Exhibit 10.21
SUBLEASE
THIS SUBLEASE ("Sublease"), dated September 1, 1999, for reference purposes
only, is entered into by and between Virtual Integration Technology, a
California corporation ("Sublandlord"), and Preview Systems, Inc., a Delaware
corporation ("Subtenant").
RECITALS
A. Sublandlord leases certain premises consisting of approximately 3,476
square feet of rentable area commonly known as Suite 250 (the "Premises") in the
building commonly known as 00000 Xxxxxxx Xxxxx Xxxxxxxxx in Cupertino,
California (the "Building"), pursuant to that certain Office Lease Agreement
(the "Master Lease") between Sublandlord, as tenant, and WDT-Cupertino; as
landlord ("Landlord"), dated July 24, 1998. Capitalized terms herein not
otherwise defined herein shall have the same meanings as provided in the Master
Lease.
B. Sublandlord desires to sublease the Premises to Subtenant, and
Subtenant desires to sublease the Premises from Sublandlord, upon the terms and
conditions provided for herein.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
contained herein, Sublandlord and Subtenant covenant and agree as follows:
AGREEMENT
1. Premises. Sublandlord hereby leases the Premises to Subtenant, and
Subtenant hereby leases the Premises from Sublandlord upon and subject to the
terms and conditions set forth herein, together with the non-exclusive use of
the unallocated parking spaces leased to Sublandlord pursuant to the Master
Lease.
Term.
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. The term of this Lease shall commence on the date (the "Commencement
Date") which is the later of (i) September 15, 1999, and (ii) the date on which
consent to this Sublease is given by the Landlord.
Notwithstanding Paragraph 2(a) above, if for any reason Sublandlord cannot
deliver possession of the Premises to Subtenant on the Commencement Date,
Sublandlord shall not be subject to any liability therefor, nor shall such
failure affect the validity of this Sublease or the obligations of Subtenant
hereunder (except as hereinafter provided) or extend the term hereof, but in
such case Subtenant shall not be obligated to pay Rent until possession of the
Premises is tendered to Subtenant. Notwithstanding the foregoing, if, as a
result of any act or omission of Sublandlord (and not as the result of any delay
on the part of Subtenant), Sublandlord is
unable to deliver possession of the Premises on or before October 15, 1999,
Subtenant shall have the right to terminate this Sublease by delivering written
notice thereof to Sublandlord within ten (10) days of such date. Unless
exercised prior thereto, Subtenant's right of termination hereunder shall expire
upon the earlier of (i) delivery of the Premises to Subtenant and (ii) the
expiration of such ten (10) day period.
The term of this Sublease shall end on March 15, 2000; provided,
however, that, subject to Paragraph 10 of this Sublease, the term of this
Sublease shall terminate earlier in the event of the earlier termination of the
Master Lease for any cause whatsoever.
Rent. The rent payable by Subtenant for the Premises shall consist of
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basic rental ("Basic Rent") plus certain additional rental ("Additional Rent"),
all as provided below. Basic Rent, Additional Rent, and any other charges due
under this Sublease are hereinafter referred to collectively as "Rent."
Subtenant shall pay to Sublandlord in advance, on or before the first
day of each month of the term of this Sublease and without deduction or offset,
monthly Basic Rent in the amount of $11,470.80 per month;
Subtenant also shall pay, as Additional Rent, the proportionate share
of the increase rental adjustments as defined in Section 3 (C) ("Operating
Expenses") of the Master Lease beginning in January, 2000. The Operating
Expenses are subject to reconciliation and adjustment as provided in the Master
Lease.
To the extent that Additional Rent due under the Master Lease is
payable on a monthly basis pursuant to the Master Lease, such Additional Rent
shall be paid to Sublandlord as and when Basic Rent is paid. To the extent that
Additional Rent is billed from time to time to Sublandlord by Landlord, such
Additional Rent shall be paid by Subtenant to Sublandlord within seven (7) days
after Subtenant's receipt of an invoice therefor. All Rent shall be paid to
Sublandlord at the address specified for Sublandlord below, or to such other
person or to such other place as Sublandlord may from time to time designate in
writing. To the extent that Additional Rent is payable on an estimated basis
pursuant to the Master Lease, the Additional Rent due hereunder shall be
adjusted between the parties (with appropriate reimbursements or additional
payments) within twenty (20) days after the actual Additional Rent due under the
Master Lease has been determined and notice thereof has been delivered to
Subtenant.
