Exhibit 10.1.15
SUBLEASE
THIS SUBLEASE ( "Sublease") is dated for reference purposes as of
January 10, 2000, and is made by and between Komag Incorporated, a Delaware
corporation ("Sublessor"), and 2Wire, Inc., a Delaware corporation
("Sublessee"). Sublessor and Sublessee agree as follows:
RECITALS:
Sublessor, as lessee, and Sobrato Development Companies #960, a
California limited partnership, as lessor ("Master Lessor") and as successor
in-interest to Sobrato Development Company #871, entered into that certain Lease
dated May 24, 1996, as amended by that certain First Amendment to Lease
(collectively, the "Master Lease"), with respect to that certain 5.60 acre
parcel of land and that approximately 81,778 square foot building ("Building")
known as 0000 Xxxxxxxxxx Xxxxxxx, Xxx Xxxx, Xxxxxxxxxx, and including the
exclusive use of 307 parking spaces in the parking areas adjacent to the
Building ("Parking Area"). The Parking Area is identified on Exhibit B attached
hereto. The land, Building and Parking Area are referred to as the "Project". A
copy of the Master Lease is attached hereto as Exhibit A. Capitalized terms used
and not otherwise defined herein shall have the meaning ascribed to them in the
Master Lease.
AGREEMENT:
1. Subleased Premises: Subject to the terms and conditions set forth
herein, Sublessor subleases to Sublessee, and Sublessee subleases from
Sublessor, the "Subleased Premises" which shall be defined as follows: (i) from
January 14, 2000 ("Initial Premises Commencement Date") to January 31, 2000,
that certain premises consisting of approximately 7,500 square feet as set forth
on Exhibit C attached hereto ("Initial Premises"); (ii) from February 1, 2000
("First Floor Premises Commencement Date") to February 29, 2000 the first floor
of the Project consisting of approximately 40,889 square feet, as set forth on
Exhibit C attached hereto ("First Floor Premises") and (iii) from March 1, 2000
("Second Floor Premises Commencement Date") to March 14, 2007, the entire
Project as set forth on Exhibit C attached hereto ("Project"). For purposes of
this Sublease, the square footage amounts set forth in this Sublease are agreed
by the parties to be an accurate estimate of Sublessee's exclusive space
regardless of any measurements to the contrary and are subject to adjustment by
Master Lessor as provided for in the Master Lease.
2. Early Occupancy: Following execution of this Sublease by Sublessor
and Sublessee and delivery by Sublessee of its Security Deposit and the first
payment of Base Rent to Sublessor as required hereunder, and proof that
Sublessee has obtained the workers compensation, public liability and property
damage insurance required to be obtained by Sublessee under this Sublease,
Sublessor shall provide Sublessee with access to the Project for the purpose of
planning its improvements to the Subleased Premises and installing a phone
switch. In addition, Sublessor shall use commercially reasonable efforts to: (a)
make available to Sublessee space for equipment storage and for early occupancy
by up to 25 of Sublessee's employees and independent contractors prior to the
Initial
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Premises Commencement Date ("Initial Premises Early Occupancy"), and (b) make
the First Floor Premises and Second Floor Premises available to Sublessee for
occupancy prior to the respective Commencement Dates for such Premises set forth
in Paragraph 1, above ("First and Second Floor Premises Early Occupancy").
Sublessee shall provide Sublessor advance notice before entering the Project
prior to the Initial Premises Commencement Date. During any period of Initial
Premises Early Occupancy, Sublessee shall be subject to the terms and conditions
of the Master Lease excluding any payments of Base Monthly Rent or Additional
Rent (as defined in the Master Lease) or Project operating expenses. During any
period of First and Second Floor Premises Early Occupancy, Sublessee shall be
subject to the terms and conditions of the Master Lease excluding the payment of
Base Rent, but Sublessee shall be subject to payments of Additional Rent as
reasonably allocated by Sublessor to Sublessee's use and occupancy of the First
Floor Premises or Project, as applicable. During any period of Initial Premises
Early Occupancy or First and Second Floor Premises Early Occupancy, Sublessee
shall not interfere with Sublessor's operations on the Project, and shall be
subject to Sublessor's reasonable security precautions.
3. Use: Sublessee shall use the Subleased Premises only for such uses
permitted under the Master Lease and for no --- other purpose without Master
Lessor's and Sublessor's prior written consent, which consent shall not be
unreasonably withheld, conditioned or delayed.
4. Term: The term ("Term") of this Sublease shall commence on the
Initial Premises Commencement Date, and shall terminate on the earliest to occur
of (a) Xxxxx 00, 0000, (x) the date this Sublease is sooner terminated pursuant
to its terms, or (c) the date the Master Lease is sooner terminated pursuant to
its terms (collectively the "Expiration Date").
5. Delivery and Acceptance: Sublessor shall use commercially reasonable
efforts to deliver possession of the Project to Sublessee in accordance with the
schedule set forth in Subparagraph 1 hereof. If, despite such efforts, Sublessor
is unable to deliver possession of the Initial Premises to Sublessee on or
before February 1, 2000, the First Floor Premises on or before March 1, 2000 or
the Project on or before April 1, 2000 for any reason (other than as the result
of the actions or omissions of Sublessee), then, as Sublessee's sole and
exclusive remedy, Sublessee may terminate this Sublease by written notice to
Sublessor given no later than ten (10) days following the date upon which
Sublessor's failure to deliver as required hereunder gives rise to Sublessee's
right to terminate this Sublease. If Sublessee does not exercise its right to
terminate hereunder, Sublessee shall not be obligated to pay Base Rent or
Additional Rent on any portion of the Project until Sublessee receives
possession of that portion of the Project. In addition, any period of rent
abatement that Sublessee otherwise would have enjoyed shall run from the date of
delivery of possession and continue for a period equal to what Sublessee
otherwise would have enjoyed.
