EXHIBIT 10.25
CONSENT TO SUBLEASE
Building: Plaza Tower
Premises: The 20th and 21st floors commonly known
as Suite 2000 and Suite 2100
Date of Master Lease: May 15, 1999
Date of First Amendment To Lease: February 26, 2001
Date of Assignment and
Assumption Agreement: October 30, 2002
Date of Sublease: May 28, 2004
Master Landlord: 600 Anton Boulevard Associates
Landlord: E*Trade Consumer Finance Corp. fka Ganis
Credit Corporation
Tenant: Commonwealth Energy Corporation
This Consent to Sublease ("Consent") dated as of May 28, 2004 is executed
by and among 600 Anton Boulevard Associates ("Master Landlord"), E*Trade
Consumer Finance Corp., a Delaware corporation fka Ganis Credit Corporation
("Landlord") and Commonwealth Energy Corporation, a California corporation
("Tenant") in connection with a proposed Sublease dated May 28, 2004
("Sublease"), affecting certain premises ("Tenant Premises") specified above and
more particularly described in that certain Lease dated May 15, 1999 by and
between Master Landlord and Landlord's predecessor in interest as such Lease has
been or may be amended or modified from time to time ("Master Lease"). A copy of
the Sublease is attached hereto as Exhibit "A" and incorporated by this
reference into this Consent.
Master Landlord hereby consents to the Sublease to Tenant upon the
following express terms and conditions and Master Landlord, Landlord and Tenant
hereby agree as follows:
A. Neither the Sublease nor this Consent shall:
1. Release or discharge Landlord from any liability, whether past,
present or future, under the Master Lease;
2. Operate as Master Landlord's consent to or approval of any of the
terms, covenants, conditions, provisions or agreements of the Sublease and
Master Landlord shall not be bound thereby;
3. Be construed to: (i) modify, waive, release or otherwise affect
any of the terms, covenants, conditions, provisions or agreements of the
Master Lease; (ii) waive any breach of the Master Lease; (iii) waive any
of Master Landlord's rights as Master Landlord thereunder; (iv) enlarge or
increase Master Landlord's obligations as Master Landlord thereunder; or
(v) enlarge or increase Landlord's and/or Tenant's rights and benefits in
excess of the rights and benefits applicable to Landlord under the Master
Lease;
4. Be construed as a consent by Master Landlord to: (i) any further
leasing or subletting either by Landlord or by Tenant; (ii) the assignment
by Landlord to Tenant
of any rights contained in the Master Lease to renew and/or extend the
term of the Master Lease or to expand the Premises; or (iii) any
assignment by Landlord of the Master Lease or assignment by Tenant of the
Sublease, whether or not the Sublease purports to permit the same; or
5. Be construed to permit Landlord or Tenant to assign, mortgage or
encumber the Sublease or to further sublease any portion of the Tenant
Premises or permit any portion of the Tenant Premises to be used or
occupied by any other party.
B. The Sublease is subordinate to the Master Lease and is subject to all
of its terms, covenants, conditions, provisions and agreements.
C. Tenant shall perform faithfully and be bound by all of the terms,
covenants, conditions, provisions and agreements of the Master Lease applicable
to the Tenant Premises for the period of the Sublease, as amended, as provided
for in the Sublease.
D. The Sublease is not given as security for a loan nor shall it be given
as security or otherwise encumbered by Tenant during the term of the Sublease or
any subsequent agreement without Master Landlord's prior written consent.
E. Landlord shall not be released from any liability under the Master
Lease, nor shall any liability of Landlord be decreased, because of Master
Landlord's failure to give notice of default under or in respect of any of the
terms, covenants, conditions, provisions or agreements of the Master Lease or
because of Master Landlord's direct conversations, communications or other
dealings with Landlord and/or Tenant.
F. In the event of Landlord's default under the provisions of the Master
Lease, the rent due from Tenant under the Sublease shall be deemed assigned to
Master Landlord, and Master Landlord shall have the right, but not the
obligation following such default, at any time at Master Landlord's option, to
give notice of such assignment to Tenant. Master Landlord shall credit Landlord
with any rent received and retained by Master Landlord under such assignment,
but the acceptance of any payment on account of rent from Tenant as the result
of any such default shall in no manner whatsoever be deemed an attornment by
Tenant to Master Landlord, or serve to release Landlord from any liability under
the terms, covenants, conditions, provisions or agreements under the Master
Lease. Master Landlord shall provide Tenant a copy of any notice of default
delivered to Landlord under the Master Lease.
G. In the event the Master Lease shall be terminated by Master Landlord
due to a default by Landlord on its obligations thereunder, or in the event of
the expiration of the Master Lease prior to the expiration of the Sublease,
Master Landlord shall have the right, in its sole discretion, to withdraw the
consent to the Sublease hereby given and terminate the Sublease. Within thirty
(30) days after the Tenant's receipt of notice, as set forth in Paragraph I
below, of Master Landlord's election to terminate the Sublease, Tenant shall
vacate the Tenant Premises. Upon such vacation by Tenant, Landlord and Tenant
shall cause the Tenant Premises to be in
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good condition and repair subject to ordinary wear and tear and damage by
casualty. The provisions of this Paragraph shall not limit Master Landlord's
remedies available pursuant to the Master Lease or at law or in equity.
H. Notwithstanding the foregoing, any other payment of rent from Tenant
directly to Master Landlord, regardless of the circumstances or reasons
therefor, shall in no manner whatsoever be deemed an attornment by Tenant to
Master Landlord or serve to release Landlord from any liability under the terms,
covenants, conditions, provisions or agreements under the Master Lease, in the
absence of a specific written agreement signed by Master Landlord to such an
effect.
I. In the event the Master Lease shall be terminated by Master Landlord
due to a default by Landlord on its obligations thereunder, or in the event of
the expiration of the Master Lease prior to the expiration of the Sublease, and
in the event that Master Landlord has not elected to terminate the Sublease
pursuant to Paragraph G above, then, Tenant, immediately upon receipt of
unilateral written notice from Master Landlord, hereby agrees to be bound to
Master Landlord under the terms, covenants and conditions of the Sublease for
the balance of the term thereof remaining with the same force and effect as if
Master Landlord were the Landlord under the Sublease, and Tenant shall attom to
Master Landlord as its Landlord upon the succession of Master Landlord to the
interest of Landlord under the Sublease, and Master Landlord, if it has sent
such notice, shall accept such attomment subject to the limitations contained in
this Consent. Such attomment shall be effective upon receipt of written notice
from Master Landlord and shall be self-operative without the execution of any
further instrument by either party hereto, except Tenant hereby agrees that it
will promptly execute and deliver any instruments which Master Landlord may
reasonably request to evidence such attomment.
J. Unless Master Landlord exercises its rights pursuant to Paragraph I
above, the term of the Sublease shall expire and come to an end on its
expiration date or any premature termination date thereof or concurrently with
any premature termination of the Master Lease (whether by consent or other
right, now or hereafter agreed to by Master Landlord or Landlord, or by
operation of law or at Master Landlord's option in the event of Landlord's
default under the Master Lease).
K. Both Landlord and Tenant shall be, and continue to be, liable for the
payment of all bills rendered by Master Landlord for charges incurred by Tenant
for services and materials supplied to the Tenant Premises.
L. This Consent is not assignable, nor shall this Consent be deemed a
consent to any amendment, modification, extension or renewal of the Sublease
(except as otherwise provided in Paragraph A.4. above) without Master Landlord's
prior express written consent.
M. Landlord and Tenant covenant and agree that under no circumstances
shall Master Landlord be liable for any brokerage commission or other charge or
expense in connection with the Sublease, and Landlord and Tenant agree to
indemnify Master Landlord against same and
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against any cost or expense (including, but not limited to, attorneys' fees)
incurred by Master Landlord in resisting any claim for any such brokerage
commission.
