SUBLEASE
THIS SUBLEASE is made and entered into as of this 22nd day of July,
1999, by and between AIR LIQUIDE AMERICA CORPORATION, a Delaware corporation
("Sublessor"), and DELPHI INFORMATION SYSTEMS, INC., a Delaware corporation
("Sublessee").
RECITALS:
This Sublease is made and entered into on the basis of the following
facts, understandings and intentions of the parties:
A. These Recitals utilize certain terms defined in this Sublease which
the parties intend to incorporate into these Recitals in connection with
their use herein.
B. Master Landlord, as Landlord, and Sublessor, as Tenant, have
previously entered into the Lease, pursuant to the terms and conditions of
which Sublessor has leased the Leased Premises from Master Landlord.
C. Sublessor desires to sublease the Sublease Premises to Sublessee,
and Sublessee desires to sublease the Sublease Premises from Sublessor. In
order to effectuate such sublease transaction, the parties desire to enter
into this Sublease.
NOW, THEREFORE, IN CONSIDERATION of the foregoing Recitals, and
the mutual covenants and promises of the parties contained herein, the
parties agree as follows:
1. DEFINED TERMS.
1.1. DEFINITIONS. The following terms shall have the meaning set
forth below for each such term:
BASE RENT: $13,000.00 per month.
BROKERS: Sublessor's Broker and Sublessee's Broker.
COMMENCEMENT DATE: August 1, 1999.
EXPIRATION DATE: January 31, 2001.
LEASE: That certain Lease, dated September 16, 1985, between Master
Landlord, as Landlord, and Sublessor, as Tenant, pursuant to the terms
and conditions of which Master Landlord leased to Sublessor the Leased
Premises, as amended by First Addendum to Lease, dated September 16,
1985; Second
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Addendum to Lease, dated September 16, 1985; Third Addendum to Lease,
dated October 15, 1985; Fourth Addendum to Lease, dated February 12,
1987; Fifth Addendum to Lease, dated March 6, 1987; Sixth Addendum to
Lease, dated October 6, 1988; Seventh Addendum to Lease, dated November
30, 1988; Eighth Addendum to Lease, dated December 20, 1989; Ninth
Addendum, dated May 21, 1991; Tenth Addendum to Lease, dated
September 10, 1991; Eleventh Amendment to Office Lease, dated June 20,
1995; and Twelfth Amendment to Office Lease, dated September 10, 1996
together with Memorandum of Lease, dated September 16, 1985, and
recorded November 1, 1985, in Book 12596, at Page 119, of the Official
Records of the County of Contra Costa, State of California. A true and
correct copy of the Lease is attached hereto as Exhibit A.
MASTER LANDLORD: C-C California Plaza Partnership, a California general
partnership, as successor-in-interest to California Plaza Associates, a
California general partnership, the original Landlord under the Lease.
PERMITTED USE: General office uses.
SUBLEASE PREMISES: A portion of the 3rd floor of the Leased Premises,
containing approximately 11,540 square feet of Rentable Area, as shown
by crosshatch on the Floor Plan attached hereto as Exhibit B.
SUBLEASE TERM: The period commencing on the Commencement Date and
ending on the Expiration Date.
SUBLESSEE'S BROKER: Scott Ellis of Grubb & Ellis Company.
SUBLESSOR'S BROKER: Jeffrey Weil of Grubb & Ellis Company.
1.2. LEASE DEFINED TERMS. Except as otherwise specified in this
Sublease, all terms defined in the Lease shall have the same meaning when
used in this Sublease.
1.3. OTHER DEFINED TERMS. Certain other terms shall have the meaning
set forth for each such term elsewhere in this Sublease.
2. DEMISE OF SUBLEASE PREMISES. Sublessor hereby subleases to
Sublessee, and Sublessee hereby subleases from Sublessor, the Sublease
Premises on the terms and conditions set forth in this Sublease.
3. TERM. The Sublease Term shall commence on the Commencement Date
and shall end on the Expiration Date, unless this Sublease is sooner
terminated pursuant to its terms, or the Lease is sooner terminated pursuant
to its terms, in which
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event this Sublease shall also automatically terminate. Sublessee
acknowledges that Sublessee has no option to extend the Sublease Term.
4. DELIVERY OF PREMISES. Sublessor shall deliver the Sublease Premises
to Sublessee in as-is condition. Sublessor has no obligation to make any
improvements or alterations to the Sublease Premises. Occupancy of any
portion of the Sublease Premises by Sublessee shall constitute acceptance of
the Sublease Premises, unless any portion of such Sublease Premises is
considered "uninhabitable" under applicable California laws, rules ordinances
or regulations. No delay from any cause whatsoever in delivery of the
Sublease Premises to Sublessee hereunder shall extend the Sublease Term
beyond the Expiration Date, and Sublessor shall have no liability whatsoever
on account of any such delay in delivery of the Sublease Premises, but if
delivery of the Sublease Premises is delayed for more than fifteen (15)) days
beyond the date of execution of this Sublease, except to the extent any
such delay is caused by a Sublessee delay, Sublessee shall have the right-to
terminate this Sublease, and the obligations of the parties hereunder, by
delivering to Sublessor written notice of such termination within ten (10)
days after the expiration of such 15-day period. Termination of this Sublease
in accordance with the foregoing shall be Sublessee's sole remedy on account
of any failure by Sublessor to deliver the Sublease Premises hereunder. In
the event Sublessee fails to deliver notice of termination hereunder within
such 10-day period, then this Sublease shall continue in full force and
effect.Notwithstanding anything contained herein, any delay in occupancy not
caused by Sublessee shall adjust the commencement date of the Sublease
accordingly and Sublessee shall have no rights or liability hereunder before
such Commencement Date.
