EXHIBIT 10.14
SUB-SUBLEASE AGREEMENT
THIS SUB-SUBLEASE AGREEMENT ("Agreement"), dated as of the 15TH day of
September, 1999 for reference purposes only, between Countrywide Home Loans,
Inc., a New York corporation ("Sub-sublessor") and Bill Gross' idealab!, a
California corporation ("Sub-subtenant").
1. BASIC TERMS.
1.1 ADDRESS OF SUB-SUBLESSOR:
Countrywide Home Loans, Inc.
4500 Park Granada
Attn: Patricia I. Poe
Mail Stop CH-11
Calabasas, CA 91302
or such other address as may from time to time be designated by Sub-sublessor in
writing.
1.2 ADDRESS OF SUB-SUBTENANT:
Bill Gross' idealab!
130 Union Street
Pasadena, CA 91103
Attn: Marcia Goldstein, Chief Operating Office
With copy to:
Bill Gross' idealab!
130 Union Street
Pasadena, CA 91103
Attn: Pam Rushman, Facilities Manager
or such other address as may from time to time be designated by Sub-subtenant in
writing.
1.3 DEMISED PREMISES: The entire fourth floor consisting of
approximately 24,007 rentable square feet of area in the Building as shown on
EXHIBIT "A" attached hereto.
1.4 BUILDING: The Building in which the Demised Premises are located,
the common address of which is 55 South Lake Avenue, Pasadena, CA.
1.5 MAIN LEASE: Pasadena Towers Office Lease dated as of September 24,
1990, as amended and assigned by instruments dated June 12, 1992, November 24,
1997 and June 24, 1997 (collectively, the "Main Lease"). Aon Service
Corporation, assignee of Alexander & Alexander of California, Inc.
("Sublessor"), as tenant under the Main Lease
entered into a Sublease Agreement dated as of November 24, 1997 with
Sub-sublessor (the "Main Sublease"). Sub-sublessor represents and warrants that
true, correct and complete copies of the Main Lease and the Main Sublease,
including all Exhibits and Riders thereto, are attached hereto as EXHIBIT "B."
1.6 LANDLORD: EOP-Pasadena Towers, LLC, a Delaware limited liability
company (successor in interest to Home Savings of America, F.A.).
1.7 SUBLESSOR: Aon Service Corporation, assignee of Alexander &
Alexander of California, Inc.
1.8 SUB-SUBLEASE TERM:
Commencement Date: Upon delivery of possession of any portion of the
Demised Premises to Sub-subtenant following receipt of Landlord's consent and
Sublessor's consent to this Agreement. Upon delivery of possession of the
Demised Premises and receipt of the consents set forth herein, the Commencement
Date shall be filled in here: SEPTEMBER 16, 1999.
Expiration Date: December 29, 2001.
Option to Extend: Provided Sub-sublessor has exercised its option to
extend the Main Sublease, Sub-subtenant shall have one option to extend the
Sub-sublease Term for five (5) years and approximately one (1) month. See
SECTION 32.
1.9 RENT: All sums, moneys, payments, costs and expenses required to
be paid by Sub-subtenant to Sub-sublessor pursuant to this Agreement.
1.10 BASIC RENT: $1.80 per rentable square foot per month ($43,212.60
per month).
1.11 PROVISIONS OF MAIN LEASE NOT INCORPORATED BY REFERENCE: 1(c),
1(d), 1(g), 1(j), 1(k), 1(l), 1(o), 1(p), 1(q), 1(r), 1(s), 1(t), 1(u), 1(v),
1(w), 1(x), 1(y), 6(c), 10, 15(b), 21(c), Exhibit C, Exhibit G, Exhibit I,
Exhibit 1, 60, 61, 62, 64, 65, 66, 67, 68, 69, 70, 71, 73, 74, 75, 80, 81, 83,
87, 88(a), 89, 90, 91, 92, 95, 97, 98, 99, 101, 102, 103.
1.12 BASE YEAR: 2000 calendar year.
1.13 SUB-SUBTENANT'S PROPORTIONATE SHARE: 11.6% (which reflects the
ratio of the rentable square feet of the Demised Premises to the rentable square
feet of the Building).
1.14 SECURITY DEPOSIT: $129,637.80. The Security Deposit shall be
delivered by Sub-subtenant to Sub-sublessor upon execution by Sub-subtenant of
this Agreement and the receipt of Landlord's and Sublessor's consent to this
Agreement, and shall be retained by Sub-sublessor as cash security for the
faithful performance and observance by Sub-
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subtenant of the covenants, agreements and conditions of this Agreement.
