EXHIBIT 10.19
OFFICE LEASE
AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION
GUARANTY OF LEASE
WHEREAS, Internet Exchange International, Inc., a California
Corporation, (hereinafter "Lessor"), and xxxxxxxxxxxxxxxx.xxx, Inc., a Delaware
Corporation, (hereinafter "Lessee"), are about to execute a document entitled
"Lease" dated March 30, 2000 concerning the premises commonly known as 000
Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000 and Suite 260, herein Lessor will lease the
premises to Lessee; and
WHEREAS, Xxxxxx X. Xxxxxxxx, (hereinafter "Guarantor") has a financial
interest in Lessee; and
WHEREAS, Lessor would not execute the Lease if Guarantors did not
execute and deliver to Lessor this Guaranty of Lease.
NOW, THEREFORE, in consideration of the execution of the foregoing
Lease by Lessor and as a material inducement to Lessor to execute said Lease,
Guarantors hereby jointly, severally, unconditionally and irrevocably guarantee
the prompt payment by Lessee of all rents and all other sums payable by Lessee
under said Lease and the faithful and prompt performance by Lessee of each and
every one of the terms, conditions and covenants of said Lease to be kept and
performed by Lessee.
It is specifically agreed that the terms of the foregoing Lease may be
modified by agreement between Lessor and Lessee, or by a course of conduct, and
said Lease may be assigned by Lessor or any assignee of Lessor without consent
or notice to Guarantors and that this Guaranty shall guarantee the performance
of said Lease as so modified.
This Guaranty shall not be released, modified or affected by the
failure or delay on the part of Lessor to enforce any of the rights or remedies
of the Lessor under said Lease, whether pursuant to the terms thereof or at law
or in equity.
No notice of default need be given to Guarantors, it being specifically
agreed that the guarantee of the undersigned is a continuing guarantee under
which Lessor may proceed immediately against Lessee and/or against Guarantors
following any breach or default by Lessee after the enforcement of any rights
which Lessor may have as against Lessee under the terms of the Lease or at law
or in equity.
Lessor shall have the right to proceed against Guarantors hereunder
following any breach or default by Lessee without first proceeding against
Lessee and without previous notice to or demand upon either Lessee or
Guarantors.
Guarantors hereby waive (a) notice of acceptance of this Guaranty, (b)
demand of payment, presentation and protest, (c) all right to assert or plead
any statute of limitations
relating to this Guaranty or the Lease, (d) any right to require the Lessor
to proceed against the Lessee or any other Guarantor or any other person or
entity liable to Lessor, (e) any right to require Lessor to apply to any
default, any security deposit or other security it may hold under the Lease,
(f) any right to require Lessor to proceed under any other remedy Lessor may
have before proceeding against Guarantors, (g) any right of subrogation.
Guarantors do hereby subrogate all existing or future indebtedness of
Lessee to Guarantors to the obligations owed to Lessor under the Lease and this
Guaranty.
If a Guarantor is married, such Guarantor expressly agrees that
recourse may be had against his or her separate property for all of the
obligations hereunder.
The obligations of Lessee under the Lease to execute and deliver
estoppel statements and financial statements, as therein provided, shall be
deemed to also require the Guarantors hereunder to do and provide the same.
The term "Lessor" refers to and means the Lessor named in the Lease and
also Lessor's successors and assigns. So long as Lessor's interest in the Lease,
the leased premises or the rents, issues and profits therefrom, are subject to
any mortgage or deed of trust or assignment of security, no acquisition by
Guarantors of the Lessor's interest shall affect the continuing obligation of
Guarantors under this Guaranty which all nevertheless continue in full force and
effect for the benefit of the mortgagee, beneficiary, trustee or assignee under
such mortgage, deed, trust or assignment and their successors and assigns.
The term "Lessee" refers to and means the Lessee named in the Lease and
also Lessee's successors and assigns.
In the event any action be brought by said Lessor against Guarantors
hereunder to enforce the obligation of Guarantors hereunder, the successful
party in such action shall pay to the prevailing party therein a reasonable
attorney's fee which shall be fixed by the court.
IF THIS FORM HAS BEEN FILLED IN, IT HAS BEEN PREPARED FOR SUBMISSION TO
YOUR ATTORNEY FOR HIS APPROVAL. NO REPRESENTATION OR RECOMMENDATION IS
MADE BY THE AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION, THE REAL
ESTATE BROKER OR ITS AGENTS OR EMPLOYEES AS TO THE LEGAL SUFFICIENCY,
LEGAL EFFECT, OR TAX CONSEQUENCES OF THIS FORM OR THE TRANSACTION
RELATING THERETO.
AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION
STANDARD SUBLEASE
Parties. This Sublease, dated, for reference purposes only, March 30, 2000, is
made by and between Internet Exchange International, Inc., a California
Corporation ("Sublessor") and xxxxxxxxxxxxxxxx.xxx, Inc., a Delaware Corporation
("Sublessee").
Premises. Sublessor hereby subleases to Sublessee and Sublessee hereby subleases
from Sublessor for the term, at the rental, and upon all of the conditions set
forth herein, that certain real property, including all improvements therein,
and commonly known by the street address of 000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000
and Suite 260 located in the County of Orange, State of California and generally
described as 1,284 square feet ("Premises").
Term.
Term. The term of this Sublease shall be for approximately 16 months commencing
on April 8, 2000 and ending on July 31, 2001 unless sooner terminated pursuant
to any provision hereof.
Delay in Commencement. Sublessor agrees to use its best commercially reasonable
efforts to deliver possession of Premises by the commencement date. If, despite
said efforts, Sublessor is unable to deliver possession as agreed, the rights
and obligations of Sublessor and Sublessee shall be as set forth in Paragraph
3.3 of the Master Lease (as modified by Paragraph 7.3 of this Sublease).
Rent.
Base Rent. Sublessee shall pay to Sublessor as Base Rent for the Premises equal
monthly payments of $3,852.00 in advance, on the first day of each month of the
term hereof. Sublessee shall pay Sublessor upon the execution hereof $2,953.00
as Base Rent for April (April 8th - April 30th). The rental rate is broken down
as follows: Base rent and monthly purchase of furniture and equipment. (See item
14.) Base Rent for any period during the term hereof which is for less than one
month shall be a pro rata portion of the monthly installment.
Rent Defined. All monetary obligations of Sublessee to Sublessor under the terms
of this Sublease (except for the Security Deposit) are deemed to be rent
("Rent"). Rent shall be payable in lawful money of the United States to
Sublessor at the address stated herein or to such other persons or at such other
places as Sublessor may designate in writing.
Security Deposit. Sublessee shall deposit with Sublessor upon execution hereof
$3,852.00 as security for Sublessee's faithful performance of Sublessee's
obligations hereunder. The rights and obligations of Sublessor and Sublessee as
to said Security Deposit shall be as set forth in Paragraph 5 of the Master
Lease (as modified by Paragraph 7.3 of this Sublease).
Use.
Agreed Use. The Premises shall be used and occupied only for general office use
and for no other purpose.
Compliance. Sublessor warrants that the improvements on the Premises comply with
all applicable covenants or restrictions of record and applicable building
codes, regulations and ordinances ("Applicable Requirements") in effect on the
commencement date. Said warranty does not apply to the use to which Sublessee
will put the Premises or to any alterations or utility installations made or to
be made by Sublessee. NOTE: Sublessee is responsible for determining whether or
not the zoning is appropriate for its intended use, and acknowledges that past
uses of the Premises may no longer be allowed. If the Premises do not comply
with said warranty, or in the event that the Applicable Requirements are
hereafter changed, the rights and obligations of Sublessor and Sublessee shall
be as provided in Paragraph 2.3 of the Master Lease (as modified by Paragraph
7.3 of this Sublease.)
Acceptance of Premises and Lessee. Sublessee acknowledges that:
(a) it has been advised by Brokers to satisfy itself with
respect to the condition of the Premises (including but not limited to the
electrical, HVAC and fire sprinkler systems, security, environmental aspects,
and compliance with Applicable requirements), and their suitability for
Sublessee's intended use,
(b) Sublessee has made such investigation as it deems
necessary with reference to such matters and assumes all
Sublease in which event the terms of this Sublease document shall control over
the Master Lease. Therefore, for the purposes of this Sublease, wherever in the
Master Lease the word "Lessor" is used, it shall be deemed to mean the Sublessor
herein and wherever in the Master Lease the word "Lessee" is used, it shall be
deemed to mean the Sublessee herein.
