Exhibit 10.23
SUBLEASE AGREEMENT
BETWEEN
MYLEX CORPORATION
SUBLANDLORD
AND
DOVATRON INTERNATIONAL, INC.
SUBTENANT
Dated as of
February 1, 1999
SUBLEASE AGREEMENT
This Sublease Agreement (the "Sublease"), dated February 1, 1999 for
reference, is entered into between MYLEX CORPORATION, a Delaware corporation
("Sublandlord"), and DOVATRON INTERNATIONAL, INC., a Delaware corporation
("Subtenant").
RECITALS
A. Sublandlord is the tenant of premises located at 00000 Xxxxxxxxx
Xxxxxxxxx, Xxxxxxx, Xxxxxxxxxx ("Master Premises") pursuant to the terms of that
certain Industrial Lease, dated April 15, 1991, between Metropolitan Life
Insurance Company, as landlord, and Sublandlord ("Original Lease"), as amended
by that certain Lease Agreement - Building D, Ardenwood Corporate Park, dated
December 9, 1995, between Logitech, Inc., as successor in interest to
Metropolitan Life Insurance Company, and Sublandlord ("First Amendment"), and by
Amendment to Industrial Lease, dated February 26, 1996, between Logitech, Inc.
and Sublandlord ("Second Amendment") (collectively, the "Master Lease").
B. AMB Property, L.P., a Delaware limited partnership ("Landlord"), is
the successor in interest in the Master Lease to Logitech, having acquired its
interest by MESNE assignments from The Xxxxxx Group of Companies, Inc. and APT
Ardenwood, Inc., a Delaware corporation.
C. Sublandlord and Subtenant are, concurrently herewith, entering into
that certain Mylex/Dovatron Manufacturing Agreement, dated February 1, 1999 (the
"Manufacturing Agreement"), pursuant to which Subtenant is to produce, assemble
and distribute certain products for Sublandlord.
D. To effectuate the purposes of the Manufacturing Agreement, Subtenant
desires to sublease from Sublandlord, and Sublandlord is willing to sublease to
Subtenant, a portion of the Master Premises pursuant to this Sublease.
AGREEMENT
1. SUBLEASE. On and subject to the terms and conditions of this Sublease,
Sublandlord hereby subleases to Subtenant, and Subtenant hereby subleases from
Sublandlord, that portion of the Master Premises outlined on EXHIBIT A attached
hereto, containing approximately 31,980 rentable square feet (the "Subleased
Premises") and having an address of 0000 Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxxxx.
1.1 SHARED FACILITIES. Subtenant shall have the right to use the
kitchen/cafeteria and restroom areas within the portion of the Master Premises
retained by Sublandlord, as marked on EXHIBIT A. Such usage shall be subject to
Sublandlord's reasonable rules and regulations to promote cleanliness, avoid
waste and maintain security. Neither party shall post company information within
these areas. The preceding restriction shall not prohibit the posting of such
notices as may be required by law.
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1.2 SHARED ACCESS. Each of Sublandlord and Subtenant acknowledges
that access to each other's respective portion of the Master Premises will be
required from time to time in order for such party to discharge its
responsibilities under the Manufacturing Agreement and this Sublease.
Accordingly, each party shall appoint an executive officer (the "Facility
Executive") who shall be responsible for designating those employees who have
shall have shared access rights. Employees having shared access rights shall be
provided with the requisite pass-keys and/or security codes necessary to perform
their respective responsibilities within the other party's premises. Each party
shall have the right to establish reasonable rules for the purposes of
maintaining security, safety and good manufacturing practices within its
premises, and to revoke the access rights of any of the other party's employees
who fails to observe such rules. Nothing herein shall limit Subtenant's access
to the kitchen/cafeteria and restroom areas pursuant to section 1.1 above, or
Sublandlord's access to the Subleased Premises pursuant to the provisions of
this Sublease and of the Master Lease incorporated herein.
1.3 EXPANSION PREMISES. Sublandlord grants to Subtenant a first right
of negotiation with respect to the "RMA Area" shown on EXHIBIT A and containing
approximately 3,700 rentable square feet (the "Expansion Premises"). In the
event that Sublandlord determines, in its sole discretion, that it no longer
requires such area for its operations, Sublandlord shall give Subtenant written
notice offering to sublease the Expansion Premises to Subtenant and specifying
the economic and other terms on which such sublease is to be made. Subtenant
shall have five business days after receipt of Sublandlord's notice to notify
Sublandlord of its interest in subleasing such space. If Subtenant timely
notifies Sublandlord of its desire to sublease the Expansion Premises,
Sublandlord and Subtenant shall negotiate in good faith the terms of such
sublease which shall be the terms set forth in Sublandlord's notice offering the
Expansion Premises to Subtenant (subject to further negotiation) and otherwise
the terms of this Sublease. If, within 30 days after Sublandlord's notice
offering the Expansion Premises to Subtenant, the parties reach agreement on the
terms by which Subtenant shall sublease the Expansion Premises, then Sublandlord
and Subtenant shall execute an amendment to this Sublease evidencing such
agreement. If, however, the parties fail to reach agreement within such 30 day
period, then this first right of negotiation shall terminate and Sublandlord
shall be free to re-occupy or sublease the Expansion Premises on any terms it
may desire. This first right of negotiation is personal to Subtenant and may not
be transferred to any person or entity, whether voluntarily or by operation of
law, without Sublandlord's prior written consent. Sublandlord may grant or deny
its consent to any such transfer in its sole discretion. This first right of
negotiation shall be void if Subtenant is in default under this Sublease at any
time during or after the 30 day negotiation period and prior to the date on
which the Expansion Premises is to be incorporated into the Subleased Premises.
