California-San Jose-2001 Logic Drive Sublease - Quantum Corp. and Xilinx Inc.
SUBLEASE AGREEMENT
BETWEEN
QUANTUM CORPORATION
SUBTENANT
AND
XILINX, INC.
SUBLANDLORD
2001 LOGIC DRIVE, SAN JOSE, CALIFORNIA
OCTOBER 8, 1999
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BASIC SUBLEASE INFORMATION
This Basic Sublease information is provided solely as a convenience to
summarize certain Sublease provisions and is not intended as a complete summary
of all material terms and conditions of the Sublease. In the event of any
inconsistency between any information shown in this Basic Sublease Information
and the provisions of the Sublease, the provisions of the Sublease shall govern.
Sublandlord Address Xilinx, Inc.
2100 Logic Drive
San Jose, CA 95124
Subtenant Address: Quantum Corporation
500 McCarthy Blvd.
Milpitas, CA 95035
Master Landlord Mission West Properties, L.P.
10050 Bandley Drive
Cupertino, CA 95014
Attn: Carl E. Berg
Permitted Use: office, administration, marketing, assembly, research
and development, shipping, receiving and all other
legally allowable related uses
Net Rentable Area
of Sublease Premises: Initial Sublease Premises shall be 48,185 rentable
square feet ("r.s.f.")
Net Rentable Areas
of Building: 72,426 r.s.f.
Mandatory Expansions: 10,000 additional r.s.f. on 1st day of 13th month
(subject to increase at Subtenant's option)
10,000 additional r.s.f. on 1st day of 25th month
(subject to increase at Subtenant's option)
4,241 additional r.s.f. on 1st day of 37th month
(or remaining r.s.f. in Building, if less)
Sublease Premises: 2001 Logic Drive, San Jose, California 95124
Term: Sixty (60) months
Commencement Date: October 1, 1999
Expiration Date: September 30, 2004
Monthly Base Rent: $2.30 per rentable square foot per month
Security Deposit: None
Right of First Offer
to Extend: Per Section 35
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Table of Contents
<CAPTION>
Article Title Page
1. Parties 1
2 Sublease Premises 1
3 Use 3
4 Term and Rental 3
5 Mandatory Expansions 4
6 Sublandlord's Work and Tenant Improvements 4
7 Acceptance of Possession and Covenants to Surrender 6
8 Uses Prohibited 6
9 Alterations and Additions 6
10 Maintenance of Sublease Premises 7
11 Insurance 9
12 Taxes 11
13 Utilities and Services 11
14 Free from Liens 12
15 Warranty Regarding Office Use 12
16 Compliance with Governmental Regulations 12
17 Environmental Matters 12
18 Indemnity 14
19 Advertising and Signs 15
20 Attorney's Fees 15
21 Subtenant Default 16
22 Surrender of Sublease 17
23 Sublandlord's Default 17
24 Notices 18
25 Entry by Sublandlord 18
26 Destruction of Sublease Premises 18
27 Assignment or Sublease 19
28 Condemnation 20
29 Effects of Conveyance 21
30 Subordination 21
31 Waiver 22
32 Holding Over 22
33 Successors and Assigns 22
34 Estoppel Certificates 22
35 Right of First Offer to Extend Term 23
36 Quiet Enjoyment 23
37 Brokers 23
38 Parking 24
39 Hours of Operation of Building 24
40 Communications Dishes 24
41 Master Landlord's Consent 24
42 Miscellaneous Provisions 24
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Recitals
A. Sublandlord, as lessee, and Mission West Properties, L.P., a
Delaware limited partnership ("Master Landlord"), as lessor, entered into a
lease for the premises located at 2001 Logic Drive, San Jose, California
("Parcel") on July 31, 1999 ("Master Lease"). A copy of the Master Lease is
attaches hereto as Exhibit "A."
B. Sublandlord desires to sublease to Sublessee and Sublessee
desires to sublease from Sublandlord the Sublease Premises on the terms and
conditions set forth in this Sublease.
1. PARTIES:
THIS SUBLEASE, is entered into effective the 8th day of October,
1999, between Xilinx, Inc., whose address 2100 Logic Drive, San Jose,
California 95124, and Quantum Corporation, a Delaware Corporation, whose
address is 500 McCarthy Boulevard, Milpitas, California, 95035, hereinafter
called respectively Sublandlord and Subtenant.
Sublandlord represents that as of the day of execution of this
Sublease, Sublandlord is a duly organized and validly existing Delaware
corporation authorized to do business in the State of California. Subtenant
represents that as of the date of execution of this Sublease, Subtenant is a
duly organized and validly existing Delaware corporation authorized to do
business in the State of California.
2. SUBLEASE PREMISES: Sublandlord hereby releases to Subtenant, and
Subtenant hires from Sublandlord, those certain premises, situated in the City
of San Jose, County of Santa Clara, located on an approximately 3.1 acre parcel
commonly known as 2001 Logic Drive, San Jose, California ("Parcel"), having a
legal description as set forth on Exhibit "B" ("Sublease Premises").
A. TITLE TO PARCEL: Sublandlord is currently leasing the Parcel
from Master Landlord. In the event Sublandlord purchases the Parcel from Master
Landlord, Sublandlord shall notify Subtenant of the date of purchase.
Sublandlord shall furnish to Subtenant a copy of Sublandlord's Owner's Policy of
Title Insurance ("Owner's Policy") within five (5) business days after Subtenant
has purchased the Parcel. The Owner's Policy shall insure Sublandlord's fee
simple title to the Parcel. As of the date of the Sublandlord's purchase of the
Parcel, this Sublease shall be automatically converted into a direct lease for
the Sublease Premises between Sublandlord, as landlord, and Subtenant, as
tenant, under all of the same terms and conditions as this Sublease other than
the incorporated provisions of the Master Lease, without the need for further
documentation.
B. INCORPORATION OF THE MASTER LEASE. This Sublease is subject to
all of the terms and conditions of the Master Lease and Subtenant is entitled
to all the rights of the tenant under the Master Lease and hereby accepts,
assumes and agrees to perform all of the obligations of Sublandlord as lessee
under the Master Lease to the extent such obligations relate to the Sublease
Premises and to the extent such terms and conditions of the Master Lease are
incorporated herein as terms and conditions of this Sublease (with each
reference to Lessor, Lessee and Premises and be deemed to refer to Sublandlord,
Subtenant and Sublease Premises) expecting only the following sections:
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Term, Rent, Late Charge, Security Deposit, 2, 2.1, 5, 6, 7, 14.1,
14.4, 16, 17, 19, 21, 31, 32, 33, 34, 35, 38, 40 pg. 14, 40, pg. 15
In the event of a conflict or inconsistency between the incorporated
terms of the Master Lease and the terms of the Sublease, the terms of the
Sublease shall prevail to the extent of any such inconsistency.
In the event of the termination for any reason of Sublessor's
interest as Lessee under the Master Lease, this Sublease shall terminate.
Sublessor may be liable to Sublessee for any termination of the Sublease that
results from Sublessor's voluntary termination of the Master Lease or
Sublessor's breach of the Master Lease, so long as such breach is not caused in
whole or in part by Sublessee.
C. SUBLANDLORD'S REPRESENTATIONS.
Sublandlord represents, warrants and covenants to Subtenant as
follows, which representations shall survive the termination of this Sublease:
i. The Master Lease attached to this Sublease as Exhibit "A" is
a true, correct and complete copy of the Master Lease as of the date of this
Sublease; the Master Lease is currently in full force and effect; Sublandlord
shall not make or agree to make any modifications to the Master Lease or elect
to terminate the Master Lease without the written approval of Subtenant.
ii. To the best of Sublandlord's knowledge, as of the date of
this Sublease, there is no default by either Master Landlord or Sublandlord
under the Master Lease, nor does any other fact or circumstance exist as of the
date of this Sublease which would, with the passage of time, lead to such
default; and Sublandlord shall not commit or permit to be committed any act or
omission during the Sublease term (and any extensions thereof) which would lead
to a default of Sublandlord under the Master Lease.
iii. All rent and other amounts due Master Landlord under the
Master Lease have been paid.
iv. Sublandlord shall use all reasonable efforts to cause
Master Landlord to perform its obligations under the Master Lease.
D. SIZE OF SUBLEASE PREMISES. The Sublease Premises shall initially
contain 48,185 rentable square feet constituting the entire second floor and
part of the first floor in a two-story building of approximately 72,426
rentable square feet ("Building"), including Tenant Improvements, with on-grade
parking for a minimum of 4 cars per 1,000 rentable square feet of the Building
("Initial Sublease Premises"). The approximate location of the Initial Sublease
Premises in the Building is shown in red on Exhibit "C." The Building and the
Sublease Premises together constitute the "Project."
The Initial Sublease Premises and the Expansion Areas (as defined below)
are referred to herein collectively as the "Sublease Premises" but each of the
Expansion Areas shall be constituted as the "Sublease Premises" once the
commencement date for each becomes applicable.
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Sublandlord shall not have the right to sue, occupy, sublet or assign its
rights to, any portion of the Expansion Areas during the term of the Sublease.
3. USE: Subtenant shall use the Sublease Premises only for the following
purposes and shall not change the use of the Sublease Premises without the prior
written consent of Sublandlord: office, administration, marketing, assembly,
research and development, shipping, receiving and all other legally allowable
related uses.
4. TERM AND RENTAL:
A. SUBLEASE TERM. The term ("Sublease Term") shall be for sixty
(60) months, commencing on October 1, 1999 ("Commencement Date"). The Sublease
Term shall end sixty (60) months after the Commencement Date ("Expiration
Date").
Subtenant shall, immediately following the Commencement Date for each of
the Initial Sublease Premises, and each of Expansion Areas 1, 2 and 3, execute
and deliver to Sublandlord a document prepared by Sublandlord, confirming each
such Commencement Date.
B. BASE MONTHLY RENT: In addition to all other sums payable by
Subtenant under this Sublease, base monthly rent shall be payable by Subtenant
in monthly installments as follows ("Base Monthly Rent"). Base Monthly Rent
shall be due in advance on or before the first day of each calendar month
thereafter during the Initial Sublease Term. All sums payable by Subtenant under
this Sublease shall be paid in lawful money of the United States of America,
without offset or deduction, (and except as expressly provided elsewhere in this
Sublease, without prior notice or demand), and shall be paid to Sublandlord at
the address specified in Article 1 of this Sublease or at such place or places
as may be designated from time to time by Sublandlord. Base Monthly Rent for any
period which is less than a calendar month shall be a pro rata portion of the
monthly rent installment:
i. Initial Sublease Premises:
During the Sublease Term, Base Monthly Rent shall be $2.30 per
rentable square foot per month.
ii. Expansion Areas:
The Base Monthly Rent for the each of Expansion Areas 1, 2 and 3
shall be $2.30 per rentable square foot per month and shall commence on the
applicable Expansion Area Commencement Date as described in the table in
Section 5.A of this Sublease below.
C. EARLY OCCUPANCY. Subtenant shall have full rights of use and
possession of the Initial Sublease Premises on the date of full execution of
this Sublease by Sublandlord and Subtenant, subject to all the terms and
conditions of this Sublease other than the obligation to pay Base Monthly Rent
and the Common Area Expenses. Subtenant shall have the right to enter the
Initial Sublease Premises after providing Sublandlord with evidence of
insurance (naming Sublandlord as additional insured suitable to Sublandlord in
its discretion) to install Tenant Improvements, cabling, furniture, fixtures
and equipment.
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D. LATE CHARGE. Commencing after the first late payment in any
twelve (12) month period, Subtenant shall pay to Sublandlord an administrative
late fee of five percent (5%) of the amount of any payment due by Subtenant
under this Sublease and not paid within five (5) days after said due date.
5. MANDATORY EXPANSIONS
A. MANDATORY EXPANSIONS. Subtenant shall, on each of the dates
indicated below, Sublease the following additional square footages in the
Building, which square footages may be increased by Subtenant at its option
(collectively, the "Expansion Areas"):
<CAPTION>
ADDITIONAL
EXPANSION RENTABLE SQUARE TOTAL RENTABLE SQUARE
AREA FOOTAGE TO BE FOOTAGE OF SUBLEASE
COMMENCEMENT TAKEN PREMISES AFTER
DATE (MINIMUM) (MINIMUM)
------------ --------------- ---------------------
Expansion Area 1 1st day of the 10,000 58,185
13th month
Expansion Area 2 1st day of the 10,000 68,185
25th month
Expansion Area 3 1st day of the 4,241 72,426
37th month
Subtenant shall have the right to select the location of each of Expansion
Areas 1, 2 and 3 in the Building. Notwithstanding anything set forth herein,
Subtenant shall have the right to select the actual square footages of each of
the Expansion Areas, so long as after the addition of Expansion Area 1,
Subtenant shall occupy a minimum of 58,185 rentable square feet, after the
addition of Expansion Area 2, Subtenant shall occupy a minimum of 68,185
rentable square feet, and after the addition of Expansion Area 3, Subtenant
shall occupy a minimum of 72,426 rentable square feet in the Building.
Subtenant shall be given possession of each of Expansion Areas 1, 2 and 3
on the date sixty (60) days prior to the applicable Expansion Area Commencement
Date described in the table in Section 5.B of this Sublease above, subject to
all the terms and conditions of this Sublease other than the obligation to pay
Base Monthly Rent and Common Area Expenses. Subtenant shall have the right to
enter the Expansion Area commencing on such the date sixty (60) days prior to
the applicable Expansion Area Commencement Date to construct Tenant
Improvements, install equipment and install voice and data cabling.
6. SUBLANDLORD'S WORK AND TENANT IMPROVEMENTS:
A. SUBLANDLORD'S WORK. Prior to the Early Occupancy Date,
Sublandlord shall complete the work in the Sublease Premises identified on
Exhibit "D" to this Sublease ("Sublandlord's Work") Sublandlord's Work shall be
performed at Sublandlord's sole cost and expense and shall be done in a good
and workmanlike manner in accordance with all applicable laws, statutes,
ordinances,
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governmental rules, regulations and requirements, including without limitation
all applicable fire and building codes and all Environmental Requirements
(collectively, "Governmental Requirements") using new materials.
B. DEFERRED MAINTENANCE ITEMS. Sublandlord shall provide Subtenant with
an allowance in the amount of Sixty-Nine Thousand Seven Hundred Twenty Seven
Dollars ($69,727.00) ("Deferred Maintenance Allowance") to reimburse Subtenant
for the cost to correct the deferred maintenance items listed on Exhibit "E" to
this Sublease ("Deferred Maintenance Items"). If and when Subtenant submits to
Sublandlord requests for reimbursement from the Deferred Maintenance Allowance
accompanied by an invoice from a third party or agency together with any such
appropriate lien waivers, which relate to the Deferred Maintenance Items,
Sublandlord shall, within thirty (30) days after Sublandlord's receipt of the
above items, pay Subtenant the amount requested up to the aggregate amount of
the Deferred Maintenance Allowance but only to the extent that there are
sufficient monies in the Deferred Maintenance Allowance available. In order to
receive reimbursement for a Defined Maintenance Item, such Defined Maintenance
Item shall be substantially completed by December 31, 1999.
C. TENANT IMPROVEMENT PLANS. Sublandlord shall provide Subtenant with a
tenant improvement allowance for the permitting and construction of the Tenant
Improvements and the fees payable to Subtenant's tenant improvement architect,
engineers and design professionals in the amount of five hundred thousand
dollars ($500,000.00) ("Work Allowance").
Final plans and specifications for the tenant improvements to be installed
by Subtenant in the Sublease Premises ("Tenant Improvements") are described on
Exhibit "F" ("Final Tenant Improvement Plans"), which Final Tenant Improvement
Plans are acceptable to Sublandlord and Subtenant. Sublandlord agrees that it
shall not require Subtenant to remove any of the Tenant Improvements from the
Sublease Premises at the end of the Sublease Term, unless Master Landlord has
required removal of such Tenant Improvements.
Subtenant shall cause the Tenant Improvements to be constructed by
Subtenant's contractor in accordance with the Final Tenant Improvement Plans,
which may be modified in an immaterial manner. Material changes in the Final
Tenant Improvement Plans (i.e. changes costing $100,000 or more in construction
costs) shall be subject to the prior approval of Sublandlord. Sublandlord shall
give its approval, or detailed reasons for disapproval, within twenty (20) days
after delivery to Sublandlord of the request for same. If Sublandlord fails to
respond within the twenty (20) day period, Sublandlord shall be deemed to have
given Sublandlord's approval.
If Subtenant submits to Sublandlord requests for reimbursement from the
Work Allowance accompanied by an invoice from a third party or agency together
with any such appropriate lien waivers, which relates to the Tenant
Improvements, within thirty (30) days after Sublandlord's receipt of the above
items, Sublandlord shall pay Subtenant the amount requested up to the aggregate
amount of the Work Allowance but only to the extent that there are sufficient
monies in the Work Allowance to cover the costs of constructing the Tenant
Improvements. Any shortfall (the "Shortfall") between the $500,000.00 Work
Allowance and the actual cost of construction of the Tenant Improvements will be
paid by Subtenant.
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7. ACCEPTANCE OF POSSESSION AND COVENANTS TO SURRENDER: On the
Commencement Date, Sublandlord shall deliver and Subtenant shall accept the
Initial Sublease Premises as being in good and sanitary order, condition and
repair, subject to Sublandlord's completion of Sublandlord's Work and subject
to latent defects. Sublandlord shall ensure that the Sublease Premises and any
equipment and building systems serving the Sublease Premises have been properly
decontaminated in accordance with all applicable Environmental Requirements
prior to the Commencement Date. Subtenant agrees on Expiration Date, or on the
sooner termination of this Sublease, to surrender the Sublease Premises to
Sublandlord in good condition and repair, reasonable wear and tear excepted.
"Good condition" shall mean that the interior walls, floors, and carpeting
within the Sublease Premises will be cleaned to the same condition as existed
at the Commencement Date, normal wear and tear excepted. Subtenant shall not be
required to remove any Tenant Improvements or other Alterations installed by
Subtenant which were approved by Sublandlord. Subtenant on or before the
Expiration Date or sooner termination of this Sublease, shall remove all its
personal property and trade fixtures from the Sublease Premises, and all
property and fixtures not so removed shall be deemed to be abandoned by
Subtenant.
8. USES PROHIBITED: Subtenant shall not commit, or suffer to be
committed, any waste upon the said Sublease Premises, or any nuisance, or other
act or thing which may disturb the quiet enjoyment of any other tenant in or
around the Sublease Premises or allow any sale by auction upon the Sublease
Premises, or allow the Sublease Premises to be used for any unlawful purpose.