N. Landlord and Tenant understand and acknowledge that this Consent is not
a consent to any improvement or alteration to or in the Tenant Premises, and
prior to the undertaking by Landlord or Tenant of any improvement or alteration
to or in the Tenant Premises, Landlord shall obtain Master Landlord's prior
written consent as provided for under the Master Lease, and if such consent is
given, the same will be subject to Landlord and Tenant signing Master Landlord's
standard form of agreement with respect to improvement or alteration work being
performed by persons other than Master Landlord.
O. Any notices, consents or demands given pursuant to this Consent by the
parties hereto shall be in writing. Unless otherwise required by law or
governmental regulation, any such notice, consent or demand shall be deemed
given if delivered personally or sent by registered or certified mail, return
receipt requested, postage prepaid (a) to Master Landlord, at the address
indicated below or to such other address or notice party as Master Landlord may
from time-to-time designate by notice in writing to Tenant; or (b) to Tenant, at
the address indicated below or to such other address or notice party as Tenant
may from time-to-time designate by notice in writing to Master Landlord. Any
such notice shall be deemed given at the time same is personally delivered to
the other party or forty-eight (48) hours after mailing as provided herein.
During the period of any postal strike or other interference with the mails,
personal delivery shall be substituted for registered or certified mail. For
purposes of this Paragraph, Master Landlord's address shall be:
600 Anton Boulevard Associates
c/o Three Town Center
3315 FairviewRoad
Costa Mesa, CA. 92626
Attn: 600 Anton Boulevard Controller
and
600 Anton Boulevard Associates Suite 930
650 Town Center Drive Costa Mesa, CA.
92626 Attn: Property Manager
and Tenant's address shall be:
Commonwealth Energy Corporation
600 Anton Boulevard
Suite 2000
Costa Mesa, CA. 92626
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P. The execution of a copy of this Consent, without change or
modification, by Landlord and by Tenant shall be a condition precedent to the
effectiveness of this Consent and shall indicate your joint and several
confirmation of the foregoing conditions and of your joint and several agreement
to be bound thereby and shall constitute Tenant's acknowledgment that it has
received a copy of the Master Lease from Landlord.
Q. This Consent shall not be effective unless and until executed by all of
the parties, and when fully executed shall bind and inure to the benefit of all
successors and assigns of each party.
R. As between Master Landlord and Landlord or between Master Landlord and
Tenant, in the event of any conflict between the Sublease and the Master Lease,
or between the Sublease and this Consent, the Master Lease or this Consent, as
applicable, shall prevail.
S. Landlord hereby ratifies and confirms its obligations under the Master
Lease. Landlord and Master Landlord acknowledge that neither Master Landlord nor
Landlord is in default under the Master Lease and that Landlord has no existing
claim against Master Landlord or right of offset or defense against enforcement
by Master Landlord of the obligations of Landlord under the Master Lease.
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This Consent contains the entire agreement of the parties hereto with
respect to the subject matter hereof. This Consent may be executed in
counterparts which upon execution by all parties shall constitute one integrated
agreement.
MASTER LANDLORD:
600 ANTON BOULEVARD ASSOCIATES,
a California general partnership
By: Three Town Center,
a California general partnership
Managing Partner
By: [ILLEGIBLE] APPROVED AS TO FORM
----------- VAN ETTEN SUZUMOTO & BECKET LLP
Manager
By: [ILLEGIBLE] BY: /s/ THOMAS L BECKET
----------- ---------------------
Manager THOMAS L BECKET, ESQ.
LANDLORD:
E*TRADE CONSUMER FINANCE CORP.,
a Delaware corporation
By: [ILLEGIBLE]
-----------
Its: CTO/CAO
By: _________________
Its: ________________
TENANT:
COMMONWEALTH ENERGY CORPORATION,
a California corporation
By: /s/ IAN B. CARTER
---------------------
Its: CEO
By: /s/ JOHN A. BARTHROP
---------------------
Its: Secretary
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EXHIBIT "A"
[the Sublease]
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SUBLEASE AGREEMENT
This Sublease Agreement ("Sublease") is made effective as of the 28th day
of May, 2004, (the "Effective Date") by and between E*TRADE CONSUMER FINANCE
CORP., a Delaware corporation fka GANIS CREDIT CORPORATION ("Sublessor"), and
Commonwealth Energy Corporation, a California corporation ("Sublessee").
Sublessor agrees to sublease to Sublessee, and Sublessee agrees to sublease from
Sublessor, those certain premises situated in the City of Costa Mesa, County of
Orange, State of California, consisting of approximately 38,677 square feet of
space consisting of the entire 20th and 21st floors of the building known as
Plaza Tower, located at 600 Anton Boulevard, Costa Mesa, California
("Building"), more particularly set forth on Exhibit "A" hereto (the "Subleased
Premises").
ARTICLE 1
MASTER LEASE AND OTHER AGREEMENTS
1.1 Subordinate to Master Lease. Except as specifically set forth herein,
this Sublease is subject and subordinate to all of the terms and conditions of
the lease (the "Original Lease") dated on May 15, 1999, between 600 Anton
Boulevard Associates, a California general partnership ("Master Lessor") and
Deutsche Financial Services Corporation, a Nevada corporation, as "Lessee", as
amended by that certain First Amendment to lease made and entered into the 26th
day of February, 2001 (the "First Amendment") and assigned to Sublessor's
predecessor in interest Ganis Credit Corporation, a California corporation (the
"Assignee"). The Original Lease, the First Amendment and the Assignment are
collectively referred to herein as the "Master Lease". Sublessee hereby assumes
and agrees to perform the obligations of Lessee under the Master Lease as more
particularly set forth hereafter. Unless otherwise defined, all capitalized
terms used herein shall have the same meanings as given them in the Master
Lease. A copy of the Master Lease is attached hereto as Exhibit "B" and
incorporated herein by this reference. Sublessee shall not commit or permit to
be committed any act or omission which would violate any term or condition of
the Master Lease. Sublessee shall neither do nor permit anything to be done
which would cause the Master Lease to be terminated or forfeited by reason of
any right of termination or forfeiture reserved or vested in Master Lessor under
the Master Lease, and Sublessee shall indemnify and hold Sublessor harmless from
and against all liability, judgments, costs, demands, claims, and damages of any
kind whatsoever (including, without limitation, attorneys' fees and court costs)
by reason of any failure on the part of Sublessee to perform any of the
obligations of Lessee under the Master Lease which Sublessee has become
obligated hereunder to perform. In the event of the termination of Sublessor's
interest as Lessee under the Master Lease for any reason other than for
Sublessor's breach, then this Sublease shall terminate automatically upon such
termination without any liability of Master Lessor or Sublessor to Sublessee.
Sublessee represents and warrants to Sublessor that it has read and is familiar
with the Master Lease.
1.2 Applicable Provisions. All of the terms and conditions contained in
the Master Lease as they may apply to the Subleased Premises, except those
directly contradicted by the terms and conditions contained in this document,
and specifically except for Paragraphs paragraph 1, 2, 3(a), the last sentence
of 3(f), 4, 6(a), 6(b) (except for the first sentence), 6(c),
20(j), 24, 27, 29, 30(b), 34, 48.1, 48.3, 48.4, 48.5, 48.9, 48.10, 48.11, 48.13,
48.14, Exhibit B and First Amendment are incorporated herein and shall be terms
and conditions of this Sublease (with each reference therein to "Landlord" or
"Lessor", "Tenant" or "Lessee" and "Lease" to be deemed to refer to Sublessor,
Sublessee, and Sublease, respectively, as appropriate except the following
provisions that are incorporated herein, the reference to Landlord or Lessor
shall mean Master Lessor only: 3(f) (first two sentences), the first sentence of
5(a), 10(a), 20(f), 48.6,) and along with all of the following terms and
conditions set forth in this document, shall constitute the complete terms and
conditions of this Sublease.
