Real Estate Matters Agreement - Adaptec Inc. and Roxio Inc.
REAL ESTATE MATTERS AGREEMENT
BETWEEN
ADAPTEC, INC.
AND
ROXIO, INC.
NOVEMBER __, 2000
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TABLE OF CONTENTS
PAGE
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ARTICLE I PROPERTY.................................................................1
Section 1.1 Leased Property................................................1
Section 1.2 Shared Properties..............................................1
Section 1.3 Building 5.....................................................2
Section 1.4 Obtaining the Lease Consents...................................2
Section 1.5 Occupation by Roxio............................................3
Section 1.6 Obligation to Complete.........................................4
Section 1.7 Form of Transfer...............................................5
Section 1.8 Casualty; Lease Termination....................................6
Section 1.9 Tenant's Fixtures and Fittings.................................6
Section 1.10 Adjustments....................................................6
Section 1.11 Costs..........................................................6
ARTICLE II MISCELLANEOUS...........................................................6
Section 2.1 Limitation of Liability........................................6
Section 2.2 Entire Agreement...............................................7
Section 2.3 Governing Law..................................................7
Section 2.4 Termination....................................................7
Section 2.5 Notices........................................................7
Section 2.6 Counterparts...................................................7
Section 2.7 Binding Effect; Assignment.....................................7
Section 2.8 Severability...................................................8
Section 2.9 Failure or Indulgence Not Waiver; Remedies Cumulative..........8
Section 2.10 Amendment......................................................8
Section 2.11 Authority......................................................8
Section 2.12 Interpretation.................................................8
Section 2.13 Disputes.......................................................8
ARTICLE III DEFINITIONS............................................................9
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REAL ESTATE MATTERS AGREEMENT
This Real Estate Matters Agreement (this "AGREEMENT") is entered into
on November __, 2000 between Adaptec, Inc., a Delaware corporation ("ADAPTEC"),
and Roxio, Inc., a Delaware corporation ("ROXIO"). Capitalized terms used herein
and not otherwise defined herein shall have the meanings ascribed to such terms
in the Separation Agreement (as defined below).
RECITALS
WHEREAS, Adaptec has transferred or will transfer to Roxio effective as
of the Separation Date, substantially all of the business and assets of the
Roxio Business owned by Adaptec in accordance with the Master Separation and
Distribution Agreement dated as of September __, 2000 between Adaptec and Roxio
(the "SEPARATION AGREEMENT").
WHEREAS, the parties desire to set forth certain agreements regarding
real estate matters.
NOW, THEREFORE, in consideration of the foregoing and the covenants and
agreements set forth below, the parties hereto agree as follows:
ARTICLE I
PROPERTY
SECTION 1.1 LEASED PROPERTY
Adaptec shall assign or cause its applicable Subsidiary to assign, and
Roxio shall accept and assume, or cause its applicable Subsidiary to accept and
assume, Adaptec's or its Subsidiary's interest in the Leased Properties, subject
to the other provisions of this Agreement and (to the extent not inconsistent
with the provisions of this Agreement) the terms of the Separation Agreement and
the other Ancillary Agreements. Such assignment shall be completed on the later
of: (i) the Separation Date; and (ii) the earlier of (A) the fifth (5th)
business day after the relevant Lease Consent has been granted and (B) the date
agreed upon by the parties in accordance with Section 1.6(a) below.
SECTION 1.2 SHARED PROPERTIES
Adaptec shall grant or cause its applicable Subsidiary to grant to
Roxio or its applicable Subsidiary a license to occupy those parts of the Shared
Properties identified in Section B of Schedule 1 of this Agreement currently
occupied by Roxio or its applicable Subsidiary and Roxio shall accept or cause
its applicable Subsidiary to accept the same, subject to the other provisions of
this Agreement and (to the extent not inconsistent with the provisions of this
Agreement) the terms of the Separation Agreement and the other Ancillary
Agreements. Such license shall be completed on the Separation Date.
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SECTION 1.3 BUILDING 5
Adaptec shall grant to Roxio a lease of those portions of Building 5
identified in Section C of Schedule 1 of this Agreement and Roxio shall accept
the same, subject to the other provisions of this Agreement and (to the extent
not inconsistent with the provisions of this Agreement) the terms of the
Separation Agreement and the other Ancillary Agreements. Such lease shall be
completed on the Separation Date.
