SUBLEASE
THIS SUBLEASE ("Sublease") is entered into by and between LIBERATE
TECHNOLOGIES, a Delaware corporation ("Sublandlord"), and XXXXXXXXXXXXX.XXX,
INC., a Delaware corporation ("Subtenant") as of February 17, 2000.
RECITALS
A. Sublandlord, as successor-in-interest to Network Computer, Inc., a
Delaware corporation, leases certain premises (the "Master Lease Premises")
located in that certain building ("Building") at Xxx Xxxxxx Xxxx Xxx, Xxx
Xxxxxx, Xxxxxxxxxx, from Circle Star Center Associates, L.P., a California
limited partnership (the "Master Landlord"), pursuant to that certain Lease
dated April 27, 1999, a complete copy of which is attached hereto as EXHIBIT
A (the "Master Lease"). Capitalized terms used but not defined herein have
the same meanings as they have in the Master Lease.
B. Sublandlord desires to sublease a portion of the Master Lease
Premises to Subtenant, and Subtenant desires to sublease a portion of the
Master Lease Premises from Sublandlord on the terms and provisions hereof.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
contained herein, Sublandlord and Subtenant covenant and agree as follows:
AGREEMENT
1. SUBLEASED PREMISES. On and subject to the terms and conditions
below, Sublandlord hereby leases to Subtenant, and Subtenant hereby leases
from Sublandlord, the space located on the fourth floor of the Building shown
by crosshatching on EXHIBIT B attached hereto and incorporated herein by this
reference (the "Subleased Premises").
2. TERMS. This Sublease shall commence on the later of (1)
substantial completion of any tenant improvements installed by Master
Landlord pursuant to the Master Lease (the "Initial Tenant Improvements") and
substantial completion of the Wiring (defined below) and issuance of all
governmental permits required for occupancy of the Subleased Premises, and
(2) March 1, 2000 (the "Commencement Date"). Subtenant shall have the right
to terminate this Sublease if the Commencement Date has not occurred by June
1, 2000. The term shall expire on the last day of the twenty-ninth full
calendar month following the Commencement Date, unless sooner terminated
pursuant to any provision hereof. For example, if the Commencement Date is
March 15, 2000, the term shall expire on August 30, 2002.
3. RENT; DEPOSITS. Commencing on the Commencement Date and continuing
throughout the term of this Sublease, Subtenant shall pay monthly rent
("Rent") to Sublandlord in the monthly amount of Ninety-two Thousand Nine
Hundred Sixty-three Dollars and Fifty Cents ($92,963.50) per month. Rent
shall be payable to Sublandlord in lawful money of the United States, in
advance, without prior notice, demand, or offset, on or before the first day
of each calendar month during the term hereof. All Rent shall be paid to
Sublandlord at the address specified for notice to Sublandlord, below. If
the Commencement Date, or termination date does
not fall on the first day of a calendar month, Rent for any partial month
shall be prorated on a daily basis based upon a thirty (30) day calendar
month. On each anniversary of the Commencement Date the amount of Rent then
in effect shall be increased by three percent (3%) per annum.
(a) SUBTENANT'S SHARE OF EXPENSES AND TAXES. Subtenant shall
pay, in advance on the first day of each calendar month, together with
Tenant's payment of monthly Rent, twenty-five and eight tenths percent
(25.8%) of Expenses and Taxes ("Subtenant's Allocable Share of Expenses and
Taxes") as the terms "Expenses" and "Taxes" are defined and due under the
Master Lease, allocable to the Building. For the first twelve (12) calendar
months of the term, Tenant's Allocable Share of Taxes and Expenses is
estimated to be Nineteen Thousand Three Hundred Eighty-nine and 53/100
Dollars ($19,389.53) per month. Sublandlord may adjust the amount of
Subtenant's Allocable Share of Expenses and Taxes at any time the amount of
Expenses and Taxes being charged to Sublandlord under the Master Lease is
adjusted in accordance with the terms thereof. Promptly following
reconciliation of the amounts charged to Sublandlord under Sections 3(c)(2)
and 3(c)(3) of the Master Lease, the amounts charged to Subtenant pursuant to
this Section 3(a) shall be reconciled in accordance with the provisions of
Sections 3(c)(2) and 3(c)(3) of the Master Lease, which are incorporated
herein by Section 6, below.
(b) FIRST PAYMENT OF RENT AND SUBTENANT'S ALLOCABLE SHARE OF
EXPENSES AND TAXES. Upon execution of this Sublease, Subtenant shall pay to
Sublandlord the sum of One Hundred Twelve Thousand Three Hundred Fifty-three
and 03/10 Dollars ($112,353.03), constituting payment in advance of the first
month's Rent and the first month's payment of Subtenant's Allocable Share of
Expenses and Taxes.
