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EXHIBIT 10.23
SUB-SUBLEASE
THIS SUB-SUBLEASE (this "Sub-Sublease") is entered into this 8th of
February, 1999 (the "Effective Date"), by and between General Magic, Inc., a
Delaware corporation ("Sub-Sublessor"), and DataRover Mobile Systems, Inc., a
California corporation ("Sub-Sublessee").
RECITALS:
A. This Sub-Sublease is made under the terms of that certain lease
dated February 20, 1998, by and between Aetna Life Insurance Company, as
landlord ("Master Lessor"), and Classifieds2000, Inc., as tenant
("Classifieds2000") (the "Master Lease"). The Master Lease pertains to
approximately twenty thousand (20,000) square feet of space located at 000
Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxx (the "Premises"). A copy of the Master
Lease is attached hereto as Exhibit A and, subject to the terms hereof, is
incorporated herein by reference.
B. Classifieds2000, as sublandlord, and Sub-Sublessor, as subtenant,
entered into that certain Sublease (the "Sublease") dated December 4, 1998
pursuant to which Sub-Sublessor has subleased the Premises. The Sublease is
attached hereto as Exhibit B and, subject to the terms hereof, is incorporated
herein by reference.
C. Sub-Sublessee desires to sublease a portion of the Premises
consisting of approximately ten thousand (10,000) square feet and shown as the
cross-hatched area on the floor plan attached hereto as Exhibit C (the
"Sub-Sublease Premises"), on the terms and conditions set forth below.
NOW, THEREFORE, for good and valuable consideration, the parties agree
as follows:
1. Sub-Sublease. Sub-Sublessor hereby subleases to Sub-Sublessee, and
Sub-Sublessee hereby subleases from Sub-Sublessor, the Sub-Sublease Premises on
the terms and conditions hereinafter set forth. Sub-Sublessor warrants to
Sub-Sublessee that to the Sub-Sublessor's knowledge, (a) the Master Lease and
the Sublease have not been amended or modified, (b) Sub-Sublessor is not in
default or breach of either the Sublease or the Master Lease, and (c)
Sub-Sublessor has no knowledge of a claim by either Master Lessor or Classifieds
2000 of a breach or default.
2. Term. The term of this Sub-Sublease (the "Term") shall commence on
the later of (a) February 8, 1999, or (b) the date that the consents to this
Sub-Sublease have been obtained from the Master Lessor and Classifieds2000 (the
"Commencement Date"). Subject to Paragraphs 13 and 14 hereof, the Term shall
expire at midnight on February 7, 2001 (the "Expiration Date"). Notwithstanding
the foregoing, if for any reason Sub-Sublessor cannot deliver possession of the
Sub-Sublease Premises to Sub-Sublessee on the Commencement Date, Sub-Sublessor
shall not be subject to any liability on account of said failure to deliver, nor
shall such failure affect the validity of the Sub-Sublease or the obligations of
the Sub-Sublessee hereunder, but in such event, Sub-Sublessee shall not be
obligated to pay rent for the Sub-Sublease Premises until possession thereof is
tendered to Sub-Sublessee and the Term would
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expire on the second anniversary of the delivery of possession of the
Sub-Sublease Premises to Sub-Sublessee. Sub-Sublessee shall have no option to
extend the Term.
3. Rent.
(a) Base Monthly Rent. Sub-Sublessee shall pay to Sub-Sublessor
as base monthly rent for the Sub-Sublease Premises ("Monthly Rent") the
following amounts: (i) from the Commencement Date until the first anniversary of
the Commencement Date, the amount of Ten Thousand Dollars ($10,000), and (ii)
from the first anniversary of the Commencement Date until the end of the Term,
one-half (1/2) of the full amount of Base Rent payable by Sub-Sublessor under
the Sublease. Monthly Rent shall be payable, in advance on the first day of each
month, without deduction, offset or abatement to Sub-Sublessor at the address
set forth in Paragraph 11 below or at such other address as may be designated in
writing. Monthly Rent for any partial month during the Term shall be prorated
based on a thirty (30) day month.
(b) Additional Rent. During the first year of the Term,
Sub-Sublessee shall only be responsible for paying Sub-Sublessor the Monthly
Rent described above plus its costs and expenses for telephone service and data
transmission charges which shall be separately contracted for by Sub-Sublessee.
