Exhibit 10.8
SUBLEASE
This Sublease (the "Sublease") is made and entered into as of the ___ day
of February, 1999, by and between 3Com Corporation, a Delaware corporation
("3Com"), and Ariba Technologies, Inc., a Delaware corporation ("Ariba").
RECITALS
A. 3Com, successor in interest to U.S. Robotics Access Corp., as
"Tenant," and TriNet Essential Facilities XXV, Inc., successor in interest to
Charleston Place Associates, as "Landlord" (herein also called "Landlord"),
previously entered into a Charleston Place Lease Agreement, dated June 12, 1996
(the "Master Lease"), a copy of which is attached hereto as EXHIBIT "A."
Pursuant to the Master Lease, the Landlord has leased to 3Com certain premises
consisting of the buildings commonly known as 0000 Xxxxxxxxxx Xxxx and
0000 Xxxxxxxxxx Xxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx, and more fully described in the
Master Lease (the "Premises").
B. 3Com desires to sublease to Ariba, and Ariba desires to sublease from
3Com, all of the Premises on the terms and conditions set forth herein (the
"Premises").
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, 3Com and Ariba agree as follows:
AGREEMENT
1. DEFINED TERMS. Terms used in this Sublease as defined terms and not
otherwise defined herein shall have the same meanings as in the Master Lease.
2. DEMISE OF PREMISES. 3Com hereby subleases and demises to Ariba, and
Ariba hereby accepts from 3Com, on the terms and conditions hereinafter set
forth, the Premises. 3Com and Ariba agree that the Premises contain a rentable
area of one hundred thirty-one thousand five hundred eighty (131,580) square
feet.
3. RENT.
(a) During the Term of this Sublease, Ariba shall pay to 3Com in
equal monthly installments the following sums, in advance, beginning on the
Commencement Date (as defined in Paragraph 5 below) and continuing on the first
day of each calendar month during the Term thereafter, monthly installments of
rent as provided below ("Base Rent"):
Monthly
Period of Term Base Rent
-------------- ---------
05/01/1999
through $189,450
07/31/1999
-------------- ---------
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Monthly
Period of Term Base Rent
-------------- ---------
08/01/1999
through $279,729
10/31/1999
-------------- ---------
11/01/1999
through $283,518
04/30/2000
-------------- ---------
05/01/2000
through $355,266
04/30/2002
-------------- ---------
05/01/2002
through $368,424
04/30/2003
-------------- ---------
05/01/2003
through $381,582
04/30/2005
-------------- ---------
05/01/2005
through $394,740
10/31/2006
-------------- ---------
(b) The Base Rent and all other sums payable hereunder (such other
sums being referred to herein as "Additional Rent") shall be paid to 3Com
without deduction, set off, prior notice or demand, in lawful money of the
United States of America, at 3Com's office at 3Com Corporation, 0000 Xxxxxxxx
Xxxxx, Xxxxx Xxxxx, Xxxxxxxxxx, 00000, attention: Corporate Real Estate, or at
such other place as 3Com may specify from time to time by written notice to
Ariba. Base Rent and Additional Rent collectively are referred to herein as
"Rent."
(c) Notwithstanding Paragraph 3(a) hereof, Ariba shall pay 3Com the
first installment of Base Rent concurrently with the execution and delivery of
this Sublease. If the Commencement Date should occur on a day other than the
first day of a calendar month, or if the last day of the Term should occur on a
day other than the last day of a calendar month, then the Base Rent and
Additional Rent payable for such fractional month shall be prorated on a daily
basis.
4. OPERATING COSTS.
(a) In addition to the Base Rent provided for in Paragraph 3 above,
and in addition to any other Additional Rent payable by Ariba hereunder, Ariba
shall reimburse 3Com for all of the costs required to be paid by 3Com as the
Tenant under the Master Lease which accrue or are incurred during the Term,
directly or indirectly, in managing, repairing, maintaining, operating and
insuring the Premises, including Real Estate Taxes, Expenses and
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other Additional Charges (as those terms are defined in the Master Lease) paid
or required to be paid to the Landlord (collectively, "Operating Costs").
(b) Ariba shall pay 3Com the Operating Costs for each calendar year
or part thereof during the Term on the same terms and conditions as are required
of 3Com under the Master Lease. 3Com shall furnish Ariba with all notices and
statements received from Landlord and Ariba shall be entitled to exercise the
audit rights provided in Section 3(c)(5) of the Master Lease.
