subject only to reasonable limitations)" and all other
rights and remedies Landlord may have at law or equity,
shall have the right to enforce all of Landlord's rights
and remedies under this Lease. Notwithstanding any such
election to have this Lease remain in full force and
effect, Landlord may at any time thereafter elect to
terminate Tenant's right to possession of said premises and
thereby terminate this Lease for any previous breach or
default which remains uncured, or for any subsequent breach
or default.
Removal of 21. Lessee hereby irrevocably appoints Lessor as agent and
Property attorney in fact of Lessee, to enter upon the premises in
the event of default by Lessee in the payment of any rent
herein reserved, or in the performance of any term covenant
or condition herein contained to be kept or performed by
Lessee, and to remove any and all furniture and personal
property whatsoever situated upon the premises, and to
place such property in storage for the account of, and at
the expense of Lessee. In the event that Lessee shall not
pay the cost of storing any such property after the
property has been stored for a period of ninety (90) days
or more, Lessor may sell any or all of such property, at
public or private sale, in such manner and at such times
and places as Lessor in his sole discretion may deem
proper, without notice to Lessee or any demand upon Lessee
for the payment of any part of such charges or the removal
of any of such property, and shall apply the proceeds of
such sales first to the cost and expenses of such sale,
including reasonable attorney's fees actually incurred-
second, to the payment of the costs of or charges for
storing any such property- third, to the payment of any
other sums of money which may then or thereafter be due to
the Lessor from the Lessee under any of the terms thereof;
and, fourth, the balance, if any, to Lessee.
Waiver of 22. Lessee hereby waives all claim for damages that may be
Damages caused by Lessor's re-entering and taking possession of the
premises or removing and storing furniture and property, as
herein provided, and will save Lessor harmless from loss,
costs or damages occasioned Lessor thereby, and no such
re-entry shall be considered or construed to be a forcible
entry as the same is defined in the Code of Civil Procedure
of the State of California.
Attorney Fees 23. If as a result of any breach or default on the part of
Tenant under this Lease, Landlord uses the services of any
attorney in order to secure compliance with this Lease,
Tenant shall reimburse Landlord upon demand as additional
rent for any and all attorneys' fees and expenses incurred
by Landlord, whether or not formal legal proceedings are
instituted. Should either party bring action.
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against the other party, by reason of or alleging the
failure of the other party to comply with any or all of its
obligations hereunder, whether for declaratory or other
relief, then the party which prevails in such action shall
be entitled to its reasonable attorneys' fees and expenses
related to such action, in addition to all other recovery or
relief. A party shall be deemed to have prevailed in any
such action (without limiting the generality of the
foregoing) if such action is dismissed upon the payment by
the other party of the sums allegedly due or the performance
of obligations allegedly not complied with, or if such party
obtains substantially the relief sought by it in the action,
irrespective of whether such action is prosecuted to
judgment. In addition, if either party to this Lease becomes
a party to or is involved in any way in any action
concerning this Lease or the Premises by reason in whole or
in part of any act, neglect, fault or omission of any duty
by the other party, its employees or contractors, the party
subjected to said involvement shall be entitled to
reimbursement for any and all reasonable attorneys' fees and
costs.
Non-Waiver of 24. Lessor's failure to take advantage of any default or breach
Breach of covenant on the part of Lessee shall not be or be
construed as a waiver thereof, nor shall any custom or
practice which may grow up between the parties in the
course of administering this instrument, be construed to
waive or to lessen the right of Lessor to insist upon the
performance by Lessee of any term, covenant or condition
hereof, or to exercise any rights given him on account of
any such default. A waiver of a particular breach or
default shall not be deemed to be a waiver of the same or
any other subsequent breach or default.
Surrender of 25. Lessee agrees to surrender the premises at the termination
Premises of the tenancy herein created, in the same condition as
herein agreed they have been received, reasonable use and
wear thereof and damage by the act of God or by the
elements excepted, and upon the surrender of the premises,
either at the expiration of the term or otherwise, Lessee
agrees to remove all rubbish from the premises, and if not
so removed by Lessee, Lessor may have the same removed at
Lessee's expense.
Terms Defined 26. The words "Lessor" and "Lessee" as used herein shall
include the plural as well as the singular words used in
masculine gender include the feminine and neuter. If there
be more than one Lessor or Lessee the obligations hereunder
imposed upon Lessor or Lessee shall be joint and several.
The marginal headings or titles to the paragraphs of this
Lease are not a part of this Lease and shall have no effect
upon the construction or interpretation of any part thereof.
Heirs 27. Subject to the provisions hereof relating to assignment and
subletting, this lease is intended to and does bind the
heirs, executors, administrators, successors and assigns of
any or all of the parties hereto.
Time 28. Time is of the essence of this Lease.
Insurance 29. Tenant agrees to keep in force during the term hereof, at
Tenant's expense, public liability and property damage
insurance with combined single limits of not less than
$1,000,000.00. Said policy shall name Landlord as an
additional insured, and shall insure Landlord's contingent
liability as respects acts, or omissions of Tenant, shall
be issued by an insurance company licensed to do business
in the state where the premises are located; and shall
provide that said insurance shall not be canceled or
amended unless thirty (30) days prior written notice to
Landlord is first given. A certified copy of said policy,
or, if the Landlord agrees, a certificate thereof, shall be
delivered to Landlord by Tenant prior to commencement of
the term and each renewal of such insurance. Tenant hereby
waives all rights of subrogation against Landlord to which
any insurance carrier may at any time become entitled under
any policy of insurance carried by Tenant.