Sublandlord shall pay all fixed rent, additional rent and other
monetary amounts required to be paid under the Master Lease (collectively,
"Underlying Rent") on or before such amounts become due and payable thereunder.
If Sublandlord fails to make any payment of Underlying Rent as and when required
under the Master Lease, Subtenant shall have the right, but not the obligation,
to make such payments on behalf of Sublandlord, in which event Subtenant shall
have the right to offset any amounts so paid against Rent payable under this
Sublease.
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In the event of any casualty or condemnation affecting the Premises,
Rent payable by Subtenant shall be proportionately abated, but only as to the
portion of the Premises damaged or taken; and only to the extent that Underlying
Rent payable under the Master Lease is abated. Subtenant shall have no right to
terminate the Sublease in connection with any casualty or condemnation except to
the extent that the Master Lease is also terminated as to the Premises or any
portion thereof.
Securtity Deposit Subtenant shall deposit with Sublessor upon the
execution hereof the sum of Twenty Two Thousand Nine Hundred Forty One and
60/100 Dollars ($22,941.60) as security for Subtenant's faithful performance of
Subtenant's obligations hereunder. If Subtenant fails to pay rent or other
charges due hereunder, or otherwise defaults with respect to any provision of
this Sublease, Sublessor may use, apply or retain all or any portion of said
deposit for the payment of any rent or other charge in default or for the
payment of any other sum to which Sublessor may become obligated by reason of
Subtenant's default, or to compensate Sublessor for any loss or damage which
Sublessor may suffer thereby. If Sublessor so uses or applies all or any
portion of said deposit, Subtenant shall within fifteen (15) days after written
demand therefor deposit cash with Sublessor in an amount sufficient to restore
said deposit to the full amount herein above stated and Subtenant's failure to
do so shall be a breach of this Sublease, and Sublessor may at his option
terminate this Sublease. Sublessor shall not be required to keep said deposit
separate from its general accounts.
Said deposit or so much thereof as had not theretofore been applied by Sublessor
shall be returned without payment of interest for its use, to Subtenant within
ten (10) days after the expiration of the term hereof (or earlier termination of
the Sublease if Subtenant does not have any remaining contractual obligations to
Sublessor), or after Subtenant has vacated the Premises, whichever is later
provided that the Premises and cubicle furniture systems are returned in the
same condition as of the Commencement Date, normal wear and tear excepted.
As-Is. Except as otherwise expressly provided herein, Sublandlord
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subleases the Premises to Subtenant strictly in their present "as-is" and "with
all faults" condition, including the existing cubicle systems, and Subtenant by
acceptance of possession of the Premises, acknowledges the same to be in good
order and repair and in a tenantable condition. To Sublandlord's actual
knowledge (but without duty of inquiry), as of the date of this Sublease, the
structural components of the Building and all building systems (including the
HVAC equipment) serving the Premises are in good condition and repair.
Master Lease. This Sublease shall be subject and subordinate to all
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of the terms, covenants and conditions of the Master Lease, and Landlord shall
have all rights in respect of the Master Lease and the Premises as set forth
therein. Except for payments and rent under Section 3 (A) of the Master Lease
(which payments shall be made by Sublandlord), and, except as otherwise provided
in Paragraph 6 hereof, Subtenant hereby
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assumes and agrees to perform for Sublandlord's benefit, during the term of this
Sublease, all of Sublandlord's obligations under the Master Lease (the "Assumed
Obligations"), which accrue during the term of this Sublease.
Incorporation of Master Lease. Subject to the exclusions, limitations
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and modifications set forth in this Sublease, the terms, covenants and
conditions of the Master Lease are incorporated in this Sublease by reference so
that, except to the extent that they are excluded, limited or otherwise modified
by the provisions of this Sublease for the purpose of incorporation by
reference, each and every term, covenant and condition of the Master Lease
binding or inuring to the benefit of the Landlord thereunder shall, in respect
of this Sublease, bind or inure to the benefit of Sublandlord, and each and
every term, covenant and condition of the Master Lease 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 such
terms, covenants and conditions were 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 Master Lease, were construed to mean, respectively,
"Sublandlord" and "Subtenant" in this Sublease, and as if the word "Lease," or
words of similar import, wherever the same appear in the Master Lease, were
construed to mean this "Sublease." Subtenant represents that it has examined,
read and is thoroughly familiar with the terms, covenants and conditions of the
Master Lease, and accepts those terms, covenants and conditions and obligations
thereof which have been incorporated herein.