6. Rent:
(a) Base Rent. Except as set forth in Subparagraphs 6(b) and 6(d)
hereof, payments of Base Rent (as defined in this Paragraph) shall not commence
until the Second Floor Premises Commencement Date and the period from the
Initial Premises Commencement Date to the Second Floor Premises Commencement
Date shall be considered a period free of any payment of Base Rent. Sublessee
shall pay to Sublessor as base monthly rent ("Base Rent") the following amounts:
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Price per Sq. Ft. Base Rent
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From the Second Floor Premises Commencement
Date to June 30, 2000 (50% Free Base Rent Period
based on 40,889 square feet) $1.400 $ 57,244.60
July 1, 2000 to February 28, 2001 $1.400 $114,489.20
March 1, 2001 to February 28, 2002 $1.442 $117,923.87
March 1, 2002 to February 28, 2003 $1.485 $121,440.33
March 1, 2003 to February 29, 2004 $1.530 $125,120.34
March 1, 2004 to February 28, 2005 $1.576 $128,882.13
March 1, 2005 to February 28, 2006 $1.623 $132,725.69
March 1, 2006 to February 28, 2007 $1.672 $136,732.82
March 1, 2007 to March 14, 2007 $1.722 $140,821.72
(b) Base Rent and Additional Rent (as defined in Subparagraph 6(c)
hereof), except as otherwise set forth in Subparagraphs 6(a) and (c) hereof,
shall be paid to Sublessor on or before the first (1st) day of each month during
the Term. Base Rent and Additional Rent (collectively, "Rent") for any period
during the Term hereof which is for less than one month of the Term shall be a
pro rata portion of the monthly installment based on the actual number of days
in such month. Rent shall be payable without notice or demand and without any
deduction, offset, or abatement (except as expressly set forth herein), in
lawful money of the United States of America. Rent shall be paid directly to
Sublessor at Komag, Inc., 0000 Xxxxxxxxxx Xxxxxxx, Xxx Xxxx, XX 00000,
Attention: Accounts Receivable, or such other address as may be designated in
writing by Sublessor. Notwithstanding the foregoing, upon execution of this
Sublease by Sublessee, Sublessee shall pay to Sublessor the sum of Fifty-Seven
Thousand Two Hundred and Forty-Four Dollars and 60/00 ($57,244.60) as prepayment
of Base Rent for credit against the first installment of Base Rent due upon the
Second Floor Premises Commencement Date and any resulting excess shall be
applied to the second installment of Base Rent due hereunder.
(c) Additional Rent. All monies other than Base Rent required to be
paid by Sublessee under this Sublease (and under the Master Lease as
incorporated into this Sublease) shall be deemed additional rent ("Additional
Rent"). Except as otherwise set forth in this Paragraph, Sublessee shall pay
such amounts of Additional Rent to Sublessor within ten (10) days following the
date upon which Sublessor delivers an invoice to Sublessee for such payment of
Additional Rent.
(i) Notwithstanding anything to the contrary in this Sublease,
except for costs or charges arising out of the negligence or willful misconduct
of Sublessee, Sublessee shall have no obligation to pay any Additional Rent for
the period from the Initial Premises Commencement Date to the First Floor
Premises Commencement Date. Sublessee shall pay its Pro-Rata Share of Additional
Rent for the period from the First Floor Premises Commencement Date to the
Second Floor Premises Commencement Date. "Pro-Rata Share" shall mean
Fifty-Percent (50%) of the Additional Rent owed by Sublessor under the Master
Lease, provided, however, that Sublessor, in the reasonable exercise of its
discretion, may allocate any particular item of Additional Rent on any other
basis to reflect an allocation of Additional Rent that is equitable and
attributable to Sublessee's occupancy of Subleased Premises.
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(ii) Notwithstanding anything to the contrary in this Sublease,
in no event shall Sublessee be responsible for the payment of any real property
taxes assessed against any real property other than the Premises, nor any
personal property taxes assessed against any personal property or trade or
business fixtures that are not owned or leased by Sublessee.
(d) Inducement Recapture. Any agreement for free or abated rent or
other charges, or for the giving or paying by Sublessor to or for the Sublessee
of any cash or other bonus, inducement or consideration for Sublessee's entering
into this Sublease, all of which concessions are hereinafter referred to as
"Inducement Provisions," shall be deemed conditioned upon Sublessee's full and
faithful performance of all of the terms, covenants and conditions of this
Sublease. Upon a material and uncured breach of this Sublease, or any default
under Section 22 of the Master Lease as incorporated into this Sublease, any
such Inducement Provision shall automatically be deemed deleted from this
Sublease and of no further force and effect, and any rent, other charge, bonus,
inducement or consideration theretofore abated, given or paid by Sublessor under
such Inducement Provision shall be immediately due and payable by Sublessee to
Sublessor. The acceptance by Sublessee of Rent shall not be deemed a waiver of
this provision unless so specifically stated in writing by Sublessor.
7. Security Deposit. Upon execution of this Sublease by Sublessee,
Sublessee shall provide to Sublessor a security deposit in the form of a letter
of credit in the amount of Two Hundred and Fifty Thousand Dollars ($250,000).
("Letter of Credit"). All references in this Sublease and the Master Lease (as
incorporated herein) to the Security Deposit shall mean the Letter of Credit or
any Cash Deposit. The Letter of Credit shall: (i) be issued by a commercial bank
reasonably satisfactory to Sublessor ("Issuer"); (ii) be a stand-by, sight
draft, irrevocable letter of credit; (iii) name Sublessor as beneficiary; (iv)
not expire prior to one year or longer after the date of its issuance; and (v)
provide that it is governed by the Uniform Customs and Practice for Documentary
Credits (1993 revisions). Notwithstanding anything to the contrary in this
Paragraph, upon completion of an initial public offering of Sublessee's stock on
the New York or NASDAQ Stock Exchanges, Sublessee's Letter of Credit, or the
balance of any cash proceeds held by Sublessor, shall be returned to Sublessee
upon Sublessee's delivery to Sublessor of a new Letter of Credit in the amount
of One Hundred Forty Thousand Eight Hundred and Twenty-One Dollars and
Seventy-Two Cents ($140,821.72) and such reduced letter of credit shall be the
"Letter of Credit" hereunder.Within fourteen (14) days prior to expiration of
any Letter of Credit then in effect, Sublessee shall cause the Issuer to issue
and deliver to Sublessor a Letter of Credit to replace the expiring Letter to
Credit ("Replacement Letter of Credit"). The Replacement Letter of Credit shall
be in the amount required under this Paragraph 7 and shall be on the terms and
conditions set forth in items (i) through (v) above. In the event Sublessee
fails to timely provide a Replacement Letter of Credit as provided herein,
Sublessor shall be entitled to draw upon the entire amount of the Letter of
Credit and hold it as a cash security deposit until a Replacement Letter of
Credit is furnished by Sublessee. If Sublessee fails to pay Rent or other
charges due in accordance with the terms of this Sublease or otherwise defaults
with respect to any provision of this Sublease, then Sublessor may draw upon,
use, apply or retain all or any portion of the Security Deposit to satisfy any
uncured default in the payment of any Rent or other charge resulting from
Sublessee's uncured default, for the payment of any other sum which Sublessor
has become obligated to pay by reason of Sublessee's default, or to compensate
Sublessor for any loss or damage which Sublessor has suffered thereby. If
Sublessor so uses or applies all or any portion of the Security Deposit, then
Sublessee, within ten
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(10) days after written demand by Sublessor therefor specifying the portion of
the Letter of Credit applied and the purpose of the application, shall restore
the Security Deposit to the full amount stated above. Within thirty (30) days
following the expiration or earlier termination of this Sublease, if Sublessee
is not in default hereunder, Sublessor shall return to Sublessee so much of the
Security Deposit as is held by Sublessor and has not been applied by Sublessor
pursuant to this Paragraph, or which is not otherwise required to cure
Sublessee's defaults hereunder.
