[LETTERHEAD]
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S U B L E A S E
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SUBLESSOR: interWave Communications, Inc., PREMISES: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
a Delaware corporation 1st Floor (Suites 101,
103, 105, 106, 108)
2nd Floor (Suite 200) and
3rd Floor (Suites 302 &
▇▇▇)
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇
SUBLESSEE: AlterEgo Networks, Inc., DATE: January 24, 2000
a California corporation
1. PARTIES:
This Sublease is made and entered into as of January 24, 2000, by and
between interWave Communications, Inc. ("Sublessor"), and AlterEgo
Networks, Inc. ("Sublessee") and Sublessor under this Sublease dated
January 8, 1999, between Marina Investments, Inc. as ("Landlord") and
Sublessor under this Sublease as ("Tenant") (the "Original Lease"), as
amended by that certain first amendment to Peninsula Marina and Office
Park office lease agreement dated February 15, 1999 (the "First
Amendment"). The Original Lease and First Amendment are hereinafter
collectively referred to as the "Master Lease". A copy of the Master
Lease is attached hereto as Exhibit "A" and incorporated herein by this
reference. Any capitalized term used herein shall have the same meaning
ascribed to it under the Master Lease, unless separately defined in this
Sublease.
2. PROVISIONS CONSTITUTING SUBLEASE:
2.1 This Sublease is subject to all of the terms and conditions of the
Master Lease. Sublessee hereby assumes and agrees to perform all
of the obligations of Tenant under the Master Lease to the extent
said obligations apply to the Subleased Premises and Sublessee's
use of the common areas, except as otherwise specifically set
forth herein. Sublessor hereby agrees to cause Landlord, under
the Master ▇▇▇▇▇, to perform all of the obligations of Landlord
thereunder to the extent said obligations apply to the Subleased
Premises and Sublessee's use of the Common Areas. Sublessee shall
not commit or permit to be committed by any person other than
persons employed by Sublessor, unless such person acted at the
direct request of Sublessee on the Subleased Premises or on any
other portion of the Project, any act or omission which would
result in a default by Tenant of any term or condition of the
Master Lease. Except to the extent waived or consented to in
writing by the other party or parties hereto who are affected
thereby, neither of the parties hereto will, by renegotiations of
the Master Lease, assignment, subletting, default or any other
voluntary action, avoid or seek to avoid the observance or
performance of the terms to be observed or performed hereunder by
such party but, will at all times, in good faith assist in
carrying out all the terms of this Sublease and in taking all such
action as may be necessary or appropriate to protect the rights of
the other party or parties hereto who are affected thereby against
Page 1 of 9
impairment. Nothing contained in this Section 2.1 or elsewhere in
this Sublease shall prevent or prohibit Sublessor (a) from
exercising its right to terminate the Master Lease pursuant to the
terms thereof; provided, however, Sublessor obtains a direct lease
between Sublessee and Landlord, based on the terms and conditions
of this Sublease, or (b) from assigning its interest in this
Sublease or subletting the Premises, exclusive of the Subleased
Premises, to any other third party as long as the Sublease is in
full force and effect and the Sublessee is not in default
thereunder. Sublessor shall provide thirty (30) days prior
written notice to Sublessee in the event it elects to terminate is
Master Lease with Landlord.
Sublessor shall use its good faith best efforts to maintain the
Master Lease in full force and effect during the Sublease Term;
provided, however, that Sublessor shall not be liable to Sublessee
for any default or failure by Landlord or any earlier termination
of the Master Lease which is not due to the fault of the
Sublessor.
Whenever the provisions of the Master Lease incorporated as
provisions of this Sublease require the written consent of
Landlord, said provisions shall be construed to require the
written consent of both Landlord and Sublessor. Sublessee hereby
acknowledges that it has read and is familiar with the terms of
the Master Lease, and agrees that this Sublease is subordinate and
subject to the Master Lease and that any termination thereof may
likewise terminate this Sublease and any obligation whatsoever of
the Landlord to provide the Subleased Premises to Sublessee.
