\n PAGE
\n
\n1. DEFINITIONS…………………………………………………………………………………1
\n2. LEASE TERM; CONDITION OF PREMISES……………………………………………………………..1
\n3. 8TH AND 9TH FLOORS…………………………………………………………………………..2
\n4. RENTAL……………………………………………………………………………………..3
\n5. ADDITIONAL RENT FOR EXPENSES AND REAL ESTATE TAXES………………………………………………5
\n6. USE……………………………………………………………………………………….10
\n7. SERVICES…………………………………………………………………………………..11
\n8. TENANT REMEDIES…………………………………………………………………………….14
\n9. IMPOSITIONS PAYABLE BY TENANT………………………………………………………………..15
\n10. ALTERATIONS………………………………………………………………………………..16
\n11. LIENS……………………………………………………………………………………..18
\n12. REPAIRS; CONDITION OF PREMISES……………………………………………………………….19
\n13. DESTRUCTION OR DAMAGE……………………………………………………………………….19
\n14. INSURANCE………………………………………………………………………………….21
\n15. WAIVER OF SUBROGATION……………………………………………………………………….23
\n16. INDEMNIFICATION…………………………………………………………………………….24
\n17. COMPLIANCE WITH LEGAL REQUIREMENTS……………………………………………………………24
\n18. ASSIGNMENT AND SUBLETTING……………………………………………………………………25
\n19. RULES; NO DISCRIMINATION…………………………………………………………………….29
\n20. ENTRY BY LANDLORD…………………………………………………………………………..29
\n21. EVENTS OF DEFAULT…………………………………………………………………………..30
\n22. TERMINATION UPON DEFAULT…………………………………………………………………….31
\n23. CONTINUATION AFTER DEFAULT…………………………………………………………………..32
\n24. OTHER RELIEF……………………………………………………………………………….32
\n25. LANDLORD’S RIGHT TO CURE DEFAULTS…………………………………………………………….32
\n26. LANDLORD DEFAULT……………………………………………………………………………32
\n27. ATTORNEYS’ FEES…………………………………………………………………………….33
\n28. EMINENT DOMAIN……………………………………………………………………………..33
\n29. SUBORDINATION AND NONDISTURBANCE……………………………………………………………..33
\n30. NO MERGER………………………………………………………………………………….34<\/p>\n -i-<\/p>\n
TABLE OF CONTENTS
\n (CONTINUED)
\n PAGE<\/p>\n
31. AMENDMENTS…………………………………………………………………………………34
\n32. ESTOPPEL CERTIFICATE………………………………………………………………………..34
\n33. NO LIGHT, AIR, OR VIEW EASEMENT………………………………………………………………34
\n34. HOLDING OVER……………………………………………………………………………….34
\n35. SECURITY DEPOSIT……………………………………………………………………………35
\n36. WAIVER…………………………………………………………………………………….37
\n37. NOTICES AND CONSENTS………………………………………………………………………..37
\n38. COMPLETE AGREEMENT………………………………………………………………………….37
\n39. CORPORATE AUTHORITY…………………………………………………………………………37
\n40. STORAGE SPACE………………………………………………………………………………38
\n41. NO CONSEQUENTIAL DAMAGES…………………………………………………………………….38
\n42. MISCELLANEOUS………………………………………………………………………………38
\n43. ABANDONMENT………………………………………………………………………………..39
\n44. AMERICANS WITH DISABILITIES ACT AND SIMILAR ACTS……………………………………………….39
\n45. EXHIBITS…………………………………………………………………………………..39
\n46. LANDLORD’S LIABILITY; SALE OF BUILDING………………………………………………………..39
\n47. NAME OF BUILDING AND SIGNAGE…………………………………………………………………40
\n48. HAZARDOUS SUBSTANCE DISCLOSURE……………………………………………………………….41
\n49. REAL ESTATE BROKERS…………………………………………………………………………43
\n50. NOTICE TO MORTGAGEE; FINANCIAL STATEMENT………………………………………………………43
\n51. OPTION TO EXTEND……………………………………………………………………………43
\n52. RIGHT OF FIRST REFUSAL………………………………………………………………………46
\n53. PARKING……………………………………………………………………………………47
\n54. BICYCLE PARKING…………………………………………………………………………….48
\n55. INTERNAL FIRE STAIRS………………………………………………………………………..48
\n56. DEDICATED ELEVATOR………………………………………………………………………….48
\n57. YEAR 2000………………………………………………………………………………….48<\/p>\n
<\/c><\/s><\/table>\n
-ii-<\/p>\n
OFFICE LEASE
\n BASIC LEASE INFORMATION<\/p>\n
Lease Execution Date: August 13, 1999<\/p>\n
The Lease Execution Date shall be the date upon which the Lease is
\n fully executed by both parties. Upon Lease execution by Landlord,
\n Landlord shall promptly send a copy of the fully executed Lease to
\n Tenant by facsimile, followed by overnight delivery of a complete,
\n fully executed original Lease.<\/p>\n
Landlord: OAIC Bush Street, LLC, a Delaware limited liability company<\/p>\n
Tenant: Xoom.com, Inc., a Delaware corporation<\/p>\n
Building (Section 1(a)): 225 Bush Street, San Francisco, California<\/p>\n
Premises (Section 1(b)):<\/p>\n
Suite 800 on the entire 8th floor of the Building (the “8th Floor”)
\n Suite 900 on the entire 9th floor of the Building (the “9th Floor”)
\n Suite 1200 on the entire 12th floor of the Building (the “12th Floor”)
\n Suite 1300 on the entire 13th floor of the Building (the “13th Floor”)
\n Suite 1900 on the entire 19th floor of the Building (the “19th Floor”)
\n Suite 2000 on the entire 20th floor of the Building (the “20th Floor”)
\n Suite 2100 on the entire 21st floor of the Building (the “21st Floor”)
\n Suite 2200 on the entire 22nd floor of the Building (the “22nd Floor”)<\/p>\n
Rentable Area of Premises (Section 1(b)):<\/p>\n
25,233 rentable square feet on the 8th floor
\n 26,042 rentable square feet on the 9th floor
\n 26,041 rentable square feet on the 12th floor
\n 26,034 rentable square feet on the 13th floor
\n 24,157 rentable square feet on the 19th floor
\n 22,123 rentable square feet on the 20th floor
\n 18,751 rentable square feet on the 21st floor
\n 18,314 rentable square feet on the 22nd floor<\/p>\n
The total rentable square footage for the Premises is 186,695 rentable
\nsquare feet.<\/p>\n
III<\/p>\n
The Premises rentable square footage was measured based upon ANSI\/BOMA
\n Z65.1-1996 standards, except for the 22nd floor which calculation
\n excludes the exterior loggia area for the purposes of this Lease.
\n Landlord and Tenant have agreed to the Premises rentable square footage
\n for all purposes and said square footage will not be revised during the
\n entire term of the Lease, including all Extension Periods.<\/p>\n
Term Commencement Date (Section 2(a)):<\/p>\n
(1) The Term Commencement Date for the 19th Floor shall be on or
\nbefore September 1, 1999 (the “19th Floor Term Commencement Date”).<\/p>\n
(2) The Term Commencement Date for the 12th Floor and 13th Floor
\nshall be the earlier of twenty-six (26) weeks after the Lease Execution Date,
\nplus days attributable to Landlord Delays and Force Majeure Events, or
\nsubstantial completion of the Tenant Work and Base Building Work on the 12th and
\n13th Floor (the “12th and 13th Floor Term Commencement Date”). The estimated
\n12th and 13th Floor Term Commencement Date is February 4, 2000 (the “Estimated
\n12th and 13th Floor Term Commencement Date”).<\/p>\n
(3) The Term Commencement Date for the 20th Floor and 21st Floor
\nshall be the earlier of twenty-six (26) weeks after the Lease Execution Date,
\nplus days attributable to Landlord Delays and Force Majeure Events, or
\nsubstantial completion of the Tenant Work and Base Building Work on the 20th
\nFloor and 21st Floor (the “20th and 21st Floor Term Commencement Date”). The
\nestimated 20th and 21st Floor Term Commencement Date is February 4, 2000 (the
\n“Estimated 20th and 21st Floor Term Commencement Date”).<\/p>\n
(4) The Term Commencement Date for the 22nd Floor shall be the
\nearlier of fourteen (14) months after the Lease Execution Date, plus days
\nattributable to Landlord Delays and Force Majeure Events, or upon substantial
\ncompletion of the Tenant Work and Base Building Work on the 22nd Floor (the
\n“22nd Floor Term Commencement Date”). The estimated 22nd Floor Term Commencement
\nDate is October 15, 2000 (the “Estimated 22nd Floor Term Commencement Date”).<\/p>\n
(5) The Term Commencement Date for the 8th Floor and 9th Floor
\nshall be as set forth in Section 3 of the Lease.<\/p>\n
Term Expiration Date (Section 2(a)): The last day of the month, one hundred
\ntwenty (120) months after the 20th and 21st Floor Term Commencement Date.<\/p>\n
IV<\/p>\n
Base Monthly Rental (Section 3(a)):<\/p>\n
\n\n—————————————————————————————-
\n FLOOR OF PREMISES YEARS(2) 1-5: YEARS 6-10
\n
\n—————————————————————————————-
\n 8th Floor $73,596.25\/mo. $79,904.50\/mo.
\n $883,155\/an. ($35.00(1)) $958,854\/an. ($38.00(1))
\n—————————————————————————————-
\n 9th Floor $75,955.83\/mo. $82,466.33\/mo.
\n $911,470\/an. ($35.00(1)) $989,596\/an. ($38.00(1))
\n—————————————————————————————-
\n 12th Floor $80,293.08\/mo. $84,633.25\/mo.
\n $963,517.00\/an. ($37.00(1)) $1,015,599.00\/an. ($39.00(1))
\n—————————————————————————————-
\n 13th Floor $80,271.50\/mo. $84,610.50\/mo.
\n $963,258.00\/an. ($37.00(1)) $1,015,326.00\/an. ($39.00(1))
\n—————————————————————————————-
\n 19th Floor $74,484.08\/mo. $78,510.25\/mo.
\n $893,809.00\/an. ($37.00(1)) $942,123.00\/an. ($39.00(1))
\n—————————————————————————————-
\n 20th Floor $73,743.33\/mo. $82,961.25\/mo.
\n $884,920.00\/an. ($40.00(1)) $995,535.00\/an. ($45.00(1))
\n—————————————————————————————-
\n 21st Floor $62,503.33\/mo. $70,316.25\/mo.
\n $750,040.00\/an. ($40.00(1)) $843,795.00\/an. ($45.00(1))
\n—————————————————————————————-
\n 22nd Floor $67,151.33\/mo. $70,203.67\/mo.
\n $805,816.00\/an. ($44.00(1)) $842,444.00\/an. ($46.00(1))
\n—————————————————————————————-
\n Total: $587,998.73\/mo. $633,606.00\/mo.
\n $7,055,985.00\/an. $7,603,272.00\/an.
\n—————————————————————————————-<\/p>\n<\/c><\/c><\/s><\/caption>\n<\/table>\n
(1) Per rentable square, per annum.
\n(2) Years shall be measured from the 20th and 21st Floor Term Commencement Date<\/p>\n
Base Expense Year (Section 1(c)): 2000<\/p>\n
Base Tax Year (Section 1(d)): 2000<\/p>\n
V<\/p>\n
Tenant’s Expense Share (Section 5(a)): 33.62%<\/p>\n
Tenant’s Expense Share by floor of the Premises shall be<\/p>\n
4.54% for the 8th Floor
\n 4.69% for the 9th Floor
\n 4.69% for the 12th Floor
\n 4.69% for the 13th Floor
\n 4.35% for the 19th Floor
\n 3.98% for the 20th Floor
\n 3.38% for the 21st Floor
\n 3.30% for the 22nd Floor<\/p>\n
Landlord and Tenant agree that Tenant’s Expense Share is calculated
\n based upon the Building containing 555,325 rentable square feet
\n (“Building Square Footage”).<\/p>\n
Tenant’s Tax Share (Section 5(a)): 33.62% of the Building<\/p>\n
Tenant’s Tax Share by floor of the Premises shall be:<\/p>\n
4.54% for the 8th Floor
\n 4.69% for the 9th Floor
\n 4.69% for the 12th Floor
\n 4.69% for the 13th Floor
\n 4.35% for the 19th Floor
\n 3.98% for the 20th Floor
\n 3.38% for the 21st Floor
\n 3.30% for the 22nd Floor<\/p>\n
Landlord and Tenant agree that Tenant’s Tax Share is calculated based
\n upon the Building Square Footage (as defined above).<\/p>\n
Security Deposit (Section 35): Upon full execution of the Lease: a Letter
\n of Credit in the amount of $4,500,000
\n subject to reduction and\/or return to the
\n Tenant in accordance with the terms of
\n Section 35 of this Lease<\/p>\n
Tenant’s Address
\nfor Notices (Section 37):<\/p>\n
Prior to 19th Floor Term Commencement Date:<\/p>\n
Xoom.com, Inc.
\n 300 Montgomery Street, Suite 300<\/p>\n
VI<\/p>\n
San Francisco, California 94104
\n Attn: Director of Operations and Administration
\n Phone: (415) 288-2500
\n Fax: (415) 288-2580<\/p>\n
After the 19th Floor Term Commencement Date:<\/p>\n
Xoom.com, Inc.
\n 225 Bush Street, Suite ____
\n San Francisco, California 94104
\n Attn: Director of Operations and Administration
\n Phone: (415)_________________________
\n Fax: (415)___________________________
\n [blanks to be completed on occupancy]<\/p>\n
Landlord’s Address
\nfor Notices (Section 37)<\/p>\n
OAIC Bush Street, LLC
\n c\/o Ocwen Capital Corporation
\n 1675 Palm Beach Lakes Boulevard
\n The Forum, Suite 511
\n West Palm Beach, FL 33401
\n Attn: Secretary
\n Phone: (561) 682-8517
\n Fax: (561) 682-8177<\/p>\n
with a copy to:<\/p>\n
OAIC Bush Street, LLC
\n c\/o Ocwen Capital Corporation
\n 1675 Palm Beach Lakes Boulevard
\n The Forum
\n West Palm Beach, FL 33401
\n Attn: Real Estate Asset Management Department
\n Phone: (561) 682-8275
\n Fax: (561) 682-8163<\/p>\n
VII<\/p>\n
with a copy to:<\/p>\n
Jones Lang LaSalle
\n 225 Bush Street, Suite 770
\n San Francisco, California 94104
\n Attn: Property Manager
\n Phone: (415) 835-0225
\n Fax: (415) 835-0222<\/p>\n
Exhibit(s) and Addendum (Section 45):<\/p>\n
Exhibit A: Floor Plan
\n Exhibit B: Rules and Regulations
\n Exhibit C: Work Letter
\n Exhibit D: Commencement Date Memorandum
\n Exhibit E: Tenant Estoppel
\n Exhibit F: Subordination, Attornment and Non-Disturbance Agreement<\/p>\n
Real Estate Brokers (Section 49): Mark Rosen of Rosen and Reynolds for Tenant
\nand Angus Scott and Richard Dougherty of Grubb & Ellis for Landlord.<\/p>\n
The provisions of the Lease identified above in parentheses are those provisions
\nwhere references to particular Basic Lease Information appear. Each such
\nreference shall incorporate the applicable Basic Lease Information. In the event
\nof any conflict between any Basic Lease Information and the Lease, the latter
\nshall control.<\/p>\n
TENANT: LANDLORD:<\/p>\n
Xoom.com, Inc. OAIC Bush Street, LLC,
\na Delaware corporation a Delaware limited liability company<\/p>\n
By: \/s\/ Chris Kitze By: \/s\/ Gregory Breskin
\n —————————– ———————————
\nName: Chris Kitze Name: Gregory Breskin
\n ————————— ——————————-
\nIts: Chairman Its: Vice President
\n —————————- ——————————–<\/p>\n
By: \/s\/ John Harbottle By: \/s\/ Christine Reich
\n —————————– ———————————
\nName: John Harbottle Name: Christine Reich
\n ————————— ——————————-
\nIts: CFO Its: President
\n —————————- ——————————–<\/p>\n
VIII<\/p>\n
OFFICE LEASE<\/p>\n
THIS LEASE, dated August 13, 1999, for purposes of reference only,
\nis made and entered into by and between OAIC Bush Street, LLC, a Delaware
\nlimited liability company (“Landlord”), and Xoom.com, Inc., a Delaware
\ncorporation (“Tenant”).<\/p>\n
WITNESSETH:<\/p>\n
Landlord hereby leases to Tenant, and Tenant hereby leases from
\nLandlord, the premises described in Section 1(b) below for the term and
\nsubject to the terms, covenants, agreements and conditions hereinafter set
\nforth, to each and all of which Landlord and Tenant hereby mutually agree.<\/p>\n
1. DEFINITIONS. Unless the context otherwise specifies or
\nrequires, the following terms shall have the meanings herein specified:<\/p>\n
(a) The term “Building” shall mean the building or
\nbuildings described in the Basic Lease Information, and the parcel or parcels
\nof land on which such building or buildings are situated, together with all
\nother improvements and other real property located on such parcel or parcels,
\nincluding without limitation the garage, as well as any property interest in
\nthe area of the streets bounding the parcel described in the Basic Lease
\nInformation, and all other improvements on or appurtenances to said parcel or
\nsaid streets.<\/p>\n
(b) The term “Premises” shall mean the portion of the
\nBuilding located on the floors specified in the Basic Lease Information which
\nis shown crosshatched on the floor plan(s) attached to this Lease as EXHIBIT A.
\nLandlord and Tenant agree that the Premises consist of the number of square
\nfeet of rentable area set forth in the Basic Lease Information. All the
\noutside walls and windows of the Premises and any space in the Premises used
\nfor shafts, stacks, pipes, conduits, ducts, electric or other utilities,
\nsinks or other Building facilities, and the use thereof and access thereto
\nthrough the Premises for the purposes of operation, maintenance and repairs,
\nare reserved to Landlord.<\/p>\n
(c) The term “Base Expense Year” shall mean the
\ncalendar year specified in the Basic Lease Information as the Base Expense
\nYear.<\/p>\n
(d) The term “Base Tax Year” shall mean the calendar
\nyear specified in the Basic Lease Information as the Base Tax Year.<\/p>\n
2. LEASE TERM; CONDITION OF PREMISES.<\/p>\n
(a) The Lease term (the “Lease Term”) shall commence
\nfor the respective floors of the Premises on the Term Commencement Dates
\nspecified in the Basic Lease Information, as modified by the terms of the
\nLease and the Work Letter attached hereto as Exhibit C (the “Work Letter”),
\nand unless ended sooner as herein provided, shall expire on the Term
\nExpiration Date specified in the Basic Lease Information.<\/p>\n
(b) Tenant and Landlord shall construct or install in
\nthe Premises the improvements to be constructed or installed pursuant to the
\nWork Letter. Landlord shall own all of said initial improvements to be
\nconstructed or installed pursuant to the Work Letter as of the Term
\nCommencement Date for each respective floor in the Premises.<\/p>\n
(c) If Landlord for any reason whatsoever cannot
\ndeliver possession of the Premises to Tenant on the respective Premises
\nDelivery Date (as defined in Exhibit C), this Lease shall not be void or
\nvoidable, no obligation of Tenant shall be affected hereby and Landlord shall
\nnot be liable to Tenant for any loss or damage resulting therefrom.<\/p>\n
3. 8TH AND 9TH FLOORS.<\/p>\n
(a) In connection with the 8th floor (the “8th Floor”)
\nand 9th floor (the “9th Floor”) in the Building, Landlord shall give written
\nnotice to Tenant upon the current 8th and 9th Floor tenant’s vacation of the
\n8th and 9th Floors (the “Availability Notice”). In no event shall Landlord
\ngive Tenant the Availability Notice prior to January 1, 2000. Tenant shall
\nhave thirty (30) days after Landlord provides the Availability Notice (the
\n“Availability Notice Period”) to give Landlord written notice that (i) Tenant
\ndesires to build out the 8th and\/or 9th Floors for Tenant’s use (“Tenant
\nBuild Out”), or (ii) Tenant desires to sublet the 8th and\/or 9th Floor to a
\nthird party sublessee and build out the 8th and 9th Floors accordingly
\n(“Sublessee Build Out”). Tenant shall have the right to pursue a Tenant Build
\nOut or a Sublessee Build Out on either the 8th Floor or 9th Floor and is not
\nrequired to elect the same build out for both of said floors. If Tenant fails
\nto deliver written notice during the Availability Notice Period, Tenant shall
\nbe deemed to have elected a “Sublessee Build Out” for both the 8th Floor and
\n9th Floor. Each and every provision of this Lease and Exhibit C shall apply
\nto a Tenant Build Out or Sublessee Build Out, except as provided to the
\ncontrary in this Section or in Exhibit C.<\/p>\n
(b) In the case of a Tenant Built Out on the 8th Floor
\nand\/or 9th Floor, as applicable, (i) Tenant shall be entitled to a Tenant
\nImprovement Allowance in Section 5 of Exhibit C of Forty Dollars ($40.00) per
\nsquare foot of rentable area for the 8th Floor ($1,009,320) and\/or Forty
\nDollars ($40.00) per square foot of rentable area for the 9th Floor
\n($1,041,680), (ii) as required in Section 1(a) of Exhibit C, Tenant shall
\ndeliver an initial draft of the Space Plan for the 8th Floor and\/or 9th
\nFloor, as applicable, after the end of the Availability Notice Period,
\n(iii) the Premises Delivery Date (as defined in Exhibit C), in Section 2(c)
\nof Exhibit C, for the 8th Floor and\/or 9th Floor, as applicable, shall be on
\nor before six (6) weeks after the end of the Availability Notice Period, as
\nextended by any Force Majeure Events and\/or Landlord Delay, and (iv) the Term
\nCommencement Date for the 8th Floor and\/or 9th Floor (“8th Floor Term
\nCommencement Date” and\/or “9th Floor Term Commencement Date” as applicable)
\nshall be twelve (12) weeks after the Premises Delivery Date. In addition to
\nthe definition of Landlord Delay in EXHIBIT C, for purposes of this Section 3,
\nevery day after January 1, 2000 until the date on which Landlord delivers the
\nAvailability Notice to Tenant shall be considered a Landlord Delay.<\/p>\n
(c) In the case of a Sublessee Build Out on the
\n8th Floor and\/or 9th Floor, as applicable, (i) Tenant shall be entitled to an
\ninitial Tenant Improvement Allowance in Section 5 <\/p>\n
2<\/p>\n
of Exhibit C of up to and including Five Dollars ($5.00) per square foot of
\nrentable area for the 8th Floor ($126,165) and\/or up to and including Five
\nDollars ($5.00) per square foot of rentable area for the 9th Floor
\n($130,210), (ii) as required in Section 1(a) of Exhibit C, Tenant shall
\ndeliver an initial draft of the Space Plan for the 8th Floor and\/or 9th
\nFloor, as applicable, after the end of the Availability Notice Period,
\n(iii) the Premises Delivery Date, in Section 2(c) of Exhibit C, for the
\n8th Floor and\/or 9th Floor, as applicable, shall be the date that Landlord
\nreceives written notice from the Tenant electing a Sublessee Build Out, but
\nin no event later than the expiration of the Availability Notice Period, and
\n(iv) the Term Commencement Date for the 8th Floor and\/or 9th Floor
\n(“8th Floor Term Commencement Date” and\/or “9th Floor Term Commencement Date”
\nas applicable) shall be March 1, 2000, as extended by any Force Majeure
\nEvents and\/or Landlord Delay.<\/p>\n
(d) In the event that Tenant elects a Sublessee Build
\nOut pursuant to this Section for either the 8th Floor and\/or 9th Floor,
\nTenant shall have the option, exercisable upon written notice to Landlord
\n(“Additional Build Out Notice”), to further build out the 8th Floor and\/or
\n9th Floor, as applicable for Tenant’s use (“Additional Tenant Build Out”). In
\nconnection therewith, Tenant shall be entitled to a total Tenant Improvement
\nAllowance in Section 5 of Exhibit C of Forty Dollars ($40.00) per square foot
\nof rentable area for the 8th Floor ($1,009,320) and\/or ($40.00) per square
\nfoot of rentable area for the 9th Floor ($1,041,680), less the amount of the
\nTenant Improvement Allowance expended during the Sublessee Build Out of the
\n8th Floor and\/or 9th Floor, as applicable. Notwithstanding anything to the
\ncontrary contained herein, during the last twenty-four (24) months of the
\noriginal Lease Term, Tenant shall not be entitled to an any additional Tenant
\nImprovement Allowance from Landlord in connection with an Additional Tenant
\nBuild Out. In the event that Tenant exercises the option contained in this
\nSection 3(d) Tenant shall deliver an initial draft of the Space Plan for the
\ntenant improvements to be constructed on the 8th Floor and\/or 9th Floor, as
\napplicable, as required in Section 1(a) of Exhibit C after the Additional
\nBuild Out Notice, and (ii) the parties agree that Landlord shall be required
\nto complete any remaining Base Building Work (as defined in Exhibit C) at the
\ntime of the Additional Build Out.<\/p>\n
(e) If the Tenant elects the Sublessee Build Out,
\nTenant shall be entitled to a credit against the 8th Floor Base Monthly
\nRental and 9th Floor Base Monthly Rental (collectively, “Rent Credit”) in the
\namount of three dollars ($3.00) per rentable square foot per year until the
\nearlier of (i) the nineteenth (19th) month after the 8th Floor Term
\nCommencement Date and\/or the 9th Floor Term Commencement Date, as applicable,
\nor (ii) eighteen (18) weeks after the Additional Build Out Notice.<\/p>\n
4. RENTAL.<\/p>\n
(a) Commencing on the respective Rent Commencement
\nDates, as defined below, with respect to each floor of the Premises and
\nthereafter through the remainder of the Lease Term, Tenant shall pay to
\nLandlord throughout the Lease Term as basic monthly rental for the Premises
\nthe sum specified for each floor of the Premises in the Basic Lease
\nInformation as the Base Monthly Rental. As additional rent hereunder during
\nsuch period, Tenant shall pay to Landlord the additional rent described in
\nSection 5 below. Base Monthly Rental and additional <\/p>\n
3<\/p>\n
rent payable pursuant to Section 5 shall be collectively referred to herein
\nas “monthly rental.” As used herein the “Rent Commencement Date” for each
\nfloor of the Premises shall mean the Term Commencement Date for each
\nrespective floor of the Premises as set forth in the Basic Lease Information.
\nLandlord and Tenant hereby agree to confirm the Rent Commencement Date and
\nTerm Commencement Date for each floor of the Premises promptly after the Term
\nCommencement Date for each floor of the Premises, by executing and delivering
\nto each other a Commencement Date Memorandum in conformance with EXHIBIT D
\nattached hereto, but failure to do so shall not affect the Rent Commencement
\nDate, Term Commencement Date or Lease Term.<\/p>\n
(b) Monthly rental shall be paid to Landlord on or
\nbefore the Rent Commencement Date and on or before the first day of each and
\nevery successive calendar month thereafter during the term hereof. In the
\nevent the Rent Commencement Date is on a day other than the first day of a
\ncalendar month or the Lease Term ends on a day other than the last day of a
\ncalendar month, the monthly rental for the first and last fractional months
\nhereof shall be appropriately prorated.<\/p>\n
(c) All sums of money due from Tenant hereunder not
\nspecifically characterized as rental shall constitute additional rent, and if
\nany such sum is not paid when due it shall nonetheless be collectible as
\nadditional rent with the next installment of monthly rental thereafter
\nfalling due, but nothing contained herein shall be deemed to suspend or delay
\nthe payment of any sum of money at the time it becomes due and payable
\nhereunder, or to limit any other remedy of Landlord.<\/p>\n
(d) Tenant hereby acknowledges that late payment by
\nTenant to Landlord of monthly rental will cause Landlord to incur costs not
\ncontemplated by this Lease, the exact amounts of which will be difficult to
\nascertain. Such costs include, but are not limited to, processing and
\naccounting charges, and late charges which may be imposed on Landlord by the
\nterms of any encumbrances covering the Building and the Premises.
\nAccordingly, if any installment of monthly rental shall not be received by
\nLandlord prior to the expiration of any applicable grace period described in
\nSection 21(a), Tenant shall pay to Landlord a late charge equal to five
\npercent (5%) of such overdue amount; provided that, on not more than two
\n(2) occasions in any consecutive twelve (12) month period Tenant may be up to
\nfive (5) days late in the payment of monthly rental after written notice from
\nLandlord; provided further that, if monthly rental is not paid when due three
\n(3) times during any Lease Year, then thereafter Tenant shall not be entitled
\nto any grace period, and such late charge shall be assessed on any monthly
\nrental not paid by 5:00 p.m. on the date due. The parties hereby agree that
\nsuch late charge represents a fair and reasonable estimate of the costs
\nLandlord will incur by reason of late payment by Tenant based on the
\ncircumstances existing as of the date of this Lease. Acceptance of such late
\ncharge by Landlord shall in no event constitute a waiver of Tenant’s default
\nwith respect to such overdue amount, nor prevent Landlord from exercising any
\nof the other rights and remedies granted hereunder.<\/p>\n
(e) Any amount due from Tenant, if not paid when first
\ndue, shall bear interest from the date first due until paid at an annual rate
\nof thirteen percent (13%) (but in no event in <\/p>\n
4<\/p>\n
excess of the maximum rate of interest permitted by law), provided that
\ninterest shall not be payable on late charges incurred by Tenant nor on any
\namounts upon which late charges are paid by Tenant to the extent such
\ninterest would cause the total interest to be in excess of that legally
\npermitted. Payment of interest shall not excuse or cure any default hereunder
\nby Tenant.<\/p>\n
(f) Subject to the provisions of Section 21(a) below,
\nall payments due from Tenant to Landlord shall be paid to Landlord, without
\nnotice, demand, deduction or offset, in lawful money of the United States of
\nAmerica in immediately available funds or by good check as described below
\nand unless otherwise instructed, addressed to the Property Manager at the
\naddress set forth in the Basic Lease Information, or to such other person or
\nat such other place as Landlord may from time to time designate by notice to
\nTenant. Payments made by check must be drawn either on a California financial
\ninstitution or on a financial institution that is a member of the federal
\nreserve system. Notwithstanding the foregoing, Tenant may make any payments
\ndue to Landlord by wire transfer and said payments shall be considered
\nreceived by Landlord upon receipt into Landlord’s bank account.<\/p>\n
5. ADDITIONAL RENT FOR EXPENSES AND REAL ESTATE TAXES.<\/p>\n
(a) For purposes of this Section 5, the following
\nterms shall have the meanings hereinafter set forth:<\/p>\n
(i) “Tenant’s Tax Share” and “Tenant’s
\nExpense Share” mean the percentage figures so specified in the Basic Lease
\nInformation.<\/p>\n
(ii) “Tax Year” means each twelve (12)
\nconsecutive month period commencing January 1st of each year during the Lease
\nTerm, including, without limitation, any partial year during which the Lease
\nmay commence; provided that Landlord, upon notice to Tenant, may change the
\nTax Year from time to time to any other twelve (12) consecutive month period
\nand, in the event of any such change, Tenant’s Tax Share of Real Estate Taxes
\nshall be adjusted for the Tax Year involved in any such change.<\/p>\n
(iii) “Real Estate Taxes” means all taxes,
\nassessments (whether general or special), levies, excises, fees and charges
\nof any kind whatsoever, ordinary or extraordinary, unforeseen as well as
\nforeseen, assessed, imposed or levied upon or with respect to the Building or
\nany part thereof or any personal property of Landlord used in the operation
\nthereof, or Landlord’s interest in the Building or such personal property.
\nReal Estate Taxes shall include, without limitation: all general real
\nproperty taxes and general and special assessments, charges, fees, or
\nassessments for transit, housing, police, fire, or other governmental
\nservices or purported benefits to the Building or the occupants thereof,
\nservice payments in lieu of taxes, business taxes, and any tax, fee, or
\nexcise on the act of entering into this Lease or any other lease of space in
\nthe Building, or on the use or occupancy of the Building or any part thereof,
\nor on the rent payable under any lease or in connection with the business of
\nrenting space in the Building, or any gross receipt taxes or excise taxes
\nthat are now or hereafter levied or assessed against Landlord by the United
\nStates of America, the State of California or any political subdivision
\nthereof, public corporation, district, or any other political or public
\nentity, and shall also include any other tax, fee, charge or other excise,
\nhowever described, that may be levied or assessed as a <\/p>\n
5<\/p>\n
substitute for, or as an addition to, in whole or in part, any other Real
\nEstate Taxes, whether or not now customary or in the contemplation of the
\nparties on the date of this Lease. Real Estate Taxes shall not include taxes
\nassessed solely upon and\/or paid by other tenants in the Building, franchise,
\ntransfer, inheritance or capital stock taxes or income taxes measured by the
\nnet income of Landlord from all sources unless, due to a change in the method
\nof taxation, any of such taxes is levied or assessed against Landlord as a
\nsubstitute for, or as an addition to, in whole or in part, any other tax that
\nwould otherwise constitute a Real Estate Tax. Real Estate Taxes shall also
\ninclude legal fees, costs, and disbursements incurred in connection with
\nproceedings to contest, determine, or reduce Real Estate Taxes.<\/p>\n
(iv) “Expense Year” means each twelve (12)
\nconsecutive month period commencing January 1st of each year during the Lease
\nTerm, including, without any limitation, any partial year during which the
\nLease may commence; provided that Landlord, upon notice to Tenant, may change
\nthe Expense Year from time to time to any other twelve (12) consecutive month
\nperiod and, in the event of any such change, Tenant’s Expense Share of
\nExpenses shall be adjusted for the Expense Years involved in any such change.<\/p>\n
(v) “Expenses” means the total costs and
\nexpenses paid or incurred by Landlord in connection with the ownership,
\nmanagement, operation, maintenance and repair of the Building, including,
\nwithout limitation: (i) the cost of air conditioning, electricity, steam,
\nwater, sewer, heating, mechanical, telephone, ventilating, escalator and
\nelevator systems and all other services and utilities; (ii) the cost of
\nrepairs and replacements and all labor and material costs related thereto,
\nand the cost of general maintenance, cleaning and service contracts and the
\ncost of all supplies, tools and equipment required in connection thereof;
\n(iii) the cost of the Building delivery and messenger service; (iv) the cost
\nincurred by Landlord for all insurance carried on the Building or in
\nconnection with the use and\/or occupancy thereof and the amount of any
\ndeductible on uninsured loss (earthquake insurance shall either be included
\nin the base year Expenses calculation or, if earthquake insurance is not so
\nincluded in the base year Expenses calculation, and Landlord in the future
\ndesires to carry earthquake insurance, only that portion of the earthquake
\ninsurance cost as represents the reasonable increase in the cost of such
\nearthquake insurance over an imputed base year cost shall be included as an
\nExpense); (v) wages, salaries, payroll taxes and other labor costs and
\nemployee benefits for employees up to and including the level of Building
\nmanager; (vi) management fees, which shall not exceed the market range for
\nsuch fees; (vii) fees, charges and other costs of all independent contractors
\nengaged by Landlord, including those providing janitorial, window cleaning,
\nsecurity, extermination, rubbish removal, planting and other services;
\n(viii) accounting and legal expenses and the costs of other professionals and
\nconsultants; (ix) Landlord’s share of any shared expenses under any
\nreciprocal easement agreement or similar document; (x) depreciation on
\npersonal property, including, without limitation, carpeting in public
\ncorridor and common areas and window coverings provided by Landlord; (xi) the
\nrental paid for offices in the Building for the property manager and related
\nmanagement and operations personnel; (xii) the cost of any capital
\nimprovements made to the Building, or capital assets acquired by Landlord,
\nafter completion of the Building’s construction that are (A) a labor-saving
\nor energy saving device or to enhance the health and safety of the public
\n(including tenants) or to effect other economies in the operation or
\nmaintenance of the Building to the extent of the actual savings, enhancement
\nor effect on other <\/p>\n
6<\/p>\n
economies, or (B) made to the Building after the date of this Lease that are
\nrequired under any governmental law or regulation or insurance carrier that
\nwas not applicable to the Building at the time that permits for the
\nconstruction thereof were obtained; provided that the total cost of said
\nimprovements or assets that shall be included in the Expenses calculation
\nshall not exceed Three Hundred Thousand Dollars ($300,000) during any Expense
\nYear; (C) to the extent that the cost of any such improvement or asset is
\nless than One Hundred Thousand Dollars ($100,000.00), provided that the total
\ncost of said improvements or assets that shall be included in the Expenses
\ncalculation shall not exceed Two Hundred Thousand Dollars ($200,000) during
\nany Expense Year, or (D) which improvements or assets have a useful life of
\nfive (5) years or less (and the cost of which is not otherwise included in
\nExpenses pursuant to this Section 5(a)(v)), so long as the amortized amount
\nunder this subsection (D) above that is included in the Expenses calculation
\nfor any Expense year, when combined with the costs under subsection (C),
\nshall not exceed Two Hundred Thousand Dollars ($200,000); the costs pursuant
\nto this subsection 5(a)(v)(xii) (other than those described in clause (C)
\nabove) are to be amortized over such period as Landlord shall determine
\n(including, without limitation, with respect to any improvements which result
\nin cost savings with respect to the Building, such period as would allow
\nLandlord to amortize the improvements to the extent of such cost savings in
\nany year or to any greater extent deemed appropriate to Landlord, together
\nwith interest on the unamortized balance at the rate of ten percent (10%) per
\nannum or such higher rate as may have been paid by Landlord on funds borrower
\nfor the purpose of constructing such capital improvements (GAAP shall be used
\nto determine if an item is an expense or a capital expenditure); (xiii) the
\namortized cost of the Transit Impact Development Fee of the City and County
\nof San Francisco; (xiv) the cost of contesting the validity or applicability
\nof any governmental enactments which may affect operating expenses; (xv)
\nlicense, permit and inspection fees and charges; (xvi) sales, use and excise
\ntaxes on goods and services purchased by Landlord in connection with the
\noperation, maintenance or repair of the Building and building systems and
\nequipment; (xvii) supplies, tools, materials and equipment used in connection
\nwith the operation, maintenance or repair of the Building; (xviii) painting
\nthe exterior or the public or common areas of the Building and the cost of
\nmaintaining the sidewalks, landscaping and other common areas of the
\nBuilding; and (xiv) any other expenses and costs of any kind whatsoever
\nincurred in connection with the ownership, management, operation, maintenance
\nand repair of the Building. Expenses shall not include Real Estate Taxes, the
\ncost of tenant improvements, real estate broker’s commissions, or interest or
\nprincipal payments on loans which are secured by a deed of trust or mortgage
\nencumbering the Building.<\/p>\n
Actual Expenses for both the Base Expense Year and each
\nsubsequent Expense Year shall be adjusted to equal Landlord’s reasonable
\nestimate of the Expenses had the total area of the Building been occupied for
\neach such Expense Year. Landlord and Tenant acknowledge and agree that
\ncertain costs of the ownership, management, operation maintenance and repair
\nof the Building may be allocated exclusively to a single component of the
\nBuilding (for example, and without limitation, to an office area, a retail
\narea or a parking facility) and certain of such costs may be allocated among
\nsuch components. The determination of such costs and their allocation shall
\nbe made by Landlord in Landlord’s reasonable discretion. To the extent costs
\nand expenses described above relate to both the Building and other property,
\nsuch costs and <\/p>\n
7<\/p>\n
expenses shall, in determining the amount of Expenses, be allocated as
\nLandlord may determine to be appropriate.<\/p>\n
Notwithstanding anything to the contrary in the definition
\nof Expenses, Expenses shall not include:<\/p>\n
(i) Depreciation (except as provided in
\nSection 5(a)(v)(x) above), interest, or amortization on mortgages payments;<\/p>\n
(ii) Leasing commissions, attorney’s fees and
\nother costs and expenses incurred in connection with negotiations or disputes
\nwith present or prospective tenants or other occupants of the Building;<\/p>\n
(iii) Advertising and promotional expenditures
\nrelated to leasing tenant space in the Building;<\/p>\n
(iv) Costs incurred with respect to the
\ninstallation of tenant improvements made for new tenants in the Building or
\nincurred in renovating or otherwise improving, decorating, painting or
\nredecorating space leased by or exclusively available to other tenants or
\nother occupants of the Building;<\/p>\n
(v) Expenses, costs, and disbursements
\nrelating to, or arising directly or indirectly from, the testing for or
\nanalysis, handling, removal, treatment, disposal, remediation, or replacement
\nof asbestos or asbestos-containing materials, lead or Hazardous Materials in,
\non, around, beneath, or from the Building;<\/p>\n
(vi) To the extent that retail tenants in the
\nBuilding are separately metered or separately billed, the cost of
\nelectricity, chilled and hot water for heating and cooling air, and
\njanitorial service for such retail tenants in their premises and in excess of
\nstandard water service to retail tenants in the Building;<\/p>\n
(vii) Cost for public art (including, without
\nlimitation, paintings and sculptures); and<\/p>\n
(viii) Expenses, to the extent reimbursed by
\nthird parties; and<\/p>\n
(ix) Any sales, mortgage or other brokerage
\ncommissions in connection with the sale of financing of the Building.<\/p>\n
(b) Tenant shall pay to Landlord as additional rent
\none twelfth (1\/12) of Tenant’s Tax Share of increases in the Real Estate
\nTaxes for each Tax Year or portion thereof during the Lease Term after the
\nBase Tax Year when compared to Real Estate Taxes for the Base Tax Year (the
\n“Tax Increases”), in advance, on or before the first day of each month during
\nsuch Tax Year, in an amount estimated by Landlord in a writing delivered to
\nTenant. Landlord may revise such estimates from time to time and Tenant will
\nthereafter make payments on the basis of such revised estimates.<\/p>\n
8<\/p>\n
(c) Tenant shall pay to Landlord as additional rent
\none twelfth (1\/12) of Tenant’s Expense Share of increases in the Expenses for
\neach Expense Year or portion thereof during the Lease Term after the Base
\nExpense Year when compared to Expenses for the Base Expense Year (the
\n“Expense Increases”), in advance, on or before the first day of each month
\nduring such Expense Year, in an amount estimated by Landlord in a writing
\ndelivered to Tenant. Landlord may revise such estimates from time to time and
\nTenant will thereafter make payments on the basis of such revised estimates.<\/p>\n
(d) With reasonable promptness after the expiration of
\neach Expense Year and Tax Year after the Base Expense Year and Base Tax Year,
\nincluding, without limitation, the Expense Year and Tax Year during which
\nthis Lease terminates, Landlord will furnish Tenant with a statement (herein
\ncalled “Landlord’s Expense Statement” and “Landlord’s Tax Statement”),
\nprepared by Landlord or its accountant, setting forth in reasonable detail
\nthe Expenses and Real Estate Taxes for each such Expense Year and Tax Year
\nand Tenant’s Expense Share of the Expense Increases and Tenant’s Tax Share of
\nthe Tax Increases, which statement shall be conclusive and binding upon
\nTenant, subject to Section 5(e). If the total of Tenant’s Expense Share of
\nthe Expense Increases for any such Expense Year as set forth in Landlord’s
\nExpense Statement exceeds the total estimated payments for Expense Increases
\npaid by Tenant for such Expense Year, Tenant shall pay to Landlord (whether
\nor not this Lease has terminated) the difference between the total amount of
\nestimated payments paid by Tenant with respect to Expense Increases and the
\ntotal of Tenant’s Expense Share of the actual Expense Increases within thirty
\n(30) days after the receipt of Landlord’s Expense Statement. If the total
\namount paid by Tenant for any such Expense Year shall exceed Tenant’s Expense
\nShare of the actual Expense Increases for such Expense Year, such excess
\nshall be credited against the next installment of Expenses Increases due from
\nTenant to Landlord hereunder. If this Lease has terminated and no amounts are
\ndue or are to become due to Landlord from Tenant hereunder, any excess shall
\nbe paid to Tenant by check within thirty (30) days after such final
\ndetermination of the actual Expenses. If the total of Tenant’s Tax Share of
\nthe Tax Increases for any Tax Year as set forth in Landlord’s Tax Statement
\nexceeds the total estimated payments for Tax Increases paid by Tenant for
\nsuch Tax Year, Tenant shall pay to Landlord (whether or not this Lease has
\nterminated) the difference between the total amount of estimated payments
\npaid by Tenant with respect to Tax Increases and the total of Tenant’s Tax
\nShare of the actual Tax Increases within thirty (30) days after the receipt
\nof Landlord’s Tax Statement. If the total amount paid by Tenant for any such
\nTax Year shall exceed Tenant’s Tax Share of the actual Tax Increases for such
\nTax Year, such excess shall be credited against the next installment of Tax
\nIncreases due from Tenant to Landlord hereunder. If this Lease has terminated
\nand no amounts are due or are to become due to Landlord from Tenant hereunder,
\nany excess shall be paid to Tenant by check within thirty (30) days after
\nsuch final determination of the actual Tax Increases. Notwithstanding
\nanything to the contrary contained herein, in the event that the Expenses for
\nany subsequent Expense Year are less than Expenses for the Base Expense Year
\nor in the event that the Real Estate Taxes for any subsequent Tax Year are
\nless than the Real Estate Taxes for the Base Tax Year, Tenant shall not be
\nentitled to a credit against any Base Monthly Rental or other sums payable by
\nTenant hereunder or to a payment from Landlord to Tenant with respect
\nthereto. Notwithstanding anything to the contrary contained herein, in no
\nevent shall Tenant pay for Real Estate Taxes or Expenses attributable to the
\nperiod prior to the commencement of the Lease <\/p>\n
9<\/p>\n
Term and following the Term Expiration Date, as the same may be extended
\npursuant to the terms of the Lease.<\/p>\n
(e) Tenant shall have the right, during the nine (9)
\nmonth period following delivery of a Landlord’s Expense Statement or a
\nLandlord’s Tax Statement, at Tenant’s sole cost, to review in Landlord’s
\noffices Landlord’s records of Expenses or Real Estate Taxes for the subject
\ncalendar year. Such review shall be carried out only by regular employees of
\nTenant or by a major national accounting firm and not by any other third
\nparty. No person conducting such an audit shall be compensated on a
\n“contingency” or other incentive basis. If, as of the end of the ninth (9th)
\nmonth after delivery to Tenant of a Landlord’s Expense Statement or a
\nLandlord’s Tax Statement, Tenant shall not have delivered to Landlord an
\nobjection statement (as defined below), then such Landlord’s Expense
\nStatement or Landlord’s Tax Statement shall be final and binding upon
\nLandlord and Tenant, and Tenant shall have no further right to object thereto
\nor to obtain any further review or accounting thereof, all of which rights
\nTenant expressly waives. If within such nine (9) month period, Tenant
\ndelivers to Landlord a written statement specifying objections to such
\nLandlord Expense Statement or Landlord’s Tax Statement (an “objection
\nstatement”), then Tenant and Landlord shall meet to attempt to resolve such
\nobjection within ten (10) days after delivery of the objection statement. If
\nsuch objection is not resolved within such ten (10) day period, then either
\nparty shall have the right to require that the dispute be submitted to
\nbinding arbitration under the rules of the American Arbitration Association.
\nNotwithstanding that any such dispute remains unresolved, Tenant shall be
\nobligated to pay when billed Landlord all amounts payable in accordance with
\nthis Section 5 (including any disputed amount). If such dispute results in an
\nagreement or an arbitrator’s determination that Tenant is entitled to a
\nrefund, Landlord shall, at its option, either pay such refund or credit the
\namount thereof to the monthly rental next becoming due from Tenant, or if the
\nLease has terminated, pay Tenant such refund of credit within thirty (30)
\ndays.<\/p>\n
(f) If any of the respective Rent Commencement Dates
\nor Term Expiration Date of the term shall occur on a date other than the
\nfirst or last day, respectively, of a Tax Year and\/or Expense Year, then
\nTenant’s Tax Share of the Tax Increases and\/or Tenant’s Expense Share of
\nExpense Increases for the year in which the Rent Commencement Date or Term
\nExpiration Date occurs shall be prorated based on a 365 day year , but shall
\nremain subject to adjustment based on receipt of information after the Term
\nExpiration Date.<\/p>\n
6. USE.<\/p>\n
(a) The Premises shall be used for general business
\nand professional office purposes only and for no other purpose without the
\nprior written consent of Landlord, which consent may be granted or denied in
\nLandlord’s absolute discretion. Tenant shall not do or permit to be done in
\nor about the Premises, nor bring or keep or permit to be brought or kept
\ntherein, anything which is prohibited by or would in any way conflict with
\nany law, statute, ordinance or governmental rule or regulation now in force
\nor which may hereafter be enacted or promulgated. Tenant shall not do or
\npermit anything to be done in or about the Premises which would in any way
\nobstruct or interfere with the rights of other tenants of the Building, or
\ninjure or annoy them, or use or allow the Premises to be used for any
\nimproper, immoral, unlawful or <\/p>\n
10<\/p>\n
objectionable purposes, nor shall Tenant cause, maintain or permit any
\nnuisance or waste in, on or about the Premises.<\/p>\n
(b) Tenant shall not cause or permit the storage, use,
\ngeneration, release, or disposal (collectively, “Handling”) of any Hazardous
\nMaterials (as defined below), in, on, or about the Premises or the Building
\nby Tenant or any agents, employees, contractors, licensees, subtenants,
\ncustomers, guests or invitees of Tenant (collectively with Tenant, “Tenant
\nParties”), except that Tenant shall be permitted to use normal quantities of
\noffice supplies or products (such as copier fluids or cleaning supplies)
\ncustomarily used in the conduct of general business office activities
\n(“Common Office Chemicals”), providing that the Handling of such Common
\nOffice Chemicals shall comply at all times with all Hazardous Materials Laws
\n(as defined below). Notwithstanding anything to the contrary contained
\nherein, however, in no event shall Tenant permit any usage of Common Office
\nChemicals in a manner that may cause the Premises or the Building to be
\ncontaminated by any Hazardous Materials or in violation of any Hazardous
\nMaterials Laws. Tenant’s obligations under this Section shall survive the
\nexpiration or other termination of this Lease. For purposes of this Section
\n“Hazardous Materials” means any explosive, radioactive materials, hazardous
\nwastes, or hazardous substances, including without limitation, asbestos and
\nasbestos containing materials (“ACMs”), PCBs, CFCs, or substances defined or
\nregulated as hazardous substances or hazardous materials in the Comprehensive
\nEnvironmental Response, Compensation and Liability Act of 1980, as amended,
\n42 U.S.C. Section 9601-9657; the Hazardous Materials Transportation Act of
\n1975, 42 U.S.C. Section 1001-1012; the Resource Conservation and Recovery Act
\nof 1976, 42 U.S.C. Section 6901-6987; or any other federal, state or local
\nlaw, ordinance or regulation. “Hazardous Materials Laws” shall mean all
\nfederal, state, and local laws, ordinances and regulations defining,
\nregulating, restricting or otherwise governing the storage, use, generation,
\nrelease or disapproval of Hazardous Materials.<\/p>\n
(c) Tenant shall immediately furnish Landlord with any
\n(i) notices received from any insurance company or governmental agency or
\ninspection bureau regarding any unsafe or unlawful conditions within the
\nPremises, and (ii) notices or other communications sent by or on behalf of
\nTenant to any person relating to environmental laws or hazardous substances.<\/p>\n
7. SERVICES.<\/p>\n
(a) Landlord shall maintain the public and common
\nareas of the Building, including the lobbies, stairs, internal fire-stairs,
\nelevators, corridors and rest rooms (with hot water), windows, mechanical,
\nplumbing and electrical equipment, and the roof, external walls, foundations
\nand the structure itself in reasonably good order and condition except for
\ndamage occasioned by the acts of Tenant, its employees, agents, contractors
\nor invitees, which damage shall be repaired by Landlord at Tenant’s expense.
\nTenant shall, at all times, have access to the Building, the Premises and,
\nfor those individuals with monthly parking rights, the garage, twenty four
\n(24) hours a day, seven (7) days a week during the Lease Term , and the
\nutilities and services described in this Section shall be available to Tenant
\ntwenty four (24) hours a day, seven (7) days a week. Landlord hereby agrees
\nthat it shall do all of the foregoing in a manner <\/p>\n
11<\/p>\n
consistent with the standards for other comparable first class office
\nbuildings in the financial district of San Francisco north of Market Street
\n(“Comparable Buildings”).<\/p>\n
(b) Landlord shall furnish the Premises with
\n(1) electricity for lighting and the operation of customary office machines
\nin an amount normally used for ordinary office use, (2) heat to the extent
\nreasonably required for the comfortable occupancy by Tenant in its use of the
\nPremises during the period from 7 a.m. to 6 p.m. on weekdays (except
\nholidays) (“Building Hours”), or such shorter period as may be prescribed by
\nany applicable policies or regulations adopted by any utility or governmental
\nagency, (3) elevator service, (4) lighting replacement (for building standard
\nlights), (5) restroom supplies, (6) window washing with reasonable frequency,
\nand (7) lobby attendant services and janitor service during the times and in
\nthe manner that such services are customarily furnished in comparable
\nbuildings; provided that, Landlord shall not be required to maintain any HVAC
\nsystem service to the Tenant’s server room and Tenant shall be required to
\nmaintain said service to Tenant’s server room. Landlord hereby agrees that it
\nshall furnish said services to the Building in a manner consistent with the
\nstandards for such services provided to other Comparable Buildings.<\/p>\n
(c) Landlord may establish reasonable measures to
\nconserve energy, including but not limited to, automatic switching off of
\nlights after hours, so long as such measures do not unreasonably interfere
\nwith Tenant’s use of the Premises. Except to the extent due to Landlord’s or
\nLandlord’s agents’, employees’ or contractors’ gross negligence or willful
\nmisconduct, Landlord shall not be in default hereunder or be liable for any
\ndamages directly or indirectly resulting from, nor shall the rental herein
\nreserved be abated, or this Lease terminated, by reason of (i) the
\ninstallation, use or interruption of use of any equipment in connection with
\nthe furnishing of any of the foregoing services, (ii) failure to furnish or
\ndelay in furnishing any such services or the making of necessary repairs or
\nimprovements to the Premises or to the Building, or (iii) the limitation,
\ncurtailment, rationing or restrictions on use of water, electricity, gas or
\nany other utilities serving the Premises or the Building, nor, in any event,
\nshall any such matter constitute or be construed as a constructive eviction.
\nTenant hereby waives the provisions of California Civil Code Section 1932(1)
\nor any other applicable existing or future law, ordinance or governmental
\nregulation permitting the termination of this Lease due to such failure or
\ninterruption. Landlord shall use reasonable diligent efforts to remedy any
\ninterruption in the furnishing of such services. In the event any
\ngovernmental authority or public utility promulgates or revises any law,
\nordinance, rule or regulation, or issues mandatory controls or voluntary
\ncontrols relating to the use or conservation of energy, water, gas, light or
\nelectricity, the reduction of automobile or other emissions, or the provision
\nof any other utility or service (collectively “Controls”), or in the event
\nLandlord is required or elects to make alterations to the Premises or the
\nBuilding in order to comply with such mandatory or voluntary Controls,
\nLandlord may, in its discretion, take any reasonably appropriate action to
\ncomply with such Controls or make such alterations to the Premises and\/or
\nBuilding related thereto. Such compliance and the making of such alterations
\nshall not entitle Tenant to any abatement of rent, constitute an eviction of
\nTenant, constructive or otherwise, or impose upon Landlord any liability
\nwhatsoever, including but not limited to, liability for consequential damages
\nor loss of business by Tenant. In carrying out such compliance and
\nalterations, Landlord shall use its reasonable efforts to minimize any
\ndisruptions to Tenant’s business in the Premises.<\/p>\n
12<\/p>\n
(d) Landlord shall provide twenty-four (24) hour
\nsecurity service (either manned or electronic), comparable to other
\nComparable Buildings, three hundred sixty-five (365) days per year. The
\nparties acknowledge that safety and security devices, services and programs
\nprovided by Landlord, if any, while intended to deter crime and ensure
\nsafety, may not in given instances prevent theft or other criminal acts, or
\nensure safety of persons or property. The risk that any safety or security
\ndevice, service or program may not be effective, or may malfunction, or be
\ncircumvented by a criminal, is assumed by Tenant with respect to Tenant’s
\nproperty and interests, and Tenant shall obtain insurance coverage to the
\nextent Tenant desires protection against such criminal actions and other
\nlosses, as further described in this Lease. Tenant agrees to cooperate in any
\nreasonable safety or security program developed by Landlord or required by
\nlaw. Tenant, at Tenant’s sole cost and expense, may install a security system
\nin the Premises, including an electronic, magnetic card or similar door
\naccess system, provided that said electric, magnetic card or similar door
\naccess system complies with all applicable codes, regulations and law and
\nprovided that Landlord shall have the right to approve any such system. In
\nthe event that Landlord installs an electronic, magnetic or similar door
\nsystem, Landlord shall use reasonable efforts to inform Tenant about said
\nsystem and discuss and compare said system with any similar system of
\nTenant’s; provided that, said information and discussion shall in no way
\nincrease Landlord’s responsibility or obligations with respect to the
\nsecurity of the Building or Premises.<\/p>\n
(e) Whenever heat-generating equipment or lighting
\nother than building standard lights are used in the Premises by Tenant in
\nexcess of ordinary office use, Landlord shall have the right, after notice to
\nTenant, to install supplementary air conditioning facilities in the Premises
\nor otherwise modify the ventilating and air conditioning system serving the
\nPremises, and the cost of such facilities and modifications shall be borne by
\nTenant.<\/p>\n
(f) Landlord makes no representation to Tenant
\nregarding the adequacy or fitness of the heating or ventilation equipment in
\nthe Building to maintain temperatures that may be required for, or because
\nof, any of Tenant’s equipment which uses other than the fractional horsepower
\nnormally required for office equipment, and Landlord shall have no liability
\nfor loss or damage suffered by Tenant or others in connection therewith.
\nLandlord shall provide up to five (5) watts of electrical current per
\nrentable square foot, exclusive of lighting and life safety systems (the
\n“Electrical Allowance”); provided, however, (i) without Landlord’s consent,
\nTenant shall not install, or permit the installation, in the Premises of any
\ntype of equipment or machines which will increase Tenant’s use of electric
\ncurrent in excess of that which Landlord is obligated to provide hereunder
\n(provided the foregoing shall not preclude the use of personal computers or
\nsimilar office equipment); (ii) if Tenant shall require electric current in
\nexcess of the Electrical Allowance, Landlord may condition its consent upon
\nTenant’s payment of the cost of installing and providing any additional
\nfacilities required to furnish such excess power to the Premises and upon the
\ninstallation in the Premises of electric current meters to measure the amount
\nof electric current consumed, in which latter event Tenant shall pay for the
\ncost of such meter(s) and the cost of installation, maintenance and repair
\nthereof, as well as for all excess electric current consumed at the rates
\ncharged by the applicable local public utility, plus a reasonable amount to
\ncover the additional expenses incurred by Landlord in keeping account of the
\nelectric current so consumed; (iii) if Tenant’s increased electrical
\nrequirements materially affect the temperature <\/p>\n
13<\/p>\n
level in the Premises or the Building, Landlord’s consent may be conditioned
\nupon Tenant’s requirement to pay such amounts as will be incurred by Landlord
\nto install and operate any machinery or equipment necessary to restore the
\ntemperature level to that otherwise required to be provided by Landlord,
\nincluding but not limited to the cost of modifications to the air
\nconditioning system, if any, in other parts of the Building. Landlord shall
\nnot, in any way, be liable or responsible to Tenant for any loss or damage or
\nexpense which Tenant may incur or sustain if, for any reasons beyond
\nLandlord’s reasonable control, either the quantity or character of electric
\nservice is changed or is no longer available or suitable for Tenant’s
\nrequirements. Tenant covenants that at all times its use of electric current
\nshall never exceed the capacity of the feeders, risers or electrical
\ninstallations of the Building. If submetering of electricity in the Building
\nwill not be permitted under future laws or regulations, the Base Monthly
\nRental will then be equitably adjusted to include an additional payment to
\nLandlord reflecting the cost to Landlord for furnishing electricity to the
\nPremises. Any amounts which Tenant is required to pay pursuant to this
\nSection shall be payable upon demand by Landlord and shall constitute
\nadditional rent.<\/p>\n
(g) In the event that Landlord, at Tenant’s request,
\nprovides services to Tenant that are not otherwise provided for in this Lease
\n(including electrical power or heating at times other than Building Hours or
\nin amounts in excess of the Electrical Allowance), Tenant shall pay
\nLandlord’s reasonable charges for such services upon billing therefor,
\nincluding, without limitation, Landlord’s then current administrative fee
\ntherefor. Currently, the cost for HVAC outside of Business Hours, is
\napproximately sixty dollars ($60) per hour, which cost is subject to
\nadjustment by Landlord from time to time in Landlord’s reasonable discretion.
