EXHIBIT
10.23
SUBLEASE AGREEMENT
This Agreement ("Sublease") is made this 1st day of February 1999 by
and between Xxxxxxxxx'x Inc., a Delaware Corporation ("Sublessor") and Unapix
Entertainment Inc., a Delaware Corporation ("Sublessee").
RECITALS
WHEREAS, a lease ("Lease") was entered into as of August 20,1993, by
and between Trizec Properties, Inc. as Landlord and Sublessor as Tenant whereby
Sublessor leased the premises known as Suites 600, 700, 900 and 1400 in the
building located at 00000 Xxxxxxx Xxxxxxxxx, Xxxxxx, Xxxxxxxxxx, comprising
approximately 55,953 rental square feet ("Premises") for a term ending December
3 l, 2003; and
WHEREAS, Sublessor now desires to sublease a portion of the Premises
("Sublease Premises") to Sublessee and Sublessee desires to accept the Sublease
thereof:
AGREEMENT
NOW ,THEREFORE, in consideration of the mutual covenants and
conditions contained herein, Sublessor hereby subleases to Sublessee,
Sublessor's right, title and interest in and to the Subleased Premises, under
and subject to the terms of the Lease, a copy of which is attached hereto as
Exhibit "A", and Sublessee hereby agrees to and does accept the Sublease and in
addition expressly assumes and agrees to keep, perform, and fulfill all the
terms, covenants and obligations required to be kept under the Lease by
Sublessor and the Sublease by Sublessee. Sublessee shall neither do nor permit
anything to be done which would cause the Lease to be terminated or forfeited by
reason of any termination or forfeit reserved or vested in the Landlord under
the Lease.
When in the Lease, any reference is made to Landlord and Tenant, it
shall mean respectively, Sublessor and Sublessee in this Sublease any reference
to "the Lease" or this Lease" or any similar expression in the Lease shall mean
the Sublease herein made; and any reference in the Lease to the "Premises" or
any similar expression shall mean the Subleased Premises demised in this
Sublease. It is the intention of Sublessor and Sublessee that except as
otherwise provided by the specific provisions set forth in this Sublease, the
relation between the Sublessor and Sublessee shall be governed by the Lease
incorporated by referenced as Exhibit "A".
NOTWITHSTANDING THE FOREGOING:
1. TERM: The Term of the Sublease shall begin on February l, 1999 (the
"Commencement Date") and end on December 31, 2003.
2. BASE RENT: The monthly rent payable by Sublessee to Sublessor shall be based
on $1.50 per rentable square foot per month, the ("Base Rent"), payable in
advance on or before the first day of each month of this Sublease without any
set-off or deduction whatsoever. The first month's rent shall be due upon
execution of the Sublease. If this Sublease commences on any day of the month
except for the first day, Sublessee shall pay to Sublessor, base rental as
provided for herein for such commencement month on a prorated basis, such
proration to be based on the actual number of days Sublessee occupies the
Subleased Premises in the commencement month.
3. COMMENCEMENT OF RENT: Notwithstanding anything contained herein, provided
Sublessee is not in default of the terms of the Lease, the Base rent shall be
abated for two (2) months, months 2 & 3, ("Rent Abatement") In addition,
Sublessee shall receive a rent credit of five thousand eight hundred fifty
dollars ($5,850.00) for months 4 through 7, ("Additional Rent Abatement"). Rent
Abatement, and Additional Rent Abatement, is conditioned upon
Sublessee's performance under the terms set forth in the Sublease and Master
Lease.
4. SUBLEASE PREMISES: The Sublease Premises shall consist of 13,900 rentable
square feet; the entire nineth (9th) floor space.
5. TENANT IMPROVEMENTS: Sublessor shall pay for the cost to paint and recarpet
the useable portion of the Premises, using building standard materials, ("Tenant
Improvement Allowance"). The color to be selected by Sublessee. Sublessee shall
not be entitled to any credit for the unused portion of the Tenant Improvement
Allowance.
6. SQUARE FOOTAGE: As set forth in the Master Lease, the Premises is defined as
13,900 square feet, the entire 14th floor.
7. PARKING: Sublessee shall be granted a pro-rata share of all the parking
rights of Sublessor contained in the Master Lease (i.e. covered, uncovered and
reserved).
8. BUILDING DIRECTORY BOARD: Sublessee, at their sole cost and expense, shall
have the right to place its name and names of Sublessee's subsidiaries on the
building directory subject to the terms of the Master Lease and approval of
Landlord.
9. SECURITY DEPOSIT: The Sublessee, upon execution of the Sublease, shall
deposit with the Sublessor, a sum equal to the final month's rent which sum
shall be retained by the Sublessor as security for the payment by the Sublessee
of the rent and for the faithful performance of the Terms and Conditions of this
Sublease. Sublessor shall return the Security Deposit to the Sublessee within
sixty (60) days after the Sublease ends, subject to deductions for any incurred
Sublessee defaults.
10. ADDITIONAL RENT: In addition to the monthly Base Rent provided for herein,
Sublessee shall pay Additional Rent as that term is defined in Articles 4, 5,
and 6 of the Lease attached as Exhibit "A" hereto and all other additions to
Base Rent as provided for in the Lease. Notwithstanding any provisions in the
Lease, Sublessee shall reimburse Sublessor for Sublessor's proportionate share
(based on the square footage of the Sublease Premises) of Additional Rent or
other additions to Base Rent which Sublessor is billed by the Landlord for any
increase in operating expenses in excess of the first Sublease year amount. The
Base year is defined as Calendar Year 1999.
11. NO SERVICES OF SUBLESSOR: Sublessee recognizes that Sublessor shall have no
obligation whatsoever to provide any services to Sublessee or make any repairs
to the Subleased premises or Building, as that term is defined in the Lease, but
that Sublessee will look solely to the Landlord for such obligations and any
other obligations Landlord is required to perform under the Lease.
12. ACCEPTANCE OF PREMISES AS-IS: Except as stated herein, Sublessee accepts the
Subleased Premises in their "As-Is" condition as of the date of the Sublease.
13. REPAIR OF PREMISES: During the Sublease term, Sublessee shal1 perform all
matters of repair in respect to the Subleased premises that the Sublessor as
tenant is obligated to perform under the terms of the Lease. With regard to
repairs that are required to be performed by the Landlord under the Lease,
Sublessor grants to Sublessee the privilege in the Sublessor's name to enforce
the obligation of the Landlord to do the repair and Sublessee shall not look to
Sublessor for the performance of those repair
14. PAYMENT OF RENT: All rents due under this Sublease shall be paid on or
before the first day of the month for which they are due, by Sublessee and made
payable to Xxxxxxxxx'x Inc. and mailed to:
Property Management Department
Xxxxxxxxx'x, Inc.
0000 Xxxx Xxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, XX 00000
15. USE: The Subleased premises shall be used as general administrative offices
as provided under the terms of the Master Lease and for no other purpose.
Sublessee shall make no changes or alterations to the Subleased premises without
the prior written approval of Sublessor and Landlord. Sublessee shall be
responsible, at its sole cost and expense, to remove or repair any alterations
or improvement Sublessee makes to the Premises that the landlord will require to
he removed at the end of the sublease term.
16. INSURANCE: All insurance obligations Sublessee has assumed under the lease
shall be performed for the Landlord as well as the Sublessor, including but not
limited to naming Sublessor and Landlord as an additional insured under
Sublessee's insurance, holding harmless indemnifying and waiving subrogation as
against Sublessor and Landlord.
17. INDEMNITY: Sublessee, to the extent permitted by law, waives all claims it
may have against Sublessor and against the Sublessor's agents and employees from
damage to persons or property sustained by Sublessee or by any occupant of the
Subleased Premises, or by any other person, resulting from any part of the
building or land of which the Subleased Premises are a part (the "Building"), or
any equipment or appurtenances becoming out of repair, or resulting from any
accident in or about the Subleased Premises or Building resulting directly or
indirectly from any act of neglect of any Tenant or occupant of any part of the
Building or for any other person, except to the extent such damage is a result
of the gross negligence of Sublessor or Sublessor's agents or employees. All
personal property belonging to the Sublessee or any occupant of the Subleased
Premises that is in or on any part of the Building shall be then at the risk of
the Sublessee or such other person only, and the Sublessor, its agents and
employees shall not be liable for any damage thereto or for the theft or
misappropriation thereof except to the extent such damage, theft or
misappropriation is a result of the gross negligence of Sublessor or Sublessor's
agents or employees. The Sublessee agrees to hold the Sublessor harmless and
indemnify Sublessor against claims and liability for injuries to all persons and
for damages to or loss of property occurring in or about the Subleased premises
or Building, due to any intentional act or negligence by the Sublessee, its
contractors, agents or employees. Sublessee shall also indemnify and hold
Sublessor harmless from and against all claims of any kind whatsoever by reason
of any breach or default of the Lease or this Sublease on the part of Sublessee,
its contractors, agents or employees.
18. SUBLESSEE DEFAULT: Any failure by Sublessee to pay any installment of Rent
or Additional Rent, or to make any other payment required to be made by
Sublessee hereunder when due, or to perform or comply with any other material
provision of this Sublease to be performed or complied with by Sublessee, where
such failure continues for twenty (20) days after delivery of written notice of
such failure by Sublessor to Sublessee shall constitute a default by Sublessee
under this Sublease (a "Sublessee Default") provided, however, that if the
nature of any non monetary failure is such that the same cannot reasonably be
cured within such twenty (20) day period, the same shall not constitute a
Sublessee Default if Sublessee shall, within twenty (20) days of such notice
commence such cure, and thereafter diligently prosecute such cure to completion.
19. BROKER'S FEE: The brokers involved in this transaction are Xxxxx and Xxxxx
and Xxxxx Xxxx Xxxxxxx as Sublessor's agent and Stone Company as Sublessee's
agent. Upon execution of this Sublease by both parties, Sublessor shall pay to
said broker a fee as set forth in a separate agreement between Sublessor and
said brokers
for brokerage services rendered by said broker to Sublessor in this transaction.
Sublessee and Sublessor each represents and warrants to the other that neither
has had any dealings with any person, firm, broker, or finder other than those
names as set forth above in connection with the negotiation of this Sublease
and/or the consummation of the transaction contemplated hereby, and no other
broker or other person, firm or entity is entitled to any commission or finder's
fee in connection with said transaction and Sublessee and Sublessor do each
hereby indemnify and hold the other harmless from and against any costs,
expenses, attorney's fees or liability for compensation or charges which may be
claimed by such an unnamed broker, finder or other similar party by reason of
any dealings or actions of the indemnifying party.
20. HOLDOVER: If Sublessee retains possession of the Subleased premises or any
part thereof after the termination of the Sublease term, the Sublessee shall pay
the Sublessor rent at a monthly rate equal to double the amount of the total
monthly rent (including additional rent as such is defined in Section 6 of this
Sublease) which would have been applicable had the term of the Master Lease
continued through the period of such holding over by tenant. In addition,
Sublessee shall pay the Sublessor for all damages, consequential as well as
direct, sustained by reason of Sublessee's retention of possession. The
provisions of this Article do not exclude Sublessors right of re-entry or any
other right hereunder.
21. NOTICES: All notices or demands given or required to be given hereunder
shall be in writing and shall be sent to the intended recipients address as set
forth below or at such other address as shall be designated in writing by the
party to receive notice.
22. ASSIGNMENT AND SUBLEASE: Sublessee shal1 not assign this Sublease nor
sublease any portion of the Premises without the prior written consent of the
Sublessor and Landlord, pursuant to the terms of the Master Lease, which consent
shall not be unreasonably withheld, conditioned or delayed. For purposes of this
Section, any sale of stock, change in control, reorganization, merger, sale of
assets or similar transaction by Sublessee shall constitute an assignment or a
sublease requiring the consent of Sublessor.
Sublessee may sublease, subject to the terms of the Master Lease up, to 4,000
rentable square feet of the Premises and all profits. In the event more than
4,000 square feet are subleased, then the profits shall be split equally.
23. LIABILITY BEYOND THE TERM OF THE MASTER LEASE: Sublessee and Landlord
represent that Sublessor shall not be liable for any obligation arising under
any sublease extension or any other liability beyond the term of the Master
Lease.
For Sublessee:
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For Sublessor: Xxxxxxxxx'x, Inc.
Attn: Property Management Department
0000 Xxxx Xxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, XX 00000
24. STIPULATIONS: The parties stipulate:
(a) No receipt of money by the Sublessor from the Sublessee after the
termination of this Sublease or after the service of any notice or after the
commencement of any suit, or final judgment for possession of the Subleased
Premises shall reinstate or extend the term of this Sublease or affect any such
notice, demand or suit
or imply consent for any action for which Sublessor's consent is required.
(b) No waiver of any default of the Sublessee hereunder shall be implied any
omission by the Sublessor to take action on account of such default if such
default persists or is repeated, and no express waiver shall affect any default
other than the default specified in the express waiver and then only for the
time and to the extent therein stated.
(c) Neither party has made any representations or promises except as contained
herein, or in some further writing signed by the party making such
representation or promise.
(d) This assignment shall be construed and enforced in accordance with the laws
of the State of California.
25. BREACH, REMEDIES: Upon Sublessee's breach of the Sublease, Sublessor shall
have all the rights against Sublessee as would be available to the Landlord
against Tenant under the Lease as if such a breach were by Tenant thereunder.
26. BINDING ON SUCCESSORS: This Agreement shall be binding on and inure to the
benefit of the parties hereto, their heirs, executors, administrators,
successors in interest and assigns, subject to the Lease clause dealing with
Sublease and Assignment.
Executed the day and year first above written.
Sublessor:
XXXXXXXXX'X, INC.
By:
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Sublessee:
This Sublease is not effective until signed be1ow by the Landlord, whose
signature below is its consent to this Sublease. This consent does not waiver
Landlord's right to consent to any further Subleases or Agreements, nor does it
signify anything more than Landlord's consent to the Sublease.
LANDLORD:
By:
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