1.3 Obligations of Sublessor. Notwithstanding anything herein contained,
the only services or rights to which Sublessee is entitled hereunder are those
to which Sublessor is entitled under the Master Lease, and for all such services
and rights Sublessee shall look solely to the Master Lessor under the Master
Lease, and the obligations of Sublessor hereunder shall be limited to using its
reasonable good faith efforts to obtain the performance by Master Lessor of its
obligations. Sublessor shall have no liability to Sublessee or any other person
for damage of any nature whatsoever as a result of the failure of Master Lessor
to perform said obligations except for Master Lessor's termination of the
Sublessor's interest as Lessee under the Master Lease in the event of
Sublessor's breach of the Master Lease, and Sublessee shall indemnify and hold
Sublessor harmless from any and all claims and liability whatsoever for any such
damage including, without limitation, all costs and attorneys' fees incurred in
defending against same. With respect to any obligation of Sublessee to be
performed under this Sublease, when the Master Lease grants Sublessor a specific
number of days to perform its obligations thereunder, Sublessee shall have two
(2) fewer days to perform. With respect to approval required to be obtained by
"Landlord" under the Master Lease, such consent must be obtained from Master
Lessor and Sublessor and the approval of Sublessor may be withheld if Master
Lessor's consent is not obtained.
ARTICLE 2
TERM
2.1 Term. The term of this Sublease shall commence on July 1, 2004,
provided Sublessor has received Master Lessor's consent to this Sublease. This
shall be referred to as the "Commencement Date." The term of this Sublease shall
end on September 6, 2009, unless sooner terminated pursuant to any provision of
the Master Lease applicable to the Subleased Premises (the "Expiration Date").
Sublessor shall have no obligation to Sublessee to exercise any of its options
to extend under the Master Lease.
2.2 Option to Extend. Sublessee shall have no option to extend this
Sublease.
2.3 Sublessor's Inability to Deliver Subleased Premises. In the event
Sublessor is unable to deliver possession of the Subleased Premises on or before
July 1, 2004, 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.
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2.4 Early Access. Upon the date of (i) mutual execution hereof; (ii)
receipt of the Security Deposit and first months Base Rent; and (iii) execution
of the Entry and Indemnity Agreement attached hereto as Exhibit E, Sublessee
shall have reasonable access to the Subleased Premises for the purposes of
installing Sublessee's furniture, fixtures and communication equipment ("Early
Access"). Sublessee's access shall be subject to all the terms and conditions of
the Entry and Indemnity Agreement and this Sublease, including without
limitation, all insurance and maintenance obligations, and all monetary
obligations except the payment of Base Rent.
ARTICLE 3
RENT
3.1 Rent. Sublessee shall pay to Sublessor each month during the term of
this Sublease, rent in the amount of Seventy-One Thousand Five Hundred Fifty-Two
and 45/100 Dollars ($71,552.45), in advance, on execution hereof for the first
month and on or before the first of each month thereafter ("Base Rent"). Rent
for partial months at the commencement or termination of this Sublease shall be
prorated. Rent shall be paid to the Sublessor at its business address noted
herein, or at any other place Sublessor may from time to time designate by
written notice mailed or delivered to Sublessee.
3.2 Additional Rent. Any other sums payable by Sublessee under this
Article 3 shall constitute and be due as additional rent. Base Rent, and
additional rent if any, shall herein be referred to as "Rent".
3.2.1 Additional Rent Under the Master Lease. If Sublessor shall be
charged for additional rent or other sums pursuant to any of the provisions of
the Master Lease, Sublessee shall be liable, commencing January 1, 2006, for its
pro rata share of increase in such additional rent or sums over the base
calendar year of 2005 ("Base Year"). Sublessee's pro rata share under this
Sublease shall be calculated by multiplying the total additional rent or other
charge due by a fraction, the numerator of which shall be the approximate square
footage of the Subleased Premises and the denominator of which shall be the
approximate square footage of the entire premises under the Master Lease. All
measurements noted in this Section are included in the Master Lease. Sublessee
acknowledges all square footage measurements noted and relied on in this
Sublease and the Master Lease are estimates, and no adjustments shall be made
based upon any actual measurements which may be made. If Sublessee shall procure
any additional services from Master Lessor, or if additional rent or other sums
are incurred for Sublessee's sole benefit, Sublessee shall make such payment to
Sublessor or Master Lessor, as Sublessor shall direct and such charges shall not
be pro rated between Sublessor and Sublessee.
3.2.2 Additional Rent Under the Sublease. As and for additional
rent, Sublessee shall be responsible, commencing January 1, 2006, for its pro
rata share of expenses incurred by Sublessor for the operation and maintenance
of the Premises, including, without limitation, Sublessor's insurance as
"Tenant" under the Master Lease. Sublessor shall invoice Sublessee
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monthly and Sublessee shall pay its pro rata share of such additional rent
within ten (10) days of invoice.
ARTICLE 4
SECURITY DEPOSIT
4.1 Security Deposit. Upon execution hereof. Sublessee shall deposit with
Sublessor the sum of Two Hundred Fourteen Thousand Six Hundred Fifty-Seven and
35/100 Dollars ($214,657.35) as and for a Security Deposit to secure Sublessee's
full and timely performance of all of its obligations hereunder. If Sublessee
fails to pay Rent or any other sums as and when due hereunder, or otherwise
defaults and/or fails to perform with respect to any provision of this Sublease,
Sublessor may (but shall not be obligated to) use, apply, or retain all or any
portion of said deposit for payment of any sum for which Sublessee is obligated
or which will compensate Sublessor for any foreseeable or unforeseeable loss or
damage which Sublessor may suffer thereby including, without limitation, any
damage that will result in the future through the term of the Sublease, to
repair damage to the Subleased Premises, to clean the Subleased Premises at the
end of the term or for any loss or damage caused by the act or omission of
Sublessee or Sublessee's officers, agents, employees, independent contractors or
invitees. Sublessee waives the provisions of California Civil Code Section
1950.7 and all other provisions of law now in force or that become in force
after the date of execution of this Sublease that provide that Sublessor may
claim from a security deposit only those sums reasonably necessary to remedy
defaults in the payment of Rent, to repair damage caused by Sublessee or to
clean the Subleased Premises. Any such use, application, or retention shall not
constitute a waiver by Sublessor of its right to enforce its other remedies
hereunder, at law, or in equity. If any portion of said deposit is so used,
applied, or retained. Sublessee shall, within ten (10) days after delivery of
written demand from Sublessor, restore said deposit to its original amount.
Sublessee's failure to do so shall constitute a material breach of this
Sublease, and in such event Sublessor may elect, among or in addition to other
remedies, to terminate this Sublease. Sublessor shall not be a trustee of such
deposit, and shall not be required to keep this deposit separate from its
accounts. Sublessor alone shall be entitled to any interest or earnings thereon
and Sublessor shall have the free use of same. If Sublessee fully and faithfully
performs all of its obligations hereunder, then so much of the deposit as
remains shall be returned to Sublessee (without payment of interest or earnings
thereon) within 30 days after the later of(i) expiration or sooner termination
of the term hereof, or (ii) Sublessee's surrender of possession of the Subleased
Premises to Sublessor.
