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EXHIBIT 10.43
SUBLEASE AGREEMENT
THIS SUBLEASE AGREEMENT (the "SUBLEASE") is dated as of May 22, 2000,
by and between HS RESOURCES, INC., a Delaware corporation, hereinafter called
"SUBLANDLORD," and COOLEY GODWARD LLP, a California limited liability
partnership, hereinafter called "SUBTENANT.")
A. Sublandlord is the lessee of the entire Fifteenth (15th) Floor (the
"FIFTEENTH FLOOR") of that certain building commonly known as One Maritime
Plaza, San Francisco, California (the "BUILDING"), pursuant to that certain
Office Lease dated October 6, 1993, as amended by a Term Commencement Agreement
dated January 13, 1994 between Sublandlord, as tenant, and JMB Group Trust IV
and Endowment and Foundation Realty, Ltd.-- JMB-III, whose successor in interest
is Stanley M. Stevens, not personally, but solely as successor Trustee under
Trust Agreement and Declaration of Trust dated February 19, 1997 and known as
Trust No. 350, the beneficiary of which is EOP-MARITIME, L.L.C., a Delaware
limited liability company (hereinafter called "MASTER LANDLORD"), as landlord.
Said Office Lease, a full and complete copy of which is attached hereto as
EXHIBIT A, is hereinafter called the "MASTER LEASE".
B. The parties desire to set forth in this Sublease the terms,
conditions and provisions based upon which Subtenant shall lease the Subleased
Suite 1550 Premises (being a portion of the Fifteenth Floor more particularly
hereinafter defined) from Sublandlord.
NOW, THEREFORE, Sublandlord and Subtenant agree as follows:
1. SUBLEASED SUITE 1550 PREMISES. Sublandlord hereby leases to Subtenant
and Subtenant hereby hires from Sublandlord the following described
premises (hereinafter called the "SUBLEASED SUITE 1550 PREMISES"):
That portion of the Fifteenth Floor which is shown cross-hatched on the
sketch attached hereto as EXHIBIT B, together with the nonexclusive
right to use the related common areas including without limitation the
Fifteenth Floor lavatories, wire closet, electrical room, and elevator
lobby and the corridors providing access between the Subleased Suite
1550 Premises and said lavatories, wire closet, electrical room, and
elevator lobby.
Sublandlord and Subtenant agree that the Subleased Suite 1550 Premises
comprise a total of 9,834 rentable square feet.
2. TERM. The term of this Sublease shall be the period commencing on July
10, 2000 (the "TERM START Date"), and ending on December 31, 2003.
Sublandlord shall deliver possession of the Subleased Suite 1550
Premises to Subtenant in the condition specified in Section 4.(a),
below, on or before 7:00 a.m., San Francisco time, on the Term Start
Date to enable Subtenant to commence activities relating to the
construction of the Initial Subtenant Improvements defined in Section
4.(b), below, in
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accordance with the schedule of Subtenant's contractor, a copy of which
has been delivered to Sublandlord.
3. RENT. During the period commencing on September 1, 2000 (the "RENT
COMMENCEMENT DATE"), and ending December 31, 2003, Subtenant shall pay
to Sublandlord the following rent for the Subleased Suite 1550
Premises:
(a) GENERAL PROVISIONS. Base Rent and estimated Additional Rent
shall be due and payable in advance on the first day of each
calendar month, commencing on the Rent Commencement Date. If
any post-year reconciliation under Article 3.D. of the Master
Lease results in an underpayment or overpayment of Additional
Rent payable under the Master Lease for any period within
which rent is payable by Subtenant under this Sublease (a
"SUBLEASE RENT PERIOD"), such underpayment or overpayment
shall be governed by the provisions of Section 3.(c), below.
In the event that circumstances occur in which the rent
payable by Sublandlord to the Master Landlord with respect to
the Subleased Suite 1550 Premises is totally or partially
abated under the Master Lease, the rent payable by Subtenant
under this Sublease shall, for the same period and, except as
otherwise provided in Section 10.(c), below, to the same
proportional extent, be abated under this Sublease.
(b) BASIC RENT. The basic rent ("BASIC RENT") shall be as follows:
FOR THE PERIOD FROM THE RENT COMMENCEMENT DATE THROUGH
DECEMBER 31, 2000: Forty Nine Thousand One Hundred Seventy and
00/100ths Dollars ($49,170.00) per month, with rent for the
first month prorated based on the number of days from the Rent
Commencement Date to the end of the month;
FOR THE PERIOD JANUARY 1, 2001 THROUGH DECEMBER 31, 2002:
Fifty One Thousand Two Hundred Eighteen and 75/100ths Dollars
($51,218.75) per month; and
FOR THE PERIOD JANUARY 1, 2003 THROUGH DECEMBER 31, 2003:
Fifty Two Thousand Four Hundred Forty Eight and 00/100ths
Dollars ($52,448.00) per month.