1.4 PARKING. Subtenant shall have the right to use, on a non-
exclusive basis, Subtenant's Percentage Share of the number of vehicle parking
spaces made available by Landlord for parking by Sublandlord within the Common
Areas (as defined in the Master Lease). Subject to Landlord's consent, Subtenant
shall have the right to designate up to four of such spaces located immediately
adjacent to the entrance of the Subleased Premises for "visitor parking". Use of
the parking areas shall be subject to such reasonable rules and regulations as
Sublandlord may require.
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1.5 SUBLANDLORD'S RESERVED RIGHTS. Sublandlord reserves the right to
use the exterior walls (other than the Xxxxxx Drive frontage of the Premises),
floor, foundation and roof in, above and below the Subleased Premises, and
retains the right to install, maintain, use, repair and replace structural
elements and utility equipment, including, but not limited to, pipes, ducts,
conduits, wires and appurtenant fixtures in, under, over and through the
Subleased Premises, in locations that will not materially interfere with
Subtenant's use of the Subleased Premises and to relocate any pipes, ducts,
conduits, wires and appurtenant meters and equipment located within or adjacent
to the Subleased Premises and to alter or relocate any shared or common areas or
facilities. No easement for air, light or view is granted by this Sublease.
Subtenant is prohibited from having access to or using the roof of the Subleased
Premises for any purpose.
2. TERM. The term of this Sublease ("Term") shall commence on February
1, 1999 (the "Commencement Date"), and shall expire on April 14, 2001 (the
"Expiration Date"), unless sooner terminated in accordance with the terms of
this Sublease.
2.1 FAILURE TO DELIVER POSSESSION. If, for any reason beyond
Sublandlord's reasonable control, Sublandlord fails to deliver possession of the
Subleased Premises to Subtenant on the Commencement Date, then (a) the Term
shall commence on a revised Commencement Date occurring on the date that
Sublandlord delivers possession of the Subleased Premises to Subtenant, (b)
Subtenant shall have no obligation to pay rent prior to such revised
Commencement Date, (c) the Term shall not be extended as a result of such delay,
(d) this Sublease shall otherwise remain valid and enforceable in accordance
with its terms, and (e) Sublandlord shall have no liability whatsoever for such
failure to deliver the Subleased Premises on the originally scheduled
Commencement Date.
2.2 EARLY ENTRY. If Subtenant is given permission to enter the
Subleased Premises prior to the Commencement Date, such entry shall be on all
the terms of this Sublease except that no rent shall be payable by Subtenant
during such period of entry (other than reimbursement of expenses actually
incurred by Sublandlord and payment of damages or other liability for which
Subtenant becomes liable under this Sublease as a result of such entry).
2.3 EXTENSION OF TERM; RENEWAL. Subtenant acknowledges that
Sublandlord has no obligation to extend the term of the Master Lease beyond its
expiration date of April 14, 2001. However, in the event that Sublandlord, in
its sole discretion and without any obligation to Subtenant to do so, either
extends the term of the Master Lease or enters into a new lease for the Master
Premises including the Subleased Premises, Sublandlord agrees to give to
Subtenant written notice of such extension or new lease as soon thereafter as
practicable. Sublandlord and Subtenant shall thereafter negotiate in good faith
for the extension of this Sublease (including adjustments to the rent and other
economic terms) or a new sublease for the Subleased Premises, subject to
Landlord's consent. If Sublandlord and Subtenant fail to reach agreement on the
terms of such Sublease extension or new sublease within 30 days after
Sublandlord's notice to Subtenant, then the first right of negotiation granted
to Subtenant hereunder shall terminate automatically and this Sublease shall
expire in accordance with its terms. This first right of negotiation is personal
to Subtenant and may not be transferred to any person or entity, whether
voluntarily or by operation of law, without Sublandlord's prior written consent.
Sublandlord may
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grant or deny its consent to any such transfer in its sole discretion. This
first right of negotiation shall be void if Subtenant is in default under this
Sublease at any time during or after the 30 day negotiation period and prior to
the commencement date of any such extended or new Sublease term. If Sublandlord
elects not to extend the term of the Master Lease or to enter into a new lease
for the Master Premises (including the Subleased Premises), Subtenant shall be
entitled to negotiate a direct lease of the Subleased Premises from Landlord.
3. RENT.
3.1 BASE RENT. During the Term, Subtenant shall pay to Sublandlord
monthly installments of Rent as follows:
Period Monthly Rent Per Sq. Foot
---------------------------- ------------ ------------
Commencement Date - 04/14/99 $23,057.58 $.721
04/15/99 - 04/14/00 $23,761.14 $.743
04/15/00 - 04/14/01 $24,464.70 $.765
the monthly installments of Rent shall be paid on or before the first day of
each calendar month during the Term in accordance with section 3 of the Master
Lease.
