California-San Francisco-855 Battery Street Lease - CBS Corp. and CBS MarketWatch.com LLC
LEASE
THIS INDENTURE OF LEASE (hereinafter called "Lease"), made this 27th day of
August, 1997, by and between CBS CORPORATION (successor by corporate name
change to Westinghouse Electric Corporation), a Pennsylvania corporation having
its principal address at 51 West 52nd Street, New York, New York 10019
(hereinafter called "Lessor"), and CBS Marketwatch.com , LLC a Delaware Limited
Liability Company, having an address at 825 Battery Street, San Francisco,
California 94111 (hereinafter called "Lessee").
W I T N E S S E T H:
1. INDENTURE
Lessor hereby leases to Lessee and Lessee hereby hires from Lessor,
approximately 4,373 rentable square feet (the "Original Premises") and 7,240
rentable square feet (the "Additional Premises") (the "Original Premises" and
"Additional Premises" being jointly referred to as the "Premises), each as shown
on Exhibit A, attached hereto and incorporated herein by reference thereto, it
being understood that such square footage has been determined by measurements
determined by R.M.A. Architects, in the building located at 855 Battery Street,
San Francisco, California (hereinafter called "Building"), which is situated on
that certain parcel of land (hereinafter called "Office Building Area") thereto,
together with the right to use in common with the other occupants of the
Building, their invitees, customers and employees, the common areas of the
Building, as designated from time to time by Lessor, including the stairway,
elevators, if any, sidewalks, halls, toilet and public sanitary facilities,
lobby and all other general common facilities contained in the building.
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2. TERM
The Original Premises shall be leased for a term of five (5) years
(hereinafter called "Term") beginning as of April 1, 1998 and ending on March
31, 2003. The Additional Premises shall be leased for a term commencing on
September 1, 1998 and ending on March 31, 2003. If Lessor, for any reason
whatsoever, shall be unable to deliver possession of either the Original
Premises or the Additional Premises on the above mentioned commencement date for
that part of the Premises, the Lease shall not be void or voidable, nor shall
Lessor be liable to Lessee for any loss or damage resulting therefrom, but, in
that event, the Lease with regard to the applicable area shall commence upon the
date that Lessor shall tender to Lessee possession of the Premises and terminate
midnight of March 31, 2003.
3. BASE RENT
(a) Lessee shall pay to Lessor during the Term a base rent
(hereinafter called "Base Rent") for the Original Premises in the amount of
Seventeen and 50/100 Dollars ($17.50) per square foot per year for a total
annual rent of Seventy-six thousand, Five hundred Twenty-seven and 50/100
Dollars ($76,527.50). Lessee shall pay Base Rent for the Additional Premises in
the amount of Thirty-Three and 00/100 Dollars ($33.00) per square foot per year
for a total annual rent of Two hundred thirty-eight thousand Nine hundred twenty
Dollars ($238,920). All such Base Rent shall be payable in advance on or before
the first day of each month of the Term in an equal number of monthly
installments (hereinafter called the "Monthly Base Rent") of $6377.29 for the
Original Premises and $19,910.00 for the Additional Premises. If the Term for
either of the Original Premises or the Additional Premises commences on a date
other than the first day of a month, Lessee shall pay to Lessor a pro rata
portion of the Monthly Base Rent for
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such area, prorated on the basis of a thirty (30) day month, with respect to
that portion of the calendar month within the Term.
(b) Upon each anniversary of the commencement of the Lease for each
of the Original Premises and the Additional Premises, the Base Rent for such
area shall increase by four percent (4%) over the Base Rent payable for the
preceding year.
4. USE AND OCCUPANCY
Lessee shall use and occupy the premises for general office use and
reasonable other uses incidental thereto and for no other purpose.
5. COVENANT TO PAY RENT
Lessee shall pay Base Rent and any additional rent (hereinafter called
"Additional Rent") as hereinafter provided (Base Rent and Additional Rent
hereinafter collectively called "Rent") to Lessor without demand and without
counterclaim, deduction or setoff. Lessee shall pay Rent at the address set
forth hereinbelow, or as may otherwise be directed by written notice from Lessor
to Lessee.
6. COMPLIANCE WITH THE LAW
(a) Lessee shall not (i) use the Premises, (ii) permit anything to be
done in or upon the Premises, or (iii) permit the Premises to be in a condition
which shall, in any manner, conflict with any law, statute, ordinance, rule,
regulation or restriction now in force or which may hereafter be in force of any
federal, state or local government. Lessee shall comply, at
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Lessee's sole cost and expense, with all such laws, statutes, ordinances, rules,
regulations and restrictions and with the requirements of any board of fire
insurance underwriters, or any similar body now or hereafter constituted,
relating to or affecting the condition, use or occupancy of the Premises;
provided, however, that Lessee shall not hereby be under any obligation to make
any structural change in or alternation to the leased Premises, unless caused or
arising as a result of Lessee's acts or omissions or the acts or omissions of
Lessee's agents, servants, visitors or licensees, and provided further, that
Lessee shall not hereby be under any obligation to make any change to the
electrical, plumbing or HVAC systems. Lessee shall not (i) cause, maintain or
permit any public nuisance in or upon the Premises, (ii) commit or suffer to
committed any waste in or upon the Premises or (iii) engage in any activity
which shall be hazardous, on account of fire or other peril to the Premises.
(b) Lessor represents that on the commencement of the Lease, to the
best of its knowledge, the Premises will comply with all applicable laws,
ordinances, rules and regulations of governmental authorities and Lessor
warrants that during the Term it will comply with all such applicable laws,
ordinances, rules or regulations regarding the Premises and the Building except
to the extent Tenant or other tenants must comply.
7. CARE AND REPAIR OF PREMISES
(a) Lessor shall maintain and repair the common areas, the roof, the
exterior walls and glass and the structural elements of the Building, including
existing electrical, H.VA.C. or approved items in paragraph 8, ALTERATIONS,
ADDITIONS OR IMPROVEMENTS provided, however, all damage or injury to the
Building, or to the fixtures, equipment and appurtenances located therein,
whether requiring structure or nonstructural repairs, caused by or resulting
from Lessee's use or occupancy of the Premises shall be repaired
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at Lessee's sole cost and expense. Lessor and Lessor's agents, employees and
contractors shall have the right to enter the Premises at such times as Lessor
deems necessary to inspect and examine the same and to make such repairs,
additions alterations and improvements as lessor desires to make to the
Building. Lessor shall have the right to take any and all needed materials into
and through the Premises that may be required to perform such repairs,
additions, alterations and improvements without being liable to lessee, unless
done in a manner which constitutes gross negligence or willful misconduct.
Lessor shall use reasonable efforts not to interfere with the lessee's use or
occupancy of premises. Rent shall not abate during any period when Lessor shall
be performing any work in or about the Building necessitated by Lessee's
negligence, or otherwise. Lessee waives any claim or cause of action against
Lessor for damages by reason of loss or interruption to Lessee's business and
profits due to such work.
(b) Lessee shall, at Lessee's sole cost and expense, keep the
Premises in good repair and condition and replace any and all broken glass in
the Premises with glass of the same quality and size, unless such repairs are
occasioned by the Lessor's gross negligence or willful misconduct. Lessee shall
be responsible for complying with all federal, state or local laws relating to
the Premises and its use thereof, including but not limited to the Americans
with Disabilities Act ("ADA") and the Occupational Health and Safety Act
("OSHA"). Lessee shall indemnify and save Lessor harmless from and against any
loss, cost or expense in connection with damage to the Building caused by or
attributable to Lessee's failure to keep the Premises in good repair and
condition or due to Lessee's use or occupancy of the same, normal wear and tear
excepted.
