California-San Francisco-201 Mission Street Office Lease Agreement - EOP-Mission Street LLC and Quokka Sports Inc.
201 MISSION STREET
SAN FRANCISCO, CALIFORNIA
OFFICE LEASE AGREEMENT
BETWEEN
EOP-MISSION STREET, L.L.C., A DELAWARE LIMITED LIABILITY COMPANY,
AS BENEFICIARY OF LAND TRUST
DATED OCTOBER 23, 1996 AND KNOWN AS SHELI Z. ROSENBERG TRUST NO. 201
("LANDLORD")
AND
QUOKKA SPORTS, INC., A DELAWARE CORPORATION
("TENANT")
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TABLE OF CONTENTS
<TABLE>
<S> <C>
I. BASIC LEASE INFORMATION....................................................1
II. LEASE GRANT...............................................................4
III. POSSESSION...............................................................4
IV. RENT......................................................................4
V. COMPLIANCE WITH LAWS; USE..................................................9
VI. SECURITY DEPOSIT..........................................................9
VII. SERVICES TO BE FURNISHED BY LANDLORD.....................................9
VIII. LEASEHOLD IMPROVEMENTS.................................................10
IX. REPAIRS AND ALTERATIONS..................................................10
X. USE OF ELECTRICAL SERVICES BY TENANT......................................11
XI. ENTRY BY LANDLORD........................................................12
XII. ASSIGNMENT AND SUBLETTING...............................................12
XIII. LIENS..................................................................13
XIV. INDEMNITY AND WAIVER OF CLAIMS..........................................14
XV. INSURANCE................................................................14
XVI. SUBROGATION.............................................................15
XVII. CASUALTY DAMAGE........................................................15
XVIII. CONDEMNATION..........................................................16
XIX. EVENTS OF DEFAULT.......................................................16
XX. REMEDIES.................................................................17
XXI. LIMITATION OF LIABILITY.................................................18
XXII. NO WAIVER..............................................................18
XXIII. QUIET ENJOYMENT......................................................18
XXIV. RELOCATION.............................................................19
XXV. HOLDING OVER............................................................19
XXVI. SUBORDINATION TO MORTGAGES; ESTOPPEL CERTIFICATE.......................19
XXVII. ATTORNEYS'FEES........................................................20
XXVIII. NOTICE...............................................................20
XXIX.EXCEPTED RIGHTS.........................................................20
XXX. SURRENDER OF PREMISES...................................................20
XXXI. MISCELLANEOUS..........................................................21
XXXII.ENTIRE AGREEMENT.......................................................22
</TABLE>
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OFFICE LEASE AGREEMENT
THIS OFFICE LEASE AGREEMENT (the "Lease") is made and entered into as of
the 27th day of May, 1999, by and between EOP-MISSION STREET, L.L.C., A
DELAWARE LIMITED LIABILITY COMPANY, AS BENEFICIARY OF LAND TRUST DATED OCTOBER
23, 1996 AND KNOWN AS SHELI Z. ROSENBERG TRUST NO. 201 ("Landlord") and QUOKKA
SPORTS, INC., A DELAWARE CORPORATION ("Tenant").
I. BASIC LEASE INFORMATION.
A. "Building" shall mean the building located at 201 Mission Street,
San Francisco, California, commonly known as 201 Mission Street.
B. "Rentable Square Footage of the Building" is deemed to be 483,289
square feet.
C. "Premises A", "Premises B" and "Premises C" shall mean the areas
shown on EXHIBITS A-1, A-2 and A-3, respectively, to this Lease.
Premises A are located on floor 19 and known as suite number
1900. Premises B are located on floor 18 and known as suite
number 1800. Premises C are located on floor 17 and known as
suite number 1700. Individually and collectively, Premises A,
Premises B and Premises C shall sometimes be referred to as the
"Premises". The "Rentable Square Footage of Premises A" is deemed
to be 15,215 square feet. The "Rentable Square Footage of
Premises B" is deemed to be 15,614 square feet. The "Rentable
Square Footage of Premises C" is deemed to be 15,631 square feet.
Collectively, the "Rentable Square Footage of the Premises" is
deemed to be 46,460 square feet. If the Premises include one or
more floors in their entirety, all corridors and restroom
facilities located on such full floor(s) shall be considered part
of the Premises. Landlord and Tenant stipulate and agree that the
Rentable Square Footage of the Building and the Rentable Square
Footage of the Premises are correct and shall not be remeasured.
D. "Base Rent":
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ANNUAL RATE MONTHLY
PERIOD PER SQUARE FOOT BASE RENT
------ --------------- ---------
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JUNE 1, 1999 - SEPTEMBER 30, 1999 $40.00 $102,763.33
OCTOBER 1, 1999 - OCTOBER 31, 1999 $40.00 $130,551.68
NOVEMBER 1, 1999 - FEBRUARY 28, 2002 $40.00 $154,866.67
</TABLE>
Notwithstanding the foregoing to the contrary, as long as Tenant
is not in default, Tenant shall be entitled to an abatement of
Base Rent with respect to Premises B in the amount of $52,046.67
per month for the period commencing June 1, 1999 through the date
("Premises B Completion Date") which is the earlier to occur of
(a) August 15, 1999, and (b) the date the Initial Alterations for
Premises B are Substantially Complete, as hereinafter defined
(the "Premises B Base Rent Abatement Period"). Notwithstanding
the foregoing to the contrary, as long as Tenant is not in
default, Tenant shall be entitled to an abatement of Base Rent
with respect to Premises A in the amount of $50,716.67 per month
for the period commencing on the day immediately after the
Premises B Completion Date and continuing through the earlier to
occur of (i) the date which is 75 days after the Premises B
Completion Date, and (ii) the date the Initial Alterations for
Premises A are Substantially Complete (the "Premises A Base Rent
Abatement Period"). For purposes of this Lease, the Initial
Alterations for Premises A and Premises B, as the case may be,
shall be "Substantially Complete" on the date that all of
Tenant's work has been performed in Premises A or Premises B, as
the case may be, other than any details of construction,
mechanical adjustment or any other similar matter, the
noncompletion of which does not materially interfere with
Tenant's use of Premises A or Premises B, as the case may be.
During the Premises A Base Rent Abatement Period and the Premises
B Base Rent Abatement Period, only Base Rent shall be abated, and
all Additional Rent and other costs and charges
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specified in this Lease shall remain as due and payable pursuant
to the provisions of this Lease.
E. "Tenant's Pro Rata Share": (i) 6.3790% for the period commencing
on the Premises A Commencement Date and the Premises B
Commencement Date (assuming that the Premises A Commencement Date
and the Premises B Commencement Date are the same day, i.e.,
3.1482% with respect to Premises A and 3.2308% with respect to
Premises B) and ending on the day immediately preceding the
Premises C Commencement Date; and (ii) 9.6133% for the period
commencing on the Premises C Commencement Date and ending on the
Termination Date.
F. "Base Year" for Taxes: 1999; "Base Year" for Expenses: 1999.
G. "Term": With respect to Premises A, a period of 33 months, with
respect to Premises B, a period of 33 months; and with respect to
Premises C, a period of 28 months and 16 days. The "Premises A
Term" shall commence on June 1, 1999 ("Premises A Commencement
Date"). The "Premises B Term" shall commence on June 1, 1999
("Premises B Commencement Date"). The "Premises C Term" shall
commence on the date ("Premises C Commencement Date") which is 75
days after the day Landlord delivers possession of Premises C to
Tenant (75 days after the day Landlord delivers possession of
Premises C to Tenant is currently estimated to be October 15,
1999, the "Premises C Target Commencement Date"). Unless
terminated early in accordance with this Lease, the Premises A
Term, the Premises B Term and the Premises C Term shall end on
February 28, 2002 (the "Termination Date"). Promptly after the
determination of the Premises C Commencement Date, Landlord and
Tenant shall enter into a commencement letter agreement in the
form attached as EXHIBIT C. Landlord and Tenant acknowledge that
the schedule of Base Rent described in Section I.D. above is
based on the assumption that the Lease Term with respect to
Premises A, Premises B and Premises C will commence on the
Premises A Commencement Date, the Premises B Commencement Date,
and the Premises C Target Commencement Date, respectively. If the
Lease Term with respect to Premises A and Premises B does not
commence on the Premises A Commencement Date and the Premises B
Commencement Date, respectively, the beginning and ending dates
set forth in the above schedule with respect to the payment of
any installment(s) of Base Rent shall be appropriately adjusted
on a per diem basis and set forth in the Commencement Letter to
be prepared by Landlord. If the Lease Term with respect to
Premises C does not commence on the Premises C Target
Commencement Date, the beginning date set forth in the above
schedule with respect to the payment of any installment(s) of
Base Rent for Premises C shall be appropriately adjusted on a per
diem basis and set forth in the Commencement Letter to be
prepared by Landlord, but the Termination Date of the Lease shall
not be adjusted.
Notwithstanding the foregoing, if the Premises A Commencement
Date and the Premises B Commencement Date do not occur by August
1, 1999 (the "Outside Completion Date"), Tenant, as its sole
remedy, may terminate this Lease by giving Landlord written
notice of termination on or before the date which is 5 Business
Days after the Outside Completion Date. In such event, this Lease
shall be deemed null and void and of no further force and effect
and Landlord shall promptly refund any Prepaid Rental and
Security Deposit previously advanced by Tenant under this Lease
and, so long as Tenant has not previously defaulted under any of
its obligations under the Work Letter, the parties hereto shall
have no further responsibilities or obligations to each other
with respect to this Lease. Landlord and Tenant acknowledge and
agree that: (i) the determination of the Premises A Commencement
Date and the Premises B Commencement Date shall be postponed by
the number of days the Premises A Commencement Date or the
Premises B Commencement Date are delayed due to events of Force
Majeure. Notwithstanding anything herein to the contrary, if
Landlord determines that it will be unable to cause the Premises
A Commencement Date or the Premises B Commencement Date to occur
by the Outside Completion Date, Landlord shall have the right to
provide Tenant with written notice (the "Outside Extension
Notice") of such inability, which Outside
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Extension Notice shall set forth the date on which Landlord
reasonably believes that the Premises A Commencement Date and the
Premises B Commencement Date will occur. Upon receipt of the
Outside Extension Notice, Tenant shall have the right to
terminate this Lease by providing written notice of termination
to Landlord within 5 Business Days after the date of the Outside
Extension Notice. In the event that Tenant does not terminate
this Lease within such 5 Business Day period, the Outside
Completion Date shall automatically be amended to be the date set
forth in Landlord's Outside Extension Notice.
H. Tenant allowance(s): Allowance of $10.00 per rentable square foot
of the Premises to be applied toward the cost of Initial
Alterations (as defined in EXHIBIT D) as more fully described in
EXHIBIT D.
I. "Security Deposit": $700,000.00 (as more fully defined in Section
VI).
J. "Guarantor(s)": None.
K. "Broker(s)": Triton Commercial, Inc.
L. "Permitted Use": general office use.
M. "Notice Addresses":
Tenant:
Notices shall be sent to Tenant at the following address:
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525 Brannan Street WITH A COPY TO:
Ground Floor Cooley Godward, LLP
San Francisco, California 94107 One Maritime Plaza
Phone #: (415) 908-3800 San Francisco, California 94111
Fax #: (415) 908-1841 Attention: Paul Churchill, Esq.
Attention: Paul Startz, Esq.
LANDLORD: WITH A COPY TO:
EOP-MISSION STREET, L.L.C., A DELAWARE Equity Office Properties Trust
LIMITED LIABILITY COMPANY, AS BENEFICIARY Two North Riverside Plaza
OF LAND TRUST DATED OCTOBER 23, 1996 AND Suite 2200
KNOWN AS SHELI Z. ROSENBERG TRUST NO. 201 Chicago, Illinois 60606
c/o Equity Office Properties Trust Attention: Regional Counsel-Pacific
201 Mission Street, Suite 250 Region
San Francisco, California 94105
Attention: Building Manager
</TABLE>
Rent (defined in Section IV.A) is payable to the order of EQUITY
OFFICE PROPERTIES at the following address: EOP OPERATING LIMITED
PARTNERSHIP, DBA 201 MISSION, DEPT. #8815, LOS ANGELES,
CALIFORNIA 90084-8815.
N. "Business Day(s)" are 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, by written notice to Tenant, designate additional
Holidays, provided that the additional Holidays are commonly
recognized by other office buildings in the area where the
Building is located.
O. "Landlord Work" means the work, if any, that Landlord is
obligated to perform in the Premises pursuant to a separate work
letter agreement (the "Work Letter"), if any, attached as EXHIBIT
D. If a Work Letter is not attached to this Lease or if an
attached Work Letter does not require Landlord to perform any
work, the occurrence of the Commencement Date shall not be
conditioned upon the performance of work by Landlord and,
accordingly, Section III.A. shall not be applicable to the
determination of the Commencement Date.
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P. "Law(s)" means all applicable statutes, codes, ordinances,
orders, rules and regulations of any municipal or governmental
entity.
Q. "Normal Business Hours" for the Building are 8:00 A.M. to 6:00
P.M. on Business Days and 9:00 A.M. to 2:00 P.M. on Saturdays.
R. "Property" means the Building and the parcel(s) of land on which
it is located and, at Landlord's discretion, the Building garage
and other improvements serving the Building, if any, and the
parcel(s) of land on which they are located.
II. LEASE GRANT.
Landlord leases the Premises to Tenant and Tenant leases the Premises
from Landlord, together with the right in common with others to use any other
portions of the Property that are designated by Landlord for the common use of
tenants and others, such as sidewalks, unreserved parking areas, common
corridors, elevator foyers, restrooms, vending areas and lobby areas (the
"Common Areas").
III. POSSESSION.
A. Intentionally Omitted.
B. Subject to Landlord's obligation, if any, to perform Landlord
Work and Landlord's obligations under Section IX.B., the Premises
are accepted by Tenant in "as is" condition and configuration. By
taking possession of the Premises, Tenant agrees that the
Premises are in good order and satisfactory condition, and that
there are no representations or warranties by Landlord regarding
the condition of the Premises or the Building except as may
otherwise be set forth in this Lease. If Landlord is delayed
delivering possession of Premises A, Premises B, Premises C or
any other space due to the holdover or unlawful possession of
such space by any party, and such delay continues for 30 days
after the date Landlord is required to deliver possession
hereunder, Landlord shall proceed with due diligence and take all
legal action reasonably necessary to recapture possession of the
space from such existing tenant and/or regain legal right to
possession thereof. The Premises A Commencement Date, the
Premises B Commencement Date and the Premises C Commencement Date
shall be postponed until the date Landlord delivers possession of
Premises A, Premises B and Premises C, respectively, to Tenant
free from occupancy by any party, and the Termination Date shall
be postponed by an equal number of days.
