Exhibit 10.12
AMENDMENT TO LEASE
This Amendment to Lease is effective as of September 1, 1996 between
Xxx xx Xxx ("Lessor") and Internet Travel Network ("Lessee") and amends that
certain Lease between the parties dated November 1995, effective December 15,
1995 for space referred to as 000 Xxxxxxx Xxxxxx, Xxxx Xxxx, Xxxxxxxxxx.
RECITALS
A. Lessor and Lessee entered into that certain lease for space at 000
Xxxxxxxx Xxxxxx, effective December 15, 1995 as evidenced by Commercial Lease
executed on November 14, 1995 by Lessee and November 16, 1995 by Lessor
(hereinafter "First Lease").
X. Xxxxxx and Lessee entered into that certain Commercial Lease Full
Service effective as of September 1, 1996 for additional space at the same
building with options to include even further space within the building
(hereinafter "Second Lease"). As part of that Second Lease, the parties agreed
regarding utilities and other issues that effect all the space Lessee is leasing
from Lessor under both leases. For this reason, the parties desire to cause the
Second Lease to become a part of and an Amendment to the First Lease.
NOW, THEREFORE, in consideration of the mutual promises herein, the
parties agree as follows:
1. All of the terms and conditions of the Second Lease shall be
incorporated in and become a part of the First Lease and except that the term
and rent and option will remain unchanged in the First Lease as will the term
and rent of the Second Lease remain uniquely that of the space covered under the
Second Lease but in all other respects the terms and conditions of the Second
Lease as attached hereto as Exhibit A shall become the terms and conditions of
the First Lease so that all the space leased from Lessor to Lessee in the
building will be subject to the same terms and conditions except as to the term
and rent which will apply uniquely to each space as set forth in the two leases.
2. To the extent of any inconsistencies between this Amendment and
the First Lease, the terms and conditions of this Amendment shall prevail.
Executed as of the date first above written:
LESSOR: LESSEE:
___________________________________ Internet Travel Network
Xxx xx Xxx
By:________________________________
Its:Chief Financial Officer
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COMMERCIAL LEASE AND DEPOSIT RECEIPT
RECEIVED FROM INTERNET TRAVEL NETWORK, hereinafter referred to as
LESSEE, the sum of ($9,836.25 Dollars) evidenced by Check, as a deposit which
shall belong to Lessor and shall be applied as follows:
Balance Due
Prior to
Total Received Acceptance
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Rent for the period from Dec. 15, 1995 to January 31, 1996.......... $ 3,278.75 $ 3,278.75 $
Security deposit (not applicable toward last month's rent)........... $ 6,557.50 $ 6,557.50 $
Other................................................................ $ $ $
TOTAL................................................................ $ 9,836.25 $ 9,835.25 $
In the event that this Lease is not accepted by the Lessor within 2
days, the total deposit received shall be refunded.
Lessee offers to lease from Lessor the premises situated in the City
of Palo Alto, County of Santa Xxxxx, State of California, described as 000
Xxxxxxx Xxxxxx, see attached floor plan, upon the following TERMS and
CONDITIONS:
1. Term: The term hereof shall commence on December 15, 1995, and end
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on March 31, 2001.
2. Rent: The total rent shall be $(see Exhibit B), payable as
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follows: Monthly, due on the 1st day of each month. All rents shall be paid to
Lessor or his/her authorized Agent, at the following address: Enterprise
Development Co., X.X. Xxx 0000, Xxxxxxxxxx, XX 00000, or at such other places as
may be designated by Lessor from time to time. In the event rent is not paid
within 5 days after due date, Lessee agrees to pay a late charge of $100 plus
interest at 18% per annum on the delinquent amount. Lessee further agrees to pay
$100 for each dishonored bank check. The late charge period is not a grace
period, and Lessor is entitled to make written demand for any rent if not paid
when due.
3. Use: The premises are to be used for the operation of Professional
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Internet Services and for no other purpose, without prior written consent of
Lessor. Lessee shall not commit any waste upon the premises, or any nuisance or
act which may disturb the quiet enjoyment of any tenant in the building.
4. Uses Prohibited: Lessee shall not use any portion of the premises
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for purposes other than those specified. No use shall be made or permitted to be
made upon the premises, nor acts done, which will increase the existing rate of
insurance upon the property, or cause cancellation of insurance policies
covering the property. Lessee shall not conduct or permit any sale by auction on
the premises.
