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Exhibit 10.6
SUBLEASE
THIS AGREEMENT OF SUBLEASE made as of the 17th day of Sept., 1996, by and
between Xxxxxxx Mortgage Corporation, (hereinafter referred to as Sublessor)
and OnDisplay, Inc., (hereinafter referred to as Sublessee).
WITNESSETH
WHEREAS, Sublessor is the Lessee of the Premises as hereinafter described
under that certain agreement of Lease dated June 29, 1995, as amended November
29, 1995 by and between Annabel Investment Co. as Landlord (hereinafter
referred to as the "Master Lessor") and Xxxxxxx Mortgage Corporation a Tenant
(which Lease as amended is hereinafter referred to as the "Master Lease") which
Lease concerns 6,728 square feet of space in a Building known as 0000 Xxxxxx
Xxxxx, Xxxxxxxx X, Xxx Xxxxx, Xxxxxxxxxx 00000 ("Premises"); and,
WHEREAS, Sublessee desires to sublease a portion of the Premises from
Sublessor, and Sublessor desires to sublease a portion of the Premises to
Sublessee.
NOW THEREFORE, in consideration of the rents and covenants hereinafter
set forth to be paid and performed by Sublessee, Sublessor does hereby demise,
lease and let unto Sublessee, and the Sublessee does hereby lease and take from
Sublessor upon the terms and conditions hereinafter set forth the following:
6,728 contiguous square feet located on the second (2nd) floor of the
Premises a shown on the sketch attached hereto as Exhibit A hereinafter
described as the "Subleased Premises."
1. RELATIONSHIP TO MASTER LEASE. The Sublease and all its terms,
covenants and provisions are and each of them is subordinate to (i) the Master
Lease (a copy of which is attached hereto as Exhibit B and made a part hereof
by reference) under which Sublessor is granted a leasehold interest in the
Subleased Premises; (ii) the rights as contained in the Master Lease of the
owner or owners of the Premises and/or the land and Building of which the
Subleased Premises are a part; (iii) the rights of Master Lessor as contained
in the Master Lease; and (iv) to any and all mortgages or encumbrances now or
hereafter affecting the Subleased Premises to which the Master Lease would be
subordinated. Sublessee expressly agrees that if Sublessor's tenancy or right
to possession of the Premises (including the Subleased Premises) shall
terminate by expiration of the Master Lease or any other cause not due to the
fault of Sublessor, this Sublease shall thereupon immediately cease and
terminate and Sublessee shall give immediate possession to Sublessor.
2. PERFORMANCE OF MASTER LEASE TERMS. With respect to the Subleased
Premises, Sublessee shall receive all benefits which accrue to Sublessor under
the Master Lease. Sublessee hereby covenants and agrees to assume during the
term of this Sublease the obligation for performance of the responsibilities,
covenants, conditions and stipulations of
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Sublessee (____)
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Sublessor contained in the Master Lease, including payment when due of all
amounts constituting Rent, as defined in the Master Lease, including but not
limited to the payment of Operating Expenses. Sublessee hereby agrees to
indemnify and hold harmless Sublessor from and against any loss, claim, damage,
expense or injury (including reasonable attorneys' fees) which Sublessor may
incur as a result of Sublessee's failure to perform such obligations on behalf
of Sublessor. Sublessor covenants and agrees that if and so long as the
Sublessee pays the base rent and additional rent specified in this Sublease and
fully, faithfully and punctually observes the covenants and conditions hereof,
then (i) Sublessee shall during the term of this Sublease quietly enjoy the
Subleased Premises, subject, however, to the earlier termination of the Master
Lease; and (ii) Sublessor shall not do anything which would cause the Master
Lease to be canceled, terminated or forfeited including but not limited to,
elect to terminate the Master Lease pursuant to Section 26.19 thereof.
3. TERM. The term of this Sublease shall commence on the earlier
of (i) the date Sublessee occupies the Subleased Premises or (ii) September 15,
1996 ("Commencement Date") and shall expire on July 11, 2000.
4. RENT. During the term of this Sublease, Sublessee covenants to
pay monthly base rent ("Base Rent") for the Subleased Premises at the rate of
$1.52 per square foot, payable in monthly payments of ten thousand two hundred
twenty six and 56/100 Dollars ($10,226.56).
