Exhibit 10.37
TEMPORARY LEASE FOR OFFICE SPACE AT RIVER EAST PLAZA
River East Plaza, L.L.C., a Delaware corporation, (hereinafter referred to as
"Landlord"), as the owner of a commercial building commonly known as River East
Plaza (the "Building"), does hereby lease to Viant Corporation (hereinafter
referred to as "Tenant") and Tenant hereby agrees to accept a temporary office
lease in River East Plaza ("Lease"). The temporary office space shall be located
in Suite 650 as designated on Exhibit A attached hereto (said space shall
hereinafter be referred to as the "Premises"). The Lease for the temporary
office space shall be subject to all the terms and conditions contained herein.
In consideration of the mutual covenants contained herein, Landlord and Tenant
agree as follows:
(1.) Landlord hereby agrees to provide temporary office space to Tenant on
the earlier of (i) September 1, 1999 or (ii) beneficial occupancy of the
Premises, but in no event later than October 1, 1999 ("Commencement Date"), thru
February 29, 2000. After February 20, 2000 the temporary office space shall
continue on a month-to-month basis until terminated by either party as provided
below. Tenant and Landlord shall each have the right, by written notice given to
the other to terminate this Lease effective Thirty (30) days after the date of
such notice. In the event such right to terminate is exercised by either party,
neither party shall have any further liability to the other hereunder or any
other liability for loss or damage resulting from such termination. Tenant shall
be obligated to pay all Rent and perform all other obligations of Tenant as
provided in this Lease up to and including the date on which this Lease so
terminates.
(2.) The Premises shall be used for general office purposes, and for no
other purposes whatsoever without Landlord's prior written consent, which
consent Landlord may withhold in its absolute discretion.
(3.) Beginning on the Commencement Date of the Lease, Tenant covenants and
agrees to pay Landlord, River East Plaza, L.L.C., a Delaware corporation, 000
Xxxx Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000, or to such other
person or at such other place as Landlord shall designate in writing to Tenant
from time to time, in legal tender of the United States, Base Rent in an amount
equal to six thousand four hundred and seventy-one dollars and twenty-five cents
($6,471.25) per month. Tenant shall pay Base Rent on the first day of each
calendar month during the Term of the Lease. In the event this Lease is
terminated on any day other than the last day of the month, the Base Rent for
said month shall be prorated on a per diem basis and Landlord shall refund the
excess Base Rent paid by Tenant within thirty (30) days of the date on which the
Lease terminates. Base Rent hereunder is fully serviced. Tenant shall not be
required to pay any operating expenses, taxes or other charges under the Lease.
(4.) Landlord shall be responsible for normal cleaning of the Premises.
(5.) Tenant shall be required to make its own arrangements for such
telephone and electrical service in the Premises as may be desired by Tenant.
Tenant shall pay all charges, including but not limited to the cost of
installation of necessary wiring, conduits and equipment.
(6.) All amounts due Landlord under the terms of this Lease are referred
to collectively as "Rent." All Rent shall be paid by Tenant when due without any
set off, deduction or prior demand, and without Landlord's submission of any
statements, bills or notices therefore.
(7.) If Rent or any portion thereof is not paid on the due date, Tenant
agrees to pay a late charge equal 1.5% of the amount of Rent then due, and an
additional 1.5% for each fifteen (15) day period, or portion thereafter, in
which Rent remains unpaid. Such late charges shall be in addition to Landlord's
other rights upon default by Tenant.
(8.) Tenant's covenant to pay Rent shall be independent of every other
covenant set forth in the Lease. the obligations of Tenant to pay Rent for all
periods accruing prior to the termination of this Lease, shall survive the
termination of the Lease.
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(9.) Tenant agrees that any payment by Tenant or acceptance by Landlord of
a lesser amount than shall be due from Tenant shall be treated as a payment on
account of the earliest stipulated Rent then due and payable. The acceptance by
Landlord of check for a lesser amount with an endorsement or statement thereon,
or upon any letter accompanying such check, that such lesser amount is payment
in full shall be of no effect, and Landlord may accept such check without
prejudices to any other rights or remedies which Landlord may have against
Tenant.
