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EXHIBIT 10.9
SUBLEASE AGREEMENT
BETWEEN
AUTODESK, INC.
AND
OBJECTSWITCH, INC.
October 14, 1999
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SUBLEASE AGREEMENT
THIS SUBLEASE AGREEMENT (hereinafter referred to as "Sublease"), entered
into as of October 14, 1999, is made by and between Autodesk, Inc., a Delaware
corporation (herein called "Sublandlord"), and ObjectSwitch, Inc., a California
corporation (herein called "Subtenant"), with reference to the following facts:
A. Pursuant to that certain Lease dated June 30, 1998 (the "Master
Lease"), ▇▇▇ and ▇▇▇▇▇ Shekou ("Landlord"), as Landlord, leased to Sublandlord,
as tenant, certain space (the "Master Lease Premises") in the Building located
at ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ (the "Building"). Capitalized
terms that are not defined in this Sublease shall have the meanings set forth
in the Master Lease.
B. Subtenant wishes to sublease from Sublandlord, and Sublandlord wishes
to sublease to Subtenant, the Master Lease Premises consisting of a portion of
the first floor and the entire second floor of the Building, as more
particularly described in Exhibit A attached hereto and made a part hereof
(hereinafter called the "Subleased Premises").
NOW, THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged by the parties, Sublandlord and Subtenant hereby agree as follows:
1. Sublease. 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 Subleased Premises. Subtenant shall have
the parking rights provided to Sublandlord under the Master Lease.
2. Term.
2.1 The term of this Sublease ("Term") shall commence on November
10, 1999 (the "Commencement Date") and end on October 9, 2006 (the "Expiration
Date"), unless sooner terminated pursuant to any provision hereof.
3. Right to Terminate.
3.1 Landlord and Tenant shall each have the right and option to
terminate this Sublease ("Termination Option") upon not less than 12 months'
prior written notice. Landlord or Tenant shall give such notices, if at all,
(i) on or before November 1, 2001 for a termination date of November 1, 2002,
(ii) on or before November 1, 2002 for a termination date of November 1, 2003,
and (iii) on or before November 1, 2003 for a termination date of November 1,
2004.
3.2 Notwithstanding the foregoing, Tenant may not exercise this
Termination Option and such option if exercised shall be effective if, at the
time of such exercise or at the time of the purported termination date an
uncured Event of Default has occurred with respect to Tenant.
3.3 Time is of the essence with respect to this Termination Option.
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4. Rent.
4.1 Rent Payments. Subtenant shall pay to Sublandlord as Base Rent for
the Subleased Premises during the Term the following amounts:
MONTHS PER ANNUM PER MONTH
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Months 1-12 $650,496.00 $54,208.00
Months 13-24 $676,515.84 $56,376.32
Months 25-36 $703,576.47 $58,631.37
Months 37-48 $731,719.53 $60,976.63
Months 49-60 $760,988.31 $63,415.69
Months 61-72 $791,427.85 $65,952.32
Remainder of Term $823,084.96 $68,590.41
Notwithstanding the fact that the Commencement Date is November 10, 1999,
all rent increases shall be effective as of the first day of November of each
applicable year rather than as of the tenth day of November of each applicable
year.
(a) Upon execution of this Sublease, Subtenant shall pay the Base
Rent for the first month of the term in the amount of $37,945.60.
(b) If the Term does not begin or end on the last day of a month,
the Base Rent for that partial month shall be prorated by multiplying the
monthly Base Rent by a fraction, the numerator of which is the number of days
of the partial month included in the Term and the denominator of which is the
total number of days in the full calendar month. All Rent (hereinafter defined
as Base Rent and additional monies owed by Subtenant to Sublandlord hereunder)
shall be payable in lawful money of the United States, by regular bank check of
Subtenant, to Sublandlord at the address stated herein or to such other persons
or at such other places as Sublandlord may designate in writing.
