1
EXHIBIT 10.20
SUB-SUBLEASE AGREEMENT
This SUB-SUBLEASE AGREEMENT("Sub-Sublease")is made and entered into as
of the 28th day of February 2000 by and between XXXXXXX & COMPANY, INC., a
California corporation ("Xxxxxxx" or "Sublandlord") and L90, a Delaware
corporation ("Subtenant").
A. 000 Xxxx Xxxxxx Associates, as original landlord ("Original
Landlord"), and Founders Title Group, as original tenant ("Original Tenant"),
entered into that certain Office Lease dated April 13, 1988 ("Original Master
Lease") pursuant to which Original Landlord leased to Original Tenant space on
the twentieth (20th) floor ("Master Premises") of the building located at 000
Xxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx (the "Building") as more particularly
described in the Original Master Lease, upon the terms and conditions contained
therein.
B. The Original Master Lease was amended by that certain First Amendment
of Lease dated as of June 23, 1992 ("First Amendment") and that certain Second
Amendment to Lease dated as of May 26, 1998 ("Second Amendment"). The Original
Master Lease as amended by the First Amendment and the Second Amendment is
referred to herein as the "Master Lease." All capitalized terms used herein
shall have the same meaning ascribed to them in the Master Lease unless
otherwise defined herein. A copy of the Master Lease is attached hereto as
Exhibit "A" and made a part hereof
X. Xxxx Street San Francisco Property L.P. ("Landlord") has succeeded to
the interest of Original Landlord under the Master Lease.
D. Old Republic Title Holding Company, Inc. ("Tenant") has succeeded to
the interest of Original Tenant under the Master Lease.
E. Tenant and Xxxxxxx, as subtenant, entered into that certain Sublease
Agreement ("Sublease") dated as of September 28, 1998, pursuant to which Xxxxxxx
sublet certain premises on the twentieth (20th) floor of the Building.
F. Sublandlord and Subtenant are desirous of entering into a
sub-sublease of that portion of the Master Premises shown hatched in black on
the demising plan attached hereto as Exhibit "B" and made a part hereof
("Sublease Premises") on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto mutually
covenant and agree as follows:.
1. Demise. Sublandlord hereby sub-subleases and demises to Subtenant and
Subtenant hereby hires and sub-subleases from Sublandlord the Sublease Premises,
upon and subject to the terms, covenants and conditions hereinafter set forth.
2
2. Lease Term. The term of this Sub-Sublease ("Term") shall be for the
period commencing on the earlier of (i) May 1, 2000, or (ii) the date upon which
Subtenant, or any person occupying any of the Sublease Premises with Subtenant's
permission, commences business operations from the Sublease Premises ("Sublease
Commencement Date") and ending, unless sooner terminated as provided herein, on
July 30, 2003 ("Sublease Expiration Date").
3. Use. The Sublease Premises shall be used and occupied by Subtenant
for the uses permitted under and in compliance with the Master Lease and the
Sublease and for no other purpose.
4. Subrental.
(a) Base Rental. Beginning with the Sublease Commencement Date
and thereafter during the Term of this Sub-Sublease and ending on the Sublease
Expiration Date, Subtenant shall pay to Sublandlord monthly installments of base
rent ("Base Rental") equal to $29,250 ($351,000 per year). The first monthly
installment of Base Rental shall be paid by Subtenant upon the execution of this
Sub-Sublease. Base Rental and all additional rent payable hereunder or under the
Sublease or Master Lease by Subtenant in accordance hereof shall hereinafter be
collectively referred to as "Rent."
(b) Prorations. If the Sublease Commencement Date is not the
first (1st) day of a month, or if the Sublease Expiration Date is not the last
day of a month, a prorated installment of monthly Base Rental based on a thirty
(30) day month shall be paid for the fractional month during which the Term
commenced or terminated, as the case may be.
