EXHIBIT 10.5
ASSIGNMENT OF LEASE
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and
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CONSENT TO ASSIGNMENT
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THIS ASSIGNMENT OF LEASE is made this 16th day of December, 1997, by and
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between VALLEY OF CALIFORNIA, INC., a California coporation dba, COLDWELL BANKER
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RESIDENTIAL REAL ESTATE SERVICES OF NORTHERN CALIFORNIA, a California
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corporation, ("Assignor or "Tenant") and INFO SPACE, INC., a California
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corporation, ("Assignee"), who agree as follows:
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WHEREAS, ROSJAN LIMITED PARTNERSHIP, a California limited partnership,
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as landlord ("Landlord") and Assignor, as tenant by assignment, entered into a
written Lease dated May 26, 1995 ("Lease", attached as Exhibit A hereto), in
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which Landlord leased to Assignor, and Assignor leased from Landlord,
approximately 7,37O square feet, on the ground floor of that certain building
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with a street address of 000 Xxxxxx Xxxxxx, Xxx Xxxxx, XX 00000 (the
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expiration date of the current term of which Lease is June 30, 2000);
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WHEREAS, Assignor desires to assign all of its right, title and interest in
the leasehold premises to Assignee, and Assignee desires to accept the
assignment thereof, subject to Landlord consenting to this assignment,
NOW, THEREFORE, the parties agree as follows:
1. Upon condition that Landlord consents to this assignment, this
assignment shall be effective as of February 1, 1998 (the "Effective Date").
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2. Assignor assigns and transfers to Assignee all of its right, title and
interest in the Lease, including any security deposit, and Assignee accepts the
assignment and assumes and agrees to perform, from the Effective Date, as a
direct obligation to Landlord, all of the provisions of the Lease to be
performed by Assignor.
3. Assignor hereby indemnities, and agrees to defend and save Assignee
harmless from and against any loss, damage, cost or expense which Assignee may
sustain or incur in connection with the Lease or the demised premises where the
cause of action or basis of the claim arose prior to the Effective Date.
4. Assignee hereby indemnifies, and agrees to defend and save Assignor
harmless from and against any loss, damage, cost or expense which Assignor may
sustain or incur in connection with the Lease or the demised premises where the
cause of action or basis of the claim arose subsequent to the Effective Date.
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5. Subject to Landlord's consent, to the degree such consent is required
under the Lease, Assignee may install exterior building signs in conformance
with local sign ordinances. Assignee reserves the right to remove said signs at
the end of the tease term.
6. All notices required or desired to be given hereunder shall be in
writing and shall be delivered in person or by commercial overnight delivery
service or by certified mail, postage prepaid, return receipt requested, and
addressed to the pa4rties at the respective addresses set forth below, unless by
such notice a different address shall have been designated:
To Landlord: Rosian Limited Partnership
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c/o Xxxxxxx-Xxxxxx, Inc.
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000 Xxxxxx Xxxxxx, #000
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Xxx Xxxxx, XX 00000
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Attn: Xxxxx Xxxxxxx
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To Assignor: Coldwell Banker Residential Brokerage
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27271 Las Ramblas
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Xxxxxxx Xxxxx, XX 00000
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Attn: Coporate Real Estate Dept.
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To Assignee: Info Space, Inc.
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000 Xxxxxx Xxxxxx #000
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Xxx Xxxxx, XX 00000
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Attn: Xxxx Xxxxxxxx
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All notices property sent as aforesaid shall be deemed given (a) if
personally served upon such service, (b) if sent by commercial overnight
delivery service, upon the next business day following such sending, or (c) if
mailed, forty-eight (48) hours following the first attempt of the postal service
to deliver same.
7. Except for that certain Estoppel Certificate between Landlord and
Assignor/Tenant, executed contemporaneously herewith, this Assignment of Lease
and Consent to Assignment, and the attached Lease referred to herein, constitute
the entire agreement between the parties pertaining to the subject matter hereof
and supersede all prior agreements and understandings of the parties in
connection herewith.
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8. Assignor acknowledges that, notwithstanding this assignment or any
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further assignments, Assignor continues to be bound by the Lease and liable for
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the performance of each and every term and provision of the Lease to be kept,
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performed, and fulfilled by the Tenant thereunder.
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EXECUTED, the day and date above first written,
VALLEY OF CALIFORNIA, INC.
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A California Corporation dba
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COLDWELL BANKER RESIDENTIAL
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REAL ESTATE SERVICES
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OF NORTHERN CALIFORNIA
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By: /s/ Xxxxxxx X. Faendin
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Xxxxxxx X. Faendin
Vice President
Director of Corporate Real Estate
"Assignor"
INFO SPACE, INC.
a California Corporation
By: /s/ Xxxx Xxxxxxxx
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Xxxx Xxxxxxxx
Corporate Financial Officer
"Assignee"
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CONSENT OF ASSIGNMENT OF LEASE
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As Landlord under the Lease, Rosjan Limited Partnership hereby consents to
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the foregoing assignment without waiver of the restrictions in the Lease
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concerning further assignment and without waiver of any of rights or remedies
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under the Lease as to Assignor or Assignee, and this consent shall not in any
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respect release, relieve, or discharge Assignor from performance of any of
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Assignor's responsibilities, liabilities, obligations, or covenants under Lease.
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ROSJAN LIMITED PARTNERSHIP
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A California Limited Partnership
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By: Xxxxxxx-Xxxxxx Management Group,
Its Managing Agent
By: ??????????????????
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Title: DIR. OF PROP. MGT.
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"Landlord"
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STANDARD INDUSTRIAL LEASE - NET
1. Parties. This Lease, dated, for reference purposes only May 26, 1995, is
made by and between Rosjan Limited Partnership (herein called "Lessor") and
Norcal Realty Partners, L.P., by the General Partner, RMNorcal Realty, a
California Corporation. d/b/a/ The Prudential California Realty, or as successor
to whom Tenant assigns in compliance with (8) of Lease Addendum attached.
(herein called "Lessee").
2. Premises. Lessor hereby leases to Lessee and Lessee leases from Lessor for
the term, at the rental, and upon all of the conditions set herein, that certain
real property situated in the County of San Mateo State of California, commonly
known as 000 Xxxxxx Xxxxxx, Xxx Xxxxx, XX 00000 and described as approximately
7370 square feet of ground floor space, a portion of a project ("Building") own
by Landlord.
Said real property including the land and all improvements therein, is herein
called "the Premises".
3. Term
3.1 Term. The term of this Lease shall be for 5-year (five years)
commencing on 1st July, 1995 and ending on 30th June 2000. unless sooner
terminated pursuant to any provision hereof.
3.2 Delay in Possession. Notwithstanding said commencement date, if
for any reason Lessor cannot deliver possession of the Premises to Lessee on
said date, Lessor shall not be subject to any liability therefor, nor shall such
failure affect the validity of this Lease or the obligations of Lessee hereunder
or extend the term hereof but in such case Lessee shall not be obligated to pay
rent until possession of the Premises is tendered to Lessee; provided, however,
that if Lessor shall not have delivered possession of the Premises within sixty
(60) days from said commencement date, Lessee may, at Lessee's option, by notice
in writing to Lessor within ten (10) days thereafter, cancel this Lease, in
which event the parties shall be discharged from all obligations hereunder;
provided, further, however, that if such written notice of Lessee is not
received by Lessor within said ten (10) day period, Lessee's right to cancel
this Lease hereunder shall terminate and be of no further force or effect.
4. Rent. Lessee shall pay to Lessor as rent for the Premises, monthly payments
of $12,529.00, in advance, on the 1st of each month of the term hereof. Lessee
shall pay Lessor upon the execution hereof $12,529.00 $_______) rent for first
month. Rent Adjustment for Year 2 to 5 see (6) of Lease Addendum attached.
Rent for any period during the term hereof which is for less than one month
shall be a pro rata portion of the monthly installment. Rent shall be payable in
lawful money of the United States to Lessor at the address stated herein or to
such other person or at such other places as Lessor may designate in writing.
5. Security Deposit. Lessee shall deposit with Lessor upon execution hereof
$ (9) of Lease Addendum attached as security for Lessee's faithful performance
of Lessee's obligations hereunder. If Lessee fails to pay rent or other charges
due hereunder, or otherwise defaults with respect to any provision of this
Lease, Lessor may use, apply or retain all or any portion of said deposit for
the payment of any rent or other charge in default for any payment of any other
sum to which Lessor may become obligated by reason of Lessee's default, or to
compensate Lessor for any loss or damages which Lessor may suffer thereby. If
Lessor so uses or applies all or any portion of said deposit, Lessee shall
within ten (10) days after written demand therefor deposit cash with Lessor in
an amount sufficient to restore said deposit to the full amount hereinabove
stated and Lessee's failure to do so shall be a material breach of this Lease.
Lessor shall not be required to keep said deposit separate from its general
account. If Lessee performs all of Lessee's obligations hereunder, said deposit,
or so much thereof as has not theretofore been applied by Lessor, shall be
returned, without payment of interest or other increment for its use, to Lessee
(or, at Lessor's option, to the last assignee, if any of Lessee's interest
hereunder) at the expiration of the term hereof, and after Lessee has vacated
the Premises. No trust relationship is created hereunder between Lessor and
Lessee with respect to said Security Deposit.
6. Use.
6.1 Use. The Premises shall be used and occupied only for (8) of Lease
Addendum attached, or any other use which is reasonably comparable and for no
other purpose.
6.2 Compliance with Law.
(a) Lessor warrants to Lessee that the Premises, in its existing
state, but without regard to the use for which Lessee will use the Premises
does not violate any applicable building code regulation or ordinance at the
time that this Lease is executed. In the event that it is determined that this
warranty has been violated, then it shall be the obligation of the Lessor, after
written notice from Lessee to promptly, at Lessor's sole cost and expense, to
rectify any such violation. In the event that Lessee does not give to Lessor
written notice of the violation of this warranty within one (1) year from the
commencement of the term of this Lease, it shall be conclusively deemed that
such violation did not exist and the correction of the same shall be the
obligation of the Lessee.
(b) Except as provided in Paragraph 6.2(a), Lessee shall, at
Lessee's expense, comply promptly with all applicable statutes, ordinances,
rules, regulations, orders, covenants and restrictions of record, and
requirements in effect during the term or any part of the term hereof,
regulating the use by Lessee of the Premises. Lessee shall not use nor permit
the use of the Premises in any manner that will tend to create waste or a
nuisance or, if there shall be more than one tenant in the building containing
the Premises, shall tend to disturb other tenants.
6.3 Condition of Premises
(a) Lessor shall deliver the Premises to Lessee clean and free of
debris on Lease commencement date (unless Lessee is already in possession) and
Lessor further warrants to Lessee that the plumbing, lighting, air conditioning,
heating, and loading doors in the Premises shall be in good operating condition
on the Lease commencement date. In the event that it is determined that this
warranty has been violated, then it shall be the obligation of Lessor, after
receipt of written notice from Lessee setting forth with specifically the nature
of the violation, to promptly at Lessor's sole cost, rectify such violation.
Lessee's failure to give such notice to Lessor within thirty (30) days after the
Lease commencement shall cause the conclusive presumption that Lessor has
complied with all of Lessor's obligations hereunder. The warranty contained in
this Paragraph 6.3(a) shall be of no force or effect if prior to the date of
this Lease, Lessee was the owner or occupant of the Premises.
7. Maintenance, Repairs and Alterations
7.1 Lessee's Obligations. Lessee shall keep in good order, condition
and repair the Premises and every part thereof, structural and nonstructural,
(whether or not such portion of the Premises requiring repair, or the means of
repairing the same are reasonably or readily accessible to Lessee, and whether
or not the need for such repairs occurs as a result of Lessee's use, any prior
use, the elements or the age of such portion of the Premises) including, without
limiting the generality of the foregoing, all plumbing, heating, air
conditioning, ventilating, electrical lighting, facilities and equipment within
the Premises, fixtures, wall (interior and exterior) foundations, ceilings,
roofs, (interior and exterior) floors, windows, doors, plate glass and skylights
located within the Premises, and all landscaping, driveways, parking lots,
fences and signs located on the Premises and sidewalks and parkways adjacent to
the Premises.
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7.2 Surrender. On the last day of the term hereof, or on any soon
termination, Lessee shall surrender the Premises to Lessor in the same condition
as when received, ordinary wear and tear excepted, clean and free of debris.
Lessee shall repair any damage to the Premises occasioned by the installation or
removal of Lessee's trade fixtures, furnishings and equipment pursuant to
Paragraph 7.5(d) which repair shall include the patching and filling of holes
and repair of structural damage.
7.3 Lessor's Rights. If Lessee fails to perform Lessee's obligations
under this Paragraph 7, Lessor may at its option (but shall not be required to)
enter upon the Premises after ten (10) days prior written notice to Lessee and
put the same in good order, condition and repair and the cost thereof together
with interest thereon at the rate of ten percent (10%) per annum shall become
due and payable as additional rental to Lessor together with Lessee's next
rental installment.
7.4 Lessor's Obligations. Except for the obligations of Lessor under
Paragraph 6.2(a) (relating to Lessor's warranty), Paragraph 9 (relating to
destruction of the Premises) and Under Paragraph 14 (relating to condemnation of
the Premises) it is intended by the parties hereto that Lessor have no
obligation, in any manner whatsoever, to repair and maintain the Premises nor
the building located thereon nor the equipment therein, whether structural or
nonstructural, all of which obligations are intended to be that of the Lessee
under Paragraph 7.1 hereof. Lessee expressly waives the benefit of any statute
now or hereinafter in effect which would otherwise afford Lessee the right to
make repairs at Lessor's expense or to terminate this Lease because of Lessor's
failure to keep the Premises in good order, condition and repair.
7.5 Alterations and Additions
(a) Lessee shall not, without Lessor's prior written consent make any
alterations, improvements, additions, or Utility Installations in, on or about
the Premises, except for nonstructural alterations not exceeding $1,000 in cost.
As used in this Paragraph 7.5 the term "Utility Installation" shall mean bus
ducting, power panels, wiring, fluorescent fixtures, space heaters, conduits,
air conditioning equipment and plumbing. Lessor may require Lessee to provide
Lessor, at Lessee's sole cost and expense, a lien and completion bond in an
amount equal to one and one-half times the estimated cost of such improvements,
to insure Lessor against any liability for mechanic's and materialmen's liens
and to insure completion of the work. Should Lessee make any alterations,
improvements, additions or Utility Installations without the prior approval of
Lessor, Lessee may require that Lessee remove any or all of the same.
(b) Any alterations, improvements, additions or Utility Installations
in, or about the Premises, that Lessee shall desire to make and which requires
the consent of the Lessor shall be presented to Lessor in written form, with
proposed detailed plans. If Lessor shall give its consent, the consent shall be
deemed conditioned upon Lessee acquiring a permit to do so from appropriate
governmental agencies, the furnishing of a copy thereof to the commencement of
the work and the compliance by Lessee of all conditions of said permit in a
prompt and expeditious manner.
(c) Lessee shall pay, when due, all claims for labor materials
furnished or alleged to have been furnished to or for Lessee at or for use in
the Premises, which claims are or may be secured by any mechanics' or
materialmen's lien against the Premises or any interest therein. Lessee shall
give Lessor not less than ten (10) days' notice prior to the commencement of any
work in the Premises, and Lessor shall have the right to post notices of non-
responsibility in or on the Premises as provided by law. If Lessee shall, in
good faith, contest the validity of any such lien, claim or demand, then Lessee
shall, at its sole expense defend itself and Lessor against the same and shall
pay and satisfy any such adverse judgment that may be rendered thereon before
the enforcement thereof against the Lessor or the Premises, upon the condition
that if Lessor shall require, Lessee shall furnish a surety bond satisfactory to
Lessor in an amount equal to such contested lien claim or demand indemnifying
Lessor against liability for the same and holding the Premises free from the
effect of such lien or claim. In addition, Lessor may require Lessee to pay
Lessor's attorneys fees and costs in participating in such action if Lessor
shall decide it is to its best interest to do so.
(d) All alterations, improvements, additions and Utility
Installations (whether or not such Utility Installations constitute trade
fixtures of Lessee), which may be made on the Premises, shall become the
property of Lessor and remain upon and be surrendered with the Premises at the
expiration of the term. Notwithstanding the provisions of this Paragraph
7.5(d). Lessee's machinery and equipment, other than that which is affixed to
the Premises so that it cannot be removed without material damage to the
Premises, shall remain the property of Lessee and may be removed by Lessee
subject to the provisions of Paragraph 7.2.
8. Insurance Indemnity
8.1 Insuring Party. As used in Paragraph 8, the term "insuring party"
shall mean the party who has the obligation to obtain the Property Insurance
required hereunder. The insuring party shall be designated in Paragraph 16.26
hereof. Whether the insuring party is the Lessor or the Lessee, Lessee shall as
additional rent for the Premises pay the cost of all insurance required
hereunder. If Lessor is the insuring party, Lessee shall within ten (10) days
following demand by Lessor reimburse Lessor for the cost of the insurance so
obtained.
8.2 Liability Insurance. Lessee shall, at Lessee's expense obtain and
keep in force during the term of this Lease a policy of Combined Single Limit,
Bodily Injury and Property Damage insurance insuring Lessor and Lessee against
any liability arising out of the ownership, use, occupancy, or maintenance of
the Premises and all areas appurtenant thereto. Such insurance shall be combined
single limit policy in an amount not less than $1M million per occurrence. The
policy shall contain cross liability endorsements and shall insure performance
by Lessee of the indemnity provisions of this Paragraph 8. The limits of said
insurance shall not, however, limit the liability of Lessee hereunder. In the
event that the Premises constitute a part of a larger property said insurance
shall have a Lessor's Protective Liability endorsement attached thereto. If
Lessee shall fail to procure and maintain said insurance Lessor may but shall
not be required to procure and maintain the same, but at the expense of Lessee.
Not more frequently than each three (3) years if in the reasonable opinion of
Lessor the amount of liability insurance required hereunder is not adequate.
Lessee shall increase said insurance coverage as required by Lessor. Provided,
however, that in no event shall the amount of the liability insurance increase
be more than fifty percent (50%) greater than the amount thereof during the
preceding five (5) years of the term of this Lease. However, the failure of
Lessor to require any additional insurance coverage shall not be deemed to
????? Lessee from any obligations under this Lease. Said policy shall name
Landlord as an additional insured.
8.3 Property Insurance
(a) The insuring party shall obtain and keep in force during the term
of this Lease a policy or policies of insurance covering loss or damage to the
Premises, in the amount of the full replacement value thereof, as the same may
exist from time to time, but in no event less than the total amount of
promissory notes secured by liens on the Premises against all perils included
within the classification of fire, extended coverage, vandalism, malicious
mischief, special extended perils ("all risk") and sprinkler leakage. said
insurance shall provide for payment of loss thereunder to Lessor or to the
holders of mortgages or deeds of trust on the Premises. The insuring party
shall, in addition, obtain and keep in force during the term of this Lease a
policy of rental income insurance covering a period of six (6) months, with loss
payable to Lessor, which insurance shall also cover all real estate taxes and
insurance costs for said period. If the insuring party shall fail to procure
and maintain said insurance the other party may, but shall not be required to,
procure and maintain the same, but at the expense of Lessee. If such insurance
coverage has a deductible clause, Lessee shall be liable for the deductible
amount.
(b) If the Premises are part of a larger building, or if the Premises are
part of a group of building owned by Lessor which are adjacent to the Premises,
then Lessee shall pay for any increase any property insurance of such other
building or buildings if said increase is caused by Lessee's acts, omissions,
use or occupancy of the Premises.
(c) If the Lessor is the insuring party the Lessor will not insure
Lessee's fixtures, equipment or tenant improvements unless the tenant
improvements have become a part of the Premises under Paragraph 7, hereof. But
if Lessee is the insuring party the Lessee shall insure its fixtures, equipment
and tenant improvements.
(d) Not more frequently than each three (3) years, if in the opinion of
Lessor, the amount of property insurance required hereunder is not adequate, the
insuring party shall increase said insurance coverage as required by Lessor.
However, such increase may be more frequent than each three (3) years if
required by the insurance carrier in order to maintain insurance for the full
replacement value of the Premises.
8.4 Insurance Policies. Insurance required hereunder shall be in
companies holding a "General Policyholders Rating" of a B plus, or better as set
forth in the most current issue of "Best's Insurance Guide". The insuring party
shall deliver to the other party copies of policies of such insurance or
certificates evidencing the existence and amounts of such policies, furnish
Lessor with renewals or "binders" thereof, or Lessor may order such insurance
and charge the cost thereof to Lessee, which amount shall be payable by Lessee
upon demand. Lessee shall not do or permit to be done anything which shall
invalidate the insurance policies referred to in Paragraph 8.3. If Lessee does
or permits to be done anything which shall increase the cost of the insurance
policies referred to in Paragraph 8.3, then Lessee shall forthwith upon Lessor's
demand reimburse Lessor for any additional premiums attributable to any act or
omission or operation of Lessee causing such increase in the cost of insurance.
If Lessor is the insuring party and if the insurance policies maintained
hereunder cover other improvements in addition to the Premises. Lessor shall
deliver to Lessee a written statement setting forth the amount of any such
insurance cost increase and showing in reasonable detail the manner in which it
has been computed.
8.5 Waiver of Subrogation. Lessee and Lessor each hereby release and
relieve the other, or against the officers, employees, agents and
representatives of the other for loss of or damage to such waiving party or its
property or the property of others under its control to the extent that such
loss or damage is insured against under any insurance policy in force at the
time of such loss or damages. The insuring party shall, upon obtaining the
policies of insurance required hereunder, give notice to the insurance carrier
or carriers that the foregoing mutual waiver of subrogation is contained in this
Lease.
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8.6 Indemnity. Lessee shall defend and hold harmless Lessor from and
against any and all claims arising from Lessee's use of the Premises or from the
conduct of Lessee's business or from any activity, work or things done,
permitted or suffered by Lessee or about the Premises or elsewhere and shall
further indemnify and hold harmless Lessor from and against any and all claims
arising from any breach or default in the performance of any obligation on
Lessee's part to be performed under the terms of this Lease, or arising from any
negligence by the Lessee, or any of Lessee's agents, contractors, or employees,
and from and against all costs, attorneys fees, expenses and liabilities
incurred in the defense of any such claim or any action or proceeding brought
thereon; and in case any action or proceeding be brought thereon and in case any
action or proceeding be brought against Lessor by reason of any such claim,
Lessee upon notice from Lessor shall defend the Lessor at Lessee's expense by
counsel satisfactory to Lessor. Lessee, as a material part of the consideration
to Lessor, hereby assumes all risk and damage to property or injury to persons,
in, upon or about the Premises arising from any cause and Lessee hereby waives
all claims in respect thereof against Lessor.
8.7 Exemption of Lessor from Liability. Lessee hereby agrees that Lessor
shall not be liable for injury to Lessee's business or any loss of income
therefrom or for damage to the goods, wares, merchandise or other property of
Lessee. Lessee's employees, invitees, customers or any other person in or about
the Premises, nor shall Lessor be liable for injury to the person of Lessee,
Lessee's employees, agents, contractors, whether such damage or injury is caused
by or results from fire, steam, electricity, gas, water or rain, or from the
breakage, leakage, obstruction or other defects of pipes, sprinklers, wires,
appliances, plumbing, air conditioning or lighting fixtures, or from any other
cause, whether the sold damage or injury results from conditions arising upon
the Premises or upon other portions of the building of which the Premises are
a part, or from other sources or places and regardless of whether the cause of
such damage or injury or the means of repairing the same are inaccessible to
Lessee. Lessor shall not be liable for any damages arising from any act or
neglect of any other tenant, if any, of the building in which the Premises are
located.
9. Damage, Destruction, Obligation to Rebuild, Rent Abatement.
9.1. Partial Damage - Insured. Subject to the provisions of Paragraphs
9.3. and 9.4, if the Premises are damaged and such damage was caused by a
casualty covered under an insurance policy required to be maintained pursuant to
Paragraph 8.3, Lessor shall at Lessor's expense repair such damage but not
Lessee's fixtures, equipment or tenant improvements unless the same have become
a part of the Premises pursuant to Paragraph 7.5 hereof as soon as possible and
this Lease shall continue in full force and effect. Notwithstanding the above,
if the Lessee is the insuring party, and if the insurance proceeds received by
Lessor are not sufficient to effect such repair, Lessor shall give notice to
Lessee of the amount required in addition to the insurance proceeds to effect
such repair. Lessee shall contribute the required amount to Lessor within ten
(10) days after Lessee has received notice from Lessor of the shortage in the
insurance. When Lessee shall contribute such amount to Lessor, Lessor shall make
such repairs as soon as reasonably possible and this Lease shall continue in
full force and effect. Lessee shall in no event have any right to reimbursement
for any such amount so contributed.
9.2 Partial Damage - Uninsured. Subject to the provisions of Paragraphs
9.3 and 9.4, if at any time during the term hereof the Premises are damaged,
except by a negligent or willful act of Lessee, (in which event Lessee shall
make the repairs at its expense) and such damage was caused by a casualty not
covered under an insurance policy required to be maintained pursuant to
Paragraph 8.3, Lessor may at Lessor's option either (i) repair such damage as
soon as reasonably possible at Lessor's expense, in which event this Lease shall
continue in full force and effect or (ii) give written notice to Lessee within
thirty (30) days after the date of the occurrence of such damage of Lessor's
intention to cancel and terminate this Lease. Lessee shall have the right within
ten (10) days after the receipt of such notice to give written notice to Lessor
of Lessee's intention to repair such damage at Lessee's expense, without
reimbursement from Lessor, in which event this Lease shall continue in full
force and effect and Lessee shall proceed to make such repairs as soon as
reasonably possible. If Lessee does not give such notice within such ten (10)
day period, this Lease shall be cancelled and terminated as of the date of the
occurrence of such damage.
9.3 Total Destruction. If at any time during the term hereof the Premises
are totally destroyed from any cause whether or not covered by the insurance
required to be maintained pursuant to Paragraph 8.3 (including any total
destruction required by any authorized public authority) this Lease shall
automatically terminate as of the date of such total destruction/such damage.
9.4 Damage Near End of Term. If the Premises are partially destroyed or
damaged during the last six months of the term of this Lease, Lessor may at
Lessor's option cancel and terminate this Lease as of the date of occurrence of
such damage by giving written notice to Lessee of Lessor's election to do so
within thirty (30) days after the date of occurrence of such damage.
9.5 Abatement of Rent; Lessee's Remedies.
(a) If the Premises are partially destroyed or damaged and Lessor or
Lessee repairs or restores them pursuant to the provisions of this Paragraph 9,
the rent payable hereunder for the period during which such damage, repair or
restoration continues shall be abated in proportion to the degree to which
Lessee's use of the Premises is impaired; provided, however, that the aggregate
amount of abatement hereunder shall not exceed the total of rent payable under
Paragraph 4 for a period of six months. Except for abatement of rent, if any,
Lessee shall have no claim against Lessor for any damage suffered by reason of
any such damage, destruction, repair or restoration.
(b) If Lessor shall be obligated to repair or restore the Premises under
the provisions of this Paragraph 9, and shall not commence such repair or
restoration within ninety (90) days after such obligation shall accrue. Lessee
may at Lessee's option cancel and terminate this Lease by giving Lessor written
notice of Lessee's election to do so at any time prior to the commencement of
such repair or restoration. In such event this Lease shall terminate as of the
date of such notice.
9.6 Termination - Advance Payments. Upon termination of this Lease
pursuant to this Paragraph 9, an equitable adjustment shall be made concerning
advance rent and any advance payments made by Lessee to Lessor. Lessor shall,
in addition, return to Lessee so much of Lessee's security deposit as has not
theretofore been applied by Lessor.
10. Real Property Taxes.
10.1 Payment of Taxes. Lessee shall pay the real property taxes
applicable to the Premises during the term of this Lease. All such payments
shall be made at least ten (10) days prior to the delinquency date of such
payment. Lessee shall promptly furnish Lessor with satisfactory evidence that
such taxes have been paid. If any such taxes paid by Lessee shall cover any
period of time prior to or after the expiration of the term hereof, Lessee's
share of such taxes shall be equitably prorated to cover only the period of time
within the tax fiscal year during which this Lease shall be in effect, and
Lessor shall reimburse Lessee to the extend required. If Lessee shall fail to
pay any such taxes, Lessor shall have the right to pay the same, in which case
Lessee shall repay such amount to Lessor with Lessee's next rent installment
together with interest at rate of ten percent (10%) per annum.
10.2 Definition of "Real Property Tax". As used herein, the term "real
property tax" shall include any form of assessment, license fee, commercial
rental tax, levy, penalty or tax (other than inheritance or estate taxes)
imposed by any authority having the direct or indirect power to tax, including
any city, county, state or federal government, or any school, agricultural,
lighting, drainage or other improvement district thereof, as against any legal
or equitable interest of Lessor in the Premises or in the real property of which
the Premises are a part as against Lessor's right to rent or other income
therefrom, or as against Lessor's business of leasing the Premises or any tax
imposed in substitution partially or totally of any tax previously included
within the definition of real property tax, or any additional tax the nature of
which was previously included within the definition of real property tax.
10.3 Joint Assessment. If the Premises are not separately assessed,
Lessee's liability shall be an equitable proportion of the real property taxes
for all of the land and improvements included within the tax parcel assessed,
such proportion to be determined by Lessor from the respective valuations
assigned in the assessor's work sheets or such other information as may be
reasonably available. Lessor's reasonable determination thereof, in good faith,
shall be conclusive.
10.4 Personal Property Taxes
(a) Lessee shall pay prior to delinquency all taxes assessed against
and levied upon trade fixtures, furnishings, equipment and all other personal
property of Lessee contained in the Premises or elsewhere. When possible,
Lessee shall cause said trade fixtures, furnishings, equipment and all other
personal property to be assessed and billed separately from the real property of
Lessor.
(b) If any of Lessee's said personal property shall be assessed with
Lessor's real property, Lessee shall pay Lessor the taxes attributable to Lessee
within 10 days after receipt of a written statement setting forth the taxes
applicable to Lessee's property.
11. Utilities. Lessee shall pay for all water, gas, heat, light, power,
telephone and other utilities and services supplied to the Premises, together
with any taxes thereon. If any such services are not separately metered to
Lessee, Lessee shall pay a reasonable proportion to be determined by Lessor of
all changes jointly metered with other premises.
12. Assignment and Subletting.
12.1 Lessor's Consent Required. Lessee shall not voluntarily or by
operation of law assign, transfer, mortgage, sublet, or otherwise transfer or
encumber all or any part of Lessee's interest in this Lease or in the Premises
without Lessor's prior written consent, which Lessor shall not unreasonably
withhold. Any attempted assignment, transfer, mortgage, encumbrance or
subletting without such consent shall be void, and shall constitute a breach of
this Lease.
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thereof, without Lessor's consent, to any corporation which controls, is
controlled by or is under common control with Lessee, or to any corporation
resulting from the merger or consolidation with Lessee, or to any person or
entity which acquires all the assets of Lessee as a going concern of the
business that is being conducted on the Premises, provided that said assignee
assumes, in full, the obligations of Lessee under this Lease. Any such
assignment shall not, in any way, affect or limit the liability of Lessee
under the terms of this Lease even if after such assignment, or subletting the
terms of this Lease are materially changed or altered without the consent of
Lessee, the consent of whom shall not be necessary.
12.3 No Release of Lessee. Regardless of Lessor's consent, no subletting
or assignment shall release Lessee of Lessee's obligation or as the primary
liability of Lessee to pay the rent and to perform all other obligations to be
performed by Lessee hereunder. The acceptance of a sublet or assignment by
Lessor from any other person shall not be deemed to be a waiver by Lessor of
any provision hereof. Consent in one assignment or subletting shall not be
deemed consent to any subsequent assignment or subletting. In the event of
default by any assignee of Lessee or any successors of Lessor in the
performance of any of the terms hereof. Lessor may proceed directly against
Lessee without the necessity of exhausting remedies against said assignee.
Lessor may consent to subsequent assignments or subletting of this Lease or
amendments or modifications to this Lease with assignees of Lessee, without
notifying Lessee, or any successor of Lessee, and without obtaining its or
their consent thereto and such action shall not relieve Lessee of liability
under this Lease.
12.4 Attorney's Fees. In the event Lessee shall assign or sublet the
Premises or request the consent of Lessor to any assignment subletting or if
Lessee shall request the consent of Lessor for any act that Lessee proposes to
do then Lessee shall pay Lessor's reasonable attorney's fees incurred in
connection therewith, such attorney's fees not to exceed $250.00 for each such
request.
13. Defaults; Remedies.
13.1 Defaults. The occurrence of any one or more of the following
events shall constitute a material default and breach of this Lease by Lessee.
(a) The vacating or abandonment of the Premises by Lessee, but only
if Lessee is in monetary or other substantial default in its obligations in
accordance with this Lease. Lessee abandoning or vacating the Premises while
otherwise maintaining its obligations under this Lease shall not constitute
default.
(b) The failure by Lessee to make any payment of rent or any other
payment required to be made by Lessee hereunder as and when due where such
failure shall continue for a period of three (3) days after written notice
thereof from Lessor to Lessee.
(c) The failure by Lessee to observe or perform any of the
covenants, conditions or provisions of this Lease to be observed or performed by
Lessee other than described in Paragraph (b) above, where such failure shall
continue for a period of thirty (30) days after written notice hereunder from
Lessor to Lessee; provided, however, that if the nature of Lessee's default is
such that more than thirty (30) days are reasonably required for its cure, then
Lessee shall not be deemed to be in default if Lessee commenced such cure within
thirty (30) day period and thereafter diligently pursues such current
completion.
(d) (i) The making by Lessee of any general assignment, or general
arrangement for the benefit of creditors, (ii) the filing by or against Lessee
of a petition to have Lessee adjudged a bankrupt or a petition for
reorganization or arrangement under any law relating to bankruptcy (unless in
the case of a petition filed against Lessee, the same is dismissed within sixty
(60) days, (iii) the appointment of a trustee or receiver to take possession of
substantially all of Lessee's assets located at the Premises or of Lessee's
interest in this Lease, where possession is not restored to Lessee within thirty
(30) days, or (iv) the attachment, execution or other judicial seizure of
substantially all of Lessee's assets located at the Premises or of Lessee's
interest in this Lease where such seizure is not discharged within thirty (30)
days.
(e) The discovery by Lessor that any financial statement given to
Lessor by Lessee, any assignee of Lessee, any subtenant of Lessee, any successor
in interest of Lessee or any guarantor of Lessee's obligations hereunder and any
of them, was materially false.
13.2 Remedies. In the event of any such material default or breach by
Lessee, Lessor may at any time thereafter with or without notice, demand and
without limiting Lessor in the exercise of any right or remedy which Lessor may
have by reason of such default or breach.
