EXHIBIT 10.7.2
SUBLEASE
Sublandlord: Xxxxx Corporation Subject Property: 000 Xxxxx
Xx. Xxxxxxxx Xxxx, XX
Subtenant: Netscape Communications, Inc. Date: October ____, 1996
1. Parties:
This Sublease is made and entered into as of October ___, 1996, by and between
Xxxxx Corporation ("Sublandlord"), and Netscape Communications, Inc.
("Subtenant"), under the Lease (the "Master Lease") dated August 10, 1993,
between Renault & Xxxxxxx Solar Xxxxx Joint Venture, as lessor (the "Master
Landlord") and Sublandlord under this Sublease, as lessee. A copy of the Master
Lease is attached hereto as Attachment I and incorporated herein by this
reference.
2. Subleased Premises and Rent:
2.1 Subleased Premises:
Sublandlord leases to Subtenant and Subtenant leases from Sublandlord the
premises outlined on Attachment H attached hereto and incorporated herein
by this reference (the "Subleased Premises") upon all of the terms,
covenants and conditions contained in this Sublease, together with the
exclusive use of four (4) vehicle parking spaces per 1000 feet of leased
space as further provided herein. The Subleased Premises consist of
approximately 15,350 square feet, which is a portion of the building
located at 000 Xxxxx Xxxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx.
2.2 Rent:
Subtenant shall pay to Sublandlord as rent ("Rent") for the Subleased
Premises according to the following schedule:
FULL SERVICE RENT MONTHLY RENT
----------------- ------------
11/01/96 - 11/30/96 $1.20/Square Foot/Month ($18,420.00)
12/01/96 - 11/30/97 $1.25/Square Foot/Month ($19,187.50) + 1635.11
12/01/97 - 11/30/98 $1.35/Square Foot/Month ($20,722.50) + 1635.11
The parties hereto agree that the above-referenced Rent paid by Subtenant
includes Subtenant's share of all operating expenses including but not
limited to the following: real property taxes and assessments, building
insurance ("all risk" fire and property damage coverage), trash removal,
all interior and exterior repair and maintenance costs (including
janitorial), all utility costs, and any other reasonable costs necessary
for the operation and/or maintenance of the Subleased Premises. A schedule
of the specific maintenance and janitorial services included as part of the
operating expenses hereunder will be provided to Subtenant by Sublandlord
upon request.
Rent shall be payable by Subtenant to Sublandlord in consecutive monthly
installments on or before the first day of each calendar month during the
Sublease Term (as hereinafter defined) at the address provided below for
Sublandlord. If the Sublease commencement date or the termination date of
the Sublease occurs on a date other than the first day or the last day,
respectively, of a calendar month, then the Rent for such partial month
shall be prorated and the prorated Rent shall be payable on the Sublease
commencement date or on the first day of the calendar month in which the
Sublease termination date occurs, respectively.
2.3 Security Deposit:
In addition to the Rent specified above, Subtenant shall pay to Sublandlord
an equivalent of one month's rent ($18,420.00) as a non-interest bearing
Security Deposit. In the event Subtenant has performed all of the terms and
conditions of this Sublease during the term hereof, Sublandlord shall
return to Subtenant, within ten days after Subtenant has vacated the
Subleased Premises, the Security Deposit, less any sums due and owing to
Sublandlord.
3. Sublease Term:
3.1 Sublease Term:
The Sublease Term shall be for the period commencing on November 1, 1996,
and continuing through November 30, 1998. In no event shall the Sublease
Term extend beyond the term of the Master Lease.
3.2 Inability to Deliver Possession:
In the event Sublandlord is unable to deliver possession of the Subleased
Premises at the commencement of the Sublease Term, Sublandlord shall not be
liable for any damage caused thereby, nor shall this Sublease be void or
voidable but Subtenant shall not be liable for Rent until such time as
Sublandlord offers to deliver possession of the Subleased Premises to
Subtenant; nor shall the term hereof be extended by such delay.
