1
EXHIBIT 10.18
SUBLEASE AGREEMENT
------------------
THIS SUBLEASE AGREEMENT is made and entered into on the 8th day of
December, 1998, by and between International Poison Center Consortium, Inc. (a
wholly owned subsidiary of Product Safety, Resources, Inc.), a Minnesota
corporation ("Sublessor") and FirePond. Inc., a Minnesota corporation
("Sublessee").
RECITALS
A. By Standard Office Lease dated February 13, 1997 (attached as
Exhibit A and referred to herein as the "Office Lease"), Appletree Ltd. leased
to Institutional Pharmacy Support Services, Inc. ("IPSS"), certain premises
consisting of approximately 2,467 square feet of office space comprising Suite
1050 of the building commonly known as Riverview Office Tower, 0000 00xx Xxxxxx
Xxxxx, Xxxxxxxxxxx, Xxxxxxxxx as more further described in the Office Lease (the
"Premises").
B. The Landlord's interest in the Office Lease was subsequently
assigned to Glenborough Properties, L.P., then to Glenborough Fund V, L.P.
("Owner").
C. By Assignment and Assumption Agreement dated July 16, 1998, IPSS
assigned the Tenant's interest in the Office Lease to International Poison
Center Consortium, Inc. (a wholly owned subsidiary of Product Safety Resources,
Inc.).
D. Sublessee desires to sublease the Premises from Sublessor and
Sublessor desires to sublease the Premises to Sublessee.
THEREFORE, in consideration of the mutual promises of the parties set
forth in this Sublease Agreement and other valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the Sublessor and Sublessee
agree as follows:
ARTICLE 1. PREMISES
Sublessor hereby leases to Sublessee and Sublessee hereby takes from
Sublessor the Premises, subject to and together with the benefit of the terms,
covenants, conditions and provisions of this Sublease Agreement.
ARTICLE 2. TERM
The term of this Sublease Agreement (the "Term") shall commence on
December 1, 1998 (the "Commencement Date") and shall terminate on March 31, 2002
unless sooner terminated as
2
provided herein. Sublessor shall deliver possession of the Premises to Sublessee
on the date of full execution of this Sublease Agreement. During such time, all
terms and provisions of this Sublease Agreement shall be applicable, except that
Base Rent and Additional Rent shall commence as of the Commencement Date.
ARTICLE 3. USE
The Premises shall be used and occupied only for general office use, to
include the development, sales and support of enterprise sales / marketing
software. Sublessee shall use the Premises only for those purposes permitted in
the Office Lease.
ARTICLE 4. RENT
A. Sublessee agrees to pay Sublessor during the Term the Base Rent as
follows:
PERIOD RENTAL PER SQUARE FOOT MONTHLY BASE RENT
12/1/98 to 3/31/99 $10.50 $2,158.63
4/1/99 to 3/31/00 $11.00 $2,261.42
4/1/00 to 3/31/01 $11.50 $2,364.21
4/1/01 to 3/31/02 $12.00 $2,467.00
B. In addition to the Rent payable pursuant to the Rent Schedule,
Sublessee shall pay to Sublessor together with the monthly installments of Rent
payable by Sublessee hereunder, such additional amounts as Sublessor, in its
capacity as tenant, is obligated to pay under the Office Lease, including, but
not limited to, Sublessor's proportionate share of taxes, insurance, maintenance
charges and other operating expenses ("Additional Rent").
C. All Rent and Additional Rent payable under this Sublease by
Sublessee shall be paid, without notice or prior demand therefor and without any
deduction or set-off whatsoever, to Sublessor at the address set out in Article
15 hereof or at such place as Sublessor may designate from time to time by
written notice to Sublessee given in the manner set out in Article 15 hereof.
All Rent and Additional Rent shall be payable on the first day of each month
during the Term.
ARTICLE 5. OFFICE LEASE
A. Except as inconsistent with the provisions of this Sublease
Agreement, the terms, provisions, covenants and conditions of the Office Lease
are incorporated herein by reference in like manner as though the same were
specifically set forth herein. Except as may be otherwise specifically provided
herein, the Sublessee shall have all rights and privileges and assumes and
agrees to keep and perform all of the obligations, conditions and covenants of
the tenant set forth under the Office Lease as though Sublessee were substituted
as tenant thereunder. It is agreed
-2-
3
and understood between the parties hereto that the Sublessee obtains and is
granted no more rights and privileges under this Sublease Agreement than
Sublessor as tenant under the Office Lease.
B. The obligations, conditions and covenants of the Owner as the
Landlord under the Office Lease shall remain the Owner's, and Sublessor shall
not be required to perform the same in the event of a default by the Owner.
Notwithstanding the foregoing, the Sublessor shall have all the rights and
privileges of the Owner as Landlord under the Office Lease, except as herein
otherwise specifically provided.
C. Sublessor and Sublessee each agree not to do or suffer or permit
anything to be done which would result in default under the Office Lease or
cause the Office Lease to be terminated or forfeited.