5. TERM AND POSSESSION.
(a) Subject to the terms hereof, the term of this Sublease ("Term")
shall begin on May 1, 1999 (the "Commencement Date') and shall end on October
31, 2006 (the "Termination Date"), unless sooner terminated in accordance with
the terms of this Sublease. 3Com shall deliver the Premises to Ariba on or
before March 1, 1999, and Ariba shall be entitled to prepare the Premises for
its possession thereof and to construct its improvements therein (subject to the
terms hereof) during the period following said delivery until the Commencement
Date (the "Early Occupancy Period"). Provided that Ariba does not commence
using the Premises during the Early Occupancy Period for any of the purposes
described in Paragraph 7 below, Ariba shall not be required to pay rent during
the Early Occupancy Period, but Ariba shall be required to establish and pay for
its own separate utility services to the Premises and all other terms and
conditions of this Sublease shall be applicable during such period, including,
without limitation, the insurance and indemnification provisions hereof. Ariba
acknowledges that 3Com shall terminate all of its utility services to the
Premises as of the date possession thereof is delivered to Ariba. If Ariba
commences using the Premises or any portion thereof for its business purposes
permitted hereunder, then the Early Occupancy Period shall terminate and the
Term hereof and Ariba's obligation to pay Base Rent and Additional Rent
hereunder shall commence as of the date Ariba first uses the Premises for its
business purposes. If 3Com, despite its exercise of commercially reasonable
efforts, cannot deliver possession of the Premises to Ariba by April 1, 1999,
3Com shall not be liable to Ariba for any loss or damage resulting therefrom,
but in such event Ariba shall be entitled to terminate this Sublease by
delivering written notice to 3Com prior to the date on which possession of the
Premises has been delivered to Ariba.
(b) Notwithstanding the foregoing paragraph 5(a), 3Com shall deliver
the Premises to Ariba, during the Early Occupancy Period only, subject to the
rights of Xxxxxxx Systems, Inc. ("Xxxxxxx") under the terms of that Holdover
Agreement (the "Holdover Agreement") dated January 22, 1999. The Holdover
Agreement affects approximately 19,205 square feet of space on the second floor
of the building located at 0000 Xxxxxxxxxx Xxxx. 3Com shall be entitled to
collect all sums payable under the Holdover Agreement as rent or otherwise until
the Commencement Date hereof. 3Com shall terminate the Holdover Agreement
effective April 30, 1999 and deliver to Ariba possession of the space currently
occupied by Xxxxxxx on May 1, 1999, unless Ariba enters into a separate
Sub-Sublease with Xxxxxxx as provided in the following sentence. Ariba shall be
entitled to enter into a separate Sub-Sublease with Xxxxxxx
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following the termination of the Holdover Agreement, subject to Landlord's
approval rights pursuant to the terms of the Master Lease.
6. CONDITION OF PREMISES.
(a) 3Com shall deliver the Premises to Ariba in their "AS IS"
condition, without warranty or representation of any kind except that (i) all of
the following described components and systems of the Premises shall be in good
working order as of the delivery of possession to Ariba: HVAC system, roof
structure, landscaping, parking lot, building fire and life safety systems,
plumbing and electrical systems and (ii) 3Com shall, at its sole cost, remove
all personal property and unattached cafeteria trade fixtures and equipment from
the cafeteria area of the Premises. Except as may be required by the foregoing
sentence, Ariba acknowledges that 3Com is under no obligation to make any
alterations, repairs, replacements or improvements to the Premises and that 3Com
has made no representation or warranty concerning the Premises or their
suitability for Ariba's proposed use.
(b) To the best of 3Com's actual knowledge, without investigation,
(i) 3Com has not caused the Premises to become contaminated with Hazardous
Substances (as defined in the Master Lease) and (ii) the Premises, in their
current condition and configuration, contain no Hazardous Materials which are
harmful to the occupants thereof.
7. USE. Ariba shall use the Premises for general office, administration
and research, development and marketing, assembly, storage and distribution and
legal uses reasonably incidental thereto, and for no other purpose, without the
prior written consent of 3Com and the Landlord.
8. ALTERATIONS AND IMPROVEMENTS. Ariba shall not make any Alterations to
the Premises without the prior written consent of the Landlord, as provided in
Section 6 of the Master Lease, and the prior written consent of 3Com which shall
not be withheld for any Alterations to which Landlord consents. 3Com agrees
that 3Com will not unreasonably withhold or delay its consent to a proposed
Alteration and that 3Com will cooperate with Ariba to a reasonable extent in
seeking approval of the Landlord to any Alteration proposed by Ariba which 3Com
has approved. 3Com may condition its consent to a particular Alteration upon
(i) Ariba's agreement to remove such Alteration and to restore the Premises to
their condition prior to the construction of such Alteration, all at Ariba's
sole expense, and (ii) with respect to Alterations which 3Com reasonably
estimates would cost more than One Hundred Thousand Dollars ($100,000) to
remove, Ariba's delivery to 3Com of a cash deposit or other security, in an
amount equal to the estimated cost of such removal and restoration, as
reasonably determined by 3Com, unless the Landlord waives its right to require
said removal and restoration as provided in Section 6 of the Master Lease in
which event 3Com shall have no right to require said removal and restoration.
Such removal and restoration, if required hereunder, shall be completed no later
than the last day of the Term.
9. INITIAL IMPROVEMENTS/ALLOWANCE. 3Com acknowledges that Ariba intends
to construct certain improvements (the "Initial Improvements") within the
Premises at the outset of the term of this Sublease. Provided that Ariba spends
at least One Million Three Hundred
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Fifteen Thousand Eight Hundred Dollars ($1,315,800) (the "Required Expenditure")
in constructing the Initial Improvements, 3Com shall contribute the sum of Six
Hundred Fifty-Seven Thousand Nine Hundred Dollars ($657,900) ("3Com's
Contribution") toward the costs thereof. 3Com shall pay the amount of 3Com's
Contribution to Ariba within 30 days following completion of the Initial
Improvements and receipt by 3Com of written notice thereof together with
(i) evidence acceptable to 3Com that the total amount of construction costs paid
by Ariba equals or exceeds the Required Expenditure and (ii) full and
unconditional lien waivers with respect to the Initial Improvements evidencing
full payment of all sums owed in connection therewith. The amount of 3Com's
Contribution shall be amortized over the then remaining term of this Sublease
together with interest thereon at nine percent (9%) per annum and Ariba shall
pay to 3Com said amortized amount together with payments of Base Rent hereunder.
If this Sublease terminates prior to the expiration hereof for any reason other
that a default hereunder by 3Com, Ariba shall pay the then unamortized balance
of 3Com's Contribution to 3Com on or prior to said termination date. 3Com shall
not be required to make any contribution toward the cost of the Initial
Improvements unless Ariba spends the Required Expenditure or more in
constructing the Initial Improvements.
10. PARKING. Ariba shall have the right to use the parking spaces to
which 3Com is entitled on the same basis as such are made available to 3Com
under the Master Lease.
11. SIGNS. Any signs installed by Ariba at the Premises shall be
installed at Ariba's sole expense, in a good and xxxxxxx-like manner and in
strict compliance with all applicable laws including applicable ordinances of
the City of Mountain View, all terms and conditions of the Master Lease and all
terms of the Landlord's approval thereof. Ariba shall remove all signs and
repair any damage caused thereby, all at Ariba's expense, on or prior to
expiration of the Term if required under the terms of the Master Lease or as
provided by the terms of Landlord's consent thereto.
12. BROKERAGE COMMISSIONS. Each party represents and warrants to the
other that it has engaged no real estate brokers or finders in connection with
the transactions contemplated by this Sublease, except that (a) 3Com advises
Ariba that 3Com has agreed to pay Xxxxx Xxxxxx Associates ("Xxxxx Xxxxxx") a
commission pursuant to a separate agreement between 3Com and Xxxxx Xxxxxx,
payment of which shall be 3Com's sole responsibility, and (b) Ariba has retained
Xxxxxxx & Wakefield of California ("Xxxxxxx"), who shall be compensated pursuant
to a separate agreement between Xxxxx Xxxxxx and Xxxxxxx.
13. MASTER LEASE.
(a) As applied to this Sublease, the words "Landlord" and "Tenant" as
used in the Master Lease (to the extent incorporated herein) shall be deemed to
refer to 3Com and Ariba, respectively. Ariba and this Sublease shall be subject
in all respects to the terms of, and the rights of Landlord under, the Master
Lease. Except as otherwise expressly provided in Paragraph 13(b) hereof, the
covenants, agreements, terms, provisions and conditions of the Master Lease
insofar as they are not inconsistent with the terms of this Sublease are made a
part of and incorporated into this Sublease as if recited herein in full, and
the rights and obligations of
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the Landlord and the Tenant under the Master Lease shall be deemed the rights
and obligations of 3Com and Ariba, respectively, hereunder and shall be
binding upon and inure to the benefit of 3Com and Ariba, respectively. As
between the parties hereto only, in the event of a conflict between the terms
of the Master Lease and the terms of this Sublease, the terms of this
Sublease shall control. 3Com represents and warrants to Ariba that the Master
Lease is in full force and effect, 3Com has neither given nor received a
written notice of default under the Master Lease, and 3Com is not aware of
any default by any party under the Master Lease or of any circumstance which
with the passage of time would be a default under the Master Lease. 3Com
agrees not to terminate the Master Lease voluntarily, or modify the Master
Lease in a manner that adversely affects Ariba's rights under this Sublease.
3Com will refrain from any act or omission that would result in the failure
or breach of any of the covenants, provisions, or conditions of the Master
Lease on the part of the Tenant under the Master Lease.
(b) The following provisions of the Master Lease are not incorporated
herein and shall not apply to this Sublease, or are only incorporated herein to
the extent, or for the purpose specified below:
(i) The Basic Lease Information is not incorporated herein;
(ii) The Term of this Sublease and delivery of possession of the
Premises shall be governed by Paragraph 5 of this Sublease, and Ariba shall have
no rights or obligations under Section 2 of the Master Lease;
(iii) The payment by Ariba of Base Rent shall be governed by
Paragraph 3 of this Sublease, and Ariba shall have no rights or obligations with
respect to paragraphs (a) and (b) of Section 3 of the Master Lease;
(iv) Service and delivery of notices shall be governed by
Paragraph 17 of this Sublease, and Section 26 of the Master Lease shall not
apply thereto;
(v) For purposes of this Sublease, with respect to those
provisions incorporated from the Master Lease, all references to the "Lease"
shall be deemed to be references to this "Sublease;"
(vi) 3Com makes no representations or warranties regarding the
Premises or the Project, including without limitation any representations or
warranties regarding hazardous materials, zoning, or the suitability of the
Premises for Ariba's intended use.
(vii) The provisions of Sections 32, 37, 42, 43 and 44 of the
Master Lease and the provisions of EXHIBITS B and H of the Master Lease are not
incorporated in and shall not apply to this Sublease, and Ariba shall have no
rights or obligations thereunder.
(c) Notwithstanding the forgoing, 3Com and Ariba agree that 3Com
shall not be responsible to Ariba for furnishing any repairs to or maintenance
on the Premises which are the obligation of Landlord under the Master Lease, it
being understood that such obligations are solely those of Landlord pursuant to
the Master Lease. The failure of Landlord to fulfill its
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obligations under the Master Lease or the exercise by Landlord of any rights
specified in the Master Lease shall not (i) entitle Ariba to any allowance,
reduction or adjustment of Rent, (ii) make 3Com liable to Ariba, (iii) excuse or
impair the obligation of Ariba to perform or observe any of the terms or
conditions of this Sublease, or (iv) entitle Ariba to any claim of constructive
eviction against 3Com. 3Com shall take such action as is commercially
reasonable to (a) cause Landlord's compliance with the terms and provisions of
the Master Lease (including, without limitation, Landlord's obligation
thereunder to provide services to the Premises) and (b) obtain Landlord's
consent or approval on behalf of Ariba where necessary to permit Ariba's
exercise of its rights hereunder. If, following the exercise of such
commercially reasonable attempts Landlord still has not, in Ariba's judgment,
complied with the terms of the Master Lease, then Ariba (i) shall be subrogated
to the rights of 3Com to enforce the rights of the Tenant under the Master
Lease, and (ii) to the extent 3Com would have the right, either pursuant to the
terms of the Master Lease or under applicable law, to terminate the Master Lease
or exercise other remedies thereunder as a result of such non-compliance, Ariba
shall have the right to terminate the Master Lease or to pursue such other
remedies, provided Ariba indemnifies, defends and holds 3Com harmless from and
against any costs, expenses, claims, liabilities or damages in connection with
the exercise or attempted exercise of said remedies.
