Exhibit 10.15
SUBLEASE
This Sublease ("Sublease") is entered into between ▇▇▇ Research
Corporation, ("▇▇▇"), a Delaware corporation, and ▇▇▇▇▇▇▇ Technology Inc.
("▇▇▇▇▇▇▇") effective on February ___, 2003 (the "Effective Date").
Whereas ▇▇▇ has leased some 100,728 square feet of commercial space located
at ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ (the "Premises") from Renco Equities IV
("Master Landlord") pursuant to a real property lease including an Addendum with
an effective date of September 12, 2001 (the "Lease") a copy of which is
attached hereto as Exhibit "A". (Initially capitalized terms not otherwise
defined in this Sublease shall have the meanings attributed to such terms in the
Lease);
Whereas, ▇▇▇ desires to sublease the Premises (as that term is defined
above) to ▇▇▇▇▇▇▇;
Whereas ▇▇▇▇▇▇▇ is willing to sublease the Premises from ▇▇▇ subject to the
terms of the Lease, and pursuant to the terms and conditions set forth herein;
and
Whereas a depiction of the Premises is attached as Exhibit "B";
Based on the mutual promises contained herein and other good and valuable
consideration, the parties agree as follows:
1. DEMISE. Subject to the approval of the Master Landlord and in
consideration for the rents and all other charges and payments payable by
▇▇▇▇▇▇▇, and for the agreements, terms and conditions to be performed by
▇▇▇▇▇▇▇ in this Sublease, ▇▇▇ does hereby sublease to ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇
does hereby hire and sublease from ▇▇▇, the Premises located at ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ upon the agreements, terms and conditions of
this Sublease for the term hereinafter stated.
2. USE. ▇▇▇▇▇▇▇ may use the Premises for such uses as are permitted
under the Lease.
3. TERM. The term of this Sublease (the "Sublease Term") shall be for
the period beginning on March 1, 2003 (the "Sublease Commencement Date")
provided that the following conditions (the "Commencement Conditions") have
been satisfied: (a) the execution of the Sublease by both parties; (b)
Master Landlord's written consent to the Sublease in accordance with
Section 24 below, (c) ▇▇▇▇▇▇▇'▇ payment of the Security Deposit and (d)
▇▇▇'▇ delivery of the Premises to ▇▇▇▇▇▇▇. Except for any early termination
for default, the term shall expire on May 17, 2007 (the "Sublease
Expiration Date"). If the Commencement
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Conditions have not been satisfied by March 1, 2003, then ▇▇▇▇▇▇▇ shall be
entitled to terminate this Sublease at any time prior to the satisfaction
of the Commencement Conditions by providing ▇▇▇ written notice of such
election whereupon ▇▇▇ shall return any advance rent and security deposit
paid by ▇▇▇▇▇▇▇ and the parties shall thereafter have no further rights or
obligations hereunder.
4. EARLY POSSESSION. If the Commencement Conditions have been
satisfied prior to March 1, 2003, ▇▇▇▇▇▇▇ may negotiate with ▇▇▇ for the
right of early access to the second floor of the Premises as of such date
for the purposes of installing furniture, equipment, phones and data
connections. In the event of such early possession, ▇▇▇▇▇▇▇ agrees and
acknowledges that such access (a) shall be subject to all of the provisions
of this Sublease, except as the parties may otherwise agree and (b) shall
not advance the Sublease Expiration Date.
4.1 SHARED PREMISES.
4.1(a). Until May 31, 2003, ▇▇▇▇▇▇▇ will only be entitled to use
the second floor of the Premises (approximately 29,232 square feet)
and the front lobby area of the first floor of the Premises
(approximately 3,662 square feet) for a total of 32,894 square feet
(collectively, referred to herein as "▇▇▇▇▇▇▇'▇ Premises"), as more
particularly depicted on the floor plan attached hereto as Exhibit
"C". Until May 31, 2003, ▇▇▇ will continue to occupy the remainder of
the Premises (approximately 67,834 square feet) (referred to herein as
"▇▇▇'▇ Premises"), as more particularly depicted on the floor plan
attached hereto as Exhibit "D". During the time of shared occupancy by
▇▇▇▇▇▇▇ and ▇▇▇, the parties hereby agree that ▇▇▇▇▇▇▇'▇ Rent
obligations shall be prorated as set forth in Section 6.2 below. Prior
to the Sublease Commencement Date, ▇▇▇ shall, at its sole cost and
expense, install a demising wall on the first floor separating
▇▇▇▇▇▇▇'▇ Premises from ▇▇▇'▇ Premises.
