Exhibit 10.18
SUBLEASE AGREEMENT
This Sublease Agreement ("Sublease") dated for reference purposes only,
September 17, 1997, by and between McAFEE ASSOCIATES, INC., a Delaware
corporation, with its principal offices at 0000 Xxxxxx Xxxxxx, Xxxxx Xxxxx,
Xxxxxxxxxx 00000 ("SUBLANDLORD"), and Integrated Technology Express, Inc., a
California corporation, with its principal business offices at 0000 Xxxxx
Xxxxxx, Xxxxx Xxxxx, Xxxxxxxxxx 00000 ("SUBTENANT").
RECITALS
A. Whereas, Xxxx Xxxxxxxxx Trustee or his Successor Trustee, UTA dated
7/20/77 (Arrillaga Family Trust) as amended, and Xxxxxxx X. Xxxxx,
Trustee, or his Successor Trustee UTA dated 7/20/77 (Xxxxxxx X. Xxxxx
Separate Property Trust) as amended, hereinafter called "MASTER
LANDLORD", and SUBLANDLORD have entered into that certain Lease
Agreement dated May 10, 1993, as amended by AMENDMENT NO. 1 TO LEASE
dated September 27, 1995, hereinafter ("Master Lease"), a copy of which
is attached hereto as EXHIBIT A, pursuant to which SUBLANDLORD, as
Tenant, has leased from MASTER LANDLORD, as Landlord, the building
("Building") and other real property ("Property") located at 0000 Xxxxx
Xxxxxx, Xxxxx 000 ("Xxxxxxxx"), Xxxxx Xxxxx, Xxxxxxxxxx.
B. Whereas the Lease Agreement dated May 10, 1993 was amended by that
certain AMENDMENT NO 1 TO LEASE dated September 27, 1995, which among
other terms and conditions extended the term of said Lease Agreement
and increased the Leased Premises to include Suite 100 (21,636 square
feet), and Suite 300 (9,798 square feet) for a total of 100% of the
Building (45,000 square feet).
C. Whereas, SUBLANDLORD desires to lease to SUBTENANT a portion of said
Premises (Suite 100) leased by MASTER LANDLORD to SUBLANDLORD, and
SUBTENANT desires to lease a portion of said Premises (Suite 100) from
SUBLANDLORD, and agrees to execute MASTER LANDLORD'S Standard Consent
to Sublease Agreement.
D. Whereas, MASTER LANDLORD desires to consent to this Sublease by
executing its standard Consent to Sublease agreement (by all of the
Parties hereto), whereby MASTER LANDLORD approves, agrees and
acknowledges said Sublease Agreement between SUBTENANT and SUBLANDLORD
according to the terms and conditions set forth herein, and as
contained in said Consent to Sublease Agreement.
Therefore, SUBLANDLORD and SUBTENANT agree as follows:
1. PREMISES. Subject to the terms, conditions, and covenants set forth in
this Sublease, SUBLANDLORD hereby leases to SUBTENANT and SUBTENANT
hereby leases from SUBLANDLORD, approximately 21,636 sq.ft. in the
Building commonly known as 0000 Xxxxx Xxxxxx, Xxxxx 000, Xxxxx Xxxxx,
XX ("Premises"). The entire Building, of which the Premises is a part,
is shown as outlined in yellow on EXHIBIT B, attached which by this
reference is incorporated herein.
2. TERM. The term of this Sublease shall be for a period of thirty-nine
(39) months commencing on October 1, 1997 ("Commencement Date"), with
Basic Rent due and payable upon the Commencement Date.
The Sublease will expire on December 31, 2000, unless sooner terminated
pursuant to any provision hereof, or by breach of the terms and
conditions of this Sublease.
If for any reason, except as provided for below, SUBLANDLORD has not
delivered possession of the Premises to SUBTENANT by October 1, 1997,
this Sublease shall not be void or voidable, nor shall SUBLANDLORD be
liable to SUBTENANT for any loss or damage resulting therefrom but in
such event SUBTENANT shall not be obligated to pay rent until the date
that SUBLANDLORD delivers possession of the Premises and the
Commencement Date of this Sublease shall be revised to conform to such
date. Notwithstanding the foregoing sentence, SUBLANDLORD shall not be
responsible for any delays whatsoever caused by or due to the fault of
MASTER LANDLORD, or any such delays which may be caused by, due to, or
occur in connection with obtaining MASTER LANDLORD'S consent to this
Sublease.
Notwithstanding the preceding paragraph, if either possession of the
Premises or MASTER LANDLORD'S written consent to this Sublease has not
been delivered to SUBTENANT by November 1, 1997, then either party may,
in its sole and absolute discretion, terminate this Sublease by written
notice to the other Party which shall be given on or before
1
November 10, 1997 and upon such termination, SUBLANDLORD shall promptly
return all prepaid rent and Security Deposits to SUBTENANT.
3. BASIC RENT. SUBTENANT shall pay to SUBLANDLORD all Basic Rent for the
Premises according to the following schedule:
Months Basic Monthly Rental
------ --------------------
October 1, 1997 - December 31, 1997 $23,799.60
January 1, 1998 - April 30, 1998 $24,881.40
May 1, 1998 - December 31, 1998 $32,454.00
January 1, 1999 - December 31, 1999 $32,454.00
January 1, 2000 - December 31, 2000 $33,535.80
All such Basic Rent shall be payable in advance on the first day of
each calendar month during the Term. SUBTENANT shall deposit with
SUBLANDLORD upon execution of this Sublease the sum of Twenty Three
Thousand Seven Hundred Ninety Nine and 60/100 Dollars ($23,799.60) as
Basic Rent for the first month that Basic Rent is due under this
Sublease, namely October 1, 1997 through October 31, 1997. In addition
to said Basic Rent, SUBTENANT shall pay its share of all charges, costs
and expense obligations defined as Additional Rent as set forth in
Paragraph 4D, 44, and 46 of said MASTER LEASE, excluding any penalties,
interest, damages, costs or expenses resulting from a default of
SUBLANDLORD. All Basic and Additional Rent ("Rent") shall be paid to
SUBLANDLORD at its address indicated above, or at any other place
designated by SUBLANDLORD. Rent shall be payable without notice or
demand and without any deduction, offset, or abatement, except that
Rent shall xxxxx for any portion of the Premises for which Rent abates
under the Master Lease. Rent payable for any portion of a calendar
month shall be a pro rata portion of the installment payable for a full
calendar month.
4. SECURITY DEPOSIT. Concurrently with SUBTENANT'S execution of this
Sublease, SUBTENANT shall deposit with SUBLANDLORD the sum of One
Hundred Thousand and 00/100 Dollars ($100,000.00). Said sum shall be
held by SUBLANDLORD as a Security Deposit for the faithful performance
by SUBTENANT of all the terms, covenants and conditions of this
Sublease to be kept and performed by SUBTENANT during the term hereof.
If SUBTENANT defaults with respect to any provision of this Sublease,
including, but not limited to, the provisions relating to the payment
of Rent and any of the monetary sums due herewith, SUBLANDLORD may (but
shall not be required to) use, apply or retain all or any part of this
Security Deposit for the payment of any other amount which SUBLANDLORD
may spend by reason of SUBTENANT'S default or to compensate SUBLANDLORD
for any other loss or damage which SUBLANDLORD may suffer by reason of
SUBTENANT'S default. If any portion of said Deposit is so used or
applied, SUBTENANT shall, within ten (10) days after written demand
therefor, deposit cash with SUBLANDLORD in that amount sufficient to
restore the Security Deposit to its original amount. SUBTENANT'S
failure to do so shall be a material breach of this Sublease.
SUBLANDLORD shall not be required to keep this Security Deposit
separate from its general funds, and SUBTENANT shall not be entitled to
interest on such Deposit. If SUBTENANT fully and faithfully performs
every provision of this Sublease to be performed by it, the Security
Deposit or any balance thereof shall be returned to SUBTENANT (or at
SUBLANDLORD's option, to the last assignee of SUBTENANT'S interest
hereunder) at the expiration of the Sublease term and after SUBTENANT
has vacated the Premises. In the event of termination of SUBLANDLORD's
interest in this Sublease, SUBLANDLORD shall transfer said Deposit to
SUBLANDLORD's successor in interest whereupon SUBTENANT agrees to
release SUBLANDLORD from liability for the return of such Deposit or
the accounting therefore.
In the event that SUBTENANT complies with the all terms and conditions
of this Sublease and pays Rent and Additional Rent to SUBLANDLORD when
due throughout the initial 12 months of the Sublease Term SUBLANDLORD
agrees to return one-half of the Security Deposit equal to the sum of
Fifty Thousand Dollars ($50,000.00), provided that, SUBTENANT is not
then currently in default with any provision of this Sublease. The
remaining balance of the Security Deposit shall then be Fifty Thousand
and 00/100 Dollars ($50,000.00).
5. USE. SUBTENANT shall use the Premises only for general offices,
research and development, storage and for no other purposes. SUBTENANT
shall not permit the Premises or any part thereof to be used for any
purpose or use in violation of any law or ordinance, or of the
regulation of any governmental authority, or in any manner that will
constitute a nuisance. SUBTENANT shall not allow any use in violation
of any existing restriction on the Premises. SUBTENANT shall conform
its use of the Premises in every respect to all laws, statutes,
ordinances, and regulations now enforced or hereafter enacted affecting
the use of occupancy of the Premises.
2
6. ACCEPTANCE OF PREMISES. SUBTENANT acknowledges that the Premises
contain certain existing tenant improvements with which SUBTENANT is
familiar. SUBTENANT agrees that its act of taking possession of the
Premises will constitute its acknowledgment and acceptance that the
Premises are in rentable and good condition, and that SUBLANDLORD makes
no representation or warranty of any kind whatsoever as to the
condition or repair of the Premises. Except as provided for in Section
6.1 below, SUBTENANT acknowledges and hereby agrees that SUBTENANT is
Subleasing the Subject Premises strictly on an "as is" basis, and that
SUBLANDLORD makes no representation or warranty relating to the
suitability of the Premises for SUBTENANT'S intended use, or whether
said Premises are in compliance with all applicable building codes,
governmental laws, statutes, ordinances and regulations (e.g. ADA and
Title 24 statutes and laws).
6.1 SUBLANDLORD shall professionally clean the carpet and VCT
areas, paint all interior walls, repair damaged walls, clean
windows (interior and exterior), and deliver the Premises to
SUBTENANT with all building utility systems in good working
condition.
7. INCORPORATION OF MASTER LEASE, ASSUMPTION, TERMINATION OF MASTER LEASE.
7.1 This Sublease is expressly subject and subordinate to the
terms and conditions of "The Master Lease" attached hereto as
Exhibit A. Subject and except for paragraphs 2, 4A., 4F., 39,
40, 41, and 49 of the Master Lease, and all provisions
contained in AMENDMENT NO. 1 TO LEASE (except for paragraphs 1
and 2 of AMENDMENT NO. 1) as they apply to this Sublease, or
as otherwise provided herein, all terms and conditions of the
Master Lease are incorporated herein and are deemed a part of
this Sublease. Subject to Section 9 herein, references to
Landlord and Tenant in the Master Lease shall, for purposes of
this Sublease, be deemed to refer to both MASTER LANDLORD and
SUBLANDLORD, and SUBTENANT, respectively, and reference to the
Premises shall refer to the Sublet Premises.
7.2 Except as otherwise provided herein, SUBTENANT hereby
expressly assumes and agrees to perform and comply with all
obligations required to be kept or performed by SUBLANDLORD
pursuant to the provisions of the Master Lease with respect to
the Premises. SUBTENANT shall not commit or permit to be
committed on the Premises any act or omission which shall
violate any term or condition of the Master Lease. SUBTENANT
agrees to indemnify, defend, hold harmless SUBLANDLORD from
any and all claims, damages, costs, and expenses (including
reasonable attorney's fees) with respect to SUBTENANT'S
non performance or non observance of any such term and
condition.
7.3 If the Master Lease is terminated, this Sublease shall
terminate simultaneously and the SUBLANDLORD and SUBTENANT
shall thereafter be released from all obligations under this
Sublease accruing thereafter (except that SUBTENANT shall have
all of its rights and remedies against SUBLANDLORD if the
Master Lease is terminated as a result of a default by
SUBLANDLORD thereunder, and SUBLANDLORD shall refund to
SUBTENANT any unreturned Rent paid in advance, except as
otherwise provided in this Sublease).
7.4 If MASTER LANDLORD and SUBLANDLORD jointly and voluntarily
elect, for any reason whatsoever, to terminate the Master
Lease prior to the scheduled Master Lease termination date,
then this Sublease (if then still in effect) shall terminate
concurrently with the termination of the Master Lease.
SUBTENANT expressly acknowledges and agrees that (1) the
voluntary termination of the Master Lease by MASTER LANDLORD
and SUBLANDLORD and the resulting termination of this Sublease
shall not give SUBTENANT any right or power to make any legal
or equitable claim against MASTER LANDLORD, including without
limitation any claim for interference with contract or
interference with prospective economic advantage, and (2)
SUBTENANT hereby waives any and all rights it may have under
law or at equity against MASTER LANDLORD to challenge such an
early termination of the Sublease, and unconditionally
releases and relieves MASTER LANDLORD, and its officers,
directors, employees and agents, from any and all claims,
demands, and/or causes of action whatsoever (collectively,
"Claims"), whether such matters are known or unknown, latent
or apparent, suspected or unsuspected, foreseeable or
unforeseeable, which SUBTENANT may have arising out of or in
connection with any such early termination of this Sublease.
SUBTENANT knowingly and intentionally waives any and all
protection which is or may be given by Section 1542 of the
California Civil Code provides as follows: "A general release
does not extend to claims which the creditor does not know or
suspect to exist in his favor at the time of executing the
release, which if known by him must have materially affected
his settlement with debtor."
3
The term of this Sublease is therefore subject to early
termination. SUBTENANT'S initials herebelow evidence (a)
SUBTENANT'S consideration of and agreement to this early
termination provision, (b) SUBTENANT'S acknowledgment that,
in determining the net benefits to be derived by SUBTENANT
under the terms of this Sublease, SUBTENANT has anticipated
the potential for early termination, and (c) SUBTENANT'S
agreement to the general waiver and release of Claims above.
Initials:_________ Initials:_________
SUBTENANT SUBLANDLORD
8. UTILITIES/SERVICES. Except as otherwise provided herein, SUBTENANT
shall pay as Additional Rent and in accordance with Paragraph 4D,
44, and 46 of the Master Lease, its share of all expenses for all
utilities provided to the Premises. Provided, however, SUBTENANT
shall obtain, contract for, and pay 100% of all expenses relating to
its personal electronic communications, data and telephone services,
its private security systems, trash, and janitorial services
provided to the SUBTENANT'S Premises.
9. OBLIGATIONS OF SUBLANDLORD. SUBLANDLORD agrees to maintain the
Master Lease during the Term of this Sublease, subject, however, to
any termination of the Master Lease without the fault of
SUBLANDLORD. SUBLANDLORD agrees to comply with or perform all of its
obligations under the Master Lease that SUBTENANT has not assumed
under this Sublease. Provided, however, SUBLANDLORD, does not assume
the obligations required to be kept or performed by the MASTER
LANDLORD under the Master Lease. SUBLANDLORD shall upon written
request by SUBTENANT, fully cooperate with SUBTENANT in enforcing
the Master Lease against MASTER LANDLORD, and SUBTENANT shall
reimburse SUBLANDLORD for all of SUBLANDLORD's costs associated
therewith.
10. ALTERATIONS, ADDITIONS, OR IMPROVEMENTS. SUBTENANT shall not make
any alterations, additions or improvements on or to the Premises
without first obtaining the written consent of SUBLANDLORD, which
SUBLANDLORD may withhold in its absolute and sole discretion. All
permitted alterations, additions and improvements shall be made at
the sole expense of SUBTENANT, and unless SUBTENANT is otherwise
notified in writing to remove or repair same upon expiration of the
Sublease term, (which may be a condition of any consent) said
alterations, additions, and improvements shall remain on and be
surrendered with the Premises as part thereof at the termination of
this Sublease. SUBTENANT shall keep the Premises free and clear from
all liens arising out of any work performed, materials furnished or
obligations incurred by SUBTENANT.
11. PARKING. Paragraph 47 of the Master Lease shall be modified to
provide SUBTENANT the right to the non-exclusive use of eighty (80)
parking spaces in the common parking area of the Building as set
forth in Paragraph 47 of the Master Lease.
12. HAZARDOUS MATERIALS. Notwithstanding anything contained in Paragraph
50 of the Master Lease, SUBTENANT shall not be entitled to use or
store any Hazardous Materials or Substances on or about the Subject
Premises without first obtaining the express written consent of
SUBLANDLORD, which may be given or withheld in SUBLANDLORD'S
absolute and sole discretion. Except as otherwise provided in this
Section 12, the provisions of Paragraph 50 of the Master Lease apply
to this Sublease. Provided however, that SUBLANDLORD's consent shall
not be required for normal use, in compliance with applicable
Environmental Laws of customary household and office supplies
(SUBTENANT shall first provide SUBLANDLORD with a list of said
materials use), such as mild cleaners, lubricants and copier toner.
13. BROKERS. SUBLANDLORD and SUBTENANT hereby agree, consent to and
acknowledge that Xxxxxx/Xxxxx Corporate Real Estate Services has
represented the SUBLANDLORD and Colliers Xxxxxxx International, Inc.
has represented the SUBTENANT ("Brokers") in connection with this
Sublease. SUBLANDLORD and SUBTENANT represent that no other brokers
have been retained in connection with this Sublease and agree to
indemnify, defend and hold harmless the other in connection with any
commission claims brought in connection with their respective
activities on this Sublease. SUBTENANT shall pay all commissions
payable to Brokers in connection with this Sublease in accordance
with a separate agreement between SUBTENANT and Brokers. In the
event SUBTENANT fails to pay said commission as per said separate
agreement dated September 17, 1997 SUBTENANT shall be deemed to be
in default of the terms covenants and conditions of this Sublease.
14. CONSENT OF MASTER LANDLORD. This Sublease requires the consent and
agreement of MASTER LANDLORD. SUBLANDLORD and SUBTENANT agree to
timely execute MASTER LANDLORD'S standard Consent to Sublease
Agreement form (a
4
sample copy is provided herein as EXHIBIT C), which shall be
prepared by MASTER LANDLORD, and shall set forth MASTER LANDLORD'S
acknowledgment of this Sublease. Said Consent shall apply to this
Sublease only, and shall not be deemed as MASTER LANDLORD'S consent
to any other sublease.
15. NOTICES. All notices to be given to SUBTENANT may be given in
writing, personally, or by depositing the same in the United States
mail, postage prepaid, addressed to SUBTENANT as provided for
herebelow. Any notice or document required or permitted by this
Sublease to be given MASTER LANDLORD or SUBLANDLORD shall be
addressed to MASTER LANDLORD or SUBLANDLORD at the addresses set
forth below, or at such other address as it may have therefore
specified by notice delivered in accordance herewith, and shall be
deemed delivered upon actual receipt or refusal of delivery:
MASTER LANDLORD: Xxxxx/Xxxxxxxxx
0000 Xxxxxxx Xxxxxxx Xxxx., Xxxxx 000
Xxxxx Xxxxx, XX 00000
SUBLANDLORD: McAfee Associates
0000 Xxxxxx Xxxxxx
Xxxxx Xxxxx, XX 00000-0000
Attn: Xxxx Xxxxxxx
SUBTENANT: Integrated Technology Express, Inc.
