\n San Francisco, CA 94103<\/p>\nWith a Copy to: Testa, Hurwitz & Thibeault, LLP
\n 125 High Street
\n Boston, MA 02110
\n Attn.: Real Estate Department
\nLandlord’s Address for Notice: Hamm’s Building Associates
\n c\/o Rubin Glickman
\n 1550 Bryant Street, Suite 600
\n San Francisco, CA 94103
\nExhibits: Exhibit A. Basic Lease Information
\n Exhibit B. Description of Premises
\n Exhibit C. Rules
\n Exhibit D. Construction Rider
\n Exhibit E. Construction Documents<\/p>\n
Landlord: Tenant:
\nHAMM’S BUILDING ASSOCIATES, Individual, Inc.
\na California Limited Partnership
\nBy: RHGA, Inc., General Partner<\/p>\n
By: \/s\/ Rubin Glickman By: \/s\/ Robert L. Lentz
\n —————————– ——————————–
\nRubin Glickman, President Robert L. Lentz, Vice-President
\n<\/c><\/s><\/table>\n
2<\/p>\n
This Lease (“Lease”) dated as of September 3, 1996, is entered into between
\nHAMM’S BUILDING ASSOCIATES, a California Limited Partnership (“Landlord”), and
\nIndividual, Inc., (“Tenant”).<\/p>\n
Recitals<\/p>\n
A. Landlord is the owner of real property (“Real Property”) located at 1550
\nBryant Street, San Francisco and the building (“Building”) located on it. The
\nReal Property and the Building are collectively the “Property.”<\/p>\n
B. Landlord desires to lease to Tenant, and Tenant desires to lease from
\nLandlord the Premises (as defined below) for the term and subject to the terms,
\ncovenants, agreements, and conditions in this Lease.<\/p>\n
For good and valuable consideration the receipt and adequacy of which are
\nacknowledged, the parties agree as follows:<\/p>\n
Section 1. Definitions.<\/p>\n
As used in this Lease, the following terms shall have the meanings
\nspecified in this Section 1.<\/p>\n
Alterations is defined in Section 8.<\/p>\n
Base Operating Expenses means the Operating Expenses paid or incurred by
\nLandlord in the Base Year.
\n Base Property Taxes means the amount of Property Taxes for the tax year
\nending June 30 of the Base Year.
\n Base Rent means the Base Rent as set forth in the Basic Lease Information.<\/p>\n
Base Year means the calendar year specified in the Basic Lease Information
\nas the Base Year.<\/p>\n
Basic Lease Information is attached to and incorporated in this Lease as
\nExhibit A.<\/p>\n
Building means the building constructed on the Real Property known as 1550
\nBryant Street, San Francisco California, commonly known as the Hamm’s Building,
\nany property interest in the area of The Hamm’s Building and all other
\nimprovements on or appurtenances to the Real Property or the streets abutting
\nthe Real Property. The Building includes, but is not limited to, an office
\nbuilding with twelve (12) floors of office space and an open air parking lot
\nlocated as shown on the attached site plan.<\/p>\n
Commencement Date means the Commencement Date as set forth in the Basic
\nLease Information.<\/p>\n
3<\/p>\n
Common Area means the total area on a floor consisting of rest rooms,
\njanitor, telephone and electrical closets, mechanical areas, public corridors
\nproviding access to tenant space, public stairs, elevator shafts and pipe
\nshafts, together with their enclosing walls.<\/p>\n
Deposit is defined in Section 24.<\/p>\n
Escalation Rent is defined in Section 4(a).<\/p>\n
Encumbrance is defined in Section 36.<\/p>\n
Event of Default is defined in Section 18.<\/p>\n
Landlord is defined in the preamble.<\/p>\n
Legal Requirements is defined in Section 14.<\/p>\n
Lease is defined in the preamble.<\/p>\n
Tenant is defined in the preamble.<\/p>\n
Tenant’s Percentage Share means the percentage figure specified as Tenant’s
\nPercentage Share in the Basic Lease Information. Tenant’s Percentage Share has
\nbeen obtained by dividing the net rentable area of the Premises, as specified in
\nthe Basic Lease Information, by the total net rentable area of the Building,
\nwhich is 160,029 square feet, and multiplying that quotient by one hundred
\n(100). In the event the rentable area of the Premises is increased or decreased
\nby the addition to or deletion from the Premises of any office space, Tenant’s
\npercentage share shall be appropriately adjusted.<\/p>\n
Operating Expenses means all reasonable costs of management, operation and
\nmaintenance of the Building determined by generally accepted accounting
\nprinciples, including without limitation: wages, salaries and payroll burden of
\nemployees excluding employees above the rank of Building Manager, property
\nmanagement fees at current market rates, janitorial, maintenance, security and
\nother services; Building office rent or rental value for a building office as
\nsmall as reasonably practical to operate the building; power, water, waste
\ndisposal and other utilities; materials and supplies; maintenance and repairs
\n(including the repair and replacement of glass and the roof covering or
\nmembrane); permit and license costs; insurance premiums and the deductible
\nportion of any insured loss under Landlord’s insurance to the extent reasonable;
\naccounting, legal or other professional fees of independent service providers
\nwho are not employees of Landlord incurred in connection with operating the
\nBuilding and the calculation of Operating Expenses and Property Taxes, provided,
\nhowever, if Landlord incurs any costs for; any capital improvements made to the
\nBuilding by Landlord after the Base Year that (i) are made in the reasonable
\nexpectation of reducing other Operating Expenses, or (ii) are required under any
\ngovernmental law or regulation that was not applicable to the Building at the
\ntime it was constructed, such cost shall be-amortized over the useful life of
\nsuch capital improvements, together with interest on the unamortized balance at
\nthe rate equal to that paid by Landlord on funds borrowed for the purpose of
\nconstructing or installing those capital improvements, and only<\/p>\n
4<\/p>\n
the annual amortized portion of such costs, with such interest, shall be
\nincluded in Operating Expenses for any calendar year.
\n Notwithstanding any contrary provision of this Lease, Operating Expenses
\nshall not include costs relating to the following:<\/p>\n
i. principal, interest or other changes relating to indebtedness secured
\n by an Encumbrance;<\/p>\n
ii. rent, additional rent or other charges payable under any Underlying
\n Lease;<\/p>\n
iii. leasehold improvements made in connection with the preparation of any
\n portion of the Building for occupancy by a new or existing tenant
\n which is not generally beneficial to all tenants of the Building;<\/p>\n
iv. any expansion of the rentable area of the Building;<\/p>\n
v. costs, expenses or charges properly chargeable or attributable to a
\n particular tenant or tenants;<\/p>\n
vi. any utility or other service used or consumed in premises leased to
\n any tenant or occupant of the Building, but only if Tenant’s use or
\n consumption of such utility or other services is separately metered
\n or sub-metered at the Premises;<\/p>\n
vii. efforts to lease portions of the Building or to procure new tenants
\n for the Building, including advertising expenses, leasing commissions
\n and attorney’s fees;<\/p>\n
viii. negotiations or disputes with any tenant of the Building;<\/p>\n
ix. Landlord’s general overhead not directly related to the management or
\n operations of the Building;<\/p>\n
x. depreciation of the Building;<\/p>\n
xi. repairs and replacements arising out of a fire or other casualty,
\n except a reasonable deductible under insurance carried by Landlord or
\n out of an exercise of the eminent domain affecting the Building or
\n any of the parking areas serving the Building;<\/p>\n
xii. Landlord’s or Landlord’s managing agents’ breach or violation of a
\n law, lease or other obligation, including fines, penalties and
\n attorneys’ fees;<\/p>\n
xiii. compensation paid to employees or other person in connection with
\n commercial concession operated by Landlord or Landlord’s managing
\n agent;<\/p>\n
xiv. fees for licenses, permits or inspections that are not part of
\n routine maintenance of the Building or result from the act or
\n negligence of Landlord, Landlord’s managing agent or any other tenant
\n of the building;<\/p>\n
xv. remediation of environmental contamination existing as of the date of
\n this Lease and any environmental testing required by Landlord’s
\n lender;<\/p>\n
5<\/p>\n
xvi. compliance with laws existing as of the date of this Lease,
\n including without limitation the Americans With Disabilities Act,
\n and any environmental laws other than reinterpretations of existing
\n laws, subsequent to execution of this Lease;<\/p>\n
xvii. sculptures, paintings and other works of art;<\/p>\n
xviii. any items with respect to which Landlord receives reimbursement
\n from insurance proceeds of from a third party;<\/p>\n
xix. Property Taxes.<\/p>\n
Actual Operating Expenses for both the Base Year and each subsequent
\ncalendar year will be adjusted to equal Landlord’s reasonable estimate of
\nOperating Expenses had ninety-five (95) percent of the Building been occupied.<\/p>\n
Premises means the portion of the Building located on the floor or floors
\nspecified in the Basic Lease Information which is cross-hatched on the plan or
\nplans attached to this Lease as Exhibit B.<\/p>\n
Property is defined in Recital A of this I-case.<\/p>\n
Property Taxes means all real property taxes and general, special or
\ndistrict assessments or other governmental impositions, of whatever kind,
\nimposed on or by reason of the ownership or use of the Property; governmental
\ncharges, fees or assessments for police, fire or other governmental services;
\nservice payments in lieu of taxes and taxes and assessments of every kind levied
\nin addition to, in lieu of or in substitution for existing or additional real or
\npersonal property taxes on the Property; and all real estate tax consultant
\nexpenses and attorney fees of consultants and attorneys who are not employees of
\nLandlord incurred for the purpose of maintaining an equitable assessed valuation
\nof the Building or contesting the validity of any taxes, assessments or charges
\ndescribed above. Property Taxes shall exclude any income, franchise, gift,
\nestate, inheritance, transfer and excise taxes.<\/p>\n
Real Property is defined in Recital A of this Lease.<\/p>\n
Rentable Area means the rentable area of the Premises specified on the
\nBasic Lease Information. If any office space is added to or deleted from the
\nPremises, the rentable area of the space added or deleted shall mean: (a) as to
\nan entire floor added to or deleted from the Premises, all areas within outside
\npermanent Building walls, measured to the inside glass surface of outside
\npermanent Building walls, including rest rooms; janitor, telephone, and
\nelectrical closets; allocated mechanical areas and columns and projections
\nnecessary to the Building, but excluding public stairs, elevator shafts, and
\npipe shafts, together with their enclosing walls; (b) as to a portion of a floor
\nadded to or deleted from the Premises, the aggregate of the Usable Area of the
\nportion of the floor added to or deleted from the Premises, plus the result
\nobtained by multiplying the area of the Common Area on this floor by a fraction,
\nthe numerator of which is the aggregate of the usable area of the portion of the
\nfloor added to or deleted from the Premises and the denominator of which is the
\nusable area of all tenant space on the floor.<\/p>\n
6<\/p>\n
Substantially Complete and Substantial Completion are defined in Paragraph
\n3 of Exhibit D.<\/p>\n
Term is defined in Section 3 of this Lease.<\/p>\n
Termination Date means the Termination Date in the Basic Lease Information.<\/p>\n
Underlying Lease is defined in Section 36.<\/p>\n
Usable Area means all floor area in a tenant space, measured to the inside
\nglass surface of outer Building walls, to the office side of corridors and other
\npermanent partitions, and to the center of partitions that separate the tenant
\nspace from adjoining tenant spaces, without deduction for columns and
\nprojections necessary to the Building.<\/p>\n
Section 2. Premises.
