EXHIBIT 10.9
ADDENDUM TO SUBLEASE
1. PARTIES.
This Addendum to Sublease ("Sublease Addendum"), dated for reference
purposes as of April 8, 2002, is made between WebSideStory, Inc.
("Sublessor"), and Avexus, Inc. ("Sublessee") in reference to that certain
Sublease between Sublessor and Sublessee dated as of July 6, 2001 (the
"Sublease"). This Sublease Addendum is a supplement to the Sublease, and
together the Sublease and this Sublease Addendum form one integrated
agreement.
2. MASTER LEASE.
Sublessor is the tenant under a written lease dated August 23, 1999 (the
"Master Lease"), wherein LNR Seaview, Inc, a California corporation
("Lessor") leased to Sublessor the real property located in the City of
San Diego, County of San Diego, State of California, described as: ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇, 500 and 600, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
("Master Premises"). A true and correct copy of the Master Lease is
attached hereto to the Sublease. Any capitalized terms used herein and not
defined herein shall have the meanings set forth for such capitalized
terms in the Master Lease. Any capitalized terms in this Sublease
Addendum not defined herein shall have the meanings assigned to such terms
in the Sublease.
3. SUBLEASED PREMISES; USE.
Sublessor hereby subleases to Sublessee on the terms and conditions set
forth in this Sublease Addendum the following portion of the Master
Premises: the portion of Suite 600 at 10182 Telesis Court indicated on
EXHIBIT A attached hereto and consisting of the seven adjacent offices in
area #7 (starting with the office adjacent to area #9 (the conference
room) plus the adjacent hallway space in Area # 7, as marked on Attachment
A (the "Additional Subleased Premises"). Sublessee may use the Additional
Subleased Premises for the uses identified in Section 1.12 and Article 6.1
of the Master Lease.
4. TENANT IMPROVEMENTS AND UTILITIES.
Sublessee shall not be entitled to construct any tenant improvements in
the Additional Subleased Premises. At Sublessor's option, and subject to
Landlord's consent, Sublessor may construct a hallway door between office
number 7 and the next adjacent office (which office is marked office
number "8" on EXHIBIT A). In such event, Sublessee will reimburse
sublessor for 50% of the expense of such construction, not to exceed
$2,000. Sublessee's rent will not be reduced during the construction
period. Sublessee acknowledges that it will be responsible for the cost of
running telephone cabling, data cabling, etc. to the Additional Subleased
Premises, and all such cabling shall be done in a manner approved in
advance by Sublessor with the objective of minimizing the expense of
return of the Additional Subleased Premises to Sublessor at the end of the
Term specified in Section 6. Utilities, security service and other
expenses directly related to the entire sixth floor of the Master Premises
(and not constituting Direct Expenses or Utilities Costs) will be
allocated between the Sublessee and the Sublessor so that Sublessee will
pay to Sublessor each month as invoiced by the applicable service provider
an additional
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14% of the total charges as reflected on such invoices. For the avoidance
of doubt, the foregoing amount is in addition to the amounts required
under the Sublease.
5. WARRANTIES AND COVENANTS OF SUBLESSOR.
Sublessor warrants and represents that, as of the Addendum Commencement
Date (defined below), (i) the Additional Subleased Premises complies with
all applicable laws, rules, regulations, codes, ordinances, underwriters'
requirements, covenants, conditions and restrictions ("Laws"), (ii) the
Additional Subleased Premises are in good and clean operating condition
and repair, (iii) the electrical, mechanical, HVAC, plumbing, sewer,
elevator, doors, and other systems serving the Additional Subleased
Premises are in good operating condition and repair and (iv) that there
are no "Hazardous Materials" present in the Additional Subleased Premises.
Sublessor shall, promptly after receipt of notice from Sublessee, remedy
any non-compliance with such warranty at Sublessor's sole cost and
expense.