0000 Xxxxx Xxxxxx
Xxxxx Xxxxx, XX 00000
IN WITNESS WHEREOF, the parties have executed this Sublease on the date
indicated below.
INTEGRATED TECHNOLOGY EXPRESS, INC., a California corporation
("SUBTENANT")
By: /s/ [ILLEGIBLE]
------------------------------------
Title: Sr. Vice President
---------------------------------
Date: 9/18/97
----------------------------------
McAFEE ASSOCIATES, INC., a Delaware corporation
("SUBLANDLORD")
By: /s/ [ILLEGIBLE]
------------------------------------
Title: CFO
---------------------------------
Date: 9/25/97
----------------------------------
5
EXHIBIT B TO "CONSENT TO SUBLEASE"
SUMMARY OF AMOUNTS/CONSIDERATION TO BE PAID BY SUBTENANT
PERIOD * BASIC RENT R.E. TAXES PROP.INS. UTILITIES
BY MONTH TOTAL PSF TOTAL PSF TOTAL PSF TOTAL PSF
=============== = ======= = ======= = ======= = ======= = ======= = ======= = ======= = =======
10/1/97 - 12/31/97 23,799.60 /// 1.10 /// /// ///
----------------------------------------------------------------------------------------------------------------------------------
1/1/98 - 4/30/98 24,881.40 /// 1.15 /// /// ///
----------------------------------------------------------------------------------------------------------------------------------
5/1/98 - 12/31/98 32,454.60 /// 1.50 /// /// ///
----------------------------------------------------------------------------------------------------------------------------------
1/1/99 - 12/31/99 32,454.00 /// 1.50 /// /// ///
----------------------------------------------------------------------------------------------------------------------------------
1/1/00 - 12/31/00 33,535.80 /// 1.55 /// /// ///
----------------------------------------------------------------------------------------------------------------------------------
/// /// /// ///
----------------------------------------------------------------------------------------------------------------------------------
/// /// /// ///
----------------------------------------------------------------------------------------------------------------------------------
PERIOD * LANDSCAPE MISCELLANEOUS MISCELLANEOUS TOTAL CHARGE PER PERIOD
BY MONTH TOTAL PSF TOTAL PSF TOTAL PSF TOTAL PSF
=============== = ======= = ======= = ======= = ======= = ======= = ======= = ======= = =======
10/1/97 - 12/31/97 /// /// /// $ 71,398.50 /// $1.10
---------------------------------------------------------------------------------------------------------------------------------
1/1/98 - 4/30/98 /// /// /// 99,525.60 /// 1.15
---------------------------------------------------------------------------------------------------------------------------------
5/1/98 - 12/31/98 /// /// /// 259,632.00 /// 1.50
---------------------------------------------------------------------------------------------------------------------------------
1/1/99 - 12/31/99 /// /// /// 389,448.00 /// 1.50
---------------------------------------------------------------------------------------------------------------------------------
1/1/00 - 12/31/00 /// /// /// 402,429.60 /// 1.55
---------------------------------------------------------------------------------------------------------------------------------
/// /// /// ///
---------------------------------------------------------------------------------------------------------------------------------
/// /// /// ///
---------------------------------------------------------------------------------------------------------------------------------
* Subject to Commencement of 10/1/97
IF ADDITIONAL SPACE IS NEEDED. PLEASE DUPLICATE AND ATTACH
* IF PAYMENTS ARE REQUIRED OTHER THAN MONTHLY, PLEASE INCLUDE THESE
PAYMENTS AS WELL.
** IF SUBLEASE RENT PAID INCLUDES MISCELLANEOUS EXPENSES. PLEASE IDENTIFY
THE $ AMOUNT/PSF OF THE TOTAL RENT PAYMENT ALLOCATED TO BASIC RENT AND
EACH ADDITIONAL EXPENSE ITEM.
IS ANY ADDITIONAL CONSIDERATION (MONETARY AND/OR SERVICES) DUE UNDER THE
SUBLEASE?: YES NO X
----- -----
IF "YES", IDENTIFY TYPE CONSIDERATION AND DOLLAR VALUE ASSIGNED TO SAID
CONSIDERATION:
Type: Value: $
--------------------------- ----------------------
Type: Value: $
--------------------------- ----------------------
Type: Value: $
--------------------------- ----------------------
Type: Value: $
--------------------------- ----------------------
IF ADDITIONAL SPACE IS NEEDED, PLEASE DUPLICATE AND ATTACH
TENANT: SUBTENANT
MCCAFEE ASSOCIATES INTEGRATED TECHNOLOGY EXPRESS, INC.
By: /s/ [ILLEGIBLE] By: /s/ XXXXXX XXXX
------------------------ --------------------------
Printed: [ILLEGIBLE] By: XXXXXX XXXX
------------------- --------------------------
Title: CFO Title: CEO
--------------------- -----------------------
Xxxxx 2
AMENDMENT NO. 1
TO LEASE
THIS AMENDMENT NO. 1 is made and entered into this 27th day of
September, 1995, by and between XXXX XXXXXXXXX, Trustee, or his Successor
Trustee UTA dated 7/20/77 (ARRILLAGA FAMILY TRUST) as amended (previously known
as the "Xxxx Xxxxxxxxx Separate Property Trust"), and XXXXXXX X. XXXXX, Trustee,
or his Successor Trustee UTA dated 7/20/77 (XXXXXXX X. XXXXX SEPARATE PROPERTY
TRUST) as amended, collectively as LANDLORD, and McAfee Associates, a Delaware
corporation, as TENANT.
RECITALS
A. WHEREAS, by Lease Agreement dated May 10, 1993 Landlord leased to
Tenant approximately 13,566+/- square feet of that certain 45,000+/- square foot
building located at 0000 Xxxxx Xxxxxx, Xxxxx 000, Xxxxx Xxxxx, Xxxxxxxxxx, the
details of which are more particularly set forth in said May 10, 1993 Lease
Agreement, and
B. WHEREAS, said Lease was amended by the Commencement Letter dated
July 7, 1993 which confirmed (i) the Lease Commencement Date of July 1, 1993,
and (ii) the Termination Date of June 30, 1996, and,
C. WHEREAS, it is now the desire of the parties hereto to amend the
Lease by: (i) extending the Term for four (4) years and six (6) months; (ii)
increasing the square footage of the Leased Premises by 21,636+/- square feet
effective January 1, 1996; (iii) increasing the square footage of the Leased
Premises by 9,798+/- square feet to 45,000+/- square feet (100% of the building)
effective August 1, 1996; (iv) amending the Basic Rent schedule and Aggregate
Rent accordingly; (v) increasing the Security Deposit due under the Lease; and
(vi) adding an "Option to Extend" paragraph to said Lease Agreement as
hereinafter set forth.
AGREEMENT
NOW THEREFORE, for valuable consideration, receipt of which is hereby
acknowledged, and in consideration of the hereinafter mutual promises, the
parties hereto do agree as follows:
1. TERM OF LEASE: It is agreed between the parties that the Term of
said Lease Agreement shall be extended for an additional four (4) year six (6)
month period, and the Lease Termination Date shall be changed from June 30, 1996
to December 31, 2000.
2. INCREASED PREMISES: Effective January 1, 1996, the size of the
Leased Premises will be increased by 21,636+/- square feet, or from 13,566+/-
square feet to 35,202+/- square feet of space. Total said Premises are more
particularly shown within the area outlined in Red on EXHIBIT A. The entire
parcel, of which the Leased Premises is a part, is shown within the area
outlined in Green on EXHIBIT A. Subject to Lease Paragraph 45, the additional
21,636+/- square feet of space is leased on an "as-is" basis, in its present
condition and configuration, as set forth in Blue on EXHIBIT B attached hereto,
with the entire interior leased Premises shown in Red on EXHIBIT B. It is
specifically agreed between the parties that Landlord shall not be required to
make, nor be responsible for any cost, in connection with any repair,
restoration, maintenance and/or improvement to the Increased Premises throughout
the Term of this Lease. Landlord makes no warranty or representation of any kind
or nature whatsoever as to the condition or repair of the Increased Premises,
nor as to the use or occupancy which may be made thereof.
Effective August 1, 1996, the size of the Leased Premises will be
increased by 9,798+/- square feet, or from 35,202+/- square feet to 45,000+/-
square feet of space, representing 100% of the building. Total said Premises are
more particularly shown within the area outlined in Red on EXHIBIT C. The entire
parcel, of which the Leased Premises is a part, is shown within the area
outlined in Green on EXHIBIT C. Subject to Lease Paragraph 45, the additional
9,798+/- square feet of space is leased on an "as-is" basis, in its present
condition and configuration, as set forth in Blue on EXHIBIT D attached hereto,
with the entire interior leased Premises shown in Red on EXHIBIT D. It is
specifically agreed
Page 1
Xxxxx 2
between the parties that Landlord shall not be required to make, nor be
responsible for any cost, in connection with any repair, restoration,
maintenance and/or improvement to the Increased Premises throughout the Term of
this Lease. Landlord makes no warranty or representation of any kind or nature
whatsoever as to the condition or repair of the Increased Premises, nor as to
the use or occupancy which may be made thereof.
3. BASIC RENT SCHEDULE: The monthly Basic Rental shall be adjusted as
follows: (INTENTIONALLY DELETED)
4. SECURITY DEPOSIT: Tenant's Security Deposit shall be increased by $
(INTENTIONALLY DELETED)
5. PARKING: Effective January 1, 1996, Tenant's nonexclusive parking
spaces shall be increased by 85 spaces or from 53 spaces to 138 spaces.
Effective August 1, 1996, Tenant shall lease 100% of the Building from Landlord,
and shall be entitled to one hundred percent (100%) of the parking appurtenant
to the Leased Premises as shown on EXHIBITS A AND C. Effective August 1, 1996,
Lease Paragraph 47 ("PARKING") shall be deleted in its entirety.
6. DELETE NON APPLICABLE PARAGRAPHS: Effective August 1, 1996, Tenant
shall lease 100% of the Building from Landlord and the following Lease
Paragraphs referring to Common Areas shall no longer be applicable and shall be
deleted in their entirety. Any cross reference to said deleted Paragraphs in
other Paragraphs within the Lease shall thereafter be considered null and void:
Paragraph 43 ("RULES AND REGULATIONS AND COMMON AREA") and Paragraph 44
("EXPENSES OF OPERATION, MANAGEMENT, AND MAINTENANCE OF THE COMMON AREAS OF THE
PARCEL AND BUILDING IN WHICH THE PREMISES ARE LOCATED").
Page 2
Xxxxx 2
7. REPLACEMENT OF PARAGRAPHS: Effective August 1, 1996, the following
Paragraphs shall be replaced:
A. UTILITIES. Effective August 1, 1996, Paragraph 46
("UTILITIES OF THE BUILDING IN WHICH THE PREMISES ARE LOCATED") shall be
deleted in its entirety and shall be replaced with the following:
"46. UTILITIES: Tenant shall pay promptly, as the same become
due, all charges for water, gas electricity, telephone, telex
and other electronic communications service, sewer service,
waste pick-up and any other utilities, materials or services
furnished directly to or used by Tenant on or about the
Premises during the Term of this Lease, including, without
limitation, any temporary or permanent utility surcharge or
other exactions whether or not hereinafter imposed.
Landlord shall not be liable for and Tenant shall not be
entitled to any abatement or reduction of Rent by reason of
any interruption or failure of utility services to the
Premises when such interruption or failure is caused by
accident, breakage, repair, strikes, lockouts, or other labor
disturbances or labor disputes of any nature, or by any other
cause, similar or dissimilar, beyond the reasonable control of
Landlord."
B. TENANT MAINTENANCE. Effective August 1, 1996, Paragraph 7 ("TENANT
MAINTENANCE") shall be deleted in its entirety and shall be replaced with the
following:
"7. TENANT MAINTENANCE: Subject to Lease Paragraph 45
("MAINTENANCE OF THE PREMISES"), Tenant shall, at its sole cost
and expense, keep and maintain the Premises (including
appurtenances) and every part thereof in a high standard of
maintenance and repair, or replacement, and in good and
sanitary condition. Tenant's maintenance and repair
responsibilities herein referred to include, but are not
limited to, janitorization, all windows (interior and
exterior), window frames, plate glass and glazing (destroyed by
accident or act of third parties), truck doors, plumbing
systems (such as water and drain lines, sinks, toilets,
faucets, drains, showers and water fountains), electrical
systems (such as panels, conduits, outlets, lighting fixtures,
lamps, bulbs, tubes and ballasts), heating and airconditioning
systems (such as compressors, fans, air handlers, ducts, mixing
boxes, thermostats, time clocks, boilers, heaters, supply and
return grills), exterior surfaces of the Building, store
fronts, roofs, downspouts, all interior improvements within the
Premises including but not limited to wall coverings, window
coverings, carpet, floor coverings, partitioning, ceilings,
doors (both interior and exterior), including closing
mechanisms, latches, locks, skylights (if any), automatic fire
extinguishing systems, and elevators and all other interior
improvements of any nature whatsoever, and all exterior
improvements including but not limited to landscaping,
sidewalks, driveways, parking lots including striping and
sealing, sprinkler systems, lighting, ponds, fountains,
waterways, and drains. Tenant agrees to provide carpet xxxxxxx
under all rolling chairs or to otherwise be responsible for
wear and tear of the carpet caused by such rolling chairs if
such wear and tear exceeds that caused by normal foot traffic
in surrounding areas. Areas of excessive wear shall be replaced
at Tenant's sole expense upon Lease termination. Tenant hereby
waives all rights under, and benefits of, Subsection I of
Section 1932 and Section 1941 and 1942 of the California Civil
Code and under any similar law, statute or ordinance now or
hereafter in effect. In the event any of the above maintenance
responsibilities apply to any other tenant(s) of Landlord where
there is common usage with other tenant(s), such maintenance
responsibilities and charges shall be allocated to the Leased
Premises by square footage or other equitable basis as
calculated and determined by Landlord."
Page 3
Xxxxx 2
8. ALTERATIONS MADE BY TENANT: The provisions of this Paragraph 8 shall
modify Lease Paragraphs 5 and 6, as follows:
Landlord acknowledges that Tenant shall have the right, subject to the
terms of this Paragraph 8, to make non-structural, minor interior improvements
("Interior Improvements") to the Increased Premises subject to the following:
A. Tenant shall provide Landlord, for Landlord's approval, a set of
construction plans and a list reflecting the Interior Improvements Tenant
desires to make to the Increased Premises no later than February 1, 1996. Upon
Landlord's approval of said Interior Improvements, said construction plans shall
become EXHIBIT E to this Amendment;
B. Landlord shall not be required, under any circumstance, to
contribute any concessions or monetary contribution to said Interior
Improvements;
C. It is understood that, pursuant to Paragraph 9 below, Tenant will
not complete all of the Interior Improvements shown on EXHIBIT E until such time
as Tenant's existing subtenant vacates the Premises;
D. Within thirty (30) days of Tenant's intent to commence construction
of any portion of said Interior Improvements shown on EXHIBIT E, Tenant shall
provide Landlord, for Landlord's approval, a floor plan showing the particular
Interior Improvements Tenant desires to construct at Tenant's sole cost and
expense. Construction of said Interior Improvements shall not commence until
Landlord and Tenant execute Landlord's standard Consent to Alterations
agreement and Landlord has posted its Notice of Non-Responsibility;
E. Tenant shall not be required to remove the Landlord approved
Interior Improvements shown on EXHIBIT E at the expiration or earlier
termination of the Lease Term.
9. SUBLEASE: Tenant has advised Landlord that Tenant intends to
sublease a portion of the Increased Premises to Digital Video Systems and
Landlord has agreed to issue a consent to said sublease subject to Tenant
submitting to Landlord a copy of said sublease (prior to said sublease
commencing), and Landlord, Tenant and Digital Video Systems thereafter executing
Landlord's standard Consent to Sublease agreement prior to said sublease
commencing.
10. OPTION TO EXTEND LEASE FOR THREE (3) YEARS: Lease Paragraph 49
("Option to Extend Lease for Three (3) Years") shall be deleted in its entirety,
and shall be of no further force or effect.
11. OPTION TO EXTEND LEASE FOR FIVE (5) YEARS: Provided Tenant is not
in default (pursuant to Paragraph 19 of the Lease, I.E., Tenant has received
notice and any applicable cure period has expired without cure) of any of the
terms, covenants, and conditions of this Lease Agreement, Landlord hereby grants
to Tenant an Option to Extend this Lease Agreement for an additional five (5)
year period (the "Extended Term") upon the following terms and conditions:
(INTENTIONALLY DELETED)
Xxxxx 2
C. The option rights of Tenant under this Paragraph 11, and the
Extended Term thereunder, are granted for Tenant's personal benefit and may not
be assigned or transferred by Tenant, except to a parent or subsidiary
corporation, or corporation with which Tenant merges or consolidates or to whom
Tenant sells all or substantially all of its assets as provided for in Lease
Paragraph 48, either voluntarily or by operation of law, in any manner
whatsoever. In the event that Landlord consents to a sublease or assignment
under Lease Paragraph 16 (except for the permitted sublease as provided for in
Paragraph 9 above), the option granted herein and any Extended Term thereunder
shall be void and of no force and effect, whether or not Tenant shall have
purported to exercise such option prior to such assignment or sublease.
D. INCREASED SECURITY DEPOSIT: In the event the Term of Tenant's Lease
is
(INTENTIONALLY DELETED)
EXCEPT AS MODIFIED HEREIN, all other terms, covenants, and conditions
of said May 10, 1993 Lease Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Amendment
No. 1 to Lease as of the day and year last written below.
LANDLORD: TENANT:
ARRILLAGA FAMILY TRUST MCAFEE ASSOCIATES
a Delaware corporation
By /s/ Xxxx Xxxxxxxxx By /s/ [ILLEGIBLE]
----------------------------- -----------------------
Xxxx Xxxxxxxxx, Trustee [ILLEGIBLE]
-----------------------
Print or Type Name
XXXXXXX X. XXXXX SEPARATE Title: CAO
PROPERTY TRUST --------------------
By /s/ Xxxxxxx X. Xxxxx Date: 11/17/95
----------------------------- --------------------
Xxxxxxx X. Xxxxx, Trustee
Date: 11/28/95
--------------------------
Page 5
OWNER [ILLEGIBLE]
PROP #372
UNIT #2
TENANT #
LEASE AGREEMENT
THIS LEASE, made this 10th day of May, 1993 between XXXX XXXXXXXXX, Trustee,
or his Successor Trustee, UTA dated 7/20/77 (XXXX XXXXXXXXX SEPARATE PROPERTY
TRUST) as amended, and XXXXXXX X. XXXXX, Trustee, or his Successor Trustee,
UTA dated 7/20/77 (XXXXXXX X. XXXXX SEPARATE PROPERTY TRUST) as amended,
hereinafter called Landlord and MCAFEE ASSOCIATES, a Delaware Corporation,
hereinafter called Tenant.
WITNESSETH:
Landlord hereby leases to Tenant and Tenant hereby hires and takes from
Landlord those certain premises (the "Premises") outlined in red on Exhibit "A",
attached hereto and incorporated herein by this reference thereto more
particularly described as follows:
A portion of that certain 45,000+/- square foot, two-story
building located at 0000 Xxxxx Xxxxxx, Xxxxx 000, Xxxxx
Xxxxx, Xxxxxxxxxx, 00000, consisting of approximately
13,566+/- square feet of space on the 2nd floor of the
building, and known as Suite 200. Said Premises is more
particularly shown within the area outlined in Red on
EXHIBIT A. The entire parcel, of which the Premises is a
part, is shown within the area outlined in Green on
EXHIBIT A attached hereto. The Premises is leased on an
"as-is" basis, in its present condition, and in the
configuration as shown in Red on EXHIBIT B attached
hereto.