(c) All alterations, additions and improvements to the Premises made
by Lessor or Lessee, whether temporary or permanent in character, shall be
Lessor's property, without compensation or payment to Lessee, and shall remain
upon the Premises at the
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termination of the Lease, unless Lessor requires the removal of such
alterations, additions or improvements by written notice to Lessee within
fifteen (15) days after the termination of the Lease. Notwithstanding the
foregoing, so long as the lease remains in effect and Lessee is not in default
hereunder, Lessee may remove all moveable personal property, business and
fixtures, furniture and equipment which is not attached to the Premises,
provided Lessee repairs any damage caused by such removal.
(d) Not later than the final day of the Term, Lessee shall, at
Lessee's sole cost and expense, remove all property which Lessee shall have the
right to remove, pursuant to paragraph (c) above, from the Premises and repair
all injury to the Building in connection with Lessee's removal of the same.
Lessee shall surrender the Premises in as good condition as the Premises were in
at the commencement of the Term, reasonable wear and tear and damage by fire,
the elements, casualty or other cause not due to the act or omission of Lessee
or Lessee's visitors or licensees excepted. All property of Lessee remaining on
the Premises after the final day of the Term shall be conclusively deemed
abandoned and may be removed by Lessor; and Lessee shall reimburse Lessor for
the cost of such removal. Lessor may store property so removed at Lessee's sole
cost, expense and risk, for a period of up to thirty (30) days.
7A. CONDITION OF THE PREMISES AND TENANT IMPROVEMENTS
(a) Lessee acknowledges that it has examined the Premises and except
as set forth in this paragraph 7A, it accepts the Premises in their as-is
condition.
(b) Lessor shall install building standard carpeting and erect
demising walls in the Original Premises and make such other improvements to the
Original Premises necessary to bring such area in compliance with ADA and other
relevant statutes and ordinances.
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Notwithstanding the foregoing, in no event will Landlord be required to pay more
than $100,168.00 for such tenant improvements to the Original Premises. The cost
of any additional work in excess of $100,168.00 shall be Tenant's
responsibility.
(c) Landlord shall reimburse Tenant up to $10.00 per rentable square
foot for tenant improvements. Such reimbursement shall be made upon presentation
of verifiable proof of payment for direct services or material for such
improvements.
(d) Notwithstanding anything to the contrary herein, any tenant
improvements performed by or on behalf of Tenant shall be subject to all of the
provisions of Section 8 of this Lease.
8. ALTERATIONS, ADDITIONS OR IMPROVEMENTS
Lessee shall have the right to make alterations, additions and
improvements to the Premises; provided, however, any alterations, additions and
improvements to the Premises shall be made subject to the following conditions;
(a) Lessor shall have the right to approve, in writing, all
alterations, additions and improvements to the Premises, which approval shall
not be unreasonably withheld or delayed.
(b) No alterations, additions or improvements shall be made which
shall impair the structural soundness or diminish the value of the Premises, the
Building or the Office Building Area.
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(c) No alterations, additions or improvements shall be undertaken
until Lessee shall have procured and paid for all required municipal and other
government permits and authorizations.
(d) All work done in connection with any alteration, addition or
improvement shall be done in a good and workmanlike manner and in compliance
with the applicable building and zoning laws, and all other laws, ordinances,
orders, rules, regulations and requirements of all federal, state and municipal
governments, and in accordance with the underwriters or any other body now or
hereafter constituted exercising similar functions; and Lessee shall procure a
certificate of occupancy, and any other certificates, if the same shall be
required by law.
(e) At all times when any alterations, additions and improvements
shall be in progress, there shall be maintained, at Lessee's or Lessee's
contractors' sole cost and expense, (i) worker's compensation insurance in
accordance with the laws of the State of California and covering all persons
employed in connection with the alteration, addition or improvement, and (ii)
general liability insurance for the mutual benefit of Lessee and Lessor,
expressly covering the hazards attributable to the alteration, addition or
improvement.
(f) Lessee shall keep the Premises free from any liens arising out
of work performed, materials furnished or obligations incurred by Lessee and
shall indemnify, save harmless and defend Lessor from and against any lien or
encumbrance arising out of any work performed or materials furnished by or at
the direction of Lessee. In the event that Lessee shall not, within ten (10)
days following the filing of any such lien, cause the same to be released of
record by payment or posting of a proper bond, Lessor shall have, in addition to
all other remedies provided herein any by law, the right, but no obligation, to
cause the same to be released by such means as Lessor shall deem proper,
including payment of the claim giving rise
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to such lien. Lessee shall pay all such sums paid by Lessor, and all reasonable
expenses incurred by Lessor in connection therewith, to Lessor on demand, with
interest at the rate of ten percent (10%) per annum. Lessor shall have the right
at all times to post and keep posted on the Premises any notices permitted or
required by law, or which Lessor shall deem proper, for the protection of Lessor
and the Premises, and any other party having an interest therein, from
mechanics' and materialmen's liens. Lessee shall give Lessor at least ten (10)
business days' prior written notice of the expected date of commencement of any
work relating to alterations, additions and improvements to the Premises.
9. ACTIVITIES INCREASING FIRE INSURANCE RATE
Lessee shall not do or permit any act or thing to be done in or to the
Premises which shall be contrary to law or which shall invalidate or be in
conflict with the fire and extended coverage policies of insurance at any time
carried by or for the benefit of Lessor with respect to the Premises or the
Building or which shall or might subject Lessor to any liability or
responsibility to any person or for property damage, nor shall Lessee keep
anything in the Premises except as now or hereafter permitted by the board of
fire insurance underwriters or other authority having jurisdiction over the
Building, and then only in such manner and such quantity so as not to increase
the rate for fire insurance applicable to the Building, nor use the Premises in
a wrongful manner which shall increase the insurance rate for the Building or
any property located therein over that in effect prior to the commencement of
the Term. Lessee shall pay all costs, expenses, fines, penalties and damages
which may be imposed upon Lessor by reason of Lessee's failure to comply with
the provisions of this paragraph; and if by reason of such failure, fire
insurance premiums shall be higher than such premiums would otherwise be, Lessee
shall reimburse Lessor, as Additional Rent, for that portion of all fire
insurance premiums thereafter paid by Lessor which shall have been charged
because of such failure by Lessee.
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10. ASSIGNMENT AND SUBLETTING
(a) Except as expressly permitted in this paragraph, Lessee shall
not, without the prior written consent of Lessor (which consent shall not be
unreasonably withheld, conditioned or unduly delayed), assign or hypothecate
this Lease or any interest herein or sublet the Premises or permit the use of
the Premises by any party other than Lessee. Any of the foregoing acts without
such consent shall be void and shall, at the option of Lessor, terminate this
Lease. This Lease shall not be assignable as to the interest of Lessee by
operation of law without the written consent of Lessor, which consent shall not
be unreasonably withheld by Lessor. Notwithstanding anything to the contrary
herein, in no event may Lessee sublease less than all of the Premises.
(b) If at any time or from time to time during the term of this
Lease, Lessee desires to sublet all of the Premises, Lessee shall give notice to
Lessor setting forth the terms of the proposed subletting. Lessor shall have the
option, exercisable by notice given to Lessee within ninety (90) days after
Lessee's notice is given, either to sublet from Lessee such space at the rental
and other terms set forth in Lessee's notice or to terminate this Lease. If
Lessor does not exercise such option, Lessee shall be free to sublet such space
to any third party, subject to the following conditions:
1. The sublease shall be on the same term set forth in the
notice given to Lessor;
2. No sublease shall be made without the prior written consent
of Lessor, which consent Lessor agrees will not unreasonably
be
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withheld as to a subletting of the entire Premises.
