SUBLEASE
--------
THIS SUBLEASE (this "Sublease") is made and entered into as of the 31st day
of March, 2005, by and between GATEWAY, INC., a Delaware corporation
(hereinafter called "Sublandlord"), and SPACEDEV, INC., a Colorado corporation
(hereinafter called "Subtenant");
W I T N E S S E T H:
-------------------
WHEREAS, by that certain Lease with reference date of May 14, 2001 (the
"Prime Lease"), a copy of which Prime Lease is attached hereto as Exhibit "A"
and by this reference made a part hereof, Xxxxxx Investment Properties, LLC,
successor to SDC Lincoln Business Center, Inc. (hereinafter, together with its
succes-sors and assigns, called "Landlord"), leased to Sublandlord certain
premises containing approximately 11,069 gross rentable square feet referred to
as Suite 400 (the "Premises") in the building located at 00000 Xxxxxxx Xxxx (the
"Building") in Poway, all as more specifically set forth in the Prime Lease; and
WHEREAS, Subtenant desires to sublease from Sublandlord, and Sublandlord
desires to sublease to Subtenant, the entire Premises, all upon the terms and
subject to the conditions and provisions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
cove-nants and promises contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby mutually
acknowledged, Sublandlord and Subten-ant hereby agree as follows:
1. DEMISE; USE. Sublandlord hereby leases to Subtenant and Subtenant
hereby leases from Sublandlord the Sublease Premises for the term and rental and
upon the other terms and conditions hereinafter set forth, to be used and
occupied by Subtenant solely for the purpose of general office, storage,
shipping and receiving, warehouse use and related ancillary uses all as may be
permitted under and subject to the Prime Lease and otherwise in compliance with
applicable zoning rules, regulations and ordinances and all covenants,
conditions and restrictions of record and for no other use or purpose.
2. TERM. The term of this Sublease shall commence (the "Commencement
----
Date") on the later to occur or (i) the date upon which this Sublease is fully
executed and the Landlord has delivered its consent hereto, and (ii) April, 1,
2005, unless sooner termi-nated pursuant to the provisions hereof, shall
terminate on the earlier of (x) August 31, 2006 and (y) the prior termination of
the Term of the Prime Lease. As used herein, the phrase "Lease Year" shall mean
the twelve calendar month period commencing on the Commencement Date (as
hereinafter defined) (or, if the Commencement Date is not the first day of a
calendar month, then commencing on the first day of the calendar month during
which the Commencement Date occurs) and each anniversary thereof, except that
the last Lease Year may not be twelve calendar months and shall terminate on the
last day of the term of this Sublease. Sublandlord and Subtenant hereby
acknowledge and agree that in no event shall this Sublease be deemed an
assignment of the Prime Lease, notwithstanding that the term of this Sublease
extends to the expiration of the term of the Prime Lease.
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3. BASE RENT.
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(a) Commencing upon the Commencement Date, Subtenant shall pay to
Sublandlord base annual rental (hereinafter called "Base Rent") for the
Premises as follows:
ANNUAL BASE RENT ANNUAL BASE RENT
RATE PER RENTABLE (BASED ON 11,069 MONTHLY
TIME PERIOD . . . SQUARE FOOT RENTABLE SQUARE FEET) INSTALLMENTS
----------------- ------------------ ---------------------- -------------
First Lease Year. $ 7.20 $ 79,696.80 $ 6,641.40
----------------- ------------------ ---------------------- -------------
Second Lease Year $ 7.42 $ 82,131.98** $ 6,844.33
----------------- ------------------ ---------------------- -------------
**The parties acknowledge and agree that the second Lease Year is not a full
calendar year and that Annual Base Rent for the second Lease Year has been set
forth for illustrative purposes only.
Each such installment shall be due and payable in advance on the fifth day prior
to the first day of each calendar month of the term hereof. If the term of this
Sublease commenc-es on a day other than the first day of a month or ends on a
day other than the last day of a month, Base Rent for such month shall be
prorated; prorated Base Rent for any such partial first month of the term hereof
shall be paid on the date on which the term commences. Notwithstanding anything
in this Sublease to the contrary, Subtenant shall pay to Sublandlord the first
monthly installment of Base Rent due under this Sublease upon the execution and
delivery of this Sublease by Subtenant to Sublandlord.