Notwithstanding the foregoing, in the event that Sublandlord fails to
deliver the Subleased Premises to Subtenant on or before December 1, 1996,
Subtenant shall have the right to terminate this Sublease and both parties
hereto shall be released from their obligations hereunder, except that
Sublandlord shall be required to return the Security Deposit and any other
funds deposited by Subtenant, to Subtenant.
3.3 Early Occupancy:
Notwithstanding the foregoing, upon execution of this Sublease and consent
hereto by the Master Landlord, Subtenant shall have the right to enter the
Subleased Premises on any date prior to November 1, 1996 (the "Early
Occupancy Date") to take reasonable preparatory measures for its occupancy
of the Subleased Premises, including, without limitation, the installation
of its security systems, trade fixtures, furnishings, and telephone and
computer equipment. Any such installations, refurbishments and other
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alterations shall comply with all requirements of the Master Lease. In
addition, any such early entry shall be subject to all of the terms and
conditions of this Sublease, except that Subtenant shall not be required to
pay any Rent on account thereof; provided, however, that if Subtenant shall
at any time during such early occupancy take full beneficial occupancy of
the Subleased Premises and conduct its business from the Subleased
Premises, Subtenant shall pay Rent for the period ending with the
commencement of the-term at the same rental as that prescribed for the
first month of the term prorated at the rate of 1/30th thereof per day.
3.4 Right of First Refusal:
Subtenant acknowledges that Sublandlord has an option to renew the Master
Lease. In the event that Sublandlord intends to exercise said option,
Sublandlord shall give Subtenant the opportunity to sublease those portions
of the Subleased Premises then occupied by Subtenant, as designated by
Sublandlord and upon mutually agreeable terms and conditions. Sublandlord
shall give Subtenant written notice of this opportunity no later than
ninety (90) days prior to the expiration of the Sublease Term, and
Subtenant shall have twenty (20) days thereafter to notify Sublandlord in
writing of its desire to sublease said space.
4. Use:
Subtenant shall use the Subleased Premises only for those purposes
permitted in the Master Lease, unless Sublandlord and Master Landlord
consent in writing to other uses prior to the commencement thereof.
5. Provisions Constituting Sublease:
5.1 This Sublease is subject to all of the terms and conditions of the
Master Lease. Subtenant hereby assumes and agrees to perform all of the
obligations of "Lessee" under the Master Lease to the extent such
obligations apply to the Subleased Premises and Subtenant's use of the
Common Areas, except as specifically set forth herein. Sublandlord hereby
agrees to cause Master Landlord under the Master Lease to perform all of
the obligations of Master Landlord thereunder to the extent said
obligations apply to the Subleased Premises and Subtenant's use of the
Common Areas. Subtenant shall not commit or permit to be committed on the
Subleased Premises, the Common Areas, or on any other portion of the
property any act or omission which violates any term or condition of the
Master Lease. Except to the extent waived or consented to in writing by the
other party or parties hereto who are affected thereby, neither of the
parties hereto will, by renegotiation of the Master Lease, assignment,
subletting, default or any other voluntary action, avoid or seek to avoid
the observance or performance of the terms to be observed or performed
hereunder by such party, but will at all times in good faith assist in
carrying out all the terms of this Sublease and in taking all such action
as may be necessary or appropriate to protect the rights of the other party
or parties hereto who are affected thereby against impairment. Subject to
the foregoing and except as otherwise provided
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herein, nothing in this Sublease shall prevent or prohibit Sublandlord (a)
from exercising its right to terminate the Master Lease pursuant to the
terms thereof or (b) from assigning its interests in this Sublease to any
affiliate of Sublandlord, or from subletting any other portion of the
Premises to any other third party.
5.2 This Sublease shall be subject and subordinate to all of the terms and
provisions of the Master lease, and Master Landlord shall have all rights
in respect of the Master Lease and the Subleased Premises as set forth
therein. Except for payments of rent under Section 4 of the Master Lease
(which payments shall be made by Sublandlord), and, except as otherwise
provided in Section 7 hereof, Subtenant hereby assumes and agrees to
perform for Sublandlord's benefit, during the term of this Sublease, all of
Sublandlord's obligations under the Master lease insofar as they relate to
the Subleased Premises (hereinafter the "Assumed Obligations"), which
accrue during the term of this Sublease.
