SUBLEASE
1. PARTIES.
This Sublease, dated October 24 , 19 96 , is made between
Norian Corporation ("Sublessor"),
and Hybrid Networks, Inc. ("Sublessee").
2. MASTER LEASE.
Sublessor is the lessee under a written lease dated August 22 , 19 96 ,
wherein Bubb Partners, A California General Partnership ("Lessor")
leased to Sublessor the real property located in the City of Cupertino ,
County of Santa Xxxxx , State of California ,
described as 00000 Xxxx Xx, consisting of approximately 9,216 square feet
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("Master Premises"). Said lease has been amended by the following
amendments None
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said lease and amendments are herein collectively referred to as the
"Master Lease" and are attached hereto as Exhibit "A."
3. PREMISES.
Sublessor hereby subleases to Sublessee on the terms and conditions set
forth in this Sublease the following portion of the Master Premises
("Premises"): All
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4. WARRANTY BY SUBLESSOR.
Sublessor warrants and represents to Sublessee that the Master Lease has
not been amended or modified except as expressly set forth herein, that
Sublessor is not now, and as of the commencement of the Term hereof will not
be, in default or breach of any of the provisions of the Master Lease, and
that Sublessor has no knowledge of any claim by Lessor that Sublessor is in
default or breach of any of the provisions of the Master Lease.
5. TERM.
The term of this Sublease shall commence on February 1 ,19 97
("Commencement Date"), or when Lessor consents to this Sublease (if such
consent is required under the Master Lease), whichever shall last occur, and
end on August 31 , 19 97 ("Termination Date"), unless otherwise
sooner terminated in accordance with the provisions of this Sublease. In the
event the Term commences on a date other than the Commencement Date,
Sublessor and Sublessee shall execute a memorandum setting forth the actual
date of commencement of the Term. Possession of the Premises ("Possession")
shall be delivered to Sublessee on the commencement of the Term. If for any
reason Sublessor does not deliver Possession to Sublessee on the commencement
of the Term, Sublessor shall not be subject to any liability for such
failure, the Termination Date shall not be extended by the delay, and the
validity of this Sublease shall not be impaired, but rent shall xxxxx until
delivery of Possession. Notwithstanding the foregoing, if Sublessor has not
delivered Possession to Sublessee within thirty (30) days after the
Commencement Date, then at any time thereafter and before delivery of
Possession, Sublessee may give written notice to Sublessor of Sublessee's
intention to cancel this Sublease. Said notice shall set forth an effective
date for such cancellation which shall be at least ten (10) days after
delivery of said notice to Sublessor. If Sublessor delivers Possession to
Sublessee on or before such effective date, this Sublease shall remain in
full force and effect. If Sublessor fails to deliver Possession to Sublessee
on or before such effective date, this Sublease shall be cancelled, in which
case all consideration previously paid by Sublessee to Sublessor on account
of this Sublease shall be returned to Sublessee, this Sublease shall
thereafter be of no further force or effect, and Sublessor shall have no
further liability to Sublessee on account of such delay or cancellation. If
Sublessor permits Sublessee to take Possession prior to the commencement of
the Term, such early Possession shall not advance the Termination Date and
shall be subject to the provisions of this Sublease, including without
limitation the payment of rent.
6. RENT
6.1 MINIMUM RENT. Sublessee shall pay to Sublessor as minimum rent,
without deduction, setoff, notice, or demand, at 00000 Xxxx Xx., Xxxxxxxxx,
XX 00000 or at such other place as Sublessor shall designate from time to
time by notice to Sublessee, the sum of thirteen thousand, eight hundred
twenty-four Dollars ($ 13,824.00 ) per month, in advance on the first
day of each month of the Term. Sublessee shall pay to Sublessor upon
execution of this Sublease the sum of thirteen thousand, eight hundred
twenty-four Dollars ($ 13,824.00 ) as rent for February, 1997 .
