EXHIBIT 10.20
AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION
STANDARD SUBLEASE
(Long-form to be used with pre-1996 AIR leases)
1. Parties. This Sublease, dated, for reference purposes only, October 22,
1999, is made by and between Thermatrix Inc. ("Sublessor") and TrueLinks, inc.,
a California corporation ("Sublessee").
2. Premises. Sublessor hereby subleases to Sublessee and Sublessee hereby
subleases from Sublessor for the term, at the rental, and upon all of the
conditions set forth herein, that certain real property, including all
improvements therein, and commonly known by the street address ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇, located in the County of Santa ▇▇▇▇▇, State of
California and generally described as (describe briefly the nature of the
property) a 4,464 rentable square foot office suite in an approximately 158,000
square foot office building. ("Premises").
3. Term.
3.1 Term. The term of this Sublease shall be for Twelve (12) months
commencing on November 1, 1999 and ending on October 29, 2000 unless sooner
terminated pursuant to any provision hereof.
3.2 Delay in Commencement. Sublessor agrees to use its best commercially
reasonable efforts to deliver possession of the Premises by the commencement
date. If, despite said efforts, Sublessor is unable to deliver possession as
agreed, Sublessor shall not be subject to any liability therefor, nor shall such
failure affect the validity of this Sublease. Sublessee shall not, however, be
obligated to pay Rent or perform its other obligations until it receives
possession of the Premises. If possession is not delivered within sixty days
after the commencement date, Sublessee may, at its option, by notice in writing
within ten days after the end of such sixty day period, cancel this Sublease, in
which event the Parties shall be discharged from all obligations hereunder. If
such written notice is not received by Sublessor within said ten-day period.
Sublessee's right to cancel shall terminate. Except as otherwise provided, if
possession is not tendered to Sublessee when required and Sublessee does not
terminate this Sublease, as aforesaid, any period of rent abatement that
Sublessee would otherwise have enjoyed shall run from the date of delivery of
possession and continue for a period equal to what Sublessee would otherwise
have enjoyed under the terms hereof, but minus any days of delay caused by the
acts of omissions of Sublessee. If possession is not delivered within 120 days
after the commencement date, this Sublease shall automatically terminate unless
the Parties agree, in writing, to the contrary.
4. Rent.
4.1 Base Rent. Sublessee shall pay to Sublessor as Base Rent for the
Premises equal monthly payments of $11,383.20, in advance, on the first day of
each month of the term hereof. Sublessee shall pay Sublessor upon the execution
hereof $11,383.20 as Base Rent for November 1, 1999 through November 30, 1999
Base Rent for any period during the term hereof which is for less than one (1)
month shall be pro rata portion of the monthly installment.
4.2 Rent Defined. All monetary obligations of Sublessee to Sublessor
under the terms of this Sublease (except for the Security Deposit) are deemed to
be rent ("Rent"). Rent shall be payable in lawful money of the United States to
Sublessor at the address stated herein or to such other persons or at such other
places as Sublessor may designate in writing.
5. Security Deposit. Sublessee shall deposit with Sublessor upon execution
hereof $11,383.20 as security for Sublessee's faithful performance of
Sublessee's obligations hereunder. If Sublessee fails to pay Rent or other
charges due hereunder, or otherwise defaults with respect to any provision of
this Sublease, Sublessor 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 Sublessor may become obligated by reason of
Sublessee's default, or to compensate Sublessor for any loss or damage which
Sublessor may suffer thereby. If Sublessor so uses or applies all or any
portion of said deposit, Sublessee shall within ten (10) days after written
demand therefore deposit cash with Sublessor in an amount sufficient to restore
said deposit to the full amount hereinabove stated and Sublessee's failure to do
so shall be a material breach of this Sublease. Sublessor shall not be required
to keep said Deposit separate from its general accounts. If Sublessee performs
all of Sublessee's obligations hereunder, said Deposit, or so much thereof as
has not therefore been applied by Sublessor, shall be returned, without payment
of interest to Sublessee (or at Sublessor's option, to the last assignee, if
any, of Sublessee's interest hereunder) at the expiration of the term hereof,
and after Sublessee has vacated the Premises. No trust relationship is created
herein between Sublessor and Sublessee with respect to said Security Deposit.