The following sections of the Master Lease are not incorporated as a
part of this Sublease and are expressly excluded herefrom (except insofar as the
same may be referenced elsewhere in this Sublease for purposes of identification
or definition of certain matters): Section 1 (Commencement and Termination); 2
(Occupancy of Premises); 22 (Assignment and Subletting
The following limitations shall apply to the interpretation and
enforcement of the incorporated terms, covenants and conditions of the Master
Lease:
The time limits contained in the Master 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 (2) business
days, so that in each instance Subtenant shall have two (2) business days less
time to observe or perform hereunder than Sublandlord has as the Tenant under
the Master Lease.
Any non-liability, release, indemnity or hold harmless
provision, and any provisions pertaining to waiver of subrogation rights and or
the naming of a party under an insurance policy, in the Master Lease for the
benefit of the Landlord which is incorporated herein by reference, shall be
deemed to inure to the benefit of Sublandlord and Landlord, for the purpose of
incorporation by reference in this Sublease.
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Any right of the Landlord for access or inspection and any
right of the Landlord under the Master Lease to do work in the Premises or in
the Building or in the Common Area, and any right of the Landlord in respect of
rules and regulations, shall be deemed to inure to the benefit of Sublandlord
and the Landlord, for the purpose of incorporation by reference in this
Sublease.
If any of the express provisions of this Sublease shall
conflict with any of the provisions incorporated by reference, such conflict
shall be resolved in every instance in favor of the express provisions of this
Sublease. If any incorporated provision of the Master Lease cross-references a
provision of the Master Lease which is not incorporated in this Sublease, such
cross-referenced Master Lease provision shall be disregarded except to the
extent required for a fair and equitable interpretation of the incorporated
Master Lease provision.
Any obligation of Sublandlord which is contained in this
Sublease by the incorporation by reference of the provisions of the Master Lease
shall be observed or performed by Sublandlord using reasonable good faith
efforts to cause the Landlord under the Master Lease to observe and/or perform
the same, and Sublandlord shall have a reasonable time do so after written
notice from Subtenant specifying with reasonable particularity the deficiency in
Landlord's performance under the Master Lease. Sublandlord shall not be required
to furnish, supply, install, maintain or repair anything under any provision of
the Master Lease. Subtenant shall not in any event have any rights in respect of
the Premises greater than Sublandlord's rights under the Master Lease, and
notwithstanding any provision to the contrary, as to obligations that pertain to
the Premises and Common Area, and are part of this Sublease by the incorporation
by reference of provisions of the Master Lease, Sublandlord shall not be
required to make any payment or to perform any obligation, and Sublandlord shall
have no liability to Subtenant for any matter whatsoever, except for
Sublandlord's obligation to pay the Underlying Rent and to use reasonable good
faith efforts, upon request of Subtenant, to cause the Landlord to observe
and/or perform Landlord's obligations under the Master Lease. Sublandlord shall
not be responsible for any failure or interruption, for any reason whatsoever,
of the services or facilities that may be appurtenant to or supplied at the
Building by Landlord. Subtenant hereby expressly waives the provisions of any
statute, ordinance or judicial decision which would give Subtenant rights to
make repairs at the expense of Sublandlord.
With respect to any approval or consent required to be
obtained from Landlord under the Master Lease, such approval or consent must be
obtained from both Landlord and Sublandlord. Any approval or consent required of
Sublandlord conclusively shall be deemed reasonably withheld if approval or
consent also is required of the Landlord, and Landlord withholds Landlord's
approval or consent.
Subtenant shall fully perform all of the Assumed Obligations
and shall indemnify, defend, protect, and hold harmless Sublandlord from any and
all
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liability, damages, liabilities, claims proceedings, actions, demands and costs
(including reasonable attorneys' fees) resulting, directly or indirectly, from
Subtenant's failure to perform the Assumed Obligations.
