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EXHIBIT 10.41
SUBLEASE AGREEMENT
THIS SUBLEASE AGREEMENT (this "Sublease") is made this twenty-third day
of June 1997, by and between ACG (U.S.) Inc., having an office at 0000 X.
Xxxxxxx Xxxxxx, Xxxxx Xxx, Xxxxxxxxxx 00000-0000 ("Sublessor"), and Graphix
Zone, a California corporation, dba Ignite incorporated, having an office at 00
Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxx, XX 00000 ("Sublessee)".
RECITALS
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A. Whereas, Sublessor, as lessee, entered into a lease with DAIMLER
COMMERCE PARTNERS, L.P., a California limited partnership, as lessor (the
"Prime Lessor"), dated August 1, 1996, leasing certain space at 0000 X. Xxxxxxx
Xxxxxx, Xxxxx Xxx, Xxxxxxxxxx 00000-0000 (the "Prime Premises"), which lease is
hereinafter referred to as the "Prime Lease."
B. Whereas, Sublessor and Sublessee have agreed that Sublessor shall
sublet approximately 2,100 square feet of the Prime Premises to Sublessee (the
"Subleased Premises") as depicted on Exhibits "A" and "B" attached hereto and
incorporated herein.
COVENANTS
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NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereby agree as
follows:
1. Premises. Sublessor, hereby subleases to Sublessee the Subleased
Premises subject to the terms and conditions contained herein.
2. Term. The term of this Sublease (the "Term") shall commence on June
23, 1997 (the "Commencement Date"), and continue on a month to month basis
until (unless sooner terminated by Sublessor and Sublessee pursuant to the
terms hereof) the termination of the Prime Lease as provided in Section 1.05 of
the Prime Lease (the "Termination Date"). Notwithstanding the foregoing,
Sublessor and Sublessee may each terminate this Sublease upon thirty (30) days'
written notice to the other party.
3. Rent.
(a) During the term hereof, Sublessee shall pay Sublessor as rent
for the Sublease of the Subleased Premises $1,785.00 per month. The sublessee
shall pay for its own utilities, liability and property insurance, janitorial
service, security alarm service and all other normal facility expenses; except
(i) real property tax, (ii) premiums, costs, expenses and deductibles of
insurance maintained by Prime Lessor or Sublessor pursuant to the Prime Lease,
and (iii) common area maintenance costs.
(b) Upon execution of this Sublease, Sublessee shall pay to
Sublessor the Rent due for the first month of the Term. All Rent payable
hereunder shall be paid in advance on the first day of each succeeding calendar
month during the Term, with Rent due hereunder apportioned for any fractional
calendar months for which Rent is due. All payments required
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to be made by Sublessee pursuant to the terms hereof shall be paid in lawful
money of the United States of America, without notice, setoff, or deduction, at
the address of Sublessor set forth above, or such other place as Sublessor may
from time to time designate in writing.
4. Use. The Subleased Premises shall be used for the Permitted Uses set
forth in the Prime Lease and for no other purpose.
5. Assignment. Sublessee shall not assign this Sublease nor sublet the
Subleased Premises in whole or in part; and shall not permit Sublessee's
interest in this to be vested in any third party by operation of law or
otherwise.
6. Services and Rights. Notwithstanding anything herein contained, the
only services or rights to which Sublessee is entitled hereunder are those to
which Sublessor is entitled under the Prime Lease and that for all such services
and rights Sublessee will look to the Prime Lessor.
7. Indemnity. Sublessee shall neither do nor permit anything to be done
which would cause the Prime Lease to be terminated or forfeited by reason of any
right of termination or forfeiture reserved or vested in the Prime Lessor and
Sublessee shall indemnify and hold Sublessor harmless from and against all
claims of any kind whatsoever by reason of any breach or default on the part of
Sublessee under the Prime Lease or any other act or omission by Sublessee, its
employees, agents, contractors and invitees on or about the Subleased Premises
or the Prime Premises or otherwise arising out of or related to this Sublease
except and to the extent caused by the gross negligence or willful misconduct of
Sublessor.