(a) Terminate Lessee's right to possession of the Premises by any
lawful means, in which case this Lease shall terminate and Lessee shall
immediately surrender possession of the Premises to Lessor. In such event
Lessor shall be entitled to recover from Lessee all damages incurred by Lessor
by reason of Lessee's default including, but not limited to, the cost of
recovering possession of the Premises, expenses for reletting, including
necessary renovation and alteration of the Premises, reasonable attorneys fees,
and any real estate commission actually incurred, the worth at the time of
award by the court having jurisdiction thereof of the amount by which the
unpaid rent for the balance of the term after the time of such award exceeds
the amount of such rental loss for the same period that Lessee proves could be
reasonably avoided, that portion of the leasing commission paid by Lessor
pursuant to Paragraph 15 applicable to the unexpired term of this Lease.
(b) Maintain Lessee's right to possession in which case this Lease
shall continue in effect whether or not Lessee shall have abandoned the
Premises. In such event Lessor shall be entitled to enforce all of Lessor's
rights and remedies under this Lease, including the right to recover the rent as
it becomes due hereunder.
(c) Pursue any other remedy now or hereafter available to Lessor
under the laws or judicial decisions of the State in which the Premises are
located.
13.3 Default by Lessor. Lessor shall not be in default unless Lessor
fails to perform obligations required of Lessor within a reasonable time, but in
no event later than thirty (30) days after written notice by Lessee to Lessor
and to the holder of any first mortgage or deed of trust covering the Premises
whose name and address shall have theretofore been furnished to Lessee in
writing, specifying wherein Lessor has failed to perform such obligations,
provided, however, that if the nature of Lessor's obligation is such that more
than thirty (30) days are required to performance then Lessor shall not be
in default if Lessor commences performance within such thirty (30) day period
and thereafter diligently prosecutes the same to completion.
13.4 Late Charges. Lessee hereby acknowledges that late payment by Lessee
to Lessor of rent and other sums due hereunder will cause Lessor to incur cost
not contemplated by this Lease, the exact amount of which will be extremely
difficult to ascertain. Such costs include, but are not limited to, processing
and accounting charges, and late charges which may be imposed on Lessor by the
terms of any mortgage or trust deed covering the Premises. Accordingly, if any
installment of rent or any other sum due from Lessee shall not be received by
Lessor or Lessor's designee within ten (10) days after such amount shall be due.
Lessee shall pay to Lessor a late charge equal to such overdue amount. The
parties hereby agree that such late charge represents a fair and reasonable
estimate of the costs Lessor will incur by reason of late payment by Lessee.
Acceptance of such late charge by Lessor shall in no event constitute a waiver
of Lessee's default with respect to such overdue amount, nor prevent Lessor from
exercising any of the other rights and remedies granted hereunder.
14. Condemnation. If the Premises or any portion thereof are taken under the
power of eminent domain, or sold under the threat of the exercise of said power
(all of which are herein called "condemnation"), this Lease shall terminate as
to the part so taken as of the date the condemning authority takes title or
possession whichever first occurs. If more than ten percent (10%) of the floor
area of the improvements on the Premises or more than twenty-five percent (25%)
of the land area of the Premises which is not occupied by any improvements is
taken by condemnation, Lessee may, at Lessee's option, to be exercised in
writing only within ten (10) days after Lessor shall have Lessee written
notice of such taking (or in the absence of such notice, within ten (10) days
after the condemning authority shall have taken possession) terminate this Lease
as of the date the condemning authority takes such possession. If Lessor does
not terminate this Lease in accordance with the foregoing this Lease shall
remain in full force and effect as to the portion of the remaining except
that the rent shall be reduced in the proportion that the floor area taken bears
to the total floor area of the building situated on the Premises. Any award for
the taking of all or any part of the Premises under the power of eminent domain
or any payment made under threat of the exercise of such power shall be the
property of Lessor, whether such award shall be made as compensation for
diminution in value of the leasehold or for the taking of the fee or as
severance damages, provided, however, that Lessee shall be entitled to any award
for loss of or damage to Lessee's trade fixtures and removable personal
property. In the event that this Lease is not terminated by reason of such
condemnation Lessor shall to the extent of severance damages received by Lessor
in connection with such condemnation, repair any damage to the Premises caused
by such condemnation except to the extend that Lessee has been reimbursed
therefor by the condemning authority. Lessee shall pay any amount in excess of
such severance damages required to complete such repair.
15. Broker's Fee. Upon execution of this Lease by both parties, Lessor shall
pay to see (10) of Lease Addendum attached.
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16. General Provisions
16.1 Estoppel Certificate
(a) Lessee shall at any time upon not less than ten (10) days prior
written notice from Lessor execute, acknowledge and deliver to Lessor a
statement in writing (i) certifying that this Lease is unmodified and in full
force and effect (or, if modified, stating the nature of such modification and
certifying that this Lease, as so modified, is in full force and effect) and the
date to which the rent and other charges are paid in advance, if any, and (ii)
acknowledging that there are not, to Lessee's knowledge, any uncured defaults on
the part of Lessor hereunder, or specifying such defaults if any are claimed.
Any such statement may be conclusively relied upon by any prospective purchaser
or encumbrancer of the Premises.
(b) Lessee's failure to deliver such statement within such time
shall be conclusive upon Lessee (i) that this Lease is in full force and effect
without modification except as may be represented by Lessor (ii) that there is
no uncured defaults in Lessor's performance and (iii) that not more than one
month's rent has been paid in advance or such failure may be considered by
Lessor as a default by Lessee under this Lease.
(c) If Lessor desires to finance or refinance the Premises, or any
part thereof, Lessee hereby agrees to deliver any lender designated by Lessor
such financial statements of Lessee as may be reasonably required by such
lender. Such statements shall include the past three (3) years' financial
statements of Lessee. All such financial statements shall be received in
confidence and shall be used only for the purposes herein set forth.
16.2 Lessor's Liability. The term "Lessor" as used herein shall mean only
the owner or owner's at the time in question of the fee title or a lessee's
interest in a ground lease of the Premises and except as expressly provided in
Paragraph 15. In the event of any transfer of such title or interest, Lessor
herein named (and in case of any subsequent transfers the then grantor) shall be
relieved from and after the date of such transfer of all liability as respects
Lessor's obligations thereafter to be performed provided that any funds in the
hands of Lessor or the then grantor at the time of such transfer in which Lessee
has an interest, shall be delivered to the grantee. The obligations contained in
this Lease to be performed by Lessor shall subject as aforesaid be binding on
Lessor's successor and assigns only during their respective periods of
ownership.
16.3 Severability. The invalidity of an provision of this Lease as
determined by a court of competent jurisdiction, shall in no way affect the
validity of any other provision hereof.
16.4 Interest on Past Due Obligations. Except as expressly herein
provided, any amount due Lessor not paid when due shall bear interest at ten
percent (10%) per annum from the date due. Payment of such interest shall not
excuse or cure any default by Lessee under this Lease, provided, however, that
interest shall not be payable on late charges incurred by Lessee nor on any
amounts upon which late charges are paid by Lessee.
16.5 Time of Essence. Time is of the essence.
16.6 Captions. Article and paragraph captions are not a part hereof.
16.7 Incorporation of Prior Agreements; Amendments. This Lease contains
all agreements of the parties with respect to any matter mentioned herein. No
prior agreement or understanding pertaining to any such matter shall be
effective. This Lease may be modified in writing only, signed by the parties in
interest at the time of the modification. Except as otherwise stated in this
Lease, Lessee hereby acknowledges that neither the real estate broker listed in
Paragraph 15 hereof nor any cooperating broker on this transaction nor the
Lessor or any employees or agents of any of said persons has made any oral or
written warranties or representations to Lessee relative to the condition or use
by Lessee of said Premises and Lessee acknowledges that Lessee assumes all
responsibility regarding the Occupational Safety Health Act or the legal use of
adaptability of the Premises and the compliance thereof to all applicable laws
and regulations enforced during the term of this Lease except as otherwise
specifically stated in this Lease.
16.8 Notices. Any notice required or permitted to be given hereunder shall
be in writing and may be given by certified mail, and shall be deemed
sufficiently given if addressed to Lessee or to Lessor at the address noted
below the signature of the respective parties as the case may be. Either party
may by notice to the other specify a different address for notice purposes. A
copy of all notices required or permitted to be given to Lessor hereunder shall
be concurrently transmitted to such party or parties at such addresses as Lessor
may from time to time hereafter designate by notice to Lessee.
16.9 Waivers. No waiver by Lessor of any provision hereof shall be deemed
a waiver of any other provision hereof or of any subsequent breach by Lessee of
the same or any other provision. Lessor's consent to or approval of any act
shall not be deemed to render unnecessary the obtaining of Lessor's consent to
or approval of any subsequent act by Lessee. The acceptance of rent hereunder by
Lessor shall not be a waiver of any preceding breach by lessee of any provision
hereof, other than the failure of Lessee to pay the particular rent so accepted,
regardless of Lessor's knowledge of such preceding breach at the time of
Lessor's knowledge of such preceding breach at the time of acceptance of such
rent.
16.10 Recording. Lessee shall not record this Lease without Lessor's prior
written consent and such recordation shall, at the option of Lessor constitute a
non-curable default of Lessee hereunder. Either party shall, upon request of the
other, execute, acknowledge and deliver to the other a "short form" memorandum
of this Lease for recording purposes.
16.11 Holding Over. If Lessee remains in possession of the Premises or any
part thereof after the expiration of the term hereof without the express written
consent of Lessor, such occupancy shall be a tenancy from month to month at a
rental in the amount of the last monthly rental plus 50% of monthly rent.
16.12 Cumulative Remedies. No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other remedies at
law or in equity.
16.13 Covenants and Conditions. Each provision of this Lease performable
by Lessee shall be deemed both a covenant and a condition.
16.14 Binding Effect; Choice of Law. Subject to any provisions hereof
restricting assignment or subletting by Lessee and subject to the provisions of
Paragraph 16.2 this Lease shall bind the parties, their personal
representatives, successors and assigns. This Lease shall be governed by the
laws of the State in which the Premises are located.
16.15 Subordination.
(a) This Lease, at Lessor's option, shall be subordinate to any
ground lease, mortgage, deed of trust, or any other hypothecation for security
now or hereafter placed upon the real property of which the Premises are a part
and to any and all advances made on the security thereof and to all renewals,
modifications, consolidations, replacements and extensions thereof.
Notwithstanding such subordination, Lessee's right to quiet possession to the
Premises shall not be disturbed if Lessee is not in default and so long as the
Lessee shall pay the rent and observe and perform all of the provisions of this
Lease unless this Lease is otherwise terminated pursuant to its terms. If any
mortgagee, trustee or ground lessor shall elect to have this Lease prior to the
lien of its mortgage, deed of trust or ground lease, and shall give written
notice thereof to Lessee, this Lease shall be deemed prior to such mortgage,
deed of trust or ground lease, whether this Lease is dated prior or subsequent
to the date of said mortgage, deed of trust or ground lease or the date of
recording thereof.
(b) Lessee agrees to execute any documents required to effectuate
such subordination or to make this Lease prior to the lien of any mortgage, deed
of trust or ground lease, as the case may be, and failing to do so within ten
(10) days after written demand, does hereby make constitute and irrevocably
appoint Lessor as Lessee's attorney in fact and in Lessee's name, place and
stead, to do so.
16.16 Attorney's Fees. If either party or the broker named herein brings an
action to enforce the terms hereof or declare rights hereunder, the prevailing
party in any such action, on trial or appeal, shall be entitled to his
reasonable attorney's fees to be paid by the losing party as fixed by the court.
The provisions of this paragraph shall inure to the benefit of the broker named
herein who seeks to enforce a right hereunder.
16.17 Lessor's Access. Lessor and Lessor's agents shall have the right to
enter the Premises at reasonable times for the purpose of inspecting the same,
showing the same to prospective purchasers, or lenders, or lessees, and making
such alterations, repairs, improvements or additions to the Premises or to the
building of which they are a part as Lessor may deem necessary or desirable.
Lessor may at any time place on or about the Premises any ordinary "For Sale"
signs and Lessor may at any time during the last 120 days of the term hereof
place on or about the Premises any ordinary "For Lease" signs, all without
rebate of rent or liability to Lessee.
16.18 Signs and Auctions. Lessee shall not place any sign upon the Premises
or conduct any auction thereon without Lessor's prior written consent except
that Lessee shall have the right, without the prior permission of Lessor to
place ordinary and usual for rent or sublet signs thereon.
16.19 Merger. The voluntary or other surrender of this Lease by Lessee, or
a mutual cancellation thereof, or a termination by Lessor, shall not work a
merger, and shall, at the option of Lessor terminate all or any existing
subtenancies or may, at the option of Lessor, operate an assignment to Lessor of
any or all of such subtenancies.
16.20 Corporate Authority. If Lessee is a corporation, each individual
executing this Lease on behalf of said corporation represents and warrants that
he is duly authorized to execute and deliver this Lease on behalf of said
corporation, in accordance with a duly adopted resolution of the Board of
Directors of said corporation or in accordance with the Bylaws of said
corporation, and that this Lease is binding upon said corporation in accordance
with its terms. If Lessee is a corporation Lessee, shall within thirty (30) days
after execution of this Lease, deliver to Lessor a certified copy of a
resolution of the Board of Directors of said corporation authorizing or
ratifying the execution of this Lease.
5
16.21 Consent not to be unreasonably withheld. If the consent of one party
is required to permit any action of the other party such consent shall not be
unreasonably withheld.
16.22 Guarantor. In the event that there is a guarantor of this Lease, said
guarantor shall have the same obligations as Lessee under Paragraphs 16.1 and
16.20 of this Lease.
16.23 Quiet Possession. Upon Lessee paying the fixed rent reserved
hereunder and observing and performing all of the covenants, conditions and
provisions on Lessee's part to be observed and performed hereunder, Lessee shall
have quiet possession of the Premises for the entire term hereof subject to all
of the provisions of this Lease.
16.24 Options. In the event that the Lessee under the terms of this Lease,
has any option to extend the term of this Lease, or any option to purchase the
Premises or any right of first refusal to purchase the Premises or other
property of Lessor, then each of such options and rights are personal to Lessee
and may not be exercised or be assigned, voluntarily or involuntarily, by or to
any one other than Lessee except to the extent that they may be exercised by
or assigned to any of the entities described in Paragraph 12.2 hereof for whom
Lessee does not need the consent of Lessor to assign this Lease. In the event
that Lessee hereunder has any multiple options to extend this Lease a later
option to extend the Lease or any further option may be exercised unless the
prior option has been so exercised.
16.25 Multiple Tenant Building Rules and Regulations. In the event that the
Premises are part of a larger building or group of buildings, then Lessee agrees
that it will abide by, keep and observe all reasonable rules and regulations
which Lessor may make from time to time with respect to the management,
safety, care and cleanliness of the building and grounds, the parking of
vehicles and the preservation of good order thereof as well as for the
convenience of other occupants and tenants of the building. Further, Lessee
will promptly pay its prorata share as reasonably determined by Lessor, of any
maintenance or repair of such portion of the Premises or such portion of the
property of which the Premises are a part which are common areas or used by
Lessee and other occupants thereof. The violations of any such rules and
regulations or the failure to pay such pro rata share of costs, shall be
deemed a material breach of this Lease by Lessee.
16.26 Insuring Party. The insuring party under this Lease shall be the
Lessor & Lessee will reimburse Lessee's proportionate share to Lessor, except
for Lessee's liability insurance and personal property insurance, to be
obtained, paid for and maintained by Lessee, in accordance with term of this
Lease.
16.27 Additional Provisions. If there are not additional provisions draw a
line from this point to the next printed word after the space left here if there
are additional provisions place the same here.
Four pages of Lease Addendum attached.
The parties hereto have executed this Lease at the place and on the dates
specified immediately adjacent to their respective signatures.
THIS HAS BEEN PREPARED FOR SUBMISSION TO YOUR ATTORNEY FOR APPROVAL. NO
REPRESENTATION OR RECOMMENDATION IS MADE BY TRI COMMERCIAL REAL ESTATE SERVICES,
BROKER OR ITS AGENTS OR EMPLOYEES AS TO THE LEGAL SUFFICIENCY, LEGAL EFFECT OR
TAX CONSEQUENCES OF THIS LEASE OR THE TRANSACTION RELATING THERETO. THE PARTIES
SHALL RELY SOLELY UPON THE ADVICE OF THEIR OWN LEGAL COUNSEL AS TO THE LEGAL AND
TAX CONSEQUENCES OF THIS LEASE.
Executed at San Mateo, California /s/ [SIGNATURE]
---------------------------- --------------------------------
On June 16, 1995 By Building Manager
-------------------------------------- -----------------------------
Address 000 Xxxxxx Xxxxxx #000 By _____________________________
--------------------------------
Xxx Xxxxx, XX 00000 "LESSOR" (Corporate Seal)
--------------------------------
Executed at San Francisco, CA NorCal Realty Partners, L.P.
---------------------------- --------------------------------
On June 12, 1995 By RMNorCal Realty, Inc.
------------------------------------- -----------------------------
Address 000 Xxxx Xxxxxx, Xxxxx 0000 By /s/ Xxxxxx X. Xxxxxxx
-------------------------------- -----------------------------
Xxx Xxxxxxxxx, XX 00000 Xxxxxx X. Xxxxxxx
"LESSEE" (Corporate Seal)
Its Chairman and CEO
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ADDENDUM TO THE LEASE for 000 XXXXXX XXXXXX, XXX XXXXX
(1) Property: Approximately 7,370 square feet of rentable space, a portion
of the ground floor (plus mezzanine) of a commercial project
("Project") bearing the street address indicated above, with
parking privileges, use of all common areas, and signage
rights as hereinafter described.
(2) Term: Term for the ground floor space shall be for a period of
five (5) years. Tenant shall have the right to extend the
lease for an additional period equal to the initial term
commencing at termination of the previous term at then fair
market value. However, Tenant must give Landlord one hundred
& eighty (180) days notice of intent to extend or intention
to vacate at the end of this Lease.
(3) Commencement: July 1, 1995.
(4) Rent: Base Rent upon inception shall be $150,348.00 per annum,
$1.70 per square foot, NNN. Tenant shall be responsible for
their own utilities if separately metered to premises,
janitorial service, and shall, at all times, keep those non-
structural interior portions of the Premises not part of
building systems, in good and sanitary condition and repair.
Notwithstanding anything contained in Sec. 7, and,
particularly Sec.7.4. of the Lease to the contrary,
Landlord shall maintain and repair the structural elements
and the public and common areas of the Building, as same may
exist from time to time, in good and sanitary condition and
repair, providing utilities and services to same at all
appropriate times. The cost of such care, maintenance and
services shall be considered building operating costs;
Tenant, in accordance with "(5)" herein, shall be
responsible for its proportionate share of such costs.
(5) Building Tenant shall be responsible for its proportionate share of
Operating building operating costs except with certain special
Costs: concerns as to Real Property Taxes hereinafter provided, to
be passed through to the Tenant. However, no increase in
Operating Expenses, inclusive of any Real Property Tax
adjustments, shall increase the rent payable by Tenant by
more than 5% over the previous year's Base Rent excluding
Base Rent Adjustment as hereinafter described.
(6) Base Rent On each anniversary of the inception date of the lease-term,
Adjustment: the Base Rent shall increase by an amount equal to 3.5% of
the Base Rent excluding Operating Costs, paid in the
previous lease-year, i.e.:
Year 1: $1.70/sf = $12,529.00 per month
Year 2: $1.76/sf = $12,971.20 per month
Year 3: $1.82/sf = $13,413.40 per month
Year 4: $1.88/sf = $13,855.60 per month
Year 5: $1.95/sf = $14,371.50 per month
(7) Allowance Landlord shall provide an allowance for Tenant's
for Tenant Improvements equal to $15.00 per square foot of leasable
Improvements: space to be occupied by the tenant to a maximum total of
$110,550.00 all in accordance with Tenant's plans for
improvements of the space, including all floor treatments,
window treatments, built-in fixtures, redesign and
restructuring of the HVAC system to accommodate Tenant's
plans, all interior partition walls, electrical and/or
telephone systems as may be required, but solely for
improvements permanently affixed to the realty and NOT for
"any non-fixture objects that Tenant can take away after
lease termination", all to code limits, and all subject to
first obtained consent of Landlord not unreasonably or
untimely withheld. TI plan should not touch structural
members and not to affect building outlook. Solely for any
changes or improvements made to the property through the
term of the Lease or any extension thereforeof without the
prior consent of the Landlord obtained in writing, Tenant
shall be responsible for reinstatement of space to its
original state if Landlord so desires, upon termination of
lease. Tenant shall be solely responsible for design and
construction of all Tenant Improvements contemplated by this
Lease. Tenant shall obtain all necessary licenses and
construction permits and hire contractors and sub-
contractors. Tenant shall furnish Landlord with copies of
all work progress reports and invoices received in
connection with construction of Tenant Improvements, and
Landlord will pay against invoices as they are presented and
within 7 (seven) business days of receipt thereof by
delivery to Landlord or to Landlord's designated
representative.
Tenant shall obtain all necessary performance bonds from
contractors and subcontractors and hold Landlord harmless
from any loss, cost or expense incurred in connection with,
or as a result of, construction of the Tenant Improvements.
Should such costs exceed $15.00 per square foot, Tenant
shall be solely responsible for such excess costs.
(8) Use: Premises shall be used as a real estate office and training
center along with other real estate usages, and/or general
office use. Tenant shall have right to sublease solely on
condition that Tenant remains in primary position of
liability for lease obligation and one half of any excess
rent received from any subtenant not directly affiliated
with Tenant is payable to Landlord and may, without
Landlord's consent, assign lease to any division, subsidiary
or successor into which Tenant may be merged, consolidated,
or acquired, providing successor shall fully assume all
Tenant's liability under terms of the lease.
(9) Security Payment of first month's rent due in accordance
Deposit: with terms of this Lease shall be made concurrently with
Tenant's delivery of Tenant-executed copies of this Lease,
and Landlord shall continue to hold a Security Deposit
previously in Landlord's possession in the amount of
$11,055.00 held subject to terms of this Lease.
(10) Brokers Broker's commission for this transaction to
Commission: Xxxxxx X. Xxxxxxxxxx, Consulting Realtor, shall equal Three
Percent (3%) of gross value of the Lease for initial term
therefore. No commission due to "option" period or any
future expansion or extension.
(11) Signage: Tenant shall have the right to retain all existing signage
as well as to install additional facade or monument signage
satisfactory to Tenant, to the maximum, size and design
permitted by local codes and ordinances, with reasonable
consent of Landlord and approval of the City of San Mateo as
well as other ground floor tenants.
(12) Parking: As currently enjoyed by Tenant, at the same current monthly
payment of $870 per month on top of the rent. (Currently,
Tenant pays $500 with rent and $370 separately). Any
additional parking will be extra.
Tenant shall obtain all necessary performance bonds from
contractors and sub-contractors and hold Landlord harmless
from any loss, cost or expense incurred in connection with,
or as a result of, construction of the Tenant Improvements.
Should such costs exceed $15.00 per square foot, Tenant
shall be solely responsible for such excess costs.
(8) Use: Premises shall be used as a real estate office and training
center along with other real estate usages, and/or general office
use. Tenant shall have right to sublease solely on condition that
Tenant remains in primary position of liability for lease
obligation and one half of any excess rent received from any
subtenant not directly affiliated with Tenant is payable to
Landlord and may, without Landlord's consent, assign lease to any
division, subsidiary or successor into which Tenant may be
merged, consolidated, or acquired, providing successor shall
fully assume all Tenant's liability under terms of the lease.
(9) Security Payment of first month's rent due in accordance with terms of
Deposit this Lease shall be made concurrently with Tenant's delivery of
Tenant-executed copies of this Lease, and Landlord shall continue
to hold a Security Deposit previously in Landlord's possession in
the amount of $11,055.00 held subject to terms of this Lease.
(10) Brokers Broker's commission for this transaction to Xxxxxx X.
Commission: Xxxxxxxxxx, Consulting Realtor, shall equal Three Percent
(3%) of gross value of the Lease for initial term therefore.
No commission due to "option" period or any future expansion
or extension.
(11) Signage: Tenant shall have the right to retain all existing signage as
well as to install additional facade or monument signage
satisfactory to Tenant, to the maximum, size and design permitted
by local codes and ordinances, with reasonable consent of
Landlord and approval of the City of San Mateo as well as other
ground floor tenants.
(12) Parking: As currently enjoyed by Tenant, at the same current monthly
payment of $870 per month on top of the rent. (Currently, Tenant
pays $500 with rent and $370 separately). Any additional parking
will be extra.
(13) HVAC: Landlord shall provide HVAC to Tenant during the business
hours of 8:00 am to 6:00 pm, Monday to Friday except Public
Holidays.
(14) Percentage of Tenant's share of Property Tax Increases and Direct
Expenses increases is 11.53%.
(15) Option period for Suite 211 currently occupied by Prudential will expire
September 30, 1995.
(16) Upon inception and commencement of this Lease, an extension of a previous
lease and the document representating that extension shall be cancelled
and of no further force or effect.
(17) Notwithstanding anything contained in Section 10 of this Lease to the
contrary, that amount which may be passed through and charged to Tenant as
an increase pursuant to any tax-reassessment as a consequence of transfer
of title or refinancing of the Building shall be limited to a percentage
of increase no greater than otherwise hereinabove "(5)", provided;
depreciable improvements to the Building in which tax benefit accrues to
Landlord or such improvement(s) is amortized over a term shall be passed
through to Tenant over that amortization period and on the same percentage
basis. Tenant shall be responsible for any increase in taxes resulting
from Tenant Improvements within the Premises.
(18) As used in this Lease, the terms "Landlord" and Lessor", and the terms
"Tenant" and "Lessee" shall be inter-changeable and no significance shall
attach to the arbitrary use of these terms.
Executed at: San Mateo /s/ [SIGNATURE]
---------------------------- ----------------------------------
on June 16, 1995 By Building Manager
-------------------------------------- --------------------------------
Address: 000 Xxxxxx Xxxxxx #000 By
------------------------------- --------------------------------
Xxx Xxxxx, XX 00000 LESSOR
-------------------------------
Executed at: San Francisco, CA NorCal Realty Partners, L.P.
--------------------------- ----------------------------------
on June 12, 1995 By RMNorCal Realty, Inc.
-------------------------------------- --------------------------------
Address: 000 Xxxx Xxxxxx, Xxxxx 0000 By /s/ Xxxxxx X. Xxxxxxx
-------------------------------- --------------------------------
Xxx Xxxxxxxxx, XX 00000 Xxxxxx X. Xxxxxxx
--------------------------------
LESSEE Its Chairman and CEO
OFFICE LEASE
PARTIES. This lease, made this 15th day of February between ROSJAN LIMITED
PARTNERSHIP and Infospace, Inc., Tenant.
WITNESSETH:
1. PREMISES. Landlord hereby leases to Tenant and Tenant hereby hires from
Landlord those certain Premises (hereinafter called "Premises") outlined in red
on Exhibit A attached hereto and by this reference made a part hereof, said
Premises being situated on the 2nd floor, Suite 218 and 222 of that certain
building (hereinafter called "Building") known as 000 Xxxxxx Xxxxxx, Xxx Xxxxx,
-----------------------------
California.
-----------
Said letting and hiring is upon and subject to the terms, covenants and
conditions herein set forth and Tenant covenants as a material part of the
consideration for this Lease to keep and perform each and all of said terms,
covenants and conditions by it to be kept and performed and that this Lease is
made upon the condition of such performance.
2. PURPOSE. The Premises shall be used for general office purposes and for no
other use or purpose without the prior written consent of Landlord.
3. TERM. The term of this Lease shall be for twenty-eight (28) months and
fourteen (14) days commencing on the 15th day of February, 1998, (the "Lease
Term"), ending on the 30th day of June, 2000.
4. POSSESSION. If Landlord, for any reason whatsoever, cannot deliver
possession of the said Premises to Tenant at the commencement of the term
hereof, this Lease shall be void or voidable, nor shall Landlord be liable for
any loss or damage resulting therefrom, but in that event there shall be
proportionate reduction of rent covering the period between the commencement of
the said term and the time when Landlord can deliver possession. If possession
of the Premises is not delivered to Tenant within six months from the scheduled
commencement date, this Lease will terminate. Should Landlord tender possession
of the Premises to Tenant prior to the date specified for the commencement of
the term, and Tenant accepts such prior tender, such prior occupancy shall be
subject to all terms, covenants and conditions of this Lease, including the
payment of rent.
5. RENT. On or before the first day of each calendar month during the term
hereof, Tenant shall pay to Landlord, as minimum monthly rent for the Premises,
the sum of $6,980.05. The minimum monthly rent for any partial month shall be
--------
pro-rated at the rate of 1/30 of the minimum monthly rent per day. Said rent
-----------------------------------------------------------------
shall be paid by Tenant to Landlord, in advance, without deduction or offset, in
lawful money of the United States of America at 000 Xxxxxx Xxxxxx, Xxxxx 000,
-----------------------------
San Mateo, California, or to such other person or at such place as Landlord may
----------------------
from time to time designate in writing. The minimum monthly rent for the
premises shall increase as stated below:
February 15, 1998 through June 30, 1999- $6,980.05 per month
July 1, 1999 through June 30, 2000- $7,168.70 per month
1
6. RENTAL ADJUSTMENT.
(A) In addition to the monthly rent provided for in Paragraph 5 hereof, Tenant
shall pay to Landlord the sums set forth in the following subparagraphs.
Tenant's percentage share as set forth below has been calculated by dividing the
number of square feet of rentable area in the Premises by the number of square
feet rentable in the building. In the event the rentable area of the building is
changed, the Tenant's percentage share shall be appropriately adjusted. Rentable
area shall be based upon the Building Owners and Managers Association
International (BOMAI) standard method of floor measurement for office buildings.
Tenant hereby approves and accepts Landlord's calculation of Tenant's current
percentage share as set forth below.
(B) Tax Increases and Assessments. Tenant shall pay to Landlord an amount equal
to 4.95% of any increase in real property taxes and assessments or other fees or
charges of whatsoever kind or character imposed by a governmental agency which
may be levied on the land and building of which the Premises are a part and
personal property taxes levied on personal property of Landlord used in the
operation of said land and building above the amount of such taxes levied and
assessed for the fiscal tax year ending 1998, either by way of increase in the
rate or in the assessed valuation of said land and building or by imposition of
any such charges by ordinance or statute of any authority having jurisdiction.
For the purposes of the subparagraph (A), real and personal property taxes shall
include, without limitation, taxes of every kind and nature levied and assessed
in lieu of or in substitution for existing or additional real or personal
property taxes on said land and building as well as any form of assessment,
license, fee, levy, penalty, or tax (other than inheritance or state taxes),
imposed by any authority having the direct or indirect power to tax, including
any city, county, state, or federal government, or any school, Agricultural,
lighting, drainage, or other improvement district, as against any legal or
equitable interest of Landlord in the Premises or in the real property of which
the Premises are a part, or as against Landlord's right to rent or other income
therefrom, or as against Landlord's business of leasing the Premises, and
including any and all charges which may be charged by the environmental
protection agency or other similar governmental regulatory agency or authority.
In addition, Tenant shall pay one hundred percent (100%) of any increase in
taxes or assessments of whatsoever kind and nature (including, without
limitation, all personal property taxes) caused by improvements or installations
made by Tenant to the Premises at any time during the term hereof. The total
amounts due hereunder shall be paid to Landlord on or before the date full
payment of such taxes or assessments or, if payable in installments, the date
payment of the first installment of such taxes or assessments shall become due.
In the event said taxes or assessments are charged to or paid or payable by
Landlord, Tenant forthwith upon demand therefore, shall reimburse Landlord for
all amounts of such taxes or assessments chargeable against Tenant pursuant to
this subparagraph (B) and paid by Landlord.
(C) Operating Expense Increases. Tenant shall pay to Landlord, at the times
hereinafter set forth, an amount equal to 4.95% of any increase in direct
expenses paid or incurred by Landlord on account of the operation or maintenance
of the building above such direct expenses paid or incurred by Landlord during
the Base Year. "Base Year" as used in this subparagraph (c) shall mean the
calendar year 1998. "Direct expenses" as used herein shall include all direct
costs of operation and maintenance as determined by standard accounting
practices as set forth in the Building Owners and Managers Association
International (BOMAI) chart of accounts from time to time (excluding, however,
any and all taxes of the nature set forth in subparagraph (B)
2
above) and shall include the following by way of illustration but not
limitation: the cost of contesting by appropriate proceeding the amount or the
validity of any of the aforementioned taxes or fees; water and sewer charges;
insurance premiums; license, permit and inspection fees; charges for heat,
light, power and steam; janitorial services; labor; supplies; materials,
equipment and tools; and management fees. "Direct expenses" as used herein shall
not include depreciation on the building or equipment therein, interest, or real
estate broker's commissions.
Statements of the amount of direct expenses for the preceding calendar year and
the amount of such increase payable by Tenant shall be determined or estimated
by Landlord shall be given to Tenant on such date as Landlord shall from time to
time determine. All amounts payable by Tenant as shown on said statement shall
be paid by Tenant within the time required by said statement. If during any such
year Landlord shall revise its estimate of Tenant's share of said expenses for
said year, Landlord shall advise Tenant and commencing on the next date payment
of additional charges are due, Tenant shall pay all additional charges based on
such revised estimate for the portion of the year already elapsed and shall
commence paying the additional charges based on such revised estimate for the
remainder of such year.
7. SECURITY. Simultaneously with the execution of this Lease, Tenant shall
deposit with Landlord the sum of $10,470.08 of which sum $3,490.03 shall be
payment of the February 1998 rent and the balance thereof, namely $6,980.05
shall be held by Landlord as security for the faithful performance by Tenant of
all the terms, covenants and conditions of this lease. Provided that at the end
of the term Tenant shall have delivered up the Premises to Landlord, broom
clean, and in the same condition as at the commencement date, reasonable wear
excepted, said sum held as security shall be returned to Tenant. No interest
shall be payable thereon and Landlord shall not be required to keep said sum in
a separate account. No security or guaranty which may now or hereafter be
furnished Landlord for the payment of the rent herein reserved or for
performance by Tenant of the other covenants or conditions of this Lease shall
in any way be a 6; or defense to any action in unlawful detainer, or for the
recovery of the Premises, or to any action which Landlord may at any time
commence for a breach of any of the covenants or conditions of this Lease.
8. USES PROHIBITED. 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 rate of or affect any fire or other insurance upon the building or
any of its contents or cause a cancellation of any insurance policy covering
said building or 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 or injure or annoy them, or
use or allow the Premises to be used for any residential, immoral, unlawful, or
objectionable purpose, nor shall Tenant cause, maintain, or permit any nuisance
in, on or about the Premises. No cooking devices or other odor-causing devices,
loudspeakers or other similar device, system or apparatus which can be heard or
experienced outside the Premises shall, without the prior written approval of
Landlord, be used in or at the Premises. Tenant shall not commit or suffer to be
committed any waste in or upon the Premises.
