COMMERCIAL LEASE FULL SERVICE
RECEIVED FROM Internet Travel Network, a corporation, hereinafter referred to as
LESSEE, the sum of $ Two Thousand Two Hundred Sixty-Five and 50/100 DOLLARS
($2,265.50), evidenced by check, as a deposit which shall belong to Lessor and
shall be applied as follows:
<TABLE>
<CAPTION>
TOTAL RECEIVED BALANCE DUE PRIOR TO OCCUPANCY
<C>
<C>
<C>
Rent for the period from September 1 to October 1, 1996............... $2,285.50 $2,265.50 -0-
Security deposit (not applicable toward last month's rent)............ -0- -0- -0-
Other (Utilities payment for August and September, 1996).............. $ 700.00 $ 700.00 -0-
--------- --------- -------
TOTAL................................................................. $2,985.50 $2,965.50 -0-
</TABLE>
In the event that this Lease is not accepted by the Lessor within 5 days, the
total deposit received shall be refunded.
Lessee offers to lease from Lessor the premises situated in the city of Palo
Alto, County of Santa Clara, State of California, described as 451 Sherman
Avenue, upon the following TERMS and CONDITIONS:
1. TERM: The term hereof shall commence on September 1, 1996, and end on
August 31, 1999.
1.1 Options to Extend Lease. Lessor shall have one option to extend
-----------------------
the term of this Lease through a term ending March 31, 2001 and then a second
option (if the first option is exercised) for an additional term of 60 months.
The option(s) shall be exercised by giving notice of exercise of each option
("Option Notice") to Lessor at least six (6) months, but not more than one year,
before the expiration of the then current term, provided that if Lessee is in
default beyond any applicable cure period on the date of giving the option
notice, the option notice shall be totally ineffective, or if Lessee is in
default beyond any applicable cure period on the date the extended term is to
commence, the extended term shall not commence, and, in either case, this Lease
shall expire at the end of the initial term unless terminated sooner under the
provisions hereof.
2. RENT: The total rent shall be $2,285.50, payable as follows: monthly,
due on the first day of each month. All rents shall be paid to Lessor or his/her
authorized Agent, at the following address: Enterprise Development Co., P.O. Box
1785, Burlingame, CA 94011 or at such other places as may be designated by
Lessor from time to time. In the event rent is not paid within 5 days after due
date, Lessee agrees to pay a late charge of $100, plus interest at the greater
of 10% per annum or the maximum rate allowed at law for non-exempt lender
commercial loans on the delinquent amount. Lessee further agrees to pay $50.00
for each dishonored bank check. The late charge period is not a grace period,
and Lessor is entitled to make written demand for any rent if not paid when due.
2.1 Rent Adjustment. The monthly Rent shall be subject to adjustment
---------------
on the first day of the month after each one year anniversary of lease
commencement ("adjustment date"), as follows: the base for computing the
adjustment is the Consumer Price Index for all
<PAGE>
Urban Consumers (base year 1982-84--100) for San Francisco-Oakland-San Jose. All
items published by the United States Department of Labor, Bureau of Labor
Statistics ("Index"), which is most recently published prior to a given
"beginning Index" as defined in the Basic Lease Provisions. If the Index most
recently published prior to the adjustment date ("extension Index") has
increased over the beginning Index, the minimum monthly rent for the following
period shall be set by multiplying the minimum monthly rent for the immediately
prior period by a fraction, the numerator of which is the extension Index, and
the denominator of which is the beginning Index. For each adjustment, the
beginning Index becomes the prior extension Index date after the first
adjustment. Such adjustments shall be subject to the minimum percentage increase
of 4% per year and the maximum percentage of 6% per year. There is no
accumulation if the adjustment is smaller or larger than the minimum or maximum
percentage. If the Index is changed so that the base year differs from that used
for the beginning Index, the Index shall be converted in accordance with the
conversion factor published by the United States Department of Labor, Bureau of
Labor Statistics. If the Index is discontinued or revised during the term, such
other government Index or computation with which it is replaced shall be used in
order to obtain substantially the same result as would be obtained if the Index
had not been discontinued or revised.
2.2 Monthly Rent for Extended Terms. For the extended term, Rent
-------------------------------
shall continue with the same Rent charged during the last year of the initial
term plus the CPI adjustment as set forth above for the extended term.
2.3 Real Property Taxes. Lessor shall pay all real property taxes
-------------------
and assessments leveled or assessed against the Land and the Building by any
governmental entity or public authority during the Lease Term.
3. USE: The premises are to be used for the operation of general office,
sales, software R&D and internet services and for no other purposes, without
prior written consent of Lessor. Lessee shall not commit any waste upon the
premises, or any nuisance or act which may disturb the quiet enjoyment of any
tenant in the building.
4. USES PROHIBITED: Lessee shall not use any portion of the premises for
purposes other than those specified. No use shall be made or permitted to be
made upon the premises, nor acts done, which will increase the existing rate of
insurance upon the property, or cause cancellation of insurance policies
covering the property. Lessee shall not conduct or permit any sale by auction
on the premises.
4.1 Quiet Enjoyment and Condition of the Premises. As long as Lessee
---------------------------------------------
is not in default of this Lease beyond any applicable cure period, Lessee shall
quietly enjoy the premises without disturbance by Lessor, or by anyone claiming
a right to possession by or through Lessor, subject to the terms and provisions
of this Lease. This is a full service lease to Lessee so that Lessor shall
deliver the premises to Lessee clean and free of debris on the commencement date
and warrants to Lessee that the existing plumbing, fire sprinkler system,
lighting, air conditioning, heating and carpeting in the Premises shall be in
good operating condition on the commencement date. Furthermore, Lessor shall
keep the premises in good operating condition including adequate restroom
facilities, and adequate air conditioning and heating with thermostats, dampers,
and monitors necessary for adequate control and use within
<PAGE>
the premises. Lessor further warrants to Lessee that the premises comply with
all applicable building codes, regulations, ordinances, and laws in effect on
the commencement date. This warranty does not apply to any alterations or
utility installations made by Lessee. If the premises do not comply with this
warranty, Lessor shall promptly after receipt of written notice from Lessee
setting forth with specificity the nature and extent of such noncompliance,
rectify the same at Lessor's expense.
5. ASSIGNMENT AND SUBLETTING: Lessee shall not assign this Lease or
sublet any portion of the premises without prior written consent of the Lessor,
which shall not be unreasonably withheld. Any such assignment or subletting
without consent shall be void and, at the option of the Lessor, shall terminate
this Lease.
6. ORDINANCES AND STATUTES: Lessee shall comply in its use with all
statutes, ordinances, and requirements of all municipal, state and federal
authorities now in force, or which may later be in force. The commencement or
pendency of any state or federal court abatement proceeding affecting the use of
the premises shall, at the option of the Lessor, be deemed a breach of this
Lease.
7. MAINTENANCE, REPAIRS, ALTERATIONS: Unless otherwise indicated, Lessee
acknowledges that the Premises are in good order and repair upon lease
commencement except for any latent defects. Lessor, at its sole cost, shall
keep and maintain in good, safe, water tight, and sanitary order, condition,
appearance, and repair the premises. Lessee will be responsible solely for any
repairs or maintenance where it has abused or improperly used the premises
causing the need for such maintenance or repair. Notwithstanding the above, to
the extent an additional damper is needed in the HVAC system for adequate
control within the premises is required in what has been referred to as the
"founders premises" then that shall be installed at Lessee's expense.
No improvements or alteration of the premises that exceeds for non-structural
alterations $5,000.00 in cost shall be made without the prior written consent of
the Lessor. Prior to the commencement of any substantial repair, improvement, or
alteration, Lessee shall give Lessor at least two (2) days' written notice in
order that Lessor may post appropriate notices to avoid any liability for liens.
8. ENTRY AND INSPECTION: Lessee shall permit Lessor or Lessor's agents
to enter the premises at reasonable times and upon reasonable notice for the
purpose of inspecting the premises, and shall permit Lessor, at any time within
sixty (60) days prior to the expiration of this Lease, to place upon the
premises any usual "To Let" or "For Lease" signs, and permit persons desiring to
lease the premises to inspect the premises at reasonable times.
9. INDEMNIFICATION OF LESSOR: Lessor shall not be liable for any damage
or injury to Lessee, or any other person, or to any property, occurring on the
premises unless caused through active negligence or greater culpability of
Lessor. Lessee agrees to hold Lessor harmless from any claims for damages
arising out of Lessee's use of the premises, and to indemnify Lessor for any
expense incurred by Lessor in defending any such claims.
<PAGE>
10. POSSESSION: If Lessor is unable to deliver possession of the premises
at the commencement date set forth above, Lessor shall not be liable for any
damage caused by the delay, nor shall this Lease be void or voidable, but Lessee
shall not be liable for any rent until possession is delivered. Lessee may
terminate this Lease if possession is not delivered within 15 days of the
commencement term in Item 1.
11. LESSEE'S INSURANCE: Lessee, at his/her expense, shall maintain plate
glass and public liability insurance, including bodily injury and property
damage, insuring Lessee and Lessor with minimum coverage as follows: $2,000,000.
Lessee shall provide Lessor with a Certificate of Insurance showing Lessor as
additional insured. The policy shall require ten (10) days' written notice to
Lessor prior to cancellation or material change of coverage.
12. LESSOR'S INSURANCE: Lessor shall maintain hazard insurance covering
one hundred percent (100%) replacement cost of the Improvements throughout the
Lease term. Lessor's insurance will not insure Lessee's personal property or
leasehold improvements.
13. SUBROGATION: To the maximum extent permitted by insurance policies
which may be owned by the parties, Lessor and Lessee waive any and all rights of
subrogation which might otherwise exist.
14. UTILITIES: Lessor agrees that he/she shall be responsible for the
payment of all utilities, including water, gas, electricity, heat and other
services delivered to the premises. Utilities, including HVAC shall be provided
to the premises twenty-four (24) hours a day seven (7) days a week so that the
HVAC properly cools or warms, as the case may be, the premises during any hours
that Lessee chooses to use the premises and to properly maintain and repair the
HVAC system and all utilities and plumbing and electrical systems. For this
additional twenty-four (24) use of the HVAC system, Lessee shall have
thermostats in the premises and the system will be properly maintained for such
full utilized use at Lessor's expense. Lessee shall pay as an additional cost or
rent under this Lease for this 24 hour use for this premises as well as all
other space Lessee is leasing from Lessor, the cost of $350.00 per month payable
the first day of each month commencing August 1, 1996 and through each remaining
month of the Lease or extended term thereof so long as any space is being leased
by Lessee that requires 24 hour HVAC.
15. SIGNS: Lessor reserves the exclusive right to the roof, side and rear
walls of the premises. Lessee shall not construct any projecting sign or awning
without the prior written consent of Lessor, which shall not be unreasonably
withheld.
16. ABANDONMENT OF PREMISES: Lessee shall not abandon the premises at any
time during the term of this Lease. If Lessee does abandon the premises, or is
dispossessed by process of law, or otherwise, any personal property belonging to
Lessee left on the premises shall be deemed to be abandoned, at the option of
Lessor.