SECTION 1.4 OBTAINING THE LEASE CONSENTS
(a) Adaptec confirms that, with respect to each Leased Property, an
application has been made or will be made by the Separation Date to the relevant
Landlord for the Lease Consents required with respect to the transactions
contemplated by this Agreement.
(b) Adaptec will use its reasonable commercial efforts to obtain the
Lease Consents as to each Leased Property, but Adaptec shall not be required to
commence judicial proceedings for a declaration that a Lease Consent has been
unreasonably withheld or delayed, nor shall Adaptec be required to pay any
consideration in excess of that required by the Relevant Lease or that which is
typical in the open market to obtain the relevant Lease Consent. Roxio shall
cooperate as reasonably requested by Adaptec to obtain the Lease Consents.
(c) Roxio and Adaptec will promptly satisfy or cause their applicable
Subsidiaries to satisfy the lawful requirements of the Landlord, and Roxio will
take or cause its applicable Subsidiary to take all steps to assist Adaptec in
obtaining the Lease Consents as to each Leased Property, including, without
limitation:
(i) if properly required by the Landlord, entering into an
agreement with the relevant Landlord to observe and perform the tenant's
obligations contained in the Relevant Lease throughout the remainder of the term
of the Relevant Lease, subject to any statutory limitations of such liability;
(ii) if properly required by the Landlord, providing a
guarantee, surety or other security (including, without limitation, a security
deposit) for the obligations of Roxio or its applicable Subsidiary as tenant
under the Relevant Lease, and otherwise taking all steps which are reasonably
necessary and which Roxio or its applicable Subsidiary is reasonably capable of
doing to meet the lawful requirements of the Landlord so as to ensure that the
Lease Consents are obtained; and
(iii) using all reasonable commercial efforts to assist
Adaptec with obtaining the Landlord's consent to the release of any guarantee,
surety or other security which Adaptec or its Subsidiary may have previously
provided to the Landlord and, if required, offering the same or equivalent
security to the Landlord in order to obtain such release.
Notwithstanding the foregoing, (1) except with respect to guarantees, sureties
or other security
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referenced in Section 1.4(c)(ii) above, Roxio shall not be required to obtain a
release of any obligation entered into by Adaptec or its Subsidiary with any
Landlord or other third party with respect to any Property and (2) Roxio shall
not communicate or permit its applicable Subsidiary to communicate directly with
any of the Landlords unless Roxio can show Adaptec reasonable grounds for doing
so.
(d) If, with respect to any Leased Properties, Adaptec and Roxio are
unable to obtain a release by the Landlord of any guarantee, surety or other
security which Adaptec or its Subsidiary has previously provided to the
Landlord, Roxio shall indemnify, defend, protect and hold harmless Adaptec and
its Subsidiary from and after the Separation Date against all losses, costs,
claims, damages, or liabilities incurred by Adaptec or its Subsidiary as a
result of Roxio's occupancy of the Leased Property with respect to such
guarantee, surety or other security.
SECTION 1.5 OCCUPATION BY ROXIO
(a) Subject to compliance with Section 1.5(b) below, in the event that
the Actual Completion Date for any Leased Property does not occur on the
Separation Date, Roxio or its applicable Subsidiary shall, commencing on the
Separation Date, be entitled to occupy the relevant Property as a licensee upon
the terms and conditions contained in Adaptec's Lease. Such license shall not be
revocable prior to the date for completion as provided in Section 1.1(a) unless
an enforcement action or forfeiture by the relevant Landlord due to Roxio or its
applicable Subsidiary's occupation of the Property constituting a breach of
Adaptec's Lease cannot, in the reasonable opinion of Adaptec, be avoided other
than by requiring Roxio or its applicable Subsidiary to immediately vacate the
relevant Property, in which case Adaptec may by notice to Roxio immediately
require Roxio or its applicable Subsidiary to vacate the relevant Property.
Roxio will be responsible for all costs, expenses and liabilities incurred by
Adaptec or its applicable Subsidiary as a consequence of such occupation, except
for any losses, claims, costs, demands and liabilities incurred by Adaptec or
its Subsidiary as a result of any enforcement action taken by the Landlord
against Adaptec or its Subsidiary with respect to any breach by Adaptec or its
Subsidiary of the Relevant Lease in permitting Roxio or its applicable
Subsidiary to so occupy the Property without obtaining the required Lease
Consent, for which Adaptec or its Subsidiary shall be solely responsible.