9. COMPLIANCE WITH LAW. Tenant shall not use or permit anything to be done in
or about the Premises which will in any way conflict with any law, statute,
ordinance or governmental rule, regulation or requirement now in force or which
may hereafter be enacted or promulgated. Tenant, at its sole cost and expense,
shall promptly comply with all laws, statutes, ordinances
3
and governmental rules, regulations or requirements now in force or which may
hereafter be in force and with the requirements of any board of fire
underwriters or other similar body now or hereafter constituted relating to or
affecting the condition, use of occupancy of the Premises, excluding structural
changes not related to or affected by Tenant's improvements or acts. The
judgment of any court of competent jurisdiction or the admission of Tenant in an
action against Tenant, whether Landlord be a party thereto or not, that Tenant
has violated any law, statute, ordinance or governmental rule, regulation or
requirement shall be conclusive of that fact as between Landlord and Tenant.
10. ALTERATIONS. Tenant shall not make or suffer to be made any alterations,
additions or improvements to or of the Premises or any part thereof without the
written consent of Landlord first had and obtained. Any alterations, additions,
or improvements to or of said Premises, including without limitation any
partitions, movable or otherwise, and all carpeting, shall at once become a part
of the-realty and belong to Landlord. Movable furniture, equipment and trade
fixtures shall remain the property of Tenant. If Landlord consents to the making
of any alterations, additions or improvements to the Premises by Tenant, the
same shall be made by Tenant at Tenant's sole cost and expense and any
contractor or person selected by Tenant to make the same must first be approved
of in writing by Landlord. Upon the expiration or sooner termination of the term
Tenant, upon demand by Landlord, at Tenant's sole cost and expense, forthwith
and with all due diligence shall remove any alterations, additions or
improvements made by Tenant designated by Landlord to be removed, and Tenant,
forthwith and with all due diligence, at its sole cost and expense, shall repair
any damage to the Premises caused by such removal.
12. ABANDONMENT. Tenant shall not vacate or abandon the Premises at any time
during the term hereof, and if Tenant shall abandon, vacate or surrender the
Premises or be dispossessed by process of law, or otherwise, any personal
property belonging to Tenant and left on the Premises shall be deemed to be
abandoned, at the option of Landlord.
13. LIENS. Tenant shall keep the Premises and the building and the land upon
which the building is situated free from any liens arising out of any work
performed, materials furnished or obligations incurred by Tenant. Tenant shall,
in the event of the filing of any such lien, post any bond required to release
the Premises therefrom.
14. ASSIGNMENT AND SUBLETTING.
(A) Tenant shall not mortgage, pledge, hypothecate or encumber this Lease or
any interest therein. Tenant shall not assign this Lease or sublet or suffer any
other person (the agents and servants of Tenant excepted) to occupy or use the
Premises, or any part thereof, or any right or privilege appurtenant thereto
without the prior written consent of Landlord first had and obtained, which
consent shall not be unreasonably withheld. Landlord's consent to one
assignment, subleasing or occupancy shall not be deemed to be a consent to any
subsequent assignment, subleasing or occupancy.
(B) Provided further and notwithstanding anything therein before set forth: In
the event that at any time or from time to time during the term of this Lease,
Tenant desires to sublet all or any part of the Premises, Tenant shall notify
Landlord in writing (the "Sublet Notice") of the terms of the proposed
subletting, and the area so proposed to be sublet and shall give Landlord the
right to sublet from Tenant such space (the "Sublet Space") on the same terms as
those
4
contained in the Sublet Notice. Such option shall be exercisable by Landlord in
writing for a period of thirty (30) days after receipt of the Sublet Notice.
If Landlord fails to exercise its option and Tenant desires to complete the
proposed sublease, Tenant shall deliver an executed copy of such sublease to
Landlord in order to obtain its consent as required in paragraph 14(A) above. If
Landlord consents to a sublease, then such sublease shall be subject to and made
upon the following terms:
(A) Any such sublease shall be subject to the terms of this Lease and the term
thereof may not extend beyond the expiration of the term of this Lease;
(B) No subtenant shall have a right to further sublease its Premises. If
Landlord fails to exercise such option, and Tenant fails to consummate a
sublease with a third party within sixty (60) days after the expiration of
Landlord's option period on the same terms and conditions contained in the
Sublet Notice, Tenant shall be required to deliver a new Sublet Notice to
Landlord and comply with the terms and conditions set forth above before any
further subletting shall be permitted.
(C) Regardless of Landlord's consent, no subletting nor assignment shall
release Tenant of Tenant's obligation or alter the primary liability of Tenant
to pay rent and perform other obligations of Tenant under this lease.
(D) In no event shall Tenant assign this Lease or sublet the Premises or any
portion thereof to any then, existing, or prospective Tenant of said
building.
(E) Tenant shall pay Landlord's reasonable costs incurred in connection with
Tenant's request to assign this lease or sublet the Premises, regardless of
whether or not the Landlord consents to the proposed transfer.
15. INDEMNIFICATION OF LANDLORD. Landlord shall not be liable to Tenant and
Tenant hereby waives all claims against Landlord for any injury or damage to any
person or property in or about the Premises by or from any cause whatsoever and,
without limiting the generality of the foregoing, whether caused by water
leakage of any character from the roof, walls, basement or other portion of the
Premises of said building or any part thereof.
Tenant shall hold Landlord harmless from and indemnify and defend Landlord
against any and all claims or liability for any injury or damage to any person
or property whatsoever: (1) occurring in, on or about the Premises or any part
thereof, and (2) occurring in, on or about any facilities (including without
prejudice to the generality of the term "facilities" elevators, stairways,
passageways or hallways), the use of which Tenant may have in common with other
Tenants of the building, when such injury or damage shall be caused in part or
in whole by the act, neglect, default or omission of any duty with respect to
the same by Tenant, its agents, employees or invitees.
16. INSURANCE. Tenant agrees to keep in force during the term hereof, at
Tenant's expense, public liability and property damage insurance with combined
single limits in the amount of not less than $1,000,000.00 (one million
dollars). Said policy shall name Landlord as an additional insured, and shall
insure Landlord's contingent liability as respects acts, or omissions of Tenant,
shall be issued by an insurance company licensed to do business in the state
where the
5
Premises are located, and shall provide that said insurance shall not be
canceled or amended unless thirty (30) days prior written notice to Landlord is
first given. Said policy or a certificate thereof shall be delivered to Landlord
by Tenant prior to the commencement of the term and each renewal of such
insurance. Tenant hereby waives all rights of subrogation against Landlord to
which any insurance carrier may at any time become entitled under any policy of
insurance carried by Tenant.
17. UTILITIES. Landlord shall furnish to the Premises, during reasonable hours
of generally recognized business days, to be determined by Landlord, and subject
to the rules and regulations of the building, water and electricity suitable for
the use of the Premises for general office purposes and heat required in
Landlord's judgment for the comfortable use and occupation of the Premises for
such purposes, janitorial service, and elevator service. Landlord shall not be
liable for, and Tenant shall not be entitled to any abatement or reduction of
rent by reason if, Landlord's failure to furnish any of the foregoing when such
failure or delay is caused by accident, breakage, repairs, strikes, lockouts or
other labor disturbances or labor disputes of any character, or is caused
directly or indirectly by the limitation, curtailment, rationing or restrictions
on use of water, electricity, gas or any other form of energy serving the
Premises or the building, or by any other cause, similar or dissimilar, beyond
the reasonable control of Landlord. Landlord shall not be liable under any
circumstances for loss of business or injury to property, however occurring,
through or in connection with or incidental to failure to furnish any of the
foregoing. Tenant shall pay and provide for all services and utilities not
furnished by Landlord.
Tenant will not, without the written consent of Landlord, use any apparatus or
device in the Premises which will in any way increase the amount of electricity,
cooling capacity or water usually furnished or supplied for use of the Premises
for general office purposes or connect with electric current, except through
existing electrical outlets in the Premises, or water pipes, any apparatus or
device for the purpose of using electric current or water. If Tenant shall
require water or electric current in excess of that customarily furnished or
supplied to other Tenants of the building for use of their Premises for general
office purposes, Tenant shall first procure the consent of Landlord, which
Landlord may refuse, to the use thereof and Landlord may cause an electric
current or water meter to be installed in the Premises so as to measure the
amount of excess electric current or water consumed by Tenant. The cost of any
such meter and of the installation, maintenance and repair thereof shall be paid
by Tenant and Tenant agrees to pay to Landlord promptly upon demand thereof the
cost of all such excess water and electric current consumed, as shown by said
meters, at the rates charged for such services by the local public utility
furnishing the same, plus any additional expense incurred in keeping account of
the excess electric current or water so consumed.
18. PERSONAL PROPERTY AND OTHER TAXES. 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, including carpeting installed by Tenant even though
said carpeting has become a part of the leased Premises; and any and all taxes
or increases therein levied or assessed on Landlord or Tenant by virtue of
alterations, additions or improvements to the Premises made by Tenant or
Landlord at Tenant's request. In the event said taxes are charged to or paid or
payable by Landlord, Tenant, forthwith upon demand therefore, shall reimburse
Landlord for all of such taxes paid by Landlord.
6
19. RULES AND REGULATIONS. Tenant shall faithfully observe and comply with the
rules and regulations printed on or annexed to this Lease and all modifications
of and additions thereto applicable to all Tenants of the building from time to
time put into effect by Landlord of which Tenant shall have notice. Landlord
shall not be responsible to Tenant for the nonperformance by any other Tenant or
occupant of the building of any of said rules and regulations.
20. HOLDING OVER. If Tenant holds possession of the Premises after the term of
this Lease, Tenant shall, (at option of Landlord to be exercised by Landlord's
giving written notice to Tenant and not otherwise) become a Tenant from month to
month upon the terms and conditions herein specified, so far as applicable, at a
monthly rental of 1.15 x the last month's rent payable in advance, in lawful
money, and shall continue to be such Tenant until thirty (30) days after Tenant
shall have given to Landlord or Landlord shall have given to Tenant a written
notice of intent to terminate such monthly tenancy. Unless Landlord shall
exercise the option hereby given him Tenant shall be a Tenant at sufferance
only, whether or not Landlord shall accept any rent from Tenant is so holding
over.
21. SUBORDINATION. 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 building and/or the land upon which the building is situated and
to the lien of any mortgages or deeds of trust in any amount or amounts
whatsoever now or hereafter placed on or against said building and/or land or on
or against the Landlord's interest or estate therein 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. Tenant hereby irrevocably appoints Landlord the
attorney in fact of Tenant to execute and deliver any such instrument or
instruments for or in the name of Tenant. In the event of termination of any
ground or underlying lease, or in the event of foreclosure or exercise of any
power of sale under any mortgage or deed of trust superior to this Lease or to
which this Lease is subject or subordinate, upon Tenant's attornment to the
lessor under such ground or underlying lease or to the purchaser at any
foreclosure sale or sale pursuant to the exercise of any power of sale under any
mortgage or deed of trust, this Lease shall not terminate and Tenant shall
automatically be and become the Tenant of said Lessor under such ground or
underlying lease or to said purchaser, whichever shall make demand therefore.
22. ENTRY BY LANDLORD. Landlord reserves and shall at any and all reasonable
times have the right to enter the Premises to inspect the same, to supply
janitor service and any other service to be provided by Landlord to Tenant
hereunder, to submit the Premises to prospective purchasers or Tenants, to post
notices of nonresponsibility, and to alter, improve or repair the Premises and
any portion of the building without abatement of rent and may for that purpose
erect scaffolding and other necessary structures where reasonably required by
the character of the work to be performed, always providing the entrance to the
Premises shall not be blocked thereby and further providing that the business of
Tenant shall not be interfered with unreasonably. Tenant hereby waives any claim
for damages for any injury or inconvenience to or interference with Tenant's
business, any loss occasioned by such entry. For each of the aforesaid purposes,
Landlord shall at all times have and retain a key with which to unlock all of
the doors, in, upon and about the Premises excluding Tenant's vaults and safes,
and Landlord
7
shall have the right to use any and all means which Landlord may deem proper to
open said doors in an emergency in order to obtain entry to the Premises, and
any entry to the Premises obtained by Landlord by any of said means, or
otherwise, shall not under any circumstances be construed or deemed to be a
forcible or unlawful entry into or a detainer of the Premises or an eviction of
Tenant from the Premises or any portion thereof.
23. INSOLVENCY OR BANKRUPTCY. Either (a) the appointment of a receiver to take
possession of all or substantially all of the assets of Tenant, (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 reason of voluntary or involuntary bankruptcy proceedings nor
shall any rights or privileges hereunder be an asset of Tenant in any
bankruptcy, insolvency or reorganization proceedings.
24. DEFAULT. In the event of any breach or default of Lease by Tenant, then
Landlord, besides any other rights and remedies of Landlord at law or equity,
shall have the right either to terminate Tenant's right to possession of the
Premises and thereby terminate this Lease or to have this Lease continue in full
force and effect with Tenant at all times having the right to possession of the
Premises. Should Landlord elect to terminate Tenant's right to possession of the
Premises and terminate this Lease, Landlord shall have the immediate right of
entry and may remove all persons and property from the Premises. Such property
so removed may be stored in a public warehouse or elsewhere at the cost and for
the account of Tenant. Upon such termination, Landlord, in addition to any other
rights and remedies (including rights and remedies under Subparagraphs (1), (2)
and (4) of Subdivision (a) of Section 1951.2 of the California Civil Code or any
amendment thereto), shall be entitled to recover from Tenant the worth at the
time of award of the amount by which the unpaid rent for the balance of the term
after the time of award exceeds the amount of such rental loss that the Tenant
proves could be reasonably avoided. The worth at the time of award of the amount
referred to in subparagraphs (1) and (2) of Subdivision (a) of Section 1951.2 of
the California Civil Code shall be computed by allowing interest at the maximum
rate allowed by law. The worth at the time of the award of the amount referred
to in subparagraph (3) of Subdivision 1951.2 of the California Civil Code shall
be computed by discounting such amount at the discount rate of the Federal
Reserve Bank of San Francisco at the time of the award plus 1%.
Any proof by Tenant of the amount of rental loss that could reasonably be
avoided shall be made in the following manner: Landlord and Tenant shall each
select a licensed real estate broker in the business of renting property of the
same type and use as the Premises and in the same geographic vicinity and such
two real estate brokers shall select a third licensed real estate broker and the
three licensed real estate brokers so selected shall determine the amount of
rental loss that could reasonably be avoided for the balance of the term of this
Lease after the time of award. The decision of the majority of said licensed
real estate brokers shall be final and binding upon the parties hereto. Should
Landlord, following any breach or default of 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 that Tenant may have
abandoned the leased Premises), then Landlord, besides the rights and remedies
specified in Section 1951.4 of the California Civil Code and all other rights
and remedies Landlord may have at law or equity, shall have the right to enforce
all of Landlord's rights and remedies under this Lease, including but not
limited to the right to recover the installments of rent as they become due
8
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 said Premises and thereby terminate this Lease
for any previous breach or default which remains uncured, or for any subsequent
breach or default.
25. DAMAGE BY FIRE, ETC. If the Premises are or the building is damaged by
fire or other casualty which is covered by insurance, Landlord shall forthwith
repair the same, provided such repairs can be made within sixty (60) working
days from the date of such damage under the laws and regulations of the state,
federal, county and municipal authorities having jurisdiction thereof, and
this Lease shall remain in full force and effect during the making of such
repairs, except that Tenant shall be entitled to a proportionate reduction of
rent while such repairs are being made if the damage was not attributable to
Tenant's negligent or willful act, such proportionate reduction to be based upon
the full extent to which the making of such repairs shall interfere with the
business carried on by Tenant in the Premises. If such repairs are not covered
by insurance or cannot be made within sixty (60) working days from the date of
such damage, Landlord shall have the option either (1) to repair or restore such
damage, this Lease continuing in full force and effect, but the rent to be
proportionately reduced as herein above in this paragraph provided, or (2) to
give notice to Tenant at any time within thirty (30) working days after the date
of such damage terminating this Lease as of a date to be specified in such
notice, which date shall not be less than thirty (30) nor more than sixty (60)
working days after the giving of such notice. In the event of the giving of such
notice of termination by either Landlord or Tenant, this Lease and all interest
of Tenant in the Premises shall terminate on the date so specified in such
notice, and the rent, reduced by any proportionate reduction based upon the
extent, if any, to which said damage interfered with the business carried on by
Tenant in the Premises, shall be paid up to date of such termination. Landlord
shall not be liable for or be required to repair any injury or damage by fire or
other cause to the property of Tenant, or to make repairs or replacements of any
paneling, decorations, railings, floor coverings or any equipment or
improvements installed on the Premises by Tenant. Tenant hereby waives any
provisions of law automatically terminating this Lease or otherwise contrary to
the provisions of this paragraph in the event of damage to or destruction of the
Premises.
26. EMINENT DOMAIN. If all or any part of the Premises shall be taken or
appropriated by any public or quasi-public authority under the power of eminent
domain, and such taking will substantially impair Tenant's use of the Premises
for more than ninety (90) days, either party hereto shall have the right, at its
option, to terminate this Lease. If all or any part of the building of which the
Premises are a part shall be taken or appropriated by any public or quasi-public
authority under any power of eminent domain, Landlord may terminate this Lease.
In either of such events, Landlord shall be entitled to and Tenant upon demand
of Landlord shall assign to Landlord any rights of Tenant to any and all income,
rent, award, or any interest therein whatsoever which may be paid or made in
connection with such public or quasi-public use or purpose, and Tenant shall
have no claim against Landlord or the condemner for the value of any unexpired
term of this Lease. If a part of the Premises shall be so taken or appropriated
and neither party shall elect to terminate this Lease, the rent thereafter to be
paid shall be equitably reduced.
27. FLATS AND RIDERS. Clauses, plats and riders, if any, signed by Landlord
and Tenant and endorsed on or affixed to this Lease are a part hereof, and in
the event of variation or discrepancy the duplicate original hereof, including
such clauses, plats and riders, if any, held by Landlord shall control.
9
28. SALE BY LANDLORD. In the event of a sale or conveyance by Landlord of the
building, the same shall operate to release 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. If
any security be given by Tenant to secure the faithful performance of all or any
of the covenants of this Lease on the part of Tenant, Landlord may transfer
and/or deliver the security to the successor in interest or Landlord, and
thereupon Landlord shall be discharged from any further liability in reference
thereto. Except as set forth in this Paragraph 28, this Lease shall not be
affected by any such sale or conveyance.
29. ESTOPPEL CERTIFICATES. At any time and from time to time, upon not more
than ten (10) days prior to request by Landlord, Tenant shall execute,
acknowledge and deliver to Landlord a statement certifying the date of
commencement of this Lease, stating that this Lease is unmodified and in full
force and effect (or if there have been modifications, that this Lease is in
full force and effect as modified and the date and nature of such modifications)
and the dates to which the rent has been paid, and setting forth such other
matters as may reasonably be requested by Landlord. Landlord and Tenant intend
that any such statement delivered pursuant to this paragraph may be relied upon
by any mortgagee or the beneficiary of any Deed of Trust or by any purchaser or
prospective purchaser of the building.
30. RIGHT OF LANDLORD TO PERFORM. All covenants and agreements to be kept or
performed by Tenant under any of the terms of this lease shall be performed by
Tenant at Tenant's sole cost and expense and without any abatement of rent. If
Tenant shall fail to pay any sum of money, other than rent, required to be paid
by it hereunder or shall fail to perform any other act on its part to be
performed hereunder, and such failure shall continue for ten (10) days after
notice thereof by Landlord, Landlord may, but shall not be obligated to, and
without waiving any default of Tenant or releasing Tenant from any obligations
of Tenant hereunder, make any such payment or perform any such other act on
Tenant's part to be made or performed as in this Lease provided. All sums so
paid by the Landlord and all necessary incidental costs, together with interest
thereon at the rate of ten percent (10%) per annum from the date of such payment
by the Landlord, shall be paid to Landlord forthwith on demand, and Landlord
shall have (in addition to any other right or remedy of Landlord) the same
rights and remedies in the event of nonpayment thereof by Tenant as in the case
of default in payment of rent.
31. ATTORNEY FEES. If either Landlord or Tenant shall obtain legal counsel or
bring an action against the other by reason of the breach of any covenant or
warranty hereof, or otherwise arising out of this lease, the unsuccessful party
shall pay to the prevailing party reasonable attorney's fees, which shall be
payable whether or not any action is prosecuted to judgment. The term
"prevailing party" shall include, without limitation, a party who obtains legal
counsel or brings an action against the other by reason of the other's breach or
default and obtains substantially the relief sought, whether by compromise,
settlement or judgment.
32. SURRENDER OF PREMISES. The voluntary or other surrender of this Lease by
Tenant or mutual cancellation thereof shall not work a merger and, at the option
of Landlord, shall terminate all or any existing subleases or subtenancies, or
at the option of Landlord, may operate as an assignment to Landlord of any or
all such subleases or subtenancies.
10
33. WAIVER. The waiver by Landlord or Tenant of performance of any term,
covenant or condition herein contained shall not be deemed to be a waiver of
such term, covenant or condition or any subsequent breach of the same or any
other term, covenant or condition herein contained. The subsequent acceptance of
rent hereunder by Landlord shall not be deemed to be a waiver of any preceding
breach by Tenant of any term, covenant or condition of this Lease, other than
the failure of Tenant to pay the particular rent so accepted, regardless of
Landlord's knowledge of such preceding breach at the time of acceptance of such
rent.
34. NOTICES. All notices and demands which may or are required to be given by
either party to the other hereunder shall be in writing. All notices and demands
by Landlord to Tenant shall be delivered personally or sent by United States
certified or registered mail, postage prepaid, addressed to Tenant at the
Premises, or to such other such place as Tenant may from time to time by like
notice designate. All notices and demands by Tenant to Landlord shall be sent by
United States certified or registered mail, postage prepaid, addressed to
Landlord at 000 Xxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx, 00000 or to
----------------------------------------------------------
other such place as Landlord may from time to time by like notice designate.
35. NOTICE OF SURRENDER. At least ninety (90) days before the last day of the
term hereof, Tenant shall give to Landlord a written notice of intention to
surrender the Premises on that date, but nothing contained herein or any failure
to give such notice shall be construed as an extension of the term hereof or as
consent of Landlord to any holding over by Tenant.
36. DEFINED TERMS AND MARGINAL HEADINGS. The words "Landlord" and "Tenant" as
used herein shall include the plural as well as the singular. Words used in
masculine gender include the feminine and neuter. If there be more than one
Tenant, the obligations hereunder imposed upon Tenant shall be joint and
several. The marginal headings and titles to the paragraphs of the Lease are not
a part of this Lease and shall have no effect upon the construction or
interpretation of any part hereof.
37. TIME AND APPLICABLE LAW. Time is of the essence of this Lease and each and
all of its provisions. This Lease shall in all respects be governed by the laws
of the state in which the Premises are located.
38. SUCCESSORS. Subject to the provisions of Paragraph 14 hereof, the
covenants and conditions herein contained shall be binding upon and inure to the
benefits of the heirs, successors, executors, administrators and assigns of the
parties hereto.
39. ENTIRE AGREEMENT. This Lease constitutes the entire agreement between
Landlord and Tenant and no promises or representations, express or implied,
either written or oral, not herein set forth shall be binding upon or inure to
the benefit of Landlord or Tenant. This Lease shall not be modified by any oral
agreement, either express or implied, and all modifications hereof shall be in
writing and signed by both Landlord and Tenant.
40. LATE CHARGE. In the event Tenant shall fail to pay any rents or sums due
hereunder on or before the due date herein provided, then and in that event the
amount so due and unpaid shall bear a late charge equal to five percent (5%) of
the amount due together with interest accruing from the date due at the maximum
interest rate permitted by law, which late charge and interest shall be payable
forthwith upon demand. (The foregoing shall be in addition to any other right or
remedy of Landlord.)
11
41. ADDITIONAL PROVISIONS. The exhibits and addenda listed below are
incorporated by reference in this Lease:
Exhibit A and Rules and Regulations
42. Tenant will take the space "as is".
IN WITNESS WHEREOF Landlord and Tenant have executed this lease the day and year
first above written.
"Landlord" "Tenant"
ROSJAN LIMITED PARTNERSHIP INFOSPACE, INC.
By: Xxxxxxx-Xxxxxx Management Group By: /s/ Xxxx X. Xxxxxxxx
------------------------
Its Managing Agent Xxxx X. Xxxxxxxx
By:_____________________________ Its: VP FINANCE
Xxxx X. Xxxxxx
Date: 3/1/98
Its:____________________________
Date:___________________________
12
RULES AND REGULATIONS FOR THE BUILDING
ATTACHED TO AND MADE A PART OF THIS LEASE
1. Except as provided or required by Landlord in accordance with building
standards, no sign, placard, picture, advertisement, name or notice shall be
inscribed, displayed, printed, painted or affixed by Tenant on or to any part of
the building or exterior of the Premises leased to Tenants or to the door or
doors thereof without the written consent of Landlord first obtained and
Landlord shall have the right to remove any such sign, placard, picture,
advertisement, name or notice without notice to and at the expense of Tenant.
2. Except as provided or required by Landlord in accordance with building
standards, no draperies, curtains, blinds, shades, screens or other devices
shall be hung at or used in connection with any window or exterior door of the
Premises.
3. The bulletin board or directory of the building shall be used primarily for
display of the name and location of Tenants and Landlord reserves the right to
exclude any other names therefrom, to limit the number of names associated with
Tenants to be placed thereon and to charge for names associated with Tenants to
be placed thereon at rates applicable to Tenants.
4. The sidewalks, halls, passages, exits, entrances, elevators and stairways of
the building shall not be obstructed by Tenants or used by them for any purpose
other than for ingress to and egress from their respective Premises. The halls,
passages, exits, entrances, elevators, stairways, balconies and roof of the
building are not for the use of the general public and Landlord in all cases
reserves the right to control the same and prevent access thereto by all persons
whose presence, in the judgment of the Landlord, is or may be prejudicial to the
safety, character, reputation or interests of the building and its Tenants;
provided however, that Landlord shall not prevent such access to persons with
whom Tenants deal in the ordinary course of business unless such persons are
engaged in illegal activities. No person shall go upon the roof of the building
unless expressly so authorized by Landlord.
5. Tenants shall not alter any lock nor install any new or additional locks or
any bolts on any interior or exterior door of any Premises leased to Tenant.
6. The doors, windows, light fixtures and any lights or skylights that reflect
or admit light into halls or other places of the building shall not be covered
or obstructed. The toilet rooms, toilets, urinals, wash bowls and other
apparatus shall not be used for any purpose other than that for which they were
constructed and no foreign substance of any kind whatsoever shall be thrown or
placed therein. The expense of any breakage, stoppage or damage resulting from
the violation of this rule shall be borne by the Tenant who, or whose employees
or invitees, cause such expense.
7. Tenants shall not xxxx, drive nails, screw or drill into the walls, woodwork
or plaster or in any way deface the building or any Premises leased except for
supporting partitions, pictures, paintings, and other similar solely decorative
items.
8. Furniture, freight or equipment of every kind shall be moved into or out of
the building only at such times and in such manner as Landlord shall designate.
Landlord may prescribe and limit the weight, size and position of all equipment
to be used by Tenants, other than standard office desks, chairs and tables and
portable office machines. Safes and other heavy equipment
13
shall, if considered necessary by Landlord, stand on wood strips of such
thickness as Landlord deems necessary to distribute properly the weight thereof.
All damage to the building or Premises occupied by Tenants caused by moving or
maintaining any property of a Tenant shall be repaired at the expense of such
Tenant.
9. No Tenant shall employ any person, other than the janitor provided by
Landlord, for the purposes of cleaning the Premises occupied by such Tenant
unless otherwise agreed to by Landlord. Except with the written consent of
Landlord, no person shall be permitted to enter the building for the purpose of
cleaning the same. Tenants shall not cause any unnecessary labor by carelessness
or indifference in the preservation of good order and cleanliness. Landlord
shall not be responsible to any Tenant for loss of property on the Premises,
however occurring, or for any damage to the property of any Tenant caused by the
employees or independent contractors of Landlord or by any other person. Janitor
service will not be furnished when rooms are occupied during the regular hours
when janitor service is provided. Window cleaning shall be done only at the
regular and customary times determined by Landlord for such services.
10. No Tenant shall sweep or throw or permit to be swept or thrown any dirt or
other substance into any of the corridors, halls or elevators or out of the
doors or stairways of the building; use or keep or permit to be used or kept any
foul or noxious gas or substance; permit or suffer the Premises occupied by such
Tenant to be occupied or used in a manner offensive or objectionable to Landlord
or other Tenants by reason of noise, odors or vibrations; interfere in any way
with other Tenants or persons having business in the building; or bring or keep
or permit to be brought or kept in the building any animal life form, other than
human, except seeing eye dogs when in the company of their masters.
11. No cooking shall be done or permitted by Tenants in their respective
Premises except making coffee and microwave cooking, nor shall Premises occupied
by Tenants be used for the storage of merchandise, washing clothes, lodging, or
any improper, objectionable or immoral purposes.
12. No Tenant shall use or keep in the building any kerosene, gasoline or
inflammable or combustible fluid or material or use any method of heating or
air-conditioning other than such as be supplied by Landlord.
13. No boring or cutting for telephone or electric wires shall be allowed
without the consent of Landlord and any such wires permitted shall be introduced
at the place and in the manner described by Landlord. The location of
telephones, speakers, fire extinguisher and all other office equipment affixed
to Premises occupied by Tenants shall be subject to the approval of Landlord.
Each Tenant shall pay all expenses incurred in connection with the installation
of its equipment, including any telephone and electricity distribution
equipment.
14. Upon termination of occupancy of the building, each Tenant shall deliver to
Landlord all keys furnished by Landlord, and any reproductions thereof made by
or at the direction of such Tenant, and in the event of loss of any keys
furnished shall pay Landlord therefore.
15. No Tenant shall affix any floor covering in any manner except as approved
by Landlord. The expense of repairing any damage caused by removal of any such
floor covering shall be borne by the Tenant by whom or by whose contractors,
employees or invitees, the damage
14
shall have been caused.
16. On Sundays and legal holidays and between the hours of 6:00 p.m. and 8:00
a.m., access to the building may be refused unless the person seeking access is
known to the person charged with responsibility for the safety and protection of
the building and has a pass or is properly identified. In no case shall Landlord
be liable for any loss or damage for any error with respect to the admission to
or exclusion from the building of any person. In case of invasion, mob, riot,
public excitement or other commotion and at such times as Landlord deems
necessary for the safety and protection of the building, its Tenants and all
property located therein, Landlord may prohibit and prevent access to the
building by all persons by any means Landlord deems appropriate.
17. Each Tenant shall see that the exterior doors of its Premises are closed
and securely locked on Sundays and legal holidays and not later than 6:00 p.m.
of each other day. Each Tenant shall exercise extraordinary care and caution
that all water faucets or water apparatus are entirely shut off each day before
its Premises are left unoccupied and that all electricity or gas shall likewise
be carefully shut off so as to prevent waste or damage to Landlord or to other
Tenants of the building.
18. Landlord may exclude or expel from the building any person who, in the
judgment of Landlord, is intoxicated or under the influence of liquor or drugs,
or who shall in any manner do any act in violation of any of the rules and
regulations of the building.
19. The requirements of Tenants will be attended to only upon application to
Landlord at the office of the building. Employees of Landlord shall not perform
any work outside of their regular duties unless under special instructions from
Landlord, and no employee of Landlord shall be required to admit any person
(Tenant or otherwise) to any Premises in the building.
20. No vending or food or beverage dispensing machine or machines of any
description shall be installed, maintained or operated upon any premise in the
building without the written permission of the Landlord.
21. Landlord, without notice and without liability to any Tenant, at any time
may change the name or the street address of the building.
22. The word "building" as used in these rules and regulations means the
building of which a part of the Premises are leased pursuant to the Lease to
which these rules and regulations are attached. Each Tenant shall be liable to
Landlord and to each other Tenant of the building for any loss, cost, expense,
damage or liability, including attorneys' fees, caused or occasioned by the
failure of such first named Tenant to comply with these rules, but Landlord
shall have no liability for such failure of for failing or being unable to
enforce compliance therewith by any Tenant and such failure by Landlord or non-
compliance by any other Tenant shall not be a ground for termination of the
lease to which these rules and regulations are attached by the Tenant
thereunder.
23. Carpet protector pads shall be used by all desk stations.
24. The HVAC is in operation from 8:00 a.m. to 6:00 p.m. Monday to Friday
except public Holidays.
15
[FLOOR PLAN APPEARS HERE]
16
OFFICE LEASE
PARTIES. This lease, made this 10th day of March between ROSJAN LIMITED
PARTNERSHIP and Infospace, Inc., Tenant.
WITNESSETH:
1. PREMISES. Landlord hereby leases to Tenant and Tenant hereby hires from
Landlord those certain Premises (hereinafter called "Premises") outlined in red
on Exhibit A attached hereto and by this reference made a part hereof, said
Premises being situated on the ground floor, Suite 163 of that certain building
(hereinafter called "Building") known as 000 Xxxxxx Xxxxxx, Xxx Xxxxx,
-----------------------------
California.
-----------
Said letting and hiring is upon and subject to the terms, covenants and
conditions herein set forth and Tenant covenants as a material part of the
consideration for, this Lease to keep and perform each and all of said terms,
covenants and conditions by it to be kept and performed and that this Lease is
made upon the condition of such performance.
2. PURPOSE. The Premises shall be used for general office purposes and for no
other use or purpose without the prior written consent of Landlord.
3. TERM. The term of this Lease shall be for twenty-eight (28) months
commencing on the 1st day of March, 1998, (the "Lease Term"), ending on the 30th
day of June, 2000.
4. POSSESSION. If Landlord, for any reason whatsoever, cannot deliver
possession of the said Premises to Tenant at the commencement of the term
hereof, this Lease shall be void or voidable, nor shall Landlord be liable for
any loss or damage resulting therefrom, but in that event there shall be
proportionate reduction of rent covering the period between the commencement of
the said term and the time when Landlord can deliver possession. If possession
of the Premises is not delivered to Tenant within six months from the scheduled
commencement date, this Lease will terminate. Should Landlord tender possession
of the Premises to Tenant prior to the date specified for the commencement of
the term, and Tenant accepts such prior tender, such prior occupancy shall be
subject to all terms, covenants and conditions of this Lease, including the
payment of rent.
