Exhibit 10.28
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
XXXXX FARGO BANK, NATIONAL
ASSOCIATION
Real Estate Group (AU #0000)
000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxx
Loan No. 50330V
SUBORDINATION AGREEMENT; ACKNOWLEDGMENT OF LEASE ASSIGNMENT, ESTOPPEL,
ATTORNMENT AND NON-DISTURBANCE AGREEMENT
(Lease To Deed of Trust)
NOTICE: THIS SUBORDINATION AGREEMENT RESULTS IN YOUR SECURITY INTEREST IN THE
PROPERTY BECOMING SUBJECT TO AND OF LOWER PRIORITY THAN THE LIEN OF
SOME OTHER OR LATER SECURITY INSTRUMENT.
THIS SUBORDINATION AGREEMENT; ACKNOWLEDGEMENT OF LEASE ASSIGNMENT, ESTOPPEL,
ATTORNMENT AND NON-DISTURBANCE AGREEMENT ("Agreement") is made August 21, 1998
by and between ZORO, LLC, & California limited liability company ("Owner"),
VIANT CORPORATION, a California corporation ("Lessee") and XXXXX FARGO BANK,
NATIONAL ASSOCIATION ("Lender").
RECITALS
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A. Pursuant to the terms and provisions of a lease dated June 26, 1997,
and amended by the first amendment to office lease dated October 14,
1997 and the second amendment to office lease dated February 25, 1998
(collectively referred to as the "Lease"), Owner, as "Lessor", granted
to Lessee a leasehold estate in and to a portion of the property
described on Exhibit A attached hereto and incorporated herein by this
reference (which property, together with all improvements now or
hereafter located on the property, is defined as the "Property").
B. Owner has executed, or proposes to execute, a deed of trust with
absolute assignment of leases and rents security agreement and fixture
filing ("Dead of Trust") securing, among other things, a promissory
note ("Note" in the principal sum of FIFTY-FIVE MILLION FIVE HUNDRED
THOUSAND AND NO/100THS DOLLARS ($55,500,000.00), dated August 21, 1998,
in favor of Xxxxxx, which Note is payable with interest and upon the
terms and conditions described therein ("Loan"). The Deed of Trust is
to be recorded concurrently herewith.
C. As a condition to making the Loan secured by the Deed of Trust, Lender
requires that the Deed of Trust be unconditionally and at all times
remain a lien on the Property, prior and superior to all the rights of
Lessee under the Lease and that the Lessee specifically and
unconditionally subordinate the Lease to the lien of the Deed or Trust.
D. Owner and Xxxxxx have agreed to the subordination, attornment and other
agreements herein in favor of Xxxxxx.
Page 1 of 8
Loan No. 50330V
NOW THEREFORE, for valuable consideration and to induce Lender to make the Loan,
Owner and Xxxxxx hereby agree for the benefit of Xxxxxx as follows:
1. SUBORDINATION. Owner and Lessee hereby agree that:
1.1 PRIOR LIEN. The Deed of Trust securing the Note in favor of
Lender, and any modifications, renewals or extensions thereof,
shall unconditionally be and at all times remain and lien on the
Property prior and superior to the Lease;
1.2 SUBORDINATION. Xxxxxx would not make the Loan without this
agreement to subordinate; and
1.3 WHOLE AGREEMENT. This Agreement shall be the whole agreement and
only agreement with regard to the subordination of the Lease to
the lien of the Deed of Trust and shall supersede and cancel, but
only insofar as would affect the priority between the Deed of
Trust and the Lease, any prior agreements as to such
subordination, including, without limitation, those provisions, if
any, contained in the Lease which provide for the subordination of
the Lease to a deed or deeds of trust or to a mortgage o??
mortgages.
AND FURTHER, Xxxxxx individually declares, agrees and acknowledges for
the benefit of Xxxxxx, that:
1.4 USE OF PROCEEDS. Lender, in making disbursements pursuant to the
Note, the Deed of Trust or any loan agreements with respect to the
Property, is under no obligation or duty to, nor has Lender
represented that it will, see to the application of such proceeds
by the person or persons to whom Xxxxxx disburse?? such proceeds,
and any application or use of such proceeds for purposes other
than those provided for in such agreement or agreements shall not
defeat this agreement to subordinate in whole or in part;
1.5 WAIVER, RELINQUISHMENT AND SUBORDINATION. Lessee intentionally and
unconditionally waives relinquishes and subordinates all of
Xxxxxx's right, title and interest in and to the Property to the
lien o?? the Deed of Trust and understands that in reliance upon,
and in consideration of, this waiver relinquishment and
subordination, specific loans and advances are being and will be
made by Xxxxx?? and, as part and parcel thereof, specific monetary
and other obligations are being and will be entere?? into which
would not be made or entered into but for said reliance upon this
waiver, relinquishmen?? and subordination.
2. ASSIGNMENT. Xxxxxx acknowledges and consents to the assignment of the
Lease by Xxxxxx in favor o?? Lender.
3. ESTOPPEL. Xxxxxx acknowledges and represents that:
3.1 LEASE EFFECTIVE. The Lease has been duly executed and delivered by
Xxxxxx and, subject to the term and conditions thereof: (i) to
Lessee's current actual knowledge, the Lease is in full force and
effec?? (ii) the obligations of Lessee thereunder are valid and
binding; and (iii) there have been no modification or additions to
the Lease, written or oral;
3.2 NO DEFAULT. To Lessee's current actual knowledge, as of the date
hereof: (i) there exists no breaci?? default, or event or
condition which, with the giving of notice or the passage of time
or both, wou?? constitute a breach or default under the Lease; and
(ii) there are no existing claims, defenses or offse?? against
rental due or to become due under the Lease;
3.3 ENTIRE AGREEMENT. The Lease constitutes the entire agreement
between Lessor and Lessee wi?? respect to the Property and Xxxxxx
claims no rights with respect to the Property other than as set
for?? in the Lease; and
Page 2 of 8
Loan No. 5033C
3.4 NO PREPAID RENT. No deposits or prepayments of rent have been made
in connection with the Leas?? except as follows: (if none, state
"None") _____________________.