Notwithstanding anything to the contrary contained in any law or statute now
existing or hereafter passed (i) except as provided below, Sub-subtenant shall
not be entitled to any interest on the Security Deposit; (ii) Sub-sublessor
shall not be obligated to hold the Security Deposit in trust or in a separate
account; and (iii) Sub-sublessor shall have the right to commingle the Security
Deposit with its other funds. Sub-sublessor may use, apply or retain the whole
or any part of the Security Deposit to the extent required for the payment of
any Basic Rent or any other sums payable hereunder as to which Sub-subtenant is
in default or to the extent required for the reimbursement to Sub-sublessor of
any sum which Sub-sublessor may expend or may be required to expend by reason of
Sub-subtenant's default with respect to any of the covenants, agreements or
conditions of this Agreement. If any portion of the Security Deposit is so used
or applied, Sub-subtenant shall within five (5) days after written demand
therefor deposit cash with Sub-sublessor in an amount sufficient to restore the
Security Deposit to the "Current Amount", as defined below, and Sub-subtenant's
failure to do so shall constitute a material breach of this Sub-sublease. For
the period commencing on the Commencement Date and ending on the last day of the
sixth full calendar month following the Rent Commencement Date, as defined
herein, the Current Amount shall be $129,637.80; for the period beginning on the
first day of the seventh full calendar month following the Rent Commencement
Date and ending on the last day of the fourteenth full calendar month following
the Rent Commencement Date, the Current Amount shall be $86,425.20; and for the
period beginning on the first day of the fifteenth full calendar month following
the Rent Commencement Date, the Current Amount shall be $43,212.60. If
Sub-subtenant is not then in default and has restored the Security Deposit to
the then applicable Current Amount, Sub-sublessor shall apply $43,212.60 of the
Security Deposit to the Basic Rent payable by Sub-subtenant hereunder for the
seventh full calendar month following the Rent Commencement Date. If
Sub-subtenant is not then in default and has restored the Security Deposit to
the then applicable Current Amount, Sub-sublessor shall apply $43,212.60 of the
Security Deposit to the Basic Rent payable by Sub-subtenant hereunder for the
fifteenth full calendar month following the Rent Commencement Date. If
Sub-subtenant shall fully and faithfully comply with all of the covenants,
agreements and conditions of this Agreement, the then Current Amount shall be
returned to Sub-subtenant after the date fixed as the expiration of the term
hereof and surrender of the Demised Premises to Sub-sublessor. Sub-subtenant
shall be entitled to receive five percent (5%) annual interest on $43,212.60 of
the Security Deposit during the entire term of this Agreement.
1.15 PERMITTED USES: General office purposes, development of Internet
companies, and all related uses permitted under the Main Lease.
1.16 BROKER: Travers Realty.
2. DEMISE AND TERM. Sub-sublessor hereby sub-subleases to
Sub-subtenant, and Sub-subtenant hereby hires from Sub-sublessor, the Demised
Premises, which Demised Premises are subleased under the Main Sublease to
Sub-sublessor. The term of this Agreement shall be for the period specified in
SECTION 1.8, commencing on the Commencement Date and ending on the
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Expiration Date, unless sooner terminated or extended as herein provided.
Sub-subtenant and Sub-sublessor agree that for the purposes of this Agreement,
the rentable square footage of the Demised Premises shall be as designated in
PARAGRAPH 1.3 and that there shall be no remeasurement of the Demised Premises.
Possession of approximately 12,000 rentable square feet of the Demised Premises
shall be delivered to Sub-subtenant on or before September 13, 1999, and
possession of the remainder of the Demised Premises shall be delivered to
Sub-subtenant on or before October 4, 1999; provided, however, that the
effectiveness of this Agreement shall be subject to receiving Landlord's and
Sublessor's consent to this Agreement.
3. SUBORDINATE TO MAIN SUBLEASE AND MAIN LEASE. This Agreement is and shall
be subject and subordinate to the Main Sublease, the Main Lease, and to the
matters to which the Main Lease is or shall be subject and subordinate.
4. INCORPORATION BY REFERENCE.
4.1 Except for the provisions of the Main Lease described in SECTION
1.11, the terms, covenants and conditions of the Main Lease are incorporated
herein by reference so that, except to the extent that they are inapplicable or
modified by the provisions of this Agreement for the purpose of incorporation by
reference, each and every term, covenant and condition of the Main Lease binding
or inuring to the benefit of the Landlord thereunder shall, in respect of this
Agreement, bind or inure to the benefit of Sub-sublessor, and each and every
term, covenant and condition of the Main Lease binding or inuring to the benefit
of the Tenant thereunder shall, in respect of this Agreement, bind or inure to
the benefit of Sub-subtenant, with the same force and effect as if such terms,
covenants and conditions were completely set forth in this Agreement, and as if
the words "Landlord" and "Tenant," or words of similar import, wherever the same
appear in the Main Lease, were construed to mean, respectively, "Sub-sublessor"
and "Sub-subtenant" in this Agreement, and as if the word "Premises," or words
of similar import, wherever the same appear in the Main Lease, were construed to
mean "Demised Premises" in this Agreement, and as if the word "Lease," or words
of similar import, wherever the same appear in the Main Lease, were construed to
mean this "Agreement."
4.2 Except for the time limits imposed on Sub-subtenant for the
payment of Rent, 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 four (4) days, so
that in each instance (other than for the times of performance set forth in
Section 25(a) of the Main Lease) Sub-subtenant shall have four (4) days less
time to observe or perform hereunder than Sublessor has as the Tenant under the
Main Lease.
4.3 Any non-liability, release, indemnity or hold harmless provision
in the Main Lease for the benefit of the Landlord under the Main Lease that is
incorporated herein by reference, shall be deemed to inure to the benefit of
Sub-sublessor, Sublessor and the Landlord,
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for the purpose of incorporation by reference in this Agreement.
4.4 Any right of the Landlord of access or inspection and any right of
the Landlord under the Main Lease to do work in the Demised Premised under the
Main Lease or in the Building and any right of the Landlord in respect of rules
and regulations shall be deemed to inure to the benefit of Sub-sublessor,
Sublessor and the Landlord, for the purpose of incorporation by reference in
this Agreement.
4.5 If any of the express provisions of this Agreement shall conflict
with any of the provisions incorporated by reference, such conflict shall be
resolved in every instance in favor of the express provisions of this Agreement.
