Exhibit 10.1
SUBLEASE
between
MCK COMMUNICATIONS, INC., Sublandlord
and
UPROMISE, INC., Subtenant
Dated as of July 2, 2002,
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx
SUBLEASE
THIS SUBLEASE is made as of the 2nd day of July, 2002, by and between
MCK COMMUNICATIONS, INC., a Delaware corporation, with an address at 000
Xxxxxxxx Xxxxxx, Xxxxxxx, XX 00000 ("Sublandlord") and UPROMISE, INC. , a
Delaware corporation, with an address at 00 Xxxxxxxxx Xxxxx Xxxx, Xxxxxxxxx,
Xxxxxxxxxxxxx 00000 ("Subtenant").
W I T N E S S E T H
WHEREAS, Sublandlord is the tenant under a certain lease from
Wellsford/Whitehall Holdings, L.L.C. ("Landlord") dated January 12, 2000, as
amended by the First Amendment to Lease dated as of May 25, 2000, the Second
Amendment to Lease dated as of May 31, 2000 and the Third Amendment to Lease
dated as of October 20, 2000 , copies of which are attached hereto as EXHIBIT A,
(such lease, as amended, is hereinafter referred to as the "Prime Lease"). The
premises leased to Sublandlord under the Prime Lease are a portion of the
building (the "Building") at 000 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx, which
premises are more particularly described in the Prime Lease (the "Leased
Premises"); and
WHEREAS, Subtenant wishes to sublease from Sublandlord the portion of
the Leased Premises shown on the plan attached hereto as EXHIBIT B, containing
approximately 32,665 rentable square feet (the "Sublet Premises"), and
Sublandlord is willing to sublet the Sublet Premises to Subtenant;
NOW, THEREFORE, the parties hereto agree as follows:
1. DEMISE. Sublandlord hereby subleases the Sublet Premises to
Subtenant and Subtenant hereby sublets the Sublet Premises from Sublandlord,
subject to the terms and conditions hereinafter stated, together with the
non-exclusive right, in common with others entitled thereto, to use as
appurtenant to the Sublet Premises, the Building corridors, lavatories, parking
areas, walkways, driveways and other common areas and elements of the Building
and the land of which the Sublet Premises are a part. Capitalized terms used in
this Sublease which are defined in or by reference in the Prime Lease and not
otherwise defined in this Sublease shall have the same meaning in this Sublease
as in the Prime Lease.
2. TERM The term of this Sublease (the "Sublease Term") shall commence
on August 6, 2002 (the "Commencement Date") and end on March 30, 2007.
Sublandlord agrees that in the event that Sublandlord has not vacated
the Sublet Premises and delivered full possession of the same to Subtenant by
August 6, 2002, the Commencement Date shall be delayed until the date that
Sublandlord shall so vacate the Sublet Premises and deliver full possession of
the same to Subtenant, and Sublandlord will credit Subtenant toward Base Rent
and Additional Rent due hereunder an amount equal to $2,819.00 for each day
beyond August 6, 2002 that Sublandlord continues to occupy the Sublet Premises
and/or fails to deliver full possession of the same to Subtenant.
3. DELIVERY OF SUBLET PREMISES. Subtenant expressly acknowledges that
it has inspected the Sublet Premises and is fully familiar with the physical
condition thereof, and agrees to accept the Sublet Premises in its "as is"
condition on the date hereof, reasonable wear and tear excepted. Subtenant
further acknowledges that neither Sublandlord nor any agent of Sublandlord has
made any representations or warranties regarding the Sublet Premises, and that
Subtenant has relied on no such representations or warranties in accepting the
Sublet Premises. Subtenant acknowledges that Sublandlord shall have no
obligation to perform any design or construction work in connection with the
preparation of the Sublet Premises for Subtenant's occupancy, to do any work in
or to the Sublet Premises, or to incur any expense in connection therewith, in
order to make them suitable and ready for occupancy and use by Subtenant.
Subtenant has the right to utilize Sublandlord's existing build out, furniture,
and installed telephone and data cabling itemized on EXHIBIT D attached hereto.
Subtenant shall be responsible, at its own cost, for creating its own telephone
and data closet and for the ongoing maintenance of the existing telephone and
data infrastructure. Subtenant shall not have the right to use the existing PBX,
photocopiers, or fax machines currently located in the Sublet Premises, and
Sublandlord agrees to remove the same from the Sublet Premises prior to the
Commencement Date.
4. RENT.
a. BASE RENT. Subtenant shall pay to Sublandlord base rent
("Base Rent") without offset, deduction or demand in the amount of $21.00 per
rentable square foot of area per year, or $685,965 per year for each Lease Year,
payable in advance in equal monthly installments of $57,163.75, commencing
ninety-two days after the Commencement Date (the "Rent Commencement Date") and
continuing on the first day of every month thereafter. Except as otherwise
expressly provided in this Sublease, beginning on the Rent Commencement Date,
Base Rent shall be payable monthly, in advance, on the first day of each
calendar month of the Term, without prior notice, demand, deduction or offset.
Base Rent shall be apportioned for any partial calendar month occurring
at the beginning or end of the Sublease Term.
All payments hereunder shall be made at the following address:
MCK Communications, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Chief Financial Officer
or at such other address as Sublandlord may from time to time designate
by written notice to Subtenant.
b. ADDITIONAL RENT. Subtenant shall pay to Sublandlord, as
Additional Rent, "Subtenant's Share" (as hereinafter defined) of all additional
rent and other charges incurred by Sublandlord under the Prime Lease, including
without limitation all "Costs of Electricity" "Expenses Increases", and "Tax
Increases", as defined in the Prime Lease (hereinafter referred to,
collectively, in this Sublease as "Building Expenses") for each calendar year or
portion thereof included in the Sublease Term; provided, however, that Subtenant
shall not be required to make any payments on account of additional rent or
other charges incurred by Sublandlord under the Prime Lease which are
attributable solely to the portion of the Leased Premises not subleased by
Subtenant hereunder, or which are attributable to Sublandlord's default or
breach under the Prime Lease (except to the extent such default or breach is due
to a default or breach by Subtenant of this Sublease); provided, further, for
purposes of determining Subtenant's Share of Building Expenses, the "Real Estate
Tax Base Year" under the Prime Lease shall be the period beginning on July 1,
2002 and ending on June 30, 2003 and the "Operating Costs Base Year" under the
Prime Lease shall be the period beginning on January 1, 2002 and ending on
December 31, 2002. As used herein "Subtenant's Share" shall mean the fraction,
the numerator of which is the number of rentable square feet leased to Subtenant
hereunder (32,665) and the denominator of which is the number of square feet
leased to Sublandlord by Landlord under the Prime Lease (48,876). For all
purposes of this Sublease, Subtenant's Share shall be 66.83%.