Neither Roxio nor its applicable Subsidiary shall be entitled to make any claim
or demand against, or obtain reimbursement from, Adaptec or its applicable
Subsidiary with respect to any costs, losses, claims, liabilities or damages
incurred by Roxio or its applicable Subsidiary as a consequence of being obliged
to vacate the Property or in obtaining alternative premises, including, without
limitation, any enforcement action which a Landlord may take against Roxio or
its applicable Subsidiary.
(b) In the event that the Actual Completion Date for any Leased
Property does not occur on the Separation Date, whether or not Roxio or its
applicable Subsidiary occupies a Property as licensee as provided in Section
1.5(a) above, Roxio shall, effective as of the Separation Date, (i) pay or cause
its applicable Subsidiary to pay Adaptec all rents, service charges, insurance
premiums and other sums payable by Adaptec or its applicable Subsidiary under
any Relevant Lease, (ii) observe or cause its applicable Subsidiary to observe
the tenant's covenants, obligations and conditions contained in Adaptec's Lease
and (iii) indemnify, defend, protect and hold harmless Adaptec and its
applicable Subsidiary from and against all losses, costs, claims, damages and
liabilities arising on account of any breach thereof by Roxio or its applicable
Subsidiary.
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(c) Adaptec shall supply promptly to Roxio copies of all invoices,
demands, notices and other communications received by Adaptec or its applicable
Subsidiaries or agents in connection with any of the matters for which Roxio or
its applicable Subsidiary may be liable to make any payment or perform any
obligation pursuant to Section 1.5(a) or (b), and shall, at Roxio's cost, take
any steps and pass on any objections which Roxio or its applicable Subsidiary
may have in connection with any such matters. Roxio shall promptly supply to
Adaptec any notices, demands, invoices and other communications received by
Roxio or its applicable Subsidiary or agents from any Landlord while Roxio or
its applicable Subsidiary occupies any Property without the relevant Lease
Consent.
SECTION 1.6 OBLIGATION TO COMPLETE
(a) If, with respect to any Leased Property, at any time the relevant
Lease Consent is formally and unconditionally refused in writing, Adaptec and
Roxio shall commence good faith negotiations and use commercially reasonable
efforts to determine how to allocate the applicable Property, based on the
relative importance of the applicable Property to the operations of each party,
the size of the applicable Property, the number of employees of each party at
the applicable Property and the potential risk and liability to each party in
the event an enforcement action is brought by the applicable Landlord. Such
commercially reasonable efforts shall include consideration of alternate
structures to accommodate the needs of both parties and the allocation of the
costs thereof, including entering into amendments of the size, term or other
terms of the Relevant Lease, restructuring a proposed lease assignment to be a
sublease and relocating one party. If the parties are unable to agree upon an
allocation of the Property within fifteen (15) days after commencement of
negotiations between the parties as described above, then either party may, by
delivering written notice to the other, require that the matter be referred to
the Chief Financial Officers of both parties. In such event, the Chief Financial
Officers shall use commercially reasonable efforts to determine the allocation
of the Property, including having a meeting or telephone conference within ten
(10) days thereafter. If the parties are unable to agree upon the allocation of
an applicable Property within fifteen (15) days after the matter is referred to
the Chief Financial Officers of the parties as described above, the disposition
of the applicable Property and the risks associated therewith shall be allocated
between the parties as set forth in subparts (b) and (c) of this section below.
(b) If, with respect to any Leased Property, the parties are unable to
agree upon the allocation of a Property as set forth in Section 1.6(a), Adaptec
may by written notice to Roxio elect to apply to the relevant Landlord for
consent to sublease all of the relevant Property to Roxio or its applicable
Subsidiary for the remainder of the Relevant Lease term less three (3) days at a
rent equal to the rent from time to time under the Relevant Lease, but otherwise
on substantially the same terms and conditions as the Relevant Lease. If Adaptec
makes such an election, until such time as the relevant Lease Consent is
obtained and a sublease is completed, the provisions of Section 1.5 will apply
and, on the grant of the Lease Consent required to sublease the Leased Property
in question, Adaptec shall sublease or cause its applicable Subsidiary to
sublease to Roxio or its applicable Subsidiary the relevant Property which
sublease shall be for the term and rent set forth in the Relevant Lease and
otherwise on the terms of the Relevant Lease.
