EXHIBIT 10.10
SUB-SUBLEASE
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THIS SUB-SUBLEASE ("Sub-sublease"), dated June , 1999 (the "Execution Date"),
for reference purposes only, is entered into by and between Cadence Design
Systems, Inc. a Delaware corporation ("Sub-sublandlord"), and eGain
Communications Corporation, a Delaware corporation ("Sub-subtenant").
RECITALS
A. Sub-sublandlord subleases certain premises consisting of approximately
46,000 square feet of rentable area (the "Premises") which is the entire
building located at 000 Xxxx Xxxxx Xxxxxx in Sunnyvale, California (the
"Building"), pursuant to that certain Sublease Agreement, dated June 3, 1996
(the "Master Sublease"), between Sub-sublandlord, as tenant, and Cisco Systems,
Inc., as successor-in-interest to Combinet, Inc., a California corporation, as
sublandlord ("Sublandlord").
B. Sublandlord subleases the Premises pursuant to that certain Lease
Agreement, dated May 1995 (the "Master Lease"), between Sublandlord, as the
lessee thereunder, and J.P, XxXxxxxx Companies, Inc. a _________________
corporation, as successor-in-interest to Sunnyvale Research Plaza Associates,
a California limited partnership, as the lessor thereunder ("Landlord").
C. Capitalized terms herein not otherwise defined herein shall have the
same meanings as provided in the Master Sublease.
D. Sub-sublandlord desires to lease the Premises to Sub-subtenant, and
Sub-subtenant desires to lease the Premises from Sub-sublandlord, upon the terms
and conditions provided for herein.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
contained herein, Sub-sublandlord and Sub-subtenant covenant and agree as
follows:
AGREEMENT
1. Premises. Upon and subject to the terms and conditions set forth
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herein, Sub-sublandlord leases the Premises to Sub-subtenant, and Sub-
subtenant hereby leases the Premises from Sub-sublandlord.
2. Term.
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(a) The term of this Sub-sublease shall commence on the date (the
"Commencement Date") which is the later of (i) July 15, 1999, and (ii)
fourteen (14) days after the date on which consent to this Sub-sublease is
given by Sublandlord and Landlord.
(b) Notwithstanding Paragraph 2(a) above, if for any reason Sub-
sublandlord cannot deliver possession of the Premises to Sub-subtenant on the
Commencement Date, Sub-sublandlord shall not be subject to any liability
therefor, nor shall such failure affect the validity of this Sub-sublease or
the obligations of Sub-subtenant hereunder or extend the term hereof, but in
such case Sub-subtenant shall
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not be obligated to pay Rent until possession of the Premises is tendered to
Sub-subtenant.
(c) The term of this Sub-sublease shall end on September 14, 2001;
provided, however, that, subject to Paragraph 12 of this Sub-sublease, the
term of this Sub-sublease shall terminate earlier in the event of the earlier
termination of the Master Sublease for any cause whatsoever.
3. Rent. The rent payable by Sub-subtenant for the Premises shall
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consist of basic rental ("Basic Rent") plus certain additional rental
("Additional Rent"), all as provided below. Basic Rent, Additional Rent, and
any other charges due under this Sub-sublease are hereinafter referred to
collectively as "Rent."
(a) From the Commencement Date until the first anniversary of the
Commencement Date, or if such date is not the first day of a calendar month,
until the first day of the calendar month in which such date occurs, Sub-
subtenant shall pay to Sub-sublandlord in advance, on or before the first day
of each month, without deduction or offset, monthly Basic Rent in the amount
of $75,900.00 per month.
(b) From the first anniversary of the Commencement Date, or if such
date is not the first day of a calendar month, from the first day of the
calendar month in which such date occurs, until the termination of this
Sublease, Sub-subtenant shall pay to Sub-sublandlord in advance, on or before
the first day of each month, without deduction or offset, monthly Basic Rent
in the amount of $80,500.00 per month.
(c) Sub-subtenant also shall pay, as Additional Rent, all additional
rental amounts and such other charges as may be imposed by Sublandlord upon
Sub-sublandlord under the Master Sublease.
(d) To the extent that Additional Rent due under the Master Sublease
is on a monthly basis, such Additional Rent shall be paid to Sub-sublandlord
as en Basic Rent is paid. All Rent shall be paid to Sub-sublandlord at the
address specified for Sub-sublandlord below, or to such other person or to
such other place as Sub-sublandlord may from time to time designate in
writing. To the extent that Additional Rent is payable on an estimated basis
pursuant to the Master Sublease, the Additional Rent due hereunder shall be
adjusted between the parties (with appropriate reimbursements or additional
payments) within twenty (20) days after the actual Additional Rent due under
the Master Sublease has been determined and notice thereof has been delivered
to Sub-subtenant.
