SHORT TERM LEASE AGREEMENT
THIS SHORT TERM LEASE AGREEMENT ("Lease") is made and entered into as
of this 21st day of April , 2000, by and between the Landlord and Tenant
hereinafter named.
1. Definitions and Basic Provisions.
The following are some of the basic lease information and defined terms
used in this Lease:
(a) "Landlord": EOP-ONE MARKET, LLC., a Delaware limited liability
company.
(b) "Landlord Address": EOP-ONE MARKET, LLC., a Delaware limited liability
company, do Equity Office Properties Trust, One Market, Spear Tower,
Suite 725. Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, Attention: Building
Manager, with a copy of all notices to Equity Office Properties Trust,
Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000,
Attention: Regional Counsel -Pacific Region.
(c) `Tenant": INTERNET CAPITAL GROUP, INC., a Delaware corporation.
(d) "Tenant Address": Xxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx, 00000,
Attention: Chief Financial Officer.
(e) "Premises": approximately 20,979 rentable square feet on the 3rd floor
(Suite Nos. 307 and 375) of the Spear Tower in the building known as
One Market located at One Market San Francisco, California (the
"Building"), such Premises being shown and outlined on the plan
attached hereto as Exhibit A.
(f) "Lease Term" shall mean the period commencing on April 10, 2000, and
ending on the date (the "Termination Date") which is the later to
occur of (1) the date which is 3 days following Substantial Completion
(as defined in the New Lease) of the Initial Alterations and the ADA
Modifications (as defined in the New Lease) in the Tenant's premises
on the 18th, 19th and 20th floors as contemplated by the New Lease,
and (2) March 31, 2001, unless sooner terminated as provided herein.
Notwithstanding the foregoing, (i) in the event Landlord and Tenant
have not mutually executed and delivered the New Lease by March 31,
2001. the Termination Date shall be March 31, 2001, and (ii) in the
event Landlord and Tenant have mutually executed and delivered the New
Lease by March 31, 2001, but the Initial Alterations and the ADA
Modifications have not been completed by June 30, 2001, then the
Termination Date shall be June 30, 2001.
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(g) "Base Monthly Rent": the sum of $113,636.25 (i.e. $65.00 per rentable
square foot per annum) due and payable on or before the first day of
each calendar month at the office of Landlord during the Lease Term
without prior demand, subject to adjustment as hereinafter provided,
provided that the Base Monthly Rent for the first full calendar month
of the Lease Term and any partial calendar month at the beginning of
the Lease Term shall be payable upon the execution of this Lease by
Tenant. Base Monthly Rent for any partial month shall be prorated.
(h) "Security Deposit": the sum of $0.00.
(i) "Permitted Use": general office use and for no other purpose
whatsoever.
(j) "Utilities Charge": the sum of $0.00, due and payable, as additional
rent, on or before the first day of each calendar month, provided that
the Utilities Charge for the first full calendar month of the Lease
Term and any partial calendar month at the beginning of the Lease Term
shall be payable upon the execution of this Lease by Tenant. The
Utilities Charge shall increase, as reasonably determined by Landlord,
on the first and each succeeding annual anniversary of this Lease.
(k) All Base Monthly Rent, additional rent and other charges due hereunder
shall be made payable to the order of Equity Office Properties or such
other party as Landlord may direct. All such payments shall be
forwarded to: EOP Operating Limited Partnership, DBA Xxx Xxxxxx Xxxxx,
Xxxx #0000, Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000, or such other address
as Landlord may direct.
(l) "New Lease": the proposed lease between Landlord and Tenant for
approximately 55,207 rentable square feet described as Suite Nos.
1800, 1900 and 2000 on the 18th, 19th and 20th floors of the Building.
2. Granting Clause. Subject to and upon the terms herein set forth, Landlord
leases to Tenant and Tenant leases from Landlord the Premises, together
with the right, in common with others, to use the common areas of the
Building.
3. Services by Landlord.
A. Landlord agrees to furnish Tenant with the following services: (1)
Water service for use in the lavatories on each floor on which the
Premises are located; (2) Heat and air conditioning in season during
normal business hours of the Building, at such temperatures and in
such amounts as are standard for comparable buildings or as required
by governmental authority. Tenant, upon such advance notice as is
reasonably required by landlord, shall have the right to receive HVAC
service during hours other than normal business hours of the Building.
Tenant shall pay Landlord the standard charge for the additional
service as reasonably determined by Landlord from time to time; (3)
Janitor service on business days. If Tenant's use, floor covering or
other improvements require special services in excess of the
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standard services for the Building, Tenant shall pay the additional
cost attributable to the special services; (4) Elevator service; (5)
Electricity to the Premises for general office use; and (6) such other
services as Landlord reasonably determines are necessary or
appropriate for the Property
B. Landlord's failure to furnish, or any interruption or termination of,
services due to the application of Laws, the failure of any equipment,
the performance of repairs, improvements or alterations, or the
occurrence of any event or cause beyond the reasonable control of
Landlord (a "Service Failure") shall not render landlord liable to
Tenant, constitute a constructive eviction of tenant, give rise to an
abatement of Rent, nor relieve Tenant from the obligation to fulfill
any convenant or agreement. However, if the Premises, or a material
portion of the Premises, is made untenantable for a period in excess
of 3 consecutive business days as a result of the Service Failure,
then Tenant, as its sole remedy, shall be entitled to receive an
abatement of Rent payable hereunder during the period beginning on the
4th consecutive business day of the Service Failure and ending on the
day the service has been restored. If the entire Premises has not been
rendered untenantable by the Service Failure, the amount of abatement
that Tenant is entitled to receive shall be prorated based upon the
percentage of the Premises rendered untenantable and not used by
Tenant. In no event, however, shall Landlord be liable to Tenant for
any loss or damage, including the theft of Tenant's personal property,
arising out of or in connection with the failure of any security
services, personnel or equipment.
4. PAYMENTS
(a) Tenant shall pay to Landlord all rents and other sums required to be
paid under this Lease without demand, setoff or deduction whatsoever
at the times and in the manner provided. The obligation of Tenant to
pay Rent is an independent covenant, and no act or circumstance,
whether constituting breach of any covenant by Landlord or not, shall
release Tenant of this obligation.
(b) Tenant shall pay to Landlord, as additional rent, a reasonable charge
for all replacements of electric lamp bulbs, fluorescent or otherwise,
and ballasts following the initial installation by Landlord.
(c) Tenant shall pay to Landlord, as additional rent, all charges for any
miscellaneous services, goods, or materials furnished by Landlord at
Tenant's request which are not required to be furnished by Landlord
under this Lease.
(d) If applicable, Tenant shall pay to Landlord, as additional rent, the
Utilities Charge described in Section 1 above.
(e) Tenant shall pay to Landlord, as additional rent, any rent, sales or
use tax or other similar taxes, if any, levied or imposed by any city,
state, county or other
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governmental body as a result of Tenant's occupancy, lease or use of
the Premises.
(f) In the event that payment of any amount required to be paid by Tenant
pursuant to this Lease is not made within 5 days of the date when due,
a service fee of 5% of the delinquent amount will be due and payable
immediately to Landlord as additional rent, plus interest from the
date such payment is due at the lesser of (i) the greatest per annum
rate of interest permitted from time to time under applicable law (the
"maximum Rate") and (ii) the per annum interest rate publicly
announced by The First National Bank of Chicago, or any successor
thereof, from time to time (whether or not charged in each instance)
as the prime or base rate in Chicago, Illinois (the "Prime Rate") plus
5%, provided that Tenant shall be entitled to a grace period of 5 days
after Tenant's receipt of written notice of such delinquencies from
Landlord for the first 2 late payments of Rent in a given calendar
year.
(g) All payments required from Tenant (except Base Monthly Rent) shall be
deemed additional rent hereunder. The Base Monthly Rent and additional
rent hereinafter is referred to, collectively, as "Rent".
5. Transfer. Tenant shall not assign, sublease, transfer or encumber this
Lease or any interest therein or grant any license, concession or other
right of occupancy of the Premises or any portion thereof or otherwise
permit the use of the Premises or any portion thereof by any party other
than Tenant (any of which events is hereinafter called a "Transfer")
without the prior written consent of Landlord, which consent may be
withheld in Landlord's sole discretion. Landlord shall have the right to
transfer and assign, in whole or in part, all of its interests, rights, and
obligations hereunder and in the Building and the real estate associated
therewith. Such transfers or assignments, howsoever made, are to be fully
respected and recognized by Tenant. Any such transfer shall operate to
release Landlord from liability under this Lease from and after the
effective date thereof, except as it may relate to the period prior to such
effective date. This Lease shall inure to the benefit of the Landlord and
its successors and assigns; and with the written consent of Landlord first
had, to the benefit of the heirs, executors and/or administrators,
successors and assigns of Tenant. Notwithstanding any of the foregoing to
the contrary, Tenant may assign its entire interest under this Lease or
sublet the Premises to a wholly owned corporation, partnership or other
legal entity or affiliate, subsidiary or parent of Tenant or to any
successor to Tenant by purchase, merger, consolidation or reorganization
(hereinafter, collectively, referred to as "Permitted Transfer") without
the consent of Landlord, provided: (i) Tenant is not in default under this
Lease; (ii) if such proposed transferee is a successor to Tenant by
purchase, merger, consolidation or reorganization, the continuing or
surviving entity shall own all or substantially all of the assets of Tenant
and shall have a net worth which is at least equal to the greater of
Tenant's net worth at the date of this Lease or Tenant's net worth at the
date of Transfer; (iii) such proposed transferee operates the business in
the Premises for
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the Permitted Use and no other purpose; and (iv) in no event shall any
Permitted Transfer release or relieve Tenant from any of its obligations
under this Lease. Tenant shall give Landlord written notice at least thirty
(30) days prior to the effective date of such Permitted Transfer. As used
herein: (a) "parent" shall mean a company which owns a majority of Tenant's
voting equity; (b) "subsidiary" shall mean an entity wholly owned by Tenant
or at least fifty-one percent (51%) of whose voting equity is owned by
Tenant; and (c) "affiliate" shall mean an entity controlled, controlling or
under common control with Tenant. Notwithstanding the foregoing, sale of
the shares of equity of any affiliate or subsidiary to which this Lease has
been assigned or transferred other than to another parent, subsidiary or
affiliate of the original Tenant named hereunder shall be deemed to be an
assignment requiring the consent of Landlord hereunder.
