California-Fremont-6607 Dumbarton Circle Sublease - Ciphergen Biosystems Inc. and BigBand Networks Inc.
[AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION LOGO]
STANDARD SUBLEASE
(Short-form to be used with post 1995 AIR leases)
1. PARTIES. This Sublease, dated, for reference purposes only, August
25, 2000, is made by and between Ciphergen Biosystems, Inc. ("Sublessor") and
BigBand Networks ("Sublessee").
2. PREMISES. Sublessor hereby subleases to Sublessee and Sublessee
hereby subleases from Sublessor for the term, at the rental, and upon all of
the conditions set forth herein, that certain real property, including all
improvements therein, and commonly known by the street address of 6607
Dumbarton Circle Fremont located in the County of Alameda, State of
California and generally described as (describe briefly the nature of the
property) 30,488 sq. ft. section of a larger 60,720+/- sq. ft. single story
office/R&D building ("Premises").
3. TERM.
3.1 TERM. The term of this Sublease shall be for Eighteen (18)
months commencing on October 1, 2000 and ending on March 31, 2002 unless
sooner terminated pursuant to any provision hereof.
3.2 DELAY IN COMMENCEMENT. Sublessor agrees to use its best
commercially reasonable efforts to deliver possession of the Premises by the
commencement date. If, despite said efforts, Sublessor is unable to deliver
possession as agreed, the rights and obligations of Sublessor and Sublessee
shall be as set forth in Paragraph 3.3 of the Master Lease (as modified by
Paragraph 7.3 of this Sublease).
4. RENT.
4.1 BASE RENT. Sublessee shall pay to Sublessor as Base Rent for
the Premises equal monthly payments of $160,062 in advance, on the First (1st)
day of each month for the period from October 1, 2000 thru September 30,
2001, commencing October 1, 2001 thru March 31, 2002, Sublessee shall pay to
Sublessor on Base Rent for the Premises equal monthly payments of
$166,159.80. Sublessee shall pay Sublessor upon the execution hereof
$160,062.00 as Base Rent for October 1-31, 2000 Base Rent for any period
during the term hereof which is for less than one month shall be a pro rata
portion of the monthly installment.
4.2 RENT DEFINED. All monetary obligations of Sublessee to
Sublessor under the terms of this Sublease (except for the Security Deposit)
are deemed to be rent ("Rent"). Rent shall be payable in lawful money of the
United States to Sublessor at the address stated herein or to such other
persons or at such other places as Sublessor may designate in writing.
5. SECURITY DEPOSIT. Sublessee shall deposit with Sublessor upon
execution hereof $332,319.20 as security for Sublessee's faithful performance
of Sublessee's obligations hereunder. The rights and obligations of Sublessor
and Sublessee as to said Security Deposit shall be as set forth in Paragraph
5 of the Master Lease (as modified by Paragraph 7.3 of this Sublease).
6. USE.
6.1 AGREED USE. The Premises shall be used and occupied only for
general office, research and development and other uses necessary for
Sublessee to conduct Sublessee's business provided that such uses shall be in
accordance with all applicable governmental laws and ordinances, and for no
other purpose.
6.2 COMPLIANCE. Sublessor warrants that the improvements on the
Premises comply with all applicable covenants or restrictions of record and
applicable building codes, regulations and ordinances ("Applicable
Requirements") in effect on the commencement date. Said warranty does not
apply to the use to which Sublesee will put the Premises or to any
alterations or utility installations made or to be made by Sublessee. NOTE:
Sublessee is responsible for determining whether or not the zoning is
appropriate for its intended use, and acknowledges that past uses of the
Premises may no longer be allowed. If the Premises do not comply with said
warranty, or in the event that the Applicable Requirements are hereafter
changed, the rights and obligations of Sublessor and Sublessee shall be as
provided in Paragraph 2.3 of the Master Lease (as modified by Paragraph 7.3
of this Sublease).
6.3 ACCEPTANCE OF PROMISES AND LESSEE. Sublessee acknowledges that:
(a) it has been advised by Brokers to satisfy itself with
respect to the condition of the Premises (including but not limited to the
electrical, HVAC and fire sprinkler systems, security, environmental aspects,
and compliance with Applicable Requirements), and their suitability for
Sublessee's intended use.
