EXHIBIT 10.16
SUBLEASE
1. PARTIES. This Sublease, dated, for reference purpose only, October 29,
1993, is made by and between XXX XXXXXX INCORPORATED (hereinafter "Sublandlord")
and TRANSPHERE INTERNATIONAL INC. (hereinafter "Subtenant").
2. PREMISES. Sublandlord hereby subleases to Subtenant and Subtenant
hereby subleases from Sublandlord for the term, at the rental, and upon all of
the conditions set forth herein, the following described premises situated in
the City of Xxx Xxxxxxxxx, Xxxxxx xx Xxx Xxxxxxxxx, Xxxxx xx Xxxxxxxxxx,
commonly known as 000 Xxxxx Xxxxxx and described as a portion of the 2nd Floor
which is approximately ten thousand five hundred and twenty (10,520) rentable
square feet, (hereinafter "Sublease Premises") in its entirety as defined by the
Master Lease (defined below).
3. TERM.
3.1 The term ("Term") of this Sublease shall be for a period of
forty-eight and one half (48.5) months commencing on December 15,1993, and
ending on December 31, 1997, unless sooner terminated pursuant to any provision
hereof, or of the Master Lease.
3.2 Notwithstanding said commencement date, if for any reason
Sublandlord cannot deliver possession of the Sublease Premises to Subtenant on
said date, Sublandlord shall not be subject to any liability therefore but in
such case Subtenant shall not be obligated to pay rent until possession of the
Sublease Premises is tendered to Subtenant; provided, however, that if
Sublandlord shall not have delivered possession of the Sublease Premises within
ninety (90) days from said commencement date, Subtenant may, at Subtenant's
option, by notice in writing to Sublandlord within ten (10) days after such
ninety (90) day period, cancel this Sublease, in which event the parties shall
be discharged from all obligations hereunder. If this Sublease is canceled as
herein provided, Sublandlord shall return any monies previously deposited by
Subtenant with Sublandlord.
3.3 In the event Subtenant, with Sublandlord's prior written
consent, takes possession and occupies any portion of the Sublease Premises
prior to the commencement of the term, such occupancy shall be subject to all of
the provisions of this Sublease, shall not advance the termination date of this
Sublease, and Subtenant shall pay rent to Sublandlord in advance of such early
possession for the period commencing with Subtenant's first day of possession
and ending with the commencement of the term at the same rental as that
prescribed for the sixth (6th) month of the term, prorated at the rate of 1/30th
thereof per day.
4. RENT.
4.1 MINIMUM RENT. Subtenant shall pay to Sublandlord, as minimum
rent ("Minimum Rent") without deduction, setoff, offset, notice, or demand, at
000 Xxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx, or at such other place as
Sublandlord shall designate from time to time by notice to Subtenant, the
following:
Months 1-5 $0.00 (free rent period)
Months 6-12 $15,249.79 each month
Months 13-24 $16,564.79 each month
Months 25-36 $16,915.11 each month
Months 37-48 $17,235.97 each month
Month 48.5 (December 15,1997) $ 8,617.98 partial month
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in advance on the first day of each month of the Term (which day, for purposes
of this Sublease, shall be the fifteenth (15th) day of each month). Subtenant
shall pay to Sublandlord upon execution of this Sublease the sum of thirty-four
thousand one hundred fifty-one Dollars and eight Cents ($34,151.08) as "Prepaid
Minimum Rent". Such Prepaid Minimum rent shall not bear interest. One month of
Prepaid Minimum Rent in the amount of $16,915.11 shall be applied by Sublandlord
towards the payment of one (1) month's Minimum Rent during the period of the
"25th through the 36th" month. The remainder, the sum of $17,235.97 shall be
applied by Sublandlord towards the payment of one (1) month's Minimum Rent
during the period of the "37th through the 48th" month. Subtenant shall have the
right to choose the specific month within each period to which the Prepaid
Minimum Rent shall be applied after prior written notice to Sublandlord. Prior
written notice shall be given at least thirty (30) days in advance. If Subtenant
does not notify Sublandlord as provided herein, Sublandlord shall apply the
Prepaid Minimum Rent to the 36th month and the 48th month respectively.
