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EXHIBIT 10.08
OFFICE LEASE
BASIC LEASE INFORMATION
Lease Date: September 1, 1997
Landlord: SOUTH BEACH DEVELOPMENT COMPANY,
a California general partnership
Address of Landlord. 501 Second Street, Suite 214
San Francisco, Ca 94107
Tenant: The Virtual Mall, Inc., California corporation
dba Greet Street
Address of Tenant: 123 Townsend Street, 3rd Floor
San Francisco, Ca 94107
Building: 501 Second Street, San Francisco, California
SECTION 1.1 Floor(s) and/or Suite(s): Suite 114
Rentable Area of Premises: 8,553 square feet
SECTION 2.1 Commencement Date: October 1, 1997
Expiration Date: September 30, 1999
SECTION 3.1 Monthly Rent, 19ee Exhibits B, E and F
SECTION 3.2 Advance Rent S 17,106.00
SECTION 3.5 Security Deposit S 18,175.13
SECTION 4.1(a) Tenant's Percentage Share' 4.53%
SECTION 4.1(b) Base Year 1998 calendar year
SECTION 5.1 Tenants Share of Improvement Costs: See Exhibit C
SECTION 17.2 Insurance: $1,500,000
SECTION 24.1 Parking Spaces: five(5) spaces in the Garage and
zero spaces in the Federal Street
Parking Area
SECTION 24.2 Rentable Area of Storage Space- N/A
SECTION 26.14 Broker General Atlantic Properties, Inc.
EXHIBITS Exhibit A-Floor Plans
ATTACHED: Exhibit B-Monthly Premises Rent
Exhibit C-Tenant Improvements
Exhibit D-Rules and Regulations
Exhibit E-Monthly Parking Rent
Exhibit F-Monthly Storage Rent
ADDENDUMS
ATTACHED: None
The foregoing Basic Lease Information is hereby incorporated into and made a
part of this Lease. Each reference in this Lease to any of the Basic Lease
Information shall mean the respective information hereinabove set forth and
shall be construed to incorporate all of the terms provided under the particular
Lease section pertaining to such information. In the event of any conflict
between any Basic Lease Information and the Lease, the latter shall control.
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STANDARD OFFICE LEASE
THIS LEASE is made and entered into this 1st day of September, 1997 by and
between SOUTH BEACH DEVELOPMENT COMPANY, a California general partnership
(herein called "landlord"), and The Virtual Mall, Inc., a California
corporation, dba Greet Street (herein called "Tenant").
WITNESSETH:
Landlord and Tenant hereby covenant and agree as follows:
1. PREMISES
1.1 Upon and subject to the terms, covenants, and conditions hereinafter
set forth, Landlord leases to Tenant and Tenant hires from Landlord, those
premises (herein called the "Premises") in the building commonly known as 501
Second Street, San Francisco, California (the "Building"), comprising the area
substantially as shown on the floor plan or plans that have been initialed by
Landlord and Tenant and are attached hereto as Exhibit A. The Premises contain
the rentable area specified in the Basic Lease Information and are located on
the floor(s) of the Building that is (are) specified in the Basic Lease
Information. The Building contains seven (7) occupied floors ("Floors 1-7") plus
one floor of storage and auxiliary use (the "Terrace") and one floor of parking
(the "Garage"). Additional parking is located along the south side of the
Building adjacent to Federal Street (the "Federal Street Parking Area"). The
Building the land upon which the Building stands, together with utilities,
facilities, drives walkways and other amenities appurtenant to or servicing the
Building are herein sometimes collectively called the "Real Property." The Real
Property and certain adjacent parcels comprise the "Complex." Covenants (the
"Complex Covenants") dealing with various shared facilities and services as well
as other matters encumber the Real Property and the other Is in the Complex.
1.2 The purpose of Exhibit A is to show the approximate location of the
Premises in the Building only, and such Exhibit is not meant to constitute an
agreement as to the construction of the Premises, the rentable area thereof, or
the specific location of the common area or the elements thereof or of the
accessways to the Premises or the Building.
2. TERM
2.1 The Premises are leased for a term (herein called the "Term") which
commences on the "Commencement Date" and terminates on the "Expiration Date,"
which dates are collectively specified in the Basic Lease Information, unless
the Term shall sooner terminate as hereinafter provided. Notwithstanding the
foregoing, if Landlord, for any reason beyond its reasonable control, is unable
to deliver possession of the Premises to Tenant on or prior to the Commencement
Date set forth in the Basic Lease Information, 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, Rent and Additional Charges (as defined
in Article 3) shall be abated for the period of time between the Commencement
Date set forth in the Basic Lease Information and the time when Landlord can
deliver possession as provided in Section 5 below. No delay in delivery of
possession shall operate to extend the Expiration Date beyond the date specified
in the Basic Lease Information.
2.2 In the event that Tenant takes occupancy of the Premises prior to
the Commencement Date, Tenant's obligations, including the obligation to pay
rent, under this Lease shall commence upon such occupancy, and shall continue
until the Expiration Date. Notwithstanding the above, following execution of
this Lease, Tenant shall have access to the Premises for purposes of installing
furniture, cabling and other equipment, provided it does not interfere with the
construction of the Tenant Improvements at the Premises. Such access shall not
obligate Tenant to pay any rent under the Lease.
2.3 Notwithstanding anything to the contrary herein contained, in the
event that possession of the Premises has not been delivered to Tenant within
two (2) months after the Commencement Date, then this Lease shall be
automatically terminated without any further act of either party hereto and both
parties hereto shall be released from all obligations hereunder, and all prepaid
rents and deposits shall be returned to Tenant.
3. RENT, ADDITIONAL CHARGES AND SECURITY DEPOSIT
3.1 Tenant shall pay to Landlord during the Term the monthly rent
specified in Exhibits B, E and F (collectively referred to herein as "Rent"),
which sums shall be payable by Tenant on or before the first day of each month,
in advance, at the address specified for Landlord in the Basic Lease
Information, or such other place as Landlord shall designate, without any prior
demand therefor and without any deductions or setoff whatsoever. If the
Commencement Date should occur on a day other than the first day of a calendar
month, or the Expiration Date should occur on a day other than the last day of a
calendar month, then the rental for such fractional month shall be prorated upon
a daily basis based upon a thirty (30) day calendar month.
3.2 Upon the execution hereof, Tenant shall pay to Landlord the sum of
"Advance Rent" specified in the Basic Lease Information. Such Advance Rent shall
be applied to the first Rent due pursuant to Section 3.1.
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3.3 Tenant shall pay to Landlord all charges and other amounts specified
in this Lease (herein called "Additional Charges"), including, without
limitation, any increase in the Rent resulting from the provisions of Article 4
hereof. All such amounts and charges shall be payable to Landlord at the place
where the Rent is payable. Landlord shall have the same remedies for a default
in the payment of Additional Charges as for a default in the payment of Rent.
3.4 If Tenant shall fail to pay any Rent or Additional Charges within
ten (10) days after the date same are due and payable, such unpaid amounts shall
be subject to a late payment charge equal to five percent (5%) of such unpaid
amounts in each instance to cover Landlord's additional administrative costs
resulting from Tenant's failure. Such late payment charge shall be paid to
Landlord together with such unpaid amounts. Any payment to Landlord following
the service upon Tenant a three (3) day notice to pay Rent or quit shall be in
the form of a certified or cashier's check.
3.5 By execution of this Lease, Landlord acknowledges receipt of
Tenant's security deposit (the "Security Deposit") in the amount set forth in
the Basic Lease Information. The Security Deposit shall be held by Landlord as
security for Tenant's faithful performance of all terms, covenants and
conditions of this Lease. Tenant agrees that Landlord may, without waiving any
of Landlord's other rights and remedies under this Lease upon the occurrence of
any of the events of default described in Article 16 hereof, apply the Security
Deposit to remedy any failure by Tenant to repair or maintain the Premises or to
perform any other terms, covenants or conditions contained herein. Landlord will
within thirty (30) days following the termination hereof return said sum to
Tenant or the last permitted assignee of Tenant's interest hereunder, less any
amounts retained by Landlord to cure any default by Tenant. Should Landlord use
any portion of the Security Deposit to cure any default by Tenant hereunder,
Tenant shall within five (5) days after written demand therefor deposit cash
with Landlord sufficient to restore the Security Deposit to its original amount.
Landlord shall not be required to keep the Security Deposit separate from its
general funds, and Tenant shall not be entitled to interest thereon.
4. TENANT'S SHARE OF INCREASED COSTS
4.1 For purposes of this Lease, the following terms shall have the
meanings hereinafter set forth
(a) "Tenants Percentage Sham" shall mean the percentage figure
so specified in the Basic Lease Information. Tenant's Percentage Share has been
computed by dividing the rentable area of the Premises by the total rentable
area of Floor 1-7 and multiplying the resulting quotient by 100. In the event
that either the rentable area of the Premises or the total rentable area of
Floors 1-7 is changed, Tenants Percentage Share will be appropriately adjusted
(b) "Base Year" shall mean the twelve-month period commencing on
January I of the year identified as the Base Year in, the Basic Lease
Information.
