California-San Francisco-300 California Street Sublease - The Gap Inc. and PlanetOut Partners USA Inc.
SUBLEASE AGREEMENT
This SUBLEASE AGREEMENT ("Sublease") is made and entered into
as of the 17th day of October, 2002 by and between THE GAP, INC., a Delaware
corporation ("Sublandlord"), and PLANETOUT PARTNERS USA, INC., a Delaware
corporation ("Subtenant"), with reference to the following recitals of fact:
RECITALS
A. 300 CALIFORNIA ASSOCIATES, LLC, a California limited
liability company, as landlord ("Landlord"), and buzzsaw.com, Inc., a Delaware
corporation, as tenant ("buzzsaw"), entered into that certain Office Lease dated
as of September 21, 1999 ("Original Lease") whereby Landlord leased to buzzsaw
the third (3rd) and fourth (4th) floors ("Original Premises") of the building
located at 300 California Street, San Francisco, California (the "Building"), as
more particularly described in the Original Lease, upon the terms and conditions
contained therein.
B. buzzsaw, as assignor, and Sublandlord, as assignee,
entered into that certain Assignment and Assumption Agreement dated as of
November 30, 1999 ("Assignment") whereby buzzsaw assigned its entire interest in
the Original Lease to Sublandlord. Landlord, buzzsaw and Sublandlord entered
into that certain Consent to Assignment dated as of November 30, 1999
("Consent") whereby Landlord consented to the assignment of the Original Lease
to Sublandlord and agreed to release buzzsaw from liability under the Original
Lease.
C. Landlord and Tenant entered into that certain First
Amendment to Lease dated as of November 30, 1999 ("First Amendment") whereby
Landlord and Sublandlord agreed to, among other things, expand the size of the
Original Premises to include the entire second (2nd) floor of the Building
("Expansion Premises"). The Original Premises, as expanded by the Expansion
Premises, shall hereinafter be referred to as the "Master Premises". The
Original Lease, as amended by the First Amendment, shall sometimes hereinafter
be referred to as the "Master Lease". A copy of the Master Lease is attached
hereto as Exhibit "A" and made a part hereof.
D. Sublandlord and Subtenant are desirous of entering
into a sublease for that portion of the Master Premises consisting of the entire
second (2nd) and third (3rd) floors of the Building as shown on the demising
plan attached hereto as Exhibit "B" and made a part hereof ("Sublease Premises")
on the terms and conditions hereafter set forth.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants
herein contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto mutually
covenant and agree as follows:
1. Defined Terms. All capitalized terms used herein
shall have the same meaning ascribed to them in the Master Lease unless
otherwise defined herein.
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2. Demise. Sublandlord hereby subleases and demises to
Subtenant and Subtenant hereby hires and subleases from Sublandlord the Sublease
Premises (which the parties stipulate contain 30,557 rentable square feet), upon
and subject to the terms, covenants and conditions hereinafter set forth.
3. Lease Term. The term of this Sublease ("Term") shall
be for approximately twenty-eight (28) months, commencing on the latest of (i)
the date of full execution and delivery of this Sublease by Sublandlord and
Subtenant, (ii) the date Landlord's consent to this Sublease is received in
accordance with Section 20 below, and (iii) the receipt by Sublandlord from
Subtenant of the first installment of the Deposit (as defined in Paragraph 6
below) (the "Sublease Commencement Date"), and ending, unless sooner terminated
as provided herein, on January 31, 2005 ("Sublease Expiration Date").
4. Use. The Sublease Premises shall be used and occupied
by Subtenant for general office use only and for no other purpose. Subtenant's
use shall comply with Paragraphs 2 and 9 of the Original Lease.
5. Subrental.
(a) Base Rental. Beginning on January 1, 2003
("Sublease Rent Commencement Date") and thereafter during the Term of this
Sublease and ending on the Sublease Expiration Date, Subtenant shall pay to
Sublandlord base rent ("Base Rental") in the amount of $30,557.00 per month
(based on $12.00 per rentable square foot per annum within the Sublease
Premises). Base Rental and additional rent (including without limitation, late
fees) shall hereinafter be collectively referred to as "Rent."
(b) Prorations. If the Sublease Rent
Commencement Date is not the first (1st) day of a month, or if the Sublease
Expiration Date is not the last day of a month, a prorated installment of
monthly Base Rental based on a thirty (30) day month shall be paid for the
fractional month during which the Term commenced or terminated.
(c) Additional Rent. Beginning with the Sublease
Commencement Date and continuing to the Sublease Expiration Date, Subtenant
shall pay to Sublandlord as additional rent for this subletting all special or
after-hours cleaning, heating, ventilating, air-conditioning, elevator and
other Building charges invoiced by Landlord to Sublandlord and attributable to
Subtenant's use or occupancy of the Sublease Premises, and all other additional
expenses, costs and charges payable under the Master Lease to Landlord in
connection with Subtenant's use of the Sublease Premises.
(d) Operating Expenses and Taxes. Beginning with
the expiration of the calendar year 2003 ("Base Year") and thereafter during the
Term of this Sublease, Subtenant shall pay to Sublandlord as additional rent for
this subletting an amount equal to 66.6% percent ("Subtenant's Share") of the
excess Operating Expenses and Taxes (as set forth in Paragraphs 6 and 7 of the
Original Lease) for the Master Premises over the total amount of Operating
Expenses and Taxes for the Master Premises incurred by Sublandlord during the
Base Year pursuant to the terms and conditions of the Master Lease. Subtenant's
Share is a percentage
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which reflects the ratio of the rentable square feet in the Sublease Premises to
the rentable square feet in the Master Premises.
(e) Payment of Rent. Except as otherwise
specifically provided in this Sublease, Rent shall be payable in lawful money
without demand, and without offset, counterclaim, or setoff in monthly
installments, in advance, on the first day of each and every month during the
Term of this Sublease. All of said Rent is to be paid to Sublandlord at its
office at The Gap, Inc., 40 First Plaza, Albuquerque, New Mexico 87102, Attn:
Real Estate Accounts Payable, or at such other place or to such agent and at
such place as Sublandlord may designate by notice to Subtenant. Any additional
rent payable on account of items which are not payable monthly by Sublandlord to
Landlord under the Master Lease is to be paid by Subtenant to Sublandlord,
provided that an invoice or other written notice of such additional rent charge
is given to Subtenant at least ten (10) days prior to the due date, as and when
such items are payable by Sublandlord to Landlord under the Master Lease. Upon
written request therefor, Sublandlord agrees to provide Subtenant with copies of
any statements or invoices received by Sublandlord from Landlord pursuant to the
terms of the Master Lease.
6. Security Deposit. Concurrently with the Sublease
Commencement Date Subtenant shall deposit with Sublandlord the sum of Ninety-One
Thousand Six Hundred Seventy-One and No/100 Dollars ($91,671.00), and on the
Sublease Rent Commencement Date Subtenant shall deposit with Sublandlord the sum
of Thirty Thousand Five Hundred Fifty-Seven and No/100 Dollars ($30,557.00), for
a total deposit of One Hundred Twenty-Two Thousand Two Hundred Twenty-Eight and
No/100 Dollars ($122,228.00) ("Deposit"), which shall be held by Sublandlord as
security for the full and faithful performance by Subtenant of its covenants and
obligations under this Sublease. The Deposit is not an advance Rent deposit, an
advance payment of any other kind, or a measure of Sublandlord's damage in case
of Subtenant's default. If Subtenant defaults in the full and timely performance
of any or all of Subtenant's covenants and obligations set forth in this
Sublease, then Sublandlord may, from time to time, without waiving any other
remedy available to Sublandlord, use the Deposit, or any portion of it, to the
extent necessary to cure or remedy the default or to compensate Sublandlord for
all or a part of the damages sustained by Sublandlord resulting from Subtenant's
default. Subtenant shall immediately pay to Sublandlord within five (5) days
following demand, the amount so applied in order to restore the Deposit to its
original amount, and Subtenant's failure to immediately do so shall constitute a
default under this Sublease. Sublandlord shall return the Deposit (less any
amounts retained by Sublandlord under the terms of this Section following an
Event of Default) to Subtenant after the expiration or earlier termination of
this Sublease. Sublandlord's obligations with respect to the Deposit are those
of a debtor and not a trustee. Sublandlord shall not be required to maintain the
Deposit separate and apart from Sublandlord's general or other funds and
Sublandlord may commingle the Deposit with any of Sublandlord's general or other
funds. Subtenant shall not at any time be entitled to interest on the Deposit.
7. Signage. Subject to the terms of the Master Lease,
including Paragraph 49 of the Original Lease, Subtenant is granted the right, at
or about the inception of the Term of this Sublease, to (i) a sign identifying
Subtenant in the elevator lobby on the second (2nd) and third (3rd) floors of
the Building and (ii) Building directory signage, subject to Landlord's and
Sublandlord's prior written approval, which approval by Sublandlord shall not be
unreasonably withheld, delayed or conditioned. Except for the foregoing,
Subtenant shall have no right to
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maintain Subtenant identification signs in any other location in, on, or about
the Sublease Premises or the Building. The size, design, color and other
physical aspects of all such permitted signs shall also be subject to Landlord's
and Sublandlord's prior written approval, which approval by Sublandlord shall
not be unreasonably withheld, delayed or conditioned and shall also be subject
to any covenants, conditions or restrictions encumbering the Sublease Premises
and any applicable municipal or other governmental permits and approvals. The
cost of all such signs, including the installation, maintenance and removal
thereof, shall be at Subtenant's sole cost and expense. If Subtenant fails to
maintain its signs, or if Subtenant fails to remove same upon the expiration or
earlier termination of this Sublease and repair any damage caused by such
removal, Sublandlord may do so at Subtenant's expense and Subtenant shall
reimburse Sublandlord for all actual costs incurred by Sublandlord to effect
such removal.
8. Parking. Subject to the terms of Paragraph 55 of the
Original Lease, Subtenant shall have the right, during the Term of this
Sublease, to lease up to ten (10) parking spaces in the parking garage of the
Building. All such parking privileges shall be at the rates and subject to the
terms and conditions set forth in the Master Lease and by the Building garage,
and Subtenant shall reimburse Sublandlord, upon demand, for those amounts billed
to Sublandlord by Landlord for said parking privileges.
9. Sublandlord's Work. Sublandlord and Subtenant hereby
acknowledge that Subtenant is not subleasing the entire Master Premises and also
that Sublandlord and Subtenant may desire that certain furniture and equipment
not part of this sublease transaction ("Excess F&E") be removed from the
Subleased Premises. To the extent Sublandlord determines, in the exercise of
Sublandlord's reasonable discretion, that the telecommunications and other
technical functions of the Sublease Premises should be separated from the
remainder of the telecommunications and other technical functions of the Master
Premises, and to the extent the Excess F&E must be removed from the Sublease
Premises, Sublandlord shall be responsible, at Sublandlord's sole cost and
expense, for performing such work ("Sublandlord's Work"). Subtenant acknowledges
that Sublandlord's Work may be performed, if at all (i) prior to the Sublease
Commencement Date, or (ii) after the Sublease Commencement Date. To the extent
Sublandlord reasonably determines that Sublandlord's Work must be performed, and
the Term has commenced, any such work shall be performed at a time reasonably
acceptable to Subtenant, and in a manner that does not interfere with the
ongoing business operations of Subtenant in the Sublease premises. Subject to
the foregoing, Subtenant agrees to cooperate with Sublandlord in the performance
of Sublandlord's Work, including granting Sublandlord access to the Sublease
Premises to perform same.
10. Condition of Premises. Subtenant acknowledges that it
is subleasing the Sublease Premises "as-is" and that Sublandlord is not making
any representation or warranty concerning the condition of the Sublease Premises
and that Sublandlord is not obligated to perform any work to prepare the
Sublease Premises for Subtenant's occupancy. Subtenant further acknowledges and
agrees that Subtenant is not entitled to receive a tenant improvement allowance
or any other allowance from Sublandlord or Landlord in connection with this
Sublease. Subtenant is not authorized to make or do any alterations or
improvements in or to the Sublease Premises without Sublandlord's and, to the
extent required by the Master Lease, Landlord's consent. Sublandlord agrees not
to unreasonably withhold its consent to any alteration or improvement which does
not directly or substantially affect the Building systems or
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structure. Any such alterations must be performed in accordance with the terms
of the Master Lease, including Paragraph 12 thereof. At the expiration or sooner
termination of this Sublease, Subtenant shall surrender the Sublease Premises to
Sublandlord in the condition originally delivered, reasonable wear and tear and
damage by casualty excepted, and shall remove any alterations or improvements
made by Subtenant, and shall repair any damage to the Sublease Premises caused
by said removal, at Subtenant's sole cost and expense. Subtenant's obligations
under this Section 10 shall survive the termination of this Sublease.
11. Furniture. During the Term of this Sublease,
Subtenant shall have the use of the furniture located in the Sublease Premises
and listed on Exhibit "C" attached hereto and made a part hereof (the "Existing
Furniture"). Any furniture in the Sublease Premises not included in the Existing
Furniture shall be removed by Sublandlord, at its sole cost and expense, prior
to the Sublease Commencement Date. Subtenant acknowledges that Subtenant is
leasing the Existing Furniture in its "as-is" condition, and Sublandlord is not
making any representation or warranty concerning the condition of the Existing
Furniture. Subtenant agrees that Sublandlord shall have no liability whatsoever
for any claims arising in connection with Subtenant's use of the Existing
Furniture, and Subtenant hereby agrees to indemnify and hold Sublandlord
harmless from any such claims. To the extent Subtenant needs to reconfigure the
Existing Furniture, any such reconfiguration shall be performed by a contractor
designated by Sublandlord at Subtenant's sole cost and expense. Subtenant shall
return to Sublandlord all such Existing Furniture on the expiration or earlier
termination of this Sublease in the same condition as same were in on the date
the Sublease Premises were first made available by Sublandlord to Subtenant,
reasonable wear and tear and damage by casualty excepted, unless Subtenant
purchases the Existing Furniture at the end of the Term pursuant to the terms
hereof. During the Term of the Sublease, the Existing Furniture shall remain the
property of Sublandlord. Prior to the end of the term of this Sublease, and
regardless of whether Subtenant elects to remain in the Sublease Premises
following the Sublease Expiration Date pursuant to a separate agreement with
Landlord, Sublandlord and Subtenant shall work together, in good faith, to
develop a removal plan that is reasonably satisfactory to Sublandlord and
Subtenant in order to minimize the disruption to Subtenant's business operations
in the Sublease Premises and will allow Sublandlord to have the Existing
Furniture removed prior to the end of the Term, unless Sublandlord elects to
sell, and Subtenant elects to purchase, the Existing Furniture in accordance
with this paragraph as of the Sublease Expiration Date. Sublandlord shall give
Subtenant written notice of Sublandlord's timetable for removing the Existing
Furniture and its determination as to whether Sublandlord desires to sell the
Existing Furniture to Subtenant no earlier than one hundred eighty (180), and no
later than at least one hundred twenty (120), days prior to the Sublease
Expiration Date ("Removal Notice"). Subtenant shall give written notice to
Sublandlord of its election to purchase the Existing Furniture within ten (10)
days of receipt of the Removal Notice. If Subtenant elects to purchase the
Existing Furniture, Sublandlord and Subtenant shall attempt to agree upon the
fair market value of the Existing Furniture using reasonable good faith efforts.
If Sublandlord and Subtenant fail to reach agreement within thirty (30) days
following Subtenant's written notice (the "Outside Agreement Date"), then the
parties shall submit the dispute to arbitration as provided in (a) through (e).
(a) Sublandlord and Subtenant shall each appoint
one arbitrator who shall be a qualified expert in the appraisal of used office
furniture. Each such arbitrator shall be appointed within fifteen (15) days
after the Outside Agreement Date. Sublandlord and Subtenant
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may consult with their selected arbitrators prior to appointment and may select
an arbitrator who is favorable to their respective positions (including an
arbitrator who has previously represented Sublandlord and/or Subtenant, as
applicable). The arbitrators so selected by Sublandlord and Subtenant shall be
deemed "Advocate Arbitrators."
(b) Within ten (10) days of the date of the
appointment of the last Advocate Arbitrator, the two Advocate Arbitrators shall
agree upon and appoint a third arbitrator ("Neutral Arbitrator") who shall be
qualified under the same criteria set forth hereinabove for qualification of the
two Advocate Arbitrators except that neither the Sublandlord or Subtenant or
either parties Advocate Arbitrator may, directly or indirectly, consult with the
Neutral Arbitrator prior or subsequent to his or her appearance.
(c) The three arbitrators shall within thirty
(30) days of the appointment of the Neutral Arbitrator reach a decision as to
fair market value of the Existing Furniture and simultaneously publish a ruling
("Award") indicating the fair market value of same.
(d) The Award issued by the majority of the
three arbitrators shall be binding upon Sublandlord and Subtenant.
(e) The cost of arbitration shall be paid by
Sublandlord and Subtenant equally.
If the Existing Furniture is sold to Subtenant, Subtenant hereby agrees to
reimburse Sublandlord upon demand for any and all taxes payable or imposed upon
Sublandlord in connection with the sale thereof to Subtenant, including sales
and use taxes, if any.
12. Equipment. During the term of this Sublease,
Subtenant shall have the use of the equipment located in the server room in the
Sublease Premises, which equipment is identified on Exhibit "D-l" attached
hereto and made a part hereof (the "Server Room Equipment"), and use of the
access control system located in the Sublease Premises and identified on Exhibit
"D-2" attached hereto and made a part hereof (the "Access Control Equipment").
Subtenant acknowledges that Subtenant is leasing the Server Room Equipment and
the Access Control Equipment in its "as-is" condition, and Sublandlord is not
making any representation or warranty concerning the condition of the Server
Room Equipment and/or the Access Control Equipment. Subtenant agrees that
Sublandlord shall have no liability whatsoever for any claims arising in
connection with Subtenant's use of the Server Room Equipment and/or the Access
Control Equipment, and Subtenant hereby agrees to indemnify and hold Sublandlord
harmless from any such claims. Subtenant shall return to Sublandlord the Server
Room Equipment and the Access Control Equipment on the expiration or earlier
termination of this Sublease in the same condition as same were in on the date
the Sublease Premises were first made available by Sublandlord to Subtenant,
reasonable wear and tear and damage by casualty excepted, unless Subtenant
purchases the Server Room Equipment and/or the Access Control Equipment at the
end of the Term pursuant to the terms hereof. Subtenant may install additional
software to the Access Control Equipment so that the equipment recognizes only
Subtenant's authorized personnel for access to the Subleased Premises (to the
exclusion of any of Sublandlord's personnel), and may issue access
control/identification cards using the Access
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Control Equipment that identifies Subtenant. During the Term of the Sublease,
the Server Room Equipment and the Access Control Equipment shall remain the
property of Sublandlord. Prior to the end of the term of this Sublease, and
regardless of whether Subtenant elects to remain in the Sublease Premises
following the Sublease Expiration Date pursuant to a separate agreement with
Landlord, Sublandlord and Subtenant shall work together, in good faith, to
develop a removal plan for the Server Room Equipment and the Access Control
Equipment that is reasonably satisfactory to Sublandlord and Subtenant in order
to minimize the disruption to Subtenant's business operations in the Sublease
Premises and will allow Sublandlord to have the Server Room Equipment and the
Access Control Equipment removed prior to the end of the Term, unless
Sublandlord elects to sell, and Subtenant elects to purchase, the Server Room
Equipment and/or the Access Control Equipment in accordance with this paragraph
as of the Sublease Expiration Date. Sublandlord shall give Subtenant written
notice of Sublandlord's timetable for removing the Server Room Equipment and the
Access Control Equipment and its determination as to whether Sublandlord desires
to sell the Server Room Equipment and the Access Control Equipment to Subtenant
no earlier than one hundred eighty (180), and no later than at least one hundred
twenty (120), days prior to the Sublease Expiration Date ("Removal Notice").
Subtenant shall give written notice to Sublandlord of its election to purchase
the Server Room Equipment and/or the Access Control Equipment within ten (10)
days of receipt of the Removal Notice. If Subtenant elects to purchase the
Server Room Equipment and/or the Access Control Equipment, Sublandlord and
Subtenant shall attempt to agree upon the fair market value of the equipment
being purchased by Subtenant using reasonable good faith efforts. If Sublandlord
and Subtenant fail to reach agreement within thirty (30) days following
Subtenant's written notice (the "Outside Agreement Date"), then the parties
shall submit the dispute to arbitration as provided in Paragraph 11 (a) through
(e), with appropriate modifications to refer to the equipment being purchased.
13. Incorporation of Terms of Master Lease.
(a) This Sublease is and at all times shall be
subject and subordinate to the Master Lease and, to the extent that the Master
Lease is also subject and subordinate to any instruments, this Sublease shall be
subject and subordinate to such instruments. Subject to the modifications set
forth in this Sublease, the terms of the Master Lease are incorporated herein by
reference, and shall, as between Sublandlord and Subtenant (as if they were
Landlord and Tenant, respectively, under the Master Lease) constitute the terms
of this Sublease except to the extent that they are inapplicable to,
inconsistent with, or modified by, the terms of this Sublease. In the event of
any inconsistencies between the terms and provisions of the Master Lease and the
terms and provisions of this Sublease, the terms and provisions of this Sublease
shall govern. Subtenant acknowledges that it has reviewed the Master Lease and
is familiar with the terms and conditions thereof. For the purposes of this
Sublease and with respect to the Sublease Premises only, wherever in the Master
Lease the term "Landlord" is used it shall be deemed to mean Sublandlord and
wherever in the Master Lease the word "Tenant" is used it shall be deemed to
mean Subtenant herein.
(b) For the purposes of incorporation herein,
the terms of the Master Lease are subject to the following additional
modifications:
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(i) In all provisions of the Master
Lease (under the terms thereof and without regard to modifications thereof for
purposes of incorporation into this Sublease) requiring the approval or consent
of Landlord, Subtenant shall be required to obtain the approval or consent of
both Sublandlord and Landlord.
(ii) In all provisions of the Master
Lease requiring Tenant to submit, exhibit to, supply or provide Landlord with
evidence, certificates, or any other matter or thing, Subtenant shall be
required to submit, exhibit to, supply or provide, as the case may be, the same
to both Landlord and Sublandlord. In any such instance, the determination of
Landlord as to whether such evidence, certificate or other matter or thing is
satisfactory shall be determinative.
(iii) Sublandlord shall have no
obligation to restore or rebuild any portion of the Sublease Premises after any
destruction or taking by eminent domain; provided, however, in the event the
Sublease Premises or any portion of the Building necessary for Subtenant's
occupancy are damaged by fire, earthquake or other casualty, and if the time
estimated by Landlord to repair or restore the Sublease Premises or any portion
of the Building necessary for Subtenant's occupancy exceeds ninety (90) days,
Subtenant may elect to terminate this Sublease within thirty days after
Landlord's notice or determination as of a date designated by Subtenant in a
written notice to Sublandlord, in which event the right of first offer
provisions of this Section 11 shall be inapplicable and the date of termination
of this Sublease shall be deemed the Sublease Expiration Date; provided,
however, that Subtenant shall have no right to terminate this Sublease under
this provision to the extent that the damage was caused by the negligence or
willful misconduct of Subtenant or its agents, contractors, employees,
subcontractors, licensees or invitees.
(iv) Subtenant shall not be entitled to
any allowances (design, construction, moving or any other allowances) granted to
Tenant under the Master Lease.
(v) With respect to any obligation of
Subtenant to be performed under this Sublease, wherever the Master Lease grants
to Sublandlord a specified number of days to perform its obligations under the
Master Lease, except as otherwise provided herein, Subtenant shall have (a) two
(2) fewer days to perform obligations for which the Master Lease provides a
period of less than fifteen (15) days and (b) five (5) fewer days to perform
obligations for which the Master Lease provides a period of fifteen (15) days or
more, including, without limitation, curing any defaults.
(c) The following provisions of the Master Lease
are specifically excluded:
(i) Original Lease: Paragraphs 4, 5(a),
5(b) (first sentence only), 8, 12 (first paragraph, last two sentences only),
16(b)(1) and (2), 40, 44, 46 and 56; Exhibit C, Exhibit E, Schedule 1, Schedule
2 and Schedule 3.
(ii) First Amendment: Sections 2, 3, 4,
6, 9, 10, 11 and 13; and Schedule 3.
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(d) Except for the terms of the Master Lease
expressly excluded from incorporation into this Sublease, Sublandlord hereby
assigns to Subtenant all of Sublandlord's rights and privileges to which
Sublandlord, as Tenant, is entitled under the Master Lease to the extent such
rights and privileges are applicable to the Sublease Premises. Sublandlord
agrees to cooperate with Subtenant, at no out-of-pocket cost and expense to
Sublandlord, in obtaining any required consents or authorizations of Landlord
reasonably requested by Subtenant in connection with its use and occupancy of
the Sublease Premises. To the extent Landlord agrees, Sublandlord authorizes
Subtenant to communicate directly with Landlord with respect to any services or
work requested or required by Subtenant in the Sublease Premises to the extent
Landlord is required to provide same pursuant to the Master Lease. Sublandlord
agrees to not unreasonably withhold its consent to any work or services
requested by Subtenant of Landlord in or to the Sublease Premises, to the extent
the consent of Sublandlord, as Tenant under the Master Lease, is required or
requested.
(e) Subtenant acknowledges that the term of the
Master Lease is currently scheduled to expire on January 31, 2005.
Notwithstanding any option to renew or right to lease additional premises
contained in the Master Lease, Sublandlord shall have no obligation to Subtenant
to (I) renew or extend the term of the Master Lease, or (II) sublease any
additional premises to Subtenant.
