Exhibit 10.7.1
ASSIGNMENT OF LEASE
This Assignment of Lease ("Assignment") is made this 2nd day of September,
1998 by and between Netscape Communications, Inc., a Delaware corporation, whose
address is 000 Xxxx Xxxxxxxxxxx Xxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx 00000
("Netscape") and Cobalt Networks, Inc., a California corporation, whose address,
from and after the Effective Date will be 000 Xxxxx Xxxxxx, Xxxxxxxx Xxxx,
Xxxxxxxxxx 00000 ("Assignee").
RECITALS
A. Netscape leases certain premises consisting of a portion of an
industrial building containing approximately 15,350 square feet, located at 000
Xxxxx Xxxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx, pursuant to that certain Sublease dated
as of October 28, 1996 between Xxxxx Corporation (the "Master Sublandlord"), as
sublandlord, and Netscape, as subtenant, as amended by that certain Addendum One
to Sublease dated as of November 6, 1996 (as so amended, the "Master Sublease"),
as more particularly described therein (the "Premises"). The Master Sublease is
attached hereto as Exhibit A. Master Sublandlord leases the Premises under a
Lease (the "Master Lease") dated August 10, 1993, between Renault & Xxxxxxx
Solar Xxxxx Joint Venture, as lessor ("Master Landlord") and Sublandlord, as
lessee. The Master Lease is attached hereto as Exhibit B; and
B. Netscape now wishes to assign all of its right, title and interest in
the Master Sublease to Assignee and Assignee wishes to accept the assignment
from Netscape and assume all of the Netscape's obligations under the Master
Sublease; and
C. The Master Sublease requires Master Sublandlord's and Master
Landlord's respective consents to an assignment of Netscape's interest in the
Master Sublease.
AGREEMENT
The parties agree as follows:
1. Effective Date of Assignment: This Agreement shall take effect on
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September 3, 1998 (the "Effective Date"). Netscape shall give possession of the
Premises to Assignee on that date.
2. Assignment and Assumption: Netscape assigns and transfers to Assignee
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all of its right, title and interest in the Master Sublease and Assignee accepts
the assignment and assumes and agree to perform, from the Effective Date, as a
direct obligation to Master Sublandlord, all of the provisions of the Master
Sublease.
3. Netscape's Liability: From and after the Effective Date, Netscape
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shall have no liability for performance of the provisions of the Master
Sublease.
4. Hold Harmless: Netscape shall indemnify and hold harmless Assignee
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from all damages, liabilities, claims, judgments, actions, reasonable attorneys'
fees, consultants' fees, cost and expenses arising from any breach by Netscape
of any terms on the Sublease prior to the Effective Date, or any
misrepresentation made by Netscape herein. Assignee shall indemnify and hold
harmless Netscape from all damages, liabilities, claims, judgments, actions,
reasonable attorneys' fees, consultants' fees, cost and expenses arising from
any breach by Assignee of any terms of the Lease from or after the Effective
Date.
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5. Payment: Assignee agrees that it will pay Netscape the sum of thirteen
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thousand, seventy six dollars ($13,076.00). Such amount will be paid to Netscape
at the address set forth above, on or before the Effective Date.
6. Security Deposit: The parties acknowledge that Master Sublandlord
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holds a security deposit in the amount of $18,420 (the "Security Deposit").
Netscape releases all claims to the Security Deposit for the benefit of
Assignee, subject to the provisions of the Master Sublease.
7. Attorney's Fees: If there is any legal or arbitration action or
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proceeding between the parties to enforce any provision of this Assignment or to
protect or establish any right or remedy of any of the parties, the unsuccessful
party to such action or proceeding will pay to the prevailing party all costs
and expenses, including reasonable attorney's fees (including allocated costs of
Netscape's in-house attorney) incurred by such prevailing party in such action
or proceeding and in any appearance in connection therewith, and if such
prevailing party recovers a judgment in any such action, proceeding or appeal,
such costs, expenses and attorney's fees will be determined by the court or
arbitration panel handling the proceeding and will be included in and as a part
of such judgment.
8. Representations and Warranties: Netscape represents and warrants to
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Assignee as of the date hereof and as of the Effective Date: (i) the Master
Sublease attached as Exhibit A hereto and the Master Lease attached as Exhibit B
hereto are true, correct and complete copies of the Master Sublease and the
Master Lease, and there has been no amendment or modification of either of the
documents except as expressly set forth therein; (ii) the Sublease represents
the entire agreement of Master Sublandlord and Netscape with respect to the
sublease of the Premises, and there are no oral understandings or other
agreements with respect thereto, except as set forth in the Sublease; (iii)
there is no default on the part of either party to the Sublease, nor any
condition which, with the passage of time or the giving of notice, or both,
would constitute a default thereunder; and (iv) Netscape has made no prior or
inconsistent assignment, encumbrance or other transfer of the Sublease, or any
interest therein, or of the Premises, or any portion thereof.
9. Miscellaneous:
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(a) Notice: Any notices or other communications required, or
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permitted under this Assignment will be in writing and either served personally
or sent by prepaid, first-class mail and addressed to the other party at the
address set forth in the introductory paragraph of this Assignment. Either party
may change its address by notifying the other party of the change of address.
(b) Successors: This Assignment shall be binding on and inure to the
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benefit of the parties and their successors.
(c) Entire Agreement: This Assignment constitutes the entire
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agreement between the parties hereto and may not be modified except by an
instrument in writing signed by the party to be charged.
(d) Governing Law: This Assignment will be governed by the laws of
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the State of California.
(e) Time: The parties hereto agree that time is strictly of the
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essence with respect to each and every term, condition, obligation and provision
hereof.
(f) Waiver: No failure of any party to enforce any term of this
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Assignment shall be deemed to be a waiver of that party's right to enforce the
term.
(g) Construction: The parties agree that this Assignment will be
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construed to effectuate the normal and reasonable expectations of a
sophisticated Landlord, Netscape and assignee. No party will take actions which
would frustrate the other's reasonable expectations concerning the benefits of
this Assignment. The parties further agree that this Assignment expresses the
terms of their agreement and that it should not be interpreted in favor or
against any party.
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In Witness Whereof, the parties hereto have set their hands as of the date
and year first above written.
"ASSIGNEE" "NETSCAPE"
Cobalt Networks, Inc., Netscape Communications, Inc.
a California corporation
By: /s/ Xxxxxx X. Xxxx By: /s/ [SIGNATURE ILLEGIBLE]
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Title: Vice President of Finance & CFO Title: Director
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By:_______________________________
Title:_________________________
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CONSENT OF MASTER SUBLANDLORD
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Xxxxx Corporation, the Master Sublandlord under the Master Sublease
attached hereto as Exhibit A hereby consents to the Assignment attached hereto,
and all of the terms and conditions contained therein, including Netscape's
release from any liability under the Master Sublease. This Consent applies only
to this Assignment and shall not be deemed to be a consent to any other
Assignment.
XXXXX CORPORATION
a_________________________________
By:_______________________________
Title:____________________________
Date:_____________________________
CONSENT OF MASTER LANDLORD
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Renault & Xxxxxxx Solar Xxxxx Joint Venture, the Master Landlord under the
Master Lease attached hereto as Exhibit B hereby consents to the Assignment
attached hereto, and all of the terms and conditions contained therein,
including Netscape's release from any liability under the Master Sublease. This
Consent applies only to this Assignment and shall not be deemed to be a consent
to any other Assignment.
RENAULT & XXXXXXX JOINT VENTURE
a_________________________________
By:_______________________________
Title:____________________________
Date:_____________________________
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