EXHIBIT 10.21
LEASE AGREEMENT
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THIS LEASE AGREEMENT (the "Lease") is made and entered into as of the 13
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day of MAY, 1998 by and between Secured Properties Investors II, L.P., having a
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mailing address of Two Paces Ferry West, Suite 1600, 2727 Paces Ferry Road,
Attn. JAMESTOWN Management Corporation, Xxxxxxx, Xxxxxxx 00000 ("Landlord")and
City Search Inc., a Delaware corporation,having a mailing address of 790 E.
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Xxxxxxxx Xxxx, Xxxxx 000 Xxxxxxxx XX, 00000 ("Tenant").
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RECITALS:
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In consideration of the rent to be paid, the mutual covenants and
agreements herein contained and other good and valuable considerations, the
receipt and legal sufficiency of which are hereby acknowledged by the parties
hereto, Landlord hereby leases and rents to Tenant, and Tenant hereby leases and
rents from Landlord, the "Demised Premises" hereinafter described upon the
terms, provisions and conditions hereinafter set forth:
1. DEMISED PREMISES: Landlord hereby leases and rents to Tenant and
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Tenant hereby leases and rents from Landlord, that certain rental space
(hereinafter referred to as the "Demised Premises") containing approximately
7,880 square feet, shown outlined in red on the Building Plan attached hereto as
Exhibit "A," made a part hereof by reference and pertaining to a multi-tenant
building and related improvements (hereinafter referred to as the "Project")
which is on a tract of land (hereinafter referred to as the "Building Site")
fronting Triangle Drive in the Research Triangle Park, Durham County, North
Carolina and as described on Exhibit "B" attached hereto; together with the
nonexclusive license to use in connection with other tenants of the Project, all
of the parking areas, driveways, sidewalks and other common facilities made
available by Landlord from time to time to the Project, all subject to such
reasonable rules and regulations as may be prescribed by Landlord from time to
time.
2. IMPROVEMENTS AND DELIVERY OF DEMISED PREMISES: Landlord represents
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that it will cause the Demised Premises to be constructed thereon substantially
in accord with the Design Plans and specifications attached hereto as Exhibit
"C" and incorporated herein by reference. Finished Design Plans and
specifications (hereinafter referred to as the "Final Plans") 'for the Demised
Premises shall be prepared by Tenant's architect and consented to by Landlord,
which consent shall not be unreasonably withheld. The Final Plans for the
Demised Premises shall comply with all laws, ordinances, decrees, orders, rules
and regulations of any lawful authority, agency or governmental unit having
jurisdiction over the Demised Premises and Landlord's consent to the Final Plans
shall not be construed as a representation that the Final Plans are sufficient
for any purpose.
The date on which Landlord has completed construction of the Demised
Premises and obtained a certificate of Occupancy for the Demised Premises shall
be referred to herein as the
"Completion Date." Landlord shall provide notice to Tenant thirty (30) days
before the Completion Date. Landlord agrees to use due diligence in completing
construction of the Demised Premises as soon as possible after the date Tenant
delivers the Final Plans to Landlord. Landlord shall not be responsible for
delay(s) caused by or resulting from strikes, unavailability of materials,
casualty, acts of God, or any other matter(s) beyond its control, and the
Completion Date shall be automatically extended for the period(s) of time caused
by such delay(s). If Landlord, due to circumstances beyond its reasonable
control, is unable to substantially complete construction of the Demised
Premises within one hundred eighty (180) days after the date Tenant delivers the
Final Plans to Landlord, this Lease may be terminated at the option of Landlord
or Tenant. Such options shall be exercised, if at all, by delivery of not less
than 30 days advance notice of same to the other party and, upon any such
termination, neither party shall have any rights against the other. Completion
of the Demised Premises shall not include punch-list items that may be completed
after Tenant takes occupancy. All improvements constructed by Landlord pursuant
to this paragraph shall remain the property of Landlord.
At any time after the execution of this Lease and prior to the Completion
Date, Tenant, its agents and contractors, shall have the privilege of entering
upon the Demised Premises at their sole risk for the purpose of taking
measurements, making tenant improvements, and for any other purpose expressly
permitted by Landlord; provided, however, such entry shall not interfere with,
hinder, obstruct or delay the progress of construction by Landlord of the
Project.
Upon final completion of the Demised Premises, Landlord shall furnish
Tenant a certificate of occupancy from the appropriate governmental authority
having jurisdiction. Upon receipt of this item, Tenant agrees that it accepts
the Demised Premises "as is" and pursuant to Section 9 hereof, Tenant agrees to
take full responsibility for the Demised Premises.
In connection with Landlord's construction obligation, Landlord shall pay a
tenant improvement allowance not to exceed $66,980.00 (the "Construction
Allowance"), for the improvements referenced herein, including preparation of
Final Plans, architectural and engineering fees, attorneys' fees, permit costs
and actual hard construction costs. In no event shall Landlord be obligated to
pay any amount for the improvements referenced herein which exceeds the
Construction Allowance. Any unused portion of the Construction Allowance shall
be deemed forfeited by Tenant.
All facilities furnished to the Project and designated for the general use,
in common, of occupants of the Project (including Tenant hereunder, its
officers, agents, employees and business guests) including, but not limited to,
parking areas, streets, sidewalks, canopies, roadways, shelters, driveways,
landscaped areas and other similar facilities (herein called "common
facilities"), shall be subject at all times to the right of Landlord to change
from time to time the area, level, location, and arrangement of such common
facilities, to restrict parking by tenants, their employees, and business guests
to designated parking areas, and to make all reasonable rules and regulations
and do such further things from time to time as in Landlord's sole discretion
may be necessary or appropriate regarding said common facilities.
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3. TERM AND OPTION TO RENEW: The initial term of this Lease (the "Initial
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Term") shall begin on the Completion Date and shall end at 12:00 o'clock
midnight on the date five years from the Completion Date, In addition to the
Initial Term, and provided Tenant is not in default under any of the terms,
provisions or conditions of this Lease, Tenant shall have one option to renew
(the "Option") the term of this Lease for a period of five years (the "Option
Period") at the rental for each Option Period specified in Section 4 hereof,
such Option to renew being exercisable by written notice to Landlord not less
than 180 days prior to the end of the Initial Term. (The Initial Term together
with any Option Period is collectively referred to as the "Lease Term.") Time
is of the essence with respect to the time of exercise of each option to renew
and any failure to renew shall extinguish all subsequent renewal options.
