LEASE
Xxxxxxxxx 00, 0000
Xx and Between
000 XXXXXXX XXXXXX COMPANY,
a limited partnership,
Landlord
and
INSTANT VIDEO TECHNOLOGIES, INC.,
a Delaware corporation
Tenant
INDEX TO LEASE
Headings PAGE
-------- ----
1. Parties 1
2. Term 1
3. Use 1
4. Rent 1
5. Services 4
6. Landlord's Title 5
7. Certain Rights Reserved Landlord 5
8. Default Under Other Lease 6
9. Waiver Of Certain Claims 6
10. Holding Over 7
11. Assignment And Subletting 7
12. Condition Of Premises 9
13. Alterations 9
14. Use Of Premises 10
15. Repairs 11
16. Untenantability 12
17. Eminent Domain 13
18. Compliance With Law 13
19. Default 14
20. Insolvency Or Bankruptcy 15
21. Notices 15
22. Subordination Of Lease 16
23. Taxes Payable By Tenant 17
24. Miscellaneous 17
25. Alterations By Landlord 18
26. Insurance 18
27. Attorney's Fees 19
28. Successors And Assigns 19
29. Surrender Of Lease 19
30. Captions 20
31. Sale By Landlord 20
32. Improvements To Premises 20
33. Energy Conservation 20
34. Late Charges 20
35. Additional Charges 21
36. Right to Expand 21
37. Landlord's Right To Xxxxxxxxx 00
00. Landlord's Right to Relocate 21
39. Security Deposit 21
Attachments
-----------
Exhibit "A" Premises
Exhibit "B" Work Letter
Exhibit "C" Rules and Regulations
i
1. Parties. 000 Xxxxxxx Xxxxxx Company, (a limited partnership),
Landlord, leases to Instant Video Technologies, Inc. (a Delaware corporation),
Tenant, those premises consisting of Suite 503 containing an aggregate of
approximately 2,328 rentable square feet, of that certain eight-story building
known as 000 Xxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx, which premises are
designated on Exhibit "A" attached hereto and made a part hereof. Said remises
are hereinafter called "premises".
2. Term. The term of this lease shall be for one (1) year commencing
February 16, 1993, and terminating February 15, 1994, inclusive. Tenant shall,
at least ninety (90) days before the expiration of the term of this lease, give
to Landlord written notice of Tenant's intention to surrender the premises upon
expiration of the term of this lease.
3. Use. The premises are to be used for business offices and for no
other business or purpose without the prior written consent of Landlord.
4. Rent And Other Payments. Tenant shall pay to Landlord without
deduction or offset, at 000 Xxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxxx
00000, or elsewhere as designated from time to time by Landlord's notice:
(a) Basic Rental.
(i) Upon execution of the lease, Twelve Thousand Four
Hundred Sixteen Dollars ($12,416.00 shall be deposited with Landlord, Three
Thousand One Hundred Four Dollars ($3,104.00) of which is to be applied as
rental for the first month's rent due and the balance held as security deposit
for the term of the lease.
(ii) Tenant shall pay to Landlord, without deduction
or offset, the sum of Three Thousand One Hundred Four Dollars ($3,104.00), as
basic rental for the premises, payable in advance promptly on the first day of
every calendar month of the term, and a pro rata
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portion thereof at the current rent for fractions of a month if the term shall
be commenced or terminated on any day other than the first or last day of any
month.
(b) Operating Costs and Taxes.
(i) Operating Costs. Tenant shall pay to Landlord, at
the time hereinafter set forth in this subparagraph (b), 1.577 percent (1.577%)
of any increase in Landlord's "operating costs" (as that term is hereinafter
defined) for the building in which the premises is located over such operating
costs for the calendar year 1993 ("base cost year").
The term "operating costs" shall mean those costs and
expenses of Landlord which, in accordance with generally accepted accounting
principles as applied to the management, operation and maintenance of office
building, are properly chargeable to the management, operation and maintenance
of the building in which the premises is located. Such expenses shall include
but not be limited to, all management office expenses and management fees,
repairs other than repairs constituting capital expenditures, garbage and waste
disposal, energy savings devices, insurance premiums (including earthquake
insurance premiums), license, permit and inspection fees, utility and sewer
usage taxes and charges (as distinguished from charges for utilities), heat,
light, water, power, steam, air conditioning and other services, janitorial
services, elevator and other maintenance contracts, security guards, and
facilities and contracts relating thereto.
(ii) Taxes. Tenant shall pay to Landlord, at the time
hereinafter set forth in this subparagraph (b), 1.577 percent (1.577%) of any
increase in property taxes (as that term is hereinafter defined) for the
building in which the premises is located over and above such property taxes for
the base year July 1, 1992 to June 30, 1993.
The term "property taxes" shall include but not be
limited to real and personal property taxes (secured and unsecured), any tax or
charge levied wholly or partly in lieu of real or personal property taxes,
general and special assessments, business taxes, gross receipts taxes, taxes or
charges on rentals (as distinguished from rents), governmental charges or levies
of any kind and nature for public improvements, services or benefits whether or
not such charges or levies became a lien on the premises and the cost of
contesting by appropriate proceedings the amount or validity of any of the
aforementioned taxes and charges; only
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excluding from the foregoing those taxes on the net income of Landlord commonly
referred to as income taxes, unless such income tax is in lieu of any of the
aforementioned taxes or charges, and taxes otherwise included in operating
costs. Should, at any time during the term of this lease, property taxes
decrease below the 1992-93 base year, Landlord shall adjust property tax base
rate to the then current tax base rate.
(iii) Estimated Monthly Payments. Tenant shall pay to
Landlord an amount estimated by Landlord to be Tenant's share of operating costs
and property taxes payable pursuant to this subparagraph (b) for the then
current year. Such payment shall be made on the first day of each month during
the term, commencing on the date the term commences or on the first day of the
month following the month the term commences if the term commences on a day
other than the first day of the month, and shall be one-twelfth (1/12th) of the
operating costs and property taxes which are estimated to be payable for the
then current year.
Landlord shall calculate such sum payable hereunder
based upon the operating costs and property taxes paid by Landlord during the
respective year immediately preceding the year in which the payment is to be
made hereunder. Landlord shall have the right to increase such calculations from
time to time based upon any changes in operating costs and property taxes.
(iv) Annual Determination and Adjustment. Within one
hundred-twenty (120) days after the end of each calendar year, including the
calendar year in which this lease expires or terminates, Landlord shall furnish
to Tenant a statement of the total operating costs and property taxes for the
calendar year and Tenant's share of any increases payable pursuant to this
subparagraph (b). If Tenant's share of any such increases exceeds the monthly
payments made by Tenant pursuant to this subparagraph (b), Tenant shall pay
Landlord the deficiency within ten (10) days after receipt of such statement;
and if Tenant's share of any such increases is less than the monthly payments
made by Tenant pursuant to this subparagraph (b), Landlord shall pay Tenant the
excess at the time Landlord furnished such statement to Tenant. Tenant shall
make such payments whether or not Tenant occupies the premises when such
payments are due.
The annual determination and statement of operating
costs and property taxes shall be made by a certified public accountant selected
by Landlord. The
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statement of said certified public accountant shall be final and binding upon
Landlord and Tenant.
(c) Tenant shall pay as additional rent, within ten (10) days
after Landlord renders statements of account therefore, any and all other sums
required to be paid under this lease whether or not the same may be designated
as additional rent.
5. Landlord shall provide:
(a) Janitorial Service. Janitorial service in and about the
premises. If Tenant or tenants who occupy an entire floor so desire, and if
Landlord agrees, said Tenant or tenants may provide his or their own janitorial
service subject always to the supervision of Landlord, but at the sole
responsibility and cost of Tenant or tenants.
(b) Heat, Air-Conditioning. When in Landlord's reasonable
judgment heat and/or air-conditioning is necessary for comfortable occupation of
the premises, it will be furnished during normal business hours, except on
Saturdays, Sundays and holidays, subject, however, to applicable governmental
laws, rules and regulations. Holidays are defined to include all of those days
so indicated in the contract negotiated by Building Owners and Managers
Association with the representative unions during the year, so long as such
holidays are reasonable in number and duration and heat and/or air-conditioning
will be provided on those days that the general business community of the area
is open for business. If Tenant desires HVAC during other than regular business
hours, Landlord shall use reasonable efforts to furnish such service upon a
twenty-four hour notice from Tenant and Tenant shall pay Landlord's charges
therefor on demand.
(c) Water. Water for ordinary purposes connected with Tenant's
stated use of the premises, drawn through fixtures installed by Landlord or by
Tenant with Landlord's written consent. Tenant shall pay at prevailing rates for
water used for any purpose other than ordinary purposes.
(d) Elevator Service. Elevator service will be furnished at
all times except when closed for repairs, maintenance or cleaning.
(e) Electricity. Except as provided in subparagraph (b) of
Xxxxxxxxx 0, Xxxxxxxx will make no charge for reasonable use of electric current
for lighting purposes,
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ordinary office machines and computer systems. Tenant shall pay for the quantity
used by Tenant beyond the normal business hours at rates fixed by the public
utility company furnishing electric current to the building in which the
premises is located. Tenant's failure to pay promptly Landlord's proper charges
for electricity shall entitle Landlord upon not less than ten (10) days' notice
to discontinue furnishing electric current to Tenant and no such discontinuance
shall be deemed an eviction or disturbance of Tenant's use of the premises, or
render Landlord liable for damages or relieve Tenant from performance of
Tenant's obligations.
(f) Toilet Facilities. Toilet facilities for both men and
women. Landlord does not warrant that any of the above mentioned, or Tenant's
possession, occupation or use of the premises will be free from interruptions
caused by repairs, renewals, improvements, alterations, strikes, lockouts,
accidents, inability of Landlord to obtain fuel or supplies, or other cause or
causes beyond the reasonable control of Landlord. Any such interruption of
service, or Tenant's possession, occupation or use of the premises, shall never
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,
or relieve Tenant from performance of Tenant's obligations under this lease.
(g) Normal Business Hours. Normal business hours for the
building are 7:00 a.m. to 6:00 p.m. Monday through Friday. Excepting legal
holidays, Landlord reserves the right to close and keep locked all entrance and
exit doors of the building at all other times and during such further hours as
Landlord may deem advisable for the adequate protection of the building and the
property of its Tenants.
6. Landlord's Title. Landlord's title is and always will be paramount
to the title of Tenant, and nothing herein contained shall empower Tenant to do
any act which can, shall or may encumber the title of Landlord.
7. Certain Rights Reserved Landlord. Landlord reserves the following
rights: (a) to change the name or street address of the premises without notice
or liability of Landlord to Tenant; (b) to designate all sources furnishing sign
painting and lettering, mineral water, towels and toilet supplies used on the
premises; (c) during the last ninety (90) days of the term or any
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part thereof, if during or prior to that time Tenant vacates the premises, to
decorate, remodel, repair, alter or otherwise prepare the premises for
occupancy; (d) to at all times have pass keys to the premises; (e) to grant the
exclusive right to conduct any particular business or undertaking in the
premises; (f) to provide such security in the building in which the premises is
located during normal business hours as in its discretion Landlord deems
necessary; (g) to enter the premises at all reasonable hours for inspections,
repairs, alterations or additions to the premises, and during the last one
hundred-eighty (180) days of this lease to exhibit the premises to others and to
display "For Rent" signs; and (h) to enter the premises for any purpose
whatsoever related to the safety, protection, and preservation of the premises
or Landlord's interest and to require temporary evacuation of all personnel from
the premises in the event of any emergency, whether real or threatened, all
without being deemed guilty of an eviction or disturbance of Tenant's use and
possession and without being liable in any manner to Tenant.
8. Default Under Other Lease. If the term of any lease, other than this
lease, made by Tenant in the premises, shall be terminated or terminable, after
the making of this lease, because of any default by Tenant under such other
lease, such fact shall empower Landlord, at Landlord's sole option, to terminate
this lease by notice to Tenant.
9. Waiver of Certain Claims. Landlord shall not be liable, and Tenant
waives all claims, for damages to person or property sustained by Tenant or any
occupant or visitor of or to the premises, resulting from the premises or any
part of it or any equipment or appurtenance becoming out of repair, or resulting
from any accident in or about the premises, or resulting directly or indirectly
from any act or neglect of any tenant or occupant of the premises or of any
other person including any act of Landlord or his agent in connection with
security in the building in which the premises is located, except that due to
Landlord's or his agents' willful misconduct or negligence. Without limiting the
generality of the foregoing, such limitation and waiver shall include damage
caused by water, snow, frost, steam, excessive heat or cold, sewage, gas odors
or noise or the bursting or leaking of pipes or plumbing fixtures and shall
apply equally whether any such damage results from the act or neglect of other
tenants, occupants or servants of the premises or of any other person, and
whether such damage be
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caused or result from any thing or circumstance above mentioned or referred to,
or any other thing or circumstance whether of a like nature or of a wholly
different nature. If any such damage results from any willful misconduct or
negligence of Tenant, Landlord may, at Landlord's option, repair such damage,
whether caused to the premises or to tenants thereof, and Tenant shall thereupon
pay to Landlord the total cost of such repairs and damages, both to the premises
and to the tenants thereof. Tenant covenants and agrees to indemnify and save
Landlord harmless against and from any and all loss, cost, damage, claim,
liability or expense including, but not limited to, reasonable attorney's fees,
arising out of or resulting from any injury or claim of injury of any nature or
sort whatsoever to any person or property suffered or received in or about the
premises at any time during the term hereof including any damage in connection
with security in the building in which the premises is located, or resulting
from any willful misconduct or negligence of Tenant in the premises which may
cause injury to persons or property outside of the premises, or arising out of
any failure of Tenant in any respect to comply with any of the requirements or
provisions of this lease; provided, however, such indemnity shall exclude
matters resulting from Landlord's willful misconduct or negligence. All personal
property belonging to Tenant or any occupant of the premises shall be there at
the risk of Tenant or such other person only, and Landlord shall not be liable
for any damage thereto or the theft or misappropriation thereof.
10. Holding Over. If tenant holds possession hereunder after expiration
of the terms of this lease, without prior written consent of Landlord, Tenant
shall, at the option of Landlord, become a tenant from month to month at a
monthly rate 50 percent (50%) higher than the then prevailing rental paid by
Tenant at the expiration of the term of this lease. The foregoing shall not be
considered a waiver of Landlord's rights of reentry or any other right
hereunder.
11. Assignment and Subletting.
(a) Tenant shall not (i) assign or convey this lease or any
interest under it; (ii) allow any transfer hereof or any lien upon Tenant's
interest by operation of law; (iii) sublet the premises or any part thereof, or
(iv) permit the use or occupancy of the premises or any part thereof by any one
other than Tenant; provided, however, Tenant may assign a Tenant's interest
7
in this lease with the prior written consent of Landlord, which consent shall
not be unreasonably withheld. Landlord, as a condition for Landlord's consent to
any assignment, may require the assignee to assume in writing all of the terms
and conditions of this lease on the part of Tenant to be performed. If Landlord
shall consent to any assignment, neither Tenant nor any assignee shall be
relieved of any liability hereunder and in the event of default by any assignee
in the performance of any of the terms hereof, no notice of such default or
demand of any kind need be served on Tenant or assignee to hold him or them
liable to Landlord. Landlord may consent to subsequent assignments without
notifying Tenant or any assignee and without obtaining his or their consent
thereto. Consent to any such assignment shall not operate as a waive of the
requirement of the consent of Landlord to any subsequent assignment.
(b) (i) In the event that Tenant shall, at any time or times
during the term of this lease, assign this lease or sublet all or part of the
premises, Tenant shall pay to Landlord an amount equal to 50 percent (50%) of
all bonus rent received by Tenant directly or indirectly in respect of such
assignment or sublease. For this purpose, "bonus rent" shall mean, in the case
of an assignment, all consideration so received in excess of the rents and
charges reserved under this lease, as reduced by the following costs and
expenses incurred in connection with the assignment or sublease: a reasonable
brokerage commission, reasonable attorneys' fees, reasonable advertising and
other costs, the cost of improvements installed by Tenant at its sole cost in
connection with a sublease, which cost shall, for purposes of calculating the
amount of bonus rent and the installments thereof payable to Landlord, be
amortized over a period beginning upon the effective date of the sublease and
ending upon the expiration of the term hereof, or if later, upon the date that
the term would end if Tenant exercised each and all of the options to extend the
term herein provided.