5. Assignment and Subletting: Lessee shall not assign this Lease or
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sublet any portion of the premises without prior written consent of the Lessor,
which shall not be unreasonably withheld. Any such assignment or subletting
without consent shall be void and, at the option of the Lessor, shall terminate
this Lease.
6. Ordinances and Statutes: Lessee shall comply with all statutes,
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ordinances, and requirements of all municipal, state and federal authorities now
in force, or which may later be in force. The commencement or pendency of any
state or federal court abatement proceeding affecting the use of the premises
shall, at the option of the Lessor, be deemed a breach of this Lease.
7. Maintenance, Repairs, Alterations: Unless otherwise indicated,
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Lessee acknowledges that the premises are in good order and repair. Lessee
shall, at his/her own expense, maintain the premises in a good and safe
condition, including plate glass, electrical wiring, plumbing and heating
installations, and any other system or equipment. The premises shall be
surrendered, at termination of the Lease, in as good condition as received,
normal wear and tear excepted. Lessee shall be responsible for all repairs
required, except the roof, exterior walls, structural foundations, and: n/a,
which shall be maintained by Lessor. Lessee shall also maintain in good
condition property adjacent to the premises, such as sidewalks, driveways,
lawns, and shrubbery, which would be maintained by Lessor.
No improvement or alteration of the premises shall be made without the
prior written consent of the Lessor. Prior to the commencement of any
substantial repair, improvement, or alteration, Lessee shall give Lessor at
least two (2) days written notice in order that Lessor may post appropriate
notices to avoid any liability for liens.
8. Entry and Inspection: Lessee shall permit Lessor or Lessor's
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agents to enter the premises at reasonable times and upon reasonable notice for
the purpose of inspecting the premises, and shall permit Lessor, at any time
within one hundred eighty (180) days prior to the expiration of this Lease, to
place upon the premises any usual "To Let" or "For Lease" signs, and permit
persons desiring to lease the premises to inspect the premises at reasonable
times.
9. Indemnification of Lessor: Lessor shall not be liable for any
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damage or injury to Lessee, or any other person, or to any property, occurring
on the premises. Lessee agrees to hold Lessor harmless from any claims for
damages arising out of Lessee's use of the premises, and to indemnify Lessor for
any expense incurred by Lessor in defending any such claims.
10. Possession: If Lessor is unable to deliver possession of the
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premises at the commencement date set forth above, Lessor shall not be liable
for any damage caused by the delay, nor shall this Lease be void or voidable,
but Lessee shall not be liable for any rent until possession is delivered.
Lessee may terminate this Lease if possession is not delivered within 30 days of
the commencement term in Item 1.
11. Lessee's Insurance: Lessee, at his/her expense, shall maintain
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plate glass and public liability insurance, including bodily injury and property
damage, insuring Lessee and Lessor with minimum coverage as follows: $2,000,000.
Lessee shall provide Lessor with a Certificate of Insurance showing
Lessor as additional insured. The policy shall require ten (10) day's written
notice to Lessor prior to cancellation or material change of coverage.
12. Lessor's Insurance: Lessor shall maintain hazard insurance
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covering one hundred percent (100%) replacement cost of the improvements
throughout the Lease term. Lessor's insurance will not insure Lessee's personal
property or leasehold improvements.
13. Subrogation: To the maximum extent permitted by insurance
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policies which may be owned by the parties, Lessor and Lessee waive any and all
rights of subrogation which might otherwise exist.
14. Utilities: Lessor agrees that he/she shall be responsible for the
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payment of all utilities, including water, gas, electricity, heat and other
services delivered to the premises.
15. Signs: Lessor reserves the exclusive right to the roof, side and
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rear walls of the premises. Lessee shall not construct any projecting sign or
awning without the prior written consent of Lessor, which shall not be
unreasonably withheld.
16. Abandonment of Premises: Lessee shall not vacate or abandon the
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premises at any time during the term of this Lease. If Lessee does abandon or
vacate the premises, or is dispossessed by process of law, or otherwise, any
personal property belonging to Lessee left on the premises shall be deemed to be
abandoned, at the option of Lessor.