C. If Tenant takes possession of Premises A, Premises B or Premises
C before the Premises A Commencement Date, the Premises B
Commencement Date or the Premises C Commencement Date,
respectively, such possession shall be subject to the terms and
conditions of this Lease and Tenant shall pay Rent (defined in
Section IV.A.) to Landlord for each day of possession before the
Premises A Commencement Date with respect to Premises A, the
Premises B Commencement Date with respect to Premises B and the
Premises C Commencement Date with respect to Premises C. However,
except for the cost of services requested by Tenant (e.g. freight
elevator usage), Tenant shall not be required to pay Rent for any
days of possession before the Premises A Commencement Date, the
Premises B Commencement Date or the Premises C Commencement Date
during which Tenant, with the approval of Landlord, is in
possession of Premises A, Premises B or Premises C, respectively,
for the sole purpose of performing improvements or installing
furniture, equipment or other personal property.
IV. RENT.
A. Payments. As consideration for this Lease, Tenant shall pay
Landlord, without any setoff or deduction, the total amount of
Base Rent and Additional Rent due for the Term. "Additional Rent"
means all sums (exclusive of Base Rent) that Tenant is required
to pay Landlord. Additional Rent and Base Rent are sometimes
collectively referred to as "Rent". Tenant shall pay and be
liable for all rental, sales and use taxes (but excluding income
taxes), if any, imposed upon or measured by Rent under applicable
Law. Base Rent and recurring monthly
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charges of Additional Rent shall be due and payable in advance on
the first day of each calendar month without notice or demand,
provided that the installment of Base Rent for the first full
calendar month of the Term shall be payable upon the execution of
this Lease by Tenant. All other items of Rent shall be due and
payable by Tenant on or before 30 days after billing by Landlord.
All payments of Rent shall be by good and sufficient check or by
other means (such as automatic debit or electronic transfer)
acceptable to Landlord. If Tenant fails to pay any item or
installment of Rent when due, Tenant shall pay Landlord an
administration fee equal to 5% of the past due Rent, provided
that Tenant shall be entitled to a grace period of 5 days for the
first 2 late payments of Rent in a given calendar year. If the
Term commences on a day other than the first day of a calendar
month or terminates on a day other than the last day of a
calendar month, the monthly Base Rent and Tenant's Pro Rata Share
of any Tax Excess (defined in Section IV.B.) or Expense Excess
(defined in Section IV.B.) for the month shall be prorated based
on the number of days in such calendar month. Landlord's
acceptance of less than the correct amount of Rent shall be
considered a payment on account of the earliest Rent due. No
endorsement or statement on a check or letter accompanying a
check or payment shall be considered an accord and satisfaction,
and either party may accept the check or payment without
prejudice to that party's right to recover the balance or pursue
other available remedies. Tenant's covenant to pay Rent is
independent of every other covenant in this Lease.
B. Expense Excess and Tax Excess. Tenant shall pay Tenant's Pro Rata
Share of the amount, if any, by which Expenses (defined in
Section IV.C.) for each calendar year during the Term exceed
Expenses for the Base Year (the "Expense Excess") and also the
amount, if any, by which Taxes (defined in Section IV.D.) for
each calendar year during the Term exceed Taxes for the Base Year
(the "Tax Excess"). If Expenses and/or Taxes in any calendar year
decrease below the amount of Expenses and/or Taxes for the Base
Year, Tenant's Pro Rata Share of Expenses and/or Taxes, as the
case may be, for that calendar year shall be $0. Landlord shall
provide Tenant with a good faith estimate of the Expense Excess
and of the Tax Excess for each calendar year during the Term. On
or before the first day of each month, Tenant shall pay to
Landlord a monthly installment equal to one-twelfth of Tenant's
Pro Rata Share of Landlord's estimate of the Expense Excess and
one-twelfth of Tenant's Pro Rata Share of Landlord's estimate of
the Tax Excess. If Landlord determines that its good faith
estimate of the Expense Excess or of the Tax Excess was incorrect
by a material amount, Landlord may provide Tenant with a revised
estimate. After its receipt of the revised estimate, Tenant's
monthly payments shall be based upon the revised estimate. If
Landlord does not provide Tenant with an estimate of the Expense
Excess or of the Tax Excess by January 1 of a calendar year,
Tenant shall continue to pay monthly installments based on the
previous year's estimate(s) until Landlord provides Tenant with
the new estimate. Upon delivery of the new estimate, an
adjustment shall be made for any month for which Tenant paid
monthly installments based on the previous year's estimate(s).
Tenant shall pay Landlord the amount of any underpayment within
30 days after receipt of the new estimate. Any overpayment shall
be refunded to Tenant within 30 days or credited against the next
due future installment(s) of Additional Rent.
As soon as is practical following the end of each calendar year,
Landlord shall furnish Tenant with a statement of the actual
Expenses and Expense Excess and the actual Taxes and Tax Excess
for the prior calendar year. If the estimated Expense Excess
and/or estimated Tax Excess for the prior calendar year is more
than the actual Expense Excess and/or actual Tax Excess, as the
case may be, for the prior calendar year, Landlord shall apply
any overpayment by Tenant against Additional Rent due or next
becoming due, provided if the Term expires before the
determination of the overpayment, Landlord shall refund any
overpayment to Tenant after first deducting the amount of Rent
due. If the estimated Expense Excess and/or estimated Tax Excess
for the prior calendar year is less than the actual Expense
Excess and/or actual Tax Excess, as the case may be, for such
prior year, Tenant shall pay Landlord, within 30 days after its
receipt of the statement of Expenses and/or Taxes, any
underpayment for the prior calendar year.
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C. Expenses Defined. "Expenses" means all costs and expenses
incurred in each calendar year in connection with operating,
maintaining, repairing, and managing the Building and the
Property, including, but not limited to:
1. Labor costs, including, wages, salaries, social security
and employment taxes, medical and other types of
insurance, uniforms, training, and retirement and pension
plans.
2. Management fees, the cost of equipping and maintaining a
management office, accounting and bookkeeping services,
legal fees not attributable to leasing or collection
activity, and other administrative costs. Landlord, by
itself or through an affiliate, shall have the right to
directly perform or provide any services under this Lease
(including management services), provided that the cost of
any such services shall not exceed the cost that would
have been incurred had Landlord entered into an
arms-length contract for such services with an
unaffiliated entity of comparable skill and experience.
3. The cost of services, including amounts paid to service
providers and the rental and purchase cost of parts,
supplies, tools and equipment.
4. Premiums and deductibles paid by Landlord for insurance,
including workers compensation, fire and extended
coverage, earthquake, general liability, rental loss,
elevator, boiler and other insurance customarily carried
from time to time by owners of comparable office
buildings.
5. Electrical Costs (defined below) and charges for water,
gas, steam and sewer, but excluding those charges for
which Landlord is reimbursed by tenants. "Electrical
Costs" means: (a) charges paid by Landlord for
electricity; (b) costs incurred in connection with an
energy management program for the Property; and (c) if and
to the extent permitted by Law, a fee for the services
provided by Landlord in connection with the selection of
utility companies and the negotiation and administration
of contracts for electricity, provided that such fee shall
not exceed 50% of any savings obtained by Landlord.
Notwithstanding any of the foregoing to the contrary,
Tenant shall in no event pay more for electricity during
the Term of the Lease as a result of Landlord's
negotiation and administration of contracts for
electricity and the payment of any fee charged by Landlord
in connection therewith than Tenant would have otherwise
paid if Landlord had not negotiated such contracts and
charged such fees. Electrical Costs shall be adjusted as
follows: (i) amounts received by Landlord as reimbursement
for above standard electrical consumption shall be
deducted from Electrical Costs; (ii) the cost of
electricity incurred to provide overtime HVAC to specific
tenants (as reasonably estimated by Landlord) shall be
deducted from Electrical Costs; and (iii) if Tenant is
billed directly for the cost of building standard
electricity to the Premises as a separate charge in
addition to Base Rent, the cost of electricity to
individual tenant spaces in the Building shall be deducted
from Electrical Costs.
6. The amortized cost of capital improvements (as
distinguished from replacement parts or components
installed in the ordinary course of business) made to the
Property which are: (a) performed primarily to reduce
operating expense costs or otherwise improve the operating
efficiency of the Property; or (b) required to comply with
any Laws that are enacted, or first interpreted to apply
to the Property, after the date of this Lease. The cost of
capital improvements shall be amortized by Landlord over
the lesser of the Payback Period (defined below) or 5
years. The amortized cost of capital improvements may, at
Landlord's option, include actual or imputed interest at
the rate that Landlord would reasonably be required to pay
to finance the cost of the capital improvement. "Payback
Period" means the reasonably estimated period of time that
it takes for the cost savings resulting from a capital
improvement to equal the total cost of the capital
improvement.
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If Landlord incurs Expenses for the Property together with one or
more other buildings or properties, whether pursuant to a
reciprocal easement agreement, common area agreement or
otherwise, the shared costs and expenses shall be equitably
prorated and apportioned between the Property and the other
buildings or properties. Expenses shall not include:
a. The cost of capital improvements (except as set forth
above); depreciation; interest (except as provided above
for the amortization of capital improvements);
b. Principal payments of mortgage and other non-operating
debts of Landlord;
c. The cost of repairs or other work to the extent Landlord
is reimbursed by insurance or condemnation proceeds;
d. Costs in connection with leasing space in the Building,
including attorneys' fees, brokerage commissions; lease
concessions, including rental abatements and construction
allowances, granted to specific tenants;
e. Costs incurred in connection with the sale, financing or
refinancing of the Building;
f. Fines, interest and penalties incurred due to the late
payment of Taxes (defined in Section IV.D) or Expenses;
g. Organizational expenses associated with the creation and
operation of the entity which constitutes Landlord;
h. Any penalties or damages that Landlord pays to Tenant
under this Lease or to other tenants in the Building under
their respective leases;
i. Ground lease rental;
j. Advertising and promotional expenditures;
k. All items (including repairs) and services for which
Tenant or other tenants pay directly to third parties or
for which Tenant or other tenants reimburse (or are
required to reimburse) Landlord (other than through
Expenses);
l. Any costs, fines or penalties incurred due to violations
by Landlord of any law, order, rule or regulations of any
governmental authority which was in effect (and as
enforced) as of the Lease Commencement Date except where
such costs, fines or penalties are incurred by Landlord
for violations of any such law, order, rule or regulation
that is ultimately determined to be invalid, or
inapplicable;
m. Costs arising out of the admitted or adjudicated
negligence or willful misconduct of Landlord or any
Landlord Related Parties;
n. Any cost or expense related to removal, cleaning,
abatement or remediation of "hazardous materials" in or
about the Building, Common Area or Property, including,
without limitation, hazardous substances in the ground
water or soil, except to the extent such removal,
cleaning, abatement or remediation is related to the
general repair and maintenance of the Building, Common
Area or Property;
o. The cost or expense of any services or benefits provided
to other tenants in the Building and not provided or
available to Tenant;
p. Overhead and profit increment paid to subsidiaries or
other affiliates of Landlord for services (including
management services and the fees paid in connection
therewith) on or to the Property, Building and\or Premises
to the
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extent only that the costs of such services exceed the
competitive cost for such services rendered by persons or
entities of similar skill, competence and experience.
q. Repairs or other work occasioned by (i) fire, windstorm,
or other casualty of the type which Landlord has insured
(to the extent that Landlord has received insurance
proceeds and provided that the amount of any deductible
paid by Landlord shall be included in Expenses), or (ii)
the exercise of the right of eminent domain (to the extent
that such repairs or other work are covered by the
proceeds of the award, if any, received by Landlord);
r. all costs of purchasing or leasing major sculptures,
paintings or other major works or objects of art (as
opposed to decorations purchased or leased by Landlord for
display in the Common Areas of the Building); and
s. the cost of complying with any laws in effect (and as
enforced) on the Commencement Date, provided that if any
portion of the Building that was in compliance with all
applicable laws on the Commencement Date becomes out of
compliance due to normal wear and tear, the cost of
bringing such portion of the Building into compliance
shall be included in Expenses unless otherwise excluded
pursuant to the terms hereof;
If the Building is not at least 95% occupied during any calendar
year or if Landlord is not supplying services to at least 95% of
the total Rentable Square Footage of the Building at any time
during a calendar year, Expenses shall be determined as if the
Building had been 95% occupied and Landlord had been supplying
services to 95% of the Rentable Square Footage of the Building
during that calendar year. If Tenant pays for its Pro Rata Share
of Expenses based on increases over a "Base Year" and Expenses
for a calendar year are determined as provided in the prior
sentence, Expenses for the Base Year and comparison years shall
also be determined as if the Building had been 95% occupied and
Landlord had been supplying services to 95% of the Rentable
Square Footage of the Building. The extrapolation of Expenses
under this Section shall be performed by appropriately adjusting
the cost of those components of Expenses that are impacted by
changes in the occupancy of the Building.
D. Taxes Defined. "Taxes" shall mean: (1) all real estate taxes and
other assessments on the Building and/or Property, including, but
not limited to, assessments for special improvement districts and
building improvement districts, taxes and assessments levied in
substitution or supplementation in whole or in part of any such
taxes and assessments and the Property's share of any real estate
taxes and assessments under any reciprocal easement agreement,
common area agreement or similar agreement as to the Property;
(2) all personal property taxes for property that is owned by
Landlord to the extent used in connection with the operation,
maintenance and repair of the Property; and (3) all reasonable
costs and fees incurred in connection with seeking reductions in
any tax liabilities described in (1) and (2), including, without
limitation, any costs incurred by Landlord for compliance, review
and appeal of tax liabilities. Without limitation, Taxes shall
not include any income, capital levy, franchise, capital stock,
gift, estate or inheritance tax. If an assessment is payable in
installments, Taxes for the year shall include the amount of the
installment and any interest due and payable during that year.
For all other real estate taxes, Taxes for that year shall, at
Landlord's election, include either the amount accrued, assessed
or otherwise imposed for the year or the amount due and payable
for that year, provided that Landlord's election shall be applied
consistently throughout the Term. If a change in Taxes is
obtained for any year of the Term during which Tenant paid
Tenant's Pro Rata Share of any Tax Excess, then Taxes for that
year will be retroactively adjusted and Landlord shall provide
Tenant with a credit (or refund if such change in Taxes is
obtained after the termination of the Lease with respect to any
year of the Term during which the Tenant paid Tenant's Pro Rata
Share of any Tax Excess), if any, based on the adjustment.
Likewise, if a change is obtained for Taxes for the Base Year,
Taxes for the Base Year shall be restated and the Tax Excess for
all subsequent years shall be recomputed. Tenant shall pay
Landlord the amount of Tenant's
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Pro Rata Share of any such increase in the Tax Excess within 30
days after Tenant's receipt of a statement from Landlord.
E. Audit Rights. Tenant may, within 90 days after receiving
Landlord's statement of Expenses, give Landlord written notice
("Review Notice") that Tenant intends to review Landlord's
records of the Expenses for that calendar year. Within a
reasonable time after receipt of the Review Notice, Landlord
shall make all pertinent records available for inspection that
are reasonably necessary for Tenant to conduct its review. If any
records are maintained at a location other than the office of the
Building, Tenant may either inspect the records at such other
location or pay for the reasonable cost of copying and shipping
the records. If Tenant retains an agent to review Landlord's
records, the agent must be with a licensed CPA firm. Tenant shall
be solely responsible for all costs, expenses and fees incurred
for the audit. Within 60 days after the records are made
available to Tenant, Tenant shall have the right to give Landlord
written notice (an "Objection Notice") stating in reasonable
detail any objection to Landlord's statement of Expenses for that
year. If Tenant fails to give Landlord an Objection Notice within
the 60 day period or fails to provide Landlord with a Review
Notice within the 90 day period described above, Tenant shall be
deemed to have approved Landlord's statement of Expenses and
shall be barred from raising any claims regarding the Expenses
for that year. If Tenant provides Landlord with a timely
Objection Notice, Landlord and Tenant shall work together in good
faith to resolve any issues raised in Tenant's Objection Notice.