Commencing on the first anniversary of the Commencement Date and continuing
throughout the Term, in addition to the Monthly Rent described above,
Sub-Sublessee shall pay to Sub-Sublessor one-half (1/2) of all amounts payable
by Sub-Sublessor under the Sublease in connection with the operation,
maintenance and management of the Premises, including, without limitation, all
sums payable by Sub-Sublessor under Section 2.3 of the Sublease. Additionally,
from and after the first anniversary of the Commencement Date, Sub-Sublessee
shall be fully responsible for all of the costs and expenses incurred in
connection with all utilities and services furnished to the Sub-Sublease
Premises.
4. [Intentionally Omitted.]
5. Incorporation of Lease Terms.
(a) Subordination; Sub-Sublessee Obligations. This
Sub-Sublease is subject and subordinate to all of the terms and conditions of
the Master Lease and the Sublease. Except for those provisions of the Master
Lease and Sublease excluded by Paragraph 5(b) below, Sub-Sublessee hereby
expressly assumes the obligations of Sub-Sublessor as "Tenant" under the Master
Lease and as "Subtenant" under the Sublease, to the extent such obligations
arise from and after the Commencement Date and are applicable to the
Sub-Sublease Premises. If Sub-Sublessee fails to pay any sum of money to
Sub-Sublessor, or fails, within any applicable cure period, to perform any other
obligation hereunder, then Sub-Sublessor may, but shall not be required to, 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
Sub-Sublessee to Sub-Sublessor upon demand, together with interest thereon at
the rate described in Section 45 of the Master Lease.
(b) Incorporation. Except as otherwise provided in this
Sub-Sublease, all of the terms and conditions applicable to the Sub-Sublease
Premises contained in the Master Lease
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are incorporated herein as terms of this Sub-Sublease (with each reference
therein to "Landlord" and "Tenant" to be deemed to refer to "Sub-Sublessor" and
"Sub-Sublessee" respectively) except for those provisions specifically excluded
or modified under the Sublease, all of which are specifically excluded from this
Sub-Sublease. All of the terms and conditions applicable to the Sub-Sublease
Premises contained in the Sublease, including those terms of the Master Lease
which are specifically incorporated into the Sublease, are incorporated herein
as terms of this Sub-Sublease (with each reference therein to "Sublandlord" and
"Subtenant" to be deemed to refer to "Sub-Sublessor" and "Sub-Sublessee"
respectively) except that Sections 2.5, 4.1, 7 and 14 of the Sublease are hereby
excluded from this Sub-Sublease.
(c) Sub-Sublessor's Obligations. Notwithstanding the
foregoing, it is understood and agreed that Sub-Sublessor shall not be obligated
to perform any of the obligations of Master Lessor under the Master Lease with
respect to the provisions of the Master Lease incorporated into the Sublease,
and that Sub-Sublessor shall not be obligated to perform any of the obligations
of Classifieds2000 under the Sublease with respect to the provisions of the
Sublease incorporated into this Sub-Sublease.
(d) (i) Sub-Sublessee hereby agrees to indemnify and hold
harmless Sub-Sublessor from and against any and all claims, liabilities, losses,
damages and expenses (including reasonable attorneys' fees) incurred by
Sub-Sublessor arising out of, from or in connection with (x) the use or
occupancy of the Sub-Sublease Premises by Sub-Sublessee, or (y) any breach or
default by Sub-Sublessee under this Sub-Sublease, except for claims arising from
Sub-Sublessor's negligence or willful acts.
(ii) Sub-Sublessor hereby agrees to indemnify and hold
harmless Sub-Sublessee from and against any and all claims, liabilities, losses,
damages and expenses (including reasonable attorneys' fees) incurred by
Sub-Sublessee arising out of, from or in connection with (x) the use or
occupancy of the Premises (other than the Sub-Sublease Premises) by
Sub-Sublessor, or (y) any breach or default by Sub-Sublessor under this
Sub-Sublease, except for claims arising from Sub-Sublessee's negligence or
willful acts.
6. Use. The Sub-Sublease Premises shall be used and occupied solely for
the purposes set forth in Section 3 of the Sublease.