Furthermore, in the event of Default (defined below) by Subtenant prior to the
application by Sublandlord of the first payment of Prepaid Minimum Rent, the
first one (1) month Prepaid Minimum Rent amount referenced above shall become
part of the Security Deposit, except no interest shall be earned by Subtenant or
payable by Sublandlord, and none of such first payment of Prepaid Minimum Rent
shall be available for application by Subtenant towards the payment of Minimum
Rent. In the event of a second Default by Subtenant prior to the payment to
Sublandlord of the second payment of Prepaid Minimum Rent, the second Prepaid
Minimum Rent amount shall also become part of the Security Deposit, except no
interest shall be earned and payable thereon, and none of such second payment of
Prepaid Minimum Rent shall be available for application by Subtenant to the
payment of Minimum Rent. For the purposes of determining whether any Prepaid
Minimum Rent shall become a part of the Security Deposit only, the term
"Default" shall be defined as Subtenant's failure to pay any Minimum Rent and
Additional Rent due to Sublandlord within five (5) days after said sums are due
and payable ("late Payment") for a fourth (4th) time during any twelve (12)
month period over the term of this Sublease. For purposes of determining when
Sublandlord may add the second amount of Prepaid Minimum Rent to the Security
Deposit, the fifth (5th) time a late Payment occurs, Sublandlord shall have the
right to add the second Prepaid Minimum Rent amount to the Security Deposit.
Sublandlord shall notify Subtenant of each occurrence of Default.
4.2 ADDITIONAL RENT. Commencing January 1, 1995, Subtenant shall pay
to Sublandlord, as "Additional Rent", any and all Operating Expenses (as defined
in the Master lease) to be paid by Sublandlord to Landlord which exceed the
Operating Expenses paid by Sublandlord under the terms of the Master Lease for
the "Lease Year", as defined in the Master Lease, of 1994 ("Base Operating
Expenses"). Minimum Rent and Additional Rent are sometimes collectively referred
to herein as "Rent" and all amounts payable or reimbursable by Subtenant to
Sublandlord under this Sublease, including any late charges or liquidated damage
amounts, shall constitute "Rent" and shall he payable and recoverable as Rent.
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4.3 NOTICE AND PAYMENT. As soon as reasonably practicable after
Sublandlord's receipt from Landlord of the Estimated Increased Operating
Expenses (as defined in the Master Lease) for the calendar year 1995 and for
each calendar year thereafter (e.g., 1996 and 1997), Sublandlord shall notify
Subtenant of any increases in Operating Expenses over Base Operating Expenses
(as defined in this Sublease) as estimated by Landlord for each such calendar
year. Sublandlord shall provide to Subtenant copies of Landlord's estimates and
statements as delivered to Sublandlord by Landlord. Commencing on the fifteenth
(15th) day of January 1995 and on the fifteenth (15th) day of every month
thereafter through and including December 15, 1997, Subtenant shall pay to
Sublandlord, as Additional Rent, one-twelfth (1/12) of Tenant's Share of the
Estimated Increased Operating Expenses (as defined in the Master lease);
provided, however, on the fifteenth (15th) day of January 1995, Subtenant shall
pay an amount equal to one-eighth (1/8) of Tenants Share of the Estimated
Increased Operating Expenses for the calendar year 1995 and, on the fifteenth
(15th) day of December 1997, Subtenant shall pay an amount equal to one twenty-
fourth (1/24) of Tenant's Share of the Estimated Increased Operating Expenses
for the calendar year 1997. Subject to the terms of this Paragraph 4.3 and
Paragraphs 7.6 and 4.2 of this Sublease, the Master lease shall control with
respect to the payment of Operating Expenses.
4.4 LATE PAYMENT CHARGES AND INTERESTS. Any payment of Rent or other
amounts from Subtenant to Sublandlord in this Sublease which is not paid on the
date due shall accrue interest from the date due until the date paid at a rate
equal to ten percent (10%) per annum; provided, however, in the event Subtenant
pays Rent and or any other sums due within five (5) days after the date due no
interest shall: be payable by Subtenant; provided further, however, that if a
court of competent jurisdiction determines the above rate exceeds the highest
lawful rate of interest, then at the maximum rate permitted by law. If any
installment of Minimum Rent and/or Additional Rent is not paid promptly on the
first of the month (which day, for purposes of this Sublease, shall be the
fifteenth (15th) day of each month), or otherwise when due, Sublessee shall pay
to Sublessor a late payment charge equal to five percent (5%) of the amount of
such delinquent payment, in addition to the installment of Minimum Rent and/or
Additional Rent then owing; provided, however, in the event Subtenant pays Rent
and or any other sums due within five (5) days after the date due no late
payment charge shall be payable by Subtenant. This Section 4 shall not relieve
Subtenant of Subtenant's obligation to pay any amount owing hereunder at the
time and in the manner provided.
