EXHIBIT 10.5
Page 14
SUBLEASE AGREEMENT
DATED: July 23, 2002
ARTICLE 1: FUNDAMENTAL SUBLEASE PROVISIONS.
1.1 PARTIES: "SUBLESSOR" Adaptec, Inc., a Delaware corporation
"SUBLESSEE" HomeDirector, Inc., a Delaware corporation
"MASTER LESSOR" Xxxx Center Livermore, LLC, a California
limited liability company
1.2 MASTER LEASE: (Article 3): Sublessor, as tenant, is leasing from Master
Lessor, as landlord, approximately 36,400 rentable square feet located at
0000 Xxxxxxx Xxxxxx Xxxx in the City of Xxxxxxxxx, Xxxxxxxxxx 00000 (the
"PREMISES") on the terms and subject to the conditions of that certain
Triple Net Lease dated as of October 26, 2000 (the "MASTER LEASE"). A copy
of the Master Lease is attached hereto as EXHIBIT A. The Premises are
located within a four building project within the Complex ("PHASE ONE")
containing a total of approximately 189,200 rentable square feet, together
with associated parking areas, driveways and other common areas, which
complex is known as the Xxxx Center (the "COMPLEX").
1.3 SUBLEASE PREMISES: (Article 2): The premises subleased hereby (the
"SUBLEASE PREMISES") constitutes a portion of the Premises, contains
approximately 11,470 rentable square feet, is commonly known as 0000
Xxxxxxx Xxxxxx Xxxx, and is shown as "Suite 2" on the floor plan attached
hereto as EXHIBIT B.
1.4 SUBLEASE TERM: (Article 4): The term of this Sublease (the "SUBLEASE TERM")
is sixty-seven (67) calendar months, beginning on the Commencement Date and
ending on the Termination Date described below, unless commenced later or
terminated earlier pursuant to the terms of this Sublease.
1.5 SCHEDULED COMMENCEMENT DATE: (Article 4.1): August 1, 2002
1.6 TERMINATION DATE: (Article 4.1): February 28, 2008
1.7 MINIMUM MONTHLY RENT: (Article 5.2):
August 1, 2002 - January 31, 200 $0.00/NNN/rsf $0.00/month
February 1, 2003 - January 31, 2004 $1.30/NNN/rsf $14,911.00/month
February 1, 2004 - January 31, 2005 $1.34/NNN/rsf $15,370.00/month
February 1, 2005 - January 31, 2006 $1.38/NNN/rsf $15,829.00/month
February 1, 2006 - January 31, 2007 $1.42/NNN/rsf $16,287.00/month
February 1, 2007 - February 28, 2008 $1.46/NNN/rsf $16,746.00/month
RENT COMMENCEMENT DATE: (Article 4.2): February 1, 2003
1.8 PREPAID RENT: (Article 5.4): $17,893.00 (which includes Minimum Monthly
Rent, and estimated Additional Rent)
1.9 ADDITIONAL RENT COMMENCEMENT DATE: (Article 5.3): August 1, 2002
1.10 SECURITY DEPOSIT: (Article 6): $39,456.00 (which includes the last two
month's of Minimum Monthly Rent, and estimated Additional Rent)
1.11 PERMITTED USE: (Article 7): General office, administrative, sales and
customer service, in strict compliance with the Master Lease.
1.12 SUBLESSEE'S PRO RATA SHARE: (Article 5.3): 31.51% of the Premises.
1.13 ADDRESSES FOR NOTICES: (Article 11):
Master Lessor: Xxxx Center Livermore, LLC
0000 Xxx Xxxxxxx Xxxxx, Xxxxx X
Xxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx
(000) 000-0000 phone
(000) 000-0000 fax
Sublessor: Adaptec, Inc.
000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
Attn: Xxx Xxxxxx
(000) 000-0000 phone
(000) 000-0000 fax
Sublessee: HomeDirector, Inc.
PRIOR TO THE COMMENCEMENT DATE:
0000 Xxxxx Xxxxxxx Xxxx.
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxx, President
(000) 000-0000 phone
(000) 000-0000 fax
FOLLOWING THE COMMENCEMENT DATE:
0000 Xxxxxxx Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxx, President
(000) 000-0000 phone
(000) 000-0000 fax
1.14 MAXIMUM VEHICLE PARKING: (Article 19): 43 unreserved spaces (3.8/1000 RSF).
1.15 SUBLESSOR'S BROKER: (Article 21.4): Xxx Xxxxxxxx and Xxxx Xxxxxxx, Xxxxxxx
& Xxxxx
1.16 SUBLESSEE'S BROKER: (Article 21.4): Xxxxxxx X. Xxxxx, Xxxx Xxxxxxxx and Xxx
Xxxxxx, Colliers International
1.17 EXHIBITS AND ADDENDA: The following exhibits are annexed to this Sublease:
Exhibit A - Master Lease
Exhibit B - Floor Plan of the Premises
Exhibit C - Consent to Sublease
Exhibit D - Sign Criteria
Exhibit E - Furniture Layout
Each reference in this Sublease Agreement ("SUBLEASE") to any provision in
Article 1 shall be construed to incorporate all of the terms of each such
provision. In the event of any conflict between this Article 1 and the balance
of the Sublease, the balance of the Sublease shall control. Capitalized terms
that are not defined in this Sublease shall have the meanings given in the
Master Lease.
ARTICLE 2: SUBLEASE PREMISES.
2.1 SUBLEASE. Sublessor hereby subleases the Sublease Premises to Sublessee, and
Sublessee hereby subleases the Sublease Premises from Sublessor, upon the terms
and conditions hereinafter set forth. Sublessee acknowledges that the rentable
area of the Sublease Premises as specified in Article 1 is an estimate and that
Sublessor does not warrant the exact rentable area of the Sublease Premises. By
taking possession of the Sublease Premises, Sublessee accepts the rentable area
of the Sublease Premises as that specified in Article 1.
2.2 CONDITION OF THE SUBLEASE PREMISES: "AS IS." Sublessee hereby agrees to
accept possession of the Sublease Premises in its "As Is" condition. Sublessee
acknowledges that except as expressly stated in this Sublease: (i) Sublessor
makes no warranties or representations regarding the physical condition of the
Sublease Premises; (ii) Sublessee has had an opportunity to inspect the Sublease
Premises; and the environmental condition of the Sublease Premises and related
common areas; and to hire experts to conduct such inspections on its behalf; and
(iii) Sublessee is leasing the Sublease Premises based on its own inspection of
the Sublease Premises and those of its agents, and is not relying on any
statements, representations or warranties of Sublessor or Sublessor's agents
regarding the physical condition of the Sublease Premises.
2.3 IMPROVEMENTS TO THE SUBLEASE PREMISES.
2.3.1 CONSTRUCTION OF SUBLESSEE IMPROVEMENTS. Sublessee may construct
certain interior improvements ("SUBLESSEE IMPROVEMENTS") within the Sublease
Premises, subject to all the terms and conditions contained in this Sublease and
Section 10 of the Master Lease. The Sublessee Improvements may include, but not
be limited to, reconfiguring the Furniture (as defined in Article 21) to
Sublessee's needs, construction of demising of walls for a training room,
demising of walls for an area for inventory and a demonstration room, demising
of walls for a conference room, and all related electrical work, lighting
fixtures and mechanical work. Sublessor shall have no responsibility to
Sublessee or to any other parties for the construction or installation of the
Sublessee Improvements. To the extent that Master Lessor consents to the
Sublessee Improvements, Sublessor shall not withhold its consent to such
improvements.
