CONSENT TO SUBLEASE
THIS CONSENT TO SUBLEASE ("Agreement") is entered into as of the 6th
day of June, 2002, among (a) POINTE CAMINO XXXXXXX, LLC, a California limited
liability company, successor in interest to WHPX-S REAL ESTATE LIMITED
PARTNERSHIP, a Delaware limited partnership, having an address at 0000 Xxxxxxx
Xxxxxx, Xxxxx 000, Xxxxx Xxxx, Xxxxxxxxxx 00000 (hereinafter "Landlord"); (b)
XXXXXXXX XXXXXXXXXXXX, a Delaware corporation, having an office address at 0000
Xxxxxxxxx Xxxxx, Xxx Xxxxx, Xxxxxxxxxx 00000 ("Tenant"), the tenant under a
lease dated as of January 15, 1997 (the "Lease"), in the building located at
0000 Xxxxxx Xxxxxx, Xxx Xxxxx, Xxxxxxxxxx (the "Building"); and (c) PATH 1
NETWORK TECHNOLOGIES, INC., a Delaware corporation, having an address at 0000
Xxxxxx Xxxxxx, Xxx Xxxxx, Xxxxxxxxxx ("Subtenant").
Landlord hereby consents to the subletting by Tenant to Subtenant of
the premises (the "Subleased Premises") identified in the Sublease dated as of
May 6, 2002 (the "Sublease"), a copy of which is attached hereto as Exhibit A,
such consent being subject to and upon the following terms and conditions, to
each of which Tenant and Subtenant hereby expressly agree:
1. Effect on Lease; Tenant and Subtenant Jointly and Severally Liable. Except as
provided in Paragraph 6 below, this Agreement shall have no effect on the
provisions of the Lease and shall not constitute a waiver of any breach of the
performance of Tenant's obligations thereunder. Throughout the term of the
Sublease, Tenant and Subtenant shall be jointly and severally liable for the
performance of all tenant obligations thereunder which relate to the Subleased
Premises. Any breach or violation of any provision of the Lease by Subtenant
which is not cured by Tenant within the applicable cure period shall constitute
a default by Tenant in fulfilling such provision.
2. Subordination. The Sublease shall be subject and subordinate to the Lease at
all times. Subtenant has reviewed the Lease and is fully aware of all of the
provisions thereof, and Subtenant shall not take, perform, or permit any action
which would violate any of the terms and conditions of the Lease. Except with
respect to Paragraph 6 below, in case of any conflict between the provisions of
the Lease and the provisions of the Sublease as to the rights of Landlord, the
provisions of the Lease shall prevail.
3. Limits of Consent. This Agreement shall not constitute Landlord's:
(a) except for the Letter Consent (as defined below), consent to the performance
of any other work or alterations in and to the Subleased Premises, including,
without limitation, (i) the installation of any separate utility meters in or
about the Building pursuant to Section 5 of the Sublease, (ii) any alterations
to the Subleased Premises, (iii) any modification of the security system in the
Subleased Premises or Building pursuant to Section 6 of the Sublease, (iv)
installation of any improvements in the Building lobby to accommodate
Subtenant's receptionist as contemplated in Section 8 of the Sublease, (v)
installation of any signage pursuant to Section 9 of the Sublease except as
otherwise permitted under this Agreement, (vi) installation of any satellite
dishes pursuant to Section 11 of the Sublease except as otherwise permitted
under this Agreement, and (vii) installation of any cubicles or desks pursuant
to Section 27 of the Sublease except for those cubicles and desks depicted in
the drawings and specifications attached to the Letter Consent. Landlord has
consented to the alterations and improvements depicted in the drawings and
specifications attached to Landlord's letter to Tenant dated May 28, 2002,
subject to the terms of such letter (the "Letter Consent"). Except for any
alterations and improvements approved in the Letter Consent, and any alterations
or improvements which, pursuant to the terms of the Lease, do not require
Landlord's consent, any further alterations or improvements shall require the
consent of Landlord pursuant to the terms of the Lease;
(b) agreement to recognize or respond to plans and specifications submitted by
or on behalf of any party other than Tenant;
(c) except as provided in Paragraph 6 below, consent to the use of the Subleased
Premises in any manner or for any purpose other than as expressly permitted by
the Lease;
(d) consent to any other or further subletting by Tenant or Subtenant or any
assignment of the Lease or the Sublease;
(e) consent to the use of any portion of the Building lobby as a reception area
for Subtenant's business;
(f) recognition of any obligations on Landlord's part to the Subtenant or any
rights of the Subtenant against Landlord under the Lease or Sublease, but
nothing herein shall be construed to release Landlord from its obligations to
Tenant under the Lease;
(g) agreement to accept any payment from, or performance by, Subtenant in
discharge of any obligation of Tenant;
(h) recognition that Subtenant has any right to institute any action or
proceeding against Landlord in Subtenant's own name or in the name of Tenant; or
(i) consent to the subletting to Subtenant or any other party of any additional
space in the Building including, without limitation, pursuant to Section 29 of
the Sublease.