ARTICLE 6. CONDITION OF THE DEMISED PREMISES
Sublessee shall take possession of the Premises in "as-is" condition.
Sublessor represents that to Sublessor's knowledge, the Premises do not contain
asbestos or other hazardous substances, as defined under applicable federal,
state and local statutes, and that the Premises conform to the requirements of
the Americans with Disabilities Act. Sublessor's knowledge is hereby defined as
the actual knowledge of Xxxxxxx Xxxxxxx as of the date hereof.
ARTICLE 7. PAYMENT OF FEES
Sublessee will pay and discharge all costs, attorneys' fees and
expenses that may be incurred by Sublessor in enforcing the covenants and
agreements of this Sublease Agreement or as may otherwise be required in the
Office Lease.
ARTICLE 8. INSURANCE
Sublessee shall maintain and have Sublessor named as an additional
insured on all insurance required to be maintained by Sublessor, as Tenant under
the Office Lease. The insurance policies maintained by Sublessee shall provide
that the same may not be cancelled, terminated or altered without thirty (30)
days prior written notice sent by registered mail to the Sublessor and Owner.
The insurance maintained by the Sublessee shall contain an endorsement
containing an express waiver of subrogation in favor of Sublessor and Owner and
any additional premium or cost to provide such endorsement shall be paid by
Sublessee.
-3-
4
ARTICLE 9. INDEMNIFICATION
Sublessee agrees that it will indemnify and hold Sublessor and Owner
forever harmless as provided in paragraph 8.E. of the Office Lease, which
indemnification and agreement to hold harmless shall also include any and all
responsibility or liability which Sublessor may incur by virtue of this Sublease
Agreement arising out of any failure of Sublessee in any respect to comply with
and perform the requirements and provisions of the Office Lease or this Sublease
Agreement.
ARTICLE 10. ASSIGNMENT
Sublessee shall not transfer, sell, assign or pledge this Sublease or
further sublease the Premises, or any part thereof without compliance with the
requirements of the Office Lease relating thereto and obtaining the prior
written consent of the Sublessor and Owner, which approval shall not be
unreasonably withheld or delayed.
ARTICLE 11. ALTERATIONS AND IMPROVEMENTS
Sublessee shall not make any alterations and improvements to the
Premises without complying with the terms of the Office Lease relating thereto
and obtaining the prior written consent of Sublessor and Owner.
ARTICLE 12. SURRENDER OF THE PREMISES
Upon the expiration of the Term of this Sublease Agreement, or any
sooner termination hereof, Sublessee shall remove its equipment and trade
fixtures promptly (repairing any damage caused thereby) and quit and surrender
the Premises.
ARTICLE 13. DEFAULT/REMEDIES
A. If any one or more of the following events occurs, then Sublessee
shall be deemed to be in default under this Sublease Agreement:
1. Sublessee fails to pay, when due, the Base Rent, or
Additional Rent as provided under this Sublease Agreement;
2. Sublessee fails to keep, observe or perform any of the
other terms, covenants and conditions herein to be kept,
observed and performed by Sublessee under this Sublease
Agreement for more than twenty (20) days after written notice
is given to Sublessee specifying the nature of such default.
Notwithstanding the foregoing, if the applicable grace period
set forth in the Office Lease shall be
-4-
5
shorter than that provided herein, the grace period set forth
in the Office Lease shall supersede the grace period set forth
in this subparagraph.
B. If a default occurs, then Sublessor shall be entitled to exercise
any and all of the rights and remedies provided to the Owner as Landlord under
the Office Lease. Any remedies under this Sublease Agreement shall not be deemed
exclusive, but shall be cumulative and shall be in addition to all other
remedies available to Sublessor existing at law or in equity.
ARTICLE 14. CONSENTS
A. Wherever the Owner's consent as Landlord is required by the
provisions of the Office Lease, the Sublessee must, in addition to securing such
consent, also obtain the prior written consent of the Sublessor, which consent
of the Sublessor shall not be unreasonably withheld or delayed.
B. In no event shall Sublessee be entitled to any damages for any
withholding or delay in giving its consent and the Sublessee understands and
agrees that its sole remedies shall be limited to an action for summary
judgment, an injunction or declaratory judgment.
ARTICLE 15. NOTICES
A. Sublessor shall immediately forward to the Sublessee all xxxxxxxx,
reports, written statements or notices received by Sublessor from Owner as
Landlord under the Office Lease. Sublessee shall forward to Sublessor all
reports and written statements required of the Tenant under the Office Lease at
least ten (10) days prior to the date such reports or written statements are due
under the Office Lease.
B. Any notice, demand, request or other communication which may be or
is required to be given by the Sublessee to the Owner as Landlord under the
Office Lease shall be effective only if a copy of the notice to the Landlord is
either delivered personally or sent to the Sublessor as provided under
subparagraph C below.
