EXHIBIT 10.10
SUBLEASE
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇
This Sublease (Sublease"), dated APRIL 1, 2001 (the "Execution Date"), is
entered into by and between Inktomi Corporation ("Sublandlord"), and e-centives,
Inc. ("Subtenant").
1. BASIC SUBLEASE PROVISIONS
1.1 PREMISES: The Premises under this Sublease consist of approximately
30,724 rentable square feet located on the second floor of the
building commonly known as ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ (`Building"), which
is located in Redwood City, CA. The Premises demised under this
Sublease constitute the entire premises demised pursuant to the Master
Lease and are depicted on EXHIBIT B-I to the Master Lease.
1.2 MASTER LANDLORD: ▇▇▇▇▇▇▇ Properties, LP
1.3 MASTER LEASE: Lease dated February 7, 2000, entered into by
Sublandlord, as tenant, and Master Landlord, as landlord, a copy of
which is attached hereto as EXHIBIT A.
1.4 TERM: Approximately 9 years and 3 months after the Commencement Date,
beginning on the Commencement Date and ending on the Expiration Date
unless terminated earlier in accordance with the terms and conditions
of this Sublease.
1.5 COMMENCEMENT DATE: April 1, 2001 or the Execution Date, whichever
occurs earlier.
1.6 EXPIRATION DATE: June 30, 2010.
1.7 BASE RENT: $132,236 per month, subject to adjustment as set forth in
Section 19 below.
1.8 SUBTENANT'S SHARE: 100 percent.
1.9 SUBTENANT'S USE: General Office use.
1.10 SUBTENANT'S ADDRESS:
Prior to the Commencement Date: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
After the Commencement Date: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
SUBLANDLORD'S ADDRESS: ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
1.11 SECURITY DEPOSIT. $1,007,282 as provided in Section 18.3 below.
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1.12 BROKERS: For Sublandlord: NONE
For Subtenant: NONE
1.13 DEFINITIONS: Each of the terms in the Basic Sublease Provisions are
used in this Sublease as defined terms and have the meanings given in
such sections. Other capitalized words and phrases for which no
definition is given in this Sublease shall have the meanings given
them in the Master Lease. Unless otherwise indicated, all section
references are to the sections of this Sublease.
2. DEMISE OF PREMISES
2.1 Sublandlord hereby subleases the Premises to Subtenant, and Subtenant
hereby subleases the Premises from Sublandlord, on and subject to the
terms and conditions of this Sublease.
2.2 Sublandlord hereby grants to Subtenant the right to use up to 3.3
unreserved parking spaces per 1000 rentable square feet in the parking
area designated for Sublandlord's use, pursuant to the terms and
conditions of the Master Lease.
2.3 Sublandlord reserves the right, on reasonable prior notice and at
reasonable times, to inspect the Premises, or to exhibit the Premises
to persons having a legitimate interest at any time during the Term.
3. TERM
3.1 The Term shall commence on the Commencement Date which shall be the
later of (i) the Estimated Commencement Date, (ii) the date
Sublandlord delivers possession of the Premises to Subtenant, or (iii)
the date that the Master Landlord gives its written consent to this
Sublease. Subtenant shall, upon request by Sublandlord, execute and
deliver a certificate setting forth the actual Commencement Date.
3.2 If for any reason Sublandlord cannot deliver possession of the
Premises to Subtenant by the Estimated Commencement Date, Sublandlord
shall not be liable therefor, nor shall such failure affect the
validity of this Sublease or the obligations of Subtenant hereunder,
or extend the Expiration Date, but in such case the Commencement Date
will not occur and Subtenant shall not be obligated to pay Rent until
possession of the Premises is tendered to Subtenant.
3.3 The Term shall end on the Expiration Date. However, the Sublease may
be terminated prior to the Expiration Date if the Master Lease is
terminated for any cause whatsoever (and Master Landlord does not
require Subtenant to attorn) or as provided elsewhere in this
Sublease, and the Term shall end on such earlier termination.
4. RENT
4.1 The consideration payable by Subtenant for the Premises shall consist
of the Base Rent under Section 4.2, the Additional Rent under Section
4.3 and the Other Charges
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under Section 4.4. Base Rent, Additional Rent and Other Charges are
collectively referred to as "Rent." Subtenant's covenant to pay Rent
shall be independent of every other covenant in this Sublease.
4.2 Beginning on the Commencement Date and continuing thereafter on the
first day of each month during the Term, Subtenant shall pay to
Sublandlord in advance, and without notice, demand, deduction or
offset, the monthly Base Rent specified in the Basic Sublease
Provisions. Base Rent for any partial month will be prorated, based on
a thirty (30) day month. Subtenant shall pay the first full month's
Rent on the Execution Date, and if the Commencement Date is not the
first day of the month, then Subtenant shall pay the prorated Rent for
the first partial month on the Commencement Date.