Base Rent is due and payable on the first day of each month in
advance to Sublessor at the address specified herein for providing notice. If
the Commencement Date is a date other than the first of the month, Base Rent
shall be prorated.
5. USE. Sublessee shall use the Subleased Premises for general
office purposes.
6. WORK OF IMPROVEMENT. Sublessee has inspected the Subleased
Premises and shall Lease the Subleased Premises in "as-is" condition.
7. INSURANCE AND INDEMNIFICATION. At all times during the term of
this Sublease, Sublessee shall keep in effect (i) a policy of Comprehensive
General Liability insurance with a reputable company in amounts not less than
$1,000,000 combined single limit and $500,000 property damage or in such
greater amounts deemed reasonably appropriate by Sublessor or Master Lessor
with due regard given to Sublessee's use of the Subleased Premises, which
policy shall name Sublessor and Master Lessor as additional insureds; (ii) a
policy of Worker's Compensation insurance in at lease the statutory amounts
covering Sublessee's employees using the Subleased Premises; and (iii)
insurance covering loss to Sublessee's personal property located on the
Subleased Premises by fire or other casualty. All policies of insurance shall
be issued by a company licensed to do business in the State of California and
reasonably approved by Sublessor. Within five (5) days after full execution
hereof, Sublessee shall provide Sublessor and Master Lessor with a certificate
evidencing such insurance coverage. Sublessee shall indemnify and hold harmless
of the Sublessor and Master Lessor except that references to "Tenant" shall
read "Sublessee" and
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Sublessee(___)
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references to "Landlord" shall read "Master Lessor and Sublessor".
8. SURRENDER. At the expiration or earlier termination of this Sublease,
Sublessee shall surrender the Subleased Premises to Sublessor in broom clean
condition in the same condition as on the Commencement Date, except for
ordinary wear and tear, damage by fire, earthquake, act of God, or the
elements, and not caused by the wrongful act or omission of Sublessee or
Sublessee's agents.
9. ASSIGNMENT AND SUBLETTING. Sublessee may not sublet all or any
portion of the Subleased Premise without the prior consent of Sublessor, which
consent subject to the Master Lease, shall not be unreasonably withheld. No
subletting by the Sublessee shall relieve Sublessee of its liability hereunder.
Notwithstanding anything herein to the contrary the Sublessor may, without
requiring Sublessee's consent, but with notice to the Sublessee, assign this
Sublease to any business entity that controls, is controlled by or is under
common control with or which acquires all or substantially all of the voting
stock or assets of Sublessor.
10. DEFAULT. If Sublessee shall default in the payment of Base Rent or
additional rent hereunder and such default shall continue for five (5) days
after written notice from Sublessor, Sublessor may exercise any of the rights
reserved to the Master Lessor pursuant to the Master Lease.
11. ACCESS. Sublessor and Master Lessor shall be permitted access to the
Subleased Premises at all reasonable times upon reasonable advance notice, or
at any time in case of emergency, to inspect the Subleased Premises, subject to
Sublessee's reasonable security requirements.