8. Sublessee's Repair and Maintenance Obligations: Notwithstanding
anything to the contrary in this Sublease or Paragraph 16 hereof, from the
Initial Premises Commencement Date to the First Floor Premises Commencement
Date, Sublessee shall have no obligation to repair or maintain the Subleased
Premises or reimburse Sublessor for any costs attributable to Sublessor's
obligation to maintain or repair the Subleased Premises under the terms of the
Master Lease, except to the extent resulting from the negligence or willful
misconduct of Sublessee. From the First Floor Premises Commencement Date to the
Second Floor Premises Commencement Date, Sublessee shall have no obligations to
repair or maintain the Subleased Premises (except to the extend resulting from
the negligence or willful misconduct of Sublessee), but Sublessee shall
reimburse Sublessor for costs incurred by Sublessor for maintenance and repair
as set forth in Paragraph 6(c) hereof.
9. Use of the Cafeteria: Sublessor shall permit Sublessee's employees
to use the cafeteria located at the Project at any time between the Initial
Premises Commencement Date and the First Floor Premises Commencement Date,
provided, however, that Sublessee shall reimburse Sublessor, as Additional Rent,
for Sublessor's costs attributable to Sublessee's share of cafeteria operations
costs on a mutually agreed upon basis. From and after the First Floor Premises
Commencement Date, Sublessee agrees to permit Sublessor's employees in the
Project and those located at 0000 Xxxxxxxxxx Xxxxxxx, Xxx Xxxx, Xxxxxxxxxx, to
use the cafeteria provided, however, that Sublessor shall reimburse Sublessee on
a mutually agreed upon basis for such usage taking into account the respective
numbers of employees of Sublessor and Sublessee with regular access to the
cafeteria. Notwithstanding the foregoing, Sublessee reserves the right at any
time during the Term, in its sole discretion, to terminate Sublessor's use of
the cafeteria if the parties are unable to mutually agree on an appropriate
reimbursement formula or if Sublessor's usage, when added to Sublessee's usage,
exceeds the efficient capacity of the cafeteria or otherwise becomes disruptive
to Sublessee.
10. Transferred Property: Sublessee desires to purchase from Sublessor
and Sublessor desires to sell to Sublessee that certain personal property,
equipment and fixtures identified on Schedule 1 of Exhibit D ("Transferred
Property"). The Transferred Property shall be sold to Sublessee at a purchase
price of Four Hundred Thousand Dollars ($400,000) (subject to adjustment as set
forth on Schedule 1 to Exhibit D) payable as set forth herein. Provided that
Master Lessor has approved this Sublease, on or before February 1, 2000,
Sublessor shall provide to Sublessee an executed xxxx of sale for the Subleased
Property in the form of the attached Exhibit D ("Xxxx of Sale") and Sublessee
shall provide to Sublessor a cash payment in the amount of Two Hundred Thousand
Dollars ($200,000) and an executed promissory note in the amount of $200,000 in
the form of the attached Exhibit E ("Note"). The payments made under the Note
shall be considered Additional Rent for the purposes of this Sublease. Except as
otherwise specifically set forth in the Xxxx of Sale, Sublessor is transferring
the Transferred Property to Sublessee "as is" "where is" and Sublessor makes no
representation or warranty of any kind with respect to the Transferred Property,
including, without limitation, the condition or fitness of the Transferred
Property for Sublessee' s proposed or
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actual use thereof. Sublessor shall have no obligation to repair or replace any
item of Transferred Property. The parties hereto acknowledge that from the First
Floor Premises Commencement Date to the Second Floor Premises Commencement Date,
Sublessor shall be permitted to continue to use, at no cost to Sublessor, the
Transferred Property located on the second floor of the Project, provided that
Sublessor shall be responsible for any injury, loss or damage to such
Transferred Property while it is being used by Sublessor.
11. Security System: From the First Floor Premises Commencement Date to
the Second Floor Premises Commencement Date, Sublessor shall provide security
services to Sublessee and Sublessee shall pay to Sublessor, as Additional Rent,
Sublessee's Pro-Rata Share of such costs. After the Second Premises Commencement
Date, and for the remainder of the Term, Sublessee may request to share
Sublessor's existing security services, and if Sublessor consents, Sublessee
shall reimburse Sublessor for the costs of such services, as Additional Rent,
for its Pro Rata Share of such security services.
12. Enforcement of Master Lessor's Obligations: In enforcing
performance of all such obligations of Master Lessor's obligations under the
Master Lease, Sublessor shall (a) upon Sublessee's written request, immediately
notify Master Lessor of its nonperformance under the Master Lease and request
that Master Lessor perform its obligations under the Master Lease, and (b)
permit Sublessee to commence a lawsuit or other action in Sublessee's name (and
assign to Sublessee any rights of Sublessor required in connection therewith),
or commence a lawsuit or other action in Sublessor's name, to obtain the
performance required from Master Lessor under the Master Lease, provided that
(i) Sublessee pays any all costs, expenses, liabilities or damages of any kind
or nature incurred in connection with or arising out of any such lawsuit or
other action; and (ii) uses counsel reasonably acceptable to Sublessor in the
pursuit of any such lawsuit prosecuted in Sublessor's name. Sublessee shall
promptly provide Sublessor a copy of any and all pleadings to be filed in any
such lawsuit.
13. Condition of the Subleased Premises: Sublessor shall provide the
Subleased Premises to Sublessee with the roof, elevators, HVAC system,
electrical, plumbing and lighting in good working condition. Sublessee shall
have until May 31, 2000 ("Warranty Period") to notify Sublessor in writing of
any non-compliance with the warranty set forth in the previous sentence, and
upon receipt of such written notice during the Warranty Period, Sublessor shall
promptly make required repairs, except to the extent such repairs are an
obligation of Master Lessor under the Master Lease. Except as specifically set
forth in this Xxxxxxxxx 00, Xxxxxxxxx is subleasing the Subleased Premises on an
"as-is" basis, and Sublessor has made no representations or warranties, express
or implied, with respect to the condition of the Project as of the Initial
Premises Commencement Date. Except as specifically set forth in this Paragraph,
Sublessor shall have no obligation whatsoever to make or pay the cost of any
alterations, improvements or repairs to the Premises, including, without
limitation, any improvement or repair required to comply with any law,
regulations, building code or ordinance (including, without limitation, the
Americans with Disabilities Act of 1990). Sublessor shall have no obligation to
perform any of the repairs or capital improvements required to be performed by
Master Lessor under the terms of the Master Lease; Sublessor's sole and
exclusive obligations in this regard are stated in Paragraphs 12 and 17(a)(iv)
hereof.
