EXHIBIT 10.11
SUBLEASE AGREEMENT
I.
DEFINED TERMS
Base Rent
Monthly: $ 28,432.50
Annually: $341,190.00
Broker:
Sublessor: ▇▇▇▇▇ ▇▇▇▇▇▇
Sublessee: Cornish & ▇▇▇▇▇ Commercial
Building: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇; Sunnyvale, California
Effective Date: February 16, 1995
Expiration Date: August 31, 1997
Landlord: Oakmead Investments, a general partnership
Master Lease: That certain Net Lease Agreement between Landlord and
Sublessor dated November 7, 1983, as amended by that
certain First Amendment to Lease dated April 1, 1992
(the "First Amendment")
Permitted Uses: General office, research and development, storage and
distribution of electronic components
Premises: Improved real property as more particularly described in
the Master Lease, attached hereto as EXHIBIT A,
consisting of approximately 59,885 rentable square feet.
Rent
Commencement Date: March 1, 1995
Security
Deposit: 18.955
Sublessee: NVIDIA CORPORATION
Sublessee's
Address: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Sublessor: ▇▇▇▇▇▇ CORPORATION, a Delaware corporation
1.
Sublessor's
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Mail Stop 110
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Director, Corporate Real Estate
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Sublet Space: That portion of the Premises, as more particularly
described in the Sublet Space Floor Plan, attached
hereto as EXHIBIT B, consisting of approximately 29,100
rentable square feet, but by agreement, charged as
27,875 rentable square feet for the purpose of
determining the Base Rent.
Term: Thirty (30) months, subject to extension pursuant to
the terms of Section 1.2 of this Sublease
Exhibits: Exhibit A Master Lease
Exhibit B Sublet Space Floor Plan
Exhibit C Tenant Improvements
II.
This SUBLEASE AGREEMENT ("Sublease") is entered as of the Effective Date by
and between Sublessor and Sublessee.
The parties enter this Sublease on the basis of the following facts,
understandings and intentions:
A. Sublessor is presently a lessee of the Premises in the Building
pursuant to the Master Lease by and between Landlord and Sublessor. A copy of
the Master Lease with all exhibits and addenda thereto is attached hereto as
EXHIBIT A.
B. Sublessor desires to sublease the Sublet Space to Sublessee and
Sublessee desires to sublease the Sublet Space from Sublessor on all of the
terms, covenants and conditions hereinafter set forth.
C. All of the terms and definitions in the Defined Terms section are
incorporated herein by this reference.
NOW, THEREFORE, in consideration of the mutual covenants and promises of
the parties, the parties hereto agree as follows:
1. SUBLEASE. Sublessor shall sublease to Sublessee, and Sublessee shall
sublease from Sublessor, the Sublet Space for the Term upon all of the terms,
covenants and conditions herein contained. In addition, Sublessor shall lease to
Sublessee, and Sublessee shall lease from Sublessor, any and all permanent
improvements ("Improvements") on the Sublet Space constructed as well as all
such Improvements constructed by or for Sublessee and/or owned by
2.
Sublessor, upon all of the terms, covenants and conditions herein contained. As
used herein, "Sublet Space" shall include the Sublet Space and the Improvements.
1.1 EARLY OCCUPANCY. Notwithstanding anything to the contrary in this
Sublease, Sublessee and Sublessee's employees, agents, contractors and suppliers
shall have the right at any time after February 20, 1995 (the "Early Occupancy
Date") to enter the Premises, at their sole risk, solely to install Sublessee's
furniture, trade fixtures, communications equipment and other equipment therein;
provided, however, that (i) Sublessee's early entry shall not unreasonably
interfere with any of Sublessor's activities on the Premises during such period;
(ii) such entry on the Premises shall be on all of the terms of this Sublease,
except that Sublessee shall not be required to pay any Base Rent hereunder
during any period of early entry; (iii) during such period of early occupancy,
Sublessee shall be liable for utility and trash collection which exceed
Sublessor's "moth ball" rate; and (iv) Sublessee shall provide Sublessor before
such entry with certificates of the insurance required of Sublessee pursuant to
the terms of this Sublease.
1.2 RENEWAL TERM. Provided (i) Sublessee is not in default under the terms
of this Sublease for more than five (5) days after Sublessor's delivery of
written notice thereof to Sublessee at the time this renewal is exercised or at
the commencement of the Renewal Term (as defined below), (ii) Sublessee is
occupying at least ninety percent (90%) of the Sublet Space, including any
Available Space, (iii) Sublessor has not given more than two (2) notices of
default in any twelve (12) month period for nonpayment of monetary obligations,
(iv) the Master Lease is then in full force and effect, and (v) Sublessee's
then-existing financial condition is at least as favorable as Sublessee's
financial condition as of the Commencement Date, in Sublessor's sole discretion,
Sublessee shall have the option to renew this Sublease for either (and not both)
(A) one (1) period of one (1) year, or (B) a term equal to the remaining portion
of the term of the Master Lease (either, a "Renewal Term"). The Renewal Term
shall be on all the terms and conditions of this Sublease, except that (a) Base
Rent for the Renewal Term shall be ninety-five percent (95%) of the then-
existing Market Rent (as defined below), and (b) after Sublessee's exercise of
the Renewal Term, Sublessee shall have no further rights to any renewal of the
Term of this Sublease. Sublessee must exercise its option to renew this Sublease
by giving Sublessor written notice (an "Extension Notice") of its election to do
so no later than one hundred twenty (120) days prior to the end of the initial
Term. Any notice not given in a timely manner shall be void; and Sublessee shall
be deemed to have waived its renewal rights. The Renewal Term set forth herein
is personal to Sublessee and any Affiliate thereof and shall not be included in
any assignment of this Sublease.
1.2.1 MARKET RENT. The term "Market Rent" shall mean the monthly
amount per rentable square foot in the Sublet Space that a willing, non-equity,
non-renewal, non-expansion new tenant would pay and a willing landlord would
accept at arm's length for space in a comparable building or buildings, with
comparable tenant improvements (provided that the value of any tenant
improvements installed in the Sublet Space at Sublessee's sole expense shall not
be included as a factor in determining the Market Rent), in a comparable
location, giving appropriate consideration to monthly rental rates per rentable
square foot, the presence or absence of rent escalation clauses such as
operating expense and tax pass-throughs, length of lease term, size and location
of premises being leased, if any, and other generally applicable terms and
conditions of tenancy for a similar building or buildings.
3.
No earlier than sixty (60) and no later than thirty (30) days prior to the
Expiration Date, Sublessor and Sublessee, upon notice from Sublessor, shall have
a period of thirty (30) days in which to agree on the Market Rent. If they agree
within that period, they shall immediately execute an amendment to this Lease
stating the Base Monthly Rent for such period.
If Sublessor and Sublessee are unable to agree upon the Market Rent within
such thirty (30) day period, then the dispute shall proceed to arbitration
conducted pursuant to the provisions of the laws of the state in which the
Premises is located and the Real Estate Arbitration Rules of the American
Arbitration Association or its successor insofar as said rules do not conflict
with said laws or this section. Within ten (10) days of the expiration of the
aforesaid thirty (30) day period, Sublessor and Sublessee shall select one joint
arbitrator or, if they cannot agree on one joint arbitrator, then each shall
select an arbitrator within fifteen (15) days of the expiration of the aforesaid
thirty (30) day period and notify the other party of its selection. The two
arbitrators selected shall designate the third arbitrator forthwith. Each
arbitrator selected shall be a real estate appraiser with an MAI certification
or a real estate broker, with at least five (5) years of experience appraising
or leasing building space comparable to the Premises in the city and county
where the Premises is located. The arbitrators shall convene in the city or
county in which the Premises are located as soon as practicable and offer
Sublessor and Sublessee the opportunity to present their cases. If any party
fails to appear more than once to participate or produce evidence in an
arbitration proceeding, the arbitrators may make their decision based solely on
the evidence actually presented. The arbitrators shall, by majority vote, make
their determinations of Market Rent based on the factors referenced above; and
such decision shall be binding upon Sublessor and Sublessee and enforceable in a
court of law. Each party shall be responsible for the costs, charges and fees of
its appointee; and the parties shall share equally in the costs, charges and
fees of the third arbitrator. In the event either party fails to appoint an
arbitrator or the two arbitrators fail to select a third arbitrator within the
time required by this section, upon application of either party, the arbitrator
shall be appointed by the American Arbitration Association, or if there is no
American Arbitration Association or it shall refuse to perform this function,
then by the then Presiding Judge of the Superior Court and/or presiding trial
court of the state and county in which the Premises is located.
1.3 RIGHT OF FIRST NEGOTIATION.
1.3.1 RIGHT. If at any time during the initial Term of this Sublease
Sublessor decides to offer any remaining portion of the Premises (the "Available
Space") for sublease, then, prior to leasing such portion of the Premises to a
third party sublessee, Sublessor shall first provide Sublessee with a written
notice ("Sublease Notice") describing the terms, in Sublessor's sole discretion,
on which Sublessor would be willing to sublease the Available Space to
Sublessee. Sublessee shall have five (5) business days from delivery of the
Sublease Notice in which to inform Sublessor in writing (a "Response Notice") of
Sublessee's intention to sublease all, and not a portion, of the Available Space
from Sublessor on the terms described in the Sublease Notice or on other terms
proposed by Sublessee. If Sublessee shall fail to provide such Response Notice
within such five (5) business day period, or shall affirmatively provide
Sublessor with written evidence of Sublessee's intention not to sublease the
Available Space, then Sublessor shall be free to sublease the Available Space on
such terms as Sublessor shall deem appropriate, and Sublessee's rights hereunder
shall forever terminate.
4.
1.3.2 FIFTEEN DAY NEGOTIATION PERIOD. Is Sublessee shall have
provided Sublessor with a timely Response Notice, then Sublessor and Sublessee
shall have a period of fifteen (15) days from the date on which Sublessee
delivers the Response Notice in which to agree on terms by which Sublessor shall
sublease the Available Space to Sublessee; provided, however, that neither
Sublessor and Sublessee shall be required to agree to terms, and in so
negotiating, each party shall be free to negotiate terms as it deems best, in
its sole discretion. If Sublessor and Sublessee have not agreed in such fifteen
(15) day period on terms whereby Sublessee shall sublease such Available Space
from Sublessor, or if the parties hereto have not executed an amendment to this
Sublease confirming such obligations within thirty (30) days of the date on
which Sublessee delivers the Response Notice, then in either case Sublessor and
Sublessee's rights and obligations with respect to such Available Space shall
terminate with respect to the Available Space that is specified in such Sublease
Notice; provided, however, that nothing herein shall be deemed a waiver of
Sublessee's rights under this Section 1.3 with respect to (i) any other
Available Space in the Premises during the initial Term of this Sublease, or
(ii) the Available Space specified in the Sublease Notice, to the extent it is
offered for lease again during the initial Term of this Sublease.
1.3.3 REMEDIES. In the event that either party hereto fails to
perform its obligations under this Section 1.3, the other party's sole remedy
shall be to obtain the equitable remedies of declaratory relief, specific
performance and injunctive relief.
2. CONDITION OF SUBLET SPACE.
2.1 PHYSICAL CONDITION. As of the Effective Date, Sublessee acknowledges
that Sublessee shall have conducted Sublessee's own investigation of the Sublet
Space and the physical condition thereof, including accessibility and location
of utilities, improvements, which in Sublessee's judgment materially affect or
influence Sublessee's use of the Sublet Space and Sublessee's willingness to
enter this Sublease. Sublessee recognizes that Sublessor would not sublease the
Sublet Space except on an "as is" basis and acknowledges that Sublessor has made
no representations of any kind in connection with improvements or physical
conditions on, or bearing on, the use of the Sublet Space Sublessee shall rely
solely on Sublessee's own inspection and examination of such items and not on
any representations of Sublessor, express or implied. Sublessee further
recognizes and agrees that neither Sublessor nor Landlord shall be required to
perform any work of construction, alteration or maintenance of or to the Sublet
Space, except as provided for in EXHIBIT C; provided, however, Sublessor shall
deliver the Sublet Space to Sublessee in broom clean condition and free of any
tenants or occupants which would affect Sublessee's use thereof.
2.2 FURTHER INSPECTION. Sublessee represents and warrants to Sublessor
that as of the Effective Date Sublessee shall examine and inspect all matters
with respect to permissible uses, the Master Lease, zoning, covenants,
conditions and restrictions and all other matters which in Sublessee's judgment
bear upon the value and suitability of the Sublet Space for Sublessee's
purposes. Sublessee has and will rely solely on Sublessee's own inspection and
examination of such items and not on any representations of Sublessor, express
or implied.
5.