(10.) Except to the extent of the gross negligence or willful misconduct
of Landlord or its agents, contractors and invitees, Tenant agrees to indemnify
and save Landlord, Landlord's beneficiaries and their respective agents,
harmless and indemnified from all liability, injury, loss, cost, damage and/or
expense (including reasonable attorneys' fees and expense) in respect of any
injury to, or death of, any person, and/or damage to, or loss or destruction of
any property occasioned by: (i) any act or omission of Tenant, Tenant's
employees, sublessees, concessionaires, licensees, agents, invitees or anyone
claiming by, through or under Tenant; (ii) the use, occupancy, conduct,
operation or management of the Premises by Tenant or any of its customers,
agents, contractors servants, employees, licensees, suppliers, materialmen or
invitees; (iii) the use of the Building, the common areas, the property or any
portion thereof, or any areas in the vicinity of the property by Tenant or any
of its agents, contractors, servants, employees, licensees, suppliers,
materialmen, or invitees; (iv) any work or thing whatsoever done or not done on
the Premises; or (v) any breach or default in performing any of the obligations
under the provisions of this Lease and/or applicable law by Tenant or any of its
agents, contractors, servants, employees, licensees, suppliers or materialmen
during this Lease; all regardless of whether such claim, etc., is asserted
before or after the expiration of this Lease or any earlier termination of this
Lease. The foregoing covenants shall survive the expiration of this Lease or
earlier termination of the Lease.
(11.) (a) Tenant, at Tenant's expense, shall maintain in force with
responsible companies and in amounts from time to time approved or requested by
Landlord:
i) public liability insurance, insuring Landlord, Landlord's beneficiaries
and their respective agents, and Tenant, as their interests may appear, against
all claims, demands for actions for injury to or death of any one person and for
injury or death of more than one person in any one occurrence and for damage to
property made by or on behalf of any persons, in any one occurrence and for
damage to property made by or on behalf of any persons, firm or corporation,
arising from, related to, or connected with the conduct and operation of
Tenant's business in the Premises and the businesses of all of Tenant's
sublessees, concessionaires and licensees;
ii) contractual liability insurance covering the indemnity set forth in
this Lease;
iii) fire insurance with extended coverage endorsements including, but not
limited to, theft, vandalism and malicious mischief, covering all of Tenant's
trade fixtures, furniture, furnishings and floor coverings in the Premises to
the extent of at least 100% of their replacement cost;
iv) Workmen's Compensation Insurance, if required by Law, in amounts
required by applicable statutes.
b) All insurance shall be in a form reasonably satisfactory to
Landlord, shall be primary and non-contributory, shall not be subject to
deductible(s) of more than $1,000.00, and shall provide that it will not be
subject to cancellation, termination or change except after thirty (30) days,
prior written notice to Landlord. The policies or duly executed certificates for
the same (which shall evidence the insurer's waiver of subrogation) together
with satisfactory evidence of the payment of the premiums thereon shall be
deposited with Landlord on or before ten (10) days prior to Tenant's occupation
of the Premises and, upon renewals of such policies, not less than 30 days prior
to expiration of the term of the coverage being renewed. If Tenant fails to
comply with such requirements, Landlord may obtain such insurance and keep the
same in effect, and Tenant shall pay Landlord the premium cost thereof upon
demand. In no event will Tenant be allowed to take possession of the Premises
until Tenant has deposited with Landlord a certificate of insurance evidencing
Tenant's purchase of the required insurance. Landlord shall maintain "all risk"
property insurance covering the Building for at least (80%) eighty percent of
the replacement cost therefore.
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(c) Notwithstanding anything to the contrary in the Lease, each
party hereto hereby waives all claims for recovery from the other party for any
loss or damage to any of its property insured under valid and collectible
insurance policies or required to be insured against under this Lease, subject
to the limitation that this waiver shall apply only when it is either permitted
by or, by the use of such good faith efforts (including the payment of a
reasonable additional premium) could have been so permitted by the applicable
policy of insurance. The parties hereto further agree to use good faith efforts
to have any and all fire, extended coverages or any and all material damage
insurance which may be carried endorsed with the following subrogation clause:
"This insurance shall not be invalidated should the insured waive in writing
prior to a loss any or all right of recovery against any party for loss
occurring to the property described herein.
(d) All of Tenant's property which may at any time be in the
Premises shall be there at Tenant sole risk. Tenant agrees that Landlord shall
not be responsible for any damage to or theft of any property left in said
Premises. Tenant at its sole cost and expense shall acquire the insurance
covering the property located in the Premises.
