SUBLEASE AGREEMENT
BETWEEN
PLM INTERNATIONAL, INC.
AND
ARNELLE, HASTIE, XxXXX, XXXXXX & XXXXXX
SUBLEASE AGREEMENT
THIS SUBLEASE AGREEMENT ("Sublease") is dated for reference purposes
only as of the 1st day of August, 1996 by and between PLM INTERNATIONAL, INC., a
Delaware corporation, (hereinafter referred to as "Sublandlord") and ARNELLE,
HASTIE, XxXXX, XXXXXX & XXXXXX, a California general partnership (hereinafter
referred to as "Subtenant").
W I T N E S S E T H:
WHEREAS, ONE MARKET PLAZA, a joint venture, predecessor-in-interest of
ZML-ONE MARKET LIMITED PARTNERSHIP, as landlord ("Landlord"), and Sublandlord,
as tenant, entered into that certain Lease Agreement dated November 28, 1990
("Original Lease"), as modified pursuant to that certain First Amendment to
Office Lease dated January 14, 1992 ("First Amendment"), that certain Second
Amendment to Office Lease dated January 14, 1992 ("Second Amendment"), that
certain Third Amendment to Office Lease dated January 14, 1992 ("Third
Amendment"), and that certain Fourth Amendment effective December 28, 1994
("Fourth Amendment")(the Original Lease, the First Amendment, the Second
Amendment, the Third Amendment and the Fourth Amendment are collectively
hereinafter referred to as "Master Lease") whereby Landlord leased to Tenant the
entire seventh, eighth and ninth floors of Xxxxxxx Street Tower ("Master
Premises") of the building commonly know as One Market Plaza, located in the
City and County of San Francisco, State of California (the "Building"), as more
particularly described in the Master Lease, upon the terms and conditions
contained therein. All capitalized terms used herein shall have the same meaning
ascribed to them in the Master Lease unless otherwise defined herein. A copy of
the Master Lease is attached hereto as Exhibit "A" and made a part hereof.
WHEREAS, Sublandlord and Subtenant are desirous of entering into a
sublease of the entire ninth floor ("Sublease Premises") on the terms and
conditions hereafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto mutually
covenant and agree as follows:
Demise. Sublandlord hereby subleases and demises to Subtenant
and Subtenant hereby hires and subleases from Sublandlord the Sublease Premises,
which the parties hereto stipulate to contain 15,376 rentable square feet
("RSF"), upon and subject to the terms, covenants and conditions hereinafter set
forth.
Lease Term. The term of this Sublease ("Term") shall commence
on December 1, 1996 (hereinafter referred to as the "Sublease Commencement
Date") and ending, unless sooner terminated as provided herein, on May 31, 2001
(hereinafter referred to as the "Sublease Expiration Date").
Use.
The Premises shall be used and occupied by Subtenant
solely for the uses permitted under and in compliance with Article 5 of the
Original Lease and for no other purpose.
In the use and occupation of the Sublease Premises
and the conduct of its business thereon, Subtenant, at its sole cost and
expense, shall be responsible for obtaining and keeping in effect any license
and permits required in connection with Subtenant's use of the Sublease Premises
and shall promptly comply with all present and future laws, ordinances, orders,
rules, regulations and requirements of all federal, state and municipal
governments, courts, departments, commissions, boards and officers, any national
or local Board of Fire Underwriters or any other body exercising functions
similar to those of any of the foregoing, foreseen or unforeseen, ordinary as
well as extraordinary, which may be applicable to the Sublease Premises or the
owners, tenants or occupants thereof, including, without limitation, all
provisions of Title 24 of the California Code of Regulations and of the
Americans with Disabilities Act of 1990 (collectively, the "ADA").
Notwithstanding any other provision herein, in no event shall Sublandlord be
obligated to incur any cost or expense whatsoever to effect any such compliance.