As an inducement to Sublessee to enter the Sublease Addendum, Sublessor
represents and warrants that (i) the Master Lease is in full force and
effect, and there exists under the Master Lease no default or event of
default by either Lessor or Sublessor, nor has there occurred any event
which, with the giving of notice or the passage of time or both, could
constitute such a default or event of default; (ii) there are no pending
or threatened actions, suits or proceedings before any court or
administrative agency against Sublessor, Lessor or third parties which
could, in the aggregate, adversely affect the Additional Subleased
Premises or any part thereof or the ability of Lessor or Sublessor to
perform their respective obligations under the Master Lease or of
Sublessor to perform its obligations under the Sublease Addendum, and
Sublessor is not aware of any facts that might result in any such actions,
suits or proceedings; (iii) there is no pending or threatened condemnation
or similar proceeding affecting the Premises or any portion thereof, and
Sublessor has no knowledge that any such action currently is contemplated.
Sublessor shall (i) keep the Master Lease in effect; (ii) not modify,
amend or waive any provisions thereof or make any election, exercise any
option, right or remedy, or grant any consent or approval thereunder that
in any such case would affect the Sublessee without, in each instance,
Sublessee's prior written consent; (iii) pay the rent due and perform all
of Sublessor's other obligations under the Master Lease, except to the
extent that Sublessee is obligated to perform such other obligations under
the Sublease Addendum; (iv) not take any action or omit to take any action
that could cause or constitute a breach of the Master Lease or otherwise
give rise to a right of Lessor to terminate the Master Lease or declare
any provision thereof to have become ineffective; and (v) enforce
performance of all obligations of Lessor under the Master Lease. In
enforcing performance of all such obligations of Lessor, Sublessor shall
(a) upon Sublessee's written request, immediately notify Lessor of its
nonperformance under the Master Lease and request that Lessor perform its
obligations under the Master Lease, and (b) permit Sublessee to commence a
lawsuit or other action in Sublessee's name (and assign to Sublessee any
rights of Sublessor required in connection therewith), or commence a
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lawsuit or other action in Sublessor's name, to obtain the performance
required from Lessor under the Master Lease, provided that Sublessee pays
all costs and expenses incurred in connection with any such lawsuit or
other action. Sublessor will also deliver all notices received from or
sent to the Lessor affecting the Additional Subleased Premises, including,
without limitation, any notices relating to any breaches or defaults under
the Master Lease,
6. TERM.
For purposes of this Sublease Addendum, the term of this Sublease Addendum
("Sublease Addendum Term") shall commence on approval of this Sublease
Addendum and, unless earlier terminated, continue until December 31, 2002.
Either Sublessee or Sublessor may terminate this lease earlier in its
discretion upon 75 days (seventy five days) written notice. Sublessor
shall deliver possession of the Additional Subleased Premises no later
than one (1) day after the receipt by Sublessor of the Lessor's consent
referred to in Section 17. Notwithstanding the foregoing, if Sublessor has
not delivered possession to Sublessee within one (1) day after receipt by
Sublessor of the Lessor's consent referred to in Section 17, then at any
time thereafter and before delivery of possession of the Additional
Subleased Premises to Sublessee, Sublessee may give written notice to
Sublessor of Sublessee's intention to terminate this Sublease Addendum in
which case all consideration previously paid by Sublessee to Sublessor on
account of this Sublease Addendum shall be returned to Sublessee, this
Sublease Addendum shall thereafter be of no further force or effect, and
Sublessor shall have no further liability to Sublessee on account of such
delay or cancellation.
7. RENT.
Sublessee shall pay to Sublessor "Additional Basic Rent" of $5,000
for April 2002, or any part thereof and $5,000 per month thereafter. Such
Additional Basic Rent payments shall be without deduction, setoff, notice
or demand, at 10182 Telesis ▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇, or at such other place as Sublessor shall I designate from time to
time by written notice to Sublessee. For the avoidance of doubt, the
foregoing amount is in addition to the amounts required under the
Sublease.
In the event that the Lessor has not provided consent by April 19, 2002,
then either the Sublessor or the Sublessee may cancel this Sublease
Addendum without any further financial or legal obligation to the other
party.
