EXHIBIT 10.06
LEASE AGREEMENT
between
THE LANDMARK
and
ONSALE, INC.
for
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Dated: May 20, 1996
LANDMARK BUILDING LEASE
1. PARTIES. This Lease dated, for reference purposes only, May 20, 1996, by
and between LANDMARK INVESTMENTS, LIMITED ("Landlord") and ONSALE, INC.
("Tenant"), who agree as follows:
2. PREMISES. Landlord leases to Tenant, and Tenant leases from landlord the
office space located in ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, described as ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, outlined in Exhibit "A" ("Premises"). Premises have an agreed
area of Two Thousand Eight Hundred Eighty Three (2,883) rentable square feet.
3. TERM. The term of this Lease shall be for Three (3) years commencing on
August 1, 1996 and ending on July 31, 1999.
4. RENT AND TENANT IMPROVEMENT COST REIMBURSEMENT.
4.1 Tenant shall pay to Landlord as rent for the Premises, without demand,
deduction, or off-set, the sum of Five Thousand Seven Hundred Sixty Six Dollars
and 00/100 ($5,766.00) on or before the first day of each and every month of the
term of this Lease, the first monthly payment to be made concurrently with the
execution hereof. If the commencement date is not the first day of a month or if
the Lease termination date is not the last day of a month, the rent payable
hereunder shall be prorated, based upon a thirty day month, at the current rate
for the fractional month during which this Lease commences and/or terminates.
Any rent payable for a partial month directly following the commencement date
shall be payable on the first day of the first full calendar month of the term.
Rent shall be paid to Landmark Investments, Limited, at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇.
4.2 In place of an operating expense pass-through, the base rent provided for
in 4.1. above shall increase three percent (3%) per year on the anniversary date
of the commencement of the term of the Lease stated in 3. above.
4.3 Late Charges. Tenant hereby acknowledges that late payment by Tenant to
Landlord of rent 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 upon Landlord by
terms of any mortgage or trust deed covering the Premises. Accordingly, if any
installment of rent or of a sum due from Tenant shall not be received by
Landlord or Landlord's
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designees by 12:00 noon on the fifth (5th) day of each month of the term hereof,
then Tenant shall pay to Landlord a late charge equal to five percent (5%) of
such overdue amount. The parties hereby agree that such late charges represent a
fair and reasonable estimate of the cost that Landlord will incur by reason of
the late payment by Tenant. Acceptance of such late charges by the 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.
5. SECURITY DEPOSIT. On execution of this Lease, Tenant shall deposit with
Landlord $5,766.00 as a security deposit for the performance by Tenant of the
provisions of this Lease. If Tenant is in default, Landlord can use the security
deposit, or any portion of it, to cure the default or to compensate Landlord for
all damage sustained by Landlord resulting from Tenant's default. Tenant shall
immediately on demand pay to Landlord a sum equal to the portion of the security
deposit expended or applied by Landlord as provided in this paragraph so as to
maintain the security deposit in the sum initially deposited with Landlord. If
Tenant is not in default at the expiration or termination of this Lease,
Landlord shall, no later than fourteen (14) days after lease expiration or
termination, return to Tenant (or at Landlord's option, to the last assignee of
Tenant's interest hereunder), the balance of the security deposit. Landlord
shall not be required to keep this security deposit separate from its general
funds, and Tenant shall not be entitled to interest on such deposit.
6. POSSESSION.
6.1. If Landlord, for any reason cannot deliver possession of the Premises to
Tenant at the commencement of the term hereof, this Lease shall not be void or
voidable nor shall Landlord be liable to Tenant for any loss or damage
resulting therefrom, nor shall the expiration date of the above term be
extended, but, in that event, all rent shall be abated during the period
between the commencement of said term and the time when Landlord delivers
possession.
6.2. In the event that Landlord shall permit Tenant to occupy the Premises
prior to the commencement date of the term, such occupancy shall be subject to
all of the provisions of this Lease and said early possession shall not advance
the termination date hereinabove provided. Rent shall be prorated and prepaid
for early occupancy at the current rate.
7. USE.
7.1. Use. The Premises shall be used and occupied by Tenant for general
office purposes and for no other purpose without
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the prior written consent of the Landlord.
7.2 Uses Prohibited.
a. Tenant shall not do or permit anything to be done in or about the Premises
nor bring or keep anything therein which will increase the existing rate or
affect any fire or other insurance upon the building or any of its contents, or
cause a cancellation of any insurance policy covering said building or any part
thereof or any of its contents, nor shall Tenant sell or permit to be kept used
or sold in or about said Premises any articles or substances, inflammable or
otherwise, which may be prohibited by a standard form policy of fire insurance.
b. Tenant shall not do or permit anything to be done in or about the Premises
which will in any way obstruct or interfere with the rights of other tenants of
the building or injure or annoy them or use or allow the Premises to be used for
any unlawful or objectionable purpose.
c. Tenant shall not use the Premises or permit anything to be done in or about
the Premises which will in any way conflict with any law now in force or which
may hereafter be enacted. Tenant shall at its cost promptly comply with all laws
now in force or which may hereafter be in force and with the requirements of any
board of fire underwriters or other similar body relating to Tenant's
improvements or acts.
