Exhibit 10.23
FIRST ADDENDUM TO LEASE
THIS FIRST ADDENDUM TO LEASE ("Addendum") is dated for reference
purposes as of April _____, 1997, and is made between Zoro, LLC ("Landlord") and
Silicon Valley Internet Partners ("Tenant") to be a part of that certain Lease,
of even date herewith, between Landlord and Tenant (herein the "Lease Form")
concerning approximately 23,077 square feet of space, located at 000 0xx Xxxxxx
(xxx "Xxxxxxxx"), Xxx Xxxxxxxxx, Xxxxx of California (the "Premises"). Landlord
and Tenant agree that the Lease Form is modified and supplemented by this
Addendum.
1. COMMENCEMENT DATE: Notwithstanding anything to the contrary in the
Lease Form:
A. The Commencement Date shall occur on the later of the times
set forth in paragraph 2 of the Lease Form or the date upon which Landlord has
obtained all approvals and permits from the appropriate governmental authorities
required for the legal occupancy of the Premises for Tenant's intended use.
B. If the Commencement Date has not occurred for any reason
whatsoever on or before December 1, 1997, then in addition to Tenant's other
rights or remedies, Tenant may terminate this Lease by written notice to
Landlord.
2. RENTABLE SQUARE FOOTAGE: Notwithstanding anything to the contrary in
the Lease Form, the actual square footage of the Premises is to be determined by
the building architect in compliance with the BOMA usable standards with a 1.20
load factor.
3. ACCEPTANCE OF PREMISES: Notwithstanding anything to the contrary in
the Lease Form:
A. Tenant's acceptance of the Premises shall not be deemed a
waiver of Tenant's right to have defects in the Tenant Improvements or the
Premises repaired at Landlord's sole expense. Tenant shall give notice to
Landlord whenever any such defect becomes reasonably apparent, and Landlord
shall repair such defect as soon as practicable.
B. Landlord warrants and represents that as of the
Commencement Date the Premises will be in good condition and repair and the
electrical, mechanical, HVAC, plumbing, elevator and other systems serving the
Premises and the Building will be in good condition and repair.
4. COMPLIANCE WITH LAWS: Notwithstanding anything to the contrary in
the Lease Form, at the Commencement Date, the Premises and the Building 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.
5. ALTERATIONS, ADDITIONS AND IMPROVEMENTS: Notwithstanding anything to
the contrary in the Lease Form:
A. REMOVAL: Tenant shall not be required to remove any of the
initial Tenant Improvements set forth in Exhibit B of the Lease Form at the end
of the Lease Term. Except as set forth in the preceding sentence, upon request,
Landlord shall advise Tenant in writing whether it reserves the right to require
Tenant to remove any alterations made by Tenant from the Premises upon
termination of the Lease.
B. LANDLORD'S CHARGES: In no event shall Tenant be required to
reimburse Landlord for any costs incurred by Landlord pursuant to Paragraph
9.1(d) of the Lease Form (relating to Tenant's alterations or additions) to the
extent such costs exceed ten (10) percent of the Tenant's cost to perform such
addition or alteration.
C. TENANT'S PROPERTY: All alterations, trade fixtures and
personal property installed in the Premises at Tenant's expense ("Tenant's
Property") shall at all times remain Tenant's property and Tenant shall be
entitled to all depreciation, amortization and other tax benefits with respect
thereto. Except for Alterations which cannot be removed without structural
injury to the Premises, at any time Tenant may remove Tenant's Property from the
Premises, provided Tenant repairs all damage caused by such removal. Tenant is
hereby permitted by Landlord to install, and shall be permitted to remove from
the Premises at any time on or before the expiration of the Lease Term, the
Computer Equipment Rack identified on Exhibit _____ attached hereto.
X. XXXX WAIVER: Landlord shall have no lien or other interest
whatsoever in any item of Tenant's Property, or any portion thereof or interest
therein located in the Premises or else-where, and Landlord hereby waives all
such liens and interests. Within ten (10) days following Tenant's request,
Landlord shall execute documents in form reasonably acceptable to Tenant to
evidence Landlord's waiver of any right, title, lien or interest in Tenant's
Property located in the Premises.
E. SALE OF TENANT'S PROPERTY: Landlord shall provide Tenant
with at least five (5) days prior written notice of any sale of Tenant's
Property.
6. DEFAULT: Notwithstanding anything to the contrary in the Lease Form,
Tenant shall not be deemed to be in default on account of Tenant's failure to
pay money to Landlord, unless Tenant's failure to pay continues for five (5)
days after Tenant's actual receipt of written notice of the delinquency from
Landlord.