9. ALTERATIONS AND ADDITIONS: Subtenant shall not make, or suffer to be
made, any alteration or addition to the said Sublease Premises ("Alterations"),
or any part thereof, without (i) the written consent of Sublandlord first had
and obtained, and (ii) delivering to Sublandlord the proposed architectural and
structural plans for all such Alterations. At the time Subtenant requests
Sublandlord's consent, Sublandlord shall provide its approval or detailed
reasons for disapproval within twenty (20) days. Sublandlord shall also notify
Subtenant at time of approval as to whether Sublandlord will require such
Alteration to be removed form the Sublease Premises at the end of the Sublease
term. Sublandlord will act reasonably in making its determination regarding the
removal of the Alterations. After having obtained Sublandlord's consent, which
consent shall not be unreasonably withheld or delayed, Subtenant agrees that it
shall not proceed to make such Alterations until Subtenant has obtained all
required governmental approvals and permits. Sublandlord shall have the right
to require Subtenant to provide Sublandlord a certificate of insurance naming
Sublandlord as additional insured for the construction of any Alterations.
Notwithstanding the foregoing, Subtenant shall not be required to obtain
Sublandlord's prior written consent for any non-structural Alterations (which
do not affect the mechanical or electrical systems and are not visible from the
exterior of the Sublease Premises) costing One Hundred Thousand Dollars
($100,000) or less, provided that Subtenant gives to Sublandlord a certificate
of insurance naming Sublandlord as additional insured.
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10. MAINTENANCE OF SUBLEASE PREMISES:
A. COMMON AREAS
i. "Common Areas" means all areas within the exterior boundaries of the
Parcel and outside the Building (as may be expanded), including, without
limitation, automobile parking areas, driveways, open or enclosed walkways,
trash enclosures and loading areas, canopies building overhangs, areas of
ingress and egress, sidewalks, stairways, and landscaped and planted areas.
ii. During the Term, Sublandlord shall operate and maintain the Common
Areas and all improvements thereof in good order, condition and repair,
including necessary replacements, and in compliance with Governmental
Requirements. Sublandlord shall not make any changes, alterations,
reconfigurations, reductions or modifications to the Common Areas which would
(x) interfere with Subtenant's use and enjoyment of the Sublease Premises,
Subtenant's access to the Sublease Premises, the visibility of Subtenant's
exterior signage, or any other rights Subtenant has under the Sublease, or (y)
reduce the then-existing parking ratio. Common Area maintenance shall be (i)
cleaning and removing rubbish and trash; (ii) cleaning, maintaining,
resurfacing, repairing, and remarking paved and unpaved surfaces, curbs,
directional and other signs, landscaping, gardening, decorating (permanent or
temporary, seasonal or otherwise), lighting facilities, drainage, and other
similar items; and (iii) maintenance of utility installations underlying the
Common Areas if not maintained or replaced by utility companies. All such work
and services shall be performed and provided in such manner as to keep the
Project in good order and condition.
iii. "Common Area Expenses" shall be all costs and expenses incurred by
Sublandlord in connection with the maintenance of the Common Areas, including
(i) reasonable costs for materials and supplies; (ii) costs for all utility
services utilized in connection with the Common Area, including all water
supplied to the Common Area; (iii) all premiums on casualty, public liability,
property damage and other insurance on the Common Area as described elsewhere in
this Sublease; (iv) all costs, rental or otherwise, for tools, machinery and
equipment used in connection with the maintenance of the Common Area; and (v)
all personal property taxes levied or assessed against the Common Area or
against property used in connection with the maintenance thereof.
iv. Notwithstanding the foregoing, Common Area Expenses shall exclude the
following items: personal property taxes paid by any tenant; loan payments;
brokers' and finders' fees or other commissions; leasing expenses; property
management fees; costs or expenses which according to generally accepted
accounting principles ("GAAP") are required to be capitalized (except where the
capital improvement actually reduce the cost of maintaining and operating the
common areas, the costs of which capital improvements are charged only on an
amortized basis over the useful life of the improvement in accordance with
GAAP); depreciation on improvements or equipment and machinery; advertising or
promotional expenses; attorneys' fees; costs incurred by Sublandlord in
connection with the clean-up or removal of any hazardous materials or toxic
waste; or costs or expenses incurred due to violation by Sublandlord of any term
or condition of the Sublease.
v. Sublandlord shall keep accurate records showing in reasonable detail
all expenses incurred for such Common Area Expenses. These records shall, upon
five (5) days prior notice to Sublandlord, be made available during business
hours at the offices of Sublandlord for
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inspection by Subtenant. Subtenant may employ an independent public accounting
firm to conduct the audit. The costs of the audit shall be paid by Subtenant
unless the audit shows that Sublandlord's adjusted statement over-charged
Subtenant its share of Common Area Expenses by more than five percent (5%), in
which case Sublandlord shall pay all Subtenant's costs of the audit.
vi. Subtenant shall pay to Sublandlord, as Additional Rent, for each
calendar year or fractional calendar year during the Term, the Common Area
Expenses. Notwithstanding the foregoing, the Common Area Expenses other than
real property taxes, utilities and insurance, shall not be increased by more
than seven percent (7%) per Sublease Year.
vii. Commencing on the first day of January of the year following the
year in which the Commencement Date occurs, and on the first day of January of
each year during the Term thereafter or as soon after as is practicable,
Subtenant shall pay to Sublandlord the Common Area Expenses for the Project. On
or before the Commencement Date and each calendar year thereafter, Sublandlord
shall furnish to Subtenant an itemized statement setting forth Sublandlord's
estimate of the total Common Area Expenses projected for the immediately
succeeding calendar year or partial calendar year. Subtenant shall pay such
estimated expenses in equal monthly installments concurrently with each
installment of Base Monthly Rent. Within 90 days after the end of each calendar
year, or if the Sublease Term terminates on a date other than the last day of a
calendar year, then 90 days after the termination date, Sublandlord shall
furnish to Subtenant a statement in writing showing the actual Common Area
Expenses incurred for the preceding calendar year or partial calendar year. At
such time an adjustment shall be made between Sublandlord and Subtenant, so that
Subtenant's payments of estimated Common Area Expenses for the preceding year or
partial year is equal to the actual Common Area Expenses for the same period.
Any overpayment by Subtenant shall be credited by Sublandlord to the monthly
installments of estimated Common Area Expenses falling due thereafter or
refunded to Subtenant or, if the Sublease has terminated, then any overpayment
shall be credited against any amounts owed to Sublandlord by Subtenant, or if
none, shall be paid to Subtenant and any underpayment by Subtenant shall be paid
to Sublandlord within 30 days of notice to Subtenant of such underpayment.
B. SUBLANDLORD'S OBLIGATIONS. Sublandlord shall maintain the following
portions of the Sublease Premises at Sublandlord's sole cost and expense:
exterior walls, glazing, glazing membrane (including all framing connections,
exterior doors and exterior wall penetrations, pre-cast sections, spandrel
glass sections and connections with parapet flashing), roof, roof membrane,
structural members, unexposed plumbing, unexposed electrical, foundation and
sewer lines to the Building. Notwithstanding the foregoing, any repairs of such
items required by Subtenant's negligence or misuse, shall be made by Subtenant.
C. SUBTENANT'S OBLIGATIONS: Except as provided in 10.A and 10.B above,
and except as provided in the following sentence, Subtenant shall, at its sole
cost, keep and maintain, repair and replace, said Building and appurtenances
and every part thereof in good and sanitary order, condition, and repair. In
the event that a repair or replacement of any item in the Building (other than
normal and routine maintenance) is required costing in excess of $3,000,
Subtenant shall pay the first three thousand dollars ($3,000) of the cost and
the cost in excess of three thousand dollars ($3,000) shall be paid by
Sublandlord and amortized over the useful life of the improvement. Subtenant
shall
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reimburse Sublandlord annually for such excess to the extent of the amortized
amount which falls in any remaining year of the Sublease term.
D. WARRANTY AGAINST DEFECTS. Sublandlord hereby warrants,
represents and covenants that on the Commencement Date, the Sublease Premises
and the building systems shall be free from any substantial faults or defects
and that the Sublease Premises and the common areas shall comply with all
Governmental Requirements; all covenants, conditions, restrictions and
easements affecting the Sublease Premises. If, within one (1) year after the
Commencement Date, any portion of the Sublease Premises is found to be faulty
or defective or not in conformance with the provisions of the Sublease (other
than as a result of actions or failure to properly act by Subtenant),
Sublandlord shall cause the same to be corrected at its own expense promptly
after receipt of a written notice from Subtenant to do so.
11. INSURANCE:
A. Sublandlord's Insurance Requirements. Notwithstanding anything to
the contrary contained in the Sublease, Sublandlord shall, during the Sublease
Term, procure and keep in force the following insurance, the cost of which shall
be a Common Area Expense as described in the Sublease:
i. Property Insurance. "All Risk" property insurance against
loss or damage to the buildings and other improvements in the Project resulting
from fire, vandalism, malicious mischief and such other perils ordinarily
included in extended coverage casualty insurance policies. Such insurance shall
be maintained in an amount not less than one hundred percent (100%) of the full
replacement value of said improvements.
ii. General Liability. Commercial General Liability insurance
against claims for bodily injury and property damage occurring in or about the
Project (and Sublandlord's operations in the Project), or arising out of the
acts or omissions of Sublandlord, its agents, representatives, or employees.
- The policies shall be written on an occurrence basis;
- The policies shall provide a limit of not less than:
$2,000,000 per occurrence; and
$5,000,000 in the aggregate.
Such insurance shall:
- provide for contractual coverage, including liability assumed by
and the obligations of Sublandlord under the indemnity portions of
this Sublease for bodily injury, death, and/or property damage; and
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- include a cross liability endorsement permitting recovery with
respect to claims of one insured against another and providing for
severability of the interests of the insureds.
B. Subtenant's Insurance Requirements. At all times during the term
of this Sublease and at its sole cost and expense, Subtenant shall obtain and
keep in force for the benefit of the Subtenant and Sublandlord the following
insurance:
i. Workers' Compensation and Employer's Liability Insurance.
Workers' Compensation Insurance in the amounts and coverage's required under
workers' compensation, disability and similar employee benefit laws applicable
to the state in which the Sublease Premises is located, and Employer's
Liability Insurance, with limits of not less than $1,000,000.
ii. General Liability. Commercial General Liability insurance
against claims for bodily injury and property damage occurring on the Sublease
Premises occupied by Subtenant.
- The policies shall be written on an occurrence basis;
- The policies shall provide a limit of not less than:
$2,000,000 per occurrence; and
$5,000,000 in the aggregate.
Such insurance shall:
- provide for contractual coverage, including liability assumed by
and the obligations of Subtenant under the indemnity portions of
this Sublease for bodily injury, death, and/or property damage; and
- include a cross liability endorsement permitting recovery with
respect to claims of one insured against another and providing for
severability of the interests of the insureds.
iii. Policy Form and General. All of the insurance required
under this Sublease, and all renewals thereof, shall be issued by one or more
companies of recognized responsibility admitted to sell insurance in California
with a financial rating of at least a Class A (or its equivalent successor)
status, as rated in the most recent edition of A.M. Best's Insurance reports
(or its equivalent successor, or, if there is not equivalent successor rating,
otherwise reasonably acceptable to Sublandlord). All liability insurance shall
name as additional insureds Sublandlord.
iv. Verification of Coverage. Upon request, Subtenant shall
furnish Sublandlord with certificates of insurance affecting coverage required
by this clause.
C. Waiver of Subrogation: Sublandlord and Subtenant hereby waive
any and all rights each may have against the other on account of any loss or
damage occasioned to the Sublandlord or the Subtenant as the case may be, or to
the Sublease Premises or its contents, to the extent covered
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by their respective insurance policies, as set forth above. The parties shall
use their reasonable efforts to obtain from their respective insurance
companies a waiver of any right of subrogation which said insurance company may
have against the Sublandlord or the Subtenant, as the case may be.
12. TAXES: Subtenant shall be liable for, and shall pay prior to
delinquency, all taxes and assessments levied against Subtenant's personal
property and trade or business fixtures Subtenant also agrees to reimburse
Sublandlord, as additional rental, for the real estate taxes and assessment
installments (special or general) or other impositions or charges which may be
levied on the parcel as improved by Sublandlord's Building which includes the
Sublease Premises. Sublandlord shall pay the taxes and assessments prior to
their due date. Subtenant shall pay Sublandlord for the real estate taxes and
assessments within thirty (30) days after receipt of a notice thereof
accompanied by the applicable tax bill. It is understood and agreed that
Subtenant's obligation under this paragraph will be prorated to reflect the
Commencement and Expiration Dates. If, at any time during the Sublease Term, a
tax, excise on rents, business license tax, or any other tax, however described,
is levied or assessed against Sublandlord, as a substitute or addition in whole
or in part for taxes assessed or imposed on land or Buildings, Subtenant shall
pay and discharge such tax or excise on rents or other tax before it becomes
delinquent or earlier if a discount is offered by the taxing authority, except
that this provision is not intended to cover net income taxes, inheritance, gift
or estate tax imposed upon the Sublandlord. In the event that a tax is placed,
levied, or assessed against Sublandlord and the taxing authority takes the
position that the Subtenant cannot pay and discharge such tax on behalf of the
Sublandlord, then at the sole election of the Sublandlord, the Sublandlord may
increase the rental charged hereunder by the exact amount of such tax and
Subtenant shall pay such increase as additional rent hereunder on a 1/12th basis
each month. Subtenant shall have the right to seek a reduction of the assessed
value of the Parcel on behalf of Sublandlord but during the pendency of said
proceeding Subtenant must continue to pay its share of such assessments
including real estate taxes If by virtue of any application or proceeding
brought by or on behalf of Sublandlord, there results a reduction in the
assessed value of the Parcel during the Sublease Term, Subtenant agrees to
reimburse Sublandlord its out of pocket costs incurred by Sublandlord in
connection with such application or proceeding, up to the amount of the tax
savings achieved.
A. Subtenant shall be responsible for increases in real property
taxes arising out of Sublandlord's acquisition of the Parcel from Master
Landlord.
B. Except as provided in 12.A above, in the event of an increase in
real property taxes that results from changes in ownership of the Parcel, the
buildings or other improvements in the Project, Subtenant shall be responsible
for the payment of the tax rate in effect before the tax increase as increased
by the lesser of (i) the actual tax increase; or (ii) three percent (3%).
13. UTILITIES AND SERVICES: Subtenant shall pay for the cost of all
utilities supplied to the Sublease Premises. In the event of any failure in the
supply of the utilities or services for the Building, whether resulting from
breakdown, removal from service for maintenance or repairs, strikes, scarcity
of labor or materials, acts of God, Governmental Requirements, action or
inaction, or other cause whatsoever, Sublandlord shall not have any liability
to Subtenant. Notwithstanding the foregoing, in the event of the failure of any
utility to the Sublease Premises for more than ten (10) consecutive days
through no fault of Subtenant, Monthly Base Rent and additional rent payable by
Subtenant hereunder shall abate commencing on the eleventh day, until such
utility is restored.
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14. FREE FROM LIENS: Subtenant shall keep the Sublease Premises free from
any liens arising out of any work performed, materials furnished, or obligations
incurred by Subtenant or claimed to have been performed for Subtenant. In the
event Subtenant fails to discharge any such lien within ten (10) days after
receiving notice of the filing from Sublandlord, Sublandlord shall be entitled
to discharge such lien at Subtenant's expense and all resulting costs incurred
by Sublandlord, including attorney's fees shall be due from Subtenant as
additional rent. No person or entity performing work for Subtenant shall have a
right to file a lien on Sublandlord's Building.
15. WARRANTY REGARDING USE. Sublandlord hereby warrants, represents and
covenants that upon Sublandlord's tender of possession of the Sublease Premises
to Subtenant, the Sublease Premises and the use of the Sublease Premises for
the purposes indicated in Section 3 of this Sublease shall not be in violation
of any Governmental Requirements; any air quality standards established by law;
or any covenants, conditions, restrictions and easements affecting the Sublease
Premises.
16. COMPLIANCE WITH GOVERNMENTAL REGULATIONS: Subtenant shall, at its
sole cost and expense, comply with and observe all Governmental Requirements
pertaining to the said Sublease Premises, including those of any applicable
environmental permit, license, certificate, authorization or approval
("Environmental Approval"), and shall faithfully observe in the use of the
Sublease Premises, including any regulations dealing with signage.
Notwithstanding the foregoing, the cost of any structural repairs or
alterations or capital improvements to the Sublease Premises or the fire
proofing system serving the Sublease Premises which may be required by
Governmental Requirements (whether presently existing or hereinafter enacted),
insurance regulations or otherwise, which are not required solely because of
Subtenant's negligence or Subtenant's particular use of the Sublease Premises
shall be paid for by Sublandlord. Such cost shall be amortized over the useful
life of the improvement in accordance with generally accepted accounting
principles, and charged to Subtenant as a Common Area Expense to the extent the
amortized portion falls within any Sublease Year.
17. ENVIRONMENTAL MATTERS:
A. As used herein, the following terms shall have the following
meanings:
"ENVIRONMENTAL ACTIVITY" means any actual, proposed, threatened or
claimed use, storage, treatment, existence, release, emission, discharge,
generation, manufacture, import, export, disposal or transportation of any
Hazardous Materials at, from, into, on, under or about the Sublease Premises or
Parcel, or any other activity or occurrence that causes or would cause any such
event to occur.
"ENVIRONMENTAL REQUIREMENTS" means all present and future federal,
state, regional or local laws and regulations relating to the use, storage,
treatment, existence, release, emission, discharge, generation, manufacture,
import, export, disposal or transportation of any substance, material or waste
defined as "hazardous" therein, the protection of the environment, or
protection and/or monitoring of human health and safety, occupational safety,
or industrial hygiene.
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"HAZARDOUS MATERIALS" means any substance(s), material(s), or waste(s)
which are classified or considered to be hazardous or toxic under any
Environmental Requirement.
B. Subtenant shall conduct any and all of its Environment Activities on
the Sublease Premises in compliance with applicable Environmental Requirements.
C. Subtenant shall, at its own expense, procure, maintain in effect and
comply with all conditions of any and all Environmental Approvals (as defined
in Section 16 above) required under any Environmental Requirements for any
Environmental Activity at the Sublease Premises by Subtenant.
D. Sublandlord and Subtenant each shall deliver promptly to the other any
notices, orders, or similar documents received from any governmental agency or
official or third party concerning any alleged violation of any Environmental
Requirement. Upon having knowledge thereof, Sublandlord and Subtenant each
shall promptly provide notice to the other party of:
i. any regulatory action that has been instituted, or threatened by
any governmental agency or court with respect to the Parcel that relates to any
Environmental Activity;
ii. any claim relating to any Environmental Activity at the Parcel;
or
iii. any actual or threatened material release on, under or about
the Parcel of any Hazardous Material(s), except any Hazardous Material(s) whose
discharge or emission is expressly authorized by and in compliance with an
Environmental Approval issued by a federal, state, regional or local
governmental agency pursuant to Environmental Requirements.