(b) Sublessee has made such investigation as it deems
necessary with reference to such matters and assumes all responsibility
therefor as the same relate to its occupancy of the Premises, and
(c) neither Sublessor, Sublessor's agents, nor any Broker has
made any oral or written representations or warranties with respect to said
matters other than as set forth in this Sublease.
In addition, Sublessor acknowledges that:
(a) Broker has made no representations, promises or warranties
concerning Sublessee's ability to honor the Sublease or suitability to occupy
the Premises, and
(b) it is Sublessor's sole responsibility to investigate the
financial and/or suitability of all proposed tenants.
7. MASTER LEASE
7.1 Sublessor is the lessee of the Premises by virtue of a lease,
hereinafter the "Master Lease", and Amendment No. 1 to lease, a copy of which
is attached hereto marked Exhibit 1, and 2 wherein John Arrillaga Survivor's
Trust and Richard T. Peery Separate Property Trust is the lessor, hereinafter
the "Master Lessor".
7.2 This Sublease is and shall be at all times subject and
subordinate to the Master Lease.
7.3 The terms, conditions and respective obligations of Sublessor
and Sublessee to each other under the Sublease shall be the terms and
conditions of the Master Lease except for those provisions of the Master
Lease which are directly contradicted by this Sublease in which event the
terms of this Sublease document shall control over the Master Lease.
Therefore, for the purposes of this Sublease, wherever in the Master Lease
the word "Lessor" is used it shall be deemed to mean the Sublessor herein and
whenever in the Master Lease the word "Lessee" is used it shall be deemed to
mean the Sublessee herein.
7.4 During the term of this Sublease and for all periods subsequent
for obligations which have arisen prior to the termination of this Sublease.
Sublessee does hereby expressly assume and agree to perform and comply with,
for the benefit of Sublessor the Master Lessor, each and every obligation
of the Sublessor under the Master Lease except for the following paragraphs
which are excluded therefrom: 3, 4, 39, Amendment No. 1 to
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Lease paragraphs: 6, 7, 43
7.5 The obligations that Sublessee has assumed under paragraph 7.4
hereof are hereinafter referred to as the "SUBLESSEE'S ASSUMED OBLIGATIONS".
The obligations that Sublessee has not assumed under paragraph 7.4 hereof are
hereinafter referred to as the "SUBLESSOR'S REMAINING OBLIGATIONS".
7.6 Sublessee shall hold Sublessor free and harmless from all
liability, judgments, costs, damages, claims or demands, including
reasonable attorneys' fees, arising out of Sublessee's failure to comply with
or perform Sublessee's Assumed Obligations.
7.7 Sublessor agrees to maintain the Master Lease during the entire
term of this Sublease, subject, however, to any earlier termination of the
Master Lease without the [ILLEGIBLE] at the Sublessor, and to comply with or
perform Sublessor's Remaining Obligations and to hold Sublessee free and
harmless from any liability, judgments, costs, damages, claims or demands
arising out of Sublessor's failure to comply with or perform Sublessor's
Remaining Obligations.
7.8 Sublessor represents to Sublessee that the Master Lease is in
full force and effect and that no default exists on the part of any Party to
the Master Lease.
8. ASSIGNMENT OF SUBLEASE AND DEFAULT.
8.1 Sublessor hereby assigns and transfers to Master Lessor the
Sublessor's interest in this Sublease, subject however to the provisions of
Paragraph 8.2 hereof.
8.2 Master Lessor, by executing this document, agrees that until a
Default shall occur in the performance of Sublessor's Obligations under the
Master Lease, that Sublessor may receive, collect and enjoy the Rent accruing
under this Sublease. However, if Sublessor shall Default in the performance
of its obligations to Master Lessor then Master Lessor may, at its option,
receive, and collect directly from Sublessee, all Rent owing and to be owed
under this Sublease. Master Lessor shall not, by reason of this assignment of
the Sublease nor by reason of the collection of the Rent from the Sublessee,
be deemed liable to Sublessee for any failure of the Sublessor to
perform and comply with Sublessor's Remaining Obligations.
