Exhibit 10.16
TEMPORARY USE LICENSE AGREEMENT
This License Agreement is executed on March 30, 2000, by and between CB Graham
International, Inc., a Delaware corporation (the "Licensor") and kinzan.com, a
California corporation (the "Licensee").
1. GRANT OF LICENSE.
A. Licensor hereby allows Licensee to use the premises located at
2111 Palomar Airport Road, Suite 140, consisting of 2319
rentable square feet (the "Premises"), on the terms set forth
herein. The Premises are depicted on Exhibit "A" attached
hereto. As consideration for use of the Premises, Licensee
shall pay to Licensor, in advance and without offset a license
fee in the amount of $6,493.20 per month. In the event
Licensee holds over past the expiration or termination hereof,
Licensee shall pay to Licensor $271.00 per day of such
holdover period.
B. Licensee shall use the Premises only for the following
purpose: Offices for Internet company.
C. Licensee and its guests and visitors shall not use more than
nine parking spaces at the Building at any one time.
D. The base fee above includes Licensee's portion of common area
operating expenses and taxes.
E. Should Licensee be approved for and receive a fully executed
Lease of three years or longer from the Landlord for a
Premises that totals at least 8,000 rentable square feet at
Carlsbad Executive Plaza, Licensee shall be refunded $1.50 per
square foot per month ($3,478.50 per month) of the fee paid
for any term of the License Agreement after September 30,
2000. The refund shall be applied to the base rent of the
second month and thereafter for the new Lease between
kinzan.com and the Landlord of Carlsbad Executive Plaza.
F. Licensee shall pay for signage costs.
2. TERM.
The term of this License Agreement shall have commenced on December 15,
1999 and terminate on September 30, 2000; provided however, Licensor or
Licensee may terminate this License Agreement earlier upon at least
forty-five (45) days written notice for any reason. Licensee previously
paid rent as a sublessee of iXL. The amount paid for December 15, 1999
through April 1, 2000 under the sublease shall be transferred to this
License. The balance due for the unpaid portion of the License is
$9,399.68 and shall be paid to Licensor on or before April 9, 2000.
3. DEPOSIT.
Upon execution hereof, Licensee shall deposit with Licensor the sum of
$6,700 as security for the full performance of all the provisions of
this License Agreement. Licensor has previously received $5,509.29
toward deposit and the balance of $1,190.71 is due April 9, 2000.
Licensor may, without waiver of default or other remedies, use all or
part of the Deposit to clean the Premises, to repair damage to the
Premises, or to compensate Licensor for default by Licensee hereunder.
The deposit may be kept with Licensor's other funds and shall not bear
interest.
4. USE OF PREMISES.
4.1 The Premises shall be used only for the purposes specified
above and for no other purpose. Licensee shall comply with all
legal requirements affecting the Premises and its use.
Licensee shall not (a) do or permit anything to be done, nor
bring or keep anything in or around the Premises, that will
increase the risk of fire or other loss (including by way of
example, bring flammables or explosives into the Premises or
bringing fuel-powered machinery into the Premises), (b) do or
permit anything to be done which may be a nuisance to tenants,
(c) store anything outside of the Building, (d) place any
signs on or around the Building, nor (e) commit or suffer any
waste upon or about the Premises.
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4.2 Licensee shall not, and shall not direct, suffer or permit any
of its agents, contractors, employees, licensees or invitees
to at any time handle, use, manufacture, store or dispose of
in or about the Premises or the Building any (collectively
"Hazardous Materials") flammables, explosives, radioactive
materials, hazardous wastes or materials, toxic wastes or
materials, or other similar substances, petroleum products or
derivatives or any substance subject to regulation by or under
any federal, state and local laws, regulations and ordinances
relating to the protection of the environment or the keeping,
use or disposition of environmentally hazardous materials,
substances, or wastes (collectively "Environmental Laws").
Licensee shall protect, defend, indemnify and hold each and
all of Licensor's, Licensor's investment manager, and the
trustees, board of directors, officers, general partners,
beneficiaries, stockholders, employees and agents of each of
them harmless from and against any and all loss, claims,
liability or costs (including court costs and attorney's fees)
incurred by reason of any actual or asserted failure of Lessee
to fully comply with all applicable Environmental Laws, or the
presence, handling, use or disposition in or from the Premises
of any Hazardous Materials, or by reason of any actual or
asserted failure of Licensee to keep, observe, or perform any
provision of this paragraph. Licensor represents to Licensee
that to the best of Licensor's knowledge, the Premises are
free of Hazardous Materials prior to occupancy by Licensee.
4.3 Licensee is responsible for all of its agents and visitors and
shall ensure that they do not do anything, which Licensee is
not allowed to do. Licensee shall faithfully observe and
comply with all the rules and regulations, which Licensor may
promulgate from, time to time regarding the use of the common
areas of the Building.
5. UTILITIES.
The license fee set forth in Article 1 shall not include the cost of
utilities. Licensee shall be responsible for the cost of all utility
service for the Premises.
6. ACCEPTANCE OF PREMISES.
By entry hereunder, Licensee acknowledges that it has examined the
Premises and accepts the same "AS IS" and as being entirely
satisfactory. Licensor has no obligation to alter the Premises.
7. ALTERATIONS, REPAIRS AND MAINTENANCE.
Licensee agrees not to make or permit any alterations to the Premises.
Licensee shall maintain the Premises in its present condition and shall
keep the same neat, clean and orderly. Licensee shall repair any damage
it causes, or in lieu of requiring repairs, Licensor shall have the
right to perform such repairs itself, in which case all repair costs
shall be payable by Licensee upon request. Upon termination of this
License Agreement, Licensee shall deliver the Premises to Licensor in
the same condition as it existing upon commencement of this Agreement.