(c) ADDITIONAL RENT. For the period beginning on the Rent
Commencement Date and continuing throughout the balance of the
Term of this Sublease, Subtenant shall pay Sublandlord 47.9
percent (being an agreed percentage obtained by dividing 9,834
by 20,548) of the estimated monthly Additional Rent payable by
Sublandlord for the Fifteen Floor under Article 3 of the
Master Lease. Each post-year reconciliation under Article 3.D.
of the Master Lease of Additional Rent payable for the Fifteen
Floor under the Master Lease for any period within which any
Sublease Rent Period falls shall be governed by the following
provisions: In the case of each Statement provided by the
Master Landlord under Article 3.D.(ii) of the Master Lease
(including any revised or corrected Statement) that covers any
period in which any Sublease Rent Period falls, Sublandlord
will deliver a copy of such Statement to Subtenant promptly
following Sublandlord's receipt
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thereof and will advise Subtenant whether such Statement is
acceptable to Sublandlord. For any such Statement that is
reasonably acceptable to Sublandlord and that shows an
overpayment or underpayment of Additional Rent, the following
provisions shall apply:
(i) If the entire period covered by the Statement is a
Sublease Rent Period, then 47.9 percent of the amount
of such overpayment or underpayment shall be
allocated to Subtenant.
(ii) If only part of the period covered by the Statement
is a Sublease Rent Period, then the amount of such
overpayment or underpayment to be allocated to
Subtenant shall be determined as follows: Subtenant's
total responsibility for Additional Rent for the
period covered by the Statement shall be 47.9 percent
of the amount obtained by multiplying the total
Additional Rent for the Statement period times a
fraction, the numerator of which is the number of
days of the Sublease Rent Period falling within the
Statement period and the denominator of which is 365,
if the Statement period is a year, or, if the
Statement period is other than a year, then the
actual number of days in the Statement period. There
shall be allocated to Subtenant that portion of the
overpayment or underpayment shown in the Statement
that, after taking into account the aggregate
estimated payments made for the Statement period by
Subtenant, will result in Subtenant having paid
exactly the amount that Subtenant is responsible for
paying for the Statement period pursuant to the
preceding sentence.
(iii) If an underpayment amount is allocable to Subtenant
pursuant to either Subsection (i) or Subsection (ii),
above, Subtenant shall pay Subtenant's allocable
amount to Sublandlord within fifteen (15) days after
Sublandlord's invoice therefor. If an overpayment is
allocable to Subtenant pursuant to either Subsection
(i) or Subsection (ii), above, Sublandlord shall
apply Subtenant's allocable amount of such
overpayment as a credit against payments of rent next
due under this Sublease following Sublandlord's
receipt of the Master Landlord's Statement showing
the overpayment; provided that, if the term of this
Sublease expires before the entire credit has been
applied, any unapplied amount of Subtenant's
allocable amount of such overpayment shall be paid by
Sublandlord to Subtenant in cash within the later of
(i) ten (10) days after the expiration of this
Sublease, or (ii) thirty (30) days after
Sublandlord's receipt of the Statement showing such
overpayment.
4. CONDITION OF SUBLEASED SUITE 1550 PREMISES; INITIAL SUBTENANT
IMPROVEMENTS.