(a) All Base Rent and additional rent shall be paid without setoff or
deduction whatsoever and shall be paid to Sublandlord at the following address:
Real Estate Administration, Gateway, Inc., 000 Xxxxxxx Xxxxx X00, Xxxxx Xxxxx
Xxxx, Xxxxx Xxxxxx 00000 or at such other place as Sublandlord may designate by
notice to Subtenant.
4. ADDITIONAL RENT; PAYMENTS; INTEREST.
a) Except for "Annual Rent" (as such term is defined Section 3 of the
Prime Lease and for the payment of which Subtenant shall have no obligation
under this Sublease), Subtenant shall also pay to Sublandlord all other amounts
payable by Sublandlord under the Prime Lease which are attribut-able to the
Sublease Premises or attributable to Subtenant, its agents, employees,
customers or invitees, including, without limitation, the payment of Direct
Expenses and Taxes , as set forth in Section 4 of the Prime Lease, and
utilities, as set forth in Section 13 of the Prime Lease. By way of example and
not by way of limitation, charges by Landlord for costs incurred by Landlord in
repairing damage to the Building caused by an employee of Subtenant, increased
insurance premiums due as a result of Subtenant's use of the Sublease Premises,
and amounts expended or incurred by Landlord on account of any default by
Subtenant which gives rise to a default under the Prime Lease would be amounts
payable by Subtenant pursuant to this Subsection 4(a).
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(b) Each amount due to pursuant to Subsection 4(a) above and each other
amount payable by Subtenant hereunder, unless a date for payment of such amount
is provided for elsewhere in this Sublease, shall be due and payable on the
fifth day following the date on which Landlord or Sublandlord has given notice
to Subtenant of the amount thereof, but in no event later than the date on which
any such amount is due and payable under the Prime Lease.
(c) All amounts other than Base Rent payable to Sublandlord under this
Sublease shall be deemed to be additional rent due under this Sublease. All
past due installments of Base Rent and additional rent shall bear interest from
the date due until paid at the rate per annum equal to five percent (5%) in
excess of the Prime Rate (as hereinafter defined) in effect from time to time,
which rate shall change from time to time as of the effective date of each
change in the Prime Rate, unless a lesser rate shall then be the maximum rate
permissible by law with respect thereto, in which event said lesser rate shall
be charged. For the purposes of this Sublease, the term "Prime Rate" shall mean
the rate of interest announced from time to time by Bank One as its prime or
corporate base rate.
(d) Subtenant shall pay Landlord on the due dates for services
requested by Subtenant which are billed by Landlord directly to Subtenant rather
than Sublandlord.
5. CONDITION OF SUBLEASE PREMISES AND CONSTRUCTION OF IMPROVEMENTS.
Subtenant hereby acknowledges and agrees that it is to demise the Sublease
Premises in an "as-is" condition and Subtenant's taking possession of the
Sublease Premises shall be conclusive evidence as against Subtenant that the
Sublease Premises were in good order and satisfac-tory condition when Subtenant
took possession. No promise of Sublandlord to alter, remodel or improve the
Sublease Premises, and no representation respecting the condi-tion of the
Sublease Premises have been made by Sublandlord to Subtenant except to the
extent expressly set forth in this Sublease. Upon the expiration of the term
hereof, or upon any earlier termination of the term hereof or of Subtenant's
right to possession, Subtenant shall surrender the Sublease Premises in at least
as good condition as at the commencement of the term of this Sublease, ordinary
wear and tear excepted.
6. THE PRIME LEASE.
(a) This Sublease and all rights of Subtenant hereunder and with
respect to the Sublease Premises are subject to the terms, conditions and
provisions of the Prime Lease. Subtenant hereby assumes and agrees to perform
faithfully and be bound by, with respect to the Sublease Premises, all of
Sublandlord's obligations, cove-nants, agreements and liabilities under the
Prime Lease and all terms, condi-tions, provisions and re-strictions contained
in the Prime Lease except:
(i) for the payment of "Rental" (as such term is defined in
paragraph 2 of the Prime Lease);
Xxxxxxx Road Sublease.doc - 3 -
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(ii) that Subtenant shall not have any obliga-tions to con-struct
or install tenant improvements except as may be provided
herein; and
(iii) that the following provisions of the Prime Lease do not
apply to this Sublease: any provisions in the Prime Lease
allowing or purporting to allow Subland-lord any rent
xxxxxx-xxxxx or abatements or construc-tion allowances, any
provisions allowing Sublandlord to extend or renew the term
of the Prime Lease, any provisions of the Prime Lease
granting any option to purchase or lease the Building or any
other space in the Project.