Subrental
Base Rental. Beginning with the Sublease
Commencement Date and thereafter during the Term of this Sublease and ending on
the Sublease Expiration Date, Subtenant shall pay to Sublandlord for this
subletting the following base rent (the "Base Rental"):
Months 1-12: $28.00 per RSF, full service gross;
Months 13-24: $29.00 per RSF, full service gross;
Months 25-36: $30.00 per RSF, full service gross;
Months 37-54: $32.00 per RSF, full service gross.
Base Rental and any additional rent payable hereunder shall hereinafter
be collectively referred to as "Rent."
Prorations. If the Sublease Commencement Date is not
the first (1st) day of the month, or if the Sublease Expiration Date is not the
last day of a month, a prorated installment of monthly Base Rental shall be paid
for the fractional month during which the Term commenced or terminated.
Escalation Rent. Commencing with the calendar year
subsequent to expiration of the calendar year 1997 ("Base Year") and each
calendar year thereafter during the Term of this Sublease, Subtenant shall pay
to Sublandlord, as additional rent for this subletting, an amount equal to
Subtenant's pro rata share of the excess of Operating Expenses and Property
Taxes (as set forth in Article 4 of the Original Lease) for the Master Premises
over the total dollar amount of Operating Expenses and Property Taxes for the
Master Premises incurred by Sublandlord during the Base Year pursuant to the
terms and conditions of the Master Lease. Subtenant's pro rata share is the
percentage which reflects the ratio of the RSF of the Sublease Premises to the
RSF of the Master Premises. Subtenant's pro rata share as of the Sublease
Commencement Date is 33.52%.
Payment of Rent. Except as otherwise specifically
provided in this Sublease, Rent shall be payable in lawful money without demand,
and without offset, counterclaim, or setoff in monthly installments, in advance,
on the first day of each and every month during the Term of this Sublease. All
of said Rent is to be paid to Sublandlord at its office at the address set forth
in Section 13 herein, or at such other place or to such agent and at such place
as Sublandlord may designate by notice to Subtenant. Any additional rent payable
on account of items which are not payable monthly by Sublandlord to Landlord
under the Master Lease is to be paid to Sublandlord as and when such items are
payable by Sublandlord to Landlord under the Master Lease unless a different
time for payment is elsewhere stated herein. Upon written request therefore,
Sublandlord agrees to provide Subtenant with copies of any statements or
invoices received by Sublandlord from Landlord pursuant to the terms of the
Master Lease.
Advance Rent. Concurrently with the execution of the
Sublease, Subtenant shall pay to Sublandlord the sum of Thirty-Five Thousand
Eight Hundred Seventy-Seven and 33/100 Dollars ($35,877.33) ("Advance Rent"),
which Advance Rent shall be applied by Sublandlord toward the Base Rental for
month one (1) of the Term of the Sublease due and payable by Subtenant pursuant
to the provisions of Section 4(a).
Security Deposit. In addition to the foregoing Advance Rent
and also concurrently with the execution of the Sublease, Subtenant shall
deliver to Sublandlord the original copy of a clean, irrevocable and
unconditional letter of credit in the form attached hereto as Exhibit B (the
"Letter of Credit") issued by a financial institution, and subject only to terms
reasonably acceptable to Sublandlord. The Letter of Credit shall be in the
amount of Thirty-Eight Thousand Four Hundred Forty Dollars ($38,440.00) (the
"Deposit"), which Deposit shall be held by Sublandlord as security for the full
and faithful performance of Subtenant's covenants and obligations under this
Sublease. The Letter of Credit shall provide for its payment to Sublandlord upon
its presentation of a statement from Sublandlord that an event of default by
Subtenant exists hereunder. Upon the failure of Subtenant to deliver a
replacement letter of credit (or an extension of the existing Letter of Credit)
on or before thirty (30) days prior to any maturity date of any such Letter of
Credit, Sublandlord may draw upon the same and thereafter treat such cash as a
portion of the Deposit. The Deposit shall secure Subtenant's obligations under
this Sublease to pay Rent and other monetary amounts, to maintain the Sublease
Premises and repair damages thereto, to surrender the Sublease Premises to
Sublandlord upon the termination of this Sublease in as good order, condition
and repair as they shall be upon the Sublease Commencement Date, except for
reasonable wear and tear and damage or destruction caused by the elements or
casualty not required to be insured against by Subtenant, and to discharge
Subtenant's other obligations hereunder. Sublandlord may use and commingle the
Deposit with other funds of Sublandlord. If an event of default by Subtenant
exists under the terms of this Sublease, Sublandlord may, but without any
obligation to do so, apply all or any portion of the Deposit towards fulfillment
of Subtenant's unperformed obligations. If Sublandlord does so apply any portion
of the Deposit, Subtenant's failure to remit to Sublandlord cash or a
replacement Letter of Credit to restore the Deposit to the original amount
within five (5) days after receipt of Sublandlord's written demand to do so
shall constitute an event of default hereunder.