If Landlord and Tenant determine that Expenses for the calendar
year are less than reported, Landlord shall provide Tenant with a
credit against the next installment of Rent (or refund if such
Expenses adjustment is made after the termination of this Lease
with respect to any calendar year of the Term of this Lease for
which Tenant has paid Tenant's Pro Rata Share of Expenses) in the
amount of the overpayment by Tenant. Likewise, if Landlord and
Tenant determine that Expenses for the calendar year are greater
than reported, Tenant shall pay Landlord the amount of any
underpayment within 30 days. The records obtained by Tenant shall
be treated as confidential. In no event shall Tenant be permitted
to examine Landlord's records or to dispute any statement of
Expenses unless Tenant has paid and continues to pay all Rent
when due.
V. COMPLIANCE WITH LAWS; USE.
The Premises shall be used only for the Permitted Use and for no other use
whatsoever. Tenant shall not use or permit the use of the Premises for any
purpose which is illegal, dangerous to persons or property or which, in
Landlord's reasonable opinion, unreasonably disturbs any other tenants of the
Building or interferes with the operation of the Building. Tenant shall comply
with all Laws, including the Americans with Disabilities Act, regarding the
operation of Tenant's business and the use, condition, configuration and
occupancy of the Premises. Tenant, within 10 days after receipt, shall provide
Landlord with copies of any notices it receives regarding a violation or alleged
violation of any Laws. Tenant shall comply with the rules and regulations of the
Building attached as EXHIBIT B and such other reasonable rules and regulations
adopted by Landlord from time to time. Tenant shall also cause its agents,
contractors, subcontractors, employees, customers, and subtenants to comply with
all rules and regulations. Landlord shall not knowingly discriminate against
Tenant in Landlord's enforcement of the rules and regulations. Except to the
extent properly included in Expenses, Landlord shall be responsible for the cost
of correcting any violations of Title III of the Americans with Disabilities Act
(ADA) with respect to the Common Areas of the Building. Notwithstanding the
foregoing, Landlord shall have the right to contest any alleged violation in
good faith, including, without limitation, the right to apply for and obtain a
waiver or deferment of compliance, the right to assert any and all defenses
allowed by law and the right to appeal any decisions, judgments or rulings to
the fullest extent permitted by law. Landlord, after the exhaustion of any and
all rights to appeal or contest, will make all repairs, additions, alterations
or improvements necessary to comply with the terms of any final order or
judgment.
VI. SECURITY DEPOSIT.
A. The Security Deposit shall be delivered to Landlord upon the
execution of this Lease by Tenant and shall be held by Landlord
without liability for interest (unless required by Law) as
security for the performance of Tenant's obligations. The
Security Deposit is not an advance payment of Rent or a measure
of
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Tenant's liability for damages. Landlord may, from time to time,
without prejudice to any other remedy, use all or a portion of
the Security Deposit to satisfy past due Rent or to cure any
uncured default by Tenant. If Landlord uses the Security Deposit,
Tenant shall on demand restore the Security Deposit to its
original amount. Landlord shall return any unapplied portion of
the Security Deposit to Tenant within 45 days after the later to
occur of: (1) the determination of Tenant's Pro Rata Share of any
Tax Excess and Expense Excess for the final year of the Term; (2)
the date Tenant surrenders possession of the Premises to Landlord
in accordance with this Lease; or (3) the Termination Date. If
Landlord transfers its interest in the Premises, Landlord may
assign the Security Deposit to the transferee and, following the
assignment, Landlord shall have no further liability for the
return of the Security Deposit. Landlord shall not be required to
keep the Security Deposit separate from its other accounts.
B. The Security Deposit may be in the form of an irrevocable letter
of credit (the "Letter of Credit"), which Letter of Credit shall:
(a) be in the initial amount of $700,000.00; (b) be issued on the
form attached hereto as EXHIBIT E; (c) name Landlord as its
beneficiary; (d) be drawn on an FDIC insured financial
institution satisfactory to the Landlord; and (e) expire no
earlier than 60 days after the Termination Date of this Lease.
VII. SERVICES TO BE FURNISHED BY LANDLORD.
A. Landlord agrees to furnish Tenant with the following services:
(1) Water service for use in the lavatories on each floor on
which the Premises are located; (2) Heat and air conditioning in
season during Normal Business Hours, at such temperatures and in
such amounts as are standard for comparable buildings or as
required by governmental authority. Tenant, upon such advance
notice as is reasonably required by Landlord, shall have the
right to receive HVAC service during hours other than Normal
Business Hours. Tenant shall pay Landlord the standard charge for
the additional service as reasonably determined by Landlord from
time to time; (3) Maintenance and repair of the Property as
described in Section IX.B.; (4) Janitor service on Business Days.
If Tenant's use, floor covering or other improvements require
special services in excess of the standard services for the
Building, Tenant shall pay the additional cost attributable to
the special services; (5) Elevator service; (6) Electricity to
the Premises for general office use, in accordance with and
subject to the terms and conditions in Article X; and (7) such
other services as Landlord reasonably determines are necessary or
appropriate for the Property.
B. Landlord's failure to furnish, or any interruption or termination
of, services due to the application of Laws, the failure of any
equipment, the performance of repairs, improvements or
alterations, or the occurrence of any event or cause beyond the
reasonable control of Landlord (a "Service Failure") shall not
render Landlord liable to Tenant, constitute a constructive
eviction of Tenant, give rise to an abatement of Rent, nor
relieve Tenant from the obligation to fulfill any covenant or
agreement. However, if the Premises, or a material portion of the
Premises, is made untenantable for a period in excess of 3
consecutive Business Days as a result of the Service Failure,
then Tenant, as its sole remedy, shall be entitled to receive an
abatement of Rent payable hereunder during the period beginning
on the 4th consecutive Business Day of the Service Failure and
ending on the day the service has been restored. If the entire
Premises has not been rendered untenantable by the Service
Failure, the amount of abatement that Tenant is entitled to
receive shall be prorated based upon the percentage of the
Premises rendered untenantable and not used by Tenant. In no
event, however, shall Landlord be liable to Tenant for any loss
or damage, including the theft of Tenant's Property (defined in
Article XV), arising out of or in connection with the failure of
any security services, personnel or equipment unless caused by
the gross negligence or willful misconduct of Landlord.
VIII. LEASEHOLD IMPROVEMENTS.
All improvements to the Premises (collectively, "Leasehold
Improvements") shall be owned by Landlord and shall remain upon the Premises
without compensation to Tenant. However, Landlord, by written notice to Tenant
within 30 days prior to the Termination Date,
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may require Tenant to remove, at Tenant's expense: (1) Cable (defined in Section
IX.A) installed by or for the exclusive benefit of Tenant and located in the
Premises or other portions of the Building; and (2) any Leasehold Improvements
that are performed by or for the benefit of Tenant and, in Landlord's reasonable
judgment, are of a nature that would require removal and repair costs that are
materially in excess of the removal and repair costs associated with standard
office improvements (collectively referred to as "Required Removables"). Without
limitation, it is agreed that Required Removables include internal stairways,
raised floors, personal baths and showers, vaults, rolling file systems and
structural alterations and modifications of any type. The Required Removables
designated by Landlord shall be removed by Tenant before the Termination Date,
provided that upon prior written notice to Landlord, Tenant may remain in the
Premises for up to 5 days after the Termination Date for the sole purpose of
removing the Required Removables. Tenant's possession of the Premises shall be
subject to all of the terms and conditions of this Lease, including the
obligation to pay Rent on a per diem basis at the rate in effect for the last
month of the Term. Tenant shall repair damage caused by the installation or
removal of Required Removables. If Tenant fails to remove any Required
Removables or perform related repairs in a timely manner, Landlord, at Tenant's
expense, may remove and dispose of the Required Removables and perform the
required repairs. Tenant, within 30 days after receipt of an invoice, shall
reimburse Landlord for the reasonable costs incurred by Landlord.
Notwithstanding the foregoing, Tenant, at the time it requests approval for a
proposed Alteration (defined in Section IX.C), may request in writing that
Landlord advise Tenant whether the Alteration or any portion of the Alteration
will be designated as a Required Removable. Within 10 days after receipt of
Tenant's request, Landlord shall advise Tenant in writing as to which portions
of the Alteration, if any, will be considered to be Required Removables.
IX. REPAIRS AND ALTERATIONS.
A. Tenant's Repair Obligations. Tenant shall, at its sole cost and
expense, promptly perform all maintenance and repairs to the
Premises that are not Landlord's express responsibility under
this Lease, and shall keep the Premises in good condition and
repair, reasonable wear and tear excepted. Tenant's repair
obligations include, without limitation, repairs to: (1) floor
covering; (2) interior partitions; (3) doors; (4) the interior
side of demising walls; (5) electronic, phone and data cabling
and related equipment (collectively, "Cable") that is installed
by or for the exclusive benefit of Tenant and located in the
Premises or other portions of the Building; (6) supplemental air
conditioning units, private showers and kitchens, including hot
water heaters, plumbing, and similar facilities serving Tenant
exclusively; and (7) Alterations performed by contractors
retained by Tenant, including related HVAC balancing. All work
shall be performed in accordance with the rules and procedures
described in Section IX.C. below. If Tenant fails to make any
repairs to the Premises for more than 15 days after notice from
Landlord (although notice shall not be required if there is an
emergency), Landlord may make the repairs, and Tenant shall pay
the reasonable cost of the repairs to Landlord within 30 days
after receipt of an invoice, together with an administrative
charge in an amount equal to 10% of the cost of the repairs.
B. Landlord's Repair Obligations. Landlord shall keep and maintain
in good repair and working order and make repairs to and perform
maintenance upon: (1) structural elements of the Building; (2)
mechanical (including HVAC), electrical, plumbing and fire/life
safety systems serving the Building in general; (3) Common Areas;
(4) the roof of the Building; (5) exterior windows of the
Building; and (6) elevators serving the Building. Landlord shall
promptly make repairs (considering the nature and urgency of the
repair) for which Landlord is responsible.
C. Alterations. Tenant shall not make alterations, additions or
improvements to the Premises or install any Cable in the Premises
or other portions of the Building (collectively referred to as
"Alterations") without first obtaining the written consent of
Landlord in each instance, which consent shall not be
unreasonably withheld or delayed. However, Landlord's consent
shall not be required for any Alteration that satisfies all of
the following criteria (a "Cosmetic Alteration"): (1) is of a
cosmetic nature such as painting, wallpapering, hanging pictures
and installing carpeting; (2) is not visible from the exterior of
the Premises or Building; (3) will not affect the systems or
structure of the Building; and (4) does not require work
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to be performed inside the walls or above the ceiling of the
Premises. However, even though consent is not required, the
performance of Cosmetic Alterations shall be subject to all the
other provisions of this Section IX.C. Prior to starting work,
Tenant shall furnish Landlord with plans and specifications
reasonably acceptable to Landlord; names of contractors
reasonably acceptable to Landlord (provided that Landlord may
designate specific contractors with respect to Building systems);
copies of contracts; necessary permits and approvals; evidence of
contractor's and subcontractor's insurance in amounts reasonably
required by Landlord; and any security for performance that is
reasonably required by Landlord. Changes to the plans and
specifications must also be submitted to Landlord for its
approval. Alterations shall be constructed in a good and
workmanlike manner using materials of a quality that is at least
equal to the quality designated by Landlord as the minimum
standard for the Building. Landlord may designate reasonable
rules, regulations and procedures for the performance of work in
the Building and, to the extent reasonably necessary to avoid
disruption to the occupants of the Building, shall have the right
to designate the time when Alterations may be performed. Tenant
shall reimburse Landlord within 30 days after receipt of an
invoice for sums paid by Landlord for third party examination of
Tenant's plans for non-Cosmetic Alterations. In addition, within
30 days after receipt of an invoice from Landlord, Tenant shall
pay Landlord a fee for Landlord's oversight and coordination of
any non-Cosmetic Alterations equal to 5% of the cost of the
non-Cosmetic Alterations. Landlord and Tenant acknowledge and
agree that such 5% fee for Landlord's oversight of non-Cosmetic
Alterations shall not apply to the Initial Alterations, and that
Landlord shall instead be entitled to receive the fees for
oversight of the Initial Alterations as set forth in EXHIBIT D.
Upon completion, Tenant shall furnish "as-built" plans (except
for Cosmetic Alterations), completion affidavits, full and final
waivers of lien in recordable form, and receipted bills covering
all labor and materials. Tenant shall assure that the Alterations
comply with all insurance requirements and Laws. Landlord's
approval of an Alteration shall not be a representation by
Landlord that the Alteration complies with applicable Laws or
will be adequate for Tenant's use.
X. USE OF ELECTRICAL SERVICES BY TENANT.
A. Electricity used by Tenant in the Premises shall, at Landlord's
option, be paid for by Tenant either: (1) through inclusion in
Expenses (except as provided in Section X.B. for excess usage);
(2) by a separate charge payable by Tenant to Landlord within 30
days after billing by Landlord; or (3) by separate charge billed
by the applicable utility company and payable directly by Tenant.
Electrical service to the Premises may be furnished by one or
more companies providing electrical generation, transmission and
distribution services, and the cost of electricity may consist of
several different components or separate charges for such
services, such as generation, distribution and stranded cost
charges. Landlord shall have the exclusive right to select any
company providing electrical service to the Premises, to
aggregate the electrical service for the Property and Premises
with other buildings, to purchase electricity through a broker
and/or buyers group and to change the providers and manner of
purchasing electricity. Landlord shall be entitled to receive a
fee (if permitted by Law) for the selection of utility companies
and the negotiation and administration of contracts for
electricity, provided that the amount of such fee shall not
exceed 50% of any savings obtained by Landlord.
B. Tenant's use of electrical service shall not exceed, either in
voltage, rated capacity, use beyond Normal Business Hours or
overall load, that which Landlord deems to be standard for the
Building. If Tenant requests permission to consume excess
electrical service, Landlord may refuse to consent only if
Landlord reasonably determines that the Building is unable to
provide such excess electrical service or if Landlord is
prohibited from granting consent because of any Laws, or if
Landlord reasonably determines that Tenant's use of such excess
electrical services will otherwise detrimentally impact
Landlord's ability to provide electrical service or other
services to the Common Areas or other tenants in the Building. If
Landlord does not elect to refuse such consent, Landlord may
condition its consent upon conditions that Landlord reasonably
elects (including, without limitation, the installation of
utility service upgrades,
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meters, submeters, air handlers or cooling units), and the
additional usage (to the extent permitted by Law), installation
and maintenance costs shall be paid by Tenant. Landlord shall
have the right to separately meter electrical usage for the
Premises and to measure electrical usage by survey or other
commonly accepted methods.