Liens 30. Tenant shall keep the Premises and the building free from
any liens arising out of any work performed, materials
furnished or obligations incurred by Tenant. Should Tenant
fail to remove any such lien within five (5) business days
after notice to do so from Landlord, Landlord may, in
addition to any other remedies, record a bond pursuant to
California Civil Code Section 3143 and all amounts incurred
by Landlord in so doing shall become immediately due and
payable by Tenant to Landlord as additional rent. Landlord
shall have the right to post and keep posted on the
Premises any notices that may be provided by law or which
Landlord may deem to be proper for the protection of
Landlord, the Premises and the Building from such liens.
Security 31. Simultaneously with the execution of this Lease, Tenant
shall deposit the sum of $5,950.00, of which sum $1,975.00
shall be payment of the first month's rent and the balance
thereof, namely, $3,975.00 shall be held by Landlord as
security for the faithful performance by Tenant of all the
terms, covenants and conditions of this Lease. Provided
that at the end of the term Tenant shall have delivered up
the Premises to Landlord, broom clean, and in the same
condition as at the commencement date, reasonable wear
excepted, said sum held as security shall be returned to
Tenant. No interest shall be payable thereon and Landlord
shall not be required to keep said sum in a separate
account.
If Tenant fails to pay any Rent or other charges due
hereunder, or otherwise defaults with respect to any
provision of this Lease, Landlord may at its option apply
or retain all or any portion of the deposit for the payment
of any Rent or other charge in default of the payment of
any other sum to which Landlord may become obligated by
Tenant's default, or to compensate Landlord for any loss
damage which Landlord may suffer thereby. If Landlord so
uses or applies all or any portion of the deposit, then
within 10 days after demand therefor Tenant shall deposit
cash with Landlord in any amount sufficient to restore the
deposit to the full amount thereof, and Tenant's failure to
do so shall be a material breach of this Lease. Landlord's
application or retention of the deposit shall not
constitute a waiver of Tenant's default to the extent that
the deposit does not fully compensate Landlord for all
losses or damages incurred by Landlord in connection with
such default and shall not prejudice any other rights to
remedies available to Landlord under this Lease or by law.
Eminent Domain 32. If all or any part of the Premises shall be taken or
appropriated by any public or quasi-public authority under
the power of eminent domain, and such taking will
substantially impair Tenant's use of the premises for more
than 90 days, either party shall have the right, at its
option, to terminate this
6
7
Lease. If all or any part of the building of which
the premises are a part shall be taken or
appropriated by any public or quasi-public
authority under any power of eminent domain,
Landlord may terminate this Lease. In either of
such events, Landlord shall be entitled to and
Tenant upon demand of Landlord shall assign to
Landlord any rights of Tenant to any and all
income, rent, award, or any interest therein
whatsoever which may be paid or made in connection
with such public or quasi-public use or purpose,
and Tenant shall have no claim against Landlord or
the condemnor for the value of any unexpired term
of this Lease. If a part of the premises shall be
so taken or appropriated and neither party hereto
shall elect to terminate this Lease, the rent
thereafter to be paid shall be equitably reduced.
Subordination 33. This Lease shall be subject and subordinate at
all times to all ground underlying leases which
may now exist or hereafter be executed affecting
the building and/or the land upon which the
building is situated and to the lien of any
mortgages or deeds of trust in any amount or
amounts whatsoever now or hereafter placed on or
against said building and/or land on or against
the Landlord's interest or estate therein or on or
against any ground or underlying lease without the
necessity of having further instruments on the
part of Tenant to effectuate such subordination.
Notwithstanding the foregoing, Tenant covenants
and agrees to execute and deliver, upon demand,
such further instruments evidencing such
subordination of this Lease to such ground or
underlying leases and to the lien of any such
mortgages or deeds of trust as may be required by
Landlord. Tenant hereby irrevocably appoints
Landlord the attorney in fact of Tenant to
execute and deliver any such instrument or
instruments for or in the name of Tenant. In the
event of foreclosure or exercise of any power of
sale under any mortgage or deed of trust superior
to this Lease or to which this Lease is subject or
subordinate, upon Tenant's attornment to the
Lessor under such ground or underlying lease, or
to the purchaser at any foreclosure sale or sale
pursuant to the exercise of any power of sale
under any mortgage or deed of trust, this Lease
shall not terminate and Tenant shall automatically
be and become the Tenant of said Lessor under such
ground or underlying lease or to said purchaser,
whichever shall make demand therefore.
Late Charge 34. In the event Tenant shall fail to pay any rents or
sums due hereunder on or before the due date
herein provided, then and in the event the amount
so due and unpaid shall bear a late charge equal
to five percent (5%) of the amount due together
with interest accruing from the date due at the
maximum interest rate permitted by law, which late
charge and interest shall be payable forthwith
upon demand. (The foregoing shall be in addition
to any other right or remedy of Landlord.)
Complete Agreement 35. There are no oral agreements between Landlord and
Tenant affecting this Lease, and this Lease
supersedes and cancels any and all prior
negotiations, arrangements, correspondence,
communications, brochures, agreements and
understandings, if any, whether oral or written,
between Landlord and Tenant or displayed by
Landlord or Tenant with respect to the subject
matter of this Lease or the Building. There are no
representations between Landlord and Tenant other
than those contained in this Lease and all
reliance with respect to any representations is
based solely upon the terms of this Lease.
Corporate Authority 36. If Tenant signs as a corporation, each of the
persons executing this Lease on behalf of Tenant
does hereby covenant and warrant that(a) Tenant
is a duly authorized and existing corporation,
(b) Tenant has and is qualified to do business in
California, (c) the corporation has full right
and authority to enter into this Lease, and (d)
each and both of the persons signing on behalf of
the corporation are authorized to do so. If
Tenant is a corporation, within 30 days after
execution of this Lease by Tenant, Tenant shall
deliver to Landlord a certified corporate
resolution authorizing the persons who signed
below or behalf of Tenant to execute this Lease.