2.2 All of the terms and conditions contained in the Master Lease are
incorporated herein, except as specifically provided below, and
shall together with the terms and conditions specifically set
forth in this Sublease constitute the complete terms and
conditions of this Sublease. It being understood that wherever in
the Master Lease the word "Landlord" is used for purposes of this
Sublease, the word "Sublessor" shall be substituted; and wherever
the word "Tenant" appears, the word "Sublessee" shall be
substituted; and wherever the word "Premises" appears, for
purposes of this Sublease, such word shall refer only to the
extent of the premises sublet under this Sublease. In the event
of any conflict between this Sublease and the Master Lease, the
terms of this Sublease shall control.
The following paragraphs of the Master Lease SHALL NOT be included
in this Sublease: 1.6 - limited to Suites defined herein; 1.7;
1.10; 1.11; 1.13; 1.14 - Percentage is defined as 21.2%; 1.15 -the
base year is defined as 2000; 1.16 - amount of security defined
herein; 2.4; Article 3; Rent Schedule.
3. PREMISES:
Sublessor leases to Sublessee and Sublessee leases from Sublessor the
Subleased Premises upon all of the terms, covenants and conditions
contained in this Sublease. The Subleased Premises consist of
approximately 18,341 = rentable square feet, located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
(1st Floor - 7,325 sq. ft., 2nd
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Floor - 7,583 sq. ft., and 3rd Floor - 3,433 sq. ft.), Redwood City, as
shown and described in Exhibit "B".
4. RENT:
Upon execution of this Agreement, Sublessee shall pay to Sublessor as
Rent for the Subleased Premises the sum of Fifty-Four Thousand One
Hundred Five and 95/100 Dollars ($54,105.95) representing the first
month's rent. The rent schedule shall be in accordance with the
following:
MONTHS AMOUNT PER SQUARE FOOT/FULL SERVICE
------ -----------------------------------
02/15/00 - 02/28/01 $2.95/sq. ft./full service ($54,105.95)
03/01/01 - 02/28/02 $3.04/sq. ft./full service ($55,756.64)
03/01/02 - 09/30/02 $3.13/sq. ft./full service ($57,429.34)
The rental amount shall be paid, without deductions, offset, prior
notice or demand on the first calendar day of each month during the
Sublease Term except as otherwise expressly provided for in Paragraph
7.1 hereof. If the commencement date or the termination date of the
Sublease occurs on a date other than the first day or the last day,
respectively, of a calendar month, then the Rent for such partial month
shall be prorated and the prorated Rent shall be payable on the second
month of the Sublease term or on the first day of the calendar month in
which the Sublease termination date occurs, respectively.
5. SECURITY DEPOSIT:
Upon execution of this Sublease, Sublessee shall pay to Sublessor a
Security Deposit equivalent to Three Hundred Thirty-Five Thousand and
00/100 Dollars ($335,000.00) as a non-interest bearing Security
Deposit. In addition to the foregoing, certain individuals have
guaranteed all of the obligations of Sublessee as more particularly
described in the Guaranty of Sublease executed by ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇, dated of even date herewith.
If the Sublessee is not in default and has received equity in an amount
equal to or in excess of $5,000,000.00 in cash or cash equivalent, the
Guaranty of Sublease attached hereto shall be null and void effective
two (2) working days following Sublessor's receipt of Sublessee's bank
statement verifying such amount. In addition, if Sublessee is not then
in default, Sublessor shall credit the rental amount due for months 22,
23 & 24 of the Sublease Term from the Security Deposit held. The
remaining Security Deposit of One Hundred Sixty-Seven Thousand Seven
Hundred Thirty and 08/100 Dollars ($167,730.08) shall be held throughout
the balance of the Sublease Term. At the end of the Sublease Term, in
the event Sublessee has performed all of the terms and conditions of
this Sublease during the Sublease Term hereof, Sublessor shall return
to Sublessee, within ten (10) days after Sublessee has vacated the
Subleased Premises, the Security Deposit less any sums due and owing
to Sublessor.
