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EXHIBIT 10.9
SUBLEASE AGREEMENT
THIS SUBLEASE AGREEMENT (this "Agreement") is dated as of February 1,
1999, and is made by and between Xxxx Xxxxx' idealab!, a California corporation
("Sublessor") and XxXx.xxx, Inc., a Delaware corporation ("Sublessee").
Sublessor and Sublessee hereby agree as follows:
1. Recitals: This Agreement is made with reference to the fact that
Typecraft, Inc., as landlord ("Master Lessor"), and Sublessor, as tenant,
entered into that certain lease, dated as of January 24, 1998 (the "Master
Lease"), with respect to approximately 10,506 square feet of premises (the
"Premises") located at 000 X. Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx. A copy of the
Master Lease is attached hereto as Exhibit A and incorporated by reference
herein.
2. Premises: Sublessor hereby subleases to Sublessee, and Sublessee
hereby subleases from Sublessor, all of the Premises (hereinafter, the
"Subleased Premises"). This Agreement shall be at all times subject and
subordinate to the Master Lease.
3. Term: The term of this Agreement (the "Term") shall commence on
February 1, 1999 (the "Commencement Date") and terminate on January 31, 2003
(the "Expiration Date"), unless this Agreement is sooner terminated pursuant to
its terms or the Master Lease is sooner terminated pursuant to its terms.
4. Rent:
A. Monthly Rent. Sublessee shall pay to Sublessor as rent for
the Subleased Premises ("Monthly Rent") for each month during the Term, the
following amounts: (i) Twenty-One Thousand Twelve Dollars ($21,012) per month
for the first 12 months of the Term; (ii) Twenty-Two Thousand Sixty-Two Dollars
and 60/100 ($22,062.60) per month for the 13th - 24th months of the Term; (iii)
Twenty-Three Thousand One Hundred Thirteen Dollars and 20/100 ($23,113.20) per
month for the 25th - 36th months of the Term; and (iv) Twenty-Four Thousand One
Hundred Sixty-Three Dollars and 80/100 ($24,163.80) per month for the 37th -
48th months of the Term. Monthly Rent shall be paid on or before the first (1st)
day of each month. Monthly Rent for any period during the Term hereof which is
for less than one (1) month of the Term shall be a pro rata portion of the
monthly installment. Monthly Rent shall be payable without notice or demand and
without any deduction, offset, or abatement, in lawful money of the United
States of America. Monthly Rent and Additional Rent (as defined below) shall be
paid directly to Sublessor at 000 X. Xxxxx Xxxxxx, Xxxxxxxx, XX 00000, Attn.:
Accounting, or such other address as may be designated in writing by Sublessor.
X. Xxxxx Lease. The Monthly Rent shall constitute the entire
rental payable by Sublessee to Sublessor for the use of the Subleased Premises.
Under no circumstance shall Sublessee be responsible for payment of any
operating expenses, costs of maintenance, repair and improvements, taxes,
assessments, insurance costs, utility charges or any other amounts in connection
with the use or occupancy of the Subleased Premises, whether or not any such
amounts are payable by Sublessor under the Master Lease.
C. Additional Rent. All monies other than Monthly Rent
required to be paid by Sublessee under this Agreement shall be deemed additional
rent ("Additional Rent"). Monthly Rent and Additional Rent hereinafter
collectively shall be referred to as "Rent."
5. Late Charge: If Sublessee fails to pay to Sublessor any amount due
hereunder within five (5) business days after the due date, Sublessee shall pay
Sublessor upon demand interest on all amounts due, at a rate equal to the lesser
of the prime rate quoted by the Bank of America or the maximum rate allowed by
law (the "Interest Rate"), from the fifth (5th) business day after the due date
to and including the date of the payment.
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6. Use: Sublessee may use the Subleased Premises only for the uses
permitted under the Master Lease. Sublessee shall promptly and properly observe
and comply with all laws with respect to Sublessee's use of the Subleased
Premises. Notwithstanding the foregoing, Sublessee shall not be required to
comply, or pay the cost of complying, with any laws requiring the construction
of alterations or improvements to the Subleased Premises, unless due to
Sublessee's particular use of the Subleased Premises. Sublessee shall comply
with all restrictions set forth in the Master Lease and all reasonable rules and
regulations promulgated from time to time by Master Lessor and Sublessor.
7. Repairs: Sublessor shall maintain in good order and condition the
Subleased Premises.
8. Improvements: No alterations or improvements shall be made to the
Subleased Premises, except in accordance with the Master Lease, and with the
prior written consent of Sublessor.
