SUBLEASE AGREEMENT
I. DEFINED TERMS
Base Rent:
A. From Phase I Commencement Date:
Monthly: $67,950.00
Annually: $815,400.00
From Phase II Commencement Date:
Monthly: $135,900.00
Annually: $1,630,800.00
B. From the first annual anniversary of the Commencement Date (Phase I)
through the date preceding the second annual anniversary of the Commencement
Date:
Monthly: $141,336.00
Annually: $1,696,032.00
C. From the second annual anniversary of the Commencement Date (Phase I)
through the date preceding the third annual anniversary of the Commencement
Date:
Monthly: $146,772.00
Annually: $1,761,264.00
D. From the third annual anniversary of the Commencement Date (Phase I)
through the date preceding the fourth annual anniversary of the Commencement
Date:
Monthly: $152,208.00
Annually: $1,826,496.00
E. From the fourth annual anniversary of the Commencement Date (Phase I)
through the date preceding the fifth annual anniversary of the Commencement
Date:
Monthly: $157,644.00
Annually: $1,891,728.00
F. From the fifth annual anniversary of the Commencement Date (Phase I)
through the date preceding the sixth annual anniversary of the Commencement
Date:
Monthly: $163,080.00
Annually: $1,956,960.00
G. From the sixth annual anniversary of the Commencement Date (Phase I)
through March 31, 2004:
Monthly: $168,516.00
Annually: $2,022,192.00
Broker: Sublessor's Broker: CPS Realty
Sublessee's Broker: Ernst & Young Xxxxxxx Xxxxxxxxx
Building: 0000 Xxxxxxx Xxxxxxxxxx
Xxxxx Xxxxx, Xxxxxxxxxx
Document Date: September 11, 1997.
Expiration
Date: March 31, 2004.
Landlord: Sobrato Interests, a California general partnership
Master
Lease: Dated as of March 10, 1989.
Permitted
Uses: General office use, developing, assembling, operating and
selling computers and computer parts, accessories, manuals
and software.
Premises: Improved real property as more particularly described in the
Master Lease, attached hereto as EXHIBIT A, consisting of
approximately 108,720 rentable square feet.
Commencement Date/
Occupancy Date:
Phase I: Upon the earlier to occur of: (i) the date the Phase I
portion of the Sublet Space is Ready
for Occupancy (as defined in the Work Letter), or (ii)
January 1, 1998; provided, however, that such January
1, 1998 date shall be extended one (1) day for each day
after November 1, 1997 that Sublessor delivers
possession of the Phase I portion of the Sublet Space
to Sublessee.
Phase II: If the Sublessee constructs the Phase II Improvements,
the Phase II Commencement Date shall be upon the
earlier to occur of (i) the date the Phase II portion
of the Sublet Space is Ready for Occupancy, or (ii)
January 1, 1999; provided, however, that such January
1, 1999 date shall be extended one (1) day for each day
after October 1, 1998 that Sublessor delivers
possession of the Phase II portion of the Sublet Space
to Sublessee. If the Sublessor constructs the Phase II
Improvements, the Phase II Commencement Date shall
occur upon the date the Phase II portion of the Sublet
Space is Ready for Occupancy.
Security
Deposit: $136,000.00
Sublessee: Yahoo!, a California corporation
Sublessee's
Address: Yahoo!
0000 Xxxxxxx Xxxxxxxxxx, Xxxxx 000
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Attn: Xx. Xxxx Xxxxxxxxxx
Phone: (000) 000-0000
Sublessee's
Share:
A. From Phase I Commencement Date:
50% of the total Rentable Area of the Building
B. From Phase II Commencement Date:
100% of the total Rentable Area of the Building
Sublessor: XXXXXX CORPORATION, a Delaware corporation
Sublessor's
Address: 0000 Xxxx Xxxxxx Xxxxxx
Mail Stop 110
X.X. Xxx 0000
Xxxxxxxxx, Xxxxxxxxxx 00000-0000
Attn: Director, Corporate Real Estate
Phone: (000) 000-0000
Sublet Space:
Phase I: That portion of the Premises covering the second floor of the
Building, as more particularly described in the Sublet Space
Floor Plan, attached hereto as EXHIBIT B, consisting of
approximately 54,360 rentable square feet. Sublessee
acknowledges that the above-described square footage for the
Phase I portion of the Sublet Space includes an approximately 40
square foot security closet located on the second floor which
serves the entire building.