4.3 Throughout the Term, Subtenant also shall pay as "Additional Rent" an
amount equal to Subtenant's Share (as specified in the Basic Sublease
Provisions) of all additional rent payable by Sublandlord under the
Master Lease, insofar as applicable to the period encompassed by the
Term, to reimburse Master Landlord for taxes, insurance, operating
expenses, common area maintenance charges, management fees, capital
expenditures for required repairs or improvements, and/or other
expenses incurred by Master Landlord in connection with the Building
(collectively, "Master Lease Pass Through Costs"). To the extent
Master Lease Pass Through Costs are payable on a monthly estimated
basis, the Additional Rent in respect thereto shall be paid as and
when Base Rent is due based on Master Landlord's estimates; and upon
any reconciliation of estimated and actual Master Lease Pass Through
Costs, the corresponding Additional Rent shall be adjusted between
Sublandlord and Subtenant (with appropriate reimbursements or
additional payments) within twenty (20) days after delivery to
Subtenant of any reconciliation statement under the Master Lease. For
purposes of calculating Additional Rent, Sublandlord shall be entitled
to rely conclusively on Master Landlord's determination of estimated
and actual Master Lease Pass Through Costs.
4.4 Throughout the Term, Subtenant also shall pay within five (5) days
after written notice from Sublandlord any other fees, charges or other
sums due under the Master Lease (collectively, "Other Charges"). To
the extent that utility consumption costs, including without
limitation, electric and other charges incurred in connection with
lighting, and providing electrical power and heating, ventilating and
air conditioning service to the Premises are separately metered and
billed directly to Subtenant, Subtenant shall be responsible for
paying all such costs before delinquency as Other Charges. To the
extent such utilities are not separately metered to the Premises and
billed separately from Additional Rent, Subtenant shall pay such Other
Charges prior to delinquency. Other Charges also include: (a) excess
or after hours electrical service or heating, ventilating or air
conditioning service supplied to the Premises; (b) services or
benefits supplied to the Premises at Subtenant's request (or with
Subtenant's acquiescence) for which Master Landlord reserves any right
to impose a fee or charge separate from the Master Lease Pass Through
Costs and actually imposes such fees or charges; (c) to reimburse
Master Landlord for taxes on personal property, equipment and fixtures
located in or about the Premises during the Term; (d) to pay for any
damage to the Building resulting from the act or omission of
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Subtenant or Subtenant's agents, employees or invitees; and (e)
damages recoverable due to a default under the Master Lease which is
the result of any Default or failure of performance by Subtenant under
this Sublease.
4.5 All Rent shall be paid to Sublandlord, or to such other person or such
other place as Sublandlord may from time to time designate in writing.
If any Rent is not paid when due, Subtenant shall pay a late charge to
Sublandlord equal to all interest and late charges as Sublandlord
would sustain under the Master Lease in the case of delinquent payment
of any rent due under the Master Lease. Neither demand for, nor
receipt of, any late charge called for under this Sublease shall (i)
operate to waive any default by Subtenant or provide a substitute for
Subtenant's full and timely performance of the obligation to pay Rent,
or (ii) limit the exercise of any other right or remedy Sublandlord
may have under this Sublease in case of Subtenant's Default.
4.6 In the event of any casualty or condemnation affecting the Premises,
Rent payable by Subtenant shall be proportionately abated, but only as
to the portion of the Premises damaged or taken; and only to the
extent that any amounts payable by Sublandlord under the Master Lease
(the "Master Lease Rent") is abated or reduced with respect to the
Premises. Subtenant shall have no right to terminate the Sublease in
connection with any casualty or condemnation except to the extent that
the Master Lease also is terminated as to the Premises or any material
portion thereof.
5. POSSESSION AND USE
5.1 Except as otherwise expressly provided herein, Sublandlord subleases
the Premises to Subtenant strictly in their present "as-is" and "with
all faults" condition. Sublandlord represents that to Sublandlord's
actual knowledge (but without duty of inquiry), the systems and
equipment serving the Premises are in good working order and condition
as of the Execution Date. Subtenant, by acceptance of possession of
the Premises, conclusively acknowledges the Premises to be in good
order and repair and in a tenantable condition.
5.2 The Premises shall be used and occupied solely for Subtenant's Use as
specified in the Basic Sublease Provisions. Subtenant shall not use or
suffer or permit the Premises to be used for any other purpose except
with Master Landlord's and Sublandlord's discretionary consent.
6. SUBTENANT'S UTILITY, MAINTENANCE AND REPAIR OBLIGATIONS
6.1 Subtenant shall be responsible for and shall pay before delinquency
for all maintenance, repairs and replacements to the Premises and its
equipment, to the extent Sublandlord is obligated to perform the same
under the Master Lease.
6.2 Subtenant shall comply with all laws and ordinances, and all orders,
rules and regulations of all governmental authorities and of all
insurance bodies and their fire prevention engineers at any time in
force, applicable to the Premises or to Subtenant's particular use or
manner of use thereof, to the extent Sublandlord is obligated to
perform the same under the Master Lease.
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6.3 Subtenant shall protect, defend, indemnify and hold Sublandlord
harmless from all liability, loss, cost, damage, liens, costs or
expenses imposed on Sublandlord or which Sublandlord may sustain or
incur from Subtenant's failure to perform its obligations under this
Section 6.
7. SUBTENANT'S INSURANCE AND INDEMNITY
7.1 Throughout the Term, Subtenant shall procure and maintain, at its own
cost and expense, such commercial general liability insurance as is
required to be carried by Sublandlord under the Master Lease, naming
Sublandlord and Master Landlord, as an insured in the manner required
therein, and such property insurance as is required to be carried by
Sublandlord under the Master Lease to the extent such property
insurance pertains to the Premises. If the Master Lease requires
Sublandlord to insure leasehold improvements or alterations, then
Subtenant shall insure such leasehold improvements, which are located
in the Premises, as well as alterations in the Premises made by
Subtenant. Subtenant shall furnish to Sublandlord a certificate of
Subtenant's insurance required under this Section 7.l on or before the
Commencement Date.
