EXHIBIT 10.11
SUBLEASE
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THIS SUBLEASE (the "Sublease") is made as of April 1, 1998, by and
between SMARTALK TELESERVICES, INC., a California corporation. whose mailing
address is 0000 Xxxxxx Xxxx, Xxxxx 000, Xxxxxx, Xxxx 00000 ("Sublessor"), and
THE RHL GROUP, INC., a California corporation, whose mailing address is Suite
000, Xxxxxxxx Xxxxxxx, 0000 Xxxxxxxxx Xxxxxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000
("Sublessee").
WITNESSETH:
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WHEREAS, LAOP IV, LLC, a California limited liability company
("Landlord") and Sublessor entered into that certain Standard Office Lease dated
as of January 10, 1996, as amended by Amendment No. 1 to Lease Agreement dated
as of January 16, 1996, Amendment No. 2 to Lease Agreement dated as of February
7, 1996, Amendment No. 3 to Lease Agreement dated as of April 19, 1996, Notice
of Lease Term Dates and Tenant's Percentage dated April 25, 0000, Xxxxxx
Xxxxxxxxx to Lease dated February 28, 1997, and Notice of Lease Term Dates and
Tenant's Percentage dated August 18, 1997 (collectively, the "Lease") covering
certain premises known as Xxxxx 000, Xxxxxxxx Xxxxxxx, 0000 Xxxxxxxxx Xxxxxxxxx,
Xxx Xxxxxxx, Xxxxxxxxxx, 00000 (including all rights appurtenant thereto as
provided in the Lease, hereinafter referred to as the "Premises"); and
WHEREAS, Sublessor desires to sublet the entire Premises to Sublessee
and Sublessee desires to sublet the entire Premises from Sublessor, on the terms
and conditions set forth herein;
NOW, THEREFORE, in consideration of the rents reserved and the other
terms and conditions hereinafter set forth, Sublessor and Sublessee hereby agree
as follows:
1. Relationship to Lease. This Sublease and all its terms, covenants
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and provisions are and each of them is subject and subordinate to the Lease, the
terms of which are specifically incorporated herein by reference. In the event
Landlord provides Sublessee with notice that Sublessor is in default under the
Lease following the expiration of any grace or cure period. Sublessee shall
thereafter make all payments due under this Sublease directly to Landlord, which
will be received by Landlord without any liability to honor this Sublease or
otherwise (except to credit such payments to amounts due under the Lease and
Sublessee shall attorn to Landlord or its successors and assigns at their
request should the Lease be terminated for any reason, except that in no event
shall Landlord or its successors or assigns be obligated to accept such
attornment. Sublessor shall provide to Sublessee, promptly, copies of any and
all notices it receives from the Landlord regarding the Lease. Sublessor (i)
represents and warrants in favor of Sublessee that all payments to be made by
the tenant under the Lease through the date of execution of this Sublease have
been made and (ii) agrees to remain responsible for and indemnify and hold
Sublessee harmless against any payments due under the Lease attributable to all
periods through and including March 31, 1998.
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2. Performance of Lease Term. With respect to the Premises, Sublessee
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hereby expressly agrees during the Term (hereinafter defined) to be subject to
and bound by and to observe, and this Sublease shall be deemed to contain. all
of the covenants, stipulations, restrictions, agreements and other provisions
contained in the Lease to the extent the same are applicable to the Premises,
except the covenant to pay the rent provided in the Lease and except as
expressly modified, excluded or otherwise specifically addressed in this
Sublease. Sublessee further agrees not to take or cause to be taken any action
which would cause Sublessor to be in default under the Lease.
3. Premises. Upon the terms and conditions hereinafter set forth,
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Sublessor hereby subleases to Sublessee, and Sublessee hereby hires and takes
from Sublessor, the entire Premises on an "AS IS" basis including any right of
Sublessor under the Lease to utilize the common areas of the property of which
the Premises are a part (including, without limitation, the use of the 20
parking spaces pursuant to the terms of the Lease), provided that Sublessee
shall use the same in such a manner as permitted and required by the Lease.