(c) "Real Estate Taxes" shall mean all taxes, assessments and
charges levied upon or with respect to the Real Property or any personal
property of Landlord used in the operation thereof or Landlord's interest in the
Real Property or such personal property. Real Estate Taxes shall include,
without limitation, all general real property taxes and general and special
assessments charges, fees or assessments for transit, housing, police, fire or
other governmental services or purported benefits to the Real Property, service
payments in lieu of taxes, and any tax, fee or excise on the act of entering
into this Leas or any other lease of space in the Building, or on the use or
occupancy of the Real Property or any part thereof, or on the rent payable under
any lease or in connection with the business of renting space in the Building,
that are now or hereafter levied or assessed against Landlord by the United
States of America, the State of California, or any political subdivision, public
corporation, district or other political or public entity, and shall also
include any other tax, fee or other excise, however described, that may be
levied or assessed as a substitute for, in whole or in part, any other Real
Estate Taxes, whether or not now customary or in the contemplation of the
parties on the date of this Lease. Real Estate Taxes shall not include late
charges or interest on Real Estate Taxes, franchise, transfer, inheritance,
capital stock or income taxes unless, due to a change in the method of taxation,
any of such taxes is levied or assessed against Landlord as a substitute for,
any other tax that would otherwise constitute a Real Estate Tax. Real Estate
Taxes shall also include reasonable legal fees, costs and disbursements incurred
in connection with proceedings to contest, determine or reduce Real Estate
Taxes.
4.4 As soon after the close of each calendar year as practicable,
landlord shall deliver to Tenant a statement of the actual Operating Expenses
for such calendar year. If the Actual Operating Expenses are less than the
estimated payments for such calendar year previously made by Tenant and Tenant
is not in default in the performance or observance of any of the terms,
covenants or conditions of this Lease at the time such statement is delivered,
Landlord shall credit the excess to the next payment of Rent falling due under
this Lease. If the Actual Operating Expenses are more than the estimated
payments for such calendar year previously made by Tenant, Tenant shall pay the
deficiency to Landlord within thirty (30) days after delivery of such statement
The respective obligations of Landlord and Tenant under this Section 4.4 shall
survive the expiration or other termination of the term of this Lease, and if
the term of this 1,ease shall. expire or terminate on a day other ban the last
day of the calendar year, the adjustment in Rent pursuant to this Section 4.4
for the calendar year in which the term expires or otherwise terminates shall be
prorated in the proportion that the number of days in such year preceding
expiration or termination of the lease bears to the number 365.
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5. CONSTRUCTION IN THE PREMISES
5.1 Prior to the Commencement Date, Landlord will substantially complete
work in the Premises as set forth in Exhibit C attached hereto and made a part
hereof (such work being herein called "Tenant Improvements"). Substantial
completion and delivery of possession of the Premises to Tenant shall be deemed
to have occurred when Landlord delivers to Tenant (i) the Premises with all
Tenant Improvements completed except for minor items of the type typically found
on an architect's punchlist and (ii) a temporary certificate of occupancy or
similar governmental approval. It is agreed that by occupying the Premises,
Tenant acknowledges that the Premises are in the condition called for hereunder,
subject to normal punchlist items specified by Tenant to landlord in writing
within ten ( 10) days after the date of such occupancy (which Landlord will
complete within ten (10) days of receipt) and subject to Landlord's warranty
that the Tenant Improvements will be free of defects in materials and
installation for a period of one (1) year after substantial completion. The cost
of Tenant Improvements shall be paid by Landlord and Tenant as set forth in
Exhibit C.
5.2 Landlord reserves the right, at any time and from time to time, to
make alterations, additions, repairs or improvements to or in or to decrease the
size or area of all or any part of the Building and the Complex, the fixtures
and equipment therein and the arcades, plazas, and walkways outside the
Building, including without limitation the heating, ventilating, air
conditioning plumbing, electrical, fire protection, life safety, security, and
other mechanical, electrical, and communications systems of the Building (herein
called the "Building Systems"), and the common areas in all other parts of the
Building and the Complex, and to change the arrangement and/or location of
entrances or passageways, doors and doorways, corridors, elevators, stairs,
toilets and other public parts of the Building and the Complex; provided,
however, that any such alterations or additions shall not materially diminish
the quality or quantity of services being provided to the Premises or adversely
affect the functional utilization of the Premises.
6. USE AND COMPLIANCE WITH LAW
6.1 Tenant shall use the Premises for general office purposes and shall
not use or permit the premises to be used for any other purpose without the
prior written consent of Landlord. Tenant shall not do or permit anything to be
done in or about the Premises nor bring or keep anything therein which will in
any way increase the existing rate of or affect any fire or other insurance upon
the Building or any of its contents, or cause cancellation of any insurance
policy covering said Building or any part thereof of any of its contents. Tenant
shall not do or permit anything to be done in or about the Premises which will
in any way obstruct or interfere with the rights of other tenants or occupants
of the Building or injure or annoy them or use or allow the Premises to be used
for any improper, immoral, unlawful or objectionable purpose, nor shall Tenant
cause, maintain or permit any nuisance in, on or about the Premises. Tenant
shall not commit or suffer to be committed any waste in or upon the Premises.
6.2 Tenant, at Tenant's cost and expense, shall comply with (a) all
laws, orders, regulations, and directions of federal, state, county and
municipal authorities that impose any duty upon Tenant with respect to Tenant's
particular use of the Premises or the use or occupancy thereof, and (b) all
reciprocal easement agreements and declarations of conditions, covenants, and
restrictions that are recorded against and affect the Building or the Premises;
provided, however, that Tenant shall not be required to make any modifications
to the Premises in order to comply unless such modifications to the Premises
shall be necessitated or occasioned, in whole or in part, by the misconduct or
negligence of Tenant or any person claiming through or under Tenant, or any of
their servants, employees contractors, agents, visitors or licensees. Any work
or installations made or performed by or on behalf of Tenant or any person
claiming through or under Tenant pursuant to the provisions of this Article 6
shall be made in conformity with, and subject to the provisions of, Section 8.2
hereof.
7. ALTERATIONS AND ADDITIONS
7.1 Subsequent to the completion of improvements to be performed as
outlined in Exhibit C, Tenant shall not make or suffer to be made any
alterations, additions or improvements (collectively, "Alterations"), to or of
the Premises or any part thereof, or attach any fixtures or equipment thereto,
without first obtaining landlord's written consent which consent shall not be
unreasonably withheld. Any Alterations to the Premises consented to by Landlord
shall be made by Landlord or an agent or contractor designated by Landlord for
Tenants account and Tenant shall reimburse Landlord for the cost thereof
(including a reasonable charge for Landlord's overhead) within ten (10) days
after receipt of a bill therefor. All Alterations shall immediately become
Landlord's property and, at the end of the term hereof, shall remain on the
Premises without compensation to Tenant unless Landlord elects by notice to
Tenant to have Tenant remove the same, in which event Tenant shall promptly,
restore the Premises to their condition prior to the installation of such
Alterations.
7.2 All furniture, furnishings, and articles of movable personal
property installed in the Premises by or for the account of Tenant, without
expense to Landlord, and which can be removed without structural or other
material damage to the Building (all of which are herein called "Tenant's
Property") shall be and remain the property of Tenant and may be removed by it
at any time during the Term; provided, however, that any equipment or other
property for which Landlord has granted any allowance or credit to Tenant or
which is a replacement for items originally provided by Landlord at Landlord's
expense shall not be considered Tenant's Property. Upon the expiration or
earlier termination of this Lease, Tenant shall remove from the Premises all of
Tenant's Property except such items as the parties shall have agreed are to
remain and become the property of Landlord and Tenant shall repair or pay the
costs of repairing any damage to the Premises or to the Building resulting from
such
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removal. Tenants obligations under this Section 7.2 shall survive the
termination of this Lease. Any items of Tenant's Property that remain in the
Premises after the expiration or earlier termination of this Lease may, at the
option of Landlord, be deemed abandoned and in such case may either be retained
by Landlord as its property or be disposed of without accountability, at
Tenant's expense in such manner as Landlord may see fit.
8. REPAIRS
8.1 Tenant shall, at all times during the term hereof and at Tenant's
sole cost and expense, keep the Premises and every part thereof in good
condition and repair, ordinary wear and tear excepted, and except as is
Landlord's obligation pursuant to Section 8.2.
Tenant shall at the end of the term hereof surrender to Landlord the
Premises and all Alterations in the same condition as when received,
ordinary wear and tear and damage by fire, earthquake, act of God or the
elements excepted. Landlord has no obligation and has made no promise to
alter, remodel, improve, repair, decorate or paint the Premises or any
part thereof, except as specifically set forth elsewhere in this Law.
8.2 Landlord shall repair and maintain the structural portions of the
Building, including the plumbing, heating, air conditioning, ventilating and
electrical systems, installed or furnished by Landlord, unless the necessity for
such maintenance and repairs is in any way caused by the neglect, fault or
omission of any duty by Tenant, its agents, servants, employees or invitees, in
which case Tenant shall pay to Landlord the reasonable cost of such maintenance
and repairs, subject to Section 17.4 hereof. Landlord shall not be liable for
any failure to make any such repairs or to perform any maintenance unless
Landlord receives written notice of the need for such repairs or maintenance
from Tenant and fails to make such repairs or perform such maintenance for a
reasonable period of time following such notice by Tenant. There shall be no
abatement of rent and no liability of Landlord by reason of any injury to or
interference with Tenant's business arising from the making of any repairs,
alterations or improvements in or to any portion of the Building or the Premises
or in or to fixtures, appurtenances and/or equipment therein, provided such
repairs are being diligently pursued by Landlord.
