SUBLEASE
BY AND BETWEEN
iXL-SAN DIEGO, INC.,
A DELAWARE CORPORATION,
SUBLESSOR
AND
KINZAN.COM,
SUBTENANT
WHEREAS, the parties are agreeable to entering into a sublease of
the Premises on the terms and conditions set forth below; and
WHEREAS, unless otherwise defined in this Sublease, all capitalized
terms used herein have the meanings set out for them in the Main Lease.
AGREEMENT
NOW, THEREFORE, for and in consideration of the mutual promises set
forth herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Sublessor and Subtenant hereby
agree as follows;
1. INCORPORATION OF RECITALS. The foregoing recitals are
incorporated into and made a part of this Sublease as if each were
specifically recited herein.
2. DEMISE AND TERM. Sublessor hereby subleases the Premises to
Subtenant, and Subtenant hereby hires and accepts the Premises from
Sublessor. The Premises shall include the appurtenant right to the use, in
common with others, of the lobbies, entrances, stairs, corridors, elevators
and other public portions of the building containing the Premises (the
"Building"), to the extent that Sublessor has the right to use the same as
Tenant under the Main Lease. The term of this Sublease (the "Term") shall
commence with respect to Suite 250 on the commencement date established in
the First Amendment for Suite 250 (the "Suite 250 Commencement Date") and the
Term shall commence with respect to Suite 260 on the commencement date
established in the First Amendment for Suite 260 (the "Suite 260 Commencement
Date"). The Term shall end on August 31, 2003 (the "Expiration Date"), unless
sooner terminated as herein provided. Sublessee shall have no option to renew
or extend the term of this Sublease or to expand the Premises, except as
specifically provided in Section 9(e) hereof.
3. SUBORDINATE TO MAIN LEASE. This Sublease is and shall be
subject and subordinate to the Main Lease. A copy of the Main Lease (from
which certain economic terms have been excised) is attached hereto as EXHIBIT
A and made a part hereof.
4. COMPLIANCE WITH MAIN LEASE.
(a) Except as set forth in the immediately succeeding
sentence, the terms, covenants and conditions of the Main Lease (the
"Incorporated Provisions") are incorporated herein by reference.
Section 3.1 and 38 and EXHIBIT B of the Original Lease and
Sections D, E and H of the First Amendment are specifically excluded
from the Incorporated Provisions, and Sections J and K are
specifically included for the benefit of Subtenant although the
terms of Section K shall be equally for Sublessor's benefit. Except
to the extent that the Incorporated Provisions are inapplicable or
are modified by the provisions of this Sublease, the Incorporated
Provisions binding or inuring to the benefit of the landlord
thereunder shall, in respect of this Sublease, bind or inure to the
benefit of Sublessor, and the Incorporated Provisions, binding or
inuring to the benefit of the tenant thereunder shall, in respect
of this Sublease, bind or inure to the benefit of Subtenant, with
the same force and effect as if such Incorporated Provisions were.
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SUBLEASE
THIS SUBLEASE ("Sublease") is made and dated as of the 5th day of
April 1999, by and between iXL-San Diego, Inc., a Delaware corporation,
having an address of 2121 Palomar Airport Road, Suite 200, Carlsbad,
California 92009 ("Sublessor") and Kinzan.com, a California corporation,
having an address of 2111 Palomar Airport Road, Suite 250, Carlsbad,
California 92009 ("Subtenant").
WITNESSETH:
WHEREAS, Sublessor is tenant under that certain lease dated July 7,
1998 (the "Original Lease") with CB Graham International, Inc.