For purposes of this Sublease Addendum, "Base Year" shall mean calendar
year 2000, and Sublesee's "Additional Tenant's Percentage" shall be 2.1%.
For the avoidance of doubt, the foregoing amount is in addition to the
percentage under the Sublease. Sublessee's Additional Tenant's Percentage
is determined by dividing 2,618 rentable square feet in the Additional
Subleased Premises by 122,798, the rentable square feet of the Building
and expressing the result as a percentage. (Both parties acknowledge that
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such square footage is an only a rough estimate for purposes of cost
allocation). Sublessee shall pay Sublessee's Tenant's Percentage of Direct
Expenses and Utilities Costs in the same manner as set forth in, and
pursuant to the terms of, Article 4 of the Master Lease. In no event shall
Sublessee's obligation to pay Direct Expenses and Utilities Costs exceed
Sublessee's Tenant's Percentage share of Direct Expenses and Utilities
Costs due and payable by Sublessor under the Master Lease. Sublessee shall
pay Sublessee's Tenant's Percentage of Direct Expenses and Utilities Costs
as and when the same is due and payable to Lessor under the Master Lease
and no earlier. Sublessee shall be entitled to its pro rata share of all
credits, if any, given by Lessor to Sublessor for Sublessor's and/or
Sublessee's overpayment of Direct Expenses and Utilities Costs. Sublessee
shall be entitled to, and benefit from, any rental abatement granted
Sublessor under the Master Lease for whatever reason to the extent that
such abatement relates to the Additional Subleased Premises and the
Sublease Addendum term. Sublessee shall be permitted to request
after-hours air conditioning services, and the actual amounts for such
services that are charged to Sublessor will be paid by Sublessee.
8. MAINTENANCE.
Sublessee shall have all maintenance obligations of the tenant under the
Master Lease applicable to the Additional Subleased Premises. Sublessor
shall have no maintenance or repair obligations with respect to the
Additional Premises.
9. PERSONAL PROPERTY.
During the Term of the Sublease Addendum, Sublessee shall be allowed to
use the items of personal property (e.g. furniture, etc.) currently
located in the Additional Subleased Premises and as listed and described
on Exhibit B. Sublessee shall keep all such items in good condition and
repair and return same to Sublessor at the end of the Term, subject to
ordinary wear and tear. Any modifications to such items shall be subject
to the prior written approval of Sublessor; provided, however, that in the
event any such modifications are approved, such items shall be returned to
Sublessor at the end of the Sublease Addendum Term with such approved
modifications intact. The parties agree that $374 of the monthly
Additional Basic Rent shall be allocated to the lease of personal property
referenced in this Section 9. For the avoidance of doubt, the foregoing
amount is in addition to the amounts allocated under the Sublease.
10. OTHER PROVISIONS OF SUBLEASE ADDENDUM.
All applicable terms and conditions of the Master Lease are incorporated
into and made a part of this Sublease Addendum as if Sublessor were the
lessor thereunder, Sublessee the lessee thereunder, and the Additional
Subleased Premises the Master Premises. Sublessee assumes and agrees to
perform the lessee's obligations under the Master Lease during the Term to
the extent that such obligations are applicable to the Additional
Subleased Premises, except that the obligation to pay rent to Lessor under
the Master Lease shall be considered performed by Sublessee to the extent
and in the amount rent is paid to Sublessor in accordance with Section 7
of this Sublease Addendum. The parties agree that the Waiver of
Subrogation set forth in Section 22(i) shall apply as between
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Sublessor and Sublessee notwithstanding anything to the contrary in the
Sublease Addendum, Sublease or Master Lease. Sublessee shall not commit or
suffer any act or omission that will violate any of the provisions of the
Master Lease. Sublessor shall exercise due diligence in attempting to
cause Lessor to perform its obligations under the Master Lease for the
benefit of Sublessee. If the Master Lease terminates for any reason other
than a default by Sublessor as Tenant under the Master Lease, Sublease, or
this Sublease Addendum shall terminate and the parties shall be relieved
of any further liability or obligation under this Sublease Addendum. If
the Master Lease terminates for a default by Sublessor as Tenant under the
Master Lease, Sublease, or this Sublease Addendum shall terminate except
as otherwise agreed to by Lessor and Sublessee, and Sublessor shall not be
relieved of any liability or obligation under this Sublease Addendum.