If the Term begins or ends on a day other than the first or last day of a
month, the rent for the partial months shall be prorated on a per
diem basis. Additional provisions:
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6.2 OPERATING COSTS. If the Master Lease requires Sublessor to pay
to Lessor all or a portion of the expenses of operating the building
and/or project of which the Premises are a part ("Operating Costs"),
including but not limited to taxes, utilities, or insurance, then
Sublessee shall pay to Sublessor as additional rent one hundred
percent ( 100 %) of the
amounts payable by Sublessor for Operating Costs incurred during the Term.
Such
1
additional rent shall be payable as and when Operating Costs are payable
by Sublessor to Lessor. If the Master Lease provides for the payment by
Sublessor of Operating Costs on the basis of an estimate thereof, then
as and when adjustments between estimated and actual Operating Costs are
made under the Master Lease, the obligations of Sublessor and Sublessee
hereunder shall be adjusted in a like manner; and if any such adjustment
shall occur after the expiration or earlier termination of the Term,
then the obligations of Sublessor under this Subsection 6.2 shall
survive such expiration or termination. Sublessor shall, upon request by
Sublessee, furnish Sublessee with copies of all statements submitted by
Lessor of actual or estimated Operating Costs during the Term.
7. SECURITY DEPOSIT.
Sublessee shall deposit with Sublessor upon execution of this Sublease
the sum of thirteen thousand, eight hundred twenty-four Dollars ($
13,824.00) as security for Sublessee's faithful performance of Sublessee's
obligations hereunder ("Security Deposit"). If Sublessee fails to pay rent or
other charges when due under this Sublease, or fails to perform any of its
obligations hereunder, Sublessor may use or apply all or any portion of the
Security Deposit for the payment of any rent or other amount then due
hereunder and unpaid, for the payment of any other sum for which Sublessor
may become obligated by reason of Sublessee's default or breach, or for any
loss or damage sustained by Sublessor as a result of Sublessee's default or
breach. If Sublessor so uses any portion of the Security Deposit, Sublessee
shall, within ten (10) days after written demand by Sublessor, restore the
Security Deposit to the full amount originally deposited, and Sublessees's
failure to do so shall constitute a default under this Sublease. Sublessor
shall not be required to keep the Security Deposit separate from its general
accounts, and shall have no obligation or liability for payment of interest
on the Security Deposit. In the event Sublessor assigns its interest in this
Sublease, Sublessor shall deliver to its assignee so much of the Security
Deposit as is then held by Sublessor. Within thirty (30) days after the
Term has expired, or Sublessee has vacated the Premises, or any final
adjustment pursuant to Subsection 6.2 hereof has been made, whichever shall
last occur, and provided Sublessee is not then in default of any of its
obligations hereunder, the Security Deposit, or so much thereof as had not
theretofore been applied by Sublessor, shall be returned to Sublessee or to
the last assignee, if any, of Sublessee's interest hereunder.
8. USE OF PREMISES.
The Premises shall be used and occupied only for General Office ,
and for no other use or purpose.
9. ASSIGNMENT AND SUBLETTING.
Sublessee shall not assign this Sublease or further sublet all or any part
of the Premises without the prior written consent of Sublessor (and the
consent of Lessor, if such is required under the terms of the Master Lease).
10. OTHER PROVISIONS OF SUBLEASE.
SEE INSERT ONE
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Sublessee assumes and agrees to perform the lessee's obligations under the
Master Lease during the Term to the extent that such obligations are
applicable to the Premises, except that the obligation to pay rent to
Lessor under the Master Lease shall be considered performed by Sublessee to
the extent and in the amount rent is paid to Sublessor in accordance with
Section 6 of this Sublease. Sublessee shall not commit or suffer any act or
omission that will violate any of the provisions of the Master Lease.