The word "Premises" as used throughout this lease is hereby defined to
include the nonexclusive use of sidewalks and driveways in front of or adjacent
to the Premises, and the nonexclusive use of the area directly underneath or
over such sidewalks and driveways. The leased area of the Premises shall be
measured from outside of exterior walls to outside of exterior walls, and shall
include any atriums, covered entrances or egresses and covered loading areas.
Said letting and hiring is upon and subject to the terms, covenants and
conditions hereinafter set forth and Tenant covenants as a material part of the
consideration for this Lease to perform and observe each and all of said terms,
covenants and conditions. This Lease is made upon the conditions of such
performance and observance.
1. USE Tenant shall use the Premises only in conformance with applicable
governmental laws, regulations, rules and ordinances for the purpose of
general office, light manufacturing, research and development, and storage
and other uses necessary for Tenant to conduct Tenant's business in
accordance with all applicable governmental laws and ordinances, and for no
other purpose. Tenant shall not do or permit to be done in or about the
Premises nor bring or keep or permit to be brought or kept in or about the
Premises anything which is prohibited by or will in any way increase the
existing rate of (or otherwise affect) fire or any insurance covering the
Premises or any part thereof, or any of its contents, or will cause a
cancellation of any insurance covering the Premises or any part thereof, or
any of its contents. Tenant shall not do or permit to be done anything in, on
or about the Premises which will in any way obstruct or interfere with the
rights of other tenants or occupants of the neighboring premises or injure or
annoy them, or use or allow the Premises to be used for any improper,
immoral, unlawful or objectionable purpose, nor shall Tenant cause, maintain
or permit any nuisance in, on or about the Premises. No sale by auction shall
be permitted on the Premises. Tenant shall not place any loads upon the
floors, walls, or ceiling which endanger the structure, or place any harmful
fluids or other materials in the drainage system of the building, or overload
existing electrical or other mechanical systems. No waste materials or refuse
shall be dumped upon or permitted to remain upon any part of the Premises or
outside of the building in which the Premises are a part, except in trash
containers placed inside exterior enclosures designated by Landlord for that
purpose or inside of the building proper where designated by Landlord. No
materials, supplies, equipment, finished products or semi-finished products,
raw materials or articles of any nature shall be stored upon or permitted to
remain outside the Premises. Tenant shall not place anything or allow
anything to be placed near the glass of any window, door partition or wall
which may appear unsightly from outside the Premises. No loudspeaker or other
device, system or apparatus which can be heard outside the Premises shall be
used in or at the Premises without the prior written consent of Landlord.
Tenant shall not commit or suffer to be committed any waste in or upon the
Premises. Tenant shall indemnity, defend and hold Landlord harmless against
any loss, expense, damage, reasonable attorneys' fees, or liability arising
out of failure of Tenant to comply with any applicable law. Tenant shall
comply with any covenant, condition, or restriction ("CC&R's") affecting the
Premises. The provisions of this paragraph are for the benefit of Landlord
only and shall not be construed to be for the benefit of any tenant or
occupant of the Premises.
2. TERM *
A. The term of the Lease shall be for a period of THREE YEARS (3) years
(unless sooner terminated as hereinafter provided) and, subject to Paragraphs 2B
and 3, shall commence on the 1st day of July, 1993 and end on the 30th day of
June, 1996.
B. Possession of the Premises shall be deemed tendered and the term of the
Lease shall commence when the first of the following occurs:
(a) One day after a Certificate of Occupancy is granted by the proper
governmental agency, or, if the governmental agency having jurisdiction over the
area in which the Premises are situated does not issue certificates of
occupancy, then the same number of days after certification by Landlord's
architect or contractor that Landlord's construction work has been competed; or
(b) Upon the occupancy of the Premises by any of Tenant's operating
personnel; or
(c) When the Tenant Improvements have been substantially completed for
Tenant's use and occupancy, in accordance and compliance with Exhibit B of this
Lease Agreement, but in no event prior to July 1, 1993
(d) As otherwise agreed in writing.
* It is agreed in the event said Lease commences on a date other than the
projected commencement date, the term of the Lease will be extended to account
for the number of days in the partial month. The Basic Rent during the resulting
partial month will be prorated (for the number of days in the partial month) at
the Basic Rent rate scheduled for the projected commencement date as shown in
Paragraph 39.
Initials: [ILLEGIBLE]
-------------
Initials: [ILLEGIBLE]
-------------
page 1 of 8
3. POSSESSION. If Landlord, for any reason whatsoever, cannot deliver
possession of said premises to Tenant at the commencement of said term, as
hereinbefore specified, this Lease shall not be void or voidable; no
obligation of Tenant shall be affected thereby; nor shall Landlord or
Landlord's agents be liable to Tenant for any loss or damage resulting
therefrom; but in that event the commencement and termination dates of the
Lease, and all other dates affected thereby shall be revised to conform to
the date of Landlord's delivery of possession, as specified Paragraph 2B,
above. The above is, however, subject to the provision that the period of
delay of delivery of the Premises shall not exceed 60 days from the
commencement date herein (except those delays caused by Acts of God, strikes,
war, utilities, governmental bodies, weather, unavailable materials, and
delays beyond Landlord's control shall be excluded in calculating such
period) in which instance Tenant, at its option, may, by written notice to
Landlord, terminate this Lease.
4. RENT
A. BASIC RENT. Tenant agrees to pay to Landlord at such place as Landlord may
designate without deduction, offset, prior notice, or demand, and Landlord
agrees to accept as Basic Rent for the leased Premises the total sum of FOUR
HUNDRED TWENTY THOUSAND THREE HUNDRED THIRTY EIGHT AND 40/100 Dollars
($420,338.40) in lawful money of the United States of America, payable as
follows:
SEE PARAGRAPH 39 FOR BASIC RENT SCHEDULE
B. TIME FOR PAYMENT. Full monthly rent is due in advance on the first day
of each calendar month. In the event that the term of this Lease commences on a
date other than the first day of a calendar month, on the date of commencement
of the term hereof Tenant shall pay to Landlord as rent for the period from such
date of commencement to the first day of the next succeeding calendar month that
proportion of the monthly rent hereunder which the number of days between such
date of commencement and the first day of the next succeeding calendar month
bears to thirty (30). In the event that the term of this Lease for any reason
ends on a date other than the last day of a calendar month, on the first day of
the last calendar month of the term hereof Tenant shall pay to Landlord as
rent for the period from said first day of said last calendar month to and
including the last day of the term hereof that proportion of the monthly rent
hereunder which the number of days between said first day of said last calendar
month and the last day of the term hereof bears to thirty (30).
C. LATE CHARGE. Notwithstanding any other provision of this Lease, if Tenant
is in default in the payment of rental as set forth in this Paragraph 4 when
due, or any part thereof, Tenant agrees to pay Landlord, in addition to the
delinquent rental due, a late charge for each rental payment in default ten (10)
days. Said late charge shall equal ten percent (10%) of each rental payment so
in default.
D. ADDITIONAL RENT. Beginning with the commencement date of the term of this
Lease, Tenant shall pay to Landlord or to Landlord's designated agent in
addition to the Basic Rent and as Additional Rent the following:
(a) All Taxes relating to the Premises as set forth in Paragraph 9, and
(b) All insurance premiums relating to the Premises, as set forth in
Paragraph 12, and
(c) All charges, costs and expenses, which Tenant is required to pay
hereunder, together with all interest and penalties, costs and expenses
including reasonable attorneys' fees and legal expenses, that may accrue thereto
in the event of Tenant's failure to pay such amounts, and all damages,
reasonable costs and expenses which Landlord may incur by reason of default of
Tenant or failure on Tenant's part to comply with the terms of this Lease. In
the event of nonpayment by Tenant of Additional Rent, Landlord shall have all
the rights and remedies with respect thereto as Landlord has for nonpayment of
rent.
The Additional Rent due hereunder shall be paid to Landlord or Landlord's
agent (i) within five days for taxes and insurance and within thirty days for
all other additional Rent items after presentation of invoice from Landlord or
Landlord's agent setting forth such Additional Rent and/or (ii) at the option of
Landlord, Tenant shall pay to Landlord monthly, in advance, Tenant's prorata
share of an amount reasonably estimated by Landlord to be Landlord's approximate
average monthly expenditure for such Additional Rent items, which estimated
amount shall be reconciled at the end of each calendar year as compared to
Landlord's actual expenditure for said Additional Rent items, with Tenant paying
to Landlord, upon demand, any amount of actual expenses expended by Landlord in
excess of said estimated amount, or Landlord refunding to Tenant (providing
Tenant is not in default in the performance of any of the terms, covenants and
conditions of this Lease) any amount of estimated payments made by Tenant in
excess of Landlord's actual expenditures for said Additional Rent items.
The respective obligations of Landlord and Tenant under this paragraph shall
survive the expiration or other termination of the term of this Lease, and if
the term hereof shall expire or shall otherwise terminate on a day other than
the last day of a calendar year, the actual Additional Rent incurred for the
calendar year in which the term hereof expires or otherwise terminates shall be
determined and settled on the basis of the statement of actual Additional Rent
for such calendar year and shall be prorated in the proportion which the number
of days in such calendar year preceding such expiration or termination bears to
365.
E. PLACE OF PAYMENT OF RENT AND ADDITIONAL RENT. All Basic Rent
hereunder and all payments hereunder for Additional Rent shall be paid to
Landlord at the office of Landlord at XXXXX/ARRILLAGA, FILE 0000, XXX 00000,
XXX XXXXXXXXX, XX 00000 or to such other person or to such other place as
Landlord may from time to time designate in writing.
F. SECURITY DEPOSIT. Concurrently with Tenant's execution of this Lease,
Tenant shall deposit with Landlord the sum of TWENTY FIVE THOUSAND SEVEN
HUNDRED SEVENTY FIVE AND 40/100 Dollars ($25,775.40). Said sum shall be
held by Landlord as a Security Deposit for the faithful performance by Tenant
of all of the terms, covenants, and conditions of this Lease to be kept and
performed by Tenant during the term hereof. If Tenant defaults with respect
to any provision of this Lease, including, but not limited to the provisions
relating to the payment of rent and any of the monetary sums due herewith,
Landlord may (but shall not be required to) use, apply or retain all of any
part of this Security Deposit for the payment of any other amount which
Landlord may spend by reason of Tenant's default or to compensate Landlord for
Initials: [ILLEGIBLE]
-------------
Initials: [ILLEGIBLE]
-------------
page 2 of 8
any other loss or damage which Landlord may suffer by reason of Tenant's
default. If any portion of said Deposit is so used or applied, Tenant shall,
within ten (10) days after written demand therefor, deposit cash with
Landlord in the amount sufficient to restore the Security Deposit to its
original amount. Tenant's failure to do so shall be a material breach of this
Lease. Landlord shall not be required to keep this Security Deposit separate
from its general funds, and Tenant shall not be entitled to interest on such
Deposit. If Tenant fully and faithfully performs every provision of this
Lease to be performed by it, the Security Deposit or any balance thereof
shall be returned to Tenant (or at Landlord's option, to the last assignee of
Tenant's interest hereunder) at the expiration of the Lease term and after
Tenant has vacated the Premises. In the event of termination of Landlord's
interest in this Lease, Landlord shall transfer said Deposit to Landlord's
successor in interest whereupon Tenant agrees to release Landlord from
liability for the return of such Deposit or the accounting therefor.
5. ACCEPTANCE AND SURRENDER OF PREMISES By entry hereunder, Tenant accepts
the Premises as being in good and sanitary order, condition and repair and
accepts the building and improvements included in the Premises in their
present condition subject to Paragraph 41 and Exhibit B and without
representation or warranty by Landlord as to the condition of such building
or as to the use or occupancy which may be made thereof. Any exceptions to
the foregoing must be by written agreement executed by Landlord and Tenant.
Tenant agrees on the last day of the Lease term, or on the sooner termination
of this Lease, to surrender the Premises promptly and peaceably to Landlord
in good condition and repair (damage by Acts of God, fire, normal wear and
tear excepted), with all interior walls painted or cleaned so that they
appear freshly painted, and repaired and replaced, if damaged; all floors
cleaned and waxed; all carpets cleaned and shampooed; all broken, marred or
nonconforming acoustical ceiling tiles replaced; all windows washed; the
airconditioning and heating systems serviced by a reputable and licensed
service firm and in good operating condition and repair; the plumbing and
electrical systems and lighting in good order and repair, including
replacement of any burned out or broken light bulbs or ballasts; the lawn and
shrubs in good condition including the replacement of any dead or damaged
plantings; the sidewalk, driveways and parking areas in good order, condition
and repair; together with all alterations, additions, and improvements which
may have been made in, to, or on the Premises (except moveable trade fixtures
installed at the expense of Tenant) except that Tenant shall ascertain from
Landlord within thirty (30) days before the end of the term of this Lease
whether Landlord desires to have the Premises or any part or parts thereof
restored to their condition and configuration as when the Premises were
delivered to Tenant and if Landlord shall so desire, then Tenant shall
restore said Premises or such part or parts thereof before the end of this
Lease at Tenant's sole cost and expense. Tenant, on or before the end of the
term or sooner termination of this Lease, shall remove all of Tenant's
personal property and trade fixtures from the Premises, and all property not
so removed on or before the end of the term or sooner termination of this
Lease shall be deemed abandoned by Tenant and title to same shall thereupon
pass to Landlord without compensation to Tenant. Landlord may, upon
termination of this Lease, remove all moveable furniture and equipment so
abandoned by Tenant, at Tenant's sole cost, and repair any damage caused by
such removal at Tenant's sole cost. If the Premises be not surrendered at the
end of the term or sooner termination of this Lease, Tenant shall indemnify
Landlord against loss or liability resulting from the delay by Tenant in so
surrendering the Premises including, without limitation, any claims made by
any succeeding tenant founded on such delay. Nothing contained herein shall
be construed as an extension of the term hereof or as a consent of Landlord
to any holding over by Tenant. The voluntary or other surrender of this Lease
or the Premises by Tenant or a mutual cancellation of this Lease shall not
work as a merger and, at the option of Landlord, shall either terminate all
or any existing subleases or subtenancies or operate as an assignment to
Landlord of all or any such subleases or subtenancies. At the Commencement of
the Lease, all known roof leaks shall have been repaired and the elevator and
elevator hydraulic systems serviced at Landlord's expense.
6. ALTERATIONS AND ADDITIONS Tenant shall not make, or suffer to be made,
any alteration or addition to the Premises, or any part thereof, without the
written consent of Landlord first had and obtained by Tenant (such consent
not to be unreasonably withheld), but at the cost of Tenant, and any addition
to, or alteration of, the Premises, except moveable furniture and trade
fixtures, shall at once become a part of the Premises and belong to Landlord.
Landlord reserves the right to approve all contractors and mechanics proposed
by Tenant to make such alterations and additions. Tenant shall retain title
to all moveable furniture and trade fixtures placed in the Premises. All
heating, lighting, electrical, airconditioning, floor to ceiling
partitioning, drapery, carpeting, and floor installations made by Tenant,
together with all property that has become an integral part of the Premises,
shall not be deemed trade fixtures. Tenant agrees that it will not proceed to
make such alteration or additions, without having obtained consent from
Landlord to do so, and until five (5) days from the receipt of such consent,
in order that Landlord may post appropriate notices to avoid any liability to
contractors or material suppliers for payment for Tenant's improvements.
Tenant will at all times permit such notices to be posted and to remain
posted until the completion of work. Tenant shall, if required by Landlord,
secure at Tenant's own cost and expense, a completion and lien indemnity
bond, satisfactory to Landlord, for such work. Tenant further covenants and
agrees that any mechanic's lien filed against the Premises for work claimed
to have been done for, or materials claimed to have been furnished to Tenant,
will be discharged by Tenant, by bond or otherwise, within ten (10) days
after the filing thereof, at the cost and expense of Tenant. Any exceptions
to the foregoing must be made in writing and executed by both Landlord and
Tenant.
7. TENANT MAINTENANCE. Tenant shall, at its sole cost and expense, keep and
maintain the Premises (including appurtenances) and every part thereof in a
high standard of maintenance and repair, and in good and sanitary condition.
Tenant's maintenance and repair responsibilities herein referred to include,
but are not limited to, janitorization, plumbing systems within the Premises
(such as water and drain lines, sinks), electrical systems within the
Premises (such as outlets, lighting fixtures, lamps, bulbs, tubes, ballasts),
heating and airconditioning controls within the Premises (such as mixing
boxes, thermostats, time clocks, supply and return grill(s), all interior
improvements within the premises including but not limited to: wall
coverings, window coverings, acoustical ceilings, vinyl tile, carpeting,
partitioning, doors (both interior and exterior, including closing
mechanisms, latches, locks), and all other interior improvements of any
nature whatsoever. Tenant agrees to provide carpet xxxxxxx under all rolling
chairs or to otherwise be responsible for wear and tear of the carpet caused
by such rolling chairs if such wear and tear exceeds that caused by normal
foot traffic in surrounding areas. Areas of excessive wear shall be replaced
at Tenant's sole expense upon Lease termination.
8. UTILITIES SEE PARAGRAPH 45
9. TAXES A. As Additional Rent and in accordance with Paragraph 4D of
this Lease, Tenant shall pay to Landlord, or if Landlord so directs, directly
to the Tax Collector, all Real Property Taxes relating to the Premises. In
the event the Premises leased hereunder consist of only a portion of the
entire tax parcel, Tenant shall pay to Landlord Tenant's proportionate share
of such real estate taxes allocated to the leased Premises by square footage
or other reasonable basis as calculated and determined by Landlord. If the
tax billing pertains 100% to the leased Premises, and Landlord chooses to
have Tenant pay said real estate taxes directly to the Tax Collector, then in
such event it shall be the responsibility of Tenant to obtain the tax and
assessment bills and pay, prior to delinquency, the applicable real property
taxes and assessments pertaining to the leased Premises, and failure to
receive a xxxx for taxes and/or assessments shall not provide a basis for
cancellation of or nonresponsibility for payment of penalties for nonpayment
or late payment by Tenant. The term "Real Property Taxes", as used herein,
shall mean (i) all taxes, assessments, levies and other charges of any kind
or nature whatsoever, general and special, foreseen and unforeseen (including
all installments of principal and interest required to pay any general or
special assessments for public improvements and any increases resulting from
reassessments caused by any change in ownership of the Premises) now or
hereafter imposed by any governmental or quasi-governmental authority or
special district having the direct or indirect power to tax or levy
assessments, which are levied or assessed against, or with respect to the
value, occupancy or use of, all or any portion of the Premises (as now
constructed or as may at any time hereafter be constructed, altered, or
otherwise changed) or Landlord's interest therein; any improvements located
within the Premises (regardless of ownership); the fixtures, equipment and
other property of Landlord, real or personal, that are an integral part of
and located in the Premises; or parking areas, public utilities, or energy
within the Premises; (ii) all charges, levies or fees imposed by reason of
environmental regulation or other governmental control of the Premises; and
(iii) all costs and fees (including
Initials: [Illegible]
------------
Initials:
------------
page 3 of 8
reasonable attorneys' fees) incurred by Landlord in reasonably contesting any
Real Property Tax and in negotiating with public authorities as to any Real
Property Tax. If at any time during the term of this Lease the taxation or
assessment of the Premises prevailing as of the commencement date of this
Lease shall be altered so that in lieu of or in addition to any Real Property
Tax described above there shall be levied, assessed or imposed (whether by
reason of a change in the method of taxation or assessment, creation of a new
tax or charge, or any other cause) an alternate or additional tax or charge
(i) on the value, use or occupancy of the Premises or Landlord's interest
therein or (ii) on or measured by the gross receipts, income or rentals from
the Premises, on Landlord's business of leasing the Premises, or computed in
any manner with respect to the operation of the Premises, then any such tax
or charge, however designated, shall be included within the meaning of the
term "Real Property Taxes" for purposes of this Lease. If any Real Property
Tax is based upon property or rents unrelated to the Premises, then only that
part of such Real Property Tax that is fairly allocable to the Premises shall
be included within the meaning of the term "Real Property Taxes".