7. Condition of the Sub-Sublease Premises. Notwithstanding any
provision to the contrary in the Master Lease and the Sublease, by execution of
this Sub-Sublease, Sub-Sublessee accepts the Sub-Sublease Premises as being in
good and sanitary order, condition, and repair, and accepts the Sub-Sublease
Premises "as is" in their present condition without any representation or
warranty by Sub-Sublessor as to the condition of the Sub-Sublease Premises or as
to the use or occupancy which may be made thereof. Sub-Sublessee shall have no
restoration obligations pursuant to the terms of the Master Lease with respect
to any alterations made by Sub-Sublessor or Classifieds2000 to the Sub-Sublease
Premises prior to the Commencement Date; provided, however, Sub-Sublessee shall
be responsible for all restoration obligations pursuant to the terms of the
Master Lease with respect to alterations made by Sub-Sublessee to the
Sub-Sublease Premises from and after the Commencement Date. Each party shall
indemnify the other against all damages, costs and expenses which the other
party may incur by reason of a breach or failure
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on the other party's part to comply with the foregoing sentence, including
reasonable attorneys' fees and court costs.
8. Insurance.
(a) Sub-Sublessee's Insurance. Sub-Sublessee agrees to carry the
insurance coverage described in Section 16 of the Master Lease during the term
of this Sub-Sublease. Sub-Sublessee shall name Sub-Sublessor, Classifieds2000
and Master Lessor as additional insureds under the required insurance policies.
Prior to its occupancy of the Sub-Sublease Premises, Sub-Sublessee shall deliver
certificates of insurance evidencing the above to Sub-Sublessor,
Classifieds2000, and Master Lessor.
(b) Waiver of Subrogation. The waivers of rights of recovery and
subrogation set forth in Paragraph 18 of the Master Lease shall be deemed a four
party agreement binding among and inuring to the benefit of Sub-Sublessor,
Sub-Sublessee, Master Lessor and Classifieds2000.
9. Assignment and Subletting. Notwithstanding any provision in the
Sublease to the contrary, and subject to Section 24 of the Master Lease:
(a) Sub-Sublessor's Consent. Sub-Sublessee shall not transfer,
assign or convey this Sub-Sublease, or any interest therein, voluntarily or
involuntarily, and shall not sublet the Sublease Premises or any part thereof,
or any right or privilege appurtenant thereto, without the prior written consent
of Sub-Sublessor, which consent shall not be unreasonably withheld. Any
attempted or purported transfer of this Sub-Sublease, or the Sub-Sublessee's
interest in this Sub-Sublease or in and to the Sub-Sublease Premises without
Sub-Sublessor's prior written consent shall be void and confer no rights upon
any third person and at Sub-Sublessor's election shall constitute a default by
Sub-Sublessee under this Sub-Sublease. Consent by Sub-Sublessor to any such
assignment or subletting shall not be deemed a consent to any subsequent
assignment or subletting. Notwithstanding the foregoing, in no event shall
Sub-Sublessee assign, sublet, convey or otherwise transfer more than fifty
percent (50%) of the Sub-Sublease Premises and Sub-Sublessor shall be entitled
to withhold its consent to any request for an assignment, subletting or other
transfer of more than fifty percent (50%) of the Sub-Sublease Premises.
(b) Requirements. Each assignment, sublease or other act which
requires the consent of Sub-Sublessor pursuant to Paragraph 9(a) above, and to
which Sub-Sublessor has consented shall be by an instrument in writing in form
reasonably satisfactory to Sub-Sublessor, and shall be executed by all parties
to the transaction. Each assignee shall agree in writing for the benefit of
Sub-Sublessor to assume, to be bound by and to perform the terms, conditions and
covenants of this Sub-Sublease to be performed by Sub-Sublessee. One executed
copy of such written instrument shall be delivered to Sub-Sublessor.
(c) No Release of Sub-Sublessee. Regardless of Sub-Sublessor's
consent, no subletting or assignment shall release Sub-Sublessee of
Sub-Sublessee's obligation or alter the primary liability of Sub-Sublessee to
pay the rent and to perform all other obligations to be
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performed by Sub-Sublessee hereunder. The acceptance of rent by Sub-Sublessor
from any other person shall not be deemed to be a waiver by Sub-Sublessor of any
provision hereof. Consent to one assignment or subletting shall not be deemed
consent to any subsequent assignment or subletting. In the event of default by
any assignee of Sub-Sublessee or any successor of Sub-Sublessee, in the
performance of any of the terms hereof, Sub-Sublessor may proceed directly
against Sub-Sublessee without the necessity of exhausting remedies against said
assignee.