\nAny such request for extra services shall be made not less than twenty-four
\n(24) hours in advance.<\/p>\n
8. TENANT REMEDIES.<\/p>\n
(a) Notwithstanding any contrary provision of this
\nLease, in the event that there is a water leak into the Tenant’s server room,
\nfor a reason not caused by the acts of Tenant (“Water Leak”), Tenant shall
\npromptly provide written notice of a Water Leak as set forth in Section 8(c)
\nbelow (“Water Leak Notice”). If the Water Leak Notice is delivered to
\nLandlord during Building Hours, Landlord shall have four (4) hours to
\ncommence curing said Water Leak and shall thereafter diligently pursue such
\ncure to completion using commercially reasonable efforts, subject to Force
\nMajeure Events. If the Water Leak Notice is delivered to Landlord outside of
\nBuilding Hours, Landlord shall have until the next business day, but in no
\nevent longer than eight (8) hours, to commence curing said Water Leak and
\nshall diligently pursue such cure to completion using commercially reasonable
\nefforts, subject to Force Majeure Events. In the event that the Landlord
\nfails to commence the cure of a Water Leak within the applicable cure
\ncommencement period as extended by Force Majeure Events, Tenant shall be
\nentitled to undertake such commercially reasonable efforts as are reasonably
\nnecessary to cure the Water Leak. Subject to the rights of other tenants in
\nthe Building, Tenant shall have the right to enter such portions of the
\nBuilding as may be reasonably required to effectuate any reasonable cure of
\nsuch Water Leak, provided that (i) Tenant shall use all reasonable efforts to
\ninclude the Building manager or Building personnel in connection with the
\nentry into any portions of the Building outside of the Premises, and (ii)
\nTenant shall repair any damage caused by any such repair <\/p>\n
14<\/p>\n
activities of Tenant and shall indemnify and hold Landlord harmless from any
\nclaims, including any related attorneys fees, by other tenants in the
\nBuilding for damage to persons or property resulting from such activities of
\nTenant. Tenant shall be entitled to reimbursement for the sums reasonably
\nexpended by Tenant to effectuate such cure within thirty (30) days after
\nsubmitting a written invoice of said sums to Landlord. If Landlord fails to
\nreimburse Tenant within said thirty (30) days, Tenant shall be entitled to
\noffset said sums from its Base Monthly Rental; provided that, if Landlord
\ndisputes the amount of such claim for reimbursement, Landlord shall give
\nTenant written notice of such dispute prior to the end of such thirty (30)
\nday period in which event Landlord and Tenant shall meet and confer on not
\nless than two (2) occasions (at a mutually agreeable time and place in
\nSan Francisco, California) in the ensuing sixty (60) days in an attempt to
\nresolve such dispute and Tenant shall not offset said sums until ninety (90)
\ndays after the date of submission of such written invoice. Notwithstanding
\nanything to the contrary contained herein, nothing contained in this
\nsubsection or elsewhere in this Lease shall be construed in any way to make
\nLandlord liable to Tenant in any way for a Water Leak which is caused by
\nForce Majeure Events.<\/p>\n
(b) Notwithstanding any contrary provision of this
\nLease, in the event that there is a failure in supply of electrical power to
\nthe Premises or a telecommunications or data interruption in the Premises,
\nfor a reason not caused by the acts of Tenant (“Communication Failure”),
\nTenant shall promptly provide written notice of a Communication Failure as
\nset forth in Section 8(c) below (“Communication Failure Notice”). If the
\nCommunication Failure Notice is delivered to Landlord during Building Hours,
\nLandlord shall have four (4) hours to commence curing said Communication
\nFailure and shall thereafter diligently pursue such cure to completion using
\ncommercially reasonable efforts, subject to Force Majeure Events. If the
\nCommunication Failure Notice is delivered to Landlord outside of Building
\nHours, Landlord shall have until the next business day, but in no event
\nlonger than eight (8) hours, to commence curing said Communication Failure
\nand shall diligently pursue such cure to completion using commercially
\nreasonable efforts, subject to Force Majeure Events. In the event that the
\nLandlord fails to commence the cure of a Communication Failure within the
\napplicable cure commencement period as extended by Force Majeure Events,
\nTenant shall be entitled to undertake such commercially reasonable efforts as
\nare reasonably necessary to cure the Communication Failure. Subject to the
\nrights of other tenants in the Building, Tenant shall have the right to enter
\nsuch portions of the Building as may be reasonably required to effectuate any
\nreasonable cure of such Communication Failure, provided that (i) Tenant shall
\nuse all reasonable efforts to include the Building manager or Building
\npersonnel in connection with the entry into any portions of the Building
\noutside of the Premises, and (ii) Tenant shall repair any damage caused by
\nany such repair activities of Tenant and shall indemnify and hold Landlord
\nharmless from any claims, including any related attorneys fees, by other
\ntenants in the Building for damage to persons or property resulting from such
\nactivities of Tenant. Tenant shall be entitled to reimbursement for the sums
\nreasonably expended by Tenant to effectuate such cure within thirty (30) days
\nafter submitting a written invoice of said sums to Landlord. If Landlord
\nfails to reimburse Tenant within said thirty (30) days, Tenant shall be
\nentitled to offset said sums from its Base Monthly Rental; provided that, if
\nLandlord disputes the amount of such claim for reimbursement, Landlord shall
\ngive Tenant written notice of such dispute prior to the end of such thirty
\n(30) day period in which event Landlord and Tenant shall meet and confer on
\nnot less than two (2) <\/p>\n
15<\/p>\n
occasions (at a mutually agreeable time and place in San Francisco,
\nCalifornia) in the ensuing sixty (60) days in an attempt to resolve such
\ndispute and Tenant shall not offset said sums until ninety (90) days after
\nthe date of submission of such written invoice. Notwithstanding anything to
\nthe contrary contained herein, nothing contained in this subsection or
\nelsewhere in this Lease shall be construed in any way to make Landlord liable
\nto Tenant in any way for a Communication Failure which is caused by Force
\nMajeure Events.<\/p>\n
(c) For purposes of Section 8, during Building Hours,
\nTenant shall provide written notice to the Building Manager or Building Chief
\nEngineer and outside of Building Hours, Tenant shall provide written notice
\nto the Building Manager, Building Chief Engineer or the Building security
\nguard in the main lobby.<\/p>\n
9. IMPOSITIONS PAYABLE BY TENANT. In addition to the monthly
\nrental and other charges to be paid by Tenant hereunder, Tenant shall pay or
\nreimburse Landlord for any and all of the following items (hereinafter
\ncollectively referred to as “Impositions”), whether or not now customary or
\nin the contemplation of the parties hereto: taxes (other than local, state
\nand federal personal or corporate income or franchise taxes measured by the
\nnet income of Landlord from all sources), assessments (including, without
\nlimitation, all assessments for public improvements, services or benefits,
\nirrespective of when commenced or completed), excises, levies, business
\ntaxes, license, permit, inspection and other authorization fees, transit
\ndevelopment fees, assessments or charges for housing funds, service payments
\nin lieu of taxes and any other fees or charges of any kind, which are levied,
\nassessed, confirmed or imposed by any public authority, but only to the
\nextent the Impositions are: (a) upon, measured by or reasonably attributable
\nto the cost or value of Tenant’s equipment, furniture, fixtures and other
\npersonal property located in the Premises, or the cost or value of any
\nleasehold improvements made in or to the Premises by or for Tenant,
\nregardless of whether title to such improvements (b) upon, with respect to or
\nby reason of the development, possession, leasing, operation, management,
\nmaintenance, alteration, repair, use or occupancy by Tenant of the Premises
\nor (c) upon this transaction or any document to which Tenant is a party
\ncreating or transferring an interest or an estate in the Premises (including
\nany sales, excise or gross receipts tax measured by the rental payable
\nhereunder). In the event that it shall not be lawful for Tenant to reimburse
\nLandlord for the Impositions but it is lawful to increase the monthly rental
\nto take into account Landlord’s payment of the Impositions, the monthly
\nrental payable to Landlord shall be revised to net Landlord the same net
\nreturn without reimbursement of the Impositions as would have been received
\nby Landlord with reimbursement of the Impositions.<\/p>\n
10. ALTERATIONS.<\/p>\n
(a) Tenant may make alterations, additions or
\nimprovements (collectively, “Alterations”) to the Premises or install
\nfixtures in the Premises after first obtaining Landlord’s consent, which
\nconsent shall not be unreasonably withheld; provided however, that it shall
\nbe deemed reasonable for Landlord to withhold its consent if: (a) the cost of
\nthe work will exceed Two Hundred Fifty Thousand Dollars ($250,000) (b) a
\nbuilding permit will be required; or (c) if there will be any material
\nmodifications to any exterior or structural components of the Building or any
\nof the Building’s operating systems, including, without limitation, heating,
\nventilating, air <\/p>\n
16<\/p>\n
conditioning, plumbing, electrical, and other operating systems.
\nNotwithstanding the foregoing, Tenant may make any Alterations which are
\ncosmetic (e.g. minor painting, changes of floor coverings or wall coverings,
\ninstallation of artwork or decorations, etc.), without Landlord’s consent
\nbeing required, provided such cosmetic alterations do not require a building
\npermit and do not effect the exterior of the Building or the structural or
\nmechanical components of the Building. Upon Tenant’s written request for
\nLandlord’s consent to certain Alterations pursuant to this Section, Landlord
\nshall have thirty (30) days from the date on which Landlord receives all
\ninformation reasonably required by Landlord for Landlord’s review of said
\nrequest to provide Tenant with notice of Landlord’s consent or withholding of
\nconsent to Tenant’s request (along with a written description of Landlord’s
\nreason(s) for withholding of consent, if applicable). In the event that
\nLandlord elects to and has a right to oversee (or cause to be overseen)
\nTenant’s requested Alteration(s), Landlord shall provide Tenant with notice
\nof such election within said thirty (30) day period. In connection with
\nTenant’s request for Landlord’s consent under this Lease, Tenant shall
\npre-pay to Landlord the sum of Two Hundred Fifty Dollars ($250.00) for
\nLandlord’s review of applicable documents and plans. Tenant also shall
\nreimburse Landlord for any third-party costs and expenses incurred or to be
\nincurred by Landlord related to such review within ten (10) days of receipt
\nof Landlord’s statement therefor. Furthermore, in the event Landlord may
\nelect to oversee, or cause to be overseen, such Alterations, Landlord shall
\nbe entitled to receive a fee for such oversight in an amount equal to three
\n(3%) of the cost of such alterations, additions or improvements. Landlord’s
\nreview and approval of Tenant’s plans and specifications for any work
\nperformed for or on behalf of Tenant shall not be deemed to be a
\nrepresentation by Landlord that such plans and specifications comply with
\napplicable insurance requirements, building codes, ordinances, laws or
\nregulations including, without limitation, the provisions of the Americans
\nWith Disabilities Act, 42. U.S.C. 12101 et seq. and any governmental
\nregulations with respect thereof (the “ADA”) and Title 24 of the California
\nAdministrative Code (“Title 24”), and other similar federal, state, and local
\nlaws and regulations or that the Alterations are constructed in accordance
\nwith such plans and specifications or that such plans and specifications will
\nbe adequate for Tenant’s use. In no event, however, may the Tenant make any
\nAlterations or install fixtures which, in Landlord’s reasonable judgment,
\nmight adversely affect the structural components of the Building or Building
\nmechanical, utility or life safety systems. At the time such consent is
\nrequested, Tenant shall furnish to Landlord a description of the proposed
\nwork, an estimate of the cost thereof and such information as shall
\nreasonably be requested by Landlord substantiating Tenant’s ability to pay
\nfor such work. Landlord, at its sole option, may require as a condition to
\nthe granting of such consent to any work costing in excess of Five Hundred
\nThousand Dollars ($500,000), that Tenant provide to Landlord, at Tenant’s
\nsole cost and expense, a lien and completion bond in an amount equal to one
\nand one-half (1-1\/2) times any and all estimated costs of the proposed work,
\nto insure Landlord against any liability for mechanics’ and materialmen’s
\nliens and to insure completion of the work. Before commencing any work,
\nTenant shall give Landlord at least twenty (20) days written notice of the
\nproposed commencement of such work in order to give Landlord an opportunity
\nto prepare, post and record such notice as may be permitted by law to protect
\nLandlord’s interest in the Premises and the Building from mechanics’ and
\nmaterialmen’s liens. Within a reasonable period following completion of any
\nwork for which plans and specifications were required to obtain a building
\npermit for such work, Tenant shall furnish to Landlord “as built” plans
\nshowing the changes made to the Premises.<\/p>\n
17<\/p>\n
(b) All Alterations shall be constructed in a good and
\nworkmanlike manner using building standard materials or other new materials
\nof equal or greater. Landlord, to the extent necessary to avoid any
\ndisruption to the tenants and occupants of the Building, shall have the right
\nto designate the reasonable times when any such Alterations may be performed
\n(Tenant hereby agrees that it is reasonable for Landlord to require
\nAlterations to be performed on nights and weekends) and to otherwise
\ndesignate reasonable rules, regulations, and procedures for the performance
\nof work in the Building. Any Alterations to the Premises shall be made by
\nTenant at Tenant’s sole cost and expense, and any contractor, subcontractor
\nor other person selected by Tenant to make the same shall be selected from
\nLandlord’s approved bidder list. Tenant’s contractor and its subcontractors
\nshall employ union labor to the extent necessary to insure, so far as may be
\npossible, the progress of the Alterations and the performance of any other
\nwork or the provision of any services in the Building without interruption on
\naccount of strikes, work stoppage or similar causes of delay. All work
\nperformed by Tenant shall comply with the laws, rules, orders, directions,
\nregulations and requirements of all governmental entities having jurisdiction
\nover such work including, without limitation, any laws, regulations or
\nrequirements respecting asbestos or ACMs, the ADA and Title 24 and shall
\ncomply with the rules, orders, directions, regulations and requirements of
\nany nationally recognized board of insurance underwriters. All Alterations
\nshall immediately become Landlord’s property and shall remain on the Premises
\nwithout compensation to Tenant; provided, however, that unless Landlord has
\npreviously agreed in writing that an Alteration does not have to be removed
\nby Tenant at the end of the Lease Term, Tenant shall, prior to the end of the
\nLease Term, at its sole cost and expense, remove the Alterations required to
\nbe removed by Landlord and repair and restore the Premises to their condition
\nat the commencement of the Lease Term. At the time that Tenant requests
\nLandlord’s consent to an Alteration(s), Tenant may also request and require
\nthat Landlord determine whether said Alteration(s) must be removed by Tenant
\nat the end of the Lease Term. If so requested by Tenant, Landlord shall
\nprovide notice to Tenant of the Alteration(s) that Tenant is required to
\nremove at the end of the Lease Term simultaneous with Landlord’s consent to
\nsaid Alteration(s), if Landlord’s consent is given. In the event that
\nLandlord determines that an Alteration(s) must be removed by Tenant at the
\nend of the Lease Term, Tenant shall remove said Alteration(s) at Tenant’s
\nsole cost and expense and repair and restore the Premises to their condition
\nprior to said Alteration.<\/p>\n
(c) Tenant may, in a manner consistent with the
\nprovisions of this Lease, install, maintain, replace, remove or use any
\ncommunications or computer wires, cables, and related devices (collectively,
\nthe “Lines”) at the Building in or serving the Premises, provided: (i) Tenant
\nshall obtain Landlord’s prior written consent, which consent may be
\nconditioned as reasonably required by Landlord, (ii) if Tenant at any time
\nuses any equipment that may create an electromagnetic field exceeding the
\nnormal insulation ratings of ordinary twisted pair riser cable or cause
\nradiation higher than normal background radiation, the Lines therefor
\n(including riser cables) shall be appropriately insulated to prevent such
\nexcessive electromagnetic fields or radiation, and (iii) Tenant shall pay all
\ncosts in connection therewith. Landlord reserves the right to require that
\nTenant remove any Lines which are installed in violation of these provisions.
\nLandlord may (but shall not have the obligation to): (i) install new Lines at
\nthe Property, and (ii) create additional space for Lines at the Property, and
\n(iii) adopt reasonable and uniform rules and regulations with respect to
\nLines.<\/p>\n
18<\/p>\n
Notwithstanding anything to the contrary contained in this Lease,
\nLandlord reserves the right to require Tenant to remove any or all Lines
\ninstalled by or for Tenant within or serving the Premises upon the Expiration
\nDate or earlier termination of this Lease. Tenant shall not, without the
\nprior written consent of Landlord in each instance, grant to any third party
\na security interest or lien in or on the Lines, and any such security
\ninterest or lien granted without Landlord’s written consent shall be null and
\nvoid. Except to the extent arising from the gross negligence or intentional
\nacts of Landlord, Landlord or Landlord’s agents or employees, Landlord shall
\nhave no liability for damages arising from, and Landlord does not warrant
\nthat Tenant’s use of any Lines will be free from the following (collectively
\n“Line Problems”): (i) any eavesdropping or wire-tapping by unauthorized
\nparties, or (ii) any failure of any lines to satisfy Tenant’s requirements.
\nExcept to the extent arising from the Landlord’s breach of Section 21(b) of
\nthis Lease, or the gross negligence or intentional acts of Landlord or
\nLandlord’s agents or employees, Landlord shall have no liability for damages
\narising from, and Landlord does not warrant that Tenant’s use of any Lines
\nwill be free from any shortages, failures, variations, interruptions,
\ndisconnections, loss or damage caused by the installation, maintenance,
\nreplacement, use or removal of lines by or for other tenants or occupants at
\nthe Property. Under no circumstances shall any Line Problems be deemed an
\nactual or constructive eviction of Tenant, render Landlord liable to Tenant
\nfor abatement of Base Monthly Rental, or relieve Tenant from performance of
\nTenant’s obligations under this Lease. Landlord in no event shall be liable
\nfor damages by reason of loss of profits, business interruption or other
\nconsequential damages arising from any Line Problems.<\/p>\n
11. LIENS. Tenant shall pay when due all costs for work
\nperformed and materials supplied to the Premises. Tenant shall keep Landlord,
\nthe Premises and the Building free from all liens, stop notices and violation
\nnotices relating to the work performed, materials furnished or obligations
\nincurred by or for Tenant and Tenant shall protect, indemnify, hold harmless
\nand defend Landlord, the Premises and the Building of and from any and all
\nloss, cost, damage, liability and expense, including attorney’s fees and
\ncosts, arising out of or related to any such liens or notices. During the
\nprogress of such work, Tenant shall, upon Landlord’s request, furnish
\nLandlord with sworn contractor’s statements and lien waivers covering all
\nwork theretofore performed. Tenant shall satisfy or otherwise discharge all
\nliens, stop notices or other claims or encumbrances within twenty (20) days
\nafter Tenant obtains knowledge that any such lien, stop notice, claim or
\nencumbrance has been filed. If Tenant fails to pay and remove such lien,
\nclaim or encumbrance within such twenty (20) days, or Tenant fails to
\ndiligently pursue, discharge or satisfy said lien, stop notice, claim or
\nencumbrance, Landlord, at its election, may pay and satisfy the same and in
\nsuch event the sums so paid by Landlord, with interest from the date of
\npayment as set forth in Section 3(e) hereof for amounts owed Landlord by
\nTenant, shall be deemed additional rent due and payable by Tenant at once
\nwithout notice or demand. Notwithstanding the foregoing, if Tenant is
\ncontesting any mechanics lien and provides to Landlord a bond reasonably
\nsatisfactory to Landlord and sufficient to remove the lien of record under
\nCalifornia law, Landlord shall have no right to pay such lien after said bond
\nhas been provided to Landlord.<\/p>\n
19<\/p>\n
12. REPAIRS; CONDITION OF PREMISES.<\/p>\n
(a) Subject to the Work Letter, by entry hereunder,
\nTenant accepts the Premises as being in the condition in which Landlord is
\nobligated to deliver the Premises. Subject to the Work Letter, Tenant shall,
\nat all times during the term hereof and at Tenant’s sole cost and expense,
\nkeep the Premises in good condition and repair, in compliance with all laws,
\nincluding without limitation, the ADA and Title 24 (as defined hereafter);
\nordinary wear and tear and damage thereto by fire, earthquake, act of God or
\nthe elements excepted. Tenant hereby waives all rights to make repairs at the
\nexpense of Landlord or in lieu thereof to vacate the Premises, abate rent or
\nterminate this Lease. Subject to the Work Letter, and subject to Landlord’s
\nrights to require the removal of Alterations, Tenant shall at the end of the
\nterm hereof surrender to Landlord the Premises and all Alterations thereto in
\nthe same condition as when received, ordinary wear and tear and damage by
\nfire, earthquake, act of God or the elements excepted. Landlord has no
\nobligation and has made no promise to alter, remodel, improve, repair,
\ndecorate or paint the Premises or any part thereof, except as specifically
\nherein set forth. No representations respecting the condition of the Premises
\nor the Building have been made by Landlord or Landlord’s agents to Tenant,
\nexcept as specifically herein set forth.<\/p>\n
(b) Subject to the Work Letter, Tenant has examined
\nthe Premises and is fully informed to Tenant’s satisfaction of the physical
\nand environmental condition and the utility of the Premises. Tenant
\nacknowledges that Landlord, its agents and employees and other persons acting
\non behalf of Landlord have made no representation or warranty of any kind,
\nexpress or implied, with respect to: (i) the physical or environmental
\ncondition, value, zoning or legal status or the Building; (ii) the fitness of
\nthe Premises for Tenant’s intended use; (iii) the degree of sound transfer
\nwithin the Building; (iv) the absence of electrical or radio interference in
\nthe Premises or the Building; (v) the condition, capacity or performance of
\nelectrical or communications systems or facilities; or (vi) the absence of
\nobjectionable odors, bright lights or other conditions which may affect
\nTenant’s use and enjoyment of the Premises or the Building, upon which Tenant
\nhas relied directly or indirectly for any purpose, except as specifically set
\nforth in this Lease.<\/p>\n
13. DESTRUCTION OR DAMAGE.<\/p>\n
(a) In the event the Premises or the portion of the
\nBuilding necessary for Tenant’s use and enjoyment of the Premises are damaged
\nby fire, earthquake, act of God, the elements or other casualty, Landlord
\nshall repair the same (including the Tenant Work in the portion of the
\nPremises damaged to the extent of the actual cost of said Tenant Work, but
\nnot to exceed the Tenant Improvement Allowance plus an additional Five
\nDollars ($5.00) per rentable square foot for the portion of the Premises so
\ndamaged), subject to the provisions of this Section hereinafter set forth, if
\n(i) such repairs can, in Landlord’s reasonable opinion, be made within a
\nperiod of twelve (12) months after the date of casualty, (ii) the cost of
\nrepairing damage for which Landlord is not insured shall be less than five
\npercent (5%) of the then full insurable value of the Premises with respect to
\nrepairing any damage to the Premises, or five percent (5%) of the then full
\ninsurable value of the Building with respect to repairing any damage to other
\nareas of the Building, (iii) the damage or destruction does not occur during
\nthe last twelve (12) months of <\/p>\n
20<\/p>\n
the Lease Term as the same may be extended under the terms of this Lease
\n(said twelve (12) months shall be measured after taking into account any
\nextension of the Lease Term under the terms of this Lease), and (iv)
\nLandlord’s mortgagee does not require that the insurance proceeds payable as
\na result of a casualty be applied to the payment of the mortgage debt. This
\nLease shall remain in full force and effect except that so long as the damage
\nor destruction is not caused by the negligence or fault of Tenant, its
\ncontractors, agents, employees or invitees, an abatement of monthly rental
\nshall be allowed Tenant for such part of the Premises as shall be rendered
\nunusable by Tenant in the conduct of its business during the time such part
\nis so unusable and Tenant does not actually occupy such part.<\/p>\n
(b) As soon as is reasonably possible following the
\noccurrence of any damage, Landlord shall notify Tenant of the estimated time and
\ncost required for the repair or restoration of the Premises or the portion of
\nthe Building necessary for Tenant’s occupancy (including the Tenant Work in the
\nportion of the Premises damaged to the extent of the actual cost of said Tenant
\nWork, but not to exceed the Tenant Improvement Allowance plus an additional Five
\nDollars ($5.00) per rentable square foot for the portion of the Premises so
\ndamaged). If, in Landlord’s reasonable opinion, such repairs cannot be made
\nwithin twelve (12) months as set forth in Section 13(a)(i) above, Landlord or
\nTenant may elect by written notice to the other within thirty (30) days after
\nLandlord’s notice of estimated time and cost is given (i) in the event of damage
\nor destruction to two entire floors in the Premises or less, to terminate this
\nLease only as to the portion of the Premises damaged or destroyed, effective as
\nof the date of such damage, or (ii) in the event of damage or destruction to
\nmore than two floors in the Premises, to terminate this Lease effective as of
\nthe date of such damage. If Landlord is not obligated to effect the repair based
\nupon the circumstances set forth in Sections 13(a)(ii) or 13(a)(iii) above,
\nLandlord shall have the right to terminate this Lease, by written notice to
\nTenant within thirty (30) days after Landlord’s notice of time and cost is
\ngiven, effective as of the date of such damage or destruction. If neither party
\nso elects to terminate this Lease, this Lease shall continue in full force and
\neffect, but the rent shall be partially abated as provided in Section 13(a)
\nabove, and Landlord shall proceed with reasonable promptness to repair such
\ndamage.<\/p>\n
(c) A total destruction of the Building shall
\nautomatically terminate this Lease. Tenant hereby waives all statutory rights of
\ntermination, including any such rights under California Civil Code Section 1933.<\/p>\n
(d) In no event shall Tenant be entitled to any
\ncompensation or damages from Landlord, specifically including, but not limited
\nto, any compensation or damages for (i) loss of the use of the whole or any part
\nof the Premises, (ii) damage to Tenant’s personal property in or improvements to
\nthe Premises, or (iii) any inconvenience, annoyance or expense occasioned by
\nsuch damage or repair (including moving expenses and the expense of establishing
\nand maintaining any temporary facilities).<\/p>\n
(e) Landlord, in repairing the Premises, shall not be
\nrequired to repair any injury or damage to the personal property of Tenant, or
\nto make any repairs to or replacement of any alterations, additions,
\nimprovements or fixtures installed on the Premises by or for Tenant, except the
\nTenant Work to the extent of the actual cost of the Tenant Work, not to exceed
\nthe <\/p>\n
21<\/p>\n
Tenant Improvement Allowance plus an additional Five Dollars ($5.00) per
\nrentable square foot for the portion of the Premises so damaged.<\/p>\n
14. INSURANCE.<\/p>\n
(a) Tenant shall, at its sole cost and expense, during
\nthe Lease Term, cause all improvements at any time located in the Premises
\n(other than Tenant Work to the extent of the actual cost thereof not to exceed
\nthe Tenant Improvement Allowance plus an additional five dollars ($5.00) per
\nrentable square foot of the Premises) and all equipment and fixtures from time
\nto time used or intended to be used in connection with the operation and
\nmaintenance of the Premises, to be insured for the mutual benefit of Landlord
\nand Tenant against loss or damage by fire and against loss or damage by other
\nrisks now or hereafter included in an All-Risk insurance policy, in an amount
\nequal to the full insurable value thereof. All proceeds from such insurance
\nshall be used for the repair or replacement of such improvements, equipment and
\nfixtures.<\/p>\n
(b) All coverage shall be written on an occurrence basis
\nand shall be primary and non-contributory over any insurance the Landlord may
\nelect to provide on its behalf. Upon the commencement of the Lease Term, and
\nupon renewal of such insurance coverage, Tenant shall deliver to the Landlord
\ncertified copies of Tenant’s insurance policies, or an original certificate of
\nsuch insurance from the insurer providing a minimum of thirty (30) days’ notice
\nof cancellation or modification. In the event Tenant shall fail to procure such
\ninsurance or to deliver such policies and certificates, Landlord may, at
\nLandlord’s option and in addition to Landlord’s other remedies in the event of a
\ndefault by Tenant hereunder, procure the same for the account of Tenant, and the
\ncost thereof shall be paid to Landlord as additional rent. All policies of
\ninsurance required to be carried by Tenant under this Section 14 shall be in
\nform reasonably satisfactory to Landlord and, except for workers compensation,
\nbusiness interruption and property, shall name Landlord, Landlord’s mortgagee,
\nLandlord’s managing agent and any other party designated by Landlord as
\nadditional insureds. All policies of insurance required by Landlord under this
\nLease shall be issued by responsible insurance companies which are licensed to
\ndo business in the State of California, and shall have a Best’s rating of at
\nleast “A-” and a financial rating of not less than “X” and have been approved in
\nwriting by Landlord. The Commercial General Liability policy shall contain
\ncross-liability endorsements or its equivalent, and shall be for the mutual and
\njoint benefit and protection of Landlord, Tenant and any other party designated
\nby Landlord as an additional insured.<\/p>\n
Notwithstanding any other provisions of this Lease, Tenant, at its own
\nexpense, shall also maintain the following insurance coverage:<\/p>\n
(i) WORKER’S COMPENSATION AND EMPLOYER’S
\nLIABILITY. Tenant shall maintain Worker’s Compensation insurance sufficient to
\ncomply with all applicable State and\/or Federal laws and an Employer’s Liability
\npolicy with a limit of not less than One Million Dollars ($1,000,000.00).<\/p>\n
(ii) COMMERCIAL GENERAL LIABILITY. Tenant shall
\nmaintain a Commercial General Liability policy applying to the use and occupancy
\nof the Premises and the Building, and any part of either, and any areas adjacent
\nthereto, and the business operated by <\/p>\n
22<\/p>\n
Tenant, or by any other occupant of the Premises with limits of liability not
\nless than Two Million Dollars ($2,000,000.00) per occurrence and Three
\nMillion Dollars ($3,000,000.00) general aggregate for Bodily Injury and
\nProperty Damage and Three Million Dollars ($3,000,000.00) aggregate
\nproducts\/completed operations coverage. Such policy shall specifically name
\nthe Landlord, Landlord’s mortgagee and Landlord’s managing agent as
\nadditional insureds. All such insurance shall provide for severability of
\ninterests; shall provide that an act or omission of one of the named insureds
\nshall not reduce or avoid coverage to the other named insureds; and shall
\nafford coverage for all claims based on acts, omissions, injury and damage,
\nwhich claims occurred or arose (or the onset of which occurred or arose) in
\nwhole or in part during the policy period. Tenant’s Commercial General
\nLiability policy shall not provide for a deductible in excess of Two Hundred
\nThousand Dollars ($200,000) without the prior written approval of Landlord
\nwhich shall not be unreasonably withheld. The amounts of insurance required
\nin this Section 14(b)(ii) may be satisfied by purchasing coverage for the
\nlimits specified or by a combination of underlying and umbrella limits, so
\nlong as the total amount of insurance is not less than the limits specified.<\/p>\n
(iii) BUSINESS INTERRUPTION. Tenant shall also
\nmaintain a policy of (or obtain an endorsement providing) business interruption
\ninsurance insuring Tenant against losses from interruption of its use of the
\nPremises for any reason with coverage for a period of not less than one (1)
\nyear.<\/p>\n
(iv) PROPERTY INSURANCE. Tenant shall, at its
\nsole cost and expense, during the Lease Term, cause all improvements at any time
\nlocated in the Premises (other than the Building standard tenant improvements)
\nand all equipment and fixtures from time to time used or intended to be used in
\nconnection with the operation and maintenance of the Premises, to be insured for
\nthe mutual benefit of Landlord and Tenant against loss or damage by fire and
\nagainst loss or damage by other risks now or hereafter included in an All-Risk
\ninsurance policy, in an amount equal to the full insurable value thereof. All
\nproceeds from such insurance shall be used for the repair or replacement of such
\nimprovements, equipment and fixtures. Tenant’s property policy shall not provide
\nfor a deductible in excess of One Hundred Thousand Dollars ($100,000) without
\nthe prior written approval of Landlord which shall not be unreasonably withheld.<\/p>\n
(v) ADDITIONAL INSURANCE. Whenever good business
\npractice, in Landlord’s reasonable judgment, indicates the need for additional
\ninsurance coverage or different types of insurance in connection with the
\nPremises or Tenant’s use and occupancy thereof, Tenant shall, upon request,
\nobtain such insurance at Tenant’s expense and provide Landlord with evidence
\nthereof.<\/p>\n
(c) Before any repairs, alterations, additions,
\nimprovements, or construction are undertaken by or on behalf of Tenant, Tenant
\nshall carry and maintain at its expense, or Tenant shall require any contractor
\nperforming work in the Premises to carry and maintain, at no expense to
\nLandlord, in addition to workers’ compensation insurance as required by the
\njurisdiction in which the Building is located, All Risk Builder’s Risk Insurance
\nin the amount of the replacement cost of any alterations, additions or
\nimprovements (or such other amount <\/p>\n
23<\/p>\n
reasonably required by Landlord) and Commercial General Liability Insurance
\n(including, without limitation, Contractor’s Liability coverage), written on
\nan occurrence basis with a minimum combined single limit of $2,000,000.00 and
\nadding the “owners of the Building and its (or their) respective members,
\nprincipals, beneficiaries, partners, officers, directors, employees, managing
\nagents, agents (and their respective members and principals) and
\nmortgagee(s)” (and any other designees of Landlord as the interest of such
\ndesignees shall appear) as additional insureds.<\/p>\n
(d) Tenant shall not do or fail to do anything in, upon
\nor about the Premises which will: (i) violate the terms of any of Landlord’s
\ninsurance policies; (ii) prevent Landlord from obtaining policies of insurance
\nacceptable to Landlord or any mortgagees; or (iii) result in an increase in the
\nrate of any insurance on the Premises, the Building, any other property of
\nLandlord or of others in the Building. In the event of the occurrence of any of
\nthe events set forth in this Section 14(d), Tenant shall pay Landlord, upon
\ndemand, as additional rent, the cost of the amount of any increase in any such
\ninsurance premium, provided that the acceptance by Landlord of such payment
\nshall not be construed as a waiver of any rights by Landlord in connection with
\na default by Tenant under the Lease.<\/p>\n
(e) Tenant shall, prior to and throughout the Lease Term,
\nprocure from each of its insurers under all policies of fire, theft, public
\nliability, commercial general liability and any other insurance policies of
\nTenant now or hereafter existing, pertaining in any way to the Premises or the
\nBuilding or any operation therein (except workers’ compensation), a waiver, as
\nset forth in Section 15 of this Lease, of all rights of subrogation which the
\ninsurer might otherwise, if at all, have against the Landlord or any officer,
\nagent or employee of Landlord (including, without limitation, Landlord’s
\nmanaging agent).<\/p>\n
(f) Landlord also shall maintain (i) a Commercial General
\nLiability policy applying to its use and occupancy of the Building and any areas
\nadjacent thereto, and the business operated by Landlord, with limits of
\nliability not less than One Million Dollars ($1,000,000.00) per occurrence and
\nTwo Million Dollars ($2,000,000.00) general aggregate for Bodily Injury and
\nProperty Damage with an umbrella liability policy with a minimum limit of Five
\nMillion Dollars ($5,000,000) per occurrence and in the aggregate (the “Umbrella
\nPolicy”), and (ii) a policy covering loss by fire or other casualty in the form
\nof an All-Risk policy covering the Building and the Tenant Work, but only the
\nextent of the actual cost of the Tenant Work, not to exceed the Tenant
\nImprovement Allowance plus five dollars ($5.00) per rentable square foot of the
\nPremises, in such amounts and with such coverages as would generally be carried
\nin Comparable Buildings, provided that Landlord may, but shall not be required
\nto, carry earthquake insurance.<\/p>\n
15. WAIVER OF SUBROGATION. Landlord and Tenant shall each have
\nincluded in all policies of fire, extended coverage, business interruption and
\nother insurance respectively obtained by them covering the Premises, the
\nBuilding and contents therein, a waiver by the insurer of all right of
\nsubrogation against the other in connection with any loss or damage thereby
\ninsured against. Any additional premium for such waiver shall be paid by the
\nprimary insured party. To the full extent permitted by law, Landlord and Tenant
\neach waives all rights of <\/p>\n
24<\/p>\n
recovery against the other for, and agrees to release the other from
\nliability for, loss or damage to the extent such loss or damage is covered by
\nvalid and collectible insurance in effect at the time of such loss or damage
\nor would be covered by the insurance required to be maintained under this
\nLease by the party seeking recovery.<\/p>\n
16. INDEMNIFICATION. Tenant hereby waives all claims against
\nLandlord and any employee or agent of Landlord and the direct or indirect
\nconstituent partners, members, shareholders or other owners thereof and the
\nofficers, directors, managers, agents and employees of all such persons
\n(collectively the “Landlord Indemnitees”) for damage to any property or injury
\nor death of any person in, upon or about the Premises arising at any time and
\nfrom any cause except to the extent caused by reason of gross negligence or
\nwillful act of Landlord, its agents, employees or contractors. Landlord shall
\nprovide Tenant with prompt notice of such claims and Tenant shall defend
\nLandlord against, hold Landlord and each of the Landlord Indemnitees harmless
\nfrom, and reimburse Landlord and each of the Landlord Indemnitees for any and
\nall claims, liabilities, damages, losses, costs and expenses, including without
\nlimitation, reasonable attorneys’ fees and costs arising out of or in any way
\nconnected with (a) injury to or death of any person, and (b) damage to or
\ndestruction of any property, occurring in, on or about the Premises or
\nattributable to or resulting from the condition, use or occupancy of the
\nPremises by Tenant or Tenant’s failure to perform its obligations under this
\nLease, except such as is caused principally by gross negligence or willful
\nmisconduct of Landlord, its contractors or employees. Landlord shall have the
\nright to approve the attorneys used by Tenant pursuant to this Section, which
\napproval shall not be unreasonably withheld or delayed; provided that, Landlord
\nshall have the right to use attorneys selected by Landlord, subject to Tenant’s
\napproval which shall not be unreasonably withheld or delayed, if a conflict
\nbetween Landlord and Tenant exists which would make representation of Landlord
\nby Tenant’s attorneys infeasible. Subject to the foregoing provision regarding
\nthe use of a mutually acceptable attorney for a common defense, the foregoing
\nindemnity obligation of Tenant shall include reasonable attorneys’ fees,
\ninvestigation costs and all other reasonable costs and expenses incurred by
\nLandlord or any Landlord Indemnitee from the first notice that injury, death or
\ndamage has occurred or that any claim or demand is to be made or may be made.
\nThe provisions of this Section 16 shall survive the termination of this Lease
\nwith respect to any damage, injury or death occurring prior to such termination.<\/p>\n
17. COMPLIANCE WITH LEGAL REQUIREMENTS. Tenant, at its sole cost
\nand expense, shall promptly comply with all laws, statutes, ordinances and
\ngovernmental rules, regulations or requirements now in force or which may
\nhereafter be in force; with the requirements of any board of fire underwriters
\nor other similar body now or hereafter constituted; with any direction or
\noccupancy certificate issued pursuant to any law by any public officer or
\nofficers, insofar as any thereof relate to or affect the condition, use or
\noccupancy of the Premises, including, without limitation, structural, utility
\nsystem and life safety system changes necessitated by Tenant’s acts and specific
\nuse of the Premises (but not by Tenant’s mere occupancy of the Premises) or by
\nimprovements made by or for Tenant.<\/p>\n
25<\/p>\n
18. ASSIGNMENT AND SUBLETTING.<\/p>\n
(a) Subject to the other provisions hereof, Tenant shall
\nnot, without the prior written consent of Landlord, which consent shall not be
\nunreasonably withheld or delayed by Landlord, transfer or assign this Lease or
\nany interest herein, sublet the Premises or any part thereof, or permit the use
\nof the Premises by any party other than Tenant. Subject to the other provisions
\nhereof, this Lease shall not, nor shall any interest herein, be assignable as to
\nthe interest of Tenant by operation of law without the consent of Landlord,
\nwhich consent shall not be unreasonably withheld or delayed. Tenant shall not
\nhypothecate or encumber this Lease or any interest herein without the prior
\nwritten consent of Landlord, which consent may be granted or denied in
\nLandlord’s reasonable discretion. Any of the foregoing acts without such consent
\nshall be void and shall at the option of Landlord, terminate this Lease.<\/p>\n
(b) Notwithstanding any of the provisions of this Section
\n18, Tenant shall have the right (i) to assign the Premises or sublet the
\nPremises or any portion thereof to an Affiliate (as defined below) of Tenant,
\nand (ii) to sublet any portion of the Premises or permit the use or occupancy of
\nthe Premises, either temporarily or long term, but in no event in excess of
\n10,000 square feet in the aggregate at any one time, to a supplier of services
\nto Tenant (e.g. data processing, photocopy, messenger, travel, communications,
\nfacilities management, accounting, etc.), Tenant’s consultants or Tenant’s
\ncontractors (the transfers described in (i) and (ii) above are referred to as
\n“Permitted Transfers” and the transferees described in (i) and (ii) above are
\nreferred to as “Permitted Transferees”). “Affiliate” shall mean (i)the National
\nBroadcasting Company (“NBC”), (ii) any corporation in which or with which Tenant
\nis merged or consolidated in accordance with applicable statutory provisions for
\nmerger or consolidation of corporations, so long as the liabilities of the
\ncorporations participating in such merger or consolidation are assumed by the
\ncorporation surviving such merger or created by such consolidation, (iii) to any
\ncorporation or other entity acquiring this Lease and all or substantially all of
\nTenant’s assets, or (iv) to any corporation or other entity which purchases all
\nof the stock of Tenant, provided that Landlord has approved in writing the
\nfinancial condition of any such entity described in clauses (i), (ii), (iii) and
\n(iv) pursuant to Landlord’s reasonable discretion, and any such entity has
\nassumed all obligations of Tenant hereunder pursuant to an assumption agreement
\nacceptable to Landlord; provided that, Landlord shall be deemed to have approved
\nthe financial condition under (iv) above for NBC and that company resulting from
\nthe merger transaction described in the S-4 Registration document filed July 12,
\n1999 by Tenant.<\/p>\n
Tenant shall provide written notice to Landlord of any Permitted
\nTransfers and the full name of any Permitted Transferee using, occupying,
\nsubletting or taking by assignment the Premises. The use of the Premises by each
\nPermitted Transferee is subject to all the terms and conditions of the Lease. No
\nsubletting or assignment to a Permitted Transferee shall release Tenant of
\nTenant’s obligations under this Lease or alter the primary liability of Tenant
\nto pay the rental and to perform all other obligations to be performed by Tenant
\nhereunder. The acceptance of rental by Landlord from a Permitted Transferee
\nshall not be deemed to be a waiver by Landlord of any provision hereof and
\nLandlord has no obligation to accept any rental from a Permitted Transferee. In
\nthe event of default by any Permitted Transferee in the performance of <\/p>\n
26<\/p>\n
any of the terms hereof, Landlord may proceed directly against Tenant without
\nthe necessity of exhausting remedies against such assignee, sublessee or
\nsuccessor.<\/p>\n
(c) If Tenant is a publicly held corporation, the public
\ntrading of stock in Tenant shall not be deemed an assignment or transfer within
\nthe meaning of this Section.<\/p>\n
(d) Without limiting the other instances in which it may
\nbe reasonable for Landlord to withhold its consent to an assignment or
\nsubletting, Landlord and Tenant acknowledge that it shall be reasonable for
\nLandlord to withhold or delay its consent in the following instances: <\/p>\n
(1) if, at the time consent is requested, or at
\nany time prior to the granting of consent, Tenant is in default under this
\nLease or would be in default under this Lease but for the pendency of any
\ngrace or cure period under Section 21 below;<\/p>\n
(2) if the proposed assignee or sublessee is
\na governmental agency;<\/p>\n
(3) if, in Landlord’s sole and absolute
\ndiscretion, the use of the Premises by the proposed assignee or sublessee
\nwould not be compatible with the operation and uses of other tenants in the
\nBuilding, would entail any alterations which would lessen the value of the
\nleasehold improvements in the Premises, would result in an increased burden
\non the Building, the Premises and systems and structures thereof, would
\nlikely cause an increase in insurance premiums for insurance policies
\napplicable to the Building, would conflict with any so-called “exclusive” or
\npercentage lease then in favor of another tenant of the Building or would
\nlikely impair the dignity, reputation or character of the Building.<\/p>\n
(4) if, in Landlord’s reasonable judgement,
\nthe financial worth or capacity of the proposed assignee or sublessee does
\nnot meet the credit standards applied by Landlord for other tenants under
\nleases with comparable terms, or in Landlord’s sole and absolute discretion,
\nthe character, reputation, or business of the proposed assignee or sublessee
\nis not consistent with the quality of the other tenancies in the Building;<\/p>\n
(5) any portion of the Building or Premises
\nwould become subject to additional or different governmental laws and
\nregulations including, without limitation, the ADA and Title 24; provided
\nthat, if Tenant elects to be responsible and pay for all costs resulting from
\nsaid additional or different governmental laws and regulations including,
\nwithout limitation, the ADA and Title 24, it shall not be reasonable for
\nLandlord to withhold or delay its consent;<\/p>\n
(6) if the proposed assignee or sublessee is
\nan existing tenant, or affiliate of an existing tenant, of the Building; or<\/p>\n
(7) if the proposed use is prohibited by law
\nor by any provision of this Lease, including, without limitation, the rules
\nand regulations then in effect; or<\/p>\n
27<\/p>\n
(8) if Landlord is negotiating with, and has
\nat any time within the past sixty (60) days negotiated with, the proposed
\nassignee or sublessee for space in the Building.<\/p>\n
(e) If, at any time during the Lease Term, Tenant desires
\nto assign its interest in this Lease or sublet all or any part of the Premises,
\nTenant shall give written notice to Landlord (“Tenant’s Notice”) setting forth
\nthe terms of the proposed transaction, which shall be expressly subject to the
\nprovisions of this Lease, the identity of the parties to the transaction, the
\nproposed documentation for the transaction and reasonably detailed information
\nregarding the business and financial condition of the parties involved as
\nrequested by Landlord. Landlord shall have the option, exercisable by notice
\ngiven to Tenant (“Landlord’s Election Notice”) within fifteen (15) days after
\nTenant’s Notice is given (“Landlord’s Option Period”), to either (i) consent to
\nthe assignment or subletting, in which event the provisions of Section 18(g)
\nhereof shall be applicable, or (ii) disapprove the proposed assignment or
\nsubletting. In the event that Landlord fails to provide Landlord’s Election
\nNotice during the Landlord’s Option Period, Landlord shall be deemed to have
\nconsented to the assignment or sublet, in which event the provisions of Section
\n18(g) hereof shall be applicable.<\/p>\n
Notwithstanding the foregoing or anything else to the contrary
\ncontained herein, in the event that Tenant desires to assign its interest in
\nthis Lease or sublet more than fifty percent (50%) of the Premises during the
\nlast five (5) years of the Lease Term (as the same may be extended pursuant to
\nthe terms of this Lease), Tenant shall give written notice of its intent to
\nmarket and offer such space to any third party (“Intent to Market Space”) and
\nLandlord shall have the option, exercisable by written notice given to Tenant
\nwithin thirty (30) days after receipt of Tenant’s Intent to Market Space
\n(“Landlord’s Notice”) to (i) consent to Tenant’s intent to market and offer such
\nspace to a third party, or (ii) in the case of an assignment, terminate this
\nLease in its entirety or, in the case of a subletting, terminate this Lease as
\nto the portion of the Premises proposed to be sublet, in which event Tenant
\nshall, on the date specified by Landlord (which shall be no less than forty-five
\n(45) days and no more than ninety (90) days after Landlord’s Notice) surrender
\nthe Premises, or the portion proposed to be assigned or sublet, to Landlord (if
\nonly a portion of the Premises on a given floor is involved, Landlord shall
\nretain such rights of access to and from such portion of the Premises as may be
\nreasonably required for Landlord or its tenant(s)’ use and enjoyment and Tenant
\nshall receive a proportionate adjustment in the Base Monthly Rental payable
\nhereunder). If Landlord fails to provide Tenant notice under either (i) or (ii)
\nabove within said thirty (30) day period, Landlord shall be deemed to have
\nconsented to Tenant’s intent to market and offer such space to a third party and
\nthe process shall be governed by the first grammatical paragraph of this Section
\n18(e).<\/p>\n
Notwithstanding anything to the contrary contained herein, in the event
\nthat Tenant desires to sublet any part of the 20th Floor and\/or 21st Floor other
\nthan to a Permitted Transferee, it shall be a requirement that said floors be
\nsublet together and at the same time on a full floor basis.<\/p>\n
(f) No sublessee shall have a right further to sublet
\nwithout Landlord’s prior consent, which Tenant acknowledges may be withheld in
\nLandlord’s absolute discretion, and any <\/p>\n
28<\/p>\n
assignment by a sublessee of its sublease shall be subject to Landlord’s
\nprior consent in the same manner as if Tenant were entering into a new
\nsublease. No sublease, once consented to by Landlord, shall be modified or
\nterminated by Tenant without Landlord’s prior consent, which consent shall
\nnot be unreasonably withheld.<\/p>\n
(g) In the case of an assignment or sublet, fifty percent
\n(50%) of any sums above the rate paid by Tenant, or other economic consideration
\nreceived by Tenant as a result of such assignment or sublet, shall be paid to
\nLandlord, after subtracting out-of-pocket leasing commissions paid to third
\nparty brokers by Tenant (not to exceed market rate leasing commissions) and
\ntenant improvement costs paid by Tenant in connection with the assignment or
\nsublet (provided that in no event shall said tenant improvement costs exceed Ten
\nDollars ($10.00) per rentable square foot).<\/p>\n
(h) If, at any time during the Lease, Tenant sublets a
\nportion of the Premises pursuant to Section 18(e) above which is less than fifty
\npercent (50%) of the Premises, but more than twenty-five thousand (25,000)
\nsquare feet, Tenant shall only have a right to sublet said portion of the
\nPremises a total of four (4) times during the Lease Term; provided that, if
\nTenant initially sublets the 8th Floor and\/or 9th Floor (as opposed to an
\ninitial occupancy on the 8th Floor and\/or 9th Floor by Tenant), said initial
\nsublets on the 8th Floor and\/or 9th Floor shall not be included in the four (4)
\nallowed sublets discussed above.<\/p>\n
(i) Regardless of Landlord’s consent and regardless of
\nwhether Landlord consent is required pursuant to the terms hereof, no subletting
\nor assignment shall release Tenant of Tenant’s obligations under this Lease or
\nalter the primary liability of Tenant to pay the rental and to perform all other
\nobligations to be performed by Tenant hereunder. The acceptance of rental by
\nLandlord from any other person shall not be deemed to be a waiver by Landlord of
\nany provision hereof. Consent to one assignment or subletting shall not be
\ndeemed consent to any subsequent assignment or subletting. In the event of
\ndefault by any assignee of Tenant or any successor of Tenant in the performance
\nof any of the terms hereof, Landlord may proceed directly against Tenant without
\nthe necessity of exhausting remedies against such assignee or successor.<\/p>\n
(j) Any request for Landlord’s consent pursuant to this
\nSection 18 shall also be accompanied by a payment to Landlord of Five Hundred
\nDollars ($500.00) for the review, evaluation, and\/or preparation of any
\nmaterials or documents; provided however, if Landlord elects to terminate
\npursuant to Section 18, the Five Hundred Dollars ($500.00) shall be refunded to
\nTenant. Under no other event shall any of these costs be reimbursable to Tenant.
\nIn addition, Tenant shall pay Landlord, within ten (10) days after demand, the
\namount of Landlord’s reasonable out-of-pocket costs incurred in processing each
\nproposed assignment, transfer or sublet (including, without limitation,
\nattorneys’ and other professional fees and costs).<\/p>\n
(k) Notwithstanding anything to the contrary contained
\nherein, any and all unexercised options to expand the Premises and any and all
\nrights of first refusal and similar rights are intended by both Landlord and
\nTenant to be personal to the original Tenant set forth in the Basic Lease
\nInformation and any Affiliates, and are not intended to benefit any other
\nassignee <\/p>\n
29<\/p>\n
or sublessee hereunder. Except in the case of assignment or subletting to an
\nto an Affiliate, upon any assignment of the Premises or a subletting of more
\nthan fifty percent (50%) of the Premises, any such options or rights to
\nexpand or rights of first refusal set forth in Section 52 shall automatically
\nand without any further action by Landlord terminate and be of no further
\nforce and effect;<\/p>\n
(l) Notwithstanding anything to the contrary contained
\nherein, any and all unexercised options to extend or renew the term of the Lease
\nare intended by both Landlord and Tenant to be personal to the original Tenant
\nset forth in the Basic Lease Information and any Affiliates, and are not
\nintended to benefit any other assignee or sublessee hereunder. Except in the
\ncase of assignment or subletting to an Affiliate, upon any assignment of the
\nPremises or a subletting of more than fifty percent (50%) of the Premises, any
\nsuch options or rights to extend or renew the term of the Lease in Section 51
\nshall automatically and without any further action by Landlord terminate and be
\nof no further force and effect;<\/p>\n
(m) Notwithstanding anything to the contrary contained
\nherein, regardless of whether Tenant initially sublets or occupies the 8th Floor
\nand\/or 9th Floor, the 8th Floor and 9th Floor shall not be included in the fifty
\npercent calculations described in Sections 18(k) and 18(l) above for the first
\nthirty-six (36) months after the earlier of the 8th Floor Term Commencement Date
\nor the 9th Floor Term Commencement Date; if Tenant initially sublets the 8th
\nand\/or 9th Floor and the sublease has a term of five (5) years or more, then
\nsaid sublease shall not be included in the fifty percent calculations described
\nin Sections 18(k) and 18(l) above.<\/p>\n
(n) Notwithstanding any contrary provision of law,
\nincluding California Civil Code section 1995.310, Tenant shall have no right,
\nand Tenant hereby waives and relinquishes any right, to cancel or terminate this
\nLease in the event Landlord is determined to have unreasonably withheld or
\ndelayed its consent to a proposed transfer, assignment or subletting.<\/p>\n
19. RULES; NO DISCRIMINATION. Tenant shall faithfully observe and
\ncomply with the rules and regulations attached to this Lease as EXHIBIT B, and
\nafter notice thereof, all reasonable modifications thereof and additions thereto
\nfrom time to time promulgated in writing by Landlord. Landlord shall not be
\nresponsible to Tenant for the nonperformance by any other tenant or occupant of
\nthe Building of any of said rules and regulations. Tenant specifically covenants
\nand agrees that Tenant shall not discriminate against or segregate any person or
\ngroup of persons on account of race, sex, creed, color, national origin, or
\nancestry in the occupancy, use, sublease, tenure or enjoyment of the Premises.<\/p>\n
20. ENTRY BY LANDLORD.<\/p>\n
(a) Upon prior reasonable notice, except in the case of
\nan emergency when Landlord shall provide such notice as is reasonable under the
\ncircumstances, Landlord may enter the Premises at reasonable hours to (a)
\ninspect the same; (b) exhibit the same to prospective purchasers, lenders or
\ntenants (provided, however, that Landlord shall only exhibit the Premises to
\nprospective tenants during or after the final one hundred eighty (180) days of
\nthe Lease Term); (c) make repairs or perform maintenance required of Landlord
\nunder the terms hereof or repairs to any adjoining space or utility services or
\nmake repairs, alterations or improvements to any <\/p>\n
30<\/p>\n
other portion of the Building; (d) supply janitor service and any other
\nservice to be provided by Landlord to Tenant under this Lease; and (e) post
\nnotices of non-responsibility (provided, however, that all such work shall be
\ndone as promptly as reasonably practical and so as to cause as little
\ninterference to Tenant as reasonably practical). Tenant hereby waives any
\nclaim for damages for any inconvenience to or interference with Tenant’s
\nbusiness or any loss of occupancy or quiet enjoyment of the Premises
\noccasioned by such entry. Landlord shall at all times have and retain a key
\nwith which to unlock all of the doors in, on or about the Premises (excluding
\nTenant’s vaults, safes and similar areas designated in writing by Tenant in
\nadvance); and Landlord shall have the right to use any and all means which
\nLandlord may deem proper to open Tenant’s doors in an emergency in order to
\nobtain entry to the Premises, and any entry to the Premises obtained by
\nLandlord in an emergency shall not be construed or deemed to be a forcible or
\nunlawful entry into or a detainer of the Premises or an eviction, actual or
\nconstruction, of Tenant from the Premises or any portion thereof and Landlord
\nshall have no liability to Tenant as a result thereof.<\/p>\n
(b) Notwithstanding anything to the contrary contained
\nherein, except in the case of an emergency, Landlord shall not enter into any
\nelectrical or telephone closet, or any LAN communication or computer server
\narea (collectively, “Secured Areas”) on any floor occupied by Tenant so long
\nas Tenant occupies the entire floor; provided that, upon prior reasonable
\nnotice, Landlord shall have the right to enter a Secured Area with
\nappropriate Tenant personnel and in the event of an emergency Landlord shall
\nhave the right to enter the Secured Area at any time.<\/p>\n
21. EVENTS OF DEFAULT. The following events shall constitute
\nEvents of Default under this Lease:<\/p>\n
(a) a default by Tenant in the payment when due of any
\nrent or other sum payable hereunder and the continuation of such default for
\na period of five (5) days after written notice from Landlord that the same is
\ndue; provided, however, that after the second failure in any calendar year to
\npay any rent or other sum on or before the date it is due, any further
\nfailure during such calendar year to pay any rent or other sum on or before
\nthe date it is due shall be an immediate Event of Default and shall not
\nrequire any written notice from Landlord pursuant to the Lease;<\/p>\n
(b) a default by Tenant in the performance of any of
\nthe other terms, covenants, agreements or conditions contained herein and, if
\nthe default is curable, the continuation of such default for a period of
\nthirty (30) days after notice by Landlord or beyond the time reasonably
\nnecessary for cure if Tenant is diligently pursuing a cure, if default is of
\na nature to require more than thirty (30) days to remedy; provided, however,
\nin no event shall Tenant have more than a period of one hundred eighty (180)
\ndays to remedy any such default;<\/p>\n
(c) the bankruptcy or insolvency of Tenant, transfer
\nby Tenant in fraud of creditors, an assignment by Tenant for the benefit of
\ncreditors, or the commencement of any proceedings of any kind by or against
\nTenant under any provision of the Federal Bankruptcy Act or under any other
\ninsolvency, bankruptcy or reorganization act unless, in the event any such <\/p>\n
31<\/p>\n
proceedings are involuntary, Tenant is discharged from the same within sixty
\n(60) days thereafter;<\/p>\n
(d) the appointment of a receiver for a substantial part
\nof the assets of Tenant;<\/p>\n
(e) the abandonment of the Premises by Tenant;<\/p>\n
(f) the levy upon this Lease or any estate of Tenant
\nhereunder by any attachment or execution and the failure to have such attachment
\nor execution vacated within thirty (30) days thereafter; or<\/p>\n
(g) the default of a guarantor under a guaranty or
\nrepudiation of a guaranty required under this Lease.<\/p>\n
In no event shall this Lease be assigned or assignable by reason of
\nany voluntary or involuntary bankruptcy proceedings, nor shall any rights or
\nprivileges hereunder be an asset of Tenant, the trustee,
\ndebtor-in-possession, or the debtor’s estate in any bankruptcy, insolvency or
\nreorganization proceedings.<\/p>\n
22. TERMINATION UPON DEFAULT. Upon the occurrence of any Event
\nof Default by Tenant hereunder, Landlord may, at its option and without any
\nfurther notice or demand, in addition to any other rights and remedies given
\nhereunder or by law, terminate this Lease and exercise its remedies relating
\nthereto in accordance with the following provisions:<\/p>\n
(a) Landlord shall have the right, so long as the
\nEvent of Default remains uncured, to give notice of termination to Tenant,
\nand on the date specified in such notice this Lease shall terminate.<\/p>\n
(b) In the event of any such termination of this
\nLease, Landlord may then or at any time thereafter by judicial process,
\nre-enter the Premises and remove therefrom all persons and property and again
\nrepossess and enjoy the Premises, without prejudice to any other remedies
\nthat Landlord may have by reason of Tenant’s default or of such termination.<\/p>\n
(c) In the event of any such termination of this
\nLease, and in addition to any other rights and remedies Landlord may have,
\nLandlord shall have all of the rights and remedies of a landlord provided by
\nSection 1951.2 of the California Civil Code. The amount of damages which
\nLandlord may recover in event of such termination shall include, without
\nlimitation: (1) the worth at the time of award (computed by discounting such
\namount at the discount rate of the Federal Reserve Bank of San Francisco at
\nthe time of award plus one percent) of the amount by which the unpaid rent
\nfor the balance of the term after the time of award exceeds the amount of
\nrental loss that Tenant proves could be reasonably avoided; (2) all legal
\nexpenses and other related costs incurred by Landlord following Tenant’s
\ndefault; (3) all costs incurred by Landlord in restoring the Premises to good
\norder and condition, or in remodeling, renovating or otherwise preparing the
\nPremises for reletting; (4) all costs (including, without limitation, any
\nbrokerage commissions) actually incurred by Landlord in reletting the
\nPremises; and (5) any and all other damages suffered by Landlord.<\/p>\n
32<\/p>\n
(d) After terminating this Lease, Landlord may remove
\nany and all personal property located in the Premises and place such property
\nin a public or private warehouse or elsewhere at the sole cost and expense of
\nTenant. In the event that Tenant shall not immediately pay the cost of
\nstorage of such property after the same has been stored for a period of
\nthirty (30) days or more, Landlord may sell any or all thereof at a public or
\nprivate sale in such manner and at such times and places as Landlord in its
\nsole discretion may deem proper, without notice to or demand upon Tenant.
\nTenant waives all claims for damages that may be caused by Landlord’s
\nremoving or storing or selling the property as herein provided, and Tenant
\nshall indemnify and hold Landlord free and harmless from and against any and
\nall claims, damages, liabilities, losses, costs and expenses, including,
\nwithout limitation, all costs of court and attorneys’ fees of Landlord
\noccasioned thereby.<\/p>\n
(e) In the event of the occurrence of any of the
\nevents specified in Section 21(c) of this Lease, if Landlord shall not choose
\nto exercise, or by law shall not be able to exercise, its rights hereunder to
\nterminate this Lease, then, in addition to any other rights of Landlord
\nhereunder or by law, (i) Landlord may discontinue the services provided
\npursuant to Section 7 of this Lease, unless Landlord has received
\ncompensation in advance for such services in the amount of Landlord’s
\nreasonable estimate of the compensation required with respect to such
\nservices, and (ii) neither Tenant, as debtor-in-possession, nor any trustee
\nor other person (collectively, the “Assuming Tenant”) shall be entitled to
\nassume this Lease unless on or before the date of such assumption, the
\nAssuming Tenant (a) cures, or provides adequate assurance that the Assuming
\nTenant will promptly cure, any existing default under this Lease, (b)
\ncompensates, or provides adequate assurance that the Assuming Tenant will
\npromptly compensate Landlord for any pecuniary loss (including, without
\nlimitation, attorneys’ fees and disbursements) resulting from such default,
\nand (c) provides adequate assurance of future performance under this Lease.
