Exhibit 10.71
SUBLEASE
THIS SUBLEASE (this "Sublease") is dated for reference purposes as of
March 30, 2003 and is made by and between Family Life World Outreach a
California non-profit corporation ("Sublessee"); and MTI Technology, a Delaware
corporation ("Sublessor").
R E C I T A L S:
This Sublease is made with reference to the following facts:
A. Westport Joint Venture, a California joint venture, as
landlord (the landlord under the Master Lease is herein called
the "Master Lessor"), and MTI, Inc., a Delaware corporation,
as tenant, entered into that certain Lease Agreement, dated as
of June 15, 2001 (the "Master Lease") with respect to a
portion of that certain one story office building located at
000 Xxxxxxx Xxxxx, Xxxxxxxxx California. A true, correct and
complete copy of the Master Lease is attached hereto as
Exhibit "A" and incorporated by reference herein. Sublessor is
currently the original tenant under the Master Lease.
B. Pursuant to the Master Lease, the Premises leased thereunder
encompasses approximately 7000 square feet (a portion of the
entire facility at 000 Xxxxxxx Xxxxxx, Xxxxxxxxx, which
consists of approximately 22,000 + or - square feet.
C. Sublessee wishes to sublease the Premises. Sublessor wishes to
sublease the Premises to Sublessee on the terms and conditions
contained herein.
Accordingly, in consideration of the mutual promises contained herein
and for other good and valuable consideration, receipt of which is hereby
acknowledged, the parties hereto agree as follows:
1. Premises: Subject to the condition precedent contained in
Section 10, below, Sublessor hereby subleases to Sublessee, and Sublessee hereby
subleases from Sublessor the Premises on the terms and conditions contained
herein. All capitalized terms in this Sublease shall have the meaning ascribed
to them in the Master Lease unless otherwise defined herein.
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2. Term:
2.1 Term: The term (the "Term") of this Sublease shall be
for a period commencing on May 1, 2003, and Sublessor has delivered possession
of the Premises to Sublessee (the "Commencement Date"). The Term shall end,
without notice, on January 30, 2006 (the "Expiration Date"), unless this
Sublease is sooner terminated pursuant to its terms or unless the Master Lease
is sooner terminated pursuant to its terms. If for any reason the Commencement
Date has not occurred on or before May 1, 2003, then this Sublease shall
automatically be void and of no force or effect. On any such termination,
neither Sublessor nor Sublessee shall have any rights against or obligations to
the other, provided that Sublessor shall return to Sublessee any monies
previously paid by Sublessee to Sublessor hereunder.
2.2 No Option to Extend: Sublessee hereby acknowledges
that: (i) the expiration date of the Master Lease is June 30, 2006, (ii)
Sublessor has no option whatsoever to extend the Term of the Master Lease, and
(iii) Sublessee must vacate the Premises fully and completely on or before
January 30, 2006.
3. Rent:
3.1 Base Rent: Sublessee shall pay to Sublessor the rent
("Base Rent") for the Premises in the following amounts:
Months Amount
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1-38 ($6,000.00)
Sublessor and Sublessee agree that for all purposes under this Sublease, the
Premises contains approximately Seven Thousand (7,000) square feet of rentable
area. Base Rent shall be paid in advance prior to occupancy. To the extent, if
any, that Base Rent payable by Sublessor for the Premises is abated by Master
Lessor under the Master Lease for any period(s) during the Sublease Term,
Sublessee shall be entitled to an abatement of Base Rent in the same percentage
amount.
3.2 Additional Rent: This Sublease is a Gross lease and
it is the intent of the parties hereto that Sublessee shall have no costs,
expenses or payments whatsoever in connection with the Premises or the Master
Lease, and that all such costs, expenses and payments shall be the
responsibility of Sublessor including utilities. Sublessee shall be responsible
for Janitorial.