5. RENT. On or before the first day of each calendar month during the term
hereof, Tenant shall pay to Landlord, as minimum monthly rent for the Premises,
the sum of $1,579.90. The minimum monthly rent for any partial month shall be
pro-rated at the rate of 1/30 of the minimum monthly rent per day. Said rent
shall be paid by Tenant to Landlord, in advance, without deduction or offset, in
lawful money of the United States of America at 000 Xxxxxx Xxxxxx, Xxxxx 000,
-----------------------------
San Mateo, California, or to such other person or at such place as Landlord may
----------------------
from time to time designate writing. The minimum monthly rent for the
premises shall increase as stated below:
March 1, 1998 through June 30, 1999 - $1,579.90 per month
July 1, 1999 through June 30, 2000 - $1,622.60 per month
1
6. RENTAL ADJUSTMENT.
(A) In addition to the monthly rent provided for in Paragraph 5 hereof, Tenant
shall pay to Landlord the sums set forth in the following subparagraphs.
Tenant's percentage share as set forth below has been calculated by dividing the
number of square feet of rentable area in the Premises by the number of square
feet rentable in the building. In the event the rentable area of the building is
changed, the Tenant's percentage share shall be appropriately adjusted. Rentable
area shall be based upon the Building Owners and Managers Association
International (BOMAI) standard method of floor measurement for office buildings.
Tenant hereby approves and accepts Landlord's calculation of Tenant's current
percentage share as set forth below.
(B) Tax Increases and Assessments. Tenant shall pay to Landlord an amount equal
to 1.21% of any increase in real property taxes and assessments or other fees or
charges of whatsoever kind or character imposed by a governmental agency which
may be levied on the land and building of which the Premises are a part and
personal property taxes levied on personal property of Landlord used in the
operation of said land and building above the amount of such taxes levied and
assessed for the fiscal tax year ending 1998, either by way of increase in the
rate or in the assessed valuation of said land and building or by imposition of
any such charges by ordinance or statute of any authority having jurisdiction.
For the purposes of the Subparagraph (A), real and personal property taxes shall
include, without limitation, taxes of every kind and nature levied and assessed
in lieu of or in substitution for existing or additional real or personal
property taxes on said land and building as well as any form of assessment,
license, fee, levy, penalty, or tax (other than inheritance or state taxes),
imposed by any authority having the direct or indirect power to tax, including
any city, county, state, or federal government, or any school, Agricultural,
lighting, drainage, or other improvement district, as against any legal or
equitable interest of Landlord in the Premises or in the real property of which
the Premises are a part, or as against Landlord's right to rent or other income
therefrom, or as against Landlord's business of leasing the Premises, and
including any and all charges which may be charged by the environmental
protection agency or other similar governmental regulatory agency or authority.
In addition, Tenant shall pay one hundred percent (100%) of any increase in
taxes or assessments of whatsoever kind and nature (including, without
limitation, all personal property taxes) caused by improvements or installations
made by Tenant to the Premises at any time during the term hereof. The total
amounts due hereunder shall be paid to Landlord on or before the date full
payment of such taxes or assessments or, if payable in installments, the date
payment of the first installment of such taxes or assessments shall become due.
In the event said taxes or assessments are charged to or paid or payable by
Landlord, Tenant forthwith upon demand therefore, shall reimburse Landlord for
all amounts of such taxes or assessments chargeable against Tenant pursuant to
this subparagraph (B) and paid by Landlord.
(C) Operating Expense Increases. Tenant shall pay to Landlord, at the times
hereinafter set forth, an amount equal to 1.21% of any increase in direct
expenses paid or incurred by Landlord on account of the operation or maintenance
of the building above such direct expenses paid or incurred by Landlord during
the Base Year. "Base Year" as used in this subparagraph (c) shall mean the
calendar year 1998. "Direct expenses" as used herein shall include all direct
costs of operation and maintenance as determined by standard accounting
practices as set forth in the Building Owners and Managers Association
International (BOMAI) chart of accounts from time to time (excluding, however,
any and all taxes of the nature set forth in subparagraph (B)
2
above) and shall include the following by way of illustration but not
limitation; the cost of contesting by appropriate proceeding the amount or the
validity of any of the aforementioned taxes or fees; water and sewer charges;
insurance premiums; license, permit and inspection fees; charges for heat,
light, power and steam; janitorial services; labor; supplies; materials,
equipment and tools; and management fees. "Direct expenses" as used herein shall
not include depreciation on the building or equipment therein, interest, or real
estate broker's commissions.
Statements of the amount of direct expenses for the preceding calendar year and
the amount of such increase payable by Tenant shall be determined or estimated
by Landlord shall be given to Tenant on such date as Landlord shall from time to
time determine. All amounts payable by Tenant as shown on said statement shall
be paid by Tenant within the time required by said statement. If during any such
year Landlord shall revise its estimate of Tenant's share of said expenses for
said year, Landlord shall advise Tenant and commencing on the next date payment
of additional charges are due, Tenant shall pay all additional charges based on
such revised estimate for the portion of the year already elapsed and shall
commence paying the additional charges based on such revised estimate for the
remainder of such year.
7. SECURITY. Simultaneously with the execution of this Lease, Tenant shall
deposit with Landlord the sum of $3,159.80 of which sum $1,579.90 shall be
payment of the March 1998 rent and the balance thereof, namely $1,579.90 shall
be held by Landlord as security for the faithful performance by Tenant of all
the terms, covenants and conditions of this lease. Provided that at the end of
the term Tenant shall have delivered up the Premises to Landlord, broom clean,
and in the same condition as at the commencement date, reasonable wear excepted,
said sum held as security shall be returned to Tenant. No interest shall be
payable thereon and Landlord shall not be required to keep said sum in a
separate account. No security or guaranty which may now or hereafter be
furnished Landlord for the payment of the rent herein reserved or for
performance by Tenant of the other covenants or conditions of this Lease shall
in any way be a 6; or defense to any action in unlawful detainer, or for the
recovery of the Premises, or to any action which Landlord may at any time
commence for a breach of any of the covenants or conditions of this Lease.
8. USES PROHIBITED. 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 rate of or affect any fire or other insurance upon the building or
any of its contents or cause a cancellation of any insurance policy covering
said building or 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 or injure or annoy them, or
use or allow the Premises to be used for any residential, immoral, unlawful, or
objectionable purpose, nor shall Tenant cause, maintain, or permit any nuisance
in, on or about the Premises. No cooking devices or other odor-causing devices,
loudspeakers or other similar device, system or apparatus which can be heard or
experienced outside the Premises shall, without the prior written approval of
Landlord, be used in or at the Premises. Tenant shall not commit or suffer to be
committed any waste in or upon the Premises.
9. COMPLIANCE WITH LAW. Tenant shall not use or permit anything to be done in
or about the Premises which will in any way conflict with any law, statute,
ordinance or governmental rule, regulation or requirement now in force or which
may hereafter be enacted or promulgated. Tenant, at its sole cost and expense,
shall promptly comply with all laws, statutes, ordinances
3
and governmental rules, regulations or requirements now in force or which may
hereafterbe in force and with the requirements of any board of fire
underwriters or other similar body now or hereafter constituted relating to or
affecting the condition, use of occupancy of the Premises, excluding structural
changes not related to or affected by Tenant's improvements or acts. The
judgment of any court of competent jurisdiction or the admission of Tenant in an
action against Tenant, whether Landlord be a party thereto or not, that Tenant
has violated any law, statute, ordinance or governmental rule, regulation or
requirement shall be conclusive of that fact as between Landlord and Tenant.
10. ALTERATIONS. Tenant shall not make or suffer to be made any alterations,
additions or improvements to or of the Premises or any part thereof without the
written consent of Landlord first had and obtained. Any alterations, additions,
or improvements to or of said Premises, including without limitation any
partitions, movable or otherwise, and all carpeting, shall at once become a part
of the realty and belong to Landlord. Movable furniture, equipment and trade
fixtures shall remain the property of Tenant. If Landlord consents to the making
of any alterations, additions or improvements to the Premises by Tenant, the
same shall be made by Tenant at Tenant's sole cost and expense and any
contractor or person selected by Tenant to make the same must first be approved
of in writing by Landlord. Upon the expiration or sooner termination of the term
Tenant, upon demand by Landlord, at Tenant's sole cost and expense, forthwith
and with all due diligence shall remove any alterations, additions or
improvements made by Tenant designated by Landlord to be removed, and Tenant,
forthwith and with all due diligence, at its sole cost and expense, shall repair
any damage to the Premises caused by such removal.
12. ABANDONMENT. Tenant shall not vacate or abandon the Premises at any time
during the term hereof, and if Tenant shall abandon, vacate or surrender the
Premises or be dispossessed by process of law, or otherwise, any personal
property belonging to Tenant and left on the Premises shall be deemed to be
abandoned, at the option of Landlord.
13. LIENS. Tenant shall keep the Premises and the building and the land upon
which the building is situated free from any liens arising out of any work
performed, materials furnished or obligations incurred by Tenant. Tenant shall,
in the event of the filing of any such lien, post any bond required to release
the Premises therefrom.
14. ASSIGNMENT AND SUBLETTING.
(A) Tenant shall not mortgage, pledge, hypothecate or encumber this Lease or
any interest therein. Tenant shall not assign this Lease or sublet or suffer any
other person (the agents and servants of Tenant excepted) to occupy or use the
Premises, or any part thereof, or any right or privilege appurtenant thereto
without the prior written consent of Landlord first had and obtained, which
consent shall not be unreasonably withheld. Landlord's consent to one
assignment, subleasing or occupancy shall not be deemed to be a consent to any
subsequent assignment, subleasing or occupancy.
(B) Provided further and notwithstanding anything therein before set forth: In
the event that at any time or from time to time during the term of this Lease,
Tenant desires to sublet all or any part of the Premises, Tenant shall notify
Landlord in writing (the "Sublet Notice") of the terms of the proposed
subletting, and the area so proposed to be sublet and shall give Landlord the
right to sublet from Tenant such space (the "Sublet Space") on the same terms as
those
4
contained in the Sublet Notice. Such option shall be exercisable by Landlord in
writing for a period of thirty (30) days after receipt of the Sublet Notice.
If Landlord fails to exercise its option and Tenant desires to complete the
proposed sublease, Tenant shall deliver an executed copy of such sublease to
Landlord in order to obtain its consent as required in paragraph 14(A) above. If
Landlord consents to a sublease, then such sublease shall be subject to and made
upon the following terms:
(A) Any such sublease shall be subject to the terms of this Lease and the term
thereof may not extend beyond the expiration of the term of this Lease;
(B) No subtenant shall have a right to further sublease its Premises. If
Landlord fails to exercise such option, and Tenant fails to consummate a
sublease with a third party within sixty (60) days after the expiration of
Landlord's option period on the same terms and conditions contained in the
Sublet Notice, Tenant shall be required to deliver a new Sublet Notice to
Landlord and comply with the terms and conditions set forth above before any
further subletting shall be permitted.
(C) Regardless of Landlord's consent, no subletting nor assignment shall
release Tenant of Tenant's obligation or alter the primary liability of Tenant
to pay rent and perform other obligations of Tenant under this lease.
(D) In no event shall Tenant assign this Lease or sublet the Premises or any
portion thereof to any then, existing, or prospective Tenant of said building.
(E) Tenant shall pay Landlord's reasonable costs incurred in connection with
Tenant's request to assign this lease or sublet the Premises, regardless of
whether or not the Landlord consents to the proposed transfer.
15. INDEMNIFICATION OF LANDLORD. Landlord shall not be liable to Tenant and
Tenant hereby waives all claims against Landlord for any injury or damage to any
person or property in or about the Premises by or from any cause whatsoever and,
without limiting the generality of the foregoing, whether caused by water
leakage of any character from the roof, walls, basement or other portion of the
Premises of said building or any part thereof.
Tenant shall hold Landlord harmless from and indemnify and defend Landlord
against any and all claims or liability for any injury or damage to any person
or property whatsoever: (1) occurring in, on or about the Premises or any part
thereof, and (2) occurring in, on or about any facilities (including without
prejudice to the generality of the term "facilities" elevators, stairways,
passageways or hallways), the use of which Tenant may have in common with other
Tenants of the building, when such injury or damage shall be caused in part or
in whole by the act, neglect, default or omission of any duty with respect to
the same by Tenant, its agents, employees or invitees.
16. INSURANCE. Tenant agrees to keep in force during the term hereof, at
Tenant's expense, public liability and property damage insurance with combined
single limits in the amount of not less than $1,000,000.00 (one million
dollars). Said policy shall name Landlord as an additional insured, and shall
insure Landlord's contingent liability as respects acts, or omissions of Tenant,
shall be issued by an insurance company licensed to do business in the state
where the
5
Premises are located, and shall provide that said insurance shall not be
canceled or amended unless thirty (30) days prior written notice to Landlord is
first given. Said policy or a certificate thereof shall be delivered to Landlord
by Tenant prior to the commencement of the term and each renewal of such
insurance. Tenant hereby waives all rights of subrogation against Landlord to
which any insurance carrier may at any time become entitled under any policy of
insurance carried by Tenant.
17. MAINTENANCE AND UTILITIES. Tenant shall keep in good order and repair the
Premises and every part thereof, structural and non-structural, (whether or not
such portion of the premises requiring repair, or the mean for repairing the
same are reasonably or readily accessible to Tenant, and whether or not the need
for such repairs occurs as a result of the Tenant's use, any prior use, the
elements or the age of such portion of the Premises) including, without limiting
the generality of the foregoing, all plumbing, heating, air conditioning,
ventilating, electrical lighting facilities and equipment, telecommunications
equipment within the Premises, fixtures, walls (interior and exterior)
foundations, ceilings, roofs (interior and exterior) floors, windows, doors,
plate glass and skylights located within the Premises, and all landscaping,
driveways, parking lots, fences and signs located on the premises and sidewalks
and parkways adjacent to the Premises. Tenant will be responsible costs for
utilities to include electricity, gas and water and janitorial service for the
Premises, installing meters if required. Landlord shall not be liable for, and
Tenant shall not be entitled to any abatement or reduction of rent by reason if,
Landlord's failure to furnish any of the foregoing when such failure or delay is
caused by accident, breakage, repairs, strikes, lockouts or other labor
disturbances or labor disputes of any character, or is caused directly or
indirectly by the limitation, curtailment, rationing or restrictions on use of
water, electricity, gas or any other form of energy serving the Premises or the
building, or by any other cause, similar or dissimilar, beyond the reasonable
control of Landlord. Landlord shall not be liable under any circumstances for
loss of business or injury to property, however occurring, through or in
connection with or incidental to failure to furnish any of the foregoing. Tenant
shall pay and provide for all services and utilities not furnished by Landlord.
Tenant will not, without the written consent of Landlord, use any apparatus or
device in the Premises which will in any way increase the amount of electricity,
cooling capacity or water usually furnished or supplied for use of the Premises
for general office purposes or connect with electric current, except through
existing electrical outlets in the Premises, or water pipes, any apparatus or
device for the purpose of using electric current or water. If Tenant shall
require water or electric current in excess of that customarily furnished or
supplied to other Tenants of the building for use of their Premises for general
office purposes, Tenant shall first procure the consent of Landlord, which
Landlord may refuse, to the use thereof and Landlord may cause an electric
current or water meter to be installed in the Premises so as to measure the
amount of excess electric current or water consumed by Tenant. The cost of any
such meter and of the installation, maintenance and repair thereof shall be paid
by Tenant and Tenant agrees to pay to Landlord promptly upon demand thereof the
cost of all such excess water and electric current consumed, as shown by said
meters, at the rates charged for such services by the local public utility
furnishing the same, plus any additional expense incurred in keeping account of
the excess electric current or water so consumed.
18. PERSONAL PROPERTY AND OTHER TAXES. 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,
6
including carpeting installed by Tenant even though said carpeting has become a
part of the leased Premises; and any and all taxes or increases therein levied
or assessed on Landlord or Tenant by virtue of alterations, additions or
improvements to the Premises made by Tenant or Landlord at Tenant's request. In
the event said taxes are charged to or paid or payable by Landlord, Tenant,
forthwith upon demand therefore, shall reimburse Landlord for all of such taxes
paid by Landlord.
19. RULES AND REGULATIONS. Tenant shall faithfully observe and comply with the
rules and regulations printed on or annexed to this Lease and all modifications
of and additions thereto applicable to all Tenants of the building from time to
time put into effect by Landlord of which Tenant shall have notice. Landlord
shall not be responsible to Tenant for the nonperformance by any other Tenant or
occupant of the building of any of said rules and regulations.
20. HOLDING OVER. If Tenant holds possession of the Premises after the term of
this Lease, Tenant shall, (at option of Landlord to be exercised by Landlord's
giving written notice to Tenant and not otherwise) become a Tenant from month
to month upon the terms and conditions herein specified, so far as applicable,
at a monthly rental of 1.15 x the last month's rent payable in advance, in
lawful money, and shall continue to be such Tenant until thirty (30) days after
Tenant shall have given to Landlord or Landlord shall have given to Tenant a
written notice of intent to terminate such monthly tenancy. Unless Landlord
shall exercise the option hereby given him Tenant shall be a Tenant at
sufferance only, whether or not Landlord shall accept any rent from Tenant is so
holding over.
21. SUBORDINATION. 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 building and/or the land upon which the building is situated and
to the lien of any mortgages or deeds of trust in any amount or amounts
whatsoever now or hereafter placed on or against said building and/or land or on
or against the Landlord's interest or estate therein 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. Tenant hereby irrevocably appoints Landlord the
attorney in fact of Tenant to execute and deliver any such instrument or
instruments for or in the name of Tenant. In the event of termination of any
ground or underlying lease, or in the event of foreclosure or exercise of any
power of sale under any mortgage or deed of trust superior to this Lease or to
which this Lease is subject or subordinate, upon Tenant's attornment to the
lessor under such ground or underlying lease or to the purchaser at any
foreclosure sale or sale pursuant to the exercise of any power of sale under any
mortgage or deed of trust, this Lease shall not terminate and Tenant shall
automatically be and become the Tenant of said Lessor under such ground or
underlying lease or to said purchaser, whichever shall make demand therefore.
22. ENTRY BY LANDLORD. Landlord reserves and shall at any and all reasonable
times have the right to enter the Premises to inspect the same, to supply
janitor service and any other service to be provided by Landlord to Tenant
hereunder, to submit the Premises to prospective purchasers or Tenants, to post
notices of nonresponsibility, and to alter, improve or repair the Premises and
any portion of the building without abatement of rent and may for that purpose
7
erect scaffolding and other necessary structures where reasonably required by
the character of the work to be performed, always providing the entrance to the
Premises shall not be blocked thereby and further providing that the business of
Tenant shall not be interfered with unreasonably. Tenant hereby waives any claim
for damages for any injury or inconvenience to or interference with Tenant's
business, any loss occasioned by such entry. For each of the aforesaid purposes,
Landlord shall at all times have and retain a key with which to unlock all of
the doors, in, upon and about the Premises excluding Tenant's vaults and safes,
and Landlord shall have the right to use any and all means which Landlord may
deem proper to open said doors in an emergency in order to obtain entry to the
Premises, and any entry to the Premises obtained by Landlord by any of said
means, or otherwise, shall not under any circumstances be construed or deemed to
be a forcible or unlawful entry into or a detainer of the Premises or an
eviction of Tenant from the Premises or any portion thereof.
23. INSOLVENCY OR BANKRUPTCY. Either (a) the appointment of a receiver to take
possession of all or substantially all of the assets of Tenant, (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 reason of voluntary or involuntary bankruptcy proceedings nor
shall any rights or privileges hereunder be an asset of Tenant in any
bankruptcy, insolvency or reorganization proceedings.
24. DEFAULT. In the event of any breach or default of Lease by Tenant, then
Landlord, besides any other rights and remedies of Landlord at law or equity,
shall have the right either to terminate Tenant's right to possession of the
Premises and thereby terminate this Lease or to have this Lease continue in full
force and effect with Tenant at all times having the right to possession of the
Premises. Should Landlord elect to terminate Tenant's right to possession of the
Premises and terminate this Lease, Landlord shall have the immediate right of
entry and may remove all persons and property from the Premises. Such property
so removed may be stored in a public warehouse or elsewhere at the cost and for
the account of Tenant. Upon such termination, Landlord, in addition to any other
rights and remedies (including rights and remedies under Subparagraphs (1), (2)
and (4) of Subdivision (a) of Section 1951.2 of the California Civil Code or any
amendment thereto), shall be entitled to recover from Tenant the worth at the
time of award of the amount by which the unpaid rent for the balance of the term
after the time of award exceeds the amount of such rental loss that the Tenant
proves could be reasonably avoided. The worth at the time of award of the amount
referred to in subparagraphs (1) and (2) of Subdivision (a) of Section 1951.2 of
the California Civil Code shall be computed by allowing interest at the maximum
rate allowed by law. The worth at the time of the award of the amount referred
to in subparagraph (3) of Subdivision 1951.2 of the California Civil Code shall
be computed by discounting such amount at the discount rate of the Federal
Reserve Bank of San Francisco at the time of the award plus 1%.
Any proof by Tenant of the amount of rental loss that could reasonably be
avoided shall be made in the following manner: Landlord and Tenant shall each
select a licensed real estate broker in the business of renting property of the
same type and use as the Premises and in the same geographic vicinity and such
two real estate brokers shall select a third licensed real estate broker and the
three licensed real estate brokers so selected shall determine the amount of
rental loss that could reasonably be avoided for the balance of the term of this
Lease after the time of award. The decision of the majority of said licensed
real estate brokers shall be final
8
and binding upon the parties hereto. Should Landlord, following any breach or
default of 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 that Tenant may have abandoned the leased Premises),
then Landlord, besides the rights and remedies specified in Section 1951.4 of
the California Civil Code and all other rights and remedies Landlord may have at
law or equity, shall have the right to enforce all of Landlord's rights and
remedies under this Lease, including but not limited to the right to recover the
installments of rent as they become 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 said
Premises and thereby terminate this Lease for any previous breach or default
which remains uncured, or for any subsequent breach or default.
25. DAMAGE BY FIRE, ETC. If the Premises are or the building is damaged by fire
or other casualty which is covered by insurance, Landlord shall forthwith repair
the same, provided such repairs can be made within sixty (60) working days from
the date of such damage under the laws and regulations of the state, federal,
county and municipal authorities having jurisdiction thereof, and this Lease
shall remain in full force and effect during the making of such repairs, except
that Tenant shall be entitled to a proportionate reduction of rent while such
repairs are being made if the damage was not attributable to Tenant's negligent
or willful act, such proportionate reduction to be based upon the full extent to
which the making of such repairs shall interfere with the business carried on by
Tenant in the Premises. If such repairs are not covered by insurance or cannot
be made within sixty (60) working days from the date of such damage, Landlord
shall have the option either (1) to repair or restore such damage, this Lease
continuing in full force and effect, but the rent to be proportionately reduced
as herein above in this paragraph provided, or (2) to give notice to Tenant at
any time within thirty (30) working days after the date of such damage
terminating this Lease as of a date to be specified in such notice, which date
shall not be less than thirty (30) nor more than sixty (60) working days after
the giving of such notice. In the event of the giving of such notice of
termination by either Landlord or Tenant, this Lease and all interest of Tenant
in the Premises shall terminate on the date so specified in such notice, and the
rent, reduced by any proportionate reduction based upon the extent, if any, to
which said damage interfered with the business carried on by Tenant in the
Premises, shall be paid up to date of such termination. Landlord shall not be
liable for or be required to repair any injury or damage by fire or other cause
to the property of Tenant, or to make repairs or replacements of any paneling,
decorations, railings, floor coverings or any equipment or improvements
installed on the Premises by Tenant. Tenant hereby waives any provisions of law
automatically terminating this Lease or otherwise contrary to the provisions of
this paragraph in the event of damage to or destruction of the Premises.
26. EMINENT DOMAIN. If all or any part of the Premises shall be taken or
appropriated by any public or quasi-public authority under the power of eminent
domain, and such taking will substantially impair Tenant's use of the Premises
for more than ninety (90) days, either party hereto shall have the right, at its
option, to terminate this Lease. If all or any part of the building of which the
Premises are a part shall be taken or appropriated by any public or quasi-public
authority under any power of eminent domain, Landlord may terminate this Lease.
In either of such events, Landlord shall be entitled to and Tenant upon demand
of Landlord shall assign to Landlord any rights of Tenant to any and all income,
rent, award, or any interest therein whatsoever which may be paid or made in
connection with such public or quasi-public use or purpose, and Tenant shall
have no claim against Landlord or the condemner for the value of any unexpired
term of this Lease. If a part of the Premises shall be so taken or appropriated
9
and neither party shall elect to terminate this Lease, the rent thereafter to be
paid shall be equitably reduced.
27. FLATS AND RIDERS. Clauses, plats and riders, if any, signed by Landlord
and Tenant and endorsed on or affixed to this Lease are a part hereof, and in
the event of variation or discrepancy the duplicate original hereof, including
such clauses, plats and riders, if any, held by Landlord shall control.
28. SALE BY LANDLORD. In the event of a sale or conveyance by Landlord of the
building, the same shall operate to release 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. If
any security be given by Tenant to secure the faithful performance of all or any
of the covenants of this Lease on the part of Tenant, Landlord may transfer
and/or deliver the security to the successor in interest of Landlord, and
thereupon Landlord shall be discharged from any further liability in reference
thereto. Except as set forth in this Paragraph 28, this Lease shall not be
affected by any such sale or conveyance.
29. ESTOPPEL CERTIFICATES. At any time and from time to time, upon not more
than ten (10) days prior to request by Landlord, Tenant shall execute,
acknowledge and deliver to Landlord a statement certifying the date of
commencement of this Lease, stating that this Lease is unmodified and in full
force and effect (or if there have been modifications, that this Lease is in
full force and effect as modified and the date and nature of such modifications)
and the dates to which the rent has been paid, and setting forth such other
matters as may reasonably be requested by Landlord. Landlord and Tenant intend
that any such statement delivered pursuant to this paragraph may be relied upon
by any mortgagee or the beneficiary of any Deed of Trust or by any purchaser or
prospective purchaser of the building.
30. RIGHT OF LANDLORD TO PERFORM. All covenants and agreements to be kept or
performed by Tenant under any of the terms of this lease shall be performed by
Tenant at Tenant's sole cost and expense and without any abatement of rent. If
Tenant shall fail to pay any sum of money, other than rent, required to be paid
by it hereunder or shall fail to perform any other act on its part to be
performed hereunder, and such failure shall continue for ten (10) days after
notice thereof by Landlord, Landlord may, but shall not be obligated to, and
without waiving any default of Tenant or releasing Tenant from any obligations
of Tenant hereunder, make any such payment or perform any such other act on
Tenant's part to be made or performed as in this Lease provided. All sums so
paid by the Landlord and all necessary incidental costs, together with interest
thereon at the rate of ten percent (10%) per annum from the date of such payment
by the Landlord, shall be paid to Landlord forthwith on demand, and Landlord
shall have (in addition to any other right or remedy of Landlord) the same
rights and remedies in the event of nonpayment thereof by Tenant as in the case
of default in payment of rent.
31. ATTORNEY FEES. If either Landlord or Tenant shall obtain legal counsel or
bring an action against the other by reason of the breach of any covenant or
warranty hereof, or otherwise arising out of this lease, the unsuccessful party
shall pay to the prevailing party reasonable attorney's fees, which shall be
payable whether or not any action is prosecuted to judgment. The term
"prevailing party" shall include, without limitation, a party who obtains legal
counsel or brings an action against the other by reason of the other's breach or
default and
10
obtains substantially the relief sought, whether by compromise, settlement or
judgment.
32. SURRENDER OF PREMISES. The voluntary or other surrender of this Lease by
Tenant or mutual cancellation thereof shall not work a merger and, at the option
of Landlord, shall terminate all or any existing subleases or subtenancies, or
at the option of Landlord, may operate as an assignment to Landlord of any or
all such subleases or subtenancies.
33. WAIVER. The waiver by Landlord or Tenant of performance of any term,
covenant or condition herein contained shall not be deemed to be a waiver of
such term, covenant or condition or any subsequent breach of the same or any
other term, covenant or condition herein contained. The subsequent acceptance of
rent hereunder by Landlord shall not be deemed to be a waiver of any preceding
breach by Tenant of any term, covenant or condition of this Lease, other than
the failure of Tenant to pay the particular rent so accepted, regardless of
Landlord's knowledge of such preceding breach at the time of acceptance of such
rent.
34. NOTICES. All notices and demands which may or are required to be given by
either party to the other hereunder shall be in writing. All notices and demands
by Landlord to Tenant shall be delivered personally or sent by United States
certified or registered mail, postage prepaid, addressed to Tenant at the
Premises, or to such other such place as Tenant may from time to time by like
notice designate. All notices and demands by Tenant to Landlord shall be sent by
United States certified or registered mail, postage prepaid, addressed to
Landlord at 000 Xxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx, 00000 or to
----------------------------------------------------------
other such place as Landlord may from time to time by like notice designate.
35. NOTICE OF SURRENDER. At least ninety (90) days before the last day of the
term hereof, Tenant shall give to Landlord a written notice of intention to
surrender the Premises on that date, but nothing contained herein or any failure
to give such notice shall be construed as an extension of the term hereof or as
consent of Landlord to any holding over by Tenant.
36. DEFINED TERMS AND MARGINAL HEADINGS. The words "Landlord" and "Tenant" as
used herein shall include the plural as well as the singular. Words used in
masculine gender include the feminine and neuter. If there be more than one
Tenant, the obligations hereunder imposed upon Tenant shall be joint and
several. The marginal headings and titles to the paragraphs of the Lease are not
a part of this Lease and shall have no effect upon the construction or
interpretation of any part hereof.
37. TIME AND APPLICABLE LAW. Time is of the essence of this Lease and each and
all of its provisions. This Lease shall in all respects be governed by the laws
of the state in which the Premises are located.
38. SUCCESSORS. Subject to the provisions of Paragraph 14 hereof, the
covenants and conditions herein contained shall be binding upon and inure to the
benefits of the heirs, successors, executors, administrators and assigns of the
parties hereto.
39. ENTIRE AGREEMENT. This Lease constitutes the entire agreement between
Landlord and Tenant and no promises or representations, express or implied,
either written or oral, not herein set forth shall be binding upon or inure to
the benefit of Landlord or Tenant. This Lease shall not be modified by any oral
agreement, either express or implied, and all modifications hereof shall be in
writing and signed by both Landlord and Tenant.
11
40. LATE CHARGE. In the event Tenant shall fail to pay any rents or sums due
hereunder on or before the due date herein provided, then and in that event the
amount so due and unpaid shall bear a late charge equal to five percent (5%) of
the amount due together with interest accruing from the date due at the maximum
interest rate permitted by law, which late charge and interest shall be payable
forthwith upon demand. (The foregoing shall be in addition to any other right or
remedy of Landlord.)
41. ADDITIONAL PROVISIONS. The exhibits and addenda listed below are
incorporated by reference in this Lease:
Exhibit A and Rules and Regulations
42. Tenant will take the space "as is".
IN WITNESS WHEREOF Landlord and Tenant have executed this lease the day and year
first above written.
"Landlord" "Tenant"
ROSJAN LIMITED PARTNERSHIP INFOSPACE, INC.
By: Xxxxxxx-Xxxxxx Management Group By: /s/ Xxxx X. Xxxxxxxx
Its Managing Agent -------------------------
Xxxx X. Xxxxxxxx
By: /s/ Xxxx X. Xxxxxx Its: Vice President Finance
-------------------------------- ------------------------
Xxxx X. Xxxxxx
Date: 3/12/98
Its: Dir. Prop. Mgt. -----------------------
-------------------------------
Date: 3/20/98
------------------------------
12
RULES AND REGULATIONS FOR THE BUILDING
ATTACHED TO AND MADE A PART OF THIS LEASE
1. Except as provided or required by Landlord in accordance with building
standards, no sign, placard, picture, advertisement, name or notice shall be
inscribed, displayed, printed, painted or affixed by Tenant on or to any part of
the building or exterior of the Premises leased to Tenants or to the door or
doors thereof without the written consent of Landlord first obtained and
Landlord shall have the right to remove any such sign, placard, picture,
advertisement, name or notice without notice to and at the expense of Tenant.
2. Except as provided or required by Landlord in accordance with building
standards, no draperies, curtains, blinds, shades, screens or other devices
shall be hung at or used in connection with any window or exterior door of the
Premises.
3. The bulletin board or directory of the building shall be used primarily for
display of the name and location of Tenants and Landlord reserves the right to
exclude any other names therefrom, to limit the number of names associated with
Tenants to be placed thereon and to charge for names associated with Tenants to
be placed thereon at rates applicable to Tenants.
4. The sidewalks, halls, passages, exits, entrances, elevators and stairways of
the building shall not be obstructed by Tenants or used by them for any purpose
other than for ingress to and egress from their respective Premises. The halls,
passages, exits, entrances, elevators, stairways, balconies and roof of the
building are not for the use of the general public and Landlord in all cases
reserves the right to control the same and prevent access thereto by all persons
whose presence, in the judgment of the Landlord, is or may be prejudicial to the
safety, character, reputation or interests of the building and its Tenants;
provided however, that Landlord shall not prevent such access to persons with
whom Tenants deal in the ordinary course of business unless such persons are
engaged in illegal activities. No person shall go upon the roof of the building
unless expressly so authorized by Landlord.
5. Tenants shall not alter any lock nor install any new or additional locks or
any bolts on any interior or exterior door of any Premises leased to Tenant.
6. The doors, windows, light fixtures and any lights or skylights that reflect
or admit light into halls or other places of the building shall not be covered
or obstructed. The toilet rooms, toilets, urinals, wash bowls and other
apparatus shall not be used for any purpose other than that for which they were
constructed and no foreign substance of any kind whatsoever shall be thrown or
placed therein. The expense of any breakage, stoppage or damage resulting from
the violation of this rule shall be borne by the Tenant who, or whose employees
or invitees, cause such expense.
7. Tenants shall not xxxx, drive nails, screw or drill into the walls, woodwork
or plaster or in any way deface the building or any Premises leased except for
supporting partitions, pictures, paintings, and other similar solely decorative
items.
8. Furniture, freight or equipment of every kind shall be moved into or out of
the building only at such times and in such manner as Landlord shall designate.
Landlord may prescribe and limit the weight, size and position of all equipment
to be used by Tenants, other than standard office desks, chairs and tables and
portable office machines. Safes and other heavy equipment
13
shall, if considered necessary by Landlord, stand on wood strips of such
thickness as Landlord deems necessary to distribute properly the weight thereof.
All damage to the building or Premises occupied by Tenants caused by moving or
maintaining any property of a Tenant shall be repaired at the expense of such
Tenant.
9. No Tenant shall employ any person, other than the janitor provided by
Landlord, for the purposes of cleaning the Premises occupied by such Tenant
unless otherwise agreed to by Landlord. Except with the written consent of
Landlord, no person shall be permitted to enter the building for the purpose of
cleaning the same. Tenants shall not cause any unnecessary labor by carelessness
or indifference in the preservation of good order and cleanliness. Landlord
shall not be responsible to any Tenant for loss of property on the Premises,
however occurring, or for any damage to the property of any Tenant caused by the
employees or independent contractors of Landlord or by any other person. Janitor
service will not be furnished when rooms are occupied during the regular hours
when janitor service is provided. Window cleaning shall be done only at the
regular and customary times determined by Landlord for such services.
