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EXHIBIT 10.10
SUBLEASE
EFFECTIVE DATE: December 15th, 1995
LESSOR: PHOENIX NEWSPAPERS, INC., an
Arizona corporation
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
LESSEE: PIRANHA INTERACTIVE PUBLISHING INC., an
Arizona corporation
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▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: J. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
RECITALS:
Lessor is the tenant under that certain Lease dated November
23, 1994 (the "Master Lease"), by and between Lessor, as tenant, and SFERS Real
Estate Corp.M, a Delaware corporation, as landlord ("Master Landlord").
Pursuant to the Master Lease, Lessor is leasing from Master
Landlord approximately 30,000 square feet of that certain building (the
"Building") located at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (the
"Property"), together with the right to use certain parking spaces and other
common areas comprising the Property.
Subject to the approval of Master Landlord, Lessor has the
right to sublease all or a portion of the premises being leased by Lessor from
Master Landlord ("Lessor's Leased Premises").
Lessee desires to lease approximately 4,751 square feet of the
Property outlined in red on Exhibit A attached hereto (the "Leased Premises")
from Lessor and Lessor is willing to lease the Leased Premises to Lessee on the
terms and conditions set forth herein.
NOW THEREFORE, FOR VALUABLE CONSIDERATION, it is agreed as
follows:
1. Leased Premises. Lessor hereby sublets to Lessee, and
Lessee hereby sublets from Lessor, the Leased Premises, together with the right
to use the common areas of the Property available to Lessor pursuant to the
Master Lease, including but not limited to the walkways, corridors, drives and
parking area.
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2. Sublease. Lessor and Lessee acknowledge and agree that this
Sublease is a sublease subject to all of the terms and conditions set forth in
the Master Lease, and shall be subordinate to the Master Lease and all the terms
and conditions of the Master Lease. Lessee shall perform faithfully and be bound
by all the terms, covenants, conditions, provisions and agreements of the Master
Lease, excepting only as to the rental, Direct Expenses, Services and Utilities,
Common Area Maintenance charges and taxes payable by the Lessor thereunder. This
Sublease shall in no way change or diminish Lessor's obligation to the Master
Landlord pursuant to the Lease. Lessee shall not commit or permit to be
committed on the leased premises any act or omission which shall violate any
term or condition of the Master Lease. Lessee specifically acknowledges that the
effectiveness of the Sublease is subject to the approval of the Master Landlord.
3. Term. The term of this Sublease shall be for a period of
four (4) years, commencing on the first (1st) day of December, 1995, at 12:01
a.m., and continuing to 11:59 p.m. on the 30th day of November 1999, subject to
the terms and conditions set forth in this Sublease which may permit or provide
for an earlier termination.
4. Assignment or Subletting. Lessee may assign or sublet its
interest in and to this Sublease provided that Lessee obtains the prior written
consent of Lessor and Master Landlord, which consent shall not be unreasonably
withheld. Lessee shall give Lessor and Master Landlord at least ninety (90) days
written notice prior to the commencement date of any such assignment or
subletting, which notice shall set forth the name of the proposed assignee or
subtenant, the relevant terms of any assignment or sublease and copies of
financial reports and other relevant financial information of the proposed
subtenant or assignee. Provided that Lessor and Master Landlord consent to such
an assignment or sublease, and such assignee or sublessee executes an instrument
in form acceptable to Lessor and in compliance with Section 9 of the Master
Lease, assuming all of Lessee's obligations hereunder, Lessee shall be released
from further obligation hereunder.
5. Rental. Lessee shall pay to Lessor as rental (which amount
includes all charges for utilities) during the term hereof the following on the
first (1st) day of each calendar month:
Period Monthly Rent
------ ------------
December 1, 1995
through
March 15, 1996 $0.00
March 16, 1996
through
November 30, 1996 $3,662.23
(March 1996 rent to be prorated)
December 1, 1996
through
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November 30, 1997 $3,761.21
December 1, 1997
through
November 30, 1998 $3,860.19
December 1, 1998
through
November 30, 1999 $3,959.17
Lessee shall also pay, as additional rental, any excise, privilege, or sales
taxes levied on the rent or the receipt thereof by Lessor. In addition, to the
extent that as a result of fire or other casualty, Lessor receives an abatement
of its rent pursuant to the Master Lease, Lessee shall receive a corresponding
abatement of its rent pursuant to this Sublease.