("Overlandlord") as landlord, whereby Overlandlord leased to Sublessor
approximately 7,280 rentable square feet of office space (the "Original
Space") located on the second floor of the building located at 2121 Palomar
Airport Road (the "Original Building");
WHEREAS, Sublessor and Subtenant have entered into a Services
Agreement dated January 29, 1999 under which Sublessor will provide services
to Subtenant ("Services Agreement"), Sublessor is an investor in Subtenant
and Subtenant is an iXL venture, Subtenant is desirous of leasing space in
the complex of which the Original Building is a part, Subtenant has requested
that Sublessor assist Subtenant in leasing such space, and Sublessor has
agreed to accommodate Subtenant's request and to sublet space to Subtenant in
conjunction with the Services Agreement (provided, however, that this
Sublease is an additional obligation of and agreement between the parties
hereto, the Services Agreement is referenced herein ONLY because the Services
Agreement requires a reference be made thereto in each agreement which
requires Subtenant to make payment(s) to Sublessor and this Sublease is not
otherwise subject to or affected by the Services Agreement in any way); and
WHEREAS, as a result of the foregoing Sublessor and Overlandlord
have entered that certain First Amendment to Lease dated as of March 19 1999
(the "First Amendment") pursuant to which the Original Space has been
expanded to include approximately 3,537 rentable square feet of office space,
shown more particularly on EXHIBIT B attached hereto and composed of that
portion designated as Suite 250 on EXHIBIT B (approximately 2,980 rentable
square feet) ("Suite 250") and that portion designated as Suite 260 on
EXHIBIT B (approximately 557 rentable square feet) ("Suite 260") (Suite 250
and Suite 260 being hereafter collectively referred to as the "Premises") and
Overlandlord has granted Sublessor a Right of First Offer on contiguous space
("Suite 270") for the benefit of Subtenant if Subtenant desires to expand the
Premises (subject to the terms and conditions hereinafter set forth); and
WHEREAS, the Original Lease, as amended by the First Amendment is
hereinafter referred to as the Main Lease.
WHEREAS, Sublessor desires to sublet the Premises to Subtenant, and
Subtenant desires to sublet the Premises from Sublessor;
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completely set forth in this Sublease, and as if the words
"Landlord" and "Tenant" or words of similar import, wherever the
same appear in the Incorporated Provisions, were construed to mean,
respectively, "Sublessor" and "Subtenant" in this Sublease, and as
if the words "Premises," or words of similar import, wherever the
same appear in the Incorporated Provisions, were construed to mean
"Premises" in this Sublease, and as if the word "Lease," or words
of similar import, wherever the same appear in the Incorporated
Provisions, were construed to mean this "Sublease."
(b) The time limits contained in the Main Lease for the
giving of notices, making of demands or performing of any act,
condition or covenant on the part of the tenant thereunder, or
for the exercise by the tenant thereunder of any right, remedy
or option, are changed for the purposes of incorporation herein by
reference by shortening the same in each instance by 5 days, so
that in each instance Subtenant shall have 5 days less time to
observe or perform hereunder than Sublessor has as the tenant under
the Main Lease, except that:
(i) any such time limits which are 7 days or less
shall instead be shortened in each instance by 3 business days,
and
(ii) any such time limits which are 3 days or less
shall instead be shortened in each instance so that such time
limits shall expire 1 business day prior to the expiration of
such time limits under the Main Lease.
(c) If any of the express provisions of this Sublease shall
conflict with any of the Incorporated Provisions, such conflict
shall be resolved in every instance in favor of the express
provisions of this Sublease. If Subtenant receives any notice or
demand from Overlandlord under the Main Lease, Subtenant shall
deliver a copy thereof to Sublessor by overnight courier the next
business day or as soon thereafter as is reasonably possible but
in no event later than two business days after Subtenant's receipt
of such notice. If Sublessor receives any notice of default from
Overlandlord under the Main Lease, Sublessor shall deliver a copy
thereof to Subtenant by overnight courier the next business day or
as soon thereafter as is reasonably possible but in no event later
than two business days after Sublessor's receipt of such notice.
5. PERFORMANCE BY SUBLESSOR. Sublessor shall not be required to
furnish, supply or install anything required under any article of the Main
Lease. Sublessor shall have no liability or responsibility whatsoever for
Overlandlord's failure or refusal to perform under the Incorporated
Provisions. Subtenant shall have the right to instruct Overlandlord with
respect to the performance by Overlandlord of Overlandlord's obligations as
landlord under the Main Lease. Upon Sublessor's receipt of a written notice
from Subtenant that Sublessor has failed to perform an obligation under the
Incorporated Provisions, (because of a failure of Overlandlord to perform its
obligation under the Main Lease) then Sublessor may, at its sole and
exclusive option either (a) use its reasonable efforts to cause Overlandlord
to observe and perform the same, provided, however, that Sublessor does not
guarantee Overlandlord's compliance with the Incorporated Provisions, or (b)
direct Subtenant to pursue its claim directly against Overlandlord which
shall be done at Subtenant's sole cost and expense. Subtenant shall not in
any event have any rights in
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respect of the Premises greater than Sublessor's rights under the Main Lease.
