SUBLEASE AGREEMENT
BETWEEN
ADOBE SYSTEMS INCORPORATED, AS SUBLANDLORD
AND
DAOU SYSTEMS, INC., AS SUBTENANT
MARCH 1, 1996
SUBLEASE AGREEMENT
THIS SUBLEASE AGREEMENT ("Sublease") is entered into as of February ___,
1996, by and between ADOBE SYSTEMS INCORPORATED, a California corporation,
(herein called "Sublandlord") and DAOU SYSTEMS, INC., a ________ corporation,
(herein called "Subtenant") with reference to the following facts:
▇. ▇▇▇▇▇▇▇▇ Pyropower, Inc. ("Landlord"), as landlord, and Aldus
Corporation ("Aldus"), as tenant entered into that certain Lease dated
October 22, 1992 ("Master Lease"), pursuant to the terms of which Landlord
leased to Subtenant certain space in the building located at ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ (the "Building").
B. Pursuant to that certain Assignment of Lease (the "Assignment") by
and between Aldus, as assignor, and Sublandlord, as assignee, Aldus assigned
to Sublandlord all of Aldus's right, title and interest as the tenant under
the Master Lease.
C. The premise in the Building leased by Sublandlord pursuant to the
Master Lease consists of approximately 31,907 rentable square feet of space
located on first and second floors of the Building (the "Master Lease
Premises").
D. Sublandlord wishes to sublease to Subtenant, and Subtenant wishes
to sublease from Sublandlord, a portion of the Master Lease Premises
consisting of approximately 31,907 rentable square feet of floor space
consisting of 18,554 rentable square feet of space on the first floor of the
Building and 13,353 rentable square feet of space on the second floor of the
Building, as more particularly described in EXHIBITS A-1 AND A-2 attached
hereto (the "Subleased Premises").
NOW, THEREFORE, in consideration of the foregoing, Sublandlord and
Subtenant hereby agree as follows (capitalized terms used but not defined
herein shall have the meaning given them in the Lease):
1. SUBLEASE.
1.1 SUBLEASED PREMISES. Sublandlord hereby subleases to Subtenant
and Subtenant hereby subleases from Sublandlord the Subleased Premises for
the term, at the rental, and upon all of the conditions set forth in this
Sublease. Subtenant is leasing the Subleased Premises "as is," without any
obligation on the part of Sublandlord to make any improvements, alterations,
or refurbishments whatsoever to the Subleased Premises or the Building;
provided, however, Sublandlord shall provide Sublandlord with a tenant
improvement allowance of $31,907, of which $22,155 shall be paid upon receipt
of construction invoices and of which $9,752 shall be paid upon commencement
of the thirteenth month following the Commencement Date (defined below).
Subtenant shall
be granted access to the Subleased Premises upon mutual execution of this
Sublease for purposes of commencing construction of its tenant improvements.
The Subleased Premises shall be cleared of all personal property now
contained therein by either March 1, 1996 or the date of mutual Sublease
execution, whichever is later.] 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, express or implied, concerning the Subleased
Premises or the Building.
2. TERM.
2.1 TERM. The term of this Sublease (the "Term") shall commence
on March 1, 1996 (the "Commencement Date") and end on September 30, 1998 (the
"Expiration Date"), unless sooner terminated pursuant to any provision hereof.
3. RENT.
3.1 RENT PAYMENTS. From and after the Commencement Date,
Subtenant shall pay to Sublandlord as Annual Rent for the Subleased Premises
during the Term the following sums:
March 1, 1996 - August 31, 1996: $22,155 per month
September 1, 1996 - February 28, 1997: $27,226.04 per month
March 1, 1997 - September 30, 1998: $32,864.21 per month
All Rental (hereinafter defined) shall be payable in equal monthly
installments (except where otherwise specified herein) in advance in lawful
money of the United States on the first day of each month, 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. Notwithstanding the foregoing, Subtenant shall pay the rent due for
the month of March 1996 at the time of execution of the Sublease.