12. NOTICE. Any notice required or permitted to be sent pursuant to this
Agreement shall be in writing sent certified mail, return receipt requested,
effective upon receipt, postage prepaid to the parties at the following
addresses or to such other addresses as they shall from time to time indicate
by written notice pursuant to this Section:
Sublessee: Sublessor:
OnDisplay, Inc. Xxxxxxx Mortgage Corporation
Attn: Xxxx Xxxxx Attn: Corporate Accounting
0000 Xxxxxx Xxxxx, Xxxxx 000 0000 Xxxxx Xxxxx, #000
Xxx Xxxxx, XX 00000 Xxxxxxxxxxx, XX 00000
13. SUBLESSOR RELEASED FROM LIABILITY IN CERTAIN EVENTS. Except to the
extent caused by the negligent or otherwise wrongful acts or omissions of
Sublessor or Master Lessor, its agents or employees, Sublessor shall not be
responsible, at any time or in any
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Sublessee (______)
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event, for any latent defects, deterioration or change in the condition of the
Subleased Premises except for circumstances existing prior to the date hereof
caused by or attributable to the use of the Subleased Premises by Sublessor
and/or any other party using the Subleased Premises of which the Sublessor had
knowledge prior to the date hereof. Except to the extent caused by the negligent
or otherwise wrongful acts or omissions of Sublessor, its agents or employees,
Sublessor shall also not be responsible for any damage to Sublessee's property
or for injury to persons, whether caused by riot or civil commotion, fire or
earthquake damage, or overflow or leakage upon or into the Subleased Premises,
of water, steam, gas or electricity, or by any breakage in pipes or plumbing, or
breakage, leakage or obstruction of sewer pipes or other damage occasioned by
water being upon or coming through the roof, skylight, trapdoors, walls,
basement or otherwise, nor for failure of the heating (steam) plant, nor for
loss of property by theft or otherwise, nor for any damage arising from any act
or neglect of Master Lessor, any co-tenant or other occupant of the Premises, or
for that of any owner or occupants of adjoining or contiguous property.
14. CONSENT OF MASTER LESSOR. This Sublease and any extension of the term
hereof is expressly conditioned on and subject to the prior consent of the
Master Lessor, which consent has been obtained by Sublessor. This Sublease is
presented for examination only and is valid only if signed by both parties.
Unsigned it represents neither a reservation of a sublease or an agreement to
sublease by either party.
15. ALTERATIONS. Sublessee may make no alterations, additions or
improvements to the Subleased Premises without the prior written approval of
Sublessor, which approval shall not be unreasonably withheld, and without the
prior written approval of Master Lessor, which approval shall not be
unreasonably withheld.
16. CONSENT OF SUBLESSOR. In all provisions requiring the approval or
consent of Sublessor in accordance with the Master Lease, Sublessor shall
promptly forward to Master Lessor such requests as Sublessee may submit for
approval and/or consent from Master Lessor. If Master Lessor shall grant its
approval or consent, except as otherwise provided in this Sublease, Sublessor
shall be deemed to have also granted such approval or consent without any
further action on the part of the Sublessor or Sublease as long as the matter
in question does not expand any liability of the Sublessor under the Master
Lease or provided that Sublessee shall separately agree in writing to indemnify
Sublessor from and against any such additional liability.
17. ENTIRE AGREEMENT. This Sublease (including the provision of the
Master Lease incorporated herein by reference) contains the entire agreement
between the parties concerning the Subleased Premises and any agreement
hereafter made shall be ineffective to change, modify or discharge this
Sublease in whole or in part unless such agreement is in writing and signed by
the parties hereto.
18. SUBLESSOR'S REPRESENTATIONS AND WARRANTIES. Sublessor represents and
warrants that (1) the Master Lease is in full force and effect and not modified
or
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Sublessee (____)
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amended except as set forth in the copies attached hereto; and (ii) Sublessor
is not in default of any of its obligations under the Master Lease and has
received no notice asserting that it is in default of any of its obligations
under the Master Lease.
19. MISCELLANEOUS.
a. If any term, covenant or condition of this Sublease or the
application thereof to any circumstance or to any person, corporation or other
entity shall be invalid or unenforceable to any extent, the remaining terms,
covenants and conditions of this Sublease shall not be affected thereby and
shall be valid and enforceable to the fullest extent permitted by law.
b. The paragraph headings contained in the Sublease have been
included for convenience only and shall not be used in the construction or
interpretation of the Sublease.
c. This Sublease shall be governed by and construed in accordance
with the laws of the State of California.
20. SUCCESSORS AND ASSIGNS. This Sublease shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
permitted assigns.
