Cornish & Carey Commercial Oncor International
Exhibit
10.31
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Sublessor: Puredepth,
Inc.
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Subject Property: ▇ ▇▇▇▇
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Sublessee: Precise
Software Solutions, Inc.
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Date: March 24,
2008
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1. Parties:
This Sublease is made and
entered into as of March 20, 2008, by and between Puredepth, Inc. (“Sublessor”), and
Precise
Software
Solutions, Inc. (“Sublessee”),
under the Master Lease dated Novemer 7, 2007, between The Realty Associates Fund
VII, L.P., a Delaware Limited Partnership, as “Lessor” and Puredepth, Inc. (“Sublessor”),
under this Sublease as “Lessee.” A copy of the Master Lease is attached hereto
as Attachment I and incorporated herein by this reference.
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” (and/or “Lessee”) under the Master Lease to the extent said obligations
apply to the Subleased Premises and Sublessee’s use of the Common Areas, except
as specifically set forth herein. Sublessor hereby agrees to use reasonable
efforts to cause Lessor under the Master Lease to perform all of the obligations
of Lessor 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 on the Subleased Premises or on any other portion of the
Project any act or omission which violates 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 renegotiation 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
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 (b) from assigning its interest
in this Sublease or subletting the Premises to any other third party or (c)
exercising any of its other continuous rights under the Master
Lease.
3. Subleased Premises and
Rent:
3.1
Subleased Premises:
Subject
to Master Lessor’s written consent, 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 4,626 square feet, measured by BOMA Standard.
THE
INFORMATION CONTAINED HEREIN HAS BEEN GIVEN TO US BY THE OWNER OF THE PROPERTY
OR OTHER SOURCES WE DEEM RELIABLE. WE HAVE NO REASON TO DOUBT ITS ACCURACY, BUT
WE DO NOT GUARANTEE IT. ALL INFORMATION SHOULD BE VERIFIED PRIOR TO PURCHASE OR
LEASE
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Sublease
3.2
Rent:
Sublessee
shall pay to Sublessor as Rent for the Subleased Premises the sum of $13,646.70
per month, without deductions, offset, prior notice or demand for the entire
term of twenty four (24) months. Rent shall be payable by Sublessee
to Sublessor in consecutive monthly installments on or before the first day of
each calendar month during the Sublease Term. If the Sublease 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
Sublease commencement date or on the first day of the calendar month in which
the Sublease termination date occurs, respectively.
3.3 Base
Year:
The Base
Year is 2008.
3.4
Security Deposit:
In
addition to the Rent specified above, Sublessee shall pay to Sublessor an
equivalent of $15,000 as a non-interest bearing Security Deposit, payable upon
signing of this Sublease, applicable to Sublessee’s obligations under the
Sublease. In the event Sublessee has performed all of the terms and conditions
of this Sublease during the term hereof, Sublessor shall return to Sublessee,
within ten days after Sublessee has vacated the Subleased Premises, the Security
Deposit less any sums due and owing to Sublessor.
4. Rights of Access and
Use:
4.1
Use:
Sublessee
shall use the Subleased Premises only for those purposes permitted in the Master
Lease, unless Sublessor and Master Lessor consent in writing to other uses prior
to the commencement thereof.
5. Sublease Term:
5.1
Sublease Term:
The
Sublease Term shall be for the period commencing on June 1, 2008, and continuing
through May 31, 2010. In no event shall the Sublease Term extend
beyond the Term of the Master Lease. Sublessee shall have early access from the
day after Landlord gives written consent of approval of the sublease to May
31st, 2008
for office set up.
5.2
Inability to Deliver Possession:
In the
event Sublessor is unable to deliver possession of the Subleased Premises at the
commencement of the term due to delay attributable to the Master Lessor,
including without limitation delays in providing its consent to the
Sublease, 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 Sublessee, with Sublessor’s consent, takes possession prior to
commencement of the term, Sublessee shall do so subject to all the covenants and
conditions hereof (the Tenant may have early access to the space
immediately after the following conditions are met: duly signed Sublease, first
month’s rent and security deposit checks submitted to Sublessor, and written
consent from Landlord). In the event Sublessor has been unable to
deliver possession of the Subleased Premises within 30 days from the
commencement date (or 45 days in the event of a delay attributable from actions
by, or obtaining consent from, the Master Lessor), Sublessee, at Sublessee’s
option, may terminate this Sublease.