Notwithstanding the foregoing, the term "Real Property Taxes" shall not
include estate, inheritance, gift or franchise taxes of Landlord or the
federal or state net income tax imposed on Landlord's income from all
sources.
B. TAXES ON TENANT'S PROPERTY Tenant shall be liable for and
shall pay ten days before delinquency, taxes levied against any personal
property or trade fixtures placed by Tenant in or about the Premises. If any
such taxes on Tenant's personal property or trade fixtures are levied against
Landlord or Landlord's property or if the assessed value of the Premises is
increased by the inclusion therein of a value placed upon such personal
property or trade fixtures if Tenant and if Landlord, after written notice to
Tenant, pays the taxes based on such increased assessment, which Landlord
shall have the right to do regardless of the validity thereof, but only under
proper protest if requested by Tenant, Tenant shall upon demand, as the case
may be, repay to Landlord the taxes so levied against Landlord, or the
proportion of such taxes resulting from such increase in the assessment;
provided that in any such event Tenant shall have the right, in the name of
Landlord and with Landlord's full cooperation, to bring suit in any court of
competent jurisdiction to recover the amount of such taxes so paid under
protest, and any amount so recovered shall belong to Tenant.
10. LIABILITY INSURANCE Tenant, at Tenant's expense, agrees to keep in
force during the term of this Lease a policy of comprehensive general
liability insurance for bodily injury and property damage occurring in, on or
about the Premises, including parking and landscaped areas, in the amount of
$2,000,000 combined single limit. Such insurance shall be primary and
noncontributory as respects any insurance carried by Landlord. The policy or
policies effecting such insurance shall name Landlord as additional insureds,
and shall insure any liability of Landlord, contingent or otherwise, as
respects acts or omissions of Tenant, its agents, employees or invitees or
otherwise by any conduct or transactions of any of said persons in or about
or concerning the Premises, including any failure of Tenant to observe or
perform any of its obligations hereunder; shall be issued by an insurance
company admitted to transact business in the State of California; and shall
provide that the insurance effected thereby shall not be canceled, except
upon thirty (30) days' prior written notice to Landlord. A certificate of
insurance of said policy shall be delivered to Landlord. If, during the term
of this Lease, in the considered and reasonable opinion of Landlord's Lender,
insurance advisor, or counsel, the amount of insurance described in this
Paragraph 10 is not adequate, Tenant agrees to increase said coverage to such
reasonable amount as Landlord's Lender, insurance advisor, or counsel shall
deem adequate.
11. TENANT'S PERSONAL PROPERTY INSURANCE AND XXXXXXX'X COMPENSATION
INSURANCE Tenant shall maintain a policy or policies of fire and property
damage insurance in "all risk" form with a sprinkler leakage endorsement
insuring the personal property, inventory, trade fixtures, and leasehold
improvements within the leased Premises for the full replacement value
thereof. The proceeds from any of such policies shall be used for the repair
or replacement of such items so insured. Tenant shall also maintain a
policy or policies of xxxxxxx'x compensation insurance and any other employee
benefit insurance sufficient to comply with all laws.
12. PROPERTY INSURANCE Landlord shall purchase and keep in force, and as
Additional Rent and in accordance with Paragraph 4D of this Lease, Tenant
shall pay to Landlord Tenant's proportionate share (allocated to the leased
Premises by square footage or other reasonable and equitable basis as
calculated and determined by Landlord) of the cost of, policy or policies of
insurance covering loss or damage to the Premises (excluding routine
maintenance and repairs and incidental damage or destruction caused by
accidents or vandalism for which Tenant is responsible under Paragraph 7) in
the amount of the full replacement value thereof, providing protection
against those perils included within the classification of "all risks"
insurance and flood and/or earthquake insurance, if available, plus a policy
of rental income insurance in the amount of one hundred (100%) percent of
twelve (12) months Basic Rent, plus sums paid as Additional Rent. If such
insurance cost is increased due to Tenant's use of the Premises, Tenant
agrees to pay to Landlord the full cost of such increase. Tenant shall have
no interest in nor any right to the proceeds of any insurance procured by
Landlord for the Premises.
Landlord and Tenant do each hereby respectively release the other,
to the extent of insurance coverage of the releasing party, from any
liability for loss or damage caused by fire or any of the extended coverage
casualties included in the releasing party's insurance policies to be
maintained pursuant to this Lease irrespective of the cause of such fire or
casualty; provided, however, that if the insurance policy of either releasing
party prohibits such waiver, then this waiver shall not take effect until
consent to such waiver is obtained. If such waiver is so prohibited, the
insured parties affected shall promptly notify the other party thereof.
13. INDEMNIFICATION Landlord shall not be liable to Tenant and Tenant
hereby waives all claims against Landlord for any injury to or death of any
person or damage to or destruction of property in or about the Premises by or
from any cause whatsoever, including, without limitation, gas, fire, oil,
electricity or leakage of any character from the roof, walls, basement or
other portion of the Premises but excluding, however, the negligence of
Landlord, its agents, servants, employees, invitees, or contractors of which
negligence Landlord has knowledge and reasonable time to correct. Except as
to injury to persons or damage to property the principal cause of which is
the negligence of Landlord, Tenant shall hold Landlord harmless from and
defend Landlord against any and all expenses, including reasonable attorneys'
fees, in connection therewith, arising out of any injury to or death of any
person or damage to or destruction of property occurring in, on or about the
Premises, or any part thereof, from any cause whatsoever.
14. COMPLIANCE With respect to the Premises, Tenant, at its sole cost and
expense, shall promptly comply with all laws, statutes, ordinances and
governmental rules, regulations or requirements now or hereafter in effect;
with the requirements of any board of fire underwriters or other similar body
now or hereafter constituted; and with any direction or occupancy certificate
issued pursuant to law by any public officer; provided, however, that no such
failure shall be deemed a breach of the provisions if Tenant, immediately
upon notification, commences to remedy or rectify said failure. The judgment
of any court of competent jurisdiction or the admission of Tenant in any
action against Tenant, whether Landlord be a party thereto or not, that
Tenant has violated any such law, statute, ordinance or governmental rule,
regulation, requirement, direction or provision, shall be conclusive of that
fact as between Landlord and Tenant. Tenant shall, at its sole cost and
expense, comply with any and all requirements pertaining to said Premises, of
any insurance organization or company, necessary for the maintenance of
reasonable fire and public liability insurance covering requirements
pertaining to said Premises, of any insurance organization or company
necessary for the maintenance of reasonable fire and public liability
insurance covering the Premises.
15. LIENS Tenant shall keep the Premises free from any liens arising out of
any work performed, materials furnished or obligation incurred by Tenant. In
the event that Tenant shall not, within ten (10) days following the
imposition of such lien, cause the same to be released of record, Landlord
shall have, in addition to all other remedies provided herein and by law, the
right, but no obligation, to cause the same to be released by such means as
it shall deem proper, including payment of the claim giving rise to such
lien. All sums paid by Landlord for such purpose, and all expenses incurred
by it in connection therewith, shall be payable to Landlord by Tenant on
demand with interest at the prime rate of interest as quoted by the Bank of
America.
16. ASSIGNMENT AND SUBLETTING Tenant shall not assign, transfer, or
hypothecate the leasehold estate under this Lease, or any interest therein,
and shall not sublet the Premises, or any part thereof, or any right or
privilege appurtenant thereto, or suffer any other person or entity to occupy
or use the Premises, or any portion thereof, without, in each case, the prior
written consent of Landlord which consent will not be unreasonably withheld.
As a condition for granting this consent to any assignment, transfer, or
subletting, Landlord may require that Tenant agrees to pay to Landlord, as
additional rent, all rents or additional consideration received by Tenant
from its assignees, transferees, or subtenants in excess of the rent payable
by Tenant to Landlord hereunder. Tenant shall, by thirty (30) days written
notice, advise Landlord of its intent to assign or transfer Tenant's interest
in the Lease or sublet the Premises or any portion thereof for any part of
the term hereof. Within thirty (30) days after receipt of said written
notice, Landlord may, in its sole discretion, elect to terminate this Lease
as to the portion of the Premises described in Tenant's notice on the date
specified in Tenant's notice by giving written notice of such election to
terminate. If no such notice to terminate is given to Tenant within said
thirty (30) day period, Tenant may proceed to locate an acceptable sublessee,
assignee, or other transferee for presentment to Landlord for Landlord's
approval, all in accordance with the terms, covenants, and conditions of this
paragraph 16. If Tenant intends to sublet the entire Premises and Landlord
elects to terminate this Lease, this Lease shall be terminated on the date
specified in Tenant's notice. If, however, this Lease shall terminate
pursuant to the foregoing with respect to less than all the Premises, the
rent, as defined and reserved hereinabove shall be adjusted on a pro rata
basis to the number of square feet retained by Tenant, and this Lease as so
amended shall continue in full force and effect. In the event Tenant is
allowed to assign, transfer or sublet the whole or any part of the Premises,
with the prior written
Initials: [ILLEGIBLE]
------------
Initials:
------------
page 4 of 8
consent of Landlord, no assignee, transferee or subtenant shall assign or
transfer this Lease, either in whole or in part, or sublet the whole or any
part of the Premises, without also having obtained the prior written consent
of Landlord which consent shall not be unreasonably withheld. A consent of
Landlord to one assignment, transfer, hypothecation, subletting, occupation
or use by any other person shall not release Tenant from any of Tenant's
obligations hereunder or be deemed to be a consent to any subsequent similar
or dissimilar assignment, transfer, hypothecation, subletting, occupation or
use by any other person. Any such assignment, transfer, hypothecation,
subletting, occupation or use without such consent shall be void and shall
constitute a breach of this Lease by Tenant and shall, at the option of
Landlord exercised by written notice to Tenant, terminate this Lease. The
leasehold estate under this Lease shall not, nor shall any interest therein,
be assignable for any purpose by operation of law without the written consent
of Landlord. As a condition to its consent, Landlord may require Tenant to
pay all expenses in connection with the assignment, and Landlord may require
Tenant's assignee or transferee (or other assignees or transferees) to assume
in writing all of the obligations under this Lease and for Tenant to remain
liable to Landlord under the Lease.
17. SUBORDINATION AND MORTGAGES In the event Landlord's title or leasehold
interest is now or hereafter encumbered by a deed of trust upon the interest
of Landlord in the land and buildings in which the demised Premises are
located, to secure a loan from a lender (hereinafter referred to as "Lender")
to Landlord, Tenant shall, at the request of Landlord or Lender, execute in
writing an agreement subordinating its rights under this Lease to the lien of
such deed of trust, or, if so requested, agreeing that the lien of Lender's
deed of trust shall be or remain subject and subordinate to the rights of
Tenant under the Lease and provided Lender executes a reasonable
non-disturbance agreement. Notwithstanding any such subordination, Tenant's
possession under this Lease shall not be disturbed if Tenant is not in
default and so long as Tenant shall pay all rent and observe and perform all
of the provisions set forth in this Lease.
18. ENTRY BY LANDLORD Landlord reserves, and shall at all reasonable times after
at least 24 hours notice (except in emergencies) have, the right to enter the
Premises to inspect them; to perform any services to be provided by Landlord
hereunder; to make repairs or provide any services to a contiguous tenant(s); to
submit the Premises to prospective purchasers, mortgagers or tenants; to post
notices of nonresponsibility; and to alter, improve or repair the Premises or
other parts of the building, all without abatement of rent, and may erect
scaffolding and other necessary structures in or through the Premises where
reasonably required by the character of the work to be performed; provided,
however that the business of Tenant shall be interfered with to the least extent
that is reasonably practical. Any entry to the Premises by Landlord for the
purposes provided for herein shall not under any circumstances be construed or
deemed to be a forcible or unlawful entry into or a detainer of the Premises or
an eviction, actual or constructive, of Tenant from the Premises or any portion
thereof.
19. BANKRUPTCY AND DEFAULT The commencement of a bankruptcy action or
liquidation action or reorganization action or insolvency action or an
assignment of or by Tenant for the benefit of creditors, or any similar action
undertaken by Tenant, or the insolvency of Tenant, shall, at Landlord's option.
constitute a breach of this Lease by Tenant. If the trustee or receiver
appointed to serve during a bankruptcy, liquidation, reorganization, insolvency
or similar action elects to reject Tenant's unexpired Lease, the trustee or
receiver shall notify Landlord in writing of its election within thirty (30)
days after an order for relief in a liquidation action or within thirty (30)
days after the commencement of any action.
Within thirty (30) days after court approval of the assumption of this Lease,
the trustee or receiver shall cure (or provide adequate assurance to the
reasonable satisfaction of Landlord that the trustee or receiver shall cure) any
and all previous defaults under the unexpired Lease and shall compensate
Landlord for all actual pecuniary loss and shall provide adequate assurance of
future performance under said Lease to the reasonable satisfaction of Landlord.
Adequate assurance of future performance, as used herein, includes, but shall
not be limited to: (i) assurance of source and payment of rent, and other
consideration due under this Lease; (ii) assurance that the assumption or
assignment of this Lease will not breach substantially any provision, such as
radius, location, use, or exclusivity provision, in any agreement relating to
the above described Premises.
Nothing contained in this section shall affect the existing right of Landlord
to refuse to accept an assignment upon commencement of or in connection with a
bankruptcy, liquidation, reorganization or insolvency action or an assignment of
Tenant for the benefit of creditors or other similar act. Nothing contained in
this Lease shall be construed as giving or granting or creating an equity in the
demised Premises to Tenant. In no event shall the leasehold estate under this
Lease, or any interest therein, be assigned by voluntary or involuntary
bankruptcy proceeding without the prior written consent of Landlord. In no event
shall this Lease or any rights or privileges hereunder be an asset of Tenant
under any bankruptcy, insolvency or reorganization proceedings.
The failure to perform or honor any covenant, condition or representation
made under this Lease shall constitute a default hereunder by Tenant upon
expiration of the appropriate grace period hereinafter provided. Tenant shall
have a period of five (5) days from the date of written notice from Landlord
within which to cure any default in the payment of rental or adjustment thereto.
Tenant shall have a period of thirty (30) days from the date of written notice
from Landlord within which to cure any other default under this Lease; provided,
however, that if the nature of Tenant's failure is such that more than thirty
(30) days is reasonably required to cure the same, Tenant shall not be in
default so long as Tenant commences performance with in such thirty (30) day
period and thereafter prosecutes the same to completion. Upon an uncured default
of this Lease by Tenant, Landlord shall have the following rights and remedies
in addition to any other rights or remedies available to Landlord at law or in
equity:
(a) The rights and remedies provided for by California Civil Code Section
1951.2, including but not limited to, recovery of 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 rental loss for the same period that Tenant
proves could be reasonably avoided, as computed pursuant to subsection (b) of
said Section 1951.2. Any proof by Tenant under subparagraphs (2) and (3) of
Section 1951.2 of the California Civil Code of the amount of rental loss that
could be reasonably avoided shall be made in the following manner: Landlord and
Tenant shall each select a licensed real estate broker in the business of
renting property of the same type and use as the Premises and in the same
geographic vicinity. Such two real estate brokers shall select a third licensed
real estate broker, and the three licensed real estate brokers so selected shall
determine the amount of the rental loss that could be reasonably avoided from
the balance of the term of this Lease after the time of award. The decision of
the majority of said licensed real estate brokers shall be final and binding
upon the parties hereto.
(b) The rights and remedies provided by California Civil Code Section
1951.4 which allows Landlord to continue the Lease in effect and to enforce all
of its rights and remedies under this Lease, including the right to recover rent
as it becomes due, for so long as Landlord does not terminate Tenant's right to
possession; acts of maintenance or preservation, efforts to relet the Premises,
or the appointment of a receiver upon Landlord's initiative to protect its
interest under this Lease shall not constitute a termination of Tenant's right
to possession.
(c) The right to terminate this Lease by giving notice to Tenant in
accordance with applicable law.
(d) To the extent permitted by law, the right and power, to enter the
Premises and remove therefrom all persons and property, to store such property
in a public warehouse or elsewhere at the cost of and for the account of Tenant,
and to sell such property and apply such proceeds therefrom pursuant to
applicable California law. Landlord, may from time to time sublet the Premises
or any part thereof for such term or terms (which may extend beyond the term of
this Lease) and at such rent and such other terms as Landlord in its reasonable
sole discretion may deem advisable, with the right to make alterations and
repairs to the Premises. Upon each subletting, (i) Tenant shall be immediately
liable to pay Landlord, in addition to indebtedness other than rent due
hereunder, the reasonable cost of such subletting, including, but not limited
to, reasonable attorneys' fees, and any real estate commissions actually paid,
and the cost of such reasonable alterations and repairs incurred by Landlord and
the amount, if any, by which the rent hereunder for the period of such
subletting (to the extent such period does not exceed the term hereof) exceeds
the amount to be paid as rent for the Premises for such period or (ii) at the
option of Landlord, rents received from such subletting shall be applied first
to payment of indebtedness other than rent due hereunder from Tenant to
Landlord; second, to the payment of any costs of such subletting and of such
alterations and repairs; third to payment of rent due and unpaid hereunder; and
the residue, if any, shall be held by Landlord and applied in payment of future
rent as the same becomes due hereunder. If Tenant has been credited with any
rent to be received by such subletting under option (i), and such rent shall not
be promptly paid to Landlord by the subtenant(s), or it such rentals received
from such subletting under option (ii) during any month be less than that to be
paid during that month by Tenant hereunder, Tenant shall pay any such deficiency
to Landlord. Such deficiency shall be calculated and paid monthly. No taking
possession of the Premises by Landlord, shall be construed as an election on its
part to terminate this Lease unless a written notice of such intention be given
to Tenant. Notwithstanding any such subletting without termination, Landlord may
at any time hereafter elect to terminate this Lease for such previous breach.
(e) The right to have a receiver appointed for Tenant upon application by
Landlord, to take possession of the Premises and to apply any rental collected
from the Premises and to exercise all other rights and remedies granted to
Landlord pursuant to subparagraph d above.
20. ABANDONMENT Tenant shall not vacate or abandon the Premises at any time
during the term of this Lease (except that Tenant may vacate so long as it pays
rent, provides an on-site security guard during normal business hours from
Monday through Friday, and otherwise performs its obligations hereunder) and if
Tenant shall abandon, vacate or surrender said Premises, or be dispossessed by
the process of law, or otherwise, any personal property belonging to Tenant and
left on the Premises shall be deemed to be abandoned, at the option of Landlord,
except such property as may be mortgaged to Landlord.
