SUBLEASE
THIS SUBLEASE ("Sublease"), dated November 15, 1999 for reference
purposes only, is entered into by and between IMEDIA CORPORATION, a
California corporation ("Sublandlord") and ISP CHANNEL, INC., a Delaware
corporation ("Subtenant").
RECITALS
A. Sublandlord leases certain premises consisting of an
industrial building containing approximately 9,400 square feet, located
at 000 Xxxxx Xxxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx, pursuant to that
certain Lease dated April 20, 1998, between MV Technology Park
Investors LLC, successor-in-interest to Xxxxxx XX Associates, L.P., as
landlord (the "Master Landlord") and Sublandlord, as tenant (the
"Master Lease"), as more particularly described therein (the
"Premises"). Capitalized terms used but not defined herein have the
same meanings as they have in the Master Lease.
B. Sublandlord desires to sublease the Premises to Subtenant,
and Subtenant desires to sublease the Premises from Sublandlord on the
terms and provisions hereof.
NOW, THEREFORE, in consideration of the mutual covenants and
conditions contained herein, Sublandlord and Subtenant covenant and
agree as follows:
AGREEMENT
1. Premises. On and subject to the terms and conditions
below, Sublandlord hereby leases to Subtenant, and Subtenant hereby
leases from Sublandlord, the Premises.
2. Term. This Sublease shall commence on October 15, 1999
(the "Commencement Date"), provided Sublandlord has theretofore
obtained the consent of Master Landlord, and shall expire June 21,
2003, unless sooner terminated pursuant to any provision hereof.
3. Possession. If for any reason Sublandlord cannot deliver
possession of the Premises to Subtenant within fifteen (15) days of the
execution of this Sublease, Sublandlord shall not be subject to any
liability therefor, nor shall such failure affect the validity of this
Sublease or the obligations of Subtenant hereunder or extend the term
hereof, provided that no rent shall be due hereunder until possession
of the Premises has been delivered to Subtenant.
4. Rent.
(a) Commencing on the Commencement Date and continuing
throughout the term of this Sublease, Subtenant shall pay monthly rent
to Sublandlord in the following amounts:
(i) Base Rent. Starting on the Commencement Date,
Sublessee shall pay as base rent ("Base Rent") for the Premises monthly
rent in the amounts set forth below. Base Rent and Additional Rent
shall collectively be referred to herein as "Rent."
Amount Per
Months Square Foot NNN Monthly Rental
10/15/1999-10/14/2000 $2.15 $20,210
10/15/2000-10/14/2001 $2.20 $20,680
10/15/2001-10/14/2002 $2.25 $21,150
10/15/2002-06/21/2003 $2.30 $21,620
(ii) Additional Rent. In addition to Base Rent,
Subtenant shall also pay to Sublandlord, all Subtenant's Share of
Common Operating Expenses (as that term is defined in Section 8.1 of
the Master Lease) and all other costs payable by Sublandlord under
Section 3.2 of the Master Lease ("Additional Rent"). If Sublandlord
receives monthly invoices for such Additional Rent from the Master
Landlord, under Section 8.1 of the Master Lease, Sublandlord shall
immediately forward same to Subtenant for payment. Alternatively, if
Sublandlord currently pays an estimated monthly installment for such
Additional Rent, under Section 8.1 of the Master Lease, Sublandlord
shall each month prepare and send to Subtenant an invoice for such
Additional Rent due on the first day of the following month. Subtenant
shall pay each invoice for Additional Rent within five (5) days of
receipt of same from Sublandlord.
(iii) Payment of Rent. If the Commencement Date does
not fall on the first day of a calendar month, Rent for the first month
shall be prorated on a daily basis based upon a calendar month. Rent
shall be payable to Sublandlord in lawful money of the United States,
in advance, without prior notice, demand, or offset, on or before the
first day of each calendar month during the term hereof. All Rent
shall be paid to Sublandlord at the address specified for notices to
Sublandlord in Section 14, below.