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6. RIGHTS OF ACCESS AND USE:
6.1 Use:
Sublessee shall use the Subleased Premises only for those
proposes permitted in the Master Lease, unless Sublessor and
Landlord consent in writing to other uses prior to the
commencement thereof.
7. SUBLEASE TERM:
7.1 Sublease Term:
The Sublease Term shall be for the period commencing on Tuesday,
February 22, 2000, (Sublease Commencement Date) or earlier, if
Sublessor can vacate earlier, and continuing through September
30, 2002. Notwithstanding the foregoing, Sublessor shall deliver
possession to Sublessee Suite 302, consisting of 518 square feet
on or before February 1, 2000 or within five (5) days of Sublease
execution by all parties, including Landlord, whichever is later.
Any occupation of the Subleased Premises prior to the
Commencement Date shall be subject to all the terms and
conditions of this Sublease and rent for any early entry shall be
billed and payable with the second month's rent. If Sublessor
can vacate earlier, Sublessor shall provide a five (5) business
day prior notification to Sublessee of availability and shall
define the new Commencement Date accordingly. In no event shall
the Sublease Term extend beyond the Term of the Master Lease.
Sublessor and Sublessee acknowledge Sublessee Commencement Date
for the Premises shall be a phase-in schedule as follows:
Suite 302: 518 sq ft. February 1, 2000 or five
(5) days following execution
of Sublease by all parties,
whichever is later.
Suite 106, 105
103 & 101: 4,067 sq.ft. February 22, 2000
Balance of Premises: 13,756 sq.ft. March 8, 2000
-------------
Total of Premises: 18,341 sq.ft.
If Sublessor fails to deliver possession of all of the Subleased
Premises on or before June 1, 2000, then Sublessee shall have the
right to terminate this Sublease upon thirty (30) days prior
written notice to Sublessor.
7.2 Inability to Deliver Possession:
In the event Sublessor is unable to deliver possession of the
Subleased Premises at the commencement of the term, Sublessor
shall not be liable for any damage caused thereby nor shall this
Sublease be void or voidable, but Sublessee shall not be liable
for Rent until such time as Sublessor offers to deliver
possession of the Subleased Premises to Sublessee, but the term
hereof shall not be extended by such delay. If
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Sublessee, with ▇▇▇▇▇▇▇▇▇'s consent, takes possession prior to
commencement of the term. Sublessee shall do so subject to all the
covenants and conditions hereof and shall pay Rent for the period ending
with commencement of the term at the same rental as that prescribed for
the first month of the term prorated at the rate of 1/30th thereof per
day.
8. TENANT IMPROVEMENTS:
A. Sublessor, at Sublessor's sole cost and according to building
standard, shall steam clean the carpets, touch-up paint where
needed, replace any damaged or stained ceiling tiles, clean all
heating, ventilation, and air-conditioning ("HVAC") vents and
returns and replace lights where needed. Notwithstanding the
above, Sublessee accepts the Premises "as is"; provided, however,
all lighting, HVAC, roofs, electrical and utility systems, to the
best of Sublessor's knowledge, are in good condition and repair as
of the Sublease Commencement Date.
B. Sublessee acknowledges there are supplemental HVAC units in three
locations in the Subleased Premises and such supplemental HVAC
units shall be in good condition and repair as of the Sublease
Commencement Date. If used, Sublessee shall be responsible for
the cost of use and maintenance as applicable and billed for the
cost thereof by the Landlord.
9. ASSIGNMENT/SUBLEASE:
Sublessor grants Sublessee the right to sublet/assign the Premises
subject to Sublessor's approval, which approval shall not be unreasonably
withheld, conditioned or delayed, and according to the terms of the
Master Lease.
10. PARKING:
Landlord shall provide on-site parking as defined in the underlying
Master Lease.
11. NOTICES:
All notices, demands, consents and approvals which may or are required to
be given by either party to the other hereunder shall be given in the
manner provided in the Master Lease at the addresses shown below or
addressed to such other address or addresses as either Sublessor or
Sublessee may from time to time designate to the other in writing.
