SUBLEASE
Exhibit
10.51
SUBLEASE
THIS
SUBLEASE ("Sublease") is dated as of December 13, 2005, by and between Anacomp,
Inc., an Indiana corporation ("Sublandlord"), and American Technology
Corporation, a Delaware corporation ("Subtenant").
RECITALS
A. Sublandlord
is tenant under that certain Office Lease dated June 14, 2002 (the "Main Lease")
with Xxxxxx Realty, L.P., a Delaware limited partnership ("Master Landlord"),
as
landlord, whereby Master Landlord leases to Sublandlord a single story building
containing approximately 68,910 rentable square feet of space located at 00000
Xxxxxx xx Xxxxxxx, Xxx Xxxxx, Xxxxxxxxxx 00000 (the "Building", and together
with the entirety of the premises leased by Sublandlord under the Main Lease,
the "Original Premises").
B. Sublandlord
desires to sublet to Subtenant, and Subtenant desires to sublet from
Sublandlord, a portion of the Building (the "Sublet Premises") comprised of
approximately 23,698 square feet of office space, which square footage includes
approximately 50% of the lobby
area of the Building as depicted on the Floor Plan (defined below) (the "Lobby
Area") and
the
computer room. A graphic depiction of the Sublet Premises is contained in
Exhibit
A
attached
hereto (the "Floor Plan").
C. The
parties are agreeable to entering into a sublease of the Sublet Premises on
the
terms and conditions set forth below.
D. Unless
otherwise defined in this Sublease, all capitalized terms used herein have
the
meanings ascribed to them in the Main Lease.
AGREEMENT
NOW,
THEREFORE, for and in consideration of the mutual promises set forth herein
and
other good and valuable consideration, the receipt and sufficiency of which
are
hereby acknowledged, Sublandlord and Subtenant hereby agree as
follows:
1. Sublet
Premises.
Subject
to the terms, conditions and covenants hereinafter set forth, Sublandlord hereby
subleases the Sublet Premises to Subtenant, and Subtenant hereby hires and
accepts the Sublet Premises from Sublandlord. In addition, and as part of this
Sublease, Sublandlord shall lease to Subtenant, and Subtenant shall lease from
Sublandlord, any and all existing permanently attached improvements in the
Sublet Premises (the "Improvements") upon all of the terms, covenants and
conditions herein contained. As used herein, the term "Sublet Premises" shall
also include the Improvements for the purposes of Subtenant's
maintenance,,
repair
and surrender obligations. Consistent with the Main Lease, Subtenant shall
use
the Sublet Premises solely for general office, assembly, research and
development, or any other legally permitted use pursuant to the M1B zoning
(or
successor zoning designation) applicable to the Building. The precise square
footage of the Sublet Premises may vary slightly (not greater than 3% of the
amount set forth thereon) from the square footage described in Recital B above
because it is subject to space planning and final measurement. Before Subtenant
takes possession of the Sublet Premises, Sublandlord and Subtenant shall
mutually agree upon the precise rentable square footage of the Sublet Premises
(the
"Net
Square Footage") using current industry measuring standards endorsed by the
Building
Owners
and Managers Association but consistent with any such standard set forth in
the
Main Lease (the "BOMA Standard").
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(a) As
part
of Subtenant's rights under this Sublease which are subject to its quiet
enjoyment protections set forth in Section 40 below, Subtenant shall have the
non-exclusive right in common with Sublandlord and any other subtenants and
occupants of the Building to use the Lobby Area and, if applicable, any common
areas of the Original Premises that are required for Subtenant's access to,
and
use and enjoyment of, the Sublet Premises (collectively, the "Building Common
Areas"). Neither Sublandlord nor Subtenant shall cause or permit any obstruction
of or interference with the other party's rights to use the Building Common
Areas for their intended purposes.
(b) Subtenant
shall have the non-exclusive use of a portion of the exterior of the
roof
of the Building (the "Roof Area") for the installation of Telecommunications
Equipment
(as
defined in Article 22 of the Main Lease), as such location shall be approved
in
advance by Sublandlord (which approval shall not be unreasonably withheld or
delayed), and shall have the non-exclusive right to install connector cables
within the Building as necessary to connect the Telecommunications Equipment
to
the equipment in the Sublet Premises subject to all of the terms and conditions
of Article 22 of the Main Lease (including, without limitation, any and all
approvals required from Landlord) and the following conditions: (1) prior to
submission to the City of San Diego, if required and Landlord, Subtenant shall
provide to Sublandlord for review and approval, complete plans and
specifications for the Telecommunications Equipment which shall include a list
of all such equipment and the proposed location for the installation of the
same; (2) Subtenant shall, at Subtenant's sole cost and expense, obtain any
and
all required permits for any such installation and operation of such
Telecommunications Equipment, including, without limitation all building permits
and shall provide Landlord and Sublandlord with copies of the same; (3)
Subtenant shall comply with all applicable covenants, conditions and
restrictions and all governmental rules and regulations applicable to the
installation and operation of such Telecommunications Equipment, including,
without limitation, any requirements
for screening of the same and FCC requirements; and (4) Subtenant shall, at
its
sole
cost,
remove such Telecommunications Equipment upon the expiration or earlier
termination of this Sublease and shall return the affected portion of the
Building and the roof of the Building to the condition required by Landlord
pursuant to the terms and conditions of the Main Lease. Any costs
related to Subtenant's installation or use of Telecommunications Equipment
that
are passed
through
to Sublandlord pursuant to the Main Lease shall be reimbursed to Sublandlord
by
Subtenant within ten (10) days after Sublandlord's delivery of a written demand
therefor.
2. Term.
The term
of this Sublease (the "Term") shall be the period commencing on January 1,
2006
(the "Commencement Date") and ending at midnight on May 31, 2011 (the
"Expiration Date"), unless sooner terminated as herein provided.
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3. Early
Access.
Prior to
the Commencement Date of this Sublease (but after the Master Landlord has
consented in writing to this Sublease). Subtenant shall have access to the
Sublet Premises and the Building Common Areas and Roof Area to prepare the
Sublet Space for occupancy (i.e., installing furniture, fixtures and equipment,
telecommunications equipment and storing tiles). In particular, Sublandlord
shall vacate the portion of the Sublet Premises designated as area "A" in the
Floor Plan, and with the exception of the Improvements and the FF&E
(hereinafter defined), such area shall be cleared of all persons and personal
property, and following the execution and delivery of this Sublease by the
parties, Sublandlord shall allow Subtenant to occupy such area, within 2
business days after the execution and delivery of this Sublease by Sublandlord
and Subtenant, for the purpose of commencing improvements and preparing such
space for occupancy. If Subtenant occupies the Sublet Premises before the
Commencement Date for any use other than construction of Subtenant's
improvements thereto or staging Subtenant's personal property in the Sublet
Premises, Subtenant shall be liable (for the period commencing on the date
of
such early access to the Commencement Date) for its share of the cost of
utilities enjoyed by Subtenant during that period as reasonably determined
by
Sublandlord pursuant to invoices and other supporting documentation submitted
to
Subtenant. Any ear]y access shall not give rise to a right of possession in
Subtenant's favor unless and until the condition precedent described in Section
4 below has been met.