9. Services: Sublessor shall provide or cause Master Lessor to
provide to the Premises, twenty-four (24) hours per day, seven (7) days per
week, water, gas, electricity, sewer service, daily janitorial service and waste
pick-up, and any other utilities or services normally furnished in comparable
premises in amounts suitable for the permitted use of the Premises. Sublessor
shall provide or cause Master Lessor to provide to the Premises heating,
ventilating and air conditioning ("HVAC") (i) during normal business hours, and
(ii) after hours and on weekends, to the same extent as Sublessor provides HVAC
service to its employees.
10. Indemnity:
A. Except to the extent caused by the negligence or willful
misconduct of Sublessor, its agents, employees or invitees, Sublessee shall
indemnify, defend with counsel reasonably acceptable to Sublessor, protect and
hold Sublessor harmless from and against any and all claims, liabilities,
judgments, causes of action, damages, costs and expenses (including reasonable
attorneys' and experts' fees), caused by or due to: (i) the negligence or
willful misconduct of Sublessee or its agents, employees or invitees; or (ii) a
breach of Sublessee's obligations under this Agreement. Sublessee's
indemnification of Sublessor shall survive termination of this Agreement.
B. Except to the extent caused by the negligence or willful
misconduct of Sublessee, its agents, employees or invitees, Sublessor shall
indemnify, defend with counsel reasonably acceptable to Sublessee, protect and
hold Sublessee harmless from and against any and all reasonable claims,
liabilities, judgments, causes of action, damages, costs and expenses (including
reasonable attorneys' and experts' fees) caused by or due to: (i) the negligence
or willful misconduct of Sublessor or its agents, employees or invitees; or (ii)
a breach of Sublessor's obligations under this Agreement or under the Master
Lease. Sublessor's indemnification of Sublessee shall survive termination of
this Agreement.
11. Insurance: Sublessee shall keep in full force and effect, at
Sublessee's sole cost and expense, a commercial general liability policy of
insurance and a property insurance policy as required under Sections 8.2 and 8.4
of the Master Lease. The liability policy shall name Sublessor and Master Lessor
as additional insureds.
12. Release and Waiver of Subrogation: Sublessor and Sublessee hereby
release each other, and their respective agents, employees, subtenants, and
contractors, from all liability for damage to any property that is caused by or
results from a risk which is actually insured against or which would normally be
covered by "all risk" property insurance, without regard to the negligence or
willful misconduct of the entity so released. Each party shall use its best
efforts to cause each insurance policy it obtains to provide that the insurer
thereunder waives all right of recovery by way of subrogation as required herein
in connection with
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any injury or damage covered by the policy. If the insurance policy cannot be
obtained with the waiver of subrogation, or if the waiver of subrogation is
available only at additional cost and the party for whose benefit the waiver is
not obtained does not pay the additional cost, then the party obtaining the
insurance immediately shall notify the other party.
13. Damage: If the Premises, or any part thereof, are damaged due to
any peril, Sublessee shall be entitled to an abatement of all Rent to the extent
of the interference with Sublessee's use of the Subleased Premises occasioned
thereby. If the Premises are damaged by any peril and the repair would
reasonably be expected to take more than one hundred eighty (180) days, then
Sublessee shall have the option to terminate this Agreement by delivery of
written notice thereof to Sublessor. Sublessee shall have the right to terminate
this Sublease, or to keep this Sublease in effect by offering to pay repair
costs or by exercising its option to extend, as provided in Section 9 of the
Master Lease.
14. Assignment and Subletting: Sublessee may not assign this
Agreement, sublet the Subleased Premises or permit any use of the Subleased
Premises by another party (all as described in Section 12.1 of the Master Lease)
(collectively, a "Transfer") except in compliance with the terms of Section 12
of the Master Lease, and without the prior written consent of Sublessor and, if
required under the Master Lease, Master Lessor. Sublessor may withhold its
consent to any such Transfer in its sole and absolute discretion; provided,
however, that Sublessor shall not unreasonably withhold its consent to a
Transfer (a) to an entity controlling, controlled by or under common control
with Sublessee, an entity related to Sublessee by merger, consolidation, stock
purchase or other corporate reorganization or a purchaser of substantially all
of Sublessee's assets or (b) in connection with the transfer of Sublessee's
stock or a change of control.
