AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION
STANDARD SUBLEASE
(SHORT-FORM TO BE USED WITH POST 1995 AIR LEASES)
1. PARTIES. This Sublease, dated, for reference purpose only, APRIL 1, 1999,
is made by and between QAD, INC. ("Sublessor") and VALUE CLICK, INC., A
DELAWARE CORPORATION ("Sublessee").
2. PREMISES. Sublessor hereby subleases to Sublessee and Sublessee hereby
subleases from Sublessor for the term, at the rental, and upon all of the
conditions set forth herein, that certain real property, including all
improvements therein, and commonly known by the street address of 6450 ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇-▇, ▇▇▇▇▇▇▇▇▇▇▇ located in the County of SANTA ▇▇▇▇▇▇▇, State
of CALIFORNIA and generally described as (describe briefly the nature of
the property) APX. 9,000 SF PORTION OF A 12,265 SF OFFICE/INDUSTRIAL
BUILDING LOCATED WITHIN THE SOUTH COAST BUSINESS PARK ("Premises").
3. TERM.
3.1 TERM. The term of this Subleases shall be for APX. TWENTY AND
TWO/THIRDS (20 2/3) MONTHS commencing on APRIL 9, 1999 and ending
on DECEMBER 31, 2000 unless sooner terminated pursuant
to any provision hereof.
3.2 DELAY IN COMMENCEMENT. Sublessor agrees to use reasonable efforts to
deliver possession of the Premises by the commencement date. If,
despite said efforts, Sublessor is unable to deliver possession as
agreed. Sublessee agrees that Sublessor shall not be liable whatsoever
for such failure to deliver possession.
4. RENT.
4.1 BASE RENT. Sublessee shall pay to Sublessor as Base Rent for the
Premises equal monthly payments of $12,150.00 in advance, on the 1ST
day of each month of the term thereof. Sublessee shall pay Sublessor
upon the execution hereof $7,290 as Base Rent for April 12, 1999 TO
APRIL 30, 1999 Base Rent for any period during the term hereof which is
for less than one month shall be a pro rata portion of the monthly
installment.
4.2 RENT DEFINED. All monetary obligations of Sublessee to Sublessor
under the terms of the Sublease (except for the Security Deposit )
are deemed to be rent ("RENT"). Rent shall be payable in lawful
money of the United States to Sublessor at the address stated herein
or to such other persons or at such other places as Sublessor may
designate in writing. (See Addendum)
5. SECURITY DEPOSIT. Sublessee shall deposit with Sublessor upon execution
hereof $12,150.00 as security for Sublessee's faithful performance of
Sublessee's obligations hereunder. The rights and obligations of
Sublessor and Sublessee as to said Security Deposit shall be as set
forth in paragraph 5 of the Master Lease (as modified by Paragraph 7.3
of this Sublease).
6. USE.
6.1 AGREED USE. The Premises shall be used and occupied only for general
office use and for no other purpose.
6.2 Acceptance of Premises and Lessee. Sublessee acknowledges that:
(a) It has been advised by Brokers to satisfy itself with respect to
the condition of the Premises (including but not limited to the
electrical, HVAC and fire sprinkler systems, security,
environmental aspects, and compliance with applicable
Requirements), and their suitability for Sublessee's intended use,
(b) Sublessee has made such investigation as it deems necessary with
reference to such matters and assumes all responsibility therefore
as the same relate to its occupancy of the Premises, and
(c) Neither Sublessor, Sublessor's agents, nor any Broker has made any
oral or written representations or warranties with respect to said
matters other than as set forth in this Sublease.
In addition, Sublessor acknowledges that:
(a) Broker has made no representations, promises or warranties
concerning Sublessee's ability to honor the Sublease or
suitability to occupy the Premises, and
(b) It is Sublessor's sole responsibility to investigate the
financial capability and /or suitability of all proposed
tenants.
7. MASTER LEASE
7.1 Sublessor is the lessee of the Premises by virtue of a lease,
hereinafter the "MASTER LEASE", a copy of which is attached thereto
marked Exhibit 1, wherein ▇▇▇▇▇▇▇ D AND ▇▇▇▇ ▇. ▇▇▇▇▇▇ DBA SOUTH COAST
BUSINESS PARK is the lessor, hereinafter the "MASTER LESSOR"
7.2 This Sublease is and shall be at all times subject and subordinate
to the Master Lease and shall be subject to consent of Master Lessor.
