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Exhibit 10.16
SUBLEASE
THIS SUBLEASE ("Sublease"), dated as of July l8, 1997, for reference
purposes only, is entered into by and between BROADVISION, INC., a Delaware
corporation ("Sublessor"), and TALARIAN, INC., a California corporation
("Sublessee").
RECITALS
A. Sublessee leased certain premises consisting of approximately 16,359
square feet located in a building sometimes commonly known as 000 Xxxxxx Xxxxxx,
Xxx Xxxxx, Xxxxxxxxxx (the "Building"), pursuant to a certain Standard Office
Lease - Gross between Sublessor, as tenant, and GVE Xxxxxx Associates, a
California general partnership (hereinafter "Master Lessor"), as landlord, dated
February 8, 1995 (as amended or otherwise modified from time to time, the
"Master Lease"), a copy of which is attached hereto as Exhibit A (hereinafter
the "Premises"). Capitalized terms herein not otherwise defined herein, shall
have the same meanings as provided in the Master Lease.
B. Sublessor desires to sublease to Sublessee, and Sublessee desires to
sublease from Sublessor, the Premises upon the terms and conditions provided for
herein.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
contained herein, Sublessor and Sublessee covenant and agree as follows:
AGREEMENT
1. PREMISES. Sublessor hereby leases to Sublessee, and Sublessee hereby
leases from Sublessor, the Premises, on and subject to the terms and conditions
set forth herein.
2. USE. Sublessee shall use the Premises only for those purposes
permitted in the Master Lease.
3. TERM.
(a) The term of this Sublease shall commence as of the later of (a)
November 7, 1997 and (b) the date of the full execution of this Sublease by all
parties hereto.
(b) Notwithstanding said commencement date, if for any reason
Sublessor cannot deliver possession of the Premises to Sublessee on or before
said date, Sublessor shall not be subject to any liability therefor, nor shall
such failure affect the validity of this Sublease or the obligations of
Sublessee hereunder or extend the term hereof, but in such case Sublessee shall
not be obligated to pay Rent (as hereinafter defined) until possession of the
Premises is tendered to Sublessee.
Notwithstanding the provisions of this Section 3(b) to the contrary, if
Sublessor has not delivered the Premises to Sublessee in the condition required
under this Sublease on or before December 31, 1997, Sublessee shall have the
right thereafter, until such possession is delivered
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to Sublessee, to cancel this Sublease. Upon such cancellation, both parties
shall be released from further liability under this Sublease, and all deposits
and prepaid rent shall be returned to Sublessee.
(c) The term of this Sublease shall end on May 31, 2000, unless
earlier terminated in accordance with the terms of this Sublease; provided,
however, that the term of this Sublease shall earlier terminate in the event of
the earlier termination for any cause whatsoever of the Master Lease.
4. RENT. The rent payable by Sublessee for the Premises shall consist of
basic rental ("Basic Rent") plus Operating Expense Increases (as hereinafter
defined), all as provided below. Basic Rent, Operating Expense Increases and any
other charges due hereunder are hereinafter referred to collectively as "Rent."
All Rent shall be paid to Sublessor at the address specified for Sublessor
below, or to such other person or to such other place as Sublessor may from time
to time designate in writing.
(a) Sublessee shall pay to Sublessor in advance, on or before the
first day of each month of the term of the Sublease and without deduction or
offset, monthly Basic Rent in the amounts hereinafter set forth in this Section
4(a). The Basic Rent for any partial month shall be prorated at the rate of 1/30
of the Basic Rent per day.
MONTHS MONTHLY BASIC RENT
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1 - 12 $48,259.05
13 - 24 $49,894.95
25 - 31 $51,530.85
(b) Sublessee shall also pay, in addition to Basic Rent, for each
Comparison Year during the term of this Sublease, any and all increases to the
Building's Operating Expenses and/or Real Estate Taxes over a 1997 Base Year, to
the extent that such increases are payable by Sublessor pursuant to the Master
Lease (the "Operating Expense Increases"); provided, however, that Sublessee
shall have no obligation to pay any such increases applicable to the first
twelve (12) months of the Sublease term. The parties hereto hereby acknowledge
that the last sentence of the second paragraph of Paragraph 52 of Addendum One
of the Master Lease shall apply to this Sublease.
(c) To the extent that the Operating Expense Increases due under the
Master Lease are payable on a monthly basis pursuant to the Master Lease, such
Operating Expense Increases shall be paid to Sublessor as and when Basic Rent is
paid. To the extent that the Operating Expense Increases are billed from time to
time to Sublessor by Master Lessor, such Operating Expense Increases shall be
paid by Sublessee to Sublessor within fifteen (15) business days after
Sublessee's receipt of an invoice therefor.
(d) Sublessee shall pay to Sublessor upon execution of this Sublease,
in addition to the portion of the Security Deposit as set forth in Section 7
below, the first month's Basic Rent in the amount of $48,259.05.
