EXHIBIT 10.21
ASSIGNMENT OF LEASE AND PROFIT SHARING AGREEMENT
This ASSIGNMENT OF LEASE AND PROFIT SHARING AGREEMENT ("AGREEMENT") is
made and entered into as of June 28, 2000, by and between XXXXXXX PROPERTIES,
L.P., a California limited partnership ("LANDLORD"), and INSWEB CORPORATION, a
Delaware corporation ("TENANT"), and XXXXXXX NORTHWEST, INC., a California
corporation ("ASSIGNEE").
R E C I T A L S :
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A. Landlord and Tenant entered into that certain Lease (the "LEASE"),
dated October 27, 1999, pursuant to which Landlord leased to Tenant and Tenant
leased from Landlord certain space located in the office building project
located at 959 and 000 Xxxxxx Xxxx, Xxx Xxxxxx, Xxxxxxxxxx.
B. The parties hereto desire to cause an assignment of the Lease to
Assignee and to otherwise agree upon certain terms, subject to and in accordance
with the terms and conditions set forth in this Agreement.
A G R E E M E N T :
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NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual covenants contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows.
1. TERMS. All undefined terms when used herein shall have the same
respective meanings as are given such terms in the Lease, unlessexpressly
provided otherwise in this Agreement.
2. ASSIGNMENT OF LEASE AND TERMINATION OF LEASE.
2.1 ASSIGNMENT OF LEASE. Tenant hereby assigns to Assignee all of
its right, title and interest in, to and under the Lease and the Premises, and
Assignee hereby accepts such assignment, assumes all of Tenant's obligations
under the Lease, agrees to be bound by all of the provisions thereof and to
perform all of the obligations of the tenant thereunder from and after the
effective date hereof; provided, however, that Landlord and Tenant hereby agree
that, notwithstanding anything in the Lease to the contrary, Assignee shall have
no obligation following the date hereof to pay any "Rent" due under the Lease.
Accordingly, following the date hereof, Tenant shall have no obligations
(including, but not limited to, no obligation to pay rent, nor any other amounts
due) nor any possessory or other rights under the Lease, regardless
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of any defaults by Assignee. Assignee shall accept the Premises in its existing,
"as is" condition as of the date of this Agreement. Landlord hereby consents to
the foregoing assignment.
2.2 OPTION TO TERMINATE LEASE. Landlord shall have the right, at
Landlord's sole option, at any time following the date hereof, to terminate this
Lease upon notice (the "TERMINATION NOTICE") to Tenant and Assignee. Any such
termination shall be effective as of the date (the "TERMINATION DATE") set forth
in the Termination Notice. Accordingly, if Landlord delivers the Termination
Notice, Landlord, Tenant and Assignee hereby agree that the Lease shall
automatically terminate and be of no further force or effect and the parties
shall be relieved of their respective obligations under the Lease as of the
Termination Date; provided that the indemnification of Landlord by Tenant set
forth in the Lease in Section 8.C of the Lease and the indemnification of Tenant
by Landlord set forth in Section 8.D of the Lease shall survive the Termination
Date with respect to matters accruing thereunder prior to the date of this
Agreement; provided further that Landlord and Tenant hereby agree that Assignee
shall have no liability under Tenant's indemnification under Section 8.C of the
Lease which respect to matters accruing thereunder prior to the date of this
Agreement.
3. LANDLORD'S TERMINATION FEE. Within five (5) business days following
the Termination Date, Landlord shall pay to Tenant a non-refundable amount equal
to $1,000,000.00 (the "TERMINATION FEE").
4. RETURN OF LOC AND SECURITY DEPOSIT. Concurrently with the full
execution and delivery of this Agreement by Landlord, Tenant and Assignee,
Landlord shall deliver to Tenant (a) the "LOC," as that term is defined in the
Lease (and Landlord shall take such other actions as are reasonably necessary to
cancel the LOC), and (b) $225,000.00 of the security deposit held by Landlord
under the Lease. Notwithstanding anything contained herein to the contrary,
except as specifically set forth in Section 6.2, below, Tenant hereby
acknowledges and agrees that Landlord shall have no obligation to refund to
Tenant any amounts paid by Tenant under the Lease prior to the date hereof.