6. Use.
6.1 Agreed Use. The Premises shall be used and occupied only for general
office purposes.
6.2 Compliance. Sublessor warrants to that the improvements on the
Premises comply with all applicable covenants or restrictions of record and
applicable building codes, regulations and ordinances ("Applicable
Requirements") in effect on the commencement date. Said warranty does not apply
to the use to which Sublessee will put the Premises to any alterations or
utility installations made or to be made by Sublessee. NOTE: Sublessee is
responsible for determining whether or not the zoning is appropriate for its
intended use, and acknowledges that past uses of the Premises may no longer be
allowed. If the Premises do not comply with said warranty, Sublessor shall,
except as otherwise provided, promptly after receipt of written notice from
Sublessee setting forth with specificity the nature and extent of such non-
compliance, rectify the same at Sublessor's expense. If Sublessee does
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not give Sublessor written notice of a non-compliance with this warranty within
six months following the commencement date, correction of that non-compliance
shall be the obligation of Sublessee at its sole cost and expense. If the
Applicable Requirements are hereafter changed so as to require during the term
of this Sublease the construction of an addition to or an alteration of the
Building, the remediation of any Hazardous Substance, or the reinforcement or
other physical modification of the Building ("Capital Expenditure"), Sublessor
and Sublessee shall allocate the cost of such work as follows:
(a) If such Capital Expenditures are required as a result of the
specific and unique use of the Premises by Sublessee as compared with uses by
tenants in general. Sublessee shall be fully responsible for the cost thereof
provided, however, that if such Capital Expenditure is required during the last
two years of this Sublease and the cost thereof exceeds six months' Base Rent,
Sublessee may instead terminate this Sublease unless Sublessor notifies
Sublessee in writing, within ten days after receipt of Sublessee's termination
notice that Sublessor has elected to pay the difference between the actual cost
thereof and the amount equal to six months' Base Rent. If the Parties elect
termination, Sublessee shall immediately cease the use of the Premises which
requires such Capital Expenditure and deliver to Sublessor written notice
specifying a termination date at least ninety days thereafter. Such termination
date shall, however, in no event be earlier than the last day that Sublessee
could legally utilize the Premises without commencing such Capital Expenditure.
(b) If such Capital Expenditure is not the result of the specific and
unique use of the Premises by Sublessee (such as governmentally mandated seismic
modifications, then Sublessor shall pay for said Capital Expenditure and the
cost thereof shall be prorated between the Sublessor and Sublessee and Sublessee
shall only pay for said Capital Expenditure and the cost thereof shall be
prorated between the Sublessor and Sublessee and Sublessee shall only be
obligated to pay, each month during the remainder of the term of this Sublease,
on the date on which Rent is due, an amount equal to the product of multiplying
the cost of such Capital Expenditure by a fraction, the numerator of which is
one, and the denominator of which is the number of months of the useful life of
such Capital Expenditure as such useful life is specified pursuant to Federal
income tax regulations or guidelines for depreciation thereof (including
interest on the unamortized balance as is then commercially reasonable in the
judgment of Sublessor's accountant), with Sublessee reserving the right to
prepay its obligation at any time. Provided, however, that if such Capital
Expenditure is required during the last two years of this Sublease or if
Sublessor reasonably determines that it is not economically feasible to pay its
share thereof. Sublessor shall have the option to terminate this Sublease upon
ninety days prior written notice to Sublessee unless Sublessee notifies
Sublessor, in writing, within ten days after receipt of Sublessor's termination
notice that Sublessee will pay for such Capital Expenditure. If Sublessor does
not elect to terminate, and fails to tender its share of any such Capital
Expenditure, Sublessee may advance such funds and deduct same, with interest,
from Rent until Sublessor's share of such costs have been fully paid. If
Sublessee is unable to finance Sublessor's share, or if the balance of the Rent
due and payable for the remainder of this Sublease is not sufficient to fully
reimburse Sublessee on an offset basis, Sublessee shall have the right to
terminate this Sublease upon ten days written notice to Sublessor.