(c) Additional Rent. Beginning with the Sublease Commencement
Date and continuing through the Sublease Expiration Date, Subtenant shall pay to
Sublandlord as additional rent for this sub-subletting all special or
after-hours cleaning, heating, ventilating, air-conditioning, elevator and other
Building charges incurred at the request of, or on behalf of, Subtenant, or with
respect to the Sublease Premises, and all other additional expenses, costs and
charges payable to Landlord in connection with Subtenant's use of the Sublease
Premises.
(d) Operating Expenses. During the Term of this Sub-Sublease,
Subtenant shall pay to Sublandlord as additional rent for this sub-subletting an
amount equal to one hundred percent (100%) of the Operating Costs and Taxes as
set forth in Section 5(B) of the Sublease attributable to the Sublease Premises.
(e) Payment of Rent. Except as otherwise specifically provided
in this Sub-Sublease, Rent shall be payable in lawful money of the United
States, without demand; and without offset, counterclaim, or setoff in monthly
installments, in advance, on the first day of each and every month during the
Term of this Sub-Sublease. All of said Rent is to be paid to Sublandlord at its
office at the address set forth in Section 12 below, or at such other place or
to such agent and at such place as Sublandlord may from time to time designate
by notice to Subtenant. Any additional rent payable on account of items which is
not payable monthly by Sublandlord to Tenant by virtue of the Sublease and/or
the Master Lease is to be paid to Sublandlord as and when such items are payable
by Sublandlord under the Sublease and/or the
-2-
3
Master Lease unless a different time for payment is elsewhere stated herein.
Upon written request therefor, Sublandlord agrees to provide Subtenant with
copies of any statements or invoices received by Sublandlord pursuant to the
terms of the Sublease and/or the Master Lease.
(f) Late Charge. In the event Subtenant fails to pay any amounts
due hereunder or under the Sublease and/or the Master Lease as and when due,
Subtenant shall pay interest to Sublandlord on all such past-due amounts at an
annual interest rate equal to the prime rate, reference rate, or other similar
benchmark rate of interest publically announced by Bank of America, N.T. & S.A.
at its San Francisco, California headquarters plus five percent (5%) ("Interest
Rate"), such interest to accrue from the date upon which such amount was due
until paid.
5. Security for Sublease.
(a) Deposit. Concurrently with the execution of this
Sub-Sublease, Subtenant shall deposit with Sublandlord the sum of Twenty Nine
Thousand Two Hundred Fifty Dollars ($29,250.00) ("Deposit"), which shall be held
by Sublandlord as security for the full and faithful performance by Subtenant of
its covenants and obligations under this Sub-Sublease. The Deposit is not an
advance Rent deposit, an advance payment. of any other kind, or a measure of
Sublandlord's damage in case of Subtenant's default. If Subtenant defaults in
the full and timely performance of any or all of Subtenant's covenants and
obligations set forth in this Sub-Sublease, then Sublandlord may, from time to
time, without waiving any other remedy available to Sublandlord, use the
Deposit, or any portion of it, to the extent necessary to cure or remedy the
default or to compensate Sublandlord for all or a part of the damages sustained
by Sublandlord resulting from Subtenant's default. Subtenant shall immediately
pay to Sublandlord within five (5) days following demand, the amount so applied
in order to restore the Deposit to its original amount, and Subtenant's failure
to immediately do so shall constitute a default under this Sub-Sublease. If
Subtenant is not in default with respect to the covenants and obligations set
forth in this Sub-Sublease at the expiration or earlier termination of the
Sub-Sublease, Sublandlord shall return the Deposit to Subtenant within thirty
(30) days following the expiration or earlier termination of this Sub-Sublease.
Sublandlord's obligations with respect to the Deposit are those of a debtor and
not a trustee. Sublandlord shall not be required to maintain the Deposit
separate and apart. from Sublandlord's general or other funds and Sublandlord
may commingle the Deposit with any of Sublandlord's general or other funds.
Subtenant shall not at any time be entitled to interest on the Deposit.
(b) Sublease Security. Upon Subtenant's execution of this
Sub-Sublease, Subtenant shall deliver to Sublandlord an irrevocable standby
letter of credit ("Sublease Letter of Credit") in the original amount of
$600,000 in form and substance satisfactory to Sublandlord and issued by a
financial institution satisfactory to Sublandlord in its sole discretion.
6. Parking. Subtenant shall have the right, during the Term of this
Sublease, to use up to two (2) parking privileges in the parking facilities for
the Building as set forth in Section 8 of the Sublease. All such parking,
privileges shall be at the rates and subject to the terms and conditions set
forth in the Sublease and the Master Lease, and Subtenant shall
-3-
4
reimburse Sublandlord, upon demand, for those amounts billed to Sublandlord for
said parking privileges.
7. Incorporation of Terms of Master Lease.
(a) This Sub-Sublease is subject and subordinate to the Sublease
and the Master Lease. Subject to the modifications set forth in this
Sub-Sublease, the terms of the Sublease and the Master Lease are incorporated
herein by reference, and shall, as between Sublandlord and Subtenant (as if they
were landlord and tenant, respectively, under the Master Lease and sublandlord
and subtenant under the Sublease) constitute the terms of this Sub-Sublease
except to the extent they are inapplicable to, inconsistent with, or modified
by, the terms of this Sub-Sublease. In the event of any inconsistencies between
the terms and provisions of the Master Lease or the Sublease and the terms and
provisions of this Sub-Sublease, the terms and provisions of this Sub-Sublease
shall govern. Subtenant acknowledges that it has reviewed the Sublease and the
Master Lease and is familiar with the terms and conditions thereof.
(b) For the purposes of incorporation herein, the terms of the
Sublease and the Master Lease are subject to the following additional
modifications:
(i) In all instances where, pursuant to the Sublease or
the Master Lease, the approval or consent of Landlord must be obtained,
Subtenant shall be required to obtain the approval or consent of
Sublandlord, Tenant, and Landlord.
(ii) In all provisions of the Sublease and the Master
Lease requiring Tenant to submit, exhibit to, supply or provide Landlord
with evidence, certificates, or any other matter or thing, Subtenant
shall be required to submit, exhibit to, supply or provide, as the case
may be, the same to Landlord, Tenant and Sublandlord. In any such
instance, Sublandlord shall determine if such evidence, certificate or
other matter or thing shall be satisfactory.
(iii) Sublandlord shall have no obligation to restore or
rebuild any portion of the Sublease Premises after any destruction or
taking by eminent domain.
(c) The following provisions of the Master Lease are
specifically excluded from this Sub-Sublease: 1.01(2), 1.01(3), 1.01(5),
1.01(6), 1.01(7), 3.01, 3.03, 3.04, 4.01 (as amended by the Second Amendment),
4.02(b), 4.04, 5.05, 5.07, 9.03, 12.02, 12.04, 12.07, Article 14 in its
entirety, and Article 16 in its entirety. The following provisions of the First
Amendment are specifically excluded from this Sub-Sublease: 2, 3, 4, 6, 7, and
9. The following provisions of the Second Amendment are specifically excluded
from this Sub-Sublease: 2, 5, and 7.
(d) The following provisions of the Sublease are specifically
excluded from this Sub-Sublease: 5A, 6, 7, 11, 12, 13 and 14.
-4-
5
8. Subtenant's Obligations. Subtenant covenants and agrees that all
obligations of Sublandlord (in its capacity as subtenant) under the Sublease
shall be done or performed by Subtenant, and Subtenant's obligations shall run
to Sublandlord, Tenant and Landlord as Sublandlord may determine to be
appropriate or be required by their respective interests. Subtenant agrees to
indemnify Sublandlord, and hold it harmless, from and against any and all
claims, damages, losses, expenses (including reasonable attorneys' fees) and
liabilities incurred as a result of the non-performance, non-observance or
non-payment of any of Sublandlord's obligations under the Sublease which, as a
result of this Sub-Sublease, is an obligation of Subtenant. If Subtenant makes
any payment to Sublandlord pursuant to this indemnity, Subtenant shall be
subrogated to the rights of Sublandlord concerning said payment. Subtenant shall
not do, nor permit to be done, any act or thing which is, or with notice or the
passage of time would be, a default under this Sub-Sublease, the Sublease, or
the Master Lease.
