California-San Francisco-1355 Sansome Street Lease - Blue Jeans Equities West and PlanetOut Inc.
LEVI'S PLAZA
1355 SANSOME STREET
OFFICE LEASE
BETWEEN
BLUE JEANS EQUITIES WEST
AS LANDLORD
AND
PLANETOUT INC.
AS TENANT
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TABLE OF CONTENTS
PAGE
1. BASIC LEASE INFORMATION........................................... 1
2. PREMISES.......................................................... 5
3. TERM.............................................................. 5
4. RENT; ADDITIONAL CHARGES.......................................... 5
5. ADDITIONAL CHARGES FOR EXPENSES AND REAL ESTATE TAXES............. 6
6. USE............................................................... 13
7. CONSTRUCTION OF PREMISES; BUILDING CHANGES........................ 13
8. ALTERATIONS....................................................... 13
9. REPAIRS AND MAINTENANCE........................................... 15
10. LIENS............................................................. 16
11. COMPLIANCE WITH LAWS, ENVIRONMENTAL MATTERS AND INSURANCE
REQUIREMENTS............................................... 16
12. SUBORDINATION..................................................... 19
13. INABILITY TO PERFORM.............................................. 19
14. DESTRUCTION....................................................... 20
15. EMINENT DOMAIN.................................................... 21
16. ASSIGNMENT AND SUBLETTING......................................... 22
17. UTILITIES......................................................... 25
18. DEFAULT........................................................... 27
19. LANDLORD'S RIGHT TO CURE TENANT'S DEFAULTS........................ 28
20. MORTGAGEE PROTECTION.............................................. 29
21. INDEMNITY; INSURANCE [UNDER REVIEW BY TENANT'S INSURANCE AND
UNDER REVIEW BY LANDLORD'S INSURANCE]...................... 29
22. LIMITATION OF LANDLORD'S LIABILITY................................ 30
23. ACCESS TO PREMISES................................................ 30
24. NOTICES........................................................... 31
25. NO WAIVER......................................................... 32
26. TENANT'S CERTIFICATES............................................. 32
27. RULES AND REGULATIONS............................................. 33
28. TAXES PAYABLE BY TENANT........................................... 33
29. SECURITY DEPOSIT.................................................. 34
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TABLE OF CONTENTS
(continued)
PAGE
30. AUTHORITY......................................................... 36
31. PUBLIC TRANSIT INFORMATION........................................ 36
32. SIGNAGE AND BUILDING NAMING RIGHTS................................ 36
33. PARKING........................................................... 37
34. BROKERS........................................................... 38
35. OPTION TO EXTEND.................................................. 38
36. AMERICANS WITH DISABILITIES ACT ("ADA") AND SIMILAR ACTS.......... 40
37. HAZARDOUS SUBSTANCE DISCLOSURE.................................... 41
38. NO REPRESENTATIONS BY LANDLORD.................................... 41
39. SURRENDER......................................................... 41
40. LANDLORD'S LIABILITY; SALE OF BUILDING............................ 42
41. SECURITY.......................................................... 42
42. SHUTTLE SERVICE................................................... 43
43. CAFETERIA......................................................... 43
44. RIGHT OF FIRST OFFER.............................................. 44
45. OPTION TO TERMINATE............................................... 45
46. ADDITIONAL SPACE.................................................. 46
47. MISCELLANEOUS..................................................... 46
48. TERMINATION OF LEASE.............................................. 47
EXHIBIT A-1 DESCRIPTION OF LAND............................................... A-1-1
EXHIBIT A-2 PLAT OF LEVI'S PLAZA COMPLEX...................................... A-2-1
EXHIBIT B FLOOR PLAN OF PREMISES............................................ B-1
EXHIBIT C FORM OF NOTICE OF COMMENCEMENT DATE............................... C-1
EXHIBIT D WORK LETTER....................................................... D-1
SCHEDULE 1 CONSTRUCTION SCHEDULE............................................. SCH -1-1
SCHEDULE 2 BUILDING STANDARD WORK............................................ SCH -2-1
EXHIBIT E LEVI'S PLAZA 1355 SANSOME STREET
BUILDING OFFICE LEASE RULES AND REGULATIONS....................... E-1
SCHEDULE 1 JANITORIAL SPECIFICATIONS......................................... E-1
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TABLE OF CONTENTS
(continued)
PAGE
EXHIBIT F FIXTURE, FURNITURE AND EQUIPMENT.................................. F-1
EXHIBIT G FLOOR PLAN OF ADDITIONAL SPACE.................................... G-1
SCHEDULE 5.1 COST OF EARTHQUAKE INSURANCE...................................... G-1
SCHEDULE 11.2 ENVIRONMENTAL REPORTS AND MEMORANDA............................... G-1
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OFFICE LEASE
THIS OFFICE LEASE is entered into as of this 1st day of July, 2004, by and
between BLUE JEANS EQUITIES WEST, a California general partnership ("Landlord"),
and PLANETOUT INC., a Delaware corporation ("Tenant").
R E C I T A L S:
A. Landlord owns that certain land commonly known as Levi's Plaza, located
in the City and County of San Francisco, California and more particularly
described in EXHIBIT A-1 attached hereto (together with the Building (as defined
below) and any and all other buildings and improvements thereon, the "Real
Property").
B. Tenant desires to lease from Landlord and Landlord desires to lease to
Tenant a portion of that certain building commonly known as 1355 Sansome Street,
which building is located at 1355 Sansome Street, San Francisco, California and
is included within Levi's Plaza (the "Building"), and which portion contains
approximately 56,476 square feet of rentable area.
C. As hereinafter used in this Lease, the term "Project" shall mean the
entire Levi's Plaza office complex, including both land and improvements, as
shown on the plat attached hereto as EXHIBIT A-2.
NOW, THEREFORE, Landlord and Tenant hereby covenant and agree as follows:
1. BASIC LEASE INFORMATION
The following is a summary of basic lease information. Each term or matter
in this Article 1 shall be deemed to incorporate all of the terms set forth
hereinbelow pertaining to such matter or item and to the extent there is any
conflict between the provisions of this Article 1 and any more specific
provision of this Lease, such more specific provision shall control.
LEASE DATE: July 01, 2004
BUILDING ADDRESS: 1355 Sansome Street
San Francisco, California 94111
LANDLORD: BLUE JEANS EQUITIES WEST, A CALIFORNIA
GENERAL PARTNERSHIP
ADDRESS OF LANDLORD: c/o Interland-Jalson
155 Greenwich Street
San Francisco, California 94111
Facsimile No: (415) 956-8097
Attention: General Manager
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TENANT: PLANETOUT INC., A DELAWARE CORPORATION
ADDRESS OF TENANT (PRIOR TO 300 California Street
COMMENCEMENT DATE): Suite 200
San Francisco, California 94104
ADDRESS OF TENANT (AFTER 1355 Sansome Street
COMMENCEMENT DATE): San Francisco, California 94104
WITH A COPY OF ANY DEFAULT Howard, Rice, Nemerovski, Canady, Falk &
Rabkin,
NOTICE TO: A Professional Corporation
Three Embarcadero Center
Seventh Floor
San Francisco, California 94111-4024
Attention: Kenneth A. Neale, Esq.
TELEPHONE: (415) 434-1600
FACSIMILE NO.: (415) 217-5910
KEY CONTACT FOR TENANT: Robert Gardina, Director, Facilities and
Administration
TELEPHONE: (415) 834-6375
FACSIMILE NO.: (415) 834-6224
PREMISES: A portion of the First (1st) Floor of the
Building and the entire Second (2nd),
(Article 2) Third (3rd) and Fourth (4th) Floors of
Building.
RENTABLE AREA OF PREMISES: Approximately 56,476 rentable square feet.
PARKING:
(Article 33) Twelve (12) spaces.
TERM: From the Commencement Date (as defined below)
(Article 3) through January 31, 2012 (subject to Tenant's
Option to Extend pursuant to Article 35 and
Tenant's Option to Terminate pursuant to
Article 45).
COMMENCEMENT DATE:
(Article 3) Lease Date
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BASE RENT:
(Article 4)
Lease Total Annual Monthly
Years Base Rent Installments
----- --------- ------------
February 1, 2005 through $702,319 $58,526.58
April 30, 2005* ($21.50 per square
*Subject to Article 4, there foot of rentable
shall be no Base Rent due on space on the 3rd and
(i) the entire Premises until 4th Floors. Rent
February 1, 2005, (ii) the abated on the 2nd
Second (2nd) Floor until May Floor pursuant to
1, 2005, and (iii) the First Article 4)
(1st) Floor until October 1,
2005.
May 1, 2005 through July 31, $1,086,144.50 $90,512.04
2005 ($21.50 per square foot
of rentable space on the
3rd and 4th Floors and
$23.50 per square foot of
rentable space on the 2nd
Floor)
August 1, 2005 through $1,135,143.50 $94,595.29
September 30, 2005 ($22.50 per square foot
of rentable space on the
3rd and 4th Floors and
$24.50 per square foot of
rentable space on the 2nd
Floor)
October 1, 2005 through July $1,318,330.00 $109,860.83
31, 2007 ($22.50 per square foot
of rentable space on the
3rd and 4th Floors and
$24.50 per square foot of
rentable space on the 1st
and 2nd Floors)
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Lease Total Annual Monthly
Years Base Rent Installments
----- --------- ------------
August 1, 2007 through July $1,374,806.00 $114,567.17
31, 2009 ($23.50 per square foot
of rentable space on the
3rd and 4th Floors and
$25.50 per square foot of
rentable space on the 1st
and 2nd Floors)
August 1, 2009 through July $1,431,282.00 $119,273.50
31, 2010 ($24.50 per square foot
of rentable space on the
3rd and 4th Floors and
$26.50 per square foot of
rentable space on the 1st
and 2nd Floors)
August 1, 2010 through $1,487,758.00 $123,979.83
January 31, 2012 ($25.50 per square
foot of rentable space on
the 3rd and 4th Floors
and $27.50 per square
foot of rentable space on
the 1st and 2nd Floors)
BASE YEAR FOR
ADDITIONAL
CHARGES
FOR TAXES AND
EXPENSES: 2005
TENANT'S
SHARE OF
TAXES AND
EXPENSES OF
BUILDING: 90.78%
TENANT'S
SHARE OF
TAXES AND
EXPENSES OF
PROJECT: 6.919%
SECURITY
DEPOSIT:
(Article 29) See Article 29
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OTHER: Option to Extend (Article 35)
Right of First Offer (Article 45)
Option to Terminate (Article 46)
Additional Space (Article 47)
2. PREMISES
Subject to the terms, covenants and conditions set forth in this Lease,
Landlord hereby leases to Tenant and Tenant hereby hires from Landlord those
premises (the "Premises") in the Building which shall be the space enclosed by
the demising walls, and which is approximately delineated on the floor plan or
plans attached hereto as EXHIBIT B. So long as Tenant, or a Tenant Affiliate,
Tenant Successor and/or Business Partner subject to all the terms and
conditions of Sections 16.5 and 16.6 below, occupies at least seventy percent
(70%) of the Building, Tenant shall have the right to maintain a reception
desk in the entrance lobby to the Building. Other then the Base Rent and the
Additional Charges due hereunder, Tenant shall have the right to maintain the
reception desk at no additional charge to Tenant.
3. TERM
3.1 The Premises are leased for a term (the "Term") commencing on the
date hereof (the "Commencement Date") and expiring on January 31, 2012 (the
"Expiration Date"). Landlord shall deliver the entire Premises to Tenant on
the Commencement Date in broom clean condition and free of all personal
property (except that listed on EXHIBIT F). For purposes of determining
whether Tenant has accepted possession the Premises, Tenant shall be deemed to
have done so when Tenant first undertakes construction of the Improvements in
the Premises pursuant to the Work Letter (as defined in Section 7.1 below) or
otherwise moves equipment and/or material into the Premises for construction
purposes. Tenant's acceptance of the Premises shall constitute Tenant's
acknowledgement that the Premises are in the condition called for hereunder,
subject to the representations, warranties and obligations of Landlord
contained herein. Notwithstanding the foregoing, Landlord's delivery of the
portion of the Premises located in the first floor of the Building (the "First
Floor Premises") shall be solely for purposes of allowing Tenant to perform
construction and other acts necessary to prepare such First Floor Premises for
Tenant's occupancy. Tenant shall have no right to occupy the First Floor
Premises until October 1, 2005.
3.2 Promptly following the Commencement Date, Landlord will deliver to
Tenant a notice in substantially the form attached hereto as EXHIBIT C
identifying the Commencement Date and other terms set forth therein ("Notice
of Commencement Date"), a copy of which notice shall be executed by Tenant and
promptly returned to Landlord.
4. RENT; ADDITIONAL CHARGES
4.1 Tenant will pay to Landlord during the Term the annual Base Rent
specified in Article 1 (herein called the "Base Rent") and the Additional
Charges pursuant to Section 4.2 below. The Base Rent will be payable in equal
consecutive monthly installments, as specified in Article 1, on or before the
first day of each month, in advance, at the address specified for Landlord in
Article 1, or such other place as Landlord may designate in writing, without
any
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prior demand and without any deductions or setoff, except as expressly
specified herein; provided, however, that no Base Rent shall be due from
Tenant for (i) the Third (3rd) Floor from the Commencement Date through
February 1, 2005, (ii) the Second (2nd) Floor from the Commencement Date
through April 30, 2005, and (iii) the First (1st) Floor from the Commencement
Date through September 30, 2005. If the Commencement Date occurs on a day
other than the first day of a calendar month, or the Expiration Date occurs on
a day other than the last day of a calendar month, then the rental for such
fractional month will be prorated based on a thirty (30) day month.
4.2 Tenant shall pay to Landlord all charges and other amounts required
under this Lease (herein called "Additional Charges") as additional rent,
including, without limitation, the charges for Taxes and Expenses as provided
for in Article 5. All such Additional Charges will be payable to Landlord as
additional rent at the place where the Base Rent is payable. Landlord will
have the same remedies for a default in the payment of any Additional Charges
as for a default in the payment of Base Rent. In the event no time period for
payment of an Additional Charge is provided under this Lease, such Additional
Charge shall be paid by Tenant within thirty (30) days of its receipt of an
invoice therefor.
4.3 If Tenant fails to pay any Base Rent or Additional Charges within
five (5) days after the date the same is due and payable, such unpaid amounts
will be subject to a late payment charge equal to three percent (3%) of the
unpaid amounts in each instance; provided, however, that there shall be no
late payment fee for the first late payment made by Tenant within a calendar
year, unless such late payment continues for more than five (5) days after
written notice thereof. The late payment charge has been agreed upon by
Landlord and Tenant, after negotiation, as a reasonable estimate of the
additional administrative costs and detriment that will be incurred by
Landlord as a result of any such failure by Tenant, the actual costs thereof
being extremely difficult if not impossible to determine. The late payment
charge constitutes liquidated damages to compensate Landlord for its damages
resulting from such failure to pay and shall be paid to Landlord together with
such unpaid amounts. Acceptance of such late payment charge by Landlord shall
in no event constitute a waiver of Tenant's default with respect to such
overdue amount, nor prevent Landlord from exercising any of the other rights
or remedies granted under this Lease.
4.4 Any amount due to Landlord, if not paid when due, shall bear
interest from the date due until paid at the highest rate legally permitted;
provided that interest shall not be payable on late charges incurred by Tenant
nor on any amounts upon which late charges are paid by Tenant to the extent
such interest would cause the total interest to be in excess of that legally
permitted. Payment of interest shall not excuse or cure any default hereunder
by Tenant.
5. ADDITIONAL CHARGES FOR EXPENSES AND REAL ESTATE TAXES
5.1 For purposes of this Article 5, the following terms shall have the
meanings hereinafter set forth:
(a) "Comparable Buildings" means Class A Office buildings located
in the San Francisco downtown and north waterfront area that are comparable in
size, location, prestige and quality to the Building.
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(b) "Tenant's Share" means (i), with respect to the Building,
90.78%, i.e., the percentage corresponding to a fraction, the numerator of
which is equal to the number of rentable square feet in the Premises and the
denominator of which is equal to the number of rentable square feet in the
Building, which denominator as of the Lease Date is 62,213, and (ii) with
respect to the Project, 6.919%, i.e., the percentage corresponding to a
fraction, the numerator of which is equal to the number of rentable square
feet in the Premises and the denominator of which is equal to the number of
rentable square feet in the Project, which denominator as of the Lease Date is
816,217. Tenant's Share shall be adjusted by Landlord as a result of any
change in the rentable area of the Premises or the total rentable area of the
Building or of the Project.
(c) "Tax Year" means each twelve (12) consecutive month period
commencing January 1st of each year during the Term, including any partial
year during which the Lease may commence; provided that Landlord, upon notice
to Tenant, may change the Tax Year from time to time to any other twelve (12)
consecutive month period and, in the event of any such change, Tenant's Tax
Share of Taxes shall be equitably adjusted for the Tax Year involved in any
such change.
(d) As used in the Lease, the term "Taxes" shall mean all taxes,
assessments and charges levied upon or with respect to the Real Property or
any personal property of Landlord located on the Real Property and used in the
operation thereof or upon or with respect to any ownership or possessory
interest in the Real Property or such personal property. Taxes shall include,
without limitation, all general real property taxes and general and special
assessments, charges, fees, or assessments for transit, housing, police, fire,
or other governmental services or purported benefits to the Real Property or
the occupants thereof, service payments in lieu of taxes, business taxes, and
any tax, fee, or excise on the act of entering into the Lease or any other
lease of space located on the Property, or on the use or occupancy of the Real
Property or any part thereof, or on the rent payable under any lease or in
connection with the business of renting space within the Real Property, that
are now or hereafter levied or assessed against Landlord by the United States
of America, the State of California or any political subdivision thereof,
public corporation, district, or any other political or public entity, and
shall also include any other tax, fee or other excise, however described, that
may be levied or assessed as a substitute for, or as an addition to, in whole
or in part, any other Taxes, whether or not now customary or in the
contemplation of the parties on the Commencement Date. Taxes shall also
include reasonable legal fees, costs, and disbursements incurred in connection
with proceedings to contest, determine, or reduce Taxes (but only if such
fees, costs and disbursements were incurred by Landlord in good faith). In
addition, Taxes shall also include 6.919% of taxes levied and assessed on the
Exterior Common Areas (as defined below), which percentage represent the
Premises' allocable share of such Exterior Common Areas. Taxes shall not
include (a) franchise, transfer, estate, inheritance, or capital gains or
stock taxes or income taxes measured by the net income of Landlord from all
sources unless, due to a change in the method of taxation, any of such taxes
is levied or assessed against Landlord as a substitute for, in whole or in
part, any other tax that would otherwise be included within Taxes, (b)
penalties and interest incurred as a result of Landlord's negligence, failure,
inability or unwillingness to make payments of, and/or to file any tax or
information returns with respect to, any Taxes, when due, (c) any Taxes
directly payable by Tenant or any other tenant within the Building under the
applicable provisions in their respective leases, (d) any items included as
Expenses, and (e) Taxes to the extent such Taxes may be separately allocated
to any underground or above ground parking garage and/or
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other parking facilities associated with the Building or to the extent such
Taxes are levied on revenues from such parking facilities.
(e) "Exterior Common Areas" shall mean those portions of the
Project including, without limitation, the "Park Land" owned or controlled by
Landlord and held for the common use and benefit of the public and all tenants
and owners within the Project, all as designated and delineated on the plat
attached hereto as EXHIBIT A-2 if and so long as such areas are privately
owned or controlled and held for such mutual benefit but excluding any portion
thereof devoted to commercial or other revenue producing purposes.
(f) "Expense Year" means each twelve (12) consecutive month period
commencing January 1st of each year during the Term, including any partial
year during which the Lease may commence; provided that Landlord, upon notice
to Tenant, may change the Expense Year from time to time to any other twelve
(12) consecutive month period and, in the event of any such change, Tenant's
Expense Share of Expenses shall be equitably adjusted for the Expense Year
involved in any such change.