Notwithstanding the foregoing, consent shall be given within
(30) days.
3. No sublease shall be valid and no sublessee shall take
possession of the Premises subleased until an executed
counterpart of such sublease has been delivered to Lessor;
4. No sublessee shall have a right further to sublet; and
5. Fifty percent (50%) of any sums or other economic
consideration received by Lessee as a result of such
subletting (except rental or) other payments received which
are attributable to the amortization of the cost of
leasehold improvements, other than building standard tenant
improvements, or equal to such as are provided by Lessor to
Lessee as of the commencement date of this lease, made to
the sublet portion of the Premises by Lessee and brokerage
commissions paid by Lessee) whether denominated rentals
under the sublease or otherwise, which exceed, in the
aggregate, the total sums which Lessee is obligated to pay
Lessor under this Lease (prorated to reflect obligations
allocable to that portion of the Premises subject to such
sublease) shall be payable to Lessor without reducing any
other obligation of Lessee hereunder.
(c) Notwithstanding the provisions of subparagraphs (a) and (b)
above, Lessee may assign this Lease or sublet the Premises or any portion
thereof, without Lessor's consent and without extending any option to Lessor, to
any corporation which controls, is controlled by or is
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under common control with Lessee, or to any corporation resulting from the merge
or consolidation with Lessee, or to any person or entity which acquire all the
assets of Lessee as a going concern of the business that is being conducted on
the Premises, provided that said assignee assumes, in full, the obligations of
Lessee under this Lease. And further, that said assignee's net worth is equal to
or greater than Lessee's at the time of such assignment.
(d) Regardless of Lessor's consent, no subletting or assignment
(including but not limited to any subleasing or assignment pursuant to Section
10(c) above) shall release Lessee or Lessee's obligation or alter the primary
liability of Lessee to pay the rental and to perform all other obligations to be
performed by Lessee hereunder. The acceptance of rental by Lessor from any other
person shall not be deemed to be a waiver by Lessor of any provision hereof.
Consent to one assignment or subletting shall not be deemed consent to any
subsequent assignment or subletting. In the event of default by any assignee of
Lessee or any successor of Lessee in the performance of any of the terms hereof,
Lessor may proceed directly against Lessee without the necessity of exhausting
remedies against such assignee or successor.
(e) In the event Lessee shall assign or sublet the Premises or
request the consent of Lessor to any assignment or subletting or if Lessee shall
request the consent of Lessor for any act that Lessee proposed to do, then
Lessee shall pay Lessor's reasonable attorneys' fees incurred in connection
therewith.
11. COMPLIANCE WITH RULES AND REGULATIONS
Lessee shall observe and comply with the Rules and Regulations
hereinafter set forth in Exhibit C, attached hereto and incorporated herein by
reference thereto, and with such further reasonable Rules and Regulations as
Lessor may prescribe, on written notice to Lessee,
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for the safety, care and cleanliness of the Building and the comfort, quiet and
convenience of the other occupants of the Building. However, nothing in the
Lease shall be construed to impose upon Lessor any duty or obligation to enforce
the Rules and Regulations or the terms, covenants and condition in any other
lease as against any other tenant; and Lessor shall not be liable to Lessee for
violations of the same by any other tenant or the servants, employees, agents,
visitors or licensees of such tenant. Lessor shall, however, to the extent
reasonably possible, enforce the rules in a reasonable and non-discriminating
manner.
Lessee shall not place a load upon any floor of the Premises exceeding
the floor load per square foot area which such floor is designed to carry and
which is allowed by law. Lessor reserves the right to prescribe the weight and
position of all safes, business machines and mechanical equipment. Such
installation shall be placed and maintained by Lessee at Lessee's sole cost and
expense, in a setting sufficient, in Lessor's sole judgment, to absorb and
prevent vibration, noise and annoyance.
12. CASUALTY
In the event the Building is damaged by fire or any other casualty to
such an extent that the cost of restoring the same, as reasonably estimated by
Lessor, shall be equal to or exceed twenty-five percent (25%) of the replacement
value of the Building, exclusive of foundations, as calculated immediately prior
to the occurrence of the damage, Lessor shall have the right, which shall be
exercised by written notice to Lessee no later than the sixtieth (60th) day
following such damage, to terminate the Lease. In the event the cost of
restoring the Building shall be equal to or exceed fifty percent (50%) of such
replacement value and if the Premises shall not be reasonably usable for the
purpose for which the Premises are leased hereunder, Lessee shall have the
right, which shall be exercised by written notice to Lessor no later than the
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sixtieth (60th) day following such damage, to terminate the Lease. In the event
Lessor or Lessee elect to terminate the Lease pursuant to this paragraph, the
Lease shall terminate on the thirtieth (30th) day after said notice and Lessee
shall surrender possession of the Premises on such date. Rent shall be
apportioned as of the date of termination or, if earlier, the date on which the
Premises become unusable by Lessee by virtue of such damage; provided, however,
Lessor shall have the right to retain any and all Rent paid for periods after
the termination date to the extent that Lessee shall be liable for damage to the
Building.
If the cost of restoration, as estimated by Lessor, shall be less than
twenty-five percent (25%) of the replacement value of the Building, exclusive of
foundations, or if, despite the replacement costs, Lessor shall not elect to
terminate the Lease, Lessor shall restore the Building with reasonable
promptness, subject to delays (i) beyond Lessor's control and (ii) in making
insurance adjustments between Lessor and Lessor's insurance carrier, it being
understood that Lessor need not expend more than the insurance proceeds it
receives for such restoration. Notwithstanding the foregoing to the contrary, in
the event Lessor elects to restore the Building, Lessee shall have no right to
terminate the Lease. Lessor shall not be required to repair fixtures,
improvements, alterations and additions owned by made by or paid for by Lessee.
In the event the Premises shall be damaged by fire or any other
casualty, Lessee may abate Rent to the extent the Premises are untenantable;
provided, however, Lessee may not abate rent if damage to the Building shall be
attributable, in whole or in part, to the act or omission of Lessee or Lessee's
agents, servants, employees, visitors or licensees.
All insurance proceeds payable under insurance policies carried by
Lessor in connection with the Building shall be the sole property of Lessor, and
Lessee shall have no right, claim or interest in any proceeds payable under such
insurance policies.
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13. WAIVER OF SUBROGATION
Lessee shall obtain for the benefit of Lessor and express waiver of
subrogation from every insurance carrier issuing insurance to Lessee in
connection with Lessee's use and occupancy of the Premises. Lessee shall
indemnify and save lessor harmless from and against any loss, cost or expense
which Lessor shall suffer by reason of Lessee's failure to obtain said waiver of
subrogation.
Lessor shall obtain for the benefit of Lessee and express waiver of
subrogation from every insurance carrier issuing casualty insurance to Lessor.
Lessor shall indemnify and save lessee harmless from and against any loss, cost
or expense which Lessee shall suffer by reason of Lessor's failure to obtain
said waiver of subrogation.
14. LESSOR'S NONLIABILITY
Lessor shall not be liable, and Lessee waives all liability, for any
cause of action arising from interior damage which may be sustained by goods,
wares, merchandise or property of Lessee or Lessee's employees, invitees,
customers or any other person in or about the Premises caused by or resulting
from fire, steam, electricity, gas water or rain which may leak or flow from or
into any part of the Premises, or from the breakage, leakage, obstruction or
other defects of the pipes, sprinklers, wires, appliances, plumbing, air
conditioning and lighting fixtures of the same, whether said damage or injury
results from conditions arising upon the Premises or upon other portions of the
Building or from other sources, provided that the same shall not be attributable
to the active negligence or willful misconduct of Lessor. Lessor shall not be
liable for any damage or injury arising from any act or omission of any other
tenant of the Building.