(a) SUBLEASED SUITE 1550 PREMISES LEASED "AS IS". It is understood
and agreed that the Subleased Suite 1550 Premises are leased
by Sublandlord and hired by Subtenant on an "AS IS" basis,
without preparation, cleaning, or any obligation
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by Sublandlord to make leasehold improvements of any kind,
excepting only that (x) the Subleased Suite 1550 Premises will
be delivered by Sublandlord in the condition specified in the
next sentence, and (y) Sublandlord will pay one-half of
certain fees as set forth in Section 4.(b), below. Sublandlord
shall deliver the Subleased Suite 1550 Premises "broom clean"
and, subject to the exceptions stated in subsections (a)(i),
(a)(ii), and (a)(iii), below, free of occupants and free of
all personal property of Sublandlord. The exceptions are as
follows:
(i) Sublandlord shall have until midnight, July 14, 2000,
to remove the furniture in the construction area
shown as Area A on the sketch attached to this
Sublease as EXHIBIT C;
(ii) Sublandlord shall have until midnight, July 21, 2000,
to remove the furniture in the construction area
shown as Area B on the sketch attached to this
Sublease as EXHIBIT C; and
(iii) Sublandlord may continue to occupy and use for a
reasonable time those areas within the Subleased
Suite 1550 Premises identified as exterior offices
15/05, 15/06, 15/07, 15/08, 15/09, 15/10, and 15/11,
interior office 15/52, and interior secretarial area
15/49, all as shown on the sketch attached to this
Sublease as EXHIBIT D, provided that (1) in all
events, Sublandlord shall vacate said rooms and shall
remove all of Sublandlord's personal property
therefrom upon not less than ten (10) business days'
written notice to Sublandlord so that the progress of
demolition and construction related to the Initial
Subtenant Improvements defined in Section 4.(b),
below, is not impaired; (2) Sublandlord expressly
assumes all risk of any injury to persons occupying
and/or using said rooms for or on behalf of
Sublandlord and all risk of any damage to and/or loss
of Sublandlord's said personal property, and neither
Subtenant nor its contractors, subcontractors,
employees or agents, shall have any liability
therefor, and (3) Sublandlord indemnifies and agrees
to defend, save and hold harmless Subtenant and
Subtenant's partners, employees, agents, successors
and assigns, from any liability, damage, or expense
(including reasonable attorney's fees) arising from
any injury or damage to person or property caused by
the persons occupying and/or using said rooms for or
on behalf of Sublandlord.
(b) INITIAL SUBTENANT IMPROVEMENTS. Subtenant intends to construct
the initial improvements which are summarized in EXHIBIT E
attached to this Sublease (the INITIAL SUBTENANT
IMPROVEMENTS"). Sublandlord hereby approves and consents to
the Initial Subtenant Improvements. The Initial Subtenant
Improvements shall be subject to the Master Landlord's prior
approval under Article 8 of the Master Lease. Subtenant shall
be responsible for the preparation of all documentation
required to be submitted to the Master Landlord under said
Article 8. Sublandlord agrees to cooperate with Subtenant in
submitting such documentation to the Master Landlord and
requesting the Master Landlord's approval. Sublandlord will
pay one-half of the fees incurred by Subtenant's architect in
performing its building code review and in preparing the
conceptual drawing for the physical
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division of the Fifteenth Floor between the Subleased Suite
1550 Premises and the balance of the Fifteenth Floor (said
balance being hereinafter referred to as the "RETAINED SUITE
1500 PREMISES"). The other one-half of said fees and all other
costs of constructing the Initial Subtenant Improvements shall
be borne and paid by Subtenant. Prior to commencement of
construction of the Initial Subtenant Improvements, Subtenant
will provide Sublandlord with an estimated construction
schedule, and thereafter Subtenant will provide Sublandlord
with copies of any and all amendments to such schedule. To
further assist Sublandlord in keeping apprised of the progress
of construction, Subtenant will invite a representative of
Sublandlord to attend Subtenant's weekly construction
meetings.
It is understood that certain work at the north end of the
Fifteenth Floor elevator lobby, including the relocation
northward of the portal and doors comprising the entryway to
the Retained Suite 1500 Premises, will require temporary
closure of Sublandlord's northern reception area and
Sublandord's temporary use of its existing eastern doorway as
the main entryway into the Retained Suite 1500 Premises.
Subtenant will use reasonable efforts to cause Subtenant's
contractor to organize and perform Subtenant's work at the
north end of the Fifteenth Floor in such a manner that the
duration of the required closure of Sublandlord's northern
reception area will be as short as practicable, provided that
"reasonable efforts" shall mean efforts within the parameters
of Subtenant's normal construction plan and schedule and shall
not require Subtenant to incur increased construction costs,
whether for overtime, special work, or otherwise.
5. MASTER LEASE. All provisions of this sublease are in all events subject
to all provisions of the Master Lease. With respect to the Master
Lease, the parties agree as follows:
(a) COVENANTS OF SUBTENANT. Subtenant agrees to perform for
Sublandlord's benefit all obligations of the tenant under the
Master Lease insofar as such obligations relate to the
Subleased Suite 1550 Premises and arise during the term of
this Sublease, except for any obligations arising under the
following provisions of the Master Lease (the "EXCLUDED
PROVISIONS"), which obligations will not be performed by
Subtenant and either are inapplicable to this Sublease or, to
the extent that they are applicable, will be performed by
Sublandlord:
i. Article 2 and Rider Three (Base Rent);
ii. Article 3 (Additional Rent), except insofar
as made applicable pursuant to Section 3.(c)
of this Sublease;
iii. Article 4 (Commencement of Term);
iv. Article 34 (Real Estate Brokers);
v. Article 35 (Security Deposit);
vi. Rider Five (Rights of First Opportunity);
vii. Rider Six (Expansion Space); and
viii. Rider Seven (Early Termination).
