EXHIBIT 10(c): Sublease Agreement
SUBLEASE AGREEMENT
THIS SUBLEASE AGREEMENT ("Sublease") is made and entered into
effective as of the 8th day of March, 2002 (the "Effective
Date"), by and between TBA ENTERTAINMENT GROUP PHOENIX, INC., an
Arizona corporation ("Sublessor"), and iWizard Holding, Inc., a
Nevada corporation ("Sublessee").
WITNESSETH
WHEREAS, The Xxxxxxx Companies ("Landlord"), as landlord,
and Sublessor, as tenant, heretofore made and entered into that
certain Office Lease Agreement dated July 30, 2001 (said Office
Lease agreement, together with all amendments thereto, if any,
being hereinafter referred to as the ("Primary Lease"), which
Primary Lease provides for the lease and demise by Landlord to
Sublessor of those certain premises (the "Premises") more
particularly described in the Primary Lease, but which are
generally described as comprising approximately 3,673 square feet
(including 5.7% load factor) of space in the office building
commonly known and referred to as the XxXxxxx Building (the
"Building") located at 0000 X. 00xx Xxxxxx, Xxxxxxxxxx, Xxxxxxx
00000; and
WHEREAS, a true and correct copy of the Primary Lease (with
confidential portions redacted) is attached hereto as Exhibit "A"
and made a part hereof for all purposes; and
WHEREAS, Sublessor desires to sublease to Sublessee the
entire Premises, and Sublessee desires to accept and sublease the
same, all upon and subject to the terms and conditions set forth
hereinbelow.
NOW, THEREFORE, for and in consideration of the above and
foregoing premises and in consideration of the mutual terms,
conditions, covenants and agreements herein contained, and for
other good and valuable consideration, the receipt and
sufficiency of which consideration is hereby acknowledged by each
of the parties hereto, Sublessor and Sublessee do hereby agree as
follows:
1. Demise and Description of Property. Sublessor hereby
subleases to Sublessee, and Sublessee hereby subleases from
Sublessor, upon and subject to the terms, limitations and
conditions set forth herein and in the Primary Lease, the
Premises.
2. Term; Surrender.
A. Term. The term ("Term") of this Sublease is
approximately 55 and 1/2 months, commencing on March 15,
2002 (subject to the conditions set forth below) (the
"Sublease Commencement Date") and ending at 11:59 p.m.
(Scottsdale, Arizona time) on October 31, 2006 (the
"Expiration Date"), or at such earlier date as this Sublease
may be terminated pursuant to the terms of this Sublease;
provided, however, this Sublease shall automatically
terminate upon the expiration or termination for any reason
of the Primary Lease.
If Sublessor is unable to deliver possession of the Premises
to Sublessee on or before the Sublease Commencement Date,
Sublessor shall not be subject to any liability for its
failure to do so, and such failure shall not affect the
validity of this Sublease or the obligations of Sublessee
under this Sublease, but the Sublease Term shall commence on
the date on which Sublessor delivers possession of the
Premises to Sublessee; provided, however, if the Premises
are not delivered to Sublessee within ninety (90) days of
the scheduled Sublease Commencement Date, then Sublessee
shall have the right to terminate this Sublease by delivery
of written notice of such election to Sublessor at any time
prior to delivery of the Premises to Sublessee, and there
shall be no further liability to Sublessee or Sublessor
hereunder from and after such termination except as is
otherwise expressly set forth herein.
B. End of Term. Upon the expiration or termination of
this Sublease, Sublessee must: (i) surrender to Sublessor
any keys, electronic ID cards, and other access devices to
the Premises at the place then fixed hereunder for payment
of rent and other charges hereunder to Sublessor; (ii)
remove all of Sublessee's trade fixtures and other personal
property from the Premises; (iii) surrender the Premises in
"broom clean" condition and in compliance with the terms and
conditions of the Primary Lease pertaining to surrender of
the Premises; (iv) except for reasonable wear and teat
resulting from normal use, surrender the Premises and
fixtures in the same condition in which Sublessee received
them; and (v) deliver the Premises to Sublessor free and
clear of any and all hazardous materials and substances so
that the condition of the Premises conforms at such time
with all applicable environmental laws, ordinances, rules
and regulations.
3. Sublease Rent. For the Term of this Sublease, Sublessee
shall pay to Sublessor as base rent (the "Sublease Rent") for the
Premises the following:
Lease Period March 15 - 31, 2002 $2,448.66
Remainder of Lease Year One
(through October 31, 2002) $58,768.00/yr. $4,897.33/mo.
Lease Year Two
(11/1/02 through 10/31/03) $89,988.50/yr. $7,499.04/mo.
Lease Year Three
(11/1/03 through 10/31/04) $91,825.00/yr. $7,652.08/nto.
Lease Year Four
(11/1/04 through 10/31/05) $93,661.50/yr. $7,805.13/mo.
Lease Year Five
(11/1/05 through 10/31/06) $95,498.00/yr. $7,958.17/mo
The Sublease Rent shall be paid in advance at least five (5) days
prior to the first day of each calendar month during the Term,
commencing on the Sublease Commencement Date; provided, however,
that the Sublease Rent for the first month of the Term shall be
payable by Sublessee to Sublessor upon the Effective Date of this
Sublease. The Sublease Rent shall be paid to Sublessor at
Sublessee's address as provided on the signature page of this
Sublease or to such other person or at such other address as
Sublessor may from time to time designate in writing. Sublessor
may, at its option, xxxx Sublessee for Sublease Rent, but no
delay or failure by Sublessor in providing such a xxxx shall
relieve Sublessee from the obligation to pay the Sublease Rent on
the first day of each month as provided herein. All payments
shall be in the form of a check unless otherwise agreed by
Sublessor, provided that payment by check shall not be deemed
made if the check is not duly honored with good funds; provided,
further, that if any such check is ever returned for lack of
sufficient funds or is otherwise not duly honored with good
funds, then Sublessor may
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thereafter require, upon written notice thereof to Sublessee,
that all future payments of Rent or other charges under this
Sublease be made in cash or cash equivalent mode. In addition to
the Rent and any other sums or amounts required to be paid by
Sublessee to Sublessor pursuant to this Sublease, Sublessee shall
also pay to Sublessor, concurrently with the payments of said
Rent or other charges, the amount of any applicable sales, use or
excise tax, rent tax or other tax with respect thereto (other
than any general income tax payable by Sublessor with respect
thereto) as the same may be levied, imposed or assessed by any
federal, state, county or municipal government entity or agency.
