TRIPLE NET SUB-SUBLEASE
Exhibit 10.28
TRIPLE NET SUB-SUBLEASE
This SUB-SUBLEASE (this “Sub-sublease”) is entered into as of June 27, 2006 (the “Execution
Date”) by and between TERAYON COMMUNICATION SYSTEMS, INC., a Delaware corporation
(“Sub-sublandlord”), and CITRIX SYSTEMS, INC., a Delaware corporation (“Sub-subtenant”).
1. BACKGROUND.
1.1 Premises. Sobrato Development Companies #961, a California limited partnership
(successor-in-interest to Sobrato Interests III, a California limited partnership (“Original
Sobrato”)) (“Master Landlord”), holds fee simple title to a parcel of land located at ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, as more particularly described in Exhibit A
attached hereto, including a five (5) story building located on such land, which building
contains approximately One Hundred Forty Thousand Nine Hundred Sixty-Five (140,965) square feet
(the “Building,” together with such land is sometimes collectively referred to herein as the
“Property”). The “Premises,” as more particularly described in Exhibit B attached hereto, shall
mean the Property together with: (a) all other buildings, structures and improvements, if any,
located on the Property; and (b) the appurtenances of Master Landlord and all the estate and
rights of Master Landlord in and to the Property.
1.2 Master Lease. Original Sobrato entered into a Lease, dated September 18, 1996 (the
“Master Lease”), with VeriFone, Inc., a California corporation, predecessor-in-interest to
Hewlett-Packard Company, a Delaware corporation (“Sublandlord”), pursuant to which Master
Landlord leased the Premises to Sublandlord.
1.3 Sublease. Sublandlord and Sub-sublandlord entered into a Triple Net Sublease dated
April 1, 2002 (the “Sublease”), pursuant to which Sublandlord subleases the Premises to
Sub-sublandlord. Sub-subtenant acknowledges its receipt in April, 2006, from Sub-sublandlord,
of a copy of the Master Lease, the Sublease, and an itemized triple-net (NNN) expense report
including all utility and janitorial costs, for the Premises for each month of calendar year
2005. Sub-sublandlord represents that it has provided Sub-subtenant with, to best of
Sub-sublandlord’s knowledge, true, complete and accurate copies of the Master Lease and Sublease
in Sub-sublandlord’s possession.
1.4 Desire to Sub-sublease. Sub-sublandlord desires to sub-sublease the Premises to
Sub-subtenant, and Sub-subtenant desires to sub-sublease the Premises from Sub-sublandlord.
NOW, THEREFORE, in consideration of the covenants and agreements of the parties contained in
this Sub-sublease, and for other good and valuable consideration, the receipt and sufficiency of
which are conclusively acknowledged by both parties, Sub-sublandlord and Sub-subtenant agree as set
forth below.
2. DEMISING OF PREMISES. Sub-sublandlord hereby sub-subleases the Premises to Sub-subtenant, and
Sub-subtenant hereby sub-subleases the Premises from Sub-sublandlord, for the Sub-sublease Term (as
defined below in Section 3), upon the terms and conditions of this Sub-sublease.
3. SUB-SUBLEASE TERM. Subject to Sections 4, 5 and 6 below, the term of this Sub-sublease (the
“Sub-sublease Term”) shall commence on or before September 18, 2006 (the “Targeted Delivery Date”),
and shall expire on October 31, 2009 (the “Expiration Date”), unless terminated sooner in
accordance with the terms of this Sub-sublease. On the Targeted Delivery Date Sub-sublandlord
shall deliver sole and exclusive possession, free of all parties in possession, of all the
Premises. The date on which Sub-sublandlord actually delivers sole and exclusive possession of all
the Premises shall constitute the commencement date (the “Commencement Date”). Whether or not the
Targeted Delivery Date actually precedes or coincides with Sub-sublandlord’s delivery of the
possession of all of the Premises, the parties shall confirm the Commencement Date by a letter
agreement substantially in the form of Exhibit C attached hereto, within five (5) business days
after the Commencement Date occurs, and Base Rent (as defined in Subsection 7.1 below) shall be due
and payable in accordance with Subsection 7.2 and Sub-subtenant shall continue paying Additional
Rent (as defined in Subsection 7.3 below).
4. CONDITIONS PRECEDENT TO EFFECTIVE SUB-SUBLEASE COMMENCEMENT DATE. Notwithstanding the
Sub-sublandlord and Sub-subtenant’s full execution of this Sub-sublease, the Sub-sublease Term
shall not commence unless all of the following eight (8) conditions precedent (the “Conditions
Precedent”) have occurred on or before June 23, 2006 (the “Conditions Precedent Satisfaction
Date”). If any of the Conditions Precedent fail to occur by the Conditions Precedent Satisfaction
Date (subject to force majeure as set forth in Subsection 12.3 below), the Targeted Delivery Date
shall be extended one business day for each business day of delay in the occurrence of all the
Conditions Precedent. If any of the Conditions Precedent fail to occur by June 30, 2006, this
Sub-sublease shall terminate, which termination shall render all terms and conditions hereunder
null and void, unless the Sub-sublandlord and Sub-subtenant mutually agree in writing to extend
such date.
4.1 Execution of this Sub-sublease. Sub-sublandlord and Sub-subtenant shall fully execute
this Sub-sublease.
4.2 Sub-sublandlord’s Replacement Space. Sub-sublandlord and a third-party landlord shall
sign a lease for replacement space, thereby enabling Sub-sublandlord to deliver to Sub-subtenant
the Premises on or before the Targeted Delivery Date.
4.3 Landlord Consents. Sub-sublandlord shall obtain the written consent to this
Sub-sublease from: (1) the Master Landlord, in a form acceptable to Sub-subtenant, in the
exercise of its reasonable discretion (the “Master Landlord Consent”), and (2) the Sublandlord,
in substantially the form of the attached (the “Sublandlord Consent,” together with the Master
Landlord Consent referred to herein as the “Landlord Consents”). Each of the Landlord Consents
shall include their respective approvals of the TI Plans, pursuant to Subsection 4.4 below.