7.2 Subtenant waives claims against Sublandlord for damage to property
owned by Subtenant where such damage is covered under any policy of
property damage insurance maintained (or required by this Sublease to
be maintained) by Subtenant, unless such damage is caused solely by
Sublandlord's gross negligence or willful misconduct. Subtenant hereby
waives claims against Master Landlord and Sublandlord for death,
injury, loss or damage of every kind and nature, if and to the extent
that Sublandlord waives or releases such claims against Master
Landlord under the Master Lease. Subtenant agrees to obtain, for the
benefit of Master Landlord and Sublandlord, such waivers of
subrogation rights from its insurer as are required of Sublandlord
under the Master Lease.
7.3 Subtenant agrees to protect, defend, indemnify and hold Sublandlord
harmless from all losses, damages, liabilities and expenses which
Sublandlord may incur, or for which Sublandlord may be liable to
Master Landlord, arising from the acts or omissions of Subtenant, or
any events occurring in or about the Premises during the Term, which
are the subject matter of any indemnity or hold harmless of
Sublandlord to Master Landlord under the Master Lease. Subtenant's
obligations to protect, defend, indemnify and hold harmless
Sublandlord under this Section 7.3 are in no way conditioned upon
either (a) Subtenant's acts or omissions being a cause of any
underlying claim, demand, action, loss or damage, or (b) Sublandlord
being free of negligence or wrongful conduct in connection therewith;
provided, however, that Subtenant shall not be required to indemnify
or hold Sublandlord harmless to the extent it is established that
Sublandlord's gross negligence or willful misconduct is the sole cause
of any claim, demand, action, loss or damage.
8. ASSIGNMENT OR SUBLETTING
8.1 Except with the prior written consent of Master Landlord and
Sublandlord, Subtenant shall not (a) assign, convey or mortgage this
Sublease or any interest under it; (b)
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allow any transfer thereof or any lien upon Subtenant's interest by
operation of law; (c) further sublet the Premises or any part thereof
or (d) permit the occupancy of the Premises or any part thereof by
anyone other than Subtenant. Sublandlord's consent to an assignment of
this Sublease shall not be unreasonably withheld, but Sublandlord may
withhold consent to a further sublease of all or any part of the
Premises in Sublandlord's sole discretion. If Sublandlord consents to
any assignment of this Sublease or further subletting of the Premises,
Sublandlord shall use reasonable efforts to obtain the consent of
Master Landlord. All costs of obtaining Master Landlord's consent
shall be borne by Subtenant.
8.2 No permitted assignment shall be effective and no permitted sublease
shall commence unless and until any default by Subtenant hereunder has
been cured. No permitted subletting shall relieve Subtenant from
Subtenant's obligations and agreements under this Sublease and
Subtenant shall continue to be liable as a principal and not as a
guarantor or surety, to the same extent as though no subletting had
been made.
8.3 Sublandlord shall have the same rights as are afforded Landlord under
the Master Lease to terminate this Sublease and recapture the Premises
in lieu of consenting to an assignment or sublease and, in connection
with any assignment or sublease Sublandlord has approved, to receive
all consideration payable thereunder which is in excess of the Rent
payable under this Sublease.
9. ALTERATIONS
9.1 Subtenant shall not make any alterations in or additions to the
Premises ("Alterations") if to do so would constitute a default under
the Master Lease (without regard to any requirement of notice or cure
period). If Subtenant's proposed Alterations would not constitute a
default under the Master Lease, Sublandlord's consent thereto shall
nonetheless be required, but Sublandlord's consent to such Alterations
shall not be unreasonably withheld, and if Sublandlord consents
thereto, Sublandlord shall use reasonable efforts to obtain the
consent of Master Landlord if such consent is required under the
Master Lease. If Alterations by Subtenant are permitted or consented
to, Subtenant shall comply with all of the covenants of Sublandlord
contained in the Master Lease pertaining to the performance of such
Alterations. In addition, Subtenant shall indemnify, defend and hold
harmless Sublandlord against liability, loss, cost, damage, liens and
expense imposed on Sublandlord arising out of the performance of
Alterations by Subtenant.
9.2 Any permitted Alterations shall be made at Subtenant's sole cost and
expense, including any cost to comply with applicable laws and
regulations and any management or supervision fee charged by Master
Landlord.
10. CASUALTY OR EMINENT DOMAIN
10.1 In the event of a fire or other casualty affecting the Building or the
Premises, or of a taking of all or a part of the Building or the
Premises under the power of eminent
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domain, Sublandlord shall be entitled to exercise any right it may
have to terminate the Master Lease without first obtaining the consent
or approval of Subtenant.
10.2 If the Master Lease imposes on Sublandlord the obligation to repair or
restore leasehold improvements or alterations within the Premises,
Subtenant shall be responsible for all such repair or restoration.