8. Security Deposit. Sublessee shall pay the Sublessor on the execution
and delivery of this Sublease the sum of Seventeen hundred and eight five
dollars ($1,785.00) as security for the full and faithful performance of the
terms, covenants and conditions of this Sublease on Sublessee's part to be
performed or observed, including but not limited to payment of Rent and
additional rent or for any other sum which Sublessor may expend or be required
to expend by reason of Sublessee's default, including any damages or deficiency
in reletting the Subleased Premises, in whole or in part, whether such damage
shall accrue before or after summary proceedings or other re-entry by Sublessor.
If Sublessee shall fully and faithfully comply with all the terms, covenants and
conditions of this Sublease on Sublessee's part to be performed or observed, the
security, or any unapplied balance thereof, shall be returned to Sublessee after
the time fixed as the expiration of the demised term and after surrender of
possession of the Subleased Premises to Sublessor and/or Prime Lessor.
9. Possession. Sublessee hereby acknowledges that Sublessee has
accepted the Subleased Premises in their existing condition "as is" and that
Sublessor has made no representations or warranties concerning the condition of
the Subleased Premises, whether the condition complies with the requirements of
law or as to its fitness for the use intended by Sublessee.
10. Prime Lease. It is expressly understood, acknowledged and agreed by
Sublessee that all of the terms, conditions and covenants of the Prime Lease,
except as expressly modified by the terms of this Sublease, shall apply to this
Sublease, as though such
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terms, conditions and covenants were fully set forth herein. Sublessee shall
and hereby agrees to be subject to and bound by and to comply with all of the
provisions of the Prime Lease, except as expressly modified by the terms of
this Sublease, to satisfy all applicable terms and conditions of the Prime
Lease, except as expressly modified by the terms of this Sublease, for the
benefit of both Sublessor and Prime Lessor. It is understood and agreed that
wherever in those provisions of the Prime Lease the word "Tenant" appears, for
the purposes of this Sublease, the word "Sublessee" shall be substituted, and
wherever in those provisions of the Lease the word "Landlord" appears, for the
purposes of this Sublease, the word "Sublessor" shall be substituted. Upon the
breach of any of those terms, conditions or covenants of the Lease, except as
expressly modified by the terms of this Sublease, by Sublessee or upon the
failure of Sublessee to pay Rent or comply with any of the provisions of this
Sublease, Sublessor may exercise any and all rights and remedies granted to
Sublessor by the Lease. In the event of any conflict between this Sublease and
the Lease, except as otherwise specifically provided in this Sublease, the
terms of the Lease shall control. Sublessee hereby acknowledges that it has
read and is familiar with the terms of the Prime Lease and agrees that this
Sublease is subordinate and subject to the Prime Lease and that any termination
thereof without the fault of Sublessor shall likewise terminate this Sublease.
11. Late Charges. Sublessee's failure to pay rent promptly may cause
sublessor to incur unanticipated costs. The exact amount of such costs are
impractical or extremely difficult to ascertain. Such costs may include, but
are not limited to, processing and accounting charges and late charges which
may be imposed on Sublessor by third parties. Therefore, if sublessor does not
receive any rent payment within ten (10) days after it becomes due, sublessee
shall pay sublessor a late charge equal to ten percent (10%) of the overdue
amount. The parties agree that such late charge represents a fair and
reasonable estimate of the costs sublessor will incur by reason of such late
payment.
12. Interest on Past Due Obligations. Any amount owed by sublessee to
sublessor which is not paid when due shall bear interest at the rate of fifteen
percent (15%) per annum from the due date of such amount. However, interest
shall not be payable on late charges to be paid by sublessee under this
sublease. The payment of interest on such amounts shall not excuse or cure any
default by sublessee under this sublease. If the interest rate specified in
this sublease is higher than the rate permitted by law, the interest rate is
hereby decreased to the maximum legal interest rate permitted by law.
13. Legal Costs. If sublessee or sublessor shall be in breach or
default under this sublease, such party (the "Defaulting Party") shall
reimburse the other party (the "Nondefaulting Party") upon demand for any costs
or expenses that the Nondefaulting Party incurs in connection with any breach
or default of the defaulting Party under this sublease, whether or not suit is
commenced or judgment entered. Such costs shall include legal fees and costs
incurred for the negotiation of a settlement, enforcement of rights or
otherwise. Furthermore, if any action for breach of or to enforce the
provisions of this sublease is commenced, the court in such action shall award
to the party in whose favor a judgment is entered, a reasonable sum as
attorneys' fees and costs. The losing party in such action shall pay such
attorneys' fees and costs. Sublessee shall also indemnify sublessor against and
hold sublessor harmless from all costs, expenses, demands and liability
sublessor may incur if sublessor becomes or is made a party to any claim or
action (a) instituted by sublessee against any third party, or by any third
party against sublessee, or by or against any person
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holding any interest under or using the Property by license of or agreement
with sublessee; (b) for foreclosure of any lien for labor or material
furnished to or for sublessee or such other person; (c) otherwise arising out
of or resulting from any act or transaction of sublessee or such other person;
or (d) necessary to protect sublessor's interest under this sublease in a
bankruptcy proceeding, or other proceeding under Title 11 of the United States
Code, as amended. Sublessee shall defend sublessor against any such claim or
action at sublessee's expense with counsel reasonably acceptable to sublessor
or, at sublessor's election, sublessee shall reimburse sublessor for any legal
fees or costs sublessor incurs in any such claim or action.
14. Sole Agreement. This Sublease, its Exhibits and the Prime Lease
and its Exhibits constitute the entire agreement between the parties hereto
pertaining to the subject matter hereof, and the final, complete and exclusive
expression of the terms and conditions hereof. All prior agreements,
representations, negotiations and understandings of the parties, oral or
written, express or implied, are superseded hereby and merged herein.
15. Notices. All notices and demands that may or are required to be
given by either party to the other hereunder shall be in writing. All notices
and demands by Sublessor to Sublessee shall be personally delivered, posted or
sent by United States certified or registered mail, postage prepaid, addressed
to Sublessee at the Subleased Premises. All notices and demands by Sublessee to
Sublessor shall be personally delivered or sent by United States certified or
registered mail, postage prepaid, addressed to Sublessor at the Prime Premises,
or to such other place as Sublessor may from time to time designate in a notice
to the Sublessee.
16. Relationship. Nothing herein contained shall be construed as
creating a partnership or joint venture between Sublessor and Sublessee or
between Sublessor and any other party, or cause Sublessor to be responsible in
any way for the debts or obligations of Sublessee or any other party.
17. Severability. In case any provision of this Sublease is invalid,
illegal or unenforceable, such provision shall be severable from the rest of
this Sublease, and the validity, legality and enforceability of the remaining
provisions hereof shall not in any way be affected or impaired thereby.
18. Governing Law. This Sublease shall be governed by and construed in
all respects according to the laws of the State of California, as such laws are
applied to contracts between California residents entered into and to be
performed entirely within California.
19. Headings. Headings of the sections of this Sublease are inserted
for convenience only and shall not be deemed to constitute a part hereof.
20. Amendment. This Sublease may be modified or amended only by
written instrument duly executed by the parties hereto.
21. Counterparts. This Sublease may be executed in one or more
counterparts, each of which shall be deemed an original, but shall in the
aggregate constitute one and the same document.
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IN WITNESS WHEREOF, the parties hereto have caused these presents to be
executed the day and year first above written.
Sublessee:
Ignite Incorporated
a California corporation
By: /s/ XXXXX XXXXXXXXXX
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Name: Xxxxx Xxxxxxxxxx
Title: President
Sublessor:
ACG (U.S.) Inc.,
a California corporation
By: /s/ XXXX XXXXXXX
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Xxxx XxXxxxx, Ph.D.
President
PRIME LESSOR'S CONSENT
The undersigned, the Prime Lessor referred to in the foregoing Sublease,
hereby consents to subleasing of the Subleased Premises in accordance with the
terms and conditions of the foregoing Sublease. This consent does not
constitute any waiver of Prime Lessor's rights related to any other subleasing
or assignment of the Prime Premises or rights to consent to any amendment or
modification of the foregoing Sublease all in accordance with the terms and
conditions of the Prime Lease.
DAIMLER COMMENCE PARTNERS, L.P.,
a California limited partnership
By: CONIFER INVESTMENTS, INC.,
a California corporation
Its General Partner
By: /s/ XXXXXX XXXX
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Xxxxxx Xxxx
President
Dated: 07/15/97
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