Signage. To the extent permitted under the Master Lease, and
subject to Landlord's approval, Subtenant may install, at its sole cost and
expense, appropriate signage upon the entry door to the Sublease Premises
identifying Subtenant. Furthermore, to the extent permitted under the Master
Lease or otherwise permitted by Landlord, Subtenant shall be allowed spaces on
the Building directory in the lobby of the Building.
Incorporation of Terms of Master Lease.
This Sublease is subject and subordinate to the
Master Lease. Subject to the modifications as set forth in this Sublease, the
terms of the Master Lease are incorporated herein by reference, and shall, as
between Sublandlord and Subtenant (as if they were the Landlord and Tenant,
respectively, under the Master Lease) constitute the terms of this Sublease
expect to the extent that they are inapplicable to, inconsistent with, or
modified by, the terms of this Sublease. In the event of any inconsistencies
between the terms and provisions of the Master Lease and the terms and
provisions of this Sublease, the terms and provisions of this Sublease shall
govern. Subtenant acknowledges that it has reviewed the Master Lease and is
familiar with the terms and conditions thereof.
For the purposes of incorporation herein, the terms
of the Master Lease are deleted or modified as follows:
Delete in its entirety the following
paragraphs of and exhibits to the Addendum to Original Lease: 2 (Term;
Condition of Premises), 3 (Rental), 25 (Sublease Shortfall), 26
(Relocation Allowance), 27 (Storage Space), 28 (Parking), 29 (Option to
Expand), 30 (Right of First Refusal), Exhibit A (Floor Plans), and
Exhibit C (Work Letter: Initial Improvement of Premises).
Delete in their entirety the First
Amendment, the Second Amendment, the Third Amendment and the Fourth
Amendment.
In all provisions of the Master Lease
(under the terms thereof and without regard to modifications thereof
for purposes of incorporation into this Sublease) requiring the
approval or consent of Landlord, Subtenant shall be required to obtain
the approval or consent of both Sublandlord and Landlord.
In all provisions of the Master Lease
requiring Tenant to submit, exhibit to, supply or provide Landlord with
evidence, certificates, or any other matter or thing, Subtenant shall
be required to submit, exhibit to, supply or provide, as the case may
be, the same to both Landlord and Sublandlord. In any such instance,
Sublandlord shall determine if such evidence, certificate or other
matter or thing shall be satisfactory.
Sublandlord shall have no obligation to
restore or rebuild any portion of the Sublease Premises after any
destruction or taking by eminent domain.
Subtenant's rights, if any, to abatement of
Rent hereunder shall be limited as provided in the Master Lease;
provided, however, Rent shall only xxxxx hereunder if and to the extent
Sublandlord's rent obligation for the Sublease Premises abates under
the Master Lease.
Subtenant's Obligations. Subtenant covenants and agrees that
all obligations to Sublandlord under the Master Lease shall be done or performed
by Subtenant with respect to the Sublease Premises, except as otherwise provided
by this Sublease, and Subtenant's obligations shall run to Sublandlord and
Landlord as Sublandlord may determine to be appropriate or be required by the
respective interests of Sublandlord and Landlord. Subtenant agrees to indemnify
Sublandlord, and hold it harmless, from and against any and all claims, damages,
losses, expenses and liabilities (including reasonable attorneys' fees) incurred
as a result of the nonperformance, observance or nonpayment of any of
Sublandlord's obligations under the Master Lease with respect to the Sublease
Premises which, as a result of this Sublease, became an obligation of Subtenant.