5. LIQUIDATED DAMAGES. BY PLACING THEIR INITIALS IMMEDIATELY BELOW,
SUBTENANT AGREES THAT IT WOULD BE IMPRACTICABLE OR EXTREMELY DIFFICULT TO FIX
ACTUAL DAMAGES AND COSTS SUSTAINED BY SUBLANDLORD DUE TO THE FAILURE OF
SUBTENANT TO MAKE TIMELY PAYMENTS OF RENT, THAT THE AMOUNT SPECIFIED ABOVE IS
THE PARTIES REASONABLE ESTIMATE BY SUBTENANT AND SUBLANDLORD OF A FAIR AVERAGE
COMPENSATION FOR SUBLANDLORD'S DAMAGES AND COSTS IN THE EVENT OF SUBTENANT'S
DEFAULT IN EACH INSTANCE BY LATE PAYMENT OF AMOUNTS OWED HEREUNDER.
SUBTENANT'S INITIALS _____
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6. SECURITY DEPOSIT. Subtenant shall deposit with Sublandlord upon
execution hereof the sum twenty-nine thousand eight hundred six Dollars
($29,806.67) as security for Subtenant's faithful performance of Subtenant's
obligations hereunder. If Subtenant fails to pay Minimum Rent or Additional Rent
or other charges due hereunder, or otherwise defaults with respect to any
provision of this Sublease, Sublandlord may use, apply or retain all or any
portion of said deposit for the payment of any Rent or other charge in default
or for the payment of any other sum to which Sublandlord may become obligated by
reason of Subtenant's default, or to compensate Sublandlord for any loss or
damage which Sublandlord may suffer thereby. If Sublandlord so uses or applies
all or any portion of said deposit, Subtenant shall within ten (10) days after
written demand therefor, deposit cash with Sublandlord in an amount sufficient
to restore said deposit to the full amount hereinabove stated and Subtenant's
failure to do so shall be a breach of this Sublease, and Sublandlord may at its
option terminate this Sublease. Sublandlord shall not be required to keep said
deposit separate from its general accounts. If Subtenant performs all of
Subtenant's obligations hereunder, said deposit, or so much thereof as had not
theretofore been applied by Sublandlord, shall be returned to Subtenant (or, at
Sublandlord's option, to the last assignee, if any, of Subtenant's interest
hereunder) within thirty (30) days after the expiration of the term hereof, or
after Subtenant has vacated the Premises, whichever is later. The Security
Deposit shall be interest bearing, at an interest rate equal to a minimum of two
percent (2%) per annum but no greater than the rate offered by Bank of America
NT & SA on deposits which may be withdrawn at any time without payment of
penalty or premium during the Term hereof. Interest earned shall be payable to
Subtenant from Sublandlord within thirty (30) days after the expiration of each
lease year. Sublandlord, at Sublandlord's option, may apply earned interest due
to Subtenant, as a credit to Minimum Rent or Additional Rent due herein.
7. USE.
7.1 The Premises shall be used and occupied only for general office
purposes and for no other purpose without the prior written consent of
Sublandlord and Landlord, which consent may be withheld in Landlord's and
Sublandlord's respective sole discretion.
7.2 Except as provided in this Sublease (and specifically not the
Master lease), Sublandlord makes no representations or warranties with respect
to the Sublease Premises. Subtenant shall, at Subtenant's sole expense, comply
promptly with all applicable statutes, ordinances, rules, regulations, orders,
restrictions of record, and requirements in effect during the term hereof
regulating the use of the Sublease Premises.
7.3 Subtenant hereby accepts the Sublease Premises in its "as is"
condition existing as of the date of the execution hereof, excepting Sublandlord
shall shampoo the carpets prior to Subtenant's occupancy of the Sublease
Premises. Sublandlord shall also deliver the Sublease Premises in broom clean
condition without any furniture, and personal contents. As of the date of this
Sublease, Subtenant acknowledges that Subtenant shall have conducted Subtenant's
own investigation of the Sublease Premises and the physical condition thereof,
including accessibility and location of utilities, improvements, existence of
hazardous materials, including but not limited to asbestos, asbestos containing
materials, polychlorinated biphenyls (PCB) and earthquake preparedness, which in
Subtenant's judgment affect or influence Subtenant's use of the Sublease
Premises and Subtenant's willingness to enter this Sublease. Subtenant
recognizes that Sublandlord would not sublease the Sublet Space except on an "as
is" basis and acknowledges that Sublandlord has made no representations of any
kind in connection with improvements or physical conditions on, or bearing on,
the use of the Sublease Premises. Subtenant shall rely solely on Subtenant's own
inspection and examination of such items and not
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on any representations of Sublandlord, express or implied. Subtenant further
recognizes and agrees that neither Sublandlord nor Landlord shall be required to
perform any work of construction, alteration or maintenance of or to the
Sublease Premises, except as provided herein. Subtenant represents and warrants
to Sublandlord that Subtenant shall examine and inspect all matters with respect
to taxes, income and expense data, insurance costs, bonds, permissible uses, the
Master Lease, zoning, covenants, conditions and restrictions and all other
matters which in Subtenant's judgment bear upon the value and suitability of the
Sublease Premises for Subtenant's purposes.