15. Default: Sublessee shall be in default of its obligations under
this Agreement if any of the following events occur:
A. Sublessee fails to pay any Rent when due, when such failure
continues for thirty (30) days after the date that any such sum is due; or
B. Sublessee fails to perform any term, covenant or condition
of this Agreement (except those requiring payment of Rent) and fails to cure
such breach within thirty (30) days after delivery of a written notice
specifying the nature of the breach; provided, however, that if more than thirty
(30) days reasonably are required to remedy the failure, then Sublessee shall
not be in default if Sublessee commences the cure within the thirty (30) day
period and thereafter diligently endeavors to complete the cure; or
C. Sublessee commits any other act or omission which
constitutes a default under the Master Lease, which has not been cured after
delivery of written notice and passage of the applicable grace period provided
in the Master Lease.
16. Remedies: In the event of any default by Sublessee, Sublessor
shall have all remedies provided under the Master Lease and by applicable law.
17. Parking: Sublessee shall have the right to use, throughout the
Term, twenty (20) parking spaces in Xxxxxx'x Garage as provided in Section 49 of
the Master Lease at a monthly rate of Twenty-Three Dollars ($23) per parking
space, as such monthly rate may be adjusted from time to time by Xxxxxx'x
Garage. Sublessee shall have the right to negotiate directly with the owner of
Xxxxxx'x Garage for the use of additional parking spaces upon terms to be agreed
upon by Sublessor and the owner of Xxxxxx'x Garage.
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18. Signage: Sublessor shall have the right to display outdoor signage
within the guidelines of the City of Pasadena, subject to the terms and
conditions of the Master Lease.
19. Broker: Sublessor and Sublessee each represent to the other that
they have dealt with no real estate brokers, finders, agents or salesmen in
connection with this transaction.
20. Notices: Unless at least five (5) days' prior written notice is
given in the manner set forth in this section, the address of each party shall
be that address set forth below their signatures at the end of this Agreement.
All notices, demands or communications in connection with this Agreement shall
be personally delivered or properly addressed and deposited in the mail
(certified, return receipt requested, and postage prepaid). Notices shall be
deemed delivered (a) upon receipt, if personally delivered, or (b) three (3)
business days after mailing, if mailed as set forth above. Notwithstanding the
foregoing, all notices given to Master Lessor under the Master Lease shall be
considered delivered only when delivered in accordance with the Master Lease.
21. Sublessor's Obligations with Respect to the Master Lease:
Sublessor shall fully perform all of its obligations under the Master Lease to
the extent Sublessee has not expressly agreed to perform such obligations under
this Agreement. Sublessor shall not terminate the Master Lease, amend or waive
any provisions under the Master Lease or make any elections, exercise any right
or remedy and give any consent or approval under the Master Lease that would
materially adversely affect Sublessee's use of the Subleased Premises or
materially increase Sublessee's obligations or decrease Sublessee's rights under
this Agreement, without Sublessee's prior written consent. Sublessor, with
respect to the obligations of Master Lessor under the Master Lease, shall use
Sublessor's diligent good faith efforts to cause Master Lessor to perform such
obligations for the benefit of Sublessee. Such diligent good faith efforts shall
include, without limitation, upon Sublessee's written request, immediately
notifying Master Lessor of its nonperformance under the Master Lease and
requesting that Master Lessor perform its obligations under the Master Lease.
22. Quiet Enjoyment: Sublessee shall peacefully have, hold and enjoy
the Subleased Premises, subject to the terms and conditions of this Agreement,
provided that there is not a default by Sublessee. In the event, however, that
Sublessor defaults in the performance or observance of any of Sublessor's
remaining obligations under the Master Lease or fails to perform Sublessor's
stated obligations under this Agreement, then Sublessee shall give Sublessor
notice specifying in what manner Sublessor has defaulted, and if such default
shall not be cured by 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 Sublessor
commences to cure such default within such thirty (30) day period and proceeds
diligently thereafter to effect such cure as quickly as possible), then
Sublessee shall be entitled to cure such default and promptly collect from
Sublessor Sublessee's reasonable expenses in so doing (including, without
limitation, reasonable attorneys' fees and court costs). Sublessee shall not be
required, however, to wait the entire cure period described herein if earlier
action is required to comply with the Master Lease or with any applicable
governmental law, regulation or order.
23. Option to Extend: Sublessor hereby grants to Sublessee one (1)
option (the "Option") to extend the Term of this Agreement for an additional
term of four (4) years, commencing upon the expiration of the initial Term, upon
the terms and conditions set forth in this section. Sublessee may exercise the
Option by giving Sublessor written notice of its intention not less than one
hundred (100) days prior to the expiration of the initial Term of this Sublease.