Sublessee shall purchase from Sublessor all of the office furniture, trade
fixtures and personalty (including, without limitation (i) the telephone system
and (ii) the computer equipment listed on Schedule A attached hereto) owned by
Sublessor and located in or at the Premises as of the date of the execution
hereof (the "Equipment") for the appraised value of the Equipment (as
established by an appraiser selected by Sublessor and reasonably acceptable to
Sublessee), payment for such purchase to be made by Sublessee to Sublessor
within five (5) days of receipt of an invoice for such amount from Sublessor.
The Equipment shall specifically exclude any business files and/or records of
Sublessor and any inventory (including phone cards) which business files,
records and inventory shall be recovered by, or returned to, Sublessor promptly
after the execution hereof without limitation, it is acknowledged that the art
work at the Premises and the office furniture and personalty contained in the
private office of Xxxxxx Xxxxxx belongs to Xxxxxx Xxxxxx and is not subject to
the appraisal and purchase described above.
4. Term. The term of this Sublease (the "Term") shall commence on
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April 1, 1999 and shall run parallel with the term of the Lease (excluding any
renewal term). Notwithstanding anything set forth herein to the contrary, in the
event the term of the Lease shall be terminated prior to the expiration of the
term of this Sublease for any reason. other than due to a default by Sublessor
thereunder, then the term of this Sublease automatically shall be deemed
terminated effective on the date of termination of the Lease, and Sublessor
shall have no liability to Sublessee arising out of such early termination.
5. Rent. Sublessee shall pay to Sublessor as rent for the Premises,
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without set-off or demand, the sum.
6. Use of the Premises; Sublessee's Obligations. The Premises shall
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be used for general office purposes only and for no other purpose whatsoever.
Sublessee shall fully comply with all rules and regulations which Sublessor or
Landlord may promulgate from time to time. Sublessee shall not commit or permit
any waste or injury to any of the Premises (or any other property of Sublessor
or Landlord) or any nuisance on the Premises or the property of which the
Premises are a part, nor shall Sublessee make any alterations, improvements or
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changes thereto without the prior written consent of Sublessor and otherwise in
accordance with the requirements and provisions contained in the Lease.
7. Operating Costs; Other Costs. Sublessee shall reimburse to
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Sublessor the amount of all operating costs and other charges payable by
Sublessor to the. Landlord pursuant to, the terms of the Lease ("Operating
Costs") which are attributable to the Term; provided. however, that Sublessee
shall W be responsible for any costs associated with or arising out of' any
signage of Sublessor remaining on the Premises and Sublessor shall promptly make
payment for such costs (including the Monthly Basic Rental For Signage as
defined in the Lease) as and when due. Landlord will supply to Tenant such
invoices and or calculations as received by Sublessor from Landlord and
Sublessee shall remit payment for such items as are attributable to the term
hereof to Sublessor at least three (3) days prior to the date such amounts are
due to be paid by Sublessor to Landlord. Operating Costs shall be prorated for
periods prior to April 1, 1998 and Sublessor shall remain responsible for,
indemnify and hold Sublessee harmless against, and pay promptly when due.
Operating Costs attributable to periods prior to April 1, 1998.
8. Access by Sublessor. Sublessee shall permit Sublessor (and its
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employees and agents) to have access to the Premises at all reasonable times for
any lawful purpose.
9. Sublessee's Insurance. At all times during the Term, Sublessee
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shall, at its sole cost and expense, maintain in full force and effect such
insurance policies as required by the Lease, in such amount and manner as
required by the Lease and, in addition thereto, also naming Sublessor as an
additional insured. Sublessee shall maintain its own insurance covering
Sublessee's property (including furniture, trade fixtures and personalty)
located in the Premises.
10. Indemnity. Sublessee hereby covenants and agrees to defend, hold
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harmless and indemnify Sublessor and Landlord and their respective affiliates,
directors, officers, members, employees, partners and/or shareholders from and
against any and all expenses, claims, actions, liabilities, losses and damages
of any kind whatsoever (including without limitation any death of or injury to
persons and any damage to property and any diminution in value or loss of income
from the Premises) actually or allegedly arising out of I he activities of
Sublessee or its employees, agents or invitees in the Premises.
11. Surrender of the Premises. Upon the expiration or termination of
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this Sublease, Sublessee immediately shall deliver up and surrender the Premises
to Sublessor in as good a state of order and repair as at the date hereof,
normal wear and tear excepted. Without limiting the generality of the foregoing.
Sublessee shall repair any damage to the Premises caused by the installation or
removal of any personal property or trade fixtures placed in the Premises by
Sublessee.
12. Assignment. This Sublease may not be assigned, mortgaged or
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hypothecated by Sublessee, nor may the Premises be subleased or subjected to any
liens or claims by Sublessee, under any conditions without the prior written
consent of Sublessor in each instance, which consent shall not be unreasonably
withheld. In the event this Sublease is assigned to a permitted assignee or
subleased to a permitted sub-subtenant and such assignee or sub-subtenant agrees
to assume all of the obligations hereunder in writing in favor of Sublessor,
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the undersigned Sublessee and any guarantor of Sublessee shall be released from
any obligations assumed by such assignee or sub-subtenant and accruing hereunder
for periods from and after the effective date of such assignment or sub-
sublease. Any assignment, mortgage, hypothecation, sublease, lien or claim made
or created by Sublessee without Sublessor's consent shall be void and of no
force and effect and shall constitute an immediate and continuing default
hereunder. Notwithstanding the foregoing, Sublessor hereby consents to
Sublessee's sub-sublease of a portion of the Premises to E-Sport, Inc.,
provided, however, that such sub-sublease is and shall at all times remain
subject to the terms hereof and the terms of the Lease and that Sublessor's
consent of such sub-sublease shall not release or diminish the liability of
Sublessee (or Sublessee's guarantor) for all of the Sublessee's obligations set
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forth in this Sublease until such time as E-Sport, Inc. shall assume the
obligations of Sublessee in writing, upon which time Sublessee and its guarantor
shall be released from all obligations arising after the effective date of such
sub-sublease (but only to the extent of the Premises sub-sublet for the term of
the sub-sublease).
13. Casualty. In the event the Premises or any part thereof shall be
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rendered unfit for occupancy by fire or other casualty, this Sublease shall not
terminate (unless the Lease shall be terminated as a result thereof), but rent
shall be abated on a per them basis in proportion to that area of the Premises
which is thereby rendered unfit for occupancy.
14. Default. The occurrence of any one or more of the following
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events shall constitute an event of default by Sublessee under this Sublease:
(a) any failure by Sublessee to pay any monetary obligation of Sublessee
hereunder within three (3) days after the same is due hereunder, (b) any failure
by Sublessee to comply with any other provision of this Sublease, which failure
shall continue for ten (10) or more days after notice thereof from Sublessor to
Sublessee (provided that if compliance cannot reasonably be accomplished within
such time, such period shall be extended a reasonable period so long as
Sublessee has commenced and is diligently pursuing such compliance); or (c)
Sublessee shall become insolvent, or bankruptcy proceedings shall be commenced
by or against Sublessee, or a receiver shall be appointed to control any part of
Sublessee's business or assets, or Sublessee shall make an assignment for the
benefit of creditors. Upon or at any time after the occurrence of an event of
default, Sublessor shall be entitled at its option, to exercise, concurrently or
successively, any one or more of the following rights and remedies: (a) to pay
any sum required to be paid by Sublessee hereunder to any person or entity which
Sublessee has failed to pay, and to perform any obligation required to be
performed by Sublessee, for the account of Sublessee; any amount so paid by
Sublessor shall be deemed to constitute additional rent hereunder and shall be
paid by Sublessee to Sublessor forthwith on demand; (b) to bring suit for the
collection of any amounts for which Sublessee may be in default, or for the
specific performance of any other covenant devolving upon Sublessee for
performance, and for damages for the non-performance thereof, all without
entering into possession of the Premises or terminating this Sublease; (c) to
re-enter the Premises, by summary proceedings or otherwise, with or without
process of law, and take possession thereof, without thereby terminating this
Sublease, whereupon Sublessor may (i) expel all persons and remove all property
therefrom, without thereby becoming liable in trespass or otherwise, and (ii)
relet all or any portion of the Premises for such periods (either longer or
shorter than, or coterminous with, the term of this Sublease); it being agreed
that no legal or other action initiated by Sublessor shall
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be (X) construed as an election to terminate this Sublease unless Sublessor
shall, in writing, expressly exercise its election to declare the Term ended and
terminate this Sublease, or (y) deemed to absolve or discharge Sublessee from
any of its obligations and liabilities for the remainder of the Term; and (d) to
terminate this Sublease, re-enter the Premises and take possession thereof,
eject all parties therefrom, repossess and enjoy the Premises together with all
additions, alterations and improvements thereto. All rights and remedies granted
herein and any other rights or remedies which Sublessor may have at law or in
equity are hereby declared to be cumulative and not exclusive, and the fact that
Sublessor may have exercised any remedy without terminating this Sublease shall
not impair Sublessor's rights thereafter to terminate this Sublease or to
exercise any other remedy granted herein, at law or in equity.
15. Notices. Any notice or other communication required or permitted
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to be given hereunder by either party hereto to the other shall be in writing
and shall be deemed to have been properly given (a) when delivered, if hand-
delivered, or (b) one (1) day after being deposited with an overnight courier
company, or (c) five (5) days after being deposited in the United States mail,
certified, registered or express mail, postage prepaid, return receipt
requested, in each case addressed to such other party hereto at the address
first above written or to such other address or such additional party as may be
designated from time to time by such other party hereto by notice given in the
manner provided in this Section 15.
16. Successor and Assigns. This Sublease shall be binding upon and
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inure to the benefit of Sublessor and Sublessee and their respective successors
and permitted assigns.
17. Entire Agreement; Amendments; No Waiver. This Sublease contains
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the entire agreement between the parties, and no promise, representation,
warranty, covenant, agreement or understanding not specifically set forth in
this Sublease shall be binding upon, or inure to the benefit of, either party.
This Sublease may not be amended, altered, modified or supplemented in any
manner except by an instrument in writing duly executed by the parties. The
failure of Sublessor strictly to enforce the conditions or covenants of this
Sublease or exercise any remedy herein conferred, or the acceptance by Sublessor
of any installment of rent after any breach by Sublessee, in any one or more
instances, shall not be construed or deemed to be a waiver by Sublessor of any
such conditions, covenants or remedies, but the same shall continue in full
force and effect.
18. Governing Law. This Sublease shall be governed, interpreted and
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construed in accordance with the laws of the state in which the Premises are
located.
19. Payment of Costs of Landlord Approval. Sublessee shall reimburse
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Sublessor for all costs associated with obtaining Landlord's approval of this
Sublease (up to $1000) to be paid by Sublessee to Sublessor within five (5) days
of receipt of an invoice therefor from Sublessor.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Sublease as of the day and year first above written.
SUBLESSOR:
SMARTALK TELESERVICES, INC.
a California corporation
By: /s/ Xxxxxxxx Xxxxxxx
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Xxxxxxxx Xxxxxxx, Vice President
SUBLESSEE:
THE RHL INVESTMENT GROUP, INC.
By: /s/
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Title:
The undersigned LAOP IV, LLC, the Landlord under the Lease, hereby (i) consents
to the foregoing Sublease, (ii) agrees to provide to Sublessee, during the term
of the Sublease, copies of all notices Landlord is required to or elects to
provide to Tenant under the terms of the Lease (at the address of Sublessee as
set forth in the Sublease), (iii) agrees that, notwithstanding anything in the
Lease to the contrary, Sublessor shall be permitted to maintain the Exterior
Signage during the term of the Sublease and (iv) consents to the sub-sublease of
a portion of the Premises to E-Sport, Inc. (which sub-sublease shall at all
times remain subordinate to the Lease and Sublease).
LANDLORD:
LAOP IV, LLC
By:
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Title:
To the undersigned Xxxxxx Xxxxxx hereby guarantees, for valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, in favor of
Sublessor, its successors and assigns, the payment of all amounts due for Rent
and Operating Costs under the Sublease as and when such amounts are due, without
any further notice than is provided to Sublessee under the Sublease.
/s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx
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