(ii) The aforesaid percentage of each payment or
installment of bonus rent shall be paid to Landlord at the time such payment or
installment is payable pursuant to the terms of the assignment, sublease or
other agreement or arrangement. The assignee or sublessee shall, upon assuming
the obligations of Tenant under this lease, become jointly and severally liable
to Landlord for the payment of Landlord's share of Bonus Rent.
(iii) In the event that Landlord and Tenant are
unable to agree on the amount of bonus rent, the amount thereof shall be
determined by an appraisal of 100 percent
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(100%) of the then fair market rental value of the premises or, in the event of
a sublease of less than all of the premises, the then fair market rental value
of the portion of the premises subleased.
12. Condition of Premises. Within fifteen (15) days after Tenant's
taking possession of the premises it shall be considered conclusive evidence as
against Tenant that the premises were in good order and satisfactory condition
when Tenant took possession. No promise of Landlord to alter, remodel or improve
the premises and no representation respecting the condition of the premises has
been made by Landlord to Tenant, unless the same is contained herein, or made a
part hereof by attachment as Exhibit "B", entitled "Work Letter". Tenant waives
all right to make repairs at the expense of Landlord, or to deduct the cost
thereof from the rent. This lease does not grant any rights to light, air or
view over property. At the termination of this lease by lapse of time or
otherwise, Tenant shall return the premises in as good condition as when Tenant
took possession, ordinary wear and loss by fire excepted; failing which,
Landlord shall restore to such condition and Tenant shall pay the cost thereof.
Tenant may remove any floor covering laid by Tenant, provided (a) Tenant also
removes all nails, tacks, paper, glue, bases and other vestiges of the floor
covering, and restores the floor surface to the condition existing before such
floor covering was laid, or (b) Tenant pays to Landlord, upon request, the cost
of restoring the floor surface to such condition. If Tenant does not remove
Tenant's floor coverings, radiator covers, drapes, built-in furniture and/or
appliances and other like equipment from the premises prior to the end of the
term, Tenant shall be conclusively presumed to have abandoned the same and title
thereto shall thereby pass to Landlord without payment or credit by Landlord to
Tenant.
13. Alterations. Tenant shall not make any alterations in or additions
to the premises without Landlord's prior written consent in each and every
instance, and, if such consent be sought, shall comply, before any work is done
or any materials are delivered on the premises or into the building in which the
premises is located, with Landlord's request for plans, specifications, names of
contractors, copies of contracts, necessary permits, and indemnification against
liens, costs, damages and expense of all kinds, and shall submit to Landlord's
9
supervision over operations during construction. Tenant shall notify Landlord in
writing at least five (5) days in advance of commencement of construction in
order to give Landlord time to post Notices of Non-responsibility, and Tenant
shall keep the premises free of any liens or encumbrances in any event. Tenant
shall carry adequate liability insurance to protect Landlord against any and all
damage or loss suffered by anyone resulting from any such alterations or
construction work; and said insurance policy or policies shall name Landlord as
an additional insured. All additions, hardware, fixtures or improvements,
temporary or permanent, except movable furniture and equipment belonging to
Tenant, in or upon the premises, whether installed by Tenant or Landlord, shall
be Landlord's property and shall remain upon the premises upon termination of
the term of this lease by lapse of time or otherwise, all without compensation,
allowance or credit to Tenant. Tenant shall have the right to remove said
movable furniture and equipment belonging to Tenant prior to the termination of
the term or Tenant's right of possession only if Tenant is then not in default.
Landlord shall have a lien on said moveable furniture and equipment to secure
the performance of Tenant's covenants hereunder, but such lien shall not deprive
Landlord of the right to attachment or any other creditor's rights given by law
in the absence of security, or other remedies provided in this lease.
14. Use of Premises. Tenant will occupy and use the premises during the
term for the purpose above specified and none other; will not exhibit, sell or
offer for sale on the premises any article or thing whatsoever (except those
articles and things essentially connected with the stated use of the premises)
without the prior written consent of Landlord; will not make or permit any use
of the premises which, directly or indirectly, is forbidden by public law,
ordinance or governmental regulation or which may be dangerous to life, limb or
property; will not use or permit the use of any loud speakers or other similar
devices or system or of any equipment or apparatus which may be heard outside
the premises and will comply with the rules and regulations attached hereto as
Exhibit "C" and made a part hereof, and such other reasonable rules and
regulations as Landlord may hereafter adopt and make known to Tenant by written
notice.
Tenant shall not do or permit anything to be done in or about the
premises nor bring or keep anything therein which will in any way increase the
existing rate of or affect any
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fire or other insurance upon the building in which the premises is located or
any of its contents, or cause any cancellation of any insurance policy covering
said building or any part thereof of any of its contents. Tenant shall not do or
permit anything to be done in or about the premises which will in any way
obstruct or interfere with the rights of other tenants or occupants of the
building in which the premises is located or injure or annoy them or use or
allow the premises to be used for any improper, immoral, unlawful or
objectionable purpose, nor shall Tenant cause, maintain or permit any nuisance
in, on or about the premises. Tenant shall not commit or suffer to be committed
any waste in or upon the premises. The provisions of this Paragraph 14 are for
the benefit of Landlord only and are not nor shall they be construed to be for
the benefit of any tenant or occupant of the building in which the premises is
located.
15. Repairs. Subject to the terms and provisions of Paragraph 16
hereof, Tenant shall, at Tenant's own expense, keep the premises in good order,
condition and repair during the term, including the replacement of all broken
glass with glass of the same size and quality, under the supervision and with
the approval of Landlord. If tenant does not make repairs promptly and
adequately, Landlord may, but need not, make repairs and Tenant shall pay
promptly the reasonable cost thereof. At any time or times, Landlord, either
voluntarily or pursuant to government requirement, may, at Landlord's own
expense, make repairs, alterations or improvements in or to the premises or any
part thereof, and, during operations, may close entrances, doors, corridors,
elevator or other facilities, all without any liability to Tenant by reason of
interference, inconvenience or annoyance. Landlord shall not be liable to tenant
for any expense, injury, loss or damage resulting from work done in or upon, or
the use of any adjacent or nearby building, land, street or alley. Tenant shall
pay Landlord for overtime and for other expense incurred in the event repairs,
alterations, decorating or other work in the premises are not made during
ordinary business hours at Tenant's request.
The foregoing provisions of this Paragraph 15 are subject to this
qualification: Tenant's obligation to replace broken glass shall be limited to
instances in which the breakage is caused by Tenant, Tenant's employees or other
persons under the control or supervision of Tenant.
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Notwithstanding the provisions above, Landlord shall repair and
maintain the structural portions of the building, including basic plumbing,
heating, air conditioning, ventilation and electrical systems.
16. Untenantability. In the event the premises or the building in which
the premises is located is damaged by fire or other casualty, Landlord shall
forthwith repair the same provided such repairs can be made within sixty (60)
days under the laws and regulations of the state, federal, county and municipal
authorities and this lease shall remain in full force and effect except that
Tenant shall be entitled to a proportionate reduction of rent while such repairs
are being made, such proportionate reduction to be based upon the extent to
which the making of such repairs shall interfere with the business carried on by
Tenant in the premises. If such repairs cannot be made within sixty (60) days,
Landlord shall have the option to either (a) repair and restore such damage,
this lease continuing in full force and effect, but the rent to be
proportionately reduced as hereinabove in this Paragraph 16 provided, or (b)
give notice to Tenant at any time within thirty (30) days after such damage
terminating this lease as of a date to be specified in such notice, which date
shall not be less than thirty (30) days nor more than sixty (60) days after the
giving of such notice. In the event of the giving of such notice, this lease
shall terminate on such date so specified in such notice and the rent, reduced
by any proportionate reduction based upon the extent, if any, to which same
damage interfered with the business carried on by Tenant in the premises, shall
be paid up to the date of such termination, Landlord agreeing to refund to
Tenant any rent theretofore paid for any period of time subsequent to such date.
Landlord shall not be required to repair any injury or damage by fire or other
cause to the property of Tenant, or to make any repairs or replacement of any
panelling, decorations, partitions, railing, ceilings, floor covering, or any
improvements installed on the premises by Tenant.
During the last twelve (12) months of the term of this Lease in the
event that the premises are damaged to such extent that they cannot reasonably
be repaired and restored within six (6) months following the casualty, then
Tenant shall have the right to terminate this Lease by written notice given to
Landlord not later than thirty (30) days after such casualty.
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The provisions of Section 1932, Subdivision 2, and 1933, Subdivision 4
of the Civil Code of California are hereby waived by Tenant.
17. Eminent Domain. If the whole or any substantial part of the
premises shall be taken or condemned by any competent authority for any public
use or purpose, the term of this lease shall end upon, and not before, the date
when the possession of the part so taken shall be required for such use or
purpose. Current rent shall be apportioned as of the date of such termination
but the entire award shall be the property of Landlord without apportionment and
Tenant shall have no claim against Landlord or the condemning authority for the
value of the unexpired term of this lease. Notwithstanding, Landlord will have
no interest in any award for Tenant's personal property, moving expenses, or
interruption of Tenant's business. Tenant waives the provisions of Sections
1265.110 through 1265.160 of the Code of Civil Procedure of California.
18. Compliance With Law.
(a) Tenant shall, at its sole cost and expense, comply with
all of the requirements of all municipal, state and federal authorities now in
force, or which may hereafter be in force, pertaining to the premises, and shall
faithfully observe in the use of the premises all municipal ordinances and state
and federal statutes now in force or which may hereafter be in force. The
judgement of any court of competent jurisdiction, or the admission of Tenant in
any action or proceeding against Tenant whether Landlord be a party thereto or
not, that Tenant has violated any such ordinance or statute in the use of the
premises, shall be conclusive of that fact as between Landlord and Tenant.
(b) Tenant shall, at its sole cost and expense, comply with
all federal, state or local laws from time to time in effect ("Environmental
Laws") concerning hazardous, toxic or radioactive materials ("Hazardous
Materials"), including but not limited to, chemicals known to cause cancer or
reproductive toxicity. Tenant shall not cause or permit the use, generation,
storage or disposal in or about the premises or the building in which the
premises is located of any Hazardous Materials, unless Tenant shall have
received Landlord's prior written consent therefor, which Landlord may withhold
or revoke at any time in its sole discretion. Tenant shall
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advise Landlord in writing of any use, generation, storage or disposal of
Hazardous Materials, and Tenant shall immediately notify Landlord of any
violation, inspection or enforcement proceeding under any Environmental Laws,
concerning Tenant or the premises, of which Tenant becomes aware. Tenant shall
make available to Landlord such information and records as Landlord may request
concerning the matters described in this subparagraph (b), and Tenant shall
permit Landlord to inspect the premises and any and all governmental agency
files and records relating to Tenant or the premises that concern Hazardous
Materials and to conduct investigations and tests concerning Hazardous
Materials. Tenant shall pay to Landlord as additional rental under this Lease,
within ten (10) days after Landlord sends Tenant an invoice therefor, the amount
of all costs and expenses incurred by Landlord by reason of Tenant's breach of
its obligations under this subparagraph or any investigation or tests done by
Landlord by reason of Tenant's use and occupancy of the premises.
19. Default.
(a) Except as otherwise provided in subparagraph (b) of this
paragraph 19, if Tenant breaches this lease or abandons the premises before the
end of the term or if Tenant's right to possession of the premises is terminated
by Landlord because of a breach of this lease by Tenant, this lease shall
terminate. Upon such termination Landlord may recover from Tenant (i) the worth
at the time of award of the unpaid rent which had been earned at the time of
termination; (ii) the worth at the time of award of the amount by which the
unpaid rent, which would have been earned after termination until the time of
award, exceeds the amount of such rental loss that Tenant proves could have been
reasonably avoided; (iii) 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 Tenant proves could be reasonably avoided; and
(iv) any other amount necessary to compensate Landlord for all the detriment
proximately caused by Tenant's failure to perform Tenant's obligations under the
lease or which in the ordinary course of events would be likely to result
therefrom.
Efforts by Landlord to mitigate the damage caused by Tenant's
breach of this lease shall not waive Landlord's right to recover damages under
this subparagraph (a).
14
(b) Should Landlord, following any breach or default under
this lease by Tenant, elect to keep this lease in full force and effect, with
Tenant retaining the right to possession of the premises (notwithstanding the
fact Tenant may have abandoned the premises), then besides all other rights and
remedies Landlord may have at law or equity, Landlord shall have the right to
enforce all of Landlord's rights and remedies under this lease, including, but
not limited to, Landlord's right to recover the rent as it becomes due under
this lease. Notwithstanding any such election to have this lease remain in full
force and effect, Landlord may at any time thereafter elect to terminate
Tenant's right to possession of the premises and thereby terminate this lease
for any previous breach or default which remains uncured or for any subsequent
breach or default.
For the purpose of this subparagraph (b), the following shall
not constitute termination of Tenant's right to possession; (i) acts of
maintenance or preservation or efforts to relet the premises; or (ii) the
appointment of a receiver upon initiative of Landlord to protect Landlord's
interest under this lease.
20. Insolvency or Bankruptcy. Either (a) the appointment of a receiver
to take possession of all or substantially all of the assets of Tenant or (b) an
assignment by Tenant for the benefit of creditors or (c) any action taken or
suffered by Tenant under any insolvency, bankruptcy or reorganization act, shall
constitute a breach of this lease by Tenant. Upon the happening of any such
event, this lease shall terminate five (5) days after written notice of
termination from Landlord to Tenant. In no event shall this lease be assigned or
assignable by operation of law or by voluntary or involuntary bankruptcy
proceedings or otherwise in no event shall this lease or any rights or
privileges hereunder be an asset of Tenant under any bankruptcy, insolvency or
reorganization proceedings.
21. Notices. All notices and demands which may or are required to be
given to Tenant shall be in writing and shall be delivered personally or sent by
United States Registered or Certified Mail, postage prepaid, addressed to Tenant
at the premises, or to such other address as may be designated by written notice
delivered by Tenant to Landlord. All notices and demands by Tenant to Landlord
shall be in writing and shall be delivered personally or sent by
15
United States Registered or Certified Mail, postage prepaid, addressed to
Landlord at 000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, or
at such other address as may be designated by written notice delivered by
Landlord to Tenant.
22. Subordination of Lease. This lease shall be subject and subordinate
at all times to all ground or underlying leases which may now exist or hereafter
be executed affecting the premises or any building in which the premises is
located or the land upon which the premises or said building is situated and to
the lien of any mortgages and deeds of trust (and any amendments thereof or
thereto) in any amount or amounts whatsoever now or hereafter placed on or
against the premises or building in which the premises is located or land on
which the premises or said building is situated, or on or against Landlord's
interest or estate herein or on or against any ground or underlying lease,
without the necessity of having further instruments on the part of Tenant to
effectuate such subordination. Notwithstanding the foregoing, Tenant covenants
and agrees to execute and deliver upon demand such further instruments
evidencing such subordination of this lease to such ground or underlying leases
and to the lien of any such mortgages or deeds of trust as may be required by
Landlord. If any mortgagee or beneficiary under a deed of trust elects to have
this lease superior to its mortgage or deed of trust, then upon delivery of
notice thereof to Tenant by Landlord, this lease shall be superior to the lien
of any such mortgage or deed of trust. Tenant hereby appoints Landlord the
Attorney-in-Fact of Tenant irrevocably to execute and deliver any instrument or
instruments for or in the name of Tenant required to effectuate any of the
foregoing.
Tenant agrees upon not less than ten (10) days prior request by
Landlord to execute, acknowledge and deliver to Landlord a statement in writing
certifying that this lease is unmodified and in full force and effect, (or if
there have been modifications that the same are in full force and effect as
modified and stating the modifications) and, if so, the dates to which the rent
and other charges have been paid in advance, if any, it being intended that any
such statement delivered pursuant to this paragraph 22 may be relied upon by any
prospective purchaser, mortgagee, or beneficiary under any deed of trust or any
assignee or successor to any thereof.