17. CONDEMNATION: If any part of the premises is condemned for public
use, and a part remains which is susceptible of occupation by Lessee, this Lease
shall, as to the part taken, terminate as of the date the condemnor acquires
possession. Lessee shall be required to pay such proportion of the rent for the
remaining term as the value of the premises remaining bears to the
<PAGE>
total value of the premises at the date of condemnation; provided however, that
Lessor may at his/her option, terminate this Lease as of the date the condemnor
acquires possession. In the event that the premises are condemned in whole, or
the remainder is not susceptible for use by the Lessee, this Lease shall
terminate upon the date which the condemnor acquires possession. All sums which
may be payable on account of any condemnation shall belong solely to the Lessor;
except that Lessee shall be entitled to retain any amount awarded to him/her for
his/her trade fixtures or moving expenses.
18. TRADE FIXTURES: Any and all improvements made to the premises during
the term shall belong to the Lessor, except trade fixtures of the Lessee. Lessee
may, upon termination, remove all his/her trade fixtures, but shall pay for all
costs necessary to repair any damage to the premises occasioned by the removal.
19. DESTRUCTION OF PREMISES: In the event of the destruction of the
premises during the term, from any cause, Lessor shall promptly repair the
premises, provided that such repairs can be reasonably made within one hundred
eighty (180) days. Such destruction shall not terminate this Lease, except that
Lessee shall be entitled to a proportionate reduction of rent while such repairs
are being made, based upon the extent to which the making of such repairs
interferes with the business of Lessee on the premises. If the repairs cannot be
made within one hundred eight (180) days, this Lease may be terminated at the
option of either party by giving written notice to the other party within the
one hundred eighty (180) day period. If the destruction is over 80% of the
building or Property to which the premises is a part then Lessor may terminate
this Lease at its election.
20. HAZARDOUS MATERIALS: Lessee shall not use, store, or dispose of any
hazardous substances upon the premises, except the use and storage of such
substances that are customarily used in Lessee's business, and are in compliance
with all environmental laws. Hazardous substances means any hazardous waste,
substance or toxic materials regulated under any environmental laws or
regulations applicable to the property.
21. INSOLVENCY: The appointment of a receiver, an assignment for the
benefits of creditors, or the filing of a petition in bankruptcy by or against
Lessee, shall constitute a breach of this Lease by Lessee.
22. DEFAULT BY LESSEE: In the event of any material breach of this Lease
by Lessee that is not cured within thirty (30) days' written notice to Lessee,
Lessor may, at his/her option, terminate the Lease and recover from Lessee: (a)
the worth at the time of award of the unpaid rent, which had been earned at the
time of termination; (b) 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
the award exceeds the amount of such rental loss that the Lessee proves could
have been reasonably avoided; (c) the worth at the time of award of the amount
by which the unpaid rent for the balance of the term after the time of award
exceeds the amount of such rental loss that the Lessee proves could be
reasonably avoided; and (d) any other amount necessary to compensate Lessor for
all the detriment proximately caused by the Lessee's failure to perform his/her
obligations under the Lease or which in the ordinary course of things would be
likely to result therefrom.
<PAGE>
Lessor may, in the alternative, continue this Lease in effect, as long as Lessor
does not terminate Lessee's right to possession, and Lessor may enforce all of
Lessor's rights and remedies under the Lease, including the right to recover the
rent as it becomes due under the Lease.
Nothing contained herein shall be deemed to limit any other rights or remedies
which Lessor may have.
22.1 DEFAULT BY LESSOR: Lessor shall not be deemed in breach of this
Lease unless Lessor fails to perform an obligation required of Lessor under this
Lease within thirty (30) days of written notice from Lessee specifying such
obligation not performed and demanding performance; provided, however, that if
the nature of Lessor's obligation is such that more than thirty (30) days after
such notice is reasonably required for its performance, the Lessor shall not be
in breach of this Lease if performance is commenced within thirty (30) days of
such notice and diligently pursued to completion.
23. SECURITY: The security deposit set forth above shall secure the
performance of the Lessee's obligations. Lessor may, but shall not be obligated
to apply all or portions of the deposit on account of Lessee's obligations. Any
balance remaining upon termination shall be returned to Lessee. Lessee shall not
have the right to apply the security deposit in payment of the last month's
rent.
24. DEPOSIT REFUNDS: The balance of all deposits shall be refunded within
three weeks (or otherwise required by law), form date possession is delivered to
Lessor or his/her authorized Agent, together with a statement showing any
charges made against such deposits by Lessor.
25. ATTORNEY'S FEE AND COSTS: In any action or proceeding involving a
dispute between Lessor and Lessee arising out of this Lease, the prevailing
party shall be entitled to reasonable attorney's fees.
26. WAIVER: No failure of either party to enforce any term of this Lease
shall be deemed to be a waiver.
27. NOTICES: Any notice which either party may or is required to give,
shall be given by mailing the same, postage prepaid, to Lessee at the premises,
or to Lessor at the address shown in Item 2, or at such other places as may be
designated by the parties from time to time. Notice shall be effective five days
after mailing, or on personal delivery.
28. HOLDING OVER: Any holding over after the expiration of this Lease,
with the consent of Owner, shall become a month-to-month tenancy at the monthly
rent payable in advance and otherwise subject to the terms of this Lease, as
applicable, until either party shall terminate the same by giving the other
party thirty (30) days' written notice.
29. TIME: Time is of the essence in this Lease.
30. HEIRS, ASSIGNS, SUCCESSORS: This Lease is binding upon and inures to
the benefit of the heirs, assigns and successors of the parties.
<PAGE>
31. OPTION FOR ADDITIONAL SPACE: Lessor gives Lessee the option to rent
any or all of five (5) additional suites in the building for which the premises
is a part for the suite numbers and rent as follows: Suite 107, Suite 109, Suite
111 for a combined rent of $1,250 per month; Suite 112 - $275.00 per month, and
Suite 113 - $370.00 per month. If Lessee exercises this option(s) more than six
(6) months after lease commencement date then the rent shall be the then
prevailing rental rate charged to the month-to-month tenant. Lessor will make
each of these suites available to Lessee upon receipt of thirty (30) days'
written notice term from Lessee that they are prepared to take down the suite
indicated. Rent will be as indicated above and subject the CPI adjustments set
forth in this Lease the term shall commence at the beginning of the month
following the end of the thirty (30) days' written notice from Lessee to Lessor
exercising this option as to the suite or suites to be taken and will end at the
end of the term of this Lease subject to the extensions granted in this Lease.
The leasing of this additional space shall cause the space to become part of the
premises under this Lease subject to all the terms and conditions of this Lease
except as modified in this paragraph. Lessee shall have five (5) business days
to exercise this right starting when Lessee is provided the offered rental rate.
Such rental shall be for the remaining term of this Lease with the same
extension rights. If Lessee rejects the rental rate offered then Lessor may
lease the space to anyone else for the same rate or higher.
32. EARLY TERMINATION: Lessee shall have the right to terminate this
Lease and the obligations thereunder before the end of the Lease term as set
forth in Paragraph 1 above, as to any or all of the suites leased by Lessee from
Lessor in the Building, on the following conditions: (1) Lessee gives Lessor at
least ninety (90) days prior written notice of this exercise of right to
terminate setting forth the space (suite(s)) being terminated and the date of
termination ("Early Termination Date") which shall be the last day of a month;
(b) the Early Termination Date is at least eighteen (18) months after the
commencement date of the Lease; (c) payment to Lessor on or before the Early
Termination Date an amount equal to five (5) months' rent at the then rental
rate being paid for the space for which the Lease is being terminated pursuant
to this paragraph; (d) payment to Lessor of all rents due up to the Early
Termination Date; and (e) as to the space (suite) in the Lease for 453 Sherman
Avenue commencing December 15, 1995 ("initial space"); the payment to Lessor on
or before the Early Termination Date of an amount equal to the number of months
rent or fraction thereof for rental of the initial space calculated by
multiplying the number of months left in the initial term for the initial space
by .1167.
33. LESSOR'S LIABILITY: In the event of a transfer of Lessor's title or
interest to the property during the term of this Lease, Lessee agrees that the
grantee of such title or interest shall be substituted as the Lessor under this
Lease, and the original Lessor shall be released of all further liability;
provided, that all deposits shall be transferred to the grantee.
34. ESTOPPEL CERTIFICATE:
(a) On ten (10) days' prior written notice from Lessor, Lessee shall
execute, acknowledge, and deliver to Lessor a statement in writing: (1)
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), the amount of any security
deposit, and the date to which the rent and other charged are paid in advance,
if any; and (2) acknowledging that there are not, to Lessee's knowledge, any
uncured defaults on the part of
<PAGE>
Lessor, or specifying such defaults if any are claimed. Any such statement may
be conclusively relied upon by any prospective buyer or encumbrancer of the
premises.
(b) At Lessor's option, Lessee's failure to deliver such statement
within such time shall be a material breach of this Lease or shall be conclusive
upon Lessee: (1) that this Lease is in full force and effect, without
modification except as may be represented by Lessor; (2) that there are no
uncured defaults in Lessor's performance; and (3) that not more than one month's
rent has been paid in advance.
(c) If Lessor desires to finance, refinance, or sell the premises, or
any part thereof, Lessee agrees to deliver to any lender or buyer designated by
Lessor such financial statements of Lessee as may be reasonably required by such
lender or buyer. All financial statements shall be received by the Lessor or the
lender or buyer in confidence and shall be used only for the purposes set forth.
35. ENTIRE AGREEMENT: The foregoing constitutes the entire Agreement
between the parties and may be modified only in writing signed by all parties.
The following exhibits are a part of this Lease:
The undersigned Lessee hereby acknowledges that he/she has thoroughly read and
approved each of the provisions contained in this Offer, and agrees to the terms
and conditions specified.
Lessee: ______________ Date: 9/9/96 Lessee: ________________ Date:________
------
Chief Financial Officer, Internet Travel Network, Inc.
Receipt for deposit acknowledged by: ___________________________________________
ACCEPTANCE
The undersigned Lessor accepts the foregoing Offer and agrees to lease the
premises on the terms and conditions set forth above.
Lessor: ______________ Date: 9/4/96 Lessor: ________________ Date:________
------
Lessee acknowledges receipt of a copy of the accepted Agreements.
Lessee: ______________ Date: 9/4/96 Lessee: ________________ Date:________
------
Chief Financial Officer, Internet Travel Network, Inc.
<PAGE>
The Master Lease monthly rent is increased by $1,875 per month, the total rent
being equal to $8,432.50 per month. The new lease, which includes the Master
Lease and this addendum will have the same duration, options, and yearly
increases and dates of increase as the Master Lease.
The Lessee will lease the space as is. The Lessor must approve in writing all
proposed changes, if any, but will not withhold consent unreasonably. The
Lessee will pay for all required and approved changes.
Suites may become available at different times but, in any case, not later than
two months following acceptance of this addendum. The Lessee will start to pay
additional rent incrementally as soon as each individual suite will become
available for occupancy or for construction, as required.
All other terms of the Master Lease will remain in effect.
