EXHIBIT 10.14
March 28, 2000
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Assistant Property Manager
Seagate Properties, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
VIA FACSIMILE ▇▇▇-▇▇▇-▇▇▇▇, AND OVERNIGHT DELIVERY
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RE: Lease Agreement: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇
Dear ▇▇▇▇▇:
Thank you again for your professional courtesy and your prompt attention to my
questions. Working with you is a pleasure.
As we have discussed, Personify is sending to you a check for $32,200.00. This
amount covers our lease payments for April and May 2000, for the property at ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇. This satisfies our payment obligations for the
remainder of the term, through the end of May 2000. In depositing this check,
you agree that Personify shall occupy this space through May 31, 2000.
As we have agreed, Personify may elect to occupy this space beyond May 31, 2000,
by agreeing to a month-to-month tenancy under the same terms and conditions as
the current lease agreement. In that event, we would extend the current lease
agreement on a monthly basis.
You requested our current insurance certificate, which I am also sending to you.
If you need BTW III listed as "additional insured", I will be happy to have that
done promptly.
If this letter comports with your understanding of our discussions, please
acknowledge your agreement by signing below and returning to me via facsimile.
Thank you again for your assistance. Please contact me if I may provide any
further information.
Best regards,
▇▇▇▇▇ ▇▇▇▇▇▇
AGREED TO BY: Signature ________________________
Name _____________________________
Title ____________________________
Company __________________________
Date _____________________________
MONTH TO MONTH RENTAL AGREEMENT
THIS MONTH TO MONTH RENTAL AGREEMENT (hereinafter, the "Agreement") is
entered into this 28th day of February, 2000 between BTW III INC., A DELAWARE
CORPORATION, ("Lessor"), and PERSONIFY, INC. ("Lessee"), for approximately 6900
rentable square feet of space designated as Suite 450 (the "Short Term
Premises"), as more fully described in Exhibit A attached and incorporated
herein by this reference. It is specifically understood that Lessee is
responsible for the care, maintenance and repair any damage to the Short Term
Premises caused by Lessee of the Short Term Premises. This Agreement shall
commence and be effective on MARCH 1, 2000, and shall continue on a month to
month basis for a maximum of three (3) months. The rental of this space, which
is based on the above square footage, is made in consideration of Sixteen
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Thousand One Hundred ($16,100) Dollars per month, payable one month in advance.
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Thereafter, all rental payments shall be payable in advance on the first day of
each month. If any installment of rent or other sums due from Lessee is not
received by Lessor when due, Lessee shall pay to Lessor an additional sum equal
to five percent (5%) plus interest, of the amount due as a late charge. Lessee
will deposit with Lessor the sum of Seventeen Thousand ($17,000) Dollars as a
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Security Deposit. If Lessee is not in default or has not damaged the Short Term
Premises at the termination of this Agreement, Lessor shall, as soon as is
practicable after the termination of this Agreement, return the deposit to
Lessee, less such amounts as are reasonably necessary to remedy Lessee's
defaults. The Short Term Premises shall be used for general office and
administrative use and for no other purpose without Lessor's prior written
consent.
EXCESS UTILITIES AND SERVICES. Lessee shall pay for all telephone, alarm,
security and other services not typically provided in Landlord's normal full
service office lease; and for all services that are over and above those
furnished to the Premises during the period from 7AM to 6PM ("Business Hours")
Monday through Friday (except public holidays) ("Business Days").
INSURANCE. Lessee shall maintain comprehensive general liability insurance
against liability for: (1) bodily injury in an amount not less than $2 million
per occurrence, and (2) property damage in an amount not less than $2 million
per occurrence. All insurance shall be with companies licensed to do business
with the Insurance Commissioner of the State of California. A certificate of
all such insurance shall be delivered to the Lessor prior to occupancy and shall
certify that the policy: (1) names Lessor as an additional insured, and (2)
shall not be cancelled or altered without thirty (30) days' prior written notice
to Lessor.
ATTORNEY'S FEES. If Lessor sues Lessee due to the default of Lessee, Lessor
shall be entitled to full reimbursement of its reasonable attorney's fees.
INSPECTION. Lessor shall have the right to any and all reasonable times to
enter and inspect the Short Term Premises.
MODIFICATION. Lessee shall have no rights under this Agreement to alter or
modify the Short Term Premises without Landlord's prior written consent. Lessee
agrees to abide by the Rules and Regulations which are attached and incorporated
herein by this reference. Lessee shall not keep or
store on the Short Term Premises chemicals in quantities, amounts,
concentrations or type which are in excess of those permitted by local, state or
federal laws, regulations or ordinances.