3.2 LATE CHARGES. If payment of any Annual Rent or Additional
Rental or other Rental payable by Subtenant hereunder shall not have been
paid by the 10th day after the date on which such amount was due and payable
then, in addition to, and without waiving or releasing any other remedies of
Sublandlord, a late charge of four percent (4%) of the overdue sum shall be
payable on demand by Subtenant to Sublandlord as both an administrative fee
and damages for Subtenant's failure to make prompt payment. The late charges
for amounts due in any month shall be payable on the first day of the
following month, and in default of payment of any late charges, Sublandlord
shall have (in addition to all other remedies) the same rights as provided in
this Sublease (including, without limitation, the provisions of the Master
Lease incorporated herein by reference) for nonpayment of Rental. Nothing in
this Section 3.3 contained and no acceptance of late charges by
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Sublandlord shall be deemed to extend or change the time for payment of
Rental.
3.3 DEPOSIT. Upon execution of this Sublease, Subtenant shall
deposit with Landlord the sum of $31,907 (the "Deposit"). The Deposit shall
be held by Sublandlord as security for the faithful performance by Subtenant
of all the provisions of this Sublease to be performed or observed by
Subtenant. If Subtenant fails to pay rent or other sums due hereunder, or
otherwise defaults with respect to any provisions of this Sublease,
Sublandlord may use, apply or retain all or any portion of the Deposit for
the payment of any rent or other sum in default or for the payment of any
other sum to which Sublandlord may become obligated by reason of 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, Subtenant shall within ten (10) days after demand
therefor deposit cash with Sublandlord in an amount sufficient to restore the
Deposit to the full amount thereof and Subtenant's failure to do so shall be
a material breach of this Lease. Sublandlord shall not be required to keep
the Deposit separate from its general accounts. If Subtenant performs all of
Subtenant's obligations hereunder, the Deposit, or so much thereof as has not
theretofore been applied by Sublandlord, shall be returned, without interest,
to Subtenant following the expiration of the term hereof, and after Subtenant
has vacated the Premises. No trust relationship is created herein between
Sublandlord and Subtenant with respect to the Deposit.
4. USE AND OCCUPANCY.
4.1 USE. The Subleased Premises shall be used and occupied only
for the purposes expressly permitted under the Master Lease, and for no other
use or purpose.
4.2 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 may result in a violation of or a
default under any of the terms and conditions 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 or this Sublease. Any other provision in this
Sublease to the contrary notwithstanding, Subtenant shall pay to Sublandlord
as Rental hereunder any and all sums which Sublandlord may be required to pay
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to Landlord arising out of a request by Subtenant for additional Building
services from Landlord (e.g. charges associated with after-hour HVAC usage).
(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 any obligation of Sublandlord which is contained
in this Sublease by the incorporation by reference of the provisions of the
Master Lease may be observed or performed by Sublandlord using reasonable
efforts to cause Landlord to observe and/or perform the same (provided, such
efforts are at no cost to Sublandlord), and Sublandlord shall have a
reasonable time to enforce its rights to cause such observance or
performance. Sublandlord shall not be required to furnish, supply or install
anything under any article of the Master Lease incorporated herein by
reference which is to be furnished, supplied or installed by Landlord. If
Sublandlord fails, after using reasonable efforts, to cause Landlord to
observe and/or perform any of its obligations under the Master Lease with
respect to the Subleased Premises, Subtenant shall have the right, upon
notice to Sublandlord, and at Subtenant's sole cost and expense, to bring an
action in Sublandlord's name, to accomplish such purpose. 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 the 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; provided,
however, that if Subtenant brings an action in Sublandlord's name against
Landlord as provided above, then, to the extent any judgment in such action
requires Landlord to pay any costs, expenses or damages, or grant any
abatement, diminution or reduction of obligations, in respect of the
Subleased Premises, the same shall accrue to the benefit of Subtenant if and
when any such payment is made by Landlord or any such abatement, diminution
or reduction goes into effect.
4.3 UTILITIES. Subtenant shall pay its share of all utilities,
including, electrical service. Subtenant shall be responsible for paying the
cost of those utilities directly to the supplier.
5. MASTER LEASE AND SUBLEASE TERMS.
5.1 MASTER LEASE. Subtenant acknowledges that Subtenant has
reviewed and is familiar with all of the terms, agreements, covenants and
conditions of the Master Lease. This Sublease is and shall be at all times
subject and subordinate to the Master Lease. This Sublease is also subject
and subordinate to any further
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amendments to the Master Lease. Additionally, Subtenant's rights under this
Sublease shall be subject to the terms of the Consent to Sublease attached
hereto as EXHIBIT B and incorporated herein by reference.