If the Term of this Sublease commences or ends at any time other
than the first day of a calendar year, then Sublease Rent shall
be prorated for such year according to the number of days of the
Term in such year.
4. Additional Rent. In addition to the Sublease Rent
provided in Paragraph 3 hereof, Sublessee shall also reimburse to
Sublessor all "Project Expenses" and "Parking Charges" (as
provided in Article VI of the Primary Lease) payable by Sublessor
pursuant to the Primary Lease. Sublease Rent, Project Expenses,
and Parking Charges are sometimes collectively referred to in
this Sublease as "Rent." All Rent shall be paid without notice,
demand, abatement, deduction or setoff, except as otherwise
expressly provided in this Sublease.
5. Security Deposit. Contemporaneously with the delivery
by Sublessee to Sublessor of this Sublease, Sublessee shall
deliver to Lessor a cash security deposit in the amount of
$4,897.33 (the "Security Deposit"). The Security Deposit shall be
held by Lessor, without liability for interest, as security for
the performance by Sublessee of Sublessee's covenants and
obligations under this Sublease, it being expressly understood
that the Security Deposit shall not be considered an advance
payment of Rent or a measure of Sublessee's liability for damages
in the event of a default by Sublessee Lessor may, from time to
time, without prejudice to any other remedy, use the Security
Deposit to the extent necessary to make good any arrearages of
Rent or to satisfy any other covenant or obligation of Sublessee
hereunder. Following any such application of the Security
Deposit, Sublessee shall pay to Lessor on demand the amount so
applied in order to restore the Security Deposit to its original
amount. If Sublessee is not in default at the termination of this
Sublease, the balance of the Security Deposit remaining after any
such application shall be returned by Lessor to Sublessee within
thirty (30) days following the termination of this Sublease. If
Lessor transfers its interest in the Lease, Lessor may assign the
Security Deposit to the transferee and upon assumption by such
transferee of liability for the Security Deposit, Lessor shall
have no further liability for the return of such Security
Deposit.
6. Acceptance and Use off the Premises.
A. Acceptance of Premises. Sublessee accepts the
Premises in its present, "AS-IS, WHERE IS" condition and
with all faults. By occupying the Premises, Sublessee: (a)
acknowledges that Sublessee has had full opportunity to
examine the Premises and is fully informed, independently of
Sublessor or any employee, agent, representative,
shareholder, officer or director of Sublessor, as to the
character, construction and structure of the Premises; (b)
acknowledges that neither Sublessor nor any of Sublessee's
employees, agents, representatives, shareholders, officers
or directors, has made any representations, warranties or
promises with respect to the Premises, including without
limitation any representation or warranty as to fitness
thereof for any purpose; (c) accepts the Premises in an "AS-
IS, WHERE
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IS" condition and acknowledges that the Premises comply with
all requirements imposed upon Sublessor under this Sublease;
and (d) acknowledges and agrees that the Premises are
subject to the limitations, encumbrances, and other matters
described in the Primary Lease. TO THE EXTENT ALLOWED BY
LAW, SUBLESSEE HEREBY WAIVES ANY AND ALL RIGHTS AND
PROTECTIONS WHICH MIGHT OTHERWISE BE AFFORDED SUBLESSEE AT
LAW OR OTHERWISE CONCERNING HABITABILITY OR SUITABILITY OF
THE PREMISES OR THE CONDITION OF THE PREMISES (INCLUDING ANY
BUILDINGS OR IMPROVEMENTS).
B. Maintenance of Premises. Sublessee shall maintain
the Premises in good condition and repair and in all
respects in compliance with all obligations of Sublessor as
tenant under the Primary Lease.
C. Use of Premises. The Premises shall be used by
Sublessee only for the uses and purposes permitted under the
Primary Lease and for no other use or purpose.
D. Ownership of Improvements. Sublessee hereby
acknowledges and agrees that Sublessor shall be and remain
the owner of all improvements constructed upon the Premises,
as the same may be altered, expanded and/or improved from
time to time, during the term of this Sublease and
thereafter (subject only to the terms of the Primary Lease).
Sublessor shall retain and have all rights to depreciation
deductions and tax credits arising from Sublessor's
ownership of the Improvements. Upon expiration or earlier
termination of this Sublease, Sublessee shall have no
further rights with respect to the improvements or interest
therein.
