EXHIBIT 10.12
SUBLEASE AGREEMENT
XXXXX 0,000 XXXX XXXXX XXXXXX, XXXXXXXXX, XXXXXXXXXX
This Sublease Agreement (the "Sublease"), which is dated for reference
purposes only on March 15 1999 (the "Effective Date") is entered, by and between
PROLIFIX MEDICAL, INC., a Delaware corporation ("Sublandlord") and FOUNDRY
NETWORKS, a Delaware corporation ("Subtenant"). Sublandlord agrees to sublease
to Subtenant, and Subtenant agrees to sublease from Xxxxxxxxxxx, Xxxxx 0 within
the premises situated in the City of Sunnyvale, County of Santa Xxxxx, State of
California consisting of approximately nine thousand five hundred two (9,502)
usable square feet of space on the first floor at 000 Xxxx Xxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxx 00000 (the "Subleased Premises").
ARTICLE 1
MASTER LEASE AND OTHER AGREEMENTS
Section 1.1 Applicable Provisions. Except as specifically set forth
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herein, this Sublease is subject to and subordinate to all of the terms and
conditions of that certain STANDARD NNN LEASE - Multi-Tenant Property, dated
July 8, 1998 by and between LIMAR REALTY CORP. #27, a California corporation
("Master Landlord") and Sublandlord as Tenant, (the "Master Lease"). Subtenant
shall not commit or permit to be committed anything to be done which would cause
the Master Lease to be terminated or forfeited by reason of any fight of
termination or forfeiture reserved or vested in Master Landlord under the Master
Lease. In the event of the termination of Sublandlord's interest as Tenant under
the Master Lease for any reason other than for Sublandlord's breach, this
Sublease shall terminate automatically upon such termination without any
liability of Master Landlord or Sublandlord to Subtenant.
Section 1.2 Applicable Provisions. All of the terms and provisions
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contained in the Master Lease as they pertain to the Subleased Premises
(identified as the "Expansion Premises" in the Master Lease) except for Sections
1.a., 1.b., 1.c., 1.e.(1), 1.g., 1.h., 1.i.(1), 1.j.(1), 1.k., 1.1., 1.m., 1.n.,
1.o., 1.p., 1.q., 2.a., 3, 4.a., 4.b., 4.d., 6, 13.a., 17.a., 17.e., 29, 30, 31,
32, 33.d., and those terms and provisions directly contradicted by the terms and
conditions contained in this document are hereby incorporated herein by this
reference, and shall be terms and conditions of this Sublease (with each
reference therein to "Landlord," "Tenant," and "Lease" to be deemed to refer to
Sublandlord, Subtenant, and Sublease, respectively) and, along with all of the
following terms and conditions set forth in this document, shall constitute the
complete terms and conditions of this Sublease.
Section 1.3 No Default of Master Lease. Sublandlord represents and
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warrants to Subtenant, as follows' (i) Sublandlord is not in default of any of
its obligations under the Master Lease, and Sublandlord knows of no event or
present condition, which, with the passing of time or otherwise, could give rise
to an event of default under the Master Lease on the part of Sublandlord; (ii)
Sublandlord is not in default of any of its obligations under the
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Master Lease and Master Landlord knows of no event or present condition, which,
with the passing of time or otherwise, could give rise to an event of default
under the Master Lease on the part of Master Landlord; and (iii) Sublandlord has
not previously assigned any interest in the Master Lease or in the Subleased
Premises to any party, and that by this Sublease, Sublandlord is giving to
Subtenant quiet use and quiet possession of the Subleased Premises.
ARTICLE 2
TERM
Section 2.1 Initial Term of the Sublease. The initial term of this
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Sublease shall be for a period of nine (9) months commencing on June 1, 1999
(the "Commencement Date") and expiring on February 29, 2000 (the "Expiration
Date"), unless sooner terminated pursuant to either: (i) any provision
hereunder, or (ii) the expiration or earlier termination of the Master Lease.
Section 2.2 Subtenant's Option to Extend Term of the Sublease. If
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Subtenant has not been in default of any of its obligations under this Sublease,
and this Sublease has not been terminated, Subtenant shall have one (1) option
to extend the term of this Sublease for an additional period of three (3) months
by giving Sublandlord written notice of its intent to exercise such option to
extend (the "Extension Option Notice") at a time no later than sixty (60) days
prior to the Expiration Date. Upon exercise of the option, the term of this
Sublease shall be extended for an additional period of three (3) months from the
Expiration Date (the "Option Period") until May 31, 2000 (the "Extended
Expiration Date"), upon the same terms and conditions as set forth in this
Sublease, except that the option to extend granted in this section shall be
eliminated. Following the timely and proper exercise of the option to extend
granted to Subtenant herein, all references in this Sublease to the Expiration
Date shall be construed to mean and refer to the Extended Expiration Date, as
defined herein.