14. Subtenant's Obligations.
(a) Subtenant covenants and agrees that all
obligations of Sublandlord under the Master Lease shall be done or performed by
Subtenant with respect to the Sublease Premises, except as otherwise provided by
this Sublease, and Subtenant's obligations shall run to Sublandlord and Landlord
as Sublandlord may determine to be appropriate or be required by the respective
interests of Sublandlord and Landlord. Anything contained in any provision of
this Sublease to the contrary notwithstanding, Subtenant agrees, with respect to
the Sublease Premises, to comply with and remedy any default in this Sublease or
the Master Lease which is Subtenant's obligation to cure, within the period
allowed to Sublandlord under this Sublease, even if such time period is shorter
than the period otherwise allowed under the Master Lease due to the fact that
notice of default from Sublandlord to Subtenant is given after the corresponding
notice of default from Landlord to Sublandlord (any such default not cured
within the time period allowed to Subtenant under this Sublease and the Master
Lease as incorporated by the terms of this Sublease, shall, upon notice to
Subtenant from Sublandlord, be deemed an "Event of Default" hereunder). Provided
Subtenant is given notice and the opportunity to cure such act or omission in
accordance with the terms of the Master Lease as incorporated into this
Sublease, Subtenant agrees to indemnify Sublandlord, and hold it harmless, from
and against any and all claims, damages, losses, expenses and liabilities
(including reasonable attorneys' fees) incurred as a result of the
non-performance, non-observance or non-payment of any of Sublandlord's
obligations under the Master Lease which, as a result of this Sublease, became
an obligation of Subtenant. If Subtenant makes any payment to Sublandlord
pursuant to this indemnity, Subtenant shall be subrogated to the rights of
Sublandlord concerning said payment. Subtenant shall not do, nor permit to be
done, any act or thing which is, or with notice or the passage of time would be,
a default under this Sublease or the Master Lease.
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(b) Subtenant agrees to forward to Sublandlord,
promptly upon receipt thereof, copies of any notices received by Subtenant from
Landlord or from any governmental authorities.
(c) In the event Subtenant shall be in default
of any covenant of, or shall fail to honor any obligation under this Sublease,
Sublandlord shall have available to it against Subtenant all of the remedies
available (i) to Landlord under the Master Lease in the event of a similar
default on the part of Sublandlord thereunder or (ii) at law.
15. Sublandlord's Obligations.
(a) Sublandlord shall send to Subtenant promptly
following receipt thereof from the Landlord all notices of default under the
Master Lease that are based on a condition in, or the act or omission of
Subtenant in the use or occupancy, of the Sublease Premises, or on the failure
to perform of any obligation of Tenant assumed by Subtenant under this Sublease.
(b) Sublandlord covenants and agrees to pay all
fixed rent and additional rent payable by Sublandlord pursuant to the Master
Lease and to otherwise not violate any of the terms and provisions of the Master
Lease, or to waive any of its rights as Tenant thereunder, to the extent same
would adversely affect Subtenant's rights under this Sublease, and agrees to
indemnify Subtenant, and hold it harmless, from and against any and all claims,
damages, losses, expenses and liabilities (including reasonable attorneys' fees)
incurred as a result of Sublandlord's breach hereof. Sublandlord shall not amend
or modify the terms of the Master Lease insofar as the same may adversely affect
Subtenant's rights and obligations under this Sublease without the prior written
consent of Subtenant, which consent shall not be unreasonably withheld;
provided, however, that Subtenant's consent shall not be required for amendments
or modifications in connection with rights granted to Tenant under the Master
Lease. Subject to the foregoing, in the event the Master Lease is terminated for
any reason, this Sublease shall automatically cease and terminate as of the date
the Master Lease is so terminated and upon such termination, for reasons other
than Subtenant's default under this Sublease, all rent and other charges and
sums due and owing hereunder shall terminate.
(c) Sublandlord agrees that Subtenant shall be
entitled to receive all services and repairs to be provided by Landlord to
Sublandlord under the Master Lease. Subtenant shall look solely to Landlord for
all such services and shall not, under any circumstances, seek nor require
Sublandlord to perform any of such services, nor shall Subtenant make any claim
upon Sublandlord for any damages which may arise by reason of Landlord's default
under the Master Lease. In the event Sublandlord is prevented from performing
any of its obligations under this Sublease by a breach by Landlord of a term of
the Master Lease, then Sublandlord's sole obligation in regard to its obligation
under this Sublease shall be to use reasonable efforts in diligently pursuing
the correction or cure by Landlord of Landlord's breach. Except as hereinafter
provided, no condition resulting from a default by Landlord shall entitle
Subtenant to receive any reduction in or abatement of the Rent provided for in
this Sublease. Notwithstanding anything in the foregoing to the contrary, in the
event of a "Service Failure" (as that term is defined in the Master Lease) that
continues for a period of not more than thirty (30) consecutive days,
Subtenant's sole remedy shall be to receive an abatement of Base Rental and
10
<PAGE>
additional rent payable under this Sublease in accordance with Paragraph 20(d)
of the Master Lease, as if and to the extent that Sublandlord would have been
able to receive such a rent abatement with respect to the Sublease Premises (and
assuming that the Sublease Premises was the entire premises subject to the
Master Lease), and solely with respect to a Service Failure that continues for
no longer than the period described herein, such a condition shall not
constitute, as between Sublandlord and Subtenant, an eviction, actual or
constructive, of Subtenant or excuse Subtenant from the performance or
observance of any of its other obligations to be performed or observed under
this Sublease. In furtherance of the foregoing, Subtenant does hereby waive any
cause of action and any right to bring any action for damages against
Sublandlord by reason of any act or omission of Landlord under the Master Lease.
(d) Sublandlord certifies to Subtenant that no
uncured event of Default by Sublandlord exists under the Master Lease, it has
not received any notice of default under the Master Lease that remains uncured,
and that to its actual knowledge (without any duty of inquiry or investigation),
(i) there is no violation of any applicable law, statute, ordinance, or
governmental rule, regulation or requirement now in force with respect to the
occupancy or build-out of the Sublease Premises that would materially and
adversely affect the ability of Subtenant to occupy the Sublease Premises for
general office use, and (ii) no release of Hazardous Materials or violation of
Environmental Laws has occurred during the term of Sublandlord's occupancy of
the Sublease Premises.
16. Quiet Enjoyment. So long as Subtenant pays all of the
Rent due hereunder and performs all of Subtenant's other obligations hereunder,
Sublandlord shall do nothing to affect Subtenant's right to peaceably and
quietly have, hold and enjoy the Sublease Premises.
17. Notices. All notices, demands and requests shall be
in writing and shall be sent either by hand delivery or by a nationally
recognized overnight courier service (e.g., Federal Express), in either case
return receipt requested, to the address of the appropriate party. Notices,
demands and requests so sent shall be deemed given when the same are received.
Notices to Sublandlord shall be sent to the attention of:
The Gap, Inc.
901 Cherry Avenue
San Bruno, California 94066
Arm: Real Estate Law
with a copy to:
The Gap, Inc.
2 Folsom Street
San Francisco, California 94105
Attn: General Counsel
11
<PAGE>
Notices to Subtenant shall be sent to the attention of:
PlanetOut Partners USA, Inc.
300 California Street, Suite 200
San Francisco, California 94111
Attn: Chief Legal Officer
18. Broker. Sublandlord and Subtenant represent and
warrant to each other that, with the exception of Cushman & Wakefield of
California, Inc. and TRI Commercial ("Brokers"), no brokers were involved in
connection with the negotiation or consummation of this Sublease. Sublandlord
agrees to pay the commission of the Broker pursuant to a separate agreement.
Each party agrees to indemnify the other, and hold it harmless, from and against
any and all claims, damages, losses, expenses and liabilities (including
reasonable attorneys' fees) incurred by said party as a result of a breach of
this representation and warranty by the other party.
19. Consent of Landlord. Paragraph 16 of the Original
Lease requires Sublandlord to obtain the written consent of Landlord to this
Sublease. Sublandlord shall solicit Landlord's consent to this Sublease promptly
following the execution and delivery of this Sublease by Sublandlord and
Subtenant, however Sublandlord makes no representation or warranty that
Landlord's consent will be obtained. In the event Landlord's written consent to
this Sublease has not been obtained within ten (10) days after the execution
hereof, then this Sublease may be terminated by either party hereto upon notice
to the other, and upon such termination neither party hereto shall have any
further rights against or obligations to the other party hereto.
20. Termination of the Master Lease. If for any reason
the term of the Master Lease shall terminate prior to the Sublease Expiration
Date, this Sublease shall automatically be terminated and, except as otherwise
provided in Paragraph 15(b) above, Sublandlord shall not be liable to Subtenant
by reason thereof.
21. Assignment and Subletting.
(a) Any assignment of this Sublease or sublease
of all or a portion of the Sublease Premises shall be subject to the receipt of
Landlord's and Sublandlord's consent, which consent by Sublandlord shall not be
unreasonably withheld, and shall otherwise be subject to the terms of the Master
Lease; provided, however, Sublandlord shall not have the right of recapture
provided in the Master Lease. Any assignment or sublease by Subtenant without
Sublandlord's prior written consent shall be void. Subtenant shall advise
Sublandlord by notice of (i) Subtenant's intent to assign this Sublease or
sublease all or a portion of the Sublease Premises, (ii) the name of the
proposed assignee or sublessee and evidence reasonably satisfactory to
Sublandlord that such proposed assignee or sublessee is comparable in
reputation, stature and financial condition to tenants then leasing comparable
space in the Building, and (iii) the terms of the proposed assignment or
sublease. Sublandlord shall, within fifteen (15) days of receipt of such notice,
and any additional information requested by Landlord concerning the proposed
assignee's financial responsibility, elect one of the following:
12
<PAGE>
(i) Consent to such proposed
assignment;
(ii) Refuse such consent, which refusal
shall be on reasonable grounds.
(b) In the event that Subtenant requests
Sublandlord's consent to an assignment or a sublease under the provisions of
this Section 21, Subtenant shall pay Sublandlord's reasonable processing costs
and reasonable attorneys' fees incurred in giving such consent, including any
amounts required to be paid to Landlord in connection with same. Notwithstanding
any permitted assignment, Subtenant shall at all times remain directly,
primarily and fully responsible and liable for all payments owed by Subtenant
under the Sublease and for compliance with all obligations under the terms,
provisions and covenants of the Sublease. If for any proposed assignment,
Subtenant receives Rent or other consideration, either initially or over the
term of the assignment, in excess of the Rent required by this Sublease, after a
deduction for the following: (i) any brokerage commission paid by Subtenant in
connection therewith and (ii) any reasonable attorneys' fees in connection with
preparing and negotiating an assignment document ("Profit"), Subtenant shall pay
to Sublandlord as additional Rent, fifty percent (50%) of such Profit or other
consideration received by Subtenant within five (5) days of its receipt by
Subtenant or, in the event the assignee makes payment directly to Sublandlord,
Sublandlord shall refund fifty percent (50%) of the Profit to Subtenant after
deducting (i) and (ii) above.
22. Limitation of Estate. Subtenant's estate shall in all
respects be limited to, and be construed in a fashion consistent with, the
estate granted to Sublandlord by Landlord.
23. Entire Agreement. It is understood and acknowledged
that there are no oral agreements between the parties hereto affecting this
Sublease and this Sublease supersedes and cancels any and all previous
negotiations, arrangements, brochures, agreements and understandings, if any,
between the parties hereto or displayed by Sublandlord to Subtenant with respect
to the subject matter thereof, and none thereof shall be used to interpret or
construe this Sublease. This Sublease, and the exhibits and schedules attached
hereto, contain all of the terms, covenants, conditions, warranties and
agreements of the parties relating in any manner to the rental, use and
occupancy of the Sublease Premises and shall be considered to be the only
agreements between the parties hereto and their representatives and agents. None
of the terms, covenants, conditions or provisions of this Sublease can be
modified, deleted or added to except in writing signed by the parties hereto.
All negotiations and oral agreements acceptable to both parties have been merged
into and are included herein. There are no other representations or warranties
between the parties, and all reliance with respect to representations is based
totally upon the representations and agreements contained in this Sublease.
13
<PAGE>
IN WITNESS WHEREOF, the parties have entered into this
Sublease as of the date first written above.
SUBLANDLORD:
THE GAP, INC.,
a Delaware corporation
By: /s/ Kevin E. Solliday
----------------------------------------
Name: Kevin E. Solliday
Its: Associate General Counsel
SUBTENANT:
PLANETOUT PARTNERS USA, INC.,
a Delaware corporation
By: /s/ Todd A. Huge
----------------------------------------
Name: TODD A. HUGE
Its: VP, BUSINESS & LEGAL AFFAIRS
14
<PAGE>
EXHIBIT "A"
COPY OF MASTER LEASE
Follows this page
A-1
<PAGE>
FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE (this "AMENDMENT"), dated as of November
30, 1999, is made by and between 300 CALIFORNIA ASSOCIATES, LLC, a California
limited liability company ("LANDLORD") and THE GAP, INC., a Delaware corporation
("TENANT").
Recitals
A. Landlord and Tenant's predecessor-in-interest, buzzsaw.com,
Inc., a Delaware corporation ("BUZZSAW"), entered into that certain Office Lease
(the "ORIGINAL LEASE"), dated September 17, 1999, with respect to certain
premises (the "EXISTING PREMISES") commonly referred to as Suite 300, consisting
of approximately 15,311 rentable square feet on the third floor ("SUITE 300"),
and Suite 400, consisting of approximately 15,326 rentable square feet on the
fourth floor ("SUITE 400"), of the building (the "BUILDING") known as 300
California Street, San Francisco, California.
B. Concurrently with Landlord and Tenant's execution of this
Amendment, buzzsaw has assigned all of its rights, and Tenant has assumed all of
buzzsaw's obligations, under the Original Lease, pursuant to that certain
Assignment and Assumption Agreement, dated as of even date herewith (the
"ASSIGNMENT"). Landlord has consented to the Assignment in accordance with, and
subject to, the terms and conditions of that certain Consent to Assignment,
dated as of even date herewith. In addition, concurrently with Landlord and
Tenant's execution of this Amendment, Tenant is entering into that certain
Sublease Agreement, dated as of even date herewith (the "SUBLEASE"), whereby
Tenant is subleasing the Expansion Premises (as such term is defined in this
Amendment) to buzzsaw, all as more particularly set forth in the Sublease.
Landlord has consented to the Sublease in accordance with, and subject to, the
terms and conditions of that certain Consent to Sublease, dated as of even date
herewith.
C. In connection with the assignment of the Lease to Tenant,
Tenant has requested, and Landlord has agreed, that the Existing Premises be
increased in size and that certain other changes be made to the terms and
conditions of the Original Lease, all as more particularly set forth herein. The
Original Lease, as amended hereby, is referred to herein as the "LEASE."
Agreement
NOW, THEREFORE, in consideration of the foregoing recitals and other
good and valuable consideration, the adequacy of which is hereby acknowledged,
the parties hereto agree as follows:
1. Premises. Effective as of the date hereof, the
Existing Premises shall be expanded to include Suite 200 of the Building,
consisting of approximately 15,246 rentable square feet and generally depicted
on the preliminary floor plan attached hereto as Exhibit A (the "EXPANSION
PREMISES"). From and after the date hereof, the term "PREMISES" as used in the
Lease shall mean the Existing Premises and the Expansion Premises, collectively,
and Tenant's
<PAGE>
Share shall be increased, pursuant to Paragraphs 6 and 7 of the Lease, to
reflect the addition of the Expansion Premises.
2. Alterations. The entire existing Section 12 of the
Lease shall be redesignated Section 12(a) and the following shall be inserted as
Section 12(b):
(b) Tenant acknowledges that if more than two floors of the
Premises are renovated prior to the second anniversary of the
Commencement Date, significant seismic and structural upgrades to the
Building will be required. Therefore, and notwithstanding anything to
the contrary in this Lease or the schedules or exhibits to this Lease,
prior to January 15, 2002, Tenant may make alterations, additions or
improvements, including initial tenant improvements, to two full floors
of the Premises only. Tenant shall notify Landlord in writing, prior to
the Commencement Date, as to which full floors (the "Improved Floors")
Tenant will improve prior to January 15, 2002. Tenant shall keep all
other areas of the Premises (collectively, the "Unimproved Premises")
in their "as-is" condition as of the date of this Lease, and shall not
permit any alteration, addition or improvement work or preparation for
such work, including obtaining permits for such work, in or with
respect to such areas prior to January 15, 2002; provided, however,
that Tenant shall be entitled to repaint and recarpet such areas prior
to January 15, 2002, subject to Landlord's prior written consent, which
shall not be unreasonably withheld. In the event Tenant breaches its
obligations under this paragraph, without limiting the generality of
Tenant's obligations and Landlord's rights as set forth elsewhere in
this Lease, Tenant shall indemnify Landlord from and against all
losses, costs, claims, damages and expenses, including without
limitation the cost of any required upgrades to the Building, resulting
from such breach.
3. Tenant Improvements. Paragraph 1(a) of Exhibit C to
the Original Lease is amended and restated in its entirety as follows:
(a) Notwithstanding the foregoing, Tenant shall be entitled to a
one-time tenant improvement allowance (the "Tenant Improvement
Allowance") in the amount of Twenty-Five Dollars ($25.00) for each
rentable square foot of each of the Improved Floors of the Initial
Premises and Two Dollars ($2.00) for each rentable square foot of the
Unimproved Premises, to be applied toward payment of any tenant
improvement costs described below (the "Tenant Improvements"), subject
to the provisions of Section 12(b) of the Lease.
In addition, provided that Tenant has irrevocably exercised its
Extension Option, extending the term of the Lease for an additional
five (5) years and subject to the provisions of the Lease, including,
without limitation, Section 12(b), Tenant shall be entitled to an
additional one-time tenant improvement allowance of Twenty-Three
Dollars ($23.00) for each rentable square foot of the Unimproved
Premises (the "Additional Tenant Improvement Allowance") to be applied
toward the
2
<PAGE>
payment of any tenant improvement costs of the type described below
(the "Additional Tenant Improvements"). Notwithstanding the foregoing,
and without limiting the generality of the provisions of Section 12(b)
of the Lease, in no event shall any work be commenced, any permits
obtained or requested or any applications for permits submitted with
respect to the Additional Tenant Improvements prior to the second
anniversary of the Commencement Date. In all other respects, the
Additional Tenant Improvements shall be constructed and the Additional
Tenant Improvement Allowance disbursed in accordance with this
Agreement, with each reference to Tenant Improvements being deemed a
reference to Additional Tenant Improvements and each reference to
Tenant Improvement Allowance being deemed a reference to the Additional
Tenant Improvement Allowance.
In no event shall Landlord be obligated to make disbursements pursuant
to this Agreement in a total amount that exceeds the Tenant Improvement
Allowance and, if applicable, the Additional Tenant Improvement
Allowance.
4. Base Rent. Schedule 3 to the Original Lease shall be
amended and restated in its entirety as set forth on Schedule 3, attached
hereto.
5. Term. The term of the Lease, with respect to the
Expansion Premises, shall commence on the date hereof, and with respect to Suite
300 and Suite 400, shall commence on the earlier of (i) the date Tenant
commences business operations from any part of Suite 300 and/or Suite 400, or
(ii) January 15, 2000. Accordingly, the term "Commencement Date" as used in the
Lease, shall mean the date hereof, with respect to the Expansion Premises, and
the earlier of (i) the date Tenant commences business operations from any part
of Suite 300 and/or Suite 400, or (ii) January 15, 2000, with respect to Suite
300 and Suite 400. The Initial Term of the Lease for the entire Premises,
including the Expansion Premises, shall expire on January 31, 2005.
6. Security Deposit. Sections 8(b) through 8(e) of the
Original Lease are hereby deleted and are of no further force or effect. Section
8(a) shall remain in full force and effect, provided, however, that the third
sentence of Section 8(a) shall be amended and restated as follows: "If Tenant is
not in default at the expiration or termination of this Lease, Landlord shall
return to Tenant the Security Deposit or the balance thereof then held by
Landlord and not applied as provided in this Section 8(a)."
7. Temporary Premises. Section 56 of the Original Lease
and the reference to "Temporary Premises" on the first Basic Lease Information
page are hereby deleted and of no further force or effect.
8. Option to Expand. Schedule 1 to the Lease (Option to
Expand) is hereby deleted and of no further force or effect.
3
<PAGE>
9. Option to Renew. The exercise of any Extension Option
by Tenant shall be irrevocable and shall cover the entire Premises leased by
Tenant pursuant to the Lease.
10. Right of First Offer.
(a) Provided that no Event of Default has
occurred and is continuing under the Lease at the time of the exercise of any
such right or at any time thereafter until delivery of possession of the space
to Tenant, and subject to any and all rights of other tenants in the Building
with respect to such space (including renewal and extension rights and rights of
first offer, first negotiation, first refusal or other expansion rights)
existing as of the date of this Amendment, Tenant shall have a one-time right of
first offer to lease the entire sixth (6th) floor of the Building.
(b) Such right of first offer (i) may only be
exercised with respect to vacant space or space that has been previously leased
and as to which an existing tenant of the Building has elected not to extend its
lease or re-lease such space and (ii) may only be exercised with respect to all
of the space being offered by Landlord. If any space qualifying for such right
of first offer becomes available, Landlord shall offer to lease such space to
Tenant at the same rent and on the same terms that are applicable to the
Expansion Premises, provided that the tenant improvement allowance shall be
Twenty-Five Dollars ($25.00) per rentable square foot, which allowance shall
only be available if Tenant has irrevocably exercised its Extension Option.
Tenant shall have five (5) business days following receipt of Landlord's offer
with respect to any such space within which to notify Landlord in writing of its
intention to lease such space, and such notice, if given by Tenant, shall
constitute an acceptance of Landlord's offer. If Tenant exercises such right of
first offer, the space to be leased by Tenant shall be leased on the same terms
and conditions as are contained in the Lease with respect to the Expansion
Premises, and the parties shall execute an amendment to the Lease to include
such space in the Premises and otherwise to provide for the leasing of such
space. If Tenant fails so to exercise Tenant's right of first offer within such
five (5) business day period, Landlord may thereafter lease such space to other
prospective tenants.
(c) If Tenant does not lease the right of first
offer space from Landlord when it is first offered to Tenant by Landlord, then
this right of first offer shall terminate and Tenant shall have no further
rights to lease any of the right of first offer space.
(d) If not effectively exercised prior to
January 31, 2005, this right of first offer shall expire on such date,
regardless of whether Tenant has had an opportunity to exercise such right prior
to such date.
11. Subordination, Non-Disturbance and Attornment
Agreement. As provided in Section 24 of the Lease, Landlord agrees to use
commercially reasonable efforts to obtain, at Tenant's sole cost and expense, a
non-disturbance agreement from the holder of any existing encumbrance on the
Building in a form reasonably acceptable to such holder of the encumbrance;
provided, however, that the effectiveness of this Lease shall not be affected by
Landlord's failure to obtain such an agreement.
4
<PAGE>
12. Default. Section 27(iii) is amended and restated in
its entirety as follows:
"(iii) Tenant fails timely to deliver any subordination
document, estoppel certificate or financial statement requested by Landlord
within three (3) days after the expiration of the applicable time period
specified in Paragraphs 24 and 33."
13. Brokers. Tenant warrants and represents to Landlord
that in the negotiating or making of this Amendment neither Tenant nor anyone
acting on Tenant's behalf has dealt with any real estate broker or finder, other
than TRI Commercial, who might be entitled to a fee or commission for this
Amendment. Tenant agrees to indemnify and hold Landlord harmless from any claim
or claims, including costs, expenses and attorney's fees incurred by Landlord,
asserted by any broker or finder, other than TRI Commercial, for a fee or
commission other than the foregoing, based upon any dealings with or statements
made by Tenant or its representatives.
14. Ratification of Lease. The Original Lease, as
modified by this Amendment, remains in full force and effect, and Landlord and
Tenant hereby ratify the same. All references in the Original Lease to the
"Lease" shall mean the Original Lease as amended hereby. This Amendment shall be
binding upon and inure to the benefit to the parties and their respective
successors and assigns.
IN WITNESS WHEREOF, the parties hereto have executed this
Amendment as of the date and year first above written.
LANDLORD: TENANT:
300 CALIFORNIA ASSOCIATES, LLC, a THE GAP, INC., a Delaware corporation
California limited liability company
By: /s/ Michael Halper By: /s/ Lauri M. Shanahan
--------------------------------- ------------------------------------
Name: Michael Halper Name: Lauri M. Shanahan
Title: Managing Member Title: SVP General Counsel
By: ___________________________________
Name:
Title:
5
<PAGE>
EXHIBIT A
Expansion Premises
300 CALIFORNIA STREET
2ND FLOOR
[FLOOR PLAN]
6
<PAGE>
Schedule 3
Rental Adjustment Schedule
The minimum base rent provided for in Paragraph 5 above shall be adjusted as
follows:
Commencement through January 14, 2000 $ 30,492 per month (2nd floor only)
Commencement through January 14, 2000 $107,230 per month (3rd & 4th floors/optional)
January 15, 2000 through January 31, 2001 $160,591 per month
February 1, 2001 through January 31, 2002 $164,414 per month
February 1, 2002 through January 31, 2003 $168,238 per month
February 1, 2003 through January 31, 2004 $172,061 per month
February 1, 2004 through January 31, 2005 $175,885 per month
7
<PAGE>
300 CALIFORNIA STREET
OFFICE LEASE
300 CALIFORNIA ASSOCIATES, LLC, Landlord
and
buzzsaw.com, Inc., a Delaware Corporation, Tenant
Dated: September 21, 1999
<PAGE>
300 CALIFORNIA STREET
BASIC LEASE INFORMATION
LEASE PARAGRAPH
INTRODUCTORY
PARAGRAPH: DATE: September 21, 1999
LANDLORD: 300 CALIFORNIA ASSOCIATES, LLC
TENANT: buzzsaw.com, Inc., a Delaware Corporation
PARAGRAPH 1: INITIAL PREMISES: Suite 300, deemed to consist of 15,311
rentable square feet and
Suite 400, deemed to consist of 15,326 rentable square feet.