(c) Notwithstanding the above, the provisions concerning Capital
Expenditures are intended to apply only to non-voluntary, unexpected, and new
Applicable Requirements. If the Capital Expenditures are instead triggered by
Sublessee as a result of an actual or proposed change in use, change in
intensity of use, or modification to the Premises then, and in that event,
Sublessee shall be fully responsible for the cost thereof, and Sublessee shall
not have any right to terminate this Sublease.
6.3 Acceptance of Premises and Lessee. Sublessee acknowledges that:
(a) It has been advised by Brokers to satisfy itself with respect to
the condition of the Premises (including but not limited to the electrical, HVAC
and fire sprinkler systems, security, environmental aspects, and compliance with
Applicable Requirements), and their suitability for Sublessee's intended use.
(b) Sublessee has made such investigation as it deems necessary with
reference to such matters and assumes all responsibility therefor as the same
relate to its occupancy of the Premises, and
(c) Neither Sublessor, Sublessor's agents, nor any Broker has made any
oral or written representations or warranties with respect to said matters other
than as set forth in this Sublease.
In addition, Sublessor acknowledges that:
(a) Broker has made no representations, promises or warranties
concerning Sublessee's ability to honor the Sublease or suitability to occupy
the Premises, and
(b) It is Sublessor's sole responsibility to investigate the financial
capability and/or suitability of all proposed tenants.
7. Sublease dated May 7, 1998.
7.1 Sublessor is the sublessee of the Premises by virtue of a lease
hereinafter referred to as the Sublease dated May 7, 1998, a copy of which is
attached hereto marked Exhibit 1, wherein Clinimetrics Research Associates, Inc.
is the Sublessor and Thermatrix, Inc. is the Sublessee. Clinimetrics Research
Associates, Inc. is the Lessee of the Premises by virtue of a lease hereinafter
referred to as the "Master Lease," dated September 16, 1996, a copy of which is
attached hereto as Exhibit 2, wherein ▇▇▇▇▇▇▇▇▇▇▇ Investment & Development is
the lessor, hereinafter the "Master Lessor."
7.2 This Sublease is and shall be at all times subject and subordinate to
the Master Lease and Sublease dated May 7, 1998.
7.3 The terms, conditions and respective obligations of Sublessor and
Sublessee to each other under this Sublease shall be the terms and conditions of
the Master Lease and Sublease dated May 7, 1998 except for those provisions of
the Master Lease and Sublease dated May 7, 1998 which are directly contradicted
by this Sublease in which event the terms of this Sublease document shall
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control over the Master Lease and Sublease dated May 7, 1998. Therefore, for
the purposes of this Sublease, wherever in the Master Lease and Sublease dated
May 7, 1998, the word "Lessor" is used, it shall be deemed to mean the Sublessor
herein and wherever in the Master Lease and Sublease dated May 7, 1998 the word
"Lessee" is used, it shall be deemed to mean the Sublessee herein.
7.4 During the term of this Sublease and for all periods subsequent for
obligations which have arisen prior to the termination of this Sublease,
Sublessee does hereby expressly assume and agree to perform and comply with, for
the benefit of Sublessor and Master Lessor, each and every obligation of
Sublessor under the Master Lease and Sublease dated May 7, 1998, except for the
following paragraph which are excluded therefrom:
Of the Master Lease: 4.1 Rent; 4.2 (Operating Expenses); 4.3 C.P.I.
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Increases; 5. Security Deposit; 6.1 Use; 7.2(b) Delivery Upon Termination; 10.l
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Real Estate Taxes; 13.4 Late Charges; 26. Holdover; and the provisions from
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Sublease dated May 7, 1998, the following do not apply; 4. Rent; 5. Security
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Deposit, and 12. Miscellaneous.
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7.5 The obligations that Sublessee has assumed under paragraph 7.4 hereof
are hereinafter referred to as the "Sublessee's Assumed Obligations". The
obligations that Sublessee has not assumed under paragraph 7.4 hereof are
hereinafter referred to as the "Sublessor's Remaining Obligations".