7.3 The terms, conditions and respective obligations of Sublessor and
Sublessee to each other under this Sublease shall be subordinate to -
the terms and conditions of the Master Lease. Therefore, for the
purposes of this Sublease, wherever in the Master Lease the word
"Lessor" is used it shall be deemed to mean the Sublessor herein and
wherever in the Master Lease the word "Lessee' is used it shall be
deemed to mean the Sublessee herein.
7.4 During the term of this Sublease and for all periods subsequent for
obligations which have arisen prior to the termination of this
Sublease, Sublessee does hereby expressly assume and agree to perform
and comply with, for the benefit of Sublessor and Master Lessor, each
and every obligation of Sublessor under the Master Lease except for the
following paragraphs which excluded therefrom: 2.1 PREMISES SHALL BE
AMENDED TO REFLECT SUBLESSEE'S PREMISES AS 9,000 SF
7.5 The obligations that Sublessee has assumed under paragraph 7.4 hereof
are hereinafter referred to as the "SUBLESSEE'S ASSUMED OBLIGATIONS".
The obligations that sublessee has not assumed under paragraph 7.4
hereof are hereinafter referred to as the "SUBLESSOR'S REMAINING
OBLIGATIONS".
7.6 Sublessee shall hold Sublessor free and harmless from all liability,
judgment, costs, damages, claims or demands, including reasonable
attorneys fees, arising out of Sublessee's failure to comply with or
perform Sublessee's Assumed Obligations.
7.7 Sublessor agrees to maintain the Master Lease during the entire term of
this Sublease, subject, however, to any earlier termination of the
master Lease without the fault of the Sublessor, and to comply with or
perform Sublessor's Remaining obligations and to hold Sublessee free
and harmless from all liability, judgments, costs, damages, claims or
demands arising out of Sublessor's failure to comply with or perform
Sublessor's Remaining Obligations.
7.8 Sublessor represents to Sublessee that the Master Lease is in full
force and effect and that to Sublessor's knowledge, no default
exists on the part of any party to the Master Lease.
8. ASSIGNMENT OF SUBLEASE AND DEFAULT.
8.1 Sublessor hereby assigns and transfers to Master Lessor the
Sublessor's interest in this Sublease, subject however to the
provisions of Paragraph 8.2 hereof.
8.2 Master Lessor, by executing this document, agrees that until a Default
shall occur in the performance of Sublessor's obligations under the
Master Lease, that Sublessor may receive, collect and enjoy the Rent
accruing under this Sublease. However, if Sublessor shall Default in
the performance of its obligations to Master Lessor then Master Lessor
may, at its option, receive and collect, directly from Sublessee, all
Rent owing and to be owed under this Sublease. Master Lessor shall not,
by reason of this assignment of the Sublease not by reason of the
collection of the Rent from the Sublessee, be deemed liable to
Sublessee for any failure of the Sublessor to perform and comply with
Sublessor's Remaining Obligations.
8.3 Sublessor hereby irrevocably authorizes and directs Sublessee upon
receipt of any written notice from the Master Lessor stating that a
Default exists in the performance of Sublessor's obligations under the
Master Lease, to pay to Master Lessor the Rent due and to become due
under the Sublease. Sublessor agrees that Sublessee shall have the
right to rely upon any such statement and request from mater Lessor,
and that Sublessee shall pay such Rent to Master Lessor without any
obligation or right to inquire as to whether such Default exists and
notwithstanding any notice from or claim from Sublessor to the contrary
and Sublessor shall have no right or claim against Sublessee for any
such Rent so paid by Sublessee.
8.4 No changes or modifications shall be made to this Sublease without
the consent of Master Lessor.
9. CONSENT OF MASTER LESSOR.
9.1 In the event that the Master Lease requires that Sublessor obtain the
consent of Master Lessor to any subletting by Sublessor then, this
Sublease shall not be effective unless, within then days of the date
hereof, master Lessor signs this Sublease thereby giving its consent to
this Subletting.
9.2 In the event that the obligations of the Sublessor under the Master
Lease have been guaranteed by third parties then neither this Sublease,
nor the Master Lessor's consent, shall be effective unless, within 10
days of the date hereof, said guarantors sign this Sublease thereby
giving their consent to this sublease.