Sublessor shall exercise due diligence in attempting to cause Lessor to
perform its obligations under the Master Lease for the benefit of
Sublessee. If the Master Lease terminates, this Sublease shall terminate
and the parties shall be relieved of any further liability or obligation
under this Sublease, provided however, that if the Master Lease terminates
as a result of a default or breach by Sublessor or Sublessee under this
Sublease and/or the Master Lease, then the defaulting party shall be liable
to the nondefaulting party for the damage suffered as a result of such
termination. Notwithstanding the foregoing, if the Master Lease gives
Sublessor any right to terminate the Master Lease in the event of the
partial or total damage, destruction, or condemnation of the Master
Premises or the building or project of which the Master Premises are a
part, the exercise of such right by Sublessor shall not constitute a
default or breach hereunder. Notwithstanding any provision to the contrary,
Sublessor's liability for damages to Sublessee shall not include and
liability for consequential damages and shall be limited to the total amount
of rent to be paid to Sublessor by Sublessee pursuant to this Sublease.
11. ATTORNEYS' FEES.
If Sublessor, Sublessee, or Broker shall commence an action against the
other arising out of or in connection with this Sublease, the prevailing
party shall be entitled to recover its costs of suit and reasonable
attorney's fees.
12. AGENCY DISCLOSURE.
Sublessor and Sublessee each warrant that they have dealt with no other
real estate broker in connection with this transaction except: Xxxx X. Xxxx,
Corporate R.E. Consulting who represents Sublessor
and NA , who represents
NA . In the event that
NA represents both Sublessor and Sublessee, Sublessor and
Sublessee hereby confirm that they were timely advised of the dual
representation and that they consent to the same, and that they do not
expect said broker to disclose to either of them the confidential
information of the other party.
13. COMMISSION.
Upon execution of this Sublease, and consent thereto by Lessor (if such
consent is required under the terms of the Master Lease), Sublessor shall
pay Broker a real estate brokerage commission in accordance with Sublessor's
contract with Broker for the subleasing of the Premises, if any, and
otherwise in the amount of NONE Dollars ($ -0- ), for
services rendered in effecting this Sublease. Broker is hereby made a third
party beneficiary of this Sublease for the purpose of enforcing its right to
said commission.
14. NOTICES.
All notices and demands which may or are to be required or permitted to be
given by either party on the other hereunder shall be in writing. All
notices and demands by the Sublessor to Sublessee shall be sent in
accordance with section 60 of the Master Lease to the Sublessee at the
Premises, and to the address hereinbelow, or to such other place as
Sublessee may from
time to time designate in a notice to the Sublessor. All notices and
demands by the Sublessee to Sublessor shall be sent by United States
Mail, postage prepaid, addressed to the Sublessor at the address set
forth herein, and to such other person or place as the Sublessor may
from time to time designate in a notice to the Sublessee.
To Sublessor: 00000 Xxxx Xx., Xxxxxxxxx, XX 00000
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To Sublessee: 00000 Xxxx Xx., Xxxxxxxxx, XX 00000
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15. CONSENT BY LESSOR.
THIS SUBLEASE SHALL BE OF NO FORCE OR EFFECT UNLESS CONSENTED TO BY
LESSOR WITHIN 10 DAYS AFTER EXECUTION HEREOF, IF SUCH CONSENT IS
REQUIRED UNDER THE TERMS OF THE MASTER LEASE.
16. COMPLIANCE.
The parties hereto agree to comply with all applicable federal, state
and local laws, regulations, codes, ordinances and administrative orders
having jurisdiction over the parties, property or the subject matter of
this Agreement, including, but not limited to, the 1964 Civil Rights
Act and all amendments thereto, the Foreign Investment In Real Property
Tax Act, the Comprehensive Environmental Response Compensation and
Liability Act, and The Americans With Disabilities Act.
Sublessor: Norian Corporation Sublessee: Hybrid Networks, Inc.