4. RENTAL: Tenant shall pay to Landlord for the use and occupancy of the
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Demised Premises during the first year of Initial Term an initial annual rental
of $9.75 per square foot, payable in equal monthly installments of $6,402.50 in
advance on or before the first day of each and every month beginning on the
Completion Date. During the remainder of the Lease Term, base rent shall
increase by three percent per year, effective on each 12-month anniversary date
of the Completion Date. All rental payments provided herein shall be payable to
Landlord, until notice to the contrary is given by Landlord. Tenant shall have
no right to offset against rent hereunder. Any payment of rent not received on
or before the first day of the month shall incur a late fee equal to fifty
dollars ($50.00). In addition, any amounts of rent not paid when due hereunder
shall bear interest at the rate of ten percent (10%) per annum from the date due
until paid in full.
As security for the faithful performance by Tenant throughout the term, and
any extensions or renewals thereof, of all the terms and conditions of the Lease
on the part of Tenant, Tenant shall deposit with Landlord the sum of $6,402.50
(the "Security Deposit") on the date Tenant executes and delivers this Lease to
Landlord. Such amount shall be returned to Tenant, without interest, after the
expiration of the Lease Term, provided Tenant has fully and faithfully observed
and performed all of the terms, covenants, agreements, warranties and conditions
hereof on its part to be observed and performed. Landlord shall have the right
to apply all or any part of the Security Deposit toward the cure of any default
of Tenant. If all or any part of said security deposit is so applied by
Landlord, then Tenant shall immediately pay to Landlord an amount sufficient to
return said security deposit to the balance on deposit with Landlord prior to
said application, Neither Landlord nor its agents shall be required to keep the
Security Deposit separate from their general accounts, it being agreed that the
Security Deposit may be commingled with other funds of Landlord or of its
agents. It is further agreed and acknowledged by Tenant that Landlord or its
agents shall have the right to deposit the Security Deposit in an interest-
bearing account, and all interest accrued on the Security Deposit shall belong
to Landlord and will be retained by Landlord as its property.
5. USE OF DEMISED PREMISES: Tenant shall use the Demised Premises only
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for general office purposes and shall not use or store any environmental
contaminants, as defined by either state of federal law, on the Demised
Premises, other than janitorial supplies and other
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substances commonly used for office purposes. Tenant shall comply with all laws,
ordinances, decrees, orders, rules, and regulations of any lawful authority,
agency or governmental unit having jurisdiction over the Demised Premises.
However, Tenant shall not, by reason of such compliance, be required to make any
repairs or alterations to the Demised Premises unless such repairs or
alterations are required by Tenant's particular use of the Demised Premises.
Tenant shall save the Landlord harmless from penalties, fines, costs, expenses
or damages resulting from any failure of the Tenant to perform its obligations
under this Section. Tenant shall not do any act or follow any practices in or
about the Demised Premises which shall constitute a nuisance or detract from or
impair the reputation of the Project. Without limiting the generality of the
foregoing, Tenant shall make such arrangements for the storage and timely
disposition of all garbage and refuse as may be required in order to keep the
Demised Premises in a neat and orderly condition, clean and free from rubbish,
dirt, snow and ice, and shall not cause disturbing or offensive odors, fumes, or
gases or any smoke, dust, steam or vapors, or any loud or disturbing noise or
vibrations to be emitted from the Demised Premises.
Tenant understands and acknowledges that the Demised Premises are part of
the Research Triangle Park and are subject to special zoning requirements and
regulations under the Durham County Zoning Ordinance (the "Zoning Ordinance").
Tenant represents to Landlord that Tenant has conducted its own independent
investigation of the Zoning Ordinance as same relates to Tenant's intended use
and occupancy of the Demised Premises, and Tenant has satisfied itself that its
intended use and occupancy of the Demised Premises will not violate the Zoning
Ordinance.
6. TAXES: Tenant covenants and agrees to pay promptly all Taxes affecting
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the Demised Premises which are now or may hereafter be imposed or assessed upon
the Demised Premises, except as otherwise expressly provided for in this Lease.
The word "Taxes" shall mean (i) all real estate taxes, payable (adjusted after
protest or litigation, if any) for any part of the Lease Term, exclusive of
penalties or discounts, on the Project, (ii) any taxes which shall be levied in
lieu of any real estate taxes, (iii) any special assessments for benefits on the
Project (except any payable in whole or in part during the base year for taxes)
and (iv) the expense of contesting the amount or validity of any such Taxes,
charges or assessments, such expense to be applicable to the period of the item
contested (Landlord hereby exclusively reserving the right to contest same).
With respect to any Taxes for which the Demised Premises are not separately
assessed. Tenant shall pay its proportionate share ("Tenant's Proportionate
Share"), which will be determined by dividing the total number of square feet of
the Demised Premises by the total number of square feet of rentable floor area
of the entire Project. Landlord shall not be required to pay any taxes or
assessments of any nature imposed or assessed upon fixtures, equipment,
machinery, merchandise or other property installed in the Demised Premises or
brought thereon by Tenant or at Tenant's direction, but such shall be the
obligation of Tenant, and Tenant agrees that it will promptly pay all such taxes
or assessments before they become delinquent.
Tenant shall pay to Landlord in monthly installments on the same day that
rent is due hereunder, an amount equal to one-twelfth (1/12th) of the Taxes due
hereunder, as estimated by
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Landlord in good faith from time to time. As soon as practical after the close
of each xxxxxxxxx year during the Lease Term, Landlord shall furnish a statement
in writing to Tenants specifying the actual amount due by Tenant in respect of
Taxes. In the event the total of the monthly payment theretofore made by Tenant
under this Section for such year exceeds the actual amount due, then the excess
shall be applied pro rata as a credit on the monthly installments thereafter
coming due, In the event that the total monthly payments made by Tenants under
this Section is less than the actual amounts due, any such deficiency shall be
due and payable by Tenant to Landlord within 10 days after Tenant's receipt of
such statement.
7. FIRE AND EXTENDED COVERAGE INSURANCE: Landlord will maintain and pay
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for "all-risk" and "named perils" coverage in an amount at least equal to the
value of the Project. Tenant will provide and pay for all insurance on its own
contents in the Demised Premises. Tenant shall pay a proportionate share (said
"proportionate share" to be determined in the same manner as "Tenant's
Proportionate Share" under Section 6 hereof) of the insurance premium provided
for in this Section, due in monthly installments as estimated by Landlord.
8. LANDLORD'S COVENANT TO REPAIR AND REPLACE: In the event it becomes
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necessary during the Lease Term to repair utility lines prior to the point of
entry into the Demised Premises, roof, exterior walls, or structural members,
including foundation and subflooring, of the Demised Premises, Landlord shall
make such repairs or replacements at its sole cost and expense within a
reasonable time after demand to do so by Tenant, unless such repairs or
replacements are required as a result of the negligence, misconduct or
intentional acts or omissions of Tenant, its employees, invitees or licensees,
and in that event such necessary repairs or replacements shall be made at
Tenant's sole expense.