(Exhibit B).
PARAGRAPH 56: TEMPORARY PREMISES: Suite 200, deemed to consist of 15,325
rentable square feet. (Exhibit B-1).
SEE ALSO SCHEDULE 1, OPTION TO EXPAND
BUILDING: 300 CALIFORNIA STREET, San Francisco, California, deemed to
consist of 122,612 rentable square feet
PARAGRAPH 3: PROJECTED COMMENCEMENT DATE: The lease shall commence upon
substantial completion of tenant improvements or January 15,
2000, whichever comes first.
INITIAL TERM: Sixty (60) months
SEE ALSO SCHEDULE 2, OPTION TO RENEW
PARAGRAPH 5: BASE RENT: SEE SCHEDULE 3
PARAGRAPH 6:
AND PARAGRAPH 7: INITIAL TENANT'S SHARE: 24.99%
REAL ESTATE TAXES BASE YEAR: 2000
OPERATING EXPENSES BASE YEAR: 2000
PARAGRAPH 8: SECURITY DEPOSIT: $50,000 and the Letter of Credit.
PARAGRAPH 40: TENANT'S ADDRESS FOR NOTICES:
buzzsaw.com. Inc., a Delaware Corporation
300 CALIFORNIA STREET
Suite 400
San Francisco, CA 94111
WITH A COPY TO:
Autodesk Inc.
111 Mclnnis Parkway
San Rafael, CA 94903
Attn: Director of Real Estate
LANDLORD'S ADDRESS FOR NOTICES:
300 CALIFORNIA ASSOCIATES, LLC
1000 Sansome Street, Suite 380
San Francisco, CA 941111
Attn: Michael Halper
<PAGE>
PARAGRAPH 46: Tenant's Broker: Colliers International.
The provisions of the Lease identified above in the margin are those provisions
where references to particular Basic Lease Information appear. Each such
reference shall incorporate the applicable Basic Lease Information.
LANDLORD: 300 CALIFORNIA ASSOCIATES, LLC
By: /s/ Michael Halper
----------------------------------------------------
NAME: Michael Halper
TITLE: Manager
TENANT: buzzsaw.com, Inc., a Delaware Corporation
By: /s/ Carl Bass
---------------------------------------------------
NAME: Carl Bass
TITLE: President & CEO
<PAGE>
300 CALIFORNIA STREET
OFFICE LEASE
This Lease, made this 21st day of September 1999, is by and between 300
CALIFORNIA ASSOCIATES, LLC ("Landlord"), a California limited liability
company, and buzzsaw.com, Inc., a Delaware Corporation ("Tenant").
WITNESSETH:
1. PREMISES.
Landlord hereby leases to Tenant and Tenant hereby hires from Landlord
certain premises consisting of a portion of that certain building (the
"Building") described in the Basic Lease Information. The Building is (the
"Building") owned by Landlord and located on certain land in the City and County
of San Francisco, which land is more particularly described in Exhibit A
attached hereto. The premises leased to Tenant hereunder (the "Premises") are or
shall be commonly identified by the Suite Number, if any, appearing in the Basic
Lease Information and are generally depicted in the preliminary floor plan
attached hereto as Exhibit B
Said letting and hiring is upon and subject to the terms, covenants,
and conditions herein set forth and Tenant covenants as a material part of the
consideration for this Lease to keep and perform each and all of said terms,
covenants and conditions by it to be kept and performed.
2. PURPOSE
The Premises shall be used for general office purposes and for no other
use or purpose without the prior written consent of Landlord, which consent may
be granted or denied in Landlord's sole discretion.
3. TERM
The term of this Lease shall commence on January 15, 2000 (the
"Projected Commencement Date"), or upon substantial completion of Tenant
Improvements, whichever occurs first. Landlord shall deliver possession of the
Premises in accordance with the Exhibit C attached hereto. The term shall
continue as set forth in the Basic Lease Information unless sooner terminated
pursuant to the terms hereof. If the Commencement Date is other than the first
day of a calendar month, the Initial Term shall also include the remainder of
the partial calendar month in which the Commencement Date occurs.
4. POSSESSION.
Landlord shall use reasonable efforts to deliver possession of the
Premises to Tenant on or before the Projected Commencement Date specified in the
Basic Lease Information. If Landlord, for any reason whatsoever, cannot deliver
possession of the Premises to Tenant on the Projected Commencement Date, this
Lease shall not be void or voidable, nor shall Landlord be liable to Tenant for
any loss or damage resulting therefrom; provided, however, that if Landlord does
not deliver the Premises to Tenant on or before that date which is 90 days after
the Projected Commencement Date, as such date may be extended on account of
Tenant Delays, casualty, inclement weather, labor disputes, shortage of
materials, or any other matters beyond the reasonable control of Landlord,
Tenant shall have the right to terminate this Lease by notifying Landlord
thereof at any time before Landlord delivers possession of the Premises to
Tenant in the condition required hereby.
Within 10 days after written request from Landlord, Tenant shall
execute and return to Landlord an acknowledgment of the Commencement Date and
such other information as Landlord shall reasonably request.
Tenant confirms and agrees that it is leasing the Premises in their "as
is" state and condition that it has, and will have, reviewed and fully satisfied
itself as to the adequacy of the Premises, and that Landlord shall have no
obligation whatsoever to make or pay for any improvements or renovation in the
Premises to prepare the same for Tenant's occupancy, except as expressly
provided elsewhere in this Lease. By taking possession of the Premises. Tenant
shall be deemed to have accepted the Premises in good working order, condition,
and repair, in compliance with all laws, statutes, ordinances and governmental
rules, regulations or requirements, and otherwise in the condition in which
Landlord was required to deliver them to Tenant.
<PAGE>
Notwithstanding the foregoing, Tenant may enter the Premises, at all
times, at its own risk, subsequent to the mutual execution and delivery of this
Lease, for the purpose of constructing tenant improvements, or to install
fixtures, supplies, inventory and other properly in the Premises, the Premises
prior to the Commencement Date. Pre-term possession will be subject to the
availability of the Premises and subject to the rights of prior tenants. During
the course of any such pre-term possession, all terms and conditions of this
Lease, except rent and commencement, shall apply.
5. RENT
(a) BASE RENT. On or before the first day of each calendar month
during the term hereof Tenant shall pay to Landlord, as minimum monthly rent for
the Premises, the Base Rent set forth in the Basic Lease Information. The
minimum monthly rent for any partial month shall be prorated at the rate of 1/30
of the minimum monthly rent per day. Simultaneously with the execution of this
Lease, Tenant shall pay to Landlord the Base Rent for the first full calendar
month for which Base Rent is payable.
The initial Base Rent shall not be adjusted during the term of this
Lease.
(b) GENERAL PROVISIONS. Rent shall be paid by Tenant to Landlord,
in advance, without deduction or offset, in lawful money of the United States of
America to 300 CALIFORNIA ASSOCIATES, LLC, 1000 Sansome Street, San Francisco,
CA 94111 or to such other person or at such other place as Landlord may from
time to time designate in writing. Payments made by check must be drawn either
on a California financial institution or on a financial institution that is a
member of the federal reserve system.
All charges and other amounts of any kind payable by Tenant to Landlord
pursuant to this Lease shall be deemed additional rent. Landlord shall have the
same remedies for default in the payment of additional rent as for default in
the payment of Base Rent. Base Rent and additional rent are collectively
sometimes hereinafter referred to as rent.
No security or guaranty which may now or hereafter be furnished
Landlord for the payment of the rent herein reserved or for performance by
Tenant of the other covenants or conditions of this Lease shall in any way be a
bar or defense to any action in unlawful detainer, or for the recovery of the
Premises, or to any action which Landlord may at any time commence for a breach
of any of the covenants or conditions of this Lease.
6. TAXES
Tenant shall pay to Landlord an amount equal to Tenant's Share of any
increase in Taxes above the amount of Taxes levied and assessed for the fiscal
tax year specified in the Basic Lease Information. The total amounts due
hereunder shall be paid to Landlord on or before the date full payment of the
applicable Taxes are due or, if payable in installments, the date payment of the
first installment of such Taxes are due. Notwithstanding anything in the
foregoing to the contrary, at Landlord's sole election, at any time or times
Landlord may estimate in advance the amount of Taxes for any next ensuing
12-month period and, upon Landlord's written notice, Tenant shall pay to
Landlord on the first day of each calendar month of such 12-month period, with
Base Rent as provided for in Paragraph 5 hereof, one-twelfth (1/12th) of
Tenant's Share of such estimated Taxes. If during any such 12-month period
Landlord shall revise its estimate of Tenant's share of said taxes for such
12-month period, Landlord shall advise Tenant, with thirty (30) days prior
written notice and with no more than one revision per year. Tenant shall pay all
additional Taxes on such revised estimate for the portion of the 12-month period
already elapsed and shall commence paying the additional Taxes based on such
revised estimate for the remainder of such 12-month period. Upon conclusion of
such 12-month period. Landlord shall deliver to Tenant a statement of Tenant's
Share of the actual Taxes for such period and if the amounts theretofore paid by
Tenant on account of Landlord's estimate shall exceed the amount of Tenant's
Share of such actual Taxes, Landlord shall pay to Tenant the amount of such
excess within 15 days after date of delivery of such statement to Tenant, and if
the amounts theretofore paid by Tenant on account of Landlord's estimate shall
be less than the amount of Tenant's Share of such actual Taxes. Tenant shall pay
to Landlord the amount of such deficiency within 15 days after date of delivery
of such statement to Tenant. Landlord, at its election, may estimate Taxes on a
calendar-year basis, in which event Tenant shall pay one- twelfth (1/12th) of
such estimated Taxes as hereinbefore provided and, if this Lease shall commence
on a day other than the first day of a calendar year and/or shall end on a day
other than the last day of a calendar year. Tenant's Share of such Taxes, as
applicable to such first and last calendar years of the term hereof, shall be
computed on a pro rata basis.
<PAGE>
(???) assessments, and reassessments, special or otherwise, foreseen or
unforeseen, levied or assessed upon the Building, including, without limitation,
any increases in taxes resulting from any change in ownership of the Building
or any portion thereof and any taxes levied and assessed in lieu of or in
substitution for existing or additional real or personal property taxes as well
as any form of assessment, license, fee, levy, penalty, or tax (other than
inheritance or estate taxes), imposed by any authority having the direct or
indirect power to tax, including any city, county, state, or federal
government, or any school, agricultural, lighting, drainage, or other
improvement district, as against any legal or equitable interest of Landlord in
the Premises or in the real property of which the Premises are a part, or as
against Landlord's right to rent or other income therefrom, or as against
Landlord's business of leasing the Premises. In addition, Tenant shall pay one
hundred percent (100%) of any increase in taxes or assessments of whatsoever
kind and nature (including, without limitation, all personal property taxes)
caused by improvements or installations made by Tenant to the Premises at any
time during the term hereof, provided that Tenant shall not be responsible for
increases in taxes or assessments, except as a part of Tenant's Share of the
increase in Taxes, to the extent such increases result from ordinary tenant
improvements. In the event the Building is reassessed prior to the fifth (5th)
anniversary of the Commencement Date and such reassessment is solely a result of
the tenant improvements made to the Building during such period. "TAXES" shall
not include the amount by which the real property taxes on the Building are
increased as a result of such reassessment. From and after the fifth (5th)
anniversary of the Commencement Date, the previous sentence shall be of no
further force or effect.
For purposes of this Paragraph 6, "Tenant's Share" shall be in the same
proportion that the rentable square footage of the Premises bears from time to
time to the aggregate rentable square footage of the Building. At the inception
of this Lease Tenant's Share for purposes of this Paragraph 6 shall be that
percentage specified as Tenant's Share in the Basic Lease Information (which may
be adjusted from time to time by Landlord, upon written notice to Tenant, in
event of changes in the aggregate rentable building square footage in the
Building or Tenant's leasing of additional space hereunder).
7. OPERATING EXPENSES.
(a) PAYMENT OF OPERATING EXPENSES. Tenant shall pay to Landlord,
at the times hereinafter set forth, an amount equal to Tenant's Share of any
increase in Operating Expenses for the Building above the Operating Expenses for
the Building for the Base Year specified in the Basic Lease Information.
Statements of the amount of Operating Expenses for the preceding calendar year
and the amount of such increase payable by Tenant shall be determined by
Landlord and shall be payable by Tenant on demand by Landlord.
Notwithstanding the foregoing, at Landlord's sole election, at any time
or times Landlord may estimate in advance Landlord's Operating Expenses for any
next ensuing 12-month period and, upon Landlord's written notice. Tenant shall
pay to Landlord on the first day of each calendar month of such 12-month period,
with Base Rent as provided for in Paragraph 5 hereof, one-twelfth (1/12th) of
Tenant's Share of such estimated Operating Expenses. If during any such 12-month
period Landlord shall revise its estimate of Tenant's Share of said expenses for
such 12-month period. Landlord shall advise Tenant, with thirty (30) days prior
written notice and with no more than one revision per year, Tenant shall pay all
additional Operating Expenses on such revised estimate for the portion of the
12-month period already elapsed and shall commence paying the additional
Operating Expenses based on such revised estimate for the remainder of such 12-
month period. Upon conclusion of such 12-month period, Landlord shall deliver to
Tenant an itemized statement in reasonable detail of Tenant's Share of
Landlord's actual Operating Expenses for such period and, if the amounts
theretofore paid by Tenant on account of Landlord's estimate shall exceed the
amount of Tenant's Share of such actual costs. Landlord shall pay to Tenant the
amount of such excess within 15 days after date of delivery of such statement to
Tenant, and, if the amounts theretofore paid by Tenant on account of Landlord's
estimate shall be less than the amount of Tenant's Share of such actual costs,
Tenant shall pay to Landlord the amount of such deficiency within 15 days after
date of delivery of such statement to Tenant. Landlord, at its election, may
estimate Operating Expenses on a calendar-year basis, in which event if this
Lease shall commence on a day other than the first day of a calendar year and/or
shall end on a day other than the last day of a calendar year, Tenant's Share
of such estimated costs, as applicable to such first and last calendar years of
the term hereof, shall be computed on a pro rata basis.
For purposes of this Paragraph 7. "Tenant's Share" shall be in the same
proportion that the rentable square footage of the Premises bears from time to
time to the aggregate rentable square footage of the Building. At the inception
of this Lease Tenant's Share for purposes of this Paragraph 7 shall be that
percentage specified as Tenant's Share in the Basic Lease
<PAGE>
information which may be adujsted from time to time by Landlord, upon written
notice to Tenant, in event of changes in the aggregate rentable building square
footage in the Building or Tenant's leasing of additional space hereunder).
(b) OPERATING COSTS DEFINED. As used in this Paragraph 7.
"Operating Expenses" shall mean any and all sums expended by Landlord
directly or indirectly for the maintenance, management, and operation of the
Building, including, without limiting the foregoing; wages, salaries, employee
benefits, and payroll burden of personnel engaged in management, operation and
maintenance of the Building; Building management office rent or rental value for
space in the Building used for the purposes of management of the Building,
provided that to the extent such space is utilized for a management office
serving buildings other than the Building, such rent or rental value shall be
equitably allocated among the Building and such other buildings; costs of power,
heat, light, steam, air conditioning, gas, water, garbage, sewage and waste
disposal and other utilities; costs of equipment, tools, materials and supplies;
all insurance premiums and deductibles; license, permit and inspection fees;
amounts paid under maintenance contracts and for general services; depreciation
on, or rental of, personal property; reasonable replacement reserves; costs of
repairing or replacement of debris receptacles; landscaping costs including
maintenance, watering and the replacement or addition of plants; cost of
directional signs, other markers, and car stops; all non-capital costs of
keeping the exterior walls, foundations, down spouts, roofs, plumbing, sewage
systems, electrical, and heating and air conditioning systems in the Building in
good order, condition and repair; any and all parking charges, surcharges or any
other costs levied by any governmental authority on the Building, or the rents
generated therefrom, or the utilities consumed therein or similar matters;
reasonable management fees; and the cost (hereinafter "capital cost") of any
capital improvements made to the Building by Landlord that (i) reduce Operating
Expenses or that reduce or conserve the amount of utilities consumed, (ii) are
required under any Legal Requirements that were not applicable to the Building
at the time this Lease was entered into, or (iii) are required to keep the
Building and the common areas therein, in good order, condition, and repair,
each of the foregoing capital costs to be amortized over such reasonable period
as Landlord shall determine together with interest on the unamortized balance at
the rate of ten percent (10%) per year or such higher rate as may have been paid
by Landlord on funds borrowed for the purpose of constructing such capital
improvements. Tenant expressly acknowledges that if Landlord, from time to time,
elects to provide security services. Landlord shall not be deemed to have
warranted the efficiency of such security personnel, service, procedures or
equipment and Landlord shall not be liable in any manner for the failure of any
such security personnel, services, procedures or equipment to prevent or
control, or apprehend anyone suspected of personal injury or property damage in,
on, or around the Property.
Operating Expenses shall not include (i) capital improvements (except
as otherwise provided above); (ii) costs of special services rendered to
individual tenants (including Tenant) for which a special charge is made; (iii)
interest and principal payments on loans or indebtedness secured by the Building
and any rent paid on any ground or underlying lease; (iv) costs of improvements
for Tenant or other tenants of the Building: (v) costs of services or other
benefits of a type which are not available to Tenant but which are available to
other tenants or occupants, and costs for which Landlord is reimbursed by other
tenants of the Building other than through payment of tenants' shares of
increases in Operating Costs and Taxes; (vi) advertising, leasing commissions,
attorneys' fees and other expenses incurred in connection with leasing space in
the Building or enforcing such leases; (vii) depreciation or amortization, other
than as specifically enumerated in the definition of Operating Costs above;
(viii) costs for which Landlord actually receives reimbursement from parties
other than current or former tenants of the Building, or (ix) insurance
deductibles to the extent they exceed the higher of (1) $50,000 or (2) such
amounts as are commercially reasonable with respect to office buildings
equivalent to the Building located in the financial district of San Francisco.
(c) ADDITIONAL SERVICES. If, in Landlord's reasonable
determination, Tenant's demand for or use of the common area facilities and
services for the Building exceeds the use of such facilities and services that
is typical, normal and customary for the Building, Landlord may separately
charge Tenant for Landlord's additional maintenance or service costs related
thereto, which additional charges shall be due and payable within ten (10) days
after demand therefor.
8. SECURITY DEPOSIT/LETTER OF CREDIT
(a) Simultaneously with the execution of this Lease. Tenant has deposited
with Landlord the sum specified as the Security Deposit in the Basic Lease
Information (said sum, as may be augmented as hereinafter provided, is referred
to herein as the "Security Deposit"). The Security Deposit shall be held by
Landlord as security for the faithful performance by Tenant of all the terms,
covenants and conditions of this Lease. Provided that at the end of the term
<PAGE>
Tenant shall have delivered up the Premises to Landlord, broom clean, and in the
same condition as at the Commencement Date, reasonable wear excepted, the
Security Deposit or portion thereof then held by Landlord after all applications
on account of Tenanat's details, shall be returned to Tenant. No interest shall
be payable thereon and Landlord shall not be required to keep said sum in a
separate account. If Tenant fails to pay any rent or other charges due
hereunder, or otherwise defaults with respect to any provision of this Lease.
landlord may at its option apply or retain all or any portion of the Security
Deposit for the payment of any rent or other charge in default or the payment of
any other sum to which Landlord may become obligated by Tenant's default, or to
compensate Landlord for any loss damage which Landlord, may suffer thereby. If
Landlord so uses or applies all or any portion of the Security Deposit, then
within 10 days after demand therefor, Tenant shall deposit cash with Landlord in
an amount sufficient to restore the Security Deposit to the full amount thereof,
and Tenant's failure to do so shall be a material breach of this Lease.
Landlord's application or retention of the Security Deposit shall not constitute
a waiver of Tenant's default to the extent that the Security Deposit does not
fully compensate Landlord for all losses or damages incurred by Landlord in
connection with such default and shall not prejudice any other rights or
remedies available to Landlord under this Lease or by law.
(b) Tenant shall deliver to Landlord, upon execution and delivery of this
Lease a clean, unconditional, irrevocable, transferable letter of credit (the
"Letter of Credit"), naming Landlord as beneficiary, in the form of Exhibit E
to the Lease, and issued by a financial institution ("Issuer"), satisfactory to
Landlord. The amount available to be drawn under the Letter of Credit shall be
Six Million Six Hundred and Ninety Thousand One Hundred and Sixty Dollars
($6,690,160). So long as there is no uncured Event of Default then existing
under the Lease, the amount remaining available to be drawn under the Letter of
Credit shall remain the same over the term, so the amount available to be drawn
under the Letter of Credit shall be as follows:
Months (counting from the Commencement Date through applicable Minimum Amount Available Under
monthly anniversary of Commencement Date) the Letter of Credit
-------------------------------------------------------------- ------------------------------
01-12 $ 6,690,160
13-24 $ 5,403,400
25-36 $ 4,086,004
37-48 $ 2,737,972
49-60 $ 1,359,304
The foregoing reductions in the face amount of the Letter of Credit shall be
accomplished through the delivery of substitute Letters of Credit. Without
limiting the generality of the foregoing, no Letter of Credit shall provide for
any reduction in its face value other than those resulting from draws on such
Letter of Credit.
(c) Landlord shall be entitled to draw any portion or all of the amount
under the Letter of Credit if either (i) an Event of Default occurs under the
Lease, or (ii) Tenant does not deliver to Landlord a replacement letter of
credit from Issuer or another financial institution satisfactory to Landlord in
the amount and form of the initial Letter of Credit no later than one month
before the expiration date of the then existing Letter of Credit, or (iii) if
upon a proposed sale or lease of the Building, Tenant does not deliver to any
new landlord a replacement Letter of Credit pursuant to the provisions of (e)
below. The Letter of Credit shall provide for partial draws by Landlord in
accordance with this paragraph. Any such draws when made shall be deemed applied
to the amounts owing under this Lease (in such order as Landlord may elect). In
the event of any draw under the Letter of Credit, Tenant shall within five (5)
days after demand therefor from Landlord, cause the amount remaining available
to be drawn under the Letter of Credit to be increased by an amount equal to the
amount drawn.
(d) Tenant shall not assign or encumber or attempt to assign or encumber
the Letter of Credit and neither Landlord nor its successors or assigns shall be
bound by any such assignment or encumbrance or attempted assignment or
encumbrance.
(e) In the event of a sale or other transfer of the Building. Tenant will,
if requested by Landlord in writing, at its sole cost and expense within ten
(10) business days after receiving such request, cause the issuing bank of the
Letter of Credit to consent to the assignment or to issue a substitute letter
of credit on identical terms to the Letter of Credit, other than the stated
beneficiary, from the same issuing bank or, if the transferee so requests, from
another bank acceptable to such transferee in its reasonable discretion, naming
such transferee as the beneficiary thereof, upon delivery by Landlord of the
then outstanding letter of Credit
<PAGE>
9. USES PROHIBITED
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
rate of or affect any fire or other insurance upon the Building or any of its
contents or cause a cancellation of any insurance policy covering said Building
or its contents. Tenant shall not do or permit anything to be done in or about
the Premises which will obstruct or interfere with the rights of other tenants
or occupants of the Building or injure or materially annoy them, or use or allow
the Premises to be used for any residential, immoral, unlawful or objectionable
purpose, nor shall Tenant cause, maintain or permit any nuisance in, on or about
the Premises. No cooking devices or other odor causing devices, space heaters,
loudspeakers or other similar device, system or apparatus which can be heard or
experienced outside the Premises shall, without the prior written approval of
Landlord, be used in or at the Premises. Tenant shall not commit or suffer to be
committed any waste in or upon the Premises.
10. COMPLIANCE WITH LAWS.
Tenant shall not use or permit anything to be done in or about the
Premises which will in any way conflict with any law, statute, ordinance or
governmental rule, regulation or requirement now in force or which may hereafter
be enacted or promulgated. Tenant, at its sole cost and expense, shall promptly
comply with all laws, statutes, ordinances and governmental rules, regulations
or requirements now in force or which may hereafter be in force and with the
requirements of any board of fire underwriters or other similar body now or
hereafter constituted relating to or affecting the condition, use of occupancy
of the Premises, excluding structural changes not related to or affected by
Tenant's improvements or acts. The judgment of any court of competent
jurisdiction or the admission of Tenant in an action against Tenant, whether
Landlord is a party thereto or not, that Tenant has violated any law, statute,
ordinance or governmental rule, regulation or requirement shall be conclusive of
that fact as between Landlord and Tenant.
11. NO USE OF HAZARDOUS MATERIALS PERMITTED
Tenant will not use, generate, manufacture, produce, store, release,
discharge, or dispose of, on, under or about the Premises or the Building or
transport to or from the Premises or the Building any Hazardous Materials (as
defined below) or allow its employees, agents, contractors, invitees or any
other person or entity to do so, except that Tenant shall be permitted to use in
the Premises reasonable and customary quantities of ordinary office products,
janitorial materials and cleaning supplies such as inks, household cleansers,
and the like. Tenant shall keep and maintain the Premises in compliance with,
and shall not cause or permit the Premises or the Building to be in violation of
any Environmental Laws (as defined below).
Tenant shall protect, defend, indemnify and hold harmless Landlord, the
holder(s) of any mortgage or deed of trust encumbering the Building, and their
respective partner, agents, employees, officers, directors, and shareholders,
from and against any and all liabilities, losses, damages, costs. and expenses
(including attorneys' and consultants' fees and costs) directly or indirectly
arising out of the presence, due to Tenant (or its employees, agents,
contractors, invitees, or any person permitted or suffered by Tenant to use or
occupy the Premises), of any Hazardous Materials in, under or about the
Premises, the Building or the Building, whether resulting from Tenant's
activities prior to or after the Commencement Date. This indemnity shall survive
the expiration or termination of this Lease. Landlord shall have the right to
join and participate in, as a party if it so elects, any legal proceedings or
actions affecting the Premises, the Building or the Building initiated in
connection with any Environmental Law violated by Tenant and shall have its
attorneys' and consultants' fees in connection therewith paid by Tenant.