5. PERFORMANCE BY SUB-SUBLESSOR.
5.1 Any obligation of Sub-sublessor which is contained in this
Agreement by the incorporation by reference of the provisions of the Main Lease
shall be observed or performed by Sub-sublessor using commercially reasonable
efforts to cause the Landlord under the Main Lease to observe and/or perform the
same, and Sub-sublessor shall have a reasonable time to enforce its rights to
cause such observance or performance. Sub-sublessor shall not be required to
furnish, supply or install anything under any article of the Main Lease.
Sub-subtenant shall not in any event have any rights in respect of the Demised
Premises greater than Sub-sublessor's rights under the Main Sublease and the
Main Lease, and notwithstanding any provision to the contrary, as to obligations
that pertain to the Demised Premised and are contained in this Agreement by the
incorporation by reference of the provisions of the Main Lease, Sub-sublessor
shall not be required to make any payment or perform any obligation, and
Sub-sublessor shall have no liability to Sub-subtenant for any matter
whatsoever, except for Sub-sublessor's obligation to pay the rent and additional
rent due under the Main Sublease, Sub-sublessor's obligation to comply with the
terms and conditions of the Main Sublease which have not become obligations of
Sub-subtenant pursuant to this Agreement and for Sub-sublessor's obligation to
use commercially reasonable efforts, upon request of Sub-subtenant, to cause the
Sublessor under the Main Sublease to observe and/or perform its obligation under
the Main Sublease and Landlord under the Main Lease to observe and/or perform
its obligations under the Main Lease. Sub-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 the
Landlord or otherwise, including, without limitation, heat, air conditioning,
water, electricity, maintenance and/or repairs, 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 liability on the part of Sub-
sublessor except to the extent caused by Sub-sublessor's failure (a) to pay the
rent and additional rent due under the Main Sublease and to otherwise comply
with the provisions of the Main Sublease, except for provisions that have become
the obligation of Sub-subtenant pursuant to this Agreement, to the extent that
such failure would materially adversely affect Sub-subtenant's use of the
Demised Premises, or (b) to use commercially reasonable efforts to cause
Landlord to perform such obligations under the Main Lease. Sub-sublessor shall
provide to Sub-subtenant true and correct copies of all communications between
Sub-sublessor and the Landlord in connection with Sub-sublessor's performance of
its obligations under this Section.
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5.2 Notwithstanding any contrary provision of this Agreement,
Sub-sublessor shall be liable to Sub-subtenant for breach of this Agreement
where:
(a) Sub-sublessor fails to use commercially reasonable efforts to
cause (i) Sublessor under the Main Sublease to observe, perform and discharge
the obligations of Sublessor thereunder insofar as they pertain to the Demised
Premises, and/or (ii) Landlord under the Main Lease to observe, perform and
discharge the obligations of Landlord thereunder insofar as they pertain to the
Demised Premised;
(b) (i) Sublessor is excused from performing under the Main
Sublease as a consequence of Sub-sublessor's default thereunder and such default
is not attributable to a corresponding default by Sub-subtenant under this
Agreement and/or (ii) Landlord is excused from performing under the Main Lease
as a consequence of Sub-sublessor's default thereunder and such default is not
attributable to a corresponding default by Sub-subtenant under this Agreement;
or
(c) Sub-sublessor fails to reasonably cooperate with
Sub-subtenant as required to secure enforcement of the Main Sublease against
Sublessor and/or damages for breach thereof and/or the Main Lease against
Landlord and/or damages for breach thereof.
5.3 It is the parties' intention that Sub-subtenant shall be provided
all of the utilities and services which the Landlord is obligated to provide
under the Main Lease to the Demised Premises. Certain provisions of the Main
Lease are not incorporated by reference in this Agreement because they pertain
to obligations Landlord is to perform under the Main Lease which Sub-sublessor
is not capable of independently performing under this Agreement. To the extent
these provisions of the Main Lease pertain to the Demised Premises,
Sub-sublessor shall use commercially reasonable efforts to enforce the
observance and performance thereof by Landlord. It is understood that the
absence of privity of contract between Sub-subtenant and Landlord may
necessitate that Sub-sublessor prosecute in its name, for Sub-subtenant's
benefit, such proceedings at law or equity as may be reasonably required to
enforce such rights and remedies accorded to Sub-subtenant hereunder. In the
event of any such prosecution, Sub-subtenant shall pay all costs of
Sub-sublessor in prosecuting such proceeding, including attorneys' fees and
costs.
5.4 Sub-subtenant agrees that due to the absence of privity of
contract between Sub-sublessor and Landlord, Sub-sublessor shall be deemed to
have discharged any duty hereunder to use commercially reasonable efforts to
cause Landlord to perform its obligations under the Main Lease if Sub-sublessor
shall have used commercially reasonable efforts to cause Sublessor to cause
Landlord to so perform.
6. NO BREACH OF MAIN LEASE. With respect to Sub-subtenant's obligations
under this Sub-sublease, Sub-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 by the tenant thereunder, whether or not such act or
thing is permitted under the provisions of this Agreement. Sub-sublessor shall
perform its obligations under the Main Lease and the Main Sublease except to the
extent Sub-subtenant is obligated herein to perform same.
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7. INTENTIONALLY DELETED.