10. No Tenant shall sweep or throw or permit to be swept or thrown any dirt or
other substance into any of the corridors, halls or elevators or out of the
doors or stairways of the building; use or keep or permit to be used or kept any
foul or noxious gas or substance; permit or suffer the Premises occupied by such
Tenant to be occupied or used in a manner offensive or objectionable to Landlord
or other Tenants by reason of noise, odors or vibrations; interfere in any way
with other Tenants or persons having business in the building; or bring or keep
or permit to be brought or kept in the building any animal life form, other than
human, except seeing eye dogs when in the company of their masters.
11. No cooking shall be done or permitted by Tenants in their respective
Premises except making coffee and microwave cooking, nor shall Premises occupied
by Tenants be used for the storage of merchandise, washing clothes, lodging, or
any improper, objectionable or immoral purposes.
12. No Tenant shall use or keep in the building any kerosene, gasoline or
inflammable or combustible fluid or material or use any method of heating or
air-conditioning other than such as be supplied by Landlord.
13. No boring or cutting for telephone or electric wires shall be allowed
without the consent of Landlord and any such wires permitted shall be introduced
at the place and in the manner described by Landlord. The location of
telephones, speakers, fire extinguisher and all other office equipment affixed
to Premises occupied by Tenants shall be subject to the approval of Landlord.
Each Tenant shall pay all expenses incurred in connection with the installation
of its equipment, including any telephone and electricity distribution
equipment.
14. Upon termination of occupancy of the building, each Tenant shall deliver to
Landlord all keys furnished by Landlord, and any reproductions thereof made by
or at the direction of such Tenant, and in the event of loss of any keys
furnished shall pay Landlord therefore.
15. No Tenant shall affix any floor covering in any manner except as approved
by Landlord. The expense of repairing any damage caused by removal of any such
floor covering shall be borne by the Tenant by whom or by whose contractors,
employees or invitees, the damage
14
shall have been caused.
16. On Sundays and legal holidays and between the hours of 6:00 p.m. and 8:00
a.m., access to the building may be refused unless the person seeking access is
known to the person charged with responsibility for the safety and protection of
the building and has a pass or is properly identified. In no case shall Landlord
be liable for any loss or damage for any error with respect to the admission to
or exclusion from the building of any person. In case of invasion, mob, riot,
public excitement or other commotion and at such times as Landlord deems
necessary for the safety and protection of the building, its Tenants and all
property located therein, Landlord may prohibit and prevent access to the
building by all persons by any means Landlord deems appropriate.
17. Each Tenant shall see that the exterior doors of its Premises are closed
and securely locked on Sundays and legal holidays and not later than 6:00 p.m.
of each other day. Each Tenant shall exercise extraordinary care and caution
that all water faucets or water apparatus are entirely shut off each day before
its Premises are left unoccupied and that all electricity or gas shall likewise
be carefully shut off so as to prevent waste or damage to Landlord or to other
Tenants of the building.
18. Landlord may exclude or expel from the building any person who, in the
judgment of Landlord, is intoxicated or under the influence of liquor or drugs,
or who shall in any manner do any act in violation of any of the rules and
regulations of the building.
19. The requirements of Tenants will be attended to only upon application to
Landlord at the office of the building. Employees of Landlord shall not perform
any work outside of their regular duties unless under special instructions from
Landlord, and no employee of Landlord shall be required to admit any person
(Tenant or otherwise) to any Premises in the building.
20. No vending or food or beverage dispensing machine or machines of any
description shall be installed, maintained or operated upon any premise in the
building without the written permission of the Landlord.
21. Landlord, without notice and without liability to any Tenant, at any time
may change the name or the street address of the building.
22. The word "building" as used in these rules and regulations means the
building of which a part of the Premises are leased pursuant to the Lease to
which these rules and regulations are attached. Each Tenant shall be liable to
Landlord and to each other Tenant of the building for any loss, cost, expense,
damage or liability, including attorneys' fees, caused or occasioned by the
failure of such first named Tenant to comply with these rules, but Landlord
shall have no liability for such failure of for failing or being unable to
enforce compliance therewith by any Tenant and such failure by Landlord or non-
compliance by any other Tenant shall not be a ground for termination of the
lease to which these rules and regulations are attached by the Tenant
thereunder.
23. Carpet protector pads shall be used by all desk stations.
15
FIRST AMENDMENT TO LEASE
This First Amendment to Lease ("First Amendment") is entered as of this twenty-
fourth day of June, 1998, by and between Rosjan Limited Partnership, A
California Limited Partnership ("Landlord"), and Infospace, Inc., ("Tenant").
The Parties enter this First Amendment on the basis of the following facts,
intentions and understandings:
A. Landlord and Tenant have entered into that certain Office Lease dated 10th of
March, 1998, pursuant to which Landlord leased to Tenant Suite 443/445
("Premises") for the permitted uses listed therein, the Premises being
located in the City and County of San Mateo, State of California, as
indicated on the Building Floor Plan attached as Exhibit A to the Lease.
B. Landlord agrees and Tenant now desires to expand the Premises and amend the
Lease in other respects as hereinafter provided.
C. In the event of any conflict between the covenants and agreements of the
Lease and this First Amendment, the covenants and agreements of this First
Amendment shall prevail.
Now, therefore, In Consideration of the mutual covenants and promises of
parties, the parties hereto agree as follows:
1. Additional Premises: The additional premises, consists of approximately 422
-------------------
rentable square feet (previously a part of suite 459).
2. Term: The Term of the Lease will be for 24 months, commencing July 1, 1998
----
and terminating on June 30, 2000.
3. Base Rent: Effective July 1, 1998, the Base Rent for the Additional Premises
---------
shall be as follows (to be paid in addition to the base rent for Suite
443/445):
Additional Premises Premises Combined Premises
------------------- --------- -----------------
7/1/98 - 6/30/99 $780.70 $2,665.85 $3,446.55
7/1/99 - 6/30/00 $801.80 $2,737.90 $3,539.70
4. Security Deposit: The Security Deposit for the Additional Premises shall be
----------------
equal to Seven Hundred Eighty and 70/100 dollars ($780.70). Upon execution of
this First Amendment of Lease, the Tenant shall pay to the Landlord Seven
Hundred Eighty and 70/100 dollars ($780.70) as Security deposit together with
the first month's rent ($780.70 + $780.70 = $1,561.40).
5. Property Tax, Insurance and Operating Expense Increases for Additional
----------------------------------------------------------------------
Premises: Tenant shall pay to landlord and amount equal to .59% of any
--------
increase in property taxes, insurance premiums and operating expenses paid or
incurred by Landlord above such paid or incurred by Landlord during the Base
Year. "Base Year" shall mean the calendar year 1998. (Total share for
combined Premises is 2.63%.)
Page 2
6. Obligations: Except as otherwise provided herewith the Lease shall remain in
-----------
full force.
7. The Additional Premises shall be "as is".
In Witness Whereof, the parties hereto have executed the First Amendment to
Lease as of the date first above written.
"Landlord": "Tenant"
Rosjan Limited Partnership Infospace, Inc.
By: Xxxxxxx-Xxxxxx Management Group By: /s/ Xxxx Xxxxxxxx
Its Management Agent -----------------------------
Xxxx Xxxxxxxx
By:_____________________________ Its: Chief Financial Officer
Xxxx X. Xxxxxx
Its: Director of Property Management By: /s/ Xxxx Xxxx
-----------------------------
Xxxx Xxxx
Date:___________________________
Its President & CEO
Date:___________________________
2
OFFICE LEASE
PARTIES. This lease, made this 10th day of March between ROSJAN LIMITED
PARTNERSHIP and Infospace, Inc., Tenant.
WITNESSETH:
1. PREMISES. Landlord hereby leases to Tenant and Tenant hereby hires from
Landlord those certain Premises (hereinafter called "Premises") outlined in red
on Exhibit A attached hereto and by this reference made a part hereof, said
Premises being situated on the 4th floor, Suite 443 of that certain building
(hereinafter called "Building") known as 000 Xxxxxx Xxxxxx, Xxx Xxxxx,
-----------------------------
California.
----------
Said letting and hiring is upon and subject to the terms, covenants, and
conditions herein set forth and Tenant covenants as a material part of the
consideration for this Lease to keep and perform each and all of said terms,
covenants and conditions by it to be kept and performed and that this Lease is
made upon the condition of such performance.
2. PURPOSE. The Premises shall be used for general office purposes and for no
other use or purpose without the prior written consent of Landlord.
3. TERM. The term of this Lease shall be for twenty-seven (27) months
commencing on the 1st day of April, 1998, (the "Lease Term"), ending on the
30th day of June, 2000.
4. POSSESSION. If Landlord, for any reason whatsoever, cannot deliver possession
of the said Premises to Tenant at the commencement of the term hereof, this
Lease shall be void or voidable, nor shall Landlord be liable for any loss or
damage resulting therefrom, but in that event there shall be proportionate
reduction of rent covering the period between the commencement of the said term
and the time when Landlord can deliver possession. If possession of the Premises
is not delivered to Tenant within six months from the scheduled commencement
date, this Lease will terminate. Should Landlord tender possession of the
Premises to Tenant prior to the date specified for the commencement of the term,
and Tenant accepts such prior tender, such prior occupancy shall be subject to
all terms, covenants and conditions of this Lease, including the payment of
rent.
5. RENT. On or before the first day of each calendar month during the term
hereof, Tenant shall pay to Landlord, as minimum monthly rent for the Premises,
the sum of $2,665.85. The minimum monthly rent for any partial month shall be
pro-rated at the rate of 1/30 of the minimum monthly rent per day. Said rent
shall be paid by Tenant to Landlord, in advance, without deduction or offset, in
lawful money of the United States of America at 000 Xxxxxx Xxxxxx. Xxxxx 000,
-----------------------------
San Mateo, California, or to such other person or at such place as Landlord may
---------------------
from time to time designate in writing. The minimum monthly rent for the
premises shall increase as stated below:
April 1, 1998 through June 30, 1999 - $2,665.85 per month
July 1, 1999 through June 30, 2000 - $2,737.90 per month
1
6. RENTAL ADJUSTMENT.
(A) In addition to the monthly rent provided for in Paragraph 5 hereof, Tenant
shall pay to Landlord the sums set forth in the following subparagraphs.
Tenant's percentage share as set forth below has been calculated by dividing the
number of square feet of rentable area in the Premises by the number of square
feet rentable in the building. In the event the rentable area of the building is
changed, the Tenant's percentage share shall be appropriately adjusted. Rentable
area shall be based upon the Building Owners and Managers Association
International (BOMAI) standard method of floor measurement for office buildings.
Tenant hereby approves and accepts Landlord's calculation of Tenant's current
percentage share as set forth below.
(B) Tax Increases and Assessments. Tenant shall pay to Landlord an amount equal
to 2.04% of any increase in real property taxes and assessments or other fees or
charges of whatsoever kind or character imposed by a governmental agency which
may be levied on the land and building of which the Premises are a part and
personal property taxes levied on personal property of Landlord used in the
operation of said land and building above the amount of such taxes levied and
assessed for the fiscal tax year ending 1998, either by way of increase in the
rate or in the assessed valuation of said land and building or by imposition of
any such charges by ordinance or statute of any authority having jurisdiction.
For the purposes of the subparagraph (A), real and personal property taxes shall
include, without limitation, taxes of every kind and nature levied and assessed
in lieu of or in substitution for existing or additional real or personal
property taxes on said land and building as well as any form of assessment,
license, fee, levy, penalty, or tax (other than inheritance or state taxes),
imposed by any authority having the direct or indirect power to tax, including
any city, county, state, or federal government, or any school, Agricultural,
lighting, drainage, or other improvement district, as against any legal or
equitable interest of Landlord in the Premises or in the real property of which
the Premises are a part, or as against Landlord's right to rent or other income
therefrom, or as against Landlord's business of leasing the Premises, and
including any and all charges which may be charged by the environmental
protection agency or other similar governmental regulatory agency or authority.
In addition, Tenant shall pay one hundred percent (100%) of any increase in
taxes or assessments of whatsoever kind and nature (including, without
limitation, all personal property taxes) caused by improvements or installations
made by Tenant to the Premises at any time during the term hereof. The total
amounts due hereunder shall be paid to Landlord on or before the date full
payment of such taxes or assessments or, if payable in installments, the date
payment of the first installment of such taxes or assessments shall become due.
In the event said taxes or assessments are charged to or paid or payable by
Landlord, Tenant forthwith upon demand therefore, shall reimburse Landlord for
all amounts of such taxes or assessments chargeable against Tenant pursuant to
this subparagraph (B) and paid by Landlord.
(C) Operating Expense Increases. Tenant shall pay to Landlord, at the times
hereinafter set forth, an amount equal to 2.04% of any increase in direct
expenses paid or incurred by Landlord on account of the operation or maintenance
of the building above such direct expenses paid or incurred by Landlord during
the Base Year. "Base Year" as used in this subparagraph (c) shall mean the
calendar year 1998. "Direct expenses" as used herein shall include all direct
costs of operation and maintenance as determined by standard accounting
practices as set forth in the Building Owners and Managers Association
International (BOMAI) chart of accounts from time to time (excluding, however,
any and all taxes of the nature set forth in subparagraph (B)
2
above) and shall include the following by way of illustration but not
limitation: the cost of contesting by appropriate proceeding the amount or the
validity of any of the aforementioned taxes or fees; water and sewer charges;
insurance premiums; license, permit and inspection fees; charges for heat,
light, power and steam; janitorial services; labor; supplies; materials,
equipment and tools; and management fees. "Direct expenses" as used herein shall
not include depreciation on the building or equipment therein, interest, or real
estate broker's commissions.
Statements of the amount of direct expenses for the preceding calendar year and
the amount of such increase payable by Tenant shall be determined or estimated
by Landlord shall be given to Tenant on such date as Landlord shall from time to
time determine. All amounts payable by Tenant as shown on said statement shall
be paid by Tenant within the time required by said statement. If during any such
year Landlord shall revise its estimate of Tenant's share of said expenses for
said year, Landlord shall advise Tenant and commencing on the next date payment
of additional charges are due, Tenant shall pay all additional charges based on
such revised estimate for the portion of the year already elapsed and shall
commence paying the additional charges based on such revised estimate for the
remainder of such year.
7. SECURITY. Simultaneously with the execution of this Lease, Tenant shall
deposit with Landlord the sum of $5,331.70 of which sum $2,665.85 shall be
payment of the April 1998 rent and the balance thereof, namely $2,665.85 shall
be held by Landlord as security for the faithful performance by Tenant of all
the terms, covenants and conditions of this lease. Provided that at the end of
the term Tenant shall have delivered up the Premises to Landlord, broom clean,
and in the same condition as at the commencement date, reasonable wear excepted,
said sum held as security shall be returned to Tenant. No interest shall be
payable thereon and Landlord shall not be required to keep said sum in a
separate account. No security or guaranty which may now or hereafter be
furnished Landlord for the payment of the rent herein reserved or for
performance by Tenant of the other covenants or conditions of this Lease shall
in any way be a 6; or defense to any action in unlawful detainer, or for the
recovery of the Premises, or to any action which Landlord may at any time
commence for a breach of any of the covenants or conditions of this Lease.
8. USES PROHIBITED. 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 rate of or affect any fire or other insurance upon the building or
any of its contents or cause a cancellation of any insurance policy covering
said building or 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 or injure or annoy them, or
use or allow the Premises to be used for any residential, immoral, unlawful, or
objectionable purpose, nor shall Tenant cause, maintain, or permit any nuisance
in, on or about the Premises. No cooking devices or other odor-causing devices,
loudspeakers or other similar device, system or apparatus which can be heard or
experienced outside the Premises shall, without the prior written approval of
Landlord, be used in or at the Premises. Tenant shall not commit or suffer to be
committed any waste in or upon the Premises.
9. COMPLIANCE WITH LAW. Tenant shall not use or permit anything to be done in or
about the Premises which will in any way conflict with any law, statute,
ordinance or governmental rule, regulation or requirement now in force or which
may hereafter be enacted or promulgated. Tenant, at its sole cost and expense,
shall promptly comply with all laws, statutes, ordinances
3
and governmental rules, regulations or requirements now in force or which may
hereafter be in force and with the requirements of any board of fire
underwriters or other similar body now or hereafter constituted relating to or
affecting the condition, use of occupancy of the Premises, excluding structural
changes not related to or affected by Tenant's improvements or acts. The
judgment of any court of competent jurisdiction or the admission of Tenant in an
action against Tenant, whether Landlord be a party thereto or not, that Tenant
has violated any law, statute, ordinance or governmental rule, regulation or
requirement shall be conclusive of that fact as between Landlord and Tenant.
10. ALTERATIONS. Tenant shall not make or suffer to be made any alterations,
additions or improvements to or of the Premises or any part thereof without the
written consent of Landlord first had and obtained. Any alterations, additions,
or improvements to or of said Premises, including without limitation any
partitions, movable or otherwise, and all carpeting, shall at once become a part
of the-realty and belong to Landlord. Movable furniture, equipment and trade
fixtures shall remain the property of Tenant. If Landlord consents to the making
of any alterations, additions or improvements to the Premises by Tenant, the
same shall be made by Tenant at Tenant's sole cost and expense and any
contractor or person selected by Tenant to make the same must first be approved
of in writing by Landlord. Upon the expiration or sooner termination of the term
Tenant, upon demand by Landlord, at Tenant's sole cost and expense, forthwith
and with all due diligence shall remove any alterations, additions or
improvements made by Tenant designated by Landlord to be removed, and Tenant,
forthwith and with all due diligence, at its sole cost and expense, shall repair
any damage to the Premises caused by such removal.
12. ABANDONMENT. Tenant shall not vacate or abandon the Premises at any time
during the term hereof, and if Tenant shall abandon, vacate or surrender the
Premises or be dispossessed by process of law, or otherwise, any personal
property belonging to Tenant and left on the Premises shall be deemed to be
abandoned, at the option of Landlord.
13. LIENS. Tenant shall keep the Premises and the building and the land upon
which the building is situated free from any liens arising out of any work
performed, materials furnished or obligations incurred by Tenant. Tenant shall,
in the event of the filing of any such lien, post any bond required to release
the Premises therefrom.
14. ASSIGNMENT AND SUBLETTING.
(A) Tenant shall not mortgage, pledge, hypothecate or encumber this Lease or any
interest therein. Tenant shall not assign this Lease or sublet or suffer any
other person (the agents and servants of Tenant excepted) to occupy or use the
Premises, or any part thereof, or any right or privilege appurtenant thereto
without the prior written consent of Landlord first had and obtained, which
consent shall not be unreasonably withheld. Landlord's consent to one
assignment, subleasing or occupancy shall not be deemed to be a consent to any
subsequent assignment, subleasing or occupancy.
(B) Provided further and notwithstanding anything therein before set forth: In
the event that at any time or from time to time during the term of this Lease,
Tenant desires to sublet all or any part of the Premises, Tenant shall notify
Landlord in writing (the "Sublet Notice") of the terms of the proposed
subletting, and the area so proposed to be sublet and shall give Landlord the
right to sublet from Tenant such space (the "Sublet Space") on the same terms as
those
4
contained in the Sublet Notice. Such option shall be exercisable by Landlord in
writing for a period of thirty (30) days after receipt of the Sublet Notice.
If Landlord fails to exercise its option and Tenant desires to complete the
proposed sublease, Tenant shall deliver an executed copy of such sublease to
Landlord in order to obtain its consent as required in paragraph 14(A) above. If
Landlord consents to a sublease, then such sublease shall be subject to and made
upon the following terms:
(A) Any such sublease shall be subject to the terms of this Lease and the term
thereof may not extend beyond the expiration of the term of this Lease;
(B) No subtenant shall have a right to further sublease its Premises. If
Landlord fails to exercise such option, and Tenant fails to consummate a
sublease with a third party within sixty (60) days after the expiration of
Landlord's option period on the same terms and conditions contained in the
Sublet Notice, Tenant shall be required to deliver a new Sublet Notice to
Landlord and comply with the terms and conditions set forth above before any
further subletting shall be permitted.
(C) Regardless of Landlord's consent, no subletting nor assignment shall release
Tenant of Tenant's obligation or alter the primary liability of Tenant to pay
rent and perform other obligations of Tenant under this lease.
(D) In no event shall Tenant assign this Lease or sublet the Premises or any
portion thereof to any then, existing, or prospective Tenant of said building.
(E) Tenant shall pay Landlord's reasonable costs incurred in connection with
Tenant's request to assign this lease or sublet the Premises, regardless of
whether or not the Landlord consents to the proposed transfer.
15. INDEMNIFICATION OF LANDLORD. Landlord shall not be liable to Tenant and
Tenant hereby waives all claims against Landlord for any injury or damage to any
person or property in or about the Premises by or from any cause whatsoever and,
without limiting the generality of the foregoing, whether caused by water
leakage of any character from the roof, walls, basement or other portion of the
Premises of said building or any part thereof.
Tenant shall hold Landlord harmless from and indemnify and defend Landlord
against any and all claims or liability for any injury or damage to any person
or property whatsoever: (1) occurring in, on or about the Premises or any part
thereof, and (2) occurring in, on or about any facilities (including without
prejudice to the generality of the term "facilities" elevators, stairways,
passageways or hallways), the use of which Tenant may have in common with other
Tenants of the building, when such injury or damage shall be caused in part or
in whole by the act, neglect, default or omission of any duty with respect to
the same by Tenant, its agents, employees or invitees.
16. INSURANCE. Tenant agrees to keep in force during the term hereof, at
Tenant's expense, public liability and property damage insurance with combined
single limits in the amount of not less than $1,000,000.00 (one million
dollars). Said policy shall name Landlord as an additional insured, and shall
insure Landlord's contingent liability as respects acts, or omissions of Tenant,
shall be issued by an insurance company licensed to do business in the state
where the
5
Premises are located, and shall provide that said insurance shall not be
canceled or amended unless thirty (30) days prior written notice to Landlord is
first given. Said policy or a certificate thereof shall be delivered to Landlord
by Tenant prior to the commencement of the term and each renewal of such
insurance. Tenant hereby waives all rights of subrogation against Landlord to
which any insurance carrier may at any time become entitled under any policy of
insurance carried by Tenant.
17. UTILITIES. Landlord shall furnish to the Premises, during reasonable hours
of generally recognized business days, to be determined by Landlord, and subject
to the rules and regulations of the building, water and electricity suitable for
the use of the Premises for general office purposes and heat required in
Landlord's judgment for the comfortable use and occupation of the Premises for
such purposes, janitorial service, and elevator service. Landlord shall not be
liable for, and Tenant shall not be entitled to any abatement or reduction of
rent by reason if, Landlord's failure to furnish any of the foregoing when such
failure or delay is caused by accident, breakage, repairs, strikes, lockouts or
other labor disturbances or labor disputes of any character, or is caused
directly or indirectly by the limitation, curtailment, rationing or
restrictions on use of water, electricity, gas or any other form of energy
serving the Premises or the building, or by any other cause, similar or
dissimilar, beyond the reasonable control of Landlord. Landlord shall not be
liable under any circumstances for loss of business or injury to property,
however occurring, through or in connection with or incidental to failure to
furnish any of the foregoing. Tenant shall pay and provide for all services and
utilities not furnished by Landlord.
Tenant will not, without the written consent of Landlord, use any apparatus or
device' in the Premises which will in any way increase the amount of
electricity, cooling capacity or water usually furnished or supplied for use of
the Premises for general office purposes or connect with electric current,
except through existing electrical outlets in the Premises, or water pipes, any
apparatus or device for the purpose of using electric current or water. If
Tenant shall require water or electric current in excess of that customarily
furnished or supplied to other Tenants of the building for use of their Premises
for general office purposes, Tenant shall first procure the consent of Landlord,
which Landlord may refuse, to the use thereof and Landlord may cause an electric
current or water meter to be installed in the Premises so as to measure the
amount of excess electric current or water consumed by Tenant. The cost of any
such meter and of the installation, maintenance and repair thereof shall be paid
by Tenant and Tenant agrees to pay to Landlord promptly upon demand thereof the
cost of all such excess water and electric current consumed, as shown by said
meters, at the rates charged for such services by the local public utility
furnishing the same, plus any additional expense incurred in keeping account of
the excess electric current or water so consumed.
18. PERSONAL PROPERTY AND OTHER TAXES. 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, including carpeting installed by Tenant even though said
carpeting has become a part of the leased Premises; and any and all taxes or
increases therein levied or assessed on Landlord or Tenant by virtue of
alterations, additions or improvements to the Premises made by Tenant or
Landlord at Tenant's request. In the event said taxes are charged to or paid or
payable by Landlord, Tenant, forthwith upon demand therefore, shall reimburse
Landlord for all of such taxes paid by Landlord.
6
19. RULES AND REGULATIONS. Tenant shall faithfully observe and comply with the
rules and regulations printed on or annexed to this Lease and all modifications
of and additions thereto applicable to all Tenants of the building from time to
time put into effect by Landlord of which Tenant shall have notice. Landlord
shall not be responsible to Tenant for the nonperformance by any other Tenant or
occupant of the building of any of said rules and regulations.
20. HOLDING OVER. If Tenant holds possession of the Premises after the term of
this Lease, Tenant shall, (at option of Landlord to be exercised by Landlord's
giving written notice to Tenant and not otherwise) become a Tenant from month to
month upon the terms and conditions herein specified, so far as applicable, at a
monthly rental of 1.15 x the last month's rent payable in advance, in lawful
money, and shall continue to be such Tenant until thirty (30) days after Tenant
shall have given to Landlord or Landlord shall have given to Tenant a written
notice of intent to terminate such monthly tenancy. Unless Landlord shall
exercise the option hereby given him Tenant shall be a Tenant at sufferance
only, whether or not Landlord shall accept any rent from Tenant is so holding
over.
21. SUBORDINATION. 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 building and/or the land upon which the building is situated and
to the lien of any mortgages or deeds of trust in any amount or amounts
whatsoever now or hereafter placed on or against said building and/or land or on
or against the Landlord's interest or estate therein 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. Tenant hereby irrevocably appoints Landlord the
attorney in fact of Tenant to execute and deliver any such instrument or
instruments for or in the name of Tenant. In the event of termination of any
ground or underlying lease, or in the event of foreclosure or exercise of any
power of sale under any mortgage or deed of trust superior to this Lease or to
which this Lease is subject or subordinate, upon Tenant's attornment to the
lessor under such ground or underlying lease or to the purchaser at any
foreclosure sale or sale pursuant to the exercise of any power of sale under any
mortgage or deed of trust, this Lease shall not terminate and Tenant shall
automatically be and become the Tenant of said Lessor under such ground or
underlying lease or to said purchaser, whichever shall make demand therefore.
22. ENTRY BY LANDLORD. Landlord reserves and shall at any and all reasonable
times have the right to enter the Premises to inspect the same, to supply
janitor service and any other service to be provided by Landlord to Tenant
hereunder, to submit the Premises to prospective purchasers or Tenants, to post
notices of nonresponsibility, and to alter, improve or repair the Premises and
any portion of the building without abatement of rent and may for that purpose
erect scaffolding and other necessary structures where reasonably required by
the character of the work to be performed, always providing the entrance to the
Premises shall not be blocked thereby and further providing that the business of
Tenant shall not be interfered with unreasonably. Tenant hereby waives any claim
for damages for any injury or inconvenience to or interference with Tenant's
business, any loss occasioned by such entry. For each of the aforesaid purposes,
Landlord shall at all times have and retain a key with which to unlock all of
the doors, in, upon and about the Premises excluding Tenant's vaults and safes,
and Landlord
7
shall have the right to use any and all means which Landlord may deem proper to
open said doors in an emergency in order to obtain entry to the Premises, and
any entry to the Premises obtained by Landlord by any of said means, or
otherwise, shall not under any circumstances be construed or deemed to be a
forcible or unlawful entry into or a detainer of the Premises or an eviction of
Tenant from the Premises or any portion thereof.
23. INSOLVENCY OR BANKRUPTCY. Either (a) the appointment of a receiver to take
possession of all or substantially all of the assets of Tenant, (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 reason of voluntary or involuntary bankruptcy proceedings nor
shall any rights or privileges hereunder be an asset of Tenant in any
bankruptcy, insolvency or reorganization proceedings.
24. DEFAULT. In the event of any breach or default of Lease by Tenant, then
Landlord, besides any other rights and remedies of Landlord at law or equity,
shall have the right either to terminate Tenant's right to possession of the
Premises and thereby terminate this Lease or to have this Lease continue in full
force and effect with Tenant at all times having the right to possession of the
Premises. Should Landlord elect to terminate Tenant's right to possession of the
Premises and terminate this Lease, Landlord shall have the immediate right of
entry and may remove all persons and property from the Premises. Such property
so removed may be stored in a public warehouse or elsewhere at the cost and for
the account of Tenant. Upon such termination, Landlord, in addition to any other
rights and remedies (including rights and remedies under Subparagraphs (1), (2)
and (4) of Subdivision (a) of Section 1951.2 of the California Civil Code or any
amendment thereto), shall be entitled to recover from Tenant the worth at the
time of award of the amount by which the unpaid rent for the balance of the term
after the time of award exceeds the amount of such rental loss that the Tenant
proves could be reasonably avoided. The worth at the time of award of the amount
referred to in subparagraphs (1) and (2) of Subdivision (a) of Section 1951.2 of
the California Civil Code shall be computed by allowing interest at the maximum
rate allowed by law. The worth at the time of the award of the amount referred
to in subparagraph (3) of Subdivision 1951.2 of the California Civil Code shall
be computed by discounting such amount at the discount rate of the Federal
Reserve Bank of San Francisco at the time of the award plus 1%.
Any proof by Tenant of the amount of rental loss that could reasonably be
avoided shall be made in the following manner: Landlord and Tenant shall each
select a licensed real estate broker in the business of renting property of the
same type and use as the Premises and in the same geographic vicinity and such
two real estate brokers shall select a third licensed real estate broker and the
three licensed real estate brokers so selected shall determine the amount of
rental loss that could reasonably be avoided for the balance of the term of this
Lease after the time of award. The decision of the majority of said licensed
real estate brokers shall be final and binding upon the parties hereto. Should
Landlord, following any breach or default of 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 that Tenant may have
abandoned the leased Premises), then Landlord, besides the rights and remedies
specified in Section 1951.4 of the California Civil Code and all other rights
and remedies Landlord may have at law or equity, shall have the right to enforce
all of Landlord's rights and remedies under this Lease, including but not
limited to the right to recover the installments of rent as they become due
8
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 said Premises and thereby terminate this Lease
for any previous breach or default which remains uncured, or for any subsequent
breach or default.
25. DAMAGE BY FIRE, ETC. If the Premises are or the building is damaged by fire
or other casualty which is covered by insurance, Landlord shall forthwith repair
the same, provided such repairs can be made within sixty (60) working days from
the date of such damage under the laws and regulations of the state, federal,
county and municipal authorities having jurisdiction thereof, and this Lease
shall remain in full force and effect during the making of such repairs, except
that Tenant shall be entitled to a proportionate reduction of rent while such
repairs are being made if the damage was not attributable to Tenant's negligent
or willful act, such proportionate reduction to be based upon the full extent to
which the making of such repairs shall interfere with the business carried on by
Tenant in the Premises. If such repairs are not covered by insurance or cannot
be made within sixty (60) working days from the date of such damage, Landlord
shall have the option either (1) to repair or restore such damage, this Lease
continuing in full force and effect, but the rent to be proportionately reduced
as herein above in this paragraph provided, or (2) to give notice to Tenant at
any time within thirty (30) working days after the date of such damage
terminating this Lease as of a date to be specified in such notice which date
shall not be less than thirty (30) nor more than sixty (60) working days after
the giving of such notice. In the event of the giving of such notice of
termination by either Landlord or Tenant, this Lease and all interest of Tenant
in the Premises shall terminate on the date so specified in such notice, and the
rent, reduced by any proportionate reduction based upon the extent, if any, to
which said damage interfered with the business carried on by Tenant in the
Premises, shall be paid up to date of such termination. Landlord shall not be
liable for or be required to repair any injury or damage by fire or other cause
to the property of Tenant, or to make repairs or replacements of any paneling,
decorations, railings, floor coverings or any equipment or improvements
installed on the Premises by Tenant. Tenant hereby waives any provisions of law
automatically terminating this Lease or otherwise contrary to the provisions of
this paragraph in the event of damage to or destruction of the Premises.
26. EMINENT DOMAIN. If all or any part of the Premises shall be taken or
appropriated by any public or quasi-public authority under the power of eminent
domain, and such taking will substantially impair Tenant's use of the Premises
for more than ninety (90) days, either party hereto shall have the right, at its
option, to terminate this Lease. If all or any part of the building of which the
Premises are a part shall be taken or appropriated by any public or quasi-public
authority under any power of eminent domain, Landlord may terminate this Lease.
In either of such events, Landlord shall be entitled to and Tenant upon demand
of Landlord shall assign to Landlord any rights of Tenant to any and all income,
rent, award, or any interest therein whatsoever which may be paid or made in
connection with such public or quasi-public use or purpose, and Tenant shall
have no claim against Landlord or the condemner for the value of any unexpired
term of this Lease. If a part of the Premises shall be so taken or appropriated
and neither party shall elect to terminate this Lease, the rent thereafter to be
paid shall be equitably reduced.
27. FLATS AND RIDERS. Clauses, plats and riders, if any, signed by Landlord and
Tenant and endorsed on or affixed to this Lease are a part hereof, and in the
event of variation or discrepancy the duplicate original hereof, including such
clauses, plats and riders, if any, held by Landlord shall control.
9
28. SALE BY LANDLORD. In the event of a sale or conveyance by Landlord of the
building, the same shall operate to release 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. If
any security be given by Tenant to secure the faithful performance of all or any
of the covenants of this Lease on the part of Tenant, Landlord may transfer
and/or deliver the security to the successor in interest or Landlord, and
thereupon Landlord shall be discharged from any further liability in reference
thereto. Except as set forth in this Paragraph 28, this Lease shall not be
affected by any such sale or conveyance.
29. ESTOPPEL CERTIFICATES. At any time and from time to time, upon not more than
ten (10) days prior to request by Landlord, Tenant shall execute, acknowledge
and deliver to Landlord a statement certifying the date of commencement of this
Lease; stating that this Lease is unmodified and in full force and effect (or if
there have been modifications, that this Lease is in full force and effect as
modified and the date and nature of such modifications) and the dates to which
the rent has been paid, and setting forth such other matters as may reasonably
be requested by Landlord. Landlord and Tenant intend that any such statement
delivered pursuant to this paragraph may be relied upon by any mortgagee or the
beneficiary of any Deed of Trust or by any purchaser or prospective purchaser of
the building.
