California-San Francisco-330 Townsend Street Lease - 1301 Evans Street Associates LLC and Quokka Sports Inc.
1. PARTIES.
THIS LEASE (this "Lease") is made this 23rd day of April, 1999, between
1301 EVANS STREET ASSOCIATES, LLC, a California limited liability company
("Landlord"), and Quokka Sports, Inc., a Delaware incorporated Company
("Tenant").
2. PREMISES.
Landlord does hereby lease to Tenant, and Tenant does hereby lease from
Landlord, for the term and subject to the covenants and conditions hereinafter
set forth, to all of which Landlord and Tenant agree, those certain premises
("Premises") identified in the Basic Lease Information, and located in that
certain building owned by Landlord ("Building") located at 330 Townsend Street,
San Francisco, California. The Premises are as shown cross-hatched on Exhibit A
attached to this Lease and hereby made a part hereof. Tenant shall have the
right to use, in common with others, the entrances, lobbies, corridors, stairs
and elevators of the Building (the "Common Areas") for access to the Premises.
The exterior walls of the Building and any space in the Premises used for
shafts, stacks, pipes, conduits, ducts, electric or other utilities, or other
Building facilities, and the use thereof and access thereto through the
Premises for the purposes of operation, maintenance and repairs, are reserved
to Landlord.
(a) The rentable square footage of the Premises has been determined in
accordance with BOMA's Standard Method of Measuring Floor Area in Office
Buildings (ANSI/BOMA 2.65.1--1996), as modified by Landlord for uniform use in
the Building. The square footage figures contained in this Lease shall be final
and binding on the parties.
3. TERM.
(a) The term of this Lease ("Term") shall be for approximately twelve
(12) months or one (1) year. The Term shall commence on the later of (i) the
Scheduled Commencement Date, and (ii) if Landlord is constructing any
improvements in and to the Premises prior to the Scheduled Commencement Date in
accordance with the terms of this Lease, on such date as such improvements are
substantially complete (subject to punchlist items), and shall end on the
Expiration Date.
(b) If the Premises are substantially complete and ready for occupancy
by Tenant prior to the Scheduled Commencement Date, Tenant may, with the prior
approval of Landlord, accept delivery of the Premises and take early occupancy
thereof prior to the Scheduled Commencement Date and the Term of this Lease
shall thereupon commence effective as of the date of occupancy by Tenant of the
Premises.
(c) The "Commencement Date" shall be the actual date the Term of this
Lease commences in accordance with this Paragraph 3. Landlord and Tenant each
shall, promptly after the Commencement Date has been determined, execute and
deliver to the other a certificate which sets forth the Commencement Date of
this Lease, but the term of this Lease shall commence on the Commencement Date
and end on the Expiration Date whether or not such amendment is executed.
4. DELIVERY OF POSSESSION.
(a) In the event of the inability of Landlord to deliver possession of
the Premises at the time for the commencement of the Term for any reason
whatsoever, neither Landlord nor its agents shall be liable for any damage
caused thereby, nor shall this Lease thereby become void or voidable, nor shall
the Term be in any way extended, but in such event Tenant shall not be liable
for any rent until such time as Landlord can deliver possession.
(b) Landlord shall deliver possession of the Premises to Tenant, and
Tenant shall accept the same, in its "AS IS" condition. Tenant agrees that
Landlord has no obligation and has made no promise to alter, remodel, improve,
or repair the Premises or any part thereof or to repair, bring into compliance
with applicable laws, or improve any condition existing in the Premises as of
the Commencement Date. Tenant agrees that neither Landlord nor any of
Landlord's employees or agents has made any representation or warranty as to
the present of future suitability of the Premises for the conduct of Tenant's
business therein. Any improvements or personal property located in the Premises
are delivered without any representation or warranty from Landlord, either
express or implied, of any kind, including merchantability or suitability for a
particular purpose.
5. RENT.
(a) Tenant shall pay to Landlord the following amounts as rent for the
Premises:
(i) During the Term, Tenant shall pay Landlord, as base monthly
rent, the respective amounts of monthly rent specified in the Basic Lease
Information (the "Base Rent"). If the Commencement Date should occur on a day
other than the first day of a calendar month, or if the Expiration Date should
occur on a day other than the last day of a calendar month, then the Base Rent
for such fractional month shall be prorated upon a daily basis based upon a
thirty (30) day month. Base Rent is due and payable monthly, in advance, on the
first day or each calendar month, except that Base Rent for the first full
calendar month of the Term (the "First Month") shall be paid upon execution of
this Lease. If the Commencement Date occurs on a day other than the first day
of a calendar month, Base Rent for the period from the Commencement Date occurs
on a day other than the first day of a calendar month, Base Rent for the period
from the Commencement Date through the end of said calendar month shall be due
and payable on the Commencement Date, and the Base Rent payable upon execution
of this Lease shall be credited against the Base Rent due for the First Month
as of the first day of the First Month.
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(b) Rent shall be paid in lawful money of the United States of America,
in advance, free from all claims, demands, or set-offs against Landlord of any
kind or character whatsoever, at the office of Landlord in the Building or to
Landlord, c/o CAC Real Estate Management Co., Inc, 255 California Street, Suite
200, San Francisco, CA 94111, or at such other place as Landlord may designate
in writing.
6. USE.
(a) The Premises shall be used for general office purposes only, except
as limited by Paragraph 6(b), and, subject to the terms of this Lease, uses
incidental thereto, and shall be used for no other purpose without the prior
written consent of Landlord. The use of an existing kitchen facility located in
the Premises, subject to the terms of this Lease, is deemed an incidental use.
(b) Tenant shall in no way obstruct or interfere with the rights of other
tenants of the Building, or injure or annoy them, or use, or allow the Premises
to be used for any unlawful or objectionable purpose. Tenant may not use any
part or all of the Premises for any retail operations; a medical or dental
office; an office providing any type of psychological, or drug counseling or
employment placement or agency, office; telemarketing operations; consulate,
foreign mission or trade office; government or regulatory agency office;
educational institution with classrooms, or similar uses. Solicitations or
promotions by Tenant to other tenants in the Building are prohibited.
(c) Tenant shall not use the Premises or permit anything to be done in or
about the Premises or the Building which will in any way conflict with any
present or future law, statute, ordinance, code, rule regulation, requirement,
license, permit, certificate, judgment, decree, order or direction of any
present or future governmental or quasi-governmental authority, agency,
department, board, panel or court (singularly and collectively "Laws"). Tenant
shall, at its expense, promptly comply with all Laws (including without
limitation, the Federal Americans with Disabilities Act and any Hazardous
Materials Laws (as hereinafter defined), and with the requirements of any board
of fire insurance underwriters or other similar bodies now or hereafter
constituted, relating to or affecting the condition, use or occupancy of the
Premises. It is the intent of the parties to allocate to Tenant the cost of
compliance of any and all Laws, regardless of the existing condition of the
Premises, the cost of compliance or the foreseeability of the enactment or
application of the Laws to the Premises. Notwithstanding the foregoing, Tenant
shall not be required to make structural changes to the Premises unless they
arise or are required because of or in connection with Tenant's specific use of
the Premises, or the type of business conducted by Tenant in the Premises, or
Tenant's Alterations, or Tenant's acts or omissions. Tenant shall obtain and
maintain in effect during the Term all licenses and permits required for the
proper and lawful conduct of Tenant's business in the Premises, and shall at
all times comply with such licenses and permits.
(d) Supplementing the provisions of Paragraph 6(c) above, Tenant shall
not use the Premises or any portion of the Building in violation of any
federal, state, or local law, ordinance, or regulation relating to the
environment, health, or safety. Tenant shall not use, generate, manufacture or
store in or about the Premises or the Building or transport to or from the
Premises or the Building any explosives, radioactive materials, hazardous
materials, hazardous wastes, asbestos, PCB transformers, toxic substances or
related materials (collectively "Hazardous Materials"), other than the use and
storage in the Premises of small quantities of such substances when found in
commonly used household cleansers, office supplies and general office
equipment, and any such substances shall be used, kept, stored and disposed of
in strict accordance with all applicable federal, state and local laws now in
force or which may hereafter be in force relating to the protection of human
health or the environment from Hazardous Materials, including all requirements
pertaining to reporting, licensing, permitting, investigation and remediation
of emissions, discharges, storage, disposal or releases of Hazardous Materials
and all requirements pertaining to the protection of the health and safety of
employees or the public with respect to Hazardous Materials (collectively,
"Hazardous Materials Laws"). Hazardous Materials shall include, without
limitation, substances defined as "hazardous substances", "hazardous materials",
"toxic substances", "hazardous waste" or "waste" in the Comprehensive
Environmental Response. Compensation and Liability Act of 1980, as amended, 42
U.S.C. Sec. 9601 et seq.; the Hazardous Materials Transportation Act, 49 U.S.C.
Sec. 1801 et seq.; the Resource Conservation and Recovery Act, 42 U.S.C. Sec.