(b) Subtenant recognizes that late payment of any Rent
will result in administrative expenses to Sublandlord, the extent of
which additional expenses are extremely difficult and economically
impractical to ascertain. Subtenant therefore agrees that if any Rent
shall remain unpaid five (5) days after such amounts are due, the
amount of such Rent shall be increased by a late charge to be paid to
Sublandlord by Subtenant in an amount equal to ten (10) percent of the
amount of the delinquent Rent.
(c) Upon execution of this Sublease, Subtenant shall
deliver to Sublandlord the sum of Twenty Thousand Two Hundred Ten
Dollars ($20,210), representing the first month's Base Rent.
(d) In the event of any casualty or condemnation
affecting the Premises, Rent payable by Subtenant shall be abated
hereunder, but only to the extent that Rent under the Master Lease is
abated, and Subtenant waives any right to terminate this Sublease in
connection with such casualty or condemnation except to the extent the
Master Lease is also terminated as to the Premises or any portion
thereof.
5. Security Deposit. Upon execution of this Sublease,
Subtenant shall deposit with Sublandlord the sum of Twenty-One Thousand
Six Hundred Twenty Dollars ($21,620) as a security deposit ("Security
Deposit"). If Subtenant fails to pay Rent or other charges when due
under this Sublease, or fails to perform any of its other obligations
hereunder, Sublandlord may use or apply all or any portion of the
Security Deposit for the payment of any Rent or other amount then due
hereunder and unpaid, for the payment of any other sum for which
Sublandlord may become obligated by reason of Subtenant's default or
breach, or for any loss or damage sustained by Sublandlord as a result
of Subtenant's default or breach. If Sublandlord so uses any portion
of the Security Deposit, Subtenant shall restore the Security Deposit
to the full amount originally deposited within ten (10) days after
Sublandlord's written demand. Sublandlord shall not be required to
keep the Security Deposit separate from its general accounts, and shall
have no obligation or liability for payment of interest on the Security
Deposit. The Security Deposit, or so much thereof as had not
theretofore been applied by Sublandlord, shall be returned to Subtenant
within thirty (30) days of the expiration or earlier termination of
this Sublease, provided Subtenant has vacated the Premises according to
the terms of this Sublease.
6. Assignment and Subletting. Subtenant may not assign,
sublet, transfer, pledge, hypothecate or otherwise encumber the
Premises, in whole or in part, or permit the use or occupancy of the
Premises by anyone other than Subtenant, unless Subtenant has obtained
Sublandlord's consent thereto (which shall not be unreasonably
withheld) and the consent of Master Landlord. Regardless of
Sublandlord's consent, no subletting or assignment shall release
Subtenant of its obligations hereunder. Any rent or other
consideration payable to Subtenant pursuant to any sublease or
assignment permitted by this paragraph which is in excess of the Rent
payable to Sublandlord pursuant hereto ("Sublease Bonus Rent") shall be
divided equally between Sublandlord and Subtenant. Sublandlord
specifically agrees, however, that Subtenant may freely assign,
transfer or sublease this Sublease to any subsidiary, parent company,
or related entity, according to the terms of Section 14.1(F) of the
Master Lease, including such relationship established through the sale
or transfer of stock, provided that such subsidiary, company or entity
assumes all obligations and duties of this Sublease, and provided
further that Subtenant shall remain obligated for the performance of
all the terms and conditions of this Sublease, regardless of to whom
this Sublease is assigned, transferred or subleased.
7. Condition of Premises. Subtenant has used due diligence in
inspecting the Premises and agrees to accept the Premises in "as-is"
condition and with all faults without any representation or warranty of
any kind or nature whatsoever, or any obligation on the part of
Sublandlord to modify, improve or otherwise prepare the Premises for
Subtenant's occupancy.