(c) SECURITY DEPOSIT. Upon execution of this Sublease, Subtenant
shall pay to Sublandlord the sum equal to three months Rent, Two Hundred
Seventy-eight Thousand Eight Hundred Ninety Dollars and Fifty Cents
($278,890.50), constituting the Security Deposit. The Security Deposit is
not advance rental, nor a measure of Sublandlord's damages. Sublandlord
shall not be required to keep the Security Deposit separate from its general
accounts. Upon the occurrence of any default by Subtenant, Sublandlord may,
from time to time and without prejudice to any other remedy available to
Sublandlord provided herein or by law, use the Security Deposit to the extent
necessary to make good any arrears in Rent or other payments due hereunder,
or other damage, injury, expense or liability caused by such default.
Subtenant shall pay to Sublandlord, upon demand, the amount so applied to
restore the Security Deposit to the original amount. Any remaining balance
shall be returned to Subtenant after Subtenant has surrendered the Subleased
Premises in the condition required and all Subtenant's other obligations
under this Sublease have been fulfilled.
4. TENANT IMPROVEMENTS; WIRING COSTS. Subtenant acknowledges that
Master Landlord is obligated to install the Initial Tenant Improvements
pursuant to the Master Lease. Sublandlord covenants to use reasonable
efforts to cause Master Landlord to install the Initial Tenant Improvements
pursuant to the Master Lease. Sublandlord shall contract with an electrical
subcontractor of its choice (the "Wiring Subcontractor") pursuant to a
contract reasonably approved by Subtenant, and shall use reasonable efforts
to cause the Wiring Subcontractor to install Cat 5, Gigabit band-width
certifiable wiring, at a rate of 120 drops in hardwall locations
and 80 drops in cubicle locations (evenly distributed), all wired to a
central IDF (the "Wiring"). A "drop" is defined as two Ethernet connections
and two telephone connections. All costs and expenses incurred in the
installation of such Wiring are referred to herein as the "Wiring Costs."
Subtenant agrees to look solely to the Wiring Contractor for any claims
arising out of the installation of the Wiring referred to above. Subtenant
shall have the right to approve, in its reasonable discretion, within three
(3) business days following its receipt thereof, the plans for the Initial
Tenant Improvements and the Wiring. Subtenant's failure to approve or
disapprove such plans in writing within three (3) days of Sublandlord's
delivery thereof to Subtenant shall be deemed Subtenant's approval of such
plans.
Sublandlord makes no representation or warranty with respect to the condition
of Subleased Premises and shall not be subject to any liability arising out
of the condition of the Subleased Premises. Subtenant agrees to look solely
to the Wiring Subcontractor for any claims arising out of the installation of
the Wiring referred to above.
Sublandlord shall use reasonable efforts to give Subtenant thirty (30) days
notice prior to the anticipated completion of the Tenant Improvements and
following such notice Subtenant may enter the Subleased Premises for the
purposes of making the Subleased Premises ready for occupancy.
5. USE. Subtenant may use the Subleased Premises only for uses
permitted by the Master Lease. Subtenant shall not use or permit the use of
the Subleased Premises in a manner that will create waste or a nuisance,
interfere with or disturb other tenants in the Building or violate the
provisions of the Master Lease.
6. INCORPORATION OF SUBLEASE. All of the terms and provisions of
the Master Lease, except as provided below, are incorporated into and made a
part of this Sublease and the rights and obligations of the parties under the
Master Lease are hereby imposed upon the parties hereto with respect to the
Subleased Premises, Sublandlord being substituted for the "Landlord" in the
Master Lease (except in Sections 1 (excluding the first two sentences
thereof), 3(c)(5), 7, 12, 20, 21 and 39 in which references to "Landlord"
shall continue to be deemed to refer to the Master Landlord) and Subtenant
being substituted for the "Tenant" in the Master Lease. It is further
understood that where reference is made in the Master Lease to the
"Premises," the same shall mean the Subleased Premises as defined herein;
where reference is made to the "Commencement Date," the same shall mean the
Commencement Date as defined herein; and where reference is made to "this
Lease," the same shall mean this Sublease. Notwithstanding the foregoing,
Sublandlord shall have no obligation to perform any of Master Landlord's
obligations under the Master Lease. The following Sections of the Master
Lease are not incorporated herein: Sections 2, 3(a), 3(b), 3(c)(1)(B), 9, 32,
33, 34, 36 (third sentence only) 37, 38, 40, 41, 42, 43, 44, 45, Exhibit B
(Work Letter), Form of Letter of Credit, and Exhibit G (Description of Second
Building).
