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EXHIBIT 10.22
AGREEMENT OF SUBLEASE
THIS AGREEMENT OF SUBLEASE (hereinafter referred to as the "Sublease")
is made and entered into this 11th day of August, 2000, by and between iXL,
INC., a Delaware corporation (hereinafter referred to as the "Sublessor"), and
VENTURE CATALYST INCORPORATED, a Utah corporation (hereinafter referred to as
the "Sublessee").
WITNESSETH:
WHEREAS, Sublessor, as successor-in-interest to iXL-Los Angeles, Inc.,
the successor-in-interest to Boxtop Interactive, Inc., is the tenant under that
certain lease agreement with EOP-10960 Wilshire, L.L.C., as
successor-in-interest to Beacon Properties, L.P., (the "Master Landlord") dated
October 14, 1997, as amended by commencement letter dated March 13, 1998, First
Amendment dated April 9, 1998, Second Amendment dated May 19, 1999, Landlord
consent to merger dated May 19, 1999, Third Amendment dated May 20, 1999 and
Fourth Amendment dated January 11, 2000 (collectively, the "Master Lease") for
approximately 9,826 square feet of office space on the 14th and 15th floors (the
"Master Lease Premises") in the building commonly known as 00000 Xxxxxxxx
Xxxxxxxxx in Los Angeles, California (the "Building");
WHEREAS, Sublessee desires to sublease from the Sublessor a portion of
the Master Lease Premises leased by Sublessor under the Master Lease with Master
Landlord; and
WHEREAS, the parties hereto desire to provide for the rental and further
terms and conditions of such sublease;
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements hereinafter set forth, the parties hereto agree as follows:
1. Sublease Premises. The Sublessor does hereby sublease to this Sublessee, and
the Sublessee does hereby sublease from the Sublessor, upon the terms and
conditions hereinafter provided, space located on the fourteenth (14th) floor of
the Building known as Suite 1410 (hereinafter referred to as the "Sublease
Premises"). The parties stipulate that for all purposes of this Sublease, the
Sublease Premises shall be deemed to consist of 4,232 rentable square feet.
2. Term. The term of this Sublease shall commence on the date on which Sublessor
delivers possession of the Sublease Premises to Sublessee (the "Sublease
Commencement Date") and expire at midnight on February 28, 2003, or such earlier
termination of this Sublease or Master Lease (the "Sublease Termination Date").
Sublandlord anticipates that the Sublease Commencement Date will be on September
1, 2000; provided, however, Sublessee acknowledges that Sublessor's ability to
vacate the Sublease Premises and deliver possession thereof is dependent upon
Sublessor's completion of tenant improvements at 0000 Xxxxxx Xxxxx xx Xxx
Xxxxxxx, Xxxxxxxxxx and that Sublessor shall not be liable to Sublessee for any
claims or damages arising out of Sublessor's failure to deliver to Sublessee
possession of the Sublease Premises on or prior to September 1, 2000, provided
that if the Sublease Premises are not
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delivered on or prior to September 30, 2000, Sublessee shall have the right to
terminate this Sublease upon ten (10) days notice; provided, however, if
Sublessor delivers the Sublease Premises at any time prior to the effective date
of a termination notice from Sublessee, Sublessee's termination notice shall be
rendered void and Sublessee's right to terminate this Sublease pursuant to this
provision shall be deemed to have expired. Sublessee shall not have the right to
renew or extend the term of this Sublease beyond the Sublease Termination Date.
Notwithstanding the foregoing, this Sublease shall not be effective nor shall
possession be deemed to be delivered unless and until the Master Landlord has
approved and consented to this Sublease as provided in Section 20 of this
Sublease.
3. Condition of Premises. As of the Sublease Commencement Date, the Sublessor
shall deliver to the Sublessee the Sublease Premises in "AS IS" condition, broom
swept and clean, with carpets shampooed. Sublessor shall have no obligation to
make any tenant improvements, alterations, or repairs. Sublessor makes no
representations or warranties of any kind as to the condition of the Sublease
Premises.
4. Use. The Sublessee shall use and occupy the Sublease Premises solely for
general office purposes in accordance with the terms of the Master Lease, and
for no other purpose.