5. BASE RENT AND ADDITIONAL RENT
5.1. BASE RENT. Commencing on the first day of the Sublease Term, and
on the first day of each month thereafter during the Sublease Term, Sublessee
shall pay to Sublessor in advance Base Rent for the Sublease Premises. If the
first or last day of the Sublease Term is other than the first day of a
calendar month, then the first and/or last months' payment of Base Rent shall
be prorated based on the number of days elapsed in each such month.
5.2. ADDITIONAL RENT. The combined Base Rent and Basic Operating Costs
for this sublease shall be $13,000.00 per month total for the entire sublease
term. Sublessee shall reimburse Sublessor for its parking expenses, pursuant
to Section 9.2, in addition to the $13,000.00 per month rental payment. There
shall be no Basic Operating Costs passthrough to the Sublessee.
5.3. ADDITIONAL SERVICES. If Sublessee desires any services in amounts
exceeding the basic services to be provided by Master Landlord pursuant to
Section 4.3(b) of the Lease, and in the event that Master Landlord elects to
provide such
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additional services, then Sublessee shall reimburse Master Landlord for
Master Landlord's costs of providing such additional services, including all
such costs imposed by Master Landlord on Sublessor. Upon request by Sublessee
to Sublessor, Sublessor shall use reasonable good faith efforts in assisting
Sublessee in obtaining from Master Landlord the provision of such additional
services, but without warranty, representation or liability for any failure
by Sublessor to obtain from Master Landlord the provision of such additional
services.
5.4. TAXES ON PERSONAL PROPERTY AND IMPROVEMENTS; LIENS. In addition to
Sublessee's obligation to make payment of additional rent pursuant to
Paragraph 5.2 and 5.5 herein, Sublessee shall be responsible for, and shall
pay prior to delinquency, taxes or governmental service fees, capital levies
or other charges imposed upon, levied with respect to, or assessed against,
Sublessee's personal property, additions and improvements made to the
Sublease Premises by Sublessee and reimbursement to Sublessor for any taxes
on the furniture inventory as shown on Exhibit C. To the extent that any such
taxes are not separately assessed or billed to Sublessee, Sublessee shall pay
to Sublessor or Master Landlord, as the case may be, the amount of such taxes
assessed or billed to Sublessor or Master Landlord within thirty (30) days
after delivery of a copy of such assessment or bill, or ten (10) days prior
to the last day such taxes may be paid without penalty, whichever is later.
Sublessee shall at all times keep the Project and every part thereof free
from any liens of any sort (including mechanics' liens) related in any way to
the activities, responsibilities or liabilities of Sublessee.
5.5. PAYMENT OF BASE RENT AND OTHER CHARGES. All amounts and charges
payable by Sublessee under this Sublease in addition to Base Rent shall
constitute additional rent payable by Sublessee hereunder. Sublessee shall
make payment of Base Rent and all additional rent without offset or deduction.
Unless and until otherwise directed by Sublessor in writing, Sublessee shall
make all payments due to Sublessor under this Sublease to Sublessor at the
address specified for notices in Paragraph 17 below.
5.6. CHARGES ON DELINQUENT AMOUNTS. Sublessee acknowledges that if
Sublessee fails to pay Sublessor any amount due hereunder by the due date,
that Sublessor will incur costs and expenses in processing such delinquent
payments, particularly with respect to its obligations to make payments of
Rental to Master Landlord under the Lease, a portion of which will be
comprised of amounts payable by Sublessee hereunder. Accordingly, based on
the parties' assessment of the reasonable estimate of such costs and expenses
which Sublessor would incur based on the facts and circumstances existing as
of the date of this Sublease, if Sublessee fails to pay to Sublessor any
amount due under this Sublease within five (5) days after written notice from
Sublessor to Sublessee that such payment is due, Sublessee shall pay
Sublessor upon demand a late charge equal to five percent (5%) of the
delinquent amount. In addition, Sublessee shall pay to Sublessor per annum
interest
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on all amounts due at the Default Rate or at the maximum rate allowed by law,
whichever is less, from the due date to and including the date of payment.
Sublessor's acceptance of any late charge or interest hereunder shall not
waive Sublessee's default in failing to pay the delinquent amount.
6. USE OF SUBLEASE PREMISES. Sublessee shall use the Sublease
Premises solely for the Permitted Use and for no other use or purpose
whatsoever.
