EXHIBIT 10.19
SUB-SUBLEASE
BETWEEN
GOOGLE INC.
AND
AVENUE A LLC, A NEW YORK LIMITED LIABILITY COMPANY
18th, 19th and 20th Floors
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
SUB-SUBLEASE
THIS SUB-SUBLEASE ("Sublease") is entered into as of May 22, 2006, by and
between GOOGLE INC., a Delaware corporation ("Sublandlord") and AVENUE A LLC, a
New York limited liability company ("Subtenant"), with reference to the
following facts:
A. Pursuant to that certain Lease dated December 31, 1999 (the "Original
Master Lease"), as the same has been amended by an amendment dated as of July
13, 2000 ("First Master Lease Amendment") and March 16, 2001 ("Second Master
Lease Amendment") (the Original Master Lease, as amended by the First Master
Lease Amendment and the Second Master Lease Amendment, herein referred to as
"Master Lease"), 1440 Partners, LLC ("Landlord"), as successor-in-interest to
▇▇▇▇ ▇▇▇▇▇▇▇▇ Partners, LLC, leases to ▇▇▇▇▇.▇▇▇, Inc. ("Master Sublandlord"),
as tenant, certain space (the "Master Lease Premises") on the 13th, 14th, 15th,
17th, 18th, 19th, 20th and 21st floors of the Building located at ▇▇▇▇ ▇▇▇▇▇▇▇▇
in New York, New York (the "Building"), containing an aggregate of 102,840
rentable square feet of space.
B. Pursuant to the terms of that certain Agreement of Sublease dated as of
May 3, 2002 (the "Original Master Sublease", as the same has been amended by
that certain First Amendment of Sublease dated as of September 16, 2003 (the
"First Amendment") and by that certain Second Amendment of Sublease dated as of
January 31, 2004 (the "Second Amendment") (the Original Master Sublease, as
amended by the First Amendment and the Second Amendment, being referred to
herein as the "Master Sublease"), Master Sublandlord subleases to Sublandlord
(as successor-in-interest to Google Inc., a California corporation) a portion of
the Master Lease Premises (the "Master Subleased Premises") consisting of the
entire 18th, 19th, 20th and 21st floors of the Building.
C. Subtenant wishes to sublease from Sublandlord, and SublaTheresa
Sundndlord wishes to sublease to Subtenant, a portion of the Master Subleased
Premises containing approximately 79,704 rentable square feet, and comprised of:
(i) the entire 18th floor of the Building ("18th Floor"), containing
29,872 rentable square feet;
(ii) the entire 19th floor of the Building ("19th Floor"),
containing 26,696 rentable square feet; and
(iii) the entire 20th floor of the Building ("20th Floor"),
containing 23,136 rentable square feet,
said space being more particularly identified and described on the floor plans
attached hereto as EXHIBITS ▇-▇, ▇-▇ ▇▇▇ ▇-▇ and incorporated herein by
reference (the "Subleased Premises").
NOW, THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged by the parties, Sublandlord and Subtenant hereby agree as follows:
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1. Sublease. Sublandlord hereby subleases to Subtenant and Subtenant
hereby subleases from Sublandlord for the term, at the rental, and upon all of
the conditions set forth herein, the Subleased Premises.
2. Term.
(a) Generally. The term of this Sublease ("Term") shall commence on
the date (the "Commencement Date") that is the later to occur of (x) August 15,
2006 and (y) the date that Sublandlord delivers possession of the Subleased
Premises to Subtenant in the condition required hereunder and (z) the date upon
which Sublandlord procures Landlord's and Master Sublandlord's consent to this
Sublease (together, the "Consent", and the date upon which Sublandlord procures
the Consent being the "Effective Date") and end on October 30, 2015 (the
"Expiration Date"), unless sooner terminated pursuant to any provision hereof.
Sublandlord will use diligent efforts to deliver possession of the Subleased
Premises to Subtenant on or before October 1, 2006. Upon the determination of
the Commencement Date, Sublandlord and Subtenant will enter into a letter
agreement in the form of EXHIBIT B attached hereto.
(b) Sublandlord's Option to Terminate. Sublandlord shall have the
continuing option to terminate this Sublease, effective at any time after the
date of expiration of the thirty-sixth (36th) full calendar month of the Term,
provided that Sublandlord delivers to Subtenant at least one (1) year's advance
written notice of such termination; provided, however, that the effective date
of any such termination ("Early Termination Date") may only be the date of
expiration of the third (3rd) year of the Term ("Initial Termination Date") or
the date that is six (6) months after the Initial Termination Date ("Secondary
Termination Date") or any anniversary of the Initial Termination Date or
Secondary Termination Date. For example, if the Commencement Date is August 15,
2006, the Early Termination Date may only be (x) August 14, 2009, or any
subsequent anniversary of August 14, 2009, or (y) February 14, 2010, or any
subsequent anniversary of February 14, 2010. In the event that Sublandlord
exercises such right to terminate this Sublease, effective as of the Early
Termination Date specified in Sublandlord's notice (subject to the limitation
set forth in the immediately preceding sentence), the Term shall expire, the
same as if the Term were originally fixed to expire as of such date. Sublandlord
may exercise such option to terminate at Sublandlord's sole discretion, and
Sublandlord shall not be required to provide any additional consideration, in
the form of a termination fee or otherwise, to Subtenant in order to exercise
such termination option.
3. Rent.
3.1 Rent Payments. From and after the Commencement Date Subtenant
shall pay to Sublandlord as base rent for the Subleased Premises during the Term
("Base Rent") the following amounts:
20th Floor:
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Base Rent Rate Per
Rentable Square Monthly
Period Foot Per Annum Base Rent
------ ------------------ ----------
Commencement Date - October 31, 2008 $28.00 $53,989.00
November 1, 2008 - November 30, 2008 $29.30 $56,490.40
December 1, 2008 - October 31, 2013 $31.00 $59,768.00
November 1, 2013 - November 30, 2013 $32.30 $62,274.40
December 1, 2013 - October 31, 2015 $34.00 $65,552.00
19th Floor:
Base Rent Rate Per
Rentable Square Monthly
Period Foot Per Annum Base Rent
------ ------------------ ----------
Commencement Date - March 31, 2009 $28.00 $62,290.67
April 1, 2009 - April 30, 2009 $30.20 $67,184.93
May 1, 2009 - March 31, 2014 $31.00 $68,964.67
April 1, 2014 - April 30, 2014 $33.20 $73,858.93
May 1, 2014 - October 31, 2015 $34.00 $75,638.67
18th Floor:
Base Rent Rate Per
Rentable Square Monthly
Period Foot Per Annum Base Rent
------ ------------------ ----------
Commencement Date - March 31, 2009 $28.00 $69,701.33
April 1, 2009 - April 30, 2009 $30.20 $75,177.87
May 1, 2009 - March 31, 2014 $31.00 $77,169.33
April 1, 2014 - April 30, 2014 $33.20 $82,645.87
May 1, 2014 - October 31, 2015 $34.00 $84,637.33
Base Rent shall be paid on the first day of each month of the Term, except that
Subtenant shall pay the first month's Base Rent to Sublandlord upon execution of
this Sublease and delivery of this Sublease to Sublandlord. If the Term does not
begin on the first day of a calendar month or end on the last day of a month,
the Base Rent and Additional Rent (hereinafter defined) for any partial month
shall be prorated by multiplying the monthly Base Rent and Additional Rent by a
fraction, the numerator of which is the number of days of the partial month
included in the Term and the denominator of which is the total number of days in
the full calendar month. ALL RENT (HEREINAFTER DEFINED) SHALL BE PAYABLE IN
LAWFUL MONEY OF THE UNITED STATES, BY REGULAR BANK CHECK OF SUBTENANT, TO
SUBLANDLORD AT THE FOLLOWING ADDRESS:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Lease Administrator
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or to such other persons or at such other places as Sublandlord may designate in
writing.