4.2 Taxes and Operating Expenses. Except for the costs of utilities
furnished to the Premises, including water, electricity, gas and heating,
ventilation and air conditioning, which shall be paid for by Subtenant, the
Rent is inclusive of operating expenses and real estate taxes.
4.3 Furniture and Equipment.
(a) During the Term of this Sublease, Subtenant shall lease the
personal property and equipment described in Exhibit B attached hereto
("Personal Property") from Sublandlord.
(b) In addition to the Base Rent, Subtenant shall pay Sublandlord as
rent for the Personal Property, the amount of $73,200.00 per annum, payable in
equal monthly installments of $6,100.00 (the "Personal Property Rent").
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(c) The Personal Property Rent shall be paid at the time and
in the same manner as the Base Rent and a failure by Subtenant to pay any
installment of the Personal Property Rent shall constitute an Event of Default
hereunder.
(d) Upon the Expiration Date or the earlier termination of
this Sublease, Subtenant shall restore the Personal Property to the same
condition it was in at the commencement of this Sublease, normal wear and tear
excepted. Sublandlord shall have the right to inspect all such Personal Property
prior to the Expiration Date to confirm its condition and Subtenant shall be
responsible for any damages incurred by Sublandlord by reason of damage, loss,
theft or destruction of the Personal Property.
4.4 Card Key
(a) Subtenant shall provide Sublandlord with written notice
of its election either (i) to terminate the existing card key security system
("Card Key System") and, at its sole cost and expense, enter into an agreement
with MTI or with another vendor approved by Sublandlord in writing to adapt the
system to its use or (ii) to engage Sublandlord to administer the Card Key
System in the Subleased Premises at the rate of $15.00 per card key per year
("Card Key Payment").
(b) Subtenant will pay the Card Key Payment to Sublandlord
in monthly installments together with the installment of Base Rent.
(c) Upon the Expiration Date or earlier termination of this
Sublease, Subtenant will return the Card Key System to Sublandlord in the
condition existing on the Commencement Date of this Sublease, subject to normal
wear and tear.
5. Use and Occupancy.
5.1 Use. The Subleased Premises shall be used for general office
use, and for no other purpose.
5.2 Compliance with Master Lease.
(a) Subtenant agrees that it will occupy the Subleased
Premises in accordance with the terms of the Master Lease and will not suffer
to be done or omit to do any act which will result in a violation of or a
default under any of the terms and conditions of the Master Lease, including,
without limitation, surrendering possession of the Subleased Premises to
Sublandlord no later than the expiration or termination date of the Master
Lease, or render Sublandlord liable for any damage, charge or expense
thereunder. Subtenant further covenants and agrees to indemnify Sublandlord
against and hold Sublandlord harmless from any claim, demand, action,
proceeding, suit, liability, loss, judgment, expense (including attorneys fees)
and damages of any kind or nature whatsoever arising out of, by reason of, or
resulting from, Subtenant's failure to perform or observe any of the terms and
conditions of the Master Lease (to the extent that Subtenant is obligated
hereby to perform such matters) or this Sublease. Any other provision in this
Sublease to the contrary notwithstanding, Subtenant shall pay to Sublandlord as
Rent hereunder any and all sums which Sublandlord may be required to pay the
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Landlord arising out of a request by Subtenant for additional Building services
from Landlord (e.g., charges associated with after-hour HVAC usage and
overstandard electrical charges).
(b) Subtenant agrees that Sublandlord shall not be required to
perform any of the covenants, agreements and/or obligations of Landlord under
the Master Lease and, insofar as any of the covenants, agreements and
obligations of Sublandlord hereunder are required to be performed under the
Master Lease by Landlord thereunder, Subtenant required to be performed under
the Master Lease by Landlord thereunder, Subtenant acknowledges and agrees that
Sublandlord shall be entitled to look to Landlord for such performance.