6901 et seq.; and those substances defined as "hazardous wastes" in Section
25117 of the California Health & Safety Code or as "hazardous substances" in
subdivision (f) of Section 25281, and Section 25316, of the California Health &
Safety Code; and any "waste" as defined in subdivision (d) of Section 13050 of
the Water Code; and in the regulations adopted and publications promulgated
pursuant to any of the aforementioned said laws; and in any revised or
successor code thereto; and any other chemical, material or substance at levels
for which exposure is prohibited, limited or regulated by any governmental
authority.
7. RULES AND REGULATIONS.
Tenant shall faithfully observe and comply with the Rules and Regulations
attached to this Lease as Exhibit "C" and made a part hereof, and such other
reasonable rules and regulations as Landlord may from time to time adopt for
the safety, care and cleanliness of the Building, the facilities thereof, or
the preservation of good order therein (collectively, the "Building Rules").
Landlord reserves the right from time to time in its sole discretion to make
all reasonable additions and modifications to the Building Rules. Any additions
and modifications to the Building Rules shall be binding on Tenant when
delivered to Tenant. Landlord shall not be liable to Tenant for violation of
any such Building Rules, or for the breach of any covenant or condition in any
lease, by any other tenant in the Building. In the event of any conflict
between this Lease and the Rules and Regulations, the terms of this Lease shall
govern. A waiver by Landlord of any rule or regulation for any other tenant
shall not constitute nor be deemed a waiver of the rule or regulation for this
Tenant.
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8. ASSIGNMENT AND SUBLETTING.
(a) Tenant will not assign, mortgage or hypothecate this Lease, or any
interest therein, or permit the use of the Premises by any person or persons
other than the Tenant, or sublet the Premises, or any part thereof, without the
prior written consent of Landlord. Consent to any such assignment or sublease
shall not operate as a waiver of the necessity for a consent to any subsequent
assignment or sublease, and the terms of such consent shall be binding upon any
person holding by, under or through Tenant.
(b) If Tenant desires to assign its interest in this Lease or to sublease
all or any part of the Premises, Tenant shall notify Landlord in writing at
least thirty (30) days in advance of the proposed transaction. This notice
shall be accompanied by: (i) a statement setting forth the name and business of
the proposed assignee or subtenant; (ii) a copy of the proposed form of
assignment or sublease (and any collateral agreements) setting forth all of the
material terms and the financial details of the sublease or assignment
(including, without limitation, the term, the rent and any security deposit,
"key money," and amounts payable for the use, rental or purchase of Tenant's
property); (iii) financial statements and other information requested by
Landlord relating to the proposed assignee or subtenant; and (iv) any other
information concerning the proposed assignment or sublease which Landlord may
reasonably request. If Tenant proposes to assign this Lease or sublet all or a
substantial part (in excess of sixty percent of the square footage) of the
Premises, Landlord shall have the right, in its sole and absolute discretion,
to terminate this Lease on written notice to Tenant within thirty (30) days
after receipt of Tenant's notice and the information described above or the
receipt of any additional information requested by Landlord. If Landlord elects
to terminate this Lease, this Lease shall terminate as of the effective date of
the proposed assignment or commencement of the term of the proposed sublease as
set forth in Tenant's notice, and Landlord shall have the right (but no
obligation) to enter into a direct lease with the proposed assignee or
subtenant. Tenant may withdraw its request for Landlord's consent at any time
prior to, but not after, Landlord delivers a written notice of termination.
(c) If Landlord elects not to terminate this Lease pursuant to Paragraph
9(b) above, or if a proposed sublease is for less than substantially all of the
Premises, Landlord shall not unreasonably withhold its consent to an assignment
or subletting. (For purposes of this Paragraph 9, an assignment shall not
include an assignment for security purposes, which shall only be permitted with
the prior consent of Landlord in its sole and absolute discretion). Tenant
agrees that the withholding of Landlord's consent shall be deemed reasonable if
all of the following conditions are not satisfied.
(i) The proposed assignee or subtenant shall use the Premises only
for the Permitted Use, and the business of the proposed assignee or subtenant
is consistent with the other uses and the standards of the Building, in
Landlord's reasonable judgment.
(ii) The proposed assignee or subtenant is reputable and has a net
worth not less than the net worth of Tenant on the execution of this Lease, has
a credit rating reasonably acceptable to Landlord, and otherwise has sufficient
financial capabilities to perform all of its obligations under this Lease or
the proposed sublease, in Landlord's reasonable judgment.
(iii) Neither the proposed assignee or subtenant nor any person or
entity that directly or indirectly controls, is controlled by, or is under
common control with, the proposed assignee or subtenant is a party (including,
without limitation, an existing occupant of any part of the Building) to whom
Landlord has, during the six (6) month period prior to the delivery of Tenant's
written notice, marketed space in the Building that would generally fit such
party's leasing requirements.
(iv) Tenant is not in default and has not committed acts or
omissions which with the running of time or the giving of notice or both would
constitute a default under this Lease.
(v) All of the other terms of this Paragraph 9 are complied with.
The conditions described above are not exclusive and shall not limit or prevent
Landlord from considering additional factors in determining if it should
reasonably withhold its consent.
(d) Each permitted assignee, transferee or subtenant, other than
Landlord, shall assume and be deemed to have assumed this Lease and shall be
liable jointly and severally with Tenant for the payment of the rent and for
the due performance or satisfaction of all of the provision, covenants,
conditions and agreements herein contained on Tenant's part to be performed or
satisfied. Regardless of Landlord's consent, no subletting or assignment shall
release or alter Tenant's obligation or primary liability to pay the rent and
perform all other obligations under this Lease. No permitted assignment or
sublease shall be binding on Landlord unless such assignee, subtenant or Tenant
shall deliver to Landlord a counterpart of such assignment or sublease which
contains a covenant of assumption by the assignee or subtenant, but the failure
or refusal of the assignee or subtenant to execute such instrument of
assumption shall not release or discharge the assignee or subtenant from its
liability as set forth above.
(e) If Tenant is a partnership, a transfer of the interest of any general
partner, a withdrawal of one or more general partner(s) from the partnership, or
the dissolution of the partnership, shall be deemed to be an assignment of this
Lease. If Tenant is currently a partnership (either general or limited), joint
venture, co-tenancy, joint tenancy or an individual, the conversion of the
Tenant entity or person into any type of entity which possesses the
characteristics of limited liability such as, by way of example only, a
corporation, a limited liability company, limited liability partnership, or
limited liability limited partnership, shall be deemed an assignment for
purposes of this Lease. If Tenant is a corporation or limited liability company,
unless Tenant is a public corporation, that is to say, a corporation whose
stock is regularly traded on a national stock exchange, or is regularly traded
in the over-the-counter market and quoted on
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NASDAQ, any merger, consolidation, or other reorganization of Tenant, or the
sale or other transfer of any of the voting stock or membership interests of
Tenant in one or more transactions that in the aggregate results in a transfer
of forty-five percent (45%) or more of the voting equity or membership
interest(s) in Tenant, or the sale or other transfer of substantially all of the
assets of Tenant, shall be deemed to be an assignment of this Lease.
(f) Any notice by Tenant to Landlord pursuant to this Paragraph 9 of a
proposed assignment or sublease shall be accompanied by a payment of $750 as a
non-refundable fee for the processing of Tenant's request for Landlord's
consent. In addition to said fee, Tenant shall reimburse Landlord for reasonable
attorneys' fees incurred by Landlord in connection with such review and the
preparation of documents in connection therewith. Tenant shall pay to Landlord
monthly on or before the first (1st) of each month one-half (1/2) of the rent or
other consideration received from such assignee(s) or subtenant(s) relating to
the leasehold estate of the Premises so assigned or sublet, and with respect to
the use of Tenant's property over and above the concurrent underlying rent
payable by Tenant to Landlord for that portion of the Premises being assigned or
sublet, and after deduction for the amortized portion of the reasonable expenses
actually paid by Tenant to unrelated third parties for brokerage commissions,
legal fees, or tenant improvements to the Premises. Tenant shall furnish
Landlord with a true signed copy of such assignment(s) or sublease(s) and any
supplementary agreements or amendments thereto, within five (5) days after their
respective execution.
9. SALE.
If Landlord sells or conveys the Building containing the Premises and the
successor-in-interest of Landlord assumes the terms, covenants and conditions of
this Lease, Landlord shall be released thereby from any liability arising after
the date of such transfer upon any of said terms, covenants and conditions, and
Tenant agrees to look solely to such successor-in-interest of Landlord.
10. MAINTENANCE AND REPAIRS.
(a) Landlord shall maintain and repair the public and common areas of the
Building, such as plazas, lobbies, stairs, corridors and restrooms, the roof and
exterior elements of the Building, and the elevator, mechanical and electrical
systems of the Building and keep such areas, elements and systems in good order
and condition, consistent with the standards of other comparable buildings in
the South of Market/China Basin district. Any damage in or to any such areas,
elements or systems caused by Tenant or any agent, officer, employee,
contractor, licensee or invitee of Tenant shall be repaired by Landlord at
Tenant's expense and Tenant shall pay to Landlord, upon billing by Landlord, as
additional rent, the cost of such repairs incurred by Landlord.