Modification & 37. If any mortgage or equity lender should require
Financing as a condition to the financing that Landlord
Agreements obtain any amendment of the provisions of this
Lease, Tenant agrees to execute such amendment,
provided that such amendment shall not change the
location of the Premises, increase the rent or
materially interfere with Tenant's use or
occupancy of the Premises. If Tenant should refuse
to execute any amendments so required within five
(5) days after receipt of the same, Landlord
shall have the right by notice to Tenant to
cancel this Lease, and upon such cancellation
Landlord shall refund any unearned rent, the
security deposit, if any, and neither party shall
have any liability to the other.
Alterations to 38. Landlord shall have the right at any time and
Building from time to time to change, add to, subtract
from, or otherwise alter the Building, including
without limitation, the location and/or size of
entrances, doors and doorways, corridors,
elevators, stairs, utility rooms, restrooms or
other general common areas. In addition, Landlord
reserves the right to locate, both vertically and
horizontally, install, maintain, use, repair and
replace pipes, utility lines, ducts, conduits,
flues, drains, sprinkler mains and valves, access
panels, wires and structural elements leading
through the Premises in locations which will not
materially interfere with Tenant's use thereof.
Landlord shall use reasonable efforts not to
interfere unreasonably with the normal business
operations of Tenant, but in any event there
shall be no abatement of any rent by reason of
any actions of Landlord pursuant to the
provisions of this Section, and Tenant hereby
waives any claim for damages for any injury or
inconvenience or interfere with Tenant's
business, any loss of occupancy or quiet
enjoyment of the Premises or any other loss
occasioned by such actions.
Quiet Possession 39. Landlord agrees that Tenant, upon paying the rent
and performing the terms, covenants and
conditions of this lease, may quietly have, hold
and enjoy the Premises from and after Landlord's
delivery of the Premises to Tenant and until the
end of the term, subject, however, to the
provisions of Section 14, and any mortgages,
deeds of trust, ground or underlying leases,
agreements and encumbrances to which this Lease
is subordinate.
Non-Discrimination 40. Tenant agrees for Tenant and Tenant's heirs,
executors, administrators, successors and assigns
and all persons claiming under or through Tenant,
and this Lease is made and accepted upon and
subject to the following conditions; that there
shall be no discrimination against or segregation
of any person or group of persons on account of
race, color, creed, sex, religion, marital
status, medical conditions, physical handicap,
ancestry or national origin (whether in the use,
occupancy, subleasing, transferring, tenure or
enjoyment of the Premises or otherwise) nor shall
Tenant or any person claiming through or under
Tenant establish or permit any such practice or
practices of discrimination or segregation with
reference to or arising out of the use or
occupancy of the Premises by Tenant or by per-
8
son claiming through or under Tenant.
Other Stores
Additional 42. The exhibits and addenda listed below are incorporated
Provisions by reference in this lease.
Exhibit A + Addendum to Lease.
IN WITNESS WHEREOF Landlord and Tenant have executed this
Lease the day and year first above written.
By Telehub, Inc. MAUSWERKS, INC.
------------------------ --------------------------
/s/ PAUL LARSON
------------------------ --------------------------
Paul Larson
BRIAN TOPPING, President
------------------------ --------------------------
/s/ BRIAN TOPPING
------------------------ --------------------------
Landlord Tenant
Date 11-10-96 Date 11-10-96
------------- ----------------
SEE YOUR ATTORNEY
This Lease should be given to your attorney for review and approval before you
sign it. BOMA makes no representation or recommendation concerning the legal
effect, legal sufficiency, or tax consequences of this Lease. These are
questions for your attorney.
8
9
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
THIS AGREEMENT ("Agreement") is made on the 8th day of July, 1997 between Brian
Topping and Manswerks, Inc., a California Corporation having an address at 2339
Third Street, Suite 24, San Francisco, CA 94107 ("Manswerks") and Peter Berns,
Patrick Connolly, Robert Lamb and Colomotion, Inc., a California Corporation
having an address at 1021 Mission Street, San Francisco, CA 94103
("Colomotion"), hereinafter collectively referred to as the "Parties."
RECITALS
1. The Parties had an oral agreement ("Oral Agreement") whereby each of Peter
Berns, Patrick Connolly, Robert Lamb and Brian Topping would form Colomotion
as equal partners.
2. The Parties entered into negotiations to modify the Oral Agreement whereby
each of Peter Berns, Patrick Connolly, and Robert Lamb would join Manswerks
as unequal partners. These negotiations were never completed.
3. Manswerks currently holds the lease for commercial space located at 1021
Mission Street, San Francisco, CA 94103 and the lease for Metropolitan Fiber
Systems' services (collectively, "the Leases").
4. Colomotion has agreed to pay Manswerks twenty four thousand nine hundred
forty eight dollars and twenty cents ($24,948.20 US). Manswerks hereby
acknowledges receipt from Colomotion of (1) a payment in the amount of
thirteen thousand five hundred dollars ($13,500US) applied toward the
downpayment, and (2) five thousand eight hundred five dollars and sixty
cents ($5,805.60US), which represents three monthly installment payments
pursuant to the Promissory Note. The downpayment balance one of three
hundred sixty eight dollars and eighty three cents ($368.83US) will be paid
on execution of this Agreement and installment payments one of five thousand
eight hundred five dollars and sixty cents ($5,805.60US) will be paid as a
pursuant to the Promissory Note.