Sublessor shall notify Sublessee and the Guarantors, if any, of any Event
of Default under the Master Lease, or of any other event of which
Sublessor has actual knowledge which will impair Sublessee's ability to
conduct its normal business at the Subleased Premises, as soon as
reasonably practicable following Sublessor's receipt of notice from
Landlord of an Event of Default (but in no event later than seven (7)
days after receipt) or actual knowledge of such impairment. In an Event
of Default, Sublessee may elect to provide written notice of such default
to Landlord, in addition to the notice of default it shall provide to
Sublessor.
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SUBLESSOR'S SUBLESSEE'S
ADDRESS: Interwave Communications, Inc. ADDRESS: AlterEgo Networks,
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Inc.
Menlo Park, CA 94025 Address herein
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇ ▇▇▇▇
PHONE NUMBER (▇▇▇) ▇▇▇-▇▇▇▇ PHONE NUMBER (▇▇▇) ▇▇▇-▇▇▇▇
FAX NUMBER: (▇▇▇) ▇▇▇-▇▇▇▇ FAX NUMBER: (▇▇▇) ▇▇▇-▇▇▇▇
PRIOR TO
COMMENCEMENT: Guarantor Address
12. BROKER FEE:
Upon execution of the Sublease, Sublessor shall pay ▇▇▇▇▇▇▇ & ▇▇▇▇▇
Commercial, a licensed real estate broker, fees set forth in a separate
agreement between Sublessor and Broker for brokerage services rendered by
Broker to Sublessor in these transactions. Sublessor shall defend,
indemnify and hold Sublessee harmless from and against any and all
claims, demands, costs, expenses or liabilities related to or connected
with Broker or any other broker's or finder's fee, commission or payment
of any kind asserted by any person or entity.
Sublessee shall defend, indemnify and hold Sublessor harmless from and
against any and all claims, demands, costs, expenses or liabilities
related to or connected with Broker or any other broker's or finder's
fee, commission or payment of any kind asserted by any person or entity.
13. BROKER REPRESENTATION:
The only Brokers involved in this Sublease are ▇▇▇▇▇▇▇ & ▇▇▇▇▇ Commercial
representing Sublessor and ▇▇▇▇▇▇▇ & ▇▇▇▇▇ Commercial representing
Sublessee. ▇▇▇▇▇▇▇ & ▇▇▇▇▇ Commercial represents both parties, for which
Sublessor and Sublessee consent to such dual representation and waive any
conflict of interest arising out of such dual agency.
14. TOXIC CONTAMINATION DISCLOSURE:
Sublessor and Sublessee each acknowledge that they have been advised that
numerous federal, state, and/or local laws, ordinances and regulations
(Laws) affect the existence and removal, storage, disposal, leakage of
and contamination by materials designated as hazardous or toxic
("Toxics"). Many materials, some utilized in everyday business
activities and property maintenance, are designated as hazardous or
toxic.
Some of the Laws require that Toxics be removed or cleaned up by
landowners, future landowners or former landowners without regard to
whether the party required to pay for "clean up" caused the
contamination, owned the property at the time the contamination occurred
or even knew about the contamination. Some items, such as asbestos or
PCBs, which were legal when installed, now are classified as Toxics and
are subject to removal requirements. Civil lawsuits for damages
resulting from Toxics may be filed by third parties in certain
circumstances. Notwithstanding the foregoing, under no circumstances
shall Sublessee be liable for any claim, demand, cost expenses or
liabilities
Page 6 of 9
related to or connected with the environmental condition of the Project
(collectively "Environmental Claims"), including the Subleased
Premises, that existed prior to the Sublease Commencement Date.
Sublessor, limited to Sublessor's activities, shall indemnify and hold
Sublessee harmless from any Environmental Claim relating to the
environmental conditions of the Project, including but not limited to
the Subleased Premises, that existed as of the Sublease Commencement
Date.