7.6 Sublessee shall hold Sublessor free and harmless of and from all
liability, judgments, costs, damages, claims or demands, including reasonable
attorney's fees, arising out of Sublessee's failure to comply with or perform
Sublessee's Assumed Obligations.
7.7 Sublessor agrees to maintain the Master Lease and Sublease dated
May 7, 1998 during the entire term of this Sublease, subject, however, to any
earlier termination of the Master Lease and Sublease dated May 7, 1998 without
the fault of the Sublessor, and to comply with or perform Sublessor's Remaining
Obligations and to hold Sublessee free and harmless from all liability,
judgments, costs, damages, claims or demands arising out of Sublessor's failure
to comply with or perform Sublessor's Remaining Obligations.
7.8 Sublessor represents to Sublessee that the Master Lease and Sublease
dated May 7, 1998 is in full force and effect and that no default exists on the
part of any Party to the Master Lease and Sublease dated May 7, 1998.
8. Assignment of Sublease and Default.
8.1 Sublessor hereby assigns and transfers to Master Lessor the
Sublessor's interest in this Sublease, subject however to provisions of
Paragraph 8.2 hereof.
8.2 Master Lessor, by executing this document, agrees that until a default
shall occur in the performance of Sublessor's Obligations under the Master Lease
and Sublease dated May 7, 1998, that Sublessor may receive, collect and enjoy
the Rents accruing under this Sublease. However, if Sublessor shall default in
the performance of its obligations to Master Lessor then Master Lessor may, at
its option, receive and collect, directly from Sublessee, all Rent owing and to
be owed under this Sublease. Master Lessor shall not, by reason of this
assignment of the Sublease or by reason of the collection of the Rent from the
Sublessee, be deemed liable to Sublessee for any failure of the Sublessor to
perform and comply with Sublessor's Remaining Obligations.
8.3 Sublessor hereby irrevocably authorizes and directs Sublessee, upon
receipt of any written notice from the Master Lessor stating that a default
exists in the performance of Sublessor's obligations under the Master Lease and
Sublease dated May 7, 1998, to pay to Master Lessor the Rent due and to become
due under the Sublease. Sublessor agrees that Sublessee shall have the right to
rely upon any such statement and request from Master Lessor, and that Sublessee
shall pay such Rent to Master Lessor without any obligation or right to inquire
as to whether such Default exists and notwithstanding any notice from or claim
from Sublessor to the contrary and Sublessor shall have no right or claim
against Sublessee for any such rents so paid by Sublessee.
8.4 No changes or modifications shall be made to this Sublease without the
consent of Master Lessor.
9. Consent of Master Lessor. [Which shall also include consent by the
Sublessor (lease dated May 7, 1998).]
9.1 In the event that the Master Lease and Sublease dated May 7, 1998
require that Sublessor obtain the consent of Master Lessor to any subletting by
Sublessor then, this Sublease shall not be effective unless, within ten (10)
days of the date hereof, Master Lessor signs this Sublease thereby giving its
consent to this Subletting.
9.2 In the event that the obligations of the Sublessor under the Master
Lease and Sublease dated May 7, 1998 have been guaranteed by third parties,
then this Sublease shall not be effective unless, within ten (10) days of the
date hereof, said guarantors sign this Sublease hereby giving guarantors consent
to this Sublease.
9.3 In the event that Master Lessor does give such consent then:
(a) Such consent will not release Sublessor of its obligations or
alter the primary liability of Sublessor to pay the Rent and perform and comply
with all of the obligations of Sublessor to be performed under the Master Lease
and Sublease dated May 7, 1998.
(b) The acceptance of Rent by Master Lessor from Sublessee or anyone
else liable under the Master Lease and Sublease dated May 7, 1998 shall not be
deemed a waiver by Master Lessor of any provisions of the Master Lease and
Sublease dated May 7, 1998.
(c) The consent to this Sublease shall not constitute a consent to any
subsequent subletting or assignment.