3.2 Operating Costs.
(a) Definitions. For purposes of this Sublease and in addition
to the terms defined elsewhere in this Sublease, the following terms shall have
the meanings set forth below:
(1) "Additional Rent" shall mean the sums payable pursuant
to Sections 3.2(b), 3.3 and 3.4 below.
(2) "Operating Costs" shall mean the aggregate of Taxes and
Operating Expenses (as defined in the Master Lease) charged by Master
Sublandlord to Sublandlord pursuant to the Master Sublease. The parties
acknowledge that, pursuant to the provisions of the Master Sublease, the Base
Year applicable to Sublandlord's obligation to pay Taxes and Operating Expenses
under the Master Sublease are as follows:
Base Year - Base Year -
Floor Operating Costs Taxes
----- --------------- -----------
18th Floor 2004 2004 - 2005
19th Floor 2004 2004 - 2005
20th Floor 2004 2004 - 2005
(3) "Rent" shall mean, collectively, Base Rent, Additional
Rent, and all other sums payable by Subtenant to Sublandlord under this
Sublease, whether or not expressly designated as "rent", all of which are deemed
and designated as rent pursuant to the terms of this Sublease.
(4) "Subtenant's Percentage Share" shall mean 77.50%.
Subtenant's Percentage Share has been obtained by dividing the rentable area of
the Subleased Premises by the rentable area of the Master Lease Premises and
multiplying such quotient by 100. If the Subleased Premises is delivered to
Subtenant on a floor-by-floor basis, Subtenant's Percentage Share with respect
to each floor will be based upon the date of delivery of the floor and the
number of days in the calendar year in which the floor is a part of the
Subleased Premises; for such purposes, the floors comprising the Subleased
Premises will have the following Percentage Shares:
Floor Percentage Share
----- ----------------
18th Floor: 29.05%
19th Floor: 25.96%
20th Floor: 22.49%
In the event Subtenant's Percentage Share is changed during a calendar year by
reason of a change in the rentable area of the Subleased Premises or the Master
Sublease Premises, Subtenant's Percentage Share shall thereupon be adjusted to
equal the result obtained by dividing the rentable area of the Subleased
Premises by the rentable area of the Master Sublease Premises
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and multiplying such quotient by 100, Subtenant's Percentage Share shall be
determined on the basis of the number of days during such calendar year at each
such Percentage Share.
(b) Payment of Operating Costs. In addition to the Base Rent
payable pursuant to Section 3.1 above, from and after the Commencement Date, for
each calendar year of the Term, Subtenant, as Additional Rent, shall pay
Subtenant's Percentage Share of Operating Costs payable by Sublandlord under the
Master Sublease for the then current calendar year. Sublandlord shall give
Subtenant written notice of Sublandlord's estimate of the amount of Additional
Rent per month payable pursuant to this Section 3.2(b) for each calendar year
following Sublandlord's receipt of Master Sublandlord's invoices therefor as
described in Sections 4(b) and 4(c) of the Original Master Sublease; said
amounts will be payable in accordance with the procedures described in Sections
4(b) and 4(c) of the Original Master Sublease, as incorporated herein by
reference pursuant to Section 7.2 below.
3.3 Electricity. Subtenant shall pay Sublandlord for electrical
service provided to the Subleased Premises in accordance with the provisions of
Section 4(a)(ii) of the Original Master Sublease, Section 6 of the First
Amendment and Section 6 of the Second Amendment (i.e., electricity costs payable
by Subtenant will be those costs of electricity shown on the submeters installed
on the floors comprising the Subleased Premises, plus a three percent (3%) fee
payable to Landlord, and no additional fee payable to Sublandlord or Master
Sublandlord).
3.4 Additional Commission Rent. It is the intention of the parties
that Subtenant shall pay additional rent to Sublandlord ("Commission
Reimbursement Rent") sufficient to reimburse Sublandlord for the commission paid
to Sublandlord's Broker (defined in Section 18 below). Accordingly, concurrently
with each monthly installment of Base Rent hereunder, Subtenant shall
additionally pay to Sublandlord Commission Reimbursement Rent as follows:
Percentage of Applicable Aggregate
Months of Term Monthly Base Rent
-------------- ----------------------------------
1 - 12 2.5%
13 - 24 2.0%
25 - 36 1.75%
37 - 48 1.75%
49 - 60 1.75%
61 - 120 1.25%
For example, if in month 27, the aggregate Monthly Base Rent payable hereunder
is $205,902.00, the applicable Commission Reimbursement Rent payable by
Subtenant as of the first day of such calendar month would be 1.75% of such
aggregate Monthly Base Rent amount, or $3,603.29.
3.5 Subleasing Fees and Costs. Subtenant shall additionally pay as
Additional Rent hereunder, the cost incurred by Sublandlord in the preparation,
negotiation and completion of this Sublease, including, without limitation, (i)
Sublandlord's attorneys' fees and costs associated with the preparation and
negotiation of this Sublease and (ii) any review costs,
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administrative charges or attorneys' fees and costs charged to Sublandlord by
Master Sublandlord or Landlord with respect to said parties' respective review
and approval of this Sublease. Sublandlord and Subtenant expressly acknowledge
that this Section 3.5 shall not be construed to require Subtenant to pay
brokers' commissions incurred by Sublandlord; the provisions of Sections 3.4
above and 17 below, contain the parties' agreement regarding the payment of
commissions payable to Sublandlord's Broker (defined in Section 17 below) and
Subtenant's Broker (defined in Section 17 below).
3.6 Survival. The expiration or earlier termination of this Sublease
shall not affect the obligations of Subtenant to pay any Additional Rent payable
hereunder, and such obligations shall survive, remain to be performed after, any
expiration or earlier termination of this Sublease.
4. Letter of Credit:
(a) Initial Letter of Credit. Concurrently with execution hereof,
Subtenant has delivered to Sublandlord an unconditional, irrevocable,
transferable standby letter of credit (the "Initial Letter of Credit") in the
form attached hereto as EXHIBIT C in the amount of $557,943.00 issued by a
financial institution acceptable to Sublandlord, as security for the full and
faithful performance of Subtenant's obligations under this Sublease. Sublandlord
may draw upon the Initial Letter of Credit or any Replacement Letter of Credit
(as that term is defined below) on or after the occurrence of either: (i) an
uncured event of default under this Sublease; (ii) any failure by Subtenant to
deliver to Sublandlord a Replacement Letter of Credit as and when required
pursuant to this Section 4; (iii) an uncured failure by Subtenant to perform one
or more of its obligations under this Sublease and the existence of
circumstances in which Sublandlord is enjoined or otherwise prevented by
operation of law from giving to Subtenant a written notice which would be
necessary for such failure of performance to constitute an event of default, or
(iv) the appointment of a receiver to take possession of all or substantially
all of the assets of Subtenant, or an assignment of Subtenant for the benefit of
creditors, or any action taken or suffered by Subtenant under any insolvency,
bankruptcy, reorganization or other debtor relief proceedings, whether now
existing or hereafter amended or enacted; provided that in the event of (i) or
(iii), Sublandlord may, at Sublandlord's sole option, draw upon a portion of the
face amount of the Initial Letter of Credit or any Replacement Letter of Credit,
as applicable, as required to compensate Sublandlord for damages incurred (with
subsequent demands at Sublandlord's sole election as Sublandlord incurs further
damage).
(b) Delivery of Replacement Letter of Credit. Subtenant shall
deliver to Sublandlord a new letter of credit (a "Replacement Letter of Credit")
at least thirty (30) days prior to the expiry date of the Initial Letter of
Credit or of any Replacement Letter of Credit held by Sublandlord. Each
Replacement Letter of Credit delivered by Subtenant to Sublandlord shall: (i) be
issued by a banking institution acceptable to Sublandlord in its reasonable
judgment; (ii) be in the same form as the letter of credit attached to this
Sublease as EXHIBIT C; (iii) bear an expiry date not earlier than one (1) year
from the date when such Replacement Letter of Credit is delivered to
Sublandlord; and (iv) be in an amount not less than the amount specified in
Section 4(a). Upon the delivery to Sublandlord of a Replacement Letter of Credit
as described in this Section 4, Sublandlord shall return to Subtenant the
Initial Letter of Credit or any previous Replacement Letter of Credit then held
by Sublandlord.