30. RIGHT OF LANDLORD TO PERFORM. All covenants and agreements to be kept or
performed by Tenant under any of the terms of this lease shall be performed by
Tenant at Tenant's sole cost and expense and without any abatement of rent. If
Tenant shall fail to pay any sum of money, other than rent, required to be paid
by it hereunder or shall fail to perform any other act on its part to be
performed hereunder, and such failure shall continue for ten (10) days after
notice thereof by Landlord, Landlord may, but shall not be obligated to, and
without waiving any default of Tenant or releasing Tenant from any obligations
of Tenant hereunder, make any such payment or perform any such other act on
Tenant's part to be made or performed as in this Lease provided. All sums so
paid by the Landlord and all necessary incidental costs, together with interest
thereon at the rate of ten percent (10%) per annum from the date of such payment
by the Landlord, shall be paid to Landlord forthwith on demand, and Landlord
shall have (in addition to any other right or remedy of Landlord) the same
rights and remedies in the event of nonpayment thereof by Tenant as in the case
of default in payment of rent.
31. ATTORNEY FEES. If either Landlord or Tenant shall obtain legal counsel or
bring an action against the other by reason of the breach of any covenant or
warranty hereof, or otherwise arising out of this lease, the unsuccessful party
shall pay to the prevailing party reasonable attorney's fees, which shall be
payable whether or not any action is prosecuted to judgment. The term
"prevailing party" shall include, without limitation, a party who obtains legal
counsel or brings an action against the other by reason of the other's breach or
default and obtains substantially the relief sought, whether by compromise,
settlement or judgment.
32. SURRENDER OF PREMISES. The voluntary or other surrender of this Lease by
Tenant or mutual cancellation thereof shall not work a merger and, at the option
of Landlord, shall terminate all or any existing subleases or subtenancies, or
at the option of Landlord, may operate as an assignment to Landlord of any or
all such subleases or subtenancies.
10
33. WAIVER. The waiver by Landlord or Tenant of performance of any term,
covenant or condition herein contained shall not be deemed to be a waiver of
such term, covenant or condition or any subsequent breach of the same or any
other term, covenant or condition herein contained. The subsequent acceptance of
rent hereunder by Landlord shall not be deemed to be a waiver of any preceding
breach by Tenant of any term, covenant or condition of this Lease, other than
the failure of Tenant to pay the particular rent so accepted, regardless of
Landlord's knowledge of such preceding breach at the time of acceptance of such
rent.
34. NOTICES. All notices and demands which may or are required to be given by
either party to the other hereunder shall be in writing. All notices and demands
by Landlord to Tenant shall be delivered personally or sent by United States
certified or registered mail, postage prepaid, addressed to Tenant at the
Premises, or to such other such place as Tenant may from time to time by like
notice designate. All notices and demands by Tenant to Landlord shall be sent by
United States certified or registered mail, postage prepaid, addressed to
Landlord at 000 Xxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx. 00000 or to
----------------------------------------------------------
other such place as Landlord may from time to time by like notice designate.
35. NOTICE OF SURRENDER. At least ninety (90) days before the last day of the
term hereof, Tenant shall give to Landlord a written notice of intention to
surrender the Premises on that date, but nothing contained herein or any failure
to give such notice shall be construed as an extension of the term hereof or as
consent of Landlord to any holding over by Tenant.
36. DEFINED TERMS AND MARGINAL HEADINGS. The words "Landlord" and "Tenant" as
used herein shall include the plural as well as the singular. Words used in
masculine gender include the feminine and neuter. If there be more than one
Tenant, the obligations hereunder imposed upon Tenant shall be joint and
several. The marginal headings and titles to the paragraphs of the Lease are not
a part of this Lease and shall have no effect upon the construction or
interpretation of any part hereof.
37. TIME AND APPLICABLE LAW. Time is of the essence of this Lease and each and
all of its provisions. This Lease shall in all respects be governed by the laws
of the state in which the Premises are located.
38. SUCCESSORS. Subject to the provisions of Paragraph 14 hereof, the covenants
and conditions herein contained shall be binding upon and inure to the benefits
of the heirs, successors, executors, administrators and assigns of the parties
hereto.
39. ENTIRE AGREEMENT. This Lease constitutes the entire agreement between
Landlord and Tenant and no promises or representations, express or implied,
either written or oral, not herein set forth shall be binding upon or inure to
the benefit of Landlord or Tenant. This Lease shall not be modified by any oral
agreement, either express or implied, and all modifications hereof shall be in
writing and signed by both Landlord and Tenant.
40. LATE CHARGE. In the event Tenant shall fail to pay any rents or sums due
hereunder on or before the due date herein provided, then and in that event the
amount so due and unpaid shall bear a late charge equal to five percent (5%) of
the amount due together with interest accruing from the date due at the maximum
interest rate permitted by law, which late charge and interest shall be payable
forthwith upon demand. (The foregoing shall be in addition to any other right or
remedy of Landlord.)
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41. ADDITIONAL PROVISIONS. The exhibits and addenda listed below are
incorporated by reference in this Lease:
Exhibit A and Rules and Regulations
42. Tenant will take the space "as is".
IN WITNESS WHEREOF Landlord and Tenant have executed this lease the day and year
first above written.
"Landlord" "Tenant"
ROSJAN LIMITED PARTNERSHIP INFOSPACE, INC.
By: Xxxxxxx-Xxxxxx Management Group By: /s/ Xxxx X. Xxxxxxxx
-------------------------
Its Managing Group Xxxx X. Xxxxxxxx
By: /s/ Xxxx X. Xxxxxx Its: VP Finance
--------------------------- ------------------------
Xxxx X. Xxxxxx
Date: 3-18-98
Its: DIR. PROD. MGT. -----------------------
--------------------------
Date: 3/20/98
-------------------------
12
RULES AND REGULATIONS FOR THE BUILDING
ATTACHED TO AND MADE A PART OF THIS LEASE
1. Except as provided or required by Landlord in accordance with building
standards, no sign, placard, picture, advertisement, name or notice shall be
inscribed, displayed, printed, painted or affixed by Tenant on or to any part of
the building or exterior of the Premises leased to Tenants or to the door or
doors thereof without the written consent of Landlord first obtained and
Landlord shall have the right to remove any such sign, placard, picture,
advertisement, name or notice without notice to and at the expense of Tenant.
2. Except as provided or required by Landlord in accordance with building
standards, no draperies, curtains, blinds, shades, screens or other devices
shall be hung at or used in connection with any window or exterior door of the
Premises.
3. The bulletin board or directory of the building shall be used primarily for
display of the name and location of Tenants and Landlord reserves the right to
exclude any other names therefrom, to limit the number of names associated with
Tenants to be placed thereon and to charge for names associated with Tenants to
be placed thereon at rates applicable to Tenants.
4. The sidewalks, halls, passages, exits, entrances, elevators and stairways of
the building shall not be obstructed by Tenants or used by them for any purpose
other than for ingress to and egress from their respective Premises. The halls,
passages, exits, entrances, elevators, stairways, balconies and roof of the
building are not for the use of the general public and Landlord in all cases
reserves the right to control the same and prevent access thereto by all persons
whose presence, in the judgment of the Landlord, is or may be prejudicial to the
safety, character, reputation or interests of the building and its Tenants;
provided however, that Landlord shall not prevent such access to persons with
whom Tenants deal in the ordinary course of business unless such persons are
engaged in illegal activities. No person shall go upon the roof of the building
unless expressly so authorized by Landlord.
5. Tenants shall not alter any lock nor install any new or additional locks or
any bolts on any interior or exterior door of any Premises leased to Tenant.
6. The doors, windows, light fixtures and any lights or skylights that reflect
or admit light into halls or other places of the building shall not be covered
or obstructed. The toilet rooms, toilets, urinals, wash bowls and other
apparatus shall not be used for any purpose other than that for which they were
constructed and no foreign substance of any kind whatsoever shall be thrown or
placed therein. The expense of any breakage, stoppage or damage resulting from
the violation of this rule shall be borne by the Tenant who, or whose employees
or invitees, cause such expense.
7. Tenants shall not xxxx, drive nails, screw or drill into the walls, woodwork
or plaster or in any way deface the building or any Premises leased except for
supporting partitions, pictures, paintings, and other similar solely decorative
items.
8. Furniture, freight or equipment of every kind shall be moved into or out of
the building only at such times and in such manner as Landlord shall designate.
Landlord may prescribe and limit the weight, size and position of all equipment
to be used by Tenants, other than standard office desks, chairs and tables and
portable office machines. Safes and other heavy equipment
13
shall, if considered necessary by Landlord, stand on wood strips of such
thickness as Landlord deems necessary to distribute properly the weight thereof.
All damage to the building or Premises occupied by Tenants caused by moving or
maintaining any property of a Tenant shall be repaired at the expense of such
Tenant.
9. No Tenant shall employ any person, other than the janitor provided by
Landlord, for the purposes of cleaning the Premises occupied by such Tenant
unless otherwise agreed to by Landlord. Except with the written consent of
Landlord, no person shall be permitted to enter the building for the purpose of
cleaning the same. Tenants shall not cause any unnecessary labor by carelessness
or indifference in the preservation of good order and cleanliness. Landlord
shall not be responsible to any Tenant for loss of property on the Premises,
however occurring, or for any damage to the property of any Tenant caused by the
employees or independent contractors of Landlord or by any other person. Janitor
service will not be furnished when rooms are occupied during the regular hours
when janitor service is provided. Window cleaning shall be done only at the
regular and customary times determined by Landlord for such services.
10. No Tenant shall sweep or throw or permit to be swept or thrown any dirt or
other substance into any of the corridors, halls or elevators or out of the
doors or stairways of the building; use or keep or permit to be used or kept
any-foul or noxious gas or substance; permit or suffer the Premises occupied by
such Tenant to be occupied or used in a manner offensive or objectionable to
Landlord or other Tenants by reason of noise, odors or vibrations; interfere in
any way with other Tenants or persons having business in the building; or bring
or keep or permit to be brought or kept in the building any animal life form,
other than human, except seeing eye dogs when in the company of their masters.
11. No cooking shall be done or permitted by Tenants in their respective
Premises except making coffee and microwave cooking, nor shall Premises occupied
by Tenants be used for the storage of merchandise, washing clothes, lodging, or
any improper, objectionable or immoral purposes.
12. No Tenant shall use or keep in the building any kerosene, gasoline or
inflammable or combustible fluid or material or use any method of heating or
air-conditioning other than such as be supplied by Landlord.
13. No boring or cutting for telephone or electric wires shall be allowed
without the consent of Landlord and any such wires permitted shall be introduced
at the place and in the manner described by Landlord. The location of
telephones, speakers, fire extinguisher and all other office equipment affixed
to Premises occupied by Tenants shall be subject to the approval of Landlord.
Each Tenant shall pay all expenses incurred in connection with the installation
of its equipment, including any telephone and electricity distribution
equipment.
14. Upon termination of occupancy of the building, each Tenant shall deliver to
Landlord all keys furnished by Landlord, and any reproductions thereof made by
or at the direction of such Tenant, and in the event of loss of any keys
furnished shall pay Landlord therefore.
15. No Tenant shall affix any floor covering in any manner except as approved by
Landlord. The expense of repairing any damage caused by removal of any such
floor covering shall be borne by the Tenant by whom or by whose contractors,
employees or invitees, the damage
14
shall have been caused.
16. On Sundays and legal holidays and between the hours of 6:00 p.m. and 8:00
a.m., access to the building may be refused unless the person seeking access is
known to the person charged with responsibility for the safety and protection of
the building and has a pass or is properly identified. In no case shall Landlord
be liable for any loss or damage for any error with respect to the admission to
or exclusion from the building of any person. In case of invasion,
mob, riot, public excitement or other commotion and at such times as Landlord
deems necessary for the safety and protection of the building, its Tenants and
all property located therein, Landlord may prohibit and prevent access to the
building by all persons by any means Landlord deems appropriate.
17. Each Tenant shall see that the exterior doors of its Premises are closed
and securely locked on Sundays and legal holidays and not later than 6:00 p.m.
of each other day. Each Tenant shall exercise extraordinary care and caution
that all water faucets or water apparatus are entirely shut off each day before
its Premises are left unoccupied and that all electricity or gas shall likewise
be carefully shut off so as to prevent waste or damage to Landlord or to other
Tenants of the building.
18. Landlord may exclude or expel from the building any person who, in the
judgment of Landlord, is intoxicated or under the influence of liquor or drugs,
or who shall in any manner do any act in violation of any of the rules and
regulations of the building.
19. The requirements of Tenants will be attended to only upon application to
Landlord at the office of the building. Employees of Landlord shall not perform
any work outside of their regular duties unless under special instructions from
Landlord, and no employee of Landlord shall be required to admit any person
(Tenant or otherwise) to any Premises in the building.
20. No vending or food or beverage dispensing machine or machines of any
description shall be installed, maintained or operated upon any premise in the
building without the written permission of the Landlord.
21. Landlord, without notice and without liability to any Tenant, at any time
may change the name or the street address of the building.
22. The word "building" as used in these rules and regulations means the
building of which a part of the Premises are leased pursuant to the Lease to
which these rules and regulations are attached. Each Tenant shall be liable to
Landlord and to each other Tenant of the building for any loss, cost, expense,
damage or liability, including attorneys' fees, caused or occasioned by the
failure of such first named Tenant to comply with these rules, but Landlord
shall have no liability for such failure of for failing or being unable to
enforce compliance therewith by any Tenant and such failure by Landlord or non-
compliance by any other Tenant shall not be a ground for termination of the
lease to which these rules and regulations are attached by the Tenant
thereunder.
23. Carpet protector pads shall be used by all desk stations.
24. The HVAC is in operation from 8:00 a.m. to 6:00 p.m. Monday to Friday except
public Holidays.
15
OFFICE SPACE LEASE
BETWEEN
Rosjan Limited Partnership
a California partnership
AND
Infospace, Inc.
a California Corporation
INDEX TO LEASE
ARTICLE I. BASIC LEASE PROVISIONS.................................................. 1.
ARTICLE II. PREMISES............................................................... 3.
SECTION 2.1 LEASED PREMISES............................................... 3.
SECTION 2.2 ACCEPTANCE OF PREMISES........................................ 3.
ARTICLE III. TERM................................................................. 3.
SECTION 3.1 GENERAL....................................................... 3.
SECTION 3.2 DELAY IN POSSESSION........................................... 3.
ARTICLE IV. RENT AND OPERATING EXPENSES............................................ 3.
SECTION 4.1 BASIC RENT.................................................... 3.
SECTION 4.2 OPERATING EXPENSE INCREASE.................................... 4.
SECTION 4.3 INTENTIONALLY OMITTED......................................... 5.
SECTION 4.4 SECURITY DEPOSIT.............................................. 5.
ARTICLE V. USES.................................................................... 5.
SECTION 5.1 USE........................................................... 5.
SECTION 5.2 SIGNS......................................................... 6.
ARTICLE VI. LANDLORD SERVICES...................................................... 6.
SECTION 6.1 UTILITIES AND SERVICES........................................ 6.
SECTION 6.2 OPERATION AND MAINTENANCE OF COMMON FACILITIES................ 6.
SECTION 6.3 USE OF COMMON FACILITIES...................................... 6.
SECTION 6.4 CHANGES AND ADDITIONS BY LANDLORD............................. 7.
ARTICLE VII. MAINTAINING THE PREMISES.............................................. 7.
SECTION 7.1 TENANT'S MAINTENANCE AND REPAIR............................... 7.
SECTION 7.2 LANDLORD'S MAINTENANCE AND REPAIR............................. 7.
SECTION 7.3 ALTERATIONS................................................... 7.
SECTION 7.4 MECHANIC'S LIENS.............................................. 8.
SECTION 7.5 ENTRY AND INSPECTION.......................................... 8.
SECTION 7.6 SPACE PLANNING AND SUBSTITUTION............................... 9.
ARTICLE VIII. TAXES AND ASSESSMENTS ON TENANT'S PREMISES........................... 8.
ARTICLE IX. ASSIGNMENT AND SUBLETTING.............................................. 9.
SECTION 9.1 RIGHTS OF PARTIES............................................. 9.
SECTION 9.2 EFFECT OF TRANSFER............................................ 10.
SECTION 9.3 SUBLEASE REQUIREMENTS......................................... 10.
ARTICLE X. INSURANCE AND INDEMNITY............................................... 11.
SECTION 10.1 TENANT'S INSURANCE................................. 11.
SECTION 10.2 LANDLORD'S INSURANCE............................... 11.
SECTION 10.3 TENANT'S INDEMNITY................................. 11.
SECTION 10.4 LANDLORD'S NONLIABILITY............................ 11.
ARTICLE XI. DAMAGE OR DESTRUCTION................................................ 12.
SECTION 11.1 RESTORATION........................................ 12.
SECTION 11.2 LEASE GOVERNS...................................... 12.
ARTICLE XII. EMINENT DOMAIN.................................................... 12.
SECTION 12.1 TOTAL OR PARTIAL TAKING............................ 12.
SECTION 12.2 TEMPORARY TAKING................................... 13.
ARTICLE XIII. SUBORDINATION; ESTOPPEL CERTIFICATE................................ 13.
SECTION 13.1 SUBORDINATION...................................... 13.
SECTION 13.2 ESTOPPEL CERTIFICATE............................... 13.
ARTICLE XIV. DEFAULTS AND REMEDIES............................................... 13.
SECTION 14.1 TENANT'S DEFAULTS.................................. 13.
SECTION 14.2 LANDLORD'S REMEDIES................................ 14.
SECTION 14.3 LATE PAYMENTS...................................... 16.
SECTION 14.4 RIGHT OF LANDLORD TO PERFORM....................... 16.
SECTION 14.5 DEFAULT BY LANDLORD................................ 16.
SECTION 14.6 EXPENSES AND LEGAL FEES............................ 17.
SECTION 14.7 WAIVER OF JURY TRIAL............................... 17.
ARTICLE XV. END OF TERM.......................................................... 17.
SECTION 15.1 HOLDING OVER....................................... 17.
SECTION 15.2 MERGER ON TERMINATION.............................. 17.
SECTION 15.3 SURRENDER OF PREMISES; REMOVAL OF PROPERTY......... 17.
ARTICLE XVI. PAYMENTS AND NOTICES.............................................. 18.
ARTICLE XVII. RULES AND REGULATIONS............................................. 18.
ARTICLE XVIII. BROKER'S COMMISSION............................................... 18.
ARTICLE XIX. TRANSFER OF LANDLORD'S INTEREST................................... 18.
ARTICLE XX. INTERPRETATION.................................................... 19.
SECTION 20.1 GENDER AND NUMBER.................................. 19.
SECTION 20.2 HEADINGS........................................... 19.
SECTION 20.3 JOINT AND SEVERAL LIABILITY........................ 19.
SECTION 20.4 SUCCESSORS..................................... 19.
SECTION 20.5 TIME OF ESSENCE................................ 19.
SECTION 20.6 CONTROLLING LAW................................ 19.
SECTION 20.7 SEVERABILITY................................... 19.
SECTION 20.8 WAIVER AND CUMULATIVE REMEDIES................. 19.
SECTION 20.9 INABILITY TO PERFORM........................... 19.
SECTION 20.10 ENTIRE AGREEMENT............................... 19.
SECTION 20.11 QUIET ENJOYMENT................................ 20.
SECTION 20.12 SURVIVAL....................................... 20.
ARTICLE XXI. EXECUTION AND RECORDING......................................... 20.
SECTION 21.1 COUNTERPARTS................................... 20.
SECTION 21.2 CORPORATE AND PARTNERSHIP AUTHORITY............ 20.
SECTION 21.3 EXECUTION OF LEASE; NO OPTION OR OFFER......... 20.
SECTION 21.4 RECORDING...................................... 20.
SECTION 21.5 AMENDMENTS..................................... 20.
ARTICLE XXII. MISCELLANEOUS................................................... 20.
SECTION 22.1 NONDISCLOSURE OF LEASE TERMS................... 20.
SECTION 22.2 REPRESENTATIONS BY TENANT...................... 20.
SECTION 22.3 CHANGES REQUESTED BY LENDER.................... 21.
SECTION 22.4 MORTGAGEE PROTECTION........................... 21.
SECTION 22.5 COVENANTS AND CONDITIONS....................... 21.
SECTION 22.6 TENANT SERVICES................................ 21.
EXHIBIT A
PREMISES..................................................... Exhibit A - 1
EXHIBIT B
UTILITIES AND SERVICES....................................... Exhibit B - 1
EXHIBIT C
TENANT'S INSURANCE........................................... Exhibit C - 1
EXHIBIT D
RULES AND REGULATIONS........................................ Exhibit D - 1
EXHIBIT E
WORK LETTER.................................................. Exhibit H - 1
OFFICE SPACE LEASE
THIS LEASE is made as of the 10th day of August, 1998, by and between
Rosjan Limited Partnership, a California partnership, hereinafter called
"Landlord," and Infospace, Inc., a California Corporation, herein after called
"Tenant."
ARTICLE I. BASIC LEASE PROVISIONS
Each reference in this Lease to the "Basic Lease Provisions" shall mean and
refer to the following collective terms, the application of which shall be
governed by the provisions in the remaining Articles of this Lease.
1. Tenant's Name and Trade Name: Infospace, Inc.
2. Premises: Suite No. 360 (the Premises more
particularly described in Section 2.1).
Address of Office Building: 000 Xxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
3. Use of Premises: General Business and Office Use
4. Estimated Commencement Date: September 1, 1998
5. Lease Term: 22 months, plus such additional days as may
be required to cause this Lease to
terminate on the final day of the calendar
month in which the lease term ends.
6. Basic Rent: Months 1 - 2: $1,144.22 per month.
Months 3 - 4: $1,144.23 per month.
Months 5 - 10: $2,288.45 per month.
Months 11 - 24: $2,350.35 per month.
Other Rental Adjustments: None
7. Operating Expense
Base Year: 1998
Expense Recovery Period: Every calendar year during the Term (or
portion thereof for the first and last
Lease years) commencing January 1 and
ending December 31.
8. Floor Area of Premises: Approximately rentable square feet.
9. Security Deposit: $2,350.35
10. Broker(s): N/A
11. Tenant Improvements: Tenant shall accept Premises in as-is
condition and shall construct all required
tenant improvements at Tenant's expense in
accordance with requirements of Article VII
and any other applicable provisions of this
Lease.
12. Address for Payments and
Notices:
1
LANDLORD: TENANT:
Rosjan Limited Partnership Prior to the Commencement Date:
000 Xxxxxx Xxxxxx, Xxxxx 000 Infospace, Inc
Xxx Xxxxx, Xxxxxxxxxx 00000 000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxx: Xxxxx X. Xxxxxxxx Xxx Xxxxx, Xxxxxxxxxx 00000
Telephone: (000)000-0000 Attn: Xxxx X. Xxxxxxxx
Facsimile: (000)000-0000 Telephone: (000)000-0000
Facsimile: (000)000-0000
With a copy to:
After the Commencement Date:
Xxxxxxx-Xxxxxx Management Same As Above
Group
000 Xxxxxxxx Xxxxxxxxx,
0/xx/ Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Director of Property
Management
12. Tenant's Construction Representative: Xxxx X. Xxxxxxxx
00. Landlord's Construction Representative: Xxxxx Xxxxxxxx (000)000-0000
14. Tenant's Percentage: 1.74%
2.
ARTICLE II. PREMISES
SECTION 2.1 LEASED PREMISES. Landlord leases to Tenant and Tenant rents
from Landlord the premises shown in Exhibit A (the Premises) containing the
floor area set forth in Item 8 of the Basic Lease Provisions and known by the
suite number identified In Item 2 of the Basic Lease Provisions. The Premises
are located in the office building identified in Item 2 of the Basic Lease
Provisions (which together with the underlying real property is called the
Office Building). The rentable square footage of the Premises as described
above is conclusive as between the parties.
SECTION 2.2 ACCEPTANCE OF PREMISES. Tenant acknowledges that neither
Landlord nor any representative of Landlord has made any representation or
warranty with respect to the Premises or the Office Building or the suitability
or fitness of either for any purpose except as set forth in this Lease. The
taking of possession or use of the Premises by Tenant for any purpose other than
construction shall conclusively establish that the Premises and the Office
Building were in satisfactory condition and in conformity with the provisions of
this Lease in all respects except for those matters which Tenant shall have
brought to Landlord's attention on a written punch list delivered to Landlord.
The list shall be limited to any items required to be accomplished by Landlord
under the Work Letter (if any) attached as Exhibit E and shall be delivered to
Landlord within ten (10) days after the term (Term) of this Lease commences as
provided in Article III below. If there is no Work Letter, or if no items are
required of Landlord under the Work Letter, by taking possession of the Premises
Tenant accepts the Improvements in their existing condition and waives any right
or claim against Landlord arising out of the condition of the Premises. Nothing
contained in this Section shall affect the commencement of the Term or the
obligation of Tenant to pay rent. Landlord shall diligently complete all punch
list items of which it is notified as provided above for which it is liable.
ARTICLE III. TERM
SECTION 3.1 GENERAL. The term of this Lease ("Term") shall be for the
period shown in Item 5 of the Basic Lease Provisions. The Term shall commence
(Commencement Date) on the earlier of (a) subject to the provisions of Section
3.2, the Estimated Commencement Date as set forth in Item 4 of the Basic Lease
Provisions or (b) the date Tenant acquires possession or commences use of the
Premises for any purpose other than construction. Within ten (10) days after the
Commencement Date, the parties shall memorialize on a form provided by Landlord
the actual Commencement Date and the expiration date (Expiration Date) of this
Lease. Tenant's failure to execute that form shall not affect the validity of
Landlord's determination of those dates. If Tenant fails to timely execute such
form, then Landlord shall be deemed appointed as Tenant's attorney in fact with
power of attorney to execute such for in the name and on behalf of Tenant and
Tenant shall be conclusively bound to all of the information set forth in such
form as though executed by Tenant.
SECTION 3.2 DELAY IN POSSESSION. If Landlord, for any reason whatsoever,
cannot deliver possession of the Premises to Tenant on or before the Estimated
Commencement Date, this Lease shall not be void or voidable nor shall Landlord
be liable to Tenant for any resulting loss or damage. However, Tenant shall not
be liable for any rent and the Commencement Date shall not occur until Landlord
delivers possession of the Premises and the Premises are in fact ready for
occupancy as defined below, except that if Landlord's failure to so deliver
possession on the Estimated Commencement Date is attributable to any action or
in-action by Tenant (including without limitation any Tenant Delay described in
the Work Letter, if any, attached to this Lease), then the Commencement Date
shall not be advanced to the date on which possession of the Premises is
tendered to Tenant, and Landlord shall be entitled to full performance by Tenant
(including the payment of rent) from the date Landlord would have been able to
deliver the Premises to Tenant but for Tenant's delay(s).
ARTICLE IV. RENT AND OPERATING EXPENSES
SECTION 4.1 BASIC RENT. From and after the Commencement Date, Tenant shall
pay to Landlord without deduction or offset the Basic Rent for the Premises in
the total amount shown (including subsequent
3.
adjustments, if any) in Item 6 of the Basic Lease Provisions. Any rental
adjustment shown in Item 6 shall be deemed to occur on the specified monthly
anniversary of the Commencement Date whether or not that date occurs at the end
of a calendar month. The rent shall be due and payable in advance commencing on
the Commencement Date (as prorated for any partial month) and continuing
thereafter on the first day of each successive calendar month of the Term. No
demand notice or invoice shall be required. An installment of rent in the amount
of one (1) full month's Basic Rent at the initial rate specified in Item 6 of
the Basic Lease Provisions shall be delivered to Landlord concurrently with
Tenant's execution of this Lease and shall be applied against the Basic Rent
first due hereunder.
SECTION 4.2 OPERATING EXPENSE INCREASE
(a) Tenant shall reimburse Landlord as additional rent for Tenant's
Percentage of Operating Expenses, for each year after the Operating Expense Base
Year, incurred by Landlord in the operation of the Office Building. Tenant
acknowledges Landlord's rights to make changes or additions to the Office
Building from time to time pursuant to Section 6.5 below, in which event the
total rentable square footage within the Office Building may be adjusted.
(b) Commencing prior to the start of the first full Expense Recovery
Period of the Lease (as set forth in Item 7 of the Basic Lease Provisions), and
prior to the start of each full or partial Expense Recovery Period thereafter,
Landlord shall give Tenant a written estimate of the amount of Tenant's
proportionate share of Operating Expenses for the Expense Recovery Period or
portion thereof. Tenant shall pay the estimated amount to Landlord in equal
monthly installments in advance with Basic Rent. If Landlord has not furnished
its written estimate for any Expense Recovery Period by the time set forth
above, Tenant shall continue to pay cost reimbursements at the rates established
for the prior Expense Recovery Period, if any; provided that when the new
estimate is delivered to Tenant, Tenant shall, at the next monthly payment date,
pay any accrued cost reimbursements based upon the new estimate.
(c) Within one hundred twenty (120) days after the end of each Expense
Recovery Period, Landlord shall endeavor to furnish to Tenant a statement
showing in reasonable detail the actual or prorated Operating Expenses incurred
by Landlord during the period and the parties shall, within thirty (30) days
thereafter, make any payment or allowance necessary to adjust Tenant's estimated
payments, if any, to Tenant's actual proportionate share as shown by the annual
statement. Any amount due Tenant shall be credited against installments next
coming due under this Section 4.2, and any deficiency shall be paid by Tenant
together with the next installment. If Tenant has not made estimated payments
during the Expense Recovery Period, any amount owing by Tenant pursuant to
subsection (a) above shall be paid to Landlord in accordance with Article XVI.
Should Tenant fail to object in writing to Landlord's determination of actual
Operating Expenses within sixty (60) days following delivery of Landlord's
expense statement, Landlord's determination of actual Operating Expenses for the
applicable Expense Recovery Period shall be conclusive and binding on the
parties within thirty days following delivery of Landlord's expense statement.
(d) Even though the Lease has terminated and the Tenant has vacated the
Premises when the final determination is made of Tenant's share of Operating
Expenses for the Expense Recovery Period in which the Lease terminates, Tenant
shall, upon notice, pay the entire increase due over the estimated expenses
paid. Conversely, any overpayment made in the event expenses decrease shall be
rebated by Landlord to Tenant.
(e) If, at any time during any Expense Recovery Period, any one or more of
the Operating Expenses are increased to a rate(s) or amount(s) in excess of the
rate(s) or amount(s) used in calculating the estimated expenses for the year,
then Tenant's estimated share of Operating Expenses shall be increased for the
month in which the increase becomes effective and for all succeeding months by
an amount equal to Tenant's proportionate share of the increase. Landlord shall
give Tenant written notice of the amount or estimated amount of the increase,
the month in which the increase will become effective, Tenant's monthly share
thereof, and the months for which the payments are due. Tenant shall pay the
increase to Landlord as a part of Tenant's monthly payments of estimated
expenses, as provided in paragraph (b) above, commencing with the month in which
effective.
4
(f) The term Operating Expenses shall include all expenses of operation
and maintenance of the Office Building, together with all appurtenant Common
Facilities (as defined in Section 6.2), and shall include the following charges
by way of illustration but not limitation: water and sewer charges; taxes;
insurance premiums or reasonable premium equivalents, should Landlord elect to
self-insure any risk that Landlord is authorized to insure hereunder; license
permit and inspection fees; heat; light; power; janitorial services; air
conditioning; supplies; materials; equipment; tools; programs instituted to
comply with transportation management requirements; tenant services;
amortization of capital investments reasonably intended to produce a reduction
in operating charges or energy conservation; amortization of capital investments
necessary to bring the Office Building into compliance with applicable laws and
building codes enacted subsequent to the completion of construction of the
Office Building; labor, reasonably allocated wages and salaries fringe benefits
and payroll taxes for administrative and other personnel directly applicable to
the Office Building, including both Landlord's personnel and outside personnel
but exclusive of personnel above the level of building manager; any expense
incurred pursuant to Sections 6.1, 6.2, 6.4, 7.2 and 10.2 and Exhibits B and C
below; and a reasonable overhead/management fee. It is understood that Operating
Expenses shall include competitive charges for direct services provided by any
subsidiary or division of Landlord. The term "taxes," as used herein shall
include the following: (i) all real estate taxes or personal property taxes, as
such property taxes may be reassessed from time to time; (ii) other taxes,
documentary transfer fees, charges and assessments which are levied with respect
to this Lease or to the Office Building, and any improvements, fixtures and
equipment and other property of Landlord located in the Office Building except
that general net income and franchise taxes imposed against Landlord shall be
excluded; (iii) any tax surcharge or assessment which shall be levied in
addition to or in lieu of real estate or personal property taxes other than
taxes covered by Article VIII; and (iv) costs and expenses incurred in
contesting the amount or validity of any tax by appropriate proceedings. A copy
of Landlord's unaudited statement of expenses shall be made available to Tenant
upon request.
SECTION 4.3 INTENTIONALLY OMITTED.
SECTION 4.4 SECURITY DEPOSIT. Concurrently with Tenant's delivery of this
Lease, Tenant shall deposit with Landlord the sum, if any, stated in Item 9 of
the Basic Lease Provisions to be held by Landlord as security for the full and
faithful performance of Tenant's obligations under this Lease (the Security
Deposit). Upon any default by Tenant, including specifically Tenant's failure
to pay rent or to abide by its obligations under Sections 7.1 and 15.3 below,
Landlord may apply all or part of the Security Deposit as full or partial
compensation for that default. If any portion of the Security Deposit is so
applied, Tenant shall, within five (5) days after written demand by Landlord,
deposit cash with Landlord in an amount sufficient to restore the Security
Deposit to its original amount. Landlord shall not be required to keep this
Security Deposit separate from its general funds and Tenant shall not be
entitled to interest on the Security Deposit. If Tenant fully performs its
obligations under this Lease, the Security Deposit or any balance thereof shall
be returned to Tenant (or at Landlord's option to the last assignee of Tenant's
interest in this Lease) after the expiration of the Term, provided that Landlord
may retain the Security Deposit until such time as all amounts due from Tenant
in accordance with this Lease have been determined and paid in full.