4. ADDITIONAL AGREEMENTS. Lessee covenants and agrees that, during all
such times as Xxxxxx is th?? Beneficiary under the Deed of Trust:
4.1 MODIFICATION, TERMINATION AND CANCELLATION. Lessee will not,
without Xxxxxx's prior written consent: (?? consent to any
modification or amendment relating to the Lease which changes a
material term of th?? Lease; (ii) terminate or cancel the Lease
(in whole or in part); or (iii) make any payment to Lessor i??
consideration of any modification, termination or cancellation of
the Lease (in whole or in part);
4.2 NOTICE OF DEFAULT. Lessee will notify Lender in writing
concurrently with any notice given to Lessor o?? any default by
Lessor under the Lease, and Xxxxxx agrees that Lender has the
right (but not th?? obligation) to cure any breach or default
specified in such notice within the time periods set forth?? below
and Xxxxxx will not declare a default of the Lease, as to Lender,
if Lender cures such defaul?? within fifteen (15) days from and
after the expiration of the time period provided in the Lease for
the cure thereof BY XXXXXX; PROVIDED, however, that if such
default cannot with diligence be cured by Lender within such
fifteen (15) day period, the commencement of action by Lender
within such fifteen (15) day period to remedy the same shall be
deemed sufficient so long as Lender pursues such cur?? with
diligence;
4.3 NO ADVANCE RENTS. Lessee will make no payments or prepayments of
rent more than one (1) month in advance of the time when the same
become due under the Lease; and
4.4 ASSIGNMENT OF RENTS. Upon receipt by Xxxxxx of written notice from
Lender that Xxxxxx has elected to terminate the license granted to
Lessor to collect rents, as provided in the Deed of Trust, and
directing the payment of rents by Lessee to Lender, Lessee shall
comply with such direction to pay and shall not be required to
determine whether Lessor is in default under the Loan and/or the
Deed of Trust. Owner agrees that any such payment to Lender shall
discharge the obligations of Lessee to make such payment to Owner
under the Lease.
5. ATTORNMENT. In the event Xxxxxx succeeds to the interest of Lessor
under the Lease, Xxxxxx agrees for the benefit of Xxxxxx (including for
this purpose any transferee of Lender or any transferee of Lessor's
title in and to the Property by Xxxxxx's exercise of the remedy of sale
by foreclosure under the Deed of Trust) as follows:
5.1 PAYMENT OF RENT. Lessee shall pay to Lender all rental payments
required to be made by Lessee pursuant to the terms of the Lease
for the duration of the term of the Lease;
5.2 CONTINUATION OF PERFORMANCE. Lessee shall be bound to Lender in
accordance with all of the provisions of the Lease for the balance
of the term thereof, and Lessee hereby attorns to Lender as its
landlord, such attornment to be effective and self-operative
without the execution of any further instrument immediately upon
Xxxxxx succeeding to Xxxxxx's interest in the Lease and giving
written notice thereof to Lessee;
5.3 NO OFFSET. Lender shall not be liable for, nor subject to, any
offsets or defenses which Lessee may have by reason of any act or
omission of Lessor under the Lease (except those acts or omissions
which constitute continuing defaults under the Lease including,
without limitation, failure to perform required maintenance and
repair, for which Lender, as successor to the interest of Lessor,
shall be liable), nor for the return of any sums which Lessee may
have paid to Lessor under the Lease as and for security deposits,
advance rentals or otherwise, except to the extent that such sums
are actually delivered by Lessor to Lender; and
Page 3 of 8
Loan No. 50330??
5.4 SUBSEQUENT TRANSFER. If Xxxxxx, by succeeding to the interest of
Lessor under the Lease, should become obligated to perform the
covenants of Lessor thereunder, then, upon any further transfer
o?? Lessor's interest by Xxxxxx, Lender shall have no liability
under the Lease after said transfer, except for those liabilities
accruing during Xxxxxx's ownership.
6. NON-DISTURBANCE. In the event of a foreclosure under the Deed of Trust,
so long as there shall then exist no breach, default, or event of
default on the part of Lessee under the Lease beyond applicable notice
and cure periods, Lender agrees for itself and its successors and
assigns that the leasehold interest of Lessee under the Lease shall not
be extinguished or terminated by reason of such foreclosure, but rather
the Lease shall continue in full force and effect and Lender shall
recognize and accept Lessee as tenant under the Lease subject to the
terms and provisions of the Lease except as modified by this AGREEMENT;
PROVIDED, however that Xxxxxx and Lender agree that the following
provisions of the Lease (if any) shall not be binding or Lender; any
option to purchase with respect to the Property; any right of first
refusal with respect to the Property; any provision regarding the use
of insurance proceeds or condemnation proceeds with respect to the
Property which is inconsistent with the terms of the Deed of Trust.
Subject to all the terms and provisions of this Agreement, in the event
Lender so succeeds to the interest of Xxxxxx or any successor to
Xxxxxx, Lender shall be liable for the performance of the Lessor under
the Lease and shall be bound by the terms of the Lease.
7. MISCELLANEOUS.
7.1 HEIRS, SUCCESSORS, ASSIGNS AND TRANSFEREES. The covenants herein
shall be binding upon, and inure to the benefit of, the heirs,
successors and assigns of the parties hereto; and
7.2 NOTICES. All notices or other communications required or permitted
to be given pursuant to the provisions hereof shall be deemed
served upon delivery or, if mailed, upon the first to occur of
receipor the expiration of three (3) days after deposit in United
States Postal Service, certified mail, postage prepaid and
addressed to the address of Lessee or Lender appearing below:
Page 4 of 8
Loan No. 50330
"OWNER" "LENDER"
ZORO, LLC, XXXXX FARGO BANK, NATIONAL ASSOCIATION
a California limited liability company Real Estate Group (AU #0000)
000 Xxxxx Xxxxxx, Xxxxx 000 000 Xxxxxxx Xxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx Attn: Xxxxxx Xxxxx
Loan No. 50330V
"LESSEE"
VIANT CORPORATION,
a California corporation
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
PROVIDED, HOWEVER, any party shall have the right to change its
address for notice hereunder by the giving of written notice
thereof to the other party in the manner set forth in this
Agreement; and
7.3 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of
which together shall constitute and be construed as one and the
same instrument; and
7.4 REMEDIES CUMULATIVE. All rights of Lender herein to collect rents
on behalf of Lessor under the Lease are cumulative and shall be in
addition to any and all other rights and remedies provided by law
and by other agreements between Lender and Lessor or others; and
7.5 PARAGRAPH HEADINGS. Paragraph headings in this Agreement are for
convenience only and are not to be construed as part of this
Agreement or in any way limiting or applying the provisions
hereof.
INCORPORATION. EXHIBIT A is attached hereto and incorporated herein by this
reference.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
NOTICE: THIS SUBORDINATION AGREEMENT CONTAINS A PROVISION WHICH ALLOWS THE
PERSON OBLIGATED ON YOUR REAL PROPERTY SECURITY TO OBTAIN A LOAN A
PORTION OF WHICH MAY BE EXPENDED FOR OTHER PURPOSES THAN IMPROVEMENT OF
THE LAND.
IT IS RECOMMENDED THAT, PRIOR TO THE EXECUTION OF THIS AGREEMENT, THE PARTIES
CONSULT WITH THEIR ATTORNEYS WITH RESPECT HERETO.