16
23. Taxes Payable by Tenant. Tenant shall pay, before delinquency, any
and all taxes levied or assessed and which become payable during the term hereof
upon Tenant's equipment, furniture, fixtures and other personal property located
in the premises.
24. Miscellaneous.
(a) No receipt of money by Landlord from Tenant after the
termination of this lease or after the service of any notice or after the
commencement of any suit, or after final judgment for possession of the
premises, shall reinstate, continue or extend the term of this lease or affect
any such notice, demand or suit.
(b) No waiver of any default of Tenant hereunder shall be
implied from any omission by Landlord to take any action on account of such
default if such default persists or be repeated, and no express waiver shall
affect any default other than the default specified in the express waiver and
that only for the time and to the extent therein stated. The validity or
unenforceability of any provision hereof shall not affect or impair any other
provision.
(c) In the absence of fraud, no person, firm or corporation,
or the heirs, legal representatives, successors and assigns, respectively,
thereof executing this lease as agent, trustee or in any other representative
capacity shall ever be deemed or held individually liable hereunder for any
reason or cause whatsoever.
(d) The words "Landlord" and "Tenant" wherever used in this
lease shall be construed to mean Landlords or Tenants in all cases where there
is more than one Landlord or Tenant, and the necessary grammatical changes
required to make the provisions hereof apply either to corporation or
individuals, men or women, shall in all cases be assumed as though in each case
fully expressed.
(e) Submission of this instrument for examination does not
constitute a reservation of or option for the premises. The instrument becomes
effective as a lease upon execution and delivery by both Landlord and Tenant.
(f) Tenant shall not allow any liens nor encumbrances to be
placed or remain against his property on the premises or against the premises,
insofar as such liens or encumbrances may be asserted by reason of Tenant's acts
or occupation or use of the premises. In case any taxing authority shall, during
the term of this lease or any extension thereof, levy
17
or assess against the above described area or space occupied by Tenant or
against the rent herein reserved or the interest of Tenant hereunder, any
character of tax (except income tax), assessment against the same by such taxing
authority, then and in that event, Tenant shall, in addition to the rent herein
reserved pay to Landlord on demand the amount of such tax, assessment or
license.
(g) Tenant covenants and agrees that if the display of any
article exhibited by him in the show windows on the outside, in or about said
premises, or the display of any signs or placards in or on the premises at any
time or times during the term hereof shall be objected to by Landlord, and if
notice in writing is given by Landlord or its agents of said objection or
objections, Tenant will immediately and as often as such notices are received,
remove such display or such articles or signs or placards objected to and
failing so to do, expressly agrees that Landlord or its agents may enter the
premises, remove the article, sign or placard objected to, using such force as
may be necessary so to do without being deemed guilty of any forcible entry,
detainer or trespass.
(h) Provisions inserted herein or affixed hereto shall not be
valid unless appearing in the duplicate original hereof held by Landlord. In the
event of variation or discrepancy, Landlord's duplicate shall control.
(i) Time is of the essence in this lease.
25. Alterations by Landlord. Landlord is not obligated to make any
alterations or improvements in the premises for the benefit of Tenant (except as
hereinafter expressly provided in Paragraph 32).
26. Insurance. Throughout the term hereof, Tenant shall procure and
maintain public liability insurance, naming Landlord and Landlord's Agent as
coinsured, in the sum of $500,000 for injury or death to any one person and
$1,000,000 for injury or death to more than one person or damage to the property
in any one occurrence covering the premises. In the event Tenant fails to
procure and maintain such insurance in force through the term hereof, Landlord
may, at its election, procure insurance of such coverage at the expense of
Tenant, and the sums
18
paid by Landlord therefor shall be considered as rent and added to the rental
due for the month immediately following the procurement thereof.
All insurance required hereunder shall:
(a) Contain an endorsement requiring twenty (20) days' written
notice from the insurance company to both Landlord and Tenant before
cancellation or change in the coverage, scope or amount of any policy;
(b) Be issued by insurance companies authorized to do business
in the State of California with a financial rating of at least an A-X status as
rated in the most recent edition of Best's Insurance Reports; and
(c) Be issued as a primary policy. Each policy, or a
certificate of the policy, together with evidence of payment of premiums, shall
be delivered to Landlord and Landlord's Agent at the commencement of the term,
and on renewal of the policy not less than twenty (20) days before expiration of
the term of the policy.
27. Attorney's Fees. In case suit shall be brought for any unlawful
detainer of the premises or for the recovery of any rent due under the
provisions of this lease or because of the breach of any other covenant herein
contained on the part of Tenant or Landlord to be performed, the party
prevailing in such suit shall be entitled to its reasonable attorneys' fees to
be paid by the unsuccessful party which fee shall be fixed by the court.
28. Successors and Assigns. The covenants and conditions herein
contained shall, subject to the provisions as to assignment, apply to and bind
the heirs, successors, executors, administrators and assigns of all the parties
hereto; and the respective parties hereto shall be jointly and severally liable
hereunder.
29. Surrender of Lease. The voluntary or other surrender of this lease
by Tenant, or a mutual cancellation thereof, shall not work a merger, and shall,
at the option of Landlord, terminate all or any existing subleases or
subtenancies, or may, at the option of Landlord, operate as an assignment to
Landlord of any or all such subleases or subtenancies.
19
30. Captions. The captions of this lease are for convenience only and
are not a part of this lease and do not in any way limit or amplify the terms
and provisions of this lease.
31. Sale by Landlord. In the event of a sale or conveyance by Landlord
of the building in which the premises is located, the same shall operate to
release and relieve Landlord from any future liability upon any of the covenants
or conditions, express or implied, herein contained in favor of Tenant, and in
such event, Tenant agrees to look solely to the responsibility of the successor
in interest of Landlord in and to this lease.
32. Improvements to Premises. Space to be taken in "as is" condition.
33. Energy Conservation. Tenant and Tenant's employees and agents shall
participate in any energy conservation program established by Landlord, which
program may include such procedures as turning off lighting when not needed and
office machines when not used. In the event of a mandatory conservation program,
Tenant shall comply with such program.
34. Late Charges. Tenant acknowledges that late payment by Tenant to
Landlord of rent will cause Landlord to incur costs not contemplated by this
lease, the exact amount of such costs being extremely difficult and
impracticable to fix. Such costs may include, without limitation, processing and
accounting charges and late charges that may be imposed on Landlord by the terms
of any note or encumbrance covering the premises. Accordingly, if any
installment of rent due from Tenant is not received by Landlord when due, Tenant
shall pay to Landlord an additional sum of 6 percent (6%) of any such overdue
rent payment as a late charge. The parties agree that the late charge represents
a fair and reasonable estimate of the cost that Landlord will incur by reason of
late payment by Tenant. Acceptance of any late charge by Landlord shall not
constitute a waiver of Tenant's default with respect to the overdue amount or
prevent Tenant from exercising any of the other rights and remedies available to
Landlord.
35. Additional Charges. Tenant shall pay to Landlord upon demand, but
no later than the next rental payment, any charges occasioned by Tenant's
business or use of the premises
20
which result in additional costs or charges to Landlord not otherwise provided
hereunder. Such costs and charges shall include, but not be limited to, the
charges for security services in addition to those otherwise provided by
Landlord.
36. Right to Expand. Lessor will make its best effort to accommodate
Lessee's possible expansion desires during the term of the lease. In the event
larger accommodations are secured within the 000 Xxxxxxx Xxxxxx Building during
the term of this lease, the lease for this larger space will supersede the lease
for Suite 503 and the lease for Suite 503 will become null and void.
37. Landlord's Right to Terminate. If Landlord determines to demolish
the building in which the premises is located, or undertake a major remodeling
of 50 percent (50%) or more of the office space in such building, then, in
either event, Landlord shall have the right, exercisable at any time, to
terminate and cancel this lease without penalty or compensation. Landlord shall
exercise its right to terminate by written notice to Tenant given at least
one-hundred-eighty (180) days prior to the effective date of termination, which
notice shall be accompanied by a copy of a building or demolition permit
authorizing Landlord to demolish or remodel the building.
38. Landlord's Right to Relocate. Landlord, at Landlord's sole cost and
expense, shall reserve the right to relocate Tenant to a different location
within the building.
39. Security Deposit. As stated in Paragraph 4 (a) above, the Tenant
shall deposit with Landlord a security deposit in the amount of Nine Thousand
Three Hundred Twelve Dollars ($9,312.00) for the performance by Tenant of the
provisions of this lease. If Tenant is in default, Landlord can use security
deposit, or any portion of it, to cure the default or to compensate Landlord for
any damage sustained by Landlord resulting from Tenant's default. Tenant shall
immediately on demand pay to Landlord a sum equal to the portion of the security
deposit expended or applied by Landlord as provided in this paragraph so as to
maintain the security deposit in the sum initially deposited with Landlord.
Landlord's obligations with
21
respect to the security deposit are those of a debtor and not a trustee.
Landlord can maintain the security deposit separate and apart from Landlords's
general funds or can commingle the security deposit with Landlord's general and
other funds. Landlord shall not be required to pay Tenant interest on the
security deposit.
IN WITNESS WHEREOF, the parties have executed and delivered this Lease
as of the day and year first above written.
LANDLORD:
000 XXXXXXX XXXXXX COMPANY,
a limited partnership
By: L&B INSTITUTIONAL PROPERTY
MANAGERS OF CALIFORNIA, INC.,
a California corporation, Its
Managing Agent
By: /s/ Xxxxx Xxxxxx
-----------------------------------------
Its: Senior Vice President
----------------------------------------
Name: Xxxxx Xxxxxx
---------------------------------------
TENANT:
INSTANT VIDEO TECHNOLOGIES, INC.
a Delaware co ration,
By: /s/ Xxxxx Xxx Xxxx
-----------------------------------------
Its: Chief Executive Officer
----------------------------------------
Name: Xxxxx Xxx Xxxx
---------------------------------------
22
EXHIBIT "A"
[GRAPHIC OMITTED]
EXHIBIT "B"
WORK LETTER
Space to be taken in "as is" condition.
EXHIBIT "C"
RULES AND REGULATIONS
A. The Tenant shall not display, inscribe, print, paint, maintain or
affix on any place in or about the premises any sign, notice, legend, direction,
figure or advertisement, except on the doors of the premises and on the
Directory Boards of the building and floors and then only such name or names and
matter, and in such color, size, style, place and material as shall first have
been approved by the Landlord in writing.
B. The Tenant shall not advertise the business, profession, or
activities of the Tenant conducted in the building in any manner which violates
the letter or spirit of any code of ethics adopted by any recognized association
or organization pertaining to such business, profession or activities, and shall
not use the address of the premises for any purpose other than that of the
business address of the Tenant and shall never use any picture or likeness of
the premises in any circulars, notices, advertisements or correspondence without
the Landlord's express consent in writing. Any violation of this Rule may be
restrained by injunction.
C. The Tenant shall not obstruct, or use for storage, or for any
purpose other than ingress and egress, the sidewalks, entrances, passages,
courts, corridors, vestibules, halls, elevators, and stairways of the building.
D. No bicycle or other vehicle and no animal or bird shall be brought
or permitted to be in the building or any part thereof.
E. The Tenant shall not make or permit any noise or odor that is
objectionable to other occupants of the premises to emanate from the premises,
and shall not create or maintain a nuisance thereon, and shall not disturb,
solicit or canvass any occupant of the building, and shall not do any act
tending to injure the reputation of the premises.
F. The Tenant shall not install or operate any phonograph, musical
instrument or similar devise on the premises, or any antennae, aerial wires or
other equipment inside the premises, without, in each and every instance, prior
approval in writing by the Landlord to the end that others shall not be
disturbed or annoyed.
G. The Tenant shall not place or permit to be placed any article of any
kind on the outside window ledges or elsewhere on the exterior walls, and shall
not throw or drop or permit to be thrown or dropped any article from any window
of the building.
H. The Tenant shall not waste water by tying, wedging or otherwise
fastening open any faucet.
I. No additional locks or similar devises shall be attached to any door
or window. No keys for any door other than those provided by the Landlord shall
be made. If more that two keys for one lock are desired by the Tenant, the
Landlord may provide the same upon payment by the Tenant. Upon termination of
this lease or of the Tenant's possession, the Tenant shall surrender all keys of
the premises and shall make known to the Landlord the explanation of all
combination locks on safes, cabinets, and vaults.
Exhibit C
Building Rules and Regulations
Page 2
J. The Tenant shall be responsible for the locking of doors and the
closing of transoms and windows in and to the premises. Any damage resulting
from neglect of this Rule shall be paid for by the Tenant.
K. If the Tenant desires telegraphic, telephonic, burglar alarm, or
signal devise, the Landlord will, upon request, direct where and how connections
and wiring for such service shall be introduced and run. Without such direction,
no boring, cutting or installation of wires or cables is permitted.
L. If the Tenant desires and the Landlord permits blinds, shades,
awnings, or other form of inside or outside covering, or window ventilation or
similar devises, they shall be furnished and installed at the expense of the
Tenant and must be of such shape, color, material, and make as are approved by
the Landlord.
M. All persons entering or leaving the premises may be required to
identify themselves to a watchman by registration or otherwise and to establish
their rights to enter and leave the premises. The Landlord may exclude or expel
any peddler, solicitor or beggar at any time.
N. Tenant shall hire furniture and equipment movers with substantial
experience and reputation in moving furniture and equipment in and out of office
buildings and Tenant shall be required to obtain Landlord's written consent
prior to such hiring. Tenant shall be liable to Landlord for all damages to the
building caused by such moving.
0. The Tenant shall not overload any floor. The Landlord may direct the
routing and location of safes and other heavy articles. Safes, furniture, and
all large articles shall be brought through the building and into the premises
at such times and in such manner as the Landlord shall direct at the Tenant's
sole risk and responsibility. The Tenant shall list all furniture, equipment,
and similar articles to be removed from the building, and the list must be
approved by the Landlord before building employees will permit any article to be
removed.
P. Unless the Landlord gives advance written consent in each and every
instance, the Tenant shall not install or operate any steam or internal
combustion engine, boiler, machinery, refrigerating or heating devise or
air-conditioning apparatus in or about the premises, or carry on any mechanical
business therein, or use the premises for lodging, sleeping purposes, or use any
illumination other than electric light, or use of permit to be brought onto the
premises any inflammable oils or explosives or other articles deemed extra
hazardous to life, limb or property.
Q. The Tenant shall not place or allow any thing to be against or near
the glass of partitions of doors of the premises which may diminish the light
in, or be unsightly from the halls or corridors.
R. Tenant shall not leave windows open when it rains, and shall be
liable to Landlord and other tenants for any damages to the building or property
of other tenants resulting from rain coming into the building through open
windows. Tenant shall see that the windows and doors of said demised premises
are closed and securely locked before leaving the building. In addition to the
waiver of any of the Landlord's liability in Paragraph 9., it is further
Exhibit C
Building Rules & Regulations
Page 3
specifically provided that Landlord is not liable for any damage resulting to
Tenant's property as the result of windows being left open.
S. All deliveries to Tenant shall be made at and through the delivery
entrance and nowhere else and Tenant shall advise all parties intending to make
deliveries to Tenant to this Rule.
T. Landlord shall not be responsible to Tenant or to any other person
for the nonobservance or violation of these rules and regulations by any other
tenant or other person. Tenant shall be deemed to have read these rules and to
have agreed to abide by them as a condition to its occupancy.
FIRST AMENDMENT TO LEASE
This First Amendment to Lease (this "First Amendment") is entered into
as of the 9th day of February, 1994 by and between 000 Xxxxxxx Xxxxxx Company, a
limited partnership ("Landlord") and Instant Video Technologies, Inc., a
Delaware corporation ("Tenant"), based upon the following facts, understandings
and agreements:
A. Landlord and Tenant entered into a written lease (the "Lease") dated
February 15, 1993, whereby Landlord leased to Tenant and Tenant hired from
Landlord, certain premises on the fifth floor designated as Suite 503 containing
an aggregate of approximately 2,328 rentable square feet, of that certain
eight-story building known as 000 Xxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx (the
"Leased Premises").