(b) Tenant shall, at all times during the Term of this Lease and at
Tenant's sole cost and expense, maintain and repair the Premises and every part
thereof and all equipment (including, without limitation, any air conditioning
units exclusively serving Tenant and located in the Premises ("Supplemental
HVAC") and/or any kitchen equipment), and any fixtures and improvements therein,
and keep all of the foregoing clean and in good order and operating condition,
ordinary wear and tear and damage thereto by fire or other casualty excepted.
All repairs and replacements made by or on behalf of Tenant shall be made and
performed at Tenant's cost and expense and at such time and in such manner as
Landlord may reasonably designate, by contractors or mechanics reasonably
approved by Landlord and so that the same shall be at least equal in quality,
value, character and utility to the original work or installation being repaired
or replaced. Tenant hereby waives all rights under California Civil Code Section
1941 and all rights to make repairs at the expense of Landlord or in lieu
thereof to vacate the Premises as provided by California Civil Code Section 1942
or any other law, statute or ordinance now or hereafter in effect. Tenant shall,
at the end of the Term of this Lease, surrender to Landlord the Premises and all
alterations, additions, fixtures and improvements therein or thereto in the same
condition as when received, ordinary wear and tear and damage thereto by fire or
other casualty excepted.
(c) Landlord reserves the right, at any time and from time to time, to
have Landlord's engineer estimate (on an average cost per month basis) the
additional electrical and other related operating costs attributable to Tenant's
operation of any Supplemental HVAC (the "Excess HVAC Cost"). Landlord shall
notify Tenant of such estimate, and provide Tenant with reasonable documentation
in support of the Excess HVAC Cost. Beginning on the first day of the calendar
month next following Tenant's receipt of Landlord's estimate of the Excess HVAC
Cost, Tenant shall pay to Landlord, as additional rent, the amount of the Excess
HVAC Cost.
11. SERVICES.
(a) Landlord agrees to furnish to the Premises at all times (subject to
interruption as provided in this Lease) electricity for lighting and the
operation of desktop office equipment of low electrical consumption and water as
may be required for the comfortable occupation of the Premises. Restroom
(toilet) facilities shall be provided by Landlord for use by Tenant and its
employees and licensees in the common area of the Building, and access thereto
may be limited by "key" access. In addition, subject to the Building Rules,
during the business hours and on the business days established thereunder by
Landlord, Landlord will supply heat as may be required for the comfortable
occupation of the Premises and janitorial services, limited to emptying and
removal of general office refuse, light vacuuming, as needed, and window washing
as determined by Landlord. Tenant shall pay (as additional rent) all costs
attributable to Tenant's use of Building services and utilities outside of the
Building's business hours promptly upon receipt of Landlord's invoice therefor.
Landlord, however, shall not be liable for failure to furnish any of the
foregoing when such failure is caused by accidents or conditions beyond the
control of Landlord, or by repairs, labor disturbances or labor disputes of any
character, whether resulting from or caused by acts of Landlord or otherwise,
nor shall Landlord be liable under any circumstances for loss of or injury to
property, however occurring, through or in connection
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with or incidental to the furnishing of any of the foregoing, nor shall any
such failure relieve Tenant from the duty to pay the full amount of rent herein
reserved, or constitute or be construed as a constructive or other eviction of
Tenant. Tenant hereby waives the provisions of California Civil Code Section
1932(1) or any other applicable existing or future law.
(b) Subject to Paragraph 34 hereof, Landlord shall provide passenger
elevator service (which may be unmanned) on a 24 hour per day, 365 days per year
basis, and freight elevator service as reasonably required by Tenant.
(c) Tenant shall not alter, modify, add to or disturb any
telecommunications wiring or cabling in the Premises or elsewhere in the
Building without Landlord's prior written consent. Landlord shall provide and
maintain, at no expense to Tenant (other than as an item of Operating Expenses),
telephone riser space in the Building core adequate to accommodate the
telecommunications needs of a general office tenant, and lines and conduit in
Building risers or pathways that provide a continuous connection of
intrabuilding telecommunications cabling from a telephone closet located on the
floor of the Premises ("Tenant's Telephone Closet") to the main telephone closet
located in the ground or basement level floors of the Building. Subject to such
reasonable rules and regulations as may be adopted by Landlord for uniform
application to all tenants in the Building. Landlord shall permit Tenant
reasonable access to Tenant's Telephone Closet and the Buildings intrabuilding
telecommunications cabling for the purposes permitted hereunder and agrees that
Tenant may install, remove and maintain in the Premises such voice and data
telecommunications equipment as is generally utilized by office tenants and, in
connection therewith, to connect the same to the distribution frames located in
Tenant's Telephone Closet. Tenant shall be liable to Landlord for any damage to
the telecommunications cabling and wiring in the Building due to the act
(negligent or otherwise) of Tenant or any employee, agent or contractor of
Tenant. Landlord makes no representation to Tenant regarding the condition,
security, availability or suitability for Tenant's purposes of existing
intrabuilding network cabling or any telecommunications services presently
located within the Building, and Tenant hereby waives any claim against Landlord
for any damages if Tenant's telecommunications services are in any way
interrupted, damaged or otherwise interfered with, except to the extent caused
by the gross negligence or willful or criminal misconduct of Landlord, its
agents or employees, provided that in no event shall such interruption, damage
or interference entitle Tenant to any consequential damages (including damages
for loss of business) or relieve Tenant of any of its obligations under this
Lease. Tenant shall maintain and repair all telecommunications cabling and
wiring within or exclusively serving the Premises. Landlord reserves the right
to limit the number of local exchange carriers and competitive alternative
telecommunications providers (collectively "TSPs") having access to the
Building's riser system and intrastructure, and Landlord reserves the right to
charge TSPs for the use of Landlord's telecommunications riser system and
infrastructure; provided, however, in all cases, Landlord will provide Building
and riser access to at least one TSP for dial tone telecommunications service to
tenants of the Building.
(d) Tenant's installation of telephone lines, cables, and other electronic
telecommunications services and equipment shall be subject to the terms and
conditions of Paragraph 13 of this Lease. Upon the expiration or earlier
termination of this Lease. Tenant shall remove, at its sole cost and expense,
all of Tenant's telecommunications lines and cabling designated by Landlord for
removal.
12. ALTERATIONS
(a) Tenant shall make no alterations, improvements or additions in or to
the Premises or any part thereof (individually and collectively, "Alterations")
without giving Landlord prior notice of the proposed Alterations and obtaining
Landlord's prior written consent thereto, which consent, except as hereafter
provided, shall not be unreasonably withheld or delayed; provided, however,
Landlord may withhold its consent in its sole discretion if any proposed
Alterations would adversely affect any of the structural elements of the
Building, the Building's electrical, plumbing, heating, telecommunications,
mechanical or life safety systems. Any and all work by Tenant shall be performed
only by contractors approved by Landlord and, where the prior consent of
Landlord is required, upon the approval by Landlord of fully detailed and
dimensioned plans and specifications pertaining to the work in question, to be
prepared and submitted by Tenant at its sole cost and expense. The contractor or
person selected to make such Alterations shall at all times be subject to
Landlord's control while in the Building. Upon substantial completion of any
Alterations, Tenant shall deliver to Landlord two (2) sets of "as built" plans
covering said Alterations and a copy of the final building permit for the work
signed off as approved by the appropriate building inspector.
(b) Tenant shall at its sole cost and expense obtain all necessary
approvals and permits pertaining to any Alterations. Tenant shall be solely
responsible for any additional alterations and improvements required by law to
be made elsewhere in or to the Premises, or in or to any portion of the Building
as a result of any Alterations to the Premises made by or for Tenant. All
Alterations (other than trade fixtures), including, but not limited to
carpeting, other floor coverings, built-in shelving, bookcases, paneling and
built-in security systems (excluding any leased system) made in or upon the
Premises either by or for Tenant and affixed to or forming a part of the
Premises, shall immediately upon installation become Landlord's property free
and clear of all liens and encumbrances. If requested by Landlord at the time
Landlord approves of the installation or construction of said alteration,
addition or improvement, Tenant shall remove or cause to be removed at its
expense, upon the expiration or any sooner termination of this Lease, any and
all Alterations made in or upon the Premises during the term of this Lease by or
for Tenant.