"OWNER"
ZORO, LLC,
a California limited liability company
BY:
------------------------------------
Xxxxxx X. Xxxxxx, Manager
Page 5 of 8
Loan No. 50330V
"LENDER"
XXXXX FARGO BANK,
NATIONAL ASSOCIATION
By:
-----------------------------------
Xxxxx X. Xxxxxxx
Its: Vice President
"LESSEE"
VIANT CORPORATION,
a California corporation
BY:
-----------------------------------
ITS:
----------------------------------
(ALL SIGNATURES MUST BE ACKNOWLEDGED)
Page 6 of 8
EXHIBIT A
Loan No. 50330V
DESCRIPTION OF PROPERTY
EXHIBIT A to Subordination Agreement; Acknowledgment of Lease Assignment,
Estoppel, Attornment and Non-Disturbance Agreement dated as of August 21, 1998,
executed by ZORO, LLC, a California limited liability company, as "Owner", VIANT
CORPORATION, a California corporation, as "Lessee", and XXXXX FARGO BANK,
NATIONAL ASSOCIATION, as "Lender".
All that certain real property located in the County of San Francisco, State of
California, described as follows:
APN Lot 9, Block 3783
PARCEL ONE
All of Lot 9, Assessor's Block 3783, as shown on that certain Map entitled,
"PARCEL MAP OF A PORTION OF 100 VARA BLOCK NO. 412, also being a portion of
Assessor's Block No. 3783 which Map was filed for record in the Office of the
Recorder of the City and County of San Francisco, State of California, on
November 29, 1988 in Book 38 of Parcel Maps, at page 36.
PARCEL TWO
Non-exclusive easements as set forth in that certain Grant of Easement with
Covenants and Restrictions affecting land dated as of December 29, 1988 by and
between Bay West Showplace Investors, a California Limited Partnership, and
Portman/Bay West Apparel partners, a California Partnership, recorded on
December 30, 1988 in Book E775 at Page 1598, Series No. E296406 in the Official
Records and as amended by that certain First Amendment to Grant of Easement with
Covenants and Restrictions affecting land dated as of June 19, 1998 by and
between Bay West Showplace Investors, a California Limited Partnership and Zoro,
LLC, a California limited liability company, recorded June 25, 1998 in Reel H162
at Image 0291, Series No. G376431 in the Official Records.
Page 7 of 8
STATE OF CALIFORNIA
COUNTY OF____________________ as.
On this _____ day of ________________, 19__, before me,
_________________________________________________ a Notary Public in and for the
State of California, personally appeared ___________________________________
personally known to me (or proved 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
Signature
----------------------------------------
My commission expires
----------------------------
STATE OF CALIFORNIA
COUNTY OF ss.
------------------------------------
On this ____ day of ___________________, 19__, before me,
_________________________________________________ a Notary Public in and for the
State of California, personally appeared
__________________________________________________ personally known to me (or
proved 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
Signature
----------------------------------------
My commission expires
----------------------------
STATE OF CALIFORNIA
COUNTY OF ss.
------------------------------------
On this _____ day of __________________, 19__, before me,
__________________________________________________ a Notary Public in and for
the State of California, personally appeared
_________________________________________ personally known to me (or proved 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
Signature
----------------------------------------
My commission expires
----------------------------
Page 8 of 8
10 ALTERATIONS AND IMPROVEMENTS. Lessee shall not make or allow to be made
any alterations or physical additions in or to the premises without he
prior written consent of Lessor. Any and all such alterations or
improvements shall be surrendered to Lessor upon the termination of
this lease, ?? or time or otherwise: provided, however, that this
clause shall not apply to moveable equipment, trade fixtures or
furnitures or Lessee which may be removed by Lessee upon the expiration
or earlier termination of this lease if Lessee is not then in default.
11. LIENS. Lessee shall keep the land and building of which the premises
are a part free from any liens arising out of any work performed,
materials furnished or obligations incurred by Xxxxxx. Lessor shall
have the right to post and keep posted on the premises any notices that
may be provided by law or which Lessor may deem to be proper for the
protection of Lessor from such liens.
12. RULES AND REGULATIONS. The rules and regulations attached hereto, as
well as such rules and regulations as may be hereafter adopted by
Lessor for the safety, care and cleanliness or the premises and the
preservation of good order therein, are hereby expressly made a part
hereof, and Xxxxxx agrees to comply with them. Lessor shall not be
responsible to Lessee for the non-performance by any other tenant or
occupant of the building or any of said rules and regulations. The
violation of any such rules and regulations shall be deemed a material
breach of the lease by Lessee Moreover, Lessee shall pay any damages
Lessor or other tenants of the building may suffer as a result of any
violation of said rules and regulations by as employees, agents,
invitees, contractors, suppliers or customers.
13. ASSIGNMENT OF SUBLEASE. Lessee shall not assign, transfer, mortgage,
pledge, hypothecate or encumber this lease or any interest therein,
directly or indirectly, and shall not sublet the premises of any part
thereof, or allow any use thereof by license or otherwise, without the
prior written consent of Lessor. Any attempt to do so without such
consent shall be void and shall, at Lessor's option, terminate this
lease. No consent by Lessor to any assignment or subletting by Lessee
shall relieve Lessee of any obligation to be performed by Lessee under
this lease, whether occurring before or after such consent, assignment
or subletting. The consent by Lessor to any assignment or subletting or
other transfer shall not relieve Xxxxxx from the obligation to obtain
Xxxxxx's written consent to any other assignment or subletting and
consent to 1 assignment, subletting or other transfer shall not be
deemed to constitute consent to any subsequent assignment, subletting
or other transfer. The acceptance of rent by Lessor from any other
person shall not be deemed to be a waiver by Lessor of any provision of
this lease or to be a consent to any assignment, subletting or other
transfer.
14. INSURANCE. Lessee shall obtain and maintain, at all times during the
term hereof, at its own cost, commercial general liability insurance of
at least $1,000,000.00 The aforementioned policies shall in no event
limit the liability of Lessee hereunder. The aforementioned insurance
shall name Lessor as an additional insured. Said insurance shall be
with companies having a rating of not less than A in "Best's Insurance
Guide" Lessee shall furnish from the insurance companies or cause the
insurance companies to furnish certificates of coverage. No policy
shall be cancellable or subject to reduction of coverage or other
modification or cancellation except after 30 days prior written notice
to Lessor by the insurer. All such policies shall be written as primary
policies, not contributing with and not in excess of the coverage which
Lessor may carry Lessee shall, at least 20 days prior to the expiration
of such policies, furnish Lessor with renewals or binders. Xxxxxx
agrees that if Xxxxxx does not take out and maintain such insurance.