9. Sublandlord's Obligations. Sublandlord agrees that Subtenant shall be
entitled to receive all services and repairs to be provided by Landlord to
Tenant under the Master Lease. Subtenant shall look solely to Landlord for all
such services and shall not, under any circumstances, seek or require
Sublandlord to perform any of such services, nor shall Subtenant make any claim
upon Sublandlord for any damages which may arise by reason of Landlord's or
Tenant's default under the Master Lease or Sublease. Any condition resulting
from a default by Landlord or Tenant shall not constitute, as between
Sublandlord and Subtenant, an eviction, actual or constructive, of Subtenant and
no such default shall excuse Subtenant from the performance or observance of any
of its obligations to be performed or observed under this Sub-Sublease, or
entitle Subtenant to receive any reduction in or abatement of the Rent provided
for in this Sub-Sublease. In furtherance of the foregoing, Subtenant does hereby
waive any cause of action and any right to bring any action against Sublandlord
by reason of any act or omission of Landlord or Tenant under the Master Lease or
Sublease.
10. Default by Subtenant. In the event Subtenant shall be in default of
any covenant of, or shall fail to honor any obligation under, this Sub-Sublease,
Sublandlord shall have available to it against Subtenant all of the remedies
available (a) to Landlord under the Master Lease in the event of a similar
default on the part of Tenant thereunder or (b) at law.
11. Quiet Enjoyment. So long as Subtenant pays all of the Rent due
hereunder and performs all of Subtenant's other obligations hereunder,
Sublandlord shall do nothing to affect Subtenant's right to peaceably and
quietly have, hold and enjoy the Sublease Premises.
12. Cure Periods; Notices.
(a) Cure Periods. Anything contained in any provision of this
Sublease to the contrary notwithstanding, Subtenant agrees to comply with and
remedy any default in this Sub-Sublease, the Sublease, or the Master Lease which
is Subtenant's obligation to cure, within the shorter of the period allowed to
Sublandlord under the Sublease or the Master Lease (as the case may be), even if
such time period is shorter than the period otherwise allowed therein due to the
fact that notice of default from Sublandlord to Subtenant is given after the
corresponding notice of default from Tenant to Sublandlord or Landlord to
Tenant.
-5-
6
(b) Notices. Sublandlord agrees to forward to Subtenant,
promptly upon receipt thereof by Sublandlord, a copy of each notice of default
received by Sublandlord. Subtenant agrees to forward to Sublandlord, promptly
upon receipt thereof, copies of any notices received by Subtenant from Landlord,
Tenant or from any governmental authority.
(c) Delivery of Notices. All notices, demands and requests
hereunder to be delivered to either Sublandlord or Subtenant shall be in writing
and shall be sent by hand delivery, United States mail, certified mail/return
receipt requested, with postage prepaid, or by a nationally recognized overnight
courier service (e.g., Federal Express), return receipt requested, to the
address of the appropriate party. Notices, demands and requests so sent shall be
deemed given when the same are received. Notices to Sublandlord shall be sent to
the attention of:
Xxxxxxx & Company, Inc.
000 Xxxxx Xxxxx Xxxxxx
Xxxxx 000
Xxxxx, Xxxxxxxxxx 00000
Attn: Xxxx Xxxxx
with a copy to: LeBoeuf, Lamb, Xxxxxx & XxxXxx, L.L.P.
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx, Esq.