Notwithstanding any provision to the contrary contained herein, as to
Incorporated Provisions, Sublessor shall not be required to make any payment
or perform any obligation, and Sublessor shall have no liability to Subtenant
for any matter whatsoever, except for (i) Sublessor's obligation to pay the
rent due under the Main Lease, and (ii) Sublessor's obligation to use
reasonable efforts, upon the written request of Subtenant, to cause
Overlandlord to observe and/or perform its obligations under the Main Lease
(or, in the alternative, to direct Subtenant to pursue its claim against
Overlandlord). Sublessor shall not be responsible for any failure or
interruption, for any reason whatsoever, of the services or facilities that
may be appurtenant to or supplied at the Building, by Overlandlord or
otherwise, including, without limitation, heat, air conditioning, water,
elevator service and cleaning service, if any; and no failure to furnish, or
interruption of, any such services or facilities shall give rise to any: (i)
abatement, diminution or reduction of Subtenant's obligations under this
Sublease; (ii) constructive eviction, whether in whole or in part; or (iii)
liability on the part of Sublessor.
6. NO BREACH OF MAIN LEASE. Subtenant shall not do or permit to be
done any act or thing which may constitute a breach or violation of any term,
covenant or condition of the Main Lease.
7. NO PRIVITY OF ESTATE. Nothing contained in this Sublease shall be
construed to create privity of estate or privity of contract between
Subtenant and Overlandlord.
8. INDEMNITY. Subtenant hereby does and shall indemnify, defend and
hold harmless Sublessor from and against all losses, costs, damages, expenses
and liabilities, including, without limitation, reasonable attorneys' fees,
which Sublessor may incur or pay by reason of: (i) Subtenant's use, occupancy
or management of the Premises; (ii) any accidents, damages or injuries to
persons or property occurring in, on or about the Premises; (iii) any breach
or default hereunder on Subtenant's part; (iv) any work done by or on behalf
of Subtenant in or to the Premises, or (v) any act, omission or negligence
occurring in, on or about the Premises on the part of Subtenant and/or its
officers, employees, agents, customers, invitees or any person claiming
through or under Subtenant.
9. RENT.
(a) Subtenant shall pay to Sublessor base rent (the "Base Rent")
in accordance with the following Base Rent Table.
Base Rent Table***
------------------
Base Rent Period Monthly Base Rent Monthly Base Rent/Square Feet
---------------- ----------------- -----------------------------
*Commencement Date - 6/30/99 $5,840.80 $1.96
**7/1/99 - 3/31/00 $6,932.52 $1.96
4/1/00 - 3/31/01 $7,209.81 $2.04
4/1/01 - 3/31/02 $7,498.19 $2.12
4/1/02 - 3/31/03 $7,798.11 $2.20
4/1/03 - 8/31/03 $8,110.03 $2.29
*Monthly rent for April 1999 to be prorated based upon possession
and rent commencement date of Suite 250 in accordance with the Main
Lease.
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**Monthly rent for July 1999 to be prorated based upon possession
and rent commencement date of Suite 260 in accordance with the Main
Lease.
***In addition to the amounts set forth in the Base Rent Table,
monthly base rent during the Term shall also include a fee of
$125.00 per month to defray Sublessor's administrative expenses.
(b) Subtenant shall pay the Monthly Base Rent to Sublessor in
advance of the first day of each month during the Term at the offices of
Sublessor identified at the beginning of this Sublease or elsewhere as
Sublessor shall direct. In addition to the Monthly Base Rent, Subtenant shall
also pay to Sublessor any and all other amounts payable by Sublessor to
Overlandlord with respect to the Premises under the Main Lease including,
without limitation, the electricity charges and other operating expenses due
under the Main Lease (the "Additional Charges") on or before the day such
Additional Charges are to be paid under the Main Lease.
(c) "Rent" (which term shall include the Base Rent and any
Additional Charges) shall be paid promptly when due, without notice or demand
therefor and without deduction, abatement, counterclaim or setoff of any
amount for any reason whatsoever. Base Rent and Additional Charges shall be
paid to Sublessor by good unendorsed check of Subtenant at the address of
Sublessor set forth at the beginning of this Sublease or to such other person
and/or at such other address as Sublessor may from time to time designate by
notice to Subtenant. No payment by Subtenant or receipt by Sublessor of any
lesser amount than the amount stipulated to be paid hereunder shall be deemed
other than on account of the earliest stipulated Base Rent or Additional
Charges due under this Sublease; nor shall any endorsement or statement on
any check or letter be deemed an accord and satisfaction, and Sublessor may
accept any check or payment without prejudice to Sublessor's right to recover
the balance due or to pursue any other remedy available to Sublessor.