(b) Without limitation of the foregoing:
(i) Subtenant shall not make any changes, alterations or
additions in or to the Sublease Premises except as otherwise
expressly provided herein on Exhibit B. In connection
therewith, Sublandlord and Subtenant acknowledge and agree
that Subtenant desires to make certain alterations,
additions and/or improvements to the Premises following its
occupancy thereof. In connection with such work (hereinafter
referred to as the "Subtenant Work"), such work shall be
performed at the sole cost and expense of Subtenant and
shall strictly conform to all the terms and provisions of
the Prime Lease. Subtenant shall obtain the approval of both
the Landlord and Sublandlord with respect to any and all
aspects of the Subtenant Work prior to commencing same.
Subtenant shall not be required to remove or otherwise
reverse any changes, alterations or additions at the end of
the Sublease, provided Landlord and Sublandlord have
approved the changes, alterations or additions as stated
above, and all changes, alterations or additions will become
the property of Landlord or Sublandlord at the end of the
Sublease unless further arrangements are made between
Subtenant and Landlord to continue Subtenant's occupancy of
the Premises.
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(ii) If Subtenant desires to take any other action and the Prime
Lease would require that Sublandlord obtain the consent of
Landlord before undertaking any action of the same kind,
Subtenant shall not undertake the same without the prior
written consent of Sublandlord. Sublandlord may condition
its consent on the consent of Landlord being obtained and
may require Subtenant to contact Landlord directly for such
consent;
(iii) All rights given to Landlord and its agents and
repre-sentatives by the Prime Lease to enter the Sublease
Premises shall inure to the benefit of Sublandlord and their
respective agents and representa-tives with respect to the
Sublease Premises;
(iv) Sublandlord shall also have all other rights, and all
privileges, options, reservations and remedies, xxxxx-xx or
allowed to, or held by, Landlord under the Prime Lease;
(v) Subtenant shall maintain insurance of the kinds and in the
amounts required to be maintained by Sublandlord under the
Prime Lease. All policies of liability insur-ance shall name
as additional insureds the Landlord and Sublandlord and
their respective officers, direc-tors or partners, as the
case may be, and the respec-tive agents and employ-ees of
each of them; and
(vi) Subtenant shall not do anything or suffer or permit anything
to be done which could result in a default under the Prime
Lease or permit the Prime Lease to be canceled or
terminated.
(c) Notwithstanding anything contained herein or in the Prime Lease
which may appear to be to the contrary, Sublandlord and Subtenant hereby agree
as follows:
(i) Subtenant shall not assign, mortgage, pledge, hypoth-ecate
or otherwise transfer or permit the transfer of this
Sublease or any interest of Subtenant in this Sub-lease, by
operation of law or otherwise, or permit the use of the
Sublease Premises or any part thereof by any per-sons other
than Subtenant and Subtenant's employees, or sublet the
Sublease Premises or any part thereof;
(ii) neither rental nor other payments hereunder shall xxxxx by
reason of any damage to or destruction of the Sublease
Premises, the Premises, or the Building or any part thereof,
unless, and then only to the extent that, rental and such
other payments actually xxxxx under the Prime Lease with
respect to the Sublease Premises on account of such event;
Xxxxxxx Road Sublease.doc - 5 -
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(iii) Subtenant shall not have any right to any portion of the
proceeds of any award for a condemna-tion or other taking,
or a conveyance in lieu thereof, of all or any portion of
the Building, the Premises or the Sublease Premises;
(iv) Subtenant shall not have any right to exercise or have
Sublandlord exercise any option under the Prime Lease,
including, without limitation, any option to extend the term
of the Prime Lease or lease addi-tional space; and
(v) In the event of any conflict between the terms, con-ditions
and provisions of the Prime Lease and of this Sublease, the
terms, conditions and provisions of this Sublease shall, in
all instances, govern and control.