Phase II: That portion of the Premises covering the first floor of the
Building, as more particularly described in the Sublet Space
Floor Plan, attached hereto as EXHIBIT C, consisting of
approximately 54,360 rentable square feet, and together with
Phase I Sublet Space, consisting of approximately 108,720
rentable square feet.
Term: The period commencing on the Phase I Commencement Date and ending
on the Expiration Date, unless terminated earlier in accordance
with its terms.
Exhibits: EXHIBIT A - Master Lease
EXHIBIT B - Phase I: Sublet Space Floor Plan
EXHIBIT C - Phase II: Sublet Space Floor Plan
EXHIBIT D - Commencement Date Memorandum
EXHIBIT E - Work Letter
II.
THIS SUBLEASE AGREEMENT ("Sublease") is entered as of the Document
Date by and between Sublessor and Sublessee.
THE PARTIES ENTER this Sublease on the basis of the following facts,
understandings and intentions:
a. Sublessor is presently a lessee of the Premises in the Building
pursuant to the Master Lease by and between Landlord and Sublessor. A copy of
the Master Lease with all exhibits and addenda thereto is attached hereto as
EXHIBIT A.
b. Sublessor desires to sublease the Sublet Space to Sublessee and
Sublessee desires to sublease the Sublet Space from Sublessor on all of the
terms, covenants and conditions hereinafter set forth.
c. All of the terms and definitions in the Defined Terms section are
incorporated herein by this reference.
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants and promises
of the parties, the parties hereto agree as follows:
1. SUBLEASE. Sublessor shall sublease to Sublessee, and Sublessee
shall sublease from Sublessor, the Sublet Space for the Term upon all of the
terms, covenants and conditions herein contained. In addition, Sublessor shall
lease to Sublessee, and Sublessee shall lease from Sublessor, any and all
permanent improvements ("Improvements") on the Sublet Space constructed and/or
owned by Sublessor, upon all of the terms, covenants and conditions herein
contained. As used herein, "Sublet Space" shall include the Sublet Space and
the Improvements. If Sublessor, for any reason whatsoever, cannot deliver
possession of the Phase I portion of the Sublet Space to Sublessee on or before
January 1, 1998, this Sublease shall not be void or voidable nor shall Sublessor
be liable to Sublessee for any resulting loss or damages of any kind,
consequential or otherwise. Notwithstanding any provision in this Sublease to
the contrary, if the Phase II Improvements for the Sublet Space are being
constructed by Sublessor, and if the Commencement Date for Phase II of the
Sublet Space has not occurred by March 31, 1999 (which date shall be extended
one day for each event of Sublessee Delay), then Sublessee, by written notice to
Sublessor given within ten (10) business days after March 31, 1999, may
terminate this Sublease without any liability to Sublessor. In any event, if
the Phase I Commencement Date is other than January 1, 1998, or the Phase II
Commencement Date is other than January 1, 1999, then Sublessor and Sublessee
shall execute a Commencement Date Memorandum in the form attached hereto as
EXHIBIT D evidencing the relevant actual commencement date.