5. Following a dispute ("Dispute") between the Parties, the Parties have
elected to terminate their Oral Agreement and to settle the Dispute as set
forth in this Agreement.
NOW, THEREFORE, for good and valuable consideration, including the mutual
promises, the Parties hereby agree as follows:
PAYMENT TERMS
6. Effective immediately upon execution of this Agreement, the promissory
installment note ("Promissory Note"), and the pledge agreement ("Pledge"),
(collectively, "the Documents"), Colomotion shall assume all obligations of
Manswerks under the Leases, including all interest and benefit in said space
and improvements, including those made by Manswerks. In exchange for these
interests, Manswerks accepts as full and complete consideration (1) the
payment of Manswerks invoice 1205 dated 6/4/97 (the "Invoice"), (2) the
release by Colomotion of any express or implied claim, demand, obligation,
or cause of action in Manswerks or Brian Topping as outlined below in
Section 8, and (3) the successful assignment of the Leases to Colomotion or
any other entity as Colomotion authorizes within 30 days after execution of
this Agreement. The terms of said payments are attached hereto and entitled
"Promissory Note", and "Pledge" ("Documents"). Attached to the Documents are
Exhibit A and the Invoice. These Documents and the attachments thereto are
incorporated herein by reference.
Settlement Agreement and Mutual Release 1/3 July 8, 1997
10
RECITAL OF CONSIDERATION
7. The Parties do hereby release and forever discharge each other, including
any parent, subsidiary, or related companies, and any and all of the
Parties' officers, directors, agencies, agents, representatives, assigns,
shareholders, heirs, and employees past, present and future, from any and
all claims, demands, obligations, or causes of action of any nature
whatsoever, whether based on tort, contract, statutory, or other legal
theory of recovery, and whether compensatory, punitive, statutory or any
other form of damages or legal relief which arise out of, are based on, or
pertain to the transactions and occurrences referenced in the Documents.
8. The Parties do hereby expressly waive any and all rights conferred upon
them by the provisions of section 1542 of the California Civil Code.
9. This is a compromise settlement of outstanding issues that exist between
the Parties. The payment of the consideration for this Agreement shall not
be construed or deemed as an admission of liability on the part of either
of the Parties.
10. The payment of the sum specified in the Promissory Note is for a full and
complete settlement and release of matters involving disputed issues. No
further sums are due.
ENTIRE AGREEMENT
11. This Agreement supersedes any and all other Agreements, whether oral or in
writing, between the Parties, with respect to the subject of this
Agreement. This Agreement, when included with the Documents, contains all
of the covenants and agreements between the Parties. Each party to this
Agreement acknowledges that no representations, inducements, promises or
agreements have been made by or on behalf of any party except those
covenants and agreements embodied in this Agreement. No agreement,
statement, or promise not contained in this Agreement shall be valid or
binding.
GOVERNING LAW
12. The validity of this Agreement and of any of its terms or provisions, as
well as the rights and duties of the Parties under this Agreement, shall
be governed by and construed pursuant to and in accordance with the laws
of the State of California.
DISPUTE RESOLUTION
13. All disputes, claims and controversies arising out of this Agreement that
are not resolved between the Parties within thirty (30) days after notice
of a dispute, shall be settled by binding arbitration conducted by an
alternative dispute resolution entity located in the San Francisco Bay
Area. Such arbitration shall be conducted in San Francisco or such other
place as the Parties so agree. The arbitration shall be conducted by a
sitting or retired judge or attorney with at least ten (10) years'
relevant experience, and conducted under the commercial arbitration rules
of the American Arbitration Association, and otherwise comply with Section
1280 et. seq. of the California Code of Civil Procedure. The award in such
arbitration may be enforced in any court of competent jurisdiction and the
cost of arbitration and the fees and expenses of the prevailing party
shall be borne by the losing party as determined by the arbitrator.
NOTICES
14. All notices, consents, requests, waivers or reports required or permitted
under this Agreement shall be in writing and shall be deemed to have been
properly given or served for all purposes if delivered in person
(including courier delivery), sent by certified mail, postage prepaid,
return receipt requested, to the Parties at the addresses set forth below,
or sent by facsimile:
If to Colomotion: Peter Berns
1021 Mission Street
San Francisco, CA 94103
Settlement Agreement and Mutual Release 2/3 July 8, 1997
11
(415) 574-1114 Fax
If to Mausworks: Brian Topping
2339 Third Street, Suite 24
San Francisco, CA 94107
(415) 522-5001 Fax
Either party may at any time change the place for notice by notice to the other
party. All notices shall be deemed effective and deemed given (i) on the third
(3rd) business day after mailing, if mailed (ii) on the date of delivery, if
delivered, or (iii) the date of acknowledged receipt, if faxed.
/s/ PETER BERNS 7/14/97
- ------------------------------------------------------------------------------
Peter Berns
/s/ PATRICK CONNOLLY 7/14/97
- ------------------------------------------------------------------------------
Patrick Connolly
/s/ ROBERT LAMB 7/14/97
- ------------------------------------------------------------------------------
Robert Lamb
/s/ BRIAN TOPPING 7/14/97
- ------------------------------------------------------------------------------
Brian Topping
Settlement Agreement and Mutual Release 3/3 July 8, 1997
12
ADDENDUM TO LEASE AGREEMENT
LIMITATION OF RESPONSIBILITY
"Tenant acknowledges and agrees that all telephone and telecommunications
services desired by Tenant shall be ordered and utilized at the sole expense of
Tenant. Unless Landlord otherwise requests or consents in writing, all of
Tenant's telecommunications equipment shall be and remain solely in the Tenant's
premises and the telephone closet(s) on the floor(s) on which the Tenant's
premises is located in accordance with rules and regulations adopted by Landlord
from time to time. Unless otherwise specifically agreed to in writing. Landlord
shall have no responsibility for the maintenance of Tenant's telecommunications
equipment, including wiring; nor for any wiring or other infrastructure to which
Tenant's telecommunications equipment may be connected. Tenant agrees that, to
the extent any such service is interrupted, curtailed or discontinued, Landlord
shall have no obligation or liability with respect thereto and it shall be the
sole obligation of Tenant at its expense to obtain substitute service."
