SUBLEASE
THIS SUBLEASE (this "Sublease") is made and entered into this 1st day of
March, 1999 by and between XXXXXXXX WORLDWIDE, Inc., A California corporation
("Sublessor"), and Viant Corporation, a CALIFORNIA corporation ("Sublessee").
RECITALS
A. Sublessor entered into that certain Lease dated September 15, 1997
(the "Master Lease"), with Xxxx Properties I, L.L.C., a Delaware limited
liability company ("Master Lessor"), for the lease of approximately 30,634
square feet (the "Master Premises") in that certain building located at 0000
Xxxxxxxx Xxxxxxxxx, Xxxxx Xxxxxx, Xxxxxxxxxx (the "Building"). A copy of the
Master Lease is attached hereto as Exhibit "A".
B. Sublessor desires to sublease to Sublessee a portion of the Master
Premises consisting of approximately 3,155 rentable square feet (the
"Sublease Premesis"), as depicted on Composite Drawing, Floor 3 (suite 320)
attached hereto pursuant to the provisions hereof.
NOW, THEREFORE, the parties agree as follows:
1. SUBLEASE. Subject and pursuant to the provisions hereof, Sublessor
subleases to Sublessee, and Sublessee subleases from Sublessor, the Sublease
Premises.
2. TERM. The term of this Sublease shall be month to month with a three
(3) month minimum term, commencing on March 1, 1999. During the three (3)
month period beginning June 1, 1999 and ending August 31, 1999, sublessee
shall have the right to terminate with thirty (30) days prior written notice.
Thereafter, the lease shall continue on a month-to-month basis with both
parties having the right to terminate by giving (30) days prior written
notice.
3. RENT
3.01 SUBLEASE RENT. During the term of this Sublease and commencing
as of the Commencement Date, Sublessee shall pay to Sublessor as rent for
the Sublease Premises the sum of Two Dollars ($2.00) per rentable square foot
as "Base Rent" (as defined in Article 3 of the Master Lease) (the "Sublease
Rent") pursuant to the terms and provisions of Article 3 of the Master Lease;
provided, however, that Sublessee's obligation to pay Sublease Rent shall
commence as of the Commencement Date and shall not xxxxx in any manner
whatsoever (specifically, the terms and conditions of Section 3.2 of the
Master Lease shall not apply to Sublessee's obligations to pay Sublease Rent)
and Sublessee shall pay Sublessee's Share of the sums that would otherwise be
payable by Sublessor under the Master Lease if the provisions of Section 3.2
of the Master Lease were not applicable. Sublease Rent shall be paid to
Sublessor without demand, deduction, set-off or counterclaim, in advance on the
first day of each calendar month during the term of this Sublease, and in the
event of a partial rental month, rent shall be
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prorated on the basis of a thirty (30) day month. Sublessee shall pay to
Sublessor upon the execution hereof the first full monthly installment of
Sublease Rent.
4. SECURITY DEPOSIT. Sublessee shall deposit with Sublessor upon
Sublessee's execution hereof a sum in the amount of Six Thousand Three Hundred
Ten Dollars ($6,310.00) ("Deposit") as security for Sublessee's faithful
performance of Sublessee's obligations hereunder. If Sublessee fails to pay
rent or other charges due hereunder, or otherwise defaults with respect to
any provision of this Sublease, Sublessor may use, apply or retain all or any
portion of the Deposit for the payment of any rent or other charge in default
or for the payment of any other sum to which Sublessor may become obligated
by reason of Sublessee's default, or to compensate Sublessor for any loss or
damage which Sublessor may suffer thereby. If Sublessor so uses or applies
all or any portion of the Deposit, Sublessee shall within ten (10) days after
written demand therefor deposit cash with Sublessor in an amount sufficient
to restore the Deposit to its full amount and Sublessee's failure to do so
shall be a material breach of this Sublease. Sublessor shall not be required
to keep the Deposit separate from its general accounts. If Sublessee
performs all of Sublessee's obligations hereunder, the Deposit, or so much
thereof as has not theretofore been applied by Sublessor, shall be returned,
without payment of interest or other incurment for its use to Sublessee (or
at Sublessor's option, to the last assignee, if any, of Sublessee's interest
hereunder) at the expiration of the term hereof, and after Sublessee has
vacated the Sublease Premises. No trust relationship is created herein
between Sublessor and Sublessee with respect to the Deposit.