Provided Landlord's work does not unreasonably interfere with Tenant's use
of the Demised Premises, Landlord shall repair and replace the IIVAC systems
within the Demised Premises, as necessary, after termination of Tenant's
obligation to perform such work as provided in Paragraph 9.
9. TENANT'S COVENANT TO REPAIR AND MAINTAIN: Except as expressly
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provided in Section 8 hereof, Tenant will, at its own expense, keep and maintain
in good order and repair, and replace as necessary, during the Lease Term all
parts of the Demised Premises, including the plumbing, wiring, electrical
systems, heating systems, air conditioning systems and equipment and machinery
constituting fixtures, unless any of such repairs are required by the negligence
of Landlord, in which case such repairs shall be made at Landlord's expense; and
Tenant will, upon termination or expiration of this Lease, deliver the Demised
Premises to the Landlord in as good condition as they were when received by it,
excepting only normal wear and tear, acts of God and repairs required to be made
by Landlord pursuant to the provisions of Section 11 hereof. Tenant shall bear
the expense of any trash, janitorial and/or cleaning services necessary to
maintain the Demised Premises in the condition required by this Lease. In
addition, Tenant shall bear a proportionate share (said "proportionate share" to
be determined in the same manner as "Tenant's Proportionate Share" under Section
6 hereof) of the cost of any maintenance
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or cleaning services necessary to maintain the common areas in the condition
required by this Lease.
Landlord shall deliver space at occupancy with a fully operational HVAC
system. After tenant takes possession of the space, Tenant shall be obligated to
repair and replace the HVAC system within the Demised Premises up to $1,000 in
any given year, each year commencing on the anniversary of the Completion
Date. Tenant's obligations hereunder shall be cumulative, but Tenant's
obligation to repair the HVAC system shall not exceed $5,000 over the life of
the Lease Term. Tenant agrees to keep in force throughout the Lease Term, at its
expense, a standard maintenance agreement on all HVAC equipment serving the
Demised Premises from a vendor approved by Landlord and to provide a copy of the
maintenance agreement to Landlord accompanied by proof of payment of the service
fee therefor, Repairs to the HVAC system shall be tested and approved by the
approved HVAC maintenance vendor.
10. ALTERATIONS BY TENANT: Except for structural work, for which
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Landlord's consent shall be required (at Landlord's sole and absolute
discretion), Tenant may at any time during the Lease Term (if Tenant shall not
then be in default), at its own expense, make non-structural alterations,
additions or improvements ("Alterations") upon or to the interior of the Demised
Premises, as Tenant deems desirable, without Landlord's consent, provided that
such Alterations: shall be performed in a good and workmanlike manner, in
conformity with applicable building codes and governmental laws and
requirements; do not endanger or in any way impair the structural integrity of
the Demised Premises; and cost in the aggregate no more than $5,000.00. Such
Alterations, when made, become the property of Landlord and shall remain upon
and be surrendered with the Demised Premises as a part thereof at the expiration
of the Lease Term. Landlord shall have no obligation (other than its obligation
to incorporate into the Demised Premises the improvements shown on the Final
Plans) to make any alterations, improvements or repairs to the Demised Premises.
11. DAMAGE OR DESTRUCTION OF DEMISED PREMISES: If the Demised Premises
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shall be damaged by fire or other casualty, but are not thereby rendered
untenantable in whole or in part in Landlord's reasonable opinion, Landlord
shall without unreasonable delay, cause such damage to be repaired within one
hundred eighty (180) days, and the rental shall not be abated.
In the event the Demised Premises shall be destroyed or damaged and
rendered untenantable, Landlord may, at its option, terminate this Lease by
notice to Tenant, provided that: such notice shall be delivered to Tenant within
sixty (60) days of the destructive event and such termination shall not affect
any rights theretofore accrued to Landlord hereunder because of prior defaults
of Tenant. Except as herein provided, there shall be no obligation on Landlord
to repair or rebuild in case of fire or other casualty, in the event of damage
or destruction not covered by the insurance required of Landlord herein. In the
event Landlord elects not to repair or rebuild the Demised Premises, Tenant
shall have the right, on ten (10) days notice, to terminate this Lease. If
Landlord elects to repair or rebuild the Demised Premises and the anticipated
period for
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substantial completion of such repair and rebuilding exceeds (i) two hundred and
seventy (270) days, or (ii) the end of the Initial Term (or the end of the
Option Period, if applicable), Tenant shall have the right, on ten (10) days
notice, to terminate this Lease.
Tenant's rental and all other charges under this Lease shall be fully
abated during any time period when the Demised Premises are destroyed or damaged
and rendered untenantable. If Tenant is able to occupy and does occupy a portion
of the Premises during such time period, rental and other charges under this
Lease shall be shared only for the portion of the Demised Premises not occupied
by Tenant.
12. MUTUAL WAIVER OF SUBROGATION: Tenant and Landlord each hereby waive,
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and shall cause their respective insurers to similarly waive, any and all rights
of recovery against the other, or against the officers, employees, partners,
agents and representatives of the other, for loss of or damage to the property
of the waiving party or the property under its control, to the extent such loss
or damage is (or would have been) insured against under any insurance policy
carried or required to be carried) by Landlord or Tenant hereunder.
13. TRADE FIXTURES AND EQUIPMENT: Any trade fixtures or equipment
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(collectively, the "fixtures") installed in or attached to the Demised Premises
by or at the expense of the Tenant shall remain the property of Tenant, provided
it is not then in default hereunder, Tenant shall have the right to remove any
and all of such fixtures; provided, however, that in such event Tenant shall
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restore the Demised Premises to substantially the same condition in which they
were at the time Tenant took possession, ordinary wear and tear excepted. Any
such fixtures not removed at or prior to such termination shall be and become
the property of Landlord.
14. UTILITIES: During the Lease Term, the Tenant shall pay for all
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electricity, gas, heat, air conditioning, water, sewerage, janitorial services,
garbage disposal and other utilities or services relating to its use and/or
occupancy of the Demised Premises. Landlord shall have no duty or responsibility
to Tenant for the stoppage or interruption of such utilities or services.
Landlord hereby confirms that the Demised Premises currently are served by
electricity, gas, heat, air conditioning and water, Tenant shall be permitted to
bring ISDN, T-1 or other necessary telecommunications facilities to the Demised
Premises, provided that: all of such work shall be done at Tenant's cost and
expense and Tenant indemnifies Landlord for any damages incurred by Landlord
with respect to such work.