XI. ENTRY BY LANDLORD.
Landlord, its agents, contractors and representatives may enter the
Premises to inspect or show the Premises, to clean and make repairs, alterations
or additions to the Premises, and to conduct or facilitate repairs, alterations
or additions to any portion of the Building, including other tenants' premises.
Except in emergencies or to provide janitorial and other Building services after
Normal Business Hours, Landlord shall provide Tenant with reasonable prior
notice of entry into the Premises, which may be given orally. If reasonably
necessary for the protection and safety of Tenant and its employees, Landlord
shall have the right to temporarily close all or a portion of the Premises to
perform repairs, alterations and additions. However, except in emergencies,
Landlord will not close the Premises if the work can reasonably be completed on
weekends and after Normal Business Hours. Entry by Landlord shall not constitute
constructive eviction or entitle Tenant to an abatement or reduction of Rent.
XII. ASSIGNMENT AND SUBLETTING.
A. Except in connection with a Permitted Transfer (defined in
Section XII.E. below), Tenant shall not assign, sublease,
transfer or encumber any interest in this Lease or allow any
third party to use any portion of the Premises (collectively or
individually, a "Transfer") without the prior written consent of
Landlord, which consent shall not be unreasonably withheld or
delayed if Landlord does not elect to exercise its termination
rights under Section XII.B below. Without limitation, it is
agreed that Landlord's consent shall not be considered
unreasonably withheld if: (1) the proposed transferee's financial
condition does not meet the criteria Landlord uses to select
Building tenants having similar leasehold obligations; (2) the
proposed transferee's business is not suitable for the Building
considering the business of the other tenants and the Building's
prestige, or would result in a violation of another tenant's
rights; (3) the proposed transferee is a governmental agency or
occupant of the Building; (4) Tenant is in default after the
expiration of the notice and cure periods in this Lease; or (5)
any portion of the Building or Premises would likely become
subject to additional or different Laws as a consequence of the
proposed Transfer. Tenant shall not be entitled to receive
monetary damages based upon a claim that Landlord unreasonably
withheld its consent to a proposed Transfer and Tenant's sole
remedy shall be an action to enforce any such provision through
specific performance or declaratory judgment. Any attempted
Transfer in violation of this Article shall, at Landlord's
option, be void. Consent by Landlord to one or more Transfer(s)
shall not operate as a waiver of Landlord's rights to approve any
subsequent Transfers. In no event shall any Transfer or Permitted
Transfer release or relieve Tenant from any obligation under this
Lease.
B. As part of its request for Landlord's consent to a Transfer,
Tenant shall provide Landlord with financial statements for the
proposed transferee, a complete copy of the proposed assignment,
sublease and other contractual documents and such other
information as Landlord may reasonably request. Landlord shall,
by written notice to Tenant within 30 days of its receipt of the
required information and documentation, either: (1) consent to
the Transfer by the execution of a consent agreement in a form
reasonably designated by Landlord or reasonably refuse to consent
to the Transfer in writing; or (2) exercise its right to
terminate this Lease with respect to the portion of the Premises
that Tenant is proposing to assign or sublet. Any such
termination shall be effective on the proposed effective date of
the Transfer for which Tenant requested consent. Tenant shall pay
Landlord a review fee of $750.00 for Landlord's review of any
Permitted Transfer or requested Transfer, provided if Landlord's
actual reasonable costs and expenses (including reasonable
attorney's fees) exceed $750.00, Tenant shall reimburse Landlord
for its actual reasonable costs and expenses in lieu of a fixed
review fee.
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C. Tenant shall pay Landlord 60% of all rent and other consideration
which Tenant receives as a result of a Transfer that is in excess
of the Rent payable to Landlord for the portion of the Premises
and Term covered by the Transfer. Tenant shall pay Landlord for
Landlord's share of any excess within 30 days after Tenant's
receipt of such excess consideration. Tenant may deduct from the
excess all reasonable and customary expenses directly incurred by
Tenant attributable to the Transfer (other than Landlord's review
fee), including brokerage fees, legal fees and construction
costs. If Tenant is in Monetary Default (defined in Section
XIX.A. below), Landlord may require that all sublease payments be
made directly to Landlord, in which case Tenant shall receive a
credit against Rent in the amount of any payments received (less
Landlord's share of any excess).
D. If Tenant is a corporation, limited liability company,
partnership, or similar entity, and if the entity which owns or
controls a majority of the voting shares/rights at any time
changes for any reason, such change of ownership or control shall
constitute a Transfer; provided that if the Tenant's net worth
after such change in the ownership or control of a majority of
the voting shares/rights is equal to the greater of Tenant's net
worth at the date of this Lease or the net worth of the Tenant on
the day prior to such change in the ownership or control of a
majority of the voting shares/rights, and the provisions of
subclauses (1), (4) and (5) of Article XII.E. below are otherwise
satisfied, such change of ownership or control shall constitute a
Permitted Transfer. Furthermore, a change in the ownership or
control of a majority of the voting shares/rights of the Tenant
shall not constitute a Transfer so long as Tenant is an entity
whose outstanding stock is listed on a recognized security
exchange, or if at least 80% of its voting stock is owned by
another entity, the voting stock of which is so listed.
E. Tenant may assign its entire interest under this Lease to a
successor to Tenant by purchase, merger, consolidation or
reorganization without the consent of Landlord, provided that all
of the following conditions are satisfied (a "Permitted
Transfer"): (1) Tenant is not in default under this Lease; (2)
Tenant's successor shall own all or substantially all of the
assets of Tenant; (3) Tenant's successor shall have a net worth
which is at least equal to the greater of Tenant's net worth at
the date of this Lease or Tenant's net worth as of the day prior
to the proposed purchase, merger, consolidation or
reorganization; (4) the Permitted Use does not allow the Premises
to be used for retail purposes; and (5) Tenant shall give
Landlord written notice at least 15 days prior to the date the
proposed purchase, merger, consolidation or reorganization
actually occurs. Tenant's notice to Landlord shall include
information and documentation showing that each of the above
conditions has been satisfied. If requested by Landlord, Tenant's
successor shall sign a commercially reasonable form of assumption
agreement.
XIII. LIENS.
Tenant shall not permit mechanic's or other liens to be placed upon the
Property, Premises or Tenant's leasehold interest in connection with any work or
service done or purportedly done by or for benefit of Tenant. If a lien is so
placed, Tenant shall, within 10 days of notice from Landlord of the filing of
the lien, fully discharge the lien by settling the claim which resulted in the
lien or by bonding or insuring over the lien in the manner prescribed by the
applicable lien Law. If Tenant fails to discharge the lien, then, in addition to
any other right or remedy of Landlord, Landlord may bond or insure over the lien
or otherwise discharge the lien. Tenant shall reimburse Landlord for any amount
paid by Landlord to bond or insure over the lien or discharge the lien,
including, without limitation, reasonable attorneys' fees (if and to the extent
permitted by Law) within 30 days after receipt of an invoice from Landlord.
XIV. INDEMNITY AND WAIVER OF CLAIMS.
A. Except to the extent caused by the negligence or willful
misconduct of Landlord or any Landlord Related Parties (defined
below), Tenant shall indemnify, defend and hold Landlord, its
trustees, members, principals, beneficiaries, partners, officers,
directors, employees, Mortgagee(s) (defined in Article XXVI) and
agents ("Landlord Related Parties") harmless against and from all
liabilities, obligations, damages, penalties, claims, actions,
costs, charges and expenses, including, without limitation,
reasonable attorneys' fees and other professional fees (if and
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to the extent permitted by Law), which may be imposed upon,
incurred by or asserted against Landlord or any of the Landlord
Related Parties and arising out of or in connection with any
damage or injury occurring in the Premises or any acts or
omissions (including violations of Law) of Tenant, the Tenant
Related Parties (defined below) or any of Tenant's transferees,
contractors or licensees.
B. Except to the extent caused by the negligence or willful
misconduct of Tenant or any Tenant Related Parties (defined
below), Landlord shall indemnify, defend and hold Tenant, its
trustees, members, principals, beneficiaries, partners, officers,
directors, employees and agents ("Tenant Related Parties")
harmless against and from all liabilities, obligations, damages,
penalties, claims, actions, costs, charges and expenses,
including, without limitation, reasonable attorneys' fees and
other professional fees (if and to the extent permitted by Law),
which may be imposed upon, incurred by or asserted against Tenant
or any of the Tenant Related Parties and arising out of or in
connection with the acts or omissions (including violations of
Law) of Landlord, the Landlord Related Parties or any of
Landlord's contractors.
C. Landlord and the Landlord Related Parties shall not be liable
for, and Tenant waives, all claims for loss or damage to Tenant's
business or loss, theft or damage to Tenant's Property or the
property of any person claiming by, through or under Tenant
resulting from: (1) wind or weather; (2) the failure of any
sprinkler, heating or air-conditioning equipment, any electric
wiring or any gas, water or steam pipes; (3) the backing up of
any sewer pipe or downspout; (4) the bursting, leaking or running
of any tank, water closet, drain or other pipe; (5) water, snow
or ice upon or coming through the roof, skylight, stairs,
doorways, windows, walks or any other place upon or near the
Building; (6) any act or omission of any party other than
Landlord or Landlord Related Parties; and (7) any causes not
reasonably within the control of Landlord. Tenant shall insure
itself against such losses under Article XV below.
Notwithstanding the foregoing, except as provided in Article XVI
to the contrary, Tenant shall not be required to waive any claims
against Landlord (other than for loss or damage to Tenant's
business) where such loss or damage is due to the gross
negligence or willful misconduct of Landlord. Nothing herein
shall be construed as to diminish the repair and maintenance
obligations of Landlord contained elsewhere in this Lease.
XV. INSURANCE.
Tenant shall carry and maintain the following insurance ("Tenant's
Insurance"), at its sole cost and expense: (1) Commercial General Liability
Insurance applicable to the Premises and its appurtenances providing, on an
occurrence basis, a minimum combined single limit of $2,000,000.00; (2) All Risk
Property/Business Interruption Insurance, including flood and earthquake,
written at replacement cost value and with a replacement cost endorsement
covering all of Tenant's trade fixtures, equipment, furniture and other personal
property within the Premises ("Tenant's Property"); (3) Workers' Compensation
Insurance as required by the state in which the Premises is located and in
amounts as may be required by applicable statute; and (4) Employers Liability
Coverage of at least $1,000,000.00 per occurrence. Any company writing any of
Tenant's Insurance shall have an A.M. Best rating of not less than A-VIII. All
Commercial General Liability Insurance policies shall name Tenant as a named
insured and Landlord (or any successor), Equity Office Properties Trust, a
Maryland real estate investment trust, EOP Operating Limited Partnership, a
Delaware limited partnership, and their respective members, principals,
beneficiaries, partners, officers, directors, employees, and agents, and other
designees of Landlord as the interest of such designees shall appear, as
additional insureds. All policies of Tenant's Insurance shall contain
endorsements that the insurer(s) shall give Landlord and its designees at least
30 days' advance written notice of any change, cancellation, termination or
lapse of insurance. Tenant shall provide Landlord with a certificate of
insurance evidencing Tenant's Insurance prior to the earlier to occur of the
Premises Commencement Date or the date Tenant is provided with possession of the
Premises for any reason, and upon renewals at least 15 days prior to the
expiration of the insurance coverage. So long as the same is available at
commercially reasonable rates, Landlord shall maintain so called All Risk
property insurance on the Building at replacement cost value, as reasonably
estimated by Landlord. Except as specifically provided to the contrary, the
limits of either party's' insurance shall not limit such party's liability under
this Lease.
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XVI. SUBROGATION.
Notwithstanding anything in this Lease to the contrary, Landlord and
Tenant shall cause their respective insurance carriers to waive any and all
rights of recovery, claim, action or causes of action against the other and
their respective trustees, principals, beneficiaries, partners, officers,
directors, agents, and employees, for any loss or damage that may occur to
Landlord or Tenant or any party claiming by, through or under Landlord or
Tenant, as the case may be, with respect to Tenant's Property, the Building, the
Premises, any additions or improvements to the Building or Premises, or any
contents thereof, including all rights of recovery, claims, actions or causes of
action arising out of the negligence of Landlord or any Landlord Related Parties
or the negligence of Tenant or any Tenant Related Parties, which loss or damage
is (or would have been, had the insurance required by this Lease been carried)
covered by insurance.
XVII. CASUALTY DAMAGE.
A. If all or any part of the Premises is damaged by fire or other
casualty, Tenant shall immediately notify Landlord in writing.
During any period of time that all or a material portion of the
Premises is rendered untenantable as a result of a fire or other
casualty, the Rent shall abate for the portion of the Premises
that is untenantable and not used by Tenant. Landlord shall have
the right to terminate this Lease if: (1) the Building shall be
damaged so that, in Landlord's reasonable judgment, substantial
alteration or reconstruction of the Building shall be required
(whether or not the Premises has been damaged); (2) Landlord is
not permitted by Law to rebuild the Building in substantially the
same form as existed before the fire or casualty; (3) the
Premises have been materially damaged and there is less than 1
year of the Term remaining on the date of the casualty; (4) any
Mortgagee requires that the insurance proceeds be applied to the
payment of the mortgage debt; or (5) a material uninsured loss to
the Building occurs. Landlord may exercise its right to terminate
this Lease by notifying Tenant in writing within 90 days after
the date of the casualty. In addition to Landlord's rights to
terminate as provided herein, Tenant shall have the right to
terminate this Lease if: (1) a substantial portion of the
Premises has been damaged by fire or other casualty and such
damage cannot reasonably be repaired within 60 days after the
date of such fire or other casualty; (2) there is less than1 year
of the Lease Term remaining on the date of such casualty; (3) the
casualty was not caused by the negligence or willful misconduct
of Tenant or its agents, employees or contractors; and (4) Tenant
provides Landlord with written notice of its intent to terminate
within 30 days after the date of the fire or other casualty. If
neither Landlord nor Tenant elect to terminate this Lease,
Landlord shall commence and proceed with reasonable diligence to
repair and restore the Building and the Leasehold Improvements
(excluding any Alterations that were performed by Tenant in
violation of this Lease). However, in no event shall Landlord be
required to spend more than the insurance proceeds received by
Landlord. Landlord shall not be liable for any loss or damage to
Tenant's Property or to the business of Tenant resulting in any
way from the fire or other casualty or from the repair and
restoration of the damage. Landlord and Tenant hereby waive the
provisions of any Law relating to the matters addressed in this
Article, and agree that their respective rights for damage to or
destruction of the Premises shall be those specifically provided
in this Lease.
B. If all or any portion of the Premises shall be made untenantable
by fire or other casualty, Landlord shall, with reasonable
promptness, cause an architect or general contractor selected by
Landlord to provide Landlord and Tenant with a written estimate
of the amount of time required to substantially complete the
repair and restoration of the Premises and make the Premises
tenantable again, using standard working methods ("Completion
Estimate"). If the Completion Estimate indicates that the
Premises cannot be made tenantable within 270 days from the date
the repair and restoration is started, then regardless of
anything in Section XVII.A above to the contrary, either party
shall have the right to terminate this Lease by giving written
notice to the other of such election within 10 days after receipt
of the Completion Estimate. Tenant, however, shall not have the
right to terminate this Lease if the fire or casualty was caused
by the negligence or intentional misconduct of Tenant, Tenant
Related Parties or any of Tenant's transferees, contractors or
licensees.