6. Possession. If for any reason the Premises shall not be ready for occupancy
by Tenant at the time of commencement of this Lease, this Lease shall not
be affected thereby and Tenant waives and releases all claims for damages
arising out of any such delay. No rent shall be payable for the period
during which the Premises shall not be ready for occupancy unless such
delay is caused by Tenant. By moving into the Premises or taking possession
thereof, Tenant is deemed to have accepted the Premises and agreed that the
Premises is in good order and satisfactory condition, with no
representation or warranty by Landlord as to the condition of the Premises
or the Building or the suitability thereof for Tenant's use. Tenant by said
act waives any and all defects therein. Notwithstanding the foregoing, if
there have been no delays caused by Tenant, and the Commencement Date does
not occur by June 30, 2000 (the "Outside Completion Date"), Tenant, as its
sole remedy, may terminate this Lease by giving Landlord written notice of
termination on or before the earlier to occur of: (i) five (5) business
days after the Outside Completion Date; and (ii) the Commencement Date. In
such event, this Lease shall be deemed null and void and of no further
force and effect and Landlord shall promptly refund any prepaid Rent and
Security Deposit previously advanced by Tenant under this Lease and, so
long as Tenant has not previously defaulted under any of its obligations
under this Lease, the parties hereto shall have no further responsibilities
or obligations to each other with respect to this Lease. Landlord and
Tenant acknowledge and agree that: (i) the determination of the
Commencement Date shall take into consideration the effect of any delays by
Tenant; and (ii) the Outside Completion Date shall be postponed by the
number of days the Commencement Date is delayed due to events of Force
Majeure. Notwithstanding anything herein to the contrary, if Landlord
determines that it will be unable to cause the Commencement Date to occur
by the Outside Completion Date, Landlord shall have the right to provide
Tenant with written notice (the "Outside Extension Notice") of such
inability, which Outside Extension Notice shall set forth the date on which
Landlord reasonably believes that the Commencement Date will occur. Upon
receipt of the Outside Extension Notice, Tenant shall have the right to
terminate this Lease by providing written notice of termination to Landlord
within five (5) business days after the date of the Outside Extension
Notice. In the event that Tenant does not terminate this Lease within such
five (5) business day period, the Outside Completion
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Date shall automatically be amended to be the date set forth in Landlord's
Outside Extension Notice.
7. Indemnity, Liability and Loss or Damage.
a. Except to the extent caused by the negligence or willful misconduct
of Landlord or any Landlord Related Parties (defined below). Tenant shall
indemnify, defend and hold Landlord, its trustees, members, principals,
beneficiaries, partners, officers, directors, employees, Mortgagee(s)
(defined in Section 27) and agents ("Landlord Related Parties") harmless
against and from all liabilities, obligations, damages, penalties, claims,
actions, costs, charges and expenses, including, without limitation,
reasonable attorneys' fees and other professional fees (if and to the
extent permitted by law), which may be imposed upon, incurred by or
asserted against Landlord or any of the Landlord Related Parties and
arising out of or in connection with any damage or injury occurring in the
Premises or any acts or omissions (including violations of law) of Tenant,
the Tenant Related Parties (defined below) or any of Tenant's transferees,
contractors or licensees.
b. Except to the extent caused by the negligence or willful misconduct of
Tenant or any Tenant Related Parties (defined below), Landlord shall
indemnify, defend and hold Tenant, its trustees, members, principals,
beneficiaries, partners, officers, directors, employees and agents ("Tenant
Related Parties") harmless against and from all liabilities, obligations,
damages, penalties, claims, actions, costs, charges and expenses,
including, without limitation, reasonable attorneys' fees and other
professional fees (if and to the extent permitted by law), which may be
imposed upon, incurred by or asserted against Tenant or any of the Tenant
Related Parties and arising out of or in connection with the acts or
omissions (including violations of law) of Landlord, the Landlord Related
Parties or any of Landlord's contractors.
c. Landlord and the Landlord Related Parties shall not be liable for, and
Tenant waives, all claims for loss or damage to Tenant's business or loss,
theft or damage to Tenant's Property or the property of any person claiming
by, through or under Tenant resulting from: (1) wind or weather; (2) the
failure of any sprinkler, heating or air-conditioning equipment, any
electric wiring or any gas, water or steam pipes; (3) the backing up of any
sewer pipe or downspout; (4) the bursting, leaking or running of any tank,
water closet, drain or other pipe; (5) water, snow or ice upon or coming
through the roof, skylight, stairs, doorways, windows, walks or any other
place upon or near the Building; (6) any act or omission of any party other
than Landlord or Landlord Related Parties; and (7) any causes not
reasonably within the control of Landlord. Tenant shall insure itself
against such loses under Section 9 below.
8. Legal Use. Tenant will not occupy or use, nor permit any portion of the
premises to be occupied or used for any purpose other than the permitted
Use specified in the Definitions and Basic Provisions portion of this
Lease, nor for any business or purpose
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which is unlawful in part or in whole or deemed to be disreputable or
hazardous in any manner. Tenant will conduct its business and control its
agents, employees, and invitees in such a manner so as not to create any
nuisance, interfere with, annoy, or disturb other tenants or Landlord in
the management of the Building. Tenant will maintain the Premises in a
clean and healthful condition and comply will all laws, ordinances, orders,
rules, and regulations (state, federal, municipal, and other entities
asserting jurisdiction over the Premises) with reference to the use of and
the occupancy of the Premises.
9. Insurance. During the term of this Lease and any extension thereof, Tenant
at its own cost and expense, shall maintain and provide Commercial General
Liability insurance coverage for the benefit and protection of Landlord and
Tenant, naming Tenant as an insured, and Landlord (or any successor),
Equity Officer Properties Trust, a Maryland real estate investment trust,
EOP Operating Limited Partnership, a Delaware limited partnership, and
their respective members, principals, beneficiaries, partners, officers,
directors, employees and agents, and other designees of Landlord as the
interest of such designees may appear, as additional insureds. Such
insurance shall be in an amount not less than $2,000,000.00 Combined Single
Limit per occurrence with an aggregate of $2,000,000.00. Tenant shall also
carry "all risk" physical loss insurance coverage for the full replacement
cost of all items of Tenant's personal property in, on or about the
Premises. All insurance provided hereunder shall be secured from
responsible companies acceptable to Landlord and qualified to do business
in the state where the Premises are located. Prior to the Commencement Date
of the Lease Term, Tenant shall furnish Landlord with certificates
evidencing such coverage and stating that such coverage may not be
materially changed or canceled by the insurer or Tenant without at least 30
days prior written notice to Landlord.
10. Waiver of Subrogation. The parties hereby intend that the risks of loss,
damage, and injury in connection with this Lease, Landlord's ownership and
operation of the Building, and Tenant's leasing and occupancy of the
Premises are to be allocated as far as possible to insurance. Therefore,
notwithstanding anything to the contrary herein, Landlord and Tenant each
hereby waive all claims, actions, and demands against each other, and each
hereby releases the other from all liability, to the maximum extent
permitted by law, for any loss, damage or injury to property of any kind or
nature, to the extent such loss, damage, or injury is compensated by
property insurance or required to be insured hereunder.
11. Alterations, Additions, Improvements. Tenant shall not make alterations in
or additions or improvements to the Premises without Landlord's prior
written consent, which consent shall not be unreasonably withheld. All such
work shall: (a) be at Tenant's expense; (b) comply with all insurance
requirements and with all applicable ordinances, regulations, and statutes
of the jurisdictions in which the Premises are located; (c) in Landlord's
judgment, be performed in a good and workmanlike manner, in accordance with
sound building practices; and (d) not interfere with other tenants' use of
their premises within the Building. All required working drawings and
specifications shall be
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prepared at Tenant's expense by an architect, space planner, or engineer
approved by Landlord. Tenant shall pay any increase in taxes resulting from
such improvements. Before undertaking any alterations or construction,
Tenant shall pay for and deliver to Landlord a public liability policy
insuring Landlord and Tenant against any liability which may arise on
account of such proposed alterations or construction work in a form and
amounts reasonably acceptable to Landlord. All such alterations, additions
or improvements installed by Tenant on the Premises shall be performed
using new or completely reconditioned materials and, except as otherwise
provided herein, shall remain the property of Landlord.
12. Landlord Rights. This Lease does not grant any rights to light or air over
or about the Building. Landlord shall have the right at any time to alter,
repair, or improve any portion of the Premises and the Building. Tenant
will permit Landlord, its respective officers, agents and representatives
to enter into and upon all parts of the Premises, at all reasonable hours,
to inspect, clean, repair, make alterations and additions as Landlord may
deem reasonably necessary, and for any other valid business reason.
Landlord and its representatives for any such purpose may enter on and
about the Premises or the Building with building materials, and erect
scaffolding and all other necessary structures. Tenant shall not be
entitled to any abatement or reduction of rent by reason thereof and Tenant
waives any claim for any damage or inconvenience which may thereby arise.
Notwithstanding the foregoing, except in emergency situations as determined
by Landlord, Landlord shall exercise reasonable efforts to perform any
entry into the Premises in a manner that is reasonably designed to minimize
interference with the operation of Tenant's business in the Premises.
13. Liens by Tenant. Tenant shall keep the Premises, the Building and the real
estate of which the Building forms a part free from any liens arising out
of any work performed by, materials furnished to, or obligations incurred
by Tenant In the event any such lien is imposed against the Premises or
Building and if Tenant does not cause the lien to be released within 10
days following the imposition of any such lien, Landlord may cause the same
to be released by such means as it shall deem proper. All sums paid by
Landlord and all expenses incurred by it in connection therewith shall
automatically create an obligation of Tenant to pay, on demand, an
equivalent amount times 150%. No work which Landlord permits Tenant to
perform shall be deemed to be for the immediate use and benefit of
Landlord, and no mechanic's or other lien shall be allowed against the
estate of Landlord by reason of its consent to such work.
14. Repairs and Re-entry; Surrender. Tenant will, at Tenant's own cost and
expense, keep the Premises in sound condition and good repair, and shall
repair or replace any damage or injury done to the Building or any part
thereof by Tenant or Tenant's employees, servants, agents, contractors or
invitees. If Tenant fails to make such repairs or replacements within 15
days of occurrence, Landlord may, at its option, make such repairs or
replacements, and Tenant shall repay all costs thereof, plus a 10%
administrative fee, to Landlord on demand. Tenant will not commit or allow
any waste or
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damage to be committed on any portion of the Premises. Tenant shall at
termination of this Lease, by lapse of time or otherwise, deliver up said
Premises to Landlord in as good condition as it was as of the date of
possession (ordinary wear and tear and damage by casualty and condemnation
for which Tenant is not required to make repairs hereunder excepted) and
Landlord shall have the right to re-enter and resume possession of the
Premises whether or not the Premises have been vacated by Tenant.