HAZARDOUS MATERIALS. Subject to the remaining provision so this paragraph,
Lessee shall be entitled to use and store only those Hazardous Materials
(defined below), that are necessary for Lessee's business, provided that such
usage and storage is in full compliance with all applicable local, state and
federal statutes, orders, ordinances, rules and regulations (as interpreted by
judicial and administrative decisions). Lessor shall have the right at all
times during the term of this Agreement to (i) inspect the Short Term Premises,
(ii) conduct tests and investigations to determine whether Lessee is in
compliance with the provisions of this paragraph, and (iii) request lists of all
Hazardous Materials used, stored or located on the Short Term Premises; the cost
of all such inspections, test and investigations to be borne by Lessee, if
Lessor reasonably believes they are necessary. Lessee shall give to Lessor
immediate verbal and follow-up written notice of any spills, releases or
discharges of Hazardous Materials on the Short Term Premises, or in any common
areas or parking lots (if not considered part of the Short Term Premises),
caused by the acts or omissions of Lessee, or its agents, employees,
representatives, invitees, licensees, subtenants, customers or contractors.
Lessee covenants to investigate, clean up and otherwise remediate any spill,
release or discharge of Hazardous Materials caused by the acts or omissions of
Lessee, or its agents, employees, representatives, invitees, licensees,
subtenants, customers or contractors at Lessee's cost and expense; such
investigation, clean up and remediation to be performed after Lessee has
obtained Lessor's written consent. Lessee shall indemnify, defend and hold
Lessor harmless from and against any and all claims, judgments, damages,
penalties, fines, liabilities, losses, suits, administrative proceedings and
costs (including, but not limited to, attorneys' and consultant fees) arising
from or related to the use, presence, transportation storage, disposal, spill,
release or discharge of Hazardous Materials on or about the Premises caused by
the acts or omissions of Lessee, its agents, employees, representatives,
invitees, licensees, subtenants, customers or contractors. Lessee shall not be
entitled to install any tanks under, on or about the Short Term Premises for the
storage of Hazardous Materials without the express written consent of Lessor,
which may be given or withheld in Lessor's sole discretion. As used herein, the
term Hazardous Materials shall mean (i) any hazardous or toxic wastes, materials
or substances, and other pollutants or contaminants, which are or become
regulated by all applicable local, state and federal laws; (ii) petroleum; (iii)
asbestos; (iv) polychlorinated biphenyls; and (v) radioactive materials. The
provisions of this paragraph shall survive the termination of this Agreement.
Personify has not, and does not, use and/or store Hazardous Materials at this
site.
COMMUNICATIONS AND COMPUTER LINES. Tenant may, in a manner consistent with the
provisions and requirements of this Lease, install, maintain, replace, remove or
use any communications or computer wires, cables and related devices
(collectively the "Lines") at the Building in or serving the Short Term
Premises, provided: (a) Tenant shall obtain Landlord's prior written consent,
which consent may be conditioned as required by Landlord, (b) if Tenant at any
time uses any equipment that may create an electromagnetic field exceeding the
normal insulation ratings of ordinary twisted pair riser cable or cause
radiation higher than normal background radiation, the Lines therefor (including
riser cables) shall be appropriately insulated to prevent such excessive
electromagnetic fields or radiation, and (c) Tenant shall pay all costs in
connection therewith. Landlord reserves the right to require that Tenant remove
any Lines which are installed in violation of these provisions.
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NEW LINES. Landlord may (but shall not have the obligation to): (a) install
new Lines at the Property, and (b) create additional space for Lines at the
Property, and adopt reasonable and uniform rules and regulations with respect to
the Lines.
LINE PROBLEMS. Notwithstanding anything to the contrary contained in this
Lease, Landlord reserves the right to require that Tenant remove any or all
Lines installed by or for Tenant within or serving the Short Term Premises.