5.2 INCORPORATION BY REFERENCE. Except as otherwise provided in
EXHIBIT C attached hereto, the terms, convenants and conditions of the Master
Lease are incorporated herein by reference so that each and every term,
covenant and condition of the Master Lease which are binding or inuring to
the benefit of the landlord thereunder shall, in respect of this Sublease,
bind or inure to the benefit of Sublandlord, and each and every term,
covenant and condition of the Master Lease which are binding or inuring to
the benefit of the tenant thereunder shall, in respect of this Sublease, bind
or inure to the benefit of Subtenant, with the same force and effect as if
such terms, covenants and conditions were completely set forth in this
Sublease, and as if the words "Landlord" and "Tenant," or words of similar
import, wherever the same appear in the Master Lease, were construed to mean,
respectively, "Sublandlord" and "Subtenant" in this Sublease, as if the word
"Premises", or words of similar import, wherever the same appear in the
Master Lease, were construed to mean "Subleased Premises" in this Sublease,
as if the words "subtenant" and "sublease" or words of similar import,
wherever the same appear in the Master Lease, were construed to mean
"sub-subtenant" or sub-sublease", respectively, and as if the word "Lease,"
or words of similar import, wherever the same appear in the Master Lease,
were construed to mean this Sublease. 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 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 the landlord under the Master Lease that is
incorporated herein by reference, shall be deemed to inure to the benefit of
Sublandlord, the landlord under the Master Lease, and any other person
intended to be benefitted by said provision, for the purpose of incorporation
by reference in this Sublease.
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5.3 EXCEPTIONS TO SECTION 5.2. Notwithstanding the terms of
Section 5.2 above, Subtenant shall have no rights or obligations under the
parts, Sections and Exhibits of the Master Lease described in EXHIBIT C.
5.4 COMPLIANCE WITH MASTER LEASE. 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 pertain to the Subleased Premises
and/or this Sublease, except for those provisions of the Master Lease which
are directly contradicted by this Sublease, in which event the terms of this
Sublease document shall control over the Master Lease.
6. INDEMNITY. 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 Landlord under the Master Lease) by reason of (i) any
accidents, damages or injuries to persons or property occurring in, on or
about the Subleased Premises (unless the same shall have been caused by
Sublandlord's gross negligence or willful misconduct), (ii) any breach or
default hereunder on Subtenant's part, (iii) the successful enforcement of
Sublandlord's rights under this Sublease, (iv) any work done after the date
hereof in or to the Subleased Premises, except for Sublandlord's negligence
or willful misconduct in performing the work specified in Section 1.1 above,
or (v) any act, omission or negligence on the part of Subtenant and/or its
officers, partners, employees, agents, customers and/or invitees, or any
person claiming through or under Subtenant.
7. DEFAULT. In the event any default by Subtenant continues, in the
case of the payment of Annual Rental, Additional Rental or any other Rental
or other sums due hereunder, for more than five (5) days after written notice
thereof to Subtenant from Sublandlord or in the event any other default of
Subtenant continues for more than twenty (20) days after written notice
thereof to Subtenant from Sublandlord (unless Subtenant has, within said
twenty (20) day period, commenced to cure such default and thereafter
prosecutes the curing of such default to completion with due diligence), or
if Subtenant makes any assignment for the benefit of creditors, except for
such assignments secured by Subtenant's stock in trade, such as lines of
credit, which are made in the normal course of business, commits any act of
bankruptcy or files a petition under any bankruptcy or insolvency law, or if
such a petition filed against Subtenant is not dismissed within sixty (60)
days, or if a receiver or similar officer becomes entitled to the Sublease
hold and it is not returned to Subtenant within sixty (60) days, or if
Subtenant's interest in this Sublease is taken on execution or any other
process of law in any action against
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Subtenant, then, in any such instance, Sublandlord shall have the following
remedies, which shall not be exclusive but shall be cumulative and shall be
in addition to any other remedies now or hereafter allowed by law:
7.1 TERMINATION. Sublandlord shall have the right to terminate
Subtenant's right to possession of the Subleased Premises at any time by
giving a written termination notice to Tenant and, on the date specified in
such notice, Tenant's right to possession shall terminate and this Sublease
shall terminate. Upon such termination, Sublandlord shall have the right to