3. SUBLEASE SUBJECT TO MASTER LEASE.
3.1 INCLUSIONS. It is expressly understood, acknowledged and agreed by
Sublessee that all of the other terms, conditions and covenants of this Sublease
shall be those stated in the Master Lease except as excluded in Section 3.2
herein, modified as appropriate in the circumstances so as to make such
Articles, and any Sections contained therein, applicable only to the subleasing
hereunder by Sublessor of the particular Sublet Space covered hereby. Whenever
the word "Premises" is used in the Master Lease, for purposes of this Sublease,
the word Sublet Space shall be substituted. Sublessee shall be subject to, bound
by and comply with all of said Articles and Sections of the Master Lease with
respect to the Sublet Space and shall satisfy all applicable terms and
conditions of the Master Lease relating to the Sublet Space for the benefit of
both Sublessor and Landlord, it being understood and agreed that wherever in the
Master Lease the word "Tenant" appears, for the purposes of this Sublease, the
word "Sublessee" shall be substituted, and wherever the word "Landlord" appears,
for the purposes of this Sublease, the word "Sublessor" shall be substituted;
and that upon the breach of any of said terms, conditions or covenants of the
Master Lease by Sublessee or upon any Event of Default by Sublessee hereunder,
Sublessor may exercise any and all rights and remedies granted to Landlord by
the Master Lease. In the event of any conflict between this Sublease and the
Master Lease, the terms of this Sublease shall control. It is further understood
and agreed that Sublessor has no duty or obligation to Sublessee under the
aforesaid Articles and Sections of the Master Lease other than to perform the
obligations of Sublessor as lessee under the Master Lease during the Term of
this Sublease. Whenever the provisions of the Master Lease incorporated as
provisions of this Sublease require the written consent of Landlord, said
provisions shall be construed to require the written consent of both Landlord
and Sublessor. Sublessee hereby acknowledges that it has read and is familiar
with all the terms of the Master Lease, and agrees that this Sublease is
subordinate and subject to the Master Lease and that any termination thereof not
due to a default by Sublessor thereunder shall likewise terminate this Sublease.
3.2 EXCLUSIONS. The terms and provisions of the following Sections and
portions of the Master Lease are not incorporated into this Sublease: 1, 2, 3,
4, the first sentence of Section 5, the second paragraph of Section 5, Section
6.B., Section 7.C., the second paragraph of Section 7.D., 8, 9.A, the second
through sixth sentences of Section 10 and the word "exclusive" from the first
sentence of Section 10, the second and third paragraphs of 10, 11, the first
paragraph of Section 12, 13, 15, 16, 21, the addresses in Section 22 shall be
replaced by the addresses given in the Defined Terms, 24, 30, 31, 33 and the
entire First Amendment. Notwithstanding anything to the contrary in the Master
Lease, in no event shall Sublessee be required to spend more than Fifteen
Thousand Dollars ($15,000) per calendar year in order to fulfill Sublessee's
obligations to repair the Sublet Space pursuant to Section 9.B of the Master
Lease, unless such obligations arise from the negligence or willful misconduct
of Sublessee or Sublessee's Parties, Sublessee shall provide Sublessor with
written notice of any repair obligations exceeding Fifteen Thousand Dollars
($15,000) annually, along with evidence satisfactory to Sublessor of the cost of
such work and the aggregate amount of such work performed by Sublessee during
such year, and Sublessor shall reimburse Sublessee for the cost thereof above
the Fifteen Thousand Dollar ($15,000) annual threshold within thirty (30) days
of receipt of evidence therefor.
3.3 TIME FOR NOTICE. The time limits provided for in the provisions of the
Master Lease for the giving of notice, making of demands, performance of any
act, condition or covenant, or the exercise of any right, remedy or option, are
amended for the purposes of this
6.
Sublease by lengthening or shortening the same in each instance by five (5)
days, as appropriate, so that notices may be given, demands made, or any act,
condition or covenant performed, or any right, remedy or option hereunder
exercised, by Sublessor or Sublessee, as the case may be, within the time limit
relating thereto contained in the Master Lease. If the Master Lease allows only
five (5) days or less for Sublessor to perform any act, or to undertake to
perform such act, or to correct any failure relating to the Premises or this
Sublease, then Sublessee shall nevertheless be allowed three (3) days to perform
such act, undertake such act and/or correct such failure.
4. LANDLORD'S OBLIGATIONS. It shall be the obligation of Landlord to (i)
provide all services to be provided by Landlord under the terms of the Master
Lease and (ii) to satisfy all obligations and covenants of Landlord made in the
Master Lease. Sublessee acknowledges that Sublessor shall be under no obligation
to provide any such services or satisfy any such obligations or covenants;
provided, however, that: Sublessor, upon written notice by Sublessee, shall
diligently attempt to enforce all obligations of Landlord under the Master Lease
(without requiring Sublessor to spend more than a nominal sum, which nominal sum
shall be limited to all costs associated with the preparation of and transmittal
to Landlord of documentation from Sublessor or Sublessee's attorneys determining
the obligations to be performed by Landlord under the Master Lease). If, after
receipt of written request from Sublessee, Sublessor shall fail or refuse to
take action ("Action") or if Sublessor's action is not, in Sublessor and
Sublessee's mutual judgement, adequate for the enforcement of Sublessor's rights
against Landlord with respect to the portion of the Premises then occupied by
Sublessee, Sublessee shall have the right to take such Action or additional
action, including but not limited to litigation, in its own name, and for that
purpose and only to such extent, all of the rights of Sublessor as tenant under
the Master Lease are hereby conferred upon and assigned to Sublessee, and
Sublessee shall be subrogated to such rights to the extent that the same shall
apply to the portion of the Premises then occupied by Sublessee. If any Action
against Landlord in Sublessee's name shall be barred by reason of lack of
privity, nonassignability or otherwise, Sublessee may take such Action in
Sublessor's name; provided that Sublessee has obtained the prior written consent
of Sublessor, which consent shall not be unreasonably withheld; and provided,
further, that Sublessee shall indemnify, protect, defend by counsel reasonably
satisfactory to Sublessor and hold Sublessor harmless from and against any and
all claims, demands, actions, suits, proceedings, liabilities, obligations,
losses, damages, judgments, costs and expenses (including, without limitation,
reasonable attorneys' fees) which Sublessor may incur or suffer by reason of
such Action, except to the extent incurred or suffered by reason of Sublessor's
negligent acts or omissions.
5. RENT.
5.1 INITIAL RENT. Upon execution hereof, Sublessee shall deliver the first
month's Base Rent to Sublessor, to be applied against Sublessee's first
obligation to pay Base Rent hereunder. Sublessee shall pay to Sublessor the Base
Rent in advance on the first day of each month of the Term, commencing on the
Rent Commencement Date without being invoiced by Sublessor. In the event the
first day of the Term shall not be the first day of a calendar month or the last
day of the Term is not the last day of the calendar month, the Base Rent shall
be appropriately prorated based on a thirty (30) day month. All installments of
Base Rent shall be delivered to Sublessor's address, or at such other place as
may be designated in writing from time to time by Sublessor, in lawful money of
the United States and, except as otherwise provided for herein, without
deduction or offset for any cause whatsoever.
7.
5.2 GROSS RENTAL. The parties acknowledge that this Sublease is intended
to be a "gross" sublease and that Sublessee shall have no obligation to
reimburse Sublessor for any operating expenses, utilities, janitorial expenses,
landscaping costs, insurance premiums or real property taxes passed through to
Sublessor by Landlord pursuant to the terms of the Master Lease, all of which
costs are a part of the Base Rent.
5.3 LATE PAYMENT CHARGES AND INTEREST. Any payment of Rent or other amount
from Sublessee to Sublessor in this Sublease which is not paid within five (5)
days of the date due shall accrue interest from the date due until the date paid
at an annual rate of ten percent (10%) (the "Interest Rate"). If any installment
of Rent is not paid by the fifth of the month, or otherwise when due, Sublessee
shall pay to Sublessor a late payment charge equal to five percent (5%) of the
amount of such delinquent payment of Rent, in addition to the installment of
Rent then owing; provided, however, that such late charge (but not payment of
the Interest Rate) shall be excused the first time during the Term of the
Sublease that an installment of Rent is paid later than the fifth day of the
month. This Section 5 shall not relieve Sublessee of Sublessee's obligation to
pay any amount owing hereunder at the time and in the manner provided.
6. SECURITY DEPOSIT. Upon execution hereof, Sublessee shall deposit with
Sublessor (i) a cash security deposit (the "Cash Deposit") in the amount of the
Security Deposit described in the Defined Terms, and (ii) the original copy of a
clean, irrevocable and unconditional letter of credit (the "Letter of Credit")
in the amount of One Hundred Thousand Dollars ($100,000) issued by a financial
institution, and subject only to terms, acceptable to Sublessor.
(Notwithstanding the foregoing, Sublessor agrees to review the requirement and
amount required under the Letter of Credit every six (6) months during the Term
of this Sublease. In so doing, Sublessor will review Sublessee's financial
situation, cash position and cash burn rate compared to the remaining financial
obligations of Sublessee for the remainder of the Term in order to determine if
it is appropriate, in Sublessor' sole discretion, to reduce the amount of the
Letter of Credit. To the extent that Sublessor decides to reduce the amount of
the Letter of Credit, Sublessee will renew or extend the Letter of Credit for
the agreed upon amount, and provide Sublessor with written notice thereof within
five (5) business days.) The Letter of Credit shall provide for its payment to
Sublessor upon its presentation of a statement from Sublessor that an Event of
Default by Sublessee exists hereunder. Upon the failure of Sublessee to deliver
a replacement letter of credit (or an extension of the existing Letter of
Credit) on or before thirty (30) days prior to any maturity date of any such
Letter of Credit, Sublessor may draw upon the same and thereafter treat such
cash as a portion of the Security Deposit. (The Cash Deposit and Letter of
Credit are hereinafter collectively referred to as the "Security Deposit.") The
Security Deposit shall secure Sublessee's obligations under this Sublease to pay
Base Rent and other monetary amounts, to maintain the Sublet Space and repair
damages thereto, to surrender the Sublet Space to Sublessor in clean condition
and repair upon termination of this Sublease and to discharge Sublessee's other
obligations hereunder. Sublessor may use and commingle any cash portion of the
Security Deposit with other funds of Sublessor. If Sublessee fails to perform
Sublessee's obligations hereunder, Sublessor may, but without any obligation to
do so, apply all or any portion of the Security Deposit towards fulfillment of
Sublessee's unperformed obligations. If Sublessor does so apply any portion of
the Security Deposit, Sublessee's failure to remit to Sublessor a sufficient
amount in cash to restore the Security Deposit to the original amount or, in the
case of a partial draw by Sublessor under the Letter of Credit, the failure of
Sublessee to replace such Letter of Credit with an new Letter of Credit in the
full original amount within five (5) days after receipt of Sublessor's written
demand to do so shall constitute an Event of Default. Upon termination of
8.
this Sublease, if Sublessee has then performed all of Sublessee's obligations
hereunder, Sublessor shall return the Security Deposit, or whatever amount
remains of the Security Deposit after Sublessor applied all or a portion of the
Security Deposit to perform Sublessee's obligations hereunder, to Sublessee
without payment of interest.
7. USE. The Sublet Space is to be used for the Permitted Uses, and for no
other purpose or business without the prior written consent of Sublessor. In no
event shall the Sublet Space be used for a purpose or use prohibited by the
Master Lease.
8. ASSIGNMENT AND SUBLETTING. Sublessee shall not sell, assign, encumber,
sublease or otherwise transfer by operation of law or otherwise the Sublet Space
or this Sublease without Sublessor's consent, which consent shall not be
unreasonably withheld. Any such sale, assignment, encumbrance, sublease or other
transfer in violation of the terms of this Sublease shall be void and shall be
of no force or effect. Notwithstanding anything to the contrary contained
herein, Sublessee may assign or Sublease the Sublet Space, in whole or in part,
without Sublessor's consent, but with Landlord's consent if so required under
the Master Lease, to any entity which controls, is controlled by, or is
controlled by, or is under common control with, Sublessee; to any entity which
results from a merger or consolidation with Sublessee, to any entity engaged in
a joint venture with Sublessee; or to any entity which acquires substantially
all the assets or stock of Sublessee as a going concern, with respect to the
business that is being conducted in the Sublet Space (hereinafter, each a
"Permitted Transfer"), provided that in each of the foregoing instances, such
assignee has a net worth equal to or greater than Sublessee's as of the Rent
Commencement Date. In addition, a sale or transfer of the capital stock of
Sublessee shall be deemed a Permitted Transfer if (i) such sale or transfer
occurs in connection with any bona fide financing or capitalization for the
benefit of Sublessee, or (ii) Sublessee becomes a publicly traded corporation.
Sublessor shall have no right to terminate the Sublease in connection with, and
shall have no right to any sums or other economic consideration resulting from,
any Permitted Transfer.