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XVIII. CONDEMNATION.
Either party may terminate this Lease if the whole or any material part
of the Premises shall be taken or condemned for any public or quasi-public use
under Law, by eminent domain or private purchase in lieu thereof (a "Taking").
Landlord shall also have the right to terminate this Lease if there is a Taking
of any portion of the Building or Property which would leave the remainder of
the Building unsuitable for use as an office building in a manner comparable to
the Building's use prior to the Taking. In order to exercise its right to
terminate the Lease, Landlord or Tenant, as the case may be, must provide
written notice of termination to the other within 45 days after the terminating
party first receives notice of the Taking. Any such termination shall be
effective as of the date the physical taking of the Premises or the portion of
the Building or Property occurs. If this Lease is not terminated, the Rentable
Square Footage of the Building, the Rentable Square Footage of the Premises and
Tenant's Pro Rata Share shall, if applicable, be appropriately adjusted. In
addition, Rent for any portion of the Premises taken or condemned shall be
abated during the unexpired Term of this Lease effective when the physical
taking of the portion of the Premises occurs. All compensation awarded for a
Taking, or sale proceeds (other than any compensation which may be separately
awarded to Tenant pursuant to the terms of the next succeeding sentence), shall
be the property of Landlord, any right to receive compensation or proceeds being
expressly waived by Tenant. However, Tenant may file a separate claim at its
sole cost and expense in connection with such Taking for Tenant's Property and
Tenant's reasonable relocation expenses, provided the filing of the claim does
not diminish the award which would otherwise be receivable by Landlord.
XIX. EVENTS OF DEFAULT.
Tenant shall be considered to be in default of this Lease upon the
occurrence of any of the following events of default:
A. Tenant's failure to pay when due all or any portion of the Rent,
if the failure continues for 3 days after written notice to
Tenant ("Monetary Default").
B. Tenant's failure (other than a Monetary Default) to comply with
any term, provision or covenant of this Lease, if the failure is
not cured within 10 days after written notice to Tenant. However,
if Tenant's failure to comply cannot reasonably be cured within
10 days, Tenant shall be allowed additional time (not to exceed
75 days) as is reasonably necessary to cure the failure so long
as: (1) Tenant commences to cure the failure within 10 days, and
(2) Tenant diligently pursues a course of action that will cure
the failure and bring Tenant back into compliance with the Lease.
However, if Tenant's failure to comply creates a hazardous
condition, the failure must be cured immediately upon notice to
Tenant. In addition, if Landlord provides Tenant with notice of
Tenant's failure to comply with any particular term, provision or
covenant of the Lease on 3 occasions during any 12 month period,
Tenant's subsequent violation of such term, provision or covenant
shall, at Landlord's option, be an incurable event of default by
Tenant.
C. Tenant or any Guarantor is unable to pay its debts when due or
admits in writing its inability to pay its debts when due, makes
a transfer in fraud of creditors or makes an assignment for the
benefit of creditors.
D. Tenant obtains its leasehold estate by a taking of the leasehold
estate of a prior tenant hereunder by process or operation of
Law.
E In the case of any ground floor or retail Tenant, Tenant does not
take possession of, or abandons or vacates all or any portion of
the Premises.
F. Tenant is in default beyond any notice and cure period under any
other lease or agreement with Landlord in the Building (other
than for parking).
XX. REMEDIES.
A. Upon the occurrence of any event or events of default under this
Lease, whether enumerated in Article XIX or not, Landlord shall
have the option to pursue any one
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or more of the following remedies without any notice or demand
whatsoever (except as expressly prescribed herein or imposed by
applicable Law):
1. Terminate this Lease and Tenant's right to possession of
the Premises and recover from Tenant an award of damages
equal to the sum of the following:
(a) The Worth at the Time of Award of the unpaid Rent
which had been earned at the time of termination;
(b) The Worth at the Time of Award of the amount by
which the unpaid Rent which would have been earned
after termination until the time of award exceeds
the amount of such Rent loss that Tenant
affirmatively proves could have been reasonably
avoided;
(c) The Worth at the Time of Award of the amount by
which the unpaid Rent for the balance of the Term
after the time of award exceeds the amount of such
Rent loss that Tenant affirmatively proves could be
reasonably avoided;
(d) Any other amount necessary to compensate Landlord
for all the detriment either proximately caused by
Tenant's failure to perform Tenant's obligations
under this Lease or which in the ordinary course of
things would be likely to result therefrom; and
(e) All such other amounts in addition to or in lieu of
the foregoing as may be permitted from time to time
under applicable law.
The "Worth at the Time of Award" of the amounts referred
to in parts (a) and (b) above, shall be computed by
allowing interest at the lesser of a per annum rate equal
to: (i) the greatest per annum rate of interest permitted
from time to time under applicable law, or (ii) the Prime
Rate plus five percent (5%). For purposes hereof, the
"Prime Rate" shall be the per annum interest rate publicly
announced as its prime or base rate by a federally insured
bank selected by Landlord in the State of California. The
"Worth at the Time of Award" of the amount referred to in
part (c), above, shall be computed by discounting such
amount at the discount rate of the Federal Reserve Bank of
San Francisco at the time of award plus one percent (1%);
2. Employ the remedy described in California Civil Code
Section 1951.4 (Landlord may continue this Lease in effect
after Tenant's breach and abandonment and recover Rent as
it becomes due, if Tenant has the right to sublet or
assign, subject only to reasonable limitations); or
3. Notwithstanding Landlord's exercise of the remedy
described in California Civil Code Section 1951.4 in
respect of an event or events of default, at such time
thereafter as Landlord may elect in writing, to terminate
this Lease and Tenant's right to possession of the
Premises and recover an award of damages as provided above
in Paragraph XX.A.1.
B. The subsequent acceptance of Rent hereunder by Landlord shall not
be deemed to be a waiver of any preceding breach by Tenant of any
term, covenant or condition of this Lease, other than the failure
of Tenant to pay the particular Rent so accepted, regardless of
Landlord's knowledge of such preceding breach at the time of
acceptance of such Rent. No waiver by Landlord of any breach
hereof shall be effective unless such waiver is in writing and
signed by Landlord.
C. TENANT HEREBY WAIVES ANY AND ALL RIGHTS CONFERRED BY SECTION 3275
OF THE CIVIL CODE OF CALIFORNIA AND BY SECTIONS 1174 (C) AND 1179
OF THE CODE OF CIVIL PROCEDURE OF CALIFORNIA AND ANY AND ALL
OTHER LAWS AND RULES OF LAW FROM TIME TO TIME IN EFFECT DURING
THE TERM PROVIDING THAT TENANT SHALL HAVE ANY RIGHT TO REDEEM,
REINSTATE OR RESTORE THIS LEASE FOLLOWING ITS TERMINATION BY
REASON OF TENANT'S BREACH. TENANT ALSO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED
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BY LAW, THE RIGHT TO TRIAL BY JURY IN ANY LITIGATION ARISING OUT
OF OR RELATING TO THIS LEASE.
D. No right or remedy herein conferred upon or reserved to Landlord
is intended to be exclusive of any other right or remedy, and
each and every right and remedy shall be cumulative and in
addition to any other right or remedy given hereunder or now or
hereafter existing by agreement, applicable law or in equity. In
addition to other remedies provided in this Lease, Landlord shall
be entitled, to the extent permitted by applicable law, to
injunctive relief, or to a decree compelling performance of any
of the covenants, agreements, conditions or provisions of this
Lease, or to any other remedy allowed to Landlord at law or in
equity. Forbearance by Landlord to enforce one or more of the
remedies herein provided upon an event of default shall not be
deemed or construed to constitute a waiver of such default.
E. This Article XX shall be enforceable to the maximum extent such
enforcement is not prohibited by applicable law, and the
unenforceability of any portion thereof shall not thereby render
unenforceable any other portion.
XXI. LIMITATION OF LIABILITY.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS LEASE, THE
LIABILITY OF LANDLORD (AND OF ANY SUCCESSOR LANDLORD) TO TENANT SHALL BE LIMITED
TO THE INTEREST OF LANDLORD IN THE PROPERTY. TENANT SHALL LOOK SOLELY TO
LANDLORD'S INTEREST IN THE PROPERTY FOR THE RECOVERY OF ANY JUDGMENT OR AWARD
AGAINST LANDLORD. NEITHER LANDLORD NOR ANY LANDLORD RELATED PARTY SHALL BE
PERSONALLY LIABLE FOR ANY JUDGMENT OR DEFICIENCY. BEFORE FILING SUIT FOR AN
ALLEGED DEFAULT BY LANDLORD, TENANT SHALL GIVE LANDLORD AND THE MORTGAGEE(S)
(DEFINED IN ARTICLE XXVI BELOW) WHOM TENANT HAS BEEN NOTIFIED HOLD MORTGAGES
(DEFINED IN ARTICLE XXVI BELOW) ON THE PROPERTY, BUILDING OR PREMISES, NOTICE
AND REASONABLE TIME TO CURE THE ALLEGED DEFAULT.
XXII. NO WAIVER.
Either party's failure to declare a default immediately upon its
occurrence, or delay in taking action for a default shall not constitute a
waiver of the default, nor shall it constitute an estoppel. Either party's
failure to enforce its rights for a default shall not constitute a waiver of its
rights regarding any subsequent default. Receipt by Landlord of Tenant's keys to
the Premises shall not constitute an acceptance or surrender of the Premises.
XXIII. QUIET ENJOYMENT.
Tenant shall, and may peacefully have, hold and enjoy the Premises,
subject to the terms of this Lease, provided Tenant pays the Rent and fully
performs all of its material covenants and agreements. This covenant and all
other covenants of Landlord shall be binding upon Landlord and its successors
only during its or their respective periods of ownership of the Building, and
shall not be a personal covenant of Landlord or the Landlord Related Parties.
XXIV. RELOCATION.
INTENTIONALLY OMITTED.
XXV. HOLDING OVER.
Except for any permitted occupancy by Tenant under Article VIII, if
Tenant fails to surrender the Premises at the expiration or earlier termination
of this Lease, occupancy of the Premises after the termination or expiration
shall be that of a tenancy at sufferance. Tenant's occupancy of the Premises
during the holdover shall be subject to all the terms and provisions of this
Lease and Tenant shall pay an amount (on a per month basis without reduction for
partial months during the holdover) equal to 150% of the greater of: (1) the sum
of the Base Rent and Additional Rent due for the period immediately preceding
the holdover; or (2) the fair market gross rental for the Premises as reasonably
determined by Landlord. No holdover by Tenant or payment by Tenant after the
expiration or early termination of this Lease shall be construed to extend the
Term or prevent Landlord from immediate recovery of possession of
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the Premises by summary proceedings or otherwise. In addition to the payment of
the amounts provided above, if Landlord is unable to deliver possession of the
Premises to a new tenant, or to perform improvements for a new tenant, as a
result of Tenant's holdover and Tenant fails to vacate the Premises within 15
days after Landlord notifies Tenant of Landlord's inability to deliver
possession, or perform improvements, Tenant shall be liable to Landlord for all
damages, including, without limitation, consequential damages, that Landlord
suffers from the holdover.
XXVI. SUBORDINATION TO MORTGAGES; ESTOPPEL CERTIFICATE.
Tenant accepts this Lease subject and subordinate to any mortgage(s),
deed(s) of trust, ground lease(s) or other lien(s) now or subsequently arising
upon the Premises, the Building or the Property, and to renewals, modifications,
refinancings and extensions thereof (collectively referred to as a "Mortgage").
The party having the benefit of a Mortgage shall be referred to as a
"Mortgagee". This clause shall be self-operative, but upon request from a
Mortgagee, Tenant shall execute a commercially reasonable subordination and
non-disturbance agreement in favor of the Mortgagee. In lieu of having the
Mortgage be superior to this Lease, a Mortgagee shall have the right at any time
to subordinate its Mortgage to this Lease. If requested by a
successor-in-interest to all or a part of Landlord's interest in the Lease,
Tenant shall, without charge, attorn to the successor-in-interest. Landlord and
Tenant shall each, within 10 days after receipt of a written request from the
other, execute and deliver an estoppel certificate to those parties as are
reasonably requested by the other (including a Mortgagee or prospective
purchaser). The estoppel certificate shall include a statement certifying that
this Lease is unmodified (except as identified in the estoppel certificate) and
in full force and effect, describing the dates to which Rent and other charges
have been paid, representing that, to such party's actual knowledge, there is no
default (or stating the nature of the alleged default) and indicating other
matters with respect to the Lease that may reasonably be requested.
Notwithstanding the foregoing, as a condition precedent to the subordination of
this Lease, Landlord shall be required to provide Tenant with a non-disturbance,
subordination and attornment agreement in favor of Tenant from any Mortgagee who
comes into existence after the Commencement Date. Such non-disturbance,
subordination and attornment agreement in favor of Tenant shall provide that, so
long as Tenant is paying the rent due under the Lease and is not otherwise in
default under the Lease, its right to possession and other terms of the Lease
shall remain in full force and effect. Such non-disturbance, subordination and
attornment agreement may include additional time on behalf of the Mortgagee to
cure defaults of the Landlord and provide that (a) neither Mortgagee nor any
successor-in-interest shall be bound by (i) any payment of the Base Rent,
Additional Rent, or other sum due hereunder for more than 1 month in advance or
(ii) any amendment or modification to the Lease made without the express written
consent of Mortgagee or any successor-in-interest; (b) neither Mortgagee nor any
successor-in-interest will be liable for (i) any act or omission or warranties
of any prior landlord (including Landlord), (ii) the breach of any warranties or
obligations relating to construction of improvements on the property or any
tenant finish work performed or to have been performed by any prior landlord
(including Landlord), or (iii) the return of any security deposit, except to the
extent such deposits have been received by Mortgagee; and (c) neither Mortgagee
nor any successor-in-interest shall be subject to any offsets or defenses which
Tenant might have against any prior landlord (including Landlord).
XXVII. ATTORNEYS' FEES.
If either party institutes a suit against the other for violation of or
to enforce any covenant or condition of this Lease, or if either party
intervenes in any suit in which the other is a party to enforce or protect its
interest or rights, the prevailing party shall be entitled to all of its costs
and expenses, including, without limitation, reasonable attorneys' fees.
XXVIII. NOTICE.
If a demand, request, approval, consent or notice (collectively referred
to as a "notice") shall or may be given to either party by the other, the notice
shall be in writing and delivered by hand or sent by registered or certified
mail with return receipt requested, or sent by overnight or same day courier
service at the party's respective Notice Address(es) set forth in Article I,
except that if Tenant has vacated the Premises (or if the Notice Address for
Tenant is other than the Premises, and Tenant has vacated such address) without
providing Landlord a new Notice Address, Landlord may serve notice in any manner
described in this Article or in any other manner permitted by Law. Each notice
shall be deemed to have been received or given on the earlier to occur of actual
delivery or the date on which delivery is refused, or, if Tenant
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has vacated the Premises or the other Notice Address of Tenant without providing
a new Notice Address, three (3) days after notice is deposited in the U.S. mail
or with a courier service in the manner described above. Either party may, at
any time, change its Notice Address by giving the other party written notice of
the new address in the manner described in this Article.