(c) Tenant shall keep the Premises and the Building free from any
mechanics' liens, vendors liens or any other liens arising out of any work
performed, materials furnished or obligations incurred by Tenant, and agrees to
defend, indemnify and hold harmless Landlord from and against any such lien or
claim or action thereon, together with costs of suit and reasonable attorney's
fees incurred by Landlord in connection with any such claim or action. Before
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commencing any work or alteration, addition or improvement to the Premises
which requires Landlord's consent, Tenant shall give Landlord at least ten (10)
business days' written notice of the proposed commencement of work (to afford
Landlord an opportunity to post appropriate notices of non-responsibility). In
the event that there shall be recorded against the Premises or the Building or
the property of which the Premises is a part any claim or lien arising out of
any such work performed, materials furnished or obligations incurred by Tenant
and such claim or lien shall not be removed, bonded over or discharged by
Tenant within ten (10) days of written notice from Landlord. Landlord shall
have the right but not the obligation to pay and discharge said lien by bond or
otherwise without regard to whether such lien shall be lawful or correct. Any
reasonable costs, including attorney's fees incurred by Landlord, shall be paid
by Tenant within ten (10) days after demand by Landlord.
(d) Before any Alterations or construction with respect thereto are
undertaken by or on behalf of Tenant, Tenant shall provide Landlord with
certificates of insurance evidencing the maintenance in effect by Tenant (or
Tenant shall require any contractor performing work on the Premises to carry
and maintain, at no expense to Landlord) of workers' compensation insurance as
required by applicable law, and Commercial General Liability insurance
(including, without limitation, Contractor's Liability coverage, Contractual
Liability coverage and Completed Operations coverage) written on an occurrence
basis with a minimum combined single limit of Two Million Dollars ($2,000,000)
and adding the "Owner(s) of the Building and its (or their) respective members,
principals, beneficiaries, partners, officers, directors, employees, agents
(and their respective members and principals) and mortgagee(s)" (and any other
designees of Landlord as the interest of such designees shall appear) as
additional insureds.
(e) Certain materials in the Building, including but not limited to the
sprayed-on fireproofing materials applied to certain structural members in the
Building, contain asbestos containing materials ("ACM"). In order to prevent
exposure to ACM, Landlord has established rules and regulations governing the
manner in which Alterations are to be undertaken. Tenant must comply with all
Building Rules established by Landlord. Tenant shall, at its sole cost and
expense, comply with any and all statutes, ordinances, codes or regulations, or
mandatory or voluntary controls or guidelines with respect to ACM, in the
performance of any Alterations. Such compliance, including the removal of all
or a portion of ACM, whether in the Premises (by Tenant) or elsewhere in the
Building (by Landlord), shall not, in any event, (i) entitle the Tenant to
damages, (ii) relieve Tenant of the obligation to pay any sums due hereunder,
(iii) constitute or be construed as a constructive or other eviction of Tenant,
or (iv) constitute or be construed as a breach of Tenant's quiet enjoyment.
(f) Tenant shall pay to Landlord a project administration fee equal to
five percent (5%) of the cost of any Alterations to compensate Landlord for the
administrative costs incurred and the Building services provided by Landlord in
the supervision and coordination of the work.
13. INDEMNIFICATION, EXCULPATION AND INSURANCE.
(a) Landlord shall not be liable to Tenant, and Tenant hereby waives
all claims against Landlord, for any damage to or loss or theft of any property
or for any bodily or personal injury, illness or death of any person in, on or
about the Premises or the Building arising at any time and from any cause
whatsoever, except to the extent caused by the gross negligence or willful
misconduct of Landlord. In no event shall Landlord be liable for any
consequential or punitive damages (including, but not limited to, damage or
injury to persons, property and the conduct of Tenant's business and any loss
of revenue therefrom).
(b) Tenant shall indemnify and defend Landlord against and hold Landlord
harmless from all claims, demands, liabilities, damages, losses, costs and
expenses, including reasonable attorneys' fees and disbursements, arising from
or related to any use or occupancy of the Premises, or any condition of the
Premises, or any default in the performance of Tenant's obligations, or any
damage to any property (including property of employees and invitees of Tenant)
or any bodily or personal injury, illness or death of any person (including
employees and invitees of Tenant) occurring in, on or about the Premises or any
part thereof arising at any time and from any cause whatsoever (except to the
extent caused by the gross negligence or willful misconduct of Landlord) or
occurring in, on or about any part of the Building other than the Premises when
such damage, bodily or personal injury, illness or death is caused by any act or
omission of Tenant or its agents, officers, employees, contractors, invitees or
licensees. This Paragraph 14(b) shall survive the termination of this Lease with
respect to any damage, bodily or personal injury, illness or death occurring
prior to such termination.
(c) Tenant shall, at all times during the Term of this Lease and at
Tenant's sole cost and expense, obtain and keep in force workers' compensation
insurance as required by law, including an employers' liability endorsement;
business interruption insurance in an amount equal to all rent payable under
this Lease for a period of twelve (12) months (at the then current rent
charged); and commercial general liability insurance, including contractual
liability (specifically covering this Lease), fire legal liability, and
premises operations, with a minimum combined single limit of Two Million
Dollars ($2,000,000) per occurrence for bodily or personal injury to, illness
of, or death of persons and damage to property occurring in, on or about the
Premises or the Building. Tenant shall, at Tenant's sole cost and expense, be
responsible for insuring Tenant's furniture, equipment, fixtures, computers,
office machines and personal property ("Tenant's Property").
(d) All insurance required under this Paragraph 14 and all renewals
thereof shall be issued by financially responsible and reputable insurance
companies, qualified to do business in the State of California and reasonably
acceptable to Landlord. Liability amounts in excess of Two Million Dollars
($2,000,000) may be carried under umbrella coverage policies. Each policy shall
have a deductible or deductibles, if any, which do not exceed Ten Thousand
Dollars ($10,000) per occurrence. Each policy shall expressly provide that the
policy shall not be canceled or altered without thirty (30) days' prior written
notice to Landlord and shall remain in effect notwithstanding any such
cancellation
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or alteration until such notice shall have been given to Landlord and such
period of thirty (30) days shall have expired. All liability insurance under
this Paragraph 14 shall name Landlord and any other parties designated by
Landlord as an additional insured, shall be primary and noncontributing with any
insurance which may be carried by Landlord, shall afford coverage for all claims
based on any act, omission, event or condition that occurred or arose (or the
onset of which occurred or arose) during the policy period, and shall expressly
provide that Landlord, although named as an insured, shall nevertheless be
entitled to recover under the policy for any loss, injury or damage to Landlord.
Upon the issuance thereof, Tenant shall deliver each such policy or a certified
copy and a certificate thereof to Landlord for retention by Landlord. If Tenant
fails to insure or fails to furnish to Landlord upon notice to do so any such
policy or certified copy and certificate thereof as required, Landlord shall
have the right from time to time to effect such insurance for the benefit of
Tenant or Landlord or both of them and all premiums paid by Landlord shall be
payable by Tenant as additional rent on demand.
(e) Tenant waives on behalf of all insurers under all policies of
property, liability and other insurance (excluding workers' compensation) now or
hereafter carried by Tenant insuring or covering the Premises, or any portion or
any contents thereof, or any operations therein, all rights of subrogation which
any insurer might otherwise, if at all, have to any claims of Tenant against
Landlord. Landlord waives on behalf of all insurers under all policies of
property, liability and other insurance (excluding workers' compensation) now or
hereafter carried by Landlord insuring or covering the Building or any portion
or any contents thereof, or any operations therein, all rights of subrogation
which any insurer might otherwise, if at all, have to any claims of Landlord
against Tenant. Tenant shall, prior to or immediately after the date of this
Lease, procure from each of the insurers under all policies of property,
liability and other insurance (excluding workers' compensation) now or hereafter
carried by Tenant insuring or covering the Premises, or any portion or any
contents thereof, or any operations therein, a waiver of all rights of
subrogation which the insurer might otherwise, if at all, have to any claims of
Tenant against Landlord as required by this Paragraph 14.
14. DESTRUCTION.
(a) In the event the Premises or any portion of the Building is damaged
by fire or other insured casualty, Landlord shall diligently repair the same to
the extent possible with the insurance proceeds received by Landlord, subject to
the provisions of this Paragraph hereinafter set forth, if such repairs can in
Landlord's opinion be completed within 45 days following the occurrence of the
casualty under the laws and regulations of federal, state and local governmental
authorities having jurisdiction thereof. In such event this Lease shall remain
in full force and effect except that if such damage is not the result of the
negligence or willful misconduct of Tenant or Tenant's agents, contractors,
employees, subtenants, licenses, invitees or visitors, an abatement of basic
rent shall be allowed Tenant for such part of the Premises as shall be rendered
unusable by Tenant in the conduct of its business during the time such part is
so unusable. Notwithstanding the foregoing, if such casualty shall occur during
the final twelve months of the term of this Lease, Landlord shall not be
obligated to repair such damage, but may instead elect to terminate this Lease
upon written notice given to Tenant within 30 days after the date of such fire
or other casualty, in which event this Lease shall terminate as of the
termination date specified in Landlord's notice. A total destruction of the
Building shall automatically terminate this Lease.