9. ALTERATIONS. Sublessee shall not make or suffer to be made any alterations,
additions or improvements (collectively "Alterations") in, on, or to the Sublet
Space without the prior written consent of Sublessor which consent shall not be
unreasonably withheld. Any Alterations Sublessee is permitted to make shall be
made by Sublessee at Sublessee's sole cost and expense, and Sublessee shall
notify Sublessor at least five (5) business days in advance of the same so that
Sublessor may post appropriate notices of nonresponsibility. Provided that
Sublessee so requests Sublessor in writing at that time, Sublessor shall inform
Sublessee, at time Sublessee seeks Sublessor's consent to an Alteration, whether
or not such Alteration must be removed at the expiration of the Term of this
Sublease. Upon the expiration or sooner termination of this Sublease, Sublessee
shall, upon demand by Sublessor, at Sublessee's sole cost and expense, forthwith
and with all due diligence, remove any Alterations made or paid for by Sublessee
whose removal was required by Sublessor upon Sublessor's granting consent
therefor (or for which Sublessee did not seek Sublessor's removal preference
upon installation) and Sublessee shall forthwith and with all due diligence, at
Sublessee's sole cost and expense, repair and restore the Sublet Space to their
original condition, ordinary wear and tear excepted.
9.
10. DAMAGE AND DESTRUCTION.
10.1 TERMINATION OF MASTER LEASE. If the Sublet Space is damaged or
destroyed and Landlord or Sublessor exercises any option either may have to
terminate the Master Lease, if any, this Sublease shall terminate as of the date
of the termination of the Master Lease.
10.2 CONTINUATION OF SUBLEASE. If the Master Lease is not terminated
following any damage or destruction as provided above, this Sublease shall
remain in full force and effect and Sublessee shall be entitled to any reduction
or abatement of Base Rent in an amount in proportion to the corresponding
reduction in base rent for the Sublet Space which Sublessor receives under the
Master Lease, if any. Sublessor shall diligently enforce any obligation of
Landlord to rebuild the Sublet Space in accordance with the Master Lease; and
(ii) Sublessor shall make available to Sublessee any insurance proceeds
Sublessor receives as a result of such damage or destruction.
11. EMINENT DOMAIN.
11.1 TOTAL CONDEMNATION. If all of the Premises is condemned by eminent
domain, inversely condemned or sold in lieu of condemnation, for any public or a
quasi-public use or purpose ("Condemned" or "Condemnation"), this Sublease shall
terminate as of the date of title vesting in such proceeding, and Base Rent
shall be adjusted to the date of termination.
11.2 PARTIAL CONDEMNATION. If any portion of the Premises is Condemned,
and Sublessor exercises any option to terminate the Master Lease, this Sublease
shall automatically terminate as of the date of the termination of the Master
Lease. If Sublessor has the option to terminate the Master Lease, Sublessor
shall promptly give Sublessee notice of such option and shall exercise such
option if so directed by Sublessee subject to the relevant provisions of the
Master Lease and further provided that such partial condemnation renders the
Premises unusable for Sublessee's business, as reasonably determined by
Sublessor. If this Sublease is not terminated following any such Condemnation,
this Sublease shall remain in full force and effect and Sublessee shall be
entitled to any reduction or abatement in Base Rent in any amount in proportion
to the corresponding reduction in Base Rent for the Sublet Space which Sublessor
receives under the Master Lease. Sublessor shall diligently enforce any rights
under the Master Lease to require Lessor to rebuild the Premises. Base Rent
shall be equitably adjusted to take into account interference with Sublessee's
ability to conduct its operations on the Premises as a result of the Premises
being Condemned. Sublessee hereby waives the provisions of California Code of
Civil Procedure Section 1265.130 permitting a court of law to terminate this
Sublease.
11.3 SUBLESSEE'S AWARD. Subject to the provisions of the Master Lease,
Sublessee shall have the right to recover from the condemning authority, but not
from Sublessor, such compensation as may be separately awarded to Sublessee in
connection with costs and removing Sublessee's merchandise, furniture, fixtures,
leasehold improvements and equipment to a new location.
12. INSURANCE. All insurance policies required to be carried by Sublessee
pursuant to this Sublease, shall contain a provision whereby Sublessor and
Landlord are each named as additional insureds under such policies.
10.
13. BROKERAGE COMMISSION. Sublessor shall pay a brokerage commission to
Sublessor's Broker for Sublessee's subletting of the Sublet Space as provided
for in a separate agreement between Sublessor and Broker. Sublessor and
Sublessee warrant to each other that its sole contact with the other or the
Sublet Space in connection with this transaction has been directly with their
respective brokers. Sublessor and Sublessee further warrant for the benefit of
the other that no other broker or finder can properly claim a right to a
commission or a finder's fee based upon contacts between the claimant and the
other party with respect to the other party or the Sublet Space. Sublessor and
Sublessee shall indemnify, defend by counsel acceptable to the indemnified party
and hold the other harmless from and against any loss, cost or expense,
including, but not limited to, attorneys' fees and court costs, resulting from
any claim for a fee or commission by any broker or finder, other than any claims
by Sublessor's broker or Sublessee's Broker, in connection with the Sublet Space
and this Sublease.
14. SUBLESSE'S INDEMNITY. Sublessee shall defend, indemnify and hold harmless
Sublessor, its partners, employees, and agents from and against any and all
claims, liabilities, suits, judgments, awards, damages, losses, fines,
penalties, costs and expenses, including reasonable attorney's fees, that
Sublessor, its partners, employees and agents may suffer, incur or be liable for
by reason of or arising out of or related to the breach by Sublessee of any of
the duties, obligations, liabilities or covenants applicable to sublessee
hereunder, Sublessee's occupancy or use of the Sublet Space, any alterations,
additions or modifications made to the premises by Sublessee or Sublessee's
negligence or willful misconduct. This indemnification shall survive termination
of this Sublease.
15. RIGHT TO CURE SUBLESSEE'S DEFAULTS. If Sublessee shall at any time fail to
make any payment or perform any other obligation of Sublessee hereunder, then
Sublessor shall have the right, but not the obligation, after the lesser of five
(5) days' notice to sublessee or the time within which Landlord may act on
Sublessor's behalf under the Master Lease, or without notice to Sublessee in the
case of any emergency, and without waiving or releasing sublessee from any
obligations of Sublessee hereunder, to make such payment or perform such other
obligation of Sublessee in such manner and to such extent as Sublessor shall
deem necessary, and in exercising any such right, to pay any incidental costs
and expenses, employ attorneys and other professionals, and incur and pay
attorneys' fees and other costs reasonably required in connection therewith.
Sublessee shall pay to sublessor upon demand all sums so paid by Sublessor and
all incidental costs and expenses of Sublessor in connection therewith, together
with interest thereon at the Interest Rate.
16. HAZARDOUS MATERIALS.
16.1 DEFINITIONS.
16.1.1 "HAZARDOUS MATERIALS." As used herein, "Hazardous Materials"
means any chemical, substance, material, controlled substance, object,
condition, waste, living organism or combination thereof which is or may be
hazardous to human health or safety or to the environment due to its
radioactivity, ignitability, corrosivity, reactivity, explosivity, toxicity,
carcinogenicity, mutagenicity, phytotoxicity, infectiousness or other harmful or
potentially harmful properties or effects, including, without limitation,
petroleum and petroleum products, asbestos, radon, polychlorinated biphenyls
(PCBs) and all of those chemicals, substances, materials, controlled substances,
objects, conditions, wastes, living organisms or combinations
11.
thereof which are now or become in the future listed, defined or regulated in
any manner by any Environmental Law based upon, directly or indirectly, such
properties or effects.
16.1.2 ENVIRONMENTAL LAWS. As used herein, "Environmental Laws"
means any and all federal, state or local environmental, health and/or safety-
related laws, regulations, standards, decisions of courts, ordinances, rules,
codes, orders, decrees, directives, guidelines, permits or permit conditions,
currently existing and as amended, enacted, issued or adopted in the future
which are or become applicable to Sublessee or the Premises.
16.2 SUBLESSEE'S COVENANT. Sublessee shall not cause, or allow any of
Sublessee's employees, agents, customers, visitors, invitees, licensees,
contractors, assignees or subtenants (collectively, "Sublessee's Parties") to
cause or permit, any Hazardous Materials to be brought upon, stored,
manufactured, generated, blended, handled, recycled, treated, disposed or used
on, under or about the Premises, except for routine office and janitorial
supplies in usual and customary quantities stored, used and disposed of in
accordance with all applicable Environmental Laws. Sublessee and Sublessee's
Parties shall comply with all Environmental Laws and promptly notify Sublessor
of the presence of any Hazardous Materials, other than office and janitorial
supplies as permitted above, on the Premises or any violation of any
Environmental Law. Sublessor shall have the right to inspect the Premises and to
conduct tests and investigations to determine whether Sublessee is in compliance
with the foregoing provisions provided that in each instance: (i) Sublessor
gives Sublessee prior written notice of such inspection at least seventy-two
(72) hours in advance, (except in cases of emergency, in which case no emergency
shall be necessary) and (ii) Sublessor and Sublessor's agents, contractors and
representatives conduct such investigation in a manner designated to cause the
least possible interference to Sublessee and Sublessee's use of the Premises. If
such tests indicate the presence of any environmental condition caused by
Sublessee or its agents, employees, contractors or invitees, Sublessee shall
reimburse Sublessor for the cost of conducting such tests. The phrase
"environmental condition" shall mean any adverse condition relating to any
Hazardous Materials or the environment, including surface water, groundwater,
drinking water supply, land, surface or subsurface strata or the ambient air and
includes air, land and water pollutants, noise, vibration, light and odors. In
the event that Sublessee or its agents, employee's, contractors or invitees have
caused Hazardous Materials to be released, stored, disposed of or introduced to
the Premises in a manner or in amounts in violation of Environmental Laws,
Sublessee shall promptly take any and all steps necessary to rectify the same as
required by either the Landlord pursuant to the terms of the Master Lease or any
federal, state or local government agency or political subdivision on account
thereof or shall, at Sublessee's election, reimburse Sublessor, upon demand, for
the cost to Sublessor of performing rectifying work. The reimbursement shall be
paid to Sublessor in advance of Sublessor's performing such work, based upon
Sublessor's reasonable estimate of the cost thereof; and upon completion of such
work by Sublessor, Sublessee shall pay to Sublessor any shortfall promptly after
Sublessor bills Sublessee therefore or Sublessor shall promptly refund to
Sublessee any excess deposit, as the case may be. In the event that Sublessee
shall elect to rectify such violation of Environmental Law but fail to commence
to do so within the time periods required by relevant governmental authorities
or within a time period specified by Sublessor, in Sublessor's reasonable
discretion, Sublessor shall have the right to perform such rectifying work, and
Sublessee shall reimburse Sublessor for the cost thereof upon demand therefor.
Nothing in this Section 16.2 shall be deemed to create a liability for or an
obligation of Sublessee to remediate Hazardous Materials released or stored on
12.
the Premises prior to the Commencement Date by parties other than Sublessee or
Sublessee's agents, employees, contractors or invitees.
16.3 SUBLESSEE'S INDEMNIFICATION. Sublessee shall indemnify, protect,
defend (by counsel reasonably acceptable to Sublessor) and hold harmless
Sublessor and its partners, directors, officers, employees, shareholders,
lenders, agents, contractors and each of their respective successors and assigns
(individually and collectively, "Indemnities") from and against any and all
claims, judgments, causes of action, damages, penalties, fines, taxes, costs,
liabilities, losses and expenses arising at any time during or after the Term as
a result (directly or indirectly) of or in connection with (a) Sublessee and/or
Sublessee's Parties' breach of any prohibition or provision of the preceding
section, or (b) the release, storage, use or discharge of Hazardous Materials on
the Sublet Space after the Early Occupancy Date, except to the extent caused by
Sublessor or Sublessor's Parties during the period between the Early Occupancy
Date and the Rent Commencement Date. This indemnity shall include the cost of
any required or necessary repair, cleanup or detoxification, and the preparation
of any closure or other required plans, whether such action is required or
necessary prior to or following the termination of this Sublease. Neither the
written consent by Sublessor to the presence of Hazardous Materials on, under or
about the Premises nor the strict compliance by Sublessee with all Environmental
Laws shall excuse Sublessee from Sublessee's obligation of indemnification
pursuant hereto. Sublessee's obligations pursuant to the foregoing indemnity
shall survive the termination of this Sublease.
16.4 SUBLESSOR'S INDEMNIFICATION. Sublessor shall indemnify, protect,
defend (by counsel reasonably acceptable to Sublessee) and hold harmless
Sublessee and its partners, directors, officers, employees, shareholders,
lenders, agents, contractors and each of their respective successors and assigns
(individually and collectively, "Indemnities") from and against any and all
claims, judgments, causes of action, damages, penalties, fines, taxes, costs,
liabilities, losses and expenses arising at any time during or after the Term as
a result (directly or indirectly) of or in connection with the release, storage,
disposal, use or discharge of Hazardous Materials on, under or about the
Premises prior to the Early Occupancy Date but subsequent to the commencement of
the term of the Master Lease. This indemnity shall include the cost of any
required or necessary repair, cleanup or detoxification, and the preparation of
any closure or other required plans, whether such action is required or
necessary prior to or following the termination of this Sublease. The strict
compliance by Sublessor with all Environmental Laws shall not excuse Sublessor
from Sublessor's obligation of indemnification pursuant hereto. Sublessor's
obligations pursuant to the foregoing indemnity shall survive the termination of
this Sublease.