21. DESTRUCTION In the event the Premises are destroyed in whole or in part from
any cause, except for routine maintenance and repairs and incidental
page 5 of 8
damage and destruction caused from vandalism and accidents for which Tenant is
responsible under Xxxxxxxxx 0, Xxxxxxxx may, at its option:
(a) Rebuild or restore the Premises to their condition prior to
the damage or destruction, or
(b) Terminate the Lease (providing that the Premises is damaged
to the extent of 33 1/3% of the replacement cost).
If Landlord does not give Tenant notice in writing within thirty (30) days
from the destruction of the Premises of its election to either rebuild and
restore them, or to terminate this Lease, Landlord shall be deemed to have
elected to rebuild or restore them, in which event Landlord agrees, at its
expense, promptly to rebuild or restore the Premises to their condition prior to
the damage or destruction. Tenant shall be entitled to a reduction in rent while
such repair is being made in proportion that the area of the Premises rendered
untenantable by such damage bears to the total area of the Premises. If Landlord
initially estimates that the rebuilding or restoration will exceed 180 days or
if Landlord does not complete the rebuilding or restoration within one hundred
eighty (180) days following the date of destruction (such period of time to be
extended for delays caused by the fault or neglect of Tenant or because of Acts
of God, acts of public agencies, labor disputes, strikes, fires, freight
embargos, rainy or stormy weather, inability to obtain materials, supplies or
fuels, acts of contractors or subcontractors, or delay of the contractors or
subcontractors due to such causes or other contingencies beyond the control of
Landlord), then Tenant shall have the right to terminate this Lease by giving
fifteen (15) days prior written notice to Landlord. Notwithstanding anything
herein to the contrary, Landlord's obligation to rebuild or restore shall be
limited to the building and interior improvements constructed by Landlord as
they existed as of the commencement date of the Lease and shall not include
restoration of Tenant's trade fixtures, equipment merchandise, or any
improvements, alterations or additions made by Tenant to the Premises, which
Tenant shall forthwith replace or fully repair at Tenant's sole cost and expense
provided this Lease is not cancelled according to the provisions above.
Unless this Lease is terminated pursuant to the foregoing provisions, this
Lease shall remain in full force and effect. Tenant hereby expressly waives the
provisions of Section 1932, Subdivision 2, in Section 1933, Subdivision 4 of the
California Civil Code.
In the event that the building in which the Premises are situated is
damaged or destroyed to the extent of not less than 33 1/3% of the replacement
cost thereof, Landlord may elect to terminate this Lease, whether the Premises
be injured or not. In the event the destruction of the Premises is caused by
Tenant, Tenant shall pay the deductible portion of Landlord's insurance
proceeds.
22. EMINENT DOMAIN If all or any part of the Premises shall be taken by any
public quasi-public authority under the power of eminent domain or conveyance
in lieu thereof, this Lease shall terminate as to any portion of the Premises
so taken or conveyed on the date when title vests in the condemnor, and
Landlord shall be entitled to any and all payment, income, rent, award, or
any interest therein whatsoever which may be paid or made in connection with
such taking or conveyance, and Tenant shall have no claim against Landlord or
otherwise for the value of any unexpired term of this Lease. Notwithstanding
the foregoing paragraph, any compensation specifically awarded Tenant for
loss of business, Tenant's personal property, moving cost and/or loss of
goodwill, shall be and remain the property of Tenant.
If any action or proceeding is commenced for such taking of 33 1/3% or more
of the Premises, or if Landlord is advised in writing by any entity or body
having the right or power of condemnation of its intention to condemn the
Premises or any portion thereof, then Landlord shall have the right to terminate
this Lease by giving Tenant written notice thereof within sixty (60) days of the
date of receipt of said written advice, or commencement of said action or
proceeding, or taking conveyance, which termination shall take place as of the
first to occur of the last day of the calendar month next following the month in
which such notice is given or the date on which title to the Premises shall vest
in the condemnor.
In the event of such a partial taking or conveyance of the Premises, if the
portion of the Premises taken or conveyed is so substantial that the Tenant can
no longer reasonably conduct its business, Tenant shall have the privilege of
terminating this Lease within sixty (60) days from the date of such taking or
conveyance, upon written notice to Landlord of its intention so to do, and upon
giving of such notice this Lease shall terminate on the last day of the calendar
month next following the month in which such notice is given, upon payment by
Tenant of the rent from the date of such taking or conveyance to the date of
termination.
If a portion of the Premises be taken by condemnation or conveyance in lieu
thereof and neither Landlord nor Tenant shall terminate this Lease as provided
herein, this Lease shall continue in full force and effect as to the part of the
Premises not so taken or conveyed, and the rent herein shall be apportioned as
of the date of such taking or conveyance so that thereafter the rent to be paid
by Tenant shall be in the ratio that the area of the portion of the Premises not
so taken or conveyed bears to the total area of the Premises prior to such
taking.
23. SALE OR CONVEYANCE BY LANDLORD In the event of a sale or conveyance of the
Premises or any interest therein, by any owner of the reversion then
constituting Landlord, the transferor shall thereby be released from any further
liability upon any of the terms, covenants or conditions (express or implied)
herein contained in favor of Tenant, and in such event, insofar as such transfer
is concerned, Tenant agrees to look solely to the responsibility of the
successor in interest of such transferor in and to the Premises and this Lease
for the performance of this Lease following such transfer. This Lease shall not
be affected by any such sale or conveyance, and Tenant agrees to attorn to the
success in interest of such transferor.
24. ATTORNMENT TO LENDER OR THIRD PARTY In the event the interest of Landlord in
the land and buildings in which the leased Premises are located (whether such
interest of Landlord is a fee title interest or a leasehold interest) is
encumbered by deed of trust, and such interest is acquired by the lender or any
third party through Judicial foreclosure or by exercise of a power of sale at
private trustee's foreclosure sale. Tenant hereby agrees to attorn to the
purchaser at any such foreclosure sale and to recognize such purchaser as the
Landlord under this Lease. In the event the lien of the deed of trust securing
the loan from a Lender to Landlord is prior and paramount to the Lease, this
Lease shall nonetheless continue in full force and effect for the remainder of
the unexpired term hereof, at the same rental herein reserved and upon all the
other terms, conditions and covenants herein contained.
25. HOLDING OVER Any holding over by Tenant after expiration or other
termination of the term of this Lease with the written consent of Landlord
delivered to Tenant shall not constitute a renewal or extension of the Lease or
give Tenant any rights in or to the leased Premises except as expressly provided
in this Lease. Any holding over after the expiration or other termination of the
term of this Lease, with the consent of Landlord, shall be construed to be a
tenancy from month to month, on the same terms and conditions herein specified
insofar as applicable except that the monthly Basic Rent shall be increased to
an amount equal to one hundred fifty (150%) percent of the monthly Basic
Rent required during the last month of the Lease term; provided, however, during
the first 60 days of the Holdover Period, the Basic Rent shall be increased to
120%.
26. CERTIFICATE OF ESTOPPEL Tenant shall at any time upon not less than ten (10)
days prior written notice from Landlord execute, acknowledge and deliver to
Landlord a statement in writing (i) certifying that this Lease is unmodified and
in full force and effect (or, if modified, stating the nature of such
modification and certifying that this Lease, as so modified, is in full force
and effect) and the date to which the rent and other charges are paid in
advance, if any, and (ii) acknowledging that there are not, to Tenant's
knowledge, any uncured defaults on the part of Landlord hereunder, or specifying
such defaults, if any, are claimed. Any such statement may be conclusively
relied upon by any prospective purchaser or encumbrancer of the Premises.
Tenant's failure to deliver such statement within such time shall be conclusive
upon Tenant that this Lease is in full force and effect, without modification
except as may be represented by Landlord; that there are no uncured defaults in
Landlord's performance; and that not more than one month's rent has been paid in
advance.
27. CONSTRUCTION CHANGES It is understood that the description of the Premises
and the location of ductwork, plumbing and other facilities therein are subject
to such minor changes as Landlord or Landlord's architect determines to be
desirable in the course of construction of the Premises, and no such changes
shall affect this Lease or entitle Tenant to any reduction of rent hereunder or
result in any liability of Landlord to Tenant. Landlord does not guarantee the
accuracy of any drawings supplied to Tenant and verification of the accuracy of
such drawings rests with Tenant.
28. RIGHT OF LANDLORD TO PERFORM All terms, covenants and conditions of this
Lease to be performed or observed by Tenant shall be performed or observed by
Tenant at Tenant's sole cost and expense and without any reduction of rent. If
Tenant shall fail to pay any sum of money, or other rent, required to be paid by
it hereunder or shall fail to perform any other term or covenant hereunder on
its part to be performed, and such failure shall continue for five (5) days
after written notice thereof by Landlord, Landlord, without waiving or releasing
Tenant from any obligation of Tenant hereunder, may, but shall not be obliged
to, make any such payment or perform any such other term or covenant on Tenant's
part to be performed. All sums so paid by Landlord and all necessary costs of
such performance by Landlord together with interest thereon at the rate of the
prime rate of interest per annum as quoted by the Bank of America from the date
of such payment on performance by Landlord, shall be paid (and Tenant covenants
to make such payment) to Landlord on demand by Landlord, and Landlord shall have
(in addition to any other right or remedy of Landlord) the same rights and
remedies in the event of nonpayment by Tenant as in the case of failure by
Tenant in the payment of rent hereunder.
29. ATTORNEY'S FEES
A. In the event that either Landlord or Tenant should bring suit for the
possession of the Premises, for the recovery of any sum due under this Lease, or
because of the breach of any provision of this Lease, or for any other relief
against the other party hereunder, then all costs and expenses, including
reasonable attorney's fees,
page 6 of 8
incurred by the prevailing party therein shall be paid by the other party, which
obligation on the part of the other party shall be deemed to have accrued on the
date of the commencement of such action and shall be enforceable whether or not
the action is prosecuted to judgment.
B. Should Landlord be named as a defendant in any suit brought against
Tenant in connection with or arising out of Tenant's occupancy hereunder, Tenant
shall pay to Landlord its costs and expenses incurred in such suit, including a
reasonable attorney's fee.
30. WAIVER The waiver by either party of the other party's failure to perform or
observe any term, covenant or condition herein contained to be performed or
observed by such waiving party shall not be deemed to be a waiver of such term,
covenant or condition or of any subsequent failure of the party failing to
perform or observe the same or any other such term, covenant or condition
therein contained, and no custom or practice which may develop between the
parties hereto during the term hereof shall be deemed a waiver of, or in any way
affect, the right of either party to insist upon performance and observance by
the other party in strict accordance with the terms hereof.
31. NOTICES All notices, demands, requests, advices or designations which may be
or are required to be given by either party to the other hereunder shall be in
writing. All notices, demand, requests, advices or designations by Landlord to
Tenant shall be sufficiently given, made or delivered if personally served on
Tenant by leaving the same at the Premises of if sent by United Stated certified
or registered mail, postage prepaid, addressed to Tenant at the Premises. All
notices, demands, requests, advices or designations by Tenant to Landlord shall
be sent by United States certified or registered mail, postage prepaid,
addressed to Landlord at its offices at XXXXX/XXXXXXXXX, 0000 XXXXXXX XXXXXXX
XXXX., XXXXX 000, XXXXX XXXXX, XX 00000. Each notice, request, demand, advice or
designation referred to in this paragraph shall be deemed received on the date
of the personal service or mailing thereof in the manner herein provided, as the
case may be.
32. EXAMINATION OF LEASE Submission of this instrument for examination or
signature by Tenant does not constitute a reservation of or option for a lease,
and this instrument is not effective as a lease or otherwise until its execution
and delivery by both Landlord and Tenant.
33. DEFAULT BY LANDLORD Landlord shall not be in default unless Landlord fails
to perform obligations required of Landlord within a reasonable time, but in no
event earlier than (30) days after written notice by Tenant to Landlord and to
the holder of any first mortgage or deed of trust covering the Premises whose
name and address shall have heretofore been furnished to Tenant in writing,
specifying wherein Landlord has failed to perform such obligations; provided,
however, that if the nature of Landlord's obligations is such that more than
thirty (30) days are required for performance, then Landlord shall not be in
default if Landlord commences performance within such thirty (30) day period and
thereafter diligently prosecutes the same to completion.
34. CORPORATE AUTHORITY If Tenant is a corporation (or a partnership), each
individual executing this Lease on behalf of said corporation (or partnership)
represents and warrants that he is duly authorized to execute and deliver this
Lease on behalf of said corporation (or partnership) in accordance with the
by-laws of said corporation (or partnership in accordance with the partnership
agreement) and that this Lease is binding upon said corporation (or partnership)
in accordance with its terms, if Tenant is a corporation, Tenant shall, within
thirty (30) days after execution of this Lease, deliver to Landlord a certified
copy of the resolution of the Board of Directors of said corporation authorizing
or ratifying the execution of this Lease.
36. LIMITATION OF LIABILITY In consideration of the benefits accruing hereunder.
Tenant and all successors and assigns covenant and agree that, in the event of
any actual or alleged failure, breach or default hereunder by Landlord:
(a) the sole and exclusive remedy shall be against Landlord and Landlord's
assets;
(b) no partner of Landlord shall be sued or named as a party in any suit or
action (except as may be necessary to secure jurisdiction of the partnership);
(c) no service of process shall be made against any partner of Landlord
(except as may be necessary to secure jurisdiction of the partnership);
(d) no partner of Landlord shall be required to answer or otherwise plead
to any service of process;
(e) no judgment will be taken against any partner of Landlord;
(f) any judgment taken against any partner of Landlord may be vacated and
set aside at any time without hearing;
(g) no writ of execution will ever by levied against the assets of any
partner of Landlord;
(h) these covenants and agreements are enforceable both by Landlord and
also by any partner of Landlord. Tenant agrees that each of the foregoing
covenants and agreements shall be applicable to any covenant or agreement
either expressly contained in this Lease or imposed by statute or at common
law.
37. SIGNS No sign, placard, picture, advertisement, name or notice shall be
inscribed, displayed or printed or affixed on or to any part of the outside of
the Premises or any exterior windows of the Premises without the written consent
of Landlord first had and obtained and Landlord shall have the right to remove
any such sign, placard, picture, advertisement, name or notice without notice to
and at the expense of Tenant. If Tenant is allowed to print or affix or in any
way place a sign in, on, or about the Premises, upon expiration or other sooner
termination of this Lease, Tenant at Tenant's sole cost and expense shall both
remove such sign and repair all damage in such a manner as to restore all
aspects of the appearance of the Premises to the condition prior to the
placement of said sign.
All approved signs or lettering on outside doors shall be printed, painted,
affixed or inscribed at the expense of Tenant by a person approved of by
Landlord.
Tenant shall not place anything or allow anything to be placed near the glass
of any window, door partition or wall which may appear unsightly from outside
the Premises.
38. MISCELLANEOUS AND GENERAL PROVISIONS
A. USE OF BUILDING NAME. Tenant shall not, without the written consent
of Landlord, use the name of the building for any purpose other than as the
address of the business conducted by Tenant in the Premises.
Page 7 of 8 Intials: [ILLEGIBLE]
-------
Intials:
-------
B. Choice OF LAW; SEVERABILITY. This Lease shall in all respects be governed
by and construed in accordance with the laws of the State of California. If any
provision of this Lease shall be invalid, unenforceable or ineffective for any
reason whatsoever, all other provisions hereof shall be and remain in full force
and effect.
C. DEFINITION OF TERMS. The term "Premises" includes the space leased hereby
and any improvements now or hereafter installed therein or attached thereto. The
term "Landlord" or any pronoun used in place thereof includes the plural as well
as the singular and the successors and assigns of Landlord. The term "Tenant" or
any pronoun used in place thereof includes the plural as well as the singular
and individuals, firms, associations, partnerships and corporations, and their
and each of their respective heirs, executors, administrators, successors and
permitted assigns, according to the context hereof, and the provisions of this
Lease shall inure to the benefit of and bind such heirs, executors,
administrators, successors and permitted assigns.
The term "person" includes the plural as well as the singular and
individuals, firms, associations, partnerships and corporations. Words used in
any gender include other genders. If there be more than one Tenant the
obligations of Tenant hereunder are joint and several. The paragraph headings of
the Lease are for convenience of reference only and shall have no effect upon
the construction or interpretation of any provision hereof.
D. TIME OF ESSENCE. Time is of the essence of this Lease and of each and all
of its provisions.
E. QUITCLAIM. At the expiration or earlier termination of this Lease, Tenant
shall execute, acknowledge and deliver to Landlord, within ten (10) days after
written demand from Landlord to Tenant, any quitclaim deed or other document
required by any reputable title company, licensed to operate in the State of
California, to remove the cloud or encumbrance created by this Lease from the
real property of which Tenant's Premises are a part.
F. INCORPORATION OF PRIOR AGREEMENTS; AMENDMENTS. This instrument along
with any exhibits and attachments hereto constitutes the entire agreement
between Landlord and Tenant relative to the Premises and this agreement and
the exhibits and attachments may be altered, amended or revoked only by an
instrument in writing signed by both Landlord and Tenant. Landlord and Tenant
agree hereby that all prior or contemporaneous oral agreements between and
among themselves and their agents or representatives relative to the leasing
of the Premises are merged in or revoked by this agreement
G. RECORDING. Neither Landlord nor Tenant shall record this Lease or a short
form memorandum hereof without the consent of the other.
H. AMENDMENTS FOR FINANCING. Tenant further agrees to execute any amendments
required by a lender to enable Landlord to obtain financing, so long as Tenant's
rights hereunder are not substantially affected.
I. ADDITIONAL PARAGRAPHS. Paragraphs 39 through 50 are added hereto and are
included as a part of this lease.
J. CLAUSES, PLATS AND RIDERS. Clauses, plats and riders, if any, signed by
Landlord and Tenant and endorsed or, or affixed to this Lease are a part hereof.
K. DIMINUTION OF LIGHT, AIR OR VIEW. Tenant covenants and agrees that no
diminution or shutting off of light, air or view by any structure which may be
hereafter erected (whether or not by Landlord) shall in any way affect his
Lease, entitle Tenant to any reduction of rent hereunder or result in any
liability of Landlord to Tenant.
IN WITNESS WHEREOF, Landlord and Tenant have executed and delivered this
Lease as of the day and year first above written.
LANDLORD: TENANT:
XXXX XXXXXXXXX SEPARATE PROPERTY TRUST MCAFFE ASSOCIATES,
A Delaware corporation
By /s/ Xxxx Xxxxxxxxx By /s/ [ILLEGIBLE]
------------------------------ ---------------------------
Xxxx Xxxxxxxxx, Trustee
Title CHIEF FINANCIAL OFFICER
-------------------------
XXXXXXX X. XXXXX SEPARATE PROPERTY TRUST Type or Print Name [ILLEGIBLE]
------------
By /s/ Xxxxxxx X. Xxxxx
------------------------------------
Xxxxxxx X. Xxxxx, Trustee
Page 8 of 8
Initials: /s/ [ILLEGIBLE]
Paragraphs 39 through 50 to Lease Agreement Dated April 13, 1993, By and
Between Xxxx Xxxxxxxxx and Xxxxxxx X. Xxxxx Separate Property Trusts, as
Landlord, and McAfee Associates, a Delaware corporation, as Tenant for
13,566+/- Square Feet of Space Located at 0000 Xxxxx Xxxxxx, Xxxxx 000, Xxxxx
Xxxxx, Xxxxxxxxxx.