(g) Subject to the provisions of Subsection (g) below, "Expenses"
shall mean and include the total commercially reasonable costs and expenses
paid or incurred by Landlord in connection with the management, operation,
maintenance and repair of the Building and Project (including common areas but
excluding parking and storage areas), including, without limitation:
[with respect to the Building]
(i) the cost of air conditioning, electricity, steam, water,
heating, mechanical, telephone, plumbing, ventilating and elevator systems and
all other utilities; (ii) the cost of repairs and all labor and material costs
related thereto, and the cost of general maintenance, cleaning and service
contracts and the cost of all supplies, tools and equipment required in
connection therewith;
[with respect to the Project]
(ii) the cost incurred by Landlord for all insurance carried
on the Real Property or in connection with the use and/or occupancy thereof,
including, without limitation, the premiums and cost of fire, casualty,
liability, rental abatement, terrorism and earthquake insurance applicable to
the Real Property and Landlord's personal property used in connection
therewith (and all amounts paid as a result of loss sustained that would be
covered by such policies except for "deductible" and self insured retention
provisions), provided, however, that (1) Landlord may, but shall not be
obligated to, carry terrorism or earthquake insurance, (2) Expenses in any
calendar year after the Base Year shall include the cost of terrorism
insurance only if terrorism insurance was carried on the Real Property in the
Base Year, and (3) if Landlord does not carry earthquake insurance on the Real
Property in the Base Year and Landlord begins to carry earthquake insurance on
the Real Property in any subsequent year of the Term, then Landlord shall, for
each Expense Year that Landlord carries earthquake insurance, recalculate the
Base Year as if the cost incurred by Landlord for the insurance carried on the
Real Property included one (1) of the four (4) costs of earthquake insurance
listed on SCHEDULE 5.1 attached
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(Landlord shall use the cost on SCHEDULE 5.1 that corresponds to the
earthquake insurance type and limits that are most similar to the earthquake
insurance type and limits carried by Landlord in the first Expense Year
Landlord begins to carry earthquake insurance); (iii) wages, salaries, payroll
taxes and other labor costs and employee benefits; (iv) management fees; (v)
fees, charges and other costs of all independent contractors engaged by
Landlord; (vi) accounting and legal expenses; (vii) depreciation on personal
property, including, without limitation, carpeting in public corridors and the
common areas and window coverings provided by Landlord, determined in the
reasonable judgment of Landlord and in keeping with generally accepted
accounting principles that are consistent with industry standards and sound
management practices then being followed by the owners of Comparable
Buildings; (viii) the rental paid for the office of the property manager and
related management and operations personnel, or if rental is not paid, the
fair rental value of any space provided for such purposes; (ix) the cost of
any capital improvements made to the Real Property after the Commencement Date
that (1) are reasonably anticipated to reduce Expenses or improve operating
efficiencies (but only to the extent Landlord incurs such expenses in good
faith), or (2) are reasonably required for the health and safety of tenants or
the public, or (3) are required under any governmental law or regulation or
insurance requirement that was not applicable to the Real Property prior to
the Commencement Date, such cost to be amortized over the useful life of such
capital improvement as determined under generally accepted accounting
principles that are consistent with industry standards and sound management
practices then being followed by the owners of Comparable Buildings, together
with interest on the unamortized balance thereof at the rate of ten percent
(10%) per annum or such higher rate as may have been paid by Landlord on funds
borrowed for the purpose of constructing such capital improvements; (x) the
cost of contesting the validity or applicability of any governmental
enactments which may affect Expenses, (xi) the costs of operating, maintaining
and repairing the Exterior Common Areas; and (xii) any other expenses of any
kind whatsoever incurred in connection with the management, operation,
maintenance and repair of the Real Property and which, in the reasonable
judgment of Landlord and in keeping with generally accepted accounting
principles that are consistent with industry standards and sound management
practices for comparable properties, would be considered a management,
maintenance, repair or operating expense.
Expenses that cover a period of time not within the Term (including any
extended term) of the Lease shall be prorated on the basis of a 365-day year
and the actual number of days in any applicable month.
(h) Notwithstanding anything to the contrary contained in this
Lease, none of the following items shall be included in Expenses:
(i) The overhead and other costs associated with the
operation of the business or the ownership entity which constitutes Landlord,
unless related solely to Building operations;
(ii) All costs incurred in designing, renovating or
otherwise improving or decorating, painting or redecorating space for existing
or prospective tenants or other occupants of the Building and any allowances
therefor;
(iii) Any reserves for capital replacements;
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(iv) Costs in connection with services or other benefits
which are provided exclusively to another tenant or occupant and not to Tenant
and which do not benefit Tenant;
(v) Costs for all items and services for which Tenant or
other tenants or occupants reimburse Landlord or reimburse or pay third
parties or which Landlord provides selectively to one or more tenants or
occupants of the Building (other than Tenant) without reimbursement;
(vi) Depreciation or amortization (except to the extent
specifically provided in Subsection (f) above);
(vii) Payments in respect to overhead or profits to
subsidiaries or affiliates of Landlord, or to any party affiliated with
Landlord, for management or other services in or to the Building, or for
supplies or other materials, to the extent that the cost of such services,
supplies, or materials exceeds the fair market cost that would be charged by
non-affiliated third parties dealing with Landlord on an arms-length basis;
(viii) Costs of repair or replacement of any item paid for
pursuant to any warranty, insurance or guaranty;
(ix) Any fines, penalties or interest resulting from
Landlord's violation of any federal, state or local law or regulation or due
to late payment by Landlord of any Expenses;
(x) Any operating costs incurred in connection with any
space within the Project that is used for parking, retail, hotel, or
restaurant operation;
(xi) Expenses for sculptures, paintings, or other objects of
art, except to the extent that such objects are required by a governmental or
other regulatory body having jurisdiction over the Real Property;
(xii) Property management fees for the Building in excess
for the relevant calendar year of the lesser of (a) the current management
contract amount, or (b) four percent (4%) of gross rents of the Building
(exclusive of tenant reimbursements and ancillary income from tenants such as
income from antennae, satellite discs, parking, security deposits and interest
thereon); provided, however, that if the percentage of gross rents used to
calculate the property management fee in any Expense Year varies from the
percentage of gross rents used to calculate the property management fee in the
Base Year, then for such Expense Year, Landlord shall be required to
recalculate the Base Year using the same percentage of gross rents used to
determine the property management fees in the Expense Year;
(xiii) Except as specifically provided in Subsection (g)
above, costs of capital improvements and capital replacements;
(xiv) Financing and refinancing costs, rents payable under a
master lease or ground lease by Landlord, and mortgage interest and mortgage
payments due under any mortgage or deed of trust encumbering the Project or
any part thereof;
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(xv) Costs and expenses incurred in connection with leasing
or re-leasing space in the Project such as commissions, space planning,
architectural, engineering, attorneys' fees, advertising costs, the cost of
tenant improvements and tenant improvement allowances, tenant concessions and
promotional expenses;
(xvi) Costs and expenses incurred in connection with the
termination, modification or enforcement of leases and disputes with tenants
in the Building, lenders or other contractors, including without limitation,
court costs, attorneys' fees and disbursements;
(xvii) Damages and costs related to construction or design
defects existing on the Premises or the Building (or any portion thereof)
prior to the Commencement Date, or costs incurred in bringing the Premises or
the Building (or any portion thereof) into compliance with applicable codes or
regulations if the Premises was not in compliance with such codes or
regulations prior to the Commencement Date, provided, however, that in no
event shall Tenant's responsibility under the Work Letter be limited by this
Section 5.1(h)(xvii);
(xviii) Costs incurred in connection with or otherwise
associated with any clean up, removal or remediation of Hazardous Materials
located on or about the Project, provided, however, that in no event shall
Tenant's responsibility under Section 11.2 hereof be limited by this Section
5.1(h)(xviii);
(xix) Costs of salaries, benefits and other compensation to
employees above the grade of general manager;
(xx) Political or charitable contributions;
(xxi) Costs of installing, operating and maintaining a
specialty improvement, including without limitation, an observatory,
broadcasting, cafeteria or athletic, luncheon or recreational club;
(xxii) Costs arising out of the intentional or negligent
acts or omissions of Landlord or its agents, representatives or contractors;
(xxiii) Bad debt loss, rent loss or reserves therefor; and
(xxiv) Amounts in excess of one hundred percent (100%) of
actual Operating Expenses.
(i) If the Building is not one hundred percent (100%) occupied
during all or any portion of any Expense Year including the Base Year (as
defined in Article 1), then Landlord shall make an appropriate adjustment, in
accordance with industry standards and sound management practices, of the
Expenses and Taxes for each such Expense Year to determine what the Expenses
and Taxes would have been for such year if the Building had been one hundred
percent (100%) occupied, and the amount so determined shall be deemed to be
the amount of Expenses and Taxes for such year. Such adjustment shall be made
by Landlord by increasing those costs included in the Expenses and/or Taxes
which, according to industry standards and sound management practices, vary
based upon the level of occupancy of the Building.
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(j) In no event may Landlord include the same item of cost or
expenses more than once in the Expenses.
(k) Despite any other provision of this Lease to the contrary, the
amount of Taxes for the Base Year and any other Tax Year after the Base Year
shall be calculated without taking into account any decreases in real estate
taxes obtained in connection with Revenue and Taxation Code Section 51
("Proposition 8 Reduction"). Therefore, the Taxes in the Base Year or any Tax
Year after the Base Year may be greater than those actually incurred by
Landlord but shall nonetheless be the Taxes for purposes of this Section 5.
5.2 (a) Tenant shall pay to Landlord as Additional Charges one twelfth
(1/12) of Tenant's Share of the increase in the Expenses for each Expense Year
or portion thereof during the Term after the Base Year when compared to
Expenses for the Base Year (the "Expense Increases"), in advance, on or before
the first day of each month during such Expense Year, in an amount estimated
by Landlord in a writing delivered to Tenant. Landlord may revise such
estimates from time to time and Tenant will thereafter make payments on the
basis of such revised estimates.
(a) Tenant shall pay to Landlord as Additional Charges one twelfth
(1/12) of Tenant's Share of the increases in the Taxes for each Tax Year or
portion thereof during the Term after the Base Year when compared to the Taxes
for the Base Year (the "Tax Increases") in advance, on or before the first day
of each month during such Tax Year, in an amount estimated by Landlord in a
writing delivered to Tenant. Landlord may revise such estimates from time to
time, and Tenant will thereafter make payments on the basis of such revised
estimates.
5.3 With reasonable promptness after the expiration of each
Expense Year and Tax Year (but in no event later than June 30 of such year),
including the Expense Year and Tax Year during which this Lease terminates,
Landlord will furnish Tenant with a statement (herein called "Landlord's
Expense and Tax Statement"), prepared by an independent certified public
accountant, setting forth in reasonable detail the Expenses and Taxes for such
Expense Year and Tax Year and Tenant's Share of the Tax Increases and Expense
Increases. If the total of Tenant's Share of the actual Expense Increase and
Tax Increase for such Expense Year and Tax Year as set forth in Landlord's
Expense and Tax Statement exceeds the total estimated Expense Increase and Tax
Increase paid by Tenant for such Expense Year and Tax Year, Tenant shall pay
to Landlord (whether or not this Lease has terminated) the difference within
thirty (30) days after the receipt of Landlord's Expense and Tax Statement;
and if the total amount paid by Tenant for any such Expense Year and Tax Year
shall exceed Tenant's Share of the actual Expense Increase and Tax Increase
for such Expense Year and Tax Year, such excess shall be credited against the
next installments of Base Rent or Expenses and Taxes due from Tenant to
Landlord hereunder, or, if this Lease has terminated and no amounts are due or
to become due to Landlord from Tenant hereunder, any excess shall be paid to
Tenant by check within thirty (30) days after such final determination of the
actual Expenses and Taxes.
5.4 If the Expiration Date shall occur on a date other than the first or
last day, respectively, of a Tax Year and/or Expense Year, Tenant's Tax Share
of Taxes and/or Tenant's Expense Share of Expenses for the Tax Year and/or
Expense Year in which the Expiration Date
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occurs shall be prorated based on a 365-day year, but shall remain subject to
adjustment based on receipt of information after the Expiration Date.
5.5 All statements of Expenses paid during the any Expense Year provided
by Landlord to Tenant herein shall be accompanied by a reasonably detailed
itemized accounting certified by a duly licensed certified public accounting
firm. If Tenant shall not object in writing to the contents of any such
accounting within six (6) months of Tenant's receipt thereof, such statement
shall be conclusive and binding upon Tenant. If Tenant objects to any item in
such accounting within six (6) months of Tenant's receipt thereof, Landlord
shall provide Tenant with a statement certified by Landlord that provides
supplemental detailed verification of any contested item.
5.6 Notwithstanding anything to the contrary contained in this Lease,
Tenant shall have the right to access and use the Building's condenser water
and loop free of charge during the Term.
6. USE
Tenant shall use the Premises during the Term of this Lease solely for
general office use and for purposes incidental thereto, and for no other use
or uses. Tenant's use of the Premises shall in all respects and at all times
comply with applicable laws, statutes and regulations, at Tenant's sole cost
and expense.
7. CONSTRUCTION OF PREMISES; BUILDING CHANGES
7.1 Tenant shall perform the work and make the installations in the
Premises pursuant to the terms and conditions set forth in EXHIBIT D hereto
(such work and installations are herein called the "Improvements" and EXHIBIT
D is herein called the "Work Letter").
7.2 Landlord reserves the right, at any time and from time to time, to
make alterations, additions, repairs or improvements to or in or to decrease
the size or area of all or any part of the Building, the fixtures and
equipment therein and the arcades, plazas and walkways outside the Building,
including, without limitation, the heating, ventilating, air-conditioning,
plumbing, electrical, fire protection, life safety, security and other
mechanical, electrical and communications systems of the Building (herein
called "the Building Systems"), the common areas and all other parts of the
Building, and to change the arrangement and/or location of entrances or
passageways, doors and doorways, corridors, elevators, stairs, toilets and
other public parts of the Building, provided that any such alterations or
additions not necessitated by governmental action shall not materially
diminish the quality or quantity of services being provided to the Premises or
Tenant or adversely affect the functional utilization of or access to the
Premises.
8. ALTERATIONS
8.1 Tenant shall have the right at any time and from time to time, at
Tenant's sole cost and expense, to remodel, redecorate and make such
alterations or improvements (collectively, "Alterations") in and to the
Premises as may be reasonably required or desired by Tenant; provided,
however, that, except as provided in the Work Letter, Tenant shall not,
without
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the prior written consent of Landlord, which consent shall not be unreasonably
withheld, make any Alterations to the Premises which: (a) will materially
affect the structure or structural components of the Building (including by
way of illustration but not limitation, the construction of interior
stairwells, skylights, dumbwaiters and additional floor supports), or the
Building Systems, (b) will be visible from the exterior of the Building, (c)
will be located outside or underneath the Building, or (d) will lessen the
fair market value of the Building (a "Major Improvement"). In the event the
Alterations proposed by Tenant included a Major Improvement, then, in addition
to requiring the consent of Landlord as hereinabove provided, the construction
of any such Major Improvement by Tenant shall also be subject to Landlord's
right to require Tenant to remove any such Major Improvement at the expiration
or earlier termination of the term of this Lease. As a condition to Landlord
having such removal right, Landlord must notify Tenant at the time of its
consent to any Major Improvement whether Landlord shall require such removal
upon the expiration or earlier termination of this Lease. Except for
Landlord's Work (as defined in the Work Letter, Tenant shall be responsible
for the cost of any additional alterations and improvements (including,
without limitation, structural alterations and alterations which affect
Building Systems) required by law to be made to or in the Building as a result
of any Alterations. All Alterations shall be done by contractors reasonably
acceptable to Landlord at Tenant's expense (including hard and soft costs), in
accordance with plans and specifications reasonably approved by Landlord, and
subject to all other conditions which Landlord may reasonably impose. If, at
Tenant's request, Landlord does any Alterations on behalf of Tenant,
Landlord's proposed general contractor for Alterations shall be subject to
Tenant's written approval, which approval shall not be unreasonably withheld
or delayed. Tenant shall reimburse Landlord within fifteen (15) days of demand
for third party costs actually incurred by Landlord with respect to such
Alterations. Upon completion of any Alterations, Tenant shall provide to
Landlord at Tenant's expense "as-built" plans and specifications.
8.2 Except as provided in Section 8.3 or as otherwise provided in the
Work Letter, all appurtenances, fixtures, improvements, equipment, additions
and other property attached to or installed in the Premises at the
commencement of or during the Term shall be and remain the property of
Landlord and shall not be removed by Tenant except pursuant to the
Improvements or any Alterations. Upon commencement of the Term, Tenant shall
be permitted to use, at no additional cost to Tenant, the furniture, fixtures
and equipment identified on EXHIBIT F and currently located on the Third (3rd)
Floor the Premises (the "FF&E"). Tenant accepts the FF&E in its current as-is
condition, without representation or warranty by Landlord of any kind
whatsoever. Tenant shall not make any alterations or modifications to the FF&E
(except in accordance with manufacturer's recommendations) and shall maintain
the FF&E in the same condition as received, reasonable wear and tear and
damage due to casualty excepted. At any time on or before the Expiration Date,
Tenant shall have the right to purchase the FF&E for the sum of One Dollar
($1). Landlord hereby agrees to use good faith efforts to assist Tenant in
arranging a purchase of the furniture, fixtures and equipment located on the
Second (2nd) Floor and owned by Mpower; provided, however, that Landlord shall
not be responsible for or liable to Tenant if Mpower and Tenant are unable to
reach agreement on the terms of such a purchase.
8.3 All furniture, furnishings and articles of movable personal property
installed in the Premises by or for the account of Tenant, without expense to
Landlord, and which can be removed without structural or other material damage
to the Building (all of which are herein called "Tenant's Property") shall be
and remain the property of Tenant and may be removed by it
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at any time during the Term; provided, however, that any equipment or property
for which Landlord has granted any allowance or credit to Tenant or which is a
replacement for items originally provided by Landlord at Landlord's expense
shall not be considered Tenant's Property unless Landlord so designates. Upon
review by Landlord of the final plans for any subsequent Alterations, Landlord
shall notify Tenant which portions of said subsequent Alterations, if any,
reasonably constitute Tenant's Property. Upon the termination of this Lease,
Tenant shall remove from the Premises all of Tenant's Property. Tenant shall
repair or pay the cost of repairing any damage to the Premises or to the
Building resulting from such removal. Tenant's obligations under this Section
8.3 shall survive the termination of this Lease. Any items of Tenant's
Property which shall remain in the Premises after the termination of this
Lease may, at the option of Landlord, be deemed abandoned and in such case may
either be retained by Landlord as its property or be disposed of, without
accountability, at Tenant's expense in such manner as Landlord may see fit.
9. REPAIRS AND MAINTENANCE
9.1 Landlord will repair and maintain the structural portions (including
roofs and roofing systems and membranes, exterior walls, foundations, and
structural supports) of the Building, the Building Systems and the common
areas of the Project (including the Building) in good working order and in a
clean, efficient, safe and sanitary condition and consistent with first-class,
institutionally owned office buildings in the San Francisco financial and
north waterfront districts, provided that, subject to Section 21.5, Tenant
shall be obligated to reimburse Landlord for the entire cost of any repair or
maintenance if necessitated or occasioned by the negligent acts or omissions
or willful misconduct of Tenant, or any of its servants, employees,
contractors, agents, visitors or licensees. Except as otherwise provided in
the Lease, including the first sentence of this Section 9.1., Tenant shall
take good care of the Premises and keep the Premises in good working order and
in a clean, safe and sanitary condition. Tenant hereby waives and releases any
right it may have to make repairs at Landlord's expense under Sections 1941
and 1942 of the California Civil Code or under any similar law, statute or
ordinance now or hereafter in effect.
9.2 All repairs and replacements by Tenant shall be made and performed:
(a) at Tenant's cost and expense and at such time and in such manner as
Landlord may reasonably designate, (b) by contractors or mechanics reasonably
approved by Landlord, (c) so that same shall be at least equal in quality,
value and utility to the original work or installation, and (d) in a manner
and using equipment and materials which will not interfere with or impair the
operations, use or occupation of the Building Systems, the Building or other
tenants or common areas of the Project, and (e) in accordance with the Rules
and Regulations for the Building adopted by Landlord from time to time and all
applicable laws and regulations of governmental authorities having
jurisdiction over the Premises. Tenant shall reimburse Landlord within fifteen
(15) days of demand for any expenses incurred by Landlord in connection with
any repairs or replacements required to be made by Tenant, including, without
limitation, any reasonable fees charged by Landlord's contractors to review
plans and specifications prepared by Tenant.
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10. LIENS
10.1 Tenant shall keep the Premises free from any liens arising out of
any work performed, material furnished or obligations incurred by or for
Tenant. In the event that Tenant shall not, within fifteen (15) days following
the imposition of any such lien, cause the lien to be released of record by
payment or posting of a proper bond, Landlord shall have in addition to all
other remedies provided herein and by law the right but not the obligation to
cause same to be released by such means as it shall deem proper, including
payment of the claim giving rise to such lien. All such sums paid by Landlord
and all expenses incurred by it in connection therewith (including, without
limitation, reasonable counsel fees) shall be payable to Landlord by Tenant
upon demand. Landlord shall have the right at all times to post and keep
posted on the Premises any notices permitted or required by law or that
Landlord shall deem proper for the protection of Landlord, the Premises, and
the Building, from mechanics' and materialmen's liens. Tenant shall give to
Landlord at least five (5) business days' prior written notice of commencement
of any repair or construction on the Premises.
11. COMPLIANCE WITH LAWS, ENVIRONMENTAL MATTERS AND INSURANCE REQUIREMENTS
11.1 Tenant, at Tenant's cost and expense, shall comply with all laws,
orders and regulations of federal, state, county and municipal authorities
relating to the Premises or the use, improvement or occupancy thereof, except
that Tenant shall not be required to make any structural alterations or other
modifications in order to comply unless such alterations shall be necessitated
or occasioned, in whole or in part, by Tenant's Alterations, or by the
negligent acts or omissions or intentional misconduct of Tenant or its
servants, employees, contractors, agents, visitors or licensees. Any work or
installations made or performed by or on behalf of Tenant or any person or
entity claiming through or under Tenant pursuant to the provisions of this
Article 11 shall be made in conformity with and subject to the provisions of
Section 9.2.
11.2 (a) As used herein, the following items shall have the following
meanings: "Environmental Activity" means any actual, proposed or threatened
use, storage, treatment, existence, release, emission, discharge, generation,
manufacture, disposal or transportation of any Hazardous Materials from, into,
on, under or about the Building or the Premises, or any other activity or
occurrence that causes or would cause any such event to exist; "Environmental
Requirements" means all present and future federal, state, regional or local
laws relating to the use, storage, treatment, existence, release, emission,
discharge, generation, manufacture, disposal or transportation of any
Hazardous Materials; and "Hazardous Material" means at any time any substances
or materials which at such time are classified or considered to be hazardous
or toxic under any Environmental Requirement.