(d) Upon the execution of (i) this Sublease by both Sublessor and
Subtenant and (ii) consent to this Sublease by Overlandlord as provided
herein, Subtenant may take possession of the Premises. Subtenant hereby
agrees that if Subtenant takes possession of any portion of the Premises
prior to the Suite 250 Commencement Date, then from and after the date
Subtenant takes possession of the Premises (the "Possession Date"), all of
Subtenant's obligations and duties under this Sublease shall be effective
except that respective base and additional rent obligations for Suites 250
and 260 shall not commence until such obligations commence under the Main
Lease. Notwithstanding anything in this Sublease to the contrary, Subtenant
shall pay all charges incurred by Subtenant (including but not limited to
fees, if any, charged by Overlandlord) in connection with Subtenant's
relocation to the Premises, the installation of all equipment and utility
services for the Premises which are required by Subtenant, including, but not
limited to, telephones, computers, and additional electric service.
(e) In the event Subtenant desires to exercise the Right of First
Offer in Section J of the First Amendment as to Suite 270, Suite 270 shall be
deemed included under the Sublease and the Base Rent, Additional Charges and
Security Deposit shall be increased to reflect the increase in the size of
the Premises resulting from the inclusion of
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Suite 270. Notwithstanding any provision to the contrary contained
in this Sublease, Subtenant shall not be entitled to exercise the
Right of First Offer if Subtenant is in default under this Sublease
beyond applicable notice and cure periods. Provided Subtenant is
not in uncured default hereunder, Sublessor agrees to cooperate with
Subtenant (at no cost or expense to Sublessor) in order to
facilitate Subtenant's exercise of the Right of First Offer, but
Subtenant acknowledges and agrees that Sublessor has no independent
obligation to honor the Right of First Offer and that the Right of
First Offer will be available to Subtenant only to the extent the
rights are available to Sublessor under the Main Lease.
10. CONDITION OF PREMISES. Sublessor shall deliver the Premises to
Subtenant on the Commencement Date in "as is/where is" condition. Sublessor
shall have no obligations under this Sublease or otherwise to perform any
work, alterations, installations or to remove any asbestos or asbestos
containing material or other hazardous material or substances (collectively,
"ACM"), if any, from the Premises or elsewhere. Sublessor makes no
representations or warranties whatsoever with respect to the presence of ACM
in the Premises or Building, or the Building and/or Premises' compliance with
applicable laws (including environmental laws). In making and executing this
Sublease, Subtenant has relied solely on such investigations, examinations
and inspections as Subtenant has chosen to make. Subtenant acknowledges that
Sublessor has afforded Subtenant the opportunity for full and complete
investigations, examinations, and inspections of the Premises. Subtenant
shall not make any alterations or improvements in the Premises, without
Sublessor's prior written consent, which shall not be unreasonably withheld
or delayed provided Overlandlord has consented to same and Subtenant has
otherwise complied with the requirements of the Main Lease. Subtenant's use,
occupancy, repair, maintenance and improvement of the Premises shall be in
full compliance with applicable laws.
11. CONSENTS AND APPROVALS. In any instance when Sublessor's
consent or approval is required under this Sublease, Sublessor's refusal to
consent to or approve any matter or thing shall be deemed reasonable and in
good faith if such consent or approval has not been obtained from
Overlandlord; provided however, Sublessor covenants to use reasonable
efforts, at the sole cost and expense of Subtenant (including, without
limitation, reasonable attorneys' fees and expenses), to obtain the consent
or approval of Overlandlord and will indicate to Overlandlord in those cases
where its approval is conditioned upon Overlandlord's approval that it has no
objection thereto and agrees that if such consent of Overlandlord shall not
be required, Sublessor shall not unreasonably withhold or delay its consent
to such matter. In the event that Subtenant shall seek the approval by or
consent of Sublessor and Sublessor shall fail or refuse to give such consent
or approval, Subtenant shall not be entitled to any damages from Sublessor
for any withholding or delay of such approval or consent by Sublessor.
12. NOTICE. All notices, consents, approvals, demands and requests
which are required or desired to be given by either party to the other
hereunder shall be in writing and shall be personally delivered, sent by
telefax or by reputable overnight courier delivery service or sent by United
States registered or certified mail and deposited in a United States post
office, return receipt requested and postage prepaid. Notices, consents,
approvals, demands and requests which are served upon Sublessor or Subtenant
in the manner provided herein shall be deemed to
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have been given or served for all purposes hereunder on the day personally
delivered or refused, the next business day after sending by overnight
courier as aforesaid or on the third business day after mailing as aforesaid.