11. SURRENDER
11.1 On the Expiration Date, or upon the earlier termination of the
Sublease or of Subtenant's right to possession of the Premises,
Subtenant will at once surrender and deliver up the Premises, together
with all improvements thereon, to Sublandlord in good condition and
repair, reasonable wear and tear excepted; conditions existing because
of Subtenant's failure to perform maintenance, repairs or replacements
as required of Subtenant under this Sublease shall not be deemed
"reasonable wear and tear." Said improvements shall include all
plumbing, lighting, electrical, heating, cooling and ventilating
fixtures and equipment. Subtenant shall surrender to Sublandlord all
keys to the Premises and make known to Sublandlord the combination of
all combination locks which Subtenant is permitted to leave on the
Premises.
11.2 If Subtenant performs any Alterations, Subtenant shall be obligated to
remove such Alterations and restore the Premises to the condition
existing on the Commencement Date (or on such earlier date as
Subtenant first entered the Premises) if the Master Lease requires
such removal and restoration by Sublandlord. Subtenant shall remove
all other Alterations and all Subtenant Property (as defined in
Section 11.4 below). Any remaining Alterations in or upon the Premises
made by Subtenant, and any other remaining Subtenant Property shall
become a part of and shall remain upon the Premises upon such
termination without compensation, allowance or credit to Subtenant.
Said right shall be exercisable by Sublandlord's giving written notice
thereof to Subtenant not less than twenty (20) days prior to such
Expiration Date or more than twenty (20) days after any earlier
termination. Subtenant shall repair any damage occasioned by such
removal or restoration. If Sublandlord or Master Landlord requires
removal of any Alteration made by Subtenant, or a portion thereof, and
Subtenant does not make such removal in accordance with this Section,
Sublandlord may remove the same (and repair any damage occasioned
thereby), and dispose thereof, or at its election, warehouse the same.
Subtenant shall pay the reasonable costs of such removal, repair and
warehousing on demand.
11.3 As between Sublandlord and Subtenant, Subtenant shall not be required
to remove any alterations performed by Sublandlord prior to the
Commencement Date or to restore the Premises to their condition prior
to Sublandlord's making of such alterations. If Sublandlord is
required under the Master Lease to remove any alterations performed by
Sublandlord prior to the Commencement Date, Subtenant shall permit
Sublandlord to enter the Premises for a reasonable period of time,
subject to such conditions as Subtenant may reasonably impose, for the
purpose of removing such alterations and restoring the Premises as
required by the Master Lease. However, if either Sublandlord or
Subtenant reasonably determines that Sublandlord's entry
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prior to the Expiration Date is not compatible with Subtenant's
continued use of the Premises, then either party may terminate this
Lease upon not less than ten (10) days written notice to the other,
with such termination to be effective on the date of Sublandlord's
re-entry into the Premises for the purpose of removing such
alterations and restoring the Premises.
11.4 On the Expiration Date, or upon the earlier termination of the
Sublease or of Subtenant's right to possession of the Premises,
Subtenant shall remove Subtenant's articles of personal property and
fixtures incident to Subtenant's business ("Subtenant's Property");
provided, however that Subtenant shall repair any injury or damage to
the Premises which may result from such removal, and shall restore the
Premises to the same condition as prior to the installation thereof,
reasonable wear and tear excepted. If Subtenant does not remove
Subtenant's Property from the Premises on or before the Expiration
Date or the earlier termination of this Sublease, Sublandlord may, at
its option, remove the same (and repair any damage occasioned thereby
and restore the Premises as aforesaid) and dispose thereof or
warehouse the same, and Subtenant shall pay the reasonable cost of
such removal, repair, restoration or warehousing to Sublandlord on
demand, or Sublandlord may treat said Subtenant's Property as having
been conveyed to Sublandlord with this Sublease acting as a ▇▇▇▇ of
sale therefor, without further payment or credit by Sublandlord to
Subtenant.
12. HOLDING OVER.
12.1 Subtenant has no right to occupy the Premises or any portion thereof
after the Expiration Date or after the termination of this Sublease or
of Subtenant's right to possession hereunder. In the event Subtenant
or any party claiming by, through or under Subtenant holds over,
Sublandlord may exercise any and all remedies available to it at law
or in equity to recover possession of the Premises, and to recover
damages, including without limitation, damages payable by Sublandlord
to Master Landlord by reason of such holdover.
12.2 Without limiting Sublandlord's rights under Section 12.1, for each and
every month or partial month that Subtenant or any party claiming by,
through or under Subtenant remains in occupancy of all or any portion
of the Premises after the Expiration Date or after the earlier
termination of this Sublease or of Subtenant's right to possession,
Subtenant shall pay, as minimum damages and not as a penalty, monthly
rental at a rate equal to double the rate of Rent payable by Subtenant
hereunder immediately prior to the Expiration Date or the earlier
termination of this Sublease or of Subtenant's right to possession.
The acceptance by Sublandlord of any lesser sum shall be construed as
payment on account and not in satisfaction of damages for such holding
over.
13. ENCUMBERING TITLE
13.1 Subtenant shall not do any act which in any way encumbers the title of
Master Landlord in and to the Building nor shall the interest or
estate of Master Landlord or Sublandlord be in any way subject to any
claim by way of lien or encumbrance, whether by operation of law or by
virtue of any express or implied contract by
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Subtenant, or by reason of any other act or omission of Subtenant. Any
claim to, or lien upon, the Premises or, the Building arising from any
act or omission of Subtenant shall accrue only against the
subleasehold estate of Subtenant and shall be subject and subordinate
to the paramount title and rights of Master Landlord in and to the
Building and the interest of Sublandlord in the Master Lease Premises.