Pio de Feo
Managing Partner
Enterprise Development Company
<PAGE>
ENTERPRISE DEVELOPMENT COMPANY
P.O. Box 1785
Burlingame, CA 94011-1785
Telephone & Fax: (650) 343-2492
July 9, 1996
Internet Travel Network
Mr. Michael Schradle, CFO
453 Sherman Avenue
Palo Alto, CA 94306
Dear Mr. M. Schradle;
The simplest way to add additional office space to that included in your
existing Lease Contract dated November 16, 1995 (Master Lease), is to add the
following addendum to that lease.
ADDENDUM A
The Master Lease is modified to add 5 individual suites to the currently leased
space. The suites are:
1) 451/107, 451/109, 451/111 which are collectively leased for $1,250.00
per month;
2) 451/112, which is leased for $275.00 per month; and
3) 451/113, which is leased for $350.00 per month.
<PAGE>
ASSIGNMENT OF LEASE
This Assignment of Lease ("Assignment") is entered into this _____ day
of September, 1996, by and between James M. Conte and Internet Travel Network.
ARTICLE 1 - DEFINITIONS
1.1 As used herein the term "ASSIGNOR" shall refer to James M.
LoConte.
1.2 As used herein the term "ASSIGNEE" shall refer to Internet Travel
Network.
1.3 As used herein the term "LESSOR" shall refer to Pio de Feo.
1.4 As used herein the term "PREMISES" shall refer to certain office
space located at 451 Sherman Avenue, Suite 100, Palo Alto, Santa Clara County,
California, as modified between ASSIGNOR and LESSOR effective January 1, 1995,
and consisting of approximately 861 square feet.
1.5 As used herein the term "MASTER LEASE" shall refer to the
Standard Office Lease and Addendum and any and all Exhibits and Attachments
thereto between Pio de Feo as lessor and Dr. Alan A. Silverberg, D.C., Inc., as
lessee, on or about January 6, 1992.
1.6 As used herein the term "LoCONTE ASSIGNMENT" shall refer to the
Assignment and Assumption of Lessor's Interest in Lease between Alan A.
Silverberg as assignor, Pio de Feo as lessor, and James LoConte as assignee and
Joseph LoConte as guarantor, dated October 28, 1994.
ARTICLE 2 - TERM
2.1 Commencement Date. The term of this ASSIGNMENT shall be for the
-----------------
remaining term of the MASTER LEASE, including any such option period extending
the term to February 28, 2002, which may be exercised by ASSIGNEE hereunder, and
shall commence on October 1, 1996, (the "Commencement Date").
This ASSIGNMENT goes into effect as of the Commencement Date and all
duties arising hereunder shall be transferred to ASSIGNEE as of the Commencement
Date and all duties arising hereunder shall be transferred to ASSIGNEE as of the
Commencement Date regardless of when actual occupation of the PREMISES by
ASSIGNEE begins.
2.2 Option to Extend Term. ASSIGNOR and ASSIGNEE hereby agree that
---------------------
paragraph 39 of the MASTER LEASE shall be non-operative and that the exercise of
the option to extend the lease term of the PREMISES by ASSIGNEE shall not void
ASSIGNEE's obligations arising hereunder.
<PAGE>
ARTICLE 3 - OBLIGATIONS OF PARTIES
3.1 LESSOR's Obligations. LESSOR's obligations shall not be changed,
--------------------
modified, extended, extinguished or harmed by this ASSIGNMENT. LESSOR shall
continue to exercise duties and rights over the PREMISES in accordance with the
terms of the MASTER LEASE.
3.2 ASSIGNEE's Obligations. ASSIGNEE assumes all obligations of
----------------------
ASSIGNOR arising under the MASTER LEASE and LoCONTE ASSIGNMENT and will be
solely liable for the payment of rent and improvements and the performance of
the terms and conditions of the MASTER LEASE, subject to any modifications by
the LoCONTE ASSIGNMENT.
ASSIGNEE shall not commit or permit to be committed any act or
omission which would violate any term or provision of the MASTER LEASE.
ASSIGNEE shall neither do nor permit anything to be done which would cause the
MASTER LEASE to be terminated or forfeited by reason of any right of termination
or forfeiture reserved or vested in LESSOR under the MASTER LEASE, and ASSIGNEE
shall indemnify and hold ASSIGNOR harmless from and against any and all
liability, judgments, costs, demands, claims, and damages of any kind whatsoever
(including, without limitation, attorneys' fees and court costs) to the extent
any act or omission by ASSIGNEE results in a violation of any term or provision
of the MASTER LEASE. Neither early termination of the term of this ASSIGNMENT
nor abandonment of the PREMISES by ASSIGNEE shall relieve or release ASSIGNEE of
any of the obligations transferred to it by this ASSIGNMENT.
ASSIGNEE hereby represents and warrants to ASSIGNOR that it has read
and is familiar with the MASTER LEASE and accepts all terms of the MASTER LEASE,
subject to any modifications of it by the LoCONTE ASSIGNMENT, and agrees to be
bound thereby.
3.3 ASSIGNOR's Obligations. This ASSIGNMENT transfers ASSIGNOR's
----------------------
entire interest in the PREMISES. ASSIGNOR maintains no interest of any kind
whatsoever, reversionary or present possessory, in the PREMISES.
Assignor shall have no liability to ASSIGNEE or any other person for
damage of any nature whatsoever as a result of the failure of LESSOR to perform
its obligations under the MASTER LEASE of LoCONTE ASSIGNMENT. ASSIGNOR
represents that it is not in breach of the MASTER LEASE or LoCONTE ASSIGNMENT
and is current in payment of all sums due under the MASTER LEASE and LoCONTE
ASSIGNMENT and shall indemnify and hold harmless ASSIGNEE from any obligations
accruing prior to the Commencement Date herein.
Upon expiration of the term of this ASSIGNMENT, all duties of the
ASSIGNOR now owing to the LESSOR shall expire.
ARTICLE 4 - RENT
4.1 Monthly Rent. ASSIGNEE shall timely pay monthly rent in the
------------
amount of the $1,762.76 on or before the 1st day of each and every month without
prior notice or demand
<PAGE>
and without any deduction, offset, or abatement, in lawful money of the United
States, to LESSOR at the address set forth in the ASSIGNMENT.
If the term of this ASSIGNMENT shall begin on a date other than the
first of the month, ASSIGNEE agrees to pay that portion the monthly rent accrued
on the PREMISES from the Commencement Date to the first of the next month.
All rent increases incurred on the PREMISES pursuant to the schedule
for increases stated in the MASTER LEASE or LoCONTE ASSIGNMENT shall be assumed
by ASSIGNEE.
ASSIGNEE's covenant to pay rent under this ASSIGNMENT shall continue
until the term of the MASTER LEASE, including any exercised extension periods,
has expired, whether or not ASSIGNEE vacates or abandons the premises or
terminates the ASSIGNMENT, unless ASSIGNEE and ASSIGNOR agree in writing that
ASSIGNOR will resume responsibility for payment of rents to LESSOR.
4.2 Additional Rent. To the extent of any additional rent owed under
---------------
the MASTER LEASE or LoCONTE ASSIGNMENT, ASSIGNEE shall pay all such amounts to
LESSOR.
4.3 Late Charge and Interest. Any and all late charges or interest
------------------------
incurred under that MASTER LEASE or LoCONTE ASSIGNMENT shall be paid by ASSIGNEE
to LESSOR.
4.4 Tenant Improvement Loan. ASSIGNEE agrees that it shall assume
-----------------------
repayment of the tenant improvement loan referred to in Addendum paragraph 51 of
the MASTER LEASE, pursuant to the repayment-amortization schedule dated April 7,
1992. ASSIGNEE agrees that it shall be solely responsible for repayment of the
tenant improvement loan to the extent of the repayment-amortization schedule
through the end of the MASTER LEASE term. ASSIGNEE further covenants that if the
option to extend the term of this ASSIGNMENT is exercised by ASSIGNEE or for
ASSIGNEE's benefit, it shall continue to repay the tenant improvement loan
pursuant to the repayment-amortization schedule referred to herein until said
loan is repaid in full. ASSIGNEE's exercise of the option to extend the term of
the lease of the PREMISES constitutes an assumption of the tenant improvement
loan and ASSIGNEE shall indemnify and hold harmless ASSIGNOR against any and all
requests, claims or demands for payment from LESSOR or anyone acting on LESSOR's
behalf, including LESSOR's creditors. Upon completion of repayment of the loan
either pursuant to the repayment-amortization schedule or earlier repayment of
the loan, ASSIGNEE shall obtain and secure from LESSOR a complete release of
ASSIGNOR from any and all claims arising or which may arise against ASSIGNOR or
in favor of LESSOR under the tenant improvement loan and repayment-amortization
schedule.
ASSIGNOR hereby agrees that if the option to extend the term of this
ASSIGNMENT is not exercised by ASSIGNEE or for ASSIGNEE's benefit, ASSIGNOR
shall, upon termination of this ASSIGNMENT and the lease, promptly repay to
LESSOR the balance remaining due on the tenant improvement loan after ASSIGNEE
fulfills its obligations under the
<PAGE>
loan repayment-amortization schedule, without abatement, reimbursement, or
contribution from ASSIGNEE.
ARTICLE 5 - SECURITY DEPOSIT
Upon execution hereof, ASSIGNOR hereby assigns to ASSIGNEE his rights
to the security deposit under the MASTER LEASE in the sum of $1,925.00.
ASSIGNEE shall pay to ASSIGNOR the sum of $1,925.00 within ten (10)
business days of the date of this ASSIGNMENT as consideration for ASSIGNOR's
transfer of rights to his security deposit under the MASTER LEASE.
ARTICLE 6 - USE OF PREMISES
ASSIGNEE shall only make lawful use of the PREMISES of a quality
reasonably comparable to that use by ASSIGNOR or consistent with the general
character of the premises generally, and such use of the PREMISES shall be in
accordance with the provisions of the MASTER LEASE regarding use of the premises
(paras. 1.4, 6.1).
ARTICLE 7 - CONDITION OF THE PREMISES
ASSIGNEE takes the PREMISES subject to all the rights of the LESSOR
reserved in the PREMISES, including liens and other priority rights, and subject
to all obligations imposed by the MASTER LEASE and in the condition as stated
below.
ASSIGNEE acknowledges that as of the Commencement Date the PREMISES
and every part thereof, are in good condition and without need of repair.
ASSIGNEE accepts the PREMISES "as is", ASSIGNEE having made all investigations
and tests it deems necessary to establish to its own satisfaction the condition
of the PREMISES.
ASSIGNEE accepts the PREMISES subject to all applicable zoning,
municipal, county and state laws, ordinances, and regulations governing and
regulating the use of the PREMISES and any covenants or restrictions of record.
ASSIGNEE acknowledges that neither ASSIGNOR nor LESSOR have made any
representations or warranties as to the condition of the PREMISES or its present
or future suitability for ASSIGNEE's purposes.
ARTICLE 8 - NOTICES
8.1 Manner of Service. Any notice, demand, request, consent,
-----------------
approval, submittal, or communication that any party desires or is required to
give to the other party or any other person shall be in writing and either
served personally or sent by prepaid, first-class, certified mail to the address
set forth in Section 8.3, or by facsimile transmission at the phone number set
forth in Section 8.3.