(b) If such repairs cannot in Landlord's opinion be made during the time
period and at a cost provided in subparagraph (a) above, Landlord may elect upon
notice to Tenant given 45 days after the date of such fire or other casualty to
(i) repair or restore such damage, in which event this Lease shall continue in
full force and effect, but Base Rent shall be partially abated as hereinabove in
this Paragraph provided, or (ii) terminate this Lease in which event this Lease
shall terminate as of the termination date specified in Landlord's notice.
Landlord's election shall be binding on Tenant.
(c) Landlord and Tenant acknowledge that this Lease constitutes the
entire agreement of the parties regarding events of damage or destruction, and
Tenant waives the provisions of California Civil Code Section 1932(2) and
1933(4) and any similar statute now or hereafter in force. No such casualty (nor
Landlord's subsequent restoration and repair work) shall constitute a
constructive eviction or give Tenant any rights to terminate this Lease.
(d) If the Premises are to be repaired under this Paragraph, Landlord
shall repair at its cost any injury or damage to the Building itself and the
initial improvements to the Premises made by Landlord. Tenant shall pay the cost
of repairing or replacing all other improvements in the premises and Tenant's
trade fixtures, furnishings, equipment and other personal property.
15. ENTRY.
Tenant will permit Landlord and its agents to enter into and upon the
Premises at all reasonable times for the purpose of inspecting the same, or for
the purpose of protecting owners' reversion, or to make alterations or additions
to the Premises or to any other portion of the Building, or for maintaining any
service provided by Landlord to Tenant hereunder, including engineering
maintenance, window cleaning and janitorial service, without any rebate of rent
to Tenant for any loss of occupancy or quiet enjoyment of the Premises, or
damage, injury or inconvenience thereby occasioned, and will permit Landlord at
any time to bring upon the Premises, for purposes of inspection or display,
prospective tenants thereof.
16. EVENTS OF DEFAULT.
The occurrence of any one or more of the following events (each, an "Event
of Default") shall constitute a breach of this Lease by Tenant: (i) if Tenant
shall default in its obligation to pay any rent or other payment(s) due
hereunder as and when due and payable; provided, however, with respect to the
first such delinquency in payment of
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rent during any twelve (12) month period, such delinquency in payment of rent
shall not, in and of itself, be deemed to be an Event of Default until the
failure of payment continues for a period of five (5) days after written notice
thereof from Landlord to Tenant; or (ii) if Tenant shall fail to perform or
observe any other term hereof (except as otherwise provided in this Paragraph)
or of the Building Rules described in Paragraph 8 hereof to be performed or
observed by Tenant, such failure shall continue for more than ten (10) days
after notice thereof from Landlord, and Tenant shall not within such period
commence with due diligence and dispatch the curing of such default, or, having
so commenced, thereafter shall fail or neglect to prosecute or complete with due
diligence the curing of such default; or (iii) any assignment or subletting in
violation of the terms of this Lease; or (iv) if Tenant shall make a general
assignment for the benefit of creditors, or shall admit in writing its inability
to pay its debts as they become due or shall file a petition in bankruptcy, or
shall be adjudicated as bankrupt or insolvent or shall file a petition seeking
any reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any present or future statute, law or
regulation, or shall seek or consent to or acquiesce in the appointment of any
trustee, receiver or liquidator of Tenant or any material part of its property;
or (v) the taking of any action leading to, or the actual dissolution or
liquidation of Tenant, if Tenant is other than an individual; or (vi) if within
sixty (60) days after the commencement of any proceeding against Tenant seeking
any reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any present or future statute, law or
regulation, such proceeding shall not have been dismissed, or if within ninety
(90) days after the appointment without the consent or acquiescence of Tenant,
of any trustee, receiver or liquidator of Tenant or of any material part of its
properties, such appointment shall not have been vacated; or (vii) if this Lease
or any estate of Tenant hereunder shall be levied upon under any attachment or
execution and such attachment or execution is not vacated within thirty (30)
days.
17. TERMINATION UPON DEFAULT.
In any notice given pursuant to any one or more Events of Default, Landlord
in its sole discretion may elect to declare a forfeiture of this Lease as
provided in Section 1161 of the California Code of Civil Procedure, and provided
that Landlord's notice states such an election, Tenant's right to possession
shall terminate and this Lease shall terminate, unless on or before the date
specified in such notice all arrears of rent and all other sums payable by
Tenant under this Lease, and all costs and expenses incurred by or on behalf of
Landlord hereunder, including attorneys' fees, incurred in connection with such
default, shall have been paid by Tenant and all other breaches of this Lease by
Tenant at the time existing shall have been fully remedied to the satisfaction
of Landlord. Upon such termination, Landlord may recover from Tenant (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 proves could reasonably
have been 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 proves could be reasonably avoided; and (d)
any other amount necessary to compensate Landlord for all the detriment
proximately caused by Tenant's failure to perform its obligations under this
Lease or which in the ordinary course of things would be likely to result
therefrom. The "worth at the time of award" of the amount referred to in clauses
(a) and (b) above is computed by allowing interest at the discount rate of the
Federal Reserve Bank of San Francisco plus 5% per annum at date of termination,
but in no event in excess of the maximum rate of interest permitted by law. The
worth at the time of award of the amount referred to in clause (c) above is
computed by discounting such amount at the discount rate of the Federal Reserve
Bank of San Francisco at the time of award plus 1%. For the purpose of
determining unpaid rent under clause (c) above, the monthly rent reserved in
this Lease shall be deemed to be the sum of the Base Rent and the amounts last
payable by Tenant as reimbursement of expenses pursuant to Paragraphs 5(a)(ii)
and (iii) hereof for the calendar year in which Landlord terminated this Lease
provided herein.
18. CONTINUATION AFTER DEFAULT.
Even though Tenant has breached this Lease and/or abandoned the Premises,
this Lease shall continue in effect for so long as Landlord does not terminate
Tenant's right to possession as provided in Paragraph 18 hereof, and Landlord
may enforce all its rights and remedies under this Lease, including the right to
recover rent as it becomes due under this Lease. In such event, Landlord may
exercise all of the rights and remedies of a landlord under Section 1951.4 of
the California Civil Code (which provides that a landlord may continue a lease
in effect after a tenant's breach and abandonment and recover rent as it becomes
due, if the tenant has the right to sublet or assign, subject only to reasonable
limitations), or any successor statute. Acts of maintenance or preservation or
efforts to relet the Premises or the appointment of a receiver upon initiative
of Landlord to protect Landlord's interest under this Lease shall not constitute
a termination of Tenant's right to possession.
19. OTHER RELIEF.
In the event of re-entry or taking possession of the Premises, Landlord
shall have the right but not the obligation to remove all or any part of the
trade fixtures, furnishings, equipment and personal property located in the
Premises and to place the same in storage at a public warehouse at the expense
and risk of Tenant or to sell such property in accordance with applicable law.
The remedies provided for in this Lease are in addition to any other remedies
available to Landlord at law or in equity, by statute or otherwise.
20. LANDLORD'S RIGHT TO CURE DEFAULT.
All agreements and provisions to be performed by Tenant under any of the
terms of this Lease shall be at its sole cost and expense and without abatement
of rent. If Tenant shall fail to pay any sum of money, other than rent, required
to be paid by it hereunder or shall fail to perform any other act on its part to
be performed hereunder and such failure shall not be cured, Landlord may, but
shall not be obligated to so do, and without waiving or releasing Tenant from
any obligations of Tenant, make any such payment or perform any such other act
on Tenant's part to be made or
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performed as provided in this Lease. All sums so paid by Landlord and all
necessary incidental costs shall be deemed additional rent hereunder and shall
be payable to Landlord on demand.
21. ATTORNEY'S FEES.
If as a result of any breach or default on the part of Tenant under this
Lease Landlord uses the services of an attorney in order to secure compliance
with this Lease, Tenant shall reimburse Landlord upon demand as additional rent
for any and all attorneys' fees and expenses incurred by Landlord, whether or
not formal legal proceedings are instituted. Should either party bring an action
against the other party, by reason of or alleging the failure of the other party
to comply with any or all of its obligations hereunder, whether for declaratory
or other relief, then the party which prevails in such action shall be entitled
to its reasonable attorneys' fees and expenses related to such action, in
addition to all other recovery or relief. A party shall be deemed to have
prevailed in any such action (without limiting the generality or foregoing) if
such action is dismissed upon the payment by the other party of the sums
allegedly due or the performance of obligations allegedly not complied with, or
if such party obtains substantially the relief sought by it in the actions,
irrespective of whether such action is prosecuted to judgment.
22. NO WAIVER.
Landlord's failure to take advantage of any default or breach of covenant
on the part of Tenant shall not be, or be construed as a waiver thereof, nor
shall any custom or practice which may grow up between the parties in the course
of administering this instrument be construed to waive or to lessen the right of
Landlord to insist upon the performance by Tenant of any term, covenant or
condition hereof, or to exercise any rights given him on account of any such
default. A waiver of a particular breach or default shall not be deemed to be a
waiver of the same or any other subsequent breach or default. The acceptance of
rent hereunder shall not be, nor be construed to be a waiver of any breach of
any term, covenant or condition of this Lease.