Lessor may, at its option, procure said insurance on Xxxxxx's behalf
and charge Xxxxxx the premiums therefore together with a 25% handling
charge, payable upon demand. Lessee shall have the right to provide
such insurance coverage pursuant to blanket policies obtained by Lessee
provided such blanket policies expressly afford coverage to the
premises and to Lessee as required hereunder.
15. FIRE AND CASUALTY DAMAGE. If the premises shall be partially or totally
destroyed by fire or other casualty so as to render them untenantable,
the rent herein shall be prorated until the premises are made
tenantable by Lessor. If Xxxxxx shall decide not to rebuild, then all
rent owed to the time of such destruction or termination shall be paid
by Lessee and this lease shall cease and terminate.
16. CONDEMNATION. If the premises shall be taken or condemned in, whole or
in substantial part for public purposes, this lease shall, at the
option of either party, forthwith cease and terminate, and Lessee shall
have no claim against Lessor for the value of any unexpired term of
this lease or otherwise except for Xxxxxx's loss of good will, moving
and relocation expenses, if any, designated for Lessee.
17. LOSS OR DAMAGE. Lessor shall not be liable to Lessee for any injury or
damage that may result to any person or property by or from any cause
whatsoever in or about the land and building of which the premises are
a part, unless caused by Xxxxxx's negligence of intentional conduct.
18. BANKRUPTCY BY XXXXXX. If (i) voluntary bankruptcy proceedings are
initiated by (Lessee, ii) Lessee is adjudged a bankrupt, (iii) Lessee
makes an assignment for the benefit of its creditors, (iv) the
execution is issued against Lessee or (v) the interest of Lessee
hereunder passes by operation or law to any person other than Lessee,
this lease may, at Lessor's option, be terminated.
19. DEFAULT. (a) If Lessee breaches any of the terms and conditions hereof,
Lessor may, at its option subject to applicable legal due process, (i)
enter and take possession of the premises, (ii) remove all persons and
property therefrom and (iii) declare this lease terminated. In such
event, Lessee shall peacefully and quietly surrender the premises to
Lessor and execute such instruments as Lessor may require to evidence
termination of Lessee's rights and interest hereunder; and Lessor shall
be entitled to recover from Lessee the aggregate of all amounts Lessor
is permitted to recover from Lessee pursuant to Section 1951.2 of the
California Civil Code, as amended, including without limitation, (i)
the worth at the time of award of the unpaid rent which had been earned
at the time of termination, (ii) the worth at the time of award of the
amount by which the unpaid rent which would have been earned after
termination until the time of award exceeds the amount of such rental
loss that Lessee proves could have been reasonably avoided, (iii) the
worth at the time or award of the amount by which the unpaid rent for
the balance of the term after the time of award exceeds the amount of
such rental loss that Xxxxxx proves could have been reasonably avoided
and (iv) all costs associated with relating efforts, including without
limitation, Lessor's overhead, legal fees, commissions and improvement
costs. The "worth at the time of award" of the amounts referred to in
clauses (i) and (ii) above shall be computed by allowing interest at
the maximum rate permitted by law. The "worth at the time of award" of
the amount referred to in clauses (i) and (ii) above clause (iii) 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 1%.
(b) Unless and until Lessor elects to terminate Xxxxxx's right of
possession hereunder. Lessor may enforce all of its rights and remedies
under this lease and section 1951.4 of the California Civil Code, as
amended, including without limitation, the right to recover the rent
and all other charges, if any, as they become due hereunder. Actions of
maintenance or preservation and efforts to relet the premises shall not
constitute a termination or Xxxxxx's right to possession.
(c) The rights and remedies herein conferred upon Lessor are not
intended to be exclusive and are in addition to any other rights and
remedies if may have now or hereafter by law, equity or statute.
20. LESSOR'S RIGHT OF ENTRY. Lessor or its agents may enter the premises at
all reasonable hours to inspect, clean, repair, alter or make additions
thereto or to adjacent space, or for any other lawful purpose,
including without limitation, showing the premises to prospective
purchasers, tenants or lenders. For each of the aforesaid purposes,
Lessor shall retain a key with which to unlock all of the doors in the
premises. Lessor may use any and all means which it deems proper to
open said doors in an emergency and any entry to the premises obtained
by any of said means shall not, under any circumstances, be construed
or deemed to be a forcible or unlawful entry into, or a detainer of,
the premises, or an eviction of Lessee from the premises or any portion
thereof.
21. SUBORDINATION. This lease, at Lessor's option, shall be subject and
subordinate to the lien of any mortgages or deeds of trust in any
amount or amounts whatsoever now
or hereafter placed on or against the land or building of which the
premises are a part without the necessity of the execution and delivery
of any further instruments on the part of Lessee to effectuate such
subordination. Lessee shall attorn to the purchaser upon any
foreclosure or trust deed sale and recognize such purchaser as the
Lessor under this lease.
22. ESTOPPEL CERTIFICATES. Lessee shall execute, acknowledge and deliver to
Lessor at any time within 10 days after request by Lessor, a statement
in writing certifying, if such be the case, 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 modified,
the dates on which rent has been paid and such other information as
Lessor shall reasonably request. If additional documents are reasonably
required by Lessor for this or other purposes. Lessee shall cooperate
in the preparation thereof.
24. WAIVER. No term or condition hereof or the breach thereof shall be
deemed waived, except by written consent of the party against whom the
waiver is claimed, and any waiver or the breach of any term or
condition shall not be deemed to be a waiver of any preceding or
succeeding breach of the same or any other term or condition.
Acceptance by Lessor of any performance by Xxxxxx after the time the
same shall have become due shall not constitute a waiver by Lessor or
the breach or default unless otherwise expressly agreed to by Lessor in
writing.
25. LATE CHARGES. If the payment of any amount due hereunder is not
received by Lessor on or before the due date thereof, said payment
shall be in default and a late charge of 5% of the defaulted payment
shall also become due and payable as additional rent. Thereafter, said
pass due amount together with the late charge described herein shall
bear interest at the maximum rate permitted by law.
26. ATTORNEY'S FEES. If either party shall seek the aid of an attorney for
relief against the other hereunder, including any suit by Xxxxxx for
the recovery of rent or possession of the premises, the losing party
shall pay the prevailing party all the costs and expenses thereby
incurred, including without limitation, attorney's fees, discovery
costs, witness fees and court costs. If applicable, whether or not an
action is initiated or prosecute to judgment.
27. HOLD HARMLESS. Lessee shall indemnify and hold harmless lessor, its
agents and employees from and against any and all claims, damages,
losses and expenses, including without limitation, attorney's fees and
costs of any kind whatsoever arising out of or resulting from, directly
or indirectly, any act or omission of Lessee, its agents or employees.