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4. Master Lease:
4.1 Incorporation of Master Lease: The terms, conditions
and respective obligations of Sublessor and Sublessee to each other under this
Sublease shall be the terms of the Master Lease, except as modified in this
Section 4, or as otherwise set forth in this Sublease, and except that: (a)
wherever in the Master Lease the word "Tenant" appears, for the purposes of this
Sublease, the word "Sublessee" shall be substituted; (b) wherever in the Master
Lease the word "Lease" appears, for the purposes of this Sublease, the word
"Sublease" shall be substituted; and (c) wherever in the Master Lease the word
"Landlord" appears, for the purposes of this Sublease, the word "Sublessor"
shall be substituted. Sublessee hereby acknowledges that it has read and is
familiar with the terms of the Master Lease and agrees that this Sublease is
subordinate and subject to the Master Lease, and that any termination of the
Master Lease shall likewise terminate this Sublease.
Termination of Master Lease: If Master Lessor and
Sublessor jointly and voluntarily elect, for any reason whatsoever, to terminate
the Master Lease prior to the scheduled Master Lease termination date, then this
Sublease (if then still in effect) shall terminate concurrently with the
termination of the Master Lease given 30 days written notice. In the event of
the Master Lease termination, Sublessee shall be compensated by Sublessor the
unused portion of prepaid rental.
4.2 Time Allowances; Consents: With respect to any
obligation of Sublessee to be performed under this Sublease, wherever the Master
Lease grants to Sublessor a specified number of days to perform its obligations
under the Master Lease, except as otherwise provided herein, Sublessee shall
have the same number of days to perform the obligation, including, without
limitation, curing any defaults.
4.3 Use: Sublessee may use the Premises only for those
uses permitted under the Master Lease including personal counseling, and in no
event for any use prohibited or restricted by the Master Lease or by law.
Sublessee shall not commit or permit to be committed on the Premises any act or
omissions which shall violate any term or condition of the Master Lease.
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5. Right to Cure Defaults:
5.1 Sublessee's Rights: If Sublessor fails to perform any
act on its part to be performed by Sublessor hereunder, then Sublessee may, but
shall not be obligated to, after thirty (30) days after the date of Sublessee's
written notice to Sublessor identifying the failure, and after the passage of
any notice and cure periods, and subject to the terms of the Master Lease,
perform such act. All such sums paid, and all reasonable costs and expenses of
performing any such act, shall be payable promptly by Sublessor to Sublessee,
together with interest thereon at the Interest Rate from the date of the
expenditure until repaid.
6. Deposit: Sublessee shall pay Sublessor a security deposit in
the amount of $6,000.00 upon execution of this Sublease agreement.
7. Broker: Sublessor and Sublessee each represent to the other
that they have dealt with no real estate brokers other than Vandermade. Each
party agrees to hold the other party harmless from and against all claims for
brokerage commissions, finder's fees or other compensation made by any other
agent, broker, salesman or finder as a consequence of said party's actions or
dealings with such agent, broker, salesman, or finder.
8. Authority to Execute: Sublessee and Sublessor each represent
and warrant to the other that each person executing this Sublease on behalf of
each party is duly authorized to execute and deliver this Sublease on behalf of
that party.
9. Intentionally Deleted.
10. Intentionally Deleted
11. As-Is:
11.1 No Warranties: Sublessor has made no representations
or warranties of any kind, whether express or implied, as to the condition of
the Premises, the Building, the Complex or any other property, or the
suitability of the Premises for Sublessee's activities. Sublessee acknowledges
that prior to signing this Sublease, it has had the opportunity to inspect and
research the Building and the Premises, and to contact the Master Lessor in
order to independently satisfy itself as to the condition of same, including
without limitation, the presence or absence of Hazardous Materials. Sublessee
enters and agrees to use the Premises at its own risk, "as is", and subject to
any defects (whether patent or latent, known or unknown). Sublessee waives and
disclaims all warranties with respect to the Premises and the Building and the
Complex, whether express or implied, and assumes the risk that its inspections
and inquiry of the Master Lessor did not reveal adverse or unexpected
conditions.