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Notwithstanding anything to the contrary herein, in no event shall any
shareholder, partner, officer or director of Lessor have any personal liability
arising from or relating to this Lease nor shall Lessor have any liability
hereunder greater than the value of its interest in the Building. Should Lessor
sell its interest in the Building, it shall have no liability hereunder accruing
after the closing of such sale.
15. INDEMNIFICATION OF LESSOR
(a) Lessee shall indemnify and save Lessor harmless from and against
(i) any and all liabilities, penalties, losses, damages, costs, expenses,
demands, causes of action, claims and judgments arising from or growing out of
any injury to any person, or any damage to any property, as a result of any
accident or other occurrence during the Term occasioned by the negligence or
willful misconduct of Lessee or Lessee's officers, employees, agents, servants,
subtenants, licensees, contractors, invitees and permittees, or arising from or
growing out of the use, maintenance occupancy or operation of the Premises and
(ii) all legal costs and charges, including reasonable attorneys' fees, incurred
in and about any such matters, in the defense of any action arising out of the
same or in discharging the Premises, or any part thereof, from any and all
liens, charge or judgments which may accrue or be place thereon by reason of any
act or omission of Lessee.
(b) Lessor shall indemnify and save Lessee harmless from and against
(i) any and all liabilities, penalties, losses, damages, costs, expenses,
demands, causes of action, claims and judgments arising from or growing out of
any injury to any person, or any damage to any property, as a result of any
accident or other occurrence during the Term occasioned by the negligence or
willful misconduct of Lessor or Lessor's officers, employees, agents, servants,
subtenants and contractors, or as a result of any default by lessor in
observance or performance of any terms, covenants or conditions of the lease on
the lessor's part to be observed or
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performed and (ii) all legal costs and charges, including reasonable attorneys'
fees, incurred in and about any such matters .
16. EMINENT DOMAIN
If the Building shall be taken under the power of eminent domain, or
sold by Lessor under the threat of the exercise of the power of eminent domain,
the Lease shall automatically terminate as of the date the condemning authority
takes title.
If twenty-five percent (25%) or more of the total square footage of
the Building or the Premises shall be taken under the power of eminent domain,
Lessor shall have the right to terminate the Lease upon thirty (30) days' prior
written notice to Lessee.
If fifty percent (50%) or more of the total square footage of the
Premises shall be taken under the power of eminent domain, Lessee shall have the
right to terminate the Lease upon thirty (30) days' prior written notice to
Lessor.
Lessor and Lessee shall be required to exercise their respective
rights to terminate the Lease within thirty (30) days of the taking which shall
give rise to such right.
In the event the Lease is not terminated due to any taking under the
power of eminent domain, the Lease shall remain in full force and effect,
provided the Base Rent shall be reduced in the proportion that the rentable area
taken within the Premises bears to the total rentable area of the Premises. All
awards for the taking of any part of the Premises or payment made under the
threat of the exercise of the power of eminent domain, including but not limited
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to any award for Lessee's leasehold interest, shall be the property of Lessor,
whether made as Compensation for the taking of the fee or severance damages.
Lessee shall have the right to claim and recover from the condemning
authority, but not from the Lessor nor in diminution of any award due Lessor,
such compensation as may be separately awarded or recoverable by Lessee in
Lessee's own right on account of the taking of any or all of Lessee's leasehold
improvements, furniture, fixtures and equipment; and for or on account of any
cost or loss to which the Lessee be put in removing Lessee's merchandise,
furniture, fixtures and equipment, and in locating suitable substitute premises,
or in the event of a partial taking, in modifying the remaining portion of the
Premises for its usage.
17. EVENTS OF DEFAULT
The occurrence of the following events shall constitute a default on
the part of Lessee with or without notice from Lessor:
(a) The filing of a voluntary petition in bankruptcy by Lessee, a
voluntary petition for an arrangement, a voluntary or involuntary petition for
reorganization or the filing of an involuntary petition by Lessee's creditors,
and in which case when such involuntary petition remains undischarged for a
period of thirty (30) days;
(b) The attachment, execution thereon or other judicial seizure of
all or substantially all of Lessee's assets or this leasehold and the same
remaining undismissed or undischarged for a period of thirty (30) days after the
levy thereof;
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(c) The abandonment, vacation or desertion of the Premises for more
than ten (10) days;
(d) The failure to pay Rent within five (5) business days after
notice from Lessor to Lessee that such payment shall be due; and
(e) The failure to observe or perform any of the covenants,
conditions or provisions of the Lease, other that the covenant to pay Rent,
where such failure shall continue for a period of then (10) days after notice
thereof from Lessor to Lessee; provided, however, if such default cannot be
cured solely by payment of money and more than ten (10) days are reasonably
required for a cure, Lessee shall not be in default if Lessee shall commence
such cure within said ten (10) day period and thereafter diligently prosecute
such cure to completion.
18. LESSOR'S REMEDIES
In the event of any default by Lessee, Lessor may at any time
thereafter, with or without limiting Lessor in the exercise of any right or
remedy at law or in equity which Lessor may have by reason of such default:
(a) Maintain the Lease in full force and effect and recover the Rent
and other monetary charges as such amounts become due, without terminating
Lessee's right to possession, irrespective of whether Lessee shall have
abandoned the Premises. In the event Lessor elects not to terminate the Lease,
Lessor shall have the right to attempt to relet the Premises at such Rent, upon
such conditions and for such a term, and to do all acts necessary to maintain or
preserve the Premises, as Lessor deems reasonable and necessary without being
deemed elected to terminate the Lease, including removal of all persons and
property from the Premises. In the event any
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such reletting occurs, the Lease shall terminate automatically upon the new
tenant taking possession of the Premises. In the event of such termination,
Lessor shall be entitled to recover from Lessee all damages incurred by Lessor
by reason of Lessee's as default specified in the following paragraph.
(b) Terminate Lessee's right to possession by any lawful means, in
which case the Lease shall terminate and Lessee shall immediately surrender
possession of the Premises to Lessor. In such event, Lessor shall be entitled to
recover from Lessee all damages incurred by Lessor by reason of Lessee's default
including, without limitation, the following: (i) the worth at the time of the
award of any unpaid Rent which had been earned at the time of such termination;
plus (ii) the worth at the time of award of the amount by which the unpaid Rent
which would have been earned after termination until the time of award exceeds
the amount of such rental loss that Lessee proves could have been reasonably
avoided; plus (iii) the worth at the time of award of the amount by which the
unpaid Rent for the balance of the Term after the time of award exceeds the
amount of such rental loss that Lessee proves could be reasonably avoided; plus
(iv) any other amount necessary to compensate Lessor for all the detriment
proximately caused by Lessee's failure to perform Lessee's obligations under the
Lease or which in the ordinary course of things would be likely to result
therefrom. Upon any reentry, Lessor shall have the right to make any reasonable
repairs, alterations or modifications to the Premises which Lessor deems
reasonable and necessary. As used in this paragraph, the "worth at the time of
award" shall be computed by discounting such amount at the discount rate of the
Federal Reserve Bank of San Francisco at the time of award plus one percent
(1%).
In addition to the foregoing remedies, Lessor shall have, so long as
the Lease is not terminated, the right to remedy any default of Lessee and to
cause a receiver to be appointed to administer the Premises and new or existing
subleases.