(b) COVENANTS OF SUBLANDLORD. During the Term of this Sublease,
Sublandlord agrees to pay to the Master Landlord, as and when
due, all rent and any other sums owing by Sublandlord under
the Master Lease, and Sublandlord agrees to
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perform as and when performance is due all other provisions of
the Master Lease (including without limitation any applicable
Excluded Provisions) that need to be performed (to the extent
such provisions are not undertaken by Subtenant under Section
5.(a), above) in order to maintain the Master Lease in full
force and effect during the term of this Sublease. In this
connection, it is understood and agreed that the undertakings
by Subtenant under Section 5.(a) relate only to matters
arising during the term of this Sublease. If there are
obligations under the Master Lease requiring performance by
the tenant thereunder, including without limitation any
conditions of the Subleased Suite 1550 Premises requiring
repair or alteration of the Subleased Suite 1550 Premises to
comply with applicable law or to correct any damage or defect,
that have arisen prior to the Term Start Date (excluding,
however, any such obligations that are subsumed by, and thus
will no longer be required under the Master Lease following
completion of, the Initial Subtenant Improvements),
Sublandlord will remain responsible to the Master Landlord to
perform such obligations, and Subtenant shall have no
responsibility therefor.
The Master Lease includes express covenants made by the Master
Landlord and describes Master Landlord's duties in connection
with the operation of the premises within which the Sublease
Premises are located. Sublandlord shall not be liable for
Master Landlord's breach of any provision of the Master Lease
or for any misrepresentation by Master Landlord. However, if
Master Landlord fails to perform an obligation that affects
the Subleased Suite 1550 Premises and that Subtenant desires
to enforce, Subtenant shall notify Sublandlord, and
Sublandlord will promptly notify the Master Landlord and
demand performance. If the Master Landlord continues to fail
to perform, Sublandlord will cooperate with Subtenant in
seeking any recourse from the Master Landlord which may be
reasonably needed to enforce the obligations of Master
Landlord insofar as such obligations may pertain to the
Subleased Suite 1550 Premises, and Sublandlord will provide
such cooperation at Sublandlord's expense, subject in all
events to each the following limitations: (i) the term
"cooperation" shall not require Sublandlord to make any
economic payments or concessions to Master Landlord or alter
in any way Sublandlord's rights or obligations as tenant under
the Master Lease; (ii) "cooperation" shall not require
Sublandlord to initiate or prosecute any administrative or
judicial action against Master Landlord unless either (aa)
Master Landlord's breach has caused or will cause loss by
Subtenant of possession of the Subleased Suite 1550 Premises
or other circumstances that substantially interfere with
Subtenant's ability to carry on its business operations in the
Subleased Suite 1550 Premises, or (bb) Subtenant arranges for
and pays all costs and expenses of the legal representation
needed to initiate and prosecute such action.
6. INSURANCE; WAIVER OF SUBROGATION.
(a) Subtenant, at its cost, shall maintain comprehensive (or
commercial) general liability insurance with respect to the
Subleased Suite 1550 Premises in form, coverage and amount
that meet the requirements of Article 11 of the Master Lease.
Such insurance shall name Sublandlord and the Master Landlord
as additional insureds. Subtenant, at its cost, also shall
maintain on all of its
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personal property "all risk" property damage insurance in
form, coverage and amount that meet the requirements of
Article 11 of the Master Lease. Subtenant shall provide
Sublandlord with a certificate evidencing each policy of such
insurance.
(b) Each party to this Sublease hereby releases the other party
and the respective partners, agents, employees, and authorized
representatives of such released party, from any claims such
releasing party may have for damage to the Subleased Suite
1550 Premises or any of such releasing party's fixtures,
personal property, improvements and alterations in or about
the Subleased Suite 1550 Premises or the Building that is
caused by or results from risks insured against under any fire
and extended coverage insurance policies actually carried by
such releasing party or required to be carried by such party
pursuant to this Sublease or the Master Lease. Each party
hereto shall cause each such fire and extended coverage
insurance policy obtained by it to provide that the insurance
company waives all rights of recovery by way of subrogation
against the other respective party and the other aforesaid
released parties in connection with any matter covered by such
policy.