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14. Effect of Conveyance: As used in this Sublease, the term
"Sublessor" means the holder of the "Tenant's" interest under the Master Lease.
In the event of any assignment or transfer of the "Tenant's" interest under the
Master Lease, which assignment or transfer may occur at any time during the Term
hereof, as between Sublessor and Sublessee, Sublessor shall be and hereby is
entirely relieved of all covenants and obligations of Sublessor hereunder
arising from and after the date of such transfer, provided that Sublessor
delivers to Sublessee the written agreement of the transferee to assume and
carry out all covenants and obligations to be performed by Sublessor hereunder
from and after the date of such transfer. Sublessor may transfer and deliver any
security of Sublessee to the transferee of the "Tenant's" interest under the
Master Lease, and thereupon Sublessor shall be discharged from any further
liability with respect thereto. Any fees or costs relating to the transfer of
any Letter of Credit shall be paid by Sublessee.
15. Surrender: Sublessee shall not be permitted to make any alterations
to the Subleased Premises without the advance written consent of Master Lessor
(pursuant to the terms of the Master Lease) and Sublessor. Sublessor shall not
unreasonably withhold, condition or delay consent to such alterations, but
Sublessor may place reasonable conditions upon its consent, including a
requirement (notwithstanding any consent of Master Lessor): (i) that such
alteration be removed at the end of the Sublease Term; and (ii) that in the
event Sublessee desires to perform alterations which when aggregated with other
alterations performed by Sublessee in the Subleased Premises, in the reasonable
estimation of Sublessor, will cost in excess of $100,000 to remove, until such
time as Sublessee is a public company listed on the New York or NASDAQ Stock
Exchanges, Sublessee shall provide a bond or other financial assurance
acceptable to Sublessor (in the reasonable exercise of its discretion) insuring
that sufficient proceeds will be available to fund Sublessee's removal
obligation. If Master Lessor or Sublessor does not consent to the surrender of
such alterations at the expiration or earlier termination of the Term, then
prior to expiration or earlier termination of this Sublease, Sublessee shall
remove from the Subleased Premises, at Sublessee's sole cost and expense, such
alterations, along with all of its trade fixtures and personal property, and
shall surrender the Subleased Premises to Sublessor in good condition and
repair, free of Hazardous Materials (as defined in the Master Lease) caused by
Sublessee, reasonable wear and tear excepted and otherwise in the condition as
existed on the Initial Premises Commencement Date If the Subleased Premises are
not so surrendered, then Sublessee shall be liable to Sublessor for all costs
incurred by Sublessor (including any charges by Master Lessor under the Master
Lease) in returning the Subleased Premises to such required condition, plus
interest thereon at the lesser of twelve (12) percent per annum or the maximum
rate allowable by law.
16. Holdover: If Sublessee remains in possession of the Subleased
Premises after the expiration or earlier termination of this Sublease,
Sublessee's continued possession shall be as a sublessee from month to month of
Sublessor and Sublessee shall continue to comply with and perform all the terms
and obligations of the Sublessee under this Sublease and pay Sublessor holdover
Base Rent equal to one hundred and twenty five percent (125%) of the Base Rent
payable immediately preceding the termination of this Sublease ("Prior Base
Rent")plus actual Additional Rent for the first two (2) months of the hold over,
and one hundred and fifty percent of such Prior Base Rent plus actual Additional
Rent thereafter . Sublessee shall indemnify, protect, defend and hold harmless
Sublessor, its officers, directors, employees, agents and assigns, from and
against all loss and liability resulting from Sublessee's delay in surrendering
the Subleased Premises from and after the termination of this Sublease.
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17. Other Sublease Terms:
(a) Incorporation by Reference. Except as otherwise provided in or
modified by this Sublease, the terms, provisions and conditions contained in the
Master Lease are incorporated herein by reference, and are made a part hereof as
if set forth herein at length; provided, however, that: (i) each reference in
such incorporated sections to "Lease" shall be deemed a reference to "Sublease"
as defined herein, each reference to the "Premises" shall be deemed a reference
to the "Subleased Premises" as defined herein; each reference to "Base Monthly
Rent" shall be deemed a reference to "Base Rent" as defined herein, and each
reference to "Commencement Date" shall be deemed a reference to "Initial
Premises Commencement Date" as defined herein (except as otherwise specifically
set forth herein); (iii) each reference to "Landlord" and "Tenant" shall be
deemed a reference to "Sublessor" and "Sublessee", respectively; (iv) with
respect to work, services, repairs, restoration, insurance, capital
improvements, or the performance of any other obligation of Master Lessor under
the Master Lease, the sole obligation of Sublessor shall be to notify and demand
performance from Master Lessor as and when requested to do so by Sublessee, and
to use Sublessor's reasonable efforts (provided Sublessee pays all reasonable
costs incurred by Sublessor in connection therewith) to obtain Master Lessor's
performance, and Sublessor shall further permit Sublessee to bring an action on
behalf of Sublessor against Master Lessor to compel the performance of such
obligations at the sole cost and expense of Sublessee; (v) with respect to any
obligation of Sublessee to be performed under this Sublease, wherever the Master
Lease grants to Sublessor a specified number of days to perform its
corresponding obligations under the Master Lease (excluding the payment of any
Rent), except as otherwise provided herein, Sublessee shall have two (2) fewer
days to perform the obligation, including, without limitation, curing any
defaults; (vi) Sublessor shall have no liability to Sublessee with respect to
(a) representations and warranties made by Master Lessor under the Master Lease,
(b) any indemnification obligations of Master Lessor under the Master Lease or
other obligations or liabilities of Master Lessor with respect to compliance
with laws, condition of the Premises or Hazardous Materials, and (c) Master
Lessor's repair, maintenance, restoration, upkeep, insurance and similar
obligations under the Master Lease, regardless of whether the incorporation of
one or more provisions of the Master Lease into the Sublease might otherwise
operate to make Sublessor liable therefor; (vii) with respect to any approval or
consent required to be obtained from the "Landlord" under the Master Lease, such
approval or consent must be obtained from both Master Lessor and Sublessor, and
the approval or consent of Sublessor may be withheld if Master Lessor's approval
or consent is not obtained; (viii) the following provisions of the Master Lease
are expressly not incorporated herein by reference: Sections 1, 2, 4, 57; the
seventh sentence of Section 8; the introductory clause in the first sentence the
second full paragraph of Section 12.C.; Sections 26 and 29.B. and.; the first
sentence of Section 32; Sections 34, 37, 38, 39, 41, 42, 46.E., 46.I., 46.L. and
46.N.; Exhibits A-G; and the First Amendment to Lease in its entirety: (ix) the
time limits set forth in Section 22(c) of the Master Lease as incorporated
herein shall be modified from ninety (90) days to thirty (30) days; (x) the time
limits in Section 46.M. of the Master Lease shall be changed from five (5) days
to fifteen (15) days; and (xi) notwithstanding anything to the contrary in this
Sublease, or the provisions of the Master Lease incorporated herein (including,
without limitation, the second paragraph of Sections 10 or 46.M. of the Master
Lease): (i) Sublessee shall be required to remove any Alterations placed in the
Project to the extent their removal is required by Master Lessor pursuant to the
terms of the Master Lease (unless Master Lessor has agreed, in writing, to allow
such Alterations to remain in the
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Project) and (ii) Sublessor's consent to any sublease or assignment shall be
deemed denied if Master Lessor's consent to such sublease or assignment is
denied. Sublessee acknowledges that the provisions of Section 13 of the Master
Lease, as incorporated herein, will require Sublessee, during the Term, to pay
all personal property taxes associated with the building improvements, fixtures
and equipment located on the Sublease Premises.