\n Landlord leases to Tenant, and Tenant leases from Landlord the Premises (as
\nset forth in the Basic Lease Information) for the term and subject to the terms,
\ncovenants, agreements, and conditions set forth in this Lease. Tenant shall have
\nthe right, in common with others entitled thereto, to use: the driveways and
\nsidewalks necessary for access to the Building and the parking areas on the Real
\nProperty; the entrances, lobbies, corridors, elevators and stairways necessary
\nfor access to the Premises; the pipes, wires and conduits and the plumbing,
\nelectrical, heating, ventilating, air conditioning, emergency and other
\nmechanical systems and equipment serving the Premises exclusively; and any other
\ncommon areas and facilities provided to tenants of the Building by the Landlord
\nfrom time to time.<\/p>\n
Section 3. Term; Condition of Premises.
\n (a) The term (“Term”) of this Lease shall commence on the Commencement Date
\n(as set forth in the Basic Lease Information) and, unless sooner terminated as
\nlater provided, shall end on the Termination Date (as set forth on the Basic
\nLease Information). Landlord shall deliver the Premises to Tenant on the
\nCommencement Date in broom clean condition, after having Substantially Completed
\nthe Tenant Improvements, free of tenants and occupants. If the Tenant
\nImprovements are completed before the Commencement Date, and if Tenant desires
\nto take occupancy in advance of that date, Landlord shall deliver the Premises
\nto Tenant at that time in advance of a date that will be mutually approved by
\nLandlord and Tenant and, notwithstanding anything to the contrary contained in
\nthis Lease, the Term of the Lease shall commence on delivery. Landlord shall use
\nits best efforts to deliver the premises to Tenant in the condition required
\nunder this Lease on the Scheduled Commencement Date, but Landlord shall not be
\nliable for delays in delivery arising from acts of force majeure.<\/p>\n
(b) Tenant shall have the option, exercisable by written notice to Landlord
\nno later than nine months before the end of the Term, to extend the Term for a
\nperiod of five years, the terms and conditions of this Lease, except that the
\nannual rate of Base rent during such five-year extended term shall equal 95 % of
\nthe fair market rent to be determined by the comparable rent charged in the
\nHamm’s Building for premises comparable to the subject premises with five-year
\nterms, but not less than last month’s rent. If Landlord and Tenant are unable to
\nagree on the Fair<\/p>\n
7<\/p>\n
Market Rent within such 30 days after delivery of such notice to Landlord, the
\nFair Market Rent shall be determined according to the following procedures:<\/p>\n
i. At any time after such 30-day period, Landlord and Tenant shall have
\n the right, by written notice (a “Notice of Arbitration”) to the other, to
\n demand arbitration of the calculation of the Fair Market Rent. The party
\n demanding arbitration (the “first party”) shall appoint an arbitrator in
\n the Notice of Arbitration. Within seven days after the Notice of
\n Arbitration is given, the other party (the “second party”) shall by notice
\n to the first party appoint a second arbitrator. If the second party fails
\n to appoint a second arbitrator within such seven-day period, the position
\n taken by the first party shall be deemed to be the correct calculation of
\n the Fair Market Rent.<\/p>\n
ii. Within seven days after the designation of the second arbitrator,
\n Landlord and Tenant shall submit their respective positions with respect to
\n the calculation of the Fair Market Rent to the two arbitrators. Within
\n fourteen days after the designation of the second arbitrator, the two
\n arbitrators shall conduct such hearings and investigations as they deem
\n appropriate and determine the correct calculation of the Fair Market Rent.
\n The arbitrators, or either of them, shall give notice of such resolution
\n (or notice of their inability to reach agreement, as the case may be) to
\n the Landlord and the Tenant within such fourteen-day period. Any agreement
\n of the two arbitrators shall be binding upon the Landlord and the Tenant.<\/p>\n
iii. If the two arbitrators are unable to reach and agreement within such
\n fourteen-day period, the two arbitrators shall, within such fourteen-day
\n period, designate a third arbitrator. If the two arbitrators fail to agree
\n upon the designation of a third arbitrator within such fourteen-day period,
\n then they or either of them shall give notice of such failure to agree to
\n Landlord and Tenant within such fourteen-day period. If Landlord and Tenant
\n fail to agree upon the selection of a third arbitrator within seven days
\n after the arbitrators give such notice, then either party on behalf of both
\n may apply to a court of competent jurisdiction, for the designation of such
\n third arbitrator.<\/p>\n
iv. Within seven business days after the designation of the third
\n arbitrator, the parties shall submit their respective positions with
\n respect to the calculation of the Fair Market Rent to the third arbitrator.
\n Within fourteen days after the designation of the third arbitrator, the
\n third arbitrator shall conduct such hearings and investigation as he or she
\n may deem appropriate and determine the correct calculation of the Fair
\n Market Rent. Within such fourteen-day period, the three arbitrators shall
\n give notice of such resolution to Landlord and Tenant. The third
\n arbitrator’s determination shall be binding upon Landlord and Tenant.<\/p>\n
v. All arbitrators shall be qualified real estate professionals who shall
\n have had at least ten years of experience appraising buildings comparable
\n to the Building in the Greater San Francisco area. Landlord and Tenant
\n shall each be entitled to present evidence to the arbitrators in support of
\n their respective positions. The arbitrators shall not make any
\n determination inconsistent with the terms of this Lease. The arbitrators
\n shall not have the power to add to, modify or change any of the provisions
\n of this Lease. The determination of the arbitrator(s) shall be conclusive
\n and shall have the same force as a judgment in a court of competent
\n jurisdiction. Judgment on the determination made by the arbitrator(s) under
\n the foregoing provisions may be entered in any court of competent
\n jurisdiction.<\/p>\n
8<\/p>\n
vi. Each party shall pay the fees, costs and expenses of the arbitrator
\n appointed by such party and of the attorneys and expert witnesses of such
\n party and one-half of the other fees, costs and expenses of arbitration
\n properly incurred under this Lease.<\/p>\n
Section 4. Rental.
\n (a) Tenant shall pay to Landlord throughout the Term as rental for the
\nPremises the Base Rent, subject to the following adjustments:<\/p>\n
(i) The rental payable during each calendar year subsequent to the
\nBase Year shall be(i) the Base Rent, plus (ii) Tenant’s Percentage Share of the
\ntotal dollar increase, if any, in Operating Expenses paid or incurred by
\nLandlord in that year over the Base Operating Expenses, and also increased by
\nTenant’s Percentage Share of the total dollar increase, if any, in Property
\nTaxes paid by Landlord in that year over the Base Property Taxes (“the
\nEscalation Rent”). The increased rental due pursuant to this Section 4(a)(ii) is
\nthe “Escalation Rent.”<\/p>\n
(b) Base Rent shall be paid to Landlord in equal monthly installments, in
\nadvance, on or before the first day of calendar month during the Term of this
\nLease. Tenant shall pay the monthly installment of Base Rent for the first full
\ncalendar month of the Term at the time of the execution of this Lease. In the
\nevent the Term of this Lease commences on a day other than the first day of a
\ncalendar month or ends on a day other than the last day of a calendar month, the
\nmonthly rental for the first and last fractional months of the Term of this
\nLease shall be prorated according to the fraction of the total number of days in
\nsuch month falling within the Term, and such prorated payment shall be due on
\nthe first day of such month within the Term. If the term of this lease commences
\non a day other thin the first day of a calendar year or ends on a day other than
\nthe last day of a calendar year, the Base Rent and Escalation Rent for the first
\nand last calendar years of the Term shall be prorated according to the fraction
\nof the total number of days in such year falling within the Term.<\/p>\n
(c) All sums of money due to Landlord under this Lease, not specifically
\ncharacterized as rental, shall constitute additional rent and shall be due
\nwithin ten (10) days after receipt by Tenant of a billing. If any sum is not
\npaid when due, it shall be collectible as additional rent with the next
\ninstallment of rental falling due.<\/p>\n
(d) Tenant acknowledges that late payment of rent and other sums due under
\nthis Lease after the expiration of any applicable cure period under Section
\n18(a) will cause Landlord to incur costs not contemplated by this Lease, the
\nexact amount of which will be difficult to ascertain. These costs include, but
\nare not limited to, processing and accounting charges and late charges which may
\nbe imposed on Landlord by the terms of any trust deed covering the Premises.