8.3 Sublessor hereby irrevocably authorizes and directs Sublessee
upon receipt of any written notice from the Master Lessor stating that a
Default exists in the performance of Sublessor's obligations under the Master
Lease, to pay to Master lessor the Rent due and to become due under the
Sublease. Sublessor agrees that Sublessee shall have the right to rely upon
any such statement and request from Master Lessor, and that Sublessee shall
pay such Rent to Master Lessor without any obligation or right to inquire as
to whether such Default exists and notwithstanding any notice from or claim
from Sublessor to the contrary and Sublessor shall have no right or claim
against Sublessee for any such Rent so paid by Sublessee.
8.4 No changes or modifications shall be made to this Sublease
without the consent or Master Lessor.
9. CONSENT OF MASTER LESSOR.
9.1 In the event that the Master Lease requires that Sublessor
obtain the consent of Master Lessor to any subletting by Sublessor then,
this Sublease shall not be effective unless, within ten days of the date
hereof, Master Lessor signs this Sublease thereby giving its consent to this
Subletting.
9.2 In the event that the obligations of the Sublessor under the
Master Lease have been guaranteed by third parties then neither this Sublease
nor the Master Lessor's consent shall be effective unless, within 10 days of
the date hereof, said guarantors sign this Sublease thereby giving their
consent to this Sublease.
9.3 In the event that Master Lessor does give such consent then:
(a) Such consent shall not release Sublessor of its
obligations or alter the primary liability of Sublessor to pay the Rent and
perform and comply with all of the obligations of Sublessor to be performed
under the Master Lease.
(b) The acceptance of Rent by Master Lessor from Sublessee or
anyone else liable under the Master Lease shall not be deemed a waiver by
Master Lessor or any provisions of the Master Lease.
(c) The consent to this Sublease shall not constitute a consent
to any subsequent subletting or assignment.
(d) In the event of any Default of Sublessor under the Master
Lease, Master Lessor may proceed directly against Sublessor, any guarantors
or anyone else liable under the Master Lease or this Sublease without first
exhausting Master Lessor's remedies against any other person or entity liable
thereon to Master Lessor.
(e) Master Lessor may consent to subsequent sublettings and
assignments of the Master Lease or this Sublease or any amendments or
modifications thereto without notifying Sublessor or any one else liable
under the Master Lease and without obtaining their consent and such action
shall not relieve such persons from liability.
(f) In the event that Sublessor shall Default in its
obligations under the Master Lease, then Master Lessor, at its option and
without being obligated to do so, may require Sublessee to attorn to
Master Lessor in which event Master Lessor shall undertake the obligations of
Sublessor under this Sublease from the time of the exercise of said option to
termination of this Sublease but Master Lessor shall not be liable for any
prepaid Rent nor any Security Deposit paid by Sublessee, nor shall Master
Lessor be liable for any other Defaults of the Sublessor under the Sublease.
9.4 The signatures of the Master Lessor and any Guarantors of
Sublessor at the end of this document shall constitute their consent to the
terms of this Sublease.
9.5 Master Lessor acknowledges that, to the best of Master Lessor's
knowledge, no Default presently exists under the Master Lease of obligations
to be performed by Sublessor and that the Master Lease is in full force and
effect.
9.6 In the event that Sublessor Defaults under its obligations to
be performed under the Master Lease by Sublessor, Master Lessor agrees to
deliver to Sublessee a copy of any such notice of default. Sublessee shall
have the right to cure any Default of Sublessor described in any notice of
default within ten days after service of such notice of default on Sublessee.
If such Default is cured by Sublessee then Sublessee shall have the right of
reimbursement and offset from and against Sublessor.
10. BROKERS FEE.
10.1 Upon execution hereof by all parties, Sublessor shall pay to
Cornish & Carey Commercial a licensed real estate broker, ("Broker"), a fee
as set forth in a separate agreement between Sublessor and Broker for
brokerage services rendered by Broker to Sublessor in this transaction.
10.2 Sublessor agrees that if Sublessee exercises any option or
right of first refusal as granted by Sublessor herein, or any option or right
substantially similar thereto, either to extend the term of this Sublease, to
renew the Sublease, to purchase the Premises, or to lease or purchase
adjacent property which Sublessor may own or in which Sublessor has an
interest, then Sublessor shall pay to Broker a fee in accordance with the
schedule of Broker in effect at the time of the execution of this Sublease.