4.4 Approval of Sub-subtenant’s Tenant Improvements. Master Landlord, Sublandlord and
Sub-sublandlord shall deliver their reasonable written approval of the initial tenant
improvements proposed by Sub-subtenant for the Premises. Sub-sublandlord acknowledges that
Sub-subtenant delivered its TI Plans on May 12, 2006 to Master Landlord,
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Sublandlord and Sub-sublandlord. Such written approvals of the TI Plans by the Master
Landlord and Sublandlord shall be set forth in their respective Landlord Consents.
4.5 Release from Master Lease and Sublease Restoration Obligations. Upon written approval
of the TI Plans by Master Landlord: (i) Sub-subtenant shall be released from all restoration
obligations otherwise owed by Sublandlord and/or Sub-sublandlord under the Master Lease or
Sublease; (ii) Sub-sublandlord shall be released from all restoration obligations under the
Sublease; and (iii) Sublandlord shall be released from all restoration obligations under the
Master Lease and Sublease. If Master Landlord does not approve Sub-subtenant’s TI Plans and
Sub-subtenant enters into the Definitive Lease (as defined in Subsection 4.7 below), then, and
only then shall Sub-subtenant assume the restoration obligations of Sublandlord and
Sub-sublandlord.
4.6 Sublandlord’s Acceptance of Sub-subtenant’s Attornment. Sub-sublandlord shall use
commercially reasonable efforts to obtain from Sublandlord an attornment agreement as contained
in the Sublandlord Consent attached hereto or a separate agreement to the effect that if any
default by Sub-sublandlord under the Sublease causes the Sublease to terminate, Sublandlord will
accept Sub-subtenant’s attornment and honor this Sub-sublease (unless Sub-subtenant is in breach
of this Sub-sublease).
4.7 Master Landlord’s Acceptance of Sub-subtenant’s Attornment. Sub-sublandlord shall use
commercially reasonable efforts to obtain from Master Landlord the Master Landlord Consent which
will provide that if any default by Sublandlord under the Master Lease causes the Sublease to
terminate, Master Landlord will accept Sub-subtenant’s attornment and honor this Sub-sublease
for the balance of the Sub-sublease Term (unless Sub-subtenant is in breach of this
Sub-sublease).
4.8 Execution of Lease Agreement by and between Master Landlord and Sub-subtenant. Master
Landlord and Sub-subtenant are contemporaneously negotiating a definitive lease for the Premises
with an effective date on or about November 1, 2009. This definitive lease for the Premises
between Master Landlord and Sub-subtenant shall have been fully executed (the “Definitive
Lease”).
5. DELIVERY OF POSSESSION. (a) Sub-sublandlord shall deliver sole and exclusive possession, free
of all parties in possession, of all the Premises to Sub-subtenant on or before the Targeted
Delivery Date. If Sub-sublandlord does not deliver possession to Sub-subtenant of the Premises, or
any portion thereof, on or before the Targeted Delivery Date, Sub-sublandlord shall pay Base Rent
(as defined in Subsection 7.1 below) and Additional Rent (as defined in Subsection 7.3 below) for
whatever portion of the Premises that Sub-sublandlord then occupies for the period of time it
remains in possession of such space after the Targeted Delivery Date until the date Sub-sublandlord
vacates such space.
(b) Notwithstanding the foregoing, if for any reason (other than Sub-subtenant’s default
under this Sub-sublease) Sub-sublandlord does not deliver possession of the Premises to
Sub-subtenant on or before October 31, 2006, (the “Vacation Date”), Sub-subtenant shall have the
right to either (i) terminate this Sub-sublease by providing written notice of the same to
Sub-sublandlord within five (5) days after the Vacation Date (“Final Termination Right”), or (ii)
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institute legal or other action of specific performance to require Sub-sublandlord to vacate
the Premises, or any portion thereof, and deliver possession of the same to Sub-subtenant in the
condition required under this Sub-sublease.
6. EARLY OCCUPANCY. Following the Conditions Precedent Satisfaction Date, Sub-subtenant shall have
the right to occupy the fourth (4th) and fifth (5th) floors of the Building,
without paying any Base Rent (as defined in Subsection 7.1 below), but shall pay its pro rata share
(depending on the amount of space in the Building occupied by Sub-subtenant) of Additional Rent (as
defined in Subsection 7.3 below), for the period from the date Sub-subtenant takes possession of
the fourth (4th) and fifth (5th) floors of the Building until the Targeted
Delivery Date. If, prior to the Targeted Delivery Date, Sub-sublandlord vacates the first
(1st) and second (2nd) floors of the Building and delivers the same to
Sub-subtenant for its sole and exclusive occupancy, Sub-subtenant shall have the right to occupy
such floors without paying Base Rent, but shall pay its pro rata share (depending on the amount of
space in the Building occupied by Sub-subtenant) of Additional Rent, for the period from the date
Sub-subtenant takes possession of such floors until the Commencement Date.
7. RENT.
7.1 Payment; Proration, etc. The parties hereto shall cause Sublandlord to agree in its
Landlord Consent to this Sub-sublease and shall cause Sublandlord to send its monthly invoices
for all rent under the Sublease to each of Sub-sublandlord and Sub-subtenant at the addresses
under Subsection 12.4 below (Notices) showing their respective share of the rent then due.
Sub-sublandlord and Sub-subtenant shall pay all rental payments due hereunder, in accordance
with the payment schedule under Section 3.1 of the Sublease, as evidenced by such invoices,
directly to Sublandlord at 1501 Page Mill Road, MS 1001, ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, or at such other
address as may be designated in writing by Sublandlord, on the first day of each and every month
of the Sub-sublease Term (except for the first month’s rent which shall be due pursuant to
Subsection 7.2 below) as base monthly rent (“Base Rent”) for the Premises.
Sub-sublandlord shall be responsible to pay Sublandlord directly all rents owed under Section
3.1 of the Sublease less the following rents which shall be paid by Sub-subtenant directly to
Sublandlord:
| Duration | Price/SF/Month/NNN | |
From Early Occupancy Date to the Commencement Date |
$0 (no Base Rent) | |
Months 1-12 following the Commencement Date |
$1.25 | |
Months 13-24 |
$1.2875 | |
Months 25 – Expiration Date |
$1.33 |
Fixed rent for partial months at the beginning or end of the Sub-sublease Term shall be prorated
based on the number of days in such month within the Sub-sublease Term divided by thirty (30).
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7.2 First Month’s Rent. Sub-subtenant shall pay to Sublandlord an amount equal to the
first month’s payable rent no later than five (5) business days after the Commencement Date. If
Sub-subtenant subsequently exercises its Final Termination Right, then such rent shall be
returned to Sub-subtenant.
7.3 Additional Rent. The parties hereto shall cause Sublandlord to agree in its Landlord
Consent and cause Sublandlord to send its monthly invoices for Additional Rent (as defined in
this Subsection 7.3) directly to Sub-subtenant. During the term of this Sub-sublease and
pursuant to Section 6 above, Sub-subtenant shall pay directly to Sublandlord an amount equal to
all payments of additional rent required to be made by Sublandlord pursuant to the Sublease,
including without limitation operating costs and Maintenance (as defined in Section 6.1 of the
Sublease) costs (“Additional Rent”). Sub-subtenant shall pay each such item of Additional Rent
at the same time as Sub-sublandlord is required to make the corresponding payment under Section
3.3 of the Sublease. Additional Rent for any partial month shall be prorated as set forth in
Subsection 7.1 above.
7.4 Other Payments Relating to the Premises. Sub-subtenant shall pay any and all other
payments due in accordance with the Sublease and Master Lease with respect to the Premises
during the Sub-sublease Term, but excluding any payments owed by Sublandlord or Sub-sublandlord
for the period prior to the Commencement Date and excluding any liabilities of Sublandlord under
the Sublease arising prior to the Commencement Date. Sub-subtenant shall make all such payments
at the same time as Sub-sublandlord is required to make the corresponding payment under the
Sublease, but in no event shall Sub-subtenant be required to make any such payment earlier than
ten (10) business days after receipt of an invoice from Master Landlord, Sublandlord or
Sub-sublandlord. Any such other payments for any partial month shall be prorated as set forth
in Subsection 7.1 above.
Anything in this Sub-sublease to the contrary notwithstanding, Sub-subtenant shall not be
required to make a payment under Subsections 7.1 and 7.3 of this Sub-sublease to more than one of
the following parties: Sub-sublandlord, Sublandlord or Master Landlord.
7.5 Other Payments to Sub-sublandlord. Upon Sub-subtenant’s receipt of confirmation of
each of the following deliverables set out below (“Sub-sublandlord’s Deliverables”),
Sub-subtenant shall cause to be paid to Sub-sublandlord a one time payment of three hundred
thousand dollars ($300,000.00), of which one hundred fifty thousand dollars ($150,000.00) is to
be made thirty (30) days following Sub-subtenant’s receipt of confirmation of Sub-sublandlord’s
Deliverables. Sub-sublandlord’s Deliverables constitute:
(a) an executed Sub-sublease agreement between Sub-subtenant and Sub-sublandlord with
Sublandlord’s consent; and
(b) an executed lease agreement between Sub-sublandlord and Master Landlord.
The balance of one hundred fifty thousand dollars ($150,000.00) is to be made thirty (30) days
following the Commencement Date.
8. CONDITION OF PREMISES. Sub-subtenant shall take possession of the Premises in its “AS IS”
condition, subject to the requirements of this Section 8.
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8.1 Good Working Condition. Sub-sublandlord shall deliver the Premises to Sub-subtenant
with lighting and /or ballasts replaced or repaired that reasonably require replacement or
repair, and any damaged or soiled ceiling tiles replaced. Sub-sublandlord warrants that the
HVAC system is in good working order as of the Commencement Date, and that, to the best of
Sub-sublandlord’s knowledge, Sub-sublandlord has not received any written notice of any
violation of any statute, code, regulation, ordinance or rule of any governmental agency as of
the Commencement Date. Sub-sublandlord has provided Sub-subtenant with any recent inspections,
maintenance records or reports on the Premises, including documents relating to HVAC
(mechanical), electrical, and plumbing systems, and the roof. Sub-subtenant, at its sole cost
and expense, hereby confirms that it has ample time to undertake its own inspections of any of
the Building’s systems and other portions of the Premises.
8.2 Existing Furniture and Partitions. (a) Sub-subtenant shall have the right to use the
existing office furniture located on the Premises, including all conference room furniture, and
furniture systems and partitions (collectively, the “Furniture”), during the term of this
Sub-sublease at no additional cost to Sub-subtenant. Sub-subtenant shall be solely responsible
for all costs associated with the maintenance, repair, modification and relocation of the
Furniture located on or brought onto the Premises. At the end of the Sub-sublease Term, all
items included herein shall become the sole property of Sub-subtenant. On the Expiration Date,
Sub-sublandlord shall transfer all of its right, title and interest in the Furniture, free and
clear of all liens and encumbrances, to Sub-subtenant under the ▇▇▇▇ of Sale attached hereto as
Exhibit D. An inventory of the Furniture, agreed to by the parties hereto, as of the Execution
Date is attached hereto as Schedule 8.2.
(b) Upon Sub-subtenant’s request, submitted to Sub-sublandlord within fifteen (15) days
after the expiration of the Final Termination Right, Sub-sublandlord shall give to Sub-subtenant
a date on which Sub-sublandlord shall reset, reconnect and electrify all or a portion of the
cubicle partitions on both the fourth (4th) and fifth (5th) floors of the
Building, in the same configuration as existed during Sub-sublandlord’s occupancy of such
floors. Alternatively, at Sub-subtenant’s option, Sub-sublandlord and Sub-subtenant shall
estimate and agree to the cost of resetting, reconnecting and electrifying all or a portion of
the cubicle partitions and Sub-sublandlord shall pay the costs for the same to Sub-subtenant.
8.3 Voice and Data Systems. Sub-subtenant shall have the right to use the existing voice
and data network wiring installed on the Premises at no cost to Sub-subtenant. Prior to the
Targeted Delivery Date, Sub-sublandlord shall remove the complete phone system, including all
handsets, phone sets, switches and voice mail, from the Premises.
8.4 Removal of Sub-sublandlord’s Signage. Sub-sublandlord, at its sole cost and expense,
shall remove all personal signage on the Premises within five (5) business days after
Sub-sublandlord has provided Sub-subtenant the date on which the last portion of the Premises is
ready for occupancy by Sub-subtenant and after the Commencement Date.
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9. SUBLEASING COVENANTS.