\nAccordingly, if any installment of rent or any other sums due from Tenant are
\nnot received when due, or if a cure period is applicable under Section 18(a),
\nprior to the expiration of the cure period, Tenant shall pay to Landlord a late
\ncharge equal to five percent (5%) of the overdue amount. The parties agree that
\nthe late charge represents a fair and reasonable estimate of the costs Landlord
\nwill incur because of late payment. Acceptance of the late charge by Landlord
\nshall not constitute a waiver of Tenant’s default for the overdue amount, nor
\nprevent Landlord from exercising the other rights and remedies granted under
\nthis Lease.<\/p>\n
[INITIALS APPEAR HERE] [Initials of landlord]
\n———————- <\/p>\n
[INITIALS APPEAR HERE] [Initials of Tenant]
\n———————- <\/p>\n
9<\/p>\n
(e) Any amount due to Landlord other than monthly rental, if not paid
\nwithin five (5) days following the due date will bear interest from the due date
\nuntil paid at the rate of ten percent (10%) per year. However, interest shall
\nnot be payable on late charges incurred by Tenant nor on any amounts on which
\nlate charges are paid by Tenant to the extent this interest would cause the
\ntotal interest to be in excess of that legally permitted. Payment of interest
\nshall not excuse or cure any default by Tenant.<\/p>\n
(f) All payments due shall be paid to Landlord, without deduction or offset
\nexcept as set forth in this Lease, in lawful money of the United States of
\nAmerica at Landlord’s address for notices under this Lease or to another person
\nor at another place as Landlord may designate by notice to Tenant. If Tenant
\npays by check and the check is returned for non-sufficient funds more than once,
\nupon request of the Landlord, the Tenant shall make future payments by cashiers
\ncheck.<\/p>\n
Section 5. Escalation Rent.
\n Escalation Rent shall be paid monthly on an estimated basis, with
\nsubsequent annual reconciliation, in accordance with the following procedures:<\/p>\n
(a) No later than fifteen (15) days prior to the end of the Base Year and
\nno later than fifteen (15) days prior to the end of each subsequent calendar
\nyear, or as soon after that time as practicable, Landlord shall give Tenant
\nnotice of Landlord’s estimate of any Escalation Rent due under Section 4(a) for
\nthe ensuing calendar year. On or before the first day of each month during the
\nensuing calendar year, Tenant shall pay to Landlord one-twelfth (1\/12th) of the
\nestimated Escalation Rent. If Landlord fails to give notice as required in this
\nSection, Tenant shall continue to pay on the basis of the prior year’s estimate
\nuntil the month after that notice is given. If at any time it appears to
\nLandlord that the Escalation Rent for the current calendar year will vary from
\nthe estimate, Landlord may, by notice to Tenant, revise the estimate for that
\nyear, and subsequent payments by Tenant for that year shall be based on the
\nrevised estimate.<\/p>\n
(b) Within ninety (90) days after the close of each calendar year, or as
\nsoon after the ninety (90) day period as practicable, Landlord shall deliver to
\nTenant a statement of the actual Escalation Rent for that calendar year showing
\nOperating Expenses and Property Taxes on the basis of which the actual
\nEscalation Rent was determined. At Tenant’s request, Landlord shall provide
\nTenant reasonable supporting detail underlying the calculations of Operating
\nExpenses and Property Taxes. If Landlord’s statement discloses that Tenant owes
\nan amount that is less than the estimated payments for the calendar year
\npreviously made by Tenant, Landlord shall credit the excess first against any
\nsums then owed by Tenant, and then against the next payments of rental due, or,
\nafter the end of the Term, Landlord shall pay such excess to Tenant at the time
\nof the delivery of Landlord’s statement for the last calendar year of the Term.
\nIf Landlord’s statement discloses that Tenant owes an amount that is more than
\nthe estimated payments for the calendar year previously made by Tenant, Tenant
\nshall pay the deficiency to Landlord within thirty (30) days after delivery of
\nthe statement.<\/p>\n
(c) Landlord shall maintain at all times during the term of this Lease, at
\nthe office of Landlord in the Building or such other office as Landlord may
\ndesignate full, complete and accurate books of account and records prepared in
\naccordance with generally accepted accounting principles with respect to
\nEscalation Rent, and shall retain such books and records, as well as contracts,
\nbills, vouchers, and checks, and such other documents as are reasonably
\nnecessary to properly audit the Escalation Rent. Upon reasonable notice from
\nTenant, Landlord shall make available for Tenant’s inspection (or inspection
\nperformed by Tenant’s accountant and\/or<\/p>\n
10<\/p>\n
consultants) at Landlord’s office in the Building, during normal business hours,
\nLandlord’s books and records relating to the Escalation Rent for the previous
\ncalendar year. If Tenant’s inspection reveals that Tenant was overcharged for
\nescalation rent, the amount of the overcharge shall be promptly refunded to
\nTenant.<\/p>\n
(d) The termination of this Lease shall not affect the obligations of the
\nparties pursuant to Section 5(b) to be performed after the termination.<\/p>\n
Section 6. Use.
\n The Premises shall be used for general office purposes. Tenant shall not do
\nor permit to be done on the Premises, nor bring or keep or permit to be brought
\nor kept in the Premises, anything (a) which is prohibited by or in conflict with
\nany law, ordinance, or governmental rule or, (b) which is prohibited by the
\nstandard form of fire insurance policy or, (c) which will increase the existing
\nrate of or affect fire or other insurance on the Building or its contents or
\ncause a cancellation of any insurance policy covering the Building or any part
\nof it or its contents. Tenant shall not use or store in the Premises any
\nhazardous or toxic substances, with the sole exception of reasonably necessary
\nsubstances that are kept in reasonably necessary quantities for normal office
\noperations, provided that their use and storage are in accordance with
\napplicable laws. Tenant shall not do or permit anything to be done on the
\nPremises that will obstruct or interfere with the rights of other tenants of the
\nBuilding, or injure them, or use or allow the Premises to be used for any
\nunlawful purposes, nor shall Tenant cause, maintain, or permit any nuisance or
\nwaste on or about the Premises.<\/p>\n
Section 7. Services.
\n (a) Landlord shall maintain in good condition and working order and in
\ncompliance with all applicable laws lobbies, stairs, elevators, corridors, rest
\nrooms, and other Common Areas, all exterior landscaping, the driveways,
\nsidewalks and parking areas on the Real Property, the exterior windows, the
\nmechanical, plumbing, emergency, heating, ventilating, air conditioning and
\nelectrical equipment serving the Building, the roof, foundation and other
\nstructural components of the Building, except for damage, excluding normal wear
\nand tear, caused by the Tenant. Damage caused by Tenant, other than normal wear
\nand tear by Tenant, shall be repaired by Landlord at Tenant’s expense. The
\nstandard of maintenance shall be equal to that of other office buildings of a
\nsimilar class in San Francisco, California.<\/p>\n
(b) Landlord shall furnish (i) electricity for lighting and the operation
\nof office machines, (ii) heat and air conditioning, to the extent reasonably
\nrequired for the comfortable occupancy by Tenant in Tenant’s use of the Premises
\nduring the period from 7:00 a.m. to 7:00 p.m. on weekdays, except holidays, or a
\nshorter period as may be prescribed by applicable policies or regulations
\nadopted by any utility or governmental agency, (iii) elevator service, (iv)
\nlighting replacement, for building standard lights, (v) rest room supplies, (vi)
\nwindow washing with reasonable frequency, (vii) water for the rest rooms and
\nkitchen areas, and (viii) security guard services and daily janitor services
\nduring the times and in the manner that these services are customarily furnished
\nin comparable office buildings in the area. Landlord may establish reasonable
\nmeasures to conserve energy and water, including but not limited to, automatic
\nlight shut off after hours and efficient lighting forms, so long as these
\nmeasures do not unreasonably interfere with Tenant’s use of the Premises.<\/p>\n
(c) Landlord shall not be in default under this Lease, nor be liable for
\nany damages resulting from, nor shall the required rental be abated because of
\n(i) any reasonably necessary<\/p>\n
11<\/p>\n
installation, use, or interruption of use of any equipment in connection with
\nfurnishing the previously listed services, (ii) failure to furnish or delay in
\nfurnishing these services, when failure or delay is caused by accident or
\nconditions beyond the reasonable control of Landlord or by 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 form of energy serving the Premises or the Building caused by
\ncircumstances beyond the reasonable control of Landlord; provided, however,
\nLandlord shall use reasonable efforts to avoid interference with Tenant’s use
\nand occupancy of the Premises, and Landlord shall use reasonable efforts to
\ndiligently remedy interruptions in the furnishing of these services.<\/p>\n
Section 8. Alterations.
\n Tenant shall not make or allow any alterations, additions, or improvements
\nto the Premises or any part of the Premises (“Alterations”), except for pre-
\noccupancy tenant improvements (“Tenant Improvements”) as evidenced by Exhibit E
\n(“Construction Documents”), without Landlord’s prior consent, which shall not be
\nunreasonably withheld, provided, however, Tenant shall have the right, with
\nLandlord’s prior consent, to make alterations, additions or improvements to the
\nPremises which do not cost more than $10,000 in any one instance and which do
\nnot affect the base mechanical systems of the Building. The installation of
\nfurnishings, fixtures, equipment, or decorative improvements, none of which
\nshall affect Building systems or the structure of the Building, and the
\nrepainting or recarpeting of the Premises, shall not constitute Alterations. All
\nAlterations (except Tenant’s trade fixtures and personal property) shall
\nimmediately become Landlord’s property and, at the end of the Term, shall remain
\non the Premises without compensation to Tenant, unless Landlord elects by notice
\nto Tenant at the time of installation to have Tenant remove any Alterations that
\nare peculiar to Tenant’s use of the Premises and are not normally required or
\nused by other tenants. In this event, Tenant shall bear the cost of restoring
\nthe Premises to their condition prior to the installment of the Alterations.<\/p>\n
Section 9. Repairs; Landlord’s Reservation of Rights.
\n (a) At all times during the term of this Lease and at Tenant’s sole cost,
\nexcept as set forth in Section 7 of this Lease. Tenant shall keep the Premises
\nin good condition and repair; ordinary wear and tear, eminent domain, and damage
\nto the Premises by fire, earthquake, or act of God or the elements are excepted.