6. Security Deposit. Lessee shall deposit with Lessor upon the
execution of this Sublease a security deposit in the amount of $3,662.23. Said
security deposit may be commingled with Lessor's general funds, and Lessee shall
not be entitled to any interest on the security deposit. In the event that
Lessee fully performs its obligations under this Sublease, the security deposit
shall be refunded to Lessee upon the expiration of the term of this Lease. In
the event of any default by Lessee, Lessor shall be entitled to apply the
security deposit to amounts owing pursuant to this Sublease. If any portion is
to used, Lessee shall within five (5) days after written notice from Lessor,
deposit with Lessor an amount sufficient to restore the security deposit to the
original amount.
7. Direct Expenses/Taxes. Lessor, pursuant to the terms of the
Master Lease, is responsible for the payment of the Property's proportionate
share of Direct Expenses and Taxes, as defined in the Master Lease. Lessee shall
have no liability for the same which are applicable to the Leased Premises.
Except as specifically set forth in Section 5 above, Lessor shall be solely
responsible for the payment of Direct Expenses and Taxes applicable to the
Leased Premises.
8. Parking. Subject to Section 17.2 of the Master Lease,
Lessee shall be entitled to the use of up to twenty-five (25) parking spaces
from 5:01 a.m. until 11:00 p.m. each day, and no more than ten (10) parking
spaces from 11:01 p.m. until 5:00 a.m. each day. The above described parking
spaces shall be as close as possible to the Leased Premises.
9. Signage. Subject to receiving the approval (which approval
may be conditioned upon, among other things, receipt of plans, specifications
and manner of affixation) of the Master Landlord, and any and all necessary
governmental entities, Lessee shall have the right, at its sole cost and
expense, to install signage on the entry door of the Leased Premises and on the
upper exterior wall of the Leased Premises.
10. Use. The Leased Premises shall be used solely for the
purposes of operating an administrative office of software publishing and design
business, and in full compliance with Section 1 of the Master Lease. Any other
uses of the Leased Premises shall
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be subject to Lessor's and Master Landlord's prior approval, which approval
shall not be unreasonably withheld. Lessee's business shall be established and
conducted throughout the term hereof in a first class manner. Lessee shall not
use the Leased Premises for, or carry on, or permit to be carried on, any
offensive, noisy or dangerous trade, business, manufacture or occupation nor
permit any auction sale to be held or conducted on or about the Leased Premises.
Lessee shall not do or suffer anything to be done on the Leased Premises which
will cause structural injury to the Leased Premises or the building of which the
same forms a part. The Leased Premises shall not be overloaded and no machinery,
apparatus or other appliance shall be used or operated upon the Leased Premises
which will in any manner injure, vibrate or shake the Leased Premises or the
building of which it is a part. No use shall be made of the Leased Premises
which will in any way impair the efficient operation of the sprinkler system
within the building containing the Leased Premises. Lessee shall not leave the
Leased Premises unoccupied or vacant during the term. No musical instrument of
any sort, or noise making device will be operated or allowed upon the Leased
Premises for the purpose of attracting trade or otherwise. Lessee shall not use
or permit the use of the Leased Premises or any part thereof for any purpose
which will increase the existing rate of insurance upon the building in which
the Leased Premises are located, or cause a cancellation of any insurance policy
covering the building or any part thereof. If any act on the part of Lessee or
use of the Leased Premises by Lessee shall cause directly or indirectly, any
increase of Lessor's or Master Landlord's insurance expense, said additional
expense shall be paid by Lessee to Lessor or Master Landlord, as applicable,
upon demand; provided, however, Lessor acknowledges that the use of the Leased
Premises for purposes of operating a software publishing and design business
will not cause any such premium increase. No such payment by Lessee shall limit
Lessor or Master Landlord, as applicable, in the exercise of any other rights or
remedies, or constitute a waiver of Lessor's or Master Landlord's right to
require Lessee to discontinue such act or use.