(d) It is expressly understood and agreed that Sublandlord does not
assume and shall not have any of the obligations or liabilities of Landlord
under the Prime Lease and that Sublandlord is not making the representations or
war-ranties, if any, made by Landlord in the Prime Lease. With respect to work,
ser-vices, repairs and restoration or the performance of other obligations
required of Landlord under the Prime Lease, Sublandlord's sole obligation with
respect thereto shall be to request the same, upon written request from
Subtenant, and to use reasonable efforts, at Subtenant's sole cost and expense,
to obtain the same from Landlord. Sublandlord shall not be liable in damages,
nor shall rent xxxxx hereunder, for or on account of any failure by Landlord to
perform the obligations and duties imposed on it under the Prime Lease.
Sublandlord and Subtenant acknowledge and agree that any repair, maintenance
and/or replacement obligations with respect to the Sublease Premises which are
the responsibility of the Sublandlord, as tenant under the Prime Lease, shall be
performed by Subtenant at Subtenant's sole cost and expense. In the event that
a condition exists in the Sublease Premises that Landlord is obligated to repair
under the terms of the Prime Lease, Subtenant shall so advise Sublandlord, and
Sublandlord, in turn, shall promptly advise Landlord thereof. At Subtenant's
request, in the event that Landlord fails to fulfill any repair or maintenance
obligation under the terms of the Prime Lease with respect to the Sublease
Premises, Sublandlord shall use its reasonable efforts to have Landlord fulfill
such repair and maintenance obligations, all of which reasonable efforts shall
at be Subtenant's sole cost and expense.
Xxxxxxx Road Sublease.doc - 6 -
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(e) Nothing contained in this Sublease shall be construed to create
privity of estate or contract between Subtenant and Landlord, except the
agree-ments of Subtenant in Sections 10 and 11 hereof in favor of Landlord, and
then only to the extent of the same.
7. DEFAULT BY SUBTENANT.
(a) Upon the happening of any of the following:
(i) Subtenant fails to pay any Base Rent within five (5) days
after the date it is due;
(ii) Subtenant fails to pay any other amount due from Subtenant
hereunder and such failure continues for three (3) days
after notice thereof from Sublandlord to Subten-ant;
(iii) Subtenant fails to perform or observe any other cove-nant
or agreement set forth in this Sublease and such failure
continues for seven (7) days after notice thereof from
Sublandlord to Subtenant; or
(iv) any other event occurs which involves Subtenant or the
Sublease Premises and which would constitute a default under
the Prime Lease if it involved Sublandlord or the Premises;
Subtenant shall be deemed to be in default hereunder, and Sublandlord may
exer-cise, without limitation of any other rights and remedies available to it
hereunder or at law or in equity, any and all rights and remedies of Landlord
set forth in the Prime Lease in the event of a default by Sublandlord
thereunder.
(b) In the event Subtenant fails or refuses to make any payment or
perform any covenant or agreement to be performed hereunder by Subtenant,
Sublandlord may make such payment or undertake to perform such covenant or
agreement (but shall not have any obligation to Subtenant to do so). In such
event, amounts so paid and amounts expended in undertaking such perfor-xxxxx,
together with all costs, expenses and attorneys' fees incurred by Sublandlord in
connection therewith, shall be additional rent hereunder.
8. NONWAIVER. Failure of Sublandlord to declare any default or delay
in tak-ing any action in connection therewith shall not waive such default. No
receipt of moneys by Sublandlord from Subtenant after the termination in any way
of the term or of Subtenant's right of possession hereunder or after the giving
of any notice shall rein-state, continue or extend the term or affect any notice
given to Subtenant or any suit commenced or judgment entered prior to receipt of
such moneys.
Xxxxxxx Road Sublease.doc - 7 -
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9. CUMULATIVE RIGHTS AND REMEDIES. All rights and remedies of
Sublandlord under this Sublease shall be cumulative and none shall exclude any
other rights or reme-dies allowed by law.
10. WAIVER OF CLAIMS AND INDEMNITY.
(a) Subtenant hereby releases and waives any and all claims against
Landlord and Sublandlord and each of their respective officers, directors,
part-ners, agents and employees for injury or damage to person, property or
business sustained in or about the Building, the Premises, or the Sublease
Premises by Subtenant other than by reason of gross negligence or willful
misconduct and except in any case which would render this release and waiver
void under law.