4. Condition
Precedent.
The
effectiveness of this Sublease is conditioned upon Master Landlord's signature
and delivery of the "Consent to Sublease" at the end of this Sublease within
ten
(10) business days after Sublandlord and Subtenant have executed this Sublease.
Sublandlord shall use commercially reasonable and diligent efforts to obtain
Master Landlord's signature and to cause Master Landlord to deliver such Consent
to Sublease within such period. Unless and until such signature is delivered
by
Master Landlord to Sublandlord, this Sublease shall not bind or benefit
Sublandlord or Subtenant, and Subtenant shall have no right to access the Sublet
Premises early or otherwise take possession of the Sublet Premises. If
Sublandlord shall not have obtained Master Landlord's signature to the Consent
to Sublease in the form attached hereto within such ten business day period,
then Subtenant shall be entitled to negotiate the terms and conditions of such
consent directly with Master Landlord, subject only to Sublandlord's right
to
review and approve the final form of the Consent to Sublease, which approval
shall not be unreasonably withheld, conditioned or delayed by Sublandlord.
If
despite its reasonable efforts Subtenant is unable to obtain the Consent to
Sublease in the form attached hereto by December 21, 2005, Subtenant shall
have
the right to terminate this Sublease by delivery of written notice of its
election to terminate to Sublandlord on or before December 27,
2005.
5. Lobby
Improvements.
Subject
to the requirements of Article 8 of the Main Lease
and
subject to Force Majeure as defined in Section 29.16 of the Main Lease,
Sublandlord agrees to use its commercially reasonable efforts to cause those
certain Lobby Area improvements set forth
in
the space plan prepared by Xxxxx Consulting Architects and attached hereto
as Exhibit D (the
"Lobby Improvements") to be substantially completed within thirty (30) days
after the Master Landlord's signature and delivery of the Consent to Sublease
pursuant to the terms of Article 4 above. Sublandlord shall pay up to a maximum
of Ten Thousand Dollars ($10,000) toward the actual expenses of the Lobby
Improvements (the "Sublandlord Costs"); any construction costs or other expenses
in excess of the Sublandlord Costs (the "Subtenant Costs") shall be the sole
obligation of Subtenant. Subtenant will reimburse Sublandlord for the Subtenant
Costs within fifteen (15) days after Sublandlord delivers to Subtenant a written
demand for reimbursement along with invoices reasonably acceptable to Subtenant
evidencing such Subtenant Costs.
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6. Intentionally
Omitted.
7. Subordinate
to Main Lease.
This
Sublease is and shall be subject and subordinate
to the
Main Lease, a copy of which is attached hereto as Exhibit
B,
and to
all matters of record concerning the Sublet Premises; provided, however, that
in
the event of any inconsistencies between the terms and provisions of the Main
Lease and the terms and provisions of this Sublease, the terms and provisions
of
this Sublease shall govern as between Sublandlord and Subtenant only.
Sublandlord agrees that it will not voluntarily enter into any agreement with
Master
Landlord hereafter which would result in the termination of flee Main Lease
(insofar as it
covers
the Sublet Premises) prior to the Expiration Date.
8. Compliance
with Main Lease.
8.1 Except
for the "Excluded Provisions" (defined below), all terms, covenants and
conditions of the Main Lease (the "Incorporated Provisions") are incorporated
herein by reference. The following terms and conditions contained in the Main
Lease are excluded from this Sublease: Summary of Basic Lease Information,
Sections 2.2, 3.1, 3.2, 6. 1, Article 21, Sections 29. 13, and 29.24, Exhibit
B,
Exhibit C, Exhibit G and Exhibit H (collectively, the `Excluded Provisions");
and the following terms and conditions of the Main Lease are modified, as
between Sublandlord and Subtenant only, as follows: Section 1.1 is
modified to eliminate any Tenant Work Letter, Section 4.4 is modified to provide
that Subtenant shall pay Subtenant's Share (as defined in Section 10.3 below)
of
Direct Expenses for each Expense Year in excess of the Direct Expenses for
the
2006 Expense Year; Section 6.2 is modified to provide that Sublandlord shall
maintain the Building Systems as a Direct Expense (provided that no expenses
associated with such maintenance and repair obligations, which under prudent
standards of building management would have been incurred
during
the 2006 Expense Year shall be payable by Subtenant if incurred after the 2006
Expense Year); Article 7 is modified to provide that Sublandlord shall maintain
the BS Exception items subject to the limitations of Section 6.2 as modified
above, and further subject to Subtenant's obligation to pay for any repairs
to
the extent caused due to Subtenant's use of the Sublet Premises for other than
normal and customary business operations; Article 7 is modified to provide
that
Sublandlord shall maintain the BS Exception items, and to provide that as
between Sublandlord and Subtenant, if Master Landlord makes any repairs as
the
result of Sublandlord's or Subtenant's negligence or willful misconduct, the
party causing such damage shall indemnify the other for the costs payable to
Master Landlord pursuant to such repairs; Section 8.2 is modified to provide
that Subtenant is not responsible for removing any Alterations to the Sublet
Premises previously made by Sublandlord; Section 10.2 to the extent that the
insurance coverages to be carried by Master Landlord shall be carried solely
by
Master Landlord and not Sublandlord, Section 10.3.2
is
modified to provide that Subtenant shall not be obligated to insure any original
improvements; as between Sublandlord and Subtenant only. Article 14 of the
Lease
is superseded by Section 22 below. Except to the extent that the Incorporated
Provisions are inapplicable to, inconsistent with or are modified by the
provisions of this Sublease, the Incorporated Provisions binding or inuring
to
the benefit of Master Landlord shall, in respect of this Sublease, bind or
inure
to the benefit of Sublandlord; provided Sublandlord will make reasonable efforts
not to interfere with Subtenant's business on the Sublet Premises, and the
Incorporated Provisions binding or inuring
to the
benefit of the tenant thereunder shall, in respect of this Sublease, bind or
inure to the benefit of Subtenant, with the same force and effect as if the
Incorporated Provisions were
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completely
set forth in this Sublease, and as if the words "Landlord" and "Tenant" or
words
of similar import, wherever the same appear in the Incorporated Provisions,
were
construed to mean, respectively, "Sublandlord" and "Subtenant" in this Sublease,
and as if the words "Premises" or words of similar import, wherever the same
appear in the Incorporated Provisions, were construed to mean the Sublet
Premises. Notwithstanding the foregoing, to the extent provisions of the Main
Lease are unique and personal to Sublandlord's interest in the Retained Premises
pursuant to the Main Lease such that only Sublandlord could feasibly comply
with
such provisions, then Subtenant shall not be required to comply with such
provisions.
8.2
The
time
limits contained in the Main Lease for the giving of notices, making of demands
or performing of any act, condition or covenant on the part of the tenant
thereunder, or for the exercise by the tenant thereunder of any right, remedy
or
option, are changed for the purposes of incorporation herein by reference by
shortening the same in each instance by two days, so that in each instance
Subtenant shall have two days less time to observe or perform hereunder than
Sublandlord has as the tenant under the Main Lease, except that:
(a) Any
such
time limits which are seven days or less shall instead be shortened in each
instance by three business days, and
(b) any
such
time limits which are three days or less shall instead expire on the same day
such time limit expires under the Main Lease.