4.1(b). ▇▇▇ shall fully vacate and surrender ▇▇▇'▇ Premises to
▇▇▇▇▇▇▇ no later than May 31, 2003 (the "▇▇▇ Vacation Date") in
accordance with the terms of Section 10 below.
4.1(c). The parties hereby agree to abide by all reasonable
policies and procedures established by the other party for security
and confidentiality. The parties hereby agree that their respective
employees, affiliates, and agents shall not enter the premises of the
other party or attempt to access any propriety information owned or
held by the other party. Except in the event of an emergency or as
otherwise provided in the Lease, ▇▇▇▇▇▇▇ shall have sole access to
▇▇▇▇▇▇▇'▇ Premises and ▇▇▇ shall not enter ▇▇▇▇▇▇▇'▇ Premises without
the prior written consent of ▇▇▇▇▇▇▇. Except in the event of an
emergency, ▇▇▇ shall have sole access to ▇▇▇'▇ Premises until the ▇▇▇
Vacation Date and ▇▇▇▇▇▇▇ shall not enter ▇▇▇'▇ Premises without the
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prior written consent of ▇▇▇. Each party hereby agrees to indemnify
and defend the other party and their affiliates, officers, directors,
agents, and employees from and against any and all claims, judgments,
settlements, fines, assessments, penalties, demands, losses, damages,
actions, causes of action, liabilities, costs and expenses, including,
without limitation, attorneys' fees and costs, which either party at
any time may suffer, sustain or incur that arise, result from or are
related to the unauthorized entry by one party on the premises of the
other. The foregoing indemnity shall survive the expiration or earlier
termination of this Sublease. The breach of any obligation of this
Section 4.1(c) shall entitle the non-breaching party to terminate this
Sublease.
5. SECURITY DEPOSIT. ▇▇▇▇▇▇▇ shall deliver to ▇▇▇ a security deposit
in the total amount of One Hundred Ninety Three Thousand Three Hundred
Ninety Seven and 76/100 Dollars ($193,397.76) within three (3) business
days of delivery of a fully executed copy of this Sublease. That deposit
shall be held by ▇▇▇ as security for ▇▇▇▇▇▇▇'▇ full and faithful
performance of each and every term, covenant and condition of the Sublease,
and ▇▇▇ may retain the deposit, or any part thereof, to remedy the breach
or failure to fulfill any such term, covenant or condition which (if a
notice and cure period applies) ▇▇▇▇▇▇▇ has failed to cure within any
applicable notice and cure period set forth in the Sublease. In the event
that ▇▇▇ does retain all or any portion of the deposit, such action shall
be in addition to, and not in lieu of, any other rights or remedies that
▇▇▇ may have under this Sublease and shall not be construed as an election
of remedies. ▇▇▇ shall not be required to keep the Security Deposit
separate from its general funds and ▇▇▇▇▇▇▇ shall not be entitled to any
interest on the deposit. If ▇▇▇ so uses or applies all or any portion of
the Security Deposit, ▇▇▇▇▇▇▇ shall within fifteen (15) days after written
demand deposit with ▇▇▇ in cash an amount sufficient to restore the
Security Deposit to the full original amount. The Security Deposit, or so
much thereof as has not theretofore been applied or retained by ▇▇▇
pursuant to this paragraph 5, shall be returned to ▇▇▇▇▇▇▇ within sixty
(60) days after the later of the expiration of the term or the date which
▇▇▇▇▇▇▇ vacates the Premises and completes its restoration conditions as
described in Section 9 below.