2. CONDITION OF SUBLET SPACE.
a. PHYSICAL CONDITION. As of the Document Date, Sublessee
acknowledges that Sublessee shall have conducted Sublessee's own investigation
of the Sublet Space and the physical condition thereof, including accessibility
and location of utilities, improvements, existence of hazardous materials,
including but not limited to asbestos, asbestos containing materials,
polychlorinated biphenyls (PCB) and earthquake preparedness, which in
Sublessee's judgment affect or influence Sublessee's use of the Sublet Space and
Sublessee's willingness to enter this Sublease. Sublessee recognizes that
Sublessor would not sublease the Sublet Space except on an "as is" basis and
acknowledges that Sublessor has made no representations of any kind in
connection with improvements or physical conditions on, or bearing on, the use
of the Sublet Space. Sublessee shall rely solely on Sublessee's own inspection
and examination of such items and not on any representations of Sublessor,
express or implied. Sublessee further recognizes and agrees that neither
Sublessor nor Landlord shall be required to perform any work of construction,
alteration or maintenance of or to the Sublet Space; provided, however,
Sublessor shall deliver the Sublet Space to Sublessee in broom clean condition
and with all the improvements contemplated in Section 17 completed.
b. FURTHER INSPECTION. Sublessee represents and warrants to
Sublessor that as of the Document Date Sublessee shall examine and inspect all
matters with respect to taxes, income and expense data, insurance costs, bonds,
permissible uses, the Master Lease, zoning, covenants, conditions and
restrictions and all other matters which in Sublessee's judgment bear upon the
value and suitability of the Sublet Space for Sublessee's purposes. Sublessee
has and will rely solely on Sublessee's own inspection and examination of such
items and not on any representations of Sublessor, express or implied.
3. SUBLEASE SUBJECT TO MASTER LEASE.
a. INCLUSIONS. It is expressly understood, acknowledged and
agreed by Sublessee that all of the other terms, conditions and covenants of
this Sublease shall be those stated in the Master Lease except as excluded in
SectionE3.b herein, modified as appropriate in the circumstances so as to make
such Articles, and any Sections contained therein, applicable only to the
subleasing hereunder by Sublessor of the particular Sublet Space covered hereby.
Whenever the word "Premises" is used in the Master Lease, for purposes of this
Sublease, the word Sublet Space shall be substituted. Sublessee shall be
subject to, bound by and comply with all of said Articles and Sections of the
Master Lease with respect to the Sublet Space and shall satisfy all applicable
terms and conditions of the Master Lease relating to the Sublet Space for the
benefit of both Sublessor and Landlord, it being understood and agreed that
wherever in the Master Lease the word "Tenant" appears, for the purposes of this
Sublease, the word "Sublessee" shall be substituted, and wherever the word
"Landlord" appears, for the purposes of this Sublease, the word "Sublessor"
shall be substituted; and that upon the breach of any of said terms, conditions
or covenants of the Master Lease by Sublessee or upon the failure of Sublessee
to pay Rent or comply with any of the provisions of this Sublease, Sublessor may
exercise any and all rights and remedies granted to Landlord by the Master
Lease. In the event of any conflict between this Sublease and the Master Lease,
the terms of this Sublease shall control. It is further understood and agreed
that Sublessor has no duty or obligation to Sublessee under the aforesaid
Articles and Sections of the Master Lease other than to perform the obligations
of Sublessor as lessee under the Master Lease during the Term of this Sublease.
Whenever the provisions of the Master Lease incorporated as provisions of this
Sublease require the written consent of Landlord, said provisions shall be
construed to require the written consent of both Landlord and Sublessor.
Sublessee hereby acknowledges that it has read and is familiar with all the
terms of the Master Lease, and agrees that this Sublease is subordinate and
subject to the Master Lease and that any termination thereof not due to a
default by Sublessor thereunder shall likewise terminate this Sublease.