7.4 Subtenant acknowledges that neither Sublandlord nor
Sublandlord's agents have made any representation or warranty as to the
suitability of the Sublease Premises for the conduct of Subtenant's business.
8. MASTER LEASE.
8.1 This Sublease is subject and subordinate to the Master Lease
between 470 Spear Associates, a California limited partnership ("Landlord") and
Sublandlord, as successor in interest to offices Unlimited of California, Inc.,
dated September 29, 1987 designated as Exhibit "A" ("Master Lease"). Subtenant
shall not commit or permit to be committed on the Sublease Premises any act or
omission which shall violate any term or condition of the Master Lease.
8.2 Subtenant shall assume and perform the obligations of
Sublandlord or Tenant in said Master Lease, to the extent said terms and
conditions are applicable to the Sublease Premises subleased pursuant to this
Sublease. Therefore, for the purpose of this Sublease, wherever in the Master
Lease "Landlord" or "Lessor" is used, it shall be deemed to mean the Sublandlord
herein, and wherever in the Master Lease 'Tenant" or "Lessee" is used, it shall
be deemed to mean the Subtenant herein. It is expressly understood, acknowledged
and agreed by Subtenant that all of the stated terms, conditions and covenants
of this Sublease shall be those stated in the Master Lease except as excluded
below, modified as appropriate in the circumstances so as to make such Articles,
and any Sections contained therein, applicable only to the subleasing hereunder
by Sublandlord of the Sublease Premises. Subtenant shall be subject to, bound by
and comply with all of said Articles and Sections of the Master Lease with
respect to the Sublease Premises and shall satisfy all applicable terms and
conditions of the Master Lease for the benefit of both Sublandlord and Landlord.
Upon the breach of any of said terms, conditions or covenants of the Master
Lease by Subtenant or upon the failure of Subtenant to pay Minimum Rent or
Additional Rent or comply with any of the provisions of this Sublease,
Sublandlord may exercise any and all rights and remedies granted to Landlord by
the Master Lease. It is further understood and agreed that Sublandlord has no
duty or obligation to Subtenant under the aforesaid Articles and Sections of the
Master Lease other than to maintain the Master Lease in full force and effect
during the term of this Sublease; provided, however, that Sublandlord shall not
be liable to Subtenant for any earlier termination of the Master Lease which is
not due to the fault of Sublandlord. Whenever the provisions of the Master Lease
incorporated as provisions of this Sublease require the written consent of
Landlord, said provisions shall be construed to require the written consent of
both Landlord and Sublandlord. Subtenant hereby acknowledges that it has read
and is familiar with all the terms of the Master Lease, and agrees that any
termination of the Master Lease without the fault of Sublandlord shall likewise
terminate this Sublease.
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8.3 All of the terms and conditions contained in the Master Lease
are incorporated herein except for Paragraphs 1.1, 1.4, 1.8, 1.10, 1.11, 1.13,
1.14, 1.18, 1.24, 1.25, 3.1, 3.2, 3.3-3.4.5, 4.2, 23.1, 23.2, 23.3, 23.4-23.4.2,
24.15, and Exhibit D.
8.4 Subtenant shall indemnify, defend (by counsel acceptable to
Sublandlord) and hold Sublandlord harmless of and from all liability, judgments,
costs, damages, claims, or demands, including reasonable attorney's fees,
arising out of Subtenant's failure to comply with or perform Subtenant's
obligations under both the Master Lease and this Sublease.
8.5 Sublandlord represents to Subtenant that the Master Lease is in
full force and effect and that no default exists on the part of Sublandlord, and
to the best of Sublandlord's knowledge, Landlord under and to the Master Lease.
Sublandlord agrees to maintain the Master Lease during the term of this
Sublease, subject, however, to an earlier termination of the Master Lease
without the default of Sublandlord, and to hold Subtenant harmless of and from
all liability, judgement, cost, damages, claims or demands, including reasonable
attorney's fees, arising out of Sublandlord's failure to comply with or perform
Sublandlord's obligations under both the Master Lease and this Sublease.