Sublessor and Sublessee each acknowledge that Broker has no specific
expertise with respect to environmental assessment or physical condition
of the Subleased Premises, including, but not limited to, matters
relating to: (i) problems which may be posed by the presence or disposal
of hazardous or toxic substances on or from the Subleased Premises,
(ii) problems which may be posed by the Subleased Premises being within
the Special Studies Zone as designated under the ▇▇▇▇▇▇▇-▇▇▇▇▇▇ Special
Studies Zone Act (Earthquake Zones), Section 2621 - 2630, inclusive of
California Public Resources Code, and (iii) problems which may be posed
by the Subleased Premises being within a HUD Flood Zone as set forth in
the U.S. Department of Housing and Urban Development "Special Flood Zone
Area Maps", as applicable.
Sublessor and Sublessee each acknowledge that ▇▇▇▇▇▇ has not made an
independent investigation or determination of the physical or
environmental condition of the Subleased Premises, including, but not
limited to, the existence or nonexistence of any underground tanks,
sumps, piping, toxic or hazardous substances on the Subleased Premises.
Sublessee agrees that it will rely solely upon its own investigation
and/or the investigation of professionals retained by it or Sublessor,
and neither Sublessor nor Sublessee shall rely upon Broker to determine
the physical and environmental condition of the Subleased Premises or
to determine whether, to what extent or in what manner, such condition
must be disclosed to potential sublessees, assignees, purchasers or
other interested parties.
15. RENT ABATEMENT:
In the event Sublessor, pursuant to the terms of the Master Lease, is
entitled to and receives any rent abatement, then to the extent such
rent abatement affects the Subleased Premises, Sublessee shall be
entitled to a rent abatement in an amount that the usable area of the
Subleased premises bears to the total useable area of the Master Lease,
and only to the extent any such abatement applies to the Sublease Term.
16. LANDLORD'S OBLIGATIONS:
It shall be the obligation of Landlord to (i) provide all services to be
provided by Landlord to Sublessor under the terms of the Master Lease
and (ii) to satisfy all obligations and covenants of Landlord made to
Sublessor in the Master Lease. Sublessee acknowledges the Sublessor shall
be under no obligation to provide such services or satisfy any such
obligation to provide such services or satisfy any such obligations or
covenants; provided, however, Sublessor, upon written notice by
Sublessee, shall diligently attempt to enforce all obligations of
Landlord under the Master Lease for the benefit of Sublessee.
17 LANDLORD'S WRITTEN CONSENT:
This Sublease is conditioned upon ▇▇▇▇▇▇▇▇'s written consent to this
Sublease. If ▇▇▇▇▇▇▇▇'s consent has not been obtained prior to the
Sublease Commencement Date, the Sublease Commencement Date shall be
postponed for each day of delay until such consent is obtained, up to
March 15, 2000. If
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Landlord refuses to consent to this Sublease, or if the consent period
expires, this Sublease shall terminate and neither party shall have any
continuing obligation to the other with respect to the Subleased
Premises, and any funds previously deposited with Sublessor or paid to
Sublessor shall be returned to Sublessee.
SUBLESSOR: INTERWAVE COMMUNICATIONS, INC. a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Date: 1/26/00
----------------------- -----------------------
Printed Name & Title: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------
Vice President, Finance
SUBLESSEE: ALTEREGO NETWORKS, INC., a California corporation
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇ Date: 1/25/00
----------------------- -----------------------
Printed Name & Title: ▇▇▇▇▇▇▇ ▇▇▇▇, CEO
-----------------------
NOTICE TO THE SUBLESSOR AND SUBLESSEE: ▇▇▇▇▇▇▇ & ▇▇▇▇▇, COMMERCIAL, IS NOT
AUTHORIZED TO GIVE LEGAL OR TAX ADVICE: NOTHING CONTAINED IN THIS SUBLEASE OR
ANY DISCUSSION BETWEEN ▇▇▇▇▇▇▇ & ▇▇▇▇▇ COMMERCIAL AND SUBLESSOR AND OR
EMPLOYEES AS TO THE LEGAL EFFECT OR TAX CONSEQUENCES OF THIS DOCUMENT OR ANY
TRANSACTION RELATING THERETO. ALL PARTIES ARE ENCOURAGED TO CONSULT WITH
THEIR INDEPENDENT FINANCIAL CONSULTANTS AND/OR ATTORNEYS REGARDING THE
TRANSACTION CONTEMPLATED BY THIS PROPOSAL.