Sublessor represents to Sublessee that the Master Lease is in full force and
effect and that no written notices of default have been sent by Sublessor to
Landlord, or received by Sublessor from Landlord, with respect to the Master
Lease, nor to the current actual knowledge of Sublessor has any event or
condition occurred which, with the passing of time or the giving of notice,
would result in an Event of Default by Sublessor under the Master Lease. If
Sublessor receives a written notice from Landlord that an Event of Default by
Sublessor under the Master Lease has occurred, Sublessor shall deliver a true
and correct copy of such written notice to Sublessee within five (5) business
days of Sublessor's receipt thereof.
b. EXCLUSIONS. The terms and provisions of the following
Sections and portions of the Master Lease are not incorporated into this
Sublease: 4, Landlord's obligations under Sections 5 and 6; Sections 30, 31 and
36; First Addendum to Lease.
c. TIME FOR NOTICE. The time limits provided for in the
provisions of the Master Lease for the giving of notice, making of demands,
performance of any act, condition or covenant, or the exercise of any right,
remedy or option, are amended for the purposes of this Sublease by lengthening
or shortening the same in each instance by five (5) days, as appropriate, so
that notices may be given, demands made, or any act, condition or covenant
performed, or any right, remedy or option hereunder exercised, by Sublessor or
Sublessee, as the case may be, within the time limit relating thereto contained
in the Master Lease. If the Master Lease allows only five (5) days or less for
Sublessor to perform any act, or to undertake to perform such act, or to correct
any failure relating to the Premises or this Sublease, then Sublessee shall
nevertheless be allowed three (3) days to perform such act, undertake such act
and/or correct such failure.
4. LANDLORD'S OBLIGATIONS. It shall be the obligation of Landlord
to (i) provide all services to be provided by Landlord under the terms of the
Master Lease and (ii) to satisfy all obligations and covenants of Landlord made
in the Master Lease. Sublessee acknowledges that Sublessor shall be under no
obligation to provide any such services or satisfy any such obligations or
covenants; provided, however, Sublessor, upon written notice by Sublessee, shall
diligently attempt to enforce all obligations of Landlord under the Master Lease
(without requiring Sublessor to spend more than a nominal sum, which nominal sum
shall be limited to all costs associated with the preparation of and transmittal
to Landlord of documentation from Sublessor or Sublessee's attorneys determining
the obligations to be performed by Landlord under the Master Lease). If, after
receipt of written request from Sublessee, Sublessor shall fail or refuse to
take action for the enforcement of Sublessor's rights against Landlord with
respect to the portion of the Premises then occupied by Sublessee ("Action"),
Sublessee shall have the right to take such Action in its own name, and for that
purpose and only to such extent, all of the rights of Sublessor as tenant under
the Master Lease are hereby conferred upon and assigned to Sublessee, and
Sublessee shall be subrogated to such rights to the extent that the same shall
apply to the portion of the Premises then occupied by Sublessee. If any Action
against Landlord in Sublessee's name shall be barred by reason of lack of
privity, nonassignability or otherwise, Sublessee may take such Action in
Sublessor's name; provided that Sublessee has obtained the prior written consent
of Sublessor, which consent shall not be unreasonably withheld; and provided,
further, that Sublessee shall indemnify, protect, defend by counsel reasonably
satisfactory to Sublessor and hold Sublessor harmless from and against any and
all claims, demands, actions, suits, proceedings, liabilities, obligations,
losses, damages, judgments, costs and expenses (including, without limitation,
reasonable attorneys' fees) which Sublessor may incur or suffer by reason of
such Action, except to the extent incurred or suffered by reason of Sublessor's
negligent acts or omissions. Sublessor hereby agrees to perform its obligations
as tenant under the Master Lease if and to the extent those obligations are not
assumed by Sublessee pursuant to the terms of this Sublease. If a default by
Landlord under the terms of the Master Lease shall result in the excuse of
Sublessor from the performance of any of its obligations to be performed under
the Master Lease or result in any reduction or abatement in the base rent or
additional rent to be paid by Sublessor thereunder, then Sublessee shall be
excused from the performance of a corresponding obligation and/or shall be
entitled to a proportionate reduction in or abatement of the Rent to be paid by
Sublessee hereunder.
5. RENT.
a. INITIAL RENT. Upon execution hereof, Sublessee shall
deliver the first month's Base Rent to Sublessor, to be applied against
Sublessee's first obligation to pay Base Rent hereunder. Sublessee shall pay to
Sublessor the Base Rent in advance on the first day of each month of the Term,
commencing on the Phase I Commencement Date without being invoiced by Sublessor.
In the event the first day of the Term shall not be the first day of a calendar
month or the last day of the Term is not the last day of the calendar month, the
Base Rent shall be appropriately prorated based on the number of days in such
month. All installments of Base Rent shall be delivered to Sublessor's Address,
or at such other place as may be designated in writing from time to time by
Sublessor, in lawful money of the United States and without deduction or offset
for any cause whatsoever.
b. NET RENTAL. Except for services specifically requested by
Sublessor for the sole benefit of Sublessor, Sublessee shall be responsible for
Sublessee's Share of all costs and expenses of every kind and nature which may
be imposed, at any time, on Sublessor pursuant to the Master Lease (except for
Base Rent, as defined in the Master Lease) including, but not limited to,
additional rent, operating costs, and tax costs, all as defined in the Master
Lease, except for utilities, which in 1998 only shall be billed at the same rate
per square foot that Sublessee currently pays at 0000 Xxxxxxx Xxxxxxxxxx, Xxxxx
000. That current utility rate will be defined as the twelve (12) month period
beginning January 1, 1997 and ending December 31, 1997. As hereinafter used,
"Rent" shall include Base Rent and all additional charges to be paid by
Sublessee pursuant to this Section 5.b. In the event Sublessee shall require
additional services beyond those standard services provided in the Master Lease,
then Sublessee shall pay the costs of those services. Sublessor shall deliver
to Sublessee invoices for services provided to the Sublet Space. Sublessee
shall pay the amounts due under such invoices directly to the service provider
prior to or on the date that such payments are due.
c. INTEREST. Any payment of Rent or other amount from
Sublessee to Sublessor in this Sublease which is not paid on the date due shall
accrue interest from the date due until the date paid at an annual rate of ten
percent (10%) (the "Interest Rate"). This Section 5 shall not relieve Sublessee
of Sublessee's obligation to pay any amount owing hereunder at the time and in
the manner provided.
6. SECURITY DEPOSIT. Upon execution hereof, Sublessee shall deposit
the Security Deposit with Sublessor. The Security Deposit shall secure
Sublessee's obligations under this Sublease to pay Base Rent and other monetary
amounts, to maintain the Sublet Space and repair damages thereto, to surrender
the Sublet Space to Sublessor in clean condition and repair upon termination of
this Sublease and to discharge Sublessee's other obligations hereunder.
Sublessor may use and commingle the Security Deposit with other funds of
Sublessor. If Sublessee fails to perform Sublessee's obligations hereunder,
Sublessor may, but
without any obligation to do so, apply all or any portion of the Security
Deposit towards fulfillment of Sublessee's unperformed obligations. If
Sublessor does so apply any portion of the Security Deposit, Sublessee's failure
to remit to Sublessor a sufficient amount in cash to restore the Security
Deposit to the original amount within five (5) days after receipt of Sublessor's
written demand to do so shall constitute an event of default. Upon termination
of this Sublease, if Sublessee has then performed all of Sublessee's obligations
hereunder, Sublessor shall return the Security Deposit, or whatever amount
remains of the Security Deposit after Sublessor applied all or a portion of the
Security Deposit to perform Sublessee's obligations hereunder, to Sublessee
without payment of interest.
7. USE. The Sublet Space is to be used for the Permitted Uses, and
for no other purpose or business without the prior written consent of Sublessor.
In no event shall the Sublet Space be used for a purpose or use prohibited by
the Master Lease.
8. ASSIGNMENT AND SUBLETTING. Sublessee shall not sell, assign,
encumber, sublease or otherwise transfer by operation of law or otherwise the
Sublet Space or this Sublease without Sublessor's and Landlord's consent.
Sublessor's consent shall not be unreasonably withheld or delayed. Any such
sale, assignment, encumbrance, sublease or other transfer in violation of the
terms of this Sublease shall be void and shall be of no force or effect.