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12. Sublease and Assignment: Pursuant to the restrictions of the
Master Lease, Sublessee may not sublease or assign all or any portion of this
Sublease. Any such Sublease or assignment shall be null, void and of no force or
effect. Sublessor and Sublessee acknowledge that this prohibition on subleasing
and assignment is required specifically by Master Lessor. Sublessor and
Sublessee recognize the difficulties that such a prohibition by Master Lessor
could cause if Sublessee desires to consolidate or merge. Therefore, if: there
shall occur (1) any assignment, merger or consolidation or other reorganization
of or affecting Sublessee and if Sublessee is not the surviving corporation; or
(2) any involuntary assignment or sublease by reason of corporate
reorganization, assignment, merger, consolidation, or for any other reason, then
unless Master Lessor's and Sublessor's advance written consents are obtained
(which consents may be withheld at their sole discretions), then this Sublease
shall terminate on the occurrence of any of the foregoing events.
13. Furniture: The Premises shall be delivered to Sublessee with
the assets listed on Exhibit "B" attached hereto. During the Sublease Term, none
of the assets listed on Exhibit "B" may be removed by Sublessee from the
Premises at any time and at the end of the term said assets shall be delivered
by Sublessee to Sublessor in the condition in which they were delivered to
Sublessee, reasonable wear and tear excepted.
14. Surrender: Notwithstanding the incorporation of Section 8 of
the Master Lease, on expiration of the Term of this Sublease, or on any other
termination of this Sublease, Sublessee shall not be required to remove any
tenant improvements in or alterations to the Premises that were installed in the
Premises prior to the Commencement Date.
15. Termination Payment. If Master Lessor and Sublessor jointly
and voluntarily elect to terminate the Master Lease and this Sublease as
described in Section 4.2, above, then as of the termination, then Sublessor
shall pay to Sublessee a termination payment equal to the unused rental as of
the date of termination. If the Master Lease is terminated by reason of
Sublessor's breach thereof, and if such breach is in no way related to or
connected with a breach of this Sublease by Sublessee, and if after Master Lease
termination the Master Lessor requires Sublessee to continue its tenancy under
this Sublease at the Basic Rent paid by Sublessor under the Master Lease, then
Sublessor shall pay to Master Lessor on a monthly basis, as and when due, the
difference between the Basic Rent under the Master Lease and the Base Rent under
this Sublease for the remaining term of this Sublease (or if earlier, its
termination for any reason).
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16. Miscellaneous:
16.1 Entire Sublease; Amendment: This Sublease (which
includes all exhibits hereto) embodies the entire Sublease and understanding
between the parties relating to the subject matter hereof, and all prior
negotiations, agreements and understandings, oral or written, are hereby
revoked, cancelled and rescinded and are all merged herein and superseded
hereby. Any amendment to this Sublease, including, without limitation, any oral
modification supported by new consideration, must be reduced to writing and
signed by both parties in order to be effective.
16.2 Counterparts; Waiver: This Sublease may be executed
in two or more counterparts, each of which shall be deemed to be an original,
but all of which together shall constitute one and the same instrument. Any
waiver of the performance of any covenant, condition or promise by either party,
in order to be effective, must be in a writing signed by the party who has
allegedly waived the covenant, condition or promise in question.
16.3 Severability: Should any part, term or provision of
this Sublease or any document required herein to be executed or delivered be
declared invalid, void or unenforceable, all remaining parts, terms and
provisions hereof shall remain in full force and effect and shall in no way be
invalidated, impaired or affected thereby.
16.4 Interpretation: The neuter gender includes the
feminine and masculine, and vice-versa, and the singular number includes the
plural. The word "person" includes, in addition to any natural person, a
corporation, partnership, firm, trust, association, governmental body or other
entity. Whether expressly stated or not in this Sublease, any indemnification,
release, waiver, hold harmless, covenant to protect or covenant to defend made
in this Sublease by one party in favor of the other party shall benefit not only
such other party but each and all of its officers, directors, agents, employees,
successors and assigns. The captions of the sections of this Sublease are for
convenience and reference only, and the words contained therein shall in no way
be held to explain, modify, or aid in the interpretation, construction or
meaning of the provisions of this Sublease.