During the term of this Sublease and for all periods subsequent for obligations
which have arisen prior to the termination of this Sublease, Sublessee does
hereby expressly assume and agree to perform and comply with, for the benefit of
Sublessor and Master Lessor, each and every obligation of Sublessor under the
Master Lease except for the following paragraphs which are excluded therefrom:
The obligations that Sublessee has assumed under Paragraph 7.4 hereof are
hereinafter referred to as the "Sublessee's Assumed Obligations." The
obligations that Sublessee has not assumed under Paragraph 7.4 hereof are
hereinafter referred to as the "Sublessor's Remaining Obligations."
Sublessee shall hold Sublessor free and harmless from all liability, judgments,
costs, damages, claims or demands, including reasonable attorneys fees, arising
out of Sublessee's failure to comply with or perform Sublessee's Assumed
Obligations.
Sublessor agrees to maintain the Master Lease during the entire term of this
Sublease, subject, however, to any earlier termination of the Master Lease
without the fault of the Sublessor, and to comply with or perform Sublessor's
Remaining Obligations and to hold Sublessee free and harmless from all
liability, judgments, costs, damages, claims or demands arising out of
Sublessor's failure to comply with or perform Sublessor's Remaining Obligations.
Sublessor represents to Sublessee that the Master Lease is in full force and
effect and that no default exists on the part of any Party to the Master Lease.
Assignment of Sublease and Default.
Sublessor hereby assigns and transfers to Master Lessor the Sublessor's interest
in this Sublease, subject, however, to the provisions of Paragraph 8.2 hereof.
Master Lessor, by executing this document, agrees that until a Default shall
occur in the performance of Sublessor's Obligations under the Master Lease, that
Sublessor may receive, collect and enjoy the Rent accruing under this Sublease.
However, if Sublessor shall Default in the performance of its obligations to
Master Lessor then Master Lessor may, at its option, receive and collect,
directly from Sublessee, all Rent owing and to be owed under this Sublease.
Master Lessor shall not, by reason of this assignment of the Sublease nor by
reason of the collection of the Rent from the Sublessee, be deemed liable to
Sublessee for any failure of the Sublessor to perform and comply with
Sublessor's Remaining Obligations.
Sublessor hereby irrevocably authorizes and directs Sublessee upon receipt of
any written notice from the Master Lessor stating that a Default exists in the
performance of Sublessor's obligations under the Master Lease, to pay to Master
Lessor Rent due and to become due under the Sublease. Sublessor agrees that
Sublessee shall have the right to rely upon any such statement and request from
Master Lessor, and that Sublessee shall pay such Rent to Master Lessor without
any obligation or right to inquire as to whether such Default exists and
notwithstanding any notice from or claim from Sublessor to the contrary and
Sublessor shall have no right or claim against Sublessee for any such Rent so
paid by Sublessee.
No changes or modifications shall be made to this Sublease without the consent
of Master Lessor.
Consent of Master Lessor.
In the event that the Master Lease requires that Sublessor obtain the consent of
Master Lessor to any subletting by Sublessor, then this Sublease shall not be
effective unless, within ten days of the date hereof, Master Lessor signs this
Sublease thereby giving its consent to this Subletting.
In the event that the obligations of the Sublessor under the Master Lease have
been guaranteed by third parties then neither this Sublease, nor the Master
Lessor's consent, shall be effective unless, within 10 days of the date hereof,
said guarantors sign this Sublease thereby giving their consent to this
Sublease.
In the event that Master Lessor does give such consent then:
(a) Such consent shall not release Sublessor of its
obligations or alter the primary liability of Sublessor to pay the Rent and
perform and comply with all of the obligations of Sublessor to be performed
under the Master Lease.
(b) The acceptance of Rent by Master Lessor from Sublessee or
anyone else liable under the Master Lease shall not be deemed a waiver by Master
Lessor of any provisions of the Master Lease.
(c) The consent to this Sublease shall not constitute a
consent to any subsequent subletting or assignment.
(d) In the event of any Default or Sublessor under the Master
Lease, Master Lessor may proceed directly against Sublessor, any guarantors or
anyone else liable under the Master Lease or this Sublease without first
exhausting Master Lessor's remedies against any other person or entity liable
thereon to Master Lessor.
(e) Master Lessor may consent to subsequent sublettings and
assignments of the Master Lease or this Sublease or any amendments or
modifications thereto without notifying Sublessor or anyone else liable under
the Master Lease and without obtaining their consent and such action shall not
relieve such persons from liability.
