Exhibit 10.25
SUBLEASE
--------
THIS SUBLEASE ("Sublease") is dated for references purposes only as of
September 1, 1999, and is made by and between CENTURA SOFTWARE CORPORATION, a
California corporation ("Sublessor"), and XXXXXXXXXX.XXX INC., a Connecticut
corporation ("Sublessee"). Sublessor and Sublessee hereby agree as follows:
1. Recitals: This Sublease is made with reference to the fact that Westport
--------
Joint Venture, formerly known as Westport Investments, a California general
partnership ("Master Lessor"), as Landlord, and Sublessor, as Tenant, entered
that certain lease dated as of October 14, 1996, as amended by that certain
Amendment No. 1 to Lease, dated as of January 12, 1998 (collectively, the
"Master Lease") with respect to that improved real property containing a
two-story building consisting of approximately 48,384 rentable square feet
("Building"), commonly known as 000 Xxxxxx Xxxxx, Xxxxxxx Xxxx, Xxxxxxxxxx 00000
("Premises"), as more particularly described in the Master Lease. A copy of the
Master Lease is attached hereto as Exhibit "A" and incorporated by reference
herein. Approximately 23,472 square feet of the Premises is currently subleased
to Nextel of California, Inc. ("Nextel") pursuant to a Sublease dated July 20,
1998 ("Nextel Sublease"). In order to accommodate Nextel's desire to
sub-sublease a portion of its premises, Sublessor has agreed to enter into a
direct sublease with Sublessee for the portion of the premises which Nextel is
relinquishing, with Nextel continuing to sublease the remaining portion of its
premises pursuant to the Nextel Sublease, as amended by First Amendment to
Sublease of even date herewith ("First Amendment").
2. Premises: Sublessor hereby subleases to Sublessee, and Sublessee hereby
--------
subleases from Sublessor, a portion of the Premises, located on the second floor
of the Building, consisting of approximately twelve thousand (12,000) rentable
square feet ("Subleased Premises"). The parties acknowledge that the Subleased
Premises does not include Sublessor's QA lab, which consists of approximately
720 rentable square feet and is located adjacent to the Subleased Premises. The
Subleased Premises consists of that portion of the Premises that is being
relinquished by Nextel pursuant to the First Amendment to Sublease. Because
Nextel and Sublessee have not yet agreed with specificity as to the exact amount
of rentable space to be relinquished by Nextel, and, in turn, taken by
Sublessee, Sublessor and Sublessee agree that an Addendum to Sublease, in the
form attached hereto, shall be entered into when Nextel and Sublessee have so
agreed. Until the Addendum is executed by Sublessor and Sublessee, Sublessee
shall continue making all rental and other payments due hereunder on the basis
of 12,000 square feet of rentable space. In the event that Subleased Premises
are agreed to be less than 12,000 square feet of rentable space, Sublessee shall
not be entitled to any refund or reimbursement from Sublessor for any sums paid
or owing by Sublessee pursuant to this Sublease on the basis of the square
footage of the Subleased Premises, including Monthly Base Rent or Additional
Rent, for any period prior to the effective date of the Addendum to Sublease. In
all events, and irrespective of what Nextel and Sublessee agree, the total
rentable square footage of the Subleased Premises and Nextel's premises under
the Nextel Sublease (as amended) shall equal 23,472 rentable square feet, and
Sublessor shall not be bound by any agreement between Sublessee and Nextel to
the contrary.
3. Term:
A. Term. The term of this Sublease ("Term") shall be for that period
----
consisting of approximately three (3) years, commencing on the date that the
Master Lessor consents to this Sublease ("Commencement Date"), and ending on
August 31, 2002 ("Expiration Date"), unless this Sublease is sooner terminated
pursuant to its terms or the Master Lease is sooner terminated pursuant to its
terms.
B. No Option to Extend. The parties acknowledge that Sublessee has no
-------------------
option to extend the Term of this Sublease.
C. Early Possession. If Sublessor permits Sublessee to occupy the
----------------
Subleased Premises prior to the Commencement Date, such occupancy (i) shall be
subject to all of the provisions of this Sublease and (ii) shall not advance the
termination date of this Sublease.