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6. Signage:
Sublessee
shall be responsible at Sublessee’s sole cost for any signage throughout the
building.
7. 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 on the signature page hereof. Sublessor
shall notify Sublessee 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 the
Lessor of an Event of Default or actual knowledge of such impairment. If
Sublessor elects to terminate the Master Lease, Sublessor shall so notify
Sublessee by giving at least 90 days notice prior to the effective date of such
termination.
8. Broker Fee:
Upon
execution of the Sublease and payment of the Security Deposit hereunder,
Sublessor shall pay Cornish & ▇▇▇▇▇ Commercial and Coldwell Banker
Commercial, fees set forth in a separate agreement between Sublessor and
Broker.
9. Compliance With Nondiscrimination
Regulations:
It is
understood that it is illegal for Sublessor to refuse to display or Sublease the
Subleased Premises, or to assign, surrender or sell the Master Lease, to any
person because of race, color, religion, national origin, sex, sexual
orientation, marital status or disability.
10. 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.
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.
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Sublease
Sublessor
and Sublessee each acknowledge that Broker 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.
11. Indemnity: Without
limiting any of the foregoing, Sublessee agrees to indemnify,
defend and hold harmless Sublessor as an Indemnified Party, according to the
terms of Section 21, with respect to Indemnified Matters, as defined in the
Master Lease.
12. Liability:
In no
event will Sublessee be liable for any indirect, incidental, consequential,
special or exemplary damages, lost rents or lost profits arising from, connected
with, or related to this agreement, if such liability results from any party
other than the Sublessee, including without limitation, the Tenant, Landlord,
other tenants in the facility, or their respective agents or visitors. The
limitations specified herein will survive and apply even if any limited remedy
specified in this agreement is found to have failed of its essential
purpose.
13. Rent
Abatement and Damages to Personal Property:
In the
event Sublessor, pursuant to the terms of the Master Lease, is entitled to and
receives rent abatement, then to the extent such rent abatement affects the
Subleased Premises, Sublessee shall be entitled to rent abatement in an amount
that the net rentable area of the Subleased Premises bears to the total net
rentable area of the Master Lease, and only to the extent any such abatement
applies to the Sublease term. In addition, any amounts paid or
credited to Sublessor under the terms of the Master Lease for damage to personal
property shall be credited to Sublessee, subject to the same limitations set
forth above.
Sublessor: PUREDEPTH,
INC.
By: _________________________________________ Date: _____________________________
Sublessee: PRECISE SOFTWARE SOLUTIONS,
INC.
By: _________________________________________ Date: _____________________________
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Sublease
NOTICE TO SUBLESSOR AND
SUBLESSEE:
CORNISH
& ▇▇▇▇▇ COMMERCIAL, IS NOT AUTHORIZED TO GIVE LEGAL OR TAX ADVICE; NOTHING
CONTAINED IN THIS SUBLEASE OR ANY DISCUSSIONS BETWEEN CORNISH & ▇▇▇▇▇ AND
SUBLESSOR AND SUBLESSEE SHALL BE DEEMED TO BE A REPRESENTATION OR RECOMMENDATION
BY CORNISH & ▇▇▇▇▇ COMMERCIAL, OR ITS AGENTS 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.
Attachment
I Master Lease
Master
Lessor Consent
The undersigned, Lessor
under the Master Lease attached as Attachment I, hereby consents to the
subletting of the Subleased Premises described herein on the terms and
conditions contained in this Sublease. This Consent shall apply only to this
Sublease and shall not be deemed to be a consent to any other
Sublease.
Lessor: THE REALTY ASSOCIATES
FUND VII, L.P., A DELAWARE LIMITED PARTNERSHIP
By: _________________________________________ Date: _____________________________
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