4.2 Reduction of the Security Deposit.
4.2.1 Provided Sublessee is not in default hereunder and has not
been in default at anytime during the term hereof, at the end of the thirtieth
(30th) month, the Security Deposit shall be reduced by the amount of Seventy-One
Thousand Five Hundred Fifty-Two and 45/100 Dollars ($71,552.45), which Sublessor
shall apply to the thirty-first (31st) month of the term.
4.2.2 Provided Sublessee is not in default hereunder and has not
been in default at anytime during the term hereof, in addition to the reduction
set forth in subsection 4.2.1 above, at the end of the forty-second (42nd)
month, the Security Deposit shall be reduced by the amount
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of Seventy-One Thousand Five Hundred Fifty-Two and 45/100 Dollars ($71,552.45),
which Sublessor shall apply to the forty-third (43rd) month of the term.
ARTICLE 5
CONDITION OF SUBLEASED PREMISES
5.1 Condition of the Subleased Premises. Sublessee acknowledges that as of
the Commencement Date, the Subleased Premises, and every part thereof, are in
good condition and without need of repair, and Sublessee accepts the Subleased
Premises "AS IS", Sublessee having made all investigations and tests it has
deemed necessary or desirable in order to establish to its own complete
satisfaction the condition of the Subleased Premises. Sublessee accepts the
Subleased Premises in their condition existing as of the Commencement Date,
subject to all applicable zoning, municipal, county and state laws, ordinances,
and regulations governing and regulating the use of the Subleased Premises and
any covenants or restrictions of record. Sublessee acknowledges that neither
Sublessor nor Master Lessor have made any representations or warranties as to
the condition of the Subleased Premises or its present or future suitability for
Sublessee's purposes.
5.2 Surrender. Sublessee shall keep the Subleased Premises, and every part
thereof in good order and repair. In addition to Sublessee's requirements under
the Master Lease, Sublessee shall surrender the Subleased Premises in the same
condition as received, ordinary wear and tear excepted, provided Sublessee
performs all necessary maintenance, repair and cleaning to maintain the
Subleased Premises in the condition it was delivered at the Early Access Date.
Notwithstanding the foregoing, if Master Lessor consents in writing the
surrender of the Subleased Premises in any condition other than as set forth
hereinabove, without liability to Sublessor, Sublessee shall be entitled to
surrender the Subleased Premises in such condition as consented to by Master
Lessor.
ARTICLE 6
INSURANCE
6.1 Sublessee's Insurance With respect to the Tenant's insurance under the
Master Lease, the same is to be provided by Sublessee as described in the Master
Lease, and such policies of insurance shall include as additional insureds
Master Lessor, Sublessor and any lender as required by Master Lessor.
6.2 Waiver of Subrogation. With respect to the waiver of subrogation
contained in the Master Lease, such waiver shall be deemed to be modified to
constitute an agreement by and among Master Lessor, Sublessor and Sublessee (and
Master Lessor's consent to this Sublease shall be deemed to constitute its
approval of this modification).
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ARTICLE 7
USE OF SUBLEASED PREMISES: PARKING: IMPROVEMENTS
7.1 Use of Subleased Premises Sublessee shall use the Subleased Premises
only for those purposes permitted in the Master Lease.
7.2 Alterations: Improvements Sublessee shall not make any alterations,
improvements, or modifications to the Subleased Premises without the express
prior written consent of Sublessor and of Master Lessor, which consent by
Sublessor shall not be unreasonably withheld. Sublessee shall reimburse Master
Lessor and Sublessor for all costs which Master Lessor and Sublessor may incur
in connection with granting approval to Sublessee for any alterations and
additions, including, without limitation. Master Lessor's and Sublessor's
reasonable attorneys' fees and costs. Sublessee shall provide Master Lessor and
Sublessor with a set of "as-built" drawings for any such work, together with
copies of all permits obtained by Sublessee in connection with performing any
such work, within fifteen (15) days after completing such work. Sublessor may
impose as a condition of its consent to such alterations, improvements, or
modifications, such requirements as Sublessor may deem reasonable and desirable,
including, but not limited to the requirement that materialmen be approved by
Sublessor and that Sublessee, and/or Sublessee's contractors) post a payment
and/or completion bond to guarantee the performance of its construction
obligations hereunder. On termination of this Sublease, Sublessee shall remove
any or all of such improvements and restore the Subleased Premises (or any part
thereof) to the same condition as of the Commencement Date of this Sublease,
reasonable wear and tear excepted or as otherwise instructed in writing by
either Sublessor or Master Lessor. Should Sublessee fail to remove such
improvements and restore the Subleased Premises on termination of this Sublease
unless instruction otherwise in writing as set forth above. Sublessor shall have
the right to do so, and charge Sublessee therefor, plus a service charge often
percent (10%) of the costs incurred by Sublessor.
7.3 Parking. So long as Sublessee is not in default and subject to the
rules and regulations imposed from time to time by Master Lessor or Sublessor,
Sublessee shall have the right to the non-exclusive use of One Hundred Eleven
(111) Base Parking Contracts (as defined in the Master Lease) and exclusive use
of Five (5) reserved Base Parking Contracts (as defined in the Master Lease) in
the common parking areas under parking contracts with the Master Lessor. Such
One Hundred Sixteen (116) parking contracts shall be at no additional charge to
Sublessee during the term of the Sublease. At any time during the term of this
Sublease and upon thirty (30) days prior notice, Master Lessor may require
Sublessee to convert up to 25% of its parking contracts to Rooftop Parking (as
defined in the Master Lease). Such parking contracts and use of the parking
areas are subject to the rules and regulations imposed from time to time by
Master Lessor.
ARTICLE 8
ASSIGNMENT. SUBLETTING & ENCUMBRANCE
8.1 Consent Required. Sublessee shall not assign this Sublease or any
interest therein nor shall Sublessee sublet, license, encumber or permit the
Subleased Premises or any part
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thereof to be used or occupied by others, without Sublessor's and Master
Lessor's prior written consent. Sublessor's consent shall not be unreasonably
withheld provided, however. Sublessor's withholding of consent shall in all
events be deemed reasonable if for any reason Master Lessor's consent is not
obtained. The consent by Sublessor and Master Lessor to any assignment or
subletting shall not waive the need for Sublessee (and Sublessee's assignee or
Sublessee) to obtain the consent of Sublessor and Master Lessor to any different
or further assignment or subletting. All Conditions and Standards set forth in
the Master Lease regarding assignments and subletting shall apply.
8.2 Form of Document. Every assignment, agreement, or sublease shall (i)
recite that it is and shall be subject and subordinate to the provisions of this
Sublease, that the assignee or Sublessee assumes Sublessee's obligation
hereunder, that the termination of this Sublease shall at Sublessor's sole
election, constitute a termination of every such assignment or sublease, and
(ii) contain such other terms and conditions as shall be reasonably requested or
provided by Sublessor's attorneys.
8.3 No Release of Sublessee. Regardless of Sublessor's consent, no
subletting or assignment shall release Sublessee of Sublessee's obligation or
alter the primary liability of Sublessee to pay the Rent and to perform all
other obligations to be performed by Sublessee hereunder. The acceptance of Rent
by Sublessor from any other person shall not be deemed to be a waiver by
Sublessor of any provision hereof. In the event of default by any assignee,
subtenant or any other successor of Sublessee, in the performance of any of the
terms hereof, Sublessor may proceed directly against Sublessee without the
necessity of exhausting remedies against such assignee, subtenant or successor.
8.4 Default. An involuntary assignment shall constitute a default and
Sublessor shall have the right to elect to terminate this Sublease, in which
case this Sublease shall not be treated as an asset of Sublessee.
8.5 Recapture. Notwithstanding the foregoing, in the event Sublessee
requests Sublessor's consent to sublet all or any portion of the Subleased
Premises, or to assign this Sublease, Sublessor may in its sole discretion,
elect to terminate this Sublease within fifteen (15) days after receipt of
Sublessee's request by written notification to Sublessee of such election, in
which case the Sublease shall terminate effective thirty (30) days following
such election.
