California-Santa Clara-2560 Mission College Boulevard Sublease - Transmeta Corp. and Xuan Nguyen d/b/a World Marketing Alliance
SUBLEASE
Sublandlord: Transmeta Corporation Master
Premises: 2560 Mission College Blvd.,
Santa Clara, California
Subtenant: Xuan Nguyen dha Date: April 28, 1999
World Marketing Alliance
1. Parties:
This Sublease is made and entered into as of April 28, 1999, by and between
Transmeta Corporation ("Sublandlord") and Xuan Nguyen dba World Marketing
Alliance ("Subtenant"), under the Master Lease dated April 2, 1998 between
John Arrillaga, Trustee, or his Successor Trustee, UTA, dated July 20, 1977
(John Arrillaga Survivor's Trust) as amended, and Richard T. Peery, Trustee,
or his successor Trustee, UTA, dated July 20, 1977 (Richard T. Peery
Separate Property Trust) as amended, hereinafter called Landlord, as
"Landlord", and Sublandlord as "Tenant", ("Master Lease"). A copy of the
Master Lease is attached hereto as "Exhibit B" and incorporated herein by
this reference. Pursuant to the Master Lease, Sublandlord leases a 36,225+/-
square foot portion of that certain Forty-five Thousand+/- (45,000+/-)
square foot, two-story building located at 2560 Mission College Boulevard,
Santa Clara, California (the "Master Premises").
2. Provisions Constituting Sublease:
2.1 This Sublease is subject to all of the terms and conditions of the
Master Lease. Subtenant hereby assumes and agrees to perform all of the
obligations of "Tenant" under the Master Lease to the extent said
obligations apply to the Subleased Premises and Subtenant's use of the
Common Areas as depicted in "Exhibit A" attached, except as specifically set
forth herein. Sublandlord hereby agrees to use reasonable efforts to cause
Landlord under the Master Lease to perform all of the obligations of
Landlord thereunder to the extent said obligations apply to the Subleased
Premises and Subtenant's use of the Common Areas. Neither Subtenant nor its
employees, agents. contractors or invitees ("Subtenant's Agents") shall
commit on the Subleased Premises or on any other portion of the Master
Premises any act or omission which violates the rights of any other party or
parties hereto who are affected thereby. Neither of the parties hereto will,
by renegotiation of the Master Lease assignment, subletting, default or any
other voluntary action, avoid or seek to avoid the observance or performance
of the terms to be observed or performed hereunder by such party, but will
at all times in good faith assist in carrying out all the terms of this
Sublease and in taking all such action as may be necessary or appropriate to
protect the rights of the other party of the other party or parties hereto
who are affected thereby against impairment. Nothing contained in this
Section or elsewhere in this Sublease shall prevent or prohibit Sublandlord
from assigning its interest in this Sublease or subletting portions of the
Master Premises other than the Subleased Premises.
2.2 With respect to all of the provisions of the Master Lease incorporated
into this Sublease, wherever the word "Premises" is used in the Master
Lease, for purposes of this Sublease, the word "Subleased Premises" shall be
substituted; wherever in the
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Master Lease the word "Tenant" appears, for purposes of this Sublease, the
word "Subtenant" shall be substituted; wherever in the Master Lease the word
"Landlord" appears, for the purposes of this Sublease, the word
"Sublandlord" shall be substituted. Notwithstanding the foregoing, the word
"Landlord" in Paragraph 5 of the Master Lease shall be deemed to refer to
"Master Landlord", and the word "Sublandlord" shall not be substituted
therefore. All of the terms and conditions contained in the Master Lease are
incorporated herein, except as specifically provided below, and the terms
and conditions of this Sublease, except the following paragraphs of the
Master Lease which shall solely he the obligation of Sublandlord: the
description of the premises leased pursuant to the Master Lease, Paragraphs
2, 3, 4A, 4F, 4G, 34, 41, 43, 54, 55 and replace "Exhibit B" with "Exhibit A
of the Sublease" in Paragraph 44.