8.2 Change of Address. Any party may change its address or facsimile
-----------------
phone number by promptly notifying the other party of the change of address or
phone number in writing. Such written notice of a change of address shall be
made within five (5) business days of the effective date of said change of
address. In the event the notice of change of address is
<PAGE>
delivered to the facsimile telephone number of the other parties, such address
change is deemed effective and received upon receipt of the sender of a
transmission report verifying that the facsimile transmission was sent. In the
event notice of change of address is delivered through the U.S. mails, it shall
be sent by first class mail and shall be deemed effective and received three
days after mailing such notice.
In the event that any party fails to notify said other parties of a
change of address as stated above, said party shall be liable for costs incurred
by any other party who must employ outside services to locate said party. This
provision shall not allow any party to such locator collect fees against LESSOR.
8.3 Addresses.
---------
ASSIGNOR ASSIGNEE
Dr. James M. LoConte, D.C. Internet Travel Network
124 University Avenue Suite 201 453 Sherman Avenue
Palo Alto, California 94301 Palo Alto, California 94306
Attention: Michael Schradle
Fax to: (415) 326-1164 Fax to: (415) 614-6390
ASSIGNOR'S GUARANTOR LESSOR
Mr. Joseph LoConte Pio de Feo
28140 Story Hill Lane ____________________________
Los Altos Hills, CA 94022 ____________________________
____________________________
Fax to:_____________________
ARTICLE 9 - DISPUTES, ATTORNEYS' FEES
9.1 Agreement to Arbitrate Dispute. All disputes between ASSIGNOR
------------------------------
and ASSIGNEE arising under this ASSIGNMENT shall be submitted by the parties to
binding arbitration.
9.2 Attorneys' Fees. The prevailing party (by arbitration award or
---------------
settlement) shall be entitled to recover as part of such proceeding its
reasonable attorneys' fees and costs incurred in pursuing such arbitration and
judicially enforcing such arbitration award.
ARTICLE 10 - NOR RIGHT TO AMEND, ASSIGN OR SUBLEASE
ASSIGNEE shall not have a right to amend, assign or sublease the
PREMISES without ASSIGNOR's consent, which ASSIGNOR in its sole discretion may
deny unless ASSIGNOR is released by LESSOR from any liability or obligation
under the MASTER LEASE and LoCONTE ASSIGNMENT. Any such amendment, assignment
or sublease shall be deemed a termination of this ASSIGNMENT and ASSIGNOR's
liabilities and obligations under the MASTER LEASE and LoCONTE ASSIGNMENT.
Any such unapproved amendment, assignment or sublease shall not
relieve ASSIGNEE of liability for rents, improvement costs, loan repayment
obligation, expenses,
<PAGE>
additional costs or fees under the MASTER LEASE or LoCONTE ASSIGNMENT
transferred pursuant to this ASSIGNMENT.
ARTICLE 11 - MISCELLANEOUS
11.1 Entire Agreement. This ASSIGNMENT, Exhibits and Attachments
----------------
hereto constitute the entire agreement between the parties with respect to the
matters described or referred to herein. ASSIGNOR has made no representations or
warranties to ASSIGNEE except as expressly set forth herein. This ASSIGNMENT may
only be amended pursuant to the terms of the MASTER LEASE.
The following documents are incorporated by reference herein and
attached as exhibits:
EXHIBIT 1 MASTER LEASE
EXHIBIT 2 LOCONTE ASSIGNMENT
EXHIBIT 3 TENANT IMPROVEMENT LOAN
AMORTIZATION SCHEDULE DATED
APRIL 7, 1992
11.2 Counterparts. This ASSIGNMENT may be executed in two or more
------------
identical counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
11.3 Facsimile As Original. A facsimile copy of this ASSIGNMENT may
---------------------
be executed as an original.
11.4 LESSOR Consent. This ASSIGNMENT is conditioned on acceptance
--------------
and consent by LESSOR as to the ASSIGNMENT and all the terms and conditions
stated herein.
11.5 Due Authority. Each party represents and warrants that the
-------------
person(s) signing on its behalf have the authority to bind it to this ASSIGNMENT
<PAGE>
Executed as of the date first set forth above.
ASSIGNOR ASSIGNEE
________________________________________ INTERNET TRAVEL NETWORK
James M. LoConte, D.C.
________________________________________ By:_______________________________
Joseph LoConte, Cosigner
Its:______________________________
CONSENT TO ASSIGNMENT
The undersigned LESSOR hereby agrees to and accepts the above
Assignment of Lease and the terms thereof including the Option to Extend, with
the understanding and condition that the Assignment of Lease does not release
ASSIGNOR from the contracted obligations under the MASTER LEASE and LoCONTE
ASSIGNMENT during the initial term of the MASTER LEASE should the ASSIGNEE fail
to perform any obligations of the MASTER LEASE and LoCONTE ASSIGNMENT.
Date: 9/30/96 LESSOR:
---------------------------------
__________________________________
Pio de Feo
<PAGE>
February 4, 1996
Dr. J. LoConte
California Avenue Chiropractic
451 Sherman Avenue, Suite #100
Palo Alto, CA 94306
Re: Rent escalation
Dear Dr. LoConte:
Pursuant to the terms of the Addendum to you lease Assignment, the
referenced Master Lease dated January 6, 1992, and the letter dated Sep. 27,
1995, your monthly rent is scheduled to increase effective March 1, 1996. This
increase is computed in accordance with the Consumer Price Index (CPI) and is
limited to a minimum of 4% and a maximum of 8%. Because the CPI increase during
the last year has been less than 4%, your monthly rent increase will be based on
the minimum of 4%. As such, starting with the month of December 1994, and each
month thereafter until changed in accordance with the terms of your lease, your
basic rent shall be $1,694.96 * 1.04 = $1,762.76 reflecting that increase. Your
total monthly payment, including the loan payment schedule of $130.04, shall be:
$1,762.76 + $130.04 = $1,892.80.
If you have any questions regarding this information, please contact
our offices.
Sincerely,
Pio de Feo
Managing Partner
<PAGE>
ASSIGNMENT AND ASSUMPTION OF LESSOR'S INTEREST IN LEASE
1. Dr. Alan A. Silverberg, D.C., Inc. ("Assignor") does hereby assign and
transfer to James M. LoConte ("Assignee") for valuable consideration, the
receipt and sufficiency of which is acknowledged, all of Assignor rights
under that certain Lease (the "Master Lease") dated Jan. 6, 1992 by and
between Pio de Feo as Lessor (and Landlord), and Dr. Alan Silverberg, D.C.,
Inc. as Lessee, concerning the real property commonly known as 451 Sherman
Avenue, Suite 100, Palo Alto, California (the "Premises").
2. Assignee hereby accepts the foregoing assignment and assumes and agrees to
fully observe and perform all obligations of the Assignor under the Master
Lease. Including among these obligations accepted by the Assignee are the
Assignor obligations relative to the personal loan granted by Pio de Feo to
the Assignor according to all terms of the loan as described in Tenant
Improvement Loan document dated April 7, 1992 and signed by the Assignor,
by Pio de Feo and by Herman Harrow. The balance of this loan, prior to the
Oct. 1, 1994 payment, is $9,599.23 and the fixed monthly payment is $130.04
which includes Principal and Interest payments.
3. Mr. Joseph LoConte, father of the Assignee, is a Cosigner for all
obligations of the Assignee under the terms of this Assignment contract.
The Cosigner promises to personally perform all obligations of the
Assignee, should the Assignee fail to do so, including paying the monthly
rent according to the lease schedule in the Master Lease and paying the
loan installments according to the terms of Tenant Improvement loan of Par.
3.
4. Assignor does assign to the Assignee the security deposit under said
Lease in the sum of $1,925.00.
5. Assignor and Assignee agree that this assignment is subject to the terms
and conditions of Landlord's consent to Assignment set forth in the next
page.
<PAGE>
LANDLORD'S CONSENT TO ASSIGNMENT
1. Landlord's consent to Assignment (Consent) is made and given this Oct. 28
day of 1994 by Pio de Feo (Lessor and Landlord's) under the Lease described
in the foregoing assignment, subject to the terms and conditions stated in
this Consent
2. Reservation of Landlord's rights. Landlord consent to the Assignment
--------------------------------
is given pursuant to the Master Lease. The landlord specifically reserves
all of Landlord's rights and privileges under the Master Lease. It is
expressly understood that nothing in this consent shall be construed to
modify the Master Lease or to waive any of Landlord's rights and privileges
thereunder.
THE EFFECTIVE DATE OF THIS ASSIGNMENT IS JAN. 1, 1995.
Dated Oct. 28, 1994
ASSIGNOR: (Print) A. Silverberg (Sign)
----------------------- -----------------------------
ASSIGNEE: (Print) James LoConte (Sign)
----------------------- -----------------------------
ASSIGNEE CO-SIGNER: (Print) Joseph LoConte (Sign)
----------------------- -----------------------------
LESSOR/LANDLORD: (Print) Pio de Feo (Sign)
----------------------- -----------------------------
<PAGE>
ASSIGNMENT OF LEASE
This Assignment of Lease ("Assignment") is entered into this _____ day
of September, 1996, by and between James M. LoConte and Internet Travel Network.
ARTICLE 1 - DEFINITIONS
1.1 As used herein the term "ASSIGNOR" shall refer to James M.
LoConte.
1.2 As used herein the term "ASSIGNEE" shall refer to Internet Travel
Network.
1.3 As used herein the term "LESSOR" shall refer to Pio de Feo.
1.4 As used herein the term "PREMISES" shall refer to certain office
space located at 451 Sherman Avenue, Suite 100, Palo Alto, Santa Clara County,
California, as modified between ASSIGNOR and LESSOR effective January 1, 1995,
and consisting of approximately 861 square feet.
1.5 As used herein the term "MASTER LEASE" shall refer to the
Standard Office Lease and Addendum and any and all Exhibits and Attachments
thereto between Pio de Feo as lessor and Dr. Alan A. Silverberg, D.C., Inc., as
lessee, on or about January 6, 1992.
1.6 As used herein the term "LoCONTE ASSIGNMENT" shall refer to the
Assignment and Assumption of Lessor's Interest in Lease between Alan A.
Silverberg as assignor, Pio de Feo as lessor, and James LoConte as assignee and
Joseph LoConte as guarantor, dated October 28, 1994.
ARTICLE 2 - TERM
2.1 Commencement Date. The term of this ASSIGNMENT shall be for the
-----------------
remaining term of the MASTER LEASE, including any such option period extending
the term to February 28, 2002, which may be exercised by ASSIGNEE hereunder, and
shall commence on October 1, 1996, (the "Commencement Date").
This ASSIGNMENT goes into effect as of the Commencement Date and all
duties arising hereunder shall be transferred to ASSIGNEE as of the Commencement
Date and all duties arising hereunder shall be transferred to ASSIGNEE as of the
Commencement Date regardless of when actual occupation of the PREMISES by
ASSIGNEE begins.