8. INDEMNITY. Notwithstanding the incorporation by reference of Rider
Section 100 of the Main Lease, Sub-sublessor shall not be responsible, nor shall
Sub-subtenant be relieved of its indemnity obligation, for loss, cost,
liability, damage and expense resulting from the passive negligence (as opposed
to active negligence) of Landlord or its agents, contractors, servants,
employees or licensees. Except as provided in the preceding sentence, Sections
19 and 20 of the Main Lease, and Rider Section 100 of the Main Lease, are
incorporated herein by reference such that the terms thereof shall have the same
force as if completely set forth in this Agreement, and as if the words
"Landlord" and "Tenant" wherever they appear therein were construed to mean,
respectively, "Sub-sublessor" and "Sub-subtenant", and as if the words "Lease"
and "Premises" wherever they appear therein were construed to mean,
respectively, "Sub-sublease" and "Demised Premises".
9. BASIC RENT. From and after December 13, 1999 (the "Rent Commencement
Date"), Sub-subtenant shall pay without deduction or offset, monthly basic rent
("Basic Rent") in the amounts specified in SECTION 1.10.
Basic Rent shall be payable in advance on the first day of each month
during the term of this Agreement. Basic Rent and all other amounts payable by
Sub-subtenant to Sub-sublessor (except in the event Sub-subtenant is required
to make such payments to the Landlord) under the provisions of this Agreement
(such amounts other than Basic Rent being herein called the "Additional Rent")
shall be paid when due (within five (5) business days after receipt of demand as
to Additional Rent but without notice as to Basic Rent). Sub-sublessor shall
have the same rights and remedies for the non-payment of Additional Rent as for
the non-payment of Basic Rent. Basic Rent and Additional Rent shall be paid to
Sub-sublessor in lawful money of the United States at the address of
Sub-sublessor set forth at the head of this Agreement or to such other person
and/or at such other address as Sub-sublessor may from time to time designate
by, notice to Sub-subtenant. No payment by Sub-subtenant or receipt by
Sub-sublessor of any lesser amount than the amount stipulated to be paid
hereunder shall be deemed other than on account of the earliest stipulated Basic
Rent or Additional Rent; nor shall any endorsement or statement on any check or
letter be deemed an accord and satisfaction, and Sub-sublessor may accept any
check or payment without prejudice to Sub-sublessor's right to recover the
balance due or to pursue any other remedy available to Sub-sublessor.
10. RENT ABATEMENT. To the extent that Sub-sublessor receives a rent
abatement relating to the Demised Premises pursuant to the Main Lease Rider No.
1, Paragraph 95, Sub-subtenant shall be entitled to a dollar-for-dollar rent
abatement of rent owing under this Agreement.
11. OPERATING EXPENSES.
11.1 Commencing January 1, 2001 and continuing on the first day of
each succeeding month during the Sub-sublease Term, Sub-subtenant shall pay
Sub-subtenant's Proportionate Share of increased Operating Expenses (as the term
"Operating Expenses" is
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defined in the Main Lease) for the then current calendar year over Operating
Expenses for the Base Year with respect to the Building. At such time as
Landlord reconciles estimated payments of Operating Expenses in accordance with
the Main Lease, Sub-sublessor likewise shall reconcile the estimated payments of
Operating Expenses to actual amounts thereof adjusted to reflect the assumption
that the Building is 100% occupied for the Base Year and the applicable expense
year. Any amount owed by one party to the other to be paid within thirty (30)
days after Sub-sublessor delivers to Sub-subtenant copies of both the Landlord's
annual reconciliation statement under the Main Lease and Sub-sublessor's
statement of Sub-subtenant's Proportionate Share of Operating Expenses in excess
of the Operating Expenses for the Base Year with respect to the Building. The
provisions of this Section 11.1 shall survive the expiration or earlier
termination of this Agreement.
11.2 Sub-subtenant's Proportionate Share of Operating Expenses shall
be determined as follows:
(a) Sub-sublessor shall determine the Operating Expenses which
would be payable by Sub-sublessor under Section 6 of the Main Lease with respect
to the Demised Premises as if the Base Year under the Main Lease were the same
as the Base Year under this Agreement; and
(b) Sub-subtenant's Proportionate Share under PARAGRAPH 1.13
shall be applied to the increases in Operating Expenses for the Building over
the Base Year.
Subject to PARAGRAPH 11.3 below, Sub-sublessor shall be entitled to rely on the
computations of Operating Expenses made by Landlord under the Main Lease.
11.3 If Landlord makes any permitted adjustment to Operating Expenses
under the Main Lease after the annual reconciliation has been completed, a
corresponding adjustment shall be made under this Agreement. If requested by
Sub-subtenant, Sub-sublessor will at Sub-subtenant's expense cause Sublessor to
exercise its rights under the Main Lease to inspect and audit Landlord's books
and records pertaining to Operating Expenses.
12. USE. Sub-subtenant shall use and occupy the Demised Premises for the
use specified in SECTION 1.15 above and for no other purpose.
