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EXHIBIT 10.7
SUBLEASE AGREEMENT
THIS SUBLEASE AGREEMENT ("Sublease") is made and effective as of May 30,
2000 ("Effective Date") by and between Anda Networks, a Delaware corporation
("Sublessee") and Boston Scientific Corporation, Xxx Xxxxxx Xxxxxxxxxx Xxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000 ("Sublessor").
WITNESSETH
WHEREAS, pursuant to a lease dated May 17, 1996, by and between
CarrAmerica Realty Corporation, a Maryland corporation and successor in interest
to Orchard Investment Company Number 609 ("Master Lessor"), and Sublessor as
Tenant, as amended by a First Amendment to Lease dated as of April 30, 1997 (as
so amended, the "Master Lease"), a copy of which is attached hereto and
incorporated herein as EXHIBIT A, the Master Lessor leased to Sublessor certain
premises located in the City of San Xxxx, County of Santa Xxxxx, State of
California, all as more particularly described in the Master Lease; and
WHEREAS, Sublessor desires to sublease the premises commonly known as
2708 and 0000 Xxxxxxx Xxxxxxx, as more particularly described in Section 1
below;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, the parties hereby agree as follows:
1. SUBLEASED PREMISES.
1.1 DESCRIPTION OF PREMISES. Sublessor hereby subleases to Sublessee and
Sublessee hereby subleases from Sublessor for the term, at the rental, and upon
all of the conditions set forth herein, that certain real property situated in
the County of Santa Xxxxx, State of California, commonly known as 2708 and 0000
Xxxxxxx Xxxxxxx, Xxx Xxxx and containing approximately 79,791 square feet of
rentable area ("Premises") as shown on EXHIBIT B attached hereto and
incorporated herein.
1.2 QUIET ENJOYMENT. Provided that Sublessee pays all annual rent and
additional rent and performs all of Sublessee's covenants and agreements
contained herein, Sublessee shall peacefully have, hold and enjoy the Premises,
subject to the terms and conditions of this Sublease and the Master Lease.
2. TERM.
2.1 CONDITION PRECEDENT. This Sublease and Sublessee's and Sublessor's
obligations hereunder are conditioned upon Sublessor's obtaining the written
consent of Master Lessor to this Sublease. If Sublessor fails to obtain the
Master Lessor's consent within 30 days after execution of this Sublease by
Sublessor, then Sublessee or Sublessor may terminate this Sublease by giving the
other party written notice, and Sublessor shall return to Sublessee all
consideration previously paid by Sublessee to Sublessor.
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2.2 TERM. The term of this Sublease shall commence on June 1, 2000 (the
"Commencement Date"). If the Commencement Date is the first day of the month,
this Sublease shall end on the date which is three (3) years from the
Commencement Date, unless sooner terminated pursuant to any provision hereof; if
the Commencement date is not the first day of the month, this Sublease shall end
on the date which is three (3) years from the first day of the month following
the Commencement Date ("Term"). The last day of the Term as extended or sooner
terminated shall be the termination date ("Termination Date").
2.3 OCCUPATION OF PREMISES; DELAY OR ADVANCE IN OCCUPATION OF PREMISES.
If for any reason Sublessor cannot deliver possession of the Premises to
Sublessee on the Commencement Date, Sublessor shall not be subject to any
liability therefor, nor shall such failure affect the validity of this Sublease
or the obligations of Sublessee hereunder or extend the Term hereof, but in such
case Sublessee shall not be obligated to pay rent until possession of the
Premises is tendered to Sublessee; provided, however, that if Sublessor shall
not have delivered possession of the Premises within 30 days from the
Commencement Date, Sublessee may, at Sublessee's option, by written notice to
Sublessor within ten days thereafter, cancel this Sublease, in which event the
parties shall be discharged from all obligations hereunder and Sublessor shall
return to Sublessee, within 15 days of such termination, any rent, security
deposit, or other monies paid to Sublessor by Sublessee pursuant to this
Sublease.
As of June 1, 2000 Sublessee may occupy that portion of the Premises
consisting of 0000 Xxxxxxx Xxxxxxx subject to the following conditions: (i) such
occupancy shall be subject to all provisions of this Sublease and (ii) such
occupancy shall not advance the Termination Date. Notwithstanding the foregoing,
Sublessee and its contractors and agents may enter the Premises prior to the
Commencement Date without any obligation to pay rent for the purpose of storing
and installing cabling, furniture and trade fixtures, provided any such entry
shall be at Sublessee's sole risk and shall be at such times and in such manner
as not to interfere with Sublessor's prosecution of the work required to be
performed by it under Section 11 hereof.
As of June 1, 2000, Sublessee shall have a temporary license to utilize
the premises located at 0000 Xxxxxxx Xxxxxxx (the "Staging Area") for a period
of thirty (30) days as a staging area in preparation for Sublessee's occupation
of the Premises, subject to the following conditions: (i) Sublessee's use of the
Staging Area shall be as Sublessee's sole risk, (ii) Sublessee's use of the
Staging Area shall be subject to all the terms and conditions of this Sublease,
except that Sublessee shall not be required to pay rent or additional rent,
(iii) Sublessor shall not be liable for any events occurring on or about the
Staging Area unless such events are the result of Sublessor's negligence or
willful misconduct, (iv) Sublessee shall indemnify and save harmless Sublessor
and Sublessor's agents, affiliates and contractors and the employees of all of
the foregoing from and against all claims of whatever nature arising from any
act, omission or negligence of Sublessee or Sublessee's contractors, licensees,
invitees, agents, servants or employees or arising from any accident, injury or
damage whatsoever caused to any person, or to the property of any person,
occurring on account of or based upon the act, omission, fault, negligence or
misconduct of Sublessee or Sublessee's contractors, licensees, invitees, agents,
servants or employees on or about the Staging Area, and (v) Sublessee shall
leave the Staging Area in good clean condition on or before July 1, 2000.
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2.4 SURRENDER. On the Termination Date, Sublessee shall surrender the
Premises, including the plumbing, HVAC system, electrical, lighting and other
operational systems in broom clean, good working condition, reasonable wear and
tear and damage by casualty excepted, and shall comply with all of the
provisions regarding surrender set forth in Section 15.2 of the Master Lease.
The foregoing notwithstanding, upon the surrender of the Premises, Sublessee
shall not be required to remove any additions, alterations or improvements made
to the Premises prior to the Commencement Date by Sublessor or any predecessor
in interest of Sublessor or at any time if not installed by Sublessee. With
respect to any improvements made during the term of this Sublease, unless
Sublessee requests at the time it seeks the approval of Master Lessor and
Sublessor a determination as to whether or not such improvements must be removed
at the end of the Term (or earlier termination of this Sublease) and Sublessor
and Master Lessor agree that such improvements need not be removed, Sublessor
and Master Lessor may require the removal of such improvements on termination of
this Sublease.
3. RENTS AND INSURANCE.
3.1 BASE RENT. Sublessee shall pay to Sublessor as base rent for the
Premises monthly payments in advance on the 15th day of each month of the Term
of this Sublease, except for the first full month's rent and rent for any
partial month after the Commencement Date until the first day of the following
month, which shall be due and payable upon delivery to Sublessee of this fully
executed Sublease. Base rent shall be calculated at the following rates:
Month Base Rent Rate Per Month
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1-12 $199,477.50 ($2.50/square foot/NNN)
13 - 24 $203,465.05 ($2.55/square foot/NNN)
25 - 36 $207,456.60 ($2.60/square foot/NNN)
Base rent for any period during the Term or any extension thereof which is for
less than one month shall be a pro rata portion of the monthly installment. Base
rent shall be paid by Sublessee without offset, deduction, notice or demand.
Sublessee shall be subject to the provisions of Article 3.4 of the Master Lease
with respect to any late payments of base rent set forth in this Section 3.1.
Sublessee shall not be subject to any adjustments in the base rent (including
any due to an increase in the Consumer Price Index) under this Sublease except
as set forth in this Section 3.1.
3.2 TRIPLE NET LEASE. The purpose and intent of this Sublease is that
the rent provided for in this Section 3 shall be absolutely net to the Sublessor
except as explicitly provided to the contrary herein. Except as explicitly set
forth in Section 11 of this Sublease, as between Sublessor and Sublessee,
Sublessor shall not have any obligation to construct, maintain, alter or repair
the Premises or any facilities or improvements thereon or appurtenant thereto or
be obligated to provide Sublessee with any service or facility.
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Subject to the previous paragraph, Sublessee shall pay to Sublessor as
additional rent 100% of all Common Operating Expenses (as defined in the Master
Lease) attributable to the Premises which Sublessor may be obligated to pay
pursuant to Article 8 of the Master Lease or otherwise. The amounts due
hereunder shall be payable to Sublessor, in lawful money of the United States,
in the following manner. Based on the amount of projected Common Operating
Expenses passed through to the Sublessor by the Master Lessor, Sublessor shall
inform Sublessee on an annual basis what the projected Common Operating Expenses
will be, and Sublessee shall pay one-twelfth of such amount each month along
with the Base Rent. Such projected Common Operating Expenses, and the
corresponding amount to be added to the monthly Base Rent, shall be subject to
adjustment up or down throughout the year on a dollar for-dollar basis in
accordance with adjustments made by the Master Lessor. Sublessee shall be
subject to the provisions of Article 3.4 of the Master Lease with respect to any
late payments of additional rent set forth in this Section 3.2.
3.3 ADDRESS FOR PAYMENT. All base and additional rent shall be payable
in lawful money of the United States to Sublessor at Boston Scientific
Corporation, 0000 Xxxxxxx Xxxxxxx, Xxx Xxxx, Xxxxxxxxxx 00000, Attention: Xx.
Xxxxxx Xxxxxx, Controller, or at such other places as Sublessor may designate to
Sublessee in writing.