5. USE. Sublessee shall use and occupy the Sublease Premises only for
general office use and for no other purpose.
6. MASTER LEASE.
6.01 COMPLIANCE WITH MASTER LEASE.
(a) DEFINITIONS. Except as otherwise expressly provided herein,
during the Term and for all subsequent periods with respect to obligations
arising prior to the termination of the Sublease, Sublessee shall comply with
and perform, for the benefit of Master Lessor and Sublessor, all of the
terms, covenants, conditions and obligations of the "tenant under the Master
Lease allocable or applicable to the Sublease Premises. Such terms,
covenants, conditions and obligations shall, unless the context of the Master
Lease indicates otherwise, be applied with the terms "Sublessor" and
"Sublessee" substituted respectively for "Landlord" and "Tenant" and with the
term "Premises" under the Master Lease meaning the Sublease Premises demised
hereunder. Sublessee acknowledges that it has read the attached copy of the
Master Lease and agrees that this Sublease shall be subject and subordinate
to the provisions thereof. Sublessee shall not do, permit or suffer any act,
occurrence or omission which if done, permitted or suffered by Sublessor would
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be (with notice, the passage of time or both) in violation of or a default by
the tenant under the Master Lease, or could lead in any respect to the
termination of the Master Lease.
(b) CONSENTS. Sublessor shall use reasonable efforts to
obtain from the Master Lessor any approvals or consents reasonably requested
by Sublessee for any work, services, repairs or other performance to be
performed, from the Master Lessor under the Master Lease; provided, however,
in the case of legal proceedings requested by Sublessee to be instituted,
Sublessee shall indemnify, defend, protect and hold Sublessor harmless from
and against any legal fees and disbursements and all other costs, expenses,
liabilities, claims and obligations incurred by or asserted against Sublessor
in connection with any such proceeding.
6.02 INCORPORATION BY REFERENCE
(a) INCORPORATION. Subject to the provisions of this Section
6.02, the provisions of the Master Lease are hereby incorporated by this
reference; provided, however, that in the event that any provision of the
Master Lease shall explicitly conflict with the provisions of this Sublease,
the provisions of this Sublease shall prevail.
(b) DELETIONS. Notwithstanding any provision of this Sublease
to the contrary, Sublessee shall not be responsible, and does not expressly
assume the following provisions of the Master Lease: Items C, H, M, N, P, Q,
R, W, X, Y, BB, CC, DD, EE, FF, GG, HH. II of Section I, Sections II and
III, Sections 3.1, 3.2, 3.3, 4, 22.1.C, 29, and the Work Letter (Exhibit "A").
7. MODIFICATIONS TO CERTAIN INCORPORATED PROVISIONS.
Notwithstanding the incorporation of the provisions of the Master Lease
provided in Paragraph 6, certain provisions of the Master Lease as the same
apply to this Sublease are modified as follows:
7.01 NOTICES. Notices which are required to be sent to
"Tenant" or "Landlord" under the Master Lease (if such notices are
applicable to the Sublease Premises) shall be sent to the following addresses:
Notices To Sublessor: 0000 Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxxx Xxxxxxxx
Notices To Sublessee: 0000 Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxxx
7.02 CONDITION OF SUBLEASE PREMISES.
(a) Sublessee has inspected the Sublease Premises and all
improvements located thereon, and has agreed to accept the Sublease Premises
in an "AS-IS" condition, in its condition existing as of the date of this
Sublease subject to all applicable municipal, county, state and federal laws,
ordinances and regulations governing and regulating the use and occupancy of
the Sublease Premises, and accepts the Sublease subject thereto and to all
matters disclosed thereby, without warranty or representation concerning the
same. Sublessor
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hereby acknowledges that the Sublease Premises are to be delivered to
Sublessee at the commencement of the term of the Sublease, unoccupied, and in
a broom-swept condition, with standard lighting reinstalled.