13. CONDITION OF DEMISED PREMISES; USE OF FACILITIES. Sub-subtenant is
leasing the Demised Premises "as is." In making and executing this Agreement,
Sub-subtenant has relied solely on such investigations, examinations and
inspections as Sub-subtenant has chosen to make or has made. Sub-subtenant
acknowledges that Sub-sublessor has afforded Sub-subtenant the opportunity for
full and complete investigations, examinations, and inspections. Any
improvements to be made by Sub-subtenant pursuant to this Agreement shall be the
sole responsibility of Sub-subtenant. Sub-sublessor shall vacate the Demised
Premises, including the Computer/Switch Room in the Demised Premises, no later
than October 4, 1999. During the period commencing on September 13, 1999 and
ending October 4, 1999, Sub-sublessor shall at its sole cost and expense
segregate its existing equipment in such Computer/Switch Room in a manner that
prevents Sub-subtenant from gaining access to such equipment without Sub-
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sublessor's consent. Sub-sublessor, at its sole cost and expense, shall
segregate the security control systems serving the Demised Premises from the
security control systems serving other premises occupied by Sub-sublessor in the
Building by de-activating Sub-sublandlord's security system access cards with
respect to the Demised Premises and providing Sub-subtenant with use of and full
access to the security systems with respect to the Demised Premises. Upon
reasonable prior notice to Sub-subtenant (except in emergencies), Sub-subtenant
agrees to provide Sub-sublessor with access to such control systems serving the
Demised Premises in the event that Sub-sublessor requires such access to
maintain or repair the control systems serving the other premises occupied by
Sub-sublessor. Sub-subtenant agrees to provide to Sub-sublessor following the
commencement of the term hereof the names of the persons authorized to grant
such access to Sub-sublessor. All furniture in the Demised Premises belonging to
Sub-sublessor shall be removed by Sub-sublessor at its sole expense, provided
that all electricity floor boxes and the conference room table and chairs shall
remain in the Demised Premises and shall be available for use by Sub-subtenant
during the term of this Agreement at no additional cost to Sub-subtenant.
Notwithstanding the foregoing, in the event Sub-sublessor shall vacate all of
Sub-sublessor's Premises, Sub-sublessor shall leave the security control systems
for use by Sub-subtenant during the Term of this Agreement.
14. CONSENTS AND APPROVALS. In any instance when Sub-sublessor's consent or
approval is required under this Agreement, Sub-sublessor's refusal to consent to
or approve any matter or thing shall be deemed reasonable if, INTER ALIA, such
consent or approval has not been obtained from the Landlord under the Main Lease
or the Sublessor under the Main Sublease. Otherwise, Sub-sublessor's consent or
approval as required under this Agreement shall not be unreasonably withheld or
delayed.
15. NOTICES. 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 either (a) personally delivered or (b) sent by United
States postal service, return receipt requested and postage prepaid or (c) sent
by nationally recognized overnight courier. Notices, consents, approvals,
demands and requests which are served upon Sub-sublessor or Sub-subtenant in
the manner provided herein shall be deemed to have been given or served for all
purposes hereunder (i) on the date of delivery if personally delivered or sent
by courier service or (ii) on the date on which such notice, consent, approval,
demand or request shall have been mailed if mailed as aforesaid. All notices,
consents, approvals, demands and requests shall be addressed as specified in
SECTION 1.1 and/or 1.2, or at such other place as the receiving party may from
time to time designate in a notice given in accordance with the provisions of
this Section.
16. TERMINATION OF MAIN LEASE OR MAIN SUBLEASE. If for any reason the term
of the Main Lease or Main Sublease shall terminate prior to the expiration date
of this Agreement, this Agreement shall thereupon be terminated and
Sub-sublessor shall not be liable to Sub-subtenant by reason thereof unless said
termination shall have been effected because of the breach or default of
Sub-sublessor under the Main Lease, Main Sublease or this Agreement. If the
Landlord or Sublessor wrongfully terminates or attempts to wrongfully terminate
the Main Lease or Main Sublease, Sub-sublessor shall use commercially reasonable
efforts to keep the Main Lease and Main Sublease in full force and effect.
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17. INSURANCE. Sub-subtenant shall maintain throughout the term of this
Agreement the insurance required under the Main Lease to be maintained by
Sublessor relating to the Demised Premises. All insurance maintained by
Sub-subtenant shall name Sub-sublessor, Sublessor and the Landlord as additional
insureds. Sub-subtenant shall deliver to Sub-sublessor, Sublessor and the
Landlord certificates of insurance issued by the carriers or their duly
authorized agents prior to the Commencement Date. Sub-subtenant shall procure
and pay for renewals of such insurance from time to time before the expiration
thereof, and Sub-subtenant shall deliver to Sub-sublessor, Sublessor and the
Landlord such renewal policies or certificates at least ten (10) days before the
expiration of any existing policy. All such policies shall meet the requirements
in the Main Lease and shall be issued by companies of recognized responsibility
licensed to do business in the State of California and all such policies shall
contain a provision whereby the same cannot be canceled or modified unless
Sub-sublessor, Sublessor and the Landlord are given at least 20 days' prior
written notice by certified or registered mail of such cancellation or
modification.
18. ESTOPPEL CERTIFICATES. Sub-subtenant shall, within ten (10) business
days after receipt of each and every request by Sub-sublessor hereto, execute,
acknowledge and deliver to the party that made the request a statement in
writing (a) certifying that this Agreement is unmodified and in full force and
effect (or if there have been modifications, that the same is in full force and
effect as modified and stating the modifications), (b) specifying the dates to
which the Basic Rent and Sub-subtenant's Proportionate Share of Operating
Expenses (as defined in the Main Lease and adjusted as provided in this
Agreement) have been paid, (c) stating whether or not, to the best knowledge of
Sub-subtenant, Sub-sublessor is in default in performance or observance of its
obligations under this Agreement, and, if so, specifying each such default, (d)
stating whether or not, to the best knowledge of the party signing same, any
event has occurred which with the giving of notice or passage of time, or both,
would constitute a default by Sub-sublessor under this Agreement, and, if so
specifying each such event, (e) stating whether Sub-subtenant has exercised any
option(s) to extend the term of this Agreement, and, if so, specifying each such
extension, and (f) any other matter reasonably requested by Sub-sublessor. Any
such statement delivered pursuant to this section may be relied upon by any
prospective assignee or transferee of the leasehold estate under the Main Lease
or the subleasehold estate under the Main Sublease or the sub-subleasehold
estate under this Agreement.