Tenant shall not, without the prior written consent of Landlord in each
instance, grant to any third party a security interest or lien in or on the
Lines, and any such security interest or lien granted without Landlord's written
consent shall be null and void. Except to the extent arising from the
intentional or negligent acts of Landlord or Landlord's agents or employees,
Landlord shall have no liability for damages arising from, and Landlord does not
warrant that Tenant's use of any Lines will be free from the following,
(collectively called "Line Problems"): (a) any eavesdropping or wire-tapping by
unauthorized parties, (b) any failure of any Lines to satisfy Tenant's
requirements, or (c) any shortages, failures, variations, interruptions,
disconnections, loss or damage caused by the installation, maintenance,
replacement, use or removal of Lines by or for other tenants or occupants at the
Property. Under no circumstances shall any Line Problems be deemed an actual or
constructive eviction of Tenant, render Landlord liable to Tenant for abatement
of Rent, or relieve Tenant from performance of Tenant's obligations under this
Lease. Landlord in no event shall be liable for damages by reason of loss of
profits, business interruption or other consequential damage arising from any
Line Problems.
INDEMNIFICATION OF LANDLORD. Lessee shall save and hold Lessor harmless and
indemnify Lessor against all liabilities, charges, expenses (including
reasonable attorney's fees, costs of court and expenses necessary in the
prosecution or defense of any litigation) by reason of injury to person or
property, from whatever cause, while in or on the leased Premises, or in any way
connected with the leased Premises with the improvements or personal property
therein, including any liability for injury to person or property of Lessee, his
agents and agents and employees or third persons.
ASSIGNMENT AND SUBLETTING. Lessee shall not assign or transfer this Agreement
nor sublet all or any portion of the Short Term Premises without the prior
written consent of Lessor, which consent may be withheld at Landlord's sole and
absolute discretion.
EARLY TERMINATION. Lessor may, at any time, exercise its right to terminate
this agreement by giving the Lessee thirty (30) days written notice to the
Premises defined herein.
HOLDOVER. If Lessee holds possession of the Short Term Premises after the
expiration or termination of this Agreement, by lapse of time or otherwise,
Lessee shall become a tenant at sufferance, except as to the Lease Term and
Rent. During such holdover period Lessee shall pay to Lessor a monthly rental
equivalent to two hundred percent (200%) of the rent payable by Lessee to Lessor
with respect to the last month of the term of this Agreement.
Lessor and Lessee hereby waive any rights each may have against the other on
account of any loss or damage occasioned to the Lessor or the Lessee or to Short
Term Premises or its contents which may arise from any risk generally covered by
fire and extended coverage insurance in forms approved for use in California.
The parties shall obtain from their respective insurance companies insuring the
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Short Term Premises and/or its contents a waiver of any right of subrogation
which such insurance company may have against the Lessor or the Lessee.
Upon vacating the Short Term Premises, Lessee hereby agrees to return same in
good repair and condition acceptable to Lessor's designated representative.
IN WITNESS WHEREOF, this Agreement is executed on the date and year first
above written by and between BTW III INC., A DELAWARE corporation and PERSONIFY,
INC.
LESSOR LESSEE
BTW III INC., A DELAWARE CORPORATION PERSONIFY, INC.
By:_________________________________ By:________________________________
Name:_______________________________ Name:______________________________
Title:______________________________ Title:_____________________________
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EXHIBIT A
FLOOR PLAN OF PREMISES
EXHIBIT B
RULES AND REGULATIONS
1. The sidewalks, entrances, passages, courts, elevators, vestibules,
stairways, corridors or halls shall not be obstructed or used for any purpose
other than ingress and egress. The halls, passages, entrances, elevators,
stairways, balconies and roof are not for the use of the general public, and
Landlord shall in all cases retain the right to control or prevent access
thereto by all persons whose presence in the judgment of Landlord shall be
prejudicial to the safety, character, reputation or interests of Landlord and
its tenants, provided that nothing herein contained shall be to prevent such use
by persons with whom the tenant normally deals in the ordinary course of its
business unless such persons are engaged in illegal activities. No tenant and no
employees of any tenant shall go upon the roof of the Building without the
written consent of Landlord.
2. No awnings or other projections shall be attached to the outside walls or
surfaces of the Building nor shall the interior or exterior of any windows be
coated without the prior written consent of Landlord. Except as otherwise
specifically approved by Landlord, all electrical ceiling fixtures hung in
offices or spaces within the Building must be fluorescent and of quality, type,
design and bulb color approved by Landlord. Tenant shall not place anything or
allow anything to be placed near the glass of any window, door, partition or
wall which may appear unsightly from outside the Premises.
3. No sign, picture, plaque, advertisement, notice or other material shall be
exhibited, painted, inscribed or affixed by any tenant or any part of, or so as
to be seen from the outside of, the Premises or the Building without the prior
written consent of Landlord. In the event of the violation of the foregoing by
any tenant, Landlord may remove the same without any liability, and may charge
the expense incurred in such removal to the tenant violating this rule.
