Real Estate Matters Agreement
between
Hewlett-Packard Company
and
Agilent Technologies, Inc.
November 1, 1999
TABLE OF CONTENTS
Page
----
ARTICLE I PROPERTY IN THE UNITED STATES................................. 1
Section 1.1 Owned Property........................................... 1
Section 1.2 Leased Property.......................................... 1
Section 1.3 Sublease Properties...................................... 2
Section 1.4 New Lease Properties..................................... 2
Section 1.5 Obtaining the Lease Consents............................. 2
Section 1.6 Occupation by Agilent.................................... 3
Section 1.7 Obligation to Complete................................... 4
Section 1.8 Form of Transfer......................................... 5
Section 1.9 Casualty; Lease Termination.............................. 6
Section 1.10 Tenant's Fixtures and Fittings........................... 6
Section 1.11 Services................................................. 6
Section 1.12 Adjustments.............................................. 6
Section 1.13 Costs.................................................... 7
ARTICLE II PROPERTY OUTSIDE THE UNITED STATES........................... 7
ARTICLE III MISCELLANEOUS............................................... 8
Section 3.1 Entire Agreement......................................... 8
Section 3.2 Governing Law............................................ 8
Section 3.3 Notices.................................................. 8
Section 3.4 Parties in Interest...................................... 8
Section 3.5 Counterparts............................................. 8
Section 3.6 Binding Effect; Assignment............................... 8
Section 3.7 Severability............................................. 8
Section 3.8 Failure or Indulgence Not Waiver......................... 9
Section 3.9 Amendment................................................ 9
Section 3.10 Authority................................................ 9
Section 3.11 Interpretation........................................... 9
ARTICLE IV DEFINITIONS.................................................. 9
i
REAL ESTATE MATTERS AGREEMENT
This Real Estate Matters Agreement (this "Agreement") is entered into on
November 1, 1999 between Hewlett-Packard Company, a Delaware corporation ("HP"),
and Agilent Technologies, Inc., a Delaware corporation ("Agilent"). Capitalized
terms used herein and not otherwise defined herein shall have the meanings
ascribed to such terms in the Separation Agreement (as defined below).
RECITALS
WHEREAS, HP has transferred or will transfer to Agilent effective as of the
Separation Date, substantially all of the business and assets of the Agilent
Business owned by HP in accordance with the Master Separation and Distribution
Agreement dated as of August 12, 1999 between the parties (the "Separation
Agreement").
WHEREAS, the parties desire to set forth certain agreements regarding real
estate matters.
NOW, THEREFORE, in consideration of the foregoing and the covenants and
agreements set forth below, the parties hereto agree as follows:
ARTICLE 1
PROPERTY IN THE UNITED STATES
Section 1.1 Owned Property
(a) HP shall convey or cause its applicable Subsidiary to convey each of
the Owned Properties (together with all rights and easements appurtenant
thereto) to Agilent, subject to the other provisions of this Agreement and (to
the extent not inconsistent with the provisions of this Agreement) the terms of
the Separation Agreement and the other Ancillary Agreements. Such conveyance
shall be completed on the Separation Date.
(b) Subject to the completion of the conveyance to Agilent of the relevant
Owned Property, with respect to each Owned Property which is a Leaseback
Property, Agilent shall grant to HP a lease of that part of the relevant Owned
Property identified in the Colocation Sites Spreadsheet and HP shall accept the
same. Such lease shall be completed immediately following completion of the
transfer of the relevant Owned Property to Agilent.
Section 1.2 Leased Property
(a) HP shall assign or cause its applicable Subsidiary to assign, and
Agilent shall accept and assume, HP's or its Subsidiary's interest in the Leased
Properties, subject to the other provisions of this Agreement and (to the extent
not inconsistent with the provisions of this Agreement) the terms of the
Separation Agreement and the other Ancillary Agreements. Such assignment shall
be completed on the later of: (i) the Separation Date; and (ii) the earlier of
(A) the tenth (10/th/) business day after the relevant Lease Consent has been
granted and (B) the date agreed upon by the parties in accordance with Section
1.7(a) below.
(b) Subject to the completion of the assignment to Agilent of the relevant
Leased Property, with respect to each Leased Property which is also a Leaseback
Property, Agilent shall grant to HP a sublease of that part of the relevant
Leased Property identified in the Colocation Sites Spreadsheet and HP shall
accept the same. Such sublease shall be completed immediately following
completion of the transfer of the relevant Leased Property to Agilent.
Section 1.3 Sublease Properties
HP shall grant or cause its applicable Subsidiary to grant to Agilent a
sublease of that part of the relevant Sublease Property identified in the
Colocation Sites Spreadsheet and Agilent shall accept the same, subject to the
other provisions of this Agreement and (to the extent not inconsistent with the
provisions of this Agreement) the terms of the Separation Agreement and the
other Ancillary Agreements. Such sublease shall be completed on the later of:
(a) the Separation Date; and (b) the earlier of (i) the tenth (10/th/) business
day after the relevant Lease Consent has been granted and (ii) the date agreed
upon by the parties in accordance with Section 1.7(a) below.
Section 1.4 New Lease Properties
HP shall grant or cause its applicable Subsidiary to grant to Agilent a
lease of those parts of the New Lease Properties identified in the Colocation
Sites Spreadsheet and Agilent shall accept the same, subject to the other
provisions of this Agreement and (to the extent not inconsistent with the
provisions of this Agreement) the terms of the Separation Agreement and the
other Ancillary Agreements. Such lease shall be completed on the Separation
Date.
Section 1.5 Obtaining the Lease Consents
(a) Except with respect to any Properties which the parties agree should
be dealt with by the Service Level Agreements referred to in Section 1.11 below,
HP confirms that, with respect to each Leased Property, Sublease Property and
Leaseback Property which is a Leased Property, an application has been made or
will be made by the Separation Date to the relevant Landlord for the Lease
Consents required with respect to the transactions contemplated by this
Agreement.
(b) HP and Agilent will each use their reasonable commercial efforts to
obtain the Lease Consents, but HP shall not be required to commence judicial
proceedings for a declaration that a Lease Consent has been unreasonably
withheld or delayed, nor shall HP be required to pay any consideration in excess
of that required by the Relevant Lease or that which is typical in the open
market to obtain the relevant Lease Consent.
(c) Agilent and HP will promptly satisfy the lawful requirements of the
Landlord, and Agilent will take all steps to assist HP in obtaining the Lease
Consents, including, without limitation:
(i) if properly required by the Landlord, entering into an agreement
with the relevant Landlord to observe and perform the tenant's obligations
contained in the Relevant Lease throughout the remainder of the term of the
Relevant Lease, subject to any statutory limitations of such liability;
(ii) if properly required by the Landlord, providing a guarantee,
surety or other security (including, without limitation, a security deposit) for
the obligations of Agilent as tenant under
2
the Relevant Lease, and otherwise taking all steps which are necessary and which
Agilent is capable of doing to meet the lawful requirements of the Landlord so
as to ensure that the Lease Consents are obtained; and
(iii) using all reasonable commercial efforts to assist HP with
obtaining the Landlord's consent to the release of any guarantee, surety or
other security which HP or its Subsidiary may have previously provided to the
Landlord and, if required, offering the same or equivalent security to the
Landlord in order to obtain such release.
Notwithstanding the foregoing, (1) except with respect to guarantees, sureties
or other security referenced in Section 1.5(c)(ii) above, Agilent shall not be
required to obtain a release of any obligation entered into by HP or its
Subsidiary with any Landlord or other third party with respect to any Property
and (2) Agilent shall not communicate directly with any of the Landlords unless
Agilent can show HP reasonable grounds for doing so.
(d) If, with respect to any Leased Properties, HP and Agilent are unable
to obtain a release by the Landlord of any guarantee, surety or other security
which HP or its Subsidiary has previously provided to the Landlord, Agilent
shall indemnify, defend, protect and hold harmless HP and its Subsidiary from
and after the Separation Date against all losses, costs, claims, damages, or
liabilities incurred by HP or its Subsidiary as a result of such guarantee,
surety or other security.
