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EXHIBIT 10.19
STANDARD OFFICE LEASE - GROSS
BANK OF AMERICA CENTER
INTERNET CENTURY, INC.
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STANDARD OFFICE LEASE - GROSS
BANK OF AMERICA CENTER
INTERNET CENTURY, INC.
TABLE OF CONTENTS
Page
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1. Basic Lease Provisions ................................................ 1
2. Premises, Parking and Common Areas .................................... 2
3. Term .................................................................. 3
4. Rent .................................................................. 4
5. Security Deposit ...................................................... 6
6. Use ................................................................... 6
7. Maintenance, Repairs, Alterations and Common Area Services ............ 7
8. Insurance; Indemnity .................................................. 9
9. Damage or Destruction ................................................. 11
10. Real Property Taxes ................................................... 13
11. Utilities ............................................................. 14
12. Assignment and Subletting ............................................. 14
13. Default; Remedies ..................................................... 17
14. Condemnation .......................................................... 18
15. Broker's Fee .......................................................... 19
16. Estoppel Certificate; Financial Statements ............................ 19
17. Landlord's Liability .................................................. 20
18. Severability .......................................................... 20
19. Interest on Past-due Obligations ...................................... 20
20. Time of Essence ....................................................... 20
21. Additional Rent ....................................................... 20
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22. Incorporation of Prior Agreements; Amendments .......................... 20
23. Notices ................................................................ 20
24. Waivers ................................................................ 21
25. Recording .............................................................. 21
26. Holding Over ........................................................... 21
27. Cumulative Remedies .................................................... 21
28. Covenants and Conditions ............................................... 21
29. Binding Effect; Choice of Law .......................................... 21
30. Subordination .......................................................... 21
31. Attorneys' Fees ........................................................ 22
32. Landlord's Access ...................................................... 22
33. Auctions ............................................................... 22
34. Signs .................................................................. 22
35. Merger ................................................................. 22
36. Consents ............................................................... 22
37. Guarantor .............................................................. 23
38. Quiet Possession ....................................................... 23
39. Omitted ................................................................ 23
40. Security Measures-Landlord's Reservations .............................. 24
41. Easements .............................................................. 24
42. Performance Under Protest .............................................. 24
43. Authority .............................................................. 25
44. Conflict ............................................................... 25
45. No Offer ............................................................... 25
46. Lender Modification .................................................... 25
47. Multiple Parties ....................................................... 25
48. Intentionally Omitted .................................................. 25
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49. Nondisclosure of Lease Terms ....................................... 25
50. Attachments ........................................................ 25
EXHIBITS & RIDERS
Exhibit "A" - Floor Plan of Premises
Exhibit "B" - Rules and Regulations
THIS LEASE IS NOT IN EFFECT UNTIL
DULY SIGNED BY LANDLORD AND TENANT
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STANDARD OFFICE LEASE - GROSS
BANK OF AMERICA CENTER
1. BASIC LEASE PROVISIONS ("Basic Lease Provisions").
1.1 PARTIES: This Standard Office Lease - Gross ("Lease"), dated, for
reference purposes only, August 21, 1998, is made by and between ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ CORPORATION, a Delaware corporation (herein called "Landlord"), and
INTERNET CENTURY, INC., a Nevada corporation, (herein called "Tenant").
1.2 PREMISES: Suite Number 690, consisting of approximately 1,012
rentable square feet, more or less, as defined in paragraph 2 and as shown on
Exhibit "A" hereto (the "Premises").
1.3 BUILDING: Commonly described as being located at 101 Convention
Center Drive, in the City of Las Vegas, County of ▇▇▇▇▇, State of Nevada.
1.4 USE: General office use only, subject to paragraph 6.
1.5 TERM: Thirty-Six (36) months commencing on September 1, 1998
("Commencement Date") and ending August 31, 2001, subject to the terms of
paragraph 3 below.
1.6 BASE RENT: Initially, $1,669.80 per month, payable on the first
day of each month, per paragraph 4.1, subject to adjustment as provided in
paragraph 1.7 below.
1.7 BASE RENT INCREASE: The monthly Base Rent payable under paragraph 1.6
above shall be adjusted as follows:
Lease Year Base Rent Per Month
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1 $1,669.80
2 $1,720.40
3 $1,771.00
1.8 BASE RENT TO BE PAID UPON EXECUTION: $1,669.80.
1.9 SECURITY DEPOSIT: $1,771.00.
1.10 TENANT'S SHARE OF OPERATING EXPENSE INCREASE: 0.33% as defined in
paragraph 4.2.
1.11 PARKING SPACES: 3 unreserved parking spaces.
1.12 BROKERS: CB ▇▇▇▇▇▇▇ ▇▇▇▇▇, representing Landlord as "listing broker"
and Cambridge Group, as "cooperating broker", both licensed real estate brokers.
1.13 LEASE YEAR: Shall refer to each 365-day period during the Term
commencing on the Commencement Date and ending on each anniversary thereof.
1.14 GUARANTORS (IF ANY): None.
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2. PREMISES, PARKING AND COMMON AREAS.
2.1 PREMISES. The Premises are a portion of a building, herein sometimes
referred to as the "Building" identified in paragraph 1.3 of the Basic Lease
Provisions. "Building" shall include adjacent parking structures used in
connection therewith. The Premises, the Building, the Common Areas, the land
upon which the same are located, along with all other buildings and improvements
thereon or thereunder, are herein collectively referred to as the "Office
Building Project." Landlord hereby leases to Tenant and Tenant leases from
Landlord for the term, at the rental, and upon all of the conditions set forth
herein, the real property referred to in the Basic Lease Provisions, paragraph
1.2, as the "Premises", including rights to the Common Areas as hereinafter
specified.
2.2 VEHICLE PARKING. So long as Tenant is not in default, and subject to
the rules and regulations attached hereto, and as established by Landlord from
time to time, Tenant shall be entitled to rent and use the number and type of
parking spaces in the Office Building Project described in the Basic Lease
Provisions, paragraph 1.11, at the monthly rate applicable from time to time
for monthly parking as set by Landlord and/or its licensee.
2.2.1 If Tenant commits, permits or allows any of the prohibited
activities described in this Lease or the rules then in effect, then Landlord
shall have the right, without notice, in addition to such other rights and
remedies that it may have, to remove or tow away the vehicle involved and charge
the cost to Tenant, which cost shall be immediately payable upon demand by
Landlord.
2.2.2 Tenant acknowledges and agrees that Landlord shall charge for
visitor and reserved parking for the Office Building Project and that Landlord
reserves the right to charge Tenant for the unreserved parking spaces provided
to Tenant during any renewal terms exercised by Tenant pursuant to any rider or
addendum attached hereto.
2.2.3 Landlord reserves the right to institute and operate, as an
Operating Expense of the Office Building Project, a valet parking service at the
Building and to require Tenant and its employees to use the valet service, at no
cost or expense to Tenant (other than Tenant's proportionate share of such
services as part of Tenant's Share of any Operating Expense Increase), as the
unreserved parking space rights granted to Tenant pursuant to paragraph 2.2
above.
2.3 COMMON AREAS - DEFINITION. The term "Common Areas" is defined as all
areas and facilities outside the Premises and within the exterior boundary line
of the Office Building Project that are provided and designated by the Landlord
from time to time for the general non-exclusive use of Landlord, Tenant and of
other tenants of the Office Building Project and their respective employees,
suppliers, shippers, customers and invitees, including, but not limited to,
common entrances, lobbies, corridors, stairways and stairwells, public
restrooms, elevators, escalators, parking areas to the extent not otherwise
prohibited by this Lease, loading and unloading areas, trash areas, roadways,
sidewalks, walkways, parkways, ramps, driveways, landscaped areas and decorative
walls.
2.4 COMMON AREAS - RULES AND REGULATIONS. Tenant agrees to abide by and
conform to the rules and regulations attached hereto as Exhibit "B" with respect
to the Office Building Project and Common Areas, and to cause its employees,
suppliers, shippers, customers, and invitees to so abide and conform. Landlord
or such other person(s) as Landlord may appoint shall have the exclusive control
and management of the Common Areas and shall have the right, from time to time,
to modify, amend and enforce said rules and regulations. Landlord shall not be
responsible to Tenant for the noncompliance with said rules and regulations by
other lessees, their agents, employees and invitees of the Office Building
Project, provided Landlord takes reasonable steps to enforce the rules and
regulations.
2.5 COMMON AREAS - CHANGES. Landlord shall have the right, in Landlord's
sole discretion, from time to time:
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2.5.1 To make changes to the Building interior and exterior and Common
Areas, including, without limitation, changes in the location, size, shape,
number, and appearance thereof, including, but not limited to, the lobbies,
windows, stairways, air shafts, elevators, escalators, restrooms, driveways,
entrances, parking spaces, parking areas, loading and unloading areas, ingress,
egress, direction of traffic, decorative walls, landscaped areas and walkways;
provided, however, Landlord shall at all times provide the parking facilities
required by applicable law;
2.5.2 To close temporarily any of the Common Areas for maintenance and
repair purposes so long as reasonable access to the Premises remains available;
2.5.3 To designate other land and improvements outside the boundaries
of the Office Building Project to be a part of the Common Areas, provided that
such other land and improvements have a reasonable and functional relationship
to the Office Building Project;
2.5.4 To add additional buildings and improvements to the Common Areas;
2.5.5 To use the Common Areas while engaged in making additional
improvements, repairs or alterations to the Office Building Project, or any
portion thereof;
2.5.6 To do and perform such other acts and make such other changes in,
to or with respect to the Common Areas and Office Building Project as Landlord
may, in the exercise of sound business judgment, deem to be appropriate.
2.6 SUBSTITUTED PREMISES. If the Premises contain an area of 3,500 square
feet or less, Landlord shall have the right at any time during the term hereof,
upon giving Tenant not less than 30 days notice in writing, to provide and
furnish Tenant with reasonably comparable space elsewhere in the Office Building
Project of approximately the same size as the Premises, and to remove and place
Tenant in such space. Should Tenant refuse to permit Landlord to move Tenant to
such new space at the end of said 30-day period, Landlord shall have the right
to terminate this Lease, effective 60 days from the date of original
notification by Landlord. If Landlord moves Tenant to such new space, (i)
Landlord shall pay all reasonable moving expenses of Tenant which are directly
attributable to such substitution of Premises, (ii) this Lease and all of its
terms, covenants and conditions shall remain in full force and effect, and shall
be deemed applicable to such new space, except that a revised Exhibit "A" shall
become part of this Lease and shall reflect the location of the new space, (iii)
the Lease shall be amended to include and state all correct information as to
the new space, and (iv) such new space shall thereafter be deemed to be the
"Premises". Notwithstanding the foregoing, if such new space is smaller than the
Premises, the base rent under paragraphs 1.6 and 1.7 of the Basic Lease
Provisions, and Tenant's share of Operating Expense Increase under paragraph 1.
10 of the Basic Lease Provisions, shall be reduced proportionately, based upon
the reduction in square footage between the new space and the Premises. If the
new space is larger than the Premises, then there will be no increase in base
rent or Tenant's share of Operating Expense Increase, unless Landlord and Tenant
mutually agree to expand the Premises and/or extend the lease term.
3. TERM.
3.1 TERM. The term and Commencement Date of this Lease shall be as
specified in paragraph 1.5 of the Basic Lease Provisions, subject to the terms
of paragraphs 3.2 and 3.4 below.
3.2 DELAY IN POSSESSION. Notwithstanding said Commencement Date, if for any
reason Landlord cannot deliver possession of the Premises to Tenant on said date
and subject to paragraph 3.2.2, Landlord shall not be subject to any liability
therefor, nor shall such failure affect the validity of this Lease or the
obligations of Tenant hereunder, but, in such case, Tenant shall not be
obligated to pay rent or perform any other obligation of Tenant under the terms
of this Lease, except as may be otherwise provided in this Lease, until
possession of the Premises is tendered to Tenant, as hereinafter defined.
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3.2.1 POSSESSION TENDERED - DEFINED. Possession of the Premises shall
be deemed tendered to Tenant ("Tender of Possession") when (1) the Building
utilities are ready for use in the Premises, and (2) Tenant has reasonable
access to the Premises. Tenant hereby agrees to accept possession of the
Premises "as is," in their present state and condition.
3.2.2 DELAYS CAUSED BY TENANT. There shall be no abatement of rent to
the extent of any delays caused by acts or omissions of Tenant, Tenant's agents,
employees and contractors.