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(c) Draw Upon Letter of Credit. All proceeds of a draw upon of the
Initial Letter of Credit or any Replacement Letter of Credit shall be, at
Sublandlord's sole election, either: (i) applied by Sublandlord to damages
incurred by Sublandlord as a result of the event giving rise to the draw, or
(ii) held by Sublandlord as a security deposit, and, at the sole election of
Sublandlord, applied on one or more occasions to remedy failures on the part of
Subtenant in the payment of Rent, to repair damages to the Subleased Premises
caused by Subtenant and to clean the Subleased Premises.
(d) Sublandlord's Transfer. If Sublandlord conveys or transfers its
interest in the Subleased Premises and, as a part of such conveyance or
transfer, Sublandlord assigns its interest in this Sublease: (i) the Initial
Letter of Credit or any Replacement Letter of Credit shall be transferred to
Sublandlord's successor; (ii) Sublandlord shall be released and discharged from
any further liability to Subtenant with respect to such Initial Letter of Credit
and any Replacement Letter of Credit; and (iii) any Replacement Letter of Credit
thereafter delivered by Subtenant shall state the name of the successor to
Sublandlord as the beneficiary of such Replacement Letter of Credit and shall
contain such modifications in the text of the Replacement Letter of Credit as
are required to appropriately reflect the transfer of the interest of
Sublandlord in the Subleased Premises.
5. Guaranty. Subtenant shall cause aQuantive, Inc. ("Guarantor") to
execute a Guaranty of Sublease in the form attached to this Sublease as EXHIBIT
D (the "Guaranty"). Subtenant shall have no right to enter into the Subleased
Premises until Subtenant has delivered to Sublandlord the Guaranty, executed by
Guarantor, and Subtenant's failure to deliver such Guaranty within ten (10) days
after the date of mutual execution and delivery of this Sublease shall, at
Sublandlord's option, either (i) void this Sublease and release the parties of
all liability hereunder, or (ii) constitute a material default by Subtenant
without the necessity of notice or opportunity to cure.
6. Use and Occupancy.
6.1 Use. The Subleased Premises shall be used and occupied only for
the purposes permitted under the Master Sublease, and for no other use or
purpose.
6.2 Compliance with Master Sublease. Subtenant agrees that it will
occupy the Subleased Premises in accordance with the terms of the Master
Sublease and will not suffer to be done or omit to do any act which may result
in a violation of or a default under any of the terms and conditions of the
Master Sublease, or render Sublandlord liable for any damage, charge or expense
thereunder. Subtenant further covenants and agrees to indemnify and defend
Sublandlord against and to protect and hold Sublandlord harmless from any claim,
demand, action, proceeding, suit, liability, loss, judgment, expense (including
attorneys' fees and costs) and damages of any kind or nature whatsoever arising
out of, by reason of, or resulting from, Subtenant's failure to perform or
observe any of the terms and conditions of the Master Sublease or this Sublease.
Any other provision in this Sublease to the contrary notwithstanding, Subtenant
shall pay to Sublandlord as Rent hereunder any and all sums which Sublandlord
may be required to pay to Landlord or Master Sublandlord arising out of a
request by Subtenant for, or use by Subtenant of, additional or over-standard
Building services from Landlord or Master Sublandlord (for example, but not by
way of limitation, charges associated with after-hours HVAC usage and
overstandard electrical charges).
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7. Master Sublease.
7.1 Subject to Master Sublease. This Sublease is and shall be at all
times subject and subordinate to the Master Sublease and the Master Lease.
Subtenant acknowledges that Subtenant has reviewed and is familiar with all of
the terms, agreements, covenants and conditions of the Master Sublease.
Additionally, Subtenant's rights under this Sublease shall be subject to the
terms of the Consents. During the Term and for all periods subsequent thereto
with respect to obligations which have arisen prior to the termination of this
Sublease, Subtenant agrees to perform and comply with, for the benefit of
Sublandlord, Master Sublandlord and Landlord, the obligations of Sublandlord
under the Master Sublease which pertain to the Subleased Premises and/or this
Sublease, except for those provisions of the Master Sublease which are directly
contradicted by this Sublease, in which event the terms of this Sublease
document shall control over the Master Sublease.
7.2 Incorporation of Terms of Master Sublease. The terms, conditions
and respective obligations of Sublandlord and Subtenant to each other under this
Sublease shall be the terms and conditions of the Master Sublease, except for
those provisions of the Master Sublease which are directly contradicted by this
Sublease, in which event the terms of this Sublease shall control over the
Master Sublease. Therefore, for the purposes of this Sublease, wherever in the
Master Sublease the word "Sublessor" is used it shall be deemed to mean
Sublandlord and wherever in the Master Sublease the word "Sublessee" is used it
shall be deemed to mean Subtenant. Any non-liability, release, indemnity or hold
harmless provision in (or incorporated into) the Master Sublease for the benefit
of Master Sublandlord or Landlord shall be deemed to inure to the benefit of
Sublandlord, Master Sublandlord, Landlord, and any other person intended to be
benefited by said provision, for the purpose of incorporation by reference in
this Sublease. Any right of Landlord or Master Sublandlord under the Master
Sublease (a) of access or inspection, (b) to do work in the Master Sublease
Premises or in the Building, (c) in respect of rules and regulations shall be
deemed to inure to the benefit of Sublandlord, Master Sublandlord, Landlord, and
any other person intended to be benefited by said provision, for the purpose of
incorporation by reference in this Sublease.
7.3 Modifications. For the purposes of incorporation herein, the
terms of the Master Lease are subject to the following additional modifications:
(a) Approvals. In all provisions of the Master Sublease (under
the terms thereof and without regard to modifications thereof for purposes of
incorporation into this Sublease) requiring the approval or consent of Landlord
and/or Master Sublandlord, Subtenant shall be required to obtain the approval or
consent of Sublandlord, Master Sublandlord and Landlord.
(b) Deliveries. In all provisions of the Master Sublease
requiring Sublandlord to submit, exhibit to, supply or provide Master
Sublandlord and/or 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, Master Sublandlord and Sublandlord.
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(c) Damage; Condemnation. Sublandlord shall have no obligation
to restore or rebuild any portion of the Subleased Premises after any
destruction or taking by eminent domain.
(d) Insurance. In all provisions of the Master Sublease
requiring Sublandlord to designate Landlord and/or Master Sublandlord as an
additional or named insured on its insurance policy, Subtenant shall be required
to so designate Landlord, Master Sublandlord and Sublandlord on its insurance
policy. Provided, however, that notwithstanding any inconsistent terms in the
Master Lease or Master Sublease, Subtenant shall not be in default hereunder due
to the portion of its liability insurance coverage which is provided by an
umbrella policy.
7.4 Exclusions. Notwithstanding the terms of Section 7.2 above,
Subtenant shall have no rights nor obligations under the following parts,
Sections and Exhibits of the Master Sublease:
(a) Original Master Sublease. Section 1(a), Section 2, Section
3(4), Section 3(b), Section 4(f), Section 11, Section 15, Section 17, Section
19, Section 20, Section 21, Section 25, Section 26, Section 27, Section 28(d),
Section 28(e), Section 28(f), Exhibit A, Exhibit B, Exhibit C, Exhibit D.
(b) First Amendment. All except Section 6, Section 7 and
Section 15.
(c) Second Amendment. All except Section 6, Section 7,
Section 12.