(c) If the parties are unable to agree upon the allocation of a
Property as set forth in Section 1.6(a) and Adaptec does not make an election
pursuant to Section 1.6(b) above, Adaptec may elect
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by written notice to Roxio to require Roxio or its applicable Subsidiary to
vacate the relevant Property immediately or by such other date as may be
specified in the notice served by Adaptec (the "NOTICE DATE"), in which case
Roxio shall vacate or cause its applicable Subsidiary to vacate the relevant
Property on the Notice Date but shall indemnify Adaptec and its applicable
Subsidiary from and against all costs, claims, losses, liabilities and damages
in relation to the relevant Property arising from and including the Separation
Date to and including the later of the Notice Date and date on which Roxio or
its applicable Subsidiary vacates the relevant Property, except for any costs,
losses, damages, claims and liabilities incurred by Adaptec or its Subsidiary
with respect to any enforcement action taken by the Landlord against Adaptec or
its Subsidiary with respect to any breach by Adaptec or its Subsidiary of the
Relevant Lease in permitting Roxio or its applicable Subsidiary to so occupy the
Property without obtaining the required Lease Consent. Neither Roxio nor its
applicable Subsidiary shall be entitled to make any claim or demand against or
obtain reimbursement from Adaptec or its applicable Subsidiary with respect to
any costs, losses, claims, liabilities or damages incurred by Roxio or its
applicable Subsidiary as a consequence of being obliged to vacate the Property
or obtaining alternative premises, including, without limitation, any
enforcement action which a Landlord may take against Roxio or its applicable
Subsidiary.
SECTION 1.7 FORM OF TRANSFER
(a) The assignment to Roxio or its applicable Subsidiary of each
relevant Leased Property shall be in substantially the form attached in Schedule
2, with such amendments which in the reasonable opinion of Adaptec are necessary
with respect to a particular Property, including, without limitation, in all
cases where a relevant Landlord has required a guarantor or surety to guarantee
the obligations of Roxio or its applicable Subsidiary contained in the relevant
Lease Consent or any other document which Roxio or its applicable Subsidiary is
required to complete, the giving of such guarantee by a guarantor or surety, and
the giving by Roxio or its applicable Subsidiary and any guarantor or surety of
Roxio or its applicable Subsidiary's obligations of direct obligations to
Adaptec or third parties where required under the terms of any of the Lease
Consent or any covenant, condition, restriction, easement, lease or other
encumbrance to which the Property is subject. Such amendments shall be submitted
to Roxio for approval, which approval shall not be unreasonably withheld or
delayed.
(b) The licenses to be granted by Adaptec or its applicable Subsidiary
to Roxio or its applicable Subsidiary, with respect to the Shared Properties
shall be at the rental rates and terms set forth in Section B of Schedule 1
hereof. The license shall be substantially in the form of the License Form, with
such amendments as are, in the reasonable opinion of Adaptec, necessary with
respect to a particular Property. Such amendments shall be submitted to Roxio
for approval, which approval shall not be unreasonably withheld.
(c) The lease to be granted to Roxio with respect to Building 5 shall
be at a monthly rental rate per rentable square foot, full service gross, of (i)
$2.61 for the first year of the term, (ii) $2.69 for the second year of the
term, (iii) $2.77 for the third year of the term, (iv) $2.85 for the fourth year
of the term and (v) $2.93 for the fifth year of the term, and be for a five (5)
year term commencing on the Separation Date. The lease shall commence as to the
various portions of Building 5 in accordance with the schedule set forth in
Section C of Schedule 1 hereof. Such lease shall be substantially in the form of
the lease form attached hereto as Schedule 4 and shall include such
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amendments which in the reasonable opinion of Adaptec are necessary with respect
to a particular Property. Such amendments shall be submitted to Roxio for
approval, which approval shall not be unreasonably withheld or delayed.