Interior signs on doors and the directory tablet shall be inscribed, painted or
affixed for each tenant by Landlord at the expense of such tenant, and shall be
of a size, color and style acceptable to Landlord.
4. The toilets and wash basins and other plumbing fixtures shall not be used
for any purpose other than those for which they were constructed, and no
sweepings, rubbish, rags or other substances shall be thrown therein. All damage
resulting from any misuse of the fixtures shall be borne by the tenant who, or
whose servants, employees, agents, visitors or licensees, shall have caused the
same.
5. No tenant or its officers, agents, employees or invitees shall ▇▇▇▇, paint,
drill into, or in any way deface any part of the Premises or the Building. No
boring, cutting or stringing of wires or laying of linoleum or other similar
floor coverings shall be permitted except with the prior written consent of
Landlord and as Landlord may direct.
6. No bicycles, vehicles or animals of any kind shall be brought into or kept
in or about the Premises and no cooking shall be done or permitted by any tenant
on the Premises except that microwave cooking in a UL-approved microwave oven
and the preparation of coffee, tea, hot
chocolate and similar items for the tenant and its employees and business
visitors shall be permitted. Tenant shall not cause or permit any unusual or
objectionable odors to escape from the Premises.
7. The Premises shall not be used for manufacturing or for the storage of
merchandise except as such storage may be incidental to the use of the Premises
for general office purposes. No tenant shall engage or pay any employees on the
Premises except those actually working for such tenant on the Premises nor
advertise for laborers giving an address at the Premises. The Premises shall
not be used for lodging or sleeping or for any immoral or illegal Purposes.
8. No tenant or its officers, agents, employees or invitees shall make, or
permit to be made any unseemly or disturbing noises, sounds or vibrations or
disturb or interfere with occupants of this or neighboring buildings or Premises
or those having business with them whether by the use of any musical instrument,
radio, phonograph, unusual noise, or in any other way.
9. No tenant or its officers, agents, employees or invitees shall throw
anything out of doors, balconies or down the passageways.
10. Tenant shall not maintain armed security in or about the Premises nor
possess any weapons, explosives, combustibles or other hazardous devices in or
about the Building and/or Premises.
11. No tenant or its officers, agents, employees or invitees shall at any time
use, bring or keep upon the Premises any flammable, combustible, explosive, foul
or noxious fluid, chemical or substance, or do or permit anything to be done in
the leased Premises, or bring or keep anything therein, which shall in any way
increase the rate of fire insurance on the Building, or on the property kept
therein, or obstruct or interfere with the rights of other tenants, or in any
way injure or annoy them, or conflict with the regulations of the Fire
Department or the fire laws, or with any insurance policy upon the Building, or
any part thereof, or with any rules and ordinances established by the Board of
Health or other governmental authority.
12. No additional locks or bolts or any kind shall be placed upon any of the
doors or windows by any tenant, nor shall any changes by made in existing locks
or the mechanism thereof. Each tenant must, upon the termination of this
tenancy, restore to Landlord all keys of stores, offices, and toilet rooms,
either furnished to, or otherwise procured by, such tenant, and in the event of
the loss of any keys so furnished, such tenant shall pay to Landlord the cost of
replacing the same or of changing the lock or locks opened by such lost key if
Landlord shall deem it necessary to make such change.
13. All removals, or the carrying in or out of any safes, freight, furniture,
or bulky matter of any description must take place during the hours which
Landlord may determine from time to time. The moving of safes or other or bulky
matter of any kind must be made upon previous notice to the manager of the
Building and under his and her supervision, and the persons employed by any
tenant for such work must be acceptable to Landlord. Landlord reserves the
right to inspect all safes, freight or other bulky articles to be brought into
the Building and to exclude from the Building all safes, freight or other bulky
articles which violate any of these Rules and Regulations or the Lease of which
these Rules and Regulations are a part. Landlord reserves the right to prohibit
or impose conditions upon the installation on the Premises of heavy objects
which might overload the building floors. Landlord will not be responsible for
loss of or damage to any safes, freight, bulky articles or
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other property from any cause, and all damage done to the Building by moving or
maintaining any such safe or other property shall be repaired at the expense of
the tenant.
14. No tenant shall purchase or otherwise obtain for use in the Premises water,
ice, towel, vending machine, janitorial, maintenance or other like services, or
accept barbering or bootblacking services, except from persons authorized by
Landlord, and at hours and under regulations fixed by Landlord.