As used herein, the term "Hazardous Materials" means any hazardous or
toxic substance, material or waste which is or becomes regulated by any local
governmental authority, the State of California or the United States Government,
or is or becomes classified as hazardous or toxic under federal, state, or local
laws or regulations. "Hazardous Materials" shall also include, without
limitation, petroleum, asbestos, polychlorinated biphenyls, flammable explosives
and radioactive materials.
"Environmental Laws" shall mean any federal, state or local law.
statute, ordinance, or regulation now or hereafter pertaining to health,
industrial hygiene, or the environmental conditions on, under or about the
Premises, or the Building, including, without limitation, the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA") as
amended, 42 U.S.C. Section 9601 et seq., And the Resource Conservation and
Recovery Act of 1976 ("RCRA"), 42 U.S.C. Sections 6901 et seq.
<PAGE>
12. ALTERATIONS.
Tenant shall not make or suffer to be made any alterations, additions
or improvements to or of the Premises or any part thereof without the prior
written consent of Landlord which consent shall not be unreasonably withheld,
provided that if the alterations, additions or improvements involve or directly
or substantially affect the Building systems or structure such consent may be
withheld in Landlord's sole discretion. Notwithstanding the foregoing, if the
total cost of an alteration, addition or improvement does not exceed Fifty
Thousand Dollars ($50,000), Landlord's consent shall not be required, provided
that such alteration, addition or improvement is not visible from outside of the
Premises and does not involve or otherwise directly or substantially affect the
Building systems or structure and is otherwise performed in accordance with the
provisions of this Paragraph 12. Any alterations, additions, or improvements to
Premises, including without limitation any partitions, movable or otherwise, and
all carpeting, shall at once become a part of the realty and belong to Landlord.
Movable furniture, equipment and trade fixtures shall remain the property of
Tenant. If Landlord consents to the making of any alterations, additions or
improvements to the Premises by Tenant, the same shall be made by Tenant at
Tenant's sole cost and expense and any contractor or person selected by Tenant
to make the same must first be approved of in writing by Landlord. If Tenant
requests in writing at the time it requests approval of an alteration, addition
or improvement (or at anytime with respect to alterations, additions and
improvements not requiring Landlord's consent) that Landlord notify Tenant
whether it will require such alteration, addition or improvement to be removed
at the expiration or termination of the Term and if Landlord approves such
alteration, addition or improvement, Landlord shall so notify Tenant at the time
it approves such alteration, addition or improvement (or, in the case of
alterations, additions or improvements not requiring Landlord's consent, within
ten (10) business days after Landlord's receipt of such request). Upon the
expiration or sooner termination of the term. Tenant, upon demand by Landlord,
at Tenant's sole cost and expense, forthwith and with all due diligence shall
remove any alterations, additions or improvements made by Tenant, other than
those that Landlord has notified Tenant pursuant to the terms of the preceding
sentence that Tenant is not required to remove and other than typical office
improvements that are generally consistent with Building standards, and Tenant,
forthwith and with all due diligence, at its sole cost and expense, shall repair
any damage to the Premises caused by such removal. Tenant's obligation to remove
any alterations, additions, improvements, fixtures and/or personal property and
to repair any damage from such removal shall survive the termination of this
Lease.
Tenant shall reimburse Landlord upon demand for any reasonable expenses
incurred by Landlord in connection with any alterations, additions or
improvements made by Tenant, including reasonable fees charged by Landlord's
contractors or consultants to review plans and specifications prepared by Tenant
and to update the existing as-built plans and specifications of the Building to
reflect the Alterations.
Construction of the alterations, additions, or improvements shall be
completed in accordance with drawings and specifications approved in advance in
writing by Landlord, shall be carried out in a good and workmanlike manner, and
shall comply with all applicable laws, statutes, ordinances and governmental
rules, regulations and requirements.
13. REPAIR.
(a.) TENANT'S OBLIGATION. Tenant, at Tenant's sole cost and
expense, shall keep the Premises and every part thereof in good condition and
repair, ordinary wear and tear and damage caused by act of God or other casualty
excepted. Tenant hereby waives all rights to make repairs at the expense of the
Landlord as provided by law, statute or ordinance now or hereafter in effect.
Upon the expiration or sooner termination of the term hereof, Tenant shall
surrender the Premises to Landlord in the same condition as when received,
ordinary wear and tear and damage by act of God or other casualty excepted. It
is specifically understood and agreed that Landlord has no obligation and has
made no promises to alter, remodel, improve, repair, decorate or paint the
Premises or any part thereof and that no representations respecting the
condition of the Premises, the Building or the Building have been made by
Landlord to Tenant except as specifically set forth in this Lease.
Tenant shall pay upon demand the entire cost of repairing any damage to
any portion of the Premises, the Building or the Building caused by the
negligence or willful misconduct of Tenant or its agents, employees,
contractors, or invitees, or by Tenant's failure to comply with the terms of
this Lease, except to the extent such damage is covered by any insurance
maintained by Landlord on the Building.
(b) LANDLORD'S OBLIGATION. Landlord shall maintain or cause to be
maintained in reasonably good order, condition and repair. the structural
portions of the roof, foundations, floors
<PAGE>
(???) common areas of the Building, such as elevators, stairs, corridors and
restrooms: provided, however, that Tenant shall pay the cost of repairs For any
damage occasioned by Tenant's use of the Premises or the Building or any act or
omission of Tenant or Tenant's employees, contractors, agents, or invitees, to
the extent (if any) not covered by Landlord's property insurance. Landlord shall
be under no obligation to inspect the Premises. Tenant shall promptly report in
writing to Landlord any defective condition known to Tenant which Landlord is
required to repair.
14. ABANDONMENT.
Tenant shall not abandon the Premises at any time during the term
hereof, and if Tenant shall abandon or surrender the Premises or be
dispossessed by process of law, or otherwise, any personal property belonging
to Tenant and left on the Premises shall be deemed to be abandoned, at the
option of Landlord.
15. LIENS.
Tenant shall keep the Premises and the Building and the land upon which
the Building is situated free from any liens arising out of any work performed,
materials furnished or obligations incurred by Tenant. Tenant shall in the event
of the filing of any such lien, post any bond required to release the Premises
therefrom. Should Tenant fail to remove any such lien within five (5) business
days after notice to do so from Landlord, Landlord may, in addition to any other
remedies, record a bond pursuant to California Civil Code Section 3143 and all
amounts incurred by Landlord in so doing shall become immediately due and
payable by Tenant to Landlord as additional rent. Landlord shall have the right
to post and keep posted on the Premises any notices that may be provided by law
or which Landlord may deem to be proper for the protection of Landlord, the
Premises and the Building from such liens.
16. ASSIGNMENT AND SUBLETTING.
(a) LANDLORD'S CONSENT. Landlord's and Tenant's agreement with
regard to Tenant's right to transfer all or part of its interest in the Premises
is as expressly set forth in this Paragraph 16. Except upon Landlord's prior
written consent, which consent shall not (subject to Landlord's rights under
Paragraph 16 (b), below) be unreasonably withheld, delayed or conditioned,
neither this Lease nor all or any part of the leasehold interest created hereby
shall, directly or indirectly, voluntarily or involuntarily, by operation of law
or otherwise, be assigned, mortgaged, pledged, encumbered or otherwise
transferred by Tenant or Tenant's legal representatives or successors in
interest (collectively an "assignment") and neither the Premises nor any part
thereof shall be sublet or be used or occupied for any purpose by anyone other
than Tenant (collectively, a "sublease"). Tenant agrees that any instrument by
which Tenant assigns or sublets all or any portion of the Premises shall
expressly provide that the subtenant or assignee may not further assign or
sublet the assigned or sublet space without Landlord's prior written consent and
that the assignee or subtenant will comply with all of the provisions of this
Lease and that Landlord may enforce the Lease provisions directly against such
assignee or subtenant. Any assignment or subletting without Landlord's prior
written consent shall, at Landlord's option, be void and shall constitute an
Event of Default entitling Landlord to terminate this Lease and to exercise all
other remedies provided in Paragraph 27 of this Lease.
If Landlord approves of an assignment or subletting hereunder and this
Lease contains any renewal options, expansion options, rights of first refusal,
rights of first negotiation or any other rights or options pertaining to
additional space in the Building, such rights and/or options shall not run to
the subtenant or assignee, it being agreed by the parties hereto that any such,
rights and options are personal to Tenant named herein and may not be
transferred.
In no event shall Tenant assign this Lease or sublet the Premises or
any portion thereof to any then existing tenant of said Building, without
Landlord's consent, which consent may be withheld in Landlord's sole discretion.
Tenant shall pay Landlord's reasonable costs incurred in connection
with Tenant's request to assign this Lease or sublet the Premises, regardless
whether or not the Landlord consents to the proposed transfer.
If Tenant is a corporation or a partnership, the transfer (as a
consequence of a single transaction or any number of separate transactions) of
fifty percent (50%) or more of the beneficial ownership interest of the voting
stock of Tenant issued and outstanding as of the date hereof or of the
partnership interests in Tenant, as the case may be, shall not constitute an
assignment for which Landlord's consent is required as provided in this
Paragraph 16. provided, however, that if Tenant is a publicly traded
corporation, transfers of Tenant's stock through a nationally recognized stock
exchange, including an initial public offering of Tenant's stock, shall
<PAGE>
not constitute an assignment requiring Landlord's consent in addition.
Tenant may assign or sublet this Lease, without Landlord's consent, to any
corporation or other entity which controls, is controlled by, or is under common
control with Tenant, or to any corporation or other entity resulting from a
merger, reorganization or consolidation with Tenant, or to any person or entity
which acquires a controlling interest in Tenant's stock or substantially all of
the assets of Tenant as a going concern (collectively, an "AFFILIATE"), provided
that, as to an assignment to an Affiliate, the Affiliate assumes in writing all
of Tenant's remaining obligations under this Lease and that Tenant gives
Landlord such reasonable information as Landlord shall reasonably request
regarding the Affiliate.
(b) PROCEDURE. If Tenant desires to assign this Lease or any
interest therein or sublet all or part of the Premises (each hereinafter a
"transfer"), Tenant shall give Landlord written notice thereof designating the
space proposed to be transferred and the terms proposed. Landlord shall have the
prior right and option (to be exercised by written notice to Tenant given within
thirty (30) business days after receipt of Tenant's notice) to do any of the
following:
(1) Landlord may terminate this Lease, or in the case of a
sublease of less than all of the Premises, terminate this Lease as to that part
of the Premises proposed to be so sublet, either (i) on the condition that the
proposed transferee immediately enter into a direct lease of the Premises with
Landlord (or, in the case of a partial sublease, a lease of the portion proposed
to be so sublet) on the same terms and conditions contained in Tenant's notice,
or (ii) so that Landlord is thereafter free to lease the Premises (or. in the
case of a partial sublease, the portion proposed to be so sublet) to whomever it
pleases on whatever terms are acceptable to Landlord. In the event Landlord
elects to so terminate this Lease, then if such termination is conditioned upon
the execution of a lease between Landlord and the proposed transferee. Tenant's
obligations under this Lease shall not be terminated until such transferee
executes a new lease with Landlord, enters into possession, and commences the
payment of rent. If Landlord elects simply to terminate this Lease (or, in the
case of a partial sublease, to terminate this Lease as to the portion to be so
sublet), the Lease shall so terminate in its entirely'(or as to the space to be
so sublet) fifteen (15) days after Landlord has notified Tenant in writing of
such election. Upon such termination, Tenant shall be released from any further
obligation accruing under this Lease after the date of such termination if it is
terminated in its entirety, or shall be released from any further obligation
accruing under the Lease after the date of such termination with respect to the
space proposed to be sublet in the case of a proposed partial sublease. In the
case of a partial termination of the Lease, the Base Rent and Tenant's Share of
Taxes and Operating Costs shall be reduced to an amount which bears the same
relationship to the original amount thereof as the rentable area of that part of
the Premises which remains subject to the Lease bears to the original rentable
area of the Premises. Landlord and Tenant shall execute a cancellation and
release with respect to the Lease to effect such termination. Notwithstanding
the foregoing. Tenant may sublease up to an aggregate of 10,000 rentable square
feet of the Premises for a term of no more than one year, including any renewals
or extensions of such term, without triggering Landlord's termination right
hereunder. In the event the term of such a sublease is extended or renewed such
that the aggregate term exceeds one year. Landlord shall be entitled to exercise
its right of termination hereunder upon such renewal or extension.
(2) In the event of any proposed subletting, regardless of whether
the term is for more than or less than one year or involves more than or less
than 10,000 square feet of the Premises, Landlord may elect to sublet such space
from Tenant at the rental and other terms set forth in Tenant's notice to
Landlord setting forth the proposed terms of such subletting, in which event,
Landlord shall have the further right to sublet to on such terms and conditions
as it may desire.
(3) Landlord may elect to permit Tenant to assign the Lease or
sublease such part of the Premises, in which event Tenant may do so, but without
being released of its liability for the performance of all its obligations under
the Lease.
(c) DOCUMENTATION. Without limiting any other conditions stated in
this Paragraph 16, no permitted subletting by Tenant shall be effective until
there has been delivered to Landlord a counterpart of the sublease in which the
subtenant agrees to be and remain jointly and severally liable with Tenant for
the payment of rent pertaining to the sublet space and for the performance of
all of the terms and provisions of this Lease: provided, however, that the
subtenant shall be liable to Landlord for rent only in the amount set forth in
the sublease. Without limiting any other conditions stated in this Paragraph 16,
no permitted assignment shall be effective unless and until there has been
delivered to Landlord a counterpart of the assignment in which the assignee
assumes all of Tenant's obligations under this Lease arising on or after the
date of the assignment. The failure or refusal of a subtenant or assignee to
<PAGE>
(???) liability as set forth above.
17. INDEMNIFICATION.
Tenant agrees to indemnify and defend against and hold harmless
Landlord and the holders of any mortgage or deed of trust encumbering the
Building, and each of their constituent shareholders, partners, members or other
owners, and all of their respective agents, contractors, servants, officers,
directors, managers, employees and licensees (hereinafter collectively called
the "Indemnitees") from any and all loss, cost, liability, damage and expense,
including without limitation penalties, fines and reasonable attorneys fees and
costs, incurred in connection with or arising from any case whatsoever in, on or
about the Premises, including without limiting the generality of the foregoing:
(i) any default by Tenant in the observance or performance of any of the terms,
covenants or conditions of this Lease on Tenant's part to be observed or
performed, or (ii) the use of occupancy or manner of the use or occupancy of the
Premises by Tenant or any other person or entity claiming through or under
Tenant, including without limitation, the presence, use, generation, storage,
transportation or disposal of any Hazardous Materials, or (iii) the condition of
the Premises or any occurrence or happening on the Premises from any cause
whatsoever, except to the extent caused by the willful misconduct or negligent
acts or omissions of Landlord or its authorized representatives, or (iv) any
acts, omissions or negligence of Tenant or of Tenant's agents, contractors,
employees, subtenants, licensees, invitees or visitors or any such person or
entity in on or about the Premises or the Building, either prior to the
commencement of, during, or after the expiration of the term, including without
limitation any acts, omissions or negligence in the making or performing of any
alterations. Tenant further agrees to indemnify, defend and save harmless
Landlord and each Indemnitee from and against any and all loss, cost, liability,
damage and expense, incurred in connection with or arising from any claims by
any persons by reason of injury to persons or damage to property occasioned by
any use, occupancy condition, occurrence, happening, act, omission or negligence
referred to in the preceding sentence, except to the extent caused by the
willful misconduct or negligent acts or omissions of Landlord or its authorized
representatives. In the event any action or proceeding is brought against
Landlord or any Indemnitee for any claim against which Tenant is obligated to
indemnify hereunder, Tenant upon notice from Landlord shall defend such action
or proceeding at Tenant's sole expense by counsel approved by Landlord, which
approval shall not be unreasonably withheld. The provisions of this Section 17
shall survive the expiration or earlier termination of this lease.
b) Landlord Indemnification of Tenant, Landlord shall indemnify, defend, and
hold harmless Tenant. Tenant's officers, directors shareholders, partners,
trustees, members and agents (collectively "Tenant's Parties") from and against
all claims, losses, and liabilities in connection with death or injury to any
person or physical damage to properly to the extent the same are determined by
the final judgment of a court having jurisdiction to have been caused by the
willful misconduct or negligent acts of Landlord or its authorized
representatives in the Building, except to the extent such claim, loss or
liability results from (a) the negligence, omissions or acts of Tenant, or (b)
any default by Tenant of the Lease.
18. INSURANCE.
(a) INSURANCE REQUIREMENTS. Tenant shall, at Tenant's expense,
maintain during the term of this Lease (and, if Tenant shall occupy or conduct
activities in or about the Premises prior to or after the term hereof, then also
during such pre-term or post-term period): (i) Broad Form Commercial General
Liability insurance or Broad Form Comprehensive General Liability insurance, in
either case including contractual liability coverage, with a minimum combined
single limit of liability of at least $2,000,000 for injuries to, or illness or
death of persons and damage to property occurring in or about the Premises or
otherwise resulting from Tenant's operations in the Building, (ii) property
insurance protecting Tenant against loss or damage by fire and such other risks
as are insurable under then available standard forms of "all risk" insurance
policies (excluding earthquake and flood but including water damage), covering
Tenant's property in or about the Premises and also covering any fixtures that
may belong to Tenant. Tenant's property, but excluding the improvements existing
in the Premises as of the date of Tenant's initial occupancy of the Premises,
for the full replacement value thereof without deduction for depreciation; and
(iii) workers' compensation insurance in statutory limits. The above described
liability insurance shall protect Tenant, as named insured, and Landlord and its
agent and any other parties designated by Landlord, as additional insured, shall
insure Landlord's, its agent and such other parties' liability with regard to
acts or omissions of Tenant; and shall specifically include all liability
assumed by Tenant under this Lease (provided, however, that such contractual
liability coverage shall not limit or be deemed to satisfy Tenant's indemnity
obligations under this Lease). Landlord reserves the right to increase the
foregoing amount of liability coverage from time to time as Landlord reasonably
determines is required to adequately protect Landlord and the other parties
designated by Landlord from the matters insured thereby.
<PAGE>
(B) POLICY FORM. Each insurance policy required pursuant to this
Paragraph 18 shall be issued by an insurance company licensed to do business in
the State of California, shall be rated A+X or better in "Best's Insurance
Guide" and approved by Landlord in Landlord's reasonable discretion. Each
insurance policy, other than Tenant's workers' compensation insurance, shall (i)
provide that it may not be materially changed, canceled or allowed to lapse
unless thirty (30) days' prior written notice to Landlord and any other insureds
designated by Landlord is first given, (ii) provide for severability of
interests and that no act or omission of Tenant shall affect or limit the
obligations of the insurer with respect to any other insured, (iii) shall
provide that their respective coverages shall be primary and that any insurance
maintained by Landlord shall be excess insurance only, (iv) in the case of
insurance against loss or damage to the Premises or the Building, shall be
endorsed to provide that such loss shall be adjusted with and be payable to
Landlord, and (v) shall have deductible amounts, if any, not in excess of
$55,000. Notwithstanding the foregoing, so long as Tenant is buzzsaw.com, Inc.,
a Delaware Corporation, or one of its Affiliates, the deductible amounts under
such insurance may exceed $5,000, provided that such deductibles do not exceed
commercially reasonable amounts. Each such insurance policy or a certificate
thereof shall be delivered to Landlord by Tenant on or before the effective date
of such policy and thereafter Tenant shall deliver to Landlord renewal policies
or certificates at least thirty (30) days prior to the expiration dates of
expiring policies. If Tenant fails to procure such insurance or to deliver such
Landlord shall furnish to the Premises, during reasonable hours of generally
recognized policies or certificates. Landlord may, at its option, procure the
same for Tenant's account, and the cost thereof shall be paid to Landlord by
Tenant upon demand.
19. MUTUAL WAIVER OF SUBROGATION RIGHTS.
Each party hereto hereby releases the other party and the respective
partners, shareholders, agents, employees, officers, directors and authorized
representatives of such released party (and, in the case of Tenant as the
releasing party, the holders of any mortgage or deed of trust encumbering the
Building), from any claims such releasing party may have for damage to the
Premises, the building or any of such releasing party's fixtures, personal
property, improvements and alterations in or about the Premises or the building
or the Building that is caused by or results from risks insured against under
any fire and extended coverage insurance policies actually carried by such
releasing party or deemed or required hereunder to be carried by such releasing
party; provided, however, that such waiver shall be limited to the extent of the
net insurance proceeds payable by the relevant insurance company with respect to
such loss or damage. For purposes of this Paragraph 19, Tenant shall be deemed
to be carrying the fire and extended coverage insurance policies required
pursuant to clause (ii) of Paragraph 18(a), above and Landlord shall be deemed
to carry standard fire and extended coverage policies on the building in which
the Premises are located. Each party hereto shall cause each such fire and
extended coverage insurance policy obtained by it to provide that the insurance
company waives all rights of recovery by way of subrogation against the other
respective party and the other aforesaid released parties in connection with any
matter covered by such policy.
20. UTILITIES.
(a) Landlord shall furnish to the Premises, during reasonable
hours. Monday through Friday except recognized public holidays, to be determined
by Landlord, and subject to the rules and regulations of the Building, HVAC
service for the use of the Premises for general office purposes. Landlord shall
also furnish the Premises, at all times, subject to the rules and regulations of
the Building, with water and electricity suitable for the use of the Premises
for general office purposes.
(b) Tenant will not, without the written consent of Landlord, use
any apparatus or device in the Premises which will in any way increase the
amount of electricity, cooling capacity or water usually furnished or supplied
for use of the Premises for general office purposes or connect with electric
current, except through existing electrical outlets in the Premises, or water
pipes, any apparatus or device for the purpose of using electric current or
water. If Tenant shall require water or electric current in excess of that
customarily furnished or supplied to other Tenants of the Building for use of
their Premises for general office purposes. Tenant shall first procure the
consent of Landlord, which Landlord may refuse in its sole discretion, to the
use thereof and Landlord may cause an electric current or water meter to be
installed in the Premises so as to measure the amount of excess electric current
or water consumed by Tenant. The cost of any such meter and of the installation,
maintenance and repair thereof shall be paid by Tenant and Tenant agrees to pay
to Landlord promptly upon demand therefor the cost of all such excess water and
electric current consumed, as shown by said meters, at the rates charged for
such services by the local public utility furnishing the same, plus any
<PAGE>
additional expense incurred in keeping account of the excess electric current or
water so consumed.
(c) Upon request by Tenant in accordance with the procedures
established by Landlord from time to time for furnishing HVAC service at times
other than Business Hours, Landlord shall furnish such service to Tenant and
Tenant shall pay for such services on an hourly basis at the then prevailing
rate established for the Building by Landlord.
(d) In the event of an interruption in or failure or inability to
provide any of the services or utilities described in this Section 20 (a
"Service Failure"), such Service Failure shall not regardless of its duration,
constitute an eviction of Tenant, constructive or otherwise, or impose upon
Landlord any liability whatsoever, including, but not limited to, liability of
consequential damages or loss of business by Tenant or, except as provided
herein, entitle Tenant to an abatement of rent or to terminate this Lease.
(1) If any Service Failure not caused by Tenant or its
representatives prevents Tenant from reasonably using a material portion of the
Premises and Tenant in fact ceases to use such portion of the Premises, Tenant
shall be entitled to an abatement of Base Rent and additional rent with respect
to the portion of the Premises that Tenant is prevented from using by reason of
such Service Failure in the following circumstances: (i) if Landlord fails to
commence reasonable efforts to remedy the Service Failure within ten (10)
business days following the occurrence of the Service Failure and such failure
has persisted and continuously prevented Tenant from using a material portion of
the Premises during that period, the abatement of rent shall commence on the
eleventh business day following the Service Failure and continue until Tenant is
no longer so prevented from using such portion of the Premises; and (ii) if the
Service Failure in all events is not remedied within thirty (30) days following
the occurrence of the Service Failure and Tenant in fact does not use such
portion of the Premises for an uninterrupted period of thirty (30) days or more
by reason of such Service Failure, the abatement of rent shall commence no later
than the thirty-first clay following the occurrence of the Service Failure and
continue until Tenant is no longer so prevented from using such portion of the
Premises.
(2) If a Service Failure is caused by Tenant or its
representatives. Tenant shall not be entitled to an abatement of rent or to
terminate this Lease as a result of any such Service Failure.
(3) Notwithstanding Tenant's entitlement to rent
abatement under the preceding provisions, Tenant shall continue to pay Tenant's
then current rent until such time as Landlord and Tenant agree on the amount of
the rent abatement. If Landlord and Tenant are unable to agree on the amount of
such abatement within ten (10) business days of the date they commence
negotiations regarding the abatement, then either party may submit the matter to
binding arbitration pursuant to Sections 1280 et seq. of the California Code of
Civil Procedure.
(4) In addition to the foregoing provisions, if there is
a Service Failure not caused by Tenant or its representatives and such Service
Failure prevents Tenant from conducting its business in the Premises in the
manner in which Tenant intends to conduct such business, and (i) Landlord fails
to commence reasonable efforts to remedy the Service Failure within ninety (90)
days following the occurrence of the Service Failure, or (ii) the Service
Failure in all events is not remedied within one (1) year following its
occurrence and Tenant in fact does not conduct any business in the Premises for
an uninterrupted period of one (1) year or more, Tenant shall have the right to
terminate this Lease by written notice delivered to Landlord within ten (10)
business days following the event described in clauses (i) or (ii) above giving
rise to the right to terminate.