8. ALTERATIONS AND ADDITIONS. Tenant shall not make or allow any alterations,
additions or improvements of or to the Premises without Landlord's prior written
consent. Any such alterations, additions or improvements, including, but not
limited to, wallcovering, paneling and built-in cabinet work, but excepting
movable furniture and trade fixtures, shall become a party of the realty, shall
belong to the Landlord and shall be surrendered with the Premises at expiration
or termination of the Lease. If Landlord consents to any such alterations,
additions or improvements by Tenant, they shall be made by Tenant at Tenant's
cost, and any contractor or person selected by Tenant to perform the work shall
first be approved of, in writing, by Landlord. Upon expiration, or sooner
termination of the term hereof, Tenant shall, upon written demand by Landlord
promptly remove any alterations, additions or improvements made by Tenant and
designated by Landlord to be removed. Such removal and repair of any damage to
the premises caused by such removal shall be at Tenant's cost.
9. LIENS. Tenant shall keep the Premises and the property in which the
Premises are situated free from any liens arising out of any work performed,
materials furnished or obligations incurred by Tenant. Landlord may require
Tenant
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to provide Landlord, at Tenant's cost, a lien and completion bond in an amount
equal to one and one-half (1-1/2) times the estimated cost of any improvements,
additions, or alterations by Tenant, to insure Landlord against liability for
mechanic's and materialmen's liens and to insure completion for the work.
10. REPAIRS AND MAINTENANCE. By taking possession of the Premises, Tenant
shall be deemed to have accepted the Premises as being in good sanitary order,
condition and repair. Tenant shall at Tenant's cost, keep the premises and every
part thereof in good condition and repair except for damages from causes beyond
the control of Tenant and ordinary wear and tear. Tenant shall upon the
expiration or sooner termination of this Lease surrender the Premises to the
Landlord in good condition, ordinary wear and tear and damage from causes
beyond the reasonable control of the Tenant excepted. Unless specifically
provided in an addendum to this Lease, Landlord shall have no obligation to
alter, remodel, improve, repair, decorate or paint the Premises or any part
thereof and the parties hereto affirm that Landlord has made no
representations to Tenant respecting the condition of the premises or the
building except as specifically herein set forth. Notwithstanding the above
provisions, Landlord shall repair and maintain the structural portions of the
building, including the standard plumbing, air conditioning, heating and
electrical systems furnished by Landlord, unless such maintenance and repairs
are caused in part or in whole by the act, neglect, fault or omission of any
duty by the Tenant, its agents, employees or invitees, in which case Tenant
shall pay to Landlord the reasonable cost of such maintenance and repairs.
Tenant shall give Landlord written notice of any required repairs or
maintenance. Landlord shall not be liable for any failure to repair or to
perform any maintenance unless such failure shall persist for an unreasonable
time after written notice. Any repairs or maintenance to supplemental cooling
equipment required for Tenant's special needs are the responsibility of
Tenant. Except as specifically herein set forth, there shall be no abatement
of rent and no liability of Landlord by reason of any injury to or
interference with Tenant's business arising from the making of any repairs,
alterations or improvements to any portion of the building or the Premises or
to fixtures, appurtenances and equipment therein. Tenant waives the right to
make repairs at Landlord's expense under any law, statute or ordinance now or
hereafter in effect.
11. ASSIGNMENTS AND SUBLETTING. Tenant shall not, voluntarily or by operation
of law, assign, transfer, or encumber its interest under this Lease or in the
Premises nor sublease all or any part of the premises or allow any other person
or entity (except Tenant's employees, agents and invitees) to occupy or use all
or any part of the
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premises without the prior written consent of Landlord. Landlord's consent shall
not be unreasonably withheld. Any such consent shall not release Tenant from
liability hereunder, and a consent to one assignment, subletting, occupation or
use shall not be deemed a consent to any subsequent assignment, subletting,
occupation or use. Any such purported assignment, subletting, or permission to
occupy or use without such consent from Landlord shall be void and shall, at the
option of Landlord, constitute a default under this Lease. Tenant immediately
and irrevocably assigns to Landlord, as security for Tenant's obligations under
this Lease, all rent from any subletting of all or a part of the Premises as
permitted by this Lease, and Landlord, as assignee and as attorney-in-fact for
Tenant, or a receiver for Tenant appointed on Landlord's application, may
collect such rent and apply it toward Tenant's obligations under this Lease;
except that, until the occurrence of an act of default by Tenant, Tenant shall
have the right to collect such rent.