5. Rent. The rent reserved under this Sublease for the term hereby created shall
consist of (a) an annual rent (hereinafter referred to as "Base Rent") in an
amount as set forth below in Section 6 hereof; and (b) such additional sums of
money as may be payable by the Sublessee from time to time pursuant to the
provisions of this Sublease (hereinafter referred to as "Additional Rent"). The
Sublessee covenants and agrees to pay the Base Rent and Additional Rent
(hereinafter sometimes collectively referred to as "Rent") to the Sublessor at
its notice address as set forth in Section 16 below, or at such other address as
the Sublessor may hereafter designate in writing, in lawful money of the United
States, without notice, demand, set off or deduction whatsoever, at the times
and in the manner hereinafter specified. Sublessee shall pay a late charge of
ten percent (10%) of the amount of any installment of Rent not paid within three
(3) business days of the due date. In addition to the foregoing late charge, all
past due payments of Rent shall bear interest beginning on the due date until
paid, at the rate ("Interest Rate") of eighteen percent (18%) per annum;
provided, however, that the interest sought to be imposed shall not exceed the
maximum rate permitted under Federal law or under the laws of the State of
California.
6. Base Rent. The Base Rent payable by Sublessee during the Sublease Term shall
be as follows:
$33.60 per square foot $142,195.20/Year $11,849.60/Month
Base Rent shall be payable in equal monthly installments on the first day of
each and every calendar month during the term of this Sublease, except that
provided Sublessee is not then in default of this Sublease and such default has
not been cured or waived, Sublessee may apply a portion of the Security Deposit
(as defined below) toward payment of Base Rent for the months of January 2001,
January 2002, and January 2003, by providing notice to Sublandlord no less than
ten (10) days nor more than thirty (30) days in advance of each month in which
it desires to apply such portion of the Security Deposit toward Base Rent.
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7. Additional Rent. Sublesseee shall assume and pay monthly as Additional Rent
during the term of this Sublease all charges of "Additional Rent" accruing to
Sublessor's lease of the Sublease Premises which are due following the
Commencement Date of this Sublease from the Sublessor as "Tenant" pursuant to
the Master Lease, provided, however, for the purpose of this Sublease, any
Additional Rent which is determined in the Master Lease using a "Base Year"
calculation, the Base Year shall be deemed to be 2000. Furthermore, Sublessee
shall assume and pay as Additional Rent during the term of this Sublease any
other amount which Sublessor becomes obligated to pay the Master Landlord under
the Master Lease as a result of Sublessee's occupancy of the Sublease Premises,
which amounts shall be due and payable to Sublessor by Sublessee within five (5)
days of Sublessee's receipt of a statement from Sublessor of amounts due.
8. Security Deposit. Sublessee shall deposit with Sublessor an amount equal to
Seventy-one Thousand Ninety-seven and 60/100 Dollars ($71,097.60) (the "Security
Deposit") to secure the performance of the Sublease by Sublessee. One-half of
the Security Deposit is due and payable upon execution and delivery hereof by
Sublessee. The remaining portion of the Security Deposit shall be due and
payable upon the Sublease Commencement Date. Upon the occurrence of a default by
Sublessee, Sublessor, without prejudice to any other remedy, may apply any
portion of the Security Deposit to cure such default, and Sublessee shall pay to
Sublessor, on demand, the amount so applied to cure such default in order to
restore the Security Deposit to its original amount. The Security Deposit need
not be held by Sublessor in a separate account and may be commingled with
Sublessor's other funds. Sublessee shall not be entitled to any interest on the
Security Deposit.
9. Obligations Under the Master Lease. This Sublease and the Sublessee's rights
under this Sublease shall at all times be subject to and is made upon all of the
terms, covenants, rights and conditions of the Master Lease, with the same force
and effect as if fully set forth herein at length, and except as otherwise
provided for herein, the Sublessee shall keep, observe and perform or cause to
be kept, observed and performed, faithfully all of the applicable terms,
covenants, and conditions of the Sublessor under the Master Lease. Sublessee
shall not do anything which is considered a default under the Master Lease or
which would place Sublessor in default thereunder and Sublessee agrees to
indemnify and hold Sublessor harmless from and against all claims, demands, or
liabilities (including reasonable attorneys fees and liquidated damages
Sublessor may have to pay Master Landlord under the Master Lease) resulting from
Sublessee's unexcused breach or violation or non-performance under the Master
Lease as incorporated herein. Sublessee shall look to Master Landlord, and not
to Sublessor, for any tenant services under the Master Lease and Sublessor shall
have no liability whatsoever to Sublessee if the Master Landlord fails to
perform any services or obligations required to be performed by the Master
Landlord under the Master Lease. The terms, conditions and respective
obligations of Sublessor and Sublessee to each other under this Sublease shall
be the terms and conditions of the Master Lease, except for those provisions of
the Master Lease which are directly contradicted by this Sublease, in which
event the terms of this Sublease shall control. Therefore, for purposes of this
Sublease, except as otherwise provided to the contrary herein, wherever in the
Master Lease the word "Landlord" is used it shall be deemed to mean the
Sublessor herein and wherever in the Master Lease the word "Tenant" is used, it
shall mean the Sublessee herein.