7.5 Additional Modifications. Notwithstanding the terms of Section
6.2 above, the following provisions of the Master Sublease are modified as
described below for the purpose of their incorporation into this Sublease:
(a) With respect to references in Section 7(b) of the Original
Master Sublease to certain parties (i.e., "Sublessor", "Sublessee" and
"Landlord"), the provisions of Section 7.2 above shall not apply. However,
Subtenant expressly acknowledges that if, pursuant to the provisions of
Landlord's Consent to the Original Master Sublease (as such Consent has been
modified and supplemented by subsequent consents to the First Amendment and
Second Amendment) and pursuant to the provisions of the Subordination,
Non-Disturbance Agreement and Attornment Agreement dated as of June 28, 2002 and
executed by and among Landlord, Master Sublandlord and Sublandlord (as the same
has been subsequently amended, the "Non-Disturbance Agreement"), if the Master
Lease is terminated and Landlord recognizes Sublandlord as a "direct" tenant
pursuant to the provisions of the Master Sublease, the Base Rent payable
pursuant to the provisions of Section 3.1 above shall be automatically adjusted
to equal the Base Rent payable by Sublandlord under the Master Sublease to
Landlord (i.e., as said Base Rent is modified pursuant to the provisions of the
Non-Disturbance Agreement).
(b) For the purposes of the incorporation of Section 13 of the
Original Master Sublease herein, references therein to the "Prime Lease" shall
be deemed to be references to the Master Lease and the Master Sublease (provided
that such references to the
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Master Lease shall be additionally subject to the provisions of the
Non-Disturbance Agreement and Section 7.5(a) above.
(c) For the purpose of incorporation of Section 22 of the
Original Master Sublease, references therein to the "Prime Lease" shall be
deemed to be references to the Master Lease.
8. Assignment and Subletting. Subtenant shall not assign this Sublease or
further sublet all or any part of the Subleased Premises except subject to and
in compliance with all of the terms and conditions of Section 16 of the Master
Sublease, and Sublandlord (in addition to Landlord and Master Sublandlord) shall
have the same approval rights with respect to assignment and subleasing as
Landlord has under the Master Lease; provided, however, that (x) fifty percent
(50%) of all "bonus rent" in connection with any such assignment or sublease
shall be payable to Sublandlord as and when received by Subtenant. Subtenant
shall pay all fees and costs payable to Landlord and Master Sublandlord in
connection with any proposed assignment, sublease or transfer of the Subleased
Premises, together with all of Sublandlord's reasonable out-of-pocket costs
relating to Subtenant's request for such consent, regardless of whether such
consent is granted, and the effectiveness of any such consent shall be
conditioned upon Landlord's and Master Sublandlord's and Sublandlord's receipt
of all such fees and costs and (y) in connection with any proposed assignment or
subletting by Subtenant, Sublandlord will have the right, to be exercised by
written notice delivered within twenty (20) days after Subtenant's submission of
all necessary materials requesting Sublandlord's consent to such assignment or
sublease, to terminate this Sublease with respect to the space that is the
subject of such proposed assignment or sublease, effective as of the proposed
effective date of such proposed assignment or sublease and (z) in no event will
there be more than three (3) occupants (inclusive of Subtenant and any
sub-subtenants of Subtenant) of the Subleased Premises at any given time.
9. Default. Except as expressly set forth herein, Subtenant shall perform
all obligations in respect of the Subleased Premises that Sublandlord would be
required to perform pursuant to the Master Sublease. It shall constitute an
event of default hereunder if Subtenant fails to perform any obligation
hereunder (including, without limitation, the obligation to pay Rent), or any
obligation under the Master Sublease which has been incorporated herein by
reference, and, in each instance, Subtenant has not remedied such failure after
delivery of any written notice required under this Sublease and passage of fifty
percent (50%) of any applicable grace or cure period provided in the Master
Sublease as modified, if at all, by the provisions of this Sublease, provided
that with respect to non-monetary defaults, Subtenant's cure period shall be the
longer of (A) one-half of, or (B) three (3) days less than, the actual cure
period provided for such non-monetary default under the Master Lease.
10. Remedies. In the event of any default hereunder by Subtenant,
Sublandlord shall have all remedies provided to the "Landlord" in the Master
Lease as if an event of default had occurred thereunder and all other rights and
remedies otherwise available at law and in equity. Without limiting the
generality of the foregoing, Sublandlord may continue this Sublease in effect
after Subtenant's breach and abandonment and recover Rent as it becomes due.
Sublandlord may resort to its remedies cumulatively or in the alternative.
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11. Right to Cure Defaults. If Subtenant fails to perform any of its
obligations under this Sublease after expiration of applicable grace or cure
periods, then Sublandlord may, but shall not be obligated to, perform any such
obligations for Subtenant's account. All costs and expenses incurred by
Sublandlord in performing any such act for the account of Subtenant shall be
deemed Rent payable by Subtenant to Sublandlord upon demand, together with
interest thereon at the lesser of (i) eighteen percent (18%) per annum or (ii)
the maximum rate allowable under law (the "Interest Rate") from the date of the
expenditure until repaid. If Sublandlord undertakes to perform any of
Subtenant's obligations for the account of Subtenant pursuant hereto, the taking
of such action shall not constitute a waiver of any of Sublandlord's remedies.
Subtenant hereby expressly waives its rights under any statute to make repairs
at the expense of Sublandlord.
12. Sublandlord's Liability. Notwithstanding any other term or provision
of this Sublease, the liability of Sublandlord to Subtenant for any default in
Sublandlord's obligations under this Sublease shall be limited to actual, direct
damages, and under no circumstances shall Subtenant, its partners, members,
shareholders, directors, agents, officers, employees, contractors, sublessees,
successors and/or assigns be entitled to recover from Sublandlord (or otherwise
be indemnified by Sublandlord) for (a) any losses, costs, claims, causes of
action, damages or other liability incurred in connection with a failure of
Landlord, its partners, members, shareholders, directors, agents, officers,
employees, contractors, successors and /or assigns to perform or cause to be
performed Landlord's obligations under the Master Lease, (b) lost revenues, lost
profit or other consequential, special or punitive damages arising in connection
with this Sublease for any reason, or (c) any damages or other liability arising
from or incurred in connection with the condition of the Subleased Premises or
suitability of the Subleased Premises for Subtenant's intended uses. Subtenant
shall, however, have the right to seek any injunctive or other equitable
remedies as may be available to Subtenant under applicable law. Notwithstanding
any other term or provision of this Sublease, no personal liability shall at any
time be asserted or enforceable against Sublandlord's stockholders, directors,
officers, or partners on account of any of Sublandlord's obligations or actions
under this Sublease. In the event of any assignment or transfer of the
Sublandlord's interest under this Sublease, which assignment or transfer may
occur at any time during the Term in Sublandlord's sole discretion, Sublandlord
shall be and hereby is entirely relieved of all covenants and obligations of
Sublandlord hereunder accruing subsequent to the date of the transfer and it
shall be deemed and construed, without further agreement between the parties
hereto, that any transferee has assumed and shall carry out all covenants and
obligations thereafter to be performed by Sublandlord hereunder. Sublandlord may
transfer and deliver any then existing Security Deposit to the transferee of
Sublandlord's interest under this Sublease, and thereupon Sublandlord shall be
discharged from any further liability with respect thereto.
13. Attorneys' Fees. If Sublandlord or Subtenant brings an action to
enforce the terms hereof or to declare rights hereunder, the prevailing party
who recovers substantially all of the damages, equitable relief or other remedy
sought in any such action on trial and appeal shall be entitled to receive from
the other party its costs associated therewith, including, without limitation,
reasonable attorney's fees and costs from the other party.