NECESSARY SERVICE INTERRUPTIONS
"Landlord shall have the right, upon reasonable prior notice to Tenant, to
interrupt or turn off telecommunications facilities in the event of emergency or
as necessary in connection with repairs to the building or installation of
telecommunications equipment for other Tenants of the building."
REMOVAL OF EQUIPMENT, WIRING AND OTHER FACILITIES
"Any and all telecommunications conduits and cable installed in the Tenant's
premises or elsewhere in the building by or on behalf of Tenant, including
wiring, or other facilities for telecommunications transmittal, shall be removed
prior to the expiration or earlier termination of the Lease term, by Tenant at
its sole cost or, at Landlord's election, by Landlord at Tenant's sole cost,
with the cost thereof to be paid as additional rent. Landlord shall have the
right, however, upon written notice to Tenant given no later than day(s) prior
to the expiration or earlier termination of the Lease term, to require Tenant to
abandon and leave in place, without additional payment to Tenant or credit
against rent, any and all telecommunications wiring and related infrastructure,
whether located in the Tenant's premises or elsewhere in the building."
NEW PROVIDER INSTALLATIONS
"In the event that Tenant wishes at any time to utilize the services of a
telephone or telecommunications provider whose equipment is not then servicing
the building, no such provider shall be permitted to install its lines or other
equipment within the building without first securing the prior written approval
of the Landlord. Landlord's approval shall not be deemed any kind of warranty or
representation by Landlord, including, without limitation, any warranty or
representation as to the suitability, competence, or financial strength of the
provider. Without limitation of the foregoing standard, unless all of the
following conditions are satisfied to Landlord's satisfaction, it shall be
reasonable for Landlord to refuse to give its approval:
(i) Landlord shall incur no expense whatsoever with respect to any aspect of the
provider's provision of its services, including without limitation, the costs of
installation, materials and services; (ii) prior to commencement of any work in
or about the building by the provider, the provider shall supply Landlord with
such written indemnities, insurance, financial statements, and such other items
as Landlord reasonably determines to be necessary to protect its financial
interests and the interests of the building relating to the proposed activities
of the provider;
13
Addendum Page - 2
(iii) the provider agrees to abide by such rules and regulations, building and
other codes, job site rules and such other requirements as are reasonably
determined by Landlord to be necessary to protect the interests of the
building, the Tenants in the building and Landlord, in the same or similar
manner as Landlord has the right to protect itself and the building with
respect to proposed alterations as described in Article ___ of this Lease; (iv)
Landlord reasonably determines that there is sufficient space in the building
for the placement of all of the provider's equipment and materials; (v) the
provider agrees to abide by Landlord requirements, if any, that provider use
existing building conduits and pipes or use building contractors (or other
contractors approved by Landlord); (vi) Landlord receives from the provider
such compensation as is reasonably determined by Landlord to compensate it for
space used in the building for the storage and maintenance of the provider's
equipment, for the fair market value of a provider's access to the building,
and the costs which may reasonably be expected to be incurred by Landlord;
(vii) the provider agrees to deliver to Landlord detailed "as built" plans
immediately after the installation of the provider's equipment is complete; and
(viii) all of the foregoing matters are documented in a written license
agreement between Landlord and the provider, the form and content of which is
reasonably satisfactory to Landlord."
LIMIT OF DEFAULT OR BREACH
"Notwithstanding any provision of the proceeding paragraphs to the contrary,
the refusal of Landlord to grant its approval to any prospective
telecommunications provider shall not be deemed a default or breach by Landlord
of its obligation under this Lease unless and until Landlord is adjudicated to
have acted recklessly or maliciously with respect to Tenant's request for
approval, and in that event, Tenant shall still have no right to terminate the
Lease or claim an entitlement to rent abatement, but may as Tenant's sole and
exclusive recourse seek a judicial order of specific performance compelling
Landlord to grant its approval as to the prospective provider in question. The
provisions of this paragraph may be enforced solely by Tenant and Landlord are
not for the benefit of any other party, and specifically but without
limitation, no telephone or telecommunications provider shall be deemed a third
party beneficiary of this Lease."
INSTALLATION AND USE OF WIRELESS TECHNOLOGIES
"Tenant shall not utilize any wireless communications equipment (other than
usual and customary cellular telephones), including antennae and satellite
receiver dishes, within the Tenant's premises or the building, without
Landlord's prior written consent. Such consent may be conditioned in such a
manner so as to protect Landlord's financial interests and the interests of the
building, and the other Tenants therein, in a manner similar to the
arrangements described in the immediately preceding paragraphs."
USE OF ROOF
"Landlord may grant Tenant a non-exclusive license to use the roof of the
building for the installation, operation, maintenance and repair of a satellite
dish, not to exceed two (2) meters in diameter, or similar antenna for its own
use or that of a subtenant or assignee. Tenant's rights under this subsection
may not be separately assigned or subleased. Tenant's exercise of said license
shall be subject to the following: (i) Landlord's reasonable determination that
space is available for such purpose at the time Tenant's request is made; (ii)
Landlord's reasonable approval of the size, type, and location of the equipment
to be installed; (iii) Landlord's reasonable determination that such use shall
not cause damage to or interference with the roof or any other use being made
(or intended to be made) of the roof at that time; and (iv) Tenant's
reimbursement of any reasonable out-of-pocket expenses incurred by Landlord in
reviewing Tenant's request and in supervising the installation of Tenant's
equipment.