(12.) Tenant agrees that except to the extent of the gross negligence or
willful misconduct of Landlord or its agents, contractors or invitees, to the
extent permitted by law, Landlord, and Landlord's beneficiaries, their agents
and employees, shall not be liable for, and Tenant waives all claims for, damage
to person or property sustained by Tenant or any person claiming through Tenant
resulting from any accident or occurrence in or upon the Premises or the
Building of which they shall be a part, or any other part of the Landlord's
property, including, but not limited to, claims for damage resulting from: (i)
any equipment or appurtenances becoming out of repair; (ii) the Landlord's
failure to keep said Building or the Premises in repair; (iii) injury done or
occasioned by wind, water, or other natural element; (iv) any defect in or
failure of plumbing, heating or air conditioning equipment, electric wiring or
installation thereof, gas, water, and steam pipes, stairs, porches, railings or
walks; (v) broken glass; (vi) the backing up of any sewer pipe or downspout;
(vii) the bursting, leaking or running of any tank, tub, washstand, water
closet, waste pipe, drain or any other pipe or tank in, upon or about such
Building or Premises; (viii) the escape of steam or hot water; (ix) water, snow
or ice being upon or coming through the roof, skylight, trap door, stairs, walks
or any other place upon or near such Building or the Premises or otherwise; (x)
the falling of any fixture, plaster or stucco; and (xi) any act, omission or
negligence of co-tenants, or of other persons or occupants of said Building or
of adjoining or contiguous buildings, or of owners of adjacent or contiguous
property, other than Landlord, Landlord's beneficiaries, their agents,
employees, contractors or invitees.
(13.) Landlord grants to Tenant, its employees, agents, customers and
invitees, the non-exclusive right to use those portions of the property from
time to time designated by landlord as common areas, subject to all of the
terms, covenants and conditions contained in this Lease. Notwithstanding the
foregoing, Tenant understands and agrees that nothing contained in this Lease,
nor the designation by Landlord of any portions of the property as part of the
common areas shall be deemed to impose on Landlord any duty or obligation to
acquire, designate or make available to Tenant or others any specific portions
of the property as common areas or to continue to make any certain common areas
available.
(14.) Landlord shall have the right at all times during the Term to enter
the Premises for the purpose of inspecting the same and of making such repairs
or replacements therein as may be required by this Lease or as Landlord may deem
necessary or desirable, including without limitation, a substantial
rehabilitation of the Premises or the Building, its systems, or the exterior and
structural components thereof, provided, however, that Landlord shall use all
reasonable efforts not to disturb Tenant's use and occupancy and shall, when
practical, give Tenant reasonable prior notice of such entry, repairs and
rehabilitation. Notwithstanding anything contained herein to the contrary,
Landlord shall have the right to enter the Premises without providing notice to
the Tenant, in cases of emergency.
(15.) Tenant agrees that all signage located in the Premises shall be
subject to the express written approval of Landlord, which approval may be
withheld in Landlord's sole and absolute discretion. Landlord shall have the
right to remove any signage installed by Tenant, if Tenant failed to obtain
Landlord's written approval of said signage.
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(16.) a) Affirmative Covenants. Tenant shall:
i) Keep the Premises, including without limitation the fixtures, and
all other facilities, systems and equipment installed in the Premises by Tenant,
clean, neat and safe and in good order, repair and condition (including without
limitation all necessary replacements, painting and decorating), provided,
however, Landlord shall maintain the glass in the Building and the structural
portions of the Building (including, without limitation, the HVAC (but excluding
heat pumps)).
ii) Before leaving the Premises unattended, close and securely lock
all doors.
iii) Comply with all reasonable rules and regulations Landlord may
adopt from time to time for the protection and welfare of the Building and its
tenants and occupants, and comply with all laws, ordinances, orders and
regulations and with the directions of any public officer authorized by law and
with respect to the Premises, Building or the property and the use and occupancy
thereof.