15. Signage. Tenant will not place, suffer to be placed, or maintain on any
exterior door, wall, or window of the Premises or the Building any sign,
awning, canopy, advertising matter, or any other thing of any kind without
first obtaining Landlord's written approval. If such approval is granted by
Landlord, Tenant shall maintain such item(s) in good condition at all
times. Landlord, at its sole cost, shall place Tenant's name in the lobby
directory. Tenant shall be entitled to building standard doorway and
directional signage at Tenant's sole cost.
16. Attorneys' Fees. If either party institutes a suit against the other for
violation of or to enforce any covenant or condition of this Lease, or if
either party intervenes in any suit in which the other is a party to
enforce or protect its interest or rights, the prevailing shall be entitled
to all of its costs and expenses, including, without limitation, reasonable
attorneys' fees.
17. Lien for Rent. INTENTIONALLY OMITTED.
18. Security Deposit. The Security Deposit shall be delivered to Landlord upon
the execution of this Lease by Tenant and shall be held by Landlord without
liability for interest (except as required by law) and as security for the
performance of Tenant's obligations under this Lease Upon the occurrence of
any default by Tenant, Landlord may, from time to time without prejudice to
any other remedy, use the Security Deposit to the extent necessary to make
good any arrearage of rent and any other damage, injury, expense, or
liability caused to Landlord by such default. Said Security Deposit shall
not be considered an advance payment of any rent or a measure of Landlord's
damage in case of default by Tenant. Following any such application of the
Security Deposit, Tenant shall pay to Landlord on demand the amount so
applied in order to restore the Security Deposit to its original amount.
Said Security Deposit shall be refunded to Tenant after the termination of
this Lease and after all obligations of Tenant under the Lease have been
fulfilled. If Landlord transfers its Interest in the Premises during the
Lease Term, Landlord may assign the Security Deposit to the transferee and
thereafter shall have no further liability for the return of such Security
Deposit. Landlord shall not be required to keep the Security Deposit
separate from its other accounts except as may be required by law.
19. Limitation of Landlord's Liability. NOTWITHSTANDING ANYTHING TO THE
CONTRARY CONTAINED IN THIS LEASE, THE LIABILITY OF LANDLORD (AND OF ANY
SUCCESSOR LANDLORD HEREUNDER) TO TENANT SHALL BE LIMITED TO THE INTEREST OF
LANDLORD IN THE BUILDING, AND TENANT
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AGREES TO LOOK SOLELY TO LANDLORD'S INTEREST IN THE BUILDING FOR THE
RECOVERY OF ANY JUDGMENT OR AWARD AGAINST THE LANDLORD, IT BEING INTENDED
THAT NEITHER LANDLORD NOR ANY MEMBER, PRINCIPAL, PARTNER, SHAREHOLDER,
OFFICER, DIRECTOR OR BENEFICIARY OF LANDLORD SHALL BE PERSONALLY LIABLE FOR
ANY JUDGMENT OR DEFICIENCY. "INTEREST OF LANDLORD IN THE BUILDING" SHALL
INCLUDE ANY ASSETS OF LANDLORD IN THE OPERATION OF THE BUILDING (PRIOR TO
THE DISTRIBUTION OF THE SAME TO ANY PARTNER OR SHAREHOLDER OF LANDLORD OR
ANY OTHER THIRD PARTY) SUCH AS ACCOUNTS RECEIVABLE, RENTS DUE FROM TENANTS,
INSURANCE PROCEEDS, FIXTURES, EQUIPMENT, SUPPLIES, CLAIMS OF ANY NATURE,
SORT OR DESCRIPTION AND ANY OTHER ITEMS DEEMED TO BE ASSETS IN CONNECTION
WITH THE OWNERSHIP, MAINTENANCE AND OPERATION OF THE BUILDING. TENANT
HEREBY COVENANTS THAT, PRIOR TO THE FILING OF ANY SUIT FOR AN ALLEGED
DEFAULT BY LANDLORD HEREUNDER, IT SHALL GIVE LANDLORD AND ALL MORTGAGEES
WHOM TENANT HAS BEEN NOTIFIED HOLD MORTGAGES OR DEED OF TRUST LIENS ON THE
PROPERTY, BUILDING OR PREMISES NOTICE AND REASONABLE TIME TO CURE SUCH
ALLEGED DEFAULT BY LANDLORD.
20. Notices. Any notice required or permitted to be given hereunder by one
party to the other shall be deemed to be given when personally delivered,
or mailed by registered or certified mail with return receipt requested, or
sent by a national overnight courier service to the respective party to
whom notice is intended to be given at the appropriate address provided in
Section 1. Any notice under this Lease delivered by registered or certified
mail shall be deemed to have been given, delivered and effective on the
earlier of (a) the third day following the day on which the same shall have
been mailed with sufficient postage prepaid or (b) the delivery date or
refusal date indicated on the return receipt Notice sent by overnight
courier service shall be deemed given, delivered and effective upon the
business day after such notice is delivered to or picked up by the
overnight courier service. Notice sent by personal delivery shall be deemed
given, delivered and effective upon the date actually delivered or refused.
21. Brokers. Tenant represents and warrants to Landlord that neither it, its
officers, agents, nor anyone on its behalf has dealt with any real estate
broker in the negotiation or making of this Lease. Tenant agrees to
indemnity and hold Landlord harmless from the claim or claims of any broker
or brokers claiming to have interested Tenant in the Building or Premises
or claiming to have caused Tenant to enter into this Lease.
22. Rules of the Building. Tenant, Tenant's agents, employees, and invitees
will comply fully with the rules and regulations of the Building either
attached hereto or delivered to Tenant by Landlord. Landlord shall at all
times have the right to change such rules and regulations in such
reasonable manner as may be deemed advisable for the safety, care,
cleanliness of the Building, its tenanted areas, and the preservation of
good order therein.
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All such changes will be forwarded to Tenant in writing
and shall be carried out and observed by Tenant Landlord shall make
reasonable efforts not to discriminate against Tenant in the enforcement of
all such rules and regulations.
23. Abandonment. If the Premises are abandoned or vacated by Tenant, Landlord
shall have the right, but not the obligation, to: (a) provide for the
storage of any personal property remaining in the Premises without
liability of any kind or nature for the cost of storage or the return of
the personal property to Tenant, and/or (b) take title to the abandoned
personal property, which title shall pass to Landlord under this Lease as a
Xxxx of Sale, without additional payments or credit from Landlord or
Tenant.
24. Holding Over. In the event of holding over by Tenant after expiration or
other termination of this Lease, occupancy of the Premises subsequent to
such termination or expiration shall be that of a tenancy at sufferance and
in no event for month-to-month or year-to-year, but Tenant shall,
throughout the entire holdover period, be subject to all the terms and
provisions of this Lease and shall pay for its use and occupancy an amount
(on a per month basis without reduction for any partial months during any
such holdover) equal to twice the sum of the Base Monthly Rent and
additional rent due for the period immediately preceding such holding over,
provided that in no event shall Base Monthly rent and additional rent
during the holdover period be less than the fair market rental for the
Premises. No holding over by Tenant or payments of money by Tenant to
Landlord after the expiration of the term of this Lease shall be construed
to extend the Lease Term or prevent Landlord from recovery of immediate
possession of the Premises by summary proceedings or otherwise. In addition
to the obligation to pay the amounts set forth above during any such
holdover period, Tenant also shall be liable to Landlord for all damage,
including any consequential damage, which Landlord may suffer by reason of
any holding over by Tenant, and Tenant shall indemnify Landlord against any
and all claims made by any other tenant or prospective tenant against
Landlord for delay by Landlord in delivering possession of the Premises to
such other tenant or prospective tenant.
25. Defaults and Remedies.
(a) The following events shall be deemed to be events of default
("Default") under this Lease:
(i) Tenant shall fail to pay when due any base monthly rent or other
amounts under this lease and such failure shall continue for 5
days after written notice from landlord (hereinafter sometimes
referred to as a "monetary default"). notwithstanding the
foregoing, tenant shall be entitled to a cure period of 10 days
with respect to the first monetary default in each calendar
year.
(ii) Any failure by Tenant (other than a Monetary Default) to comply
with any material term, provision or covenant of this Lease,
including, without limitation, the rules and regulations, which
failure is not cured within 30
11
days after delivery to Tenant of written notice of the
occurrence of such failure (or such longer period of time as may
be reasonably necessary to cure), provided that Tenant commences
to cure such default within 30 days after notice from Landlord
and, from time to time upon request of Landlord, furnishes
Landlord with evidence that demonstrates, in Landlord's
reasonable judgment, that Tenant is diligently pursuing a course
that will remedy such failure), provided that if any such
failure creates a hazardous condition, such failure must be
cured immediately. Notwithstanding the foregoing, if Tenant is
in default beyond any applicable notice and cure period with
respect to any particular material provision or covenant of this
Lease, including, without limitation, Tenant's obligation to pay
Rent when due, on 3 occasions during any 12 month period, any
subsequent violation of such provision or covenant shall be
considered to be an incurable default by Tenant.
(iii) Tenant or any Guarantor, if any, shall become insolvent, or
shall make a transfer in fraud of creditors, or shall make an
assignment for the benefit of creditors, or Tenant or any
Guarantor shall admit in writing its inability to pay its debts
as they become due.
(iv) The leasehold estate hereunder shall be taken on execution or
other process of law or equity in any action against Tenant.
(v) In the case of any ground floor or retail Tenant, Tenant does
not take possession of, or abandons or vacates, all or any
portion of the Premises.
(vi) Tenant is in default beyond any notice and cure period under any
other lease with Landlord in the Building.