(d) In the event of any Default of Sublessor under the Master Lease
and Sublease dated May 7, 1998, Master Lessor may proceed directly against
Sublessor, any guarantors or any one else liable under the Master Lease and
Sublease dated May 7, 1998 or this Sublease without first exhausting Master
Lessor's remedies against any other person or entity liable thereon to Master
Lessor.
(e) Master Lessor may consent to subsequent sublettings and
assignments of the Master Lease and Sublease dated May 7, 1998 or this Sublease
or any amendments or modifications thereto without notifying Sublessor or anyone
else liable
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under the Master Lease and Sublease dated May 7, 1998 and without obtaining
their consent and such action shall not relieve such persons from liability.
(f) In the event that Sublessor shall Default in its obligations under
the Master Lease and Sublease dated May 7, 1998, then Master Lessor, at its
option and without being obligated to do so, may require Sublessee to attorn to
Master Lessor in which event Master Lessor shall undertake the obligations of
Sublessor under this Sublease from the time of the exercise of said option to
termination of this Sublease but Master Lessor shall not be liable for any
prepaid Rent nor any security deposit paid by Sublessee, nor shall Master Lessor
be liable for any other Defaults of the Sublessor under the Sublease.
9.4 The signatures of the Master Lessor and any Guarantors of Sublessor at
the end of this document shall constitute their consent to the terms of this
Sublease.
9.5 Master Lessor acknowledges that, to the best of Master Lessor's
knowledge, no Default presently exists under the Master Lease and Sublease dated
May 7, 1998 of obligations to be performed by Sublessor and that Master Lease
and Sublease dated May 7, 1998 is in full force and effect.
9.6 In the event that Sublessor Defaults under its obligations to be
performed under the Master Lease and Sublease dated May 7, 1998 by Sublessor,
Master Lessor agrees to deliver to Sublessee a copy of any such notice of
default. Sublessee shall have the right to cure any default of Sublessor
described in any notice of default within ten (10) days after service of such
notice of Default on Sublessee. If such Default is cured by Sublessee then
Sublessee shall have the right of reimbursement and offset from and against
Sublessor.
10. Brokers Fee.
10.1 Upon execution hereof by all parties, Sublessor shall pay to ▇▇▇▇▇ &
▇▇▇▇▇ Company, a licensed real estate broker, ("Broker"), a fee as set forth in
a separate agreement between Sublessor and Broker, or in the event there is no
such separate agreement, the sum as per agreement for brokerage services
rendered by Broker to Sublessor in this transaction.
10.2 Sublessor agrees that if Sublessee exercises any option or right of
first refusal as granted by Sublessor herein, or any option or right
substantially similar thereto, either to extend the term of this Sublease, to
renew this Sublease, to purchase the Premises, or to lease or purchase adjacent
property which Sublessor may own or in which Sublessor has an interest, then
Sublessor shall pay to Broker a fee in accordance with the schedule of Broker in
effect at the time of the execution of this Sublease. Notwithstanding the
foregoing, Sublessor's obligation under this Paragraph 10.2 is limited to a
transaction in which Sublessor is acting as a Sublessor, Lessor or Seller.
10.3 Master Lessor agrees that if Sublessee shall exercise any option or
right of refusal granted to Sublessee by Master Lessor in connection with this
Sublease, or any option or right substantially similar thereto, either to extend
or renew the Master Lease and Sublease dated May 7, 1998, to purchase the
Premises or any part thereof, or to lease or purchase adjacent property which
Master Lessor may own or in which Master Lessor has an interest, or if Broker is
the procuring cause of any other lease or sale entered into between Sublessee
and Master Lessor pertaining to the Premises, any part thereof, or any adjacent
property which Master Lessor owns or in which it has an interest, then as to any
of said transactions Master Lessor shall pay to Broker a fee, in cash, in
accordance with the schedule of Broker in effect at the time of its execution of
this Sublease.
10.4 Any fee due from Sublessor or Master Lessor hereunder shall be due
and payable upon the exercise of any option to extend or renew, upon the
execution of any new lease, or, in the event of a purchase, at the close of
escrow.