E. Sublandlord shall indemnify, hold harmless, and defend Subtenant from
and against any liabilities, claims, demands, obligations, responsibilities,
losses, damages (whether punitive or consequential), charges, costs and
expenses (including, without limitation, attorneys', experts', and consultants'
fees and costs of investigation and feasibility studies) fines, penalties and
monetary sanctions or interest which are incurred at any time relating directly
or indirectly to Sublandlord's use or ownership of the Parcel, or to the
Environmental Activities of any third party that:
i. is the result of the existence of Sublandlord's operations on
or use of the Parcel;
ii. is the result of the existence of Hazardous Materials upon,
about, or beneath the Parcel (whether originating on the Parcel or outside the
Parcel), or migrating or threatening to migrate from or onto the Property prior
to the inception date or during the term of this Sublease other than Hazardous
Materials upon, about, or beneath the Sublease Premises, or migrating or
threatening to migrate from or onto the Parcel which is caused directly or
indirectly by the actions of Subtenant or Subtenant's Agents or its use or
occupancy of the Sublease or Parcel;
iii. is the result of the existence of a violation of Environmental
Requirements or liability pursuant to any provision of Environmental
Requirements pertaining to the Parcel that existed or arose out of operations
prior to the Commencement Date of this Sublease that may be incurred by,
imposed upon, or asserted or awarded against Subtenant; or
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iv. is the result of the action or inaction of any third party
or Sublandlord, or is the result of a violation of Environmental Requirements
caused by any third party or Sublandlord.
F. Subtenant shall indemnify, hold harmless, and defend Sublandlord
from and against any liabilities, claims, demands, obligations,
responsibilities, losses, damages (whether punitive or consequential), charges,
cost and expenses (including, without limitation, attorneys', experts' and
consultants' fees, costs of investigation, and feasibility studies), fines,
penalties, and monetary sanctions or interest which are incurred at any time
related directly to Subtenants's use of the Sublease Premises.
G. The provisions of SECTIONS 17.E AND 17.F shall survive the
expiration or earlier termination of this Sublease.
H. As an inducement to Subtenant to enter into this Sublease,
Sublandlord represents and warrants to Subtenant as follows:
i. HAZARDOUS MATERIALS. Neither Sublandlord nor any tenant,
occupant, or user of the Property or Sublease Premises has engaged in or
permitted any operations or activities upon, or any use or occupancy of the
Property or Sublease Premises, for the purpose of or in any way involving the
handling, manufacture, treatment, storage, use, generation, release, discharge,
dumping, or disposal of any Hazardous Materials on, under, or about the
Property, nor any Hazardous Materials presently constructed, deposited, stored,
or otherwise located on, under, in or about the Property.
ii. NO NOTICE OF VIOLATION OR LITIGATION. Sublandlord has not
received notice or other communication concerning any alleged violation of
Environmental Requirements, nor notice or other communication concerning alleged
liability resulting from Environmental Activities at the Property, and there
exists no writ, injunction, decree, order, or judgment outstanding, or any
lawsuit, claim, proceeding, citation, directive, summons of investigation,
pending or threatened, relating to the ownership, use, maintenance or operation
of the Property by any person or governmental agency.
I. Sublandlord shall reasonably cooperate with Subtenant to the
extent necessary to assist Subtenant in the procurement of any Environmental
Approvals to provide for the full enjoyment of Subtenant's rights under this
Sublease, to the extent required or requested by any governmental or regulatory
agency granting such Environmental Approvals, and to the extent consistent with
normal and usual Environmental Approvals used and required in the electronics
industry. In connection with this obligation, Sublandlord will bear its own
reasonable internal costs associated with such cooperation.
18. INDEMNITY:
A. As a material part of the consideration to be rendered to
Sublandlord, Subtenant shall indemnify, defend (with counsel reasonably
satisfactory to Sublandlord) and hold Sublandlord
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and Sublandlord's agents, directors, officers, employees, invitees and
contractors (collectively, the "Indemnified Parties") harmless from and against
any expense or loss, including attorneys' fees, resulting from Subtenant's
negligent performance or breach of duty under this Sublease or Subtenant's use
or occupancy of the Sublease Premises, and shall defend at its own expense,
including attorney's fees, any suit brought against Indemnified Parties alleging
any such item; provided, that (i) Sublandlord immediately notifies Subtenant of
the assertion of any such claim, (ii) permits Subtenant through counsel of
Subtenant's choice to conduct the defense (including the terms of a settlement,
if any) of such claim, and (iii) Sublandlord provides Subtenant with all needed
information, assistance, and authority, at Subtenant's expense, to enable
Subtenant to defend against such claim. The foregoing obligation to indemnify
and defend is expressly limited to only those damages directly resulting from
the negligence or breach by Subtenant or Subtenant's use or occupancy of the
Sublease Premises and shall not apply to those damages resulting, in whole or in
part, from the items Sublandlord is required to indemnify the Indemnified
Parties for under Section 18.B below. The provisions of this paragraph shall
survive the termination of the Sublease with respect to any claim arising before
such termination. The provisions of this paragraph shall not apply to damage or
injury arising from the presence of Hazardous Materials on the Sublease
Premises, which is separately addressed in Article 17 hereof.
B. As a material part of the consideration to be rendered to
Subtenant, Sublandlord shall indemnify, defend (with counsel reasonably
satisfactory to Subtenant) and hold Subtenant and Subtenant's agents,
directors, officers, employees, invitees and contractors (collectively the
"Subtenant Indemnitees"), exempt and harmless (i) from any damage or injury to
any person, or to the goods, wares and merchandise and all other personal
property of any person, arising from the negligence or willful misconduct of
Sublandlord, or (ii) arising from or in connection with the use, occupation,
management, repair, maintenance or control of any portions of the Parcel not
physically and exclusively occupied by Subtenant, including but not limited to
any Common Areas. Further, in the event a Subtenant Indemnitee is made party to
any litigation due solely to the breach by Sublandlord of its obligations under
the Sublease, negligence or willful misconduct of Sublandlord, its employees,
contractors, agents and invitees, Sublandlord will indemnify and hold the
Subtenant Indemnitee harmless from any such claim or liability including its
costs and expenses and reasonable attorney's fees incurred in defending such
claims.
19. ADVERTISEMENTS AND SIGNS: Sublandlord hereby permits Subtenant to
install exclusive monument and exterior Building signage bearing Subtenant's
corporate logo, which signage may be up to the maximum size permitted by the
local governmental agencies. Subtenant, at Subtenant's cost, shall obtain all
required permitting from governmental agencies. The method of installation of
the exterior Building signage shall be subject to Sublandlord's reasonable
approval, it being understood that the method used for similar buildings in the
area of the Building shall be deemed acceptable to Sublandlord. Subtenant will
not place or permit to be placed, in, upon or about the said Sublease Premises
any signs not approved by the city or other governing authority.
20. ATTORNEY'S FEES: In case a suit or alternative form of dispute
resolution should be brought for the possession of the Sublease Premises, for
the recovery of any sum due hereunder, to interpret the Sublease or because of
the breach of any other covenant herein, the losing party shall pay to the
prevailing party a reasonable attorney's fee including the expense of expert
witnesses, depositions and court testimony as part of its costs which shall be
deemed to have accrued on the
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commencement of such action. In addition, the prevailing party shall be entitled
to recover all costs and expenses including reasonable attorney's fees incurred
by the prevailing party in appealing (if successful on appeal) or enforcing any
judgment or award against the other party. The foregoing provision relating to
post-judgment costs is intended to be severable from all other provisions of
this Sublease.
21. SUBTENANT'S DEFAULT: The occurrence of any of the following shall
constitute a material default and breach of this Sublease by Subtenant: a) Any
failure by Subtenant to pay any rent under this Sublease on or before the date
such rent is due under this Sublease which failure continues for fifteen (15)
days after written notice from Sublandlord to Subtenant (provided that
Sublandlord shall not be required to give Subtenant notice more than one time in
any twelve (12) month period); b) A failure by Subtenant to observe and perform
any other provision of this Sublease to be observed or performed by Subtenant,
where such failure continues for thirty (30) days after written notice thereof
by Sublandlord to Subtenant, provided, however, that if the nature of such
default is such that the same cannot reasonably be cured within such thirty (30)
day period Subtenant shall not be deemed to be in default if Subtenant shall
within such period commence such cure and thereafter diligently prosecute the
same to completion; c) The making by Subtenant of any general assignment for the
benefit of creditors; the filing by or against Subtenant of a petition to have
Subtenant adjudged a bankrupt or of a petition for reorganization or arrangement
under any law relating to bankruptcy (unless, in the case of petition filed
against Subtenant, the same is dismissed after the filing); d) the appointment
of a trustee or receiver to take possession of substantially all of Subtenant's
assets located at the Sublease Premises or of Subtenant's interest in this
Sublease, where possession is not restored to Subtenant within thirty (30) days;
or e) the attachment, execution or other judicial seizure of substantially all
of Subtenant's assets located at the Sublease Premises or of Subtenant's
interest in this Sublease, where such seizure is not discharged within thirty
(30) days.
Notwithstanding anything in this Lease to the contrary, Subtenant's shall
not be in default for the failure to pay Rent unless and until such failure
continues for a grace period of five (5) days after same is due.
A. Remedies: In the event of any such default by Subtenant, then in
addition to any other remedies available to Sublandlord at law or in equity,
Sublandlord shall have the immediate option to terminate this Sublease and all
rights of Subtenant hereunder by giving written notice of such intention to
terminate. In the event that Sublandlord shall elect to so terminate this
Sublease then Sublandlord may recover from Subtenant: a) the worth at the time
of award of any unpaid rent which had been earned by the time of such
termination; plus b) the worth at the time of award of the amount by which the
unpaid rent which would have been earned after termination until the time of
award exceeds the amount of such rental loss for the same period that Subtenant
proves could have been reasonably avoided; plus c) the worth at the time of
award of the amount by which the unpaid rent for the balance of the Sublease
Term after the time of award exceeds the amount of such rental loss that
Subtenant proves could be reasonably avoided; plus d) any other amount
necessary to compensate Sublandlord for all the detriment proximately caused by
Subtenant's failure to perform its obligations under this Sublease or which in
the ordinary course of things would be likely to result therefrom, and e) at
Sublandlord's election, such other amounts in addition to or in lieu of the
foregoing as may be permitted from time to time by applicable California law.
The term "rent", as used herein, shall be deemed to be and to mean the minimum
monthly installments of Base Monthly Rent and all other
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sums required to be paid by Subtenant pursuant to the terms of this Sublease,
all other such sums being deemed to be additional rent due hereunder. As used
in (a) and (b) above, the "worth at the time of award" is to be computed by
allowing interest at the rate of the discount rate of the Federal Reserve Bank
of San Francisco plus one (1%) percent per annum. As used in (c) above, the
"worth at the time of award" is to be computed by discounting such amount at
the discount rate of the Federal Reserve Bank of San Francisco at the time of
award plus one (1%) percent.
B. Right to Re-enter: In the event of any such default by
Subtenant, Sublandlord shall also have the right, after terminating this
Sublease, to re-enter the Sublease Premises and remove all persons and property
from the Sublease Premises; such property may be removed and stored in a public
warehouse or elsewhere at the cost of and for the account of Subtenant and
disposed of by Sublandlord in any manner permitted by law.
C. Abandonment: If Sublandlord does not elect to terminate this
Sublease as provided in Article 21.A or 21.B above, then the provisions of
California Civil Code Section 1951.4, (Sublandlord may continue the Sublease in
effect after Subtenant's breach and abandonment and recover rent as it becomes
due, if Subtenant has a right to sublet and assign, subject only to reasonable
limitations) as amended from time to time, shall apply and Sublandlord may from
time to time, without terminating this Sublease, either recover all rental as
it becomes due or relet the Sublease Premises or any part thereof for such term
or terms and at such rental or rentals and upon such other terms and conditions
as Sublandlord in its sole discretion may deem advisable with the right to make
alterations and repairs to the Sublease Premises. In the event that Sublandlord
shall elect to so relet, then rentals received by Sublandlord from such
reletting shall be applied: first, to the payment of any indebtedness other
than Base Monthly Rent due hereunder from Subtenant to Sublandlord; second, to
the payment of any cost of such reletting; third, to the payment of reasonable
cost of any reasonably necessary alterations and repairs to the Sublease
Premises; fourth, to the payment of Base Monthly Rent due and unpaid hereunder;
and the residue, if any, shall be held by Sublandlord and applied in payment of
future Base Monthly Rent as the same may become due and payable hereunder.
Should that portion of such rentals received from such reletting during any
month, which is applied by the payment of rent hereunder, be less than the rent
payable during that month by Subtenant hereunder, the Subtenant shall pay such
deficiency to Sublandlord immediately upon demand therefor by Sublandlord. Such
deficiency shall be calculated and paid monthly. Subtenant shall also pay to
Sublandlord, as soon as ascertained, any reasonable costs and expenses incurred
by Sublandlord in such reletting or in making such alterations and repairs not
covered by the rentals received from such reletting.
D. No Termination: No re-entry or taking possession of the Sublease
Premises by Sublandlord pursuant to 21.B or 21.C of this Article 21 shall be
construed as an election to terminate this Sublease unless a written notice of
such intention be given to Subtenant or unless the termination thereof be
decreed by a court of competent jurisdiction. Notwithstanding any reletting
without termination by Sublandlord because of any default by Subtenant,
Sublandlord may at any time after such reletting elect to terminate this
Sublease for any such default.
22. SURRENDER OF SUBLEASE: The voluntary or other surrender of this
Sublease by Subtenant, or a mutual cancellation thereof, shall not
automatically effect a merger of the Sublease with Sublandlord's ownership of
the Sublease Premises. Instead, at the option of Sublandlord, Subtenant's
surrender may terminate all of any existing sublease or subtenancies, or may
operate as an
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assignment to Sublandlord of any or all such subleases or subtenancies, thereby
creating a direct Sublandlord-Subtenant relationship between Sublandlord and
any subtenants.
23. SUBLANDLORD'S DEFAULT: In the event of Sublandlord's failure to
perform any of its covenants or agreements under this Sublease, Subtenant shall
give Sublandlord written notice of such failure and shall give Sublandlord
thirty (30) days to cure or to commence to cure such failure prior to any claim
for breach or for damages resulting from such failure, provided, however, that
if the nature of such default is such that the same cannot reasonably be cured
within such thirty (30) day period Sublandlord shall not be deemed to be in
default if Sublandlord shall within such period commence such cure and
thereafter diligently prosecute the same to completion.
If Sublandlord fails to perform Sublandlord's obligations under this
Sublease, Subtenant shall after thirty (30) days prior written notice to
Sublandlord (except in the case of emergency, in which case no notice shall be
required), have the right (but not the obligation) to perform such obligation
on Sublandlord's behalf and the cost thereof shall be due and payable to
Subtenant within thirty (30) days after notice thereof.
24. NOTICES: All notices, demands, requests, or consents required to be
given under this Sublease shall be sent in writing by U.S. certified mail,
return receipt requested, or by nationally recognized overnight courier such as
U.S. Express Mail or Federal Express, to the party to be notified at the
address for such party specified in this Article 24, or to such other street
address as the party to be notified may from time to time designate by at least
fifteen (15) days prior notice to the notifying party. Notices to Sublandlord
shall be sent to the address specified in Article 1 of this Sublease. Notices
to Subtenant shall be sent to (i) the address specified in Article 1 of this
Sublease, attn: Vice President, Real Estate, and (ii) Mr. Wayne Timura,
Director, Real Estate and Development, Quantum Corporation, 10125 Federal
Drive, Colorado Springs, CO 80908. Notice sent via certified mail shall be
deemed given five (5) days after so deposited in the U.S. mail and notices sent
via overnight courier shall be deemed given the next business day after so
deposited.
25. ENTRY BY SUBLANDLORD: Upon 24 hours' prior notice, except in the case
of emergency or serious repair in which case reasonable notice under the
circumstances is required, Subtenant shall permit Sublandlord and his agents to
enter into and upon said Sublease Premises at all reasonable times subject to
any security reasonable regulations of Subtenant for the purposes of (i)
inspecting the same, (ii) maintaining the Sublease Premises, (iii) making
repairs, alterations or additions to the Sublease Premises, (iv) erecting
additional buildings and improvements on the land where the Sublease Premises
are situated, or on adjacent land owned by Sublandlord, or (v) performing any
obligations of the Sublandlord under the Sublease including remediation of
Hazardous Materials if determined to be the responsibility of Sublandlord.
26. DESTRUCTION OF SUBLEASE PREMISES:
A. Destructions by an Insured Casualty: In the event of a partial
destruction of the Sublease Premises by a casualty for which Sublandlord is
required to carry insurance pursuant to this Sublease, during the Sublease Term
from any cause, Sublandlord shall, within thirty (30) days thereafter, notify
Subtenant of the amount of time Sublandlord reasonably determines will be
required to restore the Sublease Premises.
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Sublandlord will forthwith repair the Sublease Premises, provided such
repairs can be made within one hundred eighty (180) days from the date of damage
(as reasonably determined by Sublandlord).
Any partial destruction shall in no way annul or void this Sublease, except
that Subtenant shall be entitled to a proportionate reduction of Base Monthly
Rent while such repairs are being made, such proportionate reduction to be based
upon the extent to which the making of such repairs shall interfere with the
business carried on by Subtenant in the Sublease Premises. For purposes of this
paragraph "partial destruction" shall mean destruction of no greater than
one-third (1/3) of the replacement cost of the Sublease Premises, excluding the
replacement cost of the Tenant Improvements paid for by Subtenant. In the event
the Sublease Premises (i) are more than partially destroyed, or (ii) the repairs
cannot be made in one hundred eighty (180) days, Sublandlord or Subtenant may
elect to terminate this Sublease within fifteen (15) days of determination by
Sublandlord of the foregoing. In no event, however shall Sublandlord be required
to replace or restore (i) Alterations, (ii) Tenant Improvements paid for by
Subtenant from sources other than the Work Allowance, or (iii) Subtenant's
fixtures or personal property.
B. Destruction by an Uninsured Casualty: In the event of a total or
partial destruction of the Sublease Premises by a casualty for which Sublandlord
is not required to carry insurance pursuant to this Sublease, the Sublease shall
automatically terminate, unless (i) Sublandlord elects to rebuild at
Sublandlord's cost, and (ii) the damage can be repaired within one hundred
eighty (180) days.
C. Damage or Destruction Near End of Sublease Term: If the Sublease
Premises are damaged or destroyed in whole or in part from any cause during the
last year of the Sublease Term, Sublandlord or Subtenant may terminate by
giving written notice of such election to do so within thirty (30) days after
the event of such damage or destruction, with termination to be effective as of
the date thirty (30) days after the date of such notice.
27. ASSIGNMENT OR SUBLEASE:
A. Consent by Sublandlord: Except as specifically provided in this
Article 27, Subtenant may not assign, sublet, hypothecate, encumber its
leasehold interest, or allow a third party to use the Sublease Premises without
the express written consent of Sublandlord, which consent shall not be
unreasonably withheld or delayed. In the event Subtenant desires to assign this
Sublease or any interest therein including, without limitation, a pledge,
mortgage or other hypothecation, or sublet the Sublease Premises or any part
thereof, Subtenant shall deliver to Sublandlord copies of any such proposed
agreement and of all ancillary agreements with the proposed assignee or
subtenant, financial statements, and any additional information as reasonably
required by Sublandlord to determine whether it will consent to the proposed
assignment or sublease. The notice shall give the name and current address of
the proposed assignee/subtenant, proposed use of the Sublease Premises, rental
rate and current financial statement (if available); and upon request to
Subtenant, Sublandlord shall be given additional information as reasonably
required by Sublandlord to determine whether it will consent to the proposed
assignment or sublease. Sublandlord shall then have a period of ten (10) days
following receipt of the foregoing agreement, statements and additional
information within which to
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notify Subtenant in writing that Sublandlord elects (i) to permit Subtenant to
assign or sublet such space to the named assignee/subtenant on the terms and
conditions set forth in the notice, or (ii) to refuse consent, which refusal
shall set forth Sublandlord's reasons therefore. If Sublandlord should fail to
notify Subtenant in writing of such election within said ten (10) day period,
Sublandlord shall be deemed to have elected option (i) above. Sublandlord's
consent (which must be in writing and in form reasonably satisfactory to
Sublandlord) to the proposed assignment or sublease, shall not be unreasonably
withheld, provided and upon condition that: (i) the proposed assignee or
subtenant is engaged in a business that is limited to the use expressly
permitted under this Sublease; (ii) the proposed assignee or subtenant is a
company with sufficient financial worth and management ability to undertake the
financial obligation of this Sublease, and Sublandlord has been furnished with
reasonable proof thereof; (iii) the proposed assignment or sublease shall be in
form reasonably satisfactory to Sublandlord; (iv) Subtenant shall reimburse
Sublandlord on demand for any costs that may be incurred by Sublandlord in
connection with said assignment or sublease, including the costs of making
investigations as to the acceptability of the proposed assignee or subtenant
and legal costs incurred in connection with the granting of any requested
consent, not to exceed $1,000 in the aggregate; (v) the initial Subtenant shall
not be released from liability; and (vi) any increase in rental income from
what is being charged Subtenant and what is being charged successor tenant or
sublessee shall be split fifty percent (50%) to Sublandlord and fifty percent
(50%) to Subtenant, after deducting Subtenant's costs of reletting the Sublease
Premises (including brokerage commissions, time unoccupied, and costs of
improving the Sublease Premises).
Sublandlord's prior consent shall not be required for (i) any sub-sublease
of Subtenant's interest in the Sublease to Meridian Data, Inc. (in the event
Quantum Corporation's planned acquisition of Meridian Data, Inc. does not take
place); or (ii) any assignment, sublease or other transfer of Subtenant's
interest in the Sublease Premises or the Sublease to any other corporation with
which Subtenant may merge or consolidate or become affiliated as a parent,
subsidiary, holding company or otherwise, or to an entity in which Subtenant
has a controlling interest; provided that Subtenant will not be released from
liability unless Sublandlord agrees to release Subtenant. However, Subtenant
shall give Sublandlord prior notice of any such assignment, sublease or other
transfer of Subtenant's interest. A subsequent public offering and sale of
stock in Subtenant's business, or a transfer of any amount of Subtenant's stock
shall not constitute an assignment of the Sublease.
B. Documentation: Any assignment or sublease shall be made only if
and shall not be effective until the assignee or subtenant shall execute,
acknowledge and deliver to Sublandlord an agreement, in form and substance
satisfactory to Sublandlord, whereby the assignee or subtenant shall assume all
of the obligations of this Sublease on the part of Subtenant to be performed or
observed and shall be subject to all of the covenants, agreements, terms,
provisions and conditions contained in this Sublease.
28. CONDEMNATION: If any part of the Sublease Premises shall be taken for
any public or quasipublic use, under any statute or by right of eminent domain
or private purchase in lieu thereof, and only a part thereof remains which is
susceptible of occupation hereunder, this Sublease shall as to the part so
taken, terminate as of the day before title shall vest in the condemnor or
purchaser ("Vesting Date"), and the Base Monthly Rent payable hereunder shall
be adjusted so that the Subtenant shall be required to pay for the remainder of
the Sublease Term only such portion of such Base Monthly Rent as the value of
the part remaining after such taking bears to the value of the entire
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<PAGE> 24
Sublease Premises prior to such taking. If all of the Sublease Premises, or
such part thereof be taken so that there does not remain a portion susceptible
for occupation hereunder, this Sublease shall thereupon terminate on the
Vesting Date. In addition, if twenty-five percent (25%) or more of the Sublease
Premises shall be taken, Sublandlord and Subtenant shall each have the right
to terminate the Sublease. If either Subtenant or Sublandlord intends to
terminate the Sublease such party shall notify the other within sixty (60) days
after such taking and the Sublease shall be terminated on the date set forth in
such notice, which date shall be within thirty (30) days of the date of such
notice. If a part or all of the Sublease Premises be taken, all compensation
awarded upon such taking shall go to the Sublandlord and the Subtenant shall
have no claim thereto but Sublandlord shall cooperate with Subtenant, to
recover compensation for damage to or taking of any Alterations, Tenant
Improvements paid for by Subtenant from sources other than the Work Allowance,
fixtures and equipment, and for Subtenant's moving costs.
29. EFFECTS OF CONVEYANCE: Subject to the last sentence of this Article
29, the term "Sublandlord" as used in this Sublease, means only the owner for
the time being of the Sublease Premises so that, in the event of any sale or
other conveyance of the Sublease Premises, or in the event of a master lease of
the Sublease Premises, the Sublandlord shall be and hereby is entirely freed
and relieved of all covenants and obligations of the "Sublandlord" hereunder,
and it shall be deemed and construed, without further agreement between the
parties, or the master tenant of the Sublease Premises, that the purchaser or
master tenant of the Sublease Premises has assumed and agreed to carry out any
and all covenants and obligations of the Sublandlord hereunder. Such transferor
shall transfer and deliver Subtenant's security deposit to the purchaser at any
such sale or the master tenant of the Sublease Premises, and thereupon the such
transferor shall be discharged from any further liability in reference thereto.
The release of Sublandlord from any liability accruing after the date
Sublandlord transfers title to the Sublease Premises and the agreement by
Subtenant to look solely to Sublandlord's successor-in-interest shall be
conditioned upon (a) delivery to Sublandlord's successor of any and all funds
in the hands of Sublandlord at the time of the transfer in which Subtenant has
an interest, or in lieu thereof, delivery of such funds to Subtenant; and (b)
the assumption, in writing, of all of Sublandlord's obligations under the
Sublease by Sublandlord's successor in interest.
30. SUBORDINATION: This Sublease is subject and subordinate to ground and
underlying leases, mortgages and deeds of trust (collectively "Encumbrances")
which may now or hereafter affect the Sublease Premises, to any covenants,
conditions or restrictions of record, and to all renewals, modifications,
consolidations, replacements and extensions thereof; provided, that the holder
or holders of any such Encumbrance ("holder") execute a non-disturbance
agreement in a form satisfactory to Subtenant to the effect that the Sublease
shall not be terminated and shall be recognized in the event of any default
under any ground lease or underlying lease or any foreclosure or sale pursuant
to the terms of any mortgage or deed of trust, so long as Subtenant is not in
default (after the expiration of all applicable cure periods) under the terms
of the Sublease and provided Subtenant attorns to the Holder as the successor
Sublandlord.
If any Holder shall require that this Sublease be prior and superior to
such Holder's Encumbrance, within fifteen (15) days after written request of
Sublandlord to Subtenant, Subtenant shall execute, have acknowledged and
deliver any and all documents or instruments, in the form presented to
Subtenant, which Sublandlord or Holder deems necessary or desirable for such
purposes.
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<PAGE> 25
Notwithstanding anything to the contrary set forth in this paragraph
Subtenant hereby attorns and agrees to attorn to any entity purchasing or
otherwise acquiring the Sublease Premises at any sale or other proceeding or
pursuant to the exercise of any other rights, powers or remedies under such
encumbrance.
Sublandlord agrees to deliver to Subtenant within thirty (30) days after
the date hereof, a non-disturbance agreement in form and substance reasonably
satisfactory to Subtenant, executed by any ground lessor or lender which
currently holds a ground lease, mortgage or deed of trust which encumbers any
property of which the Sublease Premises are a part as of the date of execution
of this Sublease. If Sublandlord fails to obtain such non-disturbance
agreements, then Subtenant shall have the right, but not the obligation, to
terminate this Sublease by giving Sublandlord written notice thereof.
31. WAIVER. The waiver by Sublandlord of any breach of any term, covenant
or condition, herein contained shall not be deemed to be a waiver of such term,
covenant or condition or any subsequent breach of the same or any other term,
covenant or condition herein contained. The subsequent acceptance of rent
hereunder by Sublandlord shall not be deemed to be a waiver of any preceding
breach by Subtenant of any term, covenant or condition of this Sublease, other
than the failure of Subtenant to pay the particular rental so accepted,
regardless of Sublandlord's knowledge of such preceding breach at the time of
acceptance of such rent. No payment by Subtenant or receipt by Sublandlord of a
lesser amount than any installment of rent due shall be deemed to be other than
payment on account of the amount due. No delay or omission in the exercise of
any right or remedy by Sublandlord shall impair such right or remedy or be
construed as a waiver thereof by Sublandlord. No act or conduct of Sublandlord,
including, without limitation, the acceptance of keys to the Sublease Premises,
shall constitute acceptance of the surrender of the Sublease Premises by
Subtenant before the Expiration Date (only written notice from Sublandlord to
Subtenant of acceptance shall constitute such acceptance of surrender of the
Sublease Premises). Sublandlord's consent to or approval of any act by
Subtenant which require Sublandlord's consent or approvals shall not be deemed
to waive or render unnecessary Sublandlord's consent to or approval of any
subsequent act by Subtenant.
32. HOLDING OVER. Any holding over after the termination or Expiration
Date with Sublandlord's consent, shall be construed to be a tenancy from month
to month, terminable on thirty (30) days written notice from either party, and
Subtenant shall pay Base Monthly Rent to Sublandlord at a rate equal to (i) one
hundred twenty-five percent (125%) of the base Monthly Rent due in the month
preceding the termination or Expiration Date plus all other amounts payable by
Subtenant under this Sublease. Any holding over shall otherwise be on the terms
and conditions herein specified, except those provisions relating to the
Sublease Term and any options to extend or renew, which provisions shall be of
no further force and effect following the expiration of the applicable exercise
period.
33. SUCCESSORS AND ASSIGNS: The covenants and conditions herein contained
shall, apply to and bind the heirs, successors, executors, administrators and
assigns of all the parties hereto; and all of the parties hereto shall be
jointly and severally liable hereunder.
34. ESTOPPEL CERTIFICATES: Each party shall at any time during the
Sublease Term, within fifteen (15) days following written notice from the
other, execute and deliver to the
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requesting party a statement in writing certifying, if true, (i) that this
Sublease is unmodified and in full force and effect (or, if modified, stating
the nature of such modification); (ii) the date to which the rent and other
charges are paid in advance, if any; (iii) acknowledging that there are not, to
such party's knowledge, any uncured defaults on the part of the requesting
party hereunder or specifying such defaults if they are claimed; and (iv) such
other information regarding the status of the Sublease as the requesting party
may reasonably request. Any such statement may be conclusively relied upon by
any prospective purchaser or encumbrance of the Sublease Premises or
Sublandlord's interest therein.
35. RIGHT OF FIRST OFFER TO EXTEND TERM: If Sublandlord desires at any
time to release the Building or any portion thereof for the period after the
expiration of the Sublease Term, Sublandlord shall give Subtenant notice
("First Notice") of the business terms on which Sublandlord would be willing to
lease the space in the Building. Subtenant shall have thirty (30) days
following receipt of the First Notice to give Sublandlord notice of its
intention to lease such space in the Building on the business terms set forth
in the First Notice. The parties shall then negotiate in good faith to reach an
agreement regarding the remaining terms and conditions of the lease and shall
enter into a lease for the space in the Building. If Subtenant fails to notify
Sublandlord within the thirty (30) day period, Sublandlord shall be free to
lease the space in the Building to a third party without re-offering it to
Subtenant, provided such lease may not be on terms more favorable to the third
party than those offered to Subtenant in the First Notice. In the event the
Sublandlord is unable to lease the space in the Building to a third party on
the business terms provided in the First Notice, and Sublandlord desires to
lease the space in the Building to a third party on the business terms more
favorable to the third party than those offered to Subtenant, Sublandlord shall
give Subtenant notice ("Subsequent Notice:) of the proposed new business terms
on which Sublandlord desires to lease the space in the Building to a third
party. Subtenant shall have fifteen (15) days following receipt of a Subsequent
Notice to give Sublandlord notice of its intention to lease the space in the
Building on the business terms contained in such Subsequent Notice. If
Subtenant fails to notify Sublandlord within the fifteen (15) day period,
Sublandlord shall be free to lease the space in the Building to a third party
without re-offering it to Subtenant provided such lease may not be on terms
more favorable to the third party than those offered to Subtenant in a
Subsequent Notice.
36. QUIET ENJOYMENT: Upon Subtenant's faithful and timely performance of
all the terms and covenants of the Sublease and except as otherwise provided in
this Sublease, Subtenant shall quietly have and hold the Sublease Premises for
the Sublease Term and any extensions thereof.
37. BROKERS: Subtenant represents it has not utilized or contacted a real
estate broker or finder with respect to this Sublease other than MacMillan,
Moore & Buchanan, Inc. and Subtenant agrees to indemnify, defend and hold
Sublandlord harmless against any claim, cost, liability or cause of action
asserted by any other broker or finder claiming through Subtenant. Sublandlord
agrees to pay the leasing commission of Cawley International, and to cause
Cawley International to shares its commission with MacMillan, Moore & Buchanan
per separate agreement. Subtenant shall have no responsibility for the payment
of such commissions to Cawley International and MacMillan, Moore & Buchanan.
Sublandlord represents that it has not utilized or contracted with a real estate
broker or finder with respect to this Sublease other than Cawley International
and agrees to indemnify, defend and hold Subtenant harmless against any claim,
cost, liability or cause of action asserted by any broker or finder claiming
through Sublandlord.
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38. PARKING. All parking shall be free of charge to Subtenant. Sublandlord
shall provide adequate lighting for the parking areas at Sublandlord's cost.
39. HOURS OF OPERATION OF BUILDING. Subtenant shall have access to the
Sublease Premises and the Building for purposes of operation of its business
twenty-four (24) hours per day each day of the year.
40. COMMUNICATIONS DISHES. Subtenant shall have the right to install
communications dishes (i) on the roof of the Building; and (ii) on a pad in the
parking area on the Parcel, in accordance with all Governmental Requirements.
Subtenant shall install the communications dishes at its own cost, and shall be
responsible for any damage caused by the installation of the communications
dishes. At the end of the Sublease Term, Subtenant shall remove the
communications dishes from their locations and repair any damage caused by such
removal, all at Subtenant's sole cost and expense.
41. MASTER LANDLORD'S CONSENT.
This Sublease is subject to the consent of the Master Landlord. Sublandlord
and Subtenant shall use reasonable efforts to obtain the consent of Master
Landlord, pursuant to a written consent reasonably satisfactory to Subtenant. In
the event the Master Landlord does not so consent to this Sublease within thirty
(30) days after the full execution of this Sublease by Sublandlord and
Subtenant, Subtenant may terminate this Sublease upon written notice to
Sublandlord. Sublandlord and Subtenant agree to cooperate with each other in
obtaining the consent of Master Landlord and in executing the form of consent to
sublease as may be reasonably required in connection with obtaining Master
Landlord's consent. In the event Master Landlord does not consent to this
Sublease within sixty (60) days after the full execution of this Sublease by
Sublandlord and Subtenant, either party may terminate this Sublease upon written
notice to the other.
Master Landlord's consent shall provide that in the event Sublandlord
defaults under the Master Lease, Master Landlord shall notify Subtenant.
Thereafter, Subtenant shall remain in possession of the Sublease Premises on a
direct lease with the Master Landlord on the same terms and conditions as
contained in the Master Lease, except that the termination date shall be the
termination date of this Sublease.
42. MISCELLANEOUS PROVISIONS:
A. Rent: All monetary sums due from Subtenant to Sublandlord under
this Sublease, including, without limitation those referred to as "additional
rent", shall be deemed to be rent.
B. Rights and Remedies: All rights and remedies hereunder are
cumulative and not alternative to the extent permitted by law and are in
addition to all other rights and remedies in law and in equity.
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C. Survival of Indemnitees: All indemnification, defense, and hold
harmless obligations of Sublandlord and Subtenant under this Sublease shall
survive the expiration or sooner termination of this Sublease.
D. Severability: If any term or provision of this Sublease is held
unenforceable or invalid by a court of competent jurisdiction, the remainder of
the Sublease shall not be invalidated thereby but shall be enforceable in
accordance with its terms, omitting the invalid or unenforceable term.
E. Choice of Law: This Sublease shall be governed by and construed
in accordance with California law.
F. Time: Time is of the essence hereunder.
G. Entire Agreement: This instrument contains all of the agreements
and conditions made between the parties hereto and may not be modified orally
or in any other manner other than by an agreement in writing signed by all of
the parties hereto or their respective successors in interest. This Sublease
supersedes and revokes all previous negotiations, letters of intent, lease
proposals, brochures, agreements, representations, promises, warranties, and
understandings, whether oral or in writing, between the parties or their
respective representatives or any other person purporting to represent
Sublandlord or Subtenant.
H. The parties agree that this Sublease constitutes confidential
information of the parties. Each party agrees that except for the recordation
of the Memorandum of Sublease as and when described in this Sublease, or as
required by law, it shall not disclose the contents of this Sublease to any
third party other than potential lenders without the prior written consent of
the other party.
I. Representations: Subtenant acknowledges that neither Sublandlord
nor any of its employees or agents have made any agreements, representations,
warranties or promises with respect to the demised Sublease Premises or with
respect to present or future rents, expenses, operations, tenancies or any
other matter. Except as herein expressly set forth herein, Subtenant relied on
no statement of Sublandlord or its employees or agents for that purpose.
J. No Presumption Against Drafter: Sublandlord and Subtenant
understand, agree and acknowledge that: (i) this Sublease has been freely
negotiated by both parties; and (ii) that, in any controversy, dispute, or
contest over the meaning, interpretation, validity, or enforceability of this
Sublease or any of its terms or conditions, there shall be no inference,
presumption, or conclusion drawn whatsoever against either party by virtue of
that party having drafted this Sublease or any portion thereof.
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<PAGE> 29
K. Headings: The headings or titles to the Articles of this
Sublease are not a part of this Sublease and shall have no effect upon the
construction or interpretation of any part thereof.
L. Exhibits: All exhibits referred to are attached to this Sublease
and incorporated by reference and are set forth below:
Exhibit "A" Master Lease
Exhibit "B" Legal Description of Parcel
Exhibit "C" Site Plan
Exhibit "D" Sublandlord's Work
Exhibit "E" Deferred Maintenance Items
Exhibit "F" Description of Final Tenant Improvement Plans
M. Reasonable Consent. Except as limited elsewhere in this
Sublease, wherever in this Sublease Sublandlord or Subtenant is required to
give its consent or approval to any action on the part of the other, such
consent or approval shall not be unreasonably withheld or delayed.
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<PAGE> 30
N. Memorandum of Sublease. At such time as Sublandlord becomes the
owner of the Parcel, the parties agree to execute in recordable form a
Memorandum of Lease identifying the Sublease Premises hereunder, the Term of
this Lease and Subtenant's right of first refusal, all as provided in this
Sublease. The Memorandum of Lease shall be recorded in Santa Clara County.
IN WITNESS WHEREOF, Sublandlord and Subtenant have executed this Sublease
on the dates indicated below.
Sublandlord:
XILINX, INC.
By: /s/ [Signature Illegible]
---------------------------------
Title: Vice President
------------------------------
Date Executed: 10/21/99
----------------------
And: /s/ [Signature Illegible]
--------------------------------
Title: Asst. Secy.
------------------------------
Date Executed: 10/21/99
----------------------
Subtenant:
QUANTUM CORPORATION
By: /s/ NORM CLAUS
---------------------------------
Title: VP Real Estate & Corp. Svcs.
------------------------------
Date Executed: 10/18/99
----------------------
And: /s/ [Signature Illegible]
--------------------------------
Title: V.P. Finance & General Counsel
------------------------------
Date Executed: 10/18/99
----------------------
27
<PAGE> 31
EXHIBIT A
STANDARD FORM LEASE
PARTIES: This Lease, executed in duplicate at Cupertino, California, on July 31,
1999, by and between Mission West Properties, L.P., a Delaware limited
partnership, and Xilinx, Inc., a Delaware Corporation, hereinafter called
respectively Lessor and Lessee, without regard to number or gender.
USE: Witnesseth: That Lessor hereby leases to Lessee, and Lessee hires from
Lessor, for the purpose of conducting therein office, research and development,
light manufacturing, and warehouse activities, and any other legal activity;
and for no other purpose without obtaining the prior written consent of Lessor.
PREMISES: The real property with appurtenances as shown on Exhibit A (the
"Premises") situated in the City of San Jose, County of Santa Clara, State of
California, and more particularly described as follows:
The Premises includes 72,426 square feet of building, including all
improvements thereto, as shown on Exhibit A including the right to use all
the parking spaces at the Premises. The address for the Premises is 2001
Logic Drive, San Jose, California. Lessee's pro-rata share of the Premises
is 100%.
TERM: The term shall be for one hundred twenty (120) months unless extended
pursuant to Section 35 of this Lease (the "Lease Term"), commencing on July 1,
1999 (the "Commencement Date") and ending one hundred twenty (120) months
thereafter.
RENT: Base rent shall be payable in monthly installments as follows:
BASE RENT
Months 1 through 14
Monthly base rent to increase by 4% on the annual anniversary of the
Commencement Date each year during the Lease Term over the prior year's rent.
Base rent as scheduled above shall be payable in advance on or before the first
day of each calendar month during the Lease Term. The term "Rent," as used
herein, shall be deemed to be and to mean the base monthly rent and all other
sums required to be paid by Lessee pursuant to the terms of this Lease. Rent
shall be paid in lawful money of the United States of America without effect or
deduction, and shall be paid to Lessor at such place or places as may be
designated from time to time by Lessor. Rent for any period less than a calendar
month shall be a pro rata portion of the monthly installment. Upon execution of
this Lease, Lessee shall deposit with Lessor the sum of. On September 1, 1999,
Lessee shall deposit with Lessor the sum of.
LATE CHARGES: Lessor hereby acknowledges that a late payment made by Lessee to
Lessor of Rent and other sums due hereunder will cause Lessor to incur costs not
contemplated by this Lease, the exact amount of which will be extremely
difficult to ascertain. Such costs include, but are not limited to, processing
and accounting charges, and late charges, which may be imposed on Lessor
according to the terms of any mortgage or trust deed covering the Premises.
Accordingly, if any installment of Rent or any other sum due from Lessee is not
received by Lessor or Lessor's designee within ten (10) days after such amount
is due, Lessee shall pay to Lessor a late charge equal to five (5%) percent of
such overdue amount. The parties hereby agree that such late charge represents a
fair and reasonable estimate of the costs Lessor will incur by reason of late
payments made by Lessee. Acceptance of such late charges by Lessor shall in no
event constitute a waiver of Lessee's default with respect to such overdue
amount, nor shall it prevent Lessor from exercising any of the other rights and
remedies granted hereunder. Notwithstanding the above, Lessee shall not be
required to pay a late charge if it is the result of a non-recurring unusual
event such as an accounting error.
SECURITY DEPOSIT: Lessee shall deposit with Lessor the sum of (the "Security
Deposit"). The Security Deposit shall be held by Lessor as security for the
faithful performance by Lessee of all of the terms, covenants, and conditions of
this Lease applicable to Lessee. If Lessee commits a default as provided for
herein, including but not limited to a default with respect to the provisions
contained herein relating to the condition of the Premises, Lessor may (but
shall not be required to) use, apply or retain all or any part of the Security
Deposit for the payment of any amount which Lessor may spend by reason of
default by Lessee. If any portion of the Security Deposit is so used or applied,
<PAGE> 32
Lessee shall, within ten days after written demand therefor, deposit cash with
Lessor in an amount sufficient to restore the Security Deposit to its original
amount. Lessee's failure to do so shall be a default by Lessee. Any attempt by
Lessee to transfer or encumber its interest in the Security Deposit shall be
null and void. Upon execution of this Lease, Lessee shall deposit with Lessor
the Security Deposit. Notwithstanding the above, Lessor agrees to waive the
requirement for Lessee to make a Security Deposit provided Lessee's
shareholder's equity exceeds $100 million. If at any time during this Lease,
Lessee's shareholder's equity is less than $100 million, Lessee shall deposit
with Lessor the Security Deposit referenced above within ten days after the
issuance of Lessee's financial statements indicating the reduction in
shareholder's equity below $100 million. If Lessee fails to make the Security
Deposit as required, Lessee shall be deemed to be in default per Section 14.1
(a) of this Lease.
QUIET ENJOYMENT: Lessor covenants and agrees with Lessee that upon Lessee
paying Rent and performing its covenants and conditions under this Lease,
Lessee shall and may peaceably and quietly have, hold and enjoy the Premises
for the Lease Term, subject, however, to the rights reserved by Lessor
hereunder.
IT IS FURTHER MUTUALLY AGREED BETWEEN THE PARTIES AS FOLLOWS:
1. POSSESSION: Possession shall be deemed tendered and the term shall commence
on the Commencement Date. Rent shall commence on the Commencement Date.
2. LESSEE'S IMPROVEMENTS: As a material inducement to the execution and
delivery of this Lease by Lessor, Lessee is leasing the Premises in an "AS IS"
physical condition and in an "AS IS" state of repair.
2.1 ACCEPTANCE OF PREMISES AND COVENANTS TO SURRENDER: Lessee agrees on the last
day of the Lease Term, or on the sooner termination of this Lease, to surrender
the Premises to Lessor in Good Condition and Repair. Good Condition and Repair
("Good Condition and Repair") shall not mean original condition, but shall mean
that the Premises are in a commercially acceptable condition suitable for
occupancy by a reasonable lessee. The interior walls of all office and warehouse
areas, the floors of all office and warehouse areas, all suspended ceilings and
any carpeting are to be cleaned and in Good Condition and Repair. Lessee, on or
before the end of the Lease Term or sooner termination of this Lease, shall
remove all its personal property and trade fixtures from the Premises, and all
such property not so removed shall be deemed to be abandoned by Lessee. Lessee
shall reimburse Lessor for all disposition costs incurred by Lessor relative to
Lessee's abandoned property. If the Premises are not surrendered at the end of
the Lease Term or earlier termination of this Lease, Lessee shall indemnify
Lessor against loss or liability resulting from any delay caused by Lessee in
surrendering the Premises including, without limitation, any claims made by any
succeeding Lessee founded on such delay.
3. USES PROHIBITED: Lessee shall not commit, or suffer to be committed, any
waste upon the Premises, or any nuisance, or other act or thing which may
disturb the quiet enjoyment of any other tenant in or around the buildings in
which the subject Premises are located or allow any sale by auction upon the
Premises, or allow the Premises to be used for any improper, immoral, unlawful
or objectionable purpose, or place any loads upon the floor, walls, or ceiling
which may endanger the structure, or use any machinery or apparatus which will
in any manner vibrate or shake the Premises or the building of which it is a
part, or place any harmful liquids in the drainage system of the building. No
waste materials or refuse shall be dumped upon or permitted to remain upon any
part of the Premises outside of the building proper. No materials, supplies,
equipment, finished products or semi-finished products, raw materials or
articles of any nature shall be store upon or permitted to remain on any portion
of the Premises outside of the building structure, unless approved by the local,
state, federal or other applicable governing authority. Lessor consents to
Lessee's use of materials which are incidental to the normal, day-to-day
operations of any office user, such as copier fluids, cleaning materials, etc.,
but this does not relieve Lessee of any of its obligations not to contaminate
the Premises and related real property or violate any Hazardous Materials Laws.
4. ALTERATIONS AND ADDITIONS: Lessee shall not make, or suffer to be made, any
alteration or addition to said Premises, or any party thereof, without the
express, advance written consent of Lessor; any addition or alteration to said
Premises, except movable furniture and trade fixtures, shall become at once a
part of the realty and belong to Lessor at the end of the Lease Term or earlier
termination of this Lease. Alterations and additions which are not deemed as
trade fixtures shall include HVAC systems, lighting systems, electrical
systems, partitioning, carpeting, or any other installation which has become
and integral part of the Premises. Lessee agrees that it will not proceed to
make such alterations or additions until all required government permits have
been obtained and after having obtained consent from Lessor to do so, until
five (5) days from the receipt of such consent, so
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that Lessor may post appropriate notices to avoid any liability to contractors
or material suppliers for payment of Lessor's improvements. Lessee shall at all
times permit such notices to be posted and to remain posted until the
completion of work. At the end of the Lease Term or earlier termination of this
Lease, Lessee shall remove and shall be required to remove its special tenant
improvements, all related equipment, and any additions or alterations
installed by Lessee at or during the Lease Term and Lessee shall return the
Premises to the condition that existed before the installation of the tenant
improvements. Notwithstanding the above, Lessor agrees to allow any reasonable
alterations and improvements and will use its best efforts to notify Lessee at
the time of approval if such improvements or alterations are to be removed at
the end of the Lease Term or earlier termination of this Lease.
Notwithstanding the above, Lessee shall have the right, during the term of this
Lease, to make improvements to the Premises at their sole cost and expense of
Five Hundred Thousand Dollars ($500,000) with no approval from Lessor, provided
they are not structural and subject to the requirement to remove the subject
improvements at the end of the Lease Term.
5. MAINTENANCE OF PREMISES:
(a) Lessee shall at its sole cost and expense keep, repair and maintain the
interior of the Premises, including but not limited to, all lighting
systems, temperature control systems, and plumbing systems in Good
Condition and Repair, including any required replacements. Lessee shall
maintain all wall surfaces and floor coverings in Good Condition and
Repair, free of holes, gouges, or defacements and provide interior and
exterior window washing as needed.
(b) Lessee shall, at Lessee's expense, keep, repair, and maintain in Good
Condition and Repair including replacements (based on a pro-rata share of
(i) costs based on square footage or (ii) costs directly related to
Lessee's use of the Premises) the following:
1. The exterior of the building, any appurtenances and every part
thereof, including but not limited to, glazing, sidewalks, parking
areas, electrical systems, HVAC systems, roof membrane, and painting
of the exterior walls.
2. The HVAC by a services contract with a licensed air conditioning
and heating contractor which contract shall provide for a minimum of
quarterly maintenance of all air conditioning and heating equipment at
the Premises including HVAC repairs or replacements which are either
excluded from such service contract or any existing equipment
warranties.
3. The landscaping by a landscape contractor to water, maintain, trim
and replace, when necessary, any shrubbery and landscaping at the
Premises.
4. The roof membrane by a service contract with a licensed reputable
roofing contractor which contract shall provide for a minimum of
semi-annual maintenance, cleaning of storm gutters, drains, removing
of debris, and trimming overhanging trees, repair of the roof and
application of a finish coat, every five years to the building at the
Premises.
5. Exterior pest control.
6. Fire monitoring services.
7. Pro-rata share of Logic Drive maintenance and repair costs.
(c) Lessee hereby waives any and all rights to make repairs at the expense
of Lessor as provided in Section 1942 of the Civil Code of the State of
California, and all rights provided for by Section 1941 of said Civil Code.
(d) Lessor shall be responsible for the repair of any structural defects in
the Premises including the roof structure (not membrane), exterior walls
and foundation during the Lease Term.
6. INSURANCE:
6. INSURANCE:
A) HAZARD INSURANCE: Lessee shall not use, or permit said Premises, or any
part thereof, to be used, for any purpose other than that for which said
Premises are hereby leased; and no one shall be made or permitted to be made of
the Premises, nor acts done, which may cause a cancellation of any insurance
policy covering said building, or any part thereof, nor shall Lessee sell or
permit to be kept, used or sold, in or about said Premises, any article which
may be prohibited by an all risk insurance policy. Lessee shall, at its sole
cost and expense, comply with any and all requirements, pertaining to said
Premises, of any insurance organization or company, necessary for the
maintenance of reasonable all risk insurance,
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covering said building and appurtenances. Lessee agrees to purchase and
keep in force all risk insurance, not including earthquake and flood,
covering loss or damage to the Premises in an amount equal to the full
replacement cost of the Premises as determined by Lessor, with proceeds
payable to Lessor. Lessee acknowledges that the insurance referenced above
does not include coverage for Lessee's personal property. In the event of a
loss per the insurance provisions of this paragraph, Lessee shall be
responsible for all deductibles. It is agreed that the full replacement
cost of the Premises as of the Commencement Date is eight million five
hundred thousand dollars ($8,500,000).
B) LOSS OF RENTS INSURANCE: Lessee shall maintain in full force and affect
at Lessee's sole cost, a policy of rental loss insurance, in an amount
equal to the amount of Rent payable by Lessee commencing on the date of
loss for the next ensuing one (1) year, as reasonably determined by Lessor
with proceeds payable to Lessor ("Loss of Rents Insurance"). It is agreed
that as of this Commencement Date the amount of Rent payable under the Loss
of Rents Insurance coverage shall be two million two hundred fifty thousand
dollars ($2,250,000).
C) LIABILITY AND PROPERTY DAMAGE INSURANCE: Lessee, as a material part of
the consideration to be rendered to Lessor, hereby waives all claims
against Lessor and Lessor's Agents for damages to goods, wares and
merchandise, and all other personal property in, upon or about said
Premises, and for injuries to persons in, upon or about said Premises, from
any cause arising at any time, and Lessee will hold Lessor and Lessor's
Agents exempt and harmless from any damage or injury to any person, or to
the goods, ware and merchandise and all other personal property of any
person, arising from the use or occupancy of the Premises by Lessee, or
from the failure of Lessee to keep the Premises in Good Condition and
Repair, as herein provided. Lessee shall, at Lessee's sole cost, secure and
keep in force a standard policy of commercial general liability insurance
and property damage policy covering the Premises and all related areas
insuring the Lessee having a combined single limit for both bodily injury,
death and property damage in an amount not less than five million dollars
($5,000,000.00). The limits of said insurance shall not, however, limit the
liability of Lessee hereunder. Lessee shall, at its sold cost and expense,
comply with all of the insurance requirements of all local, municipal,
state and federal authorities now in force, or which may hereafter be in
force, pertaining to Lessee's use and occupancy of the said Premises.
D) PERSONAL PROPERTY INSURANCE: Lessee shall obtain, at Lessee's sole cost
and expense, a policy of fire and extended coverage insurance including
coverage for direct physical loss special form, and a sprinkler leakage
endorsement insuring the personal property of Lessee. The proceeds from any
personal property damage policy shall be payable to Lessee.
All insurance policies required above shall: (i) provide for a certificate of
insurance evidencing the insurance required herein, being deposited with Lessor
ten (10) days prior to the Commencement Date, and upon each renewal, such
certificates shall be provided 30 days prior to the expiration date of such
coverage, (ii) be in a form reasonable satisfactory to Lessor and shall provide
the coverage required by Lessee in this Lease, (iii) be carried with companies
with a Best Rating of A+ minimum, (iv) specifically provide that such policies
shall not be subject to cancellation, reduction of coverage, or other change
except after 30 days prior written notice to Lessor, and (v) name Lessor,
Lessor's lender, and any other party with an insurable interest in the Premises
as additional insureds by endorsement to policy.
Lessor and Lessee hereby waive any rights each may have against the other
related to any loss or damage caused to Lessor or Lessee as the case may be, or
to the Premises or its contents, and which may arise from any risk generally
covered by all risk insurance policy. The parties shall provide that their
respective insurance policies insuring the property or the personal property
include a waiver of any right of subrogation which said insurance company may
have against Lessor or Lessee, as the case may be.
7. ABANDONMENT: Lessee shall not vacate or abandon the Premises at any time
during the Lease Term; and if Lessee shall abandon, vacate or surrender said
Premises, or be dispossessed by process of law, or otherwise, any personal
property belonging to Lessee and left on the Premises shall be deemed to be
abandoned, at the option of Lessor. Notwithstanding the above, the Premises
shall not be considered vacated or abandoned if Lessee maintains the Premises
in Good Condition and Repair, provides security and is not in default.
8. FREE FROM LIENS: Lessee shall keep the subject Premises and the property in
which the subject Premises are situated, free from any and all liens including
but not limited to liens arising out of any work performed, materials
furnished, or obligations
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incurred by Lessee. However, the Lessor shall allow Lessee to contest a lien
claim, so long as the claim is discharged prior to any foreclosure proceeding
being initiated against the property and provided Lessee provides Lessor a bond
if the lien exceeds $5,000.
9. COMPLIANCE WITH GOVERNMENTAL REGULATIONS: Lessee shall, at its sole cost and
expense, comply with all of the requirements of all local, municipal, state and
federal authorities now in force, or which may hereafter be in force, pertaining
to the Premises, and shall faithfully observe in the use and occupancy of the
Premises all local and municipal ordinances and state and federal statutes now
in force or which may hereafter be in force.
10. INTENTIONALLY OMITTED.
11. ADVERTISEMENTS AND SIGNS: Lessee shall not place or permit to be placed, in,
upon or about the Premises any unusual or extraordinary signs, or any signs not
approved by the city, local, state, federal or other applicable governing
authority. Lessee shall not place, or permit to placed upon the Premises, any
signs, advertisements or notices without the written consent of the Lessor, and
such consent shall not be unreasonably withheld. A sign so placed on the
Premises shall be so placed upon the understanding and agreement that Lessee
will remove same at the end of the Lease Term or earlier termination of this
Lease and repair any damage or injury to the Premises caused thereby, and if not
so removed by Lessee, then Lessor may have the same removed at Lessee's expense.
12. UTILITIES: Lessee shall pay for all water, gas, heat, light, power,
telephone and other utilities supplied to the Premises. Any charges for usage,
PG&E, and telephone site service or related fees shall be the obligation of
Lessee and paid for by Lessee. If any such services are not separately metered
to Lessee, Lessee shall pay a reasonably proportion of all charges which are
jointly metered, the determination to be made by Lessor acting reasonably and on
any equitable basis. Lessor and Lessee agree that Lessor shall not be liable to
Lessee for any disruption in any of the utility services to the Premises.
13. ATTORNEY'S FEES: In case suit should be brought for the possession of the
Premises, for the recovery of any sum due hereunder, because of the breach of
any other covenant herein, or to enforce, protect, or establish any term,
conditions, or covenant of this Lease or the right of either party hereunder,
the losing party shall pay to the Prevailing Party reasonable attorney's fees
which shall be deemed to have accrued on the commencement of such action and
shall be enforceable whether or not such action is prosecuted to judgment. The
term "Prevailing Party" shall mean the party that received substantially the
relief requested, whether by settlement, dismissal, summary judgment, judgment,
or otherwise.
14.1 DEFAULT. The occurrence of any of the following shall constitute a default
and breach of this Lease by Lessee: a) Any failure by Lessee to pay Rent or to
make any other payment required to be made by Lessee hereunder when due if not
cured within ten (10) days after written notice thereof by Lessor to Lessee; b)
The abandonment or vacation of the Premises by Lessee except as provided in
Section 7; c) A failure by Lessee to observe and perform any other provision of
this Lease to be observed or performed by Lessee, where such failure continues
for thirty days after written notice thereof by Lessor to Lessee; provided,
however, that if the nature of such default is such that the same cannot be
reasonably cured within such thirty (30) day period, Lessee shall not be deemed
to be in default if Lessee shall, within such period, commence such cure and
thereafter diligently prosecute the same to completion; d) The making by Lessee
of any general assignment for the benefit of creditors; the filing by or against
Lessee of a petition to have Lessee adjudged a bankrupt or of a petition for
reorganization or arrangement under any law relating to bankruptcy; e) the
appointment of a trustee or receiver to take possession of substantially all of
Lessee's assets or Lessee's interest in this Lease, or the attachment, execution
or other judicial seizure of substantially all of Lessee's assets located at the
Premises or of Lessee's interest in this Lease.
14.2 SURRENDER OF LEASE: In the event of any such default by Lessee, then in
addition to any other remedies available to Lessor at law or in equity, Lessor
shall have the immediate option to terminate this Lease before the end of the
Lease Term and all rights of Lessee hereunder, by giving written notice of such
intention to terminate. In the event that Lessor terminates this Lease due to a
default of Lessee, then Lessor may recover from Lessee: a) the worth at the time
of award of any unpaid Rent which had been earned at the time of such
termination; plus b) the worth at the time of award of unpaid Rent which would
have been earned after termination until the time of award exceeding the amount
of such rental loss that the Lessee proves could have been reasonably avoided;
plus c) the worth at the time of award of the amount by which the unpaid Rent
for the balance of the Lease Term after
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the time of award exceeds the amount of such rental loss that the Lessee proves
could have been reasonably avoided; plus d) any other amount necessary to
compensate Lessor for all the detriment proximately caused by Lessee's failure
to perform his obligations under this Lease of which in the ordinary course of
things would be likely to result therefrom; and a) at Lessor's election, such
other amounts in addition to or in lien of the foregoing as may be permitted
from time to time by applicable California law. As used in (a) and (b) above,
the "worth at the time of award" is computed by allowing interest at the rate of
Wells Fargo's prime rate plus two percent (2%) per annum. As used in (c) above,
the "worth at the time of award" is computed by discounting such amount at the
discount rate of the Federal Reserve Bank of San Francisco at the time of award
plus one percent (1%).
14.3 RIGHT OF ENTRY AND REMOVAL: In the event of any such default by Lessee,
Lessor shall also have the right, with or without terminating this Lease, to
re-enter the Premises and remove all persons and property from the Premises;
such property may be removed and stored in a public warehouse or elsewhere at
the cost of and for the account of Lessee.
14.4 ABANDONMENT: In the event of the vacation or abandonment, except as
provided in Section 7, of the Premises by Lessee or in the event that Lessor
shall elect to re-enter as provided in paragraph 14.3 above or shall take
possession of the Premises pursuant to legal proceeding or pursuant to any
notice provided by law, and Lessor does not elect to terminate this Lease as
provided in Section 14.2 above, then Lessor may from time to time, without
terminating this Lease, either recover all Rent as it becomes due or relet the
Premises or any part thereof for such term or terms and at such rental rates and
upon such other terms and conditions as Lessor, in its sole discretion, may deem
advisable with the right to make alterations and repairs to the Premises. In the
event that Lessor elects to relet the Premises, then Rent receive by Lessor from
such reletting shall be applied; first, to the payment of any indebtedness other
than Rent due hereunder from Lessee to Lessor; second, to the payment of any
cost of such reletting; third, to the payment of the cost of any alterations and
repairs to the Premises; fourth, to the payment of Rent due and unpaid
hereunder; and the residue, if any, shall be held by Lessor and applied to the
payment of future Rent as the same may become due and payable hereunder. Should
that portion of such Rent received from such reletting during any month, which
is applied by the payment of Rent hereunder according to the application
procedure outline above, be less than the Rent payable during that month by
Lessee hereunder, then Lessee shall pay such deficiency to Lessor immediately
upon demand therefor by Lessor. Such deficiency shall be calculated and paid
monthly. Lessee shall also pay to Lessor, as soon as ascertained, any costs and
expenses incurred by Lessor in such reletting or in making such alterations and
repairs not covered by the rentals received from such reletting.
14.5 NO IMPLIED TERMINATION: No re-entry or taking possession of the Premises by
Lessor pursuant to Section 14.3 or Section 14.4 of this Lease shall be construed
as an election to terminate this Lease unless a written notice of such intention
is given to Lease or unless the termination thereof is decreed by a court of
competent jurisdiction. Notwithstanding any reletting without termination by
Lessor because of any default by Lessee, Lessor may at any time after such
reletting elect to terminate this Lease for any such default.
15. SURRENDER OF LEASE: The voluntary or other surrender of this Lease by
Lessee, or a mutual cancellation thereof, shall not work a merger, and shall, at
the option of Lessor, terminate all or any existing sublease or sub tenancies,
or may, at the option of Lessor, operate as an assignment to him of any or all
such sublease or sub tenancies.
16. TAXES: Lessee shall pay and discharge punctually and when the same shall
become due and payable without penalty, all real estate taxes, personal property
taxes, taxes based on vehicle utilizing parking area in the Premises, taxes
computed or based on rental income (other than federal, state and municipal net
income taxes), environmental surcharges, privilege taxes, excise taxes, business
and occupation taxes, school fees or surcharges, gross receipts taxes, sales
and/or use taxes, employee taxes, occupational license taxes, water and sewer
taxes, assessments (including, but not limited to, assessments for public
improvements or benefit), assessments for local improvement and maintenance
districts, and all other governmental impositions and charges of every kind and
nature whatsoever, regardless of whether now customary or within the
contemplation of the parties hereto and regardless of whether resulting from
increased rate and/or valuation, or whether extraordinary or ordinary, general
or special, unforeseen or foreseen, or similar or dissimilar to any of the
foregoing (all of the foregoing being hereinafter collectively called "Tax" or
"Taxes") which, at any time during the Lease Term, shall be applicable or
against the Premises, or shall become due and payable and a lien or charge upon
the Premises under or by virus of any present or future laws, statutes,
ordinances, regulations, or other requirements of any governmental authority
whatsoever. The term "Environmental Surcharge"
<PAGE> 37
shall include any and all expenses, taxes, charges or penalties imposed by the
Federal Department of Energy, Federal Environmental Protection Agency, the
Federal Clean Air Act, or any regulations promulgated thereunder, or any other
local, state or federal governmental agency or entity nor or hereafter vested
with the power to impose taxes, assessments or other types of surcharges as a
means of controlling or abating environmental pollution or the use of energy in
regard to the use, operation or occupancy of the Premises. The term "Tax" shall
include, without limitation, all taxes, assessments, levies, fees, impositions
or charges levied, imposed, assessed, measured, or based in any manner
whatsoever (i) in whole or in part on the Rent payable by Lessee under this
Lease, (ii) upon or with respect to the use, possession, occupancy, leasing,
operation or management of the Premises, (iii) upon this transaction or any
document to which Lessee is a party creating or transferring an interest in or
an estate in the Premises, (iv) upon Lessee's business operations conducted at
the Premises, (v) upon, measured by or reasonably attributable to the cost or
value of Lessee's equipment, furniture, fixtures and other personal property
located on the Premises or the cost or value of any leasehold improvements made
in or to the Premises by or for Lessee, regardless of whether title to such
improvements shall be in Lessor or Lessee, or (vi) in lieu of or equivalent to
any Tax set forth in this Section 16. In the event any such Taxes are payable by
Lessor and it shall not be lawful for Lessee to reimburse Lessor for such Taxes,
then the Rent payable thereunder shall be increased to net Lessor the same net
rent after imposition of any such Tax upon Lessor as would have been payable to
Lessor prior to the imposition of any such Tax. It is the intention of the
parties that Lessor shall be free from all such Taxes and all other governmental
impositions and charges of every kind and nature whatsoever. However, nothing
contained in this Section 16 shall require Lessee to pay any Federal or State
income, franchise, estate, inheritance, succession, transfer or excess profits
tax imposed upon Lessor. If any general or special assessment is levied and
assessed against the Premises, Lessor agrees to use its best reasonable efforts
to cause the assessment to become a lien on the Premises, securing repayment of
a bond sold to finance the improvements to which the assessment relates which is
payable in installments of principal and interest over the maximum term allowed
by law. It is understood and agreed that Lessee's obligation under this
paragraph will be prorated to reflect the Commencement Date and the end of the
Lease Term. It is further understood that if Taxes cover the Premises and Lessee
does not occupy the entire Premises, the Taxes will be allocated to the portion
of the Premises occupied by Lessee based on a pro-rata square footage or other
equitable basis, as determined by Lessor.
Subject to any limitations or restrictions imposed by any deeds of trust or
mortgages now or hereafter covering or affecting the Premises, Lessee shall have
the right to contest or review the amount or validity of any Tax by appropriate
legal proceedings but which is not to be deemed or construed in any way as
relieving, modifying or extending Lessee's covenant to pay such Tax at the time
and in the manner as provided in this Section 16. However, as a condition of
Lessee's right to contest, if such contested Tax is not paid before such contest
and if the legal proceedings shall not operate to prevent or stay the collection
of the Tax so contested, Lessee shall, before instituting any such proceeding,
protect the Premises and the interest of Lessor and of the beneficiary of a deed
of trust or the mortgagee of a mortgage affecting the Premises against any lien
upon the Premises by a surety bond, issued by an insurance company acceptable to
Lessor and in an amount equal to one and one-half (1 1/2) times the amount
contested or, at Lessor's option, the amount of the contested Tax and the
interest and penalties in connection therewith. Any contest as to the validity
or amount of any Tax, whether before or after payment, shall be made by Lessee
in Lessee's own name, or if required by law, in the name of Lessor or both
Lessor and Lessee. Lessee shall defend, indemnify and hold harmless Lessor from
and against any and all costs or expenses, including attorney's fees, in
connection with any such proceedings brought by Lessee, whether in its own name
or not. Lessee shall be entitled to retain any refund of any such contested Tax
and penalties or interest thereon which have been paid by Lessee. Nothing
contained herein shall be construed as affecting or limiting Lessor's right to
contest any Tax at Lessor's expense.
17. NOTICES. Unless otherwise provided for in this Lease, any and all written
notices or other communication (the "Communication") to be given in connection
with this Lease shall be given in writing and shall be given by personal
deliver, facsimile transmission or by mailing by registered or certified mail
with postage thereon or recognized overnight courier, fully prepaid, in a sealed
envelope addressed to the intended recipient as follows:
(a) to the Lessor at: 10050 Bandley Drive
Cupertino, California 95014
Attention: Carl E. Berg
Fax No: (408) 725-1626
(b) to the Lessee at: 2100 Logic Drive
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San Jose, California
Attention: David Granoff
Fax No: (408) 377-6137
or such other addresses, facsimile number or individual as may be designated by
a Communications given by a party to the other parties as aforesaid. Any
Communication given by personal delivery shall be conclusively deemed to have
been given and received on a date it is so delivered at such address provided
that such date is a business day, otherwise on the first business day following
its receipt, and if given by registered or certified mail, on the day on which
delivery is made or refused or if given by recognized overnight courier, on the
first business day following deposit with such overnight courier and if given
by facsimile transmission, on the day on which it was transmitted provided such
day is a business day, falling which, on the next business day thereafter.
18. ENTRY BY LESSOR: Lessee shall permit Lessor and its agents to enter into and
upon said Premises at all reasonable times using the minimum amount of
interference and inconvenience to Lessee and Lessee's business, subject to any
security regulations of Lessee, for the purposes of inspecting the same or for
the purpose of maintaining the building in which said Premises are situated, or
for the purpose of making repairs, alterations or additions to any other portion
of said building, including the erection and maintenance of such scaffolding,
canopies, fences and props as may be required, without any rebate of Rent and
without any liability to Lessee for any loss of occupation or quiet enjoyment of
the Premises; and shall permit Lessor and his agents, at any time within ninety
(90) days prior to the end of the Lease Term, to place upon said Premises any
usual or ordinary "For Sale" or "For Lease" signs and exhibit the Premises to
prospective tenants at reasonable hours.
19. DESTRUCTION OF PREMISES: In the event of a partial destruction of the said
Premises during the Lease Term from any cause which is covered by Lessor's
property insurance, Lessor shall forthwith repair the same, provided such
repairs can be made within ninety (90) days after receipt of building permit
under the laws and regulations of State, Federal, County, or Municipal
authorities, but such partial destruction shall in no way annul or void this
Lease, except that Lessee shall be entitled to a proportionate reduction of Rent
while such repairs are being made to the extent of payments received by Lessor
under its Loss of Rents Insurance coverage. With respect to any partial
destruction which Lessor is obligated to repair or may elect to repair under the
terms of this paragraph, the provision of Section 1932, Subdivision 2, and of
Section 1933, Subdivision 4, of the Civil Code of the State of California are
waived by Lessee. In the event that the building in which the subject Premises
may be situated is destroyed to an extent greater than thirty-three and
one-third (33 1/3%) of the replaced cost thereof, Lessor may, at its sole
option, elect to terminate this Lease, whether the subject Premises is insured
or not. A total destruction of the building in which the subject Premises are
situated shall terminate this Lease. Notwithstanding the above, Lessor is only
obligated to repair or rebuild to the extent of available insurance proceeds
including any deductible amount. Should Lessor determine that insufficient or no
insurance proceeds are available for repair or reconstruction of Premises,
Lessor, at its sole option, may terminate the Lease. Lessee shall have the
option of continuing this Lease by agreeing to pay all repair costs to the
subject Premises.
20. ASSIGNMENT AND SUBLETTING: Lessee shall not assign this Lease, or any
interest therein, and shall not sublet the said Premises or any part thereof, or
any right or privilege appurtenant therein, or cause any other person or entity
(a bona fide subsidiary or affiliate of Lessee excepted) to occupy or use the
Premises, or any portion thereof, without the advance written consent of Lessor.
Any such assignment or subletting without such consent shall be void, and shall,
at the option of the Lessor, terminate this Lease. This Lease shall not, or
shall any interest therein, be assignable, as to the interest of Lessee, by
operation of law, without the written consent of Lessor. Notwithstanding
Lessor's obligation to provide reasonable approval, Lessor reserves the right to
withhold its consent for any proposed sublessee or assignee of Lessee if the
proposed sublessee or assignee is a user or generator of Hazardous Materials. If
Lessee desires to assign under this Lease or to sublet, all or a portion of the
subject Premises to a party other than a bona fide subsidiary or affiliate of
Lessee, Lessee shall first notify Lessor of the proposed terms and conditions of
such assignment or subletting. Lessor shall have the right of first refusal to
enter into a direct Lessor-lessee relationship with such party under such
proposed terms and conditions, in which event Lessee shall be relieved of its
obligations hereunder to the extract of the Lessor-lessee relationship entered
into between Lessor and such third party. Notwithstanding the foregoing, Lessee
amy assign this Lease to a successor in interest, whether by merger or
acquisition, provided there is no substantial reduction in the net worth of the
resulting entity and the resulting entity is not a user or generator of
Hazardous Materials. Whether or not Lessor's consent to a sublease or assignment
is required, in the event of any sublease or
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assignment, Lessee shall be and shall remain primarily liable for the
performance of all conditions, covenants, and obligations of Lessee hereunder
and, in the event of a default by an assigned or sublessee, Lessor may proceed
directly against the original Lessee hereunder and/or any other predecessor of
such assignee or sublessee without the necessity of exhausting remedies against
said assignee or sublessee. Notwithstanding the above, Lessor hereby agrees that
Lessee may sublease the Premises without Lessor's approval on a one time basis
for a maximum period of sixty (60) months with no extensions.
21. CONDEMNATION: If any part of the Premises shall be taken for any public or
quazi-public use, under any statute or by right of eminent domain or private
purchase in lieu thereof, and a part thereof remains which is susceptible of
occupation hereunder, this Lease shall as to the part so taken, terminate as of
the date title vests in the condemnor or purchaser, and the Rent payable
hereunder shall be adjusted so that the Lessee shall be required to pay for the
remainder of the Lease Term only that portion of Rent as the value of the part
remaining. The rental adjustment resulting will be computed at the same Renal
rate for the remaining part not taken; however. Lessor shall have the option to
terminate this Lease as of the date when title to the part so taken vests in the
condemnor or purchaser. If all of the Premises, or such part thereof be taken so
that there does not remain a portion susceptible for occupation hereunder, this
Lease shall thereupon terminate. If a part or all of the Premises be taken, all
compensation awarded upon such taking shall be payable to the Lessor. Lessee may
file a separate claim and be entitled to any award granted to Lessee.
22. EFFECTS OF CONVEYANCE: The term "Lessor" as used in this Lease, means only
the owner for the time being of the land and building constituting the Premises,
so that, in the event of any sale of said land or building, or in the event of a
Lease of said building, Lessor shall be and hereby is entirely freed and
relieved of all covenants and obligations of Lessor hereunder, and it shall be
deemed and construed, without further agreement between the parties and the
purchaser of any such sale, or the Lessor of the building, that the purchaser or
Lessor of the building has assumed and agreed to carry out any and all covenants
and obligations of the Lessor hereunder. If any security is given by Lessee to
secure the faithful performance of all or any of the covenants of this Lease, on
the part of Lessee, Lessor may transfer and deliver the security, as such, to
the purchaser at any such sale of the building, and thereupon the Lessor shall
be discharged from any further liability.