8.6 The time limits provided for in the provisions of the Master
Lease for the giving of notice, making of demands, performance of any act,
condition or covenant, or the exercise of any right, remedy or option, are
amended for the purposes of this Sublease by lengthening or shortening the same
in each instance by five (5) days, as appropriate, so that notices may be given,
demands made, or any act, condition or covenant performed, or any right, remedy
or option hereunder exercised, by Sublandlord or Subtenant, as the case may be,
within the time limit relating thereto contained in the Master Lease. If the
Master Lease allows only five (5) days or less for Sublandlord to perform any
act, or to undertake to perform such act, or to correct any failure relating to
the Premises or this Sublease, then Subtenant shall nevertheless be allowed
three (3) days to perform such act, undertake such act and/or correct such
failure.
8.7 It shall be the obligation of Landlord to (i) provide all
services to be provided by Landlord under the terms of tile Master Lease and
(ii) to satisfy all obligations and covenants of Landlord made in the Master
Lease. Subtenant acknowledges that Sublandlord shall be under no obligation to
provide any such services or satisfy any such obligations or covenants;
provided, however, Sublandlord, upon written notice by Subtenant, shall
diligently attempt to enforce all obligations of Landlord under the Master
Lease.
9. ASSIGNMENT AND SUBLETTING,
Subtenant shall not assign this Sublease or further sublet all or any
part of the Sublease Premises without the prior written consent of Sublandlord
(and the consent of Landlord, if such is required under the terms of the Master
Lease), both of which consents may be given or withheld upon all of the terms
and conditions applicable to assignment and/or Subletting contained in the
Master Lease. All of the terms and conditions contained in Master Lease
applicable to Assignment and/or Subletting shall be applicable to Sublandlord,
as "Landlord", and Subtenant, as "Tenant".
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10. BROKER.
10.1 BROKER PARTICIPATION. Sublandlord and Subtenant warrant and
represent that they have dealt with no real estate broker in connection with
this Sublease other than Marcus & Millichap (hereinafter "Broker") and Starboard
Commercial Brokerage, and that no other broker is entitled to any commission on
account of this Sublease. Sublandlord and Subtenant shall indemnify, defend and
hold the other harmless from and against any and all liability, loss, cost and
damage (including reasonable attorneys' fees) for any claim for a brokerage
commission other than as specified herein. The indemnifying party shall be the
party upon whose acts the broker(s) is claiming a commission.
10.2 BROKER COMMISSION. Upon execution of this Sublease, and consent
thereto by Landlord (if such consent is required under the terms of the Master
Lease), Sublandlord shall pay Broker a real estate brokerage commission in
accordance with Sublandlord's contract with Broker for the subleasing of the
Sublease Premises, if any, and otherwise in the amount of sixty-three thousand
one hundred twenty Dollars ($63,120) for services rendered in effecting this
Sublease which shall be divided as follows; four Dollars ($4) per rentable
square foot or forty-two thousand eighty Dollars ($42,080) to Starboard
Commercial Brokerage, and two Dollars ($2) per rentable square foot or twenty-
one thousand forty Dollars ($21,040) to Marcus & Millichap.
10.3 BROKER DISCLAIMER. Sublandlord and Subtenant acknowledge that
except as otherwise expressly stated herein, Broker has not made any
investigation, determination, warranty or representation with respect to any of
the following: (a) the legality of the present or any possible future use of the
Sublease Premises under any federal, state or local law; (b) the physical
condition or square footage of the Sublease Premises; (c) the terms of the
Master Lease or any other relevant legal document or agreement; or (d) the
presence or location of any hazardous materials on or about the property in
which the Sublease Premises are located (including, but not limited to,
asbestos, PCB's, other toxic, hazardous or contaminated substances, and
underground storage tanks).
11. ARBITRATION.
If a controversy arises with respect to the subject matter of this Sublease
or any provision hereof, Sublandlord, Subtenant and Broker agree that such
controversy shall be settled by final, binding arbitration in accordance with
the Commercial Arbitration Rules of the American Arbitration Association, and
judgement upon the award rendered by the arbitrator(s) may be entered in any
court having jurisdiction thereof.
12. ATTORNEY'S FEES.
If Sublandlord or Subtenant shall commence an action or arbitration against
the other arising out of or in connection with this Sublease, the prevailing
party shall be entitled to recover its costs of suit and reasonable attorney's
fees.
13. NOTICES.
All notices or demands of any kind required or desired to be given by
Sublandlord or Subtenant hereunder shall be in writing and shall be deemed
delivered forty-eight (48) hours after depositing the notice or demand in the
United States Mail, certified or registered, postage prepaid, addressed to the
Sublandlord or Subtenant respectively at the addresses set forth after their
signatures at the end of this Sublease. All rent and other payments due under
this Sublease or the Master Lease shall be made by Subtenant to Sublandlord at
the same address.