3. Subleased Premises and Rent:
3.1 Subleased Premises:
Sublandlord leases to Subtenant and Subtenant leases from Sublandlord the
Subleased Premises upon all of the terms, covenants and conditions contained
in the Sublease. The Subleased Premises consists of approximately 8,280 +/-
square feet of the Master Premises and as shown in red on "Exhibit A"
attached hereto. Sublandlord represents and warrants to Subtenant that
Sublandlord is presently in possession of the Subleased Premises and has
been continuously since July 1, 1998.
3.2 Rent:
<TABLE>
<CAPTION>
Months Base Rent
<S> <C>
01-03 No base rent*
04-19 $17,388.00 per month
20-39 $17,802.00 per month
</TABLE>
* Tenant is responsible for all additional rent during this period,
however, as well as later periods.
Subtenant shall pay to Sublandlord rent for the Subleased Premises without
deductions, offset, prior notice or demand. Rent shall be payable by
Subtenant to Sublandlord in consecutive monthly installments on or before
the first day of each calendar month during the Sublease Term. This is a net
rent. As set forth in the Master Lease, Subtenant shall be responsible for
all additional rent, except as otherwise expressly set forth within,
including, but not limited to Paragraphs 7, 10, 11, 12 and 15. All such
expenses shall be determined on a pro-rata basis and paid monthly to
Sublandlord as additional rent. The obligations of Sublandlord and Subtenant
concerning additional rent will be adjusted in the same manner as described
in the Master Lease. All personal property insurance of Subtenant shall be
the sole responsibility of the Subtenant. Sublandlord shall not be
responsible for providing janitorial for Subleased Premises.
3.3. Security Deposit:
In addition to the Rent specified above, Subtenant shall pay to Sublandlord
$17,388.00 as a non-interest bearing Security Deposit. Sublandlord shall
return to Subtenant, within ten days after Subtenant has vacated the
Subleased Premises, the Security Deposit less any sums due and owing to
Sublandlord and/or the cost to Sublandlord to cure any other of the
Subtenant's breaches of the Sublease, all in accordance with California
Civil Code Section 1950.7 or any successor statute thereto.
3.4 Upon execution of the Sublease Agreement by both parties, Subtenant
shall pay to
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Sublandlord the Security Deposit and the first month's base rent applicable
to Month 4 of the term and additional rent.
4. Rights of Access and Use:
4.1 Use:
Subtenant shall use the Sublease Premises only for those purposes permitted
in the Master Lease and for training purposes, unless Sublandlord and Master
Landlord consent in writing to other uses prior to the commencement thereof.
5. Sublease Term:
5.1 Sublease Term:
The Sublease Term shall commence on the later of May 1, 1999, subject to
adjustment as set forth in Paragraph 5.3 ("Commencement Date") and terminate
thirty-nine (39) months after Sublease commencement. In no event shall the
Sublease Term extend beyond the Term of the Master Lease.
5.2 Upon the Commencement Date, Sublandlord shall deliver the Subleased
Premises in "as-is" condition.
5.3 Inability to Deliver Possession:
In the event Sublandlord is unable to deliver possession of the Subleased
Premises on May 1, 1999, Sublandlord shall not be liable for any damage
caused thereby, nor shall this Sublease be void or voidable but Subtenant
shall not be liable for Rent until such time as Sublandlord offers to
deliver possession of the Subleased Premises to Subtenant, but the term
hereof shall not be extended by such delay, provided, however, that if
Sublandlord cannot deliver possession within thirty (30) days following May
1, 1999, then Subtenant may, at its option, terminate this Sublease by
giving written notice to Sublandlord. If Subtenant, with Sublandlord's
consent, takes possession prior to commencement of the term, Subtenant shall
do so subject to all the covenants and conditions hereof and shall pay Rent
for the period ending with the commencement of the term at the same rental
as that prescribed for the first month of the term prorated at the rate of
1/30th thereof per day.
6. Parking:
Sublandlord will grant Subtenant their prorate share of the parking spaces
granted to the building by the Master Lease. Said proration to he determined
by dividing square footage of Subleased Premises by the total Master
Premises' square footage then multiplying this percent by the total parking
spaces granted.
7. Tenant Improvements:
Sublandlord shall deliver the Premises in "as-is" condition. All other
improvements shall be at Subtenant's sole cost and expense and Subtenant
shall secure both Sublandlord's and Master Landlord's prior written consent
which consent shall not be unreasonably withheld or delayed. Sublandlord
agrees that Sublandlord shall not unreasonably withhold it consent to the
tenant improvements as described in Exhibit D to this Sublease so long as
the final working drawings and specifications for such tenant improvements
which are submitted to Sublandlord for its final approval are materially
consistent with the tenant improvements described in Exhibit D. Sublandlord
will not require Subtenant to remove improvements as described in Exhibit D
at the end of the Sublease term. With respect to any other alterations or
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improvements which Subtenant desires to make to the Subleased Premises
during the term of this Sublease, Sublandlord shall notify Subtenant at the
time of its approval of such alterations or improvements whether Subtenant
will be required to remove such alterations or improvements from the
Subleased Premises at the expiration or sooner termination of this Sublease
and/or restore the Subleased Premises to their condition existing as of the
date of this Sublease.
8. Alterations:
Subtenant shall not make any alterations to the interior or exterior of the
Premises without the prior written consent of Sublandlord, which consent
shall not be unreasonably withheld or delayed.
9. Notices:
Any notice or report required or desired to be given regarding this Sublease
shall be in writing, may be given by personal delivery, by facsimile, by
courier service or by certified mail, return receipt requested. Any notice
or report addressed to Subtenant or to Sublandlord at the address shown on
the signature page hereof, as appropriate, shall be deemed to have been
given (i) on the date the U.S. Post Office certifies delivery,
nondeliverability or refusal of delivery if such notice or report was
deposited in the United States mail, certified, postage prepaid, (ii) when
delivered if given by personal delivery, (iii) on the business day following
deposit. cost prepaid, with Federal Express or similar private carrier, if
next business day delivery was requested, and (iv) in all other cases when
actually received. Either party may change its address by giving notice of
the same in accordance with this Paragraph. The term "business day" shall
mean a day on which the carrier used (Federal Express or other private
carrier, or the U.S. Postal Service, as applicable) delivers, whether by
special request or in the ordinary course of operations.
All notices, demands, requests, advices or designations by Subtenant or
Sublandlord shall be addressed to Sublandlord at its offices to Richard
Apcar at Transmeta Corporation, 2540 Mission College Boulevard, Santa Clara,
California 95054. and to Subtenant, Xuan Nguyen, World Marketing Alliance,
2560 Mission College Blvd., Santa Clara, CA, 95054.
10. Agency:
Subtenant and Sublandlord acknowledge that Colliers Parrish (Broker) is
acting solely as the agent for the Subtenant in this transaction and that
CPS (Broker) is acting solely as the agent for Sublandlord, and that neither
Broker represents the other's client.
11. Broker Fee:
Sublandlord shall pay CPS, a licensed real estate broker representing
Sublandlord, fees set forth in a separate agreement between Sublandlord and
Broker.
12. Broker:
Each party warrants and represents to the other party hereto that it has not
dealt with any brokers in connection with this Sublease other than the
brokers identified in Paragraph 10 of this Sublease (the "Brokers"). Each
party hereby indemnifies and holds the other party harmless from any and all
loss, damage, claim, liability, cost or
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expense (including, but not limited to, reasonable attorneys' fees, expenses
and court costs) arising out of or in connection with any breach of the
foregoing warranty and representation. The provisions of this Paragraph
shall survive the expiration or earlier termination of this Sublease.
13. Assignment and Subletting:
Notwithstanding any provision to the contrary in this Sublease, including,
without limitation, any provision of the Master Lease incorporated herein,
Sublandlord shall not withhold its consent to any assignment or subletting
which either does not require the consent of Master Landlord or which
requires the consent of Master Landlord and to which Master Landlord
consents. If Subtenant desires to Sublease or assign the Subleased Premises,
Sublandlord shall have a right of first refusal to lease or assign such
space within thirty (30) days from notification by Subtenant. Upon receiving
written notice of Subtenant's desire to Sublease. Sublandlord shall respond
in writing of its decision to Sublease within ten (10) days. If Subtenant
does not sublease or assign the Premises within 30 days of Sublandlord's
rejection of such offer, then this right of refusal process shall be
repeated.
14. Waiver of Subrogation:
Notwithstanding any provision to the contrary in this Sublease, including,
without limitation, any provision incorporated from the Master Lease, the
parties hereto release each other and their respective agents, employees,
successors, assignees and subtenants from all liability for damage to any
property that is caused by or results from a risk which is actually insured
against, without regard to the negligence or willful misconduct of the
entity so released. Each party shall use its best efforts to cause each
insurance policy it obtains to provide that the insurer thereunder waives
all right of recovery by way of subrogation as required herein in connection
with any injury or damage covered by the policy. If such insurance policy
cannot be obtained with such waiver of subrogation, or if such waiver of
subrogation is only available at additional cost and the party for whose
benefit the waiver is not obtained does not pay such additional cost, then
the party obtaining such insurance shall immediately notify the other party
of that fact.
15. Waiver of Subrogation in Master Lease:
Upon Master Landlord's execution of the Consent to Sublease which follows
this Sublease, the waiver of subrogation provision in Paragraph 14 of the
Master Lease, notwithstanding any provision to the contrary in this Sublease
or the Master Lease, shall be effective between Master Landlord and
Subtenant with respect to insured casualties regarding the Subleased
Premises as well as between Master Landlord and Sublandlord.
16. Master Lease Enforcement:
Sublandlord shall diligently attempt to enforce Master Landlord's
obligations under the Master Lease with respect to or affecting the Master
Premises and/or any common areas used (or available for use by Subtenant).
Subtenant acknowledges that Sublandlord is under no duty to make repairs or
improvements to the Subleased Premises accept as specifically set forth in
the Master Lease.
17. Sublandlord's Cooperation:
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<PAGE> 6
If Master Landlord's consent is required for any action which Subtenant
desires to take under this Sublease, Sublandlord shall cooperate with
Subtenant to obtain such consent. If Master Landlord fails to perform any of
its obligations under the Master Lease, Sublandlord, at the request of
Subtenant, shall use its good faith efforts to obtain Master Landlord's
performance of such obligation(s).
18. Subtenant's Corporate Authority:
Subtenant represents (a) that it is a corporation organized and existing
under the laws of the State of Delaware and is qualified to do business in
the State of California; (h) that this Sublease has been duly authorized by
all required corporate actions; and (c) that the persons executing the
Sublease are authorized to execute this Sublease on behalf of Subtenant.
19. If either party commences an action against the other for enforcement of or
in connection with this Sublease, the prevailing party shall be entitled to
receive costs of suit and reasonable attorney fees incurred in such action.
20. Consent:
This sublease is subject to consent of Master Landlord. Sublandlord and
Subtenant shall use reasonable efforts to secure Master Landlord's consent.
Sublandlord: Transmeta Corporation
By: /s/ Rich Stiller By:
------------------------------- ---------------------------------
Title: VP Corporate Services Title:
---------------------------- ------------------------------
Date: 4-29-99 Date:
----------------------------- -------------------------------
Subtenant: Xuan Nguyen dba World Marketing Alliance
By: /s/ Xuan Nguyen By:
------------------------------- ---------------------------------
Title: Field Vice Chairman Title:
---------------------------- ------------------------------
Date: 4-28-99 Date:
----------------------------- -------------------------------
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April 30, 1999
MR. RICHARD STILLER
TRANSMETA CORPORATION
3940 Freedom Circle
Santa Clara, CA 95054
Re: CONSENT TO SUBLEASE TO XUAN NGUYEN, AN INDIVIDUAL (D.B.A. WORLD
MARKETING ALLIANCE) FOR A PERIOD OF THIRTY NINE MONTHS COMMENCING MAY 1,
1999 AND TERMINATING AUGUST 31, 2002
Gentlemen:
This letter is written with regard to your proposed sublease of approximately
8,280 square feet of space (as shown on Exhibit A attached hereto) (the "Sublet
Premises") of the 36,225 square feet of space leased by Tenant at 2560 Mission
College Blvd., Santa Clara, California, under Lease Agreement dated April 2,
1998 ("Master Lease"), by and between John Arrillaga Separate Property Trust and
Richard T. Peery Separate Property Trust ("Master Landlord"), and TRANSMETA
CORPORATION, A CALIFORNIA CORPORATION ("TENANT"), which Tenant is proposing to
sublease to XUAN NGUYEN, AN INDIVIDUAL ("SUBTENANT") on the terms and conditions
set forth in the proposed Sublease dated April 28, 1999, submitted by Tenant to
Master Landlord on April 29, 1999 (the "Sublease").
Pursuant to Master Lease Paragraph 19 ("Assignment and Subletting") Master
Landlord hereby approves Tenant's subleasing said space to Subtenant, under the
Sublease, subject to the following terms and conditions:
1. Master Landlord's Consent shall in no way void or alter any of the terms
of the Lease by and between Master Landlord and Tenant, nor shall this
Consent alter or diminish in any way Tenant's obligations to Master
Landlord.
2. Tenant shall not give Subtenant any rights or privileges in excess of
those given Tenant under the terms of the Master Lease.
3. Subtenant shall not have a separate address from the address of the
Premises. Therefore, Tenant shall provide Subtenant with internal mail
delivery. Tenant and Subtenant shall share (the prorata shares to be
determined in a separate agreement between Tenant and Subtenant) the
existing signage allocated to Tenant for the Premises.
4. Master Landlord has not reviewed the terms of any agreement between
Tenant and
<PAGE> 8
Subtenant, and in approving said Sublease, Master Landlord is in no way
approving any term, covenant or condition therein contained, and said
Sublease is subject and subordinate to all terms, covenants and
conditions of the Master Lease. Master Landlord shall not be bound by
any agreement other than the terms of the Master Lease between Master
Landlord and Tenant. In the event of conflict in the terms, covenants
and conditions between the Sublease and the Master Lease, the terms,
covenants and conditions of the Master Lease shall prevail and take
precedence over said Sublease. Master Landlord does not make any
warranties or representations as to the condition of the Leased Premises
or the terms of the Lease between Master Landlord and Tenant. This
Consent to Sublease shall in no event be construed as consent to any
future sublease agreement (including any extensions and/or amendments to
the current Sublease) between Tenant and Subtenant, or any other party;
and any future sublease agreement (including any extensions and/or
amendments to the current Sublease) between Tenant and Subtenant, or any
other party shall require the prior written consent of Master Landlord.
Under no circumstances will Master Landlord consent to a sub-sublease or
assignment under the Sublease.
5. A. It is agreed by all parties hereto that in the event the Master Lease
is rejected by Tenant under a Chapter 11 or 7 proceeding and/or Master
Landlord terminates the Master Lease, pursuant to any right therein
contained, said Sublease shall automatically terminate simultaneously
with the Master Lease. Notwithstanding anything to the contrary set
forth above, Master Landlord, at Master Landlord's sole option and
election, may choose to allow Subtenant to remain in possession of the
Sublet Premises leased under said Sublease subject to all terms,
covenants and conditions of said Master Lease by giving Subtenant
written notice prior to the effective date of termination of said Master
Lease, of Master Landlord's election to allow Subtenant to remain in
possession of the Sublet Premises in which event Subtenant shall be
entitled and obligated to remain in possession of the Sublet Premises
under the terms of said Sublease, subject to all terms, covenants and
conditions of the Master Lease, including, without limitation to,
payment of Basic Rent at the greater of: (i) the rate provided for in
the Master Lease, or (ii) the rate provided for in the Sublease. Such
election by Master Landlord shall not operate as a waiver of any claims
Master Landlord may have against Tenant. Following such written notice
by Master Landlord Subtenant shall then, as of the effective date of
said termination of said Master Lease, be liable to and shall attorn in
writing directly to Master Landlord as though said Sublease were
executed directly between Master Landlord and Subtenant; provided,
however, it is specifically agreed between the parties hereto, that
whether Master Landlord elects to allow Subtenant to remain in
possession of the Sublet Premises under the terms of the Sublease,
subject to the Master Lease, or allow said Sublease to automatically
terminate simultaneously with the Master Lease, Master Landlord shall
not, in any event, nor under any circumstances be responsible or liable
to Subtenant for (i) the return of any security deposit paid by
Subtenant to Tenant, nor shall Subtenant be given credit for any prepaid
rental or other monetary consideration paid by Subtenant to Tenant under
said Sublease; (ii) any other claim or damage of any kind or nature
whatsoever by reason of or in connection with Master Landlord's
termination of said Master Lease and/or Sublease; and (iii) any default
of Tenant under the Sublease.
<PAGE> 9
B. In the event Master Landlord has terminated the Master Lease, and has not
elected, in writing prior to the effective date of termination of said Master
Lease, to allow Subtenant to remain in the Sublet Premises as set forth above,
said Sublease shall terminate co-terminously with the effective termination of
the Master Lease automatically, without notice, and Subtenant and/or Tenant,
jointly and severally, shall surrender the Sublet Premises to Master Landlord in
good condition and repair as of the effective termination of the Master Lease,
with Master Landlord having no obligation or liability whatsoever to Subtenant
by reason of or in connection with such early termination of the Master Lease.
In the event Subtenant and/or Tenant fails to timely surrender the Sublet
Premises to Master Landlord in good condition and repair as of the date the
Master Lease terminates, Subtenant and/or Tenant, jointly and severally, shall
be liable to Master Landlord in such event for all damages, costs, claims,
losses, liabilities, fees or expenses sustained by Master Landlord, including,
but not limited to, loss of rental income, attorney's fees and court costs
resulting from or in connection with Subtenant's failure to timely vacate the
Sublet Premises and surrender the Sublet Premises to Master Landlord as of the
effective termination date of said Master Lease.
C. As a condition to Landlord's consent to the Sublease, by execution of this
Consent to Sublease, Subtenant hereby agrees to be bound by the following
provision in relation to both Tenant and Master Landlord:
If Master Landlord and Tenant jointly and voluntarily elect, for any
reason whatsoever, to terminate the Master Lease prior to the scheduled
Master Lease Termination Date, then this Sublease (if then still in
effect) shall terminate concurrently with the termination of the Master
Lease. Subtenant expressly acknowledges and agrees that (1) the
voluntary termination of the Master Lease by Master Landlord and Tenant
and the resulting termination of this Sublease shall not give Subtenant
any right or power to make any legal or equitable claim against Master
Landlord or Tenant, including without limitation any claim for
interference with contract or interference with prospective economic
advantage, and (2) Subtenant hereby waives any and all rights it may
have under law or at equity to challenge such an early termination of
the Sublease, and unconditionally releases and relieves Master Landlord
and Tenant, and their officers, directors, employees and agents, from
any and all claims, demands, and/or causes of action whatsoever
(collectively, "Claims"), whether such matters are known or unknown,
latent or apparent, suspected or unsuspected, foreseeable or
unforeseeable, which Subtenant may have arising out of or in connection
with any such early termination of this Sublease. Subtenant knowingly
and intentionally waives any and all protection which is or may be given
by Section 1542 of the California Civil Code which provides as follows:
A general release does not extend to claims which the creditor does not
know or suspect to exist in his favor at the time of executing the
release, which if known by him must have materially affected his
settlement with debtor.
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The term of this Sublease is therefore subject to early
termination. Subtenants initials here below evidence (a) Subtenants
consideration of and agreement to this early termination provision,
(b) Subtenants acknowledgment that, in determining the net benefits
to be derived by Subtenant under the terms of this Sublease,
Subtenant has anticipated the potential for early termination, and
(c) Subtenants agreement to the general waiver and release of
Claims above.