7. ALTERATIONS. Subtenant shall be entitled to make the Initial Subtenant
Improvements subject to the requirements of Section 4.(b) of this
Sublease. Subtenant will not make or allow to be made any other
alteration, addition, or improvement in or to the Subleased Suite 1550
Premises except upon the prior written consent of Sublandlord (which
Sublandlord agrees not to withhold unreasonably) and any prior approval
of the Master Landlord required under Article 8 of the Master Lease.
Any alterations and additions to which Sublandlord and Master Landlord
have consented shall be made strictly in compliance with the applicable
terms and provisions of the Master Lease.
8. ASSIGNMENT AND SUBLETTING. Subtenant shall not assign, transfer,
mortgage, pledge, hypothecate or encumber this Sublease, or any
interest therein, and shall not sublet the Subleased Suite 1550
Premises or any portion thereof, or any right or privilege appurtenant
thereto, (any such assignment, transfer, mortgage, pledge,
hypothecation, encumbrance, or subletting being herein referred to as a
"transfer"), without the prior written consent of Sublandlord, which
consent Sublandlord will not withhold unreasonably. Regardless of
Sublandlord's consent, no transfer shall release or otherwise alter
Subtenant's obligations to pay the rent and to perform all other
obligations to be performed by Subtenant hereunder. Consent to one
transfer shall not be deemed consent to any subsequent transfer.
Notwithstanding any other provisions of this Section 8, Subtenant shall
not be required to obtain Sublandlord's prior consent to the following
transactions, each of which shall be exempt from the provisions of this
Section 8 except for the notice requirement set forth in the last
sentence of this paragraph: (i) any changes in the constituent partners
of Subtenant (or other equity owners of Subtenant if Subtenant should
convert to a form of entity other than a partnership) resulting from
the addition of partners (or such other equity owners) or the death,
retirement or withdrawal of partners (or such other equity owners);
(ii) a conversion of Subtenant from one form of entity to another form
of entity; (iii) a combination of Subtenant with another law firm
(regardless of whether Subtenant
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or the other law firm is the surviving entity) so long as Subtenant's
obligations under this Sublease are assumed by the surviving entity. In
the event of a transaction of the kind described in either subsection
(ii) or (iii), above, promptly following the completion of such
transaction, Subtenant will give Sublandlord written notice thereof.
9. CERTAIN RIGHTS AND OPTIONS.
(a) NO RIGHT TO EXPAND OR EXTEND MASTER LEASE. Sublandlord
warrants and represents to Subtenant and confirms and agrees
that Sublandlord does not presently have any option or other
right to expand or to extend the term of the Master Lease
beyond December 31, 2003, and Sublandlord will not, whether
pursuant to an option or right hereafter acquired or
otherwise, expand or extend the term of the Master Lease
beyond December 31, 2003.
(b) NONEXERCISE OF EARLY TERMINATION RIGHT. Sublandlord warrants
and represents to Subtenant and confirms and agrees that
Sublandlord irrevocably waives and will not exercise the right
of early termination set forth in Rider Seven of the Master
Lease.
(c) SUBORDINATION OF RIGHT OF FIRST OPPORTUNITY REGARDING 16TH
FLOOR. Sublandlord has a Right of First Opportunity regarding
the 14th and 16th Floors of the Building as set forth in Rider
Five of the Master Lease (insofar as such Right of First
Opportunity relates to the 16th Floor, such Right is
hereinafter referred to as "SUBLANDLORD'S 16TH FLOOR ROFO").
Subtenant leases other space in the Building from the Master
Landlord and is in the process of completing an addendum to
its lease pertaining to such other space which addendum will
include, among other things, a right of first offer with
respect to the 16th Floor (which right is hereinafter referred
to as "SUBTENANT'S 16TH FLOOR ROFO"). Sublandlord hereby
subordinates Sublandlord's 16th Floor ROFO to Subtenant's 16th
Floor ROFO, with the result that Subtenant's 16th Floor ROFO
shall be senior to and have priority over Sublandlord's 16th
Floor ROFO to the same extent and with the same effect as if
Subtenant's 16th Floor ROFO had been granted to Subtenant by
the Master Landlord prior to the time that Sublandlord's 16th
Floor ROFO was granted to Sublandlord by the Master Landlord.