(e) Sub-sublandlord shall pay all "Rent" and other monetary amounts
required to be paid under the Master Sublease (collectively, "Underlying
Rent") on or before the date such amounts become due and payable thereunder.
If Sub-sublandlord fails to make any payment of Underlying Rent as and when
required under the Master Sublease, Sub-subtenant shall have the right, but
not the obligation, to make such payments on behalf of Sub-sublandlord, in
which event Sub-subtenant shall have the right to offset any amounts so paid
against Rent payable under this Sub-sublease.
(f) In the event of any casualty or condemnation affecting the
Premises, Rent payable by Sub-subtenant shall be proportionately abated, but
only as to the portion of the Premises damaged or taken; and only to the
extent that Underlying Rent payable under the Master Sublease is abated. Sub-
subtenant shall have no right to terminate the Sub-sublease in connection with
any casualty or condemnation except
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to the extent that the Master Sublease is also terminated as to the Premises
or any portion thereof.
4. Pre-Paid Rent. On the Execution Date, Sub-subtenant shall prepay the
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first full month's Basic Rent; provided that in the event that the
Commencement Date does not occur, such amount shall be refunded to Sub-
subtenant.
5. Security Deposit. On the Execution Date, Sub-subtenant shall pay
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cash to Sub-sublandlord in the amount of $80,500.00 (the "Security Deposit"),
as security for the full and faithful performance of Sub-subtenant's
obligations under this Sub-sublease. If Sub-subtenant defaults on its
obligations hereunder, Sub-sublandlord may use any or all of the Security
Deposit to cure the default or compensate the Sub-sublandlord for its damages
and expenses resulting from the default, in which event, Sub-subtenant shall
promptly deposit with Sub-sublandlord the sum necessary to restore the
Security Deposit to the full amount set forth above. Upon termination of this
Sub-sublease, Sub-sublandlord shall return the balance of the Security Deposit
to Sub-subtenant. Sub-sublandlord shall be entitled to commingle the Security
Deposit with its general funds. Sub-subtenant shall have no right to interest
on the Security Deposit.
6. Condition of Premises. Except as otherwise expressly provided herein,
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Sub-sublandlord subleases the Premises to Sub-subtenant strictly in their
present "as-is" and "with all faults" condition. Upon delivery the Premises
shall be broom clean, all mechanical systems shall be in working order and Sub-
sublandlord shall have removed the security system and the telephone switch
from the Premises. By its acceptance of possession of the Promises Sub-
subtenant acknowledges that the Premises are in tenantable condition and that
all mechanical systems are in good working order as of the Commencement Date.
7. Master Sublease. This Sub-sublease shall be subject and subordinate
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to all of the terms, covenants and conditions of the Master Sublease, and
Sublandlord shall have all rights in respect of the Master Sublease and the
Premises as set forth therein. Sub-subtenant acknowledges that the Master
Sublease Is subject and subordinate to all of the terms, covenants and
conditions of the Master Lease, and Landlord shall have all rights in respect
of the Master Lease and the Premises as set forth therein. Except for payments
and rent under Article 3 of the Master Sublease (which payments shall be made
by Sub-sublandlord), and, except as otherwise provided in Paragraph 8 hereof,
Sub-subtenant hereby assumes and agrees to perform for Sub-sublandlord's
benefit, during the term of this Sub-sublease, all of Su b-sublandlord's
obligations under the Master Sublease, including all obligations incorporated
therein from the Master Lease (the "Assumed Obligations"), which accrue during
the term of this Sub-sublease.
8. Incorporation of Master Sublease.
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(a) Subject to the exclusions, limitations and modifications set forth
in this Sub-sublease, the terms, covenants and conditions of the Master
Sublease are incorporated in this Sub-sublease by reference so that, except to
the extent that they are excluded, limited or otherwise modified by the
provisions of this Sub-sublease for the purpose of incorporation by reference,
each and every term, covenant and condition of the Master Sublease, including
all obligations incorporated therein from the Master Lease, which bind or
inure to the benefit of the Sublandlord under the terms of the Master Sublease
shall, in respect of this Sub-sublease, bind or inure to the benefit of Sub-
sublandlord. Further, subject to the exclusions, limitations and modifications
set forth in this Sub-sublease, the terms, covenants and conditions of the
Master Sublease
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are incorporated in this Sub-sublease by reference so that, except to the
extent that they are excluded, limited or otherwise modified by the provisions
of this Sub-sublease for the purpose of incorporation by reference, each and
every term, covenant and condition of the Master Sublease, including all
obligations incorporated therein from the Master Lease, which bind or inure to
the benefit of the Subtenant under the terms of the Master Sublease shall, in
respect of this Sub-sublease, bind or inure to the benefit of Sub-subtenant.