8.3
Neither
Subtenant nor Sublandlord shall do or permit to be done any act or
thing
which may constitute a breach or violation of the Incorporated Provisions.
Each
party hereto shall indemnify, defend, protect and hold the other party hereto
harmless from any and all damages, claims, loss, liability, cost and expense
(including, without limitation, court costs and reasonable attorneys' fees)
incurred in connection with or arising from such indemnifying party's breach
or
violation of any of the Incorporated Provisions. Subject to any nondisturbance
agreement between Master Landlord and Subtenant and the terms of the Main Lease
(including, without limitation, the terms of Section 14.7 of the Main Lease),
if
Sublandlord's interest as tenant under the Main Lease terminates for any reason,
then this Sublease shall terminate simultaneously therewith.
8.4 If
any of
the express provisions of this Sublease shall conflict with any of the
Incorporated Provisions, such conflict shall be resolved in favor of the express
provisions of this Sublease. If Subtenant receives any notice or demand from
Master Landlord under the Main Lease, Subtenant shall deliver a copy thereof
to
Sublandlord by overnight courier the next business day or as soon thereafter
as
is reasonably possible but in no event later than two business days after
Subtenant's receipt of such notice. If Sublandlord receives any notice of
default from Master Landlord under the Main Lease or any other demand which
affects the Sublet Premises, Sublandlord shall deliver a copy thereof to
Subtenant by overnight courier the next business day or as soon thereafter
as is
reasonably possible but in no event later than two business days after
Sublandlord's receipt of such notice.
8.5
Sublandlord
hereby represents and warrants the following to Subtenant:
(a) Sublandlord
has paid all rent currently due under the Main Lease;
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(b) Sublandlord
knows of no event which is or upon written notice and expiration of any cure
period would be an event of default under the Main Lease;
(c) Sublandlord
knows of no defect as to Building Systems which would make any part of the
Sublet Premises unsuitable for Subtenant's use; and
(d) The
copy
of the Main Lease attached hereto is true, correct and complete and there are
no
other agreements affecting the Sublet Premises.
9. Performance
by Sublandlord.
Sublandlord shall not be required to furnish, supply or install anything
required to be furnished, supplied or installed by Master Landlord wider any
article of the Main Lease. Notwithstanding the foregoing, with respect to work,
services, repairs and restoration or the performance of other obligations
required of Master Landlord under the Main Lease, Sublandlord, upon written
request from Subtenant, shall use reasonable efforts to enforce Master
Landlord's obligations tinder the Main Lease and/or cooperate with Subtenant
in
its efforts to do so. Sublandlord shall have no liability or responsibility
whatsoever for Master Landlord's failure or refusal to perform under the
Incorporated Provisions. Subtenant shall have the right to instruct Master
Landlord with respect to the performance by Master Landlord of Master Landlord's
obligations as landlord under the Main Lease. Upon Sublandlord's receipt of
a
written notice from Subtenant with respect to any of Sublandlord's obligations
as Sublandlord under this Sublease, where Sublandlord has failed to perform
such
obligation because of a failure of Master Landlord to perform its obligation
under the Main Lease, then Sublandlord will use its reasonable efforts to cause
Master Landlord to observe and perform the same, provided, however, that
Sublandlord does not guarantee Master Landlord's compliance with the
Incorporated Provisions nor shall Sublandlord have any obligation to pursue
any
litigation against Master Landlord in order to enforce any obligation of Master
Landlord's under the Main Lease, and provided further, if Sublandlord is
unsuccessful in its efforts, Sublandlord shall direct Subtenant, in the name
of
Sublandlord if necessary, to pursue its claim directly against Master Landlord
which shall be done at Subtenant's sole cost and expense. If Master Landlord
fails to perform any obligation under the Main Lease for which Subtenant has
given Sublandlord a written notice with respect thereto, Sublandlord and
Subtenant shall cooperate with each other and keep each other reasonably
informed as to the status of any efforts and/or litigation relating to enforcing
Master Landlord's obligations under the Main Lease. Subtenant shall not in
any
event have any rights in respect of the Sublet Premises greater than
Sublandlord's rights in respect of the Sublet Premises. As to the Incorporated
Provisions, Sublandlord shall not be required to make any payment or perform
any
obligation, and Sublandlord shall have no liability to Subtenant for any matter
whatsoever (except as expressly set forth in this Sublease), except for (i)
Sublandlord's obligation to pay Rent due and to perform its other obligations
arising under the Main Lease, and (ii) Sublandlord's obligation to use
reasonable efforts, upon the written request of Subtenant, to cause Master
Landlord to observe and/or perform its obligations under the Main Lease.
Notwithstanding the foregoing or anything else herein to the contrary,
Sublandlord covenants and agrees with Subtenant that Sublandlord will pay all
basic rent and additional rent payable by Sublandlord pursuant to the Main
Lease
to the extent that failure to perform the same would adversely affect
Subtenant's use or occupancy of the Sublet Premises and to the extent that
Subtenant continues to pay Rent (as defined in Section 10.4 below) to
Sublandlord as required under this Sublease, and that Sublandlord shall extend
all reasonable cooperation to Subtenant to enable Subtenant to receive the
benefits under this Sublease, as the same are dependent upon performance under
the Main Lease.
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10. Rent.
10.1 Base
Rent.
Subtenant shall pay to Sublandlord, as monthly base rent for the Sublet Premises
("Base Rent"), an amount equal to one dollar and twenty five cents ($1.25)
per
rentable square foot based on the Net Square Footage of the Sublet Premises.
Subtenant shall pay Base Rent to Sublandlord in advance of the first day of
each
month during the Term at the offices of Sublandlord identified in Section 26
below or elsewhere as Sublandlord shall direct. In accordance with the
subletting obligations of the Main Lease, if Subtenant receives a written notice
from Master Landlord that the Sublandlord is in default under the Main Lease
beyond
any applicable notice and cure period and Master Landlord directs Subtenant
to
pay Rent
directly
to Master Landlord, then Subtenant shall be permitted to pay the Rent due under
this Sublease directly to or as directed by the Master Landlord, which payments
shall be credited against any Rent payments due under this Sublease, and
Sublandlord hereby consents to such payments by Subtenant to Master
Landlord.
10.2 Initial
Abatement Period.
In lieu
of Sublandlord contributing money toward the cost of tenant improvements in
the
Sublet Premises (other than toward the Lobby Improvements and Computer Room
Improvements referred to in Section 5 above), Subtenant shall
have no obligation to pay any Base Rent to Sublandlord that would otherwise
be
payable by
Subtenant with respect to the period which begins on the Commencement Date
and
ends at midnight on March 15, 2006.
10.3 Additional
Charges.