4. Termination of Lease. If at any time prior to the expiration of the term of
the Sublease the Lease shall terminate or be terminated for any reason, then at
the sole option of Landlord, expressed by written notice to Subtenant given
within ten (10) days of such termination, either:
(a) the Sublease shall terminate simultaneously upon termination of the Lease
and Subtenant shall vacate the Subleased Premises on or before such date, or
(b) Subtenant shall attorn to and recognize Landlord as landlord under the
Sublease, upon all of the terms and conditions of the Sublease, and Subtenant
shall, promptly upon Landlord's request, execute and deliver all instruments
necessary or appropriate to confirm such attornment and recognition. Subtenant
hereby waives all rights under any present or future law to elect, by reason of
the termination of the Lease, or by reason of any default by Tenant under the
Sublease occurring after Landlord's notice pursuant to this Section 4, to
terminate the Sublease or surrender possession of the Subleased Premises.
Whichever option Landlord exercises, Landlord shall not be:
(i) liable for any act or omission of Tenant;
(ii) subject to any offsets or defenses which Subtenant had or might have
had against Tenant; or
(iii) bound by any amendment or modification of the Sublease not expressly
consented to in writing by Landlord, or by any base rent or additional
rent or other payment which Subtenant might have made to Tenant, except
for any payments of base rent or additional rent made no more than one
month in advance in accordance with the terms of the Sublease.
If Landlord fails to give notice to Subtenant pursuant to the initial
paragraph of this Section, Landlord shall be deemed to have chosen to terminate
the Sublease, as set forth in Section 4(a).
5. Conditions Precedent to Consent(a) . Landlord's consent to the Sublease is
expressly conditioned upon Tenant's payment to Landlord of One Thousand and
00/100 Dollars ($1,000) pursuant to Section 6.1 of the Lease to reimburse
Landlord for a portion of Landlord's cost and fees incurred in connection with
the review of the Sublease and the preparation of this Agreement.
6. Consent to Subtenant's Exclusive Use of Common Area Corridor. Landlord,
Tenant and Subtenant agree that the common area corridor depicted as the area
marked with diagonal lines on attached Exhibit B is not part of Tenant's
Premises under the Lease ("Corridor"). Notwithstanding the foregoing, Landlord
hereby consents to Tenant's and Subtenant's exclusive use of the Corridor.
7. Lobby Area Reception Desk. Tenant and Subtenant agree that notwithstanding
any provision of the Lease or the Sublease, neither Tenant nor Subtenant shall
have any right to use the existing receptionist desk located in the Building
lobby, install a new reception desk in the Building lobby, or to otherwise use
the Building lobby as a reception area, except in common with other tenants of
the Building. The existing reception desk in the Building lobby may be removed
by Landlord, or Tenant shall remove that receptionist desk at Landlord's
request.