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10. Insurance.
a. The Sublessee shall obtain and at all times during the
Sublease Term keep in force such insurance coverage, in type, form, amount, and
by such insurer, as is required under Article 10 of the Master Lease.
b. The Sublessee shall deliver to the Sublessor certificates of
such insurance prior to the Sublease Commencement Date, and thereafter
certificates of renewal thereof not less than thirty (30) business days prior to
the expiration of any such policy. In the event that the Sublessee shall fail
promptly to furnish any insurance herein required, the Sublessor may effect the
same and pay the premium thereof for a period not exceeding one (1) year, and
the premium so paid by the Sublessor shall be immediately payable by the
Sublessee as Additional Rent.
c. All policies of insurance as aforesaid shall name the
Sublessor, the Master Landlord, and such other entity as Master Landlord may
require under the Master Lease, as additional insureds, as their interests may
appear.
11. Default. If the Sublessee shall default with respect to this Sublease and
the Sublease Premises beyond any applicable cure period, the Sublessor shall
have all of the rights and remedies afforded to the Master Landlord under the
Master Lease.
12. Subordination. This Sublease is subject and subordinate to the Master Lease,
to all ground and underlying leases, and to all mortgages and deeds of trust
which may now or hereafter affect such leases, the leasehold estate or estates
thereby created or the real property of which the Sublease Premises form a part,
and to any and all renewals, modifications, consolidations, replacements and
extensions thereof, provided that the Sublessor agrees not to effect any
modification or amendment of the Master Lease which might adversely and
materially affect the rights of the Sublessee hereunder without the reasonable
written consent of the Sublessee in each case.
13. Assignments and Further Subleases. Provided that Sublessee has obtained the
consent of Master Landlord when required under the terms of the Master Lease,
has otherwise complied with all requirements of the Master Lease with respect to
any assignment or subletting, and has provided written notice to Sublessor of
any actual, intended or proposed Sublease or assignment. Sublessee may assign
this Sublease or further sublease the Sublease Premises without the prior
written consent of Sublessor.
14. Surrender. Upon the Sublease Termination Date, the Sublessee shall quit and
surrender to the Sublessor the Sublease Premises, broom clean and in as good
order and condition as they were on the Sublease Commencement Date, ordinary
wear excepted, and the Sublessee shall remove from the Sublease Premises all of
its personal property which is not attached to the Sublease Premises. If
Sublessee fails to so vacate, then Sublessee shall be deemed a tenant at
sufferance and shall pay to Sublessor holdover rent at the rate of One Hundred
Fifty Percent (150%) of the Rent hereunder ("Holdover Rent"); however, payment
of such Holdover Rent shall not prevent Sublessor from seeking any and all
remedies as provided herein, at law and in equity due to Sublessee's failure to
surrender the Sublease Premises. Sublessee's obligation to
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perform and observe this covenant shall survive the expiration or other
termination of this Sublease.
15. Indemnification. Except as results from the gross negligence or willful
misconduct of Sublessor or Master Landlord, Sublessee hereby agrees to indemnify
and hold the Sublessor and the Master Landlord harmless from and against any
cost, damage, claim, liability or expense (including reasonable attorney's fees)
incurred by or claimed against the Sublessor and/or the Master Landlord,
directly or indirectly, as a result the Sublessee's use of or occupancy of the
Sublease Premises and/or Sublessee's negligence or willful misconduct.