(b) Tenant shall not engage in nor permit the occurrence of any
Environmental Activity, except with respect to the use of small quantities of
Hazardous Materials, as may be present in ordinary office supplies and
equipment. Tenant shall, at its own expense, procure, maintain in effect and
comply with all conditions of any and all permits, licenses, and other
governmental and regulatory approvals required under any Environmental
Requirements for any Environmental Activity by Tenant, including, without
limitation, the discharge of (appropriately treated) materials or wastes into
or through any sanitary sewer
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serving the Building or the Premises, and upon termination of this Lease
Tenant shall cause all of its Hazardous Materials to be removed from the
Building and the Premises in accordance with and in compliance with all
applicable Environmental Requirements. Upon having knowledge thereof, Tenant
shall immediately notify Landlord in writing of: any regulatory action that
has been instituted, or threatened by any governmental agency or court with
respect to Tenant that relates to any Environmental Activity; any claim
relating to any Environmental Activity by Tenant in, on or about the Building
or the Premises, or that arises out of or in connection with any Hazardous
Materials in, on, under or about the Building or the Premises or removed from
the Building or the Premises; or any actual or threatened material release on,
under or about the Building or the Premises or any adjacent property of any
Hazardous Material, except any Hazardous Material whose discharge or emission
is expressly authorized by and in compliance with a permit issued by a
federal, state, regional or local governmental agency pursuant to
Environmental Requirements. Tenant shall provide Landlord with copies of any
communications with federal, state, regional or local governments, agencies or
courts with respect to any Environmental Activity or Environmental Requirement
relating to the Building or the Premises and any communications with any third
party relating to any claim made or threatened with respect to any
Environmental Activity by Tenant in, on or about the Building or the Premises.
(c) Tenant shall indemnify, defend (by counsel reasonably
acceptable to Landlord), protect, and hold Landlord and each of Landlord's
partners, employees, agents, successors and assigns, free and harmless from
and against any and all claims, liabilities, penalties, forfeitures, losses or
expenses (including reasonable attorneys' fees) arising from or caused in
whole or in part, directly or indirectly, by (i) an Environmental Activity by
Tenant, or (ii) Tenant's failure to comply with any Environmental Requirement.
Tenant's obligations under this Section 11.2 shall include, without
limitation, and whether foreseeable or unforeseeable, all costs of any repair,
damage or cleanup, removal or remediation action, or detoxification or
decontamination of the Building or the Premises, or the preparation and
implementation of any closure, remedial action or other plans in connection
therewith that are required as a result of any Environmental Activity by
Tenant, and shall survive the expiration or earlier termination of the term of
the Lease. The provisions of this Section 11.2 shall survive the expiration or
sooner termination of this Lease.
(d) Landlord represents and warrants to Tenant as of the date of
this Lease, that to Landlord's actual knowledge (i) except as described in the
reports and/or memorandum listed on SCHEDULE 11.2 attached hereto (copies of
which Landlord has previously provided to Tenant), there has been no
Environmental Activity in violation of Environmental Requirements in, on,
under or about the Building or Real Property, and (ii) Landlord has delivered
to Tenant true and complete copies of all reports in its possession or control
relating to the environmental condition of the Building or Real Property. For
purposes of this Section 11.2(d), when the phrase to the "Landlord's actual
knowledge" is used, it shall be deemed to refer solely to the present actual
knowledge of Gerson Bakar, James M. Piane and Michael D. Franklin as of the
date of this Lease and shall not mean or include or be construed to mean or
include any implied, imputed or constructive knowledge of any kind of any or
all of said individuals, it being expressly understood and acknowledged by
Tenant that said individuals have not made and have no duty, express or
implied, to make, any independent investigation or
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inquiry of any kind whatsoever with respect to the subject matter of the
representations and warranty contained in this Section 11.2(d).
Notwithstanding the foregoing, Landlord hereby acknowledges that
the prior tenant of the Building, Levi Strauss & Co. ("LS&Co."), informed
Landlord that, during the latter part of LS&Co.'s tenancy, seven (7) cases of
breast cancer were
diagnosed among LS&Co.'s employees who had worked in the Building.
As summarized in the Franklin Report described on SCHEDULE 11.2 attached
hereto and made a part hereof, following the transmission of such information,
an extensive environmental investigation of the Building was undertaken by
LS&Co. and thereafter independently reviewed by Landlord to determine whether
or not there was any causal connection between the incidents of breast cancer
and the Building. As set forth in the studies conducted on behalf of LS&Co.
and listed on Appendix B to the Franklin Report (the "Levi Studies"), and the
other documents listed on SCHEDULE 11.2, including, without limitation, a
recent "Indoor Air Quality Evaluation" conducted by the Clayton Group (the
"Clayton Report"), no environmental causes of breast cancer were identified
in, on, under or about the Building or Real Property.
(e) Tenant hereby acknowledges receipt of the Franklin Report
(including Appendices A thorough F attached thereto) and the Clayton Report.
Tenant further acknowledges and agrees that prior to the execution of this
Lease it has been given a full opportunity to review the reports and
memorandum listed on SCHEDULE 11.2, including, without limitation, the Levi
Studies, and to inspect and investigate each and every aspect of the
environmental condition of the Building, either independently or through
agents of Tenant's choosing. Tenant agrees that it shall have no right to
abandon the Premises or terminate this Lease in connection with any claim or
claims that one or more of Tenant's employees, contractors, agents, invitees
or licensees has developed breast cancer during the Term of this Lease.
(f) Landlord shall add Tenant as an additional insured on that
certain Pollution Legal Liability Select Policy, Policy Number PLS 2676548 (as
reasonably amended by Landlord from time to time, the "PLI Policy), issued by
American International Specialty Lines Insurance Company, effective date May
10, 1999 (a true and correct copy of which Landlord has provided to Tenant),
and shall maintain Tenant as an additional insured throughout the term of said
policy. Throughout the Term of this Lease, Landlord shall be required to carry
an environmental liability policy on the Building (which policy may either be
the PLI Policy or another policy), containing substantially the same terms as
the PLI Policy (unless such terms are not commercially available and
reasonably priced), that names Tenant as an additional insured provided such
environmental liability coverage is commercially available and reasonably
priced (each as reasonably determined by Landlord). In determining whether
such policy is reasonably priced, if the cost of such policy does not exceed
the original cost of the PLI Policy, plus interest from the original effective
date of the PLI Policy at the rate of four percent (4%) per year, compounded
annually, such policy shall be deemed to be reasonably priced.
11.3 Tenant shall not do anything, or permit anything to be done, in or
about the Building or the Premises which would: (a) invalidate or be in
conflict with the provisions of or cause any increase in the applicable rates
for any fire or other insurance policies covering the Project or any property
located therein; (b) result in a refusal by fire insurance companies of
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good standing to insure the Project or any such property in amounts reasonably
satisfactory to Landlord; or (c) subject Landlord to any liability or
responsibility for injury to any person or property by reason of any business
operation being conducted in the Premises. Tenant, at Tenant's expense, shall
comply with all rules, orders, regulations or requirements of the American
Insurance Association (formerly the National Board of Fire Underwriters) and
with any similar body that shall hereafter perform the function of such
Association.
12. SUBORDINATION
12.1 Without the necessity of any additional document, this Lease shall
be subject and subordinate at all times to: (a) all reciprocal easement
agreements and all ground leases or underlying leases which may now exist or
hereafter be executed affecting the Building or the Real Property or both, and
(b) the lien of any mortgage or deed of trust which may now exist or hereafter
be executed in any amount for which the Building, Real Property, ground leases
or underlying leases, or Landlord's interest or estate in any of said items,
is specified as security. Notwithstanding the foregoing, Landlord shall have
the right to subordinate or cause to be subordinated to this Lease any of the
items referred to in clause (a) or (b) above. In the event that any ground
lease or underlying lease terminates for any reason or any mortgage or deed of
trust is foreclosed or a conveyance in lieu of foreclosure is made for any
reason, Tenant shall, notwithstanding any subordination, attorn to and become
the tenant of the successor in interest to Landlord, at the option of such
successor in interest. Tenant expressly waives the effect of any current or
future statute, rule or law which may give or purport to give Tenant any right
or election to terminate the Lease if any foreclosure proceeding or sale
occurs. Tenant covenants and agrees to execute and deliver a commercially
reasonable attornment agreement, and any other additional documents evidencing
the priority or subordination of this Lease with respect to ground leases,
underlying leases, reciprocal easement agreements or similar documents or
instruments, or the lien of any such mortgage or deed of trust. The provisions
of this Article 12 shall be self-operative and no further instrument shall be
required.
With respect to any existing mortgage indebtedness or ground lease,
Landlord agrees within fifteen (15) days from the date hereof to deliver to
Tenant a non-disturbance agreement in a form reasonably acceptable to Tenant,
executed by the holder of such mortgage indebtedness, and thereafter, at
Tenant's request, Landlord agrees to use its best efforts to obtain a similar
agreement from any subsequent holders of mortgage indebtedness against the
Building. In addition, the subordination referenced in the foregoing paragraph
shall not apply with respect to any subsequent mortgage or deed of trust if
any holder of such mortgage or deed of trust refuses to provide to Tenant a
commercially reasonable non-disturbance agreement.
12.2 The Landlord's title is and always shall be paramount to the title
of the Tenant and nothing contained in this Lease shall empower the Tenant to
do any act which can, shall or may encumber the title of the Landlord.
13. INABILITY TO PERFORM
13.1 If Landlord is unable to perform, or is delayed in performing, any
construction, installations, decorations, repairs, alterations, additions or
improvements under this Lease, or is unable to fulfill or is delayed in
fulfilling any of Landlord's other obligations under this Lease,
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by reason of acts of God, terrorism, accidents, breakage, repairs,
maintenance, strikes, lockouts, other labor disputes, inability to obtain
utilities or materials or by any other reason beyond Landlord's reasonable
control, then no such inability or delay by Landlord shall constitute an
actual or constructive eviction, in whole or in part, or entitle Tenant to any
abatement or diminution of Base Rent or Additional Charges, or relieve Tenant
from any of its obligations under this Lease, or impose any liability upon
Landlord or its agents by reason of inconvenience, annoyance, interruption,
injury or loss to or interference with Tenant's business or use and occupancy
or quiet enjoyment of the Premises or any loss or damage occasioned thereby.
Tenant hereby waives and releases any right to terminate this Lease under
Section 1932(1) of the California Civil Code or under any similar law, statute
or ordinance now or hereafter in effect.
13.2 If subsequent to the Commencement Date (a) Landlord defaults in
providing any material service it is required to provide to Tenant hereunder,
(b) the providing or not providing of such service is either (A) within the
control of Landlord, or (B) not within the control of Landlord but covered by
Landlord's rental interruption/income insurance, (c) Tenant, upon learning of
the failure by Landlord immediately, notifies Landlord by delivering written
notification to Landlord at the locations for notices set forth in Section 24
hereof, and (d) such service is not provided to Tenant for a period of five
(5) or more consecutive business days after Landlord's receipt of the written
notice from Tenant and the lack of such service prevents or materially
interferes with, the business carried on by Tenant in the Premises, then,
subject to the provisions of Section 17.2 hereof, Base Rent shall abate until
such service is resumed, such abatement to be based upon the extent to which
such interruption of service shall interfere with the business carried on by
Tenant in the Premises.
14. DESTRUCTION
If the Premises or the Building are damaged by fire or other casualty,
Landlord shall forthwith repair the same, provided that such repairs can be
made within two hundred ten (210) days after the date of such damage under the
laws and regulations of the federal, state and local governmental authorities
having jurisdiction thereof. In such event, this Lease shall remain in full
force and effect except that Tenant shall be entitled to a proportionate
reduction of Base Rent and Additional Charges while such repairs to be made
hereunder by Landlord are being made. Such proportionate reduction shall be
based upon the extent to which such damage and the making of such repairs by
Landlord shall interfere with the business carried on by Tenant in the
Premises. Within sixty (60) days after the date of such damage (or if Landlord
proceeds diligently but is unable to meet its notice obligation in such sixty
(60) day period, Landlord shall have ninety (90) days from the date of such
damage to provide such notice) Landlord shall notify Tenant whether or not
such repairs can be made within two hundred ten (210) days after the date of
such damage and Landlord's determination thereof shall be binding on Tenant.
If such repairs cannot be made within two hundred ten (210) days from the date
of such damage, Landlord shall have the option, within fifteen (15) after the
date of Landlord's notice to Tenant of such determination either to: (i)
notify Tenant of Landlord's intention to repair such damage and diligently
prosecute such repairs, in which event this Lease shall continue in full force
and effect and the Base Rent and Additional Charges shall be reduced as
provided herein; or (ii) notify Tenant of Landlord's election to terminate
this Lease as of a date specified in such notice, which date shall be not less
than thirty (30) nor more than sixty (60) days after notice is given. In the
event that such notice to terminate is given by Landlord, this Lease shall
terminate on the date
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specified in such notice. In case of termination, the Base Rent and Additional
Charges shall be reduced by a proportionate amount based upon the extent to
which such damage interfered with the business carried on by Tenant in the
Premises, and Tenant shall pay such reduced Base Rent and Additional Charges
up to the date of termination based upon an estimate produced by Landlord,
with a final settlement of Additional Charges to be completed after the end of
the applicable Tax Year and/or Expense Year, in accordance with Article 5
above. Landlord agrees to refund to Tenant any Base Rent and Additional
Charges previously paid for any period of time subsequent to such date of
termination. The repairs to be made hereunder by Landlord shall not include,
and Landlord shall not be required to repair, (i) any damage by fire or other
cause to the personal property of Tenant, (ii) any damage caused by the
negligence of Tenant, its contractors, agents, licensees or employees, or
(iii) any repairs or replacements of any paneling, decorations, railings,
floor coverings, or any alterations, additions, fixtures or improvements
installed on the Premises by or at the expense of Tenant; provided, however,
that if the repairs listed in subsections (i) through (iii) above are covered
by Landlord's insurance carried on the Real Property, then Landlord shall be
required to make such repairs pursuant to the provisions of this Section 14.
Tenant hereby waives the provisions of Section 1932, subdivision 2, and
Section 1933, subdivision 4, of the Civil Code of California.
15. EMINENT DOMAIN
15.1 If all or any part of the Premises shall be taken as a result of
the exercise of the power of eminent domain or any transfer in lieu thereof,
this Lease shall terminate as to the part so taken as of the date of taking,
and, in the case of a partial taking, either Landlord or Tenant shall have the
right to terminate this Lease as to the balance of the Premises by written
notice to the other within thirty (30) days after such date, provided,
however, that a condition to the exercise by Tenant of such right to terminate
shall be that the portion of the Premises taken shall be of such extent and
nature as substantially to handicap, impede or impair Tenant's use of the
balance of the Premises. If any material part of the Building shall be taken
as a result of the exercise of the power of eminent domain or any transfer in
lieu thereof, Landlord shall have the right to terminate this Lease by written
notice to Tenant within thirty (30) days of the date of taking. In the event
of any taking, Landlord shall be entitled to any and all compensation,
damages, income, rent, awards, or any interest therein whatsoever which may be
paid or made in connection therewith, and Tenant shall have no claim against
Landlord for the value of any unexpired term of this Lease or otherwise;
provided that Landlord shall have no claim to any portion of the award that is
specifically allocable to Tenant's relocation expenses, loss of personal
property, or the interruption of or damage to Tenant's business. In the event
of a partial taking of the Premises which does not result in a termination of
this Lease, the Base Rent and Additional Charges thereafter to be paid shall
be equitably reduced.
15.2 Notwithstanding any other provision of this Article 15, if a taking
occurs with respect to all or any portion of the Premises for a limited period
of time, this Lease shall remain unaffected thereby and Tenant shall continue
to pay Base Rent and Additional Charges and to perform all of the terms,
conditions and covenants of this Lease. In the event of any such temporary
taking, Tenant shall be entitled to receive that portion of any award which
represents compensation for the use or occupancy of the Premises during the
Term up to the total Base Rent and Additional Charges owing by Tenant for the
period of the taking, and Landlord shall be entitled to receive the balance of
any award.
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15.3 Tenant hereby waives and releases any right to terminate this Lease
in whole or in part under Sections 1265.120 and 1265.130 of the California
Code of Civil Procedure or under any similar law, statute or ordinance now or
hereafter in effect.
16. ASSIGNMENT AND SUBLETTING
16.1 Tenant may not directly or indirectly, voluntarily or by operation
of law, sell, assign, encumber, pledge or otherwise transfer or hypothecate
all or any part of its interest in or rights with respect to the Premises or
its leasehold estate hereunder (collectively, "Assignment"), or permit all or
any portion of the Premises to be occupied by anyone other than itself or
sublet all or any portion of the Premises (collectively, "Sublease"), or enter
into any license or concession, without Landlord's prior written consent in
each instance, which shall not be unreasonably withheld or delayed. Without
limiting the circumstances in which it may be reasonable for Landlord to
withhold its consent to an assignment or subletting, Landlord and Tenant
acknowledge that it shall be reasonable for Landlord to withhold its consent
in the following instances:
(i) in Landlord's reasonable judgment the use of the
Premises by the proposed assignee or subtenant would not be primarily for
office purposes, would entail any alterations which would lessen the value of
the leasehold improvements in the Premises, or would require materially
increased services by Landlord or would cause Landlord to violate any other
lease with another tenant of the Project or give any tenant in the Project a
right to cancel its lease;
(ii) in Landlord's reasonable judgment, the financial worth
of the proposed assignee does not meet the credit standards applied by
Landlord for other tenants under leases with comparable terms;
(iii) in Landlord's reasonable judgment, the financial worth
of the proposed subtenant is not sufficiently strong considering the nature of
the obligations it is undertaking;
(iv) in Landlord's reasonable judgment, the proposed
assignee or subtenant does not have a good reputation as a tenant of property;
(v) Landlord has experienced previous defaults by or is in
litigation with the proposed assignee or subtenant;
(vi) in Landlord's reasonable judgment, the Premises, or the
relevant part thereof, will be used in a manner that will violate any negative
covenant as to use contained in any other lease of space in the Building;
(vii) the proposed assignment or sublease involves a party
who is a tenant in the Building or involves a party with whom Landlord is then
negotiating for other space in the Building or with whom Landlord has
negotiated for other space in the Building (which space remains available)
during the six (6) months immediately preceding the request for Landlord's
consent; provided, in each case, Landlord has available space in the Project
that meets the party's contiguous square feet requirements;
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(viii) there exists an uncured default by Tenant under this
Lease, or Tenant has defaulted under this Lease (beyond any applicable cure or
grace period) on two or more occasions during the twelve (12) months preceding
the date that Tenant shall request consent;
(ix) the proposed assignment or sublease fails to include
all of the terms and provisions required to be included therein pursuant to
this Article 16;
(x) in the case of a subletting of less than the entire
Premises, if the subletting would result in demising of a floor of the
Premises into more than two (2) subparcels or would require access to be
provided through space leased or held for lease to another tenant or
improvements to be made outside of the Premises; or
(xi) the proposed assignee or subtenant is a governmental
agency.
16.2 If Tenant desires to enter into an Assignment of this Lease or a
Sublease of the Premises or any portion thereof for the balance of the Term,
other than an Assignment or Sublease under Section 16.6, it shall give written
notice (herein called "Notice of Proposed Transfer") to Landlord of its
intention to do so, which notice shall state the terms and conditions under
which Tenant is willing to enter into such proposed Assignment or Sublease.
16.3 At any time within fifteen (15) business days after Landlord's
receipt of the Notice of Proposed Transfer pursuant to Section 16.2, Landlord
may by written notice to Tenant elect to terminate this Lease as to the
portion (including all) of the Premises that is specified in the Notice of
Proposed Transfer (the "Landlord Termination"), with a proportionate reduction
in Base Rent. If Landlord does not elect the Landlord Termination, Tenant
shall be entitled for a period of one hundred fifty (150) days following the
expiration of Landlord's fifteen (15) business day period in which to make
such election, to enter into an Assignment or Sublease of the Premises or
portion thereof, subject to Landlord's prior written approval of the proposed
subtenant or assignee (collectively, "Transferee"), which shall not be
unreasonably withheld as provided above; provided, however, that any rent or
other consideration realized by Tenant under any such Assignment or Sublease,
in excess of the Base Rent and Additional Charges payable hereunder (or the
amount thereof proportionate to the portion of the Premises subject to such
Sublease or Assignment) and reasonable commissions and reasonable attorneys'
fees and the cost of any Alterations (or allowances therefor) incurred in
connection with such Sublease or Assignment, shall be divided and paid fifty
percent (50%) to Landlord and fifty percent (50%) to Tenant. Tenant shall
provide Landlord with such information regarding the proposed Transferee as
Landlord may reasonably request and Landlord agrees that it will not
unreasonably withhold or delay its approval of any proposed Transferee.
16.4 No Sublease or Assignment by Tenant nor any consent by Landlord
thereto shall relieve Tenant of any obligation to be performed by Tenant under
this Lease. Any Sublease or Assignment that is not in compliance with this
Article 16 shall be void and, at the option of Landlord, shall constitute a
material default by Tenant under this Lease. The acceptance of any Base Rent
or other payments by Landlord from a proposed Transferee shall not constitute
consent to such Sublease or Assignment by Landlord or a recognition of any
Transferee, or a waiver by Landlord of any failure of Tenant or other
Transferee to comply with this Article 16.
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16.5 Each Transferee under an Assignment (which for purposes of this
Section 16.5 shall include without limitation, Tenant Affiliates and Tenant
Successors, as defined in Section 16.6 below), shall assume all obligations of
Tenant under this Lease and shall be and remain liable jointly and severally
with Tenant for the payment of Base Rent and Additional Charges, and for the
performance of all of the terms, covenants, conditions and agreements herein
contained on Tenant's part to be performed for the Term. Each Transferee under
a Sublease shall be subject to all of the terms and provisions of this Lease
unless such terms are specifically amended pursuant to the Sublease. No
Assignment shall be binding on Landlord unless Tenant or Transferee shall
deliver to Landlord a counterpart of the Assignment reasonably satisfactory in
substance and form to Landlord, and consistent with the requirements of this
Section 16.6, but the failure or refusal of such Transferee to execute such
instrument of assumption shall not release or discharge such Transferee from
its liability as set forth above. Tenant shall reimburse Landlord within ten
(10) days of demand for any reasonable out-of-pocket costs that may be
incurred by Landlord in connection with any proposed Sublease or Assignment,
including, without limitation, the costs of making investigations as to the
acceptability of the proposed Transferee and legal costs incurred in
connection with the granting of any requested consent.