3.3 EARLY POSSESSION. If Tenant occupies the Premises prior to said
Commencement Date, such occupancy shall be subject to all provisions of this
Lease, such occupancy shall not change the termination date, and Tenant shall
pay rent for such occupancy at the rate applicable for the first Lease Year.
3.4 UNCERTAIN COMMENCEMENT. In the event that the Commencement Date is a
date other than as specified in Section 1.5 as a result of a delay in possession
as defined in Section 3.2 hereinabove, then the commencement of the Lease term
shall be defined as the date of Tender of Possession as further described in
Section 3.2.1. In such event, Tenant and Landlord shall execute an Amendment to
this Lease establishing the date of Tender of Possession as defined in paragraph
3.2.1, or the date of actual taking of possession by Tenant, whichever first
occurs, as the Commencement Date.
4. RENT.
4.1 BASE RENT. Tenant shall pay to Landlord the Base Rent for the Premises
set forth in paragraph 1.6 of the Basic Lease Provisions, subject to adjustment
as provided in paragraph 1.7 of the Basic Lease Provisions, without notice,
offset or deduction on or before the first day of each month during the term.
Tenant shall pay Landlord upon execution hereof the advance Base Rent described
in paragraph 1.8 of the Basic Lease Provisions. Rent for any period during the
term hereof which is for less than one month shall be prorated based upon the
actual number of days of the calendar month involved. Rent shall be payable in
lawful money of the United States to Landlord at the address stated herein or to
such other persons or at such other places as Landlord may designate in writing.
4.2 OPERATING EXPENSE INCREASE. Tenant shall pay to Landlord during the
term hereof, in addition to the Base Rent, Tenant's Share, as hereinafter
defined, of the amount by which all Operating Expenses, as hereinafter defined,
for each Comparison Year exceeds the amount of all Operating Expenses for the
Base Year, such excess being hereinafter referred to as the "Operating Expense
Increase", in accordance with the following provisions:
4.2.1 "Tenant's Share" is defined, for purposes of this Lease, as the
percentage set forth in paragraph 1.10 of the Basic Lease Provisions, which
percentage has been determined by dividing the approximate square footage of the
Premises by the total approximate square footage of the Office Building Project.
It is understood and agreed that the square footage figures set forth in the
Basic Lease Provisions are approximations which Landlord and Tenant agree are
reasonable and shall not be subject to revision except in connection with an
actual change in the size of the Premises or a change in the space available for
lease in the Office Building Project.
4.2.2 "Base Year" is defined as the calendar year in which the Lease
term commences.
4.2.3 "Comparison Year" is defined as each calendar year during the
term of this Lease subsequent to the Base Year. Tenant's Share of the Operating
Expense Increase for each Comparison Year of the Lease Term shall be prorated
according to that portion of such Comparison Year as to which Tenant is
responsible for a share of such increase. If the average occupancy of the Office
Building Project is not at least 95% for any Comparison Year, then Landlord will
make an appropriate adjustment of the operating expenses for such Comparison
Year to determine what the annual operating expenses would have been if the
average occupancy of the Office Building Project had been 95%, and the amount so
determined shall be deemed to have been the amount of operating expenses for
such Comparison Year. For any Comparison Year in which Landlord adjusts the
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operating costs to reflect an average occupancy of 95%, the operating costs for
the Base Year also shall be adjusted to reflect an average occupancy of 95% for
the Base Year (unless the average occupancy, of the Office Building Project was
95% or more for the Base Year, in which case it shall be unnecessary to adjust
the operating costs for the Base Year).
4.2.4 "Operating Expenses" is defined, for purposes of this Lease, to
include all costs, if any, incurred by Landlord in the exercise of its
reasonable discretion, for:
(i) The operation, repair, maintenance, and replacement, in
neat, clean, safe, good order and condition, of the Office Building Project,
including, but not limited to, the following:
(aa) The Common Areas, including their surfaces,
coverings, decorative items, carpets, drapes and window coverings, and including
parking areas, loading and unloading areas, trash areas, roadways, sidewalks,
walkways, stairways, parkways, driveways, landscaped areas, striping, bumpers,
irrigation systems, Common Area lighting facilities, building exteriors and
roofs, fences and gates;
(bb) All heating, air conditioning, plumbing,
electrical systems, life safety equipment, telecommunication and other equipment
used in common by, or for the benefit of, lessees or occupants of the Office
Building Project, including elevators and escalators, tenant directories, fire
detection systems, including sprinkler system maintenance and repair.
(ii) Trash disposal, janitorial and security services;
(iii) Any other service to be provided by Landlord that is
elsewhere in this Lease stated to be an "Operating Expense";
(iv) The cost of the premiums for the liability and property
insurance policies to be maintained by Landlord under paragraph 8 hereof,
(v) The amount of the real property taxes to be paid by
Landlord under paragraph 10.1 hereof including any fees paid by Landlord to
contest or appeal the tax assessment for purposes of lowering such assessment;
(vi) The cost of water, sewer, gas, electricity, and other
publicly mandated services to the Office Building Project;
(vii) Labor, salaries and applicable fringe benefits and
costs, materials, supplies and tools, used in maintaining and/or cleaning the
Office Building Project and accounting and a management fee attributable to the
operation of the Office Building Project;
(viii) Replacing and/or adding improvements mandated by any
law or governmental agency and any repairs or removals necessitated thereby
amortized over its useful life according to Federal income tax regulations or
guidelines for depreciation thereof (including interest on the unamortized
balance as is then reasonable in the judgment of Landlord's accountants);
(ix) Operating Expenses shall include the cost of any capital
improvements made to the Office Building Project, the common facilities or any
part thereof for the purpose of reducing operating expenses, such costs to be
amortized over such reasonable period as Landlord shall determine;
(x) Replacements of equipment or improvements that have a
useful life for depreciation purposes according to Federal income tax guidelines
of five (5) years or less, as amortized over such life.
4.2.5 Operating Expenses shall not include the following:
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(i) costs of replacements of equipment or improvements that
have a useful life for Federal income tax purposes in excess of five (5) years
unless the item is of the type described in paragraph 4.2.4(viii) or (ix), in
which case their cost for such item shall be included as above provided; or
(ii) any expenses paid by any lessee directly to third
parties, or as to which Landlord is otherwise reimbursed by any third party,
other tenant, or by insurance proceeds.
4.2.6 Tenant's Share of Operating Expense Increase shall be payable by
Tenant within fifteen (15) days after a reasonably detailed statement of actual
expenses is presented to Tenant by Landlord. At Landlord's option, however, an
amount may be estimated by Landlord from time to time, in advance of Tenant's
Share of the Operating Expense Increase for any Comparison Year, and the same
shall be payable monthly or quarterly, as Landlord shall designate during each
Comparison Year of the Lease term, on the same day as the Base Rent is due
hereunder. If Tenant pays Landlord's estimate of Tenant's Share of Operating
Expense Increase as aforesaid, Landlord shall deliver to Tenant after the
expiration of each Comparison Year a reasonably detailed statement showing
Tenant's Share of the actual Operating Expense Increase incurred during such
year. If Tenant's payments under this paragraph 4.2.6 during said Comparison
Year exceed Tenant's Share as indicated on said statement, Tenant shall be
entitled to credit the amount of such overpayment against Tenant's Share of
Operating Expense Increase next falling due. If Tenant's payments under this
paragraph during said Comparison Year were less than Tenant's Share as indicated
on said statement, Tenant shall pay to Landlord the amount of the deficiency
within fifteen (15) days after delivery by Landlord to Tenant of said statement.
Landlord and Tenant shall forthwith adjust between them by cash payment any
balance determined to exist with respect to that portion of the last Comparison
Year for which Tenant is responsible as to Operating Expense Increases,
notwithstanding that the Lease term may have terminated before the end of such
Comparison Year.
5. SECURITY DEPOSIT. Tenant shall deposit with Landlord upon execution hereof
the security deposit set forth in paragraph 1.9 of the Basic Lease Provisions as
security for Tenant's faithful performance of Tenant's obligations hereunder. If
Tenant fails to pay rent or other charges due hereunder, or otherwise defaults
with respect to any provision of this Lease, Landlord may use, apply or retain
all or any portion of said deposit for the payment of any rent or other charge
in default, for the payment of any other sum to which Landlord may become
obligated by reason of Tenant's default, or to compensate Landlord for any loss
or damage which Landlord may suffer thereby. If Landlord so uses or applies all
or any portion of said deposit, Tenant shall, within ten (10) days after written
demand therefor, deposit cash with Landlord in an amount sufficient to restore
said deposit to the full amount then required of Tenant. Landlord shall not be
required to keep said security deposit separate from its general accounts. If
Tenant performs all of Tenant's obligations hereunder, said deposit, or so much
thereof as has not heretofore been applied by Landlord, shall be returned,
without payment of interest or other increment for its use, to Tenant (or at
Landlord's option, to the last assignee, if any, of Tenant's interest hereunder)
within a reasonable time after the expiration of the term hereof, and after
Tenant has vacated the Premises. No trust relationship is created herein between
Landlord and Tenant with respect to said Security Deposit.
6. USE.
6.1 USE. The Premises shall be used and occupied only for the purpose set
forth in paragraph 1.4 of the Basic Lease Provisions or any other use which is
reasonably comparable to that use and for no other purpose, without the express
written permission of Landlord.
6.2 COMPLIANCE WITH LAW.
6.2.1 LANDLORD'S WARRANTY. Landlord warrants to Tenant that to
Landlord's actual knowledge, the Premises, in the state existing on the date
that the Lease term commences, but without regard to alterations or improvements
made by Tenant or the use for which Tenant will occupy the Premises, does not
violate any covenants or restrictions of record, or any applicable building
code, regulation or ordinance with which the Premises must comply.
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6.2.2 TENANT'S COMPLIANCE. Except as provided in paragraph 6.2.1.
Tenant shall, at Tenant's expense, promptly comply with all applicable statutes,
ordinances, rules, regulations, orders. covenants and restrictions of record,
and requirements of any fire insurance underwriters or rating bureaus, now in
effect or which may hereafter come into effect whether or not they reflect a
change in policy from that now existing, during the term or any part of the term
hereof, relating in any manner to the Premises and the occupation, use,
alteration or improvement by Tenant of the Premises. Tenant shall conduct its
business in a lawful manner and shall not use or permit the use of the Premises
or the Common Areas in any manner that will tend to create waste or a nuisance
or shall tend to disturb other occupants of the Office Building Project.
6.3 CONDITION OF PREMISES.
6.3.1 DELIVERY OF POSSESSION. Landlord shall deliver the Premises to
Tenant in a clean condition on the Lease Commencement Date (unless Tenant is
already in possession) and Landlord warrants to Tenant that the plumbing,
lighting, air conditioning, and heating system in the Premises shall be in good
operating condition. If Tenant notifies Landlord in writing within the first six
(6) months of the term of this Lease ("Warranty Period") that this warranty has
been violated, then it shall be the obligation of Landlord, after receipt of
written notice from Tenant setting forth with specificity the nature of the
violation, to initiate, at Landlord's sole cost, measures to rectify such
violation. From and after the expiration of the Warranty Period, and provided
that Tenant has not delivered written notice to Landlord during the Warranty
Period of any alleged violation of such warranty, the foregoing warranty of
Landlord shall be deemed to be true and correct during the Warranty Period and
Landlord shall have no further obligation to initiate or otherwise undertake any
measures to rectify any purported violation of the warranty.
6.3.2 ACCEPTANCE OF POSSESSION. Except as otherwise provided in this
Lease, Tenant hereby accepts the Premises and the Office Building Project in
their condition existing as of the Lease Commencement Date or the date that
Tenant takes possession of the Premises, whichever is earlier, subject to all
applicable zoning, municipal, county and state laws, ordinances and regulations
governing and regulating the use of the Premises, and any easements, covenants
or restrictions of record, and accepts this Lease subject thereto and to all
matters disclosed thereby and by any exhibits attached hereto. Tenant
acknowledges that the Premises are in good order and repair and that it has
satisfied itself by its own independent investigation that the Premises are
suitable for its intended use, and that neither Landlord nor Landlord's agent or
agents has made any representation or warranty as to the present or future
suitability of the Premises, Common Areas, or Office Building Project for the
conduct of Tenant's business.