6. RENT. ▇▇▇▇▇▇▇ shall pay Rent to ▇▇▇ as provided herein. Rent under
this Sublease has two components: (1) Sublease Base Rent, as set forth in
Section 6.1 below; and (2) Additional Rent, as described in the Lease and
as modified or supplemented by the additional items described herein
(Sublease Base Rent and Additional Rent are collectively referred to herein
as "Rent"). The intent of the parties is for ▇▇▇▇▇▇▇ to pay all expenses
imposed on ▇▇▇ by virtue of the Lease, including those expenses incurred by
▇▇▇ for upkeep, repair, maintenance and landscaping performed by ▇▇▇ as
Additional Rent under this Sublease, calculated (where applicable) in the
manner described in the Lease, except to the extent of (a) ▇▇▇'▇ obligation
to pay Base Monthly Rent under the Lease; (b) the cost to ▇▇▇ to maintain
the property insurance required by the Lease; (c) any obligations of ▇▇▇
which relate to events that occurred prior to
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▇▇▇▇▇▇▇'▇ occupancy; and (d) ▇▇▇'▇ obligation to pay any brokerage
commission that it has assumed the obligation to pay. Rent shall be due and
payable to ▇▇▇ by ▇▇▇▇▇▇▇ on the same dates on which Rent is due under the
Lease. At each anniversary of the Sublease Commencement Date, when the
Master Landlord changes the Additional Rent payment due, and at such other
mutually agreeable times, the parties shall conduct a reconciliation of the
Additional Rent to provide that ▇▇▇▇▇▇▇ is paying (or has paid) to ▇▇▇ the
sum of Additional Rent that ▇▇▇ is paying (or has paid) to Master Landlord
in addition to the other amounts described herein. ▇▇▇ will provide a
credit against the following month(s) Additional Rent for any excess
payments revealed by the reconciliation. At a reasonable time following the
conclusion of the Sublease, the parties will also do a reconciliation of
Additional Rent payments and will render payment to the other any sums due
based on that reconciliation. ▇▇▇▇▇▇▇'▇ obligation to pay rent under this
Sublease shall ▇▇▇▇▇ only to the extent that ▇▇▇'▇ obligation to pay rent
to Master Landlord shall be abated under the terms of the Lease. Upon
request to ▇▇▇, ▇▇▇▇▇▇▇ shall have the right to review all of ▇▇▇'▇ records
pertaining to Additional Rent.
6.1 Sublease Base Rent. Monthly Sublease Base Rent for the
Premises is as follows:
Commencement Date - September 30, 2003: $0 per month;
October 1, 2003 - February 29, 2004: $50,364 per month;
March 1, 2004 - February 28, 2005: $92,669.76 per month;
March 1, 2005 - February 28, 2006: $94,684.32 per month;
March 1, 2006 - May 17, 2007: $96,698.88 per month
(except for May 2007,
which shall be prorated).
6.2. Additional Rent. Additional Rent will be due on the Sublease
Commencement Date. ▇▇▇ shall notify ▇▇▇▇▇▇▇ at least ten days in
advance of the Sublease Commencement Date of the amount due as
Additional Rent. During the period of shared occupation of the
Premises by ▇▇▇▇▇▇▇ and ▇▇▇ pursuant to Section 4.1(a) above, ▇▇▇▇▇▇▇
shall only be responsible for the Additional Rent attributable to
▇▇▇▇▇▇▇'▇ Premises (i.e. ▇▇▇▇▇▇▇'▇ Additional Rent obligation shall be
prorated based on the formula of 32,894/100,728) until the earlier of
(a) May 31, 2003; provided that ▇▇▇ has fully vacated ▇▇▇'▇ Premises
by such date in accordance with the terms of this Sublease, or (b)
▇▇▇▇▇▇▇'▇ occupancy of ▇▇▇'▇ Premises in accordance with paragraphs 4
and 4.1 above. As prorated ▇▇▇▇▇▇▇ will be responsible for all
Additional Rent on the Premises, as provided in the Lease.
6.3. Prorated Rent. Notwithstanding that the parties intend the
Sublease Commencement Date shall be March 1, 2003, if the Sublease
Commencement Date occurs in the middle of a month, or the Expiration
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Date occurs in the middle of a month, Base Rent and Additional Rent
will be charged at a prorated rate for that month.
6.4. Payment of Property Taxes. Except to the extent prorated in
accordance with Section 6.2 above, ▇▇▇▇▇▇▇ shall pay all property
taxes due and payable by ▇▇▇ under the Lease for the term of the
Sublease. Property taxes will be paid as part of Additional Rent on a
monthly basis.
6.5 Property Tax Appellant Rights. As stated in Article 13.1 of
the Lease, ▇▇▇▇▇▇▇ shall have the right, and ▇▇▇'▇ reasonable
cooperation, to bring suit in any court of competent jurisdiction to
recover from the taxing authority the amount of any such taxes,
assessment, fee or public charge so paid. If ▇▇▇▇▇▇▇ desires to file
suit to a court of competent jurisdiction or file a property tax
appeal to an administrative agency as stated in the Lease, ▇▇▇ agrees
to give ▇▇▇▇▇▇▇ its reasonable cooperation to provide ▇▇▇▇▇▇▇ the
necessary documentation to file its suit or administrative claim.
7. RIGHT TO EXTEND. Notwithstanding the right to extend set forth in
Section 15 of the Addendum to the Lease, ▇▇▇ hereby agrees that from and after
the Effective Date and until May 17, 2006 (the "Outside Date") ▇▇▇▇▇▇▇ shall
have the right to negotiate with Master Landlord and enter into a direct lease
with Master Landlord for possession of the Premises upon the expiration of this
Sublease. During such time period, ▇▇▇ shall not exercise its option to extend
under the Lease or otherwise attempt to re-occupy the Premises. If ▇▇▇▇▇▇▇
successfully enters into a direct lease with Master Landlord, ▇▇▇▇▇▇▇ shall
notify ▇▇▇ in writing (the "Lease Notice") on or before the Outside Date. Upon
receipt of the Lease Notice from ▇▇▇▇▇▇▇, ▇▇▇ hereby agrees and acknowledges
that ▇▇▇ shall forfeit any right to extend the Lease as provided in Section 15
of the Addendum to the Lease and ▇▇▇ covenants with ▇▇▇▇▇▇▇ that ▇▇▇ shall not
attempt to exercise its right to extend the Lease or otherwise seek to re-occupy
the Premises. In exchange for ▇▇▇'▇ forfeiture of its extension rights under the
Lease, ▇▇▇▇▇▇▇ hereby agrees that if ▇▇▇▇▇▇▇ provides the Lease Notice to ▇▇▇ in
accordance with this Section 7, ▇▇▇▇▇▇▇ shall undertake the restoration
obligations for the Premises set forth in Section 9.2 below.
8. ▇▇▇'▇ OBLIGATIONS. ▇▇▇ covenants that ▇▇▇ shall not voluntarily
terminate or modify, or consent to the termination or modification of the Lease
for any reason without ▇▇▇▇▇▇▇'▇ consent; provided, however, that it shall not
be deemed a voluntary termination on ▇▇▇'▇ part if Master Landlord terminates
the Lease in the event of condemnation pursuant to Section 11.2 or Section 11.4
of the Lease, if Master Landlord terminates the Lease in the event of casualty
pursuant to Section 10.3 of the Lease or if ▇▇▇ terminates the Lease as
permitted by Sections 10.4 or 11.1 of the Lease. In the event that ▇▇▇ defaults
on its rental obligations under the Lease, ▇▇▇ shall immediately inform ▇▇▇▇▇▇▇
of same and forward any notice ▇▇▇ receives from Master Landlord on to ▇▇▇▇▇▇▇
promptly upon its receipt. ▇▇▇ shall immediately deliver to ▇▇▇▇▇▇▇ copies of
all default notices pertaining to the Premises ▇▇▇ sends to or receives from
Master Landlord.
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9. RESTORATION AND SURRENDER
9.1 Except as set forth in Section 9.2 below, ▇▇▇▇▇▇▇ shall, at its
sole expense, surrender the Premises at the conclusion of the Sublease to
▇▇▇ in substantially the same condition as when ▇▇▇▇▇▇▇ first took
possession thereof at the beginning of this Sublease for ▇▇▇▇▇▇▇'▇ Premises
and upon ▇▇▇'▇ vacation for ▇▇▇'▇ Premises, as such condition was
documented in accordance with Section 10 below, except for the following
items: (a) normal wear and tear, (b) any condemnation covered by Article
XIII of the Lease, and (c) the remediation of Hazardous Materials present
on or under the Premises, the Building, the Property or the Project, except
to the extent such presence occurs during ▇▇▇▇▇▇▇'▇ occupancy or is caused
by the acts or omissions of ▇▇▇▇▇▇▇ or ▇▇▇▇▇▇▇'▇ agents, invitees or
employees. Notwithstanding the foregoing, ▇▇▇ hereby agrees and
acknowledges that ▇▇▇▇▇▇▇ shall not be responsible for the removal of any
improvements, alterations or fixtures to the Premises not made or permitted
by ▇▇▇▇▇▇▇ during the Sublease Term and then, only if so required by Master
Landlord at the time Master Landlord grants consent for such alterations or
improvements. ▇▇▇ hereby agrees and acknowledges that ▇▇▇▇▇▇▇ shall not be
required to comply with the surrender, removal and restoration obligations
set forth in the Lease, including without limitation, Section 2.6 thereof
except as provided in Section 9.2 below.
9.2 If ▇▇▇▇▇▇▇ provides ▇▇▇ with the Lease Notice pursuant to Section
7 above, then ▇▇▇▇▇▇▇ shall comply with the surrender and restoration
obligations set forth in Section 2.6 of the Lease. Notwithstanding the
foregoing, ▇▇▇ hereby agrees and acknowledges that ▇▇▇▇▇▇▇ shall not be
responsible for the remediation of Hazardous Materials present on or under
the Premises, the Building, the Property or the Project, except to the
extent such presence occurs during ▇▇▇▇▇▇▇'▇ occupancy or is caused by the
acts or omissions of ▇▇▇▇▇▇▇ or ▇▇▇▇▇▇▇'▇ agents, invitees or employees.