16.6 Without limiting the above, and subject to all of the terms of
Sections 16.5 and 16.6, no consent shall be required for an Assignment or
Sublease to a Tenant Affiliate or Tenant Successor and there shall be no
Landlord Termination right with respect to any such transfer. For purposes
hereof, (i) "Tenant Affiliate" shall mean any corporation, partnership or
other entity which controls, is controlled by or is under common control with
Tenant, and (ii) "Tenant Successor" shall mean any entity which acquires all
or substantially all of the stock or assets of Tenant or any entity into which
Tenant may become merged or consolidated, provided at the time of assignment
or subleasing the Tenant Affiliates' or Tenant Successors' then-current
tangible net worth (as determined in accordance with generally accepted
accounting principles consistently applied) equals or exceeds that of the
Tenant as of the date of the execution of this Lease, as evidenced by the
then-current financial statements delivered to Landlord with no material
exceptions and no pending or contingent claims that would materially adversely
affect the net worth of such successor corporation. "Control" in this context
shall mean the right directly or indirectly to exercise in excess of fifty
percent (50%) of the voting or governing power of an entity. Notwithstanding
anything contained in this Section 16 to the contrary, Tenant may allow any
Tenant Affiliate to use the Premises without such Tenant Affiliate entering
into any formal Assignment or Sublease, so long as Tenant also occupies the
Premises; and Tenant may from time to time during the Term permit certain
individuals or entities ("Business Partners") with whom Tenant has a bona fide
business relationship to occupy space within the Premises, provided that (i)
Tenant does not separately demise such space, (ii) Tenant notifies Landlord in
writing of the identity of such Business Partner prior to the occupancy of the
Premises by such Business Partner, (iii) no more than eight (8) individuals
occupy the Premises as a Business Partners at any one time, (iv) no Business
Partner shall have the right to occupy the Premises for a term (including
options) of more than six (6) months, and (v) Business Partners in the
aggregate do not occupy more than one thousand two hundred (1,200) square feet
of the Premises.
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17. UTILITIES
17.1 Landlord will furnish to the Premises (a) during the period from
7:00 a.m. to 6:00 p.m., Monday through Friday, except for New Year's Day,
President's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving,
Christmas and such other holidays as are generally recognized in San
Francisco, California, and subject to reasonable rules and regulations from
time to time established by Landlord, heating, air conditioning and
ventilation in amounts required, in Landlord's reasonable judgment, for the
normal first class use and occupancy of the Premises, (b) freight and
passenger elevator service, (c) electric current in amounts required for
normal lighting by building standard overhead fluorescent fixtures and for
standard office equipment, and (d) water for lavatory and drinking purposes.
It is understood that subject to Sections 17.2 and 17.3, such passenger
elevator service, electric current and water will be available twenty-four
(24) hours a day, and freight elevator service will be available in accordance
with the Rules and Regulations. For the term of the Lease, Landlord shall
maintain in good condition and repair, and replace (as necessary) the power
supply systems (including the UPS System and generator) that currently provide
backup power to the Building and to the computer room areas of the Building
(collectively, the "Backup Generator"). Notwithstanding the foregoing, if
Landlord is required to replace a component of the Building Generator in order
to maintain the same in good condition, then the total commercially reasonable
costs and expenses paid or incurred by Landlord in connection with such
replacement shall be amortized over a ten (10) year period, with an interest
rate on the unamortized balance thereof of ten percent (10%) per annum, and
such amortization with interest shall be included as an Expense in each of the
Expense Years during which such amortization occurs, provided that Tenant may
elect not to have Landlord replace such component by notifying Landlord in
writing of such election within thirty (30) days of Landlord notifying Tenant
in writing that such component is in need of replacement, in which event
Landlord shall not be obligated to further maintain the Building Generator. If
pursuant to the preceding sentence, Tenant elects not to have Landlord replace
a component of the Building Generator, and Landlord nevertheless replaces such
component, then such maintenance of the Building Generator from the time of
Landlord's replacement shall not be included in Expenses. Landlord shall
provide janitorial service consistent with first-class office buildings in the
San Francisco financial district, and window washing as reasonably deemed
necessary by Landlord. At Tenant's request, heating, ventilation and air
conditioning ("HVAC") will be available at hours other than those specified
above after twenty-four (24) hours notice to Landlord and upon Tenant's
agreement to pay Landlord's charges (other than for chilled water) for such
services. The charge for such non-standard HVAC shall be based upon Landlord's
reasonable calculation of the actual cost to Landlord of providing such
non-standard HVAC, and, as of the date hereof, the charge for after-hours use
for the entire Building is One Hundred Eighteen Dollars ($118) per hour for
HVAC and Forty Dollars ($40) for ventilation only. Tenant acknowledges that
the Building has a central HVAC and if Tenant requests HVAC service to the
Premises other than during Business Hours on Business Days, such HVAC service
shall require running the HVAC for the entire Building.
17.2 In the event any governmental entity promulgates or revises any
statute, ordinance or building, fire or other code or imposes mandatory or
reasonable voluntary controls or guidelines on Landlord or the Building or any
part thereof, or Landlord's engineers propose reasonable guidelines or
otherwise make recommendations, relating to the use or conservation of energy,
water, gas, light or electricity or the reduction of automobile or other
emissions or the
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provision of any other utility or service provided with respect to this Lease,
or in the event Landlord is required or reasonably elects to make alterations
or to perform maintenance with respect to, any part of the Project in order to
comply with such mandatory or reasonable voluntary controls, guidelines or
recommendations, such compliance, the making of such alterations and/or the
performance of such maintenance shall in no event entitle Tenant to any
damages, relieve Tenant of the obligation to pay the full Base Rent and
Additional Charges reserved hereunder or to perform each of its other
covenants hereunder or constitute or be construed as a constructive or other
eviction of Tenant.
17.3 Landlord shall provide the electrical current available to the
Premises for both lighting and power (excluding the central heating, air
conditioning and ventilating system) up to a demand load of 6.3 watts per
rentable square foot. Without the prior written consent of Landlord, which
Landlord may refuse in its sole discretion, Tenant shall not: (a) connect or
use any electrical equipment that exceeds the capacity of the Building
electrical system; (b) connect any apparatus, machine or device through
electrical outlets except in the manner for which such outlets are designed
and without the use of any device intended to increase the plug capacity of
any electrical outlet; or (c) maintain at any time an electrical demand load
in excess of 7 watts per rentable square foot. Landlord shall have the right
to impose a reasonable charge, as determined by Landlord, for such excess use.
Landlord shall have the right at any time to install an electric current meter
in the Premises or otherwise to measure the amount of electric current
consumed on the Premises, and the cost of such meter or other corrective
measures and the installation and maintenance thereof shall be paid for by
Landlord, unless same is requested by Tenant.
17.4 The HVAC system for the Building is a variable air volume system
with perimeter zone re-heat capability. It is designed to maintain a minimum
of 68 degrees F at a outside dry bulb of 41 degrees; and a maximum of 76
degrees F at 50% relative humidity at an electrical load of 1.5 watts per
rentable square foot for lighting (over and above base building and common
equipment loads of 1.25 watts per rentable square foot) at a density of 1
person per 150 rentable square feet at a designed ambient temperature of 79
degree dry bulb and 63 degrees wet bulb. If the temperature otherwise
maintained in any portion of the Premises by the heating, air conditioning and
ventilating system of the Building is affected by (a) Tenant's use of any
lights, machines or equipment (other than ordinary office equipment), or (b)
the occupancy of the Premises by more than one (1) person per 150 rentable
square feet, Landlord shall have the right, unless Tenant ceases and desists
from such usage or excess occupancy within five (5) days after written notice
from Landlord, to install any machinery and equipment that Landlord reasonably
deems necessary to restore temperature balance, including, without limitation,
modifications to the standard air conditioning equipment, and the cost
thereof, including the cost of installation and any additional cost of
operation and maintenance incurred thereby, shall be paid by Tenant to
Landlord within five (5) days after demand therefor by Landlord.
17.5 Without the prior written consent of Landlord, which Landlord may
not unreasonably withhold, Tenant shall not place or install in the Premises
any machine, equipment, files or other load the weight of which shall exceed
seventy-five (75) pounds per square foot, the normal load-bearing capacity of
the floors of the Building; and if Landlord consents to the placement or
installation of any such machine, equipment, files or other load in the
Premises, Tenant at its sole cost and expense shall reinforce the floor of the
Premises in the area of such
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placement or installation, pursuant to plans and specifications approved by
Landlord (after review by Landlord's consultant, whose fees shall be paid by
Tenant) and otherwise in compliance with Article 8, to the extent necessary to
assure that no damage to the Premises or the Building or weakening of any
structural supports will be occasioned thereby.
18. DEFAULT
18.1 Any failure to pay any Base Rent or Additional Charges as and when
due, or any failure to perform or comply with any covenant, condition or
representation made under this Lease (including any exhibits hereto), shall
constitute a default hereunder by Tenant, subject in the specific instances
set forth below to the expiration of the appropriate grace period hereinafter
provided. Tenant shall have a period of thirty (30) days from the date of
written notice from Landlord within which to cure any default in the payment
of Base Rent or Additional Charges; provided, however, that Landlord shall not
be required to provide such notice regarding Tenant's failure to make such
payments when due more than once during any twelve (12) month period, and any
such failure by Tenant after Tenant has received one such notice in any twelve
(12) month period from Landlord shall constitute a default by Tenant hereunder
without any requirement on the part of Landlord to give Tenant notice of such
failure. Tenant shall have a period of thirty (30) days from the date of
written notice from Landlord within which to cure any other default under this
Lease, provided, however, if the nature of such default is such that it cannot
reasonably be cured within a period of thirty (30) days, then Lessee shall not
be in default hereunder if it shall commence the correction of such default so
specified within said thirty (30) day period and diligently prosecute the same
to completion.
18.2 Any Sublease or Assignment that is not in compliance with Article
16 of this Lease shall constitute a default hereunder by Tenant, if such
compliance continues for a period of five (5) days after written notice
thereof.
18.3 The appointment of a receiver to take possession of all or
substantially all of the assets of Tenant, or an assignment by Tenant for the
benefit of creditors, or any action taken or suffered by Tenant under any
insolvency, bankruptcy, reorganization, moratorium or other debtor relief act
or statute, whether now existing or hereafter amended or enacted, shall also
constitute a default under this Lease by Tenant, provided that in the event
any such appointment or action is involuntary, the same shall not constitute a
default if such action is dismissed within sixty (60) days following its
filing.
18.4 Upon the occurrence of a default by Tenant which is not cured by
Tenant within the applicable grace period specified in Sections 18.1-18.3,
Landlord shall have the following rights and remedies in addition to all other
rights or remedies available to Landlord at law or in equity:
(a) The rights and remedies provided by California Civil Code
Section 1951.2, including, but not limited to, the right to terminate Tenant's
right to possession of the Premises and to recover the worth at the time of
award of the amount by which the unpaid Base Rent and Additional Charges for
the balance of the Term after the time of award exceeds the amount of rental
loss for the same period that the Tenant proves could be reasonably avoided,
as computed pursuant to subsection (b) of said Section 1951.2.
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(b) The rights and remedies provided by California Civil Code
Section 1951.4 ("Landlord may continue lease in effect after Tenant's breach
and abandonment and recover rent as it becomes due, if Tenant has right to
sublet or assign, subject only to reasonable limitations"), which allows
Landlord to continue this Lease in effect and to enforce all of its rights and
remedies under this Lease, including the right to recover rent as it becomes
due, for so long as Landlord does not terminate Tenant's right to possession;
acts of maintenance or preservation, efforts to relet the Premises or the
appointment of a receiver upon Landlord's initiative to protect its interest
under this Lease shall not constitute a termination of Tenant's right to
possession. If Landlord exercises its rights under California Civil Code
Section 1951.4, Landlord as attorney-in-fact for Tenant may from time to time
sublet the Premises or any part thereof for such term or terms (which may
extend beyond the Term) and at such rent and upon such other terms as Landlord
in its sole discretion may deem advisable, with the right to make alterations
and repairs to the Premises. Upon each such subletting, Tenant shall be
immediately liable for payment to Landlord of, in addition to Base Rent and
Additional Charges due hereunder, the cost of such subletting and such
alterations and repairs incurred by Landlord and the amount, if any, by which
the Base Rent and Additional Charges owing hereunder for the period of such
subletting (to the extent such period does not exceed the Term) exceeds the
amount to be paid as Base Rent and Additional Charges for the Premises for
such period pursuant to such subletting. For all purposes set forth in this
Subsection 18.3(b), Landlord is hereby irrevocably appointed attorney-in-fact
for Tenant, with power of substitution. No taking possession of the Premises
by Landlord as attorney-in-fact for Tenant shall be construed as an election
on Landlord's part to terminate this Lease or Tenant's right to possession
unless a written notice of such intention is given to Tenant. No action taken
by Landlord pursuant to this Subsection 18.3(b) shall be deemed a waiver of
any default by Tenant and, notwithstanding any such subletting without
termination, Landlord may at any time thereafter elect to terminate this Lease
for such previous default.
(c) The right to have a receiver appointed for Tenant upon
application by Landlord to take possession of the Premises and to apply any
rental collected from the Premises and to exercise all other rights and
remedies granted to Landlord as attorney-in-fact for Tenant pursuant to
Subsection 18.3(b) hereof.
19. LANDLORD'S RIGHT TO CURE TENANT'S DEFAULTS
If Tenant shall default in the performance of its obligations and such
default shall be continuing beyond any applicable grace period provided in
this Lease, Landlord at any time thereafter and without notice may remedy such
default for Tenant's account and at Tenant's expense without thereby waiving
such default or any rights or remedies of Landlord on account of such default.
Tenant shall pay to Landlord within ten (10) days of demand all sums expended
by Landlord, or other costs, damages, expenses or liabilities incurred by
Landlord, including, without limitation, reasonable attorneys' fees and costs,
in remedying or attempting to remedy such default. Tenant's obligations under
this Section 19.1 shall survive the termination of this Lease.
20. MORTGAGEE PROTECTION
Tenant agrees to give any holder of any mortgage or deed of trust
secured by the Real Property, by registered or certified mail, a copy of any
notice of default served upon the
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Landlord by Tenant, provided that, prior to such notice, Tenant has been
notified in writing of the address of such holder of a mortgage or deed of
trust. Tenant further agrees that if Landlord shall have failed to cure such
default within ten (10) days after such notice to Landlord (or if such default
cannot be cured or corrected within that time, then such additional time as
may be necessary if Landlord has commenced within such thirty (30) day period
and is diligently pursuing the remedies or steps necessary to cure or correct
such default), then the holder of any mortgage or deed of trust shall have an
additional sixty (60) days within which to cure or correct such default (or if
such default cannot be cured or corrected within that time, then such
additional time as may be necessary if such holder of any mortgage or deed of
trust has commenced within such sixty (60) day period and is diligently
pursuing the remedies or steps necessary to cure or correct such default).
Notwithstanding the foregoing, in no event shall any holder of any mortgage or
deed of trust have any obligation to cure any default of the Landlord.
21. INDEMNITY; INSURANCE
21.1 Except to the extent arising out of the negligent acts or omissions
or willful misconduct of Landlord, Tenant agrees to indemnify Landlord against
and save Landlord harmless from any and all loss, cost, liability, damage and
expense, including, without limitation, reasonable attorneys' fees and costs,
incurred in connection with or arising from: (i) the use or occupancy or
manner of use or occupancy of the Premises by Tenant or any person or entity
claiming through or under Tenant, or (ii) the condition on the Premises
created by Tenant or any occurrence on the Premises from any cause whatsoever,
or (iii) any acts, omissions or negligence of Tenant or of the contractors,
agents, servants, employees, visitors, invitees or licensees of Tenant, in, on
or about the Premises or the Building. Tenant's obligations under this Section
21.1 shall survive the termination of the Lease.
21.2 Tenant shall procure at its cost and expense and keep in effect
during the Term commercial general liability insurance, including contractual
liability with a combined single limit of liability of not less than five
million dollars ($5,000,000.00), and with no deductible. Such coverage shall
be in a commercial general liability form with at least the following
endorsements to the extent such endorsements are generally available: (i)
including employees as additional insureds, (ii) providing for blanket
contractual coverage, broad form property damage coverage and products
completed operations coverage (where applicable), (iii) deleting any liquor
liability exclusions, and (iv) providing for coverage of employee's automobile
non-ownership liability. Such insurance shall name Landlord, Landlord's
mortgagee, and any other party designated by Landlord as an additional
insured, shall specifically include the liability assumed hereunder by Tenant,
shall provide that it is primary insurance and not excess over or contributory
with any other valid, existing and applicable insurance covering the same loss
carried by Landlord or any other party, shall provide for severability of
interests, shall further provide that an act or omission of one of the named
insureds which would void or otherwise reduce coverage shall not reduce or
void the coverage as to any insured, shall afford coverage for all claims
based on acts, omissions, injury or damage which occurred or arose (or the
onset of which occurred or arose) in whole or in part during the policy
period, and shall provide that Landlord will receive thirty (30) days' written
notice from the insurer prior to any cancellation or material change of
coverage. Tenant shall deliver to Landlord a certificate or binder of such
insurance reasonably satisfactory to Landlord on or before the Commencement
Date, and thereafter at least ten (10) days before the expiration dates of
expiring policies; and in the event
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Tenant shall fail to procure such insurance, or to deliver such policies,
Landlord may, at its option, procure same for the account of Tenant, and the
cost thereof shall be paid to Landlord within ten (10) days after delivery to
Tenant of bills therefor. Tenant's compliance with the provisions of this
Section 21.2 shall in no way limit Tenant's liability under any provisions of
Section 21.1.
21.3 Tenant shall be responsible, at its cost and expense, for
separately insuring Tenant's Property.
21.4 Tenant shall maintain Workers' Compensation Insurance as required
by the applicable law.
21.5 Notwithstanding anything to the contrary contained herein, Landlord
and Tenant each hereby waive any right of recovery against the other party and
against any other party maintaining a policy of insurance with respect to the
Project or any portion thereof or the contents of any of the same, for any
loss or damage covered by insurance maintained by such other party with
respect to the Project or the Premises or any portion of any thereof or the
contents of the same or any operation therein, whether or not such loss is
caused by the fault or negligence of such other party. If any policy of
insurance relating to the Premises carried by Tenant or Landlord does not
permit the foregoing waiver or if the coverage under any such policy would be
invalidated as a result of such waiver, such party shall obtain from the
insurer under such policy a waiver of all rights of subrogation the insurer
might have against Landlord or any other party maintaining a policy of
insurance covering the same loss, in connection with any claim, loss or damage
covered by such policy.
21.6 Landlord at its cost shall maintain on the Building a policy of
standard fire and extended coverage insurance with theft, vandalism and
malicious mischief endorsements, to the extent of the full replacement value
of the Building without any deduction for depreciation.
22. LIMITATION OF LANDLORD'S LIABILITY
Landlord shall not be responsible for or liable to Tenant and Tenant
hereby waives all claims against Landlord for any injury, loss or damage to
any person or property in or about the Premises by or from any cause
whatsoever (other than Landlord's gross negligence or willful misconduct)
including, without limitation, acts or omissions of persons occupying
adjoining premises or any part of the Project adjacent to or connected with
the Premises; theft; burst, stopped or leaking water, gas, sewer or steam
pipes; or gas, fire, smoke, paint, polish, Environmental Activity, oil or
electricity in, on or about the Premises or the Project.
23. ACCESS TO PREMISES
Landlord reserves (for itself and any designated agent, representative,
employee or contractor) the right to enter the Premises at all reasonable
times and, except in cases of emergency and regularly scheduled service, after
giving Tenant at least twenty-four (24) hours' advance notice, to inspect the
Premises, to supply any service to be provided by Landlord hereunder, to show
the Premises to prospective purchasers, mortgagees or, during the last year of
the Term of this Lease, tenants, to post notices of nonresponsibility, and to
alter, improve or repair the Premises and any portion of the Building, without
abatement of Base Rent or
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Additional Charges, and may for that purpose erect, use and maintain necessary
structures in and through the Premises where reasonably required by the
character of the work to be performed, provided that the entrance to the
Premises shall not be blocked thereby, and further provided that the business
of Tenant shall not be interfered with unreasonably. Except to the extent
arising out the negligence or willful misconduct of Landlord, Tenant hereby
waives any claim for damages for any injury or inconvenience to or
interference with Tenant's business, any loss of occupancy or quiet enjoyment
of the Premises or any other loss occasioned thereby. All locks for all of the
doors in, upon and about the Premises, excluding Tenant's vaults and safes or
special security areas (reasonably designated by Tenant) shall at all times be
keyed to the Building master system and Landlord shall at all times have and
retain a key with which to unlock all of said doors. Landlord shall have the
right to use any and all means that Landlord may deem necessary or proper to
open said doors in an emergency in order to obtain entry to any portion of the
Premises, and any entry to the Premises or portions thereof obtained by
Landlord by any of said means, or otherwise, shall not under any circumstances
be construed or deemed to be a forcible or unlawful entry into, or a detainer
of, the Premises, or an eviction, actual or constructive, of Tenant from the
Premises or any portion thereof. Landlord shall provide free of charge to
Tenant's employees key cards for access to the Building.