Such incorporation shall have the same force and effect as if such terms,
covenants and conditions were completely set forth in this Sub-sublease, and as
if the words "Sublessor" and "Sublessee," or words of similar import, wherever
the same appear in the Master Sublease, were construed to mean respectively,
"Sub-sublandlord" and "Sub-subtenant" in this Sub-sublease, and as if the Word
"Sublease," or words of similar import, wherever the same appear in the Master
Sublease, were construed to mean this "Sub-sublease." Sub-subtenant represents
that it has examined, read and is familiar with the terms, covenants and
conditions of the Master Sublease and the Master Lease to the extent the Master
Lease is incorporated into the Master Sublease. Sub-subtenant accepts those
terms, covenants and conditions and obligations thereof which have been
incorporated herein.
(b) The following sections of the Master Sublease are not incorporated
as a part of this Sub-sublease and are expressly excluded herefrom (except
insofar as the same may be referenced elsewhere in this Sub-sublease for
purposes of identification or definition of certain matters): Article 1
(Sublease); Article 2 (Term); Section 3.1 (Base Rent); Section 3.4 (Security
Deposit); Section 16.3 (Master Landlord's Consent); Section 16.6 (Broker);
Section 16.8 (Sublessor's Representations).
(c) The following limitations shall apply to the interpretation and
enforcement of the incorporated terms, covenants and conditions of the Master
Sublease:
(i) Except with respect to the time for payment of Rent, the
time limits contained in the Master Sublease for the giving of notices, making
of demands or performing of any act, condition or covenant on the part of the
Sub-sublandlord, as subtenant thereunder, or for the exercise by the Sub-
sublandlord, as subtenant thereunder of any right, remedy or option, are
changed for the purposes of incorporation herein by reference by shortening
the same in each instance by two (2) business days, so that in each instance
Sub-subtenant shall have two (2) business days less time to observe or perform
hereunder than Sub-sublandlord has as the subtenant under the Master Sublease.
(ii) Any non-liability, release, indemnity or hold harmless
provision, and any provisions pertaining to waiver of subrogation rights and
or the naming of a party under an insurance policy, in the Master Sublease for
the benefit of the Sublandlord which is incorporated herein by reference,
shall be deemed to inure to the benefit of Sub-sublandlord and Sublandlord,
for the purpose of incorporation by reference in this Sub-sublease.
(iii) Any right of the Sublandlord for access or inspection and
any right of the Sublandlord under the Master Sublease to do work in the
Premises, and any right of the Sublandlord in respect of rules and
regulations, shall be deemed to inure to the benefit of Sub-sublandlord and
the Sublandlord, for the purpose of incorporation by reference in this Sub-
sublease.
(iv) if any of the express provisions of this Sub-sublease shall
conflict with any of the provisions incorporated by reference, such conflict
shall be
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resolved in every instance in favor of the express provisions of this Sub-
sublease. If any incorporated provision of the Master Sublease cross-
references a provision of the Master Sublease which is not incorporated in
this Sub-sublease, such cross-referenced Master Sublease provision shall be
disregarded except to the extent required for a fair and equitable
interpretation of the incorporated Master Sublease provision.
(v) Any obligation of Sub-sublandlord which is contained in this
Sub-sublease by the incorporation by reference of the provisions of the Master
Sublease shall be observed or performed by Sub-sublandlord using reasonable
good faith efforts to cause the Sublandlord under the Master Sublease to
observe and/or perform the same, and Sub-sublandlord shall have a reasonable
time do so after written notice from Sub-subtenant specifying with reasonable
particularity the deficiency in Sublandlord's performance under the Master
Sublease. Sub-sublandlord shall not be required to furnish, supply, install,
maintain or repair anything under any provision of the Master Sublease. Sub-
subtenant shall not in any event have any rights in respect of the Premises
greater than Sub-sublandlord's rights under the Master Sublease, and
notwithstanding any provision to the contrary, as to obligations that pertain
to the Premises and Common Area, and are part of this Sub-sublease by the
incorporation by reference of provisions of the Master Sublease, Sub-
sublandlord shall not be required to make any payment or to perform any
obligation, and Sub-sublandlord shall have no liability to Sub-subtenant for
any matter whatsoever, except for Sub-sublandlord's obligation to pay the
Underlying Rent and to use reasonable good faith efforts, upon request of Sub-
subtenant, to cause the Sublandlord to observe and/or perform Sublandlord's
obligations under the Master Sublease. Sub-sublandlord shall not be
responsible for any failure or interruption, for any reason whatsoever, of the
services or facilities that may be appurtenant to or supplied at the Building
by Landlord. Sub-subtenant hereby expressly waives the provisions of any
statute, ordinance or judicial decision which would give Sub-subtenant rights
to make repairs at the expense of Sub-sublandlord.
(vi) With respect to any approval or consent required to be
obtained from Sublandlord under the Master Sublease, such approval or consent
must be obtained from Landlord, Sublandlord, and Sub-sublandlord. Any approval
or consent required of Sub-sublandlord conclusively shall be deemed reasonably
withheld if approval or consent also is required of the Sublandlord or
Landlord, and Sublandlord or Landlord withholds approval or consent.
(d) Sub-subtenant shall fully perform all of the Assumed Obligations
and shall indemnify, defend, protect, and hold harmless Sub-sublandlord from
any and all liability, damages, liabilities, claims proceedings, actions,
demands and costs (including reasonable attorneys' fees) resulting, directly
or indirectly, from Sub-subtenant's failure to perform the Assumed Obligations
unless such failure is caused in whole or in part by Sub-sublandlord's gross
negligence or willful misconduct.
(e) Without limiting the generality of the foregoing, for purposes of
incorporating the terms, covenants and conditions of the Master Sublease into
this Sub-sublease, the following provisions of the Master Sublease are amended
as follows:
(i) Under Article 3 of the Master Sublease, Sub-sublandlord
shall be entitled to rely on any statement or estimate from Landlord regarding
the calculation and payment of Additional Rent and shall be under no duty to
verify the same.
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(ii) Under Article 7 of the Master Sublease, Sub-sublandlord
shall only be required, after written request by Sub-subtenant, to use
commercially reasonable good faith efforts to cause Sublandlord to fulfill its
obligations under the Master Sublease.
(iii) Under Article 15 of the Master Sublease, upon surrender of
the Premises at the expiration or earlier termination of this Sub-sublease,
Sub-subtenant shall return the Premises to Sub-sublandlord in the same
condition as existed upon delivery of the Premises to Sub-subtenant, prior to
the construction of any alterations or improvements as may be made by Sub-
subtenant reasonable wear and tear excepted; provided, however, that Sub-
subtenant shall not be required to remove such alterations or improvements if
Landlord shall agree in writing to waive its right to require Sub-sublandlord
to remove such alterations or improvements upon surrender of the Premises to
Landlord.
9. Notice. Any notice required hereunder to be given to Sub-sublandlord
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shall be to the address as provided adjacent to Sub-sublandlord's signature
below, or at such other address as Sub-sublandlord may from time to time
designate in writing; and Sub-subtenant's notice address shall be as provided
adjacent to Sub-subtenant's signature below, provided that after Sub-subtenant
takes occupancy of the Premises, notices shall be sent to Sub-subtenant at the
address of the Promises. Any notice required or permitted under this Sub-
sublease shall be deemed to have been delivered upon actual receipt or upon
refusal of delivery. Notices under this Sub-sublease shall be permitted to be
transmitted by overnight courier service or by facsimile, in addition to the
other methods permitted under the Master Sublease. Notices sent by facsimile
shall be followed by a mailed copy to the recipient's notice address and shall
be effective (a) on the date received if transmission is made on a business
day and received before 5:00 p.m. that same day, or (b) in all other cases, on
the business day next following receipt of the facsimile transmission.
10. Assignment and Sub-subletting. Except as expressly permitted under the
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Master Sublease and Master Lease, Sub-subtenant shall not assign this Sub-
sublease or sublet all or any part of the Premises, or hypothecate or otherwise
encumber its interest under this Sub-sublease, or allow any other person or
entity to use or occupy all or any part of the Premises. Notwithstanding the
foregoing, Sub-sublandlord will not unreasonably withhold its consent to a
further assignment or Sublease of all or a portion of the Premises as permitted
by the Master Lease and the Master Sublease.
11. Brokerage. Each party warrants and represents to the other that
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such party has not retained the services of any real estate broker, finder or
any other person whose services would form the basis for any claim for an
commission or fee in connection with this Sub-sublease or the transactions
contemplated hereby. Each party agrees to save, defend, indemnify and hold the
other party free and harmless from any breach of its warranty and
representation as set forth in the preceding sentence, including the other
party's attorneys' fees.
12. Sub-sublandlord's Obligations. Except as expressly otherwise provided
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herein, Sub-sublandlord shall have no obligations to Sub-subtenant with
respect to the Premises or the performance by Landlord of any obligations of
Landlord under the Master Lease.
13. Early Termination of Master Lease. If, without the fault of Sub-
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sublandlord hereunder the Master Lease should terminate prior to the
expiration of this Sub-sublease, Sub-sublandlord shall have no liability to
Sub-subtenant. To the extent that
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the Master Lease grants Sub-sublandlord any discretionary right to terminate
the Master Lease, whether due to casualty, condemnation, or otherwise, Sub-
sublandlord shall be entitled to exercise or not exercise such right in its
sole and absolute discretion.
14. Holdover. Rent payable during any holdover after termination of this
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Sublease without the consent of Sub-sublandlord shall be one hundred fifty
percent (150%) of the Underlying Rent for such period under the Master
Sublease.
15. Consent of Landlord. If Sub-sublease desires to take any action which
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requires the consent of Landlord pursuant to the terms of the Master Lease,
including, without imitation, the making of any alterations, then,
notwithstanding anything to the contrary herein, (a) Sub-sublandlord,
independently, shall have the same rights of approval or disapproval as Landlord
has under the Master Lease, (b) Sub-subtenant shall not take any such action
until it obtains the consent of both Sub-sublandlord (whose consent shall not be
unreasonably withheld) and Landlord, and (c) Sub-subtenant shall request that
Sub-sublandlord obtain Landlord's consent on Sub-subtenant's behalf and Sub-
sublandlord shall use commercially reasonable efforts to obtain such consent,
unless Sub-sublandlord and Landlord agree that Sub-subtenant may contact
Landlord directly with respect to the specific action for which Landlord's
consent is required.
16. No Third Party Rights. Except as otherwise expressly provided herein,
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the benefit of the provisions of this Sub-sublease is limited to Sub-
sublandlord and Sub-subtenant and to their successors and assigns. No third
party shall be construed to have any rights as a third party beneficiary with
respect to any of the provisions of this Sub-sublease; provided, however, that
Landlord shall be entitled to the benefit of (a) Sub-subtenant's assumption of
the Assumed Obligations pursuant to Paragraph 7 above, (b) Sub-subtenant's
indemnities under this Sub-sublease and (c) Sub-subtenant's waivers and
covenants to hold harmless under this Sub-sublease.
17. Sublandlord and Landlord Consent. This Sub-sublease is subject to the
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consent of the Sublandlord and Landlord. Sub-sublandlord agrees to use
commercially reasonable efforts to obtain the consent of Sublandlord and
Landlord to this Sub-sublease as soon as reasonably possible following execution
of this Sub-sublease by Sub-subtenant and Sub-sublandlord, and shall provide
Sub-subtenant with notice of Sub-sublandlord's submittal of this Sub-sublease to
Sublandlord and Landlord for approval. In the event that Sublandlord's or
Landlord's consent is not obtained within ten (10) days following the submittal
of this Sub-sublease by Sub-sublandlord to Sublandlord and Landlord for consent,
each of Sub-sublandlord and Sub-subtenant shall have the right to terminate this
Sub-sublease by providing written notice of termination to the other party
within five (5) days after the expiration of such ten (10) day period. Unless
exercised prior thereto, this right of termination hereunder shall expire upon
the delivery to Sub-subtenant of Sublandlord's and Landlord's consent. For
purposes of this paragraph, Sublandlord's and Landlord's consent shall be deemed
to have been given as of the date when Sublandlord's and Landlord's
unconditional consent to this Sub-sublease has been obtained, or, in the event
such consent is conditional, the date upon which such conditions have been fully
satisfied or waived by Sublandlord and Landlord.
18. Counterparts. This Sub-sublease may be executed in any number of
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counterparts, each of which counterparts shall be deemed to be an original, and
all of which together shall constitute one and the same instrument.