(d) RIGHT OF FIRST OFFER ON RETAINED PREMISES. If Sublandlord
should desire to assign or sublet the Retained Suite 1500
Premises to any third party, Sublandlord shall first give
Subtenant a written offer to assign or sublet the Retained
Suite 1500 Premises to Subtenant, which offer shall set forth
the proposed terms, conditions and provisions of such
assignment or subletting. Subtenant shall have twenty (20)
days within which to notify Sublandlord of Subtenant's
acceptance of such offer. If Subtenant does not give
Sublandlord notice of acceptance within said twenty (20) days,
then Sublandlord may proceed with such assignment or
subletting to any third party, provided that such assignment
or subletting shall not be on terms, conditions and provisions
more favorable to the third party than the terms, conditions
and provisions offered by Sublandlord to Subtenant.
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10. CASUALTY DAMAGE; CONDEMNATION; SERVICE/UTILITIES INTERRUPTION.
(a) MASTER LANDLORD'S TERMINATION OF MASTER LEASE. If there should
occur casualty damage to, or condemnation of, the premises
covered by the Master Lease which entitles the Master Landlord
to terminate the Master Lease under Article 10 (Casualty
Damage) or Article 12 (Condemnation) thereof, and if the
Master Landlord does so terminate the Master Lease, then, upon
such termination of the Master Lease, this Sublease, too,
shall terminate.
(b) WHERE MASTER LEASE NOT TERMINATED BY MASTER LANDLORD. If there
should occur casualty damage to, or condemnation of, the
premises covered by the Master Lease which entitles the tenant
under the Master Lease to terminate the Master Lease under
Article 10 (Casualty Damage) or Article 12 (Condemnation)
thereof, or if there should occur an interruption of services
or utilities which entitles the tenant under the Master Lease
to terminate the Master Lease under Article 7 (Services And
Utilities) thereof, the following provisions shall apply:
(i) IF ONLY SUBLEASED SUITE 1550 PREMISES AFFECTED. If
only a portion of the premises covered by the Master
Lease is affected by such casualty damage,
condemnation, or interruption of services or
utilities, and the affected portion lies entirely
within the Subleased Suite 1550 Premises, then
Subtenant shall have the right, exercisable as
hereinafter provided, to terminate this Sublease. If
the event concerned is casualty damage or
condemnation, Subtenant may terminate this Sublease
by giving Sublandlord notice of termination not later
than thirty (30) days after Subtenant has received
reasonable notice of the circumstances giving rise to
the tenant's termination right under Article 10 or
Article 12, as the case may be, of the Master Lease.
If the event concerned is an interruption of services
or utilities, Subtenant may terminate this Sublease
by giving Sublandlord notice of termination at a time
when such interruption is continuing and has
continued for at least ninety (90) days, provided
that if service is restored in the Subleased Suite
1550 Premises within thirty-five (35) days after the
date of Subtenant's notice, the Sublease will not
terminate but will remain in full force and effect.
If an event occurs that entitles Subtenant to
terminate the Sublease under this Subsection
10.(b)(i), and if Subtenant exercises such right of
termination, Subtenant's exercise of such right shall
be effective whether or not Sublandlord exercises its
right to terminate the Master Lease. If an event
occurs that entitles Subtenant to terminate the
Sublease under this Subsection 10.(b)(i), and if
Subtenant does not exercise such right of
termination, then the Sublease shall remain in full
force and effect, and Sublandlord agrees not to
exercise its right of termination under the Master
Lease.
(ii) IF RETAINED SUITE 1500 PREMISES AFFECTED. If the
Retained Suite 1500 Premises is affected by such
casualty damage, condemnation, or interruption of
services or utilities, whether or not the Sublease
Premises are also affected, the following provisions
shall apply:
(1) If Sublandlord and Subtenant mutually agree
that the Master Lease should be terminated,
then Sublandlord will exercise its right of
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termination under the Master Lease and, upon
termination of the Master Lease, this
Sublease also shall terminate.
(2) If Sublandlord and Subtenant mutually agree
that the Master Lease should not be
terminated, then Sublandlord will not
exercise its right of termination under the
Master Lease and this Sublease shall remain
in full force and effect.
(3) If Subtenant desires a termination but
Sublandlord does not, then (x) if the
Subleased Suite 1550 Premises are not
affected by such casualty damage,
condemnation, or interruption of services or
utilities, the Master Lease will not be
terminated and this Sublease will remain in
full force and effect, but (y) if the
Sublease Premises are affected by such
casualty damage, condemnation, or
interruption of services or utilities,
Subtenant will have the right to terminate
this Sublease in the same manner as set
forth in Subsection 10.(b)(i), above.