12. HOLD HARMLESS. Except as to claims based on the sole negligence or willful
misconduct of Landlord, its agents or employees, Tenant shall hold Landlord
harmless from any claims arising from Tenant's use of the premises or from any
activity permitted by Tenant in or about the Premises, and any claims arising
from any breach or default in Tenant's performance of any obligation under the
terms of this Lease. If any action or proceeding is brought by reason of any
such claim in which Landlord is named as a party, Tenant shall defend Landlord
therein at Tenant's expense by counsel reasonably satisfactory to Landlord.
Landlord and its agents shall not be liable for any damage to property entrusted
to employees of the building, nor for loss or damage to any property by theft
or otherwise, nor from any injury to or damage to persons or property
resulting from any cause whatsoever, unless caused by or due to the sole
negligence or willful misconduct of Landlord, its agents, or employees.
Landlord shall not be liable for any latent defect in the Premises or in the
building of which they are a part. Tenant shall give prompt notice to Landlord
in case of fire or accidents in the Premises or in the building or of alleged
defects in the building, fixtures or equipment.
13. INSURANCE.
13.1 Coverage. Tenant shall assume the risk of damage to any fixtures,
goods, inventory, merchandise, equipment, furniture and leasehold improvements,
and Landlord shall not be liable for injury to Tenant's business or any loss of
income therefrom relative to such damage. Tenant shall, at all times during the
term of this Lease, and at its own cost, procure and continue in force the
following insurance coverage.
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a. Comprehensive public liability insurance, insuring Landlord and Tenant
against any liability arising out of the ownership, use, occupancy or
maintenance of the Premises and all areas appurtenant thereto.
13.2. Insurance Policies. The limits of said insurance policies shall not,
however, limit the liability of the Tenant hereunder. Tenant may carry said
insurance under a blanket policy, providing, however, said insurance by Tenant
shall name Landlord as an additional insured. If Tenant shall fail to procure
and maintain such insurance, Landlord may, but shall not be required to, procure
and maintain same, but at the expense of Tenant. Insurance required hereunder
shall be in companies that rate B+ or better in "Best's Insurance Guide". Tenant
shall deliver to Landlord prior to occupancy of the premises copies of policies
of insurance required herein or certificates evidencing the existence and
amounts of such insurance with loss payable clauses, satisfactory to Landlord.
No policy shall be cancellable or subject to reduction of coverage except after
fifteen (15) days prior written notice to Landlord. The minimum acceptable
amount of comprehensive liability insurance is $1,000,000 against claims in any
occurrence, and property damage insurance in an amount of not less than $100,000
per occurrence, or combined single limit of $1,000,000 comprehensive liability
and property damage insurance.
13.3. Waiver of Subrogation. As long as their respective insurers so permit,
Landlord and Tenant each hereby waive any and all rights of recovery against the
other for any loss or damage occasioned to such waiving party or its property of
others under its control to the extent that such loss or damage is insured
against under any fire or extended coverage insurance policy which either may
have in force at the time of such loss or damage. Each party shall obtain any
special endorsement, if required by their insurer, to evidence compliance with
the aforementioned waiver.
14. SERVICE AND UTILITIES.
14.1 Landlord's Obligations. Landlord agrees to furnish to the Premises
during reasonable hours of generally recognized business days to be determined
by Landlord, and subject to the Rules and Regulations of the building,
electricity for normal lighting and fractional horsepower office machines, heat
and air conditioning required in Landlord's judgement for the comfortable use
and occupancy of the Premises, janitorial, window washing and elevator service.
Landlord shall also maintain and keep lighted the common stairs, gallerias,
entries and toilet rooms in the building. Landlord shall not be liable for and
Tenant shall not be entitled to any reduction of rental by reason of Landlord's
failure to furnish any of the foregoing when such failure is
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caused by accident, breakage, repairs, strikes, lockouts or other labor
disturbances or labor disputes of any character, or by any other cause, similar
or dissimilar, beyond the reasonable control of Landlord.
14.2 Tenant's Obligation. Tenant shall pay for, prior to delinquency, all
telephone and all other materials and services, not expressly required to be
paid by Landlord, which may be furnished to or used in, on or about the Premises
during the term of this Lease. Tenant will not, without the prior written
consent of Landlord and subject to any conditions which Landlord may impose, use
any apparatus or device in the Premises which will in any way increase the
amount of electricity or water usually furnished for use of the Premises as a
general office space. If Tenant shall require water or electric current in
excess of that usually furnished or supplied for use of the Premises as general
office space, Tenant shall first procure the consent of Landlord. Wherever heat
generating machines or equipment are used in the Premises which affect the
temperature otherwise maintained by the air conditioning system, Landlord
reserves the right to install supplementary air condition units in the Premises
and the cost thereof, including the cost of installation, operation and
maintenance thereof, shall be paid by Tenant to Landlord upon demand by
Landlord. Landlord shall not be liable for Landlord's failure to furnish any of
the foregoing when such failure is caused by any cause beyond the reasonable
control of Landlord. Landlord shall not be liable under any circumstances for
loss of or injury to property, however occurring, in connection with failure to
furnish any of the foregoing.
