SUBLEASE AGREEMENT
Exhibit 99.1
This Sublease Agreement (“Sublease”) is made effective as of the 6th day of March, 2007,
(the “Effective Date”) by and between Selectica, Inc., a Delaware’ corporation (“Sublessor”),
and Nuova Systems, Inc., a Delaware corporation (“Sublessee”), Sublessor agrees to sublease to
Sublessee, and Sublessee agrees to sublease from Sublessor, those certain premises situated in
the City of San Xxxx, County of Santa Xxxxx, State of California, consisting of approximately
79,803 square feet of space known as 0 X. Xxxxxxxx Xxxxx, Xxx Xxxx, XX 00000, more particularly
set forth in the Master Lease (as hereinafter defined) (the “Subleased Premises”).
ARTICLE 1
MASTER LEASE AND OTHER AGREEMENTS
1.1 Subordinate to Master Lease. Except as specifically set forth herein, this
Sublease is subject and subordinate to all of the terms and conditions of the Lease Agreement, made
as of October 1,1999, between Xxxx Anillaga Survivor’s Trust and Xxxxxxx T, Xxxxx Separate Property
Trust, and assigned to Silicon Valley CA-J, LLC (“Master Lessor”) and Sublessor as “Tenant” with
the Term as modified by that certain letter agreement dated January 5, 2000 (the “Letter
Agreement”), changing, among other things, the expiration date (collectively, the “Master Lease”).
Sublessee hereby assumes and agrees to perform the obligations of Lessee under the Master Lease as
more particularly set forth hereafter. Unless otherwise defined, all capitalized terms used herein
shall have the same meanings as given them in the Master Lease, A true, correct and complete copy
of the Master Lease is attached hereto as Exhibit “B” and incorporated herein by this reference.
Sublessee shall not commit or permit to be committed any act or omission which would violate any
term or condition of the Master Lease. Sublessee shall neither do nor permit anything to be done
which would cause the Master Lease to be terminated or forfeited by reason of any right of
termination or forfeiture reserved or vested in Master Lessor under the Master Lease, and Sublessee
shall indemnify and hold Sublessor harmless from and against all claims, liabilities, judgments,
costs, demands, penalties, expenses, and damages of any kind whatsoever, including, without
limitation, attorneys’ fees, consultants’ fees and costs and court costs, (“Claims”) by reason of
any failure on the part of Sublessee to perform any of the obligations of Lessee under the Master
Lease which Sublessee has become obligated hereunder to perform, and such indemnity and hold
harmless shall survive the expiration or sooner termination of this Sublease, In the event of the
termination of Sublessor’s interest as Lessee under the Master Lease for any reason other than (i)
Sublessor’s breach of the Master Lease, (ii) Sublessor’s agreement to an early termination of the
Master Lease without Sublessee’s consent or (iii) Sublessor’s rejection or disaffirmance of the
Master Lease pursuant to any bankruptcy, insolvency , or other law affecting creditors’ rights,
then this Sublease shall terminate automatically upon such termination without any liability of
Master Lessor or Sublessor to Sublessee. Sublessee represents and warrants to Sublessor that it has
read and is familiar with the Master Lease.
1.2 Applicable Provisions. All of the terms and conditions contained in the Master
Lease as they may apply to the Subleased Premises, except those directly contradicted by the
terms and conditions contained in this document, and specifically except that the configuration
of
the Subleased Premises shall be as exists at the time of Sublease execution, and except for
Xxxxxxxxxx 0, 0, 0X, 0X, 00, 00, 41, 43, 44, Exhibit 1, Exhibit B, and the Letter Agreement
(except for the setting of the expiration date of the Master Lease), are incorporated herein and
shall be terms and conditions of this Sublease (with each reference therein to “Landlord” or
“Lessor”, “Tenant” or “Lessee”, the “Lease”, and the “Premises” to be deemed to refer to
Sublessor, Sublessee, this Sublease, and the Subleased Premises, respectively, as appropriate
except the following provisions that are incorporated herein, the reference to Landlord or Lessor
shall mean Master Lessor only: Paragraphs 19, 24, 25, 26, 27, 32, 34, 36, 39 and 49, and along
with all of the following terms and conditions set forth in this document, shall constitute the
complete terms and conditions of this Sublease.