\nAt the end of the term of this Lease, Tenant shall surrender to Landlord the
\nPremises and all Alterations that are to remain in the Premises in the same
\ncondition as when received; ordinary wear and tear and damage by fire,
\nearthquake, or act of God or the elements are excepted. Landlord has no
\nobligation and has made no promise to alter, remodel, improve, repair, decorate,
\nor paint the Premises or any part of them, except as specifically set forth in
\nExhibit E. Landlord has made no representations respecting the condition of the
\nPremises or the Building, except as specifically set forth in this Lease.<\/p>\n
(b) Landlord reserves the right, at any time and from time to time, without
\nthe same constituting an actual or constructive eviction, but provided that
\nLandlord does not unreasonably interfere with Tenant’s use and occupancy of the
\nbuilding, to (i) make alterations, additions, repairs, improvements to or in, or
\nto decrease the size of area of all or any part of the Building (except the
\nPremises), the fixtures and equipment therein, the heating, ventilation, air-
\nconditioning, plumbing, electrical, fire protection, life safety, security and
\nall mechanical systems of the building (“Building Systems”), the common areas
\nand all other parts of the Building; (ii) to change the arrangement and\/or
\nlocation of entrances or passageways, doors and doorways, corridors, elevators,
\nstairs, toilets and other public parts of the Building and to create additional
\nrentable areas through use or enclosure of common areas; (iii) to change the
\nBuilding’s name or street<\/p>\n
12<\/p>\n
address or to change the room number or numbers of the Premises; (iv) to
\ninstall, affix and maintain any and all signs on the exterior and interior of
\nthe Building.<\/p>\n
Section 10. Damage or Destruction.
\n (a) In the event the Premises or any portion of the Building necessary for
\nTenant’s occupancy are damaged by fire, earthquake, act of God, the elements, or
\nother casualty, within thirty (30) days after that event, Landlord shall notify
\nTenant of the estimated time, in Landlord’s reasonable judgment, required for
\nrepair or restoration. If the estimated time is thirty (30) days or less after
\nthe commencement of the physical work and ninety (90) days or less after the
\ncasualty event, Landlord shall proceed promptly and diligently to adjust the
\nloss with applicable insurers, to secure all required governmental permits and
\napprovals, and to repair or restore the Premises or the portion of the Building
\nnecessary for Tenant’s occupancy. This Lease shall remain in full force, except
\nthat until such repairs and restoration are complete, Base Rent and Escalation
\nRent shall abate equitably on proration to the extent of such damage and its
\neffect on Tenant’s use of the Premises.<\/p>\n
(b) If the estimated time for repair or restoration is in excess of thirty
\n(30) days after the commencement of the physical work or ninety (90) days after
\nthe casualty event, Tenant or Landlord may elect to terminate this Lease as of
\nthe date of the casualty event by giving notice to the other party within
\nfifteen (15) days following receipt of Landlord’s notice of the estimated time
\nfor repair.<\/p>\n
Section 11. Subrogation.
\n Landlord and Tenant shall each obtain from their respective insurers under
\nall policies of fire, theft, public liability, worker’s compensation, and other
\ninsurance maintained during the term of this Lease covering the Building, or any
\nportion of it, or operations in it, a waiver of all rights of subrogation that
\nthe insurer of one party might have against the other party. Landlord and Tenant
\nshall each indemnify the other against any loss or expense, including reasonable
\nattorney fees, resulting from the failure to obtain this waiver.<\/p>\n
Section 12. Insurance.
\n Tenant, at its expense, shall maintain in full force during the Term of
\nthis Lease, a policy or policies of public liability and property damage
\ninsurance insuring against all liability, subject to standard ISO CGL policy
\nexclusions, of Tenant and its representatives, agents and visitors for personal
\nor bodily injury or property damage arising out of or incurred in connection
\nwith Tenant’s use or occupancy of the Premises or the Real Property. Such policy
\nor policies subject to standard ISO CGL policy exclusions shall further insure
\nthe indemnification obligations of Tenant under this Lease. Each policy of
\ninsurance required under this Lease shall be in a form, in an amount, and with
\nan insurer reasonably acceptable to Landlord, but no event less than $1,000,000
\ncombined single limit and shall require at least ten (10) days’ written notice
\nto Landlord prior to any termination of the policy. Each policy of liability
\ninsurance shall name the Landlord, and its property managers as additional
\ninsured and provide that it is primary, and not contributing with, any policy
\ncarried by Landlord covering the same loss. Tenant shall provide to Landlord,
\nupon request, evidence that the insurance required to be carried by Tenant is in
\nfull force and effect and the premiums have been paid.<\/p>\n
Section 13. Indemnification.
\n Tenant and Landlord each waives all claims against the other party for
\ndamage to any property or injury or death of any person on the Premises arising
\nat any time and from any cause<\/p>\n
13<\/p>\n
other than the sole negligence or willful misconduct of the other party’s
\nemployees, agents, or contractors. Tenant and Landlord each shall hold the other
\nparty harmless from and defend the other party against all claims, liability,
\ndamage, or loss arising out of any injury or death of any person or damage to or
\ndestruction of property attributable to the action or inaction (where there is a
\nduty to act) of the indemnifying party, except that caused by the sole
\nnegligence or willful misconduct the other party or its agents, contractors, or
\nemployees. Tenant and Landlord each shall also hold the other party harmless
\nfrom any liability, cost, or expense arising from the indemnifying party’s use
\nor storage on the property of any hazardous or toxic substance. These indemnity
\nobligations shall include reasonable attorney fees, investigation costs, and all
\nother reasonable costs incurred by the indemnified party from the first notice
\nthat any claim or demand is to be made or may be made. The provisions of this
\nSection shall survive the termination of this Lease for any event occurring
\nprior to the termination.<\/p>\n
Section 14. Compliance with Legal Requirements.
\nAt Tenant’s sole cost, Tenant shall promptly comply with all laws and
\ngovernmental rules now or later in force; with the requirements of any board of
\nfire underwriters or other similar body now or in the future constituted; with
\nany direction or occupancy certificate issued by public officers (“Legal
\nRequirements”), insofar as they relate to the use, or occupancy of the Premises.
\nExcluded are (a) structural changes or changes to the electrical, mechanical, or
\nplumbing systems of the Building, except to the extent necessitated by Tenant’s
\nacts or by improvements made for Tenant (other than the tenant improvements to
\nbe made pursuant to this Lease by Landlord); (b) alterations or improvements to
\nthe Building as a whole or the Premises of tenants generally that are not by law
\nthe tenants’ responsibility with which to comply; and (c) work necessitated by
\ndefects in the construction of the Building. Landlord shall comply in a timely
\nmanner with all Legal Requirements that are not Tenant’s responsibility under
\nthis Section.<\/p>\n
Section 15. Assignment and Subletting.
\n (a) Except as otherwise expressly permitted by this Lease, Tenant shall
\nnot, without the prior written consent of Landlord, which shall not be
\nunreasonably withheld or delayed, assign or hypothecate this Lease or any
\ninterest in this Lease, sublet the Premises or any part of them, or license the
\nuse of the Premises by any party other than Tenant or Freeloader, Inc. Neither
\nthis Lease nor any interest in this Lease shall be assignable without the
\nconsent of Landlord, which shall not be unreasonably withheld or delayed. Any of
\nthe previous acts without consent shall be void and shall, at the option of
\nLandlord, constitute a default under this Lease. Landlord shall respond to
\nTenant’s request for consent to an assignment or sublease within fifteen (15)
\ndays of receiving a written request from Tenant and receipt of documentation
\nregarding description and financial condition of proposed Tenant and other
\nnecessary information as required by Landlord. Notwithstanding any other
\nprovision of this Lease, Tenant shall have the right to assign this Lease or
\nsublet any portion of the Premises to an entity controlling, controlled by or
\nunder common control with Tenant or in connection with a merger or consolidation
\nof or into Tenant of the sale of all or substantially all of Tenant’s assets
\n(any of the foregoing be “Affiliate Transfers)”.<\/p>\n
(b) No sublessee shall have a right to further sublet without Landlord’s
\nprior consent, which may not be unreasonably withheld, and any assignment by a
\nsublessee of the sublease shall be subject to Landlord’s prior consent in the
\nsame manner as if Tenant were entering into a new sublease.<\/p>\n
(c) In the case of an assignment or subletting (other than a sublease in an
\naffiliate transfer), any sums or economic consideration received by Tenant as a
\nresult of the assignment or subletting<\/p>\n
14<\/p>\n
shall be paid to Landlord after first deducting (i) in the case of a sublet, the
\nrental due under this Lease, prorated to reflect only rental allocable to the
\nsublet portion of the Premises, (ii) any tenant improvements paid for by Tenant,
\nand (iii) the cost of any real estate commissions, reasonable attorney fees, or
\nother out-of-pocket expenses paid by Tenant in connection with the assignment or
\nsubletting.<\/p>\n
(d) Regardless of Landlord’s consent, no subletting or assignment shall
\nrelease or alter Tenant’s obligation or primary liability to pay the rental and
\nperform all other obligations under this Lease. Consent to one assignment or
\nsubletting shall not be deemed consent to any subsequent assignment or
\nsubletting. In the event of default by any assignee or successor of Tenant in
\nthe performance of any of the terms of this Lease, after notice of default to
\nTenant pursuant to Section 18 and the expiration of any applicable cure period,
\nLandlord may proceed directly against Tenant without the necessity of exhausting
\nremedies against the assignee or successor.<\/p>\n
(e) If Tenant assigns this Lease, sublets the Premises, or requests the
\nconsent of Landlord to any assignment, subletting, hypothecation, or other
\naction requiring Landlord’s consent under this Lease, Tenant shall pay
\nLandlord’s reasonable attorney fees incurred in connection with the action, not
\nto exceed nine hundred ($900.00) dollars.<\/p>\n
Section 16. Rules.
\n Tenant shall comply with the rules attached to and incorporated in this
\nLease as Exhibit C, and after notice, with all reasonable modifications and
\nadditions to these rules, from time to time promulgated in writing by Landlord
\nprovided such modifications and additions apply generally to all tenants of the
\nBuilding. Landlord shall not be responsible to Tenant for the nonperformance of
\nany of these rules by any other tenant or occupant of the Building, but Landlord
\nshall take reasonable steps to enforce any rules, the nonperformance of which by
\nother tenants materially and adversely affects Tenant in the use of the
\nPremises. However, if any rule conflicts with any term, covenant, or condition
\nof this Lease, this Lease shall prevail. In addition, no rule, or any subsequent
\namendments to it adopted by Landlord shall alter, reduce, or adversely affect
\nany of Tenant’s rights or enlarge Tenant’s obligations under this Lease.<\/p>\n
Section 17. Entry by Landlord.