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19. Status of Sublease. Sub-sublandlord hereby represents and warrants
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to Sub-subtenant that (i) the Master Sublease attached hereto as Exhibit A
(with the Master Lease as an exhibit thereto) has been executed and delivered
by Sublandlord and Sub-sublandlord and constitutes the entire agreement of the
parties thereto relating to the lease of the Premises, (ii) no default or
breach by Sub-sublandlord or, to the best of Sub-sublandlord's knowledge, by
Sublandlord, exists under the Master Sublease, (iii) no event has occurred
that, with the passage of time, the giving of notice, or both, would
constitute a default or breach by Sub-sublandlord or, to the best of Sub-
sublandlord's knowledge, by Sublandlord under the Master Sublease, and (iv)
subject to receipt of Sublandlord s and Landlord's written consent hereto, Sub-
sublandlord has the right and power to execute and deliver this Sub-sublease
and to perform its obligations hereunder. Sub-sublandlord shall not modify the
Master Sublease in such a manner as to increase the obligations of Sub-
subtenant hereunder or under the Master Sublease, without the prior written
consent of Sub-subtenant, which shall not be unreasonably withheld or delayed.
IN WITNESS WHEREOF, the parties have executed this Sub-sublease as of the
date first written above.
Address: SUB-SUBLANDLORD:
Cadence Design Systems, Inc. CADENCE DESIGN SYSTEMS, INC., a Delaware
0000 Xxxxx Xxxx corporation
Bldg. 5, MS 5A1
Xxx Xxxx, XX 00000 /s/ Xxxx X. Xxxxx
Attn: Director, Facilities and ---------------------------------------
Real Estate By: Xxxx X. Xxxxx
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Its: Director Real Estate
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By:
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Its:
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Address: SUB-SUBTENANT:
_______________________________ eGAIN COMMUNICATION CORPORATION,
_______________________________ a Delaware corporation
_______________________________
_______________________________ /s/ Xxxxxxxx Xxx
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By: Xxxxxxxx Xxx
Its: Chief Executive Officer
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By:
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Its:
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AGREED AND APPROVED:
SUBLANDLORD:
CISCO SYSTEMS, INC., a California corporation
/s/ Xxxxx X. Xxxxxxx
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By: Xxxxx X. Xxxxxxx
Its: Director
Worldwide Real Estate
LANDLORD:
X.X. XxXXXXXX COMPANIES INC., a ________
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By:
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Its:
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CONSENT TO SUB-SUBLETTING
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THIS AGREEMENT ("Agreement") is made as of August 9, 1999 by and among Sequoia
M&M LLC, a California limited liability company and Xxxxxx Xxxxxx LLC, a
California limited liability company (collectively, "Landlord"), Cisco Systems,
Inc., a California corporation ("Tenant"), Cadence Design Systems, Inc., a
Delaware corporation ("Subtenant") and eGain Communications Corporation, a
Delaware corporation ("Sub-Subtenant"), with reference to the following facts:
A. Landlord, as successor-in-interest to Sunnyvale Research Plaza
Associates, a California limited partnership, and Tenant entered into that
certain Standard Form Leak (Industrial; Single-Tenant; Net) dated May __, 1995,
("Master Lease"), relating to certain premises more particularly described in
the Master Lease ("Premises").
B. Tenant, as successor-in-interest to Combinet, Inc., a California
corporation, and Subtenant entered into a Sublease dated June 3, 1996
("Sublease"). By the terms of the Sublease, Tenant subleased to Subtenant and
Subtenant subleased from Tenant, all of the Premises consisting of approximately
46,000 square feet of space located at 000 Xxxx Xxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxxx, as more particularly described in the Sublease (the "Sublease
Premises").
C. Subtenant and Sub-Subtenant have entered into a Sub-Sublease dated June
__, 1999 ("Sub-sublease") by the terms of which Subtenant will sublease to Sub-
Subtenant and Sub-Subtenant will Sub-sublease from Subtenant all of the Sublease
Premises, as more particularly described the Sub-Sublease.
D. Tenant has requested that Landlord consent to Subtenant sub-subletting
the Sublease Premises to Sub-Subtenant pursuant to the Sub-Sublease. Landlord
has agreed to consent to such subletting on the following terms and conditions.
NOW, THEREFORE, in consideration of the foregoing, and in consideration of
the mutual agreements and covenants hereinafter set forth, Landlord, Tenant,
Subtenant and Sub-Subtenant agree as follows:
1. Definitions. Unless otherwise defined in this Agreement, all defined
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terms used in this Agreement shall have the meaning and definition given them
in the Master Lease.
