Exhibit 10(e)
AMENDMENT TO STANDARD SUBLEASE
THIS AMENDMENT TO STANDARD SUBLEASE (the "Amendment"), is entered into
as of March __, 2004, by and between BRADCO INTERNATIONAL, LTD., a California
corporation ("Sublessee") and SPARKS EXHIBITS & ENVIRONMENTS, LTD., a California
corporation ("Sublessor"), with reference to the following facts:
A. Sublessor and Sublessee are all of the parties to that certain
Sublessee Agreement dated as of March 22, 2002 (the "Sublease"), wherein
Sublessor subleased to Sublessee approximately 25,000 square feet of real
property ("Premises") located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
having located thereon a single industrial building (the "Building") containing
approximately 150,159 square feet of space .
B. Subsequent to execution of the Sublease, Sublessee's business
requirements changed and Sublessee requested that Sublessor assist Sublessee in
terminating the Sublease.
C. Sublessor and its landlord ("Landlord") have negotiated a Fourth
Amendment to Lease ("Option"), in the form attached hereto as Exhibit A,
granting Sublessor an option to terminate its Lease for the portion of the
Building constituting the Premises.
D. Sublessor and Sublessee desire to memorialize in writing the terms
and conditions upon which Sublessor and Sublessee will mutually cooperate and
undertake to exercise the Option and pay for the Option termination fee as
provided in the Fourth Amendment.
NOW, THEREFORE, in consideration of the mutual covenants, agreements
and undertakings contained in this Amendment and the exchange of other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Definitions. Unless defined in this Amendment, or except as
otherwise expressly provided in this Amendment, capitalized terms utilized in
this Amendment shall have the meanings ascribed to such terms in the Sublease,
or the Option, as applicable.
2. Acknowledgement. Sublessee hereby acknowledges receipt of the Option.
3. Sublessee's Contribution; Undertakings Regarding Option. The Option
requires that Sublessor pay Landlord the sum of $100,000 ("Payment"), in
accordance with the terms and conditions of the Option. Sublessee hereby directs
Sublessor to exercise the Option and Sublessee agrees to pay the sum of $100,000
to Sublessor in a timely manner to allow Sublessor to make the Payment to the
Landlord. Sublessee agrees to physically vacate the Premises no later than April
30, 2004 and to leave the Premises in broom clean condition and as otherwise
required by the Sublease.
4. Agreement to Terminate Sublease; Effectiveness. Sublessor agrees
with Sublessee that, (i) upon payment in full by Sublessee of the sum of
$100,000 in accordance with the provisions of Section 3 of this Amendment, (ii)
actual vacancy of the Premises by Sublessee no later than April 30, 2004, (iii)
compliance, in full, with all other terms and conditions set forth in this
Amendment, and (iv) fulfillment by Sublessor and Landlord of all of the terms
and conditions of the Option, (as to which Sublessor agrees to use its best
efforts (A) to fulfill Sublessor's obligations, and (B) to cause Landlord to
fulfill Landlord's obligations) the Sublessee shall, with no further action of
the parties, be terminated effective April 30, 2004. Sublessor and Sublessee
shall execute a written instrument in the form of Exhibit B, acknowledging
termination of the Sublease in accordance with the provisions set forth above in
this Section 4. Notwithstanding such termination, Sublessee shall remain liable
for payment of all rent and performance of all other obligations under the
Sublease for the period through April 30, 2004.
5. Amendment; Confirmation; Interpretation. To the extent, but only to
the extent, necessary to give effect to this Amendment, the Sublessee is deemed
amended and modified. Except to the limited extent amended and modified hereby,
the Sublease is ratified and confirmed in all respects and remains extant and in
full force and effect.
6. No Agency. Sublessor and Sublessee hereby acknowledge and agree that
there is no agency relationship between Sublessor and Sublessee, either created
by this Amendment or otherwise.
7. Indemnification.
7.1 By Sublessee. Sublessee hereby agrees to indemnify and
hold Sublessor, and the property and assets of Sublessor, harmless, from and
against any and all liabilities, damages, losses, costs, expenses, attorneys'
fees and claims arising out of, resulting from or related to any breach or
default by Sublessee in the payment or performance of any of Sublessee's
agreements, promises, undertakings, obligations, responsibilities and/or
liabilities under and by reason of this Amendment, including specifically but
not by way of limitation, Sublessee's failure to vacate the Premises or to make
the Payment and/or otherwise to affect adversely Sublessor's efforts to perform
its responsibilities and obligations respecting the Option.
7.2 By Sublessor. Sublessor hereby agrees to indemnify and
hold Sublessee, and the property and assets of Sublessee, harmless, from and
against any and all liabilities, damages, losses, costs, expenses, attorneys'
fees and claims arising out of, resulting from or related to any breach or
default by Sublessor in the payment or performance of Sublessor's agreements,
promises, undertakings, obligations, responsibilities and/or liabilities under
and by reason of this Amendment.
