Exhibit 10.16
Commercial Sublease Page 1 of 6
COMMERCIAL SUBLEASE
Sublease made 08/30, 2001, between Video Internet Broadcasting
Corporation, a Washington Corporation, herein referred to as Sublessee, and
Public Utility District No. 2 of Grant County, Washington, herein referred to as
Lessee, and Moore Furniture Incorporated, herein referred to as Lessor.
RECITALS
Lessee has leased the premises from Lessor under a separate lease
agreement between Lessor and Lessee, herein referred to as the Basic Lease,
attached hereto as Exhibit "A".
Sublessee desires to sublease a portion of the Premises from Lessee.
In consideration of the mutual covenants contained herein, the parties agree as
follows:
1. Description of Premises. Sublessee leases from Lessee a portion of the
Premises leased to Lessee by Lessor. The portion subleased is described
in Exhibit 13 attached hereto.
2. Term. The term of this Commercial Sublease shall be co-extensive with
that of the Basic Lease and subject to all termination and cancellation
provisions provided therein as well as those contained in this
Commercial Sublease.
3. Basic Lease. Sublessee shall be bound by and fully perform and comply
with each and every covenant and condition contained in the Basic Lease
(except the provision to pay rent to the Lessor) and this Commercial
Sublease is hereby expressly made subject to all of' the terms,
conditions and Iimitations contained in the Basic Lease.
Rent. Sublessee shall make monthly rental payments to Lessee in amount
which is equal to seventy-two and six tenths percent (72.6%) of the
amount of the rent which Lessee is required to pay Lessor for such
month pursuant to the terms of the Basic Lease. Rent shall be paid on
the first day of each calendar month and rent for any partial month
shall be prorated.
5. Utilities. Sublessee shall pay Lessee on a monthly basis, seventy-two
and six tenths percent (72.6%) of the monthly charges for utilities
supplied to the Premises including, without limitation, water,
electricity, sewer, waste disposal and security during the term of the
Commercial Sublease. Payment shall be made to Lessee within 10 days
after Sublessee is notified of the billing amount.
6. Indemnity. Sublessee agrees to defend, indemnify and hold Lessee and
Lessor and their respective employees, officers and agents harmless
from any and all claims arising from Sublessee's use of the Premises,
from the conduct of Sublessee's business, or from any activity, work or
things done or permitted to be done by Sublessee on the Premises or
elsewhere. Sublessee further agrees to indemnify and hold Lessee and
Lessor and their respective employees, officers and agents harmless
from any and all claims arising from,
Commercial Sublease Page 2 of 6
in connection with, or related to any default by Sublessee in the
performance of its obligations under this Commercial Sublease, or any
act, omission or neglect of Sublessee, its agents or invitees.
Sublessee further agrees to indemnify and hold Lessee and Lessor and
their respective employees, officers and agents from all costs
(including but not limited to attorneys fees) incurred by them in
connection with the defense against any claims made against any of them
as to which Sublessee is required to provide indemnification pursuant
to this provision. Sublessee shall give prompt notice to Lessee and
Lessor of any casualty or accident in the Premises. Upon notice by
Lessee or Lessor. Sublessee at Sublessee's expense, shall defend Lessee
and Lessor and their respective employees, officers and agents, in any
action or proceeding brought against any of them by reason of any such
claim.
7. Restrictions on Use. Sublessees use of the Premises shall be subject to
all restrictions and limitations contained in the Basic Lease.
8. Default. The occurrence of any one or more of the following events
shall constitute a default and breach of this Commercial Sublease by
Sublessee.
a) The vacating or abandonment of the Premises by Sublessee prior
to the termination of the Commercial Sublease.
b) The failure by Sublessee to make when due any payment of rent
or any other payment required to be made by Sublessee under
this Sublease, where such failure shall continue for a period
of three (3) days after written notice of default from Lessee
to Sublessee. In the event that Lessee serves Sublessee with a
notice to pay rent or vacate pursuant to applicable unlawful
detainer status, such notice to pay rent or vacate shall also
constitute the notice required by this provision.
b) The failure by Sublessee to observe or perform any of the
covenants, conditions or provisions of this Commercial
Sublease to be observed or performed by Sublessee. other than
those described above, for a period of thirty (30) days after
written notice of such default from Lessee to Sublessee;
provided, however, that if the nature of Sublessee default is
such that more than thirty (30) days are reasonably required
for its cure, then Sublessee shall not be deemed to be in
default if Sublessee commences a cure within that thirty (30)
day period and thereafter diligently prosecutes the cure to
completion.
c) Sublessee becomes a debtor as defined in the Bankruptcy Code,
11 USC Section 101, or any successor statute, or if trustee or
a received is appointed to take possession of substantially
all of the Sublessee's assets located at the Premises or a
Sublessee's interest in this Commercial Lease.
d) Any other occurrence, which constitutes a material default
under other provisions of this Commercial Lease.