9. ALTERATIONS. Except with respect to the Phase I Improvements and
Phase II Improvements, which shall be performed in accordance with the terms of
the Work Letter attached hereto as EXHIBIT E, Sublessee shall not make, or
suffer to be made, any alteration or addition to the Sublet Space, or any part
thereof, without the written consent of Sublessor and Landlord first had and
obtained, which shall not be unreasonably withheld and shall be based upon
Sublessee's delivering to Sublessor and Landlord the proposed architectural and
structural plans for all such alterations; Sublessee shall deliver such plans to
Sublessor and Landlord at least ten (10) days prior to the date upon which
Sublessee wishes to begin such work and Sublessor and Landlord shall have ten
(10) days after receipt of same to approve or reject such alterations or
additions, such approval shall not be unreasonably withheld. In addition,
Sublessee shall not be required to obtain Sublessor's consent to any
nonstructural alteration costing less than $10,000.00. Any alterations,
improvements or additions made or paid for by Sublessee which are not
permanently attached to the building shall remain the property of Sublessee and
Sublessee may remove such alterations, improvements or additions at any time
during the Term hereof, provided Sublessee repairs any damage caused by such
removal. Sublessee agrees that it will not proceed to make such alterations or
additions until three (3) days from the receipt of such consent, in order that
Landlord and Sublessor may post appropriate notices to avoid any liability to
contractors or material suppliers for payment for Sublessee's improvements.
Sublessee will at all times permit such notices to be posted and to remain
posted until the completion of work.
10. DAMAGE AND DESTRUCTION.
a. TERMINATION OF MASTER LEASE. If the Sublet Space is damaged
or destroyed and Landlord exercises any option it may have to terminate the
Master Lease, if any, this Sublease shall terminate as of the date of the
termination of the Master Lease. If Sublessor has the option to terminate the
Master Lease and the relevant event of damage or destruction occurs after the
Phase II Commencement Date, Sublessor shall promptly give Sublessee notice of
such option and shall exercise such option if so directed by Sublessee subject
to the relevant provisions of the Master Lease.
b. CONTINUATION OF SUBLEASE. If the Master Lease is not
terminated following any damage or destruction as provided above, this Sublease
shall remain in full force and effect and Sublessee shall be entitled to any
reduction or abatement of Base Rent in an amount in proportion to the
corresponding reduction in base rent for the Sublet Space which Sublessor
receives under the Master Lease. Sublessor shall diligently enforce any
obligation of Landlord to rebuild the Sublet Space in accordance with the Master
Lease; and (ii) Sublessor shall make available to Sublessee any insurance
proceeds Sublessor receives as a result of such damage or destruction.
11. EMINENT DOMAIN.
a. TOTAL CONDEMNATION. If all of the Premises is condemned by
eminent domain, inversely condemned or sold in lieu of condemnation, for any
public or a quasi-public use or purpose ("Condemned" or "Condemnation"), this
Sublease shall terminate as of the date of title vesting in such proceeding, and
Base Rent shall be adjusted to the date of termination.
b. PARTIAL CONDEMNATION. If any portion of the Premises is
Condemned, and Landlord exercises any option to terminate the Master Lease, this
Sublease shall automatically terminate as of the date of the termination of the
Master Lease. If Sublessor has the option to terminate the Master Lease,
Sublessor shall promptly give Sublessee notice of such option and shall exercise
such option if so directed by Sublessee subject to the relevant provisions of
the Master Lease and further provided that such partial condemnation renders the
Premises unusable for Sublessee's business, as reasonably determined by
Sublessor. If this Sublease is not terminated following any such Condemnation,
this Sublease shall remain in full force and effect. Sublessor shall diligently
enforce any rights under the Master Lease to require Lessor to rebuild the
Premises. Base Rent shall be equitably adjusted to take into account
interference with Sublessee's ability to conduct its operations on the
Premises as a result of the Premises being Condemned. Sublessee hereby
waives the provisions of California Code of Civil Procedure Section 1265.130
permitting a court of law to terminate this Sublease.
c. SUBLESSEE'S AWARD. Subject to the provisions of the Master
Lease, Sublessee shall have the right to recover from the condemning authority,
but not from Sublessor, such compensation as may be separately awarded to
Sublessee in connection with costs and removing Sublessee's merchandise,
furniture, fixtures, leasehold improvements and equipment to a new location.