If Subtenant makes any payment to Sublandlord pursuant to this indemnity,
Subtenant shall be subrogated to the rights of Sublandlord concerning said
payment. Subtenant shall not do, nor permit to be done, any act or thing which
is, or with notice or the passage of time would be, a default under this
Sublease or the Master Lease.
Sublandlord's Obligations. Sublandlord agrees that Subtenant
shall be entitled to receive all services and repairs to be provided by Landlord
to Sublandlord with respect to the Sublease Premises under the Master Lease.
Subtenant shall look solely to Landlord for all such services and shall not,
under any circumstances, seek nor require Sublandlord to perform any of such
services, nor shall Subtenant make any claim upon Sublandlord for any damages
which may arise by reason of Landlord's default under the Master Lease. Any
condition resulting from a default by Landlord shall not constitute as between
Sublandlord and Subtenant an eviction, actual or constructive, of Subtenant and
no such default shall excuse Subtenant from the performance or observance of any
of its obligations to be performed or observed under this Sublease, or entitle
Subtenant to receive any reduction or abatement of the rent provided for in this
Sublease. In furtherance of the foregoing, Subtenant does hereby waive any cause
of action and any right to bring any action against Sublandlord by reason of any
action or omission of Landlord under the Master Lease. Sublandlord covenants and
agrees with Subtenant that Sublandlord will pay all fixed rent and additional
rent payable by Sublandlord pursuant to the Master Lease to the extent that
failure to perform the same would adversely affect Subtenant's use or occupancy
of the Sublease Premises. In the event Landlord shall not comply with its
obligation under the Master Lease, then (a) Subtenant shall have the right,
either in its own name or in the name of Sublandlord (as required or permitted
by applicable law, but in any event, without any cost or expense or liability to
Sublandlord), but only to the extent permitted by the Master Lease, to enforce
such obligations against Landlord, but not against Sublandlord herein, and (b)
Sublandlord hereby acknowledges that it shall use its good faith best efforts to
assist Subtenant, but only to the extent permitted by the Master Lease, in
enforcing such obligations against Landlord.
Default by Subtenant
In the event Subtenant shall be in default of any
covenant of, or shall fail to honor any obligation under, this Sublease,
Sublandlord shall have available to it against Subtenant all of the remedies
available (i) to Landlord under the Master Lease in the event of a similar
default on the part of Sublandlord thereunder or (ii) at law. Subtenant agrees
that the occurrence of an event of default under or breach by Subtenant of
either that certain secured promissory note or related security agreement with
respect to the acquisition by Subtenant from Sublandlord of furniture located in
the Sublease Premises shall constitute an event of default hereunder.
In the event of any breach or default in any of the
terms, covenants, conditions, provisions or agreements of this Sublease on the
part of Subtenant, as a result of which the Term is sooner terminated and if
Subtenant's liability to Sublandlord shall continue as herein provided,
Subtenant agrees that the amount for which Subtenant shall remain liable shall
be the highest annual Rent theretofore paid, with the same force and effect as
if that amount were the annual Rent reserved in this Sublease. Any reference in
any Section of this Sublease and/or the Master Lease relating to reentry and
reletting of the Sublease Premises, to rent reserved or payable, or the
application thereof, shall be based upon such highest annual Rent theretofore
paid as set forth herein.
Quiet Enjoyment. So long as Subtenant pays all of the Rent
due hereunder and performs all of Subtenant's other obligations hereunder,
Sublandlord shall do nothing to affect Subtenant's right to peaceably and
quietly have, hold and enjoy the Sublease Premises.