7. ASSIGNMENT AND SUBLETTING.
7.1. PERMITTED TRANSFERS. Except as hereinafter provided, Sublessee
shall not assign this Sublease or sublease the Sublease Premises, or any
portion thereof, without Sublessor's prior written consent, which consent
shall not be unreasonably withheld or delayed, and shall in any event be
given or withheld within twenty (20) days after Sublessor's receipt from
Sublessee of a request for such consent, together with such documents and
other materials as Sublessor may reasonably require in order to render a
decision on consent hereunder. Notwithstanding the foregoing, Sublessee may,
without Sublessor's prior consent, but with notice to Sublessor prior to
consummation, assign this Sublease, or sublet all or any portion of
the Sublease Premises, to any person or entity controlled by, controlling, or
under common control with Sublessee (collectively, an "affiliate"). If
Sublessor declines to consent to any assignment or sublease hereunder,
Sublessor shall include with any notice of declination a statement in
reasonable detail of Sublessor's basis for such declination. No assignment or
subletting by Sublessee hereunder shall relieve Sublessee of any obligation
under this Sublease.
7.2. TERMS OF TRANSFERS. Each assignee shall, concurrently with any
assignment, assume all obligations of Sublessee under this Sublease. Each
sublease shall be made subject to this Sublease and all of the terms,
convenants and conditions contained herein; and the surrender of this
Sublease by Sublessee, or a mutual cancellation thereof, or the termination
of this Sublease in accordance with its terms, shall not work a merger and
shall, at the option of Sublessor, terminate all or any existing subleases or
operate as an assignment to Sublessor of any or all such subleases. No
sublessee shall have the right further to sublet, except to an affiliate of
Sublessee. Any assignment by a sublessee of its sublease shall be subject to
Sublessor's prior consent in the same manner as a sublease by Sublessee. No
sublease, once consented to by Sublessor, shall be modified without
Sublessor's prior consent. No assignment or sublease shall be binding on
Sublessor unless the transferee delivers to Sublessor a fully executed
counterpart of the assignment or sublease which contains the assumption by
the assignee, or recognition by the Sublessee, of the provisions of this
Paragraph 7, in form and substance satisfactory to Sublessor, but the failure
or refusal of a transferee to deliver such instrument shall not release or
discharge such transferee from the provisions and obligations of this
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Paragraph 7, but such failure shall constitute a default by Sublessee under
this Sublease.
7.3. EFFECT OF TRANSFER. The acceptance of rent by Sublessor from any
person other than Sublessee shall not be deemed a waiver by Sublessor of any
provision of this Paragraph 7. On default by any assignee of Sublessee in
the performance of any of the terms, covenants or conditions of this
Sublease, Sublessor may proceed directly against Sublessee without the
necessity of exhausting remedies against such assignee. No consent by
Sublessor to any further assignments or sublettings of this Sublease, or any
modification, amendment or termination of this Sublease, or extension, waiver
or modification of payment or any other obligations under this Sublease, or
any other action by Sublessor with respect to any assignee or Sublessee, or
the insolvency, or bankruptcy or default of any such-assignee or sublessee,
shall affect the continuing liability of Sublessee for its obligations under
this Sublease and Sublessee waives any defense arising out of or based
thereon, including any suretyship defense of exoneration. Sublessor shall
have no obligation to notify Sublessee or obtain Sublessee's consent with
respect to any of the foregoing matters.
7.4. MASTER LANDLORD RIGHTS; NO ENCUMBRANCE. Sublessee's rights with
respect to assignment and subletting hereunder, and Sublessor's obligations
with respect thereto, shall in all events be subject to any and all rights of
the Master Landlord with respect to assignment and subletting under Section
5.8 of the Lease. Notwithstanding anything to the contrary contained in this
Paragraph 7, Sublessee shall have no right to encumber, pledge, hypothecate
or otherwise transfer this Sublease, or any of Sublessee's interest or rights
hereunder, as security for any obligation or liability of Sublessee
8. GRAPHICS AND BUILDING SIGNAGE. Sublessor shall use reasonable good
faith efforts to cause Master Landlord to provide to Sublessee appropriate
identification of Sublessee's name and suite numerals at the main entrance
door to the Sublease Premises pursuant to the provisions of Section 4.5 of
the Lease. In addition, Sublessor shall use reasonable good faith efforts to
cause Master Landlord to list Sublessee and its officers and employees on any
Building directory to the extent so provided by Master Landlord. Subject to
Sublessee's compliance with all applicable laws, ordinances, rules and
regulations, at Sublessee's sole cost and expense, and subject to obtaining
the prior written consent of Master Landlord (as to which Sublessor shall use
reasonable good faith efforts in cooperation with Sublessee to obtain),
Sublessee may place a sign or signs on or within the Project identifying
Sublessee as an occupant of the Project. The cost of installation,
maintenance and operation of any such Project signs shall be borne by
Sublessee, unless otherwise agreed by Master Landlord.
9. PARKING.
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9.1. ASSIGNMENT OF PARKING RIGHTS. Subject to and in accordance with
the provisions of this Paragraph 9, Sublessor hereby assigns to Sublessee as
an appurtenance to the Sublease Premises the right to utilize 34 "valet" as
available (or unreserved) parking stalls within the Project, pursuant to and
in accordance with the terms and conditions of Section 4.6 of the Lease,
except as modified by this Paragraph 9.
9.2. PAYMENT OF PARKING CHARGES. Sublessor shall pay all amounts due
Master Landlord under Section 4.6 of the Lease on account of Sublessee's use
of the parking stalls hereunder, except that Sublessee shall reimburse
Sublessor for any increases in such parking charges effected by Master
Landlord pursuant to Section 4.6 of the Lease over the parking charges
prevailing as of the Commencement Date. Immediately upon receipt from Master
Landlord of statements for parking charges during the Sublease Term after the
Commencement Date, Sublessor shall provide such statements to Sublessee,
together with Sublessor's calculation of any amounts due on account of
increases in parking charges, and Sublessee shall reimburse Sublessor for the
amount due within thirty (30) days after receipt of Sublessor's statement.