3.2 ADDITIONAL RENT. In addition to the monthly installments of
Rent, Subtenant shall be responsible for payment of certain expenses, as
provided below:
(a) SUBTENANT'S PERCENTAGE SHARE. As used in this Sublease, the
term "Subtenant's Percentage Share" shall mean 43.3%, notwithstanding any
different result that may be obtained by a re-measurement of the Subleased
Premises in its configuration as existing on the date of this Sublease.
(b) TAXES AND COMMON EXPENSES. Subtenant shall pay Subtenant's
Percentage Share of all Taxes and Common Expenses charged to Sublandlord by
Landlord for the Master Premises. Payment shall be made on or before the first
day of each calendar month during the Term in accordance with section 4 of the
Master Lease. Sublandlord shall furnish Subtenant with a copy of Landlord's
estimate of Taxes and Common Expenses and an annual statement showing
Subtenant's Percentage Share of the actual Taxes and Common Expenses charged by
Landlord to Sublandlord during the preceding Computation Year. Such estimate and
annual statement shall be provided promptly upon Sublandlord's receipt of
Landlord's Tax Statement and Landlord's Expense Statement. The annual statement
shall also disclose any underpayment or overpayment by Subtenant which shall be
paid by Subtenant or credited or remitted to Subtenant as provided in the
applicable provisions of section 4 of th Master Lease.
(c) BUILDING EXPENSES. Subtenant shall pay Subtenant's
Percentage Share of all expenses incurred by Sublandlord in the general
operation, maintenance, repair and replacement of the Master Premises (the
"Building Expenses").
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(i) BUILDING EXPENSES DEFINED. Building Expenses shall
include, without limitation, expenses incurred for gas, water and electric
utilities to the extent not separately metered to the Subleased Premises;
casualty insurance maintained by Sublandlord on the Master Premises; repair,
maintenance and replacement expenses of the Master Premises and its fixtures
(including, for example, HVAC) which are incurred, in Sublandlord's reasonable
judgment, in the discharge of Sublandlord's obligations under the Master Lease;
salaries, fringe benefits and payroll taxes for Sublandlord's facilities staff;
and janitorial, refuse disposal and security services (to the extent provided by
Sublandlord). Building Expenses shall not include (a) expenses to the extent
reimbursable to Sublandlord by insurance or warranty; (b) expenses, penalties or
fines incurred or imposed due to Sublandlord's violation of the Master Lease,
this Sublease or the provisions of applicable law; or (c) expenses otherwise
included in the definition of Taxes or Common Expenses. If Subtenant's use of
utilities or other services rendered by Sublandlord exceeds Sublandlord's
historical experience or if such use or demand is reasonably determined and
demonstrated by Sublandlord to be disproportionate to Subtenant's Percentage
Share, then Sublandlord shall have the right to reallocate such expenses,
install submeters or, if practicable, require Subtenant to contract for such
services directly, in order to allocate such expenses more consistent with the
parties' respective requirements and use thereof. Notwithstanding anything
herein to the contrary, Subtenant's Percentage Share of Building Expenses shall
be deemed to include 100% of all submetered utility services serving the
Subleased Premises exclusively and billed to Sublandlord by the service
provider.
(ii) PAYMENT. Within five business days after the beginning
of each calendar quarter, Sublandlord will provide Subtenant with its estimate
of Subtenant's Percentage Share of Building Expenses for the ensuing calendar
quarter. Subtenant shall pay Subtenant's Percentage Share of Building Expenses
in advance, in equal monthly installments (i.e., one-third of the quarterly
estimate) on or before the 10th day of each calendar month during the Term. If
Sublandlord is delayed in furnishing its estimate, Subtenant shall continue to
pay, in monthly installments, the amount of Subtenant's Percentage Share of
Building Expenses based on the most recent estimate received by Subtenant until
a revised estimate is furnished by Sublandlord. Each revised estimate issued by
Sublandlord more than five business days after the beginning of a calendar
quarter shall become effective at the beginning of the next following calendar
quarter. Within a reasonable time after the end of each calendar quarter,
Sublandlord will provide to Subtenant a statement (the "Reconciliation
Statement") comparing Subtenant's Percentage Share of Building Expenses actually
incurred against the estimated payments theretofore received by Sublandlord from
Subtenant for the period covered by the Reconciliation Statement. The
Reconciliation Statement may include actual Building Expenses incurred for any
prior calendar quarter provided that such expenses have not been included in any
prior Reconciliation Statement. If the Reconciliation Statement shows an
overpayment by Subtenant of Subtenant's Percentage Share of Building Expenses,
the amount of such overpayment shall be credited against the next payment of
such expenses that becomes due. If the Reconciliation Statement shows an
underpayment by Subtenant of Subtenant's Percentage Share of Building Expenses,
the amount of such underpayment shall be paid by Subtenant within 30 days after
presentation of the Reconciliation Statement. Subtenant shall have the right, on
reasonable advance notice, to review Sublandlord's records and invoices used in
determining the payment due from Subtenant. Each Reconciliation Statement shall
be deemed final and binding on
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Subtenant 30 days after presentation unless prior thereto Subtenant notifies
Sublandlord of any objections it has. Subtenant's Percentage Share of Building
Expenses for any partial calendar month during the Term shall be subject to
proration based on the actual number of days in such partial month.