Notices. Anything contained in any provisions of this
Sublease to the contrary notwithstanding, Subtenant agrees, with respect to the
Sublease Premises, to comply with and remedy any default in this Sublease or the
Master Lease which is Subtenant's obligation to cure, and in all events within
the period allowed to Sublandlord under the Master Lease even if such time
period is shorter than the period otherwise allowed therein due to the fact that
notice of default from Sublandlord to Subtenant is given after the corresponding
notice of default from Landlord to Sublandlord. Sublandlord agrees to forward to
Subtenant, promptly upon receipt thereof by Sublandlord, a copy of each notice
of default received by Sublandlord in its capacity as Tenant under the Master
Lease. Subtenant agrees to forward to Sublandlord, promptly upon receipt
thereof, copies of any notices received by Subtenant from Landlord or from any
governmental authorities. All notices, demands and requests shall be in writing
and shall be sent either by hand delivery or by a nationally recognized
overnight courier service (e.g., Federal Express), in either case return receipt
requested, to the address of the appropriate party. Notices, demands and
requests so sent shall be deemed given when the same are received. Notices to
Sublandlord shall be sent to the attention of:
PLM International, Inc.
Xxx Xxxxxx Xxxxx
Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Vice President, Human Resources
Prior to the Commencement Date, notices to Subtenant shall be sent to
the attention of:
Arnelle, Hastie, XxXxx, Xxxxxx & Xxxxxx
One Market Plaza
Spear Street Tower, 39th Floor
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Chief Executive Officer
After the Commencement Date, notices to Subtenant shall be sent to the
Sublease Premises.
Broker. Sublandlord and Subtenant represent and warrant to
each other that no brokers were involved in connection with the negotiation or
consummation of this Sublease other than TRI Commercial, as Sublandlord's
representative, and Starboard Commercial Brokerage, as Subtenant's
representative. Each party agrees to indemnity the other, and hold it harmless,
from and against any and all claims, damages, losses, expenses and liabilities
(including reasonable attorneys' fees) incurred by said party as a result of a
breach of this representation and warranty by the other party.
Condition of Sublease Premises.
Subtenant has thoroughly inspected the Sublease
Premises and accepts them in their present condition, AS IS WITH ALL FAULTS.
Subtenant acknowledges that neither Sublandlord nor any agent of Sublandlord has
made any representation as to the condition of the Sublease Premises or their
suitability for the conduct of Subtenant's business. Specifically, neither
Sublandlord nor any agent of Sublandlord has made any representation concerning
the compliance of the Sublease Premises or the building of which the Sublease
Premises are a part with the ADA or similar state laws intended to make business
establishments accessible to persons with a variety of disabilities. Subtenant
and Sublandlord expressly agree that there are and shall be no implied
warranties of merchantability, habitability, fitness for a particular purpose or
any other kind arising out of this Sublease, and there are no warranties that
extend beyond those expressly set forth in this Sublease. Sublandlord is not
obligated to perform any work to prepare the Sublease Premises for Subtenant's
occupancy.
Any time Subtenant proposes to make any alterations
and improvements to the Sublease Premises ("Alterations"), the performance of
the Alterations shall be subject to the following conditions:
The plans and specifications in connection
with the Alterations shall be subject to Sublandlord's prior written
approval, which approval shall not be unreasonably withheld;
Sublandlord shall solicit Landlord's
consent to such plans and specifications in connection with the
Alterations as soon as reasonably practicable; and
Subtenant shall provide Sublandlord with at
least ten (10) days' prior notice of the proposed Alterations.
Subtenant acknowledges that it is not authorized to make or do any
Alterations in or to the Sublease Premises except as permitted by the provisions
of this Sublease and the Master Lease and that it must deliver the Sublease
Premises to Sublandlord on the Sublease Expiration Date in the condition
required by the Master Lease.
Consent of Landlord. Section 17(a) of the Master Lease
requires Sublandlord to obtain the written consent of Landlord to this Sublease.
Sublandlord shall solicit Landlord's consent to this Sublease promptly following
the execution and delivery of this Sublease by Sublandlord and Subtenant. In the
event Landlord's written consent to this Sublease has not been obtained within
thirty (30) days after the execution hereof, then this Sublease may be
terminated by either party hereto upon notice to the other, and upon such
termination all documents and deposits delivered hereunder shall be promptly
returned and neither party hereto shall have any further rights against or
obligations to the other party hereto.