7. Additional Agreements and Covenants.
A. Obligations Under Primary Lease. Sublessee hereby
assumes and agrees to perform all obligations of Sublessor
as tenant under the Primary Lease relating to the Premises,
and Sublessee agrees to abide by and comply with all of the
provisions of the Primary Lease during the term of this
Sublease, except that: (i) the payment off rent and other
charges by Sublessee shall be supplemented by the provisions
of Paragraphs 3 and 4 of this Sublease; (ii) Sublessee shall
have no option to renew or extend the term hereof
(notwithstanding the availability of any renewal or
extension options under the Primary Lease), and (iii) the
following provisions of the Primary Lease shall not be
applicable to Sublessee: Sections 1.02, 2.01 through 2.08,
3.02, 3.03, and 7.14, and Exhibit "B". Sublessee hereby
acknowledges that Sublessee has read and is familiar with
the terms and conditions of the Primary Lease, and Sublessee
further hereby acknowledges and agrees that (a) this
Sublease is and shall be and remain expressly subject to all
of the terms and conditions off the Primary Lease, and (b)
except as otherwise specifically set forth in this Sublease,
Sublessor expressly retains and reserves all rights and
benefits applicable to Sublessor as tenant under the Primary
Lease,
B. Incorporation of Primary Lease. Except as
specifically excluded from application to Sublessee pursuant
to Paragraph 7A hereinabove, the provisions of the Primary
Lease, to the extent that they do not conflict with specific
provisions contained in this Sublease, are fully
incorporated into this Sublease. In the event of any
conflict between the provisions of the Primary Lease and the
provisions contained in this Sublease, the provisions of
this Sublease shall be controlling. Sublessee hereby agrees
to be bound to Sublessor by, and to comply with
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all of the terms and conditions of, the Primary Lease and to
assume toward Sublessor and perform all of the covenants,
obligations and responsibilities that Sublessor by the
Primary Lease assumes toward the Landlord. SUBLESSEE HEREBY
AGREES TO INDEMNIFY, DEFEND (WITH COUNSEL APPROVED IN
ADVANCE IN WRITING BY SUBLESSOR) AND HOLD HARMLESS
SUBLESSOR, AND SUBLESSER'S AGENTS, FROM AND AGAINST ANY AND
ALL CLAIMS, LIABILITY, CAUSES OF ACTION, LOSS, DAMAGES,
COSTS AND EXPENSES ARISING FROM (i) ANY BREACH, VIOLATION OR
NON-PERFORMANCE BY SUBLESSEE OF ANY OF THE TERMS AND
PROVISIONS OF THE PRIMARY LEASE OR THIS SUBLEASE, OR ARISING
UNDER THE PRIMARY LEASE, OR RESULTING FROM SUBLESSEE'S USE
OR OCCUPANCY OF THE PREMISES, OR (ii) ANY PERSONAL OR BODILY
INJURY TO PERSONS OR DAMAGE TO PROPERTY TO THE EXTENT THAT
SUCH DAMAGE OR INJURY WAS CAUSED, EITHER PROXIMATELY OR
REMOTELY, BY ANY ACT OR OMISSION, WHETHER NEGLIGENT OR NOT,
OF SUBLESSEE OR ANY OF SUBLESSEE'S AGENTS, SERVANTS,
EMPLOYEES, CONTRACTORS, CUSTOMERS, GUESTS, OR INVITEES OR OF
ANY OTHER PERSON ENTERING ONTO THE PREMISES UNDER OR WITH
THE EXPRESS OR IMPLIED INVITATION OF SUBLESSEE. SUBLESSEE'S
OBLIGATIONS OF INDEMNIFICATION PURSUANT TO THIS SECTION 7(B)
SHALL SURVIVE THE EXPIRATION OR EARLIER TERMINATION OF THIS
SUBLEASE.
C. Services and Other Rights. Notwithstanding
anything herein contained to the contrary, Sublessee hereby
acknowledges and agrees that the only services or other
rights that Sublessee is entitled to under this Sublease are
those to which Sublessor is entitled under the Primary
Lease, and Sublessee hereby agrees that Sublessee shall look
solely to Landlord under the Primary Lease for all such
services and other rights and that Sublessor shall not be
responsible therefor,
D. Exculpation. Sublessee hereby acknowledges and
agrees that Sublessor shall not be responsible for any
repairs to the Premises, nor shall Sublessor, nor any of
Sublessor's partners, officers, directors, shareholders,
agents, employees or representatives, be liable for any of
the following: (i) any of the Landlord's obligations under
the Primary Lease; (ii) any interruption in utilities or
services to the Premises; (iii) any loss of or damage to any
property of Sublessee or of Sublessee's employees, agents,
customers, guests or invitees (whether by theft or
otherwise); (iv) the failure of Landlord to perform any
obligation of Landlord under the Primary Lease; or (v) any
damage or disturbance caused by others. Neither Sublessor
nor any of Sublessor's partners, officers, directors,
shareholders, employees, agents or representatives has any
personal liability under this Sublease, it being hereby
agreed that the liability of Sublessor and Sublessor's
partners, officers, directors, shareholders, agents,
employees and representatives for any default by Sublessor
under the terms of this Sublease shall be limited to
Sublessee's actual direct, but not consequential, damages
therefor and shall be recoverable solely from the equity
interest of Sublessor in and to the Premises and in, to and
under the Primary Lease.
E. Default Under Primary Lease. No default of
Landlord under the Primary Lease shall affect this Sublease
or waive or defer the performance of any of Sublessee's
obligations hereunder; provided, however, that in the event
of any such default or failure by
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Landlord, Sublessor agrees, upon Sublessor's receipt of
written notice thereof from Sublessee, and at Sublessee's
expense, to make demand upon Landlord to perform Landlord's
obligations under the Primary Lease in accordance with the
terms of the Primary Lease (but without obligation of
Sublessor to take any other action or incur any expense to
enforce Landlord's obligations under the Primary Lease).