15. Landlord shall have the right to prohibit any advertising by any tenant
which, in Landlord's opinion, tends to impair the reputation of the Building or
its desirability as an office building and upon written notice from Landlord any
tenant shall refrain from or discontinue such advertising.
16. Landlord reserves the right to exclude from the Building between the hours
of 10:00 p.m. and 7:00 a.m. and at all hours of Saturdays, Sundays and legal
holidays all persons who do not present a pass signed by Landlord. Landlord
shall furnish passes to persons for whom any tenant requests in writing. Each
tenant shall be responsible for all persons for whom he requests passes and
shall be liable to Landlord for all acts of such persons. Landlord shall in no
case be liable for damages for any error with regard to the admission to or
exclusion from the Building of any person. In the case of invasion, mob, riot,
public excitement or other commotion, Landlord reserves the right to prevent
access to the Building during the continuance of the same, by the closing of the
gates and doors or otherwise, for the safety of the tenants and others and the
protection of the Building and the property therein.
17. Any outside contractor employed by any tenant shall, while in the Building,
be subject to the prior written approval of Landlord and subject to the Rules
and Regulations of the Building. Tenant shall be responsible for all acts of
such persons and Landlord shall not be responsible for any loss or damage to
property in the Premises, however occurring.
18. All doors opening onto public corridors shall be kept closed, except when
in use for ingress and egress, and left locked when not in use.
19. The requirements of tenants will be attended to only upon application to
the Office of the Building.
20. Canvassing, soliciting and peddling in the Building are prohibited and each
tenant shall cooperate to prevent the same.
21. All office equipment of any electrical or mechanical nature shall be placed
by tenants in the Premises in settings approved by Landlord, to absorb or
prevent any vibration, noise or annoyance.
22. No air conditioning unit or other similar apparatus shall be installed or
used by any tenant without the written consent of Landlord.
23. There shall not be used in any space, or in the public halls of the
Building either by any tenant or others, any hand trucks except those equipped
with rubber tires and side guards.
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24. Landlord will direct electricians as to where and how telephone and
telegraph wires are to be introduced. No boring or cutting for wires or
stringing of wires will be allowed without written consent of Landlord. The
location of telephones, call boxes and other office equipment affixed to the
Premises shall be subject to the approval of Landlord. All such work shall be
effected pursuant to permits issued by all applicable governmental authorities
having jurisdiction.
25. No vendor with the intent of selling such goods shall be allowed to
transport or carry beverages, food, food containers, etc., on any passenger
elevators. The transportation of such items shall be via the service elevators
in such manner as prescribed by Landlord.
26. Tenants shall cooperate with Landlord in the conservation of energy used in
or about the Building, including without rotation, cooperating with Landlord in
obtaining maximum effectiveness of the cooling system by closing drapes or other
window coverings when the sun's rays fall directly on windows of the Premises,
and closing windows and doors to prevent heat loss. Tenant shall not obstruct,
alter, or in any way impair the efficient operation of Landlord's heating,
lighting, ventilating and air conditioning system and shall not place bottles,
machines, parcels, or any other articles on the induction unit enclosure so as
to interfere with air flow. In addition, Tenant shall not obstruct, alter, or
in any way impair the proper circulation and regular maintenance and repair of
the induction unit by placing furniture less than 18 inches from the induction
unit. Tenant shall not tamper with or change the setting of any thermostats or
temperature control valves, and shall in general use heat, gas, electricity, air
conditioning equipment and heating equipment in a manner compatible with sound
energy conservation practices and standards.
27. All parking ramps and areas, pedestrian walkways, plazas, and other public
areas forming a part of the Building shall be under the sole and absolute
control of Landlord with the exclusive right to regulate and control these
areas. Tenant agrees to conform to the rules and regulations that may be
established by Landlord for these areas from time to time.
28. Landlord reserves the right to exclude or expel from the Building any
person who, in the judgment of Landlord, is intoxicated or under the influence
of liquor or drugs, or who shall in any manner do any act in violation of any of
the rules and regulations of the Building.
29. Tenant and its employees, agents, subtenants, contractors and invitees
shall comply with all applicable "nonsmoking" ordinances and, irrespective of
such ordinances, shall not smoke or permit smoking of cigarettes, cigars or
pipes outside of Tenant's Premises (including plaza areas) in any portions of
the Building except areas specifically designated as smoking areas by Landlord.
If required by applicable ordinances, Tenant shall provide smoking areas within
Tenant's Premises.
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