Termination of the Lease. If for any reason the term of the
Master Lease shall terminate prior to the Sublease Expiration Date, this
Sublease shall automatically be terminated and Sublandlord shall not be liable
to Subtenant by reason thereof unless said termination shall have been caused by
the default of Sublandlord under the Master Lease.
Assignment and Subletting
Independent of and in addition to any provisions of
the Master Lease, including without limitation the obligation to obtain
Landlord's consent to any assignment as required by the terms of the Master
Lease, it is understood and agreed that Subtenant shall have no right to sublet
or assign the Sublease Premises or any portion thereof without the prior written
consent of Sublandlord, which consent shall not be unreasonably withheld. Any
assignment or sublease by Subtenant without Sublandlord's and Landlord's prior
written consent shall be void and shall, at the option of Sublandlord, terminate
this Sublease.
Subtenant shall advise Sublandlord by notice of (i)
Subtenant's intent to sublet or assign this Sublease, (ii) the name of the
proposed subtenant or assignee and evidence reasonably satisfactory to
Sublandlord that such proposed subtenant or assignee is comparable in
reputation, stature and financial condition to tenants then leasing comparable
space in comparable buildings, and (iii) the terms of the proposed sublease or
assignment. Sublandlord shall within thirty (30) days of receipt of such notice,
and any additional information requested by Landlord concerning the proposed
subtenant's or assignee's financial responsibility, elect one of the following:
Consent to such proposed sublease or
assignment; or
Refuse such consent, which refusal shall be
on reasonable grounds.
In the event that Sublandlord shall consent to any
subletting or assignment under the provisions of this Section 18, Subtenant
shall pay Sublandlord's reasonable processing costs and reasonable attorneys'
fees incurred in giving such consent. Notwithstanding any permitted sublease or
assignment, Subtenant shall at all times remain directly, primarily and fully
responsible and liable for all payments owed by Subtenant under the Sublease and
for compliance with all obligations under the terms, provisions and covenants of
the Sublease. If for any proposed sublease or assignment, Subtenant receives
Rent or other consideration, either initially or over the term of the
assignment, in excess of the Rent required by this Sublease ("Profit"),
Subtenant shall pay to Sublandlord as additional Rent, one-half (1/2) of such
Profit or other consideration received by Subtenant within five (5) days of its
receipt by Subtenant.
Limitation on Estate. Subtenant's estate shall in all
respects be limited to, and be construed in a fashion consistent with, the
estate granted to Sublandlord by Landlord. Subtenant shall stand in the place of
Sublandlord and shall defend, indemnify and hold Sublandlord harmless with
respect to all covenants, warranties, obligations, and payments made by
Sublandlord under or required of Sublandlord by the Master Lease with respect to
the Sublease Premises. In the event Sublandlord is prevented from performing any
of its obligations under this Sublease by a breach by Landlord of a term of the
Master Lease, then Sublandlord's sole obligation in regard to its obligation
under this Sublease shall be to use reasonable efforts in diligently pursuing
the correction or cure by Landlord of Landlord's breach.
Performance by Subtenant; Late Charges. All covenants and
agreements to be performed by Subtenant under any of the terms of this Sublease
shall be performed at Subtenant's sole cost and expense and without any
abatement of Rent. If Subtenant shall fail to pay any sum of money, other than
Rent, required to be paid by it hereunder or shall fail to perform any other act
on its part to be performed hereunder, and such failure shall continue for ten
(10) days after notice thereof by Sublandlord, Sublandlord may, without waiving
or releasing Subtenant from obligations of Subtenant, but shall not be obligated
to, make any such payment or perform any such other act on Subtenant's part to
be made or performed as in this Sublease provided. All sums so paid by
Sublandlord and all necessary incidental costs together with interest thereon at
the lesser of twelve percent (12%) per annum or the maximum non-usurious
interest rate permissible by law, from the date of such payment by Sublandlord,
shall be payable to Sublandlord on demand. In the event Subtenant fails to pay
any installment of Rent when due, said delinquent installment shall bear
interest at the rate of the lesser of twelve percent (12%) per annum or the
maximum non-usurious interest rate permissible by law from the date such payment
was due until paid. Subtenant covenants to pay any such sums, and Sublandlord
shall have (in addition to any other right or remedy of Sublandlord) the same
rights and remedies in the event of the non-payment thereof by Subtenant as in
the case of default by Subtenant in the payment of the Rent. Subtenant hereby
acknowledges that in addition to lost interest, the late payment by Subtenant to
Sublandlord of Rent or other sums due hereunder will cause Sublandlord to incur
other costs not contemplated in this Sublease, the exact amount of which is
extremely difficult and impractical to ascertain. Such other costs include, but
are not limited to, processing, administrative and accounting costs.