Sublessee shall pay all costs and expenses, including
reasonable attorneys' fees, that may be incurred by
Sublessor in enforcing the provisions of this Sublease or in
enforcing Landlord's obligations under the Primary Lease if
requested to do so by Sublessee,
F. Insurance. Sublessee shall obtain and maintain in
force and effect with respect to the Premises, throughout
the entire term of this Sublease, any and all insurance
required to be maintained by the "tenant" pursuant to the
terms of the Primary Lease. It is agreed that any and all
insurance required to be maintained by Sublessee pursuant to
the terms of the Primary Lease (as incorporated herein and
assumed by Sublessee hereunder) shall: (i) name Sublessor,
each leasehold mortgagee holding a leasehold mortgage on
this Sublease or the Premises or any part thereof, and
Landlord as additional loss payees with respect to all
property insurance; (ii) contain waivers of subrogation
applicable to each of Sublessor, each aforesaid leasehold
mortgagee and Landlord; (iii) include a standard mortgage
clause in favor of each aforesaid leasehold mortgagee; (iv)
shall name Sublessor, each aforesaid leasehold mortgagee and
Landlord as additional insureds with respect to liability
insurance; and (v) require at least thirty (30) days'
advance written notice to Sublessor, Landlord and any
applicable mortgagee prior to the cancellation or
modification of any such insurance. All insurance policies
required to be maintained by Sublessee hereunder are to be
written by insurance companies reasonably satisfactory to
Sublessor and Landlord. True, correct and complete copies of
all such insurance policies (or certificates thereof in form
and content reasonably satisfactory to Sublessor and
Landlord), evidencing that all such insurance policies
required to be obtained and maintained by Sublessee
hereunder have been obtained and paid for, shall be provided
to Sublessor, Landlord and any applicable mortgagees
concurrently with the execution of this Sublease and
thereafter at least thirty (30) days prior to the expiration
date of any then-existing policies.
8. Limitation of Liability. Notwithstanding any provision of
the Primary Lease to the contrary, neither Landlord nor
Sublessor, nor any of Sublessor's partners, officers, directors,
shareholders, agents, employees or representatives, shall be
liable to Sublessee, or any of Sublessee's agents, employees,
servants, customers, guests or invitees, for any damage to
persons or property due to the condition, design, or any defect
in the Premises or its mechanical systems that may exist on the
Sublease Commencement Date or that may subsequently occur.
Sublessee, with respect to itself and its agents, employees,
servants, customers, guests and invitees, hereby expressly
assumes all risks of damage to persons and property, either
proximate or remote, by reason of the present or future condition
of the Premises.
9. Assignment and Subletting. Except upon the prior
written consent of Sublessor and Landlord, which consent shall
not be unreasonably withheld in, the case of the Sublessor,
Sublessee will not voluntarily or involuntarily transfer, convey,
assign, mortgage or pledge this Sublease or any right or interest
of Sublessee hereunder, nor sublet any part of the Premises, nor
permit the use or occupancy of any portion of the Premises by
anyone other than Sublessee.
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10. Parking. Provided that, and for so long as, no Event of
Default has occurred and is continuing under this Sublease,
Sublessee shall have a nonexclusive right to use any parking
rights granted to Sublessor under the Primary Lease during the
Term of this Sublease at the charge, if any, payable therefor
under the Primary Lease. Sublessee's use of such parking spaces
shall be only upon and subject to the terms and conditions of the
Primary Lease.
11. Brokers. Sublessor and Sublessee agree and represent to
one another that no finder or broker has been involved in the
procurement, negotiation or execution of this Sublease. SUBLESSOR
AND SUBLESSEE HEREBY AGREE TO DEFEND, INDEMNIFY AND HOLD EACH
OTHER HARMLESS AGAINST ANY LOSS, CLAIM, EXPENSE OR LIABILITY WITH
RESPECT TO ANY COMMISSIONS OR BROKERAGE FEES (EXCEPT AS OTHERWISE
SET FORTH IN THE IMMEDIATELY PRECEDING SENTENCE) CLAIMED ON
ACCOUNT OF THE EXECUTION AND/OR RENEWAL OF THIS SUBLEASE OR THE
EXPANSION OF THE PREMISES DUE TO ANY ACTION OF THE INDEMNIFYING
PARTY. THE OBLIGATIONS OF INDEMNITY SET FORTH IN THIS PARAGRAPH
11 SHALL SURVIVE THE EXPIRATION OR EARLIER TERMINATION OF THIS
SUBLEASE.
12. INTENTIONALLY OMITTED
13. Default and Remedies.
A. Event of Default. The occurrence of any one or
more of the following events shall constitute an event of
default ("Event of Default") by Sublessee under this
Sublease;
(i) the failure of Sublessee to pay any
installment of Rent, Additional Rent or other charge or
money obligation due under this Sublease, and such
failure continues for a period of two (2) days after
written notice thereof to Sublessee (provided that, if
two such failures occur in any consecutive twelve (12)
month period, Sublessee shall not be entitled
thereafter to any such notice off, or such period to
cure, any subsequent failure, and any such subsequent
failure shall be and constitute an immediate Event of
Default under this Sublease);
(ii) the failure of Sublessee to perform, comply
with or observe any agreement, covenant or obligation
of Sublessee under this Sublease other than the payment
of rent or other monetary amounts, and such failure
continues for a period of ten (10) days after written
notice thereof to Sublessee;
(iii) the making by Sublessee of any
assignment for the benefit of Sublessee's creditors;
(iv) the levying on or against the property of
Sublessee of a writ of execution or attachment that is
not released or discharged within twenty (20) days;
(v) the institution in a court of competent
.jurisdiction of bankruptcy proceedings against
Sublessee or any of Sublessee's shareholders, or for
the appointment of a receiver of the property of
Sublessee, provided that such proceedings are not
dismissed, and any receiver, trustee, or liquidator
appointed therein is not discharged, within thirty (30)
days after the institution of said proceedings;
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(vi) the doing or permitting to be done by
Sublessee of any act which creates a mechanics' lien or
claim against the Premises; or
(vii) the occurrence of any default or Event
of Default under the Primary Lease.