(b) Upon the occurrence of any event or events of Default under this
Lease, whether enumerated in Section 25(a) or not, Landlord shall have
the option to pursue any one or more of the following remedies without
any notice (except as expressly prescribed herein or required by law):
(i) Terminate this Lease and Tenant's right to possession of the
Premises and recover from Tenant an award of damages equal to
the sum of the following:
(a) The Worth at the Time of Award of the unpaid Rent which had
been earned at the time of termination;
(b) The Worth at the rime of Award of the amount by which the
unpaid Rent which would have been earned after termination
until the time of award exceeds the amount of such Rent
loss that Tenant affirmatively proves could have been
reasonably avoided;
12
(c) The Worth at the Time of Award of the amount by which the
unpaid Rent for the balance of the Lease Term after the
time of award exceeds the amount of such Rent loss that
Tenant affirmatively proves could be reasonably avoided;
(d) Any other amount necessary to compensate Landlord for all
the detriment either proximately caused by Tenant's failure
to perform Tenant's obligations under this Lease or which
in the ordinary course of things would be likely to result
therefrom; and
(e) All such other amounts in addition to or in lieu of the
foregoing as may be permitted from time to time under
applicable law.
The "Worth at the Time of Award" of the amounts referred to
in parts (b)(i)(a) and (b)(i)(b) above, shall be computed
by allowing interest at the rate equal to the lesser of (i)
10% per annum, or (ii) the maximum rate permitted by law,
and the "Worth at the Time of Award" of the amount referred
to in part (b)(i)(c), above, shall be computed by
discounting such amount at the discount rate of the Federal
Reserve Bank of San Francisco at the time of award plus one
percent;
(ii) Employ the remedy described in California Civil Code (S) 1951.4
(Landlord may continue this Lease in affect after Tenant's breach
and abandonment and recover Rent as it becomes due, if Tenant has
the right to sublet or assign, subject only to reasonable
limitations); or
(iii)Notwithstanding Landlord's exercise of the remedy described in
California Civil Code (S) 1951.4 in respect of an event or events
of default, at such time thereafter as Landlord may elect in
writing, to terminate this Lease and Tenant's right to possession
of the Premises and recover an award of damages as provided above
in Section 25(b)(i).
(c) The subsequent acceptance of Rent hereunder by Landlord shall not be
deemed to be a waiver of any preceding breach by Tenant of any term,
covenant or condition of this Lease, other than the failure of Tenant
to pay the particular Rent so accepted, regardless of Landlord's
knowledge of such preceding breach at the time of acceptance of such
Rent. No waiver by Landlord of any breach hereof shall be effective
unless such waiver is in writing and signed by Landlord.
(d) TENANT HEREBY WAIVES ANY AND ALL RIGHTS CONFERRED BY SECTION 3275 OF
THE CIVIL CODE OF CALIFORNIA AND BY SECTIONS 1174(C) AND 1179 OF THE
CODE OF CIVIL PROCEDURE OF CALIFORNIA AND ANY AND ALL OTHER LAWS AND
RULES OF LAW FROM TIME TO TIME IN EFFECT DURING THE LEASE TERM
13
PROVIDING THAT TENANT SHALL HAVE ANY RIGHT TO REDEEM, REINSTATE OR
RESTORE THIS LEASE FOLLOWING ITS TERMINATION BY REASON OF TENANT'S
BREACH. TENANT AND LANDLORD ALSO HEREBY WAIVE. TO THE FULLEST EXTENT
PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY IN ANY LITIGATION ARISING
OUT OF OR RELATING TO THIS LEASE.
(e) No right or remedy herein conferred upon or reserved to Landlord is
intended to be exclusive of any other right or remedy, and each and
every right and remedy shall be cumulative and in addition to any
other right or remedy given hereunder or now or hereafter existing by
agreement, applicable law or in equity. In addition to other remedies
provided in this Lease, Landlord shall be entitled, to the extent
permitted by applicable law, to injunctive relief, or to a decree
compelling performance of any of the covenants, agreements, conditions
or provisions of this Lease, or to any other remedy allowed to
Landlord at law or in equity. Forbearance by Landlord to enforce one
or more of the remedies herein provided upon an event of default shall
not be deemed or construed to constitute a waiver of such default.
(f) This Section 25 shall be enforceable to the maximum extent such
enforcement is not prohibited by applicable law, and the
unenforceability of any portion thereof shall not thereby render
unenforceable any other portion.
26. No Waiver. No act or thing done by Landlord or its agents during the term
hereof shall be deemed an acceptance of a surrender of the Premises. The
acceptance of Rent by Landlord with knowledge of the breath of any covenant
contained in this Lease and/or the failure of Landlord to enforce any of
the rules and regulations against Tenant (or any other tenant) shall not be
deemed a waiver. Any agreement to accept a surrender of the Premises or
accept a waiver of said covenants, rules and regulations by Landlord shall
not be valid unless made in writing and signed by Landlord. The mention in
this Lease or the pursuit of any particular remedy shall not preclude
Landlord from any other remedy Landlord might have, either in law or in
equity.
27. Subordination to Mortgages; Estoppel Certificate. Tenant accepts this Lease
subject and subordinate to any mortgage, deed of trust, ground lease or
other lien presently existing or hereafter arising upon the Premises or
upon the Building and to any renewals, modifications, refinancings and
extensions thereof (any such mortgage, deed of trust, lease or other lien
being hereinafter referred to as a "Mortgage", and the person or entity
having the benefit of same being referred to hereinafter as a "Mortgagee"),
but Tenant agrees that any such Mortgagee shall have the right at any time
to subordinate such Mortgage to this Lease on such terms and subject to
such conditions as such Mortgagee may deem appropriate in its discretion.
This clause shall be self-operative and no further instrument of
subordination shall be required. However, Landlord is hereby irrevocably
vested with full power and authority to subordinate this Lease to any
Mortgage, and
14
Tenant agrees upon demand to execute such further instruments subordinating
this Lease, acknowledging the subordination of this Lease or attorning to
the holder of any such Mortgage as Landlord may request. The terms of this
Lease are subject to approval by the Landlord's existing lender(s) and any
lender(s) who, at the time of the execution of this Lease, have committed
or are considering committing to Landlord to make a loan secured by all or
any portion of the Building or the underlying real estate and such approval
is a condition precedent to Landlord's obligations hereunder. If any person
shall succeed to all or part of Landlord's interest in the Premises,
whether by purchase, foreclosure, deed in lieu of foreclosure, power of
sale, termination of lease or otherwise, then if and as so requested or
required by such successor-in-interest, Tenant shall, without charge,
attorn to such successor-in-interest. Tenant agrees that it will from time
to time upon request by Landlord and, within 10 days of the date of such
request, execute and deliver to such persons as Landlord shall request an
estoppel certificate or other similar statement in recordable form
certifying that this Lease is unmodified and in full force and effect (or
if there have been modifications, that the same is in full force and effect
as so modified), stating the dates to which Rent and other charges payable
under this Lease have been paid, stating that Landlord is not in default
hereunder (or if Tenant alleges a default, stating the nature of such
alleged default) and further stating such other matters as Landlord shall
reasonably require. Notwithstanding the foregoing, upon written request by
Tenant, Landlord will use reasonable efforts to obtain a non-disturbance,
subordination and attornment agreement from Landlord's then current
Mortgagee on such Mortgagee's then current standard form of agreement.
"Reasonable efforts" of Landlord shall not require Landlord to incur any
cost, expense or liability to obtain such agreement, it being agreed that
Tenant shall be responsible for any fee or review costs charged by the
Mortgagee. Upon request of Landlord, Tenant will execute Mortgagee's form
of non-disturbance, subordination and attornment agreement and return the
same to Landlord for execution by the Mortgagee. Landlord's failure to
obtain a non-disturbance, subordination and attornment agreement for Tenant
shall have no effect on the rights, obligations and liabilities of Landlord
and Tenant or be considered to be a default by Landlord hereunder.
28. Casualty Damage.
A. If all or any part of the Premises is damaged by fire or other
casualty, Tenant shall immediately notify Landlord in writing. During
any period of time that all or a material portion of the Premises is
rendered untenantable as a result of a fire or other casualty, the
Rent shall xxxxx for the portion of the Premises that is untenantable
and not used by Tenant. Landlord shall have the right to terminate
this Lease if: (1) the Building shall be damaged so that, in
Landlord's reasonable judgment, substantial alteration or
reconstruction of the Building shall be required (whether or not the
Premises has been damaged); (2) Landlord is not permitted by Law to
rebuild the Building in substantially the same form as existed before
the fire or casualty; (3) the Premises have been materially damaged
and there is less than 2 years of the Term remaining on the date of
the casualty; (4) any Mortgagee
15
requires that the insurance proceeds be applied to the payment of the
mortgage debt; or (5) a material uninsured loss to the Building
occurs. Landlord may exercise its right to terminate this Lease by
notifying Tenant In writing within 90 days after the date of the
casualty. If Landlord does not terminate this Lease, Landlord shall
commence and proceed with reasonable diligence to repair and restore
the Building and the leasehold improvements (excluding any
alterations that were performed by Tenant in violation of this
Lease). However, in no event shall Landlord be required to spend more
than the insurance proceeds received by Landlord. Landlord shall not
be liable for any loss or damage to Tenant's personal property or to
the business of Tenant resulting in any way from the fire or other
casualty or from the repair and restoration of the damage. Landlord
and Tenant hereby waive the provisions of any law relating to the
matters addressed in this Section, and agree that their respective
rights for damage to or destruction of the Premises shall be those
specifically provided in this Lease.
B. If all or any portion of the Premises shall be made untenantable by
fire or other casualty, Landlord shall, with reasonable promptness,
cause an architect or general contractor selected by Landlord to
provide Landlord and Tenant with a written estimate of the amount of
time required to substantially complete the repair and restoration of
the Premises and make the Premises tenantable again, using standard
working methods ("Completion Estimate"). If the Completion Estimate
indicates that the Premises cannot be made tenantable within 270 days
from the date the repair and restoration is started, then regardless
of anything in Section 28.A above to the contrary, either party shall
have the right to terminate this Lease by giving written notice to
the other of such election within 10 days after receipt of the
Completion Estimate. Tenant, however, shall not have the right to
terminate this Lease if the fire or casualty was caused by the
negligence or intentional misconduct of Tenant, Tenant Related
Parties or any of Tenant's transferees, contractors or licensees.
16
29. Condemnation.
Either party may terminate this Lease if the whole or any material part of
the Premises shall be taken or condemned for any public or quasi-public use
under law, by eminent domain or private purchase in lieu thereof (a
"Taking"). Landlord shall also have the right to terminate this Lease if
there is a Taking of any portion of the Building or Property which would
leave the remainder of the Building unsuitable for use as an office
building in a manner comparable to the Building's use prior to the Taking.