10. CONDITION. Except as otherwise set forth herein, ▇▇▇ shall deliver
to ▇▇▇▇▇▇▇ the Premises "as is", less removal of excess equipment. ▇▇▇
shall deliver all building systems and subsystems in good working order and
repair to the best of ▇▇▇'▇ knowledge prior to ▇▇▇▇▇▇▇'▇ occupancy. Prior
to the Sublease Commencement Date for ▇▇▇▇▇▇▇'▇ Premises and prior to the
▇▇▇ Vacation Date for ▇▇▇'▇ Premises, ▇▇▇ shall take all necessary steps to
obtain a hazardous materials building closure permit from the City of
Fremont. Both parties acknowledge that the actual permit may not be
received by the time that ▇▇▇▇▇▇▇ occupies the Premises, but ▇▇▇▇▇▇▇'▇
occupancy shall not relieve ▇▇▇ of the obligation to obtain the building
closure permit unless this Sublease is terminated as described herein. ▇▇▇
shall provide ▇▇▇▇▇▇▇ with all documentation relevant to such permit
process. ▇▇▇ will make no tenant improvements to the Premises nor provide
▇▇▇▇▇▇▇ with any allowance for Tenant Improvements.
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Prior to the Sublease Commencement Date, ▇▇▇ and ▇▇▇▇▇▇▇ shall together
complete a walk through and inspect the Premises (which inspection shall include
the testing of all utility facilities, lighting, HVAC equipment, and other
service equipment affecting the Premises, and an inspection of all ceilings,
walls, and floors) using their best efforts to document, with digital
photographs or otherwise, the existing condition of the Premises, including the
identification and location of all improvements, alterations or fixtures
(whether permitted or not by Master Landlord) in the Premises. Prior to the ▇▇▇
Vacation Date, ▇▇▇ and ▇▇▇▇▇▇▇ shall again complete a walk through and
inspection of ▇▇▇'▇ Premises to document the existing condition of ▇▇▇'▇
Premises and identify all existing improvement, alterations and fixtures.
11. PARKING AND COMMON AREA ACCESS. Subject to the terms and conditions of
the Lease, ▇▇▇▇▇▇▇ shall have the right to use the parking lot and other Common
Areas on the real property on which the Premises are situated.
12. SIGNAGE. Signage shall be permitted, with the Master Landlord's
approval and subject to any governmental rule or regulation, as permitted in the
Lease. ▇▇▇▇▇▇▇ shall be entitled to install signage on the exterior of the
Building on or after March 1, 2003.
13. ADA; Other Laws and Regulations.
13.1 To ▇▇▇'▇ actual knowledge, it has not received any notices that
the Premises are in violation of the Americans with Disabilities Act
("ADA"). ▇▇▇▇▇▇▇ acknowledges that it has been informed that it may be
required to construct improvements on the Premises or invest substantial
sums in the Premises to comply with governmental laws, rules or regulations
(including the ADA) arising out of ▇▇▇▇▇▇▇'▇ alterations to the Premises or
particular use of the Premises. ▇▇▇▇▇▇▇ has conducted its own independent
investigation concerning its obligations under the ADA, as well as other
governmental acts, rules and regulations, and is satisfied with that
investigation. ▇▇▇▇▇▇▇ agrees to indemnify and hold ▇▇▇ and Master Landlord
harmless from any claim, cost or obligation arising from ▇▇▇▇▇▇▇'▇
violation or non-compliance with any governmental law, rule or regulation
(including the ADA) arising out of ▇▇▇▇▇▇▇'▇ alterations to the premises or
particular use of the Premises.
13.2 Notwithstanding the foregoing, ▇▇▇ hereby agrees and acknowledges
that ▇▇▇▇▇▇▇ shall not be responsible for any non-compliance with any
governmental law, rule or regulation, including without limitation, the
Laws, Private Restrictions, the ADA or the remediation of Hazardous
Materials, concerning the ▇▇▇▇▇▇▇ Premises existing on or prior to the
Sublease Commencement Date and concerning the ▇▇▇ Premises existing on or
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prior to the ▇▇▇ Vacation Date. Prior to the Sublease Commencement Date for
▇▇▇▇▇▇▇'▇ Premises and prior to the ▇▇▇ Vacation Date for ▇▇▇'▇ Premises,
▇▇▇ shall take all necessary steps to obtain a hazardous materials building
closure permit from the City of Fremont. If ▇▇▇ fails to obtain a hazardous
materials building closure permit within twelve (12) months of the Sublease
Commencement Date, then either party shall be entitled to terminate this
Sublease. ▇▇▇ shall provide ▇▇▇▇▇▇▇ with all documentation relevant to such
permit process. Additionally, ▇▇▇▇▇▇▇ shall be entitled to have an
environmental engineer conduct environmental baseline site sampling on the
Premises and submit the results of such sampling (the "Environmental
Report") to ▇▇▇▇▇▇▇ within forty five (45) days of the Effective Date. If
the Environmental Report indicates site contamination above minimum
detectable analytical levels on the Property, Building or the Premises, or
any portion thereof, then, ▇▇▇▇▇▇▇ shall be entitled to terminate this
Sublease by providing ▇▇▇ written notice of such election. In the event
that ▇▇▇▇▇▇▇ terminates this Sublease pursuant to this Section 13.2, ▇▇▇
shall return to ▇▇▇▇▇▇▇ any advance rent and security deposit paid by
▇▇▇▇▇▇▇ and the parties shall thereafter have no further rights or
obligations hereunder.