7.03 ASSIGNMENT, SUBLETTING AND ENCUMBRANCE. Sublessee shall not
voluntarily or involuntarily assign, sublet, mortgage or otherwise encumber
all or any portion of its interest in this Sublease or in the Sublease
Premises, without obtaining the prior written consent of Sublessor thereto,
which Sublessor may grant or withhold in Sublessor's sole and absolute
discretion. Any assignment, subletting, mortgage or other encumbrance
attempted by Sublessee to which Sublessor has not consented in writing shall
be null and void and of no effect.
7.04 ALTERATIONS
(a) ALTERATIONS AND IMPROVEMENTS BY SUBLESSEE. Sublessee shall
not make any alterations, additions or improvements to the Sublease Premises
(collectively "Alterations") without obtaining the prior written consent of
Sublessor thereto, which Sublessor may grant or withhold, and to which
Sublessor may impose any conditions in Sublessor's sole discretion. All such
Alterations shall be constructed only after necessary permits, licenses and
approvals have been obtained from appropriate governmental agencies and all
improvements shall be constructed as to conform to all relevant codes,
regulations, and ordinances. All such Alterations shall be made at
Sublessee's sole cost and shall be diligently prosecuted to completion. Any
contractor or person making such Alterations shall first be approved in
writing by Sublessor. Upon the expiration or earlier termination of this
Sublease, Sublessor may elect to have Sublessee either (i) surrender with the
Sublease Premises any or all of such Alterations as Sublessor shall determine
(except personal property as provided in Subsection (b) below, in which case,
such Alterations shall become the property of Sublessor, or (ii) promptly
remove any or all of such Alterations designated by Sublessor to be removed,
in which case, Sublessee shall repair and restore the Sublease Premises to
its original condition as of the Commencement Date, reasonable wear and tear
excepted. Sublessee shall permit no mechanic's or other liens to be recorded
against the Sublease Premises. Should a lien be made or filed against the
Sublease Premises, Master Premises or real property on which the Sublease
Premises are situated, Sublessee at its sole cost, shall bond against or
discharge said lien within 10 days after Sublessor's or Master Lessor's
request to do so.
(b) REMOVAL OF PROPERTY. All articles of personal property,
and all business and trade fixtures, machinery and equipment, cabinet work,
furniture and movable partitions, if any, owned or installed by Sublessee at
its expense in the Sublease Premises shall be and remain the property of
Sublessee and may be removed by Sublessee at any time, provided that
Sublessee, at its expense, shall repair any damage to the Sublease Premises
caused by such removal or by the original installation. Sublessor may elect
to require Sublessee to remove all or any part of the aforementioned property
at the expiration or sooner termination of the Sublease, in which event such
removal shall be done at Sublessee's expense, and Sublessee shall at its own
expense repair any damage to the Sublease Premises caused by such removal
prior to the termination of this Sublease.
7.05 HOLDING OVER. If Sublessee holds over after the expiration
or earlier termination of this Sublease, with or without the express or
implied consent of Sublessor, then at the option of Sublessor, Sublessee
shall become and be only a month-to-month tenant at a rent equal to One
Hundred and Fifty percent (150%) of the Sublease Rent payable by Sublessee
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immediately prior to such expiration or termination, and otherwise upon the
terms, covenants and conditions herein specified. Notwithstanding any
provision to the contrary contained herein, (i) Sublessor expressly reserves
the right to require Sublessee to surrender possession of the Sublease
Premises upon the expiration of the Term or upon the earlier termination
hereof and the right to assert any remedy at law or in equity to evict
Sublessee and/or collect damages in connection with any such holding over,
and (ii) Sublessee shall indemnify, defend and hold Sublessor harmless from
and against any and all claims, demands, actions, losses, damages,
obligations, costs and expenses, including, without limitation, attorneys'
fees incurred or suffered by Sublessor by reason of Sublessee's failure to
surrender the Sublease Premises on the expiration or earlier termination of
this Sublease in accordance with the provisions of this Sublease.
7.06 PARKING. Sublessee and Sublessee's employees shall have the
right to lease up to Two (2) spaces ("Sublessee's Parking Spaces") in the
Building's Garage (as such term is defined in Item W of the Master Lease).
Sublessee shall pay Sublessor the sum of Eighty-Five Dollars ($85.00) per
space per month as the parking charge for the sublease of Sublessee's Parking
Spaces.