In order to exercise its right to terminate the Lease, Landlord or Tenant,
as the case may be, must provide written notice of termination to the other
within 45 days after the terminating party first receives notice of the
Taking. Any such termination shall be effective as of the date the physical
taking of the Premises or the portion of the Building or Property occurs.
If this Lease is not terminated, the rentable square footage of the
Building, and the rentable square footage of the Premises shall, if
applicable, be appropriately adjusted. In addition, Rent for any portion of
the Premises taken or condemned shall be abated during the unexpired Term
of this Lease effective when the physical taking of the portion of the
Premises occurs. All compensation awarded for a Taking, or sale proceeds,
shall be the property of Landlord, any right to receive compensation or
proceeds being expressly waived by Tenant. However, Tenant may file a
separate claim at its sole cost and expense for Tenant's Property and
Tenant's reasonable relocation expenses, provided the filing of the claim
does not diminish the award which would otherwise be receivable by
Landlord.
30. Miscellaneous.
(a) any term or provision of this Lease shall, to any extent, be invalid
or unenforceable, the remainder of this Lease shall not be affected
thereby, and each term and provision of this Lease shall be valid and
enforced to the fullest extent permitted by law.
(b) Tenant agrees not to record this Lease or any memorandum hereof.
(c) This Lease and the rights and obligations of the parties hereto shall
be Interpreted, construed, and enforced in accordance with the laws of
the state in which the Building is located.
(d) If there is more than one Tenant, or if the Tenant is comprised of
more than one person or entity, the obligations hereunder imposed upon
Tenant shall be joint and several obligations of all such parties. All
notices, payments, and agreements given or made by, with or to any one
of such persons or entities shall be deemed to have been given or made
by, with or to all of them.
(e) In the event Tenant is a corporation (including any form of
professional association), partnership (general or limited), or other
form of organization other than an individual (each such entity is
individually referred to herein as an
17
"Organizational Entity"), then Tenant hereby convenants, warrants and
represents: (1) that the individual executing or attesting this Lease
on behalf of Tenant is duly authorized to execute or attest and
deliver this Lease on behalf of Tenant in accordance with the
organizational documents of Tenant; (2) that this Lease is binding
upon Tenant; and (3) that Tenant is duly organized and legally
existing in the state of its organization, and is qualified to do
business in the state in which the Premises is located.
(f) Except as expressly otherwise herein provided, with respect to all
required acts of Tenant, time is of the essence of this Lease. This
Lease shall create the relationship of Landlord and Tenant between the
parties hereto. In the event the Building is located in the state of
Georgia, no estate shall pass out of Landlord and Tenant shall have
only a usufruct, not subject to purchase or sale, which may not be
assigned by Tenant except as expressly provided in this Lease.
(g) Notwithstanding anything to the contrary contained in this Lease, the
expiration of the Lease Term, whether by lapse of time or otherwise,
shall not relieve Tenant from Tenant's obligations accruing prior to
the expiration of the Lease Term, and such obligations shall survive
any such expiration or other termination of the Lease Term.
(h) The headings and titles to the paragraphs of this Lease are for
convenience only and shall have no effect upon the construction or
interpretation of any part hereof.
(i) Landlord has delivered a copy of this lease to Tenant for Tenant's
review only, and the delivery hereof does not constitute an Offer to
Tenant or option. This lease shall not be effective until an original
of this Lease executed by both Landlord and Tenant and an original
Guaranty, if any, executed by each Guarantor is delivered to and
accepted by Landlord, and this Lease has been approved by Landlord's
Mortgagees, if required.
31. Entire Agreement. This Lease Agreement, including the following
Exhibits:
Exhibit A - Outline and Location of Premises
---------
Exhibit B - Addendum
---------
Exhibit C - Agreement of Subordination Non Disturber and Attornment
---------
Exhibit D - Building Rules and Regulations
---------
constitutes the entire agreement between the parties hereto with respect to
the subject matter of this Lease and supersedes all prior agreements and
understandings between the parties related to the Premises, including all
lease proposals, letters of intent and similar documents. TENANT EXPRESSLY
ACKNOWLEDGES AND AGREES THAT LANDLORD HAS NOT MADE AND IS NOT MAKING, AND
TENANT, IN EXECUTING AND DELIVERING THIS LEASE, IS NOT RELYING UPON, ANY
WARRANTIES, REPRESENTATIONS, PROMISES OR STATEMENTS, EXCEPT TO
18
THE EXTENT THAT THE SAME ARE EXPRESSLY SET FORTH IN THIS LEASE. ALL
UNDERSTANDINGS AND AGREEMENTS HERETOFORE MADE BETWEEN THE PARTIES ARE
MERGED IN THIS LEASE WHICH ALONE FULLY AND COMPLETELY EXPRESSES THE
AGREEMENT OF THE PARTIES, NEITHER PARTY RELYING UPON ANY STATEMENT OR
REPRESENTATION NOT EMBODIED IN THIS LEASE. THIS LEASE MAY BE MODIFIED ONLY
BY A WRITTEN AGREEMENT SIGNED BY LANDLORD AND TENANT. LANDLORD AND TENANT
EXPRESSLY AGREE THAT THERE ARE AND SHALL BE NO IMPLIED WARRANTIES OF
MERCHANTABILITY, HABITABILITY, SUITABILITY, FITNESS FOR A PARTICULAR
PURPOSE OR OF ANY OTHER KIND ARISING OUT OF THIS LEASE, ALL OF WHICH ARE
HEREBY WAIVED BY TENANT, AND THAT THERE ARE NO WARRANTIES WHICH EXTEND
BEYOND THOSE EXPRESSLY SET FORTH IN THIS LEASE.
19
IN WITNESS WHEREOF, the parties have caused this Lease to be executed as of
the day and year first above written.
LANDLORD:
EOP-ONE MARKET, LLC., A Delaware limited
liability company
By: EOP Operating Limited Partnership, a
Delaware limited partnership, its sole
member
By: Equity Office Properties Trust, a
Maryland real estate investment trust,
its managing general partner
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxxx
--------------------------------------
Title: Vice President
-------------------------------------
TENANT:
INTERN CAPITAL GROUP, INC., a Delaware
corporation
By: /s/ Xxxxxxx X. Xxx
----------------------------------------
Name: Xxxxxxx X. Xxx
--------------------------------------
Title: Managing Director
-------------------------------------
By: /s/ Xxxxx Lighter
----------------------------------------
Name: Xxxxx Lighter
--------------------------------------
Title: Asst. Secretary
-------------------------------------
20
EXHIBIT A
OUTLINE AND LOCATION OF PREMISES
--------------------------------
This Exhibit is attached to and made a part of the Agreement dated as of
the 21st day of April 2000, by and between EOP-ONE MARKET, LLC., a Delaware
---- -----
limited liability company ("Landlord") and INTERNET CAPITAL GROUP, INC., a
Delaware corporation ("Tenant") for space in the Building located at One
Market, San Francisco, California.
[Diagram intentionally omitted.]
A-1
EXHIBIT B
ADDENDUM
--------
This Addendum is attached to and made a part of the Lease dated as of the
21st day ofApril , 2000 by and between EOP-ONE MARKET, LLC., A Delaware limited
liability company ("Landlord") and INTERNET CAPITAL GROUP, INC., A Delaware
corporation ("Tenant") for space in the Spear Tower in the Building located at
One Market, San Francisco, California.
WITNESSETH:
WHEREAS, simultaneously with the execution of this Addendum Landlord and
Tenant have entered into that certain lease of even date herewith (the "Lease")
for approximately 20,979 rentable square feet on the 3rd floor of the Spear
Tower, in the building located at One Market, San Francisco, California (the
"Building"), all as more particularly described in the Lease; and
WHEREAS, Landlord and Tenant desire to modify certain terms and conditions
of the Lease as set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants set forth herein
and other good and valuable consideration, the sufficiency and receipt of which
is acknowledged, Landlord and Tenant agree as follows:
1. Hazardous Materials. Tenant shall not (either with or without
-------------------
negligence) cause or permit the escape, disposal or release of any
biologically or chemically active or other hazardous substances, or
materials. Tenant shall not allow the storage or use of such substances or
materials in any manner not sanctioned by law or by the highest standards
prevailing in the industry for the storage and use of such substances of
materials, nor allow to be brought into the Project any such materials or
substances except to use for general office purposes in the ordinary course
of Tenant's business, and then only after written notice is given to
Landlord of the identity of such substances or materials. Without
limitation, hazardous substances and materials shall include those
described in the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, 42 U.S.C. Section 9601 et seq., any
applicable state or local laws and the regulations adopted under these
acts. If any governmental agency or lender (in its reasonable judgment)
shall ever require testing to ascertain whether or not there has been any
release of hazardous materials, then the reasonable costs thereof shall be
reimbursed by Tenant to Landlord upon demand as additional charges if such
requirement applies to the Premises. In addition, Tenant shall execute
affidavits, representations and the like from time to time at Landlord's
request concerning Tenant's best knowledge and belief regarding the
presence of hazardous substances or materials on the Premises. In all
events, Tenant shall indemnify Landlord in the manner elsewhere provided in
this Lease from any release of hazardous materials on the Premises
occurring while Tenant is in possession, or elsewhere if caused by Tenant
or persons acting under Tenant. The within covenants shall survive the
expiration or earlier termination of the Term.
B-2
2. Security Deposit. Notwithstanding anything in the Lease to the contrary,
----------------
no purchaser of Landlord's interest in the Building or holder of any
mortgage, deed of trust, ground lease or other lien on the Building shall
be liable for the return of any Security Deposit unless and until such
Security Deposit is actually transferred by Landlord to such party.
3. Net Income/Profits. Notwithstanding anything contained to the contrary
------------------
in the provisions of the Lease relating to an assignment or subletting by
Tenant, neither Tenant nor any other person having an interest in the
possession, use, occupancy or utilization of the Premises shall enter into
any lease, sublease, license, concession or other agreement for use,
occupancy or utilization of space in the Premises which provides for rental
or other payment for such use, occupancy or utilization based, in whole or
in part, on the net income or profits derived by any person from the
portion of the Premises leased, used, occupied, or utilized (other than an
amount based on a fixed percentage or percentages of receipts or sales),
and any such purported lease, sublease, license, concession or other
agreement shall be absolutely void and ineffective as a conveyance of any
right or interest in the possession, use occupancy or utilization of any
part of the Premises.