2. Master Lease.
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2.1 Tenant, Subtenant and Sub-Subtenant acknowledge and agree that the
"Landlord" identified in the Sub-Sublease is incorrect and the correct name of
the Landlord is identified in this Agreement. The Sublease and Sub-Sublease are
and shall be at all times subject and subordinate to all of the terms and
conditions of the Master Lease. In case of any conflict between the provisions
of the Master Lease and the provisions of the Sublease, as between Tenant and
Landlord, the provisions of the Master Lease shall prevail unaffected by the
Sublease or Sub-Sublease. Sub-Subtenant shall not violate any of the terms and
conditions of the Master Lease to the extent applicable to the use and occupancy
of the Sublease Premises. Any breach of the Master Lease or Sublease by Tenant,
any breach of the Sublease, Sub-sublease or Master Lease by Subtenant or any
breach of the Sub-Sublease, Sublease or Master Lease by Sub-Subtenant which
results in a breach of the Master Lease shall entitle Landlord to all the rights
and remedies provided in the Master Lease,
2.2 Subtenant and Sub-Subtenant acknowledge and agree that the term of the
Sub Sublease shall automatically terminate upon the termination of the Master
Lease for any reason whatsoever, including, without limitation, the
termination of the Master Lease prior to the expiration of the term thereof
pursuant to a written agreement by and between Landlord and Tenant.
Notwithstanding any provision to the contrary in the Sublease, Sub-Sublease or
in any other agreement, Subtenant and Sub-Subtenant acknowledge that neither
of them shall have any right and there shall not be vested in either of them
any right to exercise rights of first refusal, option, or other similar
preferential rights, if any, given to Tenant under the Master Lease.
2.3 Subtenant and Sub-Subtenant represent and warrant to Landlord that
there are no additional payments of rent or consideration of any type payable
by Sub-Subtenant to Subtenant with regard to the Sublease Premises other than
as disclosed in the Sub-Sublease, a true and complete copy of which is
attached hereto as Exhibit A and incorporated herein by this reference.
---------
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3. Consent of Landlord. Landlord hereby consents to the sub-subletting
-------------------
of the Sublease Premises to Sub-Subtenant pursuant to the terms of the Sub-
Sublease. Landlord's consent shall not release or discharge Tenant of any of
its obligations under the Master Lease or release, discharge or alter the
primary liability of Tenant to pay rent and all other sums due under the
Master Lease and to perform. and comply with all other obligations of Tenant
under the Master Lease. As between Landlord and Tenant, the Sub-Sublease shall
not alter, amend or otherwise modify the provisions of the Master Lease.
Landlord shall have no obligations to any party in connection with the
Sublease Premises other than those obligations set forth in the Master Lease.
Landlord shall not be bound or estopped in any way by the provisions of the
Sub-sublease.
4. Insurance.
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4.1 Sub-Subtenant shall, at Sub-Subtenant's expense, with respect to
the Sublease Premises, secure and keep in force during the term of the Sub-
Sublease such insurance as is required of Tenant under the Master Lease. Such
policy or policies of insurance shall name Landlord and its lenders, if any,
as additional insured(s). A certificate evidencing such insurance shall be
delivered to Landlord promptly after the date hereof.
4.2 Landlord, by giving Landlord's consent to the Sub-Sublease, Sub-
Subtenant and Subtenant hereby mutually waive their respective rights of
recovery against one another for any loss of, or damage to, any of such
parties' property to the extent that such loss or damage is insured by an
insurance policy required to be in effect at the time of such loss or damage.
Each party shall obtain any special endorsements, if required by its insurer,
whereby the insurer waives its rights of subrogation against the other party.
This provision is intended to waive fully, and for the benefit of the parties
hereto, any rights and/or claims which might give rise to a right of
subrogation in favor of any insurance carrier. The coverage obtained by Sub-
Subtenant shall include, without limitation, a waiver of subrogation
endorsement attached to the certificate of insurance.
5. Assignment and Sub-Subletting. Sub-Subtenant shall not voluntarily or
-----------------------------
by operation of law, (1) mortgage, pledge, hypothecate or encumber the Sub-
Sublease or any interest therein, (2) assign or transfer the Sub-Sublease or
any interest therein, sub-sublet the Sublease Premises or any part thereof,
without first obtaining the written consent of Landlord.
6. Miscellaneous Provisions.
------------------------
6.1 Subtenant and Sub-Subtenant agree not to amend, modify,
supplement, or otherwise change in any respect the Sub-Sublease except with
the prior written consent of Landlord, which consent shall not be unreasonably
withheld. This Agreement shall not create in Sub-Subtenant, as a third party
beneficiary or otherwise, any rights except as set forth in this Agreement.
6.2 Copies of any notices of default sent by Tenant, Subtenant and/or
Sub-Subtenant under the Master Lease, Sublease or Sub-Sublease, as applicable,
shall be delivered to Landlord at the address set forth in the Master Lease at
the same time such notices are sent to any other party.