Notwithstanding the foregoing, Sublessor's obligation under this Paragraph
10.2 is limited to a transaction in which Sublessor is acting as a Sublessor,
lessor or seller.
10.3 Intentionally omitted
10.4 Any fee due from Sublessor hereunder shall be due and payable
upon the exercise of any option to extend or renew, upon the execution of any
new lease.
10.5 Any transferee of Sublessor's interest in this Sublease, by
accepting an assignment thereof, shall be deemed to have assumed the
respective obligations of Sublessor under this Paragraph 10. Broker shall be
deemed to be a third-party beneficiary of this paragraph 10.
11. ATTORNEY'S FEES. If any party or the Broker named herein brings an
action to enforce the terms hereof or to declare rights hereunder, the
prevailing party in any such action, on trial and appeal, shall be entitled
to his reasonable attorney's fees to be paid by the losing party as fixed by
the Court.
12. ADDITIONAL PROVISIONS. (If there are no additional provisions, draw
a line from this point to the next printed word after the space left here. If
there are additional provisions place the same here.)
13. OPERATING EXPENSES. This Sublease is a net net net Sublease where
Sublessee shall reimburse Sublessor for their pro-rata share of all building
operating expenses associates with the Premises. Such expenses include but
are not limited to: Real estate taxes, building insurance, common area
maintenance, landscaping, utilities and heating and air conditioning
maintenance.
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ATTENTION: NO REPRESENTATION OR RECOMMENDATION IS MADE BY THE AMERICAN
INDUSTRIAL REAL ESTATE ASSOCIATION OR BY ANY REAL ESTATE BROKER AS TO THE
LEGAL SUFFICIENCY, LEGAL EFFECT, OR TAX CONSEQUENCES OF THIS SUBLEASE OR THE
TRANSACTION TO WHICH IT RELATES. THE PARTIES ARE URGED TO:
1. SEEK ADVICE OF COUNSEL AS TO THE LEGAL AND TAX CONSEQUENCES OF THIS
SUBLEASE.
2. RETAIN APPROPRIATE CONSULTANTS TO REVIEW AND INVESTIGATE THE CONDITION OF
THE PREMISES. SAID INVESTIGATION SHOULD INCLUDE BUT NOT BE LIMITED TO: THE
POSSIBLE PRESENCE OF HAZARDOUS SUBSTANCES, THE ZONING OF THE PROPERTY, THE
STRUCTURAL INTEGRITY, THE CONDITION OF THE ROOF AND OPERATING SYSTEMS, AND
THE SUITABILITY OF THE PREMISES FOR SUBLESSEE'S INTENDED USE.
WARNING: IF THE SUBJECT PROPERTY IS LOCATED IN A STATE OTHER THAN
CALIFORNIA, CERTAIN PROVISIONS OF THE SUBLEASE MAY NEED TO BE REVISED TO
COMPLY WITH THE LAWS OF THE STATE IN WHICH THE PROPERTY IS LOCATED.
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Executed at:___________________ Ciphergen Biosystems, Inc.
on:____________________________ ----------------------------------------
Address:_______________________ By /s/ William E. Rich
_______________________________ -------------------------------------
By David DeNola, Vice President Operations
"Sublessor" (Corporate Seal)
Executed at:___________________ BigBand Networks, Inc.
on:____________________________ ----------------------------------------
Address:_______________________ By /s/ Amir Bassan-Eskenazi
_______________________________ -------------------------------------
By Amir Bassan-Eskenazi, President & CEO
"Sublessee" (Corporate Seal)
Executed at:___________________ John Arrillaga Survivor's Trust & Richard
on:____________________________ -----------------------------------------
Address:_______________________ T. Peery Separate Property Trust
By_______________________________________
By_______________________________________
"Master Lessor" (Corporate Seal)
NOTE: These forms are often modified to meet changing requirements of Law
and needs of the industry. Always write or call to make sure you are
utilizing the most current form: AMERICAN INDUSTRIAL REAL ESTATE
ASSOCIATION, 700 South Flower St., Suite 600, Los Angeles, CA 90017.
(213) 687-8777
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