8. General Provisions.
8.1 Further Assurances. Each party hereto agrees to perform
any further acts and execute and deliver any further documents that may be
reasonably necessary to effectuate the provisions of this Amendment.
8.2 Counterparts; Fax Signatures. This Amendment may be
executed in one or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument.
Facsimile signatures shall have the same force and effect as original
signatures.
8.3 Severability. If any provisions, or portions thereof, of
this Amendment or the application thereof are held to be unenforceable or
invalid by any court of competent jurisdiction, the remainder of this Amendment
shall not be affected thereby and to this end only the provisions of this
Amendment are declared severable.
8.4 Successors and Assigns. Subject to the provisions of
Section 8.10 of this Amendment, all terms of this Amendment shall be binding on
and shall inure to the benefit of and be enforceable by the parties hereto and
their respective heirs, legal representatives, successors and assigns.
8.5 Governing Law; Venue. This Amendment shall be governed by,
construed and enforced in accordance with the laws of the State of California
and is to be performed in San Diego County, California and any action or other
proceeding brought to enforce or interpret this Amendment shall be brought in
San Diego County, California.
8.6 Waiver. No waiver of any of the provisions of this
Amendment shall be deemed, or shall constitute, a waiver of any other provision,
whether or not similar, nor shall any waiver constitute a continuing waive. No
failure to enforce any right or provision hereunder shall preclude or affect the
later enforcement of such right or provision. No waiver shall be binding unless
executed by the party making the waiver.
8.7 Time. Time is of the essence with respect to the
performance by each party of its rights and obligations hereunder.
8.8 Attorneys' Fees. In the event any attorney is employed by
either party to this Amendment with regard to any legal action, arbitration or
other proceeding brought by either party for the enforcement or interpretation
of this Amendment, or because of any alleged dispute, breach, default, or
misrepresentation involving any provisions of this Amendment, the party
prevailing in any such proceeding shall be entitled to recover reasonable
attorneys' fees and other costs and expenses incurred, in addition to any other
relief to which it may be entitled.
8.9 No Joint Venture. The parties hereto are independent of
one another and no joint venture, partnership or other collaborative venture is
intended or implied by the provisions of this Amendment.
8.10 Assignment. Neither party may assign this Amendment nor
any of its respective rights, liabilities and obligations under this Amendment
without the prior written consent of the other party, which may be given or
withheld in such party's sole and unreviewable discretion.
8.11 Entire Agreement. This Amendment, together with the
Sublease as amended, constitutes the entire agreement between the parties
pertaining to the subject matter contained in this Amendment and supersedes all
prior and contemporaneous agreements, representations and understandings of the
parties with respect thereto. There are no representations, warranties,
agreements or understandings, express or implied, written or oral between the
parties hereto relating to the subject matter of this Amendment which are not
fully expressed herein and/or in the Sublease.
8.12 Amendment. No supplement, amendment, modification,
discharge or change of this Amendment shall be binding unless executed in
writing by all of the parties.
8.13 Authority. If a party to this Amendment is a corporation
or other entity which is not a natural person, each individual executing this
Amendment on behalf of said corporation or other entity represents and warrants
that he is duly authorized to execute and deliver this Amendment on behalf of
said corporation or other entity in accordance with a duly adopted resolution of
the board of directors of such corporation or the governing authority of such
other entity or in accordance with the bylaws of such corporation or governing
instrument(s) of such other entity, and that this Amendment is binding upon such
corporation or other entity in accordance with its terms.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first set forth above.
Sublessee: Sublessor:
BRADCO INTERNATIONAL, LTD SPARKS EXHIBITS & ENVIRONMENTS, LTD.
a California corporation a California corporation
By: ____________________________ By:________________________________
[Signature] [Signature]
____________________________ ________________________________
[Print Name and Title] [Print Name and Title]
EXHIBIT A
OPTION
EXHIBIT B
SECOND AMENDMENT AND TERMINATIN OF SUBLEASE
THIS SECOND AMENDMENT TO STANDARD SUBLEASE (the "Amendment"), is
entered into as of _________, 2004, by and between BRADCO INTERNATIONAL, LTD., a
California corporation ("Sublessee") and SPARKS EXHIBITS & ENVIRONMENTS, LTD., a
California corporation ("Sublessor"), with reference to the following facts:
A. Sublessor and Sublessee are all of the parties to that certain
Sublessee Agreement dated as of March 22, 2002 (the "Sublease"), wherein
Sublessor subleased to Sublessee approximately 25,000 square feet of real
property ("Premises") located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
having located thereon a single industrial building (the "Building") containing
approximately 150,159 square feet of space .
