EXHIBIT 10.46
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EX-10.46-Material Contract
CONSENT TO SUBLEASE
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Xxxxxxxx Properties Acquisition Partners, L.P., a Delaware limited partnership
("Landlord"), hereby consents to the subletting by Venture Catalyst
Incorporated, a Utah corporation, successor-in-interest to Inland Casino
Corporation, a Utah corporation ("Tenant"), to Astute Networks, Inc., a
California corporation ("Subtenant"), pursuant to a sublease agreement attached
hereto ("Sublease"), of certain space (hereinafter referred to as the "Sublet
Space") described in the Sublease, being located on the first floor of the
building known as 16868 Via del Campo ("Building"), which Sublet Space is a
portion of the premises ("Premises") now leased and demised by Landlord to
Tenant by a lease, dated September 3, 1997 (which lease, as the same may have
been and may hereafter be amended, is herein called the "Lease"), such consent
being subject to and upon the following terms and conditions, to each of which
Tenant and Subtenant expressly agree:
1. Sublease Subordinate to Lease.
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(a) The Sublease shall be subject and subordinate at all times to the
Lease, and to all of the provisions, covenants, agreements, terms and conditions
(collectively, "provisions") of the Lease and of this Consent to Sublease
("Consent") and Subtenant shall not do or permit anything to be done in
connection with Subtenant's occupancy of the Sublet Space which would violate
any of said provisions. Any breach or violation of any provision of the Lease by
Subtenant (whether by act or omission) shall be deemed to be and shall
constitute a default by Tenant in fulfilling such provision and, in such event,
Landlord shall have all of the rights, powers and remedies provided in the
Lease, or at law, in equity, by statute or otherwise, with respect to default.
(b) Nothing herein contained shall be construed to (i) modify, waive,
impair or affect any of the provisions contained in the Lease (except as may be
expressly provided herein), (ii) waive any present or future breach of, or
default under, the Lease or any rights of Landlord against any person or entity
liable or responsible for the performance thereof, (iii) enlarge or increase
Landlord's obligations or Tenant's rights under the Lease or otherwise; and all
provisions of the Lease are hereby declared by Tenant to be in full force and
effect.
(c) Nothing herein contained shall be construed as a consent to or
approval or ratification by Landlord of any of the particular provisions of the
Sublease (except as may be herein expressly provided) or as a representation or
warranty by Landlord. Landlord has not, and will not, review or pass upon any of
the provisions of the Sublease and shall not be bound or estopped in any way by
the provisions of the Sublease.
(d) Tenant shall be and remain liable and responsible for the due
keeping, and full performance and observance, of all of the provisions of the
Lease on the part of Tenant to be kept, performed and observed, including,
without limitation, the payment of Base Rent and Additional Rent (as such terms
are defined in the Lease).
(e) Both Tenant and Subtenant shall be and continue to be liable for
all bills rendered by Landlord for charges incurred or imposed for services
rendered and material supplied to the Sublet Space.
(f) In the event of any default by Tenant or Subtenant in the full
performance and observance of any of their respective obligations hereunder,
such event may, at Landlord's option, be deemed a default under the Lease, and
Landlord shall have all of the rights, powers and remedies provided for in the
Lease, or at law, in equity, by statute, or otherwise with respect to the
default. Landlord will use good faith efforts to provide Subtenant with all
notices of default by Tenant under the Lease at the same time as such notices
are provided to Tenant, and Subtenant shall thereafter have the right to cure
such default or breach within the time period provided to Tenant to cure such
default or breach under the Lease. For purposes hereof, Subtenant's notice
address shall be deemed to be at the Sublet Space.
(g) In case of any conflict between the provisions of (i) the Lease
and the Sublease, then the provisions of the Lease shall prevail, and (ii) this
Consent and the Lease and/or the Sublease, then the provisions of this Consent
shall prevail.
2. No Assignment. Neither this Consent nor any right created hereunder
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may be assigned by Tenant or Subtenant.
3. No Further Right to Sublet. This Consent is not, and shall not be
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construed as, a consent by Landlord to, or as permitting, any other or further
subletting by either Tenant or Subtenant. Notwithstanding anything to the
contrary contained in the Lease and/or the Sublease, without the prior written
consent of Landlord in each instance: (a) the Sublease shall not be assigned,
extended or renewed, except as expressly provided in the Sublease, and (b)
neither the Sublet Space nor any part thereof shall be further sublet.
4. Use. Subject to all of the provisions of the Lease, the Sublet Space
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and each part thereof shall be used by Subtenant solely for office and related
uses and for no other purpose. Neither Tenant nor Subtenant shall use, or permit
the use of, the Sublet Space, or any part thereof, (a) in any way which would
violate any of the provisions of the Lease, (b) for any unlawful purpose, or (c)
in any unlawful manner. Neither Tenant nor Subtenant shall suffer or permit the
Sublet Space, or any part thereof, to be used in any manner, or permit anything
to be done therein, or suffer or permit anything to be brought into or kept in
the Sublet Space, or any part thereof, which, in the judgment of Landlord might
in any way impair or tend to impair (a) the character, appearance or reputation
of the Building, (b) impair or interfere with or tend to impair or interfere
with any of the Building services or the proper and economic heating, cleaning,
air conditioning or other servicing of the Building or the Sublet Space, or (c)
impair or interfere with or tend to impair or interfere with the use of any of
the other areas of the Building by, or result in discomfort, inconvenience or
annoyance to, any of the other tenants of the Building. Neither Tenant nor
Subtenant shall install or permit to be installed in the Premises or any part
thereof any electrical or other similar or dissimilar equipment of any kind
which, in the judgment of Landlord, might cause any such impairment,
interference, discomfort, inconvenience or annoyance.
5. Termination of Lease.
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(a) If, during the term of the Sublease, the term of the Lease shall
expire or the Lease shall sooner terminate, or Tenant shall surrender the Lease
to Landlord, Landlord, at its option, upon written notice given to Tenant and
Subtenant not more than thirty (30) days after the effective date of such
expiration, termination or surrender, and without any additional or further
agreement of any kind on the part of Tenant or Subtenant, may elect to require
Subtenant to attorn to Landlord. If Landlord so elects, Subtenant, upon demand
of Landlord, agrees to execute and deliver such instrument or instruments as
Landlord may reasonably request to evidence and confirm the foregoing provisions
of this Paragraph 5(a).
(b) In the event that Landlord does not elect to exercise its option
under Paragraph 5(a) hereof to require Subtenant to attorn, or Landlord gives
Subtenant written notice, before the thirtieth (30th) day of the thirty (30) day
period referred to in Paragraph 5(a) hereof, to the effect that Landlord will
not exercise such option, then, on or before the seventh (7th) day after (i) the
expiration of such thirty (30) day period or (ii) Subtenant's receipt of such
written notice, whichever shall first occur, Subtenant shall vacate the Sublet
Space. In case of the failure of Subtenant to so vacate the Sublet Space,
Landlord shall be entitled to all the rights and remedies which are available to
a landlord against a tenant holding over after the expiration of a term and to
such other rights and remedies as may be provided for in the Lease, at law, or
in equity. Tenant and Subtenant, at Xxxxxxxx's option, shall be deemed to be
occupying the Sublet Space as a tenancy at sufferance at daily Rent equal to
1/30th of an amount equal to the product of (i) two (2) times the monthly fair
market value rate multiplied by (ii) the number of square feet of Net Rentable
Area in the Premises.
6. Alterations and Signage.
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(a) No alterations, additions, or physical changes shall be made in
the Sublet Space, or any part thereof, without Landlord's prior written consent;
provided, however, that Landlord hereby pre-approves, in concept, Subtenant's
proposed alterations set forth in Attachment A (the "Proposed Improvements");
provided further, however, that all such Proposed Improvements shall be
performed (i) in compliance with all applicable laws,
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(ii) in strict accordance with the Lease, and (iii) pursuant to detailed plans
and specifications pre-approved by Landlord in writing. Notwithstanding anything
in the Lease to the contrary, Landlord acknowledges and agrees that Landlord
shall not require that Subtenant's Proposed Improvements be removed from the
Premises upon the expiration or earlier termination of the Lease so long as
Landlord has approved detailed plans and specifications for such Proposed
Improvements and has not required their removal at the time of Landlord's
approval of such detailed plans and specifications.
(b) Landlord acknowledges and agrees that Subtenant shall have the
right, at Subtenant's sole cost and expense and subject to all applicable laws,
to install one (1) sign on the exterior of the Building pursuant to Section 11.5
of the Lease displaying Subtenant's name "Astute Networks"; provided, however,
that the location, size, graphics, color, lettering, style and other indicia of
such signage shall be subject to Landlord's approval in Landlord's sole and
absolute (but good faith) discretion. Upon the expiration or earlier termination
of the Sublease, Subtenant, at Subtenant's sole cost and expense, shall remove
such signage and repair any damage to the Building caused by such removal.
Subtenant's signage rights are personal to Subtenant and may not be utilized by
any other person or entity.
7. Copy of Sublease and No Amendment. Tenant and Subtenant represent and
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warrant to Landlord that the copy of the Sublease annexed hereto as Exhibit A is
a true and correct copy thereof and that the Sublease has not been amended,
modified or changed. Tenant and Subtenant represent and warrant to Landlord
that Tenant and Subtenant shall not, without the prior written consent of
Landlord, amend or modify the Sublease in any manner.
8. Representations of Subtenant. Subtenant represents to and agrees with
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Landlord that: (a) the term of the Sublease will expire on or prior to the
date of the expiration of the term of the Lease; and (b) Subtenant is
financially responsible, of good reputation and engaged in a business which is
in keeping with the standards of Landlord in those respects for the Building and
its occupancy.
9. Miscellaneous.
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(a) This Consent may not be altered, amended, modified or changed
orally, but only by an agreement in writing signed by the party against whom
enforcement of any such alteration, amendment, modification or change is being
sought.
(b) Captions are inserted for convenience only and will not affect the
construction hereof.
(c) Any bills, statement, notices, demands, requests, consents or
other communications given or required to be given under this Consent shall be
effective only if rendered or given in writing and delivered personally (which
includes air courier service) or sent by mail (certified, return receipt
requested), postage prepaid, addressed to the respective party at the address
set forth at such party's signature hereto or at such other address as such
party may designate as its new address for such purpose by notice in accordance
with the provisions hereof, or, if addressed to Tenant or Subtenant after the
date on which such party first occupies the Premises or the Sublet Space, as the
case may be, at the Building; the same shall be deemed to have been rendered or
given on the date delivered, if delivered personally, or on the date mailed, if
mailed.
(d) This Consent constitutes the entire agreement of the parties
hereto with respect to the matters stated herein.
(e) This Consent will for all purposes be construed in accordance with
and governed by the laws of the State in which the Building is located
applicable to agreements made and to be performed wholly therein.
(f) This Consent shall not be effective until executed by all the
parties hereto and may be executed in several counterparts, each of which will
constitute an original instrument and all of which will together constitute one
and the same instrument.
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(g) Each right and remedy of Landlord provided for in this Consent or
in the Lease shall be cumulative and shall be in addition to every other right
and remedy provided for herein or therein, or now or hereafter existing, at law,
in equity, by statute, or otherwise, and the exercise, or beginning of the
exercise, by Landlord of any one or more of the rights or remedies so provided
for or existing shall not preclude the simultaneous or later exercise by
Landlord of any or all other rights or remedies so provided for or so existing.
(h) The terms and provisions of this Consent shall bind and inure to
the benefit of the parties hereto and their respective successors and assigns
except that no violation of the provisions of Paragraph 2 shall operate to vest
any rights in any successor or assignee of Tenant or Subtenant.
(i) If any one or more of the provisions contained in this Consent
shall be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired thereby.
(j) All capitalized terms used herein and not otherwise defined herein
shall be deemed to have the same meanings ascribed thereto in the Lease.
(k) Xxxxxx agrees that Tenant will pay to Landlord a processing fee of
$1,000.00, to cover Landlord's legal costs and other costs associated with the
processing of this Consent.
(Signature page follows)
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IN WITNESS WHEREOF, the parties hereto have caused these presents to be
duly executed as of May 28, 2001.
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TENANT:
Venture Catalysts Incorporated,
a Utah corporation
By: /s/ Xxxxx XxXxxxxx
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Name: Xxxxx XxXxxxxx
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Title: SVP & CFO
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Address: 591 Camino de le Reina
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Suite 418
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San Diego, CA 92108
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SUBTENANT:
Astute Networks, Inc.,
a California corporation
By: /s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
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Title: Vice-President, Finance
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Address: 000 Xxxxxxxxx Xxxxx, Xxxxx 000
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San Marco, Ca 92069
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LANDLORD:
XXXXXXXX PROPERTIES ACQUISITION PARTNERS
PARTNERS, L.P., a Delaware limited partnership
By: Xxxxxxxx Properties I, Inc.
a Delaware corporation
general partner
By: /s/ Xxxxxxxxxxx X. Xxxxx
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Name: Xxxxxxxxxxx X. Xxxxx
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Title: Vice President
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By: /s/ X. Xxxxx Xxxxxxx
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Name: X. Xxxxx Xxxxxxx
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Title: Senior Vice President
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EXHIBIT A
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THE PROPOSED IMPROVEMENTS
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Exhibit A
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