3.3 SPECIAL SERVICES. All other services required by Subtenant and
not expressly provided by Sublandlord under this Sublease (e.g., telephone
service, additional janitorial services) shall be contracted and paid by
Subtenant directly with and to the provider of such service. With respect to any
services required by Subtenant that require access to or modification of the
Subleased Premises, any building systems or utilities or areas adjacent to the
Subleased Premises, Subtenant shall give reasonable advance notice to
Sublandlord. All work or services required by Subtenant and not provided by
Sublandlord shall be performed by properly licensed contractors who have been
reasonably approved by Sublandlord. Special services provided by Sublandlord's
facilities maintenance department, at the request and with the approval of
Subtenant's Facility Executive, shall be charged at an hourly rate set by
Sublandlord from time to time.
3.4 ADDITIONAL RENT. All payments of monthly Rent, Tenant's
Percentage Share of Taxes, Common Expenses and Building Expenses, interest, late
charges and all other sums of money payable by Subtenant to Sublandlord under
this Sublease shall constitute "rent" under this Sublease. The obligation of
Subtenant to pay rent is an independent covenant.
4. PERMITTED USE. Subtenant shall use the Subleased Premises solely for
the design, testing, light assembly and distribution of electronic components,
and related administrative and office uses, and for no other purpose without the
prior written consent of Sublandlord, which consent Sublandlord may not withhold
unreasonably.
5. CONDITION OF SUBLEASED PREMISES.
5.1 ACCEPTANCE. Subtenant acknowledges that it has inspected the
Subleased Premises and accepts it in its existing "AS IS" condition. Neither
Sublandlord nor anyone acting on its behalf has made any representation or
warranty concerning the condition, operation or suitability of the Subleased
Premises that is not expressly set forth in this Sublease. Sublandlord warrants
that, to Sublandlord's knowledge, the Master Premises is in compliance with
applicable law and Sublandlord has received no notice from any governmental
authority having jurisdiction that the Master Premises or any part thereof does
not comply with applicable law or which otherwise requires any work to be done
on or about the Master Premises. As used herein, the term "Sublandlord's
knowledge" means the actual knowledge of Sublandlord's Senior Facilities Manager
at the date of this Sublease, without any investigation or inquiry. Subtenant
shall have no liability under this Sublease for any alteration required by any
governmental authority to be made to the Subleased Premises to bring it into
compliance with applicable law unless the requirement for such alteration is
imposed in response to or as a result of any use, alteration or improvement of
the Subleased Premises by Subtenant. Sublandlord's warranty in this paragraph
does not apply to any non-compliance or damage caused by (or need for repairs,
alterations,
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modifications or improvements resulting from) any activities of Subtenant, its
employees, agents, contractors or invitees in, on or about the Subleased
Premises.
5.2 MODIFICATIONS BY SUBLANDLORD. Sublandlord shall have no
obligation to make any repair, alteration or modification to the Subleased
Premises except as expressly set forth in this Sublease. Sublandlord agrees, at
its expense, to: (a) re-key all mechanical locks and re-program all electronic
locks serving the Subleased Premises; (b) provide four keys per lockable door in
the Subleased Premises and one electronic access card per Subtenant employee,
and (c) install one additional controller and additional card readers pursuant
to a schedule that is mutually acceptable to Sublandlord and Subtenant.
Sublandlord may impose a reasonable charge to replace any lost keys or access
cards. Except as provided above, Sublandlord agrees not to modify, remove,
disable or replace the mechanical or electronic locks or access devices without
providing reasonable advance notice to Subtenant.
5.3 ALTERATIONS BY SUBTENANT. All alterations required by Subtenant
to be made to the Subleased Premises shall be made at Subtenant's expense. Such
alterations shall be made in accordance with the applicable provisions of the
Master Lease and shall be subject to the prior written consent of Sublandlord
and Landlord. Subtenant shall have the right to participate in Sublandlord's
effort to obtain the consent of Landlord to any such alteration requested by
Subtenant.
5.4 REPAIR AND MAINTENANCE. Sublandlord shall maintain and repair (or
use reasonable efforts to cause Landlord to maintain and repair, to the extent
required of Landlord under the Master Lease) the shared access kitchen/cafeteria
and bathroom areas, exterior doors and windows, and all utility and life-safety
systems serving the Subleased Premises, including, without limitation, the HVAC
systems and lighting fixtures, and shall provide janitorial service to the
Subleased Premises. The level of all such services shall be commensurate with
the level of such services provided by Sublandlord for its retained portion of
the Master Premises. Expenses incurred by Sublandlord hereunder shall constitute
a Building Expense that is reimbursable by Subtenant under section 3.2 of this
Sublease. Notwithstanding anything in this Sublease to the contrary, Subtenant
shall reimburse Sublandlord, within 15 days after presentation of an invoice,
for all costs incurred by Sublandlord to repair damage caused by the negligent
or willful act or omission of Subtenant or any of its employees, agents,
contractors or invitees. Under no circumstances shall Subtenant make any repairs
or modifications to the Master Premises structure or to the mechanical,
electrical or heating, ventilating or air conditioning systems of the Master
Premises or Subleased Premises unless such repairs or modifications are
previously approved in writing by Sublandlord. Sublandlord reserves the sole
right to make repairs and modifications to such systems. Sublandlord agrees to
give Subtenant reasonable advance notice of any work by Sublandlord or its
contractors to the Master Premises which is reasonably anticipated to cause an
interruption to the utility services to the Subleased Premises or which is
reasonably anticipated to interfere with the conduct of Subtenant's business in
the Subleased Premises. Sublandlord will use reasonable efforts to coordinate
such work with Subtenant's Facility Executive in order to minimize any
interference with the conduct of Subtenant's business in the Subleased Premises.