1.3 Obligations of Sublessor. Notwithstanding anything herein contained, the only
services or rights to which Sublessee is entitled hereunder are those to which Sublessor is
entitled under the Master Lease, and for all such services and rights Sublessee shall look solely
to the Master Lessor under the Master Lease, and the obligations of Sublessor hereunder shall be
limited to using its reasonable good faith efforts to obtain the performance by Master Lessor of
its obligations, including, without limitation: (a) upon Sublessee’s written request, immediately
notifying Master Lessor of its nonperformance under the Master Lease and request that Master Lessor
perform its obligations under the Master Lease and (b) permitting Sublessee to commence legal
action in Sublessor’s name to obtain the performance required from Master Lessor under the Master
Lease, so long as Sublessee indemnifies and holds Sublessor harmless from any such action including
attorney’s fees and costs, provided Sublessee shall reimburse Sublessor for all reasonable costs
incurred by Sublessor in such efforts, Sublessor shall have no liability to Sublessee or any
other person for damage of any nature whatsoever as a result of the failure of Master Lessor to
perform said obligations except for Master Lessor’s termination of the Sublessor’s interest as
Lessee under the Master Lease in the event of Sublessor’s breach of the Master Lease, and Sublessee
shall indemnify and hold Sublessor harmless from any and all Claims whatsoever incurred in
defending against same, With respect to any obligation of Sublessee to be performed under this
Sublease, when the Master Lease grants Sublessor a specific number of days to perform its
obligations thereunder, Sublessee shall have two (2) fewer days to perform, With respect to
approval required to be obtained by “Landlord” under the Master Lease, such consent must be
obtained from Master Lessor and Sublessor and the approval of Sublessor may be withheld if Master
Lessor’s consent is not obtained.
1.4 No Amendment to Master Lease. So long as this Sublease is in full force and
effect, Sublessor covenants and agrees that Sublessor will not enter into any amendment,
modification or other agreement to the Master Lease which adversely affects any material rights or
obligations of Sublessee under this Sublease and will not exercise any termination or cancellation
rights under the Master Lease with respect to the Subleased Premises without the prior written
consent of Sublessee, which consent in the event of a casualty or condemnation action will not be
unreasonably withheld.
1.5 Compliance with Master Lease. Sublessor covenants and agrees with Sublessee that,
so long as this Sublease is in full force and effect, Sublessor shall make all payments of rent to
Master Lessor due under the Master Lease and to comply ‘with all other provisions of the Master
Lease with respect to the Subleased Premises (except to the extent Sublessee assumes such
obligations hereunder).
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1.6 Notice from Master Lessor. Whenever notice is given or received pursuant to the
Master Lease by Master Lessor or Sublessor which has relevance to the Subleased Premises,
Sublessor agrees to promptly provide a copy of such notice to Sublessee,
ARTICLE 2
TERM
2.1 Term. The term of this Sublease shall commence on the earlier of (i) March
8,2007, or (ii) the date the Sublessee takes possession of the Subleased Premises, or the date of
delivery of the fully-executed Master Lessor Consent if later than either of the two above. This
shall be referred to as the “Commencement Date.” The term of this Sublease shall end on December
31, 2009, unless sooner terminated pursuant to any provision of the Sublease or the Master Lease
applicable to the Subleased Premises (the “Expiration
Date”). Sublessor shall have no obligation to
Sublessee to exercise any of its options to extend under the Master Lease.
2.2 Option to Extend. Sublessee shall have no option to extend this Sublease.
ARTICLE 3
RENT
3.1 Rent. Sublessee shall pay to Sublessor each month during the term of this
Sublease, the following triple net rent in advance on or before the first of each month (“Base
Rent”):
| Months | Monthly Base Rent | |||
Commencement Date — November 2007 |
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December 2007 — December 2008 |
$ | 59,852.25 | ||
January 2009 — December 2009 |
$ | 67,832.55 | ||
3.2 It is the intent of the parties that Base Rent is fully net to Sublessor, except as
otherwise expressly provided herein. Rent shall be paid to the Sublessor at its business address
noted herein, or at any other place Sublessor may from time to time designate by written notice
mailed or delivered to Sublessee.
3.3 Additional Rent. Sublessee shall pay to Sublessor or Master Lessor, as Sublessor
shall direct in writing, all Management Fees and Additional Rent owed and as defined per the Master
Lease for the period starting May 1,2007 and thereafter during the term of this Sublease. If
Sublessee shall procure any additional services from Master Lessor, or if additional rent or other
sums are incurred for Sublessee’s sole benefit, Sublessee shall make such payment to Sublessor or
Master Lessor, as Sublessor shall direct in writing. Sublessor agrees that if Sublessor receives
any refund or rebate of Management Fees and Additional Rent paid by Sublessee hereunder, Sublessor
shall cause such refund or rebate to be paid directly to Sublessee, or if paid to Sublessor, to be
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promptly reimbursed to Sublessee. Any other rent or other sums payable by Sublessee under this
Sublease shall constitute and be due as additional rent. Base Rent, Management Fees, Additional
Rent, and any other additional rent shall herein be referred to as “Rent”.