9.3. ADDITIONAL PARKING. In addition to the parking rights assigned to
Sublessee hereunder, Sublessor shall use reasonable good faith efforts to
assist Sublessee in obtaining additional parking rights from Master Landlord
to the extent required by Sublessee's business operations in the Sublease
Premises.
10. INTENTIONALLY OMITTED.
11. ALTERATIONS. Sublessee shall not make any alterations,
improvements or additions to the Sublease Premises, except in any applicable
provisions of the Lease, and then only with the prior written consent of both
Master Landlord and Sublessor. Notwithstanding the above, Sublessee shall
have the authority to make alterations under $5,000 that are decorating-type
alterations without the prior written consent of Sublessor, provided
Sublessee has obtained any consents required of the Master Landlord.
12. USE OF HAZARDOUS MATERIALS. As used herein, "environmental laws"
means all present and future statutes, ordinances, orders, rules and
regulations of all federal, state or local governmental agencies relating to
the use, generation, manufacture, installation, release, discharge, storage
or disposal of hazardous materials; and "hazardous materials" means
petroleum, asbestos, polychlorinated biphenyls, radioactive materials, radon
gas or any chemical, material or substance now or hereafter defined as or
included in the definition of "hazardous substances", "hazardous wastes",
"hazardous materials", "extremely hazardous waste", "restricted hazardous
waste" or "toxic substances", or words of similar import, under any
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environmental laws. Sublessee shall not use, or allow use of, hazardous
materials in the Sublease Premises or transport the same through the Project,
except in accordance with the rules and regulations of the Project. In the
event of a release of any hazardous materials of which Sublessee has
knowledge or receives notice, Sublessee shall immediately notify Sublessor and
Master Landlord and, if such release was caused by the act or neglect of
Sublessee, any person or entity holding under Sublessee, or any officer,
employee, agent, representative or contractor of Sublessee, then Sublessee
shall promptly take such remedial actions as Sublessor and/or Master Landlord
may deem necessary or appropriate to clean up the same. Sublessee shall use,
handle, store and transport any hazardous materials hereunder in accordance
with the applicable requirements of environmental laws, and shall notify
Sublessor and Master Landlord of any violation of environmental laws of which
it receives notice from any governmental agency having jurisdiction. As used
herein, Sublessee includes its employees, agents, contractors, invitees or
licensees.
Sublessor agrees to indemnify and save Sublessee harmless from all claims,
liability, loss or damage (not due to Sublessee) with respect to the Premises
for Sublessor's failure, and to the extent Sublessor receives indemnity from
Master Landlord, for Master Landlord's failure to comply with all federal,
state, local laws, rules, regulations or governmental reporting requirements
with respect to hazardous wastes and materials.
13. INTERRUPTION OR UNAVAILABILITY OF SERVICES. Notwithstanding any
failure to furnish or delay in furnishing any maintenance or services under
the Lease, regardless of the cause of such failure or delay, (i) Sublessor
shall not be in default hereunder or liable for any damages directly or
indirectly resulting from any such failure or delay, (ii) Base Rent and other
charges payable by Sublessee shall not be abated, (iii) no constructive or
other eviction shall be deemed to have occurred, and (iv) Sublessee shall not
be relieved from any of its obligations under this Sublease.
14. INCORPORATION OF LEASE TERMS.
14.1. INCORPORATION BY REFERENCE. The terms and conditions of this
Sublease shall include the following Sections of the Lease, which are
incorporated into this Sublease as if fully set forth herein, except that in
such incorporated Sections (i) each reference to "Lease" shall be deemed a
reference to "Sublease"; (ii) each reference to "Landlord" shall be deemed a
reference to "Sublessor"; (iii) each reference to "Tenant" shall be deemed a
reference to "Sublessee"; and (iv) each reference to "Leased Premises" shall
be deemed a reference to "Sublease Premises". The following Sections of
the Lease are hereby so incorporated into this Sublease: Section 5.5,
commencing with the phrase "Tenant shall reimburse Landlord..." in the third
sentence thereof; Section 5.7; Section 5.10, except that the reference to
"Landlord" in the antepenultimate line thereof shall be deemed to refer to
the Master
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Landlord, and Sublessor shall have no obligation therefor other than the
obligation to use reasonable good faith efforts to cause Master Landlord to
perform its obligations thereunder; Section 5.11; Section 5.12; Section 5.14,
except that references to the "Term Commencement Date" shall be deemed to
refer to the "Commencement Date", references to the "Term Expiration Date"
shall be deemed to refer to the "Expiration Date" and the period for
responding to Sublessor's request for a certificate under Section 5.14 as so
incorporated herein shall be twenty (20) days; Section 6.2; Section 6.3
except that Master Landlord shall also be named as an additional insured
under each such policy in accordance with the provisions of Section 6.3,
Master Landlord shall also have the right to inspect and/or copy Sublessee's
insurance policies required to be maintained under this Sublease, and no
policy required to be carried by Sublessee shall be cancelable or materially
altered except after thirty (30) days written notice to Sublessor, Master
Landlord and Master Landlord's lender; Section 6.5, except for clause (iii)
of Section 6.5(b) ; and Section 6.6.