8. ENVIRONMENTAL MATTERS.
8.01 HAZARDOUS MATERIAL. As used herein, the term "Hazardous
Material" means any hazardous, toxic, explosive or radioactive substance,
material or waste which is or becomes regulated by any local governmental
authority, the State of California or the United States Government,
including, without limitation, any material or substance which is (i) defined
or listed as a "hazardous waste," "extremely hazardous waste," "restricted
hazardous waste," "hazardous substance," "hazardous material," "pollutant" or
"contaminant" under any applicable federal, state or local law or
administrative code promulgated thereunder, (ii) petroleum, (iii) asbestos,
(iv) flammable explosives, (v) radioactive materials or (vi) polychlorinated
biphenyls.
8.02 SUBLESSEE'S USE OF SUBLEASE PREMISES. Sublessee hereby agrees
that all operations or activities upon, or any use or occupancy of the
Sublease Premises, or any portion thereof, by Sublessee, its assignees,
sub-sublessees, and their respective agents, servants, employees,
representatives and contractors (collectively, herein "Sublessee
Affiliates"), throughout the term of this Sublease, shall be in all respects
in compliance with all federal, state and local laws then governing or in any
way relating to the generation, handling, manufacturing, treatment, storage,
use, transportation, release, spillage, leakage, dumping, discharge or
disposal of any Hazardous Material.
8.03 INDEMNIFICATION OF SUBLESSOR. Sublessee shall indemnify,
defend, protect and hold Sublessor and its partners, Shareholders, officers,
directors, employees, trustees, successors, assigns, agents, servants,
affiliates, representatives, and contractors (collectively, herein "Sublessor
Affiliates") harmless from any and all claims, actions, administrative
proceedings (including informal proceedings), judgments, damages, punitive
and consequential damages, penalties, fines, costs, liabilities, interest or
losses, including reasonable attorneys' fees and expenses, consultant fees,
and expert fees, together with all other costs and expenses of any kind of
nature that arise during or after the term of this Sublease directly or
indirectly from, attributable to or in connection with the presence,
suspected presence, release or suspected release of any Hazardous Material in
or into the air, soil, surface, surface water or groundwater at, on, about,
under or within the Sublease Premises or the Master Premises, or any portion
thereof, by Sublessee, Sublessee Affiliates, or any invitee of Sublessee.
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8.04 REMEDIAL WORK. In the event any investigation or monitoring of
site conditions or any clean-up, containment, restoration, removal or other
remedial work (collectively, the "Remedial Work") is required under any
applicable federal, state or local law, by any judicial order, or by any
governmental entity as the result of operations or activities upon, or any
use or occupancy of any portion of the Sublease Premises by Sublessee or
Sublessee Affiliates, Sublessee shall perform or cause to be performed (or at
Sublessor's election, permit Sublessor to perform or cause to be performed at
Sublessee's expense) the Remedial Work in compliance with such law or order.
All Remedial Work shall be conducted strictly in accordance with a written
remediation plan approved in advance in writing by both Sublessor and all
appropriate governmental agencies and shall be other wise satisfactory to
Sublessor and such agencies.
8.05 SURVIVABILITY. Each of the covenants and agreements of
Sublessee set forth in this Section 8 shall survive the expiration or earlier
termination of this Sublease.
9. INDEMNIFICATION; EXCULPATION
9.01 NON-LIABILITY OF SUBLESSOR. Sublessor shall not be liable to
Sublessee and Sublessee hereby waives and releases all claims against
Sublessor and Sublessor Affiliates (as defined in Section 8.03 above) for
injury or damage to any person or property occurring or incurred in
connection with or in any way relating to the Sublease Premises or the Master
Premises. Without limiting the foregoing, neither Sublessor nor any of the
Sublessor Affiliates shall be liable for and there shall be no abatement of
Rent for (i) any damage to Sublessee's property stored with or entrusted to
Sublessor or Sublessor Affiliates, (ii) loss of or damage to any property by
theft or any other wrongful or illegal act, or (iii) any injury or damage to
persons or property resulting from fire, explosion, falling plaster, steam,
gas electricity, water or rain which may leak from any part of the Sublease
Premises or the Master Premises or from the pipes, appliances, appurtenances
or plumbing works therein or from the roof, street or sub-surface or from any
other place or resulting from dampness or any other cause whatsoever or from
the acts or omissions of other sublessees, occupants or other visitors to the
Sublease Premises or the Master Premises or from any other cause whatsoever,
or (iv) any latent or other defect in the Sublease Premises or the Master
Premises.