In no event, however, will Tenant be required to construct capital
improvements in the Premises costing in excess of $5,000 to comply with laws
unless the requirement is caused by Tenant's particular use of the Premises.
iv) Tenant shall operate its business in the Premises at all times
in a business like and reputable manner, so as to help establish and maintain a
good reputation for the Building;
v) Keep all mechanical devices in the Premises free of vibration and
noise which may be transmitted beyond the Premises.
vi) Keep the Premises in sanitary condition, free of insects,
rodents, vermin and other pests.
vii) Replace promptly all glass which may become damaged or broken
with glass of the same quality but excepting damage by fire or other casualty
covered by Landlord's insurance.
viii) Promptly repair, at Tenant's sole cost and expense, any damage
to the common areas or any other portion of the property caused by the act or
neglect of Tenant, its employees, agents, sublessees, customers or invitees.
ix) Accept delivery of and ship goods form the Premises only in the
manner and at such times and in such areas as may be designated by Landlord an
conform to all rules and regulations adopted by Landlord with respect thereto,
including but not limited to security arrangements with respect to shipping and
receiving areas and the transport of goods to and from the Premises. Tenant
agrees that Tenant shall be solely responsible for the Security of Tenant's
goods and merchandise in the Premises and elsewhere on the property, including
but not limited to all goods in, on or about any shipping and receiving areas,
in any trucks, cars or other vehicles located in such areas, or in the process
of being transferred to or from such areas. LANDLORD, ITS AGENTS AND EMPLOYEES
ARE NOT AUTHORIZED TO AND SHALL NOT ACCEPT ANY RESPONSIBILITY FOR AND SHALL NOT
BE LIABLE FOR THE SAFETY OR SECURITY OF ANY OF TENANT'S GOODS AT ANY TIME
WHEREVER LOCATED.
x) Store all trash and garbage in adequate containers within the
Premises which Tenant shall maintain in a neat and clean condition so as not to
be visible to members of the public, and so as not to create any health or fire
hazard. Tenant shall not burn any trash or garbage at any time in or about the
property and Tenant shall, at Tenant's expense, attend to the daily disposal
thereof in the dumpster or other container designated by Landlord. If, by reason
of special disposal requirements caused by the operations of Tenant on the
Premises, Landlord shall be required to provide any services or facilities for
such pickup, Tenant shall be obligated to use the same and shall pay a
proportionate share (based on volume of use) of the actual cost thereof within
10 days after being billed therefor.
xi) Provide Landlord with a key to all doors, security screens or
gates and any other security alarm devices and/or systems installed by Tenant in
the Premises. Tenant is responsible for the cost of all keying.
b) Negative Covenants. Tenant shall not:
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i) Paint, display, inscribe or affix any sign, trademark, picture,
advertisement, notice, lettering or direction on any part of the outside of the
Building or anywhere on the property, or locate any fixtures, equipment,
inventory, signs, placards or any other kind of advertising material outside of
the Premises, without the prior written consent of Landlord.
ii) Exhibit, sell or offer for sale, use, rent or exchange in the
Premises any article, not ordinarily embraced within the use of the Premises
specified in this Lease, or occupy or use the Premises or permit the Premises to
be occupied or used for any purpose not within the Permitted Uses as set forth
in the Schedule.
iii) Occupy or use the Premises or permit the Premises to be
occupied or used for any purpose, act or thing which is in violation of any
public law, ordinance or governmental regulation or which may be dangerous to
persons or property, or which may invalidate or increase the amount of premiums
for any policy of insurance carried on the property or covering its operation or
violate the terms thereof, provided, however, that if any additional amounts of
insurance premiums are caused by Tenant's occupancy or use of the Premises,
Tenant shall pay to Landlord said additional amounts.
iv) Do or permit anything to be done on or in the Premises, or bring
or keep anything therein or in a manner which is a violation of rules,
regulations or requirements of the local fire department, the Illinois
Inspection and Rating Bureau, Fire Insurance Rating Organization, or any other
similar authority having jurisdiction over the Building.
v) Use the Premises for housing accommodations, for lodging or
sleeping purposes or for any immoral or illegal purposes.
vi) Install or operate any refrigerating, heating or air
conditioning apparatus without the prior written permission of Landlord.
vii) Place any radio or television antenna on the roof or on or in
any part of the inside or outside of the Building other than the inside of the
Premises; operate or permit to be operated any musical or sound producing
instrument or device inside or outside the Premises which may be heard outside
the Premises; or operate any electrical device from which may emanate electrical
waves which may interfere with or impair radio or television broadcasting or
reception from or on the property or elsewhere.
(viii) Bring or permit to be in the Building any dog (except in the
company of a blind person) or other animal, make or permit any objectionable
noise or odor to emanate from the Premises; do anything therein tending to
create, or maintain, a nuisance, disturb, solicit or canvas any occupant of the
Building or do any act tending to injure the reputation of the Building.