3.4 SUBLESSEE DIRECT EXPENSES AND INSURANCE. Sublessee shall pay
directly to the applicable utility and/or public service company, 100% of the
cost of all utilities (gas, electricity) and routine services (e.g., garbage
removal) supplied to the Premises, in accordance with Article 7.3 of the Master
Lease. At all times during the Term of this Sublease, Sublessee shall procure
and maintain in full force and effect with respect to the Premises, at
Sublessee's sole cost and expense, the insurance referenced in Article 9 of the
Master Lease. All such insurance coverages shall name the Master Lessor, as well
as Sublessor, as additional insured parties and, if requested, any "Lender" as
that term is defined in the Master Lease.
4. SECURITY DEPOSIT. Sublessee shall provide Sublessor with an irrevocable
standby Letter of Credit payable to Sublessor (in substantially the same form
and substance as Exhibit C hereto) in the amount of One Million Two Hundred
Forty Four Thousand Seven Hundred Forty and No/100 ($1,244,740.00), as a
security deposit for Sublessee's faithful performance of Sublessee's obligations
under this Sublease ("Security Deposit"). Sublessee shall deliver the Security
Deposit to the Sublessor on the earlier of the Commencement Date or the date on
which Sublessee exercises its right under Section 2.3 to occupy space prior to
the Commencement Date. If Sublessee fails to pay rent or other charges due
hereunder, or otherwise defaults with respect to any provision of this Sublease,
Sublessor may use, apply or retain all or any portion of the Security Deposit
for the payment of any rent or other charge in default or for the payment of any
other sum to which Sublessor may become obligated by reason of Sublessee's
default, or to compensate Sublessor for any loss or damage which Sublessor may
suffer thereby. If Sublessor so uses or applies all or any portion of the
Security Deposit, Sublessee shall within ten days after written demand therefore
deposit lawful money of the United States with Sublessor in an amount sufficient
to restore the Security Deposit to the full amount hereinabove stated and
Sublessee's failure to do so shall be a material breach of this Sublease. If
Sublessee performs all of Sublessee's obligations hereunder, the Security
Deposit, or so much thereof as has not
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theretofore been applied by Sublessor, shall be returned, without payment of
interest or other increment for its use to Sublessee (or at Sublessor's option,
to the last assignee, if any, of Sublessee's interest hereunder) within 30 days
after the expiration of the Term hereof. No trust relationship is created herein
between Sublessor and Sublessee with respect to said Security Deposit.
5. USE, COMPLIANCE WITH LAW AND CONDITION OF THE PREMISES.
5.1 USE. The Premises shall be used and occupied only for general office
headquarters for networking equipment applications and for no other purpose;
provided that such use does not include the use, storage or disposal of any
Hazardous Materials (as defined in the Master Lease) except for ordinary office
and household products in amounts customary for Sublessee's permitted use of the
Premises. Sublessee shall not use or permit the use of the Premises in any
manner that will tend to create waste or a nuisance or, if there shall be more
than one tenant of the building containing the Premises, which shall tend to
disturb such other tenants.
5.2 COMPLIANCE WITH LAW. Sublessee shall, at Sublessee's expense, comply
promptly with all applicable statutes, ordinances, rules, regulations, building
codes, restrictions of record, and requirements in effect during the Term or any
part of the Term hereof regulating the particular use by Sublessee of the
Premises. Notwithstanding the foregoing, alterations to the Premises required by
a governmental agency in order to remove or remediate asbestos or other
Hazardous Materials or to make the Premises comply with fire or safety
regulations, the Americans with Disabilities Act, or the building code shall be
Sublessor's sole responsibility, unless such alterations are due to actions
voluntarily undertaken by Sublessee, in which case such required alterations
shall be Sublessee's sole responsibility. Sublessee shall not be responsible for
the removal or remediation of any asbestos or hazardous materials found at the
Premises if such asbestos or hazardous material was not placed upon the Premises
by Sublessee. Additionally, Sublessee shall not be liable for the exacerbation
of any existing asbestos or hazardous material resulting from any improvements
or alterations made by Sublessee.
5.3 CONDITION OF PREMISES. The Premises will be delivered to Sublessee
"broom clean", in good order and condition as to those aspects of the Premises
that are to be maintained under the Master Lease by Sublessor and Sublessor
shall have removed all chemical storage tanks and all chemicals from the
Premises. Subject to the provisions of this Section 5.3 and Section 5.2,
Sublessee accepts the Premises "as is," as of the Effective Date, subject to all
applicable zoning, municipal, county and state laws, ordinances, and regulations
governing and regulating the use of the Premises, and accepts the Sublease
subject thereto and to all matters disclosed in this Sublease and the Master
Lease (including their respective schedules and exhibits). Except as set forth
herein, Sublessee acknowledges that neither Sublessor nor Sublessor's agents
have made any representation or warranty as to the suitability of the Premises
for the conduct of Sublessee's business.
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6. MASTER LEASE.
6.1 SUBORDINATION OF SUBLEASE TO AND INCORPORATION OF MASTER LEASE.
Sublessee acknowledges and agrees that Sublessor is not the fee owner of the
Premises, and that Sublessor has acquired its interest in the Premises solely
through the Master Lease. This Sublease is subordinate to the Master Lease. As
between Sublessor and Sublessee only, the terms, conditions and respective
obligations of Sublessor and Sublessee to each other under this Sublease shall
be subject to the terms and conditions of the Master Lease except for those
provisions of the Master Lease which are directly contradicted by this Sublease,
in which event the terms of this Sublease shall control over the Master Lease.
In no event shall Sublessor voluntarily terminate the Master Lease with respect
to the Premises during the term of this Sublease unless (i) such termination is
the result of Sublessor's rights pursuant to the Master Lease relating to
casualty or condemnation or (ii) Master Lessor agrees, in writing, to enter into
a direct lease with Sublessee under the same terms and conditions set forth
herein.
6.2 SUBLESSEE'S ASSUMPTION OF CERTAIN OBLIGATIONS. Except as otherwise
provided in this Sublease, during the Term of this Sublease and for all periods
subsequent for obligations which have arisen prior to the termination of this
Sublease, Sublessee hereby expressly assumes and agrees to perform and comply
with, for the benefit of Sublessor and Master Lessor, each and every obligation
of Sublessor under Section 3.2, Section 3.4, Article 4, Article 5, Article 6,
Article 7 (with the term "Effective Date" referring to the Effective Date of
this Sublease as such term is defined in Section 1.12 of the Master Lease),
Article 8, Article 9, Section 10.3, Section 12.5, Section 13.2, Article 14,
Section 15.2, Section 15.3, Section 15.4, Section 15.5, Section 15.6 and Section
15.9 of the Master Lease as to the Premises subleased under this Sublease.
Sublessee covenants that neither Sublessee nor its agents, employees,
contractors or invitees will commit any act or act of omission in violation of
the terms and provisions of the Master Lease so as to render the Sublessor in
default in any of the terms, covenants and conditions of the Master Lease. The
obligations that Sublessee has assumed under this Section 6.2 are hereinafter
referred to as the "Sublessee's Assumed Obligations." Sublessee shall indemnify,
defend, protect and hold harmless Sublessor from any and all damages,
liabilities, judgments, actions, claims, reasonable attorneys' fees,
consultants' fees, payments, costs and expenses arising out of Sublessee's
failure to comply with or perform Sublessee's Assumed Obligations.
6.3 RIGHTS RESERVED TO SUBLESSOR. Subject to the provisions of Section
6.2 above, Sublessee shall not have any of the Tenant's rights specified in the
provisions of Section 11.3(b) of the Master Lease. The Sublessee shall not have
any of the Tenant's rights under the Master Lease with respect to any tenant
improvement allowances, rights of first negotiation or renewals or extensions of
the term of the Master Lease.
7. ASSIGNMENT AND SUBLEASING.
7.1 ASSIGNMENT BY SUBLESSEE. Sublessee shall have the right to assign
Sublessee's interest in this Sublease or sublease the Premises in whole or in
part during the Term hereof, subject to obtaining the prior written consent of
Sublessor, which shall not be unreasonably withheld or delayed, and of Master
Lessor. The foregoing notwithstanding, if Sublessee requests
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Sublessor's consent to an assignment or sublet of all or a portion of the
Premises through the remainder of the Sublease term, Sublessor shall have the
right to recapture the portion of the Premises proposed to be assigned or
sublet, in which case this Sublease shall terminate as to such portion of the
Premises. Furthermore, Sublessee shall pay to Sublessor, after the reduction of
any costs incurred by Sublessee in subleasing the space, seventy-five percent
(75%) of the rent received as a result of an assignment or sublease which
exceeds the Base Rent payable hereunder for the same period on a per square foot
basis. The "reduction of any costs incurred by Sublessee in subleasing the
space" shall include all reasonable costs incurred by Sublessee in connection
with such sublease, including reasonable legal fees and brokerage commissions.
Any such assignment or further sublease of the Premises shall be subject to the
provisions of Section 14.1 of the Master Lease and shall not relieve Sublessee
of its duties and obligations under this Sublease.
7.2 ASSIGNMENT BY SUBLESSOR. This Sublease may be assigned by Sublessor
subject to the provisions of Section 14.1 of the Master Lease.
7.3 RIGHT OF FIRST OFFER OF SUBLESSEE. Provided no Event of Default then
exists, Sublessor shall, prior to offering the same to any party, first offer to
lease to Tenant the space designated at 0000 Xxxxxxx Xxxxxxx (the "OFFER SPACE")
in an "AS-IS" condition at the rental rate set forth in Section 3 hereof; such
offer shall be in writing and specify the lease terms for the Offer Space,
including the date on which the Offer Space shall be included in the Premises
(the "OFFER NOTICE"). Sublessee shall notify Sublessor in writing whether
Sublessor elects to lease the entire Offer Space on the terms set forth in the
Offer Notice, within ten days after Sublessor delivers to Sublessee the Offer
Notice. If Sublessee timely elects to lease the Offer Space, then Sublessor and
Sublessee shall execute an amendment to this Sublease, effective as of the date
the Offer Space is to be included in the Premises, on the terms set forth in the
Offer Notice and, to the extent not inconsistent with the Offer Notice terms,
the terms of this Sublease; however, Sublessee shall accept the Offer Space in
an "AS-IS" condition and Sublessor shall not provide to Sublessee any allowances
(e.g., moving allowance, construction allowance, and the like) or other tenant
inducements except as specifically provided in the Offer Notice. Notwithstanding
the foregoing, if prior to Sublessor's delivery to Sublessee of the Offer
Notice, Sublessor has received an offer to lease all or part of the Offer Space
from a third party (a "THIRD PARTY OFFER") and such Third Party Offer includes
space in excess of the Offer Space, Sublessee must exercise its rights
hereunder, if at all, as to all of the space contained in the Third Party Offer.
If Sublessee fails or is unable to timely exercise its right hereunder,
then such right shall lapse, time being of the essence with respect to the
exercise thereof, and Sublessor may lease all or a portion of the Offer Space to
third parties on such terms as Sublessor may elect. Sublessee may not exercise
its rights under this Section if an Event of Default exists or Sublessee is not
then occupying the entire Premises. In no event shall Sublessor be obligated to
pay a commission with respect to any space leased by Sublessee under this
Section, and Sublessee and Sublessor shall each indemnify the other against all
costs, expenses, attorneys' fees, and other liability for commissions or other
compensation claimed by any broker or agent claiming the same by, through, or
under the indemnifying party.
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Sublessee's rights under this Section shall terminate if (a) this
Sublease of Sublessee's right to possession of the Premises is terminated, (b)
Sublessee assigns any of its interest in this Sublease or sublets any portion of
the Premises or (c) Sublessor has not offered the Offer Space to Sublessee by
November 30, 2000.
8. DEFAULT.
8.1 DEFAULT BY SUBLESSEE. In the event that Sublessee shall default in
the payment of base rent and/or any additional rent when due, Sublessor shall
notify Sublessee in writing of such default, and Sublessee shall have three days
from the date of delivery of such notice to pay such base rent and/or additional
rent. If Sublessee cures the default within the three-day period, Sublessee
shall not be in default hereunder but the provisions of the Master Lease with
respect to late charges and interest shall apply to any such payment. In the
event that Sublessee shall default in the performance of any of Sublessee's
obligations or duties under this Sublease, Sublessor shall notify Sublessee in
writing of such default, and Sublessee shall have 20 days from the date of
delivery of such notice to cure such default, or, if such default is not capable
of being cured by Sublessee within 20 days thereafter (except that if such
default cannot be cured within said 20-day period, this period shall be extended
for an additional reasonable time, provided that Sublessee commences to cure
such default within such 20-day period and proceeds diligently thereafter to
effect such cure as quickly as possible), and if Sublessee fails to cure such
default, in addition to being a default under this Sublease, Sublessor shall be
entitled, at Sublessor's option, to cure such default for the account of
Sublessee.
8.2 DEFAULT BY MASTER LESSOR; TERMINATION OF MASTER LEASE. In the event
of any default by the Master Lessor of the Master Lease under the terms thereof,
Sublessee shall give the Sublessor and the Master Lessor written notice thereof.
In the event that the Master Lease shall be canceled or terminated for any
reason, the Term of this Sublease shall automatically terminate as of the date
of such cancellation or termination of the Master Lease, and the Sublessor shall
not be liable in any way or to any extent to the Sublessee for such termination
or cancellation or for any damages or losses incurred or claimed to be incurred
by Sublessee as a result thereof. In such case, Sublessor shall return to
Sublessee, within 15 days of such termination, any unearned base or additional
rent, security deposit, or other unearned monies paid to Sublessor by Sublessee
pursuant to this Sublease. Notwithstanding the foregoing, Sublessor covenants
and agrees that Sublessor will not do anything which would constitute a default
under the provisions of the Master Lease, whether or not expressly incorporated
by reference in this Sublease, or omit to do anything which Sublessor is
obligated to do under the terms of this Sublease which would constitute a
default under the Master Lease.
8.3 DEFAULT BY SUBLESSOR. In the event that Sublessor shall default in
the performance of any of Sublessor's obligations or duties under this Sublease,
Sublessee shall notify Sublessor in writing of such default, and Sublessor shall
have 30 days from the date of such notice to cure such default, or, if such
default is not capable of being cured by Sublessor within 30 days thereafter
(except that if such default cannot be cured within said 30-day period, this
period shall be extended for an additional reasonable time, provided that
Sublessor commences to cure such default within such 30-day period and proceeds
diligently thereafter to
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effect such cure as quickly as possible). Sublessor shall deliver to Sublessee
within five days after Sublessor's receipt copies of all notices of default that
Sublessor may receive pursuant to the Master Lease.
9. BROKER'S FEE. Upon execution hereof by all parties, Sublessor shall pay to
Xxxxx Xxxxxx Associates a licensed real estate broker (herein called "Broker"),
a fee as set forth in a separate agreement between Sublessor and Broker.