Subtenant shall pay to Sublandlord, concurrently
with its payment of Base Rent, all Additional Charges. As used herein,
"Additional Charges" shall mean Subtenant's Proportionate Share of the
incremental increase in "Direct Expenses" (as defined in the Main Lease) plus
Building System maintenance expenses above the actual Direct Expenses plus
Building System maintenance expenses for the 2006 "Expense Year" (as defined
in
the Main Lease) plus Building System maintenance expenses for the Building,
and
all other amounts payable by Subtenant to Sublandlord under this Sublease.
As
used herein, "Subtenant's Proportionate Share" means a fraction, the numerator
of which is the Net Square Footage of the Sublet Premises (to be determined
in
accordance with Section 1 above) and the denominator of which is the total
square footage of the Building (i.e., 68,910, per the Main Lease).
10.4 Payment
of Rent.
"Rent"
(which term shall include Base Rent and any Additional Charges) shall be paid
promptly when due, without notice or demand and without deduction, abatement,
counterclaim or setoff of any amount for any reason whatsoever: provided that
(a) if Sublandlord's obligation to pay Rent (as such term is defined in the
Main
Lease) under the Main Lease shall be abated for a reason that is also applicable
to the Sublet Premises (i.e., the Sublet Premises are affected in a
substantially similar manner as the balance of space in the Building is
affected), Subtenant's obligation to pay Rent under this Sublease shall be
proportionately abated, (b) if Sublandlord is entitled to any rent credits
wider
the Main Lease for a reason that is also applicable to the Sublet Premises,
Subtenant shall be entitled to a proportionate rent credit under this Sublease
and (c) if Sublandlord receives any reimbursements for any payment of Direct
Expenses under the Main Lease,,
Sublandlord shall pay to Subtenant
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within
30
days of such receipt Subtenant's Proportionate Share of the amount reimbursed
to
Sublandlord. Rent shad be paid to Sublandlord by Subtenant at the address of
Sublandlord set forth in Section 26 below or to such other person and/or at
such
other address as Sublandlord may from time to time designate by notice to
Subtenant. No payment by Subtenant or receipt by Sublandlord of any lesser
amount than the amount stipulated to be paid hereunder shall be deemed other
than on account of the earliest stipulated Rent due under this Sublease; nor
shall any endorsement or statement on airy check or letter be deemed an accord
and satisfaction, and Sublandlord may accept any check or payment without
prejudice to Sublandlord's right to recover the balance due or to pursue any
other remedy available to Sublandlord.
10.5 Services.
Subtenant shall arrange for janitorial, electrical and telephone service to
be
provided directly to the Sublet Premises and shall be responsible for all costs
associated with the initiation of such service (including metering costs which
may be accomplished by a separate meter) and all costs of Subtenant's janitorial
service and electrical and telephone usage. Subtenant acknowledges and
understands that the Base Rent payable by Subtenant
to Sublandlord is "net" of the cost of supplying (i) electricity consumed by
Subtenant
and (ii)
janitorial services for the Sublet Premises. If a separate meter cannot be
installed then the determination of Subtenant's electrical usage shall be based
on a reasonable estimate of Subtenant's share of electrical usage in the Sublet
Premises.
10.6 Possession
Date.
Subtenant hereby agrees that if Subtenant takes possession of the Sublet
Premises prior to the Commencement Date, then from and after the date Subtenant
takes possession of the Sublet Premises (the "Possession Date"), all of
Subtenant's obligations
and duties under this Sublease shall be effective except for the obligation
to
pay Base
Rent.
Notwithstanding the foregoing, commencing on the Possession Date and continuing
until the Commencement Date, Subtenant shall be responsible for payment of
Subtenant's Proportionate Share of all utility costs attributable to its
possession of the Sublet Premises.
11. Security
Deposit.
On or
before the Possession Date, there shall be due and payable by Subtenant a
security deposit in the form of cash or an irrevocable letter of credit in
form
and content acceptable to Sublandlord, in an amount equal to two (2) months'
Base Rent, (or in the amount of $55,265.00 if the Base Rent cannot then be
calculated because the Net Square Footage of the Sublet Premises has not yet
been determined in accordance with Section 1 above). Such deposit shall be
held
by Sublandlord (without any obligation to pay interest thereon or segregate
such
monies from Sublandlord's general funds) as security for the performance of
Subtenant's obligations under this Sublease. It is expressly understood that
the
security deposit is not an advance payment of Base Rent or a measure of
Sublandlord's damages in the event of Subtenant's default under this Sublease.
Upon the occurrence of any event of default by Subtenant or breach by Subtenant
of its covenants under this Sublease, Sublandlord may, from time to time,
without prejudice to any other remedy provided herein or provided by law, use,
apply, or retain all or part of the security deposit for the payment of any
Base
Rent or other sum in default or breach, or to compensate Sublandlord for any
costs and expenses actually incurred by Sublandlord to cure such default or
breach or incurred by Sublandlord as a result of any uncured default or breach
in accordance with this Sublease. If any portion of the security deposit is
so
used or applied, Subtenant shall, within five (5) business days after written
demand therefor, deposit cash with Sublandlord or replenish the letter of credit
in an amount sufficient to restore the security deposit to the amount required
hereunder. Subtenant's failure to do so shall
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be
a
default under this Sublease. The balance of the security deposit shall be
returned by Sublandlord to Subtenant at such time after termination of this
Sublease and when all of Subtenant's obligations have been fulfilled. Subtenant
shall not be entitled to any interest on the security deposit. Subtenant hereby
waives the provisions of California Civil Code section 1950.7 or any successor
statute (which waiver is intended to include, without limitation, any and all
limitations on use of the deposit as security for all of Landlord's damages
arising out of a tenant's breach of its obligations under a lease).
12. Physical
Condition.
Subject
to the terms of Article 3 above. Sublandlord shall vacate the Sublet Premises
on
or before the Commencement Date, and with the exception of the Improvements
and
the FF&E, the Sublet Premises shall be cleared of all persons and personal
property, in a "broom clean" condition with all carpeting vacuumed and all
cabling of the Sublet Premises left in a neat and orderly condition, and
otherwise in "as is/where is" condition. Except as specifically provided herein,
Sublandlord shall have no obligations under this Sublease or otherwise to
perform any work, alterations, installations or to remove any asbestos or
asbestos-containing materials, if any, from the Sublet Premises or elsewhere.
In
making and executing this Sublease, Subtenant has relied solely on such
investigations, examinations and inspections as Subtenant has chosen to make.