23. NOTICES.
All approvals, consents and other notices given by Landlord or Tenant
under this Lease shall be property given only if made in writing and either
deposited in the United States mail, postage prepaid, certified with return
receipt requested or delivered by hand (which may be through a messenger or
recognized delivery, courier or air express service) and addressed to Landlord
at the address of Landlord specified in the Basic Lease Information or at such
other place as Landlord may from time to time designate in a written notice to
Tenant and addressed to Tenant at the address of Tenant specified in the Base
Lease Information and, after the Commencement Date, at the Premises together
with a copy to such other address as Tenant may from time to time designate in a
written notice to Landlord. Such approvals, consents and other notices shall be
effective on the date of receipt (evidenced by the certified mail receipt), if
mailed, or on the date of hand delivery, if hand delivered. If any such
approval, consent or other notice is not received or cannot be delivered due to
change in the address of the receiving party of which notice was not previously
given to the sending party or due to a refusal to accept by the receiving party,
such request, approval, consent, notice or other communication shall be
effective on the date delivery is attempted. Any approval, consent or other
notice under this Lease may be given on behalf of a party by the attorney for
such party. Tenant hereby appoints as its agent to receive the service of all
default notices and notice of commencement of unlawful detainer proceedings the
person in charge of or apparently in charge of or occupying the Premises at the
time, and, if there is not such person, then such service may be made by
attaching the same on the main entrance of the Premises and such service shall
be effective for all purposes under this Lease.
24. EMINENT DOMAIN.
If all or any part of the Premises shall be taken as a result of the
exercise of the power of eminent domain or agreement in lieu thereof, this Lease
shall terminate as to the part so taken as of the date of taking, and, in the
case of a partial taking, Landlord shall have the right to terminate this Lease
as to the balance of the Premises by giving written notice to Tenant within
sixty (60) days after such date. Tenant waives the provisions of California Code
of Civil Procedure Section 1265.130 relating to the lease termination from a
partial taking. In the event of any taking, Landlord shall be entitled to any
and all compensation, damages, income, rent, awards, or interest therein which
may be paid or made in connection therewith, and Tenant shall have no claim
against Landlord for the value of any unexpired Term of this Lease or otherwise.
In the event of a partial taking of the Premises which does not result in a
termination of this Lease, the Base Rent thereafter to be paid shall be
equitably reduced. If all or any part of the Building shall be taken as a result
of the exercise of the power of eminent domain, Landlord shall have the right to
terminate this Lease by giving written notice to Tenant within sixty (60) days
after the date of taking, provided Landlord terminates substantially all of the
leases of other Building occupants similarly situated to Tenant.
25. LATE CHARGE.
Tenant acknowledges that late payment of rent and other sums due under
this Lease would cause Landlord to incur costs not contemplated by this Lease,
the exact amount of which would be difficult to ascertain. These costs include,
but are not limited to processing and accounting charges and increased interest
expenses on Landlord's funds. Accordingly, if any installment of rent or any
other sums due from Tenant are not received when due, Tenant shall pay to
Landlord a late charge equal to ten percent (10%) of the overdue amount. In
addition, if any rent or other delinquent, the unpaid amount shall bear interest
from the due date until paid at the publicly announced prime rate or reference
rate charged on such due date by the San Francisco Main Office of Bank of
America, N.T.& S.A. (or any successor bank) for short term, unsecured loans to
its most credit worthy borrowers, plus five percent (5%) per annum but in no
event shall such rate of interest exceed the maximum rate permitted by law. In
addition to the foregoing, in
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the event any payment of rent or other sums due Landlord from by Tenant is made
by the tender of a check, and said check is dishonored by Tenant's bank for
insufficient funds or for any other reason. Tenant shall pay Landlord a $50.00
returned check fee (the "NSF charge") to compensate Landlord for the costs
associated with processing such dishonored check. The parties agree that the
foregoing late charges and NSF charge represent a fair and reasonable estimate
of the costs Landlord will incur because of said late or dishonored payment.
Acceptance of said charges by Landlord shall not constitute a waiver of Tenant's
default for the over due amount, nor prevent Landlord from exercising the other
rights and remedies granted Landlord under this Lease.
26. SECURITY DEPOSIT.
Upon signing this Lease, Tenant shall pay to Landlord the amount of the
Security Deposit specified in the Basic Lease Information.
27. RELOCATION.
Landlord shall have the right, from time to time during Term of this Lease,
to relocate Tenant from the Premises to another location in the Building,
provided (i) Landlord shall give Tenant at least three (3) months' notice prior
to the effective date of such relocation, (ii) the new Premises shall be
substantially equivalent in size to the existing Premises, (iii) there shall be
no increase in rent due to such relocation, and (iv) Landlord shall pay all
reasonable costs of physically relocating Tenant to the new Premises, including
reimbursement of moving costs and communication line relocation, and
installation of leasehold improvements of substantially the same condition and
appearance as of the date of relocation. If Tenant is relocated during the Term
of this Lease, Landlord and Tenant agree to execute an amendment to this Lease
reflecting the relocation of the Premises.
28. ESTOPPEL CERTIFICATE.
Within ten (10) days after notice from Landlord, Tenant shall execute and
deliver to Landlord, in recordable form, a certificate stating (i) that this
Lease is unmodified and in full force and effect (or, if there have been
modifications, that this Lease is in full force and effect, as modified, and
stating the date and nature of each modification), (ii) the date, if any, to
which rental and other sums payable hereunder have been paid, (iii) that no
notice has been received by Tenant or any default which has not been cured,
except as to defaults specified in said certificate and (iv) such other matters
as may be reasonably requested by Landlord. Failure to deliver such certificate
within such ten (10) day period shall be conclusive upon Tenant for the benefit
of Landlord and any successor to Landlord, that this Lease is in full force and
effect and has not been modified except as may be represented by Landlord.
29. SURRENDER.
Tenant shall surrender the Premises at the termination of the tenancy
herein created broom clean, and in the same condition as herein agreed they have
been received, reasonable use and wear thereof and damage by the act of God or
by the elements excepted. The voluntary or other surrender of this Lease by
Tenant, or a mutual cancellation thereof, shall not work a merger and shall at
the option of Landlord, terminate all of any existing subleases or subtenancies,
or may, at the option of Landlord, operate as an assignment to it of any or all
such subleases or subtenancies. At the expiration or sooner termination of this
Lease, Tenant shall remove or cause to be removed at its sole expense all of
Tenant's personal property, furniture and equipment, including telephone and
data processing lines, and all Alterations required by Landlord in accordance
with Paragraph 13 hereof. Tenant shall repair at its expense all damage to the
Premises and the Building caused by the removal of any of the items provided
herein. Tenant's obligations under this Paragraph shall survive the termination
of this Lease.
30. HOLDING OVER.
If, without objection by Landlord, Tenant holds possession of the Premises
after expiration of the Term of this Lease, Tenant shall become a tenant from
month to month upon the terms herein specified but at a Base Rent equal to two
hundred percent (200%) of the Base Rent in effect at the expiration of the Term
of this Lease, payable in advance on or before the first day of each month. Such
month to month tenancy may be terminated by either Landlord or Tenant by giving
thirty (30) days' written notice of termination to the other at any time. If
Tenant fails to surrender the Premises upon the expiration or termination of
this Lease except as hereinabove provided, Tenant hereby indemnifies and agrees
to hold Landlord harmless from all costs, loss, expense or liability, including
without limitation, costs, real estate brokers claims and attorneys' fees,
arising out of or in connection with any delay by Tenant in surrendering and
vacating the Premises, including, without limitation, any claims made by any
succeeding tenant based on any delay and any liabilities arising out of or in
connection with these claims. Nothing in this Paragraph 31 shall be deemed to
permit Tenant to retain possession of the Premises after the expiration or
sooner termination of the Lease Term.
31. FLOOR LOAD, NOISE, LIGHT AND AIR.
(a) Tenant shall not place a load upon any floor of the Premises which
exceeds the floor load per square foot which such floor was designed to carry.
Landlord reserves the right to prescribe the weight and position of all safes,
file and library systems and other heavy installations which Tenant wishes to
place in the Premises so as to properly distribute the weight thereof.
(b) Business machines and mechanical equipment belonging to Tenant which
cause noise and/or vibration that may be transmitted to the structure of the
Building or to any leased space to such a degree as to be objectionable to
Landlord or to any tenants in the Building shall be placed and maintained by
Tenant, at Tenant's expense, in settings of cork, rubber or spring-type noise
and/or vibration eliminators sufficient to eliminate vibration and/or noise.
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(c) Any diminution or shutting off of light, air, or view by any
materials, improvements or structures that may be placed on the exterior of the
Building or erected on lands adjacent to the Building shall not affect this
Lease or impose any liability on Landlord.