(b) Assumption of Obligations. This Sublease is and at all times shall
be subject and subordinate to the Master Lease and the rights of Master Lessor
thereunder. Sublessor covenants and agrees not to modify the Master Lease in a
manner that adversely affects Sublessee's rights hereunder. Sublessor shall not
commit or permit an of its employees or agents to commit on the Subleased
Premises any act or omission which shall violate any term or condition of the
Master Lease. Sublessor represents and warrants that the Master Lease is in full
force and effect and that Sublessor has no knowledge of any default by Sublessor
or Master Lessor under the Master Lease. Sublessee hereby expressly assumes and
agrees during the Term of this Sublease: (i) to comply with all provisions of
the Master Lease which are required to be performed by Sublessee hereunder; and
(ii) to perform all the obligations on the part of the "Tenant" to be performed
under the terms of the Master Lease during the term of this Sublease which are
required to be performed by Sublessee hereunder. Sublessee shall not commit or
permit to be committed on the Subleased Premises any act or omission which shall
violate any term or condition of the Master Lease. In the event of termination
of Sublessor's interest as "Tenant" under the Master Lease for any reason, this
Sublease shall terminate simultaneously (subject to any other agreement which
may exist between Sublessee and Master Lessor) with such termination of
Sublessor's interest. Sublessor shall not be permitted to voluntarily terminate
the Master Lease except in strict accordance with specific termination rights
granted Sublessor in the Sections 28 and 30 Master Lease.
18. Quiet Enjoyment. The Sublessor covenants that, upon the Sublessee
paying Rent in a timely manner and observing in a timely fashion all of the
Sublessee's other obligations hereunder, the Sublessee may peaceably and quietly
have, hold and enjoy the Subleased Premises throughout the term, free from any
interference from Sublessor, subject to the terms and conditions provided
elsewhere in this Sublease.
19. Notices: The address of each party shall be that address set forth
below their signatures at the end of this Sublease. Any party hereto may change
its address for the purposes of this Paragraph 19 by delivery of at least five
(5) days prior written notice of such change to the other party in the manner
set forth in this Paragraph. All notices, demands or communications in
connection with this Sublease shall be (i) in writing, (ii) properly addressed,
and (iii) either (a) served personally, (b) or sent by prepaid, certified mail,
return receipt requested, or (c) sent by recognized overnight courier service,
or (d) sent by facsimile. Notices served personally shall be deemed received on
the date of delivery. Notices mailed in accordance herewith shall be deemed
received on the date the U.S. Post Office receipts delivery or refusal to accept
delivery. Notices delivered by recognized courier service shall be deemed
received on the next business day following deposit with the courier service.
Notices sent by facsimile shall be deemed received upon electronic confirmation
of receipt of transmission. If a notice is received or deemed received on a
Saturday, Sunday or legal holiday, it shall be deemed received on the next
business day. All notices given to Master Lessor under the Master Lease shall be
considered received only when delivered in accordance with the Master Lease.
-9-
20. Hazardous Materials: Sublessee shall use no Hazardous Materials in,
on, under or about the Subleased Premises or the building, except in accordance
with the terms and conditions of the Master Lease, and except for the types and
quantities of Hazardous Materials set forth on Exhibit F attached hereto, and
Sublessee shall indemnify, defend with counsel reasonably acceptable to
Sublessor, protect, and hold harmless Sublessor, its employees, agents,
contractors, stockholders, officers, directors, successors, personal
representatives, and assigns from and against all claims, actions, suits,
proceedings, judgments, losses, costs, personal injuries, damages, liabilities,
deficiencies, fines, penalties, damages, attorneys' fees, consultants' fees,
investigations, detoxifications, remediations, removals, and expenses of every
type and nature, to the extent caused by the use, release, disposal, discharge
or emission of Hazardous Materials on or about the Subleased Premises during the
Term of this Sublease by Sublessee or Sublessee's employees or agents or
invitees other than Sublessor, Master Lessor or their agents or employees.
21. Conditions Precedent: Notwithstanding anything to the contrary set
forth in this Sublease, it shall be an express condition precedent to
Sublessor's and Sublessee's obligations hereunder that, and this Sublease shall
not be effective unless and until, Master Lessor has consented in writing to
this Sublease, as set forth on Exhibit G attached hereto ("Master Lessor's
Consent"). If Master Lessor does not consent in writing to this Sublease within
thirty (30) days after the full execution and delivery of this Sublease, then
either party may, at any time thereafter until such consent and non-disturbance
are obtained, terminate this Sublease upon written notice to the other,
whereupon any monies previously paid by Sublessee to Sublessor shall be
reimbursed to Sublessee.
22. Assignment and Subletting: Sublessee shall not assign this Sublease
or sublet all or any part of the Subleased Premises except in accordance with
Section 29 of the Master Lease. Any transfer circumstance or event which
constitutes an assignment or subletting under the Master Lease shall constitute
an assignment or subletting under this Sublease. Notwithstanding anything to the
contrary in this Sublease, Sublessee may assign this Sublease as well as its
rights and obligations hereunder without the consent of Sublessor as provided in
Section 29.E. of the Master Lease (as incorporated herein) so long as at the
time of such sublet or assignment, Sublessee has a net worth of $50,000,000.