\n Landlord may enter the Premises at reasonable hours with notice to Tenant
\nto (a) inspect the Premises; (b) exhibit the Premises to prospective purchasers,
\nlenders tenants; (c) determine whether Tenant is complying with all obligations
\nunder this Lease; (d) supply janitorial service and any other services to be
\nprovided by Landlord under this Lease; (e) post notices of nonresponsibility;
\nand (f) make repairs or perform maintenance required of Landlord by this Lease,
\nmake repairs to any adjoining space or utility services, or make repairs,
\nalterations, or improvements to any other portion of the Building. However, all
\nthis work shall be done as promptly as reasonably possible and cause as little
\ninterference to Tenant as reasonably possible. Subject to Landlord’s
\nundertakings in the previous sentence, Tenant waives any damage claims for
\ninconvenience to or interference with Tenant’s business or loss of occupancy or
\nquiet enjoyment of the Premises caused by Landlord’s entry. At all times
\nLandlord shall have a key with which to unlock the doors on the Premises,
\nexcluding Tenant’s vaults, safes, and similar areas designated as secure areas
\nin writing by Tenant in advance. In an emergency, Landlord shall have the right
\nto use any means that Landlord deems proper to open Tenant’s doors and enter the
\nPremises. Entry to the Premises by Landlord in an emergency shall not be
\nconstrued as a forcible or unlawful entry, a detainer, or an actual or
\nconstructive eviction of Tenant.<\/p>\n
15<\/p>\n
Section 18. Events of Default.
\nThe following events shall constitute events of default under this Lease (each
\nan Event of Default):<\/p>\n
(a) failure by Tenant to pay when due any rent or other sum payable under
\nthis Lease and the continuation of this failure for ten (10) or more days after
\nnotice of the default from Landlord;<\/p>\n
(b) failure to make payments of rent when due under this Lease three (3) or
\nmore times during any twelve (12) month period during the term of this Lease;<\/p>\n
(c) a default by Tenant in the performance of any of the terms, covenants,
\nagreements, or conditions in this Lease, other than a default by Tenant in the
\npayment when due of any rent or other sum payable under this Lease, and the
\ncontinuation of the default beyond fifteen (15) days after notice by Landlord
\nor, if the default is curable and would require more than fifteen (15) days to
\nremedy, beyond the time reasonably necessary for cure; provided, however, that
\nif Tenant has defaulted in the performance of the same obligation two (2) or
\nmore times in twelve (12) months and notice of the default has been given by
\nLandlord in each instance, no notice shall be required after this until the
\nexpiration of twelve (12) months without any default by Tenant;<\/p>\n
(d) the bankruptcy or insolvency of Tenant, a transfer by Tenant in fraud
\nof creditors, an assignment by Tenant for the benefit of creditors, or the
\ncommencement of proceedings of any kind by or against Tenant under the Federal
\nBankruptcy Act or under any other insolvency, bankruptcy, or reorganization act,
\nunless Tenant is discharged from voluntary proceedings within ninety (90) days;<\/p>\n
(e) the appointment of a receiver for a substantial part of Tenant’s
\nassets;<\/p>\n
(f) the abandonment of the Premises; and<\/p>\n
(g) the levy upon this Lease or any estate of Tenant under this Lease by
\nattachment or execution and the failure to have the attachment or execution
\nvacated within sixty (60) days.<\/p>\n
Section 19. Termination upon Default.
\n On occurrence of any Event of Default by Tenant, Landlord may, in addition
\nto any other rights and remedies given here or by law, terminate this Lease and
\nexercise remedies relating to it without further notice or demand in accordance
\nwith the following provisions:<\/p>\n
(a) So long as the Event of Default remains uncured, Landlord shall have
\nthe right to give notice of termination to Tenant, and on the date specified in
\nthis notice, this Lease shall terminate.<\/p>\n
(b) If this Lease is terminated, Landlord may, by judicial process, reenter
\nthe Premises, remove all persons and property, and repossess and enjoy the
\nPremises, all without prejudice to other remedies that Landlord may have because
\nof Tenant’s default or the termination.<\/p>\n
(c) If this Lease is terminated by Landlord, Landlord shall have all of the
\nrights and remedies of a landlord provided by Civil Code (S) 1951.2, in addition
\nto any other rights and remedies Landlord may have. The damages which Landlord
\nmay recover shall include, without limitation, (i) the worth at the time of
\naward of the unpaid rent which had been earned at the time of termination; (ii)
\nthe worth at the time of award of the amount by which the unpaid rent which<\/p>\n
16<\/p>\n
would have been earned after termination until the time of the award exceeds the
\namount of the rental loss that Tenant proves could have been reasonably avoided;
\n(iii) the worth at the time of award, computed by discounting the amount at the
\ndiscount rate of the Federal Reserve Bank of San Francisco at the time of award
\nplus one percent (1%), of the amount by which the unpaid rent for the balance of
\nthe term after the time of award exceeds the amount of the fair market value of
\nthe Premises for the balance of the Term; (iv) all reasonable legal expenses and
\nother related costs incurred by Landlord following Tenant’s default; (v) all
\nreasonable costs incurred by Landlord in restoring the Premises to good order
\nand condition to relet the Premises; and (vi) all reasonable costs, including
\nwithout limitation, any brokerage commissions incurred by Landlord in reletting
\nthe Premises. The remedies provided in this Lease are in addition to any other
\nremedies available to Landlord at law, in equity, by statute, or otherwise.<\/p>\n
(d) Even though Tenant has breached this Lease and abandoned the Premises,
\nthis Lease shall continue in effect for so long as Landlord does not terminate
\nTenant’s right to possession, and Landlord may enforce all rights and remedies
\nunder this Lease, including the right to recover the rental as it becomes due
\nunder this Lease. Acts of maintenance or preservation, efforts to relet the
\nPremises, or the appointment of a receiver upon initiative of Landlord to
\nprotect Landlord’s interest under this Lease shall not constitute a termination
\nof Tenant’s right to possession.<\/p>\n
Section 20. Attorney Fees.
\nIf, as a result of a breach or default under this Lease, either party uses an
\nattorney to secure compliance with Lease provisions, to recover damages, to
\nterminate this Lease, or to evict Tenant, the non-prevailing party shall
\nreimburse the prevailing party, on demand, for all reasonable attorney fees and
\nexpenses incurred by the prevailing party in enforcing its rights under this
\nLease.<\/p>\n
Section 21. Eminent Domain.
\nIf all or any part of the Premises are taken through eminent domain, this Lease
\nshall terminate for the part taken as of the date of taking. For a partial
\ntaking, either Tenant shall have the right to terminate this Lease for the
\nbalance of the Premises by notice to Landlord within thirty (30) days after the
\ntaking. In the event of any taking, Landlord shall be entitled to all
\ncompensation, damages, income, rent, awards, or any interest that may be paid in
\nconnection with the taking, except for any portion specifically awarded to
\nTenant for moving expenses, trade fixtures, equipment, and any leasehold
\nimprovements in the Premises to the extent of the then unamortized value of
\nthese improvements for the remaining term of the Lease as determined in the
\naward. However, Tenant shall have no claim against Landlord for the value of any
\nunexpired term of this Lease or otherwise, other than for prepaid rent. In the
\nevent of a partial taking of the Premises that does not result in a termination
\nof this Lease, the subsequent monthly rental shall be equitably reduced.<\/p>\n
Section 22. Estoppel Certificate.
\n At any time with at least fifteen (15) days’ prior notice by Landlord,
\nTenant shall execute, acknowledge, and deliver to Landlord a certificate in a
\nform satisfactory to Landlord certifying, to the best of Tenant’s knowledge, to
\nthe extent true: (a) that this Lease is unmodified and in full force or, if
\nthere have been modifications, that this Lease is in full force, as modified,
\ntogether with the date and nature of each modification, (b) the amount of the
\nBase Rent, most recent Escalation Rent, if any, and the date to which the rent
\nhas been paid, (c) that no notice has been received by Tenant of any default
\nthat has not been cured, except defaults specified in the certificate, (d) that
\nno default of Landlord is claimed by Tenant, except defaults specified in the
\ncertificate, and (e) other matters as may be reasonably requested by Landlord.
\nAny certificate may be relied on by<\/p>\n
17<\/p>\n
prospective purchasers, mortgagees, or beneficiaries under any deed of trust on
\nthe Building or any part of it.<\/p>\n
Section 23. Holding Over.
\n (a) If, without objection by Landlord, Tenant holds possession of the
\nPremises after expiration of the term of this Lease, Tenant shall become a
\ntenant from month-to-month on the terms specified in this Lease, except those
\npertaining to the term and any option to extend, but at a monthly rental
\nnegotiable between the Parties, payable in advance on or before the first day of
\neach month. Each party shall give the other notice of intention to terminate the
\ntenancy at least one (1) month prior to the date of termination of a monthly
\ntenancy.<\/p>\n
(b) If, over Landlord’s objection, Tenant holds possession of the Premises
\nafter expiration of the term of this Lease or expiration of the holdover
\ntenancy, Tenant shall be deemed to be a tenant-at-sufferance and, without
\nlimiting the liability of Tenant for unauthorized occupancy of the Premises,
\nTenant shall indemnify Landlord and any replacement tenant for the Premises for
\nany damages or loss suffered by either Landlord or the replacement tenant
\nresulting from Tenant’s failure to vacate the Premises in a timely manner. The
\nmonthly rental shall be at one hundred and fifty percent (150%) of the then
\nprevailing monthly rental paid by tenant.<\/p>\n
Section 24. Security Deposit.
\n Tenant has deposited with Landlord the sum specified in the Basic Lease
\nInformation as the Security Deposit (Deposit). The Deposit shall be held by
\nLandlord as security for the faithful performance by Tenant of all provisions of
\nthis Lease. If Tenant fails to pay rent or other sums due under this Lease or
\ndefaults with respect to any provision of this Lease, and such failure or
\ndefault continues after required notice and the expiration after of any
\napplicable grace period, Landlord may use or apply, such portion of the Deposit
\nas is necessary for the payment of rent or other sums in default, for the
\npayment of any other sums to which Landlord may become obligated because of
\nTenant’s default, or to compensate Landlord for any loss or damage that Landlord
\nmay suffer because of the Tenant’s actions. If Landlord uses or applies the
\nDeposit, Tenant shall, within ten (10) days after demand, deposit cash with
\nLandlord in an amount sufficient to restore the Deposit to the full amount, and
\nTenant’s failure to do so shall be a material breach of this Lease. Landlord
\nshall not be required to keep the Deposit separate from Landlord’s general
\naccounts. If Tenant performs all of Tenant’s obligations under this Lease, the
\nDeposit, or the amount not applied by Landlord shall be returned, without
\ninterest, to Tenant or at Landlord’s option, to the last assignee, if any, of
\nTenant’s interest under this Lease at the expiration of the Term and after
\nTenant has vacated the Premises. No trust relationship is created between
\nLandlord and Tenant with respect to the Deposit.<\/p>\n
Section 25. Landlord’s Liability.