Commercial Sublease Page 3 of 6
9. Remedies. In the event of a material default or breach by Sublessee,
Lessee may at any time thereafter, with or without notice or demand and
without limiting Lessee. in the exercise of any right or remedy which
Lessee may have by reason of such default or breach:
a) Terminate Sublessee's right to possession of its subleased
portion of the Premises by any lawful means, in which case
this Commercial Sublease shall terminate and Sublessee shall
immediately surrender possession of the Premises to Lessee. In
this event, Lessee shall be entitled to recover from Sublessee
all damages incurred by Lessee by reason of Sublessee default
including, but not limited to: the cost of recovering
possession of the Premises; expenses of relating (including
necessary renovation and alteration of the Premises);
reasonable attorney's fees and costs and any real estate
commission actually paid; the amount of any unpaid rent or
other charges owed by Sublease to Lessee which had been earned
at the time of termination; the amount by which the unpaid
rent or other charges for the balance of the term after the
time of such award exceeds the amount of such rental or other
loss for the same period that Sublessee proves could
reasonably be avoided; and that portion of the leasing
commission paid by Lessee according to this Commercial
Sublease applicable to the unexpired term of this Commercial
Lease.
b) Pursue any other remedy now or afterwards available to Lessee
under the laws or judicial decisions of the state where the
Premises are located.
10. Late Charges. Sublessee acknowledges that late payment by Sublessee to
Lessee of rent and other sums due under this Commercial Sublease will
cause Lessee to incur costs not contemplated by this Commercial
Sublease, the exact amount of which will be extremely difficult to
ascertain. These costs include but are not limited to, processing and
accounting charges and late charges, which may be imposed on Lessee.
Accordingly, if any installment of rent or other sums due from
Sublessee shall not be received by Lessee within ten (10) days after
the amount shall be clue or if any rent check should be returned for
non-sufficient funds, then without any requirement of notice to
Sublessee, Sublessee shall pay to Lessee a late charge of $75.00 for
each month of delinquency. If rent is unpaid at end of initial month of
delinquency, an additional interest charge of l c/a monthly on the
unpaid balance will be made. The parties agree that this late charge
plus interest represents fair and reasonable estimate of the cost
Lessee will incur by reason of late payment by Sublessee. Acceptance of
the late charge by Sublessee shall in no event constitute a waiver of
Sublessee's default with respect to the overdue amount, no prevent
Lessee from exercising any of the other rights or remedies granted to
Lessee under this Commercial Lease, or at law or equity.
11. Corporate Authority. The individual executing this Commercial Sublease
on behalf of Sublessee represents and warrants that he or she is duly
authorized to execute and deliver this Commercial Sublease on behalf of
said Corporation, in accordance with a duly adopted resolution of the
board of directors of said corporation authorizing and consenting to
this Commercial Lease; specifically authorizing the designated officers
signing this Commercial Sublease to execute, acknowledge and deliver
the same.
Commercial Sublease Page 4 of 6
12. Exhibits and Addendums. Any exhibits and addendums attached to this
Commercial Sublease are a part hereof and are fully incorporated in
this Commercial Sublease by this reference.
13. Non-Waiver of Default. Neither Lessee's nor Sublessee's waiver of any
term, covenant or condition of this Commercial Sublease shall be deemed
to he a waiver of any other term, covenant or condition or any
subsequent default under the same or any other term, covenant or
condition.
14. Time. Time is of the essence of this Commercial Sublease.
15. Successors and Assigns. The covenants and condition of this Commercial
Sublease apply to and bind the heirs, successors, executors,
administration and assigns of all parties of this Commercial Sublease.
16. Recordation. A short form memorandum may be recorded at the request of
either party, and at the requesting party's expense.