28. HOLDOVER. Any holding over by Lessee after the expiration of this
lease, without Xxxxxx's consent, shall be deemed to be a tenancy from
month-to-month on all of the terms and conditions set forth herein, to
the extend not inconsistent with a month-to-month tenancy: provided
however, the rent for such holdover period shall be an amount equal to
the rent due for the last month of the lease term.
29. SURRENDER OF PREMISES. Upon the expiration or earlier termination of
this lease, Xxxxxx shall surrender the premises and all alterations,
additions and improvements thereto in the same condition and
configuration as received, ordinary wear and test alone excepted. Any
damage of the type described in the rules and regulations attached
hereto shall be deemed excessive. If Xxxxxx fails to so surrender the
premises. Lessee shall pay to Lessor, upon demand, the estimated cost
of repairs and the rental value of the premises for the time reasonably
estimated to make said repairs. The wall repair component of said
estimate, if any, shall reflect the charges necessary to replace
damaged panels in accordance with manufacturer's specifications and
procedures. Lessee shall further indemnify Lessor against any loss or
liability resulting, from delay by Xxxxxx in so surrendering the
premises, including without limitation, any claims made by succeeding
tenants founded on such failure.
30. NOTICES. All notices which are required to be given by either party to
the other hereunder shall be in writing and shall be deemed to have
been given when they are (i) addressed as shown below, or to such other
addresses as either party may specify in writing, (ii) stamped and
(iii) deposited the United States mail.
31. AUTHORITY. If Lessee signs as a corporation, partnership or joint
venture, such of the persons executing this lease on behalf of lessee
does hereby covenant and warrant that (i) Lessee is a duly authorized
and existing entity, (ii) Lessee has and is qualified to do business in
California, (iii) the entity has full right and authority to enter into
this lease and (iv) each person signing on behalf of the entity is
authorized to do so.
32. CONSENT. Where required, the consent of either party hereunder shall
not be unreasonably withheld.
33. JOINT AND SEVERAL LIABILITY. Each person or entity signing as Lessee
hereunder shall be jointly and severally liable for the obligations of
Lessee herein.
34. MISCELLANEOUS. This lease shall be construed in accordance with the law
of the State of California. In the event that one or more of the
provisions or paragraphs of this lease is determined to be a illegal
and unenforceable, the remainder of this lease shall not be affected
thereby and each remaining provision or portion thereof shall continue
to be valid and effective and shall be enforceable to the fullest
extent permitted by law. Xxxxxx has reviewed this lease, and has had a
full opportunity to consult any attorney of its choice in this regard,
and accordingly, the normal rule of construction to the effect that
ambiguities are to be resolved against the drafting party shall not be
employed in the interpretation of this lease.
35. ENTIRE UNDERSTANDING. This agreement represents the entire
understanding of Lessor and Xxxxxx and supersedes all prior written or
oral agreements relative to the subject matter hereof.
Dated
------------------------------------
Lessee Lessor
Genuine Internet Inc. Harvard Investment Company
--------------------- --------------------------
000 Xxxxxxxx Xxxx., Xxxxx 310 000 Xxxxxxxx Xxxx., Xxxxx 200
----------------------------- -----------------------------
(address) (address)
Redwood City, CA 94063 Redwood City, CA 94063
---------------------- ----------------------
(city, state, zip code) (city, state, zip code)
By By
---------------------------- ---------------------------
Xxxx Xxxxxxxxx Xxxx X. Xxxxxx
----------------------------------
(individual)
Rules and Regulations
1. Lessee shall not any way deface the premises or any part thereof.
2. Lessor will direct workers as to where and how all computer,
communication and telephone equipment is to be installed. No boring or
cutting for wires or equipment will be allowed without the prior
written consent of Lessor.
3. No unusual furniture, freight, packages, suppliers, equipment or
merchandise of any kind shall be brought into the building without the
prior written consent of Lessor and all moving of the same into or out
of the building shall be done at such a time and in such manner as
Lessor shall designate.
4. Lessee shall specify that all deliveries be made at the near of the
building only. Under no circumstances are deliveries to be made or
receive at or through the front of the building. There shall not be
used in the building any hand trucks except those equipped with rubber
tires and side guards. In no event shall hand trucks be used on or
about the front stairs or lobby of the building.
5. Lessee shall not overload the floor of the premises, Lessor shall have
the right to prescribe the weight, size and position of all heavy
objects brought into the building and also the times and manner of
moving the same in and out of the building Lessor will not be
responsible for loss of or damage to any such property from any cause
and all damage done to the building by moving or maintaining such
property shall be repaired at the expense of Lessee.
6. Before leaving each day, Xxxxxx shall see that the doors of the
premises and building are securely locked.
7. Cars are to park in property marked spaces only. Under no circumstances
are cars to (i) back in, (ii) park in spaces reserved for other
tenants, (iii) park in driveways, (iv) park in front of entrances to
the building, (v) park in unmarked areas or (vi) park in loading zones
except while loading or unloading. All motorcycles, mopeds and bicycles
are to park only in the area designated for them. Lessor shall have the
right to cause improperly parked vehicles to be lowed at the owner's
expense. In addition,
8. Lessee shall use protective pads at all desks, coffee machines and copy
machines and maintain the premises in a clean and orderly manner at all
times.
9. No sign, placard, picture, advertisement, name or notice shall be
inscribed, displayed, printed or affixed to any part of the outside or
inside of the building or the premises without the prior written
consent of Lessor and Lessor shall have the right to remove any such
item without notice to and at the expense of Xxxxxx.
10. The sidewalks, halls, exits, entrances and stairways shall not be
obstructed or used for any purpose other than for ingress and egress.
The halls. exits, entrances, stairways and roof are not for the use of
the general public and Lessor shall in all cases retain the right to
control and prevent access thereto by all persons whose presence, in
the judgment of Xxxxxx, shall be prejudicial to the safety, character,
reputation and interests of the building.
11. Lessor will furnish Lessee 2 keys to Xxxxxx's entry door. Lessor shall
make a reasonable charge for any additional keys. Lessee shall not have
any such keys copied. Upon the expiration or earlier termination of
this lease. Lessee shall deliver to Lessor all keys to doors in the
building. Lessee shall not after any lock or install any new or
additional locks or any bolts on any door of the premises without the
written consent of Lessor.
12. The bathrooms, urinals and washbowls shall be used only for the purpose
for which they were constructed and no foreign substance of any kind
shall be thrown therein.
13. Lessee shall not employ any person other than Xxxxxx's janitor for the
purpose of cleaning the premises without the prior written consent of
Xxxxxx. Except with the written consent of Lessor, no persons other
than those approved by Lessor shall be permitted to enter the building
for the purpose of cleaning the same. Lessee shall not cause any
unnecessary labor by reason of Xxxxxx's carelessness or indifference in
the preservation of good order and cleanliness. Lessor shall in no way
be responsible to Lessee for any loss of property on the premises,
however occurring, or for any damage done to the effects of any tenant
by the janitor or any other employee or any other person, janitor
service shall include ordinary dusting and
cleaning and shall not include cleaning of carpets of rugs, except
normal vacuuming, or moving of furniture and other special services,
janitor service will not be furnished on nights when rooms are occupied
after 9:30 p.m.