ARTICLE 9
DEFAULT
9.1 Default Described. The occurrence of any of the following shall
constitute a material breach of this Sublease and a default by Sublessee: (i)
failure to pay Rent or any other amount within three (3) business days after
due; (ii) all those items of default set forth in the Master Lease which remain
uncured after the cure period provided in the Master Lease; or (iii) Sublessee's
failure to perform timely and subject to any cure periods any other material
provision of this Sublease or the Master Lease as incorporated herein.
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9.2 Sublessor's Remedies. Sublessor shall have the remedies set forth in
the Master Lease as if Sublessor is Master Lessor. These remedies are not
exclusive; they are cumulative and in addition to any remedies now or later
allowed by law.
9.3 Sublessee's Right to Possession Not Terminated. Sublessor has the
remedy described in California Civil Code Section 1951.4 (lessor may continue
lease in effect after lessee's breach and abandonment and recover rent as it
becomes due, if lessee has right to sublet or assign, subject only to reasonable
limitations). Sublessor may continue this Sublease in full force and effect, and
Sublessor shall have the right to collect rent and other sums when due. During
the period Sublessee is in default. Sublessor may enter the Subleased Premises
and relet them, or any part of them, to third parties for Sublessee's account
and alter or install locks and other security devices at the Subleased Premises.
Sublessee shall be liable immediately to Sublessor for all costs Sublessor
incurs in reletting the Subleased Premises, including, without limitation,
attorneys' fees, brokers' commissions, expenses of remodeling the Subleased
Premises required by the reletting, and like costs. Reletting may be for a
period equal to, shorter or longer than the remaining term of this Sublease and
rent received by Sublessor shall be applied to (i) first, any indebtedness from
Sublessee to Sublessor other than rent due from Sublessee; (ii) second, all
costs incurred by Sublessor in reletting, including, without limitation,
brokers' fees or commissions and attorneys fees, the cost of removing and
storing the property of Sublessee or any other occupant, and the costs of
repairing, altering, maintaining, remodeling or otherwise putting the Subleased
Premises into condition acceptable to a new Sublessee or Sublessees; (iii)
third, rent due and unpaid under this Sublease. After deducting the payments
referred to in this subsection 9.3, any sum remaining from the rent Sublessor
receives from reletting shall be held by Sublessor and applied in payment of
future rent and other amounts as rent and such amounts become due under this
Sublease. In no event shall Sublessee be entitled to any excess rent received by
Sublessor.
9.4 All Sums Due and Payable as Rent. Sublessee shall also pay without
notice, or where notice is required under this Sublease, immediately upon demand
without any abatement, deduction, or setoff, as additional rent all sums,
impositions, costs, expenses, and other payments which Sublessee in any of the
provisions of this Sublease assumes or agrees to pay, and, in case of any
nonpayment thereof, Sublessor shall have, in addition to all other rights and
remedies, all the rights and remedies provided for in this Sublease or by law in
the case of nonpayment of rent.
9.5 No Waiver. Sublessor may accept Sublessee's payments without waiving
any rights under the Sublease, including rights under a previously served notice
of default. No payment by Sublessee or receipt by Sublessor of a lesser amount
than any installment of rent due or other sums shall be deemed as other than a
payment on account of the amount due, nor shall any endorsement or statement on
any check or accompanying any check or payment be deemed an accord and
satisfaction; and Sublessor may accept such check or payment without prejudice
of Sublessor's right to recover the balance of such rent or other sum or pursue
any other remedy provided in this Sublease, at law or in equity. If Sublessor
accepts payments after serving a notice of default. Sublessor may nevertheless
commence and pursue an action to enforce rights and remedies under the
previously served notice of default without giving Sublessee any further notice
or demand. Furthermore, the Sublessor's acceptance of rent from Sublessee when
the Sublessee is holding over without express written consent does not convert
Sublessee's tenancy from a tenancy at sufferance to a month-to-month tenancy. No
waiver of any provision of this
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Sublease shall be implied by any failure of Sublessor to enforce any remedy for
the violation of that provision, even if that violation continues or is
repeated. Any waiver by Sublessor of any provision of this Sublease must be in
writing. Such waiver shall affect only the provisions specified and only for the
time and in the manner stated in the writing. No delay or omission in the
exercise of any right or remedy by Sublessor shall impair such right or remedy
or be construed as a waiver thereof by Sublessor. No act or conduct of
Sublessor, including, without limitation the acceptance of keys to the Subleased
Premises shall constitute acceptance or the surrender of the Subleased Premises
by Sublessee before the Expiration Date. Only written notice from Sublessor to
Sublessee of acceptance shall constitute such acceptance or surrender of the
Subleased Premises. Sublessor's consent to or approval of any act by Sublessee
which requires Sublessor's consent or approval shall not be deemed to waive or
render unnecessary Sublessor's consent to or approval of any subsequent act by
Sublessee.
9.6 Sublessor Default. For purposes of this Sublease, Sublessor shall not
be deemed in default hereunder unless and until Sublessee shall first deliver to
Sublessor thirty (30) days' prior written notice, and Sublessor shall fail to
cure said default within said thirty (30) day period, or in the event Sublessor
shall reasonably require in excess of thirty (30) days to cure said default,
shall fail to commence said cure with said thirty (30) day period, and
thereafter diligently to prosecute the same to completion.
9.7 Notice of Event of Default under Master Lease. 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 Master Lessor of an
Event of Default or Sublessor's actual knowledge of such impairment.
ARTICLE 10
CONSENT OF MASTER LESSOR
10.1 Precondition. The Master Lease requires that Sublessor obtain the
consent of Master Lessor to any subletting by Sublessor. This Sublease shall not
be effective unless and until Master Lessor signs a consent to this subletting
satisfactory to Sublessor.
ARTICLE 11
HAZARDOUS MATERIALS
11.1 Hazardous Materials. Notwithstanding anything contained herein or in
the Master Lease to the contrary, Sublessee shall not store, use, or dispose of
any Hazardous Material (as such is defined in the Master Lease) on, under, or
about the Subleased Premises.
11.2 Indemnity. Sublessee shall be solely responsible for and shall
defend, indemnify and hold Sublessor and its partners, employees and agents
harmless from and against all claims, penalties, expenses and liabilities,
including attorneys' and consultants' fees and costs, arising out of or caused
in whole or in part, directly or indirectly, by or in connection with its
storage, use, disposal or discharge of Hazardous Materials whether in violation
of this section or not, or
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Sublessee's failure to comply with any Hazardous Materials law. Sublessee shall
further be solely responsible for and shall defend, indemnify and hold Sublessor
harmless from and against any and all claims, costs and liabilities, including
attorneys' and consultants' fees and costs, arising out of or in connection with
the removal, cleanup, detoxification, decontamination and restoration work and
materials necessary to return the Subleased Premises to their condition existing
prior to Sublessee's storage, use or disposal of the Hazardous Materials on the
Subleased Premises. For the purposes of the indemnity provisions hereof, any
acts or omissions of Sublessee or by employees, agents, assignees, contractors
or subcontractors of Sublessee (whether or not they are negligent, intentional
or unlawful) shall be strictly attributable to Sublessee. Sublessee's
obligations under this section shall survive the termination of this Sublease.
ARTICLE 12
MISCELLANEOUS
12.1 Conflict with Master Lease: Interpretation. In the event of any
conflict between the provisions of the Master Lease and this Sublease, the
Master Lease shall govern and control except to the extent directly contradicted
by the terms of this Sublease. No presumption shall apply in the interpretation
or construction of this Sublease as a result of Sublessor having drafted the
whole or any part hereof.
12.2 Remedies Cumulative. The rights, privileges, elections, and remedies
of Sublessor in this Sublease, at law, and in equity are cumulative and not
alternative.
12.3 Waiver of Redemption. Sublessee hereby expressly waives any and all
rights of redemption to which it may be entitled by or under any present or
future laws in the event Sublessor shall obtain a judgment for possession of the
Subleased Premises.
12.4 Damage and Destruction: Condemnation. Notwithstanding anything
contained in the Master Lease to the contrary, in the event of any damage,
destruction, casualty, condemnation or threat of condemnation affecting the
Subleased Premises, Rent payable hereunder shall not be abated except to the
extent that Rent is abated under the Master Lease with respect to the Subleased
Premises. Sublessee shall have no right to terminate this Sublease in connection
with any damage, destruction, casualty, condemnation or threat of condemnation
except to the extent the Master Lease is also terminated as to the Subleased
Premises.
12.5 Holding Over. Sublessee shall have no right to Holdover. If Sublessee
does not surrender and vacate the Subleased Premises at Expiration Date of this
Sublease, Sublessee shall be a tenant at sufferance and the parties having
agreed that the Rent shall be at the greater of (1) the daily rate of two
hundred percent (200%) of the monthly Rent set forth in Article 3, divided by
thirty (30) days or (2) the daily rate of two hundred percent (200%) of the Rent
due to Master Lessor from Sublessor under the Master Lease for the Subleased
Premises divided by thirty (30) days, together with any additional rent due and
payable during such period of time. In connection with the foregoing. Sublessor
and Sublessee agree that the reasonable rental value of the Subleased Premises
following the Expiration Date of the Sublease shall be the amounts set forth
above per month. Sublessor and Sublessee acknowledge and agree that, under the
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circumstances existing as of the Effective Date, it is impracticable and/or
extremely difficult to ascertain the reasonable rental value of the Subleased
Premises on the Expiration Date and that the reasonable rental value established
herein is a reasonable estimate of the damage that Sublessor would suffer as the
result of the failure of Sublessee to timely surrender possession of the
Subleased Premises. The parties acknowledge that the liquidated damages
established herein is not intended as a forfeiture or penalty within the meaning
of California Civil Code sections 3275 or 3369, but is intended to constitute
liquidated damages to Sublessor pursuant to California Civil Code sections 1671,
1676, and 1677. Notwithstanding the foregoing, and in addition to all other
rights and remedies on the part of Sublessor if Sublessee fails to surrender the
Subleased Premises upon the termination or expiration of this Sublease, in
addition to any other liabilities to Sublessor accruing therefrom, Sublessee
shall indemnify, defend and hold Sublessor harmless from all claims resulting
from such failure, including, without limitation, any claims by any third
parties based on such failure to surrender and any lost profits to Sublessor
resulting therefrom.
12.6 Signage. Sublessee shall not place any signs on or about the
Subleased Premises without Sublessor's and Master Lessor's prior written
consent. All signs shall be at Sublessee's sole cost and shall comply with the
terms of the Master Lease and with all local, federal and state rules,
regulations, statutes, and ordinances at all times during the term hereof.
Sublessee acknowledges and agrees that its request for consent to signage shall
be limited to Building standard suite signage at the Subleased Premises and
lobby directory signage. Sublessee, at Sublessee's cost, shall remove all such
signs and graphics prior to the termination of this Sublease and repair any
damage caused by such removal. Sublessor shall use commercially reasonable
efforts, without the requirement to incur any costs, to assist Sublessee in
obtaining such signage
12.7 Offer. Preparation of this Sublease by either Sublessor or Sublessee
or either parties' agent and submission of same to Sublessor or Sublessee shall
not be deemed an offer to Sublease. This Sublease is not intended to be binding
until executed and delivered by all Parties hereto.
12.8 Due Authority. If Sublessee signs as a corporation, each of the
persons executing this Sublease on behalf of Sublessee represent and warrant
that they have the authority to bind Sublessee, Sublessee has been and is
qualified to do business in the State of California, that the corporation has
full right and authority to enter into this Sublease, and that all persons
signing on behalf of the corporation were authorized to do so by appropriate
corporate actions. If Sublessee signs as a partnership, trust or other legal
entity, each of the persons executing this Sublease on behalf of Sublessee
represent and warrant that they have the authority to bind Sublessee, Sublessee
has complied with all applicable laws, rules and governmental regulations
relative to its right to do business in the State of California and that such
entity on behalf of the Sublessee was authorized to do so by any and all
appropriate partnership, trust or other actions. Sublessee agrees to furnish
promptly upon request a corporate resolution, proof of due authorization by
partners, or other appropriate documentation evidencing the authorization of
Sublessee to enter into this Sublease.
12.9 Multiple Counterparts. This Sublease may be executed in two or more
counterparts, which when taken together shall constitute one and the same
instrument. The
11
parties contemplate that they may be executing counterparts of this Sublease
transmitted by facsimile and agree and intend that a signature by facsimile
machine shall bind the party so signing with the same effect as though the
signature were an original signature.
12.10 Building Contaminants. To prevent the contamination, growth, or
deposit of any mold, mildew, bacillus, virus, pollen, or other micro-organism
(collectively, "Biologicals") and the deposit, release or circulation of any
indoor contaminants including emissions from paint, carpet and drapery
treatments, cleaning, maintenance and construction materials and supplies,
pesticides, pressed wood products, insulation, and other materials and products
(collectively with Biologicals, "Contaminants") that could adversely affect the
health, safety or welfare of any tenant, employee, or other occupant of the
Building or their invitees (each, an "Occupant"), Sublessee shall, at
Sublessee's sole cost and expense, at all times during the term hereof (1)
operate the Subleased Premises in such a manner to reasonably prevent or
minimize the accumulation of stagnant water and moisture in planters, kitchen
appliances and vessels, carpeting, insulation, water coolers, and any other
locations where stagnant water or moisture could accumulate, and (2) otherwise
operate the Subleased Premises to prevent the generation, growth, deposit,
release or circulation of any Contaminants.
ARTICLE 13
USE OF FURNITURE
13.1 Use. Sublessee may use certain furniture, work stations and office
equipment located in the Subleased Premises as set forth on Exhibit "C"
("Furniture"). Sublessee accepts the Furniture in its "as is" condition.
Sublessor makes no warranty, other than as to title, as to the condition of the
Furniture or its present or future suitability for Sublessee's purposes. Upon
termination of this Sublease, Sublessee shall return the Furniture to Sublessor
in the same condition as received, ordinary wear and tear excepted conditioned
on the obligation of Sublessee to use the Furniture in a careful and proper
manner and to clean and repair the Furniture in the manner necessary to maintain
the Furniture in the condition it was initially provided to Sublessee. Sublessee
shall be liable for any damage to the Furniture and solely responsible for all
costs associated with the maintenance, cleaning and repair of the Furniture.
13.2 Right to Purchase Furniture. Provided (i) Sublessee is not in default
under the terms and conditions of this Sublease or the Master Lease hereunder
and (ii) the Expiration Date under the Sublease occurs concurrently with the
expiration or sooner termination of the Master Lease then on the Expiration
Date, Sublessee shall have the option of purchasing the Furniture for the sum of
One Dollar ($1.00), pursuant to the Bill of Sale attached hereto as Exhibit "D".
ARTICLE 14
BROKER'S COMMISSIONS
14.1 Commission. Sublessor and Sublessee represent and warrant to each
other that each has dealt with the following brokers South Coast Plaza
(Sublessor's Broker) and CB Richard Ellis (Sublessee's Broker) and with no other
agent, finder, or other such person with respect to this Sublease and each
agrees to indemnify and hold the other harmless from any claim
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asserted against the other by any broker, agent, finder, or other such person
not identified above as Sublessor's Broker or Sublessee's Broker. The Commission
to the Brokers is pursuant to separate agreement.
ARTICLE 15
NOTICES AND PAYMENTS
15.1 Certified Mail. Any notice, demand, request, consent, approval,
submittal or communication that either party desires or is required to give to
the other party or any other person shall be in writing and either served
personally or sent by prepaid, first-class certified mail or commercial
overnight delivery service. Such Notice shall be effective on the date of actual
receipt (in the case of personal service or commercial overnight delivery
service) or two days after deposit in the United States mail, to the following
addresses:
Sublessor at: Mark Ravesloot
Executive Vice President
CB Richard Ellis
200 Park Avenue
New York, NY 10166
With a copy to: Hopkins & Carley
70 S First Street
San Jose, CA 951139
Attention: Julie A. Frambach, Esq.
To the Sublessee: At the Subleased Premises, whether or not
Sublessee has abandoned or vacated the
Subleased Premises or notified the Sublessor
of any other address. Attention: Legal
Department
with a copy to: N/A
15.2 When this Sublease requires service of a notice, that notice shall
replace rather than supplement any equivalent or similar statutory notice,
including any notices required by Code of Civil Procedure Section 1161 or any
similar or successor statute. When a statute requires service of a notice in a
particular manner, service of that notice (or a similar notice required by this
Sublease) shall replace and satisfy the statutory service-of-notice procedures,
including those required by Code of Civil Procedure Section 1162 or any similar
or successor statute
ARTICLE 16
ATTORNEYS' FEES AND COSTS
16.1 Sublessor Made Party to Litigation. If Sublessor becomes a party to
any litigation brought by someone other than Sublessee and concerning this
Sublease, the Subleased Premises, or Sublessee's use and occupancy of the
Subleased Premises to the extent, based upon any real
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alleged act or omission of Sublessee or its authorized representatives,
Sublessee shall be liable to Sublessor for reasonable attorneys' fees and court
costs incurred by Sublessor in the litigation.
16.2 Certain Litigation Between the Parties. In the event any action or
proceeding at law or in equity or any arbitration proceeding be instituted by
either party, for an alleged breach of any obligation of Sublessee under this
Sublease, to recover rent, to terminate the tenancy of Sublessee at the
Subleased Premises, or to enforce, protect, or establish any right or remedy of
a party to this Sublease Agreement, the prevailing party (by judgment or
settlement) in such action or proceeding shall be entitled to recover as part of
such action or proceeding such reasonable attorneys' fees, expert witness fees,
and court costs as may be fixed by the court or jury, but this provision shall
not apply to any cross-complaint filed by anyone other than Sublessor in such
action or proceeding.
16.3 Sublessor's Costs. In any case where Sublessee requests permission
from Sublessor to assign, sublet, make alterations, or receive any other consent
or obtain any waiver from or modification to the terms of this Sublease,
Sublessee shall pay to Sublessor a reasonable administrative charge and
Sublessor's reasonable attorney's fees incurred by Sublessor in reviewing such
request.
ARTICLE 17
LETTER OF CREDIT
Letter of Credit. In lieu of the cash Security Deposit set forth in
Section 4.1 above, Sublessee may provide to Sublessor an unconditional,
irrevocable Letter of Credit ("Letter of Credit") in the amount of Two Hundred
Fourteen Thousand Six Hundred Fifty-Seven and 35/100 Dollars ($214,657.35) in
favor of Sublessor and issued by a bank reasonably acceptable to Sublessor
("Issuer"). The Letter of Credit shall (1) be fully transferable by Sublessor
without payment of transfer fees, (2) permit multiple drawings, and (3) provide
that draws, including partial draws, at Sublessor's election, will be honored
upon the delivery to the Issuer a certificate signed by Sublessor, or its
authorized agent, that Sublessor is entitled to make the requested draw pursuant
to the terms of the Sublease. The Letter of Credit is to be issued pursuant to
ISP98 rather than UCP 500. If Sublessee fails to pay Rent or any other sums as
and when due hereunder, or otherwise defaults with respect to any provision of
this Sublease, Sublessor may (but shall not be obligated to) use, apply or
retain all or any portion of the Letter of Credit for payment of any sum for
which Sublessee is obligated or which will compensate Sublessor for any loss or
damage which Sublessor may suffer thereby. Any draw or partial draw of the
Letter of Credit shall not constitute a waiver by Sublessor of its right to
enforce its other remedies hereunder, at law or in equity. If any portion of the
Letter of Credit is drawn upon, Sublessee shall, within ten (10) days after
delivery of written demand from Sublessor, restore said Letter of Credit to its
original amount. The Letter of Credit shall be in effect for the entire term of
this Sublease plus sixty (60) days beyond the expiration of the Sublease term.
The Letter of Credit will automatically renew each year during the Sublease term
unless the beneficiary under the Letter of Credit is given at least thirty (30)
days prior notice of a non-renewal by the issuing bank, and Sublessor shall be
able to draw on the Letter of Credit in the event of such notice. The parties
agree that the provisions of Civil Code Sections 1950.7 and 1951.7 do not apply
to the Letter of Credit or any proceeds from the Letter of Credit.
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ARTICLE 18
EXHIBITS
Exhibits and Attachments. All exhibits and attachments to this Sublease
are a part hereof.
IN WITNESS WHEREOF, Sublessor and Sublessee have executed and delivered
this Sublease on the date first set forth above.
SUBLESSOR SUBLESSEE
E*TRADE Consumer Finance Corp., Commonwealth Energy Corporation,
a Delaware corporation a California corporation
- ---------------------------- --------------------------------
By: /s/ [ILLEGIBLE] By: /s/ IAN B. CARTER
------------------------- ----------------------------
Its: C.T.O./C.A.O. Its: CEO
------------------------
- ---------------------------- --------------------------------
By: /s/ [ILLEGIBLE] By: /s/ JOHN A. BARTHROP
------------------------- -----------------------------
Its: C.O.O. Its: Secretary
------------------------
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EXHIBIT A
SUBLEASED PREMISES
[FLOOR PLAN]
600 ANTON BOULEVARD, COSTA MESA, CA: 20TH FLOOR
[FLOOR PLAN]
600 ANTON BOULEVARD, COSTA MESA, CA: 21ST FLOOR
EXHIBIT B
MASTER LEASE
EXHIBIT C
FURNITURE
EXHIBIT D
BILL OF SALE
BILL OF SALE
By this Bill of Sale with the effective date of __________________
(the"Effective Date") and for the consideration of One Dollars ($1.00) hereby
acknowledged as received, E*TRADE Financial Corp., a Delaware corporation
("SELLER") does hereby unconditionally convey, transfer and deliver to and
Commonwealth Energy Corporation, a _________________________ ("BUYER") all
right, title and interest to that certain personal property set forth in Exhibit
A attached hereto, and without warranty except as to title, and "as is" and
"where is" in all respects.
This Bill of Sale shall in all respects be governed by, and construed in
accordance with the laws of the State of California, including all matters of
construction, validity and performance.
IN WITNESS WHEREOF, this Bill of Sale is executed as of the Effective Date.
SELLER
E*TRADE Financial Corp., a
Delaware corporation
By: __________________________________
Its: __________________________________
EXHIBIT A
EXHIBIT E
ENTRY AND INDEMNITY AGREEMENT
This Entry and Indemnity Agreement (the "Agreement") is entered into as of
May ____2004 (the "Effective Date") between E*TRADE CONSUMER FINANCE CORP. a
Delaware corporation fka GANIS CREDIT CORPORATION ("Licensor"), and
Commonwealth Energy Corporation, a California corporation ("Licensee").