(5) Where the cause of a Service Failure is within the
control of a public utility or other public or quasi-public entity outside
Landlord's control, notification to such utility or entity of the Service
Failure and request to remedy the failure shall constitute "reasonable efforts"
by Landlord to remedy the Service Failure.
21. PERSONAL PROPERTY AND OTHER TAXES.
Tenant shall pay before delinquency, any and all taxes levied or
assessed and which become pay able during the term hereof upon Tenant's
equipment, furniture, fixture's and other personal properly located in the
Premises, and any and all taxes or increases therein levied or assessed on
Landlord or Tenant by virtue of alterations, additions or improvements to the
Premises made by Tenant or Landlord at Tenant's request. In the event said taxes
are charged to or paid or payable by Landlord. Tenant, forthwith upon demand
therefor, shall reimburse Landlord for all of such taxes paid by Landlord.
22. RULES AND REGULATIONS
<PAGE>
(???) annexed to this Lease as Exhibit D and all modifications of and additions
thereto applicable to all tenants of the Building from time to time put into
effect by Landlord of which Tenant shall have notice. Landlord shall not be
responsible to Tenant for the nonperformance by any other tenant or occupant of
the Building of any of said rules and regulations.
23. HOLDING OVER.
If Tenant holds possession of the Premises after the term of this
lease. Tenant shall, (at option of Landlord to be exercised by Landlord's giving
written notice to Tenant and not otherwise) become a Tenant from month to month
upon the terms and conditions herein specified, so far as applicable, at a
monthly rental of one and one-half (1.5) times the monthly rental in effect
during the last month of the Lease term. Such monthly rent shall be payable in
advance, in lawful money, and shall continue until thirty (30) days after Tenant
shall have given to Landlord or Landlord shall have given to Tenant a written
notice of intent to terminate such monthly tenancy. Unless Landlord shall
exercise the option provided herein, Tenant shall be a tenant at sufferance
only, whether or not Landlord shall accept any rent from Tenant while Tenant is
so holding over.
24. SUBORDINATION.
This Lease shall be subject and subordinate at all times to all ground
or underlying leases which may now exist or hereafter be executed affecting the
Building and/or the land upon which the Building is situated and to the lien of
any mortgages or deeds of trust in any amount or amounts whatsoever now or
hereafter placed on or against said Building and/or the land upon which the
Building is situated or on or against Landlord's interest or estate therein or
on or against any ground or underlying lease without the necessity of having
further instruments on the part of Tenant to effectuate such subordination;
provided, however, that such subordination shall only be effective, as to future
ground or underlying leases or liens, if the holder of the lease or lien agrees
that this Lease shall survive the termination of the lease or lien by lapse of
time, foreclosure or otherwise so long as Tenant is not in default under this
Lease. Provided the conditions of the preceding sentence are satisfied, Tenant
covenants and agrees to execute and deliver, upon demand, such further
instruments evidencing such subordination of this Lease to such ground or
underlying leases and to the lien of any such mortgages or deeds of trust as may
be reasonably required by Landlord. In the event of termination of any ground or
underlying lease, or in the event of foreclosure or exercise of any power of
sale under any mortgage or deed of trust superior to this Lease or to which this
Lease is subject or subordinate. Tenant shall upon demand attorn to the lessor
under such ground or underlying lease or to the purchaser at any foreclosure
sale or sale pursuant to the exercise of any power of sale under any mortgage or
deed of trust, in which event this Lease shall not terminate and Tenant shall
automatically be and become the Tenant of said lessor under such ground or
underlying lease or to said purchaser, whichever shall make demand therefor.
Landlord agrees to use commercially reasonable efforts to obtain, at Tenant's
sole cost and expense, a non-disturbance agreement from the holder of any
existing encumbrance on the Building in a form reasonably acceptable to such
holder of the encumbrance; provided, however, that the effectiveness of this
Lease shall not be affected by Landlord's failure to obtain such an agreement.
25. ENTRY BY LANDLORD.
Landlord reserves and shall at any and all reasonable times, upon
reasonable prior oral notice (and without notice in emergencies) have the right
to enter the Premises to inspect the same, to supply janitor service and any
other service to be provided by Landlord to Tenant hereunder, to submit the
Premises to prospective purchasers or Tenants, to post notices of
non-responsibility, and to alter, improve or repair the Premises and any portion
of the Building without abatement of rent and may for that purpose erect
scaffolding and other necessary structures where reasonably required by the
character of the work to be performed, provided the entrance to the Premises
shall not be blocked thereby and further providing that the business of Tenant
shall not be interfered with unreasonably. Tenant shall be entitled to accompany
Landlord and/or representatives during any such entries into the Premises.
provided that Landlord's entry shall in no event be conditioned upon Tenant
accompanying Landlord. Tenant hereby waives any claim for damages for any injury
or inconvenience to or interference with Tenant's business, any loss of
occupancy of quiet enjoyment of the Premises, and other loss occasioned by such
entry. 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, and Landlord shall have the right
to use any and all means which Landlord may deem proper to open said doors in an
emergency in order to obtain entry to the Premises, and any entry to the
Premises obtained by Landlord by any of said means, or otherwise, shall not
under any circumstances be construed or deemed to be a
<PAGE>
(???) Premises or any portion thereof.
26. INTENTIONALLY DELETED.
27. DEFAULT.
(a) EVENTS OF DEFAULT. The occurrence of any of the following
shall constitute an "Event of Default" by Tenant:
(i) Tenant fails to make any payment of rent when due, or
any amount required to replenish the security deposit as provided in Paragraph 8
above, if payment in full is not received by Landlord within three (3) days
after written notice that it is due, which period shall run concurrently with
any statutory notice period.
(ii) Tenant abandons the Premises.
(iii) Tenant fails timely to deliver any subordination
document, estoppel certificate or financial statement requested by Landlord
within the applicable time period specified in Paragraphs 24 and 33.
(iv) Tenant violates the restrictions on assignments and
subleases set forth in Paragraph 16.
(v) Tenant ceases doing business as a going concern;
makes an assignment for the benefit of creditors; is adjudicated an insolvent,
files a petition (or files an answer admitting the material allegations of a
petition) seeking relief under any state or federal bankruptcy or other statute,
law or regulation affecting creditors' rights; all or substantially all of
Tenant's assets are subject to judicial seizure or attachment and are not
released within 30 days, or Tenant consents to or acquiesces in the appointment
of a trustee, receiver or liquidator for Tenant or for all or any substantial
part of Tenant's assets.
(vi) Tenant fails, within ninety (90) days after the
commencement of any proceedings against Tenant seeking relief under any state or
federal bankruptcy or other statute, law or regulation affecting creditors'
rights, to have such proceedings dismissed, or Tenant fails, within ninety (90)
days after an appointment, without Tenant's consent or acquiescence, of any
trustee, receiver or liquidator for Tenant or for all or any substantial part of
Tenant's assets, to have such appointment vacated.
(vii) Tenant fails to perform or comply with any provision
of this Lease other than those described in (i) through (vi) above, and does not
fully cure such failure within thirty (30) days after notice to Tenant or, if
such failure cannot be cured within such thirty (30)-day period. Tenant fails
within such thirty (30)-day period to commence, and thereafter diligently
proceed with, all actions necessary to cure such failure as soon as reasonably
possible but in all events within ninety (90) days of such notice; provided,
however, that if Landlord in Landlord's reasonable judgment determines that such
failure cannot or will not be cured by Tenant within such ninety (90) days, then
such failure shall constitute an Event of Default immediately upon such notice
to Tenant.
(b) REMEDIES. Upon the occurrence of an Event of Default, Landlord
shall have the following remedies, which shall not be exclusive but shall be
cumulative and shall be in addition to any other remedies now or hereafter
allowed by law:
(i) Landlord may terminate Tenant's right to possession
of the Premises at any time by written notice to Tenant. Tenant expressly
acknowledges that in the absence of such written notice from Landlord, no other
act of Landlord, including re-entry into the Premises, efforts to relet the
Premises, reletting of the Premises for Tenant's account, storage of Tenant's
personal property and trade fixtures, acceptance of keys to the Premises from
Tenant or exercise of any other rights and remedies under this Paragraph 27(b),
shall constitute an acceptance of Tenant's surrender of the Premises or
constitute a termination of this Lease or of Tenant's right to possession of the
Premises. Upon such termination in writing of Tenant's right to possession of
the Premises, as herein provided, this Lease shall terminate and Landlord shall
be entitled to recover damages from Tenant as provided in California Civil Code
Section 1951.2 and any other applicable existing or future Law providing for
recovery of damages for such breach, including the worth at the time of award of
the amount by which the rent which would be payable by Tenant hereunder for the
remainder of the Term after the date of the award of damages, including
additional rent as reasonably estimated by Landlord, exceeds the amount of such
rental loss as Tenant proves could have been reasonably avoided, discounted
<PAGE>
at the discount rate published by the Federal Reserve Bank of San Francisco for
member banks at the time of the award plus one percent (1%).
(ii) Landlord shall have the remedy described in
California Civil Code Section 1951.4 (Landlord may continue this Lease in effect
after Tenant's breach and abandonment and recover rent as it becomes due, if
Tenant has the right to sublet or assign, subject only to reasonable
limitations).
(iii) Landlord may cure the Event of Default at Tenant's
expense. If Landlord pays any sum or incurs any expense in curing the Event of
Default, Tenant shall reimburse Landlord upon demand for the amount of such
payment or expense with interest at the Interest Rate from the date the sum is
paid or the expense is incurred until Landlord is reimbursed by Tenant.
(iv) Landlord may remove all Tenant's property from the
Premises, and such property may be stored by Landlord in a public warehouse or
elsewhere at the sole cost and for the account of Tenant. If Landlord does not
elect to store any or all of Tenant's property left in the Premises, Landlord
may consider such property to be abandoned by Tenant, and Landlord may thereupon
dispose of such properly in any manner deemed appropriate by Landlord. Any
proceeds realized by Landlord on the disposal of any such property shall be
applied first to offset all expenses of storage and sale, then credited against
Tenant's outstanding obligations to Landlord under this Lease, and any balance
remaining after satisfaction of all obligations of Tenant under this Lease shall
be delivered to Tenant.
28. DAMAGE OR DESTRUCTION
In the event the Premises or a portion of the Building is damaged by
fire or other insured casualty. Landlord shall diligently repair the same to the
extent possible with the insurance proceeds received by Landlord, subject to the
provisions of this Paragraph 28 hereinafter set forth, if such repairs can in
Landlord's opinion be made within 90 days after issuance of a building permit
therefor under the laws and regulations of federal, state and local governmental
authorities having jurisdiction thereof. In such event this Lease shall remain
in full force and effect. Unless such damage was caused the negligence or
willful misconduct of Tenant or Tenant's agents, contractors, employees,
subtenants, licensees, invitees or visitors, Base Rent shall be abated to the
extent the Premises is rendered unusable by Tenant in the conduct of its
business during the lime such part is so unusable. Notwithstanding the
foregoing, if such damage shall occur during the final year of the term of this
Lease. Landlord shall not be obligated to repair such damage, but may instead
elect to terminate this Lease upon written notice given to Tenant within 30 days
after the date of such fire or other casualty, in which event this Lease shall
terminate as of the termination date specified in Landlord's notice.
If such repairs cannot in Landlord's opinion be made within 90 days
after issuance of a building permit therefor or if such damage is uninsured.
Landlord may elect to (i) repair or restore such damage, in which event this
Lease shall continue in full force and effect, but basic rent shall be partially
abated as herein above in this Section provided or (ii) terminate this Lease in
which event this Lease shall terminate as of the termination dale specified in
Landlord's notice. If such repairs cannot in Landlord's opinion be made within
90 days after issuance of a building permit therefor or if such damage is
uninsured. Landlord shall give Tenant notice within sixty (60) days after the
date of the casualty, specifying whether Landlord elects to terminate this Lease
as provided above and, if not, Landlord's estimate of the time required to
complete Landlord's repair obligations under this Lease.
A total destruction of the Building automatically shall terminate this
Lease. Landlord and Tenant acknowledge that this Lease constitutes the entire
agreement of the parties regarding events of damage or destruction, and Tenant
waives the provisions of California Civil Code Sections 1932(2) and 1933(4) and
any similar statute now or hereafter in force.
If the Premises are to be repaired under this Paragraph 28. Landlord
shall repair at its cost any injury or damage to the Building itself and the
initial improvements made to the Premises by Landlord pursuant to this Lease.
Tenant shall pay the cost of repairing or replacing all other improvements in
the Premises and Tenant's trade fixtures, furnishings, equipment and other
personal property.
If all or a substantial part of the Premises are rendered untenantable
or inaccessible by damage to all or any part of the Building from fire or other
casualty, and Landlord does not elect to terminate as provided above, then
Tenant may elect to terminate this Lease if Landlord's opinion of the time
required to complete Landlord's repair obligations under this Lease is greater
than one (1) year, in which event Tenant may elect to terminate this Lease by
giving Landlord notice of
<PAGE>
such election to terminate within thirty (30) days after Landlord's notice to
Tenant of Landlord's estimate of the time required to complete Landlord's repair
obligations under this Lease.
29. EMINENT DOMAIN.
If all or any part of the Premises shall be taken or appropriated by
any public or quasi-public authority under the power of eminent domain, and such
taking will substantially impair Tenant's use of the Premises for more than 90
days, either party hereto shall have the right, at its option, to terminate this
Lease. If all or any part of the building of which the Premises are a part shall
be taken or appropriated by any public or quasi-public authority under any power
of eminent domain, Landlord may terminate this Lease. In either of such events,
Landlord shall be entitled to and Tenant upon demand of Landlord shall assign to
Landlord any rights of Tenant to any and all income, rent, award, or any
interest therein whatsoever which may be paid or made in connection with such
public or quasi-public use or purpose, and Tenant shall have no claim against
Landlord for the value of any unexpired term of this Lease. If a part of the
Premises shall be so taken or appropriated and neither party hereto shall elect
to terminate this Lease, the rent (hereafter to be paid shall be equitably
reduced
30. CLAUSES, PLATS AND RIDERS.
Clauses, plats and riders, if any, endorsed on or affixed to this Lease
are a part hereof.
31. SALE BY LANDLORD
In the event the Landlord hereunder shall sell or convey the building
in which the Premises are a part, all liabilities and obligations on the part of
the Landlord under this Lease accruing thereafter shall terminate, and thereupon
all such liabilities and obligations shall be binding upon the new owner. Tenant
agrees to attorn to such new owner. If any security be given by Tenant to secure
the faithful performance of all or any of the covenants of this Lease o on the
part of Tenant, Landlord may transfer and/or deliver the security to the
successor in interest of Landlord and thereupon Landlord shall be discharged
from any further liability in reference thereto. Except as set forth in this
Paragraph 31, this Lease shall not be affected by any such sale or conveyance.
32. LIMITATION OF LIABILITY.
It is expressly understood and agreed by Tenant that none of Landlord's
covenants, undertakings or agreements are made or intended as personal
covenants, undertakings or agreements by Landlord, any mortgagee having a
security interest in the Building or portion thereof, Landlord's partners (if
Landlord is a partnership), Landlord's shareholders, officers and directors (if
Landlord is a corporation) or Landlord's members, managers, officers and
directors (if Landlord is a limited liability company). Any liability for damage
or breach or nonperformance by Landlord shall be collectible only out of
Landlord's interest in the Building and no personal liability is assumed by, nor
at any time may be asserted against, Landlord, any mortgagee having an interest
in the Building or portion thereof, or Landlord's partners, shareholders,
members, managers, officers, or directors, as applicable, or any of their
respective officers, agents, employees, legal representatives, successors or
assigns, all such liability, if any, being expressly waived and released by
Tenant.
33. ESTOPPEL CERTIFICATES.
At any lime and from time to time, upon not more than ten (10) days
prior request by Landlord. Tenant shall execute, acknowledge and deliver to
Landlord a statement certifying the date of commencement of this Lease, stating
that this Lease is unmodified and in full force and effect (or if there have
been modifications, that this Lease is in full force and effect as modified and
the date and nature of such modifications) and the dates to which the rent has
been paid, and selling forth such other matters as may reasonably be requested
by Landlord. Landlord and Tenant intend that any such statement delivered
pursuant to this paragraph may be relied upon by any mortgagee or the
beneficiary of any deed of trust or by any purchaser or prospective purchaser of
the Building. In addition, from time to time, upon Landlord's request, but in no
event more than one (1) time per year, Tenant shall promptly furnish Landlord
financial statements reflecting Tenant's current financial condition and, if
rendered in the ordinary course of conducting Tenant's business, a copy of
Tenant's latest certified financial statements.
34. RIGHT OF LANDLORD TO PERFORM.
All covenants and agreements to be kept or performed by Tenant under
any of the terms of this Lease shall be performed by Tenant at Tenant's sole
cost and expense and without any abatement of rent. If Tenant shall fail to pay
any sum of money, other than rent, required to be paid by it hereunder or shall
fail to perform any other act on its part to be performed hereunder and such
failure shall continue for ten (10) days after notice thereof by
<PAGE>
Landlord. Landlord may, but shall not be obligated to, and without waiving any
default of Tenant or releasing Tenant from any obligations of Tenant hereunder,
make any such payment or perform any such other act on Tenant's part to be made
or performed as provided herein. All sums so paid by the Landlord and all
necessary incidental costs, together with interest thereon at the highest rate
allowed by law from the date of such payment by the Landlord, shall be paid to
Landlord forthwith on demand, and Landlord shall have (in addition to any other
right or remedy of Landlord) the same rights and remedies in the event of
nonpayment thereof by Tenant as in the case of default by Tenant in payment of
rent.
35. LANDLORD'S DEFAULT AND TENANT'S REMEDIES.
Landlord shall not be in default unless Landlord fails to perform any
of its obligations under this Lease and fails to cure such default within thirty
(30) days after written notice from Tenant specifying the nature of such default
where such default could reasonably be cured within said thirty (30) day period,
or fails to commence such cure within said thirty (30) day period and thereafter
continuously with due diligence prosecute such cure to completion where such
default could not reasonably be cured within said thirty (30) day period. Tenant
waives the provisions of Section 1932(1), 1941 and 1942 of the California Civil
Code and/or any similar or successor law regarding Tenant's right to terminate
this Lease or to make repairs and deduct the expenses of such repairs from the
rent due under the Lease. Tenant hereby waives any right of redemption or relief
from forfeiture under the laws of the State of California, or under any other
present or future law, including the provisions of Sections 1174 and 1179 of the
California Code of Civil Procedure.
36. MORTGAGEE PROTECTIONS.
Tenant agrees to give any holder of any lien or ground or underlying
lease covering any part of the Property ("Mortgagee"), by registered mail, a
copy of any notice of default served upon Landlord, provided that prior to such
notice Tenant has been notified in writing (by way of notice of assignment of
rents and leases, or otherwise) of the address of such Mortgagee. If Landlord
shall have failed to cure such default within thirty (30) days from the
effective date of such notice of default, then the Mortgagee shall have an
additional thirty (30) days within which to cure such default or if such default
cannot be cured within that time, then such additional time as may be necessary
to cure such default (including the time necessary to foreclose or otherwise
terminate its lien or lease, if necessary to effect such cure), and this Lease
shall not be terminated so long as such remedies are being diligently pursued.
37. ATTORNEY FEES.
In the event of any dispute between Landlord and Tenant in any way
related to this Lease, and whether involving contract and/or tort claims, the
non-prevailing party shall pay to the prevailing party all reasonable attorneys'
fees and costs and expenses of any type, without restriction by statute, court
rule or otherwise, incurred by the prevailing party in connection with any
action or proceeding (including any appeal and the enforcement of any judgment
or award), whether or not the dispute is litigated or prosecuted to final
judgment (collectively, "Fees"). The "prevailing party" shall be determined
based upon an assessment of which party's major arguments or positions taken in
the action or proceeding could fairly be said to have prevailed (whether by
compromise, settlement, abandonment by the other party of its claim or defense,
final decision, after any appeals, or otherwise) over the other party's major
arguments or positions on major disputed issues. Any Fees incurred in enforcing
a judgment shall be recoverable separately from any other amount included in the
judgment and shall survive and not be merged in the judgment. The Fees shall be
deemed an "actual pecuniary loss" within the meaning of Bankruptcy Code Section
365(b)(1)(B), and notwithstanding the foregoing, all Fees incurred by either
party in any bankruptcy case filed by or against the other party, from and after
the order for relief until this Lease is rejected or assumed in such bankruptcy
case, will be "obligations of the debtor" as that phrase is used in Bankruptcy
Code Section 365(d)(3).
38. SURRENDER OF POSSESSION.
The voluntary or other surrender of this Lease by Tenant or mutual
cancellation thereof shall not work a merger and at the option of Landlord,
shall terminate all or any existing subleases or subtenancies, or at the option
of Landlord, may operate as an assignment to Landlord of any or all such
subleases or subtenancies.
39. WAIVER.
The waiver by Landlord or Tenant of performance of any term, covenant
or condition herein contained shall not be deemed to be a waiver of such term,
covenant or condition or any subsequent breach of the same or any other term,
covenant or condition herein contained. The subsequent acceptance of rent
hereunder by Landlord shall not be deemed to be a waiver of any preceding breach
by Tenant of any term, covenant or condition of this Lease, other than
<PAGE>
the failure of Tenant to pay the particular rent so accepted, regardless of
Landlord's knowledge of such preceding breach at the time of acceptance of such
rent.
40. NOTICES.
Any notices required or permitted to be given hereunder, shall be given
in writing and shall be delivered (a) in person, (b) by certified mail, postage
prepaid, return receipt requested, (c) by a commercial overnight courier that
guarantees next day delivery and provides a receipt, or (d) by telefacsimile or
telecopy, and such notices shall be addressed to Tenant or Landlord, as
applicable, at the addresses specified for each in the Basic Lease Information
or to such other address as either party may from time to time specify in
writing to the other party. Any notice shall be deemed delivered when actually
delivered, if such delivery is in person, three (3) business days after deposit
with the U.S. Postal Service, if such delivery is by certified mail, one (1)
business day after deposit with the overnight courier service, if such delivery
is by an overnight courier service, and one (1) business day after transmission,
if such delivery is by telefacsimile or telecopy. The foregoing shall in no
event prohibit notice from being given as provided by the federal or state Rules
of Civil Procedure, as the same may be amended from time to time.
41. DEFINED TERMS AND MARGINAL HEADINGS.
The words "Landlord" and "Tenant" as used herein shall include the
plural as well as the singular and words used in masculine gender shall include
the feminine and neuter. If there is than one Tenant the obligations hereunder
imposed upon Tenant shall be joint and several. The marginal headings and titles
to the paragraphs of the Lease are not a part of this Lease and shall have no
effect upon the construction or interpretation of any part hereof.
42. TIME AND APPLICABLE LAW.
Time is of the essence of this Lease and each and all of its
provisions. This Lease shall in all respects be governed by the laws of the
state in which the Premises are located.
43. SUCCESSORS.
Subject to the provisions of Paragraph 16 hereof, the covenants and
conditions herein contained shall be binding upon and inure to the benefits of
the heirs, successors, executors, administrators and assigns of the parties
hereto.
44. ENTIRE AGREEMENT.
This Lease constitutes the entire agreement between Landlord and Tenant
and no promises or representations, express or implied, either written or oral,
not herein set forth shall be binding upon or inure to the benefit of Landlord
or Tenant. This Lease shall not be modified by any oral agreement, either
express or implied and all modifications hereof shall be in writing and signed
by both Landlord and Tenant.
45. LATE CHARGE.
In the event Tenant or Landlord shall fail to pay any rent or other
sums due hereunder on the due-date herein provided, then and in that event the
amount so due and unpaid shall bear interest from and after due-date until paid
at an annual rate of interest equal to the lesser of (i) three percent (3%) over
the prevailing "prime rate" announced from time to time by the Bank of America
NT&SA for purposes of pricing loans to major corporate borrowers or (ii) the
highest rate allowed by law for commercial obligations, which interest shall be
payable forthwith upon demand. In addition to such interest, with respect to any
installment of monthly rent not received by Landlord when due hereunder,
Landlord shall be entitled to collect from Tenant a one-time late collection
charge in an amount equal to five percent (5%) of the delinquent amount to
compensate Landlord for Landlord's administrative and other costs and efforts in
connection therewith. Landlord and Tenant hereby agree that such five percent
(5%) late charge represents a reasonable approximation of Landlord's losses and
costs that would be incurred in connection with the late payment of such monthly
rent. (The foregoing shall be in addition to any other right or remedy of
Landlord).
46. BROKERS.
Landlord and Tenant each represent and warrant to the other that, other
than Tenant's broker identified in the Basic Lease Information (the "Broker"),
no broker, agent, or finder negotiated or was instrumental in negotiating or
consummating this Lease on its behalf and that it knows of no broker, agent, or
finder, other than the Broker who are or might be entitled to a commission or
compensation in connection with this Lease. In the event of any such claims for
additional brokers' or finders' fees or commissions in connection with the
negotiation, execution or consummation of this Lease, then Landlord shall
indemnify, save harmless and defend Tenant from and against such claims and any
liability, loss, damage or expense (including attorneys' fees and costs) if they
shall be based upon any statement, representation or
<PAGE>
agreement by Landlord, and Tenant shall indemnify, save harmless and defend
Landlord from and against such claims, and any liability, loss, damage, or
expense (including attorneys' fees and costs) if they shall be based upon any
statement, representation or agreement made by Tenant. Landlord shall pay Broker
pursuant to a separate agreement between Landlord and Broker.