All notices, consents, approvals, demands, and requests given to Sublessor or
Subtenant shall be addressed to the address set forth at the beginning of
this Sublease with notices to Sublessor being addressed to the attention of
Dee Warren, Controller, with a copy at the same time and in the same manner
to iXL-Holdings, Inc., 1888 Emery Street N.W., Atlanta, Georgia 20218,
Attention: T. William Alvey, III, Assistant General Counsel. Either party may
from time to time change the names and/or addresses to which notices,
consents, approvals, demands and requests shall be addressed by a notice
given in accordance with the provisions of this Paragraph.
13. TERMINATION OF MAIN LEASE. If for any reason the term of the
Main Lease shall terminate prior to the Expiration Date, this Sublease shall
thereupon be terminated and Sublessor shall not be liable to Subtenant by
reason thereof unless both (a) Subtenant shall not then be in default
hereunder, and (b) said termination shall have been effected because of the
breach or default of Sublessor as tenant under the Main Lease. Sublessor and
Subtenant agree that Section K of the First Amendment shall apply with
respect to any termination under the Main Lease, however, Subtenant
acknowledges and agrees that in the event Sublessor exercises the termination
option provided to Sublessor under the Main Lease, Sublessor shall have no
obligation or liability to Subtenant, and it shall be Subtenant's
responsibility to negotiate a separate agreement with Overlandlord to remain
in the Premises as provided in Section K of the First Amendment. In the event
Subtenant elects to exercise the right to terminate under the Main Lease,
Sublessor agrees to cooperate with Subtenant in order to facilitate
Subtenant's exercise of the termination right (at no cost or expense to
Sublessor), but Subtenant acknowledges and agrees that Sublessor has no
independent obligation to honor the termination right and further agrees that
this Sublease and Subtenant's obligations hereunder shall not terminate
unless and until the Main Lease and the obligations thereunder terminate with
respect to the Premises. Notwithstanding any provision to the contrary
contained herein, Subtenant shall have no right to exercise the right of
termination if Subtenant is in default under this Sublease beyond applicable
notice and cure periods.
14. ASSIGNMENT AND SUBLETTINGS. Subtenant shall not, by operation
of law, merger, consolidation or otherwise, assign, sell, mortgage, pledge or
in any manner transfer this Sublease or any interest therein, or sublet the
Premises or any part or parts thereof, or grant any concession or license or
otherwise permit occupancy of all or any part of the Premises by any person,
except with the prior written consent of Sublessor. Sublessor shall not
unreasonably withhold its consent to an assignment of this Sublease by
Subtenant (which assignment may nevertheless require the consent of
Overlandlord), provided that the assignee proposed by Subtenant shall
demonstrate to the reasonable satisfaction of Sublessor that such proposed
assignee has a net worth and financial capacity equal to or greater than the
net worth and financial capacity of Subtenant. Neither the consent of
Sublessor to an assignment, subletting, concession or license, nor the
references in this Sublease to assignees, subtenants, concessionaires or
licensees, shall in any way be construed to relieve Subtenant of the
requirement of obtaining the consent of Sublessor to any further assignment,
subletting, concession or license for all or any part of the Premises. In the
event Sublessor consents to any assignment of this Sublease, the assignee
shall execute and deliver to Sublessor an agreement in form and substance
satisfactory to Sublessor
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whereby the assignee shall assume all of Subtenant's obligations under this
Sublease from and after the date of the assignment. Notwithstanding any
assignment or subletting, including, without limitation, any assignment or
subletting permitted or consented to, the original Subtenant named herein and
any other person(s) who at any time was or were Subtenant shall remain fully
liable on this Sublease, and if this Sublease shall be amended, modified,
extended or renewed, the original Subtenant named herein and any other
person(s) who at any time was or were Subtenant shall remain fully liable on
this Sublease as so amended, modified, extended or renewed. Any violation of
any provision of this Sublease by any assignee, subtenant or other occupant
shall be deemed a violation by the original Subtenant named herein, the then
Subtenant and any other person(s) who at any time was or were Subtenant, it
being the intention and meaning that the original Subtenant named herein, the
then Subtenant and any other person(s) who at any time was or were Subtenant
shall all be liable to Sublessor for any and all acts or omissions of any and
all assignees, subtenants and other occupants of the Premises claiming by,
through or under Subtenant. If this Sublease shall be assigned or if the
Premises or any part thereof shall be sublet or occupied by any person or
persons other than the original Subtenant named herein, Sublessor may collect
rent from any such assignee and/or any subtenants or occupants, and apply the
net amounts collected to the Base Rent and Additional Charges, but no such
assignment, subletting, occupancy or collection shall be deemed a waiver of
any of the provisions of this Paragraph, or the acceptance of the assignee,
subtenant or occupant as Subtenant, or a release of any person from the
further performance by such person of the obligations of Subtenant under this
Sublease.