9.1 Incorporation of Sublease. The Sublease is hereby incorporated by reference into this
Sub-sublease, except to the extent the Sublease is inconsistent with the express terms of this
Sub-sublease, and, as incorporated, becomes an agreement between Sub-sublandlord and
Sub-subtenant. Wherever this Sub-sublease conflicts with an incorporated term of the Sublease,
this Sub-sublease shall govern, but wherever reasonably possible, such a conflict shall be
resolved by making Sub-subtenant’s obligations under both documents coterminous and exactly the
same. Notwithstanding the early termination of the Sublease or the Master Lease for any reason
whatsoever, the parties hereto shall be bound by the provisions of the Sublease incorporated
herein by this Subsection 9.1. Notwithstanding the foregoing, Sub-subtenant shall not be
subject to, or have any obligations under Sections 7 (“Broker”) and 12 (“Letter of Credit”) of
the Sublease.
9.2 Defined Terms. Except as otherwise provided in Subsection 9.1 above, each reference to
“Sublessor” in the Sublease shall be deemed replaced by a reference to “Sub-sublandlord.”
Except as otherwise provided in Subsection 9.1 above, each reference to “Sublessee” in the
Sublease shall be deemed replaced by a reference to “Sub-subtenant.” Each reference to the
Sublease shall be deemed, where appropriate, to refer to this Sub-sublease. All other defined
terms shall be deemed appropriately modified to reflect the circumstances of this Sub-sublease.
9.3 Compliance with Sublease. Subject to the exclusions set out in Subsection 9.1 above,
Sub-subtenant agrees to be bound by and to fully comply with all obligations of Sub-sublandlord
as subtenant under the Sublease, except to the extent that this Sub-sublease expressly requires
Sub-sublandlord to perform any obligations of subtenant under the Sublease.
9.4 Indemnity.
(a) Indemnification by Sub-sublandlord. Sub-sublandlord shall indemnify defend
and hold Sub-subtenant harmless from and against any and all claims resulting from
Sub-sublandlord default under this Sub-sublease, the Master Lease, the Sublease or any negligent
acts or omissions or willful misconduct of Sub-sublandlord or by any officer, director,
employee, agent, contractor or authorized representative of Sub-sublandlord.
(b) Indemnification by Sub-subtenant. Sub-subtenant shall indemnify defend and
hold Sub-sublandlord harmless from and against any and all claims resulting from Sub-subtenant’s
default under this Sub-sublease, the Master Lease, the Sublease or any negligent acts or
omissions or willful misconduct of Sub-subtenant or by any officer, director, employee, agent,
contractor or authorized representative of Sub-subtenant.
9.5 Rights and Benefits Under Sublease. Sub-subtenant shall have all the rights,
privileges and benefits granted to or conferred upon Sub-sublandlord as subtenant under the
Sublease, provided that Sub-subtenant’s exercise of such rights, privileges and benefits
shall not cause Sub-sublandlord to be in default under the Sublease.
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9.6 Performance by Master Landlord, Sublandlord and Sub-sublandlord.
9.6.1 No Sub-sublandlord Obligation. Whenever the Sublease requires Sublandlord to provide
any benefit or service and/or where the Master Lease requires the Master Landlord to provide any
such benefit or service, Sub-subtenant shall be entitled to receive such benefit or service
directly from Sublandlord under the Sublease and (if applicable) from Master Landlord under the
Master Lease. Sub-sublandlord, subject to the obligations as set forth in this Sub-sublease,
shall have no liability to Sub-subtenant, and Sub-subtenant’s obligations under this
Sub-sublease shall not be reduced, restricted, diminished or deferred, on account of
Sub-sublandlord’s failure to provide any service or benefit under the Sublease or Master Lease,
or failure to perform any obligation under the Sublease or Master Lease, unless such failure is
caused by Sub-sublandlord’s default under an obligation under this Sub-sublease.
9.7 Enforcement by Sub-subtenant. If Sublandlord shall fail or refuse to comply with any
of the terms of the Sublease, or if Master Landlord shall fail or refuse to comply with any of
the terms of the Master Lease, Sub-subtenant shall have the right, upon notice to
Sub-sublandlord and so long as Sub-subtenant shall not be in default under this Sub-sublease (in
the case of non-monetary defaults, beyond applicable cure periods), to exercise, in its own
name, and that of Sub-sublandlord, all the rights available to Sub-sublandlord as subtenant
under the Sublease to enforce performance on the part of Sublandlord thereunder, and to
exercise, in its own name, and that of Sublandlord, all the rights available to Sublandlord as
tenant under the Master Lease to enforce performance on the part of Master Landlord thereunder.
9.8 Preservation of Sublease. So long as Sub-subtenant is not in default: (i)
Sub-sublandlord shall preserve the Sublease and keep the Sublease in full force and effect
throughout the Sub-sublease Term; (ii) Sub-sublandlord shall not agree to any amendment to the
Sublease; (iii) Sub-sublandlord shall not, without Sub-subtenant’s written consent, exercise any
right to terminate the Sublease (including any right to treat the Sublease as terminated on
account of casualty or condemnation or pursuant to any bankruptcy or insolvency proceeding
affecting Sub-Sublandlord) with respect to any period within the Sub-sublease Term; and (iv)
Sub-sublandlord shall perform all its obligations under the Sublease not assumed by
Sub-subtenant hereunder during the Sub-sublease Term. Prior to entering into any amendment of
the Sublease, Sub-sublandlord shall promptly provide Sub-subtenant with a copy thereof. If the
amendment is an amendment permitted under this Sub-sublease, and Sub-sublandlord enters into
such amendment with Sub-subtenant’s consent, the definition of “Sublease” shall be deemed
modified to reflect such amendment. Sub-sublandlord shall not agree to any amendment to or
modification of the Master Lease, or to any termination of the Master Lease, without
Sub-subtenant’s prior written consent.
9.9 Approvals. Whenever the Master Lease requires Master Landlord’s approval of or consent
to any matter, Sub-subtenant shall obtain Master Landlord’s approval or consent to such matter.
Whenever the Sublease requires Sublandlord’s approval of or consent to any matter, Sub-subtenant
shall obtain Sublandlord’s approval of or consent to such matter. Notwithstanding the foregoing
the consent or approval of the Master Landlord or Sublandlord under the Master Lease or Sublease
to any matter requiring their respective approvals shall for purposes of this Sub-sublease shall
also constitute the approval or consent of the Sub-sublandlord.
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9.10 Notices to or From Master Landlord or Sublandlord. Sub-sublandlord and Sub-subtenant
shall immediately provide the other with a copy of any notice or other written communication of
any kind given to or received from Master Landlord or Sublandlord. Sub-sublandlord and
Sub-subtenant shall immediately provide Sublandlord with a copy of any notice or other written
communication of any kind given to or received from Master Landlord or Sublandlord.
9.11 Representations and Warranties. Sub-sublandlord represents and warrants that the
Sublease is the entire agreement between Sublandlord and Sub-sublandlord relating to Premises
and is in full force and effect, and neither Sublandlord nor Sub-sublandlord is in default
beyond any applicable cure periods under the Sublease.
10. INTERACTION OF ESTATES.
10.1 Priorities. This Sub-sublease is subject and subordinate to the Master Lease and
Sublease, as amended from time to time in compliance with this Sub-sublease. Notwithstanding
anything to the contrary in the Master Lease or Sublease, Sub-sublandlord shall not have the
right to encumber its leasehold estate during the Sub-sublease Term.
10.2 No Effect on Master Lease. Notwithstanding anything to the contrary in this
Sub-sublease, the terms and conditions of the Master Lease remain in full force and effect
between Master Landlord and Sublandlord.
11. LEASING COVENANTS.
11.1 Tenant Improvements. Subject to the provisions of Section 8 above, Sub-subtenant
shall take the Premises in its “AS IS” condition. Sub-subtenant shall have the right to install
additional tenant improvements, subject to Master Landlord’s, Sublandlord’s and
Sub-sublandlord’s approval, not to be unreasonably withheld or delayed. Sub-subtenant shall
have the right to design and construct Sub-subtenant’s tenant improvement work to the Premises,
with all such design and construction plans, as well as Sub-subtenant’s selection of a general
contractor, to be subject to the approval of Master Landlord, Sublandlord and Sub-sublandlord,
not to be unreasonably withheld or delayed. Upon Sub-sublandlord’s delivery of any of the
Premises to Sub-subtenant, Sub-subtenant shall have the right to commence such tenant
improvement work to the Premises previously approved by Master Landlord, Sublandlord and
Sub-sublandlord.
11.2 Signage. Subject to compliance with all applicable statutes, codes, ordinances,
regulations and other laws, Sub-sublandlord shall approve and cooperate with Sub-subtenant in
Sub-subtenant’s efforts to put its name and logo on the externally visible façade of the
Premises at two (2) different locations, as well as install, at Sub-subtenant’s sole cost and
expense, a monument berm sign on the corner of Tasman Drive and Great America Parkway in the
City of Santa Clara, California. Sub-subtenant’s signage placement and installation is subject
to the reasonable approval of Master Landlord and Sublandlord, not to be unreasonably withheld
or delayed, and all their respective compliance with applicable statutes, codes, ordinances,
regulations and other laws.
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11.3 Quiet Enjoyment. So long as Sub-subtenant pays all rental fees in accordance with the
payment schedule reflected in Section 7 above, performs its obligations under this Sub-sublease
(including the Sublease as incorporated by reference), and is not otherwise in default in any
material respect under this Sub-sublease (beyond any applicable cure periods), Sub-sublandlord
shall take no action which would interfere with the right of Sub-subtenant to peaceably have,
hold and enjoy the Premises during the Sub-sublease Term, subject to the terms of this
Sub-sublease.
11.4 Default; Remedies. Notwithstanding anything to the contrary in this Sub-sublease, if
Sub-subtenant defaults in performance of any obligation under this Sub-sublease (including the
Sublease as incorporated by reference), then Sub-subtenant shall remedy such default within the
applicable cure period (if any) provided for in the Sublease, which period shall automatically
commence to run against Sub-subtenant at the same time it commences to run against
Sub-sublandlord, provided that Sub-sublandlord immediately provides Sub-subtenant with a
copy of Master Landlord’s or Sublandlord’s notice of default, if Master Landlord or Sublandlord
has not already done so. If Sub-subtenant fails to perform its obligations or timely cure any
of its defaults under this Sub-sublease (including the Sublease as incorporated by reference),
then Sub-sublandlord shall be entitled to exercise against Sub-subtenant all remedies provided
for in the Sublease (as incorporated by reference) with respect to Sub-sublandlord’s default
under the Sublease, and any other remedies available at law or in equity.
12. MISCELLANEOUS.
12.1 Attorneys’ Fees. If this Sub-sublease is the subject of any mediation, arbitration or
litigation (such as to enforce an indemnity herein), then the prevailing party shall be entitled
to recover all costs incurred, including reasonable attorneys’ fees at all levels of judicial
proceedings.
12.2 Governing Law; Venue. This Sub-sublease shall be governed by, and construed in
accordance with, the laws of the State of California. The venue for any disputes concerning
this Sub-sublease shall be in Santa Clara, California.
12.3 Force Majeure. Whenever performance is required of a party hereunder, that party
shall use all due diligence and take all necessary good faith measures to perform, but if
completion of performance is delayed by reasons of floods, earthquakes or other acts of God,
war, civil commotion, riots, strikes, picketing, or other labor disputes, damage to work in
progress by casualty, or by other cause beyond the reasonable control of the performing party
and occurring without such party’s fault or negligence, including acts within the exclusive
control of Sublandlord, Master Landlord, and/or any other third parties, then the specified time
for performance shall be extended by the period of time equal to the period of the delay
actually so caused.