15. PROPERTY TAXES. Tenant shall pay before delinquency, all personal property
or similar taxes levied or assessed and which become payable during the term
hereof upon all Tenant's equipment, furniture, fixtures and personal property
located in the Premises. Landlord shall pay all property taxes on the land and
building, except should the California Constitution be changed in a way that
results in a higher or lower tax on the Premises than the annual increases now a
matter of law, any such increase or decrease shall be passed through to tenant
on a prorated basis as an item separate from any CPI adjustments. Tenant shall
pay to Landlord its share of such taxes, if any, within thirty days after
delivery to Tenant by Landlord of a statement in writing setting forth the
amount of such taxes.
16. RULES AND REGULATIONS. Tenant shall faithfully observe and comply with the
rules and regulations attached as Exhibit "B" to this Lease, as well as such
rules and regulations that Landlord shall from time to time promulgate. Landlord
reserves the right from time to time to make all reasonable modifications to
those rules which shall be binding to Tenant upon delivery of a copy of them to
Tenant. Landlord shall
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not be responsible to Tenant for the nonperformance of any of said rules by
any other tenant.
17. HOLDING OVER. If Tenant remains in possession without Landlord's
consent, after termination of the Lease, by lapse of time or otherwise, Tenant
shall pay Landlord for each day of such retention one-fifteenth (1/15th) of the
amount of the monthly rental for the last month prior to such termination and
Tenant shall also pay all costs, expenses and damages sustained by Landlord by
reason of such including without limitation, claims made by a succeeding
tenant resulting from Tenant's failure to surrender the Premises.
18. ENTRY BY LANDLORD. Landlord reserves the right to enter the premises
at any time to inspect the Premises, to provide any service for which Landlord
is obligated hereunder, to submit the Premises to prospective purchasers or
tenants, to post notices of nonresponsibility, and to alter, improve, maintain
or repair the Premises or any portion of the building of which the Premises
are a part that Landlord deems necessary or desirable, all without abatement
of rent. Landlord may erect scaffolding and other necessary structures
where reasonably required by the character of the work to be performed, but
shall not block entrance to the Premises and not interfere with Tenant's
business, except as reasonably required for the particular activity by
Landlord shall not be liable in any manner for any inconvenience, disturbance,
loss of business, nuisance, interference with quiet enjoyment, or other damage
arising out of Landlord's entry on the Premises as provided on this paragraph,
except damage, if any, resulting from the negligence or willful misconduct of
Landlord or its authorized representative. Landlord shall retain a key with
which to unlock all doors into, within and about the Premises, excluding
Tenant's vaults, safes and files. In an emergency, Landlord shall have the
right to use any means which Landlord deems reasonably necessary to obtain
entry to the Premises, without liability to Tenant, except for any failure to
exercise due care for Tenant's property. Any such entry to the Premises by
Landlord shall not be construed or deemed to be forcible or unlawful entry
into or a detainer of the Premises or an eviction of Tenant from the Premises
or any portion thereof.
19. RECONSTRUCTION. If the Premises or the building of which the Premises
are a part are damaged by fire or other peril covered by extended coverage
insurance, Landlord agrees to make repairs and restorations to the extent and
in the manner possible at a cost not exceeding the proceeds of the insurance
received by Landlord. If the cost of repair and restoration exceeds the
amount of proceeds received from insurance, Landlord may elect to terminate
this Lease by giving notice to Tenant within twenty (20) days after determining
that the cost will exceed such proceeds. If Landlord proceeds with repair and
restoration, this
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Lease shall remain in full force and effect, except that Tenant shall be
entitled to a proportionate reduction of rent while such repairs are being
made. The rent reduction shall be based upon the extent to which repair and
restoration activity materially interferes with Tenant's business at the
Premises, provided, however, that if the damage was occasioned by the fault or
neglect of Tenant, its agents or employees, there shall not be an abatement of
rent.
20. DEFAULTS; REMEDIES.
20.1 Default. The occurrence of any of the following shall constitute a
default by Tenant.
a. Failure by Tenant to pay the rent or other monies when due, where such
failure continues for three (3) business days after written notice by Landlord
to Tenant.
b. Abandonment of the Premises by Tenant.
c. Failure by Tenant to perform any other provision of this Lease where
such failure to perform is not cured within thirty (30) days after notice has
been given to Tenant; provided, however, that if the nature of the default is
such that the same cannot reasonably be cured within said thirty (30) day
period, Tenant shall not be deemed to be in default if Tenant shall within
such period commence such cure and thereafter diligently prosecute the same to
completion.
d. The making by Tenant of any general assignment or general arrangement
for the benefit of creditors; the filing by or against Tenant of a petition to
have Tenant adjudged a bankrupt or of a petition for reorganization or
arrangement under any law relating to bankruptcy (unless, in the case of a
petition filed against Tenant, same is dismissed within sixty (60) days; 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
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 without thirty (30) days.
20.2 Remedies. In the event of any such default Landlord may:
Maintain this Lease in full force and effect and recover the rent and other
monetary charges as they become due, without terminating Tenant's right to
possession irrespective of whether Tenant shall have abandoned the Premises, In
the event Landlord elects not to terminate the Lease, Landlord shall have the
right to attempt to re-let the Premises at
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such rent and upon such conditions and for such a term, and to do all acts
necessary to maintain or preserve the Premises as Landlord deems reasonable
and necessary without being deemed to have elected to terminate the Lease,
including removal of all persons and property from the Premises. Such property
may be removed and stored in a public warehouse or elsewhere a the cost of and
for the account of Tenant. In the event any such reletting occurs, this Lease
shall terminate automatically upon the new tenant taking possession of the
Premises. Notwithstanding that Landlord fails to elect to terminate the Lease
initially, Landlord at any time during the term of this Lease nay elect to
terminate this Lease by virtue off such previous default of Tenant.
Terminate Tenant's right to possession by any lawful means, in which case this
Lease 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 without limitation thereto, the following: (1) the worth at the time
of award of any such termination; plus (2) the worth at the time of award of
the amount by which the unpaid rent which would have been earned after
termination until the time of award exceeds the amount of such rental loss
that is proved could have been reasonably avoided; plus (3) the worth at the
time of award of the amount by which unpaid rent for the balance of the term
after the time of award exceeds the amount of such rental loss that is proved
could be reasonably avoided; plus (4) any other amount necessary to compensate
Landlord for all the detriment proximately caused by Tenant's failure to perform
his obligations under this Lease or which in the ordinary course of events
would be likely to result therefrom; plus (5) at Landlord's election, such
other amounts in addition to or in lieu of the foregoing as may be permitted
from time to time by applicable law. Upon any such re-entry Landlord shall
have the right to make any reasonable repairs, alterations or modifications to
the Premises, which Landlord in its sole discretion deems reasonable and
necessary. As used in (1) above, the "worth at the time of award" is computed
by allowing interest at the rate of ten percent (10%) per annum from the date
of default. As used in (2) and (3) above, the "worth at the time of award" is
computed by discounting such amount at the discount rate of the U.S. Federal
Reserve Bank at the time of the award plus one percent (1%).
Remedies of Landlord contained in this Lease shall be construed and held to be
cumulative, and Landlord shall have the right to pursue any one or all of such
remedies or any other remedy or relief which may be provided by law. No
waiver of any default of Tenant hereunder shall be implied from any acceptance
by Landlord of any rent or other payments due hereunder or any omission by
Landlord to take any action
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on account of such default is such default persists or is repeated, and no
express waiver shall affect defaults other than as specified in said waiver.
The consent or approval of Landlord to or of any act by Tenant requiring
Landlord's consent or approval shall not be deemed to waive or render
unnecessary Landlord's consent or approval to or of any subsequent similar
acts by Tenant.
21. EMINENT DOMAIN. If more than twenty-five percent (25%) of the
Premises is taken or appointed by any public or quasi-public authority under
powers of eminent domain, either party hereto shall have the right at its
option, to terminate this Lease. If less than twenty-five percent (25%) of the
Premises is taken (or neither party elects to terminate as above, provided if
more than twenty-five percent (25%) is taken), the Lease shall continue, but
the rental thereater to be paid shall be equitably reduced. If any part of the
building of which the Premises are a part is so taken or appropriated, whether
or not any part of the Premises is involved, Landlord shall be entitled to the
entire award and compensation for the taking which is paid or made by the
public or quasi-public agency, and Tenant shall have no claim against said
award.
22. STATEMENT TO LENDER. Tenant shall at any time and from time to
time, upon not less than ten (10) days prior written notice from Landlord,
execute, acknowledge, and deliver to Landlord a statement in writing, (a)
certifying that this Lease is unmodified and in full force and effect (or, if
modified, stating the nature of such modifications and certifying that this
Lease as so modified, is in full force and effect), and the date to which the
rental and other charges are paid in advance, if any, and (b) acknowledging that
there are not, to Tenant's knowledge, any uncured defaults on the part of the
Landlord hereunder, or specifying such defaults if any are claimed. Any such
statement may be relied upon by any prospective purchaser or emcumbrancer of
all or any portion of the real property of which the Premises are a part.
23. PARKING. Tenant shall have the right to use, in common with other
tenants or occupants of the building, parking facilities, provided by Landlord
for tenants of The Landmark, subject to the rules and regulations established
by Landlord. Said parking shall be at no expense to the Tenant unless a tax,
fee or levy is imposed directly or indirectly by a Federal, State or local
agency or jurisdiction for parking. If such a tax, fee or levy is imposed
tenant agrees to pay its portion of said fee as reasonably determined by the
Landlord.