15. SIGNS AND ADVERTISING: In order to preserve the overall architectural
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continuity and aesthetic harmony of the Project, Tenant may install only such
signs, marquees, billboards, outside lighting fixtures and/or other decorations
on the Demised Premises as may from time to time be approved in writing by
Landlord, such approval not to be unreasonably withheld, and as shall not damage
or impair the attractiveness of the Project; provided, however that the care
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and maintenance of such signs shall be the sole responsibility of Tenant and
Tenant also must obtain the consent of the Research Triangle Foundation.
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16. INDEMNIFICATION AND PUBLIC LIABILITY INSURANCE: Tenant indemnifies and
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holds Landlord harmless from any injury or damage to Landlord or its agents or
employees and from any and all liability for injury to third persons or damage
to the property of third persons, including cost, expenses, and reasonable
counsel fees, while lawfully upon the Demised Premises occurring by reason of
any negligent act or omission of Tenant, its agents, or employees. Tenant shall,
at all times during the term hereof, keep in force at its own expense in such
amounts and with such companies as shall from time to time be acceptable to
Landlord (and to any lender having mortgage interest in the Demised Premises)
and naming as insured both Landlord and Tenant: public liability insurance with
minimum limits of $2,000,000.00 on account of bodily injury or death of one or
more persons, and $1,000,000,00 on account of damage to property; and fire
insurance with extended coverage equal to the replacement cost of Tenant's
betterments, improvements and contents on or in the Demised Premises to the
extent of such betterments, improvements, and contents. Tenant will furnish to
Landlord at least five (5) working days prior to the Completion Date, copies of
policies or certificates of insurance evidencing the coverages required by this
Lease. All policies required hereunder shall provide for waiver of subrogation
and shall contain an endorsement providing that the insurer will not cancel or
materially change the coverage of said policy or policies without first giving
thirty (30) days' prior written notice thereof to Landlord. Landlord will
furnish to Tenant within five (5) days of the Completion Date evidence of the
indemnification and liability insurance carried by the Landlord,
17. LANDLORD'S RIGHT OF ENTRY: The Landlord and those persons authorized
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by it shall have the right to enter upon the Demised Premises at all reasonable
times during the Lease Term for the purposes of inspection, and to show the
Demised Premises to prospective tenants, purchasers and/or lenders provided
Landlord has given Tenant at least twenty-four (24) hour notice.
18. EMINENT DOMAIN: If more than twenty percent (20%) of the Building Site
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or any portion of the Demised Premises is taken under the power of eminent
domain (including any conveyance made in lieu thereof) and such taking shall
make the operation of Tenant's business on the Demised Premises unfeasible, then
Tenant shall have the right to terminate this Lease by giving Landlord written
notice of such termination within thirty (30) days after such taking; and if
Tenant does not so elect to terminate this Lease, Landlord, at its own expense,
will repair and restore the Demised Premises to tenantable condition, and the
rental to be paid by Tenant hereunder shall be proportionately and equitably
reduced.
All compensation awarded for any taking (or the proceeds of private sale in
lieu thereof) whether for the whole or a part of the Demised Premises, shall be
the property of the Landlord, and Tenant hereby assigns all of its interest in
any such award to Landlord; provided, however, Landlord shall have no interest
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in any award made to Tenant for loss of business or for the taking of Tenant's
fixtures and other property within the Demised Premises if a separate award for
such items is made to Tenant.
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19. EVENTS OF DEFAULT: If any one or more of the following events ("Events
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of Default") shall occur;
a. if the Tenant shall default in the payment when due of any
rental or other sum of money specified hereunder to be paid by Tenant five
days after written notice of same; or
b. if Tenant shall default in the performance of any other of the
terms, conditions, or covenants contained in this Lease to be performed or
observed by it and Tenant does not remedy such default within thirty days
after written notice thereof; or
c. if the Tenant shall become bankrupt or insolvent; or
d. if the Tenant shall vacate, fail to operate in or abandon the
Demised Premises or any substantial part thereof or suffer the Lease to be
taken under any writ of execution and such writ is not vacated or set aside
within fifteen (15) days;
Then in the case of any one or more of such Events of Default, Landlord
will have the right to terminate and cancel this Lease; to the full extent
allowed by law, the right to place a lien on Tenant's personal property located
at the Demised Premises; or, without excluding other rights or remedies that it
may have, Landlord shall have the immediate right of reentry and may remove all
persons and properties from the Demised Premises and dispose of such property as
it deems fit, all without resort to legal process and without being deemed
guilty of trespass, or becoming liable for any loss or damage which may be
occasioned thereby. If the Landlord should elect to reenter as herein provided,
or should it take possession pursuant to legal proceedings, it may either
terminate this Lease or it may from time to time without terminating this
Lease, make such alterations and repairs as may be necessary or appropriate in
order to relet the Demised Premises, and relet the Demised Premises for such
term and at such rental and upon such other terms and conditions as the Landlord
may deem advisable. No such reentry or taking possession of the Demised Premises
by the Landlord shall be construed as an election to terminate this Lease unless
a written notice of such intention is given by the Landlord to the Tenant at the
time of such reentry; but, notwithstanding any such reentry or reletting without
termination, the Landlord may at any time thereafter elect to terminate this
Lease for such previous breach. In the event of any termination by Landlord,
whether before or after reentry, Landlord may recover from the Tenant damages
incurred by reason of such breach, including without limitation, the
out-of-pocket costs and expenses incurred by Landlord in recovering the Demised
Premises. Tenant shall remain liable to the Landlord for the rental hereinabove
specified until the expiration of the term of the Lease or earlier termination
date, less the rentals actually received by Landlord from any reletting.
Landlord shall not be liable to Tenant for rentals received from any reletting
in excess of the rental specified in this Lease.
20. SUBORDINATION: Tenant shall, upon request by Landlord, subject and
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subordinate all or any of its rights under this Lease to any and all mortgages
and deeds of trust
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now existing or hereafter placed on the property of which the Premises are a
part, Tenant agrees that this Lease shall remain in full force and effect
notwithstanding any default or foreclosure under any such mortgage or deed of
trust and that it will attorn to the mortgagee, trustee or beneficiary of such
mortgage or deed of trust and their successors or assigns and to the purchaser
or assignee under such foreclosure. Tenant will, upon request by Landlord,
execute and deliver to Landlord or to any other person designated by Landlord
any instrument or instruments required to give effect to the provisions of this
Section. In conjunction therewith, Landlord shall use its best efforts to obtain
a non-disturbance agreement acceptable to Tenant.