2.3.2 ALLOWANCE FOR IMPROVEMENTS TO THE SUBLEASE PREMISES.
2.3.2.1 AMOUNT. Sublessor shall provide an allowance for the
Improvement Costs (defined below) incurred by Sublessee in completing the
Sublessee Improvements in an amount of up to $4.00 per rentable square foot,
which is equivalent to $44,880 (the "IMPROVEMENT ALLOWANCE"). To the extent that
the costs for the Sublessee Improvements exceed the Improvement Allowance,
Sublessee shall be responsible for such excess costs.
2.3.2.2 PAYMENT TERMS. Concurrently with its request for
payment of the Improvement Allowance ("PAYMENT REQUEST"), Sublessee shall submit
to Sublessor (i) original lien waivers from all contractors and subcontractors,
and (ii) such other documentation as Sublessor may reasonably require to
evidence completion of the work pertaining to such payment (collectively, the
"REQUEST PACKAGE"). Within thirty (30) days following Sublessor's receipt of the
Request Package, Sublessor shall deliver to Sublessee: (i) a written notice of
any amounts included in the Payment Request that are disputed by Sublessor as
outside of the scope of Improvement Costs (as defined in Section 2.3.2.3)
("DISPUTED AMOUNTS") (if any), and (ii) payment of the balance of the Payment
Request (the "UNDISPUTED AMOUNTS"). If Sublessor delivers an notice of Disputed
Amounts, then the parties shall confer and negotiate in good faith to reach
agreement as to whether the Disputed Amounts are within the scope of Improvement
Costs. Sublessee shall have a right to offset the Disputed Amounts against
future Rent payable under this Sublease,. If a Disputed Amount is not resolved
by the parties in a reasonably acceptable manner within 30 days, either party
may refer the matter to an expedited arbitration procedure, for resolution
within 90 days. The unsuccessful party would be responsible for the costs of the
arbitration process. If it is determined that the amount contested is not to be
covered by the Improvement Allowance, Sublessor shall not be required to make
such payment to Sublessee and Sublessee shall promptly pay the amount that it
has offset against rent, if any. If Sublessor fails to deliver payment of any
Undisputed Amounts within such thirty (30) day period, then Sublessee shall have
the right to offset the total of such Undisputed Amounts against future Rent
payable under this Sublease.
2.3.2.3 DEFINITION OF IMPROVEMENT COSTS. As used herein, the
term "IMPROVEMENT COSTS" shall mean and include all hard and soft costs related
to the design and construction of the Sublessee Improvements, as approved by
Sublessor and Master Lessor (as required by Section 10 of the Master Lease),
including without limitation (i) engineering and architectural fees; (ii) the
cost of processing applications for all required governmental approvals and
permits, and all fees, taxes or other charges levied by governmental authorities
in connection therewith; (iii) all labor and supervision costs; (iv) the cost of
acquiring materials, supplies and equipment rental; (v) the contract price for
all construction work undertaken by general contractors and sub-contractors,
including fees, general conditions and overhead of the contractors, as
applicable; (vi) the cost of procuring and installing Sublessee's signage; and
(vii) any overhead fee or supervisory fee charged under the Master Lease.
2.3.2.4 EXCLUSIONS FROM IMPROVEMENT COSTS. The Improvement
Costs shall not include any costs incurred by Sublessee in completing any work
or installations that are not approved by Sublessor and Master Lessor or that
are needed for Sublessee's special use of the Sublease Premises or the operation
of Sublessee's business in the Sublease Premises, including without limitation
(i) the cost of procuring and installing Sublessee's trade fixtures, equipment,
cabling, workstations, cubicles, furniture and other personal property necessary
or incidental to the operation of Sublessee's business; and (ii) taxes, fees,
charges and levies by governmental authorities for the foregoing. In addition,
the conceptual space planning provided by Sublessor shall be at Sublessor's sole
cost and expense (with up to a maximum of two revisions), and is not included as
part of the Improvement Allowance.
2.3.3 SUBLESSOR'S APPROVAL. Sublessor's approval of Sublessee's plans
for the Sublessee Improvements shall in no way be deemed assurances that the
Sublessee Improvements comply with applicable laws, ordinances or codes, or any
implied warranty of the adequacy or sufficiency of the design or quality of any
items shown therein. Sublessor shall cooperate with Sublessee by signing any
documents required to enable Sublessee to obtain whatever authorizations are
required to proceed with the Sublessee Improvements when requested by Sublessee.
2.4 COMPLIANCE WITH LAWS.
2.4.1 SUBLESSOR'S OBLIGATIONS. Sublessor represents and warrants that
to Sublessor's Knowledge (as defined in Article 22.6 below), the Sublease
Premises as they exist on the date of this Sublease do not violate any
ordinance, rule, code, or regulation of any governmental agency, and Sublessor
has not received any notice of such violation. Sublessor agrees to cure such
violations existing as of the date of this Sublease (to the extent such cure is
the responsibility of Sublessor under the terms of the Master Lease) or to
request Master Lessor to cure such violations (if applicable) which either
prevent Sublessee from obtaining permits for the Sublessee Improvements or
interfere with Sublessee's ability to use and occupy the Sublease Premises. For
each day that there is a delay in Sublessee's ability to obtain its permits for
the Sublessee Improvements or to use the Sublease Premises because of an
existing violation, the Rent Commencement Date shall be delayed; provided,
however, if Sublessee is occupying and conducting its business in the Sublease
Premises, then the Rent Commencement Date shall not be subject to any delay.
2.4.2 SUBLESSEE'S OBLIGATIONS. Sublessee shall, at Sublessee's sole
cost and expense, be responsible for bringing the Sublease Premises into
compliance with any statutes, rules, regulations, ordinances, requirements
(whether presently existing or hereinafter enacted), insurance regulations or
otherwise, including but not limited to compliance with Americans with
Disabilities Act and Title 24 requirements (collectively, "APPLICABLE LAWS") to
the extent that compliance with such Applicable Laws is "triggered" by (i) the
demising of the Sublease Premises as contemplated by this Sublease, or (ii)
Sublessee's specific and unique use or occupancy of the Sublease Premises; or
(iii) the Sublessee Improvements or other work to the Sublease Premises, or (iv)
Sublessee's application for a building permit or any other governmental
approval. Notwithstanding the foregoing, if Sublessee's application of a
building permit or other governmental approval is denied or conditioned on the
correction of violations of Applicable Laws pertaining to the condition of the
Premises prior to such submission by Sublessee, then the cost of correcting such
violations of Applicable Laws shall not be the responsibility of Sublessee.
2.5 PERSONAL PROPERTY. Except as specifically provided in Article 21, Sublessee
acknowledges that the Sublease Premises shall not include any fixtures,
equipment, cabling, security systems, furniture, or other personal property
belonging to Sublessor.
2.6 ALTERATIONS TO PREMISES. Sublessee shall not make any alterations,
additions, or improvements to the Sublease Premises without the prior written
consent of Sublessor, which consent shall not be unreasonably withheld, delayed
or conditioned.
ARTICLE 3: TERMS OF THE MASTER LEASE.
3.1 SUBLEASE SUBORDINATE. This Sublease is subordinate and subject to all of the
terms and conditions of the Master Lease. If the Master Lease terminates for any
reason whatsoever, this Sublease shall terminate concurrently, and the parties
hereto shall be relieved of any liability thereafter accruing under this
Sublease, except for the liabilities of the parties which by the terms of this
Sublease survive the expiration or earlier termination of this Sublease.
3.2 SUBLESSEE'S OBLIGATIONS. For the benefit of Master Lessor and Sublessor,
Sublessee hereby expressly agrees from and after the Commencement Date to
assume, to be bound by, and to perform all the terms, conditions and covenants
of the Master Lease to be fulfilled, performed or observed by Sublessor with
respect to the Sublease Premises and/or Sublessee's activities in, on or around
the Sublease Premises and the Complex. Sublessee shall not commit or suffer at
any time any act or omission that would violate any provision of the Master
Lease. PLEASE ADD A DEFAULT PROVISION WITH NOTICE AND OPPORTUNITY TO CURE, OR
INCORPORATE BY REFERENCE THE ONE THAT IS INCLUDED IN THE MASTER LEASE IN SECTION
19.
3.3 SUBLESSOR'S OBLIGATIONS. So long as Sublessee is not in default under this
Sublease (beyond any applicable notice and cure period), Sublessor shall not
commit any act or omission during the Sublease Term that would lead to the
termination of the Master Lease by Master Lessor. However, if Sublessee is in
default under this Sublease (beyond any applicable notice and cure period or if
no cure period is specified in either this Sublease or the Master Lease, and
Sublessee does not cure such default within five (5) days after receiving
written notice of such default), then Sublessor shall have no obligation to
Sublessee to maintain the Master Lease for Sublessee's benefit.
3.4 MASTER LESSOR'S OBLIGATIONS. Sublessor shall not be responsible to Sublessee
for furnishing any service, maintenance or repairs to the Sublease Premises that
are the obligation of the Master Lessor under the Master Lease, it being
understood that Sublessee shall look solely to Master Lessor for performance of
any such service, maintenance or repairs. However, if Master Lessor shall fail
to perform its obligations under the Master Lease, Sublessor, upon receipt of
written notice from Sublessee, shall use commercially reasonable efforts to
attempt to enforce the obligations of Master Lessor under the Master Lease;
provided, however, that Sublessor shall not be required to incur any material
costs or expenses in connection therewith unless Sublessee agrees to reimburse
Sublessor for any such costs and expenses as Additional Rent hereunder.
3.5 SUBLESSOR'S RIGHTS AND REMEDIES. In addition to all the rights and remedies
provided to Sublessor at law, in equity, or under the terms of this Sublease,
(a) in the event of any breach by Sublessee of any of its obligations under this
Sublease (beyond any applicable notice and cure period), Sublessor shall have
all of the rights and remedies with respect to such breach which are available
to Master Lessor in the event of any breach under the Master Lease; and (b) as a
further remedy, if Sublessee fails to perform any act on its part to be
performed pursuant to the requirements of the Master Lease or as otherwise
required by this Sublease, within any applicable grace periods provided herein,
then Sublessor may, but shall not be obligated to, fulfill such obligations of
Sublessee, including entering the Sublease Premises to perform any such act, and
all costs and expenses incurred by Sublessor in doing so shall be deemed
Additional Rent payable by Sublessee to Sublessor upon demand.
3.6 SUBLESSOR'S REPRESENTATIONS AND WARRANTIES. As an inducement to Sublessee to
enter the Sublease, to Sublessor's Knowledge, Sublessor represents and warrants
that:
(a) There are no pending or threatened actions, suits or proceedings
before any court or administrative agency against Sublessor or against Master
Lessor or third parties which could, in the aggregate, adversely affect the
Sublease Premises or any part thereof or the ability of Master Lessor to perform
its obligations under the Master Lease or of Sublessor to perform its
obligations under the Sublease, and Sublessor is not aware of any facts which
might result in any such actions, suits or proceedings;
(b) There is no pending or threatened condemnation or similar
proceedings affecting the Premises or any portion thereof, and to Sublessor's
Knowledge no such action currently is contemplated; and
(c) There are no defaults under the Master Lease, nor has any event
occurred that with notice or the passage of time would constitute a default
under the Master Lease.
3.7 SUBLESSEE'S REPRESENTATIONS AND WARRANTIES. As an inducement to Sublessor to
enter the Sublease, to Sublessee's actual current knowledge, Sublessee
represents and warrants that:
(a) There are no pending or threatened actions, suits or proceedings
before any court or administrative agency against Sublessee or third parties
which could, in the aggregate, adversely affect the Sublease Premises or any
part thereof or the ability of Sublessee to perform its obligations under the
Sublease, and Sublessee is not aware of any facts which might result in any such
actions, suits or proceedings.
ARTICLE 4: SUBLEASE TERM.
4.1 COMMENCEMENT AND TERMINATION DATES. The term of this Sublease ("SUBLEASE
TERM") shall be for the period of time commencing on the scheduled commencement
date described in Article 1 (the "COMMENCEMENT DATE") and ending on the
termination date described in Article 1 or on such earlier date of termination
as provided in this Sublease (the "TERMINATION DATE").
4.2 DELAY IN COMMENCEMENT. If for any reason possession of the Sublease Premises
has not been delivered to Sublessee by the scheduled Commencement Date or any
other date, Sublessor shall not be liable to Sublessee or any other person or
entity for any loss or damage resulting therefrom. In the event of such delay,
the Commencement Date and the Rental Commencement Date shall be delayed by an
equivalent period of time, but the Termination Date shall not be extended. If
Sublessor is unable to deliver possession of the Sublease Premises to Sublessee
by August 31, 2002, then Sublessee may terminate this Sublease by giving written
notice to Sublessor at any time after that date, and the parties shall have no
further liability thereafter accruing under this Sublease; provided, however,
that if Sublessor tenders possession to Sublessee within five (5) days after
receipt of Sublessee's notice of termination, such notice shall be void.
4.3 EARLY OCCUPANCY. If Sublessor and Master Lessor permit Sublessee to occupy
the Sublease Premises prior to the Commencement Date, such occupancy shall be
subject to all of the provisions of this Sublease (including, without
limitation, Articles 10 and 14) and the Master Lease, including the payment of
Additional Rent. Early occupancy of the Sublease Premises shall not advance the
Termination Date. Sublessee shall, prior to entering the Sublease Premises,
deliver to Sublessor certificates of insurance evidencing the policies required
of Sublessee under this Sublease.
ARTICLE 5: RENT AND ADDITIONAL EXPENSES.
5.1 PAYMENT OF RENT. All monies payable by Sublessee under this Sublease shall
constitute "RENT" for all purposes under this Sublease. All Rent shall be paid
in lawful money of the United States, without any deduction, offset or demand,
to Sublessor at the address specified in Article 1 or such other place as
Sublessor may designate in writing. No payment by Sublessee of a lesser amount
than the Rent herein stipulated shall be deemed to be other than on account of
the earliest stipulated Rent, nor shall any endorsement or statement on any
check or any letter accompanying any check or payment of Rent be deemed an
accord and satisfaction, and Sublessor may accept such check or payment without
prejudice to its right to recover the balance of such Rent or to pursue any
other remedy. Rent for any partial calendar months at the beginning or end of
the Sublease Term shall be prorated based on a thirty (30) day month.
5.2 MINIMUM MONTHLY RENT. Sublessee shall pay to Sublessor the sum set forth in
Article 1 hereof as "MINIMUM MONTHLY RENT", in advance, on the first day of each
calendar month throughout the Sublease Term, commencing on the Rental
Commencement Date.
5.3 ADDITIONAL RENT. Commencing on the Commencement Date (or, if earlier, upon
occupancy of the Sublease Premises by Sublessee), Sublessee shall pay to
Sublessor, on the first day of each calendar month, as "ADDITIONAL RENT,"
Sublessee's Pro Rata Share (based on the percentage set forth in Article 1.12)
of estimated payments due under the Master Lease for Operating Expenses and Real
Property Taxes for the Premises. However, notwithstanding anything to the
contrary contained in this Sublease, Sublessee shall not be required to pay any
Additional Rent or perform any obligation that is (i) fairly allocable to any
period of time prior to the Commencement Date or following the Termination Date
or earlier expiration of the Sublease Term; or (ii) payable as a result of a
default by Sublessor of any of its obligations under the Master Lease (unless
such default is a result of Sublessee's default under this Sublease). As of the
Commencement Date, Additional Rent is estimated to be Twenty-six cents ($0.26)
per rentable square foot per month.
Pursuant to the terms of the Master Lease, Master Lessor is required to
reconcile the actual expenses for the Premises as compared to the estimated
payments made throughout the preceding calendar year. Following Sublessor's
receipt of such reconciliation from Master Lessor, Sublessor shall promptly
forward a copy of such reconciliation to Sublessee, and there shall be an
adjustment between Sublessor and Sublessee for any over or under payment of such
Additional Rent items for the preceding calendar year, with payment to Sublessor
or credit to Sublessee against the next installment of Additional Rent (or
refund following the expiration of the Sublease Term), as the case may require,
within 10 days after Sublessor's delivery of such reconciliation to Sublessee.
5.4 PREPAID RENT. Concurrently with Sublessee's execution of this Sublease,
Sublessee shall pay to Sublessor the sum specified in Article 1 as Prepaid Rent,
which shall be applied to the installments of Minimum Monthly Rent and
Additional Rent first coming due under this Sublease.
5.5 LATE CHARGE. If Sublessee fails to pay any Rent within five (5) business
days following the date that such Rent is due hereunder, then Sublessee shall
pay Sublessor a late charge equal to ten percent (10%) of such delinquent amount
as liquidated damages for Sublessee's failure to make timely payment, but in no
event more than the maximum late charge allowed by law; provided, however,
Sublessee shall be entitled to one waiver during the Sublease Term of the late
charges set forth in this section. Any notice given by Sublessor pursuant to any
statute governing unlawful detainer actions shall be deemed to be concurrent
with, and not in addition to, the notice required herein. This provision for a
late charge shall not be deemed to grant Sublessee a grace period or extension
of time for performance. If any Rent remains delinquent for a period in excess
of fifteen (15) days then, in addition to such late charge, Sublessee shall pay
to Sublessor interest on the delinquent amount from the date such amount was due
until the date such amount is paid in full, at the Interest Rate (as defined in
Section 1.12 of the Master Lease).
5.6 RENT ABATEMENT. If Sublessor receives an abatement of Rent under the Master
Lease pertaining to the Sublease Premises, then Sublessee shall be entitled to
an abatement of Rent for the same period in the proportion that rentable square
feet of the Sublease Premises that Sublessee is prevented from using, and does
not use, bears to the total rentable square feet of the Sublease Premises.
Notwithstanding the foregoing to the contrary, if the damage is due to the
negligence or willful misconduct of Sublessee or Sublessee's agents,
contractors, licensees, subtenants, employees or invitees, there shall be no
abatement of Rent to the extent there are insufficient rent loss proceeds.
ARTICLE 6: SECURITY DEPOSIT.
6.1 SECURITY DEPOSIT. Upon execution of this Sublease, Sublessee shall deposit
with Sublessor in cash the sum specified in Article 1 hereof as a security
deposit, and not as prepayment of rent (the "SECURITY DEPOSIT"). The Security
Deposit shall be held by Sublessor as security for Sublessee's faithful
performance under this Sublease. If Sublessee fails to pay any Rent as and when
due under this Sublease or otherwise fails to perform its obligations hereunder,
then Sublessor may, at its option and without prejudice to any other remedy
which Sublessor may have, apply, use or retain all or any portion of the
Security Deposit toward the payment of delinquent Rent or for any loss or damage
sustained by Sublessor due to such failure by Sublessee and, in this regard,
Sublessee hereby waives any restriction on the uses to which the Security
Deposit may be put contained in any applicable law. Sublessee shall upon demand
restore the Security Deposit to the original sum deposited. The Security Deposit
shall not bear interest nor shall Sublessor be required to keep such sum
separate from its general funds. If Sublessor transfers the Sublease Premises
during the Sublease Term, Sublessor may pay the Security Deposit to any
transferee of Sublessor's interest in conformity with the provisions of
applicable law, in which event the transferring Sublessor will be released from
all liability for the return of the Security Deposit provided such transferee
assumes Sublessor's obligations under this Sublease. Provided Sublessee is not
in default beyond any applicable notice and cure period, then to the extent not
otherwise applied by Sublessor as provided herein, the Security Deposit shall be
returned to Sublessee within thirty (30) days after the termination of the
Sublease Term. In the event of bankruptcy or other debtor-creditor proceedings
filed by or against Sublessee, such Security Deposit shall be deemed to be
applied first to the payment of Rent due Sublessor for the period immediately
prior to the filing of such proceedings.
6.2 REDUCTION IN THE SECURITY DEPOSIT. Provided that Sublessee has not paid Rent
later than the fifth (5th) day of any month and has not been in default of any
Sublease provisions more than once during each Sublease Year (other than those
pertaining to the payment of Rent, which are governed by the first clause of
this paragraph), Sublessor shall apply $18,811.00 from the Security Deposit to
the installment of Minimum Monthly Rent and Additional Rent payable for the
thirty-first (31st) month of the Sublease Term. Following the application of the
Security Deposit to Rent as described in the preceding sentence, Sublessee's
Security Deposit requirement under the terms of the Sublease shall be reduced by
such amount(s) for the balance of the Sublease Term. As used herein, the term
"Sublease Year" shall mean each 12-month period during the Sublease Term,
beginning on the Commencement Date.
ARTICLE 7: USE.
7.1 USE OF THE SUBLEASE PREMISES. Sublessee shall use the Sublease Premises
solely for the purposes specified in Article 1 in strict conformance with the
applicable requirements of the Master Lease, and for no other purpose
whatsoever.
7.2 SUITABILITY. Sublessee acknowledges that, except as may be explicitly stated
in this Sublease, neither Sublessor nor any agent of Sublessor has made any
representation or warranty with respect to the Sublease Premises, the permitted
uses that can be made of the Sublease Premises under existing laws, or the
suitability of the Sublease Premises for the conduct of Sublessee's business,
nor has Sublessor agreed to undertake any modification, alteration or
improvement to the Sublease Premises.
7.3 HAZARDOUS MATERIALS.
7.3.1 DEFINITIONS. As used herein, the term "HAZARDOUS MATERIAL" shall
mean any hazardous or toxic substance, material or waste which is or becomes
regulated by any state, federal, or local government authority, including
without limitation all of those materials and substances designated as hazardous
or toxic by the Environmental Protection Agency, the Department of Labor, the
Department of Transportation, the Department of Agriculture, the Department of
Health Services or the Food and Drug Agency. Without limiting the generality of
the foregoing, the term "Hazardous Material" shall include (i) any substance,
product, waste or other material of any nature whatsoever which may give rise to
liability under any statutory or common law theory based on negligence,
trespass, intentional tort, nuisance or strict liability or under any reported
decisions of a state or federal court; (ii) gasoline, diesel fuel, or other
petroleum hydrocarbons; (iii) polychlorinated biphenyls; (iv) asbestos
containing materials; (v) urea formaldehyde foam insulation; and (vi) radon gas.
As used herein, the term "Hazardous Material Law" shall mean any applicable
statute, law, ordinance, or regulation of any governmental body or agency which
regulates the use, storage, generation, discharge, treatment, transportation,
release, or disposal of any Hazardous Material.
7.3.2 USE RESTRICTION. Sublessee shall not cause or permit any
Hazardous Material to be used, stored, generated, discharged, treated,
transported to or from, released or disposed of in, on, over, through, or about
the Sublease Premises, or any other land or improvements in the vicinity of the
Sublease Premises, without the prior written consent of Master Lessor and
Sublessor, which consent may be withheld in the sole and absolute discretion of
Master Lessor and/or Sublessor; provided, however, that subject to the terms of
Section 8.4 of the Master Lease, Sublessee may use small quantities of household
cleaners and office supplies typically used in connection with professional
offices so long as such use is in strict compliance with all Hazardous Material
Law. In addition, concurrently with the execution of this Sublease, Sublessee
shall complete and deliver to Sublessor and Master Lessor an Environmental
Questionnaire in the form attached as EXHIBIT "H" to the Mater Lease. Without
limiting the generality of the foregoing, (a) any use, storage, generation,
discharge, treatment, transportation, release, or disposal of Hazardous Material
by Sublessee shall strictly comply with all applicable Hazardous Material Laws,
and (b) if the presence of Hazardous Material on the Sublease Premises caused or
permitted by Sublessee or its agents, employees, invitees, visitors or
contractors results in contamination of the Sublease Premises or any soil, air,
ground or surface waters under, through, over, on, in or about the Sublease
Premises, Sublessee, at its expense, shall promptly take all actions necessary
to remediate such condition in accordance with all applicable Hazardous Material
Laws.
7.3.3 SUBLESSOR'S REPRESENTATION. Except as previously disclosed to
Sublessee, to Sublessor's Knowledge, (i) no Hazardous Material is present on or
about the Sublease Premises or the soil, surface water or groundwater thereof;
(ii) no underground storage tanks are present on or about the Sublease Premises;
and (iii) no action, proceeding or claim is pending or threatened regarding the
Sublease Premises concerning any Hazardous Material or pursuant to any Hazardous
Material Law.
7.3.4 EXEMPTION OF SUBLESSEE. Sublessee shall have no obligation or
liability with respect to any Hazardous Materials placed on or about the
Sublease Premises prior to the Commencement Date, except to the extent that such
contamination has been exacerbated by Sublessee or Sublessee's agents,
employees, invitees, visitors or contractors or by Sublessee's failure to
perform its obligations under this Section 7.
ARTICLE 8: SURRENDER.
8.1 CONDITION OF THE SUBLEASE PREMISES. Subject to the provisions of this
Sublease and the Master Lease regarding damage or destruction due to casualty or
condemnation, upon the expiration or earlier termination of this Sublease,
Sublessee shall, at its sole cost and expense, deliver the Sublease Premises
broom clean and in as good order, condition and repair as when received or as
improved by Sublessee, with all of Sublessee's personal property and those
items, if any, of Sublessee Improvements or alterations identified by Sublessor
pursuant to Section 8.3 removed.. Furthermore, Sublessee agrees to repair any
damage to the Sublease Premises, or the building of which the Sublease Premises
are a part, caused by or related to the removal of any articles of personal
property, business or trade fixtures, machinery, equipment, cabinetwork, signs,
furniture, movable partitions or permanent improvements or additions which
Sublessor allows or requires Sublessee to remove pursuant to Section 8.3,
including, without limitation, repairing the floor and patching and/or painting
the walls where required by Sublessor to the reasonable satisfaction of
Sublessor and/or Master Lessor, all at Sublessee's sole cost and expense.
Sublessee shall indemnify Sublessor against any loss or liability resulting from
delay by Sublessee in so surrendering the Sublease Premises, including, without
limitation, any claims made by the Master Lessor and/or any succeeding tenant
founded on such delay. Such indemnity obligation shall survive the expiration or
earlier termination of this Sublease.
8.2 SUBLESSOR'S RIGHT TO ACCESS. In the thirty (30) days prior to the expiration
of this Sublease, or such longer time as is reasonably necessary, Sublessor
shall have the right, upon at least twenty-four (24) hours prior notice, to
enter the Sublease Premises to remove personal property belonging to Sublessor,
if any (including without limitation any business or trade fixtures, machinery,
equipment, cabinetwork, signs, furniture, and movable partitions owned by
Sublessor and located within the Sublease Premises) and to remove any
improvements or additions, if any, that Sublessor is required to remove prior to
surrender of the Premises pursuant to the Master Lease (not including those
items to be removed by Sublessee pursuant to Article 8.1 of this Sublease). Any
work performed by Sublessor pursuant to the terms of the preceding sentence
shall be done in a reasonable manner to minimize the amount of inconvenience and
interference to Sublessee's use and occupancy of the Sublease Premises;
provided, however, Sublessor shall not be liable to Sublessee for any such
inconvenience or interference caused by Sublessor's exercise of its rights
pursuant to this provision.
8.3 REMOVAL OF SUBLESSEE IMPROVEMENTS AND ALTERATIONS. Sublessee shall not be
required to remove any of the Sublessee Improvements or alterations installed by
or on behalf of Sublessee unless Sublessee is notified, at the time that it
requests consent to such improvements or alterations, that such improvements
and/or alterations must be removed at the end of the Sublease Term. In no event
will Sublessee be required to remove any alterations and/or improvements in the
Sublease Premises which were not installed by or on behalf of Sublessee or
Sublessee's licensees or subtenants.
ARTICLE 9: CONSENT. Whenever the consent or approval of Master Lessor is
required pursuant to the terms of the Master Lease, for the purposes of this
Sublease, Sublessee, in each such instance, shall be required to obtain the
written consent or approval of both Master Lessor and Sublessor. If Master
Lessor refuses to grant its consent or approval, Sublessor may withhold its
consent or approval and Sublessee agrees that such action by Sublessor shall be
deemed reasonable.
ARTICLE 10: INSURANCE. All insurance policies required to be carried by "Tenant"
under the Master Lease shall be maintained by Sublessee pursuant to the terms of
the Master Lease; provided, however, that Subtenant shall not have a deductible
amount exceeding Five Thousand Dollars ($5,000.00). Such policies shall name
Sublessor and Master Lessor (and such other lenders, persons, firms, or
corporations as are designated by Sublessor or Master Lessor) as additional
insureds by endorsement. All policies shall be written as primary policies with
respect to the interests of Master Lessor and Sublessor and such other
additional insureds and shall provide that any insurance carried by Master
Lessor or Sublessor or such other additional insureds is excess and not
contributing insurance with respect to the insurance required hereunder. All
policies shall also contain "cross liability" or "severability of interest"
provisions and shall insure the performance of the indemnity set forth in
Article 14 of this Sublease. Sublessee shall provide Master Lessor and Sublessor
with copies or certificates of all policies, including in each instance an
endorsement providing that such insurance shall not be cancelled or amended
except after thirty (30) days prior written notice to Master Lessor and
Sublessor. All certificates delivered to Master Lessor and Sublessor shall
specify the limits of the policy and all deductibles thereunder.
ARTICLE 11: NOTICES.
11.1 NOTICE REQUIREMENTS. All notices, demands, consents, and approvals which
may or are required to be given by either party to the other under this Sublease
shall be in writing and may be given by (i) personal delivery, (ii) nationally
recognized overnight courier such as Federal Express, (iii) facsimile
transmission, or (iv) United States registered or certified mail addressed as
shown in Article 1. Any notice or demand so given shall be deemed to be
delivered or made on (i) the date personal service is effected, (ii) the next
business day if sent by overnight courier, (iii) the same day as given if sent
by facsimile transmission which is received by 5:00 p.m. Pacific time so long as
a copy is concurrently deposited in the United States mail, postage prepaid, or
(iv) the second business day after the same is deposited in the United States
Mail as registered or certified and addressed as above provided with postage
thereon fully prepaid. Either party hereto may change its address at any time by
giving written notice of such change to the other party in the manner provided
herein at least ten (10) calendar days prior to the date such change is desired
to be effective.
11.2 NOTICES FROM MASTER LESSOR. Each party shall provide to the other party a
copy of any notice or demand received from or delivered to Master Lessor within
one (1) business day of receiving or delivering such notice or demand.
ARTICLE 12: DAMAGE, DESTRUCTION, CONDEMNATION. To the extent that the Master
Lease gives Sublessor any rights following the occurrence of any damage,
destruction or condemnation to terminate the Master Lease, to repair or restore
the Sublease Premises, to contribute toward such repair or restoration costs to
avoid termination, to obtain and utilize insurance or condemnation proceeds to
repair or restore the Sublease Premises, or any similar rights, such rights
shall be reserved to and exercisable solely by Sublessor, in its sole and
absolute discretion, and not by Sublessee. The exercise of any such right by
Sublessor shall under no circumstances constitute a default or breach under this
Sublease or subject Sublessor to any liability therefor.
ARTICLE 13: ENTRY BY SUBLESSOR. Sublessee shall permit Sublessor and its agents
to enter the Sublease Premises at any reasonable time during business hours
(i.e., between 8:00 a.m. and 5:00 p.m.) for the purpose of inspecting the same
or posting a notice of non-responsibility for alterations, additions or repairs,
provided that Sublessor provides at least twenty-four (24) hours prior notice
(except that no notice shall be required in the case of emergency).
ARTICLE 14: INDEMNITY; EXEMPTION OF SUBLESSOR FROM LIABILITY.
14.1 SUBLESSEE INDEMNITY. Sublessee shall indemnify, defend (with counsel
reasonably satisfactory to Sublessor), protect and hold harmless Sublessor and
its agents, employees, contractors, stockholders, officers, directors,
successors and assigns from and against any and all claims, demands, actions,
suits, proceedings, liabilities, obligations, losses, damages, judgments, costs,
penalties, fines, and expenses (including, but not limited to, attorneys',
consultants' and expert witness fees) arising out of, resulting from, or related
to (i) any injury or death to any person or injury or damage to property caused
by, arising out of, or involving any of the following: (A) Sublessee's use of
the Sublease Premises, the conduct of Sublessee's business therein, or any
activity, work or thing done, permitted or suffered by Sublessee in or about the
Sublease Premises or the common areas of the Building, (B) a breach by Sublessee
in the performance in a timely manner of any obligation of Sublessee to be
performed under this Sublease, or (C) the negligence or willful misconduct of
Sublessee or Sublessee's agents, contractors, employees, subtenants, licensees,
or invitees, and/or (ii) the storage, use, generation, discharge, treatment,
transportation, presence, release or disposal of any Hazardous Material by
Sublessee or its agents, employees, invitees, visitors or contractors in, on,
over, through, from, about, or beneath the Sublease Premises or any nearby
premises. This indemnity shall survive the expiration or earlier termination of
this Sublease.
14.2 SUBLESSOR INDEMNITY. Sublessor shall indemnify, defend (with counsel
reasonably satisfactory to Sublessee), protect and hold Sublessee harmless from
and against any and all claims, demands, actions, suits, proceedings,
liabilities, obligations, losses, damages, judgments, costs, expenses
(including, but not limited to, attorneys', consultants' and expert witness
fees) arising out of, resulting from, or related to any injury or death to any
person or injury or damage to property caused by, arising out of, or involving:
(i) the active negligence or willful misconduct of Sublessor or Sublessor's
agents, contractors, employees, subtenants, licensees, or invitees, or (ii) any
breach or any representation or warranty of Sublessor made under this Sublease,
or (iii) any breach under the Master Lease by Sublessor. This indemnity shall
survive the expiration or earlier termination of this Sublease.
14.3 SUBLESSEE WAIVER. Sublessee, as a material part of the consideration to
Sublessor, hereby assumes all risk of damage to property or injury to persons
in, upon or about the Sublease Premises arising from any cause and Sublessee
hereby waives all claims in respect thereof against Sublessor, except in
connection with damage or injury caused solely by the gross negligence or
willful misconduct of Sublessor or its authorized agents; provided, however,
that in no event shall Sublessor be liable for any loss of profits or any
special, indirect, incidental, consequential or punitive damages, however caused
and on any theory of liability. This waiver shall survive the expiration or
earlier termination of this Sublease.
14.3 MUTUAL WAIVER OF SUBROGATION. Each party (the "FIRST PARTY") hereby
releases the other party (the "SECOND PARTY"), and its partners, officers,
agents, employees, and servants, from any and all claims, demands, loss,
expense, or injury to the Sublease Premises or to the furnishings, fixtures,
equipment, inventory, or other property in, about, or upon the Sublease
Premises, which is caused by or results from perils, events, or happenings which
are the subject of fire or other casualty insurance carried by the First Party
at the time of such loss or which would have been in force had the First Party
carried the insurance required hereunder or by the Master Lease (collectively,
the "EFFECTIVE COVERAGE") irrespective of any negligence on the part of the
Second Party that may have contributed to or caused such loss; subject to the
following limitations: (i) the Second Party shall not be released from any
liability to the extent that such damages are not covered by the insurance
recovery under the Effective Coverage or are the result of willful acts by the
Second Party, and (ii) the Second Party shall be responsible for reimbursing the
First Party for any deductible owed as a result of such damages. Each party
shall use commercially reasonable efforts to obtain, if needed, appropriate
endorsements to its policies of insurance with respect to the foregoing
releases; provided, however, that failure to obtain such endorsements shall not
affect the releases hereinabove given.
ARTICLE 15: ASSIGNMENT AND SUBLETTING. Sublessee shall not voluntarily or by
operation of law assign this Sublease or enter into license or concession
agreement, sublet all or any part of the Sublease Premises, or otherwise
transfer, mortgage, pledge, hypothecate or encumber all or any part of
Sublessee's interest in this Sublease or in the Sublease Premises or any part
thereof, without the prior written consent of Master Lessor (pursuant to the
terms of the Master Lease) and Sublessor (whose consent shall not be
unreasonably withheld, conditioned or delayed). Any attempt to do so without
such consent being first had and obtained shall be wholly void and shall
constitute a default by Sublessee under this Sublease. Sublessee hereby
irrevocably assigns to Sublessor all Rent and other sums or consideration in any
form, from any subletting or assignment, and agrees that Sublessor, as assignee
and as attorney-in-fact for Sublessee, or a receiver for Sublessee appointed
upon Sublessor's application, may collect such Rent and other sums and apply the
same against amounts owing to Sublessor in the event of Sublessee's default;
provided, however, that until the occurrence of any act of default by Sublessee
or Sublessee's subtenant, Sublessee shall have the right to collect such sums,
provided that all sums in excess of the Minimum Monthly Rent set forth herein
which any subtenant covenants to pay shall belong solely and exclusively to
Sublessor and be paid to Master Lessor in accordance with Section 18.5 of the
Master Lease. Notwithstanding any assignment or subletting, Sublessee shall not
be relieved of its obligations hereunder, and a consent to one assignment or
subletting shall not constitute a consent to any other assignment or subletting
or a waiver of the provisions of this section.
ARTICLE 16: DELIVERY OF DOCUMENTS. Sublessee shall execute and deliver any
document or other instrument required by Master Lessor or Sublessor pursuant to
the Master Lease within five (5) days following receipt of a written request
from Master Lessor or Sublessor. Failure to comply with this provision shall
constitute a default by Sublessee under this Sublease without any further notice
to Sublessee.
ARTICLE 17: HOLDING OVER. Any holding over by Sublessee after the termination of
the Sublease Term shall constitute a tenancy at sufferance and not a renewal or
extension of this Sublease or give Sublessee any rights in or to the Sublease
Premises. In the event of any such holding over, Sublessor and Master Lessor may
seek any and all remedies available to Sublessor and/or Master Lessor at law or
in equity, and Sublessee shall pay Sublessor upon demand, (i) an amount equal to
the greater of : (A) One Hundred Seventy Five Percent (175%) of the most recent
applicable Minimum Monthly Rent, or (B) fair market value for the Sublease
Premises at such time, computed on a daily basis for each day of the holdover
period, plus (ii) all other amounts due and payable under the Sublease, plus
(iii) all other amounts that Sublessor may become liable for under the Master
Lease; provided nothing herein shall be construed to require Sublessee to be
responsible for consequential damages.
ARTICLE 18: OPTIONS. Any right of Sublessor to extend or renew the term of the
Master Lease or to expand the Premises (if any), shall be reserved to and
exercisable solely by Sublessor, in its sole discretion, and not by Sublessee.
Sublessor agrees to exercise such rights to extend or renew the Master Lease
only to the extent necessary to fulfill its obligations under this Sublease.
ARTICLE 19: PARKING. Subject to the terms of the Master Lease and such
reasonable rules and regulations that may be promulgated by Master Lessor and/or
Sublessor from time to time, Sublessee shall have the non-exclusive right in
common with other tenants and occupants of the Building to use, free of a
monthly fee during the Sublease Term, the number of parking spaces referenced in
Article 1, located in the Phase One common areas.
ARTICLE 20: SIGNAGE. Subject to the terms and conditions of Section 8.3 of the
Master Lease, Sublessee shall have the right to place up to two (2) signs on the
two (2) building facades (an example of which is shown on one of the attachments
to EXHIBIT D) closest to the Southwest corner of the building of which the
Sublease Premises are a part. Such two (2) signs shall not exceed in the
aggregate Thirty (30) square feet and shall otherwise be in strict compliance
with the sign criteria attached hereto as EXHIBIT D.
ARTICLE 21: FURNITURE. For the Sublease Term and subject to the terms of
Xxxxxxxxx 00, Xxxxxxxxx shall be entitled to use all existing furniture
currently located at the Sublease Premises, which is shown on the furniture
layout attached as EXHIBIT E (the "Furniture"). In the event that Sublessee
requires additional furniture, fixtures or equipment, Sublessee shall acquire
such furniture, fixtures or equipment at its sole cost and expense. Sublessee
agrees to take possession of the Furniture "AS IS", without relying on any
representation or warranty by Sublessor as to the condition of the Furniture.
Sublessee further acknowledges that neither Sublessor nor its agents have made
any representations or warranties, express or implied, as to the suitability or
fitness of the Furniture for the conduct of Sublessee's business or for any
other purpose. Sublessee agrees, at its sole cost and expense, to maintain the
Furniture in the same condition and repair, allowing for reasonable wear and
tear. In accordance with the terms of Section 12 the Master Lease, Sublessee
shall maintain insurance on the Furniture during the Sublease Term in an amount
not less than the full replacement cost thereof. In the event that the Furniture
is damaged during the Sublease Term, Sublessor shall be given the insurance
proceeds for the replacement cost of the Furniture damaged; provided, however,
Sublessor shall be under no obligation to replace the damaged Furniture. Any
installations, replacements, and substitutions of parts or accessories with
respect to any of the Furniture shall be paid for by Sublessee and shall
constitute accessions and shall become part of the Furniture and shall be the
property of Sublessor. Sublessor shall not be under any liability or obligation
in any manner to provide service, maintenance, replacements or repairs for the
Furniture. The Furniture shall remain at all times the property of Sublessor,
and shall be used by Sublessee during the Sublease Term free of charge;
provided, however, if during the entire Sublease Term Sublessee fully and
faithfully performs every provision of this Sublease to be performed by it, then
following Sublessee's surrender of the Sublease Premises in the condition
required by this Sublease, Sublessor shall transfer all right, title and
interest in the Furniture to Sublessee for no additional consideration and shall
execute a xxxx of sale acknowledging such transfer (with all transfer taxes to
by paid by Sublessee).
ARTICLE 22: GENERAL PROVISIONS.
22.1 SEVERABILITY. If any term or provision of this Sublease shall, to any
extent, be determined by a court of competent jurisdiction to be invalid or
unenforceable, the remainder of this Sublease shall not be affected thereby, and
each term and provision of this Sublease shall be valid and enforceable to the
fullest extent permitted by law.
22.2 ATTORNEYS' FEES; COSTS OF SUIT. If Sublessee or Sublessor shall bring any
action or proceeding for any relief against the other, declaratory or otherwise,
arising out of this Sublease, including any suit by Sublessor for the recovery
of Rent or possession of the Sublease Premises, the prevailing party shall be
entitled to recover its reasonable attorneys' fees, expert witness' fees, and
costs.
22.3 WAIVER. No covenant, term or condition or the breach thereof shall be
deemed waived, except by written consent of the party against whom the waiver is
claimed, and any waiver of the breach of any covenant, term or condition shall
not be deemed to be a waiver of any other covenant, term or condition or any
subsequent failure to perform the same or any other such term, covenant or
condition. Acceptance by Sublessor of any performance by Sublessee after the
time the same shall have become due shall not constitute a waiver by Sublessor
of the breach or default of any covenant, term or condition unless otherwise
expressly agreed to by Sublessor in writing.
22.4 BROKERAGE COMMISSIONS. The parties represent and warrant to each other that
they have dealt with no brokers, finders, agents or other person in connection
with the transaction contemplated hereby to whom a brokerage or other commission
or fee may be payable, except for the brokers named in Article 1, whose fees
shall be paid pursuant to a separate written agreement by Sublessor. Each party
shall indemnify, defend and hold the other harmless from any claims arising from
any breach by the indemnifying party of the representation and warranty in this
Section 22.4.
22.5 BINDING EFFECT. Preparation of this Sublease by Sublessor or Sublessor's
agent and submission of the same to Sublessee shall not be deemed an offer to
lease. This Sublease shall become binding upon Sublessor and Sublessee only when
fully executed by Sublessor and Sublessee. Sublessor and Sublessee acknowledge
and agree that this Sublease is expressly conditioned upon obtaining the consent
of Master Lessor hereto following such full execution by Sublessor and
Sublessee, which consent may be in the form attached as EXHIBIT C hereto or such
other form as Master Lessor may require. In the event such consent is not so
obtained within forty-five (45) days following the date of this Sublease, then
this Sublease shall automatically terminate and be without further force or
effect. In such event, Sublessor shall promptly return to Sublessee any Prepaid
Rent and Security Deposit paid by Sublessee to Sublessor pursuant to this
Sublease, and neither party shall have any liability to the other party
thereafter accruing.
22.6 SUBLESSOR'S KNOWLEDGE. As used in this Sublease, the term "Sublessor's
Knowledge" or words of similar import shall mean the actual current knowledge of
Xxxxxx X. Xxxxxx and/or Xxxxxxxxx Xxxxxxxx, without the duty of further
investigation or inquiry with respect to the matter to which such actual
knowledge pertains; provided, however, in no event shall this Sublease give rise
to any personal obligation, liability or duty on the part of Xxxxxx X. Xxxxxx
and/or Xxxxxxxxx Xxxxxxxx, or any other trustee, officer, director, agent,
representative or employee of Sublessor. Neither Xxxxxx X. Xxxxxx nor Xxxxxxxxx
Xxxxxxxx shall not be charged with constructive or inquiry notice or knowledge,
or imputed knowledge of any agents, contractors, or employees.
22.7 ENTIRE AGREEMENT. This instrument, along with any exhibits and addenda
hereto, constitutes the entire agreement between Sublessor and Sublessee
relative to the Sublease Premises. This Sublease may be altered, amended or
revoked only by an instrument in writing signed by both Sublessor and Sublessee.
There are no oral agreements or representations between the parties affecting
this Sublease, and this Sublease supersedes and cancels any and all previous
negotiations, arrangements, brochures, agreements, representations and
understandings, if any, between the parties hereto.
22.8 EXECUTION. This Sublease may be executed in one or more counterparts, each
of which shall be considered an original counterpart, and all of which together
shall constitute one and the same instrument. Each person executing this
Sublease represents that the execution of this Sublease has been duly authorized
by the party on whose behalf the person is executing this Sublease.
22.9 CONFLICT. In the event of any inconsistencies or conflicts between the
terms of the Master Lease and this Sublease, as between Sublessor and Sublessee
the terms of this Sublease shall control.
SUBLESSEE:
HOMEDIRECTOR, INC.
a Delaware corporation
By: __________________________________
Name: __________________________________
Title: __________________________________
SUBLESSOR:
ADAPTEC, INC.,
a Delaware corporation
By: __________________________________
Name: __________________________________
Title: __________________________________
EXHIBIT A
COPY OF MASTER LEASE
[TO BE ATTACHED]
EXHIBIT B
FLOOR PLAN
[TO BE ATTACHED]
EXHIBIT C
CONSENT TO SUBLEASE
This Consent to Sublease ("CONSENT") is made by Xxxx Center
Livermore, LLC, a California limited liability company ("MASTER LESSOR") for the
benefit of Adaptec, Inc., a Delaware corporation ("SUBLESSOR") and HomeDirector,
a Delaware corporation ("SUBLESSEE"), in the context of the following facts:
A. Sublessor is leasing from Master Lessor approximately 36,400
rentable square feet located at 0000 Xxxxxxx Xxxxxx Xxxx in the City of
Xxxxxxxxx, Xxxxxxxxxx 00000 (the "PREMISES"), on the terms and subject to the
conditions of that certain Triple Net Lease dated as of October 26, 2000 (the
"MASTER LEASE").
B. Sublessor desires to sublease to Sublessee a portion of the Premises
consisting of approximately 11,470 rentable square feet (the "SUBLEASE
PREMISES"), and Sublessee desires to sublease the Sublease Premises from
Sublessor, on the terms and conditions set forth in the Sublease Agreement to
which this Consent is attached (the "SUBLEASE").
C. Sublessor and Sublessee now desire to obtain the consent of Master
Lessor to the Sublease as required by the Master Lease.
NOW, THEREFORE, Master Lessor hereby consents to the execution and
delivery of the Sublease by and between Sublessor and Sublessee and to the
subletting of a portion of the Premises by Sublessor to Sublessee, subject to
the following terms and conditions:
1. Sublessee shall not assign the Sublease Agreement nor
sublet the Sublease Premises in whole or part, and shall not permit Sublessee's
interest in the Sublease to be vested in any third party by operation of law or
otherwise, without Master Lessor's prior written consent, which consent shall
not be unreasonably withheld provided that Sublessee fully complies with all of
the applicable requirements of the Master Lease.
2. This Consent shall not be deemed to be a consent to any
subsequent assignment or subletting. Master Lessor shall not be deemed to have
waived any rights under the Master Lease by virtue of this Consent.
3. The Sublease is in all respects subject and subordinate at
all times to the terms of the Master Lease. Insofar as the specific terms of the
Sublease purport to amend or modify or are in conflict with the specific terms
of the Master Lease, the terms of the Master Lease shall control. Master Lessor
assumes no liability whatsoever on account of anything contained in the
Sublease.
4. Neither the Sublease nor Master Lessor's consent thereto
shall release or discharge Sublessor from any liability under the Master Lease,
and Sublessor shall remain liable and responsible for the full performance and
observance of all of the provisions, covenants and conditions set forth in the
Master Lease on the part of Sublessee to be performed and observed.
5. Any rights of Sublessee under the Sublease may be enforced
only against Sublessor, and Sublessee shall have no right to enforce any of
Sublessor's rights under the Master Lease against Master Lessor by virtue of the
Sublease, this Consent, or otherwise.
6. Master Lessor consents to Sublessee placing up to two (2)
signs on the two (2) building facades closest to the Southwest corner of the
building of which the Sublease Premises are a part. Such two (2) signs shall not
exceed in the aggregate Thirty (30) square feet and shall otherwise be in strict
compliance with the sign criteria applicable to the Premises.
MASTER LESSOR
Shea Center Livermore, LLC,
a California limited liability company
By: __________________________________
Name: __________________________________
Title: __________________________________
EXHIBIT D
SIGNAGE CRITERIA
[To be attached.]
EXHIBIT E
FURNITURE LAYOUT
[To be attached.]