15. INSURANCE. Subtenant shall provide and maintain throughout the
term of this Sublease a policy or policies of comprehensive public liability
insurance in standard form naming Sublessor and Overlandlord as additional
insureds and otherwise complying with Section of the Main Lease with limits of
not less than $2,000,000.00 combined single limit for both bodily injury or
death and for property damage, including water damage. A policy, binder or
other reasonable satisfactory evidence of such insurance shall be delivered
to Sublessor by Subtenant no less than ten (10) days before the Possession
Date. Subtenant shall procure and pay for renewals or replacements of such
insurance from time to time before the expiration thereof, and Subtenant
shall deliver to Sublessor such renewal or replacement policy or binder or
other reasonably satisfactory evidence of such insurance at least 30 days
before the expiration of any existing policy. All such policies shall be
issued by companies licensed to do business in the State of California and
shall contain a provision whereby the same cannot be cancelled or modified
unless Sublessor is given at least 30 days' prior written notice by certified
or registered mail of such cancellation or modification.
16. RIGHT TO CURE SUBTENANT'S DEFAULTS AND DAMAGES. If Subtenant
shall at any time fail to make any payment or perform any other obligation
of Subtenant hereunder within the applicable cure period, if any, then
Sublessor shall have the right, but not the obligation, after five days'
notice to Subtenant, or without notice to Subtenant in the case of any
emergency, and without waiving or releasing Subtenant from any obligations of
Subtenant hereunder, to make such payment or perform such other obligation of
Subtenant in such manner and to such extent as Sublessor shall deem
necessary, and in exercising any such right, to pay any incidental costs and
expenses, employ attorneys, and incur and pay reasonable attorneys' fees.
Subtenant shall pay to Sublessor upon demand all sums so paid by Sublessor
and all incidental costs and
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expenses of Sublessor in connection therewith, together with interest thereon
at the rate of 2% per calendar month or any part thereof or the then maximum
rate of interest which may lawfully be collected from Subtenant, whichever
shall be less, from the date of the making of such expenditures.
17. REMEDIES OF SUBLESSOR.
(a) "Default" shall mean a default by Subtenant under any
provision of this Sublease which default has not been cured within
any applicable grace or cure period.
(b) If a Default occurs, Sublessor shall have, in addition
to all its rights and remedies contained in the Incorporated
Provisions pursuant to Section 4 hereof, the following rights and
remedies; all of Sublessor's rights and remedies under this
Sublease are distinct, separate and cumulative, and none will
exclude any other right or remedy allowed by law:
(i) Sublessor may, with or without notice of such
election and with or without entry or other action by
Sublessor, immediately terminate this Sublease, in which
event the Term of this Sublease shall end and all right,
title, and interest of Subtenant hereunder shall expire; or
(ii) Sublessor may enforce the provisions of this
Sublease and may enforce and protect the rights of the
Sublessor hereunder by a suit or suits in equity or at law for
the specific performance of any covenant or agreement herein
or for the enforcement of any other appropriate legal or
equitable remedy, including the recovery of all moneys due or
to become due under any of the provisions of this Sublease.
(c) If Sublessor elects to terminate Subtenant's right to
possession only without terminating this Sublease, Sublessor, at
Sublessor's option, may enter into the Premises, remove Subtenant's
signs and other evidences of tenancy, and take and hold possession
thereof without such entry and possession terminating this Sublease
or releasing Subtenant, in whole or in part, from Subtenant's
obligation to pay Rent under this Sublease for the full Term, and
in the case Sublessor elects to terminate the Sublease or to
terminate possession only, Subtenant will immediately pay to
Sublessor, if Sublessor so elects, a sum equal to the then present
value (as defined in the following sentence) of the entire amount
of the Rent specified in Section 9 of this Sublease for the
remainder of the Term, plus any other sums then due under this
Sublease, less the fair rental value of the Premises for such
period. In calculating this sum, present value shall be computed on
the basis of a discount rate of six percent per annum. In the
alternative, upon and after entry into possession without
termination of the Sublease, Sublessor will use its best efforts to
relet all or any part of the Premises for Subtenant's account for
such rent and for such time and upon such terms as Sublessor in
Sublessor's sole discretion may determine. Sublessor will not be
required to observe any instruction given by Subtenant about such
reletting. Subtenant will, upon demand, pay the cost of Sublessor's
expenses of the reletting. If the consideration collected by
Sublessor upon any such
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reletting for Subtenant's account is not sufficient to pay monthly
the full amount of the Rent due under this Sublease, together with
the costs of Sublessor's expenses, Subtenant will pay to Sublessor
the amount of each monthly deficiency upon demand.