\n Notwithstanding any other term or provision of this Lease, the liability of
\nthe Landlord for its obligations under this lease is limited solely to
\nLandlord’s interest in the Property as the same may from time to time be
\nencumbered, and no personal liability shall at any time be asserted or
\nenforceable against any other assets of Landlord or against Landlord’s
\nstockholders, directors, officers or partners on account of any of the
\nLandlord’s actions or obligations under this Lease. In addition, in the event of
\nthe conveyance of title to the Building or the Project, then from and after the
\ndate of such conveyance, Landlord shall be relieved of all liability with
\nrespect to Landlord’s obligations to be performed under this Lease.<\/p>\n
Section 26. Brokers.<\/p>\n
18<\/p>\n
Tenant and Landlord each warrants and represents to the other that in the
\nnegotiating or making of this Lease neither Tenant nor anyone acting on its
\nbehalf has dealt with any real estate broker or finder who might be entitled to
\na fee or commission for this Lease other than the Tenant’s Broker identified in
\nExhibit A: Basic Lease Information, whose commission is to be paid by Landlord.
\nTenant and Landlord each agrees to indemnify and hold harmless the other from
\nany claim or claims, including costs expenses and attorney’s fees, asserted by
\nany other broker or finder for a commission based upon any dealings with or
\nstatements made by the indemnifying party.<\/p>\n
Section 27. Smoking.
\n Smoking in the offices is prohibited.<\/p>\n
Section 28. Entire Agreement.
\nThere are no oral agreements between Landlord and Tenant affecting this Lease,
\nand this Lease supersedes and cancels all previous negotiations, arrangements,
\nbrochures, agreements, and understandings between Landlord and Tenant or
\ndisplayed by Landlord to Tenant with respect to the subject matter of this
\nLease. There are no representations between Landlord and Tenant other than those
\ncontained in this Lease. All implied warranties, including implied warranties of
\nmerchantability and fitness, are excluded.<\/p>\n
Section 29. Illegality or Unenforceability of Portion of Lease.
\n If any provision of this Lease is determined to be illegal or
\nunenforceable, this determination shall not affect any other provision of this
\nLease, and all other provisions shall remain in full force and effect.<\/p>\n
Section 30. Governing Law.
\n This Lease shall be governed by and construed pursuant to law of the State
\nof California.<\/p>\n
Section 31. Parking.
\n Tenant shall have the option to rent three (3) reserved parking spaces in
\nLot A and five (5) in Lot B from Landlord for the duration of this Lease at the
\nprevailing building rate. Tenant shall be allowed its pro-rata share of parking
\npermits for Lot B so long as spaces are available.<\/p>\n
Section 32. Quiet Enjoyment.
\nLandlord agrees to and shall in the commencement of this Lease place Tenant in
\nquiet possession of the premises and shall secure it in the quiet possession
\nthereof against all persons lawfully claiming the same during the lease term.<\/p>\n
Section 33. Automatic Subordination.
\nIf Landlord delivers to Tenant an agreement (a “Non-Disturbance Agreement”) from
\nthe holder of any Encumbrance and the Lessor under any Underlying Lease that, if
\nany such holder or Lessor forecloses or otherwise exercises its rights under its
\nEncumbrance or if any such Lessor terminates or otherwise exercises its rights
\nunder the Underlying Lease, or if such holder or Lessor otherwise acquires
\nLandlord’s interest in the Lease, such holder or Lessor shall recognize Tenant’s
\nrights under this Lease, shall not disturb Tenant’s occupancy of the Premises
\nunder this Lease, and shall assume Landlord’s obligation under this Lease, then
\nthis Lease shall be subject and subordinate to:
\n (a) The lien of any mortgages, deeds of trust, or other encumbrances of the
\nBuilding and Real Property (“Encumbrances”);<\/p>\n
19<\/p>\n
(b) All present and future ground or underlying leases of the Building and
\nReal Property now or hereafter in force against the Building and Real Property
\n(“Underlying Leases”);
\n (c) All renewals, extensions, modifications, consolidations, and
\nreplacements of the items described in subparagraphs (a) – (b); and
\n (d) All advances made or hereafter to be made on the security of the
\nEncumbrances.<\/p>\n
Despite any other provision of this Section 33, any Encumbrance holder or lessor
\nmay elect that this lease shall be senior to and have priority over that
\nEncumbrance or Underlying Lease whether this lease is dated before or after the
\ndate of the Encumbrance or Underlying Lease.<\/p>\n
Tenant shall agree in each Non-Disturbance Agreement to attorn to the transferee
\nof Landlord’s interest in the Real Property by foreclosure, deed in lieu of
\nforeclosure, exercise of any remedy provided in any Encumbrance or Underlying
\nLease, or operation of law, if requested to do so by the transferee, and to
\nrecognize the transferee as the lessor under this Lease, provided Transferee
\nagrees to Tenant’s quiet possession. The transferee shall not be liable for:<\/p>\n
(a) Any acts, omissions, or defaults of Landlord that occurred before the
\nsale or conveyance; or
\n (b) the return of any security deposit except for deposits actually paid to
\n the transferee.<\/p>\n
Section 34. Temporary Occupancy.
\n From the date of the execution of this Lease until ten business days after
\nthe Commencement Date, Tenant shall have the right to occupy approximately 2,000
\nsquare feet of rentable area on the second floor of the Building shown as
\n“Temporary Space” on Exhibit B attached to this Lease, except that Tenant’s
\nmonthly installment of Base Rent and Escalation Rent with respect to the
\nTemporary Space shall total $1.00 per square foot per month. Such monthly
\npayments shall not commence until Tenant occupies such Temporary Space for the
\nconduct of its business and shall cease as of the day Tenant vacates such
\nTemporary Space. If Tenant occupies such Temporary Space for any portion of a
\ncalendar month, the monthly installment of Base Rent and Escalation Rent due
\nunder this Section 34 shall be prorated according to the fraction of the total
\nnumber of days in such month that Tenant occupies the Temporary Space for the
\nconduct of its business.<\/p>\n
Section 35. Exhibits.
\n The exhibits specified in the Basic Lease Information are attached to this
\nLease and by this reference made a part of it.<\/p>\n
Section 36. Notices.
\n Any notice under this Lease shall be in writing and shall be delivered by
\nhand or sent by certified mail, return receipt requested, to Tenant at Tenant’s
\nAddress for Notice or if to Landlord at Landlord’s Address for Notice, as set
\nforth on Exhibit A attached to this Lease. Any such notice shall be effective at
\nthe earlier of (i) receipt by such notice or (ii) or three business days after
\nbeing so mailed.<\/p>\n
Section 37. Arbitration.
\n Any dispute that arises out of or relating to this Lease or the alleged
\nbreach of this Lease shall, after notice by one party to the other, be submitted
\nto arbitration in accordance with the process set forth in Section 3 (b), but
\nall language referred to in that Section as to Fair Market Rent shall instead
\nrefer to the resolution of any such dispute, and all arbitrators shall be
\nqualified real estate attorneys or other professionals with at least ten (10)
\nyears experience in matters substantially similar to the matter in dispute.<\/p>\n
20<\/p>\n
The parties have executed this Lease as of the date first set forth above.<\/p>\n
Landlord: Tenant:
\nHAMM’S BUILDING ASSOCIATES, a Individual, Inc.
\nCalifornia Limited Partnership
\nby: RHGA, Inc., General Partner<\/p>\n
By: \/s\/ Rubin Glickman By: \/s\/ Robert L. Lentz
\n ————————— ——————————
\nRubin Glickman, President Robert L. Lentz, Vice President<\/p>\n
21<\/p>\n
EXHIBIT “B”<\/p>\n
[DIAGRAM DEPICTING FLOORPLAN APPEARS HERE]<\/p>\n
22<\/p>\n
Exhibit C. Rules<\/p>\n
1. The sidewalks, halls, passages, exits, entrances, shopping malls,
\nelevators, escalators, and stairways of the Building shall not be obstructed by
\nany of the tenants or used for any purpose other than for ingress to and egress
\nfrom their respective Premises. The halls, passages, exits, entrances, shopping
\nmalls, elevators, escalators, and stairways are not for the general public, and
\nLandlord shall in all cases retain the right to control and prevent access to
\nthem by all persons whose presence in the judgment of Landlord would be
\nprejudicial to the safety, character, reputation, and interests of the Building
\nand its tenants. However, nothing here shall be construed to prevent access to
\npersons with whom any tenant normally deals in the ordinary course of business,
\nunless these persons are engaged in illegal activities. No tenant and no
\nemployee or invitee of any tenant shall go on the roof of the Building.<\/p>\n
2. A sign, placard, picture, name, advertisement, or notice visible from
\nthe exterior of any tenant’s Premises shall not be inscribed, painted, affixed,
\nor otherwise displayed by any tenant on any part of the Building without the
\nprior written consent of Landlord. Landlord will adopt and furnish to tenants
\ngeneral guidelines relating to signs inside the Building on the office floors.
\nEach tenant shall conform to these guidelines, but may request approval of
\nLandlord for modifications, which will not be unreasonably withheld. All
\napproved 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
\nwill not be unreasonably withheld. Material visible from outside the Building
\nwill not be permitted.<\/p>\n
3. The Premises of each tenant shall not he used for the storage of
\nmerchandise held for sale to the general public or for lodging. No cooking shall
\nhe done or permitted by any tenant on the Premises, except that (a) each tenant
\nmay establish and operate a lunchroom facility for use by tenant’s employees,
\nand (b) each tenant may use and install food and beverage vending machines and
\nUnderwriters’ Laboratory approved microwave ovens and equipment for brewing
\ncoffee, tea, hot chocolate, and similar beverages, provided that adequate
\nprovisions are made for venting and control of odors and all facilities and
\nequipment are in accordance with all applicable federal, state, and city laws,
\ncodes, ordinances, rules, and regulations.<\/p>\n
4. No tenant shall employ any person other than Landlord’s janitorial
\nservice for cleaning the Premises, unless otherwise approved by Landlord. No
\nperson other than those approved by Landlord shall be permitted to enter the
\nBuilding to clean it. No tenant shall cause any unnecessary labor because of
\ncarelessness or indifference in the preservation of good order and cleanliness.