21. ASSIGNING, MORTGAGING, SUBLETTING: Tenant agrees not to assign,
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sublet, mortgage, pledge or encumber this Lease in whole or in part, without
first obtaining the written consent of Landlord, which consent shall not be
unreasonably withheld. Tenant agrees that, in the event of any such assignment,
mortgaging or subletting made with the written consent of Landlord as aforesaid,
Tenant will nevertheless remain primarily liable for the performance of all of
the terms, conditions and covenants of this Lease on its part to observe, comply
with or perform. This Lease is binding on all successors and assigns.
22. ESTOPPEL CERTIFICATE: Within ten (10) days after request therefor by
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Landlord or any mortgagee or trustee, Tenant shall deliver in form recordable in
the office of the Register of Deeds of Durham County, North Carolina, a
certificate in form satisfactory to Landlord and directed to the proposed
mortgagee, purchaser or other transferee, and/or to Landlord, certifying any
facts that are then true with respect to this Lease, including, without
limitation (if such be the case), that this Lease is in full force and effect,
that no default exists on the part of Landlord or Tenant under the Lease, that
Tenant is in possession, that Tenant has commenced the payment of rent, and that
there are no defenses or offsets claimed by Tenant with respect to the rentals
under the Lease.
23. ADDITIONAL, COVENANTS OF TENANT. Tenant covenants and agrees to do all
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things necessary to prevent the filing of any mechanics' or other liens against
the Demised Premises or any part thereof by reason of work. labor, services or
materials supplied or claimed to have been supplied to Tenant, or anyone holding
the Demised Premises or any part thereof, through or under Tenant. If any such
lien shall at any time be filed against Tenant's interest in the Demised
Premises, Tenant shall either cause the same to be discharged of record within
twenty (20) days after the date of filing of the same, or, if Tenant, in
Tenant's discretion and in good faith, determines that such lien should be
contested, shall furnish such security as may be necessary or required to
prevent any foreclosure proceedings against Tenant's interest in the Demised
Premises during the pendency of such contest. If Tenant shall fail to discharge
such lien within such period or fail to furish such security, then, in addition
to any other rights or remedies of Landlord resulting from Tenant's default,
Landlord may, but shall not be obligated to, discharge the same either by paying
the amount claimed to be due (in which event Tenant shall immediately reimburse
Landlord for all sums so paid by Landlord and all costs and expenses incurred by
Landlord in connection with the performance of such act together with interest
on the aggregate of such sums, costs and expenses at the maximum legal rate
payable by corporate
10
borrowers under North Carolina law at the time of Tenant's failure, but in no
event more than 15% per annum) or by procuring the discharge of such lien by
giving security or in such other manner as is, or may be, prescribed by law.
Nothing contained herein shall imply any consent or agreement on the part of
Landlord to subject Landlord's estate to liability under any mechanics' or other
lien law.
24. FORCE MAJEURE: In the event that Landlord or Tenant shall be delayed,
-------------
hindered or prevented from the performance of any act required hereunder, by
reason of governmental restrictions, scarcity of labor or materials, strikes,
fire, or any other reason beyond its reasonable control, the performance of such
act shall be excused for the period of delay, and the period of the performance
of any such act shall be extended for the period necessary to complete
performance after the end of the period of such delay. Notwithstanding anything
herein contained to the contrary, the provisions of this Section shall not be
applicable to Tenant's obligation to pay rent or any other sum, monies, costs,
charges or expenses required to be paid by Tenant on and subsequent to the
Completion Date.
25. REMEDIES CUMULATIVE -- NONWAIVER: No remedy herein or otherwise
--------------------------------
conferred upon or reserved to Landlord shall be considered exclusive of any
other remedy, but the same shall be distinct, separate and cumulative and shall
be in addition to every other remedy given hereunder or now or hereafter
existing at law or in equity or by statute and every power and remedy given by
this Lease to Landlord may be exercised from time to time as often as occasion
may arise, or as may be deemed expedient. No course of dealing between Landlord
and Tenant, or delay or omission of Landlord to exercise any right or power
arising from any default on the part of the Tenant shall impair any such right
or power, or shall be construed to be a waiver of any such default or an
acquiescence thereto.
26. LIABILITY AND INDEMNITY: Landlord shall not have any liability to
-----------------------
Tenant or any of Tenant's officers, employees or agents for any damage or injury
to person or property, or both, directly or indirectly caused by or arising
from, in whole or in part, any act or failure to act of Landlord or any of
Landlord's employees or agents, unless such damage or injury is the direct
result of the negligence of Landlord or the failure of the Project to comply
with applicable local, state, and federal regulations, including but not limited
to the Americans With Disabilities Act, provided such was enacted subsequent to
the delivery of Final Plans. Landlord shall have no personal liability with
respect to any of the provisions of this Lease. If Landlord is in default with
respect to its obligations under this Lease, Tenant shall look solely to the
equity of Landlord in and to the Demised Premises for satisfaction of Tenant's
remedies, if any. It is expressly understood and agreed that Landlord's
liability under the terms of this Lease shall in no event exceed the amount of
its interest in and to the Demised Premises. Such exculpation of personal
liability is absolute and without exception whatsoever. All personal property
brought into the Demised Premises by Tenant, or Tenant's employees, agents, or
business visitors, shall be at the risk of Tenant only, and Landlord shall not
be liable for theft thereof or any damage thereto occasioned by any act of co-
tenants, occupants, invitees or other users of the Improvements or any other
person.
11
Moreover, during the Lease Term, Tenant shall pay, and shall protect, indemnify
and hold harmless Landlord and Landlord's beneficiaries, employees and agents
from, against and in respect of, all liabilities, damages, losses, costs,
expenses (including all reasonable attorneys' fees and expenses of Landlord),
causes of action, suits, claims, demands and judgments of any nature whatsoever
arising out of, by reason of or in connection with the Lease.
27. HOLDING OVER: If Tenant remains in possession of the Demised
------------
Premises or any part thereof after the expiration of the Lease Term, with
Landlord's acquiescence and without any written agreement between the parties,
Tenant shall be only a tenant at will and there shall be no renewal of this
Lease or any exercise of the Option by operation of law.
28. NOTICES: Any notice provided for herein shall be deemed to have been
-------
sufficiently served if the same shall be in writing and placed in the United
States mail, via certified mail or registered mail, return receipt requested,
with postage prepaid and in the proper amount, and addressed as shown on page
one (1), with a copy to X. Xxxxxx Xxx III, Esq., Holland & Knight, LLP, 0000
Xxxx Xxxxxxxxx, X,X., Xxxxx 0000, Xxx Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000-
3400 and Xxxxxxx XxXxxxxxx, CitySearch, 000 X, Xxxxxxxx Xxxx., Xxxxx 000,
Xxxxxxxx, Xxxxxxxxxx 00000.