Accordingly, if any installment of Rent or any other sum due from Subtenant
shall not be received by Sublandlord within ten (10) days after such amount
shall be due, Subtenant shall also pay to Sublandlord a late charge equal to
five percent (5%) of the delinquent amount. The parties hereby agree that (i)
such late charge represents a fair and reasonable estimate of the costs
Sublandlord will incur in processing each delinquent payment by Subtenant, (ii)
such late charge shall be paid to Sublandlord as liquidated damages for each
delinquent payment pursuant to California Civil Code Section 1671, and (ii) that
the payment of late charges and the payment of interest are distinct and
separate from one another in that the payment of interest is to compensate
Sublandlord for the use of Sublandlord's money by Subtenant, while the payment
of late charges is to compensate Sublandlord for the additional administrative
expenses incurred by Sublandlord in handling and processing delinquent payments.
Examination of Sublease. SUBMISSION OF THIS INSTRUMENT FOR
EXAMINATION OR SIGNATURE BY SUBTENANT DOES NOT CONSTITUTE A RESERVATION OF OR
OPTION FOR SUBLEASE, AND IT IS NOT EFFECTIVE AS A SUBLEASE OR OTHERWISE UNTIL
EXECUTION BY AND DELIVERY TO BOTH SUBLANDLORD AND SUBTENANT AND CONSENTED TO BY
LANDLORD IN ACCORDANCE WITH THE TERMS OF THE MASTER LEASE.
Entire Agreement. Other than agreements between the parties
concerning the purchase and sale of office furniture for use at the Sublease
Premises, this Sublease sets forth all the agreements between Sublandlord and
Subtenant concerning the Sublease Premises, and there are no other agreements
either oral or written other than as set forth in this Sublease.
Time of Essence. Time is of the essence in this Sublease.
Attorneys' Fees. Subtenant shall pay to Sublandlord all
amounts for costs (including reasonable attorneys' fees) incurred by Sublandlord
in connection with any breach or default by Subtenant under this Sublease or
incurred in order to enforce or interpret the terms or provisions of this
Sublease. Such amounts shall be payable upon demand. In addition, if any action
shall be instituted by either of the parties hereto for the enforcement or
interpretation of any of its rights or remedies under this Sublease, the
prevailing party shall be entitled to recover from the losing party all costs
incurred by the prevailing party in said action and any appeal therefrom,
including reasonable attorneys' fees to be fixed by the court therein. Said
costs and attorneys' fees shall be included as part of the judgment in any such
action. Further, should Sublandlord be made a party to any litigation between
Subtenant and any third party, then Subtenant shall pay all costs and attorneys'
fees incurred by or imposed upon Sublandlord in connection with such litigation.
Authority of Subtenant. The undersigned person executing this
Sublease on behalf of Subtenant warrants that Subtenant is a California general
partnership, that the partnership has the full right and authority to enter into
this Sublease, and that the undersigned person signing on behalf of the
partnership is authorized to do so.
IN WITNESS WHEREOF, the duly authorized representatives of the parties
hereto have set their hand as of the day and year hereafter written.
SUBLANDLORD
PLM INTERNATIONAL, INC.,
a Delaware corporation
By:
Name:
Title:
Dated:
SUBTENANT
ARNELLE, HASTIE, XxXXX, XXXXXX & XXXXXX, a California
general partnership
By:
Name:
Title:
Dated:
