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EXHIBIT 10.17
SUBLEASE AGREEMENT
EFFECTIVE DATE: December 31, 1998
ARTICLE 1: FUNDAMENTAL SUBLEASE PROVISIONS.
Article 1.1 PARTIES:
Sublessor: SILICON GRAPHICS, INC.,
a Delaware corporation
Sublessee: VERITAS SOFTWARE CORPORATION,
a Delaware corporation
MASTER LEASE: Sublessor, as tenant, is leasing from Master Lessor (as
described below), as landlord, approximately 92,400 square feet of space
located at 000 Xxxx Xxxxxx, Xxxxxxxx Xxxx, XX 00000 (the "Premises") upon the
terms and conditions of that certain Lease Agreement dated March 16, 1995, as
amended by Amendment No. 1 to Lease dated December 8, 1995 (collectively, the
"Master Lease"). A copy of the Master Lease is attached hereto as Exhibit A.
Article 1.2 MASTER LESSOR. Xxxx Xxxxxxxxx, Trustee, or his Successor Trustee,
UTA dated 7/20/77 (XXXX XXXXXXXXX SEPARATE PROPERTY TRUST), as
amended, and XXXXXXX X. XXXXX, Trustee, or his Successor Trustee,
UTA dated 7/20/77 (XXXXXXX X. XXXXX SEPARATE PROPERTY TRUST), as
amended.
Article 1.3 SUBLEASE PREMISES: The Sublease Premises consists of the entirety
of the Premises and contains approximately 92,400 square feet
(the "Sublease Premises").
Article 1.4 SUBLEASE TERM: The Sublease Term shall commence on the
Commencement Date and end on the Termination Date, unless
terminated earlier pursuant to the terms of this Sublease.
Article 1.5 COMMENCEMENT DATE: March 1, 1999
Article 1.6 TERMINATION DATE: August 15, 2005, subject to earlier termination
on August 31, 2002 pursuant Article 19.9.1 below.
Article 1.7 RENTAL COMMENCEMENT DATE: March 1, 1999
Article 1.8 MINIMUM MONTHLY RENT:
3/1/99 - 8/31/02 $231,000.00 ($2.50/sq.ft./month NNN)
9/1/02 - 8/31/05 100% of fair market rental as determined
pursuant to Article 19.9.2 below.
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Article 1.9 PREPAID RENT: $231,000.00
Article 1.10 SECURITY DEPOSIT: $231,000.00
Article 1.11 PERMITTED USE: General office and research and development
and such other uses permitted under the Master Lease.
Article 1.12 ADDRESSES FOR NOTICES:
Master Lessor:
Sublessor: SILICON GRAPHICS, INC.
0000 X. Xxxxxxxxx Xxxx.
Xxxxxxxx Xxxx, XX 00000-0000
Attn: Manager, Corporate Real Estate
M/S 720
With copy to:
SILICON GRAPHICS, INC.
0000 X. Xxxxxxxxx Xxxx.
Xxxxxxxx Xxxx, XX 00000-0000
Attn: Legal Services
M/S 710
Sublessee: Veritas Software Corporation
0000 Xxxxxxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
Attn: General Counsel
Article 1.13 SUBLESSOR'S BROKER: Cornish and Xxxxx Commercial
Article 1.14 SUBLESSEE'S BROKER: E&Y Xxxxxxx Xxxxxxxxx Company
Article 1.15 EXHIBITS AND ADDENDA: The following exhibits and any addenda
are annexed to this Sublease:
Exhibit A - Master Lease
Each reference in this Sublease Agreement ("Sublease") to any provision in
Article 1 shall be construed to incorporate all of the terms of each such
provision. In the event of any conflict between this Article 1 and the balance
of the Sublease, the balance of the Sublease shall control.
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ARTICLE 2: SUBLEASE PREMISES.
Article 2.1 SUBLEASE. Sublessor hereby subleases to Sublessee and Sublessee
hereby subleases from Sublessor for the Sublease Term, at the Rent and upon the
terms and conditions hereinafter set forth, the Sublease Premises. Sublessee
acknowledges that the area of the Sublease Premises as specified in Article 1
is an estimate and that Sublessor does not warrant the exact area of the
Sublease Premises. By taking possession of the Sublease Premises, Sublessee
accepts the area of the Sublease Premises as that specified in Article 1.
Article 2.2 CONDITION OF THE SUBLEASE PREMISES. Sublessee shall accept
possession of the Sublease Premises on the Commencement Date in its "as-is,
where-is" condition. Sublessor shall have no obligation to Sublessee to
construct any tenant improvements or provide Sublessee with any tenant
improvement allowance under this Sublease. Sublessee acknowledges that except
as expressly stated in this Sublease, (i) Sublessor makes no warranties or
representations regarding the physical condition of the Sublease Premises; (ii)
Sublessee has had an opportunity to inspect the Sublease Premises, including
the roof and structural components of the building; the electrical, plumbing,
HVAC, and other building systems serving the Sublease Premises; and the
environmental condition of the Sublease Premises and related common areas; and
to hire experts to conduct such inspections on its behalf; (iii) Sublessee is
leasing the Sublease Premises based on its own inspection of the Sublease
Premises and those of its agents, and is not relying on any statements,
representations or warranties of Sublessor or its employees, brokers, agents or
other representatives regarding the physical condition of the Sublease
Premises; and (iv) the Sublease Premises will not include Sublessor's
furniture, movable partitions (including power distribution systems servicing
movable partitions) and card-key access systems. Sublessee's taking of
possession of the Sublease Premises shall constitute conclusive evidence that
the Sublease Premises are in good, clean and tenantable condition, subject to
Section 19.9.3 below.
ARTICLE 3: TERMS OF THE MASTER LEASE.
Article 3.1 SUBLEASE SUBORDINATE. This Sublease is subordinate and subject
to all of the terms and conditions of the Master Lease. If the Master Lease
terminates for any reason whatsoever, this Sublease shall terminate
concurrently, and the parties hereto shall be relieved of any liability
thereafter accruing under this Sublease.
Article 3.2 ASSUMPTION OF OBLIGATIONS. To the extent applicable to the
Sublease Premises and Sublessee's use of the Sublease Premises and common
areas, Sublessee hereby expressly agrees to comply with, and assumes and agrees
to perform and discharge, as and when required by the Master Lease, all duties
and obligations to be paid, performed or discharged by Sublessor under the
terms, covenants and conditions of the Master Lease from and after the
Commencement Date, except as specifically set forth in this Sublease. Sublessee
shall not commit or suffer at any time any act or omission that would violate
any provision of the Master Lease. So long as Sublessee complies with the terms
and conditions, and performs all of its obligations under this Sublease,
Sublessor shall not commit any act or omission during the Sublease Term which
would lead to the termination of the Master Lease by Master Lessor.
Notwithstanding the foregoing, if Sublessee fails to comply with any of its
obligations under this Sublease, and does not cure such failure within the
applicable cure period following proper notification from Sublessor, then
Sublessor shall have no obligation to Sublessee to maintain the Master Lease
for Sublessee's benefit.