6. Notices:
All notices, demands, consents and approval which may or are required to be
given by either party to the other hereunder shall be given in the manner
provided herein, at the addresses shown on the signature page hereof.
Sublandlord shall notify Subtenant of any Event of Default under the Master
Lease, or of any other event of which Sublandlord has actual knowledge which
will impair Subtenant's ability to conduct its normal business at the Subleased
Premises within 24 hours following Sublandlord's receipt of notice from the
Master Landlord of an Event of Default or actual knowledge of such impairment.
If Sublandlord elects to terminate the Master Lease, Sublandlord shall so notify
Subtenant by giving at least 30 days notice prior to the effective date of such
termination, during which time Subtenant shall have the right to cure outlined
in Paragraph 9. Should Subtenant fail to exercise said right, then the Master
Lease shall terminate on the effective date of termination stated in the notice.
7. Incorporation of Master Lease:
7.1 Except as otherwise provided in this Sublease, all of the terms and
provisions of the Master Lease are incorporated into and made a part of this
Sublease, and the rights and obligations of the parties under the Master Lease
are hereby imposed upon the parties hereto with respect to the Subleased
Premises. For purposes of this Sublease, with respect to those paragraphs
incorporated from the Master Lease, all references to "Landlord" or "Tenant"
shall-be deemed to be references to "Sublandlord" and "Subtenant", respectively,
and all references to the "Lease" shall be deemed to be references to this
"Sublease".
7.2 Notwithstanding the foregoing:
(a) the following Paragraphs of the Master Lease are not incorporated
herein: 1, 3, 4, 5, 11.4, 17 and 22 (except that Subtenant shall be
responsible for all
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taxes on its personal property and trade or business fixtures); Addendum
One to Lease paragraphs 2 and 12; Agreement re: Lease provisions entitled
"Operating Expenses" and "Lessee Improvement Allowance".
(b) Subtenant shall indemnify, defend, protect, and hold Sublandlord
harmless from and against all actions, claims, demands, costs, liabilities,
losses, reasonable attorneys' fees, damages, penalties, and expenses
(collectively "Claims") which may be brought or made against Sublandlord or
which Sublandlord may pay or incur to the extent caused by a breach of this
Sublease or the Master Lease by Subtenant.
(c) Sublandlord shall indemnify, defend, protect, and hold Subtenant
harmless from and against all actions, claims which may be brought or made
against Subtenant or which Subtenant may pay or incur to the extent caused
by (i) a breach of this Sublease or the Master Lease by Sublandlord, (ii)
the negligence or willful misconduct of Sublandlord or its agents,
officers, directors, invitees or guests or (iii) obligations of Sublandlord
which arise prior to the commencement date of this Sublease.
7.3 For the purposes of incorporating the terms and provisions of the
Master Lease into this Sublease, the Master Lease is hereby amended as follows
(references are to paragraphs of the Master Lease):
Paragraph Comments
7(d) Subtenant's removal and restoration obligations with
respect to alterations, additions, improvements and
installations on the Subleased Premises shall apply
only to such work performed by Subtenant.
9 Sublandlord hereby consents to the improvements,
alterations and changes to be made and installed by
Subtenant (collectively, the "Tenant Improvements")
to the extent such Tenant Improvements are approved
in writing by Master Landlord.
19 In the event of a default by Subtenant under this
Sublease, prior to Sublandlord's exercise of any of
its rights and remedies hereunder, Subtenant shall
have the following periods, following receipt of
written notice from Sublandlord of such default, to
cure such default: in the event of a monetary
default, three business days, and, in the event of a
non-monetary default, thirty calendar days.
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24 Sublandlord shall provide Subtenant with not less
than twenty-four (24) hours' prior notice before any
entry onto the Subleased Premises by Sublandlord or
its agents, employees or contractors for maintenance
or repair, except in the event of an emergency.