47. NO DISCRIMINATION.
Tenant agrees for Tenant and Tenant's heirs, executors, administrators,
successors and assigns and all persons claiming under or through Tenant, and
this Lease is made and accepted upon the following conditions: that there shall
be no discrimination against or segregation of any person or group of persons on
account of race, color, creed, sex, religion, martial status, ancestry or
national origin (whether in the use, occupancy, subleasing, transferring, tenure
or enjoyment of the Premises or otherwise) nor shall Tenant or any person
claiming through or under Tenant establish or permit any such practice or
practices of discrimination or segregation with reference to or arising out of
the use or occupancy of the Premises by Tenant or any person claiming through or
under Tenant.
48. OWNER'S RIGHT TO PERFORM BUILDING RENOVATIONS
(1) Tenant understands and agrees that Owner may, at any time or
from time to time during the term of the Lease, perform substantial renovation
work in and to the Building or the mechanical systems serving the Building
(which work may include, but need not be limited to the repair or replacement
of the Building's exterior facade, exterior window glass, elevators, electrical
systems, air conditioning and ventilating systems, plumbing system, structural
systems; including seismic upgrades, common hallways, or lobby), any of which
work may require access to the same from within the Premises.
(2) Tenant agrees that:
(a) Owner shall have access to the Premises at all
reasonable times, upon reasonable notice, for the
purpose of performing such work, and
(b) Owner shall incur no liability to Tenant, nor shall
Tenant be entitled to any abatement of rent on
account of any noise, vibration, or other disturbance
to Tenant's business at the Premises (provided that
Tenant is not denied access to said Premises) which
shall arise out of said access by Owner or by the
performance by Owner of the aforesaid renovations at
the Building.
(3) Owner shall use reasonable efforts (which shall not include
any obligation to employ labor at overtime rates) to avoid disruption of
Tenant's business during any such entry upon the Premises by Owner.
(4) It is expressly understood and agreed by and between Owner and
Tenant that if Tenant shall commence any action or proceeding seeking
injunctive, declaratory, or monetary relief in connection with the rights
reserved to Owner under this provision, or if Owner shall commence any action or
proceeding to obtain access to the Premises in accordance with this provision,
and if Owner shall prevail in any such action, then Tenant shall pay to Owner,
as additional rent under this Lease, a sum equal to all legal fees, costs and
disbursements incurred by Owner in any way related to or arising out of such
action or proceeding.
49. SIGNAGE.
No sign, advertisement or notice shall be inscribed, painted or affixed
on any part of the inside or outside of the Building unless of such color, size
and style and in such place upon or in the Building as shall be first designated
by Landlord, but there shall be no obligation or duty on Landlord to allow any
sign, advertisement or notice to be inscribed, painted or affixed on any part of
the inside or outside of the Building. A directory in a conspicuous place, with
the names of Tenant, not to exceed one (1) name(s), shall be provided by
Landlord on a one time basis. Any necessary revision to such directory shall be
made by Landlord, at Tenant's expense, within a reasonable time after written
notice from Tenant of the change making the revision necessary. Landlord shall
have the right to remove all non-permitted signs without notice to Tenant and at
the expense of Tenant.
50. TELEPHONE SERVICE.
Landlord shall have no responsibility for providing to Tenant any
telephone equipment, including wiring, within the Premises or for providing
telephone service or connections from the utility to the Premises, except as
required by the express terms of this Lease.
<PAGE>
Tenant shall not alter, modify, add to or disturb any telephone wiring
in the Premises or elsewhere in the Building without the Landlord's prior
consent. Tenant shall be liable to Landlord for any damage to the telephone
wiring in the Building due to the act, negligent or otherwise, of Tenant or any
employee, contractor or other agent of Tenant. Tenant shall have no access to
the telephone closets outside of the Premises, except in the manner and under
procedures established by Landlord. Tenant shall promptly notify Landlord of any
actual or suspected failure of telephone service to the Premises.
If Landlord elects to perform telephone related work for the benefit of
all of the tenants of the Building generally, all costs incurred by Landlord in
the course of such work shall be an Operating Expense, as otherwise defined in
Paragraph 7 of this Lease, unless Landlord is reimbursed for such costs by other
tenants of the Building.
Landlord shall not be liable to Tenant and Tenant waives all claims
against Landlord whatsoever, whether for personal injury, property damage, loss
of use of the Premises, or otherwise, due to the interruption or failure of
telephone services to the Premises. Tenant hereby holds Landlord harmless and
agrees to indemnify, protect and defend Landlord from and against any liability
for any damage, loss or expense due to any failure or interruption of telephone
service to the Premises for any reason. Tenant agrees to obtain loss of rental
insurance adequate to cover any damage, loss or expense occasioned by the
interruption of telephone service.
51. INTENTIONALLY DELETED.
52. HAZARDOUS SUBSTANCE DISCLOSURE.
California law requires landlords to disclose to tenants the existence
of certain hazardous substances. Accordingly, the existence of gasoline and
other automotive fluids, maintenance fluids, copy fluids and other office
supplies and equipment, certain construction and finish materials, tobacco
smoke, cosmetics and other personal items, and asbestos containing materials
("ACM"), must be disclosed. Gasoline and other automotive fluids are found in
the parking area of the Building. Cleaning, lubricating and hydraulic fluids
used in the operation and maintenance of the Building are found in the utility
areas of the Building not generally accessible to tenants or the public. Many
Building occupants use copy machines and printers with associated fluids and
toners, and pens, markers, inks and office equipment that may contain hazardous
substances. Certain adhesives, paints and other construction materials and
finishes used in portions of the Building may contain hazardous substances.
Although smoking is prohibited in the public areas of the Building, these areas
may, from time to time, be exposed to tobacco smoke. Building occupants and
other persons entering the Building from time to time may use or carry
prescription and nonprescription drugs, perfumes, cosmetics and other
toiletries, and foods and beverages, some which may contain hazardous
substances. Certain floor tiles in the Building may also contain ACM. Landlord
has made no special investigation of the Premises with respect to hazardous
substances.
53. AUTHORITY.
If Tenant is a corporation, partnership, trust, association or other
entity, Tenant and each person executing this Lease on behalf of Tenant hereby
covenants and warrants that (a) Tenant is duly incorporated or otherwise
established or formed and validly existing under the laws of its state of
incorporation, establishment or formation, (b) Tenant is duly qualified to do
business in the State of California, (c) Tenant has full corporate, partnership,
trust, association or other appropriate power and authority to enter into this
Lease and to perform all of Tenant's obligations hereunder, and (d) each person
(and all persons if more than one signs) signing this Lease on behalf of Tenant
is duly and validly authorized to do so.
54. EXECUTION OF LEASE.
The submission of this Lease to Tenant or its broker or other agent,
does not constitute an offer to Tenant to lease the premises. This Lease shall
have no force and effect until (a) it is executed and delivered by Tenant to
Landlord and (b) it is fully reviewed and executed by Landlord.
55. PARKING.
Landlord shall make available to Tenant the right to lease its pro-rata
share of parking spaces, or one per every 3,000 rentable square feet leased, in
the building garage at the prevailing market rate for the building garage.
56. TEMPORARY PREMISES
It is agreed and understood by Landlord and Tenant that Tenant may need
use of space in the building for its temporary occupancy while constructing the
Initial Tenant Improvements.
<PAGE>
To that end, Landlord agrees that Tenant may occupy the Second Floor of the
building (EXHIBIT B-1) on a month-to-month basis, prior to the Expansion
Commencement Date. Commencement for the Temporary Premises shall begin fourteen
(14) days after full lease execution and shall continue through January 14,
2000, or upon substantial completion of the Initial Tenant Improvements. During
the temporary occupancy, all terms of the Lease shall apply except Paragraph 1
("Premises"), Paragraph 3 ("Commencement Date.") and Paragraph 5 ("Base Rent").
The rent for the Temporary Space shall be Two Dollars ($2.00) per rentable
square foot per month for the period ending January 31, 2000, and Four Dollars
($4.00) per rentable square foot thereafter. Rent will be pro-rated for the
Temporary Premises on a daily basis, should the tenant occupy for a period less
than one (1) month.
IN WITNESS WHEREOF Landlord and Tenant have executed this Lease as of the day
and year first above written.
LANDLORD: 300 CALIFORNIA ASSOCIATES, LLC, a California limited
liability company
BY: /s/ Michael Halper
---------------------------------
NAME: Michael Halper
TITLE: Manager
TENANT: buzzsaw.com, Inc., a Delaware Corporation
BY: /s/ Carl Bass
---------------------------------
NAME: Carl Bass
TITLE: President & CEO
<PAGE>
EXHIBIT A
LEGAL DESCRIPTION
Commonly known as 300 CALIFORNIA STREET, San Francisco, California
The land referred to in this Lease is situated in the State of California, City
and County of San Francisco, and is described as follows:
Beginning at the point of intersection of the northerly line of California
Street, with the westerly line of Battery Street; running thence northerly along
said westerly line of Battery Street 124 feet to the southerly line of Halleck
Street; thence westerly along said southerly line of Halleck Street 121 feet 9
inches; thence at a right angle southerly 124 feet to the northerly line of
California Street; thence easterly along said northerly line of California
Street 121 feet 9 inches to the point of commencement.
Being part of Block No. 37.
Assessor's Lot 2: Block 238
<PAGE>
EXHIBIT B
DESCRIPTION OF INITIAL PREMISES
THIRD FLOOR
300 CALIFORNIA STREET
3RD FLOOR
[FLOOR PLAN]
<PAGE>
EXHIBIT B
DESCRIPTION OF INITIAL PREMISES
FOURTH FLOOR
300 CALIFORNIA STREET
4TH FLOOR
[FLOOR PLAN]
<PAGE>
EXHIBIT B-1
DESCRIPTION OF TEMPORARY PREMISES
SECOND FLOOR
300 California Street
2nd Floor
[FLOOR PLAN]
<PAGE>
EXHIBIT B-2
DESCRIPTION OF OPTION PREMISES
SECOND FLOOR
300 California Street
2nd Floor
[FLOOR PLAN]
<PAGE>
EXHIBIT C
WORK LETTER AGREEMENT
This Work Letter Agreement supplements that certain lease (the "Lease") dated
and executed concurrently herewith by and between 300 California Associates,
LLC, a California Limited Liability Company ("Landlord"), and buzzsaw.com. Inc.,
a Delaware Corporation ("Tenant"), with the terms defined in the Lease to have
the same definition where used herein.
1. TENANT IMPROVEMENTS.
Tenant accepts premises in as-is condition.
(a) Notwithstanding the foregoing, Tenant shall be entitled to a
one-time tenant improvement allowance (the "Tenant Improvement
Allowance") in the amount of Twenty-Five Dollars ($25.00) for each
rentable square foot of the Initial Premises to be applied toward
payment of any tenant improvement costs described below (the
"Tenant Improvements"). In no event shall Landlord be obligated to
make disbursements pursuant to this Agreement in a total amount
which exceeds the Tenant Improvement Allowance.
In addition. Tenant shall be entitled to a one-time tenant
improvement allowance in the amount of Twenty-five Dollars ($25.00)
for each rentable square foot of the Expansion Premises to be
applied to the payment of the tenant improvement costs described
below (the "Tenant Improvements"). In no event shall Landlord be
obligated to make disbursements pursuant to this Agreement in a
total amount which exceeds the Tenant Improvement Allowance.
Total Tenant Improvement Allowance for floors 3 and 4 combined will
in no event exceed Seven Hundred Sixty Five Thousand Nine Hundred
and Twenty Five Dollars ($765,925)
(b) Construction Costs. All costs and expenses to construct the Tenant
Improvements approved by Landlord, including all fee and expenses for:
(i)
(1) architectural/space planning services
utilized in preparation of any space plans;
(2) architects, engineers and consultants in the
preparation and review of the Construction Plans;
(3) labor, materials, equipment and fixtures
supplied by the general contractor, its subcontractors and/or materialman;
(4) the furnishing and installation of all HVAC,
electrical, lighting, window and floor coverings, fire and life safety control
systems, plumbing and painting throughout and within the Premises;
(5) all fees charged by the City and/or County
where building is located required for tenant improvement work in the Premises;
(6) all costs and expenses incurred to comply
with all laws, rules, regulations or ordinances of any governmental authority
for any work at the Project in order to construct the Tenant Improvements.
The term Construction Costs shall not include any
fees, costs, expenses, compensation or other consideration payable to Tenant, or
any of its officers, directors, employees or affiliates, or the cost of any of
Tenant's furniture, artifacts, trade fixtures, telephone and computer systems
and related facilities, or equipment, but shall include the cost of any
construction manager who is not an employee of Tenant or its Affiliates.
(ii) Disbursement of Tenant Improvement Allowance. Upon
completion of construction of the Tenant Improvements. Landlord shall disburse
the Tenant Improvement Allowance for Tenant Improvement Allowance Items within
thirty (30) days of written request for disbursement. If Landlord is required to
disburse the Tenant Improvement Allowance under the terms of this Lease and
fails to disburse the Tenant Improvement Allowance within such thirty (30) day
period, Tenant, at anytime after the expiration of such thirty (30) day period
and prior to the first anniversary of the Commencement Date, may apply such
unpaid Tenant
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Improvement Allowance against Tenant's rental obligations that become due during
such one year period, provided that Tenant shall deliver to Landlord written
notice of Tenant's intent to make such offset at least ten business days prior
to so applying the Tenant Improvement Allowance. To the extent the Tenant
Improvement Allowance has neither been disbursed to Tenant nor applied against
Tenant's rental obligations that become due during such one year period, the
Tenant Improvement Allowance shall be deemed forfeited.
(1) Disbursement. Tenant shall provide to
Landlord prior to disbursement (i) a request (or payment detailing the work
completed; (ii) invoices from all of "Tenant's Agents", as that term is defined
in Section 3 of this Agreement, for labor rendered and materials delivered to
the Premises; (iii) executed mechanic's lien releases from all of Tenant's
Agents which shall comply with the appropriate provisions, as reasonably
determined by Landlord, of California Civil Code Section 3262(d); and (iv) all
other information reasonably requested by Landlord. Thereafter, Landlord shall
deliver a check to Tenant for the Tenant Improvement Allowance, provided that
Landlord does not dispute any request for payment based on noncompliance of any
work with the "Approved Working Drawings", as that term is defined in Section 2
below, or due to any substandard work, or for any other reason. Landlord's
payment of such amounts shall not be deemed Landlord's approval or acceptance of
the work furnished of materials supplies as set forth in Tenant's payment
request.
(2) Other Terms. Landlord shall only be
obligated to make disbursements from the Tenant Improvement Allowance to the
extent costs are incurred by Tenant for Tenant Improvement Allowance Items
(c) Landlord's Work. Landlord shall be responsible for installing
in the Building (but not in the Premises), at Landlord's sole cost and expense,
a building fire pump, riser for the Building fire sprinkler system, and the
HVAC, plumbing and electrical systems. Notwithstanding the foregoing, Tenant
shall be responsible, at its sole cost and expense, for all sprinkler floor
loops and branch distribution and any installation of HVAC, plumbing or
electrical systems in or around the Premises to the extent such portions of such
systems are intended for the primary benefit of the Premises.
2. CONSTRUCTION DRAWINGS
(a) Selection of Drawings. All such drawings shall be subject to
Landlord's consent which shall not be unreasonably withheld, conditioned or
delayed.
(b) Changes. No material changes, modifications or alterations in
the Plans and Specifications or in the Tenant Improvements ("Change") shall be
made by Tenant without the prior written consent of Landlord, which consent
shall not be unreasonably withheld, conditioned or delayed. Any request by
Tenant for a Change shall be in writing and shall be accompanied by all
information necessary to clearly identify and explain the proposed Change.
Landlord shall notify Tenant in writing of Landlord's approval of disapproval of
such Change within five (5) business days after Landlord's receipt of same. If
Landlord disapproves a change, Tenant shall make the changes necessary and shall
resubmit the Change to Landlord, which Landlord shall approve or disapprove
within two (2) business days after Landlord receives the revised Change. This
procedure shall be repeated until the Change is finally approved by Landlord and
written approval has been delivered to and received by Tenant. Tenant shall bear
the sole cost and expense of Landlord's review and approval of any Change.
3. CONSTRUCTION OF THE TENANT IMPROVEMENTS
(a) Tenant's Selection of Contractors.
(i) The Contractor. A general contractor shall be retained by
Tenant to construct the Tenant Improvements. Such general contractor
("Contractor") shall be subject to the approval of Landlord, which approval
shall not be unreasonably withheld.
(ii) Tenant's Agents. All subcontractors, laborers,
materialmen and suppliers used by Tenant (such subcontractors, laborers,
materialmen, and suppliers, and the Contractor to be known collectively as
"Tenant's Agents".
(b) Construction of Tenant Improvements by Tenant's Agents.
(i) Tenant's Agents,
<PAGE>
(1) Landlord's General Conditions for Tenant's Agents
and Tenant Improvement Work, Tenant's and Tenant's Agent's construction of the
Tenant Improvements shall comply with the following: (1) the Tenant Improvements
shall be, constructed in strict accordance with the Approved Working Drawings;
(ii) Tenant's Agents shall submit schedules of all work relating to the Tenant's
Improvements to Contractor and Contractor shall, within five (5) business days
of receipt thereof/inform Tenant's Agents of any changes which are necessary
thereto, and Tenant's Agents shall adhere to such corrected schedule; and (iii)
Tenant shall abide by all reasonable rules made by Landlord with respect to the
storage of materials, coordination of work with the contractors of other tenants
of the Building, and any other matter in connection with this Agreement,
including, without limitation, the construction of the Tenant Improvements.
(2) lndemnity. Tenant's indemnity of Landlord as set
forth in Section 17 of this Lease shall also apply with respect to any and all
costs, losses, damages, injuries and liabilities related in any way to any act
or omission of Tenant or Tenant's Agents or any directly or indirectly employed
by any of them, or in connection with Tenant's nonpayment of any amount arising
out of the Tenant Improvements and/or Tenant's disapproval of all or any portion
of any request for payment. Further, Tenant release Landlord from any liability
for any and all costs, losses, damages, injuries and liabilities suffered by
Tenant as a result of Landlord's performance or non-performance of any
ministerial acts reasonably necessary (i) to permit Tenant to complete the
Tenant Improvements, and (ii) to enable Tenant to obtain any building permit or
certificate of occupancy for the Premises.
(3) Requirements of Tenant's Agents. Each of Tenant's
Agents shall guarantee to Tenant and for the benefit of Landlord that the
portion of the Tenant Improvements, for which it is responsible shall be free
from any defects in workmanship and materials for a period of not less than one
(1) year from the date of completion thereof. Each of Tenant's Agents shall be
responsible for the replacement or repair, without additional charge, of all
work done or furnished in accordance with its contract that shall become
defective within one (1) year after the later to occur of (i) completion of the
work performed by such contractor or subcontractors and (ii) the Commencement
Date. The correction of such work shall include, without additional charge, all
additional expenses and damages incurred in connection with such removal or
replacement of all or any part of the Tenant Improvements, and/or the Building
and/or common areas that may be damaged or disturbed thereby. All such
warranties or guarantees as to materials or workmanship of or with respect to
the Tenant Improvements shall be contained in the Contract or subcontract and
shall be written such that such guarantees or warranties shall inure to the
benefit of both Landlord and Tenant, as their respective interests may appear,
and can be directly enforced by either. Tenant covenants to give Landlord any
assignment or other assurances which may be necessary to effect such right of
direct enforcement.
(4) Insurance Requirements.
a) General Coverages. All of Tenant's Agents
shall carry worker's compensations insurance covering all of the respective
employees, and shall also carry public liability insurance, including property
damage, all with limits, in form and with companies as are required to be
carried by Tenant as set forth in Section 19 of this Lease.
b) Special Coverages. Tenant shall carry
"Building's All Risk" insurance in an amount equal to the total cost of the
Tenant Improvements, and such other insurance as Landlord may require, it being
understood and agreed that the Tenant Improvements shall be insured by Tenant
pursuant to Section 19 of this Lease immediately upon completion thereof. Such
insurance shall be in amounts and shall include such extended coverage
endorsements as may be reasonably required by Landlord including, but not
limited to, the requirement that all of Tenant's Agents shall carry excess
liability and Products and Completed Operation Coverage insurance, each in
amounts not less that $500.00 per incident, $2,000.000 in aggregate, and in form
and with companies as are required to be carried by Tenant as set forth in
Section 19 of this Lease.
c) General Terms. All insurance required
under this Exhibit C to the Lease shall conform to the requirements set forth in
the Lease. In the event that the tenant Improvements are damaged by any cause
during the course of the construction thereof. Tenant shall immediately repair
the same at Tenant's sole cost and expense. Tenant's Agents shall maintain all
of the foregoing insurance coverage in force until the Tenant Improvements are
fully completed and accepted by Landlord, except for any Products and Completed
Operation Coverage insurance required by Landlord, which is to be maintained for
ten (10) years following completion of the work and acceptance by Landlord and
tenant. All policies carried under this Section 3 shall insure Landlord and
Tenant, as their interests may appear, as well as Contractor and Tenant's
Agents. All insurance, except Worker's Compensation, maintained by tenant's
<PAGE>
Agents shall preclude subrogation claims by the insurer against anyone insured
thereunder. Such insurance shall provide that it is primary insurance as
respects the Landlord and that any other insurance maintained by Landlord is
excess and noncontributing with the insurance required hereunder. The
requirements for the foregoing insurance shall not derogate form the provisions
for indemnification of Landlord by Tenant under Section 3 of this Agreement.
Landlord may, in its discretion, require Tenant to obtain a lien and completion
bond or some alternate form of security satisfactory to Landlord in an amount
sufficient to ensure the lien free completion of the tenant Improvements and
naming Landlord as a co-obligee
(iii) Governmental Compliance. The Tenant Improvements shall
comply in all respects with the following: (1) the building code and other
state, federal city or quasi-governmental laws, codes, ordinances and
regulations, as each may apply according to the rulings of the controlling
public official, agent or other person; (2) applicable standards of the American
Insurance Association (formerly, the National Board of Fire Underwriters) and
the National Electrical Code; and (3) building material manufacturer's
specifications.
(iv) Inspection by Landlord. Landlord shall have the right to
inspect the Tenant Improvements at all times, provided; however, that Landlord's
failure to inspect the Tenant Improvements shall in no event constitute a waiver
of any of Landlord's rights hereunder nor shall Landlord's inspection of the
Tenant Improvements constitute landlord's approval of the same. Should Landlord
disapprove any portion of the Tenant Improvements, Landlord shall notify Tenant
in writing of such disapproval and shall specify the items disapproved. Any
defects or deviations in, and/or disapproval by Landlord of the Tenant
Improvements shall be rectified by Tenant at no expense to Landlord, other than
deviations that do not typically require a change order; provided however, that
in the event Landlord determines that any defect or deviation exists or
disapproves of any matter in connection with any portion of the Tenant
Improvements and such defect, deviation or matter, might adversely affect the
mechanical, electrical, plumbing, heating, ventilation and air-conditioning or
life-safety systems of the Building, the structure or exterior appearance of the
Building or any other tenant's use of such other tenant's leased premises,
Landlord may take such action as Landlord deems necessary, at Tenant's expense
and without incurring any liability on Landlord's part, to correct any such
defect, deviation and/or matter, including without limitation, causing the
cessation of performance of the construction of the Tenant Improvements until
such time as the defect, deviation and/or matter is corrected to Landlord's
satisfaction.
(c) Notice of Completion; Copy of Record Set of Plans. Within ten (10)
days after the completion of construction of the tenant Improvements. Tenant
shall cause a Notice of Completion to be recorded in the office of the Recorder
of the County of San Mateo in accordance with Section 3093 of the Civil Code of
the State of California or any successor statute, and shall furnish a copy
thereof to landlord upon such recordation. If Tenant fails to do so. Landlord
may execute and file the same on behalf of Tenant as Tenant's agent for such
purpose, at Tenant's sole cost and expense. At the conclusion of construction,
(i) Tenant shall cause the Architect and the Contractor (A) to update the
Approved Working Drawings as necessary to reflect all changes made to the
Approved Working Drawings during the course of construction, (B) to certify to
the best of their knowledge that the "record set" of mylar as-built drawings are
true and correct, which certification shall survive the expiration or
termination of this Lease, and (C) to deliver to Landlord two (2) sets of copies
of such record set of drawings within (90) days following issuance of a
certificate of occupancy for the Premises and (ii) Tenant shall deliver to
Landlord a copy of all warranties, guaranties, and operating manuals and
information relating to the improvements, equipment, and systems in the
Premises.
4. MISCELLANEOUS
(a) Time is of the Essence in This Agreement. Unless otherwise
indicated, all references herein to a "number o days" shall mean and refer to
calendar days. If any item requiring approval in timely disapproved by Landlord,
the procedure for preparation of the document and approval thereof shall be
repeated until the documents approved by Landlord.
(b) Tenant's Lease Default. Notwithstanding any provision to the
contrary contained in the Lease, if an event of default as described in Section
38 of the Lease or this Agreement has occurred at any time on or before the
substantial completion of the Premises, then (i) in additional to all other
rights and remedies granted to Landlord pursuant to this Lease. Landlord shall
have the right to withhold payment of all or any portion of the Tenant
Improvement Allowance and/or Landlord may cause Contractor to cease the
construction of the Premises (in which case, Tenant shall be responsible for any
delay in the substantial completion of the Premises (in which case, Tenant shall
be responsible for any delay in the substantial completion of the Premises
caused by such work stoppage), and (ii) all other obligations of
<PAGE>
Landlord under the terms of this Agreement shall be forgiven until such time as
such default is cured pursuant to the terms of this Lease (in which case, Tenant
shall be responsible for any delay in the substantial completion of the Premises
caused by such inaction by Landlord).
(c) Tenant's Agents. All subcontractors, laborers, materialmen, and
suppliers retained directly by Tenant shall conduct their activities in and
around the Premises, in a harmonious relationship with all other subcontractors,
laborers, materialmen and suppliers at the Premises. Building, and, if
necessary, Tenant shall employ union labor to achieve such harmonious relations.
(d) Hazardous Materials. The construction of the Tenant Improvements or
Tenant's move into the Premises will not involve the use of or disturb hazardous
materials or substances existing in the Premises.
(e) Liens. Tenant shall keep the Premises and the Building and the land
upon which the Building is situated free from any liens as described in Section
15 of the Lease.
<PAGE>
EXHIBIT D
RULES AND REGULATIONS FOR THE BUILDING
1. Except as provided or required by Landlord in accordance with building
standards, no sign, placard, picture, advertisement, name or notice shall be
inscribed, displayed, printed, painted or affixed by Tenant on or to any part of
the Building or exterior of the Premises leased to Tenants or to the door or
doors thereof without the written consent of Landlord first obtained 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.
2. Except as provided or required by Landlord in accordance with Building
standards, no draperies, curtains, blinds, shades, screens or other devices
shall be hung at or used in connection with any window or exterior door or doors
of the Premises.
3. The bulletin board or directory of the building shall be used primarily for
display of the name and location of Tenants and Landlord reserves the right to
exclude any other names therefrom, to limit the number of names associated with
Tenants to be placed thereon and to charge for names associated with Tenants to
be placed thereon at rates applicable to all Tenants.
4. The sidewalks, halls, passages, exits, entrances, elevators and stairways of
the Building shall not be obstructed by Tenants or used by them for any purpose
other than for ingress to and egress from their respective Premises. The halls,
passages, exits, entrances, elevators, stairways, balconies and roof of the
Building are not for the use of the general public and Landlord in all cases
reserves the right to control the same and prevent access thereto by all persons
whose presence, in the judgment of the Landlord, is or may be prejudicial to the
safety, character, reputation or interests of the Building and its Tenants;
provided however, that Landlord shall not prevent such access to persons with
whom Tenants deal in the ordinary course of business unless such persons are
engaged in illegal activities. No person shall go upon the roof of the Building
unless expressly so authorized by Landlord.
5. Tenants shall not after any lock nor install any new or additional locks or
any bolts on any interior or exterior door of any Premises leased to Tenant.
6. The doors, windows, light fixtures and any lights or skylights that reflect
or admit light into halls or other places of the Building shall not be covered
or obstructed. The toilet rooms, toilets, 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 or
placed 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, cause such expense.
7. Tenants shall not mark, drive nails, screw or drill into the walls, woodwork
or plaster or in any way deface the Building or any Premises leased to Tenant.
8. Furniture, freight or equipment of every kind shall be moved into or out of
the building only at such times and in such manner as Landlord shall designate.
Landlord may prescribe and limit the weight, size and position of all equipment
to be used by Tenants, other than standard office desks, chairs and tables and
portable office machines. Safes and other heavy equipment shall, if considered
necessary by Landlord, stand on wood strips of such thickness as Landlord deems
necessary to distribute properly the weight thereof. All damage to the building
or Premises occupied by Tenants caused by moving or maintaining any property of
a Tenant shall be repaired at the expense of such Tenant.
9. No Tenant shall employ any person, other than the janitor provided by
Landlord, for the purposes of cleaning the Premises occupied by such Tenant
unless otherwise agreed to by Landlord. Except with the written consent of
Landlord, no person shall be permitted to enter the Building for the purpose of
cleaning the same. Tenants shall not cause any unnecessary labor by carelessness
or indifference in the preservation of good order and cleanliness. Landlord
shall not be responsible to any Tenant for loss of properly on the Premises,
however occurring, or for any damage to the property of any Tenant caused by the
employees or independent contractors of Landlord or by any other person. Janitor
service will not be furnished when rooms are occupied during the regular hours
when janitor service is provided. Window cleaning shall be done only at the
regular and customary times determined by Landlord for such services.
10. No Tenant shall sweep or throw or permit to be swept or thrown any dirt or
other substance into any of the corridors, halls or elevators or out of the
doors or stairways of the Building; use or keep or permit to be used or kept any
foul or noxious gas or substance; permit or suffer the
<PAGE>
Premises occupied by such Tenant to be occupied or used in a manner offensive or
objectionable to Landlord or other Tenants by reason of noise, odors or
vibrations; interfere in anyway with other Tenants or persons having business in
the Building; or bring or keep or permit to be brought or kept in the Building
any animal life form, other than human, except seeing-eye dogs when in the
company of their masters.
11. No cooking shall be done or permitted by Tenants in their respective
Premises, nor shall Premises occupied by Tenants be used for the storage of
merchandise, washing clothes, lodging, or any improper, objectionable or immoral
purposes.
12. No Tenant shall use or keep in the Premises or the Building any kerosene,
gasoline or inflammable or combustible fluid or material other than limited
quantities thereof reasonably necessary for the operation or maintenance of
customary office equipment, or, without Landlord's prior written approval, use
any method of heating or air-conditioning other than that supplied by Landlord.
No Tenant shall use or 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 Landlord or other occupants of
the Building by reason of noise, odors or vibrations, or interfere in any way
with other Tenants or these having business therein. Tenant must comply with any
government imposed codes and regulations concerning the use or storage of any
substances on the Premises.
13. No boring or cutting for telephone or electric wires shall be allowed
without the consent of Landlord and any such wires permitted shall be introduced
at the place and in the manner described by Landlord. The location of
telephones, speakers, fire extinguisher and all other office equipment affixed
to Premises occupied by Tenants shall be subject to the approval of Landlord.
Each Tenant shall pay all expenses incurred in connection with the installation
of its equipment, including any telephone and electricity distribution
equipment.
14. Upon termination of occupancy of the Building, each Tenant shall deliver to
Landlord all keys furnished by Landlord, and any reproductions thereof made by
or at the direction of such Tenant, and in the event of loss of any keys
furnished to Tenant shall pay Landlord therefor
15. No Tenant shall affix any floor covering in any manner except as approved by
the Landlord. The expense of repairing any damage caused by removal of any such
floor covering shall be borne by the Tenant by whom, or by whose contractors,
employees or invitees, the damage shall have been caused.
16. No mail, furniture, packages, supplies, equipment, merchandise or deliveries
of any kind will be received in the building or carried up or down in the
elevators except between such hours and in such elevators as shall be designated
by Landlord.
17. On Saturdays, Sundays and legal holidays and between the hours of 6:00 p.m.
and 8:00 a.m., access to the Building may be refused unless the person seeking
access is known to the person charged with responsibility for the safety and
protection of the Building and has a pass or is properly identified. In no case
shall Landlord be liable for any loss or damage for any error with respect to
the admission to or exclusion from the Building of any person. In case of
invasion, mob, riot, public excitement or other commotion and at such times as
Landlord deems necessary for the safety and protection of the Building, its
Tenants and all property located therein, Landlord may prohibit and prevent
access to the Building by all persons by any means Landlord deems appropriate.
18. Each Tenant shall see that the exterior doors of its Premises are closed and
securely locked on Sundays and legal holidays and not later than 6:00 p.m. of
each other day each Tenant shall exercise extraordinary care and caution that
all water faucets or water apparatus are entirely shut off each day before its
Premises are left unoccupied and that all electricity or gas shall likewise be
carefully shut off so as to prevent waste or damage to Landlord or to other
Tenants of the Building.
19. Landlord may 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
regulations of the Building.
20. The requirements of Tenants will be attended to only upon application to
Landlord at the office of the Building. Employees of Landlord shall not perform
any work outside of their regular duties unless under special instructions from
Landlord, and no employee of Landlord shall be required to admit any person
(Tenant or otherwise) to any Premises in the Building.
<PAGE>
21. No vending or food or beverage dispensing machine or machines of any
description shall be installed, maintained or operated upon any Premise in the
Building without the written permission of the Landlord.
22. Landlord, without notice and without liability to any Tenant, at any time
may change the name or the street address of the Building.
23. The word "Building" as used in these rules and regulations means the
Building of which a part of the Premises are leased pursuant to the Lease to
which these rules and regulations are attached. Each Tenant shall be liable to
Landlord and to each other Tenant of the Building for any loss, cost, expense,
damage or liability, including attorneys' fees, caused or occasioned by the
failure of such first named Tenant to comply with these rules, but Landlord
shall have no liability for such failure or for failing or being unable to
enforce compliance therewith by any Tenant and such failure by Landlord or
noncompliance by any other Tenant shall not be a ground for termination of the
Lease to which these rules and regulations are attached by the Tenant
thereunder.
24. Carpet protector pads shall be used by all desk stations.
25. Each Tenant shall maintain the portions of its Premises which are visible
from the outside of the Building or from hallways or other public areas of the
Building, in a neat, clean and orderly condition.
26. No Tenant shall tamper with or attempt to adjust the temperature control
thermostats in its Premises. Landlord shall adjust such thermostats as required
to maintain heat and air-conditioning at the Building standard temperature.
27. All requests for air-conditioning or heating during hours when such services
are not normally furnished by Landlord must be submitted in writing to the
Building management office by 2:00 p.m. on the preceding Thursday for weekend
service, and by 9:00 a.m. on the preceding business day for holiday service.
28. No Tenant shall place any items whatsoever on the roof or balcony areas of
the Building without prior written consent of Landlord.
29. No curtains, draperies, blinds, shutters, shades, screens, or other
coverings, hangings or decorations shall be attached to, hung or placed in, or
used in connection with any window of the Building without prior written consent
of Landlord. In any event, with the prior written consent of Landlord, such
items shall be installed on the office side of the Landlord's standard window
covering and shall in no way be visible from the exterior of the Building.
30. Intentionally Deleted
31. Except with the prior written consent of Landlord, no Tenant shall sell, or
permit the sale at retail, of newspapers, magazines, periodicals, tickets or any
other goods or merchandise to the general public in or on the Premises, nor
shall any Tenant carry on, or permit or allow any employee or other person to
carry on, the business of stenography, notary, typewriting or similar business
in or from the Premises for the service or accommodation of occupants of any
other portion of the Building, nor shall the Premises of any Tenant be used for
manufacturing of any kind, or any business or activity other than that
specifically provided for in such Tenant's Lease.
32. No Tenant shall install any radio or television antenna, loudspeaker or
other device on the roof or exterior walls of the Building.
33. There shall not be used in any space, or in the public halls of the
Building, either by any Tenant or others, any hand trucks except those equipped
with rubber tires and side guards or such other material handling equipment as
Landlord may approve. No other vehicles of any kind shall be brought by any
Tenant into the Building or kept in or about the Premises.
34. Each Tenant shall store all its trash and garbage within its Premises. No
material shall be placed in the trash boxes or receptacles if such material is
of such nature that it may not be disposed of in the ordinary and customary
manner of removing and disposing of trash and garbage in the City of San
Francisco without being in violation of any law or ordinance governing such
disposal. All garbage and refuse disposal shall be made only through entryways
and elevators provided for such purpose and at such times as Landlord shall
designate.
<PAGE>
35. Canvassing, peddling, soliciting, and distribution of handbills or any other
written materials in or about the Building are prohibited, and each Tenant shall
cooperate to prevent same.
36. While in the Building, Tenant's contractors shall be subject to and under
the control and direction of the manager of the Building or the Building
Engineer (but not as an agent or employee of Landlord or said manager or
engineer).
37. Landlord may waive any one or more of these Rules and Regulations for the
benefit of any particular Tenant or Tenants, but no such waiver by Landlord
shall be construed as a waiver of such Rules and Regulations against any or all
of the Tenants of the Building.
38. These Rules and Regulations are in addition to, and shall not be construed
to in any way modify or amend, in whole or in part, the terms, covenants,
agreements and conditions of any Lease of Premises in the Building.
39. Landlord reserves the right to make such other reasonable rules and
regulations as in its judgment may from time to time be needed for the safety,
care and cleanliness of the Building and for the preservation of good order
therein.
40. Landlord reserves the right to restrict the hours that Tenant may move
its equipment, furniture or other personal property. As a general rule, Tenants
may-only stage move-in and move-out of its suite after building hours.
<PAGE>
EXHIBIT E
APPROVED LETTER OF CREDIT FORM
[LETTERHEAD OF ISSUING BANK]
[MUST BE A BANK WHOSE LOCATION, CREDIT AND PRACTICES LANDLORD HAS APPROVED]
RE: IRREVOCABLE COMMERCIAL LETTER OF CREDIT NO.
TO: 300 California Associates LLC ("Landlord")
1000 Sansome Street, Suite 380
San Francisco, CA 94104
Attn: Michael Halper
We hereby issue our Irrevocable Commercial Letter of Credit in your favor, for
the account of ________("Tenant"), in the amount
of_________________________Dollars ($__________). This amount is available to
you on presentation of your sight draft drawn upon us referring to the above
letter of credit number, date and amount being drawn hereunder, accompanied by
the signed statement of you or your authorized agent._____, that the amount
drawn hereunder is being drawn pursuant to the terms of the Lease Agreement,
dated as of____, by and between Tenant, as tenant, and Landlord, as landlord,
for certain premises located at __ ______, San Francisco. California (the
"Lease").
Any draft presented for payment must be presented on or before___________[TERM
MUST BE FOR AT LEAST ONE YEAR], the date this Letter of Credit expires. Partial
drawings are permitted.
If you sell or otherwise transfer any interest in the "Premises." "Building" or
"Project" (as defined in the Lease), in the land upon which the same is located,
in the Lease, or in Landlord (including consolidations, mergers or other entity
changes), you shall have the right to transfer this Letter of Credit to your
transferee(s), successors or assigns.
We hereby certify that this is an unconditional and irrevocable Letter of Credit
and agree that a draft drawn under and in compliance with the terms hereof will
be honored upon presentation at our office at San Francisco, California.
Except to the extent inconsistent with the express provisions hereof, this
Letter of Credit is subject to and governed by Uniform Customs and Practice for
Documentary Credits (1993 Revision) International Chamber of Commerce
publication number 500.
[NAME OF BANK]
___________________________
<PAGE>
SCHEDULE 1
OPTION TO EXPAND
Tenant shall have a one-time Option to Expand by leasing the entire second floor
of the Building, consisting of approximately 15.246 rentable square feet
(depicted in Exhibit B-2 attached hereto), for a term commencing on the first
day of the twenty-fifth (25") month of the term of this Lease and expiring at
the expiration of the Initial Term of the Lease, upon the following terms:
Tenant shall give written notice to Landlord of Tenant's intention to exercise
its option ("Notice of Intent") and lease the second floor. The Notice of Intent
must be delivered to the Landlord no later than the end of the eighteenth (18th)
month of the Lease term. The Notice of Intent must also be accompanied with a
check equal to the first month's rent for the space.
The Rental Adjustment Schedule in Schedule 3 of the Lease and attached hereto
shall be substituted by the following schedule of rent:
Months 25-36 $168.238 per month
Months 37-48 $172.061 per month
Months 49-60 $175.885 per month
If Tenant fails to submit the Notice of intent by the end of the eighteenth
(18th) month of the Lease term. Landlord shall be free to lease such premises to
any party, without any further obligations to Tenant under this Option to
Expand.
This Option to Expand shall in any event terminate upon the expiration or
earlier termination of this Lease.
<PAGE>
SCHEDULE 2
OPTION TO RENEW
Tenant shall have one (1) option to extend the term of this Lease ("Extension
Option") for an additional five (5) years ("Extended Term"), upon the further
terms and provisions provided below; (i) Tenant shall not be in default at the
time it exercises the Extension Option; (ii) the Lease shall be in full force
and effect at the time the Extension Option is exercised and at the time the
Extended Term is to commence; (iii) Tenant shall have delivered written notice
of its exercise of the Extension Option to Landlord not less than nine (9)
months prior to the expiration of the term of the Lease as specified in
Paragraph 3.
Upon Tenant's exercise of the Extension Option, and subject to the foregoing
conditions, the term of the Lease shall be extended for the Extended Term upon
all the terms and conditions hereof, except that (i) the Base Rent shall be as
provided below, (ii) the Base Year shall be the calendar year in which the
Extended Term commences, (iii) Tenant shall have no right to extend the term of
this Lease beyond the expiration of the Extended Term, and (iv) Tenant shall
take the space in "as-is" condition with no tenant improvements.
Not more than six (6) months nor less than five (5) months prior to the
commencement of the Extended Term. Landlord and Tenant shall meet and attempt in
good faith to determine and mutually agree upon the Base Rent to be paid during
such Extended Term. The Base Rent shall be based on the then fair market rent
for similar office projects in the San Francisco market ("Fair Market Rent").
If, one hundred twenty (120) days prior to the commencement of such Extended
Term, the parties have not reached an agreement, the parties shall enter into an
Appraisal to determine the Base Rent .
The Base Rent shall be determined as provided below. Each party shall appoint an
Appraiser (herein defined) and shall give notice to the other party of the
identity of the Appraiser no later than ninety (90) days prior to the
commencement of the Extended Term. For purposes hereof, "Appraiser" means a real
estate broker or MAI designated appraiser, in either case with not less than
five (5) years of full time commercial appraisal or brokerage experience in San
Francisco County. If either party fails to timely appoint an Appraiser, the sole
Appraiser appointed shall determine the Fair Market Rent to be paid during the
Extended Term. If two appraisers are appointed, they shall immediately meet and
attempt to agree upon the Fair Market Rent. If they are unable to do so within
fifteen (15) days of their first meeting, they shall deliver copies of their
appraisals to each other and thereafter jointly appoint a third Appraiser. The
third appraiser shall, within ten 10 days of his/her appointment, select the
appraisal submitted by the other two appraisers which, in the opinion of the
third appraiser, most accurately states the Fair Market Rent. If the two
Appraisers are unable to agree upon such third Appraiser, either party may
petition the Presiding judge of the Superior Court of San Francisco County to
appoint such third Appraiser.
After the Fair Market Rent has been determined, the rent for the Extended Term
shall be the greater of the following:
(a) the Fair Market Rent, or
(b) the Base Rent and the additional rent for the last year of the Initial Term.
The determination of Base Rent as provided herein shall be binding upon the
parties hereto. Promptly upon such determination, the parties shall execute
an amendment specifying the Base Rent payable during the Extended Term.
<PAGE>
SCHEDULE 3
RENTAL ADJUSTMENT SCHEDULE
The minimum base rent provided for in Paragraph 5 above shall be adjusted as
follows:
Months 1-12 $107.230 per month
Months 13-24 $109.783 per month
Months 25-36 $112.336 per month
Months 37-48 $114.889 per month
Months 49-63 $117.442 per month
<PAGE>
EXHIBIT B