5. REPRESENTATIONS OF TENANT. Tenant represents and warrants to
Landlord and Assignee that (a) Tenant has not heretofore assigned or sublet all
or any portion of its interest in the Lease; (b) no other person, firm or entity
has any right, title or interest in the Lease; and (c) Tenant has the full
right, legal power and actual authority to enter into this Agreement and to
assign and terminate the Lease in accordance with the terms hereof without the
consent of any person, firm or entity. Tenant further represents and warrants to
Landlord and Assignee that as of the date hereof there are no, and as of the
Termination Date there shall not be any, mechanic's liens or other liens
encumbering all or any portion of the Premises, by virtue of any act or omission
on the part of Tenant, its predecessors, contractors, agents, employees,
successors or assigns (except Assignee). Notwithstanding the termination of the
Lease and the release of liability provided for herein, the representations and
warranties set forth in this Section 5 shall survive the Termination Date
and Tenant shall be liable to Landlord and Assignee for any
inaccuracy or any breach thereof.
6. TENANT'S FURNITURE.
6.1 REMOVAL OF TENANT'S FURNITURE. Landlord, Tenant and Assignee
hereby acknowledge and agree that Tenant shall be entitled to leave in the
Premises the furniture and non-permanently affixed equipment which is located in
the Premises as of the date hereof
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(collectively, the "FURNITURE") until the date (the "REMOVAL DATE") which is
five (5) business days following notice from Landlord or Assignee of
Landlord's or Assignee's election, in Landlord's or Assignee's sole and
absolute discretion, to have such Furniture removed by Tenant. Tenant hereby
acknowledges that Tenant shall be solely and exclusively responsible for
insuring the Furniture and that Landlord and Assignee shall have no
liability whatsoever resulting from any damage to the Furniture.
Notwithstanding anything in this Section 6.1 to the contrary, upon
reasonable prior notice to Landlord, Tenant shall be permitted to remove the
Furniture prior to the Removal Date. Tenant shall be responsible, at
Tenant's sole cost, for the repair of any and all damage to the Premises
resulting from Tenant's removal of Furniture in accordance with the terms of
this Section 6.1. In addition, Tenant shall comply with Landlord's
reasonable rules and regulations relating to the removal of the Furniture
pursuant to the terms of this Section 6.1. Tenant hereby authorizes Landlord
to offer to sell the Furniture to prospective tenants at Tenant's cost
($798,222.00) or such other amount as may be authorized by Tenant in
writing, provided that Landlord shall have no obligation to sell the
Furniture and shall have no liability whatsoever should Landlord fail to
sell the Furniture on Tenant's behalf.
6.2 RETURN OF REMAINING SECURITY DEPOSIT. Landlord and Tenant
hereby acknowledge and agree that, following Landlord's disbursement of the
portion of the security deposit held by Landlord under the Lease as set forth
in Section 4, above, Landlord shall hold a security deposit under the Lease
in the amount of $25,000.00 (the "REMAINING SECURITY DEPOSIT"). Within five
(5) business days following the date of Tenant's removal of or Landlord's
sale of the Furniture in accordance with the term of this Section 6, Landlord
shall return any unapplied portion of the Remaining Security Deposit to
Tenant.