There shall be no abatement of rent with respect to, and Sublandlord shall not
be liable for, any injury to or interference with Subtenant's business or its
leasehold interest arising from any repair,
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maintenance, alteration or improvement in or to any portion of the Subleased
Premises, Master Premises or Common Area, or in or to the fixtures,
appurtenances and equipment therein.
5.5 SURRENDER. Upon the expiration or sooner termination of this
Sublease, Subtenant shall vacate and surrender the Subleased Premises in the
same condition as received, except for normal wear and tear, damage by casualty
or condemnation, and approved alterations, if any. Subtenant shall remove or
cause to be removed from the Subleased Premises and Master Premises, prior to
the termination date and at Subtenant's expense, all of Subtenant's personal
property, trade fixtures, signs and any alterations, additions or improvements
made to the Subleased Premises by Subtenant for which Sublandlord's consent was
not obtained. Subtenant shall repair all damage to the Subleased Premises and
the Master Premises caused by or in connection with the removal of such
articles, including, without limitation, repairing the floor and patching and
painting the walls where required by Sublandlord to Sublandlord's reasonable
satisfaction, and shall deliver the Subleased Premises to Sublandlord broom
clean and free of debris. Subtenant shall indemnify Sublandlord against any loss
or liability resulting from delay by Subtenant in so surrendering the Subleased
Premises, including, without limitation, any claims made by any succeeding
tenant founded on such delay and the costs of removing, storing and disposing of
any property remaining at the Subleased Premises at the termination date of this
Sublease. Any property so remaining at the Subleased Premises shall be deemed to
have been abandoned by Subtenant and become the property of Sublandlord which
Sublandlord may dispose of in any manner without any liability to Subtenant
whatsoever. Sublandlord may retain any proceeds it may receive from the sale or
disposal of such property.
6. SECURITY. In addition to the mechanical locks and electronic access
devices which are a part of the Subleased Premises, Sublandlord has contracted
with an independent security guard service to provide general security for the
Master Premises. The security guard or guards shall have access to the Subleased
Premises. Sublandlord makes no representation that such security guard service
is adequate for the protection of Subtenant or its employees, agents,
contractors or invitees, and may alter, replace or terminate the security guard
service contract at any time in its discretion. By providing such security guard
service, Sublandlord is not assuming any liability or responsibility for any
property damage or personal injury suffered by Subtenant or any of its
employees, agents, contractors or invitees regardless of the cause, and
Subtenant hereby releases and agrees to hold Sublandlord harmless from all such
losses, liability, damages, injuries and expenses. Unless expressly agreed in
writing, Sublandlord shall have no obligation to provide security guards
stationed within the Subleased Premises or other security systems other than as
described above. Subtenant is responsible for ensuring that all exterior doors
to the Subleased Premises are locked and secure at the close of each business
day and for all other security measures within the Subleased Premises.
7. SIGNAGE. Subject to Landlord's consent, Subtenant shall have the
right to install, at Subtenant's expense, its identifying sign on the exterior
of the Subleased Premises facing Xxxxxx Drive, on the entrance door to the
Subleased Premises and on the rear doors and loading dock serving the Subleased
Premises. The size, materials, location and method of attachment shall be
subject to Sublandlord's prior approval. All such signage shall comply with
applicable law. Upon
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the expiration or sooner termination of this Sublease, Subtenant shall remove
such signs and repair all damage caused thereby.
8. ASSIGNMENT AND SUBLETTING. Subtenant acknowledges that a material
consideration for Sublandlord's willingness to enter into this Sublease is
Subtenant's role as a contract supplier for Sublandlord's products and the
proximity of Subtenant's production facility at the Subleased Premises to
Sublandlord's nearby facilities. Accordingly, in the event Subtenant desires to
assign this Sublease or sublet all or any portion of the Subleased Premises,
Sublandlord shall have the right to exercise any of its rights under section
15.3 of the Master Lease in its sole discretion.
9. MASTER LEASE AND SUBLEASE TERMS. Subtenant acknowledges that it has
read and is familiar with the all of the terms and conditions of the Master
Lease to the extent applicable to the Subleased Premises.
9.1 SUBORDINATION TO MASTER LEASE. This Sublease is, and shall at all
times be, subject and subordinate to the Master Lease. Nothing herein shall be
construed to grant Subtenant any greater rights in and to the Subleased Premises
than Sublandlord holds in the Master Premises under the Master Lease.
9.2 INCORPORATION OF MASTER LEASE PROVISIONS.
(a) The terms, conditions, and respective rights and obligations
of Sublandlord and Subtenant to each other under this Sublease shall be the
terms, conditions and respective rights and obligations of Landlord and Tenant
under the Master Lease except to the extent that those provisions of the Master
Lease are directly contradicted or expressly excluded by this Sublease. In the
event of any conflict between the provisions of the Master Lease and the
provisions of this Sublease, the provisions of this Sublease shall control.
Subtenant assumes and agrees to perform the obligations of Tenant under the
Master Lease incorporated into this Sublease and applicable to the Subleased
Premises.