Notwithstanding the foregoing, if the Master Lease gives Sublessor any
right to terminate the Master Lease in the event of the partial or total
damage, destruction, or condemnation of the Master Premises or the
building or project of which the Master Premises are a part, the exercise
of such right by Sublessor shall not constitute a default or breach
hereunder. If Lessor seeks to terminate the Master Lease because of a
default or alleged default by Sublessor under the Master Lease, Sublessor
shall use its reasonable good faith efforts to maintain the Master Lease
in full force and effect for the benefit of Sublessee and Sublessor and to
reinstate the Master Lease and/or to claim and pursue any right of
redemption or relief from forfeiture of the Master Lease (and as a
consequence thereof any forfeiture of the Sublease Addendum) to which
Sublessor may be entitled at law or in equity. Any breach of this Sublease
Addendum will be considered a breach of the Sublease and any breach of the
Sublease will be considered a breach of this Sublease Addendum.
11. NONAPPLICABLE MASTER LEASE PROVISIONS.
Notwithstanding Section 10 above, (a) the following sections of the Master
Lease shall not apply under this Sublease Addendum: In the Summary of
Basis Lease Information: Section 1.2 (Tenant's Address); Section 1.5
(Premises); Section 1.6 (Term); Section 1.7 (Estimate of Commencement
Date); Section 1.8 (Monthly Basic Rent); Section 1.9 (Tenant's
Percentage); Section 1.10 (Base Year); Section 1.11 (Security Deposit);
Section 1.13 (Tenant Improvements); Section 1.15 (Parking with respect to
exclusive spaces only); in the Master Lease itself: Section 1.4 (Suite
400) Article 2 (Term); Article 3.1 (with respect to the amount of Basic
Rent); Section 4.4(g) (first sentence only); Section 5.1 (first and last
sentence only); Section 5.2(a) (first sentence only); Section 5.2(b)
(Letter of Credit amount); Section 6.3(a); Section 7 (only with respect to
specified addresses); Section 8; Section 12.5; Section 12.6; Section 31
(second sentence only); Article 34 (Right of First Refusal); Article 35
(Temporary Space); Article 36 (Option Term); Exhibit B, Exhibit C (Work
Letter Agreement) and Exhibit D; (b) references in the following
provisions to "Landlord" shall mean Lessor only: in the Summary of Basic
Lease Information: Section 1.1; in the Master Lease itself: Sections 1.2;
1.3; 4.2; 4.4(c); 4.4(d); 4.4(e); 4.6; 4.7 (Tenant's Audit Rights); 6.2;
11.2; 12.1(c) (second to last sentence only); 12.1(d); Article 18; Article
19; Article 25; Section 28.1; and Article 30; and Exhibit E.;.
Notwithstanding Section 14 of the Master Lease, a sale or transfer of
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Sublessee's capital stock shall not be deemed an assignment, subletting or
any other transfer of the Sublease Addendum or the Additional Subleased
Premises.
12. SIGNAGE AND PARKING.
Sublessee and Sublessor will mutually agree in good faith on acceptable
signage for both parties in the shared sixth floor reception areas and
lobby signage (subject to the consent of Lessor). Any other signage of
Sublessee will be as Sublessee and Lessor may mutually agree. Sublessee
shall have use of 5 parking spaces per Section 1.16 of the Master Lease,
subject to the other parking provisions of the Master Lease. For the
avoidance of doubt, the foregoing parking space allotment is in addition
to the parking space allotment under the Sublease.
13. ATTORNEYS' FEES.
If Sublessor or Sublessee shall commence legal action against the other
arising out of or in connection with this Sublease Addendum, the
prevailing party shall be entitled to recover its costs of suit and
reasonable attorneys' fees.