XXIX. EXCEPTED RIGHTS.
This Lease does not grant any rights to light or air over or about the
Building. Landlord excepts and reserves exclusively to itself the use of: (1)
roofs, (2) telephone, electrical and janitorial closets, (3) equipment rooms,
Building risers or similar areas that are used by Landlord for the provision of
Building services, (4) rights to the land and improvements below the floor of
the Premises, (5) the improvements and air rights above the Premises, (6) the
improvements and air rights outside the demising walls of the Premises, and (7)
the areas within the Premises used for the installation of utility lines and
other installations serving occupants of the Building. Notwithstanding the
foregoing to the contrary, Landlord agrees to work in good faith with Tenant to
provide Tenant with reasonable access to the areas set forth in subclauses (1),
(2), (3) and (4) above (subject to availability and such rules, regulations,
restrictions and requirements as Landlord may designate from time to time) to
enable Tenant to reasonably service its telecommunications needs in the
Premises. Landlord has the right to change the Building's name or address.
Landlord also has the right to make such other changes to the Property and
Building as Landlord deems appropriate, provided the changes do not materially
affect Tenant's ability to use the Premises for the Permitted Use. Landlord
shall also have the right (but not the obligation) to temporarily close the
Building if Landlord reasonably determines that there is an imminent danger of
significant damage to the Building or of personal injury to Landlord's employees
or the occupants of the Building. The circumstances under which Landlord may
temporarily close the Building shall include, without limitation, electrical
interruptions, hurricanes and civil disturbances. A closure of the Building
under such circumstances shall not constitute a constructive eviction nor
entitle Tenant to an abatement or reduction of Rent.
XXX. SURRENDER OF PREMISES.
At the expiration or earlier termination of this Lease or Tenant's right
of possession, Tenant shall remove Tenant's Property (defined in Article XV)
from the Premises, and quit and surrender the Premises to Landlord, broom clean,
and in good order, condition and repair, ordinary wear and tear and damage by
fire or other casualty for which Tenant is not required to make repairs
hereunder excepted. Tenant shall also be required to remove the Required
Removables (including, but not limited to, all Cable) in accordance with Article
VIII. At the expiration or earlier termination of this Lease or Tenant's right
of possession, Tenant shall also remove all routers, and all network and
connectivity equipment installed by or for the exclusive benefit of Tenant and
located in the Premises or other portions of the Building. If Tenant fails to
remove any of Tenant's Property within 2 days after the termination of this
Lease or of Tenant's right to possession, Landlord, at Tenant's sole cost and
expense, shall be entitled (but not obligated) to remove and store Tenant's
Property. Landlord shall not be responsible for the value, preservation or
safekeeping of Tenant's Property. Tenant shall pay Landlord, upon demand, the
expenses and storage charges incurred for Tenant's Property. In addition, if
Tenant fails to remove Tenant's Property from the Premises or storage, as the
case may be, within 30 days after written notice, Landlord may deem all or any
part of Tenant's Property to be abandoned, and title to Tenant's Property shall
be deemed to be immediately vested in Landlord.
XXXI. MISCELLANEOUS.
A. This Lease and the rights and obligations of the parties shall be
interpreted, construed and enforced in accordance with the Laws
of the State of California and Landlord and Tenant hereby
irrevocably consent to the jurisdiction and proper venue of such
state. If any term or provision of this Lease shall to any extent
be invalid or unenforceable, the remainder of this Lease shall
not be affected, and each provision of this Lease shall be valid
and enforced to the fullest extent permitted by Law. The headings
and titles to the Articles and Sections of this Lease are for
convenience only and shall have no effect on the interpretation
of any part of the Lease.
B. Tenant shall not record this Lease or any memorandum without
Landlord's prior written consent.
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C. Landlord and Tenant hereby waive any right to trial by jury in
any proceeding based upon a breach of this Lease.
D. Whenever a period of time is prescribed for the taking of an
action by Landlord or Tenant, the period of time for the
performance of such action shall be extended by the number of
days that the performance is actually delayed due to strikes,
acts of God, shortages of labor or materials, war, civil
disturbances and other causes beyond the reasonable control of
the performing party ("Force Majeure"). However, events of Force
Majeure shall not extend any period of time for the payment of
Rent or other sums payable by either party or any period of time
for the written exercise of an option or right by either party.
E. Landlord shall have the right to transfer and assign, in whole or
in part, all of its rights and obligations under this Lease and
in the Building and/or Property referred to herein, and upon such
transfer Landlord shall be released from any further obligations
hereunder, and Tenant agrees to look solely to the successor in
interest of Landlord for the performance of such obligations.
Notwithstanding the foregoing, unless such liability is assumed
in writing by its successor in interest hereunder, Landlord shall
remain liable after its period of ownership with respect to any
sums due in connection with a breach or default that arose during
such period of ownership.
F. Tenant represents that it has dealt directly with and only with
the Broker as a broker in connection with this Lease. Tenant
shall indemnify and hold Landlord and the Landlord Related
Parties harmless from all claims of any other brokers claiming to
have represented Tenant in connection with this Lease. Landlord
agrees to indemnify and hold Tenant and the Tenant Related
Parties harmless from all claims of any brokers claiming to have
represented Landlord in connection with this Lease.
G. Tenant covenants, warrants and represents that: (1) each
individual executing, attesting and/or delivering this Lease on
behalf of Tenant is authorized to do so on behalf of Tenant; (2)
this Lease is binding upon Tenant; and (3) Tenant is duly
organized and legally existing in the state of its organization
and is qualified to do business in the State of California. If
there is more than one Tenant, or if Tenant is comprised of more
than one party or entity, the obligations imposed upon Tenant
shall be joint and several obligations of all the parties and
entities. Notices, payments and agreements given or made by, with
or to any one person or entity shall be deemed to have been given
or made by, with and to all of them.
H. Time is of the essence with respect to Tenant's exercise of any
expansion, renewal or extension rights granted to Tenant. This
Lease shall create only the relationship of landlord and tenant
between the parties, and not a partnership, joint venture or any
other relationship. This Lease and the covenants and conditions
in this Lease shall inure only to the benefit of and be binding
only upon Landlord and Tenant and their permitted successors and
assigns.
I. The expiration of the Term, whether by lapse of time or
otherwise, shall not relieve either party of any obligations
which accrued prior to or which may continue to accrue after the
expiration or early termination of this Lease. Without limiting
the scope of the prior sentence, it is agreed that Tenant's
obligations under Sections IV.A, IV.B., VIII, XIV, XX, XXV and
XXX shall survive the expiration or early termination of this
Lease.
J. Landlord has delivered a copy of this Lease to Tenant for
Tenant's review only, and the delivery of it does not constitute
an offer to Tenant or an option. This Lease shall not be
effective against any party hereto until an original copy of this
Lease has been signed by such party.
K. All understandings and agreements previously made between the
parties are superseded by this Lease, and neither party is
relying upon any warranty, statement or representation not
contained in this Lease. This Lease may be modified only by a
written agreement signed by Landlord and Tenant.
22
<PAGE> 25
L. Tenant, within 15 days after request, shall provide Landlord with
a current financial statement and such other information as
Landlord may reasonably request in order to create a "business
profile" of Tenant and determine Tenant's ability to fulfill its
obligations under this Lease. Landlord, however, shall not
require Tenant to provide such information unless Landlord is
requested to produce the information in connection with a
proposed financing or sale of the Building. Upon written request
by Tenant, Landlord shall enter into a commercially reasonable
confidentiality agreement covering any confidential information
that is disclosed by Tenant.
XXXII. ENTIRE AGREEMENT.
This Lease and the following exhibits and attachments constitute the
entire agreement between the parties and supersede all prior agreements and
understandings related to the Premises, including all lease proposals, letters
of intent and other documents: EXHIBIT A-1 (Outline and Location of Premises A),
EXHIBIT A-2 (Outline and Location of Premises B), EXHIBIT A-3 (Outline and
Location of Premises C), EXHIBIT B (Rules and Regulations), EXHIBIT C
(Commencement Letter), EXHIBIT D (Work Letter Agreement), EXHIBIT E (Sample
Letter of Credit) and EXHIBIT F (Parking Agreement).
Landlord and Tenant have executed this Lease as of the day and year
first above written.
LANDLORD:
EOP-MISSION STREET, L.L.C., A DELAWARE LIMITED
LIABILITY COMPANY, AS BENEFICIARY OF LAND TRUST
DATED OCTOBER 23, 1996 AND KNOWN AS SHELI Z.
ROSENBERG TRUST NO. 201
By: EOP Operating Limited Partnership,
a Delaware limited partnership, its sole
member
By: Equity Office Properties Trust, a
Maryland real estate investment trust,
its managing general partner
By:____________________________________
Name:__________________________________
Title: ________________________________
TENANT:
QUOKKA SPORTS, INC., A DELAWARE CORPORATION
By: ______________________________
Name: ______________________________
Title: ______________________________
By: ______________________________
Name: ______________________________
Title: ______________________________
23
<PAGE> 26
EXHIBIT A-1
OUTLINE AND LOCATION OF PREMISES A
This Exhibit is attached to and made a part of the Lease dated as of
_____________, 1999, by and between EOP-MISSION STREET, L.L.C., A DELAWARE
LIMITED LIABILITY COMPANY, AS BENEFICIARY OF LAND TRUST DATED OCTOBER 23, 1996
AND KNOWN AS SHELI Z. ROSENBERG TRUST NO. 201 ("Landlord") and QUOKKA SPORTS,
INC., A DELAWARE CORPORATION ("Tenant") for space in the Building located at 201
Mission Street, San Francisco, California.
A-1
<PAGE> 27
EXHIBIT A-2
OUTLINE AND LOCATION OF PREMISES B
This Exhibit is attached to and made a part of the Lease dated as of
_____________, 1999, by and between EOP-MISSION STREET, L.L.C., A DELAWARE
LIMITED LIABILITY COMPANY, AS BENEFICIARY OF LAND TRUST DATED OCTOBER 23, 1996
AND KNOWN AS SHELI Z. ROSENBERG TRUST NO. 201 ("Landlord") and QUOKKA SPORTS,
INC., A DELAWARE CORPORATION ("Tenant") for space in the Building located at 201
Mission Street, San Francisco, California.
A-2
<PAGE> 28
EXHIBIT A-3
OUTLINE AND LOCATION OF PREMISES C
This Exhibit is attached to and made a part of the Lease dated as of
_____________, 1999, by and between EOP-MISSION STREET, L.L.C., A DELAWARE
LIMITED LIABILITY COMPANY, AS BENEFICIARY OF LAND TRUST DATED OCTOBER 23, 1996
AND KNOWN AS SHELI Z. ROSENBERG TRUST NO. 201 ("Landlord") and QUOKKA SPORTS,
INC., A DELAWARE CORPORATION ("Tenant") for space in the Building located at 201
Mission Street, San Francisco, California.
A-3
<PAGE> 29
EXHIBIT B
BUILDING RULES AND REGULATIONS
The following rules and regulations shall apply, where applicable, to
the Premises, the Building, the parking garage (if any), the Property and the
appurtenances. Capitalized terms have the same meaning as defined in the Lease.
1. Sidewalks, doorways, vestibules, halls, stairways and other similar
areas shall not be obstructed by Tenant or used by Tenant for any
purpose other than ingress and egress to and from the Premises. No
rubbish, litter, trash, or material shall be placed, emptied, or thrown
in those areas. At no time shall Tenant permit Tenant's employees to
loiter in Common Areas or elsewhere about the Building or Property.
2. Plumbing fixtures and appliances shall be used only for the purposes for
which designed, and no sweepings, rubbish, rags or other unsuitable
material shall be thrown or placed in the fixtures or appliances. Damage
resulting to fixtures or appliances by Tenant, its agents, employees or
invitees, shall be paid for by Tenant, and Landlord shall not be
responsible for the damage.
3. No signs, advertisements or notices shall be painted or affixed to
windows, doors or other parts of the Building, except those of such
color, size, style and in such places as are first approved in writing
by Landlord. All tenant identification and suite numbers at the entrance
to the Premises shall be installed by Landlord, at Tenant's cost and
expense, using the standard graphics for the Building. Except in
connection with the hanging of lightweight pictures and wall
decorations, no nails, hooks or screws shall be inserted into any part
of the Premises or Building except by the Building maintenance
personnel.
4. Landlord may provide and maintain in the first floor (main lobby) of the
Building an alphabetical directory board or other directory device
listing tenants, and no other directory shall be permitted unless
previously consented to by Landlord in writing.
5. Tenant shall not place any lock(s) on any door in the Premises or
Building without Landlord's prior written consent and Landlord shall
have the right to retain at all times and to use keys to all locks
within and into the Premises. A reasonable number of keys to the locks
on the entry doors in the Premises shall be furnished by Landlord to
Tenant at Tenant's cost, and Tenant shall not make any duplicate keys.
All keys shall be returned to Landlord at the expiration or early
termination of this Lease.
6. All contractors, contractor's representatives and installation
technicians performing work in the Building shall be subject to
Landlord's prior approval and shall be required to comply with
Landlord's standard rules, regulations, policies and procedures, which
may be revised from time to time.
7. Movement in or out of the Building of furniture or office equipment, or
dispatch or receipt by Tenant of merchandise or materials requiring the
use of elevators, stairways, lobby areas or loading dock areas, shall be
restricted to hours designated by Landlord. Tenant shall obtain
Landlord's prior approval by providing a detailed listing of the
activity. If approved by Landlord, the activity shall be under the
supervision of Landlord and performed in the manner required by
Landlord. Tenant shall assume all risk for damage to articles moved and
injury to any persons resulting from the activity. If equipment,
property, or personnel of Landlord or of any other party is damaged or
injured as a result of or in connection with the activity, Tenant shall
be solely liable for any resulting damage or loss.
8. Landlord shall have the right to approve the weight, size, or location
of heavy equipment or articles in and about the Premises. Damage to the
Building by the installation, maintenance, operation, existence or
removal of Tenant's Property shall be repaired at Tenant's sole expense.
9. Corridor doors, when not in use, shall be kept closed.
B-1
<PAGE> 30
10. Tenant shall not: (1) make or permit any improper, objectionable or
unpleasant noises or odors in the Building, or otherwise unreasonably
interfere with other tenants or persons having business with them; (2)
solicit business or distribute, or cause to be distributed, in any
portion of the Building, handbills, promotional materials or other
advertising; or (3) conduct or permit other activities in the Building
that might, in Landlord's sole opinion, constitute a nuisance.
11. No animals, except those assisting handicapped persons, shall be brought
into the Building or kept in or about the Premises.