16.5 SUBLESSOR'S REPRESENTATION AND WARRANTY. Sublessor represents and
warrants to Sublessee that, to Sublessor's current actual knowledge, as of the
date of this Sublease, Sublessor has not received any written notice from any
governmental agency that Hazardous Materials are present on the Premises in
violation of any Environmental Law. For the purposes of this Section 16.5, the
term "to Sublessor's current actual knowledge" shall mean the actual (and not
imputed) knowledge of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇ ▇▇▇ ▇▇▇▇▇ as of the date of this
Sublease, without the obligation to perform any due diligence, analysis and
investigation of any kind whatsoever.
13.
17. MISCELLANEOUS.
17.1 ENTIRE AGREEMENT. This Sublease contains all of the covenants,
conditions and agreements between the parties concerning the Sublet Space, and
shall supersede all prior correspondence, agreements and understandings
concerning the Sublet Space, both oral and written. No addition or modification
of any term or provision of this Sublease shall be effective unless set forth in
writing and signed by both Sublessor and Sublessee.
17.2 CAPTIONS. All captions and headings in this Sublease are for the
purposes of reference and convenience and shall not limit or expand the
provisions of this Sublease.
17.3 LANDLORD'S CONSENT. This Sublease is conditioned upon Landlord's
written approval of this Sublease. If Landlord refuses to consent to this
Sublease on or before March 1, 1995 this Sublease shall terminate and neither
party shall have any continuing obligation to the other with respect to the
Sublet Space; provided Sublessor shall return the Deposit, if previously
delivered to Sublessor, to Sublessee.
17.4 AUTHORITY. Each person executing this Sublease on behalf of a party
hereto represents and warrants that he or she is authorized and empowered to do
so and to thereby bind the party on whose behalf he or she is signing.
17.5 ATTORNEYS' FEES. In the event either party shall bring any action or
proceeding for damages or for an alleged breach of any provision of this
Sublease to recover rents, or to enforce, protect or establish any right or
remedy hereunder, the prevailing party shall be entitled to recover reasonable
attorneys' fees and court costs as part of such action or proceeding
17.6 PARKING. Sublessee is allocated and shall have the non-exclusive
right to use not more than one hundred thirteen (113) of the parking spaces
appurtenant to the Premises for its use and the use of Sublessee's Parties, the
location of which may be designated from time to time by Sublessor. Sublessee
shall not at any time use more parking spaces than the number so allocated to
Sublessee or park its vehicles or the vehicles of others in any portion of the
Premises not designated by Sublessor as a non-exclusive parking area. Neither
Sublessee nor Sublessee's Parties shall have the exclusive right to use any
specific parking space. Nothing contained in this Sublease shall be deemed to
create liability upon Sublessor for any damage to motor vehicles of visitors or
employees, for any loss of property from within those motor vehicles, or for any
injury to Sublessee or Sublessee's Parties, unless ultimately determined to be
caused by the sole act of negligence or willful misconduct of Sublessor or
Sublessor's Parties. Sublessee shall have no right to install any fixtures,
equipment or personal property in parking areas.
17.7 HOLDOVER. This Sublease shall terminate without further notice at the
expiration of the Sublease Term. If Sublessee holds over at the Sublet Space or
any part thereof after the expiration or earlier termination of the Term, such
holding over shall constitute a month-to-month tenancy, at a rent equal to one
hundred seventy-five percent (175%) of the Base Rent due hereunder. Nothing in
the foregoing sentence shall be deemed Sublessor's permission for Sublessee to
hold over, and acceptance of Base Rent by Sublessor following expiration of
termination of the Sublease shall not constitute a renewal of this Sublease. In
addition to the foregoing, Sublessee shall indemnify, defend by counsel
satisfactory to Sublessor, protect and hold Sublessor harmless from any and all
liabilities, claims, causes of action, damages, costs or
14.
expenses (including reasonable attorney's fees) directly or indirectly resulting
from Sublessee's holding over at the Sublet Space beyond the expiration or
termination of the Term.
17.8 ACCESS. Sublessor reserves the right to enter the Sublet Space upon
reasonable notice to Sublessee (except that in case of emergency no notice shall
be necessary) in order to inspect the Sublet Space and/or the performance by
Sublessee of the terms of this Sublease.
17.9 TENANT IMPROVEMENTS. Sublessor, at Sublessor's sole cost and expense,
shall perform certain improvements to the Sublet Space, as more particularly
described in EXHIBIT C attached hereto.
IN WITNESS WHEREOF, the parties hereto have executed one (1) or more copies
of this Sublease, dated as of the Effective Date.
"SUBLESSOR"
▇▇▇▇▇▇ CORPORATION, a Delaware corporation
By: _________________________________
Its: ______________________________
"SUBLESSEE"
By: NVidia Corporation
By: _________________________________
Its: ______________________________
ACCEPTED AND AGREED TO:
"LANDLORD"
OAKMEAD INVESTMENTS,
a general partnership
By ______________________________
Its _________________________
By ______________________________
Its _________________________
15.
CONSENT OF LANDLORD
Landlord, as landlord under the Master Lease, hereby consents to the
execution and delivery of the Sublease by and between Sublessor and Sublessee
and the subletting of the Premises in accordance with the terms of the Sublease.
"Landlord"
By: ___________________________________
Its: ________________________________
EXHIBIT A
MASTER LEASE
[To Be Attached]
FIRST AMENDMENT TO LEASE
This FIRST AMENDMENT TO LEASE ("Amendment") is made as of April 1, 1992
("Effective Date"), between OAKMEAD INVESTMENTS, a general partnership
("Landlord"), and ▇▇▇▇▇▇ CORPORATION, a Delaware corporation ("Tenant").
A. Landlord and Tenant are parties to that certain Net Lease Agreement
("Lease"), dated November 7, 1983, wherein Landlord leased to Tenant
approximately Fifty-Nine Thousand Eight Hundred Eighty-Five (59,885) square feet
of space ("Premises") in that certain building ("Building") located at ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ in Sunnyvale, California.
B. Landlord and Tenant desire to modify the Lease as hereinafter provided.
Capitalized terms used herein shall have the same meanings given them in the
Lease unless defined herein.
NOW, THEREFORE, in consideration of the mutual covenants and promises of
the parties, the parties hereto agree as follows:
1. EXTENSION OF TERM. The Term of the Lease is hereby extended until March 31,
2002 ("Expiration Date").
2. RENT. As of the Effective Date, the amount of Rent due under the lease
shall be modified in accordance with the rental table attached hereto as EXHIBIT
B. Rent shall be paid in the manner and at the times described in Section 4 of
the Lease.
3. OPTIONS TO EXTEND.
3.1 TERMS OF OPTIONS. Provided that Tenant is not in default beyond any
applicable cure periods under the terms of the Lease, Tenant shall have the
right, at its option, to extend the Term of the Lease for two (2) periods of
five (5) years each (collectively, the "Extension Terms"). The first extension
term ("First Extension Term") shall commence on the Expiration Date and extend
to the date ("First Extension Term Expiration Date") of expiration of the First
Extension Term. The second extension term ("Second Extension Term") shall
commence on the First Extension Term Expiration Date.
3.2 EXERCISE NOTICE. If Tenant elects to extend the Lease for the First
Extension Term, Tenant shall give written notice thereof to Landlord not less
than one hundred eight (180) days prior to the Expiration Date. If Tenant elects
to extend the Lease for the Second Extension Term, Tenant shall give written
notice thereof to Landlord not less than one hundred eighty (180) days prior to
the First Extension Term Expiration Date.
3.3 APPLICABLE TERMS AND CONDITIONS. The terms, covenants and conditions
applicable to both Extension Terms shall be the same terms, covenants and
conditions of the Lease, as amended by this Amendment, except that upon Tenant's
exercise of its option for the First Extension Term, Tenant shall have the right
to extend the Term of the Lease for the Second Extension Term only. Upon
Tenant's exercise of its option for the Second Extension Term, Tenant shall have
no further right to extend the Term of the Lease.
3.4 AMENDMENT. If Tenant shall exercise an Extension Option, Landlord and
Tenant shall execute an amendment to this Lease, in form and content mutually
acceptable to Landlord and Tenant, on or before the Expiration Date (or, in the
case of the Second Extension Term, the First Extension Term Expiration Date)
whereby Landlord and Tenant acknowledge the resulting extension of the Term of
the Lease.
4. FULL FORCE AND EFFECT. Except as herein amended and supplemented, the Lease
shall continue in full force and effect as written.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the day and year first above written.
"LANDLORD"
Oakmead Investments, a
general partnership
By: ________________________________
Its: ___________________________
"TENANT"
▇▇▇▇▇▇ Corporation, a
Delaware corporation
By: ________________________________
Its: ___________________________
2.
EXHIBIT "B" - RENT SCHEDULE
BUILDING 15
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ - 59,885 sq. ft.
1. Commencing April 1, 1992, the monthly base rent shall be $50,000.00.
2. Commencing January 1, 1995, the monthly base rent shall be $53,800.00.
3. Commencing July 1, 1997, the monthly base rental shall be $58,000.00.
4. Commencing January 1, 2000, the monthly base rent shall be $62,500.00.
5. In the event Tenant elects to exercise its first option to extend the term
of this Lease:
(A) Commencing April 1, 2002, the monthly base rent shall be equal to the
then monthly rental paid for like improved space in the immediate area of the
Premises, but in no event less than $68,000.00.
(B) Commencing October 1, 2004, the monthly base rent shall be whatever it
was for September, 2004, multiplied by 1.09.
6. In the event Tenant elects to exercise its second option to extend the term
of the Lease:
(A) Commencing April 1, 2007, the monthly base rent shall be equal to the
then monthly rental paid for like improved space in the immediate area of the
Premises, but in no event less than whatever it was for March, 2007, multiplied
by 1.09.
(B) Commencing October 1, 2009, the monthly base rent shall be whatever it
was for September, 2009, multiplied by 1.09.
7. In the event Landlord and Tenant are unable to agree on the rent for either
Extension Term within a period of thirty (30) days following receipt by Landlord
of Tenant's written Exercise Notice per Paragraph 3.2 of this amendment, within
five (5) days after the expiration of the said thirty (30) day period, each
party, at its cost and by giving notice to the other party, shall appoint an
M.A.I. real estate appraiser with at least five (5) years full-time commercial
appraisal experience in the area in Santa ▇▇▇▇▇ County to appraise and set the
fair market rental value of the Premises. If a party does not appoint an
appraiser within five (5) days after the other party has given notice to the
name of its appraiser, the single appraiser appointed shall be the sole
appraiser and shall set the fair market rental value. The cost of such sole
appraiser shall be borne equally by the parties. If two appraisers are
appointed by the parties as provided in this paragraph, the two appraisers shall
meet promptly and attempt to set the fair market rental value. If they are
unable to agree within twenty (20) days after the last appraiser has been
appointed, then the two appraisers shall select a third appraiser meeting the
qualifications stated above within ten (10) days after the last day the two
appraisers are given to set the fair market rental value. If they are unable to
agree on the third appraiser, either of the parties to this Lease, by giving ten
(10) days notice to the other party, may apply to the presiding judge of the
Superior Court of Santa ▇▇▇▇▇ County for the selection of a third appraiser who
meets the qualifications
1.
stated above. Each of the parties shall bear one-half (1/2) of the cost of
appointing the third appraiser and of paying the third appraiser's fee. The
third appraiser, however selected, shall be a person who has not previously
acted in any capacity for either party. Within twenty (20) days after the
selection of the third appraiser, the majority of the appraisers shall set the
fair market rental value. If the majority of the appraisers are unable to agree
on the fair market rental value within said twenty (20) day period, the three
appraisals shall be added together and the total divided by three; the resulting
quotient shall be the fair market rental value. The foregoing notwithstanding,
if any appraisal differs from the median appraisal by an amount equal to more
than ten percent (10%) of such median appraisal, that appraisal shall be
disregarded, and the average of the remaining appraisals (or the remaining
appraisal) shall be the fair market rental value. In establishing the fair
market rental value, the appraiser or the highest and best use for the Premises
in its existing configuration (including, but not limited to, rental rates for
comparable space with comparable tenant improvements in the immediate area of
the Premises, and any adjustments to rent based upon direct costs (operating
expenses) and taxes, load factors, and/or cost of living or other rental
adjustments; and the size of the space); without regard to the existence of this
Lease but taking into consideration the absolute nature of this Lease.
2.
NET LEASE AGREEMENT
1. PARTIES. This Lease is made by and between OAKMEAD INVESTMENTS, a general
partnership of which ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. and ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ are all of the partners ("Landlord") and ▇▇▇▇▇▇ CORPORATION, a Delaware
corporation ("Tenant").