8. INDEMNITY AND RELEASE; INSURANCE.
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8.1 Licensee shall defend, indemnify and hold harmless Licensor
and its property manager and other agents (the "Protected
Parties") from and against any and all claims (and all related
liabilities, costs, and attorneys' fees, collectively
"Damages") arising from (a) Licensee's use of the Premises or
anything done, permitted, suffered or omitted by Licensee or
any of its agents or visitors in or about the Premises, and/or
(b) any breach or default by Licensee hereunder, unless such
Damages are due to Licensor's gross negligence or willful
misconduct. As a material part of the consideration to
Licensor, Licensee hereby assumes all risk of damage to
property or injury to persons in or about the Premises from
any cause whatsoever and waives all claims against Licensor
and/or the other Protected Parties on account of the same.
8.2. During the term hereof, Licensee shall maintain in full force
and effect Comprehensive General Liability on an occurrence
basis with a minimum limit of $2,000,000 combined single
limit, naming Licensor and the other Protected Parties as
named insureds. Such insurance shall insure Licensee's
indemnity obligations herein. In addition, Licensee shall
insure all of its personal property at 100% of its full
replacement value. All insurance shall contain a complete
waiver of subrogation in favor of Licensor and the other
Protected Parties. Except for insurance relating to personal
property owned by Comdisco. A certificate of all such
insurance (including a prohibition against change or
cancellation of coverage without 30 days prior notice to
Licensor) shall be delivered to Licensor prior to Licensee
entering the Premises. Any insurance maintained by Licensor
will apply in excess of, and not contribute with, insurance
provided by Licensor.
9. ENTRY BY LICENSOR.
Licensor and its agents shall have the right to enter the Premises for
any business purpose, including to inspect the same or to make repairs
or alterations to the Building or the Premises and to show the space to
prospective tenants. Licensee shall not alter any lock or install a new
or additional lock on any door of the Premises without the prior
written consent of the Licensor.
10. ASSIGNMENT AND SUBLICENSE.
Licensee shall not (a) assign this License Agreement or any interest in
this License Agreement, (b) permit the use of the Premises by any
person or persons other than Licensee, nor (c) sublicense all or any
part of the Premises.
11. DEFAULT BY LICENSEE.
Time is of the essence hereof. Licensee shall be in default if Licensee
fails to perform any obligation hereunder as and when due. In the event
of such a default, Licensor shall have all rights and remedies allowed
by law. In addition, Licensor shall have the right to terminate this
License Agreement and/or Licensee's right to use the Premises. Upon any
such termination, Licensee shall immediately yield up possession of the
Premises and Licensor may take any and all action, including changing
the locks on the Premises and removing all of Licensee's possessions
from the Premises, to enforce Licensee's obligations.
12. ATTORNEY'S FEES.
In the event of litigation to enforce or to interpret this License
Agreement, the prevailing party shall be entitled to recover, in
addition to all other sums and relief, its reasonable costs and
attorneys fees incurred at and in preparation for arbitration, trial,
appeal and/or review, including costs and attorneys fees in federal
bankruptcy proceedings.
13. NOTICES.
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All notices to Licensee shall be in writing and shall be sufficiently
given if delivered to the Premises to the attention of "General
Counsel" or if sent by certified mail to the Premises to the attention
of "General Counsel" or to the address (if any) shown at the end of
this License Agreement.
14. INTERPRETATION.
14.1 This License Agreement shall be governed by the law of the
state where the Building is located. This License Agreement
contains the entire agreement of the parties. This License
Agreement can be amended, or any right or provision waived,
only by written document signed by both parties.
14.2 All obligations, liabilities, indemnities, waivers and
releases of Licensee hereunder, as well as the attorneys' fees
provision hereof, shall survive the expiration or termination
of this License Agreement and/or of Licensee's right to use
the Premises.
15. LIMITATION AND LIABILITY.
Redress for any claim against Licensor under this License Agreement
shall be limited to and enforceable only against and to the extent of
Licensor's interest in the Building. The obligations of Licensor under
this License Agreement are not intended to and shall not be personally
binding on, nor shall any resort be had to the private properties of,
any of its trustees or board of directors and officers, as the case may
be, its investment manager, the general partners thereof, or any
beneficiaries, stockholders, employees, or agents of Licensor or the
investment manager.
IN WITNESS WHEREOF, Licensor and Licensee have executed this License
Agreement as of the date first written above. Individuals signing on behalf of a
principal warrant that they have the authority to bind their principal. This
License Agreement is subject to acceptance by Licensor.
LICENSOR: LICENSEE:
CB GRAHAM INTERNATIONAL, INC., KINZAN.COM,
a Delaware corporation a California corporation
BY: RREEF Management Company,
a Delaware corporation
BY: /s/ Jill E. Shanahan BY: /s/ Gari L. Cheever
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Jill E. Shanahan
TITLE: Vice President TITLE: President & CEO
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DATE: DATE:
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EXHIBIT A
to Temporary Use License Agreement
dated March 30, 2000, between CB Graham International, Inc.
a Delaware corporation ("Licensor") and kinzan.com, a
California corporation ("Licensee") for Premises known as
2111 Palomar Airport Road, Suite 140, Carlsbad, CA 92009
PREMISES
Exhibit A is intended only to show the general layout of the Premises as of the
beginning of the Term of this Temporary Use License Agreement. It does not in
any way supersede any of Licensor's rights with respect to arrangements and/or
locations of public parts of the Building and changes in such arrangements
and/or locations. It is not to be scaled; any measurements or distances shown
should be taken as approximate.
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2111 Palomar Airport Road, Suite 140
Carlsbad, CA 92009-1426
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