8. Additional Provisions Applicable to Sublease(a) Antennas. Subtenant desires
to install four antennas (each approximately 48" in diameter), together with
related equipment, on the roof of the Building for Subtenant's use. Subtenant
shall not install any such antennas or equipment, or other antennas or
equipment, on the roof of the Building, without first submitting plans to
Landlord regarding same and obtaining Landlord's prior written consent, which
consent shall not be unreasonably withheld. Any work relating to the
installation of such antennas and related equipment shall be performed by
Subtenant in accordance with the terms and provisions of the Lease, and such
antennas and related equipment shall be used in accordance with the terms and
provisions of the Lease. Subtenant agrees that Landlord is making no
representation or warranty that there will be no interference with Subtenant's
use of its antennas by other existing or future transmission equipment located
in, on or about the Building.
(b) Signage. Subtenant desires to install signage o the Building similar in size
and in the same locations as Tenant's existing signage on the Building, together
with related equipment. Subtenant shall not install any such signage without
first submitting plans to Landlord regarding same and obtaining Landlord's prior
written consent, which consent shall not be unreasonably withheld. Any work
relating to the installation of such signage and related equipment shall be
performed by Subtenant in accordance with the terms and provisions of the Lease,
and such signage and related equipment shall be used in accordance with the
terms and provisions of the Lease.
(c) Alterations. Alterations to the Subleased Premises now or hereafter approved
by Landlord shall be performed by Subtenant in accordance with the terms and
provisions of the Lease.
9. Default under Lease. In the event that Tenant shall be in default under the
Lease beyond any applicable grace period and Landlord gives notice of any such
default to Subtenant, then, from the date upon which Landlord gives such notice
to Subtenant until such time as Landlord rescinds said notice or takes other
action pursuant to Section 4 hereof, Subtenant shall make all payments of base
rent, additional rent, and all other charges due under the Sublease directly to
Landlord by unendorsed check made payable solely to Landlord at the address
designated by Landlord in said notice. All such payments shall be credited, upon
collection by Landlord only against any sums due Landlord by Tenant under the
Lease. Tenant hereby authorizes payment by Subtenant to Landlord pursuant to
this Section 9. Landlord may exercise its rights under this Section 9 on one or
more occasions, and from time to time, as often as Landlord desires, and the
rights granted to it hereunder shall apply in each event of default by Tenant
under the Lease. The acceptance of any such payments from Subtenant shall not be
deemed an acceptance of Subtenant as tenant under the Lease or an attornment to
Landlord under the Sublease nor shall it release Tenant from any of its
obligations under the Lease.
10. Janitorial. Tenant and Subtenant agree that Landlord may, at its option,
upon thirty (30) days prior written notice to Tenant, elect to provide
janitorial service to the Subleased Premises during the term of the Sublease.
Upon Landlord's election to provide janitorial service to the Subleased
Premises, Tenant and Subtenant shall be jointly and severally liable for
reimbursing Landlord for an equitable share, as reasonably determined by
Landlord, of Landlord's actual reasonable expenses incurred to provide
janitorial service to the Subleased Premises (the "Janitorial Reimbursement").
The Janitorial Reimbursement shall be payable monthly concurrently with Tenant's
rental payment under the Lease, shall be based on Landlord's annual statement
delivered to Tenant in advance and shall be the subject of a separate,
additional line item in each Reconciliation Statement delivered to Tenant under
Section 2.2(e) of the Lease.
11. Complete Copy of Sublease; No Further Amendments. Tenant and Subtenant
hereby, jointly and severally, represent and warrant to Landlord that true and
complete duplicates of the Sublease and of all accompanying documents are
attached hereto as Exhibit A, and that there are no other agreements between
Tenant and Subtenant, oral or written, of any kind or nature relating to the
Lease, the Sublease, or the use and occupancy of the Subleased Premises. Tenant
and Subtenant shall not amend the Sublease without the prior written consent of
Landlord, which consent may be withheld in Landlord's reasonable discretion;
provided that no such consent shall affect or modify the Lease in any way.