Subtenant acknowledges that Sublandlord has afforded Subtenant the opportunity
for full and complete investigations, examinations and inspections of the Sublet
Premises. Subtenant acknowledges that the Sublet Premises are in good order
and
condition and agrees that there are no representations and warranties except
as
specifically set forth herein, express or implied, by Sublandlord regarding
the
condition of the Sublet Premises or the Building. Notwithstanding the foregoing,
Sublandlord represents that (a) as of the date hereof, to the best of
Sublandlord's current,
actual knowledge, it has received no written notice of violation from any
governmental agency having jurisdiction over the Sublet Premises or the Building
of applicable building codes, regulations, statutes, laws, rules, or ordinances
(collectively, "Laws") including, those Laws relating to Hazardous Materials
(as
defined in the Main Lease) and the Americans with Disabilities Act ("ADA")
and
Title 24 requirements of the State of California, (b) as of the date hereof,
Sublandlord has no current, actual knowledge of the existence or presence of
any
Hazardous Materials in, on, under or about the Sublet Premises or the Building,
and has received no notice of the existence or presence of any Hazardous
Materials in, on, under or about the Sublet Premises or the Building; and (c)
all mechanical, electrical and other systems, including the HVAC systems serving
the Sublet Premises, are in good working order. As used in this Section 12,
Sublandlord's current, actual knowledge means the current, actual knowledge
of
Xxxx Xxxxx, its General Counsel, and Xxxxx vain der Woerd, its facilities
manager, without the benefit of any inquiry or investigation and without the
duty to conduct any inquiry or investigation and without the imputation of
any
knowledge from others. Sublandlord represents and warrants that Xxxx Xxxxx
and
Xxxxx van der Woerd are the individuals that are most likely to be the personnel
of Sublandlord that is most knowledgeable as to the matters on which Sublandlord
is making representations and warranties.
13. Alterations.
Subtenant shall not make any alterations or additions to the Sublet Premises
without first complying fully with all of the requirements and conditions set
forth in Article 8 of the Main Lease.
9
14. Restoration.
If the
Sublet Premises or the Building are damaged by fire or other peril and Master
Landlord is required or elects to and does repair same pursuant to Article
11 of
the Main Lease, Subtenant shall be entitled to a proportionate reduction of
the
Rent payable hereunder while such repairs are being made, based on the extent
to
which the malting of such repairs shall materially interfere with the business
carried on by Subtenant on the Sublet Premises, such reduction in no event
to
exceed the proportional rent abatement actually received by Sublandlord for
the
Sublet Premises during such period. If Master Landlord elects to terminate
the
Main Lease pursuant to Article 11 of the Main Lease, this Sublease shall
terminate simultaneously with termination of the Main Lease, and Subtenant
shall
be entitled to a rent abatement until the date of termination, in no event
to
exceed the proportional rent abatement actually received by Sublandlord under
the Main Lease for the Sublet Premises during such period. This Sublease shall
not terminate by reason of any such damage unless and until the Main Lease
terminates as to the Sublet Premises. Except as provided in the Main Lease,
Sublandlord shall have no obligation to repair any such damage to the Sublet
Premises and, except as provided herein, Subtenant shall not be entitled to
any
compensation or damages from Sublandlord for loss of the use of the whole or
any
part of the Sublet Premises, Subtenant's personal property, or any inconvenience
or annoyance occasioned by such damage, repair, reconstruction or
restoration.
15. Parking.
Subtenant shall have the exclusive right, without charge, to use Subtenant's
Proportionate Share of the 275 parking spaces for the Building during the Term
in connection with Subtenant's occupancy of the Sublet Premises. Subtenant's
Proportionate Share of the parking space shall be 93 parking spaces. Subtenant's
guests and invitees may use parking spaces which are not allocated or reserved
for Sublandlord or other occupants or visitors of the Building on a first-come,
first-served basis.
16. Heating.
Ventilation and Air Conditioning.
Heating,
ventilation and air conditioning ("HVAC") shall be provided to the Sublet
Premises during the hours of Monday through
Friday, from 7:30 A.M. to 6:00 P.M., except for recognized national and local
holidays.
Subtenant acknowledges that Sublandlord contracts for and pays for all utilities
(including without limitation electricity) pursuant to the Main Lease and,
as
such, Subtenant shall pay to Sublandlord the Subtenant's Proportionate Share
of
such costs on a monthly basis unless Subtenant contracts directly from the
utility provider for any such utility services. Upon Subtenant's request,
Sublandlord shall provide, subject to reimbursement from Subtenant at
Sublandlord's actual cost, after-hours HVAC service to the Sublet Premises
on an
hourly basis.
17. Signage.
Subject
to the terms and conditions of the Main Lease, Sublandlord shall cause Master
Landlord or its contractor to install, at Subtenant's cost, monument signage
located adjacent to the main entrance to the Building in a manner which
adequately identifies Subtenant as an occupant of the Building and which is
approved by Subtenant in its reasonable discretion. Such Subtenant signage
rights shall be subject to and shall comply with the City of San Diego's Signage
ordinance and related regulations and the CC&Rs. Subtenant also shall pay
all costs associated with removal of such signage upon the expiration or earlier
termination of this Sublease.
10
18. Furniture,
Fixtures and Equipment.
During
the term of this Sublease, Subtenant may use, without additional charge but
as
additional consideration for entering into this Sublease, certain furniture,
fixtures and equipment ("FF&E") in its "As Is" condition presently located
within the Sublet Premises as described in Exhibit
C attached
hereto. If Exhibit C is not attached hereto as of the Effective Date of this
Sublease, Sublandlord and Subtenant shall agree upon a complete inventory of
the
FF&E within one week following the Commencement Date and include such
inventory in Exhibit C. Upon the Expiration Date or earlier termination of
this
Sublease, Subtenant shall return to Sublandlord the FF&E in its "As Is"
condition as of the Commencement Date, less normal wear and tear.
19. Letter
of Credit.
On or
before the Commencement Date, Sublandlord shall provide to Subtenant an
irrevocable letter of credit in the amount of Fifty Thousand Dollars ($50,000)
in favor of Subtenant (the "Letter of Credit"). If any of Subtenant's rights
under this Sublease are adversely affected by any act or omission of Sublandlord
which causes the Master Landlord
to terminate the Main Lease precluding Subtenant's continued lawful occupancy
of
the
Sublet
Premises at the same rent prior to the Expiration Date, Subtenant may draw
upon
the Letter of Credit to the extent necessary to offset any relocation costs
or
increased rent for the Sublet Premises actually incurred by Subtenant or any
other costs and expenses reasonably incurred by Subtenant arising therefrom
and
from Subtenant being so precluded from lawfully occupying the Sublet Premises
at
the same rent. Notwithstanding the foregoing, Sublandlord shall indemnify,
defend, protect and hold Subtenant harmless from any and all damages, claims,
loss, liability, cost and expense (including, without limitation, court costs
and reasonable attorneys' fees) incurred in connection with or arising from
Sublandlord's breach, or other termination of this Sublease or the Main Lease
except as expressly permitted herein (including any provisions of the Main
Lease
incorporated herein); provided, however, that Subtenant shall have a duty to
take commercially reasonable steps to mitigate any such damages, claims, loss,
liability, cost and expense. Upon the termination or expiration of this Sublease
in a manner not arising from a Sublandlord's act or omission, Sublandlord shall
be entitled to a return of the Letter of Credit so that it can be
cancelled.
20. Compliance
with ADA.
As of
the Possession Date, Sublandlord shall deliver to Subtenant the Sublet Premises
in a condition which complies with all requirements of the federal Americans
with Disabilities Act of 1990, as amended ("ADA"). Throughout the Term of this
Sublease, upon making any additions or alterations to the Sublet Premises,
Subtenant shall cause such additions or alterations to comply with all ADA
requirements.