\nFor purposes of this Section 22(e) “adequate assurance” of such cure,
\ncompensation or future performance shall be effected by the establishment of
\nan escrow fund for the amount at issue or by bonding.<\/p>\n
23. CONTINUATION AFTER DEFAULT. Landlord shall have the remedy
\ndescribed in California Civil Code Section 1951.4 (i.e. Landlord may continue
\nthis Lease in effect after Tenant’s abandonment and recover rental as it
\nbecomes due, because Tenant has the right to sublet or assign, subject only
\nto reasonable limitations). Even though Tenant has breached this Lease and
\nabandoned the Premises, this Lease shall continue in effect for so long as
\nLandlord does not terminate Tenant’s right to possession, and Landlord may
\nenforce all its rights and remedies as it becomes due under this Lease. Acts
\nof maintenance or preservation or efforts to relet the Premises or the
\nappointment of a receiver upon initiative of Landlord to protect Landlord’s
\ninterest under this Lease shall not constitute a termination of Tenant’s
\nright to possession.<\/p>\n
24. OTHER RELIEF. The remedies provided for in this Lease are
\nin addition to any other remedies available to Landlord at law or in equity,
\nby statute or otherwise.<\/p>\n
25. LANDLORD’S RIGHT TO CURE DEFAULTS. All agreements and
\nprovisions to be performed by Tenant under any of the terms of this Lease
\nshall be at its sole cost and expense <\/p>\n
33<\/p>\n
and without any abatement of rental. If Tenant shall fail to pay any sum of
\nmoney, other than rental, required to be paid by it hereunder or shall fail
\nto perform any other act on its part to be performed hereunder and such
\nfailure shall continue for thirty (30) days after notice thereof by Landlord,
\nor such longer period as may be allowed hereunder, Landlord may, but shall
\nnot be obligated so to do, and without waiving or releasing Tenant from any
\nobligations of Tenant, make any such payment or perform any such other act on
\nTenant’s part to be made or performed as in this Lease provided to the extent
\nLandlord may deem desirable. All sums so paid by Landlord (with interest at
\nan annual rate of thirteen percent (13%), but in no event in excess of the
\nmaximum rate of interest permitted by law) and all necessary incidental costs
\nshall be payable to Landlord on demand.<\/p>\n
26. LANDLORD DEFAULT. Landlord’s failure to perform any of its
\nobligations under this Lease shall constitute an Event of Default by Landlord
\nif the failure continues for thirty (30) days after written notice of the
\nfailure from Tenant to Landlord. If the required performance cannot be
\ncompleted within thirty (30) days, Landlord’s failure to perform shall not
\nconstitute an Event of Default, provided Landlord undertakes to cure the
\nfailure within the thirty (30) days and diligently and continuously attempts
\nto complete this cure as soon as reasonably possible.<\/p>\n
27. ATTORNEYS’ FEES. If any action arising out of this Lease is
\nbrought by either party hereto against the other, then and in that event the
\nunsuccessful party to such action shall pay to the prevailing party all costs
\nand expenses of such action and any appeal related thereto, including
\nreasonable attorneys’ fees, incurred by such prevailing party, and if the
\nprevailing party shall recover judgment in such action, such costs expenses
\nand attorneys’ fees shall be included in and as part of such judgment.<\/p>\n
28. EMINENT DOMAIN. If all or any part of the Premises shall be
\ntaken as a result of eminent domain action or voluntary deed under threat
\nthereof, this Lease shall terminate as to the part so taken as of the date of
\ntaking, and, in the case of a partial taking, either Landlord or Tenant shall
\nhave the right to terminate this Lease as to the balance of the Premises by
\nnotice to the other within thirty (30) days after such date; provided,
\nhowever, that a condition to the exercise by Tenant of such right to
\nterminate shall be that the portion of the Premises taken shall be of such
\nextent and nature so as substantially to handicap, impede or impair Tenant’s
\nuse of the balance of the Premises. In the event of any taking, Landlord
\nshall be entitled to any and all compensation, damages, income, rent, awards,
\nor any interest therein whatsoever which may be paid or made in connection
\ntherewith, and Tenant shall have no claim against Landlord for the value of
\nany unexpired Lease Term or otherwise. In the event of a partial taking of
\nthe Premises which does not result in a termination of this Lease, the
\nmonthly rental thereafter to be paid shall be equitably reduced. Nothing
\ncontained herein, however, shall be deemed to give Landlord any interest in,
\nor to require Tenant to assign to Landlord, any award made to Tenant
\nspecifically for its relocation expenses, the taking of personal property and
\nfixtures belonging to Tenant, or the interruption of or damage to Tenant’s
\nbusiness if such award is made separately to Tenant and not as part of the
\ndamages recoverable by Landlord and if Tenant’s claim does not adversely
\naffect Landlord’s award or interfere with Landlord’s prosecution of its claim
\nfor the condemnation or taking.<\/p>\n
34<\/p>\n
29. SUBORDINATION AND NONDISTURBANCE.<\/p>\n
(a) This Lease shall be subject and subordinate to any
\nmortgage, deed of trust, or any other hypothecation for security now or
\nhereafter placed upon the Building and to any and all advances made on the
\nsecurity thereof or Landlord’s interest therein, and to all renewals,
\nmodifications, consolidations, replacements and extensions thereof. In the
\nevent any mortgage or deed of trust to which this Lease is subordinate is
\nforeclosed or a deed in lieu of foreclosure is given to the mortgagee or
\nbeneficiary, Tenant shall attorn to the purchaser at the foreclosure sale or
\nto the grantee under the deed in lieu of foreclosure. Tenant agrees to
\nexecute within ten (10) days any documents required to effectuate such
\nsubordination, to make this Lease prior to the lien of any mortgage or deed
\nof trust as may be requested by the holder of any such mortgage or deed of
\ntrust, or to evidence such attornment, provided, however, as a pre-condition
\nto Tenant’s subordination to a mortgage and any subordination set forth in
\nthis Section below, the mortgagee shall first provide Tenant with a
\nSubordination, Non-Disturbance and Attornment Agreement in the form attached
\nhereto as Exhibit F.<\/p>\n
(b) In the event any mortgage or deed of trust which
\nis entered into by Landlord after the date hereof to which this Lease is
\nsubordinate is foreclosed or a deed in lieu of foreclosure is given to the
\nmortgagee or beneficiary, this Lease shall not be barred, terminated, cut off
\nor foreclosed, nor shall the rights and possession of Tenant hereunder be
\ndisturbed if Tenant shall not then be in default in the payment of rental and
\nother sums due hereunder or otherwise be in default under the terms of this
\nLease, and if Tenant shall attorn to the purchaser, or grantee as provided in
\nSection 29(a) above (provided, that, the non-disturbance of Tenant’s rights
\nand possession of this Section 29(b) shall not be contingent on whether
\nLandlord requests Tenant’s attornment) or, if requested, enter into a new
\nlease for the balance of the term hereof upon the same terms and provisions
\nas are contained in this Lease.<\/p>\n
(c) Landlord shall obtain a non-disturbance agreement
\nfrom the holder of the existing first deed of trust covering the Building in
\nthe form attached hereto as Exhibit F.<\/p>\n
30. NO MERGER. The voluntary or other surrender of this Lease
\nby Tenant, or a mutual cancellation thereof, shall not work a merger, and
\nshall, at the option of Landlord, terminate all or any existing subleases or
\nsubtenancies, or operate as an assignment to it of any or all such subleases
\nor subtenancies.<\/p>\n
31. AMENDMENTS. This Lease may not be amended or modified in
\nany respect whatsoever except by an instrument in writing signed by Landlord
\nand Tenant.<\/p>\n
32. ESTOPPEL CERTIFICATE.<\/p>\n
At any time and from time to time but on not less than ten
\n(10) business days prior notice by Landlord, Tenant shall execute,
\nacknowledge, and deliver to Landlord, promptly upon request, a certificate in
\nsubstantially the form attached hereto as EXHIBIT E certifying (a) that this
\nLease is unmodified and in full force and effect (or, if there have been
\nmodifications, that this Lease is in full force and effect, as modified, and
\nstating the date and nature of each modification), (b) the date, if any, to
\nwhich rental and other sums payable hereunder have been <\/p>\n
35<\/p>\n
paid, (c) that no notice has been received by Tenant of any default which has
\nnot been cured, except as to defaults specified in the certificate, (d)
\nwhether there is then existing any claim by Tenant of default hereunder by
\nLandlord, and, if so, specifying the nature thereof, and (e) such other
\nmatters as may be reasonably requested by Landlord Any such certificate may
\nbe relied upon by any prospective purchaser, mortgagee or beneficiary under
\nany deed of trust on the Building or any part thereof.<\/p>\n
33. NO LIGHT, AIR, OR VIEW EASEMENT. Any diminution or shutting
\noff of light, air or view by any structure which may be erected on lands
\nadjacent to the Building shall in no way affect this Lease or impose any
\nliability on Landlord.<\/p>\n
34. HOLDING OVER. If Tenant holds possession of the Premises
\nafter expiration of the Lease Term, Tenant shall become a tenant from month
\nto month upon the terms herein specified but at a monthly rental equivalent
\nto one hundred fifty percent (150%) of the monthly rental payable by Tenant
\nduring the last full month prior to the expiration of the Lease Term, payable
\nin advance on or before the first day of each month. Without limiting and in
\naddition to the foregoing, Tenant hereby agrees to indemnify, defend and hold
\nharmless Landlord, its beneficiary, and their respective agents, contractors
\nand employees, from and against any and all claims, liabilities, actions,
\nlosses, damages (including without limitation, direct, indirect, incidental
\nand consequential) and expenses (including, without limitation, court costs
\nand reasonable attorneys’ fees) asserted against or sustained by any such
\nparty and arising from or by reason of such retention of possession, which
\nobligations shall survive the expiration or termination of the Lease Term.<\/p>\n
35. SECURITY DEPOSIT.<\/p>\n
(a) Within five (5) business days of execution of the
\nLease by both parties, Tenant shall deposit with Landlord an unconditional,
\nirrevocable letter of credit (the “Letter of Credit”), in the amount of Four
\nMillion Five Hundred Thousand Dollars ($4,500,000) as a security deposit.
\nThe Letter of Credit shall (i) be issued by a commercial bank reasonably
\nsatisfactory to Landlord (“Issuer”); (ii) be an unconditional and irrevocable
\nletter of credit; (iii) be payable to Landlord; (iv) require that any draw on
\nthe Letter of Credit shall be made only upon receipt by the Issuer of a
\ndemand notice from Landlord (the “Demand Notice”); (v) provide that it is
\ngoverned by the Uniform Customs and Practice for Documentary Credits (1993
\nrevisions), International Chamber of Commerce Publication No. 500; (vi)
\ncomply with any requirements for the Letter of Credit as set forth in Exhibit
\nF; and (vi) otherwise be in a form reasonably acceptable to Landlord. Tenant
\nshall keep the Letter of Credit, or a renewal thereof, in effect during the
\nentire Lease Term, as the same may be extended, plus a period of four (4)
\nweeks thereafter. At least thirty (30) days prior to the expiration of the
\nLetter of Credit, the term thereof shall be renewed or extended pursuant to
\nan amendment thereto reasonably acceptable to the Landlord and any failure to
\nso renew or extend the Letter of Credit shall entitle Landlord to immediately
\ndraw down all sums available thereunder. If Tenant fails to renew or extend
\nthe Letter of Credit and Landlord draws downs all sums available thereunder,
\nTenant shall have the right to replace the expired Letter of Credit with a
\nletter of credit meeting the requirements set forth herein. Upon Tenant’s
\nreplacement of the Letter of Credit with a substitute letter of credit <\/p>\n
36<\/p>\n
meeting the requirements set forth herein, Landlord shall immediately return
\nthe drawn down sums to Tenant upon demand.<\/p>\n
(b) Provided that Tenant has not committed a monetary
\nEvent of Default during the previous twelve (12) months (or by the time of
\nthe merger described below) and that any other Event of Default has not
\noccurred with respect to Tenant which remains uncured, Tenant may reduce the
\namount of the Letter of Credit to Two Million Two Hundred Fifty Thousand
\nDollars ($2,250,000) upon completion of Tenant’s merger transaction as
\ndescribed in the S-4 Registration document filed July 12, 1999 by Tenant, by
\nan amendment or by substitution of a new letter of credit which complies with
\nthe requirements of this paragraph, which reflects such reduced amount (the
\n“Amended Amount”).<\/p>\n
(c) Provided that Tenant has not committed a monetary
\nEvent of Default during the previous twenty-four (24) months and that any
\nother Event of Default has not occurred with respect to Tenant which remains
\nuncured, Tenant may reduce the amount of the Letter of Credit to Six Hundred
\nThirty Three Thousand Six Hundred Six Dollars ($633,606) by an amendment or
\nby substitution of a new letter of credit which complies with the
\nrequirements of this paragraph, which reflects such reduced amount (the
\n“Further Amended Amount”).<\/p>\n
(d) Provided that Tenant has not committed a monetary
\nEvent of Default during the previous twelve (12) months and that any other
\nEvent of Default has not occurred with respect to Tenant and remains uncured,
\nin the event that Tenant obtains a “BBB” credit rating from Standard & Poors,
\nor a rating equivalent to such Standard & Poors’ rating from Moody’s, Fitch,
\nor any other comparable rating agency acceptable to Landlord, for senior
\nunsecured debt, the Letter of Credit shall be returned to Tenant within
\nthirty (30) days after Tenant’s prior written notification to Landlord that
\nit has received such rating. In the event that said senior unsecured debt
\ncredit rating is later withdrawn or reduced, then Tenant shall have thirty
\n(30) days to post a new Letter of Credit in an amount calculated in
\naccordance with the reductions permitted under this subparagraph and
\nsubparagraphs 32(a) and (b) above.<\/p>\n
(e) If an Event of Default occurs, Landlord shall be
\nentitled to draw upon the Letter of Credit in the amount determined by
\nLandlord necessary to cure such Event of Default and compensate Landlord for
\nany damages suffered by Landlord as a result thereof. Tenant shall
\nimmediately restore the face amount of the Letter of Credit to the face
\namount which was applicable immediately prior to Landlord’s drawing down sums
\nthereunder pursuant to an amendment to the Letter of Credit reasonably
\nacceptable to Landlord or a replacement of the Letter of Credit (provided the
\nLetter of Credit requirements in Section 35(a) are satisfied, or shall
\ndeposit with Landlord a cash sum in an amount which when added to the amount
\navailable to be drawn under the Letter of Credit equals the amount of the
\nLetter of Credit immediately prior to Landlord’s draw under the Letter of
\nCredit. Any cash deposited with Landlord shall be held by Landlord as a
\nSecurity Deposit pursuant to subparagraph 32(b) of this Lease.
\nNotwithstanding anything to the contrary contained herein, any failure by
\nTenant to restore the face value of the Letter of Credit to such amount, to
\nreplace the Letter of Credit or to deposit with Landlord a corresponding cash
\namount, within five business (5) days after its receipt of a written request
\nfrom Landlord shall be an Event of Default. Without limiting any other rights
\nor remedies of <\/p>\n
37<\/p>\n
Landlord as a result of such Event of Default, Landlord may draw down any
\nsums then remaining under the Letter of Credit and Tenant shall within five
\n(5) business days after its receipt of a written request from Landlord
\ndeposit cash with Landlord in an amount sufficient to bring the sums held by
\nLandlord to an amount equal to the current Amended Amount. The cash then held
\nby Landlord in the amount of such current Amended Amount shall be held as the
\nSecurity Deposit pursuant to the provisions of subparagraph 32 of the Lease
\nfor the remainder of the term of the Lease. In the event of termination of
\nLandlord’s interest in this Lease, Landlord shall transfer said deposit to
\nLandlord’s successor in interest.<\/p>\n
(f) The Security Deposit shall be held by Landlord as
\nsecurity for the faithful performance by Tenant of all the provisions of this
\nLease to be performed or observed by Tenant. If Tenant fails to pay rent or
\nother sums due hereunder, or otherwise defaults with respect to any provision
\nof this Lease, Landlord may use, apply or retain all or any portion of the
\nSecurity Deposit for the payment of any rent or other sum in default or for
\nthe payment of any other sum to which Tenant compensates Landlord for any
\nloss or damage which Landlord may suffer thereby. If Landlord so uses or
\napplies all or any portion of the Security Deposit, Tenant shall within ten
\n(10) days after demand therefor deposit cash with Landlord in an amount
\nsufficient to restore the Security Deposit to the full amount thereof and
\nTenant’s failure to do so shall be a material breach of this Lease.<\/p>\n
(g) Subject to the other provisions of this Lease, at
\nthe end of the Lease Term, as the same may be extended as provided hereunder,
\nthe then current Letter of Credit and any amount held by Landlord as a
\nSecurity Deposit shall be returned to Tenant within sixty (60) days of the
\nTerm Expiration Date. The Letter of Credit and Security Deposit amount, if
\nany, shall be returned to Tenant pursuant to this Section 35(g) by the then
\nLandlord regardless of whether the then Landlord, or any buyer in a
\nforeclosure sale has received the Letter of Credit or Security Deposit;
\nprovided the foregoing shall not apply to any lender or mortgagee, unless
\nspecifically agreed to in writing by such lender or mortgagee.<\/p>\n
36. WAIVER. The waiver by Landlord or Tenant of any agreement,
\ncondition or provision herein contained shall not be deemed to be a waiver of
\nany subsequent breach of the same or any other agreement, condition or
\nprovision herein contained, nor shall any custom or practice which may grow
\nup between the parties in the administration of the terms hereof be construed
\nto waive or to lessen the right of either party to insist upon the
\nperformance by the other party in strict accordance with such terms. The
\nsubsequent acceptance of rental hereunder by Landlord shall not be deemed to
\nbe a waiver of any preceding breach by Tenant of any agreement, condition or
\nprovision of this Lease, other than the failure of Tenant to pay the
\nparticular rental so accepted, regardless of Landlord’s knowledge of
\npreceding breach at the time of acceptance of the rental.<\/p>\n
37. NOTICES AND CONSENTS. All notices, consents, demands and
\nother communications from one party to the other that are given pursuant to
\nthe terms of this Lease shall be in writing and shall be deemed to have been
\nfully given (i) three (3) days after deposit in the United States mail,
\ncertified or registered, postage prepaid, (ii) one (1) day after mailed by
\novernight courier service, (iii) on the date of delivery if personally
\ndelivered (provided that, personal delivery in <\/p>\n
38<\/p>\n
the Building is not effective delivery to the Landlord) and addressed as
\nfollows: prior to the Rent Commencement Date, to Tenant at the address
\nspecified in the Basic Lease Information, and to the Premises thereafter, or
\nto such other place as Tenant may from time to time designate in a notice to
\nLandlord; and to Landlord at the address specified in the Basic Lease
\nInformation, or to such other place as Landlord may from time to time
\ndesignate in a notice to Tenant.<\/p>\n
38. COMPLETE AGREEMENT. There are no oral agreements between
\nLandlord and Tenant affecting this Lease, and this Lease supersedes and
\ncancels any and all previous negotiations, arrangements, brochures,
\nagreements, letters of intent and understandings if any, between Landlord and
\nTenant or displayed by Landlord to Tenant with respect to the subject matter
\nof this Lease, the Building or related facilities.<\/p>\n
39. CORPORATE AUTHORITY. If Tenant signs as a corporation,
\npartnership or other entity, each of the persons executing this Lease on
\nbehalf of Tenant warrants that Tenant is duly organized and existing, that
\nTenant has been and is qualified to do business in California, that Tenant
\nhas full right and authority to enter into this Lease, and that each and both
\nof the persons signing on behalf of Tenant were authorized by Tenant to do so
\non its behalf. If Landlord signs as a corporation, partnership or other
\nentity, each of the persons executing this Lease on behalf of Landlord
\nwarrants that each of the persons signing on behalf of Landlord were
\nauthorized by Landlord to do so on its behalf.<\/p>\n
40. STORAGE SPACE. Tenant shall have the right, exercisable by
\nwritten notice to Landlord prior to December 31, 1999, to lease up to
\napproximately 7,000 square feet of storage space in the Building, but
\nnoncontiguous to the Premises, on a month to month basis at the rate of
\n$16.00 per square foot per annum commencing on the date which is thirty (30)
\ndays after Tenant has provided notice to Landlord of its intention to lease
\nsuch storage space. After December 31, 1999, Tenant may only lease such
\nstorage space as available and at such rates as Landlord may then be offering
\nsuch space to third parties. Upon Tenant’s written notice to Landlord
\npursuant to this Section 40, Tenant and Landlord shall enter into a separate
\nlease for the storage space.<\/p>\n
41. NO CONSEQUENTIAL DAMAGES. Notwithstanding any other
\nprovision of this Lease, Landlord shall not be liable for any consequential
\ndamages, nor shall Landlord be liable for loss of or damage to artwork,
\ncurrency, jewelry, bullion, unique or valuable documents, securities or other
\nvaluables, or for other property not in the nature of ordinary fixtures,
\nfurnishings and equipment used in general administrative and executive office
\nactivities and functions.<\/p>\n
42. MISCELLANEOUS. If there be more than one Tenant, the
\nobligations hereunder imposed upon Tenant shall be joint and several. The
\nwords “include,” “includes” and “including” shall be deemed to be followed by
\nthe phrase “without limitation.” The term “Landlord” or any pronoun used in
\nplace thereof includes the plural as well as the singular and the successors
\nand assigns of Landlord. The term “Tenant” or any pronoun used in place
\nthereof includes the plural as well as the singular and individuals, firms,
\nassociations, partner-ships and corporations, and their and each of their
\nrespective heirs, executors, administrators, successors and permitted
\nassigns, according to the context hereof. The term “person” includes the
\nplural as <\/p>\n
39<\/p>\n
well as the singular and individuals, firms, associations, partnerships and
\ncorporations. Words used in any gender include other genders. Time is of the
\nessence of this Lease and each and all of its provisions. Submission of this
\ninstrument for examination or signature by Tenant does not constitute a
\nreservation of or option for lease, and it is not effective as a lease or
\notherwise until execution and delivery by both Landlord and Tenant. The
\nagreements, conditions and provisions herein contained shall, subject to the
\nprovisions as to assignment, apply to and bind the heirs, executors,
\nadministrators, successors and assigns of the parties hereto. Subject to the
\nprovisions of Section 47 below, Tenant shall not, without the consent of
\nLandlord, use the name of the Building for any purpose other than as the
\naddress of the business to be conducted by Tenant in the Premises. Upon the
\nrequest of Landlord, Tenant shall provide to Landlord from time to time, at
\nno expense to Landlord, copies of such financial statements with respect to
\nTenant as may have been prepared by or for Tenant. Landlord’s acceptance of a
\npartial rent payment shall not constitute a waiver of any rights of Tenant or
\nLandlord, including, without limitation, any right Landlord may have to
\nrecover possession of the Premises, in unlawful detainer, or otherwise.
\nTenant shall not record this Lease or any portion or any reference hereto. If
\nTenant shall record this Lease, or shall permit or causes this Lease, or any
\nportion hereof or reference hereto to be recorded, this Lease shall, at
\nLandlord’s option terminate, or Landlord may declare a default hereunder and
\npursue any and all remedies provided for in this Lease. If any provisions of
\nthis Lease shall be determined to be illegal or unenforceable, such
\ndetermination shall not affect any other provision of this Lease and all such
\nother provisions shall remain in full force and effect. This Lease shall be
\ngoverned by and construed pursuant to the laws of the State of California.<\/p>\n
43. ABANDONMENT. Subject to Tenant’s rights under Section 18 of
\nthis Lease, Tenant shall not vacate or abandon the Premises or any part
\nthereof at any time during the Lease Term. Tenant shall not be deemed to have
\nvacated the Premises if, upon prior written notice to Landlord, Tenant
\ntemporarily vacates not more that two floors in the Premises for a period not
\nto exceed three (3) months. Tenant understands that if Tenant should leave
\nthe Premises or any part thereof vacant or abandoned, the risk of fire, other
\ncasualty, and vandalism to the Premises and the Building will be increased
\nand that, therefore, such action by Tenant shall constitute a material breach
\nof this Lease, whether or not Tenant continues to pay rent and additional
\nrent under this Lease. If Tenant shall vacate, abandon or surrender the
\nPremises, or be dispossessed by process of law or otherwise, any personal
\nproperty belonging to Tenant and left on the Premises shall be deemed to be
\nabandoned, at the option of Landlord, and Landlord may sell or otherwise
\ndispose of such personal property in any commercially reasonable manner.<\/p>\n
44. AMERICANS WITH DISABILITIES ACT AND SIMILAR ACTS.
\nNotwithstanding anything to the contrary contained herein or in the Lease,
\nTenant, at its sole cost and expense, shall (i) cause all alterations,
\nadditions, improvements and repairs to the Premises to comply with the
\nprovisions of the ADA, Title 24 of the California Administrative Code, and
\nother similar federal, state, and local laws and regulations, including,
\nwithout limitation, any alterations required under ADA for the purposes of
\n“public accommodations” (as that term is used in the ADA), and (ii) reimburse
\nLandlord upon demand for any and all costs and expenses incurred by Landlord
\nto comply with ADA, Title 24, or such similar federal, state, or local laws
\nand regulations in any other portion of the Building in which the Premises
\nare located arising out of Tenant’s specific use of or construction in the
\nPremises, excluding any such costs and expenses arising out of the <\/p>\n
40<\/p>\n
tenant improvement work described in EXHIBIT C and approved by Landlord.
\nExcept as provided above, Tenant shall have no responsibility to comply with
\nsuch laws in portions of the Building outside of the Premises.<\/p>\n
45. EXHIBITS. The exhibit(s) and addendum, if any, specified
\nin the Basic Lease Information are attached to this Lease and by this
\nreference made a part hereof.<\/p>\n
46. LANDLORD’S LIABILITY; SALE OF BUILDING. The term
\n“Landlord,” as used in this Lease, shall mean only the owner or owners of the
\nBuilding at the time in question. Tenant acknowledges and agrees that the
\nliability of Landlord with respect to its obligations under this Lease, or
\narising in connection with the ownership, operation, management, leasing,
\nrepair, renovation, alteration or any other matter relating to the Building
\nor the Premises, is limited to Landlord’s interest in the Building, and
\nTenant agrees to look solely to Landlord’s interest in the Building to
\nsatisfy any claim or judgment against or any liability or obligation of
\nLandlord to Tenant under this Lease. In no event shall any partner, officer,
\ndirector, employee, trustee, beneficiary, advisor, investment manager,
\nmanager, agent, member, advisor, or shareholder of Landlord have any personal
\nliability to Tenant with respect to any liability or obligation of Landlord
\nto Tenant, and no recourse shall be had by Tenant against any such parties or
\nthe assets of any such parties to satisfy any claim or judgment of Tenant for
\nLandlord’s breach of any of its obligations under this Lease. In addition, in
\nthe event of any conveyance of title to the Building, Landlord shall be
\nrelieved of all liability with respect to Landlord’s obligations to be
\nperformed under this Lease after the date of such conveyance; provided that,
\nthe new owner has assumed the obligations under this Lease in writing. If
\nTenant provides Landlord with any security for Tenant’s performance of its
\nobligations hereunder, Landlord shall transfer such security to the grantee
\nor transferee of Landlord’s interest in the Real Property, and once such
\ntransfer has been made, Landlord shall be released from any further
\nresponsibility or liability of such security. Wherever in this Lease Tenant
\n(i) releases Landlord from any claim or liability, (ii) waives or limits any
\nof its rights to assert any claim against Landlord or to seek recourse
\nagainst any property of Landlord or (iii) agrees to indemnify Landlord
\nagainst any matters, the relevant release, waiver, limitation or indemnity
\nshall run in favor of and apply to Landlord, the direct and indirect
\nconstituent shareholders, partners, trustees, beneficiaries, members or other
\nowners of Landlord, and the directors, officers, employees and agents of
\nLandlord and each such constituent shareholder, partner or other owner.<\/p>\n
47. NAME OF BUILDING AND SIGNAGE.<\/p>\n
(a) Landlord shall provide Tenant, at Landlord’s sole
\ncost and expense, with a proportionate share of the existing Building
\ndirectory in the main lobby and in any future directory in the Building annex
\nlobby. Tenant may display its name or logo in such directory, consistent with
\nthe current directory format and in a manner approved by Landlord. Landlord
\nshall provide Tenant, at Landlord’s sole cost and expense, enhanced building
\nsignage at the top of the Building directory in the main lobby and the future
\ndirectory in the Building annex lobby. Landlord shall provide Tenant, at
\nLandlord’s sole cost and expense, building standard tenant identification on
\neach floor of the Premises.<\/p>\n
41<\/p>\n
(b) During the Lease Term and so long as Tenant
\noccupies at least one hundred thousand (100,000) rentable square feet in the
\nBuilding, Tenant shall have the exclusive right, at Tenant’s sole cost and
\nexpense, to erect and maintain signage with its corporate name and\/or logo,
\nsubject to Landlord’s approval, on the exterior of the Building in the
\ncurrent location of the Standard Oil plaque at the entrance to the Building
\nand at the top of Building directories within the main lobby and annex lobby
\nof the Building as set forth in Section 47(a) above. If Tenant does not
\noccupy at least one hundred thousand (100,000) rentable square feet in the
\nBuilding, Tenant shall have a nonexclusive right to erect and maintain such
\nsignage within the main lobby and annex lobby of the Building, in size and
\nlocation appropriately reflecting Tenant’s proportional occupancy of the
\nBuilding. Tenant shall comply, at its sole cost and expense, with any and all
\nlaws, statutes, ordinances and governmental rules, regulations or
\nrequirements applicable to such signage, including, without limitation, all
\nhistorical designation regulations and requirements (“Signage Legal
\nRequirements”), and all such signage shall be subject to Landlord’s prior
\napproval, which approval shall not be unreasonably withheld. Tenant may
\nrequest additional signage on the exterior of the building, subject to
\nLandlord’s approval. In the event that Landlord approves such additional
\nsignage on the exterior of the Building, Tenant shall be responsible for
\nobtaining all necessary approvals from governmental authorities and paying
\nall costs thereof, including, but not limited to any historical review
\nagencies, for said additional signage and complying with all Signage Legal
\nRequirements and paying all costs for the manufacturing and installation of
\nsaid signage. For purposes of this Section 47, space shall be deemed
\n“occupied” by Tenant if, and only if, such space is leased to Tenant and,
\nsuch space is not subject to a sublease or assignment by Tenant or any other
\nform of occupancy agreement between Tenant and any third party.<\/p>\n
(c) During the Lease Term and so long as Tenant
\noccupies at least one hundred thousand (100,000) rentable square feet in the
\nBuilding, (i) Tenant shall have the exclusive right to name the Building, as
\nreasonably approved by Landlord, and Landlord shall adopt and reasonably use
\nthe name as designated by Tenant on or before December 31, 1999, and
\n(ii) Tenant shall have the exclusive right to the exterior premier office
\nsignage at the main lobby entrance and the annex entrance to the Building.
\nNotwithstanding the foregoing, Tenant and any Affiliate shall have the right
\nto use its corporate name or a variation thereof as the Building name. Tenant
\nshall have the right to rename the Building up to four (4) times during the
\nLease Term, as extended pursuant to the terms herein, subject to Landlord’s
\nreasonable approval. Landlord shall use such name designated by Tenant in
\nBuilding marketing or promotional materials produced by or on behalf of
\nLandlord; provided, that, Tenant grants Landlord a license to use such name
\nfor said purposes and in the case of a logo, Tenant provides Landlord with
\nthe appropriate logo art work for use in connection with said materials.
\nTenant agrees that Landlord and other tenants of the Building may, but are
\nnot required to, use such name as part of their address. If Tenant changes
\nits designation of the Building name after Tenant’s initial designation of
\nthe Building name pursuant to this Section 47(c), Tenant shall reimburse
\nLandlord for all actual out-of-pocket costs and expenses incurred by Landlord
\nin reprinting the Building stationary, advertising and promotional materials
\nand making all required signage changes.<\/p>\n
(d) In the event that Tenant does not occupy at least
\none hundred thousand (100,000) rentable square feet in the Building, either
\nLandlord or Tenant shall have the right to <\/p>\n
42<\/p>\n
remove any signage erected by Tenant on the exterior of the Building at the
\nsole cost and expense of Tenant, upon which all use of the name designated by
\nTenant pursuant to Section 47(c) above to identify the Building shall cease
\nand Landlord shall thereafter have the right, in its sole and absolute
\ndiscretion, to cease using such name in Building marketing and promotional
\nmaterials and to rename the Building.<\/p>\n
(e) The rights granted to Tenant pursuant to this
\nSection shall be personal to Xoom.com, Inc. and any Affiliate, and such right
\nshall not inure to the benefit of any assignee or subtenant of Xoom.com, Inc.,
\nexcept to an Affiliate.<\/p>\n
(f) Notwithstanding anything to the contrary contained
\nherein, any signage rights specifically designated to retail tenants in the
\nBuilding shall be excluded from Tenant’s rights herein.<\/p>\n
48. HAZARDOUS SUBSTANCE DISCLOSURE.<\/p>\n
(a) California law requires landlords to disclose to
\ntenants the existence of certain Hazardous Materials. Accordingly, the
\nexistence of gasoline and other automotive fluids, asbestos containing
\nmaterials, maintenance fluids, copying fluids and other office supplies and
\nequipment, certain construction and finish materials, tobacco smoke,
\ncosmetics and other personal items must be disclosed. Gasoline and other
\nautomotive fluids are found in the garage area of the Building. Cleaning,
\nlubricating and hydraulic fluids used in the operation and maintenance of the
\nBuilding are found in the utility areas of the Building not generally
\naccessible to Building occupants or the public. Many Building occupants use
\ncopy machines and printers with associated fluids and toners, and pens,
\nmarkers, inks, and office equipment that may contain Hazardous Materials.
\nCertain adhesives, paints and other construction materials and finishes used
\nin portions of the Building may contain Hazardous Materials. Although smoking
\nis prohibited in the public areas or the Building, these areas may from time
\nto time be exposed to tobacco smoke. Building occupants and other persons
\nentering the Building from time to time may use or carry prescription and
\nnon-prescription drugs, perfumes, cosmetics and other toiletries, and foods
\nand beverages, some of which may contain Hazardous Materials.<\/p>\n
(b) Tenant acknowledges that certain reports and
\nletters (collectively “Reports”) dealing with the presence of ACMs in the
\nBuilding are available for its review in the property management office of
\nthe Building. The Reports contain the specific locations within the Building
\nwhere ACMs are present, describe potential health risks or impacts that may
\nresult from exposure to asbestos contained in the ACMs, and set forth certain
\ninformation to convey that moving, drilling, boring or otherwise disturbing
\nthe ACMs may present a health risk, and consequently, should not be attempted
\nby any person who is not qualified to handle ACMs. Tenant acknowledges that
\nit is aware of the existence, location and condition of ACMs, both friable
\nand non-friable in the Building and (if applicable) in the Premises. Tenant
\nagrees that it has been afforded full and adequate opportunity to inspect or
\notherwise evaluate asbestos and ACMs in the Building and Premises and that,
\nsubject to the Work Letter, by taking possession of the Premises, it accepts
\nthe condition of such Premises and the Building with respect thereto. During
\nthe Lease Term, and so long as Tenant occupies any portion of the Premises,
\nTenant shall <\/p>\n
43<\/p>\n
familiarize itself and comply with all recommendations under the Reports,
\nwith respect to the maintenance of any and all ACMs in the Premises so as to
\nprevent the release of any asbestos fibers or other ACMs. Tenant shall be
\nresponsible for insuring that all employees of Tenant and all individuals
\nentering the Premises are aware of the matters set forth in the Reports with
\nrespect to the presence of ACMs in the Premises and the Building. To the
\nextent any individuals enter the Premises, who are not engaged by Landlord,
\nto perform maintenance, repairs, alterations or renovations, such individuals
\nwill be apprised by Tenant of the presence of ACMs and Tenant will make the
\ncontents of the Reports available to such individuals to ensure that all
\nstatutes, codes and regulations applicable to the handling of all ACMs in the
\nBuilding. Tenant shall inform Landlord in a timely manner of any work to be
\nundertaken in the Premises that may disturb any ACMs, so that Landlord may
\nobtain a release, in form satisfactory to Landlord in its sole discretion,
\nfrom those involved in such activities with respect to any liability accruing
\nfrom such work undertaken in the Premises. Such notification shall be in
\naddition to, and not in lieu of, any and all notifications and consents
\nrequired under this Lease with respect to alterations or other work in the
\nPremises by Tenant. Tenant shall indemnify, defend, protect and hold Landlord
\nharmless from any and all claims, losses, liabilities or damages, including
\nattorney’s fees and costs, resulting from Tenant’s failure to comply with the
\nforegoing provisions related to ACMs and asbestos, including, without
\nlimitation, the failure to notify Landlord in the manner described above.
\nTenant will further indemnify, defend, protect and hold Landlord harmless
\nfrom any and all claims (known and unknown), losses, liabilities or damages
\n(including attorneys’ fees) relating to exposure to or injury caused or
\naggravated by ACMs, directly or indirectly, from Tenant’s failure to follow
\nthe prescribed safety requirements, precautions and procedures outlined in
\nthe Reports as the same may be hereinafter modified, updated or revised; or
\nwhich results from Tenant’s failure to inform individuals and employees of
\nTenant of the contents of the Reports, including, without limitation, failure
\nto so inform individuals who are so undertaking alterations, renovations,
\nmaintenance or repairs of ACMs containing areas of the Premises or the
\nBuilding; or which results from any failure of such individuals or Tenant’s
\nemployees to comply with recommendations or requirements set forth in the
\nReports. By its execution of this Lease, Tenant acknowledges that the notice
\nset forth hereinabove shall constitute the notice required under California
\nHealth and Safety Code Section 25915.5.<\/p>\n
(c) Tenant shall have no liability for the removal or
\nremediation of Hazardous Material existing in the Building prior to the date
\nof the execution and delivery of this Lease. Subject to Tenant’s obligations
\nin Section 48, Landlord shall indemnify, defend, protect and hold Tenant
\nharmless from any and all claims, losses, liabilities or damages, including
\nreasonable attorney’s fees and costs, resulting from or arising out of the
\npresence of any Hazardous Material found on, in or under the Building or
\nPremises, other than any Hazardous Materials brought into the Premises or
\nBuilding by Tenant and Tenant’s agents, employees and contractors and any
\nclaims, losses, liabilities or damages resulting from or arising out of the
\nnegligence of Tenant, its agents, employees, contractors or invitees.<\/p>\n
49. REAL ESTATE BROKERS. Landlord and Tenant each represents
\nand warrants to the other that such party has negotiated this Lease directly
\nwith the Real Estate Brokers identified in the Basic Lease Information and
\nhas not authorized or employed, or acted by implication to authorize or to
\nemploy, any other real estate broker or salesman to act for such party in <\/p>\n
44<\/p>\n
connection with this Lease. All leasing commissions due in connection with
\nthis Lease shall be paid by Landlord in accordance with (i) a separate
\nagreement between Landlord and Grubb & Ellis, and (ii) that certain Brokerage
\nCommission Agreement by and between Landlord and The Robax Group, Inc.,
\ndba Rosen & Reynolds. Landlord shall indemnify, defend and hold Tenant
\nharmless from and against any and all claims for said leasing commissions by
\nthe Real Estate Brokers identified in the Basic Lease Information. Each party
\nshall indemnify, defend and hold the other harmless from and against any and
\nall claims by any real estate broker or salesman other than the Real Estate
\nBrokers identified in the Basic Lease Information for a commission, finder’s
\nfee or other compensation as a result of the inaccuracy of such party’s
\nrepresentation above.<\/p>\n
50. NOTICE TO MORTGAGEE; FINANCIAL STATEMENT. If the holder of
\nany mortgage covering all or a portion of the Premises shall give notice to
\nTenant that it is the holder of such mortgage and such notice includes the
\naddress to which notices to such mortgagee are to be sent, then Tenant agrees
\nto give to said holder of such mortgage notice simultaneously with any notice
\ngiven to Landlord to correct any default of Landlord and agrees that the
\nholder of such mortgage shall have the right, within sixty (60) days after
\nreceipt of said notice, to commence correction of such default and diligently
\nprosecute completion thereof before Tenant may take any action under this
\nLease by reason of any default. Should Landlord or mortgage holder under this
\nLease request a copy of Tenant’s current financial statement, Tenant agrees
\nto furnish a certified copy of same to Landlord within fifteen (15) days of
\nsuch request; provided, that, so long as Tenant is a public company, Tenant
\nagrees to provide the most recent financial statements publicly available.<\/p>\n
51. OPTION TO EXTEND.<\/p>\n
(a) Tenant shall have two (2) consecutive options to
\nextend the Term of this Lease with respect to all of the Premises for a
\nperiod of five (5) years each commencing on the Term Expiration Date (the
\n“Extension Period”) subject to the conditions contained in this Section. The
\noptions to extend are sometimes referred to collectively herein as an “Option
\nto Extend.”<\/p>\n
(i) The Option to Extend shall be exercised,
\nif at all, by written notice of exercise given to Landlord by Tenant not more
\nthan eighteen (18) months nor less than twelve (12) months prior to the
\nexpiration date of the Term Expiration Date. In the event that Tenant fails
\nto deliver such exercise notice to Landlord on or before the date that is
\nexactly twelve (12) months prior to the Term Expiration Date, the Option to
\nExtend shall be null and void and of no further force or effect.<\/p>\n
(ii) Anything herein to the contrary
\nnotwithstanding, if an Event of Default has occurred with respect to Tenant
\nwhich remains uncured following the expiration of any applicable notice and
\ncure period, either at the time Tenant exercises the Option to Extend or on
\nthe commencement date of the Extension Period, then Landlord shall have, in
\naddition to all of Landlord’s other rights and remedies provided in this
\nLease, the right to terminate the Option <\/p>\n
45<\/p>\n
to Extend upon thirty (30) days written notice to Tenant (with Tenant having
\nfailed to cure the default during such thirty (30) day period).<\/p>\n
(b) In the event the Option to Extend is exercised in
\na timely fashion, this Lease shall be extended for an additional five (5)
\nyears upon all of the terms and conditions of this Lease; provided, that, the
\nBase Expense Year and Base Tax Year shall be adjusted to the calendar year in
\nwhich each Option to Extend is effective (however, if the Option to Extend is
\neffective during the last three (3) months of a calendar year, the Base
\nExpense Year and Base Tax Year shall be the next calendar year); and provided
\nfurther that, the Base Monthly Rent and additional rent for such Extension
\nPeriod shall be adjusted to equal ninety-seven percent (97%) of the “Fair
\nMarket Rent” for each floor of the Premises and provided further that there
\nshall be no tenant improvement allowance and, upon the exercise of the second
\nOption to Extend, no further option to extend the Lease Term. For purposes
\nhereof, “Fair Market Rent” shall mean the prevailing gross rental rate per
\nannum per square foot as of the date six (6) months prior to the commencement
\nof the Extension Period, including, without limitation, base rent, additional
\nrent and all other monetary payments (including base rent increases and
\nstep-ups) agreed to be paid by new tenants generally for similar space in a
\ncondition (including the state of build out) and location (within the
\nBuilding and any comparison buildings) comparable to each floor of the
\nPremises in comparable buildings for five (5) year terms, pursuant to new
\nleases entered into by such other tenants, and considering any rental
\nabatement and any other similar concessions granted in connection with new
\nleases for such comparable space (including tenant improvement allowances and
\nother similar items but excluding the payment of any leasing commissions in
\ncomparable transactions).<\/p>\n
(c) On or before the date that is nine (9) months
\nprior to the commencement of the Extension Period, Landlord shall notify
\nTenant in writing of Landlord’s proposed Fair Market Rental for the term of
\nthe Extension Period, based on the provisions of this Section above. Within
\nthirty (30) days after receipt of such notice from Landlord, Tenant shall
\nhave the right either to (i) accept Landlord’s statement of Fair Market Rent
\nas the Fair Market Rental for the Extension Period, or (ii) elect to
\narbitrate Landlord’s estimate of Fair Market Rent, such arbitration to be
\nconducted pursuant to the provisions hereof. Failure on the part of Tenant to
\nrequire arbitration of Fair Market Rent within thirty (30) such day period
\nshall constitute acceptance of the Fair Market Rental for the Extension
\nPeriod, as proposed by Landlord. If Tenant elects arbitration, the
\narbitration shall be concluded as expeditiously as reasonably possible with
\nthe goal of being concluded within ninety (90) days after the date of
\nTenant’s election. To the extent that arbitration has not been completed
\nprior to commencement of the Extension Period, Tenant shall pay Base Monthly
\nRental, additional rent and all other charges in an amount equal to the Fair
\nMarket Rent proposed by Landlord, and the Base Monthly Rental, additional
\nrent and all other charges shall be adjusted, if necessary, once the Fair
\nMarket Rent is ultimately determined by arbitration. Should the monthly
\ninstallments of Base Monthly Rental, additional rent and all other charges as
\nadjusted for the period following the completion of such arbitration exceed
\nthe amount previously paid by Tenant for such period, Tenant shall pay the
\nentire difference to Landlord within thirty (30) days following delivery of
\nwritten demand. Should the monthly installments of Base Monthly Rental,
\nadditional rent and all other charges as adjusted following completion of
\nsuch arbitration be less than the amount previously paid by <\/p>\n
46<\/p>\n
Tenant for such period, Landlord shall credit such difference against the
\nnext installment(s) of Base Monthly Rental coming due. Upon determination of
\nthe Fair Market Rent for the Extension Period (whether by mutual agreement or
\nby arbitration), the parties shall enter into an amendment to this Lease
\nmemorializing such determination.<\/p>\n
(d) In the event of arbitration, the judgment or the
\naward rendered in any such arbitration may be entered in any court having
\njurisdiction and shall be final and binding between the parties. The
\narbitration shall be conducted and determined in the City and County of San
\nFrancisco in accordance with the then prevailing rules of the American
\nArbitration Association or its successor for arbitration of commercial
\ndisputes except to the extent that the procedures mandated by said rules
\nshall be modified as follows:<\/p>\n
(i) Tenant shall make demand for arbitration
\nin writing within thirty (30) days after service of Landlord’s determination
\nof Fair Market Rent given as provided above, specifying therein the name and
\naddress of the person to act as the arbitrator on its behalf. The arbitrator
\nshall be qualified as a real estate appraiser with at least five (5) years
\nexperience or a real estate broker with at least ten (10) years experience
\nand otherwise familiar with the Fair Market Rent of office space in the
\nabove-described area who would qualify as an expert witness over objection to
\ngive opinion testimony addressed to the issue in a court of competent
\njurisdiction. Failure on the part of Tenant to make a proper demand in a
\ntimely manner for such arbitration shall constitute a waiver of the right
\nthereto. Within fifteen (15), days after the service of the demand for
\narbitration, Landlord shall give notice to Tenant, specifying the name and
\naddress of the person designated by Landlord to act as arbitrator on its
\nbehalf who shall be similarly qualified. If Landlord fails to notify Tenant
\nof the appointment of its arbitrator, within or by the time above specified,
\nthen the arbitrator appointed by Tenant shall be the arbitrator to determine
\nthe issue.<\/p>\n
(ii) In the event that two (2) arbitrators are
\nchosen pursuant to the provisions of this Section, the arbitrators so chosen
\nshall, within fifteen (15) days after the second arbitrator is appointed,
\nappoint a third arbitrator, who shall be a competent and impartial person
\nwith qualifications similar to those required of the first two (2)
\narbitrators pursuant to subparagraph (d)(1). In the event the two (2)
\narbitrators are unable to agree upon such appointment within ten (10) days
\nafter expiration of said fifteen (15) day period, the third arbitrator shall
\nbe selected by the parties themselves, if they can agree thereon, within a
\nfurther period of fifteen (15) days. If the parties do not so agree, then
\neither party, on behalf of both, may request appointment of such a qualified
\nperson by the then Chief Judge of the United States District Court having
\njurisdiction over the City and County of San Francisco, acting in his private
\nand not in his official capacity, and the other party shall not raise any
\nquestion as to such Judge’s full power and jurisdiction to entertain the
\napplication for and make the appointment. The third arbitrator shall decide
\nthe dispute if it has not previously been resolved by following the procedure
\nset forth below.<\/p>\n
(iii) Where an issue as to Fair Market Rent
\ncannot be resolved by settlement between the parties during the course of
\narbitration, the issue shall be resolved by the third arbitrator in
\naccordance with the following procedure. The arbitrator selected by each of <\/p>\n
47<\/p>\n
the parties shall state in writing his or her determination of the Fair
\nMarket Rent supported by the reasons therefor with counterpart copies to each
\nparty. The arbitrator shall arrange for a simultaneous exchange of the
\ndetermination of Fair Market Rent. The role of the third arbitrator shall be
\nto select which of the two proposed determinations of Fair Market Rent most
\nclosely approximates his or her determination of Fair Market Rent. The third
\narbitrator shall have no right to propose a middle ground or any modification
\nof either of the two proposed determinations of Fair Market Rent. The
\nresolution he or she chooses as most closely approximating his or her
\ndetermination shall constitute the decision of the arbitrators and be final
\nand binding upon the parties.<\/p>\n
(iv) In the event of a failure, refusal or
\ninability of any arbitrator to act, his or her successor shall be appointed
\nby him, but in the case of the third arbitrator, his or her successor shall
\nbe appointed in the same manner as provided for appointment of the third
\narbitrator. The arbitrators shall decide the issue within fifteen (15) days
\nafter the appointment of the third arbitrator. Any decision in which the
\narbitrator appointed by Landlord and the arbitrator appointed by Tenant
\nconcur shall be binding and conclusive upon the parties. Each party shall pay
\nthe fee and expenses of its respective arbitrator and both shall share the
\nfee and expenses of the third arbitrator. The attorneys’ fees and expenses of
\ncounsel for the respective parties and of witnesses shall be paid by the
\nrespective party engaging such counsel or calling such witnesses.<\/p>\n
(v) The third arbitrator shall have the right
\nto consult experts and competent authorities to obtain factual information or
\nevidence pertaining to a determination of Fair Market Rent, but any such
\nconsultation shall be made in the presence of both parties with full right on
\ntheir part to cross-examine. The third arbitrator shall render his or her
\ndecision in writing with counterpart copies to each party. The third
\narbitrator shall have no power to modify the provisions of this Lease.<\/p>\n
(e) The Option to Extend granted to Tenant pursuant to
\nthis Section shall be personal to Xoom.com, Inc. and any Affiliate, and such
\nright shall not inure to the benefit of any assignee or subtenant of
\nXoom.com, Inc., except to an Affiliate.<\/p>\n
52. RIGHT OF FIRST REFUSAL.<\/p>\n
(a) Tenant shall have a continuing right of first
\nrefusal with respect to any contiguous space in the Building of ten thousand
\n(10,000) square feet or greater as measured by the ANSI\/BOMA Z65.1-1996
\nstandards that becomes available during the term of the Lease, excluding any
\nspace on the ground floor of the Building (the “Refusal Space”), subject to
\nthe existing rights of existing tenants to the Refusal Space. Provided that
\nno Event of Default has occurred which has not been cured, if Landlord shall
\nreceive an offer to lease any portion of the Refusal Space, which offer
\nLandlord shall desire to accept, Landlord shall give written notice of the
\nsaid offer to Tenant (“Landlord’s Refusal Notice”). The Landlord’s Refusal
\nNotice shall set forth in reasonable detail the terms of the offer, including
\na description of the space, the Base Monthly Rental (including escalations
\nthereof), condition of the space (i.e., as is, building standard construction,
\ntenant improvement allowances), taxes, maintenance costs and other
\npass-throughs, term and any other material terms of the offer. Within ten
\n(10) days of receiving <\/p>\n
48<\/p>\n
Landlord’s Refusal Notice, Tenant may elect, by written notice to Landlord,
\nto accept the Refusal Space upon the terms and conditions stated in the
\nLandlord’s Refusal Notice. Tenant’s failure to make a timely election to
\naccept the specified space shall be deemed a rejection of the Refusal Space.
\nUpon Tenant’s rejection or deemed rejection of the Refusal Space, Landlord
\nshall be free to accept the offer to lease and lease the space to a third
\nparty pursuant to the terms thereof. Upon Tenant’s acceptance of the Refusal
\nSpace, the parties shall prepare and execute an amendment incorporating the
\nRefusal Space into the Lease subject to all of the terms, covenants, and
\nconditions herein, except as modified by the terms of the offer. The right
\ncontained in this Section is personal to Xoom.com, Inc. and its Affiliates,
\nand such right shall not inure to the benefit of any assignee or subtenant of
\nXoom.com, Inc., except for its Affiliates and such right shall be subject to
\nthe provisions of Section 18.<\/p>\n
(b) Tenant’s rights under this Section are subject and
\nsubordinate to and only to the rights of the existing tenants of the Building
\nwhich currently have expansion rights, rights of first refusal or rights of
\nfirst negotiation with respect to space on the Refusal Space. A list of said
\nexisting tenants is set forth on SCHEDULE 1 attached hereto and made a part
\nhereof.<\/p>\n
Notwithstanding the foregoing, Landlord shall have the right to
\nnegotiate amendments to the Lease of any tenant in the Building to provide
\nfor an extension of said tenant’s expiration of Lease Term for a reasonable
\nperiod of time to facilitate said tenant’s vacation of its Premises.<\/p>\n
53. PARKING.<\/p>\n
(a) Tenant shall lease two (2) parking stalls in the
\nBuilding’s parking garage (the “Parking Garage”) in connection with the
\n8th Floor, an additional two (2) parking stalls in connection with the
\n9th Floor, an additional (two) parking stalls in connection with the
\n19th Floor, an additional four (4) parking stalls in connection with the
\n12th and 13th Floors, an additional six (6) parking stalls in connection with
\nthe 20th and 21st Floors and an additional two (2) parking stalls in
\nconnection with the 22nd Floor, for an aggregate total of eighteen (18)
\nparking stalls (the “Parking Stalls”). If Tenant leases any additional full
\nfloor space in the Building, Tenant shall be granted the option to lease up
\nto two (2) additional parking stalls for each additional full floor space.<\/p>\n
(b) Tenant shall execute the standard form parking
\nlease for the Parking Garage with Landlord’s third-party contractor (the
\n“Garage Operator”) within ten (10) days after mutual execution of the Lease
\n(the “Parking Lease”). The lease term for a Parking Stall(s) shall commence
\non the Term Commencement Date of the floor to which the Parking Stall(s) is
\nattributable. Tenant’s use of the Parking Stalls shall subject to all other
\nterms and conditions contained in the Parking Lease, including without
\nlimitation the then-current monthly rental rate per parking stall, as the
\nsame may be adjusted from time to time by Landlord’s third-party contractor.
\nLandlord agrees that Tenant, to the extent Tenant has a Parking Garage
\nmonthly pass, shall have access to the Parking Garage twenty-four (24) hours
\nper day, seven (7) days a week. From time to time during the Term, Tenant
\nshall be entitled to decrease (on thirty (30) days’ prior notice to the third
\nparty parking operators with a copy to Landlord) or increase (on three (3) <\/p>\n
49<\/p>\n
months’ prior notice to such third party parking operator with a copy to
\nLandlord) its number of parking spaces up to the maximum number of Parking
\nStalls specified above.<\/p>\n
54. BICYCLE PARKING.<\/p>\n
(a) Landlord shall cooperate to provide Tenant access
\nto bicycle parking in the Parking Garage, subject to the rights of the Garage
\nOperator under the terms of its lease for the Parking Garage. Any additional
\ncompliance with applicable codes, regulations and law required as a result of
\nsuch bicycle parking shall be Tenant’s obligation, including, but not limited
\nto fees and expenses in connection therewith.<\/p>\n
(b) If Tenant provides bicycle parking in Tenant’s
\nPremises, all bicycles are required to enter to and from the Building through
\nthe Parking Garage. Tenant and Tenant’s employees, agents or contractors may
\nonly bring bicycles to and from the Premises via the freight elevator.<\/p>\n
(c) In the event that Tenant or Tenant’s employees,
\nagents or contractors bring bicycles to and from Tenant’s Premises through
\nthe lobby areas of the Building, as opposed to through the Parking Garage and
\nthe freight elevator, Landlord shall provide written notice of such activity
\nto Tenant (“Bicycle Violation Notice”). After the fifth Bicycle Violation
\nNotice in any consecutive twelve (12) month period, Tenant shall be required
\nto reimburse Landlord for the cost of providing a security guard in the lobby
\narea in order to enforce Tenant’s obligations under this Section. In the
\nevent that a security guard is required pursuant to this Section, Landlord
\nand Tenant shall review the necessity for such guard after twelve (12) months
\nafter the security guard is first required.<\/p>\n
55. INTERNAL FIRE STAIRS. Tenant shall have the right to use
\nthe internal stair cases and internal fire-stairs in the Building for travel
\nbetween the floors in the Premises, subject to any applicable governmental
\nlaw, regulation or code related restriction. Tenant shall be responsible for
\nany and all costs in connection with the installation of access code key pads
\non each floor and all code related expenses if any.<\/p>\n
56. DEDICATED ELEVATOR. Landlord shall provide Tenant with
\naccess to one elevator in the annex portion of the Building that exclusively
\nservices and provides direct access to the floors on which the Premises are
\nlocated, including, but not limited to the 22nd Floor. Notwithstanding
\nanything to the contrary contained herein, in the event that Tenant occupies
\nless than one hundred thousand (100,000) rentable square feet in the
\nBuilding, Tenant shall no longer be entitled to an elevator that exclusively
\nservices Tenant’s Premises. For purposes of this Section 56, space shall be
\ndeemed “occupied” by Tenant if, and only if, such space is leased to Tenant
\nand, such space is not subject to a sublease or assignment by Tenant or any
\nother form of occupancy agreement between Tenant and any third party.<\/p>\n
57. YEAR 2000. Landlord agrees that Landlord shall pay all
\ncosts necessary to correct any problems, and will cause such problems to be
\ncorrected, in the operation of the operating systems in the Building
\nresulting from any deficiencies in the computer software of the Building to
\nconvert to dates after January 1, 2000. All such costs shall be excluded from
\nExpenses.<\/p>\n
50<\/p>\n
IN WITNESS WHEREOF, the parties have executed this Lease on the
\nrespective dates indicated below:<\/p>\n
TENANT: LANDLORD:<\/p>\n
Xoom.com, Inc., a OAIC Bush Street, LLC,
\nDelaware corporation a Delaware limited liability company<\/p>\n
By: \/s\/ Chris Kitze By: \/s\/ Gregory Breskin
\n —————————- ——————————
\nName: Chris Kitze Name: Gregory Breskin
\n ————————– —————————–
\nIts: Chairman Its: Vice President
\n ————————— —————————–<\/p>\n
Date of Execution: 8\/9\/99 Date of Execution: Aug. 9, 1999
\n ————- ————–<\/p>\n
By: \/s\/ John Harbottle By: \/s\/ Christine Reich
\n —————————– ———————————
\nName: John Harbottle Name: Christine Reich
\n ————————— ——————————-
\nIts: CFO Its: President
\n —————————- ——————————–<\/p>\n
51<\/p>\n
EXHIBIT A<\/p>\n
DIAGRAMS OF FLOOR PLANS
\n FOR 8TH, 9TH, 12TH, 13TH,
\n 19TH, 20TH, 21ST, AND 22ND FLOORS<\/p>\n
A-1<\/p>\n
EXHIBIT B<\/p>\n
RULES AND REGULATIONS<\/p>\n
1. The sidewalks, halls, passages, exits, entrances, shopping
\nmalls, elevators, escalators and stairways of the Building shall not be
\nobstructed by any of the tenants or used by them for any purpose other than for
\ningress to and egress from their respective premises. The halls, passages,
\nexits, entrances, shopping malls, elevators, escalators and stairways are not
\nfor the general public, and Landlord shall in all cases retain the right to
\ncontrol and prevent access thereto of all persons whose presence in the judgment
\nof Landlord would be prejudicial to the safety, character, reputation and
\ninterests of the Building and its tenants, provided that nothing herein
\ncontained shall be construed to prevent such access to persons with whom any
\ntenant normally deals in the ordinary course of its business, unless such
\npersons are engaged in illegal activities. No tenant and no employee or invitee
\nof any tenant shall go upon the roof of the Building except such roof or portion
\nthereof as may be contiguous to the premises of a particular tenant and may be
\ndesignated in writing by Landlord as a roof deck or roof garden area; provided
\nthat, so long as Tenant remains in occupancy of the 22nd Floor, the loggia area
\non the 22nd Floor shall be designated a roof garden area for Tenant’s exclusive
\nuse.<\/p>\n
2. No sign, placard, picture, name, advertisement or notice
\nvisible from the exterior of any tenant’s premises shall be inscribed, painted,
\naffixed or otherwise displayed by any tenant on any part of the Building without
\nthe prior written consent of Landlord. Landlord will adopt and furnish to
\ntenants general guidelines relating to signs inside the Building on the office
\nfloors. Each tenant shall conform to such guidelines, but may request approval
\nof Landlord for modifications, which approval will not be unreasonably withheld.