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By: /s/ Xxxxxx Xxxxxx By: /s/ Xxxxxxx Xxxxxx
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Title: EXEC. V.P., OPERATIONS Title: VP, FINANCE
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By: By:
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Title: Title:
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Date: 11/20/96 Date: 11/15/96
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LESSOR'S CONSENT TO SUBLEASE
The undersigned ("Lessor"), lessor under the Master Lease, hereby consents to
the foregoing Sublease without waiver of any restriction in the Master
Lease concerning further assignment or subletting. Lessor certifies that, as
of the date of Lessor's execution hereof, Sublessor is not in default or
breach of any of the provisions of the Master Lease, and that the Master
Lease has not been amended or modified except as expressly set forth in the
foregoing Sublease.
Lessor: Xxxx Partners, A California General Partnership
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By:
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Title:
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By:
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Title:
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Date:
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CONSULT YOUR ADVISORS - This document has been prepared for approval by
your attorney. No representation or recommendation is made by Broker as to
the legal sufficiency or tax consequences of this document or the
transaction to which it relates. These are questions for your attorney.
In any real estate transaction, it is recommended that you consult with a
professional, such as a civil engineer, industrial hygienist or other
person, with experience in evaluating the condition of the property,
including the possible presence of asbestos, hazardous materials and
underground storage tanks.
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17. RIGHT OF FIRST REFUSAL TO SUBLEASE 00000 XXXX XX.
CP RF
Sublessee currently leases the building located at 00000 Xxxx Xx. under a
lease dated 5/25/95 with Devcon Xxxx Investors as lessor with a lease term
expiring May 31, 1998. In the event Sublessee desires to sublease all or part
of 00000 Xxxx Xx. prior to June 1, 1998, Sublessee shall first give notice to
Sublessor of the anticipated date of availability for occupancy and the terms
under which Sublessee desires to offer such space to Sublessor and to the
open market. If Sublessor desires to negotiate for the potential expansion
into 00000 Xxxx Xx., Sublessor shall give written notice of such intent
within 15 business days following receipt of Sublessee's notice, and
Sublessor and Sublessee shall proceed to negotiate in good faith for up to 30
days following. If Sublessor and Sublessee have not reached some agreement on
or before the end of such 30 day period then Sublessee shall be free
thereafter to offer such space to any person or entity and to enter into a
sublease(s) for such space without any further reference to Sublessor;
provided that, if Sublessee proposes to sublease such space to another person
or entity on terms less favorable to Sublessee than evidenced by Sublessee's
last offer to Sublessor in the aforementioned negotiations, then Sublessee
shall notify Sublessor and Sublessor shall have the right to sublease such
space on the same terms and conditions as proposed with such other person or
entity. If Sublessee does not lease such space within four months following
its notice to Sublessor identified above, then, if Sublessee continues to or
again desires to offer space for lease, Sublessee shall again provide
Sublessor with the Right of First Refusal as set forth in this paragraph.
Furthermore, in the event Sublessor exercises this Right of First Offer,
Sublessee shall pay a fee to Xxxx X. Xxxx, Corporate Real Estate
Consulting (Broker) equal to four (4%) percent of the gross remaining
lease consideration. Such fee shall be due and payable upon execution of
the Sublease for 00000 Xxxx Xx. by Sublessee and Sublessor.
18 NO ASSIGNMENT OR SUBLETTING
Any transfer, circumstances or event which constitutes an assignment or
subletting under the Master Lease shall constitute an assignment or
subletting under this Sublease.
3
AMENDMENT (#1) TO SUBLEASE
THIS AMENDMENT #1 TO SUBLEASE DATED THE 24TH DAY OF OCTOBER, 1996, BY AND
BETWEEN NORIAN CORPORATION ("SUBLESSOR") AND HYBRID NETWORKS, INC.
("SUBLESSEE").
WITNESSETH:
WHEREAS, Sublessor and Sublessee entered into a Sublease Agreement, dated
October 24, 1996, to sublease 9,216 square feet in a building commonly known
as 00000 Xxxx Xxxx, Xxxxxxxxx, XX and
WHEREAS, Sublessor and Sublessee desire to further amend the lease,
NOW, THEREFORE, in consideration of the following covenants and conditions
contained herein, the parties agree as follows:
1. The Lease Term, as outlined in paragraph 5, shall be extended to
September 30, 1998.