(d) This Sublease is subordinate to all of the terms and conditions
of the Master Lease and to the matters to which the Master Lease by its terms is
subordinate. Ariba acknowledges that the Master Lease and this Sublease may be
further made subordinate to, among other things, the terms, provisions and liens
of ground leases, mortgages and other financing affecting the Premises and the
Project. In the event the Master Lease is terminated for any reason, then, on
the date of such termination, this Sublease automatically shall terminate and be
of no further force or effect. If the termination of the Master Lease (and the
resulting termination of this Sublease) occurs through no breach or default of
this Sublease or of the Master Lease by 3Com, 3Com shall have no liability
therefor to Ariba.
(e) Ariba agrees that it will not take or permit any action or fail
to perform or observe any obligation, which causes an event of default under the
Master Lease and/or causes the Master Lease to be terminated or forfeited, and
Ariba shall indemnify, defend, protect and hold harmless 3Com from and against
any and all claims, demands, suits, costs, expenses, damages and liabilities,
including reasonable attorneys' fees, arising by reason of any act or omission
on the part of Ariba which is in breach of this Paragraph 13(e).
(f) 3Com agrees that it will not take or permit any action or fail to
perform or observe any obligation, which causes an event of default under the
Master Lease and/or causes the Master Lease to be terminated or forfeited, and
3Com shall indemnify, defend, protect and hold harmless Ariba from and against
any and all claims, demands, suits, costs, expenses, damages and liabilities,
including reasonable attorneys' fees, arising by reason of any act or omission
on the part of 3Com which is in breach of this Paragraph 13(f). Notwithstanding
the foregoing, 3Com shall have no liability hereunder for the failure to perform
its obligations under the Master Lease to the extent said obligations have been
delegated to Ariba under the terms of this Sublease.
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(g) Notwithstanding any provision of the Master Lease that is
incorporated by reference into this Sublease to the contrary, if by the terms of
such incorporated provision Landlord must approve, disapprove, or otherwise
respond to Ariba within a specified time period, 3Com shall have an additional
ten (10) business days after expiration of such time period to approve,
disapprove, or otherwise respond to Ariba with respect to such matter.
14. EVENTS OF DEFAULT.
(a) In addition to the occurrence of any default (as defined in the
Master Lease), each of the following shall constitute an event of default by
Ariba under this Sublease and shall entitle 3Com to exercise any and all
remedies available to the Landlord under the Master Lease and/or available to
3Com by operation of law:
(i) Ariba shall fail to pay when due any monthly installment of
Base Rent or Operating Costs, or shall fail to pay when due any other sum
payable hereunder, and such failure shall continue for three (3) days after
delivery to Ariba of 3Com's written notice thereof,
(ii) Ariba shall fail in any material respect to observe or
perform any other material term or condition to be observed or performed by
Ariba hereunder or under the provisions of the Master Lease which are
incorporated in this Sublease under Paragraph 13 hereof, and such failure shall
continue for 30 days after delivery to Ariba of 3Com's written notice thereof,
unless such failure of performance, by its nature, cannot be cured within 30
days, in which event, such failure of performance shall be deemed cured if Ariba
commences to cure the same within such 30 day period and completes such cure as
soon as reasonably practicable; and
(iii) Ariba shall file a petition in bankruptcy or avail
itself of any other state or federal law providing for the relief of debtors.
(b) Notwithstanding any provision of this Paragraph 14 or Section 19
of the Master Lease to the contrary, in the event that during any twelve (12)
month period (i) Ariba fails twice to pay Rent, Operating Costs or other sums
required to be paid by Ariba hereunder, or (ii) any other default or event of
default of the same or similar nature occurs twice, Ariba shall not be entitled
to any grace period to cure subsequent defaults or events of default which occur
thereafter during said twelve (12) month period.
15. CONSENT OF LANDLORD; APPROVALS.
(a) Ariba acknowledges that, under the terms of the Master Lease,
this Sublease requires the prior written consent of the Landlord (the
"Landlord's Consent"). 3Com agrees to use reasonable efforts to obtain
Landlord's Consent, promptly upon delivery to 3Com of at least three
counterparts of this Sublease, duly executed by Ariba. If 3Com has not received
Landlord's Consent within 15 days after receipt of such executed counterparts of
this Sublease from Ariba, then either 3Com or Ariba shall have the right, by
written notice to the other party, to elect to terminate this Sublease. Ariba
acknowledges that the Landlord has heretofore
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furnished to 3Com a form of consent, a copy of which is attached hereto as
EXHIBIT "B", and Ariba and 3Com agree that it shall be sufficient for the
Landlord to give the Landlord Consent in substantially such form.