\nJanitor service will not be furnished on nights when rooms are occupied after
\n9:30 p.m. unless, by prior arrangement with Landlord, service is extended to a
\nlater hour for specifically designated rooms.<\/p>\n
5. Landlord will furnish each tenant, free of charge, two keys to each door
\nlock in the Premises. Landlord may make a reasonable charge for any additional
\nkeys. No tenant shall have any keys made. No tenant shall alter any lock or
\ninstall a new or additional lock or any bolt on any door of the premises without
\nthe prior consent of Landlord which will not be unreasonably withheld. The
\ntenant shall in each case furnish Landlord with a key for any lock. Each tenant,
\nupon the termination of the tenancy, shall deliver to Landlord all keys to doors
\nin the Building that have been furnished to the tenant.<\/p>\n
23<\/p>\n
6. The freight elevator shall be available for use by all tenants in the
\nBuilding, subject to reasonable scheduling as Landlord deems appropriate. The
\npersons employed to move equipment in or out of the Building must be acceptable
\nto Landlord. Landlord shall have the right to prescribe the weight, size, and
\nposition of all equipment, materials, furniture, or other property brought into
\nthe Building. Heavy objects shall, if considered necessary by Landlord, stand on
\nwood strips of a thickness necessary to properly distribute the weight. Landlord
\nwill not be responsible for loss of or damage to any property from any cause,
\nand all damage done to the Building by moving or maintaining 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 any
\nkerosene, gasoline, or inflammable or combustible fluid or material other than
\nlimited quantities reasonably necessary for the operation or maintenance of
\noffice equipment, and may not, without Landlord’s prior approval, use any method
\nof heating or air conditioning other than that supplied by Landlord. No tenant
\nshall use or keep any foul, noxious, or hazardous gas or substance in the
\nPremises, or permit or suffer the Premises to be occupied or used in a manner
\noffensive or objectionable to Landlord or other occupants of the Building
\nbecause of noise, odors, or vibrations, or interfere in any way with other
\ntenants or those having business in the Building. No pets shall be kept in the
\nPremises.<\/p>\n
8. Landlord shall have the right, exercisable without notice and without
\nliability to any Tenant, to change the name and street address of the Building.<\/p>\n
9. Landlord reserves the right to exclude from the Building between the
\nhours of 6:00 p.m. and 7:00 a.m. and at all hours on Saturdays, Sundays, and
\nlegal holidays any person who does not present a proper access card and or other
\nidentification as a tenant or an employee of a tenant, or who does not otherwise
\npresent proper authorization by a tenant for access to the premises. Each tenant
\nshall be responsible for all persons for whom it authorizes access and shall be
\nliable to Landlord for all acts of these persons. Landlord shall in no case be
\nliable for damages for any error with regard to the admission to or exclusion
\nfrom the Building of any person. In the case of invasion, mob, riot, public
\nexcitement, or other circumstances rendering an action advisable in Landlord’s
\nopinion, Landlord reserves the right to prevent access to the Building during
\nthe continuance of the circumstance by any action Landlord deems appropriate.<\/p>\n
10. A directory of the Building will be provided to display the name and
\nlocation of tenants, their subtenants, and a reasonable number of the principal
\nofficers and employees of tenants, and Landlord reserves the right to exclude
\nany other names. Any additional name that a tenant desires to have added to the
\ndirectory shall be subject to Landlord’s approval and may be subject to a
\ncharge.<\/p>\n
11. No curtains, draperies, blinds, shutters, shades, screens, or other
\ncoverings, hangings, or decorations shall be attached to, hung, or placed in, or
\nused in connection with any exterior window in the Building without the prior
\nconsent of Landlord. If consented to by Landlord, these items shall be installed
\non the office side of the standard window covering and shall in no way be
\nvisible from the exterior of the Building.<\/p>\n
12. Messenger services and suppliers of bottled water, food, beverages, and
\nother products or services shall be subject to reasonable regulations as may be
\nadopted by Landlord.<\/p>\n
13. Each tenant shall see that the doors of the premises are closed and
\nlocked and that all water faucets or apparatus, cooking facilities, and office
\nequipment, excluding office equipment<\/p>\n
24<\/p>\n
required to be operative at all times, are shut off before the tenant or
\nemployees leave the Premises at night, so as to prevent waste or damage. For any
\ndefault or carelessness in this regard the tenant shall be responsible for any
\ndamage sustained by other tenants or occupants of the Building or Landlord. On
\nmultiple-tenancy floors, tenants shall keep the doors to the Building corridors
\nclosed at all times except for ingress and egress.<\/p>\n
14. The toilets, urinals, wash bowls, and other rest room facilities shall
\nnot be used for any purpose other than that for which they were constructed. No
\nforeign substance of any kind shall be thrown in them, and the expense of any
\nbreakage, stoppage, or damage resulting from the violation of this rule shall be
\nborne by the tenant who, or whose employees or invitees, have caused it.<\/p>\n
15. Except with the prior consent of Landlord, no tenant shall sell, or
\npermit the sale at retail, of newspapers, magazines, periodicals, theater
\ntickets, or any other goods or merchandise to the general public in the
\nPremises, nor shall any tenant carry on, permit, or allow any employee or other
\nperson to carry on the business of stenography, typewriting, or any similar
\nbusiness in or from the Premises for the service or accommodation of occupants
\nof any other portion of the Building, nor shall the Premises of any tenant be
\nused for manufacturing of any kind, or any business or activity other than that
\nspecifically provided for in the tenant’s lease.<\/p>\n
16. No tenant shall install any antenna, loudspeaker, or other device on
\nthe roof or exterior walls of the Building.<\/p>\n
17. No motorcycles or motor scooters shall be parked or stored anywhere in
\nthe Building other than the garage of the Building, and no bicycles may be
\nparked or stored anywhere in the Building other than in facilities provided in
\nthe garage or the Common Area of the Building.<\/p>\n
18. Hand trucks or other material handling equipment, except those equipped
\nwith rubber tires and side guards, may not be used in any portion of the
\nBuilding unless approved by Landlord.<\/p>\n
19. Each tenant shall store refuse within that tenant’s premises. No
\nmaterial of a nature that it may not be disposed of in the ordinary and
\ncustomary manner of removing and disposing of refuse in the city of San
\nFrancisco without being in violation of any law or ordinance governing this
\ndisposal shall be placed in the refuse boxes or receptacles. All refuse disposal
\nshall be made only through entryways and elevators provided for these purposes
\nand at the times Landlord shall designate.<\/p>\n
20. Canvassing, peddling, soliciting, and distributing handbills or any
\nother written materials in the Building is prohibited, and each tenant shall
\ncooperate to prevent this type of occurrence.<\/p>\n
21. Smoking of cigarettes, cigars, pipes, or any other form of tobacco is
\nprohibited in the Building. Tenant shall not permit its employees, guest or
\ninvitees to smoke in any portion of the Building or Premises.<\/p>\n
22. The requirements of the tenants will be attended to only on application
\nby telephone or in person at the office of the Building. Employees of Landlord
\nshall not perform any work or do anything outside of their regular duties unless
\nunder special instructions from Landlord.<\/p>\n
25<\/p>\n
23. Landlord may waive any one or more of these Rules and Regulations for
\nthe benefit of any particular tenant, so long as Tenant’s use of the Premises is
\nnot adversely affected by the waiver, and no waiver by Landlord shall be
\nconstrued as a waiver of the Rules in favor of any other tenant, nor prevent
\nLandlord from later enforcing any of the Rules against any of the tenants of the
\nBuilding.<\/p>\n
24. These Rules are in addition to, and shall not be construed to modify or
\namend, in whole or in part, the terms, covenants, agreements, and conditions of
\nany lease of Premises in the Building.<\/p>\n
25. Landlord reserves the right to make other reasonable rules as Landlord
\njudges may be needed for the safety, care, and cleanliness of the Building, and
\nfor the preservation of good order, provided that Tenant’s use and occupancy of
\nthe Premises shall not be adversely affected by other rules.<\/p>\n
26<\/p>\n
Exhibit D.<\/p>\n
CONSTRUCTION RIDER
\n ——————<\/p>\n
1. Tenant Improvements
\n ——————-
\n Landlord shall, with reasonable diligence through a contractor selected by
\nLandlord construct and install in the Premises the improvements and fixtures
\n(the “Tenant Improvements”) provided for on the attached Exhibit E
\n(“Construction Documents”). Improvements consisting of the type and amount of
\nwork and materials described on Exhibit E attached to this Construction Rider
\nare referred to herein as “Building Standard Tenant Improvements.” All Tenant
\nImprovements in addition to or in substitution for or modification of the
\nBuilding Standard Tenant Improvements are referred to herein as “Above-Standard
\nTenant Improvements.”<\/p>\n
2. Plans
\n —–
\n Landlord will retain Keith Hooks as the space planner\/architect for the
\nPremises (“Space Planner”) who will prepare Construction Documents for the
\nPremises.<\/p>\n
Additional interior decorating services and advice on the furnishings and
\ndecoration of the Premises, such as the selection of fixtures, furnishings,
\ndesign of millwork or other Above Standard Tenant Improvements required by
\nTenant, shall be provided by Tenant at its expense, but shall be subject to the
\nreasonable approval of Landlord.<\/p>\n
3. Construction
\n ————
\n Upon Landlord’s receipt of the Construction Documents by the Space Planner,
\nLandlord shall use best efforts to cause the Tenant Improvements to be
\nSubstantially Completed on or prior to the Scheduled Commencement Date. The term
\n“Substantially Complete” or “Substantial Completion” as used in the Lease or
\nthis Agreement shall mean: (1) the shell and core of the Building are complete
\nand in compliance with all applicable laws, statutes, codes, rules and
\nregulations (collectively, “Laws”) and all of the Building’s heating,
\nventilating, air-conditioning (“HVAC”), and plumbing, life safety, telephone
\ncable, mechanical and\/or electrical systems (collectively, “Building Systems”)
\nare operational to the extent necessary to service the Premises; (2) Landlord
\nhas sufficiently completed the Tenant Improvements (except for finishing
\ndetails, minor omissions, decorations and mechanical adjustments of the type
\nnormally found on an architectural “punch list,” and minor punch list items the
\ncompletion of which will not interfere with Tenant’s ability to conduct Tenant’s
\nnormal business operations in the Premises) such that Tenant can conduct normal
\nbusiness operations from the Premises; and (3) Landlord has obtained a
\ncertificate of occupancy for the Building, or a temporary certificate of
\noccupancy for that portion of the building that includes all of the Premises, or
\nits equivalent.<\/p>\n
Following Substantial Completion of the Tenant Improvements and within
\nthirty (30) days after Tenant takes possession of the Premises, Landlord and
\nTenant shall inspect the Premises and jointly prepare a “punch list” of agreed
\nitems of construction remaining to be completed. Landlord shall complete the
\nitems set forth in the punch list as soon as reasonably possible. Tenant shall
\ncooperate with and accommodate Landlord and its workers in completing the items
\non the punch list..<\/p>\n
The Tenant Improvements shall be limited to the Building Standard Tenant
\nImprovements, and any additional alterations or improvements to the Premises
\ndesired by Tenant shall be made<\/p>\n
27<\/p>\n
after the commencement of the term of the Lease and shall be subject to the
\nprovisions of Section 8- “Alterations” of the Lease.<\/p>\n
4. Cost of Tenant Improvements
\n —————————
\nLandlord shall contribute up to Five Dollars and Seventy-seven Cents ($5.77) per
\nrentable square foot towards the cost of the Tenant Improvements (The “Tenant
\nImprovement Allowance”) from existing “As Is” condition. The Tenant Improvement
\ncost to be paid from the Tenant Improvement Allowance, shall include but not be
\nlimited to:<\/p>\n
a) All costs of permit, architecture, engineering plans and
\n specifications for the Tenant Improvements.