\nAll approved signs or lettering on doors shall be printed, painted, affixed or
\ninscribed at the expense of the Tenant by a person approved by Landlord, which
\napproval will not be unreasonably withheld. Material visible from outside the
\nBuilding will not be permitted.<\/p>\n
3. The Premises shall not be used for the storage of merchandise
\nheld for sale to the general public or for lodging; provided that, the Premises
\nmay be used for the incidental sale of merchandise to Tenant’s employees of up
\nto Twenty-Five Thousand Dollars ($25,000) per year, subject to the rights of
\nother current and future tenants in the Building and subject to Tenant’s
\ncompliance with all applicable laws, including, without limitation, zoning laws,
\nwith respect thereto. No cooking shall be done or permitted by any tenant on the
\npremises, except that use by the tenant of food and beverage vending machines
\nand Underwriters’ Laboratory approved microwave ovens and equipment for brewing
\ncoffee, tea, hot chocolate and similar beverages shall be permitted, provided
\nthat such use is in accordance with all applicable federal, state and city laws,
\ncodes, ordinances, rules and regulations.<\/p>\n
B-1<\/p>\n
4. No tenant shall employ any person or persons other than
\nLandlord’s janitorial service for the purpose of cleaning the premises, unless
\notherwise approved by Landlord; provided, that, Tenant may contract for
\nadditional janitorial services, subject to Landlord’s reasonable approval
\nthereof. No person or persons other than those approved by Landlord shall be
\npermitted to enter the Building for the purpose of cleaning the same. No tenant
\nshall cause any unnecessary labor by reason of such tenant’s carelessness or
\nindifference in the preservation of good order and cleanliness. Janitor service
\nwill not be furnished on nights when rooms are occupied after 9:30 p.m. unless,
\nby prior arrangement with Landlord, service is extended to a later hour for
\nspecifically designated rooms.<\/p>\n
5. Landlord will furnish each tenant, free of charge, with two
\nkeys to each door lock in its premises. Landlord may make a reasonable charge
\nfor any additional keys. No tenant shall have any keys made. No tenant shall
\nalter any lock or install a new or additional lock or any bolt on any door of
\nits premises without the prior consent of Landlord. The tenant shall in each
\ncase furnish Landlord with a key for any such lock. Each tenant, upon the
\ntermination of its tenancy, shall deliver to Landlord all keys to doors in the
\nBuilding which shall have been furnished to the tenant.<\/p>\n
6. The freight elevator shall be available for use by all tenants
\nin the Building, subject to such reasonable scheduling as Landlord in its
\ndiscretion shall deem appropriate. The persons employed to move such equipment
\nin or out of the Building must be acceptable to Landlord. Landlord shall have
\nthe right to prescribe the weight, size and position of all equipment,
\nmaterials, furniture or other property brought into the Building. Heavy objects
\nshall, if considered necessary by Landlord, stand on wood strips of such
\nthickness as is necessary to properly distribute the weight. Landlord will not
\nbe responsible for loss of or damage to any such property from any cause, and
\nall damage done to the Building by moving or maintaining such property shall be
\nrepaired at the expense of the tenant.<\/p>\n
7. No tenant shall use or keep in the premises or the Building
\nany kerosene, gasoline or inflammable or combustible fluid or material other
\nthan limited quantities thereof reasonably necessary for the operation or
\nmaintenance of office equipment, or, without Landlord’s prior approval, use any
\nmethod of heating or air conditioning other than that supplied by Landlord.<\/p>\n
8. No tenant shall use or keep or permit to be used or kept any
\nfoul or noxious gas or substance in the premises, or permit or suffer the
\npremises to be occupied or used in a manner offensive or objectionable to
\nLandlord or other occupants of the Building by reason of noise, odors or
\nvibrations, or interfere in any way with other tenants or those having business
\ntherein.<\/p>\n
B-2<\/p>\n
9. Landlord reserves the right to exclude from the Building
\nbetween the hours of 6 p.m. and 7 a.m. and at all hours on Saturdays, Sundays
\nand legal holidays all persons who do not present a pass signed by Landlord to
\nthe Building. Landlord will furnish passes to persons for whom any tenant
\nrequests the same in writing. Each tenant shall be responsible for all persons
\nfor whom it requests passes and shall be liable to Landlord for all acts of such
\npersons. Landlord shall in no case be liable for damages for any error with
\nregard to the admission to or exclusion from the Building of any person. In the
\ncase of invasion, mob, riot, public excitement or other circumstances rendering
\nsuch action advisable in Landlord’s opinion, Landlord reserves the right to
\nprevent access to the Building during the continuance of the same by such action
\nas Landlord may deem appropriate.<\/p>\n
11. The directories of the Building, located in the two lobby
\nareas, will be provided for the display of the name and location of tenants and
\na reasonable number of the principal officers and employees of tenants (based on
\na pro rata share between all of the tenants in the Building, the denominator of
\nwhich shall be the total directory space available in the two lobby areas), and
\nLandlord reserves the right to exclude any other names therefrom. Tenant shall
\nhave the right to directory space in both of the lobby area directories, but in
\nno event shall Tenant have more than its pro rata share of directory space. Any
\nadditional name which a tenant desires to have added to the directory shall be
\nsubject to Landlord’s approval and may be subject to a charge therefor.<\/p>\n
12. No curtains, draperies, blinds, shutters, shades, screens or
\nother coverings, hangings or decorations shall be attached to, hung or placed
\nin, or used in connection with any exterior window in the Building without the
\nprior consent of Landlord. If consented to by Landlord, such items shall be
\ninstalled on the office side of the standard window covering and shall in no way
\nbe visible from the exterior of the Building.<\/p>\n
13. Messenger services and suppliers of bottled water, food,
\nbeverages, and other products or services shall be subject to such reasonable
\nregulations as may be adopted by Landlord. Landlord may establish a central
\nreceiving station in the Building for delivery and pick-up by all messenger
\nservices, and may limit delivery and pick-up at tenant premises to Building
\npersonnel.<\/p>\n
14. Each tenant shall see that the doors of its premises are
\nclosed and locked and that all water faucets or apparatus, cooking facilities
\nand office equipment (excluding office equipment required to be operative at all
\ntimes) are shut off before the tenant or its employees leave the premises at
\nnight, so as to prevent waste or damage, and for any default or carelessness in
\nthis regard the tenant shall be responsible for any damage sustained by other
\ntenants or occupants of the Building or Landlord. On multiple-tenancy floors,
\nall tenants shall keep the doors to the Building corridors closed at all times
\nexcept for ingress and egress.<\/p>\n
B-3<\/p>\n
15. The toilets, urinals, wash bowls and other rest room
\nfacilities shall not be used for any purpose other than that for which they were
\nconstructed, no foreign substance of any kind whatsoever shall be thrown
\ntherein, and the expense of any breakage, stoppage or damage resulting from the
\nviolation of this rule shall be borne by the tenant who, or whose employees or
\ninvitees, shall have caused it.<\/p>\n
16. Except with the prior consent of Landlord, no tenant shall
\nsell, or permit the sale at retail, of newspapers, magazines, periodicals,
\ntheater tickets or any other goods or merchandise to the general public in or on
\nthe premises, nor shall any tenant carry on, or permit or allow any employee or
\nother person to carry on, the business of stenography, typewriting or any
\nsimilar business or from the premises for the service or accommodation of
\noccupants of any other portion of the Building, nor shall the premise of any
\ntenant be used for manufacturing of any kind, or any business or activity other
\nthan that specifically provided for in such tenant’s lease.<\/p>\n
17. No tenant shall install any antenna, loudspeaker, or other
\ndevice on the roof or exterior walls of the Building.<\/p>\n
18. There shall not be used in any portion of the Building, by any
\ntenant or its invitees, any hand trucks or other material handling equipment
\nexcept those equipped with rubber tires and side guards unless otherwise
\napproved by Landlord.<\/p>\n
19. Each tenant shall store its refuse within its premises. No
\nmaterial shall be placed in the refuse boxes or receptacles if such material is
\nof such nature that it may not be disposed of in the ordinary and customary
\nmanner of removing and disposing of refuse in the City and County of San
\nFrancisco without being in violation of any law or ordinance governing such
\ndisposal. All refuse disposal shall be made only through entryways and elevators
\nprovided for such purposes and at such times as Landlord shall designate.<\/p>\n
20. Canvassing, peddling, soliciting, and distribution of
\nhandbills or any other written materials in the Building are prohibited, and
\neach tenant shall cooperate to prevent the same.<\/p>\n
21. The requirements of the tenants will be attended to only upon
\napplication by telephone or in person at the office of the Building. Employees
\nof Landlord shall not perform any work or do anything outside of their regular
\nduties unless under special instructions from Landlord.<\/p>\n
22. Landlord may waive any one or more of these Rules and
\nRegulations for the benefit of any particular tenant or tenants, but no such
\nwaiver by Landlord shall be construed as a wavier of such Rules and Regulations
\nin favor of any other tenant or tenants, nor prevent Landlord from thereafter
\nenforcing any such Rules and Regulations against any or all of the tenants of
\nthe Building.<\/p>\n
23. These Rules and Regulations are in addition to, and shall not
\nbe construed to in any way modify or amend, in whole or in part, the terms,
\ncovenants, agreements and conditions of any lease of premises in the Building.<\/p>\n
B-4<\/p>\n
24. Landlord reserves the right to make such other and reasonable
\nrules and regulations as in its judgment may from time to time be needed for the
\nsafety, care and cleanliness of the Building, and for the preservation of good
\norder therein.<\/p>\n
B-5<\/p>\n
EXHIBIT C<\/p>\n
Work Letter and Construction Agreement<\/p>\n
THIS AGREEMENT supplements the Lease dated for reference
\npurposes only as of August 13, 1999 (the “Lease”) executed concurrently
\nherewith by OAIC BUSH STREET, LLC, a Delaware limited liability company, as
\nLandlord, and Xoom.com, Inc., a Delaware corporation , as Tenant.<\/p>\n
1. GENERAL.<\/p>\n
(a) The purpose of this Work Letter and Construction
\nAgreement (“Work Letter”) is to set forth how the Tenant Work (as defined
\nbelow) in the Premises (as defined in the Lease) are to be designed and
\nconstructed, who will pay for the design and construction of the Tenant Work,
\nand the time schedule for completion of the Tenant Work.<\/p>\n
(b) Except as otherwise defined in this Work Letter, all
\ncapitalized terms utilized in this Work Letter shall have the meanings set forth
\nin the Lease.<\/p>\n
(c) The provisions of the Lease, except where clearly
\ninconsistent or inapplicable to this Work Letter, are incorporated into this
\nWork Letter.<\/p>\n
(d) Except for the Tenant Work and Base Building Work (as
\ndefined below) to be constructed pursuant to this Work Letter, Tenant accepts
\nthe Premises in their “AS IS” condition and acknowledges that it has had an
\nopportunity to inspect the Premises and the Building prior to signing the Lease
\nand finds them to be in satisfactory condition. Notwithstanding anything to the
\ncontrary in the preceding sentence, Landlord hereby assumes full responsibility,
\nat its sole cost, for the removal, encapsulation or other maintenance of
\nasbestos which is encountered during the construction of Part I of the Base
\nBuilding Work and the Tenant Work, provided that the decision to remove,
\nencapsulate or perform other maintenance of such Hazardous Materials shall be
\nmade at Landlord’s sole discretion and Landlord shall notify Tenant in writing
\nupon substantial completion of Part I of the Base Building Work of the
\nlocation(s) of encapsulated Hazardous Materials.<\/p>\n
2. PREPARATION OF PLANS; SELECTION OF DESIGNER\/ARCHITECT.<\/p>\n
(a) Tenant shall have the right to engage the services
\nof SMP\/SHG Incorporated as Tenant’s space planner (“Tenant’s Space Planner”)
\nand as Tenant’s architect (“Tenant’s Architect”) for purposes of the Work
\nLetter, including the design and initial space planning of each respective
\nfloor of the Premises which design shall address the tenant improvements,
\nexclusive of the Base Building Work, to be initially installed in each floor
\nof the Premises pursuant to this Work Letter (such tenant improvements are
\nreferred to herein as the “Tenant Work”). Tenant and Tenant’s Space Planner
\nshall take such action as is reasonably necessary and otherwise shall
\ncooperate with Landlord’s architect, RMW Architects (“Landlord’s Architect”),
\nin Tenant’s Space Planner’s preparation of a “hard line space\/pricing plan”
\nfor each floor of the Premises (collectively, the “Space Plan”), which shall
\ncontain all of the information on SCHEDULE 1, attached hereto and made a part
\nhereof. Tenant’s Space Planner <\/p>\n
shall complete and deliver for Landlord’s review (i) an initial draft of the
\nSpace Plan for the 12th Floor, 13th Floor, 19th Floor, 20th Floor and 21st
\nFloor, (ii) an initial draft of the Space Plan for the 22nd Floor, and (iii)
\nin the case of either an initial Sublessee Build Out or a Tenant Build Out
\n(as these terms are defined in Section 3 of the Lease) on the 8th Floor and
\n9th Floor, an initial draft of the Space Plan for the 8th Floor and 9th Floor
\nafter the expiration of the Availability Notice Period (as defined in Section
\n3 of the Lease). Landlord, within ten (10) business days after its receipt of
\nthe initial draft of a Space Plan for a particular floor in the Premises,
\nshall provide Tenant’s Space Planner with its written approval or disapproval
\nthereof (with a statement of the specific reasons therefor in the event of
\nany such disapproval). Tenant’s Space Planner, within five (5) business days
\nafter receipt of Landlord’s response, shall produce a final Space Plan for
\nsaid floor that shall reflect any comments\/corrections proposed by Landlord.<\/p>\n
(b) After Landlord’s approval of the final Space Plan for
\neach respective floor of the Premises, Tenant’s Architect shall have prepared
\nand shall have submitted the same to Landlord or its representative for its
\nreview and approval, an initial draft of engineered mechanical and electrical
\ndrawings and architectural working drawings, which show all doors, light
\nfixtures, electrical outlets, telephone outlets and other improvements to the
\nrespective floor of the Premises beyond the demolition, asbestos abatement,
\nremediation and\/or other maintenance (as set forth in SCHEDULE 2), to the extent
\nnot already completed, and shell and core improvements to be provided by
\nLandlord as described in SCHEDULE 2 attached hereto (such demolition, asbestos
\nabatement and\/or remediation and shell and core improvements are referred to
\nherein as the “Base Building Work”), as well as all wall finishes and floor
\ncoverings (collectively, the “Tenant’s Plans”). Landlord, within five (5)
\nbusiness days after its receipt of the initial draft of the Tenant’s Plans for a
\nparticular floor in the Premises, shall provide Tenant’s Architect with its
\nwritten approval or disapproval thereof (with a statement of the specific
\nreasons therefore in the event of such disapproval). Tenant’s Architect shall
\nproduce final Tenant’s Plans for said floor of the Premises that shall reflect
\nany comments\/corrections proposed by Landlord, and shall deliver four (4) copies
\nof the same to Landlord and Tenant for their final approval. All mechanical,
\nelectrical and plumbing related design work in connection with the Tenant Work
\nmust be completed by a consultant designated or approved in writing by Landlord
\nin Landlord’s sole discretion.<\/p>\n
(c) The parties acknowledge and agree that the Tenant
\nWork shown on the Tenant’s Plans must (i) be compatible with the Base Building
\nWork and the design, construction and equipment of the Building, (ii) comply
\nwith all applicable laws, rules, regulations and ordinances, including, without
\nlimitation, the provisions of the American with Disabilities Act, 42 U.S.C.
\nSection 12101 et. seq. and any governmental regulations with respect thereto
\n(the “ADA”), Title 24 of the California Administrative Code (“Title 24”) and
\nother similar federal, state and local laws and regulations, including, without
\nlimitation, the requirements under the ADA for the purposes of “public
\naccommodations” (as that term is used in the ADA) and (iii) be approved by
\nLandlord.<\/p>\n
(d) The term “Tenant Work” shall mean all improvements,
\nstandard or special, shown on the Tenant’s Plans. Tenant shall be responsible
\nfor the suitability for the Tenant’s needs and business of the design and
\nfunction of all the Tenant Work. Landlord’s review and approval of any plans or
\nspecifications shall not constitute, and Landlord shall not be deemed to have
\nmade, a representation or warranty as to the compliance of the Tenant Work <\/p>\n
2<\/p>\n
with any and all applicable state and local laws, statutes, codes, rules or
\nregulations including regulations or procedures promulgated by Landlord (the
\n“Laws”) or as to the suitability of the Premises, or the Tenant Work for
\nTenant’s needs. Accordingly, notwithstanding the fact that any plans are
\nreviewed and\/or approved by Landlord or its architect, engineers and
\nconsultants, and notwithstanding any advice or assistance which may be
\nrendered to Tenant by Landlord or Landlord’s architect, engineers and
\nconsultants, Landlord shall have no liability whatsoever in connection
\ntherewith and shall not be responsible for any omissions or errors contained
\nin such plans.<\/p>\n
(e) Notwithstanding anything to the contrary contained
\nherein, in the event that there is any portion of the Tenant Work which Landlord
\nwill require Tenant to remove at the end of the Lease Term, Landlord shall
\nnotify Tenant in writing of such at the time that Landlord reviews the initial
\ndraft of the Tenant’s Plans for a particular floor pursuant to Section 2(b)
\nabove. At the end of the Lease Term (as the same may be extended under the terms
\nof the Lease), Tenant shall remove said Tenant Work at Tenant’s sole cost and
\nexpense and repair and restore the Premises to their condition at the
\ncommencement of the Lease.<\/p>\n
3. BASE BUILDING WORK AS CONSTRUCTION BY LANDLORD.<\/p>\n
(a) Promptly after the full execution and delivery of
\nthis Lease by Landlord and Tenant, Landlord shall proceed to complete the Base
\nBuilding Work in each floor of the Premises; provided that Landlord shall
\nproceed to complete the Base Building Work on the 8th Floor and 9th Floor
\npromptly after the current tenant vacates said floors or, in the event Tenant
\nelects to sublease the 8th Floor and\/or 9th Floor pursuant to Section 3 of the
\nLease, after such subtenant vacates said floor(s). The “Base Building Work”
\nshall consist of only the items (the cost of which shall not be deducted from
\nthe Tenant Improvement Allowance as hereafter defined) set forth in SCHEDULE 2.
\nAs set forth on SCHEDULE 2 the Base Building Work shall be divided into Part I
\nand Part II. Part I of the Base Building Work shall be completed by Landlord
\nprior to the Premises Delivery Date for the applicable floor. Part II of the
\nBase Building Work shall be completed by Landlord concurrently with the
\ncompletion of the Tenant Work for the applicable floor, provided that Landlord
\nshall use reasonable efforts to not interfere with the completion of the Tenant
\nWork.<\/p>\n
(b) Landlord shall give Tenant or shall cause its space
\nplanner, architect or management company to give Tenant notice of the date on
\nwhich Part I of the Base Building Work is substantially completed with respect
\nto a particular floor. Tenant shall have three (3) business days following said
\nnotice, to inspect said Base Building Work and supply Landlord with a written
\nlist (the “Tenant Part I List”) setting forth material objections with respect
\nto said Base Building Work, which list shall be subject to Landlord’s reasonable
\napproval. In the event that no such Tenant Part I List is provided by Tenant
\nwithin said three (3) business day period, Tenant shall be deemed to have
\naccepted the Part I of Base Building Work for the particular floor. Landlord
\nshall use commercially reasonable efforts to complete all of the items on the
\nTenant Part I List, as reasonably approved by Landlord, as expeditiously as
\npossible. Following Landlord’s Architect’s certification that all items which
\nare required to be completed in connection with the Part I of the Base Building
\nWork have been completed for said floor, Part I of the Base Building Work for
\nthe particular floor shall be deemed “Substantially Complete”, <\/p>\n
3<\/p>\n
and Landlord shall have no further obligation with respect to completion of
\nPart I of the Base Building Work on said floor.<\/p>\n
(c) Upon Substantial Completion of Part I of the Base Building
\nWork for a particular floor in the Premises, Landlord shall deliver said
\nfloor, Part I of the Base Building Work and any additional completed Base
\nBuilding Work on said floor to Tenant (the “Premises Delivery Date”), and
\nTenant shall accept said floor, Part I of the Base Building Work and any
\nadditional completed Base Building Work on said floor from Landlord in their
\npresently existing, “as-is” condition. The Premises Delivery date for the
\n19th Floor shall be the date of the mutual execution of the Lease (the “19th
\nFloor Premises Delivery Date”); the Premises Delivery date for the 12th and
\n13th Floors shall be on or before September 1, 1999 (the “12th and 13th
\nFloors Premises Delivery Date”); the Premises Delivery date for the 20th and
\n21st Floors shall be on or before October 1, 1999 (the “20th and 21st Floors
\nPremises Delivery Date”), and; the Premises Delivery date for the 22nd Floor
\nshall be on or before June 1, 2000 (the “22nd Floor Premises Delivery Date”).
\nWith respect to the 8th and 9th Floor, in the case of a Sublessee Build Out
\non either the 8th Floor or 9th Floor, the Premises Delivery Date shall be on
\nor before the expiration of the Availability Notice Period (as defined in
\nSection 3 of the Lease). In the case of an initial Tenant Build Out on the
\n8th Floor or 9th Floor, the Premises Delivery Date shall be on or before six
\n(6) weeks after the expiration of the Availability Notice Period. Each
\nPremises Delivery Date referenced above is subject to delay by an Event of
\nForce Majeure (as defined below)<\/p>\n
(d) Prior to the completion by Tenant of all Tenant Work on a
\nparticular floor and the occurrence of the Term Commencement Date for each
\nfloor in the Premises, subject to an Event of Force Majeure, Landlord shall
\nsubstantially complete all Base Building Work for said floor. Landlord shall
\ngive Tenant or shall cause its space planner, architect or management company
\nto give Tenant notice of the date on which the Base Building Work is
\nsubstantially completed with respect to a particular floor. Tenant shall have
\nthree (3) business days following said notice, to inspect said Base Building
\nWork and supply Landlord with a written list (the “Tenant Base Building Work
\nList”) setting forth material objections with respect to said Base Building
\nWork, which list shall be subject to Landlord’s reasonable approval. In the
\nevent that no such Tenant Base Building Work List is provided by Tenant
\nwithin said three (3) business day period, Tenant shall be deemed to have
\naccepted the Base Building Work for the particular floor. Landlord shall use
\ncommercially reasonable efforts to complete all of the items on the Tenant
\nPart I List, as reasonably approved by Landlord, as expeditiously as
\npossible. Following Landlord’s Architect’s certification that all items which
\nare required to be completed in connection with the Base Building Work have
\nbeen completed for said floor, said Base Building Work shall be deemed
\n“Substantially Completed” and Landlord shall have no further obligation with
\nrespect to completion of the Base Building Work on said floor. Upon
\nSubstantial Completion of the Base Building Work on a particular floor,
\nTenant shall accept said floor and the Base Building Work on said floor from
\nLandlord in their presently existing, “as-is” condition.<\/p>\n
(e) Any failure of Landlord to attach a cold air equipment into
\nthe HVAC system servicing the Premises shall not be deemed a breach of
\nLandlord’s obligation, so long as such attachment is complete by April 1,
\n2000, and so long as said failure does not adversely affect the heat and free
\nair exchange in the Premises<\/p>\n
4<\/p>\n
4. CONSTRUCTION.<\/p>\n
(a) Promptly after the Tenant’s Plans for each
\nrespective floor in the Premises are approved by Landlord, Tenant shall (i)
\nenter into a construction contract, in the form of the contract attached
\nhereto as SCHEDULE 3 (the “OAIC Construction Contract”), with a contractor
\nreasonably satisfactory to Landlord and chosen from a list of approved
\nContractors supplied by Landlord (the “Contractor”), pursuant to which the
\nTenant Work shall be constructed, (ii) obtain or cause to be obtained all
\nnecessary building permits and other governmental approvals in connection
\nwith the Tenant Work, and (iii) promptly proceed with due diligence to cause
\nto be constructed and installed, as soon as reasonably practicable,
\nconsistent with industry custom and practice, the Tenant Work indicated on
\nthe Tenant’s Plans. Landlord will provide to Tenant’s Architect path of
\ntravel drawings to the Premises only, wet sealed by Landlord’s Architect
\nsuitable for permitting. Landlord shall not be responsible for any delays in
\nthe approval of the Tenant’s Plans or the issuance of necessary permits and
\napprovals. Tenant hereby agrees that neither Landlord nor Landlord’s
\nconsultants shall be responsible for obtaining any building permit or other
\napprovals or certificate of occupancy for the Premises and that obtaining the
\nsame shall be Tenant’s responsibility; provided, however, that Landlord shall
\ncooperate with Tenant in executing permit applications and performing other
\nministerial acts reasonably necessary to enable Tenant to obtain any such
\npermit or certificate of occupancy. No changes, modifications or alterations
\nin the Tenant’s Plans may be made without the prior written consent of
\nLandlord, which consent may not be unreasonably withheld, provided the
\nrequested change, modification or alteration does not adversely affect the
\nBuilding’s structure, systems, equipment, security system or appearance. If
\nthe requested change, modification or alteration adversely affects the
\nBuilding’s structure, systems, equipment, security system or appearance, then
\nLandlord may withhold its consent thereto in Landlord’s sole discretion.<\/p>\n
(b) Notwithstanding anything to the contrary contained herein,
\nprior to commencing the Tenant Work, Tenant shall obtain one hundred percent
\n(100%) performance and labor and material payment bonds, in form and
\nsubstance satisfactory to Landlord, issued by a company acceptable to
\nLandlord, naming Landlord as an obligee and issued in respect of the contract
\nwith the Contractor and each subcontractor.<\/p>\n
(c) Trash removal in connection with the Tenant Work will be
\ndone continually at Tenant’s cost and expense. No trash, or other debris, or
\nother waste may be deposited at any time outside the Premises other than in
\nareas which Landlord designates for dumpsters or temporary consolidation of
\ntrash prior to collection. If Tenant does not deposit its trash in accordance
\nwith this Section 4(c), Landlord may remove it at Tenant’s expense, which
\nexpense shall equal the cost of removal plus twenty-five percent (25%) of
\nsuch costs as a management fee.<\/p>\n
(d) Storage of Contractor’s construction material, tools and
\nequipment shall be confined within the Premises and in areas designated for
\nsuch purpose by the general contractor and approved by Landlord. In no event
\nshall any materials or debris be stored outside of the Premises, except as
\notherwise provided herein.<\/p>\n
5<\/p>\n
(e) Landlord shall have the right to post in a conspicuous
\nlocation on Tenant’s Premises, as well as record with the City and County of
\nSan Francisco, a Notice of Nonresponsibility.<\/p>\n
(f) Without limiting the generality of the foregoing, any work
\nto be performed outside of the Premises shall be coordinated with Landlord,
\nand shall be subjected to reasonable scheduling requirements of Landlord, and
\nTenant shall coordinate all after-hours, weekend work and use of the elevator
\nwith Landlord.<\/p>\n
(g) During construction of the Tenant Work, there shall be no
\ncharge for Tenant’s or Tenant’s space planner’s, architect’s, contractors’ or
\nengineers’ use of designated elevators, water, electricity, HVAC, or security
\nservices during Building Hours. In the event that Tenant shall require said
\nservices after Building Hours there shall be an after hours charge.
\nCurrently, the costs for HVAC, elevator and security services outside of
\nBuilding Hours, are approximately sixty dollars ($60) per hour, thirty
\ndollars ($30) per hour, and thirty-five dollars ($35) per hour, respectively,
\nwhich costs are subject to adjustment by Landlord from time to time in
\nLandlord’s discretion. In addition, in the event that Tenant shall require
\nparking stalls during the construction of the Tenant Work on a particular
\nfloor, Tenant shall be entitled to enter into the parking agreements
\ndescribed in Section 52 of the Lease prior to the Term Commencement Date for
\nsaid floor pursuant to a separate agreement with the third party contractor
\noperating the parking garage.<\/p>\n
5. SUBSTANTIAL COMPLETION AND PUNCH LIST ITEMS.<\/p>\n
(a) “Substantial Completion” as used in the Lease and
\nthis Work Letter with respect to the Tenant Work shall mean that (i) the
\napplicable improvements are substantially complete in accordance with the
\nrequirements of this Work Letter, (ii) the architect designing and
\nsupervising such improvements has certified that such improvements are
\nsubstantially complete in accordance with the applicable plans and
\nspecifications and the Landlord’s Architect, if different from the design
\narchitect, shall have concurred in such certification, (iii) to the extent
\napplicable the contractor performing such work has issued a notice of
\ncompletion under the applicable contract, (iv) to the extent applicable, a
\ntemporary certificate of occupancy or other governmental approval has been
\nissued in connection with such work. A floor in the Premises may be deemed
\nSubstantially Complete even though improvements in certain portions of the
\nBuilding outside the Premises have not been fully completed and even though
\nTenant’s personal property may have not been installed in the Premises.
\nNotwithstanding anything to the contrary contained herein, in no event shall
\nthe date of Substantial Completion of the Tenant Work for any floor in the
\nPremises be later than the Estimated Term Commencement Date for such floor,
\nsubject to extension due to Landlord Delay or Force Majeure.<\/p>\n
(b) Within ten (10) business days after Tenant’s Architect’s
\ncertification of Substantial Completion for a particular floor of the
\nPremises, Landlord shall supply to Tenant a written punch list (the “Tenant
\nWork Punch List”) setting forth the additional corrective and\/or completion
\nwork with respect to the Tenant Work for said floor which Landlord believes
\nis required to be performed pursuant to the Tenant’s Plans. In the event that
\nno such Tenant Work Punch List is provided by Landlord within said ten (10)
\nbusiness day period, Landlord shall be deemed to have accepted the Tenant
\nWork for the particular floor. Tenant shall use <\/p>\n
6<\/p>\n
commercially reasonable efforts to complete all of the items on the Tenant
\nWork Punch List as expeditiously as possible; and the Tenant Work Punch List
\nitems shall not be deemed complete until so certified in writing by
\nLandlord’s Architect.<\/p>\n
(c) Notice of Completion: Copy of Record Set of Plans. Within
\nten (10) days after completion of construction of the Tenant Work, Tenant
\nshall cause a Notice of Completion to be recorded in the office of the
\nRecorder of the County of San Francisco in accordance with Section 3093 of
\nthe Civil Code of the State of California or any successor statute, and shall
\nfurnish a copy thereof to Landlord upon such recordation. If Tenant fails to
\ndo so, Landlord may execute and file the same on behalf of Tenant as Tenant’s
\nagent for such purpose, at Tenant’s sole cost and expense. At the conclusion
\nof construction, (i) Tenant shall cause the Contractor, (A) to update the
\nTenant’s Plans to reflect the completed construction, (B) to certify to the
\nbest of their knowledge that the “record-set” of mylar as-built drawings
\nresulting from such update (which Tenant hereby agrees to have created) are
\ntrue and correct, which certification shall survive the expiration or
\ntermination of this Lease, and (C) to deliver to Landlord two (2) sets of
\ncopies of such record set of drawings within ninety (90) days following
\nissuance of a certificate of occupancy for the Premises, and (ii) Tenant
\nshall deliver to Landlord a copy of all warranties, guaranties, and operating
\nmanuals and information relating to the improvements, equipment and systems
\nin the Premises.<\/p>\n
6. COST OF DESIGN AND CONSTRUCTION.<\/p>\n
(a) Tenant Improvement Allowance. Landlord shall bear
\nthe cost of all Base Building Work, as set forth in this EXHIBIT C. In
\naddition, Landlord shall bear the cost of Tenant Work (“Tenant Work Cost”) to
\nthe extent such cost does not exceed an amount equal to the sum of Forty
\nDollars ($40.00) per square foot of rentable area for the Tenant Work
\nallocable to the 8th Floor (a total of $1,009,320), Forty Dollars ($40.00)
\nper square foot of rentable area for the Tenant Work allocable to the 9th
\nFloor (a total of $1,041,680), Forty Dollars ($40.00) per square foot of
\nrentable area for the Tenant Work allocable to the 12th Floor (a total of
\n$1,041,640), Forty Dollars ($40.00) per square foot of rentable area for the
\nTenant Work allocable to the 13th Floor (a total of $1,041,360), Ten Dollars
\n($10.00) per square foot of rentable area for the Tenant Work allocable to
\nthe 19th Floor (a total of $241,570), Forty One Dollars ($41.00) per square
\nfoot of rentable area for the Tenant Work allocable to the 20th Floor (a
\ntotal of $907,043), Forty One Dollars ($41.00) per square foot of rentable
\narea for the Tenant Work allocable to the 21st Floor (a total of $768,791),
\nand Forty One Dollars ($41.00) per square foot of rentable area for the
\nTenant Work allocable to the 22nd Floor (a total of $750,874) (collectively,
\nthe “Tenant Improvement Allowance”). In addition, Landlord shall provide
\nTenant with an additional Five Thousand Dollars ($5,000) of Tenant
\nImprovement Allowance beyond the total of the amounts set forth above.
\nNotwithstanding anything to the contrary contained herein, the Tenant
\nImprovement Allowance allocated to the 8th Floor and 9th Floor are subject to
\nthe provisions set forth in Section 3 of the Lease. In the event that the
\nTenant Improvement Allowance allocable to each floor of the Premises is not
\nentirely exhausted by the Tenant Work Cost for the particular floor in the
\nPremises, Tenant shall be entitled to apply the remaining Tenant Improvement
\nAllowance for such floor towards the Tenant Work Cost of a different floor in
\nthe Premises. Notwithstanding the foregoing and subject to the provisions of
\nSection 7 below, at least eighty percent (80%) of the Tenant Improvement
\nAllowance allocated to each floor of the Premises must be used towards the
\nTenant Work Cost on the particular floor to which the allowance is <\/p>\n
7<\/p>\n
allocated. In the event the Tenant Work Cost exceeds the Tenant Improvement
\nAllowance, Tenant shall bear the cost of such excess and shall pay such
\nexcess. Landlord shall retain any and all unused portions of the Tenant
\nImprovement Allowance. The Tenant Improvement Allowance shall be only for the
\nfollowing items and costs (collectively the “Tenant Improvement Allowance
\nItems”):<\/p>\n
(1) The costs of preliminary space planning, the hard line space
\nplan and the Tenant’s Plans for the Premises, and the cost of Landlord’s
\nreview thereof;<\/p>\n
(2) All costs of obtaining building permits and other necessary
\nauthorizations from all governmental authorities having jurisdiction;<\/p>\n
(3) The cost of any changes to the Construction Drawings or
\nTenant Work required by Code;<\/p>\n
(4) Sales and use taxes and fees required under ADA, Title 24 or
\nsuch other similar federal, state or local laws;<\/p>\n
(5) All other costs, if any, Landlord reasonably anticipates
\nLandlord will incur in connection with the construction of the Tenant Work;
\nand<\/p>\n
(6) All direct and indirect costs of procuring and installing
\nthe Tenant Work in the Premises, including any construction fee for overhead
\nand profit, a construction review fee charged by Landlord (i) in connection
\nwith the 12th, 13th, 19th, 20th, 21st and 22nd Floors in the amount of three
\npercent (3%) of the total cost of the design and construction of the Tenant
\nWork (to which fee Tenant hereby consents), provided that said fee shall not
\nexceed One Hundred Fifty Thousand Dollars ($150,000), and (ii) in connection
\nwith the 8th Floor and 9th Floor, in the amount of three percent (3%) of the
\ntotal cost of the design and constructions of the Tenant Work (to which fee
\nTenant hereby consents (collectively, the “Construction Review Fee”), and all
\nreasonable costs and fees, including without limitation, architect’s and
\nengineer’s fees, incurred by Landlord in its review and approval of the
\npreliminary space planning, the hard line space plan and the Tenant’s Plans
\nfor the Premises and any amendments or modifications thereto, which costs and
\nfees shall be in addition to the Construction Review Fee. Landlord shall have
\nthe right to pay itself the Construction Review Fee directly from the Tenant
\nImprovement Allowance without further authorization from Tenant.<\/p>\n
(b) To the extent required under Section 8(b) below, Tenant
\nshall bear the cost of any increase in the cost of the design or construction
\nof the Tenant Work incurred by reason of (i) any Tenant Delay or (ii) any
\nChange Order requested by Tenant or any governmental agency following
\npreparation and approval of the final Tenant’s Plans.<\/p>\n
7. DISBURSEMENT OF TENANT IMPROVEMENT ALLOWANCE.<\/p>\n
(a) During the construction of the Tenant Work, Landlord
\nshall make monthly disbursements of the Tenant Improvement Allowance for
\nTenant Improvement Allowance Items for the benefit of Tenant and shall
\nauthorize the release of monies for the benefit of Tenant as follows:<\/p>\n
8<\/p>\n
(b) MONTHLY DISBURSEMENTS. On or before the first day of each
\ncalendar month, as determined by Landlord, during the construction of the
\nTenant Work (or such other date as Landlord may designate), Tenant shall
\ndeliver to Landlord: (i) a request for payment of the “Contractor,” as that
\nterm is defined in Section 4(a) of this Work Letter, approved by Tenant, in a
\nform to be provided by Landlord, showing the schedule, by trade, of
\npercentage of completion of the Tenant Work in the Premises, detailing the
\nportion of the work completed and the portion not completed; (ii) invoices
\nfrom (i) the Contractor and (ii) all subcontractors, laborers, materialmen
\nand suppliers used by Tenant or Contractor (together with the Contractor,
\n“Tenant’s Agents”), for labor rendered and materials delivered to the
\nPremises; (iii) executed mechanic’s lien releases from all of Tenant’s Agents
\nwhich shall comply with the appropriate provisions, as reasonably determined
\nby Landlord, of California Civil Code Section 3262(d); (iv) a check payable
\nto Landlord in the amount of Tenant’s Share (as defined in Section 7(d)
\nbelow) of the particular amount of the payment requested by the Contractor,
\n(v) the information and documentation set forth on SCHEDULE 4 attached
\nhereto, and (vi) all other information reasonably requested by Landlord ((i),
\n(ii), (iii), (iv), (v) and (vi) are collectively referred to as a “Complete
\nPayment Request”). Tenant’s request for payment shall be deemed Tenant’s
\nacceptance and approval of the work furnished and\/or the materials supplied
\nas set forth in Tenant’s payment request. Thereafter, provided that Tenant
\nhas fulfilled each and every covenant in this Work Letter to date, and Tenant
\nis not in default under the terms of this Work Letter or Lease, Landlord
\nshall deliver a check to Tenant made jointly payable to Contractor and Tenant
\nin payment of the lesser of: (A) the amounts so requested by Tenant, less a
\nten percent (10%) retention (the aggregate amount of such retentions to be
\nknown as the “FINAL RETENTION”), and (B) the balance of any remaining
\navailable portion of the Landlord’s Allowance (not including the Final
\nRetention), provided that Landlord does not dispute any request for payment
\nbased on non-compliance of any work with the Plans, or due to any substandard
\nwork, or for any other reason. Landlord’s payment of such amounts shall not
\nbe deemed Landlord’s approval or acceptance of the work furnished or
\nmaterials supplied as set forth in Tenant’s payment request. Payment shall be
\nmade to Tenant within thirty (30) days after Landlord’s receipt of a Complete
\nPayment Request.<\/p>\n
(c) FINAL RETENTION. Subject to the provisions of this Work
\nLetter, a check for the Final Retention payable jointly to Tenant and
\nContractor shall be delivered by Landlord to Tenant provided the following
\nconditions have been satisfied: (i) the construction of the Tenant Work has
\nbeen completed, (ii)Tenant has delivered to Landlord properly executed
\nmechanics lien releases in compliance with both California Civil Code Section
\n3262(d)(2) and either Section 3262(d)(3) or Section 3262(d)(4) from Tenant’s
\nAgents or any other person or entity entitled to file a mechanic’s lien,
\n(iii) Landlord has determined that no substandard work exists which adversely
\naffects the mechanical, electrical, plumbing, heating, ventilating and air
\nconditioning, life-safety or other systems of the Building, the curtain wall
\nof the Building, the structure or exterior appearance of the Building, or any
\nother tenant’s use of such other tenant’s leased premises in the Building,
\n(iv) Tenant has delivered to Landlord a certificate of occupancy for the
\nPremises, (v) Tenant has not done and has not permitted anything to be done
\nthat would affect the coverage of any performance or labor and material
\npayment bonds required pursuant to Section 4(b) above, (vi) the information
\nand documentation set forth on SCHEDULE 4 attached hereto, (vii) Tenant
\ndelivers to Landlord a certificate, in a form reasonably acceptable to
\nLandlord, certifying that the construction of the Tenant Work in the Premises
\nhas been <\/p>\n
9<\/p>\n
substantially completed, and (viii) Tenant has complied with all of the other
\nterms of the Work Letter, including, without limitation, Section 7(b).<\/p>\n
(d) FINAL COSTS. Prior to the commencement of the construction
\nof the Tenant Work, and after Tenant has accepted all bids for the Tenant
\nWork, Tenant shall provide Landlord with a detailed breakdown, by trade, of
\nthe final costs to be incurred or which have been incurred, as set forth more
\nparticularly in Sections 6(a)(1) – (6), above, in connection with the design
\nand construction of the Tenant Work to be performed by or at the direction of
\nTenant or the Contractor, which costs form a basis for the amount of the
\nContract (the “FINAL COSTS”). Thereafter, in connection with each payment
\nrequested by Tenant pursuant to Section 7(a) above, Tenant shall pay a
\nfraction (the “Tenants Share”) of such payment, which fraction shall have the
\nFinal Costs less the Tenant Improvement Allowance and the Construction Review
\nFee as the numerator and the Final Costs as the denominator. By way of
\nexample, if Tenant Improvement Allowance were $1,000 and the Final Costs were
\n$1,200, Tenant’s share would be 1\/6. In the event that, after the Final Costs
\nhave been delivered by Tenant, to Landlord, the costs relating to the design
\nand construction of the Tenant Work shall change, any additional costs
\nnecessary to such design and construction in excess of the Final Costs, shall
\nbe paid by Tenant to Landlord immediately or at Landlord’s option, Tenant
\nshall make payments for such additional costs out of its own funds, but
\nTenant shall continue to provide Landlord with the documents described in
\nSection 7(a) of this Work Letter, above, for Landlord’s approval, prior to
\nTenant paying such costs.<\/p>\n
(e) OTHER TERMS. Landlord shall only be obligated to make
\ndisbursements from the Tenant Improvement Allowance to the extent costs are
\nincurred by Tenant for Tenant Improvement Allowance Items and disbursement of
\nthe Landlord’s Allowance shall be subject to the provisions of paragraphs
\n7(b) and (c) above.<\/p>\n
8. CHANGES AND DELAYS.<\/p>\n
(a) Tenant may request any change, addition or
\nalteration in the Tenant Work as shown on the final approved Tenant’s Plans
\n(a “Change Order”) by delivery of a written request therefor and complete
\nworking drawings showing the proposed change, addition or alteration to
\nLandlord. Landlord shall not unreasonably withhold its consent to any such
\nChange Order, provided the requested change does not adversely affect the
\nBuilding’s structure, systems, equipment, security system or appearance. If
\nthe requested change adversely affects the Building’s structure, systems,
\nequipment, security system or appearance, then Landlord may withhold its
\nconsent to such Change Order in Landlord’s sole discretion. Following receipt
\nof such request, Landlord shall promptly give Tenant a written description of
\nthe changes in such Change Order, if any, required for approval thereof by
\nLandlord. The standards and conditions of Landlord’s approval for Tenant’s
\nPlans shall also apply to Change Orders.<\/p>\n
(b) “Tenant Delay” shall include, but not be limited to, any
\ndelay in the Rent Commencement Date for each respective floor of the Premises
\nor in the completion of the Tenant Work or Base Building Work resulting from
\n(i) a request of Tenant to delay the same, (ii) Tenant’s failure to comply
\nwith the provisions of this Work Letter, including failure to provide
\ninformation or give approvals within the time periods specified herein and
\nfailure to pay any sums payable by Tenant within the time periods specified
\nherein, (iii) Tenant’s default under <\/p>\n
10<\/p>\n
Section 14(c) hereof, (iv) any other act or omission of Tenant, (iv) any
\nadditional time, as reasonably determined by Landlord, required for ordering,
\nreceiving, fabricating and\/or installing items of material or other
\ncomponents of the Tenant Work, including, without limitation, millwork, which
\nunreasonably delay Substantial Completion of the Tenant Work and which are
\nnot used for construction of Building standard tenant improvement work in the
\nremainder of the Building, (v) the submission by Tenant of a request for any
\nChange Order following preparation and approval of the Tenant’s Plans, (vi)
\nany additional time, as reasonably determined by Landlord, required for
\nimplementation of any Change Order with respect to the Tenant Work, or (vii)
\nany delay caused by Tenant’s Space Planner. Notwithstanding the foregoing
\nprovisions of this Section 8(b), a Tenant Delay shall not include any delay
\nresulting from a Landlord Delay or a Force Majeure Event. In the event that a
\nTenant Delay occurs, Tenant shall immediately pay to Landlord as additional
\nrent the total costs and any expenses occasioned by such delay, including,
\nwithout limitation, any costs and expenses attributable to increases in labor
\nor materials or incurred by Landlord to review and approve a Change Order.
\nLandlord must give Tenant written notice of claims of Tenant Delay within
\nfive (5) days of the occurrence of the event on which such Tenant Delay claim
\nis based. If such notice is not provided within the said five (5) day period,
\nLandlord shall has no right to claim a Tenant Delay for any period prior to
\nfive (5) days prior to the date on which such notice is given.<\/p>\n
(c) “Landlord Delay” shall be any delay in the completion of the
\nTenant Work resulting from (i) a request of Landlord to delay the same, (ii)
\nLandlord requirement of any Change Order to the Tenant Work following
\ncommencement of the Base Building Work and any additional time required for
\nimplementation of such Change Order, (iii) Landlord’s failure to comply with
\nthe provisions of this Work Letter, including failure to provide information
\nor give approvals within the time periods specified herein and failure to pay
\nany sums payable by Landlord within the time periods specified herein, (iv)
\nmaterial and unreasonable interference by Landlord, its agents or contractors
\nwith the completion of the Tenant Work, which interference objectively
\nprecludes construction of Tenant Work in the Premises by any person, or which
\ninterference relates to access by Tenant, its agents and contractors to the
\nBuilding and\/or the Premises or any Building facilities (including loading
\ndocks and freight elevators) or service (including temporary power and
\nparking areas) during normal construction hours, or the use thereof during
\nnormal construction hours, (v) Landlord’s failure to complete Part I of the
\nBase Building Work to Tenant by the designated Premises Delivery Date for a
\nparticular floor, or (vi) Landlord’s failure to complete Part II of the Base
\nBuilding Work to Tenant on or before Landlord’s receipt of Tenant’s
\nArchitect’s certification of Substantial Completion pursuant to Section 5(b)
\nabove. Notwithstanding the foregoing, a Landlord Delay shall not include any
\ndelay resulting from a Tenant Delay or a Force Majeure Event. Tenant must
\ngive Landlord written notice of claims of Landlord Delay within five (5) days
\nof each day on which such Landlord Delay is claimed to have occurred. If such
\nnotice is not provided within the said five (5) day period, Tenant shall lose
\nthe right to receive a delay of the Term Commencement Date on a particular
\nfloor for such day or days. Notwithstanding anything to the contrary
\ncontained herein, any delay in completion of either Part I or Part II of the
\nBase Building Work resulting from the failure of Tenant to deliver those
\nplans required pursuant to Section 2 above within a time period so as not to
\nimpede any design, demolition or construction work to be done by Landlord
\nshall not be deemed a Landlord Delay<\/p>\n
11<\/p>\n
(d) “Force Majeure Event” shall mean any delay in the Base
\nBuilding Work or the Tenant Work caused directly or indirectly, by reason of
\nacts of God, governmental restrictions, strikes, labor disturbances,
\nshortages of materials or supplies or any other cause or event beyond
\nLandlord’s or Tenant’s reasonable control. Unless any of the causes or events
\nlisted above permanently renders completion of the Base Building Work or the
\nTenant Work on a particular floor in the Premises impossible or
\nimpracticable, however, such cause or event shall only suspend the time for
\nperformance of, and shall not discharge or release the parties from, their
\nobligations hereunder.<\/p>\n
9. INDEMNITY.<\/p>\n
Tenant’s indemnity of Landlord as set forth in Section 14
\nof this Lease shall also apply with respect to any and all costs, losses,
\ndamages, injuries and liabilities related in any way to any act or omission
\nof Tenant or Tenant’s Agents, or anyone directly or indirectly employed by
\nany of them, or in connection with Tenant’s non-payment of any amount arising
\nout of the Tenant Work and\/or Tenant’s disapproval of all or any portion of
\nany request for payment. Such indemnity by Tenant, as set forth in Section 14
\nof this Lease, shall also apply with respect to any and all costs, losses,
\ndamages, injuries and liabilities related in any way to Landlord’s
\nperformance of any ministerial acts reasonably necessary (i) to permit Tenant
\nto complete the Tenant Work, and (ii) to enable Tenant to obtain any building
\npermit or certificate of occupancy for the Premises.<\/p>\n
10. REQUIREMENTS OF TENANT’S AGENTS.<\/p>\n
Each of Tenant’s Agents shall guarantee to Tenant and for
\nthe benefit of Landlord that the portion of the Tenant Work for which it is
\nresponsible shall be free from any defects in workmanship and materials for a
\nperiod of not less than one (1) year from the date of completion thereof.
\nEach of Tenant’s Agents shall be responsible for the replacement or repair,
\nwithout additional charge, of all work done or furnished in accordance with
\nits contract that shall become defective within one (1) year after the later
\nto occur of (i) completion of the work performed by such contractor or
\nsubcontractors and (ii) the Rent Commencement Date for the floor upon which
\nthe work was done. The correction of such work shall include, without
\nadditional charge, all additional expenses and damages incurred in connection
\nwith such removal or replacement of all or any part of the Tenant Work,
\nand\/or the Building and\/or common areas that may be damaged or disturbed
\nthereby. All such warranties or guarantees as to materials or workmanship of
\nor with respect to the Tenant Work shall be contained in the Contract or
\nsubcontract and shall be written such that such guarantees or warranties
\nshall inure to the benefit of both Landlord and Tenant, as their respective
\ninterests may appear, and can be directly enforced by either Tenant covenants
\nto give to Landlord any assignment or other assurances which may be necessary
\nto effect such right of direct enforcement.<\/p>\n
11. MEETINGS.<\/p>\n
Commencing upon mutual execution of the Lease, Tenant shall
\nhold weekly meetings at a reasonable time with the Contractor regarding the
\nprogress of the preparation of Plans and the construction of the Tenant Work,
\nwhich meetings shall be held at a location mutually designated by Landlord
\nand Tenant, and Landlord and\/or its agents shall receive prior <\/p>\n
12<\/p>\n
notice of, and shall have the right to attend, all such meetings, and, upon
\nLandlord’s request, certain of Tenant’s Agents shall attend such meetings. In
\naddition, minutes shall be taken at all such meetings, a copy of which
\nminutes shall be promptly delivered to Landlord. One such meeting each month
\nshall include the review of Contractor’s current request for payment.<\/p>\n
12. AMERICAN WITH DISABILITIES ACT AND SIMILAR ACTS.<\/p>\n
Except as set forth in Section 2 of this Work Letter with
\nrespect to the Base Building Work, Tenant shall reimburse Landlord upon
\ndemand for any and all costs incurred by Landlord to comply with the
\nprovisions of the ADA, Title 24 and other similar federal, state and local
\nlaws and regulations, including, without limitation, any alterations required
\nunder the ADA for the purposes of “public accommodations” (as that term is
\nused in the ADA), and alterations required under the ADA, Title 24 or such
\nother similar federal, state or local laws and regulations in any other
\nportion of the floor on which the Premises are located or any other portion
\nof the Building arising out of Tenant’s specific use of the Premises, or any
\naspect of Tenant’s Work, other than customary ADA upgrades outside of the
\nPremises required in connection with customary and ordinary general office
\nuses.<\/p>\n
13. EARLY ACCESS.<\/p>\n
Tenant may, with Landlord’s written consent which shall be
\ngranted or withheld in Landlord’s reasonable discretion, enter the premises
\nprior to the term commencement date of a particular floor in the premises
\nsolely for the purposes of installing tenant’s personal property and
\nequipment as long as such entry will not interfere with the orderly
\nconstruction and completion of the premises. Tenant shall notify Landlord of
\nits desired time(s) of entry and shall submit for Landlord’s approval the
\nscope of the work to be performed and the name(s) of the contractor(s) who
\nwill perform such work. Tenant shall have all applicable insurance and shall
\ncomply with all building rules and regulations. Tenant hereby indemnifies and
\nagrees to protect, defend and hold Landlord, Landlord’s property manager, any
\nmortgagee, ground lessor or beneficiary of a deed of trust related to the
\npremises or the building, and any officers, agents or employees of any
\nthereof, from and against any claims, liabilities or causes of action
\n(including claims for worker’s compensation) of any nature whatsoever,
\ntogether with reasonable attorneys’ fees for counsel of Landlord’s choice,
\narising out of or in connection with such entry onto the premises or the
\ninstallation of Tenant’s personal property or equipment (including but not
\nlimited to claims of breach of warranty, personal injury or property damage).
\nLandlord shall have the right, in Landlord’s sole and exclusive discretion,
\nto settle, compromise, or otherwise dispose of any and all such suits, claims
\nand actions.<\/p>\n
14. MISCELLANEOUS.<\/p>\n
(a) Tenant’s Representative. Tenant has designated Katherine
\nAndreasen as its sole representative with respect to the matters set forth in
\nthis Work Letter, who shall have full authority and responsibility to act on
\nbehalf of the Tenant as required in this Work Letter.<\/p>\n
(b) Landlord’s Representative. Landlord has designated Frank
\nMiskus as its sole representative with respect to the matters set forth in
\nthis Work Letter, who, until further <\/p>\n
13<\/p>\n
notice to Tenant, shall have full authority and responsibility to act on
\nbehalf of the Landlord as required in this Work Letter.<\/p>\n
(c) Tenant’s Lease Default. Notwithstanding any provision to
\nthe contrary contained in this Lease, if an event of default as described in
\nthe Lease or this Work Letter has occurred at any time on or before the
\nSubstantial Completion of the Premises, then (i) in addition to all other
\nrights and remedies granted to Landlord pursuant to the Lease, Landlord shall
\nhave the right to withhold payment of all or any portion of the Tenant
\nImprovement Allowance and\/or Landlord may cause any contractor to cease the
\nconstruction of the Premises (in which case, Tenant shall be responsible for
\nany delay in the Substantial Completion of the Base Building Work and\/or the
\nTenant Work caused by such work stoppage), and (ii) all other obligations of
\nLandlord under the terms of this Work Letter shall be suspended until such
\ntime as such default is cured pursuant to the terms of this Lease (in which
\ncase, Tenant shall be responsible for any delay in the Substantial Completion
\nof the Premises caused by such inaction by Landlord).<\/p>\n
(d) Merger. Except as expressly set forth in this Work Letter
\nor in the Lease, Landlord has no other agreement with Tenant and has no other
\nobligation to do any work or pay any amounts with respect to the Premises.