24. AUTHORITY OF PARTIES.
24.1 Corporate Authority. If Tenant is a corporation, each
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individual executing this Lease on behalf of said corporation represents and
warrants that he is duly authorized to execute and deliver this Lease on
behalf of said corporation, in accordance with a duly adopted resolution of
the Board of Directors of said corporation or in accordance with the bylaws of
said corporation, and that this Lease is binding upon said corporation in
accordance with its terms.
24.2 Limited Partnerships. Landlord herein is a limited partnership. It is
understood and agreed that any claims by Tenant on Landlord shall be limited to
the assets of the limited partnership. And furthermore, Tenant expressly waives
any and all rights to proceed against the individual partners or the officers,
directors or shareholders of any corporate partner, except to the extent of
their interest in said limited partnership.
25. GENERAL PROVISIONS.
25.1 Exhibits. Exhibits attached hereto, and addendums initialed by the
parties, are deemed to constitute a part hereof.
25.2 Waiver. The waiver by Landlord of any provision of this Lease shall not
be deemed to be a waiver of any subsequent breach of the same or any other
provisions of this Lease herein contained. The subsequent acceptance of rent
hereunder by Landlord shall not be deemed to be a waiver of any preceding breach
by Tenant of any provision of this Lease, other than the failure of the Tenant
to pay the particular rental so accepted, regardless of Landlord's knowledge of
such preceding breach at the time of the acceptance of such rent.
25.3 Notices. All notices and demands which may or are required to be given by
either party to the other hereunder shall be in writing. All notices and
demands by the Landlord to the Tenant shall be sufficient if delivered in person
or sent by first class mail, postage prepaid, addressed to the Tenant at the
Premises or to such other place as Tenant may from time to time designate in a
written notice to the Landlord. All written notices and demands by the Tenant
to the Landlord shall be sufficient if delivered in person or sent by first
class mail, postage prepaid, addressed to the Landlord at the office of the
building or to such other person or place as the Landlord may from time to time
designate in a notice to the Tenant. Any such notice is effective at the time
of delivery or 48 hours after mailing.
25.4 Rentable Area. Rentable square footage, as herein used, is the actual
square footage of the office suite plus a load factor for gallerias, restrooms,
hallways and other common areas. The stated rentable area will not be used as a
basis for either party making any claim against the other.
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25.5 Joint and Several Obligations. If there be more than one Tenant, the
obligations hereunder imposed upon tenants shall be joint and several.
25.6 Captions. The captions of the paragraphs of this Lease are not a part of
this Lease and shall have no effect upon the construction or interpretation of
any part hereof.
25.7 Time. Time is of the essence hereof.
25.8 Successors and Assigns. The provisions of this Lease, subject to the
provisions as to assignment, apply to and bind the successors and assigns of the
parties hereto.
25.9 Recording. Neither Landlord nor Tenant shall record this Lease or a
short form memorandum hereof without the prior written consent of the other
party.
25.10 Scope and Amendments. This Lease is and shall be considered to be the
only agreement between the parties hereto. All negotiations and oral agreements
acceptable to both parties are included herein. No amendment or other
modification of this Lease shall be effective unless in a writing signed by
Landlord and by Tenant.
25.11 Legal Fees. In the event of any action brought by either party against
the other under this Lease, the prevailing party shall be entitled to recover
all costs including the fees of its attorneys as the court may adjudge
reasonable.
25.12 Sale. In the event of any sale of the building, Landlord shall be
released of any liability under this Lease, and the purchaser of the Premises
shall be deemed to have assumed and agreed to carry out all of the obligations
of the Landlord under this Lease.
25.13 Lender Requirements. Upon request of the Landlord, Tenant will, in
writing, subordinate its rights hereunder to the lien of any mortgagee, or deed
of trust to any bank, insurance company or other lending institution, now or
hereafter in force against the land and building of which the Premises are a
part, and to all advances made or hereafter to be made upon the security
thereof. If any proceedings are brought for foreclosure, or in the event of the
exercise of the power of sale under any mortgage or deed of trust made by the
Landlord covering the Premises, the Tenant shall recognize such purchaser as the
Landlord under this Lease.
25.14 Name. Tenant shall not use the name of the development in which the
Premises are situated for any purpose other than as an address of the business
to be conducted by the Tenant in the Premises, unless written
13
authorization is obtained from Landlord.
25.15 Severability. Any provision of this Lease which shall prove to be
invalid, void or illegal shall in no way affect, impair or invalidate any other
provision hereof.
25.16 Applicable Law. This Lease shall be governed by the laws of the State of
California.
25.17 Toxics. Landlord and Tenant acknowledge that they have been advised that
numerous federal, state, and/or local laws, ordinances and regulations ("law")
affect the existence and removal, storage, disposal, leakage of contamination by
materials designated as hazardous or toxic ("Toxics"). Many materials, some
utilized in everyday business activities and property maintenance, are
designated as hazardous or toxic. Some of the Laws require that Toxics be
removed or cleaned up without regard to whether the party required to pay for
the "clean up" caused the contamination, owned the property at the time the
contamination occurred or even knew about the contamination. Some items, such
as asbestos or PCB's, which were legal when installed, now are classified as
Toxics, and are subject to removal requirements. Civil lawsuits for damages
resulting from Toxics may be filed by third parties in certain circumstances.
Tenant and Landlord agree to hold the other harmless from any responsibility for
any Toxics which are brought on to the Premises or the project by themselves,
their agents, employees or contractors.
26. ELECTRICAL, COMMUNICATIONS AND ALARM WIRING.
26.1 Tenant shall contact the Landlord prior to installing or relocating any
electrical, telephone, network, LAN, intercom, doorbell, or alarm wiring systems
at the Landmark Office Center.
26.2 All electrical wiring shall be installed by a licensed contractor in
expanded metal tubing in accordance with the most current electrical code, etc.
26.3 All communication cabling shall be installed by a licensed contractor and
shall be plenum rated and shall not be installed as to "lay" on ceiling tile or
t-bar grid systems.
A certificate of compliance shall be provided by contractor to Landlord at time
of completion.
26.4 Landlord shall not be financially responsible for any repair or
replacement of any communication cables, telephone lines, telephone feeders, or
trunk lines beyond the M.P.O. (minimum point of entry) established by Pacific
▇▇▇▇. If one or more of these lines serve several tenants, the cost of
installation and repair shall be divided among tenants currently being served by
said cable.
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26.5 Not all existing telephone rooms/punchdown boards are permanent. Tenant
and his contractor must verify location of termination points with the Landlord
prior to installation.
26.6 No audible alarm systems will be permitted. Landlord will not assume any
financial responsibility for any alarms attributable to its employees,
contractors, including janitors, guards, or service personnel.
26.7 Any work requiring access to adjoining tenant spaces shall be prearranged
so that Landlord can obtain permission for the intrusion/interruption of the
space. Tenant shall reasonably cooperate in arranging access to contractors for
adjoining tenant when requested by Landlord.
26.8 Upon request of Landlord, Tenant shall remove all communication cable that
Tenant has installed in the Premises upon expiration of this Lease and repair
all damage caused by said removal.
27. AMERICANS WITH DISABILITIES ACT. Landlord believes the Premises complies
with the "Americans With Disabilities Act" (ADA), but no independent
investigation has been made to ensure compliance with the "Americans With
Disabilities Act" (ADA). This Act may require a variety of changes to a
facility, including potential removal of barriers to access by disabled persons
and provision of auxiliary aids and services for hearing, vision or speech
impaired persons, some of which would be the Landlord's responsibility and some
would be the Tenant's responsibility. Landlord urges all parties to obtain
independent legal and technical advice with respect to the physical and
environmental conditions and ADA compliance of the Property. The Parties agree
that it will rely solely on their own investigations and/or that of a licensed
professional specializing in these areas, and not on the investigation,
assurances or opinion of Landlord or Broker, if any.
28. BROKERS. Tenant warrants that it has had no dealing with any real estate
broker or agent in connection with the negotiation of this Lease excepting only
of, and it knows of no other real estate broker or agent who is entitled to a
commission in connection with this Lease. Commissions shall be paid to
Broker(s) on the following schedule: 6%, 5%, 4%, 3%, 2%. No commissions shall
be paid on Tenant Improvement Amortizations, CPI Increases or any other rent
adjustment covered in section 4.2 herein.
29. TENANT IMPROVEMENTS. Landlord shall clean the carpets and touch-up paint
throughout the Premises.
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The parties hereto have executed this Lease on the dates specified immediately
adjacent to their respective signatures.
LANDLORD: LANDMARK INVESTMENTS, LIMITED
By: THRUST IV, INC., General Partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇ Date: November 14, 1994
___________________________ ______________________
▇▇▇▇ ▇. ▇▇▇▇▇, President
TENANT: ONSALE, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇ Date: May 30, 1996
___________________________ ______________________
(SIGNATURE)
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ CFO Tax ID# ▇▇-▇▇▇▇▇▇▇
___________________________ ____________________
(PRINT NAME) (TITLE)
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EXHIBIT A
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[MAP OF BUILDING DESIGNATIONS]
EXHIBIT A
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Rules and Regulations
---------------------
1. Keys are issued, in a reasonable number, by Landlord to Tenant at no
charge.
2. Access cards, used to open the electronic lock of the front entry door
of a particular building after normal business hours, are assigned to
individual people pursuant to business hours, are assigned to individual
people pursuant to a list submitted by Tenant to Landlord. A $15.00 deposit
per card is charged upon issuance and refundable upon return. When a card
▇▇▇▇▇ is no longer entitled to a card (left employment, etc.) Tenant shall
notify Landlord of a new holder, or if the card has been taken or lost.