\n b) All costs of obtaining building permits and other necessary
\n authorizations for the City of San Francisco.
\n c) All direct and indirect costs of procuring, constructing and installing
\n the Tenant Improvements in the Premises.<\/p>\n
Tenant shall reimburse Landlord for all costs of completing the Tenant
\nImprovements in excess of the Tenant Improvement Allowance.<\/p>\n
5. Changes
\n ——-
\n If Tenant requests any change, addition or alteration in or to any
\nConstruction Documents (“Changes”), Landlord shall cause the architect and
\ncontractor to prepare additional Plans and estimates implementing such Change.
\nAs soon as practicable after the completion of such additional plans and
\nestimates, the Landlord shall provide Tenant with the estimated cost of the
\nChanges. Within three (3) working days after receipt of such cost estimate,
\nTenant shall notify Landlord in writing whether Tenant approves the Change.<\/p>\n
If Tenant approves the Change, Landlord shall proceed with the Change and Tenant
\nshall be liable for any additional cost resulting from the Change including
\narchitectural costs, permit and related fees, and all costs of construction
\nrelated to said change. If Tenant fails to approve the Change within such three
\n(3) day period, construction of the Tenant Improvements shall proceed as
\nprovided in accordance with the original Construction Documents.<\/p>\n
6. Delays
\n ——
\n Tenant shall be responsible for, and shall pay to Landlord, any and all
\ncosts and expenses incurred by Landlord in connection with any delay in the
\ncommencement or completion of any Tenant Improvements and any additional cost
\ncaused by (i) Tenant’s failure to approve any space plan or Construction
\nDocuments within the time periods herein, (ii) any delays in obtaining any items
\nor materials constituting part of the Above Standard Tenant Improvements
\nrequested by Tenant, or (iii) any other delay requested or caused by Tenant
\n(“Tenant Delay”). The term “Landlord Delay” as used in this Agreement, shall
\nmean any delay in the completion of the Tenant Improvements which is due to any
\nact or omission of Landlord (wrongful, negligent or otherwise), its agents or
\ncontractors (including acts or omissions while acting as agent or contractor for
\nTenant). The term Landlord Delay shall include, but shall not be limited to any:
\n(1) delay in the giving of authorizations or approvals by Landlord; (2) delay
\nattributable to the acts or failures to act, whether willful, negligent or
\notherwise, of Landlord, its agents or contractors, where such acts or failures
\nto act delay the completion of the Tenant Improvements; and (3) delay
\nattributable to Landlord’s failure to allow Tenant sufficient access to the
\nBuilding and\/or Premises during the move-in period to move into the Premises
\nover one (1) weekend. In no event shall Tenants<\/p>\n
28<\/p>\n
remedies or entitlements for the occurrence of a Landlord Delay be abated,
\ndeferred, diminished or rendered inoperative because of a prior, concurrent, or
\nsubsequent delay resulting from any action or inaction of Tenant. No Landlord
\nDelay shall be deemed to have occurred unless and until Tenant has given written
\nnotice to Landlord specifying the action or inaction which Tenant contends
\nconstitutes a Landlord Delay. If such action or inaction is not cured within
\nfive (5) business days after Landlord’s receipt of such notice, then a Landlord
\nDelay, as set forth in such notice, shall be deemed to have occurred commencing
\nas of the date Landlord received such notice and continuing for the number of
\ndays the Substantial Completion of the Premises was in fact delayed as a direct
\nresult of such action or inaction.<\/p>\n
Notwithstanding the Commencement Date provided in the Lease, Tenant’s
\nobligation for the payment of rent thereunder shall not commence until Landlord
\nhas substantially completed all work to be performed by Landlord as set forth
\nherein; provided, however, that<\/p>\n
(a) if Landlord is delayed in Substantially Completing the Tenant
\nImprovements solely as a result of Tenant Delay, then the abatement of rent
\nprovided for herein shall continue only until the date on which Landlord would
\nhave Substantially Completed the Tenant Improvements but for such delays.<\/p>\n
(b) in the event Landlord is unable to tender possession of the
\nPremises, Substantially Complete, to Tenant on the Scheduled Commencement Date
\ndue to acts of force majeure delay or Landlord Delay, the Commencement Date, and
\nthe commencement of the abatement of rent afforded Tenant, shall be postponed
\nuntil the date upon which Landlord shall tender possession of the Premises with
\nthe Tenant Improvements Substantially Complete to Tenant. Additionally, to the
\nextent that Landlord is unable to so tender possession due to Landlord Delay,
\nTenant shall receive one (1) additional day of rental abatement for each such
\nday of Landlord Delay.<\/p>\n
7. Commencement of Term
\n ——————–
\n Upon Substantial Completion of the Tenant Improvements, Landlord shall
\ndeliver possession of the Premises to Tenant. If Landlord has not Substantially
\nCompleted the Tenant Improvements and tendered possession of the Premises to
\nTenant on or before the Scheduled Commencement Date, or if Landlord, using its
\nbest efforts, is unable for any other reason to deliver possession of the
\nPremises to Tenant on or before such date, neither Landlord nor its
\nrepresentatives shall be liable to Tenant for any damage resulting from the
\ndelay in completing such construction obligations and\/or delivering possession
\nto Tenant and the Lease shall remain in full force and effect unless and until
\nit is terminated under the express provisions of this Paragraph. In such event,
\nthe Commencement Date shall be the actual date of delivery of possession of the
\nSubstantially Completed Premises to Tenant; provided, however, that if and to
\nthe extent that any delays in the Commencement Date are attributable to (i)
\ndelays by Tenant in submitting information to the Space Planner or in approving
\nConstruction Documents, (ii) any delays in obtaining any items or materials
\nconstituting part of the Above Standard Tenant Improvements requested by Tenant,
\nor (iii) any other delay requested by or caused by Tenant Delay, then the term
\nof the Lease shall commence and the Commencement Date shall be deemed to have
\noccurred on the date which Landlord would have Substantially Completed the
\nPremises and tendered the premises to Tenant but for such Tenant Delay.<\/p>\n
8. Access to Premises
\n ——————
\n Landlord, at its discretion, may allow Tenant or Tenant’s Representatives
\nto enter the Premises prior to the Commencement Date to permit Tenant to make
\nthe Premises ready for its use<\/p>\n
29<\/p>\n
and occupancy; provided, however, that prior to such entry of the Premises,
\nTenant shall provide evidence reasonably satisfactory to Landlord that Tenant’s
\ninsurance, as described in Section 12- “Insurance,” shall be in effect as of the
\ntime of such entry. Such permission may be revoked at any time upon twenty-four
\n(24) hours notice, and Tenant or its representatives shall not interfere with
\nLandlord or Landlord’s contractor in completing the Tenant Improvements.<\/p>\n
Tenant agrees that Landlord shall not be liable in any way for any injury,
\nloss or damage which may occur to any of Tenant’s property placed upon or
\ninstalled in the Premises prior to the Commencement Date, the same being at
\nTenant’s sole risk, and Tenant shall be liable for all injury, loss or damage to
\npersons or property arising as a result of such entry of the Premises by Tenant
\nor its representatives.<\/p>\n
9. Ownership of Tenant Improvements
\n ——————————–
\n All Tenant Improvements except Tenant’s trade fixtures, equipment and
\npersonal property, whether Building Standard or Above Standard, and whether
\ninstalled by Landlord or Tenant, shall become a part of the Premises, shall be
\nthe Property of Landlord and shall be surrendered by Tenant with the Premises,
\nwithout any compensation to Tenant, at the expiration or termination of the
\nLease in accordance with Section 8- “Alterations” of the Lease.<\/p>\n
[Initials of Landlord] [INITIALS APPEAR HERE]
\n ———————-<\/p>\n
[Initials of Tenant] [INITIALS APPEAR HERE]
\n ———————-<\/p>\n
30<\/p>\n
Exhibit E.
\n Exhibit E – Construction Documents
\n ———<\/p>\n
The following construction work shall be performed:<\/p>\n
1. entire space recarpetted with 32 oz. glue-down carpet<\/p>\n
2. entire space will be repainted<\/p>\n
3. pursuant to attached drawing, the two work areas and several office walls
\n will be demolished<\/p>\n
31<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7849],"corporate_contracts_industries":[9510],"corporate_contracts_types":[9583,9579],"class_list":["post-41795","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-individual-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\/41795","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=41795"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41795"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41795"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41795"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}