8. Use. Subtenant may use the Premises only for the purposes
as allowed in the Master Lease, and for no other purpose. Subtenant
shall promptly comply with all applicable statutes, ordinances, rules,
regulations, orders, restrictions of record, and requirements in effect
during the term of this Sublease governing, affecting and regulating
the Premises, including but not limited to the use thereof. Subtenant
shall not use or permit the use of the Premises in a manner that will
create waste or a nuisance, interfere with or disturb other tenants in
the Building or violate the provisions of the Master Lease.
9. Parking. Subtenant shall have such parking rights as
Sublandlord may have in connection with the Premises pursuant to
Section 4.5 of the Master Lease.
10. Incorporation of Sublease.
(a) All of the terms and provisions of the Master Lease,
except as provided in subsection (b) below, are incorporated into and
made a part of this Sublease and the rights and obligations of the
parties under the Master Lease are hereby imposed upon the parties
hereto with respect to the Premises, Sublandlord being substituted for
the "Landlord" in the Master Lease, and Subtenant being substituted for
the "Tenant" in the Master Lease. It is further understood that where
reference is made in the Master Lease to the "Premises," the same shall
mean the Premises as defined herein; where reference is made to the
"Commencement Date," the same shall mean the Commencement Date as
defined herein; and where reference is made to the "Lease," the same
shall mean this Sublease.
(b) The following Paragraphs of the Master Lease are not
incorporated herein: Summary of Basic Lease Terms: A, B, C, I, J, K,
L, M, P, Q, R, 1.3, 1.6, 1.8, 1.12, 1.18, 2.2, 2.3, 3.1, 3.3, 3.5,
15.8, 15.13, and Exhibit B.
(c) Subtenant hereby assumes and agrees to perform for
Sublandlord's benefit, during the term of this Sublease, all of
Sublandlord's obligations with respect to the Premises under the Master
Lease, except as otherwise provided herein. Subtenant shall not commit
or permit to be committed any act or omission which violates any term
or condition of the Master Lease. Except as otherwise provided herein,
this Sublease shall be subject and subordinate to all of the terms of
the Master Lease.
11. Insurance. Subtenant shall be responsible for compliance
with the insurance provisions of Section 9 of the Master Lease. Such
insurance shall insure the performance by Subtenant of its
indemnification obligations hereunder and shall name Master Landlord
and Sublandlord as additional insureds. All insurance required under
this Sublease shall contain an endorsement requiring thirty (30) days
written notice from the insurance company to Subtenant and Sublandlord
before cancellation or change in the coverage, insureds or amount of
any policy. Subtenant shall provide Sublandlord with certificates of
insurance evidencing such coverage prior to the commencement of this
Sublease.
12. Default. In addition to defaults contained in the Master
Lease, failure of Subtenant to make any payment of Rent when due
hereunder shall constitute an event of default hereunder.
13. Notices. The addresses specified in the Master Lease for
receipt of notices to each of the parties are deleted and replaced with
the following:
To Sublandlord at: 0000 Xxxxxx Xxxx Xxxx
Xxxxx Xxxxx, XX 00000
Attn: Operations Controller
To Subtenant at: At the Premises
14. Sublandlord's Obligations.
(a) To the extent that the provision of any services or
the performance of any maintenance or any other act respecting the
Premises or Building is the responsibility of Master Landlord
(collectively "Master Landlord Obligations"), upon Subtenant's request,
Sublandlord shall make reasonable efforts to cause Master Landlord to
perform such Master Landlord Obligations, provided, however, that in no
event shall Sublandlord be liable to Subtenant for any liability, loss
or damage whatsoever in the event that Master Landlord should fail to
perform the same, nor shall Subtenant be entitled to withhold the
payment of Rent or terminate this Sublease. It is expressly understood
that the services and repairs which are incorporated herein by
reference, including but not limited to the maintenance of exterior
walls, structural portions of the roof, foundations, walls and floors,
will in fact be furnished by Master Landlord and not by Sublandlord,
except to the extent otherwise provided in the Master Lease. In
addition, Sublandlord shall not be liable for any maintenance,
restoration (following casualty or destruction) or repairs in or to the
Building or Premises, other than its obligation hereunder to use
reasonable efforts to cause Master Landlord to perform its obligations
under the Master Lease. With respect to any maintenance or repair to
be performed by Master Landlord respecting the Premises, the parties
expressly agree that Subtenant shall have the right to contact Master
Landlord directly to cause it to so perform.