14. LEASE OBLIGATIONS. (A) Except as expressly set forth below in
Paragraphs 14(B) or 14(C) or contrary to the terms of this Sublease, the Lease
is incorporated herein in its entirety by this reference. For the purpose of
this Sublease, all references in the Lease to "Landlord" shall be deemed to mean
▇▇▇ and all references to "Tenant" shall be deemed to mean ▇▇▇▇▇▇▇, all
references to "Leased Premises" shall be deemed to mean Premises and all
references to "Lease" shall mean this Sublease.
(B) The following provisions of the Lease are specifically excluded
from incorporation into this Sublease: Sections 2.3; 3.6 and 7.2 of the
Lease and Section 17 of the Addendum. Article 1 of the Lease shall be used
for reference only. The following provisions of the Lease are incorporated
herein, with a modification, in that all references in these paragraphs to
"Landlord" shall be deemed to mean "Renco Equities IV" (i.e. Landlord under
the Lease): Sections 5.1.B.; 5.2; 6.2; 9.2; 10.1; 10.4; 13.3; 13.4; 13.5;
13.6; all of Article 11; and Sections 5.1; 6.1; 13.12-C of the Addendum. To
the extent any of the provisions of the Lease incorporated herein are
inconsistent with this Sublease, the terms of the Sublease shall prevail.
Except as excluded from the Sublease or as otherwise modified by the terms
of this Sublease, the following provisions of the Lease are modified in
that all references in these paragraphs to "Landlord" shall be deemed to
mean (i) either ▇▇▇ or Renco Equities IV (when the provision refers to the
Landlord's representations or ability to exercise a power or right) or (ii)
both ▇▇▇ and Renco Equities IV (when the provision refers to the tenant's
representations, duty or obligation): Sections 4.9; 4.14; 5.1; 5.3; 5.4;
5.5; 6.1; 6.3; 8.1; 8.2; 9.1; 10:3; 13.8; 14.4 and Section 9.1 of the
Addendum. To the extent any of the provisions of the Lease incorporated
herein are inconsistent with this Sublease, the terms of the Sublease shall
prevail.
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(C) Notwithstanding the foregoing incorporation of the terms and
conditions of the Lease, ▇▇▇ shall not be responsible for the performance
of any obligations to be performed by the Master Landlord under the Lease,
and ▇▇▇▇▇▇▇ agrees to look solely to the Master Landlord for the
performance of such obligations. At ▇▇▇▇▇▇▇'▇ written request, ▇▇▇
covenants to use good faith, reasonable efforts to enforce against Master
Landlord all provisions of the Lease benefiting ▇▇▇▇▇▇▇. ▇▇▇▇▇▇▇ shall
reimburse ▇▇▇ for all reasonable costs incurred by ▇▇▇ in enforcing such
covenants against Master Landlord, except to the extent Master Landlord is
required to reimburse ▇▇▇ or directly pay for such reasonable costs
pursuant to the Lease. If Master Landlord shall default in the performance
of any of its obligations under the Lease or at law, ▇▇▇ shall, upon
request of ▇▇▇▇▇▇▇, cooperate with ▇▇▇▇▇▇▇ in the prosecution of any action
or proceeding in order to have Master Landlord (i) make such repairs,
furnish such electricity, provide such services or comply with any other
obligation of Master Landlord under the Lease or as required by law, and/or
(ii) compensate ▇▇▇▇▇▇▇ for any earlier default by Master Landlord in the
payment or performance of its liabilities and obligations under the Lease
during the Sublease Term. If ▇▇▇ fails to take prompt and appropriate
action to enforce ▇▇▇'▇ rights against Master Landlord, ▇▇▇▇▇▇▇ shall have
the right to take such action in ▇▇▇'▇ name and, for the purpose and to
such extent, all rights and remedies of ▇▇▇ under the Lease are hereby
conferred upon and assigned to ▇▇▇▇▇▇▇
(D) ▇▇▇▇▇▇▇ agrees to defend, indemnify and hold ▇▇▇ harmless from and
against any and all claims, liabilities, losses, damages and expenses
(including reasonable attorneys' fees) incurred by ▇▇▇ arising out of, from
or in connection with (i) the use or occupancy of the Premises by ▇▇▇▇▇▇▇,
(ii) any breach or default by ▇▇▇▇▇▇▇ under this Sublease, (iii) the
failure of ▇▇▇▇▇▇▇ to perform any obligation under the terms and provisions
of the Lease assumed by ▇▇▇▇▇▇▇ hereunder or required to be performed by
▇▇▇▇▇▇▇ as provided herein or (iv) any damage, injury or loss incurred by
▇▇▇ as a result of the actions of ▇▇▇▇▇▇▇ or its agents, employees,
contractors or invitees.