Exhibit "A" Master Lease
Exhibit "B" Premises
Page 8 of 9
Exhibit A
Landlord Consent
The undersigned, Landlord, under the Master Lease attached as Exhibit A,
hereby consents to the subletting of the Subleased Premises described as
follows: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ (101, 103, 105, 106, 108, 200, 302 and
304) for a total of 18,341 sq. ft., on the terms and conditions contained in
the Sublease attached hereto with Alter Ego Networks, Inc., a California
Corporation, provided however that (I) this Sublease remains subordinate and
subject to the Master Lease and that any termination of the Master Lease
shall result in an automatic termination of this Sublease. (II) This Consent
shall apply only to this Sublease and shall not be deemed to be a consent to
any other sublease. (III) Sublessor is not permitted to approve any
assignment or Sublease of the premises by the Sublessee without the prior
written approval of Landlord. (IV) The first sentence of Clause 16 of the
Sublease should not be binding on Landlord. (V) That the security deposit
under the Master Lease shall be increased by $100,000, on or before March 15,
2000 in the form of cash or letter of credit acceptable to Landlord.
LANDLORD: Marina Investments, Inc.
a Delaware Corporation
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇ Date: February 25, 2000
----------------------------------- ------------------
Name & Title: ▇▇▇ ▇. ▇▇▇▇▇▇▇, President
Page 9 of 9
[FLOOR PLAN]
First Floor
----------- 1) Move In 2/21/2000
Peninsula Marina 2) Balance:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇
Total: 7,325 Sq. Ft. / / Common Area
EXHIBIT B
[FLOOR PLAN]
Second Floor
------------
Peninsula Marina
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇
Total: 7,583 Sq. Ft. / / Common Area
EXHIBIT B
[FLOOR PLAN]
Third Floor
-----------
Peninsula Marina / / Leased
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇
Total: 3,433 Sq. Ft. / / Common Area
EXHIBIT B
This Guaranty of Sublease is made as of this 21st day of January 2000 by the
undersigned (collectively, "Guarantor") concerning that certain Sublease,
dated January 21, 2000, by and between interWave Communications, Inc., a
Delaware corporation ("Sublessor") and AlterEgo Networks, Inc., a California
corporation ("Sublessee") relating to the property commonly known as ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ floor, 2nd floor and Suites 302 and 304 of the 3rd floor,
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ (the "Sublease") attached hereto.
1. Subject to the terms and conditions hereof, Guarantor hereby
unconditionally guarantees the full performance of each and all of the
terms, covenants and conditions of the Sublease to be kept and
performed by Sublessee, including the payment of all rentals and other
charges under the Sublease.
2. This Guaranty will continue in favor of Sublessor notwithstanding any
extension, modification or alteration of the Sublease entered into by
and between the parties thereto, or their successors or assigns, and
notwithstanding any assignment of the Sublease, with or without the
consent of the undersigned. No extension, modification, alteration or
assignment of the Sublease shall release or discharge the Guarantor.
3. This Guaranty will continue unchanged by any bankruptcy, reorganization
or insolvency of Sublessee or any successor or assignee thereof or by
any disaffirmance or abandonment by a trustee of Sublessee. This
Guaranty shall be subject and subordinate to all applicable bankruptcy,
reorganization or insolvency laws applicable to any petition filed for
the benefit of any Guarantor.
4. Sublessor may, without notice, assign this Guaranty in whole or in
part and no assignment or transfer of the Sublease or this Guaranty
will operate to extinguish or diminish the liability of the undersigned
hereunder; provided, however, Sublessor also assigns its interest in
the Sublease and the Lease.