23. Indemnity: Sublessee shall indemnify, defend, protect, and hold
Sublessor and its officers, agents, employees, successors and assigns
(collectively, "Sublessor's Agents") and Master Lessor harmless from and against
all claims, demands, actions, causes of action, losses and expenses
(collectively "Claims") which may be brought against Sublessor, Sublessor's
Agents or Master Lessor or which Sublessor, Sublessor's Agents or Master Lessor
may pay or incur by reason of any breach or default of this Sublease by
Sublessee, a misrepresentation by Sublessee of the matters set forth herein, or
the acts, omissions, negligence or willful misconduct of Sublessee or
Sublessee's employees, agents, contractors, or invitees in or about the
Subleased Premises during the Term to the extent that the Claims are not caused
by the negligence or willful misconduct of Sublessor or Sublessor's Agents.
Without limiting the generality of the foregoing, Sublessee shall indemnify,
defend, protect and hold Sublessor, Sublessor's Agents and Master Lessor
harmless from and against any Claims which may be brought against Sublessor,
Sublessor's Agents or Master Lessor or which Sublessor, Sublessor's Agents or
Master Lessor may pay or incur by reason of any violation of any laws by
Sublessee or its employees, agents or contractors.
-10-
24. Signage: Subject to Master Lessor's approval and subject to
Sublessee's compliance with all laws, codes, ordinances and covenants,
conditions and restrictions, beginning no later than the Second Floor Premises
Commencement Date, Sublessee shall be entitled to exclusive use of that monument
sign located on the right side of the entrance to the Project at the northeast
corner of Automation Parkway and Xxxxxxxxx Road. In addition, subject to Section
20 of the Master Lease, Sublessee shall have the exclusive right to place
signage on the interior and exterior of the Project. Sublessor shall remove all
of its signage at the Project prior to the Second Floor Premises Commencement
Date. Sublessee acknowledges that the existing monument was subject to special
permitting requirements and that Sublessee may have to also seek special
permitting or replace such monument with a smaller sized monument.
25. Successors: This Sublease shall be binding on and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns.
26. Leaseback of Storage Space: Sublessee shall use commercially
reasonable efforts, but without obligation to do so, to make available no more
than 5,000 square feet of storage space for lease by Sublessor for a period of
no more than six months following the Second Floor Premises Commencement Date.
Such space shall be provided at the same Base Rent plus prorata expenses as paid
by Sublessee under this Sublease. Sublessor would have access to such space
during normal business hours.
27. Broker: Sublessor and Sublessee represent, warrant and agree that
the only brokers or agents with which they have dealt in connection with this
Lease are CB Xxxxxxx Xxxxx, Inc. ("Sublessor's Broker") and Cornish & Xxxxx
Commercial ("Sublessee's Broker"), for whose commissions Sublessor shall be
solely responsible pursuant to a separate brokerage commission agreement.
Sublessor and Sublessee agree to indemnify, defend and hold the other harmless
of, from and against any claims against or costs and expenses (including
reasonable attorney's fees and expenses) incurred by the other resulting from a
misrepresentation, breach of warranty, nonfulfillment of warranty or breach of
agreement with respect to the foregoing. The provisions of this Paragraph 26
shall survive the expiration of the Term or sooner termination of this Sublease.
28. Counterparts: This Sublease may be executed in one or more
counterparts each of which shall be deemed an original but all of which together
shall constitute one and the same instrument. Signature copies may be detached
from the counterparts and attached to a single copy of this Sublease physically
to form one document. A facsimile counterpart signature delivered to each party
shall be deemed an original for the purpose of the execution of this Sublease.
29. Entire Agreement: This Sublease and the provisions of the Master
Lease incorporated herein by the express terms of this Sublease constitute the
complete and exclusive agreement among the parties with respect to the matters
contained herein and supersede all prior written or oral agreements or
statements by and among the parties hereto regarding the same, provided that
this Sublease shall be at all times subject to all of the terms and conditions
of the Master Lease.
-11-
IN WITNESS WHEREOF, the parties have executed this Sublease as of the
day and year first above written.
SUBLESSEE: SUBLESSOR:
2WIRE, INC. KOMAG INCORPORATED
By: By:
-------------------------------- ------------------------------------
Printed Printed
Name: Name:
------------------------------ ----------------------------------
Its: Its:
------------------------------- -----------------------------------
Date: Date:
------------------------------ ----------------------------------
Address: Address: 0000 Xxxxxxxxxx Xxxxxxx
Xxx Xxxx, XX 00000
Attention: Attention: Treasurer
FAX: FAX:
-12-
EXHIBIT A
MASTER LEASE
This Exhibit is a copy of the Lease Agreement dated May 24, 1996 between Sobrato
Development Companies #871 and Komag, Incorporated (incorporated by reference
from Exhibit 10.1.12 filed with the Company's report on Form 10-K for the year
ended December 29, 1996).
EXHIBIT B
PARKING AREA
This exhibit is a drawing of the parking lot associated with the building under
lease.
EXHIBIT C
INITIAL AND FIRST FLOOR PREMISES AND PROJECT
This is a two page drawing of the layout of the building under sublease which
depicts both the first and second floor.
EXHIBIT D
XXXX OF SALE
For good and valuable consideration the receipt of which is hereby
acknowledged, Komag, Inc. a Delaware corporation, ("Seller") does hereby sell,
transfer, and convey to 2Wire, Inc., a Delaware corporation, or its designated
assignee ("Buyer"), all Transferred Property owned by Seller used in connection
with the Project (as such terms are defined in that certain Sublease dated as of
January 14, 2000, between Seller and Buyer) which Transferred Property is listed
on Schedule 1 attached hereto.
Seller does hereby represent and warrant to Buyer that, except as
identified on Schedule 1, Seller is the sole, lawful owner of such personal
property, that Seller has good title and full right to sell the same free and
clear of any lien, encumbrance or claim of any nature, and will warrant and
defend the title thereto unto Buyer, its successors and assigns, against the
claims and demands of all persons whomsoever.
Seller will, at the request of Buyer and without further consideration,
promptly execute and deliver, and will cause its officers, agents and employees
to execute and deliver, such other instruments of sale, transfer, conveyance and
assignment, and take such other actions, as may reasonably be necessary to
effectuate the transaction contemplated hereby.