SECTION 1.8 CASUALTY; LEASE TERMINATION
The parties hereto shall grant and accept assignments, leases or
licenses of the Properties as described in this Agreement, regardless of any
casualty damage or other change in the condition of the Properties. In addition,
subject to Adaptec's obligations in Section 5.5 of the Separation Agreement, in
the event that Adaptec's Lease with respect to a Leased Property or a Shared
Property is terminated prior to the Separation Date, (a) Adaptec or its
applicable Subsidiary shall not be required to assign or license such Property,
(b) Roxio or its applicable Subsidiary shall not be required to accept an
assignment or license of such Property and (c) neither party shall have any
further liability with respect to such Property hereunder.
SECTION 1.9 TENANT'S FIXTURES AND FITTINGS
The provisions of the Separation Agreement and the other Ancillary
Agreements shall apply to any trade fixtures and personal property located at
each Property. The licenses as to the Shared Properties shall include the
rental of the furniture at such Properties.
SECTION 1.10 ADJUSTMENTS
Adaptec and Roxio each acknowledge and agree that Additional Properties
may be acquired by Adaptec prior to the Separation Date. Such Additional
Properties shall be treated hereunder as Leased Properties or Shared Properties
by mutual agreement of the parties based on whether the Additional Property was
acquired by or for the Roxio Business or Adaptec's other businesses. In the
event that the parties are unable to agree by the Separation Date as to how any
Additional Property is to be treated, the matter shall be determined in
accordance with the procedure set forth in Section 1.6(a) above. Following
agreement or determination with respect to the Additional Properties, the
parties shall enter into and complete all such documents as may be required to
give effect to such agreement or determination as provided herein.
SECTION 1.11 COSTS
Adaptec shall pay all reasonable costs and expenses incurred in
connection with obtaining the Lease Consents, including, without limitation,
Landlord's consent fees and attorneys' fees and any costs and expenses relating
to re-negotiation of Adaptec's Leases.
ARTICLE II
MISCELLANEOUS
SECTION 2.1 LIMITATION OF LIABILITY. IN NO EVENT SHALL ANY MEMBER OF
THE ADAPTEC GROUP OR ROXIO GROUP BE LIABLE TO ANY OTHER MEMBER OF THE ADAPTEC
GROUP OR ROXIO GROUP FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT,
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INCIDENTAL OR PUNITIVE DAMAGES OR LOST PROFITS, HOWEVER CAUSED AND ON ANY THEORY
OF LIABILITY (INCLUDING NEGLIGENCE) ARISING IN ANY WAY OUT OF THIS AGREEMENT,
WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES;
PROVIDED, HOWEVER, THAT THE FOREGOING LIMITATIONS SHALL NOT LIMIT EACH PARTY'S
INDEMNIFICATION OBLIGATIONS FOR LIABILITIES TO THIRD PARTIES AS SET FORTH IN THE
INDEMNIFICATION AND INSURANCE MATTERS AGREEMENT.
SECTION 2.2 ENTIRE AGREEMENT. This Agreement, the Separation Agreement,
the other Ancillary Agreements and the Exhibits and Schedules referenced or
attached hereto and thereto, constitute the entire agreement between the parties
with respect to the subject matter hereof and shall supersede all prior written
and oral and all contemporaneous oral agreements and understandings with respect
to the subject matter hereof.
SECTION 2.3 GOVERNING LAW. This Agreement shall be governed and
construed and enforced in accordance with the laws of the State of California as
to all matters regardless of the laws that might otherwise govern under the
principles of conflicts of laws applicable thereto.
SECTION 2.4 TERMINATION. This Agreement, the Separation Agreement and
all Ancillary Agreements may be terminated and the Distribution abandoned at any
time prior to the IPO Closing Date by and in the sole discretion of Adaptec
without the approval of Roxio. This Agreement may be terminated at any time
after the IPO Closing Date and before the Distribution Date by mutual consent of
Adaptec and Roxio. In the event of termination pursuant to this Section, no
party shall have any liability of any kind to the other party.
SECTION 2.5 NOTICES. Any notice, demand, offer, request or other
communication required or permitted to be given by either party pursuant to the
terms of this Agreement shall be in writing and shall be deemed effectively
given the earlier of (i) when received, (ii) when delivered personally, (iii)
one (1) business day after being delivered by facsimile (with receipt of
appropriate confirmation), (iv) one (1) business day after being deposited with
an overnight courier service or (v) four (4) days after being deposited in the
U.S. mail, First Class with postage prepaid, and addressed to the attention of,
in the case of Adaptec, General Counsel or, in the case of Roxio, its Chief
Executive Officer, at the address of its principal executive office or such
other address as a party may request by notifying the other in writing.