A. Deutsche Financial Services Corporation, a Nevada corporation, as
"Lessee" entered that certain Lease Agreement dated on May 15, 1999, with 600
Anton Boulevard Associates, a California general partnership ("Master Lessor")
as amended by that certain First Amendment to lease made and entered into the
26th day of February, 2001 (the "First Amendment") and assigned to Licensor's
predecessor in interest Ganis Credit Corporation, a California corporation (the
"Assignee"). The Original Lease, the First Amendment and the Assignment are
collectively referred to herein as the "Master Lease".
B. Licensor and Licensee have executed that certain Sublease Agreement
dated May__, 2004 ("Sublease Agreement") with respect to the Subleased Premises
(as defined in the Sublease Agreement) consisting of approximately 38,677 square
feet of space consisting of the entire 20th and 21st floors of the building
known as Plaza Tower, located at 600 Anton Boulevard, Costa Mesa, California.
C. The Master Lease requires that the Master Lessor consent to the
Sublease Agreement.
D. Prior to receipt of Master Lessor's consent to the Sublease Agreement,
Licensee desires to enter upon the Subleased Premises for the purpose of
installing Licensee's furniture, fixtures and communication equipment
E. Licensor is willing to allow Licensee a limited license on the Sublease
Premises, but only in accordance with the terms of this Agreement.
F. Terms not defined herein shall have the meanings set forth in the
Sublease Agreement.
In this factual context, the parties agree as follows:
1. Limited License. Licensor grants Licensee a limited and revocable
license to enter upon the Subleased Premises solely for the limited the purposes
of installing Licensee's furniture, fixtures and communication equipment (the
"Permitted Activities"). All activities at the Subleased Premises shall be at
Licensee's sole cost and expense and at Licensee's sole risk. The license term
shall continue until the Commencement Date of the Sublease Agreement, but in no
event shall the license extend beyond August 1, 2004 (the "License Period"). The
approval by Licensor of any Permitted Activity shall not be deemed in any way to
obligate Licensor in the event the Master Lessor does not consent to the
Sublease or the Permitted Activities.
2. Conduct of Activities. Licensee shall not conduct any activities other
than the Permitted Activities at the Subleased Premises and the Permitted
Activities shall be conducted in full compliance with each law, zoning
restriction, ordinance, rule, regulation or requirement of any governmental or
quasi-governmental agency with jurisdiction over the Subleased Premises.
3. Indemnification. Licensee shall not permit any mechanic's or other
liens to be filed against the Subleased Premises, the Premises or the Building
as a result of its or its representatives' actions and Licensee at its sole cost
shall cause any liens so filed to be removed within five (5) days after notice
of filing, by bond or otherwise. Licensee at its sole cost shall indemnify,
protect, defend (with counsel reasonably acceptable to Licensor and Master
Lessor), release, waive and hold harmless Licensor and Master Lessor, and their
trustees, directors officers, beneficiaries, employees and agents, from and
against any claims, liabilities and expenses, including without limitation,
reasonable attorneys' fees and costs of defense and costs and expenses of all
experts and consultants, arising directly or indirectly, in whole or in part,
out of any act or omission in connection with the Subleased Premises by or on
behalf of Licensee or its employees, invitees, agents or contractors, or in
connection with or resulting from Licensee's entry on the Subleased Premises, or
in connection with Licensee's failure to restore the Subleased Premises if
required to do so pursuant to Section 10 below. This indemnity shall survive the
termination or expiration of this Agreement.
4. Insurance. Prior to any entry onto the Subleased Premises, Licensee
shall obtain and provide satisfactory evidence of coverage of the insurance
required under the Master Lease. Such insurance shall name Licensor and Master
Lessor as an additional insureds. Licensee shall maintain this policy in effect
so long as this Agreement is outstanding.
5. Attorneys' Fees. If any legal action or other proceeding is commenced
which is related to this Agreement, the losing party shall pay the prevailing
party's actual attorneys' fees and expenses incurred in the preparation for,
conduct of or appeal or enforcement of judgment from the proceeding. The phrase
"prevailing party" shall mean the party who is determined in the proceeding to
have prevailed or who prevails by dismissal, default or otherwise.
6. Waiver or Amendment. No amendment of or waiver of any obligation under
this Agreement will be enforceable unless set forth in a writing signed by the
party against which enforcement is sought.
7. Notices. All notices, consents, requests, demands or other
communications to or upon the respective parties shall be in writing and shall
be effective for all purposes upon receipt on any business day before 5:00 PM
local time and on the next business day if received after 5:00 PM or on other
than a business day, including without limitation, in the case of(i) personal
delivery, (ii) delivery by messenger, express or air courier or similar courier,
(iii) delivery by United States first class certified or registered mail,
postage prepaid and (iv) transmittal by telecopier or facsimile, addressed as
follows:
To Licensor: Mark Ravesloot
Executive Vice President
CB Richard Ellis
200 Park Avenue
New York, NY 10166
With a copy to: Hopkins & Carley
70 S First Street
San Jose, CA 951139
Attention: Julie A. Frambach, Esq.
To Licensee:
In this section "business days" means days other than Saturdays, Sundays, and
federal and state legal holidays. Either party may change its address by written
notice to the other in the manner set forth above. Receipt of communications by
United States first class or registered mail will be sufficiently evidenced by
return receipt. In the case of illegible or otherwise unreadable facsimile
transmissions, the receiving party shall promptly notify the transmitting party
of any transmission problem and the transmitting party shall promptly resend any
affected pages.
8. Successors and Assigns. This Agreement is binding upon, and inures to
the benefit of, the parties and their respective successors and assigns.
9. Counterparts. This agreement may be executed in multiple counterparts,
each of which shall be deemed an original, and counterpart signature pages may
be assembled to form a single original document. For this purpose, facsimile
signature pages shall be considered equivalent to ink originals.
10. Restoration. If Master Lessor does not consent to the Sublease
Agreement on or before __________, within ten (10) business days after such
date. Licensee promptly shall restore the Subleased Premises to its condition as
of the Effective Date hereof including, without limitation the removal of
Licensee's furniture and equipment (excluding any of Licensor's equipment) from
the Subleased Premises and vacate the Subleased Premises. Licensee may remain in
the Subleased Premises for the purpose of complying with the provisions of this
Section until the last day of the ten business (10) day period set forth in this
paragraph 10.
11. Due Authority. If Licensee signs as a corporation, each of the persons
executing this Agreement on behalf of Licensee represent and warrant that they
have the authority to bind Licensee, Licensee has been and is qualified to do
business in the State where the Subleased Premises is located, that the
corporation has full right and authority to enter into this Agreement, and that
all persons signing on behalf of the corporation were authorized to do so by
appropriate corporate actions. If Licensee signs as a partnership, trust or
other legal entity, each of the persons executing this Agreement on behalf of
Licensee represent and warrant that they have the authority to bind Licensee,
Licensee has complied with all applicable laws, rules and
governmental regulations relative to its right to do business in the State where
the Subleased Premises is located and that such entity on behalf of the Licensee
was authorized to do so by any and all appropriate partnership, trust or other
actions. Licensee agrees to furnish promptly upon request a corporate
resolution, proof of due authorization by partners, or other appropriate
documentation evidencing the authorization of Licensee to enter into this
Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
Effective Date.
LICENSOR: LICENSEE:
E*TRADE CONSUMER FINANCE CORP., COMMONWEALTH ENERGY
CORPORATION fka GANIS CREDIT CORPORATION
CORPORATION a California corporation
By: _________________________ By: ___________________________
Its: ________________________ Its: __________________________
BY: ___________________________
Its: __________________________