B. Sublessee and Sublessor have previously entered into that certain
Amendment to Standard Sublease dated as of March __, 2004 (the "First
Amendment"), whereby Landlord and Tenant have agreed to mutually cooperate and
undertake to perform certain obligations with respect to the Premises.
NOW, THEREFORE, in consideration of the mutual covenants, agreements
and undertakings contained in this Second Amendment and the exchange of other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Mutual Partial Termination of the Lease; Effective Date. Pursuant
to, and in accordance with, Section 4 of the First Amendment ("Section 4"),
Landlord and Tenant hereby agree and acknowledge that effective as of _______,
2004 (the "Effective Date"), the Sublease is terminated. Notwithstanding
termination of the Sublease as of the Effective Date, the last sentence of
Section 4 of the First Amendment shall remain in full force and affect.
2. General Provisions.
2.1 Further Assurances. Each party hereto agrees to perform
any further acts and execute and deliver any further documents that may be
reasonably necessary to effectuate the provisions of this Second Amendment.
2.2 Counterparts; Fax Signatures. This Second Amendment may be
executed in one or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument.
Facsimile signatures shall have the same force and effect as original
signatures.
2.3 Severability. If any provisions, or portions thereof, of
this Second Amendment or the application thereof are held to be unenforceable or
invalid by any court of competent jurisdiction, the remainder of this Second
Amendment shall not be affected thereby and to this end only the provisions of
this Second Amendment are declared severable.
2.4 Successors and Assigns. Subject to the provisions of
Section 5.10 of this Second Amendment, all terms of this Second Amendment shall
be binding on and shall inure to the benefit of and be enforceable by the
parties hereto and their respective heirs, legal representatives, successors and
assigns.
2.5 Governing Law; Venue. This Second Amendment shall be
governed by, construed and enforced in accordance with the laws of the State of
California and is to be performed in San Diego County, California and any action
or other proceeding brought to enforce or interpret this Second Amendment shall
be brought in San Diego County, California.
2.6 Waiver. No waiver of any of the provisions of this Second
Amendment shall be deemed, or shall constitute, a waiver of any other provision,
whether or not similar, nor shall any waiver constitute a continuing waiver. No
failure to enforce any right or provision hereunder shall preclude or affect the
later enforcement of such right or provision. No waiver shall be binding unless
executed by the party making the waiver.
2.7 Time. Time is of the essence with respect to the
performance by each party of its rights and obligations hereunder.
2.8 Attorneys' Fees. In the event any attorney is employed by
either party to this Second Amendment with regard to any legal action,
arbitration or other proceeding brought by either party for the enforcement or
interpretation of this Second Amendment, or because of any alleged dispute,
breach, default, or misrepresentation involving any provisions of this Second
Amendment, the party prevailing in any such proceeding shall be entitled to
recover reasonable attorneys' fees and other costs and expenses incurred, in
addition to any other relief to which it may be entitled.
2.9 No Joint Venture. The parties hereto are independent of
one another and no joint venture, partnership or other collaborative venture is
intended or implied by the provisions of this Second Amendment.
2.10 Assignment. Neither party may assign this Second
Amendment nor any of its respective rights, liabilities and obligations under
this Second Amendment without the prior written consent of the other party,
which may be given or withheld in such party's sole and unreviewable discretion.
2.11 Entire Agreement. This Second Amendment, together with
the First Amendment and the Sublease, constitutes the entire agreement between
the parties pertaining to the subject matter contained in this Second Amendment
and supersedes all prior and contemporaneous agreements, representations and
understandings of the parties with respect thereto. There are no
representations, warranties, agreements or understandings, express or implied,
written or oral between the parties hereto relating to the subject matter of
this Second Amendment which are not fully expressed herein, in the First
Amendment and/or the Lease.
2.12 Amendment. No supplement, amendment, modification,
discharge or change of this Second Amendment shall be binding unless executed in
writing by all of the parties.
2.13 Authority. If a party to this Second Amendment is a
corporation or other entity which is not a natural person, each individual
executing this Second Amendment on behalf of said corporation or other entity
represents and warrants that he is duly authorized to execute and deliver this
Second Amendment on behalf of said corporation or other entity in accordance
with a duly adopted resolution of the board of directors of such corporation or
the governing authority of such other entity or in accordance with the bylaws of
such corporation or governing instrument(s) of such other entity, and that this
Second Amendment is binding upon such corporation or other entity in accordance
with its terms.
IN WITNESS WHEREOF, the parties have executed this Second Amendment as
of the date first set forth above.
Landlord: Tenant:
BRADCO INTERNATIONAL, LTD. SPARKS EXHIBITS & ENVIRONMENTS, LTD.,
a California corporation a California corporation
By:____________________________ By: ________________________
[Signature] [Signature]
____________________________ ________________________
[Print Name and Title] [Print Name and Title]