The address of both Landlord and Tenant and the person, if any, to whose
attention a notice or copy of same shall be directed, may be changed or added
from time to time by either party serving written notice upon the other, in the
above-prescribed manner.
29. NATURE AND EXTENT OF AGREEMENT: This instrument contains the complete
------------------------------
agreement of the parties regarding the terms and conditions of the lease of the
Demised Premises, and there are no oral or written conditions, terms,
understandings or other agreements pertaining thereto which have not been
incorporated herein. This instrument creates only the relationship of Landlord
and Tenant between the parties hereto as to the Demised Premises; and nothing
herein shall in any way be construed to impose upon either party hereto any
obligations or restrictions not herein expressly set forth. The laws of the
State of North Carolina shall govern the validity, interpretation, performance
and enforcement of this Lease. Notwithstanding that this Lease was drafted by
Landlord, in the event of any ambiguous provisions hereof, there shall be no
presumption in favor of either Landlord or Tenant.
30. BINDING EFFECT: This Lease shall be binding upon and shall inure to
--------------
the benefit of the parties hereto and their respective successors and assigns
during the Lease Term.
31. ATTORNEYS' FEES: If either party commences an action against the other
---------------
party arising out of or in connection with this Lease, the prevailing party
shall be entitled to have and recover from the losing party reasonable
attorneys' fees and costs of suit. Notwithstanding, Tenant shall be responsible
for Landlord's attorney's fees in any suit or threatened suit by Landlord to
collect rent.
12
32. BROKERS: Tenant represents that it has not engaged a broker in
-------
connection with this Lease, other than Xxxxxx Commercial, Inc., which will not
be owed a separate commission from Landlord (other than its participating share
from Landlord's broker), and agrees to indemnify and hold Landlord harmless from
any claim made by a broker with respect to this Lease.
33. CAPTIONS AND HEADINGS: The captions and headings throughout this Lease
---------------------
are for convenience and reference only, and the words contained therein shall in
no way be held or deemed to define, limit, describe, explain, modify, amplify or
add to the interpretation, construction, or meaning of any provision of or the
scope or intent of this Lease or in any way affect this Lease.
34. HAZARDOUS MATERIALS: Landlord agrees to defend, indemnify and hold
-------------------
harmless Tenant, its officers, directors, employees and agents from and against
any and all liability, loss, suits, claims, actions, causes of action,
proceedings, demands, costs, penalties, fines and expenses, including without
limitation attorney's fees, consultant's fees, litigation costs and cleanup
costs asserted against or incurred by Tenant at any time and from time to time
by reason of or arising out of the generation, storage, treatment, handling,
transportation, disposal or release, other than by Tenant or any of its agents,
of any Hazardous Materials, as such term is defined by North Carolina law, at or
upon the Project.
35. AUTHORITY: The parties executing this Lease hereby represent and
---------
warrant that they have all necessary power and authority to execute and deliver
this Lease on behalf of the Landlord and Tenant, respectively.
36. QUIET ENJOYMENT. Landlord covenants that upon Tenant's paying the rent
---------------
and performing each of Tenant's covenants hereunder, Tenant may peaceably and
quietly have, hold, and enjoy the Demised Premises, subject to the terms and
conditions of this Lease.
13
IN WITNESS WHEREOF, the parties hereto have caused these presents to be
executed in their corporate names and their corporate seals hereto affixed, all
in pursuance of authority duly given by their respective Boards of Directors, as
of the day and year first above written.
SECURED PROPERTIES INVESTORS II, L.P.
By: JAMESTOWN
[SIGNATURE ILLEGIBLE]
By:----------------------------
__________________
Secretary
CITYSEARCH, INC.
/s/ Xxxxxxx XxXxxxxxx
Name:------------------------
Chief Legal Officer
Title:-----------------------
[CORPORATE SEAL]
[SIGNATURE ILLEGIBLE]
---------------------
Secretary
14
STATE OF _______________
COUNTY OF ______________
This ___ day of ________________ , 19__, personally came before me
_______________________ who being by me duly sworn, says that he is
__________________________ of _________________________________________ that the
seal affixed to the foregoing instrument in writing is the corporate seal of the
Corporation, and that said writing was signed and sealed by him in behalf of
said Corporation, by its authority duly given, and the said _________________
acknowledged the said writing to be the act and deed of said Corporation.
_________________________
Notary Public
My Commission Expires:
_____________________
[NOTARY SEAL]
EXHIBIT "A"
-----------
[PLAN APPEARS HERE]
EXHIBIT "B"
-----------
BEING that certain acre tract of land fronting Service Drive, in
the Xxxxxxxx Xxxxxxxx Xxxx, Xxxxxx Xxxxxx, Xxxxx Xxxxxxxx, as
described on that certain survey dated December 5, 1979, and
prepared by Boney & Associates, Inc. of Raleigh, North Carolina
and being recorded in Book of Maps 95 at Page 199 in the office
of the Register of Deeds, Durham County, North Carolina.
EXHIBIT "C"
-----------
[LETTERHEAD OF PRIME BUILDING COMPANY APPEARS HERE]
April 14, 1998
Xx. Xxx Xxxxxxxxx
Operations Manager
Xxxxxxxxxx.xxx
0000 Xxxxxx Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxxx, XX 00000
Dear Rob:
Prime Building is pleased to offer the following budget estimate for your
proposed relocation to the MET building at 0 Xxxxxxxx Xxxxx in RTP.
Our price is based on my site visit with Xxx Xxxxxxx last week and the single
page floor plan I received from your office.
Lump sum total at this stage is Sixty nine thousand two hundred fifty three
dollars ($69,253.00).
Once a building permit is secured, we estimate a 4 week construction schedule.
In the meantime, I would be happy to provide carpet, paint and wallcovering
samples for your review.
Attached please find a detailed cost estimate with assumptions and
clarifications for your review. Contact me at the office should you have any
additional questions.