(b) Subtenant agrees to indemnify, defend and hold harm-less Landlord
and Sublandlord and each of their respective officers, directors, partners,
agents and employees, from and against any and all claims, demands, costs and
expenses of every kind and nature, including attorneys' fees and litigation
expenses, arising from Subten-ant's use and occupancy of the Sublease Premises,
Subtenant's construction of any leasehold improvements in the Sublease Premises,
any release, discharge, storage, production, use or disposal of hazardous
substances in the Sublease Premises, the installation, maintenance, repair
and/or removal of any and all signage installed by Subtenant, or from any breach
or default on the part of Subtenant in the performance of any agreement or
covenant of Subtenant to be performed or performed under this Sublease or
pursuant to the terms of this Sub-lease, or from any act or neglect of Subtenant
or its agents, officers, employees, guests, servants, invitees or customers in
or about the Sublease Premises. In case any such proceeding is brought against
any of said indemnified parties, Subtenant covenants, if re-quested by
Sublandlord, to defend such proceeding at its sole cost and expense by legal
counsel reasonably satisfactory to Sublandlord.
11. WAIVER OF SUBROGATION. Anything in this Sublease to the contrary
notwith-standing, Sublandlord and Subtenant each hereby waive any and all rights
of recovery, claims, actions or causes of action against the other and the
officers, directors, part-ners, agents and employees of each of them, and
Subtenant hereby waives any and all rights of recovery, claims, actions or
causes of action against Landlord and its agents and employees for any loss or
damage that may occur to the Sublease Premises or the Premises, or any
improvements thereto, or any personal property of any person therein or in the
Building, by reason of fire, the elements or any other cause insured against
under valid and collectible fire and extended coverage insurance poli-cies,
regardless of cause or origin, including negligence, except in any case which
would render this waiver void under law, to the extent that such loss or damage
is actually recovered under said insurance policies.
12. BROKERAGE COMMISSIONS. Each party hereby represents and warrants
to the other that other than CB Xxxxxxx Xxxxx, Inc. (agent for Sublandlord) and
CMN, Inc., d/b/a Colliers International (as exclusive agent for Subtenant), it
has had no dealings with any real estate broker or agent in connection with this
Sublease, and that it knows of no real estate broker or agent who is or might be
entitled to a commission in connection with this Sublease. Sublandlord shall pay
a commission to CB Xxxxxxx Xxxxx, Inc. and to CMN, Inc. pursuant to separate
agreement with each party. Each party agrees to protect, defend, indemnify and
hold the other harmless from and against any and all claims inconsistent with
the foregoing representations and warranties for any brokerage, finder's or
similar fee or commission in connection with this Sublease, if such claims are
based on or relate to any act of the indemnifying party which is contrary to the
foregoing representations and warranties.
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13. SUCCESSORS AND ASSIGNS. This Sublease shall be binding upon and
inure to the benefit of the successors and assigns of Sublandlord and shall be
binding upon and inure to the benefit of the successors of Subtenant and, to the
extent any such assign-ment may be approved, Subtenant's assigns. The
provisions of Subsection 6(e) and Sections 10 and 11 hereof shall inure to the
benefit of the successors and assigns of Landlord.
14. ENTIRE AGREEMENT. This Sublease contains all the terms, covenants,
con-ditions and agreements between Sublandlord and Subtenant relating in any
manner to the rental, use and occupancy of the Sublease Premises. No prior
agreement or understanding pertaining to the same shall be valid or of any force
or effect. The terms, covenants and conditions of this Sublease cannot be
altered, changed, modified or added to except by a written instrument signed by
Sublandlord and Subtenant.
15. NOTICES.
(a) In the event any notice from the Landlord or otherwise relating to
the Prime Lease is delivered to the Sublease Premises or is otherwise received
by Subtenant, Subtenant shall, as soon thereafter as possible, but in any event
within twenty-four (24) hours, deliver such notice to Sublandlord if such notice
is written or advise Sublandlord thereof by telephone if such notice is oral.
(b) Notices and demands required or permitted to be given by either
party to the other with respect hereto or to the Sublease Premises shall be in
writing and shall not be effective for any purpose unless the same shall be
served either by personal delivery with a receipt requested, by overnight air
courier service or by United States certified or registered mail, return receipt
requested, postage pre-paid; provided, however, that all notices of default
shall be served either by per-xxxxx delivery with a receipt requested or by
overnight air courier service, addressed as follows:
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if to Sublandlord: GATEWAY, INC.