(b) For purposes of this Sublease, the following terms appearing
in the Master Lease shall have the meanings indicated below: (a) "Landlord"
shall mean "Sublandlord"; (b) "Tenant" shall mean "Subtenant"; (c) "Premises"
shall mean "Subleased Premises"; (d) "Tenant's Share" shall mean "Subtenant's
Percentage Share"; and (e) "Term" shall mean the "Term" defined herein.
Capitalized terms used in this Sublease without definition have the same
meanings as are ascribed to such terms in the Master Lease, as such terms are
applicable to the Subleased Premises.
(c) The time limits in the Master Lease for giving notices,
making demands or performing any act, condition or covenant, or for the exercise
of any right or remedy, on the part of the Tenant are, for purposes of this
Sublease, reduced by three days; provided, however, in no event shall Subtenant
have fewer than five days or the time period specified in the Master Lease,
whichever is less, for such purposes. The time limits in the Master Lease for
giving notices, making demands or performing any act, condition or covenant, or
for the exercise of any
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right or remedy, on the part of the Landlord are, for purposes of this Sublease,
increased by ten days.
(d) Any non-liability, release, indemnity or hold harmless
provision in the Master Lease for the benefit of Landlord shall, to the extent
incorporated herein, inure to the benefit of Sublandlord, Landlord and any other
person intended to be benefitted by such provision. Any right of Landlord under
the Master Lease of access or inspection, any right of Landlord under the Master
Lease to do work in the Master Premises, and any right of Landlord in respect of
rules and regulations, shall, to the extent incorporated herein, inure to the
benefit of Sublandlord, Landlord and any other person intended to be benefitted
by such provision.
9.3 MODIFICATION OF CERTAIN MASTER LEASE PROVISIONS. For purposes of
incorporation into this Sublease, the terms of the Master Lease are subject to
the following additional modifications:
(a) All provisions of the Master Lease requiring the consent or
approval of Landlord shall be deemed to require the consent or approval of
Landlord and Sublandlord. Any provision of this Sublease requiring the consent
or approval of Sublandlord shall also require the consent or approval of the
Landlord to the extent such consent is a requirement under the Master Lease. Any
act of Subtenant that, if proposed to be undertaken by Sublandlord under the
Master Lease would require the consent or approval of Landlord, shall be subject
to the consent or approval of the Landlord. In any instance when Sublandlord's
consent or approval is required under this Sublease and such consent or approval
may not be withheld or denied unreasonably, Sublandlord's refusal to render its
consent or approval shall be deemed reasonable if, among other considerations,
the consent or approval of Landlord is required but has not been obtained
despite Sublandlord's efforts to do so.
(b) All provisions of the Master Lease that require the Tenant
to submit, exhibit to, supply or provide documents, instruments, certificates,
financial statements, evidence, information or other items shall be deemed to
require Subtenant to furnish such items to Landlord and Sublandlord. Sublandlord
shall determine the sufficiency of the items so furnished.
(c) Sublandlord shall have no obligation to restore, repair or
rebuild the Subleased Premises or Master Premises or any portion thereof, or to
apply any insurance proceeds or condemnation awards it might receive, after any
casualty damage or taking by eminent domain.
(d) All provisions of the Master Lease requiring Tenant to
designate Landlord as an additional insured on its insurance policy(ies), shall
require Subtenant to so designate Landlord and Sublandlord on its insurance
policy(ies).
9.4 EXCLUDED MASTER LEASE PROVISIONS. The following provisions of the
Master Lease are expressly excluded from this Sublease and Subtenant shall have
no rights or obligations under such provisions: ORIGINAL LEASE: Basic Lease
Information; Sections 1.3 [parking], 2 [term], and 5 [construction]; Exhibit B1
and Exhibit B2 [floor plans]; Sections 1 through 9 of Exhibit C [work letter];
Rider No. 1 [option to extend]; Rider No. 2, Sections 6 [alterations],10
Page 10 of 16
[permitted transfers],14 [first refusal right], 15 [purchase of equipment], 18
[access to roof], and 19 [rent]. FIRST AMENDMENT: each provision which, by its
terms, applies solely to the "Building D Premises" located at 0000 Xxxxxx Xxxxx,
as described in the First Amendment. SECOND AMENDMENT: Sections 2(b) [option to
extend], 2(c) [monthly rent], and 3 [credit or payment].
9.5 COMPLIANCE WITH MASTER LEASE.
(a) During the Term and for all periods thereafter with respect
to obligations which arise prior to the termination of this Sublease, Subtenant
shall perform and comply with, for the benefit of Sublandlord and Landlord, the
obligations of Tenant under the Master Lease which pertain to the Subleased
Premises and/or this Sublease. Without limiting the generality of the foregoing
statement, Subtenant shall occupy and use the Subleased Premises in compliance
with the terms of the Master Lease applicable to the Subleased Premises, and
will not do or permit any act or omission which may result in a violation of or
a default under any of the terms and conditions of the Master Lease, or render
Sublandlord liable for any damage, charge, lien, penalty or expense thereunder.