15. DEFAULT. Section 12.1 of the Lease is incorporated herein with the
following modifications: the notice to cure period is shortened from ten (10)
days to seven (7) days in Section 12.1.A. of the Lease and the notice to cure
period is shortened from thirty (30) days to twenty (20) days in Section 12.1.C
of the Lease. In the event of default by ▇▇▇▇▇▇▇, if ▇▇▇ assumes possession of
the Premises, it shall be entitled, but not obligated, to seek another subtenant
for the Premises.
15.1 HOLDING OVER. If ▇▇▇▇▇▇▇ remains in possession of all or any part
of the Premises after the expiration of the Sublease Term (or any approved
extension thereof) without the prior written consent of ▇▇▇, ▇▇▇ shall have
the right to seek immediate eviction of ▇▇▇▇▇▇▇, in addition to any other
remedies at law or equity. In addition, ▇▇▇▇▇▇▇ shall be obligated to pay
▇▇▇ as Sublease Base Rent the amount imposed on ▇▇▇ as Holdover Rent
pursuant to Section 13.2 of the Lease, in addition to Additional Rent,
attorneys' fees, expert fees and costs of litigation. Any such holding over
shall still be subject to every other term, condition and covenant of this
Sublease.
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16. MAINTENANCE. Except as provided herein, ▇▇▇▇▇▇▇ shall assume and
fulfill all maintenance or repair obligations on the Premises, to the same
extent required by ▇▇▇ under the Lease. ▇▇▇▇▇▇▇ shall also be responsible for
the cost of all standard operating expenses, such as utilities, janitorial costs
and interior maintenance.
17. TENANT IMPROVEMENTS AND EQUIPMENT. There is no allowance for Tenant
Improvements under this Sublease. ▇▇▇ shall, however, allow ▇▇▇▇▇▇▇ to use
certain ▇▇▇ telephone systems and office equipment and chattels during the term
of this Sublease, as inventoried on the schedule attached hereto as Exhibit "E".
All such equipment and chattels are provided "as is" without warranty of any
kind. ▇▇▇▇▇▇▇ shall maintain all such equipment and chattels in substantially
the same condition existing, normal wear and tear excepted. Provided that
▇▇▇▇▇▇▇ fully performs all obligations of this Sublease, ▇▇▇▇▇▇▇ shall acquire
ownership of such equipment and chattels from ▇▇▇ at the conclusion of the
Sublease Term for no additional consideration. ▇▇▇▇▇▇▇ may, at its own expense,
make tenant improvements provided that, before ▇▇▇▇▇▇▇ makes any tenant
improvements or changes to the Premises, ▇▇▇▇▇▇▇ shall first obtain ▇▇▇ and
Master Landlord's written approval of such changes. ▇▇▇▇▇▇▇ may use the
contractor of its choice for such tenant improvements, and ▇▇▇'▇ consent to
those improvements shall not be unreasonably withheld. All such improvements or
changes shall comply with all laws, regulations and building codes applicable
thereto.
18. INSURANCE. ▇▇▇ shall continue to maintain existing insurance policies
for the Premises as required under the Lease until such time as ▇▇▇ has fully
vacated the Premises. ▇▇▇▇▇▇▇ shall maintain insurance on the Premises as
required by Article 9 of the Lease, naming both Master Landlord and ▇▇▇ as
additional insureds. The parties hereby agree that the waiver of subrogation
contained in Section 9.3 of the Lease shall be a three party agreement binding
among and inuring to the benefit of Master Landlord, ▇▇▇ and ▇▇▇▇▇▇▇; subject to
Master Landlord's consent.