9.02 INDEMNIFICATION OF SUBLESSOR. Sublessee shall indemnify,
defend, protect and hold Sublessor harmless from and against any and all
claims, suits, judgments, losses, costs, obligations, damages, expenses,
interest and liabilities, including, without limitation, actual attorneys'
fees and costs, incurred or asserted in connection with (j) injury or damage
to any person or property whatsoever arising out of or in connection with this
Sublease, the Sublease Premises or Sublessee's activities in or about the
Sublease Premises including, without limitation, when such injury or damage
has been caused in whole or in part by the act, negligence, fault or omission
of Sublessee, its agents, servants, contractors, employees, representatives,
licensees or invitees, or (ii) any breach or default by Sublessee of its
obligations under this Sublease. The provisions of this Section 9.02 shall
survive the expiration or earlier termination of this Sublease.
9.03 MASTER LESSOR DEFAULT; CONSENTS. Notwithstanding any provision
of this Sublease to the contrary, (a) Sublessor shall not be liable or
responsible in any way for any loss, damage, cost, expense, obligation or
liability suffered by Sublessee by reason or as the result of any breach,
default or failure to perform by the Master Lessor under the Master Lease and
(b) whenever the consent or approval of Sublessor and Master Lessor is required
for a
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particular act, event or transaction (i) any such consent or approval by
Sublessor shall be subject to the consent or approval of Master Lessor and
(ii) should Master Lessor refuse to grant such consent or approval, under all
circumstances, Sublessor shall be released from any obligation to grant its
consent or approval.
9.04 NON-RECOURSE LIABILITY. Sublessor shall in no event or at any
time be personally liable for the payment or performance of any obligation
required or permitted of the Sublessor under this Sublease or under any
document executed in connection herewith. In the event of any actual or
alleged failure, breach or default by Sublessor under this Sublease or any
such document, the sole recourse of Sublessee shall be against the interest
of Sublessor in the Master Premises.
10. MISCELLANEOUS
10.01 CONFIDENTIALITY. Sublessee agrees that (i) the terms and
provisions of this Sublease are confidential and constitute proprietary
information of Sublessor and (ii) Sublessee shall not disclose, and it shall
cause their respective partners, officers, directors, shareholders,
employees, brokers, attorneys to not disclose any term of provision of this
Lease to any person without first obtaining the prior written consent of
Sublessor.
10.02 COUNTERPARTS. This Sublease may be executed in one or more
counterparts by the parties hereto. All counterparts shall be construed
together and shall constitute one agreement.
10.03 SOLE AGREEMENT. This Sublease contains all of the
understandings of the parties and all representations made by either party to
the other are merged herein.
10.04 MODIFICATION. This Sublease may not be modified in any respect
except by a document in writing executed by both parties hereto or their
respective successors.
10.05 ATTORNEYS' FEES. If any party commences an action against the
other, the prevailing party shall be entitled to recover from the losing
party reasonable attorneys' fees and costs.
10.06 BINDING EFFECT. This Sublease shall be binding on and inure to
the benefit of the parties and their respective heirs, successors and assigns.
10.07 KITCHEN LUNCHROOM USE. An additional monthly fee of ONE
HUNDRED FIFTY Dollars ($150.00) for use of kitchen amenities and
refreshments. Fees shall be paid to Sublessor without demand, deduction,
set-off or counterclaim in advance on the first day of each calendar month
during the term of this sublease. In the event of a partial rental month,
fees shall be prorated on the basis of the thirty (30) day month. Sublessee
shall pay to Sublessor upon the execution hereof the first full month.
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IN WITNESS WHEREOF, the parties hereunto set their hand on the date first
above written.
SUBLESSOR SUBLESSEE
XXXXXXXX WORLDWIDE, INC. Viant Corporation
a California corporation a California corporation
By: By: /s/ M. Xxxxxx Xxxxxxx
----------------------------- ---------------------------------
Name: Name: XXXXXX XXXXXXX
Its: Its: Vice-President
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