2. PREMISES. Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord, upon the terms and conditions herein set forth, those certain Premises
("Premises") situated in the City of Sunnyvale, County of Santa ▇▇▇▇▇, State of
California, commonly described as ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, and
described more particularly in EXHIBIT A hereto, incorporated herein by this
reference. The Premises include a building ("Building") of approximately 59,885
square feet.
3. TERM. The term of this Lease shall be for ten (10) years, commencing on
September 15, 1984 ("Commencement Date") and ending on September 30, 1994
("Expiration Date") unless sooner terminated pursuant to any provision hereof or
unless extended pursuant to the option provision hereof. If for any reason
Landlord cannot deliver possession of the Premises to Tenant on said date,
Tenant shall not be obligated to pay rent until possession of the Premises is
tendered to Tenant and the Commencement Date and Expiration Date of this Lease
shall be revised to conform to the date of Landlord's delivery of possession. If
possession of the Premises is not tendered to Tenant on or before September 15,
1984, Tenant shall have the right to terminate this Lease and shall have no
further obligations or liabilities hereunder. If Tenant so terminates this
Lease, Landlord shall return to Tenant all amounts paid by Tenant to Landlord in
respect of this Lease. In the event that Landlord shall permit Tenant to occupy
the Premises prior to the Commencement Date of the term, such occupancy shall be
subject to all of the provisions of this Lease, including the obligation to pay
rent at the same monthly rate as that prescribed for the first month of the
Lease term.
4. RENT. Tenant shall pay to Landlord rent for the Premises, without deduction
or offset, prior notice or demand, in advance, on the first day of each calendar
month of the term hereof, in installments in accordance with the following
table:
Monthly rental Total
per square foot Monthly
Commencing of the Building Rent
October 1, 1984 $ 0.80 $47,908.00
May 1, 1985 0.90 53,896.50
May 1, 1986 1.00 59,885.00
May 1, 1987 1.10 65,873.50
May 1, 1989 1.28 76,652.80
May 1, 1991 1.48 88,629.80
May 1, 1993 1.60 95,916.00
Rent for any period during the term hereof which is for less than one (1)
full month shall be a pro rata portion of the monthly installment. Rent shall be
payable in lawful money of the United States of America to Landlord at ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, #▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ or to such other persons or such
other places as Landlord may designate in writing.
1.
5. USE OF PREMISES. Tenant shall use the Premises only in conformance with
applicable governmental laws, regulations, rules and ordinances for the purposes
of offices, research and development, and assembly, storage and distribution of
electronic components and for no other purpose. Tenant shall indemnify, defend,
and hold Landlord harmless against any loss, expense, damage, attorneys' fees or
liability arising out of failure of Tenant to comply with any applicable law.
Tenant shall not commit or suffer to be committed any waste upon the Premises,
or any nuisance, or other acts or things which may disturb the quiet enjoyment
of any other tenant in or around the Building or allow any sale by auction upon
the Premises, or allow the Premises to be used for any improper, immoral,
unlawful or objectionable purpose, or place any loads upon the floor, walls or
ceiling which endanger the structure, or place any harmful liquids in the
drainage system of the Building. No waste materials or refuse shall be dumped
upon or permitted to remain upon any part of the Premises outside of the
Building except in trash containers placed inside exterior enclosures designated
for that purpose by Landlord or inside of the Building where designated by
Landlord. No materials, supplies, equipment finished products or semi-finished
products, raw materials or articles of any nature shall be stored upon or
permitted to remain on any portion of the Premises outside the Building. Tenant
shall comply with any covenant, condition or restriction ("C.C.&R.'s") affecting
the Premises.
Notwithstanding anything in this section to the contrary, (i) Landlord
warrants that Tenant's use of the Premises as provided in this section is in
accordance with applicable governmental laws, regulations, rules and ordinances
and any applicable C.C.&R's affecting the Premises, (ii) Tenant's indemnities
and warranties in this section are dependent upon Landlord's warranty herein and
(iii) Tenant shall not be required to pay any capital expenditure or other
governmental charge, provided, however, that Landlord shall determine the life
of any improvements constructed as a result of said expenditures and charges and
those expenditures and charges shall be divided by the number of years which
Landlord reasonably determines, and said annual amounts shall be paid by Tenant
during the applicable year provided that Tenant shall not be required to pay any
said amounts except during the term hereof and said annual amount shall be
prorated for portions of any year during which Tenant is a lessee pursuant to
this Lease.
6. TAXES AND ASSESSMENTS.
(A) TENANT'S PROPERTY. Tenant shall pay before delinquency any and all
taxes, assessments, license fees and public charges levied, assessed or imposed
upon or against Tenant's fixtures, equipment, furnishings, furniture, appliances
and personal property installed or located on or within the Premises.
(B) MONTHLY PAYMENT. All property taxes levied or assessed against the
Premises and Building which become due or accrue during the term of this Lease,
shall be a Common Area Charge and Tenant shall pay each month 1/12th of its
annual share of such property taxes pursuant to Section 11 below. Tenant's
liability hereunder shall be prorated to reflect the Commencement Date and
Expiration Date of this Lease and any extension of the Lease term pursuant to
the provisions of this Lease.
For the purpose of this Lease, the term "property taxes" means and includes
all taxes, assessments, taxes based on vehicles utilizing parking areas, taxes
based on rental income (exclusive of income taxes imposed by federal, state,
local or other governmental entities),
2.
Environmental Protection Agency charges, and any other governmental charges,
general or special, ordinary and extraordinary, of any kind and nature
whatsoever, applicable to the Premises or the Building, including, but not
limited to, assessments for public improvements or benefits which heretofore or
shall during the term of this Lease, or any extension thereof, be assessed,
levied, imposed upon or become due and payable and a lien upon the Premises or
the Building, or any part thereof, but excluding franchise, estate, inheritance,
succession, capital levy, transfer or excess profits tax imposed upon Landlord
and income taxes imposed by federal, state, local or other governmental entities
upon Landlord.
Any charges provided for in this section, including, but not limited to,
assessments for public improvements or benefits, shall be paid over the longest
possible time allowed, with Tenant liable for payments only during the portion
of the payment period which is also part of the term of this Lease pursuant to
Section 3 above.
7. INSURANCE.
(A) INDEMNITY. Tenant agrees to indemnify and defend Landlord against and
hold Landlord harmless from any and all claims, causes of action, judgments,
obligations or liabilities, and all reasonable expenses incurred in
investigating or resisting the same (including reasonable attorney's fees), on
account of, or arising out of, Tenant's acts or omissions on the Premises, not
including any negligence or willful misconduct of Landlord, and not including
any claims, causes of action, judgments, obligations or liabilities, and
expenses and attorneys' fees connected therewith, which are covered by insurance
provided pursuant to this Lease. This Lease is made on the express condition
that Landlord shall not be liable except as provided in Section 9, or suffer
loss by reason of injury to person or property, from whatever cause except
Landlord's negligence or willful misconduct, in any way connected with the
condition, use or occupancy of the Premises, specifically including, without
limitation, any liability for injury to the person or property of Tenant, its
agents, officers, employees, licensees and invitees.
(B) LIABILITY INSURANCE. Tenant shall, at Tenant's expense, obtain and
keep in force during the term of this Lease a policy of comprehensive public
liability insurance insuring Landlord and Tenant against any liability arising
out of the condition, use, or occupancy of the Premises and all areas
appurtenant thereto, including parking areas. Such insurance shall be in an
amount of not less than $1,000,000 for bodily injury or death as a result of any
one occurrence and $500,000 for damage to property as a result of any one
occurrence. The insurance shall be with companies approved by Landlord, which
approval Landlord agrees not to unreasonably withhold. Tenant shall deliver to
Landlord, prior to possession, a certificate of insurance evidencing the
existence of the policy required hereunder and such certificate shall certify
that the policy (1) names Landlord as an additional insured, (2) shall not be
canceled or altered without thirty (30) days' prior written notice to Landlord,
(3) insures performance of the indemnity set forth in Subsection 7(a) above, and
(4) the coverage is primary and any coverage by Landlord is in excess thereto.
Landlord specifically approves "Employer's Insurance of Wausau" as an insurance
company which Tenant may use to obtain liability insurance as provided in this
Subsection 7(b).
(C) PROPERTY INSURANCE. Landlord shall obtain and keep in force during
the term of this Lease a policy or policies of insurance covering loss or damage
to the Premises, in the amount of the full replacement value thereof, providing
protection against those perils included
3.
within the classification of "all risk" insurance and flood insurance plus a
policy of rental income insurance in the amount of 100% of 12 months rent
(including sums paid as additional rent). The cost of such insurance shall be a
Common Area Charge and Tenant shall pay to Landlord its share of said cost as
provided in Section 11 below. If such insurance is increased due to Tenant's use
of the Premises, Tenant agrees to pay to Landlord the full cost of such
increase. Tenant shall have no interest in or any right to the proceeds of any
insurance procured by Landlord on the Premises or the Building.
(D) RELEASE OF LANDLORD AND TENANT. Tenant hereby releases Landlord and
its partners, officers, agents, employees and servants from any and all claims,
demands, liens, losses, expenses or injuries to the Premises or to the
furnishings, fixtures, equipment, inventory or other property of Tenant in,
about, or upon the Premises, which is caused by or results from perils, events
or happenings which are covered by insurance carried by Tenant and in force at
the time of such loss.
Landlord hereby releases Tenant and its officers, agents, employees and
servants from any and all claims, demands, liens, losses, expenses or injuries
to the Premises or to the furnishings, fixtures, equipment, inventory or other
property of Landlord in, about or upon the Premises, which is caused by or
results from perils, events or happenings which are covered by insurance carried
by Landlord or Tenant and in force at the time of such loss.
8. UTILITIES. Tenant shall pay for all water, gas, light, heat, power,
electricity, telephone, trash pick-up, sewer charges, and all other services
supplied to or consumed on the Premises.
9. REPAIRS AND MAINTENANCE.
(A) Subject to provisions of Section 15, Landlord shall keep and maintain
the roof, structural elements and exterior walls of the Building in good order
and repair. The "structural elements" of the Building shall include the
electrical, plumbing and lighting systems other than those items of such systems
which are fixtures in the interior of the Premises. Tenant shall be responsible
for maintenance and repair of the heating and air conditioning systems unless
repairs are the result of defective installation or materials, in which event
Landlord shall repair the same at its own expense. However, Landlord may elect,
at its option, to keep and maintain the heating and air conditioning systems of
the Premises. The cost of the repairs and maintenance which Landlord elects to
perform pursuant to the preceding sentence shall be a Common Area Charge and
Tenant shall pay its share of such costs to Landlord as provided in Section 11
below. Other repairs and maintenance done pursuant to this Subsection 9(a) shall
be at the sole expense of Landlord. However, if any repairs or maintenance are
required because of an act or omission of Tenant, its agents, employees or
invitees, Tenant shall pay to Landlord, upon demand, on hundred percent (100%)
of the costs of such repair or maintenance unless such repair or maintenance is
covered by insurance provided pursuant to this Lease, in which case Tenant shall
pay the deductible amount of such insurance, such deductible not to exceed One
Thousand Dollars ($ 1,000.00).
(B) Except as expressly provided in Subsection 9(a) above, Tenant shall,
at its sole cost, keep and maintain the entire Premises and every part thereof,
including, without limitation, the windows, window frames, plate glass, glazing,
truck doors, doors and all door hardware, the interior walls and partitions, and
the electrical, plumbing, lighting, heating and air conditioning
4.
systems (unless Landlord has elected to keep and maintain the heating and air
conditioning systems pursuant to Subsection 9(a) above) in good order, condition
and repair, except that, notwithstanding anything to the contrary in this
Subsection 9(b), Tenant's obligations relating to electrical, plumbing and
lighting systems shall be limited to the fixtures of those systems on the
interior of the Premises.
Should Tenant fail to make repairs required of Tenant hereunder forthwith
upon notice from Landlord, Landlord, in addition to all other remedies available
hereunder or by law and without waiving any alternative remedies, may make the
same, and in that event, Tenant shall reimburse Landlord as additional rent for
the cost of such maintenance or repairs within five (5) days of written demand
by Landlord.
Tenant hereby expressly waives the provisions of subsection 1 of Section
1932 and Sections 1941 and 1942 of the Civil Code of California and all rights
to make repairs at the expense of Landlord as provided in Section 1942 of said
Civil Code.