39. BASIC RENT: In accordance with Paragraph 4(A) herein, the total aggregate
sum of FOUR HUNDRED TWENTY THOUSAND THREE HUNDRED THIRTY EIGHT AND 40/100
DOLLARS ($420,338.40), shall be payable as follows:
On July 1, 1993, the sum of FIVE THOUSAND ONE HUNDRED THIRTY ONE AND
10/100 DOLLARS ($5,131.10) shall be due, and a like sum due on the first day
of each month thereafter, through and including September 1, 1993.
On October 1, 1993, the sum of ELEVEN THOUSAND FIVE HUNDRED THIRTY
ONE AND 10/100 DOLLARS ($11,531.10) shall be due, and a like sum due on the
first day of each month thereafter, through and including June 1, 1994.
On July 1, 1994, the sum of TWELVE THOUSAND TWO HUNDRED NINE AND
40/100 DOLLARS ($12,209.40) shall be due, and a like sum due on the first day
of each month thereafter, through and including June 1, 1995.
On July 1, 1995, the sum of TWELVE THOUSAND EIGHT HUNDRED EIGHTY
SEVEN AND 70/100 DOLLARS ($12,887.70) shall be due, and a like sum due on the
first day of each month thereafter, through and including June 1, 1996; or
until the entire aggregate sum of FOUR HUNDRED TWENTY THOUSAND THREE HUNDRED
THIRTY EIGHT AND 40/100 DOLLARS ($420,338.40) has been paid.
40. "AS-IS" BASIS: Subject to Paragraph 41, it is hereby agreed that the
Premises leased hereunder is leased strictly on an "as-is" basis and in its
present condition, and in the configuration as shown on EXHIBIT B attached
hereto, and by reference made a part hereof. Subject to Paragraph 41 and
except for those interior improvements as shown on and included in EXHIBIT B
to be attached hereto, Landlord shall not be required to make, nor be
responsible for any cost, in connection with any repair, restoration, and/or
improvement to the Premises in order for this Lease to commence. Landlord
makes no warranty or representation of any kind or nature whatsoever as to
the condition or repair of the Premises, nor as to the use or occupancy which
may be made thereof.
41. PUNCH LIST: In addition to and notwithstanding anything to the contrary
in Paragraphs 5 and 40 of this Lease, Tenant shall have thirty (30) days
after the Commencement Date to provide Landlord with a "punch list"
pertaining to the interior improvements constructed by Landlord for Tenant.
Landlord shall have thirty (30) days thereafter (or longer if necessary,
provided Landlord is diligently pursuing the completion of the same) to
complete the "punch list" items without the Commencement Date of the Lease
and Tenant's obligation to pay rental thereunder being affected.
42. CONSENT: Whenever the consent of one party to the other is required
hereunder, such consent shall not be unreasonably withheld.
43. RULES AND REGULATIONS AND COMMON AREA: Subject to the terms and
conditions of this Lease and such reasonable Rules and Regulations as
Landlord may from time to time
Page 9 Initial: [ILLEGIBLE]
prescribe, Tenant and Tenant's employees, invitees and customers shall, in
common with other occupants of the Parcel/Building in which the premises are
located, and their respective employees, invitees and customers, and others
entitled to the use thereof, have the non-exclusive right to use the building
common areas, access roads, parking areas, and facilities provided and
designated by Landlord for the general use and convenience of the occupants
of the Parcel/Building in which the Premises are located, which areas and
facilities are referred to herein as "Common Area". This right shall
terminate upon the termination of this Lease. Landlord reserves the right
from time to time to make changes in the shape, size, location, amount and
extent of Common Area. Landlord further reserves the right to promulgate such
reasonable rules and regulations relating to the use of the Common Area, and
any part or parts thereof, as Landlord may deem appropriate for the best
interests of the occupants of the Parcel/Building. Such Rules and Regulations
may be amended by Landlord from time to time, with or without advance notice,
and all amendments shall be effective upon delivery of a copy to Tenant.
Landlord shall not be responsible to Tenant for the non-performance by any
other tenant or occupant of the Parcel/Building of any of said Rules and
Regulations; however, Landlord shall use its best efforts to reasonably
enforce such Rules and Regulations.
Landlord shall operate, manage and maintain the Common Area. The manner in
which the Common Area shall be maintained and the expenditures for such
maintenance shall be at the discretion of Landlord.
44. EXPENSES OF OPERATION, MANAGEMENT, AND MAINTENANCE OF THE COMMON AREAS OF
THE PARCEL AND BUILDING IN WHICH THE PREMISES ARE LOCATED: As Additional Rent
and in accordance with Paragraph 4D of this Lease, Tenant shall pay to
Landlord Tenant's proportionate share (calculated on a square footage or
other reasonable and equitable basis as calculated by landlord) of all
expenses of operation, management, maintenance and repair of the Common Areas
of the Parcel/Building including, but not limited to, license, permit, and
inspection fees; security; utility charges associated with exterior
landscaping and lighting (including water and sewer charges); all charges
incurred in the maintenance of landscaped areas, parking lots, sidewalks,
driveways, maintenance, repair and replacement of all fixtures and
electrical, mechanical and plumbing systems; exterior surfaces of the
buildings; salaries and employee benefits of personnel and payroll taxes
applicable thereto; supplies, materials, equipment and tools; the cost of
capital expenditures which have the effect of reducing operating expenses,
provided, however, that in the event Landlord makes such capital
improvements, Landlord may amortize its investment in said improvements
(together with interest at the rate of fifteen (15%) percent per annum on the
unamortized balance) as an operating expense in accordance with standard
accounting practices, provided, that such amortization is not at a rate
greater than the anticipated savings in the operating expenses.
"Additional Rent" as used herein shall not include Landlord's debt
repayments; interest on charges, expenses directly or indirectly incurred by
Landlord for the benefit of any other tenant; cost for the installation of
partitioning or any other tenant improvements; cost of attracting tenants;
depreciation; interest; or executive salaries.
As Additional Rent and in accordance with Paragraph 4D of this Lease, Tenant
shall pay its proportionate share (calculated on a square footage or other
reasonable and
Page 10 Initial: [ILLEGIBLE]
equitable basis as calculated by Landlord) of the cost of operation (including
common utilities), management, maintenance, and repair of the building
(including common areas such as lobbies, restrooms, janitor's closets, hallways,
elevators, mechanical and telephone rooms, stairwells, entrances, spaces above
the ceilings and janitorization of said common areas) in which the Premises are
located. The maintenance items herein referred to include, but are not limited
to, all windows, window frames, plate glass, glazing, truck doors, main plumbing
systems of the building (such as water drain lines, sinks, toilets, faucets,
drains, showers and water fountains), main electrical systems (such as panels
and conduits), heating and air-conditioning systems (such as compressors, fans,
air handlers, ducts, boilers, heaters), store fronts, roofs, downspouts,
building common area interiors (such as wall coverings, window coverings, floor
coverings and partitioning), ceilings, building exterior doors, skylights (if
any), automatic fire extinguishing systems, and elevators (if any); license,
permit and inspection fees; security, salaries and employee benefits of
personnel and payroll taxes applicable thereto; supplies, materials, equipment
and tools; the cost of capital expenditures which have the effect of reducing
operating expenses, provided, however, that in the event Landlord makes such
capital improvements, Landlord may amortize its investment in said improvements
(together with interest at the rate of fifteen (15%) percent per annum on the
unamortized balance) as an operating expense in accordance with standard
accounting practices, provided, that such amortization is not at a rate greater
than the anticipated savings in the operating expenses. Tenant hereby waives all
rights hereunder, and benefits of, subsection 1 of Section 1932 and Sections
1941 and 1942 of the California Civil Code and under any similar law, statute or
ordinance now or hereafter in effect.
45. MAINTENANCE OF THE PREMISES: In addition to, and notwithstanding anything to
the contrary in Xxxxxxxxx 0, Xxxxxxxx shall maintain the structural shell,
foundation, and roof structure (but not the interior improvements, roof
membrane, or glazing) of the building leased hereunder at Landlord's cost and
expense provided Tenant has not caused such damage, in which event Tenant shall
be responsible for 100 percent of any such costs for repair or damage so caused
by the Tenant. Notwithstanding the foregoing, a crack in the foundation, or
exterior walls that does not endanger the structural integrity of the building,
or which is not life-threatening, shall not be considered material, nor shall
Landlord be responsible for repair of same.
46. UTILITIES OF THE BUILDING IN WHICH THE PREMISES ARE LOCATED: As Additional
Rent and in accordance with Paragraph 4D of this Lease Tenant shall pay its
proportionate share (calculated on a square footage or other equitable basis as
calculated by Landlord) of the cost of all utility charges such as water, gas,
electricity, telephone, telex and other electronic communications service, sewer
service, waste pick-up and any other utilities, materials or services furnished
directly to the building in which the Premises are located, including, without
limitation, any temporary or permanent utility surcharge or other exactions
whether or not hereinafter imposed.
Landlord shall not be liable for and Tenant shall not be entitled to any
abatement or reduction of rent by reason of any interruption or failure of
utility services to the Premises when such interruption or failure is caused by
accident, breakage, repair, strikes, lockouts, or other labor disturbances or
labor disputes of any nature, or by any other cause, similar or dissimilar,
beyond the reasonable control of Landlord.
Page 11 Initial: [ILLEGIBLE]
Provided that Tenant is not in default in the performance or observance of any
of the terms, covenants or conditions of this Lease to be performed or observed
by it, Landlord shall furnish to the Premises between the hours of 8:00 am and
6:00 pm, Mondays through Fridays (holidays excepted) and subject to the rules
and regulations of the Building and the interior and exterior common areas
hereinbefore referred to, reasonable quantities of water, gas and electricity
suitable for the intended use of the Premises and heat and air-conditioning
required in Landlord's judgment for the comfortable use and occupation of the
Premises for such purposes. Tenant agrees that at all times it will cooperate
fully with Landlord and abide by all regulations and requirements that Landlord
may prescribe for the proper functioning and protection of the building heating,
ventilating and air-conditioning systems. Whenever heat generating machines,
equipment, or any other devices (including exhaust fans) are used in the
Premises by Tenant which affect the temperature or otherwise maintained by the
air-conditioning system, Landlord shall have the right to install supplementary
air-conditioning units in the Premises and the cost thereof, including the cost
of installation and the cost of operation and maintenance thereof, shall be paid
by Tenant to Landlord upon demand by Landlord. Tenant will not, without the
written consent of Landlord, use any apparatus or device in the Premises
(including, without limitation), electronic data processing machines or machines
using current in excess of 110 Volts which will in any way increase the amount
of electricity, gas, water or air-conditioning usually furnished or supplied to
premises being used as general office space, or connect with electric current
(except through existing electrical outlets in the Premises), or with gas or
water pipes any apparatus or device for the purposes of using electric current,
gas, or water. If Tenant shall require water, gas, or electric current in excess
of that usually furnished or supplied to premises being used as general office
space, Tenant shall first obtain the written consent of Landlord, which consent
shall not be unreasonably withheld and Landlord may cause an electric current,
gas or water meter to be installed in the Premises in order to measure the
amount of electric current, gas or water consumed for any such excess use. The
cost of any such meter and of the installation, maintenance and repair thereof,
all charges for such excess water, gas and electric current consumed (as shown
by such meters and at the rates then charged by the furnishing public utility);
and any additional expense incurred by Landlord in keeping account of electric
current, gas, or water so consumed shall be paid by Tenant, and Tenant agrees to
pay Landlord therefor promptly upon demand by Landlord.
It is understood that the utilities (water, sewer, gas and electric) for the
Leased Premises are currently in the name of another tenant (which tenant is
currently Kubota Pacific Computers) who leases space from Landlord in the
building in which Tenant's Leased Premises are located. During the time said
utilities remain in the name of another tenant, and not in the name of the
Landlord, the other tenant will submit an invoice to Tenant for its share of
utilities and Tenant shall make payment for said utilities to the other tenant
and not to Landlord. Said payments will be made by Tenant within five days after
presentation of said invoice. In the event the utilities are subsequently
transferred to Landlord's name, Landlord will notify Tenant of said change and
Landlord will inform Tenant to commence making the utility payments directly to
Landlord as of a future date. In no event will Tenant be liable for duplicate
bills for said utilities for the same service for the same period of time. For
example: If another tenant correctly bills Tenant for Electrical usage for the
period commencing 7/1/93 through 7/31/93 and Tenant pays said xxxx as stated
above, Landlord cannot xxxx Tenant for the same electrical usage for the same
period.
Page 12 Initial: [ILLEGIBLE]
47. PARKING: Tenant shall have the right to the nonexclusive use of fifty three
(53) parking spaces in the common parking area of the building. Tenant agrees
that Tenant, Tenant's employees, agents, representatives, and/or invitees shall
not use parking spaces in excess of said 53 parking spaces allocated to Tenant
hereunder. Landlord shall have the right, at Landlord's sole discretion, to
specifically designate the location of Tenant's parking spaces within the common
parking area of the building in the event of a dispute among the tenants
occupying the building and/or complex referred to herein, in which event Tenant
agrees that Tenant, Tenant's employees, agents, representatives and/or invitees
shall not use any parking spaces other than those parking spaces specifically
designated by Landlord for Tenant's use. Said parking spaces, if specifically
designated by Landlord to Tenant, may be relocated by Landlord at any time, and
from time to time. Landlord reserves the right, at Landlord's sole discretion,
to rescind any specific designation of parking spaces, thereby returning
Tenant's parking spaces to the common parking area. Landlord shall give Tenant
written notice of any change in Tenant's parking spaces. Tenant shall not, at
any time, park, or permit to be parked, any trucks or vehicles adjacent to the
loading area so as to interfere in any way with the use of such areas, nor shall
Tenant, at any time, park or permit the parking of Tenant's trucks and other
vehicles or the trucks and vehicles of Tenant's suppliers or others, in any
portion of the common areas not designated by Landlord for such use by Tenant.
Tenant shall not park nor permit to be parked, any inoperative vehicles or
equipment on any portion of the common parking area or other common areas of the
building. Tenant agrees to assume responsibility for compliance by its employees
with the parking provision contained herein. If Tenant or its employees park in
other than designated parking areas, then Landlord may charge Tenant, as an
additional charge, and Tenant agrees to pay Ten Dollars ($10.00) per day for
each day or partial day each such vehicle is parking in any area other than that
designated. Tenant hereby authorizes Landlord, at Tenant's sole expense, to tow
away from the building any vehicle belonging to Tenant or Tenant's employees
parked in violation of these provisions, or to attach violation stickers or
notices to such vehicles. Tenant shall use the parking area for vehicle parking
only and shall not use the parking areas for storage.
48. PERMITTED TRANSFERS: Notwithstanding anything to the contrary contained in
this Lease, Tenant may assign this Lease without Landlord's prior consent, or
without Landlord having the right to terminate the Lease as provided in
Paragraph 16 and without affecting Tenant's right to extend the Lease Term
pursuant to Paragraph 49:
(a) to a corporation which controls, is controlled by, or is under
common control with Tenant;
(b) in connection with a merger, consolidation or nonbankruptcy
reorganization of Tenant where Tenant's the surviving entity; or
(c) in connection with the sale of Tenant's business located at the
Premises (whether by sale of substantially all or the assets of Tenant at the
Premises or of a controlling interest in Tenant's stock), provided that prior to
such transfer, Tenant shall provide to Landlord sufficient evidence (as
reasonably determined by Landlord) that the net worth of the purchasing assignee
is equal to or greater than the net worth of Tenant as of the Commencement Date
or as of the date of the transfer, whichever is greater
Page 13 Initial: [ILLEGIBLE]
Each of the foregoing is referred to herein as a "Permitted
Assignment". With respect to any Permitted Assignment, Tenant shall give
Landlord prior written notice of the subject transfer, and the assignee or
surviving entity shall execute an instrument reasonably satisfactory to Landlord
assuming all of Tenant's obligations under this Lease.
Notwithstanding anything to the contrary contained in this Lease, it is
hereby agreed that such "Assignee" shall not have the right or be allowed to
install any tank farm for the storage or use of Hazardous Materials (as
hereinafter defined).
Any Permitted Assignment and future Amendment to this Lease (if any)
prior to or after the date of a Permitted Assignment shall not release Tenant
from any liability under this Lease.
49. OPTION TO EXTEND LEASE FOR THREE (3) YEARS: Provided Tenant is not in
default of any of the terms, covenants, and conditions of this Lease Agreement,
Landlord hereby grants to Tenant an Option to Extend this Lease Agreement for
an additional three (3) year period upon the following terms and conditions:
A. Tenant shall give Landlord written notice of Tenant's exercise of
this Option to Extend not later than January 2, 1996, in which event the Lease
shall be considered extended for an additional three (3) years upon the same
terms and conditions, absent this Paragraph 49, and subject to the rental set
forth below. In the event that Tenant fails to timely exercise Tenant's option
as set forth herein in writing, Tenant shall have no further Option to Extend
this Lease, and this Lease shall continue in full force and effect for the full
remaining term hereof, absent of this Paragraph 49.
B. The following summarizes the per square foot charge by period under
the Lease Agreement that would be applied to the Option to Extend:
Period Monthly Rate
07/01/96 - 06/30/97 $1.00 psf ($13,566.00)
07/01/97 - 06/30/98 $1.05 psf ($14,244.30)
07/01/98 - 06/30/99 $1.10 psf ($14,922.60)
C. The option rights of Tenant under this paragraph, and the
extended term thereunder, are granted for Tenant's personal benefit and may
not be assigned or transferred by Tenant, except to a parent corporation,
subsidiary corporation, or corporation with which Tenant merges or
consolidates or to whom Tenant sells all or substantially all of its assets
as provided for in Paragraph 48, either voluntarily or by operation of law,
in any manner whatsoever. In the event that Landlord consents to a sublease
or assignment under Paragraph 16, the option granted herein and any extended
term thereunder shall be void and of no force and effect, whether or not
Tenant shall have purported to exercise such option prior to such assignment
or sublease.
A. INCREASED SECURITY DEPOSIT: In the event the term of Tenant's
Lease is extended pursuant to this Paragraph 49, Tenant's security deposit
shall be increased to equal twice the Basic Rental due for the last month of
the extended term (i.e. $14,922.60 per month X 2 = $29,845.20).
50. HAZARDOUS MATERIALS: Landlord represents, to the best of its knowledge,
that as of the date of this Lease, there are no Hazardous Materials existing
on or about,
Page 14 Inital: [ILLEGIBLE]
-----------
under or beneath the Premises, or Building. Landlord and Tenant agree as follows
with respect to the existence or use of "Hazardous Materials" (as defined
herein) on, in, under or about the Premises and real property located beneath
said Premises (hereinafter collectively referred to as the "Property"):
As used herein, the term "Hazardous Materials" shall mean any hazardous or toxic
substance, material or waste which is or becomes subject to or regulated by any
local governmental authority, the State of California, or the United States
Government. The term "Hazardous Materials" includes, without limitation any
material or hazardous substance which is (i) listed under Article 9 or defined
as "hazardous" or "extremely hazardous" pursuant to Article 11 of Title 22 of
the California Administrative Code, Division 4, Chapter 30, (ii) listed or
defined as a "hazardous waste" pursuant to the Federal Resource Conservation and
Recovery Act, Section 42 U.S.C. Section 6901 et. seq., (iii) listed or defined
as a "hazardous substance" pursuant to the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. Section 9601 et. seq. (42 U.S.C.
Section 9601), (iv) petroleum or any derivative of petroleum, or (v) asbestos.
Tenant shall have no obligation to "clean up", reimburse, release, indemnify, or
defend Landlord with respect to any Hazardous Materials or wastes which Tenant,
prior to and during the term of the Lease, (or other parties on the portion of
the Premsises shown in Red on EXHIBIT B) did not store, dispose, or transport
in, use, or cause to be on the Property in violation of applicable law.