Within fifteen (15) days after Sublandlord has received from Landlord
the "Expense Statement" and the "Tax Statement" (as defined in the Prime Lease)
for the preceding calendar year (or portion thereof) included in the Sublease
Term, Sublandlord shall delivery a copy thereof to Subtenant, together with a
statement showing Building Expenses (i) for the calendar year just ended, which
statement shall be based upon information supplied to Sublandlord by Landlord,
(ii) an estimate of Building Expenses for the then-current calendar year, and
(iii) Subtenant's Share thereof. Subtenant shall pay to Sublandlord on the first
day of each month, in advance, as Additional Rent, an amount equal to 1/12th of
the amount shown on the most recent statement of Sublandlord's estimate of
Subtenant's Share of Building Expenses for the then-current calendar year. Such
payments shall not bear interest and may be commingled by Sublandlord with any
other funds of Sublandlord. If the total amount paid by Subtenant in accordance
with (ii) above on account of Subtenant's Share of Building Expenses for any
calendar year (or portion thereof) included in the Sublease Term (a) exceeds the
amount due herefore as shown on Sublandlord's statement delivered after the end
of such year, such excess shall be credited against the monthly installments of
Rent next due (or refunded to Subtenant if the Sublease Term has expired), or
(b) is less than the amount due herefore as shown on Sublandlord's statement
delivered after the end of such calendar year, then Subtenant shall pay the
difference to Sublandlord within thirty (30) days after receipt of such
statement from Sublandlord. Subtenant's and Sublandlord's rights and obligations
under this Section 4.b. with respect to the last calendar year (or portion
thereof) included in the Sublease Term shall survive the expiration or
termination of this Sublease.
All sums which Subtenant agrees to pay under this Sublease other than
Base Rent, or which Sublandlord pays or incurs as a result of a default by
Subtenant shall be included within the term "Additional Rent" whether or not
expressly so identified. As used in this Sublease, the term "Rent" shall mean
collectively Base Rent and Additional Rent. Subject to the provisions of Section
15 below, Subtenant shall be liable for Additional Rent only as it relates to
the period covered by this Sublease. Subtenant shall have no liability for
Additional Rent attributable to periods prior to the Commencement Date or,
subject to the provisions of Section 15 below, subsequent to the expiration of
the Sublease Term hereunder.
Sublandlord shall, promptly upon receipt of written request from
Subtenant, at Subtenant's sole cost and expense enforce the review rights as set
forth in Section 11.4 of the Prime Lease by either initiating the review on
behalf of Subtenant and at Subtenant's direction or by appointing Subtenant as
Sublandlord's agent to perform such review.
c. NET SUBLEASE. Except as otherwise expressly provided for
herein, this Sublease is intended to be a net sublease, and Subtenant shall be
responsible for the payment of all costs and expenses whatsoever, ordinary or
extraordinary, foreseen or unforeseen, imposed upon Sublandlord pursuant to or
otherwise payable by Sublandlord pursuant to the terms of the Prime Lease with
respect to the Sublet Premises and the use and occupancy thereof, expressly
excluding however (i) rent under the Prime Lease (except as expressly provided
hereunder); and (ii) any costs, expenses, penalties or fines attributable to
Sublandlord's default or breach under the Prime Lease (except to the extent such
default or breach is due to a default or breach by Subtenant of this Sublease).
5. UTILITIES. Subtenant shall pay in a timely manner all charges for
telephone, internet service, cable and other utilities contracted by Subtenant
which are now or hereafter separately billed to Subtenant by the utility
provider or by Landlord.
No interruption in any utility service to the Sublet Premises shall
give Subtenant any right to terminate this Sublease or shall give rise to any
claim for set-off or any abatement of Rent or of any of Subtenant's obligations
under this Sublease when such interruption results from any cause other than the
negligence or willful misconduct of Sublandlord or Sublandlord's agents or
employees. Notwithstanding anything in this Sublease to the contrary, in the
event of any interruption in utility or other service to the Sublet Premises,
Subtenant shall be entitled to an abatement of Rent to the extent that
Sublandlord receives an abatement of Rent with respect to the Sublet Premises
pursuant to the Prime Lease.
Subtenant shall not connect to the Building's electrical system any
equipment which operates in excess of the current capacity of such system
without Sublandlord's prior written consent.
6. EXPANSION SPACE. Subtenant shall have the following rights with
respect to the balance of the Leased Premises, comprised of approximately 16,211
rentable square feet (the "Expansion Space"):
a. EXPANSION RIGHT. Subtenant shall have the right, by notice to
Sublandlord given not later than March 31, 2003 (time being of the essence), to
sublease the Expansion Space. In the event that Subtenant shall give such notice
by the March 31, 2003, the following provisions shall be applicable from and
after the Expansion Space Commencement Date (as defined below):
i. The Expansion Space shall be deemed to be included in the
Sublet Premises, and from and wherever used in this Sublease, the term "Sublet
Premises" shall include the Expansion Premises.
ii. The term of this Sublease with respect to the Expansion
Space (the "Expansion Space Commencement Date") shall commence on the later of
(i) September 1, 2003, and (ii) the date that Sublandlord shall deliver full
possession of the Expansion Space to Subtenant, and shall terminate April 28,
2007.
iii. Base Rent for the Expansion Space shall be in the amount
of $21.00 per rentable square foot, or $340,431.00 per year for each Lease Year,
payable in advance in equal monthly installments of $28,369.25.
iv. Subtenant's Share (as defined in paragraph 4.b above)
shall increase proportionately by adding the rentable square footage of the
Expansion Space to the rentable square footage of the Sublet Premises, and
Sublandlord and Subtenant acknowledge that the addition of the Expansion Space
will affect any and all other rights or obligations hereunder which are
determined on a "per square foot" basis.
b. RIGHT OF FIRST REFUSAL. Notwithstanding Subtenant's failure to
exercise its expansion right contained in xxxxxxxxxxxx 0.x, xxxxx, Xxxxxxxxxxx
shall not accept an offer, sign a letter of intent, enter into a sublease or any
agreement to sublease (a "Third Party Offer"), with respect to the Expansion
Space without first giving Subtenant written notice ("Offer Notice") of the
same, together with a copy of the Third Party Offer, and an opportunity to
sublease the Expansion Space on business terms at least as favorable as those
contained in the Third Party Offer. If Subtenant wishes to exercise Subtenant's
right of first refusal contained herein, Subtenant shall do so, if at all, by
giving Sublandlord notice ("Subtenant's Acceptance Notice") of Subtenant's
desire to sublease the Expansion Space on such terms within ten calendar (10)
days after Sublandlord's delivery of its Offer Notice (time being of the
essence). If Subtenant shall give such Subtenant's Acceptance Notice,
Sublandlord and Subtenant shall enter into a mutually acceptable amendment to
this Sublease with respect to the Expansion Space within fifteen (15) Business
Days thereafter which shall be consistent with the terms and conditions of the
Third Party
Offer, provided, however, in the event that such terms and conditions shall be
inconsistent with the provisions of clauses a.i, a.ii and a.iv, above, clauses
a.i, a.ii and a.iv shall be controlling. If Subtenant shall not so exercise such
right within such ten day period or if Subtenant shall fail to execute and
deliver such an amendment within such fifteen day period (time being of the
essence), Sublandlord shall be free to sublease the Expansion Space to the third
party subtenant upon terms and conditions no more favorable to such subtenant
than those contained in the Third Party Offer. If Sublandlord wishes to sublease
such space on terms and conditions that are more favorable to such subtenant
than those contained in the Third Party Offer, Sublandlord shall give Subtenant
written notice of the same and, in lieu of the ten (10) calendar day period
provided above, Subtenant shall have a five (5) calendar day period to accept
the Expansion Space on the more favorable terms and conditions.