(f) In the event that Sublessor shall Default in its
obligations under the Master Lease, then Master Lessor, at its option and
without being obligated to do so, may require Sublessee to attorn to Master
Lessor in which event Master Lessor shall undertake the obligations of Sublessor
under this Sublease from the time of the exercise of said option to termination
of this Sublease but Master Lessor shall not be liable for any prepaid Rent nor
any Security Deposit paid by Sublessee, nor shall Master Lessor be liable for
any other Defaults of the Sublessor under the Sublease.
The signatures of the Master Lessor and any Guarantors of Sublessor at the end
of this document shall constitute their consent to the terms of this Sublease.
Master Lessor acknowledges that, to the best of Master Lessor's knowledge, no
Default presently exists under the Master Lease of obligations to be performed
by Sublessor and that the Master Lease is in full force and effect.
Master Lessor agrees that if Sublessee shall exercise any option or right of
first refusal granted to Sublessee by Master Lessor in connection with this
Sublease, or any option or right substantially similar thereto, either to extend
or renew the Master Lease, to purchase the Premises or any part thereof, or to
lease or purchase adjacent property which Master Lessor may own or which Master
Lessor has an interest, or if Broker is the procuring cause of any other lease
or sale entered into between Sublessee and Master Lessor pertaining to the
Premises, any part thereof, or any adjacent property which Master Lessor owns or
in which it has an interest, then as to any of said transactions, Master Lessor
shall pay to Broker a fee, in cash, in accordance with the schedule of Broker in
effect at the time of the execution of this Sublease.
Any fee due from Sublessor Master Lessor hereunder shall be due and payable upon
the exercise of any option to extend or renew, upon the execution of any new
lease, or, in the event of a purchase, at the close of escrow.
Any transferee of Sublessor's interest in this Sublease, or of Master Lessor's
interest in the Master Lease, by accepting an assignment thereof, shall be
deemed to have assumed the respective obligations of Sublessor or Master Lessor
under this Paragraph 10. Broker shall be deemed to be a third-party beneficiary
of this paragraph 10.
ATTORNEY'S FEES. If any party or the Broker named herein brings an action to
enforce the terms hereof or to declare rights hereunder, the prevailing party in
any such action, on trial and appeal, shall be entitled to his reasonable
attorney's fees to be paid by the losing party as fixed by the court.
ADDITIONAL PROVISIONS. [If there are no additional provisions, draw a line from
this point to the next printed word after the space left here. if there are
additional provisions, place the same here.]
Sublessee shall accept the suite in an "as is" condition and be responsible for
door and directory signage costs subject to the provision in the Lease document.
Rent shall be as follows: $2,334.00 monthly until July 31, 2000. Commencing
August 1, 2000 rent shall
increase to $2,413.00 monthly until the end of the lease term. The remainder
rent shall be the amortized acquisition of furniture and equipment. (See
attached inventory list.)
ATTENTION: NO REPRESENTATION OR RECOMMENDATION IS MADE BY THE AMERICAN
INDUSTRIAL REAL ESTATE ASSOCIATION OR BY ANY REAL ESTATE BROKER AS TO THE LEGAL
SUFFICIENCY, LEGAL EFFECT, OR TAX CONSEQUENCES OF THIS SUBLEASE OR THE
TRANSACTION TO WHICH IT RELATES. THE PARTIES ARE URGED TO:
1. SEEK ADVICE OF COUNSEL AS TO THE LEGAL AND TAX CONSEQUENCES OF THIS SUBLEASE.
2. RETAIN APPROPRIATE CONSULTANTS TO REVIEW AND INVESTIGATE THE CONDITION OF THE
PREMISES, SAID INVESTIGATION SHOULD INCLUDE BUT NOT BE LIMITED TO: THE POSSIBLE
PRESENCE OF HAZARDOUS SUBSTANCES, THE ZONING OF THE PROPERTY, THE STRUCTURAL
INTEGRITY, THE CONDITION OF THE ROOF AND OPERATING SYSTEMS, AND THE SUITABILITY
OF THE PREMISES FOR SUBLESSEE'S INTENDED USE.
WARNING: IF THE SUBJECT PROPERTY IS LOCATED IN A STATE OTHER THAN CALIFORNIA,
CERTAIN PROVISIONS OF THE SUBLEASE MAY NEED TO BE REVISED TO COMPLY WITH THE
LAWS OF THE STATE IN WHICH THE PROPERTY IS LOCATED.
Executed at:
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on: By
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Address: By
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------------------------------------- "Sublessor" (Corporate Seal)
Executed at:
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on: By
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Address: By
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------------------------------------- "Sublessor" (Corporate Seal)