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5. AS-IS. Sublessor subleases the Premises to Sublessee strictly in its
present "as-is" condition and with all faults, and Sublessee by acceptance and
delivery of possession thereof acknowledges the same to be in good order and
repair and in a tenantable condition. Notwithstanding the foregoing, Sublessor,
at its sole cost, shall have the carpets in the Premises steam cleaned prior to
commencement of the term or this Sublease.
6. MASTER LEASE. This Sublease shall be subject and subordinate to all of
the terms and provisions of the Master Lease, and Master Lessor shall have all
rights in respect of the Master Lease and the Premises as set forth therein.
Except for payments of rent required under the Master Lease (which payments
shall be made by Sublessor), and, except as otherwise provided in Section 7
hereof, Sublessee hereby assumes and agrees to perform for Sublessor's benefit,
during the term of this Sublease, all of Sublessor's obligations under the
Master Lease insofar as they relate to the Premises (hereinafter the "Assumed
Obligations"), which accrue during the term of this Sublease.
7. INCORPORATION OF MASTER LEASE.
(a) Except as otherwise provided in this Sublease, all of the terms
and provisions of the Master Lease are incorporated into and made a part of this
Sublease, and the rights and obligations of the parties under the Master Lease
are hereby imposed upon the parties hereto with respect to the Premises, the
Sublessor being substituted for the "Lessor" in the Master Lease, the Sublessee
being substituted for the "Lessee" in the Master Lease and the Premises being
substituted for the "Premises" in the Master Lease.
(b) Notwithstanding the foregoing:
(i) the following paragraphs of the Master Lease are not
incorporated herein: 1.1, 1.5, 1.6, 1.7, 1.8, 1.9, 1.10, 3, 6.2(a), 6.3(a), 7.1,
8.2, 8.4, 10.1, 11.1, 15, 39, Addendum One Paragraphs 50, 51, 53, 56, 58, 59,
60, 62, 63 and Exhibit C.
(ii) Sublessee shall fully perform all of the Assumed Obligations
and shall indemnify, defend, protect, and hold harmless Sublessor from any and
all liability, damages, liabilities, claims proceedings, actions, demands and
costs (including reasonable attorneys' fees) resulting, directly or indirectly,
from Sublessee's failure to perform the Assumed Obligations.
(iii) Upon any termination of the Master Lease, this Sublease
shall also terminate; provided, however, that if, without the fault of Sublessor
hereunder, the Master Lease should terminate prior to the expiration of this
Sublease, Sublessor shall have no liability to Sublessee, and, if the Master
Lease is terminated as a result of a default by Sublessor of its obligations
under the Master Lease or this Sublease, other than the Assumed Obligations,
Sublessee shall have all rights and remedies that would otherwise be available
to it at law or in equity as a result of such default..
(iv) Sublessor shall have no services or maintenance or repair
obligations with respect to the Premises except for its obligation to use
reasonable efforts to enforce the obligations of Master Lessor under the Master
Lease. Sublessee hereby expressly waives the provisions of subsection 1 of
Section 1932 and Sections 1941 and 1942 of the Civil
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Code of California and all rights to make repairs at the expense of Sublessor as
provided in Section 1942 of said Civil Code.
(v) Sublessee shall indemnify, defend, protect, and hold
Sublessor harmless from and against all actions, claims, demands, costs
liabilities, losses, reasonable attorneys` fees, damages, penalties, and
expenses (collectively "Claims") which may be brought or made against Sublessor
or which Sublessor may pay or incur to the extent caused by (i) a breach of this
Sublease by Sublessee, (ii) any violation of law by Sublessee or its employees,
agents, contractors or invitees (collectively, "Agents") relating to the use or
occupancy of the Premises, (iii) any act or omission by Sublessee or its Agents
resulting in contamination of any part or all of the Premises by Hazardous
Materials (as hereinafter defined), or (iv) the negligence or willful misconduct
of Sublessee or its Agents. Sublessor shall indemnify, defend, protect, and hold
Sublessee harmless from and against all actions, claims which may be brought or
made against Sublessee or which Sublessee may pay or incur to the extent caused
by (i) a breach of this Sublease or the Master Lease by Sublessor, (ii) any act
or omission by Sublessor or its Agents resulting in contamination of any part or
all of the Premises by Hazardous Materials, or (iii) the negligence or willful
misconduct of Sublessor or its Agents. As used herein, "Hazardous Materials"
means any substance or material which is classified or considered to be
hazardous or toxic under any present or future federal, state, regional or local
law relating to the use, storage, treatment, existence, release, emission,
discharge, generation, manufacture, disposal or transportation of any such
substances. Each of the Sublessee and Sublessor hereby agrees and covenants to
immediately notify the other of any knowledge such party gains regarding the
existence of Hazardous Materials at, or the introduction of Hazardous Materials
onto or about, the Premises or the Building.