ARTICLE V. USES
SECTION 5.1 USE. Tenant shall use the Premises only for the purposes
stated in Item 3 of the Basic Lease Provisions. The parties agree that any
contrary use shall be deemed to cause material and irreparable harm to Landlord
and shall entitle Landlord to injunctive relief, in addition to any other
available remedy. Tenant shall not do nor permit anything to be done in or about
the Premises which will in any way interfere with the rights of other occupants
of the Office Building or use, or allow the Premises to be used for any
improper, immoral, unlawful or objectionable purpose, nor shall Tenant permit
any nuisance or commit any waste in the Premises. Tenant shall not do or permit
to be done anything which will invalidate or increase the cost of any insurance
policy(ies) covering the Office Building, and/or their contents, and shall
comply with all applicable insurance underwriters' rules and the requirements of
the Pacific Fire Rating Bureau or any other organization performing a similar
function. Tenant shall comply, at its expense, with all present and future laws,
ordinances, and requirements of all governmental authorities that pertain to
Tenant or its use of the Premises, including without limitation, all federal and
state occupational, health and safety requirements and all
5.
recorded covenants, conditions and restrictions affecting the Office Building
whether or not Tenant's compliance will necessitate expenditures or interfere
with its use and enjoyment of the Premises. Tenant shall not generate, handle,
store or dispose of hazardous or toxic materials, as such materials may be
identified in any federal state or local law or regulation, in the Premises or
the Office Building without the prior written consent of Landlord, which consent
may be refused or conditioned by Landlord in its discretion. Tenant agrees that
it shall promptly complete and deliver to Landlord any disclosure form regarding
hazardous materials that may be required by any governmental agency. Tenant
shall promptly, upon demand, reimburse Landlord for any additional insurance
premium charged by reason of Tenant's failure to comply with the provisions of
this Section and shall indemnify Landlord from any liability and/or expense
resulting from Tenant's noncompliance. Tenant acknowledges that: (a) the Office
Building does not comply in certain respects with the requirements of the
Americans with Disabilities Act; and (b) certain portions of the Office Building
contain asbestos containing materials. Landlord has been advised that these
materials are non-friable and do not represent a health risk. Tenant is invited
to review reports concerning these matters on file at the office of the Office
Building.
SECTION 5.2 SIGNS. Tenant, upon obtaining the approval of Landlord in
writing, may affix a sign (restricted solely to Tenant's name as set forth In
Item 1 of the Basic Lease Provisions or such other name as Landlord may consent
to in writing) adjacent to the entry door of the Premises and shall maintain the
sign in good condition and repair during the Term. The sign shall conform to the
criteria for signs established by Landlord and shall be ordered through Landlord
at Tenant's expense. Tenant shall not place or allow to be placed any other
sign, decoration or advertising matter of any kind that is visible from the
exterior of the Premises. Any violating sign or decoration may be immediately
removed by Landlord at Tenant's expense without notice and without the removal
constituting a breach of this Lease or entitling Tenant to claim damages.
ARTICLE VI. LANDLORD SERVICES
SECTION 6.1 UTILITIES AND SERVICES. Landlord shall furnish to the Premises
the utilities and services described in Exhibit B subject to the conditions and
payment obligations and standards set forth in this Lease. Landlord shall not be
liable for any failure to furnish any services or utilities when the failure is
the result of any accident or other cause beyond Landlord's reasonable control,
nor shall Landlord be liable for damage to Tenant's equipment resulting from
power surges. Landlord's failure to furnish any services or utilities shall not
entitle Tenant to any damages, relieve Tenant of the obligation to pay rent, or
constitute a constructive or other eviction of Tenant, except that Landlord
shall diligently attempt to restore the service or utility promptly. Tenant
shall comply with all rules and regulations which Landlord may reasonably
establish for the provision of services and utilities and shall cooperate with
all reasonable conservation practices established by Landlord. Landlord shall,
at all reasonable times, have free access to all electrical and mechanical
installations of Landlord.
SECTION 6.2 OPERATION AND MAINTENANCE OF COMMON FACILITIES. During the
Term, Landlord shall operate all Common Facilities within the Office Building.
The term "Common Facilities" shall mean all areas within the exterior boundaries
of the Office Building which are not held for exclusive use by persons entitled
to occupy space, and all other appurtenant areas and improvements provided by
Landlord for the common use of Landlord and tenants and their respective
employees and invitees, including without limitation, parking areas and
structures, driveways, sidewalks, landscaped and planted areas, hallways and
interior stairwells not located within the premises of any tenant, common
entrances and lobbies, elevators and restrooms not located within the premises
of any tenant.
SECTION 6.3 USE OF COMMON FACILITIES. The occupancy by Tenant of the
Premises shall include the use of the Common Facilities in common with Landlord
and with all others for whose convenience and use the Common Facilities may be
provided by Landlord, subject, however, to compliance with all rules and
regulations as are prescribed from time to time by Landlord. Landlord shall
operate and maintain the Common Facilities in the manner Landlord may determine
to be appropriate. Landlord shall, at all times during the Term, have exclusive
control of the Common Facilities and may restrain any use or occupancy, except
as authorized by Landlord's rules and regulations. Tenant shall keep the Common
Facilities clear of any obstruction or unauthorized use related to Tenant's
operations.
6.
Nothing in this Lease shall be deemed to impose liability upon Landlord for any
damage to or loss of the property of, or for any injury to Tenant, its invitees
or employees. Landlord may temporarily close any portion of the Common
Facilities for repairs, remodeling and/or alterations to prevent a public
dedication or the accrual of prescriptive rights or for any other reason deemed
sufficient by Landlord.
SECTION 6.4 CHANGES AND ADDITIONS BY LANDLORD. Landlord reserves the right
to make alterations or additions to the Office Building or to the attendant
fixtures, equipment and Common Facilities. Landlord may, at any time, relocate
or remove any of the various buildings, parking areas and other Common
Facilities, and may add buildings and areas from time to time. No change shall
entitle Tenant to any abatement of rent or other claim against Landlord,
provided that the change does not deprive Tenant of reasonable access to or use
of the Premises.
ARTICLE VII. MAINTAINING THE PREMISES
SECTION 7.1 TENANT'S MAINTENANCE AND REPAIR. When and if needed or
whenever requested by Landlord, Tenant, at its sole expense, shall make all
repairs and replacements necessary to keep the Premises in the condition as
existed on the Commencement Date (or on any later date that the improvements may
have been installed), excepting ordinary wear and tear. All repairs and
replacements shall be at least equal in quality to the original work, shall be
made only by a licensed bonded contractor approved in writing in advance by
Landlord, and shall be made only at the time or times approved by Landlord. Any
contractor utilized by Tenant shall be subject to Landlord's standard
requirements for contractors, as modified from time to time. Landlord may impose
reasonable restrictions and requirements with respect to repairs, as provided in
Section 7.3, and the provisions of Section 7.4 shall apply to all repairs.
Alternatively, Landlord may elect to make any such repair on behalf of Tenant
and at Tenants expense, and Tenant shall promptly reimburse Landlord for all
costs incurred upon submission of an invoice.
SECTION 7.2 LANDLORD'S MAINTENANCE AND REPAIR
(a) Subject to Section 7.1 and Article XI, Landlord shall provide service,
maintenance and repair with respect to any air conditioning, ventilating or
heating equipment which serves the Premises and shall maintain in good repair
the roof, foundations, footings, the exterior surfaces of the exterior walls of
the Office Building, and the structural, electrical and mechanical systems,
except that Tenant, at its expense, shall make all repairs which Landlord deems
reasonably necessary as a result of the act or negligence of Tenant, its agents,
employees, invitees, subtenants or contractors. Landlord shall have the right to
employ or designate any reputable person or firm, including any employee or
agent of Landlord or any of Landlord's affiliates or divisions, to perform any
service, repair or maintenance function. Landlord need not make any other
improvements or repairs, except as specifically required under this Lease, and
nothing contained in this Section shall limit Landlord's right to reimbursement
from Tenant for maintenance, repair costs and replacement costs as provided
elsewhere in this Lease. Tenant understands that it shall not make repairs at
Landlord's expense or by rental offset.
(b) Except as provided in Sections 11.1 and 12.1 below, there shall be no
abatement of rent and no liability of Landlord by reason of any injury to or
interference with Tenant's business arising from the making of any repairs,
alterations or improvements to any portion of the Office Building, including
repairs to the Premises, nor shall any related activity by Landlord constitute
an actual or constructive eviction; provided, however, that in making repairs,
alterations or improvements, Landlord shall interfere as little as reasonably
practicable with the conduct of Tenants business in the Premises.
SECTION 7.3 ALTERATIONS. Tenant shall make no alterations, additions or
improvements to the Premises without the prior written consent of Landlord,
which consent shall not be unreasonably withheld. If any such improvement
requires approval by or notice to the lessor of a superior lease or the holder
of a mortgage, no work shall proceed until such approval has been received or
such notice has been given. Landlord may impose, as a condition to its consent;
any requirements that Landlord, in its discretion, may deem reasonable or
desirable, including but not limited to a requirement that all work be covered
by a lien and completion bond satisfactory to Landlord and
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requirements as to the manner, time and contractor for performance of the work.
Landlord may require that Tenant enter into an agreement with Landlord for the
work to be performed by Landlord's contractor, in which event Tenant shall pay
to Landlord, in advance as additional rent, the cost of construction as
estimated by Landlord with, a final reconciliation payment to be made by the
appropriate party upon completion of the work. Should Landlord authorize Tenant
to perform the work with a contractor approved by Landlord, Tenant shall obtain
all required permits for the work and shall perform the work in compliance with
all applicable laws, regulations and ordinances. Under no circumstances shall
Tenant make any improvement which incorporates asbestos-containing construction
materials into the Premises. Any request for Landlord's consent shall be made in
writing and shall contain architectural plans describing the work in detail
reasonably satisfactory to Landlord. Unless Landlord otherwise agrees in
writing, all alterations, additions or improvements affixed to the Premises
(excluding moveable trade fixtures and furniture) shall become the property of
Landlord and shall be surrendered with the Premises at the end of the Term,
except that Landlord may, by notice to Tenant given at the time of Landlord's
consent to the alteration or improvement, require Tenant to remove by the
Expiration Date or sooner termination date of this Lease all or any alterations,
decorations, fixtures, additions, improvements and the like installed either by
Tenant or by Landlord at Tenant's request, and to repair any damage to the
Premises arising from that removal. Landlord may require Tenant to remove an
improvement provided as part of the initial build-out pursuant to Exhibit E, if
any, if and only if the improvement is a non-building standard item and Tenant
is notified of the requirement prior to the build-out. Within thirty (30) days
after completion of Tenant's alterations requiring the submission of plans to
Landlord, Tenant shall furnish to Landlord a complete set of "as-built" plans
and specifications.
SECTION 7.4 MECHANIC'S LIENS. Tenant shall keep the Premises free from any
liens arising out of any work performed, materials furnished or obligations
incurred by or for Tenant. Upon request by Landlord, Tenant shall promptly cause
any such lien to be released by posting a bond in accordance with California
Civil Code Section 3143 or any successor statute. In the event that Tenant shall
not, within thirty (30) days following the imposition of any lien, cause the
lien to be released of record by payment or posting of a proper bond, Landlord
shall have, in addition to all other available remedies, the right to cause the
lien to be released by any means it deems proper, including payment of or
defense against the claim giving rise to the lien. All expenses so incurred by
Landlord, including Landlord's attorneys' fees, shall be reimbursed by Tenant
promptly following Landlord's demand, together with interest from the date of
payment by landlord at the maximum rate permitted by law until paid. Tenant
shall give Landlord no less than twenty (20) days prior notice in writing before
commencing construction of any kind on the Premises so that Landlord may post
and maintain notices of nonresponsibility on the Premises.
SECTION 7.5 ENTRY AND INSPECTION. Landlord shall at all times have the
right to enter the Premises to inspect them, to supply services in accordance
with this Lease, to protect the interests of Landlord in the Premises, and to
submit the Premises to prospective or actual purchasers or encumbrance holders
or to prospective tenants, all without being deemed to have caused an eviction
of Tenant and without abatement of rent, except as provided elsewhere in this
Lease. Landlord shall at all times have and retain a key which unlocks all of
the doors in the Premises, excluding Tenant's vaults and safes, and Landlord
shall have the right to use any and all means which Landlord may deem proper to
open the doors in an emergency in order to obtain entry to the Premises, and any
entry to the Premises obtained by Landlord shall not, under any circumstances,
be deemed to be a forcible or unlawful entry into or a detainer of the Premises
or any eviction of Tenant from the Premises.
SECTION 7.6 SPACE PLANNING AND SUBSTITUTION. Landlord shall have the
right, upon providing Tenant sixty (60) days written notice, to move Tenant to
other comparable space in the Office Building. The new space shall be
approximately the same size as the Premises and provided with comparable
improvements. Landlord shall pay all of Tenant's reasonable moving expenses
following receipt of invoices from Tenant. If Landlord exercises this right,
this Lease shall remain in effect and be deemed applicable to the new space
except that the Lease shall be appropriately amended to reflect the new space.
ARTICLE VIII. TAXES AND ASSESSMENTS ON TENANT'S PREMISES
8.
Tenant shall be liable for and shall pay, at least ten (10) days before
delinquency, all taxes and assessments levied against all personal property of
Tenant located in the Premises. If any taxes on Tenant's personal property are
levied against Landlord or Landlord's property, and if Landlord pays the same or
if the assessed value of Landlord's property is increased by the inclusion of a
value placed upon the personal property of Tenant, and if Landlord pays the
taxes based upon the increased assessment, Tenant shall pay to Landlord the
taxes so levied against Landlord or the proportion of the taxes resulting from
the increase in the assessment. In calculating what portion of any tax xxxx
which is assessed against Landlord separately or Landlord and Tenant Jointly is
attributable to Tenant's fixtures and personal property, Landlord's reasonable
determination shall be conclusive.
ARTICLE IX. ASSIGNMENT AND SUBLETTING
SECTION 9.1 RIGHTS OF PARTIES.
(a) Notwithstanding any provision of this Lease to the contrary, Tenant
will neither voluntarily nor by operation of law assign, sublet, encumber or
otherwise transfer all or any part of Tenant's interest in this Lease or permit
the Premises to be occupied by anyone other than Tenant without Landlord's prior
written consent, which consent shall not unreasonably be withheld in accordance
with the provisions of Section 9.1. (c). No assignment (whether voluntary,
involuntary or by operation of law) and no subletting shall be valid or
effective without Landlord's prior written consent and at Landlord's election
shall constitute a material default of this Lease. Landlord shall not be deemed
to have given its consent to any assignment or subletting by any other course of
action, including its acceptance of any name for listing in the Office Building
directory. To the extent not prohibited by provisions of the Bankruptcy Code 11
U.S.C. Section 101 et seq. (the Bankruptcy Code), including Section 365(f)(1),
Tenant, on behalf of itself and its creditors, administrators and assigns,
waives the applicability of Section 365(e) of the Bankruptcy Code, unless the
proposed assignee of the Trustee for the estate of the bankrupt meets Landlord's
standard for consent, as set forth in Section 9.1(c) of this Lease. If this
Lease is assigned to any person or entity pursuant to the provisions of the
Bankruptcy Code, any and all monies or other considerations to be delivered in
connection with the assignment, shall be delivered to Landlord, shall be and
remain the exclusive property of Landlord, and shall not constitute property of
Tenant or of the estate of Tenant within the meaning of the Bankruptcy Code. Any
person or entity to which this Lease is assigned pursuant to the provisions of
the Bankruptcy Code shall be deemed to have assumed all of the obligations
arising under this Lease on and after the date of the assignment and shall, upon
demand, execute and deliver to Landlord an instrument confirming that
assumption.
(b) If Tenant or any guarantor of Tenant ("Tenant's Guarantor") is a
corporation or is an unincorporated association or partnership, the transfer of
any stock or interest in the corporation, association or partnership, which
results in a change in the voting control of Tenant or Tenant's Guarantor, if
any, shall be deemed an assignment within the meaning and provisions of this
Article. In addition, any change in the status of the entity, such as but not
limited to the withdrawal of a general partner, shall be deemed an assignment
within the meaning of this Article.
(c) If Tenant desires to transfer an interest in this Lease, it shall
first notify Landlord of its desire and shall submit in writing to Landlord: (i)
the name and address of the proposed transferee; (ii) the nature of any proposed
subtenant's or assignee's business to be carried on in the Premises; (iii) the
terms and provisions of any proposed sublease or assignment; and (iv) any other
information requested by Landlord and reasonably related to the transfer. Except
as provided in Subsection (d) of this Section, Landlord shall not unreasonably
withhold its consent provided: (1) the use of the Premises will be consistent
with the provisions of this Lease and with Landlord's commitment to other
tenants of the Office Building; (2) any profit received by the Tenant from the
assignment or subletting, whether during or after the Term of this Lease, shall
be paid to Landlord when received; (3) at Landlord's election, insurance
requirements shall be brought into conformity with Landlord's then current
leasing practice; (4) any proposed subtenant or assignee demonstrates that it is
financially responsible by submission to Landlord of all reasonable information
as Landlord may request concerning the proposed subtenant or assignee, including
but not limited to a balance sheet of the proposed subtenant or assignee as of a
date within ninety (90) days of the request for Landlord's consent and
statements of income or profit and loss of the proposed subtenant or assignee
for the two-year period preceding the
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request for Landlord's consent; (5) any proposed subtenant or assignee
demonstrates to Landlord's reasonable satisfaction a record of successful
experience in business; (6) the proposed assignee or subtenant is not an
existing tenant of the Office Building; and (7) the proposed transfer will not
impose additional burdens or adverse tax effects on Landlord. If Landlord
consents to the proposed transfer, Tenant may, within ninety (90) days after the
date of the consent, effect the transfer upon the terms described in the
information furnished to Landlord; provided that any material change in the
terms shall be subject to Landlord's consent as set forth in this Section.
Landlord shall approve or disapprove any requested transfer within thirty (30)
days following receipt of Tenant's written request and the information set forth
above.
(d) Notwithstanding the provisions of Subsection (c) above, in lieu of
consenting to a proposed assignment or subletting, Landlord may elect to (i)
sublease the Premises (or the portion proposed to be subleased) or take an
assignment of Tenant's interest in this Lease upon the same terms as offered to
the proposed subtenant or assignee (excluding terms relating to the purchase of
personal property the use of Tenant's name or the continuation of Tenant's
business); or (ii) terminate this Lease as to the portion of the Premises
proposed to be subleased or assigned with a proportionate abatement in the rent
payable under this Lease, effective on the date that the proposed sublease or
assignment would have become effective. Landlord may, thereafter, at its option,
assign or re-let any space so recaptured to any third party, including without
limitation the proposed transferee of Tenant.
(e) Tenant shall pay to Landlord a transfer fee of Five Hundred Dollars
($500.00) if and when any transfer requested by Tenant is approved. In addition,
should Landlord or its agents procure for Tenant a subtenant, assignee or new
tenant for all or part of the Premises; then Tenant shall pay to Landlord,
concurrently with the execution of the conveyancing documents, a leasing fee of
six percent (6%) of the remaining future gross rentals under this Lease.
SECTION 9.2 EFFECT OF TRANSFER. No subletting or assignment, even with the
consent of Landlord, shall relieve Tenant of its obligation to pay rent and to
perform all its other obligations under this Lease. Each assignee, other than
Landlord, shall be deemed to assume all obligations of Tenant under this Lease
and shall be liable, jointly and severally, with Tenant for the payment of all
rent and for the due performance of all of Tenant's obligations under this
Lease. No transfer shall be binding on Landlord unless any document
memorializing the transfer is delivered to Landlord and both the
assignee/subtenant and Tenant deliver to Landlord an executed consent to
transfer instrument prepared by Landlord and consistent with the requirements of
this Article. The acceptance by Landlord of any payment due under this Lease
from any other person shall not be deemed to be a waiver by Landlord of any
provision of this Lease or to be a consent to any transfer. Consent by Landlord
to one or more transfers shall not operate as a waiver or estoppel to the future
enforcement by Landlord of its rights under this Lease.
SECTION 9.3 SUBLEASE REQUIREMENTS. The following terms and conditions
shall apply to any subletting by Tenant of all or any part of the Premises and
shall be included in each sublease:
(a) Tenant hereby irrevocably assigns to Landlord all of Tenant's interest
in all rentals and income arising from any sublease of the Premises and Landlord
may collect such rent and income and apply same toward Tenant's obligations
under this Lease; provided, however, that until a default occurs in the
performance of Tenant's obligations under this Lease, Tenant shall have the
right to receive and collect the sublease rentals. Landlord shall not, by reason
of this assignment or the collection of sublease rentals, be deemed liable to
the subtenant for the performance of any of Tenant's obligations under the
sublease. Tenant hereby irrevocably authorizes and directs any subtenant, upon
receipt of a written notice from Landlord stating that an uncured default exists
in the performance of Tenant's obligations under this Lease, to pay to Landlord
all sums then and thereafter due under the sublease. Tenant agrees that the
subtenant may rely on that notice without any duty of further inquiry and
notwithstanding any notice or claim by Tenant to the contrary. Tenant shall have
no right or claim against the subtenant or Landlord for any rentals so paid to
Landlord.
(b) In the event of the termination of this Lease, Landlord may, at its
sole option, take over Tenant's entire interest in any sublease and, upon notice
from Landlord, the subtenant shall attorn to Landlord. In no event, however,
shall Landlord be liable for any previous act or omission by Tenant under the
sublease or for the return of any advance
10.
rental payments or deposits under the sublease that have not been actually
delivered to Landlord, nor shall Landlord be bound by any sublease modification
executed without Landlord's consent or for any advance rental payment by the
subtenant in excess of one months rent. The general provisions of this Lease,
including without limitation those pertaining to insurance and indemnification,
shall be deemed incorporated by reference into the sublease despite the
termination of this Lease.
(c) Tenant agrees that Landlord may, at its sole option, authorize a
subtenant of the Premises to cure a default by Tenant under this Lease. Should
Landlord accept such cure, the subtenant shall have a right of reimbursement and
offset from and against Tenant under the applicable sublease.
ARTICLE X. INSURANCE AND INDEMNITY
SECTION 10.1 TENANT'S INSURANCE. Tenant, at its sole cost and expense,
shall provide and maintain in effect the insurance described in Exhibit C.
Evidence of that insurance must be delivered to Landlord prior to the
Commencement Date.
SECTION 10.2 LANDLORD'S INSURANCE. Landlord may, at its election, provide
any or all of the following types of insurance with or without deductible and in
amounts and coverages as may be determined by Landlord in its discretion: all
risk property insurance subject to standard exclusions covering the Office
Building, and such other risks as Landlord or its mortgagees may from time to
time deem appropriate, including leasehold improvements made by Landlord and
comprehensive public liability coverage. Landlord shall not be required to
carry insurance of any kind on Tenant's property, including leasehold
improvements, trade fixtures, furnishings, equipment plate glass, signs and all
other items of personal property, and shall not be obligated to repair or
replace that property should damage occur. All proceeds of insurance maintained
by Landlord upon the Office Building shall be the property of Landlord, whether
or not Landlord is obligated to or elects to make any repairs.
SECTION 10.3 TENANT'S INDEMNITY. To the fullest extent permitted by law,
Tenant shall defend, indemnify and hold harmless Landlord, its agents and any
and all affiliates of Landlord, including without limitation any corporations or
other entities controlling, controlled by or under common control with Landlord,
from and against any and all claims, liabilities, costs or expenses arising
either before or after the Commencement Date from Tenant's use or occupancy of
the Premises, the Office Building or the Common Facilities, or from the conduct
of its business or from any activity, work or thing done, permitted or suffered
by Tenant or its agents, employees, invitees or licensees in or about the
Premises, the Office Building or the Common Facilities, or from any default in
the performance of any obligation on Tenant's part to be performed under this
Lease, or from any act or negligence of Tenant or its agents, employees,
visitors, patrons, guests, invitees or licensees. Landlord may, at its option,
require Tenant to assume Landlord's defense in any action covered by this
Section through counsel satisfactory to Landlord.
SECTION 10.4 LANDLORD'S NONLIABILITY. Landlord shall not be liable to
Tenant, its employees, agents and invitees, and Tenant hereby assumes the risk
of and waives all claims against Landlord for loss of or damage to any property
or any injury to any person or loss or interruption of business or income
resulting from, but not limited, to fire, explosion, falling plaster, steam,
gas, electricity, water or rain which may leak or flow from or into any part of
the Premises or from the breakage, leakage, obstruction or other defects of the
pipes, sprinklers, wires, appliances, plumbing, air conditioning, electrical
works, heating and ventilation systems, mechanical equipment, lighting or other
fixtures in the Office Building whether the damage or injury results from
conditions arising in the Premises or in other portions of the Office Building.
It is understood that any such condition may require the temporary evacuation or
closure of all or a portion of the Office Building. Neither Landlord nor its
agents shall be liable for interference with light or other similar intangible
interests. The liability of Landlord to Tenant for any default by Landlord under
this Lease or arising in connection herewith or with Landlord's operation,
management, leasing, repair, renovation, alteration or any other matter relating
to the Property or the Premises shall be limited to the interest of Landlord in
the Office Building and the rental proceeds thereof and Tenant agrees to look
solely to Landlord's interest in the Property for the recovery of judgment
against Landlord, and Landlord shall not be personally liable for any such
judgment or deficiency after
11.
execution thereon. Under no circumstances shall Landlord ever be liable for
consequential or punitive damages, including damages for lost profits or for
business interruption.
ARTICLE XI. DAMAGE OR DESTRUCTION
SECTION 11.1 RESTORATION.
(a) If the Office Building of which the Premises are a part is damaged,
Landlord shall repair that damage as soon as reasonably possible at its expense
unless: (I) the damage is not covered by Landlord's fire and extended coverage
insurance; or (ii) Landlord reasonably determines that the cost of repair would
exceed twenty-five percent (25%) of the full replacement cost of the Office
Building (Replacement Cost); or (iii) Landlord reasonably determines that the
cost of repair would exceed ten percent (10%) of the Replacement Cost and the
damage occurs during the final twelve (12) months of the Term. Should Landlord
elect not to repair the damage for one of the preceding reasons, Landlord shall
so notify Tenant in writing within sixty (60) days after the damage occurs, and
this Lease shall terminate as of the date of this notice;
(b) Unless Landlord elects to terminate this Lease in accordance with
subsection (a) above, this Lease shall continue in effect for the remainder of
the Term; provided that if the damage is so extensive as to reasonably prevent
Tenants substantial use and enjoyment of the Premises for more than nine (9)
months, then Tenant may elect to terminate this Lease by written notice to
Landlord within the sixty-(60)-day period stated in subsection (a).
(c) Commencing on the date of any damage to the Office Building and ending
on the sooner of the date the damage is repaired or the date this Lease is
terminated, the rental to be paid under this Lease shall be abated in the same
proportion that the floor area of the Premises that is rendered unusable by the
damage from time to time bears to the total floor area of the Premises.
(d) Notwithstanding the provisions of subsections (a) (b) and (c) of this
Section, the cost of any repairs shall be borne by Tenant and Tenant shall not
be entitled to rental abatement or termination rights if the damage is due to
the fault or neglect of Tenant or its employees, subtenants, invitees or
representatives. In addition, the provisions of this Section shall not be deemed
to require Landlord to repair any improvements or fixtures that Tenant is
obligated to repair or insure pursuant to any other provision of this Lease.
SECTION 11.2 LEASE GOVERNS. Tenant agrees that the provisions of this
Lease, including without limitation Section 11.1, shall govern any damage or
destruction and shall accordingly, supersede any contrary statute or rule of
law. Tenant irrevocably waives and releases Tenant's rights under California
Civil Code Sections 1932(2), 1933(4) and 1942 as the same may be modified or
replaced hereafter.
ARTICLE XII. EMINENT DOMAIN
SECTION 12.1 TOTAL OR PARTIAL TAKING. If all or a material portion of the
Premises is taken by any lawful authority by exercise of the right of eminent
domain or sold to prevent a taking, either Tenant or Landlord may terminate this
Lease effective as of the date possession is required to be surrendered to the
authority. In the event title to a portion of the Office Building, other than
the Premises, is taken or sold in lieu of taking, and if Landlord elects to
restore the Office Building in such a way as to alter the Premises materially,
either party may terminate this Lease by written notice to the other party
effective on the date of vesting of title. In the event neither party has
elected to terminate this Lease as provided above, then Landlord shall promptly,
after receipt of a sufficient condemnation award, proceed to restore the
Premises to substantially their condition prior to the taking and a
proportionate allowance shall be made to Tenant for the rent corresponding to
the time during which and to the part of the Premises of which Tenant is
deprived on account of the taking and restoration. In the event of a taking,
Landlord shall be entitled to the entire amount of the condemnation award
without deduction for any estate or interest of Tenant; provided that nothing in
this Section shall be deemed to give Landlord any interest in or prevent Tenant
from seeking any award against the taking
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authority for the taking of personal property and fixtures belonging to Tenant
or for relocation or business interruption expenses recoverable from the taking
authority.
SECTION 12.2 TEMPORARY TAKING. No temporary taking of the Premises shall
terminate this Lease or give Tenant any right to abatement of rent, and any
award specifically attributable to a temporary taking of the Premises shall
belong entirely to Tenant. A temporary taking shall be deemed to be a taking of
the use or occupancy of the Premises for a period not to exceed ninety (90)
days.
ARTICLE XIII. SUBORDINATION; ESTOPPEL CERTIFICATE
SECTION 13.1 SUBORDINATION
(a) At the option of Landlord this Lease shall be either superior or
subordinate to all ground or underlying leases, mortgages and deeds of trust, if
any, which may hereafter affect the Office Building, and to all renewals,
modifications, consolidations, replacements and extensions thereof; provided
that so long as Tenant is not in default under this Lease, this Lease shall not
be terminated or Tenant's quiet enjoyment of the Premises disturbed in the event
of termination of any such ground or underlying lease or the foreclosure of any
such mortgage or deed of trust to which Tenant has subordinated this Lease
pursuant to this Section. In the event of a termination or foreclosure,
Tenant shall become a tenant of and attorn to the successor-in-interest to
Landlord upon the same terms and conditions as are contained in this Lease and
shall execute any instrument reasonably required by Landlord's successor for
that purpose. Tenant shall also, upon written request of Landlord, execute and
deliver all instruments as may be required from time to time to subordinate the
rights of Tenant under this Lease to any ground or underlying lease or to the
lien of any mortgage or deed of trust or, if requested by Landlord, to
subordinate in whole or in part any ground or underlying lease or the lien of
any mortgage or deed of trust to this Lease.
(b) Failure of Tenant to execute any statements or instruments necessary
or desirable to effectuate the provisions of this Article within ten (10) days
after written request by Landlord, in any form that Landlord may reasonably
require (including one substantially in the form of Exhibit E hereto), shall
constitute a material default under this Lease. In that event, Landlord, in
addition to any other rights or remedies it might have, shall have the right by
written notice to Tenant to terminate this Lease as of a date not less than
twenty (20) days after the date of Landlord's notice. Landlord's election to
terminate shall not relieve Tenant of any liability for its default.
SECTION 13.2 ESTOPPEL CERTIFICATE
(a) Tenant shall, at any time upon not less than ten (10) days prior
written notice from Landlord, execute, acknowledge and deliver to Landlord, in
any form that Landlord may reasonably require a statement in writing (I)
certifying that this Lease is unmodified and in full force and effect (or if
modified stating the nature of the modification and certifying that this Lease
as modified is in full force and effect), and the dates to which the rental,
additional rent and other charges have been paid in advance, if any, and (ii)
acknowledging that to Tenant's knowledge there are no uncured defaults on the
part of Landlord or specifying each default, if any, are claimed; and (iii)
setting forth all further information that Landlord may reasonably require.
Tenant's statement may be relied upon by any prospective purchaser or
encumbrancer of all or any portion of the Office Building.
(b) Tenant's failure to deliver any estoppel statement within the provided
time shall constitute a default under this Lease and shall be conclusive upon
Tenant that (I) this Lease is in full force and effect without modification,
except as may be represented by Landlord; (ii) there are no uncured defaults in
Landlord's performance; and (iii) not more than one month's rental has been paid
in advance.
ARTICLE XIV. DEFAULTS AND REMEDIES
SECTION 14.1 TENANT'S DEFAULTS. In addition to any other event of default
set forth in this Lease.
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the occurrence of any one or more of the following events shall constitute a
default by Tenant:
(a) The failure by Tenant to make any payment of rent or additional rent
required to be made by Tenant, as and when due. For purposes of these default
and remedy provisions, the term additional rent shall be deemed to include all
amounts of any type whatsoever other than Basic Rent to be paid by Tenant
pursuant to the terms of this Lease.
(b) Assignment, sublease, encumbrance or other transfer of the Lease by
Tenant, either voluntarily or by operation of law, whether by judgment,
execution, transfer by intestacy or testacy, or other means without the prior
written consent of Landlord.
(c) The discovery by Landlord that any financial statement provided by
Tenant or by any affiliate, successor or guarantor of Tenant was materially
false.
(d) The failure or inability by Tenant to observe or perform any of the
express or implied covenants or provisions of this Lease to be observed or
performed by Tenant, other than as specified in any other subsection of this
Section, where the failure continues for a period of thirty (30) days after
written notice from Landlord to Tenant; provided, however, that any such notice
shall be in lieu of and not in addition to any notice required under California
Code of Civil Procedure Sections 1161 and 1161(a), as amended. However, if the
nature of the failure is such that more than thirty (30) days are reasonably
required for its cure, then Tenant shall not be deemed to be in default if
Tenant commences the cure within thirty (30) days and thereafter diligently
pursues the cure to completion.
(e) (i) The making by Tenant of any general assignment for the benefit of
creditors; (ii) the filing by or against Tenant of a petition to have Tenant
adjudged a Chapter 7 debtor under the Bankruptcy Code or to have debts
discharged or a petition for reorganization or arrangement under any law
relating to bankruptcy (unless, in the case of a petition filed against Tenant,
the same is dismissed within sixty [60] days); (iii) the appointment of a
trustee or receiver to take possession of substantially all of Tenant's assets
located at the Premises or of Tenant's interest in this Lease, if possession is
not restored to Tenant within thirty (30) days; (iv) the attachment, execution
or other judicial seizure of substantially all of Tenants assets located at the
Premises or of Tenant's interest in this Lease where the seizure is not
discharged within thirty (30) days; or (v) Tenant's convening of a meeting of
its creditors for the purpose of effecting a moratorium upon or composition of
its debts. Landlord shall not be deemed to have knowledge of any event described
in this subsection unless notification in writing is received by Landlord, nor
shall there be any presumption attributable to Landlord of Tenant's insolvency.
In the event that any provision of this subsection is contrary to applicable
law, the provision shall be of no force or effect.
(f) The Tenant's failure to take possession of the Premises or to occupy
same within sixty days after the Commencement Date.
SECTION 14.2 LANDLORD'S REMEDIES.
(a) In the event of any default by Tenant or in the event of the
abandonment of the Premises by Tenant, then, in addition to any other remedies
available to Landlord, Landlord may exercise the following remedies:
(i) Landlord may terminate Tenant's right to possession of the
Premises by any lawful means in which case this Lease shall terminate and Tenant
shall immediately surrender possession of the Premises to Landlord. Such
termination shall not affect any accrued obligations of Tenant under this Lease.
Upon termination, Landlord shall have the right to reenter the Premises and
remove all persons and property. Landlord shall also be entitled to recover from
Tenant:
(1) The worth at the time of award of the unpaid rent and
additional rent which had been earned at the time of termination;
14.