Respectfully,
/s/ Xxxxxxx Xxxxxxxxxxx
Xxxxxxx Xxxxxxxxxxx
Project Estimator
xxxxxxxxxx.xxx
Cost Breakdown
April 14, 1998
Field Administration-supervision, truck and mileage, phone and pager, $ 5,500.00
---------------------
equipment rental, dumpster and debris removal, general cleaning
Architectural and Engineering--- allowance for design services $ 8,000.00
---------------------------------
Demolition - remove indicated walls, doors and frames, floor coverings, $ 6,884.00
------------
old cabinetry, necessary ceiling tile and grid, old VWC in restrooms
Cabinetry- new kitchen and conference room cabinets as shown, new $ 5,540.00
----------
laminate countertops in restrooms
Doors, Frames, Hardware- install (2) reused doors in locations shown $ 100.00
-----------------------
Drywall- build new walls as shown,'repair existing walls, repair old $ 1,988.00
-------
door and window locations
Acoustical Ceilings- replace grid on right 1/3 of building, replace tile as $ 3,2O0.00
---------------------
needed
Carpet and Base- $14.00/sy direct glue down carpet in all areas except $ 15,750.00
----------------
restrooms, breakroom and vault
Paint and Wallcovering- paint existing walls with (1) coat flat latex, paint $ 5,770.00
-----------------------
new walls with (2) coats flat latex, install new vinyl wallcovering in
restrooms, touch up existing doors
Plumbing- provide new stainless steel sink in conference room, reinstall $ 700.00
--------
existing sink in breakroom and bathrooms
HVAC- allowance to relocate existing grills and thermostats $ 1,200.00
------
Electrical- rewire lights after new ceiling installation, add (10) duplex $ 3,900.0O
-----------
receptacles, relocate fire alarm, install (5) power poles, add (10) data/com
boxes, sensor for small conference room lighting
Final Cleaning- prior to tenant occupancy $ 975.00
-------------- ------------
Sub-total $ 59,507.00
Taxes $ 2,041.00
Insurance, Permit $ 285.00
OH&P $ 7,420.00
------------
TOTAL $ 69,253.00
Please note the following exclusions:
brick cleaning, interior blinds, fire sprinklers, appliances, carpet
squares in small conference room, tele/comm installation, electrical
service upgrades, any item not specifically listed above
LEASEHOLD IMPROVEMENT AGREEMENT
This Leasehold Improvement Agreement ("Improvement Agreement") is dated for
reference purposes only as May 13, 1998, and is made by and between Secured
Properties Investors II, L.P. ("Landlord") and CitySearch, Inc, ("Tenant") as
part of that certain Lease of even date herewith between them, affecting that
real property commonly known as 0 Xxxxxxxx Xxxxx, Xxxxxx Xxxxxx, Xxxxx Xxxxxxxx
(the "Lease"). The following provisions are hereby added to the Lease and in the
event of conflict between this Improvement Agreement and the Lease, this
Improvement Agreement shall prevail:
SECTION 1
DEFINITIONS
1.1 Definitions. All capitalized terms in this Improvement Agreement
-----------
shall have the meaning defined in the Lease. Wherever used in this Improvement
Agreement, the following terms are defined as follows:
1.1.1 "Allowance" is the maximum amount Landlord is required to pay
toward Construction Cost of the Improvements, which amount is $66,980.00.
1.1.2 "Architect(s)" collectively means The Xxxxx Xxxxxxx Associates,
P.A., and all other architects, structural engineers, mechanical engineers and
the other design professionals as are needed to design the Improvements, each of
whom shall be duly licensed by the State of North Carolina and in good
professional standing.
1.1.3 "Applicable Laws and Restrictions" means all laws (including
without limitation the Americans With Disabilities Act), building codes,
ordinances, regulations, title covenants, conditions, and restrictions, and
casualty underwriters requirements applicable to the premises and the
improvements.
1.1.4 The "Building" is the multi-tenant building in which the Demised
Premises are situated.
1.1.5 "Contractor(s)" means Prime Building Co. and all other general
contractors, design-build contractors, subcontractors, and material suppliers
who provide labor and materials for construction of the Improvements. To the
extent required by Applicable Laws and Restrictions, each Contractor shall be
duly licensed by the State of North Carolina and in good professional standing.
1.1.6 "Construction Cost" means all of the following:
a. fees paid by Landlord to Architect(s) for services required
by this Improvement Agreement;
b. fees paid by Landlord for engineering fees for construction
of the Improvements;
c. fees of governmental and quasi-governmental agencies for
Permits;
d. payments to Contractor(s) for labor, materials, and
equipment.
1
1.1.7 "Construction Documents" are the Design Plans and the Final
Plans
1.1.8 "Construction Schedule" is the schedule for commencement,
prosecution and Substantial Completion of the Improvements.
1.1.9 "Improvements" are the alterations, modifications and
improvement described on the Final Plans which will be constructed pursuant to
this Improvement Agreement.
1.1.10 "Landlord's Work" is the construction of all of the
Improvements
1.1.11 "Landlord's Representative" is Xxx Xxxxxx or such other person
as the Landlord shall designate in writing to Tenant as its authorized
representative for the purposes of administering this improvement Agreement.
1.1.12 "Permits" are those permits approvals and consents of
governmental authorities and third parties having jurisdiction over the work
which are required for commencement and completion of the Improvements.
1.1.13 "Substantial Completion" or "Substantially Completed" is
defined in Section 5.1. The "Substantial Completion Date" is the date the
Improvements are Substantially Completed.
1.1.14 "Scheduled Completion Date" is the scheduled date for
Substantial Completion of the Improvements.
1.1.15 "Tenant's Representative" is Xxxx Xxxxxxxxx or such other
person as the Tenant shall designate in writing to Landlord as its authorized
representative for the purposes of administering this Improvement Agreement.
1.1.16 "Tenant's Work" is limited to the installation of the Tenant's
trade fixtures, furnishings, and equipment in the premises alter completion of
the Landlord's Work.
SECTION 2
DESIGNATION OF REPRESENTATIVE
2.1 Designation of Representative. Landlord and Tenant hereby respectively
-----------------------------
appoint the Landlord's Representative and the Tenant's Representative as its
sole representative for the purposes of this Improvement Agreement. Until
replaced by written notice, the Landlord's Representative and the Tenant's
Representative will have the full authority and responsibility to act on behalf
of Landlord and Tenant respectively, as required in this Improvement Agreement.
SECTION 3
CONTRACT DOCUMENTS & PERMITS
3.1 Retention of Architects and Delivery of Final Plans. Tenant shall
---------------------------------------------------
direct and Landlord shall pay for the services of the Architect(s) to prepare
the finished Design Plans and
2
specifications for the Improvements (the "Final Plans"). The Final Plans shall
be based upon and consistent with the Design Plans and specifications attached
to the Lease as Exhibit C and subject to approval by Landlord, which approval
shall not be unreasonably withheld, denied or delayed.
3.2 Preparation and Approval of Cost Estimate and Construction Schedule.
-------------------------------------------------------------------
Immediately following approval of the Final Plans, Landlord shall cause the
Architect to prepare a preliminary Cost Estimate and Construction Schedule.