By so notifying Landlord, a particular card code can be removed from the
authorized list, so that it no longer will activate the lock.
3. No sign or notice shall be displayed by Tenant outside of its office
space without written consent of Landlord which may be unreasonably withheld.
If approval is not given, Landlord shall have the right to remove such sign or
notice without notice to and at expense of the Tenant. All signs on access
doors to the Premises shall be approved by Landlord. The original standard
company sign on the main door to the Premises will be installed at Landlord's
expense. Tenant may, at its expense, install a different sign, after written
design approval by Landlord. Design criteria should be obtained from Landlord
in advance.
Tenant shall not place anything within the Premises which may appear unsightly
from outside of the Premises.
Tenant shall not install any curtains, blinds, shades, or screens on any
windows or doors of the Premises without Landlord's consent which may be
unreasonably withheld.
4. Sidewalks, halls, passages, exits, entrances, elevators, and stairways
shall not be obstructed by any of the tenants, or used by them for any purpose
other than for ingress or egress from their respected offices.
5. Tenant shall not alter any lock or install any new or additional locks
or bolts on any doors or windows without the written consent of Landlord. All
such alterations shall be done by Landlord's agents at Tenant cost.
6. The toilet rooms, urinals, wash bowls and other apparatus shall not be
used for any purpose other than for which they were installed.
7. Tenant shall not overload the floor of the office
complex. Tenant shall not ▇▇▇▇, drive nails, screw or drill into the
partitions, woodwork, or plaster or in any way deface the Premises, except for
hanging of small items such as pictures with nail type of hangers, without
Landlord's approval. If Tenant hangs any other furniture, equipment,
whiteboards etc. Tenant shall be responsible for the removal and repair of all
damages to the Premises.
8. No unusually large or heavy equipment shall be brought into the complex
without prior notice to Landlord and all moving of the same into or out of the
office complex shall be done at such time and such a manner as Landlord shall
designate.
All damage done to the office complex by moving or maintaining any such
equipment shall be repaired at the expense of Tenant.
9. Tenant shall not use the office complex in a manner offensive or
objectionable to the Landlord or other occupants by reason of noise, odors,
and/or vibrations, or interfere in any way with other tenants or those having
business herein, nor shall any animals or birds be brought in or about the
office complex.
10. No lodging, washing clothes, cooking, excluding use of coffee makers and
microwave ovens, shall be done or permitted by any Tenant on the Premises.
11. Tenant shall not use or keep on the Premises any foul or noxious gas,
kerosene, gasoline or inflammable or combustible fluid or material, or use any
method of heating or air conditioning other than that supplied by Landlord.
12. Landlord shall direct electricians as to where and how telephone wires are
to be installed. No changing of wires will be allowed without the consent of
the Landlord which may be unreasonably withheld. The location of the
telephones, call boxes and other office equipment affixed to the office complex
shall be subject to the approval of Landlord.
13. No aerial satellite dish or other item shall be erected on the roof or
exterior walls of the complex, or on the grounds, without in each instance, the
written consent of the Landlord which may be unreasonably withheld. Any such
item so installed without such written consent shall be subject to removal
without notice at any time.
14. No loud speakers, televisions, radios or other devices shall be used in a
manner so as to be heard or seen outside of the Premises without prior written
consent of the Landlord.
15. On Saturdays, Sundays, legal holidays, and on other days between the hours
of 5:00 P.M. and 8:00 A.M. The following
day, access to the office complex, or to the Premises may be refused unless
the person seeking entry is known to the person or employee of the office
complex in charge or is properly identified. The Landlord shall in no case be
liable for damages for any error with regard to the admission to or exclusion
from the office complex of any person.
16. Any person whose presence on the Premises may in the judgment of the
Landlord be prejudicial to the safety, character, reputation and interest of the
office complex or of its tenants may be denied access to the office complex or
may be ejected therefrom.
17. No vending machine or machines of any description shall be installed,
maintained or operated upon the Premises without the written consent of the
Landlord.
18. Tenant shall not disturb, solicit, or canvass any occupant of the office
complex and shall cooperate to prevent the same.
19. Landlord shall control and operate the public portions of the office
complex, in such manner as it deems best for the benefit of the tenants
generally.
20. All windows and entrance doors in the office complex shall be left locked
when the Premises are not in use, and all doors opening to public corridors
shall be kept closed except for normal ingress and egress from the office
complex.
21. In case of invasions, mob riot, public excitement, or other emergency, the
Landlord reserves the right to prevent access to the office complex during the
continuance of the same by closing of the doors or otherwise, for the safety of
the tenants and protection of property in the office complex. Landlord will also
direct tenants as necessary in an emergency and will not assume any liability
for damages suffered by tenants as the result of such directions.