(b) Except as otherwise provided herein, Sublandlord
shall have no other obligations to Subtenant with respect to the
Premises or the performance of the Master Landlord Obligations.
15. Early Termination of Sublease. If, without the fault of
Sublandlord, the Master Lease should terminate prior to the expiration
of this Sublease, Sublandlord shall have no liability to Subtenant on
account of such termination. To the extent that the Master Lease
grants Sublandlord any discretionary right to terminate the Master
Lease, whether due to casualty, condemnation, or otherwise, Sublandlord
shall be entitled to exercise or not exercise such right in its
complete and absolute discretion.
16. Consent of Master Landlord and Sublandlord. If Subtenant
desires to take any action which requires the consent or approval of
Sublandlord pursuant to the terms of this Sublease, prior to taking
such action, including, without limitation, making any alterations,
then, notwithstanding anything to the contrary herein, (a) Sublandlord
shall have the same rights of approval or disapproval as Master
Landlord has under the Master Lease, and (b) Subtenant shall not take
any such action until it obtains the consent of Sublandlord and Master
Landlord, as may be required under this Sublease or the Master Lease.
This Sublease shall not be effective unless and until any required
written consent of the Master Landlord shall have been obtained.
17. Indemnity. Subtenant shall indemnify, defend, protect, and
hold Sublandlord and Master Landlord harmless from and against all
actions, claims, demands, costs liabilities, losses, reasonable
attorneys' fees, damages, penalties, and expenses (collectively
"Claims") which may be brought or made against Sublandlord or which
Sublandlord may pay or incur to the extent of such claims caused by (i)
a breach of this Sublease by Subtenant, (ii) any violation of law by
Subtenant or its employees, agents, contractors or invitees
(collectively, "Agents") relating to the use or occupancy of the
Premises, (iii) any act or omission by Subtenant or its Agents
resulting in contamination of any part or all of the Premises by
Hazardous Materials, or (iv) the negligence or willful misconduct of
Subtenant or its Agents.
18. Brokers. Each party hereto represents and warrants that it
has dealt with no broker in connection with this Sublease and the
transactions contemplated herein, except Cornish & Xxxxx Commercial and
Cupertino Capital. Each party shall indemnify, protect, defend and
hold the other party harmless from all costs and expenses (including
reasonable attorneys' fees) arising from or relating to a breach of the
foregoing representation and warranty.
19. Surrender of Premises. Upon the expiration or earlier
termination of this Sublease, Subtenant shall surrender the Premises in
the same condition as they were in on the Commencement Date, except for
ordinary wear and tear.
20. No Third Party Rights. The benefit of the provisions of
this Sublease is expressly limited to Sublandlord and Subtenant and
their respective permitted successors and assigns. Under no
circumstances will any third party be construed to have any rights as a
third party beneficiary with respect to any of said provisions.
21. Counterparts. This Sublease may be signed in two or more
counterparts, each of which shall be deemed an original and all of
which shall constitute one agreement.
22. Representations and Warranties. Sublandlord represents and
warrants that the Master Lease is the entire agreement between Master
Landlord and Sublandlord relating to the Premises and is in full force
and effect, and that to Sublandlord's knowledge neither Sublandlord nor
Master Landlord is in default beyond applicable cure periods under the
Master Lease.
IN WITNESS WHEREOF, the parties have executed this Sublease as of
the date first written above.
IMEDIA CORPORATION ISP CHANNEL, INC.
By: By:
Its: Its:
CONSENT OF MASTER LANDLORD
MV Technology Park Investors LLC, the Master Landlord under the
Master Lease hereby consents to the Sublease attached hereto, and all
of the terms and conditions contained therein.
MV TECHNOLOGY PARK INVESTORS LLC
a
By:
Its:
Date:
