Exhibit 10.6
FORM OF ASSIGNMENT AND ASSUMPTION OF INDUSTRIAL LEASE AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION OF INDUSTRIAL LEASE AGREEMENT ("ASSIGNMENT")
shall be effective as of _________ ____, 1999 (the "Effective Date") and is made
by and between TIBCO FINANCE TECHNOLOGY, INC., a Delaware corporation,
("Assignor") and TIBCO SOFTWARE, INC., a Delaware corporation, ("Assignee").
RECITALS
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This Assignment is made with reference to the following facts and with the
following intentions:
A. The Board of Trustees of the Xxxxxx Xxxxxxxx Junior University, a
California corporation ("Stanford"), is the owner of that certain improved real
property, consisting of approximately 5.884 acres of land and currently known as
0000 Xxxxxx Xxxxx, Xxxx Xxxx, Xxxxxxxxxx ("Premises"). The Premises are subject
to that certain Ground Lease, dated as of June 1, 1962, ("Ground Lease") between
Stanford, as ground lessor, and Utah Construction & Mining Company, a Delaware
corporation ("Utah"), as ground lessee, as more particularly described therein.
B. On January 24, 1964, Utah assigned the Ground Lease to Xxxxxxxx,
Weidenmuller Co, a California corporation ("Xxxxxxxx"), which assignment was
recorded on February 10, 1964 in Book 6380 at page 224, Official Records of
Santa Xxxxx County. Pursuant to that certain Assignment of Lease, dated as of
October 26, 1966, Xxxxxxxx assigned all of its right, title and interest as
ground lessee under the Ground Lease to Teledyne, Inc., a Delaware corporation
("Teledyne").
C. Teledyne, as sublessor, and Xxxxxx Drive Associates, LLC, a
California limited liability company ("Landlord"), as sublessee, entered into a
sublease of the Premises pursuant to that certain Sublease Agreement ("Master
Lease"), dated as of November 30, 1994.
D. Landlord, as landlord, and Teknekron Software Systems (Delaware),
Inc., a Delaware corporation, ("Teknekron"), as tenant, entered into a sub-
sublease of the Premises, pursuant to that certain Industrial Lease Agreement,
dated as of December 14, 1995 (the "Lease"), a copy of which is attached hereto
as Exhibit A. The Premises consist of approximately 5.884 acres of land and all
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of the improvements thereon, including, without limitation, an approximately
91,644 rentable square foot building the address of which is 0000 Xxxxxx Xxxxx,
Xxxx Xxxx, Xxxxxxxxxx and an approximately 1,138 square foot freestanding
storage structure.
E. Following the execution date of the Lease, Teknekron subsequently
changed its name to Tibco Inc., and then to Tibco Finance Technology, Inc.
F. Subject to the limitations contained in this Assignment, Assignor
wishes to assign all of its right, title and interest under the Lease to
Assignee, and Assignee wishes to assume, all of Assignor's rights and
obligations which accrue on or after the Effective Date.
NOW THEREFORE, for good and valuable consideration, receipt and sufficiency
of which are hereby acknowledged, the parties hereby agrees as follows:
1. Assignment: Assignor hereby grants to Assignee, as of the Effective
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Date, all of Assignor's right, title and interest in the Lease and the Premises.
2. Acceptance and Assumption: Assignee hereby accepts the foregoing
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assignment of the Lease and Assignor's rights thereunder and, subject to the
terms of this Agreement, Assignee hereby expressly assumes and agrees to perform
and fulfill all of the terms and obligations to be performed by the "Tenant"
under the Lease which accrue on and after the Effective Date.
3. Security Deposit: Assignor hereby represents and warrants to Assignee
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that Landlord holds the sum of $120,793.34 as a security deposit to be applied
in accordance with the terms of the Lease. Assignor hereby assigns its rights
to that sum to Assignee, and the sum shall be held by Landlord for the benefit
of Assignee, subject to the provisions of the Lease. Concurrently, with the
execution of this Assignment, Assignee shall deliver the cash sum of $120,793.34
to Assignor as payment for Assignor's interest in the security deposit held by
the Landlord under the Lease.