4. Casualty/Condemnation. Notwithstanding anything contained to the
---------------------
contrary in the Lease, the Premises or portion thereof shall not be
considered to be untenantable or unusable by Tenant unless and until Tenant
actually ceases to use the Premises or applicable portion thereof. in
addition, the rights of Tenant, if any, to any condemnation proceeds and or
insurance proceeds shall be subject and subordinate the rights of any party
holding a first mortgage or first deed of trust on the Building. The
foregoing, however, shall not be construed as to limit Tenant's right to
receive the proceeds of any insurance policies maintained by Tenant at its
sole cost and expense.
5. Limitation of Liability. In addition to any limitation of Landlord's
-----------------------
liability contained in the lease, tenant hereby agrees that any claim for
damages against landlord shall be subject and subordinate to the interest
of any mortgage in the building and project.
6. Estoppel Certificates. In addition to the obligations of Tenant under the
Lease, Tenant agrees that it will from time to time upon request of
Landlord, within 5 days after the date of such request, execute and deliver
to such persons as landlord shall request an estoppel certificate or other
similar statement in recordable from certifying that: (i) the Tenant is
presently solvent and free from reorganization and/or bankruptcy and is in
occupancy, open, and conducting business in the Premises, (ii) the
operation and use of the Premises do not involve the generation, treatment,
storage, etc. of hazardous substance etc., (iii) the rent is $___ per year,
(iv) the Lease represents the entire agreement between the parties (v) the
expiration date is ___ , (vi) all conditions to be performed by the
Landlord have been satisfied, (vii) all required contributions by Landlord
to Tenant to Tenant on account of Tenant improvements have been received,
(vii) no rental has been paid more than one month in advance and no
security has been deposited with Landlord except for ___ and, (ix) the
rentable square footage of the Premises is ___ square feet.
7. Subordination to Mortgages. Notwithstanding anything in the Lease to the
--------------------------
contrary, the prior written consent of the holder of any first mortgage or
first deed of trust on the
B-2
Building shall be required as a condition precedent to the subordination of
the Lease to any junior/secondary mortgage or deed of trust. In no event
shall the holder of any first mortgage or first deed of trust be liable for
any of Landlord's obligations under the Lease arising prior to the date
such mortgagee or trustee takes title to the Building.
8. Conflict. In the event of a conflict between the terms of this Addendum
--------
and the terms of the Lease or any exhibits thereto, the terms of this
Addendum shall control.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Addendum
on the day and year first above written.
LANDLORD:
EOP-ONE MARKET, LLC., a Delaware Limited
liability company
By: EOP Operating Limited Partnership, a
Delaware limited partnership, its sole
member
By: Equity Office Properties Trust, a
Maryland real estate investment trust,
its managing general partner
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxxx
-----------------------------------
Title: Vice President
----------------------------------
TENANT:
INTERNET CAPITAL GROUP INC., a Delaware
Corporation
By: /s/ Xxxxxxx X. Xxx
---------------------------------------------
Name: Xxxxxxx Xxx
-------------------------------------------
Title: Managing Director
------------------------------------------
By: /s/ Xxxxx Xxxxxxxx
---------------------------------------------
Name: Xxxxx Xxxxxxxx
-------------------------------------------
Title: Asst. Secretary
------------------------------------------
EXHIBIT C
AGREEMENT OF SUBORDINATION, NON-DISTURBER AND ATTORNMENT
--------------------------------------------------------
B-3
THIS AGREEMENT made the ____ day of ____ ,2000, by and among EOP-ONE
MARKET, LLC., a Delaware limited liability company (hereinafter called "Ground
Lessor"), INTERNET CAPITAL GROUP, INC., a Delaware corporation (hereinafter
called "Tenant") and TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA, a
New York Corporation, having its principal office and post office address at 000
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (hereinafter called "Teachers");
WITNESSETH:
WHEREAS, Ground Lessor is the owner in fee simple of those certain premises
situate, lying and being in the City of San Francisco, County of San Francisco,
State of California, as more particularly described in Exhibit A attached
hereto; and
WHEREAS, under the terms of a certain lease dated April 16, 1973,
(hereinafter called "Ground Lease"), a short form of which has been recorded on
April 24, 1973, Book B755 at Page 597, Series No. V71530 and an Assignment and
Assumption of Tenant's Interest in Lease recorded November 22, 1994, Book G263,
Page 204, Series No. 94-F716286-0O, Official Records, San Francisco County,
State of California, amended by First Amendment to Lease Agreement recorded
October 3, 1995 in Reel G479, Image 280. Ground Lessor did lease, let and demise
the Demised Premises to EOP-ONE MARKET, LLC., a Delaware limited liability
company (hereinafter called "Landlord") for a term of 99 years commencing April
16, 1973, and continuing to and including April 15, 2072, upon the terms and
conditions therein more particularly set forth;
WHEREAS, Teachers is the owner and holder of a certain promissory note
dated September 29, 1995, secured by a Deed of Trust and Assignment of Rents and
Fixture Filing Statement of even date therewith, recorded on October 3, 1995, as
Document F866003, in the Official Records aforesaid, constituting a first lien
upon the fee simple estate in the Demised Premises as well as upon the leasehold
estate created by said Ground Lease;
WHEREAS, under the terms of a certain lease and amendments, if any
described in that certain Lease by and between EOP-ONE MARKET, LLC., a Delaware
limited liability company and Tenant dated , 2000 (hereinafter called
"Sublease"), Landlord did lease, let and demise, subject to said Ground Lease, a
portion of the Demised Premises as therein more particularly described;
WHEREAS, the parties hereto desire to establish additional rights of quiet
and peaceful possession for the benefit of Tenant under said Sublease and
further to define the terms, covenants and conditions precedent for such
additional rights.
NOW, THEREFORE, in consideration of the respective demises and of the sum
of One Dollar ($1.00) and other good and valuable consideration, each to the
other in hand paid, it is hereby mutually covenanted and agreed as follows:
That Ground Lessor does hereby represent, covenant and warrant:
(a) That said Ground Lease is in full force and effect and unmodified.
C-2
(b) That there is no existing default under the provisions of said Ground
Lease or in the performance of any of the terms, covenants, conditions
or warranties thereof on the part of either Ground Lessor or Landlord
to be observed and performed thereunder.
That Ground Lessor consents to and approves the within Sublease.
That in the event of the cancellation or termination of said Ground Lease
or of the surrender thereof, whether voluntary, Involuntary or by operation of
law, prior to the expiration date of said Sublease, including any extensions and
renewals of said Sublease now provided thereunder, and subject to the observance
and performance by Tenant of all of the terms, covenants and conditions of said
Sublease on the part of Tenant to be observed and performed, Ground Lessor does
hereby covenant and warrant as follows:
(c) The quiet and peaceful possession of Tenant under said Sublease;
(d) That the Sublease shall continue in full force and effect and Ground
Lessor shall recognize the Sublease and the Tenant's rights thereunder
and will thereby establish direct privity of estate and contract as
between Ground Lessor and Tenant, with the same force and effect and
with the same relative priority in time and right as though the
Sublease were originally made directly from Ground Lessor in favor of
Tenant, but not in respect of any amendment to such Sublease not
previously approved in writing by Ground Lessor;
(e) To assume such of the obligations on the part of the Landlord under
the Sublease which are deemed to run with the land for so long as
Ground Lessor shall be the owner in fee of said Demised Premises;
provided, however, Ground Lessor shall not in any way or to any extent be liable
to Tenant; unless Landlord and Ground Lessor are the same entity:
(1) For any past act or default on the part of the original or any
prior landlord under said Sublease and Tenant shall have no right
to assert same or any damages arising therefrom as an offset or
defense against Ground Lessor;
(2) For the commencement or completion of any construction or any
contribution toward construction or installation of any
improvements upon the demised premises required under said
Sublease, or any expansion or rehabilitation of existing
improvements thereon, or for restoration of improvements
following any casualty not required to be insured under such
Sublease or for the costs of any restoration in excess of the
proceeds recovered under any insurance required to be carried
under such Sublease;
(3) For any prepayment of rent or deposit, rental security or any
other sums deposited with the original or any prior landlord
under such Sublease and not delivered to Ground Lessor; or
(4) For any restriction on competition beyond the Demised Premises.
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That in the event of the cancellation or termination of said Ground Lease
or of the surrender thereof, whether voluntary, involuntary or by operation of
law, prior to the expiration date of said Sublease, including any extensions and
renewals of said Sublease now provided thereunder, Tenant hereby covenants and
agrees to make full and complete attornment to Ground Lessor, for the balance of
the term of the Sublease, including any extensions and renewals thereof, now
provided thereunder, upon the same terms, covenants and conditions as therein
provided, so as to establish direct privity of estate and contract as between
Ground Lessor and Tenant and with the same force and effect and relative
priority in time and right as though the Sublease were originally made directly
from Ground Lessor to Tenant, and Tenant will thereafter make all rent payments
directly to Ground Lessor, and
That Teachers and Tenant do hereby covenant and agree that said Mortgage or
Deed of Trust shall be and the same is hereby made SUBORDINATE to said Sublease
and to the recognition and attornment agreements provided for in the third and
fourth grammatical paragraphs hereof with the same force and effect as if said
Sublease had been executed, delivered and recorded and said recognition and
attornment agreements aforesaid had been effected in each case prior to the
execution, delivery and recording of said Mortgage or Deed of Trust
EXCEPT, HOWEVER, that this Subordination shall not affect nor be applicable
to and does hereby expressly exclude:
(a) The prior right and claim under and the prior lien of said Mortgage or
Deed of Trust in, to and upon any award or other compensation
heretofore or hereafter to be made for any taking by eminent domain of
any part of the Demised Premises, and as to the right of disposition
thereof in accordance with the provisions of said Mortgage or Deed of
Trust,
(b) The prior right and claim under and the prior lien of said Mortgage or
Deed of Trust, in, to and upon any proceeds payable under all policies
of fire and rent insurance upon the Demised Premises and as to the
right of disposition thereof in accordance with the terms of said
Mortgage or Deed of Trust, and
(c) Any lien, right, power or interest, if any, which may have arisen or
intervened in the period between the recording of said Mortgage or Deed
of Trust and the execution of said Sublease or the effective date of
the recognition and attornment agreements aforesaid, whichever is
later, and any lien or judgment which may arise at any time under the
terms of said Sublease.