7. MAINTENANCE, REPAIRS, ALTERATIONS AND COMMON AREA SERVICES.
7.1 LANDLORD'S OBLIGATIONS. Subject to being reimbursed by Tenant for
Tenant's Share of Operating Expense Increase, and subject to Tenant's repair
obligations contained in paragraph 7.2 below, Landlord shall keep the Office
Building Project, including the roof, and Common Areas, and the equipment,
whether used exclusively for the Premises or in common with other premises, in
good condition and repair; provided, however, Landlord shall not be obligated to
paint, repair or replace wall coverings, or to repair or replace any
improvements that are not ordinarily a part of the Building or are above
generally accepted Building standards. Except as provided in paragraph 9.5,
there shall be no abatement of rent or liability of Tenant on account of any
injury or interference with Tenant's business with respect to any improvements,
alterations or repairs made by Landlord to the Office Building Project or any
part thereof, nor shall such improvement, alteration or repair constitute an
eviction or disturbance of Tenant's use or possession of the Premises.
7.2 TENANT'S OBLIGATIONS.
7.2.1 TENANT'S REPAIR OBLIGATIONS. Notwithstanding Landlord's
obligation to keep the Office Building Project in good condition and repair,
Tenant shall be responsible for payment of the cost thereof to Landlord as
additional rent for that portion of the cost of any maintenance and repair of
the Premises, or any equipment (wherever located) that serves only Tenant or the
Premises, to the extent such cost is attributable to
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causes beyond normal wear and tear. Tenant shall be responsible for the cost of
painting, repairing or replacing wall coverings, and to repair or replace any
Premises improvements that are not ordinarily a part of the Building or that are
above Building standards including, without limitation, all alterations, special
or supplemental HVAC systems and electrical systems, all fixtures, furniture and
equipment, Tenant's signs, locks, closing devices, security devices, floor
coverings, shelving, kitchen and/or restroom facilities and appliances located
within the Premises, if any, custom lighting, and any alterations, additions and
other personal property located within the Premises. Landlord may, at its
option, upon reasonable notice, elect to have Tenant perform any part of such
maintenance or repairs, the cost of which is otherwise Tenant's responsibility
hereunder.
7.2.2 SURRENDER. On the last day of the term hereof, or on any sooner
termination, Tenant shall surrender the Premises to Landlord in the same
condition as received, ordinary wear and tear excepted, clean and free of
debris. Any damage or deterioration of the Premises shall not be deemed ordinary
wear and tear if the same could have been prevented by good maintenance
practices by Tenant. Tenant shall repair any damage to the Premises occasioned
by the installation or removal of Tenant's trade fixtures, alterations,
furnishings and equipment. Except as otherwise stated in this Lease, Tenant
shall leave the air lines, power panels, electrical distribution systems,
lighting fixtures, air conditioning, window coverings, wall coverings, carpets,
wall paneling, ceilings and plumbing on the Premises and in good operating
condition.
7.3 ALTERATIONS AND ADDITIONS.
7.3.1 ALTERATIONS. Tenant shall not, without Landlord's prior written
consent make any alterations, improvements, additions, Utility Installations or
repairs in, on or about the Premises, or the Office Building Project. As used in
this paragraph 7.3 the term "Utility Installation" shall mean carpeting, window
and wall coverings, power panels, electrical distribution systems, lighting
fixtures, air conditioning, plumbing, and telephone and telecommunication wiring
and equipment. At the expiration of the term, Landlord may require the removal
of any or all of said alterations, improvements, additions or Utility
Installations, and the restoration of the Premises and the Office Building
Project to their prior condition, at Tenant's expense. Should Landlord permit
Tenant to make its own alterations, improvements, additions or Utility
Installations, Tenant shall use only such contractor as has been expressly
approved by Landlord, and Landlord may require Tenant to provide Landlord, at
Tenant'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
Landlord against any liability for mechanic's and materialmen's liens and to
insure completion of the work. Should Tenant make any alterations, improvements,
additions or Utility Installations without the prior approval of Landlord, or
use a contractor not expressly approved by Landlord, Landlord may, at any time
during the term of this Lease, require that Tenant remove any part or all of the
same.
7.3.2 LANDLORD'S CONSENT. Any alterations, improvements, additions or
Utility Installations in or about the Premises or the Office Building Project
that Tenant shall desire to make shall be presented to Landlord in written form,
with proposed detailed plans. If Landlord shall give its consent to Tenant's
making such alteration, improvement, addition or Utility Installation, the
consent shall be deemed conditioned upon Tenant acquiring a permit to do so from
the applicable governmental agencies, furnishing a copy thereof to Landlord
prior to the commencement of the work, and compliance by Tenant with all
conditions of said permit in a prompt and expeditious manner.
7.3.3 CLAIMS AND LIENS. Tenant shall pay, when due, all claims for
labor or materials furnished or alleged to have been furnished to or for Tenant
at or for use in the Premises, which claims are or may be secured by any
mechanics' or materialmen's lien against the Premises, the Building or the
Office Building Project, or any interest therein. Tenant shall give Landlord not
less than ten (10) day's notice prior to the commencement of any work in the
Premises by Tenant, and Landlord shall have the right to post notices of
nonresponsibility in or on the Premises or the Building as provided by law. If
Tenant shall, in good faith, contest the validity of any such lien, claim or
demand, then Tenant shall, at its sole expense defend itself and Landlord
against the same and shall pay and satisfy any such adverse judgment that may be
rendered thereon before the enforcement thereof against the Landlord or the
Premises, the Building or the Office Building Project, upon the condition that
if
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Landlord shall require, Tenant shall furnish to Landlord a surety bond
satisfactory to Landlord in an amount equal to such contested lien claim or
demand indemnifying Landlord against liability for the same and holding the
Premises, the Building and the Office Building Project free from the effect of
such lien or claim. In addition, Landlord may require Tenant to pay Landlord
reasonable attorneys' fees and costs in participating in such action if Landlord
shall decide it is to Landlord best interest so to do.
7.3.4 QUALITY OF WORK. All alterations, improvements, additions and
Utility Installations (whether or not such Utility Installations constitute
trade fixtures of Tenant), which may be made to the Premises by Tenant,
including but not limited to, floor coverings, panelings, doors, drapes,
built-ins, moldings, sound attenuation, and lighting and telephone or
communication systems, conduit, wiring and outlets, shall be made and done in a
good and workmanlike manner and of good and sufficient quality and materials and
shall be the property of Landlord and remain upon and be surrendered with the
Premises at the expiration of the Lease term, unless Landlord requires their
removal pursuant to paragraph 7.3.1. Provided Tenant is not in default,
notwithstanding the provisions of this paragraph 7.3.4, Tenant's personal
property and equipment, other than that which is affixed to the Premises so that
it cannot be removed without material damage to the Premises or the Building,
and other than Utility Installations, shall remain the property of Tenant and
may be removed by Tenant subject to the provisions of paragraph 7.2.
7.3.5 AS-BUILT PLANS. Tenant shall provide Landlord with as-built plans
and specifications for any alterations, improvements, additions or Utility
Installations.
7.4 UTILITY ADDITIONS. Landlord reserves the right to install new or
additional utility facilities throughout the Office Building Project for the
benefit of Landlord or Tenant, or any other lessee of the Office Building
Project, including, but not by way of limitation, such utilities as plumbing,
electrical systems, communication systems, and fire protection and detection
systems, so long as such installations do not unreasonably interfere with
Tenant's use of the Premises.
8. INSURANCE; INDEMNITY.
8.1 LIABILITY INSURANCE-TENANT. Tenant shall, at Tenant's expense, obtain
and keep in force during the term of this Lease a policy of Commercial General
Liability insurance utilizing an Insurance Services Office standard form with
Broad Form General Liability Endorsement (GL0404), or equivalent, in an amount
of not less than $1,000,000 per occurrence of bodily injury and property damage
combined or in a greater amount as reasonably determined by Landlord and shall
insure Tenant with Landlord (and Landlord's property manager and all other
agents and lenders designated by Landlord) as additional insureds against
liability arising out of the use, occupancy or maintenance of the Premises.
Compliance with the above requirement shall not, however, limit the liability of
Tenant hereunder.
8.2 LIABILITY INSURANCE-LANDLORD. Landlord shall obtain and keep in force
during the term of this Lease a policy of Combined Single Limit Bodily Injury
and Broad Form Property Damage Insurance, plus coverage against such other risks
Landlord deems advisable from time to time, insuring Landlord, but not Tenant,
against liability arising out of the ownership, use, occupancy or maintenance of
the Office Building Project in an amount not less than $2,000,000.00 per
occurrence; however, Landlord may elect to self insure.
8.3 PROPERTY INSURANCE-TENANT. Tenant shall, at Tenant's expense, obtain
and keep in force during the term of this Lease for the benefit of Tenant,
replacement cost "All-Risk" insurance, with vandalism and malicious mischief,
sprinkler leakage and earthquake sprinkler leakage endorsements, in an amount
sufficient to cover not less than 100% of the full replacement cost, as the same
may exist from time to time, of all of Tenant's personal property, fixtures,
equipment and tenant improvements.
8.4 PROPERTY INSURANCE-LANDLORD. Landlord shall obtain and keep in force
during the term of this Lease a policy or policies of insurance covering loss or
damage to the Office Building Project improvements, but not Tenant's personal
property, fixtures, equipment or tenant improvements, in the amount of the full
replacement
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cost thereof, as the same may exist from time to time, utilizing Insurance
Services Office standard form, or equivalent, such other perils as Landlord
deems advisable or may be required by a lender having a lien on the Office
Building Project. In addition, Landlord shall obtain and keep in force, during
the term of this Lease, a policy of rental value insurance covering a period of
one year, with loss payable to Landlord, which insurance shall also cover all
Operating Expenses for said period. Tenant will not be named in any such
policies carried by Landlord and shall have no right to any proceeds therefrom.
The policies required by these paragraphs 8.2 and 8.4 shall contain such
deductibles as Landlord or the aforesaid lender may determine. In the event that
the Premises shall suffer an insured loss as defined in paragraph 9.1(f)
hereof, the deductible amounts under the applicable insurance policies shall be
deemed an Operating Expense. Tenant shall not do or permit to be done anything
which shall invalidate the insurance policies carried by Landlord. Tenant shall
pay the entirety of any increase in the property insurance premium for the
Office Building Project over what it was immediately prior to the commencement
of the term of this Lease if the increase is specified by Landlord's insurance
carrier as being caused by the nature of Tenant's occupancy or any act or
omission of Tenant. Landlord may elect to self insure.
8.5 INSURANCE POLICIES. Tenant shall deliver to Landlord copies of
liability insurance policies required under paragraph 8.1 or certificates
evidencing the existence and amounts of such insurance prior to Tenant taking
possession or early entry of the Premises. No such policy shall be cancelable or
subject to reduction of coverage or other modification except after thirty (30)
days prior written notice to Landlord. Tenant shall, at least thirty (30) days
prior to the expiration of such policies, furnish Landlord with renewals
thereof.
8.6 WAIVER OF SUBROGATION. Tenant and Landlord each hereby release and
relieve the other, and waive their entire right of recovery against the other,
for direct or consequential loss or damage arising out of or incident to the
perils covered by property insurance carried by such party, whether due to the
negligence of Landlord or Tenant or their agents, employees, contractors and/or
invitees. All property insurance policies required under this Lease shall be
endorsed to so provide.
8.7 INDEMNITY. Tenant shall indemnify, protect, defend and hold harmless
Landlord and its agents, Landlord's master or ground lessor, partners and
lenders, from and against any and all claims for damage to the person or
property of anyone or any entity arising from Tenant's use of the Office
Building Project, or from the conduct of Tenant's business or from any activity,
work or things done, permitted or suffered by Tenant in or about the Premises or
elsewhere and shall further indemnify, protect, defend and hold harmless
Landlord from and against any and all claims, costs and expenses arising from
any breach or default in the performance of any obligation on Tenant's part to
be performed under the terms of this Lease, or arising from any act or omission
of Tenant, or any of Tenant's agents, contractors, employees, or invitees, and
from and against all costs, attorneys' fees, expenses and liabilities incurred
by Landlord as the result of any such use, conduct, activity, work, things done,
permitted or suffered, breach, default or negligence, and in dealing reasonably
therewith, including, but not limited to, the defense or pursuit of any claim or
any action or proceeding involved therein; and in case any action or proceeding
be brought against Landlord by reason of any such matter, Tenant, upon notice
from Landlord, shall defend the same at Tenant's expense by counsel reasonably
satisfactory to Landlord and Landlord shall cooperate with Tenant in such
defense. Landlord need not have first paid any such claim in order to be so
indemnified.