12. Copies of Notices. Tenant and Subtenant each agrees to promptly send to
Landlord copies of notices sent or received from the other under the Sublease.
13. Landlord Not Bound. Landlord shall not be bound or estopped in any way by
any provision of the Sublease. This Agreement shall not constitute a
construction of the provisions of, or an acknowledgment of the accuracy of, any
statement or recitals set forth in the Sublease.
14. No Defaults. Landlord and Tenant agree that as of the date hereof, the Lease
is in full force and effect, and neither Landlord nor Tenant is aware of or
claims any default on the part of the other party under the Lease, or any
condition which through passage of time may become a default, or any defense to
its obligation to comply with all provisions of the Lease.
15. Enforcement. This Agreement shall be construed and enforced in accordance
with the laws of the state in which the Building is located, unless the Lease
provides that it shall be governed by the laws of a different jurisdiction, in
which case this Agreement shall be construed and enforced in accordance with the
laws of that jurisdiction.
16. Entire Agreement. This Agreement contains the entire agreement of the
parties hereto with respect to the subject matter hereof. This Agreement may not
be changed, modified, terminated, or discharged except by written document
signed by Landlord, Tenant and Subtenant.
17. Landlord's Remedies Cumulative. Each right and remedy of Landlord provided
for in this Agreement or in the Lease shall be cumulative and shall be in
addition to every other right and remedy provided for therein or now or
hereafter existing at law or in equity or by statute or otherwise, and the
exercise or beginning of the exercise by Landlord of any one or more of the
rights or remedies so provided for or existing shall not preclude the
simultaneous or later exercise by Landlord of any or all other rights or
remedies so provided for or so existing.
18. Partial Invalidity. If any one or more of the provisions contained in this
Agreement shall be invalid, illegal, or unenforceable in any respect, the
validity, legality, and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby.
19. Notices. All notices required or permitted by this Agreement shall be in
writing and shall be sent by telecopy (in which case notice shall be effective
on the date sent), overnight delivery service (such as Federal Express)
(effective on the day after the date sent), or certified mail (effective on the
third day after the date sent), sent to the address set forth in the opening
paragraph of this Agreement, or to such other address as shall, from time to
time, have been designated by written notice by any party hereto given to the
other parties as set forth in this section.
20. Landlord's Successors. The term "Landlord" as used herein shall mean
Landlord and its successors and assigns as owner of the Building.
21. Authority. The individuals signing below represent, warrant, and covenant
that they are authorized to executed this Agreement on behalf of the entity for
which they are signing and thereby bind that entity to perform its obligations
under this Agreement.
22. Satisfaction. Subtenant acknowledges and agrees that the execution of this
Agreement by all parties hereto shall satisfy all conditions to the
effectiveness of the Sublease as the same relate to any requirement to obtain
Landlord's consent to this Sublease or Subtenant's desired alterations and
improvements. Subtenant further acknowledges that Subtenant may be required
under the terms of the Sublease or the Lease to obtain further consents from
Landlord with respect to signage, antennas and other alterations, but such
requirement to obtain further consents shall not delay the commencement of the
term of the Sublease or affect the validity or enforceability of Subtenant's
obligations under the Sublease.
This Agreement shall not be binding upon Landlord unless and until it
has been executed by all parties hereto.
TENANT: SUBTENANT:
XXXXXXXX XXXXXXXXXXXX, PATH 1 NETWORK TECHNOLOGIES, INC.,
a Delaware corporation. a Delaware corporation
By:
By: Name:
--------------------------------
Name: Title:
-------------------------------
Title:
LANDLORD:
POINTE CAMINO XXXXXXX, LLC, a California limited
liability company
By:
Name:
Title:
EXHIBIT A
---------
SUBLEASE
[See Next Page]
EXHIBIT B
CORRIDOR
[See Next Page]