2.2 Option to Extend Term. ASSIGNOR and ASSIGNEE hereby agree that
---------------------
paragraph 39 of the MASTER LEASE shall be non-operative and that the exercise of
the option to extend the lease term of the PREMISES by ASSIGNEE shall not void
ASSIGNEE's obligations arising hereunder.
ARTICLE 3 - OBLIGATIONS OF PARTIES
3.1 LESSOR's Obligations. LESSOR's obligations shall not be changed,
--------------------
modified, extended, extinguished or harmed by this ASSIGNMENT. LESSOR shall
continue to exercise duties and rights over the PREMISES in accordance with the
terms of the MASTER LEASE.
3.2 ASSIGNEE's Obligations. ASSIGNEE assumes all obligations of
----------------------
ASSIGNOR arising under the MASTER LEASE and LoCONTE ASSIGNMENT and will be
solely liable for the payment of rent and improvements and the performance of
the terms and conditions of
1
<PAGE>
the MASTER LEASE, subject to any modifications by the LoCONTE ASSIGNMENT.
ASSIGNEE shall not commit or permit to be committed any act or
omission which would violate any term or provision of the MASTER LEASE.
ASSIGNEE shall neither do nor permit anything to be done which would cause the
MASTER LEASE to be terminated or forfeited by reason of any right of termination
or forfeiture reserved or vested in LESSOR under the MASTER LEASE, and ASSIGNEE
shall indemnify and hold ASSIGNOR harmless from and against any and all
liability, judgments, costs, demands, claims, and damages of any kind whatsoever
(including, without limitation, attorneys' fees and court costs) to the extent
any act or omission by ASSIGNEE results in a violation of any term or provision
of the MASTER LEASE. Neither early termination of the term of this ASSIGNMENT
nor abandonment of the PREMISES by ASSIGNEE shall relieve or release ASSIGNEE of
any of the obligations transferred to it by this ASSIGNMENT.
ASSIGNEE hereby represents and warrants to ASSIGNOR that it has read
and is familiar with the MASTER LEASE and accepts all terms of the MASTER LEASE,
subject to any modifications of it by the LoCONTE ASSIGNMENT, and agrees to be
bound thereby.
3.3 ASSIGNOR's Obligations. This ASSIGNMENT transfers ASSIGNOR's
----------------------
entire interest in the PREMISES. ASSIGNOR maintains no interest of any kind
whatsoever, reversionary or present possessory, in the PREMISES.
Assignor shall have no liability to ASSIGNEE or any other person for
damage of any nature whatsoever as a result of the failure of LESSOR to perform
its obligations under the MASTER LEASE of LoCONTE ASSIGNMENT. ASSIGNOR
represents that it is not in breach of the MASTER LEASE or LoCONTE ASSIGNMENT
and is current in payment of all sums due under the MASTER LEASE and LoCONTE
ASSIGNMENT and shall indemnify and hold harmless ASSIGNEE from any obligations
accruing prior to the Commencement Date herein.
Upon expiration of the term of this ASSIGNMENT, all duties of the
ASSIGNOR now owing to the LESSOR shall expire.
ARTICLE 4 - RENT
4.1 Monthly Rent. ASSIGNEE shall timely pay monthly rent in the
------------
amount of the $1,762.76 on or before the 1st day of each and every month without
prior notice or demand and without any deduction, offset, or abatement, in
lawful money of the United States, to LESSOR at the address set forth in the
ASSIGNMENT.
If the term of this ASSIGNMENT shall begin on a date other than the
first of the month, ASSIGNEE agrees to pay that portion the monthly rent accrued
on the PREMISES from the Commencement Date to the first of the next month.
All rent increases incurred on the PREMISES pursuant to the schedule
for increases stated in the MASTER LEASE or LoCONTE ASSIGNMENT shall be assumed
by ASSIGNEE.
ASSIGNEE's covenant to pay rent under this ASSIGNMENT shall continue
until the term of the MASTER LEASE, including any exercised extension periods,
has expired, whether or not ASSIGNEE vacates or abandons the premises or
terminates the ASSIGNMENT, unless ASSIGNEE and ASSIGNOR agree in writing that
ASSIGNOR will resume responsibility for payment of rents to LESSOR.
4.2 Additional Rent. To the extent of any additional rent owed under
the MASTER LEASE or LoCONTE ASSIGNMENT, ASSIGNEE shall pay all such amounts to
LESSOR.
2
<PAGE>
4.3 Late Charge and Interest. Any and all late charges or interest
------------------------
incurred under that MASTER LEASE or LoCONTE ASSIGNMENT shall be paid by ASSIGNEE
to LESSOR.
4.4 Tenant Improvement Loan. ASSIGNEE agrees that it shall assume
-----------------------
repayment of the tenant improvement loan referred to in Addendum paragraph 51 of
the MASTER LEASE, pursuant to the repayment-amortization schedule dated April 7,
1992. ASSIGNEE agrees that it shall be solely responsible for repayment of the
tenant improvement loan to the extent of the repayment-amortization schedule
through the end of the MASTER LEASE term. ASSIGNEE further covenants that if the
option to extend the term of this ASSIGNMENT is exercised by ASSIGNEE or for
ASSIGNEE's benefit, it shall continue to repay the tenant improvement loan
pursuant to the repayment-amortization schedule referred to herein until said
loan is repaid in full. ASSIGNEE's exercise of the option to extend the term of
the lease of the PREMISES constitutes an assumption of the tenant improvement
loan and ASSIGNEE shall indemnify and hold harmless ASSIGNOR against any and all
requests, claims or demands for payment from LESSOR or anyone acting on LESSOR's
behalf, including LESSOR's creditors. Upon completion of repayment of the loan
either pursuant to the repayment-amortization schedule or earlier repayment of
the loan, ASSIGNEE shall obtain and secure from LESSOR a complete release of
ASSIGNOR from any and all claims arising or which may arise against ASSIGNOR or
in favor of LESSOR under the tenant improvement loan and repayment-amortization
schedule.
ASSIGNOR hereby agrees that if the option to extend the term of this
ASSIGNMENT is not exercised by ASSIGNEE or for ASSIGNEE's benefit, ASSIGNOR
shall, upon termination of this ASSIGNMENT and the lease, promptly repay to
LESSOR the balance remaining due on the tenant improvement loan after ASSIGNEE
fulfills its obligations under the loan repayment-amortization schedule, without
abatement, reimbursement, or contribution from ASSIGNEE.
ARTICLE 5 - SECURITY DEPOSIT
Upon execution hereof, ASSIGNOR hereby assigns to ASSIGNEE his rights
to the security deposit under the MASTER LEASE in the sum of $1,925.00.
ASSIGNEE shall pay to ASSIGNOR the sum of $1,925.00 within ten (10)
business days of the date of this ASSIGNMENT as consideration for ASSIGNOR's
transfer of rights to his security deposit under the MASTER LEASE.
ARTICLE 6 - USE OF PREMISES
ASSIGNEE shall only make lawful use of the PREMISES of a quality
reasonably comparable to that use by ASSIGNOR or consistent with the general
character of the premises generally, and such use of the PREMISES shall be in
accordance with the provisions of the MASTER LEASE regarding use of the premises
(paras. 1.4, 6.1).
ARTICLE 7 - CONDITION OF THE PREMISES
ASSIGNEE takes the PREMISES subject to all the rights of the LESSOR
reserved in the PREMISES, including liens and other priority rights, and subject
to all obligations imposed by the MASTER LEASE and in the condition as stated
below.
ASSIGNEE acknowledges that as of the Commencement Date the PREMISES
and every part thereof, are in good condition and without need of repair.
ASSIGNEE accepts the
3
<PAGE>
PREMISES "as is", ASSIGNEE having made all investigations and tests it deems
necessary to establish to its own satisfaction the condition of the PREMISES.
ASSIGNEE accepts the PREMISES subject to all applicable zoning,
municipal, county and state laws, ordinances, and regulations governing and
regulating the use of the PREMISES and any covenants or restrictions of record.
ASSIGNEE acknowledges that neither ASSIGNOR nor LESSOR have made any
representations or warranties as to the condition of the PREMISES or its present
or future suitability for ASSIGNEE's purposes.
ARTICLE 8 - NOTICES
8.1 Manner of Service. Any notice, demand, request, consent,
-----------------
approval, submittal, or communication that any party desires or is required to
give to the other party or any other person shall be in writing and either
served personally or sent by prepaid, first-class, certified mail to the address
set forth in Section 8.3, or by facsimile transmission at the phone number set
forth in Section 8.3.
8.2 Change of Address. Any party may change its address or facsimile
-----------------
phone number by promptly notifying the other party of the change of address or
phone number in writing. Such written notice of a change of address shall be
made within five (5) business days of the effective date of said change of
address. In the event the notice of change of address is delivered to the
facsimile telephone number of the other parties, such address change is deemed
effective and received upon receipt of the sender of a transmission report
verifying that the facsimile transmission was sent. In the event notice of
change of address is delivered through the U.S. mails, it shall be sent by first
class mail and shall be deemed effective and received three days after mailing
such notice.
In the event that any party fails to notify said other parties of a
change of address as stated above, said party shall be liable for costs incurred
by any other party who must employ outside services to locate said party. This
provision shall not allow any party to such locator collect fees against LESSOR.
8.3 Addresses.
---------
ASSIGNOR ASSIGNEE
-------- --------
Dr. James M. LoConte, D.C. Internet Travel Network
124 University Avenue Suite 201 453 Sherman Avenue
Palo Alto, California 94301 Palo Alto, California 94306
Attention: Michael Schradle
Fax to: (415) 326-1164 Fax to: (415) 614-6390
ASSIGNOR'S GUARANTOR LESSOR
-------------------- ------
Mr. Joseph LoConte Pio de Feo
28140 Story Hill Lane /s/ Pio de Feo
----------------------------
Los Altos Hills, CA 94022 ____________________________
____________________________
Fax to:_____________________
<PAGE>
ARTICLE 9 - DISPUTES, ATTORNEYS' FEES
9.1 Agreement to Arbitrate Dispute. All disputes between ASSIGNOR and
------------------------------
ASSIGNEE arising under this ASSIGNMENT shall be submitted by the parties to
binding arbitration.
9.2 Attorneys' Fees. The prevailing party (by arbitration award or
---------------
settlement) shall be entitled to recover as part of such proceeding its
reasonable attorneys' fees and costs incurred in pursuing such arbitration and
judicially enforcing such arbitration award.
ARTICLE 10 - NO RIGHT TO AMEND, ASSIGN OR SUBLEASE
ASSIGNEE shall not have a right to amend, assign or sublease the
PREMISES without ASSIGNOR's consent, which ASSIGNOR in its sole discretion may
deny unless ASSIGNOR is released by LESSOR from any liability or obligation
under the MASTER LEASE and LoCONTE ASSIGNMENT. Any such amendment, assignment or
sublease shall be deemed a termination of this ASSIGNMENT and ASSIGNOR's
liabilities and obligations under the MASTER LEASE and LoCONTE ASSIGNMENT.
Any such unapproved amendment, assignment or sublease shall not
relieve ASSIGNEE of liability for rents, improvement costs, loan repayment
obligation, expenses, additional costs or fees under the MASTER LEASE or LoCONTE
ASSIGNMENT transferred pursuant to this ASSIGNMENT.
ARTICLE 11 - MISCELLANEOUS
11.1 Entire Agreement. This ASSIGNMENT, Exhibits and Attachments
----------------
hereto constitute the entire agreement between the parties with respect to the
matters described or referred to herein. ASSIGNOR has made no representations or
warranties to ASSIGNEE except as expressly set forth herein. This ASSIGNMENT may
only be amended pursuant to the terms of the MASTER LEASE.
The following documents are incorporated by reference herein and
attached as exhibits:
EXHIBIT 1 MASTER LEASE
EXHIBIT 2 LOCONTE ASSIGNMENT
EXHIBIT 3 TENANT IMPROVEMENT LOAN AMORTIZATION SCHEDULE DATED
APRIL 7, 1992
11.2 Counterparts. This ASSIGNMENT may be executed in two or more
------------
identical counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
11.3 Facsimile As Original. A facsimile copy of this ASSIGNMENT may
---------------------
be executed as an original.
11.4 LESSOR Consent. This ASSIGNMENT is conditioned on acceptance and
--------------
consent by LESSOR as to the ASSIGNMENT and all the terms and conditions stated
herein.
11.5 Due Authority. Each party represents and warrants that the
------------
person(s) signing on its behalf have the authority to bind it to this
ASSIGNMENT.
<PAGE>
Executed as of the date first set forth above.
ASSIGNOR: ASSIGNEE:
INTERNET TRAVEL NETWORK
____________________________
JAMES M. LoCONTE, D.C.
By /s/[SIGNITURE ILLEGIBLE]^^
____________________________ ---------------------------
JOSEPH LoCONTE, COSIGNER Its [ILLEGIBLE]
---------------------------
CONSENT TO ASSIGNMENT
The undersigned LESSOR hereby agrees to and accepts the above
Assignment of Lease and the terms thereof including the Option to Extend, with
the understanding and condition that the Assignment of Lease does not release
ASSIGNOR from the contracted obligations under the MASTER LEASE and LoCONTE
ASSIGNMENT during the initial term of the MASTER LEASE should the ASSIGNEE fail
to perform any obligations of the MASTER LEASE and LoCONTE ASSIGNMENT.
Date: 9/30/96 LESSOR:
------------------
/s/ Pio de Feo
-------------------------
Pio de Feo
<PAGE>
February 4, 1996
Dr. J. LoConte
California Avenue Chiropractic
451 Sherman Avenue, Suite #100
Palo Alto, CA 94306
Re: Rent escalation
Dear Dr. LoConte:
Pursuant to the terms of the Addendum to you lease Assignment, the referenced
Master Lease dated January 6, 1992, and the letter dated Sep. 27, 1995, your
monthly rent is scheduled to increase effective March 1, 1996. This increase is
computed in accordance with the Consumer Price Index (CPI) and is limited to a
minimum of 4% and a maximum of 8%. Because the CPI increase during the last year
has been less than 4%, your monthly rent increase will be based on the minimum
of 4%. As such, starting with the month of December 1994, and each month
thereafter until changed in accordance with the terms of your lease, your basic
rent shall be $1,694.96 * 1.04 = $1,762.76 reflecting that increase. Your total
monthly payment, including the loan payment schedule of $130.04, shall be:
$1,762.76 + $130.04 = $1,892.80.
If you have any questions regarding this information, please contact our
offices.
Sincerely,
Pio de Feo
Managing Partner
<PAGE>
ASSIGNMENT AND ASSUMPTION OF LESSOR'S INTEREST IN LEASE
1. Dr. Alan A. Silverberg, D.C., Inc. ("Assignor") does hereby assign and
----------------------------------
transfer to James M. LoConte ("Assignee") for valuable consideration, the
-----------------------------
receipt and sufficiency of which is acknowledged, all of Assignor rights under
that certain Lease (the "Master Lease") dated Jan. 6, 1992 by and between Pio de
------------ ------
Feo as Lessor (and Landlord), and Dr. Alan Silverberg, D.C., Inc. as Lessee,
--- -------------------------------
concerning the real property commonly known as 451 Sherman Avenue, Suite 100,
------------------------------
Palo Alto, California (the "Premises").
---------------------
2. Assignee hereby accepts the foregoing assignment and assumes and agrees to
fully observe and perform all obligations of the Assignor under the Master
Lease. Including among these obligations accepted by the Assignee are the
Assignor obligations relative to the personal loan granted by Pio de Feo to the
Assignor according to all terms of the loan as described in Tenant Improvement
Loan document dated April 7, 1992 and signed by the Assignor, by Pio de Feo and
by Herman Harrow. The balance of this loan, prior to the Oct. 1, 1994 payment,
is $9,599.23 and the fixed monthly payment is $130.04 which includes Principal
and Interest payments.
3. Mr. Joseph LoConte, father of the Assignee, is a Cosigner for all
------------------
obligations of the Assignee under the terms of this Assignment contract. The
Cosigner promises to personally perform all obligations of the Assignee, should
the Assignee fail to do so, including paying the monthly rent according to the
lease schedule in the Master Lease and paying the loan installments according to
the terms of Tenant Improvement loan of Par. 3.
4. Assignor does assign to the Assignee the security deposit under said Lease
in the sum of $1,925.00.
5. Assignor and Assignee agree that this assignment is subject to the terms
and conditions of Landlord's consent to Assignment set forth in the next page.
<PAGE>
LANDLORD'S CONSENT TO ASSIGNMENT
1. Landlord's consent to Assignment (Consent) is made and given this Oct. 28
-------
day of 1994 by Pio de Feo (Lessor and Landlord's) under the Lease described in
---- ----------
the foregoing assignment, subject to the terms and conditions stated in this
Consent
2. Reservation of Landlord's rights. Landlord consent to the Assignment is
--------------------------------
given pursuant to the Master Lease. The landlord specifically reserves all of
Landlord's rights and privileges under the Master Lease. It is expressly
understood that nothing in this consent shall be construed to modify the Master
Lease or to waive any of Landlord's rights and privileges thereunder.
THE EFFECTIVE DATE OF THIS ASSIGNMENT IS JAN. 1, 1995.
<TABLE>
<C>
<C>
Dated Oct. 28, 1994
-----------------
ASSIGNOR: (Print) A. Silverberg (Sign) /s/ A. Silverberg
----------------------- -------------------------
ASSIGNEE: (Print) James LoConte (Sign) /s/ James LoConte
----------------------- -------------------------
ASSIGNEE CO-SIGNER: (Print) Joseph LoConte (Sign) /s/ Joseph LoConte
----------------------- -------------------------
LESSOR/LANDLORD: (Print) Pio de Feo (Sign) /s/ Pio de Feo
----------------------- -------------------------
</TABLE>
<PAGE>
STANDARD OFFICE LEASE - GROSS
AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION
1. Basic Lease Provisions ("Basic Lease Provisions")
----------------------
1.1 Parties: This Lease, dated for reference purposes only. January
-------
6, 1992, is made by and between Pio DeFeo, an Individual (therein called
"Lessor") and Dr. Alan A. Silverberg, D.C., Inc., doing business under the name
of California Avenue Chiropractic (therein called "Lessee").
1.2 Premises: Suite Number(s) #N, 1st floor, consisting of
--------
approximately 1,100 sq. 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 451 Sherman
--------
Avenue, in the City of Palo Alto, County of Santa Clara, State of California as
more particularly described in Exhibit A hereto, and as defined in paragraph 2.
1.4 Use: Chiropractic Office, subject to paragraph 6.
---
1.5 Term: five (5) years commencing March 1, 1992 ("Commencement
----
Date") and ending February 28, 1997, as defined in paragraph 3.
1.6 Base Rent: One Thousand Nine Hundred Twenty-five & No/100
---------
Dollars ($1,925.00) per month, payable on the 1st day of each month per
paragraph 4.1.
1.7 Base Rent Increase: On March 1, 1993, and each subsequent year,
------------------
the monthly Base Rent payable under paragraph 1.6 above shall be adjusted as
provided in paragraph 4.3 below.
1.8 Rent Paid Upon Execution: One Thousand Nine Hundred Twenty-five
------------------------
and No/100 Dollars ($1,925.00) as prepaid rent for April 1992. (The rent for
March 1992 is abated.)
1.9 Security Deposit: One Thousand Nine Hundred Twenty-five and
----------------
No/100 Dollars ($1,925.00).
1.10 Deleted
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." Lessor hereby leases to Lessee and Lessee leases from
<PAGE>
Lessor 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 Deleted.
2.2.1 Deleted.
2.2.2 Deleted.
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 Lessor from time to time for the general non-exclusive use of Lessor, Lessee
and of other lessees 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. Lessee 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, customers, and invitees to so abide and conform. Lessor or
such other person(s) as Lessor 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 and rules and regulations. Lessor shall not be
responsible to Lessee for the noncompliance with said rules and regulations by
other lessees, their agents, employees and invitees of the Office Building
Project.
2.5 Common Areas--Changes. Lessor shall have the right, in
---------------------
Lessor's sole discretion, from time to time:
(a) 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, Lessor shall at all times provide the parking facilities
required by applicable law;
(b) To close temporarily any of the Common Areas for
maintenance purposes so long as reasonable access to the Premises remains
available;
(c) 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
<PAGE>
(d) To add additional buildings and improvements to the
Common Areas;
(e) To use the Common Areas while engaged in making
additional improvements, repairs or alterations to the Office Building Project
or any portion thereof;
(f) 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
is Lessor may, in the exercise of sound business judgment deem to be
appropriate.
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.
3.2 Delay in Possession. Notwithstanding said Commencement Date,
-------------------
if for any reason Lessor cannot deliver possession of the Premises to Lessee on
said date and subject to paragraph 3.2.2, Lessor shall not be subject to any
liability therefor, nor shall such failure affect the validity of this Lease or
the obligations of Lessee hereunder or extend the term hereof; but, in such
case, Lessee shall not be obligated to pay rent or perform any other obligation
of Lessee under the terms of this Lease, except as may be otherwise provided in
this Lease, until possession of the Premises is tendered to Lessee, as
hereinafter defined; provided, however, that if Lessor shall not have delivered
possession of the Premises within sixty (60) days following said Commencement
Date, as the same may be extended under the terms of a Work Letter executed by
Lessor and Lessee. Lessee may, at Lessee's option, by notice in writing to
Lessor within ten (10) days thereafter, cancel this Lease, in which event the
parties shall be discharged from all obligations hereunder; provided, however,
that, as to Lessee's obligations, Lessee first reimburses Lessor for all costs
incurred for Non-Standard improvements and, as o Lessor's obligations, Lessor
shall return any money previously deposited by Lessee (less any offsets due
Lessor for Non-Standard Improvements); and provided further, that if such
written notice by Lessee is not received by Lessor within said ten (10) day
period, Lessee's right to cancel this Lease hereunder shall terminate and be of
no further force or effect.
3.2.1 Possession Tendered--Defined. Possession of the Premises
----------------------------
shall be deemed tendered to Lessee ("Tender of Possession") when (1) the
improvements to be provided by Lessor under this Lease are substantially
completed, (2) the Building utilities are ready for use in the Premises, (3)
Lessee has reasonable access to the Premises, and (4) ten (10) days shall have
expired following advance written notice to Lessee of the occurrence of the
matters described in (1), (2) and (3), above of this paragraph 3.2.1.
3.2.2 Delays Caused by Lessee. There shall be no abatement of
-----------------------
rent, and the sixty (60) day period following the Commencement Date before which
Lessee's right to cancel this Lease accrues under paragraph 3.2, shall be deemed
extended to the extent of any delays caused by acts or omissions of Lessee,
Lessee's agents, employees and contractors.
3
<PAGE>
3.3 Early Possession. If Lessee 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 Lessee
shall pay rent for such occupancy.
3.4 Uncertain Commencement. In the event commencement of the Lease
----------------------
term is defined as the completion of the improvements, Lessee and Lessor shall
execute an amendment to this Lease establishing the date of Tender of Possession
(as defined in paragraph 3.2.1) or the actual taking of possession by Lessee,
whichever first occurs, as the Commencement Date.
4. Rent.
----
4.1 Base Rent. Subject to adjustment as hereinafter provided in
---------
paragraph 4.3, and except as may be otherwise expressly provided in this Lease,
Lessee shall pay to Lessor the Base Rent for the Premises set forth in paragraph
1.6 of the Basic Lease Provisions, without offset or deduction. Lessee shall pay
Lessor upon execution hereof the advance Base Rent described in paragraph 1.6 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 Lessor at the address stated herein or to such other persons or
at such other places as Lessor may designate in writing.
4.2 Releted
4.3 Rent Increase.
-------------
4.3.1 At the times set forth in paragraph 1.7 of the Basic Lease
Provisions, the monthly Base Rent payable under paragraph 4.1 of this Lease
shall be adjusted by the increase, if any, in the Consumer Price Index of the
Bureau of Labor Statistics of the Department of Labor for All Urban Consumers,
(1967 = 100). "All Items," for the city nearest the location of the Building,
herein referred to as "C.P.I.", since the date of this Lease. However, the
increase in Base Rent shall be subject to a minimum increase of four percent
(4%) per year and shall be no more than eight percent (8%) per year.
4.3.2 The monthly Base Rent payable pursuant to paragraph 4.3.1 shall
be calculated as follows: the Base Rent payable for the first month of the term
of this Lease, as set forth in paragraph 4.1 of this Lease, shall be multiplied
by a fraction, the numerator of which shall be the C.P.I. of the calendar month
during which the adjustments is to take effect, and the denominator of which
shall be the C.P.I. for the calendar month in which the original Lease form
commences. The sum so calculated shall constitute the new monthly Base Rent
hereunder, but, in no event, shall such new monthly Base Rent be less than the
Base Rent payable for the month immediately preceding the date for the rent
adjustment.
4.3.3 In the event the compilation and/or publication of the C.P.I.
shall be transferred to any other governmental department or bureau or
[illegible copy] be discontinued, then the index most nearly the same as the
C.P.I. shall be used to make such calculations. In the event that Lessor
[illegible copy] cannot agree on such alternative index, then the matter shall
be submitted for decision to the American Arbitration Association in the
4
<PAGE>
[illegible copy] in which the Premises are located, in accordance with the then
rules of said association, and the decision of the arbitrators shall be binding
[illegible copy] the parties, notwithstanding one party failing to appear after
due notice of the proceeding. The cost of said Arbitrators shall be paid equally
by Lessor and Lessee.
4.3.4 Lessee shall continue to pay the rent at the rate previously in
effect until the increase, if any, is determined within five (5) days following
the date on which the increase is determined. Lessee shall make such payment to
Lessor as will bring the increased rental current, commencing with the effective
date of such increase through the date of any rental installments then due.
Thereafter the rental shall be paid at the increased rate.
4.3.5 At such time as the amount of any change in rental required by
this lease is known or determined, Lessor and Lessee shall execute an amendment
to this Lease setting forth such change.
5. Security Deposit. Lessee shall deposit with Lessor upon execution
----------------
hereof the security deposit set forth in paragraph 1.9 of the Basic Lease
Provisions as security for Lessee's faithful performance of Lessee's obligations
hereunder. If Lessee fails to pay rent or other charges due hereunder, or
otherwise defaults with respect to any provision of this Lease. Lessor may use,
apply or retain all or any portion of said deposit for the payment of any rent
or other charge in default for the payment of any other sum to which Lessor may
become obligated by reason of Lessee's default, or to compensate Lessor for any
loss or damage which Lessor may suffer thereby. If Lessor so uses or applies all
or any portion of said deposit, Lessee shall within ten (10) days after written
demand therefor deposit cash with Lessor in an amount sufficient to restore said
deposit to the full amount then required of Lessee. If the monthly Base Rent
shall, from time to time, increase during the term of this Lease, Lessee shall,
at the time of such increase, deposit with Lessor additional money as a security
deposit so that the total amount of the security deposit held by Lessor shall at
all times bear the same proportion to the then current Base Rent as the initial
security deposit separate from its general accounts. If Lessee performs all of
Lessee's obligations hereunder, said deposit, or so much thereof as has not
heretofore been applied by Lessor, shall be returned, without payment of
interest or other increment for its use, to Lessee (or, at Lessor's option, to
the last assignee, if any, of Lessee's interest hereunder) at the expiration of
the term hereof, and after Lessee has vacated the Premises. No trust
relationship is created herein between Lessor and Lessee 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.
6.2 Compliance with Law.
-------------------
(a) Lessor warrants to Lessee that the Premises, in the state
existing on the date that the Lease term commences, but without regard to
alterations or improvements made by Lessee or the use for which Lessee will
occupy the Premises, does not violate any covenants or restrictions of record,
or any applicable building code, regulation or
5
<PAGE>
ordinance in effect on such Lease term Commencement Date. In the event it is
determined that this warranty has been violated, then it shall be the obligation
of the Lessor, after written notice from Lessee, to promptly, at Lessor's sole
cost and expense rectify any such violation.
(b) Except as provided in paragraph 6.2(a) Lessee shall, at
Lessee'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 that term of any part of the term hereof,
relating to any manner to the Premises and the occupation and use by Lessee of
the Premises. Lessee shall conduct its business in a lawful manner and shall not
use or permit the use of the Premises of the Common Areas in any manner that
will lend to create waste or a nuisance or shall tend to disturb other occupants
of the Office Building Project.
6.3 Condition of Premises. See Addendum, paragraph 51.
---------------------
(a) Lessor warrants to Lessee that the Premises, in the state
existing on the date that the Lease term commences, but without regard to
alterations or improvements made by Lessee or the use for which Lessee will
occupy the Premises, does not violate any covenants or restrictions of records,
or any applicable building code, regulation or ordinance in effect on such Lease
term Commencement Date. In the event it is determined that this warranty has
been violated, then it shall be the obligation of the Lessor, after written
notice from Lessee, to promptly at Lessor's sole cost and expense, rectify any
such violation.
(b) Except as provided in this Lease, Lessee hereby accepts the
Premises and the Office Building Project in their condition existing as of the
Lease Commencement Date or the date that Lessee 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. Lessee acknowledges that it has satisfied itself
by its own independent investigation that the Premises are suitable for its
intended use, and that neither Lessor nor Lessor'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 Lessee's
business.
7. Maintenance, Repairs, Alterations and Common Area Services.
----------------------------------------------------------
7.1 Lessor's Obligations. Lessor shall keep the Office Building
Project, including the Premises, interior and exterior walls, 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, Lessor
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 then Building standards. Except as provided in paragraph 9.5, there
shall be no abatement of rent or liability of Lessee on account of any injury or
interference with Lessee's business with respect to any improvements,
alterations or repairs made by Lessor to the Office Building Project or any part
thereof. Lessee expressly waives the benefits of any statute
6
<PAGE>
now or hereafter in effect which would otherwise afford Lessee the right to make
repairs at Lessor's expense or to terminate this Lease because of Lessor's
failure to keep the Premises in good order, condition and repair.
7.2 Lessee's Obligations.
--------------------
(a) Notwithstanding Lessor's obligation to keep the Premises in
good condition and repair, Lessee shall be responsible for payment of the cost
thereof to Lessor 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 Lessee or the Premises, to the extent such cost is attributable to
causes beyond normal wear and tear, Lessee 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 then Building standards. Lessor may, at its option, upon reasonable
notice, elect to have Lessee perform any particular such maintenance or repairs
the cost of which is otherwise Lessee's responsibility hereunder.
(b) On the last day of the term hereof, or on any sooner
termination, Lessee shall surrender the Premises to Lessor 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
Lessee. Lessee shall repair any damage to the Premises occasioned by the
installation or removal of Lessee's trade fixtures, alterations, furnishings and
equipment. Except as otherwise stated in this Lease, Lessee shall leave the air
lines, power panels, electrical distribution systems, lighting fixtures, air
conditioning, window coverings, wall coverings, carpets, wall panelling,
ceilings and plumbing on the Premises and in good operating condition.
7.3 Alterations and Additions. Lessee shall provide Lessor a written
-------------------------
description of equipment which Lessee attaches to the Premise and which shall be
removed upon Lease expiration. Lessee shall be responsible for any repairs
necessary to walls or floor as a result of such installation and removal.
(a) Lessee shall not, without Lessor'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, Lessor 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 Lessee's expense. Should Lessor permit Lessee to make its
own alterations, improvements, additions or Utility Installations. Lessee shall
use only such contractor as has been expressly approved by Lessor, and Lessor
may require Lessee to provide Lessor, at Lessee's sole cost and expense, a lien
and completion bond in an amount equal to one and one-half times the estimated
cost of such improvements, to insure Lessor against any liability for mechanic's
and materialmen's liens and to insure completion of the work. Should Lessee make
any alterations, improvements,
7
<PAGE>
additions or Utility Installations without the prior approval of Lessor, or use
a contractor not expressly approved by Lessor, Lessor may, at any time during
the term of this Lease, require that Lessee remove any part or all of the same.
(b) Any alterations, improvements, additions or Utility
Installations in or about the Premises or the Office Building Project that
Lessee shall desire to make shall be presented to Lessor in written form, with
proposed detailed plans. If Lessor shall give its consent to Lessee's making
such alteration, improvement, addition or Utility Installation, the consent
shall be deemed conditioned upon Lessee acquiring a permit to do so from the
applicable governmental agencies, furnishing a copy thereof to Lessor prior to
the commencement of the work, and compliance by Lessee with all conditions of
said permit in a prompt and expeditious manner.
(c) Lessee shall pay, when due, all claims for labor or
materials furnished or alleged to have been furnished to or for Lessee at or for
use in the Premises which claims are or may be secured by any mechanic's or
materialmen's lien against the Premises, the Building or the Office Building
Project, or any interest therein.