c. Subtenant's rights under this Paragraph 6 are expressly conditioned upon
(a) the original Subtenant named in the preamble to this Sublease is itself
occupying the entire Sublet Premises, (b) Subtenant is not in default hereunder
either at the time Subtenant exercises its rights under subparagraph a, or
Sublandlord provides Subtenant with the Offer Notice under subparagraph b, or
Subtenant provides Subtenant's Acceptance Notice under subparagraph b, and (c)
Subtenant's net worth shall not be materially less at the time Subtenant
exercises its rights under subparagraph a, or Sublandlord provides Subtenant
with the Offer Notice under subparagraph b, or Subtenant provides Subtenant's
Acceptance Notice under subparagraph b than Subtenant's net worth at the
execution of this Sublease. Termination of this Sublease shall terminate all
obligations of Sublandlord and all rights of Subtenant under this Section. Time
is of the essence with respect to the provisions of this Paragraph 6. The rights
of Subtenant under this Paragraph 6 shall be subordinate to the rights of the
Landlord under the Prime Lease, including, without limitation, the Landlord's
right to recapture the space.
7. USE. Subtenant shall use and occupy the Sublet Premises for the purposes
of general and administrative and sales offices only and for no other use or
purpose. Sublandlord makes no representation or warranty as to the necessity of
obtaining any license, permit or approval from any federal, state or municipal
governmental authority for such uses.
8. ASSIGNMENT AND SUBLETTING. The provisions of Section 21 of the Prime
Lease are hereby incorporated by reference into this Sublease as if set forth in
full in this Sublease, except that (i) all references to "Landlord" in said
Section shall be deemed to refer to Sublandlord, all references to "Tenant" in
said Section shall be deemed to refer to Subtenant;(ii) all references to the
"Premises" in said Section shall be deemed to refer to the "Sublet Premises";
(iii) Subsections 21.3.1(i), (ii) shall be deemed to be modified by adding the
phrase "fifty percent (50%) of" before the phrase "all sums" and "the amount",
respectively , and (iv) (as between Subtenant and Sublandlord only, without
intending hereby to be binding upon the Landlord) Subsection 21.2.2 and
Subsections 21.2.3(4), (6) and (7) are expressly excluded from this Sublease.
9. INSURANCE. Subtenant shall maintain in full force and effect during the
Sublease Term insurance of such amounts and with such coverages as are required
to be maintained by Sublandlord as tenant under the Prime Lease. The provisions
of Section 12 of the Prime Lease are hereby incorporated by reference into this
Sublease as if set forth in full in this Sublease, except that all references to
"Landlord" in said Section shall be deemed to refer to each of the Landlord and
Sublandlord, all references to "Tenant" in said Section shall be deemed to refer
to Subtenant, and all references to the "Premises" in said Section shall be
deemed to refer to the "Sublet Premises". All certificates of insurance shall be
sent to Sublandlord at the address set forth in Paragraph 4.a above.
10. INDEMNIFICATION. The provisions of Section 20.1 of the Prime Lease are
hereby incorporated by reference into this Sublease as if set forth in full in
this Sublease, except that all
references to "Landlord" in said Section shall be deemed to refer to each of the
Landlord and Sublandlord, all references to "Tenant" in said Section shall be
deemed to refer to Subtenant, all references to the "Premises" in said Section
shall be deemed to refer to the "Sublet Premises", and all references to the
"Lease" in said Section shall be deemed to refer to each of the Prime Lease and
this Sublease. The provisions of Section 20.2 of the Prime Lease are hereby
incorporated by reference into this Sublease as if set forth in full in this
Sublease, except that all references to "Landlord" in said Section shall be
deemed to refer to Sublandlord, all references to "Tenant" in said Section shall
be deemed to refer to Subtenant, all references to the "Premises" in said
Section shall be deemed to refer to the "Sublet Premises", and all references to
the "Lease" in said Section shall be deemed to refer to this Sublease.
11. MAINTENANCE AND SERVICES. Subtenant hereby agrees that it is relying
directly on Landlord's obligations under the Prime Lease for all maintenance,
services and repairs to the Sublet Premises, including without limitation,
Sections 7.1 and 8.1 of the Prime Lease. If Landlord shall default in any of its
obligations to Sublandlord under the Prime Lease, Sublandlord shall cooperate
with Subtenant, upon request by Subtenant and at Subtenant's sole cost and
expense, in enforcing Sublandlord's rights against Landlord under the Prime
Lease.
12. PRIME LEASE.
a. INCORPORATION OF PRIME LEASE. Except as otherwise expressly provided
herein, the provisions of the Prime Lease are hereby incorporated by reference
into this Sublease, and Sublandlord grants to Subtenant, to share in common with
Sublandlord, all of Sublandlord's rights, benefits, and interests with respect
to the Sublet Premises, and Subtenant agrees to accept from Sublandlord and
hereby assumes all of Sublandlord's obligations and burdens under the Prime
Lease with respect to the Sublet Premises during the Sublease Term and such
further time, if any, as Subtenant is deemed to be holding over as provided in
Section 15 below, as if all of such rights and obligations were set forth herein
in their entirety, provided that the terms and conditions hereof shall be
controlling whenever the terms and conditions of the Prime Lease are
contradictory to or inconsistent with the terms and conditions hereof, and
provided further that those provisions of the Prime Lease which are protective
and for the benefit of the Landlord shall in this Sublease be deemed to be
protective and for the benefit of the Landlord and Sublandlord, that references
therein to "Landlord" and "Tenant" shall be deemed to refer to "Sublandlord" and
"Subtenant", respectively, that references therein to "this Lease" shall be
deemed to refer to "this Sublease," that references therein to the "Premises"
shall be deemed to refer to the "Sublet Premises," that references to the "Term"
shall be deemed to refer to the "Sublease Term," all as defined herein..