10. COMMON AREA. Subject to the terms and conditions of this Lease and such
rules and regulations as Landlord may from time to time prescribe, Tenant and
Tenant's employees, invitees and customers shall have the exclusive right to use
the access roads, parking areas, and facilities provided and designated by
Landlord for the general use and convenience of the Premises, which areas and
facilities are referred to herein as "Common Area." This right shall terminate
upon the termination of this Lease. Landlord reserves the right from time to
time to make changes in the shape, size, location, amount and extent of Common
Area. Landlord further reserves the right to promulgate such reasonable rules
and regulations relating to the use of the Common Area, and any part or parts
thereof, as Landlord may deem appropriate for the best interests of the
occupants of the Building. The rules and regulations shall be binding upon
Tenant upon delivery of a copy of them to Tenant, and Tenant shall abide by them
and cooperate in their observance. Such rules and regulations may be amended by
Landlord from time to time, with or without advance notice, and all amendments
shall be effective upon delivery of a copy to Tenant. Notwithstanding anything
to the contrary herein, the rules and regulations relating to the Common Area
and any other area of the Premises shall not interfere with Tenant's use of the
Premises and, to the extent such rules and regulations do interfere with
Tenant's use of the Premises, such rules and regulations shall be void.
Tenant shall have the exclusive use of the total number of parking spaces
in the Common Area. Tenant shall not at any time park or permit the parking of
Tenant's trucks or other vehicles, or the trucks or other vehicles of others,
adjacent to loading areas so as to interfere in any way with the use of such
areas, nor shall Tenant at any time park or permit the parking of Tenant's
vehicles or trucks, or the vehicles or trucks of Tenant's suppliers or others,
in any portion of the Common Area not designated by Landlord for such use by
Tenant. Tenant shall not park or permit to be parked any inoperative vehicles or
equipment on any portion of the Common Area.
Landlord shall operate, manage and maintain the Common Area in the same
fashion as a common area maintained in a first class industrial park. The cost
of such maintenance, operation and management, including landscaping and repair
of paving and sidewalks, shall be a Common Area Charge and Tenant shall pay to
Landlord its share of such costs as provided in Section 11 below.
5.
11. COMMON AREA CHARGES. Tenant shall pay to Landlord, as additional rent,
upon demand but not more often than once each calendar month, an amount equal to
one hundred percent (100%) of the Common Area Charges as defined in this Lease.
12. ALTERATIONS.
(A) Tenant may, without the prior consent of the Landlord, make any
alterations, improvements or additions in, on, about or to the Premises or any
part thereof that do not impair the structural soundness of the Building. Tenant
shall have the right to remove at any time any alteration, improvement,
addition, trade fixture, personal property, fixtures, equipment or other items
which Tenant uses in or affixes to the Premises, subject to the obligation to
repair any damage caused by such removal. Prior to the Commencement Date of the
Lease, Tenant shall provide Landlord with a list of the alterations,
improvements and additions that Tenant proposes to make in, on, about and to the
Premises, designating which additions, improvements and additions Tenant does
not intend to remove at the termination or expiration of the Lease.
Notwithstanding anything to the contrary above, Tenant shall not have the right
to remove such alterations, improvements and additions at the termination or
expiration of the Lease.
(B) If, during the term hereof, any alteration, addition or change of any
sort through all or any portion of the Premises is required by law, regulation,
ordinance or order of any public agency, Tenant, at its sole cost and expense,
shall promptly make the same. If, during the term hereof, any alteration,
addition or change to the Common Area or to the Building is required by law,
regulation, ordinance, or order of any public agency, the cost of such
alteration, addition, or change shall be a Common Area Charge and Tenant shall
pay its share of said costs to Landlord as provided in Section 11 above.
Tenant's obligations under this Subsection 12(b) are limited to the extent that
such costs shall be paid over the life of such improvements as provided in
Section 5 above.
13. CONDITION OF THE PREMISES. Landlord hereby warrants to Tenant that the
Premises have been constructed in accordance with all applicable governmental
rules, laws, ordinances and regulations and that the Premises are free from
defects in workmanship, design and materials. Any agreements, warranties or
representations not expressly contained herein shall in no way bind either
Landlord or Tenant, and Landlord and Tenant expressly waive all claims for
damages by reason of any statement, representation, warranty, promise or
agreement, if any, not contained in this Lease.
14. DEFAULT.
(A) EVENTS OF DEFAULT. A breach of this Lease shall exist if any of the
following events (hereinafter referred to as "Event of Default") shall
occur:
(1) Default in the payment when due of any installment of rent or
other payment required to be made by Tenant hereunder and such failure shall
have continued for ten (10) days after written notice of such failure is given
to Tenant;
(2) Tenant's failure to perform any other term, covenant or condition
contained in this Lease and such failure shall have continued for thirty (30)
days after written notice of such failure is given to Tenant;
6.
(3) Tenant's vacating or abandonment of Premises;
(4) Tenant's assignment of its assets for the benefit of its
creditors;
(5) The sequestration of, attachment of, or execution on, any
substantial part of the property of Tenant or on any property essential to the
conduct of Tenant's business, shall have occurred and Tenant shall have failed
to obtain a return or release of such property within ninety (90) days
thereafter, or prior to sale pursuant to such sequestration, attachment or levy,
whichever is earlier; or
(6) A court having jurisdiction shall have made or entered any
decree or order (a) adjudging Tenant to be bankrupt or insolvent, (b) approving
as properly filed a petition seeking reorganization of Tenant or seeking an
arrangement under the bankruptcy laws or any other applicable debtors' relief
law or statute of the United States or any State thereof, (c) appointing a
receiver, trustee or assignee of Tenant in bankruptcy or insolvency for its
property, or (d) directing the winding up or liquidation of Tenant; and such
decree or order shall have continued for a period of ninety (90) days; or Tenant
shall have voluntarily submitted to or filed a petition seeking any such decree
or order.
(B) REMEDIES. Upon any Event of Default, Landlord shall have the
following remedies, in addition to all other rights and remedies provided by
law, to which Landlord may resort cumulatively, or in the alternative:
(1) RE-ENTRY WITHOUT TERMINATION. Landlord may re-enter the
Premises and, without terminating this Lease, at any time relet the Premises or
any part or parts of them, for the account and in the name of Tenant or
otherwise. Landlord may, at Landlord's election, eject Tenant or any of Tenant's
subtenants, assignees or other person or persons claiming any right under or
through this Lease, and remove to storage Tenant's fixtures, equipment,
furnishings, furniture, appliances and personal property installed or located on
or without the Premises. Tenant shall nevertheless pay the Landlord on the due
date specified in this Lease all sums required of Tenant under this Lease, plus
Landlord's expenses, less the proceeds of any sublease or reletting. The
expenses allowed Landlord shall include, without limitation: cost paid to retake
possession (including attorneys' fees), cost of removal to storage, cost of
storage, cost to place the Premises in good condition and alter them for
reletting, costs to secure new tenants (including real estate broker's
commissions) and costs to fulfill all of Tenant's covenants and conditions to
the end of the term. No act by or on behalf of landlord under this provision
shall constitute a termination of this Lease unless Landlord gives written
notice of termination.
(2) RECOVERY OF RENT. Landlord shall be entitled to keep this
Lease in full force and effect (whether or not Tenant shall have abandoned the
Premises) and to enforce all of its rights and remedies under this Lease,
including the right to recover rent and other sums as they become due, plus
interest at the rate of ten percent (10%) per annum from the due date of each
installment of rent or other sum until paid.
(3) TERMINATION. Landlord may terminate this Lease by giving
Tenant written notice of termination. On the giving of the notice all Tenant's
rights in the Premises and the Building shall terminate. Upon the giving of the
notice of termination, Tenant shall surrender and vacate the Premises in the
condition required by Section 32, and Landlord
7.
may re-enter and take possession of the Premises and all the remaining
improvements or property and eject Tenant or any of Tenant's sub-tenants,
assignees or other person or persons claiming any right under or through Tenant
or eject some and not others or eject none. This Lease may also be terminated by
a judgment specifically providing for termination. Any termination under this
Subsection 14(b)(3) shall not release Tenant from the payment of any sum then
due Landlord or from any claim for damages or rent previously accrued or then
accruing against Tenant. In no event shall any one or more of the following
actions by Landlord constitute a termination of this Lease:
A. maintenance and preservation of the Premises;
B. efforts to relet the Premises;
C. appointment of a receiver in order to protect Landlord's
interest hereunder;
D. consent to any subletting of the Premises or assignment
of this Lease by Tenant, whether pursuant to provisions hereof concerning
subletting and assignment or otherwise; or
E. any other action by Landlord or Landlord's agents
intended to mitigate the adverse effects from any breach of this Lease by
Tenant.
(4) DAMAGES. In the event this Lease is terminated pursuant to
Subsection 14(b)(3) above, Landlord shall be entitled to damages in the
following sums:
A. the worth at the time of award of the unpaid rent which
has been earned at the time of termination; plus
B. the worth at the time of award of the amount by which
the unpaid rent which would have been earned after termination until the time of
award exceeds the amount of such rental loss that Tenant proves could have been
reasonably avoided; plus
C. the worth at the time of award of the amount by which
the unpaid rent for the balance of the term after the time of award exceeds the
amount of such rental loss that Tenant proves could be reasonably avoided; and
D. any other amount necessary to compensate Landlord for
all detriment proximately caused by Tenant's failure to perform Tenant's
obligations under this Lease, or which in the ordinary course of things would be
likely to result therefrom including, without limitation, the following: (i)
expenses for cleaning, repairing or restoring the Premises; (ii) expenses for
altering, remodeling or otherwise improving the Premises for the purpose of
reletting, including installation of leasehold improvements (whether such
installation be funded by a reduction of rent, direct payment or allowance to
Tenant or otherwise); (iii) real estate broker's fees, advertising costs and
other expenses of reletting the Premises; (iv) costs of carrying the Premises
such as taxes and insurance premiums thereon, utilities and security
precautions; (v) expenses in retaking possession of the Premises; (vi)
attorney's fees and court
8.
costs; and (vii) any unamortized real estate brokerage commission paid in
connection with this Lease.
E. The "worth at the time of award" of the amounts referred
to in Subsections 14(b)(4)a and 14(b)(4)b is computed by allowing interest at
the rate of ten percent (10%) per annum. The "worth at the time of award" of the
amounts referred to in Subsection 14(b)(4)c is computed by discounting such
amount at the discount rate of the Federal Reserve Board of San Francisco at the
time of award plus one percent (1%). The term "rent" as used in this paragraph
shall include all sums required to be paid by Tenant to Landlord pursuant to the
terms of this Lease.
15. DESTRUCTION.
(A) DESTRUCTION OF LESS THAN THIRTY PERCENT. In the event that the
Premises are damaged or destroyed to the extent that the estimated cost of
repairing and restoring the Premises is less than thirty percent (30%) of the
appraised value of the Premises immediately prior to such damage or destruction,
Landlord shall, at its expense, promptly rebuild and restore the Premises to
their condition immediately prior to the damage or destruction.
If Landlord does not complete the rebuilding or restoration within one
hundred eighty (180) days following the date of damage or destruction (such
period of time to be extended for delays caused by the fault or neglect of
Tenant or because of acts of God, acts of public agencies, labor disputes,
strikes, fires, freight embargoes, rainy or stormy weather, inability to obtain
materials, supplies or fuels, acts of contractors or subcontractors, or delay of
the contractors or subcontractors due to such causes or other contingencies
beyond the control of Landlord), then Tenant shall have the right to terminate
this Lease by giving fifteen (15) days' prior written notice to Landlord.
Landlord's obligation to rebuild or restore shall not include restoration of
Tenant's trade fixtures, equipment, merchandise, or any improvements,
alterations or additions made by Tenant to the Premises.
(B) DESTRUCTION OF THIRTY PERCENT OR MORE. In the event that the Premises
are damaged or destroyed to the extent that the estimated cost of repairing and
restoring the Premises is thirty percent (30%) or more of the appraised value of
the Premises immediately prior to such damage or destruction, Landlord may, at
its option, (a) rebuild or restore the Premises to their condition prior to the
damage or destruction, or (b) terminate this Lease.
If Landlord does not give Tenant notice in writing within thirty (30) days
from the damage or destruction of the Premises of its election to either rebuild
and restore the Premises, or to terminate this Lease, Landlord shall be deemed
to have elected to rebuild or restore the Premises, in which event Landlord
agrees, at its expense, promptly to rebuild or restore the Premises to their
condition prior to the damage or destruction. If Landlord does not complete the
rebuilding or restoration within one hundred eighty (180) days following the
date of damage or destruction (such period of time to be extended for delays
caused by the fault or neglect of Tenant or because of acts of God, acts of
public agencies, labor disputes, strikes, fires, freight embargoes, rainy or
stormy weather, inability to obtain materials, supplies or fuels, acts of
contractors or subcontractors, or delay of the contractors or subcontractors due
to such causes or other contingencies beyond the control of Landlord), then
Tenant shall have the right to terminate this Lease by giving fifteen (15) days'
prior written notice to Landlord. Landlord's
9.
obligation to rebuild or restore shall not include restoration of Tenant's trade
fixtures, equipment, merchandise, or any improvements, alterations or additions
made by Tenant to the Premises.
(C) TENANT'S RIGHTS. Notwithstanding anything to the contrary in this
Section 15, Tenant shall have the right to terminate this Lease by giving
fifteen (15) days' prior written notice to Landlord in the event the Premises
are damaged or destroyed to the extent that such damage or destruction
materially interferes with Tenant's use of the Premises.