14. Lessee shall not (i) permit or suffer the premises to be occupied or
used in a manner offensive or objectionable to Lessor or other
occupants of the building, (ii) use the premises for manufacturing,
maintenance, repair or for the storage of merchandise except as such
storage may be incidental so the use of the premises for general office
purposes or (iii) use the premises for commercial cooking, lodging,
sleeping or any illegal purpose.
15. Lessee shall not use or keep in the premises any hazardous waste,
toxic, flammable, explosive or noxious substance, except for standard
off supplies food, animal or bird.
16. No vending machine of any kind shall be installed, maintained or
operated in the premises without the prior written consent of Lessor.
17. On Saturdays, Sundays, legal holidays and other days between the hours
of 5:00 p.m. and 9:00 a.m. the following day, access to the building or
to the premises may be refused unless the person seeking access is
known to the person or employee of the building in charge has a pass or
is properly identified. The Lessor shall in no case be liable for
damages for any error with regard to the admission to or exclusion from
the building of any person. In case of invasion, not, public excitement
or other commotion, Lessor reserves the right to prevent access to the
building for the safety of the building and its tenants.
18. Lessee shall not disturb, solicit or canvass any other tenants of the
building and shall cooperate to prevent same.
19. If Lessee desires a music system, the system available through Lessor
shall be used and a separate charge will be assessed for same.
21. If Lessee wishes to maintain a coffee machine or like device in the
premises, a timer must be connected to the outlet into which said
machine is connected to prevent same from being left on.
22. No air conditioner, heater or similar appliance shall be used without
the prior written consent of Lessor.
FIRST ADDENDUM TO STANDARD FORM OFFICE LEASE
--------------------------------------------
THIS FIRST ADDENDUM TO LEASE (this "Addendum") is made by and between
HARVARD INVESTMENT COMPANY, a ________________ ("Lessor"). and GENUINE INTERNET
INC., a California corporation ("Lessee"), to be a part of that certain Standard
Form Office Lease of even date herewith between Lessor and Lessee (the "Lease
Form) concerning approximately 6.370 rentable square feet of premises
("Premises"), within the building ("Building") known as the Peninsula Corporate
Center located at 000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxx Xxxx, Xxxxxxxxxx
(the "Project"). Xxxxxx and Xxxxxx agree that, notwithstanding anything to the
contrary in the Lease, the Lease is hereby modified and supplemented as set
forth below.
1. DEFINITIONS. Unless otherwise defined in this Addendum, all the
terms used in this Addendum shall have the same meaning and definition given
them in the Lease Form. As used in this Addendum, the term "Lease Form" shall
mean the printed lease form, together with all exhibits and attachments thereto,
to which this Addendum is attached. As used herein, the term "Lease" shall mean
the Lease Form, this Addendum, and all other addenda, exhibits, and attachments
to the Lease Form referred to in the Lease Form or in this Addendum.
2. COMMENCEMENT DATE. The term of the Lease shall commence (the
"Commencement Date") on the later of (i) June 1, 1996 or (ii) the date by which
all of the following have occurred: (a) Lessor has delivered possession of the
Premises to Lessee in the condition required by this Lease; and (b) Lessor has
obtained all approvals and permits from the appropriate governmental authorities
required for the legal occupancy of the Premises for Xxxxxx's intended use. If
the Commencement Date has not occurred for any reason whatsoever on or before
June 15, 1996, then Lessee may terminate the Lease at any time thereafter until
the Commencement Date has occurred by written notice to Lessor, whereupon any
monies previously paid by Lessee to Lessor shall be reimbursed to Lessee.
3. OPERATING EXPENSES. Lessee shall have no obligation to pay any
operating or other expenses incurred by Lessor with respect to the Project,
including, without limitation, real property taxes and any property insurance
charges applicable to the Project.
4. SECURITY DEPOSIT. Within thirty (30) days after the expiration or
earlier termination of the Lease term and after Xxxxxx has vacated the Premises.
Lessor shall return to Lessee the entire security deposit except for amounts
that Lessor has deducted therefrom that are needed by Lessor to cure defaults of
Lessee under the Lease or compensate Lessor for damages for which Lessee is
liable pursuant to this Lease.
5. COMPLIANCE WITH LAWS. At the Commencement Date, the Premises and
the Project shall conform to all requirements of covenants, conditions,
restrictions and encumbrances ("CC&R's"), all underwriter's requirements, and
all rules, regulations, statutes, ordinances, laws and building codes,
(collectively, "Laws") applicable thereto. Tenant shall not be required to
construct or pay the cost of complying with any CC&R's. underwriter's
requirements or Laws requiring construction of improvements in the Premises
which are properly capitalized under general accounting principles, unless such
compliance is necessitated solely because of Tenant's particular use of the
Premises.
6. REPAIRS AND MAINTENANCE. Lessor shall perform and construct, and
Lessee shall have no responsibility to perform or construct, any repair,
maintenance or improvements (i) necessitated by the acts or omissions of Lessor
or any other occupant of the Building, or their respective agents, employees or
contractors, (ii) occasioned by fire, acts of God or other casualty or by the
exercise of the power of eminent domain. (iii) required as a consequence of any
violation of any laws or construction defects in the Premises or the Building as
of the Commencement Date. (iv) for which Xxxxxx has a right of reimbursement
from others. (v) which could be treated as a "capital expenditure" under
generally accepted accounting principles. (vi) to the heating, ventilating, air
conditioning, electrical, water, sewer, and plumbing systems serving the
Premises and the Building, and (vii) to any portion of the Building or Project
outside of the demising walls of the Premises.
7. ASSIGNMENT AND SUBLETTING. Lessee may, without Xxxxxx's prior
written consent,
sublet the Premises or assign the Lease to (i) a subsidiary, affiliate, division
or corporation controlling, controlled by or under common control with Lessee:
(ii) a successor corporation related to Lessee by merger, consolidation,
nonbankruptcy reorganization, or government action; or (iii) a purchaser of
substantially all of Lessee's assets located in the Premises.
8. INDEMNITY AND INSURANCE. Lessor shall not be released or
indemnified from, and shall indemnify, defend, protect and hold harmless Lessee
from, all losses, damages, liabilities, judgments, actions, claims, attorneys'
fees, consultants' fees, payments, costs and expenses arising from the
negligence or willful misconduct of Lessor or its agents, contractors, licensees
or invitees, Lessor's violation of any Law, order or regulation, or a breach of
Lessor's obligations or representations under the Lease.