(b) Subtenant agrees that Sublandlord shall not be required to
perform any of the obligations, agreements or undertakings of Landlord under the
Master Lease. Insofar as any of the obligations, agreements or undertakings of
Sublandlord under this Sublease are required to be performed under the Master
Lease by Landlord, Sublandlord shall use reasonable efforts to seek and obtain
Landlord's performance thereof and shall otherwise have no duty, obligation or
liability with respect to Landlord's failure to do so. Any condition resulting
from a default by Landlord shall not constitute, as between Sublandlord and
Subtenant, an actual or constructive eviction of Subtenant. No such default
shall excuse Subtenant from the performance or observance of any of its
obligations to be performed or observed under this Sublease, or entitle
Subtenant to receive any reduction in or abatement of the rent provided for in
this Sublease. In furtherance of the foregoing, Subtenant hereby waives any
cause of action and any right to bring any action against Sublandlord by reason
of any act or omission of Landlord under the Master Lease.
9.6 TERMINATION OF MASTER LEASE. If the Master Lease terminates, this
Sublease shall terminate and the parties shall be relieved of any further
liability or obligation under this Sublease excluding those which accrued prior
to such termination and those which by their terms survive the termination of
this Sublease; provided, however, that if the Master Lease terminates as a
result of a default or breach by Subtenant under this Sublease, then Subtenant
shall be liable to Sublandlord for all damages suffered as a result of such
termination. Notwithstanding any implication herein to the contrary, if the
Master Lease gives Sublandlord any right to terminate the Master Lease in the
event of the partial or total damage, destruction or condemnation of the Master
Premises, then the exercise of such right by Sublandlord shall not constitute a
default or breach by Sublandlord under this Sublease. Sublandlord shall have no
liability to Subtenant for any failure of Landlord to apply insurance proceeds
or any condemnation award toward the repair or restoration of the Subleased
Premises or Master Premises.
Page 11 of 16
9.7 CONSENT OF LANDLORD. This Sublease is expressly conditioned on
Sublandlord having received the prior written consent of Landlord to the terms
of this Sublease on or before the Commencement Date. Subtenant agrees to provide
such information concerning Subtenant (including, without limitation, financial
statements, business history and plans, and intended use of the Subleased
Premises) as may be reasonably requested by Landlord, and to execute and deliver
such certifications and agreements as Landlord may reasonably request, as a
condition to Landlord granting its consent to this Sublease.
10. DEFAULT.
10.1 BY SUBTENANT. In addition to the events of default set forth in
the Master Lease, a default by Subtenant under the Manufacturing Agreement
shall, upon the expiration of any available cure period set forth therein,
automatically and without further notice, constitute a non-curable default under
this Sublease.
10.2 BY SUBLANDLORD; NOTICE AND RIGHT TO CURE. Sublandlord agrees to
give to Subtenant, promptly upon receipt by Sublandlord, a copy of any written
notice of default received by Sublandlord from Landlord under the Master Lease.
If Sublandlord elects not to cure or fails to cure such default timely and
Subtenant thereafter effects a cure which is accepted by Landlord, Subtenant
shall be entitled to deduct the actual, direct cost of such cure from the rent
payable by Subtenant under this Sublease until Subtenant has fully recovered
such cost of cure.
11. INDEMNITY.
11.1 BY SUBTENANT. Subtenant shall indemnify, defend and hold
harmless Sublandlord from and against all losses, costs, damages, expenses and
liabilities, including, without limitation, reasonable attorneys' fees and
costs, which Sublandlord may incur or pay out by reason of (a) any personal
injury, death or property damage occurring in or on the Subleased Premises
(except to the extent caused by or resulting from the negligence or willful
misconduct of Sublandlord, Landlord or their respective agents, employees,
contractors or invitees); (b) any breach or default by Subtenant under this
Sublease; (c) any act or omission of Subtenant which results in a breach or
default by Sublandlord under the Master Lease; (d) any failure by Subtenant to
surrender the Subleased Premises upon the expiration or earlier termination of
this Sublease in the condition required hereby; or (e) any negligent act or
omission or any intentional wrongdoing by Subtenant or any of its agents,
employees, contractors or invitees.
11.2 BY SUBLANDLORD. Sublandlord shall indemnify, defend and hold
harmless Subtenant from and against all losses, costs, damages, expenses and
liabilities, including, without limitation, reasonable attorneys' fees and
costs, which Subtenant may incur or pay out by reason of (a) any personal
injury, death or property damage caused by or resulting from the negligence or
willful misconduct of Sublandlord or its agents, employees, contractors or
invitees (except to the extent caused by or resulting from the negligence or
willful misconduct of Subtenant or its agents, employees, contractors or
invitees); (b) any breach or default by Sublandlord under this Sublease; or (c)
any termination of this Sublease occurring prior to the Expiration Date which
results from the breach or default by Sublandlord under the Master Lease.
Page 12 of 16
11.3 LIMITATION OF LIABILITY. Notwithstanding anything in this
Sublease to the contrary, except as set forth in the next sentence, neither
Sublandlord nor Subtenant shall be liable to the other under this Sublease for
any incidental, consequential or special damages of any kind that it may cause
even if it has been notified by the damaged party of the possible occurrence of
any such damage. The foregoing liability limitation shall not apply to any
liability that may be imposed on Sublandlord by Landlord for damages to the
extent caused by or resulting from the breach, act, neglect, omission or
intentional wrongdoing of Subtenant or any of its agents, employees, contractors
or invitees, whether or not such damages are direct, indirect, incidental,
consequential or special.