13.2 Without limiting the generality of Section 13.1, Subtenant shall not
permit the Premises or the Building to become subject to any
mechanics', laborers' or materialmen's lien on account of labor or
material furnished to Subtenant or claimed to have been furnished to
Subtenant in connection with work of any character performed or
claimed to have been performed on the Premises by, or at the direction
or sufferance of, Subtenant.
14. SUBTENANT'S DEFAULT
14.1 Any one or more of following events shall be considered a "Default" by
Subtenant, as such term is used in this Sublease:
14.1.1 Subtenant shall be adjudged an involuntary bankrupt, or a
decree or order approving, as properly filed, a petition or
answer filed against Subtenant asking reorganization of
Subtenant under the Federal bankruptcy laws as now or
hereafter amended, or under the laws of any State, shall be
entered, and any such decree or judgment or order shall not
have been vacated or stayed or set aside within thirty (30)
days from the date of the entry or granting thereof; or
14.1.2 Subtenant shall file, or admit the jurisdiction of the court
and the material allegations contained in, any petition in
bankruptcy, or any petition pursuant or purporting to be
pursuant to the Federal Bankruptcy laws now or hereafter
amended, or Subtenant shall institute any proceedings for
relief of Subtenant under any bankruptcy or insolvency laws
or any laws relating to the relief of debtors, readjustment
of indebtedness, re-organization, arrangements, composition
or extension; or
14.1.3 Subtenant shall make any assignment for the benefit of
creditors or shall apply for or consent to the appointment
of a receiver for Subtenant or any of the property of
Subtenant; or
14.1.4 Subtenant shall admit in writing its inability to pay its
debts as they become due; or
14.1.5 A decree or order appointing a receiver of the property of
Subtenant shall be made and such decree or order shall not
have been vacated, stayed or set aside within fifteen (15)
days from the date of entry or granting thereof; or
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14.1.6 Subtenant shall vacate or abandon the Premises during the
Term, other than with the consent of Sublandlord, or assign
this Sublease or further sublet the Premises other than in
strict accordance with Section 8; or
14.1.7 Subtenant fails to make any payment of Rent as and when the
same is due and payable, provided, however, that upon two
occasions during every twelve (12) months of the Term,
Tenant shall receive notice from Sublandlord of delinquency
in the payment of Rent and Subtenant shall have a three (3)
day cure period from the date of delivery of such notice
before Tenant is in default; or
14.1.8 Subtenant fails to secure insurance or to provide proper
evidence of insurance as set forth in Section 7 of this
Sublease or fails to keep the Premises or the Building free
of lien claims as set forth in Section 13 of this Sublease
and either such failure continues for more than fifteen (15)
days after written notice thereof to Subtenant, with such
fifteen (15) days subject to extension by Sublandlord in the
event Sublandlord agrees that more than fifteen (15) days
are reasonably required to cure, and so long as Subtenant
diligently pursues such cure, provided further than in no
event shall a cure period exceed sixty (60) days; or
14.1.9 Subtenant, by its act or omission, causes an event or
condition under the Master Lease which either is a default
thereunder or, subject only to the delivery of any required
notice or passage of any cure or grace period, would
constitute a default thereunder; or
14.1.10 Subtenant fails to fulfill, keep, observe or perform any of
the other covenants and obligations herein contained to be
fulfilled, kept, observed and performed by Subtenant, and
such failure continues for more than fifteen (15) days after
notice thereof in writing to Subtenant.
14.2 Upon the occurrence of any one or more Default(s), Sublandlord may
exercise any remedy against Subtenant which Master Landlord may
exercise for default by Sublandlord under the Master Lease. Without
limiting the generality of the foregoing, Sublandlord may exercise the
damage remedies available under California Civil Code Sections 1951.2
and 1951.4 or any similar or successor statute which provides that a
lessor may continue a lease in effect and recover damages as they
become due.
15. PROVISIONS REGARDING MASTER LEASE
15.1 This Sublease and all rights of the parties hereunder, are subject and
subordinate to all of the terms, covenants and conditions of the
Master Lease, except that Sections 2, 3, 6.A, 7.E., 7.F, 40 and 41 of
the Master Lease shall be excluded. Each party agrees that it will
not, by its act or omission to act, cause a default under the Master
Lease. In furtherance of the foregoing, the parties hereby
acknowledge, each to the other, that it is not practical in this
Sublease to enumerate all of the rights and obligations of the various
parties under the Master Lease and specifically to allocate those
rights and obligations in this Sublease. Accordingly, in order to
afford to Subtenant the benefits
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of this Sublease and of those provisions of the Master Lease which by
their nature are intended to benefit the party in possession of the
Premises, and in order to protect Sublandlord against a Default by
Subtenant which might cause a default by Sublandlord under the Master
Lease, Sublandlord and Subtenant covenant and agree as set forth in
Sections 15.2 through 15.9 below.
15.2 Subtenant shall timely pay all Rent as and when due under this
Sublease and Sublandlord shall pay, as and when due, all Master Lease
Rent.