7. TRANSFER PROFIT.
7.1 IN GENERAL. Subject to and in accordance with the terms of
this Section 7, Tenant shall be entitled to 30% of any "Transfer Profit," as
that term is defined, below, attributable to the period following the
Termination Date hereof through and including September 30, 2003 (the
"TRANSFER PROFIT TERMINATION DATE"). For purposes of this Agreement,
"TRANSFER PROFIT" shall mean the sum of (I) the excess, if any, of (a) the
aggregate base rent (specifically excluding operating expense reimbursements)
actually received by Landlord (and due Landlord) under all new leases entered
into by Landlord (each, a "NEW LEASE") relating to the portion of the
Premises located in Building A during each applicable calendar quarter prior
to the Transfer Profit Termination Date, over (b) the applicable quarterly
base rent for Building A set forth on EXHIBIT A, attached hereto, and (II)
the excess, if any, of (a) the base rent (specifically excluding operating
expense reimbursements) actually received by Landlord (and due Landlord)
under all New Leases relating to the portion of the Premises located in
Building B during each applicable calendar quarter prior to the Transfer
Profit Termination Date, over (b) the applicable quarterly base rent for
Building B set forth on EXHIBIT A, attached hereto, provided that the
Transfer Profit shall be due and paid to Tenant only to the extent that the
aggregate amount thereof exceeds the amount of the Termination Fee. Tenant's
right to Transfer Profit as set forth herein shall be inapplicable to (x) any
space which is included in a New Lease but relates to space outside of the
Premises, and (y) shall be inapplicable to any Transfer Profit attributable
to any period following the Transfer Profit Termination Date. Notwithstanding
anything contained herein to the contrary, Landlord and Tenant hereby
acknowledge and agree that no portion of any payment or security deposit
received by Landlord in connection with a settlement or other recovery from a
defaulting tenant under a New Lease whose lease shall, in connection with
such payment, be terminated, shall be
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included in amounts received by Landlord under items (I)(a) and (II)(a),
above; provided, however, that notwithstanding anything contained herein to
the contrary, if a tenant under a New Lease that is in arrears in its payment
of base rent pays an amount to Landlord, then to the extent such tenant is
then current in its monetary obligations to Landlord, Landlord shall apply
such amount retroactively to base rent previously due under the applicable
New Lease. Except as specifically set forth in this Section 7, Tenant shall
have no right to receive any Transfer Profit.
7.2 CALCULATION AND PAYMENT OF TRANSFER PROFIT. Transfer Profit
due to Tenant under this Section 7 shall (i) be calculated by Landlord, in
arrears, on a calendar quarter basis, and (ii) be paid to Tenant within
thirty (30) days following the expiration of each applicable calendar quarter.
7.3 TENANT'S RIGHT TO INFORMATION. Upon request from Tenant,
Landlord shall supply Tenant with reasonable supporting documentation
relating to the calculation of the Transfer Profit and shall certify that the
same is accurate, provided that no such information or certification shall be
delivered to Tenant unless and until Tenant shall execute a confidentiality
agreement reasonably acceptable to Landlord pursuant to which Tenant agrees
to keep such information and certification strictly confidential.
7.4 ASSIGNMENTS AND SUBLEASES BY ASSIGNEE. Landlord hereby agrees
that any assignment or sublease of the Premises or any portion thereof by
Assignee shall be considered a "New Lease" by Landlord for purposes of
calculating Transfer Profit under this Section 7.
8. WITHDRAWAL OF REQUEST FOR LANDLORD'S SUBLEASE CONSENT. Tenant
hereby withdrawals its request for Landlord's consent to Tenant's proposed
sublease with Silicon Valley Internet Capital ("PROPOSED SUBTENANT"). Tenant
shall inform the Proposed Subtenant that Tenant is no longer seeking a
proposed sublease with Proposed Subtenant.
9. RELEASE. Except as to the obligations set forth in this Agreement
and except as to the indemnities set forth in Sections 8.C and 8.D of the
Lease (which shall survive the Termination Date as set forth in Section 2.2
of this Agreement), effective as of the Termination Date, (a) Landlord and
Tenant shall be fully and unconditionally released and discharged from their
respective obligations from or connected with the provisions of the Lease;
and (b) this Agreement shall fully and finally settle all demands, charges,
claims, accounts or causes of action of any nature, including, without
limitation, both known and unknown claims and causes of action that may arise
out of or in connection with the obligations of the parties under the Lease.
Each of the parties expressly waives the provisions of California
Civil Code Section 1542, which provides:
"A general release does not extend to claims which the creditor does
not know or suspect to exist in his favor at the time of executing
the release, which if known by him must have materially affected his
settlement with the debtor."
Each party acknowledges that it has received the advice of legal counsel with
respect to the aforementioned waiver and understands the terms thereof.