ARTICLE 4
SECURITY DEPOSIT
4.1 Security Deposit. Not applicable.
ARTICLE 5
CONDITION OF SUBLEASED PREMISES
5.1 Condition of the Subleased Premises. Sublessor shall deliver the Subleased
Premises to Sublessee on the Commencement Date clean and free of debris, Hazardous Materials that
are the result of Tenant’s Hazardous Materials Activities as defined in the Master Lease, and all
other subtenants and occupants. Sublessor warrants to Sublessee that the roof, plumbing, fire
sprinkler system, lighting; heating, ventilation and air conditioning systems, elevator and
electrical systems in the Subleased Premises, shall be in good operating condition on the
Commencement Date (and any costs incurred by or charged to Sublessor to put such systems into such
condition as of the Commencement Date shall be paid by Sublessor and not passed on to Sublessee as
Additional Rent hereunder or otherwise) and that to Sublessor’s knowledge, without any duty to
investigate, free and clear of Hazardous Materials. In the event of a non-compliance with such
warranty, Sublessor shall promptly after receipt of written notice from Sublessee setting forth the
nature and extent of such non-compliance, rectify same at Sublessor’s cost and expense for up to
120 days after the Commencement Date. Thereafter, the above warranty is deemed fulfilled and of no
further force or effect. Sublessee’s acceptance of the Subleased Premises shall be subject to the
foregoing and to the following provisions of this Section regarding delivery of possession.
Sublessee acknowledges that as of the Commencement Date, Sublessee shall have inspected the
Subleased Premises, and every part thereof, and by taking possession shall have acknowledged that,
subject to the foregoing, the Subleased Premises is in good condition and without need of repair,
and Sublessee accepts the Subleased Premises “as is”, Sublessee having made all investigations and
tests it has deemed necessary or desirable in order to establish to its own complete satisfaction
the condition of the Subleased Premises. Subject to the foregoing, Sublessee accepts the
Subleased Premises in their condition existing as of the Commencement Date, subject to all
applicable zoning, municipal, county and state laws, ordinances, and regulations governing and
regulating the use of the Subleased Premises and any covenants or restrictions of record. Sublessee
acknowledges that, subject to the foregoing, neither Sublessor nor Master Lessor have made any
representations or warranties as to the condition of the Subleased Premises or its present or
future suitability for Sublessee’s purposes.
5.2 Repairs and Surrender. Subject to Sublessor’s obligations for the 120 day period
under Section 5.1, Sublessee shall keep the Subleased Premises, and every part thereof in good
order and repair, and shall, at its sole cost and expense, comply with the Lessee obligations under
the Master Lease to keep the HVAC, mechanical, elevator, electrical and lighting systems within and
serving the Subleased Premises in good condition and repair, Upon the expiration or earlier
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termination of this Sublease, Sublessee shall surrender the Subleased Premises in the condition
required under Paragraph 8 of the Master Lease, and remove any Initial Improvements as set forth
in Section 7.3 herein or any other alterations, improvements, or modifications installed by
Sublessee as required by the Master Lessor.
ARTICLE 6
INSURANCE
6.1 Sublessee’s Insurance With respect to the Tenant’s insurance under the Master
Lease, the same is to be provided by Sublessee as described in the Master Lease, and such policies
of insurance shall include as additional insureds Master Lessor, Sublessor and any lender as
required by Master Lessor.
6.2 Waiver of Subrogation. With respect to the waiver of subrogation contained in the
Master Lease, such waiver shall be deemed to be modified to constitute an agreement by and among
Master Lessor, Sublessor and Sublessee (and Master Lessor’s consent to this Sublease shall be
deemed to constitute its approval of this modification).
ARTICLE 7
USE
OF SUBLEASED PREMISES; PARKING; IMPROVEMENTS
7.1 Use of Subleased Premises. Sublessee shall use the Subleased Premises only for
those general office and other lawful uses to the extent so permitted in the Master Lease.
7.2
Alterations; Improvements. Sublessee shall not make any alterations,
improvements, or modifications to the Subleased Premises without the express prior written consent
of Sublessor and of Master Lessor, which consent by Sublessor shall not be unreasonably withheld,
conditioned or delaye. Sublessee shall reimburse Master Lessor and Sublessor for all reasonable,
out-of-pocket costs which Master Lessor and Sublessor may incur in connection with granting
approval to Sublessee for any alterations, improvements, or modifications, including, without
limitation, Master Lessor’s and Sublessor’s reasonable attorneys’ fees and costs, Sublessee shall
provide Master Lessor and Sublessor with a set of “as-built” drawings for any such work, together
with copies of all permits obtained by Sublessee in connection with performing any such work,
within fifteen (15) days after completing such work. On termination of this Sublease, Sublessee
shall remove any or all of such alterations, improvements, or modifications installed by Sublessee
which Master Lessor requires in writing be removed (either at the time Master Lessor approved same
or any such later time as permitted by the Master Lease) and if any such removal is required,
restore the Subleased Premises (or any part thereof) affected by such removal as required by the
Master Lease, Should Sublessee fail to remove such alterations, improvements, or modifications
and so restore the Subleased Premises on termination of this Sublease unless instructed otherwise
in writing as set forth above, Sublessor shall have the right to do so, and charge Sublessee for
its reasonable out-of-pocket costs therefor, plus a service charge of ten percent (10%) of the costs
incurred by Sublessor. Sublessor shall remain obligated, at Sublessor’s sole cost an expense, to
remove, to the extent required by Master Lessor, any alterations, improvements, or modifications
existing in and upon the Subleased Premises as of the
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Commencement Date and to restore the Subleased Premises with respect thereto as required by the
Master Lease. Sublessee shall give access to Sublessor to start this work during the last thirty
(30) days of the term of this Sublease, so that Sublessor and Sublessee can do their respective
surrender work together. Sublessor will not unreasonably interfere with Sublessee’s use and
occupancy including its surrender condition work, except for the last 15 days of the Sublease
term, at which point Sublessor will be allowed to do whatever removal and restoration work it is
required by Master Lessor per the terms of the Master Lease. Base Rent will be abated if
Sublessor’s work during the last 15 days of the Term prevent Sublessee from occupying the Sublease
Premises or doing any of Sublessee’s surrender obligation work.