Initials: /s/ RS Initials: /s/ XN
---------- ----------
Subtenant Tenant
6. In consideration of Master Landlord's consent to the Sublease, Tenant
irrevocably assigns to Master Landlord, as security for Tenant's
obligations under this Lease, all rent and income payable to Tenant
under the Sublease. Therefore Master Landlord may collect all rent due
under the Sublease and apply it towards Tenant's obligations under the
Master Lease. Tenant and Subtenant agree to pay same to Master Landlord
upon demand without further consent of Tenant and Subtenant required;
provided, however, that until the occurrence of a default by Tenant
under the Master Lease, Tenant shall have the right to collect such
rent. Tenant hereby irrevocably authorizes and directs Subtenant, upon
receipt of a written notice from Master Landlord stating that a default
exists in the performance of Tenant's obligations under the Master
Lease, to pay to Master Landlord the rents due and to become due under
the Sublease. Tenant agrees that Subtenant shall have the right to rely
on any such statement and request from Master Landlord, and that
Subtenant shall pay such rents to Master Landlord without any obligation
or right to inquire as to whether such default exists and
notwithstanding any notice or claim from Tenant to the contrary. Tenant
shall have no right or claim against Subtenant or Master Landlord for
any such rents so paid by Subtenant to Master Landlord. It is further
agreed between the parties hereto that neither Tenant's assignment of
such rent and income, nor Master Landlord's acceptance of any payment of
rental or other sum due by Subtenant to Tenant under said sublease,
whether payable directly to Master Landlord or endorsed to Master
Landlord by Tenant, shall in any way nor in any event be construed as
creating a direct contractual relationship between Master Landlord and
Subtenant, unless the Parties expressly so agree in writing and such
acceptance shall be deemed to be an accommodation by Master Landlord to,
and for the convenience of, Tenant and Subtenant. Any direct contractual
agreement between Master Landlord and Subtenant must be in writing.
7. Pursuant to the provisions of Paragraph 19 entitled "Assignment and
Subletting" of the Master Lease, Master Landlord hereby requires Tenant
to pay to Master Landlord, as Additional Rent, all rents and/or
additional consideration received by Tenant from said Sublease in excess
of the Basic Rent payable to Master Landlord in said Lease (hereinafter
referred to as "Excess Rent") after first recovering from such Excess
Rent the amount of all
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reasonable leasing commissions paid to third parties not affiliated with
Tenant. Tenant and Subtenant acknowledge that any Excess Rent is owed to
Master Landlord and Tenant hereby agrees to pay any Excess Rent to
Master Landlord as due under said Sublease. Tenant and Subtenant
represent and warrant to Master Landlord that: (1) the information to be
completed and provided by Tenant and Subtenant on the attached Exhibit B
"Summary of Amounts/Consideration to be Paid by Subtenant" accurately
represents amounts to be paid by Subtenant under said Sublease; (2) no
additional consideration is due Tenant under said Sublease, other than
the additional consideration (if any) identified on Exhibit B; and (3)
no changes in the terms and/or conditions of said Sublease shall be made
without Master Landlord's prior written approval.
8. This Consent is conditional upon Master Landlord's receipt of Master
Landlord's reasonable costs and attorney's fees, to which Master
Landlord is entitled under Paragraph 19 of the Master Lease. Tenant
shall pay such fees and costs to Landlord, pursuant to the invoice
provided to Tenant by Landlord with this Consent, upon execution of this
Consent by Tenant and Subtenant.
11. This Consent to Sublease shall only be considered effective, and Master
Landlord's consent to the Sublease given, when (i) Landlord receives
payment from Tenant of Landlord's costs, and (ii) this Letter Agreement
is executed by Master Landlord, Tenant, and Subtenant, and Guarantors
(if any) under the Master Lease.
Please execute this letter in the space provided below, obtain the signature of
Subtenant, and return all copies to our office no later than May 14, 1999. IN
THE EVENT TENANT FAILS TO RETURN THE FULLY EXECUTED DOCUMENTS TO LANDLORD BY MAY
14, 1999, THIS CONSENT SHALL BE AUTOMATICALLY RESCINDED, IN WHICH EVENT, TENANT
SHALL BE REQUIRED TO RESUBMIT ITS REQUEST IN THE EVENT TENANT DESIRES TO GO
FORWARD WITH SAID SUBLEASE. A fully executed copy will be returned to you after
execution by the Master Landlord.
Very truly yours,
PEERY/ARRILLAGA
By /s/ JOHN ARRILLAGA
------------------------------------
John Arrillaga
(SIGNATURES CONTINUED ON FOLLOWING PAGE)
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THE UNDERSIGNED Tenant and Subtenant do hereby jointly and severally agree to
the terms and conditions of this Consent to Sublease.
TENANT: SUBTENANT:
TRANSMETA CORPORATION XUAN NGUYEN
a California corporation d.b.a. World Marketing Alliance
By /s/ R. STILLER By /s/ XUAN NGUYEN
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Richard Stiller, Vice President Xuan Nguyen, individually