B. Landlord and Tenant now desire to further amend the Lease as
hereinafter provided.
NOW, THEREFORE, in consideration of the mutual promises contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Landlord and Tenant agree as
follows:
1. Definitions. All defined terms not otherwise defined herein shall
have the same meaning as in the Lease.
2. Amendment of Section 2. The first sentence of Section 2 is hereby
deleted and replaced with the following sentence:
Term. The term of this lease shall be extended for six (6) months
commencing February 16, 1994, and terminating August 15, 1994.
3. Conflict. In the event of any conflict between the provisions of the
Lease and this First Amendment to Lease, the provisions of the First Amendment
to Lease shall govern.
4. Ratification. The Lease as modified by this First Amendment to Lease
is ratified in all respects.
IN WITNESS WHEREOF, the parties have executed this First Amendment to
Lease as of the date first hereinabove written.
LANDLORD: 000 XXXXXXX XXXXXX COMPANY,
a limited partnership
By: L&B INSTITUTIONAL PROPERTY
MANAGERS OF CALIFORNIA, INC.,
its managing agent
By: /s/ Xxxxx Xxxxxx
-----------------------------------
Xxxxx Xxxxxx, Xx. Vice President
TENANT: INSTANT VIDEO TECHNOLOGIES, INC.,
a Delaware corporation
By: /s/ Xxxxxxx Xxxx
-----------------------------------
Xxxxxxx Xxxx, Chairman & CEO
SECOND AMENDMENT TO LEASE
This Second Amendment to Lease (this "Second Amendment") is entered
into as of the 9th day of June, 1994 by and between 000 Xxxxxxx Xxxxxx Company,
a limited partnership ("Landlord") and Instant Video Technologies, Inc., a
Delaware corporation ("Tenant"), based upon the following facts, understandings
and agreements:
A. Landlord and Tenant entered into a written lease (the "Lease") dated
February 15, 1993, whereby Landlord leased to Tenant and Tenant hired from
Landlord, certain premises on the fifth floor designated as Suite 503 containing
an aggregate of approximately 2,328 rentable square feet, of that certain
eight-story building known as 000 Xxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx (the
"Leased Premises"). Landlord and Tenant also entered into a First Amendment to
Lease (the "First Amendment") dated February 9, 1994, whereby Tenant extended
the Lease by an additional six (6) months, terminating August 15, 1994.
B. Landlord and Tenant now desire to further amend the Lease as
hereinafter provided.
NOW, THEREFORE, in consideration of the mutual promises contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Landlord and Tenant agree as
follows:
1. Definitions. All defined terms not otherwise defined herein shall
have the same meaning as in the Lease.
2. Amendment of Section 2. The first sentence of Section 2 is hereby
deleted and replaced with the following sentence:
Term. The term of this lease shall be extended for an additional six
(6) months commencing August 16, 1994, and terminating February 15, 1995
3. Conflict. In the event of any conflict between the provisions of the
Lease, the First Amendment to Lease, or this Second Amendment to Lease, the
provisions of the Second Amendment to Lease shall govern.
4. Ratification. The Lease as modified by this Second Amendment to
Lease is ratified in all respects.
IN WITNESS WHEREOF, the parties have executed this Second Amendment to
Lease as of the date first hereinabove written.
LANDLORD: 000 XXXXXXX XXXXXX COMPANY,
a limited partnership
By: L&B INSTITUTIONAL PROPERTY
MANAGERS OF CALIFORNIA, INC.,
its managing agent
By: /S/ Xxxxx Xxxxxx
-----------------------------------
Xxxxx Xxxxxx, Xx. Vice President
TENANT: INSTANT VIDEO TECHNOLOGIES, INC.,
a Delaware corporation
By: /s/ Xxxxxxx Xxxx
-----------------------------------
Name: Xxxxxxx Xxxx
-----------------------------------
Its: Chairman + CEO
-----------------------------------
THIRD AMENDMENT TO LEASE
This Third Amendment to Lease (this "Third Amendment") is entered into
as of the 13th day of January, 1995 by and between 000 Xxxxxxx Xxxxxx Company, a
limited partnership ("Landlord") and Instant Video Technologies, Inc., a
Delaware corporation ("Tenant"), based upon the following facts, understandings
and agreements:
A. Landlord and Tenant entered into a written lease (the "Lease") dated
February 15, 1993, whereby Landlord leased to Tenant and Tenant hired from
Landlord, certain premises on the fifth floor designated as Suite 503 containing
an aggregate of approximately 2,328 rentable square feet, of that certain
eight-story building known as 000 Xxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx (the
"Leased Premises"). Landlord and Tenant entered into a First Amendment to Lease
(the "First Amendment") dated February 9, 1994, whereby Tenant extended the
Lease by an additional six (6) months terminating August 15, 1994, and a Second
Amendment to Lease (the "Second Amendment") dated June 9, 1994, whereby Tenant
extended the Lease by an additional six (6) months terminating February 15,
1995.
B. Landlord and Tenant now desire to further amend the Lease as
hereinafter provided.
NOW, THEREFORE, in consideration of the mutual promises contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Landlord and Tenant agree as
follows:
1. Definitions. All defined terms not otherwise defined herein shall
have the same meaning as in the Lease.
2. Amendment of Section 2. The first sentence of Section 2 is hereby
deleted and replaced with the following sentence:
Term. The term of this lease shall be extended for an additional six
(6) months commencing February 16, 1995, and terminating August 15, 1995.
3. Conflict. In the event of any conflict between the provisions of the
Lease, the First Amendment to Lease, the Second Amendment to Lease, or this
Third Amendment to Lease, the provisions of the Third Amendment to Lease shall
govern.
4. Ratification. The Lease as modified by this Third Amendment to Lease
is ratified in all respects.
//
//
//
//
//
//
//
//
//
//
IN WITNESS WHEREOF, the parties have executed this Third Amendment to
Lease as of the date first hereinabove written.
LANDLORD: 000 XXXXXXX XXXXXX COMPANY,
a limited partnership
By: L&B INSTITUTIONAL PROPERTY
MANAGERS OF CALIFORNIA, INC.,
its managing agent
By: /s/ Xxxxx Xxxxxx
---------------------------------
Xxxxx Xxxxxx, Xx. Vice President
TENANT: INSTANT VIDEO TECHNOLOGIES, INC.,
a Delaware corporation
By: /s/ Xxxxxxx Xxxx
---------------------------------
Name: Xxxxxxx Xxxx
---------------------------------
Its: Chairman + CEO
---------------------------------
FOURTH AMENDMENT TO LEASE
This Fourth Amendment to Lease (this "Fourth Amendment") is entered
into as of the 12th day of June, 1995 by and between 000 Xxxxxxx Xxxxxx Company,
a limited partnership ("Landlord") and Instant Video Technologies, Inc., a
Delaware corporation ("Tenant"), based upon the following facts, understandings
and agreements:
A. Landlord and Tenant entered into a written lease (the "Lease") dated
February 15, 1993, whereby Landlord leased to Tenant and Tenant hired from
Landlord, certain premises on the fifth floor designated as Suite 503 containing
an aggregate of approximately 2,328 rentable square feet, of that certain
eight-story building known as 000 Xxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx (the
"Leased Premises"). Landlord and Tenant entered into a First Amendment to Lease
(the "First Amendment") dated February 9, 1994, whereby Tenant extended the
Lease by an additional six (6) months terminating August 15, 1994, a Second
Amendment to Lease (the "Second Amendment") dated June 9, 1994, whereby Tenant
extended the Lease by an additional six (6) months terminating February 15,
1995, and a Third Amendment to Lease (the "Third Amendment") dated January 13,
1995, whereby Tenant extended the Lease by an additional six (6) months
terminating August 15, 1995.
B. Landlord and Tenant now desire to further amend the Lease as
hereinafter provided.
NOW, THEREFORE, in consideration of the mutual promises contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Landlord and Tenant agree as
follows:
1. Definitions. All defined terms not otherwise defined herein shall
have the same meaning as in the Lease.
2. Amendment of Section 2. The first sentence of Section 2 is hereby
deleted and replaced with the following sentence:
Term. The term of this lease shall be extended for an additional six
(6) months commencing August 16, 1995, and terminating February 15, 1996.
3. Conflict. In the event of any conflict between the provisions of the
Lease, the First Amendment to Lease, the Second Amendment to Lease, the Third
Amendment to Lease, or this Fourth Amendment to Lease, the provisions of the
Fourth Amendment to Lease shall govern.
4. Ratification. The Lease as modified by this Fourth Amendment to
Lease is ratified in all respects.
//
//
//
//
//
//
//
IN WITNESS WHEREOF, the parties have executed this Fourth Amendment to
Lease as of the date first hereinabove written.
LANDLORD: 000 XXXXXXX XXXXXX COMPANY,
a limited partnership
By: L&B INSTITUTIONAL PROPERTY
MANAGERS OF CALIFORNIA, INC.,
its managing agent
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Xxxxxx X. Xxxxxxx
President and COO
TENANT: INSTANT VIDEO TECHNOLOGIES, INC.,
a Delaware Corporation
By: /s/ Xxxx X. Xxxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxxx
---------------------------------
Its: President/CEO
---------------------------------
FIFTH AMENDMENT TO LEASE
This Fifth Amendment to Lease (this "Fifth Amendment") is entered into
as of the 13th day of February, 1996 by and between 000 Xxxxxxx Xxxxxx Company,
a limited partnership ("Landlord") and Instant Video Technologies, Inc., a
Delaware corporation ("Tenant"), based upon the following facts, understandings
and agreements:
A Landlord and Tenant entered into a written lease (the "Lease") dated
February 15, 1993, whereby Landlord leased to Tenant and Tenant hired from
Landlord, certain premises on the fifth floor designated as Suite 503 containing
an aggregate of approximately 2,328 rentable square feet, of that certain
eighty-story building known as 000 Xxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx
(the "Leased Premises"). Landlord and Tenant entered into a First Amendment to
Lease (the "First Amendment") dated February 9, 1994, whereby Tenant extended
the Lease by an additional six (6) months terminating August 15, 1994, a Second
Amendment to Lease (the "Second Amendment") dated June 9, 1994, whereby Tenant
extended the Lease by an additional six (6) months terminating February 15,
1995, a Third Amendment to Lease (the "Third Amendment") dated January 13, 1995,
whereby Tenant extended the Lease by an additional six (6) months terminating
August 25, 1995, and a Fourth
-1-
Amendment to Lease (the "Fourth Amendment") dated June 12, 1995, whereby Tenant
extended the Lease by an additional six (6) months terminating February 15,
1996.
B. Landlord and Tenant now desire to further amend the lease as
hereinafter provided.
NOW, THEREFORE, in consideration of the mutual promises contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Landlord and Tenant agree as
follows:
1. Definitions. All defined terms not otherwise defined herein shall
have the same meaning as in the lease.
2. Amendment of Section 2. The first sentence of Section 2 is hereby
deleted and replaced with the following sentence:
Term. The term of this lease shall be extended for an additional six
(6) months commencing February 16, 1996, and terminating Auguat 15, 1996.
3. Conflict. In the event of any conflict between the provisions of the
Lease, the First Amendment to Lease, the Second Amendment to Lease, the Third
Amendment to Lease, the Fourth Amendment to Lease, or this Fifth Amendment to
Lease, the provisions of the Fifth Amendment to Lease shall govern.
4. Ratification. The Lease as modified by this Fifth Amendment to Lease
is ratified in all respects.
//
//
//
-2-
IN WITNESS WHEREOF, the parties have executed this Fifth Amendment to
Lease as of the date first hereinabove written.
LANDLORD: 000 XXXXXXX XXXXXX COMPANY,
a limited partnership
By: L&B INSTITUTIONAL PROPERTY
MANAGERS OF CALIFORNIA, INC.,
its managing agent
By: /s/ Xxxx X. Xxxxxxx
---------------------------------
Xxxx X. Xxxxxxx
Authorized Signatory
TENANT: INSTANT VIDEO TECHNOLOGIES, INC.,
a Delaware Corporation
By: /s/ Xxxx X. Xxxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxxx
---------------------------------
Its: President/CEO
---------------------------------
-3-
SIXTH AMENDMENT TO LEASE
This Sixth Amendment to Lease (this "Sixth Amendment") is entered into
as of the 2nd day of August, 1996 by and between 000 Xxxxxxx Xxxxxx Company, a
limited partnership ("Landlord") and Instant Video Technologies, Inc., a
Delaware corporation ("Tenant"), based upon the following facts, understandings
and agreements:
A. Landlord and Tenant entered into a written lease (the "Lease") dated
February 15, 1993, whereby Landlord leased to Tenant and Tenant hired from
Landlord, certain premises on the fifth floor designated as Suite 503 containing
an aggregate of approximately 2,328 rentable square feet, of that certain
eight-story building known as 000 Xxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx (the
"Leased Premises"). Landlord and Tenant entered into a First Amendment to Lease
(the "First Amendment") dated February 9, 1994, whereby Tenant extended the
Lease by an additional six (6) months terminating August 15, 1994, a Second
Amendment to Lease (the "Second Amendment") dated June 9, 1994, whereby Tenant
extended the Lease by an additional six (6) months terminating February 15,
1995, a Third Amendment to Lease (the "Third Amendment") dated January 13, 1995,
whereby Tenant extended the Lease by an additional six (6) months terminating
August 15, 1995, a Fourth
-1-
Amendment to Lease (the "Fourth Amendment") dated June 12, 1995, whereby Tenant
extended the Lease by an additional six (6) months terminating February 15,
1996, and a Fifth Amendment to Lease (the "Fifth Amendment") dated February 13,
1996, whereby Tenant extended the Lease by an additional six (6) months
terminating August 15, 1996.
B. Landlord and Tenant now desire to further amend the Lease as
hereinafter provided.
NOW, THEREFORE, in consideration of the mutual promises contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Landlord and Tenant agree as
follows:
1. Definitions. All defined terms not otherwise defined herein shall
have the same meaning as in the Lease.
2. Amendment of Section 2. The first sentence of Section 2 is hereby
deleted and replaced with the following sentence:
Term. The term of this lease shall be extended for an additional six
(6) months commencing august 16, 1996, and terminating February 15, 1997.
3. Conflict. In the event of any conflict between the provisions of the
Lease, the First Amendment to Lease, the Second Amendment to Lease, the Third
Amendment to Lease, the Fourth Amendment to Lease, the Fifth Amendment to Lease
or this Sixth Amendment to Lease, the provisions of the Sixth Amendment to Lease
shall govern.
-2-
4. Ratification. The Lease as modified by this Sixth Amendment to Lease
is ratified in all respects.
IN WITNESS WHEREOF, the parties have executed this Sixth Amendment to
Lease as of the date first hereinabove written.
LANDLORD: 000 XXXXXXX XXXXXX COMPANY,
a limited partnership
By: L&B INSTITUTIONAL PROPERTY
MANAGERS OF CALIFORNIA, INC.,
its managing agent
By: /s/ Xxxx X. Xxxxxxx
---------------------------------
Xxxx X. Xxxxxxx
Authorized Signatory
TENANT: INSTANT VIDEO TECHNOLOGIES, INC.
a Delaware corporation
BY: /s/ Xxxx X. Xxxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxxx
---------------------------------
Its: President/CEO
---------------------------------
-3-
SEVENTH AMENDMENT TO LEASE
This Seventh Amendment to Lease (the "Seventh Amendment") is entered
into as of the 1st day of May, 1997 by and between 000 Xxxxxxx Xxxxxx Company, a
limited partnership ("Landlord"), and Instant Video Technologies, Inc., a
Delaware corporation ("Tenant"), based upon the following facts, understandings
and agreements:
A. Landlord and Tenant entered into a written lease dated February 15,
1993, as amended by that certain First Amendment to Lease dated February 9, 1994
between Landlord and Tenant, that certain Second Amendment to Lease dated June
9, 1994 between Landlord and Tenant, that certain Third Amendment to Lease dated
January 13, 1995 between Landlord and Tenant, that certain Fourth Amendment to
Lease dated June 12, 1995 between Landlord and Tenant, that certain Fifth
Amendment to Lease dated February 13, 1996 between Landlord and Tenant, and that
certain Sixth Amendment to Lease dated August 2, 1996 between Landlord and
Tenant (as amended, the "Lease"), whereby Landlord leased to Tenant and Tenant
hired from Landlord certain premises designated as Xxxxx 000, containing
approximately 2,328 rentable square feet (the "Original Premises") on the fifth
floor of that certain eight-story building known as 000 Xxxxxxx Xxxxxx, Xxx
Xxxxxxxxx, Xxxxxxxxxx (the "Building").
-1-
B. Landlord and Tenant desire to extend the term of the Lease, Tenant
desires to expand its Original Premises into an adjacent space containing
approximately 1,140 rentable square feet known as Suite 505 in the Building (the
"Expansion Premises"), and Landlord and Tenant desire to otherwise amend the
Lease as hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the respective
undertakings of the parties hereinafter set forth, it is hereby agreed that the
Lease shall be amended as follows:
1. Defined Terms. All defined terms used herein and not otherwise
defined shall have the meanings given to such terms in the Lease.
2. Leasing of Expansion Premises. Landlord hereby leases to Tenant and
Tenant hereby hires from Landlord the Expansion Premises for the term, at the
rental and upon all of the conditions and agreements described herein. Unless
otherwise provided in this Seventh Amendment or required by the context of the
Lease as amended hereby, from and after the date hereof, Tenant shall observe or
perform, with respect to the Expansion Premises, all obligations of Tenant
pursuant to the Lease with respect to the Original Premises.
3. Premises. The defined term premises shall
-2-
hereinafter refer to suites 503 and 505 containing an aggregate of 3,468
rentable square feet, on the fifth floor of that: certain eight-story building
known as 000 Xxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx.
4. Term. The first sentence of Section 2 is hereby amended and restated
in its entirety as follows:
"Term. The new term of this lease shall be for six (6) months,
commencing May 15, 1997 and terminating November 14, 1997."
5. Rent. Section 4(a) (ii) is hereby amended and restated in its
entirety as follows:
"(ii) Tenant shall pay to Landlord, without deduction or offset, the
sum of seven thousand five hundred fourteen dollars ($7,514), as basic
rental for the premises, payable in advance promptly on the first day
of every calendar month of the term, and a pro rata portion thereof at
the current rent for fractions of a month if the term shall be
commenced or terminated on any day other than the first or last day of
the month."
6. Security Deposit. Upon execution of this Seventh Amendment, Tenant
shall pay to Landlord the sum of seven thousand
-3-
four hundred ten dollars ($7,410), which sum shall be held by Landlord as a
security deposit for the term of the lease. Such security deposit shall be held
by Landlord in addition to any other sums already so held by Landlord.
7. Tenant Improvements. Within thirty (30) days of the date hereof,
Tenant shall, at Tenant's sole cost and expense, install new building standard
carpeting in the entire premises and repaint the Expansion Premises in a manner
reasonably acceptable to Landlord. Tenant shall submit a carpet sample to
Landlord on or before May 14, 1997. Landlord shall approve or disapprove such
carpet within two (2) business days of Tenant's submission, which approval shall
not be unreasonably withheld. Landlord shall, at Landlord's sole cost and
expense, construct either an opening or an opening and a door between the
Original Premises and the Expansion Premises subject to mutually and reasonably
agreeable specifications. Within seven (7) days of the execution of this Seventh
Amendment by Tenant and payment by Tenant of the sums due hereunder, Landlord
shall construct such opening between the Original Premises and the Expansion
Premises.
8. Option to Extend. Provided and on condition that (a) Tenant is not
in default under the Lease at the time of giving notice of exercise of the
option to extend the Lease term herein granted, and (b) Instant Video
Technologies, Inc., a Delaware corporation, shall be and have been during the
entire
-4-
term the Tenant under the Lease and shall not have (i) assigned or conveyed the
Lease or any interest under it; (ii) allowed a transfer of the Lease or any lien
upon Tenant's interest by operation of law; (iii) sublet the premises or any
part thereof; or (iv) permitted the use occupancy of the premises or any part
thereof by any one other than Tenant during the Lease term, Tenant shall have an
option, exercisable upon written notice to Landlord, given not later sixty (60)
days prior to the expiration of the term of the Lease, to extend the term for
thirty-six (36) months commencing November 15, 1997 and terminating November 14,
2000 (the "Extension Term"). The lease to Tenant of the premises during the
Extension Term shall be upon all the terms and conditions set forth in the
Lease, except basic rental payable during the Extension Term shall be six
thousand nine hundred thirty-six dollars ($6,936) per month.
9. Floor Plan. Exhibit A to the Lease shall be amended to include
therein the depiction of the Expansion Premises attached to this Seventh
Amendment as Exhibit A.
10. Counterparts. This Seventh Amendment may be executed in several
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same document.
11. Ratification of Lease. The Lease as amended by
-5-
this Seventh Amendment is hereby ratified, confirmed and approved in all
respects. In the event of any inconsistency between the provisions of this
Seventh Amendment and the provisions of the Lease, the provisions of this
Seventh Amendment shall govern.
12. Entire Agreement. This Seventh Amendment sets forth the entire
understanding of the parties in connection with the subject matter hereof. There
are no agreements between Landlord and Tenant relating to the Lease other than
those set forth in writing and signed by the parties. Neither party hereto has
relied upon any understanding, representation or warranty not set forth herein,
either oral or written, as an inducement to enter into this Seventh Amendment.
13. Effectiveness. This Seventh Amendment shall be effective as of the
date of this Seventh Amendment.
14. Successors and Assigns. The provisions contained herein shall bind
and inure to the benefit of the heirs,
-6-
representatives, successors and assigns of the parties hereto, subject to the
provisions of Section 28 of the Lease.
IN WITNESS WHEREOF, the parties have executed and delivered this
Seventh Amendment as of the day and year first above written.
LANDLORD:
000 XXXXXXX XXXXXX COMPANY,
a limited partnership
By: L&B INSTITUTIONAL PROPERTY
MANAGERS OF CALIFORNIA, INC.,
a California corporation,
its Managing Agent
By: /s/ Xxxx X. Xxxxxxx
---------------------------------
Its: Authorized Signatory
---------------------------------
Name: Xxxx X. Xxxxxxx
---------------------------------
TENANT:
INSTANT VIDEO TECHNOLOGIES, INC
a Delaware corporation
By: /s/ Xxxx X. Xxxxxxxx
---------------------------------
Its:
---------------------------------
Name:
---------------------------------
-7-
Commercial Use License Agreement
This COMMERCIAL USE LICENSE AGREEMENT (this "Agreement") is made and entered
into on this 20th day of August, 1998, by and between BPG SANSOME, L.L.C.
("Owner") through XXXXXX PACIFIC GROUP, INC. ("Managing Member") and INSTANT
VIDEO TECHNOLOGIES, lNC. ("User");
WITNESSETH:
In consideration of the mutual Premises, covenants and agreements herein set
forth, the parties hereby agree as follows:
1. LICENSE: Owner hereby grants to User a license to occupy and use, subject to
all of the terms and conditions hereinafter stated, that certain space known as
suite 504 (the "Premises") consisting of approximately 1,872 rentable square
feet located on the Fifth Floor of the property commonly known as 000 Xxxxxxx
Xxxxxx, located in San Francisco, California (the "Property"), the Premises
being more particularly set forth in Exhibit "A", attached hereto and made a
part hereof.
2. USE: The Premises may be occupied and used by User solely for the following
purpose; as general office usage only, and for no other purpose.
3. TERM: The User shall use the Premises under this Agreement for the period
commencing the 21st day of August, 1998, and terminating upon receipt of thirty
(30) days written notice provided by either party to the other party.
4. RENTAL: User shall pay to Owner as follows: one thousand five hundred dollars
($1,500) per month, due on the first day of each month. A late fee equal to five
percent (5%) of the overdue amounts will be assessed on amounts not received
within five (5) days of the due date. In addition, for all amounts not paid
within 30 days of the due date, owner may charge interest on such past due
amounts equal to the lesser of (a) 3% per annum over the prime rate in effect at
Xxxxx Fargo Bank or (b) the maximum lawful rate.
5. SUPERVISION OF EMPLOYEES: User shall at all times during its use of the
Premises provide sufficient supervision and maintain adequate control of its
employees, guests, or invitees.
6. NO PARTNERSHIP IMPLIED: 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 nothing contained herein, nor any
acts of the parties hereto, shall be deemed to create any relationship between
the parties hereto other than the relationship of licensor and licensee.
7. NOTICES: All notices, requests, demands, consents, approvals or other
communications sent in accordance with the Agreement shall hereinafter be
addressed to the parties as follows:
Owner: BPG Sansome, L.L.C.
000 Xxxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
and
User: Instant Video Technologies, Inc.
000 Xxxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
IN WITNESS WHEREOF, the parties have entered into this Agreement on the day and
year first hereinabove written.
BPG Sansome, L.L.C., a Delaware Limited Liability Company (Owner)
By: Xxxxxx Pacific Group, Inc., a Delaware corporation, its Managing Member
By: /s/ Xxxxxxx X. Xxxxxxxxxx
-------------------------
Xxxxxxx X. Xxxxxxxxxx
Executive Vice President
Instant Video Technologies, Inc., a Delaware corporation (User)
By: /s/ Xxxxx Xxxxxxxxxxx
------------------------
NAME: XXXXX XXXXXXXXXXX
------------------------
TITLE: CHIEF OPERATING OFFICER
------------------------
EXHIBIT A
000 XXXXXXX XXXXXX
5TH FLOOR
[GRAPHIC OMITTED]
EIGHTH AMENDMENT TO LEASE
THIS EIGHTH AMENDMENT TO LEASE (hereinafter "Amendment") is made and
entered into as of Oct. 12, 1998, by and between BPG SANSOME, L.L.C., a Delaware
limited liability company, as successor-in-interest to 000 Xxxxxxx Xxxxxx
Company, a limited partnership ("Landlord"), AND INSTANT VIDEO TECHNOLOGIES,
INC., a Delaware corporation ("Tenant").
RECITALS:
A. Landlord's predecessor-in-interest, 000 Xxxxxxx Xxxxxx Company, and
tenant heretofore have entered into a lease dated as of February 15, 1993, as
amended by that certain First Amendment to Lease dated as of February 9, 1994,
that certain Second Amendment to Lease dated as of June 9, 1994, that certain
Third Amendment to Lease dated as of January 13, 1995, that certain Fourth
Amendment to Lease dated as of June 12, 1995, that certain Fifth Amendment to
Lease dated as of February 13, 1996, that certain Sixth Amendment to Lease dated
as of August 2, 1996, and that certain Seventh Amendment to Lease dated as of
May 1, 1997, each executed by 000 Xxxxxxx Xxxxxx Company and tenant
(collectively, "Lease"), pursuant to which 000 Xxxxxxx Xxxxxx Company leased to
tenant certain premises designated as Suites 503 and 505 containing an aggregate
of approximately 3,468 rentable square feet (the "Original Premises") on the
fifth floor of that certain building known as 000 Xxxxxxx Xxxxxx, Xxx Xxxxxxxxx,
Xxxxxxxxxx ("Building").
B. The Lease, as amended, is currently scheduled to expire on November
14, 2000 (the "Original Termination Date"). Landlord and Tenant now desire to
amend the Lease to provide for, inter alia, (i) the extension of the term of the
Lease for the Original Premises, commencing on November 15, 2000, and continuing
until January 31, 2002 (the "Extension Term"), all on the terms and conditions
contained in this Amendment, (ii) the expansion of the Original Premises into
space containing 1,146 rentable square feet known as Suite 506 in the Building
("Suite 506") and space containing 1,334 rentable square feet in Suite 502 in
the building (the "Suite 502 Space") (Suite 506 and the Suite 502 Space are
collectively referred to herein as the "Additional Premises"), (iii) an increase
in the Base Rental rate, (iv) the payment by Landlord to Tenant of an allowance
for improvements to the Additional Premises, and (v) the establishment of
commencement dates, a Base Year, and rental rates for the Additional Premises.
NOW, THEREFORE, the parties hereto agree as follows:
1. Defined Terms. Unless defined otherwise herein, all capitalized
terms used in this Amendment shall have the meanings attributed to such terms in
the Lease. Upon the expiration or earlier termination of the term of the Lease,
as extended hereby, Tenant shall vacate and surrender the Original Premises and
the Additional Premises to Landlord in the condition required by Section 12 of
the Lease and otherwise pursuant to the terms of the Lease.
2. TERM. The term of the Lease for the Original Premises shall be
extended for the Extended Term, which shall commence on November 15, 2000 and
expire on January 31, 2002 (the "Extended Termination Date"). The term of the
lease for Suite 506 shall commence upon delivery, anticipated to occur on or
before November 15, 1998 and expire on the Extended Termination Date. The term
of the lease for the Suite 502 Space shall commence upon delivery, anticipated
to occur on or before October 15, 1998 and expire on the Extended Termination
Date. Within thirty (30) days following the determination of the respective
commencement dates for Xxxxx 000 xxx xxx Xxxxx 000 Xxxxx, Xxxxxxxx and Tenant
shall each execute a Commencement Date Memorandum confirming the actual
commencement date for each such space.
3. Leasing of Additional Premises. Landlord hereby leases to Tenant
Xxxxx 000 and the Suite 502 Space for the respective terms set forth in Section
2 above. Accordingly, Exhibit A to the Lease shall be deleted in its entirety
and replaced with Exhibit A attached hereto. Unless otherwise provided in this
Amendment, from and after the respective commencement dates set forth in Section
2 above, Tenant shall observe or perform, with respect to Xxxxx 000 and the
Suite 502 Space, respectively, all obligations of Tenant pursuant to the Lease.
4. Rental Rate. From the date first written above through the
Original Termination Date, Tenant shall pay to Landlord as basic rental for its
lease of the Original Premises the sum of $24.00 per rentable square foot.
During the Extension Term, Tenant shall pay to Landlord as basic rental for its
lease of the Original Premises the sum of $31.50 per rentable square foot. From
the commencement date of the term of the lease for Suite 506 through July 31,
2000, Tenant shall pay to Landlord as basic rental for its lease of Suite 506
the sum of $30.00 per rentable square foot; from November 1, 1998 through July
31, 2000, Tenant shall pay to Landlord as basic rental for its lease of the
Suite 502 Space the sum of $30.00 per rentable square foot (i.e., if Tenant
occupies the Suite 502 Space prior to November 1, 1998, Tenant will not have to
pay basic rental for the Suite 502 Space until November 1, 1998). From August 1,
2000 through the Extended Termination Date, Tenant shall pay to Landlord as
basic rental for its lease of Suite 506 and the Suite 502 Space the sum of
$31.50 per rentable square foot.
5. Tenant Improvement Allowance. On or before their respective
commencement dates, Landlord shall deliver to Tenant Xxxxx 000 and the Suite 502
Space in their current "As Is" condition. Landlord shall provide Tenant with an
allowance (the "Tenant Improvement Allowance") of $5.00 per rentable square foot
in the Additional Premises for Tenant's required work in the Additional
Premises. The Tenant Improvement Allowance shall be provided to Tenant within
thirty (30) days after the lien-free completion of Tenant's improvements in the
Additional Premises, provided that Tenant delivers to Landlord receipts,
invoices, purchase orders, and other documentation reasonably requested by
Landlord, including
2
mechanics' and materialmens' lien releases, substantiating Tenant's expenditure
of the Tenant Improvement Allowance. In addition, Landlord shall be responsible
for installing a demising wall in the Suite 502 Space to separate such space
from the remaining space in Suite 502.
6. Base Year. The Base Year for the Additional Premises shall be the
1999 calendar year. The Base Year for the Original Premises shall remain as the
1993 calendar year through the Extended Termination Date. Tenant's percentage
share of increases in operating costs and property taxes for the Additional
Premises shall be one and seventy-three hundredths percent (1.73%). Tenant's
percentage share of increases in operating costs and property taxes for the
Original Premises shall remain two and forty-three hundredths percent (2.43%).
7. Successors and Assigns. This Amendment shall be binding upon and
inure to the benefit of the heirs, executors, administrators, successors and
assigns of the respective parties hereto.
8. Limitation of Amendment. Except as specifically modified by this
Amendment, all of the terms and provision of the Lease shall remain unmodified
and in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the day and year first above written.
TENANT: LANDLORD:
INSTANT VIDEO TECHNOLOGIES, BPG SANSOME, L.L.C., a Delaware
INC., a Delaware corporation limited liability company
By: XXXXXX PACIFIC GROUP
INC., Its Managing Member
By: /s/ ???????????????
-----------------------
ITS: V.P. OPERATIONS BY: /S/ XXXXXXX X. XXXXXX
----------------------- --------------------------
Xxxxxxx X. Xxxxxx
BY: Managing Director
-----------------------
ITS:
-----------------------
3
EXHIBIT A
[graphic omitted[
000 XXXXXXX XXXXXX XXXXX XXXXX
--------------------------------------------------------------------------------
XXX XXXXXXXXX, XX
COMMENCEMENT DATE MEMORANDUM
To: Instant Video Technologies November 20, 1998
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Re: Eighth Amendment to Lease dated October 12, 1998, Between BPG
Sansome, LLC, Lessor, and Instant Video Technologies, Lessee,
Concerning the Additional Premises (Suites 502 & 506) located at
000 Xxxxxxx Xxxxxx, Xxx Xxxxxxxxx.
In accordance with the original Lease and the subject Eight Amendment to
Lease (together the "Lease"), we wish to advise and/or confirm as follows:
1) The Additional Premises have been accepted by the Tenant as being
substantially complete in accordance with the Lease and there is no
deficiency in construction.
2) Lessee has possession of the Additional Premises and acknowledges
that under the provisions of Lease, the term of said Lease for
Suite 502 shall commence as of November 1, 1998, for a term of
thirty-nine (39) months ending on January 31, 2002 and for Suite
506 shall commence as of November 23, 1998, for a term of
approximately thirty-eight (38) months ending on January 31, 2002.
3) In accordance with the Lease, Rent commenced to accrue for Suite
502 on November 1, 1998 and for Suite 506 on November 23, 1998.
4) If the commencement date of the Lease is other than the first day
of the month, the first billing will contain a pro rata adjustment.
Each billing thereafter shall be for the full amount of the monthly
installment as provided for in the Lease.
5) Rent is due and payable in advance on the first day of each and
every month. Rent checks should be made payable to BPG Sansome, LLC
and delivered to:
BPG Sansome, LLC
XX Xxx 0000
Xxx Xxxxxxx, XX 00000-0000
6) The rentable square footage in the Additional Premises is 2,480.
7) Tenant's Percentage Share for the Additional Premises is 1.73%.
Lessor: Lessee:
BPG Sansome, LLC Instant Video Technologies, Inc.
a Delaware limited liability company a Delaware Corporation
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
By: Xxxxxx Pacific Group By: Xxxxx Xxxxxxxxxxx
Managing Member ---------------------------
Print Name: ____________________
By: Xxxxxxx X. Xxxxxx
---------------------- Title: C. O. O.
Xxxxxxx X. Xxxxxx --------------------------
Managing Director
Commercial Use License Agreement
This COMMERCIAL USE LICENSE AGREEMENT (this "Agreement") is made and entered
into on this 12th day of January, 1999, by and between BPG SANSOME, LLC
("Owner") through XXXXXX PACIFIC GROUP, lNC. ("Managing Member") and INSTANT
VIDEO TECHNOLOGIES, INC. ("User");
WITNESSETH:
In consideration of the mutual Premises, covenants and agreements herein set
forth, the parties hereby agree as follows:
1. LICENSE: Owner hereby grants to User a license to occupy and use, subject to
all of the terms and conditions hereinafter stated, the certain space known as
Storage Room S-0l (the "Premises") consisting of approximately 130 rentable
square feet located in the basement of the property commonly known as 000
Xxxxxxx Xxxxxx, located in San Francisco, California (the "Property"), the
Premises being more particularly set forth in Exhibit "A", attached hereto and
made a part hereof.
2. USE: The Premises may be occupied and used by User solely for the following
purpose; as storage for non-hazardous materials only, and for no other purpose.
3. TERM: The User shall use the Premises under this Agreement for the period
commencing the first day of February, 1999, and terminating upon receipt of
thirty (30) days written notice provided by either party to the other party.
4. RENTAL: User shall pay to Owner as follows:
Fifteen and No/l00 Dollars ($15) per rentable square foot per annum, or $162.50
dollars per month, due on the first day of each month. A late fee equal to five
percent (5%) of the overdue amounts will be assessed on amounts not received
within five (5) days of the due date. In addition, for all amounts not paid
within 30 days of the due date, owner may charge interest on such past due
amounts equal to the lesser of (a) 3% per annum over the prime rate in effect at
Xxxxx Fargo Bank or (b) the maximum lawful rate.
5. SUPERVISION OF EMPLOYEES: User shall at all times during its use of the
Premises provide sufficient supervision and maintain adequate control of its
employees, guests, or invitees.
6. NO PARTNERSHIP IMPLIED: 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 nothing contained herein, nor any
acts of the parties hereto, shall be deemed to create any relationship between
the parties hereto other than the relationship of licensor and licensee.
7. NOTICES: All notices, requests, demands, consents, approvals or other
communications sent in accordance with the Agreement shall hereinafter be
addressed to the parties as follows:
Owner: BPG Sansome, LLC
000 Xxxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
and
User: Instant Video Technologies, Inc.
000 Xxxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
IN WITNESS WHEREOF, the parties have entered into this Agreement on the day and
year first hereinabove written.
BPG Sansome, LLC, a Delaware Limited Liability Company (Owner)
By: Xxxxxx Pacific Group, Inc., a Delaware corporation, its Managing Member
By: Xxxxxxx X. Xxxxxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
-----------------------------------
Title: Executive Vice President
-----------------------------------
Instant Video Technologies, Inc. (User)
By: Xxxxx Xxxxxxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxxxxxx
-----------------------------------
Title: C. O. O.
-----------------------------------
EXHIBIT A
[Graphic Omitted
000 XXXXXXX XXXXXX BASEMENT
--------------------------------------------------------------------------------
SAN FRANCISCO, CA
ORDERED BY: Purchase Order
Instant Video Technologies, Inc. Purchase Order Xx.
000 Xxxxxxx Xxxxxx, Xxxxx 000 1023
Xxx Xxxxxxxxx, XX 00000
Date Issued
Fax: 000.000.0000/Phone 000.000.0000 1/8/99
To:
Xxxxxx Pacific Group, Inc. Ship To:
X.X. Xxx 0000 Instant Video Technologies, Inc.
Xxx Xxxxxxx, XX 00000-0000 000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Fax: 000.000.0000 Phone: 000.000.0000
--------------------------------------------------------------------------------
Good Thru Ship Via Account No. Terms
--------------------------------------------------------------------------------
2/7/99 Courier 25-0503-CU Net 30 Days
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Item Description Quantity Unit Price Extension
--------------------------------------------------------------------------------
Monthly rent of Basment storage 12.00 167.50 2,010.00
--------------------------------------------------------------------------------
TOTAL $2,010.00
-------------------------
Authorized Signature ???????????????
-------------------------
Commercial Use License Agreement
This COMMERCIAL USE LICENSE AGREEMENT (this "Agreement") is made and entered
into on this 6th day of April, 1999, by and between BPG SANSOME, LLC ("Owner")
through BPG PARTNERS, LLC ("Managing Member") and INSTANT VIDEO TECHNOLOGIES,
INC. ("User");
WITNESSETH:
In consideration of the mutual Premises, covenants and agreements herein set
forth, the parties hereby agree as follows:
1. LICENSE: Owner hereby grants to User a license to occupy and use, subject to
all of the terms and conditions hereinafter stated, the certain space known as
Storage Room S-22 (the "Premises") consisting of approximately 382 rentable
square feet located in the basement of the property commonly known as 000
Xxxxxxx Xxxxxx, located in San Francisco, California (the "Property"), the
Premises being more particularly set forth in Exhibit "A", attached hereto and
made a part hereof.
2. USE: The Premises may be occupied and used by User solely for the following
purpose; as storage for non-hazardous materials only, and for no other purpose.
3. TERM: The User shall use the Premises under this Agreement for the period
commencing the first day of May, 1999, and terminating upon receipt of thirty
(30) days written notice provided by either party to the other party.
4. RENTAL: User shall pay to Owner as follows:
Fifteen and No/100 Dollars ($15.00) per rentable square foot per annum, or
$477.50 dollars per month, due on the first day of each month. A late fee equal
to five percent (5%) of the overdue amounts will be assessed on amounts not
received within five (5) days of the due date. In addition, for all amounts not
paid within 30 days of the due date, owner may charge interest on such past due
amounts equal to the lesser of (a) 3% per annum over the prime rate in effect at
Xxxxx Fargo Bank or (b) the maximum lawful rate.
5. SUPERVISION OF EMPLOYEES: User shall at all times during its use of the
Premises provide sufficient supervision and maintain adequate control of its
employees, guests, or invitees.
6. NO PARTNERSHIP IMPLIED: 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 nothing contained herein, nor any
acts of the parties hereto, shall be deemed to create any relationship between
the parties hereto other than the relationship of licensor and licensee.
7. NOTICES: All notices, requests, demands, consents, approvals or other
communications sent in accordance with the Agreement shall hereinafter be
addressed to the parties as follows:
Owner: BPG Sansome, LLC
000 Xxxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
and
User: Instant Video Technologies, Inc.
000 Xxxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
IN WITNESS WHEREOF, the parties have entered into this Agreement on the day and
year first hereinabove written.
BPG Sansome, LLC, a Delaware limited liability company (Owner)
By: BPG Partners, LLC, a Delaware limited liability company, its Managing Member
By: /s/ Xxxxxxx X. Xxxxxxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
-------------------------
Title: Exec. VP
-------------------------
Instant Video Technologies, Inc. (User)
By: /s/ Xxxxx Xxxxxxxxxxx
----------------------------
Name: Xxxxx Xxxxxxxxxxx
-------------------------
Title: C.O.O.
-------------------------
EXHIBIT A
[Graphic Omitted]
000 XXXXXXX XXXXXX XXXXXXXX
--------------------------------------------------------------------------------
XXX XXXXXXXXX, XX
NINTH AMENDMENT TO LEASE
THIS NINTH AMENDMENT TO LEASE (hereinafter "Amendment") is made and
entered into as of May 5, 1999, by and between BPG SANSOME, L.L.C., a Delaware
limited liability company, as successor-in-interest to 000 Xxxxxxx Xxxxxx
Company, a limited partnership ("Landlord"), and INSTANT VIDEO TECHNOLOGIES,
INC., a Delaware corporation ("Tenant").
RECITALS:
A. Landlord's predecessor-in-interest, 000 Xxxxxxx Xxxxxx Company, and
Tenant heretofore have entered into a Lease dated as of February 15, 1993, as
amended by that certain First Amendment to Lease dated as of February 9, 1994,
that certain Second Amendment to Lease dated as of June 9, 1994, that certain
Third Amendment to Lease dated as of January 13, 1995, that certain Fourth
Amendment to Lease dated as of June 12, 1995, that certain Fifth Amendment to
Lease dated as of February 13, 1996, that certain Sixth Amendment to Lease dated
as of August 2, 1996, and that certain Seventh Amendment to Lease dated as of
May 1, 1997, each executed by 000 Xxxxxxx Xxxxxx Company and Tenant, and that
certain Eighth Amendment to Lease dated as of October 12, 1998 (collectively,
"Lease"), pursuant to which Tenant leases from Landlord certain premises
designated as Suites 502, 503, 505 and 506 containing an aggregate of
approximately 5,948 rentable square feet (the "Premises") on the fifth floor of
that certain building known as 000 Xxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx
("Building").
B. The Lease, as amended, is scheduled to expire on January 31, 2002
(the "Termination Date"). Landlord and Tenant now desire to amend the Lease on
the terms and conditions contained in this Amendment to provide for (i) the
expansion of the Premises into space containing 1,872 rentable square feet known
as Xxxxx 000 ("Xxxxx 000") and space containing 2,842 rentable square feet known
as Suite 500 ("Suite 500") (Suite 504 and Suite 500 are collectively referred to
herein as the "Additional Premises"), (ii) the payment by Landlord to Tenant of
an allowance for improvements to the Additional Premises, and (iii) the
establishment of commencement dates, a Base Year, and rental rates for the
Additional Premises. With the expansion of the Premises contemplated hereby,
Tenant's total leased space shall comprise 10,662 rentable square feet.
NOW, THEREFORE, the parties hereto agree as follows:
1. Defined Terms. Unless defined otherwise herein, all capitalized
terms used in this Amendment shall have the meanings attributed to such terms in
the Lease.
2. Leasing of Additional Premises. Upon and subject to the terms
hereof, Landlord hereby leases to Tenant Xxxxx 000 xxx Xxxxx 000 for the
respective terms set forth in Section 3 below. Accordingly, Exhibit A to the
Lease shall be deleted in its
entirety and replaced with Exhibit A attached hereto. Unless otherwise provided
in this Amendment, from and after the respective commencement dates set forth in
Section 2 above, Tenant shall observe and perform, with respect to Xxxxx 000 xxx
Xxxxx 000, respectively, all obligations of Tenant pursuant to the Lease.
3. Term. The term of the lease for Suite 504 shall commence upon
delivery, anticipated to occur on or before May 15, 1999, and expire on the
Termination Date. The term of the lease for Suite 500 shall commence upon
delivery, anticipated to occur on or before November 1, 1999, and expire on the
Termination Date. Within thirty (30) days following the determination of the
respective commencement dates for Xxxxx 000 xxx Xxxxx 000, Xxxxxxxx and Tenant
shall execute a Commencement Date Memorandum confirming the commencement date
for each suite. Upon the expiration or earlier termination of the term of the
Lease, Tenant shall vacate and surrender the Premises and the Additional
Premises to Landlord in the condition required by Section 12 of the Lease and
otherwise pursuant to the terms of the Lease.
4. Rental Rate. From the respective commencement dates for Suites 504
and 500 as provided herein, Tenant shall pay to Landlord as basic rental the sum
of $35.00 per rentable square foot with respect to each suite.
5. Tenant Improvement Allowance. Landlord shall be responsible for
creating a "passthrough" in the hallway between Suite 504 and Suite 500 once
Suite 500 becomes available. On or before their respective commencement dates,
Landlord shall deliver to Tenant Suite 504 and Suite 500 in their current "As
Is" condition, and, except as provided herein, Landlord shall have no obligation
whatsoever to provide any alterations or improvements with regard to the
Additional Premises. Landlord shall provide Tenant with an allowance (the
"Tenant Improvement Allowance") of $4,680.00 for Xxxxx 000, and $14,210.00 for
Xxxxx 000, for Tenant's required work in those suites which may be used by
Tenant for any improvement it makes to those suites (provided the same is made
in accordance with the Lease). The aggregate Tenant Improvement Allowance amount
may be allocated by Tenant to improvement work in Suites 500 and 504 as Tenant
may elect (e.g., Tenant may elect to shift some of the allowance allocated to
Suite 500 over to Suite 504), provided that Landlord shall not be required to
make available the amounts described above until following the commencement of
the Lease for each respective Suite (i.e., Landlord shall not be required to
make available the $14,210.00 amount allocated to Suite 500 until after the
lease commences with respect to Suite 500). Tenant shall construct the tenant
improvements for the Additional Premises in accordance with all applicable laws
and codes and pursuant to plans and using such contractors as shall be approved
in advance by Landlord. Landlord shall pay out the Tenant Improvement Allowance
as any such work is completed based upon the stage of completion and provided
Landlord has received bills and lien releases from Tenant's contractor(s) and/or
suppliers, subject to a ten percent (10%) retention to be withheld until final,
lien-free completion of the work. Tenant shall
2
pay all costs for constructing its improvements in excess of the Tenant
Improvement Allowance, and shall pay for all applicable fees and permits.