17. Condemnation: If any part of the premises is condemned for public
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use, and a part remains which is susceptible of occupation by Lessee, this Lease
shall, as to the part taken, terminate as of the date the condemnor acquires
possession. Lessee shall be required to pay such proportion of the rent for the
remaining term as the value of the premises remaining bears to the total value
of the premises at the date of condemnation; provided, however, that Lessor may
at his/her option, terminate this Lease as of the date the condemnor acquires
possession. In the event that the premises are condemned in whole, or the
remainder is not susceptible for use by the Lessee, this Lease shall terminate
upon the date which the condemnor acquires possession. All sums which may be
payable on account of any condemnation shall belong solely to the Lessor; except
that Lessee shall be entitled to retain any amount awarded to him/her for
his/her trade fixtures or moving expenses.
18. Trade Fixtures: Any and all improvements made to the premises
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during the term shall belong to the Lessor, except trade fixtures of the Lessee.
Lessee may, upon termination, remove all his/her trade fixtures, but shall pay
for all costs necessary to repair any damage to the premises occasioned by the
removal.
19. Destruction of Premises: In the event of a partial destruction of
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the premises during the term, from any cause, Lessor shall promptly repair the
premises, provided that such repairs can be reasonably made within sixty (60)
days. Such partial destruction shall not terminate this Lease, except that
Lessee shall be entitled to a proportionate reduction of rent while such repairs
are being made, based upon the extent to which the making of such repairs
interferes with the business of Lessee on the premises. If the repairs cannot be
made within sixty (60) days, this Lease may be terminated at the option of
either party by giving written notice to the other party within the sixty (60)
day period.
20. Hazardous Materials: Lessee shall not use, store, or dispose of
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any hazardous substances upon the premises, except the use and storage of such
substances that are
customarily used in Lessee's business, and are in compliance with all
environmental laws. Hazardous substances means any hazardous waste, substance or
toxic materials regulated under any environmental laws or regulations applicable
to the property.
21. Insolvency: The appointment of a receiver, an assignment for the
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benefits of creditors, or the filing of a petition in bankruptcy by or against
Lessee, shall constitute a breach of this Lease by Lessee.
22. Default: In the event of any breach of this Lease by Lessee,
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Lessor may, at his/her option, terminate the Lease and recover from Lessee (a)
the worth at the time of award of the unpaid rent, which had been earned at the
time of termination, (b) 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
the award exceeds the amount of such rental loss that the Lessee proves could
have been reasonably avoided; (c) the worth at the time of 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 the Lessee proves could be
reasonably avoided; and (d) any other amount necessary to compensate Lessor for
all the detriment proximately caused by the Lessee's failure to perform his/her
obligations under the Lease or which in the ordinary course of things would be
likely to result therefrom.
Lessor may, in the alternative, continue this Lease in effect, as long
as Lessor does not terminate Lessee's right to possession, and Lessor may
enforce all of Lessor's rights and remedies under the Lease, including the right
to recover the rent as it becomes due under the Lease. If said breach of Lease
continues, Lessor may, at any time thereafter, elect to terminate the Lease.
Nothing contained herein shall be deemed to limit any other rights or
remedies which Lessor may have.
23. Security: The security deposit set forth above shall secure the
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performance of the Lessee's obligations. Lessor may, but shall not be obligated
to apply all or portions of the deposit on account of Lessee's obligations. Any
balance remaining upon termination shall be returned to Lessee. Lessee shall not
have the right to apply the security deposit in payment of the last month's
rent.
24. Deposit Refunds: The balance of all deposits shall be refunded
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within three weeks (or otherwise required by law), from date possession is
delivered to Lessor or his/her authorized Agent, together with a statement
showing any charges made against such deposits by Lessor.
25. Attorney's Fee and Costs: In any action or proceeding involving a
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dispute between Lessor and Lessee arising out of this Lease, the prevailing
party shall be entitled to reasonable attorney's fees.
26. Waiver: No failure of Lessor to enforce any term of this Lease
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shall be deemed to be a waiver.
27. Notices: Any notice which either party may or is required to
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give, shall be given by mailing the same, postage prepaid, to Lessee at the
premises, or to Lessor at the address shown in Item 2, or at such other places
as may be designated by the parties from time to time. Notice shall be effective
five days after mailing, or on personal delivery.
28. Holding Over: Any holding over after the expiration of this
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Lease, with the consent of Owner, shall become a month-to-month tenancy at a
monthly rent of $ n/a , payable in advance and otherwise subject to the terms of
this Lease, as applicable, until either party shall terminate the same by giving
the other party thirty (30) days written notice.