(b) Ariba acknowledges that as to certain matters set forth in this
Sublease, 3Com has rights of approval or disapproval. In addition, Ariba
acknowledges that as to certain matters set forth in the Master Lease, Landlord
has rights of approval or disapproval. If any matter requires Landlord's
approval under the Master Lease (irrespective of whether such matter also
requires 3Com's consent under this Sublease), 3Com shall submit the same to
Landlord for approval within ten (10) business days after 3Com's receipt of
written request from Ariba, and provided 3Com approves such matter 3Com shall
use reasonable efforts to obtain Landlord's approval of such matter. If
Landlord disapproves any such matter, 3Com shall have no liability to Ariba by
reason of such refusal.
16. ASSIGNMENT AND SUBLEASING. Ariba shall not enter into any Assignment
or Sublease (as those terms are defined in Section 9(a) of the Master Lease),
except with the written consent of Landlord and 3Com, it being understood that
3Com's consent shall not be unreasonably withheld. All terms and conditions of
Section 9 of the Master Lease are hereby incorporated herein by reference,
except that in the event of any Sublease or Assignment done with the consent of
3Com, 3Com shall be entitled to fifty percent (50%) of the amount by which the
rent and other consideration paid or received by Ariba under such Assignment or
Sublease exceeds the Base Rent, Operating Costs and other sums required to be
paid by Ariba under this Sublease, after first deducting Ariba's brokerage
commissions and other reasonable costs directly related and incurred to procure
such Assignment or Sublease.
17. NOTICES. All notices or demands required or permitted under this
Sublease shall be in writing and shall be addressed as set forth herein below or
to such other address as either party may, by written notice to the other,
specify in writing from time to time. All notices shall be deemed served upon
delivery, if hand-delivered, or 24 hours after delivery to Federal Express or
another recognized overnight courier with charges prepaid, if served by
overnight courier, or three business days after deposited in the United States
mail, with postage prepaid, registered or certified mail, return receipt
requested, if served by mail. Notices hereunder may also be served by
facsimile, with a copy sent by United States mail postage prepaid, and shall be
deemed served when received by the recipient's facsimile machine. Ariba and
3Com each agree to furnish the other with copies of any written notices received
from Landlord promptly upon receipt thereof.
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Notices to 3Com shall be addressed as follows:
3Com Corporation
0000 Xxxxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
Attn: Legal Department
With a copy to:
3Com Corporation
0000 Xxxxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
Attn: Corporate Real Estate
Notices to Ariba shall be addressed as set forth on the signature page
hereof, below Ariba's signature. Copies of any notices sent to Ariba shall be
sent to:
Xxxxxx, Love, Xxxxxxxxxxx & XxXxxx
000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxx, Esq.
18. INSURANCE; WAIVER OF SUBROGATION.
(a) Throughout the Term, Ariba, at Ariba's sole expense, shall obtain
and maintain in effect, with respect to the Premises, for the benefit of Ariba,
3Com and the Landlord, the policies of insurance described in Section 10(d) of
the Master Lease and shall otherwise comply with all requirements of such
Section 10(d). 3Com shall be named as an insured, in addition to the Landlord,
under any of such policies which, under the terms of the Master Lease, are
required to name the Landlord as an insured. Ariba shall deliver certificates
of such insurance to 3Com prior to commencement of the Early Occupancy Period.
(b) Notwithstanding any provision to the contrary in the Master
Lease, 3Com, Ariba, and (to the extent agreed to by Landlord) Landlord each
(i) hereby waives all claims such party may have against the other to the extent
such claims are covered by insurance carried or required to be carried under the
Master Lease, and (ii) shall cause their respective insurers to similarly waive
all rights of recovery against the others, and against the officers, employees,
partners, agents and representatives of the others, for loss of or damage to the
property of the waiving party or the property of others under its control, to
the extent such loss or damage is (or would have been) insured against under any
insurance policy carried (or required to be carried)
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by Landlord, 3Com, or Ariba hereunder. Each of Ariba, 3Com, and (to the extent
agreed to by Landlord pursuant to its consent hereto or otherwise) Landlord
shall obtain a clause or endorsement to the applicable insurance policies
carried by such party denying its insurer any rights of subrogation against the
other parties.
19. CERTAIN UTILITIES AND SERVICES. Without limiting the generality of
Ariba's obligations under Paragraph 4 hereof with respect to payment of
Operating Costs or the provisions of Paragraph 13 hereof, concerning observance
and performance of the Master Lease, 3Com and Ariba agree as follows with
respect to certain utilities and services:
(a) TELECOMMUNICATIONS. Ariba shall contract directly with the
providers thereof for all telecommunications services required by Ariba at the
Premises and shall install or cause to be installed, at Ariba's sole expense,
all equipment and facilities required therefor.
(b) SECURITY. Ariba shall cause any security systems installed by
Ariba to be installed in a good and xxxxxxx-like manner, in strict compliance
with all applicable laws and shall furnish sufficient information about such
systems to 3Com to enable 3Com to enter the Premises in cases of emergency and
otherwise to exercise 3Com's rights under this Sublease. If required by
Landlord pursuant to the Master Lease, Ariba shall remove all security systems
installed by Ariba and repair any damage caused thereby, all at Ariba's sole
expense, prior to expiration of the Term.
(c) REPAIR AND MAINTENANCE OF THE PREMISES. Ariba, at Ariba's sole
expense, shall maintain the interior of the Premises in good condition and
repair, in the manner provided in Section 7(b) of the Master Lease.
20. SECURITY DEPOSIT.
(a) Within three (3) business days following Ariba's receipt of
written notice that Landlord has executed Landlord's Consent but in all events
prior to Ariba taking possession of the Premises, Ariba shall deposit with 3Com
an irrevocable letter of credit (the "Letter of Credit") in form and issued by
an institutional lender reasonably acceptable to 3Com in the amount of Eight
Hundred Thousand Dollars ($800,000) as security for the prompt and complete
performance by Ariba of all of the obligations and terms of this Sublease to be
performed by Ariba, and not as prepayment of Rent. The Letter of Credit shall
(i) show 3Com as the account party, (ii) have a term of not less than twelve
(12) months, (iii) be automatically renewed from time to time throughout the
term of this Sublease not later than thirty (30) days prior to its expiration
(such renewals to be for periods of not less than twelve (12) months and in the
amounts required hereby), (iv) require written notice to 3Com at least 30 days
prior to non-renewal if for any reason the Letter of Credit will not be renewed,
and (v) allow for partial draws thereon. The term "Letter of Credit" shall, for
the purposes of this Sublease, include any replacement or renewal Letter of
Credit.
(b) Upon the successful completion of an initial public offering by
Sublessee and provided Sublessee has not defaulted hereunder and is not then in
default hereunder (beyond any applicable grace or cure period), the amount of
the Letter of Credit required to be maintained
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hereunder shall be reduced to Four Hundred Dollars ($400,000). If Ariba has
defaulted or is in default hereunder at the time it completes its initial public
offering, then the Letter of Credit will be reduced as provided above upon the
second anniversary of the date on which said default (or the most recent default
if there have been more than one) has been cured, provided that no subsequent
defaults have occurred prior to said second anniversary.
(c) Upon the occurrence of an event of default by Ariba under the
terms of this Sublease, 3Com may upon demand draw upon the Letter of Credit, and
3Com may apply such portion or portions of the Letter of Credit as are
reasonably necessary for the following purposes: (i) to remedy any default by
Ariba in the payment of Rent under this Sublease; (ii) to clean and restore and
repair the Premises following their surrender to 3Com, if not surrendered in the
condition required pursuant to this Lease, (iii) to remedy any other default of
Ariba hereunder, including, without limitation, the failure by Ariba to renew
the Letter of Credit as required hereby. 3Com shall limit the amounts drawn
from the Letter of Credit to the amounts it reasonably deems necessary to cure
defaults hereunder by Ariba, provided that if Ariba fails to renew the Letter of
Credit as required hereby 3Com shall draw the entire amount thereof which shall
thereafter be held as the L-C Security Deposit (defined below). Any amount of
the Letter of Credit that is drawn upon by 3Com but not applied by 3Com shall be
held by 3Com as a security deposit (the "L-C Security Deposit") which may be
applied by 3Com for the purposes described in this paragraph. In the event the
Letter of Credit or any portion thereof is drawn upon by 3Com, Ariba shall,
within five (5) days after demand by 3Com, either (i) deposit cash with 3Com in
an amount that, when added to the amount remaining under the Letter of Credit
and the amount of any L-C Security Deposit, shall equal the original amount of
the Letter of Credit, or (ii) deliver written documentation executed by the
issuer of the Letter of Credit and reasonably acceptable to 3Com confirming that
the Letter of Credit has been reinstated to its original amount. Following a
partial draw on the Letter of Credit and Ariba's reinstatement of the Letter of
Credit to its original amount, 3Com shall return to Ariba any portion of the L-C
Security Deposit which has not been applied to cure the default. If 3Com draws
the total amount of the Letter of Credit for a failure by Ariba to renew it as
required hereby, then the L-C Security Deposit shall serve as security hereunder
for the balance of the Term and Ariba shall maintain the L-C Security Deposit in
the amount required hereunder. 3Com shall not be deemed a trustee of the L-C
Security Deposit. 3Com may use the L-C Security Deposit in 3Com's ordinary
business and shall not be required to segregate it from 3Com's general accounts.