21. Hazardous
Materials.
Subtenant shall in all respects comply with Section 29.33
of the
Main Lease pertaining to Hazardous Materials and Environmental Laws. The
parties' respective obligations, tights and remedies with respect to the release
or discharge of Hazardous Materials or the violation of any Environmental Laws
shall be governed by Section 29.33 of the Main Lease, as incorporated herein
by
Article 8 of this Lease. The violation of any Environmental Laws by Subtenant
including, but not limited to, the release or discharge of any Hazardous
Materials in violation thereof, shall be a material default by Subtenant under
this Sublease. In addition to or in lieu of the remedies available under this
Sublease as a result of such material default, Sublandlord shall have the right,
without terminating this Sublease, to require Subtenant to suspend its
operations and activities on the Sublet Premises until Sublandlord is satisfied
that appropriate Remedial Work has been or is being adequately performed.
Sublandlord's election of this remedy shall not constitute a waiver of
Sublandlord's tight thereafter to declare a default and pursue other remedies
set forth in this Sublease.
11
22. Assignment and Subletting.
Subtenant shall not, by operation of law, merger, consolidation
or otherwise, assign, sell, mortgage, pledge
or in
any manner transfer this Sublease
or any
interest therein, or sublet the Sublet Premises or any part or puts thereof,
or
grant any concession or license or otherwise permit occupancy of all or any
part
of the Sublet Premises by any person (except for occupancy by Subtenant and
Subtenant's employees in accordance with the terms of this Sublease); provided
however, subject to complying with any requirements contained in the Main Lease,
Subtenant shall be permitted to sublease up to and including 49% of the Net
Square Footage of the Sublet Premises upon obtaining the advance written consent
of Sublandlord, which consent shall not be unreasonably withheld.
23. Right
of First Refusal.
If
Sublandlord receives an acceptable bona fide offer from a third party ("Bona
Fide Offer") desiring to sublease from Sublandlord any portion of the Premises
(as defined in the Main Lease) retained by Sublandlord (the "Retained Premises")
during the Term of this Sublease (the "First Refusal Space"), then Sublandlord
agrees that Subtenant shall have a right of first refusal (the "Right of First
Refusal") to sublet such First Refusal Space on the following terms and
conditions. Sublandlord shall promptly provide Subtenant with a copy of the
Bona
Fide Offer, which shall set forth the anticipated date on which the First
Refusal Space will be available for occupancy by Subtenant and the base rental
applicable to the subletting of such First Refusal Space. Within a period of
five (5) business days after Sublandlord provides to Subtenant a copy of the
Bona Fide Offer, Subtenant may exercise by written notice to Sublandlord its
Right of First Refusal to sublease the First Refusal Space for the balance
of
the Term, commencing on the commencement date set forth in Sublandlord's notice,
on the same terms and conditions as those contained in this Sublease, except
that Base Rent for the First Refusal Space shall be the base rent set forth
in
Sublandlord's notice. If Subtenant fails to provide such written notice within
the five (5) business day period, Sublandlord shall be entitled to enter into
a
sublease with a third party on the same terms and conditions set forth in the
Bona Fide Offer; provided that if Sublandlord and any third pity
are
unable to execute a mutually acceptable sublease within ninety (90) days after
the date on which Subtenant's exercise of the Right of First Refusal was due
(but not delivered), then Subtenant's Right of First Refusal shall be reinstated
as to the First Refusal Space. Upon the timely and irrevocable exercise of
Subtenant's Right of First Refusal, Sublandlord and Subtenant shall enter into
a
written amendment to this Sublease specifying that the First Refusal Space
is
part of the Sublet Premises under this Sublease and containing other appropriate
terms and provisions relating to the subletting of the First Refusal Space
by
Subtenant, including without limitation any increase in Base Rent and
Subtenant's Proportionate Share of Direct Expenses. Subtenant acknowledges
and
understands that its rights hereunder are subject to the rights of Master
Landlord under the Main Lease.
24. Consents
and Approvals.
Where
Sublandlord's consent or approval is required under this Sublease, Sublandlord's
refusal to consent to or approve any matter or thing shall be deemed reasonable
and in good faith if Master Landlord's consent or approval is also required
and
such consent or approval has not been obtained from Master Landlord; provided,
however, Sublandlord covenants to use reasonable efforts, at the sole cost
and
expense of Subtenant (including,
without limitation, reasonable attorneys' fees and expenses), to obtain the
consent or
approval
of Master Landlord and will indicate to Master Landlord in those cases where
its
approval is conditioned upon Master Landlord's approval that it has no objection
thereto and agrees that if such consent of Master Landlord shall not be
required, Sublandlord shall not unreasonably withhold or delay its consent
to
such matter. If Subtenant seeks the approval by or consent of Sublandlord,
and
Sublandlord fails or refuses to give such consent or approval without committing
any violation or breach of this Sublease, Subtenant shall not be entitled to
any
damages from Sublandlord for any withholding or delay of such approval or
consent.
12
25. Reciprocal
Indemnification.
Based on
the common occupancy of the Building by Sublandlord and Subtenant, the parties
indemnity obligations shall be subject to a comparative negligence standard,
such that (1) Subtenant shall indemnify, defend and hold harmless Sublandlord
from and against all losses, costs, damages, expenses and liabilities,
including, without limitation, reasonable attorneys' fees, to the extent
Sublandlord may incur or pay such losses, costs, damages, expenses and
liabilities by reason of. (a) Subtenant's use, occupancy or management of the
Sublet Premises; (b) any accidents, damages or injuries to persons or property
occurring in, on or about the Sublet Premises and caused by Subtenant; (c)
any
breach or default hereunder by Subtenant; (d) any work done by Subtenant in
or
to the Sublet Premises; or (e) any act, omission or negligence occurring in,
on
or about the Sublet Premises on the part of Subtenant and/or its officers,
employees, agents, customers, invitees or any person claiming through or under
Subtenant, and (2) Sublandlord shall indemnify, defend and hold harmless
Subtenant from and against all losses, costs, damages, expenses and liabilities,
including, without limitation, reasonable attorneys' fees, to the extent
Subtenant may incur or pay such losses, costs, damages, expenses and liabilities
by reason of (i) Sublandlord's use, occupancy, or management of the Original
Premises; (ii) any accidents, damages or injuries to persons or property
occurring in, on or about the Retained Premises; (iii) any breach or default
hereunder or under the Main Lease by Sublandlord; (iv) any work done by or
on
behalf of Sublandlord in the Original Premises; or (v) any act, omission or
negligence occurring in, on or about the Retained Premises on the part of
Sublandlord and/or its officers, employees, agents, customers, invitees or
any
person claiming through or under Sublandlord.