(4) If Sublandlord desires a termination but
Subtenant does not, then Sublandlord shall
first give Subtenant a written offer to
assign the Master Lease to Subtenant,
without consideration other than Subtenant's
assumption of all of the tenant's
obligations under the Master Lease to be
performed from and after the time of the
assignment. If Subtenant accepts such offer
by giving notice of acceptance to
Sublandlord within twenty (20) days after
Subtenant's receipt of Sublandlord's offer,
then the Master Lease shall be assigned to
Subtenant and, upon the Master Landlord's
consent to such assignment, Sublandlord
shall surrender the Retained Suite 1500
Premises to Subtenant. If Subtenant does not
accept such offer within said twenty (20)
day period, then Sublandlord shall be free
to exercise its right to terminate the
Master Lease.
(c) ABATEMENT OF RENT. If, pursuant to the terms of the Master
Lease, Sublandlord is entitled to a total or partial abatement
of rent in connection with casualty damage to, condemnation
of, or an interruption of services or utilities provided to
the premises covered by the Master Lease, the rent payable by
Subtenant under this Sublease shall, for the same period and
to the extent provided in the next sentence, be abated under
this Sublease. If the abatement of rent under the Master Lease
is total, then the abatement of rent under this Sublease shall
be total. If the abatement of rent under the Master Lease is
partial, then the abatement of rent under this Sublease shall
be that percentage of the rent payable under this Sublease
that equals that percentage of the Subleased Suite 1550
Premises that are affected by said casualty damage,
condemnation, or interruption of services or utilities.
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11. DEFAULT. Either of the following events shall constitute a default by
Subtenant under this Sublease:
(a) Subtenant's failure to pay rent on or before the date when
rent is due, if the failure continues for five (5) days after
notice of nonpayment has been given to Subtenant; provided,
however, that, in the event of two (2) failures in any
calendar year to pay any rent on or before the date when it is
due, after the second of such two (2) failures, any further
failure during such calendar year to pay any rent on or before
the date it is due shall be an immediate default by Subtenant;
or
(b) Subtenant's failure to comply with any other term, provision,
condition or covenant of this Sublease (including without
limitation any provision of the Master Lease made applicable
by this Sublease and any of the rules and regulations now or
hereafter established for the government of the Building
pursuant to the Master Lease), if Subtenant does not within
thirty (30) days after Subtenant's receipt of notice of such
failure from Sublandlord, either cure such failure or, if such
cure cannot reasonably be completed within that time, commence
effective action to effect such cure and diligently pursue
such action to completion as soon as reasonably possible
thereafter; provided, however, that in all events such cure
shall be completed prior to the expiration of any applicable
time period specified in the Master Lease for the curing of
such default.
In the event of a default by Subtenant, Sublandlord shall have the
following remedies; these remedies are not exclusive, but are
cumulative in addition to any other remedies now or later allowed by
law:
(1) Sublandlord may at Sublandlord's option continue this Sublease
in full force and effect, without termination hereof for so
long as Sublandlord does not terminate Subtenant's right to
possession of the Subleased Suite 1550 Premises, and
Sublandlord shall in such case have the remedy described in
the provisions of California Civil Code Section 1951.4 then in
effect.
(2) Sublandlord may, at Sublandlord's option, terminate this Lease
at any time by giving Subtenant written notice of such
termination. In the event of such termination, Sublandlord
shall have the right to recover from Subtenant all amounts
recoverable pursuant to the provisions of California Civil
Code Section 1951.2 then in effect.
12. SURRENDER OF SUBLEASED SUITE 1550 PREMISES. Subtenant agrees to
surrender the Subleased Suite 1550 Premises, including the Initial
Subtenant Improvements and any subsequent alterations, additions or
improvements made in compliance with Section 7. of this Sublease,
immediately upon the termination of this Sublease in at least as good
condition as when received by Subtenant, reasonable use and wear
thereof excepted.
13. BROKERAGE.
(a) SUBTENANT'S INDEMNITY. Subtenant represents and warrants to
Sublandlord that neither it nor its employees or agents nor
anyone acting on its behalf has employed any broker or finder
in connection with this Sublease, and no liability has been
incurred or will be incurred by or on behalf of Subtenant
directly or indirectly for any agent's, broker's, salesman's,
or finder's fees or commissions in
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connection with this Sublease. Subtenant hereby indemnifies
and agrees to defend, save and hold harmless Sublandlord and
Sublandlord's officers, employees, agents, successors and
assigns from any liability, damage, or expense (including
reasonable attorney's fees) arising from any such fees or
commissions claimed to have been incurred by or on behalf of
Subtenant.
