Exhibit 10.1
SUBLEASE
AGREEMENT
THIS SUBLEASE AGREEMENT (the “
Sublease ”), dated January 13, 2009 (the
“ Sublease Reference Date ”) is made by
and between Banks.com, Inc., a Florida corporation formerly named
InterSearch Group, Inc. (“ Sublandlord ”)
and MuseGlobal, Inc., a Delaware corporation (“
Subtenant ”). Sublandlord and Subtenant are
collectively referred to herein as the “
Parties .”
RECITALS:
A. Sublandlord (as “
Tenant ”) currently leases that certain
premises consisting of Suite 550 of 222 Kearny Street, San
Francisco, California (the “ Building ”)
pursuant to that certain lease, dated as of September 21,
2005, by and between Walton Kearny/Sutter Investors V, L.L.C., a
Delaware limited liability company (as successor in interest to HCV
Pacific Investors V, a California Limited Partnership) (“
Landlord ”), and Sublandlord, as amended by
(1) that certain Letter Agreement (acknowledging the
substantial completion of improvements and the commencement date),
dated November 15, 2005, (2) that certain First Lease
Amendment, dated as of February 23, 2006, (3) that
certain Letter Agreement (regarding tenant improvement pricing),
dated February 23, 2006, (4) that certain Second Lease
Amendment, dated as of June 15, 2006, and (5) that
certain Letter Agreement (regarding amortization calculation of
certain tenant improvements), dated May 11, 2006 (as so
amended, the “ Master Lease
”).
B. Suite 550, which
is located on the 5 th floor of the Building, consists
of approximately 7,615 rentable square feet. Sublandlord now wishes
to sublease to Subtenant a portion of Suite 550, consisting of
approximately 4,911 rentable square feet, and the non-exclusive use
of the “shared space” included therein (the “
Premises ”). A map of the floor plan of the
Premises, including the “shared space,” is attached
hereto as Exhibit A . A copy of the Master Lease is
attached hereto as Exhibit B .
C. Sublandlord and Subtenant now
desire to enter into a sublease (the “ Sublease
”) for the Premises. Capitalized terms used but not defined
herein shall have the meaning given them in the Master
Lease.
AGREEMENT:
1. Premises.
For the term, at the rental, and
upon all of the conditions set forth herein, Sublandlord hereby
subleases to Subtenant, and Subtenant hereby subleases from
Sublandlord, the entire Premises.
2. Term.
(a) Commencement Date . The
term of this Sublease (the “ Term ”)
shall commence on February 1, 2009 (the “
Commencement Date ”).
(b) Expiration Date . The
term of this Sublease shall end on the earlier of (i) April
15, 2011, unless sooner terminated pursuant to any provision
hereof, or (ii) the termination or expiration of the Master
Lease (the “ Expiration Date
”).
(c) Interim Period .
Notwithstanding anything to the contrary herein, Subtenant shall
have the right to access the Premises at any time between
January 23, 2009, and the Commencement Date for the sole
purpose of installing and constructing its furniture,
fixtures, and equipment; provided, that
(i) both Parties shall have executed this Sublease,
(ii) any sums due at Sublease execution, including the
Security Deposit, shall have been duly deposited, and
(iii) Landlord shall have given its written consent to the
Sublease,. The period between January 23, 2009, and the
Commencement Date shall be referred to as the “ Interim
Period .” Subtenant shall have no obligation to pay
Base Rent or Operating Expenses during the Interim Period;
provided, however, that all other terms and provisions of
the Sublease shall apply during the Interim Period, including but
not limited to the obligation to maintain insurance.
(d) Landlord Approval .
Anything to the contrary herein notwithstanding, this Sublease
shall not go into effect, the Term shall not commence, and
Subtenant shall have no obligations hereunder, unless and until
Landlord has given its written approval hereto.
3. Rent.
(a) Rent Defined . All
monetary obligations of Subtenant to Sublandlord under the terms of
this Sublease (excluding the Security Deposit and any consideration
under the Services Agreement, as defined below) are deemed to be
rent (“ Rent ”). Rent shall be payable in
lawful money of the United States to Sublandlord at the Premises,
Attention: CFO, or to such other persons or at such other places as
Sublandlord may designate in writing.
(b) Base Rent .
(i) Amount; Payment .
Subtenant shall pay to Sublandlord, as Base Rent for the Premises
during the term of this Sublease, the sum of Eight Thousand Five
Hundred Dollars ($8,500.00) per month; provided, however,
that no Rent shall be charged to or paid by Subtenant for the
months of February or March, 2009. Each installment of Base Rent
shall be payable on or before the first day of the month during the
period beginning on the Commencement Date without demand, setoff or
deduction. Base Rent for any partial month occurring during the
term hereof shall be prorated on the basis of a thirty
(30) day month.
(ii) Prepaid Base Rent . Upon
the execution hereof, Subtenant shall pay Sublandlord Eight
Thousand Five Hundred Dollars ($8,500.00) as prepaid Base Rent,
which amount will be applied to the rental due for the month of
April, 2009.