26. Notice.
All
notices, consents, approvals, demands and requests which are required
or desired to be given by either party to the other hereunder shall be in
writing and shall be
personally delivered, sent by telefax or by reputable overnight courier delivery
service or sent
by
United States registered or certified mail and deposited in a United States
post
office, return receipt requested and postage prepaid. Notices, consents,
approvals, demands and requests which are served upon Sublandlord or Subtenant
in the manner provided herein shall be deemed to have been given or served
for
all purposes hereunder on the day personally delivered or refused, the next
business day after sending by overnight courier as aforesaid or on the third
business day after mailing as aforesaid. All notices, consents, approvals,
demands, and requests given to Sublandlord or Subtenant shall be addressed
as
follows:
|
If
to Sublandlord, to:
|
Anacomp,
Inc.
|
|
|
00000
Xxxxxx xx Xxxxxxx
Xxx Xxxxx, XX 00000
|
||
|
Attn:
Corporate Real Estate
Facsimile:
000-000-0000
|
13
|
with
a copy to:
|
Anacomp,
Inc.
00000
Xxxxxx xx Xxxxxxx
Xxx
Xxxxx, XX 00000
Attn:
Legal Department
Facsimile:
000-000-0000
|
|
|
If
to Subtenant, to:
|
American
Technology Corporation
00000
Xxxxxx xx Xxxxxxx, Xxxxx ___
Xxx
Xxxxx, XX 00000
Attn:
Xxxxxxx X. Xxxxxxx
Facsimile:
000-000-0000
|
or
to
such other address as such party may indicate by a notice given to the other
party in accordance with this Section 26. If Subtenant's suite number is not
known as of the date of this Sublease, Subtenant will provide such information
to Sublandlord in writing promptly after it becomes known to
Subtenant.
27. Termination
of Main Lease.
If for
any reason the term of the Main Lease shall terminate prior to the Expiration
Date, Sublandlord shall not be liable to Subtenant by reason thereof unless
both
(a) Subtenant shall not then be in default hereunder, and (b) such termination
shall
have been effected because of the breach or default of Sublandlord as tenant
under the Main
Lease or
this Sublease.
28. Insurance.
Subtenant shall provide and maintain throughout the tern of this Sublease a
policy or policies of comprehensive public liability insurance in standard
form
naming Sublandlord and Master Landlord as additional insureds and otherwise
complying with the Main Lease. Reasonable satisfactory evidence of such
insurance shall be delivered to Sublandlord by Subtenant upon request. Subtenant
shall procure and pay for renewals or replacements of such insurance from time
to time before the expiration thereof, and Subtenant shall deliver to
Sublandlord such renewal or replacement policy or binder or other reasonably
satisfactory evidence of such insurance at least 30 days before the expiration
of any existing policy. All such policies shall be issued by companies licensed
to do business in the state where the Sublet Premises is located, and contain
a
provision whereby the same cannot be canceled or modified unless Sublandlord
is
given at least 30 days' prior written notice by certified or registered mail
of
such cancellation or modification.
29. Right
to Cure.
29.1 Right
to Cure Subtenant's Defaults and Damages.
If
Subtenant shall at any time fail to make any payment or perform any other
obligation of Subtenant hereunder within the applicable cure period, if any,
then Sublandlord shall have the right, but not the obligation,
after five days' notice to Subtenant, or without notice to Subtenant in the
case
of any
emergency, and without waiving or releasing Subtenant from any obligations
of
Subtenant hereunder,
to make such payment or perform such other obligation of Subtenant in such
manner and
to
such extent as Sublandlord shall deem necessary, and in exercising any such
right, to pay
any
incidental costs and expenses, employ attorneys, and incur and pay reasonable
attorneys' fees. Subtenant shall pay to Sublandlord within twenty (20) days
after Subtenant's receipt of invoices
therefor all sums so paid by Sublandlord and all incidental costs and expenses
of Sublandlord
in connection therewith, together with interest thereon at the rate of 10%
on
an annualized
basis or the then maximum rate of interest which may lawfully be collected
from
Subtenant, whichever shall be less, from the date of the making of such
expenditures.
14
29.2 Right
to Cure Sublandlord's Defaults and Damages.
If
Sublandlord shall at any time fail to make any payment or perform any other
obligation of Sublandlord under the Main Lease within the applicable cure
period, if any, then Sublandlord shall have the right, but not
the
obligation, after five days' notice to Sublandlord, or without notice to
Sublandlord in the
case of
any emergency, and without waiving or releasing Sublandlord from any obligations
of Sublandlord hereunder, to make such payment or perform such other obligation
of Sublandlord in such manner and to such extent as Master Landlord shall deem
necessary, and in exercising any such right, to pay any incidental costs and
expenses, employ attorneys, and incur and pay reasonable attorneys' fees.
Sublandlord shall pay to Subtenant within twenty (20) days after Sublandlord's
receipt of invoices therefor all sums so paid by Subtenant and all incidental
costs and expenses of Subtenant in connection therewith, together with interest
thereon at the rate of 10% on an annualized basis or the then maximum rate
of
interest which may lawfully be collected from Sublandlord, whichever shall
be
less, from the date of the making of such expenditures.
30. Remedies
of Sublandlord.
30.1 "Default"
shall mean a material default by Subtenant under any provision of this Sublease
which default has not been cured within any applicable grace or cure period
(as
such grace and cure periods are set forth in Section 19.1 of the Main Lease,
as
incorporated herein by Article 8).
30.2 If
a
Default occurs, Sublandlord shall have, in addition to all its rights and
remedies contained in the Incorporated Provisions, the following rights and
remedies, all of which are distinct, separate and cumulative, and none of which
will exclude any other right or remedy allowed by law:
(a) Sublandlord
may, with or without notice of such election and with or without entry or other
action by Sublandlord, immediately terminate this Sublease, in which event
the
Term of this Sublease shall end and all right, title, and interest of Subtenant
hereunder shall expire; or
(b) Sublandlord
may enforce the provisions of this Sublease and may enforce and protect the
rights of Sublandlord hereunder by a suit or suits in equity or at law for
the
specific performance of any covenant or agreement herein or for the enforcement
of any other appropriate legal or equitable remedy, including the recovery
of
all moneys due or to become due under any of the provisions of this
Sublease.
30.3 Subtenant
will pay upon demand all of Sublandlord's costs, charges, and expenses,
including reasonable attorneys' fees, and fees and expenses of agents and others
retained by Sublandlord in any litigation, negotiation or transaction in which
Sublandlord seeks to enforce the terms or provisions of this
Sublease.
15
31. Dual
Broker.
The
parties each acknowledge the following: (i) CB Xxxxxxx Xxxxx, Inc. ("Broker")
has represented both Sublandlord and Subtenant in connection with this Sublease;
(ii) they were timely advised of such dual representation by the Broker, they
consent to such dual representation, and they do not expect Broker to disclose
to either of them confidential information of the other party; and (iii) no
person or entity other than Broker had any part, or was instrumental in any
way,
in bringing about this Sublease. Sublandlord agrees to pay to Broker a brokerage
commission equal to four percent (4%) of the Rent received by Sublandlord during
the first sixty (60) months of the Tern and two percent (2%) of the Rent
received by Sublandlord during the remaining balance of the Term. Such brokerage
commission shall be paid in two installments: (i) fifty percent (50%) upon
execution of this Sublease by Sublandlord and Subtenant and the Consent to
Sublease by Master Landlord; and (ii) fifty percent (50%) upon the Commencement
Date. Sublandlord and Subtenant each hereby represents and warrants to the
other
that it has not incurred any liability for a commission or fee to any real
estate broker or agent in connection with this Sublease, other than Broker,
whose commission will be paid by Sublandlord in accordance with the terms above.