Subtenant shall have the right to accompany
Sublandlord during any such entry and shall have the
right to designate certain "secured areas" that
Sublandlord shall not have the right to enter except
in the case of an emergency. Sublandlord shall use
its best efforts not to interfere with the conduct
of Subtenant's business during any such entry.
26 Subtenant may assign or sublet any part or all of
the Subleased Premises or hypothecate or otherwise
encumber its interest under this Sublease, with
Sublandlord's prior written consent, which shall not
be unreasonably withheld or delayed. Sublandlord
shall approve or disapprove Subtenant's request to
assign or sublet within 30 days of its receipt of
such request, and shall have no right to terminate
this Sublease in connection with arty such
disapproval. In addition, Subtenant shall have the
right to assign or sublet any part or all of the
Subleased Premises to an entity directly
controlling, controlled by, or under common control
with, Subtenant, or any entity resulting from a
Consolidation or merger with Subtenant, provided
that, in either case, the lessor under the Master
lease has granted its unconditional consent to such
assignment or sublease in writing.
31 All notices, approvals, consents and other
communications under this Sublease shall be provided
in writing and may be given by personal delivery, a
reputable overnight courier service or prepaid
first-class mail, certified or registered with
return receipt requested. Notices shall be deemed to
have been given and received on the earlier of
actual receipt, refusal to accept delivery and three
(3) business days after the day of deposit into
prepaid registered or certified U.S. mail.
Addendum #5 Notwithstanding any provision of the Master lease or
this Sublease to the contrary, Sublandlord shall
perform all of the maintenance obligations set forth
in Paragraph 10(b) of the Master Lease.
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8. Early Termination of Master Lease. If, without the fault of Sublandlord
hereunder the Master Lease should terminate prior to the expiration of this
Sublease, Sublandlord shall have no liability to Subtenant. To the extent that
the Master Lease grants Sublandlord any discretionary right to terminate the
Master lease, whether due to casualty, condemnation, or otherwise, Sublandlord
may exercise such right without Subtenant's prior written consent; provided,
however, that Sublandlord shall first offer to assign the Master Lease (and all
of Sublandlord's rights, obligations and interests therein) to Subtenant,
together with Sublandlord's pledge to use all commercially reasonable efforts to
obtain the consent of Master Landlord to such assignment. Subtenant shall have
ten (10) days after said offer to agree to accept assignment of the Master Lease
(which, upon the consent of Master Landlord, shall terminate this Sublease).
Furthermore, Sublessor shall not enter into any amendment or modification of the
Master Lease which (a) affects the Subleased Premises or (b) adversely impacts
Subtenant's rights under the Sublease, without the prior written consent of
Subtenant.
9. Subtenant's Right to Cure. In the event that Sublandlord is in default of
the Master Lease, Sublessee shall have the right, but not the obligation, to
cure the default so long as Master Landlord agrees to accept such performance.
Sublandlord agrees to reimburse Subtenant for all costs and expenses reasonably
incurred therefore within ten (10) days following Subtenant's request for
reimbursement.
10. Master Landlord Consent. This Sublease is subject to the consent of the
Master Landlord. Sublandlord agrees to use commercially reasonable efforts to
obtain the consent of Master Landlord to this Sublease as soon as reasonably
possible following execution of this Sublease by Subtenant and Sublandlord, and
shall provide Subtenant with notice of Sublandlord's submittal of this Sublease
to Master Landlord for approval. In the event that Master Landlord's consent is
not obtained within twenty (20) days following the submittal of this Sublease by
Sublandlord to Master Landlord for consent, Subtenant shall have the right to
terminate this Sublease by providing written notice thereof to Sublandlord
within three (3) days after the expiration of such twenty (20) day period. For
purposes of this paragraph, Master Landlord's consent shall be deemed to have
been given as of the date when Master Landlord's unconditional consent to this
Sublease has been obtainable, or, in the event such consent is conditional, the
date upon which such conditions have been fully satisfied or waived by Master
Landlord.