12.4 Notices. All notices under this Sub-sublease shall be given, and shall become
effective, in accordance with the notice provisions of the Master Lease. Any notice to the
parties herein shall be given to the following addresses (subject to change by notice):
10
If to Sub-subtenant:
|
Citrix Systems, Inc. | |
| ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ | ||
| ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ | ||
| Attn: Facilities Department | ||
| cc: Legal Department | ||
With a copy to:
|
Citrix Systems, Inc | |
| ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ | ||
| ▇▇▇▇▇ ▇▇▇ | ||
| ▇▇▇ ▇▇▇▇, ▇▇ | ||
| Attn: Facilities Department | ||
| With a copy to (following commencement date): | ||
| Citrix Systems, Inc | ||
| ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | ||
| ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | ||
| Attn: Facilities Department | ||
| cc: Legal Department | ||
If to Sub-sublandlord (Terayon):
|
Terayon Communication Systems | |
| ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | ||
| ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | ||
| Attn: Facilities Department | ||
| cc: Legal Department | ||
With a copy to:
|
▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq. | |
| ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP | ||
| ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ | ||
| ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | ||
| Fax: (▇▇▇) ▇▇▇-▇▇▇▇ | ||
If to Sublandlord:
|
Hewlett-Packard Company | |
| ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ | ||
| ▇▇ 1001 | ||
| ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ | ||
| Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | ||
With a copy to:
|
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | |
| ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ | ||
| ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ | ||
| ▇▇▇▇▇ ▇▇▇ | ||
| ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | ||
If to Master Landlord:
|
Sobrato Development Companies #961 | |
| ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇ | ||
| ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | ||
| Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | ||
11
12.5 Further Assurances. Each party shall execute and deliver such further documents, and
perform such further acts, as may be reasonably necessary to achieve the intent of the parties
as expressed in this Sub-sublease.
12.6 Time. Time is of the essence in the performance of the parties’ respective
obligations under this Sub-sublease.
12.7 Interpretation. This Sub-sublease shall not be construed against whichever party was
the “drafter” of this Sub-sublease.
12.8 Execution. This Sub-sublease shall not be effective in any way (or create any
obligations of any kind) unless and until it has been executed and delivered by both parties.
This Sub-sublease may be executed in counterparts, each of which is deemed an original and all
of which together are considered one and the same agreement.
12.9 Background; Exhibits and Schedules; Integration; etc. Section 1 (Background) of this
Sub-sublease, along with the Exhibits and Schedules attached hereto, are hereby made a part
hereof. This Sub-sublease contains the entire agreement between the parties, with the single
exception of that certain letter, dated June 20, 2006, by and between Sub-sublandlord and
Sub-subtenant, with regard to the subsubletting of the Premises and may not be changed orally.
This Sub-sublease shall bind the parties’ permitted successors and assigns. If Sub-sublandlord
assigns the Sublease, then Sub-sublandlord shall simultaneously assign this Sub-sublease to the
same assignee and require such assignee to assume Sub-sublandlord’s obligations under this
Sub-sublease and such assignment and assumption shall relieve and release Sub-sublandlord from
all of its obligations under this Sub-sublease.
12.10 Request for Notices. Sub-sublandlord shall request that Master Landlord and
Sublandlord simultaneously deliver to Sub-subtenant a copy of any notice(s) given by Master
Landlord to Sublandlord relating to the Master Lease or given by Sublandlord to Sub-sublandlord
relating to the Sublease.
12.11 Financial Information. Upon Sub-sublandlord’s reasonable request, Sub-subtenant
shall provide to Master Landlord or Sublandlord such financial information as Master Landlord or
Sublandlord (as the case may be) shall reasonably request. Sub-sublandlord shall hold, and
shall obtain (prior to Master Landlord’s or Sublandlord’s (as the case may be) obtaining such
financial information) Master Landlord’s or Sublandlord’s (as the case may be) written agreement
to hold, all such financial information in confidence.
12.12 Memorandum of Sub-sublease. On the Execution Date, the parties shall execute and
acknowledge the Memorandum of Sub-sublease, attached hereto as Exhibit E, which Sub-sublandlord
or Sub-subtenant shall have the right to record with the Recorder’s office of the County of
Santa ▇▇▇▇▇.
12
13. BROKER. Sub-Sublandlord and Sub-subtenant each represent to the other that they have dealt
with no real estate brokers other than Cornish & ▇▇▇▇▇ (representing Sub-Sublandlord) and Colliers
International (representing Sub-subtenant). Each party agrees to indemnify, defend, and hold the
other party harmless from and against all claims of brokerage commissions, finder’s fees or other
compensation made by any agent, broker, salesman or finder other than Cornish & ▇▇▇▇▇ and Colliers
International, as a consequence of said party’s actions or dealings with such other agent, broker,
salesman, or finder. Sub-sublandlord agrees to pay a full leasing commission to Colliers
International. Said fee is equal to six percent (6%) of the total base rent for a triple net (NNN)
lease transaction, and half (1/2) of said fee is to be paid by Sub-sublandlord within thirty (30)
days following the completion of: (i) the execution and delivery of this Sub-sublease by
Sub-sublandlord and Sub-subtenant; and (ii) the Conditions Precedent, as set out in Section 4
above, excluding Subsection 4.2 above, which is not within Sub-subtenant’s control, are completed
or waived by Sub-sublandlord and Sub-subtenant. The second (2nd) half (1/2) of the
broker’s fee shall be paid by Sub-sublandlord within thirty (30) days after the Commencement Date
letter agreement, substantially in the form of Exhibit C attached hereto, has been fully executed
by the parties thereto. Should Colliers International not be paid the commission by the
Sub-sublandlord within such time periods then the Sub-subtenant shall have the right to pay the
said amount of commission owed at that time to the procuring broker (Colliers International) only
and such payments can be deducted from any future rental payments from Sub-subtenant to
Sub-sublandlord.
IN WITNESS WHEREOF, Sub-sublandlord and Sub-subtenant have executed this Sub-sublease as of
the Execution Date.
| “SUB-SUBLANDLORD” | “SUB-SUBTENANT” | |||||||
| TERAYON COMMUNICATION SYSTEMS, INC., a Delaware corporation | CITRIX SYSTEMS, INC., a Delaware corporation | |||||||
By:
|
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ | By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |||||
| ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | ||||||||
Its:
|
CEO | Its: | Chief Financial Office | |||||
(SUBLANDLORD CONSENT ON FOLLOWING PAGE)
13
SUBLANDLORD CONSENT
The sub-subletting on the terms and conditions of the preceding Sub-sublease, dated as of June ___,
2006, between Sub-sublandlord and Sub-subtenant, and the TI Plans (as defined in the Sub-sublease)
are hereby consented to and approved by Sublandlord. Further, as described in Subsection 4.6 of
the Sub-sublease, Sublandlord agrees that if Sub-sublandlord defaults causing the Sublease to
terminate, Sublandlord will accept Sub-subtenant’s attornment and honor the Sub-sublease, unless
Sub-subtenant is in breach of the Sub-sublease. Further, as described in Subsection 7.1 of the
Sub-sublease, Sublandlord agrees to send its monthly invoices for Base Rent under the Sublease to
each of Sub-sublandlord and Sub-subtenant at the addresses under Subsection 12.4 (Notices) of the
Sub-sublease showing their respective share of the rent then due, and, as described in Subsection
7.3 of the Sub-sublease, Sublandlord agrees to send its monthly invoice for Additional Rent
directly to Sub-subtenant. Additionally, Sublandlord hereby confirms that neither Sub-sublandlord
nor Sublandlord are, as of the date of this Landlord Consent, in default of their respective
obligations under the Sublease.
SUBLANDLORD:
HEWLETT-PACKARD COMPANY, a Delaware corporation
(successor-in-interest to VeriFone, Inc., a California corporation)
(successor-in-interest to VeriFone, Inc., a California corporation)
By:
Name:
Title:
Name:
Title:
14
July 20, 2006
Citrix Systems, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇
Re: Triple Net Sub-Sublease, dated as of June 27, 2006
Ladies/Gentlemen:
Terayon Communication Systems, Inc., as sub-sublandlord (“Sub-sublandlord”), and
Citrix Systems, Inc., as sub-subtenant (“Sub-subtenant”), have entered into a Triple Net
Sub-Sublease, dated as of June 27, 2006 (the “Sub-sublease”).
Notwithstanding that the Sub-sublease has by its terms terminated pursuant to Section 4
thereof by reason of the failure of certain conditions precedent specified in Section 4 to occur by
June 30, 2006, the parties hereto reaffirm the effectiveness of the Sub-sublease and now intend to
extend the date by which certain conditions precedent must occur and to make certain other
amendments to the Sub-sublease, as provided in this letter agreement, which shall constitute an
amendment to the Sub-sublease. Unless otherwise defined herein, capitalized terms used in this
agreement have their respective meanings set forth in the Sub-sublease. Therefore, for good and
valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties
hereto hereby agree as follows:
1. Section 4. The first paragraph in Section 4 of the Sub-sublease is hereby deleted
in its entirety and replaced by the following:
“4. CONDITIONS PRECEDENT TO EFFECTIVE SUB-SUBLEASE COMMENCEMENT DATE. Notwithstanding the
Sub-sublandlord’s and Sub-subtenant’s full execution of this Sub-sublease, the Sub-sublease Term
shall not commence unless all of the following eight (8) conditions precedent (the “Conditions
Precedent”) have occurred on or before June 23, 2006 (the “Conditions Precedent Satisfaction
Date”). If any of the Conditions Precedent fail to occur by the Conditions Precedent Satisfaction
Date (subject to force majeure as set forth in Subsection 12.3 below), the Targeted Delivery Date
shall be extended one business day for each business day of delay in the occurrence of all the
Conditions Precedent. If any of the Conditions Precedent fail to occur by July 31, 2006, this
Sub-sublease shall terminate, which termination shall render all terms and conditions hereunder
null and void, unless: (1) the Sub-sublandlord and Sub-subtenant mutually agree in writing to
extend such date, or (2) on July 31, 2006, Sub-subtenant waives one or more of the unsatisfied
Conditions Precedent by giving Sub-sublandlord written notice thereof.”
2. Subsection 4.3. Subsection 4.3 of the Sub-sublease is hereby deleted in its
entirety and replaced by the following new Subsection 4.3:
“4.3 Landlord Consents. Sub-sublandlord shall obtain a written consent to this
Sub-sublease from the Master Landlord (the “Master Landlord Consent”) and from the
Sublandlord (the “Sublandlord Consent,” together with the Master Landlord Consent, the
“Landlord Consents”) in forms acceptable to Sub-subtenant, in the exercise of its reasonable
discretion. Each of the Landlord Consents shall include their respective approvals of the
TI Plans, pursuant to Subsection 4.4 below. The Sublandlord also shall agree in writing not
to exercise any option to extend or terminate the Master Lease or to purchase the Premises
(including pursuant to Sections 37 and 44 of the Master Lease) without the prior written
consent of Sub-subtenant.”
3. Subsection 4.5. The last sentence of Subsection 4.5 of the Sub-Sublease is hereby deleted
in its entirety and replaced by the following new sentences:
“Sub-subtenant shall receive written confirmation from each of the Master Landlord and
the Sublandlord that the Sub-subtenant has no restoration obligations with respect to any
improvements or alterations installed prior to the Commencement Date. Sub-sublandlord
hereby confirms and agrees that the Sub-subtenant has not assumed pursuant to this
Sub-sublease or otherwise any restoration obligations of Sub-sublandlord.”
4. Subsection 4.6. Subsection 4.6 of the Sub-Sublease is hereby deleted in its entirety and
replaced by the following new Subsection 4.6:
“4.6 Sublandlord’s Acceptance of Sub-subtenant’s Attornment. Sub-subtenant shall
receive a nondisturbance and attornment agreement from the Sublandlord in a form acceptable
to Sub-subtenant, in its reasonable discretion, to the effect that if any default by
Sub-sublandlord under the Sublease causes the Sublease to terminate, Sublandlord will accept
Sub-subtenant’s attornment and honor the Sub-subtenant’s occupancy of the Premises for the
balance of the Sub-sublease term on the rent terms contained in this Sub-sublease, but
otherwise on the terms set forth in the Sublease (unless Sub-subtenant is in breach of this
Sub-sublease).”
5. Subsection 4.7. Subsection 4.7 of the Sub-sublease is hereby deleted in its entirety and
replaced by the following new Subsection 4.7:
“4.7 Master Landlord’s Acceptance of Sub-subtenant’s Attornment. Sub-subtenant shall
receive a nondisturbance and attornment agreement from the Master Landlord in a form
acceptable to Sub-subtenant, in its reasonable discretion, to the effect that if any default
by Sublandlord under the Master Lease causes the Sublease or this Sub-sublease to terminate,
Master Landlord will accept Sub-subtenant’s attornment and honor this Sub-sublease, and the
rent terms contained herein, for the balance of the Sub-sublease term (unless Sub-subtenant
is in breach of this Sub-sublease).”