32. SUBORDINATION.
This Lease shall be subordinate to any ground lease, mortgage, deed of
trust, or any other hypothecation for security now or later placed upon the
Building and to any advances made on the security of it or Landlord's interest
in it, and to all renewals, modifications, consolidations, replacements, and
extensions of it. However, if any mortgagee, trustee, or ground lessor elects
to have this Lease prior to the lien of its mortgage or deed of trust or prior
to its ground lease, and gives notice of that to Tenant, this Lease shall be
deemed prior to the Mortgage, deed of trust or ground lease, whether this Lease
is dated prior or subsequent to the date of the mortgage, deed of trust, or
ground lease, or the date of recording of it. In the event any mortgage or deed
of trust to which this Lease is subordinate is foreclosed or a deed in lieu of
foreclosure is given to the mortgagee or beneficiary, Tenant shall attorn to
the purchaser at the foreclosure sale or to the grantee under the deed in lieu
of foreclosure. In the event of termination of any ground lease to which this
Lease is subordinate, Tenant shall attorn to the ground lessor. Tenant agrees
to execute any documents in form and substance reasonably acceptable to Tenant,
required to effectuate the subordination, to make this Lease prior to the lien
of any mortgage or deed of trust or ground lease, or to evidence the
attornment.
33. INABILITY TO PERFORM
Landlord shall not be in default hereunder nor shall Landlord be liable to
Tenant for any loss or damages if Landlord is unable to fulfill any of its
obligations, or is delayed in doing so, if the inability or delay is caused by
reason of accidents, strike, labor troubles, acts of God, or any other cause,
whether similar or dissimilar, which is beyond the reasonable control of
Landlord.
34. FUTURE CONSTRUCTION WORK
Landlord reserves the right (upon thirty days' prior notice to, but
otherwise without the prior consent of, Tenant) to make additions to, and/or
expand the size of, the Building, including, without limitation, adding floors
to, and/or adding floor area to one or more existing floors of the Building, and
to undertake major structural and seismic improvement projects in the Building.
Such construction activity may result in columns, beams and other structural
components being placed in the Premises to accommodate the construction work
and/or the permanent additions and/or expansions to be constructed. Any such
construction activity is entirely discretionary with Landlord, and Tenant agrees
that no representation, express or implied, with respect to the future condition
of the Building or any improvements thereto have been made to Tenant by Landlord
or any Landlord representative. Tenant hereby waives any and all rights or
claims of any kind for rent offsets or of constructive eviction, nuisance or
interference with enjoyment which may arise in connection with, or result from,
such construction activities; provided, however, Landlord shall use commercially
reasonable efforts to minimize disruption of Tenant's business caused by such
construction activities. Notwithstanding anything in this Lease to the contrary,
if Landlord determines that any of the foregoing construction activity or
activities will result in a material interference with or disruption to Tenant's
business in the Premises, Landlord, upon thirty (30) days' prior written notice
to Tenant that Landlord intends to commence such construction activity, may
terminate this Lease, without liability to Tenant. If this Lease is not
terminated as hereinabove provided, and the Premises are altered by reason of
such improvements, Landlord agrees to remeasure the Premises following the
completion of the improvements and to adjust Tenant's rental obligations
hereunder based on the new square footage of the Premises, as determined by
Landlord.
Lessee expressly acknowledges that Lessor intends to commence major seismic
repair work in and around the Premises and that Lessee's failure to cooperate
and Lessor in accordance with the terms of this Section, will result in delays
in that work and substantial damages for which Lessee would be responsible.
35. MISCELLANEOUS.
(a) The words "Landlord" and "Tenant" as used herein shall include the
plural as well as the singular. Words used in masculine gender include the
feminine and neuter. If there be more than one Tenant, the obligations
hereunder imposed on Tenant shall be joint and several. Subject to the
provisions hereof relating to assignment and subletting, this Lease is intended
to and does bind the heirs, executors, administrators, successors and assigns
of any and all of the parties hereto. Time is of the essence of this Lease.
(b) If Tenant is a corporation or limited liability company, Tenant and
each person executing this Lease on behalf of Tenant represents and warrants to
Landlord that (i) Tenant is duly incorporated or formed, as the case may be and
validly existing under the laws of its state of incorporation or formation,
(ii) Tenant is qualified to do business in California, (iii) Tenant has the
full right, power and authority to enter into this Lease and to perform all of
Tenant's obligations hereunder, and (iv) each person signing this Lease on
behalf of the corporation or company is duly and validly authorized to do so.
If Tenant is a partnership (whether a general or limited partnership), each
person executing this Lease on behalf of Tenant represents and warrants to
Landlord that (A) he/she is a general partner of Tenant (B) he/she is duly
authorized to execute and deliver this Lease on behalf of Tenant, (C) this
Lease is binding on Tenant (and each general partner of Tenant) in accordance
with its terms, and (D) each general partner of Tenant is personally liable for
the obligations of Tenant under this Lease.
(c) There are no oral agreements between Landlord and Tenant affecting
this Lease, and this Lease supersedes and cancels any and all previous
negotiations, arrangements, brochures, agreements and understandings, if any,
between Landlord and Tenant or displayed by Landlord to Tenant with respect to
the subject matter of this Lease
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or the Building. There are no representations between Landlord and Tenant other
than those contained in this Lease and all reliance with respect to any
representations is based solely upon the Terms of this Lease.
(d) Tenant shall not use the name of the Building for any purpose other
than as an address of the business to be conducted by Tenant in the Premises.
Landlord reserves the right to change the name of the Building at any time in
its sole discretion by written notice to Tenant and Landlord shall not be
liable to Tenant for any loss, cost or expense on account of any such change of
name.
(e) Any provision of this Lease which shall be held invalid, void or
illegal shall in no way affect, impair or invalidate any of the other provisions
hereof and such other provisions shall remain in full force and effect.
(f) Tenant hereby waives trial by jury in any action, proceeding or
counterclaim brought by either of the parties hereto on any matters whatsoever
arising out of or in anyway connected with this Lease.
(g) This Lease shall be governed by the laws of the State of California
applicable to transactions to be performed wholly therein.
36. BROKER.
Tenant represents and warrants to Landlord that Tenant has had no
dealings with any broker, finder, or similar person who is or might be entitled
to a commission or other fee in connection with the execution of this Lease,
except for Landlord's Broker and Tenant's Broker. Landlord shall pay the
commission due Landlord's Broker and Tenant's Broker pursuant to a separate
agreement between Landlord and Landlord's Broker. Landlord and Tenant shall
each indemnify, defend and hold the other harmless from and against any and all
claims and damages and for any and all costs and expenses (including reasonable
attorneys' fees and costs) resulting from claims that may be asserted against
the other party by any broker, agent or finder not disclosed herein. It is
hereby disclosed, and all parties agree and accept, that Peter Sullivan
Associates, Inc. is acting as both Landlord's broker and a principal in this
transaction.
37. NO OFFER.
No contractual or other rights shall exist between Landlord and Tenant
with respect to the Premises until both have executed and delivered this Lease.
The submission of this Lease to Tenant shall be for examination purposes only,
and does not and shall not constitute a reservation of or any option for the
Tenant to lease, or otherwise create any interest by Tenant in the Premises or
any other Premises situated in the Building. Execution of this Lease by Tenant
and return to Landlord shall not be binding upon Landlord, notwithstanding any
time interval, until Landlord has in fact executed and delivered this Lease to
Tenant.
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the
date first above written.
LANDLORD: TENANT:
--------- -------
1301 EVANS STREET ASSOCIATES, LLC, QUOKKA SPORTS, INC.
a California limited liability company an Incorporated company
By: Peter Sullivan Associates, Inc., By: [Signature Illegible]
General Manager --------------------------
By: /s/ PETER SULLIVAN Its: EVP & CFO
----------------------------- -------------------------
Peter Sullivan
President Date: 4/30/99
------------------------
Date: 5/3/97
--------------------------- By:
--------------------------
Its:
-------------------------
Date:
------------------------
12
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EXHIBIT A
FLOOR PLAN
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EXHIBIT A
[MAP OF FLOOR PLAN]
<PAGE> 15
EXHIBIT B
RULES AND REGULATIONS OF THE
330 TOWNSEND STREET BUILDING
COMMON AREAS
The sidewalks, halls, passages, exits, entrances, elevators and stairways
of the Building shall not be obstructed by Tenant or used for any purpose other
than for ingress to and egress from the Premises. The halls, passages, exits,
entrances, elevators and stairways are not for the general public and Landlord
shall in all cases have the right to control and prevent access thereto of all
persons (including without limitation, messengers or delivery personnel not
wearing uniforms) whose presence in the judgment of Landlord would be
prejudicial to the safety, character, reputation or interests of the building
and its tenants. Neither Tenant nor any agent, employee contractor, invitee or
licensee of Tenant shall go upon the roof of the Building. Landlord shall have
the right at any time, without the same constituting an actual or constructive
eviction and without incurring any liability to Tenant therefor, to change the
arrangement or location of entrances or passageways, doors or doorways,
corridors, elevators, stairs, toilets and common areas of the Building.