(ix) Allow anything to remain in, place or store anything in, or
obstruct in any way, any passageway, exit or stairway. Tenant shall lend its
full cooperation to keep such areas free from all obstruction and in a clean and
sightly condition and move all supplies, furniture and equipment as soon as
received directly to the Premises and move all such items and waste other than
waste customarily removed by employees of the Landlord.
(x) Overload any floors or electrical wiring; operate or permit to
be placed in the Premises any coin or token operated vending machine or similar
device for the sale of any merchandise, food, beverages, candy, cigarettes or
other commodities or services except for sale to Tenant's employees.
(xi) Use any advertising medium such as flashing lights, search
lights, loud speakers, phonographs, sound amplifiers or radio or television
receiving equipment in a manner to be seen or heard outside of the Premises.
(xii) Do or permit anything to be done on or in the Premises, which
in any way may, in Landlord's sole judgement, create a nuisance in the common
areas, disturb any other tenant of the Building or the occupants of neighboring
property, or injure the reputation of the Building, or exhibit displays in the
store windows of the Premises which, in Landlord's sole judgement, are not
consistent with a first-class office Building.
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(xiii) At any time do or permit the manufacture of any spirituous,
fermented, intoxicating or alcoholic beverages; permit the cooking of food or
the use of any food or beverage heating devices (including, but not limited to,
coffee makers, hot plates or microwave ovens) in a manner which would pose a
threat to the safety of persons in the Premises or the Building.
(xiv) Allow any objectionable or obnoxious odor, steam, vapor, water
or noise to emanate from the Premises. If Tenant fails or refuses to prevent
such emanation, Landlord may notify Tenant to correct such condition, and if
Tenant shall not commence such correction within twenty-four (24) hours
following the giving of such notice and adequately complete such correction
within a reasonable time thereafter, Landlord may effect such correction
(including, but not limited to, requiring that Tenant cease to conduct all or a
portion of Tenant's business in the Premises) without liability to Tenant for
any loss or damage that may accrue to Tenant's business by reason thereof, and
Tenant shall pay to Landlord the costs of such correction upon demand without
such payment limiting or being deemed a waiver by Landlord of any other rights
or remedies available to Landlord by law or under the terms of this Lease.
(xv) Suffer any mechanic's or other lien, charge or encumbrance to
be filed against the Premises or Tenant's leasehold estate therein or any
portion of the property or any income therefrom by reason of any work, labor,
services or materials performed at or furnished to the Premises by, on behalf of
or for Tenant, or for anyone holding the Premises through or under Tenant. If
any such lien shall at any time be filed, Tenant shall forthwith cause the same
to be discharged of record by payment, bond, order of a court of competent
jurisdiction or otherwise, and provide to Landlord evidence of the discharge
thereof; provided, however, that if Tenant, in good faith, desires to contest
any such lien, Tenant may do so if (A) such contest will operate to prevent any
foreclosure by the lien claimant against the property during the pendency of
such contest and (B) Tenant provides to Landlord a bond or other security
satisfactory to Landlord in an amount equal to at least one hundred percent
(100%) of the total amount of such lien(s). If Tenant shall fail to cause any
such lien to be discharged within 10 days after filing thereof, or if Tenant is
entitled to and notifies Landlord that Tenant intends to contest the same as
above provided but fails to provide or maintain the security which Tenant is
obligated to provide to Landlord, or if Tenant's contest is unsuccessful and
Tenant fails to promptly discharge such lien, in addition to any other right or
remedy of Landlord, Landlord may collect, as liquidating damages, two percent
(2%) of the Lien amount for each day the Tenant fails to discharge or bond over
said Lien, plus any expenses incurred by Landlord as a result of the filing of
said Lien, or Landlord may, but shall not be obligated to, discharge the same by
paying the amount claimed to be due or by bonding or other proceeding deemed
appropriate by Landlord, and the amount so paid by Landlord all costs and
expenses, including reasonable attorneys' fees and court costs, incurred by
Landlord in procuring the discharge of such lien plus interest thereon at the
rate of 3% over the prime rate of interest being charged by the LaSalle National
Bank as of the date of such payment shall be due and payable by Tenant to
Landlord as Additional Rent on the first day of the following month.
NOTHING CONTAINED IN THIS LEASE SHALL BE CONSTRUED AS A CONSENT BY LANDLORD TO
SUBJECT LANDLORD'S ESTATE IN THE BUILDING TO ANY LIEN OR LIABILITY UNDER THE
MECHANIC'S LIEN LAW OF THE STATE OF ILLINOIS OR OTHERWISE.
xvi) Conduct or permit any "going-out-of-business",
"lost-our-lease", bankruptcy, fire, auction or other distress sales in the
Premises.