15.3 Except as otherwise expressly provided in this Sublease, Sublandlord
shall perform its covenants and obligations under the Master Lease
which do not require for their performance possession of the Premises
and which are not otherwise to be performed hereunder by Subtenant on
behalf of Sublandlord.
15.4 Except as otherwise expressly provided in this Sublease, Subtenant
shall perform all affirmative covenants and shall refrain from
performing any act which is prohibited by the negative covenants of
the Master Lease, where the obligation to perform or refrain from
performing is by its nature imposed upon the party in possession of
the Premises. If practicable, Subtenant shall perform affirmative
covenants which are also covenants of Sublandlord under the Master
Lease at least five (5) days prior to the date when Sublandlord's
performance is required under the Master Lease. Sublandlord shall have
the right to enter the Premises to cure any Default by Subtenant for
its failure to act in accordance with this Section.
15.5 Except as otherwise expressly provided in this Sublease, so long as
Subtenant is not in Default, Sublandlord shall not agree to an
amendment to the Master Lease which materially adversely effects
Subtenant's occupancy of the Premises, unless Sublandlord shall first
obtain Subtenant's prior written approval to such amendment (which
approval shall not be unreasonable withheld). However, it is expressly
agreed that: (a) the foregoing shall not prevent Sublandlord from
entering into any agreement or amendment with Master Landlord which
terminates the Master Lease with respect to the Premises in lieu of
Master Landlord granting its consent to this Sublease; (b) if without
the fault of Sublandlord the Master Lease should terminate prior to
the Expiration Date, Sublandlord shall have no liability to Subtenant;
and (c) to the extent the Master Lease grants Sublandlord any
discretionary right to terminate the Master Lease, whether due to
casualty, condemnation, or otherwise, Sublandlord shall be entitled to
exercise or not exercise such right in its sole and absolute
discretion. Subject to the limitations expressed above or elsewhere in
this Sublease, so long as Subtenant is not in Default, Subtenant's
quiet and peaceable enjoyment of the Premises shall not be disturbed
or interfered with by Sublandlord, or by any person claiming by,
through, or under Sublandlord.
15.6 Sublandlord grants to Subtenant the right, so long as Subtenant is not
in Default, to receive all of the services and benefits with respect
to the Premises which are to be provided by Master Landlord under the
Master Lease. Sublandlord shall have no duty to perform any
obligations of Master Landlord which are, by their nature, the
obligation of an owner or manager of real property. By way of
illustration and not limitation, Sublandlord shall not be required to
provide any services (including
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janitorial, utilities, HVAC service, security, or use of common areas
or parking facilities) or to perform any maintenance or repairs which
Master Landlord is or may be required to provide or perform under the
Master Lease. Sublandlord shall have no responsibility for or be
liable to Subtenant for any default, failure or delay on the part of
Master Landlord in the performance or observance by Master Landlord of
any of its obligations under the Master Lease, nor shall such default
by Master Landlord affect this Sublease or waive or defer the
performance of any of Subtenant's obligations under this Sublease,
including without limitation the obligation to pay Rent; and Subtenant
hereby expressly waives the provisions of any statute, ordinance or
judicial decision, now or hereafter in effect, which would give
Subtenant the right to make repairs at the expense of Sublandlord, or
to claim any actual or constructive eviction by virtue of any
interruption in access, services or utilities to, or any failure to
make repairs in or to, the Premises or the Building. Notwithstanding
the foregoing, the parties do contemplate that Master Landlord will,
in fact, perform its obligations under the Master Lease and in the
event of any default or failure of such performance by Master
Landlord, Sublandlord agrees that it will, upon notice from Subtenant,
make demand upon Master Landlord to perform its obligations under the
Master Lease and, provided that Subtenant specifically agrees to pay
all costs and expenses of Sublandlord and provides Sublandlord with
security reasonably satisfactory to Sublandlord to pay such costs and
expenses, Sublandlord will take appropriate legal action to enforce
the Master Lease.
15.7 Any non-liability, release, limitation of liability, indemnity or hold
harmless provision in the Master Lease for the benefit of Master
Landlord shall be deemed to apply under this Sublease and inure to the
benefit of both Sublandlord and Master Landlord.
15.8 If Subtenant desires to take any action which requires the consent of
Master Landlord under the terms of the Master Lease, then,
notwithstanding anything to the contrary herein: (a) Sublandlord,
independently, shall have the same rights of approval or disapproval
as Master Landlord has under the Master Lease; (b) Subtenant shall not
take any such action until it obtains the consent of both Sublandlord
(whose consent shall not be unreasonably withheld) and Master
Landlord; and (c) Subtenant shall request that Sublandlord obtain
Master Landlord's consent on Subtenant's behalf and Sublandlord shall
use commercially reasonable efforts to obtain such consent. Subtenant
shall pay all costs reasonably incurred by Sublandlord in seeking or
procuring Master Landlord's consent. Any approval or consent required
of Sublandlord conclusively shall be deemed reasonably withheld if
approval or consent also is required of the Master Landlord, and
Master Landlord fails to give Master Landlord's approval or consent.
15.9 Subtenant shall protect, defend, indemnify and hold harmless
Sublandlord from any and all liability, damages, liabilities, claims
proceedings, actions, demands and costs (including reasonable
attorneys' fees) resulting, directly or indirectly, from Subtenant's
Default under the Sublease.