Without limiting the generality of the foregoing, for
purposes of incorporating the terms, covenants and conditions of the Master
Lease into this Sublease, the following provisions of the Master Lease are
amended as follows:
Under Par 3 of the Master Lease, Sublandlord shall be
entitled to rely on any statement or estimate from Landlord regarding the
calculation and payment of Additional Rent and shall be under no duty to verify
the same.
Under Par 3 (C), Par 4 and Par 18 of the Master Lease,
Sublandlord shall only be required, after written request by Subtenant, to use
reasonable good faith efforts to cause Landlord to maintain the insurance
required of Landlord.
Under Par 11 and Par 19 of the Master Lease,
Sublandlord shall only be required, after written request by Subtenant, to use
reasonable good faith efforts to cause Landlord to perform the maintenance and
repair obligations thereunder.
Under Par 14 of the Master Lease, Sublandlord shall
only be required, after written request by Subtenant, to use reasonable good
faith efforts to cause Landlord to furnish the utilities and services called for
thereunder.
Under Par 22 of the Master Lease, all profit or
additional consideration from any assignment or sublease shall be paid to
Sublandlord.
Under Par 11 of the Master Lease, upon surrender of the
Premises at the expiration or earlier termination of this Sublease, Subtenant
shall return the Premises to Sublandlord in the same condition as existed upon
delivery of the Premises to Subtenant, prior to the construction of any
alterations or improvements as may be made by Subtenant; provided, however, that
Subtenant shall not be required to remove such any alterations or improvements
if Landlord shall agree in writing to waive its right to require Sublandlord to
remove such any alterations or improvements upon surrender of the Premises to
Landlord.
Under Par 3 (G) and Par 5 of the Master Lease,
Sublandlord's notice address shall be as provided adjacent to Sublandlord's
signature below, or at such other address as Sublandlord may from time to time
designate in writing; and Subtenant's notice address shall be as provided
adjacent to Subtenant's signature below, provided that after Subtenant takes
occupancy of
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the Premises, notices shall be sent to Subtenant at the address of the Premises.
Any notice required or permitted under this Sublease shall be deemed to have
been delivered upon actual receipt or upon refusal of delivery. Notices under
this Sublease shall be permitted to be transmitted by overnight courier service
or by facsimile, in addition to the other methods permitted under the Master
Lease. Notices sent by facsimile shall be followed by a mailed copy to the
recipient's notice address and shall be effective (a) on the date received if
transmission is made on a business day and received before 5:00 p.m. that same
day, or (b) in all other cases, on the business day next following receipt of
the facsimile transmission.
Assignment and Subletting. Subtenant shall not assign this Sublease
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or sublet all or any part of the Premises, or hypothecate or otherwise encumber
its interest under this Sublease, or allow any other person or entity to use or
occupy all or any part of the Premises, any and all of which are expressly
prohibited and void. Notwithstanding the foregoing, Subtenant shall have the
right to assign or sublet any part or all of the Premises to an entity directly
controlling, controlled by, or under common control with, Subtenant, provided
that prior thereto Landlord has granted its unconditional consent to such
assignment or sublease in writing.
Brokerage. Each party warrants and represents to the other that such
party has not retained the services of any real estate broker, finder or any
other person whose services would form the basis for any claim for any
commission or fee in connection with this Sublease or the transactions
contemplated hereby other than The Staubach Company. Each party agrees to save,
defend, indemnify and hold the other party free and harmless from any breach of
its warranty and representation as set forth in the preceding sentence,
including the other party's attorneys' fees.
Sublandlord's Obligations. Except as expressly otherwise provided
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herein, Sublandlord shall have no obligations to Subtenant with respect to the
Premises or the performance by Landlord of any obligations of Landlord under the
Master Lease.
Early Termination of Master Lease. If, without the fault of
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Sublandlord hereunder the Master Lease should terminate prior to the expiration
of this Sublease, Sublandlord shall have no liability to Subtenant. To the
extent that the Master Lease grants Sublandlord any discretionary right to
terminate the Master Lease, whether due to casualty, condemnation, or otherwise,
Sublandlord shall be entitled to exercise or not exercise such right in its sole
and absolute discretion.