C. Any notice which one party wishes or is required to give to the
other party will be regarded as effective if in writing and either delivered
personally to such party or an authorized representative of the party or sent
certified or registered mail, return receipt requested postage pre-paid to the
addresses below, or such other addresses as either party may, from time to time,
designate by written notice to the other party:
SUBLESSOR: Product Safety Resources, Inc. Sublessee: FirePond, Inc.
Attn: Xxxxx Xxxxxxx Attn: Xxxxx Xxxxxx, President
0000 Xxxxxxx Xxxx., Xxxxx 000 00 Xxxxxxxxxx Xxxx Xx., Xxxxx 000
Xx. Xxxx, XX 00000 Xxxxxxxxxx XX, 00000
-5-
6
ARTICLE 16. RELATIONSHIP OF THE PARTIES
Nothing contained in this Sublease shall be deemed or construed by the
parties hereto or by a third party to create the relationship of principal and
agent or of partnership or joint venture or of any association whatsoever
between Sublessor and Sublessee. It is hereby expressly understood and agreed
that neither the method of computation of rent or any other provisions contained
in this Sublease Agreement, nor any act or acts of the parties hereto shall be
deemed to create any relationship between Sublessor and Sublessee other than the
relationship of Sublessor and Sublessee.
ARTICLE 17. INVALIDITY
If any part of this Sublease Agreement or any part of any provision
hereof shall be adjudicated to be void or invalid, then the remaining provisions
hereof not specifically so adjudicated to be invalid, shall be executed without
reference to the part or portion so adjudicated, insofar as such remaining
provisions are capable of execution.
ARTICLE 18. IMPORTANCE OF EACH COVENANT
Each covenant and agreement on the part of one party is understood and
agreed to constitute an essential part of the consideration for each covenant
and agreement on the part of the other party.
ARTICLE 19. CONDITIONS
This Sublease Agreement is dependent and conditioned upon the Owner
executing its consent to this Sublease Agreement. In the event such condition is
not satisfied or named by December 1, 1998, then this Sublease Agreement shall
be null and void and neither party hereto shall have any liability or
responsibility to the other, except for such liability as shall have accrued
prior to such termination.
ARTICLE 20. SUCCESSORS AND ASSIGNS
This Sublease Agreement and all covenants and agreements contained
herein shall be binding upon, apply and inure to the benefit of the respective
successors and assigns of the
-6-
7
parties to this Agreement, subject to the restrictions imposed under this
Sublease Agreement and the Office Lease relating to assignment by the Sublessee.
ARTICLE 21. NON-WAIVER
Sublessor's or Sublessee's failure to insist upon strict performance of
any covenant of this Sublease Agreement or to exercise any option or right
herein contained shall not be a waiver or relinquishment for the failure of such
covenant, right or option, but the same shall remain in full force and effect.
Sublessor is specifically authorized to accept a partial payment (no matter how
such payment may be labeled or conditionally delivered) without such acceptance
being deemed a waiver of the balance of the amount owed.
ARTICLE 22. APPLICABLE LAW
This Sublease Agreement shall be construed under the laws of the State
of Minnesota.
ARTICLE 23. ENTIRE AGREEMENT/AMENDMENTS
This Sublease Agreement and the Exhibits attached hereto (including the
Office Lease) set forth all of the covenants, promises, agreements, conditions
and understanding between Sublessor and Sublessee concerning the Premises and
there are no other covenants, promises, agreements, conditions or
understandings, either oral or written, between them other than those which are
set forth in this Sublease Agreement. Except as otherwise provided herein, no
subsequent alteration, amendment, change or addition to this Sublease Agreement
shall be binding upon the Sublessor or the Sublessee unless reduced to writing
and signed by both parties.
ARTICLE 24. COUNTERPARTS
This Sublease Agreement and the Acknowledgment and Consent attached
hereto may be separately executed as counterparts which shall be then read
together and enforced.
ARTICLE 25.
Sublessee covenants and agrees that Sublessor shall have no
responsibility or liability in any way whatsoever to Sublessee for a breach by
the Landlord under the Prime Lease of its obligations as landlord under the
Prime Lease. If the Landlord under the Prime Lease is in default under the Prime
Lease and as a result of such default Sublessor is entitled to a rent abatement
or reduction, then in such event, said rent abatement or reduction shall be
passed through to Sublessee and Sublessee shall be entitled to a similar rent
abatement or reduction under this Sublease.
-7-
8
ARTICLE 26.
Sublessor represents and warrants that the Prime Lease is in full force
and effect and in good standing. Sublessor covenants to pay all rent and
additional rent when due under the Prime Lease and to keep the Prime Lease in
good standing during the term of this Sublease provided Sublessee is not in
default hereunder.
IN WITNESS WHEREOF, the parties hereto have executed this Sublease
Agreement the day and year first above-written.
SUBLESSOR: PRODUCT SAFETY RESOURCES, INC.
By: /s/ Xxxxx Xxxxxxx
----------------------------------
Its: President and CEO
----------------------------------
12/8/98
SUBLESSEE: FIREPOND, INC.
By: /s/ Xxxxx Xxxxxx
----------------------------------
Its: President and CEO
----------------------------------
-8-