Tenant will be 100 percent liable and responsible for: (i) any and all "cleanup"
of said toxic waste and/or Hazardous Materials contamination which Tenant, its
agents, or its future subtenants and/or assignees, if any, (or other parties on
the portion of the Premises shown in Red on EXHIBIT B), does store, dispose, or
transport in, use or cause to be on the Property, and (ii) any claims by third
parties resulting from such Hazardous Materials contamination. Tenant shall
indemnify Landlord and hold Landlord harmless from any liabilities, demands,
costs, expenses and damages, including, without limitation, attorney fees
incurred as a result of any claims resulting from such Hazardous Materials
contamination.
Tenant also agrees not to use or dispose of any toxic waste or Hazardous
Materials on the Property, except for normal office materials and office
cleaning materials, without first obtaining Landlord's written consent. In the
event consent is granted by Landlord, Tenant agrees to complete compliance with
governmental regulations, and prior to the termination of said Lease Tenant
agrees to follow the proper closure procedures and will obtain a clearance from
the local fire department and/or the appropriate city agency. If Tenant uses
Hazardous Materials, Tenant also agrees to install, at Tenant's expense, such
toxic waste and/or Hazardous Materials monitoring devices as Landlord deems
necessary. It is agreed that the Tenant's responsibilities related to toxic
waste and Hazardous Materials will survive the termination date of the Lease and
that Landlord may obtain specific performance of Tenant's responsibilities under
this Paragraph 50.
Page 15 Inital: [ILLEGIBLE]
-----------
EXHIBIT B TO "CONSENT TO SUBLEASE"
SUMMARY OF AMOUNTS/CONSIDERATION TO BE PAID BY SUBTENANT
PERIOD * BASIC RENT R.E. TAXES PROP.INS. UTILITIES
BY MONTH TOTAL PSF TOTAL PSF TOTAL PSF TOTAL PSF
=============== = ======= = ======= = ======= = ======= = ======= = ======= = ======= = =======
10/1/97 - 12/31/97 || 23,799.60 /// 1.10 || /// || /// || ///
---------------------------------------------------------------------------------------------------------------------------------
1/1/98 - 4/30/98 || 24,881.40 /// 1.15 || /// || /// || ///
---------------------------------------------------------------------------------------------------------------------------------
5/1/98 - 12/31/98 || 32,454.60 /// 1.50 || /// || /// || ///
---------------------------------------------------------------------------------------------------------------------------------
1/1/99 - 12/31/99 || 32,454.00 /// 1.50 || /// || /// || ///
---------------------------------------------------------------------------------------------------------------------------------
1/1/00 - 12/31/00 || 33,535.80 /// 1.55 || /// || /// || ///
---------------------------------------------------------------------------------------------------------------------------------
|| /// || /// || /// || ///
---------------------------------------------------------------------------------------------------------------------------------
|| /// || /// || /// || ///
---------------------------------------------------------------------------------------------------------------------------------
PERIOD * LANDSCAPE MISCELLANEOUS MISCELLANEOUS TOTAL CHARGE PER PERIOD
BY MONTH TOTAL PSF TOTAL PSF TOTAL PSF TOTAL PSF
=============== = ======= = ======= = ======= = ======= = ======= = ======= = ======= = =======
10/1/97 - 12/31/97 || /// || /// || /// $71,398.50 /// 1.15
---------------------------------------------------------------------------------------------------------------------------------
1/1/98 - 4/30/98 || /// || /// || /// 99,525.60 /// 1.50
---------------------------------------------------------------------------------------------------------------------------------
5/1/98 - 12/31/98 || /// || /// || /// 389,448.00 /// 1.50
---------------------------------------------------------------------------------------------------------------------------------
1/1/99 - 12/31/99 || /// || /// || /// 402,429.60 /// 1.55
---------------------------------------------------------------------------------------------------------------------------------
1/1/00 - 12/31/00 || /// || /// || /// ///
---------------------------------------------------------------------------------------------------------------------------------
|| /// || /// || /// ///
---------------------------------------------------------------------------------------------------------------------------------
|| /// || /// || /// ///
---------------------------------------------------------------------------------------------------------------------------------
IF ADDITIONAL SPACE IS NEEDED, PLEASE DUPLICATE AND ATTACH
* IF PAYMENTS ARE REQUIRED OTHER THAN MONTHLY, PLEASE INCLUDE THESE
PAYMENTS AS WELL.
** IF SUBLEASE RENT PAID INCLUDES MISCELLANEOUS EXPENSES, PLEASE IDENTIFY
THE $ AMOUNT/PSF OF THE TOTAL RENT PAYMENT ALLOCATED TO BASIC RENT AND
EACH ADDITIONAL EXPENSE ITEM.
IS ANY ADDITIONAL CONSIDERATION (MONETARY AND/OR SERVICES) DUE UNDER THE
SUBLEASE?: YES NO X
----- -----
IF "YES", IDENTIFY TYPE CONSIDERATION AND DOLLAR VALUE ASSIGNED TO SAID
CONSIDERATION:
Type: Value: $
------------------------------- --------------------
Type: Value: $
------------------------------- --------------------
Type: Value: $
------------------------------- --------------------
Type: Value: $
------------------------------- --------------------
TENANT: SUBTENANT
MCCAFEE ASSOCIATES INTEGRATED TECHNOLOGY EXPRESS, INC.
By: /s/ [ILLEGIBLE] By: /s/ XXXXXX XXXX
------------------------------- ---------------------------------
Printed: [ILLEGIBLE] By: XXXXXX XXXX
--------------------------- ---------------------------------
Title: CFO Title: CEO
----------------------------- -----------------------------
IF ADDITIONAL SPACE IS NEEDED, PLEASE DUPLICATE AND ATTACH
[LOGO]
September 21, 1997
Mr. Praghat Goyal
McAFEE ASSOCIATES
0000 Xxxxxx Xxxxxx
Xxxxx Xxxxx, XX 00000
Re: CONSENT TO SUBLEASE TO INTEGRATED TECHNOLOGY EXPRESS, INC., A
CALIFORNIA CORPORATION FOR A PERIOD OF THIRTY NINE MONTHS COMMENCING
OCTOBER 1, 1997 AND TERMINATING DECEMBER 31, 2000
Gentlemen:
This letter is written with regard to your proposed sublease of approximately
21,636 square feet of space (as shown on EXHIBIT A attached hereto) (the "Sublet
Premises") of the 45,000 square feet of space leased by Tenant at 0000 Xxxxx
Xxxxxx, Xxxxx Xxxxx, Xxxxxxxxxx, under Lease Agreement dated May 10, 1993
("Master Lease"), by and between Xxxx Xxxxxxxxx Survivor's Trust (previously
known as the "Arrillaga Family Trust") and Xxxxxxx X. Xxxxx Separate Property
Trust ("Master Landlord"), and McAfee Associates, a Delaware corporation
("Tenant"), which Tenant is proposing to sublease to Integrated Technology
Express, Inc., a California corporation ("Subtenant") on the terms and
conditions set forth in the proposed Sublease dated September 17, 1997,
submitted by Tenant to Master Landlord on September 19, 1997 (the "Sublease").
Pursuant to Master Lease Paragraph 16 ("Assignment and Subletting"), Master
Landlord hereby approves Tenant's subleasing said space to Subtenant, under the
Sublease, subject to the following terms and conditions:
1. Master Landlord's Consent shall in no way void or alter any of the
terms of the Lease by and between Master Landlord and Tenant, nor shall
this Consent alter or diminish in any way Tenant's obligations to
Master Landlord.
2. Tenant shall not give Subtenant any rights or privileges in excess of
those given Tenant under the terms of the Master Lease.
3. Master Landlord has not reviewed the terms of any agreement between
Tenant and Subtenant, and in approving said Sublease, Master Landlord
is in no way approving any term, covenant or condition therein
contained, and said Sublease is subject and subordinate to all terms,
covenants and conditions of the Master Lease. Master Landlord
Initial: [ILLEGIBLE]
-----------
shall not be bound by any agreement other than the terms of the Master
Lease between Master Landlord and Tenant. In the event of conflict in
the terms, covenants and conditions between the Sublease and the Master
Lease, the terms, covenants and conditions of the Master Lease shall
prevail and take precedence over said Sublease. Master Landlord does
not make any warranties or representations as to the condition of the
Leased Premises or the terms of the Lease between Master Landlord and
Tenant. This Consent to Sublease shall in no event be construed as
consent to any future sublease agreement (including any extensions
and/or amendments to the current Sublease) between Tenant and
Subtenant, or any other party; and any future sublease agreement
(including any extensions and/or amendments to the current Sublease)
between Tenant and Subtenant, or any other party shall require the
prior written consent of Master Landlord.
4. A. It is agreed by all parties hereto that in the event Master
Landlord terminates the Master Lease, pursuant to any right therein
contained, said Sublease shall automatically terminate simultaneously
with the Master Lease. Notwithstanding anything to the contrary set
forth above, Master Landlord, at Master Landlord's sole option and
election, may choose to allow Subtenant to remain in possession of the
Sublet Premises leased under said Sublease subject to all terms,
covenants and conditions of said Master Lease by giving Subtenant
written notice prior to the effective date of termination of said
Master Lease, of Master Landlord's election to allow Subtenant to
remain in possession of the Sublet Premises in which event Subtenant
shall be entitled and obligated to remain in possession of the Sublet
Premises under the terms of said Sublease, subject to all terms,
covenants and conditions of the Master Lease, including, without
limitation to, payment of Basic Rent at the greater of: (i) the rate
provided for in the Master Lease, or (ii) the rate provided for in the
Sublease. Such election by Master Landlord shall not operate as a
waiver of any claims Master Landlord may have against Tenant. Following
such written notice by Master Landlord Subtenant shall then, as of the
effective date of said termination of said Master Lease, be liable to
and shall attorn in writing directly to Master Landlord as though said
Sublease were executed directly between Master Landlord and Subtenant;
provided, however, it is specifically agreed between the parties
hereto, that whether Master Landlord elects to allow Subtenant to
remain in possession of the Sublet Premises under the terms of the
Sublease, subject to the Master Lease, or allow said Sublease to
automatically terminate simultaneously with the Master Lease, Master
Landlord shall not, in any event, nor under any circumstances be
responsible or liable to Subtenant for (i) the return of any security
deposit paid by Subtenant to Tenant, nor shall Subtenant be given
credit for any prepaid rental or other monetary consideration paid by
Subtenant to Tenant under said Sublease; (ii) any other claim or damage
of any kind or nature whatsoever by reason of or in connection with
Master Landlord's termination of said Master Lease and/or Sublease; and
(iii) any default of Tenant under the Sublease.
B. In the event Master Landlord has terminated the Master Lease,
and has not elected, in writing prior to the effective date of
termination of said Master Lease, to allow
Initial: [ILLEGIBLE]
-----------
Subtenant to remain in the Sublet Premises as set forth above, said
Sublease shall terminate co-terminously with the effective termination
of the Master Lease automatically, without notice, and Subtenant and/or
Tenant, jointly and severally, shall surrender the Sublet Premises to
Master Landlord in good condition and repair as of the effective
termination of the Master Lease, with Master Landlord having no
obligation or liability whatsoever to Subtenant by reason of or in
connection with such early termination of the Master Lease. In the
event Subtenant and/or Tenant fails to timely surrender the Sublet
Premises to Master Landlord in good condition and repair as of the date
the Master Lease terminates, Subtenant and/or Tenant, jointly and
severally, shall be liable to Master Landlord in such event for all
damages, costs, claims, losses, liabilities, fees or expenses sustained
by Master Landlord, including, but not limited to, loss of rental
income, attorney's fees and court costs resulting from or in connection
with Subtenant's failure to timely vacate the Sublet Premises and
surrender the Sublet Premises to Master Landlord as of the effective
termination date of said Master Lease.
C. As a condition to Landlord's consent to the Sublease, by execution
of this Consent to Sublease, Subtenant hereby agrees to be bound by the
following provision in relation to both Tenant and Master Landlord:
If Master Landlord and Tenant jointly and voluntarily elect, for
any reason whatsoever, to terminate the Master Lease prior to the
scheduled Master Lease Termination Date, then this Sublease (if
then still in effect) shall terminate concurrently with the
termination of the Master Lease. Subtenant expressly acknowledges
and agrees that (1) the voluntary termination of the Master Lease
by Master Landlord and Tenant and the resulting termination of
this Sublease shall not give Subtenant any right or power to make
any legal or equitable claim against Master Landlord or Tenant,
including without limitation any claim for interference with
contract or interference with prospective economic advantage, and
(2) Subtenant hereby waives any and all rights it may have under
law or at equity to challenge such an early termination of the
Sublease, and unconditionally releases and relieves Master
Landlord and Tenant, and their officers, directors, employees and
agents, from any and all claims, demands, and/or causes of action
whatsoever (collectively, "Claims"), whether such matters are
known or unknown, latent or apparent, suspected or unsuspected,
foreseeable or unforeseeable, which Subtenant may have arising out
of or in connection with any such early termination of this
Sublease. Subtenant knowingly and intentionally waives any and all
protection which is or may be given by Section 1542 of the
California Civil Code which provides as follows: "A general
release does not extend to claims which the creditor does not know
or suspect to exist in his favor at the time of executing the
release, which if known by him must have materially affected his
settlement with debtor."
The term of this Sublease is therefore subject to early
termination. Subtenant's initials here below evidence
(a) Subtenant's consideration of and agreement to this
Initial: [ILLEGIBLE]
-----------
early termination provision, (b) Subtenant's acknowledgment that,
in determining the net benefits to be derived by Subtenant under
the terms of this Sublease, Subtenant has anticipated the
potential for early termination, and (c) Subtenant's agreement to
the general waiver and release of Claims above.
Initials: [ILLEGIBLE] Initials: [ILLEGIBLE]
------------ -----------
Subtenant Tenant
5. In consideration of Master Landlord's consent to the Sublease, Tenant
irrevocably assigns to Master Landlord, as security for Tenant's
obligations under this Lease, all rent and income payable to Tenant
under the Sublease. Therefore Master Landlord may collect all rent due
under the Sublease and apply it towards Tenant's obligations under the
Master Lease. Tenant and Subtenant agree to pay same to Master Landlord
upon demand without further consent of Tenant and Subtenant required;
provided, however, that until the occurrence of a default by Tenant
under the Master Lease, Tenant shall have the right to collect such
rent. Tenant hereby irrevocably authorizes and directs Subtenant, upon
receipt of a written notice from Master Landlord stating that a default
exists in the performance of Tenant's obligations under the Master
Lease, to pay to Master Landlord the rents due and to become due under
the Sublease. Tenant agrees that Subtenant shall have the right to rely
on any such statement and request from Master Landlord, and that
Subtenant shall pay such rents to Master Landlord without any
obligation or right to inquire as to whether such default exists and
notwithstanding any notice or claim from Tenant to the contrary. Tenant
shall have no right or claim against Subtenant or Master Landlord for
any such rents so paid by Subtenant to Master Landlord. It is further
agreed between the parties hereto that neither Tenant's assignment of
such rent and income, nor Master Landlord's acceptance of any payment
of rental or other sum due by Subtenant to Tenant under said sublease,
whether payable directly to Master Landlord or endorsed to Master
Landlord by Tenant, shall in any way nor in any event be construed as
creating a direct contractual relationship between Master Landlord and
Subtenant, unless the Parties expressly so agree in writing and such
acceptance shall be deemed to be an accommodation by Master Landlord
to, and for the convenience of, Tenant and Subtenant. Any direct
contractual agreement between Master Landlord and Subtenant must be in
writing.
6. Pursuant to the provisions of Paragraph 16 entitled "Assignment and
Subletting" of the Master Lease, Master Landlord hereby requires Tenant
to pay to Master Landlord, as Additional Rent, all rents and/or
additional consideration received by Tenant from said Sublease in
excess of the Basic Rent payable to Master Landlord in said Lease
(hereinafter referred to as "Excess Rent"). Tenant and Subtenant
acknowledge that any Excess Rent is owed to Master Landlord and Tenant
hereby agrees to pay any Excess Rent to Master Landlord as due under
said Sublease. Tenant and Subtenant represent and warrant to Master
Landlord that: (1) the information to be completed and provided by
Tenant and Subtenant on the attached EXHIBIT B "Summary of
Amounts/Consideration
Initial: [ILLEGIBLE]
to be Paid by Subtenant" accurately represents amounts to be paid by
Subtenant under said Sublease; (2) no additional consideration is due
Tenant under said Sublease, other than the additional consideration (if
any) identified on EXHIBIT B; and (3) no changes in the terms and/or
conditions of said Sublease shall be made without Master Landlord's
prior written approval.
7. This Paragraph 7 shall amend the provisions of Lease Paragraph 36
("Limitation of Liability"). Tenant and Subtenant, and all successors
and assigns, covenant and agree, that in the event of any actual or
alleged failure, breach or default hereunder, or under the Master
Lease, by Landlord, the sole and exclusive remedy shall be against
Landlord's interest in the Premises.
8. Tenant and Subtenant shall be jointly and severally responsible for the
obligations of Tenant under Lease Paragraph 50 ("Hazardous Materials").
9. This Consent is conditional upon Master Landlord's receipt of Master
Landlord's reasonable costs and attorney's fees, to which Master
Landlord is entitled under Paragraph 16 of the Master Lease. Tenant
shall pay such fees and costs to Landlord, pursuant to the invoice
provided to Tenant by Landlord with this Consent, upon execution of
this Consent by Tenant and Subtenant.
8. This Consent to Sublease shall only be considered effective, and Master
Landlord's consent to the Sublease given, when (i) Landlord receives
payment from Tenant of Landlord's costs, and (ii) this Letter
Agreement is executed by Master Landlord, Tenant, and Subtenant, and
Guarantors (if any) under the Master Lease.
Please execute this letter in the space provided below, obtain the signature of
Subtenant, and return all copies to our office no later than October 5, 1997. IN
THE EVENT TENANT FAILS TO RETURN THE FULLY EXECUTED DOCUMENTS TO LANDLORD BY
OCTOBER 5, 1997, THIS CONSENT SHALL BE AUTOMATICALLY RESCINDED, IN WHICH EVENT,
TENANT SHALL BE REQUIRED TO RESUBMIT ITS REQUEST IN THE EVENT TENANT DESIRES TO
GO FORWARD WITH SAID SUBLEASE. A fully executed copy will be returned to you
after execution by the Master Landlord.
Very truly yours,
XXXXX/XXXXXXXXX
By /s/ Xxxx Xxxxxxxxx
----------------------
Xxxx Xxxxxxxxx
(SIGNATURES CONTINUED ON FOLLOWING PAGE)
Initial: [ILLEGIBLE]
THE UNDERSIGNED Tenant and Subtenant do hereby jointly and severally agree to
the terms and conditions of this Consent to Sublease.
TENANT: SUBTENANT:
MCAFEE ASSOCIATES INTEGRATED TECHNOLOGY EXPRESS, INC
a California corporation a California corporation
By /s/ [ILLEGIBLE] By /s/ Xxxxxx Xxxx
------------------------ -----------------------------
Print Name [ILLEGIBLE] Print Name XXXXXX XXXX
---------------------- ------------------------
Title CFO Title CEO
--------------------- --------------------------
Initial: [ILLEGIBLE]
EXHIBIT A
[BLUEPRINT]
0000 XXXXX XXXXXX, XXXXX XXXXX
FIRST FLOOR
21,636 SQ. FT.