(c) For the purposes of incorporating the terms and provisions of the
Master Lease into this Sublease, the Master Lease is hereby amended as follows
(references are to paragraphs of the Master Lease):
PARAGRAPH COMMENTS
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5. Sublessee shall deposit with Sublessor upon execution
of this Sublease a cashier's check or other immediately
available funds in the amount of $51,530.85 (the "Cash
Security Deposit"). In addition to the Cash Security
Deposit, Sublessee shall deposit with Sublessor at
least thirty (30) days prior to occupancy of the
Subleased Premises an irrevocable letter of credit in
the amount of $154,592.55 (the "Letter of Credit").
Upon Sublessee's providing to Sublessor evidence
reasonably satisfactory to Sublessor of Sublessee's
closing of a new round of financing, Sublessee shall be
permitted to reduce the amount of the Letter of Credit
as follows: if the financing is in a principal amount
equal to or exceeding $3,000,000.00, but less than
$5,000,000.00, the Letter of Credit may be reduced to
$103,061.70; if the financing is in a principal amount
equal to or exceeding $5,000,000.00, the Letter of
Credit may be reduced to $51,530.85.
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The Cash Security Deposit, together with the Letter of
Credit, shall constitute the Security Deposit.
8. Master Lessor and Sublessor shall be named as
additional insureds on the liability insurance.
13. The three (3) day cure period provided for any monetary
default is reduced to two (2) days. The thirty (30) day
cure period provided for any non-monetary default is
reduced to twenty-five (25) days.
23. Sublessor's notice address shall be as provided below,
or at such other address as Sublessor may from time to
time designate in writing.
8. BROKERAGE. Each party warrants and represents to the other that such
party has not retained the services of any real estate broker, finder or any
other person whose services would form the basis for any claim for any
commission or fee in connection with this Sublease or the transactions
contemplated hereby, except for the following parties: Cornish & Xxxxx
Commercial ("C&C"), representing the Sublessor, and Colliers Xxxxxxx
International, Inc. ("CPI"), representing the Sublessee. Sublessor shall pay to
C&C any commission due to C&C in connection with this Sublease pursuant to a
separate agreement between Sublessor and C&C. CPI shall recover any commission
due to it in connection with this Sublease directly from C&C. Each party agrees
to save, defend, indemnify and hold the other party free and harmless from any
breach of its warranty and representation as set forth in the preceding
sentence, including the other party's reasonable attorneys' fees.
9. SUBLESSOR'S OBLIGATIONS. Except as expressly otherwise provided
herein, Sublessor shall have no obligation to Sublessee with respect to the
Premises or the performance by Master Lessor of any obligations of Master Lessor
under the Master Lease.
10. CONSENT OF MASTER LESSOR. If Sublessee desires to take any action
which requires the consent of Master Lessor pursuant to the terms of the Master
Lease, including, without limitation, the making of any alterations, then,
notwithstanding anything to the contrary herein, (a) Sublessor, independently,
shall have the same rights of approval or disapproval as Master Lessor has under
the Master Lease, (b) Sublessee shall not take any such action until it obtains
the consent of both Sublessor and Master Lessor, and (c) Sublessee shall request
that Sublessor obtain Master Lessor's consent on Sublessee's behalf and
Sublessor shall use commercially reasonable efforts to obtain such consent,
unless Sublessor and Master Lessor agree that Sublessee may contact Master
Lessor directly with respect to the specific action for which Master Lessor's
consent is required. Any consent required of Sublessor conclusively shall be
deemed reasonably withheld, if consent also is required of the Master Lessor,
and Master Lessor withholds Master Lessor's consent.
11. NO THIRD PARTY RIGHTS. The benefit of the provisions of this Sublease
is expressly limited to Sublessor and Sublessee. Under no circumstances will any
third party be construed to have any rights as a third party beneficiary with
respect to any of said provisions;
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provided, however, that Master Lessor shall be entitled to the benefit of
Sublessee's (a) assumption of Sublessor's obligations, as "Tenant" under the
Master Lease, pursuant to Section 6 above, and (b) indemnities set forth in this
Sublease.
12. MASTER LESSOR CONSENT. This Sublease is subject to the consent of the
Master Lessor.
13. COUNTERPARTS. This Sublease may be executed in any number of
counterparts, each of which counterparts shall be deemed to be an original, and
all of which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have executed this Sublease as of the date
first written above.
ADDRESS: SUBLESSOR:
BROADVISION, INC. BROADVISION, INC., a Delaware corporation
000 Xxxxxxxx
Xxxxxxx Xxxx, Xxxxxxxxxx 00000
Attn: By: s/p
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Xxxxx Xxxxxx
Chief Financial Officer
SUBLESSEE:
TALARIAN, INC. TALARIAN, INC., a California corporation
000 Xxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Attn: By: s/p
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Xxxx Xxxxxx
President and Chief Operating Officer
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CONSENT OF MASTER LESSOR
The undersigned, as owner and holder of all right, title and interest of
Master Lessor under the Master Lease, hereby consents to the attached Sublease:
GVE XXXXXX ASSOCLATES, a
California general partnership
By: s/
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Its: General Partner
Dated: July 28, 1997
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