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10. SUCCESSORS AND ASSIGNS. This Agreement, and the rights and
obligations of the parties hereunder, will inure to the benefit of, and be
binding upon, each party's respective successors, assigns, heirs, executors,
administrators and legal representatives.
11. PRESS RELEASES. The form and substance of any press release or
other public disclosure by Landlord, Tenant or Assignee which is materially
related to this Agreement or any of the transactions contemplated hereby
shall be subject to the prior approval of the other parties hereto; provided
however, that nothing in this Agreement shall be deemed to prohibit either
party from making any disclosure which its counsel deems necessary or
advisable in order to satisfy such party's disclosure obligations imposed by
applicable law.
12. WIRE TRANSFER INSTRUCTIONS. If Landlord elects to make any
payment to Tenant due under this Agreement by wire transfer, the applicable
wire transfer information is as follows:
Bank Name: Comerica Bank
Bank Address: 000 Xxxxx Xxxxxx, Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000-0000
ABA #: 1211-37522
Beneficiary Name: Insweb Corporation
Beneficiary Account #: 1890700204
13. NOTICES. Any and all notices required or permitted under this
Agreement shall be made in accordance with the terms of the Lease, provided
that (i) Tenant's address for purposes of notices under this Agreement shall
be to "Tenant's Billing Address," as set forth in the Basic Lease Information
or such other address as may be designated by Tenant in a notice to Landlord,
and (ii) Assignee's address shall be the same as Landlord's address.
14. CONFLICT. In the event of any conflict between the terms and
conditions of the Lease and the terms and conditions of this Agreement, the
terms and conditions of this Agreement shall prevail.
15. COUNTERPARTS. This Agreement may be executed in counterparts
with the same effect as if all parties hereto had executed the same document.
All counterparts shall be construed together and shall constitute a single
document.
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IN WITNESS WHEREOF, this Agreement has been executed as of the day and year
first above written.
"LANDLORD"
XXXXXXX PROPERTIES, L.P.,
a California limited partnership
By: Xxxxxxx Properties, Inc.,
a Maryland corporation,
its general partner
By: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
Its: Vice President
"TENANT"
INSWEB CORPORATION,
a Delaware corporation
By: /s/ Hussein A. Enan
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Its: CHAIRMAN AND CEO
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By: ----------------------------------
Its:
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"ASSIGNEE"
XXXXXXX NORTHWEST, INC.,
a California corporation
By: /s/ Xxxxx Xxxxxxxxx
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Its: Vice President
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BROKER ACKNOWLEDGMENT
By its execution of this Broker Acknowledgment, BT Commercial Real
Estate ("BROKER"), hereby acknowledges and agrees that, notwithstanding any
agreement prior to the date of the Agreement to the contrary, (i) Broker has
been fully paid any and all amounts due in connection with the Lease as of the
date of this Agreement, and (ii) neither Landlord nor any other party shall have
any obligation whatsoever to provide or pay to Broker any additional commission
or other compensation related to or connected with the Lease following the date
of this Agreement.
"Broker":
BT Commercial Real Estate
By: ______________________
Its: _________________
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EXHIBIT A
BASE RENT SCHEDULE
Base Rent Base Rent
Calendar Quarter Building A Premises Building B Premises
---------------- ------------------- -------------------
7/1 - 9/30/2000 $384,861.75 $393,805.75
10/1 - 12/31/2000 $384,861.75 $1,181,417.25
1/1 - 3/31/2001 $384,861.75 $1,181,417.25
4/1 - 6/30/2001 $384,861.75 $1,181,417.25
7/1 - 9/30/2001 $388,793.47 $1,193,486.53
10/1 - 12/31/2001 $396,656.91 $1,217,625.08
1/1 - 3/30/2002 $396,656.91 $1,217,625.08
4/1 - 6/30/2002 $396,656.91 $1,217,625.08
7/1 - 9/30/2002 $400,709.04 $1,230,063.96
10/1 - 12/31/2002 $408,813.28 $1,254,941.72
1/1 - 3/30/2003 $408,813.28 $1,254,941.72
4/1 - 6/30/2003 $408,813.28 $1,254,941.72
7/1 - 9/30/2003 $412,989.74 $1,267,762.26
EXHIBIT A
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