8.8 EXEMPTION OF LANDLORD FROM LIABILITY. Tenant, as a material part of the
consideration to Landlord, hereby assumes all risk of damage to property of
Tenant or injury to persons, in, upon or about the Office Building Project
arising from any cause and Tenant hereby waives all claims in respect thereof
against Landlord. Tenant hereby agrees that Landlord shall not be liable for
injury to Tenant's business or any loss of income therefrom or for loss of or
damage to the goods, wares, merchandise or other property of Tenant, Tenant's
employees, invitees, customers, or any other person in or about the Premises or
the Office Building Project, nor shall Landlord be liable for injury to the
person of Tenant, Tenant's employees, agents or contractors, whether such damage
or injury is caused by or results from theft, 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 said damage or injury results from
conditions arising upon the Premises or upon other portions of the Office
Building Project, or from other sources or places, or from new construction or
the repair, alteration or improvement of any part of the Office Building
Project, or of the equipment, fixtures or
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appurtenances applicable thereto, and regardless of whether the cause of such
damage or injury or the means of repairing the same is inaccessible, Landlord
shall not be liable for any damages arising from any act or neglect of any other
lessee, occupant or user of the Office Building Project, nor from the failure of
Landlord to enforce the provisions of any other Lease Agreement between Landlord
and any other Tenant of the Office Building Project.
8.9 NO REPRESENTATION OF ADEQUATE COVERAGE. Landlord makes no
representation that the limits or forms of coverage of insurance specified in
this paragraph 8 are adequate to cover Tenant's property or obligations under
this Lease.
9. DAMAGE OR DESTRUCTION.
9.1 DEFINITIONS.
9.1.1 "Premises Damage" shall mean if the Premises are damaged or
destroyed to any extent.
9.1.2 "Premises Building Partial Damage" shall mean if the Building of
which the Premises are a part is damaged or destroyed to the extent that the
cost to repair is less than fifty percent (50%) of the then Replacement Cost of
the Building.
9.1.3 "Premises Building Total Destruction" shall mean if the Building
of which the Premises are a part is damaged or destroyed to the extent that the
cost to repair is fifty percent (50%) or more of the then Replacement Cost of
the Building.
9.1.4 "Office Building Project Buildings" shall mean all of the
buildings on the Office Building Project site.
9.1.5 "Office Building Project Buildings Total Destruction" shall mean
if the Office Building Project Buildings are damaged or destroyed to the extent
that the cost of repair is fifty percent (50%) or more of the then Replacement
Cost of the Office Building Project Buildings.
9.1.6 "Insured Loss" shall mean damage or destruction which was caused
by an event required to be covered by the insurance described in paragraph 8.
The fact that an Insured Loss has a deductible amount shall not make the loss an
uninsured loss.
9.1.7 "Replacement Cost" shall mean the amount of money necessary to be
spent in order to repair or rebuild the damaged area to the condition that
existed immediately prior to the damage occurring, which shall include the
unamortized cost of the improvements installed by Landlord pursuant to the Work
Letter, but shall exclude all improvements made by Tenant (other than those
installed by Landlord at Tenant's expense).
9.2 PREMISES DAMAGE; PREMISES BUILDING PARTIAL DAMAGE.
9.2.1 Insured Loss: Subject to the provisions of paragraphs 9.4 and
9.5, if at any time during the term of this Lease there is damage which is an
Insured Loss and which falls into the classification of either Premises Damage
or Premises Building Partial Damage, then Landlord shall, as soon as reasonably
possible and to the extent the required materials and labor are readily
available through usual commercial channels, at Landlord's expense, repair such
damage (but not Tenant's fixtures, equipment or tenant improvements originally
paid for by Tenant) to its condition existing at the time of the damage, and
this Lease shall continue in full force and effect.
9.2.2 Uninsured Loss: Subject to the provisions of paragraphs 9.4 and
9.5, if at any time during the term of this Lease there is damage which is not
an Insured Loss and which falls within the classification of Premises Damage or
Premises Building Partial Damage, unless caused by a negligent or willful act of
Tenant (in which event Tenant shall make the repairs at Tenant's expense), which
damage prevents Tenant from making any substantial use of the Premises, Landlord
may at Landlord's option either (i) repair such damage as soon as
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reasonably possible at Landlord's expense, in which event this Lease shall
continue in full force and effect, or (ii) give written notice to Tenant within
thirty (30) days after the date of the occurrence of such damage of Landlord's
intention to cancel and terminate this Lease as of the date of the occurrence of
such damage, in which event this Lease shall terminate as of the date of the
occurrence of such damage.
9.3 PREMISES BUILDING TOTAL DESTRUCTION; OFFICE BUILDING PROJECT TOTAL
DESTRUCTION. Subject to the provisions of paragraphs 9.4 and 9.5, if at any time
during the term of this Lease there is damage, whether or not it is an Insured
Loss, which falls into the classifications of either (i) Premises Building Total
Destruction, or (ii) Office Building Project Total Destruction, then Landlord
may at Landlord's option either (i) repair such damage or destruction as soon as
reasonably possible at Landlord's expense (to the extent the required materials
are readily available through usual commercial channels) to its condition
existing at the time of the damage, but not Tenant's fixtures, equipment or
tenant improvements, and this Lease shall continue in full force and effect, or
(ii) give written notice to Tenant within thirty (30) days after the date of
occurrence of such damage of Landlord's intention to cancel and terminate this
Lease, in which case this Lease shall terminate as of the date of the occurrence
of such damage.
9.4 DAMAGE NEAR END OF TERM.
9.4.1 Subject to paragraph 9.4.2, if at any time during the last twelve
(12) months of the term of this Lease there is substantial damage to the
Premises, Landlord may at Landlord's option cancel and terminate this Lease as
of the date of occurrence of such damage by giving written notice to Tenant of
Landlord's election to do so within 30 days after the date of occurrence of such
damage.
9.4.2 Notwithstanding paragraph 9.4.1, in the event that Tenant has an
option to extend or renew this Lease, and the time within which said option may
be exercised has not yet expired, Tenant shall exercise such option, if it is to
be exercised at all (and otherwise in accordance with the terms hereof), no
later than twenty (20) days after the occurrence of an Insured Loss falling
within the classification of Premises Damage during the last twelve (12) months
of the term of this Lease. If Tenant duly exercises such option during said
twenty (20) day period, Landlord shall, at Landlord's expense, repair such
damage, but not Tenant's fixtures, equipment or tenant improvements, as soon as
reasonably possible and this Lease shall continue in full force and effect. If
Tenant fails to exercise such option during said twenty (20) day period, then
Landlord may at Landlord's option terminate and cancel this Lease as of the
expiration of said twenty (20) day period by giving written notice to Tenant of
Landlord's election to do so within ten (10) days after the expiration of said
twenty (20) day period, notwithstanding any term or provision in the grant of
option to the contrary.
9.5 ABATEMENT OF RENT; TENANT'S REMEDIES.
9.5.1 In the event Landlord repairs or restores the Building or
Premises pursuant to the provisions of this paragraph 9, and any part of the
Premises are not usable (including loss of use due to loss of access or
essential services), the rent payable hereunder (including Tenant's Share of
Operating Expense Increase) for the period during which such damage, repair or
restoration continues shall be abated, provided (1) the damage was not the
result of the negligence of Tenant, and (2) such abatement shall only be to the
extent the operation and profitability of Tenant's business as operated from the
Premises is adversely affected. Except for said abatement of rent, if any,
Tenant shall have no claim against Landlord for any damage suffered by reason of
any such damage, destruction, repair or restoration.
9.5.2 If Landlord shall be obligated to repair or restore the Premises
or the Building under the provisions of this Paragraph 9 and shall not commence
such repair or restoration within ninety (90) days after such occurrence, or if
Landlord shall not complete the restoration and repair within two hundred
seventy (270) days after such occurrence for reasons other than delays caused by
Tenant, its employees or agents, Tenant may at Tenant's option (and, if elected,
as Tenant's sole remedy) cancel and terminate this Lease by giving Landlord
written notice of Tenant's election to do so within five (5) days following the
expiration of such ninety (90) or two
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hundred seventy (270) day period, respectively. In such event this Lease shall
terminate as of the date of such notice.
9.5.3 Tenant agrees to cooperate with Landlord in connection with any
such restoration and repair, including but not limited to the approval and/or
execution of plans and specifications required.
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 Tenant to Landlord.
9.7 WAIVER. Landlord and Tenant waive the provisions of any statute which
relate to termination of leases when leased property is destroyed and agree that
such event shall be governed by the terms of this Lease.
10. REAL PROPERTY TAXES.
10.1 PAYMENT OF TAXES. Landlord shall pay all real property taxes, as
defined in paragraph 10.3, applicable to the Office Building Project subject to
reimbursement by Tenant of Tenant's Share of such taxes in accordance with the
provisions of paragraph 4.2, except as otherwise provided in paragraph 10.2.
10.2 ADDITIONAL IMPROVEMENTS. Tenant shall not be responsible for paying
any increase in real property taxes specified in the tax assessor's records and
work sheets as being caused by additional improvements placed upon the Office
Building Project by other lessees or by Landlord for the exclusive enjoyment of
any other lessee. Tenant shall, however, pay to Landlord at the time that
Operating Expenses are payable under paragraph 4.2.3 the entirety of any
increase in real property taxes if assessed solely by reason of additional
improvements placed upon the Premises by or for Tenant or at Tenant's request.
10.3 DEFINITION OF "REAL PROPERTY TAXES". As used herein, the term "real
property taxes" shall include any form of real estate tax or assessment,
general, special, ordinary or extraordinary, and any license fee, commercial
rental tax, improvement bond or bonds, levy or tax (other than inheritance,
personal income or estate taxes) imposed on the Office Building Project or any
portion thereof by any authority having the direct or indirect power to tax,
including any city, county, state or federal government, or any school,
agricultural, sanitary, fire, street, drainage or other improvement district
thereof, as against any legal or equitable interest of Landlord in the Office
Building Project or in any portion thereof, as against Landlord's right to rent
or other income therefrom, and as against Landlord's business of leasing the
Office Building Project. The term "real property taxes" shall also include any
tax, fee, levy, assessment or charge (i) in substitution of, partially or
totally, or in lieu of any increase in any tax, fee, levy, assessment or charge
hereinabove included within the definition of "real property taxes", or (ii) the
nature of which was hereinbefore included within the definition of "real
property taxes", or (iii) which is imposed as a result of a change in ownership,
as defined by applicable local statutes for property tax purposes, of the Office
Building Project or which is added to a tax or charge hereinbefore included
within the definition of "real property taxes" by reason of such change of
ownership, or (iv) which is imposed by reason of this transaction, any
modifications or changes hereto, or any transfers hereof.
10.4 JOINT ASSESSMENT. If the improvements or property, the taxes for which
are to be paid separately by Tenant under paragraph 10.2 or 10.5, are not
separately assessed, Tenant's portion of such taxes shall be equitably
determined by Landlord from the respective valuations assigned in the assessor's
work sheets or such other information (which may include the cost of
construction) as may be reasonably available. Landlord's reasonable
determination thereof, in good faith, shall be conclusive.
10.5 PERSONAL PROPERTY TAXES.
(a) Tenant shall pay prior to delinquency all taxes assessed against
and levied upon trade fixtures, furnishings, equipment and all other personal
property of Tenant contained in the Premises or elsewhere.
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(b) If any of Tenant's personal property shall be assessed with
Landlord's real property, Tenant shall pay to Landlord the taxes attributable to
Tenant within ten (10) days after receipt of a written statement setting forth
the taxes applicable to Tenant's property.
11. UTILITIES.
11.1 SERVICES PROVIDED BY LANDLORD. As part of Operating Expenses, Landlord
shall provide heating, ventilation, air conditioning, and janitorial service as
reasonably required, reasonable amounts of electricity for normal lighting and
office machines, tap water for reasonable and normal drinking and lavatory use,
and replacement light bulbs and/or fluorescent tubes and ballasts for standard
overhead fixtures.
11.2 SERVICES EXCLUSIVE TO TENANT. Tenant shall pay for all water, gas,
heat, light, power, telephone and other utilities and services specially or
exclusively supplied and/or metered exclusively to the Premises or to Tenant,
together with any taxes thereon. If any such services are not separately metered
to the Premises, Tenant shall pay at Landlord's option, either Tenant's Share or
a reasonable portion to be determined by Landlord of all charges jointly metered
with other premises in the Building.
11.3 HOURS OF SERVICE. Said services and utilities shall be provided during
generally accepted business days and hours or such other days or hours as may
hereafter be set forth. Utilities and services required at other times shall be
subject to advance request and reimbursement by Tenant to Landlord of the cost
thereof.