(D) NO TERMINATION. Unless this Lease is terminated pursuant to the
foregoing provisions, this Lease shall remain in full force and effect. Tenant
hereby expressly waives the provisions of Section 1932, Subdivision 2, and
Section 1933, Subdivision 4 of the California Civil Code.
16. CONDEMNATION.
(A) DEFINITION OF TERMS. For the purposes of this Lease, the term (1)
"Taking" means a taking of the Premises or damage to the Premises related to the
exercise of the power of eminent domain and includes a voluntary conveyance, in
lieu of court proceedings, to any agency, authority, public utility, person or
corporate entity empowered to condemn property; (2) "Total Taking" means the
Taking of the entire Premises or so much of the Premises as, in the sole
discretion of Tenant, prevents or substantially impairs the use thereof by
Tenant for the uses herein specified; (3) "Partial Taking" means the Taking of
only a portion of the Premises which does not constitute a Total Taking; (4)
"Date of Taking" means the date upon which the title to the Premises, or a
portion thereof, passes to and vests in the condemnor or the effective date of
any-order for possession if issued prior to the date title vests in the
condemnor; (5) "Award" means the amount of any award made, consideration paid,
or damages ordered as a result of a Taking.
(B) RIGHTS. The parties agree that in the event of a Taking all rights
between them or in and to an Award shall be as set forth herein and Tenant shall
have no right to any Award except as set forth herein.
(C) TOTAL TAKING. In the event of a Total Taking during the term hereof
(1) the rights of Tenant under the Lease and the leasehold estate of Tenant in
and to the Premises shall cease and terminate as of the date of Taking; (2)
Landlord shall refund to Tenant any prepaid rent; (3) Tenant shall pay the
Landlord any rent or charges due Landlord under the Lease, each prorated as of
the date of Taking; (4) Tenant shall receive from the Landlord those portions of
the Award attributable to trade fixtures of Tenant and for moving expenses of
Tenant; (5) the remainder of the Award shall be paid to and be the property of
Landlord.
(D) PARTIAL TAKING. In the event of a Partial Taking during the term
hereof (1) the rights of Tenant under the Lease and the leasehold estate of
Tenant in and to the portion of the Premises taken shall cease and terminate as
of the Date of Taking; (2) from and after the Date of Taking the monthly
installment of rent shall be an amount equal to the product obtained by
multiplying the monthly installment of rent immediately prior to the Taking by
the quotient obtained by dividing the fair market value of the Premises after
the Taking by the fair market value of the Premises prior to the Taking; and (3)
Tenant shall receive from the Award the portions of the Award attributable to
trade fixtures of Tenant; and (4) the remainder of the Award shall be paid to
and be the property of Landlord.
10.
(E) TENANT'S RIGHTS. Notwithstanding anything to the contrary in this
Section 16, Tenant shall have the right to terminate this Lease if any material
Taking interferes with Tenant's use of the Premises.
17. MECHANICS' LIEN. Tenant shall (1) pay for all labor and services performed
for, materials used by or furnished to, Tenant or any contractor employed by
Tenant with respect to the Premises, and (2) indemnify, defend and hold Landlord
and the Premises harmless and free from any liens, claims, demands,
encumbrances, or judgments created or suffered by reason of any labor or
services performed for, materials used by or furnished to, Tenant or any
contractor employed by Tenant with respect to the Premises, and (3) give notice
to Landlord in writing five (5) days prior to employing any laborer or
contractor to perform services related to, or receiving materials for use upon
the Premises, and (4) permit Landlord to post a notice of nonresponsibility in
accordance with the statutory requirements of California Civil Code Section 3094
or any amendment thereof. In the event Tenant is required to post an improvement
bond with a public agency in connection with the above, Tenant agrees to include
Landlord as an additional obligee.
18. INSPECTION OF THE PREMISES. Tenant shall permit Landlord and its agents to
enter the Premises at any reasonable time for the purpose of inspecting the
same, performing Landlord's maintenance and repair responsibilities, posting a
notice of nonresponsibility for alterations, additions or repairs, and at any
time within ninety (90) days prior to expiration of this Lease, to place upon
the Premises ordinary "For Lease" or "For Sale" signs. Notwithstanding the
foregoing, such entry, maintenance and repair shall not interfere with Tenant's
use of the Premises.
19. COMPLIANCE WITH LAWS. Tenant shall, at its own cost, comply with all of
the requirements of all municipal, county, state and federal authority now in
force, or which may hereafter be in force, pertaining to the use and occupancy
of the Premises, and shall faithfully observe all municipal, county, state and
federal statutes or ordinances now in force or which may hereafter be in force.
The judgment of any court of competent jurisdiction or the admission of Tenant
in any action or proceeding against Tenant, whether Landlord be a party thereto
or not, that Tenant has violated any such ordinance or statute in the use and
occupancy of the Premises shall be conclusive of the fact that such violation by
Tenant has occurred. The provisions of this Section 19 shall be subject to
Landlord's warranties found in Section 13 above and Landlord's obligations to
spread the expense of any capital improvement over the life of such improvement
as found in Section 5 above.
20. SUBORDINATION.
(A) RIGHTS. At the option of the Landlord, the rights of Tenant under this
Lease shall be subject and subordinate to any mortgage or deed of trust which
are or may hereafter be placed upon the Premises, or any part thereof, by
Landlord.
(B) DOCUMENTS. Tenant shall, upon Landlord's request, promptly execute any
instrument (including an amendment to this Lease) or instruments of
subordination necessary to subordinate this Lease to any mortgage or deed of
trust to be placed upon the Premises, or any part thereof, by Landlord in
accordance with Subsection 20(a) above. Tenant agrees to recognize any mortgagee
or beneficiary of the deed of trust subsequently encumbering the Premises and
11.
any party acquiring title to the Premises, by judicial foreclosure or a
trustee's sale, as a successor to Landlord hereunder.
(C) QUIET ENJOYMENT. Notwithstanding anything to the contrary in this
Section, Tenant's quiet enjoyment of the Premises shall not be disturbed by any
mortgagee or beneficiary under a deed of trust or by anyone else as long as
Tenant is not in default under this Lease.
21. HOLDING OVER. This Lease shall terminate without further notice at the
expiration of the Lease Term. Any holding over by Tenant after expiration shall
not constitute a renewal or extension or give Tenant any rights in or to the
Premises except as expressly provided in this Lease. Any holding over after the
expiration with the consent of Landlord shall be construed to be a tenancy from
month to month, at 150% of the monthly rent for the last month of the Lease
term, and shall otherwise be on the terms and conditions herein specified
insofar as applicable.
22. NOTICES. Any notice required or desired to be given under this Lease shall
be in writing with copies directed as indicated below and shall be personally
served or given by mail. Any notice given by mail shall be deemed to have been
given when forty-eight (48) hours have elapsed from the time which such notice
was deposited in the United States mails, certified and postage prepaid,
addressed to the party to be served with a copy as indicated herein at the last
address given by that party to the other party under the provisions of this
section. At the date of execution of this Lease, the address of Landlord is:
Oakmead Investments
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, #▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
and the address of Tenant is:
▇▇▇▇▇▇ `Corporation
▇.▇. ▇▇▇ ▇▇▇
Mail Stop 110
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇
Manager of Real Estate
23. ATTORNEYS' FEES. In the event either party shall bring any action or legal
proceeding for damages for an alleged breach of any provision of this Lease, to
recover rent, to terminate the tenancy of the Premises, or to enforce, protect
or establish any term or covenant of this Lease or right or remedy of either
party, the prevailing party shall be entitled to recover as a part of such
action or proceeding reasonable attorneys' fees and court costs, including
attorneys' fees and costs for appeal, as may be fixed by the court or jury.
24. NONASSIGNMENT. Tenant's interest in this Lease is not assignable, by
operation of law or otherwise, nor shall Tenant have the right to sublet the
Premises, transfer any interest of Tenant's therein or permit any use of the
Premises by another party, without the prior written consent of Landlord to such
assignment, subletting, transfer or use, which consent Landlord agrees not to
unreasonably withhold. A consent to one assignment, subletting, occupancy or use
by another
12.
party shall not be deemed to be a consent to any subsequent assignment,
subletting, occupancy or use by another party. Any assignment or subletting
without such consent shall be void and shall, at the option of Landlord,
terminate this Lease.
Landlord's waiver or consent to any assignment or subletting hereunder
shall not relieve Tenant from any obligation under this Lease unless the waiver
or consent shall so provide.
25. SUCCESSORS. The covenants and agreements contained in this Lease shall be
binding on the parties hereto and on their respective heirs, successors and
assigns (to the extent the Lease is assignable).
26. LANDLORD LOAN OR SALE. Tenant agrees promptly following request by
Landlord to execute and deliver to Landlord any documents, including estoppel
certificates, presented to Tenant by Landlord, (i) certifying that, to Tenant's
knowledge, this Lease is unmodified and in full force and effect or specifying
any modifications made, and specifying the date to which the rent and other
charges are paid in advance, if any, and (ii) acknowledging that there are not,
to Tenant's knowledge, any uncured defaults on the part of Landlord hereunder or
specifying any such defaults, and (iii) evidencing the status of the Lease, to
Tenant's knowledge, as may be required either by a lender making a loan to
Landlord to be secured by deed of trust or mortgage covering the Premises or a
purchaser of the Premises from Landlord.
27. SURRENDER OF LEASE NOT MERGER. The voluntary or other surrender of this
Lease by Tenant, or a mutual cancellation thereof, shall not work a merger and
shall, at the option of Landlord, terminate all or any existing subleases or
subtenants, or operate as an assignment to Landlord of any or all such subleases
or subtenants.
28. WAIVER. The waiver by Landlord or Tenant of any breach of any term,
covenant or condition or any subsequent breach of the same or any other term,
covenant or condition herein contained shall not be deemed to be a waiver of
such term, covenant or condition or any subsequent breach of the same or any
other term, covenant or condition herein contained.
29. GENERAL.
(A) The captions and paragraph headings used in this Lease are for the
purposes of convenience only. They shall not be construed to limit or extend the
meaning of any part of this Lease.
(B) The term "Landlord" as used in this Lease, so far as the covenants or
obligations on the part of Landlord are concerned, shall be limited to mean and
include only the owner at the time in question of the fee title of the Premises,
and in the event of any transfer or transfers of the title of such fee, the
Landlord herein named (and in case of any subsequent transfers or conveyances,
the then grantor) shall after the date of such transfer or conveyance be
automatically freed and relieved of all liability with respect to performance of
any covenants or obligations on the part of Landlord contained in this Lease,
thereafter to be performed; provided, that any funds in the hands of Landlord or
the then grantor at the time of such transfer, in which Tenant has an interest,
shall be turned over to the grantee. It being intended that the covenants and
obligations contained in this Lease on the part of Landlord shall, subject as
aforesaid, be binding upon each Landlord, its heirs, personal representatives,
successors and assigns only during its respective period of ownership.
13.
(C) Any executed copy of this Agreement shall be deemed an original for
all purposes.
(D) Time is of the essence for the performance of each term, covenant and
condition of this Lease.
(E) In case any one or more of the provisions contained herein, except for
the payment of rent, shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision of this Lease, but this Lease shall be
construed as if such invalid, illegal or unenforceable provisions had not been
contained herein. This Lease shall be construed and enforced in accordance with
the laws of the State of California.
(F) If Tenant is more than one person or entity, each such person or
entity shall be jointly and severally liable for the obligations of Tenant
hereunder.
(G) This Lease constitutes the entire understanding between the parties
hereto and no addition to, or modification of, any term and provision of this
Lease shall be effective until set forth in writing signed by both Landlord and
Tenant.
30. SIGN. Tenant shall not place or permit to be placed any sign or decoration
on the Premises or the exterior of the Building without the prior written
consent of Landlord, which consent shall not be unreasonably with held. Tenant,
upon written notice by Landlord, shall immediately remove any sign or decoration
that Tenant has placed or permitted to be placed on the land or the exterior of
the Building without the prior written consent of Landlord, and if Tenant fails
to so remove such sign or decoration within five (5) days after Landlord's
written notice, Landlord may enter upon the Premises and remove said sign or
decoration and Tenant agrees to pay Landlord, as additional rent upon demand,
the cost of such removal. At the termination of this Lease, Tenant shall remove
any sign which it has placed on the Premises or Building, and shall repair any
damage caused by the installation or removal of such sign.
31. INTEREST ON PAST DUE OBLIGATIONS. Any amount due to Landlord not paid when
due shall bear interest at the rate of ten percent (10%) per annum from the due
date. Payment of such interest shall not excuse or cure any default by Tenant
under this Lease.