Each party agrees to protect, defend, indemnify and hold the other harmless
from
and against any and all claims for commissions, finders fees or similar
compensation resulting from the actions of the indemnifying party that are
inconsistent with the foregoing representations and warranties for any
brokerage, finder's or similar fee or commission in connection with this
Sublease, if such claims are based on or relate to any act of the indemnifying
party which is contrary to the foregoing representations and
warranties.
32. No
Waiver. The
failure of Sublandlord or Subtenant to insist in any one or more cases upon
the
strict performance or observance of any obligation of the other hereunder or
to
exercise any right
or
option contained herein shall not be construed as a waiver or relinquishment
for
the future of any such obligation of or any right or option. Sublandlord's
receipt and acceptance of Rent, or Sublandlord's acceptance of performance
of
any other obligation by Subtenant, with knowledge
of
Subtenant's breach of any provision of this Sublease, shall not be deemed a
waiver of such breach. No waiver by Sublandlord of any term, covenant or
condition of this Sublease shall be deemed to have been made unless expressed
in
writing and signed by Sublandlord.
33. Incorporation.
All of
the Recitals set forth above, and all of the exhibits attached hereto, are
hereby incorporated by reference into this Sublease.
34. Complete
Agreement.
There
are no representations, agreements, arrangements or understandings, oral or
written, between the parties relating to the subject matter of this Sublease
which are not fully expressed in this Sublease. This Sublease cannot be changed
or terminated orally or in any other manner other than by a written agreement
executed by both parties.
35. Successors
and Assigns.
The
provisions of this Sublease, except as herein otherwise specifically provided,
shall extend to, bind and inure to the benefit of the parties hereto and their
respective personal representatives, heirs, successors and permitted
assigns.
36. Interpretation.
Irrespective of the place of execution or performance, this Sublease
shall be governed by and construed in accordance with the laws of the state
where the
Sublet
Premises is located. If any provision of this Sublease or the application
thereof to any person
or
circumstance shall, for any reason and to any extent, be invalid or
unenforceable, the remainder
of this Sublease and the application of that provision to other persons or
circumstances
shall
not be affected but rather shall be enforced to the extent permitted by law.
This Sublease shall
be
construed without regard to any presumption or other vile requiring construction
against
the
party causing this Sublease to be drafted.
16
37. Holding
Over.
Subtenant shall pay Sublandlord a sum for each day that Subtenant retains
possession of the Sublet Premises or any part thereof after termination of
this
Sublease, by lapse of time or otherwise, equal to 200% of the Base Rent that
Subtenant is otherwise
obligated to pay under this Sublease at the time of such termination (i.e.,
the
same rate
payable
by Sublandlord to Master Landlord under Article 16 of the Main
Lease).
38. Counterparts.
This
Sublease may be executed in two or more counterparts, each of which shall be
deemed an original but all of which together shall constitute but one and the
same instrument.
39. Default
by Sublandlord.
Sublandlord shall be in default of this Sublease (a "Sublandlord
Default")
if it
shall fail to perform any duty or obligation imposed upon it under the Main
Lease, and Sublandlord fails to cure such default during such time periods
provided for by
Master
Landlord; if Sublandlord shall be in default under Section 19.1.3 of the Main
Lease; or
if
Sublandlord shall fail to perform any duty or obligation imposed upon it by
this
Sublease, and such failure shall continue for a period of thirty (30) days
after
written notice thereof from Subtenant (provided, however. that if any such
action is reasonably likely to result in any interference with Subtenant's
rights under this Sublease, then such thirty (30) day period shall not be
applicable and Subtenant may immediately take any action necessary to protect
its rights hereunder, including, but not limited to, drawing amounts available
under the Letter of Credit); provided, however, that if the event for which
the
notice is given is of a nature that may not reasonably be performed within
said
thirty (30) day period, Sublandlord shall not be in default for so long as
Sublandlord commences its performance within said thirty day period and
diligently pursues it to conclusion. Upon the occurrence of a Sublandlord
Default under this Sublease or the Main Lease, Subtenant may exercise all rights
or remedies Subtenant may have for such default at law or in equity, including
the termination of this Sublease upon no less than five (5) additional business
days notice thereof to Sublandlord. Any costs and expenses incurred by Subtenant
to cure such Sublandlord Default shall be reimbursed by Sublandlord within
ten
(10) business days after written demand. If Sublandlord is in default of this
Sublease after written notice and expiration of a reasonable time period,
Subtenant may perform for Sublandlord and submit written demand for repayment
to
Sublandlord. Sublandlord shall reimburse Subtenant for its reasonable
out-of-pocket expenses within ten (10) business days from receipt of
invoice.
40. Quiet
Enjoyment.
Subject
to the provisions of this Sublease, Sublandlord covenants
that so long as Subtenant is not in default in the performance of its covenants
and
agreements under this Sublease beyond all applicable cure periods, Subtenant's
quiet and peaceable enjoyment of the Sublet Premises shall not be disturbed
or
interfered with by Sublandlord or any person claiming by, through or under
Sublandlord.
17
41. Mailing
Address.
As soon
as reasonably possible after the Commencement Date, Subtenant shall obtain
a
separate mailing address for the Sublet Premises, without affecting or changing
the current mailing address for the Retained Premises.
IN
WITNESS WHEREOF, Sublandlord and Subtenant have executed this Sublease as
of
the day
and year first above written.
|
SUBLANDLORD:
|
SUBTENANT:
|
|
|
ANACOMP,
INC., an Indiana corporation
|
AMERICAN
TECHNOLOGY CORPORATION
a
Delaware corporation
|
|
|
By:
/s/ Xxxx Xxxxx
|
By:
/s/ Xxxx Xxxxxx-Xxxx
|
|
|
Print
Name: Xxxx Xxxxx
|
Print
Name: Xxxx Xxxxxx-Xxxx
|
|
|
Title:
EVP
|
Title:
VP, Operations
|
|
|
By:
|
By:
/s/ Xxxx X. Xxxxxx
|
|
|
Print
Name:
|
Print
Name: Xxxx X. Xxxxxx
|
|
|
Title:
|
Title:
President
|
18
CONSENT
TO SUBLEASE
[To
be
attached using Xxxxxx form of consent]
19
EXHIBIT
A
Description
of Sublet Premises
20
EXHIBIT
B
Copy
of the Main Lease
[See
Attached]
21
EXHIBIT
C
Inventory
of Furniture. Fixtures and Equipment in Sublet Premises
|
Quantity
|
Description
of Personal Property
|
|
19
|
9x12
cubes each with 1 ea 2 drawer file and 1 ea 3 drawer
file
|
|
I
|
conference
room table with 11 chairs
|
|
3
|
desks
|
|
4
|
desks
w/returns
|
|
3
|
credenzas
|
22
EXHIBIT
D
Lobby
Improvements
(attached
hereto)
23
24
25
26