(b) SUBLANDLORD'S INDEMNITY. Sublandlord represents and warrants
to Subtenant that neither it nor its employees or agents nor
anyone acting on its behalf has employed any broker or finder
in connection with this Sublease, and no liability has been
incurred or will be incurred by or on behalf of Sublandlord
directly or indirectly for any agent's, broker's, salesman's,
or finder's fees or commissions in connection with this
Sublease. Sublandlord hereby indemnifies and agrees to defend,
save and hold harmless Subtenant and Subtenant's partners,
employees, agents, successors and assigns from any liability,
damage, or expense (including reasonable attorney's fees)
arising from any such fees or commissions claimed to have been
incurred by or on behalf of Sublandlord.
14. NOTICES. All notices, approvals, consents, and other communications
("Notices") required or permitted to be given under this Sublease must
be in writing and may be given by any method of delivery which provides
evidence or confirmation of receipt including but not limited to
personal delivery, express courier (such as Federal Express),
facsimile, and prepaid certified or registered mail with return receipt
requested. Notices shall be deemed to have been given and received on
the earlier of actual receipt, refusal to accept delivery, or three (3)
business days after the day of deposit into prepaid registered or
certified U.S. mail. Notices shall be given and/or addressed to the
respective parties at the following addresses:
If to Sublandlord: HS Resources, Inc.
Attn: James E. Duffy,
One Maritime Plaza
Suite 1500
San Francisco, CA 94111
With copy to: HS Resources, Inc.
Attn: James M. Piccone, Esq.
1999 Broadway, Suite 3600
Denver, CO 80202
If to Subtenant: Cooley Godward LLP
Attn: Partner-In-Charge, San Francisco
One Martime Plaza, Suite 2000
San Francisco, CA 94111-3580
With copy to: Cooley Godward LLP
Attn: Susan Turek
One Maritime Plaza, Suite 2000
San Francisco, CA 94111-3580
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Either party may change the address of such party set forth above by
giving notice of such change to such other party in conformance with
the provisions of this paragraph 14.
15. SUCCESSORS AND ASSIGNS. Subject in all events to Section 8. of this
Sublease, the provisions of this Sublease shall be binding upon and
inure to the benefit of the parties hereto and their respective
successors and assigns.
16. TIME OF ESSENCE. It is expressly understood and agreed that time is of
the essence of each and every provision of this Sublease.
17. SIGNAGE. Subject to any approval of the Master Landlord that may be
required under the Master Lease, Subtenant shall be entitled to
Building standard signage for the Subleased Suite 1550 Premises in the
Main Building Lobby and in the Fifteenth Floor elevator lobby and
signage at the entry to the Subleased Suite 1550 Premises comparable to
Subtenant's entry signage on other floors of the Building leased by
Subtenant directly from the Master Landlord. Sublandlord consents to
such signage and agrees to cooperate with Subtenant in seeking any
necessary approvals from the Master Landlord. All costs of all such
signage, including any charges by the Master Landlord and costs of
installation and maintenance costs of such entry signage, shall be
borne and paid by Subtenant.
18. ENTIRE AGREEMENT. This Sublease constitutes the final expression, and
the complete and exclusive statement of the terms, of the agreement
between the parties pertaining to the subject matter contained herein
and supersedes all prior and contemporaneous agreements,
representations and understandings of the parties.
19. CONSENT OF MASTER LANDLORD. Notwithstanding anything to the contrary
herein, it is understood and agreed that this Sublease shall not become
effective unless and until the consent thereto of the Master Landlord
is obtained. Sublandlord will apply for the Master Landlord's consent
promptly following the parties' execution of this Sublease and Master
Landlord's form Consent to Sublease.
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IN WITNESS WHEREOF, Sublandlord and Subtenant have executed this Sublease
effective as of the date first hereinabove written.
SUBTENANT:
COOLEY GODWARD LLP, a
California limited liability partnership
By /s/ Kenneth J. Adelson
-------------------------------------
Kenneth J. Adelson
Partner-in Charge - San Francisco
SUBLANDLORD:
HS RESOURCES, INC., a
Delaware corporation
By /s/ James E. Duffy
-------------------------------------
Name: James E. Duffy
Title: CFO
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EXHIBIT A
A full and complete copy of the Master Lease is attached behind this page.
(Not included)
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EXHIBIT B
A sketch of Subleased Suite 1550 Premises is attached behind this page.
(Not included; the sketch shows that the cross-hatched portion of the fifteenth
floor (constituting approximately one-half of the floor space) is subject to the
Sublease.)