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Each right and remedy of Lessor provided for in the Lease shall be
cumulative and shall be in addition to every right or remedy provided for in the
Lease or now or hereafter existing at law or in equity or by statute or
otherwise. The exercise of any one or more of the rights and remedies provided
for in the Lease, or now or hereafter existing at law or in equity or by statute
or otherwise, shall not preclude the simultaneous or later exercise by Lessor of
any or all other rights or remedies provided for in the Lease or now or
hereafter existing at law or in equity by statute or otherwise.
The failure of Lessor to insist upon the strict performance of any
term in the Lease or to exercise any right or remedy contingent upon a default
thereof, and the acceptance of full or partial payment of Rent during the
continuance of any such default, shall not constitute a waiver of such default
or of any such terms. Efforts by Lessor to mitigate the damages caused by
Lessee's breach of the Lease shall not be construed to be a waiver of Lessor's
right to recover damages under the Lease.
18A. LESSOR'S DEFAULT
Lessor's failure to perform or observe any of its Lease obligations
after a period of thirty (30) business days or the additional time, if any, that
is reasonably necessary to promptly and diligently cure the failure after
receiving notice from Lessee shall be a Lessor Default. The notice shall be
given in reasonable detail, the nature and extent of the failure and identigy
the Lease provision(s) containing the obligation(s). After Lessee receives
notice of a mortgagee or other lien holder's name and address, Lessee shall, if
so directed by Lessor or such mortgagee or other lien holder, provide notice as
otherwise provided in this Section to such party of any Lessor Default. Lessee
shall have the remedies provided at law for such Lessor Default, subject to the
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limitations and requirements of this Lease, provided that in no event will
Lessee have the right to self help at Lessor's expense nor will it have the
right to withhold or offset any rent, additional rent or any other payment due
under this Lease.
19. WAIVER OF COVENANTS OR CONDITIONS
No waiver of any default of breach of any covenant of either party
hereunder shall be implied from any omission by either party to take action on
account of such default if such default persists or is repeated and an express
waiver shall be operative only for the time and to the extent therein stated.
Waivers of any covenant, term or condition contained herein by either party
shall not be construed as a waiver of any subsequent breach of the same
covenant, term or condition. The consent or approval by either party to or for
any act by either party requiring further consent or approval shall not be
deemed to waive or render unnecessary consent or approval of such party to or
for any subsequent similar acts.
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20. SUBORDINATION OF LEASE
The Lease shall be subject and subordinate to (i) any underlying
leases and to any first mortgage or trust deed which may now or hereafter affect
such leases or the Office Building area and (ii) any renewals, modifications,
consolidations and replacements of said underlying leases and said first
mortgage or trust deed. No instrument or act on the part of Lessee shall be
necessary to effectuate such subordination; provided, however, Lessee shall
execute and deliver such further instruments confirming such subordination of
the Lease as may be desired by any mortgagee or beneficiary under a trust deed
and by any lessor under an underlying lease. Lessee hereby appoints as Lessee's
attorney-in-fact to execute and deliver any such instrument for Lessee. If any
underlying lease to which the Lease shall be subject terminates, Lessee shall,
on timely request, attorn to the owner of the reversion. As long as Lessee is
not in default in the payment of rental or any other covenants or conditions of
this Lease, Lease shall not be terminated and the possession of Lessee shall not
be disturbed by the holder such mortgage or by any proceedings on the debt which
any such mortgage secures, or by any person, firm or corporation whose rights
were acquired as a result of such proceedings or by virtue of a right or power
contained in any such mortgage.
21. RIGHT TO CURE LESSEE'S BREACH
If Lessee breaches any term, covenant or condition of the Lease,
Lessor may, with or without notice to Lessee cure such breach at the expense of
Lessee; and the reasonable expenses, including attorneys' fees, incurred by
Lessor in so doing shall be deemed Additional Rent payable to Lessor on demand.
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22. NOTICES
Any notice by either party to the other shall be in writing and shall
be deemed to have been duly given if delivered personally or sent by United
States mail, duly registered or certified, with postage fully prepaid thereon as
follows:
To Lessor: CBS Corporation
51 West 52nd Street
New York, New York 10019
Attention: Real Estate Department
With a copy to: KPIX
855 Battery Street
San Francisco, California 94111
Attention: Controller
To Lessee: CBS Marketwatch.com, LLC
825 Battery Street
San Francisco, CA 94111
Attention: Chief Financial Officer
With a copy to: CBS Corporation
51 West 52nd Street
New York, New York 10019
Attention: Real Estate Department
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and to: Data Broadcasting Corp.
1900 South Norfolk Street
San Mateo, California 94443
Attention: Vice President
Notice shall be effective forty-eight (48) hours after mailing.
23. RIGHT TO INSPECT AND REPAIR
Lessor shall have the right to enter the Premises at any reasonable
time, emergencies excepted, for the purpose of inspecting or making repairs,
replacements or additions in, to, on or about the Building, as Lessor deems
necessary or desirable. Lessor may, during the progress of any work in the
Premises related to such repairs, replacements or additions, take all necessary
materials and equipment into the Premises without the same constituting an
eviction, nor shall Lessee be entitled to any abatement of Rent, except for
substantial interference with Lessee's business, while such work is in progress
or to any damages by reason of loss or interruption of business or otherwise.
Lessor shall have the right to enter the Premises at reasonable hours for the
purpose of showing the same to same to prospective purchasers or mortgagees of
the Building and, during the last six (6) months of the Term, for the purpose of
showing the same to prospective tenants. Lessee shall have no claim or cause of
action against Lessor by reason of Lessor's entry hereunder.
24. INTERRUPTION OF SERVICES OR USE
Interruption or curtailment of any service maintained in the Building
caused by strikes, mechanical difficulties, government preemption in connection
with a national
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emergency, conditions of supply and demand effected by any government emergency
or any causes beyond Lessor's control, whether similar or dissimilar to those
enumerated, shall not entitle Lessee to any claim against Lessor or to any
abatement in Rent and shall not constitute constructive or partial eviction.
25. NO OTHER REPRESENTATIONS
No representations or promises shall be binding on the parties hereto
except those representations and promises contained herein or in some future
writing signed by the party to be charged.
26. QUIET ENJOYMENT
Lessor covenants that so long as Lessee shall pay Rent and perform the
other terms, covenants and conditions of the Lease, Lessor shall have the
peaceful and quiet enjoyment of the Premises; provided, however, that nothing
herein shall be construed as requiring Lessor to enjoin, or attempt to enjoin,
any act or neglect of any other tenant of the Building unless such tenant is
claiming a right to possession of the leased Premises.
27. ESTOPPEL CERTIFICATE
Lessee shall, without charge, at any time and from time to time,
within ten (10) days after receipt of request therefore by Lessor, execute,
acknowledge and deliver to Lessor a written estoppel certificate certifying to
lessor any mortgages, assignee of a mortgagee or any purchaser of the Building,
or any other person designated by Lessor, as of the date of such estoppel
certificate, the following:
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(a) Whether or not Lessee is in possession of the Premises;
(b) Whether or not the Lease is unmodified and in full force and
effect (or if there has been a modification, that the Lease is in full force and
effect as modified and setting forth such modification);
(c) Whether or not there are then existing any setoffs or defenses
against the enforcement of any right hereunder (and, if so, specifying the same
in detail);
(d) The dates, if any, to which Rent has been paid in advance;
(e) That the Lessee has no knowledge of any then uncured defaults on
the part of Lessor under the Lease (or if Lessee had knowledge of any such
uncured defaults, specifying the same in detail);
(f) That Lessee has no knowledge of any event having occurred that
authorizes the termination of the Lease by Lessee (or if Lessee has such
knowledge, specifying the same in detail); and
(g) The address to which notices to Lessee should be sent.