B. Remedies. Upon the occurrence of an Event of
Default, Sublessor, in addition to any and all other rights
and remedies available to Sublessor at law or in equity and
in addition to all other rights or remedies reserved herein,
shall have the option to pursue any one or more of the
following remedies without any notice or demand whatsoever
and without releasing Sublessee from any obligation under
this Sublease (except in the case of a termination of the
Sublease):
(i) Sublessor may enter the Premises without
terminating this Sublease and may perform any covenant
or agreement or cure any condition creating or giving
rise to a default or Event of Default under this
Sublease or under the Primary Lease, and Sublessee
agrees to pay to Sublessor on demand, as Additional
Rent, the amount expended by Sublessor in performing
such covenants or agreements or satisfying or observing
such condition. Sublessor, and Sublessor's agents,
representatives and employees, shall have the right to
enter the Premises in the exercise of such rights and
such entry and such performance shall not terminate
this Sublease or constitute an eviction of Sublessee;
or
(ii) At Sublessor's sole option, Sublessor may
terminate this Sublease by written notice thereof to
Sublessee or Sublessor may terminate Sublessee's right
of possession to the Premises, without terminating this
Sublease. In either such event, Sublessee shall
surrender (in accordance with the terms and conditions
of this Sublease) possession of and vacate the Premises
immediately and shall deliver possession thereof to
Sublessor, and Sublessee hereby grants to Sublessor, to
the extent permitted by applicable law, full and free
license to thereupon enter the Premises, in whole or in
part, with or without process of law, to change any and
all door locks without notice of from whom, the new key
may be obtained, to deny Sublessee access to the
Premises and to expel or remove Sublessee and any other
person, firm or corporation who may be occupying the
Premises or any part thereof and remove any and all
property therefrom, using such lawful force as may be
necessary. Upon either Sublessor's termination of this
Sublease or termination of Sublessee's right of
possession to the Premises without terminating this
Sublease, as provided herein, Sublessor shall in either
such event be entitled to recovery from Sublessee of
all damages to which Sublessor may be entitled
hereunder or at law by virtue thereof, including
(without limitation) all costs and losses incurred by
Sublessor as a result of the Event of Default by
Sublessee hereunder and any expenses which Sublessor
may incur in effecting compliance with Sublessee's
obligations under this Sublease, all of which sums
Sublessee agrees to reimburse to Sublessor on demand.
C. No Termination or Waiver. Institution of a
forcible detainer action to re-enter the Premises shall not
be construed to be an election by Sublessor to terminate
this Sublease. Sublessor may collect and receive any Rent
due from Sublessee and the payment thereof shall not
constitute a waiver of or affect any notice or demand given,
suit instituted, or judgment obtained by Sublessor, or be
held or deemed to waive or alter the rights or remedies
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which Sublessor may have at law or in equity or by virtue of
this Sublease at the time of such payment.
D. Remedies Non-exclusive. All rights and remedies of
Sublessor enumerated in this Sublease shall be cumulative
and shall not exclude any other right or remedy allowed by
law- All such rights and remedies may be exercised and
enforced concurrently, whenever and as often as necessary.
14. Miscellaneous Provisions.
A. Governing Law and Forum. THIS SUBLEASE SHALL BE
GOVERNED BY AND CONSTRUED UNDER AND IN ACCORDANCE WITH THE
LAWS OF THE JURISDICTION IN WHICH THE PREMISES ARE LOCATED.
BY EXECUTING THIS SUBLEASE, EACH PARTY HERETO EXPRESSLY (a)
CONSENTS AND SUBMITS TO PERSONAL JURISDICTION CONSISTENT
WITH THE PREVIOUS SENTENCE, (b) WAIVES TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY CLAIM OR DEFENSE THAT SUCH VENUE IS
NOT PROPER OR CONVENIENT AND (c) CONSENTS TO SERVICE OF
PROCESS IN ANY MANNER AUTHORIZED BY APPLICABLE LAW. ANY
FINAL JUDGMENT ENTERED IN AN ACTION BROUGHT HEREUNDER SHALL
BE CONCLUSIVE AND BINDING UPON THE PARTIES HERETO.
B. Parties Bound. This Sublease shall be binding on
and inure to the benefit of each of the parties hereto and
their respective successors and permitted assigns.
Notwithstanding anything to the contrary set forth herein,
it is hereby agreed. that Sublessor has the right to assign,
transfer, pledge or otherwise convey any interest of
Sublessor in the Premises, the Primary Lease and/or this
Sublease, and Sublessee agrees that in the event of any such
transfer, Sublessor shall automatically be released from all
liability under this Sublease accruing from and after the
date of such transfer of interest by Sublessor, and
Sublessee agrees to thereupon look solely to the transferee
for the performance of Sublessor's obligations hereunder
accruing from and after the date of such transfer of
interest by Sublessor.
C. Partial Invalid. In case any one or more of the
provisions contained in this Sublease shall for any reason
be held to be invalid, illegal, or unenforceable in any
respect, such invalidity, illegality, or unenforceability
shall not affect any other provisions hereof and this
Sublease shall be construed as if such invalid, illegal, or
unenforceable provisions had never been included herein.
D. Prior Agreements Superseded. This Sublease
constitutes the sole and entire agreement of the parties
with respect to the subject matter hereof and supersedes any
prior understandings or written or oral agreement between
the parties respecting such subject matter.
E. Disclaimer of Warranty. SUBLESSEE HEREBY EXPRESSLY
DISCLAIMS ANY IMPLIED WARRANTY THAT THE PREMISES ARE
SUITABLE FOR SUBLESSEE'S INTENDED PURPOSE, AND SUBLESSEE'S
OBLIGATION TO PAY RENT AND OTHER CHARGES HEREUNDER IS NOT
DEPENDENT UPON THE CONDITION OF THE PREMISES OR THE
PERFORMANCE BY SUBLESSOR OF ANY OBLIGATIONS HEREUNDER.