16. Notices. Any notice, demand or other communication which must or may be
given or made by either party hereto shall be in writing and shall be given or
made by hand delivery, by receipted, overnight courier, or by mailing the same
by registered or certified mail, postage prepaid: (i) In the case of Sublessee,
to the Premises, with copies to Venture Catalyst Incorporated 00000 Xxx Xxx
Xxxxx Xxxxx, Xxxxx #000, Xxx Xxxxx, XX 00000 Attention: General Counsel; and
(ii) In the case of Sublessor, to 0000 Xxxxxx Xxxxx, Xxx Xxxxxxx, Xxxxxxxxxx
00000, Attention: Xxxx Xxxxxxx, with copies to iXL, Inc. 0000 Xxxxx Xxxxxx, XX,
Xxxxxxx, XX 00000 Attention: Xx. Xxxx X. Xxxxxxxx. Payment of Rent pursuant
hereto shall be made to Sublessor's Atlanta notice address above.
Either party may, by notice to the other given as aforesaid, designate a new or
additional address to which any such notice, demand or other communication
thereafter shall be given, made or mailed.
17. Brokers. Sublessor and Sublessee warrant and represent to each other that
other than The Staubach Company (Sublessor's representative) and Xxx &
Associates (Sublessee's representative) no broker brought about this transaction
or dealt with either party in connection herewith, and each party agrees to
indemnify the other from and against any other outside broker claims. Sublessor
shall be responsible for the payment of all brokerage commissions to Sublessor's
representative and Sublessee's representative pursuant to separate agreements.
18. Parking. Sublessee shall be entitled to use twelve (12) self-serve,
unreserved parking space in the on-site garage at the Master Landlord's
prevailing market rates for use of such spaces.
19. Repairs and Maintenance. Any repair and maintenance obligation with respect
to the Sublease Premises which are the responsibility of Sublessor, as Tenant
under the Master Lease, shall be performed by Sublessee at Sublessee's sole cost
and expense. Sublessee agrees that it will notify Sublessor promptly of the need
for any repair to the Sublease Premises, even if Sublessor is not responsible
for such repair.
20. Contingency. Sublessee acknowledges that the terms of the Master Lease
provide Master Landlord with the right to recapture the Sublease Premises or
reasonably withhold its consent to this Sublease within thirty (30) days of
notice of such proposed subletting. Accordingly, the terms, conditions,
privileges and obligations set forth herein are expressly contingent on Master
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Landlord's consent to this Sublease and if Master Landlord withholds its consent
this Sublease shall terminate and neither party shall have any further
obligations to the other.
21. General Provisions.
a. Benefit and Burden. The covenants, conditions, agreements,
terms and provisions herein contained shall be binding upon, and shall inure to
the benefit of, the parties hereto and each of their respective personal
representatives, successors, heirs, executors, administrators and assigns.
b. Governing Law. It is the intention of the parties hereto that
this Sublease shall be construed and enforced in accordance with the laws of the
State of California, without regard to its conflict of law rules.
c. Entire Agreement. This Sublease contains the final and entire
agreement between the parties hereto regarding the subject hereof, and they
shall not be bound by any terms, statements, conditions or representations, oral
or written, express or implied, not herein contained.
d. Conflicts Between this Sublease and the Master Lease. With
respect to the relationship between the Sublessor and the Sublessee, the terms
and conditions of this Sublease shall take precedence with respect to any
conflict between the terms and conditions contained herein and the terms and
conditions of the Master Lease. Nothing herein shall be construed in any way to
affect the rights and obligations of the Sublessor and the Master Landlord under
the Master Lease.
e. Captions. The captions throughout this Sublease are for
convenience or reference only and the words contained therein shall in no way be
held or deemed to define, limit, describe, explain, modify, amplify or add to
the interpretation, construction or meaning of any provision of or the scope or
intent of this Sublease, nor in any way affect this Sublease.
f. Singular and Plural. Wherever appropriate herein, the singular
includes the plural and the plural includes the singular.
g. Counterpart. This Sublease may be executed in several
counterparts, but all counterparts shall constitute but one and the same
instrument.
IN WITNESS WHEREOF, the Sublessor and the Sublessee have each executed
this Sublease on the day and year first hereinabove written.
SUBLESSOR:
IXL, INC.
By: /s/ Xxxx Xxxxxx
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Its: SVP
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Date: 8/17/2000
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SUBLESSEE:
VENTURE CATALYST INCORPORATED
By: /s/ Xxxxx XxXxxxxx
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Its: CFO
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Date: 8/11/00
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