12. No inflammable, explosive or dangerous fluids or substances shall be
used or kept by Tenant in the Premises, Building or about the Property
except for commercially reasonable quantities of cleaning and office
supplies of a type normally used by tenants in first-class office
buildings, provided that Tenant keeps, maintains, stores, removes and
disposes of such materials in accordance with all applicable Laws, and
any manufacturer's instructions. Tenant shall not, without Landlord's
prior written consent, use, store, install, spill, remove, release or
dispose of, within or about the Premises or any other portion of the
Property, any asbestos-containing materials or any solid, liquid or
gaseous material now or subsequently considered toxic or hazardous under
the provisions of 42 U.S.C. Section 9601 et seq. or any other applicable
environmental Law which may now or later be in effect. Tenant shall
comply with all Laws pertaining to and governing the use of these
materials by Tenant, and shall remain solely liable for the costs of
abatement and removal.
13. Tenant shall not use or occupy the Premises in any manner or for any
purpose which might injure the reputation or impair the present or
future value of the Premises or the Building. Tenant shall not use, or
permit any part of the Premises to be used, for lodging, sleeping or for
any illegal purpose.
14. Tenant shall not take any action which would violate Landlord's labor
contracts or which would cause a work stoppage, picketing, labor
disruption or dispute, or interfere with Landlord's or any other
tenant's or occupant's business or with the rights and privileges of any
person lawfully in the Building ("Labor Disruption"). Tenant shall take
the actions necessary to resolve the Labor Disruption, and shall have
pickets removed and, at the request of Landlord, immediately terminate
any work in the Premises that gave rise to the Labor Disruption, until
Landlord gives its written consent for the work to resume. Tenant shall
have no claim for damages against Landlord or any of the Landlord
Related Parties, nor shall the Premises A Commencement Date, Premises B
Commencement Date or the Premises C Commencement Date be extended as a
result of the above actions.
15. Tenant shall not install, operate or maintain in the Premises or in any
other area of the Building, electrical equipment that would overload the
electrical system beyond its capacity for proper, efficient and safe
operation as determined solely by Landlord. Tenant shall not furnish
cooling or heating to the Premises, including, without limitation, the
use of electronic or gas heating devices, without Landlord's prior
written consent. Tenant shall not use more than its proportionate share
of telephone lines and other telecommunication facilities available to
service the Building.
16. Tenant shall not operate or permit to be operated a coin or token
operated vending machine or similar device (including, without
limitation, telephones, lockers, toilets, scales, amusement devices and
machines for sale of beverages, foods, candy, cigarettes and other
goods), except for machines for the exclusive use of Tenant's employees,
and then only if the operation does not violate the lease of any other
tenant in the Building, provided that Tenant shall not be in violation
of this Rule due to a violation of the lease of another tenant in the
Building unless Tenant has been notified of the prohibition contained in
such other tenant's lease. In the event Tenant is in violation of such
other tenant's lease and Tenant has been notified of such violation,
Tenant shall promptly cease the activities causing the violation of such
other tenant's lease.
17. Bicycles and other vehicles are not permitted inside the Building or on
the walkways outside the Building, except in areas designated by
Landlord.
18. Landlord may from time to time adopt reasonable systems and procedures
for the security and safety of the Building, its occupants, entry, use
and contents. Tenant, its
B-2
<PAGE> 31
agents, employees, contractors, guests and invitees shall comply with
Landlord's systems and procedures.
19. Landlord shall have the right to prohibit the use of the name of the
Building or any other publicity by Tenant that in Landlord's sole
opinion may impair the reputation of the Building or its desirability.
Upon written notice from Landlord, Tenant shall refrain from and
discontinue such publicity immediately. Notwithstanding the foregoing to
the contrary, Tenant may use the name and address of the Building in its
normal business correspondence solely for the purpose of identifying the
location of Tenant's place of business.
20. Tenant shall not canvass, solicit or peddle in or about the Building or
the Property.
21. Neither Tenant nor its agents, employees, contractors, guests or
invitees shall smoke or permit smoking in the Common Areas, unless the
Common Areas have been declared a designated smoking area by Landlord,
nor shall the above parties allow smoke from the Premises to emanate
into the Common Areas or any other part of the Building. Landlord shall
have the right to designate the Building (including the Premises) as a
non-smoking building.
22. Landlord shall have the right to designate and approve standard window
coverings for the Premises and to establish rules to assure that the
Building presents a uniform exterior appearance. Tenant shall ensure, to
the extent reasonably practicable, that window coverings are closed on
windows in the Premises while they are exposed to the direct rays of the
sun.
23. Deliveries to and from the Premises shall be made only at the times, in
the areas and through the entrances and exits designated by Landlord.
Tenant shall not make deliveries to or from the Premises in a manner
that might unreasonably interfere with the use by any other tenant of
its premises or of the Common Areas, any pedestrian use, or any use
which is inconsistent with good business practice.
24. The work of cleaning personnel shall not be hindered by Tenant after
5:30 P.M., and cleaning work may be done at any time when the offices
are vacant. Windows, doors and fixtures may be cleaned at any time.
Tenant shall provide adequate waste and rubbish receptacles to prevent
unreasonable hardship to the cleaning service.
B-3
<PAGE> 32
EXHIBIT C
COMMENCEMENT LETTER
(EXAMPLE)
Date ______________________
Tenant ______________________
Address ______________________
______________________
______________________
Re: Commencement Letter with respect to that certain Lease dated as of
_______________, 1999, by and between EOP-MISSION STREET, L.L.C., A
DELAWARE LIMITED LIABILITY COMPANY, AS BENEFICIARY OF LAND TRUST DATED
OCTOBER 23, 1996 AND KNOWN AS SHELI Z. ROSENBERG TRUST NO. 201, as
Landlord, and QUOKKA SPORTS, INC., A DELAWARE CORPORATION, as Tenant,
for 46,460 square feet of Rentable Square Footage on the 17th, 18th and
19th floors of the Building located at 201 Mission Street, San
Francisco, California.
Dear __________________:
In accordance with the terms and conditions of the above referenced
Lease, Tenant accepts possession of the Premises and agrees:
1. The Premises A Commencement Date is ________________________.
2. The Premises B Commencement Date is ________________________.
3. The Premises C Commencement Date is ________________________.
4. The Termination Date of the Lease is _______________________.
Please acknowledge your acceptance of possession and agreement to the
terms set forth above by signing all 3 counterparts of this Commencement Letter
in the space provided and returning 2 fully executed counterparts to my
attention.
Sincerely,
________________________________
Property Manager
Agreed and Accepted:
Tenant: ______________________
By: ______________________
Name: ______________________
Title: ______________________
Date: ______________________
C-1
<PAGE> 33
EXHIBIT D
WORK LETTER
This Exhibit is attached to and made a part of the Lease dated as of
_____________, 1999, by and between EOP-MISSION STREET, L.L.C., A DELAWARE
LIMITED LIABILITY COMPANY, AS BENEFICIARY OF LAND TRUST DATED OCTOBER 23, 1996
AND KNOWN AS SHELI Z. ROSENBERG TRUST NO. 201 ("Landlord") and QUOKKA SPORTS,
INC., A DELAWARE CORPORATION ("Tenant") for space in the Building located at 201
Mission Street, San Francisco, California.
I. ALTERATIONS AND ALLOWANCE.
A. Tenant, following the delivery of the Premises by Landlord and
the full and final execution and delivery of this Lease and all
prepaid rental and security deposits required hereunder, shall
have the right to perform alterations and improvements in the
Premises (the "Initial Alterations"). Notwithstanding the
foregoing, Tenant and its contractors shall not have the right to
perform Initial Alterations in the Premises unless and until
Tenant has complied with all of the terms and conditions of
Article IX.C. of this Lease, including, without limitation,
approval by Landlord of the final plans for the Initial
Alterations and the contractors to be retained by Tenant to
perform such Initial Alterations. Tenant shall be responsible for
all elements of the design of Tenant's plans (including, without
limitation, compliance with law, functionality of design, the
structural integrity of the design, the configuration of the
premises and the placement of Tenant's furniture, appliances and
equipment), and Landlord's approval of Tenant's plans shall in no
event relieve Tenant of the responsibility for such design.
Landlord's approval of the contractors to perform the Initial
Alterations shall not be unreasonably withheld. The parties agree
that Landlord's approval of the general contractor to perform the
Initial Alterations shall not be considered to be unreasonably
withheld if any such general contractor (i) does not have trade
references reasonably acceptable to Landlord, (ii) does not
maintain insurance as required pursuant to the terms of this
Lease, (iii) does not have the ability to be bonded for the work
in an amount of no less than $500,000, (iv) does not provide
current financial statements reasonably acceptable to Landlord,
or (v) is not licensed as a contractor in the state/municipality
in which the Premises is located. Tenant acknowledges the
foregoing is not intended to be an exclusive list of the reasons
why Landlord may reasonably withhold its consent to a general
contractor. Notwithstanding the foregoing, the fire, life and
safety subcontractor for the Initial Alterations shall be
Diversified Fire Protection, Inc.
B. Provided Tenant is not in default, and further provided that
Tenant has first expended from its own funds not less than
$464,000 ("Tenant's Portion") toward the cost of preparing design
and construction documents and mechanical and electrical plans
for the Initial Alterations and for hard costs in connection with
the Initial Alterations and has provided Landlord with supporting
documentation showing payment of the Tenant's Portion as provided
herein, Landlord agrees to contribute the sum of $464,600.00 (the
"Allowance") toward the cost of performing the Initial
Alterations in preparation of Tenant's occupancy of the Premises.
The Allowance may only be used for the cost of preparing design
and construction documents and mechanical and electrical plans
for the Initial Alterations and for hard costs in connection with
the Initial Alterations. Notwithstanding the foregoing, Landlord
shall have no obligation to disburse the Allowance unless and
until Tenant has provided Landlord with receipted bills from
contractors and suppliers performing work and providing materials
for the Initial Alterations, and canceled checks from Tenant to
such contractors and suppliers showing Tenant's payment of the
entire Tenant's Portion to the contractors and suppliers
identified in such receipted bills for the amounts specified
therein. Tenant's failure to incur and apply the entire Tenant's
Portion toward the cost of the Initial Alterations or to timely
provide to Landlord the supporting documentation evidencing such
payment as required herein shall constitute an event of default
under this Lease.
Provided Tenant satisfies the requirements set forth above with
respect to the Tenant's Portion, the Allowance, less a 10%
retainage (which retainage shall be
D-1
<PAGE> 34
payable as part of the final draw), shall be paid to Tenant or,
at Landlord's option, to the order of the general contractor that
performs the Initial Alterations, in periodic disbursements
within thirty (30) days after receipt of the following
documentation: (i) an application for payment and sworn statement
of contractor substantially in the form of AIA Document G-702
covering all work for which disbursement is to be made to a date
specified therein; (ii) a certification from an AIA architect
substantially in the form of the Architect's Certificate for
Payment which is located on AIA Document G702, Application and
Certificate of Payment; (iii) Contractor's, subcontractor's and
material supplier's notarized waivers of liens which shall cover
all Initial Alterations for which disbursement is being requested
and all other statements and forms required for compliance with
the mechanics' lien laws of the State of California, together
with all such invoices, contracts, or other supporting data as
Landlord or Landlord's Mortgagee may reasonably require; (iv) a
cost breakdown for each trade or subcontractor performing the
Initial Alterations; (v) plans and specifications for the Initial
Alterations, together with a certificate from an AIA architect
that such plans and specifications comply in all material
respects with all laws affecting the Building, Property and
Premises; (vi) copies of all construction contracts for the
Initial Alterations, together with copies of all change orders,
if any; and (vii) a request to disburse from Tenant containing an
approval by Tenant of the work done and a good faith estimate of
the cost to complete the Initial Alterations. Upon completion of
the Initial Alterations, and prior to final disbursement of the
Allowance, Tenant shall furnish Landlord with: (1) general
contractor and architect's completion affidavits, (2) full and
final notarized waivers of lien, (3) receipted bills covering all
labor and materials expended and used, (4) as-built plans of the
Initial Alterations, and (5) the certification of Tenant and its
architect that the Initial Alterations have been installed in a
good and workmanlike manner in accordance with the approved
plans, and in accordance with applicable laws, codes and
ordinances. In no event shall Landlord be required to disburse
the Allowance more than one time per month. If the cost of the
Initial Alterations exceed the Allowance, Tenant shall be
entitled to the Allowance in accordance with the terms hereof,
but each individual disbursement of the Allowance shall be
disbursed in the proportion that the Allowance bears to the total
cost for the Initial Alterations, less the 10% retainage
referenced above. Notwithstanding anything herein to the
contrary, Landlord shall not be obligated to disburse any portion
of the Allowance during the continuance of an uncured default
under the Lease, and Landlord's obligation to disburse shall only
resume when and if such default is cured. Landlord shall be
entitled to deduct from the Allowance a construction management
fee for Landlord's oversight of the Initial Alterations in an
amount equal to 3% of the Allowance plus 1.5% of the total cost
of the Initial Alterations in excess of the Allowance.
C. In no event shall the Allowance be used for the purchase of
equipment, furniture or other items of personal property of
Tenant. In the event Tenant does not use the entire Allowance by
the date which is 6 months after the Premises C Commencement
Date, any unused amount shall accrue to the sole benefit of
Landlord, it being understood that Tenant shall not be entitled
to any credit, abatement or other concession in connection
therewith. Tenant shall be responsible for all applicable state
sales or use taxes, if any, payable in connection with the
Initial Alterations and/or Allowance.
D. Tenant agrees to accept the Premises in its "as-is" condition and
configuration, it being agreed that Landlord shall not be
required to perform any work or, except as provided above with
respect to the Allowance, incur any costs in connection with the
construction or demolition of any improvements in the Premises.
Notwithstanding the foregoing to the contrary, Landlord, at
Landlord's sole cost and expense, shall upgrade and bring into
compliance with all applicable Laws the currently existing
restrooms in the Premises and shall install and pay for the cost
of "total doors" in the lobbies in each of the 17th, 18th and
19th floors of the Premises.
E. This Exhibit shall not be deemed applicable to any additional
space added to the original Premises at any time or from time to
time, whether by any options under the Lease or otherwise, or to
any portion of the original Premises or any additions to the
Premises in the event of a renewal or extension of the original
Term of this Lease, whether by any options under the Lease or
otherwise, unless expressly so provided in the Lease or any
amendment or supplement to the Lease.
D-2
<PAGE> 35
IN WITNESS WHEREOF, Landlord and Tenant have entered into this Exhibit
as of the date first written above.
LANDLORD:
EOP-MISSION STREET, L.L.C., A DELAWARE LIMITED
LIABILITY COMPANY, AS BENEFICIARY OF LAND TRUST
DATED OCTOBER 23, 1996 AND KNOWN AS SHELI Z.