Tenant shall not subordinate the Sublease to any other mortgage or deed of
trust so long as the Mortgage or Deed of Trust now held or to be held by
Teachers remains in effect.
Ground Lessor and Landlord agree that the Ground Lease shall not be
modified, amended, canceled, terminated or surrendered without the express prior
written consent of Teachers.
This Subordination may not be modified except by an agreement in writing
signed by the parties hereto.
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That the terms, covenants and conditions hereof shall inure to the benefit
of and be binding upon the respective parties hereto, their respective heirs,
executors, administrators, successors and assigns.
IN WITNESS WHEREOF, the parties hereto have caused this writing to be
signed, sealed and delivered in their respective names and behalf, and, if a
corporation, by its officers duly authorized, on the day and year first above
written.
GROUND LESSOR:
EOP-ONE MARKET, LLC., a Delaware limited liability
Company
By: EOP Operating Limited Partnership, a Delaware
limited partnership, its sole member
By: Equity Office Properties Trust, a
Maryland real estate investment trust,
its managing general partner.
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
C-5
LANDLORD:
EOP-ONE MARKET, LLC., a Delaware limited liability
Company
By: EOP Operating Limited Partnership, a Delaware
limited partnership, its sole member
By: Equity Office Properties Trust, a
Maryland real estate investment trust,
its managing general partner
By:
-------------------------------------
Name:
-----------------------------------
Tide:
-----------------------------------
TENANT:
INTERNET CAPITAL GROUP, INC., a Delaware
Corporation
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
LENDER:
TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF
AMERICA
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
C-6
NOTARY ACKNOWLEDGMENT
(Ground Lessor)
State of _________________)
County of ___________________)
On ___________________________ before me, ____________________________________
personally appeared ____________________________________________________________
of Equity Office Properties Trust, a Maryland real estate investment trust,
---------------------------------------------------------------------------
the managing general partner, of EOP Operating Limited Partnership, a Delaware
------------------------------------------------------------------------------
limited partnership, the sole member, of EOP-ONE MARKET, LLC., a Delaware
-------------------------------------------------------------------------
limited liability company
-------------------------
personally known to me - OR - proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and
acknowledged to me that he/she/they executed the
same in his/her/their authorized capacity(ies),
and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the
instrument
WITNESS my hand and official seal.
__________________________________
Notary Public
My Commission Expires:
___________________________________
________________________________________________________________________________
OPTIONAL SECTION
CAPACITY CLAIMED BY SIGNER
Though statute does not require the Notary to fill in the data below, doing so
may prove invaluable to persons relying on the document.
(check one)
INDIVIDUAL
---
XXX CORPORATE OFFICER
---
TITLE:
--------------------
PARTNER(S) ____ LIMITED
____ GENERAL
ATTORNEY-IN-FACT
---
TRUSTEE(S)
---
GUARDIAN/CONSERVATOR
---
OTHER: __________________
---
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SIGNER IS REPRESENTING:
Name of Person(s) or Entity(ies)
Equity Office Properties Trust, a Maryland real estate Investment trust,
------------------------------------------------------------------------
the managing general partner, of EOP Operating Limited Partnership, a
---------------------------------------------------------------------
Delaware limited partnership, the sole member, of EOP-ONE MARKET, LLC., a
-------------------------------------------------------------------------
Delaware limited liability company
----------------------------------
("Ground Lessor")
-----------------
--------------------------------------------------------------------------------
OPTIONAL SECTION
THIS CERTIFICATE MUST BE TITLE OR TYPE OF DOCUMENT: SUBORDINATION
ATTACHED TO THE DOCUMENT NON-DISTURBANCE AND ATTORNMENT AGREEMENT
DESCRIBED AT RIGHT: NUMBER OF PAGES
=========================
DATE OF DOCUMENT
------------------------
SIGNER(S) OTHER THAN NAMED ABOVE:
("Landlord") EOP-ONE MARKET, LLC., a
Delaware limited liability company
("Lender") Teachers insurance and
Annuity Association of America
("Tenant")
------------------------------
----------------------------------------
Though the data requested here is not required by law, it could prevent
-----------------------------------------------------------------------
fraudulent reattachment of this form.
-------------------------------------
C-8
NOTARY ACKNOWLEDGMENT
(LANDLORD)
State of_____________________
County of_______________________ )
On _______________________________ before me, __________________________________
personally appeared ____________________________________________________________
of Equity Office Properties Trust, a Maryland real estate investment trust, the
-------------------------------------------------------------------------------
managing general partner, of EOP Operating Limited Partnership, a Delaware
--------------------------------------------------------------------------
limited partnership, the sole member, of EOP-ONE MARKET, LLC., a Delaware
-------------------------------------------------------------------------
limited liability company
-------------------------
personally known to me - OR - proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s)
is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the
same in his/her/their authorized capacity(ies),
and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed
the instrument.
WITNESS my hand and official seal.
----------------------------------
Notary Public
My Commission Expires:__________________________
________________________________________________________________________________
OPTIONAL SECTION
CAPACITY CLAIMED BY SIGNER
Though statute does not require the Notary to fill In the data below, doing
so may prove invaluable to persons relying on the document
(check one)
INDIVIDUAL
---
XXX CORPORATE OFFICER
---
TITLE:
--------------------
___ PARTNER(S) ____LIMITED
____GENERAL
___ ATTORNEY-IN-FACT
___ TRUSTEE(S)
___ GUARDIAN/CONSERVATOR
___ OTHER: __________________
C-9
SIGNER IS REPRESENTING:
Name of Person(s) or Entity(ies)
Equity Office Properties Trust, a Maryland real estate Investment trust,
------------------------------------------------------------------------
the managing general partner, of EOP Operating Limited Partnership,
-------------------------------------------------------------------
a Delaware Limited Partnership, the sole member, of EOP-ONE MARKET,
-------------------------------------------------------------------
LLC., a Delaware limited liability company ("Landlord")
-------------------------------------------------------
--------------------------------------------------------------------------------
OPTIONAL SECTION
THIS CERTIFICATE MUST BE TITLE OR TYPE OF DOCUMENT: Subordination
ATTACHED TO THE DOCUMENT Non-Disturbance and Attornment Agreement
DESCRIBED AT RIGHT: NUMBER OF PAGES________________
DATE OF DOCUMENT_______________
SIGNER(S) OTHER THAN NAMED ABOVE:
("Ground Lessor") EOP-ONE MARKET, LLC., a
Delaware limited liability company
("Lender") Teachers Insurance and Annuity
Association of America
("Tenant")______________________
________________________________
Though the data requested here is not required by law, it could prevent
-----------------------------------------------------------------------
fraudulent reattachment of this form.
-------------------------------------
C-10
NOTARY ACKNOWLEDGMENT
(Lender)
State of____________________________
County of____________________________
On __________________ before me, ________________________________________
personally appeared __________________________________________________________
personally known to me - OR - proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and
acknowledged to me that he/she/they executed the
same in his/her/their authorized capacity(ies),
and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the
instrument.
WITNESS my hand and official seal.
-----------------------------------
Notary Public
My Commission Expires:____________________________________
--------------------------------------------------------------------------------
OPTIONAL SECTION
CAPACITY CLAIMED BY SIGNER
Though statute does not require the Notary to fill in the data below, doing
so may prove invaluable to persons relying on the document.
(check one)
___ INDIVIDUAL
XXX CORPORATE OFFICER
---
TITLE:_________________________________
___ PARTNER(S) ____LIMITED
____GENERAL
___ ATTORNEY-IN-FACT
___ TRUSTEE(S)
___ GUARDIAN/CONSERVATOR
___ OTHER: __________________
C-11
SIGNER IS REPRESENTING:
Name of Person(s) or Entity(ies)
Teachers Insurance and Annuity
------------------------------
Association of America
----------------------
("Lender")
--------------------------------------------------------------------------------
OPTIONAL SECTION
THIS CERTIFICATE MUST BE TITLE OR TYPE OF DOCUMENT: Subordination
ATTACHED TO THE DOCUMENT Non-Disturbance and Attornment Agreement
DESCRIBED AT RIGHT: NUMBER OF PAGES ___________________________
DATE OF DOCUMENT __________________________
SIGNER(S) OTHER THAN NAMED ABOVE:
("Ground Lessor") EOP-ONE MARKET, LLC., a
Delaware limited liability company
("Landlord") EOP-ONE MARKET, L.L.C.,
Delaware limited liability company
("Tenant")________________________________
__________________________________________
Though the data requested here is not required by law, it could prevent
-----------------------------------------------------------------------
fraudulent reattachment of this form.
-------------------------------------
C-12
NOTARY ACKNOWLEDGMENT
(TENANT)
State of ____________________)
County of ________________________)
On ________________ before me, ________________________________________________
personally appeared
personally known to me - OR - proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and
acknowledged to me that he/she/they executed the
same in his/her/their authorized capacity(ies),
and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the
instrument.
WITNESS my hand and official seal.
--------------------------------------------
Notary Public
My Commission Expires: ______________________________
--------------------------------------------------------------------------------
OPTIONAL SECTION
CAPACITY CLAIMED BY SIGNER
Though statute does not require the Notary to fill in the data below, doing
so may prove invaluable to persons relying on the document.
(check one)
___ INDIVIDUAL
XXX CORPORATE OFFICER
---
TITLE: _______________________
___ PARTNER(S) ____LIMITED
____GENERAL
___ ATTORNEY-IN-FACT
___ TRUSTEE(S)
___ GUARDIAN/CONSERVATOR
___ OTHER: __________________
C-13
SIGNER IS REPRESENTING:
Name of Person(s) or Entity(ies)
---------------------------------
---------------------------------
("Tenant')
--------------------------------------------------------------------------------
OPTIONAL SECTION
THIS CERTIFICATE MUST BE TITLE OR TYPE OF DOCUMENT: SUBORDINATION
ATTACHED TO THE DOCUMENT Non-Disturbance and Attornment Agreement
DESCRIBED AT RIGHT: NUMBER OF PAGES______________________
DATE OF DOCUMENT_____________________
SIGNER(S) OTHER THAN NAMED ABOVE:
("Ground Lessor") EOP-ONE MARKET, LLC., a
Delaware limited liability company
("Landlord") EOP-ONE MARKET, LLC., a Delaware
limited liability company
("Lender") Teachers Insurance and Annuity
Association of America
Though the data requested here is not required by law, it could prevent
-----------------------------------------------------------------------
fraudulent reattachment of this form.