(d) Subtenant will pay upon demand all of Sublessor's costs,
charges, and expenses, including reasonable attorneys' fees, and
fees and expenses of agents and others retained by Sublessor in any
litigation, negotiation, or transaction in which Sublessor seeks to
enforce the terms or provisions of this Sublease.
18. BROKERAGE. Sublessor and Subtenant each represents to the
other that no broker or other person had any part, or was instrumental in any
way, in bringing about this Sublease. Sublessor and Subtenant each agree to
indemnify, defend and hold harmless the other from and against, any claims
made by any broker or any person, for a brokerage commission, finder's fee,
or similar compensation, by reason of or in connection with this Sublease,
and any loss, liability, damage, cost and expense (including, without
limitation, reasonable attorneys' fees) in connection with such claims if
such broker or other person had, or claimed to have, dealings with such party
in bringing about this Sublease. The provisions of this Paragraph shall
survive the expiration or termination of this Sublease.
19. WAIVER OF JURY TRIAL AND RIGHT TO COUNTERCLAIM. Subtenant
hereby waives all right to trial by jury in any summary or other action,
proceeding or counterclaim arising out of or in any way connected with this
Sublease. Subtenant also hereby waives all right to assert or interpose a
counterclaim in any summary proceeding or other action or proceeding to
recover or obtain possession of the Premises unless legally required to do so
to preserve the claim.
20. NO WAIVER. The failure of Sublessor to insist in any one or
more cases upon the strict performance or observance of any obligation of
Subtenant hereunder or to exercise any right or option contained herein shall
not be construed as a waiver or relinquishment for the future of any such
obligation of Subtenant or any right or option of Sublessor. Sublessor's
receipt and acceptance of Base Rent or Additional Charges, or Sublessor's
acceptance of performance of any other obligation by Subtenant, with
knowledge of Subtenant's breach of any provision of this Sublease, shall not
be deemed a waiver of such breach. No waiver by Sublessor of any term,
covenant or condition of this Sublease shall be deemed to have been made
unless expressed in writing and signed by Sublessor.
21. COMPLETE AGREEMENT. There are no representations, agreements,
arrangements or understandings, oral or written, between the parties relating
to the subject matter of this Sublease which are not fully expressed in this
Sublease. This Sublease cannot be changed or terminated orally or in any
other manner other than by a written agreement executed by both parties.
22. SUCCESSORS AND ASSIGNS. The provisions of this Sublease,
except as herein otherwise specifically provided, shall extend to, bind and
inure to the benefit of the parties hereto and their respective personal
representatives, heirs, successors and permitted assigns. In the event of any
assignment or transfer of the leasehold estate under the Main Lease, the
transferor or assignor, as the case may be, shall be and hereby is entirely
relieved and freed of all obligations under this Sublease arising after the
date of any such assignment or transfer, except
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that Sublessor shall not be relieved and freed of its payment obligations to
Overlandlord under the Main Lease which payment obligations are greater than
the payment obligations of Subtenant to Sublessor hereunder unless
Overlandlord and Sublessor otherwise agree.
23. INTERPRETATION. Irrespective of the place of execution or
performance, this Sublease shall be governed by and construed in accordance
with the laws of the state where the Premises is located. If any provision
of this Sublease or the application thereof to any person or circumstance
shall, for any reason and to any extent, be invalid or unenforceable, the
remainder of this Sublease and the application of that provision to other
persons or circumstances shall not be affected but rather shall be enforced
to the extent permitted by law. The table of contents, captions, headings
and titles, if any, in this Sublease are solely for convenience of reference
and shall not affect its interpretation. This Sublease shall be construed
without regard to any presumption or other rule requiring construction
against the party causing this Sublease to be drafted. Each covenant,
agreement, obligation or other provision of this Sublease shall be deemed and
construed as a separate and independent covenant of the party bound by,
undertaking or making same, not dependent on any other provision of this
Sublease unless otherwise expressly provided. All pronouns and any
variations thereof shall be deemed to refer to the masculine, feminine or
neuter, singular or plural, as the identity of the parties may require. The
word "person" as used in this Sublease shall mean a natural person or
persons, a partnership, a corporation or any other form of business or legal
association or entity. This Sublease may be executed in counterparts or with
counterpart signature pages.