12. INSURANCE. All insurance policies required to be carried by
Sublessee, pursuant to the Master Lease, shall contain a provision whereby
Sublessor and Landlord are each named as additional insureds under such
policies.
13. BROKERAGE COMMISSION. Sublessor shall pay a brokerage commission
to Sublessor's Broker for Sublessee's subletting of the Sublet Space as provided
for in a separate agreement between Sublessor and Sublessor's Broker. Sublessee
warrants for the benefit of Sublessor that its sole contact with Sublessor or
the Sublet Space in connection with this transaction has been directly with
Sublessor, Sublessor's Broker and Sublessee's Broker. Sublessee further
warrants for the benefit of Sublessor that no broker or finder other than
Sublessee's Broker can properly claim a right to a commission or a finder's fee
based upon contacts between the claimant and Sublessee with respect to the other
party or the Sublet Space. Sublessee and Sublessor shall each indemnify, defend
by counsel acceptable to the other party and hold the other party harmless from
and against any loss, cost or expense, including, but not limited to, attorneys'
fees and court costs, resulting from any claim for a fee or commission by any
broker or finder, other than any claims by such party's broker in connection
with the Sublet Space and this Sublease. Sublessor shall pay a commission to
Sublessee's Broker in the amount of $261,500, one half of which shall be due and
payable upon execution of this Sublease, and the second half of which shall be
due and payable upon occupancy by Sublessee of the Phase I portion of the Sublet
Space.
14. SUBLESSEE'S INDEMNITY.
a. Except to the extent caused by the gross negligence of
Sublessor, or its agents, contractors or employees, Sublessee shall defend,
indemnify and hold harmless Sublessor, its partners, employees, and agents, and
Landlord, from and against any and all claims, liabilities, suits, judgments,
awards, damages, losses, fines, penalties, costs and expenses, including
reasonable attorney's fees, that Sublessor, its partners, employees and agents,
and Landlord may suffer, incur or be liable for by reason of or arising out of
or related to the breach by Sublessee of any of the duties, obligations,
liabilities or
covenants applicable to Sublessee hereunder, Sublessee's occupancy or use of the
Sublet Space, any alterations, additions or modifications made to the Premises
by Sublessee or Sublessee's negligence or willful misconduct. This
indemnification shall survive termination of this Sublease.
b. Sublessor shall indemnify, defend and hold harmless
Sublessee, its partners, employees, and agents from and against all claims,
liabilities, suits, judgments, awards, damages, losses, fines, penalties, costs
and expenses, including reasonable attorney's fees, that Sublessee, its
partners, employees and agents, and Landlord may suffer, incur or be liable for
by reason of or arising out of or related to the gross negligence or willful
misconduct of Sublessor or Sublessor's agents, contractors or employees on the
Sublet Space.
15. RIGHT TO CURE SUBLESSEE'S DEFAULTS. Sublessee shall at any time
fail to make any payment or perform any other obligation of Sublessee hereunder,
then Sublessor shall have the right, but not the obligation, after the lesser of
five (5) days' notice to Sublessee or the time within which Landlord may act on
Sublessor's behalf under the Master Lease, or without notice to Sublessee in the
case of any emergency, and without waiving or releasing Sublessee from any
obligations of Sublessee hereunder, to make such payment or perform such other
obligation of Sublessee in such manner and to such extent as Sublessor shall
deem necessary, and in exercising any such right, to pay any incidental costs
and expenses, employ attorneys and other professionals, and incur and pay
attorneys' fees and other costs reasonably required in connection therewith.
Sublessee shall pay to Sublessor upon demand all sums so paid by Sublessor and
all incidental costs and expenses of Sublessor in connection therewith, together
with interest thereon at the Interest Rate.
16. SUBLESSEE IMPROVEMENTS. Sublessee hereby agrees to build certain
improvements to the Sublet Space in accordance with the terms of the Work Letter
attached hereto as EXHIBIT E.
17. MISCELLANEOUS.
a. ENTIRE AGREEMENT. This Sublease contains all of the
covenants, conditions and agreements between the parties concerning the Sublet
Space, and shall supersede all prior correspondence, agreements and
understandings concerning the Sublet Space, both oral and written. No addition
or modification of any term or provision of this Sublease shall be effective
unless set forth in writing and signed by both Sublessor and Sublessee.
b. CAPTIONS. All captions and headings in this Sublease are
for the purposes of reference and convenience and shall not limit or expand the
provisions of this Sublease.
c. LANDLORD'S CONSENT. This Sublease is conditioned upon
Landlord's written approval of this Sublease within forty-five (45) days after
the Document Date. If Landlord refuses to consent to this Sublease, or if the
forty-five (45) day consent period expires, this Sublease shall terminate and
neither party shall have any continuing obligation to the other with respect to
the Sublet Space; provided Sublessor shall return the Deposit, if previously
delivered to Sublessor, to Sublessee.
d. AUTHORITY. Each person executing this Sublease on behalf of
a party hereto represents and warrants that he or she is authorized and
empowered to do so and to thereby bind the party on whose behalf he or she is
signing.
e. ATTORNEYS' FEES. In the event either party shall bring any
action or proceeding for damages or for an alleged breach of any provision of
this Sublease to recover rents, or to enforce, protect or establish any right or
remedy hereunder, the prevailing party shall be entitled to recover reasonable
attorneys' fees and court costs as part of such action or proceeding.
f. HOLDOVER. This Sublease shall terminate without further
notice at the expiration of the Sublease Term. If Sublessee holds over at the
Sublet Space or any part thereof after the expiration or earlier termination of
the Term, such holding over shall constitute a month-to-month tenancy, at a rent
equal to two hundred percent (200%) of the base rent due under the Master Lease.
Nothing in the foregoing sentence shall be deemed Sublessor's permission for
Sublessee to hold over, and acceptance of Base Rent by Sublessor following
expiration of termination of the Sublease shall not constitute a renewal of this
Sublease. In addition to the foregoing, Sublessee shall indemnify, defend by
counsel satisfactory to Sublessor, protect and hold Sublessor harmless from any
and all liabilities, claims, causes of action, damages, costs or expenses
(including reasonable attorney's fees) directly or indirectly resulting from
Sublessee's holding over at the Sublet Space beyond the expiration or
termination of the Term.
g. ACCESS. Sublessor reserves the right to enter the Sublet
Space upon reasonable notice to Sublessee (except that in case of emergency no
notice shall be necessary) in order to gain access to the security closet
located on the second floor of the building.
h. TIME. Time is of the essence of every provision of this
Sublease.
i. CONFIDENTIALITY. Sublessor, Sublessee and Landlord shall
each keep all information related to this Sublease confidential. Sublessor,
Sublessee and Landlord shall not disclose any such information to any
other person or entity, without obtaining the prior written consent of each of
the other parties.
j. EXTERIOR SIGNAGE. Upon the Phase I Commencement Date and
subject to any requirement for Landlord's prior approval pursuant to the Master
Lease, Sublessee shall have the right to use Sublessor's exterior signage during
the Term of this Sublease.
IN WITNESS WHEREOF, the parties hereto have executed one (1) or more
copies of this Sublease, dated as of the Document Date.
"SUBLESSOR"
XXXXXX CORPORATION, a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
Its: Vice President, Corporate Facilities
"SUBLESSEE"
YAHOO!, a California corporation
By: /s/ Xxxx Xxxxxxxxxx
-----------------------------------------
Its: Sr. VP, CFO
By:
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Its:
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