SECTION 2.6 COUNTERPARTS. This Agreement, including the Schedules and
Exhibits hereto, and the other documents referred to herein, may be executed in
counterparts, each of which shall be deemed to be an original but all of which
shall constitute one and the same agreement.
SECTION 2.7 BINDING EFFECT; ASSIGNMENT. This Agreement shall inure to
the benefit of and be binding upon the parties hereto and their respective legal
representatives and successors, and nothing in this Agreement, express or
implied, is intended to confer upon any other Person any rights or remedies of
any nature whatsoever under or by reason of this Agreement. This Agreement may
not be assigned by any party hereto. This Agreement may be enforced separately
by each member of the Adaptec Group and each member of the Roxio Group.
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SECTION 2.8 SEVERABILITY. If any term or other provision of this
Agreement or the Schedules or Exhibits attached hereto is determined by a
non-appealable decision by a court, administrative agency or arbitrator to be
invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner materially
adverse to either party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in an acceptable manner to
the end that transactions contemplated hereby are fulfilled to the fullest
extent possible.
SECTION 2.9 FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE. No
failure or delay on the part of either party hereto in the exercise of any right
hereunder shall impair such right or be construed to be a waiver of, or
acquiescence in, any breach of any representation, warranty or agreement herein,
nor shall any single or partial exercise of any such right preclude other or
further exercise thereof or of any other right. All rights and remedies existing
under this Agreement or the Exhibits or Schedules attached hereto are cumulative
to, and not exclusive of, any rights or remedies otherwise available.
SECTION 2.10 AMENDMENT. No change or amendment will be made to this
Agreement except by an instrument in writing signed on behalf of each of the
parties to such agreement.
SECTION 2.11 AUTHORITY. Each of the parties hereto represents to the
other that (a) it has the corporate or other requisite power and authority to
execute, deliver and perform this Agreement, (b) the execution, delivery and
performance of this Agreement by it have been duly authorized by all necessary
corporate or other action, (c) it has duly and validly executed and delivered
this Agreement, and (d) this Agreement is a legal, valid and binding obligation,
enforceable against it in accordance with its terms subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and general equity principles.
SECTION 2.12 INTERPRETATION. The headings contained in this Agreement,
in any Exhibit or Schedule hereto and in the table or contents to this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Any capitalized term used in any Schedule or
Exhibit but not otherwise defined therein, shall have the meaning assigned to
such term in this Agreement. When a reference is made in this Agreement to an
Article or a Section, Exhibit or Schedule, such reference shall be to an Article
or Section of, or an Exhibit or Schedule to, this Agreement unless otherwise
indicated.
SECTION 2.13 DISPUTES. Any Disputes that arise under this Agreement
shall be resolved in accordance with the provisions of Section 5.7 of the
Separation Agreement.
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ARTICLE III
DEFINITIONS
The following terms, as used herein, shall have the following meanings:
ACTUAL COMPLETION DATE means, with respect to each Property, the date upon which
completion of the assignment or lease of that Property actually takes place.
ADAPTEC'S LEASE means, in relation to each Property, the lease(s) or sublease(s)
or license(s) under which Adaptec or its applicable Subsidiary holds such
Property and any other supplemental document completed prior to the Actual
Completion Date.
ADDITIONAL PROPERTIES means any leased properties acquired by Adaptec after the
date of the Separation Agreement and before the Separation Date.
BUILDING 5 means that certain building located on Adaptec's campus at Milpitas,
California, known as Building 5, with a street address of 461 South Milpitas
Boulevard, Milpitas, California, as set forth in Section C of Schedule 1 of this
Agreement.
LANDLORD means the landlord under Adaptec's Lease, and its successors and
assigns, and includes the holder of any other interest which is superior to the
interest of the landlord under Adaptec's Lease.
LEASE CONSENTS means all consents, waivers or amendments required from the
Landlord or other third parties under the Relevant Leases to assign the Relevant
Leases to Roxio or its applicable Subsidiary.
LEASED PROPERTIES means those Properties in Section A of Schedule 1 of this
Agreement.
LICENSE FORM means the form license attached hereto as Schedule 3.
PROPERTY means the Leased Properties, the Shared Properties and Building 5.
RELEVANT LEASES means those of Adaptec's Leases with respect to which the
Landlord's consent is required for assignment or sublease to a third party or
which prohibit assignments or subleases.
SHARED PROPERTIES means those Properties listed in Section B of Schedule 1 of
this Agreement.
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IN WITNESS WHEREOF, each of the parties has caused this Real Estate
Matters Agreement to be executed on its behalf by its officers thereunto duly
authorized on the day and year first above written.
ADAPTEC, INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
ROXIO, INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
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SCHEDULE 1
Properties
Section A: Leased Properties
ADDRESS
Bethany Village Education Centre
15188 NW Central Drive
Suite 205
Portland, OR
[Wedgwood Commerce Center
6900 Wedgwood Road
Maple Grove, MN]
Section B: Shared Properties
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<CAPTION>
<S><C>
Location Address Current Cost Per Current License
ROXIO HC Person Per Monthly Cost Expiration Date
Month
(based on
number of
reserved
spaces,
adjusted
quarterly)
1 year, subject
Longmont, CO 1951 South Fordham Street $900 to termination
Longmont, Colorado by either party
on 3 month's
notice given
after the 4th
month of the term
10 days after
Milpitas, CA Buildings on Adaptec's campus $783 commencement of
(other than Building 5) the lease of the
691 South Milpitas Boulevard second installment
Milpitas, California of Building 5
to be delivered
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<TABLE>
<CAPTION>
Section C: Building 5
<S> <C> <C>
Address Estimated Commencement Date Estimated Square
Footage
461 South Milpitas Boulevard, Separation Date 27,899 square feet
Milpitas, California
Between January 1, 2001 and 29,053 square feet
March 31, 2001
Adaptec's discretion 2,214 square feet
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Schedule 2
Form Assignment for Leased Properties
ASSIGNMENT OF LEASE
THIS ASSIGNMENT OF LEASE (this "Assignment") is dated for reference
purposes as of ____________, 2000 and is made between [Adaptec, Inc., a Delaware
corporation] ("Assignor") and [Roxio, Inc., a Delaware corporation]
("Assignee").
RECITALS
This Assignment is made with reference to the following facts and with
the following intentions:
A. __________, as landlord ("Landlord"), and [Assignor], as
tenant, entered into that certain lease dated as of _______________ (the
"Lease"), whereby Landlord leased to Assignor certain premises located at
________________________________________ (the "Premises").
B. Assignor wishes to assign all of its right, title and interest
under the Lease to Assignee, and Assignee wishes to accept such assignment.
1. ASSIGNMENT: For good and valuable consideration, receipt of
which is hereby acknowledged, Assignor hereby assigns, transfers and conveys to
Assignee, and Assignee hereby accepts such assignment and assumes all of
Assignor's obligations and rights in, under and to the Lease and the Premises.
2. EFFECTIVE DATE: This Assignment shall be effective on
__________, 200_.
3. MISCELLANEOUS: Assignor shall, at any time and from time to
time, execute such additional documents and take such additional actions as
Assignee or its successors or assigns may reasonably request to carry out the
purposes of this Assignment. This Assignment shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns.
If either party brings any action or legal proceeding with respect to this
Assignment, the prevailing party in such action shall be entitled to recover its
reasonable attorneys' fees and costs. If any one or more of the provisions
contained in this Assignment shall be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein shall not in any way be affected or impaired thereby. This
Assignment may be executed in one or more counterparts, each of which shall be
an original, but all of which, taken together, shall constitute one and the same
Assignment. This Assignment is subject to the exclusions set forth in Section
1.3(b)(i)-(iv) of the General Assignment and Assumption Agreement dated as of
_________, 200_ and the indemnifications and releases of the Indemnification and
Insurance Matters Agreement dated as of ____________, 200_, each between
[Assignor] and [Assignee].
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IN WITNESS WHEREOF, the parties hereto have executed this Assignment intending
it to be effective as of the Effective Date.
ASSIGNOR: ASSIGNEE:
[ADAPTEC, INC., [ROXIO, INC.,
a Delaware corporation] a Delaware corporation]
By: By:
------------------------------ -----------------------------
Its: Its:
----------------------------- ----------------------------
Date: Date:
---------------------------- ---------------------------
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SCHEDULE 3
Form License for Shared Properties
5
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SCHEDULE 4
Form Lease for Building 5
6