14.2. RELATION BETWEEN SUBLEASE AND LEASE; SUBLESSOR'S OBLIGATIONS.
This Sublease is and at all times shall be subject and subordinate to the
Lease. Sublessee hereby expressly assumes and agrees to comply with all the
provisions of the Lease, to the extent applicable to Sublessee and/or the
Sublease Premises, and to perform all the obligations on the part of Tenant
to be performed under the terms of the Lease. Sublessee acknowledges that
Sublessor shall have no obligation to make any repairs to the Sublease
Premises or to take any other action in connection with the Sublease
Premises, and Sublessee assumes responsibility therefor; provided, however,
that Sublessor shall pay any sums which it is required to pay to Master
Landlord under the terms of the Lease and perform its obligations under the
Lease in accordance with its terms to the extent not to be performed by
Sublessee under this Sublease, all so long as Sublessee is not in default in
the performance of annoys its obligations under this Sublease, including
payment of Base Rent or any other amounts payable by Sublessee under this
Sublease.
14.3. ENFORCEMENT OF LEASE. Notwithstanding anything to the contrary
contained in this Sublease, and except to the extent caused by
the failure of Sublessor to perform its obligations under this
Sublease, Sublessee shall look solely to Master Landlord for the
performance of all obligations of Master Landlord under the
Lease, and Sublessor shall have no responsibility or liability on
account of any failure by Master Landlord to perform any of its
obligations under the Lease, including any failure to provide
basic services, or operate or maintain the Project in accordance
with the standards specified in the Lease. Subject to the foregoing
limitations, and except to the extent caused by the failure of
Sublessor to perform its obligations under this Sublease, upon
written request of Sublessee, Sublessor shall, at Sublessee's
sole cost and expense, take such actions as Sublessor deems
reasonable under the circumstances, acting in good faith, to
enforce Master Landlord's
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obligations under the Lease. In the event that Sublessee desires
to initiate any litigation or other proceedings against Master
Landlord on account of any failure by Master Landlord to perform
its obligations under the Lease, Sublessor shall cooperate
reasonably with Sublessee in connection therewith, including
permitting Sublessee to bring such proceeding in the name of
Sublessor, provided that Sublessee pays all costs and expenses
incurred by Sublessor in connection with the foregoing, and
Sublessee indemnifies, defends, protects and holds Sublessee, its
affiliates, officers, directors, employees, agents and
representatives, harmless from and against any and all liability,
losses, claims, causes of action, damages, costs and expense
(including reasonable attorneys' fees) arising out of or in
connection with any such proceeding or other actions taken by
Sublessee against Master Landlord, except that the foregoing
proviso and indemnity shall not apply to the extent that Master
Landlord's failure to perform its obligations under the Lease is
caused by the failure of Sublessor to perform its obligations
under this Sublease.
15. DEFAULT AND REMEDIES.
15.1 EVENTS OF DEFAULT. The occurrence of any of the following events
shall constitute default by Sublessee under this Sublease:
15.1.1. NONPAYMENT OF RENT. Failure to pay any Base Rent or other
amounts when due.
15.1.2. UNPERMITTED ASSIGNMENT. An assignment or sublease made in
contravention of any of the provisions of Paragraph 7 above.
15.1.3. ABANDONMENT. Abandonment of the Sublease Premises for a
continuous period in excess of five (5) business days. For purposes hereof,
"abandonment" means cessation by Sublessee of the conduct of its business in
the Sublease Premises or removal from the Sublease Premises of the personal
property, equipment and furnishings used by Sublessee in its business in the
Sublease Premises.
15.1.4. OTHER OBLIGATIONS. Failure to perform or fulfill any other
obligation, covenant, condition or agreement under this Sublease.
15.1.5. BANKRUPTCY AND INSOLVENCY. A general assignment by Sublessee
for the benefit of creditors, any action or proceeding commenced by Sublessee
under any insolvency or bankruptcy act or under any other statute or
regulation for protection from creditors, or any such action commenced
against Sublessee and not discharged within sixty (60) days after the date of
commencement;
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the employment or appointment of a receiver or trustee to take possession of
all or substantially all of Sublessee's assets or the Sublease Premises; the
attachment, execution or other judicial seizure of all or substantially all
of Sublessee's assets or the Sublease Premises, if such attachment or other
seizure remains undismissed or undischarged for a period of twenty (20) days
after the levy thereof; the admission by Sublessee in writing of its
inability to pay its debts as they become due; or the filing by Sublessee of
a petition seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any present or
future statute, law or regulation, the filing by Sublessee of an answer
admitting or failing timely to contest a material allegation of a petition
filed against Sublessee in any such proceeding or, if within sixty (60) days
after the commencement of any such proceeding against Sublessee, such
proceeding is not dismissed. For purposes of this Paragraph 15.1.5,
"Sublessee" means Sublessee and any partner of Sublessee, if Sublessee is a
partnership, or any person or entity comprising Sublessee, if Sublessee is
comprised of more than one person or entity, or any guarantor of Sublessee's
obligations, or any of them, under this Sublease.
15.2. NOTICE TO SUBLESSEE. Upon the occurrence of any default, Sublessor
shall give Sublessee notice thereof. If a time period is specified below for
cure of such default, then Sublessee may cure such default within such time
period. The time periods provided below are exclusive of any other time
periods provided by law with respect to cure of any such default and
Sublessee hereby waives any right under law now or hereinafter enacted to any
other time period.
15.2.1. NONPAYMENT OF RENT. For failure to pay Base Rent or other
charges, within five (5) days after Sublessor's notice, unless Sublessee has
failed more than two (2) times during the Sublease Term timely to pay any
Base Rent or other charge, in which event no cure period shall apply.
15.2.2. OTHER OBLIGATIONS. For failure to perform any obligation,
covenant, condition or agreement under this Sublease (other than nonpayment
of Rent, an assignment or subletting in violation of Paragraph 7 or
Sublessee's abandonment of the Sublease Premises) within ten (10) days after
Sublessor's notice or, if the failure is of a nature requiring more than 10
days to cure, then an additional twenty (20) days after the expiration of
such 10-day period, but only if Sublessee commences cure within such 10-day
period and thereafter diligently pursues such cure to completion within such
additional 20-day period. If Sublessee has failed to perform any such
obligation, covenant, condition or agreement more than two (2) times during
the Sublease Term and notice of such event of default has been given by
Sublessor in each instance, then no cure period shall apply.
15.2.3. NO CURE PERIOD. No cure period shall apply for any other event
of default specified in Paragraph 15.1.
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15.3. REMEDIES UPON OCCURRENCE OF DEFAULT. On the occurrence of a
default which Sublessee fails to cure after notice and expiration of the time
period for cure, if any, specified in Paragraph 15.2 above, Sublessor shall
have the right either (i) to terminate this Sublease and recover possession
of the Sublease Premises, or (ii) to continue this Sublease in effect and
enforce all Sublessor's rights and remedies under California Civil Code
Section 1951.4 (by which Sublessor may recover rent as it becomes due,
subject to Sublessee's right to assign pursuant to Paragraph 7). Sublessor
may store any property of Sublessee located in the Sublease Premises at
Sublessee's expense or otherwise dispose of such property in the manner
provided by law. If Sublessor does not terminate this Sublease, Sublessee
shall in addition to continuing to pay all Base Rent and other charges when
due, also pay Sublessor's costs of attempting to relet the Sublease Premises,
any repairs and alterations necessary to prepare the Sublease Premises for
such reletting, and brokerage commissions and attorneys' fees incurred in
connection therewith, less the rents, if any, actually received from such
reletting. Notwithstanding Sublessor's election to continue this Sublease in
effect, Sublessor may at any time thereafter terminate this Sublease pursuant
to this Paragraph 15.3.
15.4. DAMAGES UPON TERMINATION. If and when Sublessor terminates this
Sublease pursuant to Paragraph 15.3, Sublessor may exercise all its rights
and remedies available under California civil code Section 1951.2, including
the right to recover from Sublessee the worth at the time of award of the
amount by which the unpaid Base Rent and other charges for the balance of the
Term after the time of award exceeds the amount of such rent loss that the
Sublessee proves could have been reasonably avoided. As used herein and in
Civil Code Section 1951.2, "time of award" means either the date upon which
Sublessee pays to Sublessor the amount recoverable by Sublessor, or the date
of entry of any determination, order or judgment of any court or other
legally constituted body determining the amount recoverable, whichever occurs
first.
15.5. COMPUTATION OF CERTAIN RENT FOR PURPOSES OF DEFAULT. For purposes
of computing unpaid rent pursuant to Paragraph 15.4 above, increases in Basic
Operating Cost and real property taxes (the "Escalation Rent") for the
balance of the Sublease Term shall be determined by averaging the amount paid
by Sublessee as Escalation Rent for the calendar year prior to the year in
which the default occurred (or, if the prior year is the Sublease Base Year
or such default occurs during the Sublease Base Year, Escalation Rent shall
be based on Master Landlord's Estimated Basic Operating Cost for the Sublease
Base Year), increasing such average amount for each calendar year (or portion
thereof) remaining in the balance of the Sublease Term at a per annum
compounded rate equal to the mean average rate of increase for the preceding
five (5) calendar years in the Index.
15.6. DEFAULT OF SUBLESSOR. Except as otherwise provided herein,
Sublessor shall be in breach of its obligations under this Sublease if (i) in
the case of a breach
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which can be cured by payment of money, such breach continues for thirty (30)
days after notice without cure, or (ii) in the case of a breach which cannot
cured by payment of money, (A) such breach continues either for thirty (30)
days after notice, or (B) in the case of a breach which cannot be cured
within thirty (30) days, such breach continues for thirty (30) days after
notice and is not thereafter cured in fact as soon as reasonably feasible
under the circumstances. Sublessor shall be liable to Sublessee for all
amounts necessary to compensate Sublessee for all the detriment proximately
caused by Sublessor's failure to cure within the foregoing time periods any
breach of its obligations under this Sublease or which in the ordinary course
of things would be likely to result therefrom. Upon a breach by Sublessor
under this Sublease which is not cured within the foregoing cure periods,
Sublessee shall have recourse to all available legal and equitable remedies.
15.7. RIGHT TO CURE DEFAULTS. If either party fails to perform any
obligation under this Sublease, and such party fails to cure such default
within the applicable cure period, if any, specified in this Paragraph 15,
then the other party may, without waiving or releasing the defaulting party
from any of its obligations or such default, make any such payment or perform
such other obligation on behalf of the defaulting party. All payments so made
by a party, and all costs and expenses incurred by a party to perform such
obligations, shall be due and payable by the defaulting party as additional
rent immediately upon receipt of demand therefor from the other party.
15.8. REMEDIES CUMULATIVE. The rights and remedies of each party under
this Sublease are cumulative and in addition to, and not in lieu of, any
other rights and remedies available to each party at law or in equity. A
party's pursuit of any such right or remedy shall not constitute a waiver or
election of remedies with respect to any other right or remedy.
16. WAIVER. Failure of a party to declare default by the other party
upon occurrence thereof, or delay in taking any action in connection
therewith, shall not waive such default, but the non-defaulting party shall
have the right to declare such default at any time after its occurrence. To
be effective, a waiver of any provision of this Sublease, or any default,
shall be in writing and signed by the waiving party. Any waiver hereunder
shall not be deemed a waiver of subsequent performance of any such provision
or subsequent defaults. The subsequent acceptance of Base Rent or other
charges hereunder, or endorsement of any check by Sublessor, shall not be
deemed to constitute an accord and satisfaction or a waiver of any preceding
default by Sublessee, except as to the particular Base Rent or other charges
so accepted, regardless of Sublessor's knowledge of the preceding default at
the time of acceptance of the Base Rent or other charge. No course of conduct
between Sublessor and Sublessee, and no acceptance of the keys to or
possession of the Sublease Premises by Sublessor before the Expiration Date,
shall constitute a waiver of any provision of this Sublease or of any
default, or operate as a surrender of this Sublease.
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17. NOTICES. The address of each party and Master Landlord for the
purpose of all notices permitted or required by this Sublease is as follows:
To Master Landlord:
2121 North California Boulevard
Suite 230
Walnut Creek, California 94596
Attention: Building Management
To Sublessor:
2700 Post Oak Boulevard
21st Floor
Houston, Texas 77056
Attention: John N. Baird,
Vice President
To Sublessee:
2121 North California Boulevard, 3rd Floor
Walnut Creek, CA 94596
Attention: Mr. Dick Baum,
Chief Financial Officer
The notice address of any party set forth above may be changed by written
notice given not less than five (5) days prior to the date such change is to
be effected. All notices hereunder shall be in writing, shall be properly
addressed and shall be sent by personal delivery, by United States Mail
(certified or Express Mail, return receipt requested and postage prepaid), or
by overnight courier delivery service. All such notices shall be considered
delivered: (i) if personally delivered, on the date of delivery; (ii) if sent
by United States Mail in the manner prescribed above, on the date shown on
the return receipt for acceptance or rejection; or (iii) if sent by overnight
courier delivery service, on the date of delivery as shown by the written
delivery record of such service.
18. NO JOINT VENTURE. This Sublease does not create any partnership or
joint venture or similar relationship between Sublessor and Sublessee.
19. SUCCESSORS AND ASSIGNS. Subject to the provisions of Paragraph 7
regarding assignment, all of the provisions, terms, covenants and conditions
contained in this Sublease shall bind, and inure to the benefit of, the
parties and their respective successors and assigns.
20. CONSTRUCTION AND INTERPRETATION. References to a party or parties
refers to Sublessor or Sublessee, or both, as the context may require. The
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captions preceding the Paragraphs of this Sublease are inserted solely for
convenience of reference and shall have no effect upon, and shall be
disregarded in connection with, the construction and interpretation of this
Sublease. Use in this Sublease of the words "including", "such as", or words
of similar import when following a general matter, shall not be construed to
limit such matter to the enumerated items or matters whether or not language
of non limitation (such as "without limitation") is used with reference
thereto. All provisions of this Sublease have been negotiated at arm's length
between the parties and after advice by counsel and other representatives
chosen by each party and the parties are fully informed with respect thereto.
Therefore, this Sublease shall not be construed for or against either party
by reason of the authorship or alleged authorship of any provision hereof, or
by reason of the status of the parties as Sublessor or Sublessee, and the
provisions of this Sublease and the Exhibits hereto shall be construed as a
whole according to their common meaning in order to effectuate the intent of
the parties under the terms of this Sublease.
21. ENTIRE AGREEMENT; AMENDMENTS. This Sublease, together with the
Exhibits hereto, contain all the representations and the entire agreement
between the parties with respect to the subject matter hereof and any prior
negotiations, correspondence, memoranda, agreements, representations or
warranties are replaced in total by this Sublease, the Exhibits hereto.
Neither Sublessor nor Sublessor's agents have made any warranties or
representations with respect to the Sublease Premises or any other portion of
the Project, except as expressly set forth in this Sublease. This Sublease
may be modified or amended only by an agreement in writing signed by both
parties.
22. ATTORNEYS' FEES. If either Sublessor or Sublessee brings an action
or proceeding (including any cross-complaint, counterclaim or third party
claim) against the other party by reason of the breach or alleged violation
of any covenant, term or obligation hereof, or for the enforcement or
interpretation of any provision hereof, the prevailing party in such action
or proceeding shall be entitled to its costs and expenses of suit, including
reasonable attorneys' fees.