Notices to Subtenant shall be sent to
the attention of:
L90
000 Xxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Office Manager
13. Broker. Sublandlord and Subtenant represent and warrant to each
other that, with the exception of GVA Xxxxxxx Commercial Real Estate Services,
representing Subtenant, and Colliers International, representing Sublandlord
(collectively, the "Brokers"), no brokers were involved in connection with the
negotiation or consummation of this Sub-Sublease. Sublandlord agrees to pay the
commission of the Brokers pursuant to a separate agreement. Each party agrees to
indemnify the other, and hold it harmless, from and against any and all claims,
damages, losses, expenses (including reasonable attorneys' fees) and liabilities
incurred by said party as a result of a breach of this representation and
warranty by the other party.
14. Condition of Premises. Subtenant acknowledges that it is
sub-subleasing the Sublease Premises "as-is" and that Sublandlord is not making
any representation or warranty concerning the condition of the Sublease Premises
and that Sublandlord is not obligated to perform any work to prepare the
Sublease Premises for Subtenant's occupancy. Subtenant acknowledges that it is
not authorized to make or do any alterations or improvements in or to the
-6-
7
Sublease Premises except as permitted by the provisions of this Sub-Sublease,
the Sublease and the Master Lease and that it must deliver the Sublease Premises
to Sublandlord on the Sublease Expiration Date in the condition required by the
Sublease and the Master Lease.
15. Consent of Landlord. Each of the Master Lease and the Sublease
requires Sublandlord to obtain the written consent of Landlord and Tenant to
this Sub-Sublease. Sublandlord shall solicit Landlord's and Tenant's consent to
this Sub-Sublease promptly following the execution and delivery of this
Sub-Sublease by Sublandlord and Subtenant and Subtenant's delivery to
Sublandlord of (i) the Sublease Letter of Credit, (ii) the Deposit, and (iii)
the first month's installment of Rent. In the event Landlord's and Tenant's
written consent to this Sub-Sublease has not been obtained within ninety (90)
days after the execution hereof, then this Sub-Sublease may be terminated by
either party hereto upon notice to the other, and upon such termination (x)
neither party hereto shall have any further rights against or obligations to the
other party hereto and (y) Sublandlord shall return the Sublease Letter of
Credit, Deposit and first month's installment of Rent to Subtenant.
16. Termination of the Master Lease. If for any reason the term of the
Master Lease or Sublease shall terminate prior to the Sublease Expiration Date,
this Sub-Sublease shall automatically be terminated and Sublandlord shall not be
liable to Subtenant by reason thereof unless said termination is caused by the
default of Sublandlord under the Sublease that directly or indirectly or in
whole or in part is not attributable to a Subtenant default (i) hereunder, or
(ii) under the Sublease or the Master Lease.
17. Assignment and Subletting. It is understood and agreed that
Subtenant shall have no right to sublet the Sublease Premises or any portion
thereof or any right or privilege appurtenant thereto or assign its interest
under this Sub-Sublease to any person or entity.
18. Limitation of Estate. Subtenant's estate shall in all respects be
limited to, and be construed in a fashion consistent with, the estate granted to
Sublandlord by Tenant. Subtenant shall stand in the place of Sublandlord and
shall defend, indemnify and hold Sublandlord harmless with respect to all
covenants, warranties, obligations, and payments made by Sublandlord under or
required of Sublandlord by the Sublease or the Master Lease. In the event
Sublandlord is prevented from performing any of its obligations under this
Sub-Sublease by a breach by Tenant or Landlord of a term or provision of the
Sublease or the Master Lease, then Sublandlord's sole obligation in regard to
its obligation under this Sub-Sublease shall be to use commercially reasonable
efforts at Subtenant's sole cost and expense in pursuing the correction or cure
by Tenant or Landlord of such breach.
-7-
8
IN WITNESS WHEREOF, the parties have entered into this Sub-Sublease as
of the date first written above.
SUBLANDLORD:
XXXXXXX & COMPANY, INC.,
a California corporation
By: /s/ [Signature Illegible]
---------------------------------
Its: Vice President
--------------------------------
SUBTENANT:
L90,
a Delaware corporation
By: /s/ [Signature Illegible]
---------------------------------
Its: VP of N.W. Sales & Secretary
--------------------------------
-8-