6. Base Year. The Base Year for the Additional Premises shall be the
1999 calendar year. Upon commencement of the term for Suite 504, Tenant's
percentage share of increases in operating costs and property taxes shall be
increased by an amount equal to one and thirty-four one hundredths percent
(1.34%), and upon commencement of the term for Suite 500, Tenant's percentage
share of increases in operating costs and property taxes shall be increased by
an amount equal to two and three one-hundredths percent (2.03%).
7. Right of First Refusal on the 5th Floor.
(a) Landlord hereby agrees that should space become available
on the 5th floor of the Building, other than the Premises and the Additional
Premises, and Landlord receives a bona fide third party offer to lease such
available space upon terms and conditions acceptable to Landlord ("third party
offer"), Landlord shall give notice to Tenant that such space is available for
lease by Tenant upon the terms and conditions set forth in such third party
offer. If Tenant desires to exercise its right to lease such space, Tenant must
give Landlord notice of its intent to exercise such right stating Tenant's
unequivocal acceptance of such offered terms and conditions no later than five
(5) business days after Landlord sends Tenant such notice of availability. If
Tenant does not timely provide Landlord with such written notice and acceptance,
then Landlord shall thereafter be free to lease such space to any third party
upon any terms Landlord deems acceptable. In the event Tenant exercises a right
to add additional space in accordance with this paragraph, Tenant's percentage
share of increases in operating expenses and taxes shall be increased
proportionately in accordance with the terms of the Lease.
(b) Space subject to this paragraph shall be deemed to become
available upon expiration or other termination of a lease to another tenant
covering such space or any part of it, taking into account any renewals or
extensions of such lease or new lease of such space to such existing tenant, and
vacation of such space by such tenant.
(c) Notwithstanding any provision of this section, it is
understood and agreed that the right of refusal described herein shall, as to
any space offered hereunder, at Landlord's option terminate and be of no further
force or effect if:
(i) Landlord gives Tenant a written notice of the
availability of such space upon the terms provided hereinabove, and Tenant does
not notify Landlord, in writing, of Tenant's acceptance of such terms when and
as hereinabove provided, time being of the essence;
3
(ii) Landlord presents Tenant with an "Amendment to Lease"
to incorporate the space into the Premises upon the terms described above, and
Tenant fails to execute such Amendment within fifteen (15) days after its
receipt;
(iii) At any time that any portion of the space becomes or
is available until an "Amendment to Lease" is fully executed, Tenant is in
default in the performance of any of the covenants, conditions or agreements to
be performed under the Lease beyond any applicable cure period;
(iv) The original term of the Lease expires or is
terminated.
8. FTI Termination. Notwithstanding anything to the contrary herein,
Landlord's obligation to deliver Suite 504 shall be conditioned upon the
execution by Forensic Technologies Inc., the current tenant of Suite 504, of a
Lease Termination Agreement satisfactory to Landlord in its sole discretion. If
for any reason Landlord cannot deliver Suite 504 to Tenant on or before May 15,
1999, Landlord shall not be subject to any liability therefor, nor shall
Landlord be in default hereunder, and Tenant agrees to accept possession of
Suite 504, and the term hereof with respect to Suite 504 shall commence, at such
time as Landlord does deliver same to Tenant.
9. Successors and Assigns. This Amendment shall be binding upon and
inure to the benefit of the heirs, executors, administrators, successors and
assigns of the respective parties hereto.
10. Limitation of Amendment. Except as specifically modified by this
Amendment, all of the terms and provision of the Lease shall remain unmodified
and in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the day and year first above written.
TENANT: LANDLORD:
INSTANT VIDEO TECHNOLOGIES, BPG SANSOME, L.L.C., a Delaware
INC., a Delaware corporation limited liability company
By: BPG PARTNERS, LLC,
Managing Member
Its: Xxxxxx X. Xxxxx By: Xxxxxxx X. Xxxxxxx
--------------------------------
By: Xxxxxx X. Xxxxx Xxxxxxx X. Xxxxxxx
--------------------------------
Its: Vice President & General Counsel
--------------------------------
4
Exhibit A
[Graphic Omitted]
FIFTH FLOOR
COMMENCEMENT DATE MEMORANDUM
To: Instant video Technologies May 21, 1999
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Re: Ninth Amendment to Lease dated May 5, 1999, between BPG Sansome, LLC,
Lessor, and Instant Video Technologies, Inc., Lessee, concerning the
Additional Premises (Suite 504) located at 000 Xxxxxxx Xxxxxx, Xxx
Xxxxxxxxx.
In accordance with the original Lease and the subject Ninth Amendment to Lease
(together the "Lease"), we wish to advise and/or confirm as follows:
1) The Additional Premises (Suite 504) have been accepted by the Tenant as
being substantially complete in accordance with the Lease and there is
no deficiency in construction.
2) Lessee has possession of the Additional Premises (Suite 504) and
acknowledges that under the provisions of Lease, the term of said Lease
for Suite 504 shall commence as of May 15, 1999, for a term of
thirty-two and one half (32.5) months ending on January 31, 2002.
3) In accordance with the Lease, Rent commenced to accrue for Suite 504 on
May 15, 1999.
4) If the commencement date of the Lease is other than the first day of
the month, the first billing will contain a pro rata adjustment. Each
billing thereafter shall be for the frill amount of the monthly
installment as provided for in the Lease.
5) Rent is due and payable in advance on the first day of each and every
month. Rent checks should be made payable to BPG Sansome, LLC and
delivered to:
BPG Sansome, LLC
XX Xxx 0000
Xxx Xxxxxxx, XX 00000-0000
6) The rentable square footage in the Additional Premises (Suite 504) is
1,872.
7) Tenant's Percentage Share for Suite 504 is 1.34%.
Lessor: Lessee:
BPG Sansome, LLC Instant Video Technologies, Inc.
a Delaware limited liability company a Delaware corporation
000 Xxxxxxx Xxxxxx, Xxxxx 000 000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000 Xxx Xxxxxxxxx XX 00000
By: BPG Partners, LLC By: /s/ Xxxxx Xxxxxxxxxxx
Managing Member ----------------------------
Print Name: Xxxxx Xxxxxxxxxxx
---------------------
By: /s/ Xxxxxxx X. Xxxxxxx Title: C.O.O.
----------------------- --------------------------
Xxxxxxx X. Xxxxxxx
Manager
Commercial Use License Agreement
This COMMERCIAL USE LICENSE AGREEMENT (this "Agreement") is made and entered
into on this 7th day of May, 1999, by and between BPG SANSOME, LLC ("Owner")
through BPG PARTNERS, LLC ("Managing Member") and INSTANT VIDEO TECHNOLOGIES,
lNC. ("User");
WITNESSETH:
In consideration of the mutual Premises, covenants and agreements herein set
forth, the parties hereby agree as follows:
1. LICENSE: Owner hereby grants to User a license to occupy and use, subject to
all of the terms and conditions hereinafter stated, the certain spaces known as
Storage Rooms S-20 & S-21 (the "Premises") consisting of approximately 566
rentable square feet located in the basement of the property commonly known as
000 Xxxxxxx Xxxxxx, located in San Francisco, California (the "Property"), the
Premises being more particularly set forth in Exhibit "A", attached hereto and
made a part hereof.
2. USE: The Premises may be occupied and used by User solely for the following
purpose; as storage for non-hazardous materials only, and for no other purpose.
3. TERM: The User shall use the Premises under this Agreement for the period
commencing the first day of June, 1999, and terminating upon receipt of thirty
(30) days written notice provided by either party to the other party.
4. RENTAL: User shall pay to Owner as follows:
Fifteen and No/l00 Dollars ($15.00) per rentable square foot per annum, or
$707.50 dollars per month, due on the first day of each month. A late fee equal
to five percent (5%) of the overdue amounts will be assessed on amounts not
received within five (5) days of the due date. In addition, for all amounts not
paid within 30 days of the due date, owner may charge interest on such past due
amounts equal to the lesser of (a) 3% per annum over the prime rate in effect at
Xxxxx Fargo Bank or (b) the maximum lawful rate.
5. SUPERVISION OF EMPLOYEES: User shall at all times during its use of the
Premises provide sufficient supervision and maintain adequate control, of its
employees, guests, or invitees.
6. NO PARTNERSHIP IMPLIED: 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 nothing contained herein, nor any
acts of the parties hereto, shall be deemed to create any relationship between
the parties hereto other than the relationship of licensor and licensee.
7. NOTICES: All notices, requests, demands, consents, approvals or other
communications sent in accordance with the Agreement shall hereinafter be
addressed to the parties as follows:
Owner: BPG Sansome, LLC
000 Xxxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
and
User: Instant Video Technologies, Inc.
000 Xxxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
IN WITNESS WHEREOF, the parties have entered into this Agreement on the day and
year first hereinabove written.
BPG Sansome, LLC, a Delaware limited liability company (Owner)
By: BPG Partners, LLC, a Delaware limited liability company, its Managing Member
By: /s/ Xxxxxxx X. Xxxxxxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
-------------------------
Title: Executive Vice President
-------------------------
Instant Video Technologies, Inc. (User)
By: /s/ Xxxxx Xxxxxxxxxxx
----------------------------
Name: Xxxxx Xxxxxxxxxxx
-------------------------
Title: C.O.O.
-------------------------
EXHIBIT A
[Graphic Omitted]
000 XXXXXXX XXXXXX XXXXXXXX
--------------------------------------------------------------------------------
XXX XXXXXXXXX, XX
TENTH AMENDMENT TO LEASE
THIS TENTH AMENDMENT TO LEASE (hereinafter "Amendment") is made and
entered into as of June 24, 1999, by and between BPG SANSOME, L.L.C., a Delaware
limited liability company, as successor-in-interest to 000 Xxxxxxx Xxxxxx
Company, a limited partnership ("Landlord"), and INSTANT VIDEO TECHNOLOGIES,
INC., a Delaware corporation ("Tenant").
RECITALS:
A. Landlord's predecessor-in-interest, 000 Xxxxxxx Xxxxxx Company, and
Tenant heretofore have entered into a Lease dated as of February 15, 1993, as
amended by that certain First Amendment to Lease dated as of February 9, 1994,
that certain Second Amendment to Lease dated as of June 9, 1994, that certain
Third Amendment to Lease dated as of January 13, 1995, that certain Fourth
Amendment to Lease dated as of June 12, 1995, that certain Fifth Amendment to
Lease dated as of February 13, 1996, that certain Sixth Amendment to Lease dated
as of August 2, 1996, and that certain Seventh Amendment to Lease dated as of
May 1, 1997, each executed by 000 Xxxxxxx Xxxxxx Company and Tenant, together
with that certain Eighth Amendment to Lease dated as of October 12, 1998, and
that certain Ninth Amendment to Lease dated as of May 5, 1999 (collectively,
"Lease"), pursuant to which Tenant leases from Landlord certain premises
designated as Suites 500, 502, 503, 504, 505 and 506 containing an aggregate of
approximately 10,662 rentable square feet (the "Premises") on the fifth floor of
that certain building known as 000 Xxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx
("Building").
B. The Lease, as amended, is scheduled to expire on January 31, 2002
(the "Termination Date"). Landlord and Tenant now desire to amend the Lease on
the terms and conditions contained in this Amendment to provide for (i) the
expansion of the Premises into space containing 2,237 rentable square feet
located on the second floor of the Building known as Suite 201 (the "Additional
Premises"), (ii) the payment by Landlord to Tenant of an allowance for
improvements to the Additional Premises, and (iii) the establishment of a
commencement date, Base Year, and rental rate for the Additional Premises. With
the expansion of the Premises contemplated hereby, Tenant's total leased space
shall comprise 12,899 rentable square feet.
NOW, THEREFORE, the parties hereto agree as follows:
1. Defined Terms. Unless defined otherwise herein, all capitalized
terms used in this Amendment shall have the meanings attributed to such terms in
the Lease.
2. Leasing of Additional Premises. Upon and subject to the terms
hereof, Landlord hereby leases to Tenant the Additional Premises (as shown on
Exhibit A attached hereto) for the term set forth in Section 3 below. Unless
otherwise provided in this Amendment, from and after the commencement date set
forth in Section 3
below, Tenant shall observe and perform, with respect to the Additional
Premises, all obligations of Tenant pursuant to the Lease.
3. Term. The term of the lease for the Additional Premises shall
commence upon delivery, anticipated to occur on or before July 1, 1999, and
expire on the Termination Date. Within thirty (30) days following the
determination of the commencement date for the Additional Premises, Landlord and
Tenant shall execute a Commencement Date Memorandum confirming. the commencement
date for the Additional Premises. Upon the expiration or earlier termination of
the term of the Lease, Tenant shall vacate and surrender the Premises and the
Additional Premises to Landlord in the condition required by Section 12 of the
Lease and otherwise pursuant. to the terms of the Lease.
4. Rental Rate. From the commencement date for the Additional Premises
as provided herein, Tenant shall pay to Landlord as basic rental the sum of
$36.00 per rentable square foot per year.
5. Tenant Improvement Allowance. On or before the commencement date,
Landlord shall deliver to Tenant the Additional Premises in its current "As Is"
condition, and, except as provided herein, Landlord shall have no obligation
whatsoever to provide any alterations or improvements with regard to the
Additional Premises. Landlord shall provide Tenant with an allowance (the
"Tenant Improvement Allowance") of $4,474.00 for the Additional Premises (equal
to $2.00 per rentable square foot of the Additional Premises), for Tenant's
required work in the Additional Premises which may be used by Tenant for any
improvement it makes to the Additional Premises (provided the same is made in
accordance with the Lease). Tenant shall construct the tenant improvements for
the Additional Premises in accordance with all applicable laws and codes and
pursuant to plans and using such contractors as shall be approved in advance by
Landlord. Landlord shall pay out the Tenant Improvement Allowance as any such
work is completed based upon the stage of completion and provided Landlord has
received bills and lien releases from Tenant's contractor(s) and/or suppliers,
subject to a ten percent (10%) retention to be withheld until final, lien-free
completion of the work. Tenant shall pay all costs for constructing its
improvements in excess of the Tenant Improvement Allowance, and shall pay for
all applicable fees and permits.
6. Base Year. The Base Year for the Additional Premises shall be the
2000 calendar year. Upon commencement of the term for the Additional Premises,
Tenant's percentage share of increases in operating costs and property taxes
shall be increased by an amount equal to one and sixty one hundredths percent
(1.60%).
7. First Month's Rent; Increase of Security Deposit. Upon execution of
this Amendment, Tenant shall deposit with Landlord the sum of $13,422.00, of
which $6,711 shall be credited towards the first month's basic rental due for
the Additional Premises, and of which $6,711 shall be added to the Security
Deposit held by Landlord
2
pursuant the Lease as security for tenant's performance of its obligations under
the Lease.
8. Delay in Delivery. If for any reason Landlord cannot deliver the
Additional Premises to Tenant on or before July 1, 1999, Landlord shall not be
subject to any liability therefor, nor shall Landlord be in default hereunder,
and Tenant agrees to accept possession of the Additional Premises, and the term
hereof with respect to the Additional Premises shall commence, at such time as
Landlord does deliver same to Tenant.
9. Broker. Landlord shall be responsible, pursuant to a separate
agreement, for payment of a brokerage commission to Belvedere Associates, Inc.
(as the broker for Tenant) (the "Broker") in connection with this Amendment.
Landlord and Tenant each represent and warrants to the other that no party other
than Broker is entitled to any fee or commission in connection with the
negotiation or consummation of this Amendment. Landlord and Tenant shall each
indemnify, defend and hold the other harmless from and against liability for
compensation or charges which may be claimed by any broker, finder or other
similar party other than Broker by reason of this Amendment.
10. Successors and Assigns. This Amendment shall be binding upon and
inure to the benefit of the heirs, executors, administrators, successors and
assigns of the respective parties hereto.