Section 1.6 Occupation by Agilent
(a) Subject to compliance with Section 1.6(b) below, in the event that the
Actual Completion Date for any Leased Property or Sublease Property does not
occur on the Separation Date, Agilent shall, commencing on the Separation Date,
be entitled to occupy and receive the rental income from the relevant Property
(except to the extent that the same is a Retained Part) as a licensee upon the
terms and conditions contained in HP's Lease (as to Leased Properties) or upon
the terms and conditions contained in the Sublease Form (as to Sublease
Properties). Such license shall not be revocable prior to the date for
completion as provided in Sections 1.2(a) and 1.3 unless an enforcement action
or forfeiture by the relevant Landlord due to Agilent's occupation of the
Property constituting a breach of HP's Lease cannot, in the reasonable opinion
of HP, be avoided other than by requiring Agilent to immediately vacate the
relevant Property, in which case HP may by notice to Agilent immediately require
Agilent to vacate the relevant Property. Agilent will be responsible for all
costs, expenses and liabilities incurred by HP or its applicable Subsidiary as a
consequence of such occupation, except for any losses, claims, costs, demands
and liabilities incurred by HP or its Subsidiary as a result of any enforcement
action taken by the Landlord against HP or its Subsidiary with respect to any
breach by HP or its Subsidiary of the Relevant Lease in permitting Agilent to so
occupy the Property without obtaining the required Lease Consent, for which HP
or its Subsidiary shall be solely responsible. Agilent shall not be entitled to
make any claim or demand against, or obtain reimbursement from, HP or its
applicable Subsidiary with respect to any costs, losses, claims, liabilities or
damages incurred by Agilent as a consequence of being obliged to vacate the
Property or in obtaining alternative premises, including, without limitation,
any enforcement action which a Landlord may take against Agilent.
(b) In the event that the Actual Completion Date for any Leased Property
or Sublease Property does not occur on the Separation Date, whether or not
Agilent occupies a Property as licensee
3
as provided in Section 1.6(a) above, Agilent shall, effective as of the
Separation Date, (i) pay HP all rents, service charges, insurance premiums and
other sums payable by HP or its applicable Subsidiary under any Relevant Lease
(as to Leased Properties) or under the Sublease Form (as to Sublease
Properties), (ii) observe the tenant's covenants, obligations and conditions
contained in HP's Lease (as to Leased Properties) or in the Sublease Form (as to
Sublease Properties) and (iii) indemnify, defend, protect and hold harmless HP
and its applicable Subsidiary from and against all losses, costs, claims,
damages and liabilities arising on account of any breach thereof by Agilent.
(c) HP shall supply promptly to Agilent copies of all invoices, demands,
notices and other communications received by HP or its or its applicable
Subsidiaries or agents in connection with any of the matters for which Agilent
may be liable to make any payment or perform any obligation pursuant to Section
1.6(b), and shall, at Agilent's cost, take any steps and pass on any objections
which Agilent may have in connection with any such matters. Agilent shall
promptly supply to HP any notices, demands, invoices and other communications
received by Agilent or its agents from any Landlord while Agilent occupies any
Property without the relevant Lease Consent.
Section 1.7 Obligation to Complete
(a) If, with respect to any Leased Property or Sublease Property, at any
time the relevant Lease Consent is formally and unconditionally refused in
writing, HP and Agilent shall commence good faith negotiations and use
commercially reasonable efforts to determine how to allocate the applicable
Property, based on the relative importance of the applicable Property to the
operations of each party, the size of the applicable Property, the number of
employees of each party at the applicable Property and the potential risk and
liability to each party in the event an enforcement action is brought by the
applicable Landlord. Such commercially reasonable efforts shall include
consideration of alternate structures to accommodate the needs of both parties
and the allocation of the costs thereof, including entering into amendments of
the size, term or other terms of the Relevant Lease, restructuring a proposed
lease assignment to be a sublease and relocating one party. If the parties are
unable to agree upon an allocation of the Property within fifteen (15) days
after commencement of negotiations between the parties as described above, then
either party may, by delivering written notice to the other, require that the
matter be referred to the Chief Financial Officers of both parties. In such
event, the Chief Financial Officers shall use commercially reasonable efforts to
determine the allocation of the Property, including having a meeting or
telephone conference within ten (10) days thereafter. If the parties are unable
to agree upon the allocation of an applicable Property within fifteen (15) days
after the matter is referred to the Chief Financial Officers of the parties as
described above, the disposition of the applicable Property and the risks
associated therewith shall be allocated between the parties as set forth in
subparts (b) and (c) of this section below.
(b) If, with respect to any Leased Property, the parties are unable to
agree upon the allocation of a Property as set forth in Section 1.7(a), HP may
by written notice to Agilent elect to apply to the relevant Landlord for consent
to sublease all of the relevant Property to Agilent for the remainder of the
Relevant Lease term less three (3) days at a rent equal to the rent from time to
time under the Relevant Lease, but otherwise on substantially the same terms and
conditions as the Relevant Lease. If HP makes such an election, until such time
as the relevant Lease Consent is obtained and a sublease is completed, the
provisions of Section 1.6 will apply and, on the grant of the Lease Consent
required to sublease the
4
Leased Property in question, HP shall sublease or cause its applicable
Subsidiary to sublease to Agilent the relevant Property in accordance with
Section 1.3.
(c) If the parties are unable to agree upon the allocation of a Property
as set forth in Section 1.7(a) and HP does not make an election pursuant to
Section 1.7(b) above, HP may elect by written notice to Agilent to require
Agilent to vacate the relevant Property immediately or by such other date as may
be specified in the notice served by HP (the "Notice Date"), in which case
Agilent shall vacate the relevant Property on the Notice Date but shall
indemnify HP and its applicable Subsidiary from and against all costs, claims,
losses, liabilities and damages in relation to the relevant Property arising
from and including the Separation Date to and including the later of the Notice
Date and date on which Agilent vacates the relevant Property, except for any
costs, losses, damages, claims and liabilities incurred by HP or its Subsidiary
with respect to any enforcement action taken by the Landlord against HP or its
Subsidiary with respect to any breach by HP or its Subsidiary of the Relevant
Lease in permitting Agilent to so occupy the Property without obtaining the
required Lease Consent. Agilent shall not be entitled to make any claim or
demand against or obtain reimbursement from HP or its applicable Subsidiary with
respect to any costs, losses, claims, liabilities or damages incurred by Agilent
as a consequence of being obliged to vacate the Property or obtaining
alternative premises, including, without limitation, any enforcement action
which a Landlord may take against Agilent.
Section 1.8 Form of Transfer
(a) The transfer or assignment to Agilent of each relevant Owned Property
and Leased Property shall be in substantially the form attached in Schedule 1 or
2, as applicable, with such amendments as are reasonably required by HP with
respect to a particular Property, including, without limitation, in all cases
where a relevant Landlord has required a guarantor or surety to guarantee the
obligations of Agilent contained in the relevant Lease Consent or any other
document which Agilent is required to complete, the giving of such guarantee by
a guarantor or surety, and the giving by Agilent and any guarantor or surety of
Agilent's obligations of direct obligations to HP or third parties where
required under the terms of any of the Lease Consent or any covenant, condition,
restriction, easement, lease or other encumbrance to which the Property is
subject.
(b) The subleases to be granted to Agilent with respect to the Sublease
Properties shall be substantially in the form of the Sublease Form and shall
include such amendments which in the reasonable opinion of HP are necessary with
respect to a particular Property or the relevant Lease Consent. Such amendments
shall be submitted to Agilent for approval, which approval shall not be
unreasonably withheld or delayed.
(c) The leases and subleases to be granted by Agilent to HP with respect
to the Leaseback Properties shall be substantially in the form of the Lease Form
or the Sublease Form, as applicable, with such amendments as are, in the
reasonable opinion of HP, necessary with respect to a particular Property. Such
amendments shall be submitted to Agilent for approval, which approval shall not
be unreasonably withheld.
(d) The leases to be granted to Agilent with respect to the New Lease
Properties shall be substantially in the form of the Lease Form and shall
include such amendments which in the reasonable
5
opinion of HP are necessary with respect to a particular Property. Such
amendments shall be submitted to Agilent for approval, which approval shall not
be unreasonably withheld or delayed.
Section 1.9 Casualty; Lease Termination
The parties hereto shall grant and accept transfers, assignments, leases or
subleases of the Properties as described in this Agreement, regardless of any
casualty damage or other change in the condition of the Properties. In
addition, subject to HP's obligations in Section 5.6 of the Separation
Agreement, in the event that HP's Lease with respect to a Leased Property or a
Sublease Property is terminated prior to the Separation Date, (a) HP shall not
be required to assign or sublease such Property, (b) Agilent shall not be
required to accept an assignment or sublease of such Property and (c) neither
party shall have any further liability with respect to such Property hereunder.
Section 1.10 Tenant's Fixtures and Fittings
The provisions of the Separation Agreement and the other Ancillary
Agreements shall apply to any trade fixtures and personal property located at
each Property (excluding any trade fixtures and personal property owned by third
parties).
Section 1.11 Services
(a) HP and Agilent each agree that, on or about the Separation Date, they
shall each enter into a Service Level Agreement with the other whereby, with
respect to each of the Sublease Properties, the New Lease Properties and the
Leaseback Properties, each party shall agree to supply to, or perform for the
benefit of, the other party (and the other party shall accept) such Real Estate
Services as each party currently supplies to or performs for the benefit of the
other with respect to such Properties, on the same terms and conditions as
currently apply, and at the cost and other terms as set forth in the Service
Level Agreements.