7.3 Initial Improvements. Sublessor will provide Sublessee with an initial
improvement allowance in an amount not to exceed Seven Hundred and Fifty Thousand Dollars
($750,000,00) (the “Allowance”). The proceeds of the Allowance shall be used by Sublessee solely
for the costs of building improvements subject to the approval of the Master Lessor (“Initial
Improvements”) which Sublessee agrees to complete in a timely manner, and may not be used for any
other purpose, including, without limitation for furniture, fixtures and equipment, Sublessee will
construct (or cause to be constructed) such Initial Improvements in accordance with the terms of
this Sublease and the Master Lease. Sublessor will make payment of all or a portion of the
Allowance to Sublessee within 30 days of receipt from Sublessee of a request for payment including
documentation of substantial completion of construction and Final construction costs and invoices
related thereto satisfactory to Sublessor, in “Sublessor’s reasonable discretion, provided
Sublessee is not in default of the terms of this Sublease beyond any applicable notice and cure
period. The documentation may take the form of, but not be limited to the following: (1) a
certificate from Sublessee’s architect; and (2) a waiver(s) of all liens for work performed by
Sublessee at the Subleased Premises. Sublessor shall be entitled to retain any portion of the
Allowance not required to reimburse Sublessee for the Initial Improvements, as referenced above, if
such improvements are not completed in accordance with the provisions of this Sublease or if
Sublessee defaults on its obligations under this Sublease, With the exception only of Sublessor’s
obligation to fund the Allowance as that obligation is conditioned and limited by this Sublease,
Sublessee hereby acknowledges and agrees that Sublessor shall not be responsible for payment for or
performance of any work or improvements necessary for Sublessee’s use and/or occupancy of the
Subleased Premises.
7.4 Repayment of the Allowance to Sublessor. The Allowance is being given with the
agreement by Sublessee that Sublessee will pay back the allowance to Sublessor in 35 equal payments
of Twenty-two Thousand Dollars ($22,000.00) per month ($770,000 in total) to Sublessor starting on
the Commencement Date. The first payment will be due on the Commencement Date and then the first
day of each month thereafter. If the Sublease Term ends before 35 payments of $22,000.00 each have
been made to Sublessor, then any remaining payments will be due as a lump sura payment upon
Sublease termination. This repayment as set forth in this Section will be additional rent.
7.5 Parking. So long as Sublessee is not in default beyond any applicable notice and
cure period and subject to the rules and regulations imposed from time to time by Master Lessor,
Sublessee shall have the right to use the same parking as granted to Sublessor under the Master
Lease.
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ARTICLES 8
ASSIGNMENT, SUBLETTING & ENCUMBRANCE
8.1 Consent Required. Except as otherwise provided herein, Sublessee shall not assign
this Sublease or any interest therein nor shall Sublessee sublet, license, encumber or permit the
Subleased Premises or any part thereof to be used or occupied by others, without Sublessor’s and
Master Lessor’s prior written consent. Sublessor’s consent shall not be unreasonably withheld,
conditioned or delayed provided, however, Sublessor’s withholding of consent shall in all events be
deemed reasonable if for any reason Master Lessor’s consent is both required and not obtained.
Paragraph 19 of the Master Lease is fully incorporated herein except that any reference to Landlord
shall mean Master Lessor. The consent by Sublessor and Master Lessor to any assignment or
subletting shall not waive the need for Sublessee and Sublessee’s assignee or subtenant) to obtain
the consent of Sublessor and Master Lessor to any different or further assignment or subletting.
All conditions and standards set forth in the Master Lease regarding assignments and subletting
shall apply, and to the extent there is any Bonus Rents, (Rent paid by such Assignee or
SubSublessee in excess of Rent paid by Sublessee hereunder) the Bonus Rent shall first be split per
the Master Lease if there is any Bonus Rent owed per the Master Lease, and any Bonus Rent to go to
Sublessee shall be split 50/50 with Sublessor to be paid to Sublessor within five (5) days of
receipt by Sublessee. Any Bonus Rent for the Rent under this Sublease that is not a Bonus Rent
under the Master Lease shall be split 50/50 with Sublessor, except if there is a Sub-sublease
during the free rent period, then all Sub-sublease Rent shall be paid to Sublessor during the free
rent period under the Sublease, and all payments owed Sublessor will be paid within five (5) days
of receipt by Sublessee. Notwithstanding the foregoing, but subject to the provisions of the Master
Lease requiring Master Lessor’s consent thereto, Sublessee shall, without being required to seek or
obtain Sublessor’s prior consent, have the right to assign this Sublease or sublet all or any
portion of the Subleased Premises (each, a ‘Transfer”) to any entity (a) Sublessee controls, is
controlled by, or is commonly controlled with Sublessee, (b) that results from a merger or
consolidation with Sublessee or (c) that acquires all or substantially all of the ownership
interests or assets of Sublessee as a going concern (“Affiliate”), provided in each case that the
Affiliate fully assumes the duties of Sublessee under the Sublease and the Affiliate has a net
worth as of the date of the Transfer equal to or greater than that of Sublessee just before the
date of the Transfer. Sublessee shall give notice to Sublessor of such Transfer with thirty (30)
days after such Transfer.