11
14. Delivery of Possession.
14.1 Generally. Sublandlord shall deliver, and Subtenant shall
accept, possession of the Subleased Premises in their "AS IS" condition as the
Subleased Premises exists on the date hereof. Sublandlord shall have no
obligation to furnish, render or supply any work, labor, services, materials,
furniture (other than the Furniture, defined in Section 17 below), fixtures,
equipment, decorations or other items to make the Subleased Premises ready or
suitable for Subtenant's occupancy. In making and executing this Sublease,
Subtenant has relied solely on such investigations, examinations and inspections
as Subtenant has chosen to make or has made and has not relied on any
representation or warranty concerning the Subleased Premises or the Building,
except as expressly set forth in this Sublease. Subtenant acknowledges that
Sublandlord has afforded Subtenant the opportunity for full and complete
investigations, examinations and inspections of the Subleased Premises and the
common areas of the Building. Subtenant acknowledges that it is not authorized
to make or do any alterations or improvements in or to the Subleased Premises
except as permitted by the provisions of this Sublease and the Master Sublease
and the Master Lease and that upon termination of this Sublease, Subtenant shall
deliver the Subleased Premises to Sublandlord in the same condition as the
Subleased Premises were at the commencement of the Term, reasonable wear and
tear excepted provided, that (i) Subtenant will remove from the Subleased
Premises any improvements constructed therein by Subtenant if required pursuant
to Section 14.2 below (ii) Subtenant will remove all telecommunications and data
cabling, fixtures and equipment installed by or for the benefit of Subtenant and
will patch and repair any areas of the Subleased Premises which are damaged by
such removal to the reasonable satisfaction of Sublandlord and Landlord.
14.2 Subtenant's Improvements.
(a) Generally. If Subtenant intends to construct improvements
within the Subleased Premises ("Subtenant Improvements"), all Subtenant
Improvements shall be carried out in accordance with the Master Lease and Master
Sublease. Sublandlord will have the right to approve the plans and
specifications for any proposed Subtenant Improvements, as well as any
contractors whom Subtenant proposes to retain to perform such work, which
approval shall not be unreasonably withheld or delayed. Accordingly, Subtenant
will submit all such information for Sublandlord's review and written approval
prior to commencement of any such work. Subtenant expressly acknowledges that
Landlord, Master Sublandlord or Sublandlord may require Subtenant to remove some
or all of the Subtenant Improvements at the expiration or sooner termination of
the Term; however, if Subtenant requests in writing, concurrently with
Subtenant's submission to Sublandlord of its request for consent to any
Subtenant Improvements, that Sublandlord make an election as to whether or not
Sublandlord desires the subsequent removal of such Subtenant Improvement,
Sublandlord will inform Subtenant of Sublandlord's election concurrently with
Sublandlord's notice of approval of the Subtenant Improvements (if Sublandlord
decides to require Subtenant to remove the Subtenant Improvement in question,
such election will not be binding upon Landlord). Promptly following the
completion of any Subtenant Improvements or subsequent alterations or additions
by or on behalf of Subtenant, Subtenant will deliver to Sublandlord a
reproducible copy of "as built" drawings of such work together with a CAD file
of the "as-built" drawings in the then-current version of AutoCad.
12
(b) Code-Required Work. If the performance of any Subtenant
Improvements or other work by Subtenant within the Subleased Premises "triggers"
a requirement for code-related upgrades to or improvements of any portion of the
Master Leased Premises or any common areas, Subtenant shall be responsible for
the cost of such code-required upgrade or improvements.
15. Holding Over. If Subtenant fails to surrender the Subleased Premises
at the expiration or earlier termination of this Sublease, occupancy of the
Subleased Premises after the termination or expiration shall be that of a
tenancy at sufferance. Subtenant's occupancy of the Subleased Premises during
the holdover shall be subject to all the terms and provisions of this Sublease
and Subtenant shall pay an amount (on a per month basis without reduction for
partial months during the holdover) equal to 200% of the greater of: (1) the sum
of the Base Rent and Additional Rent due for the period immediately preceding
the holdover; or (2) the rent rate then being quoted by Landlord for space in
the Building. No holdover by Subtenant or payment by Subtenant after the
expiration or early termination of this Sublease shall be construed to extend
the Term or prevent Sublandlord from immediate recovery of possession of the
Subleased Premises by summary proceedings or otherwise. In addition to the
payment of the amounts provided above, if Sublandlord is unable to deliver
possession of the Subleased Premises to a new subtenant or to Landlord or Master
Sublandlord, as the case may be, or to perform improvements for a new subtenant,
as a result of Subtenant's holdover or perform improvements, Subtenant shall be
liable to Sublandlord for all damages, including, without limitation,
consequential damages, that Sublandlord suffers from the holdover; Subtenant
expressly acknowledges that such damages may include all of the holdover rent
charged by Landlord or Master Sublandlord under the Master Lease or Master
Sublease as a result of Subtenant's holdover, which Master Lease holdover rent
may apply to the entire Master Lease Premises.
16. Notices: Any notice by either party to the other required, permitted
or provided for herein shall be valid only if in writing and shall be deemed to
be duly given only if (a) delivered personally, or (b) sent by means of Federal
Express, UPS Next Day Air or another reputable express mail delivery service
guaranteeing next day delivery, or (c) sent by United States Certified or
registered mail, return receipt requested, addressed: (i) if to Sublandlord, at
the following addresses:
Google Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Director of Global Facilities
with a copy to:
Google Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Legal Department
13
and (ii) if to Subtenant, at the following addresses:
or at such other address for either party as that party may designate by notice
to the other. A notice shall be deemed given and effective, if delivered
personally, upon hand delivery thereof (unless such delivery takes place after
hours or on a holiday or weekend, in which event the notice shall be deemed
given on the next succeeding business day), if sent via overnight courier, on
the business day next succeeding delivery to the courier, and if mailed by
United States certified or registered mail, three (3) business days following
such mailing in accordance with this Section.
17. Furniture. During the Term, at no charge to Subtenant, Subtenant shall
be permitted to use the furniture located in the Subleased Premises and
described in more particular detail in Exhibit E attached hereto, including
without limitation the AllSteel systems furniture, other than the furniture
noted in EXHIBIT E as either being "rented" furniture or "furniture that Google
will take" (the "Furniture"). Subtenant will be free to remove or dispose of (i)
any Furniture designated in Exhibit E as having "Google" ownership, except for
the Excepted Items, defined below and (ii) any Furniture designated as having
"Primedia" ownership, provided that Master Sublandlord's consent to such
disposal is procured (Sublandlord will use reasonable efforts to assist
Subtenant in procuring Master Sublandlord's approval to any such disposal). As
used herein, the Excepted Items shall mean the conference room tables located in
the following conference rooms within the Subleased Premises:
(i) Eighteenth Floor: Radio City and City Center;
(ii) Nineteenth Floor: Metropolitan, Natural History and TV & Radio;
(iii) Twentieth Floor: Nobu and Gotham.
With respect to the Excepted Items, Subtenant shall either retain the Excepted
Items in their respective conference rooms or may store the Excepted Items at a
facility reasonably acceptable to Sublandlord, but shall not dispose of the
same. At the expiration or sooner termination of this Sublease, Subtenant shall
return the Excepted Items to Sublandlord in the same condition and location in
the Subleased Premises as when received, reasonable wear and tear excepted.
Subtenant shall accept the Furniture in its current condition without any
warranty of fitness from Sublandlord. Subtenant will cause any Furniture which
Subtenant uses (including all Excepted Items) to be insured under Subtenant's
policy of property insurance and will provide Sublandlord with evidence
reasonably satisfactory to Sublandlord of Subtenant's compliance with the
provisions of this sentence.
18. Brokers. Subtenant represents that it has dealt directly with and only
with Newmark ▇▇▇▇▇▇ ▇▇▇▇▇ ("Subtenant's Broker"), as a broker in connection with
this Sublease. Sublandlord represents that it has dealt directly with and only
with ▇▇▇▇▇▇ & Associates ("Sublandlord's Broker"), as a broker in connection
with this Sublease. Sublandlord and Subtenant shall indemnify and hold each
other harmless from all claims of any brokers other than Subtenant's Broker and
Sublandlord's Broker claiming to have represented Sublandlord or Subtenant in
connection with this Sublease. Subtenant and Sublandlord agree that Subtenant's
Broker and Sublandlord's Broker shall be paid commissions by Sublandlord in
connection with this Sublease pursuant to a separate agreement.