11. Improvements. Lessee, at its sole cost and expense, may
make such improvements to the Leased Premises as it deems necessary, subject
however to receiving the prior written approval of Lessor and Master Landlord,
and in compliance with Sections 6, 7 and 8 of the Master Lease, and all
necessary governmental permits and approvals for each such improvement. Lessee
preliminary intends to make the improvements listed on Exhibit B attached
hereto; provided however, inclusion on Exhibit B shall not be deemed to be
Master Landlord's final approval of the same. Lessor and Master Landlord shall
approve, or give a detailed explanation of objections to, Lessee's formal
presentation/request for tenant improvements (to follow execution of this
Sublease under separate cover) within five (5) business days of their receipt of
such written request. Any delay in responding beyond such five (5) business days
shall result in the abatement of the rental payments (scheduled to commence on
March 16, 1996) which abatement shall continue for the number of days equal to
the length of such delay. Upon the expiration or termination of the Sublease,
all such improvements shall become the property of Lessor, and Lessee shall have
no right, title or interest in or to the same.
12. Truck Parking. Lessee shall have the right to temporarily
park a truck near the Leased Premises (during the hours of 7:00 a.m. through
7:00 p.m.) for not more than 15 minutes at any one time, for the purpose of
offloading and loading its product.
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13. Premises Maintenance. Lessee shall at all times, at its
sole cost and expense, maintain the interior of the Leased Premises in good and
sanitary condition and repair. Lessor shall at all times, at its sole cost and
expense, maintain or cause to be maintained the exterior of the Leased Premises
and the structural integrity of the Leased Premises including HVAC, the roof and
major plumbing.
14. Insurance. At all times during the term of this Sublease,
Lessee, at its sole cost and expense, shall comply with the insurance provision
of the Master Lease, and shall provide Master Landlord and Lessor (who shall
also be named as an additional insured under all such policies of insurance)
with the insurance terms and coverages set forth in the insurance provision of
the Master Lease.
15. Encumbering the Leased Premises. During the term of this
Sublease, Lessee shall not cause or permit any lien, claim, charge or
encumbrance of any nature or description whatsoever to attach to or encumber the
Leased Premises or any part thereof.
16. Indemnity. Lessee covenants and agrees to indemnify and
save Lessor, Master Landlord and their respective officers, directors, employees
and agents, entirely harmless for, from and against each and every claim,
demand, liability, loss, cost, damage and expense, including, without
limitation, reasonable attorneys' fees and court costs, arising out of any
accident or other occurrence causing injury to or death of persons or damage to
property by reason of the use or neglect of the Leased Premises by Lessee or any
agent, employee, invitee, contractor, or customer of Lessee, or any other
person, or otherwise occurring upon the Lease Premises, unless resulting from
the negligence of Landlord or Master Landlord. Lessee further agrees to
indemnify and save Lessor, Master Landlord and their respective officers,
directors, employees and agents, and its interests in the Leased Premises
entirely harmless from all claims, demands, liabilities, damages and penalties
arising out of any failure of Lessee to comply with any of Lessee's obligations
under the Sublease, including without limitation reasonable attorneys' fees and
court costs, unless resulting from the negligence or misconduct of Landlord or
Master Landlord.
17. Lessor's Access to Leased Premises. Lessor, Master
Landlord and their agents, at all reasonable times, shall have free access to
the Leased Premises for the purpose of examining or inspecting the condition
thereof, for the purpose of determining if Lessee is performing the covenants
and agreements of this Sublease, and during the final lease year, for the
purpose of showing the Leased Premises to other prospective tenants. Lessor and
Master Landlord shall give Lessee reasonable notice of Lessor's intent to enter
the Leased Premises and shall use its best efforts not to interfere with
Lessee's business operation during such entry. No such notice shall be required
in cases of an emergency.
18. Default. Upon the nonpayment of any portion of rent due
hereunder, or any other sum or sums of money due to Lessor under the provision
hereof, or upon the non-performance by Lessee of any other covenant or condition
herein set forth on the part of Lessee to be kept and performed, Lessee shall be
in default hereunder; provided, however, Lessor shall not be entitled to
exercise its remedies for default unless Lessor shall have given Lessee written
notice of the default and Lessee shall have failed to cure such default on or
before ten (10) days
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after Lessee receives such notice. Upon such default and the expiration of the
grace period, it shall be lawful for Lessor, at its option, to declare a
termination of this Sublease and to re-enter upon the Leased Premises and to
again repossess and enjoy the same and all the improvements thereon free of any
claims or interest of Lessee whatsoever. In addition, upon such default, Lessor
shall be entitled to avail itself of whatever remedies it may have at law or in
equity for the collection of any unpaid rentals hereunder, past and future, or
for any damages that it may have sustained by reason of the breach by Lessee of
the terms and condition thereof. No termination of this Sublease by forfeiture
nor taking or recovering possession of the Leased Premises shall deprive Lessor
of any other action, right, or remedy against Lessee. Any sum of money not paid
when due shall bear interest from the due date until paid at the rate of
eighteen percent (18%) per annum, and shall be subject to a late charge of six
percent (6%) of the sum due.