9.3 In the event that Master Lessor does give such consent then:
(a) Such consent shall not release Sublessor of its obligations or
alter the primary liability of Sublessor to pay the Rent and
perform and comply with all the obligations of Sublessor to be
performed under the Master Lease.
(b) The acceptance of Rent by Master Lessor from Sublessee or
anyone else liable under the master Lease shall not be deemed a
waiver by Master Lessor of any provisions of the Master Lease.
(c) The consent to this Sublease shall not constitute a consent to
any subsequent subletting or assignment.
(d) In the event of any Default of Sublessor under the Master Lease,
Master Lessor may proceed directly against Sublessor, any
guarantors or anyone else liable under the Master Lease or this
Sublease without first exhausting Master Lessor's remedies against
any other person or entity liable thereon to Master Lessor.
(e) Master lessor may consent to subsequent sublettings and
assignments of the Master Lease or this Sublease or any amendments
or modifications thereto without notifying Sublessor or any one
else liable under the Master Lease and without obtaining their
consent and such action shall not relieve such persons from
liability.
(f) In the event that Sublessor shall Default in its obligations under
the Master Lease, then Master Lessor, at its option and without
being obligated to do so, may require Sublessee to attorn to
Master Lessor in which event Master Lessor shall undertake the
obligations of Sublessor under
this Sublease from the time of the exercise of said option to
termination of this Sublease but Master Lessor shall not be
liable for any prepaid Rent nor any Security deposit paid by
Sublessee, not shall Master Lessor be liable for any other
Defaults of the Sublessor under the Sublease.
9.4 The signatures of the Master Lessor and any Guarantors of Sublessor
at the end of this document shall constitute their consent to the
terms of the Sublease.
9.5 Master Lessor acknowledges that, to the best of Master Lessor's
knowledge, no Default presently exists under the Master Lease of
obligations to be performed by Sublessor and that the Master Lease is
in full force and effect.
9.6 In the event that Sublessor Defaults under its obligations to be
performed under the Master Lease by Sublessor, Master Lessor agrees to
deliver to Sublessee a copy of any such notice of default. Sublessee
shall have the right to cure any Default of Sublessor described in any
notice of default within ten days after service of such notice of
default on Sublessee. If such Default is cured by Sublessee then
Sublessee shall have the right of reimbursement and offset from and
against Sublessor.
10. BROKERS FEE.
10.1 Upon execution hereof by all parties, Sublessor shall pay to PACIFICA
COMMERCIAL REALTY a licensed real estate broker, ("BROKER"), a fee as
set forth in a separate agreement between Sublessor and Broker, or in
the event there is no such separate agreement, the sum of $27,500.00
for brokerage services rendered by Broker to Sublessor in this
transaction.
10.2 Sublessor agrees that if Sublessee exercises any option of right of
first refusal as granted by Sublessor herein, or any option or right
substantially similar thereto, either to extend the term of this
sublease, to renew this Sublease, to purchase the Premises, or to lease
or purchase adjacent property which Sublessor may own or in which
Sublessor has an interest, then Sublessor shall pay to Broker a fee in
accordance with the schedule of Broker in effect at the time of the
execution of this Sublease. Notwithstanding the foregoing, Sublessor's
obligation under this Paragraph 10.2 is limited to a transaction in
which Sublessor is acting as a Sublessor, lessor or seller.
10.3 Master Lessor agrees that if Sublessee shall exercise any option or
right of first refusal granted to Sublessee by Master Lessor in
connection with this Sublease, or any option or right substantially
similar thereto, either to extend or renew the Master Lease, to
purchase the Premises or any part thereof, or to lease or purchase
adjacent property which Master Lessor may own or in which Master
Lessor has an interest, or if Broker is the procuring cause of any
other lease or sale entered into between Sublessee and Master Lessor
pertaining to the Premises, any part thereof, or any adjacent
property which Master Lessor owns or in which it has an interest,
then as to any of said transactions, Master Lessor shall pay to
Broker a fee, in cash, in accordance with the schedule of Broker in
effect at the time of the execution of this Sublease.