9. WAIVER OF SUBROGATION. The parties hereto release each other and
their respective agents, employees, successors, assignees and sublessees from
all liability for injury to any person or damage to any property that is caused
by or results from a risk which is actually insured against, which is required
to be insured against under the Lease, or which would normally be covered by the
standard form of full replacement value "all risk-extended
coverage" casualty insurance, without regard to the negligence or willful
misconduct of the entity so released. All of Lessor's and Xxxxxx's repair and
indemnity obligations under the Lease shall be subject to the waiver contained
in this paragraph.
10. DAMAGE, CONDEMNATION. If the Premises are condemned or damaged by
any peril and Lessor does not elect to terminate the Lease or is not entitled to
terminate the Lease pursuant to its terms, then Lessee shall have the option to
terminate the Lease if the Premises cannot be, or are not in fact, fully
restored by Lessor to their prior condition within ninety (90) days after the
condemnation or damage.
11. NOTICES. Any notice required under the Lease that is sent by mail
shall be deemed received, if properly addressed, three (3) business days after
any such notice is deposited in the United States mail certified.
postage-prepaid, return-receipt requested.
12. DEFAULT AND LATE CHARGE. Lessee shall not be in breach or default,
not shall any late charge be imposed, on account of Xxxxxx's failure to (i) pay
money to Lessor, unless Xxxxxx's failure to pay continues for five (5) days
after Xxxxxx's actual receipt of written notice of the delinquency, or (ii)
perform any other covenant of the Lease, unless such failure to perform
continues for a period of thirty (30) days after Lessee's actual receipt of
written notice of such failure or such longer time as may reasonably be required
to cure the default. Lessee shall not be in breach or default of the Lease
solely because it abandons or vacates the Premises. or as a consequence of the
filing of an involuntary bankruptcy petition, the appointment of a receiver, the
attachment of any interest in the Lease or of Xxxxxx's other assets or the
exercise by any third party of any other remedy with respect to Xxxxxx. Xxxxxx's
interest in the Lease or Xxxxxx's other assets, unless the petition, receiver,
attachment or other remedy is not discharged within sixty (60) days.
13. SURRENDER. Xxxxxx's obligations with respect to the surrender of
the Premises shall be fulfilled if Xxxxxx surrenders possession of the Premises
in the condition existing at the Commencement Date, ordinary wear and tear, acts
of God, casualties, condemnation. Hazardous Materials (other than those released
or emitted by Lessee), and alternations or other interior improvements which
Xxxxxx states in writing may be surrendered at the termination of the Lease,
excepted.
14. BROKERAGE COMMISSIONS. Lessor shall be responsible for the payment
of all real estate brokerage commissions arising from the execution of the
Lease.
15. ENVIRONMENTAL. To the best knowledge of Lessor, (i) no Hazardous
Material is present on the Project or the soil, surface water or groundwater
thereof, (ii) no underground storage tanks are present on the Project, and (iii)
no action, proceeding or claim is pending or threatened regarding the Project
concerning any Hazardous Material or pursuant to any environmental law. Under no
circumstance shall Lessee be liable for, and Lessor shall indemnify, defend and
hold harmless Lessee, its agents, contractors, stockholders, directors,
successors, representatives, and assigns from and against, all losses, costs,
claims, liabilities and damages (including attorney's and consultants' fees) of
every type and nature, directly or indirectly arising out of or in connection
with any Hazardous Material present at any time on or about the Project, or the
soil, air, improvements, groundwater or surface water thereof, or the violation
of any laws, orders or regulations, relating to any such Hazardous Material,
except to the extent that any of the foregoing actually results from the release
or emission of Hazardous Material, by Lessee or its agents or employees in
violation of applicable environmental laws. As used in this Addendum, "Hazardous
Material" shall mean any material which is now or hereafter regulated by any
governmental authority or which poses a hazard to the environment or human life.
16. APPROVALS. Whenever the Lease requires an approval, consent,
designation, determination, selection or judgment by either Lessor or Lessee,
such approval, consent, designation, determination, selection or judgment and
any conditions imposed thereby shall be reasonable and shall not be unreasonably
withheld or delayed and, in exercising any right or remedy hereunder, each party
shall at all times act reasonably and in good faith.
17. REASONABLE EXPENDITURES. Any expenditure by a party permitted or
required
under the Lease, for which such party is entitled to demand and does demand
reimbursement from the other party, shall be limited to the fair market value of
the goods and services involved, shall be reasonably incurred, and shall be
substantiated by documentary evidence available for inspection and review by the
other party or its representative during normal business hours.
18. NAME CHANGE. Lessor understands and acknowledges that Xxxxxx has
filed for a legal name change from Genuine Internet, Inc. to Silicon Valley
Internet Partners. As soon as Lessor is notified in writing that such name
change is legally effective, the name of Lessor under this Lease shall
thereafter be deemed to be Silicon Valley Internet Partners, and such name
change shall be self-operative without the execution of any further instruments
on the part of either Lessor or Lessee.
19. LANDLORD'S ENTRY OF PREMISES. Lessor and Lessor's agents, except
in the case of emergency and regularly scheduled services, shall provide Lessee
with twenty-four (24) hours' notice prior to entry of the
-2-
Premises. Any such entry by Lessor and Lessor's agents shall comply with all
reasonable security measures of Xxxxxx and shall not impair Xxxxxx's operations
more than reasonably necessary. During any such entry. Lessor and Xxxxxx's
agents shall at all times be accompanied by Xxxxxx.
20. PARKING. Without charge. Lessee shall have the non-exclusive use
of not less than __________, __, parking spaces on the Project. Lessor shall in
no event oversubscribe parking.
21. EFFECT OF ADDENDUM. All terms with initial capital letters used
herein as defined terms shall have the meanings ascribed to them in the Lease
unless specifically defined herein. In the event of any inconsistency between
this Addendum and the Lease, the terms of this Addendum shall prevail.
In witness whereof, said parties hereunto subscribe their names.
Lessor: Lessee:
HARVARD INVESTMENT COMPANY GENUINE INTERNET INC.
By By
------------------------ --------------------
Name Name
---------------------- ------------------
Its Its
----------------------- -------------------
-3-
Standard Form Office Lease
Made and entered into at REDWOOD CITY, California, between HARVARD INVESTMENT
COMPANY ("Lessor") and GENUINE INTERNET INC. ("Lessee").