12. BROKERS. Each party represents and warrants to the other party that
it has not retained the services of any broker, real estate licensee or finder,
and that no person or entity is entitled to any broker's or finder's fee or
commission of any kind in connection with the transaction evidenced by this
Sublease. Each party shall indemnify, defend and hold harmless the other party
from and against all claims, demands, costs, expenses and liabilities,
including, without limitation, reasonable attorneys' fees and costs, incurred as
a result of any broker's or finder's fee, commission or payment of any kind
asserted by any person or entity claiming to have represented such party in
connection with this Sublease.
13. SUBLANDLORD'S REPRESENTATIONS. Sublandlord represents and warrants
to Subtenant as follows:
13.1 Sublandlord has provided to Subtenant a complete and accurate
copy of the Master Lease, including all amendments thereto, but omitting only
certain economic terms having no relevance to this Sublease and for which
Subtenant shall have no liability or obligation.
13.2 The Master Lease is in full force and effect; Sublandlord has
received no notice of default from Landlord that has not been cured prior to the
date of this Sublease and, to Sublandlord's actual knowledge (but without
investigation), there exists no default or failure of a condition under the
Master Lease, and no event or condition exists which, with notice or passage of
time, or both, would constitute a default or failure of condition thereunder.
14. SUBTENANT'S REPRESENTATIONS. Subtenant represents and warrants to
Sublandlord as follows:
14.1 The execution, delivery and performance of this Sublease by
Subtenant has been authorized by all necessary corporate action. When executed
and delivered by Subtenant and Sublandlord, this Sublease shall be binding and
enforceable against Subtenant in accordance with its terms, subject only to
obtaining the consent of Landlord, the execution and delivery of the
Manufacturing Agreement, and the application of equitable principles or
bankruptcy rules and regulations which may limit certain rights or remedies of
the parties under certain circumstances; and no consent, approval, permit or
authorization of any other person, entity or governmental agency is required as
a condition to the validity or enforceability of this Sublease in accordance
with its terms.
Page 13 of 16
14.2 No litigation, arbitration or other adversarial or governmental
proceeding is pending or, to Subtenant's knowledge, threatened which could
impair the enforceability of the Sublease against Subtenant, or terminate the
Master Lease or Subtenant's interest in the Subleased Premises.
15. GENERAL PROVISIONS.
15.1 NOTICES. All notices required or permitted to be given hereunder
shall be in writing and shall be deemed sufficiently given if personally
delivered to the addressee (by personal service or by delivery via a recognized
courier service which obtains the signature of the recipient or its agent as
evidence of delivery) or if sent by registered or certified mail, return receipt
requested, with postage pre-paid and addressed as herein required. Notices so
sent shall be deemed to have been received on the earlier of actual receipt or
on the third business day following deposit in the U.S. mail. All notices to
Subtenant shall be addressed to Subtenant at the Subleased Premises. All notices
to Sublandlord shall be addressed to Sublandlord at its office in the Master
Premises, or to such other person or place as Sublandlord may from time to time
designate in a notice to Subtenant.
15.2 ENTIRE AGREEMENT; EXHIBITS. This Sublease, including all
exhibits, agreements and addenda attached hereto or referenced herein, is the
entire agreement between Sublandlord and Subtenant and supersedes all prior or
contemporaneous oral or prior written instruments, negotiations or
understandings between the parties concerning the sublease of the Subleased
Premises.
15.3 AMENDMENTS. No amendment of this Sublease shall be effective
unless set forth in a writing which specifies such amendment and is signed by
Sublandlord and Subtenant.
15.4 ACCORD AND SATISFACTION. No payment by Subtenant or receipt by
Sublandlord of a lesser amount than the rent payment herein stipulated shall be
deemed to be other than on account of the rent. No endorsement or statement on
any check or any letter accompanying any check or payment as rent shall be
deemed an accord and satisfaction. Sublandlord may accept such check or payment
without prejudice to Sublandlord's right to recover the balance of such rent or
pursue any other remedy provided in this Sublease.
15.5 CAPTIONS AND HEADINGS. The captions and headings used in this
Sublease to reference articles, sections, paragraphs and terms are provided
solely for convenience of reference and shall not be deemed to be relevant in
resolving any question of interpretation of any provision of this Sublease.
15.6 APPLICABLE LAW. This Sublease, and the rights and obligations of
the parties hereto, shall be construed and enforced in accordance with the laws
of the State of California applicable to contracts made and to be performed
wholly in such state.
Page 14 of 16
15.7 EXAMINATION OF SUBLEASE; CONTINGENCIES. Submission of this
Sublease for examination or signature by Subtenant does not constitute a
reservation of or option to lease. This document is not effective as a lease or
otherwise unless and until it and the Manufacturing Agreement are executed and
delivered by both Sublandlord and Subtenant and the consent of the Landlord to
this Sublease is obtained.
The parties hereto have executed this Sublease on the dates specified
immediately below their respective signatures hereto.
SUBTENANT: SUBLANDLORD:
DOVATRON INTERNATIONAL, INC., MYLEX CORPORATION,
a Delaware corporation a Delaware corporation
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxxxxx Xxxx
----------------------------- ----------------------------
Name: Xxxxx Xxxxxx Name: Xxxxxxx Xxxx
Title: VP/GM Title: VP Finance & CEO
By: /s/ Xxxxxxx X. Xxxxxx By:
----------------------------- ----------------------------
Name: Xxxxxxx Xxxxxx Name:
Title: Title:
Date: February 15, 1999 Date: February 15, 1999
Page 15 of 16