(2) The worth at the time of award of the amount by which the
unpaid rent and additional rent, which would have been earned after termination
until the time of award, exceeds the amount of such loss that Tenant proves
could have been reasonably avoided;
(3) The worth at the time of award of the amount by which the
unpaid rent and additional rent for the balance of the Term after the time of
award exceeds the amount of such loss that Tenant proves could be reasonably
avoided;
(4) Any other amount necessary to compensate Landlord for all
the detriment proximately caused by Tenant's failure to perform its obligations
under this Lease or which, in the ordinary course of things, would be likely to
result from Tenant's default, including but not limited to the cost of
recovering possession of the Premises, commissions and other expenses of
reletting, including necessary repair, renovation, improvement and alteration of
the Premises for a new tenant, the unamortized portion of any tenant
improvements and brokerage commissions funded by Landlord in connection with
this Lease, the value of any free rent or other rental and monetary concessions
made or extended for or on behalf of Tenant (including, without limitation,
moving allowances and lease termination payments), reasonable attorneys' fees
and any other reasonable costs; and
(5) At Landlord's election all other amounts in addition to or
in lieu of the foregoing as may be permitted by law. The term rent, as used in
this Lease, shall be deemed to mean the Basic Rent and all other sums required
to be paid by Tenant to Landlord pursuant to the terms of this Lease. Any sum
other than Basic Rent shall be computed on the basis of the average monthly
amount accruing during the twenty-four (24) month period immediately prior to
default, except that if it becomes necessary to compute such rental before the
twenty-four (24) month period has occurred, then the computation shall be on the
basis of the average monthly amount during the shorter period. As used in
subparagraphs (1) and (2) above, the worth at the time of award shall be
computed by allowing interest at the rate of ten percent (10%) per annum. As
used in subparagraph (3) above, the worth at the time of award shall be
computed by discounting the amount at the discount rate of the Federal Reserve
Bank of San Francisco at the time of award plus one percent (1%).
(ii) Landlord may elect not to terminate Tenant's right to possession
of the Premises in which event Landlord may continue to enforce all of its
rights and remedies under this Lease, including the right to collect all rent as
it becomes due. Efforts by the Landlord to maintain, preserve or relet the
Premises, or the appointment of a receiver to protect the Landlord's interests
under this Lease, shall not constitute a termination of the Tenant's right to
possession of the Premises. In the event that Landlord elects to avail itself of
the remedy provided by this subsection (ii), Landlord shall not unreasonably
withhold its consent to an assignment or subletting of the Premises subject to
the reasonable standards for Landlord's consent as are contained in this Lease.
(b) Landlord shall be under no obligation to observe or perform any
covenant of this Lease on its part to be observed or performed which accrues
after the date of any default by Tenant unless and until the default is cured by
Tenant. The various rights and remedies reserved to Landlord in this Lease or
otherwise shall be cumulative and, except as otherwise provided by California
law, Landlord may pursue any or all of its rights and remedies at the same time.
(c) No delay or omission of Landlord to exercise any right or remedy shall
be construed as a waiver of the right or remedy or of any default by Tenant.
The acceptance by Landlord of rent shall not be a (i) waiver of any preceding
breach or default by Tenant of any provision of this Lease, other than the
failure of Tenant to pay the particular rent accepted regardless of Landlord's
knowledge of the preceding breach or default at the time of acceptance of rent;
or (ii) a waiver of Landlord's right to exercise any remedy available to
Landlord by virtue of the breach or default. The acceptance of any payment from
a debtor-in-possession, a trustee, a receiver or any other person acting on
behalf of Tenant or Tenant's estate, shall not waive or cure a default under
Section 14.1. No payment by Tenant or receipt by Landlord of a lesser amount
than the rent required by this Lease shall be deemed to be other than a partial
payment on account of the earliest due stipulated rent, nor shall any
endorsement or Statement on any check or letter be deemed an accord and
satisfaction, and Landlord shall accept the check or payment without prejudice
to Landlord's
15.
judgment from any other asset of Landlord under any circumstances. Tenant
acknowledges that this limitation on Landlord's liability has been separately
bargained for and that Landlord would not enter into this Lease in the absence
of this provision.
SECTION 14.6 EXPENSES AND LEGAL FEES. Should either Landlord or Tenant
bring any action in connection with this Lease, the prevailing party shall be
entitled to recover, as a part of the action, its reasonable attorneys' fees and
all other costs. The prevailing party, for the purpose of this paragraph, shall
be determined by the trier of the facts.
SECTION 14.7 WAIVER OF JURY TRIAL. LANDLORD AND TENANT EACH ACKNOWLEDGES
THAT IT IS AWARE OF AND HAS HAD THE ADVICE OF COUNSEL OF ITS CHOICE WITH RESPECT
TO ITS RIGHTS TO TRIAL BY JURY AND EACH PARTY DOES HEREBY EXPRESSLY AND
KNOWINGLY WAIVE AND RELEASE ALL SUCH RIGHTS TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER PARTY HERETO AGAINST THE OTHER ON
ANY MATTERS WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS LEASE,
TENANT'S USE OR OCCUPANCY OF THE PREMISES AND/OR ANY CLAIM OF INJURY OR DAMAGE.
LANDLORD TENANT
---- /s/ [SIGNATURE ILLEGIBLE]^^
---------------------------
ARTICLE XV. END OF TERM
SECTION 15.1 HOLDING OVER. This Lease shall terminate without further
notice upon the expiration of the Term, and any holding over by Tenant after the
expiration shall not constitute a renewal or extension of this Lease or give
Tenant any rights under this Lease, except when in writing signed by both
parties. If Tenant holds over for any period after the expiration (or earlier
termination) of the Term, Landlord may, at its option, treat Tenant as a tenant
at sufferance only commencing on the first (1st) day following the termination
of this Lease and subject to all of the terms of this Lease, except that the
monthly rental shall be the greater of (a) one hundred fifty percent (150%) of
the total monthly rental for the month immediately preceding the date of
termination, or (b) the then currently-scheduled rent for comparable space in
the Office Building. If Tenant fails to surrender the Premises upon the
expiration of this Lease, despite demand to do so by Landlord, Tenant shall
indemnify and hold Landlord harmless from all loss or liability, including
without limitation any claims made by any succeeding tenant relating to such
failure to surrender. Acceptance by Landlord of rent after the termination shall
not constitute a consent to a holdover or result in a renewal of this Lease. The
foregoing provisions of this Section are in addition to and do not affect
Landlord's right of re-entry or any other rights of Landlord under this Lease or
at law.
SECTION 15.2 MERGER ON TERMINATION. The voluntary or other surrender of
this Lease by Tenant or a mutual termination of this Lease shall terminate any
or all existing subleases unless Landlord, at its option, elects in writing to
treat the surrender or termination as an assignment to it of any or all
subleases affecting the Premises.
SECTION 15.3 SURRENDER OF PREMISES; REMOVAL OF PROPERTY. Upon the
Expiration Date or upon any earlier termination of this Lease, Tenant shall quit
and surrender possession of the Premises to Landlord in as good order, condition
and repair as when received or as hereafter may be improved by Landlord or
Tenant, reasonable wear and tear and repairs which are Landlord's obligation
excepted, and shall, without expense to Landlord, remove or cause to be removed
from the Premises all personal property and debris, except for any items that
Landlord may by written authorization allow to remain. Tenant shall repair all
damage to the Premises resulting from the removal, which repair shall include
the patching and filling of holes and repair of structural damage, provided that
Landlord may instead elect to repair any structural damage at Tenant's expense.
If Tenant shall fail to comply with the provisions of this Section, Landlord may
effect the removal and/or make any repairs, and the cost to Landlord shall be
additional rent payable by Tenant upon demand. If requested by Landlord, Tenant
shall execute, acknowledge and deliver to Landlord
17.
an instrument in writing releasing and quitclaiming to Landlord all right, title
and interest of Tenant in the Premises.
ARTICLE XVI. PAYMENTS AND NOTICES
All sums payable by Tenant to Landlord shall be paid without deduction or
offset in lawful money of the United States to Landlord at its address set forth
in Item 12 of the Basic Lease Provisions or at any other place as Landlord may
designate in writing. Unless this Lease expressly provides otherwise, as for
example in the payment of rent pursuant to Section 4.1, all payments shall be
due and payable within five (5) days after demand. All payments requiring
proration shall be prorated on the basis of a thirty-(30)-day month and a three
hundred sixty-(360)-day year. Any notice, election, demand, consent, approval,
or other communication to be given or other document to be delivered by either
party to the other may be delivered in person or by courier to the other party
or may be deposited in the United States mail, duly registered or certified
postage prepaid return receipt requested, and addressed to the other party at
the address set forth in Item 12 of the Basic Lease Provisions, or if to Tenant
at that address or from and after the Commencement Date at the Premises (whether
or not Tenant has departed from abandoned or vacated the Premises). Either party
may, by written notice to the other served in the manner provided in this
Article, designate a different address. If any notice or other document is sent
by mail it shall be deemed served or delivered twenty-four (24) hours after
mailing. If more than one person or entity is named as Tenant under this Lease
service of any notice upon any one of them shall be deemed as service upon all
of them.
ARTICLE XVII. RULES AND REGULATIONS
Tenant agrees to observe faithfully and comply strictly with the Rules and
Regulations, attached as Exhibit D, and any reasonable and nondiscriminatory
amendments, modifications and/or additions as may be adopted and published by
written notice to tenants by Landlord for the safety, care, security, good order
or cleanliness of the Premises, Office Building, and Common Facilities. Landlord
shall not be liable to Tenant for any violation of the Rules and Regulations or
the breach of any covenant or condition in any lease by any other tenant. One or
more waivers by Landlord of any breach of the Rules and Regulations by Tenant or
by any other tenant(s) shall not be a waiver of any subsequent breach of that
rule or any other. Tenant's failure to keep and observe the Rules and
Regulations shall constitute a default under this Lease. In the case of any
conflict between the Rules and Regulations and this Lease, this Lease shall be
controlling.
ARTICLE XVIII. BROKER'S COMMISSION
The parties recognize as the broker(s) who negotiated this Lease the
firm(s), if any, whose name(s) is (are) stated in Item 10 of the Basic Lease
Provisions and agree that Landlord shall be responsible for the payment of
brokerage commissions to those broker(s). Tenant warrants that it has had no
dealings with any other real estate broker or agent in connection with the
negotiation of this Lease and Tenant agrees to indemnify and hold Landlord
harmless from any cost expense or liability (including reasonable attorneys'
fees) for any compensation, commissions or charges claimed by any other real
estate broker or agent employed or claiming to represent or to have been
employed by Tenant in connection with the negotiation of this Lease. The
foregoing agreement shall survive the termination of this Lease.
ARTICLE XIX. TRANSFER OF LANDLORD'S INTEREST
In the event of any transfer of Landlord's Interest in the Premises, the
transferor shall be automatically relieved of all obligations on the part of
landlord accruing under this Lease from and after the date of the transfer,
provided that any funds held by the transferor, in which Tenant has an interest,
shall be turned over, subject to that interest to the transferee, and Tenant is
notified of the transfer as required by law. No holder of a mortgage and/or deed
of trust to which this Lease is or may be subordinate, and no landlord under a
so-called sale-leaseback, shall be responsible in connection with the Security
Deposit unless the mortgagee or holder of the deed of trust or the landlord
actually receives the Security Deposit. It is intended that the covenants and
obligations contained in this Lease on the part of Landlord shall subject to the
foregoing, be binding on Landlord, its successors and assigns only during and in
respect to their respective successive periods of ownership.
18.
ARTICLE XX. INTERPRETATION
SECTION 20.1 GENDER AND NUMBER. Whenever the context of this Lease
requires, the words "Landlord" and "Tenant" shall include the plural as well as
the singular, and words used in neuter, masculine or feminine genders shall
include the others.
SECTION 20.2 HEADINGS. The captions and headings of the articles and
sections of this Lease are for convenience only are not a part of this Lease and
shall have no effect upon its construction or interpretation.
SECTION 20.3 JOINT AND SEVERAL LIABILITY. If more than one person or
entity is named as Tenant, the obligations imposed upon each shall be joint and
several, and the act of or notice from or notice or refund to or the signature
of any one or more of them shall be binding on all of them with respect to the
tenancy of this Lease, including but not limited to any renewal extension,
termination or modification of this Lease.
SECTION 20.4 SUCCESSORS. Subject to Articles IX and XIX, all rights and
liabilities given to or imposed upon Landlord and Tenant shall extend to and
bind their respective heirs, executors, administrators, successors and assigns.
Nothing contained in this Section is intended or shall be construed to grant to
any person other than Landlord and Tenant and their successors and assigns any
rights or remedies under this Lease.
SECTION 20.5 TIME OF ESSENCE. Time is of the essence with respect to the
performance of every provision of this Lease in which time of performance is a
factor.
SECTION 20.6 CONTROLLING LAW. This Lease shall be governed by and
interpreted in accordance with the laws of the State of California.
SECTION 20.7 SEVERABILITY. If any term or provision of this Lease, the
deletion of which would not adversely affect the receipt of any material benefit
by either party or the deletion of which is consented to by the party adversely
affected, shall be held invalid or unenforceable to any extent, the remainder of
this Lease shall not be affected and each term and provision of this Lease shall
be valid and enforceable to the fullest extent permitted by law.
SECTION 20.8 WAIVER AND CUMULATIVE REMEDIES. One or more waivers by
Landlord or Tenant of any breach of any term, covenant or condition contained in
this Lease shall not be a waiver of any subsequent breach of the same or any
other term, covenant or condition. Consent to any act by one of the parties
shall not be deemed to render unnecessary the obtaining of that party's consent
to any subsequent act. No breach by Tenant of this Lease shall be deemed to have
been waived by Landlord unless the waiver is in a writing signed by Landlord.
The rights and remedies of Landlord under this Lease shall be cumulative and in
addition to any and all other rights and remedies which Landlord may have.
SECTION 20.9 INABILITY TO PERFORM. In the event that either party shall
be delayed or hindered in or prevented from the performance of any work or in
performing any act required under this Lease by reason of any cause beyond the
reasonable control of that party, then the performance of the work or the doing
of the act shall be excused for the period of the delay and the time for
performance shall be extended for a period equivalent to the period of the
delay. The provisions of this Section shall not operate to excuse Tenant from
the prompt payment of rent or from the timely performance of any other
obligation under this Lease within Tenants reasonable control.
SECTION 20.10 ENTIRE AGREEMENT. This Lease, and its exhibits and other
attachments, cover in full each and every agreement of every kind between the
parties concerning the Premises, the Office Building,, and all preliminary
negotiations, oral agreements, understandings and/or practices, except those
contained in this Lease, are superseded and of no further effect. Tenant waives
its rights to rely on any representations or promises made by Landlord or others
which are not contained in this Lease. No verbal agreement or implied covenant
shall be held to modify the provisions of this Lease, any statute, law or custom
to the contrary notwithstanding.
19.
ARTICLE XX. INTERPRETATION
SECTION 20.1 GENDER AND NUMBER. Whenever the context of this Lease
requires, the words "Landlord" and "Tenant" shall include the plural as well as
the singular, and words used in neuter, masculine or feminine genders shall
include the others.
SECTION 20.2 HEADINGS. The captions and headings of the articles and
sections of this Lease are for convenience only are not a part of this Lease and
shall have no effect upon its construction or interpretation.
SECTION 20.3 JOINT AND SEVERAL LIABILITY. If more than one person or
entity is named as Tenant, the obligations imposed upon each shall be joint and
several, and the act of or notice from or notice or refund to or the signature
of any one or more of them shall be binding on all of them with respect to the
tenancy of this Lease, including but not limited to any renewal extension,
termination or modification of this Lease.
SECTION 20.4 SUCCESSORS. Subject to Articles IX and XIX, all rights and
liabilities given to or imposed upon Landlord and Tenant shall extend to and
bind their respective heirs, executors, administrators, successors and assigns.
Nothing contained in this Section is intended or shall be construed to grant to
any person other than Landlord and Tenant and their successors and assigns any
rights or remedies under this Lease.
SECTION 20.5 TIME OF ESSENCE. Time is of the essence with respect to the
performance of every provision of this Lease in which time of performance is a
factor.
SECTION 20.6 CONTROLLING LAW. This Lease shall be governed by and
interpreted in accordance with the laws of the State of California.
SECTION 20.7 SEVERABILITY. If any term or provision of this Lease, the
deletion of which would not adversely affect the receipt of any material benefit
by either party or the deletion of which is consented to by the party adversely
affected, shall be held invalid or unenforceable to any extent, the remainder of
this Lease shall not be affected and each term and provision of this Lease shall
be valid and enforceable to the fullest extent permitted by law.
SECTION 20.8 WAIVER AND CUMULATIVE REMEDIES. One or more waivers by
Landlord or Tenant of any breach of any term, covenant or condition contained in
this Lease shall not be a waiver of any subsequent breach of the same or any
other term, covenant or condition. Consent to any act by one of the parties
shall not be deemed to render unnecessary the obtaining of that party's consent
to any subsequent act. No breach by Tenant of this Lease shall be deemed to have
been waived by Landlord unless the waiver is in a writing signed by Landlord.
The rights and remedies of Landlord under this Lease shall be cumulative and in
addition in any and all other rights and remedies which Landlord may have.
SECTION 20.9 INABILITY TO PERFORM. In the event that either party shall
be delayed or hindered in or prevented from the performance of any work or in
performing any act required under this Lease by reason of any cause beyond the
reasonable control of that party, then the performance of the work or the doing
of the act shall be excused for the period of the delay and the time for
performance shall be extended for a period equivalent to the period of the
delay. The provisions of this Section shall not operate to excuse Tenant from
the prompt payment of rent or from the timely performance of any other
obligation under this Lease within Tenant's reasonable control.
SECTION 20.10 ENTIRE AGREEMENT. This Lease, and its exhibits and other
attachments, cover in full each and every agreement of every kind between the
parties concerning the Premises, the Office Building,, and all preliminary
negotiations, oral agreements, understandings and/or practices, except those
contained in this Lease, are superseded and of no further effect. Tenant waives
its rights to rely on any representations or promises made by Landlord or others
which are not contained in this Lease. No verbal agreement or implied covenant
shall be held to modify the provisions of this Lease, any statute, law or custom
to the contrary notwithstanding.
19.
SECTION 20.11 QUIET ENJOYMENT. Upon the observance and performance of all
the covenants, terms and conditions on Tenant's part to be observed and
performed and subject to the other provisions of this Lease, Tenant shall
peaceably and quietly hold and enjoy the Premises for the Term without hindrance
or interruption by Landlord or any other person claiming by or through Landlord.
SECTION 20.12 SURVIVAL. All covenants of Landlord or Tenant which
reasonably would be intended to survive the expiration or sooner termination of
this Lease, including without limitation any warranty or indemnity hereunder,
shall so survive and continue to be binding upon and inure to the benefit of the
respective parties and their successors and assigns.
ARTICLE XXI. EXECUTION AND RECORDING
SECTION 21.1 COUNTERPARTS. This Lease may be executed in one or more
counterparts each of which shall constitute an original and all of which shall
be one and the same agreement.
SECTION 21.2 CORPORATE AND PARTNERSHIP AUTHORITY. If Tenant is a
corporation or partnership, each individual executing this Lease on behalf of
the corporation or partnership represents and warrants that he is duly
authorized to execute and deliver this Lease on behalf of the corporation or
partnership and that this Lease is binding upon the corporation or partnership
in accordance with its terms. Tenant, shall at Landlord's request, deliver a
certified copy of its board of directors' resolution or partnership agreement or
certificate authorizing or evidencing the execution of this Lease.
SECTION 21.3 EXECUTION OF LEASE; NO OPTION OR OFFER. The submission of
this Lease to Tenant shall be for examination purposes only and shall not
constitute an offer to or option for Tenant to lease the Premises. Execution of
this Lease by Tenant and its return to Landlord shall not be binding upon
Landlord, notwithstanding any time interval, until Landlord has, in fact,
executed and delivered this Lease to Tenant, it being intended that this Lease
shall only become effective upon execution by Landlord and delivery of a fully
executed counterpart to Tenant.
SECTION 21.4 RECORDING. Tenant shall not record this Lease without the
prior written consent of Landlord. Tenant, upon the request of Landlord, shall
execute and acknowledge a short form memorandum of this Lease for recording
purposes.
SECTION 21.5 AMENDMENTS. No amendment or termination of this Lease shall
be effective unless in writing signed by authorized signatories of Tenant and
Landlord, or by their respective successors-in-interest. No actions, policies,
oral or informal arrangements, business dealings or other course of conduct by
or between the parties shall be deemed to modify this Lease in any respect.
ARTICLE XXII. MISCELLANEOUS
SECTION 22.1 NONDISCLOSURE OF LEASE TERMS. Tenant acknowledges and agrees
that the terms of this Lease are confidential and constitute proprietary
information of Landlord. Disclosure of the terms could adversely affect the
ability of Landlord to negotiate other leases and impair Landlord's relationship
with other tenants. Accordingly, Tenant agrees that it and its partners,
officers, directors, employees and attorneys shall not intentionally and
voluntarily disclose the terms and conditions of this Lease to any other tenant
or apparent prospective tenant of the Office Building, either directly or
indirectly, without the prior written consent of Landlord; provided, however,
that Tenant may disclose the terms to prospective subtenants or assignees under
this Lease.
SECTION 22.2 REPRESENTATIONS BY TENANT. The application, financial
statements, and tax returns, if any, submitted and certified to by Tenant as an
accurate representation of its financial condition have been prepared, certified
and submitted to Landlord as an inducement and consideration to Landlord to
enter into this Lease. The
20.
EXHIBIT A
SAN MATEO BUSINESS CENTER
Suite 360
[FLOOR PLAN]
Exhibit A-1
EXHIBIT B
UTILITIES AND SERVICES
The following standards for utilities and sentences shall be in effect at
the Office Building. Landlord reserves the right to adopt nondiscriminatory
modifications and additions to these standards. In the case of any conflict
between these standards and the Lease, the Lease shall be controlling. Subject
to all of the provisions of the Lease, including but not limited to the
restrictions contained in Section 6.1, the following shall apply:
1. Landlord shall furnish to the Premises during the hours of 8:00 a.m.
to 6:00 p.m., Monday through Friday and 8:00 a.m. to 2:00 p.m., Saturday,
generally recognized national holidays, and Sundays excepted, reasonable air
conditioning, heating and ventilation services. Subject to the provisions set
forth below, Landlord shall also furnish the Office Building with elevator
service (if applicable), reasonable amounts of electric current for normal
lighting by Landlord's standard, overhead fluorescent and incandescent fixtures
and for fractional horsepower office machines, and water for lavatory and
drinking purposes. Tenant will not, without the prior written consent of
Landlord, consume electricity in the Premises at a level in excess of 3 xxxxx
per square foot or otherwise increase the amount of electricity, gas or water
usually furnished or supplied for use of the Premises as general office space;
nor shall Tenant connect any apparatus machine or device with water pipes or
electric current (except through existing electrical outlets in the Premises)
for the purpose of using electric current or water. This paragraph shall, at all
times, be subject to applicable governmental regulations.
2. Upon written request from Tenant delivered to Landlord at least 72
hours prior to the period for which service is requested, but during normal
business hours, Landlord will provide any of the foregoing building services to
Tenant at such time when such services are not otherwise available. Tenant
agrees to pay Landlord for those after-hour services at rates that Landlord may
establish from time to time. In addition, Landlord may impose a reasonable
charge for any excessive use of any utilities or services or for any substantial
recurrent use of the Premises at any time other than generally recognized
business hours of generally recognized business days. If Tenant requires
electric current in excess of that which Landlord is obligated to furnish under
this Exhibit B, Tenant shall first obtain the consent of Landlord and Landlord
may cause an electric current meter to be installed in the Premises to measure
the amount of electric current consumed. The cost of installation, maintenance
and repair of the meter shall be paid for by Tenant, and Tenant shall reimburse
Landlord promptly upon demand for all electric current consumed for any special
power use as shown by the meter. The reimbursement shall be at the rates charged
for electrical power by the local public utility furnishing the current plus any
additional expense incurred in keeping account of the electric current consumed.
3. If any lights, machines or equipment (including without limitation
electronic data processing machines) are used by Tenant in the Premises which
materially affect the temperature otherwise maintained by the air conditioning
system or generate substantially more heat in the Premises than would be
generated by the building standard lights and usual fractional horsepower office
equipment, Landlord shall have the right, at its election, to install or modify
any machinery and equipment to the extent Landlord reasonably deems necessary to
restore temperature balance. The cost of installation and any additional cost of
operation and maintenance shall be paid by Tenant to Landlord promptly upon
demand.
4. Landlord shall furnish water for drinking, personal hygiene, and
lavatory purposes only. If Tenant requires or uses water for any purposes in
addition to ordinary drinking, cleaning and lavatory purposes, Landlord may, in
its discretion, install a water meter to measure Tenant's water consumption.
Tenant shall pay Landlord for the cost of the meter and the cost of its
installation and for consumption throughout the duration of Tenant's occupancy.
Tenant shall keep the meter and installed equipment in good working order and
repair at Tenant's own cost and expense, in default of which Landlord may cause
the meter to be replaced or repaired at Tenant's expense. Tenant agrees to pay
for water consumed as shown on the meter and when bills are rendered, and on
Tenant's default in making that payment, Landlord may pay the charges on behalf
of Tenant. Any costs or expenses or payments made by Landlord for any of the
reasons or purposes stated above shall be deemed to be additional rent payable
by Tenant to Landlord upon demand.
Exhibit B-1
5. In the event that any utility service to the Premises is separately
metered or billed to Tenant, Tenant shall pay all charges for that utility
service to the Premises and the cost of furnishing the utility to tenant suites
shall be excluded from the Operating Expenses as to which reimbursement from
Tenant is required in the Lease. If any utility charges are not paid when due
Landlord may pay them, and any amounts paid by Landlord shall immediately become
due to Landlord from Tenant as additional rent. If Landlord elects to furnish
any utility service to the Premises, Tenant shall purchase its requirements of
that utility from Landlord as long as the rates charged by Landlord do not
exceed those which Tenant would be required to pay if the utility service were
furnished it directly by a public utility.
6. Landlord shall provide janitorial services Monday through Friday,
generally recognized national holidays excepted equivalent to that furnished in
comparable office buildings and window washing as reasonably required; provided,
however, that Tenant shall pay for any additional or unusual janitorial services
required by reason of any nonstandard improvements in the Premises, including
without limitation wall coverings and floor coverings installed by or for Tenant
or by reason of any use of Premises other than exclusively as offices. The
cleaning services provided by Landlord shall also exclude refrigerators, eating
utensils (plates, drinking containers, and silverware) and interior glass
partitions. Tenant shall pay to Landlord the cost of removal of any of Tenant's
refuse and rubbish to the extent that they exceed the refuse and rubbish usually
attendant with general office usage.
7. Tenant shall have access to the Office Building 24 hours per day 7
days per week 52 weeks per year; provided that Landlord may install access
control systems as it deems advisable for the Office Building. Such systems may,
but need not, include full or part-time lobby supervision, the use of a sign-
in/sign-out log, a card identification access system, building parking and
access pass system, closing hours procedures, access control stations, fire
stairwell exit door alarm system, electronic guard system, mobile paging system,
elevator control system, or any other access controls. In the event that
Landlord elects to provide any or all of those services, Landlord may
discontinue providing them at any time with or without notice. Landlord may
impose a reasonable charge for access control cards and/or keys issued to
Tenant. Landlord shall have no liability to Tenant for the provision by Landlord
of improper access control services for any breakdown in service or for the
failure by Landlord to provide access control services. Tenant further
acknowledges that Landlord's access systems may be temporarily inoperative
during building emergency and system repair periods. Tenant agrees to assume
responsibility for compliance by its employees with any regulations established
by Landlord with respect to any card key access or any other system of building
access as Landlord may establish. Tenant shall be liable to Landlord for any
loss or damage resulting from its or its employees use/misuse of any access
system.
Exhibit B-2
EXHIBIT C
TENANT'S INSURANCE
The following standards for Tenant's insurance shall be in effect at the
Office Building. Landlord reserves the right to adopt reasonable,
nondiscriminatory modifications and additions to those standards. Tenant agrees
to obtain and present evidence to Landlord that it has fully complied with the
insurance requirements.
1. Tenant shall, at its sole cost and expense commencing on the date
Tenant is given access to the Premises for any purpose and during the entire
Term procure, pay for and keep in full force and effect: (i) comprehensive
general liability insurance with respect to the Premises and the operations of
or on behalf of Tenant in on or about the Premises, including but not limited to
personal injury, non-owned automobile, blanket contractual, independent
contractors, broad form property damage, fire legal liability, products
liability (if a product is sold from the Premises), liquor law liability (if
alcoholic beverages are sold served or consumed within the Premises), and cross
liability and severability of interest clauses, which policy(ies) shall be
written on an occurrence basis and for not less than $1,000,000 combined single
limit (with a $50,000 minimum limit on fire legal liability) per occurrence for
bodily injury, death and property damage liability, or the current limit of
liability carried by Tenant, whichever is greater, and subject to such increases
in amount as Landlord may determine from time to time; (ii) workers compensation
insurance coverage as required by law, together with employers liability,
insurance coverage; (iii) with respect to improvements, alterations and the like
required or permitted to be made by Tenant under this Lease builder's all-risk
insurance in amounts satisfactory to Landlord; (iv) insurance against fire,
vandalism, malicious mischief, and such other-additional perils, as may be
included in a standard all risk form in general use in San Mateo County,
California insuring Tenants leasehold improvements, trade fixtures, furnishings,
equipment and items of personal property of Tenant located in the Premises in an
amount equal to not less than ninety percent (90%) of their actual replacement
cost (with replacement cost endorsement); and (v) business interruption
insurance in amounts satisfactory to Landlord. In no event shall the limits of
any policy be considered as limiting the liability of Tenant under this Lease.
2. All policies of insurance required to be carried by Tenant pursuant to
this Exhibit C shall be written by responsible insurance companies authorized to
do business in the State of California and with a Best's policyholder rating of
not less than "A" subject to final acceptance and approval by Landlord. Any
insurance required of Tenant may be furnished by Tenant under any blanket policy
carried by it or under a separate policy. A true and exact copy of each paid up
policy evidencing the insurance (appropriately authenticated by the insurer), or
a certificate of insurance certifying that the policy has been issued, provides
the coverage required by this Exhibit C, and contains the required provisions
shall be delivered to Landlord prior to the date Tenant is given the of
possession of the Premises. Proper evidence of the renewal of any insurance
coverage shall also be delivered to Landlord not less than thirty (30) days
prior to the expiration of the coverage. Landlord may, at any time, and from
time to time, inspect and/or copy any and all insurance policies required by
this Lease.
3. Each policy evidencing insurance required to be carried by Tenant,
pursuant to this Exhibit C, shall contain the following provisions and/or
clauses satisfactory to Landlord (i) a provision that the policy and the
coverage provided shall be primary and that any coverage carried by Landlord
shall be noncontributory with respect to any policies carried by Tenant; (ii) a
provision including Landlord and any other parties in interest designated by
Landlord as an additional insured, except as to workers compensation insurance;
(iii) a waiver by the insurer of any right to subrogation against Landlord, its
agents, employees, contractors, and representatives which arises or might arise
by reason of any payment trader the policy or by reason of any act or omission
of Landlord, its agents, employees, contractors or representatives; and (iv) a
provision that the insurer will not cancel or change the coverage provided by
the policy without first giving Landlord thirty (30) days prior written notice.
4. In the event that Tenant fails to procure, maintain and/or pay for, at
the times and for the durations specified in this Exhibit C, any insurance
required by this Exhibit C or fails to carry insurance required by any
governmental authority, Landlord may at its election procure that insurance and
pay the premiums in which event
Exhibit C-1
FIRST AMENDMENT TO LEASE
This First Amendment to Lease is entered as of this 17th day of December, 1998,
by and between ROSJAN LIMITED PARTNERSHIP, a California Limited Partnership
("Landlord"), and INFOSPACE, INC. ("Tenant").
The parties enter this First Amendment to Lease on the basis of the following
facts, intentions, and understandings:
A. Landlord and Tenant have entered into that certain Office Space Lease dated
the 10th day of August 1998, pursuant to which Landlord leased to tenant
Suite 360 consisting of approximately 1,237 rentable square feet of office
space ("Premises"), for the permitted uses listed therein, the Premises being
located at 000 Xxxxxx Xxxxxx in the City and County of San Mateo, California,
as indicated on the Building Floor Plan attached as Exhibit A to the Lease.
B. Landlord agrees and Tenant now desires to lease an additional Suite #555 (the
"Additional Premises").
C. In the event of any conflict between the covenants and agreements of the
Lease and this First Amendment, the covenants and agreements of this First
Amendment prevail.
Now, therefore, in consideration of the mutual covenants and promises of the
parties, the parties agree as follows:
1. Additional Premises: The Additional Premises, Suite 555, consists of
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approximately 1,816 rentable square feet.
2. Term: The term of the lease will be for 18 months, commencing on January 1,
----
1999, and terminating on June 30, 2000.
3. Base Rent: Commencing January 1, 1999, the rent for the Additional Premises
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shall be as follows:
1/1/99 through 2/28/99 = $1,679.80 per month
3/1/99 through 6/30/99 = $3,359.60 per month
7/1/99 through 6/30/00 = $3,450.40 per month
4. Security Deposit: The Security Deposit for the Additional Premises shall be
----------------
equal to Three thousand four hundred fifty dollars and forty cents
($3,450.40). Upon execution of this First Amendment of Lease, the Tenant
shall pay to the Landlord $3,450.40 as Security Deposit, together with the
first month's rent ($3,450.40 + $1,679.80 = $5,130.20).
5. Share of Expenses: For the Additional Premises, Tenant shall pay to the
-----------------
Landlord and amount equal to 2.385% of any increase in property taxes,
insurance and operating expenses paid or incurred by Landlord above such paid
or incurred by landlord during the Base Year. "Base Year" shall mean the
calendar year 1998.
Infospace, Inc
First Amendment to Lease
Page Two
6. The Additional Premises shall be "as is".
7. Obligations: Except as otherwise provided herein, the Lease shall remain in
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full force and effect.
In Witness Whereof, the parties hereto have executed the First Amendment to
Lease as of the date first above written.
"Landlord" "Tenant"
Rosjan Limited Partnership Infospace, Inc.
By: Xxxxxxx-Xxxxxx Management Group By: /s/ Xxxx X. Xxxxxxxx
Its Managing Agent ------------------------------
Xxxx X. Xxxxxxxx
By: /s/ Xxxx X. Xxxxxx Its V.P. of Finance & CFO
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Xxxx X. Xxxxxx By: /s/ Xxxx Xxxx
Its Director of Property Management ------------------------------
Xxxx Xxxx
Date: 1/7/99 Its President and CEO
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Date: 12-28-98
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