recover from Subtenant:
(a) The worth at the time of award of all unpaid rent which
had been earned at the time of termination;
(b) The worth at the time of award of the amount by which all
unpaid rent which would have been earned after termination until the time of
award exceeds the amount of such rental loss that Subtenant proves could have
been reasonably avoided;
(c) The worth at the time of award of the amount by which all
unpaid rent for the balance of the term of this Sublease after the time of
award exceeds the amount of such rental loss that Subtenant proves could be
reasonably avoided; and
(d) All other amounts necessary to compensate Sublandlord for
all the detriment proximately caused by Subtenant's failure to perform all of
Subtenant's obligations under this Sublease or which in the ordinary course
of things would be likely to result therefrom. The "worth at the time of
award" of the amounts referred to in clauses (a) and (b) above shall be
computed by allowing interest at the maximum annual interest rate allowed by
law for business loans (not primarily for personal, family or household
purposes ) not exempt from the usury law at the time of termination or, if
there is no such maximum annual interest rate, at the rate of eighteen
percent (18%) per annum. The "worth at the time of award" of the amount
referred to in clause (c) above shall be computed by discounting such amount
at the discount rate of the Federal Reserve Bank of San Francisco at the time
of award plus one percent (1%). For the purpose of determining unpaid rent
under clauses (a), (b) and (c) above, the rent reserved in this Sublease
shall be deemed to be the total Rental payable by Subtenant hereunder.
7.2 CONTINUE SUBLEASE IN EFFECT. Pursuant to California Civil
Code Section 1954.1, or any successor statute thereof, Sublandlord shall have
the right to continue this Sublease in effect for so long as Sublandlord does
not terminate Subtenant's right to possession, and Sublandlord shall have the
right to enforce all its rights and remedies under this Sublease, including
the right to
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recover all rent as it becomes due under this Sublease. Acts of maintenance
or preservation or efforts to relet the Subleased Premises or the appointment
of a receiver upon initiative of Sublandlord to protect Sublandlord's
interest under this Sublease shall not constitute a termination of
Subtenant's right to possession unless written notice of termination is given
by Sublandlord to Subtenant.
7.3 SURRENDER. If Sublandlord elects to terminate this Sublease
or Subtenant's right to possession hereunder, Sublease shall surrender the
Subleased Premises in broom-clean condition, and Sublandlord may re-enter and
take possession of the Subleased Premises and may eject all parties in
possession. Any personal property remaining on the Subleased Premises at the
time of such re-entry may be treated by Sublandlord as abandoned.
8. CONSENT OF LANDLORD. Under the Master Lease, Sublandlord must
obtain the consent of Landlord to any subletting.
9. ALTERATIONS AND IMPROVEMENTS. Tenant shall not make any
alterations, improvements, replacements and other changes to the Subleased
Premises or the Building Service Systems serving the Subleased Premises
without obtaining the prior consent of Landlord pursuant to the terms of the
Master Lease and Sublandlord, which consent of Sublandlord may not be
unreasonably withheld.
10. CASUALTY AND CONDEMNATION. If, in the event of eminent domain or
partial or complete destruction of the Subleased Premises, by operation of
its terms, the Master Lease is not terminated and continues in full force and
effect, this Sublease shall not be terminated but shall also continue in full
force and effect, except that until the Master Premises are restored in
accordance with the terms of the Master Lease, there shall be a proportionate
abatement of Annual rental and additional rent payable hereunder to the
extent of damage to the Subleased Premises; provided, however, that such
abatement shall in no event exceed the pro rata abatement granted to
Sublandlord under the Master Lease for the Master Premises and, provided
further, that no compensation or claim or reduction will be allowed or paid
by Sublandlord by reason of inconvenience, annoyance or injury to Subtenant's
business arising from the necessity of effecting repairs to the Master
Premises or any portion of the Building, whether such repairs are required by
operation of the terms of the Master Lease.
11. ATTORNEYS' FEES. If Sublandlord, Subtenant or Landlord brings an
action to enforce the terms hereof or to declare rights hereunder, the
prevailing party who recovers substantially all of the damages, equitable
relief or other remedy sought in any such action 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.
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12. TERMINATION OF MASTER LEASE. If for any reason the term of the
Master Lease shall terminate prior to the scheduled expiration of the Term,
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.