(d) Lessee shall give Lessor not less than ten (10) days' notice
prior to the commencement of any work in the Premises by Lessee, and Lessor
shall have the right to post notices of non-responsibility in or on the Premises
or the Building as provided by law if Lessee shall, in good faith, contest the
validity of any such lien, claim or demand, then Lessee shall, at its sole
expense defend itself and Lessor against the same and shall pay and satisfy any
such adverse judgment that may be rendered thereon before the enforcement
thereof against the Lessor or the Premises [illegible copy] Office Building
Project, upon the condition that if Lessor shall require, Lessee shall furnish
to Lessor a surety bond satisfactory to [illegible copy] equal to such contested
lien claim or demand indemnifying Lessor against liability for the same and
holding the Premises, the Building [illegible copy] Building Project free from
the effect of such lien or claim. In addition, Lessor may require Lessee to pay
Lessor's reasonable attorneys' fees [illegible copy] in participating in such
action if Lessor shall decide it is to Lessor's best interest so to do.
(e) All alterations, improvements, additions and Utility
Installations (whether or not such Utility Installations constitute trade
fixtures of Lessee), which may be made to the Premises by Lessee, 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 Lessor
and remain upon and be surrendered with the Premises at the expiration of the
Lease term, unless Lessor requires their removal pursuant to paragraph 7.3(a).
Provided Lessee is not in default, notwithstanding the provisions of this
paragraph 7.3(e), Lessee'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 Lessee and may be removed by Lessee subject to the
provisions of paragraph 7.2.
8
<PAGE>
(f) Lessee shall provide Lessor with as-built plans and
specifications for any alterations, improvements, additions or Utility
Installations.
7.4 Utility Additions. Lessor reserves the right to install new or
-----------------
additional utility facilities throughout the Office Building Project for the
benefit of Lessor or Lessee, 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 Lessee's use of
the Premises.
8. Insurance; Indemnity.
--------------------
8.1 Liability Insurance--Lessee. Lessee shall, at Lessee'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 (GLO404), 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 Lessor and
shall insure Lessee with Lessor as an additional insured 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 Lessee
hereunder.
8.2 Liability Insurance--Lessor. Lessor 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 Lessor deems advisable from time to time, insuring Lessor, but not
Lessee, against liability arising out of the ownership, use, occupancy or
maintenance of the Office Building Project in an amount not less than
$5,000,000.00 per occurrence.
8.3 Property Insurance--Lessee. Lessee shall, at Lessee's expense,
--------------------------
obtain and keep in force during the term of this Lease for the benefit of
Lessee, replacement cost fire and extended coverage insurance, with vandalism
and malicious mischief, 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 Lessee's personal property, fixtures, equipment and
tenant improvements.
8.4 Property Insurance--Lessor. Lessor 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 Lessee's personal
property, fixtures, equipment or tenant improvements, in the amount of the full
replacement cost thereof, as the same may exist from time to time, utilizing
Insurance Services Office standard form, or equivalent, providing protection
against all perils included within the classification of fire, extended
coverage, vandalism, malicious mischief, plate glass, and such other perils as
Lessor deems advisable or may be required by a lender having a lien on the
Office Building Project. In addition, Lessor 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 Lessor, which insurance shall also
cover all Operating Expenses for said period. Lessee will not be named in any
such policies carried by Lessor and shall have no right to any proceeds
therefrom. The policies required by these
9
<PAGE>
paragraphs 8.2 and 8.4 shall contain such deductibles as Lessor 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. Lessee shall
not do or permit to be done anything which shall invalidate the insurance
policies carried by Lessor. Lessee 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 Lessor's insurance carrier as being caused by the nature of
Lessee's occupancy or any act or omission of Lessee.
8.5 Insurance Policies. Lessee shall deliver to Lessor copies of
------------------
liability insurance policies required under paragraph 8.1 or certificates
evidencing the existence and amounts of such insurance within seven (7) days
after the Commencement Date of this Lease. No such policy shall be cancellable
or subject to reduction of coverage or other modification except after thirty
(30) days prior written notice to Lessor. Lessee shall, at least thirty (30)
days prior to the expiration of such policies, furnish Lessor with renewals
thereof.
8.6 Waiver of Subrogation. Lessee and Lessor 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 Lessor or Lessee or their agents, employees, contractors and/or
invitees. If necessary all property insurance policies required under this Lease
shall be endorsed to so provide.
8.7 Indemnity. Lessee shall indemnify and hold harmless Lessor and
---------
its agents, Lessor'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 Lessee's use of the Office Building Project, or from the
conduct of Lessee's business or from any activity, work or things done,
permitted or suffered by Lessee in or about the Premises or elsewhere and shall
further indemnify and hold harmless Lessor from and against any and all claims,
costs and expenses arising from any breach or default in the performance of any
obligation on Lessee's part to be performed under the terms of this Lease, or
arising from any act or omission of Lessee, or any Lessee's agents, contractors,
employees or invitees, and from and against all costs, attorney's fees, expenses
and liabilities incurred by Lessor 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 Lessor by
reason of any such matter, Lessee upon notice from Lessor shall defend the same
at Lessee's expense by counsel reasonably satisfactory to Lessor and Lessor
shall cooperate with Lessee in such defense. Lessor need not have first paid
any such claim in order to be so indemnified. Lessee, as a material part of the
consideration to Lessor, hereby assumes all risk of damage to property of Lessee
or injury to persons, in, upon or about the Office Building Project arising from
any cause and Lessee hereby waives all claims in respect thereof against Lessor.
8.8 Exemption of Lessor from Liability. Lessee hereby agrees that
----------------------------------
Lessor shall not be liable for injury to Lessee's business or any loss of income
herefrom or for loss of or damage to the goods, wares, merchandise or other
property of Lessee. Lessee's
10
<PAGE>
employees, invitees, customers, or any other person in or about the Premises or
the Office Building Project, nor shall Lessor be liable for injury to the person
of Lessee, Lessee's employees, agents or contractors, whether such damages 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 appurtenances applicable thereto, and regardless of
whether the cause of such damage or injury or the means of repairing the same is
inaccessible, Lessor 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 Lessor to enforce the provisions of any other lease of
any other lessee of the Office Building Project.
8.9 No Representation of Adequate Coverage. Lessor makes no
--------------------------------------
representation that the limits or forms of coverage of insurance specified in
this paragraph 8 are adequate to cover Lessee's property or obligations under
this Lease.
9. Damage or Destruction.
---------------------
9.1 Definitions.
-----------
(a) "Premises Damage" shall mean if the Premises are damaged or
destroyed to any extent.
(b) "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.
(c) "Premises Building Total Destruction" shall mean if the
Building of which the Premises are a part is damaged or destroyed to the extent
[illegible copy] the cost to repair is fifty percent (50%) or more of the then
Replacement Cost of the Building.
(d) "Office Building Project Buildings" shall mean all of the
buildings on the Office Building Project site.
(e) "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.
(f) "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.
(g) "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
11
<PAGE>
immediately prior to the damage occurring, excluding all improvements made by
lessees, other than those installed by Lessor at Lessee's expense.
9.2 Premises Damage, Premises Building Partial Damage.
-------------------------------------------------
(a) 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 Lessor shall, as soon as
reasonably possible and to the extent the required materials and labor are
readily available through usual commercial channels at Lessor's expense, repair
such damage (but not Lessee's fixtures, equipment or tenant improvements
originally paid for by Lessee) to its condition existing at the time of the
damage and this Lease shall continue in full force and effect.
(b) 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 Lessee (in which event Lessee shall make the repairs at Lessee's expense),
which damage prevents Lessee from making any substantial use of the Premises.
Lessor may at Lessor's option either (i) repair such damage as soon as
reasonably possible at Lessor's expense, in which event this Lease shall
continue in full force and effect, or (ii) give written notice to Lessee within
thirty (30) days after the date of the occurrence of such damage of Lessor's
intention to cancel and terminate this Lease 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 Lessor may at Lessor's option either (i) repair such damage or destruction
as soon as reasonably possible at Lessor'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 Lessee's fixtures,
equipment or tenant improvements, and this Lease shall continue in full force
and effect, or (ii) give written notice to Lessee within thirty (30) days after
the date of occurrence of such damage of Lessor'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.
-----------------------
(a) Subject to paragraph 9.4(b), if at any time during the last
twelve (12) months of the term of this Lease there is substantial damage to the
Premises, Lessor may at Lessor's option cancel and terminate this Lease as of
the date of occurrence of such damage by giving written notice to Lessee of
Lessor's election to do so within 30 days after the date of occurrence of such
damage.
12
<PAGE>
(b) Notwithstanding paragraph 9.4(a), in the event that Lessee
has an option to extend or renew this Lease, and the time within which said
option may be exercised has not yet expired, Lessee shall exercise such option,
if it is to be exercised at all, 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 Lessee
duly exercises such option during said twenty (20) day period, Lessor shall, at
Lessor's expense, repair such damage, but not Lessee's fixtures, equipment or
tenant improvements, as soon as reasonably possible and this Lease shall
continue in full force and effect. If Lessee fails to exercise such option
during said twenty (20) day period, then Lessor may at Lessor's option terminate
and cancel this Lease as of the expiration of said twenty (20) day period by
giving written notice to Lessee of Lessor'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; Lessee's Remedies.
------------------------------------
(a) In the event Lessor 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 Lessee'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 Lessee, and (2) such abatement shall only be to the
extent the operating and profitability of Lessee's business as operated from the
Premises is adversely affected. Except for said abatement of rent, if any,
Lessee shall have no claim against Lessor for any damage suffered by reason of
any such damage, destruction, repair or restoration.
(b) If Lessor shall be obligated to repair or restore the
Premises 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 Lessor shall not complete the restoration and repair within
six (6) months after such occurrence. Lessee may at Lessee's option cancel and
terminate this Lease by giving Lessor written notice of Lessee's election to do
so at any time prior to the commencement or completion, respectively, of such
repair or restoration. In such event this Lease shall terminate as of the date
of such notice.
(c) Lessee agrees to cooperate with Lessor 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 Lessee to Lessor. Lessor shall, in
addition, return to Lessee so much of Lessee's security deposit as has not
theretofore been applied by Lessor.
9.7 Waiver. Lessor and Lessee 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.
13
<PAGE>
10. Real Property Taxes.
-------------------
10.1 Payment of Taxes. Lessor shall pay the real property tax, as
----------------
defined in paragraph 10.3, applicable to the Office Building Project.
10.2 Additional Improvements. Lessee shall not be responsible for
-----------------------
paying any increase in real property tax 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 Lessor for the exclusive
enjoyment of any other lessee. Lessee shall, however, pay to Lessor at the time
that Operating Expenses are payable under paragraph 4.2(c) the entirety of any
increase in real property tax if assessed solely by reason of additional
improvements placed upon the Premises by Lessee or at Lessee's request.
10.3 Definition of "Real Property Tax." As used herein, the term
--------------------------------
"real property tax" 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,
agriculture, sanitary, fire, street, drainage or other improvement district
thereof, as against any legal or equitable interest of Llessor in the Office
Building Project or in any portion thereof, as against Lessor's right to rent or
other income therefrom, and as against Lessor's business of leasing the Office
Building Project. The term "real property tax" shall also include any tax,