19. ADDITIONAL MEASURES. At no cost to ▇▇▇, ▇▇▇▇▇▇▇ shall take such
reasonable, additional actions as are necessary, in ▇▇▇▇▇▇▇'▇ reasonable
judgment, for ▇▇▇ to comply with all applicable laws, rules and regulations
relating to the Premises and to permit ▇▇▇'▇ compliance with the Lease. ▇▇▇▇▇▇▇
shall conduct itself in a way so as to avoid imposing obligations upon ▇▇▇ which
are not created by the terms of this Sublease.
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20. ENTIRE AGREEMENT. This Sublease in conjunction with the attachments and
the provisions of the Lease incorporated herein constitute an integrated
agreement and supersede all prior written or oral negotiations and agreements
between the parties relating to this Sublease.
21. REPRESENTATIONS AND WARRANTIES. ▇▇▇ and ▇▇▇▇▇▇▇ each make the following
representations and warranties, each of which is material to the execution of
this Sublease:
(1) It is a corporation, duly organized, validly existing and in good
standing under the laws of its state of incorporation.
(2) The person executing the Sublease on its behalf has full power and
authority to execute and deliver this Sublease.
(3) This Sublease, once executed, is a legal, valid and binding
obligation on it.
(4) That it is not aware of any event, cause or condition which would
constitute a breach any term or condition of the Lease by the execution of
this Sublease.
23. CONSTRUCTION OF AGREEMENT. This agreement is governed by California
law. The parties agree that this Sublease represents an agreement that has been
mutually negotiated and agreed to by the parties, each possessing equal
bargaining power, so that there will be no presumption in favor of either party
in construing any ambiguities in the agreement. Should any provision of this
agreement be held illegal or unenforceable, the remaining terms of this
agreement shall not be affected thereby and the illegal or unenforceable
provision shall be replaced by a mutually agreeable provision which reflects the
intent of the parties. This agreement may not be modified or altered except by
an agreement in writing signed by an authorized representative of both parties.
24. CONSENT REQUIREMENT. This Sublease is conditional upon receipt of
Master Landlord's written consent, in form and substance satisfactory to
▇▇▇▇▇▇▇. If such consent is not obtained by ▇▇▇ and approved by ▇▇▇▇▇▇▇, all
prepaid deposits will be returned and neither party will have rights or
obligations to the other hereunder.
25. BROKER. ▇▇▇ and ▇▇▇▇▇▇▇ each warrant and represent to the other that
neither has had any dealings with any real estate broker, agent or finder in
connection with the negotiation of this Sublease or the introduction of the
parties to this transaction, except for _____________________ (collectively, the
"Brokers"). The commission for the Brokers shall be paid by ▇▇▇ pursuant to the
terms of a separate written agreement between ▇▇▇ and the Brokers. Each party
further represents and warrants that it knows of no other real estate broker,
agent or finder who is, or might be, entitled to a commission or a fee in
connection with this Sublease. In the event of any additional claim for brokers'
or finders' fees with respect to this Lease, ▇▇▇▇▇▇▇ shall indemnify, hold
harmless, protect and defend ▇▇▇ from and against such claims if they shall be
based upon any statement or representation or agreement made by ▇▇▇▇▇▇▇ and ▇▇▇
shall indemnify, hold harmless, protect and defend ▇▇▇▇▇▇▇ from and against such
claims if they shall be based on any statement, representation or agreement made
by ▇▇▇.
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26. NOTICES. All notices, demands, statements and other communications that
may or are required to be given by either party to the other hereunder shall be
in writing and shall be (i) personally delivered to the address or addressee
provided herein or sent via facsimile to the fax number provided below, or (ii)
sent by first class United States mail, postage prepaid, or (iii) delivered by a
reputable messenger or overnight courier service and, in any case, addressed as
follows:
If to ▇▇▇: ▇▇▇ Research Corporation
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇
If to Mattson (prior to the ▇▇▇▇▇▇▇ Technology, Inc.,
Sublease Commencement Date): ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇
If to Mattson (after the ▇▇▇▇▇▇▇ Technology, Inc.,
Sublease Commencement Date): ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇
27. CONFIDENTIALITY. Mattson shall preserve the confidential nature of any
of ▇▇▇'▇ confidential or proprietary information to which it is exposed. If
▇▇▇▇▇▇▇ comes into possession of any of ▇▇▇'▇ confidential or proprietary
information, it shall immediately return such information to ▇▇▇ without
disseminating or copying it.
Wherefore, the parties affix their signatures to this Sublease as evidence
of their agreement to its terms and conditions.
▇▇▇ Research Corporation ▇▇▇▇▇▇▇ Technology Inc.
by __________________________ by _____________________
its __________________________ its _____________________
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