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7. CAPITAL IMPROVEMENTS: Notwithstanding anything to the contrary in
the Lease Form. if any of Tenant's obligations under the Lease Form (as modified
by this Addendum) would require Tenant to pay all or any portion of any charge
which could be treated as a capital improvement under generally accepted
accounting principles, the cost of such improvement shall be amortized over the
useful life of the improvement (as reasonably determined by Landlord) with
interest on the unamortized balance at the then prevailing market rate Landlord
would pay if it borrowed funds to construct such improvements from an
institutional lender, and Landlord shall inform Tenant of the monthly
amortization payment required to so amortize such costs, and shall also provide
Tenant with the information upon which such determination is made.
8. EXPENSES: Notwithstanding anything to the contrary in the Lease
Form:
In no event shall Tenant have any obligation to perform or to
pay directly, or to reimburse Landlord for, all or any portion of the following
repairs, maintenance, improvements, replacements, premiums, claims, losses,
fees, charges, costs and expenses (collectively, "Costs"), nor shall any portion
of the Tenant Improvement allowance be applied to such costs:
A. LOSSES CAUSED BY OTHERS: Costs occasioned by the act,
omission or violation of Law by Landlord, any other occupant of the Building, or
their respective agents, employees or contractors.
B. CASUALTIES AND CONDEMNATIONS: Costs occasioned by fire,
acts of God, or other casualties or by the exercise of the power of eminent
domain.
C. CAPITAL IMPROVEMENTS: Costs relating to repairs,
alterations, improvements, equipment and tools which could properly be
capitalized under generally accepted accounting principles, except to the extent
that (i) the foregoing reduces the expenses otherwise payable by Tenant under
the Lease and (ii) Tenant's share of such Cost during any twelve-month period of
the Lease is equitably determined based on Tenant's usage and amortized over the
useful life of the capital item in question.
D. REIMBURSABLE EXPENSES: Costs for which Landlord has a right
of reimbursement from others.
E. REAL ESTATE TAXES: Taxes, assessments, all other
governmental levies, and any increases in the foregoing occasioned by or
relating to (i) land and improvements not reserved for Tenant's exclusive or
nonexclusive use, (ii) a voluntary or involuntary change of ownership or other
conveyance of the real property of which the Premises is a part (a) to any
person or entity affiliated with or related to Landlord or the partners,
shareholders, officers or directors of Landlord or (b) in connection with estate
planning or (c) which is not otherwise a bona fide, arm's length sale to an
unrelated third party, (iii) assessments and other fees for improvements and
services which do not benefit the Premises, or (iv) construction of improvements
for other occupants of the Building.
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F. CONSTRUCTION DEFECTS: Costs to correct any construction
defect in the Premises or the Building or to comply with any CC&R's,
underwriter's requirement or Law applicable to the Premises or the Building on
the Commencement Date.
G. UTILITIES OR SERVICES: Costs (i) arising from the
disproportionate use of any utility or service supplied by Landlord to any other
occupant of the Building, or (ii) associated with utilities and services of a
type not provided to Tenant.
H. INTERIOR IMPROVEMENTS: The cost of any renovation,
improvement, painting or redecorating of any portion of the Building not made
available for Tenant's use, or the costs to perform any initial fit-up of or
improvement to the Common Areas of the Building, including, but not limited to
the improvements to the new lobby area of or entry to the Building.
I. LEASING EXPENSES: Fees, commissions, attorneys' fees, Costs
or other disbursements incurred in connection with negotiations or disputes with
any other occupant of the Building and Costs arising from the violation by
Landlord or any occupant of the Building (other than Tenant) of the terms and
conditions of any lease or other agreement.
J. RESERVES: Depreciation, amortization or other expense
reserves.
K. MORTGAGES: Interest, charges and fees incurred on debt,
payments on mortgages and rent under ground leases.
L. CONCESSIONS AND PARKING: costs incurred in connection with
the operation of any parking or commercial concession within the Building.
M. PROMOTION: Advertising or promotional Costs relating to
events in the Common Areas of the Building or the Exposition Hall.
N. CAPITAL LEASES: Lease payments and Costs for capital
machinery and equipment, such as air conditioners, elevators, and the like.
O. ART: Costs of sculptures, fountains, paintings and other
art objects.
P. INSURANCE: Insurance Costs for coverage not customarily
paid by tenants of similar Buildings in the vicinity of the Premises, increases
in insurance Costs caused by the activities of another occupant of the Building,
insurance deductibles, and co-insurance payments.
Q. HAZARDOUS MATERIALS: Costs incurred to investigate the
presence of any Hazardous Material, Costs to respond to any claim of Hazardous
Material contamination or damage, Costs to remove any Hazardous Material from
the Building and any judgments or other Costs
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incurred in connection with any Hazardous Material exposure or releases, except
to the extent caused by the storage, use or disposal of the Hazardous Material
in question by Tenant.