ARTICLE 3
RENT
Section 3.1 Rent. During the term of this Sublease, Subtenant shall pay to
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Sublandlord basic rent and additional rent for the use and occupancy of the
Subleased Premises, determined and adjusted in accordance with the provisions of
this Sublease, payable monthly in lawful money of the United States, without any
abatement, deduction or offset whatsoever, and without any prior demand
therefor. Payment for the basic rent due for the first full calendar month of
the term of this Sublease shall be due and payable upon execution of this
Sublease by Subtenant; thereafter, all rents shall be due and payable in advance
on the first day of each and every calendar month during the term of this
Sublease. Notwithstanding the foregoing, Subtenant acknowledges the fight of
Master Landlord to collect the rents directly from Subtenant in the event of a
default by Sublandlord under the Master Lease. Subtenant, upon receipt of
written notice from Master Landlord of the occurrence of such an event of
default under the Master Lease, shall make all rent payments to Master Landlord.
If Subtenant's obligation to pay rent should commence upon a day other
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than the first day of a calendar month or terminate on a day other than the last
day of a calendar month, rents for such partial month(s) shall be prorated on
the basis of a thirty (30) day month. If, after Subtenant shall have prepaid its
first month's rent in full as required herein, the term of this Sublease should
commence on a day other than the first day of a calendar month, Subtenant shall
receive a rent credit against the rent due and payable on the first day of the
second calendar month of the term of this Sublease in an amount equal to the
unused portion of such prepaid rent.
Section 3.2 Basic Rent and Additional Rent. Each month during the term of
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this Sublease Subtenant shall pay to Sublandlord basic rent (the "Basic Rent")
in the amount of eighteen thousand fifty-three dollars and eighty cents
($18,053.80), together with Subtenant's share of "Operating Expenses" (as
defined in Section 5 of the Master Lease) and all other costs and expenses
otherwise payable by Sublandlord under the Master Lease (collectively referred
to herein as "Additional Rent"). Sublandlord shall have the same remedies with
respect to non-payment of Additional Rent as Sublandlord possesses with respect
to non-payment of Basic Rent. (Basic Rent and Additional Rent are sometimes
collectively referred to herein as "Rent" and/or "Rents".)
ARTICLE 4
CONDITION OF THE PREMISES
Section 4.1 Subleased Premises "As-Is". Sublandlord shall deliver the
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Subleased Premises to Subtenant in "as-is" condition, with all faults, and,
except as set forth in Section 4.2 below, Sublandlord makes no warranties of any
nature with respect to the condition or prospective use of the Subleased
Premises. Subtenant accepts the Subleased Premises in its condition existing as
of the Commencement Date subject to all applicable zoning, municipal, county,
and state laws, and ordinances regarding the use of the Subleased Premises.
Subtenant acknowledges that' (i) neither Sublandlord nor Master Landlord have
made any representations or warranties as to the condition of the Subleased
Premises or its suitability for Subtenant's purposes; and (ii) any alterations
or improvements to the Subleased Premises (Section 7.3 of this Sublease) shall
be at Subtenant's sole cost and expense, and Subtenant has no right, claim, or
interest, in or to Landlord's Construction Allowance (as defined in Section
29.A. of the Master Lease), or any portion thereof.
Section 4.2 Hazardous Materials. Sublandlord represents and warrants to
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Subtenant that, to the best of Sublandlord's knowledge, on the date of execution
of this Sublease by Sublandlord, the Subleased Premises are free from any
"Hazardous Materials" (as defined in Section 8.f. of the Master Lease) or spills
requiring notification or reporting to any governmental regulatory agency. As
used herein, the phrase "to the best of Sublandlord's knowledge" shall mean the
actual knowledge of the individuals executing this Sublease on behalf of
Sublandlord at the time of such execution, and shall impose no duty upon such
persons to inquire or investigate.
Section 4.3 Indemnity. Sublandlord and Subtenant (each an "indemnifying
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party") shall each indemnify, defend and hold the other harmless from any and
all actions, claims,
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damages, expenses, liabilities or losses, including, without limitation,
attorneys' fees and costs of suit, arising from the presence of Hazardous
Materials in, on, or about the Subleased Premises as the result of any action
(whether or not otherwise permitted under this Sublease) or wrongful failure to
act on the part of such indemnifying party, or the, agents, employees,
contractors, or invitees of such indemnifying party. The respective fights and
obligations of Sublandlord and Subtenant under this section shall survive the
expiration or earlier termination of this Sublease.