-------------------------------------
C-14
EXHIBIT A
LEGAL DESCRIPTION
-----------------
THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF
SAN FRANCISCO, CITY OF SAN FRANCISCO, AND IS DESCRIBED AS FOLLOWS:
BEGINNING AT THE POINT OF INTERSECTION OF THE NORTHWESTERLY LINE OF MISSION
STREET WITH THE SOUTHWESTERLY LINE OF XXXXXXX STREET; THENCE NORTH 44 DEGREES
51' 00" XXXX XXXXX XXXX XXXXXXXXXXXXX LINE, 334.33 FEET TO A POINT IN A LINE
PARALLEL WITH AND DISTANT 334.33 FEET NORTHWESTERLY, MEASURED AT RIGHT ANGLES,
FROM SAID NORTHWESTERLY LINE OF MISSION STREET; THENCE SOUTH 45 DEGREES 08' 09"
WEST ALONG SAID PARALLEL LINE 32 FEET AND 4-1-1/2 INCHES; THENCE NORTH 44
DEGREES 51' 51" WEST 6 FEET AND 1-1/2, INCHES; THENCE SOUTH 45 DEGREES 08' 09"
WEST 16 FEET AND 4 INCHES; THENCE NORTH 44 DECREES 51' 51" WEST 112 FEET AND 5-
1/8 INCHES; THENCE SOUTH 45 DEGREES 08' 09" WEST 177 FEET AND 7-1/2 INCHES;
THENCE SOUTH 44 DEGREES 51' 51" EAST 112 FEET AND 5-1/8 INCHES; THENCE SOUTH 45
DEGREES 08' 09" WEST 16 FEET AND 3-112 INCHES; THENCE SOUTH 44 DEGREES 51' 51"
EAST 6 FEET AND 1-112 INCHES TO A POINT IN SAID PARALLEL LINE; THENCE SOUTH 45
DEGREES 09' 09" WEST ALONG SAID PARALLEL LINE 32 FEET AND 4-1/2 INCHES TO A
POINT IN THE NORTHEASTERLY LINE OF SPEAR STREET; THENCE SOUTH 44 DEGREES 51' 51"
EAST ALONG SAID NORTHEASTERLY LINE, 334.33 FEET TO A POINT IN SAID NORTHWESTERLY
LINE OF MISSION STREET; THENCE NORTH 45 DEGREES 08' 09" EAST ALONG SAID
NORTHWESTERLY LINE 274 FEET TO THE POINT OF BEGINNING.
C-15
EXHIBIT D
BUILDING RULES AND REGULATIONS
------------------------------
The following rules and regulations shall apply, where applicable, to the
Premises, the Building, the parking garage (if any), the Project and the
appurtenances. Capitalized terms have the same meaning as defined in the Lease.
1. Sidewalks, doorways, vestibules, halls, stairways and other similar areas
shall not be obstructed by tenant or used by tenant for any purpose other
than ingress and egress to and from the premises. no rubbish, litter,
trash, or material shall be placed, emptied, or thrown in those areas. at
no time shall tenant permit tenant's employees to loiter in common areas
or elsewhere about the building or project.
2. Plumbing fixtures and appliances shall be used only for the purposes for
which designed, and no sweepings, rubbish, rags or other unsuitable
material shall be thrown or placed in the fixtures or appliances. Damage
resulting to fixtures or appliances by Tenant, its agents, employees or
invitees, shall be paid for by Tenant, and Landlord shall not be
responsible for the damage.
3. No signs, advertisements or notices shall be painted or affixed to
windows, doors or other parts of the Building, except those of such
color, size, style and in such places as are first approved in writing by
Landlord. All tenant identification and suite numbers at the entrance to
the Premises shall be installed by Landlord, at Tenant's cost and
expense, using the standard graphics for the Building. Except in
connection with the hanging of lightweight pictures and wall decorations,
no nails, hooks or screws shall be inserted into any part of the Premises
or Building except by the Building maintenance personnel.
4. Landlord may provide and maintain in the first floor (main lobby) of the
Building an alphabetical directory board or other directory device
listing tenants, and no other directory shall be permitted unless
previously consented to by Landlord in writing.
5. Tenant shall not place any lock(s) on any door in the Premises or
Building without Landlord's prior written consent and Landlord shall have
the right to retain at all times and to use keys to all locks within and
into the Premises. A reasonable number of keys to the locks on the entry
doors in the Premises shall be furnished by Landlord to Tenant at
Tenant's cost, and Tenant shall not make any duplicate keys. All keys
shall be returned to Landlord at the expiration or early termination of
this Lease.
6. All contractors, contractor's representatives and installation
technicians performing work in the Building shall be subject to
Landlord's prior approval and shall be required to comply with Landlord's
standard rules. regulations, policies and procedures, which may be
revised from time to time.
7. Movement in or out of the Building of furniture or office equipment, or
dispatch or receipt by Tenant of merchandise or materials requiring the
use of elevators, stairways, lobby areas or loading dock areas, shall be
restricted to hours designated by Landlord. Tenant shall obtain
Landlord's prior approval by providing a detailed listing of the
D-1
activity. If approved by Landlord, the activity shall be under the
supervision of Landlord and performed in the manner required by Landlord.
Tenant shall assume all risk for damage to articles moved and injury to
any persons resulting from the activity. If equipment, property, or
personnel of Landlord or of any other party is damaged or injured as a
result of or in connection with the activity, Tenant shall be solely
liable for any resulting damage or loss.
8. Landlord shall have the right to approve the weight, size, or location of
heavy equipment or articles in and about the Premises. Damage to the
Building by the installation, maintenance, operation, existence or
removal of Tenant's Property shall be repaired at Tenant's sole expense.
9. Corridor doors, when not in use, shall be kept closed.
10. Tenant shall not (1) make or permit any improper, objectionable or
unpleasant noises or odors in the Building, or otherwise interfere in any
way with other tenants or persons having business with them; (2) solicit
business or distribute, or cause to be distributed, in any portion of the
Building, handbills, promotional materials or other advertising; or (3)
conduct or permit other activities in the Building that might, in
Landlord's sole opinion, constitute a nuisance.
11. No animals, except those assisting handicapped persons, shall be brought
into the Building or kept in or about the Premises.
12. No inflammable, explosive or dangerous fluids or substances shall be used
or kept by Tenant in the Premises, Building or about the Project. Tenant
shall not, without Landlord's prior written consent, use, store, install,
spill, remove, release or dispose of, within or about the Premises or any
other portion of the Project, any asbestos-containing materials or any
solid, liquid or gaseous material now or subsequently considered toxic or
hazardous under the provisions of 42 U.S.C. Section 9601 et seq. or any
other applicable environmental Law which may now or later be in effect.
Tenant shall comply with all laws pertaining to and governing the use of
these materials by Tenant, and shall remain solely liable for the costs
of abatement and removal.
13. Tenant shall not use or occupy the Premises in any manner or for the
purpose which might injure the reputation or impair the present or future
value of the Premises or the Building. Tenant shall not use, or permit
any part of the Premises to be used, for lodging, sleeping or for any
illegal purpose.
14. Tenant shall not take any action which would violate Landlord's labor
contracts or which would cause a work stoppage, picketing, labor
disruption or dispute, or interfere with Landlord's or any other tenant's
or occupant's business or with the rights and privileges of any person
lawfully in the Building ("Labor Disruption"). Tenant shall take the
actions necessary to resolve the Labor Disruption, and shall have pickets
removed and, at the request of Landlord, immediately terminate any work
in the Premises that gave rise to the Labor Disruption, until Landlord
gives its written consent for the work to resume. Tenant shall have no
claim for damages against Landlord or any of the Landlord Related
D-2
Parties, nor shall the Commencement Date of the Term be extended as a
result of the above actions.
15. Tenant shall not install, operate or maintain in the Premises or in any
other area of the Building, electrical equipment that would overload the
electrical system beyond its capacity for proper, efficient and safe
operation as determined solely by Landlord. Tenant shall not furnish
cooling or heating to the Premises, including, without limitation, the
use of electronic or gas heating devices, without Landlord's prior
written consent. Tenant shall not use more than its proportionate share
of telephone lines and other telecommunication facilities available to
service the Building.
16. Tenant shall not operate or permit to be operated a coin or token
operated vending machine or similar device (including, without
limitation, telephones, lockers, toilets, scales, amusement devices and
machines for sale of beverages, foods, candy, cigarettes and other
goods), except for machines for the exclusive use of Tenant's employees,
and then only if the operation does not violate the lease of any other
tenant in the Building.
17. Bicycles and other vehicles are not permitted inside the Building or on
the walkways outside the Building, except in areas designated by
Landlord.
18. Landlord may from time to time adopt systems and procedures for the
security and safety of the Building, its occupants, entry, use and
contents. Tenant, its agents, employees, contractors, guests and invitees
shall comply with Landlord's systems and procedures.
19. Landlord shall have the right to prohibit the use of the name of the
Building or any other publicity by Tenant that in Landlord's sole opinion
may impair the reputation of the Building or its desirability. Upon
written notice from Landlord, Tenant shall refrain from and discontinue
such publicity immediately.
20. Tenant shall not canvass, solicit or peddle in or about the Building or
the Project.
21. Neither Tenant nor its agents, employees, contractors, guests or invitees
shall smoke or permit smoking In the Common Areas, unless the Common
Areas have been declared a designated smoking area by Landlord, nor shall
the above parties allow smoke from the Premises to emanate into the
Common Areas or any other part of the Building. Landlord shall have the
right to designate the Building (including the Premises) as a non-smoking
building.
22. Landlord shall have the right to designate and approve standard window
coverings for the Premises and to establish rules to assure that the
Building presents a uniform exterior appearance. Tenant shall ensure, to
the extent reasonably practicable, that window coverings are closed on
windows in the Premises while they are exposed to the direct rays of the
sun.
23. Deliveries to and from the Premises shall be made only at the times, in
the areas and through the entrances and exits designated by Landlord.
Tenant shall not make deliveries to or from the Premises in a manner that
might interfere with the use by any other tenant
D-3
of its premises or of the Common Areas, any pedestrian use, or any use
which is inconsistent with good business practice.
24. The work of cleaning personnel shall not be hindered by Tenant after 5:30
P.M., and cleaning work may be done at any time when the offices are
vacant. Windows, doors and fixtures may be cleaned at any time. Tenant
shall provide adequate waste and rubbish receptacles to prevent
unreasonable hardship to the cleaning service.