4. Assignor's Representations and Warranties: Assignor hereby represents
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and warrants to Assignee that: (i) the Lease is in full force and effect and
there is no default or event of default under the Lease by either Assignor or,
to Assignor's actual knowledge, Landlord, nor has there occurred any event
which, with the giving of notice or passage of time or both, could constitute
such a default or event of default; (ii) the Lease attached hereto as Exhibit A
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(a) is a true, correct and complete copy of the Lease, (b) has not been amended
or modified, and (c) represents the entire agreement between Assignor and
Landlord with respect thereto; (iii) there are no pending or threatened actions,
suits or proceedings before any court or administrative agency against Assignor
or to Assignor's actual knowledge, against Landlord or the Premises, which
could, in the aggregate, adversely affect the Lease or the Premises, or any part
thereof'; (iv) Assignor has not assigned, encumbered or otherwise transferred
any interest of Assignor under the Lease; and (v) to the Assignor's actual
knowledge, the Ground Lease and the Master Lease are in full force and effect.
5. Assignor's Indemnity: Assignor shall indemnify, defend and hold
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Assignee harmless from any and all claims, losses, damages, liabilities, costs
or expenses (including reasonable attorney's fees and costs) (a) arising under
the Lease prior to the Effective Date, (b) arising at any time as a result of
any occurrence in, on, under or about the Premises prior to the Effective Date,
or (c) as a consequence of Assignor's breach of the obligations on its part to
be performed under the terms of the Lease prior to the Effective Date. The
provisions of this paragraph shall survive the expiration or termination of the
Lease and this Assignment.
6. Assignee's Indemnity: Subject to Section 5 of this Assignment,
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Assignee shall indemnify, defend and hold Assignor harmless from any and all
claims, losses, damages, liabilities, costs or expenses (including reasonable
attorney's fees and costs) (a) arising under the Lease on or
after the Effective Date or (b) as a consequence of Assignee's breach of the
obligations assumed by Assignee with respect to the Lease. The provisions of
this paragraph shall survive the expiration or termination of the Lease and this
Assignment.
7. Miscellaneous:
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A. Entire Agreement: This Assignment contains the entire
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understanding between the parties with respect to the matters contained herein.
No subsequent change or addition to this Assignment shall be binding unless in
writing and signed by Assignor and Assignee.
B. Successors: This Assignment shall be binding upon and inure to
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the benefit of the parties hereto and their respective successors and assigns.
C. Attorneys' Fees: If either party brings any action or legal
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proceeding with respect to this Assignment, the prevailing party in such action
shall be entitled to recover its reasonable attorneys' fees and costs.
D. Severability: If any one or more of the provisions contained in
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this Assignment shall be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby.
E. Captions: Captions are inserted for convenience only and will
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not affect the construction hereof.
F. Notices: Unless five (5) days prior written notice is given in
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the manner set forth in this paragraph, the address of Assignor and Assignee for
all purposes connected with this Assignment shall be the address set forth below
their signatures at the end of this Assignment. All notices, demands, or
communications in connection with this Assignment shall be considered received
when (i) personally delivered or (ii) if properly addressed and deposited in the
United States mail (registered or certified, return receipt requested), on the
date shown on the return receipt for acceptance or rejection.
IN WITNESS WHEREOF, the parties hereto have executed this Assignment
intending it to be effective as of the Effective Date.
"ASSIGNOR" "ASSIGNEE"
TIBCO FINANCE TECHNOLOGY, INC., TIBCO SOFTWARE INC.,
a Delaware corporation a Delaware corporation
By:___________________________ By:___________________________
Its:__________________________ Its:___________________________
Date:__________________________ Date:__________________________
Address:______________________ Address: 0000 Xxxxxx Xxxxx
______________________ Xxxx Xxxx, Xxxxxxxxxx 00000
______________________ Attn: Chief Financial Officer