ARTICLE 5
SECURITY DEPOSIT
Concurrently with the execution of this Sublease, Subtenant shall deposit
with Sublandlord the amount of eighteen thousand fifty-three dollars and eighty
cents ($18,053.80) as a security deposit to be held by Sublandlord as security
for the faithful performance by Subtenant of all the terms and conditions of the
Sublease and for those purposes as set forth in, the Security Deposit section of
the Master Lease. If Subtenant fully and faithfully performs all of its
obligations hereunder, then the security deposit shall be returned to Subtenant
(without payment of interest on earnings or earnings thereon) within thirty (30)
days after the expiration or earlier termination of this Sublease.
ARTICLE 6
INSURANCE
Subtenant shall secure and maintain at Subtenant's expense commercial
general liability insurance and personal property damage insurance in the
amounts and pursuant to applicable terms for such insurance in the Master Lease.
Such insurance shall name Sublandlord and Master Landlord as additional
insureds.
ARTICLE 7
USE OF PREMISES; PARKING; IMPROVEMENTS
Section 7.1 Use of Subleased Premises. Subtenant shall use and occupy the
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Subleased Premises for the purpose of office, research, and development, sales,
light assembly and other related legal uses consistent with the terms of the
Master Lease.
Section 7.2 Parking. Subtenant shall have the right to use the parking
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allocated to the Subleased Premises under the Master Lease.
Section 7.3 Alterations and Improvements. Subtenant shall not make any
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alterations, improvements, or modifications to the Subleased Premises without
the express prior written consent of both Sublandlord and Master Landlord, which
consent may be withheld in the sole and absolute determination of Master
Landlord, but shall not be unreasonably withheld by Sublandlord. On termination
of the Sublease, Subtenant shall
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remove any and all such improvements made by Subtenant as directed by
Sublandlord and/or Master Landlord, but shall not be responsible for removal of
any improvements or alterations made by Sublandlord. Subtenant acknowledges that
all such improvements approved by Master Landlord and Sublandlord shall be at
the sole and absolute cost of Subtenant, and that, notwithstanding any provision
of the Master Lease to the contrary, there is no improvement allowance of any
nature available to Subtenant from either Master Landlord or Sublandlord.
Section 7.4 Signage. Subtenant shall have the fight to use the signage
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allocated to the Subleased Premises under the Master Lease.
ARTICLE 8
NOTICE
Any notice, demand, request, consent, approval, submittal or communication
that either party desires or is required to give to the other party shall be
addressed at the addresses set forth below. Either party may change its address
or its copy address by notifying the other party of the change of address.
Sublandlord Subtenant
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Prolifix Medical, Inc. Foundry Networks
000 Xxxx Xxxxx Xxxxxx 000 Xxxx Xxxxx Xxxxxx
Xxxxx 0 Xxxxx 0
Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
ARTICLE 9
MISCELLANEOUS
Section 9.1 Entire Agreement. This Sublease constitutes the entire
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agreement between the parties with respect to the matters described or referred
to herein, and Sublandlord has made no representations or warranties to
Subtenant except as expressly set forth herein. This Sublease may only be
amended in writing signed by both parties hereto.
Section 9.2 Counterparts. This Sublease may be executed in two or more
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identical counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
Section 9.3 Attorneys' Fees. In the event of any suit, action, or
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proceeding brought by either party for the breach of any term hereof, or to
enforce any provisions hereof, the prevailing party shall be entitled to
reasonable attorneys' fees in addition to court costs and other expenses of
litigation in said action or proceeding. For the purpose of this section,
"prevailing party" includes without limitation a party who agrees to dismiss an
action or
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proceeding upon the other's payment of the sums allegedly due or performance of
the covenants allegedly breached, or who obtains substantially the relief
sought.
Section 9.4 Brokers. Sublandlord and Subtenant represent and warrant to
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each other that each has not dealt with any broker, agent, finder, or other such
person with respect to this sublease and each agrees to indemnify and hold the
other harmless from any claim asserted against the other by any broker, agent,
finder, or other such person.
ARTICLE 10
CONSENT TO SUBLEASE
This Sublease shall not be effective unless and until Master Landlord
consents to this Sublease in accordance with the terms of the Master Lease.
IN WITNESS WHEREOF, Sublandlord and Subtenant have executed and delivered
this Sublease on the date first set forth above.
SUBLANDLORD. SUBTENANT:
PROLIFIX MEDICAL, INC. FOUNDRY NETWORKS,
a Delaware corporation a Delaware corporation
/s/ Xxxx X Xxxxxxxxx /s/ Xxxxxxx X Xxxxxxx
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By: Xxxx X Xxxxxxxxx By: Xxxxxxx X Xxxxxxx
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Its:Pres/CEO Its: CHIEF FINANCIAL OFFICER
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________________________ ____________________________
By:_____________________ By:_________________________
Its:____________________ Its:________________________
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