Landlord and Tenant shall review the Cost Estimate and the Construction Schedule
and promptly deliver to the other party and to the Architect(s) the party's
written approval or disapproval thereof. If the Cost Estimate or Construction
Schedule is disapproved in any respect, the parties shall confer and negotiate
in good faith to reach written agreement. Landlord's and Tenant's approval of
the Cost Estimate or the Construction Schedule shall not be unreasonably
withheld, denied or delayed, provided, however, that (I) Tenant may deny
approval in its sole discretion of any Cost Estimate which exceeds $66,980.00,
and (2) Landlord or Tenant may deny approval of any Construction Schedule which
calls for a Substantial Completion Date of more than 180 days after the date
Tenant first delivered the Final Plans to Landlord. Any disapproval by Landlord
or Tenant shall be accompanied by a written statement of the disapproved item,
the reasons for disapproval and the specific changes required to make the item
acceptable. If a party's written notice of disapproval is not delivered within
10 days from delivery of the Cost Estimate or the Construction Schedule,
approval shall be deemed given. If the Cost Estimate or Construction Schedule is
disapproved as provided herein, the parties shall confer and negotiate in good
faith to reach written agreement.
3.3 Application for Approvals. Landlord shall submit the Final Plans to
-------------------------
all appropriate governmental agencies and third parties for issuance of the
Permits required for the construction of the Improvements and occupancy by
Tenant of the Improvements for its intended use. Landlord shall use all
reasonable efforts to obtain the Permits on or before the date specified for
same in the Contract Schedule, Landlord shall not be responsible for any delay
or denial of a Permit which is beyond its reasonable control.
3.4 Changes to Final Plans. The Final Plans may be modified only by a
----------------------
written "Change Order" executed by Landlord and Tenant, which clearly describes
(i) the change, (ii) the party required to perform the change, (iii) the party
required to pay for the change, and (iv) any revision of the Construction
Schedule occasioned by the change. Neither Landlord nor Tenant shall
unreasonably deny, withhold or delay its approval of a change, whether requested
by a party or required by an Applicable Law or Restriction.
3.5 Delay of Substantial Completion Date. Upon any delay in the
------------------------------------
Substantial Completion Date beyond 180 days after the date when the Final Plans,
Cost Estimate and Construction Schedule are all approved, which is due to
circumstances beyond the reasonable control of Landlord, either Landlord or
Tenant may terminate this Lease.
3
SECTION 4
PERFORMANCE OF THE WORK
4.1 Selection of Contractor(s) and Suppliers. Construction of the
----------------------------------------
Landlord's Work shall be performed under the direction of Landlord and by
Contractor(s) selected by Landlord.
4.2 Commencement and Completion of Improvements. When all Permits have
-------------------------------------------
been obtained, Landlord shall cause its Contractor(s) to commence and to
thereafter diligently prosecute the construction of the Landlord's Work so that
the Landlord's Work will be Substantially Completed on or before the Scheduled
Completion Date.
4,3 Standards for Performance of Work. Landlord shall cause the
----------------------------------
Landlord's Work to be constructed by well-trained, adequately supervised
workers, in a good and workmanlike manner, free from design, material and
workmanship defects in accordance with all Construction Documents. Tenant shall
comply, and shall cause its Contractor to comply with the reasonable rules and
regulations promulgated by Landlord for the performance and scheduling of the
Tenant's Work. The parties shall cooperated in good faith to schedule,
coordinate, and perform Landlord's Work and Tenant's Work.
SECTION 5
COMPLETION OF THE WORK
5.1 Inspection, Substantial Completion & Punchlist. Tenant's
-----------------------------------------------
Representative and Architect shall have the right to enter the Demised Premises
at all reasonable times for the purpose of inspecting the progress of the work.
Landlord's Work shall be deemed "Substantially Completed" or in "Substantial
Completion" when (i) construction of the Improvements has been completed and all
incomplete or defective Landlord's Work which interferes with Tenant's use of
the Demised Premises has been remedied; (ii) the Architect has certified that
the Landlord's Work has been constructed in accordance with the Final Plans,
(iii) all necessary governmental approvals for occupancy of the Demised Premises
and the Improvements have been obtained, including a Certificate of Occupancy;
and (iv) all utilities are hooked up and available for use. Landlord shall
notify Tenant when the Landlord's Work is Substantially Completed and the
Tenant's Representative, Landlord's Representative, and the Architect(s) shall
immediately inspect the Landlord's Work and prepare a written list of any
defective an incomplete work (the "Punchlist"). Tenant may augment the Punchlist
at any time on or before 20 days following the Substantial Completion Date.
Landlord shall promptly remedy all Punchlist items. Notwithstanding the
foregoing, (1) Tenant's failure to specify any defect on the Punchlist shall not
waive any obligation of the Landlord to complete the Improvements in accordance
with this Improvement Agreement, and (2) Landlord shall not be obligated to pay
more than the Allowance.
SECTION 6
PAYMENT OF CONSTRUCTION COST
6.1 Duty to Pay Construction Cost. Landlord shall pay the Construction
------------------------------
Cost of the Improvements, up to an amount equal to the Allowance. Tenant shall
pay any remainder of such
4
Construction Cost and Tenant shall pay the entire cost of Tenant's Work, without
reimbursement by Landlord.
6.2 Notice of Non-Responsibility. Tenant shall provide Landlord with at
----------------------------
least 10 days prior written notice for commencement of the Tenant's Work, in
order to permit the Landlord to post and record such Notices of non-
Responsibility and other instruments as may be necessary to protect the Landlord
and its property from claims by Contractor's for unpaid costs and other
liabilities associated with the Tenant's Work.
SECTION 7
RISK OF LOSS
7.1 Casualty. If the Building is damaged or destroyed prior to the
--------
Completion Date, Landlord and Tenant shall have the right to terminate this
Lease, if, in the reasonable opinion of the Architect(s), the Building cannot be
restored and the Improvements Substantially Completed within 180 days after
Tenant first delivers the Final Plans to Landlord. If the Building is damaged or
destroyed and the Lease is not terminated pursuant to this Section, Landlord
shall promptly and diligently complete repair of the Building and construction
of the Improvements.
IN WITNESS WHEREOF, the Landlord and Tenant have executed this Improvement
Agreement, intending to be bound thereby as of the date first above written.
Landlord Tenant
Secured Properties Investors II, L.P. CitySearch, Inc.
/s/ Xxxxxxx XxXxxxxxx
By___________________________________ By---------------------------
Xxxxxxx XxXxxxxxx
Name:________________________________ Name:------------------------
Chief Legal Officer
Title:_______________________________ Title:-----------------------
5