11. Status of Lease
Sublandlord hereby represents and warrants to Subtenant that (i) the Master
Lease attached hereto as Attachment I has been executed and delivered by Master
Landlord and Sublandlord and constitutes the entire agreement of the parties
thereto relating to the lease of the Subleased Premises, (ii) no default or
breach by Sublandlord or, to the best of Sublandlord's knowledge, by Master
Landlord, exists under the Master Lease, (iii) no event has occurred that, with
the passage of time, the giving of notice, or both, would constitute a default
or breach by Sublandlord or, to the best of Sublandlord's knowledge, by Master
Landlord under the Master Lease, and (iv) subject to receipt of Master
Landlord's written consent hereto, Sublandlord has
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the right and power to execute and deliver this Sublease and to perform its
obligations hereunder. Sublandlord shall not modify the Master Lease in such a
manner as to materially increase the obligations of Subtenant hereunder or under
the Master Lease, without the prior written consent of Subtenant.
12. Broker Fee:
Each party warrants and represents to the other that such party has not retained
the services of any real estate broker, finder or any other person whose
services would form the basis for any claim for any commission or fee in
connection with this Sublease or the transactions contemplated hereby, except
for brokerage services rendered by Cornish & Xxxxx Commercial ("Cornish &
Xxxxx"). Sublandlord shall pay directly to Cornish & Xxxxx its fees due on
account thereof, in accordance with its listing agreement. Each party agrees to
save, defend, indemnify and hold the other party free and harmless from any
breach of its warranty and representation as set forth in the preening sentence,
including the other party's attorneys' fees.
13. Compliance with Nondiscrimination Regulations:
It is understood that it is illegal for Sublandlord to refuse to display or
sublease the Subleased Premises, or to assign, surrender or sell the Master
Lease, to any person because of race, color, religion, national origin, sex,
sexual orientation, marital status or disability.
14. Toxic Contamination Disclosure:
Sublandlord and Subtenant each acknowledge that they have been advised that
numerous federal, state, and/or local laws, ordinances and regulations ("Laws")
affect the existence and removal, storage, disposal, leakage of and
contamination by materials designated as hazardous or toxic ("Toxics"). Many
materials, some utilized in everyday business activities and property
maintenance, are designated as hazardous or toxic.
Some of the Laws require that Toxics be removed or cleaned up by landowners,
future landowners or former landowners without regard to whether the party
required to pay for "clean up" caused the contamination, owned the property at
the time the contamination occurred or even knew about the contamination. Some
items, such as asbestos or PCBs, which were legal when installed, now are
classified as Toxics, and are subject to removal requirements. Civil lawsuits
for damages resulting from Toxics may be filed by third parties in certain
circumstances.
Sublandlord and Subtenant each acknowledge that Broker has not specific
expertise with respect to environmental assessment or physical condition of the
Subleased Premises, including, but not limited to, matters relating to (i)
problems which may be posed by the presence or disposal of hazardous or toxic
substances on or from the Subleased Premises, (ii) problems which may be posed
by the Subleased Premises being within the Special Studies Zone, as designed
under the Xxxxxxx-Xxxxxx Special Studies Zone Act (Earthquake Zones), Section
2621-2630, inclusive of California Public Resources Code, and (iii) problems
which may be posed by the Subleased
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Premises being within a HUD Flood Zone as set forth in the U.S. Department of
Housing and Urban Development "Special Flood Zone Area Maps," as applicable.
Sublandlord and Subtenant each acknowledge that Broker has not made an
independent investigation or determination of the physical or environmental
condition of the Subleased Premises, including but not limited to, the existence
or nonexistence of any underground tanks, sumps, piping, toxic or hazardous
substances on the Subleased Premises. Subtenant agrees that it will rely solely
upon its own investigation and/or the investigation of professionals retained by
it or Sublandlord, and neither Sublandlord nor Subtenant shall rely upon Broker
to determine the physical and environmental condition of the Subleased Premises
or to determine whether, to what extent or in what manner, such condition must
be disclosed to potential sublessees, assignees, purchasers or other interested
parties.