24. CONSENT OF LANDLORD UNDER MAIN LEASE. This Sublease shall not be
operative or effective for any purpose whatsoever unless and until
Overlandlord shall have given its written consent as provided hereto and any
conditions precedent with respect to such consent have been satisfied or
waived. Sublessor shall have no obligation to satisfy any such conditions
precedent provided, however, that Subtenant may, but shall not be obligated
to, satisfy any such conditions precedent and Sublessor shall reasonably
cooperate with Subtenant (at no cost or expense to Sublessor) in this regard.
Subtenant shall be responsible for the payment of any administrative fees,
attorneys fees or other charges required by Overlandlord in connection with
such consent.
25. HOLDING OVER; SURRENDER. Subtenant shall pay Sublessor a sum for
each day that Subtenant retains possession of the Premises or any part
thereof after termination of this Sublease, by lapse of time or otherwise,
equal to two (2) times the sum which Sublessor is required to pay
Overlandlord for the Premises, and Subtenant shall also pay damages
consequential as well as direct, sustained by Sublessor by reason of such
retention. Nothing in this Section contained, however, shall be construed or
operate as a waiver of Sublessor's right of reentry or any other right of
Sublessor under this Sublease or of Overlandlord under the Main Lease. Upon
termination of this Sublease, Subtenant shall be responsible for the removal of
all alterations or improvements from the Premises which Overlandlord requires
to be removed under the Main Lease, as well as all other surrender
obligations with respect to the Premises under the Main Lease.
26. SECURITY DEPOSIT. Subtenant agrees to deposit with Sublessor, upon
the execution of this Sublease. $8,855.03 as security for the full and
faithful performance by Subtenant of every term, provision, covenant, and
condition of this Sublease. The security deposit will be
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held by Sublessor, provided however, that Sublessor will have no obligation
to segregate the amount from Sublessor's other funds. Upon the occurrence of
a Default by Subtenant in respect to any of the terms, provisions, covenants,
or conditions of this Sublease, including, but not limited to, payment of
Rent, Sublessor may use, apply, or retain the whole or any part of the
security so deposited for the payment of any such Rent in default, or for any
other sum which Sublessor may expend or be required to expend by reason of
Subtenant's Default, including, without limitation, any damage or deficiency
in the reletting of the Premises, whether such damage or deficiency accrued
before or after any reentry by Sublessor. If any of the deposit is so used,
Subtenant, on written demand by Sublessor, will promptly pay to Sublessor
such additional sum as may be necessary to restore the deposit to the
original amount set forth in this Section. If Subtenant fully and faithfully
complies with all of the terms, provisions, covenants, and conditions of this
Sublease, the deposit, or any balance thereof will be returned to Subtenant
after the last to occur of the following:
(a) the time fixed as the expiration of the Term of this Sublease;
(b) the surrender of the Premises by Subtenant to Sublessor in
accordance with this Sublease;
(c) the receipt of Sublessor of all sums due pursuant to the
Sublease. Except as otherwise required by law, Subtenant will not be
entitled to any interest on such deposit.
27. COUNTERPARTS. This Sublease may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute but one and the same instrument.
28. NO OFFER. The submission of this Sublease shall not be deemed to be
an offer, an acceptance, or a reservation of the Premises; and Sublessor
shall not be bound hereby until Sublessor has delivered to Subtenant a fully
executed copy of this Sublease, signed by both of the parties on the last
page of this Sublease in the spaces herein provided. Until such delivery,
Sublessor reserves the right to exhibit and lease the Premises to other
prospective tenants.
29. SUBLESSOR'S CONTINGENCY. Sublessor shall have no obligation under
this Sublease unless and until Overlandlord shall have executed and delivered
the First Amendment to Sublessor.
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IN WITNESS WHEREOF, Sublessor and Subtenant have executed this Sublease
as of the day and year first above written.
SUBLESSOR: IXL-SAN DIEGO, INC., a Delaware corporation
By: /s/ David Watkins
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Name: David Watkins
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Title: President
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SUBTENANT: KINZAN.COM., a California corporation
By: /s/ Gari L. Cheever
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Name: Gari L. Cheever
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Title: President & CEO
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ACKNOWLEDGED AND CONSENTED TO:
C.B. Graham International, Inc., a Delaware corporation, Landlord
under the Main Lease, hereby consents to the sublease of the Premises as
described in the foregoing Sublease and confirms that the consent given
hereby satisfies the requirements for landlord's consent of the subletting of
the Premises set forth in the Main Lease.
OVERLANDLORD: C.B. GRAHAM INTERNATIONAL, INC.
By:
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Name:
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Title:
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