19. Waiver of Breach. No waiver by Lessor or Lessee of the
breach of any provision of this Sublease shall be construed as a waiver of any
preceding or succeeding breach of the same or any other provision of this
Sublease, nor shall the acceptance of rent by Lessor during any period of time
in which Lessee is in default in any respect other than payment of rent be
deemed to be a waiver of such default.
20. Notices. Notices shall be in writing and shall be given by
personal delivery or by deposit in the United States mail, certified mail,
return receipt requested (which receipt shall be preserved as evidence of
delivery), postage prepaid, addressed to Lessor and Lessee at the following
addresses:
If to Lessor: Phoenix Newspapers, Inc.
Attn: ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
If to Lessee: Piranha Interactive Publishing, Inc.
Attn: J. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
The date notice is effective shall be the date upon which the notice is actually
received, whether notice is given by personal delivery or is sent through the
United States mail. Either party may furnish to the other in writing a different
mailing address and designate another individual upon whom all notices may be
served as herein provided.
21. Attorneys' Fees. If any action is brought by any party
(including Master Landlord) to this Sublease in respect of its rights hereunder,
the prevailing party shall be entitled to reasonable attorneys' fees and court
costs as determined by the court.
22. Insolvency. Should Lessee at any time during the term of
this Sublease become insolvent, or if proceedings in bankruptcy shall be
instituted by or against Lessee, or if a receiver or trustee shall be appointed
of Lessee's property, or if this Sublease shall, by
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operation of law, devolve upon or pass to any person or persons other than
Lessee, then, and in each of such cases, it shall be lawful for Lessor, at its
own election, to declare this Sublease terminated.
23. Holding Over. If Lessee shall hold over said term of this
Sublease with the consent of Lessor, express or implied, such holding shall be
construed to be a tenancy from month to month at 150% of the rental for the last
month of the original term hereof.
24. Waiver of Responsibility. Provided that Lessor is not
negligent in its compliance with its obligations contained in Section 13, Lessor
shall not, under any circumstance, be liable or otherwise accountable to Lessee
or to any third person for any damage or injury to Lessee or to any third person
or to the property of Lessee or of any third person, however caused, and whether
such damage or injury has its origin in the Leased Premises hereby sublet or
elsewhere. In no event shall Master Landlord be liable or otherwise accountable
to Lessee or to any third person for any damage or injury to Lessee or to any
third person of the property of Lessee or of any third person, however caused,
and whether such damage or injury has its origin in the Leased Premises hereby
sublet or elsewhere. This provision applies to such items as, but is not limited
to, damage to any of the fixtures, merchandise, property or equipment contained
in the Leased Premises, whether owned by Lessee or by any other person, due to
the overflowing or breaking of steam, sewer or water pipes, tanks, drains,
boilers, basins, toilets, lavatories, or gutters, or other plumbing, or from
smoke, fire, odors, earthquake, explosion, gas, electricity, lightning, and
wiring, or from any other cause whatever.
25. Compliance with Laws. Throughout the term hereof, Lessee
shall, at its sole cost and expense, at all times comply with all Federal, State
and local laws, rules, regulations, administrative orders and ordinances,
including but not limited to the Americans with Disabilities Act.
26. Governing Law. This Sublease shall be governed by and
construed in accordance with the internal laws of the State of Arizona without
regard to conflict of laws principles.
27. Recording. Neither Lessor nor Lessee shall record the
Sublease, or any memorandum of this Sublease.
28. Limitation of Master Landlord's Liability. Redress for any
claims against Master Landlord under the Master Lease or the Sublease shall only
be made against Master Landlord to the extent of Master Landlord's interest in
the property of which the Subleased Premises are a part. The obligations of
Master Landlord under the Master Lease or the Sublease shall not be personally
binding on, nor shall any resort be had to the private properties of, any of its
trustees or board of directors and officers, as the case may be, the general
partners thereof or any beneficiaries, stockholders, employees or agents of
Master Landlord or the investment manager.
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29. Miscellaneous. The Sublease of the Leased Premises shall
include the assignment to Lessee by Lessor of one of the large mailboxes outside
the entrance of the Leased Premises and shall also include access to one or more
dumpsters for trash/garbage disposal. Lessee acknowledges and agrees that said
dumpster(s) is/are located in the common area behind the Property and the Leased
Premises.