(b) Notwithstanding anything to the contrary herein, the parties agree and
acknowledge that there may be circumstances in which the parties mutually agree
that a formal lease or sublease will not be entered into in order to establish
shared occupancy of a Property, in which case such occupancy shall be (and the
Service Level Agreement referenced in Section 1.11(a) above shall provide that
the applicable party may occupy the relevant Property) on the terms and
conditions set forth in Sections 2-28 of the Lease Form or the terms and
conditions set forth in Sections 3 through the first sentence of Section 17 of
the Sublease Form, respectively.
Section 1.12 Adjustments
(a) HP and Agilent each acknowledge and agree that Additional Properties
may be acquired by HP prior to the Separation Date. Such Additional Properties
shall be treated hereunder as Owned Properties, Leased Properties, Sublease
Properties, New Lease Properties and/or Leaseback Properties by mutual agreement
of the parties based on whether the Additional Property was acquired by or for
the Agilent Business or HP's other businesses. In the event that the parties
are unable to agree by the Separation Date as to how any Additional Property is
to be treated, the matter shall be determined in accordance with the procedure
set forth in Section 1.7(a) above. In the event that the parties are unable
6
to agree within ten (10) business days of the Separation Date as to the
allocation of an Additional Property, the matter in dispute shall be determined
in accordance with the following guidelines:
(i) Properties which are occupied as to fifty percent (50%) or more
of the total area for the purposes of the Agilent Business shall be treated as
Owned Properties or Leased Properties (as appropriate) and the part which is not
occupied by the Agilent Business or a third party shall be treated as a
Leaseback Property; and
(ii) Properties which are occupied as to less than fifty percent
(50%) for the purposes of the Agilent Business shall be treated as Sublease
Properties or New Lease Properties (as appropriate).
(b) Following agreement or determination with respect to the Additional
Properties, the parties shall enter into and complete all such documents as may
be required to give effect to such agreement or determination.
(c) HP and Agilent each acknowledge and agree that their respective
requirements with regard to each of the Properties may alter between the date of
this Agreement and the Separation Date, in which case the parties may mutually
agree in writing to re-characterize the relevant Property as an Owned Property,
Leased Property, Sublease Property, New Lease Property and/or Leaseback Property
as appropriate.
Section 1.13 Costs
HP shall pay all reasonable costs and expenses incurred in connection with
obtaining the Lease Consents, including, without limitation, Landlord's consent
fees and attorneys' fees and any costs and expenses relating to re-negotiation
of HP's Leases. HP shall also pay all reasonable costs and expenses in
connection with the transfer of the Owned Properties and Leased Properties,
including title insurance premiums, escrow fees, recording fees, and any
transfer taxes arising as a result of the transfers.
ARTICLE II
PROPERTY OUTSIDE THE UNITED STATES
With respect to each of the properties located outside the United States
listed in the Owned and Leased Property Spreadsheet and the Colocation Sites
Spreadsheet, as well as any additional properties acquired by HP or a Subsidiary
prior to the Separation Date, HP and Agilent shall each enter into (if
necessary) or procure that its relevant Subsidiary enter into an agreement with
the other party or such Subsidiary of the other party as the other party may
direct whereby the parties thereto agree to transfer, assign, lease, sublease,
or leaseback, as the case may be, such property, as specified in such
spreadsheets in accordance with the Non-US Plan (or with respect to any
additional properties, in the manner agreed upon by the parties in accordance
with the applicable agreement). Such transfers, assignments, leases, subleases
or leasebacks shall, so far as the law in the jurisdiction in which such
property is located permits, be on terms and conditions substantially the same
as the terms and conditions of this Agreement. In the event of a conflict
between the terms of this Agreement and the terms of such local agreements, the
terms of the local agreements shall prevail.
7
ARTICLE III
MISCELLANEOUS
Section 3.1 Entire Agreement. This Agreement, the Separation Agreement,
the other Ancillary Agreements and the Exhibits and Schedules referenced or
attached hereto and thereto, constitutes the entire agreement between the
parties with respect to the subject matter hereof and shall supersede all prior
written and oral and all contemporaneous oral agreements and understandings with
respect to the subject matter hereof.
Section 3.2 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware as to all matters
regardless of the laws that might otherwise govern under principles of conflicts
of laws applicable thereto. Notwithstanding the foregoing, the applicable
Property transfers shall be performed in accordance with the laws of the state
in which the applicable Property is located.
Section 3.3 Notices. Any notice, demand, offer, request or other
communication required or permitted to be given by either party pursuant to the
terms of this Agreement shall be in writing and shall be deemed effectively
given the earlier of (i) when received, (ii) when delivered personally, (iii)
one (1) business day after being delivered by facsimile (with receipt of
appropriate confirmation), (iv) one (1) business day after being deposited with
an overnight courier service or (v) four (4) days after being deposited in the
U.S. mail, First Class with postage prepaid, and addressed to the attention of
the party's General Counsel at the address of its principal executive office or
such other address as a party may request by notifying the other in writing.
Section 3.4 Parties in Interest. This Agreement, including the Schedules
and Exhibits hereto, and the other documents referred to herein, shall be
binding upon and inure solely to the benefit of each party hereto and their
legal representatives and successors, and nothing in this Agreement, express or
implied, is intended to confer upon any other Person any rights or remedies of
any nature whatsoever under or by reason of this Agreement.
Section 3.5 Counterparts. This Agreement, including the Schedules and
Exhibits hereto, and the other documents referred to herein, may be executed in
counterparts, each of which shall be deemed to be an original but all of which
shall constitute one and the same agreement.
Section 3.6 Binding Effect; Assignment. This Agreement shall inure to
the benefit of and be binding upon the parties hereto and their respective legal
representatives and successors. This Agreement may not be assigned by any party
hereto. The Schedules and/or Exhibits attached hereto or referred to herein are
an integral part of this Agreement and are hereby incorporated into this
Agreement and made a part hereof as if set forth in full herein.
Section 3.7 Severability. If any term or other provision of this
Agreement or the Schedules or Exhibits attached hereto is invalid, illegal or
incapable of being enforced by any rule of law or public policy, all other
conditions and provisions of this Agreement shall nevertheless remain in full
force and effect so long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner materially adverse to any
party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall negotiate in
good faith to
8
modify this Agreement so as to effect the original intent of the parties as
closely as possible in an acceptable manner to the end that transactions
contemplated hereby are fulfilled to the fullest extent possible.
Section 3.8 Failure or Indulgence Not Waiver. No failure or delay on the
part of any party hereto in the exercise of right hereunder shall impair such
right or be construed to be a waiver of, or acquiescence in, any breach of any
representation, warranty or agreement herein, nor shall any single or partial
exercise of any such right preclude other or further exercise thereof or of any
other right.
Section 3.9 Amendment. No change or amendment will be made to this
Agreement except by an instrument in writing signed on behalf of each of the
parties to such agreement.
Section 3.10 Authority. Each of the parties hereto represents to the
other that (a) it has the corporate or other requisite power and authority to
execute, deliver and perform this Agreement, (b) the execution, delivery and
performance of this Agreement by it have been duly authorized by all necessary
corporate or other action, (c) it has duly and validly executed and delivered
this Agreement, and (d) this Agreement is a legal, valid and binding obligation,
enforceable against it in accordance with its terms subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and general equity principles.
Section 3.11 Interpretation. The headings contained in this Agreement, in
any Exhibit or Schedule hereto and in the table or contents to this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Any capitalized term used in any Schedule or
Exhibit but not otherwise defined therein, shall have the meaning assigned to
such term in this Agreement. When a reference is made in this Agreement to an
Article or a Section, Exhibit or Schedule, such reference shall be to an Article
or Section of, or an Exhibit or Schedule to, this Agreement unless otherwise
indicated.
ARTICLE IV
DEFINITIONS
The following terms, as used herein, shall have the following meanings:
Actual Completion Date means, with respect to each Property, the date upon which
completion of the transfer, assignment, lease or sublease of that Property
actually takes place.
Additional Properties means any leased or owned properties acquired by HP in the
United States after the date of the Separation Agreement and before the
Separation Date.
Colocation Sites Spreadsheet means the spreadsheet prepared by HP entitled
"Colocation Sites" dated October 13, 1999, as updated from time to time prior to
the Separation Date by mutual written agreement of the parties.
HP's Lease means, in relation to each Property, the lease(s) or sublease(s) or
license(s) under which HP or its applicable Subsidiary holds such Property and
any other supplemental document completed prior to the Actual Completion Date.
9
Landlord means the landlord under HP's Lease, and its successors and assigns,
and includes the holder of any other interest which is superior to the interest
of the landlord under HP's Lease.
Lease Consents means all consents, waivers or amendments required from the
Landlord or other third parties under the Relevant Leases to assign the
Relevant Leases to Agilent or to sublease the Sublease Properties to Agilent or
to sublease the Leaseback Properties to HP.
Lease Form means the form lease attached hereto as Schedule 4.
Leaseback Properties means each of (a) those Owned Properties located in the
United States identified as "Owned" and listed in the "Leaseback Properties"
area of the Colocation Sites Spreadsheet, with respect to part of which Agilent
is to grant a lease to HP and (b) those Leased Properties located in the United
States identified as "Leased" and listed in the "Leaseback Properties" area of
the Colocation Spreadsheet, with respect to part of which Agilent is to grant a
sublease to HP.
Leased Properties means those Properties located in the United States identified
as "Leased" and listed in the Owned and Leased Properties Spreadsheet.
New Lease Properties means those Properties located in the United States
identified as "Owned" and listed in the "Sublease and New Lease Properties" area
of the Colocation Sites Spreadsheet.
Owned and Leased Properties Spreadsheet means the spreadsheet prepared by HP
entitled "Owned & Leased Properties to be Transferred" dated October 13, 1999,
as updated from time to time prior to the Separation Date by mutual written
agreement of the parties.
Owned Properties means those Properties located in the United States identified
as "Owned" and listed in the Owned and Leased Properties Spreadsheet.
Property means the Owned Properties, the Leased Properties, the Sublease
Properties, the New Lease Properties, the Leaseback Properties and the
Additional Properties.
Real Estate Services means any services relating to the occupation or use of a
Property or the carrying out of either the Agilent Business or HP's other
businesses at a Property, including, without limitation, cleaning, garbage
disposal, repair, maintenance, receptionist services, utilities, mail delivery,
copying and facsimile services.
Relevant Leases means those of HP's Leases with respect to which the Landlord's
consent is required for assignment or sublease to a third party or which
prohibit assignments or subleases.
Retained Parts means those parts of the Owned Properties and the Leased
Properties which, following transfer or assignment to Agilent, are intended to
be leased or subleased to HP and those parts of the Sublease Properties and the
New Lease Properties which will not, and which are not intended to, be leased or
subleased to Agilent in accordance with this Agreement.
Sublease Form means the form sublease attached hereto as Schedule 3.
10
Sublease Property means those Properties located in the United States identified
as "Leased" and listed in the "Sublease and New Lease Properties" area of the
Colocation Sites Spreadsheet.
[SIGNATURES ON FOLLOWING PAGE]
11
IN WITNESS WHEREOF, each of the parties has caused this Real Estate Matters
Agreement to be executed on its behalf by its officers thereunto duly authorized
on the day and year first above written.
HEWLETT-PACKARD COMPANY
By: /s/ Xxx X. Xxxxxxx
------------------------------------------
Name: Xxx X. Xxxxxxx
----------------------------------------
Title: Associate General Counsel and
---------------------------------------
Assistant Secretary
---------------------------------------
AGILENT TECHNOLOGIES, INC.
By: /s/ Xxxxx Xxxxxxxx
------------------------------------------
Name: Xxxxx Xxxxxxxx
----------------------------------------
Title: Senior Vice President, General Counsel
---------------------------------------
and Secretary
---------------------------------------
[Signature Page to Real Estate Matters Agreement]
Schedule 1
----------
Form Transfer for Owned Properties
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000-0000
Attn: Real Estate Department/Xxxxx X. Xxxxxxxx
MAIL TAX STATEMENTS TO:
Agilent Technologies, Inc.
0000 Xxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attn: Tax Department
Documentary Transfer Tax is not of public record and is shown on a separate
sheet attached to this deed.
__________________________________________________________________________
GRANT DEED
FOR VALUABLE CONSIDERATION, the receipt of which is hereby acknowledged,
HEWLETT-PACKARD COMPANY, a Delaware corporation, successor by merger to HEWLETT-
PACKARD COMPANY, a California corporation, hereby grants to AGILENT
TECHNOLOGIES, INC., a Delaware corporation, the real property located in the
City of ____________, County of ____________, State of ____________, described
on Exhibit A attached hereto and made a part hereof.
Executed as of October ___, 1999.
HEWLETT-PACKARD COMPANY,
a Delaware corporation
By:__________________________
Name:________________________
Its:_________________________
EXHIBIT A
---------
LEGAL DESCRIPTION
Assessor's Parcel No.: _______________
2
STATE OF______________________)
COUNTY OF_____________________)
On ___________________, before me, _________________________, a Notary
Public in and for said County and State, personally appeared
_________________________________, personally known to me (or proved to me on
the basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s) or the entity upon
behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
____________________________
3
Schedule 2
----------
Form Transfer for Leased Properties
ASSIGNMENT OF LEASE
-------------------
THIS ASSIGNMENT OF LEASE (this "Assignment") is dated for reference
purposes as of November 1, 1999 and is made between Hewlett-Packard Company, a
Delaware corporation ("Assignor") and Agilent Technologies, Inc., a Delaware
corporation ("Assignee").
RECITALS
--------
This Assignment is made with reference to the following facts and with the
following intentions:
A. __________, or its predecessor in interest, as landlord ("Landlord"),
and Assignor or a predecessor in interest to Assignor, as tenant, entered into
that certain lease dated as of _______________ (the "Lease"), whereby Landlord
leased to Assignor certain premises located at
________________________________________ (the "Premises").
B. Assignor wishes to assign all of its right, title and interest under
the Lease to Assignee, and Assignee wishes to accept such assignment.
1. Assignment: For good and valuable consideration, receipt of which is
----------
hereby acknowledged, Assignor hereby assigns, transfers and conveys to Assignee,
and Assignee hereby accepts such assignment and assumes all of Assignor's
obligations and rights in, under and to the Lease and the Premises.
2. Effective Date: This Assignment shall be effective on (a) November 1,
--------------
1999 or (b) if Landlord's consent is required under the Lease to the assignment
of the Lease as described herein, such later date as Assignor receives
Landlord's written consent.
3. Miscellaneous: Assignor shall, at any time and from time to time,
-------------
execute such additional documents and take such additional actions as Assignee
or its successors or assigns may reasonably request to carry out the purposes of
this Assignment. This Assignment shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns. If either
party brings any action or legal proceeding with respect to this Assignment, the
prevailing party in such action shall be entitled to recover its reasonable
attorneys' fees and costs. If any one or more of the provisions contained in
this Assignment shall be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby. This Assignment
may be executed in one or more counterparts, each of which shall be an original,
but all of which, taken together, shall constitute one and the same Assignment.
This Assignment is subject to the exclusions set forth in Section 1.3(b)(i)-(iv)
of the General Assignment and Assumption Agreement dated as of November 1, 1999
between Assignor and Assignee.
IN WITNESS WHEREOF, the parties hereto have executed this Assignment
intending it to be effective as of the Effective Date.
ASSIGNOR: ASSIGNEE:
HEWLETT-PACKARD COMPANY, AGILENT TECHNOLOGIES, INC.,
a Delaware corporation a Delaware corporation
By:__________________________ By:__________________________
Its:_________________________ Its:_________________________
Date:________________________ Date:________________________
2
Schedule 3
----------
Form Sublease for Sublease Properties
and Leased Leaseback Properties
SUBLEASE
--------
This Sublease (this "Sublease") is entered into between _________________,
a Delaware corporation ("Sublessor") and ________________, a Delaware
corporation ("Sublessee"), as of November 1, 1999.
1. Premises Subleased. Sublessor hereby subleases to sublessee, and
------------------
sublessee hereby subleases from sublessor, upon the terms and conditions set
forth herein, certain premises (the "premises") consisting of approximately
_____ square feet, commonly known ______________________________, as shown on
exhibit a hereto.
2. Master Lease and Master Lessor. The Premises consist of a portion of
------------------------------
the premises (the "Master Premises") that are leased by Sublessor from
_________________________ ("Master Lessor") pursuant to a lease dated
_______________ (the "Master Lease"). In connection with its use of the
Premises, subject to any rules of Master Lessor, Sublessee shall also have the
non-exclusive right to use the common areas outside the Master Premises that
Sublessor has the right to use under the Master Lease and, subject to
Sublessor's reasonable rules and regulations, the hallways, stairways,
restrooms, kitchens, break rooms and other areas of the Master Premises that may
be reasonably necessary for Sublessee's use of the Premises as shown on Exhibit
A hereto (the "Shared Areas").
3. Term. The term of this Sublease (the "Term") shall commence on
----
November 1, 1999 and end on the date the current term of the Master Lease
expires, unless this Sublease is sooner terminated pursuant to its terms or the
Master Lease terminates for any reason. Notwithstanding the foregoing, either
party may terminate this Sublease by delivering to the other party at least
sixty (60) days prior written notice, which termination shall be effective as of
the later of the date set forth in the notice or October 31, 2001. Any
occupation by Sublessee following the expiration of the Term shall not
constitute an extension or renewal of this Sublease or the Term.
4. Rent. Sublessee shall pay Sublessor as rent for the Premises ("Base
----
Rent") its pro rata share (based on the ratio of the square footage of the
Premises to the square footage of the Master Premises (its "Pro Rata Share")) of
the rent payable under the Master Lease, together with an amount equal to
Sublessee's pro rata share (based on the ratio of square footage of the Premises
(excluding the Shared Areas) to the square footage of the Master Premises
(excluding the Shared Areas), of the rent payable under the Master Lease with
respect to the Shared Areas. Such amounts shall be due and payable within
thirty (30) days of delivery by Landlord of an invoice therefor, without
deduction or offset and without prior notice or demand, at the address indicated
by Sublessor in writing from time to time. Such Base Rent shall increase from
time to time based on increases in the base rent under the Master Lease. In
addition, Sublessee shall pay, as and when due under the Master Lease, (a) its
Pro Rata Share of all operating expenses, taxes, insurance and other costs
payable under the Master Lease and (b) all costs directly incurred by or at the
request of Sublessee with respect to its use of the Premises. All amounts
required to be paid by Sublessee under this Sublease other than Base Rent shall
be deemed additional rent.
5. Premises Subject to Master Lease. This Sublease is subject to all of
--------------------------------
the provisions of the Master Lease, and Sublessee shall be bound with respect to
the Premises by all the terms, covenants, and conditions of the Master Lease.
Except as set forth below, or to the extent inconsistent with the express
provisions of this Sublease, the terms and conditions of this Sublease shall
include all of the terms of the Master Lease and such terms are incorporated
into this Sublease as if fully set forth herein, except that: (a) each reference
in such incorporated sections to "Lease", "Premises", "Landlord" and "Tenant" or
like terms shall be deemed a reference to "Sublease", "Premises", "Sublessor"
and "Sublessee", respectively; (b) with respect to work, services, repairs,
restoration, insurance, indemnities, representations, warranties or the
performance of any other obligation of Master Lessor under the Master Lease, the
sole obligation of Sublessor shall be to request the same
2
in writing from Master Lessor as and when requested to do so by Sublessee, and
to use Sublessor's reasonable efforts to obtain Master Lessor's performance; (c)
with respect to any obligation of Sublessee to be performed under this Sublease,
wherever the Master Lease grants to Sublessor a specified number of days to
perform its obligations under the Lease, except as otherwise provided herein,
Sublessee shall have three (3) fewer days to perform the obligation, including,
without limitation, curing any defaults (provided, however, in no event shall
any such period be reduced to less than two (2) days); (d) with respect to any
approval required to be obtained from the landlord under the Master Lease, such
consent must be obtained from both Master Lessor and Sublessor; (e) in any case
where the landlord has the right to manage, supervise, control, repair, alter,
regulate the use of, enter or use the Premises, such right shall be deemed to be
for the benefit of both Master Lessor and Sublessor; (f) in any case where the
tenant is to indemnify, release or waive claims against the landlord, such
indemnity, release or waiver shall be deemed to run from Sublessee to both
Master Lessor and Sublessor; (g) in any case where the tenant is to execute and
deliver certain documents or notices to the landlord, such obligation shall be
deemed to run from Sublessee to both Master Lessor and Sublessor; (h) all
amounts payable under the Master Lease shall be paid to Sublessor; (i) Sublessee
shall not have the right to exercise any extension, expansion, contraction,
purchase, early termination or other rights personal to Tenant under the Master
Lease; and (j) Sublessee shall not have the right to make any alterations to the
Premises without the prior written consent of Sublessor and, if required under
the Master Lease, Master Lessor. Notwithstanding the foregoing, (a) the
following provisions of the Master Lease shall not be incorporated
herein:_________________
6. Use; Condition of the Premises. Sublessee may use the Premises only
------------------------------
for the purposes permitted under the Master Lease. Sublessee accepts the
Premises in "as is" condition.
7. Insurance; Waiver. Sublessee shall procure and maintain all insurance
-----------------
policies required by the tenant under the Master Lease with respect to the
Premises. All such liability policies shall name Sublessor and Master Lessor as
additional insureds. Notwithstanding anything to the contrary herein, Sublessor
and Sublessee hereby release each other, and their respective agents, employees,
subtenants, assignees and contractors, from all liability for damage to any
property that is caused by or results from a risk which is actually insured
against or which would normally be covered by "all risk" property insurance,
without regard to the negligence or willful misconduct of the entity so
released.
8. Indemnity. Each party shall defend, indemnify, protect and hold
---------
harmless the other from and against any and all liability, loss, claim, damage
and cost (including attorneys' fees) to the extent due to the negligence or
willful misconduct of the indemnifying party or its agents, employees or
contractors or the indemnifying party's violation of the terms of this Sublease
or the Master Lease. This indemnification shall survive the termination of this
Sublease.
9. Notices. Any notice given under this Sublease shall be in writing and
-------
shall be hand delivered or mailed (by registered mail, return receipt requested,
postage prepaid), addressed as follows: (a) if to Sublessee: (i) the Premises,
Attn.: __________ and (ii) _______________, Xxxx Xxxx, XX 00000, Attn.:
__________ of Real Estate; and (b) if to Sublessor: (i) the Premises, Attn.:
__________ and (ii) _______________, Xxxx Xxxx, XX 00000, Attn.: __________ of
Real Estate. Any notice shall be deemed to have been given when hand delivered
or, if mailed, three (3) business days after mailing.
10. Remedies of Sublessor Upon Default. If Sublessee defaults under any
----------------------------------
provision of this Sublease (after expiration of applicable notice and cure
periods), Sublessor shall be entitled to all of the remedies granted to Master
Lessor under the Master Lease, in addition to any remedies available at law or
in equity.
11. Nonassignment. Sublessee shall have no right to sublet the Premises
-------------
or to transfer any interest of Sublessee herein, except with the prior written
consent of Sublessor (which consent may be withheld in Sublessor's sole and
absolute discretion) and, if required under the Master Lease, Master Lessor, and
otherwise in strict accordance with the terms of the Master Lease, as
incorporated herein. Consent to one transfer shall not be deemed to constitute
consent to a subsequent transfer.
12. Repair; Surrender of the Premises. Sublessor shall have the right to
---------------------------------
perform any of Sublessee's repair, maintenance or other obligations under this
Sublease and charge Sublessee the actual cost thereof. Sublessee shall pay
Sublessor for such costs within thirty (30) days of delivery of an invoice
therefor. Upon the termination of this Sublease,
2
Sublessee shall remove all of its personal property and surrender the Premises
in the same condition as of the date hereof, ordinary wear and tear and damage
due to casualty and condemnation excepted.
13. Right to Cure Defaults. If Sublessee fails to perform any act on its
----------------------
part to be performed hereunder, Sublessor may, but shall not be obligated to,
after passage of any applicable notice and cure periods (except in the case of
an emergency, in which case no cure period is required), make such payment or
perform such act. All such sums paid, and all reasonable costs and expenses of
performing any such act, shall be deemed additional rent payable by Sublessee to
Sublessor upon demand.
14. Right to Enter. Provided Sublessor complies with all of Sublessee's
--------------
reasonable security measures, Sublessor or its agents may, upon reasonable
notice, enter the Premises at any reasonable time for the purpose of inspecting
the same, supplying any service to be provided by Sublessor to Sublessee or for
any other purpose permitted under this Sublease.
15. Quiet Enjoyment; Sublessor's Obligations. Sublessee shall peacefully
----------------------------------------
have, hold and enjoy the Premises, subject to the terms and conditions of this
Sublease. Sublessor shall perform all of its obligations under the Master Lease
to the extent Sublessee has not expressly agreed to perform such obligations
under this Sublease. Sublessor shall not terminate or take any action which
could give rise to the right of Master Lessor to terminate the Master Lease,
amend or waive any provisions under the Master Lease or make any elections,
exercise any right or remedy or give any approval under the Master Lease that
could result in a substantial interference with Sublessee's use of the Premises
or materially increase Sublessee's obligations or decrease Sublessee's rights
under this Sublease without, in each instance, Sublessee's prior written
consent. Sublessor, with respect to the obligations of Master Lessor under the
Master Lease, shall request Master Lessor in writing to perform such obligations
as and when requested to do so by Sublessee, and to use Sublessor's reasonable
efforts to obtain Master Lessor's performance.
16. Hazardous Materials. Sublessee shall not, without the prior written
-------------------
consent of Sublessor, use, store, transport or dispose of any Hazardous Material
in or about the Premises, except for Hazardous Materials of a type and in
amounts used by Sublessee immediately prior to the Commencement Date, to the
extent permitted under the Master Lease. Sublessee, at its sole cost, shall
comply with all laws and the provisions of the Master Lease relating to its use
of Hazardous Materials. If Hazardous Materials stored, used, disposed of,
emitted, or released on or about the Building by Sublessee or its agents,
employees or contractors result in contamination of the Building or the water or
soil thereunder, then Sublessee shall promptly take any and all action necessary
to clean up such contamination as required by law and the provisions of the
Master Lease. Sublessee shall indemnify, defend, protect, and hold Sublessor
and its officers, directors, employees, successors and assigns harmless from and
against, all losses, damages, claims, costs, and liabilities, including
attorneys' fees and costs, arising out of Sublessee's use, discharge, disposal,
storage, transport, release or emission of Hazardous Materials on or about the
Building during the Term in violation of applicable law or the provisions of the
Master Lease. "Hazardous Materials" shall mean any material or substance that
is now or hereafter designated by any applicable governmental authority to be,
or regulated by an applicable governmental authority as, radioactive, toxic,
hazardous or otherwise a danger to health, reproduction or the environment.
17. Parking; Signage. Sublessee shall have the right to use its Pro Rata
----------------
Share of the parking spaces available to Sublessor under the Master Lease.
Sublessor may, in Sublessor's sole and absolute discretion, upon request by
Sublessee, use reasonable efforts to cause Master Lessor to provide Sublessee
with directory and other signage, in accordance with a design and at a location
acceptable to Master Lessor, Sublessor and Sublessee and in accordance with all
applicable laws.
18. Miscellaneous. This Sublease shall in all respects be governed by and
-------------
construed in accordance with the laws of the state in which the Premises are
located. If any term of this Sublease is held to be invalid or unenforceable by
any court of competent jurisdiction, then the remainder of this Sublease shall
remain in full force and effect to the fullest extent possible under the law,
and shall not be affected or impaired. This Sublease may not be amended except
by the written agreement of all parties hereto. Time is of the essence with
respect to the performance of every provision of this Sublease in which time of
performance is a factor. Any executed copy of this Sublease shall be deemed an
original for all purposes. This Sublease shall, subject to the provisions
regarding assignment and subletting, apply to and bind the respective heirs,
successors, executors, administrators and assigns of Sublessor and Sublessee.
The language in all parts of this Sublease shall
3
in all cases be construed as a whole according to its fair meaning, and not
strictly for or against either Sublessor or Sublessee. The captions used in this
Sublease are for convenience only and shall not be considered in the
construction or interpretation of any provision hereof. When a party is required
to do something by this Sublease, it shall do so at its sole cost and expense
without right of reimbursement from the other party unless specific provision is
made therefor. If either party brings any action or legal proceeding with
respect to this Sublease, the prevailing party shall be entitled to recover
reasonable attorneys' and experts' fees and court costs. Whenever one party's
consent or approval is required to be given as a condition to the other party's
right to take any action pursuant to this Sublease, unless another standard is
expressly set forth, such consent or approval shall not be unreasonably withheld
or delayed. This Sublease may be executed in counterparts. In the event that a
Service Level Agreement between the parties is in effect with respect to the
Premises, the parties intend that all elements of Base Rent payable hereunder
shall be paid to Sublessor pursuant to the Service Level Agreement. Accordingly,
insofar as Sublessee has paid all elements of Base Rent under the Service Level
Agreement, such payment shall constitute payment of Base Rent hereunder.
In witness whereof, the parties have executed this Sublease as of the date first
written above.
SUBLESSOR: SUBLESSEE:
___________________________, __________________________,
a Delaware corporation a Delaware corporation
By:____________________________ By:_____________________________
Name:__________________________ Name:___________________________
Its:___________________________ Its:____________________________
4
EXHIBIT A
---------
THE PREMISES, INCLUDING SHARED AREAS
5
Schedule 4
----------
Form Lease for New Lease Properties
and Owned Leaseback Properties
LEASE
-----
This Lease (this "Lease") is entered into between ____________________, a
Delaware corporation ("Landlord") and ____________________, a Delaware
corporation ("Tenant") as of November 1, 1999.
1. Premises. Landlord hereby leases to Tenant, and Tenant hereby leases
--------
from Landlord, upon the terms and conditions set forth herein, certain premises
consisting of approximately _____ square feet (the "Premises") within the
building (the "Building") owned by Landlord, commonly known as
_____________________________, as shown on Exhibit A hereto. In connection with
---------
its use of the Premises, Tenant shall also have the non-exclusive right to use,
subject to Landlord's reasonable rules and regulations, the hallways, stairways,
restrooms, kitchens, break rooms and other areas of the Building that may be
reasonably necessary for Tenant's use of the Premises (the "Shared Areas"), as
shown on Exhibit A hereto.
---------
2. Term. The term of this Lease (the "Term") shall commence on November
----
1, 1999 (the "Commencement Date") and end on October 31, 2001, unless this Lease
is sooner terminated pursuant to its terms.
3. Rent. Tenant shall pay Landlord as rent for the Premises
----
("Base Rent") for each month during the Term, an amount equal to the Occupancy
Cost of the Premises, including use of the Shared Areas, plus an administrative
fee equal to five percent (5%) of such cost. As used herein, "Occupancy Cost"
shall refer to (a) the "triple net" rental value of the Premises (which shall
mean the management reporting depreciation on the land, the land improvements,
the building, the building improvements and the building-related building
equipment with respect to the Building, based on Hewlett-Packard Company's
methods and procedures as of the date hereof (the "Rental Component")) and (b) a
pro rata share of Landlord's actual cost of the following with respect to the
Building and property on which the Building is located: Landlord's liability and
property insurance, property taxes and assessments, utilities (to the extent not
separately metered), maintenance to the common areas and areas for the common
benefit of all of the occupants of the Building and other charges reasonably and
customarily charged by landlords for similar premises (the "Non-Rental
Component"). Such amounts shall be due and payable within thirty (30) days of
delivery by Landlord of an invoice therefor, without any deduction or offset and
without prior notice or demand, at the address indicated by Landlord from time
to time. Rent for any period which is for less than one (1) month of the Term
shall be a pro rata portion of the monthly installment. All amounts required to
be paid by Tenant under this Lease other than Base Rent shall be deemed
Additional Rent (which, collectively with Base Rent, shall be deemed "Rent").
Notwithstanding the provisions of the first two sentences of this section, in
the event the Term extends or is extended by agreement of the parties beyond
October 31, 2001, unless the parties otherwise expressly agree in writing, Base
Rent shall be an amount equal to the Occupancy Cost of the Premises, including
the use of the Shared Areas, plus an administrative fee equal to ten percent
(10%) of the Non-Rental Component of the Occupancy Cost; provided that the
Rental Component shall be equal to the fair market value of the Premises on a
"triple net" basis. In such event, the parties shall negotiate in good faith to
determine the fair market value of the Premises. In the event the parties are
unable to agree upon the fair market value prior to August 1, 2001, the fair
market rent shall be determined by three appraisers selected and governed by the
rules of the American Arbitration Association.
4. Use; Compliance with Laws; Rules. Tenant may use the Premises only
--------------------------------
for the uses made of the Premises by Tenant immediately prior to the
Commencement Date. Tenant shall promptly observe and comply with all laws with
respect to Tenant's use of the Premises; provided, however, that Tenant shall
not be required to comply with any laws
1
requiring the construction of alterations in the Premises, unless due to
Tenant's particular use of the Premises. Tenant shall not do or permit anything
to be done in, about or with respect to the Premises which would (a) injure the
Premises or (b) vibrate, shake, overload, or impair the efficient operation of
the Premises or the building systems located therein. Tenant shall comply with
all reasonable rules and regulations promulgated from time to time by Landlord.
5. Insurance. Landlord shall obtain and keep in full force and effect,
---------
at Landlord's sole cost, a policy of "all risk" property insurance insuring the
Premises. Tenant shall obtain and keep in full force and effect, at Tenant's
sole cost, a commercial general liability policy of insurance protecting Tenant
against claims for bodily injury, personal injury and property damage based
upon, involving or arising out of Tenant's use or occupancy of the Premises and
all areas appurtenant thereto. Such insurance shall be on an occurrence basis
providing single limit coverage in an amount not less than $2,000,000 per
occurrence. The policy shall include coverage for liability assumed under this
Lease as an "insured contract" for the performance of Tenant's indemnity
obligations under this Lease, and shall name Landlord as an additional insured.
In addition, Tenant shall obtain and keep in full force and effect, at Tenant's
sole cost, a policy of "all risk" property insurance insuring Tenant's personal
property in the Premises. Tenant shall deliver certificates evidencing such
insurance to Landlord upon request. Each such insurance policy shall be in a
form and from an insurance company reasonably acceptable to Landlord.
6. Taxes. Landlord shall pay before delinquency all real property taxes
-----
on the Building. Tenant shall pay before delinquency all taxes imposed against
Tenant's personal property.
7. Release and Waiver of Subrogation. Notwithstanding anything to the
---------------------------------
contrary herein, Landlord and Tenant hereby release each other, and their
respective agents, employees, subtenants, and contractors, from all liability
for damage to any property that is caused by or results from a risk which is
actually insured against or which would normally be covered by "all risk"
property insurance, without regard to the negligence or willful misconduct of
the entity so released.
8. Indemnity. Each party shall defend, indemnify, protect and hold
---------
harmless the other from and against any and all liability, loss, claim, damage
and cost (including attorneys' fees) to the extent due to the negligence or
willful misconduct of the indemnifying party or its agents, employees or
contractors or the indemnifying party's violation of the terms of this Lease.
This indemnification shall survive the termination of this Lease.
9. Hazardous Materials. Tenant shall not, without the prior written
-------------------
consent of Landlord, use, store, transport or dispose of any Hazardous Material
in or about the Premises, except for Hazardous Materials of a type and in
amounts used by Tenant immediately prior to the Commencement Date. Tenant, at
its sole cost, shall comply with all laws relating to its use of Hazardous
Materials. If Hazardous Materials stored, used, disposed of, emitted, or
released on or about the Building by Tenant or its agents, employees or
contractors result in contamination of the Building or the water or soil
thereunder, then Tenant shall promptly take any and all action necessary to
clean up such contamination as required by law. Tenant shall indemnify, defend,
protect and hold Landlord and its officers, directors, employees, successors and
assigns harmless from and against, all losses, damages, claims, costs and
liabilities, including attorneys' fees and costs, arising out of Tenant's use,
discharge, disposal, storage, transport, release or emission of Hazardous
Materials on or about the Building during the Term in violation of applicable
law. "Hazardous Materials" shall mean any material or substance that is now or
hereafter designated by any applicable governmental authority to be, or
regulated by any applicable governmental authority as, radioactive, toxic,
hazardous or otherwise a danger to health, reproduction or the environment.
10. Repairs. Tenant accepts the Premises in "as is" condition. Tenant
-------
shall maintain in good order and condition the Premises; provided, however, that
Tenant shall in no event be required to perform any repairs and maintenance (a)
necessitated by the acts or omissions of Landlord or its agents, employees or
invitees, (b) to any of the building systems servicing the Premises or any
structural portions of the Premises, or (c) which could be properly treated as a
capital expenditure under generally accepted accounting principles as in effect
from time to time. Except for obligations which are Tenant's responsibility
pursuant to the preceding sentence, Landlord shall maintain the Building in
good, working order.
11. Alterations. No alterations or improvements shall be made to the
-----------
Premises without the prior written consent of Landlord. All work performed in
connection with alterations shall comply within all laws and applicable
2
requirements of insurance carriers and shall be performed in a good and
workmanlike manner by a licensed contractor approved by Landlord. Tenant shall
keep the Building free of any liens arising out of work performed by or for
Tenant. All alterations that cannot be removed without material damage to the
Premises shall be deemed part of the Premises upon installation. Unless Landlord
waives such right at the time it consents to any alteration, Landlord shall have
the right to require Tenant to remove any alterations it constructs in the
Premises upon the termination of this Lease.
12. Services. Landlord shall provide to Tenant electricity, water and
--------
heating, ventilating and air conditioning and other utilities at the levels
provided immediately prior to the Commencement Date, as well as the other
services described in the Service Level Agreement entered into between the
parties. Landlord shall not, however, be liable for the interruption of any such
services or utilities for causes beyond Landlord's reasonable control.
13. Damage. If the Premises are damaged by any peril, Landlord shall
------
restore the Premises to substantially the same condition as existed immediately
prior to such damage, unless this Lease is terminated by Landlord or Tenant as
set forth below. Landlord shall have the right to terminate this Lease, which
option may be exercised by delivery to Tenant of a written notice within thirty
(30) days after the date of such damage, in the event that: (a) the Premises are
damaged by a peril both not covered by the type of insurance Landlord is
required to carry under this Lease and not actually covered by valid and
collectible insurance carried by Landlord to such an extent that the estimated
cost to restore the Premises exceeds five percent (5%) of the then actual
replacement cost thereof (and Tenant does not agree to pay the uninsured
amount); or (b) the damage to the Premises cannot reasonably be restored within
one hundred eighty (180) days. If the Premises are damaged due to any peril,
Tenant shall be entitled to an abatement of all Rent to the extent of the
interference with Tenant's use of the Premises occasioned thereby. If the damage
resulting therefrom cannot be (or is not in fact) repaired within one hundred
eighty (180) days following the occurrence of such event, then Tenant also shall
be entitled to terminate this Lease by delivery of written notice of termination
to Landlord at any time prior to restoration of the Premises.
14. Condemnation. If all or any part of the Premises is taken by the
------------
exercise of the power of eminent domain or a voluntary transfer in lieu thereof
(a "Condemnation"), this Lease shall terminate as to the part of the Premises
taken. If the Premises cannot be restored within one hundred eighty days (180)
days of the Condemnation and made reasonably suitable for Tenant's continued
occupancy, then Tenant shall have the right to terminate this Lease by delivery
of written notice to Landlord within thirty (30) days of such Condemnation. If
this Lease is not terminated following a Condemnation, Landlord shall make all
repairs and alterations that are reasonably necessary to make the portion of the
Premises not taken a complete architectural unit reasonably suitable for
Tenant's occupancy, and Rent shall be reduced in proportion to the reduction in
utility to the Premises following the Condemnation. Tenant shall be entitled to
receive any Condemnation proceeds for the unamortized value of alterations
installed in the Premises at Tenant's expense, Tenant's relocation costs and
lost goodwill. The balance of the award shall be the property of Landlord.
15. Assignment and Subletting. Tenant may not assign this Lease, sublet
-------------------------
the Premises or permit any use of the Premises by another party (collectively,
"Transfer"), without the prior written consent of Landlord, which consent may be
withheld in Landlord's sole and absolute discretion. An assignment or transfer
by operation of law or otherwise in connection with a merger, consolidation,
reorganization, stock sale or other like transaction shall also constitute a
Transfer requiring Landlord's consent hereunder. Landlord's consent to one
Transfer shall not constitute consent to a subsequent transfer.
16. Default. Tenant shall be in default of its obligations under this
-------
Lease if any of the following events occur: (a) Tenant fails to pay any Rent
when due, when such failure continues for five (5) days after written notice
from Landlord to Tenant of a delinquency; (b) Tenant fails to perform any term,
covenant or condition of this Lease (except those requiring payment of Rent) and
fails to cure such breach within thirty (30) days after delivery of a written
notice specifying the nature of the breach; provided, however, that if more than
thirty (30) days reasonably are required to remedy the failure, then Tenant
shall not be in default if Tenant commences the cure within the thirty (30) day
period and thereafter diligently endeavors to complete the cure; (c) Tenant
makes a general assignment of its assets for the benefit of its creditors,
including attachment of, execution on, or the appointment of a custodian or
receiver with respect to a substantial part of Tenant's property or any property
essential to the conduct of its business; or (d) a petition is filed by or
against Tenant under the bankruptcy laws of the United States or any other
debtors' relief law or statute, unless such petition is dismissed within sixty
(60) days after filing.
3
17. Remedies. In the event of any default by Tenant, Landlord shall have
--------
the following remedies, in addition to all other rights and remedies provided by
any law or otherwise provided in this Lease, to which Landlord may resort
cumulatively or in the alternative:
a. Landlord may, at Landlord's election, keep this Lease in effect
and enforce by an action at law or in equity all of its rights and remedies
under this Lease, including (i) the right to recover the Rent and other sums as
they become due by appropriate legal action, (ii) the right to make payments
required of Tenant or perform Tenant's obligations and be reimbursed by Tenant
for the cost thereof, (iii) the remedies of injunctive relief and specific
performance to compel Tenant to perform its obligations under this Lease, and
(iv) the right to recover the Rent as it becomes due under this Lease. Landlord
shall have the remedy described in California Civil Code Section 1951.4
(landlord may continue lease in effect after tenant's breach and abandonment and
recover rent as is becomes due, if tenant has the right to sublet or assign,
subject only to reasonable limitations).
b. Landlord may, at Landlord's election, terminate this Lease by
giving Tenant written notice of termination, in which event this Lease shall
terminate on the date set forth for termination in such notice. Any such
termination shall not relieve Tenant from its obligation to pay sums then due
Landlord or from any claim against Tenant for damages or Rent previously accrued
or then accruing. In the event Landlord terminates this Lease, Landlord shall be
entitled, at Landlord's election, to damages in an amount as permitted under
applicable law, including, without limitation: (i) the worth at the time of
award of the amount by which the unpaid Rent for the balance of the term after
the time of award exceeds the amount of such rental loss that Tenant proves
could be reasonably avoided, computed by discounting such amount at the discount
rate of the Federal Reserve Bank of San Francisco at the time of award plus one
percent (1%); and (ii) any other amount necessary to compensate Landlord for all
detriment proximately caused by Tenant's failure to perform Tenant's obligations
under this Lease, or which in the ordinary course of things would be likely to
result therefrom.
18. Right to Cure Defaults. If Tenant fails to pay any sum of money to
----------------------
Landlord, or fails to perform any other act on its part to be performed
hereunder, then Landlord may, but shall not be obligated to, after passage of
any applicable notice and cure periods (except in the case of an emergency, in
which case no cure period is required), make such payment or perform such act.
All such sums paid, and all reasonable costs and expenses of performing any such
act, shall be deemed Additional Rent payable by Tenant to Landlord upon demand.
19. Surrender; Holdover. Prior to expiration of this Lease, Tenant shall
-------------------
remove all of its personal property and shall surrender the Premises to Landlord
broom clean, in the same condition as exists on the Commencement Date,
reasonable wear and tear, alterations that Landlord agrees in writing may be
surrendered, casualty and condemnation, excepted. If the Premises are not so
surrendered, then Tenant shall be liable to Landlord for all costs incurred by
Landlord in returning the Premises to the required condition. In the event that
Tenant does not surrender the Premises upon the expiration or earlier
termination of this Lease as required above, Tenant shall indemnify, defend,
protect and hold harmless Landlord from and against all loss, cost, claim,
damage and liability resulting from Tenant's delay in surrendering the Premises
and pay Landlord holdover rent in an amount equal to one hundred fifty percent
(150%) of the Base Rent payable under this Lease during the last month of the
Term.
20. Estoppel Certificates. Within ten (10) calendar days after receipt of
---------------------
written demand by either party, the other party shall execute and deliver to the
requesting party an estoppel certificate (a) certifying that this Lease is
unmodified and in full force and effect or, if modified, the nature of such
modification; (b) acknowledging, to the best of the responding party's
knowledge, that there are no uncured defaults on the part of the requesting
party; and (c) certifying such other information as is reasonably required by
the requesting party.
21. Subordination. This Lease is subject and subordinate to all present
-------------
and future ground leases, underlying leases, mortgages, deeds of trust or other
encumbrances, and all renewals, modifications and replacements thereof affecting
any portion of the Building (collectively, the "Mortgages"). Notwithstanding the
foregoing, such subordination to future Mortgages shall be conditioned upon
Tenant's receipt of a recognition agreement from the holder of the applicable
Mortgage in form reasonably acceptable to Tenant.
4
22. Landlord's Right to Enter. Provided Landlord complies with all of
-------------------------
Tenant's reasonable security measures, Landlord or its agents may, upon
reasonable notice (except in the case of emergency), enter the Premises at any
reasonable time for the purpose of inspecting the same, supplying any service to
be provided by Landlord to Tenant, making necessary alterations or repairs or
for any other purpose permitted under this Lease.
23. Late Charge. If Tenant fails to pay to Landlord any amount due
-----------
hereunder within five (5) days after the due date, Tenant shall pay Landlord
upon demand a late charge equal to five percent (5%) of the delinquent amount
accruing from the due date. In addition, Tenant shall pay to Landlord interest
on all amounts due, at the rate of prime plus two percent (2%) or the maximum
rate allowed by law, whichever is less, from the due date to and including the
date of the payment.
24. Notices. Any notice given under this Lease shall be in writing and
-------
shall be hand delivered or mailed (by registered mail, return receipt requested,
postage prepaid), addressed as follows: (a) if to Tenant: (i) the Premises,
Attn.: _______________ and (ii) ____________________, Xxxx Xxxx, XX 00000,
Attn.: __________ of Real Estate; and (b) if to Landlord: (i) the Premises,
Attn.: __________ and (ii) ____________________, Xxxx Xxxx, XX 00000, Attn.:
__________ of Real Estate. Any notice shall be deemed to have been given when
hand delivered or, if mailed, three (3) business days after mailing.
25. Effect of Conveyance. As used in this Lease, the term "Landlord"
--------------------
means the owner of the Building, or the holder of a leasehold interest in the
Building pursuant to a superior lease. In the event of any assignment or
transfer of the Premises by Landlord, Landlord shall be and hereby is entirely
relieved of all covenants and obligations of Landlord accruing after the date of
such transfer, and it shall be deemed and construed that any transferee has
assumed and shall carry out all covenants and obligations thereafter to be
performed by Landlord hereunder.
26. Parking. Tenant shall have the right to use throughout the Term its
-------
pro rata share (based on the ratio of the square footage of the Premises to the
square footage of the Building ("Pro Rata Share")) of the parking spaces in the
Building's parking lot.
27. Signage. Landlord may, in Landlord's sole and absolute discretion,
-------
upon request by Tenant, provide Tenant with directory signage and other signage
(taking into consideration Tenant's Pro Rata Share of the Building), in
accordance with a design and at a location that is mutually acceptable to
Landlord and Tenant and in accordance with applicable laws.
28. Miscellaneous. This Lease shall in all respects be governed by and
construed in accordance with the laws of the state in which the Premises are
located. If any term of this Lease is held to be invalid or unenforceable by any
court of competent jurisdiction, then the remainder of this Lease shall remain
in full force and effect to the fullest extent possible under the law, and shall
not be affected or impaired. This Lease may not be amended except by the written
agreement of all parties hereto. Time is of the essence with respect to the
performance of every provision of this Lease in which time of performance is a
factor. Any executed copy of this Lease shall be deemed an original for all
purposes. This Lease shall, subject to the provisions regarding assignment and
subletting, apply to and bind the respective heirs, successors, executors,
administrators and assigns of Landlord and Tenant. The language in all parts of
this Lease shall in all cases be construed as a whole according to its fair
meaning, and not strictly for or against either Landlord or Tenant. The captions
used in this Lease are for convenience only and shall not be considered in the
construction or interpretation of any provision hereof. When a party is required
to do something by this Lease, it shall do so at its sole cost and expense
without right of reimbursement from the other party unless specific provision is
made therefor. If either party brings any action or legal proceeding with
respect to this Lease, the prevailing party shall be entitled to recover
reasonable attorneys' and experts' fees and court costs. Whenever one party's
consent or approval is required to be given as a condition to the other party's
right to take any action pursuant to this Lease, unless another standard is
expressly set forth, such consent or approval shall not be unreasonably withheld
or delayed. This Lease may be executed in counterparts. In the event that a
Service Level Agreement between the parties is in effect with respect to the
Premises, the parties intend that all elements of Base Rent payable hereunder
shall be paid to Landlord
5
pursuant to the Service Level Agreement. Accordingly, insofar as Tenant has paid
all elements of Base Rent under the Service Level Agreement, such payment shall
constitute payment of Base Rent hereunder.
IN WITNESS WHEREOF, the parties have executed this Lease as of the day
first above written.
LANDLORD: TENANT:
______________________________, ______________________________,
a Delaware corporation a Delaware corporation
By:____________________________ By:____________________________
Name:__________________________ Name:__________________________
Its:___________________________ Its:___________________________
6
IN WITNESS WHEREOF, each of the parties has caused this Real Estate
Matters Agreement to be executed on its behalf by its officers thereunto duly
authorized on the day and year first above written.
HEWLETT-PACKARD COMPANY
By: /s/ Xxx X. Xxxxxxx
-----------------------------------------
Name: Xxx X. Xxxxxxx
---------------------------------------
Title: Associate General Counsel
and Assistant Secretary
--------------------------------------
AGILENT TECHNOLOGIES, INC.
By:_________________________________________
Name:_______________________________________
Title:______________________________________
[Signature Page to Real Estate Matters Agreement]
IN WITNESS WHEREOF, each of the parties has caused this Real Estate
Matters Agreement to be executed on its behalf by its officers thereunto duly
authorized on the day and year first above written.
HEWLETT-PACKARD COMPANY
By:_____________________________________________
Name:___________________________________________
Title:__________________________________________
AGILENT TECHNOLOGIES, INC.
By: /s/ Xxxxx Xxxxxxxx
---------------------------------------------
Name: Xxxxx Xxxxxxxx
-------------------------------------------
Senior Vice President, General Counsel
Title: and Secretary
------------------------------------------
[Signature Page to Real Estate Matters Agreement]
EXHIBIT A
---------
THE PREMISES, INCLUDING SHARED AREAS
7