9. LIENS
9.1 Tenant shall keep the Premises free from any liens arising out of
any work performed, material furnished, or obligations incurred by or for
Tenant or any person or entity claiming through or under Tenant. In the event
that Tenant shall not, within ten (10) days after the imposition of any such
lien, cause the same to be released of record by payment or posting of a proper
bond, Landlord shall have, in addition to all other remedies provided herein and
by law, the right but not the obligation to cause the same to be released by
such means as it shall deem proper, including payment of the claim giving rise
to such lien. All such sums paid by Landlord and all expenses incurred by it in
connection therewith shall be considered Additional Charges and shall be payable
to it by Tenant on demand. Landlord shall have the right at all times to post
and keep posted on the Premises any notices permitted or required by law, or
that Landlord shall deem proper, for the protection of Landlord, the Premises,
the Building, and any other party having an interest therein, from mechanics'
and materialmen's liens, and Tenant shall give to Landlord at least ten (10)
business days' prior notice of commencement of any construction on the Premises.
10. SUBORDINATION AND ATTORNMENT
10.1 Without the necessity of any additional document being executed by
Tenant for the purpose of effecting a subordination Tenant agrees that this,
Lease shall be subject and subordinate at all times to (a) all ground leases or
underlying leases that may now exist or hereafter be executed affecting the
Building or the Real Property or both, and (b) the lien of any mortgage or deed
of trust that may now exist or hereafter be executed in any amount for which the
Building, the Real Property, ground leases or underlying leases, or Landlord's
interest or estate in any of said items is specified as security.
Notwithstanding the foregoing, Landlord shall have the right to subordinate or
cause to be subordinated any such ground leases or underlying leases or any such
liens to this Lease. In the event that any ground lease or underlying lease
terminates for any reason or any mortgage or deed of trust is foreclosed or a
conveyance in lieu of foreclosure is made for any reason, Tenant shall,
notwithstanding any subordination of any ground lease, underlying lease or Hen
to this Lease, attorn to and become the Tenant of the successor in interest to
Landlord; provided that such successor in interest shall recognize all of
Tenant's rights hereunder. Tenant covenants and agrees to execute and deliver,
within ten (10) days of demand by Landlord and in the form reasonably requested
by landlord, any additional documents evidencing the priority or subordination
of this Lease with respect to any such ground leases or underlying leases or the
lien of any such mortgage or deed of trust.
11. INABILITY TO PERFORM
11.1 If Landlord is unable to perform, or is delayed in performing, any
construction, installations, decorations, repairs, alterations, additions or
improvements, under this Lease, or is unable to fulfill or is delayed in
fulfilling any of Landlord's other obligations under this Lease, including the
furnishing of utilities or other services pursuant to Article 15, by reason of
acts of God, governmental actions, accidents, breakage, repairs, strikes,
lockouts, other labor disputes, limitation, curtailment, rationing or
restrictions on the use of utilities or materials, or any other reason beyond
Landlord's reasonable control, then no
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such inability or delay by Landlord shall constitute an actual or constructive
eviction, in whole or in part, or entitle Tenant to any abatement or diminution
of Rent or Additional Charges, or relieve Tenant from any of its obligations
under this Lease, or impose any liability upon Landlord or its agents by reason
of inconvenience, annoyance, interruption, injury or loss to or interference
with Tenant's business or use and occupancy or quiet enjoyment of the Premises
or any loss or damage occasioned thereby.
12. DAMAGE OR DESTRUCTION
12.1 If (i) the Premises are damaged by fire or other casualty for which
insurance coverage is available to Landlord, (h) insurance proceeds in an amount
sufficient to repair such casualty are made available to Landlord and (iii) in
Landlord's judgment such repairs can be completed within one hundred eighty
(180) days after the date of such damage, then Landlord shall repair such damage
and this Lease shall remain in full force and effect except that Tenant shall be
entitled to a reduction of Rent and Additional Charges while such repairs are
being made in the proportion that the rentable area of the Premises rendered
untenantable (as pertains to Tenant's specific business in particular) by such
damage bears to the total rentable area of the Premises. Within thirty (30) days
after the date of such damage, Landlord shall notify Tenant whether or not such
repairs can be completed within one hundred eighty (180) days after the date of
such damage, and Landlord's determination shall be binding on Tenant. If (x)
such damage is caused by an uninsured casualty, or (y) such damage is caused by
an insured casualty for which insurance proceeds sufficient to repair such
damage are not made available to Landlord and/or W such repairs cannot be made
within one hundred eighty (ISO) days after the date of such damage, in
Landlord's judgment as determined above, then, in any such event, Landlord shall
have the option either to (a) notify Tenant of Landlord's intention to repair
such damage and diligently prosecute such repairs to completion, in which event
this Lease shall continue in full force and effect subject to Tenant's
acceptance and the Rent and Additional Charges shall be reduced as provided
herein, or (b) notify Tenant of Landlord's election to terminate this Lease by
giving such notice of termination as of a date specified in such notice, and the
Rent and Additional Charges, proportionately reduced as provided above, shall be
paid up to the date of such termination, with Landlord refunding to Tenant any
Rent and Additional Charges previously paid for any period of time subsequent to
such date. If Landlord elects or is required to repair the Premises or the
Building pursuant to this Section 12, the repairs to be made by Landlord shall
not include, and Landlord shall not be required to repair or replace any
fixtures, equipment, furniture, or other property of Tenant in the Premises, for
loss of use of all or any part of the Premises, for any damage to Tenant's
business or profits, or for any disturbance to Tenant caused by any casualty or
the restoration of the Premises following such casualty. A total destruction of
the Building shall automatically terminate this lease.
12.2 The provisions of this Lease, including this Article 12, constitute
an express agreement between Landlord and Tenant with respect to any and all
damage to, or destruction 4 all or any part of the Premises or the Building, and
any statute or regulation of the State of California, including, without
limitation, Sections 1932(2) and 1933(4) of the California Civil Code, with
respect to any rights or obligations concerning damage or destruction in the
absence of an express agreement between the parties, and any other statute or
regulation, Dow or hereafter in effect, shall have no application to this Lease
or my damage or destruction to all or any part of the Premises or the Building.
13. EMINENT DOMAIN
13.1 If all or any part of the Premises is condemned or taken in any
manner for public or quasi-public use, including, but not limited to, a
conveyance or assignment in lieu of a condemnation or taking, this Lease shall
terminate as to the part so taken on the earlier to occur of the date of the
vesting of title or the date of dispossession of Tenant as a result of such
condemnation or taking, and either Landlord or Tenant shall have the right to
terminate this Lease as to the balance of the Premises by written notice to the
other party within thirty (30) days if the portion of the Premises taken shall
be of such extent and nature as to render the balance of the Premises
untenantable and unusable by Tenant If any part of the Building other than the
Premises is condemned or otherwise taken so as to require, in the opinion of
Landlord, a substantial alteration or reconstruction of the remaining portions
thereof, this Lease may be terminated by Landlord, as of the earlier of the date
of the vesting of title, or the date of disposition as a result of such
condemnation or taking, by written notice to Tenant within sixty (60) days
following notice to Landlord of the date on which said vesting or dispossession
will occur. If the Lease is not so terminated, Landlord shall proceed to repair
and reconstruct the remaining portion of the Building to the extent insurance
and condemnation-proceeds are available to do so.
13.2 Landlord shall be entitled to the entire award in any condemnation
proceeding or other proceeding, including, without limitation, any award made
for the value of the leasehold estate created by this Lease. No award for any
partial or entire taking shall be apportioned, and Tenant hereby assigns to
Landlord any award that may be made in such condemnation or other taking,
together with any and all rights of Tenant now or hereafter arising in or to
same or any part thereof, provided, however, that nothing contained herein shall
be deemed to give Landlord any interest in or to require Tenant to assign to
Landlord any award made to Tenant specifically for its relocation expenses or
the taking of personal property and fixtures belonging to Tenant.
13.3 In the event of a partial condemnation or other taking that does
not result in a termination of this Lease as to the entire Premises, the Rent
and Additional Charges shall abate in the proportion that the rentable area of
the Premises taken by such condemnation or other taking bears to the total
rentable area of the Premises.
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13.4 If all or any portion of the Premises is condemned or otherwise
taken for public or quasi-public use for a limited period d time, this Lease
shall remain in full force and effect and Tenant shall continue to perform all
of the terms, conditions and covenants of this Lease; provided, however, that
the Rent and Additional Charges shall abate during such limited period in the
proportion that the rentable area of the Premises rendered untenantable and
unusable as a result of such condemnation or other taking bears to the total
rentable area of the Premises. Landlord shall be entitled to receive the entire
award made in connection with any such temporary condemnation or other taking.
13.5 Not Used.
14. ASSIGNMENT AND SUBLETTING
14.1 Tenant shall not sell, assign, encumber, pledge or otherwise
transfer or hypothecate all of its interest in or rights with respect to the
Premises or Tenant's leasehold estate hereunder (collectively, "Assignment"), or
permit all or any portion of the Premises to be occupied by anyone other than
Tenant or sublet all or any portion of the Premises or transfer a portion of its
interest in or rights with respect to Tenants leasehold estate hereunder
(collectively, "Sublease") without Landlord's prior written consent in each
instance, which consent shall not be unreasonably withheld.