Ariba shall not be entitled to any interest on the L-C Security Deposit. The
L-C Security Deposit, less any portion thereof which 3Com is entitled to retain,
shall be returned to Ariba (or at 3Com's option to the last assignee, if any, of
Ariba's interest hereunder) within thirty (30) days after the later of the
expiration of the term hereof or the date on which Ariba vacates the Premises.
21. GENERAL PROVISIONS.
(a) The waiver by either party hereto of a breach of any covenant,
obligation or condition set forth herein to be performed or observed by the
other party hereto shall not be deemed to be a waiver of any subsequent breach
of the same or of any other covenant, obligation or condition of this Sublease
to be performed or observed by such party.
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(b) This Sublease shall be governed by and construed in accordance
with the laws of the State of California.
(c) If any term, covenant or condition of this Sublease or the
application thereof to any person or circumstance shall be held to be or
rendered invalid, unenforceable or illegal, then such term, covenant or
condition shall be considered separate and severable from the remainder of this
Sublease, shall not affect, impair or invalidate the remainder of this Sublease,
and shall continue to be applicable to and enforceable to the fullest extent
permitted by law against any person or circumstances other than those as to
which it has been held or rendered invalid, unenforceable or illegal.
(d) This Sublease may be executed in one or more counterparts, each
of which shall constitute an original but all of which together shall constitute
one and the same instrument.
(e) This Sublease sets forth all the covenants, promises, agreements,
conditions or understandings between the parties hereto concerning the Premises
and the subject matter of this Sublease. No alteration, amendment or change of,
or addition to this Sublease shall be binding upon the parties hereto unless in
writing and signed by 3Com and Ariba.
(f) The captions and Paragraph numbers appearing in this Sublease are
inserted only as a matter of convenience and in no way define, limit, construe
or describe the scope or intent of any of the provisions hereof nor in any way
affect this Sublease.
(g) The words "hereof," "herein," "hereunder" and similar expressions
used in any provision of this Sublease relate to the whole of this Sublease and
not to such provision alone, unless otherwise expressly provided, and whenever
the singular number of a gender is used herein the same shall be construed as
including the plural and the masculine, feminine and neuter respectively where
the fact or context so requires.
(h) Time is of the essence of this Sublease and of every part hereof.
(i) Each party to this Sublease represents and warrants to the other
party hereto that the execution, delivery and performance of this Sublease by
the representing and warranting party has been authorized by all necessary
corporate action of such party and that the officer or officers executing this
Sublease on behalf of such party have full power and authority to do so and to
bind such party hereto.
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IN WITNESS WHEREOF, 3Com and Ariba have duly executed this Sublease as of
the day and year first above written.
3COM:
3Com Corporation, a Delaware corporation
By: /s/ [ILLEGIBLE]
--------------------------------------
Its:
--------------------------------------
ARIBA:
Ariba Technologies, Inc., a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Its:
--------------------------------------
Address for Service of Notices
prior to the Commencement Date:
Ariba Technologies, Inc.
0000 Xxxxxxxxxx Xxxxxxx
Xxxxxxxxx, XX 00000
Attn: Chief Financial Officer
after the Commencement Date:
Ariba Technologies, Inc.
0000 Xxxxxxxxxx Xxxx
Xxxxxxxx Xxxx, XX
Attn: Chief Financial Officer
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EXHIBIT A
MASTER LEASE
EXHIBIT B
CONSENT OF LANDLORD