Lessee's failure to deliver such statement within such time shall be
conclusive upon Lessee (i) that the Lease is in full force and effect without
modification except as may be represented by Lessor, (ii) that there are no
uncured defaults on the part of Lessor and (iii) that not more than one (1)
month's Rent has been paid in advance.
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28. HOLDOVER TENANCY
If Lessee holds possession of the Premises after the Term, Lessee
shall become a tenant at sufferance under the provisions hereof, but at a
Monthly Base Rent of two hundred percent (200%) of the Monthly Base Rent for the
last month of the Term, payable in advance on the first day of each month.
Nothing herein shall relieve Lessee of any liability for any damages incurred by
Lessor as a result of Lessee's holding over without Lessor's consent.
29. SERVICES TO BE PROVIDED BY LESSOR
(a) Provided Lessee shall not be in default under the Lease, Lessor
shall furnish the janitorial services set forth in Exhibit D, attached hereto
and incorporated herein by reference thereto, subject to the conditions set
forth therein. Except as set forth in Exhibit D, Lessee shall pay the cost of
all services required by Lessee. Lessor shall not be liable for the failure to
furnish any of such services when such failure shall be caused by conditions
beyond the control of Lessor, including, but not limited to, acts of God,
accidents, repairs and strikes; and such failure shall not constitute an
eviction, either constructive or partial. Lessor shall not be liable, under any
circumstance, for loss of, or injury to, property however occurring, through, in
connection with or incidental to the furnishing of or failure of the services
defined in Exhibit D or for any interruption to Lessee's business.
(b) In addition to the janitorial services set forth in Exhibit D,
upon execution hereof the parties shall enter into an ancillary agreement for
the provision by Landlord to Tenant of emergency generator and other ancillary
services, all on the terms and conditions set forth in Exhibit E.
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30. ELECTRICITY
(a) Lessor shall furnish Standard Electrical Service to the Premises.
Lessor shall not be liable in any way to Lessee for any failure or defect in the
supply or character of electric energy furnished to the Premises by reason of
any requirement, act or omission of the public utility serving the Building.
Lessor shall furnish and install all lighting tubes, lamps bulbs and ballasts
required in the Premises. Lessor shall not be liable to Lessee for interruption
in or curtailment of any utility service, nor shall any such interruption or
curtailment constitute constructive eviction or grounds for abatement of rent in
full or in part.
(b) Standard Electrical Service shall, unless otherwise provided by
agreement in writing between the parties, include electric current for use of
usual office machines and equipment from 8:00 a.m. to 6:00 p.m., Monday through
Friday, excluding holidays. Heating, ventilating and air conditioning will be
provided to the space for additional periods of time upon receipt of a request
therefore received at least two (2) hours prior to the time said service is
requested. Tenant shall pay the actual cost of such additional heating,
ventilating and air conditioning currently estimated to be approximately
thirty-five dollars ($35) per hour. All installations of electrical fixtures,
appliances and equipment within the Premises shall be subject to Lessor's prior
written approval, which Lessor shall not be unreasonably withhold.
31. ADDITIONAL RENT
Lessee shall pay, in addition to Base Rent, Additional Rent to cover
Lessee's proportionate share of the increased cost to Lessor for: (i) Operating
Expenses of the Building and the Office Building Area over the Base Operating
Expenses for such areas, (ii) Utility and
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<PAGE> 30
Energy Costs of the Building and the Office Building area over the Base Utility
and Energy Cost for such areas, and (iii) Real Estate Taxes of the Building and
the Office Building Area over the Base Real Estate Taxes for such areas.
(a) Operating Expenses Escalation
If the Operating Expenses for any Lease Year (including the initial
year), or proportionate part thereof, during the Term shall be greater than the
Base Operating Expense adjusted proportionately for periods less than a Lease
Year, Lessee shall pay to Lessor, as Additional Rent, Lessee's proportionate
share of all such excess over Base Operating Expenses. Operating Expenses shall
include, by way of illustration and not by way of limitation, personal property
taxes in connection with equipment and machinery used in the repair and
maintenance of the Building and the Office Building Area, management fees,
labor, including all wages and salaries, Social Security taxes, and other taxes
which may be levied against Lessor upon such wages and salaries, supplies,
repairs and maintenance, electricity for the common areas of the Building,
maintenance and service contacts, painting, wall and window washing, laundry and
towel service, tools and equipment (which are not required to be capitalized for
federal income tax purposes), fire and other insurance, trash removal, lawn
care, snow removal and all other items properly constituting direct operating
expenses according to generally accepted accounting principles, consistently
applied, but not including depreciation of the Building or equipment, interest,
income or excess profit taxes, cost of maintaining Lessor's corporate existence,
franchise taxes, any expenditures required to be capitalized for federal income
tax purposes or Office expenses, manager fees or salaries of Lessor's executive
officers. Base Operating Expenses shall be the Operating Expenses incurred by
Lessor for the period of January 1, 1998 through December 31, 1999 (hereinafter
referred to as the "Base Year").
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(b) Fuel, Utilities and Electric Cost Escalation
In the event the fuel, utility and electric expenses, including any
fuel surcharges or adjustments with respect thereto (collectively called
"Utility and Energy Costs"), incurred by Lessor for the Premises for any Lease
Year, or proportionate part thereof, during the Term shall be greater that the
Base Utility and Energy Costs incurred during the Base Year, adjusted
proportionately for periods less than a Lease Year, Lessee shall pay to Lessor,
as Addition Rent, Lessee's proportionate share of all such excess Utility and
Energy Costs.
(c) Real Estate Tax Escalation
If the Real Estate Taxes for the Building and the Office Building Area
for any Lease Year, or proportionate part thereof, during the Term shall be
greater than the Real Estate Taxes payable by Lessor during the Base Year,
adjusted proportionately for periods less than a Lease Year, Lessee shall pay to
Lessor as additional Rent Lessee's proportionate share of all such excess Real
Estate Taxes. "Real Estate Taxes" shall mean all property taxes and assessments
levied against or imposed upon the Building and the Office Building area. If due
to a future change in the method of taxation, any franchise, income or profit
tax shall be levied against Lessor in substitution for, in lieu of, or in
addition to any tax which would constitute a Real Estate Tax, such franchise,
income or profit tax shall be deemed to be a Real Estate Tax for the purposes
hereof.
(d) Lease Year
Lease Year shall mean the twelve (12) month period commencing on
January 1 and each twelve (12) month period thereafter. In the event any Lease
period is less
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than twelve (12) months, the Base Cost shall be adjusted to equal the proportion
that said period bears to the Lease Year and Lessee shall pay to Lessor, as
Additional Rent for such period, an amount equal to Lessee's proportionate share
of the excess Operating Expenses for said period over the adjusted Base Costs.
(e) Proportionate Share
Lessee's proportionate share of operating Expenses shall be Seven and
one tenth percent (07.1%), which share shall be adjusted from time to time by
Lessor to reflect the ratio of the square feet of the area rented to the Lessee
as compared to the total number of square feet of rentable area of the Building
measured from outside wall to outside wall. Lessor shall have the right to make
changes or revisions in the common areas of the Building so as to provide
addition leasing area.
(f) Payment
For each Lease Year of the Term, Lessee shall pay to Lessor in the
manner provided for herein, as Additional Rent, payable at the time of payment
of Monthly Base Rent, Lessee's share of Operating Expenses.
Prior to determination of the actual amount of Lessee's share of
Operating Expenses for any Lease Year, Lessee shall make monthly installment
payments toward such share on an estimated basis, based on Lessor's estimate of
Lessee's share for the Lease year. Lessee shall pay Lessor on the first day of
each month of each Lease Year one-twelfth (1/12th) of Lessor's estimate.
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After the end of each Lease Year during the Term, Lessor shall
determine the amount, if any, by which the Operating Expenses during the Lease
Year exceeded the Base Costs. Lessor shall provide to Lessee a statement of this
determination, including Lessee's share of Operating Expenses for the Lease
Year. Within thirty (30) days after the delivery of his statement for each Lease
Year, Lessee shall pay to Lessor any deficiency between the amount shown as
Lessee's share of Operating Expenses for the Lease Year and the estimated
payments made by Lessee toward such amount. In the event of excess estimated
payments, Lessee shall be credited with the excess toward subsequent estimated
payments.
Each expense statement provided by Lessor shall be conclusive and
binding upon Lessee unless within ninety (90) days after receipt of the expense
statement Lessee shall notify Lessor that Lessee disputes the correctness of the
expense statement, specifying the respect in which the expense statement is
claimed to be incorrect. Unless otherwise mutually agreed, any such dispute
shall be determined by arbitration in San Francisco, California, in accordance
with the rules then prevailing of the American Arbitration Association. Pending
determination of the dispute, Lessee shall pay any amount due from Lessee in
accordance with the expense statement, but such payment shall be without
prejudice to Lessee's position.
(g) Books and Records
Lessor shall maintain books of account which shall be opened to Lessee
and Lessee's authorized representatives, upon appointment with Lessor for a
reasonable time, so Lessee may determine that Operating Expenses have, in fact,
been paid or incurred.
(h) The obligating of Lessee hereunder to pay Additional Rent for the
final Lease Year of the Term shall survive the expiration of the Term.
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32. LESSEE'S INSURANCE REQUIREMENTS
Lessee shall, at all times during the Term and at Lessee's sole cost
and expense, procure and continue in force comprehensive liability insurance,
including, but without limitation, workmen's compensation insurance, bodily
injury liability insurance and property damage liability insurance in the
following amounts:
(a) One Million Dollars ($1,000,000.00) per occurrence;
(b) One Million Dollars ($1,000,000.00) per person; and
(c) Five Hundred Thousand Dollars ($500,000.00) property damage
naming Lessor as an additional insured in the liability contract against
liability, injury or death of any person in connection with the Building and the
Office Building Area and damage or destruction to any property thereon.
The foregoing insurance shall not limit the liability of Lessee. All
insurance required under the Lease shall be with companies of generally
recognized responsibilities and credit licensed to do business in California and
reasonably satisfactory to Lessor. Such insurance shall be written in forms
satisfactory to Lessor.
Prior to the time such insurance shall be first required to be carried
by lessee, and thereafter at least fifteen (15) days prior to the expiration of
such policies, lessee shall deliver to lessor either a duplicate original of the
aforesaid policy or a certificate evidencing such insurance, provided such
certificate contains an endorsement that such insurance may not be
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canceled except upon (30) days' written notice to Lessor, together with evidence
of payment for the policy.
Upon failure at any time on the part of Lessee to procure and deliver
to lessor the policy or certificate of Insurance, as hereinabove provided, at
least fifteen (15) days prior to the expiration of the prior insurance policy or
certificate, or to pay the premium therefore, Lessor shall have the right, as
often as such failure shall occur, to procure such insurance and to pay the
premium therefore; and Lessee shall pay to Lessor, upon demand, as Additional
Rent, any sums paid for such insurance by Lessor. Payment by Lessor of such
premiums or the carrying by lessor of any such policy shall not be deemed to
waive or release the default of Lessee with respect thereto. Lessee's failure to
provide and keep in force the aforementioned insurance shall be regarded as a
default under the Lease and shall entitle Lessor to exercise any or all of the
remedies as provided in the Lease in the event of default.
33. PERSONAL PROPERTY TAXES
Lessee agrees to pay all taxes imposed on the personal property and
fixtures of Lessee and hold Lessor harmless therefrom.
34. WAIVER OF TRIAL BY JURY
The parties waive trial by jury in any action or proceeding brought in
connection the Lease or the Premises.
35. LATE CHARGE
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Lessee hereby acknowledges that late payments by Lessee to Lessor of
Rent and other sums due under the Lease shall cause Lessor to incur expenses not
contemplated by the Lease, the exact amount of which shall be extremely
difficult to ascertain. Such costs include, but are not limited to, processing
and accounting charges and late charges which may be imposed on Lessor by the
terms of any mortgage or any trust deed in connection with the Office Building
Area. Accordingly, if any installment of Rent or any other sum due under the
lease from lessee shall not be received by Lessor or Lessor's designee within
five (5) business days after such amount shall be due, such amount shall accrue
interest at the rate of ten percent (10%) per annum, which Lessee shall pay to
Lessor, as Additional Rent, upon demand.
36. BROADCASTING INTERFERENCE
Notwithstanding anything to the contrary in the Lease, Lessee warrants
that Lessee shall not do or permit any thing to be done in, on, or to the
Premises which shall interfere in any manner whatsoever with any radio or
television broadcasting, however occurring or accomplished, which Lessor
initiates, receives or relays from, in or to the Building.
If, after verbal Notice from the Building Manager, or his/her
designated representative, the interference does not cease immediately, this
will be deemed a violation of this Warranty.
In the event of a violation of the warranty in this Section 36, Lessor
shall have the right, to be exercised concurrently with, or in addition to all
other rights and remedies under the Lease and as provided by law, to immediately
terminate the Lease. If Lessor terminates the Lease due to a breach of this
warranty, Lessee shall immediately cease Lessee's use of the Premises and
surrender the same to Lessor.
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37. PARAGRAPH HEADINGS
The paragraph headings in the Lease and the position of the provisions
herein are intended for convenience only and shall not be taken into
consideration in any construction or interpretation of the Lease or any of the
provisions of the Lease.
38. APPLICABILITY TO HEIRS AND ASSIGNS
Subject to the provisions of paragraph (10) and the rider thereto, the
provisions of the Lease shall apply to, bind and inure to the benefit of the
Lessor and Lessee, and the respective heirs, successors, legal representatives
and assigns of Lessor and Lessee. "Assigns," as applicable to Lessee, shall
include only assignments by operation of law and shall not include voluntary
assignments which are expressly prohibited by the lease. The term "Lessor" shall
mean only the owner, a mortgagee in possession, or a term lessee of the
Building. In the event of any sale of the Building or any lease thereof, or if a
mortgagee shall take possession of the Premises, the Lessor named herein shall
be and hereby is entirely freed and relieved of all covenants and obligations of
Lessor hereunder accruing thereafter, and it shall be deemed without further
agreement that the purchaser, the term lessee of the Building, or the mortgagee
in possession shall have assumed and agreed to carry out any and all covenants
and obligations of Lessor hereunder. Lessee agrees to attorn to any purchaser,
mortgagee or beneficiary at any such sale.
39. [Intentionally Deleted]
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40. ATTORNEYS' FEES
In any action or proceeding which Lessor or Lessee may be required to
prosecute to enforce their respective rights under the Lease, the unsuccessful
party therein shall pay all costs incurred by the prevailing party therein,
including reasonable attorneys' fees, and said costs and attorneys' fees shall
be made a part of the judgment in said action.
41. APPLICABLE LAW
The Lease and the rights and obligations of the parties hereto shall
be construed and enforced in accordance with the laws of the State of
California.
42. HAZARDOUS MATERIALS
Lessor has caused the building of which the Premises are a part to be
examined by consultants for asbestos and other toxic or hazardous materials. The
reports by said consultants indicate no asbestos or toxic or hazardous materials
were found in the Premises. Copies of reports will be made available to tenant
upon written request. Notwithstanding the foregoing, Lessor is not responsible
for any inaccuracies in such reports, it being understood that Lessor makes no
representation or warranty as to their completeness or accuracy. Tenant is
advised to conduct or have conducted such tests or surveys as tenant deems
appropriate to satisfy tenant as to the safety of the Premises from asbestos or
toxic or hazardous materials. Tenant shall obtain Lessors consent to specific
tests or studies to be conducted by tenant or tenants agents and Lessor shall
not unreasonably withhold such
43. SURRENDER OF PREMISES
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The voluntary or other surrender of the Lease by Lessee, or a mutual
cancellation thereof, shall not work a merger and shall, at the option of
Lessor, terminate all or any existing subleases or subtenancies or may, at the
option of Lessor, operate as an assignment to Lessor of any or all such
subleases or subtenancies.
44. BROKERAGE
Lessor and Lessee each represent that they have not dealt with any
broker in connection with this Lease and Lessor and Lessee each agree to
indemnify the other against any claims for commissions (and all damages and
costs relating thereto, including but not limited to attorney's fees) arising
from the actual or alleged acts of the indemnifying party. This representation
shall survive the expiration or termination of this Lease.
45. ENTIRE AGREEMENT
This instrument, along with any exhibits and attachments hereto, shall
constitute the entire agreement between Lessor and Lessee relative to the
Premises. This agreement and the exhibits and attachments may be altered,
amended or revoked only by an instrument in writing signed by both Lessor and
Lessee. Lessor and Lessee agree hereby agree that all prior or contemporaneous
oral agreements between and among themselves and their agents and
representatives relative to the leasing of the Premises are merged in or revoked
by this agreement.
The following exhibits are attached to the Lease and incorporated
herein by reference thereto:
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(a) Exhibit A - Description of Premises
(b) Exhibit B - Description of Office Building Area
(c) Exhibit C - Rules and Regulations
(d) Exhibit D - Lessor's Janitorial Services
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IN WITNESS WHEREOF, the Parties hereto have executed the Lease on the day
and year first above written. Each counterpart of this Lease duly signed by the
parties shall be deemed an original for all purposes.
"Lessor"
CBS CORPORATION
By: /s/ Elliot S. Metz
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Its: Managing Director, Corporate R.E.
----------------------------------------
By:
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Its:
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"Lessee"
MARKETWATCH, LLC
By: /s/ J. Peter Bardwick
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Its: C.F.O.
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By:
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Its:
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EXHIBIT B
DESCRIPTION OF OFFICE BUILDING AREA
All of the real property situated in the City, and County of San Francisco,
State of California, described as follows:
Beginning at the point of intersection of the northerly line of Broadway
and the westerly line of Battery Street; running thence westerly along the
northerly line of Broadway 137 feet and 6 inches; thence at a right angle
northerly 275 feet to the southerly line of Vallejo Street; thence at a right
angle easterly along the southerly line of Vallejo Street 137 feet and 6 inches
to the westerly line of Battery Street; thence to a right angle southerly along
said line of Batter Street 275 feet to the point of beginning.
Being a portion of 50 Vara Block No. 31.
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EXHIBIT C
RULES AND REGULATIONS
1. Sidewalks, doorways, vestibules, halls, stairways and other similar
areas shall not be obstructed by Lessee or used by Lessee for any purpose other
than ingress and egress to and from the Premises and for going from one part of
the Building to another part of the Building.
2. Plumbing fixtures and appliances shall be used only for the purpose
designated, and no sweeping, rubbish, rags or other unsuitable material shall be
thrown or place therein. Damage resulting to any such fixtures or appliances
from misuse by Lessee shall be paid by Lessee and Lessor shall not in any case
be responsible therefor.
3. Signs, advertisements, graphics or notices visible in or from public
corridors shall be subject to Lessor's approval. No nails, hooks or screws shall
be driven or inserted in any part of the Building except with the express
consent of Lessor.
4. Lessee shall refer contractors, contractors' representatives and
installation technicians rendering any service to Lessee to Lessor for Lessor's
supervision, approval and control before the performance of any contractual
services. This provision shall apply to all work performed in the Building,
including, but not limited to, installations of telephones, telegraph equipment,
electrical devices and attachments, and any and all installation of any nature
affecting floors, walls, woodwork, trim, windows, ceilings, equipment and any
other physical portion of the Building.
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5. Movement in or out of the building of furniture or office equipment or
dispatch or receipt by Lessee of any bulky material, merchandise or materials
which require use of elevators or stairways or movement through the Building
entrances or lobby shall be restricted to such hours as Lessor shall designate.
All such movement shall be under the supervision of Lessor and in the manner
agreed between Lessee and Lessor by prearrangement before performance. All
movement of the above listed items which shall require the use of an elevator
shall be restricted to the Building's freight elevator. Such prearrangement
initiated by Lessee shall include determination by lessor, and subject to
lessor's decision and control, as to the time, method and routing of movement
and as to limitations for safety or other concerns which may prohibit any
article, equipment or any other item from being brought into the Building.
Lessee shall assume all risks as to the damage to articles moved an injury to
persons or public engaged or not engaged in such movement, including equipment,
property and personnel of Lessor if damaged or injured as a result or act in
connection with carrying out this service for Lessee from time of entering the
Building to completion of work; Lessor shall not be liable for acts of any
persons engaged in, or any damage or loss to any of said property or persons
resulting from, any act in connection with such service performed for Lessee.
6. All damage done to the Building by bring in or taking out any property
of Lessee, or done by Lessee's property while in the Building, shall be repaired
at the expense of Lessee. Lessee shall notify Lessor when heavy equipment (such
as office safes) are to be taken in or out of the Building, and the moving shall
be done under the supervision of Lessor, after written permit from Lessor,
Persons employed to move such property must be acceptable to Lessor.
7. Corridor doors, when not in use, shall be kept closed.
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8. Lessee shall cooperate with Lessor's employees in keeping the Premises
area neat and clean. Lessee shall not employ any person for the purpose of such
cleaning other than the Building's cleaning and maintenance personnel except
with prior written approval of Lessor; and such approval shall not be
unreasonably withheld.
9. To insure orderly operation of the Building, no ice, mineral or other
eater, towels, newspapers, etc., shall be delivered to the Premises except by
persons appointed or approved by Lessor in writing.
10. Nothing shall be swept or thrown into the corridors, halls, elevator
shafts or stairways. No birds or animals shall be brought into or kept in, on or
about the Premises.
11. No machinery of any kind shall be operated by Lessee on, in or about
the Premises without the prior written consent of Lessor.
12. Lessee shall comply with all requirements necessary for the security
of the Premises, including the use of service passes issued by lessor for
after-hours removal of Office equipment/packages, and signing in and/or out in
the security register located in the Building lobby after hours.
13. Lessor reserves the right to rescind any of these rules and
regulations and to make such other and further rules and regulations as in
Lessor's judgment shall, from time to time, be necessary for the safety,
protection care and cleanliness of the Building, the operation thereof, the
preservation of good order therein and the protection and comfort of the
Building's tenants and their agents, employees and invitees, which rules and
regulations, when made and written notice
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thereof given to lessee, shall be binding upon Lessee in like manner as if
originally herein prescribed.
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EXHIBIT D
SCHEDULE OF LESSOR'S STANDARD
JANITORIAL AND CLEANING SERVICES
Lessor shall provide reasonable janitorial, cleaning and sanitation
services, Monday through Friday, after normal business hours.
Lessor shall not provide services on Saturdays, Sundays and days recognized
as holidays.
Lessor reserves the right to alter the level of such services from time to
time as determined by Lessor to be appropriate for the maintenance of the
Building; provided, however, such services shall be comparable to janitorial and
cleaning services provided in similar office buildings.
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