\nAny other work in the Premises which may be permitted by Landlord pursuant to
\nthe terms and conditions of the Lease shall be done at Tenant’s sole cost and
\nexpense and in accordance with the terms and conditions of the Lease.<\/p>\n
(e) Applicability of Work Letter. This Work Letter shall not be
\ndeemed applicable to any additional space added to the original Premises at
\nany time or from time to time, whether by any options under the Lease or
\notherwise, or to any portion of the original Premises or any additions
\nthereto in the event of damage or destruction of the Premises, condemnation
\nof the Premises, or renewal or extension of the initial term of the Lease,
\nwhether by any options under the Lease or otherwise, unless expressly so
\nprovided in the Lease or any amendment or supplement thereto.<\/p>\n
(f) Execution in Conjunction with Lease. This Work Letter is
\nbeing executed in conjunction with the Lease and is subject to each and every
\nterm and condition thereof, including, without limitation, the limitations of
\nLandlord’s liability set forth therein.<\/p>\n
14<\/p>\n
IN WITNESS WHEREOF, the parties have executed this Work Letter on the
\nrespective dates indicated below:<\/p>\n
TENANT: LANDLORD:<\/p>\n
Xoom.com, Inc., a OAIC Bush Street, LLC,
\nDelaware corporation a Delaware limited liability company<\/p>\n
By: \/s\/ Chris Kitze By: \/s\/ Gregory Breskin
\n —————————- ——————————
\nName: Chris Kitze Name: Gregory Breskin
\n —————————- ——————————
\nIts: Chairman Its: Vice President
\n —————————- ——————————
\nDate of Execution: 8\/9\/99 Date of Execution: Aug. 9, 1999
\n ————– —————
\nBy: \/s\/ John Harbottle By: \/s\/ Christine Reich
\n —————————- ——————————
\nName: John Harbottle Name: Christine Reich
\n —————————- ——————————
\nIts: CFO Its: President
\n —————————- ——————————<\/p>\n
15<\/p>\n
SCHEDULE 1<\/p>\n
INFORMATION IN THE SPACE PLAN<\/p>\n
1. Location and type of all partitions.<\/p>\n
2. Location and type of all doors. Indicate hardware and provide
\n keying schedule.<\/p>\n
3. Location and type of glass partitions, windows, and doors.
\n Indicate framing and reference full-height partitions.<\/p>\n
4. Critical dimensions necessary for construction, with
\n indication of required clearances.<\/p>\n
5. Location and types of all electrical items: outlets,
\n switches, telephone outlets and lighting.<\/p>\n
6. Location and type of equipment that will require special
\n electrical requirements. Provide manufacturers’
\n specifications for use and operation, including heat output.<\/p>\n
7. Location, weight per square foot, and description of any
\n heavy equipment or filing system.<\/p>\n
8. Requirements for special air-conditioning or ventilation.<\/p>\n
9. Location and type of plumbing.<\/p>\n
10. Location and type of kitchen equipment.<\/p>\n
11. Location, type and color of floor covering, wall covering,
\n paint and finishes.<\/p>\n
DETAILS SHOWING<\/p>\n
1. All millwork with verified dimensions of all equipment to be
\n built in.<\/p>\n
2. Corridor entrance.<\/p>\n
3. Bracing or support of special walls, glass partitions, etc.,
\n if desired.<\/p>\n
If not included with the plans, Tenant’s engineer will design
\nall support or bracing required at Tenant’s expense.<\/p>\n
ADDITIONAL INFORMATION<\/p>\n
1. Provide Landlord with Title 24 energy calculations with
\nsubmittal of the Final Plans.<\/p>\n
SCHEDULE 2<\/p>\n
BASE BUILDING WORK<\/p>\n
Landlord and Tenant acknowledge and agree that no Base Building Work will be
\nrequired by Landlord in connection with the 19th Floor<\/p>\n
PART I<\/p>\n
1. Demolition of the 8th, 9th, 12th, 13th, 20th, 21st and 22nd floor of
\n the Premises; provided that, in the event that Tenant initially
\n elects a Sublessee Build Out for the 8th and\/or 9th Floors pursuant
\n to Section 3 of this Lease, Landlord shall not be required to
\n perform any demolition work on the 8th and\/or 9th Floor; provided
\n further that, in the event that Tenant initially elects a Sublessee
\n Build Out for the 8th and\/or 9th Floors and later elects to proceed
\n with the Tenant Build Out pursuant to Section 3 of this Lease,
\n Landlord shall have six (6) weeks to complete the demolition on said
\n floor.<\/p>\n
2. As set forth in Section 1(d) of this Work Letter, Landlord shall
\n remove, encapsulate or perform other maintenance of asbestos which is
\n encountered during the construction of Part I of the Base Building
\n Work, excluding the 19th Floor, provided that the decision to remove,
\n encapsulate or perform other maintenance of such Hazardous Materials
\n shall be made at Landlord’s sole discretion. Tenant may request
\n additional information with respect to asbestos removal through the
\n Building management office.<\/p>\n
3. In connection with the 22nd Floor, Landlord shall perform additional
\n work under this Part I substantially in accordance with the proposed
\n plan set forth on Exhibit A-1 attached hereto (the “22nd Floor
\n Proposed Plan”) and the loggia window and door treatment conceptual
\n plan set forth on Exhibit A-2 attached hereto (the “22nd Floor
\n Loggia Window and Door Conceptual Plan”).<\/p>\n
4. All exterior windows, transoms and related hardware shall be operable,
\n excluding those windows which are permanently sealed.<\/p>\n
5. Landlord shall deliver to Tenant within thirty (30) days of the Lease
\n Execution Date, the base Building specifications for the HVAC system.<\/p>\n
6. In connection with the 21st Floor, Landlord shall also demolish the
\n existing railing in the former library area.<\/p>\n
PART II<\/p>\n
1. Landlord shall provide adequate electrical service, including main
\n breakers and transformers, as required, up to maximum of five (5)
\n watts per square foot.<\/p>\n
2. Landlord shall provide the main sprinkler loop and branch distribution
\n for the Premises on an unoccupied basis.<\/p>\n
3. The Landlord shall supply the existing HVAC loop on the 8th Floor, 9th
\n Floor, 12th Floor and 13th Floor and install the HVAC loop on the 20th
\n Floor, 21st Floor and 22nd Floor. Tenant shall be responsible for all
\n distribution.<\/p>\n
4. Landlord shall provide the main life safety loop on the 8th, 9th, 12th
\n Floor, 13th Floor, 20th Floor, 21st Floor, and 22nd Floor, including
\n devices as required for unoccupied space.<\/p>\n
5. A men’s restroom and women’s restroom on each floor of the Premises,
\n excluding the 19th Floor, in a location, with designs and finishes,
\n all designated by Landlord in Landlord’s sole discretion, shall
\n comply with Title 24, and ADA as required by the City of San
\n Francisco code.<\/p>\n
EXHIBIT A-1 TO SCHEDULE 2<\/p>\n
DIAGRAM OF 22ND FLOOR PROPOSED PLAN<\/p>\n
EXHIBIT A-2 TO SCHEDULE 2<\/p>\n
DIAGRAM OF 22ND FLOOR LOGGIA WINDOW AND DOOR CONCEPTUAL PLAN<\/p>\n
SCHEDULE 3<\/p>\n
OAIC CONSTRUCTION AGREEMENT<\/p>\n
[SEE ATTACHED]<\/p>\n
CONSTRUCTION AGREEMENT<\/p>\n
BETWEEN<\/p>\n
OWNER:<\/p>\n
AND<\/p>\n
CONTRACTOR:<\/p>\n
CONTRACT NO.:<\/p>\n
X ON CALL SINGLE PROJECT
\n— —<\/p>\n
JOB\/LOCATION: ON CALL
\n ——————————————————————<\/p>\n
1<\/p>\n
CONSTRUCTION AGREEMENT<\/p>\n
PROJECT NAME: ___________________ (if for single project)<\/p>\n
THIS CONSTRUCTION AGREEMENT (this “Agreement”), is made and entered into
\nas of the ____ day of _________, 1998, by and between __________, a _________
\n(the “Owner”) and _____________, a ________________ (the “Contractor”).<\/p>\n
In consideration of the mutual covenants hereinafter set forth, and
\nother good and valuable consideration, the receipt and sufficiency of which
\nis hereby acknowledged, the parties hereto agree as follows:<\/p>\n
ARTICLE 1
\n CERTAIN DEFINITIONS<\/p>\n
Capitalized terms which are used in this Agreement and not otherwise
\ndefined in this Agreement shall have the meanings given to such terms in the
\nGeneral Conditions. Unless otherwise specified, references herein to numbered
\narticles and paragraphs are to those in this Agreement. This Agreement shall
\nbe referred to throughout the Contract Documents as the “Agreement”. The
\nfollowing terms shall have the meanings set forth below:<\/p>\n
2<\/p>\n
1.1 “COMMENCEMENT DATE” shall mean the earlier of ____(ON CALL)___ or
\nthe date fixed in a Notice to Proceed to be delivered by Owner to Contractor
\nafter the date of this Agreement if this Agreement is for an individual
\nproject or service. If this Agreement if for continuing (on-call) Work (as
\ndefined hereafter) on multiple projects or continuing (on-call) services, the
\nCommencement Date shall be the date fixed in the job specific Work
\nAuthorization forms delivered by Owner to Contractor after the date of this
\nAgreement. The Commencement Date shall be the date from which any deadlines
\nfor completion of the Work or portions thereof shall be measured, provided,
\nhowever no notice to proceed and no Commencement Date may become effective
\nuntil after all applicable permits have been issued unless the Contractor,
\nany subcontractor, and\/or any of their respective agents, representatives,
\nsuppliers or any other person or entity directly or indirectly employed,
\nutilized and\/or controlled by any of them are responsible for obtaining the
\napplicable permits.<\/p>\n
1.2 “CONTRACT DOCUMENTS” shall mean this Agreement, the General
\nConditions, any special, supplementary or other conditions set forth on
\nEXHIBIT B (collectively, “Special Conditions”), the Drawings, the
\nSpecifications, all Addenda (except portions thereof relating purely to the
\nbidding form or bidding procedure), all Modifications and all other documents
\nenumerated on EXHIBIT A attached hereto. The Contract Documents collectively
\nform the Contract and all are fully a part thereof as if attached to this
\nAgreement or repeated herein.<\/p>\n
1.3 “CONTRACT SUM” shall mean: As full compensation for Contractor’s
\nperformance of its Work (as defined hereafter) under this Agreement, Owner
\nwill pay Contractor in accordance with the terms and conditions of this
\nAgreement, only the amount authorized in writing in accordance with the basis
\nof compensation and fees noted below; or as agreed to by Owner and
\nContractor. Such compensation shall include all taxes incurred by Contractor
\nin its performance of its Work:<\/p>\n
( ) Lump Sum. The sum of ___________________ Dollars ($ ),<\/p>\n
3<\/p>\n
subject to additions and deductions as provided in the Contract Documents.<\/p>\n
( ) Hourly Rate as set forth in the attached ADDENDUM 1, subject to
\nadditions and deductions as provided in the Contract Documents.<\/p>\n
( ) In accordance with the fees described in ADDENDUM 1, subject to
\nadditions and deductions as provided in the Contract Documents.<\/p>\n
(X) As detailed on job specific Work Authorization, subject to
\nadditions and deductions as provided in the Contract Documents.<\/p>\n
1.4 “CONTRACT TIME” shall have the meaning ascribed thereto in
\nSection 5.1 below.<\/p>\n
1.5 “GENERAL CONDITIONS” shall mean the General Conditions of the
\nContract for Construction attached hereto as EXHIBIT C.<\/p>\n
1.6 “PROJECT” shall mean for Work at the following location(s):
\n_______(ON CALL)_______________________________________________________________
\nunless this Agreement is for continuing (on-call) Work (as defined hereafter)
\non multiple project or continuing (on-call) services in which case the
\nProject shall mean the Work at the locations set forth in the job specific
\nWork Authorization form.<\/p>\n
1.7 “NATURE OF PROJECT” this Agreement is for:<\/p>\n
( ) An individual project or an individual service contract:<\/p>\n
Project or contract name: ________________<\/p>\n
4<\/p>\n
Owner’s contract number: _______________<\/p>\n
Owner’s assigned job number: ____________<\/p>\n
(X) Continuing (on-call) Work (as defined hereafter) on multiple
\nprojects, or continuing (on-call) services. Each project or request for Work
\nmust be individually described in the job specific Work Authorization on the
\nOwner approved form, which must include a description of (i) the location(s),
\n(ii) scope(s) of Work, (iii) timetables (i.e. Commencement Date, Substantial
\nCompletion Dates and Milestone Dates), (iv) basis of compensation, and
\n(v) Authorization(s) to Proceed on the Owner approved form. The terms and
\nconditions of the agreement shall apply separately to each project or
\nservice. One or more project(s) or service(s) may be in process at any time,
\nor during certain periods of time no project or service may be in process.<\/p>\n
1.8 “SUBSTANTIAL COMPLETION DATE” shall be ___(ON CALL)____ if this
\nAgreement is for an individual project or service. If this Agreement if for
\ncontinuing (on-call) Work on multiple project or continuing (on-call)
\nservices, the Substantial Completion Date shall be as set forth in the job
\nspecific Work Authorization form. In either event, the Substantial Completion
\nDate is subject to adjustment in accordance with the Contract Documents.<\/p>\n
1.9 “WORK” shall mean and include the totality of the obligations
\nimposed upon the Contractor by this Agreement and by all other provisions of
\nthe Contract Documents, including, without limitation, the structures to be
\nbuilt, the materials, equipment and supplies to be provided and the labor to
\nbe performed pursuant to the Contract Documents as set forth on Exhibit A
\nattached hereto which are incorporated herein by reference.<\/p>\n
5<\/p>\n
1.10 “MILESTONE DATES” shall be as set forth on Exhibit D attached
\nhereto unless this Agreement is for continuing (on-call) Work on multiple
\nprojects or continuing (on-call) services in which case the Milestone Dates
\nshall be as set forth in the job specific Work Authorization form.<\/p>\n
1.11 “SCHEDULE OF VALUES” shall allocate the entire Contract Sum among
\nthe various portions of the Work, generally following the Uniform
\nConstruction Index (CSI) cost analysis format as set forth on Exhibit J
\nattached hereto.<\/p>\n
ARTICLE 2
\n PERFORMANCE OF THE WORK<\/p>\n
2.1 The Contractor shall fully perform and complete the Work in
\ncompliance with the terms and provisions of the Contract. In connection
\ntherewith, the Contractor shall perform or cause to be performed all actions
\nand shall provide and pay for all materials, tools, equipment, supplies,
\nlabor and professional and non-professional services, and shall perform all
\nother acts and supply all other things necessary to fully and properly
\nperform and complete the Work pursuant to the Contract Documents.<\/p>\n
2.2 The Contractor shall be solely responsible for the construction
\nmeans, methods, techniques and procedures utilized to perform and complete
\nthe Work.<\/p>\n
ARTICLE 3
\n OWNER’S REPRESENTATIVE<\/p>\n
3.1 The Owner’s authorized representative (herein referred to as the
\n“Owner’s Representative”) shall be Ken Kuropatkin; provided, however, that
\nthe Owner may, without liability to the Contractor, unilaterally amend this
\nArticle from time to time by designating a <\/p>\n
6<\/p>\n
different person or organization to act as its representative and so advising
\nthe Contractor in writing, at which time the person or organization so
\ndesignated shall be the Owner’s Representative for purposes of the Contract.<\/p>\n
ARTICLE 4
\n THE ARCHITECT\/ENGINEER<\/p>\n
4.1 The Architect\/Engineer for the Project (herein referred to as the
\n“A\/E” or “Architect”) is ___(ON CALL)_____, whose mailing address is
\n_______________, _________________ unless otherwise set forth in the job
\nspecific Work Authorization, if applicable; provided, however, that the Owner
\nmay, without liability to the Contractor, unilaterally amend this Article
\nfrom time to time by designating a different person or organization to act as
\nthe A\/E and so advising the Contractor in writing, at which time the person
\nor organization so designated shall be the A\/E for the purposes of the
\nContract.<\/p>\n
ARTICLE 5
\n TIME OF COMMENCEMENT AND COMPLETION<\/p>\n
5.1 The Contractor will commence the Work promptly on the Commencement
\nDate and shall substantially complete all Work on or before the Substantial
\nCompletion Date (such period of time is herein referred to as the “Contract
\nTime”) and in accordance with such interim milestone dates (herein referred
\nto as the “Milestones Dates”) as may be specified in the Contract Documents.
\nThe Contract Time and such Milestones Dates are of the essence of the
\nContract.<\/p>\n
5.2 If any Work is performed by the Contractor prior to the execution
\nof this Agreement based on receipt of a written Notice to Proceed, all such
\nWork performed shall be in accordance with and governed by the Contract
\nDocuments.<\/p>\n
7<\/p>\n
ARTICLE 6
\n CONTRACT SUM<\/p>\n
6.1 Provided that the Contractor strictly and completely performs all
\nof its obligations under the Contract Documents in a timely manner, and
\nsubject only to additions and deductions by Change Order or as otherwise
\nprovided in the General Conditions, the Owner shall pay to the Contractor, at
\nthe times and in the installments hereinafter specified, the Contract Sum, to
\ncover the Contractor’s profit, general overhead and all costs and expenses of
\nany nature whatsoever (including, without limitation, taxes, labor and
\nmaterials), and any increases in said costs and expenses, incurred by the
\nContractor in connection with the performance of the Work, all of which costs
\nand expenses shall be borne solely by the Contractor.<\/p>\n
ARTICLE 7
\n APPLICATIONS FOR PAYMENT<\/p>\n
7.1 The Contractor shall, on or before the fifth (5th) day of each
\ncalendar month (the “Payment Application Date”), deliver to the Owner an
\nApplication for Payment in accordance with the provisions of Article 9 of the
\nGeneral Conditions. Each Application for Payment submitted by the Contractor
\nshall cover one calendar month, and shall cover a period commencing on the
\nfirst day of the previous month and ending on the last day of the previous
\nmonth. The Schedule of Values shall be used as a basis for the Contractor’s
\nApplications for Payment and the review thereof by Owner. Each Application
\nfor Payment shall include the Schedule of Values and be further broken down
\nby facility, labor and material, all as required by the Owner.<\/p>\n
ARTICLE 8<\/p>\n
8<\/p>\n
PROGRESS PAYMENTS AND FINAL PAYMENT
\n OF THE CONTRACT SUM<\/p>\n
8.1 Based on the Contractor’s Application for Payment, the Approved
\nSchedule of Values and the approval of the Application for Payment issued by
\nthe Owner pursuant to Article 9 of the General Conditions, the Owner shall
\nmake monthly payments to the Contractor on account of the Contract Sum. Such
\nmonthly payment shall be made on or before the thirtieth (30th) day after
\nreceipt by the Owner of the Contractor’s Application for Payment, and of all
\ndocumentation, in proper form, to substantiate the amount owed, whichever is
\nlater; provided, however, that the Owner shall have no obligation to make
\npayment as aforesaid if Owner withholds approval thereof as permitted under
\nSubparagraph 9.3.1 of the General Conditions or if the Contractor has not
\nsubmitted to the Owner with its Application for Payment all required
\ndocumentation. Each such monthly payment shall be in an amount equal to
\nninety percent (90%) of the net amount allowed the Contractor for labor,
\nmaterials and equipment incorporated or used in the Work through the Payment
\nApplication Date (or suitably stored at the Job Site and verified by material
\ninvoice), as indicated in the Owner’s approval of the Application for
\nPayment, after deducting any sums withheld by the Owner pursuant to the
\nContract Documents and the aggregate of all previous payments to the
\nContractor on account of the Contract Sum. Upon Substantial Completion of the
\nWork, as set forth in Subparagraph 1.12 of the General Conditions, the Owner
\nshall pay to the Contractor an amount necessary to increase the aggregate
\npayments theretofore made to the Contractor on account of the Contract Sum to
\nninety percent (90%) of the Contract Sum, less such retainage as the Owner
\nshall determine is necessary for all incomplete Work, unsettled claims or
\nother matters for which the Owner is permitted to withhold under the General
\nConditions.<\/p>\n
8.1.1 All monthly payments approved by Owner in accordance with this
\nAgreement not paid on or before the thirtieth (30th) day after receipt by the
\nOwner of the Contractor’s Application for Payment shall accrue interest at
\nthe rate of Twelve Percent (12%) per year.<\/p>\n
9<\/p>\n
8.2 Final payment, constituting the entire unpaid balance of the
\nContract Sum, shall be paid by the Owner to the Contractor within forty-five
\n(45) days after approval by the Owner of the final Application for Payment in
\naccordance with the General Conditions; provided, however, that final payment
\nshall in no event be due unless and until the Contractor shall have complied
\nwith all provisions of the Contract Documents, including those contained in
\nSubparagraph 9.4.2 of the General Conditions. In addition, defects in the
\nWork discovered prior to final payment shall be treated as non-conforming
\nWork and shall be corrected by the Contractor prior to final payment and not
\ntreated as warranty items.<\/p>\n
ARTICLE 9
\n CONTRACTOR’S REPRESENTATIONS,
\n WARRANTIES AND COVENANTS<\/p>\n
9.1 The Contractor hereby represents and warrants to the Owner that:<\/p>\n
(a) Contractor is duly licensed to observe and perform the terms,
\n covenants, conditions and other provisions on its part to be observed or
\n performed hereunder;<\/p>\n
(b) Contractor is experienced and skilled in the construction and
\n work of the type described in or required by the Contract Documents;<\/p>\n
(c) All equipment and materials used in connection with the Work
\n shall be new (except if otherwise required by the Specifications), and the
\n equipment, the materials and the Work shall be in accordance with industry
\n standards, free from faults and defects and shall strictly conform to the
\n Contract Documents; and<\/p>\n
10<\/p>\n
9.2 The Contractor accepts the contractual relationship established
\nbetween Contractor and the Owner. Contractor shall furnish its best skill and
\njudgment and cooperate with the Owner in furthering the interests of the
\nOwner. Contractor shall furnish efficient business administration and
\nsuperintendence to perform the Work in a workmanlike manner consistent with
\nindustry standards and consistent with the Specifications.<\/p>\n
9.3 Contractor hereby represents, warrants and covenants that (i)
\nContractor has provided nothing of material value to any employee, agent or
\nindependent contractor of Owner or any of its affiliates in connection with
\nthis Agreement or any other agreement between Contractor and Owner and (ii)
\nContractor shall not at any time provide anything of material value to any
\nemployee, agent or independent contractor of Owner or any of its affiliates
\nin connection with this Agreement or any other agreement between Contractor
\nand Owner. Contractor hereby acknowledges and intends that Owner shall rely
\nupon Contractor’s representations, warranties and covenants contained in this
\nSection, and Contractor shall execute a certificate confirming the foregoing
\nat Owner’s request.<\/p>\n
ARTICLE 10
\n TERMINATION<\/p>\n
10.1 Termination of the Contract by the Owner, with or without
\ncause, and by the Contractor are provided for in Article 15 of the General
\nConditions. If the Owner terminates the Contract pursuant to Paragraph 15.2
\nof the General Conditions, and the unpaid balance of the Contract Sum exceeds
\nthe costs and expenses incurred by or on behalf of the Owner in finishing the
\nWork, including compensation for any additional architectural, engineering,
\nmanagement and administrative services, such excess shall, upon the
\ncompletion of the Work, be paid to the Contractor. If such costs exceed such
\nunpaid balance, the Contractor shall pay the difference to the Owner upon
\ndemand.<\/p>\n
11<\/p>\n
ARTICLE 11
\n MISCELLANEOUS<\/p>\n
11.1 No notice or other communication will be deemed given unless
\nsent in any of the manners, and to the persons, specified in this Section.
\nAll notices and other communications hereunder will be in writing and will be
\ndeemed given (a) upon receipt if delivered personally (unless subject to
\nclause (b)) or if mailed by registered or certified mail, (b) at noon on the
\ndate after dispatch if sent by overnight courier or (c) upon the completion
\nof transmission (which is confirmed by telephone or by a statement generated
\nby the transmitting machine) if transmitted by telecopy or other means of
\nfacsimile which provides immediate or near immediate transmission to
\ncompatible equipment in the possession of the recipient, in any case to the
\nparties at the following addresses or telecopy numbers (or at such other
\naddress or telecopy number for a party as will be specified by like notice):<\/p>\n
if to Contractor:
\n Attention:<\/p>\n
Telecopy Number: ( )
\n Confirmation Number: ( )
\nor if to the Owner:
\n c\/o Ocwen Federal Bank FSB
\n The Forum, Suite 400
\n 1675 Palm Beach Lakes Boulevard
\n West Palm Beach, FL 33401
\n Attention: William H. Stolberg
\n Telecopy Number: 561 682-8275
\n Confirmation Number: 561 682-8182<\/p>\n
12<\/p>\n
cc: Secretary
\n Telecopy Number:
\n ——————-
\n Confirmation Number:
\n —————<\/p>\n
cc Owner’s Representative: Compass Management and Leasing, Inc.
\n 1 Front Street, Suite 1200
\n San Francisco, CA 94111
\n Attention:
\n Telecopy Number:
\n Confirmation Number:<\/p>\n
11.2 Contractor will not use Owner’s or any of Owner’s affiliates’
\nnames, marks, logos or other designations for any reason (including, without
\nlimitation, advertising, publicity and promotional materials) without Owner’s
\nexpress prior written consent in each instance, and all such names, marks,
\nlogos and other designations of Owner will at all times be and remain the
\nsole and exclusive property of Owner. The foregoing notwithstanding,
\nContractor will have the right to include representations of the design of
\nthe Project, including photographs of the exterior and interior, among
\nContractor’s promotional materials. The Owner agrees to provide professional
\ncredit for the Contractor on the construction sign and in the promotional
\nmaterials for the Project, if any, in a form chosen by Owner.<\/p>\n
11.3 No payment made under this Agreement shall be conclusive
\nevidence of the performance of this Agreement by Contractor, either wholly or
\nin part, and no payment will be construed to be an acceptance of, or to
\nrelieve Contractor of liability for, Contractor’s failure to perform its
\nduties and obligations under this Agreement in accordance with the terms of
\nthis Agreement.<\/p>\n
13<\/p>\n
11.4 This Agreement and the respective rights and obligations of the
\nparties hereto will be governed and construed in all respects in accordance
\nwith the laws of the state where the Job Site is located, without regard to
\nits conflicts of laws provisions.<\/p>\n
11.5 Contractor will at all times be an independent contractor and
\nnothing in this Agreement will at any time be construed so as to create the
\nrelationship of employer and employee, principal and agent, partnership or
\njoint venture as between Contractor and Owner. Contractor acknowledges that
\nit will have no authority to bind Owner to any contractual or other
\nobligation.<\/p>\n
11.6 All rights available to either party under this Agreement, or
\nallowed it by law or equity, are and will be cumulative and may be exercised
\nseparately or concurrently and from time to time without waiver of any other
\nremedies. No party hereto will be deemed to waive any right, power or
\nprivilege under this Agreement unless such waiver is expressed in a written
\ninstrument signed by the waiving party. The failure of any party hereto to
\nenforce any provision of this Agreement will in no way be construed as a
\nwaiver of such provision or a right of such party to thereafter enforce such
\nprovision or any other provision of this Agreement.<\/p>\n
11.7 The Contract constitutes the entire agreement of the parties
\nhereto with respect to the subject matter hereof and supersedes all prior
\nagreements, understandings, representations, proposals, discussions and
\ncommunications, whether oral or in writing, between the parties with respect
\nto the subject matter of this Agreement. EXHIBIT A, EXHIBIT B, EXHIBIT C,
\nEXHIBIT D, EXHIBIT E, EXHIBIT F, EXHIBIT G, EXHIBIT H, EXHIBIT I, EXHIBIT J,
\nADDENDUM 1, AND ADDENDUM 2 to this Agreement are each hereby incorporated
\ninto this Agreement in their entirety by this reference.<\/p>\n
14<\/p>\n
11.8 The Contract may not be amended or modified in any manner
\nexcept by a written agreement executed by each of the parties hereto.<\/p>\n
11.9 If any provision of the Contract is held to be invalid or
\nunenforceable for any reason, such provision will be conformed to prevailing
\nlaw rather than voided, if possible, in order to achieve the intent of the
\nparties and, in any event, the remaining provisions of this Agreement will
\nremain in full force and effect and will be binding upon the parties hereto.<\/p>\n
11.10 This Agreement may be executed in any number of counterparts,
\neach of which when so executed and delivered will be deemed an original, but
\nall of which will together constitute one and the same agreement.<\/p>\n
11.11 The enumeration and headings contained in this Agreement are
\nfor convenience of reference only and will not control or affect the meaning
\nor interpretation of any of the provisions of this Agreement.<\/p>\n
11.12 In its performance of its duties and obligations under the
\nContract, Contractor and its employees and subcontractors will at all times
\nfully comply with all federal, state and local laws, statutes, ordinances,
\nrules, regulations and orders.<\/p>\n
11.13 THE PARTIES HERETO HEREBY KNOWINGLY AND VOLUNTARILY WAIVE ANY
\nRIGHT WHICH EITHER OR BOTH OF THEM WILL HAVE TO RECEIVE A TRIAL BY JURY WITH
\nRESPECT TO ANY CLAIMS, CONTROVERSIES OR DISPUTES WHICH WILL ARISE OUT OF THIS
\nAGREEMENT OR THE SUBJECT MATTER HEREOF. ANY SUCH CLAIMS OR CONTROVERSIES OR
\nDISPUTES SHALL BE HEARD BY A JUDGE.<\/p>\n
15<\/p>\n
11.14 Unless the context of this Agreement otherwise clearly
\nrequires, (i) references in this Agreement to the plural include the
\nsingular, the singular the plural, the masculine the feminine, the feminine
\nthe masculine and the part the whole and (ii) the word “or” will not be
\nconstrued as exclusive and the word “including” will not be construed as
\nlimiting.<\/p>\n
11.15 All employees of Contractor, whether performing their
\nfunctions at Contractor’s place of business, the Job Site or elsewhere,
\nshall, at all times, be and remain employees of Contractor and shall not be
\nemployees of Owner. Contractor shall pay all wages, salaries and other
\namounts due to its employees who perform on Contractor’s behalf under this
\nAgreement or any other agreement between Owner and Contractor, and Contractor
\nshall be solely responsible for all reports, payments and other obligations
\nrespecting such employees, including, without limitation, those obligations
\nrelating to social security, income tax withholding, unemployment
\ncompensation and workers’ compensation.<\/p>\n
16<\/p>\n
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
\nexecuted the day and year first above written.<\/p>\n
OWNER:<\/p>\n
By: Compass Management and Leasing, Inc.
\n Its authorized representative
\n By:
\n ————————————
\n Name:
\n ————————————
\n Title:
\n ————————————<\/p>\n
CONTRACTOR:<\/p>\n
By:
\n ————————————
\n Name:
\n ————————————
\n Title:
\n ————————————<\/p>\n
17<\/p>\n
LIST OF EXHIBITS<\/p>\n
\n\n
\n EXHIBIT A – List of Contract Documents
\n EXHIBIT B – Special Conditions
\n EXHIBIT C – General Conditions of the Contract for
\n Construction
\n EXHIBIT D – Milestone Dates
\n EXHIBIT E – Contractor’s Guarantee to Owner
\n EXHIBIT F – Payment Bond
\n EXHIBIT G – Performance Bond
\n EXHIBIT H – Change Order Form
\n EXHIBIT I – Project Real Estate – Legal Description
\n EXHIBIT J – Schedule of Values
\n ADDENDUM 1 – Hourly Rate or Fee Schedule, if applicable
\n ADDENDUM 2 – Work Authorization Form
\n<\/s><\/c><\/caption>\n<\/table>\n 18<\/p>\n
EXHIBIT A<\/p>\n
LIST OF CONTRACT DOCUMENTS<\/p>\n
19<\/p>\n
EXHIBIT B<\/p>\n
SPECIAL CONDITIONS<\/p>\n
C. Materials purchased by Owner<\/p>\n
Certain Materials specified in the Contract Documents and to be incorporated
\ninto the Work have been purchased by Owner. The cost for loading, transporting
\nand unloading these Materials at the Project site are included in the Contract
\nSum. The list of materials purchased by the Owner is bound within this Agreement
\nand made apart of the Contract Documents between Owner and Contractor.<\/p>\n
20<\/p>\n
EXHIBIT C<\/p>\n
GENERAL CONDITIONS OF THE
\n CONTRACT FOR CONSTRUCTION<\/p>\n
The General Conditions of the Contract for Construction is bound within this
\nAgreement and made apart of the Contract Documents between Owner and Contractor.<\/p>\n
21<\/p>\n
================================================================================<\/p>\n
GENERAL CONDITIONS<\/p>\n
OF THE<\/p>\n
CONTRACT FOR CONSTRUCTION<\/p>\n
================================================================================<\/p>\n
TABLE OF CONTENTS<\/p>\n
\n
\n ARTICLE 1
\n DEFINITIONS
\n1.1 The Contract………………………………………………………………………………… 1
\n1.2 The Owner…………………………………………………………………………………… 1
\n1.3 The Owner’s Representative……………………………………………………………………. 1
\n1.4 The Contractor………………………………………………………………………………. 1
\n1.5 Subcontractor; Sub-subcontractor………………………………………………………………. 2
\n1.6 The Job Site………………………………………………………………………………… 2
\n1.7 Work; Contract Time; Contract Sum……………………………………………………………… 2
\n1.8 Provide…………………………………………………………………………………….. 2
\n1.9 Plans………………………………………………………………………………………. 2
\n1.10 Specifications………………………………………………………………………………. 2
\n1.11 Substantial Completion……………………………………………………………………….. 2<\/p>\n ARTICLE 2
\n THE CONTRACT DOCUMENTS
\n2.1 Execution, Intent and Interpretations………………………………………………………….. 2
\n2.2 Copies Furnished, Ownership…………………………………………………………………… 3
\n2.3 No Oral Waiver………………………………………………………………………………. 3<\/p>\n
ARTICLE 3
\n OWNER
\n3.1 Easements…………………………………………………………………………………… 4
\n3.2 Access……………………………………………………………………………………… 4<\/p>\n
ARTICLE 4
\n THE OWNER’S REPRESENTATIONS
\n4.1 Contractual Relationships…………………………………………………………………….. 4
\n4.2 Role……………………………………………………………………………………….. 4<\/p>\n
ARTICLE 5
\n CONTRACTOR
\n5.1 Supervision and Construction Procedures………………………………………………………… 4
\n5.2 Materials and Equipment………………………………………………………………………. 5
\n5.3 Warranty……………………………………………………………………………………. 5
\n5.4 Taxes; Fees and Licenses; Royalties and Patents…………………………………………………. 5
\n5.5 Compliance with Laws…………………………………………………………………………. 6
\n5.6 Tests………………………………………………………………………………………. 6
\n5.7 Drawings……………………………………………………………………………………. 6
\n5.8 Binders…………………………………………………………………………………….. 7
\n5.9 Cleaning……………………………………………………………………………………. 7
\n5.10 Start Up……………………………………………………………………………………. 7
\n5.11 General…………………………………………………………………………………….. 7<\/p>\n
ARTICLE 6
\n SUBCONTRACTORS
\n6.1 General…………………………………………………………………………………….. 7
\n6.2 Award of Subcontracts………………………………………………………………………… 7
\n6.3 Subcontractual Relations……………………………………………………………………… 7<\/p>\n
ARTICLE 7
\n SEPARATE CONTRACTS
\n7.1 Owner’s Right to Award Separate Contracts………………………………………………………. 8
\n7.2 Mutual Responsibility of Contractors…………………………………………………………… 8<\/p>\n
ARTICLE 8<\/p>\n
ii<\/p>\n
TIME
\n8.1 Definitions…………………………………………………………………………………. 9
\n8.2 Progress and Completion; Scheduling……………………………………………………………. 9
\n8.3 Delays, Extensions of Time and Overtime………………………………………………………… 10
\n8.4 Temporary Suspension of Work………………………………………………………………….. 12<\/p>\n
ARTICLE 9
\n PAYMENTS AND COMPLETION
\n9.1 Application for Payment; Passage of Title………………………………………………………. 12
\n9.2 Approvals of Applications for Payment………………………………………………………….. 12
\n9.3 Payments Withheld; Owner’s Right to Make Direct Payments for Work; Failure of Payment……………….. 13
\n9.4 Substantial Completion and Final Payment……………………………………………………….. 14
\n9.5 Beneficial Use and Occupancy; Partial Substantial Completion……………………………………… 15<\/p>\n
ARTICLE 10
\n PROTECTION OF PERSONS AND PROPERTY
\n10.1 Responsibility for Safety and Health…………………………………………………………… 16
\n10.2 Protection of Work and Property; Responsibility for Loss…………………………………………. 17
\n10.3 Emergencies…………………………………………………………………………………. 17
\n10.4 Cleanup…………………………………………………………………………………….. 18
\n10.5 Owner’s Standards……………………………………………………………………………. 18<\/p>\n
ARTICLE 11
\n INSURANCE
\n11.1 Insurance Provided by Owner…………………………………………………………………… 18
\n11.2 Contractor’s Insurance……………………………………………………………………….. 18
\n11.3 Schedule of Insurance Coverages……………………………………………………………….. 19
\n11.4 Contractors Equipment Policy………………………………………………………………….. 20
\n11.5 Release of Waiver……………………………………………………………………………. 20
\n11.6 Claims Made Policies…………………………………………………………………………. 20
\n11.7 Indemnification……………………………………………………………………………… 21<\/p>\n
ARTICLE 12
\n CHANGES IN THE WORK
\n12.1 Change Orders and Directives………………………………………………………………….. 21
\n12.2 Changes Requiring an Increase in Contract Sum…………………………………………………… 22
\n12.3 Changes Requiring a Decrease in Contract Sum……………………………………………………. 23
\n12.4 Disputes Regarding Changes……………………………………………………………………. 23
\n12.5 Audit Rights………………………………………………………………………………… 23<\/p>\n
ARTICLE 13
\n CLAIMS
\n13.1 Claims for Extensions of Contract Time…………………………………………………………. 23
\n13.2 Claims for Increases in Contract Sum…………………………………………………………… 23
\n13.3 Resolution of Claims…………………………………………………………………………. 24
\n13.4 No Other Claims……………………………………………………………………………… 24
\n13.5 No Arbitration………………………………………………………………………………. 24<\/p>\n
ARTICLE 14
\n UNCOVERING AND CORRECTION OF WORK;
\n OWNER’S RIGHT TO CARRY OUT WORK
\n14.1 Uncovering of Work…………………………………………………………………………… 24
\n14.2 Correction of Work…………………………………………………………………………… 24
\n14.3 Owner’s Right to Carry Out Work……………………………………………………………….. 25
\n14.4 Acceptance of Defective or Non-Conforming Work………………………………………………….. 25<\/p>\n
ARTICLE 15<\/p>\n
iii<\/p>\n
TERMINATION OF CONTRACT
\n15.1 Termination by Contractor…………………………………………………………………….. 26
\n15.2 Termination by Owner for Cause………………………………………………………………… 26
\n15.3 Termination by Owner Without Cause…………………………………………………………….. 27<\/p>\n
ARTICLE 16
\n MISCELLANEOUS PROVISIONS
\n16.1 Governing Law……………………………………………………………………………….. 27
\n16.2 Assignability; Successors and Assigns………………………………………………………….. 27
\n16.3 Performance and Payment Bonds…………………………………………………………………. 27
\n16.4 Union Agreements…………………………………………………………………………….. 27
\n16.5 General…………………………………………………………………………………….. 28
\n16.6 Immigration Reform Control Act………………………………………………………………… 28
\n16.7 Attorney’s Fees……………………………………………………………………………… 28<\/p>\n
<\/c><\/c><\/s><\/table>\n
iv<\/p>\n
GENERAL CONDITIONS OF THE
\n CONTRACT FOR CONSTRUCTION<\/p>\n
ARTICLE 1
\n DEFINITIONS<\/p>\n
The following terms shall have the meanings set forth below in this Article
\n1. Any terms not otherwise defined in these General Conditions shall have the
\nmeaning given to such terms in the Agreement.<\/p>\n
1.1 THE CONTRACT. The Contract for Construction (referred to herein as the
\n“Contract”) is the sum of all Contract Documents. It represents the entire and
\nintegrated agreement between the Owner and the Contractor and supersedes all
\nprior negotiations, representations, understandings or agreements, either
\nwritten or oral. The Contract may be amended or modified only by a Modification.<\/p>\n
1.1.1 CONTRACT DOCUMENTS. The Contract Documents are as defined
\n in the Agreement. The Contract Documents do not include bidding
\n documents, such as the Advertisement or Invitation to Bid, the
\n Instructions to Bidders, sample forms, the Contractor’s Bid or
\n portions of Addenda relating to and to the extent that they may
\n relate to any of the bidding documents or bidding procedure.<\/p>\n
1.1.2 ADDENDUM. An Addendum is a written or graphic instrument
\n issued by the Owner prior to the execution of the Agreement which
\n sets forth additions, deletions or other revisions to the Contract
\n Documents or clarifications thereof.<\/p>\n
1.1.3 MODIFICATION. A Modification is any change or
\n modification to the Contract agreed to in writing by Owner and
\n Contractor. A Modification may be accomplished by: (a) a Change
\n Order; (b) a Directive or (c) any other written amendment to the
\n Contract signed by both parties. A Modification may be made only
\n after execution of the Agreement. No Directive shall be construed
\n as a Change Order or other Modification unless it expressly so
\n states.<\/p>\n
1.1.4 CHANGE ORDER. A Change Order is a written Modification
\n executed by both parties (except in the event of a unilateral
\n Change Order as herein provided) and consisting of additions,
\n deletions or other changes to the Contract. A Change Order may be
\n accompanied by and\/or may identify additional or revised Drawings,
\n sketches or other written instructions which become and form part
\n of the Contract Documents by virtue of the executed Change Order.
\n Except as otherwise provided in Subparagraph 1.1.5, a change in the
\n Work, or a change in the Contract Time or the Contract Sum shall
\n become the subject of a Change Order.<\/p>\n
1.1.5 DIRECTIVE. A Directive is a written document issued by
\n the Owner and consisting of additions, deletions, clarifications or
\n other written instructions issued by the Owner with respect to the
\n performance of the Work or the activities of the Contractor on the
\n Job Site or the property of the Owner. A Directive may include, but
\n shall not be limited to, a bulletin, an engineering change or other
\n orders or instructions. Directives may become the subject of a
\n Change Order, either singularly or collectively. Directives shall
\n become the subject of a Change Order if they involve a Change in
\n the Work or a change in the Contract Time or the Contract Sum.<\/p>\n
1.2 THE OWNER. The Owner is the person or entity identified as such in
\nthe Agreement. The term “Owner”, whenever it appears in the Contract
\nDocuments, means the Owner and\/or the Owner’s Representative acting on behalf
\nor for the benefit of the Owner (except as otherwise specified in the
\nContract Documents or as the context otherwise requires); provided, however,
\nthat with respect to any provisions of the Contract which require the
\nContractor to provide insurance for the protection of the Owner or to release
\nthe Owner from, or waive, any claims the Contractor may have against it, the
\nterm “Owner” shall mean the Owner and the Owner’s Representative, and the
\nparent, related, affiliated and subsidiary companies or partnerships of the
\nOwner (if any) and the officers, directors, shareholders, agents, employees,
\npartners and assigns of each, and shall, to the extent applicable partners,
\ninclude the parent, related, affiliated and subsidiary companies of the
\nOwner’s Representative and the officers, directors, shareholders, agents,
\nemployees and assigns of each.<\/p>\n
1.3 THE OWNER’S REPRESENTATIVE. The Owner’s Representative is the
\nperson or entity designated from time to time by the Owner to act as its
\nrepresentative as identified in Article 3 of the Agreement or the most
\ncurrent Modification thereto.<\/p>\n
1.4 THE CONTRACTOR. The Contractor is the person or entity identified as
\nsuch in the Agreement. The Contractor shall so designate a sufficient number
\nof Project representatives that there shall be at least one authorized <\/p>\n
1<\/p>\n
representative on the Job Site at all times during which the Work is being
\nperformed including, without limitation, a project manager (herein referred
\nto as the “Project Manager”) who shall at all times have authority to act (in
\nall capacities necessary for the Work) for and bind the Contractor.<\/p>\n
1.5 SUBCONTRACTOR; SUB-SUBCONTRACTOR.<\/p>\n
1.5.1 A Subcontractor is a person or entity having a direct
\n contract with the Contractor to perform any of the Work at the Job
\n Site or to supply any materials or equipment to be incorporated in,
\n or utilized in connection with, the Work.<\/p>\n
1.5.2 A Sub-subcontractor is a person or organization having a
\n direct or indirect contract (on any tier) with a Subcontractor to
\n perform any of the Work at the Job Site or to supply any materials
\n or equipment to be incorporated in, or utilized in connection with,
\n the Work.<\/p>\n
1.6 JOB SITE. The Job Site shall mean the area in which the Work is to
\nbe performed and such other areas as may be designated by the Owner for the
\nstorage of the Contractor’s materials and equipment. <\/p>\n
1.7 WORK; CONTRACT TIME; CONTRACT SUM. The Work, the Contract Time and
\nthe Contract Sum are as defined in the Agreement.<\/p>\n
1.8 PROVIDE. Except as the context otherwise requires, the term
\n“provide” means to furnish, fabricate, complete, deliver, install and erect,
\nincluding all labor, materials, equipment, apparatus, appurtenances and
\nexpenses necessary to complete in place, ready for operation or use under the
\nterms of the Specifications.<\/p>\n
1.9 PLANS Wherever the words “Plan” or “Plans” are used in the Contract
\nDocuments, they shall be construed as having the same meaning as Drawing or
\nDrawings (as referred to in the Agreement).<\/p>\n
1.10 SPECIFICATIONS. The Specifications shall include those referred to
\nin the Agreement.<\/p>\n
1.11 SUBSTANTIAL COMPLETION. Substantial Completion shall occur when
\nOwner, in Owner’s reasonable discretion, certifies that all construction is
\nsufficiently complete in accordance with the Contract Documents so that the
\nOwner may, if it so elects, occupy and use the Work or designated portion
\nthereof for the purpose for which it was intended.<\/p>\n
ARTICLE 2
\n THE CONTRACT DOCUMENTS<\/p>\n
2.1 EXECUTION, INTENT AND INTERPRETATIONS<\/p>\n
2.1.1 The Contractor warrants and represents that, in executing
\n the Agreement and undertaking the Work, it has not relied upon any
\n oral inducement or representation by the Owner, the Owner’s
\n Representative or any of their officers or agents as to the nature
\n of the Work, the Job Site, the Project conditions or otherwise.<\/p>\n
2.1.2 Execution of the Contract by the Contractor is a
\n representation by the Contractor that the Contact Documents are
\n sufficient to have enabled the Contractor to determine the cost of
\n the Work described therein and that the Contract Documents are
\n sufficient to enable Contractor to construct the Work described
\n therein, and otherwise to fulfill all of its obligations hereunder,
\n including, but not limited to, Contractor’s obligation to construct
\n the Work for an amount not in excess of the Contract Sum on or
\n before the date(s) of Substantial Completion for the Work or
\n designated portion(s) thereof established in the Agreement.<\/p>\n
The Contractor further acknowledges and declares that it has
\n visited and, as an experienced and prudent contractor, carefully
\n examined the Job Site, including all existing structures, and is
\n fully familiar with all of the conditions thereon affecting the
\n same. In connection therewith, Contractor specifically represents
\n and warrants to Owner that it has, by careful examination,
\n satisfied itself as to: (a) the nature, location, and character of
\n the Project and the Job Site, including the conditions of the Job
\n Site and all structures and obstructions thereon, both natural and
\n man-made; (b) the nature, location, and character of the general
\n area in which the Project is located, including its climatic
\n conditions, available labor supply and labor costs, and available
\n equipment supply and equipment costs; and (c) the quality and
\n quantity of all materials, supplies, tools, equipment, labor, and
\n professional services necessary to complete the Work in the manner
\n and within the cost and time frame required by the Contract
\n Documents.<\/p>\n
The Contractor further acknowledges that it shall be solely
\n responsible for understanding the location of subsurface lines,
\n cables, pipes and water as well as the conditions and
\n characteristics of all subsoils based upon a careful review, as a
\n prudent and experienced Contractor, of reports as <\/p>\n
2<\/p>\n
provided by professionals affiliated with the Project, and that it
\n has made all reasonable interpretations, as an experienced and
\n prudent Contractor, of such reports, in combination with a review
\n of the Job Site conditions, to complete the Work as per the
\n Contract Documents.<\/p>\n
In connection with the foregoing, and having carefully
\n examined all Contract Documents, as aforesaid, and having visited
\n the Job Site, the Contractor acknowledges and declares that it has
\n no knowledge of any discrepancies, omissions, ambiguities, or
\n conflicts in said Contract Documents and that if it becomes aware
\n of any such discrepancies, omissions, ambiguities, or conflicts, it
\n will promptly notify Owner and Architect of such matters.<\/p>\n
Further, Contractor recognizes that care is required under
\n urban site construction circumstances with respect to safety,
\n protection of pedestrians, cleanliness of the site, health and
\n other laws, and protection of existing utilities, adjacent streets
\n and property. In arriving at the Contract Sum and the Contract
\n Time, Contractor has, as an experienced and prudent contractor,
\n exercised its best judgment and expertise to include the impact of
\n such circumstances upon the Contract Sum and the Contract Time.<\/p>\n
2.1.3 The Contract Documents include all items necessary for the
\n proper execution and completion of the Work by the Contractor. The
\n Work shall consist of all items specifically included in the
\n Contract Documents as well as additional items of work which an
\n experienced and prudent contractor would include along with that
\n which is specified in order to complete the Work in accordance with
\n the Contract Documents. The Contract Documents are complementary,
\n and what is required by any one Contract Document shall be as
\n binding as if required by all. Contractor acknowledges that any
\n differences between the requirements of the Drawings and the
\n Specifications or any differences noted within the Drawings
\n themselves or within the Specifications themselves and have been
\n referred to the Owner and Architect by Contractor prior to the
\n submission of bids and have been clarified to the satisfaction of
\n the Contractor. If any such differences or conflicts were not
\n called to the Owner’s and Architect’s attention prior to submission
\n of bids, the Architect and\/or the Owner shall decide which of the
\n conflicting requirements will govern based upon the most stringent
\n of the requirements, and, subject to the approval of the Owner, the
\n Contractor shall perform the Work at no additional cost and\/or time
\n to the Owner in accordance with the Architect’s and\/or Owner’s
\n decision. Subject to confirmation or approval by the Owner, large
\n scale Drawings take precedence over smaller scaled Drawings,
\n figured dimensions on the Drawings take precedence over scaled
\n dimensions, and noted items on the Drawings take precedence over
\n graphic representations.<\/p>\n
2.1.4 All discrepancies and ambiguities in the Contract
\n Documents shall be interpreted so as to result in quality and
\n complete performance. Where variances occur between the drawings
\n and the specifications or within either document itself, or between
\n Contract Documents and site conditions, they shall be brought, in
\n writing to the immediate attention of the Architect and the Owner.
\n In case of discrepancies between Contract Documents, the Contractor
\n shall secure written instructions from the Architect and the Owner
\n before proceeding with the Work affected by omissions or
\n discrepancies. The Contractor shall assume full responsibility for
\n proceeding with such work without approval from the Architect and
\n the Owner including, but not limited to, the duty to remove such
\n work and correct any consequences of such removal.<\/p>\n
2.1.5 When more than one material, brand or process is
\n specified for a particular item of Work, the choice shall be the
\n Contractor’s. Contractor may, after notifying the Architect and
\n Owner, select the one it considers to be the best. Approval by
\n Architect or Owner of materials, suppliers, processes or
\n Subcontractors does not imply a waiver of any Contract requirements
\n including, without limitation, Contractor’s warranty.<\/p>\n
2.2 COPIES FURNISHED; OWNERSHIP. All Contract Documents and copies
\nthereof furnished by the Owner or the Owner’s Representative are and shall
\nremain the Owner’s property. They are not to be published or used by the
\nContractor on any other project and, with the exception of one complete set
\nfor the Contractor, are to be returned to the Owner upon completion of the
\nWork.<\/p>\n
2.3 NO ORAL WAIVER. The provisions of this Contract cannot be amended,
\nmodified, varied or waived in any respect except by a Modification signed by
\nthe Owner and the Contractor. The Contractor is hereby given notice that no
\nperson has authority to orally waive, or to release the Contractor from, any
\nof the Contractor’s duties or obligations under or arising out of this
\nContract. Any waiver, approval or consent granted to the Contractor shall be
\nlimited to those matters specifically and expressly stated thereby to be
\nwaived, approved or consented to and shall not relieve the Contractor of the
\nobligation to obtain any future waiver, approval or consent. Despite any
\nprior waiver, approval or consent as to any particular matter, the <\/p>\n
3<\/p>\n
Owner may at any time require strict compliance with the Contract Documents
\nas to any succeeding obligation respecting the same matter or as to any other
\nmatter.<\/p>\n
ARTICLE 3
\n OWNER<\/p>\n
3.1 EASEMENTS. The Owner shall obtain and pay for any easements
\nrequired for permanent structures.<\/p>\n
3.2 ACCESS The Owner A\/E, and governmental inspectors, shall at all
\ntimes have access to the Work at each and every stage of preparation and
\nprogress. The Contractor shall provide facilities for such access.<\/p>\n
ARTICLE 4
\n THE OWNER’S REPRESENTATIONS<\/p>\n
4.1 CONTRACTUAL RELATIONSHIPS. Nothing contained in the Contract
\nDocuments shall create any contractual relationship between the Owner’s
\nRepresentative and the Contractor; provided, however, that the Owner’s
\nRepresentative shall be deemed to be a third party beneficiary of those
\nobligations of the Contractor to the Owner’s Representative as imposed by the
\nContract Documents, (including, but not limited to, the Owner’s
\nRepresentative’s rights pursuant to Paragraph 7.2 and Articles 10 and 11 of
\nthese General Conditions).<\/p>\n
4.2 ROLE Except as otherwise provided in the Contract Documents, and
\nuntil the Contractor is notified in writing to the contrary, all actions to
\nbe taken by, all approvals, notices, consents, directions and instructions to
\nbe given by, all notices and other matters to be delivered to, all
\ndeterminations and decisions to be made by and, in general, all other action
\nto be taken by, or given to, the Owner shall be taken, given and made by, or
\ndelivered or given to, the Owner’s Representative in the name of and on
\nbehalf of the Owner; provided, however, that the Owner (and not the Owner’s
\nRepresentative) shall be solely obligated to the Contractor for all sums
\nrequired to be paid by the Owner to the Contractor hereunder. If the Owner’s
\nRepresentative is an organization, then it shall, in turn, act through such
\nperson or persons as it may designate in writing from time to time. Only
\nthose so designated are authorized to grant on behalf of the Owner any
\napproval, consent or waiver with respect to the Contract Documents or the
\nWork, or to otherwise act for the Owner in any capacity whatsoever.<\/p>\n
ARTICLE 5
\n CONTRACTOR<\/p>\n
5.1 SUPERVISION AND CONSTRUCTION PROCEDURES<\/p>\n
5.1.1 The Contractor shall supervise and direct the Work using
\n its best skill and attention. The Contractor shall be solely
\n responsible for all construction means, methods, techniques,
\n sequences, coordination, scheduling (subject to Article 8) and
\n procedures for all cleanup and for all safety and weather
\n precautions and programs in connection with the Work.<\/p>\n
5.1.2 The superintendent and project manager selected by the
\n Contractor shall be subject to Owner’s approval, which approval
\n will not be unreasonably denied, and shall be approved in writing
\n by Owner. If, for any reason and at any time, the services of the
\n superintendent and\/or project manager selected by Contractor and
\n approved by Owner are no longer available, then the Contractor
\n shall not select a substitute superintendent and\/or project manager
\n without the prior written consent of the Owner in accordance with
\n this paragraph.<\/p>\n
5.1.3 The Contractor shall be fully responsible to the Owner
\n for the acts and omissions of its employees and of all
\n Subcontractors and Sub-subcontractors and their agents and
\n employees, and all other persons performing any of the Work in the
\n same manner as if they were the acts and omissions of persons
\n directly employed by the Contractor.<\/p>\n
5.1.4 The Contractor shall not be relieved of its obligations
\n to perform the Work in accordance with the Contract Documents
\n either by the activities or duties of the Owner in its
\n administration of the Contract, including any inspections or tests
\n required or performed under Paragraph 5.6, or by approvals or other
\n similar <\/p>\n
4<\/p>\n
action with regard to shop drawings or submittals (of any type), or
\n by the activities of persons other than the Contractor with respect
\n to the Project. Further, notwithstanding the fact that a dispute,
\n controversy or other question may have arisen between the parties
\n hereto relating to the execution or progress of the Work, the
\n interpretation of the Contract Documents, the payment of any
\n monies, the delivery of any materials or any other matter
\n whatsoever, the Contractor shall not be relieved of its obligations
\n to pursue the Work diligently under the Contract Documents pending
\n the determination of such dispute, controversy or other question.<\/p>\n
5.1.5 The Contractor shall establish and maintain bench marks and all
\n other grades, lines and levels necessary for the Work, report
\n errors and inconsistencies to the Owner and A\/E before commencing
\n Work, and, if applicable, review the placement of the building(s)
\n and permanent facilities on the Job Site with the Owner and A\/E
\n after all lines are staked out and before foundation Work is
\n started. Any encroachments made by Contractor or its Subcontractors
\n or Sub-subcontractors (of any tier) on adjacent properties due to
\n construction as revealed by an improvement or other survey shall be
\n the sole responsibility of the Contractor (except for encroachments
\n arising from errors and omissions in the Contract Documents not
\n reasonably discoverable by Contractor), and Contractor shall
\n correct such encroachments within thirty (30) days of the
\n improvement survey (or as soon thereafter as reasonably possible),
\n at Contractor’s sole cost and expense, either by the removal of the
\n encroachment (and subsequent reconstruction on the Project site) or
\n agreement with the adjacent property owner(s) (in form and
\n substance satisfactory to Owner in its sole discretion) allowing
\n the encroachments to remain.<\/p>\n
5.2 MATERIALS AND EQUIPMENT.<\/p>\n
5.2.1 The Contractor shall submit to Owner, in a form
\n acceptable to Owner, a submittal log which will outline the
\n requirements of each submittal of materials or equipment by the
\n architectural division breakdown, including status dates of
\n delivery of such materials or equipment.<\/p>\n
5.2.2 Materials shall conform to manufacturer’s standards in
\n effect at the date of execution of the Agreement and shall be
\n installed in strict accordance with manufacturer’s directions. The
\n Contractor shall, reasonably require by Owner or Architect, furnish
\n satisfactory evidence as to the kind and quality of all materials.
\n After the Contract Documents are executed, if it becomes necessary
\n for the Contractor to substitute a material or product of a
\n different brand or manufacturer in lieu of that specified,
\n Contractor shall submit a written request to the owner for approval
\n of such proposed substitutions. Each request for substitution shall
\n be accompanied by complete descriptive literature and performance
\n data upon the specified item and the proposed substitution, plus
\n any samples as may be required by the Owner. Each proposed
\n substitution shall require the written approval of the Owner before
\n its incorporation into the Work, which shall not constitute
\n authorization or approval of a change in the Contract Sum or
\n Contract Time. The Contractor shall submit requests for
\n substitution as soon as practicable after the need for the
\n substitution is determined to allow for adequate consideration of
\n such request and to minimize delay in the progress of the Work.<\/p>\n
5.3 WARRANTY. The Contractor represents and warrants to the Owner that
\nall materials and equipment furnished under the Contract shall be new unless
\notherwise specified, and that all Work shall be (i) of good quality, free
\nfrom faults and defects, and (ii) in conformance with the Contract Documents.
\nAll Work not so conforming to these standards shall be considered defective.
\nThis warranty is not limited by the provisions of Paragraph 14.2 of these
\nGeneral Conditions or Article 9 of the Agreement. All warranties and
\nguarantees from Subcontractors or Sub-subcontractors (including
\nmanufacturers) shall be assignable to the Owner regardless of whether it is
\nso stated therein, and the Contractor agrees to assign all such warranties
\nand guarantees to the Owner and deliver them pursuant to Subparagraph 9.4.2.
\nThe Contractor’s obligations under this Paragraph shall survive the
\nexpiration or sooner termination of the Contract.<\/p>\n
5.4 TAXES; FEES AND LICENSES; ROYALTIES AND PATENTS.<\/p>\n
5.4.1 The Contractor shall pay, or cause to be paid, all import
\n duties and sales, consumer, use, excise, value added and ad valorem
\n taxes required to be paid in connection with the Work or upon
\n materials, tools or equipment brought to the Job Site or used in
\n the Work. If any of the foregoing taxes are not paid in a timely
\n manner, the Owner may withhold the amount of any such taxes from
\n any amounts owing to the Contractor under the Contract Documents,
\n submit the amount so withheld to the appropriate taxing authority
\n on behalf of the Contractor or its Subcontractors or
\n Sub-subcontractors and offset said amount against the Contract Sum.<\/p>\n
5.4.2 The Contractor shall secure and pay for all governmental
\n fees, permits and licenses which <\/p>\n
5<\/p>\n
the Owner is not specifically required to provide and pay for under
\n the Contract Documents. The Contractor shall secure and pay for all
\n temporary utility connection required to perform the Work,
\n including, without limitation, electrical power, gas and water.<\/p>\n
5.4.3 The Contractor shall pay all royalties and license fees
\n incident to the use of any invention, design, process or device
\n which is the subject of patent rights, copyrights or other
\n proprietary rights held by others, all of which shall be deemed
\n included in the Contract Sum. The Contractor shall not unlawfully
\n use or install any patented or copyrighted article and shall
\n indemnify the Owner from and against any and all actions, suits,
\n judgments, losses, costs or expenses, including attorneys’ fees,
\n arising out of any claims for infringement of, or otherwise related
\n to, any patent rights or copyrights. In the event of any injunction
\n or legal action arising out of any such infringement which has the
\n effect of delaying the Work, the Owner may require the Contractor
\n to substitute such other articles of like kind as will make it
\n possible to proceed with and complete the Work, and all costs and
\n expenses occasioned thereby shall be borne by the Contractor.<\/p>\n
5.5 COMPLIANCE WITH LAWS. The Contractor shall, at its cost and
\nexpense, comply with each and every federal, state and local law, ordinance,
\ncode, rule and regulation, as well as the lawful order or decree of any
\npublic or quasi-public authority, bearing on the performance and not the
\ndesign (unless Contractor, any Subcontractor, and\/or any of their respective
\nagents, representatives, suppliers or any other person or entity directly or
\nindirectly employed, utilized and\/or controlled by any of them prepared the
\ndesign)of the Work specifically including, but not limited to, those
\nspecified in Subparagraph 10.1.2 and all applicable building codes. The
\nContractor shall review the Contract Documents, as an experienced and prudent
\ncontractor, in order to determine whether they are in accordance with all
\nbuilding laws, codes and regulations. Contractor shall immediately provide
\nwritten notice to Architect and Owner of any building laws, codes or
\nregulations that the Contract Documents are in violation of and that
\nContractor knows of or should, as an experienced and prudent contractor, know
\nof. The Contractor shall not violate any zoning, set back or other location
\nrequirements of law, or of any recorded covenants. If Contractor performs the
\nWork or any portion thereof in violation of any laws, statutes, ordinances,
\nbuilding codes or rules and regulations without express prior written
\napproval from Architect and Owner, Contractor shall be fully and solely
\nresponsible for such Work and all costs and expenses attributable thereto.<\/p>\n
5.6 TESTS<\/p>\n
5.6.1 If the Contract Documents, or any laws, ordinances,
\n rules, regulations or any orders or decrease of any public or
\n quasi-public authority having jurisdiction, or common practice in
\n the industry, require or dictate that the Contractor have any
\n portion of the Work inspected, tested or approved, the Contractor
\n shall advise the Owner in a timely manner (in writing, if
\n practicable) of its readiness and of the date arranged so that the
\n Owner may observe such inspection, testing or approval. The
\n Contractor shall bear all costs of such inspections, tests and
\n approvals except as otherwise specified in the Contract Documents.<\/p>\n
5.6.2 The Owner may require any special inspection, testing or
\n approval of the Work not included under Subparagraph 5.7.1, or any
\n more stringent inspection, testing or approval thereof, in which
\n event it shall instruct the Contractor to order such inspection,
\n testing or approval, and the Contractor shall advise the Owner in a
\n timely manner (in writing, if practicable) as in Subparagraph
\n 5.7.1. If such inspection or testing reveals any failure of the
\n Work or the performance thereof to comply with the requirements of
\n the Contract Documents, or reveals any defect in the Work, the
\n Contractor shall bear the costs of such inspection or testing and
\n all costs to correct the Work to the satisfaction of the Owner,
\n which, if incurred by the Owner, may be deducted or offset by the
\n Owner against any amounts then or thereafter due to the Contractor.
\n If such inspection or testing proves that the Work was performed
\n properly, the Owner shall bear the costs of such inspection or
\n testing.<\/p>\n
5.6.3 Required certificates of inspection, testing or approval
\n shall be secured by the Contractor and promptly delivered by it to
\n the Owner.<\/p>\n
5.7 DRAWINGS. Shop Drawings for architectural, structural, mechanical
\nand electrical work shall be submitted for approval to the A\/E and a copy of
\nall such submissions shall be provided simultaneously to the Owner.
\nContractor shall maintain an accurate record of all deviations from the
\napproved shop Drawings and the Plans and the Specifications which occur in
\nthe Work as actually constructed, and shall submit to the A\/E for approval
\ntwo (2) sets (one to be reproducible) of complete information, including
\ndescriptions, drawings, sketches, marked prints and similar data, indicating
\nthe “as-built” conditions. Contractor shall keep “record” and shop drawings
\nup to date as the Work progresses and shall at all times keep such up-to-date
\ndrawings available to Owner and A\/E at the Work site. Submission of all
\n“record” drawings to Owner is required prior to Contractor’s Application for
\nFinal Payment.<\/p>\n
6<\/p>\n
5.8 BINDERS. The Contractor shall assemble for approval by the A\/E and the
\nOwner three (3) complete copies in loose leaf binders of all operating and
\nmaintenance data for all equipment and machinery, if any, installed as a part
\nof the Work.<\/p>\n
5.9 CLEANING. The Contractor shall be responsible for damaged or broken
\nglass and at completion of the Work shall replace such damaged or broken
\nglass. The Contractor shall perform the following final cleaning at
\ncompletion of the Work, as applicable: (a) removal of all temporary
\nprotections; (b) removal of all marks, stains, fingerprints and other soil or
\ndirt from all surfaces and other work; (c) removal of all spots, mortar,
\nplaster, soil and paint from ceramic tile, marble, and other finish materials
\nand from all surfaces and other work; (d) cleaning of all fixtures,
\ncabinetwork and equipment, removal of all stains, paint, dirt, and dust and
\nleave same in an undamaged and new condition; and (e) cleaning of all
\nsurfaces and other work in accordance with recommendations of the
\nmanufacturer.<\/p>\n
5.10 START UP. After Substantial Completion, the Contractor shall perform
\nor assist Owner in the start-up of all Equipment and other mechanical
\noperations and systems included as a part of the Work.<\/p>\n
5.11 GENERAL. The duties and responsibilities of the Contractor as set
\nforth in this Article 5 are in addition to, and not in lieu of, other duties
\nand responsibilities of the Contractor enumerated elsewhere in the Contract
\nDocuments.<\/p>\n
ARTICLE 6
\n SUBCONTRACTORS<\/p>\n
6.1 GENERAL. Nothing contained in the Contract Documents shall create any
\ncontractual relationship between the Owner or the Owner’s Representative and
\nany Subcontractor or Sub-subcontractor. However, it is acknowledged that the
\nOwner and Owner’s Representative are intended third party beneficiaries of
\nthe obligations of the Subcontractors and Sub-subcontractors related to the
\nWork and the Project.<\/p>\n
6.2 AWARD OF SUBCONTRACTS. The Contractor shall, prior to awarding any
\nsubcontract, notify the Owner in writing of the names of all Subcontractors
\nproposed for the several parts of the Work and shall include with any such
\nnotice the completed insurance information form and any insurance
\ncertificates required by this Contract for any proposed Subcontractor. The
\nOwner may also require such lists and information regarding any proposed
\nSub-subcontractors. The Contractor shall also advise the Owner in writing of
\nany Subcontractor or Sub-subcontractor with which it shares any business
\nrelationship or financial interest, and of the nature and extent of any such
\nrelationship or interest. No Subcontractor or Sub-subcontractor shall be
\nengaged if objected to by the Owner; provided, however, that if the Owner
\ndoes not take exception to a Subcontractor or Sub-subcontractor in writing
\nwithin fifteen (15) days of its receipt of such notification, such
\nSubcontractor or Sub-subcontractor shall be deemed acceptable to the Owner.