Sublandlord shall not be responsible for any failure or interruption, for any
reason whatsoever, of the services or facilities that may be appurtenant to or
supplied at the Building by Landlord or otherwise, including, without
limitation, heat, air conditioning, ventilation, life-safety, water,
electricity, elevator service and cleaning service, if any; and no failure to
furnish, or interruption of, any such services or facilities shall give rise to
any (i) abatement, diminution or reduction of Subtenant's obligations under
this Sublease, or (ii) liability on the part of Sublandlord. Notwithstanding
the foregoing, Sublandlord shall promptly take such action as may reasonably be
indicated, under the circumstances, to secure such performance upon Subtenant's
request to Sublandlord to do so and shall thereafter diligently prosecute such
performance on the part of Landlord.
(c) In the event that Subtenant holds over after the Expiration
Date, Sublandlord shall have the same rights and remedies against Subtenant as
Landlord has against Sublandlord under the Master Lease and, in addition to any
damages, costs and expenses incurred by Sublandlord as a result of such holding
over, Subtenant shall be liable to Sublandlord for all damages and payments
that Sublandlord is liable for under the Master Lease.
5.3 Subtenant shall have the same rights of signage as provided to
Sublandlord under the Master Lease and subject to the same terms and
conditions. Subtenant shall remove its signs and restore the Building and
Premises at its sole cost and expense upon the Expiration Date or earlier
termination of this Sublease. Sublandlord shall remove its sign from the
Building in a commercially reasonable time period.
6. Master Lease and Sublease Terms.
6.1 Subtenant acknowledges that Subtenant has reviewed and is
familiar with all of the terms, agreements, covenants and conditions of the
Master Lease, a copy of which is attached to this Sublease as Exhibit C.
6.2 This Sublease is and shall be at all times subject and
subordinate to the Master Lease.
6.3 The terms, conditions and respective obligations of Sublandlord
and Subtenant to each other under this Sublease shall be the terms and
conditions of the Master Lease except for those provisions of the Master Lease
which are directly contradicted by this Sublease in which event the terms of
the Sublease document shall control over the Master Lease. Therefore, for the
purposes of this Sublease, wherever in the Master Lease the word "Landlord" is
used it shall be deemed to mean the Sublandlord herein and wherever in the
Master Lease the word "Tenant" is used it shall be deemed to mean the Subtenant
herein. The time limits
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contained in the Master Lease for the giving of notices, making of demands or
performing of any act, condition or covenant on the part of the tenant
thereunder, or for the exercise by the tenant thereunder of any right, remedy
or option, are changed for the purposes of incorporation herein by reference by
shortening the same in each instance by three days, so that in each instance
Subtenant shall have three days less time to observe or perform hereunder than
Sublandlord has as the tenant under the Master Lease. The time limits contained
in the Master Lease for the giving of notices, making of demands or performing
of any act, condition or covenant on the part of Landlord, or for the exercise
by Landlord of any right, remedy or option, are changed for the purposes of
incorporation herein by reference by doubling the same in each instance, so that
in each instance Sublandlord shall have twice as much time to observe or perform
hereunder than Landlord has under the Master Lease. Any non-liability, release,
indemnity or hold harmless provision in the Master Lease for the benefit of
Landlord that is incorporated herein by reference, shall be deemed to inure to
the benefit of Sublandlord, Landlord, and any other person intended to be
benefited by said provision, for the purpose of incorporation by reference in
this Sublease. Any right of Landlord under the Master Lease of access or
inspection and any right of Landlord under the Master Lease to do work in the
Master Lease Premises or in the Building and any right of Landlord under the
Master Lease in respect of rules and regulations, which is incorporated herein
by reference, shall be deemed to inure to the benefit of Sublandlord, Landlord,
and any other person intended to be benefited by said provision, for the
purpose of incorporation by reference in this Sublease.
6.4 Sublessee shall be able to assign and/or sub sublet the Sublease
Premises as and to the extent permitted in accordance with the terms of the
Master Lease. In no event shall any such assignment and/or sub sublease be
effective unless consented to by landlord and Sublandlord except as otherwise
provided in the Master Lease. Except with respect to an assignment or
subletting permitted automatically pursuant to Section 6.2 of the Master Lease,
Sublandlord shall have the right to recapture the Premises (or the portion of
the Premises being sublet) in lieu of consenting to an assignment or subletting.
6.5 For the purposes of incorporation herein, the terms of the Master
Lease are subject to the following additional modifications:
(a) In all provisions of the Master Lease (under the terms thereof
and without regard to modifications thereof or purposes of incorporation into
this Sublease) requiring the approval or consent of Landlord, Subtenant shall
be required to obtain the approval or consent of both Sublandlord and Landlord
(subject to the duties assumed hereunder on the part of Sublandlord to obtain
or participate in obtaining consent from Landlord).
(b) In all provisions of the Master Lease requiring Tenant to
submit, exhibit to, supply or provide Landlord with evidence, certificates, or
any other matter or thing, Subtenant shall be required to submit, exhibit to,
supply or provide, as the case may be, the same to both Landlord and
Sublandlord. In any such instance, Sublandlord shall determine if such
evidence, certificate or other matter or thing shall be satisfactory.
(c) Sublandlord shall have no obligation to restore or rebuild any
portion of the Sublease Premises after any destruction or taking by eminent
domain.
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(d) In all provisions of the Master Lease requiring Tenant to
designate Landlord as an additional or named insured on its insurance policy,
Subtenant shall be required to so designate Landlord and Sublandlord on its
insurance policy.
6.6 During the Term and for all periods subsequent thereto with
respect to obligations which have arisen prior to the termination of this
Sublease, Subtenant agrees to perform and comply with, for the benefit of
Sublandlord and Landlord, the obligations of Sublandlord under the Master Lease
which pertains to the Subleased Premises and/or this Sublease, except for those
provisions of the Master Lease which are directly contradicted by or in
contravention of this Sublease, in which event the terms of this Sublease
document shall control over the Master Lease. Notwithstanding the foregoing,
Subtenant's financial responsibilities hereunder shall be determined wholly by
the terms and conditions of this Sublease, and Subtenant shall not under any
circumstances become liable or responsible for meeting Sublandlord's financial
or other obligations under the Master Lease.
7. Termination of Master Lease. If for any reason the term of the Master
Lease shall terminate prior to the scheduled Expiration Date, this Sublease
shall thereupon be terminated and Sublandlord shall not be liable to Subtenant
by reason thereof unless (i) Subtenant shall not then be in default hereunder
beyond any applicable notice and cure period and (ii) such termination shall
have been effected because of the breach or default of Sublandlord under the
Master Lease or by reason of the voluntary termination or surrender of the
Master Lease by Sublandlord.
8. Indemnity.
8.1 Subtenant shall indemnify, defend and hold harmless Sublandlord
from and against all losses, costs, damages, expenses and liabilities,
including without limitation, reasonable attorneys' fees and disbursements,
which Sublandlord may incur or pay out (including, without limitation, to the
landlord under the Master Lease) by reason of (i) any accidents, damages or
injuries to persons or property occurring in the Subleased Premises (unless the
same shall have been caused by Sublandlord's negligence or wrongful act or the
negligence or wrongful act of the landlord under the Master Lease), (ii) any
breach or default hereunder on Subtenant's part (provided, that any applicable
notice has been given, and any applicable cure period has expired without cure
by Subtenant), (iii) any work done after the date hereof in or to the Subleased
Premises except if done by Sublandlord or the landlord under the Master Lease,
or (iv) any act, omission or negligence on the part of Subtenant and/or its
officers, partners, employees, agents, Clients, invitees, or any person
claiming through or under Subtenant.
8.2 Sublandlord shall not be liable for personal injury or property
damage to Subtenant, its officers, agents, employees, invitees, guests, Clients,
licensees or any other person which takes place in the Sublease Premises, unless
such injury or damage is caused by or results from Sublandlord's negligence,
willful wrongdoing, or breach of the provisions of this Sublease. Any property
of Subtenant kept or stored in the Sublease Premises shall be kept or stored at
the sole risk of Subtenant.
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9. Consents.