Section 6 of the Master Lease, which is incorporated herein, requires that
Sublandlord notify Subtenant whether any Alterations will be required to be
removed and the Subleased Premises restored to its condition upon delivery to
Subtenant. Sublandlord hereby notifies Subtenant that at the expiration or
earlier termination of this Sublease, any alterations to the Wiring or any
other portion of the Subleased Premises performed by Subtenant must be
removed and the Subleased
Premises returned to the condition in which they were first delivered to
Subtenant, at Subtenant's sole cost and expense.
7. SUBLANDLORD'S OBLIGATIONS. Except as expressly otherwise provided
herein, Sublandlord shall have no obligation to Subtenant with respect to the
Subleased Premises or the performance by Master Landlord of any obligations
of Master Landlord under the Master Lease, except for enforcement of Master
Landlord's obligations under the Master Lease. Such efforts shall include,
without limitation, upon Subtenant's request (a) notifying Master Landlord of
its non-performance under the Master Lease and requesting that Master
Landlord perform its obligations under the Master Lease and/or (b) assigning
Sublandlord's rights under the Master Lease to Subtenant to the extent
necessary to permit Subtenant to institute legal proceedings against Master
Landlord in order to obtain the performance of Master Landlord's obligations
under the Master Lease.
8. ASSIGNMENT AND SUBLETTING. Subtenant may not assign, sublet,
transfer, pledge, hypothecate or otherwise encumber the Subleased Premises,
in whole or in part, or permit the use or occupancy of the Subleased Premises
by anyone other than Subtenant unless Sublandlord has obtained Sublandlord's
consent thereto (which shall not be unreasonably withheld) and the consent of
Master Landlord. Regardless of Sublandlord's consent, no subletting or
assignment shall release Subtenant from its obligations hereunder.
9. PARKING. Subtenant shall have the right to use one hundred
eighty-four (184) parking spaces in common with other occupants of the
Building and the project of which the Building is a part.
10. NOTICES. The addresses specified in the Master Lease for receipt
of notices to each of the parties are deleted and replaced with the following:
TO SUBLANDLORD AT: the Master Lease Premises
Attn: Director of Operations
TO SUBTENANT AT: the Subleased Premises
Attn: General Counsel
11. BROKERS. Each party hereto represents and warrants that it has
dealt with no broker in connection with this Sublease and the transactions
contemplated herein other than Cornish & Xxxxx. Each party shall indemnify,
protect, defend and hold the other party harmless from all costs and expenses
(including reasonable attorneys' fees) arising from or relating to a breach
of the foregoing representation and warranty.
12. AUTHORITY. Sublandlord hereby warrants and represents that it is
a corporation, duly authorized and in good standing under the laws of the
State of Delaware and has the power to execute and deliver this Sublease.
The persons signing on behalf of the Sublandlord hereby represent and warrant
that they are the duly authorized representatives of the Sublandlord and have
the power and authority to bind the Sublandlord. Subtenant hereby warrants
and represents that it is a corporation, duly authorized and in good standing
under the laws of the State of
Delaware and has the power to execute and deliver this Sublease. The persons
signing on behalf of the Subtenant hereby represent and warrant that they are
the duly authorized representatives of the Subtenant and have the power and
authority to bind the Subtenant.
13. NO ANIMALS. Subtenant shall not permit any animals to be brought
into the Premises, the Building or the common areas of the project of which
the Building is a part.
14. COUNTERPARTS. This Sublease may be executed in two (2) or more
counterparts, each of which shall be deemed an original but when taken
together shall constitute one and the same instrument.
(Remainder of Page Intentionally Left Blank)
IN WITNESS WHEREOF, the parties have executed this Sublease as of the
date first written above.
SUBLANDLORD:
LIBERATE TECHNOLOGIES,
a Delaware corporation
By: /S/ XXXXXXXX XXXXXXXX
----------------------
Print Name: Xxxxxxxx Xxxxxxxx
[CORPORATE APPROVAL STAMP]
Its: President
By: /S/ XXXXXX XXXXXX
----------------------
Xxxxxx Xxxxxx
Its: Secretary
[CORPORATE APPROVAL STAMP]
SUBTENANT:
XXXXXXXXXXXXX.XXX, INC.,
a Delaware corporation
By: /s/ XXXXXXX X. MOUNTALOS
----------------------
Print Name: Xxxxxxx X. Mountalos
Its: President
By: /s/ XXXXX X. XXXXXXX
----------------------
Print Name: Xxxxx X. Xxxxxxx
Its: Secretary
EXHIBIT A
MASTER LEASE