\nThe Owner shall not be liable to the Contractor in any manner arising out of
\nthe Owner’s objection to a proposed Subcontractor or Sub-subcontractor. The
\nContractor shall not terminate the employment of a Subcontractor or
\nSub-subcontractor engaged in the Work prior to the expiration of that
\nsubcontract without good cause shown and the Owner’s prior approval after
\nreasonable notice of the Contractor’s intent to so terminate. If any
\nSubcontractor withdraws, becomes insolvent or otherwise incapacitated,
\nabandons the Work or is dismissed by Contractor, then Contractor shall
\npromptly submit a substitute Subcontractor to Owner for Owner’s approval,
\nwhich approval shall not be unreasonably withheld. If Owner rejects any
\nproposed substitute Subcontractor, Owner will provide Contractor with Owner’s
\nreason for such rejection. All costs incurred by Contractor in replacing any
\nSubcontractor shall be borne by Contractor. The Contractor shall provide the
\nOwner with copies of each subcontract with the subcontractor within ten (10)
\ndays after execution of the subcontract by the Contractor. If the Owner
\nprovides Contractor with a list of pre-approved Subcontractors prior to bid,
\nthe Owner may elect to reject a listed Subcontractor and that portion of the
\nContractor’s bid relating thereto. In that event, Owner shall be liable for
\nthe difference in cost between the bid of the original Subcontractor and that
\nof the Subcontractor hired to perform the Work. If the Owner provides no such
\npre-approved list, Owner may elect to reject any Subcontractor proposed by
\nContractor and shall be liable for the difference in cost between the bid of
\nthe originally proposed Subcontractor and that of the Subcontractor hired to
\nperform the work only if Owner’s rejection is unreasonable or arbitrary.<\/p>\n
6.3 SUBCONTRACTUAL RELATIONS.<\/p>\n
6.3.1 All subcontracts and sub-subcontracts shall be in writing.
\n Each subcontract and sub-subcontract shall contain a reference to
\n this Contract and shall incorporate the terms and conditions hereof
\n to the full extent applicable to the portion of the Work covered
\n thereby. Each Subcontractor must agree, for the benefit of the
\n Owner, to be bound by, and to require each of its Sub-subcontractors
\n to be bound by, such terms and conditions to the full extent
\n applicable to its portion of the Work. In addition, each<\/p>\n
7<\/p>\n
Subcontract and sub-subcontract must: (i) require that the Work
\n be performed in strict accordance with the requirements of the
\n Contract Documents; (ii) waive all rights that the
\n subcontractor or sub-subcontractor may have against the Owner for
\n damages caused by fire or other perils covered by the property
\n insurance required by the Contract Documents; (iii)
\n require the subcontractor or sub-subcontractor to carry and
\n maintain insurance of the types and in the amounts required of
\n Contractor by the Contract; (iv) require the subcontractor or
\n sub-subcontractor to furnish such certificates and waivers as the
\n Owner, any lender or title insurer may reasonably request,
\n including waivers of mechanics’, labor and materialmens’ lien
\n rights to the extent permitted by law; and (v) provide that the
\n subcontract is freely assignable by Contractor to Owner and its
\n assigns.<\/p>\n
6.3.2 Each subcontract awarded hereunder by Contractor is hereby
\n assigned by Contractor to Owner; provided, however, that such
\n assignment is effective only after termination of the Contract by
\n Owner (in whole or in part) and only as to those subcontracts
\n which the Owner affirmatively accepts by notifying the
\n Subcontractor in writing. Upon the acceptance of a particular
\n subcontract by Owner, (i) Contractor will promptly furnish to Owner
\n the original signed copy of the subcontract and (ii) Owner
\n shall only be required to compensate the designated Subcontractor
\n for compensation accruing for Work done or materials delivered
\n from and after the date on which Owner accepts the Subcontract.
\n Contractor shall be solely responsible for promptly paying all sums
\n due and owing by Contractor to the designated Subcontractor for
\n work performed or material supplied prior to Owner’s acceptance of
\n the applicable Subcontract.<\/p>\n
6.3.3 Contractor shall be solely and fully responsible for the
\n payment of all Subcontractors and all other persons or entities
\n directly or indirectly employed by the Contractor, whether or not
\n such persons or entities are entitled to assert mechanics’ lien,
\n equitable lien or labor and materialmens’ lien rights against the
\n property of Owner or the Work. If Contractor fails to make payment
\n to any Subcontractors, Owner will have the right to make payment
\n directly to such subcontractors for the amount claimed to be due by
\n such party, and the amount of any such payment may be charged to
\n Contractor (which Contractor will promptly pay) or deducted from the
\n amount due or to become due contractor under the Contract.<\/p>\n
ARTICLE 7
\n SEPARATE CONTRACTS<\/p>\n
7.1 OWNER’S RIGHT TO AWARD SEPARATE CONTRACTS. The Owner reserves the right
\nto award other contracts in connection with the Project or other work on the
\nJob Site on any terms and conditions which the Owner may from time to time
\ndetermine in its sole discretion (hereinafter referred to as “Separate
\nContracts”; and such other Contractors are hereinafter referred to as
\n“Separate Contractors”).<\/p>\n
7.2 MUTUAL RESPONSIBILITY OF CONTRACTORS.<\/p>\n
7.2.1 The Contractor shall afford all Separate Contractors and the
\n Owner reasonable opportunity for the introduction and storage of their
\n materials and equipment and for the execution of their work and shall
\n properly cooperate, connect and coordinate the Work with such other work
\n as shall be in the best interest of the Project as reasonably determined
\n by the Owner.<\/p>\n
7.2.2 If the execution or result of any part of the Work depends upon
\n any work of the Owner or of any Separate Contractor, the Contractor
\n shall, prior to proceeding with the Work, inspect and promptly
\n report to the Owner in writing any apparent discrepancies or
\n defects in such work of the Owner or of any Separate Contractor
\n that render it unsuitable for the proper execution or result
\n of any part of the Work. Failure of the Contractor to so inspect
\n and report shall constitute an acceptance of the Owner’s or
\n Separate Contractor’s work as fit and proper to receive the Work,
\n except as to defects which may develop in the Owner’s or Separate
\n Contractor’s work after completion of the Work and which the
\n Contractor could not have discovered by its inspection prior to the
\n completion of the Work.<\/p>\n
7.2.3 Should the Contractor cause damage to the work or property of the
\n Owner or of any Separate Contractor on the Project, or to other work
\n on the Job Site, or delay or interfere with the Owner’s or any
\n Separate Contractor’s work, the Contractor shall be liable for the
\n same; and, in the case of a Separate Contractor, the Contractor
\n shall attempt to settle said claim with such Separate Contractor
\n prior to such Separate <\/p>\n
8<\/p>\n
Contractor’s institution of litigation or other proceedings against
\n the Contractor. If so requested by the parties to the dispute, the
\n Owner may, but shall not be obligated to, arbitrate the dispute, in
\n which event the decision of the Owner shall be final and binding on
\n the parties to the dispute.<\/p>\n
7.2.4 Should any Separate Contractor cause damage to the Work or to
\n the property of the Contractor or cause delay or interference with the
\n Contractor’s performance of the Work, the Contractor shall present to
\n such Separate Contractor any claims it may have as a result of such
\n damage, delay or interference (with an information copy to the
\n Owner) and shall attempt to settle its claim against such Separate
\n Contractor prior to the institution of litigation or other
\n proceedings against said such Separate Contractor. If so requested by
\n the parties to the dispute, the Owner may, but shall not be obligated to,
\n arbitrate the dispute, in which event the decision of the Owner shall be
\n final and binding on the parties to the dispute. In no event shall the
\n Contractor seek to recover from the Owner or the Owner’s Representative,
\n and the Contractor hereby represents that it will not seek to recover
\n from them, any costs, expenses or losses incurred by the Contractor as a
\n result of any damage to the Work or property of the Contractor or any
\n delay or interference caused or allegedly caused by any Separate
\n Contractor.<\/p>\n
7.2.5 If a dispute arises between the Contractor and any Separate
\n Contractors as to the responsibility for cleaning as required by the
\n Contract Documents, the Owner may clean and charge the cost thereof to
\n the responsible contractor, or apportion it among the several responsible
\n contractors, as the Owner shall reasonably determine to be just.<\/p>\n
ARTICLE 8
\n TIME<\/p>\n
8.1 DEFINITIONS.<\/p>\n
8.1.1 Whenever the word “day” is used in the Contract Documents, it
\n shall mean a calendar day unless otherwise specifically provided.<\/p>\n
8.2 PROGRESS AND COMPLETION; SCHEDULING.<\/p>\n
8.2.1 All times and dates stated in the Contract Documents
\n including, without limitation, the Commencement Date, Milestone Dates,
\n the Substantial Completion Date, and all dates and times for the
\n delivery and installation of materials and equipment, are of the
\n essence of the Contract.<\/p>\n
8.2.2 The Contractor shall begin the Work on the Commencement Date
\n and shall perform the Work diligently, expeditiously and with adequate
\n resources so as to meet all Milestones and complete all the Work within
\n the Contract Time. The scheduling of the Work shall be performed and
\n monitored by the Contractor utilizing a reasonable method to be chosen
\n by the Owner. The Contractor (and its Subcontractors, if the Owner
\n requires) shall prepare a construction time schedule (the “Schedule”)
\n setting forth the times by which each significant segment of the Work
\n must be commenced and completed and the schedule pursuant to which the
\n Work must be performed in order for the Work to be completed on time.
\n The Schedule shall be subject to Owner’s approval. In addition, the
\n Contractor (and its Subcontractors, if the Owner requires) shall
\n furnish all scheduling information requested by the Owner (in such form
\n and detail as requested for the particular portion of the Work and as
\n approved by Owner) within two (2) weeks of the Owner’s request and
\n shall attend such meetings concerning scheduling as the Owner may call
\n from time to time. The Contractor shall comply with the Schedule or
\n Schedules established by it and approved by the Owner. With respect to
\n any portion of the Work for which a Schedule has not been established,
\n the Contractor shall commence such portion of the Work within three (3)
\n days of the date on which the Owner directs such commencement and shall
\n thereafter prosecute and complete the same with all due diligence or as
\n otherwise directed by the Owner. Neither the scheduling information
\n submitted by the Contractor or its Subcontractors, the acceptance or
\n approval thereof by the Owner nor the establishment or implementation
\n of, or failure to establish or implement, a Schedule by the Owner shall
\n relieve the Contractor of its obligation to perform and complete the
\n Work in a timely manner or to otherwise perform in accordance with the
\n Contract Documents.<\/p>\n
8.2.3 The Contractor shall update the Schedule every two weeks to
\n reflect any authorized changes in the Contract Time and <\/p>\n
9<\/p>\n
shall provide a chart showing the progress of each separate segment of
\n the Work and any new projected completion date(s).<\/p>\n
8.2.4 Float or slack time associated with any one chain of
\n activities is defined as the amount of time between earliest start
\n date and latest start date or between earliest finish date and
\n latest finish date for such activities, as set forth in an approved
\n Schedule (assuming the critical path method is used), including any
\n revision or updates thereto. Float or slack time is not for the
\n exclusive use or benefit of either the Owner or the Contractor.
\n However, if float time associated with any chain of activities is
\n expended but not exceeded by any actions attributable to the Owner,
\n the Contractor shall not be entitled to an extension in the Contract
\n Time.<\/p>\n
8.3 DELAYS, EXTENSIONS OF TIME AND OVERTIME.<\/p>\n
8.3.1 If the Contractor is delayed at any time in progress of the
\n Work solely by (i) an act or neglect of the Owner or Architect, an
\n employee of either or a separate contractor employed by Owner or
\n (ii) by a Force Majeure Event, then the Contract Time may be
\n extended as is necessary to reflect the length of the delay actually
\n and directly caused by such occurrence; provided, however, that no
\n claim by the Contractor for an extension of time for any such delay
\n shall be considered unless made in accordance with Paragraph 13.1
\n below. For the purposes of the Contract, the term “Force Majeure
\n Event” shall mean fire, flood, earthquake, strike (provided the
\n strike does not arise from the actions or inactions of Contractor,
\n any Subcontractor, and\/or any of their respective agents,
\n representatives, suppliers or any other person or entity directly or
\n indirectly employed, utilized and\/or controlled by any of them) or
\n other Act of God not caused or permitted by Contractor and which
\n could not have been anticipated by Contractor. The Contractor shall,
\n in the event of any occurrence likely to cause a delay, cooperate in
\n good faith with the Architect and Owner to minimize and mitigate the
\n impact of any such occurrence and do all things reasonable under the
\n circumstances to achieve this goal. Contractor understands and
\n agrees that, regardless of the cause of any delay and whether or not
\n any extension of time may be agreed to in connection therewith,
\n Contractor shall continue to prosecute all Work not affected by said
\n delay and, with respect to such portion or portions of the Work as
\n may be so affected, Contractor shall use its best efforts to
\n minimize the effect of said delay. The foregoing terms and
\n provisions of this Paragraph 8.3.1 notwithstanding, in no event and
\n under no circumstances will the Contract Time be extended in the
\n event of any delay caused by (i) an act or neglect or the fault of
\n Contractor, any Subcontractor, any Sub-subcontractor and\/or any of
\n their respective agents, employees, representatives, suppliers or
\n any other person or entity directly or indirectly employed, utilized
\n and\/or controlled by any of them, (ii) intentionally omitted, (iii)
\n delays in transportation, (iv) lack of supplies or unavailability of
\n specific mechanical elements or (v) labor disputes within the work
\n force of Contractor, any Subcontractor, and\/or any of their
\n respective agents, representatives, suppliers or any other person or
\n entity directly or indirectly employed, utilized and\/or controlled
\n by any of them unless such labor disputes are not the result of the
\n actions or inactions of Contractor, any Subcontractor, and\/or any of
\n their respective agents, representatives, suppliers or any other
\n person or entity directly or indirectly employed, utilized and\/or
\n controlled by any of them.<\/p>\n
8.3.2 No change in the Work, whether by way of alteration or
\n addition to the Work, shall be the basis of an extension in the
\n Contract Time unless and until such alteration or addition has been
\n authorized by a Change Order executed and issued in accordance with
\n and in strict compliance with the requirements of the Contract
\n Documents. Any claim for increased cost for delay shall be asserted
\n in accordance with the provisions of Paragraph 13.1 unless the time
\n is extended in writing by the Owner. This requirement is of the
\n essence of the Contract Documents. Accordingly, no course of conduct
\n or dealings between the parties, nor express or implied acceptance
\n of alterations or additions to the Work, and no claim that the Owner
\n has been unjustly enriched by an alteration or addition to the Work,
\n whether or not there is in fact any such unjust enrichment, shall be
\n the basis for any claim to an increase in the Contract Sum or an
\n extension in the Contract Time.<\/p>\n
8.3.3 Notwithstanding any other term or provision of the Contract
\n to the contrary, if Contractor fails to achieve Substantial
\n Completion of any phase of the Work on or before the expiration of
\n the Contract Time for any reason other than the occurrence of a
\n Force Majeure Event, Contractor shall pay to Owner the following as
\n liquidated delay damages the sum of $____N\/A______ for each calendar
\n day for which Substantial Completion shall not have occurred on or
\n before the expiration of <\/p>\n
10<\/p>\n
the Contract Time (“Delay Damages”) (if this Agreement if for
\n continuing (on-call) Work on multiple projects or continuing (on-call)
\n services, the Delay Damages shall be as set forth in the Owner
\n approved Work Authorization form). It is hereby expressly agreed by
\n Contractor that the Delay Damages to which Owner is entitled under
\n this Paragraph 8.3.3 are a reasonable forecast of just compensation
\n for the harm that would be caused by Contractor’s failure to achieve
\n Substantial Completion by the expiration of the Contract Time, but do
\n not compensate Owner for any other damages of any type or kind,
\n including without limitation any damages related to or in connection
\n with Contractor’s failure to fully and properly perform the Contract
\n Documents or any damages resulting from ______________ (if this
\n Agreement if for continuing (on-call) Work on multiple projects or
\n continuing (on-call) services, this information shall be as set forth
\n in the Owner approved Work Authorization form).<\/p>\n
8.3.4 All Delay Damages will be due and payable immediately upon
\n Owner’s demand therefor, and all Delay Damages that remain unpaid
\n shall bear interest from the date of demand until paid at the
\n maximum lawful rate, or if there is no applicable maximum lawful
\n rate, at the rate of 12% per annum. Owner shall have the right, but
\n not the obligation, to set off all Delay Damages against any amounts
\n due from Owner to Contractor, including without limitation any
\n retainage amounts.<\/p>\n
8.3.5 In addition to the Delay Damages, Owner shall at all times
\n be entitled to all of its remedies under the Contract Documents and
\n at law and in equity, including, without limitation, the recovery of
\n damages related to or in connection with Contractor’s failure to
\n fully and properly perform the Contract Documents or any damages
\n resulting from _________________ (if this Agreement if for
\n continuing (on-call) Work on multiple projects or continuing
\n (on-call) services, this information shall be as set forth in the
\n Owner approved Work Authorization form).<\/p>\n
8.3.6 Whenever the Work falls behind schedule due to the fault of
\n the Contractor, the Contractor shall, to the extent necessary to
\n meet said schedule, increase its labor force and\/or provide
\n overtime, extra shifts, Saturday, Sunday and\/or holiday work, and
\n shall have each Subcontractor do likewise, all at no additional cost
\n to or compensation from the Owner. Further, the Owner shall have the
\n right to deduct or offset against any amounts then or thereafter due
\n to the Contractor, or to be reimbursed by the Contractor for, any
\n additional costs the Owner may incur as a direct result of said
\n increase in labor force or overtime, extra shifts, Saturday, Sunday
\n and\/or holiday work.<\/p>\n
8.3.7 The Owner may, in its sole discretion and for any reason,
\n direct the Contractor to accelerate the schedule of performance by
\n providing overtime, extra shifts, Saturday, Sunday and\/or holiday
\n work and\/or by having all or any Subcontractors or
\n Sub-subcontractors designated by the Owner provide overtime, extra
\n shifts, Saturday, Sunday and\/or holiday work.<\/p>\n
8.3.7.1 In the event of overtime, extra shifts, Saturday,
\n Sunday or holiday work by the Contractor’s own forces
\n pursuant to this Subparagraph 8.3.7, the Owner’s sole and
\n exclusive obligation to the Contractor (except as
\n hereinafter provided) on account thereof shall be to
\n reimburse the Contractor for the direct cost to the
\n Contractor of the premium time (or shift differential for
\n any extra shifts) for all labor utilized by the Contractor
\n in such overtime, extra shifts, Saturday, Sunday or holiday
\n work (but not for the straight time costs of such labor),
\n together with any Social Security and state or Federal
\n unemployment insurance taxes in connection with such
\n premium time (or shift differential for any extra shifts).<\/p>\n
8.3.7.2 In the event of overtime, extra shifts, Saturday,
\n Sunday or holiday work by a Subcontractor pursuant to this
\n Subparagraph 8.3.7, the Owner’s sole and exclusive
\n obligation to the Contractor (except as hereinafter
\n provided) on account thereof shall be to reimburse the
\n Contractor for the direct cost to the Subcontractor for the
\n premium time (or shift differential for any extra shifts)
\n of all labor utilized in such overtime, extra shifts,
\n Saturday, Sunday or holiday work (but not for the straight
\n time costs of such labor), together with any Social
\n Security and state or Federal unemployment insurance taxes,
\n benefits and mark up in connection with such premium time.<\/p>\n
11<\/p>\n
8.4 TEMPORARY SUSPENSION OF WORK. The Owner shall have the authority to
\nsuspend the Work, in whole or in part, for such periods and such reasons as
\nit may deem necessary or desirable, in its sole discretion, including without
\nlimitation: (a) unsuitable weather; (b) other conditions considered
\nunfavorable for the suitable prosecution of the Work; (c) special events
\nand\/or (d) other conditions considered adverse to the best interests of the
\nOwner. Any such suspension shall be in writing to the Contractor. The
\nContractor shall immediately obey such orders of the Owner and shall not
\nresume the Work until so ordered in writing by the Owner. The Contractor
\nshall be entitled to an extension of the Contract Time not to exceed the
\nlength of time that the Work was suspended provided the claim is submitted in
\naccordance with Paragraph 13.1 and the suspension is not due to an act or
\nomission of the Contractor, any Subcontractor or Sub-subcontractor.<\/p>\n
ARTICLE 9
\n PAYMENTS AND COMPLETION<\/p>\n
9.1 APPLICATION FOR PAYMENT; PASSAGE OF TITLE.<\/p>\n
9.1.1 The “Payment Application Date” shall be that day of each
\n Calendar month designated in Section 7.1 of the Agreement when the
\n Contractor shall deliver the “Application for Payment”, as hereinafter
\n defined, to the Owner.<\/p>\n
9.1.2 The “Application for Payment” shall be an invoice prepared
\n by the Contractor and submitted to the Owner in accordance with the
\n Contract Documents. It shall show in detail all monies properly
\n payable to the Contractor in accordance with the Approved Schedule
\n of Values, including those items of labor, materials and equipment
\n used or incorporated in the Work (and, if the Owner has agreed in
\n advance in writing, suitably stored at the Job Site) through and
\n including the Payment Application Date. The Application for Payment
\n shall have, as attachments, (a) conditional mechanics’ lien releases
\n from the Contractor and all applicable Subcontractors,
\n Sub-subcontractors and suppliers with respect to materials supplied
\n and services provided for which current payment is requested, (b)
\n unconditional mechanics’ lien releases from the Contractor and all
\n applicable Subcontractors, Sub-subcontractors and suppliers with
\n respect to materials supplied and services provided for which
\n payment by the Owner was made pursuant to the previous Application
\n for Payment (provided that if a required payment has not been made
\n by Owner pursuant to the terms of this Agreement for any previous
\n month, Contractor shall attach conditional lien releases from the
\n Contractor and all applicable Subcontractors, Sub-subcontractors and
\n suppliers for which payment has not been made pursuant to this
\n Agreement and, upon receipt of the required payment, Contractor
\n shall immediately deliver to Owner unconditional mechanics’ lien
\n releases) and (c) such other evidence of performance of the Work,
\n the costs thereof and payment therefor as the Owner may deem
\n necessary or desirable. The submission of the foregoing waivers and
\n other evidence shall be express conditions precedent to Owner’s
\n obligation to make payment and to Contractor’s entitlement to
\n payment. All such mechanics’ lien releases shall be subject to the
\n approval of the Owner and shall comply with the laws of the state
\n where the Project is located, as amended from time to time. The date
\n of coverage and total dollar amount of the mechanics’ liens released
\n shall be provided on all such releases.<\/p>\n
9.1.3 The Contractor warrants that title to all Work, materials
\n and equipment covered by an Application for Payment shall pass to
\n the Owner, free and clear of all liens, claims, security interests
\n or encumbrances, upon the sooner occurrence of: (a) the delivery of
\n any such materials or equipment to the Job Site and incorporation
\n into the Work; or (b) the tender of payment of the applicable
\n Application for Payment by the Owner to the Contractor; and that no
\n Work, materials or equipment covered by an Application for Payment
\n shall have been acquired, whether by the Contractor or by any
\n Subcontractor or Sub-subcontractor, subject to an agreement under
\n which an interest therein or an encumbrance thereon is retained by
\n the seller or otherwise imposed by the Contractor or such other
\n person. The passage of title to the Owner as provided herein shall
\n not alter or limit the obligations and duties of the Contractor with
\n respect to the Work and the materials or equipment incorporated
\n therein or used in connection therewith as set forth in the Contract
\n Documents.<\/p>\n
9.2 APPROVALS OF APPLICATIONS FOR PAYMENT.<\/p>\n
9.2.1 If the Contractor has submitted an Application for Payment in
\n the manner prescribed in the Contract Documents, the Owner shall, with
\n reasonable promptness, approve the same (or such portions thereof
\n covering amounts it determines to be properly due) or shall state in <\/p>\n
12<\/p>\n
writing its reasons for withholding its approval (whether of all or a
\n part).<\/p>\n
9.2.2 The Owner’s approval of an Application for Payment shall
\n not constitute a representation by the Owner that the conditions
\n precedent to the Contractor’s entitlement to payment have been
\n fulfilled, nor shall approval of an Application for Payment by the
\n Owner be deemed a representation by the Owner: (a) that it has made
\n exhaustive or continuous on-site inspections to check the quality or
\n quantity of the Work; (b) that it has reviewed the construction
\n means, methods, techniques, sequences, coordination or procedures,
\n or the cleanliness of the Job Site, or the safety precautions and
\n programs, in connection with the Work; (c) that it has made any
\n examination to ascertain how or for what purpose the Contractor has
\n used the monies previously paid on account of the Contract Sum.<\/p>\n
9.2.3 No approval of an Application for Payment, progress payment
\n or any beneficial, partial payment or any partial or entire use or
\n occupancy of the Project by the Owner shall constitute an acceptance
\n of any Work which is not in accordance with the Contract Documents;
\n and regardless of approval of an Application for Payment by the
\n Owner, the Contractor shall remain totally obligated and liable for
\n the performance of the Work in strict compliance with the Contract
\n Documents.<\/p>\n
9.2.4 Subject to the Owner’s rights to deduct, offset or withhold
\n as set forth in these General Conditions, after the Owner has
\n approved an Application for Payment, in whole or in part, it shall
\n make payment of the amount approved to the Contractor as provided in
\n the Contract Documents.<\/p>\n
9.3 PAYMENTS WITHHELD; OWNER’S RIGHT TO MAKE DIRECT PAYMENTS FOR WORK;
\n FAILURE OF PAYMENT.<\/p>\n
9.3.1 The Owner may withhold its approval of an Application for
\n Payment, in whole or in part, or nullify the whole or any part of an
\n approval previously given, if Owner reasonably determines that the
\n Application for Payment covers portions of the Work which have not, in
\n fact, been completed, or that it includes amounts for claims
\n allegedly made but not actually made (or subsequently withdrawn),
\n and\/or for which payment is not then due or if, and to the extent that
\n Owner deems it necessary or desirable, to protect itself against
\n loss or damage due to: (a) defective Work not remedied; (b)
\n Subcontractor or Sub-subcontractor or other third-party claims or
\n liens or reasonable evidence indicating such probable third-party
\n claims or liens; (c) failure or alleged failure of the Contractor
\n to make payments to Subcontractors (or of Subcontractors to make
\n payments to Sub-subcontractors) as required by the Contract Documents,
\n or failure to provide lien waivers; (d) inability, or reasonable doubt
\n as to the ability, of the Contractor to complete the Work within the
\n Contract Time, for the unpaid balance of the Contract Sum or within the
\n estimates prepared by the Contractor and submitted to and approved
\n by the Owner; (e) damage to the Owner or a Separate Contractor;
\n (f) unsatisfactory prosecution of the Work by the Contractor, its
\n Subcontractors or Sub-subcontractors; (g) failure of the Contractor to
\n maintain the Job Site in a clean and safe condition; (h) failure of the
\n Contractor to meet any other monetary obligation imposed upon it
\n pursuant to the Contract Documents or (i) failure of the Contractor
\n to comply with any other provision of the Contract Documents.<\/p>\n
9.3.2 The Owner, after giving the Contractor notice, may make
\n payments on account of labor, materials and\/or equipment for the Work
\n directly to any or all of the Subcontractors, Sub-subcontractors or
\n persons entitled to the same in lieu of paying the Contractor therefor
\n or make joint payment to any such person and the Contractor. Any
\n amounts so paid shall be credited against the Contract Sum. No such
\n payment shall create any relationship between the recipient thereof
\n and the Owner, nor any duty on the part of the Owner. The Contractor
\n shall cooperate with the Owner to facilitate any such direct payments
\n and shall provide such evidence as the Owner may request for purposes
\n of determining any amount to be so paid. If the Owner elects to make
\n such payments as a result of a failure on the part of the Contractor to
\n perform in accordance with the Contract, or as a result of a request
\n from the Contractor that the Owner make such payments, then the Owner
\n may deduct the amount of its administrative costs incurred in making
\n said such payments from the Contract Sum or render an invoice to
\n the Contractor for such administrative costs, which invoice the
\n Contractor shall promptly pay.<\/p>\n
9.3.3 If the Owner does not pay the Contractor within seven days,
\n after the date established in the Contract Documents the amount
\n certified by the Architect, for reasons other than a default by
\n Contractor or the Work in question has been rejected by any
\n governmental authority, the Owner, or any lender of the Owner, then
\n the Contractor may, upon seven additional days written notice to the
\n Owner, stop the Work until payment of the amount owing has been
\n received. The Contract Time shall be extended <\/p>\n
13<\/p>\n
appropriately and the Contract Sum shall be increased by the amount
\n of the Contractor’s reasonable costs of shut-down, delay and
\n start-up, which shall be accomplished as provided in Article 8.
\n Notwithstanding the foregoing, the Contractor may not stop Work
\n during the pendency of a bona fide dispute between Owner and
\n Contractor, provided any sums in dispute claimed by the Contractor
\n are placed in escrow or the Owner’s lender, if any, agrees to
\n withhold and pay said disputed sums when the dispute is resolved.<\/p>\n
9.4 SUBSTANTIAL COMPLETION AND FINAL PAYMENT.<\/p>\n
9.4.1 On the Date of Substantial Completion, the Contractor shall
\n prepare and submit to the Owner a list of items to be completed
\n and\/or corrected (“punch-list” items) and its final bill, including
\n itemized projected amounts for any portions of the Work not yet
\n completed. The failure to include any items on such “punch-list”
\n shall not alter the responsibility of the Contractor to complete
\n and\/or correct the Work in accordance with the Contract Documents.
\n When the Owner, on the basis of an inspection, confirms the
\n notification from the Contractor that the Work is Substantially
\n Completed or, without being notified by the Contractor, determines
\n that the Work is Substantially Completed, the Owner shall prepare
\n and deliver to the Contractor a Certificate of Substantial
\n Completion which may state the responsibilities of the Owner and the
\n Contractor for maintenance, heat, utilities and insurance and shall
\n list the items determined by the Owner to require completion or
\n correction as applicable, and fix the time within which the
\n Contractor shall complete or correct the items listed and submit to
\n the Owner all documents and other matters required by the Contract
\n Documents to be submitted by the Contractor upon completion of the
\n Work. The Certificate of Substantial Completion shall constitute a
\n demand for a formal billing (including all costs, claims or fees for
\n any outstanding Change Orders, or any other matter which the
\n Contractor has not previously waived pursuant to the General
\n Conditions, and itemized projections for any incomplete Work), and
\n the Contractor shall be deemed conclusively to have waived the right
\n to payment of any such item, fee or cost of any kind not billed to
\n the Owner within thirty (30) days of delivery to the Contractor of
\n the Certificate of Substantial Completion. The issuance of the
\n Certificate of Substantial Completion shall not constitute a waiver
\n of any rights of the Owner, including without limitation the right
\n to those retainages permitted by the Contract Documents. If the
\n Contractor does not complete and\/or correct the “punch-list” items
\n listed in the Certificate of Substantial Completion within the time
\n fixed therein, the Owner shall have the right to accomplish the same
\n and deduct or offset all costs thereof against any amounts then or
\n thereafter due to the Contractor. If the amounts then or thereafter
\n due to the Contractor are not sufficient to cover such costs, the
\n Contractor shall pay the difference to the Owner. The Owner’s
\n decision as to the Date of Substantial Completion shall be final and
\n binding.<\/p>\n
9.4.2 Within a reasonable time following the Owner’s receipt of
\n written notification from the Contractor that the Work is ready for
\n final inspection and acceptance, and receipt of the final
\n Application for Payment, the Owner shall make such inspection and,
\n when the Work is found to be acceptable under the Contract Documents
\n and the Contract fully performed, shall approve the final
\n Application for Payment; provided, however, that neither the final
\n payment nor any retention shall become due until the Contractor
\n submits to the Owner: (a) evidence of payment in a form approved by
\n the Owner, that all payrolls, bills for materials, supplies and
\n equipment and other indebtedness connected with the Work for which
\n the Owner or its property might in any way be responsible have been
\n paid in full or otherwise satisfied; (b) consent of sureties, if
\n any, to final payment; (c) all Contract Documents (except one set
\n thereof to be retained by the Contractor), including a complete set
\n of as-built and record documents (as defined in and to the extent
\n required by the Specifications); (d) such other data as the Owner
\n reasonably may require establishing payment or satisfaction of all
\n obligations of the Contractor in connection with the Work including
\n receipts of final satisfaction and releases and waivers of liens and
\n releases of any and all claims by the Contractor, Subcontractors and
\n Sub-subcontractors, conforming in all material respects with the
\n laws of the state where the Project is located and evidencing
\n performance of the Work in accordance with the Contract Documents;
\n (e) a release of the Owner and its insurers from and against any
\n claims under the insurance required to be provided by the Owner
\n hereunder (except to the extent of any claims theretofore timely
\n filed which are owing but unpaid) and a release of the Owner from
\n and against any claims between the Contractor and a separate
\n contractor; (f) any governmental certificates required by the
\n Contract Documents or otherwise to evidence compliance of the
\n Contractor and the Work with applicable laws, ordinances, rules,
\n codes and regulations and the Contract Documents and (g) warranties,
\n guarantees, assignments thereof, and maintenance or other manuals,
\n required by the <\/p>\n
14<\/p>\n
Specifications in the forms approved by the Owner, in favor of the
\n Owner and such other persons as the Owner may direct. The submission
\n of all of the foregoing is an express condition precedent to
\n Contractor’s entitlement to final payment.<\/p>\n
9.4.3 The making of final payment shall not constitute a waiver
\n of any claims or rights by the Owner.<\/p>\n
9.4.4 The acceptance of final payment by Contractor shall
\n constitute a waiver of all claims by the Contractor and shall
\n constitute a general release of the Owner and the Owner’s
\n Representative by the Contractor.<\/p>\n
9.4.5 If at any time any Subcontractor or Sub-subcontractor
\n refuses to furnish any release, satisfaction or waiver of lien
\n required at any time by the Owner under Paragraphs 9.1, 9.3 or 9.4,
\n or files a claim of lien against the Owner or any of the Owner’s
\n property, the Contractor shall, if requested by the Owner and at the
\n Contractor’s expense, furnish and record a Mechanic’s Lien Release
\n Bond (separate and apart from any other bond provided by the
\n Contractor hereunder) that is in full compliance with the
\n then-current laws, rules, regulations and ordinances of the state
\n and the locality where the Project is located. If any Subcontractor
\n or Sub-subcontractor serves a Stop Notice (bonded or otherwise) on
\n Owner, Contractor shall, if requested by Owner and at Contractor’s
\n expense, furnish a Stop Notice Release Bond (separate and apart from
\n any other bond provided by the Contractor hereunder) that is in full
\n compliance with the then-current laws, rules, regulations and
\n ordinances of the state and the locality where the Project is
\n located. The Contractor authorizes the Owner, and shall cause its
\n Subcontractors and Sub-subcontractors to authorize the Owner, to
\n check directly with any suppliers of labor and material with respect
\n to any item chargeable to the Owner’s property, to confirm balances
\n due and to obtain sworn statements and waivers of lien, all if the
\n Owner so elects. If any lien remains unsatisfied after all payments
\n are made to the Contractor, the Contractor shall reimburse the Owner
\n upon Owner’s demand the full amount of all monies that the Owner may
\n be compelled to pay in discharging such lien, including all costs
\n and attorneys’ fees.<\/p>\n
9.5 BENEFICIAL USE AND OCCUPANCY; PARTIAL SUBSTANTIAL COMPLETION.<\/p>\n
9.5.1 The Owner and its lessees and separate contractors may
\n occupy or use any completed or partially completed portion of the
\n Work at any stage of construction regardless of whether the Contract
\n Time has expired (hereinafter sometimes referred to as “Partial
\n Occupancy”). Such Partial Occupancy may commence whether or not the
\n applicable portion of Work is substantially complete.<\/p>\n
9.5.2 In the event of Partial Occupancy, the Contractor shall
\n promptly secure endorsement from its insurance carrier(s), consent
\n from its surety(ies), if any, and consent from public authorities
\n having jurisdiction over the Work permitting Partial Occupancy.<\/p>\n
9.5.3 In the event of Partial Occupancy before substantial
\n Completion as provided above, the Contractor shall cooperate with
\n the Owner in making available for the Owner’s use and benefit such
\n building services as heating, ventilating, cooling, water, lighting,
\n telephone, elevators and security for the portion or portions to be
\n occupied, and if the work required to furnish such services is not
\n entirely completed at the time the Owner desires to occupy the
\n aforesaid portion or portions, the Contractor shall make every
\n reasonable effort to complete such Work or make temporary provisions
\n for such Work as soon as possible so that the aforementioned
\n building services may be put into operation and use. <\/p>\n
9.5.4 In the event of Partial Occupancy prior to Substantial
\n Completion, mutually acceptable arrangements shall be made between
\n the Owner and Contractor in respect of the operation and cost of
\n necessary security, maintenance and utilities, including heating,
\n ventilating, cooling, water, lighting and telephone services and
\n elevators. The Owner shall assume proportionate and reasonable
\n responsibility for the cost of the above services reduced by any
\n savings to contractor for such services realized by reason of
\n Partial Occupancy. Further, mutually acceptable arrangements shall
\n be made between the Owner and Contractor in respect of insurance and
\n damage to the Work. Contractor’s acceptance of arrangements proposed
\n by Owner in respect of such matters shall not be unreasonably
\n withheld, delayed or conditioned.<\/p>\n
9.5.5 In each instance, when the Owner elects to exercise its right
\n of Partial Occupancy as described herein, Owner will give Contractor
\n and Architect advance written notice of its election to take the
\n portion or portions involved, and immediately prior to Partial
\n Occupancy, the Owner, Contractor and Architect shall jointly inspect
\n the area to be occupied or portion of the Work to be used to
\n determine and record the conditions of the same.<\/p>\n
15<\/p>\n
9.5.6 It shall be understood, however, that Partial Occupancy shall
\n not: (i) constitute acceptance of any Work, (ii) relieve the
\n Contractor for responsibility for loss or damage because of or
\n arising out of defects in, or malfunctioning of, any Work, material
\n or equipment, nor from any other unfulfilled obligations or
\n responsibilities under the Contract Documents or (iii) commence any
\n warranty period under the Contract Documents; provided that
\n Contractor shall not be liable for ordinary wear and tear resulting
\n from such Partial Occupancy and provided further that warranty of
\n the portions of the Work and systems utilized only for that portion
\n of the Work receiving Partial Occupancy shall commence on the date
\n of Partial Occupancy.<\/p>\n
9.5.7 Subject to the terms and conditions provided herein, if the
\n Contractor claims that delay or additional cost is involved because
\n of Partial Occupancy by the Owner, Contractor shall make such Claim
\n as provided elsewhere in the Contract Documents.<\/p>\n
ARTICLE 10
\n PROTECTION OF PERSONS AND PROPERTY<\/p>\n
10.1 RESPONSIBILITY FOR SAFETY AND HEALTH.<\/p>\n
10.1.1 The Contractor shall be responsible for initiating,
\n maintaining and supervising safety and anti-substance abuse
\n precautions and programs in connection with the Work, and shall
\n provide all protection to prevent injury to all persons involved in
\n any way in the Work and all other persons, including without
\n limitation, the employees, agents, guests, visitors, invitees and
\n licensees of the Owner who may visit or be affected thereby. These
\n precautions shall include, but in no event be limited to: the
\n posting of danger signs and personal notification to all affected
\n persons of the existence of a hazard of whatever nature; the
\n furnishing and maintaining of necessary traffic control barricades
\n and flagman services; the use, or storage, removal and disposal of
\n required explosives or other hazardous materials only under the
\n supervision of qualified personnel and after first obtaining
\n permission of all applicable governmental authorities; and the
\n maintenance of adequate quantities of both hose and operable fire
\n extinguishers at the Job Site. The Contractor shall set forth in
\n writing its safety and anti-substance abuse precautions and programs
\n in connection with the Work and, if requested by the Owner, submit
\n the same to the Owner for review. The Owner may, but shall not be
\n obligated to, make suggestions and recommendations to the Contractor
\n with respect thereto.<\/p>\n
10.1.2 All Work and not design (unless Contractor, any
\n Subcontractor, and\/or any of their respective agents,
\n representatives, suppliers or any other person or entity directly or
\n indirectly employed, utilized and\/or controlled by any of them
\n prepared the design), whether performed by the Contractor, its
\n Subcontractors or Sub-subcontractors, or anyone directly or
\n indirectly employed by any of them, and all equipment, appliances,
\n machinery, materials, tools and like items incorporated or used in
\n the Work, shall be in compliance with, and conform to: (a) all
\n applicable laws, ordinances, rules, regulations and orders of any
\n public, quasi-public or other governmental authority relating to the
\n safety of persons and their protection against injury, specifically
\n including, but in no event limited to, the Federal Occupational
\n Safety and Health Act of 1970, as amended, and all rules and
\n regulations now or hereafter in effect pursuant to said Act; and (b)
\n all codes, rules, regulations and requirements of the Owner and its
\n insurance carriers relating thereto. In the event of conflicting
\n requirements, the more stringent shall govern.<\/p>\n
10.1.3 The Contractor shall designate a responsible member of its
\n organization at the Job Site as the Project Safety Officer, whose
\n duties it shall be to enforce the Contractor’s safety and
\n anti-substance abuse programs, to assure compliance with
\n Subparagraph 10.1.2 and to prevent accidents. This person shall be
\n the Contractor’s Project Manager unless otherwise designated in
\n writing by the Contractor and approved by the Owner. The Contractor
\n shall further cause each of its Subcontractors and
\n Sub-subcontractors to designate a responsible supervisory
\n representative to assist the Contractor’s Project Safety Officer
\n representative in the performance of his or her duties as aforesaid.<\/p>\n
10.1.4 Should the Contractor fail to provide a safe area for the
\n performance of the Work or any portion thereof, the Owner shall have
\n the right, but not the obligation, to suspend Work in the unsafe
\n area. All costs of any nature (including overtime pay) resulting
\n from the suspension, by<\/p>\n
16<\/p>\n
whomsoever incurred shall be borne by the Contractor.<\/p>\n
10.1.5 The Contractor shall provide to each worker on the Job Site
\n the proper safety equipment for the duties being performed by that
\n worker and will not permit any worker on the Job Site who fails or
\n refuses to use the same. The Owner shall have the right, but not the
\n obligation, to order the Contractor to send a worker home for the
\n day or to discharge a worker for his or her failure to comply with
\n safe practices or anti-substance abuse policies, with which order
\n the Contractor shall promptly comply.<\/p>\n
10.1.6 The Contractor shall indemnify the Owner from and against any
\n and all liability, public or private, penalties, contractual or
\n otherwise, losses, damages, costs, attorneys’ fees, expenses,
\n causes of action, claims or judgments resulting either in whole or
\n in part from any failure of the Contractor, its Subcontractors or
\n Sub-subcontractors or anyone directly or indirectly employed by
\n any of them or for whose acts any of them may be liable, to comply
\n with the provisions of Paragraph 10.1. The Contractor shall not
\n be relieved of its responsibilities under this Paragraph 10.1
\n should the Owner act or fail to act pursuant to its rights
\n hereunder, nor shall the Owner thereby assume, nor be deemed to
\n have assumed, any responsibilities otherwise imposed upon the
\n Contractor by this Contract in any manner whatsoever.<\/p>\n
10.2 PROTECTION OF WORK AND PROPERTY; RESPONSIBILITY FOR LOSS.<\/p>\n
10.2.1 The Contractor shall, throughout the performance of the
\n Work, maintain adequate and continuous protection of all Work
\n and temporary facilities against loss or damage from whatever
\n cause, shall protect the property of the Owner and third parties
\n from loss or damage from whatever cause arising out of the
\n performance of the Work and shall comply with the requirements
\n of the Owner and its insurance carriers and with all applicable
\n laws, codes, rules and regulations with respect to the
\n prevention of loss or damage to property as a result of fire or
\n other hazards. The Owner may, but shall not be required to,
\n make periodic patrols of the Job Site as a part of its normal
\n security program. In such event, however, the Contractor shall not
\n be relieved of its aforesaid responsibilities.<\/p>\n
10.2.2 Until final acceptance of the Work by the Owner pursuant to
\n Paragraph 9.4 (unless and to the extent otherwise set forth in a
\n Certificate of Substantial Completion) the Contractor shall
\n have full and complete charge and care of and, except as otherwise
\n provided in this Subparagraph 10.2.2, shall bear all risk of loss
\n of, and injury or damage to, the Work or any portion thereof
\n (specifically including Owner-furnished supplies, equipment or
\n other items to be utilized in connection with, or incorporated
\n in, the Work) from any cause whatsoever. The Contractor shall
\n rebuild, repair, restore and make good all losses of, and
\n injuries or damages to, the Work or any portion thereof before
\n final acceptance of the Work. Such rebuilding, repair or
\n restoration shall be at the Contractor’s sole cost and expense
\n unless the loss, injury or damage requiring such rebuilding,
\n repair or restoration: (a) is directly due to errors in the
\n Contract Documents which were not discovered by the Contractor and
\n which the Contractor could not have discovered through the
\n exercise of due diligence; (b) is caused by the Owner (unless (i)
\n the Contractor has waived its rights of subrogation against the
\n Owner on account thereof as provided in the Contract Documents,
\n or (ii) such loss or damage would be covered by any policy or
\n policies of insurance which the Contractor is required to
\n maintain hereunder, whether the Contractor actually maintains
\n such insurance or not, or (iii) is otherwise covered by a policy
\n or policies of insurance maintained by the Contractor, whether
\n or not required hereunder); or (c) is caused by a hazard against
\n which the Owner is required to insure under the provisions of
\n Article 11 hereof; provided, however, that if the loss, injury or
\n damage would not have occurred but for an act or omission of the
\n Contractor, any of its Subcontractors of Sub-subcontractors or
\n anyone directly or indirectly employed by any of them or for whose
\n acts any of them may be liable, the rebuilding, repair or
\n restoration shall be at the Contractor’s cost and expense to the
\n extent of the deductible on said insurance.<\/p>\n
10.3 EMERGENCIES. In any emergency affecting the safety of persons or
\nproperty, or in the event of a claimed violation of any federal or state
\nsafety or health law or regulation, arising out of or in any way connected
\nwith the Work or its performance, the Contractor shall act immediately to
\nprevent threatened damage, injury or loss or to remedy said violation,
\nwhichever is applicable, failing which the Owner may immediately take
\nwhatever action it reasonably deems necessary, including, but not limited to,
\nsuspending the Work as provided in Paragraph 8.4. The Owner may deduct or
\noffset any and all costs or expenses of whatever nature, including attorneys’
\nfees, paid or incurred by the Owner in taking such option against any sums
\nthen or thereafter due to the Contractor. The Contractor shall indemnify the
\nOwner against any and all costs of or expenses incurred pursuant to this
\nParagraph 10.4. If the Contractor shall be entitled to any additional <\/p>\n
17<\/p>\n
compensation or extension of time claimed on account of emergency work not
\ndue to the fault or neglect of the Contractor or its Subcontractors or
\nSub-subcontractors, it shall be handled as a claim as provided in Article 13.<\/p>\n
10.4 CLEANUP. The Contractor shall at all times keep the Job Site clean
\nand free from accumulation of waste materials or rubbish (including, without
\nlimitation, hazardous waste) caused by or during the performance of the Work
\nand shall continuously throughout performance of the Work remove and dispose
\nof all such materials from the Job Site and the Project. The Owner may
\nrequire the Contractor to comply with such standards, means and methods of
\ncleanup, removal or disposal as the Owner may make known to the Contractor.
\nIn the event the Contractor fails to keep the Job Site clean and free from
\nsuch waste or rubbish, or to comply with such standards, means and methods,
\nthe Owner may take such action and offset any and all costs or expenses of
\nwhatever nature paid or incurred by the Owner in undertaking such action
\nagainst any sums then or thereafter due to the Contractor. The Contractor
\nshall notify the Owner in advance of the generation, importation, storage,
\ntransportation, excavation or disposal, of any hazardous waste, toxic
\nmaterials to contaminants of any type in connection with the Project.<\/p>\n
10.5 OWNER’S STANDARDS. The Owner reserves the right, but assumes no
\nduty, to establish and enforce standards, and to change the same from time to
\ntime, for the protection of persons and property, with which the Contractor
\nshall comply, and to review the efficiency of all protective measures taken
\nby the Contractor. The exercise of or failure to exercise any or all of these
\nacts by the Owner shall not relieve the Contractor of its duties and
\nresponsibilities under this Contract, and the Owner shall not thereby assume,
\nnot be deemed to have assumed, any such duties or responsibilities of the
\nContractor.<\/p>\n
ARTICLE 11
\n INSURANCE<\/p>\n
11.1 INSURANCE PROVIDED BY OWNER. The contractor, its subcontractors and
\nsub-subcontractors hereby waive all rights which they, or any of them, may at
\nany time, have against the Owner, the Owner’s Representative, their respective
\nparent companies and partnerships, the subsidiary, related and affiliated
\ncompanies and partnerships of each and the officers, directors, agents,
\nemployees, partners, and assigns of each, for damages caused by fire or other
\nperils to the extent covered by the insurance provided by the Owner (but not
\ntheir entitlement to any proceeds thereof).<\/p>\n
11.2 CONTRACTOR’S INSURANCE.<\/p>\n
11.2.1 Contractor shall, without in any way altering Contractor’s
\n liability under the Contract or applicable law, obtain, pay for and
\n maintain insurance for the coverages and amounts of coverage not
\n less than those set forth below in the Schedule of Insurance
\n Coverages (Paragraph 11.2) with insurers licensed to do business in
\n the jurisdiction in which the Project is located and shall provide
\n to Owner certificates issued by such insurance companies
\n satisfactory to Owner to evidence such coverage before any Work
\n commences at the job site. Such certificates shall provide that
\n there shall be no termination, nonrenewal, modification or
\n expiration of such coverage without thirty (30) days’ prior written
\n notice to Owner (except in the case of non-payment of premium, in
\n which case the certificate must require at least ten (10) days’
\n prior written notice to Owner before the coverage is terminated
\n (Contractor represents and warrants that it shall not default on
\n its obligation to make any premium payments). In the event of any
\n failure by Contractor to comply with the provisions of this
\n Paragraph 11.2, (i) Owner may, at its option, on notice to
\n Contractor, suspend the Contract for cause until there is full
\n compliance with this Paragraph 11.2 and\/or terminate the Contract
\n for cause or (ii) Owner may purchase such insurance at Contractor’s
\n expense, provided that Owner shall have no obligation to do so and
\n if Owner shall do so, Contractor shall not be relieved of or
\n excused from the obligation to obtain and maintain such insurance
\n amounts and coverages. Contractor shall provide to Owner a
\n certified copy of any and all applicable insurance policies upon
\n request of the Owner. Timely renewal certificates will be provided
\n to Owner as coverage renews.<\/p>\n
11.2.2 The Indemnitees shall be named as additional insureds on each
\n insurance policy required by this Article 11 (other than workers’
\n compensation insurance) through an endorsement thereto which
\n provides for no different coverage to the Indemnitees than to the
\n Contractor. The additional insured endorsements shall provide the
\n following: (i) that the coverages afforded the additional insureds
\n will be primary insurance for the additional insureds with respect
\n to claims arising out of operations performed by or on behalf of the
\n Contractor, (ii) that the coverages afforded the additional insureds
\n shall not exclude claims asserted by the Contractor’s employees,
\n (iii) that if the additional insureds have other insurance which is
\n applicable to a loss, such other insurance will be on an excess or <\/p>\n
18<\/p>\n
contingent basis, (iv) that the amount of the insurance company’s
\n liability under the insurance policy will not be reduced by the
\n existence of such other insurance and (v) that the additional
\n insureds will be given not less than thirty (30) days prior written
\n notice of the material modification or cancellation thereof (except
\n in the case of non-payment of premium, in which case the
\n endorsements must require at least ten (10) days’ prior written to
\n notice to the Indemnitees before the coverage is materially modified
\n or canceled (Contractor represents and warrants that it shall not
\n default on its obligation to make any premium payments). Before any
\n Work commences at the job site, Contractor shall provide to Owner
\n certificates of insurance satisfactory to Owner to evidence
\n Contractor’s compliance with the requirements of this Paragraph
\n 11.2.2, The Indemnitees shall not, by reason of their inclusion as
\n additional insureds or otherwise, have any liability for the
\n payments of any deductibles or premiums.<\/p>\n
11.2.3 Insurance of the types required of Contractor hereunder shall
\n be provided by all Subcontractors, or provided by Contractor on behalf
\n of all Subcontractors, to cover their operations performed under the
\n Contract Documents. Contractor shall be held responsible for any
\n modification in these insurance requirements as they apply to
\n Subcontractors. Contractor shall maintain Certificates of Insurance
\n from all Subcontractors, enumerating, among other things, the
\n waivers in favor of, and insured status of, the Indemnitees, as
\n required herein, and make them available to Owner upon request.<\/p>\n
11.2.4 In the event Contractor fails to obtain the required
\n certificates of insurance from any Subcontractor and a claim is made
\n or suffered, the Contractor shall indemnify, defend and hold
\n harmless Owner, Owner’s constituent partners, the parent companies
\n and affiliates of Owner and of any constituent partner, and
\n Architect and, to the extent applicable, their respective
\n shareholders, officers, directors, agents and employees parties from
\n any and all claims for which the required insurance would have
\n provided coverage. This indemnity obligation is in addition to any
\n other indemnity obligation provided in the Contract.<\/p>\n
11.2.5 The term “Subcontractor(s)” for the purposes of
\n this Article 11 shall include all Subcontractors and
\n Sub-subcontractors.<\/p>\n
11.3 SCHEDULE OF INSURANCE COVERAGES.<\/p>\n
11.3.1 WORKERS’ COMPENSATION.<\/p>\n
Workers’ Compensation Statutory Limits
\n Employer’s Liability $500,000<\/p>\n
The policy shall include a Waiver of Subrogation in favor of the
\n Indemnitees.<\/p>\n
11.3.2 COMMERCIAL GENERAL LIABILITY.<\/p>\n
Bodily Injury\/Property $1,000,000 each
\n Damage occurrence, or
\n (occurrence Basis) equivalent, subject to
\n a $2,000,000 general
\n aggregate applicable
\n to the Project<\/p>\n
This policy shall be on a form acceptable to Owner and shall include
\n the following coverages:<\/p>\n
11.3.2.1 Premises\/Operations<\/p>\n
11.3.2.2 Independent Contractors<\/p>\n
11.3.2.3 Completed Operations (This coverage shall be
\n renewed by the original insurance company or provided by
\n another insurance company so that coverage is maintained for
\n a period of not less than two years following the acceptance
\n of Contractor’s Work)<\/p>\n
11.3.2.4 Broad Form Contractual Liability specifically
\n in support of, but not limited to, the Indemnity sections of
\n the Contract<\/p>\n
11.3.2.5 Broad Form Property Damage<\/p>\n
11.3.2.6 Personal Injury Liability with employees and
\n contractual exclusions removed<\/p>\n
11.3.2.7 Delete Exclusions relative to Collapse,
\n Explosion and Underground Property Damage Hazards<\/p>\n
11.3.3 COMPREHENSIVE AUTOMOBILE LIABILITY.<\/p>\n
11.3.3.1 Bodily Injury
\n $1,000,000 per person
\n $1,000,000 per accident<\/p>\n
11.3.3.2 Property Damage
\n $1,000,000 per accident,
\n or equivalent<\/p>\n
19<\/p>\n
This policy shall be on a standard form written to cover all
\n owned, hired and non-owned automobiles.<\/p>\n
11.3.4 UMBRELLA EXCESS LIABILITY INSURANCE.<\/p>\n
Bodily Injury\/ $5,000,000 per occurrence
\n Property Damage $5,000,000 aggregate
\n (Occurrence Basis)<\/p>\n
This policy shall be written on an umbrella excess basis above
\n coverages as described in 11.3.1, 11.3.2 and 11.3.3 above. In addition,
\n the policy shall be endorsed to provide defense coverage obligations
\n and shall follow the form of the underlying coverages.<\/p>\n
11.3.5 BUILDER’S RISK INSURANCE. Contractor shall maintain, at its
\n sole expense, all-risk builder’s risk insurance as follows:<\/p>\n
11.3.5.1 Contractor shall carry completed value from
\n builder’s risk property insurance (subject to a deductible
\n per loss not to exceed $2,500.00) upon the entire Work for
\n 100% of the full replacement cost value thereof (100%
\n includes additional costs of architectural and engineering
\n services in the event of a loss). This policy shall include
\n the interests of the Owner and the other Indemnitees,
\n Contractor, and Subcontractors in the work as named
\n insureds, as their interests may appear, and shall be on an
\n “All Risk” basis for physical loss or damage including,
\n without limitation, fire, flood, earthquake, subsidence,
\n hail, theft, vandalism and malicious mischief and shall
\n include coverage for portions of the Work while it is
\n stored off the site or is in transit. This policy shall
\n provide, by endorsement or otherwise, that Contractor shall
\n be solely responsible for the payment of all premiums under
\n the policy, and that Owner and the other Indemnitees shall
\n have no obligation for the payment thereof, notwithstanding
\n that Owner and the other Indemnitees are named as insureds
\n under the policy. Any insured loss or claim of loss shall
\n be adjusted by the Owner and any settlement payments shall
\n be made payable to the Owner as trustee for the insureds,
\n as their interests may appear, subject to the requirements
\n of any applicable mortgage clause. Upon the occurrence of
\n an insured loss or claim of loss, monies received will be
\n held by Owner who shall make distribution in accordance
\n with an agreement to be reached in such event between Owner
\n and Contractor, If the parties are unable to agree between
\n themselves on the settlement of the loss, such dispute
\n shall be submitted to a court of competent jurisdiction to
\n determine ownership of the disputed amounts but the Work of
\n the Project shall nevertheless progress during such period
\n of dispute without prejudice to the rights of any party to
\n the dispute. The Contractor shall be responsible for any
\n loss within the deductible area of the policy.<\/p>\n
11.3.6 BROAD FORM BOILER AND MACHINERY INSURANCE. Contractor shall
\n maintain, at its sole expense, such boiler and machinery insurance as
\n may be required by the Contract Documents or by law.<\/p>\n
11.4 CONTRACTOR’S EQUIPMENT POLICY. Any such insurance policy covering
\nContractor’s or its Subcontractors’ or Sub-subcontractors’ equipment against
\nloss by physical damage shall include an endorsement waiving the insurer’s
\nright of subrogation against the Indemnitees. Such insurance shall be
\nContractor’s and its Subcontractors’ sole and complete means of recovery for
\nany such loss. Should Contractor or its Subcontractors choose to self-insure
\nthis risk, it is expressly agreed that the Contractor and its Subcontractors
\nhereby waive any claim for damage or loss to said equipment in favor of the
\nIndemnitees.<\/p>\n
11.5 RELEASE OF WAIVER–Contractor hereby releases, and shall cause its
\nSubcontractors to release, Owner and the other Indemnitees from any and all
\nclaims or causes of action whatsoever which Contractor and\/or its
\nSubcontractors might otherwise possess resulting in or from or in any way
\nconnected with any loss covered or which should have been covered by
\ninsurance, including the deductible portion thereof, maintained and\/or
\nrequired to be maintained by Contractor and\/or its Subcontractors pursuant to
\nthe Contract Documents.<\/p>\n
11.6 CLAIMS MADE POLICIES.. With respect to any of the insurance policies
\nprovided by Contractor pursuant to the Contract Documents which are “Claims
\nmade” policies, in the event that at any time such policies are canceled or
\nnot renewed, Contractor shall provide a substitute insurance policy(ies) with
\nterms and conditions and in amounts which comply with the terms of the
\nContract Documents and which provides for retroactive coverage to the date of
\ncancellation or non-renewal to fill any gaps in coverage which may exist due
\nto the cancellation or non-renewal of the prior “claims made” policies. With
\nrespect to all “claims made” policies which are renewed, Contractor shall
\nprovide coverage retroactive to the date of <\/p>\n
20<\/p>\n
commencement of the Work in said renewed policy. All said substitute or
\nrenewed “claims made” policies shall be maintained in full force and effect
\nfor the longer of (I) two (2) years from the date of completion of the Work
\nor (ii) as otherwise required by the Contract Documents. A certificate
\nevidencing continuation of such policies shall be submitted with the final
\nApplication of Payment as required by Article 9.1.2. Nothing herein shall
\naffect the continuing effectiveness of the indemnity clauses in the Contract
\nDocuments..<\/p>\n
11.7 INDEMNIFICATION. With the exception that this Paragraph 11.7 shall
\nin no event be construed to require indemnification by Contractor to a
\ngreater extent than permitted under the public policy of the state where the
\nProject is located, Contractor shall indemnify, defend (if required by Owner
\nand with Counsel selected by Owner), and hold Owner, and the Owner’s
\nRepresentative, the parent, subsidiary, related and affiliated companies or
\npartnerships of each and the officers, directors, agents, employees, partners
\nand assigns of each, harmless from and against any and all claims, demands,
\nsuits, judgments, losses or expenses of any nature whatsoever (including
\nactual attorney’s fees) (“Claims”) arising directly or indirectly, in whole
\nor in part, from or out of any:<\/p>\n
(a) Act or omission of Contractor, its officers, directors, agents,
\n employees, any contractor, subcontractor or subconsultant of any
\n tier, anyone directly or indirectly employed by any of them or
\n anyone for whose acts any of them may be liable;<\/p>\n
(b) Personal injury, including but not limited to, bodily injury,
\n emotional injury, sickness or disease, or death to persons,
\n including but not limited to any employees or agents of Contractor,
\n Owner or any independent contractor, subcontractor or
\n sub-subcontractor and\/or damage to property of anyone (including
\n loss of use thereof), caused or alleged to be caused in whole or in
\n part by any negligent act or omission of Contractor, or anyone
\n directly or indirectly employed or engaged by Contractor,
\n contracting or subcontracting by or under Contractor, or anyone or
\n whose acts Contractor may be liable, regardless of whether such
\n personal injury or damage is caused in part by a party indemnified
\n hereunder;<\/p>\n
(c) Penalties imposed on account of the violation of any law, order,
\n citation, rule, regulation, standard, ordinance or statute, caused
\n by the action or inaction of Contractor, anyone directly or
\n indirectly employed or engaged by Contractor or contracting or
\n subcontracting by or under Contractor or anyone for whose acts
\n Contractor may be liable;<\/p>\n
(d) Infringement of any patent, trademark, or copyright, or violation of
\n trade secret or other proprietary right by any structure or
\n equipment, contracted, modified or incorporated by or on behalf of
\n the Owner pursuant to this Contract;<\/p>\n
(e) Any failure of Contractor or any of its subcontractors or
\n subconsultants of any tier to perform and complete the Work in
\n strict compliance with the Contract Documents (unless such failure
\n has been specifically and expressly waived by the Owner in writing);<\/p>\n
(f) Failure of Contractor to comply with the insurance provisions of
\n this Paragraph 11.7;<\/p>\n
(g) Any breach by Contractor of any of its duties, obligations or
\n representations and warranties contained in the Contract. The
\n indemnification provisions of this Paragraph 11.7 shall extend to
\n Claims occurring after this Contract is terminated as well as while
\n it is in force. Such indemnity provisions apply regardless of any
\n active and\/or passive negligent act by omission or Owner, its
\n agents, independent contractors or employees. Contractor, however,
\n shall not be obligated under this Contract to indemnify Owner for
\n claims arising from the sole negligence or willful misconduct of
\n Owner or its agents, employees or independent contractors who are
\n directly responsible to Owner, or for defects in design furnished by
\n such persons. The indemnities set forth in this Paragraph 11.7 shall
\n not be limited by the insurance requirements contained herein. The
\n provisions of this paragraph shall survive the expiration or sooner
\n termination of the Contract.<\/p>\n
ARTICLE 12
\n CHANGES IN THE WORK<\/p>\n
12.1 CHANGE ORDERS AND DIRECTIVES. The Owner may, without affecting the
\nvalidity of the Contract Documents or any term or condition thereof, issue
\nChange Orders or Directives or give other orders and instructions regarding
\nthe Work which may have the effect of ordering extra work or other changes in
\nthe Work by altering, adding to or deducting from the Work, modifying the
\nmethod or manner of its performance or otherwise (herein sometimes referred
\nto as “Changes in the Work”). In any such event, the Contract Sum shall,
\nwhere applicable, be increased or decreased in the manner hereinafter set
\nforth; provided, however, that if the Contractor should proceed with a <\/p>\n
21<\/p>\n
Change in the Work upon an oral order, by whomsoever given, it shall
\nconstitute a waiver by the Contractor of any claim for an increase in the
\nContract Sum or extension of the Contract Time on account hereof. All Changes
\nin the Work shall be performed in accordance with the Contract Documents.<\/p>\n
12.2 CHANGES REQUIRING AN INCREASE IN CONTRACT SUM. If any Change in the
\nWork will result in an increase in the Contract Sum, the Owner shall have the
\nright to require the performance thereof on a lump sum basis, a unit price
\nbasis or a time and material basis, all as hereinafter more particularly
\ndescribed.<\/p>\n
12.2.1 LUMP SUM BASIS. If the Owner elects to have any Change in the
\n Work performed on a lump sum basis, its election shall be based on a
\n lump sum proposal which shall be submitted by the Contractor to the
\n Owner within the time established by the Owner in the Owner’s request
\n therefor. The Contractor’s proposal shall be itemized and segregated
\n by labor and materials for the various components of the Change in
\n the Work and shall be accompanied by signed proposals of any
\n Subcontractors or Sub-subcontractors who will perform any portion of
\n the Change in the Work and of any persons who will furnish materials
\n or equipment for incorporation therein. The portion of the proposal
\n relating to labor, whether by the Contractor’s forces or those of
\n its Subcontractors or Sub-subcontractors, may only include
\n reasonably anticipated gross wages of Job Site labor, including
\n foremen, who will be directly involved in the Change in the Work,
\n plus payroll costs (including Social Security, federal or state
\n unemployment insurance taxes and fringe benefits in connection with
\n such labor required by union and\/or trade agreements if applicable)
\n and up to ten percent (10%) of such anticipated gross wages, but not
\n payroll costs, as overhead and profit for any such entity actually
\n performing the Change in the Work or a portion thereof. The portion
\n of the proposal relating to materials may only include the
\n reasonably anticipated direct costs to the Contractor, its
\n Subcontractors or Sub-subcontractors of materials to be purchased
\n for incorporation in the Change in the Work, plus transportation and
\n applicable sales or use taxes, and up to ten percent (10%) of said
\n direct material costs as overhead and profit for the entity actually
\n supplying the materials. The proposal may further include the
\n Contractor’s or its Subcontractor’s or Sub-subcontractor’s
\n reasonably anticipated direct rental costs in connection with the
\n Change in the Work (either actual rates or discounted local
\n published rates), plus up to six percent (6%) thereof as overhead
\n and profit for the entity actually incurring such costs. If any of
\n the items included in the lump sum proposal are covered by unit
\n prices contained in the Contract Documents, the Owner may elect to
\n use these unit prices in lieu of the similar items included in the
\n lump sum proposal, in which event an appropriate deduction will be
\n made in the lump sum amount prior to the application of any allowed
\n overhead and profit percentages. No overhead and profit shall be
\n applied to any unit prices.<\/p>\n
12.2.2 INTENTIONALLY OMITTED.<\/p>\n
12.2.3 TIME AND MATERIAL BASIS. If the Owner elects to have the
\n Change in the Work performed on a time and material basis, the same
\n shall be performed, whether by the Contractor’s forces or the forces
\n of any of its Subcontractors or Sub-subcontractors, at actual cost to
\n the entity performing the Change in the Work (without any charge for
\n administration, clerical expense, supervision or superintendence of
\n any nature whatsoever, except foremen directly involved in the
\n Change in the Work, or the cost, use or rental of small tools
\n defined as tools with a cost or value of less than $1,000, or
\n equipment owned by the Contractor or any of its related or
\n affiliated companies), plus ten percent (10%) of gross wages
\n (excluding payroll costs) of Job Site labor and direct material
\n costs and six percent (6%) of rental costs (other than small tools
\n defined as tools with a cost or value of less than $1,000, or
\n equipment owned by the Contractor or any of its related or
\n affiliated companies) as the total overhead and profit. The
\n Contractor shall submit to the Owner daily time and material
\n tickets, to include the identification number assigned to the Change
\n in the Work, the location and description of the Change in the Work,
\n the classification, names and social security numbers of labor
\n employed, the materials used, the equipment rented (not tools) and
\n such other evidence of cost as the Owner may require. The Owner may
\n require authentication of all time and material tickets and invoices
\n by persons designated by the Owner for such purpose. The failure of
\n the Contractor to secure any required authentication shall, if the
\n Owner elects to treat it as such, constitute a waiver by the
\n Contractor of any claim for the cost of that portion of the Change
\n in the Work covered by a non-authenticated ticket or invoice;
\n provided, however, that the authentication of any such ticket or
\n invoice by the Owner shall not constitute an acknowledgment by the
\n Owner that the items thereon were reasonably required for the Change
\n in the Work.<\/p>\n
12.2.4 The Owner shall have no obligation or liability on account of
\n a Change in the Work except as specifically provided in this Paragraph<\/p>\n
22<\/p>\n
12.2. If the Contractor fails to render any proposal within ten (10)
\n days after the date of the Owner’s request pursuant to this
\n Paragraph 12.2 or such longer period of time established by the
\n Owner in its request, the Owner may issue a unilateral Change Order
\n for any such Change in the Work giving the Owner’s reasonable
\n estimate of the cost of the Change, which shall become automatically
\n binding upon the Contractor. Overhead and profit, as allowed under
\n this Paragraph 12.2, shall be deemed to cover all costs and expenses
\n of any nature whatsoever including, without limitation, those for
\n clean-up, protection, supervision, estimating, field operations,
\n impacts, inefficiency, extended (Job Site and home office) overhead,
\n unabsorbed (Job Site and home office) overhead, delays, acceleration
\n (actual or constructive), ripple effect, small tools and security,
\n which the Contractor or any of its Subcontractors of
\n Sub-subcontractors may incur in the performance of or in connection
\n with a Change in the Work and which are not otherwise specifically
\n recoverable by them pursuant to this Paragraph 12.2.<\/p>\n
12.2.5 The Work pursuant to this Contract shall be performed by the
\n Contractor at no extra cost to the Owner despite any order from the
\n Owner which designates or contemplates a portion of the Work as a
\n Change in the Work.<\/p>\n
12.3 CHANGES REQUIRING A DECREASE IN CONTRACT SUM. If any Change in the
\nWork will result in a decrease in the Contract Sum, the Owner may request a
\nquotation by the Contractor of the amount of such decrease for use in
\npreparing a Change Order. The Contractor’s quotation shall be forwarded to
\nthe Owner within ten (10) days after the date of the Owner’s request of such
\nlonger period of time established by the Owner therein and, if acceptable to
\nthe Owner, shall be incorporated in the Change Order. If not acceptable, the
\nparties shall make every reasonable effort to agree as to the amount of such
\ndecrease, which may be based on a lump sum properly itemized, on unit prices
\nstated in the Contract Documents and\/or on such other basis as the parties
\nmay mutually determine. If the parties are unable to so agree, the amount of
\nsuch decrease shall be the total of the estimated reduction in the actual
\ncost of the Work, as determined by the Owner’s Representative in its
\nreasonable judgment. If the Contractor fails to render any proposal within
\nthe time required herein, the Owner may issue a unilateral deductive Change
\nOrder giving the Owner’s reasonable estimate of the deductive Change, which
\nshall become automatically binding upon the Contractor.<\/p>\n
12.4 DISPUTES REGARDING CHANGES. If any dispute should arise between the
\nparties with respect to an increase or decrease in the Contract Sum as a
\nresult of a Change in the Work, the Contractor shall not suspend performance
\nof any such Change in the Work or the Work itself unless otherwise so ordered
\nby the Owner in writing. The Owner may, however, notify the Contractor of its
\ndetermination regarding any such Change and, in the case of an increase, may
\nthereafter pay to the Contractor up to 50% of the Owner’s reasonable estimate
\nof the value of the Change in the Work as its sole obligation with respect to
\nany such Change pending resolution of the dispute. The Contractor shall
\nthereafter be subject to the terms of Paragraph 13.2 regarding its claims for
\nany difference.<\/p>\n
12.5 AUDIT RIGHTS. Where the Work performed is done pursuant to payment
\nbased upon a negotiated, time and material or cost plus basis, then the
\nContractor shall afford, access to the Owner at all reasonable times to any
\naccounting books and records, correspondence, instructions, invoices,
\nreceipts, vouchers, memoranda and other records of any kind relating to the
\nWork, all of which each of them shall maintain for a period of at least four
\n(4) years from and after the Date of Substantial Completion. The Contractor
\nshall make the same available for inspection, copying and audit, in
\naccordance with general accepted accounting standards, within three (3) days
\nfollowing notification to the Contractor of the Owner’s intent to audit,
\nfailing which any claims for an increase in the Contract Sum and\/or extension
\nof the Contract Time, as applicable, shall be waived.<\/p>\n
ARTICLE 13
\n CLAIMS<\/p>\n
13.1 CLAIMS FOR EXTENSIONS OF CONTRACT TIME. No claim by the Contractor
\nfor an extension of the Contract Time or any Milestones shall be considered
\nunless made in accordance with this Paragraph 13.1. The Contractor shall not
\nbe entitled to any extension of the Contract Time or any milestones as a
\nresult of any cause unless it shall have given written notice to the Owner
\npursuant to Paragraph 16.3, within fourteen (14) days following the
\ncommencement of each such condition or cause of the occurrence and probable
\nduration thereof. The Contractor hereby waives any claims for any such
\nextensions not timely made in accordance herewith.<\/p>\n
13.2 CLAIMS FOR INCREASES IN CONTRACT SUM. Except as otherwise provided
\nin Paragraph 12.2, no claim by the Contractor for an increase in the Contract
\nSum shall be considered unless made in accordance with this Paragraph. The
\nContractor shall give the Owner written notice of any such claim not later
\nthan fourteen (14) days after the occurrence of the event giving rise to the
\nclaim (including, without limitation, any Owner determination pursuant to <\/p>\n
23<\/p>\n
Paragraph 12.4), but (except in the event of emergencies pursuant to
\nParagraph 10.3) prior to the incurring of any expenses by the Contractor.