8.2 Form of Document. Every assignment, agreement, or sublease shall (i) recite that
it is and shall be subject and subordinate to the provisions of this Sublease, that the assignee or
subtenant assumes Sublessee’s obligation hereunder, that the termination of this Sublease shall at
Sublessor’s sole election, constitute a termination of every such assignment or sublease, and (ii)
contain such other terms and conditions as shall be reasonably requested or provided by Sublessor’s
attorneys.
8.3 No Release of Sublessee. Regardless of Sublessor’s consent, no subletting or
assignment shall release Sublessee of Sublessee’s obligation or alter the primary liability of
Sublessee to pay the Rent and to perform all other obligations to be performed by Sublessee
hereunder. The acceptance of Rent by Sublessor from any other person shall not be deemed to be a
waiver by Sublessor of any provision hereof. In the event of default by any assignee, subtenant
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or any other successor of Sublessee, in the performance of any of the terms hereof, Sublessor may
proceed directly against Sublessee without the necessity of exhausting remedies against such
assignee, subtenant or successor.
ARTICLE 9
DEFAULT
9.1 Default Described. The occurrence of any of the following shall constitute a
material breach of this Sublease and a default by Sublessee: (i) failure to pay Rent or any other
amount within three (3) business days after due; (ii) all those items of default set forth in the
Master Lease which remain uncured after the cure period provided in the Master Lease; or (iii)
Sublessee’s failure to perform timely and subject to any applicable notice and cure periods any
other material provision of this Sublease or the Master Lease as incorporated herein.
9.2 Sublessor’s Remedies. Sublessor shall have the remedies set forth in the Master
Lease as if Sublessor is Master Lessor. These remedies are not exclusive; they are cumulative and
in addition to any remedies now or later allowed by law.
9.3 Sublessee’s Right to Possession Not Terminated. Sublessor has the remedy
described in California Civil Code Section 1951.4 (lessor may continue lease in effect after
lessee’s breach and abandonment and recover rent as it becomes due, if lessee has right to sublet
or assign, subject only to reasonable limitations). Sublessor may continue this Sublease in full
force and effect, and Sublessor shall have the right to collect rent and other sums when due.
During the period Sublessee is in default, Sublessor may enter the Subleased Premises and relet
them, or any part of them, to third parties for Sublessee’s account and alter or install locks and
other security devices at the Subleased Premises. Sublessee shall be liable immediately to
Sublessor for all costs Sublessor incurs in reletting the Subleased Premises, including, without
limitation, attorneys’ fees, brokers’ commissions, expenses of remodeling the Subleased Premises
required by the reletting, and like costs. Reletting may be for a period equal to, shorter or
longer than the remaining term of this Sublease and rent received by Sublessor shall be applied to
(i) first, any indebtedness from Sublessee to Sublessor other than rent due from Sublessee; (ii)
second, all costs incurred by Sublessor in reletting, including, without limitation, brokers’ fees
or commissions and attorneys fees, the cost of removing and storing the property of Sublessee or
any other occupant, and the costs of repairing, altering, maintaining, remodeling or otherwise
putting the Subleased Premises into condition acceptable to a new Sublessee or Sublessees; (iii)
third, rent due and unpaid under this Sublease. After deducting the payments referred to in this
subsection 9.3, any sum remaining from the rent Sublessor receives from reletting shall be held by
Sublessor and applied in payment of Mure rent and other amounts as rent and such amounts become due
under this Sublease. In no event shall Sublessee be entitled to any excess rent received by
Sublessor.
9.4 All Sums Due and Payable as Rent. Sublessee shall also pay without notice, or
where notice is required under this Sublease, immediately upon demand without any abatement,
deduction, or setoff, as additional rent all sums, impositions, costs, expenses, and other payments
which Sublessee in any of the provisions of this Sublease assumes or agrees to pay, and, in ease of
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any nonpayment thereof, Sublessor shall have, in addition to all other rights and remedies, all
the rights and remedies provided for in this Sublease or by law in
the case of nonpayment of rent.