R. MANAGEMENT: Wages, salaries, compensation, and labor burden
for any employee not stationed on the Building on a full-time basis or any fee,
profit or compensation retained by Landlord or its affiliates for management and
administration of the Building in excess of the management fee which would be
charged by a professional management services for operation of comparable
Buildings in the vicinity.
S. DUPLICATION: Costs and expenses for which Tenant reimburses
Landlord directly or which Tenant pays directly to a third person.
T. NON-OFFICE BUILDING RELATED EXPENSES: Costs not directly
attributable to the operation of the Building as an office building.
9. INDEMNITY: Notwithstanding anything to the contrary in the Lease
Form, Landlord shall indemnify, defend, protect and hold harmless Tenant from
all damages, liabilities, claims, judgments, actions, attorneys' fees,
consultants' fees, costs and expenses arising from the negligence or willful
misconduct of Landlord or its agents, contractors, employees or invitees, or the
breach of Landlord's obligations or representations under this Lease.
10. ASSIGNMENT AND SUBLETTING: Notwithstanding anything to the contrary
in the Lease Form, Tenant may, without Landlord's prior written consent and
without any participation by Landlord in assignment and subletting proceeds,
sublet the Premises or assign the Lease to: (i) a subsidiary, affiliate,
division or corporation controlling, controlled by or under common control with
Tenant; (ii) a successor corporation related to Tenant by merger, consolidation,
nonbankruptcy reorganization, or government action; or (iii) a purchaser of
substantially all of Tenant's assets located in the Premises. For the purpose of
this Lease, sale of Tenant's capital stock through any public exchange shall not
be deemed an assignment, subletting, or any other transfer of the Lease or the
Premises. Landlord's consent to any proposed assignment or subletting shall not
be unreasonably withheld or delayed and, if not given or withheld within
fourteen (14) days following Tenant's request for consent, shall be deemed
given. Notwithstanding anything to the contrary in the Lease Form, Tenant shall
be permitted to assign its Option to Renew the Lease set forth in Paragraph 24
of the Lease Form to any of the parties set forth in subparagraphs (i) through
(iii) of this paragraph.
11. SUBORDINATION: Notwithstanding anything to the contrary in the
Lease Form, this Lease shall not be subject to or subordinate to any ground or
underlying lease or to any lien, mortgage, deed of trust, or security interest
now or hereafter affecting the Premises, nor shall Tenant be required to execute
any documents subordinating this Lease, unless the ground lessor, lender, or
other holder of the interest to which this Lease shall be subordinated
contemporaneously executes a recognition and nondisturbance agreement which (i)
provides that this Lease shall not be terminated so long as Tenant is not in
default under this Lease and (ii) recognizes all of Tenant's rights
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hereunder. Further, Tenant shall have no obligation to attorn to any
successor-in-interest or ground lessor, nor to execute any documents evidencing
attornment, unless the successor-in-interest or ground lessor in question
assumes, in writing, all obligations of the Landlord under this Lease. If
Landlord sells or otherwise conveys its interest in the Premises, Landlord shall
not be relieved of its obligations under the Lease, unless and until Landlord
transfers any security deposit of Tenant to its successor and the successor
assumes in writing the obligations to be performed by Landlord on and after the
effective date of the transfer.
12. PARKING: Notwithstanding anything to the contrary in the Lease
Form, in the event that, at any time during the Lease Term, Tenant determines
not to lease all of the 23 spaces to which it is entitled under paragraph 25 of
the Lease, such spaces shall revert to the Landlord on a month to month basis.
In the event Tenant desires to lease or re-lease such spaces, Landlord agrees to
lease or re-lease such spaces to Tenant within thirty (30) days of Tenant's
request.
13. FINANCIAL STATEMENTS: Notwithstanding anything to the contrary in
the Lease Form, Tenant shall be required to provide financial statements only in
connection with Landlord's sale or refinancing of the Buildings and all such
statements shall be held in strictest confidence.
14. RULES AND REGULATIONS: Notwithstanding anything to the contrary in
the Lease Form, Tenant shall not be required to comply with any new rule or
regulation, unless the same applies non-discriminatorily to all occupants of the
Building and does not unreasonably interfere with Tenant's use of the Premises
or Tenant's parking rights.