If Tenant is granted permission to use the roof for the aforesaid purposes,
then Tenant shall pay to Landlord as additional rent the costs referenced in
this subsection [and a sum of nine hundred dollars ($900.00) for every month
such permission is in effect] [but no separate monthly or annual charge shall
be levied on Tenant].
14
Addendum Page - 3
In addition to any other rules and regulations Landlord may establish from time
to time governing use of the roof, Tenant shall comply with the following: (i)
Tenant's use of the roof shall be at Tenant's sole risk and expense and
Landlord shall have no responsibility therefore and no liability on account of
any damage to or interference with Tenant equipment; (ii) Tenant shall be
solely responsible for installing, operating, maintaining and repairing its
equipment at its own expense in a manner that causes no interference with or
damage to the roof itself or any other person's use of the roof; (iii) Tenant
shall perform all of such work in such a way as to not damage any building
systems or void any warranty or guarantee relating thereto; (iv) Tenant, if
required by Landlord, shall use existing building conduits and pipes or use
building contractors (or other contractors approved by Landlord) in performing
such work; (v) Tenant shall be responsible for obtaining and paying all
government licenses and permits required by law (and shall deliver copies
thereof to Landlord as a condition precedent to is use of the roof) and for
complying with all applicable laws relating to its exercise of said license;
and (vi) Tenant shall remove all of its equipment at or before the expiration
of the term of this Lease and shall repair any damage resulting from such
removal and restore the roof and building systems to the condition they were in
(ordinary wear and tear excepted) before Tenant exercised said license.
Tenant's exercise of its rights under this subsection shall be considered an
alteration subject to Section ____ of this Lease to the extent Section ____ is
not inconsistent with the foregoing. In the event Tenant breaches any of its
obligations under this subsection beyond any notice and cure period provided in
Section ____ of this Lease, then Tenant shall be in default under this Lease
and in addition to any other remedy Landlord may have under this Lease,
Landlord may revoke the license granted in this subsection, whereupon Tenant
shall cease its use of the roof and shall remove, repair, and restore as set
forth above.
LIMITATION OF LIABILITY FOR EQUIPMENT INTERFERENCE
In the event that telecommunications equipment, wiring and facilities or
satellite and antennae equipment of any type installed by or at the request of
Tenant within the Tenant's premises, on the roof, or elsewhere within or on the
building causes interference to equipment used by another party, Tenant shall
assume all liability related to such interference. Tenant shall use reasonable
efforts, and shall cooperate with Landlord and other parties, to promptly
eliminate such interference. In the event that Tenant is unable to do so, Tenant
will substitute alternative equipment which remedies the situation. If such
interference persists, Tenant shall discontinue the use of such equipment, and,
at Landlord's discretion, remove such equipment according to foregoing
specifications.
15
EXHIBIT A
ADDENDUM TO LEASE DATED NOVEMBER 7, 1996
BETWEEN TELEHUB, INC. AND MAUSWERKS, INC.
1. PRINTED FOR SUBORDINATE TO ADDENDA:
1.1 These addenda are in integral part of the attached Agreement which
has been extended herewith and these addenda supersede inconsistent
provisions of the printed Agreement.
2. RENT
2.1 December 1996 and January 1997 rents are waived in lieu of certain
tenant improvements.
The monthly rent schedule shall be as follows:
February 1997 $515.00
March 1997 $2475.00
April 1997 $2975.00
May 1997 $3475.00
June 1997 - November 1999 $3975.00
Tenant will have one 2 year option available at $3975.00
3. TENANT IMPROVEMENTS
3.1 Landlord agrees to do the following improvements to the space.
- Build-out one ADA complaint uni-sex restroom.
- Ceiling to be painted gray to match mezzanine.
- Broken windows to be replaced.
- Provide new front door with glass.
- Provide more accessible gate on front door.
- Doors to be installed on elevator.
- Conduit to be placed from the 2nd floor to the Telehub in the
basement.
-1-
16
4. TENANT ALLOWED TO SUB-LET TO OTHER INTERNET SERVICE PROVIDERS, TECHNOLOGY
COMPANIES AND LIKE KIND
4.1 Local access providers will be located in the basement. Rent paying
providers are exempt from cross-connect fees Tenant is exempt from cross
connect fees.
5. TENANT ROOF RIGHTS
Tenant shall have the right to place 3 antennae, one 2 meter and 2 DSS
sized dishes on the roof at no charge.
6. PARKING
Tenant shall have use of 2 tandem parking spaces in the building located
in front of the freight elevator at a monthly rent of $150 month on a
month-to-month basis.
7. ALTERATIONS AND ADDITIONS
3.1 Any alteration, improvements, additions or Utility Installations
in, or about the premises that Lessee shall desire to make and which
requires the consent of the Lessor shall be presented to Lessor in
written form, with proposed detailed plans. If Lessor shall give its
consent, the consent shall be deemed conditioned upon Lessee acquiring a
permit to do so from appropriate governmental agencies, the furnishing of
a copy thereof to Lessor prior to the commencement of the work and the
compliance by Lessee of all conditions of said permit in a prompt and
expeditious manner.
3.2 Lessee shall pay, when due, all claims for labor or materials
furnished or alleged to have been furnished to or for Lessee at or for
use in the Premises, which claims are or may be secured by any mechanics
or materialmen's lien against the Premises or any interest herein. Lessee
shall give Lessor not less than ten (10) days' notice prior to the
commencement of any work in the Premises, and Lessor shall have the right
to post notices on non-responsibility in or on the Premises as provided
by law. If Lessee shall, in good faith, contest the validity of any such
lien, claim or demand, then Lessee shall, at its sole expense defend
itself and Lessor against the same and shall pay and satisfy any such
adverse judgment that may be rendered thereon before the enforcement
thereof against the Lessor or the Premises, upon the condition that if
Lessor shall require, Lessee shall furnish to Lessor a surety bond
satisfactory to Lessor in an amount equal to such contested lien claim or
demand indemnifying Lessor against liability for the same and holding the
Premises free from the effect of such lien or claim. In addition, Lessor
may require Lessee to pay Lessor's attorneys fees and costs in
participating in such action if Lessor shall decide it is to its best
interest to do so.
-2-
17
EXHIBIT A
ADDENDUM TO LEASE DATED NOVEMBER 7, 1996
BETWEEN TELEHUB, INC. AND MAUSWERKS, INC.
1. PRINTED FORM SUBORDINATE TO ADDENDA
1.1 These addenda are an integral part of the attached agreement
which has been extended concurrently herewith and those addenda
supersede inconsistent provisions of the printed agreement.
2. RENT
2.1 December 1996 and January 1997 rents are waived in lieu of
certain tenant improvements.
The monthly rent schedule shall be as follows:
February 1997 $ 515
March 1997 $2475.00
April 1997 $2975.00
May 1997 $3475.00
May 1997-November 1999 $3975.00
*Tenant will have one 2 year option available at $3975
3. TENANT IMPROVEMENTS
3.1 Landlord agrees to do the following improvements to the space.
- Build-out one ADA compliant uni-sex restroom.
- Ceiling to be painted gray to match mezzanine.
- Broken windows to be replaced.
- Provide new front door with glass.
- Provide more accessible gate on front door.
- Doors to be installed on elevator.
- Conduit to be placed from the 2nd floor space to the
Telehub in the basement.
4. TENANT ALLOWED TO SUB-LET TO OTHER INTERNET SERVICE PROVIDERS,
TECHNOLOGY COMPANIES AND LIKE
4.1 Local access providers will be located in the basement.
Rent paying providers are exempt from cross-connect fee.
Tenant is exempt from cross connect fees.
5. TENANT ROOF LIGHTS
Tenant shall have the right to place 3 antennae, one 2 meter
and 2 DSS sized dishes on the roof at no charge.
6. PARKING
Tenant shall have use of 2 tandem parking spaces in the building
located in front of the freight elevator at a monthly rent of
$150 month on a month-to-month basis.
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EXHIBIT B
RIDERS
The following modifications and insertions, numbered Riders No. 1 and 2,
are hereby made and incorporated into the Lease and the other Exhibits thereto
and shall be deemed made at the respective places indicated in the Lease and
the Exhibits. In addition to the following Rider(s), certain deletions or
insertions of language may have been made at the places indicated throughout
the Lease. In the event of any conflict between this Exhibit B and the printed
provisions of the Lease or the other Exhibits, the provisions of this Exhibit
are intended to govern and control and the Lease and the other Exhibits shall
be construed accordingly. Any reference to the Lease in the following
provisions of this Exhibit B shall be deemed to include this Exhibit B, unless
otherwise specified in such reference. Terms used in this Exhibit B which are
defined in the Lease or the other Exhibits shall have the meanings given to
them in the Lease or the other Exhibits.
RIDER NO. 1 - OPTION TO RENEW
Subject to the terms and conditions hereinafter set forth, Lessor hereby grants
Lessee one (1) option to extend ("Option to Extend") the term of this Lease for
one (1) five (5) year period, commencing immediately after the expiration of
the initial term (the "Extension Term"). Lessee's election to exercise the
above Option to Extend must be given to Lessor in writing not less than 180
days prior to expiration of the last lease year of the original Term. DURING
THE LAST 270 DAYS OF THE INITIAL TERM, LESSOR SHALL UPON WRITTEN NOTICE FROM
LESSEE SPECIFY TO LESSEE FAIR MARKET RENT FOR THE PREMISES AS OF THE
COMMENCEMENT OF THE EXTENSION TERM.
Lessee's Option to Extend the term shall be upon the terms and conditions
contained herein except as set forth below and except that there shall be no
further option to extend the term beyond the Extension Term. If Lessee
exercises the Option to Extend, the Base Expenses Year and Base Tax Year shall
be changed from the date on the Lease Summary to the first year of the option
period or to such other date as is mutually approved by both parties. If Lessee
exercises the Option to Extend, the Base Rent for the Premises during the
Extension Term shall be ninety-five percent (95%) of the fair market rent for
the Premises determined in the manner set forth in Rider 2 below, provided that
in no event shall the Basic Rental payable during the Extension Term be less
than the amount of the Basic Rental payable at the end of the previous lease
year. As used herein, Fair Market Rent for the Premises shall mean the Basic
Rental and all other monetary payments and escalations, that Lessor could
obtain from a third party desiring to lease the Premises, taking into account
the size, location and floor level of the Premises, the quality of construction
of the Building, the services provided under the terms of this Lease, the
rental then being obtained for leases of space comparable to the Premises in
the Building, and within the downtown San Francisco Financial District and all
other factors that would be relevant to a willing third party desiring to lease
the Premises and a willing lessor desiring to let the Premises for the subject
period of the lease term in determining the rental such party would be willing
to pay or receive therefore provided that no allowance for the construction of
Lessee improvements shall be taken into account in determining Fair market Rent.