(17.) Landlord shall have the right, upon providing written notice to the
Tenant, to terminate this Lease in the event Tenant fails to pay the Monthly
Rental on or before the tenth (10th) day of the month, effective immediately
upon Tenant's receipt of the Landlord's termination notice.
In the event such right to terminate is exercised, neither party
shall have any further liability to the other hereunder or any other liability
for the loss or damage resulting from such termination. Tenant shall be
obligated to pay all Rent and perform all other obligations of Tenant as
provided in this Lease up to and including the date on which this Lease so
terminates.
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(18.) Upon termination of this Lease, for whatever reason, Tenant shall
immediately remove Tenant's property from the Premises and deliver possession of
the Premises to Landlord, in good order, repair and condition but excepting
damage by fire or unavoidable casualty (except Tenant's actions causing fire
and/or casualty) and ordinary wear and tear. Tenant hereby grants to Landlord
full and free license to enter into the Premises in such event with or without
process of law, and to repossess Landlord of the Premises as of Landlord's
former estate, and to expel or remove Tenant and, at Tenant's expense, any and
all property therefrom, using such force as may be necessary, without being
deemed in any manner guilty of trespass, eviction, forcible entry or detainer,
or conversion of property, and without relinquishing Landlord's rights to Rent
or any other rights given to Landlord hereunder or by law. In the event Tenant
fails to remove its property within fifteen (15) days of receiving Landlord's
termination notice, any and all property of Tenant which may be removed from the
Premises by Landlord pursuant to the authority of the Lease or by law may be
handled, removed or stored in a commercial warehouse or otherwise by Landlord,
at the risk, cost and expense of Tenant, and Landlord shall in no event be
responsible for the value, preservation or safekeeping thereof. Tenant shall pay
to Landlord, upon demand, any and all expenses incurred in such removal and all
storage charges against such property, for so long as the same shall be in
Landlord's possession or under Landlord's control. Any such property of Tenant
not removed from the storage space when required, or any of Tenant's property
removed from the storage space by Landlord and stored which is not retaken from
storage by Tenant within thirty (30) days, shall be conclusively deemed to have
been forever abandoned by Tenant, and Landlord may dispose of the same in such
manner as Landlord shall choose, but such disposal shall not relieve Tenant of
the obligation to reimburse Landlord for the cost of removal, storage and
disposition of such property.
(19.) [Intentionally deleted].
(20.) Tenant acknowledges that it is taking the space "as is" and that
Landlord shall not be obligated to make any improvements or undertake any
construction to render the Premises suitable for occupancy by Tenant. Tenant
hereby acknowledges that (i) it has been afforded full and adequate opportunity
to inspect the Premises; (ii) it is familiar with and accepts the condition of
the same; (iii) Tenant shall be solely responsible for all work necessary to
make the Premises ready for Tenant's occupancy; and (iv) Landlord has not agreed
to make any changes, additions or alterations in or to the Premises, or to
perform any work therein.
No work shall be performed on the Premises until Landlord, in its
reasonable discretion, has approved all plans for the Premises submitted by
Tenant, and Tenant has provided Landlord with proof that Tenant has obtained
"Builder's Risk" insurance in an amount sufficient to cover the cost of Tenant's
improvements/alterations to the Premises, if such insurance is required by
Landlord in its sole and absolute discretion.
(21.) All rights and remedies herein contained and reserved to Landlord
shall not be considered as exclusive of any other rights or remedies of Landlord
but shall be construed as cumulative and shall be in addition to every other
remedy now or hereafter existing at law, in equity or by statute.
(22.) The Non-Prevailing Party shall pay all of the Prevailing Party's
costs, charges and expenses, including the fees of counsel, agents and other
retained by the Prevailing Party, incurred in enforcing or seeking to enforce
the Prevailing Party's rights and remedies under this Lease. Both Parties agree
that either Party may, from time to time, file suit to recover any sums falling
due under the terms of this Lease.
(23.) No consent of waiver, expressed or implied, by Landlord to or of any
breach of any covenant, condition or duty of Tenant under this Lease shall be
construed as a consent or waiver to or of any other breach of the same or any
other covenant, condition or duty hereunder.