15. APPROVALS: Notwithstanding anything to the contrary in the Lease
Form, whenever the Lease requires an approval, consent, designation,
determination or judgment by either Landlord or Tenant, such approval, consent,
designation, determination or judgment (including, without limiting the
generality of the foregoing, those required in connection with assignment and
subletting) 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. Notwithstanding the foregoing, or anything to the contrary in the
Lease Form, all approvals or consents required by either party with regard to
alterations or additions made pursuant to Paragraph 9.1 of the Lease Form shall
be given within fourteen (14) days of request therefor, and in the event no
response is received within such fourteen (14) day period, the requested consent
or approval shall be deemed granted.
16. REASONABLE EXPENDITURES: Notwithstanding anything to the contrary
in the Lease Form, 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.
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17. DAMAGE OR DESTRUCTION: Notwithstanding anything to the contrary in
the Lease Form, Landlord shall notify Tenant within thirty (30) days following
any damage to or destruction of the Premises (or the Building if such damage or
destruction interferes with Tenant's use of the Premises) the length of time
Landlord reasonably estimates to be necessary for repair or restoration. Tenant
shall have the right to terminate the Lease within fifteen (15) days following
receipt of such notice if restoration or repair of the Premises will take more
than one hundred eighty (180) days.
18. NOTICES: Notwithstanding anything to the contrary in the Lease
Form, any notice or report required or desired to be given regarding this Lease
shall be in writing may be given by personal delivery, by facsimile, by courier
service or by mail. Any notice or report addressed to Tenant at the Premises or
to Landlord at the address specified in the Basic Lease Information, as
appropriate, shall be deemed to have been given (i) on the third business day
after mailing if such notice or report was deposited it the United States mail,
certified or registered, postage prepaid, (ii) when delivered if given by
personal delivery, (iii) one day following deposit, cost prepaid, with Federal
Express or similar private carrier, (iv) instantaneously upon confirmation of
receipt of facsimile, and (v) in all other cases when actually received. Either
party may change its address by giving notice of the same in accordance with
this Paragraph.
19. LANDLORD'S ENTRY OF PREMISES: Notwithstanding anything to the
contrary in the Lease Form, Landlord and Landlord's agents, except in the case
of emergency, shall provide Tenant with twenty-four (24) hours' notice prior to
entry of the Premises. Any such entry by Landlord and Landlord's agents shall
comply with all reasonable security measures of Tenant and shall not impair
Tenant's operations more than reasonably necessary. During any such entry,
Landlord and Landlord's agents shall at all times be accompanied by Tenant.
20. SALE OF PROPERTY: Notwithstanding anything to the contrary in the
Lease Form, Landlord shall not be relieved of its obligations under the Lease
upon a sale of the Building, unless the purchasing owner assumes the obligations
of Landlord in writing.
21. QUIET POSSESSION: Notwithstanding anything to the contrary in the
Lease Form, Tenant shall peacefully have, hold and enjoy the Premises, subject
to the other terms of this Lease, provided that Tenant pays the Rent and
performs all of Tenant's covenants and agreement contained in this Lease. This
covenant and the other covenants of Landlord contained in this Lease shall be
binding upon Landlord and its successors only with respect to breaches occurring
during its and their respective ownerships of Landlord's interest hereunder.
22. LANDLORD'S AUTHORITY TO EXECUTE: Notwithstanding anything to the
contrary in the Lease Form, Landlord warrants and represents to Tenant that
Landlord has the full right, power and authority to enter into this Lease and
has obtained all necessary consents and approvals from its partners, officers,
board of directors or other members required under the documents governing its
affairs in order to consummate the Lease contemplated hereby. The persons
executing this Lease on
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behalf of Landlord have the full right, power and authority so to do and affirm
the foregoing warranty on behalf of Landlord and on their own behalf.
23. SECURITY DEPOSIT: Within thirty (30) days after the expiration or
earlier termination of the Lease term and after Tenant has vacated the Premises,
Landlord shall return to Tenant the entire security deposit except for amounts
that Landlord has deducted therefrom that are needed by Landlord to cure
defaults of Tenant under the Lease or compensate Landlord for damages for which
Tenant is liable pursuant to this Lease.
24. EFFECT OF ADDENDUM: Each term used herein with initial capital
letters shall have the meaning ascribed to such term in the Lease Form unless
specifically otherwise defined herein. In the event of any inconsistency between
this First Addendum and the Lease Form, the terms of this First Addendum shall
prevail. As used herein, the term "Lease" shall mean the Lease Form, this
Addendum and all riders, exhibits, rules, regulations, covenants, conditions and
restrictions referred to in the Lease Form or this Addendum.
LANDLORD: TENANT:
ZORO, LLC, SILICON VALLEY INTERNET
a California Limited Liability corporation PARTNERS
a _________ corporation
By: _______________ By:__________________
Printed Printed
Name:_________________ Name:___________________
Title:_________________ Title:_________________
Date:___________________ Date:_________________
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