21. HAZARDOUS MATERIALS. Sublessee shall not (either with or without
negligence) cause or permit the escape, disposal or release of any biologically
or chemically active or other hazardous substances or materials. Sublessee shall
not allow the storage or use of such substances or materials in any manner not
sanctioned by law or by the highest standards prevailing in the industry for the
storage and use of such substances or materials, nor allow to be brought into
the Project any such materials or substances except to use in the ordinary
course of Sublessee's business, and then only after written notice is given to
Master Lessor of the identity of such substances or materials. Without
limitation, hazardous substances and materials shall include those described in
the Comprehensive Environmental Response Compensation and Liability Act of 1980,
as amended, 42 U.S.C. Section 9601 et seq., any applicable state or local laws
and the regulations adopted under these acts. If any lender or governmental
agency shall ever require testing to ascertain whether or not there has been any
release of hazardous materials, then the reasonable costs thereof shall be
reimbursed by Sublessee to Master Lessor upon demand as additional charges if
such requirement applies to the Sublessee's use of the Premises. In addition,
Sublessee shall execute affidavits, representations and the like from time to
time at Master Lessor's request concerning Sublessee's best knowledge and belief
regarding the presence of hazardous substances or materials on the Premises. In
all events, Sublessee shall indemnify Master Lessor in the manner elsewhere
provided in this Lease from any release of hazardous materials on the Premises
occurring while Sublessee is in possession, or elsewhere if caused by Sublessee
or persons acting under Sublessee. The within covenants shall survive the
expiration or earlier termination of the lease term.
22. FORCE MAJEURE. Neither party shall be responsible or liable for delays
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or failures of performance under this Sublease caused by events or
circumstances beyond a party's control which may not be overcome by due
diligence.
23. SECURITY DEPOSIT. Concurrently with Sublessee's execution of this
Sublease, Sublessee shall deposit with Sublessor the sum of Thirty Thousand Six
Hundred Seventy Nine and 68/100 Dollars ($30,679.68) (the "Security Deposit").
The Security Deposit shall be held by Sublessor as security for the faithful
performance by Sublessee of all of the terms, covenants and conditions of this
Sublease to be performed by Sublessee during the term hereof. If Sublessee
defaults with respect to any provision of this Sublease, including the
provisions relating to the payment of any Rent, Sublessor may (but shall not be
required to) use, apply or retain all or any part of the Security Deposit to
cure such default or to compensate Sublessor for any other loss or damage which
Sublessor may suffer by reason of Sublessee's default. If any portion of said
deposit is so used or applied, Sublessee shall, within ten (10) days after
written demand therefor, deposit cash with Sublessor in an amount sufficient to
restore the Security Deposit to its original amount; Sublessee's failure to do
so shall be a material breach of this Sublease. Sublessor shall not be required
to keep the Security Deposit separate from its general funds, and Sublessee
shall not be entitled to interest on such deposit. If Sublessee shall fully and
faithfully perform every provision of this Sublease to be performed by it, the
Security Deposit or any balance thereof shall be returned to Sublease (or, at
Sublessor's option, to the last assignee of Sublessee's interest hereunder)
upon the expiration of the Sublease term and Sublessee's vacating the Subleased
Premises. In the event of termination of Sublessor's interest in this Sublease,
Sublessor shall transfer the Security Deposit to Sublessor's successor in
interest whereupon Sublessor shall be released from liability for the return of
the Security Deposit or the accounting therefor.
24. BROKERS. Sublessee warrants and represents to Sublessor that in the
negotiating or making of this Sublease it has worked solely with Century 21
Xxxxxxx Associates, Inc. as broker. Sublessee agrees to indemnify and hold
harmless Sublessor and Master Lessor from any claim or claims including costs,
expenses and attorney's fees incurred by Sublessor or Master Lessor asserted by
any other broker or finder for a fee or commission based upon any dealings with
or statements made by Sublessee or its agents, employees, or representatives.
Sublessor hereby agrees to pay commission in the amount of Twenty Three
Thousand Five Hundred Forty Eight and 00/100 Dollars ($23,548.00) to Century 21
Xxxxxxx Associates, Inc., as Sublessee's broker, and in the amount of Six
Thousand Seven Hundred Twenty Eight and 00/100 Dollars ($6,728.00) to Sunset
Development Company as cooperating broker, payable upon full execution of this
Sublease and upon occupancy of the Subleased Premises by Sublessee. Sublessor
expressly limits the amount of commissions and finder fees to be paid in this
matter to the amounts described above.
25. XXXX OF SALE. Concurrently with the execution hereof, Sublessee and
Sublessor shall execute that Xxxx of Sale attached hereto as Exhibit C and by
reference incorporated herein, pertaining to Sublessee's purchase of
Sublessor's furnishings in the Subleased Premises.