32. SURRENDER OF THE PREMISES. On the last day of the term hereof, or on
sooner termination of this Lease, Tenant shall surrender the Premises to
Landlord in condition sufficient to be leased for general office purposes,
excepting reasonable wear and tear and any damages or destruction caused by
casualty or acts of God, with all painted interior walls washed, or repainted if
marked or damaged, and other interior walls cleaned, and repaired or replaced,
all carpets shampooed and cleaned, the air conditioning and heating equipment
serviced and repaired by a reputable and licensed service firm (unless Landlord
has elected to maintain heating and air conditioning pursuant to Section 9A
above), all floors cleaned and waxed, all to the reasonable satisfaction of
Landlord. Tenant shall remove all Tenant's personal property and trade fixtures
from the Premises, and all property not so removed shall be deemed abandoned by
Tenant. If the Premises are not so surrendered at the termination of this Lease,
Tenant shall indemnify Landlord against loss or liability resulting from delay
by Tenant in so surrendering the Premises including, without limitation, any
claims made by any succeeding tenant or losses to Landlord due to lost
opportunities to lease to succeeding tenants.
14.
33. OPTION TO EXTEND.
(A) PERIOD. Provided that Tenant is not in default under this Lease at the
end of the original term of this Lease, Tenant shall have the option to extend
the term of the Lease for two (2) successive five (5) year periods on all of the
same terms and conditions set forth in this Lease, except for the rental
adjustment as provided in this Section 33. The option to extend for the first
five (5) year period shall be exercisable only by Tenant giving Landlord written
notice not less than one hundred twenty (120) days prior to the Expiration Date.
The option to extend for the second five (5) year period shall be exercisable
only by Tenant giving Landlord written notice not less than one hundred twenty
(120) days prior to the expiration of the first option period.
(B) RENT FOR FIRST THIRTY MONTHS.
(1) Sixty (60) days prior to the expiration of the original term
of the Lease, Landlord and Tenant shall enter into negotiations with respect to
the rent for the first thirty (30) months of the first five (5) year option.
(2) In the event such agreement cannot be made within ninety
(90) days prior to the expiration of the original term of the lease, the
Landlord and Tenant shall each appoint an independent third party real estate
professional who must have at least five (5) years experience in commercial
industrial real estate brokerage in Santa ▇▇▇▇▇ County and be a member of the
Association of South Bay Brokers. In the event one party fails to appoint said
real estate professional within fifteen (15) days following receipt of written
notice in which the other party has named its professional, the other party may
request the President of the Association of South Bay Brokers to appoint the
second professional for the failing party. The two professionals shall
independently submit written statements of what each determines to be the Fair
Market Rent for like space, similarly improved, in the area. If the difference
as determined is 10% or less, the rent during the first thirty (30) months of
the renewal term shall be the average of the two. If the difference is greater
than 10%, a third professional shall be chosen jointly by the first two
professionals and the three Fair Market Rent amounts shall be averaged to
determine such rent.
(C) RENT AFTER FIRST THIRTY MONTHS.
(1) After the first thirty (30) months of the first five (5)
year option period, the rent shall be increased by twenty percent (20%)
("Adjusted Rent").
(2) Effective at the commencement of the second five (5) year
period, the rent shall be as determined by using the same process stated in
33(b), above, for the first five (5) year option period ("Second Adjusted
Rent").
(3) Effective thirty (30) months after the commencement of the
second five (5) year option period, the rent shall be the Second Adjusted Rent
increased by twenty percent (20%).
(D) RENT NOT LESS THAN PREVIOUS PERIOD. In no event shall the monthly rent
during either option period be less than the monthly rent during the last month
of the previous term or option period, as applicable.
15.
34. AUTHORITY. The undersigned parties hereby warrant that they have proper
authority and are empowered to execute this Lease on behalf of the Landlord and
Tenant, respectively.
IN WITNESS WHEREOF, the parties have executed this Agreement on the dates
set forth below.
LANDLORD: TENANT:
OAKMEAD INVESTMENTS, ▇▇▇▇▇▇ CORPORATION,
a Delaware corporation a Delaware corporation
By: __________________________________ By: ________________________________
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ E.S. HARTFORD
Partner Director of Facilities
Date _________________________________ Date _______________________________
16.
EXHIBIT B
SUBLET SPACE - FLOOR PLAN
[To Be Attached]
[Exhibit B Diagram]
EXHIBIT C
TENANT IMPROVEMENTS
Sublessor, at Sublessor's sole cost and expense, shall provide space
planning services to define tenant improvements yet shall improve the premises
substantially as follows:
A. Install a uni-sex prefabricated shower stall, no tile.
B. Provide one (1) monument sign, subject to Landlord approval.
C. Repair any missing base board.
D. Demise premises by building walls at locations specified in Exhibit B.
E. Divide the large center room marked "C" into two conference rooms.
F. Create three (3) lab areas totaling 1,750 square feet with 15 (20 amp)
electrical drops and tile floor covering.
G. Provide allowance up to seven thousand five hundred dollars ($7,500) for
miscellaneous tenant improvements to be performed by ▇▇▇▇▇▇ at current
billing rates, including necessary rezoning of HVAC only to areas affected
by tenant improvement work except that ▇▇▇▇▇▇ will balance HVAC in areas
"C" and office 708 at no cost. Sublessee shall install, at its sole cost,
any security and telecommunication systems. ▇▇▇▇▇▇ will assist in such
coordination if required - by consultation.
H. Divide office 708 into two offices and replace door hardware on second
door.
I. Remove hallway door located between offices 708 and 254.
J. Complete wall between offices 727 and 731.
K. Restore (build) wall between offices 811 and 813 to match the drawing.
L. Install hallway door between offices 784 and 779, if required by code.
FIRST AMENDMENT TO SUBLEASE
RE: That certain Sublease dated February 16, 1995 by and between ▇▇▇▇▇▇
Corporation as Sublessor and NVidia as Sublessee as pertains to the
Property identified as ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
PARAGRAPH 6: The Letter of Credit will be in the amount of $125,000 for the
first six (6) months of the Sublease, after which, if Sublessee has made its
rental payments on time as agreed, Sublessor will require it to be no greater
than $100,000.
Sublessor and Sublessee agree that the attached form of Landlord consent is
acceptable in lieu of the form attached to the original Sublease.
▇▇▇▇▇▇ CORPORATION NVIDIA
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By:[SIGNATURE ILLEGIBLE]
---------------------------- -------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Its: Vice President, Facilities Its: Vice President of Operations
Date: March 1, 1995 Date: February 28, 1995
------------------------ ---------------------------
attachment
CONSENT OF LANDLORD
AS TO THE ▇▇▇▇▇▇ TO NVIDIA SUBLEASE
AT ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇
Landlord grants its consent to the Subleasing of a portion of the Premises
without modifying any term, condition or covenant of the Master Lease as between
Landlord and Sublessor.
"LANDLORD"
By: [SIGNATURE ILLEGIBLE]
-------------------------
Its: PARTNER
------------------------
AMENDMENT NO. 2 TO SUBLEASE
This AMENDMENT NO. 2 TO SUBLEASE ("Amendment") is made effective as of
September 1, 1995 (the "Effective Date") between ▇▇▇▇▇▇ CORPORATION, a Delaware
corporation ("Sublessor"), and NVIDIA CORPORATION.
The parties enter into this Amendment based upon the following facts,
understandings and intentions:
A. Sublessor currently leases approximately 59,885 rentable square feet of
space (the "Premises") at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ pursuant to
that certain Lease Agreement dated November 7, 1983 between Oakmead Investments,
as landlord, and Sublessor, as tenant.
B. Sublessor and Sublessee are now parties to that certain Sublease
Agreement, dated February 2, 1995, for the use of approximately 29,100 rentable
square feet, but by agreement, charged as 27,875 rentable square feet of space
("Existing Sublet Space") in the Premises.
C. Sublessor desires to sublease additional space to Sublessee and
Sublessee desires to sublease additional space from Sublessor on all of the
terms, covenants and conditions hereinafter set forth.
D. The parties hereto desire to modify the Sublease as hereinafter
provided. Capitalized terms used herein shall have the same meaning given them
in the Sublease unless otherwise defined herein.
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants and promises of
the parties, the parties hereto agree as follows:
1. EXPANSION OF EXISTING PREMISES. As of the Effective Date, the Existing
Sublet Space shall be increased to an aggregate size of approximately 34,251
rentable square feet of space, but by agreement, charged as 33,026 rentable
square feet consisting of: (i) the approximately 29,100 rentable square feet of
space (but by agreement, charged as 27,875 rentable square feet) comprising the
Existing Sublet Space, and (ii) approximately 5,151 rentable square feet of
space ("Additional Space") located in the Premises and more particularly shown
on EXHIBIT A attached to this Amendment. Sublessee hereby accepts the
Additional Space in an "as-is, where-is" condition, as exists as of the
Effective Date, with all defects, whether or not disclosed to Sublessee by
Sublessor, and subject to all applicable laws, ordinances and regulations and
any covenants or restrictions of record relating to the Additional Space.
However, Sublessor will be responsible for demising the Additional Space,
including relocating doors for offices 1166, 1172, 1174, 1184, and 1186. The
cost of relocating doors for these offices will be amortized over the remaining
initial sublease term and added to the rent. Sublessor makes no representations
or warranties, express or implied, as to the physical condition of the
Additional Space, its current compliance with law or its fitness for Sublessee's
intended use, or the condition of the structural and nonstructural portions of
the Additional Space or whether any repairs are necessary to correct preexisting
conditions.
1.
2. RENT. The monthly Base Rent due hereunder the Sublease shall be
Thirty-Three Thousand Nine Hundred Ninety-Five Dollars and Fifty-Four Cents
($33,995.54).
3. PARKING. The number of parking spaces allotted under Section 17.6 of
the Sublease are amended to one hundred thirty (133).
4. FULL FORCE AND EFFECT. Except as herein amended and supplemented, the
Sublease shall continue in full force and effect as written.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment with
duplicate counterparts as of the day and year first above written.
SUBLESSOR
▇▇▇▇▇▇ Corporation,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President, Facilities
SUBLESSEE
NVidia Corporation
By: [SIGNATURE ILLEGIBLE]
-------------------------------
Title: Vice President of Operation
----------------------------
2.
AMENDMENT NO. 3 TO SUBLEASE
This AMENDMENT NO. 3 TO SUBLEASE ("Amendment") is made as of September 4,
1997 between ▇▇▇▇▇▇ CORPORATION, a Delaware corporation, and NVIDIA CORPORATION,
a Delaware corporation ("Sublessee").
The parties enter into this Amendment based upon the following facts,
understanding and intentions:
A. Sublessor currently leases approximately 59,885 rentable square feet of
space (the "Premises") at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ pursuant to
that certain Lease Agreement dated November 7, 1983 between Oakmead Investments,
as landlord, and Sublessor, as tenant.
B. Sublessor and Sublessee are now parties to that certain Sublease
Agreement, dated February 2, 1995 as amended by an Amendment No. 1 to Sublease
dated March 1, 1995 and an Amendment No. 2 to Sublease effective as of September
1, 1995 (as amended, the "Sublease") for the use of approximately 34,251
rentable square feet of space, but by agreement, charged as 33,026 rentable
square feet of space (the "Sublet Space") in the Premises.
C. Sublessor and Sublessee desire to extend the Term of the Sublease.
D. The parties hereto desire to modify the Sublease as hereinafter
provided. Capitalized terms used herein shall have the same meaning given them
in the Sublease, unless otherwise defined herein.
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants and promises of
the parties, the parties hereto agree as follows:
1. EXTENSION OF TERM. Effective as of September 1, 1997, the Term of the
Sublease shall be extended for an additional period of one (1) year, such that
the Term of the Sublease shall expire on August 31, 1998. The gross rent due
from Sublease during such extension period shall be Sixty-Two Thousand Four
Hundred Nineteen and 14/100 Dollars ($62,419.14) per month.
2. ELIMINATION OF OPTIONS TO EXTEND. Sublessee shall have no option or
ability whatsoever to extend the Term of the Sublease beyond August 31, 1998. In
connection therewith, Section 1.2 of the Sublease is hereby deleted in its
entirety.
3. ELIMINATION OF RIGHT OF FIRST NEGOTIATION. The right of first
negotiation granted Sublessee in Section 1.3 of the Sublease is hereby
eliminated.
4. LETTER OF CREDIT. Notwithstanding anything to the contrary in Section 6
of the Sublease, the amount of the Letter of Credit to be deposited with
Sublessor upon execution of this Amendment shall be One Hundred Fifty Thousand
Dollars ($150,000). The amount of the Letter of Credit shall be reviewed by
Sublessor at that time in the sole discretion of Sublessor.
1.
5. FULL FORCE AND EFFECT. Except as herein amended and supplemented, the
Sublease shall continue in full force and effect as written.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment with
duplicate counterparts as of the day and year first above written.
"SUBLESSOR"
▇▇▇▇▇▇ Corporation,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Director, Corporate Real Estate
"SUBLESSEE"
NVidia Corporation,
A Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ Whitaire
------------------------------------
Name: ▇▇▇▇▇▇▇ Whitaire
----------------------------------
Title: VP of Corporate Engineering
---------------------------------
2.