\nFailure to give such notice shall constitute a waiver of the claim including,
\nbut not limited to, any and all damages, cost, impacts, inefficiency,
\nextended overhead, unabsorbed overhead, ripple effect, or expenses of any
\nnature whatsoever which the Contractor, or its Subcontractors or
\nSub-subcontractors, may suffer or incur. Claims shall be made in writing and
\nshall identify the instructions or other circumstances that are the basis of
\nthe claim and shall set forth the Contractor’s best estimate of the dollar
\namount claimed. No claim shall be considered by the Owner if the Contractor
\nhas otherwise waived its rights to file a claim pursuant to the Contract
\nDocuments..<\/p>\n
13.3 RESOLUTION OF CLAIMS.. The Architect will review Claims and within
\nten (10) days after receipt of a Claim will either (i) reject the Claim in
\nwhole or in part, (ii) recommend approval of the Claim in whole or in part,
\n(iii) request the claimant provide additional information in support of the
\nClaim, or (iv) suggest a compromise. The Architect’s action under the
\npreceding sentence shall be promptly reported to the Owner and the
\nContractor. If a Claim is not resolved after consideration of the foregoing
\nand of any further evidence provided to the Architect, the claimant shall be
\nentitled to pursue its Claim in any lawful manner, subject to any limitations
\ncontained in the Contract Documents, if any. The foregoing notwithstanding,
\nnone of Architect’s decisions or recommendations with respect to Claims or
\nany other matters will be binding on Owner or Contractor unless Owner and
\nContractor otherwise mutually agree in writing.<\/p>\n
13.4 NO OTHER CLAIMS. The parties acknowledge that the provisions of
\nParagraphs 13.1 and 13.2 are included herein for the purpose of fixing and
\nlimiting the time within which, and the manner in which claims must be made;
\nand that Paragraphs 13.1 and 13.2 do not grant to the Contractor any right to
\nincrease in the Contract Sum, or extensions in the Contract Time or any
\nMilestones, not otherwise permitted or provided by the other terms and
\nprovisions of the Contract Documents.<\/p>\n
13.5 NO ARBITRATION. Owner and Contractor hereby agree that no claims or
\ndisputes between Owner and Contractor arising out of or relating to the
\nContract Documents or a breach thereof shall be decided by any arbitration
\nproceeding including, without limitation, any proceeding under the Federal
\nArbitration Act (9 U.S.C. Sections 1-14), or any applicable state arbitration
\nstatute, except that in the event that Owner is subject to an arbitration
\nproceeding related to the Project, Contractor consents to being joined in the
\narbitration proceeding if Contractor’s presence is required or requested by
\nOwner for complete relief to be accorded in the arbitration proceeding.<\/p>\n
ARTICLE 14
\n UNCOVERING AND CORRECTION OF WORK;
\n OWNER’S RIGHT TO CARRY OUT WORK<\/p>\n
14.1 UNCOVERING OF WORK.<\/p>\n
14.1.1 If any portion of the Work should be covered contrary to the
\n instructions or request of the Owner or the requirements of the
\n Contract Documents, the Contractor shall, if required by the Owner,
\n uncover such portions of the Work for the Owner’s observation and
\n shall replace such Work, all at the Contractor’s sole expense.<\/p>\n
14.1.2 If any portion of the Work should be covered prior to a
\n specific request for observation or instruction by the Owner, the
\n Owner may request to see such Work, and it shall be uncovered by the
\n Contractor. If such Work is found to be in accordance with the
\n Contract Documents and without defect, the cost of uncovering and
\n replacement shall, by appropriate Change Order, be charged to the
\n Owner. If such work is found to be defective or not in accordance
\n with the Contract Documents, the Contractor shall bear such costs;
\n provided, however, that if it is found that the condition was caused
\n by a Separate Contractor employed as provided in Article 7, the
\n Contractor shall have the right to seek reimbursement of the costs
\n it incurs as aforesaid from said Separate Contractor.<\/p>\n
14.2 CORRECTION OF WORK.<\/p>\n
14.2.1 The Owner shall have the authority to reject any portion of
\n the Work which is defective or does not conform to the Contract
\n Documents, and the Contractor shall promptly correct all Work so
\n rejected by the Owner, whether observed before or after the Date of
\n Substantial Completion and whether or not fabricated, installed or
\n completed. In order that such corrective work shall not interrupt or
\n delay the Owner’s schedule for completion of the Project or, if
\n applicable, disturb the occupants of the completed Project, the
\n Contractor shall perform such work according to a schedule therefor
\n established by the Owner (which may provide that the same be
\n performed on overtime, shift <\/p>\n
24<\/p>\n
work, Saturdays, Sundays and\/or holiday), utilizing in the
\n performance thereof such manpower as is necessary to complete the
\n corrective Work in accordance with said schedule. The Contractor
\n shall bear all costs of correcting such rejected Work, including,
\n without limitation, compensation for any additional architectural
\n and engineering services made necessary thereby.<\/p>\n
14.2.2 If, within one (1) year after the Date of Substantial
\n Completion of the Work or within such longer period of time as may
\n be prescribed by law or by the terms of any applicable warranty or
\n guarantee required by the Contract Documents, any of the Work is
\n found to be defective or not in accordance with the Contract
\n Documents, the Contractor shall correct it promptly after receipt of
\n written instructions to that effect from the Owner unless the Owner
\n has previously given the Contractor a written acceptance of such
\n condition.<\/p>\n
14.2.3 The Contractor shall remove from the Job Site all Work
\n which is defective or non-conforming and not corrected under
\n Paragraph 5.3 or Subparagraphs 14.2.1 or 14.2.2 unless removal is
\n waived by the Owner.<\/p>\n
14.2.4 The Contractor shall bear the cost of making good all work
\n of Separate Contractors (and any of the Owner’s other structures or
\n facilities) destroyed or damaged by such removal or correction.<\/p>\n
14.2.5 If the Contractor does not remove such uncorrected
\n defective or non-conforming Work within a reasonable time fixed by
\n written instructions to that effect from the Owner, the Owner may
\n remove it and store the materials and equipment at the expense of
\n the Contractor. If the Contractor does not pay the cost of such
\n removal and storage within ten (10) days thereafter, the Owner may,
\n upon ten (10) additional days written notification to the
\n Contractor, sell such materials and equipment at public or private
\n sale and account to the Contractor for the net proceeds thereof,
\n after deducting all the costs that should have been borne by the
\n Contractor, including compensation for any additional architectural
\n and engineering services and attorneys’ fees made necessary thereby.
\n If such proceeds of sale do not cover all costs which the Contractor
\n should have borne, the difference shall be deducted or offset
\n against any amounts then or thereafter due to the Contractor. If the
\n amounts then or thereafter due to the Contractor are not sufficient
\n to cover such difference, the Contractor shall, upon demand, pay the
\n same to the Owner. The obligations of the Contractor under this
\n Subparagraph 14.2.5 shall be in addition to, and not in limitation
\n of, any obligations imposed on it by law, by any other provision of
\n this Contract or by any warranty or guarantee under this Contract.<\/p>\n
14.2.6 If the Contractor fails to correct any defective or
\n non-conforming Work, the Owner may correct it in accordance with
\n Paragraph 14.3. In the event of a defect found after final
\n acceptance of the Work by the Owner which the Contractor is
\n obligated to correct pursuant to Subparagraph 14.2.2, the Owner may,
\n at its option, after giving the Contractor an opportunity to correct
\n such defect, cause such corrective work to be performed by others
\n and charge the Contractor with the cost thereof. Such charge shall
\n be due and payable by the Contractor upon demand. The Contractor’s
\n obligations under this Paragraph 14.2 shall survive the expiration
\n or sooner termination of this Contract.<\/p>\n
14.3 OWNER’S RIGHT TO CARRY OUT WORK. If the Contractor defaults or
\nneglects to carry out the Work in accordance with the Contract Documents or
\nfails to perform any provision of this Contract, and such default, neglect or
\nnon-performance shall continue for a period of 48 hours after written
\nnotification thereof from the Owner (or if such default, neglect or
\nnon-performance cannot be reasonably remedied within such 48-hour period, and
\nContractor does not (in the sole determination of Owner) undertake in good
\nfaith the remedy of the same within said period and thereafter proceed
\ndiligently to completion), then the Owner may, without prejudice to any other
\nremedy the Owner may have, make good such deficiencies; provided, however,
\nthat in the event of an emergency, as reasonably determined by the Owner, no
\nnotification shall be required. The Owner shall have the right to take
\npossession of such portion of the Job Site as will enable it to make good
\nsuch deficiencies and, in connection therewith, to utilize the materials,
\nequipment, tools, construction equipment and machinery of the Contractor
\nlocated on the Job Site. If the Owner makes good any such deficiencies, the
\ncosts of correcting the same, including compensation for additional
\narchitectural and engineering service made necessary by such default, neglect
\nor non-performance, shall be deducted or offset against any amounts then or
\nthereafter due to the Contractor. If the amounts then or thereafter due to
\nthe Contractor are not sufficient to cover such costs, then the Contractor
\nshall, upon demand, pay the difference to the Owner.<\/p>\n
14.4 ACCEPTANCE OF DEFECTIVE OR NON-CONFORMING WORK. If the Owner
\nprefers to accept defective or non-conforming Work, it may do so instead of
\nrequiring its removal and correction, in which case an appropriate amount
\nshall be deducted or offset against any amounts then or thereafter due to the
\nContractor; or, if the said appropriate amount of offset is determined after
\nfinal payment (or if there is not then or thereafter due to the <\/p>\n
25<\/p>\n
Contractor an amount sufficient to cover the deduction or offset available to
\nthe Owner), the Contractor shall, upon demand, pay the appropriate amount (or
\nthe difference after offset, as applicable) to the Owner.<\/p>\n
ARTICLE 15
\n TERMINATION OF CONTRACT<\/p>\n
15.1 TERMINATION BY CONTRACTOR. If the Owner should, without notifying
\nthe Contractor of its cause for doing so, fail or refuse to approve an
\nApplication for Payment or make payment thereon for a period of Twenty Five
\n(25) days after the same is required to be approved or paid pursuant to the
\nContract Documents, then the Contractor shall have the right, as its sole and
\nexclusive remedy and upon Seven (7) days prior written notice to the Owner,
\nto terminate this Contract and recover from the Owner payment for all unpaid
\nWork executed up to the date of termination, including any proven loss of
\nreasonable profits sustained, based upon the percentage of Work completed
\nthrough the date of termination. If the Owner shall cure its said default
\nwithin such fourteen (14) day period, then the Contractor’s notice of
\ntermination shall thereby be rendered ineffective, and this Contract shall
\ncontinue in full force and effect. Prior to termination as aforesaid, the
\nContractor shall not delay or suspend the Work in whole or in part. The
\nContractor may not terminate this Contract on the grounds that the cause
\ngiven by the Owner for failing or refusing to pay is not in accordance with
\nfact or law, it being understood and agreed that the Contractor’s sole remedy
\nin such event shall be to seek money damages. The Contractor acknowledges
\nthat it can be adequately compensated by such money damages for any breach of
\nthis Contract which may be committed by the Owner. Accordingly, and except as
\nhereinabove provided, the Contractor expressly agrees that no default, act or
\nomission of the Owner shall entitle the Contractor to cancel, rescind or
\nterminate this Contract or suspend or abandon its performance of the Work.<\/p>\n
15.2 TERMINATION BY OWNER FOR CAUSE.<\/p>\n
15.2.1 If the Contractor should become insolvent, file any
\n bankruptcy proceedings, make a general assignment for the benefit of
\n creditors, suffer or allow appointment of a receiver, refuse, fail
\n or be unable to make prompt payment to Subcontractors, disregard
\n applicable laws, ordinances, governmental orders or regulations or
\n the instructions of the Owner, or if the Contractor should otherwise
\n be guilty of a violation of, or in default under, any provision of
\n the Contract, then the Owner may, without prejudice to any other
\n right or remedy available to the Owner and after giving the
\n Contractor and its surety, if any, three (3) days’ written notice,
\n terminate the Contract and the employment of the Contractor on the
\n Project, take possession of the Job Site and of all materials,
\n equipment, tools, construction equipment and machinery thereon owned
\n by the Contractor and finish the Work by whatever method the Owner
\n may deem expedient. In addition, without terminating this Contract
\n as a whole, the Owner may, under any of the circumstances set forth
\n above, terminate any portion of this Contract (by reducing, in such
\n manner as the Owner deems appropriate, the scope of the Work to be
\n performed by the Contractor) and complete the portion of this
\n Contract so terminated in such manner as the Owner may deem
\n expedient, taking possession of such part of the Job Site and
\n utilizing such materials, equipment, tools, construction equipment
\n and machinery owned by the Contractor as may be necessary to
\n accomplish the same. The Contractor hereby grants to the Owner the
\n further right: (a) to enter upon any premises or property other than
\n the Job Site in order to take possession of any materials, tools,
\n equipment, machinery or other items intended for incorporation in
\n the Work (or any portion thereof) or for use in the performance
\n thereof and (b) to receive an assignment of such subcontracts as the
\n Owner deems necessary or desirable at the time of termination of
\n this Contract or a portion thereof.<\/p>\n
15.2.2 If this Contract is terminated pursuant to Subparagraph
\n 15.2.1, the Contractor shall not be entitled to receive any further
\n payment until the Work is completed, and the Owner shall have the
\n same right to retain monies owing to the Contractor as it would have
\n to retain such monies from and against final payments. Upon the
\n completion of the Work, the Owner shall make payment to the
\n Contractor, or the Contractor shall reimburse the Owner, as the case
\n may be, as provided in Article 10 of the Agreement. If a portion of
\n this Contract is terminated pursuant to Subparagraph 15.2.1, such
\n termination shall not be treated as a reduction in the scope of the
\n Work pursuant to Article 12. Rather, in such event, the Owner shall
\n deduct or offset against any monies then or thereafter due to the
\n Contractor an amount determined by the Owner to be adequate to cover
\n all costs and expenses it will incur in performing, or cause to be
\n performed, the portion of this Contract so terminated. If the
\n Owner’s costs and expenses prove to be less than the amount deducted
\n or offset, the Contractor shall be entitled to the difference unless
\n otherwise provided herein. If the amount then or thereafter due to
\n the Contractor is less than the amount to be deducted or offset
\n and\/or if the Owner’s costs <\/p>\n
26<\/p>\n
and expenses prove to exceed the amount deducted or offset, the
\n Contractor shall pay the difference to the Owner upon demand.<\/p>\n
15.2.3 The remedies provided to the Owner in this Paragraph 15.2
\n are in addition to, and not in lieu of, any other rights or remedies
\n available to the Owner under the Contract Documents, at law or in
\n equity. In the event of any breach of this Contract by the
\n Contractor, and whether or not this Contract is terminated by the
\n Owner, the Contractor shall be liable for all damages, losses, costs
\n and expenses incurred by the Owner as a result thereof.<\/p>\n
15.3 TERMINATION BY OWNER WITHOUT CAUSE. Without limitation to the
\nprovisions of Paragraph 15.2, the Owner shall have the right at any time,
\nupon not less than seven (7) days notice to the Contractor to terminate this
\nContract without cause and\/or for the Owner’s convenience. Upon receipt of
\nsuch notice of termination, the Contractor shall forthwith discontinue the
\nWork and remove its equipment and employees from the Job Site. In the event
\nof termination under this Paragraph 15.3, the Contractor shall have the
\nright, as its sole and exclusive remedy, to recover from the Owner payment
\nfor all unpaid Work executed up to the date of termination. In addition,
\nwithout terminating this Contract as a whole, the Owner may, for its
\nconvenience, terminate a portion of this Contract (by reducing, in such
\nmanner as the Owner deems appropriate, the scope of the Work to be performed
\nby the Contractor), in which event such termination of a portion of this
\nContract shall be treated as a reduction in the scope of the Work pursuant to
\nArticle 12.<\/p>\n
ARTICLE 16
\n MISCELLANEOUS PROVISIONS<\/p>\n
16.1 GOVERNING LAW. This Contract shall be governed by, and construed in
\naccordance with, the laws of where the Project is located, to the exclusion
\nof the rules of conflicts of laws of the state where the Project is located.<\/p>\n
16.2 ASSIGNABILITY; SUCCESSORS AND ASSIGNS.<\/p>\n
16.2.1 This Contract may be assigned by Owner at any time without
\n Contractor’s consent; without limiting the generality of the
\n foregoing, all warranties and guarantees in favor of Owner under the
\n Contract Documents may be assigned without Contractor’s consent by
\n Owner to any party designated by Owner and such assignee may
\n directly enforce any such warranty or guarantee. The Contractor
\n shall not assign this Contract in whole or in part without the
\n written consent of the Owner, which consent the Owner may withhold
\n in its sole discretion; nor shall this Contract be assignable by the
\n Contractor by operation of law. The Contractor shall not assign any
\n monies due or to become due to it hereunder without the prior
\n written consent of the Owner.<\/p>\n
16.2.2 The Owner and the Contractor each binds itself and, to the
\n extent permitted herein, its successors and assigns, to the other
\n party and, to the extent permitted herein, the other party’s
\n successors and assigns, in respect to all covenants, agreement and
\n obligations contained in the Contract Documents.<\/p>\n
16.3 PERFORMANCE AND PAYMENT BONDS. Unless waived or otherwise agreed by
\nthe Owner, the Contractor shall furnish before commencing any Work hereunder,
\nand under each continuing (on-call) Work on multiple projects or continuing
\n(on-call) services as set forth in the Owner approved Work Authorization
\nForms, (and if directed by the Owner shall require all or certain of its
\nSubcontractors to furnish) a bond covering the faithful performance of this
\nContract (or any such subcontract), as revised or modified from time to time,
\nand a bond covering the payment of all obligations arising thereunder in full
\ncompliance with applicable law each in the full Contract Sum, as revised or
\nModified from time to time, and with such sureties as may be approved by the
\nOwner. If such bonds, or either of them, are stipulated in the bidding
\ndocuments or in the Contract Documents, the premium therefor shall be paid by
\nthe Contractor (or appropriate Subcontractors); but if required or increased
\nin amount pursuant hereto subsequent to award of Contract or due to Changes
\nin the Work, the premium therefor shall be reimbursed by the Owner. The
\nContractor shall deliver promptly, and in any event no later than ten (10)
\ndays after notice of award, to the Owner any required bonds or amendments
\nthereto. The Contractor’s failure to timely obtain and deliver the required
\nbonds or amendments thereto shall constitute cause for the Owner to terminate
\nthis Contract (or for the Contractor to terminate any subcontract). The Owner
\nshall not be obligated to respond to, and the Contractor shall assure that
\nthe Owner is not sent any job status inquiries from the Contractor, any
\nsurety, or any of their accountant or independent auditors.<\/p>\n
16.4 UNION AGREEMENTS. Except as otherwise set forth in this Agreement
\nincluding but not limited to paragraph 8.3, regardless of the expiration of
\nany collective bargaining agreement during the term of this Contract which
\nmay affect the Contractor in any of its activities including, without
\nlimitation, with respect to the Work or the Project, the Contractor is
\nobligated to man the job and properly and timely perform the Work in a
\ndiligent manner. Upon notification of expected or actual labor disputes or
\njob disruption arising out of any such collective bargaining negotiations,
\nthe expiration of any union or <\/p>\n
27<\/p>\n
trade agreement or any other cause, the Contractor and its Subcontractors and
\nSub-subcontractors shall cooperate with the Owner concerning any legal,
\npractical or contractual actions to be taken by the Owner in response thereto
\nand shall perform any actions requested by the Owner to eliminate, neutralize
\nor mitigate the affects of such actions on the progress of the Work and the
\nimpact of such actions on the public access to the Owner’s facilities. It is
\nthe Contractor’s obligation, at the Contractor’s own cost and expense, to
\ntake all steps available to prevent any persons performing the Work from
\nengaging in any disruptive activities such as strikes, picketing, slowdowns,
\njob actions or work stoppages of any nature or ceasing to work due to
\npicketing or other such activities, which steps shall include, without
\nlimitation, execution of an appropriate project agreement with appropriate
\nunions prohibiting all such activities on or about the Project.
\nNotwithstanding any such occurrences, the Contractor shall not be relieved of
\nits obligation to man the job and properly and timely perform the Work in a
\ndiligent manner.<\/p>\n
16.5 GENERAL.<\/p>\n
16.5.1 The captions of divisions, sections, articles, paragraphs,
\n subparagraphs, clauses and the like in the Contract Documents are
\n for convenience only and shall in no way define the content or
\n limit the meaning or construction of the wording of the divisions,
\n sections, articles, paragraphs, subparagraphs, clauses and the
\n like. The parties agree that the Contract Documents shall not be
\n construed more strictly against any party regardless of the
\n identity of their drafter.<\/p>\n
16.5.2 Unless otherwise specified, article, paragraph and
\n subparagraph references appearing in these General Conditions are to
\n articles, paragraphs and subparagraphs herein.<\/p>\n
16.5.3 Wherever this Contract obligates the Contractor to
\n “indemnify” the Owner, such obligations shall include, but shall
\n not be limited by, the following: (i) the Contractor shall
\n indemnify the Owner and Owner’s Representative, the parent,
\n related, affiliated and subsidiary companies of each, and the
\n officers, directors, agents, employees and assigns of each;
\n (ii) the Contractor shall defend (if requested by the Owner)
\n and hold each indemnitee harmless; (iii) in the event of any such
\n requested defense, the Owner may choose its legal counsel
\n and control the litigation including, without limitation,
\n determining legal strategy, settlement strategy and whether or not
\n to file any appeals; (iv) the Contractor shall not raise a defense
\n to its obligation to indemnify any comparative or contributing
\n negligence of any of those indemnified pursuant to any such
\n provision, it being understood and agreed that no such
\n comparative or contributing negligence shall relieve the
\n Contractor from its liability to so indemnify or entitle the
\n Contractor to any contribution, either directly or indirectly
\n by those indemnified; (v) no indemnification obligation hereunder
\n shall be limited in any way to any limit on the amount or type of
\n damage, compensation or benefits payable by or for the Contractor
\n or any Subcontractor or any Sub-subcontractor under any Worker’s
\n Compensation Act, disability benefit acts or other employee benefit
\n acts and (vi) in all such indemnity provisions shall survive
\n the expiration or sooner termination of this Contract.<\/p>\n
16.5.4 Unless otherwise specifically provided herein, the Owner
\n may withhold any consents, approvals or waivers required of it
\n pursuant to this Contract in its discretion, which consent shall not
\n be unreasonably withheld.<\/p>\n
16.6 IMMIGRATION REFORM CONTROL ACT. All Contractors, Subcontractors and
\nSub-subcontractors must adhere to the Immigration Reform Control Act of 1986
\nand shall maintain I-9 forms regarding all employees. It is not the Owner’s
\nobligation to insure compliance with this law, however, the Owner reserves
\nthe right to inspect and copy the Contractor’s records in this regard upon
\nrequest.<\/p>\n
16.7 ATTORNEY’S FEES. Any other terms of this Agreement to the contrary
\nnotwithstanding, the parties agree that if any action or proceeding is
\ncommenced by either party to enforce their rights under this Agreement or to
\ncollect damages as a result of the breach of any of the provisions of this
\nAgreement, the prevailing party in such action or proceeding, shall be
\nentitled to recover all reasonable costs and expenses, including, without
\nlimitation, reasonable attorneys’ fees and court costs, including the costs
\nof expert witnesses and consultants, in addition to any other relief awarded
\nby the court.<\/p>\n
28<\/p>\n
EXHIBIT D<\/p>\n
MILESTONE DATES<\/p>\n
(the Milestone Dates for continuing (on-call) Work on multiple projects or
\n continuing (on-call) services shall be described in the job specific Work
\n Authorization form)<\/p>\n
EXHIBIT D, Milestone Dates, is bound within this Agreement and made apart of
\nthe Contract Documents between Owner and Contractor.<\/p>\n
22<\/p>\n
EXHIBIT E<\/p>\n
CONTRACTOR’S GUARANTEE TO OWNER<\/p>\n
In consideration of the above referenced Contract and pursuant to the
\nprovisions thereof, the undersigned hereby guarantees to the Owner, its
\nsuccessors and assigns, any and all Work which the undersigned has contracted
\nto perform, or cause to be performed, pursuant to the above referenced
\nContract against any defects in workmanship, materials and\/or equipment. Such
\nWork is defined in the Contract Documents.<\/p>\n
In addition to the foregoing guarantee, the undersigned agrees to repair
\nand\/or, at the option of the Owner, replace at its own cost and expense any
\nor all of the aforesaid Work that within a period of one (1) year from the
\ndate of acceptance thereof by the Owner (or such longer period of time as may
\nbe prescribed by law or otherwise specified in the Contract Documents) may
\nprove to be defective in workmanship, material and\/or equipment or in any way
\nnot be in strict accordance and compliance with the Contract Documents,
\ntogether with any adjacent structures or facilities which have been displaced
\nor damaged by so doing or which may have been damaged as a result of any
\ndefect in workmanship, material and\/or equipment or the failure of the Work
\nto comply with the Contract Documents. All such repairs and\/or replacements
\nshall be performed in accordance with all agreements, terms, conditions,
\ncovenants and provisions of the Contract Documents pursuant to which the said
\nWork was performed, except that such repairs and\/or replacements shall be
\nwithout cost to the Owner, its successors or assigns, or to any related
\ncompany of the Owner.<\/p>\n
Should the undersigned fail to perform its obligations under this Guarantee
\npromptly after being given notice of a defect by the Owner, then the Owner
\nmay, at its option, perform such corrective work or cause it to be performed
\nby others and charge the undersigned with the cost <\/p>\n
23<\/p>\n
thereof; provided, however, that if, in the sole judgment of the Owner, an
\nemergency exists as a result of any such defect which, in the Owner’s
\nopinion, requires more immediate corrective action than the undersigned is
\nable to provide, then the Owner may, without notice to the undersigned,
\nperform such corrective work or cause it to be performed by others and charge
\nthe undersigned with the cost thereof.<\/p>\n
CONTRACTOR<\/p>\n
Dome Construction Corporation Local Representative to be contacted for service:<\/p>\n
By:_____________________<\/p>\n
Name: Name: John Robertson, Vice President<\/p>\n
Title: Address: 80 Carolina Street<\/p>\n
San Francisco, California 94103-5116<\/p>\n
Date:_____________________ Telephone Number (415) 864-6140<\/p>\n
24<\/p>\n
EXHIBIT F<\/p>\n
PAYMENT BOND<\/p>\n
(If this Agreement is for continuing (on-call) Work on multiple projects or
\n continuing (on-call) services, a separate Payment Bond shall be
\n issued for each job specific project or service)<\/p>\n
KNOW ALL MEN BY THESE PRESENTS, That we ______________________ as Principal
\n(Contractor) and as Surety, are held and firmly bound unto ___________ as
\nObligee (OWNER), in the penal sum of _____________________________ DOLLARS
\n($__________) for the payment of which sum we jointly and severally bind
\nourselves, our heirs, assigns, executors, administrators and successors
\nfirmly by these presents.<\/p>\n
THE CONDITION of the obligation is such that, whereas Contractor has entered
\ninto a Contract with OWNER dated _______________ which Contract is hereto
\nattached and expressly made a part hereof to perform the following work:<\/p>\n
NOW, THEREFORE, if the Contractor shall pay promptly and in full the claims
\nof all persons, firms, partnerships, corporations or others, supplying labor,
\nmaterial, services, utilities or equipment in connection with the prosecution
\nof the work provided for in the Contract and any and all modifications,
\nadditions or alterations of the Contract that may hereafter be made, and
\nshall fully indemnify and hold harmless the OWNER from all loss, liability
\ncosts, damage penalty and attorney’s fees or expenses for all taxes,
\ninsurance premiums, any and all applicable contributions, allowances or other
\npayments or deductions however termed, required by statute or labor union
\nagreement, including voluntary payment thereof by the OWNER necessary to
\ninsure orderly prosecution of work or other items or services in connection
\nwith the Contract to be supplied or performed which OWNER may suffer by
\nreason of failure to do so and shall fully reimburse and repay the OWNER all
\noutlay and expense which the OWNER may incur in making good any such failure,
\nthen this obligation shall be void; otherwise, it shall remain in full force
\nand effect.<\/p>\n
25<\/p>\n
The Surety and the Contractor further agree that any changes, modifications,
\nadditions or alterations which may be made in the terms of the Contract or in
\nthe scope or character of the work to be done thereunder, or any extensions
\nof the Contract or in due time for completion thereof any change in the
\nmanner, time or amount of a payment as provided therein, or other forbearance
\non the part of either the OWNER or Contractor to the other, shall not in any
\nway release the Contractor and the Surety, or either of them, their heirs,
\nassigns, executors, administrators and successors from their liability
\nthereunder, nor affect the obligations of any of them hereunder, notice to
\nSurety of any such changes, modifications, additions, extensions or
\nforbearance being hereby expressly waived by the Surety.<\/p>\n
The Surety and the Contractor further agree that this bond shall insure to
\nthe benefit of, and may be sue directly upon by any person, firm or
\ncorporation furnishing labor, material services, utilities or equipment, in
\nthe prosecution of the work provided for in the Contract, or any
\nmodifications, additions or alterations thereto, or who has the right to
\nestablish a lien or claim against OWNER or OWNER’s property, premises or
\nimprovements or any funds accrued, or to accrue, from OWNER.<\/p>\n
The sum of this Payment Bond is in addition to the sum of the Performance
\nBond being executed concurrently herewith.<\/p>\n
IN WITNESS HEREOF, the parties have executed this instrument under their
\nseveral seals this _____ day of ________________, 19___.<\/p>\n
____________________________________ ________________________________________
\nCONTRACTOR CORPORATE SURETY<\/p>\n
____________________________________ ________________________________________
\nAddress Address<\/p>\n
____________________________________ ________________________________________<\/p>\n
By:_________________________________ By:_____________________________________
\n (SEAL) (SEAL)<\/p>\n
26<\/p>\n
EXHIBIT G<\/p>\n
PERFORMANCE BOND<\/p>\n
(If this Agreement is for continuing (on-call) Work on multiple projects or
\n continuing (on-call) services, a separate Performance Bond shall
\n be issued for each job specific project or service)<\/p>\n
KNOW ALL MEN BY THESE PRESENTS, That we ______________________ as Principal
\n(Contractor) and as Surety, are held and firmly bound unto _________________
\nas Obligee (OWNER), in the penal sum of ____________________________ DOLLARS
\n($___________) for the payment of which sum we jointly and severally bind
\nourselves, our heirs, assigns, executors, administrators and successors
\nfirmly by these presents.<\/p>\n
THE CONDITION of the obligation is such that, whereas Contractor has entered
\ninto a Contract with OWNER dated _______________ which Contract is hereto
\nattached and expressly made a part hereof to perform the following work:<\/p>\n
NOW, THEREFORE, if the Contractor shall well and truly perform and fulfill
\nall the undertakings, covenants, terms, conditions and agreements of the
\nContract and any extensions thereof that may be granted by the OWNER, and
\nduring the term of any warranty required under the Contract, and shall also
\nwell and truly perform and fulfill all the undertakings, covenants, terms,
\nconditions and agreements of any and all modifications, additions or
\nalterations of the Contract that may hereafter be made, and shall also fully
\nindemnify and hold harmless the OWNER from all loss, liability costs, damage
\npenalty and attorneys’ fees which OWNER may incur by reason of failure to
\nwell and truly keep and perform each, every and all of the terms and
\nconditions of said Contract as modified, amended, altered or added to on the
\npart of Contractor to be kept and performed, including but not limited to
\ncompletion within the time specified of all work covered by said Contract,
\nperformance of all obligations, and guarantees of Contractors and shall fully
\nreimburse and repay the OWNER all outlay and <\/p>\n
27<\/p>\n
expense which the OWNER may incur in making good any such failure, then this
\nobligation shall be void; otherwise it shall remain in full force and effect.<\/p>\n
The Surety further agrees that whenever Contractor shall be, and is declared
\nby OWNER to be, in default under the Contract (and said default shall be
\nconstrued to be any breach of any of the provisions of the Contract on the
\npart of the Contractor) the Surety shall promptly remedy the default, or will
\ncomplete the Contract in accordance with its terms and conditions and shall
\nfully indemnify and hold harmless the OWNER from all costs, damages and
\nexpenses which may arise thereafter (including reasonable attorney’s fees)
\nand which the OWNER may suffer by reason of Surety’s failure to do so.<\/p>\n
The Surety and the Contractor further agree that any changes, modifications,
\nadditions or alterations which may be made in the terms of the Contract or in
\nthe scope or character of the work to be done thereunder, or any extensions
\nof the Contract, or in the time for completion thereof, any change in the
\nmanner, time or amount or payment as provided therein, or other forbearance
\non the part of either the OWNER or Contractor to the other, shall not in any
\nway release the Contractor and the Surety, or either of them, their heirs,
\nassigns, executors, administrators and successors, from their liability
\nhereunder, nor affect the obligations of any of them hereunder, notice to
\nSurety of any such modifications, additions, extensions or forbearance being
\nhereby expressly waived by the Surety.<\/p>\n
The sum of this Performance Bond is in addition to the sum of the Payment
\nBond being executed concurrently herewith.<\/p>\n
IN WITNESS HEREOF, the above parties have executed this instrument under
\ntheir several seals this ____ day of __________________, 19___.<\/p>\n
____________________________________ ________________________________________
\nCONTRACTOR CORPORATE SURETY<\/p>\n
____________________________________ ________________________________________
\nAddress Address<\/p>\n
28<\/p>\n
____________________________________ ________________________________________<\/p>\n
By:_________________________________ By:_____________________________________
\n (SEAL) (SEAL)<\/p>\n
29<\/p>\n
EXHIBIT H<\/p>\n
CHANGE ORDER<\/p>\n
The “Change Order”, AIA DOCUMENT G701, fourteenth edition, April 1987, is not
\nbound within this Agreement, but is made apart of the Contract Documents
\nbetween Owner and Contractor.<\/p>\n
30<\/p>\n
EXHIBIT I<\/p>\n
LEGAL DESCRIPTION<\/p>\n
(If this Agreement is for continuing (on-call) Work on multiple projects or
\n continuing (on-call) services, a separate Legal Description shall
\n be attached to the Owner approved Work Authorization
\n Form for each job specific project or service)<\/p>\n
The Legal Description is bound within this Agreement and made a part of the
\nContract Documents between Owner and Contractor.<\/p>\n
31<\/p>\n
LEGAL DESCRIPTION<\/p>\n
225 BUSH STREET
\nCITY AND COUNTY OF SAN FRANCISCO
\nSTATE OF CALIFORNIA<\/p>\n
PARCEL ONE:<\/p>\n
Beginning at the point formed by the intersection of the southerly line of
\nBush Street with the westerly line of Sansome Street; Running thence
\nsoutherly along said line of Sansome Street 137 feet 6 inches; thence at a
\nright angle westerly 206 feet and 3 inches; thence at a right angle northerly
\n137 feet and 6 inches to the southerly line of Bush Street; thence at a right
\nangle easterly along said line of Bush Street 206 feet and 3 inches to the
\npoint of beginning.<\/p>\n
Being a portion of 50 Vara Block No. 56.<\/p>\n
PARCEL TWO:<\/p>\n
Beginning at a point on the southerly line of Bush Street, distant thereon
\n206 feet and 3 inches westerly from the westerly line of Sansome Street;
\nrunning thence westerly along said line of Bush Street 68 feet and 9 inches;
\nthence at a right angle southerly 137 feet and 6 inches; thence at a right
\nangle easterly 68 feet and 9 inches; thence at a right angle northerly
\n137 feet and 6 inches to the point of beginning.<\/p>\n
Being a portion of 50 Vara Block No. 56.<\/p>\n
PARCEL THREE:<\/p>\n
Beginning at a point which is perpendicularly distant 245 feet westerly from
\nthe westerly line of Sansome Street and perpendicularly distant 254 feet
\nsoutherly from the southerly line of Bush Street; running thence northerly
\nand parallel with the westerly line of Sansome Street 16 feet and 6 inches;
\nthence at a right angle westerly 30 feet; thence at a right angle southerly
\n16 feet and 6 inches; thence at a right angle easterly 30 feet to the point
\nof beginning.<\/p>\n
Being a portion of 50 Vara Block No. 56.<\/p>\n
PARCEL FOUR:<\/p>\n
An exclusive easement appurtenant to parcels one, two and three above, as more
\nparticularly described in the deed recorded December 18, 1973, in Book B835,
\nPage 939, official records, Instrument No. W-38605, affecting the following
\ndescribed real property:<\/p>\n
Beginning at a point on the southerly line of Bush Street, distant thereon
\n275 feet westerly from the point of intersection of said southerly line of
\nBush Street and the westerly line of Sansome Street; running thence westerly
\nalong said southerly line of Bush Street 25 feet; thence at a right angle
\nsoutherly 154 feet to a point perpendicularly distant 121 feet, more or less,
\nfrom the northerly line of Sutter Street; thence at a right angle easterly
\n25 feet; thence at a right angle northerly 154 feet to said southerly line of
\nBush Street and the point of beginning.<\/p>\n
Being a portion of 50 Vara Block No. 56.<\/p>\n
EXHIBIT J<\/p>\n
SCHEDULE OF VALUES<\/p>\n
The above Schedule of Values is to be allocated by building and division before
\nsubmission of the first Application for Payment as mutually agreed to by Owner
\nand Contractor.<\/p>\n
32<\/p>\n
ADDENDUM 1<\/p>\n
HOURLY RATE OR FEE SCHEDULE<\/p>\n
(for continuing (on-call) Work on multiple projects or
\n continuing (on-call) services, the hourly rate or fee
\n schedule shall be as set forth in the job specific Work
\n Authorization)<\/p>\n
33<\/p>\n
ADDENDUM 2<\/p>\n
WORK AUTHORIZATION FORM<\/p>\n
(an Owner approved Work Authorization Form shall be
\n issued for each project for continuing (on-call)
\n Work on multiple projects or continuing
\n (on-call) services)<\/p>\n
34<\/p>\n
WORK AUTHORIZATION FORM<\/p>\n
TO<\/p>\n
CONSTRUCTION AGREEMENT<\/p>\n
(The Work Authorization Form to Construction Agreement is only applicable if the
\nAgreement (as defined below), is for continuous on-call work on multiple
\nprojects or continuous on-call services)<\/p>\n
This Work Authorization Form to Construction Agreement (“Work Authorization”)
\nwhich supplements the Construction Agreement dated _____________ (“Construction
\nAgreement”), is made and entered into as of the _________ day of _____________,
\n1998, by and between _____________ (“Owner”) and _____________ (“Contractor”).<\/p>\n
ARTICLE I
\n CERTAIN DEFINITIONS<\/p>\n
1.1 “WORK AUTHORIZATION #”: _____________<\/p>\n
1.2 “COMMENCEMENT DATE” shall mean the earlier of the _____________ or
\nthe date fixed in a Notice to Proceed to be delivered by Owner to Contractor
\nafter the date of this Work Authorization form.<\/p>\n
1.3 “CONTRACT SUM” shall mean:<\/p>\n
( ) Lump Sum. The sum of _____________ Dollars
\n($_____________), subject to additions and deductions as provided in the
\nContract Documents.<\/p>\n
( ) Hourly Rate as set forth in the attached ADDENDUM 1,
\nsubject to additions and deductions as provided in the Contract Documents.<\/p>\n
( ) In accordance with the fees described in ADDENDUM 1,
\nsubject to additions and deductions as provided in the Contract Documents.<\/p>\n
1.4 “PROJECT” shall mean Work at the following location(s): ____________<\/p>\n
______________________________________________________________________________.<\/p>\n
The Legal Description for the location(s) is set forth on Exhibit 1.<\/p>\n
1.5 “INFORMATION ON PROJECT” this Agreement is for:<\/p>\n
Project or Contract Name: _____________<\/p>\n
Owner’s Contract Number: _____________<\/p>\n
1<\/p>\n
Owner’s Assigned Job Number: _____________<\/p>\n
1.6 “SUBSTANTIAL COMPLETION DATE” shall mean: _________________________.<\/p>\n
1.7 “MILESTONE DATES” shall mean: _______________________________________<\/p>\n
_______________________________________<\/p>\n
_______________________________________<\/p>\n
_______________________________________<\/p>\n
1.8 “OWNER’S REPRESENTATIVE” for the Project is: __________________
\n(if different than set forth in the Construction Agreement)
\n __________________<\/p>\n
__________________<\/p>\n
__________________<\/p>\n
1.9 “CONTRACTOR’S REPRESENTATIVE” for the Project is __________________
\n(if different that set forth in the Construction Agreement)
\n __________________<\/p>\n
__________________<\/p>\n
__________________<\/p>\n
1.10 “A\/E” for the Project is: __________________
\n(if different that set forth in the Construction Agreement)
\n __________________<\/p>\n
__________________<\/p>\n
__________________<\/p>\n
1.11 “CONTRACT DOCUMENTS” shall mean this Work Authorization Form, the
\nConstruction Agreement, the General Conditions, any special supplementary or
\nother conditions as set forth on Exhibit 2 (collectively “Special
\nConditions”), the Drawings, the Specifications, all Addenda (except portions
\nthereof relating purely to the bidding form or bidding procedure), all
\nmodifications and all other documents enumerated on Exhibit 3 attached
\nhereto. The Contract Documents collectively form the Contract and are fully
\napart thereof as if attached to this Work Authorization Form or repeated
\nherein.<\/p>\n
ARTICLE II
\n BONDING<\/p>\n
2.1 A Payment Bond is required as set forth in Exhibit 4.<\/p>\n
2.2 A Performance Bond is required as set forth in Exhibit 5.<\/p>\n
ARTICLE III
\n DELAY DAMAGES<\/p>\n
3.1 Delay Damages pursuant to Section 8.3.3 of the General Conditions of
\nthe Contract for Construction shall be _____________ Dollars ($_____________)
\nfor each calendar day <\/p>\n
2<\/p>\n
for which Substantial Completion shall not have occurred on or before the
\nexpiration of the Contract Time.<\/p>\n
3.2 Delay Damages pursuant to Section 8.3.3 of the General Conditions of
\nthe Contract for Construction do not compensate Owner for any other damages
\nof any type or kind, including without limitation any damages related to or
\nin connection with Contractor’s failure to fully and properly perform the
\nContract Documents or any damages resulting from _____________.<\/p>\n
3.3 Pursuant to Section 8.3.5 of the General Conditions of the Contract
\nfor Construction, in addition to Delay Damages under Section 8.3.3 of the
\nGeneral Conditions of the Contract for Construction, Owner shall at all times
\nbe entitled to all of its remedies under the Contract Documents and at law
\nand in equity, including, without limitation, the recovery of damages related
\nto or in connection with Contractor’s failure to fully and properly perform
\nthe Contract Documents or any damages resulting therefrom.<\/p>\n
ARTICLE IV
\n MISCELLANEOUS<\/p>\n
4.1 A fully executed copy of this Work Authorization hereby authorizes
\nthe Contractor to proceed with the Work as set forth herein and described in
\nthe Contract Documents.<\/p>\n
4.2 By executing this document, Contractor acknowledges that – for the
\npurposes of any applicable Mechanics Lien Law – the Project described in this
\ndocument constitutes a separate work of improvement from other Projects
\ndescribed in other Work Authorizations issued pursuant to the Construction
\nContract.<\/p>\n
4.3 Contractor shall inform all its consultants, suppliers and other
\nagents: (i) that the Project described in this Authorization constitutes a
\nseparate work of improvement from other Projects on which they may have
\nperformed Work for Contractor pursuant to the Contract, (ii) that they must
\nfile a new Preliminary Notice to be entitled to lien rights on account of
\nWork on the Project described in this Work Authorization and (iii) Owner may
\nfile a separate Notice of Completion for the Project described herein at
\ncompletion of any construction\/installation of Work on this Project.<\/p>\n
4.4 Contractor shall provide Owner with subcontractors’ and
\nmaterialmans’ acknowledgments, which indicate that they have been so informed.<\/p>\n
4.5 This Work Authorization sets forth the terms and conditions for the
\nProject set forth herein only. The terms and conditions for other continuing
\n(on-call) Work on multiple projects or continuing (on-call) services shall be
\nset forth in separate Work Authorization form(s).<\/p>\n
3<\/p>\n
4.6 Except as set forth herein or as a necessary corollary to this Work
\nAuthorization, all terms, conditions and promises of the Construction
\nAgreement not inconsistent with the terms, conditions and provisions of this
\nWork Authorization shall remain in full force and effect and are hereby
\nreaffirmed by the parties. The terms used herein but not defined in the
\nforegoing Work Authorization shall have all of the meanings ascribed to such
\nterms in the Construction Agreement. This Work Authorization may be executed
\nin multiple counterparts.<\/p>\n
OWNER: CONTRACTOR:<\/p>\n
———————————- ———————————–
\nBy: By:
\n ——————————- ——————————–
\nTitle: Title:
\n —————————- —————————–
\nDate: Date:
\n —————————– ——————————<\/p>\n
4<\/p>\n
LIST OF EXHIBITS<\/p>\n
EXHIBIT 1 – Legal Description<\/p>\n
EXHIBIT 2 – Special Conditions<\/p>\n
EXHIBIT 3 – List of Contract Documents<\/p>\n
EXHIBIT 4 – Payment Bond<\/p>\n
EXHIBIT 5 – Performance Bond<\/p>\n
ADDENDUM 1 – Hourly Rate or Fee Schedule, if applicable<\/p>\n
5<\/p>\n
EXHIBIT 1<\/p>\n
LEGAL DESCRIPTION<\/p>\n
The Legal Description is bound within this Agreement and made a part of the
\nContract Documents between Owner and Contractor.<\/p>\n
6<\/p>\n
EXHIBIT 2<\/p>\n
SPECIAL CONDITIONS<\/p>\n
[A. Materials purchased by Owner<\/p>\n
Certain Materials specified in the Contract Documents and to be incorporated
\ninto the Work have been purchased by Owner. The cost for loading, transporting
\nand unloading these Materials at the Project site are included in the Contract
\nSum. The list of materials purchased by the Owner is bound within this Agreement
\nand made apart of the Contract Documents between Owner and Contractor.]<\/p>\n
7<\/p>\n
EXHIBIT 3<\/p>\n
LIST OF CONTRACT DOCUMENTS<\/p>\n
8<\/p>\n
EXHIBIT 4<\/p>\n
PAYMENT BOND<\/p>\n
(If this Agreement is for continuing (on-call) Work on multiple projects
\n or continuing (on-tall) services, a separate Payment Bond shall
\n be issued for each job specific project or service)<\/p>\n
KNOW ALL MEN BY THESE PRESENTS, That we _____________ as Principal
\n(“Contractor”) and as Surety, are held and firmly bound unto _____________ as
\nObligee (“Owner”), in the penal sum of _______________________________ DOLLARS
\n($_____________) for the payment of which sum we jointly and severally bind
\nourselves, our heirs, assigns, executors, administrators and successors,
\nfirmly by these presents.<\/p>\n
THE CONDITION of the obligation is such that, whereas Contractor has entered
\ninto a Contract with Owner dated _____________ which Contract is hereto
\nattached and expressly made a part hereof to perform the following work:<\/p>\n
NOW, THEREFORE, if the Contractor shall pay promptly and in full the claims
\nof all persons, firms, partnerships, corporations or others, supplying labor,
\nmaterial, services, utilities or equipment in connection with the prosecution
\nof the work provided for in the Contract and any and all modifications,
\nadditions or alterations of the Contract that may hereafter be made, and
\nshall fully indemnify and hold harmless the Owner from all loss, liability
\ncosts, damage penalty and attorney’s fees or expenses for all taxes,
\ninsurance premiums, any and all applicable contributions, allowances or other
\npayments or deductions however termed, required by statute or labor union
\nagreement, including voluntary payment thereof by the Owner necessary to
\ninsure orderly prosecution of work or other items or services in connection
\nwith the Contract to be supplied or performed which Owner may suffer by
\nreason of failure to do so and shall fully reimburse and repay the Owner all
\noutlay and expense which the Owner may incur in making good any such failure,
\nthen this obligation shall be void; otherwise, it shall remain in full force
\nand effect.<\/p>\n
The Surety and the Contractor further agree that any changes, modifications,
\nadditions or alterations which may be made in the terms of the Contract or in
\nthe scope or character of the work to be done thereunder, or any extensions
\nof the Contract or in due time for completion thereof any change in the
\nmanner, time or amount of a payment as provided therein, or other forbearance
\non the part of either the Owner or Contractor to the other, shall not in any
\nway release the Contractor and the Surety, or either of them, their heirs,
\nassigns, executors, administrators and successors from their liability
\nthereunder, nor affect the obligations of any of them hereunder, notice to
\nSurety of any such changes, modifications, additions, extensions or
\nforbearance being hereby expressly waived by the Surety.<\/p>\n
9<\/p>\n
The Surety and the Contractor further agree that this bond shall insure to
\nthe benefit of, and may be sue directly upon by any person, firm or
\ncorporation furnishing labor, material services, utilities or equipment, in
\nthe prosecution of the work provided for in the Contract, or any
\nmodifications, additions or alterations thereto, or who has the right to
\nestablish a lien or claim against Owner or Owner’s property, premises or
\nimprovements or any funds accrued, or to accrue, from Owner.<\/p>\n
The sum of this Payment Bond is in addition to the sum of the Performance
\nBond being executed concurrently herewith.<\/p>\n
IN WITNESS HEREOF, the parties have executed this instrument under their
\nseveral seals this _______ day of _____________, 19__.<\/p>\n
____________________________________ ________________________________________
\nCONTRACTOR CORPORATE SURETY<\/p>\n
____________________________________ ________________________________________
\nAddress Address<\/p>\n
____________________________________ ________________________________________<\/p>\n
By:_________________________________ By:_____________________________________
\n (SEAL) (SEAL)<\/p>\n
10<\/p>\n
EXHIBIT 5<\/p>\n
PERFORMANCE BOND<\/p>\n
(If this Agreement is for continuing (on-call) Work on multiple projects
\n or continuing (on-call) services, a separate Performance Bond
\n shall be issued for each job specific project or service)<\/p>\n
KNOW ALL MIEN BY THESE PRESENTS, That we _____________ as Principal
\n(“Contractor”) and as Surety, are held and firmly bound unto _____________ as
\nObligee (“Owner”), in the penal sum of __________________________
\nDOLLARS($_____________) for the payment of which sum we jointly and severally
\nbind ourselves, our heirs, assigns,. executors, administrators and successors
\nfirmly by these presents.<\/p>\n
THE CONDITION of the obligation is such that, whereas Contractor has entered
\ninto a Contract with Owner dated ______________ which Contract is hereto
\nattached and expressly made a part hereof to perform the following work:<\/p>\n
NOW, THEREFORE, if the Contractor shall well and truly perform and fulfill
\nall the undertakings, covenants, terms, conditions and agreements of the
\nContract and any extensions thereof that may be granted by the Owner, and
\nduring the term of any warranty required under the Contract, and shall also
\nwell and truly perform and fulfill all the undertakings, covenants, terms,
\nconditions and agreements of any and all modifications, additions or
\nalterations of the Contract that may hereafter be made, and shall also fully
\nindemnify and hold harmless the Owner from all loss, liability costs, damage
\npenalty and attorneys’ fees which Owner may incur by reason of failure to
\nwell and truly keep and perform each, every and all of the terms and
\nconditions of said Contract as modified, amended, altered or added to on the
\npart of Contractor to be kept and performed, including but not limited to
\ncompletion within the time specified of all work covered by said Contract,
\nperformance of all obligations, and guarantees of Contractors and shall fully
\nreimburse and repay the Owner all outlay and expense which the Owner may
\nincur in making good any such failure, then this obligation shall be void;
\notherwise it shall remain in fun force and effect.<\/p>\n
The Surety further agrees that whenever Contractor shall be, and is declared
\nby Owner to be, in default under the Contract (and said default shall be
\nconstrued to be any breach of any of the provisions of the Contract on the
\npart of the Contractor) the Surety shall. promptly remedy the default, or
\nwill complete the Contract in accordance with its terms and conditions and
\nshall fully indemnify, defend, and hold harmless the Owner from all costs,
\ndamages and expenses which may arise thereafter (including reasonable
\nattorney’s fees) and which the Owner may suffer by reason of Surety’s failure
\nto do so.<\/p>\n
11<\/p>\n
The Surety and the Contractor further agree that any changes, modifications,
\nadditions or alterations which may be made in the terms of the Contract or in
\nthe scope or character of the work to be done thereunder, or any extensions
\nof the Contract, or in the time for completion thereof, any change in the
\nmanner, time or amount or payment as provided therein, or other forbearance
\non the part of either the Owner or Contractor to the other, shall not in any
\nway release the Contractor and the Surety, or either of them, their heirs,
\nassigns, executors, administrators and successors, from their liability
\nhereunder, nor affect the obligations of any of them hereunder, notice to
\nSurety of any such modifications, additions, extensions or forbearance being
\nhereby expressly waived by the Surety.<\/p>\n
The sum of this Performance Bond is in addition to the sum of the Payment
\nBond being executed concurrently herewith.<\/p>\n
IN WITNESS WHEREOF, the parties have executed this instrument under their
\nseveral seals this _______ day of _____________, 19__.<\/p>\n
____________________________________ ________________________________________
\nCONTRACTOR CORPORATE SURETY<\/p>\n
____________________________________ ________________________________________
\nAddress Address<\/p>\n
____________________________________ ________________________________________<\/p>\n
By:_________________________________ By:_____________________________________
\n (SEAL) (SEAL)<\/p>\n
12<\/p>\n
ADDENDUM 1<\/p>\n
HOURLY RATE OR FEE SCHEDULE<\/p>\n
13<\/p>\n
EXHIBIT D<\/p>\n
COMMENCEMENT DATE MEMORANDUM<\/p>\n
THIS MEMORANDUM is entered into as of ____________ __, 199_ by and
\nbetween OAIC Bush Street, LLC., (“Landlord”), and ________________________, a
\n______________ (“Tenant”), with respect to that certain Office Lease dated as of
\n____________ __, 1999 (the “Lease”) respecting certain premises (the “Premises”)
\nlocated at 225 Bush Street, San Francisco, California.<\/p>\n
Pursuant to Paragraph 2(a) of the Lease, Landlord and Tenant hereby
\nconfirm and agree that the Rent Commencement Date (as defined in the Lease) is
\n____________ __, 199_ and that the Expiration Date (as defined in the Lease) is
\n__________________.<\/p>\n
This Memorandum supplements, and shall be a part of, the Lease.<\/p>\n
IN WITNESS WHEREOF, Landlord and Tenant have executed and delivered
\nthis Memorandum as of the day and year first above written.<\/p>\n
TENANT: LANDLORD:<\/p>\n
\n\nXoom.com, Inc., OAIC Bush Street, LLC,
\n a Delaware limited liability company
\n
\n By: ___________________________________ By:_________________________________<\/p>\n Name:__________________________________ Name:_______________________________<\/p>\n
Its:___________________________________ Its:________________________________
\n<\/c><\/s><\/caption>\n<\/table>\n
D-1<\/p>\n
EXHIBIT E<\/p>\n
TENANT ESTOPPEL CERTIFICATE<\/p>\n
TO: ___________________________
\n ___________________________
\n ___________________________
\n Attn: _____________________<\/p>\n
Re: Lease, dated as of ___________, 19__, between ________________,
\n a ___________, as tenant (“Tenant”), and ___________________, a
\n _______________ , as landlord (“Landlord”), covering certain
\n premises known by the street address _____________, in the City
\n of _______________, County of ______________, State of
\n _____________ (the “Leased Premises”), as amended as noted on
\n attached Schedule A (collectively, the “Lease”)<\/p>\n
Gentlemen:<\/p>\n
The undersigned Tenant hereby represents, warrants and certifies to
\n_______________________ (“[LANDLORD\/BUYER\/LENDER]”) that:<\/p>\n
1. The Lease has not been modified, changed, altered or amended in
\nany respect, either orally or in writing, except as may be indicated on
\nSchedule A annexed hereto, and constitutes the entire agreement between
\nTenant and Landlord affecting Tenant leasing of the Leased Premises. A true
\nand correct copy of the Lease is attached as Schedule B. The Lease is in full
\nforce and effect and is not subject to any contingencies or conditions not
\nset forth in the Lease.<\/p>\n
2. The term of the Lease commenced on __________________ and will
\nexpire on __________________; the Tenant has ___ successive options to renew
\nthe Lease term, each for an additional period of ___ years.<\/p>\n
3. The monthly base rent payable by Tenant under the Lease is
\n$_______________. Tenant has paid all fixed and additional rent and other
\nsums which are due and payable under the Lease through the date hereof, and
\nTenant has not made and will not make any prepayments of fixed rent for more
\nthan one month in advance. There are no presently unexpired rental
\nconcessions or abatements due under the Lease except as set forth on Schedule
\nA annexed hereto. Tenant has no credits, offsets, abatements, defenses,
\ncounterclaims or deductions against any rental or other payments due under
\nthe Lease or with respect to its <\/p>\n
performance of the other terms and conditions of the Lease, and has asserted
\nno claims against Landlord.<\/p>\n
4. Tenant has paid to Landlord as a security deposit in the amount
\nof $___________. Tenant has not made any other the payments to Landlord as a
\nsecurity deposit, advance or prepaid rent.<\/p>\n
5. Landlord has completed, and, if required under the Lease, paid
\nfor, any and all tenant work required under the Lease and Tenant has accepted
\nthe Leased Premises. Tenant is not entitled to any further payment or credit
\nfor tenant work.<\/p>\n
6. To Tenant’s best knowledge, Landlord is not in default in the
\nperformance of any of the terms of the Lease, nor is there now any fact or
\ncondition which, with notice or lapse of time or both, will become such a
\ndefault. Tenant has not delivered to Landlord any notice of default with
\nrespect to the Landlord’s obligations under the Lease.<\/p>\n
7. Tenant is in actual possession of the entire Leased Premises
\nand, to Tenant best knowledge, is not in any respect in default under any of
\nthe terms and conditions of the Lease, nor is there now any fact or condition
\nwhich, with notice or lapse of time or both, will become such a default.