9.5 No Waiver. Sublessor may accept Sublessee’s payments without waiving any rights
under the Sublease, including rights under a previously served notice
of default. No payment by
Sublessee or receipt by Sublessor of a lesser amount than any installment of rent due or other sums
shall be deemed as other than a payment on account of the amount due, nor shall any endorsement or
statement on any check or accompanying any check or payment be deemed an accord and satisfaction;
and Sublessor may accept such check or payment without prejudice of Sublessor’s right to recover
the balance of such rent or other sum or pursue any other remedy provided in this Sublease, at law
or in equity. If Sublessor accepts payments after serving a notice of default, Sublessor may
nevertheless commence and pursue an action to enforce rights and remedies under the previously
served notice of default without giving Sublessee any further notice or demand, furthermore, the
Sublessor’s acceptance of rent from Sublessee when the Sublessee is holding over without express
written consent does not convert Sublessee’s tenancy from a tenancy at sufferance to a
month-to-month tenancy. No waiver of any provision of this Sublease shall be implied by any failure
of Sublessor to enforce any remedy for the violation of that provision, even if that violation
continues or is repeated. Any waiver by Sublessor of any provision of this Sublease must be in
writing. Such waiver shall affect only the provisions specified and only for the time and in the
manner stated in the writing. No delay or omission in the exercise of any right or remedy by
Sublessor shall impair such right or remedy or be construed as a
waiver thereof by Sublessor. No
act or conduct of Sublessor, including, without limitation the acceptance of keys to the Subleased
Premises shall constitute acceptance or the surrender of the Subleased Premises by Sublessee before
the Expiration Date. Only written notice from Sublessor to Sublessee of acceptance shall
constitute such acceptance or surrender of the Subleased Premises. Sublessor’s consent to or
approval of any act by Sublessee which requires Sublessor’s consent or approval shall not be deemed
to waive or render unnecessary Sublessor’s consent to or approval of any subsequent act by
Sublessee.
9.6 Sublessor Default. For purposes of this Sublease, Sublessor shall not be deemed in
default hereunder unless and until Sublessee shall first deliver to Sublessor thirty (30) days’
prior written notice, and Sublessor shall fail to cure said default within said thirty (30) day
period, or in the event Sublessor shall reasonably require in excess of thirty (30) days to cure
said default, shall fail to commence said cure with said thirty (30) day period, and thereafter
diligently to prosecute the same to completion.
9.7 Notice of Event of Default under Master Lease. Sublessor shall notify Sublessee of
any Event of Default under the Master Lease, or of any other event of which Sublessor has actual
knowledge which will impair Sublessee’s ability to conduct its normal business at the Subleased
Premises, as soon as reasonably practicable following Sublessor’s receipt of notice from Master
Lessor of an Event of Default or Sublessor’s actual knowledge of such impairment.
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ARTICLE 10
CONSENT OF MASTER LESSOR
10.1 Precondition. The Master Lease requires that Sublessor obtain the consent of
Master Lessor to any subletting by Sublessor. This Sublease shall not be effective unless and until
Master Lessor executes and delivers a consent to this Sublease in the form satisfactory to
Sublessor and Sublessee. If Master Lessor refuses to so consent to this Sublease, or fails to do so
within thirty (30) days after the Effective Date, then upon written notice from either party hereto
to the other given prior to the delivery of such consent, this Sublease shall terminate; provided
Sublessor shall promptly refund the Security Deposit and any prepaid Rent to Sublessee.
ARTICLE 11
HAZARDOUS MATERIALS
11.1 Hazardous Materials. Notwithstanding anything contained herein or in the Master
Lease to the contrary, Sublessee shall not store, use, or dispose of any Hazardous Material (as
such is defined in the Master Lease) on, under, or about the Subleased Premises without Sublessor’s
prior consent and then in conformance with Paragraph 52 of the
Master Lease.
11.2 Indemnity by Sublessee. Sublessee shall be solely responsible for and shall
defend, indemnify and hold Sublessor and its partners, officers, directors, employees and agents
harmless from and against all claims arising out of or caused in whole or in part, directly or
indirectly, by or in connection with its storage, use, disposal or discharge of Hazardous Materials
whether in violation of this section or not, or Sublessee’s failure to comply with any Hazardous
Materials law. Sublessee shall further be solely responsible for and shall defend, indemnify and
hold Sublessor harmless from and against any and all claims arising out of or in connection with
the removal, cleanup, detoxification, decontamination and restoration work and materials necessary
to return the Subleased Premises to their condition existing prior to Sublessee’s storage, use or
disposal of the Hazardous Materials on the Subleased Premises. For the purposes of the indemnity
provisions hereof, any acts or omissions of Sublessee or by employees, agents, assignees,
contractors or subcontractors of Sublessee (whether or not they are negligent, intentional or
unlawful) shall be strictly attributable to Sublessee. Sublessee’s obligations under this section
shall survive the termination of this Sublease.
11.3 Indemnity by Sublessor. Sublessor shall give to Sublessee the same indemnity
given by Sublessor to Master Lessor in Paragraph 52 of the Master Lease and only per the terms of
Paragraph 52 of the Master Lease as incorporated herein.