14
19. Complete Agreement. There are no representations, warranties,
agreements, arrangements or understandings, oral or written, between the parties
or their representatives relating to the subject matter of this Sublease which
are not fully expressed in this Sublease. This Sublease cannot be changed or
terminated nor may any of its provisions be waived orally or in any manner other
than by a written agreement executed by both parties.
20. Interpretation. Irrespective of the place of execution or performance,
this Sublease shall be governed by and construed in accordance with the laws of
the State of New York. If any provision of this Sublease or the application
thereof to any person or circumstance shall, for any reason and to any extent,
be invalid or unenforceable, the remainder of this Sublease and the application
of that provision to other persons or circumstances shall not be affected but
rather shall be enforced to the extent permitted by law. The table of contents,
captions, headings and titles, if any, in this Sublease are solely for
convenience of reference and shall not affect its interpretation. This Sublease
shall be construed without regard to any presumption or other rule requiring
construction against the party causing this Sublease or any part thereof to be
drafted. If any words or phrases in this Sublease shall have been stricken out
or otherwise eliminated, whether or not any other words or phrases have been
added, this Sublease shall be construed as if the words or phrases so stricken
out or otherwise eliminated were never included in this Sublease and no
implication or inference shall be drawn from the fact that said words or phrases
were so stricken out or otherwise eliminated. Each covenant, agreement,
obligation or other provision of this Sublease shall be deemed and construed as
a separate and independent covenant of the party bound by, undertaking or making
same, not dependent on any other provision of this Sublease unless otherwise
expressly provided. All terms and words used in this Sublease, regardless of the
number or gender in which they are used, shall be deemed to include any other
number and any other gender as the context may require. The word "person" as
used in this Sublease shall mean a natural person or persons, a partnership, a
corporation or any other form of business or legal association or entity.
21. Counterparts. This Sublease may be executed in separate counterparts,
each of which shall constitute an original and all of which together shall
constitute one and the same instrument. This Sublease shall be fully executed
when each party whose signature is required has signed and delivered to each of
the parties at least one counterpart, even though no single counterpart contains
the signatures of all parties hereto.
15
IN WITNESS WHEREOF, the parties hereto hereby execute this Sublease
as of the day and year first above written.
SUBLANDLORD: GOOGLE INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------
Print Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: SVP. CFO
SUBTENANT: AVENUE A LLC, a New York
limited liability company
By: /s/ M. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------
Print Name: M. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: CFO
16
EXHIBIT A-1
SUBLEASED PREMISES - 18TH FLOOR
1
EXHIBIT A-1
[18TH FLOOR PLAN]
2
EXHIBIT A-2
SUBLEASED PREMISES - 19TH FLOOR
1
EXHIBIT A-2
[19TH FLOOR PLAN]
2
EXHIBIT A-3
SUBLEASED PREMISES - 20TH FLOOR
1
EXHIBIT ▇-▇
[▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇]
▇
▇▇▇▇▇▇▇ ▇
COMMENCEMENT AGREEMENT
Date ______________________
Subtenant ______________________
Address ______________________
______________________
______________________
Re: Commencement Letter with respect to that certain Sublease dated as of
the _____ day of __________, 2006, by and between GOOGLE INC., A
DELAWARE CORPORATION, as Sublandlord, and AVENUE A LLC, A NEW YORK
LIMITED LIABILITY COMPANY, as Subtenant, for 79,704 rentable square
feet on the 18th, 19th and 20th floors of the Building located at ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇.
Dear __________________:
In accordance with the terms and conditions of the above referenced
Sublease, Subtenant accepts possession of the Premises and agrees:
1. The Commencement Date is ________________________;
2. The Expiration Date is _________________________.
Please acknowledge your acceptance of possession and agreement to the
terms set forth above by signing all 3 counterparts of this Commencement Letter
in the space provided and returning 2 fully executed counterparts to my
attention.
Sincerely,
____________________________________
Authorized Signatory
Agreed and Accepted:
Subtenant: ______________________
By: ______________________
Name: ______________________
Title: ______________________
Date: ______________________
1
EXHIBIT C
FORM OF LETTER OF CREDIT
ISSUING BANK
ADDRESS OF ISSUING BANK
DATE: _________________
IRREVOCABLE STANDBY LETTER OF CREDIT NUMBER: _________________
BENEFICIARY: APPLICANT:
_______________________ _________________________
_______________________ _________________________
AMOUNT: USD $_______________
EXPIRATION: ____________ AT OUR COUNTERS
WE HEREBY ESTABLISH IN YOUR FAVOR OUR IRREVOCABLE STANDBY LETTER OF CREDIT
NUMBER ________ WHICH IS AVAILABLE WITH [ISSUING BANK] BY PAYMENT AGAINST
PRESENTATION OF THE ORIGINAL OF THIS LETTER OF CREDIT AND YOUR DRAFTS AT SIGHT
DRAWN ON [ISSUING BANK] AT THE ADDRESS ABOVE, ACCOMPANIED BY THE DOCUMENTS
DETAILED BELOW:
A LETTER SIGNED BY A PURPORTED AUTHORIZED REPRESENTATIVE OF THE BENEFICIARY
STATING THAT BENEFICIARY IS ENTITLED TO DRAW ON THIS LETTER OF CREDIT PURSUANT
TO THAT SUBLEASE AGREEMENT BETWEEN _____________________ AND ________________,
AS IT MAY BE AMENDED.
THIS LETTER OF CREDIT CANNOT BE MODIFIED OR REVOKED WITHOUT YOUR WRITTEN CONSENT
OF BENEFICIARY.
SPECIAL CONDITIONS:
THIS LETTER OF CREDIT SHALL AUTOMATICALLY RENEW WITHOUT AMENDMENT FOR AN
ADDITIONAL ONE YEAR PERIOD FROM THE CURRENT OR FOR ANY FUTURE EXPIRATION DATE,
UNLESS WE SHALL NOTIFY YOU IN WRITING BY CERTIFIED MAIL, RETURN RECEIPT
REQUESTED OR OVERNIGHT COURIER AT LEAST 60 DAYS PRIOR TO THE THEN CURRENT
EXPIRATION DATE THAT THIS LETTER OF CREDIT WILL NOT BE RENEWED. FOLLOWING SUCH
NOTIFICATION AND PRIOR TO THE EXPIRATION OF THIS LETTER OF CREDIT, YOU MAY DRAW
UPON THIS LETTER OF CREDIT BY PRESENTATION OF THE SIGHT DRAFT(S) MENTIONED
ABOVE, ACCOMPANIED BY A LETTER SIGNED BY A
1
PURPORTED AUTHORIZED REPRESENTATIVE OF BENEFICIARY STATING THAT BENEFICIARY HAS
NOT BEEN PRESENTED WITH A SUBSTITUTE LETTER OF CREDIT IN THE SAME PRINCIPAL
AMOUNT, AND ON THE SAME TERMS AS THIS LETTER OF CREDIT FROM AN ISSUER REASONABLY
SATISFACTORY TO YOU.
THIS LETTER OF CREDIT IS TRANSFERABLE AND MAY BE TRANSFERRED ONE OR MORE TIMES
BY THE NAMED BENEFICIARY HEREUNDER OR BY ANY TRANSFEREE HEREUNDER TO A SUCCESSOR
TRANSFEREE. TRANSFER OF THIS LETTER OF CREDIT IS SUBJECT TO OUR RECEIPT OF
BENEFICIARY'S INSTRUCTIONS IN THE FORM ATTACHED AS EXHIBIT A, ACCOMPANIED BY THE
ORIGINAL LETTER OF CREDIT AND AMENDMENT(S), IF ANY.
PARTIAL DRAWS ARE ALLOWED UNDER THIS LETTER OF CREDIT.
THIS LETTER OF CREDIT IS SUBJECT TO THE UNIFORM CUSTOMS AND PRACTICE FOR
DOCUMENTARY CREDITS (1993 REVISION), INTERNATIONAL CHAMBER OF COMMERCE
PUBLICATION NO. 500 AND ENGAGES US PURSUANT TO THE TERMS THEREIN.
[ISSUING BANK]
AUTHORIZED SIGNATURE AUTHORIZED SIGNATURE
2
EXHIBIT D
GUARANTY OF SUBLEASE
FOR VALUE RECEIVED and in consideration for and as an inducement to GOOGLE
INC., a Delaware corporation ("Sublandlord") to sublease certain real property
to AVENUE A LLC, a New York limited liability company, as subtenant
("Subtenant"), pursuant to a sublease dated _____________, 2006 (the "Sublease")
by and between Sublandlord and Subtenant, the undersigned, aQuantive, Inc., a
Washington corporation ("Guarantor"), does hereby unconditionally and
irrevocably guarantee to Sublandlord the punctual payment of all Rent (as such
term is defined in the Sublease) payable by Subtenant under the Sublease
throughout the term of the Sublease and any and all renewals and extensions
thereof in accordance with and subject to the provisions of the Sublease, and
the full performance and observance of all other terms, covenants, conditions
and agreements therein provided to be performed and observed by Subtenant under
the terms of the Sublease, for which the undersigned shall be jointly and
severally liable with Subtenant. If any default on the part of Subtenant shall
occur under the Sublease, the undersigned does hereby covenant and agree to pay
to Sublandlord in each and every instance such sum or sums of money and to
perform each and every covenant, condition and agreement under the Sublease as
Subtenant is and shall become liable for or obligated to pay or perform under
the Sublease, together with the costs reasonably incurred by Sublandlord in
connection therewith, including, without limitation, reasonable attorneys' fees.
Such payments of Rent and other sums shall be made monthly or at such other
intervals as the same shall or may become payable under the Sublease, including
any accelerations thereof, all without requiring any notice from Sublandlord
(other than any notice required by the Sublease) of such non-payment or non
performance, all of which the undersigned hereby expressly waives.
The maintenance of any action or proceeding by Sublandlord to recover any
sum or sums that may be or become due under the Sublease and to secure the
performance of any of the other terms, covenants and conditions of the Sublease
shall not preclude Sublandlord from thereafter instituting and maintaining
subsequent actions or proceedings for any subsequent default or defaults of
Subtenant under the Sublease. The undersigned does hereby consent that without
affecting the liability of the undersigned under this Guaranty and without
notice to the undersigned, time may be given by Sublandlord to Subtenant for
payment of Rent and such other sums and performance of said other terms,
covenants and conditions, or any of them, and such time extended and indulgence
granted, from time to time, or Subtenant may be dispossessed or Sublandlord may
avail itself of or exercise any or all of the rights and remedies against
Subtenant provided by law or by the Sublease, and may proceed either against
Subtenant alone or jointly against Subtenant and the undersigned or against the
undersigned alone without first prosecuting or exhausting any remedy or claim
against Subtenant. The undersigned does hereby further consent to any subsequent
change, modification or amendment of the Sublease in any of its terms, covenants
or conditions, or in the Rent payable thereunder, or in the premises demised
thereby, or in the term thereof, and to any assignment or assignments of the
Sublease, and to any subletting or sublettings of the premises demised by the
Sublease, and to any renewals or extensions thereof, all of which may be made
without notice to or consent of the undersigned and without in any manner
releasing or relieving the undersigned from liability under this Guaranty.
The undersigned does hereby agree that the bankruptcy of Subtenant shall
have no effect on the obligations of the undersigned hereunder. The undersigned
does hereby further agree that
1
in respect of any payments made by the undersigned hereunder, the undersigned
shall not have any rights based on suretyship, subrogation or otherwise to stand
in the place of Sublandlord so as to compete with Sublandlord as a creditor of
Subtenant, unless and until all claims of Sublandlord under the Sublease shall
have been fully paid and satisfied.
Neither this Guaranty nor any of the provisions hereof can be modified,
waived or terminated, except by a written instrument signed by Sublandlord. The
provisions of this Guaranty shall apply to, bind and inure to the benefit of the
undersigned and Sublandlord and their respective heirs, legal representatives,
successors and assigns. The undersigned, if there be more than one, shall be
jointly and severally liable hereunder, and for purposes of such several
liability the word "undersigned" wherever used herein shall be construed to
refer to each of the undersigned parties separately, all in the same manner and
with the same effect as if each of them had signed separate instruments, and
this Guaranty shall not be revoked or impaired as to any of such parties by the
death of another party or by revocation or release of any obligations hereunder
of any other party. If Sublandlord should retain counsel and/or institute any
suit against Guarantor to enforce this Guaranty or any covenants or obligations
hereunder, then Guarantor shall pay to Sublandlord, upon demand, all reasonable
attorneys' fees, costs and expenses, including, without limitation, court costs,
filing fees, recording costs, and all other costs and expenses incurred in
connection therewith (all of which are referred to herein as "Enforcement
Costs"), in addition to all other amounts due hereunder. This Guaranty shall be
governed by and construed in accordance with the internal laws of the state
where the premises demised by the Sublease are located. For the purpose solely
of litigating any dispute under this Guaranty, the undersigned submits to the
jurisdiction of the courts of said state.
Any notice or other communication to be given to Sublandlord or the
undersigned hereunder shall be in writing and sent in accordance with the notice
provisions of the Sublease. Notices to Sublandlord shall be delivered to
Sublandlord's address set forth in the Sublease. Notices to the undersigned
shall be addressed as follows: aQuantive, Inc., ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn: Legal Department. If Guarantor's notice address
as set forth above changes, Guarantor agrees to provide written notice to
Sublandlord of such change in address.
IN WITNESS WHEREOF, the undersigned has executed this Guaranty as of the
date of the Sublease.
GUARANTOR:
aQUANTIVE, INC.,
a Washington corporation
By: /s/ M. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Print Name: M. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its: CFO
2
GUARANTOR ACKNOWLEDGMENTS
CORPORATION
STATE OF WASHINGTON)
COUNTY OF KING )ss:
On 5/5/06 before me ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------- -------------------------------------------------------,
Date Name and Title of Officer (e.g., "▇▇▇▇ ▇▇▇, Notary Public")
Personally appeared ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------
NAME(S) OF SIGNER(S)
[X] personally known to me - OR - [ ] proved to me
on the basis of satisfactory
evidence to be the person(s) whose name(s)
is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed
the same in his/her/their authorized capacity
(ies), and that by his/her/their signature(s)
on the instrument the person(s), or the entity
upon behalf of which the person(s) acted,
executed the instrument.
[SEAL] WITNESS my hand and official seal,
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------------------
SIGNATURE OF NOTARY
1
EXHIBIT E
FURNITURE INVENTORY
Highlighted cells are Rental furniture - not property of Google
Green highlighted cells are furniture that Google will take.
Inventory does not reflect cubicle furniture.
Inventory does not include offsite storage.