16.5 Attorneys' Fees: In the event that any suit in law or
equity, arbitration or other formal proceeding is instituted by either party to
enforce or interpret any part of this Sublease, or to recover damages for breach
thereof, the prevailing party shall be entitled to recover costs of suit
incurred therein, and to also recover as an element of such costs (or as
damages, only if not allowed as costs), a reasonable attorney fee to be fixed by
the presiding tribunal. A party not entitled to recover costs shall not recover
attorney fees. No sum of attorney fees shall be included in any computation of
the amount of judgment or award for purposes of determining whether a party is
entitled to recover costs of attorney fees.
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16.6 Construction: The parties hereto agree that each
party and its counsel or advisor have reviewed and revised this Sublease and
that any rule of construction to the effect that ambiguities are to be resolved
against the drafting party shall not apply in the interpretation of this
Sublease or any amendments or exhibits hereto.
16.7 Notice: Any notice, demand, request, consent,
approval, or communication that either party desires or is required to give to
the other party or any other person shall be in writing and served personally,
sent by certified first-class mail, return receipt requested or sent by a
commercial overnight courier service (e.g. FedEx). Any notice, demand, request,
consent, approval or communication that either party desires or is required to
give to the other party shall be addressed to the other party at the address set
forth below:
If to Sublessee:
Prior to Commencement Date:
Family Life World Outreach
0000 Xxxx Xxxxxx, xxxxx 000
Xxx Xxxx, XX 00000
Attn: Xxxxxxxx Xxxxxxx
After Commencement Date:
Family Life World Outreach
000 Xxxxxxx Xxxxxx xxxxx X
Xxxxxxxxx, XX 00000
Attn: Xxxxxxxx Xxxxxxx
If to Sublessor:
MTI Corporation
00000 Xxxxxxxx Xxxxxx
Xxxxxx, Xx 00000
Either party may change its address by notifying the other party of the change
of address. Notices shall be effective when received or refused, as evidenced by
return receipt or courier's receipt slip.
16.8 Limitation of Liability: No personal liability or
personal responsibility is assumed by, or shall at any time be asserted or
enforceable against, Sublessor's or Sublessee's respective directors, officers,
employees, consultants or advisors on account of this Sublease or on account of
any covenant, undertaking or agreement of Sublessor or Sublessee contained in
this Sublease.
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16.9 Sublessor's Covenants: Notwithstanding anything to
the contrary in this Sublease, so long as Sublessee is not in default under this
Sublease, Sublessor shall: (1) not modify, amend or waive any provisions thereof
or make any election, exercise any option, right or remedy, or grant any consent
or approval thereunder which would affect Sublessee's interests under this
Sublease without, in each instance, Sublessee's prior written consent; and (2)
pay the rent due and perform all of Sublessor's obligations under the Master
Lease, except to the extent that Sublessee is obligated to perform such
obligations under this Sublease. Sublessor shall (a) upon Sublessee's written
request, notify Master Lessor of its nonperformance under the Master Lease and
request that Master Lessor perform its obligations under the Master Lease.
16.10 Sublessor's Representations and Warranties: Sublessor
represents and warrants that to the best of its actual knowledge as of
Sublessor's signing of this Sublease: (i) the Master Lease is in full force and
effect, and that it has received no written notice that there exists under the
Master Lease any default or event of default by either Master Lessor or
Sublessor or that there has occurred any event which, with the giving of notice
or the passage of time or both, could constitute such a default or event of
default; and (ii) it has received no written notice of any pending or threatened
actions, suits or proceedings before any court or administrative agency against
Sublessor, Master Lessor or third parties which could, in the aggregate,
adversely affect the Premises or any part thereof or the ability of Master
Lessor or Sublessor to perform their respective obligations under the Master
Lease or of Sublessor to perform its obligations under the Sublease and (iii) in
all material respects, a true correct and complete copy of the Master Lease is
attached hereto as Exhibit A. As used in this Section 17.10, Sublessor's "actual
knowledge" shall mean the conscious knowledge of Xxxxx Xxxxxxx, in-house real
estate counsel for Sublessor, with no duty to investigate.
IN WITNESS WHEREOF, the parties have executed this Sublease as of the
day and year first above written.
SUBLESSEE: Family Life World Outreach., a California corporation
By:
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Its:
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SUBLESSOR: MTI Technology, a Delaware corporation
By:
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Its:
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