4. Rent:
----
A. Monthly Base Rent. Sublessee shall pay to Sublessor as Bent Rent for
-----------------
the Subleased Premises equal monthly installments as follows:
Months Base Rent
------ ---------
Month 1 (September 1, 1999 - $2.90 per rentable square foot,
September 30, 1999) or Thirty-Four Thousand Eight
Hundred and No/100 Dollars
($34,800.00) per month
During the remainder of the Term, the Monthly Base Rent payable hereunder
shall be increased annually on October 1st of each calendar year during the Term
by an amount equal to the increase in the Consumer Price Index published
immediately before the adjustment date in question over the Consumer Price Index
published immediately before the prior adjustment date (or, immediately before
the Commencement Date, as appropriate). In no event will the increase in Monthly
Base Rent as a result of the adjustment set forth herein be more than six
percent (6%) per year. The term "Consumer Price Index" shall refer to the
Consumer Price Index, All Urban Consumers, subgroup "All Items", for the San
Francisco-Oakland-San Xxxx metropolitan area (Base Year, 1982-84 = 100), which
is presently being published monthly by the United States Department of Labor,
Bureau of Labor Statistics. However, if the Consumer Price Index is changed so
that the Base Year is altered from that used as of the Commencement Date, or if
the methodology currently used to determine the Consumer Price Index is
materially changed, in Sublessor's reasonable determination, then the Consumer
Price Index shall be converted in accordance with the conversion factor
published by the United States Department of Labor, Bureau of Labor Statistics,
to obtain the same results that would have been obtained had such change not
occurred. If no conversion factor is available, or if the Consumer Price Index
is otherwise changed, revised or discontinued for any reason, there shall be
substituted in lieu thereof, and the term "Consumer Price Index" shall
thereafter refer to, the most nearly comparable official price index of the
United States government in order to obtain substantially the same result as
would have been obtained had the original Consumer Price
-2-
Index not been discontinued, revised or changed, which alternative index shall
be selected by Sublessor in its reasonable discretion. In no event shall Monthly
Base Rent decrease on any adjustment date or be less than Monthly Base Rent for
the calendar month immediately preceding the month in which Monthly Base Rent is
adjusted in accordance with the foregoing provisions.
As used herein, "month" shall mean a period beginning on the first (1st)
day of a calendar month and ending on the last day of that month. Monthly Base
Rent shall be paid on or before the first (1st) day of each month. Rent (as
defined in Paragraph 4.B. below) for any period during the Sublease Term hereof
which is for less than one month of the Sublease Term shall be a prorata portion
of the monthly installment based on a 30-day month. Rent shall be payable
without notice or demand and without any deduction, offset, or abatement, in
lawful money of the United States of America. The Rent shall be paid directly to
Sublessor at 000 Xxxxxx Xxxxx, Xxxxxxx Xxxxxx, Xxxxxxxxxx 00000, Attn: Chief
Financial Officer, or such address as may be designated in writing by Sublessor.
B. Additional Rent. In addition to Monthly Base Rent, Sublessee shall
---------------
pay to Sublessor Sublessee's percentage share ("Percentage Share", as defined
below) of any amounts payable by Sublessor to Master Lessor pursuant to the
Master Lease, including, without limitation, Additional Rent (consisting of
Taxes, insurance premiums, expenses and charges) as defined in Section 4.D. of
the Master Lease. Sublessee's "Percentage Share" shall be twenty-four and eight
tenths - percent (24.8%), which Percentage Shares was determined by dividing the
total rentable area of the Subleased Premises by the total rentable area of the
Premises. Sublessee also shall pay to Sublessor as additional rent, within five
(5) days after receipt of Sublessor's invoices therefor, Sublessee's Percentage
Share of Sublessor's costs for water, gas, electricity, sewer, waste pick-up and
any other utilities serving the Subleased Premises. Sublessee shall be
responsible for payment of its own janitorial service and telephone,
telecommunications and data communications charges. All monies required to be
paid by Sublessee under this Sublease (except for Monthly Base Rent, as defined
in Paragraph 4.A. above) shall be deemed additional rent ("Additional Rent").
Monthly Base Rent and Additional Rent hereinafter collectively shall be referred
to as "Rent." Sublessee and Sublessor agree, as a material part of the
consideration given by Sublessee to Sublessor for this Sublease, that Sublessee
shall pay Sublessee's Percentage Share of all costs, expenses, taxes, insurance,
maintenance and other charges of every kind and nature arising out of this
Sublease or the Master Lease in connection with the Subleased Premises, such
that Sublessor shall receive, as a net consideration for this Sublease, the
Monthly Base Rent payable under Paragraph 4.A. hereof.
C. Payment of First Month's Rent. Upon the execution of this Sublease by
-----------------------------
Sublessee and Sublessor and the execution of Master Lessor's consent to this
Sublease, Sublessee shall pay to Sublessor the sum of Thirty-Four Thousand Eight
Hundred and No/100 Dollars ($34,800.00), which shall constitute Monthly Base
Rent for the first month of the Term. In the event the Commencement Date is
other than the first day of the month, Sublessor shall credit any excess rent
paid for the first month of the Term, if any, toward the Base Rent owing for the
second month of the Term in accordance with the proration formula set forth in
paragraph 4.A. above.
D. Acknowledgment. As between Sublessor and Sublessee, and
--------------
notwithstanding anything to the contrary contained in Article 4 of the Master
Lease, Sublessee's obligations with
-3-
respect to the payment of Rent under this Sublease shall be limited to the
obligations set forth in this Paragraph 4.
5. Security Deposit: Upon execution of this Sublease by Sublessee,
----------------
Sublessee shall deposit with Sublessor the sum of Sixty-Nine Thousand Six
Hundred and No/100 Dollars ($69,600.00), referred to herein as the "Security
Deposit." The Security Deposit shall be held by Sublessor as security for the
performance of Sublessee's obligations under this Sublease. Sublessor may (but
shall have no obligation to) use the Security Deposit or any portion thereof to
cure any breach or default by Sublessee under this Sublease, to fulfill any of
Sublessee's obligations under the Sublease, or to compensate Sublessor for any
damage it incurs as a result of Sublessee's failure to perform any of
Sublessee's obligations hereunder. In such event, Sublessee shall pay to
Sublessor on demand an amount sufficient to replenish the Security Deposit to
the full amount required under this Sublease. If at the expiration or
termination of this Sublease, Sublessee is not in default, has otherwise fully
performed all of Sublessee's obligations under this Sublease, and after
Sublessee has vacated the Subleased Premises, then within thirty (30) days
following the expiration or termination of this Sublease Sublessor shall return
to Sublessee the Security Deposit or the balance thereof then held by Sublessor
and not applied as provided above. Sublessor may commingle the Security Deposit
with Sublessor's general and other funds. Sublessor shall not be required to pay
interest on the Security Deposit to Sublessee. Provided that Sublessee has not
been in default hereunder at any time prior to the first day of the thirteenth
(13th) calendar month of the Sublease Term, Sublessor shall credit the sum of
Thirty-Four Thousand Eight Hundred and No/100 Dollars ($34,800.00) from the
Security Deposit to Monthly Base Rent owing for said thirteenth (13th) calendar
month of the Sublease Term.
6. Late Charge: If Sublessee fails to pay Sublessor any amount due
-----------
hereunder within five (5) days after the due date, Sublessee shall pay to
Sublessor upon written demand a late charge equal to ten percent (10%) of the
delinquent amount. In addition, Sublessee shall pay to Sublessor interest on all
amounts due, at the rate of ten percent (10%) per annum or the maximum rate
allowed by law, whichever is less (the "Interest Rate"), from the due date to
and including the date of the payment. The parties agree that the foregoing late
charge represents a reasonable estimate of the cost and expense which Sublessor
will incur in processing each delinquent payment. Sublessor's acceptance of any
interest or late charge shall not waive Sublessee's default in failing to pay
the delinquent amount.
7. Repairs: Sublessor shall deliver the Subleased Premises to Sublessee in
-------
its "as-is," broom clean condition, except that (i) the building systems and
sub-systems serving the Subleased Premises shall be in good working condition on
the Commencement Date; and (ii) the restrooms serving the Premises and the
Subleased Premises were in compliance with all applicable building codes,
including the Americans with Disabilities Act of 1990 ("ADA") in effect on
September 22, 1998. Except as set forth in this Paragraph, Sublessee shall
accept the Subleased Premises in its then-existing, "as is" condition, and, so
long as the building systems and sub-systems serving the Subleased Premises are
in the condition required by the preceding sentence on the Commencement Date and
the restrooms were in the condition required by the preceding sentence on
September 22, 1998, after the Commencement Date Sublessor shall have no
obligation whatsoever to make or pay the cost of any alterations, improvements
or repairs to the Subleased Premises, including, without limitation, any
improvement or repair required to comply with any law, regulation, building code
or ordinance
-4-
(including, without limitation, the ADA). Sublessee shall look solely to the
Master Lessor for performance of any repairs required to be performed by Master
Lessor under the terms of the Master Lease.
8. Indemnity:
---------
A. Sublessee's Indemnification. Except to the extent caused by
---------------------------
Sublessor's negligence or willful misconduct, Sublessee shall indemnify,
protect, defend with counsel reasonably acceptable to Sublessor and hold
harmless Sublessor from and against any and all claims, liabilities, judgment,
causes of action, damages, costs and expenses (including reasonable attorneys'
and experts' fees), caused by or arising in connection with: (i) the use,
occupancy or condition of the Subleased Premises, or (ii) the negligence or
willful misconduct of Sublessee or its employees, contractors, agents, or
invitees, or (iii) a breach of Sublessee's obligations under this Sublease; or
(iv) a breach of Sublessee's obligations under the Master Lease; or (iv) any
Hazardous Material (as defined in Section 50 of the Master Lease) used, stored,
released, disposed, generated or transported by Sublessee, its agents,
employees, contractors or invitees in, on or about the Premises and the
Subleased Premises.
B. Sublessor's Indemnification. Except to the extent caused by
---------------------------
Sublessee's negligence or willful misconduct, Sublessor shall indemnify,
protect, defend with counsel reasonably acceptable to Sublessee and hold
Sublessee harmless from and against any and all claims, liabilities, judgments,
causes of action, damages, costs, and expenses (including reasonable attorneys'
and experts' fees), caused by or arising in connection with: (i) a breach of
Sublessor's obligations under this Sublease; or (ii) a breach of Sublessor's
obligations as Tenant under the Master Lease to the extent those obligations are
not assumed by Sublessee under this Sublease; or (iii) the negligence or willful
misconduct of Sublessor, its employees, contractors, agents or invites occurring
on or about the Subleased Premises; or (iv) Hazardous Materials used, stored or
disposed of by Sublessor in, on or about the Premises and the Subleased
Premises.
The foregoing indemnifications shall survive the expiration or earlier
termination of this Sublease.
9. Right to Cure Defaults. If Sublessee fails to pay any sum of money to
----------------------
Sublessor, or fails to perform any other act on its part to be performed
hereunder, then Sublessor may, but shall not be obligated to, upon two (2) days'
prior notice to Sublessee, make such payment or perform such act. All such sums
paid, and all costs and expenses of performing any such act, shall be deemed
Additional Rent payable by Sublessee to Sublessor upon demand, together with
interest thereon at the Interest Rate from the date of the expenditure until
repaid.
10. Assignment and Subletting:
-------------------------
A. Conditions to Assignment and Subletting. Except in accordance with
---------------------------------------
the terms of Sections 19 and 49 of the Master Lease, Sublessee may not assign
this Sublease, sublet the Subleased Premises, transfer any interest of Sublessee
therein, or permit any use of the Subleased Premises by another party
("Transfer"), and Sublessee shall obtain the prior written consent of Sublessor,
which shall not be unreasonably withheld, and Master Lessor to any proposed
Transfer. Sublessee acknowledges that Sublessor shall have the right, as set
forth in Section 19 of the Master
-5-
Lease, to terminate this Sublease as to all or any portion of the Subleased
Premises described in any request by Sublessee for a consent to Transfer. A
consent to one Transfer shall not be deemed to be a consent to any subsequent
Transfer. Any Transfer without such consent shall be void and shall, at the
option of Sublessor, terminate this Sublease. As a condition of granting its
consent to any assignment or subletting, Sublessor may require that Sublessee
pay to Sublessor, as Additional Rent, fifty percent (50%) of all Excess Rents
received by Sublessee. As used herein, the term "Excess Rents" shall mean all
Rents and other consideration payable by a subtenant or assignee to Sublessee in
connection with the Transfer, less the cost incurred by Sublessee as set forth
in Section 49.A. of the Master Lease. Sublessor's waiver or consent to any
assignment or subletting shall be ineffective unless set forth in writing, and
Sublessee shall not be relieved from any of its obligations under this Sublease,
unless the consent expressly so provides. Notwithstanding anything to the
contrary contained in this Sublease or in the Master Lease, Sublessee, without
obtaining Sublessor's prior written consent, shall have the right to Transfer
this Sublease to a parent, subsidiary or affiliate of Sublessee (collectively,
"Affiliate"), whether by merger, succession or consolidation, or a joint venture
or partnership in which Sublessee, or its Affiliate, is a general partner;
provided, however, that nothing in this sentence shall be deemed to relieve
Sublessee of the obligation to obtain Master Lessor's consent pursuant to the
provisions of Sections 19 and 49 of the Master Lease.
B. Disclosure Required by Master Lease. Sublessee acknowledges
-----------------------------------
and shall be bound by the following, which is included in this Sublease pursuant
to the provisions of Section 49.C. of the Master Lease:
"If Landlord and Tenant jointly and voluntarily elect, for any reason
whatsoever, to terminate the Master Lease prior to the scheduled Master
Lease termination date, then this Sublease (if then still in effect)
shall terminate concurrently with the termination of the Master Lease.
Subtenant expressly acknowledges and agrees that (1) the voluntary
termination of the Master Lease by Landlord and Tenant and the resulting
termination of this Sublease shall not give Subtenant any right or power
to make any legal or equitable claim against Landlord, including,
without limitation, any claim for interference with contract or
interference with prospective economic advantage, and (2) Subtenant
hereby waives any and all rights it may have under law or at equity
against Landlord to challenge such an early termination of the Sublease,
and unconditionally releases and relieves Landlord, and its officers,
directors, employees and agents from any and all claims, demands and/or
causes of action whatsoever (collectively, "Claims"), whether such
matters are known or unknown, latent or apparent, suspected or
unsuspected, foreseeable or unforeseeable, which Subtenant may have
arising out of or in connection with any such early termination of this
Sublease. Subtenant knowingly and intentionally waives any and all
protection which is or may be given by Section 1542 of the California
Civil Code which provides as follows: 'A general release does not extend
to claims which the creditor does not know or suspect to exist in his
favor at the time of executing the release, which is known by him must
have materially affected his settlement with debtor.'
The terms of this Sublease are therefore subject to early termination.
Subtenant's initials here below evidence (a) Subtenant's consideration
of and agreement to this early termination provisions, (b) Subtenant's
acknowledgment that, in determining the
-6-
net benefits to be derived by Subtenant under the terms of this
Sublease, Subtenant has anticipated the potential for early termination,
and (c) Subtenant's agreement to the general waiver and release of
Claims above."
Initials: ____________________ ____________________
Sublessee Sublessor
Notwithstanding anything to the contrary contained in this Sublease or the
Master Lease, Sublessor shall not jointly and voluntarily elect to terminate the
Master Lease prior to the scheduled Master Lease termination date, and Sublessor
shall indemnify, protect, defend and hold Sublessee harmless from and against
any and all actual, direct and foreseeable (but not punitive) claims,
liabilities, judgments, causes of action, damages, costs, and expenses
(including actual but reasonable moving costs and any reasonable increase in
rent per square foot required to be paid by Sublessee for substantially similar
replacement premises [limited in size to the square footage of the Subleased
Premises, and located in the geographical vicinity of the Subleased Premises],
and reasonable attorneys' and experts' fees), caused by or arising in connection
with such voluntary termination. The foregoing shall not apply to the "Tenant's"
right to terminate in the event of destruction, pursuant to Section 24 of the
Master Lease, or the "Tenant's" right to terminate in the event of eminent
domain, pursuant to Section 25 of the Master Lease, but Sublessor shall not
exercise its rights to terminate the Master Lease in such events without the
prior written consent of Sublessee, which shall not be unreasonably withheld or
delayed.
11. Use: Sublessee may use the Subleased Premises only for the uses
---
permitted in Section 1 of the Master Lease and for no other purpose without the
prior written consent of Master Lessor. Notwithstanding the foregoing, Sublessee
also may use the Subleased Premises for business purposes related to the
operation of an internet company and for no other purposes. With respect to
Hazardous Materials as defined in Section 50.A. of the Master Lease, Sublessor
shall comply with the provisions of Section 50 of the Master Lease. Upon demand,
Sublessee shall pay to Sublessor all taxes or charges imposed by applicable
governmental authorities against the Subleased Premises or Sublessor (including,
without limitation, assessments imposed as a consequence of the occurrence,
storage, use or disposal of Hazardous Materials by Sublessee, its agents,
employees, contractors or invitees in or about the Subleased Premises).
Sublessee shall not do or permit anything to be done in or about the Subleased
Premises which would (i) injure the Subleased Premises, or (ii) vibrate, shake,
overload, or impair the efficient operation of the Subleased Premises or the
sprinkler systems, heating ventilating or air conditioning equipment, or
utilities systems located therein. Subject to Paragraph 29 of this Sublease,
Sublessee shall not store any materials, supplies, finished or unfinished
products, or articles of any nature outside of the Subleased Premises. Sublessee
shall comply with all reasonable rules and regulations promulgated from time to
time by Master Lessor.
12. Effect of Conveyance: As used in this Sublease, the term
--------------------
"Sublessor" means the holder of the lessee's interest under the Master Lease. In
the event of any transfer of said Lessee's interest, the Sublessor shall be and
hereby is entirely relieved of all covenants and obligations of the Sublessor
hereunder, and it shall be deemed and construed, without further agreement
between the parties, that the transferee has assumed and shall carry out all
covenants and obligations thereafter to be performed by Sublessor hereunder.
Sublessor shall transfer and deliver any security of
-7-
Sublessee to the transferee of said lessee's interest in the Master Lease, and
thereupon the Sublessor shall be discharged from any further liability with
respect thereto.
13. Delivery and Acceptance: If Sublessor is unable to deliver possession
-----------------------
of the Subleased Premises to Sublessee on or before the Commencement Date for
any reason whatsoever, then this Sublease shall not be void or voidable, nor
shall Sublessor be liable to Sublessee for any loss or damage; provided,
however, in such event, Rent shall xxxxx until Sublessor delivers possession of
the Subleased Premises to Sublessee. The foregoing notwithstanding, if for any
reason Sublessor cannot deliver possession of the Subleased Premises by October
15, 1999, or if the Master Lessor fails to consent to this Sublease by such
date, then Sublessee shall have the right to terminate this Sublease. By taking
possession of the Subleased Premises, Sublessee shall conclusively be deemed to
have accepted the Subleased Premises in their as-is, then-existing condition,
subject to the provisions of Paragraph 7 hereof.
14. Improvements. No alteration of improvements shall be made to the
------------
Subleased Premises except in accordance with this Sublease and the Master Lease,
and with the prior written consent of both Master Lessor and Sublessor, with
Sublessor's consent not to be unreasonably withheld. Notwithstanding the
foregoing, Sublessee shall have the right to make alterations costing less than
Fifty Thousand and No/100 Dollars ($50,000.00), cumulatively, in any year of the
Term which do not affect the structure, roof, building systems or sub-systems or
exterior of the Building without obtaining Sublessor's prior consent; provided,
however, that nothing in this sentence shall be deemed to relieve Sublessee of
the obligation to obtain Master Lessor's consent pursuant to the provisions of
Section 9 the Master Lease. Upon the expiration or earlier termination of this
Sublease, Sublessee shall be responsible for removing any alterations or
improvements installed in the Subleased Premises by Sublessee unless Master
Lessor notifies Sublessee in writing that such alterations or improvements may
remain.
15. Waiver of Subrogation and Release: Sublessor and Sublessee hereby
---------------------------------
release each other from any injury to persons, damage to property, or loss of
any kind which is caused by or results from any risk insured against under any
valid and collectable insurance policy carried by either party, which contains a
waiver of subrogation by the insurer; provided, however, that such liability
shall be released only to the extent that the damages are covered by such
insurance, and only if the insurance permits such partial release. This release
shall be in effect only so long as the applicable insurance policy contains a
clause to the effect that this release shall not affect the right of the insured
to recover under such policy. Each party shall use its best efforts to cause
each insurance policy obtained by it to provide that the insurer waives all
right of recovery against the other party and its agents and employees in
connection with any damage or injury covered by such policy, and each party
shall notify the other party if it is unable to obtain such a waiver of
subrogation Sublessor shall not be liable to Sublessee, nor shall Sublessee be
entitled to terminate this Sublease or to xxxxx Rent, for any reason, including,
without limitation: (i) failure or interruption of any utility system or
service; or (ii) failure of Master Lessor to maintain the Subleased Premises as
may be required under the Master Lease. Notwithstanding the foregoing to the
contrary, to the extent that basic rent or additional rent is abated for
Sublessor with respect to the Subleased Premises pursuant to the terms of the
Master Lease, Sublessee's Rent obligations with respect t the Subleased Premises
also shall be abated. Sublessor and Sublessee are corporations, and the
obligations of Sublessor and Sublessee
-8-
shall not constitute the personal obligations of the officers, directors,
trustees, partners, joint venturers, members, owners, stockholders or other
principals or representatives of such corporations.
16. Default: Sublessee's performance of each of its obligations under
-------
this Sublease constitutes a condition as well as a covenant, and Sublessee's
right to continue in possession of the Subleased Premises is conditioned upon
such performance. In addition, Sublessee shall be in material default of its
obligations under this Sublease if Sublessee is responsible for the occurrence
of any of the events of default set forth in Section 22 of the Master Lease.
17. Remedies: In the event of any default by Sublessee under this
--------
Sublease including, without limitation, a default pursuant to Section 22 of the
Master Lease), Sublessor shall have all remedies provided by applicable law,
including, without limitation, all rights pursuant to Section 22 of the Master
Lease and under California Civil Code Sections 1951.2 and 1951.4. Sublessor may
resort to its remedies cumulatively or in the alternative.
18. Surrender: On or before the Expiration Date, Sublessee shall remove
---------
all of its trade fixtures and all alterations and improvements made by Sublessee
to the Subleased Premises which the Master Lessor requires to be removed,
subject to the provisions of Paragraph 14, and shall surrender the Subleased
Premises to Sublessor in the condition required by Section 8 of the Master
Lease, free of Hazardous Materials stored, used or disposed of by Sublessee. If
the Subleased Premises are not so surrendered, then Sublessee shall be liable to
Sublessor for all costs incurred by Sublessor in returning the Subleased
Premises to the required condition, plus interest thereon at the Interest Rate.
Sublessee shall indemnify, defend, protect and hold harmless Sublessor against
any and all direct, actual and foreseeable (but not punitive) claims,
liabilities, judgments, causes of action, damages, costs and expenses (including
attorneys' and experts' fees) resulting from Sublessee's delay in surrendering
the Subleased Premises, including, without limitation, any claim made by any
succeeding tenant founded on or resulting from such failure to surrender,
limited, however, to the actual damages incurred by Sublessor pursuant to
Article 8 of the Master Lease as a result of Sublessee's delay in surrender.
19. Brokers: Sublessee represents to Sublessor that it has dealt with
-------
no real estate brokers, finders, agents or salesmen in connection with this
transaction, except BT Commercial Real Estate and Sublessee agrees to pay any
commission owing to BT Commercial. Because the Master Lessor does not permit
sub-subleases, Sublessor and Sublessee acknowledge that Nextel Communications,
Inc. which occupied the Subleased Premises prior to the hereof under a sublease,
engaged The Staubach Company to find a subtenant for the Subleased Premises.
Neither Sublessor nor Sublessee are responsible for any commission or fee owing
to The Staubach Company or BT Commercial Real Estate, which commission is to be
paid by Nextel. Sublessee agrees to hold Sublessor harmless from and against all
claims for brokerage commissions, finder's fees, or other compensation made by
any agent, broker, salesman or finder other than The Staubach Company and BT
Commercial as a consequence of its actions or dealings with such agent, broker,
salesman, or finder.
20. Notices: Unless five (5) days' prior written notice is given in the
-------
manner set forth in this Paragraph, the address of the Sublessor for all
purposes connected with this Sublease shall be at
-9-
000 Xxxxxx Xxxxx, Xxxxxxx Xxxx, XX 00000, Attention: CFO, and the address of the
Sublessee shall be as follows:
(i) at the Subleased Premises c/o Xxxx X. Xxxxxxx
(ii)
xxxxxxxxxx.xxx Inc.
Xxx Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxxxx XxXxxxxxx, General Counsel
Facsimile No.: (000) 000-0000
(iii) With a copy to: Xxxxxx, Xxxxx & Xxxxx LLP
0000 Xxxx 0xx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Xxxxxx Xxxxx, Jr., Esq.
Facsimile No.: (000) 000-0000
All notices, demands, or communications in connection with this Sublease shall
be considered received when (i) personally delivered, or (ii) if properly
addressed and either sent by nationally recognized overnight courier or
deposited in the mail (registered or certified, return receipt for acceptance or
rejection. All notices given to the Master Lessor under the Master Lease shall
be considered received only when delivered in accordance with the Master Lease
to all parties hereto at the addresses set forth below their signatures at the
end of this Sublease and to Master Lessor at the address set forth in the Master
Lease.
21. Severability: If any term of this Sublease is held to be invalid or
------------
unenforceable by any court of competent jurisdiction, then the remainder of this
Sublease shall remain in full force and effect to the fullest extent possible
under the law, and shall not be affected or impaired.
22. Amendment: This Sublease may not be amended except by the written
---------
agreement of all parties hereto.
23. Attorney's Fees: If either party brings any action or legal
---------------
proceeding with respect to this Sublease, the prevailing party shall be entitled
to recover reasonable attorneys' fees, experts' fees, and court costs.
Notwithstanding the foregoing and in addition thereto, Sublessor shall be
entitled to immediate receipt from Sublessee, for each breach hereof, of such
reasonable attorneys' fees as may be incurred in connection with each notice or
demand delivered to Sublessee. Sublessee agrees that such sum constitutes
reimbursement to Sublessor of the reasonable cost of the preparation and
delivery of each notice caused by Sublessee's breach.
24. Other Sublease Terms:
--------------------
A. Incorporation By Reference. The terms and conditions of this
--------------------------
Sublease shall include various Sections of the Master Lease, which are
incorporated into this Sublease as if fully set forth, except that: (i) each
reference in such incorporated Sections to "Lease" shall be deemed a reference
to "Sublease"; (ii) each reference to the "Premises" shall be deemed a reference
to the
-10-
"Subleased Premises"; (iii) each reference to "Landlord" and "Tenant" shall be
deemed a reference to "Sublessor" and "Sublessee", respectively; (iv) with
respect to work, services, repairs, restoration, provision of insurance or the
performance of any other obligation of Master Lessor under the Master Lease, the
sole obligation of Sublessor shall be to request the same in writing from Master
Lessor as and when requested to do so by Sublessee, and to use Sublessor's
diligent good faith efforts (without requiring Sublessor to spend more than a
nominal sum) to obtain the Master Lessor's performance; (v) with respect to any
obligation of Sublessee to be performed under this Sublease, whenever the Master
Lease grants to Sublessor a specified number of days to perform its obligations
under the Lease, Sublessee shall have (3) fewer days to perform the obligation,
including, without limitation, curing any defaults (provided, however, that the
foregoing reduction of time to cure shall not apply to cure periods for the
payment of Base Rent or Additional Rent); and (vi) with respect to any approval
required to be obtained from the "Landlord" under the Master Lease, such consent
must be obtained from both the Master Lessor and the Sublessor and the approval
of Sublessor may be withheld, if the Master Lessor's consent is not obtained.
The following paragraphs of the Master Lease are hereby incorporated into
this Sublease:
The last two sentences of the "Witnesseth" recital;
---------------------------------------------------
Section 1;
----------
Section 4.D. and 4.E, except that the reference to "Landlord" in
--------------------
parenthetical (ii) in the second sentence of Section 4.D. shall mean only Master
Lessor;
Section 5, except that references to "Landlord" in this Section shall mean
---------
only Master Lessor;
Section 6, except that (i) the references to "218" parking spaces shall
---------
mean only Master Lessor;
Section 7, except that the words "calculated on a square footage or other
---------
equitable basis as calculated by Landlord" in the second and third lines of this
Section hereby are deleted;
Section 8, except that the first and second sentences of this Section
---------
hereby are deleted;
Sections 9 through 14;
---------------------
Section 15, except that references to "Landlord" in the first paragraph of
----------
this Section shall mean only Master Lessor;
Section 16 through 19;
---------------------
Section 20, except that references to "Landlord" in this Section shall mean
----------
only Master Lessor;
Sections 21 through 23, except that the reference to "Landlord" in the last
----------------------
sentence of Section 21 shall mean only Master Lessor;
-11-
Sections 24 and 25, except that (i) references to "Landlord" in these
------------------
Sections shall mean only Master Lessor, and (ii) Sublessee may exercise the
termination rights set forth in these Sections only with the prior written
consent of Sublessor, which shall not be unreasonably withheld or delayed;
Sections 26 through 31, except that references to "Landlord" in Section 27
----------------------
shall mean only Master Lessor;
Sections 33 through 37, except that although the Landlord's address shall
----------------------
be as set forth in this Section, the addresses for Sublessor and Sublessee shall
be as set forth in Paragraph 20 of this Sublease;
Section 39 and 40, except that (i) the references to "Landlord" in Section
-----------------
39 shall mean only Master Lessor;
Section 45 through 49;
---------------------
Section 50, except that references to "Landlord" in Section 50.F and 50.G.
----------
shall mean only Master Lessor;
Section 52, except that the reference to "100%" in the last sentence of
----------
this Section shall be replaced with "24.8%";
Section 53-55, except that (i) references to "Landlord" in the first
-------------
sentence of Section 55 shall mean only master Lessor; and (ii) the reference to
"$48,384" shall be replaced with "$12,000.00";
Sections 57 through 59, except that references to "Landlord" in Section 58
----------------------
shall mean only Master Lessor;
Section 61; and
----------
Recitals and Section 2 of Amendment No. 1 to Lease.
---------------------------------------------------
B. Assumption of Obligations: This Sublease is and all times shall be
-------------------------
subject and subordinate to the Master Lease and the rights of Master Lessor
thereunder. Sublessee hereby expressly assumes and agrees: (i) to comply with
all provisions of the Master Lease with respect to the Subleased Premises; (ii)
to perform all the obligations on the part of the "Tenant" to be performed under
the terms of the Master Lease with respect to the Subleased Premises during the
term of this Sublease; and (iii) to hold Sublessor free and harmless of and from
all liability, judgments, costs, damages, claims, demands, and expenses
(including reasonable attorneys' and experts' fees) arising out of Sublessee's
failure to comply with or to perform Sublessee's obligations hereunder or the
obligations of the "Tenant" under the Master Lease as herein provided or to act
or omit to act in any manner which will constitute a breach of the Master Lease.
25. Condition Precedent: This Sublease and Sublessor's and Sublessee's
-------------------
obligations hereunder are conditioned upon obtaining the written consent of the
Master Lessor and the execution of the First Amendment by Nextel. If the
foregoing conditions precedent have not been satisfied
-12-
within sixty (60) days after the latest of the dates of execution of this
Sublease by Sublessor and Sublessee, then either Sublessor or Sublessee may
terminate this Sublease by giving the other written notice, and Sublessor shall
return to Sublessee all sums paid to Sublessor in connection with Sublessee's
execution hereof.
26. Signage: Subject to the provisions of the Master Lease, Sublessee,
-------
at its sole cost, shall be entitled to (a) use the bottom one-third (1/3) of the
signage for the Premises, which consists of a small monument sign in front of
the Building, and (b) to place its company logo and name on the second floor
wall facing the Building lobby in a size no larger than Sublessor's sign which
is located behind the receptionist desk on the first floor of the Building.
27. Furniture: During the Term Sublessee shall have the right to lease
---------
Sublessor's cubicles and conference room furniture located in the Premises
(collectively, "Furniture"). Sublessee shall pay to Sublessor as Additional Rent
the sum of One Thousand and No/100 Dollars ($1,000.00) per month for the use of
the Furniture. Sublessee shall use the Furniture in its as-is condition, without
warranty from Sublessor of any kind, and shall return the Furniture to Sublessor
upon the expiration or earlier termination of this Sublease in the condition
received, ordinary wear and tear excepted. Sublessor shall have no obligation to
repair or replace the Furniture.
28. Hazardous Materials: Sublessee acknowledges and agrees to be bound
-------------------
by the provisions of Section 50 of the Master Lease regarding Hazardous
Materials. Sublessee further acknowledges receipt from Sublessor of the
documentation referenced in Section 50.F. of the Master Lease, and that it has
read and understood the contents thereof. To the extent that Sublessor is
indemnified by the Master Lessor in accordance with the provisions of Section
50.G. of the Master Lease, Sublessee shall be the beneficiary of such
indemnification.
29. Waiver of Lien Rights: Sublessor hereby waives any lien rights
---------------------
which it may have against Sublessee's furniture, fixtures and equipment which
may be located at the Subleased Premises (collectively, "Sublessee's Property")
and disclaims any interest therein. Sublessor further agrees that Sublessee's
Property shall be exempt from execution, foreclosure, sale, levy, attachment or
distress for any rent due or to become due hereunder. Subject to the provisions
of Section 22 of the Master Lease, Sublessor agrees that Sublessor shall have no
interest in Sublessee's Property and that Sublessee may remove Sublessee's
Property from the Subleased Premises at any time.
30. Guaranty: Upon its execution of this Sublease, Sublease shall
--------
deliver to Sublessor the Guaranty, attached hereto as Exhibit "B" and
-----------
incorporated by reference herein, executed by its parent corporation,
Information Management Associates, Inc., a Connecticut corporation.
-13-
IN WITNESS WHEREOF, the parties have executed this Sublease on the day and
year first above written.
SUBLESSEE: SUBLESSOR:
XXXXXXXXXX.XXX INC., CENTURA SOFTWARE CORPORATION,
a Connecticut corporation a California corporation
By: _____________________________ By: ____________________________
Its: _____________________________ Its: ____________________________
-14-
EXHIBIT "A"
-----------
MASTER LEASE
[to be attached]
-15-