11.4 EXCESS USAGE BY TENANT. Tenant shall not make connection to the
utilities except by or through existing outlets and shall not install or use
machinery or equipment in or about the Premises that uses excess water, lighting
or power, or suffer or permit any act that causes extra burden upon the
utilities or services, including, but not limited to security services, over
standard office usage for the Office Building Project. Landlord shall require
Tenant to reimburse Landlord for any excess expenses or costs that may arise out
of a breach of this subparagraph by Tenant. Landlord may, in its sole
discretion, install at Tenant's expense supplemental equipment and/or separate
metering applicable to Tenant's excess usage or loading, and Tenant will
reimburse Landlord for such excess utility use.
11.5 INTERRUPTIONS. Their shall be no abatement of rent and Landlord shall
not be liable in any respect whatsoever for the inadequacy, stoppage,
interruption or discontinuance of any utility or service due to riot, strike,
labor dispute, breakdown, accident, repair or other cause beyond Landlord's
reasonable control or in cooperation with governmental request or directions,
nor shall such inadequacy, stoppage, interruption or discontinuance be
considered an eviction or interruption of Tenant's use or possession of the
Premises.
12. ASSIGNMENT AND SUBLETTING.
12.1 LANDLORD'S CONSENT REQUIRED. Tenant shall not voluntarily or by
operation of law assign, transfer, mortgage, sublet, or otherwise transfer or
encumber all or any part of Tenant's interest in the Lease or in the Premises,
without Landlord's prior written consent, which Landlord shall not unreasonably
withhold. Landlord shall respond to Tenant's request for consent hereunder in a
reasonably timely manner and any attempted assignment, transfer, mortgage,
encumbrance or subletting without such consent shall be void, and shall
constitute a material default and breach of this Lease without the need for
notice to Tenant under paragraph 13.1. "Transfer" within the meaning of this
paragraph 12 shall include the transfer or transfers aggregating: (a) if Tenant
is a corporation, more than twenty-five percent (25%) of the voting stock of
such corporation, or (b) if Tenant is a partnership, more than twenty-five
percent (25%) of the profit and loss participation in such partnership.
12.2 TENANT AFFILIATE. Notwithstanding the provisions of paragraph 12.1
hereof, Tenant may assign or sublet the Premises, or any portion thereof,
without Landlord's consent, to any corporation which controls, is controlled by
or is under common control with Tenant, or to any corporation resulting from the
merger or consolidation with Tenant, or to any person or entity which acquires
all the assets of Tenant as a going concern of the business that is being
conducted on the Premises, all of which are referred to as "Tenant Affiliate";
provided
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that before such assignment shall be effective, (a) said assignee shall assume,
in full, the obligations of Tenant under this Lease and (b) Landlord shall be
given written notice of such assignment and assumption. Any such assignment
shall not, in any way, affect or limit the liability of Tenant 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 Tenant, the
consent of whom shall not be necessary.
12.3 TERMS AND CONDITIONS APPLICABLE TO ASSIGNMENT AND SUBLETTING.
12.3.1 Regardless of Landlord's consent, no assignment or subletting
shall release Tenant of Tenant's obligations hereunder or alter the primary
liability of Tenant to pay the rent and other sums due Landlord hereunder
including Tenant's Share of Operating Expense Increase, and to perform all other
obligations to be performed by Tenant hereunder.
12.3.2 Landlord may accept rent from any person other than Tenant
pending approval or disapproval of such assignment.
12.3.3 Neither a delay in the approval or disapproval of such
assignment or subletting, nor the acceptance of rent, shall constitute a waiver
or estoppel of Landlord's right to exercise its remedies for the breach of any
of the terms or conditions of this paragraph 12 or this Lease.
12.3.4 If Tenant's obligations under this Lease have been guaranteed
by third parties, then an assignment or sublease, and Landlord's consent
thereto, shall not be effective unless said guarantors give their written
consent to such assignment or sublease and the terms thereof.
12.3.4 The consent by Landlord to any assignment or subletting shall
not constitute a consent to any subsequent assignment or subletting by Tenant or
to any subsequent or successive assignment or subletting by the sublessee.
However, Landlord may consent to subsequent sublettings and assignments of the
sublease or any amendments or modifications thereto without notifying Tenant or
anyone else liable on the Lease or sublease and without obtaining their consent
and such action shall not relieve such persons from liability under this Lease
or said sublease; however, such persons shall not be responsible to the extent
any such amendment or modification enlarges or increases the obligations of the
Tenant or sublessee under this Lease or such sublease.
12.3.5 In the event of any default under this Lease, Landlord may
proceed directly against Tenant, any guarantors or any one else responsible for
the performance of this Lease, including the assignee or sublessee, without
first exhausting Landlord's remedies against any other person or entity
responsible therefor to Landlord, or any security held by Landlord or Tenant.
12.3.6 Landlord's written consent to any assignment or subletting of
the Premises by Tenant shall not constitute an acknowledgment that no default
then exists under this Lease of the obligations to be performed by Tenant nor
shall such consent be deemed a waiver of any then existing default, except as
may be otherwise stated by Landlord at the time.
12.3.7 The discovery of the fact that any financial statement relied
upon by Landlord in giving its consent to an assignment or subletting was
materially false shall, at Landlord's election, render Landlord's consent null
and void.
12.4 ADDITIONAL TERMS AND CONDITIONS APPLICABLE TO SUBLETTING. Regardless
of Landlord's consent, the following terms and conditions shall apply to any
subletting (but not to any permitted assignment) by Tenant of all or any part of
the Premises and shall be deemed included in all subleases under this Lease
whether or not expressly incorporated therein:
12.4.1 Tenant hereby assigns and transfers to Landlord all of Tenant's
interest in all rentals and income arising from any sublease heretofore or
hereafter made by Tenant, and Landlord may collect such rent and
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income and apply same toward Tenant's obligations under this Lease; provided,
however, that until a default shall occur in the performance of Tenant's
obligations under this Lease, Tenant may receive, collect and enjoy the rents
accruing under such sublease. Landlord shall not, by reason of this or any other
assignment of such sublease to Landlord nor by reason of the collection of the
rents from a sublessee, be deemed liable to the sublessee for any failure of
Tenant to perform and comply with any of Tenant's obligations to such sublessee
under such sublease. Tenant hereby irrevocably authorizes and directs any such
sublessee, upon receipt of a written notice from Landlord stating that a default
exists in the performance of Tenant's obligations under this Lease, to pay to
Landlord the rents due and to become due under the sublease. Tenant agrees that
such sublessee shall have the right to rely upon any such statement and request
from Landlord, and that such sublessee shall pay such rents to Landlord without
any obligation or right to inquire as to whether such default exists and
notwithstanding any notice from or claim from Tenant to the contrary. Tenant
shall have no right or claim against said sublessee or Landlord for any such
rents so paid by said sublessee to Landlord, nor shall Tenant have the right to
offset any sums due Landlord under this Lease as the result of payments made
directly to Landlord from any sublessee.
12.4.2 No sublease entered into by Tenant shall be effective unless
and until it has been approved in writing by Landlord. In entering into any
sublease, Tenant shall use only such form of sublessee as is satisfactory to
Landlord, and once approved by Landlord, such sublease shall not be changed or
modified without Landlord's prior written consent. Any sublease shall, by reason
of entering into a sublease under this Lease, be deemed, for the benefit of
Landlord to have assumed and agreed to conform and comply with each and every
obligation herein to be performed by Tenant other than such obligations as are
contrary to or inconsistent with provisions contained in a sublease to which
Landlord has expressly consented in writing.
12.4.3 In the event Tenant shall default in the performance of its
obligations under this Lease, Landlord at its option and without any obligation
to do so, may require any sublessee to attorn to Landlord, in which event
Landlord shall undertake the obligations of Tenant under such sublease from the
time of the exercise of said option to the termination of such sublease;
provided, however, Landlord shall not be liable for any prepaid rents or
security deposit paid by such sublessee to Tenant or for any other prior
defaults of Tenant under such sublease.
12.4.4 No sublessee shall further assign or sublet all or any part of
the Premises without Landlord's prior written consent.
12.4.5 With respect to any subletting to which Landlord has consented,
Landlord agrees to endeavor to deliver a copy of any notice of default by
Tenant to the sublessee. Such sublessee shall have the right to cure a default
of Tenant within three (3) days after service of said notice of default upon
such sublessee, and the sublessee shall have a right of reimbursement and
offset from and against Tenant for any such defaults cured by the sublessee.
12.5 LANDLORD'S EXPENSES. In the event Tenant shall assign or sublet the
Lease or request the consent of Landlord to any assignment or subletting or if
Tenant shall request the consent of Landlord for any act Tenant proposes to do
then Tenant shall pay Landlord's reasonable costs and expenses incurred in
connection therewith, including attorneys', architects, engineers' or other
consultants' fees. Landlord and Tenant agree that the fee will be at least
$200.00.
12.6 CONDITIONS TO CONSENT. Landlord reserves the right to condition any
approval to assign or sublet upon any reasonable factors including, without
limitation, Landlord's determination that (a) the proposed assignee or sublessee
shall conduct a business on the Premises of a quality substantially equal to
that of Tenant and consistent with the general character of the other occupants
of the Office Building Project and not in violation of any exclusives or rights
then held by other tenants, (b) the proposed assignee or sublessee is at least
as financially responsible as Tenant was expected to be at the time of the
execution of this Lease or of such assignment or subletting, whichever is
greater, (c) the proposed sublease will not result in more than two subleases of
portions of the Premises being in effect at any one time during the Term; (d)
the proposed assignee or subtenant is not an existing tenant of the Project
and/or is not negotiating with Landlord for space in the Project; (e) the
proposed
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assignee or subtenant is not a governmental entity; (f) the portion of the
Premises to be sublet or assigned is not irregular in shape with inadequate
means of ingress and egress; and (g) the proposed assignment or sublease will
not result in significant increase in the use of the parking areas or Common
Areas by the transferee's employees or visitors, and/or significantly increase
the demand upon utilities and services to be provided by Landlord to the
Premises.
13. DEFAULT; REMEDIES.
13.1 DEFAULT. The occurrence of any one or more of the following events
shall constitute a material default of this Lease by Tenant:
13.1.1 The vacation or abandonment of the Premises by Tenant. Vacation
of the Premises shall include the failure to occupy the Premises for a
continuous period of thirty (30) days or more, whether or not the rent is paid.
13.1.2 The breach by Tenant or any of the covenants, conditions or
provisions of paragraphs 7.3.1, 7.3.2 or 7.3.4 (alterations), 12.1 (assignment
or subletting), 13.1.1 (vacation or abandonment), 13.1.5 (insolvency, 13.1.6
(false statement), 16.1 (estoppel certificate), 30.2 (subordination), 33
(auctions), or 41.1 (easements), all of which are hereby deemed to be material,
non-curable defaults without the necessity of any notice by Landlord to Tenant
thereof.
13.1.3 The failure by Tenant to make any payment of rent or any other
payment required to be made by Tenant hereunder, without deduction or offset, as
and when due, where such failure shall continue for a period of three (3) days
after written notice thereof from Landlord to Tenant. In the event that Landlord
serves Tenant with a Notice to Pay Rent or Quit pursuant to applicable Unlawful
Detainer statutes such Notice to Pay Rent or Quit shall also constitute the
notice required by this subparagraph.
13.1.4 The failure by Tenant to observe or perform any of the
covenants, conditions or provisions of this Lease to be observed or performed by
Tenant other than those referenced in subparagraphs 13.1.2 and 13.1.3, above,
where such failure shall continue for a period of thirty (30) days after written
notice thereof from Landlord to Tenant; provided, however, that if the nature of
Tenant's noncompliance 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 commenced such cure within said thirty (30) day period and thereafter
diligently pursues such cure to completion. To the extent permitted by law, such
thirty (30) day notice shall constitute the sole and exclusive notice required
to be given to Tenant under applicable Unlawful Detainer statutes.
13.1.5 (i) The making by Tenant of any general arrangement or general
assignment for the benefit of creditors; (ii) Tenant becoming a "debtor" as
defined in II U.S.C. Section 101 or any successor statute thereto (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, where possession is not restored to Tenant within
thirty (30) days; or (iv) the attachment, execution or other judicial seizure
of substantially all of Tenant's assets located at the Premises or of Tenant's
interest in this Lease, where such seizure is not discharged within thirty (30)
days. In the event that any provision of this paragraph 13.1.5 is contrary to
any applicable law, such provision shall be of no force or effect.
13.1.6 The discovery by Landlord that any financial statement given to
Landlord by Tenant, or its successor in interest or by any guarantor of Tenant's
obligation hereunder, was materially false.