SUBLESSEE SHALL CONTINUE TO PAY THE RENT AND OTHER
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CHARGES DUE AND PAYABLE BY SUBLESSEE HEREUNDER WITHOUT
ABATEMENT, SET OFF OR DEDUCTION, NOTWITHSTANDING ANY BREACH
OR ALLEGED BREACH BY SUBLESSOR OF SUBLESSOR'S DUTIES OR
OBLIGATIONS HEREUNDER, WHETHER EXPRESS OR IMPLIED.
F. Attorney's Fees. If any action at law or in
equity, including an action for declaratory relief, is
brought by other party hereto to enforce or interpret the
provisions of this Sublease, the prevailing party in such
action shall be entitled to recover from the non-prevailing
party such prevailing party's reasonable attorney's fees and
costs incurred, which fees and costs may be set by the court
in the trial of such action or may be enforced in a separate
action for that purpose, and which fees and costs shall be
in addition to any other relief which may be awarded in such
action.
G. Counterpart. To facilitate execution of this
Sublease, this Sublease may be executed in one or more
counterparts as may be convenient or required, and alt,
executed copy of this Sublease delivered by facsimile shall
have the effect of an original, executed instrument. All
counterparts of this Sublease shall collectively constitute
a single instrument; but, in making proof of this Sublease,
it shall not be necessary to produce or account for More
than one such counterpart. It shall not be necessary for the
signature of, or on behalf of, each party hereto, or that
the signature of all persons required to bind any such
party, appear on each counterpart of this Sublease. Each
signature page to any counterpart of this Sublease may be
detached from such counterpart without impairing the legal
effect of the signatures thereon and thereafter attached to
another counterpart of this Sublease identical thereto
except having attached to it additional signature pages.
H. No Offer. The submission of this Sublease to
Sublessee shall not be construed as an offer, nor shall
Sublessee have any rights hereunder or to the Premises,
unless and until Sublessor shall have executed a copy of
this Sublease and delivered the same to Sublessee.
I. Time of Essence. Time is of the essence in this
Sublease.
J. Survival of Sublessee Obligations. Sublessee's
obligations under this Sublease (including, without
limitation, each indemnity agreement and hold harmless
agreement of Sublessee contained herein) shall survive the
expiration or earlier termination of this Sublease.
K. Only Sublessor/Sublessee Relationship. Nothing
contained in this Sublease shall be deemed or construed by
the parties hereto or by any third party to create the
relationship of principal and agent, partnership, joint
venture or any association between Sublessor and Sublessee,
it being expressly understood and agreed that nothing
contained in this Sublease shall be deemed to create any
relationship between Sublessor and Sublessee other than the
relationship of sublessor and sublessee,
L. Headings Miscellaneous. The captions and/or
headings of the several articles, paragraphs and sections
contained herein are for convenience only and do not define,
limit or construe the contents of such articles, paragraphs
or sections. Any reference herein to an article, paragraph
or section shall mean and refer to an article, paragraph or
section of this
10
Sublease unless otherwise expressly specified herein. This
Sublease may not be amended or modified by any act or
conduct of the parties or by oral agreements unless reduced
and agreed to in writing signed by both Sublessor and
Sublessee. No waiver of any of the terms of this Sublease
shall be binding upon Sublessor unless reduced to writing
and signed by Sublessor. Neither Sublessor's failure to
enforce or require strict performance of any provision of
this Sublease, nor Sublessor's acceptance of Rent or other
charges with knowledge of a breach, default or Event of
Default hereunder, shall be a waiver of such breach, default
or Event of Default or any future breach, default or Event
of Default hereunder.
M. Notices. Any notice under this Sublease must be in
writing, and shall be given or served by (i) personal
delivery via a recognized independent courier service
(providing reasonable proof of such delivery), (ii)
depositing the same in the United States mail, postage
prepaid, certified mail, return receipt requested, in either
such event addressed to the party to be notified at the
address stated in this Sublease hereinbelow or such other
address in the continental United States of which notice has
been given to the other party in the manner provided herein,
or (iii) via facsimile to the respective fax numbers of the
parties hereto as set forth hereinbelow, with either
electronic or telephonic verification of receipt, so long as
the original of the facsimile notice is deposited in the
United States mail within three (3) days thereafter. Notice
by personal delivery or via courier shall be effective upon
receipt, notice by mail shall be effective upon deposit in
the United States mail in the manner described above and
notice by facsimile shall be effective upon electronic or
telephonic verification of receipt.
N. Interpretation. When used herein, the singular
includes the plural and the plural the singular, and words
importing any gender include the other gender. The terms and
conditions of this Sublease represent the result of
negotiations between Sublessor and Sublessee, each of which
were represented and/or had the opportunity to be
represented by independent counsel and neither of which has
acted under compulsion or duress; consequently, the normal
rule of construction that any ambiguity be resolved against
the drafting party shall not apply to the interpretation of
this Sublease or of any exhibits, addenda or amendments
hereto.
0. Exhibits. All exhibits attached to this Sublease
are deemed to be incorporated in this Sublease as if fully
set forth hereinabove.
P. Holidays. In the event that the date upon which
any of the duties or obligations hereunder to be performed
shall occur upon a Saturday, Sunday or legal holiday, then,
in such event, and provided that performance of such
obligation is not earlier required under the Primary Lease,
the due date for performance of any duty or obligation shall
thereupon be automatically extended to the next succeeding
business day.
Q. Authority. The individual executing this Sublease
on behalf of Sublessee represents and warrants to Sublessor
that Sublessee has 'full right and authority to enter into
this Sublease and performance obligations hereunder.