11. Limitation of Amendment. Except as specifically modified by this
Amendment, all of the terms and provision of the Lease shall remain unmodified
and in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the day and year first above written.
TENANT: LANDLORD:
INSTANT VIDEO TECHNOLOGIES, BPG SANSOME, L.L.C., a Delaware
INC., a Delaware corporation limited liability company
By: BPG PARTNERS, LLC,
Managing Member
Its: /s/ Xxxxx Xxxxxxxxxxx By: Xxxxxxx X. Xxxxxxx
---------------------- --------------------------
By: /s/ Xxxxx Xxxxxxxxxxx Xxxxxxx X. Xxxxxxx
---------------------- Manager
Its: C.O.O.
----------------------
3
Exhibit A
[Graphic Omitted[
SECOND FLOOR
REFERENCE
NORTH
000
XXXXXXX XXXXXX
COMMENCEMENT DATE MEMORANDUM
To: Instant Video Technologies July 7, 1999
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Re: Tenth Amendment to Lease dated June 24, 1999, between BPG Sansome, LLC,
Lessor, and Instant Video Technologies, Inc., Lessee, concerning the
Additional Premises (Suite 201) located at 000 Xxxxxxx Xxxxxx, Xxx
Xxxxxxxxx.
In accordance with the original Lease and the subject Tenth Amendment to Lease
(together the "Lease"), we wish to advise and/or confirm as follows:
1) The Additional Premises (Suite 201) have been accepted by the Tenant as
being substantially complete in accordance with the Lease and there is
no deficiency in construction.
2) Lessee has possession of the Additional Premises (Suite 201) and
acknowledges that under the provisions of Lease, the term of said Lease
for Suite 201 shall commence as of July 1, 1999, for a term of
thirty-one (31) months ending on January 31, 2002.
3) In accordance with the Lease, Rent commenced to accrue for Suite 201 on
July 1, 1999.
4) If the commencement date of the Lease is other than the first day of
the month, the first billing will contain a pro rata adjustment. Each
billing thereafter shall be for the full amount of the monthly
installment as provided for in the Lease.
5) Rent is due and payable in advance on the first day of each and every
month. Rent checks should be made payable to BPG Sansome, LLC and
delivered to:
BPG Sansome, LLC
P0 Xxx 0000
Xxx Xxxxxxx, XX 00000-0000
6) The rentable square footage in the Additional Premises (Suite 201) is
2,237.
7) Tenant's Percentage Share for Suite 201 is 1.60%.
Lessor: Lessee:
BPG Sansome, LLC Instant Video Technologies, Inc.
a Delaware limited liability company a Delaware corporation
000 Xxxxxxx Xxxxxx, Xxxxx 000 000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000 Xxx Xxxxxxxxx, XX 00000
By: BPG Partners, LLC By: /s/ Xxxxx Xxxxxxxxxxx
Managing Member ----------------------------
Print Name: XXXXX XXXXXXXXXXX
--------------------
By: /s/ Xxxxxxx X. Xxxxxxx Title: C.O.O.
----------------------- -------------------------
Xxxxxxx X. Xxxx
Manager
000 XXXXXXX XXXXXX COMPANY
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
ESTOPPEL CERTIFICATE (TENANT)
Re: Landlord: 000 Xxxxxxx Xxxxxx Company
a California limited partnership
Tenant: Instant Video Technologies, Inc.
Premises: Office Building located at
000 Xxxxxxx Xxxxxx,
Xxxxxx 000 and 000,
Xxx Xxxxxxxxx, Xxxxxxxxxx
Lease Dated: February 15, 1993
Commencement Date Original Date: February 16, 1993
of Lease; Amended Date: May 15, 1997
Basic Lease Term: Six (6) months
Security Deposit: $9,312.00
Gentlemen:
The undersigned, Tenant under the above described lease (the "Lease"),
hereby confirms, as of the date hereof the following:
1. That Exhibit A attached hereto and by this reference
incorporated herein is a true, complete and accurate copy of
the Lease.
2. The undersigned is in full and complete possession of the
Premises; that the Premises are accurately designated and
shown on Exhibit A; and that the information hereinabove as to
Landlord, Tenant, Premises, Lease Date, Commencement Date of
Lease, Basic Lease Term and Security Deposit is true and
correct.
3. That the Lease is in full force and effect; that there are no
existing conditions on the part of the Landlord under the
terms thereof, including without limitation, any requirement
of the Landlord to install tenant improvements, nor are there
any existing defaults under the Lease, or otherwise, which
would give the undersigned the right to cancel or terminate
the Lease. None
4. That subsequent to the date thereof; the Lease has not been
amended, modified, supplemented or superseded except as
follows:
First Amendment to Lease dated February 9, 1994
Second Amendment to Lease dated June 9, 1994
Third Amendment to Lease dated January 13, 0000
Xxxxxx Xxxxxxxxx to Lease dated June 12, 1995
Fifth Amendment to Lease dated February 13, 1996
Sixth Amendment to Lease dated August 2, 1996
Seventh Amendment to Lease dated May 1, 1997
EXHIBIT I
5. That the undersigned has received no rental inducements, free
rent, or any other economic inducement to enter into the
lease except as follows: None
6. That no rents have been prepaid except as provided by the
Lease; and that the undersigned does not now have or hold any
claims against Landlord which might be set off or credited
against future-accruing rents, except as follows: None
7. That the undersigned has received no notice of prior sale,
transfer, assignment, hypothecation or pledge of the Lease or
of the rents secured "herein," except as follows: None
8. That the undersigned has no options with respect to the
premises except as follows: Provided that Tenant is not in
default, tenant shall have the option to extend the term of
this Lease for an additional period of three (3) years (the
"Extension Term").
9. That the undersigned is not the subject of any bankruptcy,
reorganization or insolvency proceedings.
10. That the undersigned has no option or right of first refusal
to purchase the Office Building of which the Premises are a
part. The undersigned acknowledges that it is aware that this
Estoppel Certificate may be relied upon by any prospective
purchaser, mortgagee or beneficiary under any deed of trust or
any assignee or successor to any thereof.
Dated: 22 May, 1997
INSTANT VIDEO TECHNOLOGIES, INC.
--------------------------------
--------------------------------
By: ????????????
----------------------------
Its: Chairman/CEO
---------------------------
We agree with and confirm the information contained in the foregoing
Estoppel Certificate.
LANDLORD
000 XXXXXXX XXXXXX COMPANY,
a California limited partnership
By: _______________________________
Xxxxx X. Xxxx, its General Partner
Dated: _______________, 1997
EXHIBIT I
TENANT ESTOPPEL
August 31, 1998
Prime Capital Funding, LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
Re: Lease between BPG SANSOME, LLC, as Landlord or its assignees
("Landlord"), and INSTANT VIDEO TECHNOLOGIES, INC. as Tenant
("Tenant"), dated February 15, 1993 for approximately 3,468 square
feet of space in 000 Xxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx (the
"Project") (the "Lease")
Gentlemen:
Tenant understands that PRIME CAPITAL FUNDING, LLC or an affiliate
(together with its successors and assigns, "Lender") intends to make a loan to
BPG SANSOME, LLC ("Borrower") to be secured by the Project. Tenant presently
leases premises within the Project pursuant to the Lease, and, in connection
with the foregoing, Tenant does hereby certify to Borrower and Lender as
follows:
(a) The Lease is in full force and effect; there are no amendments or
modifications of any kind to the Lease except the following: First Amendment
dated February 9, 1994; Second Amendment dated June 9, 1994; Third Amendment
dated January 13, 1995; Fourth Amendment dated June 12, 1995; Fifth Amendment
dated February 13, 1996; Sixth Amendment dated August 2, 1996; Seventh Amendment
dated May 1, 1997; there are no other promises, agreements, understandings, or
commitments between Landlord and Tenant relating to the premises leased under
the Lease; and Tenant has not given Landlord any notice of termination
hereunder;
(b) There has not been and is now no subletting of the leased premises,
or any part thereof, or assignment by Tenant of the Lease, or any rights
therein, to any party;
(c) A security deposit in the amount of $9,312.00 has been given by
Tenant under the terms of, or with respect to, the Lease;
(d) No uncured default, event of default, or breach by Landlord exists
under the Lease, no facts or circumstances exist that, with the passage of time,
will or could constitute a default, event of default, or breach under the Lease.
Tenant has made no claim against Landlord alleging Landlord's default under the
Lease;
(e) Tenant is in full and complete possession of its leased premises in
the Project and has accepted its leased premises in the Project, including any
work of Landlord performed thereon pursuant to the terms and provisions of the
Lease, and all common areas of the Project (including, without limitation,
parking areas, sidewalks, access ways and landscaping) are in compliance with
the Lease and are satisfactory for Tenant's purposes;
(f) To the best of Tenant's knowledge and belief, there are no rental,
lease, or similar commissions payable with respect to the Lease, except as may
be expressly set forth therein;
(g) Tenant is obligated to pay rent to Landlord at the rate set forth
in the Lease. Tenant is current with respect to, and is paying the full rent and
other charges stipulated in the Lease (including, without limitation, common
area maintenance charges) with no offsets, deductions, defenses or claims; and
Tenant has not prepaid any rent or other amounts to Landlord other than rent and
other charges due and payable in the calendar month of this certification;
(h) Tenant is not entitled to any concession or rebate of rent or other
charges from time to time due and payable under the Lease, and there are no
unpaid or unreimbursed construction allowances or other offsets due Tenant under
the Lease;
(i) The current monthly estimated operating expense passthrough charge
paid by Tenant under the Lease is $292.00;
(j) The monthly storage rent under the month to month lease for storage
space is $0.00;
(k) The monthly base rent under the Lease is $6,936.00 and has been
paid by Tenant through August 31, 1998;
(l) Tenant is open for business and in operation in the Project;
(m) Tenant agrees to provide copies of all notices given to Landlord
under the Lease to Lender at the following address:
Prime Capital Funding, LLC
00 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxxx X. Xxxx, Senior Vice President
(n) The undersigned representative of Tenant is duly authorized and
fully qualified to execute this instrument on behalf of Tenant thereby binding
Tenant;
(o) Tenant agrees and acknowledges that the Lease is and shall be
subordinate to the mortgage/deed of trust in favor of Lender. Tenant agrees
that, in the event
2
Lender becomes the owner of the premises by foreclosure, conveyance in lieu of
foreclosure or otherwise, then Tenant shall attorn to and recognize Lender as
the landlord under the Lease for the remainder of the term hereof, and Tenant
shall perform and observe its obligations thereunder, subject only to the terms
and conditions of the Lease. Tenant further covenants and agrees to execute and
deliver upon request of Lender an appropriate agreement of attornment to Lender
and any subsequent titleholder of the premises.
(p) Tenant acknowledges that the initial term of the Lease commenced on
February 16, 1993, and shall expire on November 14, 2000, unless sooner
terminated in accordance with the terms of the Lease. Tenant has no option to
renew or extend the lease term, except as follows: None.
(q) Tenant has no option or right to purchase the property of which the
demised premises are a part, or any part thereof.
(r) Tenant understands and acknowledges that you are about to make a
loan to Landlord and receive as part of the security for such loan (i) a
Mortgage/Deed of Trust encumbering Landlord's fee interest in the Project (of
which the demised premises are a portion) and the rents, issues and profits of
the Lease (the "Mortgage"), and (ii) an Assignment of Leases and Rents
("Assignment of Leases") which affects the Lease, and that you (and persons or
entities to whom the Mortgage and/or Assignment of Leases may subsequently be
assigned) are relying upon the representations and warranties contained herein
in making such loan. Further, Tenant has notice that the Lease and the rent and
all other sums due thereunder have been assigned or are to be assigned to you as
security for the aforesaid loan secured by the Mortgage. In the event that you
(or any person or entity to whom the Mortgage and/or Assignment of Leases may
subsequently be assigned) notify Tenant of a default under the Mortgage of
Assignment of Leases and demand that Tenant pay its rent and all other sums due
under the Lease to you (or such future lender), Tenant shall honor such demand
and pay its rent and all other sums due under the Lease directly to you (or such
future lender) or as otherwise required pursuant to such notice.
Tenant acknowledges and agrees that Landlord and Lender shall be
entitled to rely on Tenant's certifications set forth herein. Tenant hereby
further agrees for a period of thirty (30) days from the date hereof to notify
Landlord and Lender in writing at the address set forth above of any changes in
the truth and accuracy of any of the certifications contained herein promptly
upon Tenant's learning of each such change.
3
IN WITNESS WHEREOF, Tenant has executed this instrument this 22nd day
of September, 1998.
TENANT:
-------
INSTANT VIDEO TECHNOLOGIES, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
-------------------------
Name: Xxxxxx X. Xxxxx
-----------------------
Title: V.P. General Counsel
----------------------
4
TENANT ESTOPPEL CERTIFICATE
To: FINOVA REALTY CAPITAL INC., a Delaware corporation, its
successors and assigns (collectively "Lender")
The undersigned hereby certifies and agrees as follows:
1. The undersigned is the tenant (the "Tenant") under that
certain Lease (the "Lease") by and between Tenant and BPG SANSOME, LLC, a
Delaware limited liability company (such party, together with its successors and
assigns hereinafter collectively referred to as the "Landlord") dated February
15, 1993 affecting space in the building known as Suites 502, 503 and 506,
located at 000 Xxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx (the "Building").
2. The Lease commenced on February 16, 1993.
3. The Lease expires on January 31, 2002. Tenant has no option
or other right to extend the term of the Lease beyond January 31, 2002.
4. Tenant has accepted and is occupying the entire premises
demised to it under the Lease (the "Premises") and all improvements to the
Premises required by the Lease have been completed by Landlord in accordance
with the Lease.
5. Tenant has not paid rent or additional rent beyond the
current month and agrees not to pay rent or additional rent more than one month
in advance at anytime.
6. Rent payable in the amount of $13,136.00 per month has been
paid through December 31, 1998.
7. To Tenant's knowledge, there are no defenses to or offsets
against the enforcement of the Lease or any provision thereof by the Landlord.
8. Tenant has deposited $9,312.00 as a security deposit with
Landlord pursuant to the terms of the Lease.
9. Landlord has not agreed to grant Tenant any free rent or
rent rebate or to make any contribution to tenant improvements. Landlord has not
agreed to reimburse Tenant for or to pay Tenant's rent obligation under any
other lease.
10. Tenant has not advanced any funds for or on behalf of
Landlord for which Tenant has a right to deduct from or offset against future
rent payments.
11. The Lease is in full force and effect without default
thereunder by Tenant or, to the best knowledge of Tenant, Landlord.
12. The Lease is the entire agreement between the Landlord and
Tenant pertaining to the Premises.
13. The Lease has not been amended, modified or supplemented
except the following: First Amendment dated February 9, 1994, Second Amendment
dated June 9, 1994, Third Amendment dated January 13, 0000, Xxxxxx Xxxxxxxxx
dated June 12, 1995, Fifth Amendment dated February 13, 1996, Sixth Amendment
dated August 2, 1996, Seventh Amendment dated May 1, 1997 and Eighth Amendment
dated October 12, 1998.
14. Tenant does not have any purchase option or first refusal
right with respect to the Building. Tenant does not have any right or option for
additional space in the Building.
15. Since the date of the Lease, there has been no material
adverse change in the financial condition of Tenant, and there are no actions,
whether voluntary or otherwise, pending against Tenant under the bankruptcy,
reorganization, arrangement, moratorium or similar laws of the United States,
any state thereof or any other jurisdiction.
16. Tenant will not seek to terminate the Lease or seek or
assert any set-off or counterclaim against the rent or additional rent by reason
of any act or omission of the Landlord, until Tenant shall have given written
notice of such act or omission to Lender.
Tenant acknowledges that Lender will rely on this Certificate
in making a loan or otherwise extending credit to Borrower.
INSTANT VIDEO TECHNOLOGIES, INC.,
a Delaware corporation
By: /s/ Xxxxx Xxxxxxxxxxx
----------------------------
Print Name: Xxxxx Xxxxxxxxxxx
--------------------
Title: C.O.O.
-------------------------