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IN WITNESS WHEREOF, Sublessor and Sublessee have duly executed this
Agreement of Sublease on the day and year first-above written
SUBLESSOR: SUBLESSEE:
Xxxxxxx Mortgage Corporation OnDisplay, Inc.
By: [Signature illegible] By:
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Name: Name:
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Title: Title:
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Date: Date:
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ATTACHMENTS:
Exhibit A -Subleased Premises
Exhibit B -Master Lease
Exhibit C -Xxxx of Sale
Exhibit C-1 -Inventory of Personal Property
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Sublessee [_________]
September 15, 1996
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EXHIBIT A
SUBLEASED PREMISES
[DIAGRAM]
EXHIBIT A
XXXXXX XXXXX 0, XXXX. X
0000 XXXXXX XXXXX
PRESENT PREMISES, SUITE 215 4,390 RSF
EXPANSION SPACE, SUITE 221 2,338 RSF
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TOTAL NEW PREMISES 6,728 RSF
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Sublessee [_________]
September 15, 1996
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EXHIBIT B
MASTER LEASE
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Sublessee [_________]
September 15, 1996
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EXHIBIT C
XXXX OF SALE
THIS XXXX OF SALE is entered into this ______ day of _______________, 1996, by
and between Xxxxxxx Mortgage Corporation, ("Seller") and OnDisplay, Inc.
("Buyer").
WITNESSETH
WHEREAS, Seller has sublet to Buyer 6,728 square feet of space known as Suite
215 in that building at 0000 Xxxxxx Xxxxx, Xxx Xxxxx, XX 00000 (the "Sublet
Premises"); and
WHEREAS Buyer and Seller have agreed that certain personal property used by
Seller and located in the Sublet Premises shall be sold to Buyer.
NOW THEREFORE, Buyer hereby agrees to pay to seller $52,000.00, due and payable
in three installments as follows: (1) $17,333.34 upon execution hereof; (2)
$17,333.33 on or before December 15, 1996; and (3) $17,333.33 on or before
March 15, 1997. Seller hereby sells, transfers and assigns to Buyer all of
Seller's right, title, and interest in those items of personal property which
are in the Sublet Premises and which are described on Exhibit C-1 attached
hereto. Seller represents and warrants to Buyer that the property converted
herein is free of liens and encumbrances created by Seller and Seller will
warrant and defend the same unto the Buyer, its successors and assigns, against
the unlawful claims and demands of any persons resulting from the acts of
Seller.
By acceptance hereof, Buyer acknowledges and agrees that such property is
transferred and conveyed "as-is" and "where-is" as of the date Buyer first
occupies the Sublet Premises.
IN WITNESS WHEREOF, Seller has executed this Xxxx of Sale as of the day, month
and year first above written
SELLER:
XXXXXXX MORTGAGE CORPORATION
By: [Signature Illegible]
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Its:
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BUYER:
ONDISPLAY, INC.
By:
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Its:
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Sublessee [_________]
September 15, 1996
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EXHIBIT C-1
PERSONAL PROPERTY
32 Workstations, Steelcase
6 Desks, U-Shaped, metal Steelcase
9 Files, Lateral, 2-drawer
7 Bookcases, Metal
2 Desks, L-Shaped, Wood
3 Files, Lateral, 2-Drawer, Wood
2 Credenzas, Wood
3 Desks, Metal
2 Hutches, Wood
1 Conference Table, Wood, Oval, 6-Seater
1 Conference Table, wood, round, 2-Seater
1 Bookcase, Wood
8 Chairs, side, wood
29 Chairs, task
10 Files, 3-Drawer, metal
3 Chairs, Executive
18 Chairs, task w/arms (management)
1 Table, telephone, wood
2 Cabinets, metal, for forms
2 Cabinets, metal, large for supplies
4 Tables, folding, xxxxx
2 Carts, utility with files
2 Coat racks, portable
39 Telephones, Meridian M5009
22 Art
1 Full size refrigerator
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Please initial: Sublessor [Illegible]
Sublessee [_________]
September 15, 1996
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