6.3 This Agreement, together with the provisions of the Master Lease
relating to subletting or assigning, contains the entire agreement between the
parties hereto regarding the matters which are the subject of this Agreement.
In the event of a permitted assignment under the Master Lease by Landlord or
Tenant of its interest in the Master Lease, then the assignee of either
Landlord or Tenant, as appropriate, shall automatically be deemed to be the
assignee of Landlord or Tenant under this Agreement, and shall assume their
respective obligations. No other assignments of this Agreement shall be
permitted, except with the written consent of all parties hereto. Any
attempted assignment in violation of this section shall be void. The terms,
covenants and conditions of this Agreement shall apply to and bind the heirs,
successors, the executors and administrators and permitted assigns of all the
parties hereto. The parties acknowledge and agree that no rule or
construction, to the effect that any ambiguities are to be resolved against
the drafting party, shall be employed in the interpretation of this Agreement.
If any provision of this Agreement is determined to be illegal or
unenforceable, such determination shall not affect any other provisions of
this Agreement, and all such other provisions shall remain in full force and
effect.
6.4 If any party hereto fails to perform any of its obligations under
this Agreement or if any dispute arises between the parties hereto concerning
the meaning or interpretation of any provision of this Agreement, then the
defaulting party or the party not prevailing in such dispute, as the case may
be, shall pay any and all costs and expenses incurred by the other parties on
account of such default and/or in enforcing or establishing its rights
hereunder, including, without limitation, court costs and reasonable
attorneys' fees and disbursements. Any such attorneys' fees and other expenses
incurred by any party in
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enforcing a judgment in its favor under this Agreement shall be recoverable
separately from and in addition to any other amount included in such judgment,
and such attorneys' fees obligation is intended to be severable from the other
provisions of this Agreement and to survive and not be merged into any such
judgment.
6.5 This Agreement may be executed in any number of counterparts,
provided each of the parties hereto executes at least one counterpart hereof
shall be deemed to be an original instrument, but all such counterparts
together shall constitute but one agreement. The parties agree that the
delivery of an executed copy of this Agreement by facsimile shall be legal and
binding and shall have the same full force and effect as if an original of
this Agreement had been delivered. Facsimile signatures shall be binding upon
the parties.
6.6 Tenant, Subtenant and Sub-Subtenant covenant and agree that under
no circumstances shall Landlord be liable for any brokerage commission or
other charge or expense in connection with the Sub-Sublease or this Agreement
and Tenant, Subtenant and Sub-Subtenant agree to protect, defend, indemnify
and hold Landlord harmless from the same and from any cost or expense
(including but not limited to attorneys' fees) incurred by Landlord in
resisting any claim for any such brokerage commission.
6.7 The terms and provisions of this Agreement shall be construed in
accordance with and governed by the laws of the State of California.
6.8 Tenant, Subtenant and Sub-Subtenant agree that the liability of
Landlord hereunder and any recourse by Tenant, Subtenant or Sub-Subtenant
against Landlord shall be subject to the limitations on liability set forth in
the Master Lease. In addition, neither Landlord, nor any of its constituent
members, partners, subpartners, or agents, shall have any personal liability
to Tenant, Subtenant and/or Sub-Subtenant.
IN WITNESS WHEREOF, Landlord, Tenant, Subtenant and Sub-Subtenant have
executed this Agreement as of the day and year first hereinabove written.
LANDLORD:
Sequoia M&M LLC, a California limited liability company
By: XX XxXxxxxx Companies Inc.,
a California corporation
By: /s/ XX XxXxxxxx
------------------------------------------
XX XxXxxxxx, President
Xxxxxx Xxxxxx LLC,
a California limited liability company
By: /s/ J. Xxxxxx XxXxxxxx
----------------------------------------------
J. Xxxxxx XxXxxxxx, Manager
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Landlord's Address for Notices:
c/o The XxXxxxxx Companies
00 Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxx Xxxx, Xxxxxxxxxx, 00000
TENANT:
Cisco Systems, Inc.
a California corporation
By: /s/ Xxxxx Xxxxxxx
------------------------------------
Xxxxx Xxxxxxx
Director
Worldwide Real Estate
SUBTENANT:
Cadence Design Systems, Inc.
a Delaware corporation
By: /s/ Xxxx Xxxxx
------------------------------------
Its:
--------------------------------
By:
------------------------------------
Its:
--------------------------------
SUB-SUBTENANT:
eGain Communication Corporation, a
Delaware Corporation
By: /s/ Xxxx Xxxx
------------------------------------
Its: VP Finance
--------------------------------
By:
------------------------------------
Its:
--------------------------------
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