Consent of Landlord. If Sublease desires to take any action which
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requires the consent of Landlord pursuant to the terms of the Master Lease,
including, without limitation, the making of any alterations, then,
notwithstanding anything to the contrary herein, (a) Sublandlord, independently,
shall have the same rights of approval or disapproval as Landlord has under the
Master Lease, (b) Subtenant shall not take any such action until it obtains the
consent of both Sublandlord (whose consent shall not be unreasonably withheld)
and Landlord, and (c) Subtenant shall request that Sublandlord
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obtain Landlord's consent on Subtenant's behalf and Sublandlord shall use
commercially reasonable efforts to obtain such consent, unless Sublandlord and
Landlord agree that Subtenant may contact Landlord directly with respect to the
specific action for which Landlord's consent is required.
No Third Party Rights. Except as otherwise expressly provided herein,
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the benefit of the provisions of this Sublease is limited to Sublandlord and
Subtenant and (subject to Paragraph 7 hereof) to their successors and assigns.
No third party shall be construed to have any rights as a third party
beneficiary with respect to any of the provisions of this Sublease; provided,
however, that Landlord shall be entitled to the benefit of (a) Subtenant's
assumption of the Assumed Obligations pursuant to Paragraph 5 above, (b)
Subtenant's indemnities under this Sublease and (c) Subtenant's waivers and
covenants to hold harmless under this Sublease.
Landlord Consent. This Sublease is subject to the consent of the
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Landlord. Sublandlord agrees to use commercially reasonable efforts to obtain
the consent of Landlord to this Sublease as soon as reasonably possible
following execution of this Sublease by Subtenant and Sublandlord, and shall
provide Subtenant with notice of Sublandlord's submittal of this Sublease to
Landlord for approval. In the event that Landlord's consent is not obtained
within five (5) days following the submittal of this Sublease by Sublandlord to
Landlord for consent, each of Sublandlord and Subtenant shall have the right to
terminate this Sublease by providing written notice of termination to the other
party within five (5) days after the expiration of such five (5) day period.
Unless exercised prior thereto, this right of termination hereunder shall expire
upon the delivery to Subtenant of Landlord's consent. For purposes of this
paragraph, Landlord's consent shall be deemed to have been given as of the date
when Landlord's unconditional consent to this Sublease has been obtained, or, in
the event such consent is conditional, the date upon which such conditions have
been fully satisfied or waived by Landlord.
Counterparts. This Sublease may be executed in any number of
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counterparts, each of which counterparts shall be deemed to be an original, and
all of which together shall constitute one and the same instrument.
Status of Lease. Sublandlord hereby represents and warrants to
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Subtenant that (i) the Lease attached hereto as Exhibit A has been executed and
delivered by Master Landlord and Sublandlord and constitutes the entire
agreement of the parties thereto relating to the lease of the Premises, (ii) no
default or breach by Sublandlord or, to the best of Sublandlord's knowledge, by
Landlord, exists under the Lease, (iii) no event has occurred that, with the
passage of time, the giving of notice, or both, would constitute a default or
breach by Sublandlord or, to the best of Sublandlord's knowledge, by Landlord
under the Lease, and (iv) subject to receipt of Landlord's written consent
hereto, Sublandlord has the right and power to execute and deliver this Sublease
and to perform its obligations hereunder. Sublandlord shall not modify the
Master Lease in such a manner as to materially increase the obligations of
Subtenant hereunder or under the
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Master Lease, without the prior written consent of Subtenant, which shall not be
unreasonably withheld or delayed.
Execution of Sublease. In the event that Subtenant shall not execute
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this Sublease on or before October 1, 1999, Sublandlord shall thereafter have
the right, or its sole and absolute discretion, to negotiate a sublease for the
Premises with any party other than Subtenant, as Subtenant, on the any terms and
conditions as it sees fit, or to modify any terms and conditions of this
Sublease prior to execution by Subtenant.
IN WITNESS WHEREOF, the parties have executed this Sublease as of the date
first written above.
SUBTENANT:
PREVIEW SYSTEMS, INC.
a Delaware corporation
By: /s/ Xxxx Xxxxx
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Title: Chief Financial Officer
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Date:
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SUBLANDLORD:
VIRTUAL INTEGRATION TECHNOLOGY
a California corporation
By: /s/ illegible
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Title:___________________________
Date:____________________________
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