16. MASTER LANDLORD'S CONSENT
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16.1 This Sublease and the obligations of the parties hereunder are
expressly conditioned upon Sublandlord's obtaining prior written
consent hereto by Master Landlord. Subtenant shall promptly deliver to
Sublandlord any information reasonably requested by Master Landlord
(in connection with Master Landlord's approval of this Sublease) with
respect to the nature and operation of Subtenant's business and/or the
financial condition of Subtenant.
16.2 Sublandlord and Subtenant hereby agree, for the benefit of Master
Landlord, that this Sublease and Master Landlord's consent hereto
shall not (a) create privity of contract between Master Landlord and
Subtenant; (b) be deemed to have amended the Master Lease in any
regard (unless Master Landlord shall have expressly agreed writing to
such amendment); or (c) be construed as a waiver of Master Landlord's
right to consent to any assignment of the Master Lease by Sublandlord
or any further subletting of the Premises, or as a waiver of Master
Landlord's right to consent to any assignment by Subtenant of this
Sublease or any sub-subletting of the Premises or any part thereof.
Master Landlord's consent shall, however, be deemed to evidence Master
Landlord's agreement that Subtenant shall be entitled to waiver of
claims and of the right of subrogation for damage to Master Landlord's
property if and to the extent that the Master Lease provides such
waivers for the benefit of Sublandlord.
16.3 If Master Landlord fails to consent to this Sublease within thirty
(30) days after the Execution Date, either party shall have the right
to terminate this Sublease by giving written notice thereof to the
other at any time thereafter, but before Master Landlord grants such
consent.
17. NOTICES
17.1 All notices which may or are required to be given by either party to
the other shall be in writing and shall be deemed given when received
or refused if personally delivered, or if sent by United States
registered or certified mail, postage prepaid, return receipt
requested, or if sent by a nationally recognized overnight commercial
courier service providing receipted delivery, in any such case (a) if
to Subtenant, addressed to Subtenant at the address specified in the
Basic Sublease Provisions or at such other place as Subtenant may from
time to time designate by notice in writing to Sublandlord (provided,
however, if Subtenant has abandoned the Premises, any such notice may
be properly sent to Subtenant's agent for service of process), or (b)
if for Sublandlord, addressed to Sublandlord at the address specified
in the Basic Sublease Provisions or at such other place as Sublandlord
may from time to time designate by notice in waiting to Subtenant.
Each party agrees promptly to deliver a copy of any notice, demand,
request, consent or approval received from Master Landlord.
17.2 Any notice delivered by Sublandlord in connection with, or as a
precondition to, a Default by Subtenant shall be in lieu of and not in
addition to any notice to pay rent or notice to perform covenant
required under law.
18. MISCELLANEOUS
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18.1 Sublandlord, as the tenant under the Master Lease identified in
Section 1.3 above, represents and warrants to Subtenant that: (a)
EXHIBIT A to this Sublease is a full and complete copy of the Master
Lease; (b) the Master Lease, as of the Execution Date, is in full
force and effect and constitutes the entire agreement of Master
Landlord and Sublandlord relating to the lease of the Premises, and
(c) to the actual knowledge of Sublandlord (without duty of inquiry),
there exists no event of default under the Master Lease and there
exists no event which would constitute an event of default under the
Master Lease but for the giving of any required notice and passage of
any applicable grace or cure period; (d) the person or persons
executing this Sublease for Sublandlord are fully authorized to so act
and no other action is required to bind Sublandlord to this Sublease;
(e) Sublandlord has the right and power to execute and deliver this
Sublease and to perform its obligations hereunder, subject only to
Master Landlord's consent and (f) this Sublease constitutes the legal,
valid and binding agreement of Sublandlord and is enforceable in
accordance with its terms.
18.2 Subtenant represents and warrants to Sublandlord that: (a) Subtenant
is familiar with the provisions of the Master Lease insofar as they
pertain to the Premises and Subtenant's use and occupation thereof
under this Sublease; (b) Subtenant has the right and power to execute
and deliver this Sublease and to perform its obligations hereunder;
(c) the person or persons executing this Sublease for Subtenant are
fully authorized to so act and no other action is required to bind
Subtenant to this Sublease; (d) Subtenant is duly organized and in
good standing in its state of formation and is authorized to conduct
business in the state where the Premises are located and (e) this
Sublease constitutes the legal, valid and binding agreement of
Subtenant and is enforceable in accordance with its terms.
18.3 The Security Deposit to be presented by Subtenant for this Sublease
shall be in the form of an unconditional, irrevocable letter of credit
("LOC") to be delivered by Subtenant to Sublandlord as soon as
possible and before the Commencement Date for an initial term
extending thirty (30) days beyond the expiration date of this Sublease
or any extension thereto. The form of the LOC shall be acceptable to
Sublandlord and shall be issued by an LOC bank selected by Subtenant
and approved by Sublandlord. The LOC shall expressly state that it
shall survive termination of this Sublease until Master Landlord has
returned Sublandlord's Security Deposit and Letter of Credit provided
by Sublandlord under the Master Lease. An LOC bank is a bank that
accepts deposits, maintains accounts, has a local office that will
negotiate a letter of credit, and the deposits of which are insured by
the Federal Deposit Insurance Corporation. Subtenant shall pay all
expenses, points, or fees incurred by Subtenant in obtaining the LOC.