10. TENANT IMPROVEMENTS. Sublessee may, at Sublessee's sole cost and expense,
make improvements to the Premises; provided, however, that Sublessee will first
obtain Sublessor's prior written approval to such improvements which approval
shall not be unreasonably withheld, and, if Sublessor reasonably determines that
the Master Lessor's approval is also necessary or appropriate, Sublessee shall
also obtain Master Lessor's prior written approval. Sublessee shall not initiate
any such improvements until all approvals are obtained. The making of any such
improvements shall be subject to the provisions of Article 5 of the Master
Lease.
11. SIGNAGE AND PARKING.
11.1 SIGNAGE: Entryways. Subject to the provisions of Section 4.4 of the
Master Lease, Sublessee, at its sole cost and expense, may (i) display
Sublessee's name in six-inch white stick-on letters, placed at approximately
eye-level on the glass next to the double glass doors at each of the two main
entrances to the Premises, (ii) display the applicable building number
immediately above Sublessee's name on such glass in six-inch white stick-on
letters (i.e. 2708 and 0000 Xxxxxxx Xxxxxxx), and (iii) paint Sublessee's name
in a maximum of 4-inch letters on the signs in existence as of the Effective
Date that are located in the flowerbed near each of the two main entrances to
the Premises. The color scheme of the lettering and background colors on the
flowerbed signs must be pre-approved by Sublessor and Master Lessor, and shall
be subject to Master Lessor's signage standards for the project.
11.2 PARKING. The parking spaces allocated by the Master Lessor to the
office complex located at 2688, 2694-2698, 2702 and 0000 Xxxxxxx Xxxxxxx, Xxx
Xxxx, Xxxxxxxxxx shall be available to Sublessee and its visitors on a
non-exclusive basis.
12. GENERAL PROVISIONS.
12.1 NOTICES. All notices required or allowed to be given hereunder
shall be in writing and shall be deemed to have been given when actually
received at the address set forth below, it being understood that notices shall
generally be sent by hand delivery (including commercial courier service with
written verification of delivery retained), overnight courier service or
certified mail with return or confirmed receipt requested. The burden of proving
receipt shall be on the party sending the notice.
If to Sublessor: Boston Scientific Corporation
0000 Xxxxxxx Xxxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
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Attention: Xxxxx Xxxx
Director Mfg Process
Engineering/Facilities
with a copy to: Boston Scientific Corporation
Xxx Xxxxxx Xxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Attention: Executive Vice President
and General Counsel
If to Sublessee: Prior to the Commencement Date:
ANDA Networks
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After the Commencement Date:
ANDA Networks
2708 and 0000 Xxxxxxx Xxxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Attention: __________
If to Master Lessor: CarrAmerica Realty Corporation
0000 Xxxxxxx Xxxxx
Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
with a copy to: 0000 X Xxxxxx X.X.
Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Lease Administrator
Sublessor and Sublessee may at any time, by notice to the other given in
the manner provided above, change the address for notices to it. Any such change
of address shall be effective as to the other only upon its receipt of the
notice of such change.
12.2 MERGER, DISCLAIMER AND ENTIRE AGREEMENT. This Sublease, together
with its Exhibits A through C, contains the entire understanding between the
parties as to the subject matter hereof. All prior understandings and agreements
between the parties hereto are merged in this Sublease, which alone fully and
completely expresses the parties understandings under this Sublease. Sublessee
has not relied upon or been induced by any statements or representations, other
than those expressly set forth in this Sublease, of any person in respect of the
title to or the physical condition of the Premises, or any other matter
affecting the Premises or this transaction
10
11
which might be pertinent in considering the execution of this Sublease.
Sublessee expressly acknowledges that no such representation not embodied here
has been made.
12.3 WAIVER. No waiver, change, modification or discharge of any of the
provisions of this Sublease shall be valid unless effected by an agreement in
writing signed by both parties hereto. The waiver of any of the provisions of
this Sublease shall not be deemed to be a waiver of any subsequent breach or
default of the provisions hereof.
12.4 SEVERABILITY. The illegality or invalidity of any provision of this
Sublease, by reason of any rule of law or public policy, shall not affect this
Sublease or any other provision hereof, but this Sublease shall, nevertheless,
remain in full force and effect and shall be construed in all respects as if
such invalid provision were omitted.
12.5 CONSTRUCTION OF SUBLEASE. This Sublease and the performance thereof
shall be construed, regulated and governed by the laws of the State of
California without reference to its choice of law provisions. The Section
headings have been inserted for convenience only and shall not enter in the
interpretation or construction of this Sublease.
12.6 RELATIONSHIP BETWEEN PARTIES. Sublessor and Sublessee each
expressly disclaim any intent to form a partnership, association, or any other
entity, or to become joint venturers by virtue of the execution of this
Agreement.
12.7 BINDING AGREEMENT. This Sublease shall inure to the benefit of the
parties hereto and be binding upon the parties hereto as well as their
respective successors and permitted assigns.
12.8 NON-DEFAULT. Sublessor hereby acknowledges that, as of the date it
is executing this Sublease, neither Master Lessor nor Sublessor is, to the best
of Sublessor's knowledge, in violation or default of any term, covenant or
condition of the Master Lease.
12.9 ADDRESS. Sublessee shall have the use of the building addresses
0000 Xxxxxxx Xxxxxxx and "2712 Orchard Parkway" with respect to the Premises.
Sublessee shall not utilize the building address "2710 Orchard Parkway".
Sublessee agrees that, in the event Sublessee receives any mail addressed to
Sublessor, Sublessee shall promptly deliver the same to Sublessor.
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IN WITNESS WHEREOF, the authorized officers of the parties have executed
this Sublease as of the Effective Date.
SUBLESSOR:
Boston Scientific Corporation
By: /s/ Xxxxx X. Xxxxx Executed at
------------------------------------ ---------------------
Printed: on
--------------------------------- ------------------------------
Title: VP and Corporate Controller
----------------------------------
SUBLESSEE:
ANDA Networks
By: /s/Xxxxxxx X. Kenmore Executed at
------------------------------------ ---------------------
Printed: on
--------------------------------- ------------------------------
Title: President and CEO
----------------------------------
13
EXHIBIT A
Master Lease
14
EXHIBIT B
Premises Drawing
15
EXHIBIT C
Letter of Credit
16
[Silicon Valley Bank Letterhead]
IRREVOCABLE STANDBY LETTER OF CREDIT NO. SVB00IS2507
DATE: MAY 16, 2000
BENEFICIARY:
BOSTON SCIENTIFIC CORPORATION
XXX XXXXXX XXXXXXXXXX XXXXX
XXXXXX, XX 00000-0000
AS "LANDLORD"
APPLICANT:
ANDA NETWORKS
0000 XXXXXX XXXX
XXXXX XXXXX, XX 00000
AS "TENANT"
AMOUNT: US$1,244,740.00 (ONE MILLION TWO HUNDRED FORTY FOUR THOUSAND SEVEN
HUNDRED FORTY AND 00/100 U.S. DOLLARS)
EXPIRATION DATE: MAY 31, 2001
LOCATION: AT OUR COUNTERS IN SANTA CLARA, CALIFORNIA
DEAR SIR/MADAM:
WE HEREBY ESTABLISH OUR IRREVOCABLE STANDBY LETTER OF CREDIT NO. SVB00IS2507 IN
YOUR FAVOR AVAILABLE BY YOUR DRAFTS DRAWN ON US AT SIGHT AND ACCOMPANIED BY THE
FOLLOWING DOCUMENTS:
1. THE ORIGINAL OF THIS LETTER OF CREDIT AND ALL AMENDMENT(S), IF ANY.
2. A DATED CERTIFICATION SIGNED BY AN AUTHORIZED OFFICER OF THE BENEFICIARY,
FOLLOWED BY ITS DESIGNATED TITLE, STATING THE FOLLOWING:
(A) "AN EVENT OF DEFAULT (AS DEFINED IN THE LEASE) HAS OCCURRED BY ANDA NETWORKS
AS TENANT UNDER THAT CERTAIN LEASE AGREEMENT BETWEEN TENANT, AND
BENEFICIARY, AS LANDLORD. FURTHERMORE THIS IS TO CERTIFY THAT: (I) LANDLORD
HAS GIVEN WRITTEN NOTICE TO TENANT TO CURE THE DEFAULT PURSUANT TO THE TERMS
OF THE LEASE; (II) SUCH DEFAULT HAS NOT BEEN CURED UP THO THIS DATE OF
DRAWING UNDER THIS LETTER OF CREDIT; AND (III) LANDLORD IS AUTHORIZED TO
DRAW DOWN ON THE LETTER OF CREDIT, AND
(B) THIS IS TO CERTIFY THAT LANDLORD WILL HOLD THE FUNDS DRAWN UNDER THIS LETTER
OF CREDIT AS SECURITY DEPOSIT FOR TENANT OR APPLY SAID FUNDS TO TENANT'S
OBLIGATION UNDER THE LEASE."
17
[SILICON VALLEY BANK LOGO]
IRREVOCABLE STANDBY LETTER OF CREDIT NO. SVB00IS2507
DATED MAY 16, 2000
PARTIAL DRAWS ARE ALLOWED. THIS LETTER OF CREDIT MUST ACCOMPANY ANY DRAWINGS
HEREUNDER FOR ENDORSEMENT OF THE DRAWING AMOUNT AND WILL BE RETURNED TO THE
BENEFICIARY UNLESS IT IS FULLY UTILIZED.
THIS LETTER OF CREDIT SHALL BE AUTOMATICALLY EXTENDED FOR AN ADDITIONAL PERIOD
OF ONE YEAR, WITHOUT AMENDMENT, FROM THE PRESENT OR EACH FUTURE EXPIRATION DATE
UNLESS AT LEAST 30 DAYS PRIOR TO THE THEN CURRENT EXPIRATION DATE WE NOTIFY YOU
BY REGISTERED MAIL/OVERNIGHT COURIER SERVICE AT THE ABOVE ADDRESS THAT THIS
LETTER OF CREDIT WILL NOT BE EXTENDED BEYOND THE CURRENT EXPIRATION DATE. IN NO
EVENT SHALL THIS LETTER OF CREDIT BE AUTOMATICALLY EXTENDED BEYOND MAY 31, 2003.
THIS LETTER OF CREDIT MAY ONLY BE TRANSFERRED IN ITS ENTIRETY BY THE ISSUING
BANK UPON OUR RECEIPT OF THE ATTACHED "EXHIBIT A" DULY COMPLETED AND EXECUTED BY
THE BENEFICIARY AND ACCOMPANIED BY THE ORIGINAL LETTER OF CREDIT AND ALL
AMENDMENT(S), IF ANY, TOGETHER WITH THE PAYMENT OF OUR TRANSFER FEE OF 1/4 OF 1%
OF THE TRANSFER AMOUNT (MINIMUM USD250.00).
DRAFT(S) AND DOCUMENTS MUST INDICATE THE NUMBER AND DATE OF THIS LETTER OF
CREDIT.
DOCUMENTS MUST BE FORWARDED TO US BY OVERNIGHT DELIVERY SERVICE TO: SILICON
VALLEY BANK, 0000 XXXXXX XXXXX, XXXXX XXXXX XX 00000, ATTN: INTERNATIONAL
DIVISION.
WE HEREBY AGREE WITH THE DRAWERS, ENDORSERS AND BONAFIDE HOLDERS THAT THE DRAFTS
DRAWN UNDER AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS LETTER OF
CREDIT SHALL BE DULY HONORED UPON PRESENTATION TO THE DRAWEE, IF NEGOTIATED ON
OR BEFORE THE EXPIRATION DATE OF THIS CREDIT.
THIS LETTER OF CREDIT IS SUBJECT TO THE UNIFORM CUSTOMS AND PRACTICE FOR
DOCUMENTARY CREDITS (1993 REVISION), INTERNATIONAL CHAMBER OF COMMERCE,
PUBLICATION NO. 500.
/s/ [ILLEGIBLE] /s/ [ILLEGIBLE]
------------------------ --------------------------
AUTHORIZED SIGNATURE AUTHORIZED SIGNATURE
PAGE 2 OF 2
18
[SILICON VALLEY BANK INTERNATIONAL DIVISION LETTERHEAD]
EXHIBIT "A"
DATE:
TO: SILICON VALLEY BANK
0000 XXXXXX XXXXX RE: STANDBY LETTER OF CREDIT
XXXXX XXXXX, XX 00000 NO. ISSUED BY
ATTN: INTERNATIONAL DIVISION SILICON VALLEY BANK, SANTA XXXXX
STANDBY LETTERS OF CREDIT L/C AMOUNT:
GENTLEMEN:
FOR VALUE RECEIVED, THE UNDERSIGNED BENEFICIARY HEREBY IRREVOCABLY TRANSFERS TO:
(NAME OF TRANSFEREE)
(ADDRESS)
ALL RIGHTS OF THE UNDERSIGNED BENEFICIARY TO DRAW UNDER THE ABOVE LETTER OF
CREDIT UP TO ITS AVAILABLE AMOUNT AS SHOWN ABOVE AS OF THE DATE OF THIS
TRANSFER.
BY THIS TRANSFER, ALL RIGHTS OF THE UNDERSIGNED BENEFICIARY IN SUCH LETTER OF
CREDIT ARE TRANSFERRED TO THE TRANSFEREE. TRANSFEREE SHALL HAVE THE SOLE RIGHTS
AS BENEFICIARY THEREOF, INCLUDING SOLE RIGHTS RELATED TO ANY AMENDMENTS,
WHETHER INCREASES OR EXTENSIONS OR OTHER AMENDMENTS, AND WHETHER NOW EXISTING
OR HEREAFTER MADE. ALL AMENDMENTS ARE TO BE ADVISED DIRECT TO THE TRANSFEREE
WITHOUT NECESSITY OF ANY CONSENT OF OR NOTICE TO THE UNDERSIGNED BENEFICIARY.
THE ORIGINAL OF SUCH LETTER OF CREDIT IS RETURNED HEREWITH, AND WE ASK YOU TO
ENDORSE THE TRANSFER ON THE REVERSE THEREOF, AND FORWARD IT DIRECTLY TO THE
TRANSFEREE WITH YOUR CUSTOMARY NOTICE OF TRANSFER.
SINCERELY,
----------------------------------
(BENEFICIARY'S NAME)
----------------------------------
SIGNATURE OF BENEFICIARY
----------------------------------
SIGNATURE AUTHENTICATED
----------------------------------
(NAME OF BANK)
----------------------------------
AUTHORIZED SIGNATURE
[LETTERHEAD ADDRESS/PHONE INFO]
19
ANDA NETWORKS, INC. 0000
XXXXXX XXXXXXXXXX CORP 5/26/00
05/25/00 XXXX #052500 199,477.50
PAYMENT
RECORD
Checking 199,477.50
137958 (9400)