17. Prior Agreements. This Commercial Sublease contains the full agreement
of the parties with respect to any matter covered or mentioned in this
Commercial Sublease. No prior agreements or understanding pertaining to
any such matters shall be effective for any purpose. This Commercial
Sublease may be amended or supplemented only by an agreement in writing
sighed by the parties or their respective successors in interest.
18. Severability. Any provision of this Commercial Sublease which shall
rove to be invalid, void or illegal shall in no way affect, impair or
invalidate any other provision, and all other provisions shall remain
in full force and effect.
19. Cumulative Remedies. No remedy or election under this Commercial
Sublease shall be deemed to be exclusive but shall, whenever possible,
be cumulative with all other remedies at law or in equity.
20. Choice of Law. The laws of the State of Washington shall govcrn this
Commercial Sublease.
21. Attorney's Fees. In the event any action or proceeding is brought by
either party against the other arising out of or in connection with
this Commercial Sublease the prevailing party shall be entitled to
recover its costs, including, but not limited to, reasonable attorneys
and accountant's fee, incurred in such action or proceedings, including
any appeal.
22. Notices. Al! notices or demands which are required or permitted to be
given by either party to the other under this Commercial Sublease shall
be in writing. Except as otherwise provided in any addendum, all
notices and demands to the Sublessee shall be either personally
delivered or sent by US Mail, registered or certified, postage prepaid,
Commercial Sublease Page 5 of 6
addressed to the Sublessee at the Premises, or at the address set forth
below, or to such other place as Sublessee may from time to time
designate in a notice to the Lessee. Except as provided in any
addendum, all notices and demands to the Lessee shall be either
personally delivered or sent by US Mail, registered or certified,
postage prepaid, addressed to the Lessee at the address set forth
below, or to such other person or place as the Landlord may from time
to time designate in a notice to the Sublessee. Any notices sent by US
Mail as provided above shall be deemed to have been received three (3)
days after deposit into the mail.
Sublessee Address: Lessee AddressGrant County PUD
PO Box 878
Ephrata, WA 98823
23. Legal Document. Sublessee understands that this is a legally binding
contract. Sublessee has carefully read each of is provisions, and prior
to execution of the Commercial Lease, represents and warrants that
Sublessee has discussed the legal effect of the Commercial Sublease
with Sublessee's legal counsel.
IN WITNESS WHEREOF, the parties have executed this instrument as of the day and
year first above written:
Sublessee Lessee
By: /s/ W. Kelly Ryan By: /s/ H.E. Williams
Name: W. Kelly Ryan Name:H. E. Williams
Title: CEO Title: Customer Service Director
Date: 8/30/01 Date: 8/30/01
Consent of Lessor
The undersigned, the authorized agent of the Lessor of the Premises of
held by Lessee under the Basic Lease, does hereby consent for and on behalf of
the Lessor to the above Commercial Sublease.
Lessor: By: /s/ W Kelly Ryan
Name: W Kelly Ryan
Title: President
Date:09/05/01
Commercial Sublease Page 6 of 6
LESSOR
STATE OF WASHINGTON COUNTY OF GRANT
CORPORATE ACKNOWLEDGEMENT
On this day personally appeared before me to me Kelly Moore known to be the
Individual who executed the within and foregoing instrument as duly appointed
_______ and acknowledges that he/she signed the same as his/her free and
voluntary act and deed and on oath stating that his/her powers authorizing the
execution of this instrument have not been revoked.
GIVEN under my hand and official seal the 5th day of September, 2001.
STATE OF WASHINGTON COUNTY OF GRANT CORPORATE ACKNOWLEDGEMENT
On this day personally appeared before me to me H.E. Williams known to be the
individual who executed the within and foregoing instrument as duly appointed
Customer Service and acknowledges that he/she signed the same as his/her free
and voluntary act and deed and on oath stating that his/her powers authorizing
the execution of this instrument have not been revoked.
;v'e?,he execution of this instrument have not been revoked. GIVEN under my hand
and official seal the 30th day of August, 2001.
SUBLESSEE
STATE OF WASHINGTON COUNTY OF GRANT
CORPORATE ACKNOWLEDGEMENT
On this day personally appeared before me to meW Kelly Ryan known to be the
individual who executed the within and foregoing instrui seat as duly
appointed__________ CEO , and acknowledges that he/she signed the same as
his/her free and voluntary act and deed and on oath stating that his/her powers
authorizing the execution of this instrument have not been revoked. GIVEN under
my hand and official seal the 30th day of August, 2001.