(24.) Tenant shall not sell, assign, mortgage, pledge or in any manner
transfer this Lease or Tenant's rights hereunder, sublet the Premises or any
part thereof, grant any license to use the Premises or allow any transfer or use
thereof by anyone other than Tenant, or permit any lien upon Tenant's interest
by operation of law, without in each case the prior written consent of Landlord,
which consent may be withheld in the sole and absolute discretion of Landlord.
Tenant may, however, allow its clients and contractor's to use portions of
the Premises from time to time in the ordinary course of Tenant's business
without Landlord's prior written consent.
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(25.) In every case when, under the provisions of this Lease, it shall be
necessary or desirable for Tenant to serve any notice or demand on Landlord,
such notice or demand shall be in writing and shall be served by Registered or
Certified Mail, return receipt requested, addressed to Landlord as follows:
MCL Management Corporation
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
until otherwise directed by notice from Landlord to Tenant.
In every case when, under the provisions of this Lease it shall be
necessary or desirable for Landlord to serve any notice or demand said notice or
demand shall be in writing and shall be served personally on Tenant at the
Premises (delivery to the office manager or the person representing that he or
she is in charge of the Premises at the time of delivery of such notice shall be
considered delivery to Tenant), or posted on the Premises, with a copy sent by
Registered or certified Mail, addressed to Tenant as follows:
Viant Corporation
Lincoln Plaza
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xx. Xxxxxx Xxxxxxx
until otherwise directed by notice from Tenant to Landlord.
Delivery of any such notice by Registered or Certified Mail shall be
deemed effective three (3) days after mailing of such notice, properly addressed
and with adequate postage prepaid, to the United State Postal Service.
(26.) Subject to the provisions of this Lease, Landlord covenants that
Tenant, on paying the Rent and performing the covenants of this Lease on its
parts to be performed, shall and may peaceably and quietly have, hold and enjoy
the Premises for the Term.
(27.) Landlord does not warrant that Tenant's occupancy will be free from
interruptions caused by repairs, renewals, improvements, changes or service,
alterations, strikes, lockouts, labor controversies, accidents, inability to
obtain fuel, steam, water or supplies or other causes. No such interruption of
service shall be deemed an eviction or disturbance of Tenant's use and
possession of the Premises or any part thereof or render Landlord liable to
Tenant for damages by abatement of Rent or otherwise or relieve Tenant from
performance of Tenant's obligations under this Lease. Tenant hereby waives and
releases all claims against Landlord for damages, both direct and consequential,
for any such interruptions or stoppages of services. To the extent Landlord
provides any services, Landlord may at any time cease to furnish such services,
provided Tenant is connected at Landlord's expense to an alternate source of
such services.
(28.) In the event the Premises is damaged or destroyed by fire or any
other casualty, or if the Premises, the Building or any portion of the property
is taken by any governmental or municipal authority, or by any public utility or
other entity having powers or eminent domain, this Lease shall terminate as of
the date of the incident or taking. Tenant further agrees that Tenant shall have
no recourse against Landlord as a result of damage due to a fire or any other
peril. Nor will Tenant have any claim on any compensation payable in connection
with any taking.
(29.) Tenant acknowledges that there is no lock on door to the Premises
and that Tenant, at its sole cost and expense, shall pay for the installation of
said lock which Landlord, in its sole discretion, shall have the right to
install as provided in paragraph 15(a)(xi). Tenant further agrees that all items
stored by Tenant in the Premises shall be stored at Tenant's sole risk and that
Landlord shall have no liability whatsoever for any item stored by Tenant in the
Premises.
9
(30.) In no event will Tenant be allowed to store any chemicals, waste
materials, flammable chemicals/materials, or any other item that Landlord, in
its sole and absolute discretion, considers dangerous or hazardous.
(31.) All negotiations, considerations, representations and understandings
between Landlord and Tenant are incorporated herein. NO ACT OR OMISSION OR
COURSE OF PRIOR DEALING OR ORAL STATEMENTS OF LANDLORD, ITS BENEFICIARIES OR
THEIR AGENTS OR THEIR EMPLOYEES SHALL ALTER, CHANGE OR MODIFY AND OF THE
PROVISIONS HEREOF. This Lease contains the entire agreement of the parties and
may not be modified except by an instrument in writing signed by both Landlord
and Tenant. All prior communications from Landlord with respect to estimated
charges payable by Tenant hereunder are for information only, and they are not
to be construed as a representation or warranty of the actual charges which
Tenant is or may be required to pay hereunder, or as binding upon Landlord in
any manner whatsoever unless specifically provided to the contrary herein.