R. Entry by Sublessor. Sublessor and its
representatives shall have the right, at all reasonable
times, to enter upon the Premises for the ,purpose of
examining and inspecting the same; provided, however, this
section shall not be construed as imposing any obligation
upon Sublessor to inspect the Premises.
11
S. Waiver of Jury Trial. IT IS AGREED BY AND BETWEEN
SUBLESSOR AND SUBLESSEE THAT THE RESPECTIVE PARTIES HERETO
SHALL AND THEY HEREBY DO, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, WAIVE TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER OF TIIE PARTIES
HERETO AGAINST THE OTHER ON ANY MATTERS ARISING OUT OF OR IN
ANY WAY CONNECTED WITH THIS SUBLEASE, THE RELATIONSHIP OF
SUBLESSOR AND SUBLESSEE, OR SUBLESSEE'S USE OR OCCUPANCY OF
THE PREMISES. SUBLESSEE FURTHER AGREES THAT, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, SUBLESSEE SHALL NOT IMPOSE ANY
COUNTERCLAIM IN A SUMMARY PROCEEDING OR IN ANY ACTION BASED
ON NONPAYMENT OF RENT OR ANY OTHER PAYMENT REQUIRED BY
SUBLESSEE HEREUNDER.
T. Defined Terms. Unless otherwise specifically
defined in this Sublease, capitalized terms utilized in this
Sublease shall have the meaning ascribed to such terms in
the Primary Lease,
U. Sublessor's Cortractual Security Interest and
Lien. Sublessor shall have a lien upon, and Sublessee hereby
grants to Sublessor a security interest in, all personal
property, furniture and equipment of Sublessee located in
the Premises as security for the payment of all Rent and the
performance of all other obligations of Sublessee required
by this Sublease. At any time after an Event of Default by
Sublessee occurs hereunder, Sublessor may seize and take
possession of any and all such personal property and
equipment in accordance with applicable law, and Sublessor
shall have the right, after twenty (20) days' written notice
to Sublessee, to sell such personal property and equipment
so seized at public or private sale and upon such terms and
conditions as to Sublessor may appear advantageous. After
the payment off all charges incident to such sale, the
proceeds of such sale shall be applied to the payment of any
and all amounts due to Sublessor pursuant to this Sublease.
In the event there shall be any surplus remaining after the
payment of all amounts due to Sublessor, such surplus shall
be held by Sublessor and applied in payment of .future Rent
as it becomes due and any surplus remaining after payment of
all such Rent shall be paid over to Sublessee. In its
exercise of rights pursuant to this paragraph, Sublessor
shall have all of the rights and remedies of a secured party
under the Uniform Commercial Code or other equivalent and
applicable laws of the jurisdiction in which the Premises
are located which relate to the grant and perfection off
security interests of the nature granted pursuant to this
paragraph, and, upon request by Sublessor, Sublessee shall
execute and deliver to Sublessor a financing statement or
equivalent or similar applicable instrument in form
sufficient under applicable law to perfect the security
interest of Sublessor in the aforementioned personal
property, furniture and equipment and all proceeds thereof.
A photographic reproduction of this Sublease shall be
sufficient as a financing statement, but shall be fled as
such only in the event Sublessee fails to execute and
deliver a financing statement requested by Sublessor
hereunder within five (5) business days of such request.
V. Landlord's Consent. Sublessor and Sublessee each
hereby agree that, pursuant to the Primary Lease, Landlord
must consent to this Sublease and the terms of this
Sublease. Accordingly, as a condition precedent to the
effectiveness of this Sublease, Landlord must execute and
deliver to Sublessor within thirty (30) days after the
Effective Date of this Lease a Landlord's Consent to
Sublease in form and substance substantially similar to that
set
12
forth on Exhibit "B" attached hereto and made a part hereof
for all purposes. In the event Sublessor fails to obtain the
Landlord's Consent to Sublease within such thirty (30) day
period, this Sublease shall terminate and shall be of no
further force or effect, in which event neither party shall
have any further rights or obligations hereunder, except as
is otherwise provided hereunder (including, for example, but
without limitation, the survival, notwithstanding such
termination, of any indemnity obligations which by the
express terms of this Sublease survive the expiration or
termination hereof).]
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK.]
13
IN WITNESS WHEREOF, the parties hereto have caused this Sublease
to be executed by their respective duly authorized
representatives, effective as of the date first hereinabove
written.
SUBLESSOR: TBA ENTERTAINMENT GROUP PHOENIX, INC.