10.4 Any fee due from Sublessor or Master Lessor hereunder shall be due and
payable upon the exercise of any option to extend or renew, upon the
execution of any new lease, or, in the event of a purchase, at the
close of escrow.
10.5 Any transferee of Sublessor's interest in this Sublease, or of Master
Lessor's interest in the Master Lease by accepting an assignment
thereof, shall be deemed to have assumed the obligations of Sublessor
or Master Lessor under this Paragraph 10. Broker shall be deemed to be
a third-party beneficiary of this paragraph 10.
11. ATTORNEY'S FEE. If any party or the Broker named herein brings an action to
enforce the terms hereof or to declare rights hereunder, the prevailing
party in any such action, on trial and appeal, shall be entitled to his
reasonable attorney's fees to be paid by the losing party as fixed by the
Court.
12. ADDITIONAL PROVISIONS. [If there are no additional provisions, draw a line
from this point to the next printed word after the space left here. If
there are additional provisions place the same here.]
See Addendum
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ATTENTION: NO REPRESENTATION OR RECOMMENDATION IS MADE BY THE AMERICAN
INDUSTRIAL REAL ESTATE ASSOCIATION OR BY ANY REAL ESTATE BROKER AS TO THE
LEGAL SUFFICIENCY, LEGAL EFFECT, OR TAX CONSEQUENCES OF THIS SUBLEASE OR THE
TRANSACTION TO WHICH IT RELATES. THE PARTIES ARE URGED TO:
1. SEEK ADVICE OF COUNSEL AS TO THE LEGAL AND TAX CONSEQUENCES OF THIS
SUBLEASE.
2. RETAIN APPROPRIATE CONSULTANTS TO REVIEW AND INVESTIGATE THE CONDITION
OF THE PREMISES. SAID INVESTIGATION SHOULD INCLUDE BUT NOT BE LIMITED
TO: THE POSSIBLE PRESENCE OF HAZARDOUS SUBSTANCE, THE ZONING OF THE
PROPERTY, THE STRUCTURAL INTEGRITY, THE CONDITION OF THE ROOF AND
OPERATING SYSTEMS, AND THE SUITABILITY OF THE PREMISES FOR SUBLESSEE'S
INTENDED USE.
WARNING: IF THE SUBJECT PROPERTY IS LOCATED IN A STATE OTHER THAN
CALIFORNIA, CERTAIN PROVISIONS OF THE SUBLEASE MAY NEED TO BE REVISED TO
COMPLY WITH THE LAWS OF THE STATE IN WHICH THE PROPERTY IS LOCATED.
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Executed at: QAD, INC., A DELAWARE CORPORATION
-----------------
On: By /s/ ▇▇▇▇▇ [ILLEGIBLE]
--------------------------- -------------------------
Address: By
--------------------- -------------------------
"Sublessor" (Corporate Seal)
Executed at: VALUE CLICK, INC., A DELAWARE CORPORATION
------------------
On: By /s/ [ILLEGIBLE]
--------------------------- ----------------------------------
Address: By
--------------------- ----------------------------------
"Sublessee" (Corporate Seal)
Executed at: ▇▇▇▇▇▇▇ ▇. and ▇▇▇▇ ▇. ▇▇▇▇▇▇ dba
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South Coast Business Park
On: By /s/ [ILLEGIBLE] ▇▇▇▇▇▇ [ILLEGIBLE]
--------------------------- ----------------------------------
Address: By
--------------------- ----------------------------------
"Master Lessor" (Corporate Seal)
NOTE: THESE FORMS ARE OFTEN MODIFIED TO MET CHANGING REQUIREMENTS OF LAW AND
NEEDS OF THE INDUSTRY. ALWAYS WRITE OR CALL TO MAKE SURE YOU ARE UTILIZING
THE MOST CURRENT FORM: AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION, ▇▇▇ ▇▇.
▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. (▇▇▇) ▇▇▇-▇▇▇▇.
EXHIBIT A
Premises: 6450 Via Real
Sublessor: QAD Inc.
Sublessee: ValueClick LLC
Date: April 1, 1999
Balance
Left
Danbury
Desk & Return 8
Credenza 5
Book Case
Wood (4' x 6') 2
Metal 2
Storage Cabinet 1
Reception Cabinet 1
Action Office Cubes 5
Chairs
Rolling 4
Plastic 6
Tables
Conference Room 1
4' Sectional 1
4' Round 1
Rectangular 7
Folding 2
PRICE FOR ALL $0.00
Initials: Sublessor [ILLEGIBLE]
Sublessee [ILLEGIBLE]
Lessor [ILLEGIBLE]
EXHIBIT B
Premises: 6450 Via Real
Sublessor: QAD Inc.