Notwithstanding the foregoing provisions of this subsection 12a, the terms,
covenants and conditions of the following Sections of the Prime Lease shall not
apply to nor be deemed incorporated by reference into, this Sublease, nor shall
Subtenant have any rights or obligations to Sublandlord or Landlord thereunder,
nor shall Landlord or Sublandlord have any obligations to Subtenant thereunder:
i. Section 1.3 (Lease Term); Section 1.4 (Commencement Date); Section
1.5 (Rent); Section 1.6 (Additional Rent); Section 1.8 (Rent Payment
Address); Article 3 (Security Deposit); Section 4.1 (Permitted Use);
Section 8.4 (Measurement of Tenant's Electrical Consumption); Section
16 (Acceptance of Premises); Subsection 21.2.2; Subsections 21.2.3(4),
(6) and (7); Section 25.2; Section 28 (Holdover); Section 33 (Brokers);
Section 34.1; Section 36 (Financial Statements) ; Section 51 (Extension
Option); Section 52 (Right of First Offer);
ii. All terms, covenants and conditions of the Prime Lease which
have been redacted from the copy of thereof attached hereto as
EXHIBIT B; and
iii. Exhibits C, D and H.
Subtenant represents that it has read and is familiar with the terms of
the Prime Lease, a copy of which (with certain terms not relevant to this
Sublease redacted) is attached hereto as EXHIBIT A.
b. PERFORMANCE OF PRIME LEASE. Subtenant covenants and agrees
faithfully to observe and perform during the Sublease Term and such further
time, if any, as Subtenant is deemed to be holding over as provided in Section
15 below, all of the terms, covenants and conditions of the Prime Lease on the
part of Sublandlord to be performed with respect to the portion of the Leased
Premises thereunder comprising the Sublet Premises, and neither to do nor cause
to be done, nor suffer nor permit any act or thing to be done, which would or
might cause the Prime Lease to be canceled, terminated, forfeited or
surrendered, or which would or might make Sublandlord liable for any damages,
claims or penalties. Except for the obligations of Subtenant hereunder,
Sublandlord covenants to observe, comply and perform all of the terms, covenants
and conditions of the Prime Lease to be observed and/or performed by
Sublandlord, and neither to do nor cause to be done any act or thing (other than
the exercise of Sublandlord's rights hereunder) which would or might cause the
Prime Lease or this Sublease or the rights of Subtenant hereunder to be
canceled, terminated, forfeited or surrendered or might make Subtenant liable
for any damages, claims or penalties. As of the execution date of this Sublease,
Sublandlord represents and warrants that (i) it has received no notice of
default from Landlord under the Prime Lease; (ii) there is no event or
circumstance that, with the giving of notice or the passage of time would
constitute a default under the Prime Lease; and (iii) it has paid all Base Rent
and Additional Rent, to the extent due, pursuant to the Prime Lease.
c. CONSENTS. Sublandlord shall not unreasonably withhold,
condition or delay any consent or approval requested by Subtenant under the
terms of this Sublease, provided, however, Sublandlord shall not be required to
give any consent required or permitted under the terms of this Sublease with
respect to any matter on which the Prime Lease requires the consent of Landlord
until it has first obtained the written consent of the Landlord with respect to
such matter. Upon written request by Subtenant, Sublandlord agrees to use
reasonable efforts (not involving any out-of-pocket expense by Sublandlord,
unless Subtenant agrees in advance to pay all such expenses) to obtain such
consent of the Landlord in a timely manner; provided, however, Subtenant shall
not be responsible of the payment of any of Landlord's expenses with respect to
obtaining Landlord's consent to this Sublease.
d. NO SUBLANDLORD OBLIGATION. Except as otherwise specifically
provided herein: (a) Sublandlord shall not have any obligation to construct,
maintain, alter, restore or repair the Sublet Premises, the Leased Premises, the
Building, or any parking area or other facility or improvement appurtenant
thereto or to provide Subtenant with any service of any kind or description
whatsoever, (b) Sublandlord shall not be deemed to have made any representation
or warranty made by Landlord in the Prime Lease, and shall not be liable to
Subtenant for any breach of any such representation or warranty, and (c)
Sublandlord shall not be responsible for the performance of Landlord's
obligations under the Prime Lease or be liable in damages or otherwise for any
negligence of Landlord or for any damage or injury suffered by Subtenant as a
result of any act or failure to act by Landlord or any default by Landlord in
fulfilling its obligations under the Prime Lease. Upon written request by
Subtenant, Sublandlord agrees to use reasonable efforts (not involving any
out-of-pocket expense by Sublandlord, unless Subtenant agrees in advance to pay
all such expenses) to cause Landlord to perform its obligations under the Prime
Lease in a timely manner. Subtenant and Sublandlord hereby waive all claims for
indirect, special or consequential damages against the other party arising out
of any breach or failure by the
defaulting party to perform or observe its respective requirements and
obligations created by this Sublease regardless of (i) the negligence (either
sole or concurrent) of either party, or (ii) whether either party has been
informed of the possibility of such damages. It is expressly understood and
agreed that damages payable by either party to Landlord shall be deemed to
constitute direct damages of such party.
e. TERMINATION. If the Prime Lease is terminated pursuant to
any provision of the Prime Lease or otherwise, (i) this Sublease shall terminate
simultaneously therewith, and (ii) any unearned rent paid in advance shall be
refunded to Subtenant unless such termination was the result of a breach by
Subtenant of any term, covenant or condition of this Sublease. Except for
termination rights of Sublandlord under the Articles 14 and 29 of the Prime
Lease, Sublandlord shall not voluntarily terminate the Prime Lease.
f. AMENDMENTS. Sublandlord shall provide to Subtenant copies
of all amendments to this Lease hereafter made by Sublandlord, within five (5)
days following the effectiveness of each such amendment. Notwithstanding
anything in this Sublease to the contrary, Subtenant shall not be subject to any
amendment or modification of the Prime Lease which reduces Subtenant's rights or
increases Subtenant's obligations hereunder, and Sublandlord hereby agrees that
it shall not so amend the Prime Lease.
13. NO ALTERATIONS. Subtenant shall make no alterations, additions or
improvements to the Sublet Premises or to any portion of the Building without on
each occasion first obtaining (i) the prior written consent of Sublandlord,
which consent shall not be unreasonably withheld (but shall in no event be
required to be given unless Landlord provides its prior written consent thereto
when Landlord's prior written consent is required by the terms of the Prime
Lease), and (ii) when required by the terms of the Prime Lease, the prior
written consent of the Landlord. All work shall be done in accordance with the
terms and conditions of the Prime Lease and all laws, by-laws, rules,
regulations, licenses and permits.
14. DEFAULTS AND REMEDIES. The provisions of Section 24.1 of the Prime
Lease are hereby incorporated by reference into this Sublease as if set forth in
full in this Sublease, except that:
a. all references to "Landlord" in said Section shall be
deemed to refer to Sublandlord, all references to "Tenant" in said Section shall
be deemed to refer to Subtenant, all references to the "Premises" in said
Section shall be deemed to refer to the Sublet Premises, and all references to
the "Lease" in said Section shall be deemed to refer to this Sublease;
b. Section 24.1.1 shall be deemed to be modified by
substituting the phrase "two (2) notices" for the phrase "four (4) notices"; and
c. Section 24.1.2 shall be deemed to be modified by
substituting the phrase "twenty-five (20) days" for the phrase "thirty (30)
days", and by substituting the phrase "seventy-five (75) days" for the phrase
"ninety (90) days".
Notwithstanding anything to the contrary contained in the Prime Lease
or in this Sublease, if the grace period for any non-monetary default provided
to Sublandlord as tenant under the Prime Lease is shorter than fifteen (15)
days, the length of Subtenant's grace period shall be one-half of Sublandlord's
grace period as tenant under the Prime Lease, but in no event shall such grace
period be less than five (5) days.
At any time after Subtenant is in default, Sublandlord may at its
option immediately or at any time thereafter exercise any one or more of the
remedies provided in the Prime Lease with respect to a
default by Sublandlord as tenant thereunder. The rights and remedies granted to
Sublandlord herein are cumulative and in addition to any others Sublandlord may
be entitled to at law or in equity.
In the event that Subtenant shall be in default hereunder, Subtenant
shall pay on demand all of Sublandlord's costs and expenses incurred in
connection with enforcement of this Sublease, including without limitation,
reasonable attorneys' fees and court costs.
15. HOLDING OVER. If Subtenant occupies the Sublet Premises after the
day on which the Sublease Term expires (or the effective date of any earlier
termination as herein provided) without having entered into a new sublease
thereof in writing with Sublandlord, Subtenant shall be a tenant-at-sufferance
only, subject to all of the terms and provisions of this Sublease at two (2)
times the then-effective Base Rent stated in Section 4a above. Such a holding
over, even if with the consent of Sublandlord, shall not constitute an extension
or renewal of this Sublease. For purposes of this Section, the failure of
Subtenant to complete by the last day of the Sublease Term (or the effective
date of any earlier termination as herein provided) the removal of its personal
property and the redelivery of the Sublet Premises to Sublandlord in accordance
with the provisions of Section 26 of the Prime Lease shall constitute a holding
over and subject Subtenant to the provisions of this Section. In addition,
Subtenant shall indemnify, defend and hold Sublandlord harmless from and against
any and all loss, cost or damages (including, without limitation, reasonable
attorneys' fees) which Sublandlord may suffer by reason of any holding over by
Subtenant.
16. NOTICES. All notices relating to this Sublease or the Sublet
Premises shall be in writing and addressed, if to Subtenant prior to the
Commencement Date to 00 Xxxxxxxxx Xxxxx Xxxx, Xxxxxxxxx, XX 00000, Attn: Chief
Financial Officer, and (ii) on and after the Commencement Date, to the Sublet
Premises, or to such other address as Subtenant shall designate in writing, in
either case with a copy to Xxxxx Xxxx LLP, 000 Xxxxxxx Xxxxxxxxx, World Trade
Center West, Boston, MA 02210, Attn: Xxxx X. Xxxxxx, Esq.; and if to
Sublandlord, to Sublandlord at 000 Xxxxxxxx Xxxxxx, Xxxxxxx, XX 00000, or to
such other address as Sublandlord shall designate in writing. No notice from
Subtenant to Landlord shall be effective as to Sublandlord unless and until
Subtenant delivers a copy of such notice in the manner set forth in this section
to Sublandlord. Any notice shall be deemed duly given when given in accordance
with the provisions of the Prime Lease. Sublandlord agrees to promptly give
Subtenant copies of all notices from Landlord with respect to the Sublet
Premises.
17. EFFECT. This Sublease sets forth the entire agreement of the parties
hereto with respect to the Sublet Premises and shall be binding upon the parties
hereto and their respective successors and assigns.
18. APPLICABLE LAW. This Sublease shall be governed by and construed in
accordance with the laws of the state in which the Sublet Premises are located.
19. NO MODIFICATION. Neither this Sublease nor any provision hereof may
be waived, modified, amended, discharged or terminated, except by an instrument
in writing signed by both parties.
20. SEVERABILITY. If any term or provision of this Sublease or the
application thereof to any person or circumstance shall to any extent be held
invalid or unenforceable, the remainder of this Sublease or the application of
such term or provision to other persons or circumstances 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.
21. NO WAIVER. No failure by Sublandlord or Subtenant to insist upon
the strict performance of any term hereof or to exercise any right, power or
remedy consequent upon a breach thereof, and no
acceptance of full or partial Rent by Sublandlord during the continuance of such
breach, shall constitute a waiver of any such breach or of any such term.
Sublandlord's consent in one instance hereunder shall not relieve Subtenant of
the requirement of obtaining Sublandlord's consent in any other instance.
22. BROKER. Sublandlord shall be responsible for paying the brokerage
commission due to Xxxxxxxx Xxxx Company and T3 Realty Advisors, LLC
(collectively, the "Broker") in connection with this Sublease. Subtenant and
Sublandlord each represents and warrants to the other that it has not dealt with
any broker or agent in connection with this Sublease other than the Broker, and
it shall indemnify, defend (with counsel reasonably satisfactory to the
indemnified party) and hold the other party hereto harmless from and against all
claims, liabilities, losses, damages, costs and expenses arising from a breach
of such representation and warranty.
23. MECHANICS' LIENS. Subtenant shall not cause or permit any liens for
labor or materials to attach to the Sublet Premises, the Building or the Land as
a result of any work performed by or on behalf of Subtenant, and shall
immediately discharge any such liens which may so attach.
24. FINANCIAL STATEMENTS; CONFIDENTIALITY. Subtenant shall provide updated
financial statements to Sublandlord on a quarterly basis no later than twenty
(20) business days after the end of each calendar quarter and annual audited
financial statements as soon as practicable after such annual audit has been
completed. Sublandlord shall keep Subtenant's financial statements and the
information contained therein confidential and shall not disclose the contents
of such financial statements without Subtenant's prior consent, except (i) to
the Prime Landlord, or (ii) to the extent such disclosure (a) is required or
permitted by the terms of the Prime Lease, or (b) is required by law, or (c) is
of a matter which has become public through no fault of Sublandlord.
25. SECURITY DEPOSIT. Within two (2) business days after Subtenant's
receipt of Landlord's consent to this Sublease or ten (10) days after the
execution of this Sublease, whichever is later, Subtenant shall deliver to
Sublandlord an irrevocable standby letter of credit (the "Letter of Credit") in
the amount of $342,982.50 (the "Security Deposit") as security for the punctual
performance of each and every obligation of Subtenant under this Sublease.
Failure to deliver the Letter of Credit as described in the preceding sentence
shall be deemed an automatic Event of Default without any requirement of notice
or cure. The Letter of Credit shall be (i) in form and substance satisfactory to
Sublandlord in its reasonable discretion; (ii) at all times in the amount of the
Security Deposit, and shall permit multiple draws; (iii) issued by a commercial
bank reasonably acceptable to Sublandlord from time to time; (iv) made payable
to, and expressly transferable and assignable at no charge to Sublandlord by,
the holder of Sublandlord's interest under this Sublease from time to time
(which transfer/assignment shall be conditioned only upon the execution by such
holder of a written document in connection with such transfer/assignment); (v)
payable at sight upon presentment to a branch of the issuer of a simple sight
draft signed by Sublandlord accompanied by a certificate stating that
Sublandlord is entitled to draw upon such Letter of Credit under the express
terms of this Sublease, and setting forth the amount that Sublandlord is
entitled to draw; (vi) for a term of not less than one (1) years; and (vii) at
least thirty (30) days prior to the then-current expiration date of such Letter
of Credit, renewed (or automatically and unconditionally extended) from time to
time through the sixtieth (60th) day after expiration of the Sublease Term.
Sublandlord hereby approves the form of Letter of Credit by Silicon Valley Bank
attached hereto as EXHIBIT C.
If Subtenant defaults (and such default continues beyond any applicable
notice and cure periods) with respect to any covenant or condition of this
Sublease, then Sublandlord may (without any waiver of Subtenant's default being
deemed to have occurred) draw upon the Letter of Credit and apply all or any
part of the proceeds thereof to the payment of any sum in default, or to satisfy
in part or in whole any
damages suffered by Sublandlord as a result of Subtenant's default. In the event
of such application, Subtenant shall promptly deposit with Sublandlord in the
form of an additional letter of credit the amount necessary to restore the
Security Deposit to the full amount set forth above. Notwithstanding anything in
this Sublease to the contrary, if Subtenant fails to comply with the
requirements of subsection (vii), above, Sublandlord shall have the immediate
right to draw upon the Letter of Credit in full and hold the proceeds thereof as
a cash security deposit hereunder. Any failure or refusal of the issuer to honor
the Letter of Credit shall be at Subtenant's sole risk.
Notwithstanding the foregoing to the contrary, Sublandlord shall be
entitled to draw upon the Letter of Credit prior to the expiration of any
applicable notice and grace periods afforded to Subtenant hereunder if the
Letter of Credit shall expire prior to the expiration of any such applicable
notice and grace periods. The parties expressly acknowledge and agree that the
Security Deposit is not an advance payment of Rent, nor a measure of
Sublandlord's damages in the event of any default by Subtenant.
If Subtenant shall fully and faithfully comply with all the terms,
provisions, covenants, and conditions of this Sublease, the Letter of Credit
shall be returned to Subtenant for cancellation within thirty (30) days after
all of the following have taken place: (a) expiration of the Sublease Term or
earlier termination of the Sublease; (b) removal of Subtenant's property from
the Sublet Premises; and (c) the surrender of the Sublet Premises and vacation
thereof by Subtenant to Sublandlord in accordance with this Sublease.
Sublandlord shall transfer the Letter of Credit to any transferee of
its interest under this Sublease, and thereafter such transferee shall be liable
for the return of the Letter of Credit, and Sublandlord shall be released from
all liability for the return thereof. Subtenant shall be solely responsible for
the payment of all costs associated with obtaining, replacing (as necessary),
transferring, extending and maintaining the Letter of Credit in accordance with
the terms of this Section.
Notwithstanding anything herein to the contrary, provided that
Subtenant is not in default under this Sublease as of the second (2nd)
anniversary of the Commencement Date, the amount of the Security Deposit shall
reduce to $228,655.00 effective as of the 2nd anniversary of the Commencement
Date, provided the Subtenant gives Sublandlord thirty (30) days written notice
of its intent to reduce the Security Deposit and Subtenant has a positive Cash
Flow of at least $3,500,000.00 for the fiscal year ending prior to the second
anniversary of the Commencement Date. Furthermore, provided that Subtenant is
not in default under this Sublease as of the fourth (4th) anniversary of the
Commencement Date, the amount of the Security Deposit shall reduce to
$114,327.50 effective as of the 4th anniversary of the Commencement Date,
provided the Subtenant gives Sublandlord thirty (30) days written notice of its
intent to reduce the Security Deposit and has a positive Cash Flow of at least
$3,500,000.00 for the fiscal year ending prior to the fourth anniversary of the
Commencement Date. Unless the Letter of Credit shall expressly provide for such
reductions without the necessity of amendments, such reductions shall be
accomplished by having Subtenant provide Sublandlord with a substitute letter of
credit in the reduced amount or an amendment to the existing Letter of Credit
which shall be subject to the requirements of this Section 25 of the Sublease,
unless the Security Deposit is in the form of cash, in which event, Sublandlord
shall return the reduced portion of the Security Deposit to Subtenant within
thirty (30) days following the applicable anniversary date. For purposes of this
Section 25, "Cash Flow" shall mean earnings before interest, taxes, depreciation
and amortization, as determined using generally accepted accounting principles.
26. CONSENT OF LANDLORD; COSTS. The effectiveness of this Sublease
shall be conditioned upon the receipt of written consent of the Landlord to this
Sublease in form and content acceptable to Sublandlord and Subtenant, in their
reasonable discretion. All costs and expenses charged by Landlord
to Sublandlord in connection with (i) its review and consent of this Sublease
shall be paid by Sublandlord, and (ii) its review of any plans, specifications
or other materials submitted by or on behalf of Subtenant to Sublandlord shall
be paid by Subtenant, in either case regardless of whether Landlord consents
thereto.
27. AUTHORITY. Sublandlord and Subtenant each hereby represents and
warrants to the other that (i) it has the full right and authority to enter into
this Sublease and (ii) the person executing this Sublease on its behalf has been
authorized to do so.
28. COUNTERPARTS. This Sublease may be executed in one or more
counterparts, each of which shall be an original instrument but all of which
together shall constitute one and the same instrument.
29. PERSONAL Liability. No personal liability shall at any time be asserted
or enforceable against Sublandlord's stockholders, officers or partners or their
respective heirs, legal representatives, successors and assigns on account of
the Sublease or on account of any covenant, undertaking or agreement of
Sublandlord in this Sublease.
(The next page is the signature page)
IN WITNESS WHEREOF, this Sublease has been executed under seal as of
the date first written above.
Sublandlord:
MCK COMMUNICATIONS, INC.
By: /s/ Xxxxxx X. XxXxxxxx
--------------------------
Name: Xxxxxx X. XxXxxxxx
Title: Chief Finanical Officer
Subtenant:
UPROMISE, INC.
By: /s/ Xxxx Xxxxxx
---------------------------
Name: Xxxx Xxxxxx
Title: Chief Financial Officer
EXHIBIT A TO SUBLEASE
PRIME LEASE
[copy attached]
EXHIBIT B TO SUBLEASE
PLAN OF SUBLET PREMISES
[copy attached]
This exhibit contains a floor plan of the subleased premises.
EXHIBIT C TO SUBLEASE
STANDBY LETTER OF CREDIT DRAFT
IRREVOCABLE STANDBY LETTER OF CREDIT NO. SVB02ISXXXX
DATE: JUNE 18, 2002
BENEFICIARY:
MCK COMMUNICATIONS, INC.
000 XXXXXXXX XXXXXX
XXXXXXX, XX 00000
AS "SUBLESSOR"
APPLICANT:
UPROMISE, INC.
00 XXXXXXXXX XXXXX XXXX
XXXXXXXXX, XX 00000
AS "SUBLESSEE"
AMOUNT: US$342,982.50 (THREE HUNDRED FORTY TWO THOUSAND NINE HUNDRED EIGHTY TWO
AND 50/100 U.S. DOLLARS)
EXPIRATION DATE: JUNE __, 2003
LOCATION: AT OUR COUNTERS IN SANTA CLARA, CALIFORNIA
DEAR SIR/MADAM:
WE HEREBY ESTABLISH OUR IRREVOCABLE STANDBY LETTER OF CREDIT NO. SVB02ISXXXX IN
YOUR FAVOR AVAILABLE BY YOUR DRAFT DRAWN ON US AT SIGHT IN THE FORM OF EXHIBIT
"B" ATTACHED AND ACCOMPANIED BY THE FOLLOWING DOCUMENTS:
1. THE ORIGINAL OF THIS LETTER OF CREDIT AND ALL AMENDMENT(S), IF ANY.
2. A DATED CERTIFICATION FROM THE BENEFICIARY SIGNED BY AN AUTHORIZED
OFFICER, FOLLOWED BY ITS DESIGNATED TITLE, STATING THE FOLLOWING:
(A) "THE AMOUNT REPRESENTS FUNDS DUE AND OWING TO US AS A RESULT OF THE
APPLICANT'S FAILURE TO COMPLY WITH ONE OR MORE OF THE TERMS OF THAT
CERTAIN SUBLEASE BY AND BETWEEN BENEFICIARY, AS SUBLESSOR, AND
APPLICANT, AS SUBLESSEE."
OR
(B) "WE HEREBY CERTIFY THAT WE HAVE RECEIVED NOTICE FROM SILICON VALLEY
BANK THAT LETTER OF CREDIT NO. SVB02ISXXXX WILL NOT BE RENEWED, AND
THAT WE HAVE NOT RECEIVED A REPLACEMENT OF THIS LETTER OF CREDIT FROM
APPLICANT SATISFACTORY TO US AT LEAST THIRTY (30) DAYS PRIOR TO THE
EXPIRATION DATE OF THIS LETTER OF CREDIT."
THE SUBLEASE AGREEMENT MENTIONED ABOVE IS FOR IDENTIFICATION PURPOSES ONLY AND
IT IS NOT INTENDED THAT SAID SUBLEASE AGREEMENT BE INCORPORATED HEREIN OR FORM
PART OF THIS LETTER OF CREDIT.
PARTIAL DRAWS ARE ALLOWED. THIS LETTER OF CREDIT MUST ACCOMPANY ANY DRAWINGS
HEREUNDER FOR ENDORSEMENT OF THE DRAWING AMOUNT AND WILL BE RETURNED TO THE
BENEFICIARY UNLESS IT IS FULLY UTILIZED.
PAGE 1 OF 3
IRREVOCABLE STANDBY LETTER OF CREDIT NO. SVB02ISXXXX
DATED JUNE 18, 2002
THIS LETTER OF CREDIT SHALL BE AUTOMATICALLY EXTENDED FOR AN ADDITIONAL PERIOD
OF ONE YEAR, WITHOUT AMENDMENT, FROM THE PRESENT OR EACH FUTURE EXPIRATION DATE
UNLESS AT LEAST SIXTY (60) DAYS PRIOR TO THE THEN CURRENT EXPIRATION DATE WE
NOTIFY YOU AND THE APPLICANT BY REGISTERED MAIL/OVERNIGHT COURIER SERVICE AT THE
ABOVE ADDRESSES THAT THIS LETTER OF CREDIT WILL NOT BE EXTENDED BEYOND THE
CURRENT EXPIRATION DATE. IN NO EVENT SHALL THIS LETTER OF CREDIT BE
AUTOMATICALLY EXTENDED BEYOND JUNE 27, 2007.
THE AMOUNT OF THIS LETTER OF CREDIT SHALL BE DECREASED WITHOUT AMENDMENT(S) TO
THE NEW AGGREGATE AMOUNT(S) ON THE FOLLOWING DATES, PROVIDED THAT (1)
BENEFICIARY HAS NOT PROVIDED US WITH WRITTEN NOTICE THAT SUBTENANT IS IN DEFAULT
UNDER THE SUBLEASE, WHICH MUST BE SENT TO US AT SILICON VALLEY BANK,
INTERNATIONAL BANKING DIVISION, MAIL SORT NC411, 0000 XXXXXX XXXXX, XXXXX XXXXX,
XX 00000, ATTENTION: LETTERS OF CREDIT DEPARTMENT BY FEDEX OR OTHER OVERNIGHT
COURIER SERVICE, MENTIONING THE ABOVE REFERENCED LETTER OF CREDIT, ON OR BEFORE
THE DATE WHICH IS TEN (10) DAYS PRIOR TO THE EFFECTIVE DATE OF ANY REDUCTION, AS
SET FORTH BELOW AND (2) NO DRAWING HAS OCCURRED HEREIN:
EFFECTIVE DATE(S) NEW AGGREGATE AMOUNT(S)
AUGUST 1, 2004 $228,655.00
AUGUST 1, 2006 $114,327.50
THIS LETTER OF CREDIT MAY ONLY BE TRANSFERRED IN ITS ENTIRETY BY THE ISSUING
BANK TO ANY SUCCESSOR SUBLANDLORD UNDER THE SUBLEASE UPON OUR RECEIPT OF THE
ATTACHED "EXHIBIT A" DULY COMPLETED AND EXECUTED BY THE BENEFICIARY AND
ACCOMPANIED BY THE ORIGINAL LETTER OF CREDIT AND ALL AMENDMENTS, IF ANY, WITH
THE PAYMENT OF OUR TRANSFER FEE OF 1/4 OF 1% OF THE TRANSFER AMOUNT (MINIMUM
USD250.00).
ALL DEMANDS FOR PAYMENT SHALL BE MADE BY PRESENTATION OF THE ORIGINAL
APPROPRIATE DOCUMENTS PRIOR TO 10:00 A.M. CALIFORNIA TIME, ON A BUSINESS DAY AT
OUR OFFICE (THE "BANK'S OFFICE") AT: SILICON VALLEY BANK, 0000 XXXXXX XXXXX
XXXXX XXXXX, XX 00000, ATTENTION: STANDBY LETTER OF CREDIT NEGOTIATION SECTION
OR BY FACSIMILE TRANSMISSION AT: (000) 000-0000 OR (000) 000-0000; AND
SIMULTANEOUSLY UNDER TELEPHONE ADVICE TO: (000) 000-0000 OR (000) 000-0000),
ATTENTION: STANDBY LETTER OF CREDIT NEGOTIATION SECTION WITH ORIGINALS TO FOLLOW
BY OVERNIGHT COURIER SERVICE; PROVIDED, HOWEVER, THE BANK WILL DETERMINE HONOR
OR DISHONOR ON THE BASIS OF PRESENTATION BY FACSIMILE ALONE, AND WILL NOT
EXAMINE THE ORIGINALS.
PAYMENT AGAINST CONFORMING PRESENTATIONS HEREUNDER SHALL BE MADE BY BANK DURING
NORMAL BUSINESS HOURS OF THE BANK'S OFFICE WITHIN TWO (2) BUSINESS DAYS AFTER
PRESENTATION.
THIS LETTER OF CREDIT SETS FORTH IN FULL THE TERMS OF OUR UNDERTAKING AND SUCH
UNDERTAKING SHALL NOT IN ANY WAY BE MODIFIED, AMENDED, AMPLIFIED OR LIMITED BY
REFERENCE TO ANY DOCUMENT, INSTRUMENT OR AGREEMENT REFERRED TO HEREIN, OR TO
WHICH THIS LETTER OF CREDIT RELATES, AND ANY SUCH REFERENCE SHALL NOT BE DEEMED
TO INCORPORATE HEREIN BY REFERENCE ANY SUCH DOCUMENT, INSTRUMENT OR AGREEMENT.
PAGE 2 OF 3
IRREVOCABLE STANDBY LETTER OF CREDIT NO. SVB02ISXXXX
DATED JUNE 18, 2002
DRAFT(S) AND DOCUMENTS MUST INDICATE THE NUMBER AND DATE OF THIS LETTER OF
CREDIT.
WE HEREBY AGREE WITH THE DRAWERS, ENDORSERS AND BONAFIDE HOLDERS THAT THE DRAFTS
DRAWN UNDER AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS LETTER OF
CREDIT SHALL BE DULY HONORED UPON PRESENTATION TO THE DRAWEE, IF NEGOTIATED ON
OR BEFORE THE EXPIRATION DATE OF THIS CREDIT.
THIS LETTER OF CREDIT IS SUBJECT TO THE UNIFORM CUSTOMS AND PRACTICE FOR
DOCUMENTARY CREDITS (1993 REVISION), INTERNATIONAL CHAMBER OF COMMERCE,
PUBLICATION NO. 500.
--------------------------- ---------------------------
AUTHORIZED SIGNATURE AUTHORIZED SIGNATURE
PAGE 3 0F 3
EXHIBIT "A"
DATE:
TO: SILICON VALLEY BANK
0000 XXXXXX XXXXX RE: STANDBY LETTER OF CREDIT
XXXXX XXXXX, XX 00000 NO. ISSUED BY
ATTN:INTERNATIONAL DIVISION. SILICON VALLEY BANK, SANTA XXXXX
STANDBY LETTERS OF CREDIT L/C AMOUNT:
GENTLEMEN:
FOR VALUE RECEIVED, THE UNDERSIGNED BENEFICIARY HEREBY IRREVOCABLY TRANSFERS TO:
(NAME OF TRANSFEREE)
(ADDRESS)
ALL RIGHTS OF THE UNDERSIGNED BENEFICIARY TO DRAW UNDER THE ABOVE LETTER OF
CREDIT UP TO ITS AVAILABLE AMOUNT AS SHOWN ABOVE AS OF THE DATE OF THIS
TRANSFER.
BY THIS TRANSFER, ALL RIGHTS OF THE UNDERSIGNED BENEFICIARY IN SUCH LETTER OF
CREDIT ARE TRANSFERRED TO THE TRANSFEREE. TRANSFEREE SHALL HAVE THE SOLE RIGHTS
AS BENEFICIARY THEREOF, INCLUDING SOLE RIGHTS RELATING TO ANY AMENDMENTS,
WHETHER INCREASES OR EXTENSIONS OR OTHER AMENDMENTS, AND WHETHER NOW EXISTING OR
HEREAFTER MADE. ALL AMENDMENTS ARE TO BE ADVISED DIRECT TO THE TRANSFEREE
WITHOUT NECESSITY OF ANY CONSENT OF OR NOTICE TO THE UNDERSIGNED BENEFICIARY.
THE ORIGINAL OF SUCH LETTER OF CREDIT IS RETURNED HEREWITH, AND WE ASK YOU TO
ENDORSE THE TRANSFER ON THE REVERSE THEREOF, AND FORWARD IT DIRECTLY TO THE
TRANSFEREE WITH YOUR CUSTOMARY NOTICE OF TRANSFER.
SINCERELY,
-----------------------------
(BENEFICIARY'S NAME)
-----------------------------
SIGNATURE OF BENEFICIARY
SIGNATURE AUTHENTICATED
----------------------------
(NAME OF BANK)
----------------------------
AUTHORIZED SIGNATURE
EXHIBIT "B"
================================================================================
DATE: _______________ REF. NO. ___________________
AT SIGHT OF THIS DRAFT
PAY TO THE ORDER OF ___________________________ US$_________________
USDOLLARS __________________________________________________________
____________________________________________________________________
DRAWN UNDER SILICON VALLEY BANK, SANTA CLARA, CALIFORNIA, STANDBY
LETTER OF CREDIT NUMBER NO. ________________ DATED _________________
TO: SILICON VALLEY BANK
0000 XXXXXX XXXXX _______________________________
XXXXX XXXXX, XX 00000 (BENEFICIARY'S NAME)
...............................
AUTHORIZED SIGNATURE
================================================================================
GUIDELINES TO PREPARE THE DRAFT
1. DATE: ISSUANCE DATE OF DRAFT.
2. REF. NO.: BENEFICIARY'S REFERENCE NUMBER, IF ANY.
3. PAY TO THE ORDER OF: NAME OF BENEFICIARY AS INDICATED IN THE L/C (MAKE
SURE BENEFICIARY ENDORSES IT ON THE REVERSE SIDE).
4. US$: AMOUNT OF DRAWING IN FIGURES.
5. USDOLLARS: AMOUNT OF DRAWING IN WORDS.
6. LETTER OF CREDIT NUMBER: SILICON VALLEY BANK'S STANDBY L/C NUMBER THAT
PERTAINS TO THE DRAWING.
7. DATED: ISSUANCE DATE OF THE STANDBY L/C.
8. BENEFICIARY'S NAME: NAME OF BENEFICIARY AS INDICATED IN THE L/C.
9. AUTHORIZED SIGNATURE: SIGNED BY AN AUTHORIZED SIGNER OF BENEFICIARY.
IF YOU NEED FURTHER ASSISTANCE IN COMPLETING THIS DRAFT, PLEASE CALL OUR L/C
PAYMENT SECTION AND ASK FOR:
XXXXX XX XXX: 000-000-0000
XXXXX XXXXXXXXX: 000-000-0000
EXHIBIT D TO SUBLEASE
FURNITURE INVENTORY