9.1 Under the Master Lease, Sublandlord must obtain the consent of
Landlord to any subletting. This Sublease shall not be effective unless, on or
before the time provided in the Master Lease for Landlord to approve a
subletting, this Sublease is signed by both Sublandlord and Subtenant, Landlord
signs and delivers to Sublandlord and Subtenant a consent to this Sublease
thereby giving Landlord's consent to this subletting.
9.2 In any instance when Sublandlord's consent or approval is
required under this Sublease, Sublandlord's refusal to consent to or approve
any matter or thing shall be deemed reasonable if, among other matters, such
consent or approval is required under the provisions of the Master Lease
incorporated herein by reference but has not been obtained from Landlord.
Except as otherwise provided herein, Sublandlord shall not unreasonably
withhold, or delay its consent to or approval of a matter if such consent or
approval is required under the provisions of the Master Lease and Landlord has
consented to or approved of such matter.
10. Attorney's Fees. If Sublandlord or Subtenant brings an action to
enforce the terms hereof or to declare rights hereunder, the prevailing party
shall be entitled to its reasonable attorney's fees to be paid by the losing
party as fixed by the Court.
11. Subtenant's Work:
11.1 Generally. Except for touch up painting of the Premises and
shampooing the carpet throughout the Premises, without, however, any obligation
to move any furniture, furnishings or equipment, Sublandlord shall deliver, and
Subtenant shall accept, possession of the Subleased Premises in their "AS-IS"
condition as the Subleased Premises exists on the date hereof.
11.2 As-Is. In making and executing this Sublease, Subtenant has
relied solely on such investigations, examinations and inspections as Subtenant
has chosen to make or has made and has not relied on any representation or
warranty concerning the Subleased Premises or the Building, except as expressly
set forth in this Sublease. Subtenant acknowledges that Sublandlord has
afforded Subtenant the opportunity for full and complete investigations,
examinations and inspections of the Subleased Premises and the common areas of
the Building. Subtenant acknowledges that it is not authorized to make or do
any alterations or improvements in or to the Subleased Premises except as
permitted by the provisions of this Sublease and the Master Lease. Upon
termination of this Sublease, Subtenant shall deliver the Subleased Premises to
Sublandlord broom clean and in the same condition as the Subleased Premises
were at the commencement of the Term hereof, reasonable wear and tear excepted.
In the event that Subtenant is allowed to make any improvements or alterations
to the Subleased Premises, including without limitation, additional wiring or
cabling ("Alterations"), Subtenant will, at its sole cost and expense, remove
all Alterations from the Subleased Premises and restore the Subleased Premises
to the condition existing as of the Commencement Date, except for any
Alterations which Sublandlord and Master Landlord agree may remain thereon. In
addition, Subtenant will remove its personal property, furniture and equipment
from the Subleased Premises upon the expiration of the term of this Sublease.
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11.3 Code-Required Work. If the performance of the Subtenant
Improvements within the Subleased Premises "triggers" a requirement for
code-related upgrades to or improvements of the Master Lease Premises or any
common areas, Sublandlord and Subtenant agree that Subtenant shall be
responsible for the additional cost of such code-related upgrade or
improvements.
12. Security Deposit
12.1 Upon the execution of this Sublease, Subtenant shall deliver a
cash deposit in the amount of $64,791.00 to Sublandlord as a Security Deposit.
12.2 Within five (5) business days after receipt of Landlord's
approval of this Sublease, Subtenant shall deliver to Sublandlord as security
for the faithful performance of all of its obligations under this Sublease, a
cash deposit or Letter of Credit (as defined below) in the amount of
$300,000.00 (the cash deposit and the Letter of Credit are collectively
referred to as the "Deposit"). A failure by Subtenant to deliver such letter of
credit, containing the exact terms and conditions set forth herein shall
constitute an event of default by Subtenant under this Sublease. Provided that
an Event of Default has not occurred with respect to Subtenant during the Term,
(i) the Letter of Credit shall be reduced on the first day of the twenty-fifth
month of the Term to the amount of $150,000 and (ii) in the event that
Subtenant has a public offering of stock on either the New York Stock Exchange,
the American Stock Exchange or Nasdaq and as a result of such public offering,
Subtenant is able to provide evidence reasonably satisfactory to Sublandlord to
demonstrate that it has achieved a market capitalization of $200,000,000.00,
the letter of credit shall be returned to Subtenant.