29. Time: Time is of the essence of this Lease.
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30. Heirs, Assigns, Successors: This Lease is binding upon and inures
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to the benefit of the heirs, assigns and successors of the parties.
31. Tax Increase: In the event there is any increase during any year
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of the term of this Lease in the City, County or State real estate taxes over
and above the amount of such taxes assessed for the tax year during which the
term of this Lease commences, Lessee shall pay to Lessor upon presentation of
paid tax bills an amount equal to 30% of the increase in taxes upon the land and
building in which the leased premises are situated. In the event that such taxes
are assessed for a tax year extending beyond the term of the Lease, the
obligation of Lessee shall be prorated. Lessee shall be not be responsible for
any tax increase occasioned solely by a sale or transfer of the premises by
Lessor.
32. Cost of Living Increase: The rent provided for in Item 2 shall be
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adjusted effective upon the first day of the month immediately following the
expiration of 12 months from date of commencement of the term, and upon the
expiration of each 12 months _________ in accordance with changes in the U.S.
Consumer Price Index for All Urban Consumers (1982-84 = 100) hereinafter called
the "CPI." The monthly rent shall be increased to an amount equal to the monthly
rent set forth in Item 2, multiplied by a fraction the numerator of which is the
CPI for the second calendar month immediately preceding the commencement of the
Lease term; provided, however, that the monthly rent shall not be less than the
annual _________. See Exhibit.
33. Option to Renew: Provided that Lessee is not in default in the
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performance or this Lease, Lessee shall have the option to renew the Lease for
an additional term of 60 months commencing at the expiration of the initial
Lease. All of the terms and conditions of the Lease shall apply during the
renewal term, except that the monthly rent shall be the sum of $ See Exhibit B,
which shall be adjusted in accordance with the cost of living increase provision
set forth in Item 32.
The option shall be exercised by written notice given to Lessor not
less than 180 days prior to the expiration of the initial Lease term. If notice
is not given within the time specified, this Option shall expire.
34. Americans with Disabilities Act: The parties are alerted to the
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existence of the Americans With Disabilities Act, which may require costly
structural modifications. The parties are advised to consult with a professional
familiar with the requirements of the Act.
35. Lessor's Liability: In the event of a transfer of Lessor's title
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or interest to the property during the term of this Lease, Lessee agrees that
the grantee of such title or interest shall be substituted as the Lessor under
this Lease, and the original Lessor shall be released of all further liability;
provided, that all deposits shall be transferred to the grantee.
36. Estoppel Certificate:
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(a) On ten (10) days' prior written notice from Lessor, Lessee
shall execute, acknowledge, and deliver to Lessor a statement in writing: (1)
certifying that this Lease is unmodified and in full force and effect (or, if
modified, stating the nature of such modification and certifying that this
Lease, as so modified, is in full force and effect), the amount of any security
deposit, and the date to which the rent and other charges are paid in advance,
if any; and (2) acknowledging that there are not, to Lessee's knowledge, any
incurred defaults on the part of Lessor, or specifying such defaults if any are
claimed. Any such statement may be conclusively relied upon by any prospective
buyer or encumbrancer of the premises.
(b) At Lessor's option, Lessee's failure to deliver such
statement within such time shall be a material breach of this Lease or shall be
conclusive upon Lessee: (1) that this Lease is in full force and effect, without
modification except as may be represented by Lessor; (2) that there are no
uncured defaults in Lessor's performance; and (3) that not more than one month's
rent has been paid in advance.
(c) If Lessor desires to finance, refinance, or sell the
premises, or any part thereof, Lessee agrees to deliver to any lender or buyer
designated by Lessor such financial statements of Lessee as may be reasonably
required by such lender or buyer. All financial statements shall be received by
the Lessor or the lender or buyer in confidence and shall be used only for the
purposes set forth.
37. Entire Agreement: The foregoing constitutes the entire Agreement
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between the parties and may be modified only in writing signed by all parties.
The following exhibits are a part of this Lease:
Exhibit A: Floor plans and improvements
Exhibit B: Cost of living adjustment and option to renew
Exhibit C: Right of First Refusal
Exhibit D: MRI
Exhibit F: Offer Expiration
The undersigned Lessee hereby acknowledges that he/she has thoroughly
read and approved each of the provisions contained in this Offer, and agrees to
the terms and conditions specified:
Lessee:_____________________________ Lessee:___________________________
Xxxxxx Xxxxxx C.T.O. Xxxxxx Xxxxxx C.E.O.
Date:_______________________________ Date:_____________________________
Receipt for deposit acknowledged by:__________________________________________
Lessee:_____________________________
Date:_______________________________
ACCEPTANCE
The undersigned Lessor accepts the foregoing Offer and agrees to lease
the premises on the terms and conditions set forth above.
NOTICE: The amount or rate of real estate commissions is not fixed by
law. They are set by each broker individually and may be negotiable between the
owner and broker.
The Lessor agrees to pay to Xxxxxx Properties, the Broker in this
transaction, the sum of 5% for services rendered.
In any action for commission, the prevailing party shall be entitled
to reasonable attorney fees:
Lessee:_______________________________ Lessee:___________________________
Date: 11/16/95 Date:_____________________________
Lessee acknowledges receipt of a copy of the accepted Agreements.
Lessee:_______________________________ Lessee:___________________________
Date:_________________________________ Date:_____________________________
EXHIBIT "A"
(FLOOR PLAN AND IMPROVEMENTS)
The Lessor shall provide, at his own cost, the following Tenant Improvements:
1) Water and sewage service in one location (see floor plan), but not exterior
plumbing and cabinetry
2) All exterior walls with freshly painted drywall and electrical and phone
outlets as required by code
3) A fully carpeted floor; The existing carpet is acceptable
4) A conference room (see floor plan)
5) Drop ceiling with lights and HVAC to code
EXHIBIT "B"
(COST OF LIVING ADJUSTMENTS AND OPTION TO RENEW)
The initial monthly rent for the first year from March 1, 1996 to
February 28, 1997 will be $6,557.50 per month. Thereafter the rent will increase
in accordance with the CPI but limited to a minimum increase of 4% and a maximum
increase of 6% (see item 32 of Master Lease). The CPI increase is applied each
March 1 during the duration of the lease. The same schedule of increases applies
to the option period, if it is exercised by the Lessee.
EXHIBIT "C"
(RIGHT OF FIRST REFUSAL)
Tenant shall have the right of first refusal to negotiate on any space
which becomes available in the building. Tenant shall have two (2) days to make
their decision.
A TERMINATION CLAUSE....
Landlord has another tenant in the medical imaging business. Landlord
has permitted this other tenant to mount the imaging device immediately on the
other side of a wall on one side of the space to be leased by ITN. Conversations
with Hitachi, the manufacturer, indicate that the active power output of the
device is in a narrow range centered around 12.7 megahertz, at a maximum power
of 5 kilowatts, and that the shielding enclosure should reduce the signal by 80
decibels, i.e. 8 bels, or 10 to the 8th power, for a total power issuing from
the shielded room of .05 milliwatts, and with six surfaces of the room, a power
entering ITN's leased space of less than .05/6 or .0083 milliwatts. The safety
factor should be maintained. Tenant (ITN) shall have the ability to terminate
this lease if after 60 days notice landlord has been unable to correct any of
the following problems to tenant's satisfaction:
1 - Radiation in the direction of ITN's leased space is found at any
time to exceed by a factor of two the intended maximum radiation, i.e. is above
.0166 milliwatts. (Hitachi indicates that normal operation is at 1/4th power;
this level of emissions should therefore be unlikely according to Hitachi's
statements.)
Printed for xxxxx@xxx.xxx (NancyWright)
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Xxx Xxxxxx, 07:55 AM 11/13/9, suggested lease language (fwd)
2 - The imaging device is emitting other radiation or strong magnetic
fields, that are felt to be impairing normal conduct of business in any way, or
the imaging devices presence is in any other way obstructing the desired
utilization of the leased (ITN's) space.
EXHIBIT "E"
(PERSONAL GUARANTEE AND REMOVAL)
This lease will be personally guaranteed by the Lessees namely, Xxxxxx
Xxxxxx, Xxxxxx Xxxxxx, and Xxxxx Xxxxxxxx. If after the first 24 months of the
lease term the Lessee is in compliance with all the terms and conditions of this
lease and has been performing all of the duties and obligations of Lessee in a
timely manner the personal guarantees will be eliminated. The Lessor will so
remove the personal guarantees in writing.
EXHIBIT "F"
OFFER EXPIRATION
This offer to lease will expire at 5:00 P.M. November 20.