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14. ADDITIONAL PROVISIONS.
14.1 Holding Over: Subtenant shall not hold over in the Sublease
Premises after the expiration or sooner termination of the Lease Term without
the express prior written consent of Sublandlord. Subtenant shall indemnify and
defend (by counsel acceptable to Sublandlord) Sublandlord for, and hold
Sublandlord harmless from and against, any and all liabilities arising out of or
in connection with any delay by Subtenant in surrendering and vacating the
Sublease Premises, including, without limitation, any claims made by any
succeeding tenant based on any delay and any liabilities arising out of or in
connection with these claims. If possession of the Sublease Premises is not
surrendered to Sublandlord on the expiration or sooner termination of the
Sublease Lease Term, in addition to any other rights and remedies of Sublandlord
hereunder or at law or in equity, Subtenant shall pay to Sublandlord for each
month or portion thereof during which Subtenant holds over in the Sublease
Premises a sum equal to two (2) times the then-current Minimum Rent in addition
to all other Additional Rent payable under this Sublease. If any tenancy is
created by Subtenant's holding over in the Sublease Premises, the tenancy shall
be on all of the terms and conditions of this Sublease, except that Rent shall
be increased as set forth above and the tenancy shall be a month-to-month
tenancy. Nothing in this provision shall be deemed to permit Subtenant to retain
possession of the Sublease Premises after the expiration of sooner termination
of the Sublease Term.
14.2 The Sublease constitutes the entire agreement between
Sublandlord and Subtenant and there are no other oral or written agreements
between them with respect to the Sublease Premises. No modification or amendment
of the Sublease will be made without prior written consent of Landlord.
14.3 Any rights and remedies of Subtenant, if any, will be solely
against Sublandlord. Neither this consent nor the Sublease will give Subtenant
any rights under the Master Lease except those expressly granted by this
Sublease.
14.4 If any conflict between the Master Lease and the Sublease
occurs, the Master Lease will control.
14.5 All insurance policies required to be carried by Subtenant,
pursuant to the terms of the Master Lease as incorporated in this Sublease,
shall contain a provision whereby Subtenant and Landlord are each named as
additional insureds under such policies.
14.6 This Sublease is conditioned upon Landlord's written approval of
this Sublease within thirty (30) days after the date hereof; provided however,
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at Sublandlord's sole election and discretion, Sublandlord may elect to commence
this Sublease notwithstanding the failure to obtain such consent and provided
Sublandlord shall indemnify Subtenant for Subtenant's actual costs involved in
commencing operations at the Sublease Premises if Subtenant is evicted as a
result of such failure to obtain consent. If Landlord's consent has riot been
obtained prior to the date hereof and Sublandlord does not elect to waive this
condition precedent as provided in this section, the commencement date of this
Sublease shall be postponed for each day of delay until such consent is
obtained, to a maximum delay of thirty (30) days. If Landlord refuses to consent
to this Sublease, or if the thirty (30) day consent period expires, this
Sublease shall terminate and neither party shall have any continuing obligation
to the other with respect to the Sublease Premises; provided Sublandlord shall
return the Security Deposit, if previously delivered to Sublandlord, to
Subtenant.
14.7 Each person executing this Sublease on behalf of a party hereto
represents and warrants that he or she is authorized and empowered to do 50 and
to thereby bind the party on whose behalf he or she is signing.
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14.8 This Sublease is intended solely for the benefit of Sublandlord
and Subtenant (and specifically not any Broker), and no third party shall have
any rights or interest in any Provision of this Sublease.
DATE: __________________________ DATE: __________________________
SUBLANDLORD: SUBTENANT:
________________________________ ________________________________
ADDRESS ADDRESS
_______________________________ ________________________________
CITY, STATE, ZIP CITY, STATE, ZIP
_______________________________ ________________________________
TELEPHONE TELEPHONE
_______________________________ ________________________________
BY BY
_______________________________ ________________________________
TITLE TITLE
_______________________________ ________________________________
BY BY
_______________________________ ________________________________
TITLE TITLE
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OWNER'S CONSENT AND AGREEMENT
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The undersigned, 470 Spear Associates, a California limited partnership
("Landlord") under the lease referred to as the "Master Lease" in the foregoing
Sublease hereby consents to the subletting described in the Sublease upon the
following express terms and conditions Terms used in this Owner's Consent
shall have the meaning set forth in the Sublease and the Master Lease.
1. The Sublease is subject and subordinate to the Master Lease and to all
of the terms, covenants, conditions, provisions and agreements set forth in the
Master Lease. The Sublease shall automatically terminate on the termination of
the Master Lease.