19. ALTERATIONS. Sub-subtenant shall not make, cause or permit the making
of any alterations, addition, change, replacement, or installation in or to the
Demised Premises without obtaining the prior consent of the Sub-sublessor, and
Sub-subtenant will be required to obtain the consent of the Landlord in each
instance if required under the Main Lease and the Sublessor if required under
the Main Sublease.
20. RIGHT TO CURE SUB-SUBTENANT'S DEFAULTS. If Sub-subtenant shall at any
time fail to make any payment or perform any other obligation of Sub-subtenant
hereunder, then Sub-sublessor shall have the right, but not the obligation,
after 10 days' notice to Sub-subtenant, or without notice to Sub-subtenant in
the case of any emergency, and without waiving or releasing Sub-subtenant from
any obligations of Sub-subtenant hereunder, to make such payment or perform such
other obligation of Sub-subtenant in such manner and to such extent as
Sub-sublessor shall deem necessary, and in exercising any such right, to pay any
incidental costs
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and expenses, employ attorneys, and incur and pay reasonable attorneys' fees.
Sub-subtenant shall pay to Sub-sublessor within five (5) days after receipt of
demand all sums so paid by Sub-sublessor and all incidental costs and expenses
of Sub-sublessor in connection therewith, together with interest thereon at the
rate of one and one-half percent per calendar month or any part thereof or the
then maximum lawful interest rate, whichever shall be less, from the date of the
making of such expenditures until payment shall be made.
21. BROKERAGE. Sub-subtenant and Sub-sublessor each represent to the other
that it dealt with no broker or other person in bringing about this Agreement
other than the broker(s) listed in SECTION 1.16 above. Sub-sublessor shall be
solely responsible for payment of commissions to such brokers pursuant to
written agreements between Sub-sublessor and such brokers. Sub-sublessor shall
indemnify, defend and hold harmless Sub-subtenant from and against any loss,
liability, damage, cost and expenses (including, without limitation, reasonable
attorneys' fees) in connection with Sub-sublessor's obligation to pay
commissions to such brokers as contained in such written agreements. Each party
hereto shall indemnify, defend and hold harmless, the other party from and
against, any loss, liability, damage, cost and expense (including, without
limitation, reasonable attorneys' fees) in connection with (a) any claims made
by any other broker or other person for a brokerage commission, finder's fee, or
similar compensation, by reason of or in connection with this Agreement if such
other broker or other person claims to have had dealings with the indemnifying
party and/or (b) the enforcement of the indemnified party's rights under this
Section.
22. ARBITRATION. Except for any breach of this Agreement for which Sub-
sublessor shall be entitled to file an unlawful detainer action (which shall not
be precluded by this Section 22), any claim demand or cause of action, which
arises out of or is related to this Agreement (collectively, "Claims"), shall be
resolved by binding arbitration in accordance with (i) the Federal Arbitration
Act; (ii) the Code of Procedure ("Code") of the National Arbitration Forum
("NAF") and (iii) this Agreement, which shall control any inconsistency between
it and the Code. The NAF shall provide each party a list of arbitrators and each
party shall have the right to strike one name. The number of arbitrators on the
list will be the number of parties plus one. The decision of an arbitrator on
any Claims submitted to arbitration shall follow applicable substantive law and
be in writing setting forth the findings of fact and law and the reasons
supporting the decision. Such decision shall be final and binding upon the
parties, subject to the right of appeal described below. Judgment upon any
arbitration award may be entered in any court having jurisdiction. The
arbitrator has exclusive authority to resolve any dispute relating to the
applicability or enforceability of this Agreement, including the provisions of
this section. After a demand for arbitration is made, each party may conduct a
limited number of depositions (including the production of documents) by mutual
agreement or as permitted by the arbitrator.
23. NO WAIVER. The failure of Sub-sublessor or Sub-subtenant to insist in
any one or more cases upon the strict performance or observance of any
obligation of Sub-subtenant or Sub-sublessor 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 Sub-subtenant or Sub-sublessor or any
right or option of Sub-sublessor or Sub-subtenant. Sub-sublessor's receipt and
acceptance of Basic Rent or Operating Expenses, or Sub-sublessor's acceptance of
performance of any other obligation by Sub-subtenant, with knowledge of
Sub-subtenant's breach of any
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provision of this Agreement, shall not be deemed a waiver of such breach. No
waiver by Sub-sublessor or Sub-subtenant of any term, covenant or condition of
this Agreement shall be deemed to have been made unless expressed in writing and
signed by Sub-sublessor or Sub-subtenant, as the case may be.
24. COMPLETE AGREEMENT. There are no representations, warranties,
agreements, arrangements or understandings, oral or written, between the parties
or their representatives relating to the subject matter of this Agreement which
are not fully expressed in this Agreement. This Agreement cannot be changed or
terminated orally or in any manner other than by a written agreement executed by
both parties.
25. SUCCESSORS AND ASSIGNS. The provisions of this Agreement, 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 Sub-sublessor's interest in the leasehold estate under the Main
Lease or Main Sublease, the transferor or assignor, as the case may be, shall be
and hereby is entirely relieved and freed of all obligations under this
Agreement arising after the date of such assignment or transfer. No such
assignment or transfer by Sub-sublessor shall be effective unless and until the
assignee or transferee assumes in writing all of Sub-sublessor's obligations
under this Agreement.