10.5 Any transferee of Sublessor's interest in this Sublease, or of Master
Lessor's interest in the Master Lease and Sublease dated May 7, 1998, by
accepting an assignment thereof, shall be deemed to have assumed the respective
obligations of Sublessor or Master Lessor under this Paragraph 10. Broker shall
be deemed to be a third-party beneficiary of this Paragraph 10.
11. Attorney's Fees. If any party or the Broker named herein brings an action
to enforce the terms hereof or to declare rights hereunder, the prevailing party
in any such actions, on trial and appeal, shall be entitled to his reasonable
attorney's fees to be paid by the losing party as fixed by the Court. The
provision of this paragraph shall inure to the benefit of the Broker named
herein who seeks to enforce a right hereunder.
12. Additional Provisions. (If there are no additional provisions, draw a line
from this point to the next printed word after the space left here. If there
are additional provisions place the same here).
A. The Rent amount shall include furniture and voice data system of
which shall be inventoried and itemized under a separate agreement.
B. Sublessee shall have the same signage rights as Sublessor. If this
cost is not paid for by Lessor, it shall be paid by Sublessee.
C. Sublessee shall have a right to parking as specified in the Master
lease.
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Attachments:
Exhibit 1 -- Sublease dated May 7, 1998, Clinimetrics Research Associates is the
Sublessor and Thermatrix Inc. is the Sublessee.
Exhibit 2 -- Master Lease dated September 16, 1996, ▇▇▇▇▇▇▇▇▇▇▇ Investment &
Development is the Master Lessor and Clinimetrics Research Associates is the
Lessee.
California Sale/Lease Americans with Disabilities Act, Hazardous Materials, Tax
and Y2K Disclosure.
ATTENTION: NO REPRESENTATION OR RECOMMENDATION IS MADE BY THE AMERICAN
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INDUSTRIAL REAL ESTATE ASSOCIATION OR BY ANY REAL ESTATE BROKER AS TO THE
LEGAL SUFFICIENCY, LEGAL EFFECT, OR TAX CONSEQUENCES OF THIS SUBLEASE OR
THE TRANSACTION TO WHICH IT RELATES. THE PARTIES ARE URGED TO:
1. SEEK ADVICE OF COUNSEL AS TO THE LEGAL AND TAX CONSEQUENCES OF THIS
SUBLEASE.
2. RETAIN APPROPRIATE CONSULTANTS TO REVIEW AND INVESTIGATE THE CONDITION
OF THE PREMISES. SAID INVESTIGATION SHOULD INCLUDE NOT BE LIMITED TO: THE
POSSIBLE PRESENCE OF HAZARDOUS SUBSTANCES, THE ZONING OF THE PROPERTY, THE
STRUCTURAL INTEGRITY, THE CONDITION OF THE ROOF AND OPERATING SYSTEMS, AND
THE SUITABILITY OF THE PREMISES FOR SUBLESSEE'S INTENDED USE.
WARNING: IF THE SUBJECT PROPERTY IS LOCATED IN A STATE OTHER THAN
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CALIFORNIA, CERTAIN PROVISIONS OF THE SUBLEASE MAY NEED TO BE REVISED TO
COMPLY WITH THE LAWS OF THE STATE IN WHICH THE PROPERTY IS LOCATED.
Executed at: Thermatrix Inc.
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On By:
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, VP, Administration
& Corporate Secretary
Address: ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇ By:
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▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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"Sublessor" (Corporate Seal)
Executed at TrueLink, Inc., a California Corporation
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On: By:
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Address: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇., By:
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▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
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"Sublessee" (Corporate Seal)
Executed at Clinimetrics Research Associates, Inc.
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On: By:
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Address: ▇▇▇▇ ▇. ▇▇▇ ▇▇., By:
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▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
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"Sublessor" for Sublease
dated May 7, 1998
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Executed at ▇▇▇▇▇▇▇▇▇▇▇ Investment & Development
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On: By:
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Address: By:
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"Master Lessor" (Corporate Seal)
NOTE: These forms are often modified to meet changing requirements of law and
needs of the industry. Always write or call to make sure you are utilizing the
most current form: AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION, ▇▇▇ ▇▇. ▇▇▇▇▇▇
▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (213) 687-8777.
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