ARTICLE 12
MISCELLANEOUS
12.1
Conflict with Master Lease; Interpretation. In the event of any conflict between
the provisions of the Master Lease and this Sublease, the Master Lease shall govern and control
except to the extent directly contradicted by the terms of this Sublease in which event the terms
of
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this
Sublease shall control as between Sublessor and Sublessee. No presumption shall apply in the
interpretation or construction of this Sublease as a result of Sublessor having drafted the whole
or any part hereof.
12.2 Remedies Cumulative. The rights, privileges, elections, and remedies of Sublessor
in this Sublease, at law, and in equity are cumulative and not
alternative.
12.3 Waiver of Redemption. Sublessee hereby expressly waives any and all rights of
redemption to which it may be entitled by or under any present or future laws in the event
Sublessor shall obtain a judgment for possession of the Subleased
Premises.
12.4 Damage and Destruction; Condemnation. In the event of any damage, destruction,
casualty, condemnation or threat of condemnation affecting the Subleased Premises, Rent payable
hereunder shall be abated but only to the extent that Rent is abated under the Master Lease with
respect to the Subleased Premises, Sublessee shall have no right to terminate this Sublease in
connection with any damage, destruction, casualty, condemnation or threat of condemnation except to
the extent the Master Lease is also terminated as to the Subleased Premises or any portion thereof.
12.5
Signage. Sublessee shall not place any signs on or about the Subleased Premises without
Sublessor’s and Master Lessor’s prior written consent, except that throughout the term of this
Sublease, Sublessee shall be entitled to all of Sublessor’s
signage rights under the Master Lease.
All signs shall be at Sublessee’s sole cost and shall comply with the terms of the Master Lease and
with all local, federal and state rules, regulations, statutes, and ordinances at all times during
the term hereof. Sublessee, at Sublessee’s cost, shall remove all such signs and graphics prior to
the termination of this Sublease and repair any damage caused by such removal.
12.6 Offer. Preparation of this Sublease by either Sublessor or Sublessee or either
parties’ agent and submission of same to Sublessor or Sublessee shall not be deemed an offer to
Sublease. This Sublease is not intended to be binding until executed and delivered by all parties
hereto.
12.7 Due Authority. Each of the persons executing this Sublease on behalf of Sublessee
and Sublessor represent and warrant that they have the authority to bind Sublessee or Sublessor, as
applicable, Sublessee has been and is qualified to do business in the State of California, that the
corporation has full right and authority to enter into this Sublease, and that all persons signing
on behalf of the corporation were authorized to do so by appropriate corporate actions.
12.8 Multiple Counterparts. This Sublease may be executed in two or more
counterparts, which when taken together shall constitute one and the same instrument. The parties
contemplate that they may be executing counterparts of this Sublease transmitted by facsimile and
agree and intend that a signature by facsimile machine shall bind the party so signing with the
same effect as though the signature were an original signature.
12.9 Building Contaminants. To prevent the contamination, growth, or deposit of any
mold, mildew, bacillus, virus, pollen, or other micro-organism (collectively, “Biologicals”) and
the deposit, release or circulation of any indoor contaminants including emissions from paint,
carpet and drapery treatments, cleaning, maintenance and construction materials and supplies,
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pesticides, pressed wood products, insulation, and other materials and products (collectively with
Biologicals, “Contaminants”) that could adversely affect the health, safety or welfare of any
tenant, employee, or other occupant of the Building or their invitees
(each, an “Occupant”),,
Sublessee shall, at Sublessee’s sole cost and expense, at all times during the term hereof (1)
operate the Subleased Premises in such a manner to reasonably prevent or minimize the accumulation
of stagnant water and moisture in planters, kitchen appliances and vessels, carpeting, insulation,
water coolers, and any other locations where stagnant water or moisture could accumulate, and (2)
otherwise operate the Subleased Premises in such a manner to reasonably prevent or minimize the
generation, growth, deposit, release or circulation of any Contaminants.
12.10 Entire Agreement. This Sublease contains all of the covenants, conditions and
agreements between the parties concerning the Subleased Premises, and shall supersede all prior
correspondence, agreements and understandings concerning the Subleased Premises, both oral and
written. No addition or modification of any term or provision of this Sublease shall be effective
unless set forth in writing and signed by both Sublessor and Sublessee.
12.11 Sublessor’s Warranties and Representations. Sublessor warrants and represents to
Sublessee that the Master Lease attached hereto as Exhibit “B” is a true, correct and complete copy
of the Master Lease, that there are no defaults thereunder by Sublessor or Master Lessor or facts
which, with the giving of notice, or passage of time or both could ripen into a default thereunder,
there have been no further amendments to the Master Lease except as referenced herein and attached
hereto, and that there are no other agreements or understandings between Sublessor and Master
Lessor with respect to the Subleased Premises.
12.12
Captions. All captions and headings in this Sublease are for the purposes of
reference and convenience and shall not limit or expand the provisions of this Sublease.
12.13
Guaranty of Sublease. The effectiveness of this Sublease is conditioned upon
the execution by Cisco Systems, Inc., and the delivery’ to Sublessor, of the Guaranty of Sublease
in the form attached hereto as Exhibit “E”.