14. AGENCY DISCLOSURE.
Sublessor and Sublessee each warrant that they have dealt with no real
estate broker finders, agents or salesmen in connection with this
transaction. Each party agrees to hold the other party harmless from and
against all claims for brokerage commissions, finder's fees or other
compensation made by any other agent, broker, salesman or finder as a
consequence of such party's actions or dealings with such agent, broker,
salesman or finder.
15. COMMISSION.
Neither Sublessee nor Sublessor has any obligation to pay any commission
to any third party in connection with this Sublease Addendum.
16. NOTICES.
All notices and demands, which may or are to be required or permitted to
be given by either party on the other hereunder shall be in writing. All
notices and demands by the Sublessor to Sublessee shall be hand delivered
or sent by nationally recognized overnight courier to the Sublessee at the
Additional Subleased Premises, or to such other place as Sublessee may
from time to time designate in a notice to the Sublessor. All notices and
demands by the Sublessee to Sublessor shall be hand delivered or sent by
nationally recognized overnight courier to the Sublessor at the address
set forth above in Section 7, and to such other person or place as a the
Sublessor may from time to time designate in a notice to the Sublessee.
17. CONSENT BY LESSOR.
THIS SUBLEASE ADDENDUM AND SUBLESSOR'S AND SUBLESSEE'S OBLIGATIONS
HEREUNDER ARE CONDITIONED UPON THE WRITTEN
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CONSENT OF LESSOR IN FORM AND SUBSTANCE SATISFACTORY TO SUBLESSEE AND
SUBLESSOR AND THIS SUBLEASE ADDENDUM SHALL BE OF NO FORCE OR EFFECT UNLESS
CONSENTED TO BY LESSOR, ON OR BEFORE APRIL 19, 2002.
Upon receipt of notice that Lessor has consented to the Sublease Addendum,
Sublessor shall promptly inform Sublessee that such consent has been obtained
so that Sublessee may make arrangement with respect to any work that needs to be
done to the Additional Subleased Premises as part of Sublessee's relocation
thereto.
18. MUTUAL NO-HIRE.
Throughout the Sublease Addendum Term, neither Sublessor nor Sublessee shall
solicit for employment the employees of the other party.
20. MISCELLANEOUS.
Should any provision of this Sublease Addendum be invalid, illegal or
unenforceable, the remaining provisions will continue as valid, legal and
enforceable. This Sublease Addendum and the Sublease constitute the entire
agreement between the parties with respect to its subject matter. No oral
modification or waiver of any provision of this Sublease Addendum will be
binding on either party. Any failure of either party to enforce this Sublease
Addendum as to any breach by the other party will not be deemed to be a waiver.
In the event that the Master Lease is terminated and Lessor recognizes the
Sublease Addendum, upon the written request of Sublessee, Sublessor shall
promptly transfer the security deposit and letter of credit to Lessor, provided
that Sublessee is not then in default under this Sublease Addendum.
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In witness whereof the parties below enter into this Agreement as of the dates
first above written.
SUBLESSOR: WEBSIDESTORY, INC. SUBLESSEE: AVEXUS, INC.,
a Delaware corporation ' a Delaware Corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Name: ▇▇▇ ▇. ▇▇▇▇▇▇
Title: President & CEO Title: Vice President, Finance
Date: April 8, 2002 Date: 4/08/02
CONSENT OF LESSOR:
By:
Name:
Title:
Date:
[Signature Page to Sublease Addendum Agreement for ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇]
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EXHIBIT A
[FLOOR PLAN]
WEBSIDE STORY
6TH FLOOR @ SEAVIEW CORPORATE CENTER
AREA SUMMARY
VERTICAL SHAFTS 909 S.F.
(STAIRS/ELEV./SHAFTS)
COMMON AREA 2,349 S.F.
(RESTROOMS/ELEV. LOBBY/CORRIDOR)
USABLE 15,545 S.F.
(AREAS #1-#9)
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TOTAL 18,803 S.F.
EXHIBIT B
Listing of Personal Property
Each of the seven offices are equipped with desks. No other furniture is located
in the offices.