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Article 3.3 MASTER LESSOR'S OBLIGATIONS. Sublessor shall not be responsible
to Sublessee for furnishing any service, maintenance or repairs to the Sublease
Premises which are the obligation of the Master Lessor under the Master Lease,
it being understood that Sublessee shall look solely to Master Lessor for
performance of any such service, maintenance or repairs. However, if Master
Lessor shall fail to perform its obligations under the Master Lease, Sublessor,
upon receipt of written notice from Sublessee, shall use commercially
reasonable efforts to attempt to enforce the obligations of Master Lessor under
the Master Lease; provided, however, that Sublessor shall not be required to
incur any costs or expenses in connection therewith unless Sublessee agrees to
reimburse Sublessor for any such costs and expenses as Additional Rent
hereunder.
Article 3.4 SUBLESSOR'S RIGHTS AND REMEDIES. In addition to all the rights
and remedies provided to Sublessor at law or in equity, (a) if Sublessee fails,
within any applicable grace periods provided herein, to perform any act on its
part to be performed pursuant to the requirements of the Master Lease or as
otherwise required by this Sublease, then Sublessor may, but shall not be
obligated to, enter he Sublease Premises to perform such act, and all costs and
expenses incurred by Sublessor in doing so shall be deemed Additional Rent
payable by Sublessee to Sublessor upon demand; and (b) in the event of any
breach by Sublessee of any of its obligations under this Sublease, Sublessor
shall have all of the rights with respect to such default which are available
to Master Lessor under the Master Lease. Unless otherwise provided in this
Sublease, Sublessee shall be in material default of its obligations under this
Sublease if (i) Sublessee fails to pay Rent as and when due and such failure is
not cured within the time period set forth in the Master Lease, or (ii)
Sublessee fails to perform any term, covenant or condition of this Sublease as
and when due (except those requiring payment of Rent) and such failure is not
cured within the time period set forth in the Master Lease less ten (10) days.
ARTICLE 4: SUBLEASE TERM.
Article 4.1 COMMENCEMENT AND TERMINATION DATES. The term of this Sublease
("Sublease Term") shall be for the period of time commencing on the
commencement date described in Article 1 (the "Commencement Date") and ending
on the termination date described in Article 1 or on such earlier date of
termination as provided herein (the "Termination Date"). Sublessee shall have
no option to extend or renew the Sublease Term.
Article 4.2 DELAY IN COMMENCEMENT. If for any reason possession of the
Sublease Premises has not been delivered to Sublessee by the scheduled
Commencement Date or any other date, Sublessor shall not be liable to Sublessee
or any other person or entity for any loss or damage resulting therefrom. In
the event of such delay, the Commencement Date shall be delayed until
possession of the Sublease Premises is delivered to Sublessee, but the
Termination Date shall not be extended. If Sublessor is unable to deliver
possession of the Sublease Premises to Sublessee within thirty (30) days after
the Commencement Date, then Sublessee may terminate this Sublease by giving
written notice to Sublessor at any time after that date, and the parties shall
have no further liability thereafter accruing under this Sublease. In the event
that this Sublease is terminated pursuant to the terms of this Article 4.2,
Sublessor shall return to Sublessee any Prepaid Rent and/or Security Deposit
delivered to Sublessor pursuant to the terms hereof.
Article 4.3 EARLY OCCUPANCY. If Sublessor permits Sublessee to occupy the
Sublease Premises prior to the Rental Commencement Date, such occupancy shall
be subject to all of the provisions of this Sublease, except for the payment of
Minimum Monthly Rent. Early occupancy of the Sublease Premises shall not
advance the Termination Date. Sublessee shall, prior to entering the Sublease
Premises,
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deliver to Sublessor certificates of insurance evidencing the policies required
of Sublessee under this Sublease.
ARTICLE 5: RENT AND ADDITIONAL EXPENSES.
Article 5.1 PAYMENT OF RENT. All monies payable by Sublease under this
Sublease shall constitute "Rent." All Rent shall be paid in lawful money of the
United States, without any deduction or offset, to Sublessor at the address of
Sublessor specified in Article 1 or such other place as Sublessor may designate
in writing. No payment by Sublessee of a lesser amount than the Rent herein
stipulated shall be deemed to be other than on account of the earliest
stipulated Rent, nor shall any endorsement or statement on any check or any
letter accompanying any check or payment of Rent be deemed an accord and
satisfaction, and Sublessor may accept such check or payment without prejudice
to its right to recover the balance of such Rent or to pursue any other remedy.
Rent for any partial calendar months at the beginning or end of the Sublease
Term shall be prorated based on a thirty (30) day month.
Article 5.2 MINIMUM MONTHLY RENT. Sublessee shall pay to Sublessor the
sums set forth in Article 1 hereof as Minimum Monthly Rent, in advance, on the
first day of each calendar month throughout the Sublease Term, commencing on
the Rental Commencement Date.
Article 5.3 ADDITIONAL RENT. In addition to Minimum Monthly Rent,
Sublessee shall pay to Sublessor from time to time upon demand, the amount of
any real property taxes, maintenance, insurance, utilities and other charges
attributable to the Sublease Premises and common and outside areas payable by
Sublessor under the Master Lease. Sublessee agrees that any and all charges,
fees, impositions and payments of any kind whatsoever due or owing by Sublessor
under the Master Lease and accruing from and after the Commencement Date (and,
with regard to Additional Rent, from and after the Early Occupancy Date) shall
be passed through to Sublessee as Additional Rent hereunder; provided, however,
that Sublessee shall have no obligation to pay any late fees attributable to
Sublessor's failure to timely pay rent under the Master Lease, provided that
Sublessee has paid all Rent as and when due under this Sublease.
Article 5.4 PREPAID RENT. Concurrently with Sublessee's execution of this
Sublease, Sublessee shall pay to Sublessor the sum specified in Article 1 as
prepaid Rent, which shall be applied to the installments of Minimum Monthly
Rent first coming due under this Sublease.
Article 5.5 LATE CHARGE. If Sublessee fails to pay any Rent due hereunder
within five (5) days after Sublessor notifies Sublessee that such amount is past
due, then Sublessee shall pay Sublessor a late charge equal to five percent (5%)
of such delinquent amount as liquidated damages for Sublessee's failure to make
timely payment. Any notice given by Sublessor pursuant to Sections 1161 and 1162
of the California Code of Civil Procedure shall be deemed to be concurrent with,
and not in addition to, the notice required herein. This provision for a late
charge shall not be deemed to grant Sublessee a grace period or extension of
time for performance. If any Rent remains delinquent for a period in excess of
thirty (30) days then, in addition to such late charge, Sublessee shall pay to
Sublessor interest on the delinquent amount from the end of such thirty (30) day
period until paid, at the rate of ten percent (10%) per annum or the maximum
rate permitted by law.