13. PARKING. During the Term hereof, and, subject to Sublandlord's
receipt of parking spaces for use pursuant to the provisions of Paragraph 5
of Amendment to Lease dated October 22, 1992, Subtenant and its employees
shall be permitted to use 105 parking spaces allocated to Sublandlord in the
Master Lease.
14. SIGNAGE AND BUILDING DIRECTORY BOARD. Subject to all the
requirements set forth in the Master Lease, Subtenant shall have the sole
right to install at its cost a monument sign with its name in the location of
Sublandlord's current sign. Sublandlord shall use its reasonable efforts to
cause Landlord to provide Subtenant with identity strips in the main Building
lobby directory boards; provided, however that if there is any cost
associated with such signage, Subtenant shall be responsible for such cost.
15. SURRENDER AND HOLDING OVER.
15.1 SURRENDER. At the end of the Term, Subtenant shall surrender
to Sublandlord the Subleased Premises and all alterations, additions and
improvements thereto in the same condition as the Subleased Premises where in
as of the Commencement Date, ordinary wear and tear excepted.
15.2 HOLDING OVER. If Subtenant holds possession of the Subleased
Premises after expiration of the Term, Subtenant shall become a tenant from
month to month upon the terms herein specified, except the Annual Rental
shall equal three times the Annual Rental payable by Subtenant at the
expiration of the Term.
16. 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, or (c) sent by United States
Certified or registered mail, return receipt requested, addressed (i) if to
Sublandlord, at the following addresses:
Adobe Systems Incorporated
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Director of Corporate Facilities
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With a copy to:
Adobe Systems Incorporated
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: General Counsel
and (ii) if the Subtenant, delivered at the following address:
DAOU Systems, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇, Vice President
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, if sent via express mail,
upon hand delivery, and if mailed by United States certified or registered
mail, five (5) days following such mailing in accordance with this Section 15.
17. NO WAIVER. The failure of Sublandlord to insist in any one or more
cases upon the strict performance or observance of any obligation of
Subtenant hereunder or to exercise any right or option contained herein shall
not be construed as a waiver or relinquishment for the future of any such
obligation of Subtenant or any right or option of Sublandlord. Sublandlord's
receipt and acceptance of, or Sublandlord's acceptance of performance of any
other obligation by Subtenant, with knowledge of Subtenant's breach of any
provision of this Sublease, shall not be deemed a waiver of such breach. No
waiver by Sublandlord of any term, convenant or condition of this Sublease
shall be deemed to have been made unless expressed in writing and signed by
Sublandlord.
18. SUCCESSORS AND ASSIGNS. The provisions of this Sublease, except as
herein otherwise specifically provided, shall extend to, bind and inure to
the benefit of the parties hereto and their respective personal
representatives, heirs, successors and permitted assigns. Upon any
assignment or transfer of Sublandlord's interest in the leasehold estate
under the Master Lease, the transferor or assignor, as the case may be, shall
be and hereby is entirely relieved and freed of all obligations under this
Sublease.
19. 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
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permitted by law. The captions, headings and titles, if any, in this
Sublease are solely for convenience of 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 words or phrases were so stricken out or
otherwise eliminated. Each covenant, agreement, obligation or other
provisions 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 word "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.
20. 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.
IN WITNESS WHEREOF, the parties hereto hereby execute this Sublease as
of the day and year first above written.
SUBLANDLORD:
ADOBE SYSTEMS INCORPORATED
By:/s/
------------------------------------------
Print Name:
-------------------------------------
Title:
------------------------------------------
SUBTENANT:
DAOU SYSTEMS, INC.
By:/s/
------------------------------------------
Print Name:
-------------------------------------
Title:
------------------------------------------
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EXHIBIT A-1
Subleased Premises - Floor 1
[to be attached]
12
EXHIBIT A-2
Subleased Premises - Floor 2
[to be attached]
13
EXHIBIT B
Landlord's Consent
[to be attached]
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EXHIBIT C
The following provisions of the Master Lease are not incorporated by
reference into the Master Lease:
Section 5.3; Section 11(a); Section 11(b)(1); Sections 2,3,4,5,6, and 10 of
Addendum 1; The entire terms of Addendums 2-6; Section 40 (as set forth in
Rider #1).
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