Notwithstanding anything to the contrary contained herein, Tenant shall
have the right to access the Premises and all common areas necessary to access
the Premises twenty-four (24) hours a day, seven (7) days a week; provided,
however, Landlord reserves the right to close and keep locked all entrance and
exit doors of the Building outside of normal business hours on Business Days
as Landlord may reasonably deem to be advisable for the protection of the
property. If Landlord locks the Premises pursuant to the preceding sentence,
Landlord shall provide an alternate mode of access to Tenant, Tenant's
employees and Tenant's visitors pursuant to the Rules and Regulations attached
hereto as EXHIBIT E, as may be modified from time to time. As used herein the
term "Business Days" shall mean Monday through Friday of each week, exclusive
of New Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day
and Christmas Day ("Holidays"). Landlord may designate additional Holidays,
provided that the additional Holidays are commonly recognized by other office
buildings in the San Francisco central business district area, provided
further that any Friday after a Thursday Holiday (such as the Friday after
Thanksgiving Day) and any Monday before a Tuesday Holiday shall not be deemed
Holidays.
24. NOTICES
Notices or other communications given or required to be given under this
Lease shall be effective only if rendered or given in writing, (a) delivered
personally, (b) sent by certified mail with a return receipt requested, (c) by
facsimile with a confirmation receipt (and a copy sent by a commercial
overnight courier that guarantees next day delivery), or (d) by a commercial
overnight courier that guarantees next day delivery and provides a receipt:
(i) to Tenant at Tenant's address set forth in Article 1 hereof, or at any
place where Tenant or any agent, officer or employee of Tenant may be found if
sent subsequent to Tenant's vacating, deserting, abandoning or surrendering
the Premises; or (ii) to Landlord at Landlord's address set forth in Article
1; or (iii) to such other address as either Landlord or Tenant may designate
as its new address for such purpose by notice given to the other in accordance
with the provisions of this Article 24. Tenant may be required to give notice
to Landlord's mortgagee pursuant to
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Section 20 herein. Any such notice or other communication shall be deemed to
have been rendered or given three (3) days after the date when it shall have
been mailed if sent by certified mail, or upon actual receipt if sent by
facsimile, or upon the date personal delivery is made, or upon actual delivery
if sent by overnight courier.
25. NO WAIVER
25.1 No failure either party hereto to insist upon the strict
performance of any obligation of the other party under this Lease or to
exercise any right, power or remedy consequent upon a breach thereof, no
acceptance of full or partial Base Rent or Additional Charges during the
continuance of any such breach, and no acceptance of the keys to or possession
of the Premises prior to the expiration of the Term by any employee or agent
of Landlord shall constitute a waiver of any such breach or of such term,
covenant or condition or operate as a surrender of this Lease.
25.2 Neither this Lease nor any term or provisions hereof may be
changed, waived, discharged or terminated orally, and no breach thereof shall
be waived, altered or modified, except by a written instrument signed by the
party against which the enforcement of the change, waiver, discharge or
termination is sought. No waiver of any breach shall affect or alter this
Lease, but each and every term, covenant and condition of this Lease shall
continue in full force and effect with respect to any other then-existing or
subsequent breach thereof. The consent of Landlord given in any instance under
the terms of this Lease shall not relieve Tenant of any obligation to secure
the consent of Landlord in any other or future instance under the terms of
this Lease.
26. TENANT'S CERTIFICATES
Tenant, at any time and from time to time upon not less than ten (10)
days' prior written notice from Landlord, will execute, acknowledge and
deliver to Landlord or to any party designated by Landlord, a certificate or
estoppel of Tenant stating: (a) that Tenant has accepted the Premises (or, if
Tenant has not done so, that Tenant has not accepted the Premises and
specifying the reasons therefor), (b) the Commencement Date and Expiration
Date of this Lease, (c) that this Lease is unmodified and in full force and
effect (or, if there have been modifications, that same is in full force and
effect as modified and stating the modifications), (d) whether or not, to the
best of Tenant's knowledge, there are then existing any defenses against the
enforcement of any of the obligations of Tenant under this Lease (and, if so,
specifying same), (e) whether or not, to the best of Tenant's knowledge, there
are then existing any defaults by Landlord in the performance of its
obligations under this Lease (and, if so, specifying same), (f) the dates, if
any, to which the Base Rent and Additional Charges and other charges under
this Lease have been paid, and (g) any other information that may reasonably
be required by any such person. Landlord, at any time and from time to time
upon not less than ten (10) days' prior written notice from Tenant, will
execute, acknowledge and deliver to Tenant or any party designated by Tenant,
a certificate or estoppel of Landlord which may address the matter as
referenced above. Any party requesting a certificate or estoppel pursuant to
this Section 26 shall reimburse the other party, within ten (10) days demand,
for any reasonable costs that may be incurred by such other party in
connection with the review and confirmation of any such certificate or
estoppel.
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27. RULES AND REGULATIONS
Tenant shall faithfully observe and comply with the rules and
regulations attached to this Lease as EXHIBIT E and all reasonable
modifications thereof and additions thereto from time to time put into effect
by Landlord (the "Rules and Regulations"). Landlord shall have no duty to
enforce the Rules and Regulations against, nor shall Landlord be responsible
for the nonperformance of the Rules and Regulations by, any other tenant or
occupant of the Project; provided, however, that Landlord shall endeavor to
enforce the Rules and Regulations in a reasonable and non-discriminatory
manner. In the event of any conflict between the terms, covenants, agreements
and conditions of this Lease and the terms, covenants, agreements and
conditions of the Rules and Regulations, this Lease shall control.
Notwithstanding anything to the contrary contained in the Rules and
Regulations, Tenant and Landlord hereby agree that Tenant, Tenant's employees
and Tenant's visitors shall be permitted to store bikes (i) near the Building
loading dock, and (ii) in the Additional Space (as defined below) provided
Landlord is not leasing any space on the first floor of the Building to a
tenant other than Tenant. Tenant, Tenant's employees and Tenant's visitors
shall not be permitted to bring bikes in any other area of the Building.
28. TAXES PAYABLE BY TENANT
In addition to the Base Rent and the Additional Charges to be paid by
Tenant hereunder, Tenant shall reimburse Landlord within ten (10) days of
Landlord's written demand for any and all taxes payable by Landlord (other
than net income taxes), whether or not now customary or within contemplation
of the parties hereto, that are: (a) upon or measured by the Base Rent or
Additional Charges payable hereunder, including, without limitation, any gross
income tax or excise tax levied by the City, the State of California, the
federal government or any other governmental body with respect to the receipt
of such Base Rent or Additional Charges; (b) upon or in connection with the
possession, leasing, operation, management, maintenance, alteration, repair,
use or occupancy by Tenant of the Premises or any portion thereof; (c) upon or
measured by the cost or value of Tenant's Property; or (d) upon this
transaction or any document to which Tenant is a party, creating or
transferring an interest or an estate in the Premises. In the event that it is
not lawful for Tenant to so reimburse Landlord, the Base Rent and the
Additional Charges payable to Landlord under this Lease shall be revised so
that Landlord receives the same net Base Rent and Additional Charges after
imposition of any such tax upon Landlord, as Landlord would have received
prior to the imposition of any such tax. None of the kinds of taxes described
in this Article 28 and imposed with respect to this Lease or any other lease
of any portion of the Building shall be included within the definition of
Taxes in Article 5 of this Lease. Landlord and Tenant acknowledge that the
term "taxes" as used in this Article shall mean any levies, fees, charges or
other impositions imposed by any governmental entity. If and to the extent
that any portion of the Alterations is assessed to Landlord as a part of the
Building, Tenant shall pay to Landlord any additional taxes actually payable
by Landlord by reason of the fact that the Alterations are not separately
assessed to Tenant. For the purpose of making this allocation, the parties
shall seek access to the assessor's field notes and any other information
available to the parties, that would be helpful in making such allocation.
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29. SECURITY DEPOSIT
29.1 Upon written removal of the condition contained in Section 48
hereof, Tenant shall deposit with Landlord a security deposit (" Security
Deposit") in cash in an amount equal to Fifty Seven Thousand Six Hundred Five
and 52/100 Dollars ($57,605.52), as security for the faithful performance and
observation by Tenant of the terms, covenants and conditions of this Lease. On
the dates specified below, the Security Deposit shall be increased as follows:
- On the date Tenant commences any work on the Premises, the
Security Deposit shall be increased by Two Hundred Thirty Thousand
Four Hundred Twenty Two and 08/100 Dollars ($230,422.08) to Two
Hundred Eighty Eight Thousand Twenty Seven and 60/100 Dollars
($288,027.60);
- On the date Tenant commences occupancy of the Premises, the
Security Deposit shall be further increased by One Hundred Seventy
Two Thousand Eight Hundred Sixteen and 56/100 Dollars
($172,816.56) to Four Hundred Sixty Thousand Eight Hundred Forty
Four and 16/100 Dollars ($460,844.16);
- On January 1, 2006, the Security Deposit shall be further
increased by One Hundred Fifteen Thousand Two Hundred Eleven and
04/100 Dollars ($115,211.04) to Five Hundred Seventy Six Thousand
Fifty Five and 20/100 Dollars ($576,055.20).
29.2 Landlord shall not be required to keep the Security Deposit
separate from its general accounts. Tenant shall not be entitled to interest
on the Security Deposit. If Tenant defaults (beyond any applicable cure or
grace period) in respect of any of the terms, covenants or conditions of this
Lease, including without limitation the payment of rent, Landlord may use,
apply or retain the whole or any part of the Security Deposit to the extent
required for the payment of any Base Rent or any other sum as to which Tenant
is in default, including, without limitation, (a) any sum which Landlord may
expend or may be required to expend by reason of Tenant's default in respect
of any of the terms, covenants or conditions of this Lease, or to compensate
Landlord for any loss or damage which Landlord may suffer thereby, and/or (b)
any damages or deficiency in the reletting of the Premises, whether such
damages or deficiency accrue or accrues before or after summary proceedings or
other reentry by Landlord. If Landlord applies or retains any part of the
Security Deposit, Tenant, within ten (10) days of Landlord's demand, shall
immediately deposit with Landlord the amount so applied or retained so that
Landlord shall have the full Security Deposit on hand at all times during the
Term. The Security Deposit shall be returned to Tenant after the Expiration
Date and after delivery of the entire possession of the Premises to Landlord
in the manner required by this Lease, except so much thereof as is applied by
Landlord for the matters set forth above. Tenant expressly agrees that Tenant
shall have no right to apply any portion of the Security Deposit against any
of Tenant's obligations to pay rent hereunder. In the event of any conveyance
of title to the Building, Landlord shall have the right to transfer the
Security Deposit to the new landlord, and Landlord shall thereupon be released
by Tenant from all liability for the return of the Security Deposit. Provided
the Security Deposit has been so transferred, Tenant shall look solely to the
new landlord for the return of the Security Deposit. The provisions hereof
shall apply to every transfer or assignment made of the Security Deposit to a
new landlord. Tenant further covenants and agrees that it shall not assign or
encumber or attempt to assign or encumber the Security
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Deposit and neither Landlord or its successors or assignees shall be bound by
any such agreement, encumbrance, attempted assignment or attempted
encumbrance.
29.3 In lieu of the cash Security Deposit described in Section 29.1
above, the Security Deposit to be delivered by Tenant to Landlord may be in
the form of an irrevocable letter of credit (the "Letter of Credit") (or
Tenant may substitute the Letter of Credit at any time during the Term for the
cash Security Deposit previously delivered) issued to Landlord, as
beneficiary, in form and substance satisfactory to Landlord, by a bank (an
"Approved Bank") reasonably approved by Landlord qualified to transact banking
business in California with an office in the City and County of San Francisco
at which drafts drawn on the Letter of Credit may be presented for payment.
Landlord hereby approves each of Silicon Valley Bank, Bank of America, N.A.,
Wells Fargo Bank, N.A., and J.P. Morgan Chase as an Approved Bank. The amount
of the Letter of Credit shall be increased on the appropriate dates to match
the increases in the Security Deposit on the dates specified in Section 29.1
and may be decreased to match the reductions in the Security Deposit specified
in Section 29.6 on the dates specified in Section 29.6. The Security Deposit
shall at all times either be exclusively in the form of a cash Security
Deposit or exclusively in the form of a Letter of Credit. All fees for the
maintenance of the Letter of Credit shall be at Tenant's sole cost. The full
amount of the Letter of Credit as required by Sections 29.1 and 29.6 hereof,
shall be available to Landlord upon presentation of Landlord's sight draft
accompanied only by the Letter of Credit and Landlord's signed statement that
Landlord is entitled to draw on the Letter of Credit pursuant to this Lease.
Tenant shall maintain the Letter of Credit for the entire Term of this Lease
and any extension thereof, subject only to reduction in the amount of the
Letter of Credit as provided herein (provided, that, Tenant may at any time
substitute a cash Security Deposit for the Letter of Credit, and upon such
substitution Landlord shall return the Letter of Credit to Tenant). The Letter
of Credit shall expressly state that the Letter of Credit and the right to
draw thereunder may be transferred or assigned by Landlord to any successor or
assignee of Landlord under this Lease. Tenant shall pay any fees related to
the issuance or amendment of the Letter of Credit, except that Tenant shall
not be required to pay any fees related to any transfer of the Letter of
Credit requested by Landlord.
29.4 The Letter of Credit shall also provide that it shall be deemed
automatically renewed, without amendment (except for any reductions permitted
under Section 29.6), for consecutive periods of one (1) year each during the
term of this Lease (plus a period of thirty (30) days after the Expiration
Date), unless the Approved Bank sends written notice ("Issuer Notice") to
Landlord by any method specified in Article 24 above, not less than sixty (60)
days next preceding the then expiration date of the Letter of Credit that it
elects not to have such Letter of Credit renewed. If Landlord receives an
Issuer Notice, and not later than thirty (30) days prior to the expiry date of
the Letter of Credit Tenant fails to furnish Landlord with a replacement
Letter of Credit pursuant to the terms and conditions of this Section 29.3,
then Landlord shall have the right to draw the full amount of the Letter of
Credit, by sight draft, and shall hold the proceeds of the Letter of Credit as
a cash Security Deposit pursuant to the terms and conditions of Section 29.1
above.
29.5 Notwithstanding anything to the contrary contained herein, in the
event Landlord draws on the Letter of Credit due to Tenant's failure to renew
the Letter of Credit, (i) Tenant shall be entitled at any time thereafter to
restore the Letter of Credit (at which time Landlord shall return the cash
Security Deposit to Tenant), and (ii) provided Landlord has drawn down on
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the Letter of Credit, Tenant's failure to renew the Letter of Credit shall not
be deemed a default hereunder. Landlord shall only draw upon the Letter of
Credit to the extent permitted under this Article 29.
29.6 Provided that, as of the dates specified below (i) Tenant has not
assigned this Lease or sublet more than fifty percent (50%) of the total
Rentable Area of the Premises (other than an Assignment or Sublease to a
Tenant Affiliate or Tenant Successor), and (ii) Tenant is not then in default
hereunder (beyond any applicable cure or grace period), the Security Deposit
shall be reduced as follows:
- On February 1, 2007, to an amount equal to Four Hundred Sixty
Thousand Eight Hundred Forty Four and 16/100 Dollars
($460,844.16);
- On February 1, 2008, to an amount equal to Three Hundred Forty
Five Thousand Six Hundred Thirty Three and 12/100 Dollars
($345,633.12);
- On February 1, 2009, to an amount equal to Two Hundred Thirty
Thousand Four Hundred Twenty Two and 08/100 Dollars ($230,422.08);
and
- On February 1, 2010, to an amount equal to One Hundred Twenty
Three Thousand One Hundred Seventeen and 68/100 Dollars
($123,117.68).
30. AUTHORITY
Each of the persons executing this Lease on behalf of Tenant does hereby
covenant and warrant that Tenant is a duly authorized and existing entity,
that Tenant has and is qualified to do business in California, that Tenant has
full right and authority to enter into this Lease, and that each and both of
the persons signing on behalf of Tenant are authorized to do so. Upon
Landlord's request, Tenant shall provide Landlord with evidence reasonably
satisfactory to Landlord confirming the foregoing covenants and warranties.
Each of the persons executing this Lease on behalf of Landlord does hereby
covenant and warrant that Landlord is a duly authorized and existing entity,
that Landlord has and is qualified to do business in California, that Landlord
has full right and authority to enter into this Lease, and that each and both
of the persons signing on behalf of Landlord are authorized to do so.
31. PUBLIC TRANSIT INFORMATION
Tenant shall establish and carry on during the Term a program to
encourage use of public transportation by personnel of Tenant employed on the
Premises.
32. SIGNAGE AND BUILDING NAMING RIGHTS
Tenant will receive, at Landlord's sole cost and expense, standard
directory signage in the main lobby of the Building and signage on each floor
of the Building. Tenant shall be allowed (i) Building signage, (ii) to use its
graphics at the entrance to its Premises within the Building , and (iii) a
banner sign on the exterior of the Building, which banner sign shall be placed
in the same location as the current banner signage existing on the exterior of
the Building and shall read "PlanetOut" or such other business name as Tenant
may elect from time to time (the "Exterior Signage"), each subject to Landlord
prior approval in its sole discretion and provided, that, Tenant complies, at
its sole cost and expense, with all laws, statutes, ordinances
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and governmental rules, regulations and requirements applicable to such
signage. All of the foregoing signs shall be referred to collectively as the
"Tenant Signage". In addition, Tenant shall have the right to have the
Building renamed the "PlanetOut Building" or such other name as may be
proposed by Tenant (so long as such other name refers to Tenant and is
approved by Landlord in its sole discretion). Notwithstanding the foregoing,
the rights to have the Building named after Tenant as provided in this Section
32 shall be personal to the original Tenant (and any Tenant Successor) named
under the Lease (together, "Original Tenant") and may not be transferred to
any other party. Landlord hereby approves Tenant's use of the name "PlanetOut"
and the current PlanetOut logo on the Tenant Signage. In the event that the
name of the Tenant changes in any way or manner, whether as a result of the
merger of Tenant or otherwise, Tenant shall have the right to change the
Tenant Signage, at Tenant's sole cost and expense, to reflect such new name,
subject to Landlord prior approval in its reasonable discretion. In addition,
if at any time the rentable square feet of the Premises leased by Tenant
decreases to less than two (2) full floors of the Building, Original Tenant
shall no longer be entitled to the Exterior Signage or the Building naming
rights provided in this Section 32.
33. PARKING
For the Term of this Lease, Tenant shall have the right to rent from
Landlord on a monthly basis up to twelve (12) unreserved parking spaces in the
Levi's Plaza Garage (located at 101 Lombard Street) that are accessible to
Tenant during the business hours of the Levi's Plaza Garage. All spaces shall
be rented by Tenant at the then prevailing monthly rate established by
Landlord from time to time or Landlord's agents for such parking access. As of
the date hereof, the prevailing monthly rate for parking spaces is Two Hundred
Twenty-Five Dollars ($225) per month for unreserved spaces, Two Hundred Fifty
Dollars ($250) per reserved space, and Three Hundred Dollars ($300) per month
for twenty-four (24) hour access spaces. Notwithstanding the foregoing, from
Commencement Date through the third (3rd) anniversary of the Commencement
Date, Tenant shall not be required to pay monthly rent on six (6) of the
twelve (12) unreserved parking spaces granted to Tenant pursuant to this
Article 33 and such six (6) unreserved parking spaces shall be accessible to
Tenant twenty-four (24) hours a day and seven (7) days a week. Tenant shall be
responsible for any taxes imposed by any governmental authority in connection
with such spaces, which taxes shall be included in the monthly rate. Tenant's
continued right to use such parking spaces is conditioned upon Tenant and
Tenant's employees abiding by all rules and regulations which are prescribed
from time to time for the orderly operation and use of the parking facility.
Landlord specifically reserves the right to change the location, size,
configuration, design, layout and all other aspects of the parking facility,
and Tenant acknowledges and agrees that Landlord may, without incurring any
liability to Tenant and without any abatement of Rent under this Lease, from
time to time, close-off or restrict access to the parking facility for
purposes of permitting or facilitating any such maintenance, construction,
alterations or improvements, provided, however, that Landlord shall not reduce
the number of unreserved parking spaces made available to Tenant, and
notwithstanding the foregoing. Landlord may totally or partially delegate its
responsibilities hereunder to a parking operator in which case such operator
shall have the rights of control as delegated by Landlord. The parking spaces
rented by Tenant pursuant to this Section are provided to Tenant solely for
use by Tenant's own personnel (not including Tenant's invitees and guests) and
such passes may not be transferred, assigned, subleased or otherwise alienated
by Tenant without Landlord's prior approval. Minimum garage hours are
presently 6:00 a.m. to 10:00 p.m., Monday through Friday.
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34. BROKERS
Neither Tenant nor Landlord have had any contact or dealings regarding
the leasing of the Premises, or any communication in connection with the
subject matter of this transaction, through any real estate broker or other
person who can claim a right to a commission or finder's fee in connection
with the lease, except for The CAC Group, which represents Landlord and The
Staubach Company ("Staubach"), which represents Tenant. CAC Group's
commissions or fees shall be provided for pursuant to a separate agreement
between Landlord and CAC Group. In addition, Landlord shall pay a fee to
Staubach at the rate of One and 50/100 Dollars ($1.50) per rentable square
foot per year not to exceed Ten Dollars ($10.00) per rentable square foot in
the aggregate (the "Staubach Fee"). Upon full execution of this Lease by
Landlord and Tenant, Landlord shall pay fifty percent (50%) of the Staubach
Fee to Staubach. On the date that Tenant commences occupancy of the Premises,
Landlord shall pay the remaining fifty percent (50%) of the Staubach Fee to
Staubach. In the event that Staubach makes a claim for a commission or
finder's fee in excess of the Staubach Fee, Tenant shall be responsible for
said commission or fee and all costs and expenses (including reasonable
attorneys' fees) incurred by the Landlord in defending against the same. In
the event that any other broker or finder other than the CAC Group or Staubach
makes a claim for a commission or finder's fee based upon any contract,
dealings or communication, the party whose conduct is the basis for the broker
or finder making its claim shall be responsible for said commission or fee and
all costs and expenses (including reasonable attorneys' fees) incurred by the
other party in defending against the same.
35. OPTION TO EXTEND
35.1 So long as Tenant, or a Tenant Affiliate, Tenant Successor and/or
Business Partner subject to all the terms and conditions of Sections 16.5 and
16.6 above, occupies collectively at least two (2) contiguous floors of the
Premises, Tenant shall have one option ("Extension Option") to extend the term
of this Lease with respect to the entirety of the Premises for a period of
five (5) years from the Expiration Date (the "Extension Period"), subject to
the following conditions:
(a) The option to extend shall be exercised, if at all, by notice
of exercise given to Landlord by Tenant not more than fifteen (15) months nor
less than nine (9) months prior to the Expiration Date.
(b) Tenant shall accept the Premises on an "AS-IS" basis.
(c) Anything herein to the contrary notwithstanding, if Tenant is
in default (beyond any applicable cure or grace period) under any of the
terms, covenants or conditions of this Lease, either at the time Tenant
exercises the Extension Option or at any time thereafter prior to or upon the
commencement date of the Extension Period, Landlord shall have, in addition to
all of Landlord's other rights and remedies provided in this Lease, the right
to terminate this option to extend upon notice to Tenant.
35.2 In the event the Extension Option is exercised in a timely fashion,
the Lease shall be extended for the Term of the Extension Period upon all of
the terms and conditions of this
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Lease, provided that the Base Rent for the Extension Period shall be the "Fair
Market Rent" for the Premises. For purposes hereof, "Fair Market Rent" shall
mean one hundred percent (100%) of the then prevailing rental rate per square
foot, including, without limitation, base rent, additional rent and all other
monetary payments and escalations, agreed to be paid by tenants generally for
first class space in a condition (including the state of build out) and
location (within the Building and any comparison buildings) comparable to the
Premises in comparable first class buildings in the San Francisco financial
and north waterfront districts and for comparable terms, pursuant to leases
entered into by such other tenants for substantially comparable-size space,
and considering the age and amenities of any comparison buildings and the
views afforded by any comparison space, and any tenant improvement allowances
and similar items granted in connection therewith. The Base Year for the
Extension Period shall be the calendar year 2012.
35.3 Not later than six (6) months prior to the Expiration Date,
Landlord shall notify Tenant in writing of Landlord's good faith estimate of
the Base Rent for the Extension Period, based on the provisions of Section
35.2 above. Within thirty (30) days after receipt of such notice from
Landlord, Tenant shall have the right either to (a) accept Landlord's
statement of Fair Market Rent as the Base Rent for the Extension Period; or
(b) elect to determine the Fair Market Rent pursuant to an appraisal process
to be conducted pursuant to the provisions of Section 35.4 below (the
"appraisal"). Failure on the part of Tenant to elect such appraisal process
within such thirty (30) day period shall constitute acceptance of the Base
Rent for the Extension Period as calculated by Landlord. If Tenant elects to
determinate the Fair Market Rent pursuant to the appraisal process, the
appraisal shall be concluded within ninety (90) days after the date of
Tenant's election, subject to extension for an additional thirty (30) day
period if a third appraiser is required and does not act in a timely manner.
To the extent that the appraisal has not been completed prior to the
expiration of any preceding period for which Base Rent has been determined,
Tenant shall pay Base Rent at the rate calculated by Landlord, with an
adjustment to be made once Fair Market Rent is ultimately determined by such
appraisal.
35.4 In the event that Tenant elects to determine the Fair Market Rent
pursuant to an appraisal process, the appraisal shall be conducted as follows:
(a) Tenant shall make a demand for an appraisal in writing within
thirty (30) days after service of Landlord's determination of Fair Market Rent
given under Section 35.3 above, specifying therein the name and address of the
person to act as the appraiser on its behalf. The appraiser shall be qualified
as a real estate appraiser (and shall be a member of the American Institute of
Real Estate Appraisers (MAI) or any comparable successor organization) with at
least ten (10) years professional experience or a real estate broker with at
least ten (10) years professional experience and shall be familiar with the
rental value of first-class commercial office space in the San Francisco
financial and north waterfront districts. Failure on the part of Tenant to
make a proper demand and appointment in a timely manner for such appraisal
shall constitute a waiver of the right thereto. Within fifteen (15) days after
the service of the demand for such appraisal, Landlord shall give notice to
Tenant, specifying the name and address of the person designated by Landlord
to act as the appraiser on its behalf who shall be similarly qualified.
(b) In the event that two appraisers are chosen pursuant to
Section 35.3 above, the appraisers so chosen shall, within fifteen (15) days
after the second appraiser is appointed,
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determine the Fair Market Rent. If the two appraisers are unable to agree upon
a determination of Fair Market Rent within such fifteen (15) day period, they,
themselves, shall appoint a third appraiser, who shall be a competent and
impartial person with qualifications similar to those required of the first
two appraisers pursuant to Section 35.3 above. In the event they are unable to
agree upon such appointment within seven (7) days after expiration of said
fifteen (15) day period, the third appraiser shall be selected by the parties
themselves, if they can agree thereon, within a further period of fifteen (15)
days. If the parties do not so agree, then either party, on behalf of both,
may request appointment of such a qualified person by the then Presiding Judge
of the Superior Court in and for the City and County of San Francisco, acting
in his private and not in his official capacity, and the other party shall not
raise any question as to such Judge's full power and jurisdiction to entertain
the application for and make the appointment.
(c) Where the Fair Market Rental Value cannot be resolved by
agreement between the two appraisers selected by Landlord and Tenant or
settlement between the parties during the course of the appraisal process, the
Fair Market Rental Value shall be determined by the three appraisers within
fifteen (15) days of the appointment of the third appraiser in accordance with
the following procedure: The appraiser selected by each of the parties shall
state in writing his or her determination of the Fair Market Rent supported by
the reasons therefor with counterpart copies to each party. The appraisers
shall arrange for a simultaneous exchange of such proposed resolutions. The
role of the third appraiser shall be to select which of the two proposed
resolutions most closely approximates his or her determination of the Fair
Market Rent. The third appraiser shall have no right to propose a middle
ground or any modification of either of the two proposed resolutions. The
resolution he or she chooses as most closely approximating his or her
determination shall constitute the decision of the appraisers and be final and
binding upon the parties.
(d) In the event of a failure, refusal or inability of any
appraiser to act, his or her successor shall be appointed by him or her, but
in the case of the third appraiser, his or her successor shall be appointed in
the same manner as provided for appointment of the third appraiser. Any
decision in which the appraiser appointed by Landlord and the appraiser
appointed by Tenant concur shall be binding and conclusive upon the parties.
Each party shall pay the fee and expenses of its respective appraiser and both
shall share the fee and expenses of the third appraiser, if any.
36. AMERICANS WITH DISABILITIES ACT ("ADA") AND SIMILAR ACTS
Notwithstanding anything to the contrary contained herein or in the
Lease, Tenant, at its sole cost and expense, shall (i) cause all alterations,
additions, improvements and repairs to the Premises to comply with the
provisions of the ADA, Title 24 of the California Administrative Code, and
other similar federal, state, and local laws and regulations, including,
without limitation, any alterations required under the ADA for the purposes of
"public accommodations" (as that term is used in the ADA), and (ii) reimburse
Landlord upon demand for any and all costs and expenses incurred by Landlord
to comply with ADA, Title 24, or such similar federal, state, or local laws
and regulations in any other portion of the Building in which the Premises are
located arising out of Tenant's use of or construction in the Premises. Except
as provided above, Tenant shall have no responsibility to comply with such
laws in portions of the Building outside of the Premises, but rather Landlord,
at its sole cost and expense, shall be responsible for such
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compliance in the common areas of the Building and the Project.
Notwithstanding the foregoing, Landlord shall complete the Landlord Work (as
defined in the Work Letter) in accordance with and at the times specified in
the Work Letter at Landlord's sole cost and expense, even if the same
conflicts with the provisions of this Section 36. Any work required to be done
by Landlord for compliance shall be completed by the Commencement Date.
37. HAZARDOUS SUBSTANCE DISCLOSURE
California law requires landlords to disclose to tenants the existence
of certain Hazardous Materials. Accordingly, the existence of gasoline and
other automotive fluids, asbestos containing materials, maintenance fluids,
copying fluids and other office supplies and equipment, certain construction
and finish materials, tobacco smoke, cosmetics and other personal items must
be disclosed. Gasoline and other automotive fluids are found in the garage
areas of the Project. 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 Building occupants 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 Materials. Certain adhesives, paints and other construction
materials and finishes used in portions of the Building may contain Hazardous
Materials. The Building 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 non-prescription drugs, perfumes, cosmetics
and other toiletries, and foods and beverages, some of which may contain
Hazardous Materials. By its execution of this Lease, Tenant acknowledges that
the notice set forth hereinabove shall constitute the notice required under
California Health and Safety Code Section 25915.5.
38. NO REPRESENTATIONS BY LANDLORD
Landlord and Landlord's agents have made no representations, warranties
or promises, express or implied with respect to the condition of the Real
Property, the Premises, the existing fixtures or the Building Systems serving
the Premises or as to any other thing or fact related thereto except as herein
expressly set forth, and no rights, easements or licenses are acquired by
Tenant by implication or otherwise except as expressly set forth herein.
39. SURRENDER
Tenant shall at the end of the Term surrender to Landlord the Premises
and all alterations, additions and improvements thereto in broom clean
condition and otherwise in the same condition as when received, ordinary wear
and tear and damage due to casualty excepted (other than to the extent Tenant
is required to repair such condition). Subject to Landlord's right to require
removal pursuant to Section 8.3 above, all improvements installed in the
Premises by Tenant, shall, without compensation to Tenant, then become
Landlord's property free and clear of all claims to or against them by Tenant
or any third person, and Tenant shall defend and indemnify Landlord against
all liability and loss arising from such claims or from Landlord's exercise of
the rights conferred by this Article 39.
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40. LANDLORD'S LIABILITY; SALE OF BUILDING
The term "Landlord," as used in this Lease, shall mean only the owner or
owners of the Building at the time in question. Tenant acknowledges and agrees
that the liability of Landlord with respect to its obligations under this
Lease, or arising in connection with the ownership, operation, management,
leasing, repair, renovation, alteration or any other matter relating to the
Building or the Premises, is limited to Landlord's interest in the Building,
and the rents, proceeds and profits derived therefrom, and Tenant agrees to
look solely to Landlord's interest in the Building and the rents, proceeds and
profits derived therefrom, to satisfy any claim or judgment against or any
liability or obligation of Landlord to Tenant under this Lease. In no event
shall any partner, officer, director, employee, trustee, beneficiary, advisor,
investment manager, manager, agent, member, advisor, or shareholder of
Landlord have any personal liability to Tenant with respect to any liability
or obligation of Landlord to Tenant, and no recourse shall be had by Tenant
against any such parties or the assets of any such parties to satisfy any
claim or judgment of Tenant for Landlord's breach of any of its obligations
under this Lease. In addition, in the event of any conveyance of title to the
Building, Landlord shall be relieved of all liability with respect to
Landlord's obligations to be performed under this Lease after the date of such
conveyance.
40.1 Without limiting the foregoing, it is expressly understood and
agreed that Morgan Stanley ("Morgan Stanley"), as the sole member of a limited
liability company that is one of the partners in the entity constituting
Landlord, is acting solely on behalf and for the benefit of Separate Account
No. PPF-JV870 and any liability Morgan Stanley may have hereinunder shall be
limited to, and payable and collectible only out of, assets allocated to, or
held by Morgan Stanley for the benefit of Separate Account No. PPF-JV870
(including, without limitation, the subject property) and no other property or
asset of Morgan Stanley, or its employees, shareholders, contractholders or
policyholders, shall be subject to any lien, levy, execution, setoff or other
enforcement procedure for satisfaction of any right or remedy of Landlord in
connection with the transaction contemplated hereby.
41. SECURITY
Throughout the term of the Lease, Landlord shall provide security to the
Building that consists of twenty-four (24) hours a day and seven (7) days a
week (i) security cameras and alarms monitoring the Building, and (ii) card
key only access to the Building outside of ordinary business hours and on
Holidays. From the Effective Date and continuing throughout the Term, Landlord
shall provide two (2) security guards patrolling the Project twenty-four (24)
hours a day and seven (7) days a week; provided, however, that at any time
after the fourth (4th) anniversary of the Effective Date, if the Project is
less than fifty percent (50%) occupied, Landlord, upon not less than thirty
(30) days notice to Tenant, Landlord may reduce the number of security guards
patrolling the Project to one (1) security guard. In addition, throughout the
Term, during the period beginning approximately thirty (30) minutes before
sundown and ending at 9:00 p.m. on Business Days, Landlord shall arrange for
one escort to accompany Tenant's employees and visitors as they walk from the
Building to locations in the Project or the street entrance of the Levi's
Plaza Garage at 101 Lombard Street. Tenant shall call Building security or
such other party as Landlord may designate in writing from time to time, to
request the accompaniment of an escort. The response time of such escorts
shall be reasonably prompt in
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comparison with the response time for similar escort services at comparable
buildings. Use of the escort service shall be subject to such reasonable rules
and procedures as Landlord may establish and change in its reasonable
discretion, from time to time. Notwithstanding the foregoing, if, after
consultation with Tenant, Landlord reasonably determines that Tenant is not
using such escort service except to an insubstantial degree, or that one or
more alternative services then being made available to Tenant, by Landlord or
otherwise (such as the shuttle service described in Article 42 below), are
collectively providing substantially the same benefit to Tenant as that
provided by the escort service, Landlord may temporarily or permanently reduce
or terminate such escort service.
Notwithstanding the provisions of this Article 41, Tenant acknowledges
and agrees that neither Landlord's agreement to provide such security services
nor Landlord's actual provision of the same pursuant to this Lease shall
directly or indirectly create any liability (and Tenant hereby waives any
claim based on any such liability) on the part of Landlord to Tenant, any
persons occupying or visiting the Premises or the Building, or any other
person or entity with respect to any loss by theft, injury or loss of life, or
any other damage suffered or incurred in connection with any entry into the
Premises or any other breach of security with respect to the Premises or the
Building.
42. SHUTTLE SERVICE
During the term of this Lease and any renewal periods, Landlord shall
provide Tenant's employees, sublessees, and visitors with use of the Levi's
Plaza shuttle service system at no cost to Tenant. Such shuttle shall run only
on Business Days and pursuant to approximately the following schedule: every
twenty (20) minutes from 6:30 a.m. to 9:00 a.m. and 4:30 p.m. to 7:00 p.m. and
every forty (40) minutes from 9:00 a.m. to 4:30 p.m.. Such shuttle service
shall be subject to such rules and procedures as Landlord may reasonably
impose, in its sole discretion, from time to time. Notwithstanding the
foregoing, if, after consultation with Tenant, Landlord reasonably determines
that Tenant is not using such shuttle service except to an insubstantial
degree, then, Landlord may temporarily or permanently reduce or terminate such
shuttle service; provided, however, that prior to Landlord temporarily or
permanently reducing or terminating the shuttle service, Landlord shall first
notify Tenant of its intention to terminate the shuttle service by its
employees, subtenant and visitors. Landlord shall then re-evaluate (based on
the standard set forth in the prior sentence) whether to reduce or terminate
such shuttle service.
43. CAFETERIA
Tenant shall have the right to access the Levi Strauss Cafeteria at the
Project at any time in which the Levi Strauss Cafeteria is designated by Levi
Strauss as open for use by Tenant. Tenant's access and use of the Levi Strauss
Cafeteria shall be subject to the Rules and Regulations of the Building, which
Rules and Regulations are subject to change as determined by Landlord, in its
sole discretion, from time to time.
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44. RIGHT OF FIRST OFFER
44.1 During the term of this Lease (the "First Offer Period"), Landlord
grants to the Original Tenant (as defined in Article 32 hereof) a one time
right of first offer to lease the remainder of the First Floor space in the
Building once such space becomes available in its entirety for lease to third
party tenants during the First Offer Period (the "First Offer Space"). This
right of first offer may only be exercised by the Original Tenant if it
occupies the entire Premises. Notwithstanding the foregoing, such right of
first offer shall be subordinate to any and all rights of existing tenants in
the Project and any renewals or expansions currently negotiated with such
existing tenants (collectively, the "Superior Right Holders"). The Original
Tenant's right of first offer shall be on the terms and conditions set forth
in this Section 45.
44.2 Procedure for Offer. During the First Offer Period, Landlord shall
notify the Original Tenant (the "First Offer Notice") when First Offer Space
becomes available for lease to third parties, provided that no Superior Right
Holder wishes to lease such space and that such right of first offer has not
otherwise terminated as set forth in Section 44.5 below or as otherwise set
forth in this Section 44. Pursuant to such First Offer Notice, Landlord shall
offer to lease to the Original Tenant the then available First Offer Space.
The First Offer Notice shall describe the space so offered to the Original
Tenant and shall set forth the base rent and additional rent, the term for
such lease of space, and the other material economic terms and other lease
terms upon which Landlord is willing to lease such space to Tenant. The terms
and conditions contained in the First Offer Notice shall be based upon the
then prevailing fair market rent and economic terms. The Original Tenant
acknowledges and agrees that during the First Offer Period and in connection
with this right of first offer, Landlord shall have the right to request from
the Original Tenant copies of financial statements, and based on such
financial information, to include within the First Offer Notice such economic
terms as Landlord deems appropriate, including without limitation, a security
deposit or a lease guaranty.
44.3 Procedure for Acceptance. If the Original Tenant wishes to exercise
the Original Tenant's right of first offer with respect to the space described
in the First Offer Notice, then within seven (7) business days after delivery
of the First Offer Notice to the Original Tenant, the Original Tenant shall
deliver notice to Landlord of the Original Tenant's intention to exercise its
right of first offer with respect to the entire space described in the First
Offer Notice either on the terms contained in the First Offer Notice or on
terms to be negotiated between Landlord and the Original Tenant as provided
herein (the "Exercise Notice"). If the Original Tenant does not so notify
Landlord within such seven (7) business day period, the right of first offer
shall terminate and the Original Tenant shall have no further right of first
offer under this Section 44 with respect to the particular First Offer Space
set forth in the First Offer Notice. Notwithstanding anything to the contrary
contained herein, the Original Tenant must elect to exercise its right of
first offer, if at all, with respect to all of the First Offer Space offered
by Landlord to the Original Tenant, and the Original Tenant may not elect to
lease only a portion thereof. If the Original Tenant does not elect to
exercise its right of first offer with respect to all of the First Offer Space
then offered by Landlord, the right of first offer shall terminate and the
Original Tenant shall have no further right of first offer. In the event that
the Original Tenant does deliver an Exercise Notice to Landlord within the
seven (7) business day period, and the Exercise Notice states that such
exercise shall be on terms to be negotiated between Landlord and the Original
Tenant, then Landlord and the Original Tenant agree to negotiate in good faith
for a period of up to twenty
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(20) days after Landlord's receipt of the Exercise Notice to determine the rent
and other material economic terms and other lease terms for the space described
in the First Offer Notice based on the then prevailing fair market rent and
economic terms. If Landlord and the Original Tenant cannot in good faith agree
upon the rent and other material economic terms and other lease terms for the
space described in the First Offer Notice within such twenty (20) day period,
then Landlord shall be free to lease the space described in the First Offer
Notice to any third party, the right of first offer shall terminate and the
Original Tenant shall have no further right of first offer. Landlord and the
Original Tenant acknowledge and agree that the determination of the rent and
other material economic terms and lease terms for the space described in the
First Offer Notice shall not be subject to arbitration or other judicial
determination in the event that Landlord and the Original Tenant are unable to
agree thereon; provided, however, nothing contained herein shall excuse either
Landlord's or the Original Tenant's obligation to act in good faith.
44.4 Execution of Lease. If the Original Tenant timely exercises its
right to lease the space described in the First Offer Notice, Landlord and the
Original Tenant shall within thirty (30) days thereafter execute a lease
agreement for such First Offer Space upon the terms and conditions set forth
in the First Offer Notice or as otherwise negotiated between Landlord and
Tenant as provided in subsection (b) above. Tenant shall commence payment of
rent for the space described in the First Offer Notice and the term of such
First Offer Space shall commence ("First Offer Commencement Date") upon the
date set forth in the First Offer Notice or as otherwise negotiated between
Landlord and Tenant as provided in subsection (b) above.
44.5 Termination of Right of First Offer. Notwithstanding anything to
the contrary contained herein, if any default exists under this Lease beyond
any applicable cure period either at the time Tenant exercises the right of
first offer or at any time thereafter prior to or upon the First Offer Space
Commencement Date, Landlord shall have, in addition to all of Landlord's
rights and remedies under this Lease, the right to terminate the Original
Tenant's right to lease the First Offer Space and to cancel unilaterally the
Original Tenant's exercise of its right of first offer.
45. OPTION TO TERMINATE
Tenant shall have a one-time right to terminate this Lease in its
entirety, which termination shall be effective as of February 1, 2010,
provided that Tenant delivers a written notice of termination to Landlord not
more than eighteen (18) months or less than twelve (12) months prior to
February 1, 2010, which notice shall be irrevocable. If Tenant elects to
terminate this Lease hereunder on or before February 1, 2010, Tenant shall pay
to Landlord, in addition to all sums payable hereunder for the period prior to
February 1, 2010, a fee equal to Eight Hundred Fifty One Thousand One Hundred
Fifty Five Dollars ($851,155) (the "Termination Fee"). Notwithstanding the
foregoing, if Tenant is in default (beyond any applicable cure or grace
period) under any of the terms, covenants or conditions of this Lease, either
at the time Tenant delivers the termination notice or at any time thereafter
prior to the effective date of the termination, Landlord shall have, in
addition to all of Landlord's other rights and remedies under this Lease, the
right to terminate Tenant's right to terminate this Lease hereunder and to
cancel unilaterally Tenant's exercise of its right to terminate this Lease
hereunder, in which event the expiration date of this Lease shall be and
remain the scheduled expiration date of the Term.