2. The Subtenant shall perform faithfully and be bound by all of the
terms, covenants, conditions, provisions and agreements of the Master Lease, for
the period of such subletting and to the extent of the Sublease Premises.
3. Neither such subletting nor this Consent shall:
(a) release or discharge Sublandlord or any guarantor of the Master
Lease from any liability, whether past, present or future, under the Master
Lease;
(b) operate as a consent or approval by Landlord to or of any of the
terms, covenants, conditions, provisions or agreements of the Sublease and
Landlord shall not be bound thereby;
(c) be construed to modify, waive or affect any of the terms,
covenants, conditions, provisions or agreements of the Master Lease or to waive
any breach thereof, or any of Landlord's rights as Landlord thereunder; or to
enlarge or increase Landlord's obligations as Landlord thereunder, or
(d) be construed as a consent by Landlord to any further subletting
either by Sublandlord or by Subtenant or to any assignment by Sublandlord of the
Master Lease or assignment by Subtenant of the Sublease, whether or not the
Sublease purports to permit the same and, without limiting the generality of the
foregoing, both Sublandlord and Subtenant agree that the Subtenant has no right
whatsoever to assign, mortgage or encumber the Sublease nor to sublet any
portion of the Sublease Premises or permit any portion of the Sublease Premises
to be used or occupied by any other party.
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5. In the event of Sublandlord's default under the provisions of the
Master Lease, the rent due from the Subtenant under the Sublease shall be deemed
assigned to Landlord and Landlord shall have the right, upon such default, at
any time at Landlord's option, to give notice of such assignment to the
Subtenant, and Subtenant shall thereafter pay all rent under the Sublease
directly to Landlord. Landlord shall credit Sublandlord with any rent received
by Landlord under such assignment but the acceptance of any payment on account
of rent from the Subtenant as the result of any such default shall in no manner
whatsoever be deemed an attornment by the Subtenant to Landlord, or serve to
release Sublandlord from liability under the terms, covenants, conditions,
provisions or agreements under the: Master Lease. Notwithstanding the foregoing,
any other payment of rent from the Subtenant directly to Landlord, regardless of
the circumstances or reasons thereof or, shall in no manner whatsoever be deemed
an attornment by the Subtenant to the Landlord in the absence of a specific
written agreement signed by Landlord to such an effect.
6. Both Sublandlord and Subtenant shall be and continue to be liable for
the payment of all bills rendered by Landlord for charges incurred by Landlord
for services and materials supplied to the Sublease Premises.
7. The term of the Sublease shall expire and come to an end on its
natural expiration date or any premature termination date thereof or
concurrently with any premature termination of the Master Lease (whether by
consent or other right, now or hereafter agreed to by Landlord or Sublandlord,
or by operation of law or at Landlord's option in the event of default by
Sublandlord).
8. This Consent is not assignable, nor shall this Consent be a consent to
any amendment, modification, extension or renewal of the Sublease, without
Landlord's prior written consent.
9. Sublandlord and Subtenant covenant and agree that, under no
circumstances shall Landlord be liable for any brokerage commission or other
charge or expense in connection with the Sublease, and Sublandlord and Subtenant
agree to indemnify Landlord against same and against any cost or expense
(including but not limited to counsel fees) incurred by Landlord in resisting
any claim for any such brokerage commission.
10. Sublandlord and Subtenant understand and acknowledge that Landlord's
Consent hereto is not a consent to any improvement or alteration work being
performed in the Sublease Premises, that Landlord's consent must be separately
sought for such work.
-2-
11. Notwithstanding any provision of the Sublease or this Consent to the
contrary, Subtenant agrees that Landlord shall not be (i) liable for any act or
omission of Sublandlord under the Sublease, (ii) liable for any act or omission
by any party which occurred prior to the termination date, (iii) subject to any
offsets or defenses which Subtenant may have against Sublandlord, (iv) bound by
any payment of rent or other sums made by Subtenant for any advance period under
the Sublease, (v) bound by any security deposits which Subtenant might have paid
to Sublandlord or any other party, or (v) bound by any amendment or modification
of the Sublease made without Landlord's prior written consent, which may be
withheld in the sole and absolute discretion of Landlord.
12. This Consent shall for all purposes be construed in accordance with
and governed by the laws of the State of California .
13. This Consent shall not be effective until executed by all the parties
hereto and the payment to Landlord of the sum of $1,000.00 to cover Landlord's
reasonable costs in processing this consent .
14. If any one or more of the provisions contained in this Consent shall
be invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained in this Consent shall not
in any way be affected or impaired thereby.