5. The liability of the Guarantor under this Guaranty shall be primary.
In any right of action, which accrues to Sublessor under the Sublease,
Sublessor may, at its option, proceed directly against the Guarantor
without having commenced any action or having obtained any judgment
against the Sublessee; provided, however, Sublessor has notified
Guarantor of the facts and circumstances surrounding such liability and
provided Guarantor is given at least ten (10) days to cure.
6. The Guarantor shall, in addition to any other sums to which Sublessor
may be entitled to hereunder, pay to Sublessor reasonable attorney's
fees and all costs and other expenses
Page 1 of 4
incurred in any collection or attempted collection or in any
negotiations relating to the obligations hereby guaranteed or enforcing
the Guaranty against the Guarantor.
7. The Guarantor hereby waives (i) notice of any demand by the Sublessor,
(ii) notice of default in the payment of rent or any other amounts
contained or reserved in the Sublease, (iii) notice of acceptance of
this Guaranty by any person and (iv) any other notice to which the
Guarantor may be entitled in connection herewith.
8. In the event any provision of this Guaranty is deemed to be invalid,
unenforceable or void, the remaining provisions of this Guaranty shall
be unaffected and shall remain in full force and effect. The terms and
provisions of this Guaranty are binding upon and inure to the benefit
of the respective successors and assigns of the parties named in this
Guaranty.
9. The Guarantors herein are jointly and severely liable.
10. This Guaranty shall be null and void effective two (2) working days
following Sublessee providing Sublessor a bank statement verifying that
Sublessee is in receipt of their initial round of equity equivalent to
a minimum of $5,000,000.00 in cash or cash equivalent as defined in the
Sublease document.
11. The total maximum amount guaranteed under this Guaranty is
$2,500,000.00.
12. All notices which may be required, or which any party may desire to
serve on another shall be in writing and shall be served at the
address provided below, or at such other address as any party may from
time to time designate in writing in the manner provided in The
Sublease.
Page 2 of 4
IN WITNESS WHEREOF, the undersigned has caused this Guaranty to be
executed as of the date first above written.
Guarantor: ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Cell: (▇▇▇) ▇▇▇-▇▇▇▇/Fax: (▇▇▇) ▇▇▇-▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇ /s/ ▇▇▇▇ ▇▇▇▇▇▇
------------------------ ------------------------
Date: 1/25/00 Date: 1/25/00
------------------- -------------------
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ #▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Pager #: (▇▇▇) ▇▇▇-▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------ ------------------------
Date: 1/25/00 Date: 1/25/00
------------------- -------------------
Page 3 of 4
ACKNOWLEDGED:
Sublessor: INTERWAVE COMMUNICATIONS, INC., A DELAWARE CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Date: 1/26/00
------------------------- ----------------------
Print Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------
Sublessee: ALTEREGO NETWORKS, INC., A CALIFORNIA CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇ Date: 1/25/00
------------------------- ----------------------
Print Name: ▇▇▇▇▇▇▇ ▇▇▇▇
-----------------
NOTICE TO SUBLESSOR AND SUBLESSEE: ▇▇▇▇▇▇▇ & ▇▇▇▇▇ COMMERCIAL IS NOT
AUTHORIZED TO GIVE LEGAL OR TAX ADVICE: NOTHING CONTAINED IN THIS
GUARANTY OR ANY DISCUSSIONS BETWEEN ▇▇▇▇▇▇▇ & ▇▇▇▇▇ AND SUBLESSOR AND/OR
SUBLESSEE SHALL BE DEEMED TO BE A REPRESENTATION OR RECOMMENDATION BY
▇▇▇▇▇▇▇ & ▇▇▇▇▇ COMMERCIAL. OR ITS AGENTS OR EMPLOYEES AS TO THE LEGAL
EFFECT OR TAX CONSEQUENCES OF THIS DOCUMENT OR ANY TRANSACTION RELATING
HERETO. ALL PARTIES ARE ENCOURAGED TO CONSULT WITH THEIR INDEPENDENT
FINANCIAL CONSULTANTS AND/OR ATTORNEYS REGARDING THE TRANSACTION
CONTEMPLATED BY THIS GUARANTY.
Page 4 of 4