23. SUBORDINATION: This Lease, in the event Lessor notifies Lessee in writing,
shall be subordinate to any ground lease, deed of trust, or other hypothecation
for security now or hereafter placed upon the real property at which the
Premises are a part and to any and all advances made on the security thereof and
to renewals, modifications, replacements and extensions thereof. Lessee agrees
to promptly execute any documents which may be required to effectuate such
subordination. Notwithstanding such subordination, if Lessee is not in default
and so long as Lessee shall pay the Rent and observe and perform all of the
provisions and covenants required under this Lease, Lessee's right to quiet
possession of the Premises shall not be disturbed or affected by any
subordination.
24. WAIVER: The waiver by Lessor of any breach of any term, covenant or
condition, herein contained shall not be construed to be a waiver of such term,
covenant or condition or any subsequent breach of the term or any other term,
covenant or condition therein contained. The subsequent acceptance of Rent
hereunder by Lessor shall not be deemed to be a waiver of Lessee's breach of any
term, covenant, or condition of the Lease.
25. HOLDING OVER: Any holding over after the end of the Lease Term requires
Lessor's written approval prior to the end of the Lease Term, which,
notwithstanding any other provisions of this Lease, Lessor may withhold. Such
holding over shall be construed to be a tenancy at sufferance from month to
month. Lessee shall pay to Lessor monthly base rent equal to one and one-half
(1.5) times the monthly base rent installment due in the last month of the Lease
Term and all other additional rent and all other terms and conditions of the
Lease shall apply, so far as applicable. Holding over by Lessee without written
approval of Lessor shall subject Lessee to the liabilities and obligations
provided for in this Lease and by law, including, but not limited to those in
Section 2 of this Lease. Lessee shall indemnify and hold Lessor harmless against
any loss or liability resulting from any delay caused by Lessee in surrendering
the Premises, including without limitation, any claims made or penalties
incurred by any succeeding lessee or by Lessor. No holding over shall be deemed
or construed to exercise any option to extend or renew this Lease in lieu of
full and timely exercise of any such option as required hereunder.
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26. LESSOR'S LIABILITY: If Lessee should recover a money judgment against
Lessor arising in connection with this Lease, the judgment shall be satisfied
only out of the Lessor's interest in the Premises and neither Lessor or any of
its partners shall be liable personally for any deficiency.
27. ESTOPPEL CERTIFICATES: Lessee shall at any time during the Lease Term,
upon not less than ten (10) days prior written notice from Lessor, execute and
deliver to Lessor a statement in writing certifying that, this Lease is
unmodified and in full force and effect (or, if modified, stating the nature of
such modification) and the date to which the Rent and other charges have been
paid in advance, if any, and acknowledging that there are not, to Lessor's
knowledge, any uncured defaults on the part of Lessor hereunder or specifying
such defaults if they are claimed. Any such statement may be conclusively
relied upon by any prospective purchaser or encumbrancer of the Premises.
Lessee's failure to deliver such a statement within such time shall be
conclusive upon the Lessee that (a) this Lease is in full force and effect,
without modification except as may be represented by Lessor; (b) there are no
uncured defaults in Lessor's performance.
28. TIME: Time is of the essence of the Lease.
29. CAPTIONS: The headings on titles to the paragraphs of this Lease are not a
part of this Lease and shall have no effect upon the construction or
interpretation of any part thereof. This instrument contains all of the
agreements and conditions made between the parties hereto and may not be
modified orally or in any other manner than by an agreement in writing signed
by all of the parties hereto or their respective successors in interest.
30. PARTY NAMES: Landlord and Tenant may be used in various places in this
Lease as a substitute for Lessor and Lessee.
31. EARTHQUAKE INSURANCE: As a condition of Lessor agreeing to waive the
requirement for earthquake insurance, Lessee agrees that it will pay, as
additional Rent, which shall be included in the monthly CAC, an amount not to
exceed Thirty Thousand Dollars ($30,000) per year for earthquake insurance if
Lessor desires to obtain some form of earthquake insurance in the future, if
and when available, on terms acceptable to Lessor as determined in its sole and
absolute discretion of Lessor.
32. HABITUAL DEFAULT: Notwithstanding anything to the contrary contained in
Section 14 herein, Lessor and Lessee agree that if Lessee shall have defaulted
in the payment of Rent for three or more times during any twelve month period
during the Lease Term, then such conduct shall, at the option of the Lessor,
represent a separate event of default which cannot be cured by Lessee. Lessee
acknowledges that the purpose of this provision is to prevent repetitive
defaults by the Lessee under the Lease, which constitute a hardship to the
Lessor and deprive the Lessor of the timely performance by the Lessee hereunder.
33. HAZARDOUS MATERIALS
33.1 As used in this Lease:
a. The term "Hazardous Materials" shall mean (i) polychlorinated
bipharytic; (ii) radioactive materials and (iii) any chemical, material or
substance now or hereafter defined as or included in the definitions of
"hazardous substance," "hazardous water", "hazardous material," "extremely
hazardous waste," "restricted hazardous waste" under Section 25115, 25117
or 15122.7, or listed pursuant to Section 25140 of the California Health
and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law),
(ii) defined as "hazardous substance" under Section 25316 of the California
Health and Safety Code, Division 20, Chapter 6.8 (Carpenter-Presley-Turner
Hazardous Substances Account Act), (iii) defined as "hazardous material,"
"hazardous substance," or "hazardous waste" under Section 25501 of the
California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous
Materials Release, Response, Plans and Inventory), (iv) defined as a
"hazardous substance" under Section 25181 of the California Health and
Safety Code, Division 208, Chapter 6.7 (Underground Storage of Hazardous
Substance), (v) petroleum, (vi) asbestos, (vii) listed under Article 9 or
defined as "hazardous" or "extremely hazardous" pursuant to Article II of
Title 22 of the California Administrative Code, Division 4, Chapter 20,
(viii) defined as "hazardous substance" pursuant to Section 311 of the
Federal Water Pollution Control Act, 33 U.S.C. 1251 et seq. or listed
pursuant to Section 1004 of the Federal Water Pollution Control Act (33
U.S.C. 1317), (ix) defined as a "hazardous waste", pursuant to Section 1004
of the Federal Resource Conservation and Recovery Act, 42 U.S.C. 6901 et
seq., (x) defined as "hazardous substance" pursuant to
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Section 101 of the Comprehensive Environmental Responsibility
Compensation, and Liability Act, 42 U.S.C. 9601 et seq., or (xi)
regulated under the Toxic Substance Control Act, 156 U.S.C. 2601 et
seq.
b. The term "Hazardous Materials Laws" shall mean any local, state and
federal laws, rules, regulations, or ordinances relating to the use,
generation, transportation, analysis, manufacture, installation,
release, discharge, storage or disposal of Hazardous Material.
c. The term "Lessor Agents" shall mean Lessor's agents,
representatives, employees, contractors, subcontractors, directors,
officers and partners.
d. The term "Lessee's Agents" shall mean Lessee's agents,
representatives, employees, contractors, subcontractors, directors,
officers, partners, invitees or any other person in or about the
Premises.
33.2 LESSEE'S RIGHT TO INVESTIGATE: Lessee shall be entitled to cause such
inspection, soils and ground water tests, and other evaluations to be made of
the Premises as Lessee deems necessary regarding (i) the presence and use of
Hazardous Materials in or about the Premises, and (ii) the potential for
exposure to Lessee's employees and other persons to any Hazardous Materials
used and stored by previous occupants in or about the Premises. Lessee shall
provide Lessor with copies of all inspections, tests and evaluations. Lessee
shall indemnify, defend and hold Lessor harmless from any cost, claim or
expense arising from such entry by Lessee or from the performance of any such
investigation by such Lessee.
33.3 LESSOR'S REPRESENTATIONS: Lessor hereby represents and warrants to the
best of Lessor's knowledge that the Premises are, as of the date of this Lease,
in compliance with all Hazardous Material Laws.
33.4 LESSEE'S OBLIGATION TO INDEMNIFY: Lessee, at its sole cost and expense,
shall indemnify, defend, protect and hold Lessor and Lessor's Agents harmless
from and against any and all cost or expenses, including those described under
subparagraphs i, ii and iii herein below set forth, arising from or caused in
whole or in part, directly or indirectly by:
a. Lessee's or Lessee's Agents' use, analysis, storage,
transportation, disposal, release, threatened release, discharge or
generation of Hazardous Materials to, in, on, under, about or from the
Premises; or
b. Lessee's or Lessee's Agents failure to comply with Hazardous
Material laws; or
c. Any release of Hazardous Material to, in, on, under, about, from or
onto the Premises caused by or occurring as a result of acts or
omissions of Lessee or Lessee's Agents or occurring during the Lease
Term, except ground water contamination from other parcels where the
source is from off the Premises not arising from or caused by Lessee
or Lessee's Agents.
The cost and expenses indemnified against include, but are not limited to the
following:
i. any and all claims, actions, suits, proceedings, losses, damages,
liabilities, deficiencies, forfeitures, penalties, fines, punitive
damages, cost or expense;
ii. Any claim, action, suit or proceeding for personal injury
(including sickness, disease, or death), tangible or intangible
property damage, compensation for lost wages, business income, profits
or other economic loss, damage to the natural resources of the
environment, ????, pollution, contamination, leaks, spills, release or
other adverse effects on the environment;
iii. The cost of any repair, clean-up, treatment or detoxification of
the Premises necessary to bring the Premises into compliance with all
Hazardous Material Laws, including the preparation and implementation
of any closure, disposal, remedial action, or other actions with
regard to the Premises, and expenses (including, without limitation,
reasonable attorney's fees and consultants fees, investigation and
laboratory fees, court cost and litigation expenses).
33.5 LESSEE'S OBLIGATION TO REMEDIATE CONTAMINATION: Lessee shall, at its sole
cost and expense, promptly take any and all action necessary to remediate
contamination of the Premises by Hazardous Materials during the Lease Term.
33.6 OBLIGATION TO NOTIFY: Lessor and Lessee shall each give written notice to
the other as soon as reasonably practical of (i) any communication received
from any governmental authority concerning Hazardous Material which related to
the Premises and (ii) any contamination of the Premises by Hazardous Materials
which constitutes a violation of any Hazardous Material Laws.
33.7 SURVIVAL: The obligations of Lessee under this Section 33 shall survive the
Lease Term or earlier termination of this Lease.
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33.8 CERTIFICATION AND CLOSURE: On or before the end of the Lease Term or
earlier termination of this Lease, Lessee shall deliver to Lessor a
certification executed by Lessee stating that, to the best of Lessee's
knowledge, there exists no violation of Hazardous Material Laws resulting from
Lessee's obligation in Paragraph 33. If pursuant to local ordinance, state or
federal law, Lessee is required, at the expiration of the Lease Term, to submit
a closure plan for the Premises to a local, state or federal agency, then Lessee
shall furnish to Lessor a copy of such plan.
33.9 PRIOR HAZARDOUS MATERIALS: Lessee shall have no obligation to clean up or
to hold Lessee harmless with respect to, any Hazardous Material or wastes
discovered on the Premises which were not introduced into, in, on, about, from
or under the Premises during the Lease Term or ground water contamination from
other parcels where the source is from off the Premises not arising from or
caused by Lessee or Lessee's Agents.
34. BROKERS: Lessor and Lessee represent that they have not utilized or
contacted a real estate broker or finder with respect to this Lease and Lessee
agrees to indemnify and hold Lessor harmless against any claim, cost, liability
or cause of action asserted by any broker or finder claiming through Lessee.
Lessor shall pay no brokerage commission in connection with this transaction.
Lessor represents and warrants that it has not utilized or contacted a real
estate broker or finder with respect to this Lease and Lessor agrees to
indemnify and hold Lessee harmless against any claim, cost, liability or cause
of action asserted by any broker or finder claiming through Lessor.
35. OPTION TO EXTEND
A. OPTION: Lessor hereby grants to Lessee one (1) option to extend the Lease
Term, with the extended term to be for a period of five (5) years, on the
following terms and conditions:
(i) Lessee shall give Lessor written notice of its exercise of its
option to extend no earlier than twenty-four (24) calendar months, nor
later than six (6) calendar months before the Lease Term would end but
for said exercise. Time is of the essence.
(ii) Lessee may not extend the Lease Term pursuant to any option granted
by this Section 35 if Lessee is in default as of the date of the
exercise of its option. If Lessee has committed a default by Lessee as
defined in Section 14 or 32 that has not been cured or waived by Lessor
in writing by the date that any extended term is to commence, then
Lessor may elect not to allow the Lease Term to be extended,
notwithstanding any notice given by Lessee of an exercise of this option
to extend.
(iii) All terms and conditions of this Lease shall apply during the
extended term, except that the base rent and rental increases for each
extended term shall be determined as provided in Section 35 (B) below.
(iv) Lessee must provide Lessor written notice of its exercise of its
option as provided hereunder at least nine (9) months before the Lease
Term would end but for said exercise for purposes of negotiating rental
terms. Lessee may withdraw its notice of exercise of an extension option
for any reason prior to six (6) months before the Lease Term would end
but for said exercise. Lessor shall provide Lessee with Lessor's
proposed base monthly rent for the option period within twenty (20) days
of Lessee's written request. However, once Lessee delivers a notice of
exercise of an option to extend the Lease Term it may not be withdrawn
unless notice in writing is provided to Lessor at least six (6) months
before the Lease Term would end but for said exercise and, subject to
the provisions of this Section 35, such notice shall operate to extend
the Lease Term. Upon any extension of the Lease Term pursuant to this
Section 35, the term "Lease Term" as used in this Lease shall thereafter
include the then extended term.
(v) The option rights of Xilinx, Inc. granted under this Section 35 are
granted for Xilinx, Inc.'s personal benefit and may not be assigned or
transferred by Xilinx, Inc. or exercised if Xilinx, Inc. is not
occupying the Premises at the time of exercise.
B. EXTENDED TERM RENT -- OPTION PERIOD: The monthly Rent for the Premises during
the extended term shall equal nine-five percent (95%) of the fair market monthly
Rent for the Premises as of the commencement date of the extended term, but in
no case, less than the Rent during the last month of the prior Lease term.
Promptly upon Lessee's exercise of the option to extend,
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Lessee and Lessor shall meet and attempt to agree on the fair market monthly
Rent for the Premises as of the commencement date of the extended term. In the
event the parties fail to agree upon the amount of the monthly Rent for the
extended term prior to commencement thereof, the monthly Rent for the extended
term shall be determined by appraisal in the manner hereafter set forth;
provided, however, that in no event shall the monthly Rent for the extended
term be less than in the immediate preceding period. Annual base rent increases
during the extended term shall be three percent (3%) per year. In the event it
becomes necessary under this paragraph to determine the fair market monthly
Rent of the Premises by appraisal, Lessor and Lessee each shall appoint a real
estate appraiser who shall be a member of the American Institute of Real Estate
Appraiser ("AIREA") and such appraisers shall each determine the fair market
monthly Rent for the Premises taking into account the value of the Premises and
the amenities provided by the outside areas, the common areas, and the
Building, and prevailing comparable Rentals in the area. Such appraisers shall,
within twenty (20) business days after their appointment, complete their
appraisals and submit their appraisal reports to Lessor and Lessee. If the fair
market monthly Rent of the Premises established in the two (2) appraisals
varies by five percent (5%) or less of the higher Rent, the average of the two
shall be controlling. If said fair market monthly Rent varies by more than five
percent (5%) of the higher Rental, said appraisers, within ten (10) days after
submission of the last appraisal, shall appoint a third appraiser who shall be
a member of the AIREA and who shall also be experienced in the appraisal of
Rent values and adjustment practices for commercial properties in the vicinity
of the Premises. Such third appraiser shall, within twenty (20) business days
after his appointment, determine by appraisal the fair market monthly Rent of
the Premises taking into account the same factors referred to above, and submit
his appraisal report to Lessor and Lessee. The fair market monthly Rent
determined by the third appraiser for the Premises shall be controlling, unless
it is less than that set forth in the lower appraisal previously obtained, in
which case the value set forth in said lower appraisal shall be controlling, or
unless it is greater than that set forth in the higher appraisal previously
obtained in which case the Rent set for in said higher appraisal shall be
controlling. If either Lessor or Lessee fails to appoint an appraiser, or if an
appraiser appointed by either of them fails, after his appointment to submit his
appraisal within the required period in accordance with the foregoing, the
appraisal submitted by the appraiser properly appointed and timely submitting
his appraisal shall be controlling. If the two appraisers appointed by Lessor
and Lessee are unable to agree upon a third appraiser within the required
period in accordance with the foregoing, application shall be made within
twenty (20) days thereafter by either Lessor or Lessee to AIREA, which shall
appoint a member of said institute willing to serve as appraiser. The cost of
all appraisals under this subparagraph shall be borne equally be Lessor and
Lessee.
36. APPROVALS: Whenever in this Lease the Lessor's or Lessee's consent is
required, such consent shall not be unreasonably or arbitrarily withheld or
delayed. In the event that the Lessor or Lessee does not respond to a request
for any consents which may be required of it in this Lease within ten business
days of the request of such consent in writing by the Lessee or Lessor, such
consent shall be determined to have been given by the Lessor or Lessee.
37. AUTHORITY: Each party executing this Lease represents and warrants that
he or she is duly authorized to execute and deliver the Lease. If executed on
behalf of a corporation, that the Lease is executed in accordance with the
by-laws of said corporation (or a partnership that the Lease is executed in
accordance with the partnership agreement of such partnership), that no other
party's approval or consent to such execution and delivery is required, and
that the Lease is binding upon said individual, corporation (or partnership) as
the case may be in accordance with its terms.
38. INDEMNIFICATION OF LESSOR: Except to the extent caused by the sole
negligence or willful misconduct of Lessor or Lessor's Agents, Lessee shall
defend, indemnify and hold Lessor harmless from and against any and all
obligations, losses, costs, expenses, claims, demands, attorney's fees,
investigation costs or liabilities on account of, or arising out of the use,
condition or occupancy of the Premises or any act or omission to act of Lessee
or Lessee's Agents or any occurrence in, upon, about or at the Premises,
including, without limitation, any of the foregoing provisions arising out of
the use, generation, manufacture, installation, release, discharge, storage, or
disposal of Hazardous Materials by Lessee or Lessors's Agents. It is understood
that Lessee is and shall be in control and possession of the Premises and that
Lessor shall in no event be responsible or liable for any injury or damage or
injury to any person whatsoever, happening on, in, about, or in connection with
the Premises, or for any injury or damage to the Premises or any part thereof.