ARTICLE 13
BROKER’S COMMISSIONS
13.1 Commission. Sublessor and Sublessee represent and warrant to each other that
each has dealt with the following brokers; Colliers International (Sublessor’s Broker) and CRESA
Partners (Sublessee’s Broker), and with no other agent, finder, or other such person with respect
to this Sublease and each agrees to indemnify and hold the other harmless from any claims asserted
against the other by any broker, agent, finder, or other such person not identified above as
Sublessor’s Broker or Sublessee’s Broker. All commissions and fees payable to the Brokers with
respect to the transaction contemplated by this Sublease shall be paid by Sublessor pursuant to
separate agreement.
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ARTICLE 14
NOTICES AND PAYMENTS
14.1 Certified Mail. Any notice, demand, request, consent, approval, submittal or
communication that either party desires or is required to give to the other party or any other
person shall be in writing and either served personally or sent by prepaid, first-class certified
mail or commercial overnight delivery service. Such Notice shall be effective on the date of actual
receipt (in the case of personal service or commercial overnight delivery service) or two days
after deposit in the United Stales mail, to the following addresses:
| To the Sublessor: | Selectica, Inc. | |||
| 0000 Xxxxxxxxxx Xxxxx, Xxxxx 000 | ||||
| Xxx Xxxx, XX 00000 | ||||
| Attention: Xxxx Xxxxxxxxxx | ||||
| with a copy to: | Xxxxxxx & Xxxxxx | |||
| 00 Xxxxx Xxxxx Xxxxxx | ||||
| Xxx Xxxx, XX 00000 | ||||
| Attention: Xxxxx X. Xxxxxxx | ||||
| To the Sublessee: | At the Subleased Premises, whether or not Sublessee has | |||
| abandoned or vacated the Subleased Premises or notified | ||||
| the Sublessor of any other address | ||||
| with a copy to: | Cisco Systems, Inc. | |||
| 000 Xxxx Xxxxxx Xxxxx | ||||
| Xxx Xxxx, XX 00000-0000 | ||||
| Attention: Director, Worldwide Real Estate |
14.2 When this Sublease requires service of a notice, that notice shall replace rather than
supplement any equivalent or similar statutory notice, including any notices required by Code of
Civil Procedure Section 1161 or any similar or successor statute. When a statute requires service
of a notice in a particular manner, service of that notice (or a similar notice required by this
Sublease) shall replace and satisfy the statutory service-of-notice procedures, including those
required by Code of Civil Procedure Section 1162 or any similar or successor statute
ARTICLE 15
ATTORNEYS’
FEES AND COSTS
15.1 Sublessor Made Party to Litigation. If Sublessor becomes a party to any
litigation brought by someone other than Sublessee and concerning this Sublease, the Subleased
Premises, or Sublessee’s use and occupancy of the Subleased Premises to the extent, based upon any
real or alleged act or omission of Sublessee or its authorized representatives, Sublessee shall be
liable to Sublessor for reasonable attorneys’ fees and court costs incurred by Sublessor in the
litigation,
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15.2 Certain Litigation Between the Parties. In the event any action or
proceeding at law or in equity or any arbitration proceeding be instituted by either party,
for an alleged breach of any obligation of Sublessee under this Sublease, to recover rent, to
terminate the tenancy of Sublessee at the Subleased Premises, or to enforce, protect, or
establish any right or remedy of a party to this Sublease Agreement, the prevailing party (by
judgment or settlement) in such action or proceeding shall be entitled to recover as part of
such action or proceeding such reasonable attorneys’ fees, expert witness fees, and court
costs as may be fixed by the court or jury, but this provision shall not apply to any
cross-complaint filed by anyone other than Sublessor in such action or proceeding.
ARTICLE 16
EXHIBITS
16.1 Exhibits and Attachments. All exhibits and attachments to this Sublease
are a part hereof
IN WITNESS WHEREOF, Sublessor and Sublessee have executed and delivered this Sublease
on the date first set forth above.
| SUBLESSOR | SUBLESSEE | |||||||||
| SELECTICA, INC, | NUOVA SYSTEMS, INC., | |||||||||
| a Delaware corporation | a Delaware corporation | |||||||||
By:
|
/s/ Xxxxxxx Xxxxxxx
|
By: | /s/ Xxxxxxx
|
|||||||
Name:
|
XXXXXXX XXXXXXX
|
Name: | XXXXXXX
|
|||||||
Its:
|
CEO
|
Its: | CEO/CFO
|
|||||||
By:
|
/s/ Xxxx Roeschein
|
By: | /s/ Xxxx Xxxxxxxx
|
|||||||
Name:
|
XXXX ROESCHEIN
|
Name: | XXXX XXXXXXXX
|
|||||||
Its:
|
CFO
|
Its: | VICE PRESIDENT
|
|||||||
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EXHIBIT “A”
INTENTIONALLY DELETED
A - 1
EXHIBIT “B”
COPY OF MASTER LEASE
B - 1
EXHIBIT “C”
INTENTIONALLY DELETED
C - 1
EXHIBIT “D”
FORM OF MASTER LESSOR CONSENT
D - 1