The execution of a copy of this Consent by Sublandlord and by the Subtenant
shall indicate your joint and several confirmation of the foregoing conditions
and of your agreement to be bound thereby and shall constitute Subtenant's
acknowledgment that it has received a copy of the Master Lease.
-3-
IN WITNESS WHEREOF, the parties hereto have executed this Consent as of the
day and year of the Sublease.
LANDLORD :
470 SPEAR ASSOCIATES,
A California limited partnership
By: Lalanne Xxxxxxx & Xxxxx Company,
A California limited partnership,
Its General Partner
By: Lalanne Xxxxxxx & Xxxxx Company,
Inc., a California corporation,
Its General Partner
By : /s/ Xxxxxx X. Xxxxxxx
-----------------------------
Xxxxxx X. Xxxxxxx
President
SUBLANDLORD:
XXX XXXXXX INCORPORATED
By: /s/ Xxx Xxxxxx Incorporated
----------------------------------
----------------------------------
(typed or printed name)
Dated:
---------------------------
SUBTENANT:
TRANSPHERE INTERNATIONAL, INC.
By: /s/ Transphere International, Inc.
----------------------------------
----------------------------------
(typed or printed name)
Dated:
---------------------------
GUARANTOR :
STEELCASE INC.
By: /s/ Steelcase Inc.
----------------------------------
----------------------------------
(typed or printed name)
Dated:
---------------------------
-4-
[FLOOR PLAN APPEARS HERE]
CONSENT TO ASSIGNMENT OF LEASE
June __, 1996
Recitals
A. 470 Spear Associated ("Spear") and Xxx Xxxxxx Incorporation ("Xxx") have
entered into that certain Master Lease Agreement (the "Master Lease Agreement")
regarding the office space located at 000 Xxxxx Xxxxxx, Xxxxx 000, Xxx
Xxxxxxxxx, Xxxxxxxxxx (the "Leased Property").
X. Xxx has entered into that certain Sublease Agreement (the "Sublease
Agreement") with Transphere International, a California corporation
("Transphere") regarding the Leased Property (the "Master Lease Agreement and
the Sublease Agreement are collectively referred to herein as the "Lease").
C. Transphere has entered into an Agreement and Plan of Reorganization (the
"Reorganization Agreement") by and between Transphere and NetSource Interactive
Services, Inc., a Delaware corporation ("NetSource") whereby Transphere was
merged with and into NetSource.
D. NetSource has entered into an Agreement and Plan of Reorganization (the
"Merger Agreement") by and between NetSource and NetSource International
Telecommunications, Inc., a Delaware corporation ("NIT") whereby NetSource was
merged with and into NIT.
NOW THEREFORE, intending to modify the Lease and to be legally bound, Spear
and Xxx (collectively referred to herein as the ("Lessors") agree as follows:
1. Consent to Assignment. Lessors consent to the assignment to NIT by
---------------------
Transphere and Netsource of all of Transphere's and NetSource rights and
obligations, respectively, under the Lease, and to the subsidiaries of NIT for
Transphere/Netsource under the Lease, effective upon the closing of the
Reorganization Agreement and Merger Agreement. From and after the assignment of
the Lease to NIT, the Lease will continue in full force and effect, unmodified
in any way, except that references in the Lease to Transphere shall be deemed to
be references to NIT. No waiver or consent by Lessors is given or implied other
than as specifically set forth in this Consent.
2. Miscellaneous. This Consent is the binding agreement between Lessors,
-------------
Transphere and NetSource with respect to the subject matter of this Consent,
superseding in their entirely all prior agreements between Lessors, Transphere
and NetSource with respect to that subject matter, and will be binding upon and
inure to the benefit of Lessors' Transphere's and NetSource's respective
successors and assigns.
IN WITNESS WHEREOF, the parties have executed this consent of the date shown
on the first page.
TRANSPHERE INTERNATIONAL XXX XXXXXX INCORPORATION
By: /s/ Xxxxxxx Xxxxxxxxxxx By: /s/ Xxx Xxxxxx Incorporation
----------------------- ----------------------------
Title: CEO Title: President
---------------------- ---------------------------
NETSOURCE INTERACTIVE SERVICES, INC. 470 SPEAR ASSOCIATES
By: /s/ Xxxxxxx Xxxxxxxxxxx By: /s/ 470 Spear Associates
----------------------- ----------------------------
Title: CEO Title:
---------------------- ---------------------------
NETSOURCE INTERNATIONAL
TELECOMMUNICATIONS, INC.
By: /s/ Xxxxxxx Xxxxxxxxxxx
-----------------------
Title: President
----------------------