23. STANDARDS OF PERFORMANCE AND APPROVALS. Unless otherwise provided
in this Sublease, (i) each party shall act in a reasonable manner in
exercising or undertaking its rights, duties and obligations under this
Sublease and (ii) whenever approval, consent or satisfaction (collectively,
an "approval") is required of a party pursuant to this Sublease or an Exhibit
hereto, such approval shall not be unreasonably withheld or delayed. Unless
provision is made for a specific time period, approval (or disapproval) shall
be given within thirty (30) days after receipt of the request for approval.
Nothing contained in this Sublease shall limit the right of a party to act or
exercise its business judgment in a subjective manner with respect to any
matter as to which it has been (A) specifically granted such right, (B)
granted the right to act in its sole discretion or sole judgment, or (C)
granted the right to make a
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subjective judgment hereunder, whether "objectively" reasonable under the
circumstances and any such exercise shall not be deemed inconsistent with any
covenant of good faith and fair dealing implied by law to be part of this
Sublease. In addition to any specific provisions of this Sublease with
respect thereto, whenever under this Sublease Sublessor is required to use
reasonable good faith efforts, then, so long as Sublessor has so used such
reasonable good faith efforts with respect to the subject matter as to which
such obligation is imposed, except as otherwise provided herein, Sublessor
shall have no liability of any kind or character whatsoever to Sublessee with
respect to such matter or the results of Sublessor's reasonable good faith
efforts. The parties have set forth in this Sublease their entire
understanding with respect to the terms, covenants, conditions and standards
pursuant to which their obligations are to be judged and their performance
measured, including the provisions of Paragraph 7 with respect to assignments
and sublettings.
24. BROKERS. Sublessor shall pay to Sublessor's Broker a commission in
connection with Sublessor's Broker's negotiation of this Sublease pursuant to
a separate agreement between Sublessor and Sublessor's Broker. Subject to
fulfillment of the conditions precedent specified in Paragraph 28 below,
Sublessor shall pay to Sublessee's Broker a commission in amount of 5% of the
total consideration of this sublease, which based on a sublease value of
$221,000 is $11,050.00 for the Sublessee's Broker. Other than the Brokers,
Sublessor and Sublessee each represent and warrant to the other that no
broker, agent, or finder has procured or was involved in the negotiation of
this Sublease and no such broker, agent or finder is or may be entitled to a
commission or compensation in connection with this Sublease. Sublessor and
Sublessee shall each indemnify, defend, protect and hold the other harmless
from and against any and all liability, loss, damages, claims, costs and
expenses (including reasonable attorneys' fees) resulting from claims that
may be asserted against the indemnified party in breach of the foregoing
warranty and representation.
25. SURRENDER OF SUBLEASE PREMISES. Upon the Expiration Date or earlier
termination of this Sublease, Sublessee shall quietly and peacefully
surrender the Sublease Premises to Sublessor in the condition specified in
Section 5.9 of the Lease. On or before the Expiration Date or earlier
termination of this Sublease, Sublessee shall remove all of its personal
property from the Sublease Premises and repair at its cost and expense all
damage to the Sublease Premises or Project caused by such removal. All
personal property of Sublessee not removed hereunder shall be deemed, at
Sublessor's option, to be abandoned by Sublessee and Sublessor or Master
Landlord may store such property in Sublessee's name at Sublessee's expense
and/or dispose of the same in any manner permitted by law.
26. EXHIBITS. The following Exhibits are by this reference made a part
hereof:
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sum to the other party or a third person, shall survive the termination or
expiration of this Sublease.
28. CONDITION PRECEDENT. This Sublease is expressly conditioned upon
the prior written consent of Master Landlord. If Sublessor fails to obtain
Master Lessor's consent within twenty (20) days after the date of execution
of this Sublease by Sublessor and Sublessee, then Sublessor may terminate
this Sublease by giving Sublessee written notice of such termination.
29. GOVERNING LAW. This Sublease shall be governed by and construed
pursuant to the laws of the State of California.
30. TIME OF THE ESSENCE. Time is of the essence of this Sublease and of
the performance of each of the provisions contained in this Sublease.
IN WITNESS WHEREOF, the parties have executed this Sublease as of the
day and year first above written.
SUBLESSOR:
AIR LIQUIDE AMERICA CORPORATION, a
Delaware corporation (formerly known as LAI
PROPERTIES, INC.)
By: [ILLEGIBLE]
Its: Vice President
SUBLESSEE:
DELPHI INFORMATION SYSTEMS, INC, a
Delaware corporation
By: [ILLEGIBLE]
Its: Chief Financial Officer
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CONSENT TO SUBLEASE
(SEE ATTACHED LETTERS FROM MASTER LANDLORD]
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MASTER LANDLORD CONSENT TO SUBLEASE
The undersigned ("Master Landlord"), Landlord under the Master Lease,
hereby consents to the foregoing Sublease without waiver of any restriction or
any other provision of the Master Lease.
MASTER LANDLORD:
C-C CALIFORNIA PLAZA PARTNERSHIP,
a California General Partnership
BY: Cygna Development Corporation
a California Corporation
its general partner
By: [ILLEGIBLE]
Its: Project Manager
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