14.2 If Tenant desires at any time to enter into an Assignment of this
Lease or a Sublease of the Premises or any portion thereof, it shall first give
written notice to Landlord of its desire to do so, which notice shall contain
(a) the name of the proposed assignee, subtenant or occupant, (b) the nature of
the proposed assignee's, subtenant's or occupant's business to be carried on in
the Premises, (c) the terms and provisions of the proposed Assignment or
Sublease, and (d) such financial information as Landlord may reasonably request
concerning the proposed assignee, subtenant or occupant. At any time within
thirty (30) days after Landlord's receipt of the notice specified in this
Section 14.2, Landlord may by written notice to Tenant either consent to the
Sublease or Assignment or disapprove the Sublease or Assignee As a condition for
granting its consent to any Assignment or Sublease, Tenant shall pay to Landlord
fifty percent (50%) of the amount by which all sums payable to Tenant in
connection with such Assignment or Sublease (after deducting leasing
commissions, tenant improvement costs and similar expenses payable in connection
with such Assignment or Sublease) exceed the Rent and Additional Charges payable
by Tenant to Landlord hereunder (or a proportionate amount thereof representing
the portion of the Premises subject to a Sublease if less than the entire
Premises is subject to a Sublease).
14.3 No consent by Landlord to any Assignment or Sublease by Tenant
shall relieve Tenant of any obligation to be performed by Tenant under this
Lease, whether arising before or after the Assignment or Sublease. The consent
by Landlord to any Assignment or Sublease shall not relieve Tenant from the
obligation to obtain Landlord's express written consent to any other Assignment
or Sublease. Any Assignment or Sublease that is not in compliance with this
Article 14 shall be void and, at the option of Landlord, shall constitute a
material default by Tenant under this Lease. The acceptance of Rent or
Additional Charges by Landlord from a proposed assignee or sublessee shall not
constitute the consent to such Assignment or Sublease by Landlord.
14.4 Any sale or other transfer, including by consolidation, merger or
reorganization, of a majority of the voting stock of Tenant, if Tenant is a
corporation or any sale or other transfer of a majority of the partnership
interests in Tenant if Tenant is a partnership, shall be an Assignment for
purposes of this Article 14.
14.5 Each assignee, sublessee, or other transferee, other than Landlord,
shall assume, as provided in this Section 14.5, all obligations of Tenant under
this Lease and shall be and remain liable jointly and severally with Tenant for
the payment of Rent and Additional Charges, and for the performance of all the
terms, covenants, conditions and agreements herein contained on Tenant's part to
be performed for the Term; provided, however, that the assignee, sublessee,
mortgagee, pledgee or other transferee shall be liable to Landlord for rent only
in the amount set forth in the Assignment or Sublease. No Assignment shall be
binding on Landlord unless the assignee of Tenant shall deliver to Landlord a
counterpart of the Assignment and an instrument in recordable form that contains
a covenant of assumption by the assignee satisfactory in substance and form to
Landlord, consistent with the requirements of this Section 14.5, but the failure
or refusal of the assignee to execute such instrument of assumption shall not
release or discharge the assignee from its liability as set forth above.
14.6 In the event Tenant shall assign this Lease or sublet the Premises
or shall request the consent of Landlord to any assignment or subletting, then
Tenant shall pay Landlord's reasonable attorney's fees incurred in connection
therewith.
14.7 Notwithstanding anything to the contrary contained in this Section
14, the following transactions shall not require the consent of Landlord: (a)
77 resale of stock by Tenant or its shareholders pursuant to a public offering,
(b) 77 resale of stock by shareholders of Tenant on a national securities
market, such as a stock exchange or NASDAQ.
15. SERVICES AND UTILITIES
15.1 Landlord shall furnish to the Premises during the period from 8 00
am. to 6 00 p.m., Monday through Friday, except for New Years Day, Washington's
Birthday, Memorial Day, Independence Day, Labor Day, Thanksgiving, Christmas and
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such other holidays as are generally recognized in San Francisco (such time
periods exclusive of holidays being referred to herein as "Normal Business
Hours"), (a) heating, air conditioning and ventilation in amounts required for
the use and occupancy of the Premises for general office purposes, (b) elevator
service, (c) electric current in amounts required for normal office lighting and
for normal fractional horsepower office machines, and (d) water for lavatory and
drinking purposes. Notwithstanding the foregoing it is understood that elevator
service, electric current and water will be available at all times, subject to
Sections 15.2, 15.3 and 15.4 hereof. Landlord shall provide five (5) days per
week janitorial service generally consistent with that furnished in other
similar office buildings and window washing as determined by Landlord.
15.2 Landlord may impose a reasonable charge for the use of any heating,
air conditioning, ventilation or lighting by Tenant at any time other than
during Normal Business Hours.
15.3 In the event any governmental entity promulgates or revises any
statute, ordinance or building, fire or other code or imposes mandatory or
voluntary controls or guidelines on Landlord or the Building or any pan thereof,
relating to the use or conservation of energy, water, gas, light or electricity,
or the reduction of automobile or other emissions, or the provision of any other
utility or service provided with respect to this Lease, or in the event Landlord
is required or elects to make alterations to the Building in order to comply
with such mandatory or voluntary controls or guidelines, Landlord may, in its
sole discretion, comply with such mandatory or voluntary controls or guidelines
or make such alterations to the Building. Such compliance and the making of such
alterations shall in no event entitle Tenant to any damages, relieve Tenant of
the obligation to pay the M Rent and Additional Charges reserved hereunder or
constitute or be construed as a constructive or other eviction of Tenant.
15.4 Without the prior written consent of Landlord, which Landlord may
refuse in its sole discretion, Tenant - shall not (i) use any apparatus; or
device in the Premises other than ordinary office machinery and equipment,
machines using current in excess of 220 volts, which will in any way increase
the amount of electricity or water usually furnished or supplied for use of the
Premises as general office space, or (ii) connect any apparatus, machine or
device with electric current except through existing electrical outlets in the
Premises. If Tenant shall utilize electric current in excess of that usually
supplied for use of the Premises as general office space, Landlord shall have
the right to install an electric current meter in the Premises to measure the
amount of electric current consumed on the Premises. The cost of any such meter
and separate conduit, wiring or panel requirements and the installation,
maintenance and repair thereof shall be paid for by Tenant, and Tenant agrees to
reimburse Landlord promptly upon demand for all electric current measured by
said meter at the rates charged for such services by the local public utility,
plus any additional expense incurred by Landlord in accounting for electric
current so consumed. If a separate meter is not installed, the amount of excess
electric consumption in the Premises and the monthly cost thereof shall be
estimated by the utility company or an electrical engineer and Tenant shall pay
such excess to Landlord on a monthly basis. If the temperature otherwise
maintained in any portion of the Premises by the heating, air conditioning or
ventilation systems is affected a result of (a) any lights, machines or
equipment (including without limitation electronic data processing machines)
used by Tenant in the Premises other than ordinary office machinery and
equipment, or (b) the occupancy of the Premises by more than one person per one
hundred (100) square feet of rentable area therein, Landlord shall have the
right to install any machinery and equipment that Landlord reasonably deems
necessary to restore temperature balance, including, without limitation,
modifications to the standard air conditioning equipment, and the cost thereof,
including the cost of installation and any additional cost of operation and
maintenance incurred thereby, shall be paid by Tenant to Landlord upon demand.
16. DEFAULT AND REMEDIES
16.1 The occurrence of any one or more of the following events shall
constitute a default and breach of this Lease by Tenant:
(a) The vacating or abandonment of the Premises by Tenant for a
continuous period in excess of ten (10) days.
(b) The failure of Tenant to make any payment of Rent or any
other sum or payment due from Tenant hereunder within ten (10) days after
delivery of a written demand from Landlord therefor.
(c) The failure by Tenant to observe or perform any of the
covenants, conditions or provisions of this Lease, other than described in
Section 16.1 (b) above, where such failure shall continue for a period of twenty
(20) days after written notice thereof by Landlord to Tenant; provided, however,
that if the nature of Tenant's default is such that more than twenty (20) days
are reasonably required for its cure, then Tenant shall not be deemed to be in
default if Tenant commences such cure within said twenty (20) day period and
thereafter diligently prosecutes such care to completion.
(d) The making by Tenant of any general assignment or general
arrangement for the benefit of creditors; or the filing by or against Tenant of
a petition to have Tenant adjudged a bankrupt, or a petition of reorganization
or arrangement under any law relating to bankruptcy (unless in the case of such
petition filed against Tenant, the same is dismissed within sixty (60) days); or
the appointment of a trustee or a receiver to take possession of all or
substantially all of Tenant's assets located at the Premises or of Tenant's
interest in this Lease, where possession is not restored to Tenant within thirty
(30) days or the attachment, execution or other judicial seizure of all or
substantially all of Tenant's assets located at the Premises or of
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Tenant's interest in this Lease, where such seizure is not discharged in thirty
(30) days; the admission by Tenant in writing of the inability to pay its debts
as they become due.
16.2 Upon the occurrence of a default by Tenant as provided in Section
16.1, Landlord shall have the following rights and remedies in addition to all
other rights and remedies available to Landlord in law or equity:
(a) The rights and remedies provided by California Civil Code
Section 1951.2, including, but not limited to, the right to terminate Tenant's
right to possession of the Premises and to recover the worth at the time of
award of the amount by which the unpaid Rent and Additional Charges for the
balance of the Term after the time of award exceed the amount of rental loss for
the same period that the Tenant proves could be reasonably avoided, as computed
pursuant to subsection (b) of said Section 1951.2;
(b) The rights and remedies provided by California Civil Code
Section 1951.4, which allows Landlord to continue this Lease in effect and to
enforce all of its rights and remedies under this Lease, including the right to
recover Rent and Additional Charges as they become due, for so long as Landlord
does not terminate Tenant's right to possession. Acts of maintenance or
preservation, efforts to relet the Premises or the appointment of a receiver
upon Landlord's initiative to protect its interest under this Lease shall not
constitute a termination of Tenant's right to possession;
(c) The right to terminate this Lease by giving notice to Tenant
in accordance with applicable law;
(d) The right and power, as attorney-in-fact for Tenant, to
enter the Premises and remove therefrom all persons and property, to store such
property in a public warehouse or elsewhere at the cost of and for the account
of Tenant, and to sell such property and apply the proceeds therefrom pursuant
to applicable California law. Landlord, as attorney-in-fact for Tenant, may from
time to time sublet the Premises or any part thereof for such term or terms
(which may extend beyond the Term) and at such rent and such other terms as
Landlord in its sole discretion may deem advisable, with the right to make
alterations and repairs to the Premises-Upon each such subletting, (i) Tenant
shall be immediately liable for payment to Landlord of, in addition to
indebtedness other than Rent and Additional Charges due hereunder, the cost of
such subletting and such alterations and repairs incurred by Landlord and the
amount, if any, by which the Rent and Additional Charges for the period of such
subletting (to the extent such period does not exceed the Term) exceeds the
amount to be paid as Rent and Additional Charges for the Premises for such
period, or (H) at the option of Landlord, rents received from such subletting
shall be applied, first, to payment of any indebtedness other than Rent and
Additional Charges due hem-under from Tenant to Landlord, second, to the payment
of any costs of such subletting and of such alterations and repairs; third, to
payment of Rent and Additional Charges due and unpaid hereunder, and the
residue, if any, shall be held by Landlord and applied in payment of future Rent
and Additional Charges as the same become due hereunder. If Tenant has been
credited with any rent to be received by such subletting under clause (i) and
such rent shall not be promptly paid to Landlord by the subtenant(s), or if such
rentals received from such subletting under clause (ii) during any month are
less than those to be paid during that month by Tenant hereunder, Tenant shall
pay any such deficiency to Landlord. Such deficiency shall be calculated and
paid monthly. For all purposes set forth in this Section 16.2(d), Landlord is
hereby irrevocably appointed attorney-in-fact for Tenant, with power of
substitution. No taking possession of the Premises by Landlord, as
attorney-in-fact for Tenant, shall be construed as an election on its part to
terminate this Lease unless a written notice of such intention is given to
Tenant. Notwithstanding any such subletting without termination, Landlord may at
any time thereafter elect to terminate this Lease for such previous breach; and
(e) The right to have a receiver appointed for Tenant, upon
application by Landlord, to take possession of the Premises and to apply any
rental collected from the Premises and to exercise all other rights and remedies
granted to Landlord as attorney-in-fact for Tenant pursuant to Section 16.2(d)
hereof.
16.3 If Tenant shall default in the performance of its obligations under
this Lease, Landlord, at any time thereafter and without notice, may remedy such
default for Tenant's account and at Tenant's expense, without thereby waiving
any other rights or remedies of Landlord with respect to such default.
16.4 If Landlord fails to perform its obligations under this Lease
within fifteen (15) days after notice by Tenant to Landlord specifying the
nature of the obligations Landlord has failed to perform, Landlord shall be in
default hereunder. If the nature of Landlord's obligations is such that more
than fifteen (15) days are required for performance, then Landlord shall not be
in default if Landlord commences performance within such fifteen (15) day period
and thereafter diligently prosecutes the same to completion. In the event of a
default by Landlord hereunder, Tenant's remedies shall be an action for damages
and/or an injunction. Tenant shall have the right to terminate this lease if
Landlord's failure to perform is a result of Landlord choosing not to diligently
pursue a cure to the stated default in good faith.
17. INDEMNITY, INSURANCE AND SUBROGATION
17.1 (a) Tenant agrees to indemnify Landlord against and save
Landlord harmless from any and all loss, cost, liability damage and expense
including, without limitation, penalties, fines and reasonable counsel fees and
disbursements, incurred in connection with or arising from (i) any default or
breach by Tenant in the observance or performance of any of the
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terms, covenants or conditions of this Lease; or (ii) any negligence or willful
misconduct of Tenant or of its contractors, agents, servants, employees,
invitees or licensees of Tenant in, on or about the Premises, or all or any part
of the Real Property, either prior to during, or after the expiration of the
Term and in connection with this Lease. Tenant's obligations under this Section
17. l(a) shall survive the expiration or other termination of this Lease.
(b) Landlord agrees to indemnify Tenant against and save Tenant
harmless from any and all loss, cost, liability, damage, and expense, including
without limitation penalties, fines and reasonable counsel fees and
disbursements, incurred in connection with or arising from (i) any default or
breach by Landlord in the observance of the terms, covenants, or conditions of
this Lease; or (ii) any negligence or willful misconduct of Landlord, or its
contractors, agents, servants, employees, invitees, or licensees in, on or about
the Premises, or all or any part of the Real Property, either prior to, daring,
or after the expiration of the Term and in connection with this Lease. Landlords
obligations under this Section 17.l(b) shall survive the expiration or other
termination of this Lease.
17.2 Tenant agrees to carry and keep in force during the Term hereof, at
Tenant's sole cost and expense, the following types of insurance, in the amounts
and in the form provided for:
(a) PUBLIC LIABILITY AND PROPERTY DAMAGE. Bodily and personal
injury liability insurance with limits of not less than One Million Five Hundred
Thousand Dollars ($1,500,000) per occurrence, insuring against any and all
liability for injuries to or death of persons occurring in, on or about the
Premises or arising out of the maintenance, use or occupancy thereof (including,
for purposes of "personal injury," coverage against false arrest, detention or
imprisonment, malicious prosecution, libel, slander and wrongful entry or
eviction) and property damage liability insurance with a limit of not less than
One Million Five Hundred Thousand Dollars ($1,500,000) per accident or
occurrence. All such public liability and property damage insurance shall
specifically insure the performance by Tenant of its indemnity obligations under
Section 17.1 hereof with respect to liability for injury to or death of persons
and for damage to property, if available at commercially reasonable rates.
(b) WORKERS' COMPENSATION AND EMPLOYERS' LIABILITY. Workers'
compensation and employers' liability insurance covering employees for
California Workers' Compensation benefits, including employers' liability with
limits of at least Five Hundred Thousand Dollars ($500,000) for each accident).
(c) TENANT PROPERTY. Insurance covering all improvements made by
Tenant to the Premises, and any and all fixtures of Tenant from time to time in,
on or about the Premises, providing protection against all perils included
within a standard fire and extended coverage insurance policy ("all risk form"),
together with insurance against sprinkler damage, vandalism and malicious
mischief. Such insurance shall be in an amount not less than 90% of the full
replacement cost of the property insured without deduction for depreciation.
(d) POLICY FORM. All policies of insurance provided for herein
shall be issued by insurance companies with a general policyholders' rating of
not less than A and a financial rating of XIII as rated in the most current
available "Best's Insurance Reports," and qualified to do business in the State
of California. Except for workers' compensation and employers' liability, all
such policies shall be issued in the names of Landlord, Tenant and such other
persons or firms as Landlord specifies from time to time and shall be for the
mutual and joint benefit and protection of Landlord, Tenant and others
hereinabove mentioned. Executed copies of all such policies of insurance or
certificates thereof shall be delivered to Landlord prior to delivery of
possession of the Premises to Tenant, and thereafter within thirty (30) days
prior to the expiration of the term of each such policy. All public liability
and property damage policies shall contain a provision that Landlord, although
named as an insured, shall nevertheless be entitled to recovery under said
policies for any loss occasioned to it, its agents and employees by reason of
the negligence of Tenant. As often as any such policy shall expire or terminate,
renewal or additional policies shall be procured and maintained by the Tenant in
like manner and to like extent. All such policies of insurance shall provide
that the company writing said policy will give Landlord thirty (30) days' notice
in writing in advance of any cancellation or lapse or the effective date of any
reduction in the amounts of insurance. All public liability, property damage and
other casualty policies shall be written as primary policies, not contributing
with and not in excess of coverage which Landlord may carry.
17.3 Landlord shall not be responsible for or liable to Tenant for any
loss or damage that may be occasioned by or through the acts or omissions of
persons occupying adjoining premises or any other part of the Building or the
Complex, or for any loss or damage resulting to Tenant or its property from
burst, stopped or leaking water, gas, sewer or steam pipes or for any damage or
loss of property within the Premises from any causes whatsoever, including
theft; provided, however, that nothing set forth herein shall be deemed to
relieve Landlord of its indemnity obligations under Section 17.1(b).
17.4 Notwithstanding anything to the contrary Contained herein, to the
extent permitted by their respective policies of insurance and to the extent of
insurance proceeds received with respect to the loss, Landlord and Tenant each
hereby waive any right of recovery against the other party and against any other
party maintaining a policy of insurance with respect to the Building or any
portion thereof or the contents of any of the same for any loss or damage
sustained by such other party with respect to the building, or the Premises or
any portion of any thereof or the contents of the same or any operation therein,
whether or not such loss is caused by the fault or negligence of such other
party. If any policy of insurance relating to the Premises carried by Tenant
does not permit the foregoing waiver or if the coverage under any such policy
would be invalidated as a result of such waiver, Tenant shall, if possible,
obtain from the insurer under such policy a waiver of an rights of subrogation
the
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insurer might have against Landlord or any other party maintaining a policy of
insurance covering he same loss, in connection with any claim, loss or damage
covered by such policy.
18. ENTRY BY LANDLORD
18.1 Landlord reserves and shall at all times have the right to enter
the Premises at all reasonable times upon prior notice to Tenant (except in
cases of emergency or in the provision of services under this Lease, in which ca
no prior notice need be given) to inspect the same, to supply any service to be
provided by Landlord to Tenant hereunder, to show the Premises to prospective
purchasers, mortgagees or tenants, to post notices of nonresponsibility, and to
alter, improve or repair the Premises and any portion of the Building, without
abatement of Rent or Additional Charges, and may for that purpose erect, use and
maintain scaffolding, pipes, conduits and other necessary structures in and
through the Premises where reasonably required by the character of the work to
be performed, provided that the entrance to the Premises shall not be blocked
thereby, and further provided that the business of Tenant shall not be
interfered with unreasonably. Tenant hereby waives any claim for damages for any
injury or inconvenience to or interfere with Tenant's business, any loss of
occupancy or quiet enjoyment of the Premises or any other loss occasioned
thereby. For each of the aforesaid purposes, Landlord shall at all times have
and retain a key with which to unlock all of the doors in, upon and about the
Premises, excluding Tenant's vaults and safes, or special security areas
(designated in advance), and Landlord shall have the right to use any and all
means that Landlord may deem necessary or proper to open said doors in an
emergency, in order to obtain entry to any portion of the Premises, and any
entry to the Premises or portions thereof obtained by Landlord by any of said
means, or otherwise, shall not under any circumstances be construed or deemed to
be a forcible or unlawful entry into, or a detainer of, the Premises, or an
eviction, actual or constructive, of Tenant from the Premises or any portion
thereof.
19. NOTICES
19.1 Except as otherwise expressly provided in this Lease, any bills,
statements, notices, demands, requests or other communications given or required
to be given under this Lease shall be effective only if rendered or given in
writing, sent by registered or certified mail or delivered personally, (a) to
Tenant (i) at Tenants address set forth in the Basic Lease Information, if sent
prior to Tenant's taking possession of the Premises, or (ii) at the Building if
sent subsequent to Tenant's taking possession of the Premises, or (iii) at any
place where Tenant or any agent or employee of Tenant may be found if sent
subsequent to Tenant's vacating, deserting, abandoning or surrendering the
Premises, or (b) to Landlord at Landlord's address set forth in the Basic Lease
Information, or (c) to such other address as either Landlord or Tenant may
designate as its new address for such purpose by notice given to the other in
accordance with the provisions of this Section 19.1. Any such bill, statement,
notice, demand, request or other communication shall be deemed to have been
rendered or given three (3) days after the date when it shall have been mailed
as provided in this Section 19.1 if sent by registered or certified mail, or
upon the date personal delivery is made. If Tenant is notified of the identity
and address of Landlord's mortgagee or ground or underlying lessor, Tenant shall
give to such mortgagee or ground or underlying lessor notice of any default by
Landlord under the terms of this Lease in writing sent by registered or
certified mail, and such mortgagee or ground or underlying lessor shall be given
a reasonable opportunity to cure such default prior to Tenant exercising any
remedy available to it.
20. NO WAIVER
20.1 No failure by Landlord to insist upon the strict performance of any
obligation of Tenant under this Lease or to exercise any right, power or remedy
consequent upon a breach thereof no acceptance of full or partial Rent or
Additional Charges during the continuance of any such breach, and no acceptance
of the keys to or possession of the Premises prior to the termination of the
Term by any employee of Landlord shall constitute a waiver of any such breach or
of such term, covenant or condition or operate as a surrender of this Lease. No
payment by Tenant or receipt by Landlord of a lesser amount than the aggregate
of all Rent and Additional Charges then due under this Lease shall be deemed to
be other than on account of the first items of such Rent and Additional Charges
then accruing or becoming due, unless Landlord elects otherwise; and no
endorsement or statement on any check and no letter accompanying any check or
other payment of Rent or Additional Charges in any such lesser amount and no
acceptance of any such check or other such payment by Landlord shall constitute
an accord and satisfaction, and Landlord may accept such check or payment
without prejudice to Landlords right to recover the balance of such Rent or
Additional Charges or to pursue any other legal remedy.
20.2 Neither this Lease nor any term or provision hereof may be changed,
waived, discharged or terminated orally, and no breach thereof shall be waived,
altered or modified, except by a written instrument signed by the party against
which the enforcement of the change, waiver, discharge or termination is sought
No waiver of any breach shall affect or alter this Lease, but each and every
term, covenant and condition of this Lease shall continue in full force and
effect with respect to any other then existing or subsequent breach thereof.
21. ESTOPPEL CERTIFICATES
21.1 Tenant, at any time and from. time to time upon not less than ten
(10) days' prior written notice from Landlord, will execute acknowledge and
deliver to Landlord and, at Landlord's request, to any prospective purchaser,
ground or
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underlying lessor or mortgagee of any part of the Real Property, a certificate
of Tenant stating (a) that Tenant has accepted the Premises (or, if Tenant has
not done so, that Tenant has not accepted the Premises and specifying the
reasons therefor), (b) the Commencement and Expiration Dates of this Lease, (c)
that this Lease is unmodified and in full force and effect (or, if there have
been modifications, that same is in full force and effect as modified and
stating the modifications), (d) whether or not there are then existing any
defenses against the enforcement of any of the obligations of Tenant under this
Lease (and, if so, specifying same), (e) whether or not there are then existing
any defaults by Landlord in the performance of its obligations under this Lease
(and, i f so, specifying same), (f) the dates, if any, to which the Rent and
Additional Charges and other charges under this Lease have been paid, and (g)
any other information that may reasonably be required by any of such persons. It
is intended that any such certificate of Tenant delivered pursuant to this
Section 21.1 may be relied upon by Landlord and any prospective purchaser,
ground or underlying lessor or mortgagee of any part of the Real Property.
22. RULES AND REGULATIONS
22.1 Tenant shall faithfully observe and comply with the rules and
regulations attached to this Lease as Exhibit D and all modifications thereof
and additions thereto from time to time put into effect by Landlord. Landlord
shall not be responsible for the nonperformance by any other tenant or occupant
of the Building or the Complex of any of said rules and regulations. In the
event of an express and direct conflict between the terms, covenants, agreements
and conditions of this Lease and the terms, covenants, agreements and conditions
of such rules and regulations, as modified and amended from time to time by
Landlord, this Lease shall control.
23. TAX ON TENANT'S PERSONAL PROPERTY
23.1 At least ten (10) days prior to delinquency Tenant shall pay all
taxes levied or assessed upon Tenant's equipment, furniture, fixtures and other
personal property located in or about the Premises. If the assessed value of
Landlord's property is increased by the inclusion therein of a value placed upon
Tenant's equipment, furniture, fixtures or other personal property, Tenant shall
pay to Landlord, upon written demand, the taxes so levied against Landlord, or
the proportion thereof resulting from said increase in assessment. The portion
of real estate taxes payable by Tenant pursuant to this Section 23.1 and by
other tenants of the Building pursuant to similar provisions in their leases
shall be excluded from Real Estate Taxes for purposes of computing the
Additional Charges to be paid pursuant to Article 4 hereof.
24. PARKING AND STORAGE
24.1 Landlord shall make available for use by Tenant during the Term the
number of parking spaces in the locations set forth in the Basic Lease
Information. Throughout the Term, and upon no less than forty five (45) days
written notice (except in the calendar year 1997 whereby only twenty (20) days
written notice shall be required), Tenant shall notify Landlord on a calendar
year basis the number of such spaces Tenant intends to use and Tenant shall pay
to Landlord monthly rent in respect of such parking spaces as set forth in
Exhibit E. Tenant shall not be assigned specific spaces in the Garage or the
Federal Street Parking Area. The rules and regulations promulgated by Landlord
shall govern access to the Garage, parking procedures and other matters related
to the use and operation of the Garage and the Federal Street Parking Area.
Landlord may in its sole discretion implement such rules, regulations, parking
configurations, equipment or methods, and procedures as it deems advisable,
including a valet parking system.
24.2 Landlord shall make available for use by Tenant during the Term a
storage space (the "Storage Space") on the Terrace having the rentable area set
forth in the Basic Lease Information. Tenant shall pay monthly rent to Landlord
in respect of the Storage Space as set forth in Exhibit F. The Storage Space
shall be in a location on the Terrace determined by landlord and landlord shall
have the right, upon thirty (30) days' written notice to Tenant, to relocate the
Storage Space to another location on the Terrace. In the event that Landlord
relocates the Storage Space, (i) Landlord shall arrange for moving the contents
thereof and pay all moving costs; and (ii) all applicable terms and covenants
and conditions hereof shall remain in full force and effect and thereupon be
deemed applicable to such new Storage Space. Should Tenant refuse to permit
landlord to relocate the Storage Space at the end of said thirty (30) day
period, Landlord shall have the right to terminate Tenant's right to use the
Storage Space and obligation to pay rent thereon by notice given to Tenant in
writing within ten (10) days following the end of said thirty (30) day period,
which termination shall be effective sixty (60) days after the date of the
original notice of relocation by the Landlord.
25. AUTHORITY
25.1 Each of the persons executing this Lease on behalf of Tenant and
Landlord does hereby covenant and wan-ant that the party for which they are
executing this Lease is a duly authorized and existing entity, that the party
for which they are executing this Lease has and is qualified to do business in
California, that the party for which they are executing this Lease has full
right and authority to enter into this Lease, and that any such person signing
on behalf of such party is authorized to do so. Upon either party's request, the
other party shall provide the requesting party with evidence reasonably
satisfactory to such party confirming the foregoing covenants and warranties.
12.
13
26. MISCELLANEOUS
26.1 The words "Landlord" and "Tenant" as used herein shall include the
plural as well as the singular. The words used in the neuter gender include the
masculine and feminine. If there is more than one Tenant, the obligations under
this Lease imposed on Tenant shall be joint and several. The captions preceding
the articles of this Lease have been inserted solely as a matter of convenience
and such captions in no way define or limit the scope or intent of any provision
of this Lease.
26.2 The terms, covenants and conditions contained in this Lease shall
bind and inure to the benefit of Landlord and Tenant and except as otherwise
provided herein, their respective personal representatives and successors and
assigns; provided, however upon the sale, assignment or transfer by the Landlord
named herein (or by any subsequent landlord) of its interest in the Building as
owner or lessee, including any transfer by operation of law, the Landlord (or
subsequent landlord) shall be relieved from all subsequent obligations or
liabilities under this Lease, and all obligations subsequent to such sale,
assignment or transfer (but not any obligations or liabilities that have accrued
prior to the date of such sale, assignment or transfer) shall be binding upon
the grantee, assignee or other transferee of such interest, and any such
grantee, assignee or transferee, by accepting such interest, shall be deemed to
have assumed such subsequent obligations and liabilities. A lease of the entire
Building to a person other than for occupancy thereof shall be deemed a transfer
within the meaning of this Section 26.2.
26.3 If any provision of this Lease or the application thereof to any
person or circumstance shall, to any extent, be invalid or unenforceable, the
remainder of this Lease, or the application of such provision to persons or
circumstances other than those as to which it is invalid or unenforceable, shall
not be affected thereby, and each provision of this Lease shall be valid and be
enforced to the full extent permitted by law.
26.4 This Lease shall be construed and enforced in accordance with the
lam of the State of California.
26.5 Submission of this instrument for examination or signature by
Tenant does not constitute a reservation of or an option for lease, and it is
not effective as a lease or otherwise until execution and delivery by both
Landlord and Tenant.
26.6 This instrument, including the Exhibits hereto, which are made a
part of this Lease, contains the entire agreement between the parties and all
prior negotiations and agreements are superceded by this Lease. Neither Landlord
nor Landlord's gents have made any representations or warranties with respect to
the Premises, the Building, the Real Property or this Lease except as expressly
set forth herein, and no rights, easements, or licenses are or shall be acquired
by Tenant by implication or otherwise unless expressly set forth herein.
26.7 The review, approval, inspection or examination by Landlord of any
item to be reviewed, approved, inspected or examined by Landlord under the terms
of this Lease or the exhibits attached hereto shall not constitute the
assumption of any responsibility by Landlord for either the accuracy or
sufficiency of any such item or the quality or suitability of such item for its
intended use. Any such review, approval inspection or examination by Landlord is
for the sole purpose of protecting Landlord's interests in the Building and the
Complex and under this Lease, and no third parties, including, without
limitation, Tenant or any person or entity claiming through or under Tenant, or
the contractors, agents, servants, employees, visitors or licensees of Tenant or
any such person or entity, shall have any rights hereunder.
26.8 In the event of any action or proceeding brought by either party
against the other under this Lease, the prevailing party shall be entitled to
recover all costs and expenses, including its reasonable attorneys' fees, in
such action or proceeding n such amount as the court may adjudge reasonable. The
prevailing party shall be determined by the court based upon an assessment of
which party's major arguments made or positions taken in the proceedings could
fairly be said to have prevailed over the other party's major arguments or
positions on major disputed issues in the court's or arbitrator's decision. If
Landlord is named as a defendant in any suit brought against Tenant in
connection with or in any way arising out of this Lease or Tenant's use or
occupancy of the Premises, Tenant shall pay Landlord's costs and expenses,
including, without limitation, reasonable attorneys' fees, incurred in such suit
or action.
26.9 Upon the expiration or sooner termination of the Term, Tenant will
quietly and peacefully surrender to Landlord the Premises in the condition in
which they are required to be kept as provided in Article 8 hereof ordinary wear
and tear and the provisions of Article 12 excepted.
26.10 Upon Tenant paying the Rent and Additional Charges and performing
all of Tenants obligations under this Lease, Tenant may peacefully and quietly
enjoy the Premises during the Term as against all persons or entities lawfully
claiming by or through Landlord, subject, however, to the provisions of this
Lease and to any mortgages or ground or underlying leases referred to in Article
10 hereof.
26.11 Tenant covenants and agrees that no diminution of light, air or
view by any structure that may hereafter be erected (whether or not by Landlord)
shall entitle Tenant to any reduction of Rent or Additional Charges under this
Lease, result in any liability of Landlord to Tenant, or in any other way affect
this Lease or Tenant's obligations hereunder.
13.
14
26.12 Any holding over by Tenant after the expiration or other
termination of the Term with the written consent of Landlord shall be construed
to be a tenancy from month-to-month at one hundred fifty percent (150%) of the
Rent in effect on the date of such expiration or termination and shall otherwise
be on the terms and conditions herein specified so far as applicable. Any
holding over without Landlord's consent shall constitute a default by Tenant and
entitle Landlord to reenter the Premises as provided in Article 16 hereof.
26.13 Time is of the essence with respect to all provisions of this
Lease in which a definite time for performance is specified.
26.14 Tenant warrants that it has had no dealings with any red broker or
agents in connection with the negotiation of this Lease other than the party
identified as "Broker" in the Basic Lease Information and it knows of no other
real estate broker or agent who is entitled to a commission in connection with
this Lease . Tenant agrees to indemnify Landlord and hold Landlord harmless from
and against any and all claims, demands losses, liabilities, lawsuits,
judgments, costs and expenses (including reasonable attorneys' fees) with
respect to any leasing commission or equivalent compensation alleged to be owing
on account of Tenant's dealings with any real estate broker or agent other than
Broker.
26.15 The following Exhibits and Addenda are attached hereto and
incorporated herein by this reference (a) Exhibits A, B, C, D, E and F.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease the day
and year first above written.
SOUTH BEACH DEVELOPMENT COMPANY, The Virtual Mall, Inc., a California
a California general Partnership corporation, dba Greet Street
By: By:
-------------------------------- --------------------------------
Its: Its:
-------------------------------- --------------------------------
By:
--------------------------------
Its:
--------------------------------
"Landlord" "Tenant"
14.
15
EXHIBIT B
MONTHLY PREMISES RENT
The following monthly rent shall be paid by Tenant in respect of the Premises
during each month of the Term
MONTH MONTHLY RENT
----- ------------
1-12 $ 17,106.00
13-24 $ 18,175.13
15.
16
EXHIBIT C
TENANT IMPROVEMENTS
Landlord shall install improvements in the Premises in accordance with
the plans and specifications and pricing notes (the "Plans") attached hereto.
The cost of such improvements shall be paid by Landlord. In addition to the
Tenant Improvements set forth on the Plans, Tenant shall have the right to
require additional electrical improvements to the Premises to be installed by
Landlord. The initial $5,000 of the cost of such additional electrical
improvements shall be paid by Landlord and any additional costs shall be paid by
Tenant. In addition, Tenant shall pay for any other improvements it may require
at the Premises.
16.
17
EXHIBIT D
RULES AND REGULATIONS
1. No sign, placard, picture, advertisement, name or notice shall be
inscribed, displayed or printed or affixed on or to any part of the outside or
inside of the Building without the written consent of Landlord, and Landlord
shall have the right to remove any such sign, placard, picture, advertisement
name or notice without notice to and at the expense of Tenant.
All approved signs or lettering on doors shall be printed, painted,
affixed or inscribed at the expense Of Tenant by a person approved of by
Landlord.
Tenant shall not place anything or allow anything to be placed near the
glass or any window, door, partition or wall which may appear unsightly from
outside the Premises. Landlord shall furnish and install a Building standard
window covering at all exterior windows which shall not be modified by Tenant
without the prior written consent of Landlord.
2. The sidewalks, halls, passages, exits, entrances, elevators and
stairways shall not be obstructed by any of the tenants or used by them for any
purpose other than for ingress and egress from their respective premises.
3. Tenant shall not alter any lock or install any new or additional
locks to any bolts on any doors or windows of the Premises.
4. The toilet rooms, urinals, wash bowls and other apparatus shall not
be used for any purpose other than that for which they were constructed and no
foreign substance of any kind whatsoever shall be thrown therein. The expense of
any breakage, stoppage or damage resulting from the violation of this rule shall
be borne by the Tenant who, or whose employees or invitees, shall have caused
it.
5. Tenant shall not overload the floor of the Premises or in any way
deface the Premises or any part thereof.
6. No furniture, freight or equipment of any kind shall be brought into
the Building without the prior notice to Landlord and all moving of the same
into or out of the Building shall be done at such time and in such manner as
Landlord shall designate. Landlord shall have the right to prescribe the weight,
size and position of all safes and other heavy equipment brought into the
Building and also the times and manner of moving the same in and out of the
Building. Safes or other heavy objects shall, if considered necessary by
Landlord, stand on supports of such thickness as is necessary to properly
distribute the weight Landlord will not be responsible for loss of or damage to
any such safe or property from any cause and all damage done to the Building by
moving or maintaining any such safe or other property shall be repaired at the
expense of Tenant. Tenant -shall pay for any damage to halls, doors, walls,
paint, elevator cabs or other items caused by Tenant's movers.
7. Tenant shall not use, keep or permit to be used or kept any foul or
noxious gas or substance in the Premises, or permit or suffer the Premises to be
occupied or used in a manner offensive or objectionable to the Landlord or other
occupants of the Building by reason of noise, odors and/or vibrations, or
interfere in any way with other tenants or those having business therein, nor
shall any animals or birds be brought in or kept in or about the Premises or the
Building.
8. No cooking shall be done or permitted by the Tenant on the Premises,
nor shall the Premises be used for the storage of merchandise, for washing
clothes, for lodging, or for any improper, objectionable or immoral purposes.
9. Tenant shall not use or keep in the Premises or the Building any
kerosene, gasoline or inflammable or combustible fluid or material, or use any
method of heating or air conditioning other than that supplied by Landlord, if
any.
10. Landlord will direct electricians as to where and how telephone and
telegraph wires are to be introduced. No boring or cutting for wires will be
allowed without the prior consent of the Landlord. The location of telephones,
call boxes and other office equipment affixed to the Premises shall be subject
to the prior approval of Landlord.
11. On Saturdays, Sundays and legal holidays, and on other days between
the hours of 6 00 p.m. and 8 00 am. k following day, access to the Building; or
to the halls, corridors, elevators or stairways in the Building, or to the
Premises may be refused unless the person seeking access is known to the person
or employee of the Building in charge and has a pass r is properly identified.
The Landlord shall in no ca be liable for damages for any error with regard to
the admission to or exclusion from the Building of any person. In case of
invasion, mob, riot, public excitement, or other commotion, the Landlord
reserves the right to prevent access to the Building during the continuance of
the same by closing of the doors or otherwise, for the safety of the tenants and
protection of property in the Building and the Building.
17.
18
12. Landlord reserves the right to exclude or expel from the Building
any person who, in the judgment of Landlord, is intoxicated or under the
influence of liquor or drugs, or who shall in any manner do any act in violation
of any of the rules and 5"tions of the Building.
13. No vending machines or machines of any description shall be
installed, maintained or operated upon the Premises without the written consent
of the Landlord.
14. Tenant shall not disturb, solicit, or canvas any occupant of the
Building and shall cooperate to prevent same.
15. Without the prior written consent of Landlord, Tenant shall not use
the name of the Building in connection with or in promoting or advertising the
business of Tenant except as Tenants address.
16. Landlord shall have the right to control and operate the public
portions of the Building and the public facilities, as well as facilities
furnished for the common use of the tenants, in such manner as it deems best for
the benefit of he tenants generally .
17. All entrance doors in the Premises shall be left locked when the
Premises are not in use, and all doors opening to public corridors shall be kept
closed except for normal ingress and egress from the Premises.
18.
19
EXHIBIT E
MONTHLY PARKING RENT
The following monthly rent shall be paid by Tenant in respect of the
parking spaces described in the Basic Lease Information during each month of the
term, which Tenant determines to use in accordance with Section 24.1:
MONTH MONTHLY PARKING RENT
----- --------------------
1-12 $150.00 per space per month
thereafter Fair Market Value
19.
20
EXHIBIT F
MONTHLY STORAGE RENT
The following monthly rent shall be paid by Tenant in respect of the
Storage Space described in the Basic Lease Information during each month of the
Term:
MONTH MONTHLY RENT
----- ------------
N/A
20.
21
ARTICLES DESCRIPTION PAGE NUMBER
- -------- ----------- -----------
1. Premises.............................................................................2
2. Term.................................................................................2
3. Rent, Additional Charges and Security Deposit........................................2
6. Use and Compliance with Law..........................................................4
7. Alterations and Additions............................................................4
8. Repairs..............................................................................5
9. Liens................................................................................5
10. Subordination and Attornment.........................................................5
11. Inability to Perform.................................................................5
12. Damage or Destruction................................................................6
13. Eminent Domain.......................................................................6
14. Assignment and Subletting............................................................7
15. Services and Utilities...............................................................7
16. Default and Remedies.................................................................8
17. Indemnity, Insurance and Subrogation.................................................9
18. Entry by Landlord...................................................................11
19. Notices.............................................................................11
20. No Waiver...........................................................................11
21. Estoppel Certificates...............................................................11
22. Rules and Regulations...............................................................12
23. Tax on Tenant's Personal Property...................................................12
24. Parking and Storage.................................................................12
25. Authority...........................................................................12
26. Miscellaneous.......................................................................13
Exhibit A - Floorplans
Exhibit B - Monthly Premises Rent
Exhibit C - Tenant Improvements
Exhibit D - Rules and Regulations
Exhibit E - Monthly Parking Rent
Exhibit F - Monthly Storage Rent
i.
22
An extra section break has been inserted above this paragraph. Do not delete
this section break if you plan to add text after the Table of
Contents/Authorities. Deleting this break will cause Table of
Contents/Authorities headers and footers to appear on any pages following the
Table of Contents/Authorities.
1.
23
First Amendment To Standard Office Building Lease
This First Amendment To Standard Office Building Lease ("First Amendment") is
dated, for reference purposes only, as of September 15, 1998, and shall
constitute part of that certain Lease dated September 1, 1997 ("Lease") between
Rosenberg SOMA Investments I, LLC ("Landlord"), successor in interest to SOUTH
BEACH DEVELOPMENT COMPANY, and The Virtual Mall, Inc., a California corporation,
dba Greet Street ("Tenant").
Whereas, Tenant has entered into a lease from Landlord of those certain Premises
in the office building ("Building") commonly known as 501 Second Street in the
City and County of San Francisco pursuant to that certain Standard Office
Building Lease dates as of September 1, 1997, (herein collectively called the
"Lease");
Whereas Tenant and Landlord now desire to amend the Lease to expand the premises
and to adjust the rent and to provide for the installation of improvements;
Now, therefore, for valuable consideration, the receipt of which is hereby
acknowledged, and consideration of the mutual covenants herein contained,
Landlord and Tenant hereby agree as follows:
1. Expansion Space. Effective November 1, 1997, and running conterminous with
the Lease through October 17, 1999, Tenant shall lease the 5,773 net rentable
square feet shown in Exhibit A hereto. The space shall be taken in "as-is"
condition, subject to paragraph 4 below. The total square footage under Lease to
Tenant, including the Expansion Space, becomes 14,326 net rentable square feet.
2. Base Rent. The Base Rent shall be as listed below per month throughout the
term for the Expansion Space only.
Period 11-1-98 through 10-17-99 $15,875.75
If Landlord, for any reason whatsoever, is unable to deliver possession of the
Expansion Space premises by November 1, 1998, Base Rent and Additional Charges
shall be abated until the Expansion Space premises are available for occupancy.
No delay in delivery of possession shall operate to extend the Expiration Date
beyond 10-17-1999. If Landlord is not able to deliver possession of the
expansion space on or before December 31, 1998, Tenant may cancel this First
Amendment with no further obligation whatsoever.
3. Base Year. The base year for operating expense pass through purposes shall be
the calendar year 1999, adjusted if necessary to reflect 95% occupancy, for the
Expansion Space only. The additional net rentable square footage will add an
additional 3.06% to Tenant's Percentage Share.
4. Tenant Improvements. Landlord shall provide Tenant with $7,500 in Tenant
Improvement Allowance, which Tenant may use at its sole discretion to pay for
the installation of its improvements.
24
5. Parking. Landlord shall provide Tenant with four(4) additional covered
parking spaces for the full term of this Lease, as extended, at $165.00 per
month.
6. Security Deposit and Advance Rent. Tenant shall increase its security deposit
("Security Deposit") by an additional $15,875.75 concurrent with its execution
of this First Amendment as well as paying advance rent for the month of
November, 1998 in the same amount of $15,875.75, also with the execution of this
First Amendment.
7. Early Termination. Landlord shall grant to Tenant a right to terminate the
Lease early, including the entire 14,326 net rentable square foot Premises, upon
satisfaction of all of the below listed conditions:
o Tenant shall be required to give no less than six(6) months prior
written notice of its desire to terminate early.
o Tenant must move to one of the following buildings: 625 Second Street,
410 Townsend Street, or 670 Second Street ("Replacement Buildings").
o Tenant must rent at least 15,000 net rentable square feet in one of the
above listed Replacement Buildings at a mutually agreeable fair market
rental rate.
8. No Other Provisions Changed. Except for the changes made herein, no changes
or amendments to the Standard Office Building Lease have been made as of the
date of this First Amendment, and all provisions in the Lease, except as
amended, supplemented, or supplanted herein, are hereby ratified and affirmed
and shall remain in full force and effect.
This First Amendment shall be for all purposes considered part of the Lease.
LANDLORD
ROSENBERG SOMA INVESTMENTS, INC., a California limited liability company
By:
--------------------------------------
Michael Karasik, Manager
Date:
------------------------------------
TENANT
The Virtual Mall, Inc., a California Corporation, dba Greet Street
By:
--------------------------------------
Date:
------------------------------------