(d) Attorney's Fees. In the event Sub-Sublessee shall assign or
sublet the Sub-Sublease Premises or request the consent of Sub-Sublessor to any
assignment or subletting or if Sub-Sublessee shall request the consent of
Sub-Sublessor for any act Sub-Sublessee proposes to do then Sub-Sublessee shall
pay Sub-Sublessor's reasonable attorneys' fees incurred in connection therewith.
10. Consent. Notwithstanding any provision to the contrary in the
Master Lease, whenever the consent of Master Lessor is required under the Master
Lease, Sub-Sublessee shall obtain the consent of each of Sub-Sublessor,
Classifieds2000 and Master Lessor, in that order.
11. Notices. All notices given under this Sub-Sublease shall be deemed
delivered on actual receipt or refusal of delivery, and to reflect the following
addresses of the parties to which all communications, notices and demands of any
kind which either party may be required or desires to give to or serve upon the
other party shall be sent:
If to Sub-Sublessor:
General Magic, Inc.
000 Xxxxx Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: General Counsel
Facsimile (000) 000-0000
If to Sub-Sublessee:
DataRover Mobile Systems, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Controller
Facsimile (000) 000-0000
12. Brokers. Each party represents to the other that no brokerage
commission or finder's fee has been incurred in connection with this
transaction, and each party shall indemnify the other against any such
commission or fee which may be alleged to have been incurred by it in connection
with this Sub-Sublease.
13. Default. In addition to all other rights and remedies of
Sub-Sublessor hereunder, should Sub-Sublessee be in default under any of the
covenants or obligations of the Master Lease, the Sublease, or this
Sub-Sublease, including payment of Monthly Rent and other
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payments, then Sub-Sublessor shall have the rights of Master Lessor set forth in
the Master Lease in the event of such default.
14. Termination of Master Lease or Sublease. In the event the Master
Lease or Sublease is terminated for any reason, then, on the date of such
termination, this Sub-Sublease shall automatically terminate and be of no
further force or effect. If the termination of the Master Lease or the Sublease
(and resulting termination of the Sublease and/or this Sub-Sublease) occurs
through no fault of Sub-Sublessor, Sub-Sublessor shall have no liability to
Sub-Sublessee for the resultant termination of this Sub-Sublease.
15. Entire Agreement. This Sub-Sublease contains all of the terms,
covenants and conditions agreed to by Sub-Sublessor and Sub-Sublessee and may
not be modified orally or in any manner other than by an agreement in writing
signed by all the parties to this Sub-Sublease or their respective successors in
interest.
16. Exhibits. All exhibits attached hereto are incorporated in this
Sub-Sublease, except as expressly excluded herein.
17. Counterparts. This Sub-Sublease may be executed in any number of
counterparts, each of which shall be deemed an original, and when taken together
they shall constitute one and the same Sublease.
18. Conditions Precedent to Effectiveness. This Sub-Sublease shall not
become effective until Master Lessor and Classifieds2000 have consented to this
Sub-Sublease. Sub-Sublessor agrees to promptly seek such consent from Master
Lessor and Classifieds 2000. If the foregoing has not occurred within sixty (60)
days of the parties execution of this Sub-Sublease, then this Sub-Sublease shall
be deemed void and the parties shall have no further rights or obligations
hereunder.
19. Sub-Sublessor Payments. Sub-Sublessor shall, in accordance with the
Real Estate License Agreement between the parties, dated November 4, 1998, pay
the following to the extent not previously paid: (a) all of Sub-Sublessee's
reasonable moving expenses from 000 Xxxxx Xxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxx to
the Sub-Sublease Premises, (b) the costs of furnishing the Sub-Sublease Premises
in a manner consistent with the Licensed Area (as defined in the Real Estate
License Agreement) and (iii) the cost of wiring the Sub-Sublease Premises for
telephone service and data transmission.
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IN WITNESS WHEREOF, the parties hereto have executed this Sub-Sublease
on the date first above written.
SUB-SUBLESSOR:
General Magic, Inc., a Delaware corporation
By: /s/ Xxxxx X. XxXxxxxxx
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Its: COO & CFO
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SUB-SUBLESSEE:
DataRover Mobile Systems, Inc., a
California corporation
By: /s/ Xxxx Xxxxxxx
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Its: Secretary & Treasurer
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EXHIBIT A
Master Lease
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EXHIBIT B
Sublease
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EXHIBIT C
Sub-Sublease Premises