12.3 Letter of Credit means an unconditional, irrevocable sight
draft letter of credit issued by a San Francisco office of a bank reasonably
satisfactory to Sublandlord, naming Sublandlord as beneficiary and otherwise in
form and substance reasonably satisfactory to Sublandlord. The Letter of Credit
shall be for a one-year term and shall provide: (i) that Sublandlord may make
partial and multiple draws thereunder in amounts necessary to cure any events of
default with respect to Subtenant, (ii) that Sublandlord may draw upon the
Letter of Credit up to the full amount and the bank will honor a sight draft of
Sublandlord without any documents or certifications other than a written
statement by Sublandlord stating that it is entitled to draw upon the Letter of
Credit in accordance with the terms of this Sublease, (iii) that in the event
of Sublandlord's assignment or other transfer of its interest in this Sublease,
the Letter of Credit shall be freely transferable by Sublandlord, without
charge and without recourse to the assignee or transferee of such interest and
the bank shall confirm the same to Sublandlord and such assignee or transferee,
and (iv) the Letter of Credit will be automatically renewed upon the expiration
of its term for additional one year periods.
12.4 Notwithstanding the foregoing, if the bank does not confirm the
extension of the Letter of Credit at least 30 days prior to the relevant annual
expiration date or if Subtenant does not substitute a replacement Letter of
Credit by such date, Sublandlord shall be entitled to draw on the Letter of
Credit and to hold such funds as the Deposit. Sublandlord shall not be required
to segregate the Letter of Credit from its other assets and no interest shall
accrue or be payable to Subtenant with respect thereto.
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12.5 If Subtenant fails to pay rent or other charges due under the
Sublease, or if an Event of Default (as defined in the Master Lease) otherwise
occurs with respect to any provision of the Sublease, Sublandlord may at its
sole option apply or retain all or any portion of the Deposit for the payment
of any rent or other charges in default or the payment of any other sum to
which Sublandlord may become entitled by 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 the Deposit, then within
ten (10) days after demand therefor Subtenant shall deposit cash or a Letter of
Credit with Sublandlord in an amount sufficient to restore the amount thereof,
and Subtenant's failure to do so shall be a material breach of the Sublease.
Sublandlord's application or retention of the Deposit shall not constitute a
waiver of Subtenant's default to the extent that the Deposit does not fully
compensate Sublandlord for all losses or damages incurred by Sublandlord in
connection with such default and shall not prejudice any other rights or
remedies available to Sublandlord under the Sublease or by law. Sublandlord
shall not be required to keep the Deposit separate from its general accounts. If
Subtenant performs all of Subtenant's obligations under the Sublease, including
its obligations with respect to its leasing of the Personal Property, the
Deposit, or so much thereof as has not theretofore been applied by Sublandlord,
shall be returned, without payment of interest or other increment for its use,
to Subtenant (or, at Sublandlord's option, to the last assignee, if any, of
Subtenant's interest under the Sublease) within thirty (30) days after the
later of (i) expiration of term of the Sublease or (ii) vacation of the
Premises by Subtenant. No trust relationship is created between Sublandlord and
Subtenant with respect to the deposit.
13. Notices. Any notice by either party to the other required, permitted
or provided for herein shall be valid only if in writing and shall be deemed to
be duly given only if (a) delivered personally, or (b) sent by means of Federal
Express, UPS Next Day Air or another reputable express mail delivery service
guaranteeing next day delivery addressed (i) if to Sublandlord, at the
following addresses:
Autodesk, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Real Estate and Facilities
With a copy to:
Shartsis, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
and (ii) if the Subtenant, at the following addresses:
At the Premises
or at such other address for either party as that party may designate by notice
to the other. A notice shall be deemed given and effective, if delivered
personally, upon hand delivery thereof (unless such delivery takes place after
hours or on a holiday or weekend, in which event the
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notice shall be deemed given on the next succeeding business day), if sent via
overnight courier, on the business day next succeeding delivery to the courier.