This Lease is entered into on the express condition that Lessor shall not be
liable for, or suffer loss by reason of injury to person or property, from
whatever cause, which in any way may be connected with the use, condition or
occupancy of the Premises or personal property located herein. The provisions of
this Lease permitting Lessor to enter and inspect the Premises are for the
purpose of enabling Lessor to become informed as to whether Lessee is complying
with the terms of this Lease and Lessor shall be under no duty to enter, inspect
or to perform and of Lessee's
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covenants set forth in this Lease. Lessee shall further indemnify, defend and
hold harmless Lessor from and against any and all claims arising from any
breach or default in the performance of any obligation to Lessee's part to be
performed under the terms of this Lease. The provisions of Section 38 shall
survive the Lease Term or earlier termination of this Lease with respect to any
damage, injury or death occurring during the Lease Term.
40. Option to Purchase: Lessor grants to Lessee an option to purchase the
Premises in accordance with the following terms and conditions:
(a) In order to exercise this option to purchase, Lessee must notify Lessor in
writing of such exercise between the ninth and twelfth months following the
Commencement Date. This option shall be null and void if not exercised as
stated herein before the expiration of the twelfth month of the initial Lease
Term.
(b) The purchase price shall be payable in cash or other immediately available
funds, at close of escrow, which shall occur on a date chosen by Lessor but in
any event (i) no earlier than thirty (30) days after Lessee has exercised its
option to purchase and (ii) not later than the ninth month after Lessee has
exercised its option to purchase.
(c)
(d) If Lessee exercises its option to purchase as provided for herein, Lessor
shall deliver title to Lessee by grant deed, free and clear of all claims,
liens, restrictions and encumbrances, other than current taxes, assessments,
easements (all as of the date of Lessee's exercise of its option) and anything
of record or not of record resulting from the acts or omissions of Lessee, and
such other matters as Lessor and Lessee may mutually agree upon.
(e) Both Lessor and Lessee agree to cooperate with each other in effectuating a
tax-deferred exchange of the Property pursuant to Section 1031 of the Internal
Revenue Code of 1986, as amended. Each party agrees to fully cooperate with any
such exchange, provided that each party's obligations to the other shall be
limited to its purchase or sale of the Property, as the case may be, in
accordance with this paragraph 40 and the purchase and sale agreement to be
executed by the parties as herein provided; neither party shall have any greater
or different obligations and no lesser or different rights from those set forth
in this paragraph and such purchase and sale agreement; neither to any cost or
expense on account undertaken by the other party; and neither party shall have
any responsibility whatsoever for the tax or nontax consequences of an exchange
undertaken by the other party, or any liability arising out of holding title to
facilitate such exchange (for which the exchanging party shall indemnify the
cooperating party), including without limitation whether the tax efforts of any
such exchange contemplated by such party and/or any third party to the exchange
are in fact successfully realized. No such exchange shall delay or excuse any of
the time periods specified in this paragraph or in the purchase and sale
agreement to be executed by the parties as herein provided. Accordingly, if an
exchange is contemplated but is not, for whatever reason, completed on the
closing date agreed upon by the parties for the consummation of the sale of the
Premises, the party which has undertaken such exchange (or both parties, if both
parties have undertaken exchanges) nevertheless shall be obligated to close on
the purchase and sale of the Premises at the time and in the manner such close
would have occurred had such party (or both parties, if both parties have
undertaken an exchange) not undertaken an exchange.
(f) Three shall be no prorations as of the close of escrow and Lessee shall
assume any assessments and Lessee shall pay all closing costs, transfer taxes,
and escrow fees.
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(g) Lessee shall purchase the Premises in an "as is" condition without warranty
or representation from Lessor.
(h) Lessor and Lessee represent that they have not utilized or contacted a real
estate broker or finder with respect to this option to purchase and Lessee
agrees to indemnify and hold Lessor harmless against any claim, cost, liability
or cause of action asserted by any broker or finder claiming through Lessee.
Lessor shall pay no brokerage commission in connection with this transaction.
Lessor represents and warrants that it has not utilized or contacted a real
estate broker or finder with respect to this option to purchase and Lessor
agrees to indemnify and hold Lessee harmless against any claim, cost, liability
or cause of action asserted by any broker or finder claiming through Lessor.
40. SUCCESSORS AND ASSIGNS: The covenants and conditions herein contained
shall, subject to the provisions as to assignment, apply to and bind the heirs,
successors, executors, administrators and assigns of all of the parties hereto;
and all of the parties hereto shall be jointly and severally liable hereunder.
41. MISCELLANEOUS PROVISIONS: All rights and remedies hereunder are cumulative
and not alternative to the extent permitted by law and are in addition to all
other rights or remedies in law and in equity.
42. CHOICE OF LAW: This lease shall be construed and enforced in accordance
with the substantive laws of the State of California. The language of all parts
of this lease shall in all cases be construed as a whole according to its fair
meaning and not strictly for or against either Lessor or Lessee.
43. ENTIRE AGREEMENT: This Lease is the entire agreement between the parties,
and there are no agreements or representations between the parties except as
expressed herein. Except as otherwise provided for herein, no subsequent change
or addition to this Lease shall be binding unless in writing and signed by the
parties hereto.
IN WITNESS WHEREOF, Lessor and Lessee have executed these presents, the day and
year first above written.
LESSOR LESSEE
Mission West Properties, L.P. Xilinx, Inc.
By: Mission West Properties, Inc.,
its General Partner
By: /s/ CARL E. BERG By: /s/ KRIS CHELLAM
---------------------------- -----------------------------
signature of authorized signature of authorized
representative representative
Carl E. Berg Kris Chellam
---------------------------- ------------------------------
printed name printed name
Pres. C.F.O.
---------------------------- ------------------------------
title title
8/2/99 7/31/99
---------------------------- ------------------------------
date date
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EXHIBIT A
[FLOOR PLAN]
72,426 SQ. FT. - First Class Office Space in a 2 Story Building
Current Tenant: Force Computer, Contact: Dave Hill (408) 371-5900
[BERG & BERG DEVELOPERS LOGO]
[Illegible]
2001 Logic Drive at Hwy 85
1
<PAGE> 47
EXHIBIT "B"
LEGAL DESCRIPTION OF PARCEL
2001 Logic Drive
San Jose, CA
APN# 421-07-025
LEGAL DESCRIPTION
PARCEL THREE:
Parcel 3, as shown on that Parcel Map filed for record in the office of the
Recorder of the County of Santa Clara, State of California on February 27,
1992 in Dock 634 of Maps, pages 45, 46 and 47.
RESERVING THEREFROM a reciprocal easement for ingress and egress for the
benefit of Parcel 1, 2 and 4, as shown on said Parcel Map and being
delineated and designated thereon as "C.O.E."
ALSO RESERVING THEREFROM a Private Sanitary Sewer Easement 10 feet wide,
for the benefit of Parcels 1 and 2, as shown on said Parcel Map and being
delineated and designated thereon as "P.S.S.N."
PARCEL THREE-A:
A reciprocal easement for ingress and egress over those portions of
Parcels 1, 2 and 4, on the Map filed in Book 634 of Maps, at pages 45, 46
and 47, delineated and designated on said Parcel Map as "C.O.E. for the
benefit of Parcel 3."
PARCEL THREE-B:
An easement for Private Storm Drainage over those portions of Parcel
2 on the Map filed in Book 634 of Maps, at pages 45, 46 and 47, delineated
and designated on said Parcel Map as "P.S.D.E. for the benefit of Parcel
3."
28
<PAGE> 48
EXHIBIT C
SITE PLAN
PAGE 1 OF 3
<PAGE> 49
SECOND FLOOR
[FLOOR PLAN]
PAGE 2 OF 3
<PAGE> 50
FIRST FLOOR
[FLOOR PLAN]
PAGE 3 OF 3
<PAGE> 51
EXHIBIT "D"
SUBLANDLORD'S WORK
1. Replacement and/or repair of any damaged subflooring and tile floor
in the cafeteria and dining area in the Building.
2. Repair of roof and parapet as described in ALCAL roofing invoice for
$4,000 dated __________.
3. Replace missing kitchen equipment.
30
<PAGE> 52
EXHIBIT "E"
DEFERRED MAINTENANCE ITEMS
1. PARKING LOT LIGHT REPLACEMENTS $10,000
2. LOBBY CEILING TILES 6,000
3. MISCELLANEOUS ITEMS-XL CONSTRUCTION 2,000
4. ELEVATOR-PARAMOUNT ELEVATOR 3,000
5. FIRE PROTECTION-FIRE STOP 2,475
6. PLUMBING-KDS PLUMBING 5,200
7. HVAC-CAL-AIR 17,896
8. ELECTRICAL-HOWELL ELECTRIC 10,230
9. GC CONTINGENCY AND OVERHEAD/PROFIT
ON DEFERRED MAINTENANCE 12,926
-------
TOTAL $69,727
31
<PAGE> 53
EXHIBIT "F"
FINAL TENANT IMPROVEMENTS PLANS
THOSE PLANS AND SPECIFICATIONS PREPARED BY DOWLER-GRUMAN, DATED AUGUST 18, 1999,
WHICH ARE INDEXED AS FOLLOWS:
A0 COVER SHEET AND PROJECT DATA
A0.1 EXITING CODE AND ANALYSIS PLAN
A0.2 SPECIFICATIONS
A0.3 SPECIFICATIONS
A1.0 REFERENCE SITE PLAN
A2.0 DEMOLITION PLAN
A2.1.0 OVERALL FLOOR PLANS
A.2.1.1 PARTIAL PLAN-LEVEL 1
A.2.2.1 PARTIAL PLAN AREA 1-LEVEL 2
A.2.2.2 PARTIAL PLAN AREA 2-LEVEL 2
A.2.2.1R PARTIAL REFLECTED CEILING PLAN-LEVEL 2
A.3.1 DOOR 7 WINDOW SCHEDULE
A.3.2 WALL TYPES 7 MOUNTING HEIGHTS
A8.1 INTERIOR DETAILS
A8.2 INTERIOR DETAILS
M-1 MECHANICAL SCHEDULES
M-2 MECHANICAL 1ST FLOOR
M-3 MECHANICAL 2ND FLOOR
E-0 TITLE SHEET
E1.2 2ND FLOOR LIGHTING
E2.1 1ST FLOOR POWER
E2.2 2ND FLOOR POWER
E3 SINGLE LINE
E4.1 PANEL SCHEDULES
E4.2 PANEL SCHEDULES
E5 TITLE 24
F-1 LEVEL 2 SPRINKLER PLAN
32
<PAGE> 54
Consent to Sublease and Agreement
2001 Logic Drive, San Jose, California
This Consent to Sublease and Agreement is entered into by and between
Mission West Properties, L.P., a Delaware limited partnership ("Master
Landlord"), Xilinx, Inc., a Delaware corporation ("Xilinx") and Quantum
Corporation, a Delaware corporation ("Quantum"), as of the date it is executed
by the last of the parties to sign below.
1. Master Landlord Consent.
Master Landlord is the landlord under the Lease ("Master Lease") entered into by
and between Master Landlord, as landlord, and Xilinx, as tenant, dated July 31,
1999, for the Premises located at 2001 Logic Drive, San Jose, California (the
"Premises").
Master Landlord hereby consents to the Sublease by Xilinx of the Premises to
Quantum pursuant to the terms and conditions of the Sublease entered into by and
between Xilinx and Quantum dated October 8, 1999. Master Landlord represents
that, as of the date of Master Landlord's execution hereof, to the best of
Master Landlord's knowledge, Xilinx is not in default or breach of any
provisions of the Master Lease and that the Master Lease has not been amended or
modified.
2. Attornment.
If, after the expiration of the applicable cure period that Xilinx has in which
to cure a default as tenant under the Master Lease, Xilinx fails to cure the
default, Master Landlord shall notify Quantum of the default. If Quantum is not
then in default under the Sublease, Master Landlord shall, in such case,
recognize Quantum's right to quiet possession of the Premises, and Quantum
shall remain in possession of the Premises and attorn to the Master Landlord as
the tenant of the Premises under the terms and conditions of the Master Lease
thereafter, and shall be entitled to all the rights of, and be bound by the
obligations of, the tenant under the Master Lease, except that the termination
date of the Master Lease shall automatically be amended to be the termination
date of the Sublease. Quantum shall not, however, be obligated for the default
of Xilinx, which obligation shall remain that of Xilinx.
3. Alterations.
Master Landlord hereby agrees that Quantum will not be required to remove from
the Premises at the end of the Sublease Term (as may be converted to a Master
Lease as described in Section 2 above), the Tenant Improvements to be installed
by Quantum in the Premises which are described on Exhibit "A" attached hereto
and incorporated herein by reference.
<PAGE> 55
4. Subordination and Non-Disturbance Agreement.
Master Landlord confirms that there is currently no ground lease, deed of trust
or other hypothecation for security (i.e., an "Encumbrance") placed on the real
property of which the Premises are a part. In the event an Encumbrance is
hereafter placed upon the real property of which the Premises are a part during
the term of the Sublease, if Xilinx is not then in default beyond the applicable
cure period under the terms of the Master Lease, Xilinx will subordinate the
Master Lease to the Encumbrance, provided that the holder of the Encumbrance
executes a non-disturbance agreement wherein such holder agrees to recognize
Xilinx's rights under the Master Lease and Quantum's rights under the Sublease
and this Agreement in the event such holder obtains title to the Premises.
"MASTER LANDLORD" "XILINX"
Mission West Properties, LP, Xilinx, Inc.,
a Delaware limited partnership a Delaware corporation
By: /s/ CARL E. BERG By: /s/ [Signature Illegible]
---------------------------------- ---------------------------------
Title: Pres. of GP Title: Vice President
------------------------------- ------------------------------
Date: 10/24/99 Date: 10/21/99
-------------------------------- -------------------------------
"QUANTUM" By: /s/ [Signature Illegible]
Quantum Corporation, ----------------------------------
a Delaware corporation
Title: Asst. Secy.
By: /s/ NORM CLAUS -------------------------------
----------------------------------
Date: 10/21/99
Title: VP Real Estate & Corp. Svcs. --------------------------------
-------------------------------
Date: 10/18/99
--------------------------------
By: /s/ [Signature Illegible]
----------------------------------
Title: V.P. Finance & General Counsel
-------------------------------
Date: 10/18/99
--------------------------------
2
<PAGE> 56
EXHIBIT "A"
FINAL TENANT IMPROVEMENT PLANS
THOSE PLANS AND SPECIFICATIONS PREPARED BY DOWLER-GRUMAN, DATED AUGUST 18,
1999, WHICH ARE INDEXED AS FOLLOWS:
--------------------------------------------------------------------------------
AO COVER SHEET AND PROJECT DATA
--------------------------------------------------------------------------------
A0.1 EXITING CODE AND ANALYSIS PLAN
--------------------------------------------------------------------------------
A0.2 SPECIFICATIONS
--------------------------------------------------------------------------------
A0.3 SPECIFICATIONS
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
A1.0 REFERENCE SITE PLAN
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
A2.0 DEMOLITION PLAN
--------------------------------------------------------------------------------
A2.1.0 OVERALL FLOOR PLANS
--------------------------------------------------------------------------------
A.2.1.1. PARTIAL PLAN-LEVEL 1
--------------------------------------------------------------------------------
A.2.2.1 PARTIAL PLAN AREA 1-LEVEL 2
--------------------------------------------------------------------------------
A.2.2.2 PARTIAL PLAN AREA 2-LEVEL 2
--------------------------------------------------------------------------------
A.2.2.1R PARTIAL REFLECTED CEILING PLAN-LEVEL 2
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
A.3.1 DOOR 7 WINDOW SCHEDULE
--------------------------------------------------------------------------------
A.3.2 WALL TYPES 7 MOUNTING HEIGHTS
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
A8.1 INTERIOR DETAILS
--------------------------------------------------------------------------------
A8.2. INTERIOR DETAILS
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
M-1 MECHANICAL SCHEDULES
--------------------------------------------------------------------------------
M-2 MECHANICAL 1ST FLOOR
--------------------------------------------------------------------------------
M-3 MECHANICAL 2ND FLOOR
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
E-0 TITLE SHEET
--------------------------------------------------------------------------------
E1.2 2ND FLOOR LIGHTING
--------------------------------------------------------------------------------
E2.1 1ST FLOOR POWER
--------------------------------------------------------------------------------
E2.2 2ND FLOOR POWER
--------------------------------------------------------------------------------
E3 SINGLE LINE
--------------------------------------------------------------------------------
E4.1 PANEL SCHEDULES
--------------------------------------------------------------------------------
E4.2 PANEL SCHEDULES
--------------------------------------------------------------------------------
E5 TITLE 24
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
F-1 LEVEL 2 SPRINKLER PLAN
--------------------------------------------------------------------------------
3
<PAGE> 57
ASSIGNMENT OF SUBLEASE AGREEMENT
Preamble
This Assignment of Sublease Agreement ("Assignment") is made and entered
into by and between Quantum Corporation, a Delaware corporation ("Assignor")
and Quantum Snap Division Corporation, a Delaware corporation ("Assignee"),
effective as of September 18, 2000 ("Effective Date").
Recitals
A. Assignor, as Subtenant, and Xilinx, Inc., as Sublandlord, entered
into a Sublease Agreement dated October 8, 1999 for the property
located at 2001 Logic Drive, San Jose, California 95124 ("Sublease") a
copy of which Sublease is attached hereto as Exhibit A and
incorporated herein by reference.
B. Assignee is a wholly owned subsidiary of Assignor as of the Effective
Date.
C. Assignor now desires to assign all of Assignor's right, title and
interest in and to the Sublease to Assignee, and Assignee desires to
accept the assignment thereof on the terms and conditions set forth
below.
Agreement
Based on the facts and premises contained in the above Recitals and on the
mutual covenants below, and for other valuable consideration receipt of which
is hereby acknowledged, the parties hereto agree as follows:
1. Assignment. Assignor assigns to Assignee all of its right, title and
interest in and to the Sublease as of the Effective Date.
2. Assignee Assumption. Assignee accepts such assignment and assumes
and agrees to be bound by all the covenants, agreements, terms, provisions,
conditions, obligations and duties of Assignor as Subtenant under the Sublease
commencing on the Effective Date.
3. Assignor to Remain Liable. Assignor shall remain obligated to
Sublandlord for the full performance of all covenants, conditions, obligations
and duties required of Subtenant under the Sublease and shall not be relieved
of any such performance thereunder as a result of this Assignment.
4. Effect on Successors-in-Interest. The provisions of this Assignment
shall bind and inure to the benefit of the heirs, representatives, successors
and permitted assigns of the parties hereto.
5. Notices. The address for notices under the Sublease for Subtenant
shall be as follows, commencing on the Effective Date.
<PAGE> 58
Quantum Snap Division Corporation
2001 Logic Drive
San Jose, CA 95124
Attn: Vice President, Operations
with copy to:
Quantum Corporation
500 McCarthy Blvd.
Milpitas, CA 95035
Attn: Vice President, Corporate Real Estate & Services
Authorized Signatures
"Assignor" "Assignee"
Quantum Corporation Quantum Snap Division Corporation
By: /s/ RICHARD L. CLEMMER By: /s/ ANDERS AXELSSON
------------------------------- ------------------------------------
Title: EVP-CFO Title: VP & GM
---------------------------- ---------------------------------
2