[FLOOR PLAN]
SECOND FLOOR
| | |
|< --- 13,566 Sq. Ft. --- > | < --- 9,798 Sq. Ft. --- >|
| | |
|
|
[FLOOR PLAN]
EXHIBIT "B"
EXHIBIT "C"
[LETTERHEAD]
July 17, 1997
Xx. Xxxx Xxxxxxx
McAFEE ASSOCIATES
0000 Xxxxxx Xxxxxx
Xxxxx Xxxxx, XX 00000
Re: CONSENT TO SUBLEASE , A CALIFORNIA
CORPORATION
Gentlemen:
This letter is written with regard to your proposed sublease of approximately
square feet of space (as shown on EXHIBIT A attached hereto) (the
"Sublet Premises") of the 45,000 square feet of space leased by Tenant at
0000 Xxxxx Xxxxxx, Xxxxx Xxxxx, Xxxxxxxxxx, under Lease Agreement dated May
10, 1993 ("Master Lease"), by and between Xxxx Xxxxxxxxx Survivor's Trust
(previously known as the "Arrillaga Family Trust") and Xxxxxxx X. Xxxxx
Separate Property Trust ("Master Landlord"), and McAfee Associates, a
Delaware corporation ("Tenant"), which Tenant is proposing to sublease to
Pipelinks, Inc., a California corporation ("Subtenant") on the terms and
conditions set forth in the proposed Sublease dated June 20, 1997, submitted
by Tenant to Master Landlord on June 27, 1997 (the "Sublease").
Master Landlord hereby approves Tenant's subleasing said space to Subtenant,
under the Sublease, subject to the following terms and conditions:
1. Master Landlord's Consent shall in no way void or alter any of the terms
of the Lease by and between Master Landlord and Tenant, nor shall this
Consent alter or diminish in any way Tenant's obligations to Master
Landlord.
2. Tenant shall not give Subtenant any rights or privileges in excess of
those given Tenant under the terms of the Master Lease.
3. Master Landlord has not reviewed the terms of any agreement between
Tenant and Subtenant, and in approving said Sublease, Master Landlord
is in no way approving any term, covenant or condition therein
contained, and said Sublease is subject and subordinate to all terms,
covenants and conditions of the Master Lease. Master Landlord shall not
be bound by any agreement other than the terms of the Master Lease
between Master Landlord and Tenant. In the event of conflict in the
terms, covenants and conditions between the Sublease and the Master
Lease, the terms, covenants and conditions of the Master Lease shall
prevail and take precedence over said Sublease. Master Landlord does
not make any warranties or representations as to the condition of the
Leased Premises or the terms of the Lease between Master Landlord and
Tenant. This Consent to Sublease shall in no event be construed as
consent to any future sublease
EXHIBIT "C"
Initial: [ILLEGIBLE]
-----------
agreement (including any extensions and/or amendments to the current
Sublease) between Tenant and Subtenant, or any other party; and any
future sublease agreement (including any extensions and/or amendments
to the current Sublease) between Tenant and Subtenant, or any other
party shall require the prior written consent of Master Landlord.
4. A. It is agreed by all parties hereto that in the event Master
Landlord terminates the Master Lease, pursuant to any right therein
contained, said Sublease shall automatically terminate simultaneously
with the Master Lease. Notwithstanding anything to the contrary set
forth above, Master Landlord, at Master Landlord's sole option and
election, may choose to allow Subtenant to remain in possession of the
Sublet Premises leased under said Sublease subject to all terms,
covenants and conditions of said Master Lease by giving Subtenant
written notice prior to the effective date of termination of said
Master Lease, of Master Landlord's election to allow Subtenant to
remain in possession of the Sublet Premises in which event Subtenant
shall be entitled and obligated to remain in possession of the Sublet
Premises under the terms of said Sublease, subject to all terms,
covenants and conditions of the Master Lease, including, without
limitation to, payment of Basic Rent at the greater of: (i) the rate
provided for in the Master Lease, or (ii) the rate provided for in the
Sublease. Such election by Master Landlord shall not operate as a
waiver of any claims Master Landlord may have against Tenant. Following
such written notice by Master Landlord Subtenant shall then, as of the
effective date of said termination of said Master Lease, be liable to
and shall attorn in writing directly to Master Landlord as though said
Sublease were executed directly between Master Landlord and Subtenant;
provided, however, it is specifically agreed between the parties
hereto, that whether Master Landlord elects to allow Subtenant to
remain in possession of the Sublet Premises under the terms of the
Sublease, subject to the Master Lease, or allow said Sublease to
automatically terminate simultaneously with the Master Lease, Master
Landlord shall not, in any event, nor under any circumstances be
responsible or liable to Subtenant for (i) the return of any security
deposit paid by Subtenant to Tenant, nor shall Subtenant be given
credit for any prepaid rental or other monetary consideration paid by
Subtenant to Tenant under said Sublease; (ii) any other claim or
damage of any kind or nature whatsoever by reason of or in connection
with Master Landlord's termination of said Master Lease and/or
Sublease; and (iii) any default of Tenant under the Sublease.
B. In the event Master Landlord has terminated the Master
Lease, and has not elected, in writing prior to the effective date
of termination of said Master Lease, to allow Subtenant to remain
in the Sublet Premises as set forth above, said Sublease shall
terminate co-terminously with the effective termination of the
Master Lease automatically, without notice, and Subtenant and/or
Tenant, jointly and severally, shall surrender the Sublet Premises
to Master Landlord in good condition and repair as of the effective
termination of the Master Lease, with Master Landlord having no
obligation or liability whatsoever to Subtenant by reason of or in
connection with such early termination of the Master Lease. In the
event Subtenant and/or Tenant fails to timely
Initial: [ILLEGIBLE]
-----------
surrender the Sublet Premises to Master Landlord in good condition and
repair as of the date the Master Lease terminates, Subtenant and/or
Tenant, jointly and severally, shall be liable to Master Landlord in
such event for all damages, costs, claims, losses, liabilities, fees or
expenses sustained by Master Landlord, including, but not limited to,
loss of rental income, attorney's fees and court costs resulting from
or in connection with Subtenant's failure to timely vacate the Sublet
Premises and surrender the Sublet Premises to Master Landlord as of the
effective termination date of said Master Lease.
C. As a condition to Landlord's consent to the Sublease, by
execution of this Consent to Sublease, Subtenant hereby agrees to
be bound by the following provision in relation to both Tenant and
Master Landlord:
If Master Landlord and Tenant jointly and voluntarily elect, for
any reason whatsoever, to terminate the Master Lease prior to
the scheduled Master Lease Termination Date, then this Sublease
(if then still in effect) shall terminate concurrently with the
termination of the Master Lease. Subtenant expressly
acknowledges and agrees that (1) the voluntary termination of
the Master Lease by Master Landlord and Tenant and the resulting
termination of this Sublease shall not give Subtenant any right
or power to make any legal or equitable claim against Master
Landlord or Tenant, including without limitation any claim for
interference with contract or interference with prospective
economic advantage, and (2) Subtenant hereby waives any and all
rights it may have under law or at equity to challenge such an
early termination of the Sublease, and unconditionally releases
and relieves Master Landlord and Tenant, and their officers,
directors, employees and agents, from any and all claims,
demands, and/or causes of action whatsoever (collectively,
"Claims"), whether such matters are known or unknown, latent or
apparent, suspected or unsuspected, foreseeable or
unforeseeable, which Subtenant may have arising out of or in
connection with any such early termination of this Sublease.
Subtenant knowingly and intentionally waives any and all
protection which is or may be given by Section 1542 of the
California Civil Code which provides as follows: "A general
release does not extend to claims which the creditor does not
know or suspect to exist in his favor at the time of executing
the release, which if known by him must have materially affected
his settlement with debtor."
The term of this Sublease is therefore subject to early
termination. Subtenant's initials here below evidence (a)
Subtenant's consideration of and agreement to this early
termination provision, (b) Subtenant's acknowledgment that, in
determining the net benefits to be derived by Subtenant under
the terms of this Sublease, Subtenant has anticipated the
potential for early termination, and (c) Subtenant's agreement
to the general waiver and release of Claims above.
Initials: [ILLEGIBLE] Initials: [ILLEGIBLE]
----------- -----------
Subtenant Tenant
Initial: [ILLEGIBLE]
-----------
5. In consideration of Master Landlord's consent to the Sublease, Tenant
irrevocably assigns to Master Landlord, as security for Tenant's
obligations under this Lease, all rent and income payable to Tenant
under the Sublease. Therefore Master Landlord may collect all rent due
under the Sublease and apply it towards Tenant's obligations under the
Master Lease. Tenant and Subtenant agree to pay same to Master Landlord
upon demand without further consent of Tenant and Subtenant required;
provided, however, that until the occurrence of a default by Tenant
under the Master Lease, Tenant shall have the right to collect such
rent. Tenant hereby irrevocably authorizes and directs Subtenant, upon
receipt of a written notice from Master Landlord stating that a default
exists in the performance of Tenant's obligations under the Master
Lease, to pay to Master Landlord the rents due and to become due under
the Sublease. Tenant agrees that Subtenant shall have the right to rely
on any such statement and request from Master Landlord, and that
Subtenant shall pay such rents to Master Landlord without any
obligation or right to inquire as to whether such default exists and
notwithstanding any notice or claim from Tenant to the contrary. Tenant
shall have no right or claim against Subtenant or Master Landlord for
any such rents so paid by Subtenant to Master Landlord. It is further
agreed between the parties hereto that neither Tenant's assignment of
such rent and income, nor Master Landlord's acceptance of any payment
of rental or other sum due by Subtenant to Tenant under said sublease,
whether payable directly to Master Landlord or endorsed to Master
Landlord by Tenant, shall in any way nor in any event be construed as
creating a direct contractual relationship between Master Landlord and
Subtenant, unless the Parties expressly so agree in writing and such
acceptance shall be deemed to be an accommodation by Master Landlord
to, and for the convenience of, Tenant and Subtenant. Any direct
contractual agreement between Master Landlord and Subtenant must be in
writing.
6. Pursuant to the provisions of Paragraph 16 entitled "Assignment and
Subletting" of the Master Lease, Master Landlord hereby requires
Tenant to pay to Master Landlord, as Additional Rent, all rents and/or
additional consideration received by Tenant from said Sublease in
excess of the Basic Rent payable to Master Landlord in said Lease
(hereinafter referred to as "Excess Rent"). Tenant and Subtenant
acknowledge that any Excess Rent is owed to Master Landlord and Tenant
hereby agrees to pay any Excess Rent to Master Landlord as due under
said Sublease. Tenant and Subtenant represent and warrant to Master
Landlord that: (1) the information to be completed and provided by
Tenant and Subtenant on the attached EXHIBIT B "Summary of
Amounts/Consideration to be Paid by Subtenant" accurately represents
amounts to be paid by Subtenant under said Sublease; (2) no additional
consideration is due Tenant under said Sublease, other than the
additional consideration (if any) identified on EXHIBIT B; and (3) no
changes in the terms and/or conditions of said Sublease shall be made
without Master Landlord's prior written approval.
Initial: [ILLEGIBLE]
7. This Consent is conditional upon Master Landlord's receipt of Master
Landlord's reasonable costs and attorney's fees, to which Master
Landlord is entitled under Paragraph 16 of the Master Lease. Tenant
shall pay such fees and costs to Landlord, pursuant to the invoice
provided to Tenant by Landlord with this Consent, upon execution of
this Consent by Tenant and Subtenant.
8. This Consent to Sublease shall only be considered effective, and Master
Landlord's consent to the Sublease given, when (i) Landlord receives
payment from Tenant of Landlord's costs, and (ii) this Letter Agreement
is executed by Master Landlord, Tenant, and Subtenant, and Guarantors
(if any) under the Master Lease.
Please execute this letter in the space provided below, obtain the signature of
Subtenant, and return all copies to our office no later than July 31, 1997. IN
THE EVENT TENANT FAILS TO RETURN THE FULLY EXECUTED DOCUMENTS TO LANDLORD BY
JULY 31, 1997, THIS CONSENT SHALL BE AUTOMATICALLY RESCINDED, IN WHICH EVENT,
TENANT SHALL BE REQUIRED TO RESUBMIT ITS REQUEST IN THE EVENT TENANT DESIRES TO
GO FORWARD WITH SAID SUBLEASE. A fully executed copy will be returned to you
after execution by the Master Landlord.
Very truly yours,
XXXXX/ARRILLAGA
By /s/ Xxxx Xxxxxxxxx
---------------------------
Xxxx Xxxxxxxxx
THE UNDERSIGNED Lessee and Subtenant do hereby jointly and severally agree to
the terms and conditions of this Consent to Sublease.
TENANT: SUBTENANT:
MCAFEE ASSOCIATES
a California corporation a California corporation
By /s/ [ILLEGIBLE] By /s/ [ILLEGIBLE]
--------------------------- -----------------------------
Print Name [ILLEGIBLE] Print Name
------------------- ---------------------
Title CFO Title CFO
------------------------ --------------------------
Initial: [ILLEGIBLE]
AMENDMENT TO SUBLEASE NO. 1
This AMENDMENT TO SUBLEASE NO. 1 is made and entered into this day of
September, 1998, by and between NETWORK ASSOCIATES, INC. (doing business as
Network Associates, Inc. for interstate business and known as Delaware
Network Associates, for California intrastate business), as successor-in
interest to MCAFEE ASSOCIATES, INC. a Delaware corporation, with its
principal offices at 0000 Xxxxxxx Xxxxxx, Xxxxx Xxxxx, XX 00000
("SUBLANDLORD") and INTEGRATED TECHNOLOGY EXPRESS, INC., a California
corporation with its principal offices at 0000 Xxxxx Xxxxxx, Xxxxx 000, Xxxxx
Xxxxx, XX 00000 ("SUBTENANT").
RECITALS
A. Whereas, by the SUBLEASE AGREEMENT ("SUBLEASE") dated September 17,
1997, SUBLANDLORD subleased to SUBTENANT approximately 21,636 square
feet of that certain 45,000 square foot building located at 0000
Xxxxx Xxxxxx, Xxxxx Xxxxx, the details of which are more particularly
set forth in said September 17, 1997 SUBLEASE, and
B. Whereas, it is now the desire of the parties hereto to amend the
SUBLEASE by increasing the square footage of the Premises by 9,798
square feet ("Increased Premises") effective as of the last day upon
which upon mutual execution hereof by all parties, (including Master
Landlord's consent thereto, of this AMENDMENT TO SUBLEASE NO. 1, and
C. Whereas, said Increased Premises are currently subleased to a third
party, PipeLinks, Inc. a California corporation, and PipeLinks, Inc.
desires to terminate its sublease agreement with SUBLANDLORD, and
D. Whereas, this AMENDMENT TO SUBLEASE NO. 1 is subject to and conditioned
upon the following: (i) the mutual execution by SUBLANDLORD and
PipeLinks of a Termination Agreement (approved and consented to in
writing by Master Landlord) which effectuates the termination of the
existing Sublease currently encumbering the subject Increased Premises
and (ii) execution hereof by the parties hereto and obtaining Master
Landlord's written consent to this AMENDMENT TO SUBLEASE NO. 1.
AGREEMENT
Therefore, SUBLANDLORD AND SUBTENANT agree as follows:
1) INCREASED PREMISES: Upon the Effective Date of this AMENDMENT TO
SUBLEASE NO. 1, the size of the Leased Premises described in said
SUBLEASE will be increased by 9,798 +/- square feet, or from 21,636
+/- square feet to 31,434 +/- square feet
1
of space. Total said Premises are more particularly shown within the
area outlined in Yellow on Exhibit A. The Increased Premises are hereby
subleased on an "as-is" basis, in its present condition and
configuration. It is specifically agreed, between the parties that
SUBLANDLORD shall not be required to make, nor be responsible for any
cost, in connection with any repairs, restoration, maintenance and/or
improvement to the Increased Premises throughout the term of the
SUBLEASE. Landlord makes no warranty or representation of any kind or
nature whatsoever as to the condition or repair of the Increased
Premises, nor as to the use or occupancy which may be made thereof.
2) BASIC RENT SCHEDULE: The monthly Basic Rent Schedule shall be adjusted
as follows:
On October 1, 1998, the sum of Forty-Nine Thousand One Hundred Ten and
60/100 Dollars ($49,110.60) shall be due and a like sum due on the
first day of each month thereafter through and including December 1,
1999. 10/1/98 - 12/31/99 $1.56/SQFT
On January 1, 2000, the sum of Fifty Thousand One Hundred Ninety Two
and 40/100 Dollars ($50,192.40) shall be due, and a like sum due on the
first day of each month thereafter through and including December 1,
2000. 1/1/2000 - 12/31/2000 $1.60 SQFT
3) SECURITY DEPOSIT: Tenant's Security Deposit under the SUBLEASE shall be
increased by $50,000.00 or from $100,000.00 to $150,000.00. Said
increased Security Deposit due under this Sublease of $50,000.00 is
payable upon SUBTENANT'S execution of this Amendment to SUBLEASE NO. 1.
4) PARKING: Effective upon the Effective Date of the Agreement,
SUBTENANT'S non-exclusive parking spaces shall be increased by 37
spaces or from 80 spaces to 117 spaces.
5) ALTERATIONS: SUBLANDLORD hereby reserves the right to require the
SUBTENANT to remove any alterations or improvements from the Premises
upon the expiration or earlier termination of the SUBLEASE, and to
repair all damage associated with said removal, and restore the
Premises to its original condition existing upon the Effective Date of
this Agreement.
6) NO OPTION TO EXTEND: SUBTENANT shall not have any option to extend the
Term of the SUBLEASE beyond its original Term (December 31, 2000).
7) MASTER LANDLORD'S CONSENT/EFFECTIVE DATE: The parties hereby agree and
acknowledge that this Agreement is subject to and conditioned upon
obtaining Master Landlord's written consent and shall not be effective
until the date that Master Landlord provides the parties with evidence
of its written consent hereto (the "Effective Date"). If required by
Master Landlord the parties agree to execute any and all documentation
reasonably requested by Master Landlord necessary to effect this
AMENDMENT TO SUBLEASE NO. 1.
8) BROKERAGE FEE: Upon mutual execution of this Agreement, SUBTENANT shall
deposit with Catalyst Real Estate Group CRESA, (Catalyst) the sum of
Twenty Six
2
Thousand Nine Hundred Eighty Three and 69/100 Dollars ($26,983.69) as
the real estate commission due and payable in connection with this
transaction. Catalyst shall hold the deposit check uncashed until the
Effective Date of this Agreement. SUBTENANT agrees and acknowledges
that upon the Effective Date of this Agreement, said real estate fee
shall be deemed due and payable to Catalyst, and Catlyst is instructed
and fully entitled to cash said deposit check and return said real
estate commission.
Except as modified herein, all other terms, covenants, and conditions of said
September 17, 1997 Sublease Agreement shall remain in full force and effect.
In witness whereof, Landlord and Tenant have executed this Amendment to Sublease
No. 1 to Lease as of the day and year last written below.
SUBLANDLORD SUBTENANT
NETWORK ASSOCIATES, INC., INTEGRATED TECHNOLOGY EXPRESS, INC.
(doing business as Network Associates, a California corporation
Inc. for Interstate business and known as
Delaware Network Associates, for
California intrastate business)
By By
------------------------------- -------------------------------
Title Title
--------------------------- ---------------------------
Date Date
---------------------------- ----------------------------
3