Does not include RA equipment, Metro, butcher tables
OWNERSHIP ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ TOTAL
--------- ---------- ---------- ---------- -----
TASK CHAIRS
Aeron Chair Primedia 70 32 21 123
Office Master Chair Google 25 24 47 96
Office Star Chair - rental n/a 34 29 57 120
Black Fabric Chair Google 7 7
CONFERENCE/ SIDE CHAIRS
▇▇▇▇▇▇ Chair - mesh Google 2 29 29 60
Black Conference Chair - leopard print Primedia 9 9
▇▇▇▇▇ wood chair - blue fabric seat Primedia 14 12 7 33
Pine wood chair - plaid fabric seat Primedia 3 2 5
Red vinyl chair Primedia 5 5
Black vinyl chair Primedia 0
Black leather chair Primedia 22 18 8 48
Black leather chair w/ chrome handles Google 6 6
▇▇▇▇▇ leather chair Google 0
Black fabric stack chair Google 61 61
misc. side chair - gold fabric Google 0
misc. wood side chair - aqua fabric Google 0
misc. wood chair - black leather Google 0
misc. chair - black fabric Google 16 16
CONFERENCE TABLES/ CREDENZA
Round 30" - wood Primedia 1 1
Round 36" - wood Primedia 4 1 2 7
Round 42" - wood Primedia 3 3 6
Round 48" - wood Primedia 2 2
1
Round 60" - wood Google 0
Round 72" - wood Primedia 1 1
Oval 72" - wood Google 0
Oval 96" - wood Primedia 1 1 2
Oval 102" - wood Primedia 1 1
Oval 108" - wood Google 0
Oval 144" - wood Primedia 1 1
Rectangle Table 72" - wood Primedia 1 1
Rectangle Laminate Table 48" - wood grain Google 5 5
Rectangle Laminate Table 60" - black Google 0
Rectangle Laminate Table 72" ▇▇▇▇ Google 0
Rectangle Laminate Table 84" - ▇▇▇▇ Google 1 1
Rectangle Laminate Table 96" ▇▇▇▇ Google 0
Conference Table 60" Primedia 0
Conference Table 84" - ▇▇▇▇▇▇ ▇▇▇▇ Google 0
Conference Table 96" - glass Primedia 1 1
Conference Table 120" - pine wood Primedia 1 1
Conference Table 144" - ▇▇▇▇▇ ▇▇▇▇ Primedia 0
Conference Table 202" X 92" - Turing Room Google 0
Conference Table 228" - Metropolitan Primedia 1 1
Conference Table 276" - Times Square Google 0
Training Table Wood 48" - nesting, casters Google 3 3 6
Training Table Wood 60" - nesting, casters Google 13 5 18
??? Table - nesting/ casters - white Google 1 1
Credenza 30" Primedia 1 1
Credenze 49" Primedia 0
Credenza 72" - wood Primedia 1 1
Credenza 96" - ▇▇▇▇▇▇ ▇▇▇▇ Primedia 1 1
DESKS
▇▇▇▇ laminate 45" n/a 1 1
Black laminate 45" n/a 1 1
Adjustable 48" - tan base Primedia 4 2 6
Light Wood Table w/ black legs 48" Primedia 1 1 2
Single ped desk 60" - wood Google 0
Double ped desk 60" - metal Google ▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇" (IKEA) Google 1 1
Desk 60" - blue (IKEA) Google 1 1
2
Wood desk 62" - with return Google 0
Wood desk 72" - with return Primedia 1 1
Wood desk 84" - with return Primedia 2 2
Double ped desk 66" Google 0
Krueg table 66" - adjustable height Google 61 17 49 127
??? Desk 67" - ▇▇▇▇/ ▇▇▇▇▇ Primedia 4 4
??? Desk 71" - ▇▇▇▇ Primedia 1 1
Double ped desk 72" Google 0
Wood desk w/ black legs 72" - tan Primedia 1 1
"Half-oval" desk w/ black legs - light wood Primedia 1 ▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ Glass Side Table 18" Primedia 8 9 2 19
Square Side Table 16" Google 0
Square Side Table 24" Primedia 2 2
Square Side Table 30" Google 2 2
Square Side Table 32" Primedia 1 1
Sofa Side Table 26" - wood Primedia 1 1
Rectangle Side Table 44" - blond wood Primedia 1 1
Silver Aluminum Round Side Table 20" Google 1 1
▇▇▇▇▇ ▇▇▇▇▇ Side Table 21" Primedia 0
Red Oval Table 30" Primedia 1 1
Red Adjustable Laminate Round Table 30" Primedia 0
CABINETS
Mobile Ped Box/ Box/ File All Steel (blue steel) - lip pull Primedia ▇▇▇ ▇▇ ▇▇ 187
Mobile Ped Box/ Box/ File All Steel (tan/ ▇▇▇▇) - lip pull Google 12 9 21
Mobile Ped Box/ Box/ File All Steel (tan) - flat pull Google 14 17 25 56
Mobile Ped Box/ Box/ File (black) - lip pull Google 7 8 5 20
Mobile Ped Box/ Box/ File (other color) Primedia 1 1
Mobile Ped - wood Google 0
Mobile Ped Metal - w/ handles Google 0
Stationary Ped File - metal Google 0
File/ File Fire King Cabinet Primedia 1 1
2-Drawer Lateral file 36" - tan wood Google 1 1
2-Drawer Lateral file 30" Primedia 4 9 2 15
3
2-Drawer Lateral file 36" Primedia 3 1 4
2-Drawer Lateral file 42" Primedia 25 6 1 32
3-Drawer Lateral file 30" Primedia 0
3-Drawer Lateral file 36" Primedia 0
3-Drawer Lateral file 42" Primedia 11 11
4-Drawer Lateral file 30" Primedia 3 3
4-Drawer Lateral file 36" Primedia 4 4
5-Drawer Lateral file 30" Primedia 2 2
5-Drawer Lateral file 36" Primedia 10 5 15
5-Drawer Lateral file 42" Primedia 1 1
2-Door Cabinet 36" Google 9 4 4 17
DINER
▇▇▇▇ Laminate Table - round 36" Google 7 7
▇▇▇▇ Laminate Table - 48" Google 7 7
▇▇▇▇ Laminate Table - 72" Google 5 5
Black plastic stack chair Google 87 87
Blue Stools Google 15 15 30
Black cafe tables Google 6 6 12
SOFAS/ LOUNGE CHAIRS
Black Leather Massage Chair Google 1 1
Club chair - black leather Google 0
Club chair - blue solid (rounded back) Google 3 2 5
Club chair - red solid (rounded back) Google 0
Club chair - green solid (rounded back) Google 0
Club chair - red solid (square back) Google 2 4 6
Club chair - blue checked Primedia 1 1
Club chair - black/red Google 0
Blue sofa - blue solid (rounded back) 66" Google 1 1 2
Red sofa - red solid (square back) 69" Google 1 1
Blue sofa - blue solid (rounded back) 69" (IKEA) Google 0
Purple sofa - purple velvet solid (round back) 78" Google 0
Black sofa - black velvet solid (round back) 88" Google 1 1
Lime sofa - lime solid 66" Google 1 1
White sofa - white solid 70" (IKEA) Google 1 1
Orange sofa - orange solid 72" Google 1 1
Red sofa - red solid 85" (IKEA) Google 1 1
4
Dark Blue sofa - dark blue solid 91" - two pieces Google 0
Ottoman - red Google 0
Ottoman - blue Google 0
Ottoman - green Google 0
BOOKSHELVES
Bookshelves 5 shelf high 30" Primedia 1 1 2
Bookshelves 5 shelf high 36" Primedia 2 2 4
Bookshelves 4 shelf high 14" - pine wood (IKEA) Google 0
Bookshelves 3 shelf high 27.5" Primedia 1 1
Bookshelves 3 shelf high 36" Google 11 9 5 25
Bookshelves 2 shelf high 24" Primedia 0
Bookshelves 2 shelf high 36" Primedia 1 1
MISC
Folding plastic chairs Google 179 19 4 202
Chair caddy Google 5 5
"Five Finger Discount" plastic chair Google 1 4 5
Light blue cafe tables Google 6 6
Stool - black fabric 0
Pine Stool w/ metal legs Primedia 4 4
Pine Stool w/ metal legs (seat backing) Primedia 0
Round Laminate Table 36" 0
Square Laminate Table 36" white 0
Round Table 54" 1 1
Metal Mail Table 60" 1 1
▇▇▇▇▇ Folding Table 60" 1 1
Wood Table 24" X 21" 1 1
TV/ Entertainment Table 42" 0
Wood Coffee Table 47" 0
▇▇▇▇▇ ▇▇▇▇ Coffee Table 50" 1 1
Drafting Table 60" 0
Antique Wood Table 72" 0
Pine Wood Kids' Desk 0
Pine Wood Kids' chairs 0
Pine Wood 2-Door Cabinet (IKEA) 0
4-Drawer Dresser 36" - knotted wood 0
Refrigerator 3 5 1 9
Microwave 2 3 5
***
NOTE:
5