(c) Additional Rent . In
addition to Base Rent, Subtenant shall, as set forth below, pay to
Sublandlord “Subtenant’s Proportionate Share” (as
defined below) of Sublandlord’s liability to Landlord for
those operating expenses described in Section 4(a) of the
Master Lease.
(i) Subtenant’s
Proportionate Share . As used herein, the term “
Subtenant’s Proportionate Share ” (sometimes
referred to herein as the “ SPS ”) shall
mean a fraction equal to the ratio between the number of square
feet of the Premises divided by the number of square feet of the
overall area of Suite 550. For purposes of clarity, the parties
agree that as of the Commencement Date the Subtenant’s
Proportionate Share shall be 64.5%.
(ii) Operating Expenses .
Subject to clause (iii), below, Subtenant shall, for periods
following the Base Year (as defined below), pay to Sublandlord
Subtenant’s Proportionate Share of Sublandlord’s
proportionate share of increases in Operating Expenses (pursuant to
Section 4(a)(1) of the Master Lease), and of increases in
Property Taxes (pursuant to Section 4(a)(2) of the Master
Lease), that may occur during the term of this Sublease;
provided, that such Operating Expenses and Property taxes
are actually billed by Landlord to Sublandlord and have accrued
under the Master Lease during the term thereof and of this
Sublease. For purposes of clarity, the Parties agree that, from and
after the Commencement Date:
(A) Applying the SPS to
Sublandlord’s obligations for increases in the Operating
Expenses under the Master Lease results in a potential cost to
Subtenant of 3.88% of such increases (the “
Subtenant’s Expense Proportionate Share
”);
(B) Applying the SPS to
Sublandlord’s obligations for increases in the Property Taxes
under the Master Lease results in a potential cost to Subtenant of
3.40% of such increases (the “ Subtenant’s Real
Estate Tax Proportionate Share ”); and
(C) Subtenant shall pay, as
Additional Rent, all excess charges expressly charged by Landlord
to Sublandlord (over and above Subtenant’s Expense
Proportionate Share) for extraordinary or excess supply or
consumption of heating, ventilation, air conditioning, electricity,
janitorial or other utilities or services to the Premises,
provided that such utilities or services were used solely
for Subtenant’s benefit.
(iii) Base Year; Abatement .
The base year for the calculation of Subtenant’s obligations
under this paragraph (c) is the 2009 calendar year (the
“ Base Year ”). Subtenant shall have no
obligation to pay either Subtenant’s Expense Proportionate
Share or Subtenant’s Real Estate Tax Proportionate Share
during the first twelve (12) months of the Term.
(iv) Sublandlord shall submit all
billings of the aforesaid Operating Expenses (each an “
Expense Billing ”) to Subtenant for payment
within five (5) business days following Sublandlord’s
receipt thereof from the Landlord. If the Expense Billing includes
Operating Expense increases for more than one calendar year,
Sublandlord shall use commercially reasonable efforts to separately
set forth those Operating Expenses attributable to periods prior to
the Base Year.
(v) Shared Services and
Utilities . Notwithstanding anything to the contrary contained
herein, in the event any Premises services or utilities are used in
excess of those levels set forth in Section 7 (b) of the
Master Lease and Landlord bills Sublandlord for those increases and
any additional expenses set forth in Section 7 of the Master
Lease, Sublandlord shall present the invoice to Subtenant for the
excess amount and Subtenant shall pay the excess amount along with
the Expense Billing set forth in this Section 3.
(d) Late Charge . Failure to
pay Rent due hereunder more than five (5) days after the date
it is due shall result in a late charge to Tenant of an amount
equal to five percent (5%) of each monthly Rent not paid when
due, in addition to interest thereon at the rate of ten percent
(10%) per annum.
4. Security Deposit. Subtenant shall deposit
with Sublandlord, upon execution of this Sublease by Subtenant, the
sum of Twenty One Thousand Two Hundred-Fifty Dollars ($21,250.00)
as security for the faithful performance of Subtenant’s
obligations hereunder (the “ Security Deposit
”). If Subtenant fails to pay Rent or other charges due
hereunder after any applicable cure period, or otherwise defaults
with respect to any provision of this Sublease, Sublandlord may
use, apply or retain all or any portion of the Security Deposit for
the payment of: (a) any Rent or other charge in default,
(b) any other sum to which Sublandlord may become obligated by
reason of Subtenant’s default, or (c) any loss or damage
that Sublandlord may suffer thereby in default. If Sublandlord
so
uses or applies all or any portion of the
Security Deposit, Subtenant shall, within ten (10) business
days after written demand therefor, forward to Sublandlord an
amount sufficient to restore the Security Deposit to the full
amount provided for herein and Subtenant’s failure to do so
shall be a material breach of this Sublease. Sublandlord shall not
be required to keep the Security Deposit separate from its general
accounts or in a separate interest bearing account and Sublandlord
shall have no obligation to pay Subtenant any interest whatsoever
on the Security Deposit. If Subtenant performs all of
Subtenant’s obligations hereunder, the Security Deposit, or
so much thereof as has not theretofore been properly applied by
Sublandlord, shall be returned at the earlier of: (i) the
Expiration Date, or (ii) the date when Subtenant vacates the
Premises. No trust relationship is created herein between
Subland