The LOC shall not be mortgaged, assigned or encumbered in any manner
whatsoever by Subtenant without the prior written consent of
Sublandlord. Subtenant understands and acknowledges that Sublandlord
has the right to transfer or mortgage its interest in the Lease and
that in the event of any such transfer or mortgage, Sublandlord shall
have the right to transfer or assign the LOC to the transferee or
mortgagee, and in the event of such transfer, Subtenant shall look to
such transferee or mortgagee for the return of the LOC.
18.4 On the Execution Date, Subtenant shall deposit with Sublandlord the
Security Deposit in the amount specified in the Basic Sublease
Provisions, as security for the full and
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faithful performance of every provision of this Sublease to be
performed by Subtenant. If Subtenant Defaults with respect to any
provision of this Sublease, including but not limited to the
provisions relating to the payment of Rent, Sublandlord may use, apply
or retain all or any part of the Security Deposit for the payment of
any Rent or any other amount which Sublandlord may spend or become
obligated to spend by reason of Subtenant's Default, to repair damages
to any part of the Premises or the Building, to clean the Premises or
to compensate Sublandlord for any other loss or damage which
Sublandlord may suffer by reason of Subtenant's Default. Sublandlord
shall not be required to keep the Security Deposit separate from its
general funds, and Subtenant shall not be entitled to interest on the
Security Deposit. If Subtenant shall fully and faithfully perform
every provision of this Sublease to be performed by it, the Security
Deposit or any balance thereof shall be returned to Subtenant within
three weeks of the Expiration Date or such earlier termination of this
Sublease.
18.5 Subtenant agrees to comply with all rules and regulations that Master
Landlord has made or may hereafter from time to time make for the
Building. Sublandlord shall not be liable in any way for damage caused
by the non-observance by any of the other tenants of such similar
covenants in their leases or of such rules and regulations.
18.6 Each party warrants to the other that it has had no dealings with any
broker or agent in connection with this Sublease, except those Brokers
specified in the Basic Sublease Provisions. Each party covenants to
protect, defend, indemnify and hold harmless the other party from and
against any and all costs (including reasonable attorneys' fees),
expense or liability for any compensation, commission and charges
claimed by any broker or other agent, other than the Brokers, with
respect to this Sublease or the negotiation thereof on behalf of such
party.
18.7 Sublandlord shall not be deemed in default with respect to any of the
terms, covenants and conditions of this Sublease on Sublandlord's part
to be performed, if Sublandlord's failure to timely perform same is
due in whole or in part to any strike, lockout, labor trouble (whether
legal or illegal), civil disorder, failure of power, restrictive
governmental laws and regulations, riots, insurrections, war,
shortages accidents, casualties, acts of God, acts caused directly by
Subtenant or Subtenant's agents, employees and invitees or any other
cause beyond that reasonable control of Sublandlord.
18.8 On the Commencement Date, Subtenant shall reimburse Sublandlord for
any fees or consideration which Sublandlord is required to pay to
Master Landlord under the Master Lease on account of its consideration
of Sublandlord's request to enter into this Sublease.
18.9 During the Term, Subtenant shall be allowed to use the furniture
systems which are located in the Premises and described in EXHIBIT B
to this Sublease (the "Furniture"). The Furniture is made available
for Subtenant's use on an "as is" and "with all faults" basis, and
Sublandlord shall have no obligation to alter or repair the Furniture
in anticipation of Subtenant's use. No separate charge shall be
payable for Subtenant's use of the Furniture, but such right of use
shall end upon the Expiration Date or the
15
earlier termination of this Sublease or Subtenant's right to
possession of the Premises. During the Term, Subtenant shall (a)
insure the Furniture against loss, (b) maintain the Furniture in good
condition and repair, (c) not remove the Furniture from the Premises
except with Sublandlord's consent, and (d) bear all risk of loss to
the Furniture.
19. RENT ADJUSTMENT
Rent for the Premises shall increase annually as follows: Months 25-36
of the Master Lease $141,965 plus Operating Expenses as set forth
above, Months 37-48 of the Master Lease $147,050 plus Operating
Expenses as set forth above, Months 49-60 of the Master Lease $152,288
plus Operating Expenses as set forth above, Months 61-72 of the Master
Lease $157,682 plus Operating Expenses as set forth above, Months 73-84
of the Master Lease $163,239 plus Operating Expenses as set forth
above, Months 85-96 of the Master Lease $168,962 plus Operating
Expenses as set forth above, Months 97-108 of the Master Lease $174,856
plus Operating Expenses as set forth above, and Months 109-120 of the
Master Lease $180,928 plus Operating Expenses as set forth above.
IN WITNESS WHEREOF, Sublandlord and Subtenant have executed this Sublease on the
dates set forth below, intending to be bound hereby.
SUBLANDLORD: SUBTENANT:
e-centives, Inc.
a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its: Executive Vice President and Chief By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Financial Officer ---------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Date: March 28, 2001 Its: Chairman and Chief Executive
------------------------------------------- Officer
Date: March 28, 2001
------------------------------
[MUST BE CEO, CHAIRMAN OF THE BOARD,
PRESIDENT OR VICE PRESIDENT]
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EXHIBIT A
MASTER LEASE
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EXHIBIT B
FURNITURE
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