Sublessee: ValueClick LLC
Date: April 1, 1999
Total
Count
Danbury (Wood Desk)
Desk & Return 12
Credenza 11
Book Case
Wood (4' x 6') 25
Metal 4
PRICE FOR ALL: $5,000.00
Initials: Sublessor [ILLEGIBLE]
Sublessee [ILLEGIBLE]
Lessor [ILLEGIBLE]
ADDENDUM TO STANDARD SUBLEASE
Premises: 6450 Via Real
Sublessor: QAD Inc.
Sublessee: ValueClick LLC
Date: April 1, 1999
4.2 ADDENDUM: In addition to the Base Rent, Sublessee shall pay to
Sublessor on or before the date such payments are to be
made by Sublessor under the master Lease, additional rent
in an amount equal to Sublessee's prorata share of all
operating expenses, taxes, utilities, rent increases and
other amounts of any kind whatsoever payable by Sublessor
to Master Lessor under the Master Lease. Sublessee's
prorata share of such amounts shall be determined by
Sublessor in its reasonable discretion based upon the
size of the Premises hereunder relative to the Premises
leased under the Master Lease and such other factors as
may be reasonably considered by commercial landlords in
making such determinations. Sublessee agrees to make such
payments within five (5) days of the delivery of written
notice by Sublessor. In the event that Sublessee fails to
make payments a s required hereunder, Sublessee agrees to
pay a late charge equal to ten percent (10%) of the
overdue amount and pay interest on such overdue amount at
ten percent (10%) per annum on the date that such payment
is due until the date Sublessor receives payment.
13. PARKING: Sublessee shall be entitled to use twenty-seven (27)
unreserved parking spaces during the term to this
Sublease.
14. FURNITURE: 14.1 QAD shall include at no cost to ValueClick all of
the furniture listed on Exhibit A dated march 31, 1999.
The furniture listed on Exhibit A dated march 31, 1999.
The furniture listed shall be given to ValueClick upon
the mutual execution of the Sublease.
14.2 QAD shall sell to ValueClick for the sum of five
Thousand dollars ($5000) all of the furniture listed on
Exhibit B dated march 31, 1999. The furniture listed on
exhibit B shall be transferred when QAD vacated 6420 Via
Real, expected to be on or about June 10, 1999.
15. SIGNAGE: QAD authorizes ValueClick to relocate the existing
Monument sign approximately six (6) feet and install a
new monument sign for ValueClick. QAD's consent is
subject to the consent of the Master Lessor.
16. OPTION TO Provided Sublessor has exercised its one remaining option to
EXTEND: extend the Master Lease, Sublessee is hereby granted the
Option to Extend the term of this Sublease for one (1)
additional period of three (3) years. The Option shall be
exercised by the delivery of a written notice to
Sublessor no earlier than two hundred seventy (270) days
and no later than one hundred eighty five (185) days
prior to the expiration of the Sublease term. The
extension granted hereunder shall be on the same terms
and conditions applicable to the initial term, except as
to tent, which shall be increased per the terms of the
Master Lease. In the event that Sublessee exercises said
Option to Extend, then Sublessor agrees to pay Grey
▇▇▇▇▇▇▇▇▇▇▇ of Pacifica Commercial Realty a brokerage
commission equal to six percent (6%) of the value of the
Option term. Said commission shall be due and payable
once the Option has been exercised.
17. REPRESENTATION Each individual executing this Sublease on behalf of
OF SUBLESSEE: Sublessee represents and warrants that each such individual
is duly authorized to execute and deliver this Sublease
on behalf of Sublessee in accordance with a duly adopted
resolution of Sublessee's board of Directors, and that
this Sublease is binding on Sublessee in accordance with
its terms, and that upon request of Sublessor, Sublessee
shall deliver a copy of such resolution to Sublessor.
Initials: Sublessor [ILLEGIBLE]
Sublessee [ILLEGIBLE]
Lessor [ILLEGIBLE]