Seller, on behalf of itself and its successors and assigns, does hereby
agree to indemnify and hold Buyer, its successors and assigns, harmless from any
and all obligations arising under or in relation to the Transferred Property or
any maintenance, service and supply contracts related thereto, prior to the date
hereof but not thereafter.
SELLER:
KOMAG, INC.,
a Delaware corporation
By:
--------------------------------
Its:
--------------------------------
DATED this _____ day of January, 2000
SCHEDULE 1
Description of Transferred Property
1. Subject only to the exclusions in paragraphs 2 and 3, below, the property
to be purchased by Sublessee from Sublessor pursuant to paragraph 10 of the
Sublease (the "Transferred Property") includes all fixtures, furniture,
equipment and personal property existing on the Premises as of December 20,
1999. Without limiting the generality of the foregoing, and for purposes of
clarification only, the Transferred Property specifically includes: the
equipment racks in the telecom and computer rooms, the patch panels with
existing in-place wiring, all security system elements located in the
building, all AV equipment in the building that is physically attached to
the structure such as monitors, speakers, screens, all cafeteria equipment
and furniture, utensils, refrigerators, stoves, all file cabinets, book
cases, cubicles, desks, chairs, conference room furniture and equipment,
Polycom phones, clocks, pictures and wall hangings, all built-in fixtures,
lights, cabling in the video conference rooms.
2. Notwithstanding the provisions of paragraph 1, above, the following items
are excluded from the Transferred Property: all telephones (other than
Polycom phones), computers, servers, 3Com switches, routers, tape storage
cabinets, ups, APC roll around equipment cabinets, HP plotter, printers,
copiers, and equipment owned by 3rd parties (the only items as such being
the coffee services), fireproof file cabinets, the Picturetel video
conferencing equipment including codec, cameras, microphones, monitors and
connected telecom equipment, and all items owned personally by Komag
employees.
3. Notwithstanding the provisions of paragraph 1, above, at any time prior to
February 1, 2000, Sublessor, at its sole cost and with the reasonable prior
written consent of Sublessee, may remove from the Premises and retain
selected items of Transferred Property ("Retained Property"), provided: (a)
Sublessor shall provide Sublessee with a complete list of such Retained
Property together with original invoices, receipts or other reasonably
satisfactory evidence of the original cost of such Retained Property, and
(b) the $200,000 down payment to be paid by Sublessee to Sublessor on or
before February 1, 2000, shall be reduced by an amount equal to the total
original cost of the Retained Property multiplied by forty (40) percent.
4. Sublessor promptly shall repair and restore any damage to the Premises
caused by Sublessor's removal of items excluded from the Transferred
Property and/or any Retained Property.
EXHIBIT E
DO NOT DESTROY THIS NOTE: When paid, this note must be surrendered to
the Borrower.
PROMISSORY NOTE
(PRINCIPAL AND INTEREST)
$200,000 _________________, California, __________________, 2000
In installments and at the times hereinafter stated, for value received 2Wire,
Inc., a Delaware corporation ("Borrower") promises to pay to Komag, Inc., a
Delaware corporation or order ("Lender"), at 0000 Xxxxxxxxxx Xxxxxxx, Xxx Xxxx,
Xxxxxxxxxx 00000, Attn: Accounts Receivable, the principal sum of Two Hundred
Thousand Dollars, with interest from March 1, 2000 on the amounts of principal
remaining from time to time unpaid, until said principal sum is paid at the rate
of twelve percent (12%) per cent per annum, compounded monthly. Principal and
Interest shall be due in monthly installments of Three Thousand Five Hundred and
Thirty-Dollars and 55/00 ($3530.55), on the first day of each and every month,
beginning on the first day of March, 2000. On March 1, 2007, all remaining
payments of interest and principal, if any, shall be immediately due and
payable.
AT ANY TIME, THE PRIVILEGE IS RESERVED TO PRE-PAY ALL OR ANY PORTION OF
THE BALANCE OWING UNDER THIS NOTE. Each payment shall be credited first, on the
interest then due; and the remainder on the principal sum; and interest shall
thereupon cease upon the amount so credited on the said principal sum. Should
default be made in the payment of any of said installments when due, then the
whole sum of principal and interest shall become immediately due and payable at
the option of the holder of this note. In addition to failure to make payment
when due, it shall also be considered a default under this note if Borrower
defaults under the terms and conditions under that certain Sublease dated
January 14, 2000 between Borrower and Lender for premises located at 0000
Xxxxxxxxxx Xxxxxxx, Xxx Xxxx, XX. Borrower hereby waives presentment, demand,
protest and notice of any kind, including notice of presentment, demand,
protest, dishonor and nonpayment. No waiver by the holder hereof of any default
shall be effective unless in writing nor shall it operate as a waiver of any
other default or of the same default on a future occasion. No failure to
accelerate the indebtedness evidenced hereby by reason of any default hereunder
and no acceptance by the holder hereof of a past-due payment shall be construed
as a novation of this Note. Should any legal action or proceeding be commenced
to collect this Note or any part of the indebtedness evidenced hereby, the
prevailing party in such action or proceeding shall be entitled to collect from
the non-prevailing party reasonable attorneys' fees and costs. Time is of the
essence of this Note. The validity, construction, effect, performance and
enforcement of this Note shall be governed in all respects by the laws of the
State of California (without reference to conflicts of laws). Principal and
interest are payable in lawful money of the United States of America.
2WIRE, INC., a Delaware corporation
By:
---------------------------------------------
Its:
---------------------------------------------
Dated:
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EXHIBIT F
HAZARDOUS MATERIALS
No Hazardous Materials shall be used in the Subleased Premises other that
Hazardous Materials contained in products used for typical office and janitorial
purposes which shall be maintained in accordance with laws.
EXHIBIT G
MASTER LESSOR'S CONSENT
LANDLORD'S CONSENT TO SUBLEASE AND TO ALTERATIONS
Sobrato Development Companies #960, successor-in-interest to Sobrato
Development Companies #871 ("Landlord"), as Landlord under that certain Lease
dated May 24, 1996 (the "Lease") by and between Landlord and Komag Incorporated
("Tenant"), as Tenant, subject to and specifically conditioned upon the
following terms and conditions, hereby grants its consent to the Sublease dated
January ___, 2000, made by and between the Tenant, as Sublandlord, and 2Wire,
Inc. ("Subtenant"), as Subtenant, a copy of which is attached as Exhibit A (the
"Sublease"), covering that certain premises commonly known as 1704 Automation
Parkway (the "Premises"). In addition, Landlord grants its consent to the
alterations and improvements to the Premises proposed to be constructed by
Subtenant as set forth on attached Exhibit B ("Subtenant Improvements").