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46. ADDITIONAL SPACE
Pursuant to the terms of this Article 46, Landlord hereby leases to
Tenant and Tenant hereby hires from Landlord the space in the Building behind
the Building lobby on the First (1st) Floor of the Building, which space
consisting of approximately 420 rentable square feet and is approximately
delineated on the floor plan or plans attached hereto as EXHIBIT G
(hereinafter, the "Additional Space"). All terms and conditions of this Lease
shall apply to the lease by Tenant of the Additional Space except that (i)
Tenant's lease of the Additional Space shall be a month-to-month periodic
tenancy subject to termination by either party serving on the other at least
thirty (30) days' written notice of its intention to terminate Tenant's lease
of the Additional Space, (ii) Tenant shall pay no Base Rent or Additional Rent
for the term of Tenant's lease of the Additional Space, (iii) Tenant shall
only be permitted to have standard directory signage in the main lobby of the
Building and shall not be permitted any other signage on the First (1st) Floor
of the Building, and (iv) Tenant shall not be permitted to construct any
Improvements or make any tenant improvements or installations with respect to
the Additional Space.
47. MISCELLANEOUS
47.1 The words "Landlord" and "Tenant" as used herein shall include the
plural as well as the singular. If there is more than one Tenant, the
obligations under this Lease imposed on Tenant shall be joint and several. The
captions preceding the articles of this Lease have been inserted solely as a
matter of convenience and such captions in no way define or limit the scope or
intent of any provision of this Lease.
47.2 The terms, covenants and conditions contained in this Lease shall
bind and inure to the benefit of Landlord and Tenant and, except as otherwise
provided herein, their respective personal representatives and successors and
assigns; provided, however, that upon the sale, assignment or transfer by
Landlord named herein (or by any subsequent landlord) of its interest in the
Building as owner or Tenant, including any transfer by operation of law,
Landlord (or any subsequent landlord) shall be relieved from all subsequent
obligations and liabilities arising under this Lease subsequent to such sale,
assignment or transfer.
47.3 If any provision of this Lease or the application thereof to any
person, entity or circumstance shall, to any extent, be invalid or
unenforceable, the remainder of this Lease, or the application of such
provision to persons, entities or circumstances other than those as to which
it is invalid or unenforceable, shall not be affected thereby, and each
provision of this Lease shall be valid and be enforced to the full extent
permitted by law.
47.4 This Lease shall be construed and enforced in accordance with the
laws of the State of California.
47.5 This instrument, including the exhibits hereto, which are made a
part of this Lease, contains the entire agreement between the parties and all
prior negotiations and agreements are merged herein.
47.6 In the event that either Landlord or Tenant fails to perform any of
its obligations under this Lease or in the event a dispute arises concerning
the meaning or interpretation of any provision of this Lease, the defaulting
party or the party not prevailing in such dispute, as the
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case may be, shall pay any and all costs and expenses incurred by the other
party in enforcing or establishing its rights hereunder, including, without
limitation, court costs and reasonable counsel fees and disbursements. Any
such attorneys' fees and other expenses incurred by either party in enforcing
a judgment in its favor under this Lease shall be recoverable separately from
and in addition to any other amount included in such judgment, and such
attorneys' fees obligation is intended to be severable from the other
provisions of this Lease and to survive and not be merged into any such
judgment.
47.7 Tenant covenants and agrees that no diminution of light, air or
view by any structure that may hereafter be erected (whether or not by
Landlord) shall entitle Tenant to any reduction of the Base Rent or Additional
Charges under this Lease, result in any liability of Landlord to Tenant, or in
any other way affect this Lease or Tenant's obligations hereunder. Landlord
hereby represents and warrants that as of the date of this Lease, to
Landlord's actual knowledge (as such terms are defined in Section 11.5(d)
hereof), there is no planned improvement that would diminish the light, air or
view to and from the Building.
47.8 Any holding over after the expiration of the Term without
Landlord's prior written consent shall: (a) constitute a default by Tenant;
(b) automatically increase the Base Rent and estimated Taxes and Expenses to
one hundred fifty percent (150%) of the monthly amounts for such items payable
by Tenant hereunder prior to such expiration; and (c) entitle Landlord to
exercise any or all of its remedies as provided in Article 18 hereof,
notwithstanding that Landlord may elect to accept one or more payments of Base
Rent and Additional Charges from Tenant.
47.9 Except as provided in Article 13 hereof and Article 7 (and the Work
Letter), time is of the essence in respect of all provisions of this Lease in
which a definite time for performance is specified.
47.10 The term "gross negligence" as used in this Lease shall mean "any
action or inaction taken with a reckless disregard for the consequences."
WAIVER OF TRIAL BY JURY. THE RESPECTIVE PARTIES HERETO SHALL AND THEY HEREBY
DO WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY
EITHER OF THE PARTIES HERETO AGAINST THE OTHER UNDER THIS LEASE. IF LANDLORD
COMMENCES ANY SUMMARY PROCEEDING AGAINST TENANT, TENANT WILL NOT INTERPOSE ANY
COUNTERCLAIM OF WHATEVER NATURE OR DESCRIPTION IN ANY SUCH PROCEEDING (UNLESS
FAILURE TO IMPOSE SUCH COUNTERCLAIM WOULD PRECLUDE TENANT FROM ASSERTING IN A
SEPARATE ACTION THE CLAIM WHICH IS THE SUBJECT OF SUCH COUNTERCLAIM), AND WILL
NOT SEEK TO CONSOLIDATE SUCH PROCEEDING WITH ANY OTHER ACTION WHICH MAY HAVE
BEEN OR WILL BE BROUGHT IN ANY OTHER COURT BY TENANT.
48. TERMINATION OF LEASE
Tenant's obligations under this Lease are conditioned upon its
acceptance, in its sole discretion, of the environmental condition of the Real
Property. If Tenant has not removed the
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foregoing condition in writing within three (3) business days of the Lease
Date, this Lease shall terminate and neither party shall have any further
rights or obligations hereunder. Simultaneously with any written removal of
such condition, Tenant shall deliver the Security Deposit to Landlord as
provided in Section 29.1 hereof.
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease the day
and year first above written.
LANDLORD: BLUE JEANS EQUITIES WEST,
a California general partnership
By: Plaza B LLC,
a Delaware limited liability company
Its: General Partner
By: /s/ Gerson Bakar
---------------------------
Gerson Bakar
Its: Member
TENANT: PLANETOUT INC.,
a Delaware corporation
By: /s/ Jeffrey T. Soukup
---------------------------------------
Its: Chief Financial Officer
---------------------------------------
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LIST OF EXHIBITS
Exhibit A-1 Description of Land
Exhibit A-2 Plat of Levi's Plaza
Exhibit B Floor Plan of Premises
Exhibit C Notice of Commencement Date
Exhibit D Work Letter
Schedule 1 Construction Schedule
Schedule 2 Building Standard Work
Exhibit E Building Rules and Regulations
Schedule E-1 Janitorial Specifications
Exhibit F Fixture, Furniture & Equipment
Exhibit G Floor Plan of Additional Space
Schedule 5.1 Cost of Earthquake Insurance
Schedule 11.2 Environmental Reports and Memorandum
<PAGE>
EXHIBIT A-1
DESCRIPTION OF LAND
(Legal description of land follows)
A-1-1
<PAGE>
EXHIBIT A-2
PLAT OF LEVI'S PLAZA COMPLEX
(Plat map of Levi's Plaza complex follows)
A-2-1
<PAGE>
EXHIBIT B
FLOOR PLAN OF PREMISES
(Floor plan of premises follows)
B-1
<PAGE>
EXHIBIT C
FORM OF NOTICE OF COMMENCEMENT DATE
THIS MEMORANDUM OF COMMENCEMENT DATE is executed as of the ___ day of
___________, 200_, by and between BLUE JEANS EQUITIES WEST, a California
general partnership ("Landlord") and ___________________, a
___________________ ("Tenant").
R E C I T A L S
A. Landlord and Tenant entered into that certain Office Lease ("Lease"),
dated as of _____________, 200_, pursuant to which Landlord leased to Tenant,
and Tenant leased from Landlord, a portion of that certain building commonly
known as 1355 Sansome Street, which building is located at 1355 Sansome
Street, San Francisco, California, and more particularly described in the
Lease.
B. Section 3.2 of the Lease requires Landlord and Tenant to execute a
memorandum identifying the Commencement Date of the original Term. Any terms
not defined herein shall have the meaning set forth in the Lease.
NOW, THEREFORE, the parties hereby agree as follows:
1. The Commencement Date of the original Term of the Lease is
___________, 200_.
2. The Expiration Date of the original Term of the Lease is
___________, 20__.
3. The Rentable Area of the Premises is ______________.
4. The annual Base Rent is $_____________.
5. Tenant's Share means _______%.
6. Tenant's allocable share of Exterior Common Area is ______%.
7. The Security Deposit is $____________.
C-1
<PAGE>
IN WITNESS WHEREOF, Landlord and Tenant have executed this Memorandum
the day and year first above written.
LANDLORD: BLUE JEANS EQUITIES WEST,
a California general partnership
By: Plaza B LLC, a Delaware limited
liability company, as a General
Partner
By: ______________________
Gerson Bakar
Its: Member
TENANT: PLANETOUT INC.,,
a Delaware corporation
By:
------------------------------------------
Its:
--------------------------------------
C-2
<PAGE>
EXHIBIT D
WORK LETTER
The undersigned, Landlord and Tenant, respectively, are executing
simultaneously with this Work Letter a written Office Lease covering premises
as described in EXHIBIT B thereto (hereinafter referred to as the "Premises")
comprising a portion of a Building commonly known 1355 Sansome Street, San
Francisco, California (the "Lease"), and hereby attach this Work Letter to the
Lease as EXHIBIT D thereto. Except as otherwise defined in this EXHIBIT D, all
capitalized terms used herein which have meanings as defined in the Lease.
The purpose of this Work Letter is to delineate the responsibilities of
Landlord and Tenant with respect to the costs and construction of the interior
improvements to the Premises to be performed by Tenant (hereinafter referred
to as the "Improvements") and certain work to be performed by Landlord.
SECTION 1. DEFINITIONS.
1.1 For purposes of this Work Letter, the parties agree that the
following terms shall have the following meanings:
(a) "Tenant's Architect" shall mean Richard Pollack & Associates
or any other architect selected by Tenant which is duly licensed in
California, a union member and approved by Landlord. Tenant's Architect
shall contract directly with and be paid by Tenant.
(b) "Engineer" shall mean an engineer selected by Tenant which is
duly licensed in California, a union member and reasonably approved by
Landlord. Engineer shall contract with Tenant's Architect.
(c) "General Contractor" shall mean Peacock Construction or any
other general contracting firm selected to construct the Tenant
Improvements. General Contractor shall contract with Tenant and be paid
by Tenant. Landlord shall have the right to reasonably approve the list
of general contractors other than Peacock Construction receiving bid
requests, which general contractors shall be union members.
(d) "Design Development Drawings" shall mean the preliminary
architectural plans, drawings and specifications in sufficient detail to
be used for the purpose of the development of MEP Drawings and for
review and approval by Landlord. The Design Development Drawings shall
in any event include partition and door location drawings, telephone and
electric drawings, and reflected ceiling drawings.
(e) "MEP Drawings" shall mean the sprinkler, air conditioning,
heating, electrical and plumbing drawings for the Premises.
(f) "Construction Drawings" shall mean the final architectural
plans, drawings and specifications along with fully coordinated MEP
Drawings which are suitable in all respects for submission to the
Building Department of the City of San
D-1
<PAGE>
Francisco in order to obtain all necessary building permits. The
Construction Drawings shall indicate that such work will not exceed the
design load capacities and performance criteria of the Building,
including, without limitation, its electrical, HVAC and weight
capacities, and shall include construction means and method.
(g) "Construction Schedule" shall mean the schedule in the form
attached hereto as Schedule 1 to be delivered by Tenant to Landlord
within thirty (30) days after the Landlord's delivery of the Premises to
Tenant.
SECTION 2. LANDLORD WORK. Landlord shall, at its sole cost and expense, and as
soon as reasonably possible following the Commencement Date, perform the
following work at the Building, unless such work has already been completed
(collectively, the "Landlord Work"):
(a) Finished men's and women's restrooms on each floor of the
Premises in compliance with current code;
(b) Finished electrical and telephone closets, elevators and
elevator lobbies at the Building in compliance with current code;
(c) Building fire exit stairways in accordance with current code
(Tenant shall have the right to use and secure the Building stairways to
travel between Tenant's floors);
(d) Mechanical equipment room with fan in compliance with current
code;
(e) A primary HVAC duct loop from the mechanical equipment room
around the Building core on each floor of the Premises in compliance
with current code;
(f) Landlord shall minimize sound level and vibrations coming from
the HVAC system into areas of the Premises to a level reasonably
satisfactory to Tenant;
(g) A fire protection alarm and communication system for the
Building in compliance with current code;
(h) Life safety and support system (including fire dampers at
elevators) at the Building in compliance with current code (including
connection of all life safety systems within the Building to the
Building's main system, if applicable);
(i) All necessary repairs to the elevators at the Building as
necessary to provide a smooth ride, without sudden stops or jolts;
(j) Abate all hazardous materials existing at the Building or the
Premises that would affect the Improvements or Tenant's use of the
Premises; and
(l) All work necessary to ensure that Building common areas
(including elevator and elevator lobbies on each floor) and restrooms
comply with the ADA.
D-2
<PAGE>
Landlord shall perform the Landlord Work in good and workmanlike manner and in
compliance with all applicable laws and Landlord shall complete such work in a
prompt manner so as to not interfere with or delay the construction of the
Improvements.
SECTION 3. PLANS AND SPECIFICATIONS.
3.1. No work shall commence in the Premises until: (i) the Lease is duly
signed by Tenant and Landlord, and (ii) Landlord approves Tenant's Final Plans
(as defined below) for the Improvements as provided below.
3.2. Subject to the provisions of Section 7 of this Work Letter, Tenant
may engage, at Tenant's sole expense, Tenant's Architect to prepare the Design
Development Drawings. Tenant will be responsible for delivery of the Design
Development Drawings to Landlord in accordance with the Construction Schedule.
3.3. From the Design Development Drawings, Tenant will, through Tenant's
Engineer, provide Landlord with mechanical and electrical plans and related
specifications which collectively comprise the MEP Drawings. Tenant shall
direct Tenant's Engineer to provide to Landlord the MEP Drawings in accordance
with the Construction Schedule. Tenant shall retain a firm to be approved by
Landlord as Tenant's Engineer (which approval shall not be unreasonably
withheld or delayed), provided that such firm's fees are competitive and that
it will be able to work in accordance with the Construction Schedule.
3.4. From the Design Development Drawings and the MEP Drawings, Tenant's
Architect shall prepare the Construction Drawings. Tenant shall be responsible
for delivery of the Construction Drawings in accordance with the Construction
Schedule. The Construction Drawings shall include mechanical and electrical
drawings and decorating plans showing the location of partitions, reflected
ceiling plans including light fixtures, electrical outlets, telephone outlets,
sprinklers, doors, wall finishes, floor coverings, and all other Improvements
to be installed Tenant. The Design Development Drawings and Construction
Drawings are referred to herein as "Tenant's Plans."
3.5. Tenant's Plans shall be subject to Landlord's approval, which
approval shall not be unreasonably withheld. If Landlord disapproves Tenant's
Plans, or any portion thereof, such disapproval shall be accompanied by the
revisions that Landlord reasonably requires in order to obtain Landlord's
approval. As promptly as reasonably possible thereafter, but in no event later
than fourteen (14) days after Landlord's notice, Tenant shall submit to
Landlord plans and specifications incorporating the revisions required by
Landlord. Said revisions shall be subject to Landlord's approval, which shall
not be unreasonably withheld. If Landlord shall not respond within ten (10)
business days after receipt of Tenant's Plans (or five (5) business days with
respect to any revisions to Tenant's Plans), such plans shall be deemed
approved by Landlord. The final plans and specifications approved by Landlord
shall be referred to as the "Final Plans."
3.6. If Tenant shall request any change, addition or alteration in the
Final Plans, Tenant's Architect shall prepare and deliver to Landlord plans
with respect to such change, addition or alteration. As soon as practical,
Landlord shall notify Tenant if it approves the revised Final Plans which set
forth the requested change, addition or alteration. Landlord's
D-3
<PAGE>
approval of the revised Final Plans shall not be unreasonably withheld,
conditioned or delayed. If Landlord approves the revised Final Plans, then
Tenant shall instruct the General Contractor to proceed as soon as reasonably
practical thereafter. If Landlord does not approve such additional plans,
construction of the Premises shall proceed in accordance with the previously
approved Final Plans.
3.7. Although Landlord has the right to review, request revisions to and
approve the Final Plans and any revised Final Plans, Landlord's sole interest
in doing so is to protect the Building and Landlord's interest in the
Building. Accordingly, Tenant shall not rely upon Landlord's approval for any
purpose other than for the purpose of acknowledging the consent of Landlord to
proceed with the requested action, and Landlord shall incur no liability of
any kind by reason of the granting of such approvals.
SECTION 4. BUILDING STANDARD WORK; REMOVAL OF IMPROVEMENTS.
4.1. Tenant agrees to design the Premises using the items shown on
SCHEDULE 2 attached hereto, which collectively comprise the "Building Standard
Work," except that Tenant may select different materials of equal or better
quality in place of Building Standard Work. Such selection shall be indicated
on the Final Plans. Landlord shall have the right to disapprove any
substitution which does not conform to all applicable codes or is of inferior
quality to the Building Standard Work item replaced.
4.2. Upon the expiration or sooner termination of the Lease, Tenant
shall be obligated to remove any and all Improvements which: (a) will
materially affect the structure or structural components of the Building
(including by way of illustration but not limitation, the construction of
interior stairwells, skylights, dumbwaiters and additional floor supports), or
the Building Systems, (b) will be visible from the exterior of the Building,
or (c) will be located outside or underneath the Building. At the time of its
approval, Landlord shall designate which, if any, Improvements must be removed
by Tenant pursuant to the preceding sentence or any other Improvements that
Landlord will require Tenant to remove upon the expiration or sooner
termination of the Lease.
SECTION 5. CONSTRUCTION OF IMPROVEMENTS.
5.1 Provided that the Final Plans are approved by Landlord, Tenant shall
cause the Improvements to be installed by the General Contractor in accordance
with the Construction Schedule. Tenant shall substantially complete any and
all Improvements to the Premises in accordance with the Final Plans (as the
same may be revised pursuant to Section 3.6 of this Work Letter). The
Improvements shall be made and performed in a safe and workmanlike manner,
using only first-class materials, in accordance with the provisions of the
following provisions:
(a) No work with respect to the Improvements shall proceed without
Landlord's reasonable prior written approval of:
(1) Tenant's subcontractor(s);
(2) certificates of insurance furnished to Landlord from a
company or companies reasonably approved by Landlord
D-4
<PAGE>
(i) by Tenant's general contractor, evidencing
comprehensive general liability insurance (with
contractual liability and products and completed
operations coverages) with a minimum combined single
limit for bodily injury and property damage in an
amount not less than Two Million Five Hundred Thousand
Dollars ($2,500,000) per occurrence, endorsed to show
Landlord as an additional insured and endorsed to show
a waiver of subrogation by the insurer to any claims
the insurer may have against Landlord,
(ii) by any and all subcontractors, evidencing
comprehensive general liability insurance (with
contractual liability and products and completed
operations coverages) with a minimum combined single
limit for bodily injury and property damage in an
amount not less than One Million Dollars ($1,000,000)
per occurrence, endorsed to show Landlord as an
additional insured and endorsed to show a waiver of
subrogation by the insurer to any claims the insurer
may have against Landlord, and
(iii) by Tenant evidencing builder's risk
insurance with respect to the Improvements, in such
amounts as are deemed reasonable by Landlord, and
workers' compensation insurance, as required by law.
(b) Except as otherwise expressly provided in Section 7 below, the
Improvements shall be undertaken at Tenant's sole cost and expense and
in strict conformance with all applicable laws, regulations, building
codes and the requirements of any building permit and all other
applicable permits or licenses issued with respect to such work. Tenant
shall be solely responsible for obtaining all such permits and licenses
from the appropriate governmental authorities, and any delay in
obtaining such permits or licenses shall not be deemed to extend the
commencement date or the expiration date of the term of the Lease or to
waive or toll Tenant's rental and other obligations with respect to the
Premises, except to the extent such delay is caused by the failure of
Landlord to complete the Landlord Work as required pursuant to Section 2
hereof. Copies of all permits and licenses shall be furnished to
Landlord before any work is commenced, and any work not acceptable to
any governmental authority or agency having or exercising jurisdiction
over such work, or not reasonably satisfactory to Landlord, shall be
promptly replaced and corrected at Tenant's expense.
(c) All work by Tenant shall be scheduled through Landlord and
shall be diligently and continuously pursued from the date of its
commencement through its completion. Landlord hereby agrees to use its
reasonable efforts to facilitate such work and to ensure access by
Tenant to and availability to Tenant of all freight elevators and all
such similar facilities necessary to facilitate such work, subject,
however, to the reasonable rules and regulations established by Landlord
for construction work in the Building. All work shall be conducted in a
manner that maintains harmonious labor relations and does not
unreasonably interfere with or delay any other work or activities being
carried out by Landlord in the Building. Landlord or Landlord's agent
shall have the right to enter the Premises and inspect the Premises and
the Improvements at all reasonable times during the construction of the
Improvements. Prior to February 1, 2005,
D-5
<PAGE>
Tenant shall not be charged for the use of any of the following items
serving the Premises: (i) freight elevators, (ii) security for the
Building as provided in Article 41 hereof, (iii) access to loading
docks, (iv) utilities used by Tenant during business hours on Business
Days, or (v) temporary HVAC used by Tenant.