15. Tenant Improvements:
Sublandlord shall be responsible for all costs associated with the. demise of
the Subleased Premises, excluding the costs to demise the kitchen area.
Subtenant shall be responsible for all costs associated with Subtenant
improvements to the Subleased Premises, and for the demise of the kitchen area.
If any of said improvements made by or on behalf of Subtenant (whether the
responsibility of Subtenant or Sublandlord) require additional construction (i)
necessary for compliance with the Americans with Disabilities Act of 1990, or
(ii) relocation, enhancement or repair of the HVAC, electrical or sprinkler
systems, or any part thereof; Subtenant shall be responsible for and shall
perform such construction. If required by Master Landlord or Sublandlord,
Subtenant shall return the Demised Premises to the original configuration
(including removal of all demising walls) at the expiration of the Sublease
term; provided however, nothing herein shall be deemed to impose liabilities on
Subtenant for any alterations or improvements not associated with this Sublease.
16. Reasonable Consent or Approval:
When any provision of this Sublease, the Master Lease or the accompanying-Rules
and Regulations, calls for a party's consent or approval, Sublandlord and
Subtenant each agree that such consent or approval shall not be unreasonably
withheld or delayed.
17. Counterparts:
This Sublease may be executed in any number of counterparts, each of which
counterparts shall be deemed to be an original, and all of which together shall
constitute one and the same instrument.
Sublandlord: XXXXX CORPORATION Address: 000 Xxxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
By: /s/ Xxxxxx X. Xxxxxxxx Date: 10/8/96
------------------------------ ------------------------------------
Xxxxxx X. Xxxxxxxx,
Executive Vice President & CFO
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Subtenant: NETSCAPE COMMUNICATIONS, Address: 000 Xxxxx Xxxxxx
INC Xxxxxxxx Xxxx, XX 00000
By: /s/ [SIGNATURE ILLEGIBLE] Date: 10/28/96
------------------------------ ------------------------------------
NOTICE TO SUBLANDLORD AND SUBTENANT: CORNISH & XXXXX COMMERCIAL, IS NOT
AUTHORIZED TO GIVE LEGAL OR TAX ADVICE; NOTHING CONTAINED IN THIS SUBLEASE OR
ANY DISCUSSION BETWEEN CORNISH & XXXXX AND SUBLANDLORD AND SUBTENANT SHALL BE
DEEMED TO BE A REPRESENTATION OR RECOMMENDATION BY CORNISH & XXXXX COMMERCIAL,
OR ITS AGENTS OR EMPLOYEES AS TO THE LEGAL EFFECT OR TAX CONSEQUENCES OF THIS
DOCUMENT OR ANY TRANSACTION RELATING THERETO. ALL PARTIES ARE ENCOURAGED TO
CONSULT WITH THEIR INDEPENDENT FINANCIAL CONSULTANTS AND/OR ATTORNEYS REGARDING
THE TRANSACTION CONTEMPLATED BY THIS PROPOSAL.
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MASTER LANDLORD CONSENT
The undersigned, Master Landlord under the Master Lease attached as Attachment
I, hereby consents to the subletting of the Subleased Premises described herein
on the terms and conditions contained in this Sublease. This Consent shall apply
only to this Sublease and shall not be deemed to be a consent to any other
Sublease.
Master Landlord: RENAULT & XXXXXXX SOLAR ELLIS JOINT VENTURE
By: /s/ Xxxxxx X. XxXxx Date: 11/1/96
------------------------------- -----------------------------------
Master Landlord: RENAULT & XXXXXXX SOLAR ELLIS JOINT VENTURE
By: /s/ Xxxxxx X. XxXxx Date: 11/04/96
------------------------------- -----------------------------------
Subtenant: NETSCAPE COMMUNICATIONS, INC.
By: [SIGNATURE ILLEGIBLE] Date: 11/6/96
------------------------------- -----------------------------------
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