As conditions to this Landlord's Consent to Sublease and to Alterations
("Consent"), it is understood and agreed as follows:
1. No Release. This Consent shall in no way release Tenant or any
person or entity claiming by, through or under Tenant, including Subtenant, from
any of its covenants, agreements, liabilities and duties under the Lease, as the
same may be amended from time to time, regardless of any provision to the
contrary in the Sublease.
2. Specific Provisions of Lease and Sublease. Except as otherwise
specifically provided herein, this Consent does not constitute approval by
Landlord of any of the provisions of the Sublease, nor shall the same be
construed to amend the Lease in any respect; any purported modifications being
solely for the purpose of setting forth the rights and obligations as between
Tenant and Subtenant, but not binding Landlord. The Sublease is, in all
respects, subject and subordinate to the Lease, as the same may be amended.
Furthermore, as between Subtenant and Landlord, and Tenant and Landlord (but not
as between Tenant and Subtenant) in the case of any conflict between the
provisions of this Consent or the Lease and the provisions of the Sublease, the
provisions of this Consent or the Lease, as the case may be, shall prevail
unaffected by the Sublease.
3. Tenant's Continuing Liability. Tenant shall be liable to Landlord
for any default under the Lease, whether such default is caused by Tenant or
Subtenant or anyone claiming by or through either Tenant or Subtenant, but the
foregoing shall not be deemed to restrict or diminish any right which Landlord
or Tenant may have against Subtenant pursuant to the Lease, in law or in equity
for violation of the Lease or otherwise, including, without limitation, the
right to enjoin or otherwise restrain any violation of the Lease by Subtenant.
4. Default by Tenant under the Lease. If Tenant defaults under the
Lease, Landlord may elect to receive directly from Subtenant all sums due or
payable to Tenant by Subtenant pursuant to the Sublease. Upon written notice
from Landlord, Subtenant shall thereafter pay to Landlord any and all sums due
or payable under the Sublease. In such event, Tenant shall receive from Landlord
a corresponding credit for such sums against any payments then due or thereafter
becoming due from Tenant.
5. Termination of Lease. If at any time prior to the expiration of the
term of the Sublease the Lease shall terminate or be terminated for any reason,
the Sublease shall simultaneously terminate provided, however, that either
Landlord or Subtenant may, by written notice delivered to the other within
thirty (30) days after termination of the Lease, elect to continue Subtenant's
tenancy uninterrupted for the remainder of the term of the Sublease subject to
the following: (a) Subtenant shall attorn to Landlord upon all of the terms and
conditions of the Lease (as modified by paragraphs 7 and 8, below) except that
the Base Rent set forth in the Sublease shall be substituted for the Base Rent
set forth in the Lease and the computation of Additional Rent as provided in the
Lease shall be modified as set forth in the Sublease, and (b) neither Landlord
nor Subtenant shall be responsible to the other for the acts or omissions of
Tenant occurring prior to the election to continue Subtenant's tenancy pursuant
to this paragraph. The foregoing provisions of this paragraph shall apply
notwithstanding that, as a matter of law, the Sublease may otherwise terminate
upon the termination of the Lease and shall be self-operative upon such written
notice by Landlord or Subtenant, and no further instrument shall be required to
give effect to said provisions. However, upon the request of the other, Landlord
and Subtenant agree to execute, from time to time, documents in confirmation of
the foregoing provisions of this paragraph reasonably satisfactory to the
requesting party.
6. Sublease Profits. Landlord and Tenant agree that after making
deductions based on the terms of Section 29.B.(i)-(vi) of the Lease, Landlord
shall not be entitled to any payment of excess or bonus rent paid by Subtenant
to Tenant under the terms of the Sublease. Landlord shall also not have any
right to any portion of the amounts paid in consideration of the Transferred
Property as identified in paragraph 10 of the Sublease.
7. Construction of Subtenant Improvements. Landlord's consent to the
Subtenant Improvements is an accommodation to Subtenant, and Landlord shall have
no liability or responsibility, either express or implied, for the completeness
or suitability of the plans and specifications for their intended purpose.
Subtenant shall construct the Subtenant Improvements in accordance with all
existing applicable municipal, local, state and federal laws, statutes, rules,
regulations and ordinances and will not commence construction until it has
obtained and paid for all required permits for the contemplated work. Subtenant
will notify Landlord of the date of commencement of construction to enable
Landlord to post Notices of Non-Responsibility, and Subtenant shall obtain
Landlord's prior written consent to any substantial and material changes in the
nature or scope of the Subtenant Improvements. Subtenant agrees to indemnify and
hold Landlord and Tenant harmless from any loss, cost, damage or expense of any
kind or nature resulting from the work, including, without limitation, any loss
or damage as result of defective work from any cause; any damage or injury to
persons or property, including any damage to the structure or adjacent
improvements; claims of workmen, suppliers and/or professional consultants,
including mechanics lien claims; and any cost or expense incurred by Landlord or
Tenant in defense of, repair of or payment of such claims, including their
reasonable attorneys' fees. Upon written demand from Landlord, Subtenant shall
immediately pay to Landlord any such cost or expense incurred by Landlord.
8. Removal of Subtenant Improvements. Neither Tenant nor Subtenant
shall be obligated to remove any of the Subtenant Improvements upon expiration
of the term or sooner termination of the Sublease. However, Subtenant shall have
the right remove any or all of the Subtenant Improvements, together with its
personal property and trade fixtures, at any time during the term of the
Sublease, or upon expiration or sooner termination of the Sublease, provided
that Subtenant restores the Premises to the condition which existed prior to the
construction of the Subtenant Improvements, reasonable wear and tear excepted.
Any damage or destruction caused by Subtenant's removal of such items shall be
repaired at Subtenant's sole cost and expense.
9. Notices. Subtenant agrees to promptly deliver a copy to Landlord of
all notices of default and all other notices sent to Tenant under the Sublease,
and Tenant agrees to promptly deliver a copy to Landlord of all such notices
sent to Subtenant under the Sublease. Landlord agrees to promptly deliver to
Subtenant a copy of all such notices sent to Tenant. Any notices required or
allowed to be given hereunder shall be delivered personally, or sent by United
States registered or certified mail, postage prepaid, return receipt requested,
or by reputable overnight courier, to Landlord, at its address set forth in the
Lease, and to Tenant and Subtenant, at their respective addresses set forth in
the Sublease.
Landlord: Sobrato Development Companies #960,
a California limited partnership
By
------------------------------------------------
Its
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Tenant: Komag Incorporated, a Delaware corporation
By
------------------------------------------------
Its
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Subtenant: 2Wire, Inc., a Delaware corporation
By
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Its
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