(d) All payments by Tenant for work done by a subcontractor in
connection with the Improvements shall be conditioned upon Tenant's and
Landlord's receipt of (1) conditional lien waivers and releases upon
progress payments, executed by the General Contractor and such
subcontractor, covering the full amount disbursed through the date of
the disbursement, and (2) a conditional lien waiver and release upon
final payment covering the final payment amount, executed by the General
Contractor and such subcontractor.
(e) Notwithstanding anything to the contrary contained herein,
Tenant shall have the right to install a roof-top deck on the Building
in accordance with plans and specifications previously prepared on
behalf of the prior tenant of the Building (the "Existing Roof-Deck
Plans") or in accordance with such other plans and specifications as are
prepared by Tenant and which plans and specifications shall be separate
from the Final Plans (the "Tenant Roof-Deck Plans"), subject to (i)
Landlord's prior approval (which shall not be unreasonably withheld) of
the Tenant Roof-Deck Plans and (ii) approval of the construction of such
roof-deck from the applicable governmental entities. Tenant shall comply
at its sole cost and expense, with all laws, statutes, ordinances and
governmental rules, regulations and requirements applicable to the
construction of such roof-deck. Such roof-deck shall be deemed an
Improvement and shall be subject to all of the terms and conditions
hereof, including without limitation, Section 4.2 of this Work Letter.
Notwithstanding the foregoing, the Final Plans and the Roof-Deck Plans
shall be independent of one another such that construction of the Final
Plans shall not be dependent upon completion or approval of the
applicable Roof-Deck Plans. Upon execution of the Lease, Landlord shall
deliver to Tenant a set of the Existing Roof-Deck Plans.
(f) Notwithstanding anything to the contrary contained herein,
Tenant shall have the right to perform a cosmetic upgrade of the
Building lobby (the "Lobby Work"). The Lobby Work shall be subject to
the terms of Section 4.1 of this Work Letter. Tenant shall use its own
contractor to perform the Lobby Work, which contractor shall be
reasonably approved by Landlord. Landlord shall pay such contractor
directly for the cost of the Lobby Work; provided, however, that,
Landlord's obligations to pay for the Lobby Work shall in no event
exceed Ten Thousand Dollars ($10,000), which amount shall be independent
of the Tenant Improvement Allowance.
(g) Throughout the Term of this Lease, Tenant shall have the
option to request that Landlord, at Landlord's sole cost and expense and
in compliance with all applicable laws, regulations, building codes and
the requirements of any building permit, demise the space on the First
(1st) Floor of the Building in accordance with Exhibit B to the Lease in
a reasonably prompt manner following Tenant's written request. The cost
of such work shall be independent of the Tenant Improvement Allowance.
D-6
<PAGE>
SECTION 6. COMPLETION OF IMPROVEMENTS.
No delay in the completion of construction of the work described in this
Work Letter shall be considered in the determination of the Commencement Date
of the Lease.
SECTION 7. TENANT IMPROVEMENT ALLOWANCE.
7.1. Prior to the commencement of construction of the Improvements,
Tenant shall submit to Landlord a detailed cost breakdown of design and
construction costs for the Improvements (the "Construction Budget") for
Landlord's review and approval (which approval shall not be unreasonably
withheld and shall be based solely on Tenant's ability to provide Landlord
with reasonable evidence that Tenant can meet the financial obligations set
forth in the Construction Budget). In the event that the Tenant requests any
changes to the Final Plans, Tenant shall submit a revised Construction Budget
for Landlord's review and approval (which approval shall not be unreasonably
withheld and shall be based solely on Tenant's ability to provide Landlord
with reasonable evidence that Tenant can meet the financial obligations set
forth in the Construction Budget).
7.2. Subject to the terms and conditions of this Section 7, Landlord shall
reimburse Tenant up to a maximum amount of Twenty-Five Dollars ($25) per
rentable square foot of the Premises (the "Tenant Improvement Allowance") for
the construction of the Improvements and the other items and costs, all as
specifically provided in Section 7.3 hereof. Tenant shall bear the cost of all
Improvements in excess of the Tenant Improvement Allowance. Landlord shall
pay, within fifteen (15) days of receipt thereof, a share of each progress
billing from the General Contractor, Tenant's Architect and Engineers (each a
"Tenant Improvement Billing") determined by multiplying the amount of such
Tenant Improvement Billing by a fraction, the numerator of which is the amount
of the Tenant Improvement Allowance, and the denominator of which is the sum
of the estimated cost of all the Improvements as set forth on the Construction
Budget (as may be revised from time to time). At Tenant's request such amount
shall be paid directly to the General Contractor. Tenant shall pay the balance
of such Tenant Improvement Billing, provided that at such time as Landlord has
paid the entire Tenant Improvement Allowance on account of the Improvements,
all further Tenant Improvement Billings shall be paid entirely by Tenant.
Notwithstanding anything to the contrary contained herein, (i) Landlord shall
only be required to disburse Tenant up to a maximum of sixty-seven percent
(67%) of the Tenant Improvement Allowance prior to April 1, 2005, (ii)
Landlord shall only be required to disburse Tenant up to a maximum of
eighty-two percent (82%) of the Tenant Improvement Allowance prior to January
1, 2006, and (iii) on January 1, 2006, Landlord shall disburse the remaining
eighteen percent (18%) percent of the Tenant Improvement Allowance; provided,
however, that the amount of any such disbursement or reimbursement shall be
determined based on Landlord's share of the Tenant Improvement Billings as
determined pursuant to the third sentence of this Section 7.2. Notwithstanding
anything to the contrary contained herein, after the second (2nd) anniversary
of the Commencement Date, Landlord shall no longer be required to reimburse
Tenant for any portion of the Tenant Improvement Allowance. If upon completion
of the Improvements in the Premises and payment in full of the costs thereof,
the portion of the costs theretofore paid by Landlord is less than the Tenant
Improvement Allowance, Landlord shall reimburse Tenant for its pro-rata costs
expended pursuant to this Section 7 by Tenant up to the amount by which the
Tenant Improvement Allowance exceeds the portion of such cost theretofore paid
by Landlord,
D-7
<PAGE>
with any remaining balance shall be applied against Base Rent; provided,
however, that no such reimbursement shall be made to Tenant after the second
(2nd) anniversary of the Commencement Date. Except as expressly provided
herein, Landlord shall have no further obligation to disburse any additional
monies to Tenant, with respect to the Tenant Improvement Allowance, the
Improvements or the reimbursement under this Section 7.2.
7.3 The Tenant Improvement Allowance shall be only for the following
items and costs:
(a) Tenant's Plans and Specifications. The costs incurred by Tenant in
the preparation of the Design Development Drawings, MEP Drawings, Construction
Drawings and Final Plans for the Premises upon presentation to Landlord of (i)
the Final Plans executed by Tenant as set forth in Section 4.1 above, (ii)
copy(ies) of the invoice or invoices from Architect for the Final Plans, and
(iii) lien wavers executed by Architect and Engineer. Subject to Section 7.2
hereof, a reimbursement request submitted in accordance with this subsection
(a) shall be paid to Tenant within thirty (30) days after receipt of the
reimbursement request by Landlord. Any payment made by Landlord to Tenant,
Tenant's Architect, Engineer or General Contractor in connection with the
improvement of the Premises, whether prior to or subsequent to the date
hereof, shall be considered part of the Tenant Improvement Allowance.
(b) Licensing & Permit Fees. The payment of plan check, permit and
license fees relating to construction of the Improvements.
(c) Cost of Improvements, including Construction Related Expenses. The
cost of construction of the Improvements, including, without limitations,
signage, cabling, construction of a roof deck, testing and inspection costs,
parking charges and trash removal costs, project and construction management
fees, real property improvements, materials, consulting fees and contractors'
costs and fees.
(d) American with Disabilities Act and Similar Acts. Any and all costs
(but not any costs of Landlord Work) incurred to comply with the provisions of
the ADA, Title 24 and other similar federal, state and local laws and
regulations, including, without limitation, any alterations required under the
ADA for the purposes of "public accommodations" (as that term is used in the
ADA), and alterations required under the ADA, Title 24 or such other similar
federal, state or local laws and regulations in any portion of the Premises
arising out of the Improvements, provided, however, that Landlord shall bear
the sole cost and expense of the ADA compliance work as may be required in the
restrooms of the Premises.
(e) Change Order Costs. The cost of any changes to the Final Plans or
the Improvements required by applicable law.
(f) Taxes & Fees. Sales and use taxes and Title 24 fees with respect to
the Improvements.
(h) Furniture, Fixtures, Equipment and Relocation Costs. Tenant shall be
permitted to use up to a maximum of Five Dollars ($5) per rentable square foot
of the Tenant Improvement Allowance for furniture, fixtures, equipment or
relocation costs, and such
D-8
<PAGE>
furniture, fixtures and equipment shall be deemed Landlord's property in
accordance with Section 8.3 of the Lease.
7.4. In connection with the design and installation of the Improvements,
Landlord shall receive reimbursement for Landlord's reasonable out-of-pocket
costs incurred in connection with Landlord's review of all of Tenant's plans
and specification in accordance with Section 3 of this Work Letter. Provided,
however, Tenant hereby acknowledges and agrees that Landlord's sole interest
in any review and supervision of the design and installation of the
Improvements is to protect the Building and Landlord's interest in the
Building. Accordingly, Tenant shall not rely upon Landlord's review and
supervision of the design and installation of the Improvements for any
purpose, and Landlord shall incur no liability of any kind by reason of the
granting of such approvals.
SECTION 8. TENANT'S INDEMNITY.
8.1. Tenant shall indemnify, defend and hold Landlord harmless from and
against any and all claims, liens, expenses, costs, losses, fines, liabilities
and/or damages (including, without limitation, attorneys' fees and costs)
arising out of or in any way connected with the construction by Tenant of the
Improvements, except to the extent caused by the gross negligence or willful
misconduct of Landlord.
SECTION 9. FORCE MAJEURE. Any prevention, delay or stoppage of work to be
performed by Landlord or Tenant which is due to strikes, labor disputes,
inability to obtain labor, materials, equipment or reasonable substitutes
therefor, acts of God, governmental restrictions or regulations or controls,
judicial orders, enemy or hostile government actions, civil commotion, fire or
other casualty, or other causes beyond the reasonable control of the party
obligated to perform hereunder (except with respect to Tenant's or Landlord's
inability to satisfy of its monetary obligations hereunder), shall excuse
performance of the work by that party for a period equal to the duration of
that prevention, delay or stoppage. No such inability or delay by Landlord
shall constitute an actual or constructive eviction, in whole or in part, or
entitle Tenant to any abatement or diminution of Base Rent or Additional
Charges, or relieve Tenant from any of its obligations under the Lease, or
impose any liability upon Landlord or its agents by reason of inconvenience,
annoyance, interruption, injury or loss to or interference with Tenant's
business or use and occupancy or quiet enjoyment of the Premises or any loss
or damage occasioned thereby. Tenant hereby waives and releases any right to
terminate this Lease under Section 1932(1) of the California Civil Code or
under any similar law, statute or ordinance now or hereafter in effect.
D-9
<PAGE>
IN WITNESS WHEREOF, the undersigned have executed this EXHIBIT D
concurrently with the execution of the Lease.
LANDLORD: BLUE JEANS EQUITIES WEST,
a California general partnership
By: Plaza B LLC, a Delaware limited
liability company, as a General
Partner
By: ______________________
Gerson Bakar
Its: Member
TENANT: PLANETOUT INC.,
a Delaware corporation
By:
------------------------------------------
Its:
--------------------------------------
D-10
<PAGE>
SCHEDULE 1
(Schedule omitted)
Sch.-1-1
<PAGE>
SCHEDULE 2
BUILDING STANDARD WORK
(Schedule omitted)
Sch.-2-1
<PAGE>
EXHIBIT E
LEVI'S PLAZA
1355 SANSOME STREET BUILDING OFFICE LEASE
RULES AND REGULATIONS
1. Landlord shall have the right to control and operate the public portions
of the Building and the Public facilities, as well as facilities
furnished for the common use of the tenants, in such manner as it deems
best for the benefit of the tenants generally. No tenant shall invite to
the Premises, or permit the visit of, persons in such numbers or under
such conditions as to materially interfere with the use and enjoyment of
the entrances, corridors, elevators and facilities of the Building by
other tenants.
2. Landlord reserves the right to close and keep locked all entrance and
exit doors of the Building outside of Normal Business Hours as Landlord
may deem to be advisable for the protection of the property. All
tenants, their employees, or other persons entering or leaving the
Building at any time when it is so locked may be required to sign the
Building register when so doing, and the watchman in charge may refuse
to admit to the Building while it is so locked any person, without a
card key or a pass previously arranged, or other satisfactory
identification showing his right of access to the Building at such time.
Landlord assumes no responsibility and shall not be liable for any
damage resulting from any error in regard to any such pass or
identification, or from the admission of any unauthorized person to the
Building.
3. Landlord reserves the right to exclude or expel from the Building any
person who, in the judgment of Landlord, is intoxicated or under the
influence of liquor or drugs, or who shall in any manner do any act in
violation of any of the Rules and Regulations of the Building or in
violation of any law, order, ordinance, or governmental regulation.
4. The entries, corridors, stairways and elevators shall not be obstructed
by any tenant, or used for any other purpose than ingress or egress to
and from its respective offices. Lessee shall not bring into or keep
within the Building any animal or vehicle without written consent of the
Landlord.
5. Intentionally omitted.
6. Freight, furniture, business equipment, merchandise and bulky matter of
any description ordinarily shall be delivered to and removed from the
Premises only in the freight elevator and through the service entrances
and corridors, but special arrangements will be made for moving large
quantities or heavy items of furniture, equipment and supplies into or
out of the Building.
7. All entrance doors in the Premises shall be left locked when the
Premises are not in use.
E-1
<PAGE>
8. Lessee shall not attach or permit to be attached additional locks or
similar devices to any exterior door, transom or window of the premises;
change existing locks or the mechanism thereof; or make or permit to be
made any keys for any exterior door thereof other than those provided by
Landlord. (If more than two keys for one lock are desired Landlord will
provide them upon payment therefor by Lessee.)
9. Canvassing, soliciting or peddling in the Building is prohibited and
each tenant shall cooperate to prevent the same.
10. Except as provided in this Lease, no sign, placard, picture, name,
advertisement or notice, visible from the exterior of any Tenant's
premises shall be inscribed, painted, affixed or otherwise displayed by
any Tenant on any part of the Building without the prior written consent
of Landlord. If Landlord shall have given such consent at any time, such
consent shall be deemed to relate only to the particular sign, placard,
picture, name, advertisement or notice so consented to by Landlord and
shall not be construed as dispensing with the necessity of obtaining
specific written consent of Landlord with respect to each and every
other sign, placard, picture, name, advertisement or notice. Landlord
will adopt and furnish to Tenant general guidelines relating to signs on
the office floors. Tenant agrees to conform to such guidelines, but may
request approval of Landlord for modifications, which approval will not
be unreasonably withheld. All approved signs or lettering on doors shall
be printed, painted, affixed or inscribed at the expense of the Tenant
by a person approved by Landlord, which approval will not be
unreasonably withheld.
11. The directory of the Building will be provided for the display of the
name and location of Tenants, any affiliate or sublessee of any Tenant,
and a reasonable number of the principal officers and employees of such
persons, and Landlord reserves the right to exclude any other names
therefrom. Any additional name which Tenant shall desire to place upon
said directory must first be approved by Landlord, and, if so approved,
a charge will be made therefor.
12. The drinking fountains, lavatories, water closets and urinals shall not
be used for any purpose other than those for which they were installed.
13. No awnings or other projections over or around the windows or entrances
of the Demised Premises shall be installed by any tenant. No curtains,
blinds, shades or screens shall be attached to or hung in, or used in
connection with any window or door of the Premises without the prior
written consent of the Landlord. Tenant shall not make any changes which
will alter the Building's appearance from the outside of the Building
without prior written consent of the Landlord. No curtains, blinds,
shades or screens shall be attached to or hung in, or used in connection
with any window or door of the Premises without the prior written
consent of the Landlord. Tenant shall not make any changes which will
alter the Building's appearance from the outside of the Building without
prior written consent of the Landlord.
14. Rooms or other areas used in common by tenants shall be subject to such
regulations as are posted therein.
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<PAGE>
15. Landlord is not responsible to any tenant for the non-observance or
violation of the Rules and Regulations by any other tenant.
16. Landlord reserves the right by written notice to Tenant, to rescind,
alter or waive any rule or regulation at any time prescribed for the
Building when, in Landlord's judgment, it is necessary, desirable or
proper for the best interest of the Building and its tenants. Waiver by
Landlord shall not be construed as a waiver of such Rules and
Regulations in favor of any other Tenant or Tenants, and shall not
prevent Landlord from thereafter enforcing any such Rules and
Regulations against any or all of the Tenants of the Building.
Notwithstanding the foregoing, Landlord shall endeavor to enforce the
Rules and Regulations in a reasonable and non-discriminatory manner.
17. Tenant shall not exhibit, sell or offer for sale on the Premises or in
the Building any article or thing except those articles and things
essentially connected with the stated use of the Premises by Tenant
without the advance consent of the Landlord. Nor shall any tenant carry
on, or permit or allow any employee or other person to carry on, the
business of stenography, typewriting or any similar business in or from
a demised 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.
18. Tenant shall never use any picture or likeness of the Building in any
circulars, notices, advertisements or correspondence without the
Landlord's consent, which shall not be unreasonably withheld, except in
sublease marketing materials.
19. Tenant shall cooperate reasonably with the Landlord to assure the
effective operation of the Building's air conditioning system. If Tenant
shall so use the Premises that noxious or objectionable fumes, vapors
and odors exist beyond the extent to which they are discharged or
eliminated by means of the flues and other devices contemplated by the
various plans, specifications and leases, then Tenant shall provide
proper ventilating equipment for the discharge of such excess fumes,
vapors and odors so that they shall not enter into the air conditioning
system or be discharged into other vents or flues of the Building or
annoy any of the tenants of the building or adjacent properties. The
design, location and installation of such equipment shall be subject to
Landlord's prior written approval, which shall not be unreasonably
withheld.
20. The Premises shall not be used for the storage of merchandise held for
sale to the general public or for lodging, excluding Tenant's direct
mail merchandise. No cooking shall be done or permitted by Tenant on the
Premises except in that area or those areas in which cooking and food
preparation facilities are installed and operated under, pursuant to,
and in accordance with, all applicable Federal, State and City laws,
codes, ordinances, rules and regulations. The operation of any food
service facility by Tenant or a concessionaire of Tenant shall be
restricted to use by employees of the Tenant and any Affiliate thereof
and their invited guests and shall not be available for use by the
general public. Use by Tenant of Underwriters'
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<PAGE>
Laboratory approved equipment for microwaving and brewing coffee, tea,
hot chocolate and similar beverages shall be permitted in areas other
than those specifically designated for food service, provided that such
use is in accordance with all applicable Federal, State and City laws,
codes, ordinances, rules and regulations.
21. All loading and unloading of merchandise, supplies, materials, garbage
and refuse shall be made only through such entryways and elevators and
at such times as the Landlord shall reasonably designate. In its use of
the loading areas in the basement, Tenant shall not obstruct or permit
the obstruction of said loading area and at no time shall park or allow
its officers, agents or employees to park vehicles therein except for
loading or unloading.
22. There shall not be used or kept anywhere in the Building by any tenant
or persons or firms visiting or transacting business with a tenant any
hand trucks, or other vehicles of any kind except those equipped with
rubber tires and side guards.
23. Tenant shall not contract for any work or service which might involve
the employment of labor incompatible with the Building employees or
employees of contractors doing work or performing services by or on
behalf of the Landlord.
24. No Tenant shall employ any person or persons other than the janitor or
Landlord for the purpose of cleaning the premises, unless otherwise
consented to by Landlord in writing, which consent Landlord shall not
unreasonably withhold. Except with the written consent of Landlord, no
person or persons other than those approved by Landlord shall be
permitted to enter the Building for the purpose of cleaning the same. No
tenant shall cause any unnecessary labor by reason of such tenant's
carelessness or indifference in the preservation of good order and
cleanliness. Landlord shall in no way be responsible to any tenant for
any loss of property on the premises, or for any damage done to the
furniture or other effects of any tenant by the janitor or any other
employee or any other person, except when such loss or damage is caused
by the negligence or willful act of Landlord, its agents or employee.
Janitor service shall include the services described on the Janitorial
Specifications attached hereto as Schedule E-1, which services may be
changed by Landlord from time to time in its sole discretion provided
that at all times Landlord must meet its obligations under Section 17.1
hereof. Janitor service will not be furnished on nights when rooms are
occupied after 9:30 p.m. unless, by agreement in writing, service is
extended to a later hour for specifically designated rooms.
25. No tenant shall install any radio or television antenna, loud-speaker,
or other device on the roof or exterior walls of the Building, without
the prior written consent of Landlord.
26. 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.
E-4
<PAGE>
SCHEDULE E-1
JANITORIAL SPECIFICATIONS
(Schedule omitted)
E-1
<PAGE>
EXHIBIT F
FIXTURE, FURNITURE & EQUIPMENT
(List of property follows)
F-1
<PAGE>
EXHIBIT G
FLOOR PLAN OF ADDITIONAL SPACE
(Floor plan of additional space follows)
G-1
<PAGE>
SCHEDULE 5.1
COST OF EARTHQUAKE INSURANCE
(Schedule omitted)
G-1
<PAGE>
SCHEDULE 11.2
ENVIRONMENTAL REPORTS AND MEMORANDUM
(Schedule omitted)
G-1