6. Section 6. The reference to “Targeted Delivery Date” in the first sentence
of Section 6 of the Sub-sublease is hereby deleted and replaced by a reference to the
“Commencement Date”.
7. Subsection 7.1. Subsection 7.1 of the Sub-sublease is hereby deleted in its entirety and
replaced by the following new Subsection 7.1:
“7.1 Payment; Proration, etc. Except for the first month’s Base Rent which shall be
paid by Sub-subtenant in accordance with Subsection 7.2 below:
(a) Sub-sublandlord shall continue to send full payment of all Base Rent or Base
Monthly Rent (as such terms are defined in the Sublease) (hereinafter “Base Rent”) due
directly to Sublandlord in accordance with the payment schedule under Section 3.1 of the
Sublease on the first day of each and every month of the Sub-sublease Term for the Premises,
and
(b) Sub-subtenant shall wire payment directly to Sub-sublandlord to an account
designated in writing by Sub-sublandlord, at least five (5) business days prior to the first
day of each month of the Sub-sublease Term, Sub-subtenant’s portion of the Base Rent in
accordance with the following schedule:
| Duration | Price/SF/Month/NNN | |
From Early Occupancy Date to the Commencement Date |
$0 (no Base Rent) | |
Months 1-12 following the Commencement Date |
$1.25 | |
Months 13-24 |
$1.2875 | |
Months 25 – Expiration Date |
$1.33 |
Fixed rent for partial months at the beginning or end of the Sub-sublease Term shall be prorated
based on the number of days in such month within the Sub-sublease Term divided by thirty (30).”
8. Subsection 7.3. Subsection 7.3 of the Sub-sublease is hereby deleted in its entirety and
replaced by the following new Subsection 7.3:
“7.3 Additional Rent. During the Sub-sublease Term and pursuant to Section 6 above,
Sub-subtenant shall wire payment directly to Sub-sublandlord to an account designated in
writing by Sub-sublandlord, at least five (5) business days prior to the date Additional
Rent (as defined in this Section 7.3) is due from Sub-sublandlord to Sublandlord (in
accordance with Section 3.3 of the Sublease) an amount equal to all payments of Additional
Rent required to be made by Sub-sublandlord to Sublandlord pursuant to the Sublease,
including without limitation operating costs and Maintenance (as defined in Section 6.1 of
the Sublease) costs (collectively, “Additional Rent”). Additional Rent for any partial
month shall be prorated as set forth in Subsection 7.1 above.”
9. Subsection 8.2(b). The following sentence is added to the end of Subsection 8.2(b) of the
Sub-sublease:
“Sub-sublandlord and Sub-subtenant agree that such cost is equal to Nine Thousand Two
Hundred Forty and No/100 Dollars ($9,240) and Sub-sublandlord agrees to pay such amount to
Sub-subtenant thirty (30) days after the expiration of the Final Termination Right.”
10. New Section 10.3. The following new Subsection 10.3 is hereby added immediately after
Subsection 10.2 of the Sub-sublease:
“10.3 No Effect on Sublease. Notwithstanding anything to the contrary in this
Sub-sublease, the terms and conditions of the Sublease remain in full force and effect
between Sublandlord and Sub-sublandlord.”
11. Subsection 12.12. Subsection 12.12 and Exhibit E are hereby deleted in their entireties.
12. Sublandlord Consent. The form of Sublandlord Consent attached to the Sub-sublease is
hereby deleted.
[Remainder of page intentionally left blank.]
This agreement shall be governed by and construed in accordance with the laws of the State of
California. This agreement may be signed in any number of counterparts, each of which will
constitute an original, and all of which, taken together, shall constitute but one and the same
agreement with the same effect as if the signatures thereon were upon the same instrument. Except
as expressly modified by this agreement, the Sub-sublease shall remain unmodified and in full force
and effect.
Please indicate Sub-subtenant’s acceptance of and agreement to all of the provisions of this
agreement by having an authorized officer or officers of Sub-subtenant execute this agreement where
indicated below no later than 5:00 p.m. (PDT) on July 24, 2006. Failure by Sub-subtenant to
execute and deliver this agreement to Sub-sublandlord by such time and date shall render this
letter null and void and of no force and effect whatsoever, and the Sub-sublease shall remain
terminated as of June 30, 2006.
| Sincerely, | ||||||
| TERAYON COMMUNICATION SYSTEMS, INC., a Delaware corporation | ||||||
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ | |||||
| Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇ | ||||||
| Title: CEO | ||||||
| Accepted and agreed: | ||||
| CITRIX SYSTEMS, INC., | ||||
By:
|
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | ||||
| Title: CFO | ||||
Date: 7/21/2006
August 9, 2006
Citrix Systems, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇
Director, America Real Estate & Facilities
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇
Director, America Real Estate & Facilities
Re: Triple Net Sub-Sublease, dated as of June 27, 2006
Ladies/Gentlemen:
This letter will confirm that Terayon Communication Systems, Inc., as sub-sublandlord
(“Sub-sublandlord”), and Citrix Systems, Inc., as sub-subtenant (“Sub-subtenant”),
have agreed to extend the termination date of July 31, 2006 set forth in Section 4 of the Triple
Net Sub-Sublease, dated as of June 27, 2006, as amended, to August 15, 2006. In addition,
Sub-sublandlord hereby consents to the TI Plans of Citrix referred to in said Sub-sublease.
Please indicate Sub-subtenant’s receipt of and agreement to the foregoing by having an
authorized officer of Sub-subtenant execute this letter where indicated below.
| Sincerely, | ||||||
| TERAYON COMMUNICATION SYSTEMS, INC., a Delaware corporation | ||||||
| By: | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ | |||||
| Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇ | ||||||
| Title: Vice President of Operations | ||||||
| 8/9/06 | ||||||
| Accepted and agreed: | ||||
| CITRIX SYSTEMS, INC. | ||||
By:
|
/s/ ▇▇▇ ▇▇▇▇▇▇ | |||
Name:
|
▇▇▇ ▇▇▇▇▇▇ | |||
Title:
|
Director, Americas Real Estate & Facilities | |||
Date:
|
August 9, 2006 | |||