1. PREMISES. (a) In consideration of the rent herein provided and the
terms and conditions hereof, Lessor hereby leases to Lessee those
certain premises, more particularly described in Exhibit "A" attached
hereto, situated in Peninsula Corporate Center located at 000 Xxxxxxxx
Xxxx., Xxxxx 000, Xxxxxxx Xxxx, Xxxxxxxxxx. (b) Rentable area on each
floor of the building is determined by measuring from the center of the
outer walls enclosing the premises to the center of the opposite outer
wall. Rentable area shall not include areas, if any, used for typical
tower building stairs, fire towers, elevator shafts, flues, vents
stacks. pipe shafts, vertical ducts, janitor closets and building
equipment rooms. Rentable area on partially occupied floors shall be
determined as above, but shall include only a proportionate share of
the common areas and shall be measured from the center of the outer
wall to the center of party walls and/ or hallway partitions.
The number of square feet of rentable area comprising the premises
shall be approximately 6370 sq. ft..
2. TERM. Subject to the terms and conditions set forth herein, the term of
this lease shall commence on June 1, 1996 and shall end on May 31, 1997
unless sooner terminated as hereinafter provided.
3. RENT. (a) Xxxxxx agrees to pay to Lessor, as a monthly rent for the
premises, during the term hereof, the sum of $12,740.00 Such monthly
rent shall be due and payable advance each month on the first day of
the month and shall be payable to Lessor at the address shown below.
The first monthly installment shall be due and payable on the date of
execution of this lease by Xxxxxx, 3) and a like monthly installment
shall be due on or before the first day of each subsequent month during
the term hereof. Should this lease commence on a day other than the
first of the month, the rent for such partial month shall be prorated.
(c) At the end of each calendar year, Lessee shall pay to Lessor, as
additional rent, Xxxxxx's pro-rata share of the amount. If any, by
which operating expenses for said calendar year exceed $4.00 per square
foot of rentable area. As used herein, the term "operating expenses"
shall mean all costs of management operation and maintenance of the
land and building of which the premises are a part, including without
limitation, management office rental value, the cost of all capital
improvements required by any governmental authority or made by Lessor
to maintain operations, employee wages and overhead expenses, equipment
and tools, insurance, janitorial services, landscaping, maintenance and
repairs, materials and supplies, scavenger, security services and
utilities.
4. SECURITY DEPOSIT. Upon execution hereof, Lessee shall deposit with
Lessor the sum of $19,110.00. Said sum shall be held by Xxxxxx as
security for the faithful performance by Xxxxxx of all the terms and
conditions of this lease. If Lessee defaults with respect to any
provision of this lease, including without limitation, the provisions
relating to the payment of rent, Lessor may, at its option, apply or
retain as much of said deposit as is necessary to compensate Lessor for
the damages caused by Xxxxxx's default. If any portion of said deposit
is so used or applied. Lessee shall, 1) demand therefore, deposit cash
with Lessor in an amount sufficient to restore said deposit to its
original amount and Xxxxxx's failure to do so shall be a material
breach of this lease. Lessor shall not be required to keep this deposit
separate from its general funds and Lessee shall not be entitled to
interest on said deposit. If Lessee shall fully and faithfully perform
every provision of this lease to be performed by it, the deposit or any
balance thereof shall be returned to Lessee at the expiration of the
lease term. In the event of termination of Xxxxxx's interest in this
lease. Lessor shall transfer said deposit to Xxxxxx's successor in
interest.
5. USE. Lessee shall use the premises for general office 2) purposes only
and in strict compliance with the rules and regulations attached
hereto. Lessee shall conduct its business, insofar as the same relates
to Xxxxxx's use of the premises, in a lawful
manner and in strict compliance with all governmental laws, rules,
regulations and orders applicable to the use by Lessee of the premises.
Lessee shall, at its sole cost and expense. promptly comply with all
laws, statutes, ordinances and governmental rules, regulations, orders
or requirements now in force or which may hereafter be in force and
with the requirements of any board of fire underwriters of other
similar body now or hereafter constituted relating to or affecting the
condition or use of the premises. Lessee shall not do or permit
anything to be done in or about the premises not bring or keep anything
therein which will in any way increase fire or casualty insurance rates
or interfere with the rights of other tenants or occupants of the
building or injure or enemy them, nor shall Lessee cause, maintain or
permit any nuisance in or about the premises. Lessee shall not commit
or suffer to be committed any waste in or about the premises.
6. OCCUPANT LOAD. Notwithstanding anything to the contrary contained
herein, Lessee shall not permit the premises to be occupied by more
than 35 full-time, on-site employees.
7. EQUIPMENT. No equipment, other than that described in Exhibit "B"
attached hereto, shall be used in the premises without the prior
written consent of Lessor. Lessor does not guarantee that the
building's air conditioning will be adequate to service Lessee's
equipment needs. If auxiliary air conditioning is necessary, the cost
of purchase, installation, maintenance and operation thereof shall be
paid by Lessee upon demand.
8. BUILDING SERVICES. (a) Lessor shall provide Lessee water, sewer and
waste pick-up utilities and facilities, electricity and HVAC for normal
operations, 8 a.m. to 6 p.m. Monday through Friday, janitorial service
Monday through Friday, building lighting replacement, restroom
supplies, window washing with reasonable frequency Any additional usage
or service required by Lessee must be arranged with Lessor and shall be
subject to an additional charge. Lessor shall not be liable for, and
Xxxxxx shall not be entitled to, any abatement or reduction of rent by
reason of Xxxxxx's failure to furnish any of the foregoing when such
failure is caused by accidents, breakage, repairs, strikes, lockouts,
labor disturbances, o f any other cause, similar or dissimilar, beyond
the reasonable control of Lessor, Lessor shall not be liable under any
circumstances for loss of or injury to property, however occurring,
through or in connection with or incidental to the failure to furnish
any of the foregoing.
(b) Whenever heat generating machines, equipment or lighting are used
in the premises which affect the temperature otherwise maintained by
the air conditioning system, Lessor reserves the right to install
supplementary air conditioning for the premises and the cost of
purchase, installation, maintenance and operation thereof shall be paid
by Lessee upon, demand.
9. MAINTENANCE AND REPAIRS. By accepting occupancy, Lessee shall be deemed
to have agreed that the premises are in (i) a clean and sanitary
condition, (ii) good state or repair and (iii) a condition suitable for
Lessee's use. Lessee shall maintain the premises and every part thereof
in said condition. If Lessee fails to so maintain the premises, Lessor
may, at its option, perform such acts and expend such funds, at the
expense of Lessee, as are reasonably required to so maintain or repair
the premises. Any amount so expended by Lessor shall be paid by Xxxxxx
upon demand. Lessor shall have no liability to Lessee for any damage,
inconvenience or interference with the use of the premises by Xxxxxx as
a result of performing any such work. Lessor shall maintain the
building and every part thereof in a good state of repair.
(1) within ten (10) days after its receipt of a written
(2) administration, Sales, training and distribution
(3) and shall constitute rent for the first full month of the Lease
term.