SIGNS
No signs, placard, picture, name, advertisement or notice visible from the
exterior of the Premises shall be inscribed, painted, affixed or otherwise
displayed by Tenant on any part of the Building or the Premises without the
prior written consent of Landlord, Landlord will adopt and furnish to tenants
general guidelines relating to signs inside the Building. Tenant agrees to
conform to such guidelines. All approved signs or lettering shall be printed,
painted, affixed or inscribed at the expense of Tenant by a person approved by
Landlord. Material visible from outside the Building will not be permitted.
PROHIBITED USES
The Premises shall not be used for the storage of merchandise held for sale
to the general public or for lodging. No cooking shall be done or permitted on
the Premises except that private use by Tenant of microwave ovens and/or
Underwriters' Laboratory approved equipment for brewing coffee, tea, hot
chocolate and similar beverages will be permitted, provided that such use is in
accordance with all applicable federal, state and municipal laws, codes,
ordinances, rules and regulations. Tenant shall not use electricity for
lighting, machines or equipment in excess of five (5) watts per square foot.
JANITORIAL SERVICE
Tenant shall not employ any person under than the janitor of Landlord for
the purpose of cleaning the Premises unless otherwise agreed to by Landlord in
writing. Except with the written consent of Landlord, no persons other than
those approved by Landlord shall be permitted to enter the Building for the
purpose of cleaning the Premises.
KEYS
Landlord will furnish Tenant without charge with two (2) keys to each door
lock provided in the Premises by Landlord. Landlord may make a reasonable charge
for any additional keys. Tenant shall not have any such keys copied or any keys
made. Tenant shall not alter any lock or install a new or additional lock or any
bolt on any door of the Premises. Tenant, upon the termination of this Lease,
shall deliver to Landlord all keys to doors in the Building.
MOVING PROCEDURES
Landlord shall designate appropriate entrances for deliveries or other
movement to or from the Premises of equipment, materials, supplies, furniture or
other property, and Tenant shall not use any other entrances for such purposes.
All moves shall be scheduled and carried out during non-business hours of the
Building. All persons employed and means or methods used to move equipment,
materials, supplies, furniture or other property in or out of the Building must
be approved by Landlord prior to any such movement. Landlord shall have the
right to prescribe the maximum weight, size and position of all equipment,
materials, furniture or other property brought into the Building. Heavy objects
shall, if considered necessary by Landlord, stand on a platform of such
thickness as is necessary properly to distribute the weight. Landlord will not
be responsible for loss of or damages to any such property from any cause, and
all damage done to the Building by moving or maintaining such property shall be
repaired at the expense of Tenant.
NO NUISANCES
Tenant shall not use or keep in the Premises or the Building any kerosene,
gasoline or inflammable or combustible fluid or material other than limited
quantities thereof reasonably necessary for the operation or maintenance of
office equipment. Tenant shall not use any method of heating or air conditioning
other than that supplied by Landlord. Tenant shall not use or keep or permit to
be used or kept any foul or noxious gas or substance in the Premises, or permit
or suffer the Premises to be occupied or used in a manner offensive or
objectionable to Landlord or other occupants of the Building by reason of noise,
odors or vibrations, or interfere in any way with other
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tenants or those having business in the Building, nor shall any animals be
brought or kept in the Premises or the Building.
CHANGE OF ADDRESS
Landlord shall have the right, exercisable without notice and without
liability to Tenant, to change the name or street address of the Building or
the room or suite number of the Premises.
BUSINESS HOURS
Landlord establishes the hours of 7:00 a.m. to 6:00 p.m., Monday through
Friday, except generally recognized holidays ("business days"), as reasonable
and usual business hours for the purposes of this Lease. Janitorial services
are provided between the hours of 6:00 p.m. and midnight on business days.
ACCESS TO BUILDING
Landlord reserves the right to exclude from the Building during the
evening, night and early morning hours beginning at 6:00 p.m. and ending at
7:00 a.m., Monday through Friday, and at all hours on Saturdays, Sundays, union
holidays and legal holidays, all persons who do not present identification
acceptable to Landlord. Tenant shall provide Landlord with a list of all
persons authorized by Tenant to enter the Premises and shall be liable to
Landlord for all acts of such persons. Landlord shall in no case be liable for
damages for any error with regard to the admission to or exclusion from the
Building of any person. In the case of invasion, mob, riot, public excitement
or other circumstances rendering such action advisable in Landlord's opinion,
Landlord reserves the right to prevent access to the Building during the
continuance of the same by such action as Landlord may deem appropriate,
including closing doors.
BUILDING DIRECTORY
The directory of the Building will be provided for the display of the name
and location of Tenant. Landlord reserves the right to restrict the amount of
directory space utilized by Tenant. Landlord may make a reasonable charge for
the replacement of directory slots/panels requested by Tenant.
WINDOW COVERINGS
No curtains, draperies, blinds, shutters, shades, screens or other
coverings, hangings or decorations shall be attached to, hung or placed in, or
used in connection with any window of the Building without the prior written
consent of Landlord. In any event, with the prior written consent of Landlord,
such items shall be installed on the office side of Landlord's standard window
covering and shall in no way be visible from the exterior of the Building.
Tenant shall keep window coverings closed when the effect of sunlight (or the
lack thereof) would impose unnecessary loads on the Building's air conditioning
systems.
FOOD AND BEVERAGES
Tenant shall not obtain for use in the Premises ice, drinking water, food,
beverage, towel or other similar services, except at such reasonable hours and
under such reasonable regulations as may be established by Landlord.
PROCEDURES WHEN LEAVING
Tenant shall ensure that the doors of the Premises are closed and locked
and that all water faucets, water apparatus and utilities are shut off before
Tenant and its employees leave the Premises so as to prevent waste or damage.
For any default or carelessness in this regard, Tenant shall be liable and pay
for all damage and injuries sustained by Landlord or other tenants or occupants
of the Building. On multiple-tenancy floors, Tenant shall keep the doors to the
Building corridors closed at all times except for ingress and egress.
BATHROOMS
The toilet rooms, toilets, urinals, wash bowls and other apparatus shall
not be used for any purpose other than that for which they were constructed, no
foreign substance of any kind whatsoever shall be thrown therein, and the
expense of any breakage, stoppage or damage resulting from the violation of
this rule shall be paid by Tenant if caused by Tenant or its agents, employees,
contractors, invitees or licensees.
NO ANTENNA
Tenant shall not install any radio or television antenna, loudspeaker, or
other device on the roof or exterior walls of the Building. No television or
radio or recorder shall be played in such a manner as to cause a nuisance to
any other tenant.
BICYCLES, VEHICLES
There shall not be used in any space, or in the public halls of the
Building, either by Tenant or others, any hand trucks except those equipped
with rubber tires and side guards or such other material handling equipment as
Landlord approves. No other vehicles of any kind, except as hereinafter
provided, shall be brought by Tenant into the Building or
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kept in or about the Premises. Bicycles are permitted in the Building only in
the areas designated by Landlord and only in accordance with rules and
regulations adopted by Landlord for bicycles and bicycle owners.
TRASH REMOVAL
Tenant shall store all its trash and garbage within the Premises. No
material shall be placed in the trash boxes or receptacles if such material is
of such nature that it may not be disposed of in the ordinary and customary
manner of removing and disposing of office building trash and garbage in the
city or county in which the Building is located without being in violation of
any law or ordinance governing such disposal. All garbage and refuse disposal
shall be made only through entryways and elevators provided for such purposes
and at such times as Landlord shall designate. Tenant shall crush and flatten
all boxes, cartons and containers. Tenant shall pay extra charges for any
unusual trash disposal.
NO SOLICITING
Canvassing, soliciting, distribution of handbills or any other written
material and pedding in the Building are prohibited, and Tenant shall cooperate
to prevent the same.
NO SMOKING
In accordance with Section 1, Part II, Chapter V of the San Francisco
Municipal Code (Health Code), Article 19E, Section 1009.5(a), there shall be NO
SMOKING in the Building.
SERVICES
The requirements of Tenant will be attended to only upon application in
writing at the office of the Building. Personnel of Landlord shall not perform
any work or do anything outside of their regular duties unless under special
instructions from Landlord.
WAIVER
Landlord may waive any one or more of these Rules and Regulations for the
benefit of any particular tenant or tenants, but no such waiver by Landlord
shall be construed as a waiver of such Rules and Regulations in favor of any
other tenant or tenants, nor prevent Landlord from thereafter enforcing any
such Rules and Regulations against any or all of the tenants of the Building.
SUPPLEMENTAL TO LEASE
These Rules and Regulations are in addition to, and shall not be construed
to in any way modify or amend, in whole or in part, the covenants of this Lease.
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