ARTICLE 6: SECURITY DEPOSIT. Upon execution of this Sublease, Sublessee shall
deposit with Sublessor in cash the sum specified in Article 1 hereof as a
"Security Deposit." If the Minimum Monthly Rent shall increase during the
Sublease Term, then Sublessee shall, on or before the date of such increase,
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pay to Sublessor an amount sufficient to increase the Security Deposit to the
amount of the increased Minimum Monthly Rent. The Security Deposit shall be
held by Sublessor as security for Sublessee's faithful performance under this
Sublease. If Sublessee fails to pay any Rent as and when due under this
Sublease or otherwise fails to perform its obligations hereunder, then
Sublessor may, at its option and without prejudice to any other remedy which
Sublessor may have, apply, use or retain all or any portion of the Security
Deposit toward the payment of delinquent Rent or for any loss or damage
sustained by Sublessor due to such failure by Sublessee. Sublessee shall upon
demand restore the Security Deposit to the original sum deposited. The Security
Deposit shall not bear interest nor shall Sublessor be required to keep such
sum separate from its general funds. To the extent not otherwise applied by
Sublessor as provided herein, the Security Deposit shall be returned to
Sublessee within thirty (30) days after the Termination Date. In the event of
bankruptcy or other debtor-creditor proceedings filed by or against Sublessee,
such Security Deposit shall be deemed to be applied first to the payment of
Rent due Sublessor for the period immediately prior to the filing of such
proceedings.
ARTICLE 7: USE.
Article 7.1 USE OF THE SUBLEASE PREMISES. Sublessee shall use the Sublease
Premises solely for the purposes specified in Article 1 and otherwise in strict
conformance with the requirements of the Master Lease, and for no other purpose
whatsoever.
Article 7.2 SUITABILITY. Sublessee acknowledges that neither Sublessor nor
any agent of Sublessor has made any representation or warranty with respect to
the Sublease Premises, the permitted uses that can be made of the Sublease
Premises under existing laws, or the suitability of the Sublease Premises for
the conduct of Sublessee's business, nor has Sublessor agreed to undertake any
modification, alteration or improvement to the Sublease Premises.
Article 7.3 ALTERATIONS. Sublessee shall make no alterations, improvements
or additions to, in, on or about the Sublease Premises without the prior
written consent of both Sublessor and Master Lessor (which consent shall not be
unreasonably withheld by Sublessor) and otherwise in strict conformance with
the requirements of the Master Lease.
Article 7.4 HAZARDOUS MATERIALS.
Article 7.4.1 DEFINITIONS. As used herein, the term "Hazardous Material"
shall mean any hazardous or toxic substance, material or waste which is or
becomes regulated by any state, federal, or local government authority,
including all of those materials and substances designated as hazardous or
toxic by the Environmental Protection Agency, the California Water Quality
Control Board, the Department of Labor, the California Department of Industrial
Relations, the Department of Transportation, the Department of Agriculture, the
Department of Health Services or the Food and Drug Agency. Without limiting the
generality of the foregoing, the term "Hazardous Material" shall include (i)
any substance, product, waste or other material of any nature whatsoever which
may give rise to liability under any statutory or common law theory based on
negligence, trespass, intentional tort, nuisance or strict liability or under
any reported decisions of a state or federal court; (ii) gasoline, diesel fuel,
or other petroleum hydrocarbons; (iii) polychlorinated biphenyls; (iv) asbestos
containing materials; (v) urea formaldehyde foam insulation; and (vi) radon
gas. As used herein, the term "Hazardous Material Law" shall mean any statute,
law, ordinance, or regulation of any governmental body or agency which
regulates the use, storage, generation, discharge, treatment, transportation,
release, or disposal of any Hazardous Material.
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Article 7.4.2 USE RESTRICTION. Sublessee shall not cause or permit
any Hazardous Material to be used, stored, generated, discharged, treated,
transported to or from, released or disposed of in, on, over, through, or about
the Sublease Premises, or any other land or improvements in the vicinity of the
Sublease Premises, without the prior written consent of Master Lessor and
Sublessor, which consent may be withheld in the sole and absolute discretion of
Master Lessor and/or Sublessor, except for ordinary office and cleaning
supplies. Without limiting the generality of the foregoing, (a) any use,
storage, generation, discharge, treatment, transportation, release, or disposal
of Hazardous Material by Sublessee shall strictly comply with all applicable
Hazardous Material Laws, and (b) if the presence of Hazardous Material on the
Sublease Premises caused or permitted by Sublessee or its agents, employees,
invitees or contractors results in contamination of the Sublease Premises or any
soil, air, ground or surface waters under, through, over, on, in or about the
Sublease Premises, Sublessee, at its expense, shall promptly take all actions
necessary to return the Sublease Premises to the condition prior to the
existence of such Hazardous Material.
Article 7.4.3 INDEMNITY.
Article 7.4.3.1 Sublessee shall defend, protect, hold harmless and
indemnify Sublessor and its agents, employees, contractors, stockholders,
officers, directors, successors and assigns with respect to all judgments,
claims, damages, actions, losses, penalties, fines, liabilities and other
expenses (including, but not limited to, reasonable attorneys', consultants',
and expert witnesses' fees) which result from or arise out of the storage, use,
generation, discharge, treatment, transportation, release or disposal of
Hazardous Material by Sublessee or its agents, employees, contractors, or
invitees in, on, over, through, from or about the Sublease Premises. The
foregoing obligations shall survive the expiration or earlier termination of
this Sublease.
Article 7.4.3.2 Sublessor shall defend, protect, hold harmless and
indemnify Sublessee and its agents, employees, contractors, stockholders,
officers, directors, successors and assigns with respect to all judgments,
claims, damages, actions, losses, penalties, fines, liabilities and other
expenses (including, but not limited to, reasonable attorneys', consultants',
and expert witnesses' fees) which result from or arise out of the storage, use,
generation, discharge, treatment, transportation, release or disposal of
Hazardous Material by Sublessor or its agents, employees, contractors, or
invitees in, on, over, through, from or about the Sublease Premises prior to
the Early Occupancy Date. The foregoing obligations shall survive the
expiration or earlier termination of this Sublease.
ARTICLE 8: SURRENDER. Upon the expiration or earlier termination of this
Sublease, Sublessee shall surrender the Sublease Premises in good condition and
repair, excepting only ordinary wear and tear and damage by fire, earthquake,
act of God or the elements. Sublessee agrees to repair any damage to the
Sublease Premises, or the building of which the Sublease Premises are a part,
caused by or related to the removal of Sublessee's personal property, fixtures,
furniture, equipment or signage, or any improvements, alterations or additions
installed by Sublessee which Master Lessor requires Sublessee to remove upon
expiration or earlier termination of this Sublease or which Sublessor requires
Sublessee to remove upon early termination of the Sublease, including, without
limitation, repairing the floor, patching and/or painting the walls and
restoring all or any part or parts of the Sublease Premises to the condition and
configuration existing as of the Early Occupancy Date, all to the reasonable
satisfaction of Sublessor and/or Master Lessor and at Sublessee's sole cost and
expense. If Sublessee elects to terminate the Sublease in accordance with
Section 19.9.1 below, Sublessor shall notify Sublessee, at least thirty (30)
days prior to the Early Termination Date, of any improvements, alterations or
additions installed by Sublessee which Sublessor requires Sublessee to remove
and the portions of the Sublease Premises to be restored to the condition and
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configuration existing as of the Early Occupancy Date. Sublessee shall
indemnify Sublessor against any loss or liability resulting from delay by
Sublessee in so surrendering the Sublease Premises, including, without
limitation, any claims made by the Master Lessor and/or any succeeding tenant
or subtenant founded on such delay. Such indemnity obligation shall survive the
expiration or earlier termination of this Sublease.
ARTICLE 9: CONSENT. Whenever the consent or approval of Master Lessor is
required pursuant to the terms of the Master Lease, for the purposes of this
Sublease, Sublessee, in each instance, shall be required to obtain the written
consent or approval of both Master Lessor and Sublessor. If Master Lessor
refuses to grant its consent or approval, Sublessor may withhold its consent or
approval and Sublessee agrees that such action by Sublessor shall be deemed
reasonable.
ARTICLE 10: INSURANCE. All insurance policies required to be carried by
Sublessor under the Master Lease shall be maintained by Sublessee pursuant to
the terms of the Master Lease, and shall name Sublessor and Master Lessor (and
such other lenders, persons, firms, or corporations as are designated by
Sublessor or Master Lessor) as additional insureds by endorsement. All policies
shall be written as primary policies with respect to the interests of Master
Lessor and Sublessor and such other additional insureds and shall provide that
any insurance carried by Master Lessor or Sublessor or such other additional
insureds is excess and not contributing insurance with respect to the insurance
required hereunder. All policies shall also contain "cross liability" or
"severability of interest" provisions and shall insure the performance of the
indemnity set forth in Article 14 of this Sublease. Sublessee shall provide
Master Lessor and Sublessor with copies or certificates of all policies,
including in each instance an endorsement providing that such insurance shall
not be canceled or amended except after thirty (30) days prior written notice
to Master Lessor and Sublessor. All deductibles, if any, under and such
insurance policies shall be subject to the prior reasonable approval of
Sublessor, and all certificates delivered to Master Lessor and Sublessor shall
specify the limits of the policy and all deductibles thereunder.
ARTICLE 11: NOTICES.
Article 11.1 NOTICE REQUIREMENTS. All notices, demands, consents, and
approvals which may or are required to be given by either party to the other
under this Sublease shall be in writing and may be given or made by overnight
courier such as Federal Express or by United States registered or certified
mail addressed as shown in Article 1. Any notice or demand so given shall be
deemed to be delivered or made on the date personal service is effected or, on
the next business day if sent by overnight courier, or the same day as given if
sent by facsimile transmission and received by 5:00 p.m. Pacific time or on the
second business day after the same is deposited in the United States Mail as
registered or certified and addressed as above provided with postage thereon
fully prepaid. Either party hereto may change its address at any time by giving
written notice of such change to the other party in the manner provided herein
at least ten (10) business days prior to the date such change is desired to be
effective.
Article 11.2 NOTICES FROM MASTER LESSOR. Each party shall provide to the
other party a copy of any notice or demand received from or delivered to Master
Lessor within one business day of receiving or delivering such notice or demand.
ARTICLE 12: DAMAGE, DESTRUCTION, CONDEMNATION. To the extent that the Master
Lease gives Sublessor any rights following the occurrence of any damage,
destruction or condemnation to terminate the Master Lease, to repair or restore
the Sublease Premises, to contribute toward such repair or
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restoration costs to avoid termination, to obtain and utilize insurance or
condemnation proceeds to repair or restore the Sublease Premises, or any
similar rights, such rights shall be reserved to and exercisable solely by
Sublessor, in its sole and absolute discretion, and not by Sublessee. The
exercise of any such right by Sublessor shall under no circumstances constitute
a default or breach under this Sublease or subject Sublessor to any liability
therefor.
ARTICLE 13: INSPECTION OF THE SUBLEASE PREMISES. Sublessee shall permit
Sublessor and its agents to enter the Sublease Premises at any reasonable time
for the purpose of inspecting the same or posting a notice of
non-responsibility for alterations, additions or repairs, provided that
Sublessor provides at least twenty-four (24) hours prior notice (except in the
case of emergency).
ARTICLE 14: INDEMNITY; EXEMPTION OF SUBLESSOR FROM LIABILITY.
Article 14.1 SUBLESSEE INDEMNITY. Sublessee shall indemnify, defend
(with counsel reasonably satisfactory to Sublessor), protect and hold Sublessor
harmless from and against any and all claims, demands, actions, suits,
proceedings, liabilities, obligations, losses, damages, judgments, costs,
expenses (including, but not limited to, reasonable attorneys', consultants'
and expert witness fees) arising out of or related (i) Sublessee's use of the
Sublease Premises, the conduct of Sublessee's business therein, or any
activity, work or thing done, permitted or suffered by Sublessee in or about
the Sublease Premises, (ii) a breach by Sublessee in the performance in a
timely manner of any obligation of Sublessee to be performed under this
Sublease, (iii) a failure by Sublessee to comply with any term, covenant,
condition or restriction under the Master Lease, or (iv) the negligence or
intentional acts of Sublessee or Sublessee's agents, contractors, employees,
subtenants, licensees, or invitees. The foregoing obligations shall survive the
expiration or earlier termination of this Sublease.
Article 14.2 SUBLESSOR INDEMNITY. Sublessor shall indemnify, defend (with
counsel reasonably satisfactory to Sublessee), protect and hold Sublessor
harmless from and against any and all claims, demands, actions, suits,
proceedings, liabilities, obligations, losses, damages, judgments, costs,
expenses (including, but not limited to, reasonable attorneys', consultants'
and expert witness fees) arising out of or related to a failure by Sublessor to
comply with any term, covenant, condition or restriction under the Master Lease
which is not otherwise required to be performed in whole or in part by
Sublessee under this Sublease. The foregoing obligations shall survive the
expiration or earlier termination of this Sublease.
Article 14.3 SUBLESSEE WAIVER. Sublessee, as a material part of the
consideration to Sublessor, hereby waives all claims against Sublessor for
damage to property or injury to persons in, upon or about the Sublease Premises
arising from any cause, except in connection with damage or injury caused
solely by the gross negligence or willful misconduct of Sublessor. This waiver
shall survive the expiration or earlier termination of this Sublease.
Article 14.4 MUTUAL WAIVER OF SUBROGATION. The parties hereby waive any
rights of recovery each may have against the other in connection with any loss
or damage occasioned to either party's respective property, the Sublease
Premises, or its contents, arising from any risk generally covered by fire and
extended coverage insurance, irrespective of the cause of such fire or
casualty. In addition, the parties each, on behalf of their respective
insurance companies, waive any right of subrogation that such insurance company
may have against the other party for any such loss or damage, provided that
such waiver does not invalidate any such policy. In the event that such waiver
would invalidate such policy, the insured party shall promptly notify the other
in writing.
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ARTICLE 15: ASSIGNMENT AND SUBLETTING. Sublessee shall not voluntarily or by
operation of law assign this Sublease or enter into license or concession
agreement, sublet all or any part of the Sublease Premises, or otherwise
transfer, mortgage, pledge, hypothecate or encumber all or any part of
Sublessee's interest in this Sublease or in the Sublease Premises or any part
thereof, without the prior written consent of Master Lessor (pursuant to the
terms of the Master Lease) and Sublessor, which consent shall not be
unreasonably withheld or delayed by Sublessor. Sublessee shall have no right to
sublease less than the entire area of the Sublease Premises, and Sublessee
agrees that it shall be reasonable for Sublessor or Master Lessor to withhold
its consent to any sublease of a portion of the Sublease Premises. Any attempt
to do so without such consent being first had and obtained shall be wholly void
and shall constitute a default by Sublessee under this Sublease. Sublessee
hereby irrevocably assigns to Sublessor all rent and other sums or consideration
in any form, from any such subletting or assignment, and agrees that Sublessor,
as assignee and as attorney-in-fact for Sublessee, or a receiver for Sublessee
appointed upon Sublessor's application, may collect such rent and other sums and
apply the same against amounts owing to Sublessor in the event of Sublessee's
default; provided, however, that until the occurrence of any default by
Sublessee or Sublessee's assignee or subtenant, Sublessee shall have the right
to collect such sums, provided that two-thirds (2/3) of all rent and other
charges payable by any such assignee or subtenant in excess of the Rent payable
under this Sublease ("excess rent") shall belong to Sublessor and be paid to
Sublessor within thirty (30) days following Sublessee's receipt thereof;
provided, however, that Sublessee shall first be entitled to recover from such
excess rent the amount of all reasonable leasing commissions paid to third
parties not affiliated with Sublessee in connection with said assignment or
subletting.
ARTICLE 16: DELIVERY OF DOCUMENTS. Sublessee shall execute and deliver any
document or other instrument reasonably required by Master Lessor pursuant to
the Master Lease within five (5) days following receipt of a written request
from Master Lessor or Sublessor. Failure to comply with this provision shall
constitute a default by Sublessee under this Sublease.
ARTICLE 17: HOLDING OVER. Any holding over by Sublessee after the Termination
Date, without the prior written consent of Master Lessor and Sublessor, shall
not constitute a renewal or extension of this Sublease or give Sublessee any
rights in or to the Sublease Premises. Any holding over by Sublessee after the
Termination Date, with the prior written consent of Master Lessor and
Sublessor, shall be construed as a month-to-month tenancy on the same terms and
conditions as specified in this Sublease, except that the Minimum Monthly Rent
during such tenancy an amount equal to One Hundred Twenty-five percent (125%)
of the most recent Minimum Monthly Rent. Any holding over by Sublessee after
the Termination Date, without the prior written consent of both Master Lessor
and Sublessor, shall be construed as a tenancy at sufferance (terminable upon
notice by Sublessor) on the same terms and conditions as specified in this
Sublease, except that Sublessee shall pay to Sublessor as Minimum Monthly Rent
during such tenancy an amount equal to Two Hundred Percent (200%) of the most
recent Minimum Monthly Rent.
ARTICLE 18: OPTIONS. Any right of Sublessor to extend or renew the term of the
Master Lease or to expand the Premises (if any) shall be reserved to and
exercisable solely by Sublessor, in its sole discretion, and not by Sublessee.
ARTICLE 19: GENERAL PROVISIONS.
Article 19.1 SEVERABILITY. If any term or provision of this Sublease shall, to
any extent, be determined by a court of competent jurisdiction to be invalid or
unenforceable, the remainder of this
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Sublease shall not be affected thereby, and each term and provision of this
Sublease shall be valid and enforceable to the fullest extent permitted by law.
Article 19.2 ATTORNEYS' FEES; COSTS OF SUIT. If Sublessee or Sublessor shall
bring any action for any relief against the other, declaratory or otherwise,
arising out of this Sublease, including any suit by Sublessor for the recovery
of Rent or possession of the Sublease Premises, the prevailing party shall be
entitled to recover its reasonable attorneys' fees and costs of suit.
Article 19.3 WAIVER. No covenant, term or condition or the breach thereof
shall be deemed waived, except by written consent of the party against whom the
waiver is claimed, and any waiver of the breach of any covenant, term or
condition shall not be deemed to be a waiver of any other covenant, term or
condition. Acceptance by Sublessor of any performance by Sublessee after the
time the same shall have become due shall not constitute a waiver by Sublessor
of the breach or default of any covenant, term or condition unless otherwise
expressly agreed to by Sublessor in writing.
Article 19.4 BROKERAGE COMMISSIONS. The parties represent and warrant to each
other that they have dealt with no brokers, finders, agents or other person in
connection with the transaction contemplated hereby to whom a brokerage or
other commission or fee may be payable, except for the brokers named in Article
1. Each party shall indemnify, defend and hold the other harmless from any
claims arising from any breach by the indemnifying party of the representation
and warranty in this Article 19.4.
Article 19.5 BINDING EFFECT. Preparation of this Sublease by Sublessor or
Sublessor's agent and submission of the same to Sublessee shall not be deemed
an offer to lease. This Sublease shall become binding upon Sublessor and
Sublessee only when fully executed by Sublessor and Sublessee and approved in
writing by Master Lessor.
Article 19.6 ENTIRE AGREEMENT. This instrument, along with any exhibits and
addenda hereto, constitutes the entire agreement between Sublessor and
Sublessee relative to the Sublease Premises. This Sublease may be altered,
amended or revoked only by an instrument in writing signed by both Sublessor
and Sublessee. There are no oral agreements or representations between the
parties affecting this Sublease, and this Sublease supersedes and cancels any
and all previous negotiations, arrangements, brochures, agreements,
representations and understandings, if any, between the parties hereto.
Article 19.7 EXECUTION. This Sublease may be executed in one or more
counterparts, each of which shall be considered an original counterpart, and
all of which together shall constitute one and the same instrument. Each person
executing this Sublease represents that the execution of this Sublease has been
duly authorized by the party on whose behalf the person is executing this
Sublease.
Article 19.8 MASTER LESSOR CONSENT. Sublessor's obligations under this
Sublease are conditioned upon receipt by Sublessor of Master Lessor's written
consent to this Sublease (in form and substance satisfactory to Sublessor)
within fifteen (15) days following the Effective Date.
Article 19.9 ADDITIONAL PROVISIONS.
Article 19.9.1 Early Termination Right. At any time before November 30,
2001 ("Exercise Period"), Sublessee shall have a one time right to terminate
the Sublease Term effective as of August 31, 2002 ("Early Termination Date"),
provided that Sublessee is not in default under the Sublease on the date of
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exercise or the Early Termination Date. The foregoing right may be exercised by
Sublessee only by delivering written notice of termination to Sublessor during
the Exercise Period, in which event the Sublease Term shall be deemed to expire
on the Early Termination Date but the Sublease shall otherwise remain
unmodified and continue in full force and effect. Nothing herein shall be
deemed to release Sublessee from any liability or obligations of Sublessee
under the Sublease which by their terms survive the expiration or earlier
termination of the Sublease Term.
Article 19.9.2 Fair Market Rental. For purposes of determining the Minimum
Monthly Rent for the Sublease Premises for the Period commencing September 1,
2002 and ending August 31, 2005 ("FMR Period"), the parties shall meet, no
earlier than January 1, 2002 nor later than March 1, 2002, and endeavor to agree
upon the fair market rental of the Sublease Premises for the FMR Period,
including, without limitation, any annual rent escalations applicable during the
FMR Period. In determining the fair market rental for the Sublease Premises, the
parties shall consider comparable buildings of a similar quality and size with
similar improvements located in the counties of Santa Xxxxx and San Mateo,
California. If the parties cannot agree upon the fair market rental for the
Sublease Premises by March 31, 2002, the parties shall submit the matter to
binding appraisal in accordance with the following procedures: On or before
April 15, 2002, the parties shall either (a) jointly appoint an appraiser for
this purpose or (b) failing joint action, separately designate a disinterested
appraiser. The parties shall each pay one-half (1/2) of the fees and expenses of
the jointly appointed appraiser or, if the parties separately designate
disinterested appraisers, the parties shall pay the fees and expenses of the
appraiser so appointed by said party. No person shall be appointed or designated
an appraiser unless he or she is an M.A.I. appraiser with at least five (5)
years experience in appraising major commercial properties located in the
counties of Santa Xxxxx and San Mateo, California. If the two (2) appraisers
thus appointed cannot reach agreement on the question presented within thirty
(30) days after their appointment, then the appraisers thus appointed shall
appoint a third (3rd) disinterested appraiser having like qualifications. If,
within thirty (30) days after the third (3rd) appraiser has been chosen, a
majority of the appraisers cannot reach agreement on the question presented,
then the average of the two (2) closest appraisals shall determine the fair
market rental and shall be binding and conclusive upon the parties. Each party
shall pay one-half (1/2) of the fees and expenses of the third (3rd) appraiser.
If the two (2) appraisers appointed by the parties cannot agree on the
appointment of the third (3rd) appraiser, either or both of them shall give
notice of such failure to the parties, and if the parties fail to agree upon the
selection of such third (3rd) appraiser within ten (10) days after the
appraisers appointed by the parties give such notice, then either of the
parties, upon notice to the other party, may request such appointment to the
presiding judge of the Superior Court of Santa Xxxxx County, California.
If for any reason the parties have not determined the fair market rental
for the Sublease Premises for the FMR Period on or before August 21, 2002, then
Sublessee shall pay to Sublessor, as Minimum Monthly Rent for the month of
August, 2002 and each month thereafter until the fair market rental has been
determined, an amount equal to the Minimum Monthly Rent payable for the month
of August, 2002. Upon such determination, the agreed monthly rental shall be
retroactively applied from September 1, 2002. Sublessee shall, within ten (10)
days thereafter, make up any accumulated deficiency for all months of the
extension period plus interest on each deficiency rental payment calculated
from the respective dates thereof at a rate equal to the rate then available on
a one-year Certificate of Deposit, compounded annually at the bank in which
Sublessor maintains Sublessor's commercial checking account. If Sublessee has
paid more than the agreed monthly rental, then Sublessor shall credit Sublease
with such accumulated excess (plus interest calculated in the same manner as
set forth above for deficient payments) by deducting such excess from the
Minimum Monthly Rent next to become due.
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Article 19.9.3 Condition of the Premises. The following shall be added at
the end of Article 2.2 of the Sublease:
Notwithstanding the foregoing, Sublessor shall deliver the Sublease
Premises to Sublessee in broom clean condition, with all plumbing,
electrical, HVAC and elevator systems (collectively, "Building System") in
good working order and repair. Sublessee shall have a period of thirty
(30) days after the Early Occupancy Date to give Sublessor written notice
of any required repairs to the Building Systems. If Sublessee gives
Sublessor written notice during such thirty (30) day period, Sublessor and
Sublessee shall meet and confer to agree upon the extent of any repairs
necessary to render the Building Systems in good working order and
repair. Thereafter, Sublessor shall ascertain whether the repair of such
defect is an obligation of Sublessor or Master Sublessor under the Master
Lease. If the repair is the obligation of Sublessor, Sublessor shall, at
its expense, promptly make such repair in a commercially reasonable
manner; provided, however, that Sublessor shall have no obligation to
perform or otherwise remedy any defects or items of disrepair caused by
Sublessee or its agents, employees or contractors following the Early
Occupancy Date or any code compliance issues related to the Building
Systems. If the repair is the obligation of Master Sublessor, the
provisions of Article 2.2 of this Sublease shall apply. Failure by
Sublessee to give Sublessor written notice of defects in the Building
Systems during such thirty (30) day period shall constitute conclusive
evidence that the Building Systems are in good working order and repair.
In addition, Sublessor shall leave all existing communications wiring
within the Sublease Premises, rolled-up at the point of termination and
otherwise in its "as-is, where-is" condition.
Article 19.9.4 Early Occupancy. Sublessor will permit Sublessee to occupy
the Sublease Premises from February 1, 1999 ("Early Occupancy Date") through
the Commencement Date for purposes of designing and installing Sublessee's
tenant improvements, subject to the terms and conditions of Articles 4.3 and
7.3 above.
Article 19.9.5 Security Deposit. Notwithstanding Article 6 to the
contrary, Sublessee shall have the right to deposit with Sublessor the Security
Deposit in the form of a letter of credit pursuant to the same terms and
conditions as are set forth in Section 44 of the Master Lease.
Article 19.9.6 Assignment. Notwithstanding Article 15 of this Sublease to
the contrary, Sublessee shall have the right to assign or sublet the Sublease
Premises without Sublessor's consent pursuant to the same terms and conditions
as are set forth in Section 48 of the Master Lease.
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IN WITNESS WHEREOF, the parties hereto have entered into this Sublease as
of the Effective Date set forth hereinabove.
SUBLESSOR: SUBLESSEE:
SILICON GRAPHICS, INC., VERITAS SOFTWARE CORPORATION,
a Delaware corporation a Delaware corporation
By /s/ [Signature Illegible] By /s/ XXX X. XXXXX
---------------------------- --------------------------
XXX X. XXXXX
Its VP Facilities Its Vice President and
General Counsel
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[LOGO] Silicon Graphics 0000 X. Xxxxxxxxx Xxxx.
Computer Systems Xxxxxxxx Xxxx, XX 00000-0000
Telephone (000) 000-0000
FAX (000) 000-0000
January 7, 1999
VIA FACSIMILE
Veritas Software Corporation
Attn: Xxx Xxxxx
Re: 000 Xxxx Xxxxxx, Xxxxxxxx Xxxx XX
Dear Xxx:
Silicon Graphics, Inc. ("SGI"), as sublessor, intends to approve the tenant
improvements comprising the hardwall and cubicle offices as shown on certain
plans more particularly described as the preliminary schematic layout of 900
Alta for the first floor (dated 1/5/95) and second floor (dated 1/6/99) upon
SGI's receipt of the written consent of the Master Lessor to such improvements
in accordance with the terms of the Master Lease (which consent shall provide
that SGI has no obligation to restore the premises to its existing interior
configuration) and acceptable construction plans depicting such improvements as
described under the Sublease and Master Lease. Nothing herein will modify the
obligations of Veritas under Article 8 of the Sublease. Unless otherwise
defined herein, all capitalized terms will have the meanings set forth in the
Sublease.
SILICON GRAPHICS, INC.
By /s/ [Signature Illegible]
----------------------------------
---------
SGI LEGAL Its VP Facilities
--------- ---------------------------------
16
[LETTERHEAD]
[LOGO] Xxxxx/Xxxxxxxxx
February 2, 1999
XX. XX XXXXXX
SILICON GRAPHICS, INC.
0000 X. Xxxxxxxxx Xxxx.
Xxxxxxxx Xxxx, XX 00000
Re: CONSENT TO SUBLEASE TO VERITAS SOFTWARE CORPORATION, A DELAWARE
CORPORATION FOR A PERIOD OF SIX YEARS FIVE MONTHS FIFTEEN DAYS, COMMENCING
MARCH 1, 1999 AND TERMINATING AUGUST 15, 2005.
Gentlemen:
This letter is written with regard to your proposed sublease of all of the
92,400 square feet of space (as shown on Exhibit A attached hereto) (the
"Sublet Premises") leased by Tenant at 000 Xxxx Xxxxxx, Xxxxxxxx Xxxx,
Xxxxxxxxxx, under Lease Agreement dated March 16, 1995 ("Master Lease"), by and
between Xxxx Xxxxxxxxx Survivor's Trust (previously known as the "Arrillaga
Family Trust") and Xxxxxxx X. Xxxxx Separate Property Trust ("Master
Landlord"), and Silicon Graphics, Inc., a Delaware corporation ("Tenant"),
which Tenant is proposing to sublease to Veritas Software Corporation, a
Delaware corporation ("Subtenant") on the terms and conditions set forth in the
proposed Sublease dated December 31, 1998, submitted by Tenant to Master
Landlord on January 29, 1999 (the "Sublease").
Pursuant to Master Lease Paragraph 16 ("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.
Initial:
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3. If Subtenant subleases and/or occupies less than one hundred percent of
the building, 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 prorate 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 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 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 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 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
Initial:
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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.
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,
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 its officers, directors, employees and
agents, from any and all claims, demands, and/or causes of action
whatsoever (collectively, "Claims"),
Initial:
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19
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."
The term of this Sublease is therefore subject to early termination.
Subtenant's initials here below evidence (a) Subtenant's consideration of
and agreement to this early termination provision, (b) Subtenant's
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) Subtenant's agreement to the
general waiver and release of Claims above.
Initials: Initials:
--------- ---------
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
and 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 (after the passage of any applicable cure period), 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; provided, however, that
any rent so collected by Master Landlord shall be applied against the like
obligations of Tenant 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
Initial
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20
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 16 entitled "Assignment and
Subletting" of the Master Lease, Master Landlord hereby requires Tenant to
pay to Master Landlord, as Additional Rent, fifty percent (50%) of all
Rents and/or additional consideration received by Tenant from said
Sublease in excess of the Rent payable to Master Landlord in said Lease
during the Sublease Term (hereinafter referred to as "Excess Rent");
provided, however, that for sharing such Excess Rent, Tenant shall first
be entitled to recover from such Excess Rent the amount of all reasonable
leasing commissions paid to third parties not affiliated with Tenant in
order to obtain the sublease. 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. Paragraph 6 ("Second Option to Extend Lease for Five (5) Years") of
Amendment No. 1 dated December 8, 1995 of the Master Lease provides that
said Option to Extend Lease may not be assigned by Tenant; therefore,
through this document, Master Landlord, Tenant and Subtenant agree that
said Option Right is terminated and no longer in effect.
9. 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 16 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.
10. 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 February 16, 1999.
IN THE EVENT TENANT FAILS TO RETURN THE FULLY EXECUTED DOCUMENTS TO LANDLORD BY
FEBRUARY 16, 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
Initial:
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21
copy will be returned to you after execution by the Master Landlord.
Very truly yours,
XXXXX/XXXXXXXXX
By /s/ XXXX XXXXXXXXX
--------------------------
Xxxx Xxxxxxxxx
THE UNDERSIGNED Tenant and Subtenant do hereby jointly and severally agree to
the terms and conditions of this Consent to Sublease.
TENANT: SUBTENANT:
SILICON GRAPHICS, INC. VERITAS SOFTWARE CORPORATION
a Delaware corporation a Delaware corporation
By /s/ XXX XXXXXXX By /s/ XXX X. XXXXX
----------------------------- -----------------------------
Print Name XXX XXXXXXX Print Name XXX X. XXXXX
-------------------- --------------------
Title VP Facilities VICE PRESIDENT AND
------------------------- Title GENERAL COUNSEL
-------------------------
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EXHIBIT A
[FLOOR PLAN]
[ALTA-PLYMOUTH OFFICE COMPLEX]
EXHIBIT B TO LEASE AGREEMENT DATED MARCH 16, 1995 BY AND BETWEEN XXXX XXXXXXXXX
AND XXXXXXX X. XXXXX SEPARATE PROPERTY TRUSTS, AS LANDLORD, AND SILICON
GRAPHICS, INC., A DELAWARE CORPORATION, AS TENANT.
(Page 1 of 2)
23
EXHIBIT B TO "CONSENT TO SUBLEASE"
SUMMARY OF AMOUNTS/CONSIDERATION TO BE PAID BY SUBTENANT
PERIOD* BASIC RENT R.E. TAXES PROP. INS. UTILITIES LANDSCAPE MISCELLANEOUS
BY MONTH TOTAL PSF TOTAL PSF TOTAL PSF TOTAL PSF TOTAL PSF TOTAL PSF
======== == ============ == ============= == ================ == =============== == ================ == ================= ==
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SEE SCHEDULE ATTACHED PAID PER THE MASTER LEASE
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MISCELLANEOUS TOTAL CHARGE PER PERIOD
TOTAL PSF TOTAL PSF
================= == ======================
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IF ADDITIONAL SPACE IS NEEDED, PLEASE DUPLICATE AND ATTACH
*IF PAYMENTS ARE REQUIRED OTHER THAN MONTHLY, PLEASE INCLUDE THESE PAYMENTS AS
WELL.
**IF SUBLEASE RENT PAID INCLUDES MISCELLANEOUS EXPENSES, PLEASE IDENTIFY THE $
AMOUNT /PSF OF THE TOTAL RENT PAYMENT ALLOCATED TO BASIC RENT AND EACH
ADDITIONAL EXPENSE ITEM.
IS ANY ADDITIONAL CONSIDERATION (MONETARY AND/OR SERVICES) DUE UNDER THE
SUBLEASE? YES NO X
--- ---
IF "YES", IDENTIFY TYPE CONSIDERATION AND DOLLAR VALUE ASSIGNED TO SAID
CONSIDERATION:
Type: Value: $
--------------------- ----------
Type: Value: $
--------------------- ----------
Type: Value: $
--------------------- ----------
Type: Value: $
--------------------- ----------
Type: Value: $
--------------------- ----------
IF ADDITIONAL SPACE IS NEEDED, PLEASE DUPLICATE AND ATTACH
TENANT SUBTENANT
SILICON GRAPHICS, INC. VERITAS SOFTWARE CORPORATION
By: [SIGNATURE ILLEGIBLE] By: [SIGNATURE ILLEGIBLE]
----------------------- -------------------------
Printed: Printed:
------------------ --------------------
Title: Title:
-------------------- ---------------------
24
000 XXXX XXXXXX, XXXXXXXX VIEW
SCHEDULE OF BONUS RENT
1/13/99
RENT SCHEDULE: Feb-99 Mar-99 Apr-99 May-99 Jun-99 Jul-99 Aug-99 Sep-99
-------------------------------------------------------------------------------------------------------------------------
Veritas Rent to SGI 0 231,000 231,000 231,000 231,000 231,000 231,000 000,000
XXX Rent to Xxxxx/Xxxxxxxxx 175,560 175,560 175,560 175,560 175,560 175,560 175,560 180,180
---------------------------------------------------------------------------------------------
Excess Over P/A Base Rent -175,560 55,440 55,440 55,440 55,440 55,440 55,440 50,820
Total Rent REceived from
Veritas 9,586,500
total Rent Paid Per
SGI Lease 7,787,010
---------
BONUS RENT 1,799,490
Less Commission @
$5.50 per foot 508,200
---------
Bonus Net of Commission 1,291,290
50% to Xxxxx Xxxxxxxxx 645,645
50% to SGI 645,645
CASH FLOW: Feb-99 Mar-99 Apr-99 May-99 Jun-99 Jul-99 Aug-99 Sep-99
-------------------------------------------------------------------------------------------------------------------------
Veritas Rent to SGI 0 231,000 231,000 231,000 231,000 231,000 231,000 000,000
XXX Rent to Xxxxx/Xxxxxxxxx -175,560 -175,560 -175,560 -175,560 -175,560 -175,560 -175,560 -180,180
---------------------------------------------------------------------------------------------
Excess Over P/A Base Rent -175,560 55,440 55,440 55,440 55,440 55,440 55,440 50,820
Commission -508,200
---------
Cash Flow After
Commission -683,760
Recovery to SGI of
Negative Cash Flow 55,440 55,440 55,440 55,440 55,440 55,440 50,820
Bonus Rent 0 0 0 0 0 0 0
50% to Xxxxx/Arrillaga 0 0 0 0 0 0 0
50% to SGI 0 0 0 0 0 0 0
NOTE: Veritas has early access to commence improvements, but will not commence
rent payments until 3/1/99.
NOTE: If early termination right is not exercised, additional bonus rent
schedule will be calculated from 9/1/02 through August 31, 2005.
25
Oct-99 Nov-99 Dec-99 Jan-99 Feb-00 Mar-00 Apr-00 May-00 Jun-00 Jul-00 Aug-00 Sep-00
-----------------------------------------------------------------------------------------------------------------------------------
231,000 231,000 231,000 231,000 231,000 231,000 231,000 231,000 231,000 231,000 231,000 231,000
180,180 180,180 180,180 180,180 180,180 180,180 180,180 180,180 180,180 180,180 180,180 184,800
-----------------------------------------------------------------------------------------------------------------------------------
50,820 50,820 50,820 50,820 50,820 50,820 50,820 50,820 50,820 50,820 50,820 46,200
Oct-99 Nov-99 Dec-99 Jan-00 Feb-00 Mar-00 Apr-00 May-00 Jun-00 Jul-00 Aug-00 Sep-00
-----------------------------------------------------------------------------------------------------------------------------------
231,000 231,000 231,000 231,000 231,000 231,000 231,000 231,000 231,000 231,000 231,000 231,000
-180,180 -180,180 -180,180 -180,180 -180,180 -180,180 -180,180 -180,180 -180,180 -180,180 -180,180 -184,800
-----------------------------------------------------------------------------------------------------------------------------------
50,820 50,820 50,820 50,820 50,820 50,820 50,820 50,820 50,820 50,820 50,820 46,200
50,820 50,820 50,820 50,820 50,820 46,200 0 0 0 0 0 0
0 0 0 0 0 4,620 50,820 50,820 50,820 50,820 50,820 46,200
0 0 0 0 0 2,310 25,410 25,410 25,410 25,410 25,410 23,100
0 0 0 0 0 2,310 25,410 25,410 25,410 25,410 25,410 23,100
26
Oct-00 Nov-00 Dec-00 Jan-01 Feb-01 Mar-01 Apr-01 May-01 Jun-01 Jul-01 Aug-01 Sep-01
-----------------------------------------------------------------------------------------------------------------------------------
231,000 231,000 231,000 231,000 231,000 231,000 231,000 231,000 231,000 231,000 231,000 231,000
184,800 184,800 184,800 184,800 184,800 184,800 184,800 184,800 184,800 184,800 184,800 189,420
-----------------------------------------------------------------------------------------------------------------------------------
46,200 46,200 46,200 46,200 46,200 46,200 46,200 46,200 46,200 46,200 46,200 41,580
Oct-00 Nov-00 Dec-00 Jan-01 Feb-01 Mar-01 Apr-01 May-01 Jun-01 Jul-01 Aug-01 Sep-01
-----------------------------------------------------------------------------------------------------------------------------------
231,000 231,000 231,000 231,000 231,000 231,000 231,000 231,000 231,000 231,000 231,000 231,000
-184,800 -184,800 -184,800 -184,800 -184,800 -184,800 -184,800 -184,800 -184,800 -184,800 -184,800 -189,420
-----------------------------------------------------------------------------------------------------------------------------------
46,200 46,200 46,200 46,200 46,200 46,200 46,200 46,200 46,200 46,200 46,200 41,580
0 0 0 0 0 0 0 0 0 0 0 0
46,200 46,200 46,200 46,200 46,200 46,200 46,200 46,200 46,200 46,200 46,200 41,580
23,100 23,100 23,100 23,100 23,100 23,100 23,100 23,100 23,100 23,100 23,100 20,790
23,100 23,100 23,100 23,100 23,100 23,100 23,100 23,100 23,100 23,100 23,100 20,790
27
Oct-01 Nov-01 Dec-01 Jan-02 Feb-02 Mar-02 Apr-02 May-02 Jun-02 Jul-02 15-Aug-02 TOTAL
-----------------------------------------------------------------------------------------------------------------
231,000 231,000 231,000 231,000 231,000 231,000 231,000 231,000 231,000 231,000 115,500 9,586,500
189,420 189,420 189,420 189,420 189,420 189,420 189,420 189,420 189,420 189,420 94,710 7,787,010
-----------------------------------------------------------------------------------------------------------------
41,580 41,580 41,580 41,580 41,580 41,580 41,580 41,580 41,580 41,580 20,790 1,799,490
Oct-01 Nov-01 Dec-01 Jan-02 Feb-02 Mar-02 Apr-02 May-02 Jun-02 Jul-02 Aug-02 TOTAL
----------------------------------------------------------------------------------------------------------------
231,000 231,000 231,000 231,000 231,000 231,000 231,000 231,000 231,000 231,000 115,500 9,586,500
-189,420 -189,420 -189,420 -189,420 -189,420 -189,420 -189,420 -189,420 -189,420 -189,420 -94,710 -7,787,010
----------------------------------------------------------------------------------------------------------------
41,580 41,580 41,580 41,580 41,580 41,580 41,580 41,580 41,580 41,580 20,790 1,799,490
0 0 0 0 0 0 0 0 0 0 0
41,580 41,580 41,580 41,580 41,580 41,580 41,580 41,580 41,580 41,580 20,790 1,799,490
20,790 20,790 20,790 20,790 20,790 20,790 20,790 20,790 20,790 20,790 10,395 645,645
20,790 20,790 20,790 20,790 20,790 20,790 20,790 20,790 20,790 20,790 10,395 645,645