2. The Rent, as outlined in paragraph 6.1, shall be increased to read
$18,432.00 per month effective September 1, 1997.
3. The Security Deposit, as outlined in paragraph 7, shall be increased to
read $18,432.00 effective September 1, 1997.
IN WITNESS HEREOF, the parties have set their hands and seals on the date
first above written.
Sublessor: Norian Corporation Sublessee: Hybrid Networks, Inc.
By: /s/ X. Xxxxxx 5/28/97 By: /s/ Xxxxxxx X. Xxx
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Xxxxxx Xxxxxx Xxxxxxx Xxx
Title: Executive Vice President, Title: Vice President, Operations
Operations
INSERT ONE
Except as specifically set forth below, all of the terms, provisions,
and conditions in the Master Lease, together with any modifications thereto,
are incorporated in this Sublease by reference, and are made a part hereof as
if herein set forth at length. Sublessor being substituted for the "Lessor"
under the Master Lease, Sublessee being substituted for the "Tenant" under
the Master Lease, and Subleased Premises being substituted for "Premises"
under the Master Lease. "Rent" under the Master Lease shall be deemed to
refer to Rent hereunder. As used in this Sublease, the term "Building" shall
mean the building in which the Premises are located. Notwithstanding the
foregoing, (A) with respect to any matter requiring Lessor's consent under
the Master Lease, Lessor's consent will be required under this Sublease, and
no consent of Sublessor will be deemed to have occurred (regardless of the
passage of time) unless Lessor has given its consent (or is deemed, pursuant
to the terms of the Master Lease, to have given its consent) and Sublessor
has given its consent, (B) Sublessor shall have no liability to Sublessee
with respect to representations and warranties made by Lessor in the Master
Lease or any indemnifications or other obligations or liabilities of Lessor
with respect to Hazardous Materials or Environmental Laws, or Lessor's
repair, maintenance, restoration, upkeep, insurance, and similar obligations
under the Master Lease, regardless of whether or not the incorporation of one
or more provisions of the Master Lease into the Sublease might otherwise
operate to make Sublessor liable therefor, (C) in any case where under the
incorporated provisions of the Master Lease the Lessor reserves or is granted
the right to enter or use the Premises or any areas beneath, above or
adjacent thereto, such reservation or grant of right of entry shall be deemed
to be for the benefit of both Lessor and Sublessor, (D) in any case where
under the incorporated provisions of the Master Lease Lessee is to indemnify
and/or release Lessor, such indemnity and/or release shall be deemed to run
from Sublessee to both Lessor and Sublessor, (E) in any case where under the
incorporated provisions of the Master Lease Lessee is to execute and deliver
certain documents to Lessor, such obligation shall be deemed to run from
Sublessee to both Lessor and Sublessor, and (F) Sublessee shall name
Sublessor and Lessor as additional insureds for the amounts stated in the
Master Lease on all policies required to be carried by Sublessee.
The following terms of the Master Lease are incorporated herein with the
modifications specified below: the term "Lessor" shall refer only to Lessor
and not to Sublessor in the first sentence of Section 7.2(a), in Section 8.2,
and in Section 8.4; Sublessor shall have none of the obligations imposed on
Lessor in Article 9 or in Article 14; Sublessee shall have no right to share
in any condemnation award under Article 14 except to the extent that an award
is separately made for Sublessee's relocation costs, Sublessee's trade
fixtures or Sublessee's personal property; the provisions of Article 55 shall
govern only the relationship between Sublessor and Sublessee; and the
provisions of Section 60 regarding the addresses of the parties are deemed
modified by Paragraph 14 of this Sublease.
The following terms of the Master Lease are excluded from this Sublease
and are not incorporated herein; Articles 1, 3, 4, 5, Sections 6.1, 6.2(a),
7.1, Article 12, Articles 15, 25, 39, 50, 51, 52, 53, and 59.
CP RF