ROSENBERG TRUST NO. 201
By: EOP Operating Limited Partnership, a
Delaware limited partnership,
its sole member
By: Equity Office Properties Trust, a
Maryland real estate investment trust,
its managing general partner
By: __________________________
Name: ________________________
Title: _______________________
TENANT:
QUOKKA SPORTS, INC., A DELAWARE CORPORATION
By: ______________________________
Name: ______________________________
Title: ______________________________
By: ______________________________
Name: ______________________________
Title: ______________________________
D-3
<PAGE> 36
EXHIBIT E
SAMPLE LETTER OF CREDIT
------------------------
[Name of Financial Institution]
Irrevocable Standby
Letter of Credit
No. ______________________
Issuance Date:____________
Expiration Date:__________
Applicant:________________
Beneficiary
EOP-MISSION STREET, L.L.C., A
DELAWARE LIMITED LIABILITY
COMPANY, AS BENEFICIARY OF
LAND TRUST DATED OCTOBER 23, 1996
AND KNOWN AS SHELI Z. ROSENBERG TRUST NO. 201
c/o Equity Office Properties Trust
201 Mission Street, Suite 250
San Francisco, California 94105
Ladies/Gentlemen:
We hereby establish our Irrevocable Standby Letter of Credit in your
favor for the account of the above referenced Applicant in the amount of Seven
Hundred Thousand and 00/100 U.S. Dollars ($700,000.00) available for payment at
sight by your draft drawn on us when accompanied by the following documents:
1. An original copy of this Irrevocable Standby Letter of Credit.
2. Beneficiary's dated statement purportedly signed by one of its officers
reading: "This draw in the amount of ______________________ U.S. Dollars
($____________) under your Irrevocable Standby Letter of Credit No.
____________________ represents funds due and owing to us as a result of
the Applicant's commission of an event of default of one or more of the
terms of that certain lease by and between ______________________, as
landlord, and _____________, as tenant."
It is a condition of this Irrevocable Standby Letter of Credit that it
will be considered automatically renewed for a one year period upon the
expiration date set forth above and upon each anniversary of such date, unless
at least sixty (60) days prior to such expiration date or applicable anniversary
thereof, we notify you in writing by certified mail, return receipt requested,
that we elect not to so renew this Irrevocable Standby Letter of Credit. A copy
of any such notice shall also be sent to: Equity Office Properties Trust, 2
North Riverside Plaza, Suite 2200, Chicago, IL 60606, Attention: Vice
President-Corporate Operations. In addition, provided that you have not provided
us with written notice of Applicant's default under the above referenced lease
prior to the effective date of any reduction, the amount of this Irrevocable
Standby Letter of Credit shall automatically reduce in accordance with the
following schedule:
Effective Date of Reduction New Reduced Amount of Letter of Credit
June 1, 2000 $420,000.00
June 1, 2001 $140,000.00
60 days after the Termination Date $40,000.00
In addition to the foregoing, we understand and agree that you shall be entitled
to draw upon this Irrevocable Standby Letter of Credit in accordance with 1. and
2. above in the event that we elect not to renew this Irrevocable Standby Letter
of Credit and, in addition, you provide us with a dated statement proportedly
signed by one of Beneficiary's officers stating that the Applicant has failed to
provide you with an acceptable substitute irrevocable standby letter of credit
in
E-1
<PAGE> 37
accordance with the terms of the above referenced lease. We further acknowledge
and agree that: (a) upon receipt of the documentation required herein, we will
honor your draws against this Irrevocable Standby Letter of Credit without
inquiry into the accuracy of Beneficiary's signed statement and regardless of
whether Applicant disputes the content of such statement; (b) this Irrevocable
Standby Letter of Credit shall permit partial draws and, in the event you elect
to draw upon less than the full stated amount hereof, the stated amount of this
Irrevocable Standby Letter of Credit shall be automatically reduced by the
amount of such partial draw; and (c) you shall be entitled to assign your
interest in this Irrevocable Standby Letter of Credit from time to time without
our approval and without charge. In the event of an assignment, we reserve the
right to require reasonable evidence of such assignment as a condition to any
draw hereunder.
This Irrevocable Standby Letter of Credit is subject to the Uniform
Customs and Practice for Documentary Credits (1993 revision) ICC Publication No.
500.
We hereby engage with you to honor drafts and documents drawn under and
in compliance with the terms of this Irrevocable Standby Letter of Credit.
All communications to us with respect to this Irrevocable Standby Letter
of Credit must be addressed to our office located at
______________________________________________ to the attention of
__________________________________.
Very truly yours,
-----------------------------
[name]
-----------------------------
-----------------------------
[title}
E-2
<PAGE> 38
EXHIBIT F
PARKING AGREEMENT
This Exhibit is attached to and made a part of the Lease dated as of
_____________, 1999, by and between EOP-MISSION STREET, L.L.C., A DELAWARE
LIMITED LIABILITY COMPANY, AS BENEFICIARY OF LAND TRUST DATED OCTOBER 23, 1996
AND KNOWN AS SHELI Z. ROSENBERG TRUST NO. 201 ("Landlord") and QUOKKA SPORTS,
INC., A DELAWARE CORPORATION ("Tenant") for space in the Building located at 201
Mission Street, San Francisco, California.
1. The parties acknowledge that they have heretofore entered, or are
contemporaneously herewith entering into, a certain lease dated
_______________, 1999 (the "Lease") for the premises known as suite
numbers 1700, 1800 and 1900 (the "Premises") located in the building
known as 201 Mission Street (the "Building"). In the event of any
conflict between the Lease and this Parking Agreement, the latter shall
control.
2. Landlord hereby grants to Tenant and persons designated by Tenant a
license to use 4 non-priority parking spaces in the parking facility
("Parking Facility") servicing the Building. The term of such license
shall commence on the earlier of (i) the Premises A Commencement Date,
(ii) the Premises B Commencement Date, or (iii) the Premises C
Commencement Date, under the Lease and shall continue until the earlier
to occur of the Termination Date under the Lease, the sooner termination
of the Lease, or Tenant's abandonment of the Premises thereunder. During
the term of this license, Tenant shall pay Landlord the prevailing
monthly charges established from time to time for parking in the Parking
Facility, payable in advance, with Tenant's payment of monthly Base
Rent. The initial charge for such parking spaces is $_______ per
non-priority parking space, per month. No deductions from the monthly
charge shall be made for days on which the Parking Facility is not used
by Tenant. Tenant may, from time to time request additional parking
spaces, and if Landlord shall provide the same, such parking spaces
shall be provided and used on a month-to-month basis, and otherwise on
the foregoing terms and provisions, and at such prevailing monthly
parking charges as shall be established from time to time.
3. Tenant shall at all times comply with all applicable ordinances, rules,
regulations, codes, laws, statutes and requirements of all federal,
state, county and municipal governmental bodies or their subdivisions
respecting the use of the Parking Facility. Landlord reserves the right
to adopt, modify and enforce reasonable rules ("Rules") governing the
use of the Parking Facility from time to time including any key-card,
sticker or other identification or entrance system and hours of
operation. The rules set forth herein are currently in effect. Landlord
may refuse to permit any person who violates such rules to park in the
Parking Facility, and any violation of the rules shall subject the car
to removal from the Parking Facility.
4. Unless specified to the contrary above, the parking spaces hereunder
shall be provided on a non-designated basis. Tenant acknowledges that
Landlord has no liability for claims arising through acts or omissions
of any Operator (as hereinafter defined) of the Parking Facility, if
any. Landlord shall have no liability whatsoever for any damage to items
located in the Parking Facility, nor for any personal injuries or death
arising out of any matter relating to the Parking Facility, and in all
events, Tenant agrees to look first to its insurance carrier and to
require that Tenant's employees look first to their respective insurance
carriers for payment of any losses sustained in connection with any use
of the Parking Facility. Tenant hereby waives on behalf of its insurance
carriers all rights of subrogation against Landlord or Landlord's
agents. Landlord reserves the right to assign specific parking spaces,
and to reserve parking spaces for visitors, small cars, handicapped
persons and for other tenants, guests of tenants or other parties, which
assignment and reservation or spaces may be relocated as determined by
Landlord from time to time, and Tenant and persons designated by Tenant
hereunder shall not park in any location designated for such assigned or
reserved parking spaces. Tenant acknowledges that the Parking Facility
may be closed entirely or in part in order to make repairs or perform
maintenance services, or to alter, modify, re-stripe or renovate the
Parking Facility, or if required by casualty, strike, condemnation, act
of God, governmental law or requirement or other reason beyond the
operator's reasonable control.
5. If Tenant shall default under this Parking Agreement, the Landlord or
the Operator, as the case may be, shall have the right to remove from
the Parking Facility any vehicles
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hereunder which shall have been involved or shall have been owned or
driven by parties involved in causing such default, without liability
therefor whatsoever. In addition, if Tenant shall default under this
Parking Agreement, Landlord shall have the right to cancel this Parking
Agreement on 10 days' written notice, unless within such 10 day period,
Tenant cures such default. If Tenant defaults with respect to the same
term or condition under this Parking Agreement more than 3 times during
any 12 month period, and Landlord notifies Tenant thereof promptly after
each such default, the next default of such term or condition during the
succeeding 12 month period, shall, at Landlord's election, constitute an
incurable default. Such cancellation right shall be cumulative and in
addition to any other rights or remedies available to Landlord at law or
equity, or provided under the Lease (all of which rights and remedies
under the Lease are hereby incorporated herein, as though fully set
forth). Any default by Tenant under the Lease shall be a default under
this Parking Agreement, but any default under this Parking Agreement
shall not be a default under the Lease.
RULES
(i) Parking Facility hours shall be _____ a.m. to _____ p.m.,
however, Tenant shall have access to the Parking Facility on a
24 hour basis, 7 days a week. Tenant shall not store or permit
its employees to store any automobiles in the Parking Facility
without the prior written consent of the Landlord. Except for
emergency repairs, Tenant and its employees shall not perform
any work on any automobiles while located in the Parking
Facility, or on the Property. If it is necessary for Tenant or
its employees to leave an automobile in the Parking Facility
overnight, Tenant shall provide the Landlord with prior notice
thereof designating the license plate number and model of such
automobile.
(ii) Cars must be parked entirely within the stall lines painted on
the floor, and only small cars may be parked in areas reserved
for small cars.
(iii) All directional signs and arrows must be observed.
(iv) The speed limit shall be 5 miles per hour.
(v) Parking spaces reserved for handicapped persons must be used
only by vehicles properly designated.
(vi) Parking is prohibited in all areas not expressly designated for
parking, including without limitation:
(a) Areas not striped for parking
(b) aisles
(c) where "no parking" signs are posted
(d) ramps
(e) loading zones
(vii) Parking stickers, key cards or any other devices or forms of
identification or entry supplied by the Landlord or the
Operator, as the case may be, shall remain the property of the
Landlord or the Operator. Such device must be displayed as
requested and may not be mutilated in any manner. The serial
number of the parking identification device may not be
obliterated. Parking passes and devices are not transferable and
any pass or device in the possession of an unauthorized holder
will be void.
(viii) Monthly fees shall be payable in advance on or before the first
day of each month. Failure to do so will automatically cancel
parking privileges and a charge at the prevailing daily parking
rate will be due. No deductions or allowances from the monthly
rate will be made for days on which the Parking Facility is not
used by Tenant or its designees.
(ix) Parking Facility managers or attendants are not authorized to
make or allow any exceptions to these Rules.
(x) Every parker is required to park and lock his/her own car.
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(xi) Loss or theft of parking pass, identification, key cards or
other such devices must be reported to Landlord and to the
Parking Facility manager immediately. Any parking devices
reported lost or stolen found on any authorized car will be
confiscated and the illegal holder will be subject to
prosecution. Lost or stolen passes and devices found by Tenant
or its employees must be reported to the office of the garage
immediately.
(xii) Washing, waxing, cleaning or servicing of any vehicle by the
customer and/or his agents is prohibited. Parking spaces may be
used only for parking automobiles.
(xiii) By signing this Parking Agreement, Tenant agrees to acquaint all
persons to whom Tenant assigns a parking pass with these Rules.
6. Landlord may elect to provide parking cards or keys to control access to
the Parking Facility or surface parking areas, if any. In such event,
Landlord shall provide Tenant with one card or key for each parking
space that Tenant is entitled to hereunder, provided that Landlord shall
have the right to require Tenant or its employees to place a deposit on
such access cards or keys and to pay a fee for any lost or damaged cards
or keys.
7. Landlord hereby reserves the right to enter into a management agreement
or lease with an entity for the Parking Facility ("Operator"). In such
event, Tenant upon request of Landlord, shall enter into a parking
agreement with the Operator and pay the Operator (rather than the
Landlord) the monthly charge established hereunder, and Landlord shall
have no liability for claims arising through acts or omissions of the
Operator unless caused by Landlord's negligence or willful misconduct.
It is understood and agreed that the identity of the Operator may change
from time to time during the Term. In connection therewith, any parking
lease or agreement entered into between Tenant and an Operator shall be
freely assignable by such Operator or any successors thereto.
8. NO LIABILITY. TENANT ACKNOWLEDGES AND AGREES THAT, TO THE FULLEST EXTENT
PERMITTED BY LAW, LANDLORD SHALL NOT BE RESPONSIBLE FOR ANY LOSS OR
DAMAGE TO TENANT OR TENANT'S PROPERTY (INCLUDING, WITHOUT LIMITATIONS,
ANY LOSS OR DAMAGE TO TENANT'S AUTOMOBILE OR THE CONTENTS THEREOF DUE TO
THEFT, VANDALISM OR ACCIDENT) ARISING FROM OR RELATED TO TENANT'S USE OF
THE PARKING FACILITY OR EXERCISE OF ANY RIGHTS UNDER THIS PARKING
AGREEMENT, WHETHER OR NOT SUCH LOSS OR DAMAGE RESULTS FROM LANDLORD'S
ACTIVE NEGLIGENCE OR NEGLIGENT OMISSION. THE LIMITATION ON LANDLORD'S
LIABILITY UNDER THE PRECEDING SENTENCE SHALL NOT APPLY HOWEVER TO LOSS
OR DAMAGE ARISING DIRECTLY FROM LANDLORD'S WILLFUL MISCONDUCT.
9. Release of Liability. Without limiting the provisions of Paragraph 8
above, Tenant hereby voluntarily releases, discharges, waives and
relinquishes any and all actions or causes of action for personal injury
or property damage occurring to Tenant arising as a result of parking in
the Parking Facility, or any activities incidental thereto, wherever or
however the same may occur, and further agrees that Tenant will not
prosecute any claim for personal injury or property damage against
Landlord or any of its officers, agents, servants or employees for any
said causes of action. It is the intention of Tenant by this instrument,
to exempt and relieve Landlord from liability for personal injury or
property damage caused by negligence.
10. The provisions of Article XXI of the Lease are hereby incorporated by
reference as if fully recited.
Tenant acknowledges that Tenant has read the provisions of this Parking
Agreement, has been fully and completely advised of the potential dangers
incidental to parking in the Parking Facility and is fully aware of the legal
consequences of signing this instrument.
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Exhibit as of
the day and year first above written.
LANDLORD:
EOP-MISSION STREET, L.L.C., A DELAWARE LIMITED
LIABILITY COMPANY, AS BENEFICIARY OF LAND TRUST
DATED OCTOBER 23, 1996 AND KNOWN AS SHELI Z.
ROSENBERG TRUST NO. 201
By: EOP Operating Limited Partnership, a
Delaware limited partnership, its sole
member
By: Equity Office Properties Trust,
a Maryland real estate investment
trust, its managing general partner
By: __________________________
Name: __________________________
Title: __________________________
TENANT:
QUOKKA SPORTS, INC., A DELAWARE CORPORATION
By: ______________________________
Name: ______________________________
Title: ______________________________
By: ______________________________
Name: ______________________________
Title: ______________________________