14. Complete Agreement. There are no representations, warranties,
agreements, arrangements or understandings, oral or written, between the
parties or their representatives relating to the subject matter of this
Sublease which are not fully expressed in this Sublease. This Sublease cannot be
changed or terminated nor may any of its provisions be waived orally or in any
manner other than by a written agreement executed by both parties.
15. Interpretation. Irrespective of the place of execution or
performance, this Sublease shall be governed by and construed in accordance with
the laws of the State of California. If any provision of this Sublease or the
application thereof to any person or circumstance shall, for any reason and to
any extent, be invalid or unenforceable, the remainder of this Sublease and the
application of that provision to other persons or circumstances shall not be
affected but rather shall be enforced to the extent permitted by law. The table
of contents, captions, headings and titles, if any, in this Sublease are solely
for convenience or reference and shall not affect its interpretation. This
Sublease shall be construed without regard to any presumption or other rule
requiring construction against the party causing this Sublease or any part
thereof to be drafted. If any words or phrases in this Sublease shall have been
stricken out or otherwise eliminated, whether or not any other words or phrases
have been added, this Sublease shall be construed as if the words or phrases so
stricken out or otherwise eliminated were never included in this Sublease and
no implication or inference shall be drawn from the fact that said works or
phrases were so stricken out or otherwise eliminated. Each covenant, agreement,
obligation or other provision of this Sublease shall be deemed and construed as
a separate and independent covenant of the party bound by, undertaking or
making same, not dependent on any other provision of this Sublease unless
otherwise expressly provided. All terms and words used in this Sublease,
regardless of the number or gender in which they are used, shall be deemed to
include any other number and any other gender as the context may require. The
work "person" as used in this Sublease shall mean a natural person or persons,
a partnership, a corporation or any other form of business or legal association
or entity.
16. Counterparts. This Sublease may be executed in separate
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same instrument. This Sublease shall be
fully executed when each party whose signature is required has signed and
delivered to each of the parties at least one counterpart, even though no
single counterpart contains the signatures of all parties hereto.
17. Brokers. Subtenant represents that, except for Subtenant's broker,
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, and Sublandlord's broker, Colliers International,
Subtenant has not dealt with any real estate broker, sales person, or finder
in connection with this Sublease, and no such person initiated or participated
in the negotiation of this Sublease, or showed the Subleased Premises to
Subtenant. Subtenant hereby agrees to indemnify, protect, defend and hold
Sublandlord harmless from and against any and all liabilities and claims for
commissions and fees arising out of a breach of the foregoing representation.
Sublandlord agrees to pay any commission to which Colliers International and
▇▇▇▇▇▇▇ & Wakefield are entitled in connection with this Sublease pursuant to a
separate written agreement with such brokers.
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IN WITNESS WHEREOF, the parties hereto hereby execute this Sublease as of
the day and year first above written.
SUBLANDLORD: SUBTENANT:
AUTODESK, INC., OBJECTSWITCH, INC.,
a Delaware corporation a California corporation,
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------- --------------------------------
Print Name ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Print Name ▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------- ------------------------
Title SRVP CFO Title Vice President - Finance
-------------------------- -----------------------------
By
--------------------------------
Print Name
------------------------
Title
-----------------------------
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13
EXHIBIT A
DESCRIPTION OF 1ST FLOOR PREMISES
[INTENTIONALLY OMITTED.]
12
14
EXHIBIT A
DESCRIPTION OF 2ND FLOOR PREMISES
[INTENTIONALLY OMITTED.]
13
15
EXHIBIT C
COPY OF MASTER LEASE
[Intentionally Omitted.]
15