13.2 REMEDIES. In the event of any default or breach of this Lease by
Tenant, Landlord may at any time thereafter, with or without notice or demand
and without limiting Landlord in the exercise of any right or remedy which
Landlord may have by reason of such default or breach:
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13.2.1 Terminate Tenant's right to possession of the Premises by any
lawful means, in which case this Lease and the term hereof shall terminate and
Tenant shall immediately surrender possession of the Premises to Landlord. In
such event Landlord shall be entitled to recover from Tenant all damages
incurred by Landlord by reason of Tenant's default including, but not limited
to, all unpaid rent through to the date of award by court having jurisdiction,
together with interest on such amount at fourteen percent (14%), the cost of
recovering possession of the Premises; expenses of reletting, including
necessary renovation and alteration of the Premises, reasonable attorneys' fees,
and any real estate commission actually paid; 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 Tenant proves could be reasonably avoided;
that portion of the leasing commission paid by Landlord pursuant to paragraph 15
applicable to the unexpired term of this Lease.
13.2.2 Maintain Tenant's right to possession in which case this Lease
shall continue in effect whether or not Tenant shall have vacated or abandoned
the Premises. In such event Landlord shall be entitled to enforce all of
Landlord's rights and remedies under this Lease, including the right to recover
the rent as it becomes due hereunder.
13.2.3 Pursue any other remedy now or hereafter available to Landlord
under the laws or judicial decisions of the state wherein the Premises are
located. Unpaid installments of rent and other unpaid monetary obligations of
Tenant under the terms of this Lease shall bear interest from the date due at
fourteen percent (14%) per annum.
13.3 DEFAULT BY LANDLORD. Landlord shall not be in default unless Landlord
fails to perform obligations required of Landlord within a reasonable time, but
in no event later than thirty (30) days after written notice by Tenant to
Landlord 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 Tenant
in writing, specifying wherein Landlord has failed to perform such obligation;
provided, however, that if the nature of Landlord's obligation is such that more
than thirty (30) days are reasonably required for performance then Landlord
shall not be in default if Landlord commences performance within such 30-day
period and thereafter diligently pursues the same to completion.
13.4 LATE CHARGES. Tenant hereby acknowledges that late payment by Tenant
to Landlord of Base Rent, Tenant's Share of Operating Expense increase or other
sums due hereunder will cause Landlord to incur costs 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 Landlord by the terms of any mortgage or
trust deed covering the Office Building Project. Accordingly, if any installment
of Base Rent, Operating Expense Increase, or any other sum due from Tenant shall
not be received by Landlord or Landlord's designee within ten (10) days after
such amount shall be due, then, without any requirement for notice to Tenant,
Tenant shall pay to Landlord a late charge equal to six percent (6%) of such
overdue amount, plus interest on such overdue amount at the rate specified above
in paragraph 13.2.3. The parties hereby agree that such late charge represents a
fair and reasonable estimate of the costs Landlord will incur by reason of late
payment by Tenant. Acceptance of such late charge by Landlord shall in no event
constitute a waiver of Tenant's default with respect to such overdue amount, nor
prevent Landlord from exercising any of the other rights and remedies granted
hereunder.
14. CONDEMNATION. If the Premises or any portion thereof or the Office Building
Project 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; provided that if so
much of the Premises or the Office Building Project are taken by such
condemnation as would substantially and adversely affect the operation and
profitability of Tenant's business conducted from the Premises, Tenant shall
have the option, to be exercised only in writing within thirty (30) days after
Landlord shall have given Tenant written notice of such taking (or in the
absence of such notice, within thirty (30) days after the condemning authority
shall have taken possession), to terminate this Lease as of the date the
condemning authority takes such possession. If Tenant does not terminate this
Lease in
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accordance with the foregoing, this Lease shall remain in full force and effect
as to the portion of the Premises remaining, except that the rent and Tenant's
Share of Operating Expense Increase shall be reduced in the proportion that the
floor area of the Premises taken bears to the total floor area of the Premises.
Common Areas taken shall be excluded from the Common Areas usable by Tenant and
no reduction of rent shall occur with respect thereto or by reason thereof.
Landlord shall have the option in its sole discretion to terminate this Lease as
of the taking of possession by the condemning authority, by giving written
notice to Tenant of such election within thirty days after receipt of notice of
a taking by condemnation of any part of the Premises or the Office Building
Project. Any award for the taking of all or any part of the Premises or the
Office Building Project under the power of eminent domain or any payment made
under threat of the exercise of such power shall be the property of Landlord,
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 Tenant shall be entitled to any separate award for loss or damage
to Tenant's trade fixtures, removable personal property and unamortized tenant
improvements that have been paid for by Tenant. For that purpose the cost of
such improvements shall be amortized over the original term of this Lease
excluding any options. In the event that this Lease is not terminated by reason
of such condemnation, Landlord shall to the extent of severance damages received
by Landlord in connection with such condemnation, repair any damage to the
Premises caused by such condemnation except to the extent that Tenant has been
reimbursed therefor by the condemning authority. Tenant shall pay any amount in
excess of such severance damages required to complete such repair.
15. BROKER'S FEE.
15.1 Landlord shall pay to the broker(s) identified in paragraph 1.12 of
the Basic Lease Provisions jointly, or in such separate shares as they may
mutually designate in writing, a fee as set forth in a separate agreement
between Landlord and said broker(s).
15.2 Tenant and Landlord each represent and warrant to the other that
neither has had any dealings with any person, firm, broker or finder (other than
the person(s), if any, whose names are set forth in paragraph 1.12 of the Basic
Lease Provisions) in connection with the negotiation of this Lease and/or the
consummation of the transaction contemplated hereby, and no other broker or
other person, firm or entity is entitled to any commission or finder's fee in
connection with said transaction and Tenant and Landlord do each hereby
indemnify and hold the other harmless from and against any costs, expenses,
attorney's fees or liability for compensation or charges which may be claimed by
any such unnamed broker, finder or other similar party by reason of any dealings
or actions of the indemnifying party.
16. ESTOPPEL CERTIFICATE; FINANCIAL STATEMENTS.
16.1 Each party (as "responding party") shall at any time upon not less
than ten (10) days' prior written notice from the other party ("requesting
party") execute, acknowledge and deliver to the requesting party 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, (ii) acknowledging
that there are not, to the responding party's knowledge, any uncured defaults on
the part of the requesting party, or specifying such defaults if any are claimed
and (iii) such other matters as are reasonably requested by the requesting
party. Any such statement may be conclusively relied upon by any prospective
purchaser or encumbrancer of the Office Building Project or of the business of
Tenant.
16.2 At the requesting party's option, the failure to deliver such
statement within such time shall be a material default of this Lease by the
party who is to respond, without any further notice to such party, or it shall
be conclusive upon such party that (i) this Lease is in full force and effect,
without modification except as may be represented by the requesting party, (ii)
there are no uncured defaults in the requesting party's performance, and (iii)
if Landlord is the requesting party, not more than one month's rent has been
paid in advance.
16.3 If Landlord desires to finance, refinance, or sell the Office Building
Project, or any part thereof, Tenant hereby agrees to deliver to any lender or
purchaser designated by Landlord such financial statements of
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Tenant as may be reasonably required by such lender or purchaser. Such
statements shall include the past three (3) years' financial statements of
Tenant. All such financial statements shall be received by Landlord and such
lender or purchaser in confidence and shall be used only for the purposes herein
set forth.
17. LANDLORD'S LIABILITY. The term "Landlord" as used herein shall mean only
the owner or owners. at the time in question, of the fee title or a lessee's
interest in a ground lease of the Office Building Project and except as
expressly provided in paragraph 15, in the event of any transfer of such title
or interest, Landlord herein named (and in case of any subsequent transfers then
the grantor) shall be relieved from and after the date of such transfer of all
liability as respects Landlord's obligations thereafter to be performed,
provided that any funds in the hands of Landlord or the then grantor at the time
of such transfer, in which Tenant has an interest, shall be delivered to the
grantee. The obligations contained in this Lease to be performed by Landlord
shall, subject as aforesaid, be binding on Landlord's successors and assigns,
only during their respective periods of ownership. Notwithstanding
anything contained in this Lease to the contrary, the obligations of Landlord
under this Lease (including any actual or alleged breach or default by Landlord)
do not constitute personal obligations of the individual partners, directors,
officers or shareholders of Landlord or Landlord's partners, and Tenant shall
not seek recourse against the individual partners, directors, officers or
shareholders of Landlord or Landlord's partners, or any of their personal assets
for satisfaction of any liability with respect to this Lease. Landlord's total
liability under this Lease shall be limited to Landlord's ownership interest in
the Office Building Project.
18. SEVERABILITY. The invalidity of any provision of this Lease as determined
by a court of competent jurisdiction shall in no way affect the validity of any
other provision hereof.
19. INTEREST ON PAST-DUE OBLIGATIONS. Except as expressly herein provided, any
amount due to Landlord not paid when due shall bear interest at fourteen percent
(14%) from the due date. Payment of such interest shall not excuse or cure any
default by Tenant under this Lease; provided, however, that interest shall not
be payable on late charges incurred by Tenant. Interest, however, shall be
payable on any amounts upon which late charges are paid by Tenant.
20. TIME OF ESSENCE. Time is of the essence with respect to the obligations to
be performed under this Lease.
21. ADDITIONAL RENT. All monetary obligations of Tenant to Landlord under the
terms of this Lease, including, but not limited to, Tenant's Share of Operating
Expense Increase and any other expenses payable by Tenant hereunder shall be
deemed to be rent.
22. INCORPORATION OF PRIOR AGREEMENTS; AMENDMENTS. This Lease contains all
agreements of the parties with respect to any matter mentioned herein. No prior
or contemporaneous 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, Tenant hereby acknowledges that neither the real estate broker
listed in paragraph 15 hereof nor any cooperating broker on this transaction nor
the Landlord or any employee or agents of any of said persons has made any oral
or written warranties or representations to Tenant relative to the condition or
use by Tenant of the Premises or the Office Building Project and Tenant
acknowledges that Tenant assumes all responsibility regarding the Occupational
Safety Health Act, the Americans with Disabilities Act, the legal use and
adaptability of the Premises and the compliance thereof with all applicable laws
and regulations in effect during the term of this Lease.
23. NOTICES. Any notice required or permitted to be given hereunder shall be in
writing and may be given by personal delivery or by certified or registered
mail, and shall be deemed sufficiently given if delivered or addressed to Tenant
or to Landlord at the address noted below the signature of the respective
parties. Mailed notices shall be deemed given upon actual receipt at the address
required, or forty-eight (48) hours following deposit in the mail, postage
prepaid, whichever first occurs. Either party may by notice to the other specify
a different address for notice purposes except that upon Tenant's taking
possession of the Premises, the Premises shall constitute Tenant's address for
notice purposes. A copy of all notices required or permitted to be given to
Landlord hereunder shall be
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concurrently transmitted to such party or parties at such addresses as Landlord
may from time to time hereafter designate by notice to Tenant.
24. WAIVERS. No waiver by Landlord of any provision hereof shall be deemed a
waiver of any other provision hereof or of any subsequent breach by Tenant of
the same or any other provision. Landlord's consent to, or approval of, any act
shall not be deemed to render unnecessary the obtaining of Landlord's consent to
or approval of any subsequent act by Tenant. The acceptance of rent hereunder by
Landlord shall not be a waiver of any preceding breach by Tenant of any
provision hereof, 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.
25. RECORDING. Neither this Lease nor a short form memorandum thereof shall be
recorded without Landlord's consent.
26. HOLDING OVER. If Tenant, with Landlord's consent, remains in possession of
the Premises or any part thereof after the expiration of the term hereof, such
occupancy shall be a tenancy from month to month upon all the provisions of this
Lease pertaining to the obligations of Tenant, except that the rent payable
shall be two hundred percent (200%) of the rent payable immediately preceding
the termination date of this Lease, and all Options, if any, granted under the
terms of this Lease shall be deemed terminated and be of no further effect
during said month to month tenancy.
27. 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.
28. COVENANTS AND CONDITIONS. Each provision of this Lease performable by
Tenant shall be deemed both a covenant and a condition.
29. BINDING EFFECT; CHOICE OF LAW. Subject to any provisions hereof restricting
assignment or subletting by Tenant and subject to the provisions of paragraph
17, this Lease shall bind the parties, their personal representatives,
successors and assigns. This Lease shall be governed by the laws of the State
where the Office Building Project is located and any litigation concerning this
Lease between the parties hereto shall be initiated in the county in which the
Office Building Project is located.
30. SUBORDINATION.
30.1 This Lease, and any Option or right of first refusal granted hereby,
at Landlord's option, shall be subordinate to any ground lease, mortgage, deed
of trust, or any other hypothecation or security now or hereafter placed upon
the Office Building Project and to any and all advances made on the security
thereof and to all renewals, modifications, consolidations, replacements and
extensions thereof. If any mortgagee, trustee or ground lessor shall elect to
have this Lease and any Options granted hereby prior to the lien of its
mortgage, deed of trust or ground lease, and shall give written notice thereof
to Tenant, this Lease and such Options shall be deemed prior to such mortgage,
deed of trust or ground lease, whether this Lease or such Options are dated
prior or subsequent to the date of said mortgage, deed of trust or ground lease
or the date of recording thereof.
30.2 Tenant agrees to execute any documents required to effectuate an
attornment, a subordination, or to make this Lease or any Option granted herein
prior to the lien of any mortgage, deed of trust or ground lease, as the case
may be. Tenant's failure to execute such documents within ten (10) days after
written demand shall constitute a material default by Tenant hereunder without
further notice to Tenant or, at Landlord's option, Landlord shall execute such
documents on behalf of Tenant as Tenant's attorney-in-fact. Tenant does hereby
make, constitute and irrevocably appoint Landlord as Tenant's attorney-in-fact
and in Tenant's name, place and stead, to execute such documents in accordance
with this paragraph 30.2.
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31. ATTORNEYS' FEES.
31.1 If either party named herein brings an action to enforce the terms
hereof or declare rights hereunder, the prevailing party in any such action,
trial or appeal thereon, shall be entitled to his reasonable attorneys' fees to
be paid by the losing party as fixed by the court in the same or a separate
suit, and whether or not such action is pursued to decision or judgment.
31.2 The attorneys' fees award shall not be computed in accordance with any
court fee schedule, but shall be such as to fully reimburse all attorneys' fees
reasonably incurred in good faith.
31.3 Landlord shall be entitled to reasonable attorneys' fees and all other
costs and expenses incurred in the preparation and service of notice of default
and consultations in connection therewith whether or not a legal transaction is
subsequently commenced in connection with such default.
32. LANDLORD'S ACCESS.
32.1 Landlord and Landlord's agents shall have the right to enter the
Premises at reasonable times for the purpose of inspecting the same, performing
any services required of Landlord, showing the same to prospective purchasers,
lenders, or lessees, taking such safety measures, erecting such scaffolding or
other necessary structures, making such alterations, repairs, improvements or
additions to the Premises or to the Office Building Project as Landlord may
reasonably deem necessary or desirable and the erecting, using and maintaining
of utilities, services, pipes and conduits through the Premises and/or other
premises as long as there is no material adverse effect to Tenant's use of the
Premises. Landlord may at any time place on or about the Premises or the
Building any ordinary "For Sale" signs and Landlord may at any time during the
last 120 days of the term hereof place on or about the Premises any ordinary
"For Lease" signs.
32.2 All activities of Landlord pursuant to this paragraph shall be without
abatement of rent, nor shall Landlord have any liability to Tenant for the same,
nor shall such activities be considered an eviction or disturbance of Tenant's
use or possession of the Premises.
32.3 Landlord shall have the right to retain keys to the Premises and to
unlock all doors in or upon the Premises other than to files, vaults and safes,
and in the case of emergency to enter the Premises by any reasonably appropriate
means, and any such entry shall not be deemed a forcible or unlawful entry or
detainer of the Premises or an eviction. Tenant waives any charges for damages
or injuries or interference with Tenant's property or business in connection
therewith.
33. AUCTIONS. Tenant shall not conduct, nor permit to be conducted, either
voluntarily or involuntarily, any auction upon the Premises or the Common Areas
without first having obtained Landlord's prior written consent. Notwithstanding
anything to the contrary in this Lease, Landlord shall not be obligated to
exercise any standard of reasonableness in determining whether to grant such
consent. The holding of any auction on the Premises or Common Areas in violation
of this paragraph shall constitute a material default of this Lease.
34. SIGNS. Tenant shall not place any sign upon the Premises or the Office
Building Project without Landlord's prior written consent. Under no
circumstances shall Tenant place a sign on any roof or in the Common Areas of
the Office Building Project.
35. MERGER. The voluntary or other surrender of this Lease by Tenant, or a
mutual cancellation thereof, or a termination by Landlord, shall not work a
merger, and shall, at the option of Landlord, terminate all or any existing
subtenancies or may, at the option of Landlord, operate as an assignment to
Landlord of any or all of such subtenancies.
36. CONSENTS. Except for paragraphs 33 (auctions) and 34 (signs) hereof,
wherever in this Lease the consent of one party is required to an act of the
other party such consent shall not be unreasonably withheld or delayed.
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37. GUARANTOR. In the event that there is a guarantor of this Lease, said
guarantor shall have the same obligations as Tenant under this Lease.
38. QUIET POSSESSION. Upon Tenant paying the rent for the Premises and
observing and performing all of the covenants, conditions and provisions on
Tenant's part to be observed and performed hereunder, Tenant shall have quiet
possession of the Premises for the entire term hereof subject to all of the
provisions of this Lease. The individuals executing this Lease on behalf of
Landlord represent and warrant to Tenant that they are fully authorized and
legally capable of executing this Lease on behalf of Landlord and that such
execution is binding upon all parties holding an ownership interest in the
Office Building Project.
39. OPTIONS.
39.1 DEFINITION. As used in this paragraph the word "Option" has the
following meaning: (1) the right or option to extend the term of this Lease or
to renew this Lease or to extend or renew any lease that Tenant has on other
property of Landlord; (2) The option of right of first refusal to lease the
Premises or the right of first offer to lease the Premises or the right of first
refusal to lease other space within the Office Building Project or other
property of Landlord; (3) the right or option to purchase the Premises or the
Office Building Project, or the right of first refusal to purchase the Premises
or the Office Building Project or the right of first offer to purchase the
Premises or the Office Building Project, or the right or option to purchase
other property of Landlord, or the right of first refusal to purchase other
property of Landlord or the right of first offer the purchase other property of
Landlord.
39.2 OPTIONS PERSONAL. Each Option granted to Tenant in this Lease is
personal to the original Tenant and may be exercised only by the original Tenant
while occupying the Premises who does so without the intent of thereafter
assigning this Lease or subletting the Premises or any portion thereof, and may
not be exercised or be assigned, voluntarily or involuntarily, by or to any
person or entity other than the Tenant; provided, however, that an Option may be
exercised by or assigned to any Lease Affiliate as defined in paragraph 12.2 of
this Lease. The Options, if any, herein granted to Tenant are not assignable
separate and apart from this Lease, nor may any Option be separated from this
Lease in any manner, either by reservation or otherwise.
39.3 MULTIPLE OPTIONS. In the event that Tenant has any multiple options to
extend or renew this Lease, a later option cannot be exercised unless the prior
option to extend or renew this Lease has been so exercised.
39.4 EFFECT OF DEFAULT ON OPTIONS.
(a) Tenant shall have no right to exercise an Option, notwithstanding
any provision in the grant of Option to the contrary, (i) during the time
commencing from the date Landlord gives to Tenant a notice of default pursuant
to paragraph 13.1(c) or 13.1(d) and continuing until the noncompliance alleged
in said notice of default is cured, or (ii) during the period of time commencing
on the day after a monetary obligation to Landlord is due from Tenant and unpaid
(without any necessity for notice thereof to Tenant) and continuing until the
obligation is paid, or (iii) in the event that Landlord has given to Tenant
three or more notices of default under paragraph 13.1 (c), or paragraph 13.1
(d), whether or not the defaults are cured, during the 12 month period of time
immediately prior to the time that Tenant attempts to exercise the subject
Option, or (iv) if Tenant has committed any non-curable breach, including
without limitation those described in paragraph 13.1 (b), or is otherwise in
default of any of the terms, covenants or conditions of this Lease.
(b) The period of time within which an Option may be exercised shall
not be extended or enlarged by reason of Tenant's inability to exercise an
Option because of the provisions of paragraph 39.4(a).
(c) All rights of Tenant under the provisions of an Option shall
terminate and be of no further force or effect, notwithstanding Tenant's due and
timely exercise of the Option, if, after such exercise and during the term of
this Lease, (i) Tenant fails to pay to Landlord a monetary obligation of Tenant
for a period of
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thirty (30) days after such obligation becomes due (without any necessity of
Landlord to give notice thereof to Tenant), or (ii) Tenant fails to commence to
cure a default specified in paragraph 13.1 (d) within thirty (30) days after
the date that Landlord gives notice to Tenant of such default and/or Tenant
fails thereafter to diligently prosecute said cure to completion, or (iii)
Landlord gives to Tenant three or more notices of default under paragraph
13.1(c) or paragraph 13.1(d) whether or not the defaults are cured, or (iv) if
Tenant has committed any non-curable breach, including without limitation those
described in paragraph 13.1(b), or is otherwise in default of any of the
terms, covenants and conditions of this Lease.
40. SECURITY MEASURES-LANDLORD'S RESERVATIONS.
40.1 Tenant hereby acknowledges that Landlord shall have no obligation
whatsoever to provide guard service or other security measures for the benefit
of the Premises or the Office Building Project. Tenant assumes all
responsibility for the protection of Tenant, its agents, and invitees and the
property of Tenant and of Tenant's agents and invitees from acts of third
parties. Nothing herein contained shall prevent Landlord, at Landlord's sole
option, from providing security protection for the Office Building Project or
any part thereof, in which event the cost thereof shall be included within the
definition of Operating Expenses, as set forth in paragraph 4.2.2.
40.2 Landlord shall have the following rights:
(a) To change the name, address or title of the Office Building
Project or building in which the Premises are located upon not less than 60 days
prior written notice;
(b) To, at Tenant's expense, provide and install Building standard
graphics on the door of the Premises and such portions of the Common Areas as
Landlord shall reasonably deem appropriate;
(c) To permit any lessee the exclusive right to conduct any business
as long as such exclusive does not conflict with any rights expressly given
herein; or
(d) To place such signs, notices or displays as Landlord reasonably
deems necessary or advisable upon the roof, exterior of the buildings or the
Office Building Project or on pole signs in the Common Areas.
40.3 Tenant shall not:
(a) Use a representation (photographic or otherwise) of the Building
or the Office Building Project or their name(s) in connection with Tenant's
business; or
(b) Suffer or permit anyone, except in emergency, to go upon the roof
of the Building.
41. EASEMENTS.
41.1 Landlord reserves to itself the right, from time to time, to grant
such easements, rights and dedications that Landlord deems necessary or
desirable, and to cause the recordation of Parcel Maps and restrictions, so long
as such easements, rights, dedications, Maps and restrictions do not
unreasonably interfere with the use of the Premises by Tenant. Tenant shall sign
any of the aforementioned documents upon request of Landlord and failure to do
so shall constitute a material default of this Lease by Tenant without the need
for further notice to Tenant.
41.2 The obstruction of Tenant's view, air or light by any structure
erected in the vicinity of the Building, whether by Landlord or third parties,
shall in no way affect this Lease or impose any liability upon Landlord.
42. PERFORMANCE UNDER PROTEST. If at any time a dispute shall arise as to any
amount or sum of money to be paid by one party to the other under the provisions
hereof, the party against whom the obligation to pay the money is asserted shall
have the right to make payment "under protest" and such payment shall not be
regarded as a
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voluntary payment, and there shall survive the right on the part of said party
to institute suit for recovery of such sum. If it shall be adjudged that there
was no legal obligation on the part of said party to pay such sum or any part
thereof, said party shall be entitled to recover such sum or so much thereof as
it was not legally required to pay under the provisions of this Lease.
43. AUTHORITY. If Tenant is a corporation, trust, or general or limited
partnership, Tenant, and each individual executing this Lease on behalf of such
entity represent and warrant that such individual is duly authorized to execute
and deliver this Lease on behalf of said entity. If Tenant is a corporation,
trust or partnership, Tenant shall, within thirty (30) days after execution of
this Lease, deliver to Landlord evidence of such authority satisfactory to
Landlord.
44. CONFLICT. Any conflict between the printed provisions, Exhibits or Addenda
of this Lease and the typewritten or handwritten provisions, if any, shall be
controlled by the typewritten or handwritten provisions.
45. NO OFFER. Preparation of this Lease by Landlord or Landlord's agent and
submission of same to Tenant shall not be deemed an offer to Tenant to lease.
This Lease shall become binding upon Landlord and Tenant only when fully
executed by both parties.
46. LENDER MODIFICATION. Tenant agrees to make such reasonable modifications to
this Lease as may be reasonably required by an institutional lender in
connection with the obtaining of normal financing or refinancing of the Office
Building Project.
47. MULTIPLE PARTIES. If more than one person or entity is named as either
Landlord or Tenant herein, except as otherwise expressly provided herein, the
obligations of the Landlord or Tenant herein shall be the joint and several
responsibility of all persons or entities named herein as such Landlord or
Tenant, respectively.
48. INTENTIONALLY OMITTED.
49. 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, agents and attorneys, shall not intentionally and/or voluntarily
disclose the terms and conditions of this Lease to any newspaper or other
publication or any other tenant or apparent prospective tenant of the Building
or other portion of the Office Building Project, or real estate agent, 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.
50. ATTACHMENTS. Attached hereto are the following documents which constitute a
part of this Lease:
Exhibit "A" - Floor Plan of Premises
Exhibit "B" - Rules and Regulations
LANDLORD AND TENANT HAVE CAREFULLY READ AND REVIEWED THIS LEASE AND EACH TERM
AND PROVISION CONTAINED HEREIN AND, BY EXECUTION OF THIS LEASE, SHOW THEIR
INFORMED AND VOLUNTARY CONSENT THERETO. THE PARTIES HEREBY AGREE THAT, AT THE
TIME THIS LEASE IS EXECUTED, THE TERMS OF THIS LEASE ARE COMMERCIALLY REASONABLE
AND EFFECTUATE THE INTENT AND PURPOSE OF LANDLORD AND TENANT WITH RESPECT TO THE
TERMS. NO REPRESENTATION OR RECOMMENDATION IS MADE BY THE LANDLORD OR BROKERS 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.
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LANDLORD TENANT
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ INTERNET CENTURY, INC.,
CORPORATION, a Delaware corporation a Nevada corporation
By: PMRealty Advisors, Inc. By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
a Delaware corporation -------------------------
Its: Investment Advisor
Its: Treasurer
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ ------------------------
-------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------
Its: Vice President
----------------------- Its: Chief Executive Officer
------------------------
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------- Address for Notices:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Internet Century
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇
▇▇▇: Assistant Secretary ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------
Address for Notices:
PMRealty Advisors, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Asset Management - Ofc. Bldg. Div.
With a copy to:
CB Commercial Real Estate Services, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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THE PREMISES
[DIAGRAM]
scale: 1/16" = 1'-0"
EXHIBIT "A"
32
RULES AND REGULATIONS FOR
STANDARD OFFICE LEASE
GENERAL RULES
1. Tenant shall not suffer or permit the obstruction of any, Common
Areas, including driveways, walkways and stairways.
2. Landlord reserves the right to refuse access to any persons Landlord
in good faith judges to be a threat to the safety, reputation, or property of
the Office Building Project and its occupants.
3. Tenant shall not make or permit any noise or odors that annoy or
interfere with other Tenants or persons having business within the Office
Building Project.
4. Tenant shall not keep animals or birds within the Office Building
Project, and shall not bring bicycles, motorcycles or other vehicles into areas
not designated as authorized for same.
5. Tenant shall not make, suffer or permit litter except in appropriate
receptacles for that purpose.
6. Tenant shall not alter any lock or install new or additional locks
or bolts.
7. Tenant shall be responsible for the inappropriate use of any toilet
rooms, plumbing or other utilities. No foreign substances of any kind are to be
inserted therein.
8. Tenant shall not deface the walls, partitions or other surfaces of
the premises or Office Building Project.
9. Tenant shall not suffer or permit anything in or around the Premises
or Building that causes excessive vibration or floor loading in any part of the
Office Building Project.
10. Furniture, significant freight and equipment shall be moved into or
out of the building only with the Landlord's knowledge and consent, and subject
to such reasonable limitations, techniques and timing, as may be designated by
Landlord. Tenant shall be responsible for any damage to the Office Building
Project arising from any such activity.
11. Tenant shall not employ any service or contractor for services or
work to be performed in the Building, except as approved by Landlord.
12. Landlord reserves the right to close and lock the Building on
Saturdays, Sundays and legal holidays, and on other days between the hours of
7:00 P.M. and 7:00 A.M. of the following day. If Tenant uses the Premises during
such periods, Tenant shall be responsible for securely locking any doors it may
have opened for entry.
13. Tenant shall return all keys at the termination of its tenancy and
shall be responsible for the cost of replacing any keys that are lost.
14. No window coverings, shades or awnings shall be installed or used
by Tenant.
15. No Tenant, employee or invitee shall go upon the roof of the
Building.
EXHIBIT "B"
33
16. Tenant shall not suffer or permit smoking or carrying of lighted
cigars or cigarettes in areas reasonably designated by Landlord or by applicable
governmental agencies as non-smoking areas.
17. Tenant shall not use any method of heating or air conditioning
other than as provided by Landlord.
18. Tenant shall not install, maintain or operate any vending machines
upon the Premises without Landlord's written consent.
19. The Premises shall not be used for lodging or manufacturing,
cooking or food preparation (microwave ovens for Tenant's personal use
excepted).
20. Tenant shall comply with all safety, fire protection and evacuation
regulations established by Landlord or any applicable governmental agency.
21. Landlord reserves the right to waive any one of these rules or
regulations, and/or as to any particular Tenant, and any such waiver shall not
constitute a waiver of any other rule or regulation or any subsequent
application thereof to such Tenant.
22. Tenant assumes all risks from theft or vandalism and agrees to keep
its Premises locked as may be required.
23. Landlord reserves the right to make such other reasonable rules and
regulations as it may from time to time deem necessary for the appropriate
operation and safety of the Office Building Project and its occupants. Tenant
agrees to abide by these and such rules and regulations.
24. Hazardous Substances.
(a) Neither Tenant, its successors or assigns, nor any permitted
assignee, subtenant, licensee or other person or entity acting at the direction
or with the consent of Tenant shall (i) manufacture, treat, use, store or
dispose of any "Hazardous Substance" (as hereinafter defined) on the Premises,
the Office Building Project, or any part thereof or (ii) permit the "release"
(as hereinafter defined) of a Hazardous Substance on or from the Premises, the
Office Building Project, or any part thereof unless manufacturing, treatment,
use, storage, disposal, or release of a hazardous substance is approved in
writing by Landlord.
(b) Tenant covenants at its cost and expense, to protect, indemnify,
defend and save Landlord harmless against and from any and all damages, losses,
liabilities, obligations, penalties, claims, litigation, demands, defenses,
judgments, suits, proceedings, costs, or expenses of any kind or nature
(including, without limitation, attorney's fees and expert's fees) which may at
any time be imposed upon, incurred by or asserted or awarded against Landlord
arising from or out of any Hazardous Substance on, in, under or affecting the
Premises, Office Building Project, or any part thereof occurring as a result of
any act or omission by Tenant after the Commencement Date, its successors or
assigns, or any assignee, permitted subtenant, licensee or other person or
entity acting at the direction, knowledge or implied consent of Tenant.
(c) The term "Hazardous Substance" shall mean any waste, substance or
material (i) identified in Section 101(14) of the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as the same may be amended
from time to time (hereinafter called "CERCLA", or (ii) determined to be
hazardous, toxic, a pollutant or contaminant, under federal, state, or local
statute, law, ordinance, rule, regulation or judicial or administrative order or
decision, as same may be amended from time to time, including, but not limited
to, petroleum and petroleum products. The term "release" shall have the meaning
given to such term in Section 101(22) of CERCLA.
B-2
34
PARKING RULES
1. Parking areas shall be used only for parking by vehicles no longer
than full size, passenger automobiles herein called "Permitted Size Vehicles".
2. Tenant shall not permit or allow any vehicles that belong to or are
controlled by Tenant or Tenant's employees, suppliers, shippers, customers, or
invitees to be loaded, unloaded, or parked in areas other than those designated
by Landlord for such activities.
3. Parking stickers or identification devices shall be the property of
Landlord and be returned to Landlord by the holder thereof upon termination of
the holder's parking privileges. Tenant will pay such replacement charge as is
reasonably established by Landlord for the loss of such devices.
4. Landlord reserves the right to refuse the sale of monthly
identification devices to any person or entity that willfully refuses to comply
with the applicable rules, regulations, laws and/or agreements.
5. Landlord reserves the right to relocate all or a part of parking
spaces from floor to floor, within one floor, and/or to reasonably adjacent
offsite location(s), and to reasonably allocate them between compact and
standard size spaces, as long as the same complies with applicable laws,
ordinances and regulations.
6. Users of the parking area will obey all posted signs and park only
in the areas designated for vehicle parking.
7. Unless otherwise instructed, every person using the parking area is
required to park and lock his own vehicle. Landlord will not be responsible for
any damage to vehicles, injury to persons or loss of property, all of which
risks are assumed by the party using the parking area.
8. Validation, if established, will be permissible only by such method
or methods as Landlord and/or its licensee may establish at rates generally
applicable to visitor parking.
9. The maintenance, washing, waxing or cleaning of vehicles in the
parking area is prohibited.
10. Tenant shall be responsible for seeing that all of its employees,
agents and invitees comply with the applicable parking rules, regulations, laws
and agreements.
11. Landlord reserves the right to modify these rules and/or adopt
such other reasonable and non-discriminatory rules and regulations as it may
deem necessary for the proper operation of the parking area.
12. Such parking use as is herein provided is intended merely as a
license only and no bailment is intended or shall be created hereby.
B-3
35
STORAGE SPACE AGREEMENT
This document will serve as a Storage Space Agreement (called "Agreement"
herein), between the parties hereto as follows:
1. 101 Convention Center Drive Corporation, hereto referred to as
"Lessor", hereby leases to Internet Century, Inc., herein referred to
as "Lessee", approximately 69 square feet of storage space (the
"Storage Space") located at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇
▇▇▇▇▇. Said Storage Space is designated as PS-1-10, the location of
which is indicated on the floor plan attached hereto as Exhibit "A".
2. The term of the Agreement shall be month to month commencing on
September 16, 1998 and may be terminated by either party upon 30 days
written notice.
3. The monthly rental for said Storage Space shall be in the amount of
$41.4, payable to Lessor in advance on the first day of each and every
calendar month that this Agreement is in effect. All rental payments as
provided for hereunder shall be by check, payable to ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ Corporation, and shall be mailed or delivered to Lessor at
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ #▇▇▇. ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
4. Lessee acknowledges having inspected said Storage Space and accepts
same in its present condition (as of the date hereof) as adequate for
the purpose set forth in Paragraph 5 hereof.
5. Said Storage Space shall be used only for the purpose of storing
Lessee's personal property, and (except for lighting) no utility
service whatsoever will be supplied to said Storage Space. No hazardous
materials may be stored in the Storage Space.
6. Lessee agrees to fully indemnify Lessor with respect to any liability,
damages, expenses, attorney's fees, causes of action, suits, fines,
claims or judgements arising from injury to any personal or damage to
any property, arising out of or connected with the use of said Storage
Space by Lessee. In addition, Lessee shall arrange for liability
insurance to cover its use of said Storage Space. Lessee shall not do
or permit to be done anything which shall invalidate the Lessor's
insurance coverage referred to herein.
7. Upon termination of this Agreement, Lessee shall remove all property
placed by it in said Storage Space, and shall promptly repair any
damage to said Storage Space caused by Lessee's use of same. Said
obligations shall be performed at Lessee's own expense and risk. Any
property which is not promptly removed from said Storage Space
following termination shall be either stored in said Storage Space or
removed and stored elsewhere, in either case, entirely at Lessee's
expense, and (if Lessee does not timely claim such property and
reimburse Lessor for the aforementioned expenses) disposed of by
Lessor.
Page 1 of 2
36
8. Lessee shall be responsible for securing (e.g. by means of a lock) said
Storage Space against entry by unauthorized person; accordingly, Lessee
hereby hold Lessor harmless with respect to any loss of and/or damage
to any property stored by Lessee in said Storage Space.
9. This Agreement constitutes the entire agreement between the parties
hereto with respect to said Storage Space and supersedes all prior
negotiations, representations, or agreements, either oral or written.
No modification of this Agreement shall be binding unless evidenced by
a written agreement signed by Lessor and Lessee.
LESSOR LESSEE
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Corporation Internet Century, Inc.
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ By /s/ ▇▇▇▇▇▇ ▇▇▇▇
---------------------------------- ----------------------------
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
Property Manager Nevada Operations Officer
Page 2 of 2
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[DIAGRAM OF THE COLONNADE]