Real Estate Administration
000 Xxxxxxx Xxxxx X00
Xxxxx Xxxxx Xxxx, Xxxxx Xxxxxx 00000
and
GATEWAY, INC.
0000 Xxxxxx Xxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: General Counsel
if to Subtenant: SPACEDEV, INC.
00000 Xxxxx Xxxxx
Xxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx, President
Notices and demands shall be deemed to have been given two (2) days after
mailing, if mailed, or, if made by personal delivery or by overnight air courier
service, then upon such delivery. Either party may change its address for
receipt of notices by giving notice to the other party.
16. AUTHORITY OF SUBTENANT, ETC. Subtenant represents and warrants to
Sublandlord that this Sublease has been duly author-ized, executed and delivered
by and on behalf of Subtenant and constitutes the valid, enforceable and binding
agreement of Subtenant and of each party constituting Subtenant, each of whom
shall be jointly and severally liable hereunder in accordance with the terms
hereof.
17. LIMITATION ON LIABILITY. Sublandlord shall not be liable for
personal injury or property damage to Subtenant, its officers, agents,
employees, invitees, guests, licensees or any other person in the Sublease
Premises, regardless of how such injury or damage may be caused. Any property
of Subtenant kept or stored in the Sublease Premises shall be kept or stored at
the sole risk of Subtenant. Subtenant shall hold Sublandlord harmless from any
claims arising out of any personal injury or property damage occurring in the
Sublease Premises, including subrogation claims by Subtenant's insurance
carrier(s).
18. CONSENTS; APPROVALS; AND DEFINITIONS. In any instance when
Sublandlord's consent or approval is required under this Sublease, Sublandlord's
refusal to consent to or approve any matter or thing shall be deemed reasonable
if, among other matters, such consent or approval is required under the
provisions of the Prime Lease incorporated herein by reference but has not been
obtained from Landlord. Except as otherwise provided herein, Sublandlord shall
not unreasonably withhold or delay its consent to or approval of a matter if
such consent or approval is required under the provisions of the Prime Lease and
Landlord has consented to or approved of such matter. If Subtenant shall seek
the approval by or consent of Sublandlord and Sublandlord shall fail or refuse
to give such consent or approval, Subtenant shall not be entitled to any damages
for any withholding or delay of such approval or consent by Sublandlord, it
being agreed that Subtenant's sole remedy in connection with an alleged wrongful
refusal or failure to approve or consent shall be an action for injunction or
specific performance shall be available only in those cases where Sublandlord
shall have expressly agreed in this Sublease not to unreasonably withhold or
delay its consent. Any and all defined terms which are used herein shall have
the same meaning as ascribed thereto in the Prime Lease, unless otherwise
defined in this Sublease.
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19. EXAMINATION. Submission of this instrument for examination or signature
by Subtenant does not constitute a reservation of or option for the Sublease
Premises or in any manner bind Sublandlord, and no lease, sublease or obligation
on Sublandlord shall arise until this instrument is signed and delivered by
Sublandlord and Subtenant; provided, however, that the execution and delivery by
Subtenant of this Sublease to Sublandlord shall constitute an irrevocable offer
by Subtenant to sublease the Sublease Premises on the terms and conditions
herein contained, which offer may not be revoked for thirty (30) days after such
deliv-ery.
20. SECURITY DEPOSIT. Simultaneously with the execution of this
Sublease, Subtenant shall deposit with Sublandlord as security for the
performance by Subtenant of the terms of this Sublease the sum of SIX THOUSAND
SIX HUNDRED FORTY ONE and 40/100ths DOLLARS ($6,641.40) (the "Security
Deposit"). The Security Deposit shall be held by Sublandlord free of trust and
may be commingled with other (including, but not limited to, Sublandlord's own)
funds, and Subtenant shall not be entitled to receive interest earned thereon,
if any. Sublandlord may use or apply on Subtenant's behalf or retain (without
liability for interest) during the Sublease Term the whole or any part of the
Security Deposit to the extent required for the payment of any Rent or other
sums as to which Subtenant may be liable hereunder or for any sums to which
Sublandlord may be entitled by reason of Subtenant's default in respect of any
of the terms of this Sublease, including, but not limited to, any deficiency or
damage incurred in repairing the Premises. After each application from (or
expiration of) Subtenant's Security Deposit, Subtenant shall upon demand
replenish said Security Deposit to the amount hereinabove set forth. Under no
circumstances shall the amount of the Security Deposit limit the amount to which
Sublandlord may be entitled under this Sublease by way of damages or otherwise,
nor is such amount intended to be or represent a liquidated damage amount, but
is merely an amount which may be applied on account towards any amounts due
Sublandlord and unpaid under this Sublease. Provided Subtenant shall comply
with all of the terms of this Sublease, the Security Deposit shall be promptly
returned to Subtenant upon termination of this Sublease and after proper and
timely surrender of possession of the Premises to Sublandlord.
21. PARKING. During the term of this Sublease, at no additional cost
or expense to such parties (other than the costs expressly set forth in this
Sublease or imposed under the Prime Lease), Subtenant and its employees shall be
entitled to use all of the parking rights granted to Sublandlord as tenant under
the Prime Lease. Subtenant acknowledges and agrees that its right to use such
parking area shall be upon the terms and conditions set forth in the Prime
Lease, including, without limitation, any and all rules and regulations
promulgated by Landlord with respect thereto.
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22. SIGNAGE. Subject to all the terms and conditions of this Sublease and
the Prime Lease, Subtenant shall be permitted to utilize all of the exterior
building signage permitted Sublandlord with respect to the Building, as tenant
under the Prime Lease, subject to obtaining any and all governmental and other
approvals and obtaining Landlord's and Sublandlord's consent hereto. Subtenant's
right to so install such signage shall be at Subtenant's sole cost and expense
and shall require the prior written consent of Sublandlord and Landlord as to
the design, size, location and manner of installation of same. Upon the
expiration of the term of this Sublease or the earlier termination hereof,
Subtenant shall remove any such signage and repair any damage caused by same.
Such agreement by Subtenant shall survive the expiration of the term of this
Sublease or the earlier expiration hereof.
IN WITNESS WHEREOF, Sublandlord and Subtenant have executed this Sublease
as of the date aforesaid.
SUBLANDLORD:
GATEWAY, INC.
a Delaware corporation
By: /s/ X.X Xxxxxxx
----------------------
Name: X. X. Xxxxxxx
Title: Sr. Director
SUBTENANT:
SPACEDEV, INC.
a Colorado corporation
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President &
Chief Financial Officer
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STATE OF CALIFORNIA )
) SS:
COUNTY OF ORANGE )
On this 4 day of April, 2005, before me, the undersigned Notary Public in
and for said County and State, personally appeared Xxxxxxxx Xxxxxxx as Sr.
Director of Gateway. Inc., a Deleware Corporation who executed the foregoing
instrument on behalf of said corporation for the purposes therein expressed. He
is personally known to me and did not take an oath. In witness whereof, I have
hereunto set my hand and official seal the day and year last above written.
Notary Public /s/ Xxxx Xxxxxx
Printed/Typed Name: Xxxx Xxxxxx
Commission No.: 1364336
My commission expires: July 11, 0000
XXXXX XX XXXXXXXXXX )
) SS:
COUNTY OF SAN DIEGO )
On this 1st day of April, 2005, before me, the undersigned Notary Public in
and for said County and State, personally appeared Xxxxxxx X. Xxxxxxx as
President of SpaceDev, Inc., a Colorado corporation, who executed the foregoing
instrument on behalf of said corporation for the purposes therein expressed. He
has produced his California Drivers License as identification and did take an
oath. In witness whereof, I have hereunto set my hand and official seal the day
and year last above written.
Notary Public /s/ Xxxxx Xxxxx Xxxxxxx
Printed/Typed Name: Xxxxx Xxxxx Xxxxxxx
Commission No.: 1325958
My commission expires: Oct. 19, 0000
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EXHIBIT A
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PRIME LEASE
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Xxxxx 0 00000.XXXXXXX XXXX SUBLEASE.DOC
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EXHIBIT B
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CHANGES, ALTERATIONS OR ADDITIONS
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Subtenant will remove the chain-link fence currently located in the
warehouse,add power to the facility at their own cost and distribute it along
two walls and have one or two drop cords in the center of the warehouse area.
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Xxxxx 0 00000.XXXXXXX XXXX XXXXXXXX.XXX