Notwithstanding anything to the contrary contained herein, all option rights of
Lessee pursuant to this Rider No. 1 shall automatically terminate without
notice and be of no further force and effect whether or not Lessee has timely
exercised the Option to Extend granted herein if an Event of Default (as
defined in Section 18 above) exists at the time of exercise of the option or at
the time of commencement of the Extension Term.
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RIDER NO. 2 -- DETERMINATION OF FAIR MARKET RENT
Fair market rent for the Premises as of the commencement of the Extension Term
(the "Adjustment Date") shall be specified by Lessor by notice to Lessee not
less than 180 days prior to the Adjustment Date, subject to Lessee's right of
arbitration as set forth below. If Lessee believes that the fair market rent
specified by lessor exceeds the actual fair market rent for the Premises as of
the Adjustment Date, then Lessee shall so notify Lessor within ten (10) business
days following receipt of Lessor's notice. If Lessee fails to so notify Lessor
within said ten (10) business days, Lessor's determination of the fair market
rent for the Premises shall be final and binding upon the parties. If the
parties are unable to agree upon fair market rent for the Premises within ten
(10) days after Lessor's receipt of notice of Lessee's objection, the fair
market rent as of the Adjustment Date shall be determined as follows:
(a) Within 20 days after receipt of Lessor's notice specifying the
fair market rent, Lessee, at its sole expense, shall obtain and deliver in
writing to Lessor a determination of the fair market rent for the Premises as of
the Adjustment Date, from a broker ("Lessee's broker") licensed in the State of
California and engaged in the office brokerage business in the City and County
of San Francisco for at least the immediately preceding five (5) years. If
Lessor accepts such determination the fair market rent for the Premises as of
the Adjustment Date shall be the amount determined by Lessee's broker.
(b) If Lessor does not accept such determination, within 15 days
after receipt of the determination of Lessee's broker, Lessor shall designate a
broker ("Lessor's broker") licensed in the State of California and engaged in
the office brokerage business in the City and County of San Francisco for at
least the entire immediately preceding five (5) years. Lessor's broker and
Lessee's broker shall name a third broker, similarly qualified, within five (5)
days after the appointment of Lessor's broker. Each of said three brokers shall
determine the fair market rent for the Premises as of the Adjustment Date within
15 days after the appointment of the third broker. The fair market rent for the
Premises as of the Adjustment Date shall equal the arithmetic average of such
three determinations; provided, however, if any such determination deviates more
than 10% from the median of such determinations, the fair market rent shall be
the average of the two closest determinations.
(c) Lessor shall pay the costs and fees of Lessor's broker in
connection with any determination hereunder, and Lessee shall pay the costs and
fees of Lessee's broker in connection with such determination. The costs and
fees of any third broker, shall be paid one-half by Lessor and one-half by
Lessee.
This exhibit is an attachment to the Mauswerks, Inc. lease that was assigned to
Colomotion on 8/97 as initialed by Peter Berns.
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July 17, 1997
Telehub, Inc.
15 Fern Road
Kentfield, CA 94904
Attn: Colomotion, Inc.
This letter summarizes the intent of Colomotion, Inc. and Telehub, Inc. in
reference to the Retail Lease Form signed on November 7, 1996 between Telehub,
Inc. and Mauswerks, Inc. The lease is for 3,975 square feet of space within
1019/1021 Mission Street in San Francisco, CA.
As a result of the ratification of a Settlement Agreement and Mutual Release
signed between Mauswerks, Inc. and Colomotion, Inc. Colomotion, Inc. now intends
to assume the aforementioned lease on behalf of Mauswerks, Inc. Colomotion, Inc.
will uphold all responsibilities that Mauswerks, Inc. agreed to in the lease
here attached. Once the lease is assigned to Colomotion, Inc. by Telehub, Inc.
and Mauswerks, Inc. by way of signature of Colomotion, Inc. Telehub, Inc. all
fees, rents and charges due from Tenant will be paid by Colomotion, Inc.
Telehub, Inc. upon receipt of a signed Settlement Agreement and Mutual Release
between Mauswerks, Inc. and Colomotion, Inc. will assign the attached lease to
Colomotion, Inc. Telehub, Inc. will then extend all privileges and rights that
Mauswerks, Inc. had as a result of said lease to Colomotion, Inc. for the
remaining time of the lease originally signed by Brian Topping, President of
Mauswerks, Inc. on November 7, 1996.
/s/ PAUL LARSON
- ----------------------
Paul Larson
President and CEO
Telehub, Inc.
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EXHIBIT B
This exhibit shall become a permanent addendum to the lease signed between
Telehub, Inc. and Mauswerks, Inc., which was then assigned to Colomotion, Inc.
for the second floor of 1021 Mission Street in San Francisco. Colomotion
requested of Telehub, Inc. assistance in acquiring a new HVAC system. In an
effort to help Colomotion finance the HVAC installation recently completed at
1021 Mission Street in San Francisco, Telehub, Inc. will let Colomotion spread
it's November 1997 and December 1997 lease payments over twelve equal
installments between January 1998 and December 1998. Colomotion will be
responsible for immediately paying Atlas Heating and having any liens against
Telehub, Inc. or 1021 Mission Street removed. The calculations for the
re-assignment of lease payments are to be as follows:
Deferred Rent Month Affected
$4,125 November 1997
$4,125 December 1997
$8,250 Total Deferred Payments
The 1998 lease amount due each month will be increased from $4,125 to include
1/12 of $8,250 or $687.50.
The new adjusted lease amount due for each month of 1998 is $4,812.50
Concur
Telehub, Inc.
/s/ [Signature Illegible]
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Concur
Colomotion, Inc.