(32.) The parties executing this Lease hereby represent and warrant that
they are the duly authorized and acting representatives of Landlord and Tenant
respectively and that by their execution of this Lease, it became the binding
obligation of Landlord and Tenant respectively, subject to no contingencies or
conditions except as specifically provided herein. If the Tenant is a
corporation, the parties executing this lease on behalf of Tenant further
represent and warrant that all necessary corporate action has been taken to
authorize the execution of this Lease by the person(s) executing the same on
behalf of Tenant. A certified copy of the resolutions of Tenant's Board of
Directors authorizing the same shall be provided to Landlord concurrently with
or prior to the execution of this Lease by Tenant.
(33.) No receipt of money by or on behalf of Landlord from Tenant after
the termination of this Lease, the service of any notice, the commencement of
any suit or entry of final judgment for possession shall reinstate, continue or
extend the Terms or affect any such notice, demand, suit, or judgment.
(34.) This Lease shall be construed in accordance with and governed by the
Laws of the State of Illinois. If any provision of this Lease or application to
any party or circumstances shall be determined by any court of competent
jurisdiction to be invalid and unenforceable to any extent, the remainder of
this Lease shall not be affected thereby except as may be necessary to make the
remaining provisions consistent with each other after the invalid or
unenforceable provisions are deleted, and each provision thereof shall be valid
and shall be enforced to the fullest extent permitted by law.
(35.) Tenant represents that it has dealt only with Landlord and that no
broker other than JSQ, Inc., and Xxxxxxxxx X. Xxxxxx and Company participated in
the negotiation of this Lease, submitted or showed the Premises to Tenant, or is
or may be entitled to any commission in connection with this Lease by virtue of
having assisted Tenant in any way in connection with this lease. Tenant agrees
to indemnify, defend, and hold Landlord harmless from and against any and all
claims of any brokers claiming through Tenant and any and all costs and expenses
incurred by Landlord, Landlord's beneficiaries or Landlord's agents in defending
against any such claims. As used in this paragraph, "broker" shall include any
finders or other persons who may be entitled to a commission or fee as a result
of the execution of this Lease, and "commissions" shall include finders fees or
other charges of any kind due or claimed to be due to any broker in connection
with this Lease.
(36.) Nothing contained herein shall be deemed or construed by the parties
hereto nor by any third party as creating the relationship of principal and
agent or of partnership or of joint venture between the parties hereto, it being
understood and agreed that neither the method of computation of Rent nor any
other provision contained herein shall be deemed to create any relationship
between the parties other than the relationship of Landlord and Tenant. Whenever
herein the singular number is used, the same shall include the plural, and the
neuter gender shall include the masculine and feminine genders.
(37.) Tenant hereby acknowledges and expressly agrees that any liability
or obligation of Landlord shall be limited to its interest in the property, and
no officer, director or shareholder of Landlord shall be individually or
personally liable for any claim arising out of this Lease. Tenant further
acknowledges and agrees that the Landlord's agent(s),
10
including, but not limited to, the managing agent(s) for River East Plaza and
all employees of said agent(s), shall have no personal or individual liability
for any claim arising out of this Lease.
(38.) This Lease shall bind and inure to the benefit of the parties hereto
and their permitted heirs, executors, successors and assigns and shall also
inure to the benefit of those persons who may be beneficiaries from time to time
of Landlord or any land trust under which title to the Premises is held.
(39.) Landlord shall have no security interest or lien on any item of
Tenant's trade fixtures, furniture, equipment and other movable personal
property. Landlord waives any right of distraint, distress for rent or
Landlord's lien that may arise at law.
ALL EXHIBITS AND RIDERS ATTACHED TO THIS LEASE SHALL BE DEEMED TO BE A PART
HEREOF AND ARE INCORPORATED HEREIN BY REFERENCE.
IN WITNESS WHEREOF, this instrument has been duly executed by the parties
hereto, as of this 30 day of August, 1999.
LANDLORD: TENANT:
River East Plaza, L.L.C. Viant Corporation
A California Corporation
By: /s/ [Illegible] By: /s/ Xxxxxx Xxxxxxx
------------------------ ---------------------------
Its: Exec VP Its: CFO
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rev/7-99
EXHIBIT A
[GRAPHIC OMITTED]
[FURNITURE PLAN]