an Arizona corporation
By: /s/
Name: Xxx Xxxxxxx
Title: Vice President, Corporate Administration
Address: 0000 Xxxxx Xxxx., Xxxxx 000
Xxx Xxxxx, XX 00000
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
SUBLESSEE:
iWIZARD HOLDING
a Nevada corporation
By: /s/
Name:
Title:
Address: 0000 X. Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Phone No.: (000) 000-0000
Fax No.:______________________
List of Exhibits
Exhibit "A" = Copy of Primary Lease
Exhibit "B" = Landlord's Consent to Sublease
14
EXHIBIT "A"
PRIMARY LEASE
(A redacted copy of the Primary Lease follows this cover page)
15
EXHIBIT "B"
LANDLORD'S CONSENT TO SUBLEASE
WHEREAS, pursuant to that Office Lease agreement (the
"Primary Lease") dated July 30, 2001, TBA Entertainment Group
Phoenix, Inc. ("Sublessor"), did lease from The Xxxxxxx Companies
("Landlord") those premises described therein (the "Premises");
WHEREAS, Sublessor desires to sublease to iWizard Holding,
Inc., the Premises as provided in the foregoing Sublease
Agreement;
WHEREAS, the Primary Lease requires that Sublessor receive
the prior written consent of Landlord to any subletting of the
Premises or any part thereof;
WHEREAS, Landlord has received a copy of the foregoing
Sublease Agreement;
NOW THEREFORE, in consideration of the premises contained
herein, the undersigned hereby consents to the sublease of a
portion of the Premises in accordance with the foregoing Sublease
Agreement and to the grant and assignment by Sublessor to
Sublessee of certain rights and benefits in and under the Primary
Lease as set forth in such Sublease Agreement, and Landlord
hereby acknowledges and agrees that such subletting, grants and
assignments pursuant to the terms and provisions of the foregoing
Sublease Agreement do not and shall not be deemed to constitute a
default, event of default or breach under the Primary Lease;
provided, however, (i) all other terms of the Primary Lease and
all obligations of Sublessor under the Primary Lease shall remain
in full force and effect and shall not be modified hereby or by
the Sublease Agreement, (ii) Sublessee's use and occupancy of the
Premises shall, except as otherwise provided in this consent, be
subject to all terms and conditions of the Primary Lease, (iii)
any violation by Sublessee of the terms and conditions of the
Primary Lease shall constitute a default thereunder, for which
Sublessor shall be fully liable, (iv) the undersigned shall have
no responsibility or obligation for performance by Sublessor of
its obligations under the Sublease and (v) nothing herein shall
be deemed to be a consent to any future or additional sublease of
the Premises and nothing herein shall be deemed to modify any
terms of the Primary Lease. In conjunction with Landlord's
consent hereby to the aforesaid Sublease Agreement, Landlord
hereby waives and releases any right to recapture of the Premises
or termination of the Lease by virtue of such Sublease Agreement,
including as provided under Article 16 of the Primary Lease.
EXECUTED THIS _____ day of March, 2002
THE XXXXXXX COMPANIES
By: /s/
Print Name: Xxx Xxxxxx
Title: Owner
16
OFFICE LEASE AGREEMENT
This Office Lease Agreement (referred to as the "Lease" or
"Agreement") is entered into by Landlord and Tenant as of the
Lease Date defiued below.
BASIC LEASE INFORMATION AND DEFINED TERMS
Landlord and Tenant agree that the following terms, when
used in this Lease with initial capital letters, will be given
the meanings established below. Additional defined terms are
located in the General Terms and Conditions of this Lease.
Lease Date: July _____, 2001. The Lease Date will
be used for reference purposes only.
The. "Execution Date" means the later of
the dates of execution of this Lease by
Landlord or Tenant, as evidenced below
the signature blocks at the end of this
Lease.
Landlord: The Xxxxxxx Companies
Landlord's Address: The Xxxxxxx Companies
0000 Xxxxx Xxxxx Xxxxx, # 000
Xxxxxxxxxx, XX 00000
Attention: Mr. Torn Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Tenant: TBA Entertainment Group Phoenix, Inc.,
an Arizona corporation, and
TBA Entertainment Corporation, a
Delaware corporation
Tenant's Address: 00000 Xxxxxxx Xxxx.
Xxxxxx, XX 00000
Attention: Controller
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a simultaneous copy to:
TBA Corporate Communications & Entertainment
Attention: Xxx Xxxxxxx
0000 Xxxxx Xxxx., Xxx. 000
Xxx Xxxxx, XX 00000-0000
Telephone: (630) 990-250
Facsimile: (000) 000-0000
Project The office project known as the "XxXxxxx
Building"
located at 0000 X. 00" Xxx Xxxxxxxxxx,
Xxxxxxx 00000.
Building The current ono-story office building
designated as the XxXxxxx Building.
Building Address: 0000 X. 00xx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Leased Premises: The portion of the Building designated
on Exhibit "A" to this Lease,
comprising space/suite 102 in the
Building.
Rentable Area of the
Leased Premises: 3,673 square feet, including a load
factor of 5.7 %.
Building Rentable Area: 10,168 square feet.
Project Rentable Area: 10,168 square feet.
Commencement Date: Subject to Section 2.04 below, the later of
(i) the issuance of a Certificate of Occupancy; or (ii) September
30, 2001.
Term: The Initial Term and any applicable Extension Term.
Initial Term: Sixty (60) months calculated from the
first day of the calendar month
immediately following the month in
which the Conunencement Date occurs
(or calculated from the Commencement
Date if that date occur on the first
of the month).
Extension Term: One (1) additional five-year term (the
"Extension Term").
Security Deposit: $0. The Security Deposit requirement has
been waived.
Minimum Monthly Rent: One twelfth (1/12) of the amount
obtained by multiplying the applicable
annual base rent per square foot for
the Leased Premises by the number of
square feet in the Rentable Area of
the Leased Premises, as set forth more
specifically below:
$7,346.00 per mouth for Lease Year One
($24.00 x 3,673 square feet x 1/12)
$7,494.04 per month for Lease Year Two
($24.50 x 3,673 square feet x 1/12) .
$7,652.08 per month for Lease Year
Three ($25.00 x 3,673 square feet x
1/12)
$7,805.12 per month for Leme Year Four
($25.50 x 3.673 square feet x 1/12)
$7,958.00 per mouth for Lease Year
Five ($26.00 x 3,673 square feet x
1/12)
Base Year: The first full 12 months of the first
lease year of the Term. Tenant's Proportionate
Share of Project Expenses: 36.1% (determined by dividing the
Rentable Area of the Leased Premises by
the Project Rentable Area and
multiplying the resulting quotient to
the second decimal place by one
hundred). This percentage will be
modified if there is any increase or
decrease in the size of the Project
after the Lease Date.
Permitted Uses: The Leased Premises will be used solely for
office use. Scheduled Plan
Delivery Date: Tenant must provide written approval of and sign-
off on the Approved Plans within fifteen (15) days after Tenant
executes this Lease.
Scheduled Completion
Date: September 30, 2001.
Parking Charge: None.
Tenant Improvement Allowance: Not applicable.