In witness whereof, the parties hereto have executed this
instrument as of the day and year first above written.
PHOENIX NEWSPAPERS, INC., an Arizon
a corporation
By ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------
Its Assistant Secretary
PIRANHA INTERACTIVE PUBLISHING,
INC., an Arizona corporation
By ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------
Its President
CONSENTED AND ACKNOWLEDGED
SFERS Real Estate Corp.M,
a Delaware corporation
By: RREEF MANAGEMENT COMPANY,
a California corporation
By ____________________________
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its District Manager
Date 12-27-95
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EXHIBIT A
Outline of Leased Premises
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EXHIBIT B
All work is subject to the review and approval of Master Landlord and Lessor
(which shall not be unreasonably withheld) and all necessary governmental
approvals, including but not limited to the City of Tempe.
1. New exterior door in rear, where proposed. Door needs safety glass
window above it or a safety glass pane set into the door. Cement walk
poured from new exterior door to parking asphalt. (AS TO THIS
IMPROVEMENT ONLY, LESSOR SHALL REIMBURSE LESSEE UPON SUBMISSION OF
APPROPRIATE INVOICES, IN AN AMOUNT NOT TO EXCEED $4,000.00).
2. Remove East wall/door of reception area. Add electrical outlets in
reception and elsewhere as necessary. Light switch to control hallway
lights placed in reception area.
3. Subdivide three north offices into four smaller ones with widths of
11'7", 10', 10' and 10', per sketch.
4. Small 5'x5' closet built in back of corridor. Door needs small vent and
doorknob must have keyed security lock. Move phone line panel to
interior of this closet. Two electrical outlets installed in closet.
5. Floor cabinets with countertop and wall cabinets built in remainder of
corridor (color to be determined). Three electrical outlets installed
along wall at back of countertop.
6. Remove east wall of breakroom, reverse kitchen cabinets so accessible
from east instead of west, add demising wall at new back of cabinets.
Replace break sink and countertop. Sink should be wider/deeper and
stainless steel. Countertop color to be determined.
7. Door with keyed security lock added to close off corridor just past
break area. West and south walls of current breakroom removed. *SUBJECT
TO FIRE CODE RESTRICTIONS*
8. Close large door in north wall of office adjoining dead-end corridor.
Place normal door in west wall.
9. Close off storage closet in men's room with angled wall. Add angled
wall in women's room. Add wooden accordion (closet) doors to access the
bathroom storage closet instead from hallway. Reverse bathroom doors
**SUBJECT TO COMPLIANCE WITH ADA STANDARDS**
10. Restroom sinks and toilets replace with new fixtures. Commodes should
be elongated design. Countertops replaced (color to be determined). One
more fluorescent light or
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incandescent lights at wash basin in each restroom. Second sink in
men's room removed and capped off to make room for supplies storage
shelving.
11. Conference room door and wall replaced with glass panels which can open
entire west wall.
12. Three walkway/entryway lights added, one entryway light over each
entrance and one walkway light in the middle portion of Leased
Premises. (TO BE PERFORMED BY LESSOR SUBJECT TO CITY OF TEMPE APPROVAL)
13. Add 10'x15' graveled area on exterior, with cement table, benches.
14. Glass pane with mail slot to be removed and replaced. (TO BE PERFORMED
BY LESSOR)
15. Permission to add company name and logo signage in vinyl letters on
door/entry window provided the same is consistent with Master Landlord
Signage standards. Permission to install our own non-back lit lighted
sign with company name and logo on upper exterior wall which forms the
exterior wall of the Leased Premises, to be visible at night from
Interstate 10. SUBJECT TO MASTER LESSOR APPROVAL, MASTER LEASE SIGNAGE
CRITERIA, PLACEMENT AND CITY OF TEMPE. LESSOR SHALL ASSIST AS
REASONABLY NECESSARY IN OBTAINING MASTER LANDLORD APPROVAL.
16. All carpet and tile removed, floor sanded, painted (color to be
determined), and gloss- coated. No new carpet or tile to be applied.
17. Walls painted (color to be determined). Doors and door frames painted
(block). Floor molding and trim replaced (black). New mini-blinds
(color to be determined).
18. All damaged ceiling tiles replaced and roof leaks repaired. (TO BE
PERFORMED BY LESSOR)
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