26. THIRD PARTY CONSENTS.
26.1 This Agreement shall have no effect until the Landlord and
Sublessor shall each have given its written consent hereto. If the Landlord or
Sublessor does not give its consent to this Agreement for any reason whatsoever
on or before thirty (30) days after the date of execution hereof by
Sub-subtenant and Sub-sublessor, then either party may cancel this Agreement by
notice given to the other party.
26.2 If this Agreement is cancelled pursuant to PARAGRAPH 26.1 of this
Agreement, (i) this Agreement shall be deemed null and void and of no effect,
(ii) if Sub-subtenant is then in possession of all or any part of the Demised
Premises, Sub-subtenant shall (x) immediately quit and surrender to
Sub-sublessor the Demised Premises and (y) remove all of its property, and (iii)
Sub-sublessor shall promptly return to Sub-subtenant the Security Deposit, and
the amount paid by Sub-subtenant upon the execution of this Agreement for the
payment of the first full monthly installment of Basic Rent. Sub-subtenant shall
repair any damage caused by the removal of its property and shall restore the
Demised Premises to their condition prior to the installation of the items so
removed.
27. NO THIRD PARTY BENEFICIARY. None of the provisions of this Agreement
shall be construed to accrue to the benefit of, or be enforceable by, any third
party, other than the Landlord and Sublessor.
28. INTERPRETATION. Irrespective of the place of execution or performance,
this Agreement shall be governed by and construed in accordance with the laws of
the State of California. If any provision of this Agreement or the application
thereof to any person or
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circumstances shall, for any reason and to any extent, be invalid or
unenforceable, the remainder of this Agreement 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 captions, headings and
titles, if any, in this Agreement are solely for convenience or reference and
shall not affect its interpretation. This Agreement shall be construed without
regard to any presumption or other rule requiring construction against the party
causing this Agreement to be drafted. Each covenant, agreement, obligation or
separate and independent covenant of the party bound by, undertaking or making
same, shall not be dependent on any other provision of this Agreement unless
otherwise expressly provided. All terms and words used in this Agreement shall
mean a natural person or persons, a partnership, a corporation or other form of
business or legal association or entity.
29. AMENDMENT OR MODIFICATION. Sublessor and Landlord shall not amend or
modify the Main Lease, and Sub-sublessor and Sublessor shall not modify the Main
Sublease, in any way so as to materially or adversely affect Sub-subtenant or
its interest hereunder or in the Demised Premises, materially increase
Sub-subtenant's obligations hereunder or materially restrict Sub-subtenant's
rights hereunder.
30. QUIET ENJOYMENT; RIGHT TO CURE. Sub-subtenant shall peacefully have,
hold and enjoy the Demised Premises, subject to the terms and conditions of this
Agreement, provided that Sub-subtenant pays all Basic Rent and Additional Rent
and performs all of Sub-subtenant's covenants and agreements contained herein.
In the event, however, that Sub-sublessor defaults in the performance or
observance of any of Sub-sublessor's obligations hereunder or under the Main
Sublease or Main Lease, then Sub-subtenant shall give Sub-sublessor notice
specifying in what manner Sub-sublessor has defaulted, and if such default shall
not be cured by Sub-sublessor within thirty (30) days thereafter (except that if
such default cannot be cured within said thirty (30)-day period, this period
shall be extended for an additional reasonable time, provided that Sub-sublessor
diligently commences to cure such default within such thirty (30)-day period and
proceeds diligently thereafter to effect such cure as quickly as possible), then
in addition, Sub-subtenant shall be entitled, at Sub-subtenant's option, to cure
such default and promptly collect from Sub-sublessor Sub-subtenant's reasonable
expenses in so doing (including, without limitation, reasonable attorneys' fees
and court costs). Sub-subtenant shall not be required, however, to wait the
entire cure period described herein if earlier action is required to comply with
the Main Lease or Main Sublease or with any applicable governmental law,
regulation or order. Sub-sublessor shall provide copies to Sub-subtenant of all
notices received from Landlord and/or Sublessor.
31. TERMINATION OF MAIN SUBLEASE BY SUB-SUBLESSOR. Sub-sublessor shall not
voluntarily terminate the Main Sublease during the Term hereof unless and until
Sublessor has agreed in writing to continue this Agreement in full force and
effect as a direct sublease between Sublessor and Sub-subtenant upon and subject
to all of the terms, covenants and conditions of this Agreement for the balance
of the Term hereof. If Sublessor so consents, Sub-subtenant shall attorn to
Sublessor in connection with any such voluntary termination and shall execute an
attornment agreement in such form as may reasonably be requested by Sublessor;
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provided, however, that the attornment agreement does not materially adversely
affect the use by Sub-subtenant of the Demised Premises in accordance with the
terms of this Agreement, materially increase Sub-subtenant's obligations under
this Agreement or materially decrease Sub-subtenant's rights under this
Agreement. If this Agreement terminates as a result of Sub-sublessor's default
under the Main Sublease, then, so long as Sub-subtenant is not then in default
beyond any applicable cure period under the terms of this Agreement, this
Agreement shall continue in full force and effect as a direct sublease between
Sub-subtenant and Sublessor, upon and subject to all of the terms, covenants and
conditions of the Agreement for the balance of the Term hereof. In such event,
Sub-subtenant shall attorn to Sublessor as set forth in this paragraph.
32. OPTION TO EXTEND.
32.1 Provided Sub-sublessor has exercised its option to extend as
provided in the Main Sublease, Sub-subtenant shall have one option to extend the
term of this Agreement for a period of five (5) years and approximately one (1)
month (the "Option Term"), which option shall be exercisable by notice delivered
by Sub-subtenant to Sub-sublessor not less than thirteen (13) months prior to
the Expiration Date. Upon the proper exercise of such Option to extend, the term
of this Agreement shall be extended for a period of five (5) years and
approximately one (1) month, so as to expire on January 31, 2007. The Basic Rent
payable by Sub-subtenant during the Option Term shall be the fair market rental
value as negotiated between Sub-sublessor and Sublessor pursuant to Section 32
of the Main Sublease, provided, however, that in no event shall the Basic Rent
payable during the Option Term be less than the Basic Rent specified in SECTION
1.10. Sub-subtenant shall pay Additional Rent and its Proportionate Share of
Operating Expenses during the Option Term as set forth in this Agreement.
33. PARKING. Sub-subtenant shall be entitled to 72 parking spaces
(calculated at the rate of 3 parking spaces per 1,000 rentable square feet of
the Demises Premises) on the terms and conditions set forth in the Main Lease.
Except as otherwise provided herein, all provisions of the Main Lease applicable
to parking privileges are incorporated herein by reference.
34. ASSIGNMENT AND SUBLETTING. Sub-subtenant shall not assign or encumber
its interest in this Agreement or the Demised Premises, or further sublease all
or any part of the Demised Premises, without the prior written consent of
Sub-sublessor, which consent shall not be unreasonably withheld, conditioned, or
delayed. Notwithstanding the foregoing, subject to any restrictions in the Main
Lease or Main Sublease, Sub-subtenant shall have the right upon prior written
notice to Sub-sublessor to assign this Agreement in its entirety or to further
sublease all or any portion of the Demised Premises to: (i) any entity resulting
from a merger or consolidation with Sub-subtenant; or (ii) any entity succeeding
to the business and assets of Sub-subtenant. Sub-sublessor shall be entitled to
receive fifty percent (50%) of any Profits (as hereinafter defined) from any
assignment or further sublease by Sub-subtenant requiring the prior written
consent of Sub-sublessor. As used herein, "Profits" shall mean any rents,
additional charges or other consideration payable to Sub-subtenant by the
subtenant or assignee in excess of Basic Rent and Additional Rent (less
Sub-subtenant's reasonable costs associated with such sublease) payable by
Sub-subtenant under this Agreement. In no event shall any assignment or sublease
by Sub-subtenant (regardless of whether such assignment or sublease required
Sub-sublessor's consent) release or relieve Sub-subtenant from any obligation
under this Agreement.
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35. ATTORNEYS' FEES. In any action between Sub-sublessor and Sub-subtenant
to enforce any of the terms and provisions of this Agreement, the prevailing
party in such action shall be awarded, in addition to damages or other relief,
its actual attorneys' fees and all fees, costs and expenses incurred in
connection with such action.
36. RIGHT OF FIRST OFFER. Sub-subtenant shall have a right of first offer
(the "Right of First Offer") to sub-sublease, at its option, any additional
premises in the Building subleased by Sub-sublessor as of the date hereof that
Sub-sublessor wishes to sub-sublet during the term hereof ("Additional Space").
Sub-sublessor shall notify Sub-subtenant of its intent to sub-sublet Additional
Space (the "Notice") as well as the number of square feet proposed to be
sub-sublet, and Sub-subtenant shall have ten (10) days to exercise the Right of
First Offer. If Sub-subtenant does not notify Sub-sublessor in writing of its
election to exercise the Right of First Offer within such ten (10) day period,
then Sub-subtenant shall be deemed to have waived the Right of First Offer with
respect to the Additional Space of which it has been notified. If Sub-subtenant
exercises the Right of First Offer, Sub-subtenant shall sub-sublease from
Sub-sublessor the entire Additional Space described in the Notice on the terms
and conditions set forth in this Agreement, except that the Basic Rent payable
with respect to the Additional Space shall be the amount of Basic Rent per
rentable square foot being paid for the Demised Premises by Sub-sublandlord at
the time Sub-subtenant exercises the Right of First Offer.
37. REPRESENTATIONS BY SUB-SUBLESSOR. Sub-sublessor represents and warrants
that(a) to Sub-sublessor's best knowledge, the copy of the Main Lease and Main
Sublease attached hereto as "Exhibit B" is true and complete copy of the Main
Lease and the Main Sublease and, except as set forth therein, there are no
additional agreements between Landlord and Sub-sublessor with respect to the
Demised Premises, and (b) to Sub-sublessor's best knowledge, there are no
defaults on the part of Landlord, Sublessor or Sub-sublessor under the Main
Sublease and, to Sub-sublessor's best knowledge, no event has occurred which,
with the giving of notice and the passage of time, would constitute a default
under the Main Sublease.
38. COUNTERPARTS; FACSIMILE SIGNATURES. This Agreement may be executed in
counterparts, each of which shall be fully effective and all of which together
shall constitute one and the same instrument. This Agreement shall be effective
upon delivery by each party to the other of a facsimile of an executed signature
page, subject to delivery of a signature page bearing an original signature with
24 hours.
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IN WITNESS WHEREOF, Sub-sublessor and Sub-subtenant have hereunto executed
this Agreement as of the day and year first above written.
Countrywide Home Loans, Inc.,
a New York corporation
By:
-----------------------------------------
Name:
---------------------------------------
Its:
----------------------------------------
Bill Gross' idealab!
a California corporation
By: /s/ MARCIA GOODSTEIN
-----------------------------------------
Name: Marcia Goodstein
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Its: Chief Operating Officer
----------------------------------------
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