\nTenant has not received from Landlord any notice of default with respect to
\nthe Tenant obligations under the Lease.<\/p>\n
8. Tenant has not assigned, transferred, mortgaged or otherwise
\nencumbered its interest under the Lease, nor subleased any of the Leased
\nPremises, nor permitted any person or entity to use the Leased Premises,
\nexcept as otherwise indicated on Schedule A annexed hereto.<\/p>\n
9. Except as expressly provided in the Lease, Tenant<\/p>\n
(i) does not have any right to renew or extend the term of the
\n Lease,<\/p>\n
(ii) does not have any right to cancel or surrender the Lease
\n prior to the expiration of the term of the Lease,<\/p>\n
(iii) does not have any option or rights of first refusal or
\n first offer to purchase or lease all or any part of the Leased Premises
\n or the real property of which the Leased Premises are a part,<\/p>\n
(iv) does not have any right, title or interest with respect
\n to the Leased Premises other than as lessee under the Lease, and<\/p>\n
(v) does not have any right to relocate into other property
\n owned by Landlord or any of Landlord’s affiliates.<\/p>\n
10. There has not been filed by or against Tenant a petition in
\nbankruptcy, voluntary or otherwise, any assignment for the benefit of
\ncreditors, any petition seeking reorganization or arrangement under the
\nbankruptcy laws of the United States, or any state thereof, or any other
\naction brought under said bankruptcy laws with respect to Tenant<\/p>\n
11. If Tenant is required to provide insurance coverage under the
\nLease, Tenant has not given or received written notice that Tenant insurance
\ncoverage will be canceled or will not be renewed.<\/p>\n
12. To Tenant’s best knowledge, all systems, elements and
\ncomponents of the Leased Premises are in good working order and repair and
\nsound operating condition. To Tenant’s best knowledge, Tenant’s use and
\noccupancy of the Leased Premises complies with all applicable building,
\nzoning, land use, environmental, anti-pollution, health, fire, safety, access
\naccommodations for the physically handicapped, subdivision, energy and
\nresource conservation and similar laws, statutes, rules, regulations and
\nordinances, and all covenants, conditions and restrictions applicable to the
\nLeased Premises. Tenant has not received any notice, citation or other claim
\nalleging any violation of any such law, statute, rule, regulation, ordinance,
\ncovenant, condition or restriction.<\/p>\n
13. To the best knowledge of Tenant, any and all brokerage and
\nleasing commissions relating to and\/or resulting from Tenant’s execution and
\ndelivery of the Lease and occupancy of the Leased Premises have been paid in
\nfull.<\/p>\n
14. The individual executing this Tenant Estoppel Certificate on
\nbehalf of Tenant represents and warrants that __he has the power and the
\nauthority to execute this Tenant Estoppel Certificate on behalf of Tenant.<\/p>\n
15. [LANDLORD\/BUYER\/LENDER] has advised Tenant that
\n[LANDLORD\/BUYER\/LENDER] will rely upon the truth of this certification in
\nacquiring the Leased Premises. This Tenant Estoppel Certificate shall inure
\nto the benefit of [LANDLORD\/BUYER\/LENDER] and its respective nominees,
\nsuccessors, assigns, participants and designees and shall be binding upon
\nTenant and its successors and assigns.<\/p>\n
Dated this ____ day of _______________, 199_.<\/p>\n
Tenant<\/p>\n
_________________, a ____________<\/p>\n
By: _____________________________<\/p>\n
EXHIBIT F<\/p>\n
SUBORDINATION, ATTORNEMENT AND NONDISTURBANCE AGREEMENT<\/p>\n
F-1<\/p>\n
——————————————————————————-<\/p>\n
——————————————————————————-<\/p>\n
SUBORDINATION, ATTORNMENT AND
\n NONDISTURBANCE AGREEMENT<\/p>\n
BETWEEN<\/p>\n
SALOMON BROTHERS REALTY CORP.
\n (“BENEFICIARY”)<\/p>\n
AND<\/p>\n
XOOM.COM, INC.
\n (“TENANT”)<\/p>\n
DATED AS OF AUGUST ______, 1999<\/p>\n
RECORD AND RETURN TO:<\/p>\n
Latham & Watkins
\n 885 Third Avenue, Suite 1000
\n New York, New York 10022-4802
\n Attention: Brian Krisberg, Esq.<\/p>\n
(L&W File No. 024582-0091)<\/p>\n
——————————————————————————-<\/p>\n
——————————————————————————-<\/p>\n
SUBORDINATION, ATTORNMENT AND
\n NONDISTURBANCE AGREEMENT<\/p>\n
THIS AGREEMENT, made as of August _____, 1999 (the “EFFECTIVE
\nDATE”), by and between SALOMON BROTHERS REALTY CORP. a New York corporation
\nhaving an address at 388 Greenwich Street, 11th Floor, New York, New York 10013
\n(“BENEFICIARY”), and XOOM.COM, INC., a Delaware corporation, having an address
\nat 300 Montgomery Street, Suite 300, San Francisco, California 94104 (which
\naddress is subject to change on the 19th Floor Term Commencement Date as set
\nforth in the Lease and more fully provided for in Paragraph 20 below)
\n(“TENANT”).<\/p>\n
W I T N E S S E T H :<\/p>\n
WHEREAS, Beneficiary is the owner and holder of that certain
\nDeed of Trust, Assignment of Leases and Rents, Security Agreement and Fixture
\nFiling, dated as of April 4, 1998, made by OAIC Bush Street, LLC, a Delaware
\nlimited liability company, as trustor, to Chicago Title Insurance Company, as
\ntrustee, for the benefit of Beneficiary, and recorded in the Office of the Clerk
\nof San Francisco County on ____________________, 1998 as Document No.
\n_______________ (said deed of trust, as the same may hereafter be amended,
\nincreased, renewed, refinanced, consolidated, restated, replaced, combined,
\nsupplemented, substituted, spread, severed, extended and\/or otherwise modified,
\nbeing hereinafter collectively, referred to as the “DEED OF TRUST”), encumbering
\nthe land located in the City and County of San Francisco, State of California,
\nwhich land is more particularly described on EXHIBIT “A” annexed hereto and made
\na part hereof, and the buildings, improvements, and other items of property more
\nfully described in the Deed of Trust (such land, buildings, improvements and
\nother property being hereinafter referred to collectively as the “MORTGAGED
\nPREMISES”);<\/p>\n
WHEREAS, Tenant has entered into a lease with the aforesaid
\nOAIC Bush Street, LLC, as landlord (“LANDLORD”), dated as of August ______, 1999
\n(the “LEASE”), by which Landlord demised to Tenant a portion of the Mortgaged
\nPremises (the “LEASED PREMISES”);<\/p>\n
WHEREAS, a true and complete copy of the Lease has been
\ndelivered to Beneficiary by Tenant, the receipt of which is hereby acknowledged;<\/p>\n
WHEREAS, Beneficiary, as a condition to making the loan(s)
\nsecured by the Deed of Trust, required that all leases affecting the Mortgaged
\nPremises be and continue to be subordinate in every respect to the Deed of
\nTrust;<\/p>\n
WHEREAS, Beneficiary and Tenant desire to confirm the
\nsubordination of the Lease to the Deed of Trust and to provide for the
\nnondisturbance of Tenant by Beneficiary as set forth herein;<\/p>\n
WHEREAS, the Work Letter, as defined in the Lease, requires
\nLandlord to contribute certain funds toward Tenant’s initial improvements, as
\nmore fully described in such Work Letter (the “LANDLORD’S TI CONTRIBUTION”);<\/p>\n
WHEREAS, the Lease requires Tenant to provide a security
\ndeposit in the form of a letter of credit in the initial amount of $4,500,000,
\nsubject to reduction from time to time in accordance with the Lease (the “LETTER
\nOF CREDIT”), which Tenant is simultaneously herewith delivering to Beneficiary,
\nand which Letter of Credit is an Acceptable Letter of Credit, as defined below;<\/p>\n
NOW, THEREFORE, in consideration of the covenants and
\nagreements contained herein, and intending to be legally bound, Beneficiary and
\nTenant agree as follows:<\/p>\n
1. The Lease, its terms and conditions, and the lien thereof
\n(if any) now are and shall at all times continue to be subject and
\nsubordinate to the Deed of Trust (including all advances made thereunder),
\nand the lien thereof. The provisions of this Agreement shall be
\nself-operative, and no further instrument shall be necessary to effectuate
\nthe terms hereof. Nevertheless, Tenant, upon request, shall execute and
\ndeliver any certificate or other instrument that Beneficiary may reasonably
\nrequest to confirm the subordination by Tenant referred to above.<\/p>\n
2. Tenant certifies that (a) the Lease is presently in full
\nforce and effect and unmodified, and represents the entire agreement between
\nLandlord and Tenant with respect to the Mortgaged Premises or any portion
\nthereof; (b) no rental payable under the Lease has been paid more than one
\n(1) month in advance of its due date; (c) no event has occurred that
\nconstitutes a default under the Lease by Landlord or Tenant or that, with the
\ngiving of notice, the passage of time, or both, would constitute such a
\ndefault; (d) as of the Effective Date, Tenant has no charge, defense, lien,
\nclaim, counterclaim, offset or setoff under the Lease or against any amounts
\npayable thereunder; and (e) all conditions to the effectiveness or continuing
\neffectiveness of the Lease required to be satisfied as of the Effective Date
\nhave been satisfied.<\/p>\n
3. The terms and conditions of the Lease constitute a primary
\ninducement to Beneficiary to enter into this Agreement. Accordingly, Tenant
\nagrees that Tenant shall not cancel, surrender, terminate or assign (other
\nthan an assignment that does not require Landlord’s consent under the Lease),
\nor enter into any agreement to cancel, surrender, terminate or assign (other
\nthan an assignment that does not require Landlord’s consent under the Lease),
\nthe Lease in a manner or circumstance not expressly provided for under the
\nLease, without the prior written approval of Beneficiary. Any cancellation,
\nsurrender, termination or assignment of the Lease made in a manner or
\ncircumstance not expressly permitted under the Lease without Beneficiary’s
\nprior written approval shall not bind Beneficiary or any Successor (as
\ndefined below). Tenant shall not amend or modify the Lease, or agree to amend
\nor modify the Lease, without Beneficiary’s consent, except that, as between
\nBeneficiary and Tenant, Beneficiary’s prior approval shall not be required
\nfor any amendment to the Lease that does not (a) modify the rent, the term,
\nLandlord’s obligations, or any other material term of the Lease, or (b)
\notherwise materially decease Tenant’s obligations or Landlord’s rights under
\nthe Lease. The preceding sentence is not intended to limit any of Landlord’s
\ncovenants relating to the Lease under the Deed of Trust or under any document
\nsecured by the Deed of Trust.<\/p>\n
2<\/p>\n
4. In the event of any default on the part of Landlord,
\narising out of or accruing under the Lease, whereby the validity or the
\ncontinued existence of the Lease might be impaired or terminated by Tenant,
\nor Tenant might have a claim for partial or total eviction or abatement of
\nrent, Tenant shall not pursue any of its rights with respect to such default
\nor claim, and no notice of termination of the Lease as a result of such
\ndefault shall be effective, unless and until Tenant has given written notice
\nof such default or claim to Beneficiary at the address set forth herein, or
\nBeneficiary’s successor or assign whose name and address previously shall
\nhave been furnished to Tenant in writing (but not later than the time that
\nTenant notifies Landlord of such default or claim) and granted to Beneficiary
\na reasonable time, which shall be not less than the greater of (i) the period
\nof time granted to Landlord under the Lease, or (ii) thirty (30) days, after
\nthe giving of such notice by Tenant to Beneficiary, to cure or to undertake
\nthe elimination of the basis for such default or claim, after the time when
\nLandlord shall have become entitled under the Lease to cure the cause of such
\ndefault or claim; it being expressly understood that (a) if such default or
\nclaim cannot reasonably be cured within such cure period, Beneficiary shall
\nhave such additional period of time to cure same as shall be reasonably
\nnecessary, so long as it continues to pursue such cure with reasonable
\ndiligence and continuity, and (b) Beneficiary’s right to cure any such
\ndefault or claim shall not be deemed to create any obligation for Beneficiary
\nto cure or to undertake the elimination of any such default or claim.
\nNotwithstanding anything to the contrary in the Lease, Tenant shall not
\nterminate the Lease on account of any default or breach by Landlord in
\nfunding the Landlord’s TI Contribution, but this shall not limit (a) Tenant’s
\nother rights and remedies against Landlord in such event or (b) Tenant’s
\nright of offset as against Successor, as more fully provided for below. This
\nparagraph shall not limit Tenant’s rights under the Lease to give notice of
\nand thereafter cure any Water Leak or Communications Failure, and it shall
\nnot be necessary for Tenant to provide Beneficiary with a copy of any Water
\nLeak Notice or Communication Failure Notice before exercising Tenant’s right
\nto cure any Water Leak or Communication Failure as described in paragraph 8
\nof the Lease. Before Tenant may exercise any right of offset provided for in
\nthe Lease on account of any Water Leak or Communication Failure, however,
\nTenant shall provide Beneficiary with simultaneous copies of Tenant’s demand
\nfor reimbursement and all subsequent notices to Landlord contemplated by
\nparagraph 8 of the Lease.<\/p>\n
5. As long as (i) the Lease shall have been executed and
\ndelivered; (ii) Tenant shall have delivered the Letter of Credit to
\nBeneficiary; (iii) the Lease shall be in full force and effect, and (iv)
\nTenant is in compliance with the terms of this Agreement and no default by
\nTenant exists under the Lease which continues after receipt of written notice
\nthereof, to the extent Tenant is expressly entitled to same under the Lease,
\nbeyond applicable cure periods (conditions “i” through “iv,” collectively,
\nthe “NONDISTURBANCE CONDITIONS”), Beneficiary shall not name Tenant as a
\nparty defendant in any action for foreclosure of the Deed of Trust or other
\nenforcement thereof (unless required by law), nor shall the Lease be
\nterminated by Beneficiary in connection with or by reason of foreclosure or
\nother proceedings for the enforcement of the Deed of Trust or by reason of a
\ntransfer of Landlord’s interest in the Mortgaged Premises or under the Lease
\npursuant to a conveyance in lieu of foreclosure (or similar device) (any of
\nthe foregoing, a “FORECLOSURE”), nor shall Tenant’s use or possession of the
\nLeased Premises be interfered with or disturbed by Beneficiary, unless
\nLandlord would have had such right if the Deed of Trust had not been made.<\/p>\n
3<\/p>\n
6. If Landlord’s interest in the Mortgaged Premises or under
\nthe Lease is terminated by reason of a Foreclosure (the party succeeding to
\nthe Landlord’s interest in the Mortgaged Premises being hereinafter refereed
\nto, together with such party’s successors and assigns, as “SUCCESSOR”), then
\nupon Successor’s succeeding to Landlord’s interest in the Mortgaged Premises
\nor under the Lease, Tenant shall be bound to Successor, and, except as
\nprovided in this Agreement, Successor shall be bound to Tenant, under all the
\nterms, covenants and conditions of the Lease for the balance of the term
\nthereof remaining, with the same force and effect as if Successor were
\nLandlord, and Tenant does hereby agree to attorn to Successor, including
\nBeneficiary if it be the Successor, as Tenant’s landlord; affirm Tenant’s
\nobligations under the Lease; and make payments of all sums due under the
\nLease to Successor. Such attornment, affirmation and agreement shall be
\neffective and self-operative without the execution of any further
\ninstruments. Notwithstanding the foregoing, Tenant shall not be obligated to
\nattorn to Successor unless and until Successor shall, if requested by Tenant,
\nhave confirmed in writing (pursuant to documentation reasonably satisfactory
\nto Successor) that Successor has succeeded to and assumed all obligations of
\nLandlord under the Lease (including obligations relating to the Letter of
\nCredit but excluding obligations relating to Landlord’s TI Contribution,
\nsubject to Tenant’s right of offset as provided for herein), subject however
\nto Section 10 of this Agreement. Tenant waives the provisions of any statute
\nor rule of law now or hereafter in effect that may give or purport to give
\nTenant any right or election to terminate or otherwise adversely affect the
\nLease or the obligations of Tenant thereunder by reason of any Foreclosure.<\/p>\n
7. As an additional material inducement to Beneficiary to
\nenter into this Agreement, Tenant agrees that if Landlord is the subject of
\nany proceeding (a “BANKRUPTCY PROCEEDING”) under the provisions of the
\nBankruptcy Code, 11 U.S.C. Section 101 ET SEQ., as in effect, or as hereafter
\namended, or under the provisions of any successor statute thereto
\n(collectively, the “CODE”), then Tenant shall take all actions reasonably
\nnecessary to retain possession of the Leased Premises (whether or not
\nLandlord, pursuant to the Code or otherwise, attempts to reject the Lease) so
\nas to enable Tenant to continue to lease and occupy the Leased Premises on
\nall or substantially all terms of the Lease. During any Bankruptcy Proceeding
\nTenant shall, unless the Lease has already been terminated in accordance with
\nits terms and the terms of this Agreement: (i) not terminate the Lease except
\nin accordance with the Lease and this Agreement; (ii) not give up possession
\nof the Leased Premises (if Tenant is already in such possession); and (iii)
\nif Tenant is not yet in possession of the Leased Premises prior to the
\ncommencement of the Bankruptcy Proceeding, then Tenant shall take all steps
\nreasonably necessary to cooperate with Beneficiary in attempting to obtain
\npossession of the Leased Premises for Tenant provided that (a) Beneficiary
\nexercises its reasonable efforts (excluding the making of any payments to, or
\nfor the benefit of, Landlord or its estate, or to any other party, which
\npayments Beneficiary is not otherwise required to make under this Agreement)
\nto obtain possession of the Leased Premises for Tenant, and (b) Beneficiary
\nnotifies Tenant that Beneficiary reasonably believes that it will be able to
\nobtain such possession for Tenant on or before a date that is within one
\nhundred twenty (120) days after such proceeding commenced. If Tenant does not
\nobtain possession of the Leased Premises within one hundred twenty (120) days
\nafter commencement of such proceeding, or Beneficiary fails to comply with
\nclauses (a) and (b) above, then Tenant shall have no further obligations
\nunder this paragraph to cooperate with Beneficiary in obtaining possession of
\nthe Leased Premises and Tenant may terminate the Lease.<\/p>\n
4<\/p>\n
8. If (i) Landlord becomes the subject of a Bankruptcy
\nProceeding, and Landlord, as debtor-in-possession, or any trustee, as
\nsuccessor-in-interest to Landlord, obtains an order of the bankruptcy court
\nor other court of competent jurisdiction authorizing the rejection of the
\nLease in accordance with Section 365 of the Code, or the Lease is otherwise
\nterminated in such Bankruptcy Proceeding, and (ii) thereafter, Beneficiary or
\nany other person shall acquire title to the Mortgaged Premises through
\nForeclosure or by any other means (including a sale of the Mortgaged Premises
\npursuant to the Code), then the person so acquiring title to the Mortgaged
\nPremises shall also be a “SUCCESSOR” for all purposes of this Agreement. If
\nthe Lease is terminated or rejected in or as a result of a Bankruptcy
\nProceeding, then:<\/p>\n
A. Upon request made by Tenant to Successor within
\nthirty (30) days after Tenant receives notice from Successor that Successor
\nhas obtained title to the Mortgaged Premises, and provided that immediately
\nprior to such Lease rejection or termination the Nondisturbance Conditions
\nwere satisfied and at the time of such request Tenant is in possession of the
\nLeased Premises, Successor, if and to the extent that it has the legal right
\nand power to do so (without incurring any expenses or liabilities that are
\nnot reimbursed), shall enter into a new lease with Tenant upon the same terms
\nand conditions as were contained in the Lease, except that (x) the
\nobligations and liabilities of such Successor under any such new lease shall
\nbe subject to the terms and conditions of this Agreement, and (y) the
\nexpiration date of such new lease shall coincide with the original expiration
\ndate of the Lease (a “NEW LEASE”).<\/p>\n
B. Upon Successor’s written request of Tenant made
\nwithin sixty (60) days after Successor has acquired title to the Mortgaged
\nPremises, Tenant shall execute a New Lease with Successor, and shall attorn
\nto Successor, and Successor shall recognize Tenant, as tenant, so as to
\nestablish direct privity between Successor and Tenant.<\/p>\n
9. Notwithstanding anything to the contrary in the Lease, any
\nNew Lease, or this Agreement, any Successor shall not (a) be subject to any
\ncredits, offsets, defenses, claims, counterclaims or demands that Tenant
\nmight have against any prior landlord (including, without limitation,
\nLandlord), unless the same are expressly provided for in the Lease; (b) be
\nbound by any previous modification or amendment of the Lease (except as
\nexpressly provided in Section 3) or by any rent or additional rent that
\nTenant might have paid for more than one month in advance of its due date to
\nany prior landlord, unless such modification or prepayment shall have been
\nmade with Beneficiary’s prior written consent (except as expressly provided
\nin Section 3); (c) be liable for any accrued obligation, act or omission of
\nany prior landlord (including, without limitation, Landlord), whether prior
\nto or after Foreclosure; (d) be bound by any covenant to undertake or
\ncomplete any improvement to the Mortgaged Premises or the Leased Premises, to
\npay Landlord’s TI Contribution to Tenant, or to otherwise reimburse or pay
\nTenant for the cost of any improvements to the Mortgaged Premises or the
\nLeased Premises, but this shall not limit Tenant’s right of offset with
\nrespect to unpaid Landlord’s TI Contribution as provided for below; (e) be
\nrequired to account for any security deposit other than (i) the Letter of
\nCredit and (ii) any security deposit actually delivered to Successor; or (f)
\nbe required to abide by any provisions for the diminution or abatement of
\nrent, unless same are expressly provided for in the Lease. If Landlord is
\nobligated, but fails, to pay Landlord’s TI Contribution, then as Successor’s
\nsole liability and obligation on account of such failure by Landlord,
\nSuccessor shall allow Tenant to abate any rent otherwise payable under the
\nLease until such time as Tenant, through such <\/p>\n
5<\/p>\n
abatement, shall have recovered the entire amount that Landlord was obligated
\nto pay but did not on account of Landlord’s TI Contribution. Successor shall
\nhave no other liability or obligations to Tenant on account of any failure by
\nLandlord to pay Landlord’s TI Contribution. Notwithstanding the foregoing,
\nany Successor shall be subject to any claims of Tenant arising from any
\ndefault by Landlord under the express terms of the Lease (other than default
\nin payment of Landlord’s TI Contribution, which default is addressed
\nelsewhere in this Agreement) provided that such default is reasonably curable
\nby Beneficiary or Successor and then only to the extent that Tenant shall
\nhave promptly notified Beneficiary, pursuant to Section 3, of the (alleged)
\ndefault by Landlord and thereafter Beneficiary shall have failed to cure such
\ndefault when and as permitted by this Agreement; provided, however, that
\nunder such circumstances Successor’s obligation shall consist solely of
\nallowing Tenant the right to offset against rent to the extent of actual
\ndamages (as determined by a court) that accrued after the date of Tenant’s
\nnotice to Beneficiary and such liability shall in all events be subject to
\nSection 10.<\/p>\n
10. Notwithstanding anything to the contrary in this Agreement,
\nthe Lease, or any New Lease, if Successor acquires Landlord’s interest in the
\nMortgaged Premises, then Successor’s liability for its obligations under the
\nLease (or any New Lease) and this Agreement shall be limited to Successor’s
\ninterest in the Mortgaged Premises and the proceeds of sale and casualty
\ninsurance proceeds. Tenant shall not look to any other property or assets of
\nSuccessor or the property or assets of any of the partners, shareholders,
\ndirectors, officers and principals, direct and indirect, of Successor in
\nseeking either to enforce Successor’s obligations under the Lease (or any New
\nLease) and this Agreement or to satisfy a judgment for Successor’s failure to
\nperform such obligations.<\/p>\n
11. If and to the extent that the Lease or any provision of law
\nshall entitle Tenant to notice of any deed of trust, Tenant acknowledges and
\nagrees that this Agreement shall constitute said notice to Tenant of the
\nexistence of the Deed of Trust.<\/p>\n
12. This Agreement may not be modified except by an agreement
\nin writing signed by the parties hereto or their respective successors in
\ninterest. This Agreement shall inure to the benefit of and be binding upon
\nthe parties hereto (and shall benefit any Successor), and the heirs,
\nrepresentatives, successors and assigns of the foregoing.<\/p>\n
13. Nothing contained in this Agreement shall in any way impair
\nor affect the lien created by the Deed of Trust or modify the terms thereof.
\nBy executing and delivering this Agreement, Beneficiary shall not be deemed
\nto have (i) waived any default under the Deed of Trust, (ii) modified the
\nDeed of Trust in any manner, or (iii) except as expressly provided in Section
\n5, waived any rights or remedies it possesses under the Deed of Trust or
\notherwise.<\/p>\n
14. Tenant agrees and confirms that this Agreement satisfies
\nany condition or requirement in the Lease or otherwise relating to the
\ngranting of a nondisturbance agreement, including, without limitation, the
\nprovisions of the Article of the Lease entitled “Subordination and
\nNondisturbance.” Tenant further agrees that if there is any inconsistency
\nbetween the terms and provisions hereof and the terms and provisions of the
\nLease relating to nondisturbance by Beneficiary, the terms and provisions
\nhereof shall be controlling.<\/p>\n
6<\/p>\n
15. Tenant acknowledges that it has notice that the Lease and
\nthe rent and all other sums due thereunder have been assigned by Landlord to
\nBeneficiary. If Beneficiary notifies Tenant of Beneficiary’s election under
\nthe Deed of Trust or any other loan document to collect rent and all other
\nsums due under the Lease, and demands that Tenant pays same to Beneficiary (a
\n“REDIRECTION NOTICE”), Tenant agrees that it will honor such Redirection
\nNotice and pay its rent and all other sums due under the Lease directly to
\nBeneficiary or as directed by Beneficiary, notwithstanding any contrary
\nclaims, directions, or instructions by Landlord.<\/p>\n
16. Notwithstanding anything to the contrary in the Lease, the
\nLease is hereby modified as follows as it relates to the Letter of Credit:<\/p>\n
A. An “ACCEPTABLE ISSUER” means a commercial bank:
\n(a) that has an office in San Francisco, California, or New York, New York,
\nat which the Letter of Credit may be presented for payment; (b) whose
\ncommercial paper is rated P-1 or better by Moody’s (or, if Moody’s does not
\nrate such issuer’s commercial paper, then an equivalent rating from Standard
\n& Poor’s, Duff & Phelps, or Fitch); and (c) that is otherwise reasonably
\nsatisfactory to Beneficiary and Landlord.<\/p>\n
B. An “ACCEPTABLE LETTER OF CREDIT” means a Letter of
\nCredit that: (a) provides that it may be drawn upon by Beneficiary; (b)
\nprovides that Beneficiary may assign it to any assignee of the Loan, all
\nwithout charge to the assignor; (c) is issued by an Acceptable Issuer; (d) is
\notherwise reasonably satisfactory to Beneficiary in all respects; and (e)
\notherwise fully complies with the Lease.<\/p>\n
C. Any Letter of Credit must at all times be an
\nAcceptable Letter of Credit. Beneficiary may draw upon the Letter of Credit
\nif both of the following occur: (1) the issuer of the Letter of Credit ceases
\nto be an Acceptable Issuer for any reason; and (2) Beneficiary has not
\nreceived a replacement Acceptable Letter of Credit within 30 days after the
\noccurrence of “1.” Beneficiary shall hold the drawn funds in an
\ninterest-bearing account at a bank satisfactory to Beneficiary in all
\nrespects. Beneficiary shall notify Landlord and Tenant of the bank and bank
\naccount where such proceeds are held. Interest shall be released periodically
\nto Tenant and reported as Tenant’s income. Tenant shall deliver a “W-9” form
\nwith respect to such interest and if Tenant fails to do so, then the funds
\nshall be held in a non-interest-bearing account. If Beneficiary thereafter
\nreceives an Acceptable Letter of Credit, then Beneficiary shall return the
\nproceeds of the original Letter of Credit and all interest accrued thereon
\n(to the extent not previously released) to Tenant.<\/p>\n
D. To the extent that the Lease permits or requires
\nTenant to deliver to Landlord any extension, amendment, or replacement for
\nthe Letter of Credit, or documentation to restore the amount of the Letter of
\nCredit after the Letter of Credit has been drawn, or permits Tenant to
\ndeliver any document reducing the amount of the Letter of Credit (any of the
\nforegoing, an “LC MODIFICATION”), Tenant shall deliver such LC Modification
\nto Beneficiary (and simultaneously provide a copy of such LC Modification to
\nLandlord), when and as Tenant is required to deliver such LC Modification to
\nLandlord under the Lease. Delivery of an LC Modification to Landlord shall
\nnot be sufficient. If Beneficiary has not received any LC Modification when
\nand as Tenant is required to deliver it to Landlord under the Lease, then <\/p>\n
7<\/p>\n
Beneficiary may draw upon the entire Letter of Credit on Landlord’s behalf,
\nand hold the proceeds as the Security Deposit under the Lease in accordance
\nwith the terms of the Lease. Beneficiary shall not be bound by any LC
\nModification that reduces the amount of the Letter of Credit except for any
\nsuch reduction expressly permitted by the Lease.<\/p>\n
E. In addition to any right for Beneficiary to
\notherwise draw upon the Letter of Credit under this Agreement, to the extent,
\nand only to the extent, that the Lease permits Landlord to draw upon the
\nLetter of Credit and\/or apply the proceeds of any draw of the Letter of
\nCredit, Beneficiary may draw upon the Letter of Credit in place of Landlord,
\nbut only if an Event of Default has occurred under the Loan and Beneficiary,
\nor a receiver acting on Beneficiary’s behalf, has activated Beneficiary’s
\nassignment of rents or otherwise commenced to collect rents from the
\nMortgaged Premises.<\/p>\n
F. Under any circumstances not otherwise expressly
\nprovided for in this Agreement, Beneficiary shall not draw upon the Letter of
\nCredit unless Landlord directs Beneficiary to do so. If Beneficiary
\nwrongfully draws upon the Letter of Credit when directed to do so by
\nLandlord, then Tenant’s sole claim shall be against Landlord, and Beneficiary
\nshall have no liability to Tenant if Landlord was not entitled to make such
\ndrawing. If such drawing is proven to have been wrongful, then Beneficiary
\nshall with reasonable promptness cooperate in releasing the proceeds thereof
\nagainst a corresponding and simultaneous reinstatement of the amount of the
\nLetter of Credit.<\/p>\n
G. To the extent that the Lease allows Landlord to
\nretain any proceeds of a draw under the Letter of Credit or to apply such
\nproceeds against Tenant’s obligations to Landlord, Beneficiary shall (as
\nbetween Beneficiary and Landlord) be entitled to retain such proceeds, but
\nTenant shall be entitled to full credit for any such proceeds retained by
\nBeneficiary, as if such proceeds were being retained by Landlord. Unless and
\nuntil the Lease allows Landlord to retain any proceeds of a draw under the
\nLetter of Credit or to apply such proceeds against Tenant’s obligations to
\nLandlord, neither the Letter of Credit nor any proceeds thereof shall be
\navailable with respect to Landlord’s obligations to Beneficiary. (As between
\nLandlord and Beneficiary, Beneficiary’s application of any proceeds held by
\nBeneficiary shall be governed by a separate written agreement between them.)<\/p>\n
H. To the extent that the Lease requires Landlord to
\nreturn the Letter of Credit to Tenant, Beneficiary shall be responsible to
\nTenant for returning the Letter of Credit to Tenant, provided that if Tenant
\nis entitled to such return of the Letter of Credit because Tenant has
\ndelivered a replacement Letter of Credit, or a cash Security Deposit, then
\nBeneficiary shall not be obligated to release the Letter of Credit unless and
\nuntil Beneficiary has received such replacement Letter of Credit or cash
\nSecurity Deposit and it complies with all the then requirements of the Lease.
\nNotwithstanding the foregoing, if Tenant believes that Tenant is entitled to
\nthe return of the Letter of Credit, but Landlord disagrees and directs
\nBeneficiary not to return the Letter of Credit to Tenant, then Beneficiary
\nshall have no liability to Tenant, and Tenant shall resolve such dispute
\nsolely with Landlord.<\/p>\n
I. If Beneficiary assigns the Deed of Trust, then
\nBeneficiary shall assign the Letter of Credit to the same assignee, and cause
\nsuch assignee to assume all <\/p>\n
8<\/p>\n
obligations under this Agreement. If a Foreclosure occurs, then Beneficiary
\nshall assign the Letter of Credit to Successor and cause Successor to assume
\nLandlord’s obligations relating to the Letter of Credit under the Lease. (If
\nSuccessor fails or refuses to do so, then Beneficiary shall either continue
\nto hold the Letter of Credit in accordance with this Agreement, or return it
\nto Tenant.) Upon any such assignment and assumption (or upon Beneficiary’s
\nreturn of the Letter of Credit to Tenant), all rights and obligations of
\nBeneficiary, including those relating to the Letter of Credit, shall
\nterminate.<\/p>\n
J. If Landlord has repaid the Loan in full in cash
\n(including all sums secured by the Mortgage), then Beneficiary shall assign
\n(at Tenant’s expense) and deliver the undrawn portion of the Letter of Credit
\nand any unapplied proceeds of the Letter of Credit (together, the “SECURITY”)
\nto Landlord (or as Landlord shall direct), who shall then be responsible for
\nreturning the Security to Tenant when and as required by the Lease. Upon such
\nassignment and delivery of the Security, all liability of Beneficiary with
\nrespect to the Security shall terminate and Beneficiary shall have no
\nresponsibility for Landlord’s (mis)application of the Security. As between
\nLandlord and Tenant, in the event of any transfer of title or refinancing of
\nthe Mortgaged Premises, Landlord shall be responsible for causing the
\nSecurity to be delivered to the replacement lender or cash purchaser of the
\nMortgaged Premises and shall provide Tenant with such evidence of such
\ntransfer as Tenant shall reasonably request. Notwithstanding anything to the
\ncontrary in the Lease, if Landlord fails to provide such evidence to Tenant
\nwithin 30 days after Tenant’s request, then Tenant may offset rent under the
\nLease until such time as Tenant has thereby offset an amount equal to the
\nSecurity. If and when Landlord thereafter provides Tenant with reasonable
\nevidence that the Security is being held by the new Landlord (or its lender
\nin accordance with an Agreement in the form of this Agreement), Tenant shall
\npay Landlord the amount previously offset. This paragraph shall survive the
\ntermination of this Agreement.<\/p>\n
17. Tenant acknowledges that Landlord has designated
\nBeneficiary (or Beneficiary’s assignee of whom Tenant shall have received
\nnotice from Beneficiary) as a party that must be designated in Tenant’s
\ninsurance policies (and certificates and other evidence thereof) as an
\nadditional insured (for liability insurance) or under a “lender’s loss
\npayable” endorsement (for property insurance).<\/p>\n
18. Tenant acknowledges that this Agreement constitutes the
\nnotice described in the Article of the Lease entitled “Notice to Mortgagee;
\nFinancial Statement,” and that Tenant has notice of Beneficiary’s address as
\ncontemplated by such Article of the Lease.<\/p>\n
19. Tenant shall provide Beneficiary with simultaneous copies
\nof all notices given by Tenant to Landlord pursuant to the Section of the
\nLease relating to Tenant’s Option to Extend. If Beneficiary notifies Tenant
\nin writing that an Event of Default has occurred under the Loan, then
\nBeneficiary may, at its option, participate in any arbitration proceeding
\nunder such Section, which participation may be to the exclusion of, and in
\nplace of, Landlord.<\/p>\n
20. All notices, demands or requests made pursuant to, under,
\nor by virtue of this Agreement must be in writing and mailed to the party to
\nwhom the notice, demand or request is being made by certified or registered
\nmail, return receipt requested, at its address set forth above. <\/p>\n
9<\/p>\n
A copy of all notices to Beneficiary shall also be sent to Latham & Watkins,
\n885 Third Avenue, Suite 1000, New York, New York 10022-4802, Attention:
\nBrian Krisberg, Esq. A copy of all notices to Tenant shall also be sent to any
\none copy recipient, if any, as Tenant shall designate from time to time by
\nnotice under this paragraph. Any party may change the place that notices and
\ndemands are to be sent by written notice delivered in accordance with this
\nAgreement. Beneficiary shall not be deemed to be on notice of the occurrence
\nof the 19th Floor Term Commencement Date (and the related change of Tenant’s
\naddress under the Lease) unless and until Landlord or Tenant shall have
\nprovided Beneficiary with written notice that the 19th Floor Term
\nCommencement Date has occurred. Beneficiary may rely on any such notice
\nreceived from Landlord.<\/p>\n
21. This Agreement shall be governed by the laws of the State
\nof California. If any term of this Agreement or the application thereof to
\nany person or circumstances shall to any extent be invalid or unenforceable,
\nthe remainder of this Agreement or the application of such term to any person
\nor circumstances other than those as to which it is invalid or unenforceable
\nshall not be affected thereby, and each term of this Agreement shall be valid
\nand enforceable to the fullest extent permitted by law.<\/p>\n
22. Each party shall execute and deliver, upon the request of
\nthe other, such documents and instruments (in recordable form, if requested)
\nas may be necessary or appropriate to fully implement or to further evidence
\nthe understandings and agreements contained in this Agreement. This Agreement
\nmay be executed in any number of counterparts.<\/p>\n
[THE REMAINDER OF THIS PAGE WAS INTENTIONALLY LEFT BLANK; SIGNATURES
\n OF THE PARTIES HERETO FOLLOW HEREAFTER.]<\/p>\n
10<\/p>\n
IN WITNESS WHEREOF, the parties hereto have hereunto caused this
\nAgreement to be duly executed as of the Effective Date.<\/p>\n
TENANT: BENEFICIARY:
\n——- ————
\nXOOM.COM, INC. SALOMON BROTHERS REALTY
\n CORP.<\/p>\n
By: _______________________________ By: ________________________________
\n Name: ________________________ Name: __________________________
\n Title: ________________________ Title: Authorized Representative<\/p>\n
By: _______________________________
\n Name:
\n Title: ________________________<\/p>\n
LANDLORD HEREBY AGREES TO AND CONSENTS TO THE FOREGOING AGREEMENT AND
\nEXPRESSLY DIRECTS TENANT TO COMPLY WITH ANY REDIRECTION NOTICE GIVEN BY
\nBENEFICIARY TO TENANT PURSUANT TO THE FOREGOING AGREEMENT, NOTWITHSTANDING
\nANY CONTRARY CLAIMS, DIRECTIONS, OR INSTRUCTIONS BY LANDLORD.<\/p>\n
BY: LANDLORD
\n ——–<\/p>\n
OAIC BUSH STREET, LLC<\/p>\n
By: _______________________________
\n Name:
\n Its: __________________________<\/p>\n
By: _______________________________
\n Name:
\n Its: __________________________<\/p>\n
STATE OF NEW YORK )
\n )ss.:
\nCOUNTY OF NEW YORK )<\/p>\n
On the ___ day of August, 1999, before me, the undersigned, personally
\nappeared ________________________, personally known to me (or proved to me on
\nthe basis of satisfactory evidence) to be the person whose name is subscribed
\nto the within instrument and acknowledged to me that he\/she executed the same
\nin his\/her authorized capacity, and that by his\/her signature on the
\nforegoing instrument the entity upon behalf of which the person acted,
\nexecuted such instrument.<\/p>\n
Witness my hand and official seal.<\/p>\n
————————–
\n NOTARY PUBLIC<\/p>\n
[Seal]<\/p>\n
STATE OF CALIFORNIA )
\n )ss.:
\nCOUNTY OF SAN FRANCISCO )<\/p>\n
On the ___ day of August, 1999, before me, the undersigned, personally
\nappeared ________________________, personally known to me (or proved to me on
\nthe basis of satisfactory evidence) to be the person whose name is subscribed
\nto the within instrument and acknowledged to me that he\/she executed the same
\nin his\/her authorized capacity, and that by his\/her signature on the
\nforegoing instrument the entity upon behalf of which the person acted,
\nexecuted such instrument.<\/p>\n
Witness my hand and official seal.<\/p>\n
————————–
\n NOTARY PUBLIC<\/p>\n
[Seal]<\/p>\n
STATE OF FLORIDA )
\n )ss.:
\nCOUNTY OF ________________ )<\/p>\n
On the ___ day of August, 1999, before me, the undersigned, personally
\nappeared ________________________, personally known to me (or proved to me on
\nthe basis of satisfactory evidence) to be the person whose name is subscribed
\nto the within instrument and acknowledged to me that he\/she executed the same
\nin his\/her authorized capacity, and that by his\/her signature on the
\nforegoing instrument the entity upon behalf of which the person acted,
\nexecuted such instrument.<\/p>\n
Witness my hand and official seal.<\/p>\n
————————–
\n NOTARY PUBLIC<\/p>\n
[Seal]<\/p>\n
EXHIBIT “A”
\n Description of Mortgaged Premises<\/p>\n
SCHEDULE 1<\/p>\n
225 BUSH STREET
\n OPTIONS<\/p>\n
\n\nSUITE –RENT DATES– NOTICE DATE EXTENSION
\nNO. TENANT NAME EXPIRE EXTENSION EXTENSION COMMENTS
\n
\n——————————————————————————————————————-
\n 100 STAPLES
\n 120 NEW TENANT
\n 130 NEW TENANT
\n 140 NEW TENANT
\n 150 NEW TENANT
\n 160 NEW TENANT <\/p>\n———————————————————————————————————————————–<\/p>\n
Mezzanine East – See Ste 100 <\/p>\n
———————————————————————————————————————————–
\n 5\/8\/2007-
\n 200 IKON 05\/08\/08 8\/8\/2007 05\/08\/13 5 yr @ FMV w\/9-12 Mos notice
\n———————————————————————————————————————————–<\/p>\n
300 GEIGER INTERNATIONAL 09\/30\/01 <\/p>\n
311 DILLINGHAM AND MURPHY 03\/24\/00
\n Automatic 6
\n Mo Renewal<\/p>\n
330 NEXT GENERATION 11\/26\/03 <\/p>\n
10\/31\/2001-
\n 339 MCI METRO ACCESS TRAN 08\/30\/02 12\/31\/2001 6\/30\/07 5 yr @ FMV w\/6-8 Mos notice
\n 340 URBAN DATA TECHNOLOGY 11\/30\/01
\n 350 EVERY CHILD CAN LEARN 11\/30\/01
\n 353 K-III DIRECTORY CORP 04\/30\/02
\n 360 METRO COPY 07\/13\/01
\n CONSULTANTS IN
\n 370 ENGINEERING 02\/28\/02
\n 9\/30\/2000- 5 yr @ 95% FMV w\/9-12 Mos
\n 380 INTERNEX INFORMATION 09\/30\/01 12\/31\/2000 9\/30\/08 notice<\/p>\n
———————————————————————————————————————————–<\/p>\n
400 CHEVRON (HAMBRECHT) 06\/30\/00
\n 12\/31\/02-
\n 400 HAMBRECHT & QUIST 12\/31\/03 3\/31\/03 12\/31\/08 5 yr @ FMV w\/9-12 Mos notice
\n———————————————————————————————————————————–<\/p>\n
3\/31\/2012-
\n 500 SAN FRANCISCO FOUNDATION 03\/31\/13 6\/31\/2012 3\/31\/18 5 yr @ FMV w\/9-12 Mos notice<\/p>\n
———————————————————————————————————————————–<\/p>\n
600 DILLINGHAM & MURPHY 07\/31\/07 <\/p>\n
———————————————————————————————————————————–
\n 7\/31\/2001-
\n 700 SF NEIGHBORHOOD LEGAL 10\/31\/02 10\/31\/2001 10\/31\/07 5 yr @ FMV w\/12-15 Mos notice<\/p>\n
770 BLDG OFFICE
\n 780 MOK, SHEN & COMPANY 05\/31\/01<\/p>\n
790 DILLINGHAM & MURPHY 07\/31\/02
\n———————————————————————————————————————————–<\/p>\n
800 NEW TENANT
\n———————————————————————————————————————————–<\/p>\n
900 NEW TENANT
\n———————————————————————————————————————————–<\/p>\n
1\/31\/2008-
\n 1000 DEGENKOLB ENGINEERS 01\/31\/07 3\/31\/2008 1\/31\/13 5 yr @ FMV w\/9-12 Mos notice
\n———————————————————————————————————————————–<\/p>\n
9\/30\/2008-
\n 1100 SMP 09\/30\/08 3\/31\/2008 9\/30\/13 5 yr @ FMV w\/6-12 Mos notice
\n———————————————————————————————————————————–<\/p>\n
1200 NEW TENANT<\/p>\n
———————————————————————————————————————————–<\/p>\n
1300 NEW TENANT<\/p>\n
———————————————————————————————————————————–<\/p>\n
1401 BECHTEL 11\/30\/01
\n 1402 BECHTEL 11\/30\/01
\n 1470 APPLIED BUSINESS TECH 07\/31\/01
\n 1470 BECHTEL 11\/30\/01
\n 07\/31\/05-
\n 1439 STEVEN ISAACS, CPA 07\/31\/03 10\/31\/05 07\/31\/06 3 yr @ FMV w\/9-12 Mos notice
\n 1453 NATURE AMERICA & 01\/09\/08<\/p>\n
1480 APPLIED BUSINESS TECH 07\/31\/01 <\/p>\n
6\/30\/01-
\n 1480 JEWISH COMMUNITY 06\/30\/02 9\/30\/01 6\/30\/07 5 yr @ FMV w\/9-12 Mos notice
\n———————————————————————————————————————————–<\/p>\n
6\/30\/2007-
\n 1500 PRUESS WALKER 06\/30\/08 9\/30\/2007 6\/30\/13 5 yr @ FMV w\/9-12 Mos notice
\n———————————————————————————————————————————–<\/p>\n
4\/31\/03- 5 yr @ 95% FMV w\/9-12 Mos
\n 1600 REGENT BUSINESS CENTER 07\/31\/04 10\/31\/03 7\/31\/09 notice
\n———————————————————————————————————————————–<\/p>\n
8\/14\/2008-
\n 1700 ENVIRONMENTAL SCIENCE 08\/14\/07 11\/13\/2008 8\/14\/12 5 yr @ FMV w\/9-12 Mos notice<\/p>\n
1770 ZEVNIK HORTON 07\/31\/03
\n———————————————————————————————————————————–<\/p>\n
8\/7\/2003-
\n 1800 AMERICAN ARBITRATION 08\/07\/04 11\/7\/2003 6\/7\/07 3 yr @ FMV w\/9-12 Mos notice
\n———————————————————————————————————————————–<\/p>\n
1900 NEW TENANT
\n———————————————————————————————————————————–<\/p>\n
2000 NEW TENANT
\n———————————————————————————————————————————–<\/p>\n
2100 NEW TENANT
\n———————————————————————————————————————————–<\/p>\n
2200 NEW TENANT
\n———————————————————————————————————————————–
\n Total
\n———————————————————————————————————————————–<\/p>\n
\nSUITE TERMINATION EXPANSION 1ST RIGHTS
\nNO. TENANT NAME TERMINATION COMMENTS EXPANSION COMMENTS 1ST RIGHTS COMMENTS
\n
\n————————————————————————————————————————————
\n 100 STAPLES
\n 120 NEW TENANT
\n 130 NEW TENANT
\n 140 NEW TENANT
\n 150 NEW TENANT
\n 160 NEW TENANT <\/p>\n————————————————————————————————————————————<\/p>\n
Mezzanine East – See Ste 100 <\/p>\n
————————————————————————————————————————————<\/p>\n
200 IKON
\n————————————————————————————————————————————<\/p>\n
300 GEIGER INTERNATIONAL
\n TT must notify LL. TT to pay
\n $100,000 discounted for a
\n period of one year at the rate
\n equal to the interest payable
\n on a 10 year US Treasure Bill
\n as of 7\/31\/01. TT to vacate Must take 759 SF (6th floor
\n 8\/1\/01 7\/31\/02. 1\/1\/00 phone switch)
\n 311 DILLINGHAM AND MURPHY <\/p>\n
330 NEXT GENERATION If services to space are
\n interrupted for 15 days
\n consecutively such that TT is
\n reasonably prevented from
\n serving its customers other
\n than the fault of Tenant, TT
\n may terminate lease. <\/p>\n
339 MCI METRO ACCESS TRAN
\n 340 URBAN DATA TECHNOLOGY
\n 350 EVERY CHILD CAN LEARN
\n 353 K-III DIRECTORY CORP
\n 360 METRO COPY
\n CONSULTANTS IN
\n 370 ENGINERING
\n N\/A Any Contiguous
\n 380 INTERNEX INFORMATION Space on 3<\/p>\n
————————————————————————————————————————————<\/p>\n
400 CHEVRON (HAMBRECHT) <\/p>\n
400 HAMBRECHT AND QUIST
\n————————————————————————————————————————————<\/p>\n
500 SAN FRANSISCO FOUNDATION <\/p>\n
————————————————————————————————————————————
\n TT must notify LL. TT to pay
\n $100,000 discounted for a
\n period of one year at the rate
\n equal to the interest payable
\n on a 10 year US Treasure Bill
\n as of 7\/31\/01. TT to vacate Must take 759 SF (6th floor
\n 600 DILLINGHAM & MURPHY 8\/1\/01 7\/31\/02. 1\/1\/00 phone switch) <\/p>\n
————————————————————————————————————————————<\/p>\n
700 SF NEIGHBORHOOD LEGAL <\/p>\n
770 BLDG OFFICE
\n 780 MOK, SHEN & COMPANY <\/p>\n
TT must notify LL. TT to pay
\n $100,000 discounted for a
\n period of one year at the rate
\n equal to the interest payable
\n on a 10 year US Treasure Bill
\n as of 7\/31\/01. TT to vacate Must take 759 SF (6th floor
\n 790 DILLINGHAM & MURPHY 8\/1\/01 7\/31\/02. 1\/1\/00 phone switch)
\n————————————————————————————————————————————<\/p>\n
800 NEW TENTANT
\n————————————————————————————————————————————<\/p>\n
900 NEW TENANT
\n————————————————————————————————————————————<\/p>\n
1000 DEGENKOLB ENGINEERS
\n————————————————————————————————————————————<\/p>\n
1100 SMP
\n————————————————————————————————————————————<\/p>\n
1200 NEW TENANT <\/p>\n
————————————————————————————————————————————<\/p>\n
1300 NEW TENANT <\/p>\n
————————————————————————————————————————————<\/p>\n
1401 BECHTEL
\n 1402 BECHTEL
\n 1470 APPLIED BUSINESS TECH
\n 1470 BECHTEL TT to give 180 days notice.
\n 7\/31\/01-7\/31\/03 TT to pay $8,334.
\n 1439 STEVEN ISAACS, CPA
\n 1453 NATURE AMERICA & 1480 APPLIED BUSINESS TECH
\n LL received bonified 3rd party
\n off. LL to give to Jewish
\n 1480 JEWISH COMMUNITY Ste 1453 Community first.
\n————————————————————————————————————————————<\/p>\n
1500 PRUSEE WALKER
\n————————————————————————————————————————————<\/p>\n
1600 REGENT BUSINESS CENTER Entire 15th Floor
\n————————————————————————————————————————————<\/p>\n
1700 ENVIRONMENTAL SCIENCE <\/p>\n
1770 ZEVNIK HORTON
\n————————————————————————————————————————————<\/p>\n
1800 AMERICAN ARBITRATION
\n————————————————————————————————————————————<\/p>\n
1900 NEW TENANT
\n————————————————————————————————————————————<\/p>\n
2000 NEW TENANT
\n————————————————————————————————————————————<\/p>\n
2100 NEW TENANT
\n————————————————————————————————————————————<\/p>\n
2200 NEW TENANT
\n————————————————————————————————————————————<\/p>\n
————————————————————————————————————————————<\/p>\n
<\/c><\/c><\/c><\/c><\/c><\/c><\/c><\/s><\/caption>\n
<\/c><\/c><\/c><\/c><\/c><\/s><\/caption>\n<\/table>\n
SCHEDULE 4<\/p>\n
ADDITIONAL MONTHLY DISBURSEMENT REQUIREMENTS<\/p>\n
1. General Contractors Sworn Statement (Standard AIA format).
\n This statement should cover all the work for which funds have been
\n disbursed to date, paid or to be paid in conjunction with this
\n request.<\/p>\n
2. Owners Sworn Statement (Standard AIA format).
\n This statement should cover all the work for which funds have been
\n disbursed to date, paid or to be paid in conjunction with this
\n request.<\/p>\n
3. Fully executed AIA G702 application for payment form, which is to be
\n signed by the general contractor, the architect\/engineer, and the
\n Tenant.<\/p>\n
4. Detailed construction and or project budget showing the original
\n budget amount, any reallocations, the new budget amount, total funds
\n disbursed to date, the current disbursement request and the balance
\n required to finish the project on a line item basis.<\/p>\n
5. Change Order requests outlining the changes to be made to the
\n construction budget along with supporting documentation. These
\n requests are not to be incorporated into the current draw request.
\n They are a separate package to be sent for the approval of Landlord.<\/p>\n
6. General contractor’s and subcontractors unconditional lien waivers for
\n all prior disbursements and their conditional waivers for the payment
\n currently requested.<\/p>\n
7. Invoices to substantiate the full amount of funds being requested.
\n Please note that purchase orders must be accompanied by an invoice.
\n They are not payable on their own.<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[9374],"corporate_contracts_industries":[9510],"corporate_contracts_types":[9583,9579],"class_list":["post-41707","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-xoom-inc","corporate_contracts_industries-technology__programming","corporate_contracts_types-land__ca","corporate_contracts_types-land"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/41707","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=41707"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41707"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41707"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41707"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}