[FLOOR PLAN]
Page 1 of 2
<PAGE>
EXHIBIT B
[FLOOR PLAN]
Page 2 of 2
<PAGE>
EXHIBIT "C"
EXISTING FURNITURE
Follows this page
<PAGE>
PART
CAT QTY NUMBER PART DESCRIPTION
--- --- ------ ----------------
B04 1 G-ZEJ-E-B-4 Bernhardt Gallery table top 24"
top maple
hardware brushed nickel
B04 1 G-ZWL-4 Bernhardt Gallery table base
finish brushed nickel
D04 1 XRCT-42"- 42" DIAMETER ROUND TABLE
BASE #4 WITH WOOD TRIM
RENZ EDGE
FINISHES: 900-OAK TOP AND 1917-
WHITE BASE
HEI 2 E1130.64N +Wall Strip, No Wall Fastener 64H
HEI 1 E1131.16 +Tile Adapter 16H,2/Pkg
HEI 1 E1425.1648 +Tile, Rail 16H 48W
BU +black umber
HEI 10 G7110.16 +Paper Tray 16W
BU +black umber
HEI 10 S7314449 72 X 18 COMMON TOP-WOOD
FINISH STM 566 on Fullcut Maple
<PAGE>
NEWHOUSE EDGE
HEI 6 S7314450 ROUND TOP WITH SOLID WOOD
FINISH STM 566 on Fullcut Maple
NEWHOUSE WATERFALL EDGE
HEI 8 S7314497 L-RETURN TOP 20"D X 53"W
FINISH STM 566 on Fullcut Maple
NEWHOUSE EDGE
NOTE SF RETURN
HEI 9 S7314498 DESK TOP 35.4"D X 74.7"W
FINISH STM 566 on Fullcut Maple
NEWHOUSE EDGE
NOTE SF DESK
HEI 27 S7955035 ABAK Product:RT-GD7 Manager
Finish Black
HEI 21 S7955036 ABAK PRoduct:RT-AC/90-SP
FINISH BLACK
HEI 9 S7955037 ABAK Product:RT-STR20-SP Special
FINISH BLACK
HEI 8 S7955038 ABAK Product:RT-STR16-SP Special
FINISH BLACK
HEI 27 S7955040 End Caps
Finish: Black
<PAGE>
HGN 1 ET103W @Table, Rnd Univ Base Ven
Z5 @maple
BU @black umber
BU @black umber
HST 10 EN122ABS +Wk Chair, Equa 2, Pneu, Knee Tilt, Adj
N2 +no lumbar
BU +black umber
BC +2" hd dbl wl caster, carpet
BK +black
92 +crepe-Pr Cat 2
01 +crepe licorice
HST 10 EN122PBS +Wk Chair, Equa 2, Pneu, Knee
N2 +no lumbar
BU +black umber
BC +2" hd dbl wl caster, carpet
BK +black
92 +crepe-Pr Cat 2
01 +crepe licorice
K 2 KIELHAUER ELGIN CHAIRS - BLACK
LEATHER
MER 1 26-3618-3 +Lateral File Std Pull 3-High 36W
TS +Textured Steel
<PAGE>
91 +white non-metallic
T2 +Square Metal Top 1-1/4
N +Fixed Front 11 - 3/4
9P +Front to Back Hanging
N +Fixed Front 11 - 3/4
9P +Front to Back Hanging
N +Fixed Front 11 - 3/4
9P +Front to Back Hanging
B2 +Base 1-1/2in H
KC +Chrome - Keyed Differently
CB +Counterweight(recommended)
~ +Specification Complete
MER 2 46-3618-29 +Storage Case Std Pull 36W 18D
TS +Textured Steel
BU +black umber non-metallic
NS1 +One Shelf
KC +Chrome - Keyed Differently
T1 +Square Metal Top 1
Y +With Doors
B2 +1-1/2in Base
MER 1 46-4218-26 +Storage Case Std Pull 42W 18D 26-
TS +Textured Steel
BU +black umber non-metallic
NS1 +One Shelf
KC +Chrome - Keyed Differently
T1 +Square Metal Top 1
Y +With Doors
B2 +1-1/2in Base
MER 7 73-1516-PT +Pencil Tray 15W
MER 11 F-16-1518- +Freestanding Ped Std Pull 15W 18D
TS +Textured Steel
BU +black umber non-metallic
T2* +Square Metal Top 1-1/4
B2 +Base 1-1/2
<PAGE>
KC +Chrome - Keyed Differently
CB +Counterweight(recommended)
DC +Delete Compressor
MER 10 F-16-1518- +Freestanding Ped Std Pull 15W 18D
TS +Textured Steel
BU +black umber non-metallic
T2* +Square Metal Top 1-1/4
B2 +Base 1-1/2
KC +Chrome - Keyed Differently
CB +Counterweight(recommended)
DC +Delete Compressor
W04 5 41.1223.22 Table base for 43" Table
Base 22" Diameter
Column 3 inches
Finish Flat Black
Glide #55.4420
Grand Total
<PAGE>
PART
CAT QTY NUMBER PART DESCRIPTION
HA2 1 A4111.3060 +Table, Sq-Edge Lam 30D 60W 29H
LU +soft white
BU +black umber
HCE 2 ZERWD @Vary Easy Etho B-nose Wood Frt
24 @24D
52 @24D 51.5W
9A @W/Cbl Mgmt Trgh-No Gap (Std
RA @Light Ash
BU @Black Umber Supt
HEI 14 E1110.3824 +Frame, Pwr 4-Circ 38H 24W
NN +none
BU +black umber
HEI 6 E1110.3824 +Frame, Npwr No Access 38H 24W
NN +none
BU +black umber
HEI 6 E1110.3830 +Frame, Pwr 4-Circ 38H 30W
NN +none
BU +black umber
HEI 1 E1110.3836 +Frame, Pwr 4-Circ 38H 36W
NN +none
BU +black umber
HEI 1 E1110.3842 +Frame, Pwr 4-Circ 38H 42W
NN +none
BU +black umber
HEI 8 E1110.3848 +Frame, Pwr 4-Circ 38H 48W
<PAGE>
NN +none
BU +black umber
HEI 6 E1110.3848 +Frame, Npwr No Access 38H 48W
NN +none
BU +black umber
HEI 83 E1110.5424 +Frame, Pwr 4-Circ 54H 24W
NN +none
BU +black umber
HEI 103 E1110.5424 +Frame, Npwr No Access 54H 24W
NN +none
BU +black umber
HEI 17 E1110.5430 +Frame, Pwr 4-Circ 54H 30W
NN +none
BU +black umber
HEI 12 E1110.5430 +Frame, Npwr No Access 54H 30W
NN +none
BU +black umber
HEI 62 E1110.5448 +Frame, Pwr 4-Circ 54H 48W
NN +none
BU +black umber
HEI 30 E1110.5448 +Frame, Npwr No Access 54H 48W
NN +none
BU +black umber
HEI 3 E1224.38W @Conn, 2-Way 90, Mono Veneer, Pwr
<PAGE>
RA @light ash
HEI 4 E1224.54W @Conn, 2- WAY 90, Mono Veneer, Pwr
RA @light ash
HEI 31 E1224.54W @Conn, 2- WAY 90, Mono Veneer, Npwr
RA @light ash
HEI 18 E1230.54W @Conn, 3- WAY 90 Wood, Pwr 54H
RA @light ash
BU +black umber
HEI 28 E1230.54W @Conn, 3- WAY 90 Wood, Npwr 54H
RA @light ash
BU +black umber
HEI 18 E1240.54FE @Conn, 4- WAY 90, Pwr 54H
BU +black umber
HEI 6 E1250.38W @Fin End, Wood 38H
RA @light ash
HEI 102 E1250.54W @Fin End, Wood 54H
RA @light ash
HEI 10 E1251.16W @Ch of Ht Fin End Wood 16H
RA @light ash
HEI 206 E1260.24W @Top Cap, Frame Wood 24 W
RA @light ash
HEI 29 E1260.30W @Top Cap, Frame Wood 30W
<PAGE>
RA @light ash
HEI 1 E1260.36W @Top Cap, Frame Wood 36W
RA @light ash
HEI 1 E1260.42W @Top Cap, Frame Wood 42W
RA @light ash
HEI 105 E1260.48W @Top Cap, Frame Wood 48W
RA @light ash
HEI 54 E1260.48W @Top Cap, Frame Wood 48W
RA @light ash
HEI 14 E1311.A +Rcp, 4-Circ A Duplex 6/Pkg
BU +black umber
HEI 15 E1311.B +Rcp, 4-Circ B Duplex 6/Pkg
BU +black umber
HEI 15 E1311.C +Rcp, 4-Circ C Duplex 6/Pkg
BU +black umber
HEI 1 E1311.D +Rcp, 4-Circ D Duplex, Dedicated
BU +black umber
HEI 16 E1322.06E +Power Entry, Ext. Dir Con 4-Circ, 6Ft
L
HEI 7 E1322.06E +Power Entry, Ext. Dir Con 4-Circ, 6Ft
L
<PAGE>
HEI 7 E1322.24E +Power Entry, Ext. Dir Con 4-
Circ, 24Ft L
HEI 1198 E1420.1624 +Tile, Face Vinyl 16H 24W
82 +stipple vinyl-Pr Cat 1
01 +stipple vinyl off white
HEI 200 E1420.1630 +Tile, Face Vinyl 16H 30W
82 +stipple vinyl-Pr Cat 1
01 +stipple vinyl off white
HEI 4 E1420.1636 +Tile, Face Vinyl 16H 36W
82 +stipple vinyl-Pr Cat 1
01 +stipple vinyl off white
HEI 4 E1420.1642 +Tile, Face Vinyl 16H 42W
82 +stipple vinyl-Pr Cat 1
01 +stipple vinyl off white
HEI 527 E1420.1648 +Tile, Face Vinyl 16H 48W
82 +stipple vinyl-Pr Cat 1
01 +stipple vinyl off white
HEI 81 E1422.1648 +Tile, Tackable 16H 48W
COM @customer's own material-Pr Cat 1
TOR Y638
HEI 2 E2280.24W @Support Panel, Wk Surf Wood, End
RA @light ash
BU +black umber
BU +black umber
HEI 4 E2280.24W @Support Panel, Wk Surf Wood, End
RA @light ash
BU +black umber
<PAGE>
BU +black umber
HEI 2 E2280.30W @Support Panel, Wk Surf Wood, End
RA @light ash
BU +black umber
BU +black umber
HEI 16 E2281.W @Support Panel, Wk Surf Wood, Mid-
RA @light ash
BU +black umber
BU +black umber
HEI 2 E2281.W @Support Panel, Wk Surf Wood, Mid-
RA @light ash
BU +black umber
BU +black umber
HEI 31 E2310.2424 @Work Surf, B/Nose Rect
RA @light ash
BU +black umber
SM +on module
HEI 1 E2310.2424 @Work Surf, B/Nose Rect
RA @light ash
BU +black umber
SM +on module
HEI 76 E2310.2448 @Work Surf, B/Nose Rect
RA @light ash
BU +black umber
SM +on module
HEI 69 E2310.2472 @Work Surf, B/Nose Rect
RA @light ash
BU +black umber
<PAGE>
SM +on module
HEI 4 E2310.3030 @Work Surf, B/Nose Rect
RA @light ash
BU +black umber
SM +on module
HEI 6 E2310.3048 @Work Surf, B/Nose Rect
RA @light ash
BU +black umber
SM +on module
HEI 6 E2310.3060 @Work Surf, B/Nose Rect
RA @light ash
BU +black umber
SM +on module
HEI 1 E2310.3084 @Work Surf, B/Nose Rect
RA @light ash
BU +black umber
SM +on module
HEI 2 E2310.3090 @Work Surf, B/Nose Rect
RA @light ash
BU +black umber
SM +on module
HEI 3 E2310.3096 @Work Surf, B/Nose Rect
RA @light ash
BU +black umber
SM +on module
HEI 2 E2332.2448 @Work Surf, B/Nose Cor Wood/Wood
RA @light ash
BU +black umber
<PAGE>
SM +on module
HEI 1 G5010. +Drw, Pencil 21W 16D
BU +black umber
HEI 4 S7314450 ROUND TOP WITH SOLID WOOD
FINISH STM 566 on Fullcut Maple
NEWHOUSE WATERFALL EDGE
HEI 2 S7955048 Trans Surf, Wood 14D 48W
RA RECUT ASH
BU BLACK UMBER
HFS 7 G5120.24 +Ped, B-Frt Stationary 6,6,12 27H
LU +soft white
KD +keyed differently
HST 30 EN122ABS +Wk Chair, Equa 2, Pneu, Knee Tilt, Adj
N2 +no lumbar
BU +black umber
BC +2" hd dbl wl caster, carpet
BK +black
92 +crepe-Pr Cat 2
<PAGE>
01 +crepe licorice
HST 2 EN122PBS +Wk Chair, Equa 2, Pneu, Knee
N2 +no lumbar
BU +black umber
BC +2" hd dbl wl caster, carpet
BK +black
92 +crepe-Pr Cat 2
01 +crepe licorice
MER 26 26-3618-3 +Lateral File Std Pull 3-High 36W
TS +Textured Steel
91 +white non-metallic
T2 +Square Metal Top 1-1/4
N +Fixed Front 11-3/4
9P +Front to Back Hanging
N +Fixed Front 11-3/4
9P +Front to Back Hanging
N +Fixed Front 11-3/4
9P +Front to Back Hanging
B2 +Base 1-1/2in H
KC +Chrome - Keyed Differently
CB +Counterweight( recommended)
~ +Specification Complete
MER 25 26-4218-2 +Lateral File Std Pull 2-High 42W
TS +Textured Steel
91 +white non-metallic
T2 +Square Metal Top 1-1/4
N +Fixed Front 11-3/4
9P +Front to Back Hanging
N +Fixed Front 11-3/4
9P +Front to Back Hanging
B2 +Base 1-1/2in H
KC +Chrome - Keyed Differently
CB +Counterweight(recommended)
<PAGE>
~ +Specification Complete
MER 1 46-4218-26 +Storage Case Std Pull 42W 18D 26-
TS +Textured Steel
BU +black umber non-metallic
NS1 +One Shelf
KC +Chrome - Keyed Differently
T1 +Square Metal Top 1
Y +With Doors
B2 +1-1/2in Base
MER 87 73-1516-PT +Pencil Tray 15W
MER 1 F-16-1518- +Freestanding Ped Std Pull 15W 18D
TS +Textured Steel
91 +white non-metallic
T2* +Square Metal Top 1-1/4
B2 +Base 1-1/2
KC +Chrome - Keyed Differently
CB +Counterweight(recommended)
DC +Delete Compressor
MER 2 F-16-1518- +Freestanding Ped Std Pull 15W 18D
TS +Textured Steel
91 +white non-metallic
T2* +Square Metal Top 1-1/4
B2 +Base 1-1/2
KC +Chrome - Keyed Differently
CB +Counterweight(recommended)
DC +Delete Compressor
MER 94 F-16-1522- +Freestanding Ped Std Pull 15W 22D
TS +Textured Steel
91 +white non-metallic
T2* +Square Metal Top 1-1/4
B2 +Base 1-1/2
KC +Chrome - Keyed Differently
<PAGE>
CB +Counterweight(recommended)
DC +Delete Compressor
MER 67 F-16-1522- +Freestanding Ped Std Pull 15W 22D
TS +Textured Steel
91 +white non-metallic
T2* +Square Metal Top 1-1/4
B2 +Base 1-1/2
KC +Chrome - Keyed Differently
CB +Counterweight(recommended)
DC +Delete Compressor
W04 4 41.1223.22 Table base for 43" Table
Base 22" Diameter
Column 3 inches
Finish Flat Black
Glide #55.4420
<PAGE>
Cat Qty Part Number Part Description
HEI 1 E 1425.1648 +Tile, Rail 16H 48W
BU +black umber
HEI 2 E1130.64N +Wall Strip, No Wall Fastener 64H
HEI 1 E1131.16 +Tile Adapter 16H, 2/Pkg
HEI 10 G7110.16 +Paper Tray 16W
BU +black umber
HEI 6 S7314449 72 X 18 COMMON TOP-WOOD
FINISH STM 566 on Fullcut Maple
NEWHOUSE EDGE
HEI 2 S7314450 ROUND TOP WITH SOLID WOOD EDGE
FINISH STM 566 on Fullcut Maple
NEWHOUSE WATERFALL EDGE
HST 30 EN122ABS +Wk Chair Equa 2, Pneu, Knee Tilt, Adj
N2 +no lumbar
BU +black umber
BC +2" hd dbl wl caster, carpet
BK +black
92 +crepe-Pr Cat 2
01 +crepe licorice
HST 20 EN122PBS +Wk Chair, Equa 2, Pneu, Knee Tilt, Fixed
<PAGE>
N2 +no lumbar
BU +black umber
BC +2" hd dbl wl caster, carpet
BK +black
92 +crepe-Pr Cat 2
01 +crepe licorice
MEC 11 5R6-4220- +Return w/Single Ped, Raised
TS +Textured Steel
BU +black umber non-metallic
TL +Laminate Top/PVC Edge
... Skipped Option
NTG +No Grommets (choose this with an NT top)
KC +Chrome - Keyed Differently
MEC 4 5R6-4220- +Return w/Single Red, Raised
TS +Textured Steel
BU +black umber non-metallic
TL + Laminate Top/PVC Edge
... Skipped Option
NTG +No Grommets (choose this with an NT top)
KC +Chrome - Keyed Differently
MEC 1 5R6-4820- +Return w/Single Red, Raised
TS +Textured Steel
BU +black umber non-metallic
TL +Laminate Top/PVC Edge
... Skipped Option
NTG +No Grommets (choose this with an NT top)
KC +Chrome - Keyed Differently
MEC 1 5R6-4820- +Return w/Single Ped, Raised
TS +Textured Steel
BU +black umber non-metallic
TL +Laminate Top/PVC Edge
... Skipped Option
NTG +No Grommets (choose this with an NT top)
<PAGE>
KC +Chrome - Keyed Differently
MEC 4 5R6-6030- +Desk w/Single Ped, Raised
TS +Textured Steel
BU +black umber non-metallic
TL +Laminate Top/PVC Edge
... Skipped Option
NTG +No Grommets (choose this with an NT top)
KC +Chrome - Keyed Differently
MEC 4 5R6-6030- +Desk w/Single Ped, Raised
TS +Textured Steel
BU +black umber non-metallic
TL +Laminate Top/PVC Edge
... Skipped Option
NTG +No Grommets (choose this with an NT top)
KC +Chrome - Keyed Differently
MEC 1 5R6-6636- +Desk w/Single Ped, Raised
TS +Textured Steel
BU +black umber non-metallic
TL +Laminate Top/PVC Edge
... Skipped Option
NTG +No Grommets (choose this with an NT top)
KC +Chrome - Keyed Differently
MEC 1 5R6-6636- +Desk w/Single Ped, Raised
TS +Textured Steel
BU +black umber non-metallic
TL +Laminate Top/PVC Edge
... Skipped Option
NTG +No Grommets (choose this with an NT top)
KC +Chrome - Keyed Differently
MEC 23 72-2016-SP +Pencil Drawer, Metal, 24D to 36D wksfc
<PAGE>
BU +black umber non-metallic
MER 2 26-4218-2- +Lateral File Std Pull 2 Fxd Frt Dwrs 26-1/4H
TS +Textured Steel
91 +white non-metallic
T2 +Square Metal Top 1 1-1/4
B2 +Base 1-1/2
KC +Chrome - Keyed Differently
CB +Counterweight( recommended)
R +Side-to-Side Filing Rails
MER 1 46-3615-OB- +Bookcase One Adjust Shelf 29H 36W 15D
TS +Textured Steel
91 +white non-metallic
T2 +Standard Metal Top 1-1/4
NS1 +With One Shelf
B2 +1-1/2in Base
MER 1 46-3615-OB- +Bookcase Two Adjust Shelves 42-1/8H 36W
TS +Textured Steel
91 +white non-metallic
T2 +Standard Metal Top 1-1/4
NS2 +With Two Shelves
B2 +1-1/2in Base
MER 2 46-3618-29 +Storage Case Std Pull 36W 18D 29H
TS +Textured Steel
91 +white non-metallic
NS1 +One Shelf
KC +Chrome - Keyed Differently
T2 +Square Edge Metal Top 1-1/4
Y +With Doors
B2 +1-1/2in Base
MER 5 46-4218-26 +Storage Case Std Pull 42W 18D 26-1/4H
TS +Textured Steel
91 +white non-metallic
<PAGE>
NS1 +One Shelf
KC +Chrome - Keyed Differently
T2 +Square Edge Metal Top 1-1/4
Y +With Doors
B2 +1-1/2in Base
MER 12 73-1516-PT +Pencil Tray 15W
MER 17 F-16-1518- +Freestanding Ped Std Pull 15W 18D 26-1/4H
TS +Textured Steel
BU +black umber non-metallic
T2* +Square Metal Top 1-1/4
B2 +Base 1-1/2
KD +Black - Keyed Differently
CB +Counterweight( recommended)
DC +Delete Compressor
MER 18 F-16-1518- +Freestanding Ped Std Pull 15W 18D26-1/4H
TS +Textured Steel
BU +black umber non-metallic
T2* +Square Metal Top 1-1/4
B2 +Base 1-1/2
KD +Black - Keyed Differently
CB +Counterweight(recommended)
DC +Delete Compressor
MER 4 F-16-1522- +Freestanding Ped Std Pull 15W 22D 26-1/4H
TS +Textured Steel
BU +black umber non-metallic
T2* +Square Metal Top 1-1/4
B2 +Base 1-1/2
KD +Black - Keyed Differently
CB +Counterweight(recommended)
DC +Delete Compressor
W04 2 41.1223.22 Table base for 43" Table
Base 22" Diameter
<PAGE>
Column 3 inches
Finish Flat Black
Glide #55.4420
HEI 10 S7314497 L-RETURN TOP 20"D X 53"W
FINISH STM 566 on Fullcut Maple
NEWHOUSE EDGE
NOTE SF RETURN
HEI 14 S7314498 DESK TOP 35.4"D X 74.7"W
FINISH STM 566 on Fullcut Maple
NEWHOUSE EDGE
NOTE SF DESK
HEI 38 S7955035 ABAK Product:RT-GD7 Manager Bases
Finish Black
HEI 10 S7955036 ABAK PRoduct:RT-AC/90-SP Special
FINISH BLACK
HEI 14 S7955037 ABAK Product:RT-STR20-SP Special
<PAGE>
FINISH BLACK
HEI 10 S7955038 ABAK Product:RT-STR16-SP Special
FINISH BLACK
HEI 38 S7955040 End Caps
Finish: Black
B04 1 G-ZEJ-E-B-4 -Bernhardt Gallery table top 24" diameter
top maple
hardware brushed nickel
B04 1 G-ZWL-4 Bernhardt Gallery table base
finish brushed nickel
2 KIELHAUER ELGIN CHAIRS - BLACK
LEATHER
<PAGE>
PART
CAT QTY NUMBER PART DESCRIPTION
--- --- ---------- ------------------------------------
HEI 14 E1110.3824 +Frame, Pwr 4-Circ 38H 24W
NN +none
BU +black umber
HEI 47 E1110.3824 +Frame, Npwr No Access 38H 24W
NN +none
BU +black umber
HEI 11 E1110.3848 +Frame, Npwr No Access 38H 48W
NN +none
BU +black umber
HEI 79 E1110.5424 +Frame, Pwr 4-Circ 54H 24W
NN +none
BU +black umber
HEI 47 E1110.5424 +Frame, Npwr No Access 54H 24W
NN +none
BU +black umber
HEI 78 E1110.5448 +Frame, Pwr 4-Circ 54H 48W
NN +none
BU +black umber
HEI 27 E1224.54W @Conn, 2-Way 90, Mono Veneer, Npwr
<PAGE>
RA @light ash
HEI 14 E1230.54W @Conn, 3-Way 90 Wood, Pwr 54H
RA @light ash
BU +black umber
HEI 28 E1230.54W @Conn, 3-Way 90 Wood, Npwr 54H
RA @light ash
BU +black umber
HEI 14 E1240.54FE +Conn, 4-Way 90, Pwr 54H
BU +black umber
HEI 2 E1250.38W @Fin End, Wood 38H
RA @light ash
HEI 84 E1250.54W @Fin End, Wood 54H
RA @light ash
HEI 25 E1251.16W @Ch of Ht Fin End Wood 16H
RA @light ash
HEI 140 E1260.24W @Top Cap, Frame Wood 24W
RA @light ash
HEI 128 E1260.48W @Top Cap, Frame Wood 48W
RA @light ash
HEI 13 E1311.A +Rcp, 4-Circ A Duplex 6/Pkg
BU +black umber
HEI 13 E1311.B +Rcp, 4-Circ B Duplex 6/Pkg
<PAGE>
BU +black umber
HEI 13 E1311.C +Rcp, 4-Circ C Duplex 6/Pkg
BU +black umber
HEI 1 E1311.D +Rcp, 4-Circ D Duplex, Dedicated
BU +black umber
HEI 7 E1322.06E +Power Entry, Ext. Dir Con 4-Circ, 6Ft
L
HEI 7 E1322.24E +Power Entry, Ext. Dir Con
4-Circ, 24Ft L
HEI 983 E1420.1624 +Tile, Face Vinyl 16H 24W
82 +stipple vinyl-Pr Cat 1
01 +stipple vinyl off white
HEI 440 E1420.1648 +Tile, Face Vinyl 16H 48W
82 +stipple vinyl-Pr Cat 1
01 +stipple vinyl off white
HEI 68 E1422.1648 +Tile,Tackable 16H 48W
COM @customer's own material-Pr Cat 1
TOR Y638
HEI 2 E2280.24W @Support Panel, Wk Surf Wood, End
RA @light ash
BU +black umber
BU +black umber
HEI 28 E2281.W @Support Panel, Wk Surf Wood, Mid-
RA @light ash
BU +black umber
<PAGE>
BU +black umber
HEI 15 E2310.2424 @Work Surf, B/Nose Rect
RA @light ash
BU +black umber
SM +on module
HEI 69 E2310.2448 @Work Surf, B/Nose Rect
RA @light ash
BU +black umber
SM +on module
HEI 70 E2310.2472 @Work Surf, B/Nose Rect
RA @light ash
BU +black umber
SM +on module
HEI 46 S18713-01 24" W WINDOW MULLION LIGHT
1-5 1733.00
6-10 1305.00
11-24 1084.00
25+ 870.00
HEI 46 S2080902 HARDWARE PACK FOR USE W/
BU BLACK UMBER
HEI 4 S7314450 ROUND TOP WITH SOLID WOOD
FINISH STM 566 on Fullcut Maple
NEWHOUSE WATERFALL EDGE
<PAGE>
HST 30 EN122ABS +Wk Chair, Equa 2, Pneu, Knee Tilt, Adj
N2 +no lumbar
BU +black umber
BC +2" hd dbl wl caster, carpet
BK +black
92 +crepe-Pr Cat 2
01 +crepe licorice
MEC 3 5R6-4220- +Return w/Single Ped, Raised
TS +Textured Steel
BU +black umber non-metallic
TL +Laminate Top/PVC Edge
... Skipped Option
NTG +No Grommets (choose this with an
KD +Black - Keyed Differently
MEC 3 5R6-4220- +Return w/Single Ped, Raised
TS +Textured Steel
BU +black umber non-metallic
TL +Laminate Top/PVC Edge
... Skipped Option
NTG +No Grommets (choose this with an
KD +Black - Keyed Differently
MEC 3 5R6-6030- +Desk w/Single Ped, Raised
TS +Textured Steel
BU +black umber non-metallic
TL +Laminate Top/PVC Edge
... Skipped Option
NTG +No Grommets (choose this with an
KD +Black - Keyed Differently
MEC 4 5R6-6030- +Desk w/Single Ped, Raised
<PAGE>
TS +Textured Steel
BU +black umber non-metallic
TL +Laminate Top/PVC Edge
... Skipped Option
NTG +No Grommets (choose this with an
KD +Black - Keyed Differently
MEG 7 72-2016-SP +Pencil Drawer, Metal, 24D to 36D
BU +black umber non-metallic
MER 19 26-3618-3 +Lateral File Std Pull 3-High 36W
TS +Textured Steel
BU +black umber non-metallic
T2 +Square Metal Top 1-1/4
N +Fixed Front 11-3/4
9P +Front to Back Hanging
N +Fixed Front 11-3/4
9P +Front to Back Hanging
N +Fixed Front 11-3/4
9P +Front to Back Hanging
B2 +Base 1-1/2in H
KD +Black - Keyed Differently
CB +Counterweight(recommended)
~ +Specification Complete
MER 25 26-4218-2 +Lateral File Std Pull 2-High 42W
TS +Textured Steel
BU +black umber non-metallic
T2 +Square Metal Top 1-1/4
N +Fixed Front 11-3/4
9P +Front to Back Hanging
N +Fixed Front 11-3/4
9P +Front to Back Hanging
B2 +Base 1-1/2in H
KD +Black - Keyed Differently
CB +Counterweight(recommended)
~ + Specification Complete
<PAGE>
MER 72 F-16-1522- +Freestanding Ped Std Pull 15W22D
TS +Textured Steel
91 +white non-metallic
T2* +Square Metal Top 1-1/4
B2 +Base 1-1/2
KC +Chrome - Keyed Differently
CB +Counterweight(recommended)
DC +Delete Compressor
MER 6 F-16-1522- +Freestanding Ped Std Pull 15W 22D
TS +Textured Steel
91 +white non-metallic
T2* +Square Metal Top 1-1/4
B2 +Base 1-1/2
KC +Chrome - Keyed Differently
CB +Counterweight(recommended)
DC +Delete Compressor
W04 4 41.1223.22 Table base for 43" Table
Base 22" Diameter
Column 3 inches
Finish Flat Black
Glide #55.4420
<PAGE>
EXHIBIT "D-1"
SERVER ROOM EQUIPMENT
DEVICE CISCO PART # DESCRIPTION SERIAL #
---------------- ----------------- ----------------------------- -----------
2nd Floor Switch WS-6509 Chassis and 2 power supplys SCA0401000L
WS-X6K-SUP1-2GE 1000BaseX Supervisor SAD03366407
WS-X6248-RJ-45 10/100BaseTX Ethernet SAD035102F6
WS-X6248-RJ-45 10/100BaseTX Ethernet SAD03465753
WS-X6248-RJ-45 10/100BaseTX Ethernet SAD035103ZL
WS-X6248-RJ-45 10/100BaseTX Ethernet SAD0415059A
WS-X6248-RJ-45 10/100BaseTX Ethernet SAD0416073D
WS-X6248-RJ-45 10/100BaseTX Ethernet SAD041605Z3
WS-X6248-RJ-45 10/100BaseTX Ethernet SAD04220FXK
WS-X6248-RJ-45 10/100BaseTX Ethernet SAD0436065Y
3rd Floor Switch WS-6509 Chassis and 2 power supplys SCA034400SV
WS-X6K-SUP1-2GE 1000BaseX Supervisor SAD03404060
WS-X6248-RJ-45 10/100BaseTX Ethernet SAL04430BT8
WS-X6248-RJ-45 10/100BaseTX Ethernet SAD04290WD5
WS-X6248-RJ-45 10/100BaseTX Ethernet SAD0436063E
WS-X6248-RJ-45 10/100BaseTX Ethernet SAL04451GSF
WS-X6248-RJ-45 10/100BaseTX Ethernet SAD043605FY
WS-X6248-RJ-45 10/100BaseTX Ethernet SAD04280YBK
WS-X6248-RJ-45 10/100BaseTX Ethernet SAL0534ARXO
WS-X6248-RJ-45 10/100BaseTX Ethernet SAD04300S3F
1750 Router C1750 1FE VE Mainboard Port adapter 580227579
Serial WAN module FT1 WAN daughter card 18109973
<PAGE>
EXHIBIT "D-2"
ACCESS CONTROL SYSTEMS
ACCESS CONTROL
Manufacturer Type Location Qty
----------------- ------------------------ ---------------------- ---
Software House APC 8X 2nd Floor Closet 1
Lantronix MSS485-T 2nd Floor Closet 1
HID 5355 Card Readers 2nd and 3rd Floor Area 5
Schlage Lock Hardware 2nd and 3rd Floor Area 5
Software House RM-4 2nd and 3rd Floor Area 5
Detection Systems DS431 Local door alarm 2nd and 3rd Floor Area 2
Miscellaneous Power Supplies and etc.. 2nd and 3rd Floor Area 1
CLOSED CIRCUIT TV
Manufacturer Type Location Qty
----------------- ------------------------ ---------------------- ---
Burle Monitor 14" Color 2nd Floor Closet 1
Robot 16 Channel Multiplexer 2nd Floor Closet 1
Sony Cameras and Mounts 2nd and 3rd Floor Area 16
Panasonic Time Lapse VCR 2nd Floor Closet 1
BURGLAR ALARM
Manufacturer Type Location Qty
----------------- ------------------------ ---------------------- ---
DSC Burglar Alarm Panel 2nd Floor Closet 1
DSC Keypad 2nd Floor Lobby 1