If the Option is exercised, the monthly rent for the Premises shall be at a rate
to be agreed upon by the parties based on the rent payable by Sublessor under
the Master Lease and the additional costs to Sublessor due to the gross nature
of the Sublease and Sublessor's construction of the Tenant Improvements. All
other terms and conditions contained in this Agreement, as the
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same may be amended from time to time by the parties in accordance with the
provisions hereof, shall remain in full force and effect and shall apply during
the Option term.
24. Tenant Improvements: Prior to the Commencement Date, Sublessor
constructed, at Sublessor's sole cost and expense, the tenant improvements in
the Subleased Premises described on Exhibit B hereto (the "Tenant
Improvements"), in accordance with more detailed plans and specifications
mutually agreed upon the paries. In addition, Sublessor has provided, or shall
provide, to Sublessee an allowance in the amount of Fifty Thousand Dollars
($50,000), to be used by Sublessee to construct additional capital improvements
in the Subleased Premises.
25. Other Sublease Terms: The terms and conditions of this Sublease
shall also include all of the terms of the provisions of the Master Lease set
forth below and such terms are incorporated into this Sublease as if fully set
forth herein, except that each reference in such incorporated sections to
"Lease," "Premises," "Lessor" and "Lessee" shall be deemed a reference to
"Sublease," "Subleased Premises," "Sublessor" and "Sublessee, respectively,
except as otherwise expressly set forth herein. The following provisions of the
Master Lease shall be incorporated herein: Master Lease Sections 6.1, 6.2, 13.2,
14, 16, 25 and 43. Sublessee hereby expressly agrees to comply with all
provisions of the Master Lease which are incorporated hereunder and to perform
all the obligations on the part of Sublessee under the terms of the Master Lease
to the extent provided in this Sublease.
26. Miscellaneous: This Agreement shall in all respects be governed by
and construed in accordance with the laws of the state in which the Subleased
Premises are located. If any term of this Agreement is held to be invalid or
unenforceable by any court of competent jurisdiction, then the remainder of this
Agreement shall remain in full force and effect to the fullest extent possible
under the law, and shall not be affected or impaired. This Agreement may not be
amended except by the written agreement of all parties hereto. Time is of the
essence with respect to the performance of every provision of this Agreement in
which time of performance is a factor. Any executed copy of this Agreement shall
be deemed an original for all purposes. This Agreement shall, subject to the
provisions regarding assignment, apply to and bind the respective heirs,
successors, executors, administrators and assigns of Sublessor and Sublessee.
The language in all parts of this Agreement shall in all cases be construed as a
whole according to its fair meaning, and not strictly for or against either
Sublessor or Sublessee. The captions used in this Agreement are for convenience
only and shall not be considered in the construction or interpretation of any
provision hereof. When a party is required to do something by this Agreement, it
shall do so at its sole cost and expense without right of reimbursement from the
other party unless specific provision is made therefor. Whenever one party's
consent or approval is required to be given as a condition to the other party's
right to take any action pursuant to this Agreement, then such consent or
approval shall not be unreasonably withheld or delayed. If either party brings
any action or legal proceeding with respect to this Agreement, the prevailing
party shall be entitled to recover reasonable attorneys' and experts' fees and
court costs.
27. Amended and Restated: This Agreement is given to amend, restate
and replace in its entirety that certain short form Lease Terms agreement dated
October 7, 1998 executed by Sublessor and Sublessee with respect to the
Subleased Premises.
28. Early Termination Right: Sublessee shall have the right to
terminate this Sublease at any time during the Term, without any penalty, by
delivering written notice thereof to Sublessor not less than ninety (90) days
prior to such early termination date. From and after such early termination
date, the obligations of the parties hereunder shall terminate as if such early
termination date was the expiration date under this Sublease.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day first above written.
SUBLESSOR: SUBLESSEE:
XXXX XXXXX' IDEALAB!, XXXX.XXX, INC.,
a California corporation a Delaware corporation
By: /s/ Xxxxxx Xxxxxxxxx By: /s/ Xxxx Xxxxxx
--------------------------- ---------------------------
Name: Xxxxxx Xxxxxxxxx Name: Xxxx Xxxxxx
------------------------- -------------------------
Its: COO Its: CFO
-------------------------- --------------------------
Address: 000 X. Xxxxx Xxxxxx Address: 000 X. Xxxxx Xxxxxx
Xxxxxxxx, XX 00000 Xxxxxxxx, XX 00000
Attn.: Chief Financial Officer Attn.: Chief Financial Officer
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