SUB-SUBLEASE BETWEEN ORACLE USA, INC. AND OCZ TECHNOLOGY GROUP, INC.
Exhibit 10.8
Approved as to Legal Form
BETWEEN
ORACLE USA, INC.
AND
OCZ TECHNOLOGY GROUP, INC.
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THIS SUB-SUBLEASE (“Sublease”) is entered into as of January 30, 2009, by and between ORACLE USA,
INC., a Colorado corporation (“Sublandlord”) and OCZ TECHNOLOGY GROUP, INC., a Delaware corporation
(“Subtenant”), with reference to the following facts:
A. Pursuant to that certain Sublease Agreement dated as of May 9, 2003 (the
“Master Sublease”), Nortel Networks Inc. (“Master Sublandlord”), as
sublandlord, subleases
to Sublandlord (successor in interest to Agile Software Corporation), as subtenant, certain
space (the “Master Sublease Premises”) consisting of the entire 82,144 rentable square
foot, two-story building located at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ in the city of San Jose, California (the
“Building”). Capitalized terms used and not defined herein will have the meaning given them in
the Master Sublease. Landlord consented to the Master Sublease pursuant to a document entitled
“Landlord’s Consent to Sublease” executed by Master Landlord, Master Sublandlord, and
Sublandlord’s predecessor (the “Master Sublease Consent”).
B. Subtenant wishes to sublease from Sublandlord, and Sublandlord wishes
to sublease to Subtenant, a portion of the Master Sublease Premises containing approximately
41,000 rentable square feet consisting of the entire first (1st) floor of the Building, said
space being more particularly identified and described on the floor plan attached hereto as
Exhibit A and incorporated herein by reference (the “Subleased Premises”).
NOW, THEREFORE, in consideration of the foregoing recitals which are
incorporated herein by reference, and for other good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged by the parties, Sublandlord and Subtenant hereby
agree as follows:
1. Sublease. Sublandlord hereby subleases to Subtenant and Subtenant
hereby subleases from Sublandlord for the term, at the rental, and upon all of the conditions
set forth herein, the Subleased Premises.
2. Term.
2.1 Generally. The term of this Sublease (“Term”) shall commence on the date (the
“Commencement Date”) that is the later to occur of (x) March 1, 2009 and (y) the date that
Sublandlord delivers possession of the Subleased Premises to Subtenant and (z) the date upon which
Sublandlord procures Master Sublandlord’s and Master Landlord’s written consent to this Sublease
in form and substance reasonably acceptable to Sublandlord and Subtenant (the “Consents”, and the
date upon which Sublandlord procures the Consents and delivers copies of same to Subtenant being
the “Effective Date”) and end on July 31, 2011 (the “Expiration Date”), unless sooner terminated
pursuant to any provision hereof. Sublandlord and Subtenant agree to cooperate in good faith in an
effort to procure mutually acceptable forms of the Consents. Upon the determination of the
Commencement Date, Sublandlord and Subtenant will enter into a letter agreement in the form of
Exhibit B attached hereto. If the Effective Date has not occurred as of February 28, 2009 (the
“Outside Consent Date”), then either party shall have the right to terminate this Sublease by
giving written notice to the other on or before the earlier to occur of (x) March 10, 2009 and (y)
the Effective Date.
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2.2 Early Access. Subtenant and Subtenant’s representatives shall have the right to
enter the Subleased Premises from and after the date of mutual execution and delivery of this
Sublease (the date upon which Subtenant first has such access to the Subleased Premises being
referred to herein as the “Early Access Date”) for the sole purposes of installation of Subtenant’s
personal property and equipment, furniture, fixtures and voice and data cabling, all subject to the
terms, conditions and requirements of the Master Sublease; in no event will Subtenant perform work
which requires the procurement of a construction permit prior to the Effective Date. All of the
rights and obligations of the parties under this Sublease (other than Subtenant’s obligation to pay
Base Rent and the cost of utilities under Section 3.3, but expressly including without limitation,
Subtenant’s obligation to carry (and provide evidence of) insurance pursuant to the Master
Sublease, and Subtenant’s indemnification obligations) shall commence upon the Early Access Date.
Subtenant shall coordinate such entry with Sublandlord. Notwithstanding the foregoing to the
contrary, if either (i) Landlord or Master Sublandlord require that Subtenant vacate the Subleased
Premises or (ii) cease its installations until the Effective Date has occurred, Subtenant shall
promptly comply with any such requirement. Additionally, if either party hereto terminates this
Sublease pursuant to the provisions of Section 2.1 above, Subtenant shall promptly remove from the
Subleased Premises any personal property, equipment, furniture, fixtures and/or voice or date
cabling previously installed by Subtenant in the Subleased Premises and repair any portion of the
Subleased Premises damaged or otherwise altered as a result of such installation, all at
Subtenant’s sole cost and expense.
3. Rent.
3.1 Rent Payments.
(a) Generally. From and after the Commencement Date
Subtenant shall pay to Sublandlord as base rent for the Subleased Premises during the Term (“Base
Rent”) the following:
| Monthly Base Rent | ||||
| Period | Per Rentable Square Foot | Monthly Base Rent | ||
| Commencement Date — February 28, 2010 | $0.74 | $30,340.00 | ||
| March 1, 2010 — February 28, 2011 | $0.76 | $31,160.00 | ||
| March 1, 2011 — July 31, 2011 | $0.78 | $31,980.00 |
Base Rent shall be paid on the first day of each month of the Term, except that Subtenant shall
pay the first month’s Base Rent to Sublandlord upon execution of this Sublease and delivery of
this Sublease to Sublandlord; said pre-paid Base Rent will be applied to the first (1st) full
calendar month’s Base Rent due and payable hereunder; for avoidance of doubt, if the Commencement
Date is other than the first (1st) day of a calendar month, then Subtenant shall pay to
Sublandlord, on or before the Commencement Date, a fractional payment of monthly Base Rent, for
the partial calendar month in which the Commencement Date occurs. If the Term does not begin on
the first day of a calendar month or end on the last day of a month, the Base Rent and Additional
Rent (hereinafter defined) for any partial month shall be prorated by multiplying the monthly Base
Rent and Additional Rent by a fraction, the numerator of which is the number of days of the
partial month included in the Term and the denominator of which is the total number of days in the
full calendar month. All Rent (hereinafter defined) shall be payable in
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lawful money of the United States, by regular bank check of Subtenant, to Sublandlord at the
following address:
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Attn: Lease Administration
or to such other persons or at such other places as Sublandlord may designate in writing. If the
Consents are not obtained, all prepaid rent and the Security Deposit (defined in Section 4
below) shall be promptly refunded to Subtenant.
(b) Abatement. Notwithstanding anything in Section 3(a)
above to the contrary, so long as Subtenant is not in default (taking into account all applicable
notice and grace periods) under this Sublease, Subtenant shall be entitled to an abatement of
Base Rent for the second (2nd) through sixth (6th) full calendar months of the Term (the “Base
Rent Abatement Period”). The total amount of Base Rent abated during the Base Rent Abatement
Period is referred to herein as the “Abated Base Rent”. If Subtenant defaults hereunder (taking
into account all applicable notice and grace periods) at any time prior to the expiration of the
Base Rent Abatement Period, there will be no further abatement of Base Rent pursuant to this
Section 3.1(b). During the Base Rent Abatement Period, only Base Rent shall be abated, and all
Additional Rent and other costs and charges specified in this Sublease shall remain as due and
payable pursuant to the provisions of this Sublease.
3.2 Operating Costs.
(a) Definitions. For purposes of this Sublease and in addition
to the terms defined elsewhere in this Sublease, the following terms shall have the meanings
set forth below:
(i) “Additional Rent” shall mean the sums payable pursuant to Section 3.2(b) below.
(ii) “Base Year” shall mean the calendar year 2009.
(iii) “Operating Costs” shall mean all components of
expenses payable by Sublandlord pursuant to Section 2.4 of the Master Sublease, to the extent
accruing during the Term other than the utilities costs described in Section 3.3 below,
but will not include Base Monthly Rent payable under the Master Lease. By way of illustration,
but not limitation, Operating Costs include, to the extent accruing during the Term (i) any
Reimbursable Operating Costs (as defined in Section 8.D of the Master Lease) and (ii) the costs
incurred to perform maintenance of the Building and surrounding property pursuant to Section 8.8
of the Master Lease, as the same is incorporated by reference in the Master Sublease.
(iv) “Rent” shall mean, collectively, Base Rent,
Additional Rent, and all other sums payable by Subtenant to Sublandlord under this Sublease,
whether or not expressly designated as “rent”, all of which are deemed and designated as rent
pursuant to the terms of this Sublease.
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(v) “Subtenant’s Percentage Share” shall mean 49.9%.
Subtenant’s Percentage Share has been obtained by dividing the Rentable Area of the Subleased
Premises by the Rentable Area of the Master Sublease Premises and multiplying such quotient by
100. In the event Subtenant’s Percentage Share is changed during a calendar year by reason of a
change in the rentable area of the Subleased Premises made pursuant to this Sublease (for example,
but not by limitation, in the event that the Subleased Premises is expanded pursuant to either an
Occupancy Notice delivered by Sublandlord or an Expansion Notice delivered by Subtenant, as
described in Section 5.2 below), Subtenant’s Percentage Share shall thereupon be adjusted to equal
the result obtained by dividing the rentable area of the Subleased Premises by the rentable area
of the Master Sublease Premises and multiplying such quotient by 100. Subtenant’s Percentage Share
shall be determined on the basis of the number of days during such calendar year at each such
percentage share.
(b) Payment of Additional Rent. In addition to the Base Rent
payable pursuant to Section 3.1 above, from and after the expiration of the Base Year, for each
calendar year of the Term, Subtenant, as Additional Rent, shall pay Subtenant’s Percentage Share
of the amount by which Operating Costs payable by Sublandlord for the then current calendar year
exceed Base Operating Costs. Sublandlord shall give Subtenant written notice of Sublandlord’s
estimate of the amount of Additional Rent per month payable pursuant to this Section 3.2(b) for
each calendar year after the Base Year promptly following the Sublandlord’s receipt of Landlord’s
estimate of the Operating Costs payable under the Master Lease. Thereafter, the Additional Rent
payable pursuant to this Section 3.2(b) shall be determined and adjusted in accordance with the
provisions of Section 3.2(c) below.
(c)
Procedure. The determination and adjustment
of Additional Rent payable hereunder shall be made in accordance with the following procedures:
(i)
Delivery of Estimate; Payment. Upon receipt of a
statement from Master Sublandlord and/or Master Landlord specifying the estimated Operating Costs
to be charged to Sublandlord under the Master Lease with respect to each calendar year, or as soon
after receipt of such statement as practicable, Sublandlord shall give Subtenant written notice of
its estimate of Additional Rent payable under Section 3.2(b) for the ensuing calendar year, which
estimate shall be prepared based on the estimate received from Master Sublandlord and/or Master
Landlord (as such estimates may change from time to time), together with a copy of the statement
received from Master Sublandlord and/or Master Landlord and copies of any invoices or other
documentation delivered or required to be provided by Master Sublandlord or Master Landlord. On or
before the first day of each month during each calendar year, Subtenant shall pay to Sublandlord
as Additional Rent one-twelfth (1/12th) of Subtenant’s Percentage Share of such estimated amount
together with the Base Rent.
(ii) Sublandlord’s Failure to Deliver Estimate.
In the event Sublandlord’s notice set forth in Subsection
3.2(c)(1) is not given on or before December
of the calendar year preceding the calendar year for which Sublandlord’s notice is applicable, as
the case may be, then until the calendar month after such notice is
delivered by Sublandlord, Subtenant shall continue to pay to Sublandlord monthly, during the ensuing calendar year,
estimated payments equal to the amounts payable hereunder during the calendar year just ended.
Upon receipt of any such post-December notice Subtenant shall (i) commence as of the immediately
following calendar month, and continue for the remainder of the calendar year, to
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pay to Sublandlord monthly such new estimated payments and (ii) if the monthly installment of the
new estimate of such Additional Rent is greater than the monthly installment of the estimate for
the previous calendar year, pay to Sublandlord within thirty (30) days of the receipt of such
notice an amount equal to the difference of such monthly installment multiplied by the number of
full and partial calendar months of such year preceding the delivery of such notice.
(d) Year End Reconciliation. Within thirty (30) days after
the receipt by Sublandlord of a final statement of Operating Costs from Landlord with respect to each
calendar year, Sublandlord shall deliver to Subtenant a statement of the adjustment to be made
pursuant to Section 3.2 above for the calendar year just ended, together with a copy of any
corresponding statement received by Sublandlord from Landlord. If on the basis of such statement
Subtenant owes an amount that is less than the estimated payments actually made by Subtenant for
the calendar year just ended, Sublandlord shall credit such excess to the next payments of Rent
coming due or, if the term of this Sublease is about to expire, promptly refund such excess to
Subtenant. If on the basis of such statement Subtenant owes an amount that is more than the
estimated payments for the calendar year just ended previously made by Subtenant, Subtenant shall
pay the deficiency to Sublandlord within thirty (30) days after delivery of the statement from
Sublandlord to Subtenant.
(e) Survival. The expiration or earlier termination of
this Sublease shall not affect the obligations of Sublandlord and Subtenant pursuant to Subsection
3.2(d), and such obligations shall survive, remain to be performed after, any expiration or earlier
termination of this Sublease.
3.3 Utilities. From and after the Commencement Date until the later
to occur of (a) expiration of the Term or prior termination of this Sublease and (b) Subtenant’s
vacation of the Subleased Premises, Subtenant shall be responsible for all utilities costs
(electricity, natural gas, janitorial service, water, garbage, etc.) incurred at the Building, and
Subtenant shall pay such costs directly to the utility companies and/or vendors supplying such
services. Where possible, Subtenant shall cause all accounts with the utilities or vendors
providing such services to be transferred to Subtenant’s name; if and to the extent that any such
service or utility is billed to Sublandlord, Sublandlord shall invoice Subtenant for the cost of
any such service and Subtenant shall pay such amount to Sublandlord within thirty (30) business
days following delivery of any such invoice. Subtenant expressly acknowledges that Subtenant is,
pursuant to the provisions of this Section 3.3, responsible for all utility costs associated with
the Building, as opposed to Subtenant’s Percentage Share of such cost.
4. Security Deposit. Concurrently with Subtenant’s execution of this Sublease,
Subtenant shall deposit with Sublandlord the sum of $31,160.00 (the “Security Deposit”). The
Security Deposit shall be held by Sublandlord as security for the faithful performance by
Subtenant of all the provisions of this Sublease to be performed or observed by Subtenant. If
Subtenant defaults in its obligation to pay Rent or other sums due hereunder, or otherwise
defaults with respect to any provisions of this Sublease and fails to cure such default within
the applicable cure period, Sublandlord may use, apply or retain all or any portion of the
Security Deposit for the payment of any rent or other sum in default or for the payment of any
other sum to which Sublandlord may become obligated by reason of Subtenant’s default, or to
compensate Sublandlord for any loss or damage which Sublandlord may suffer thereby. If
Sublandlord so uses or applies all or any portion of the Security Deposit, Subtenant shall within
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ten (10) days after demand therefor deposit cash with Sublandlord in an amount sufficient to
restore the Security Deposit to the full amount thereof and Subtenant’s failure to do so shall be a
material breach of this Sublease. If Subtenant performs all of Subtenant’s obligations hereunder,
the Security Deposit, or so much thereof as has not theretofore been applied by Sublandlord, shall
be returned, without interest, to Subtenant (or, at Sublandlord’s option, to the last assignee, if
any, of Subtenant’s interest hereunder) following the expiration of the Term, and after Subtenant
has vacated the Subleased Premises. No trust relationship is created herein between Sublandlord and
Subtenant with respect to the Security Deposit. Sublandlord shall not be required to keep the
Security Deposit separate from its other accounts. Subtenant hereby waives any and all rights under
and the benefits of Section 1950.7 of the California Civil Code, and all other provisions of law
now in force or that become in force after the date of execution of this Sublease, to the extent
the same provide that Sublandlord may claim from a security deposit only those sums reasonably
necessary to remedy defaults in the payment of Rent, to repair damage caused by Subtenant, or to
clean the Subleased Premises. Sublandlord and Subtenant agree that Sublandlord may, in addition,
claim those sums reasonably necessary to compensate Sublandlord for any other foreseeable or
unforeseeable loss or damage caused by the act or omission of Subtenant or Subtenant’s officers,
agents, employees, independent contractors, or invitees.
5. Use and Occupancy.
5.1 Use. The Subleased Premises shall be used and occupied only for
uses permitted under the Master Sublease, and for no other use or purpose.
5.2 Second Floor.
(a) The Subleased Premises do not include any portion of the second (2nd) floor of the
Building (“Second Floor”). Attached hereto as
Exhibit A-1, is a floor plan of the Second Floor,
divided into eight (8) quadrants, each of approximately 5,000 rentable square feet (each, a
“Quadrant”). Sublandlord shall not construct a barrier restricting Subtenant’s access to the
Second Floor, and while Subtenant and Subtenant’s employees shall have the right to walk through
the Second Floor and to the extent necessary to perform maintenance or repairs, Subtenant shall
have no right to use any portion of the Second Floor for any other purpose whatsoever (including,
without limitation, for meetings, storage of personal property or materials, as a “break” or
“lunch” area, or otherwise).
(b) Sublandlord’s Occupancy Notice. Sublandlord shall have
the right, without notice to Subtenant, to periodically enter the Building to determine whether
Subtenant is in compliance with the provisions of this Section 5.2 restricting Subtenant’s ability
to use the Second Floor. If, as a result of any such inspection by Sublandlord, Sublandlord
determines that Subtenant is using all or any portion of any Quadrant in a manner that is
inconsistent with the restrictions described in this Section 5.2, Sublandlord shall provide
written notice to Subtenant (“Occupancy Notice”) specifying the unpermitted use. With respect to
the first (1st) Occupancy Notice delivered by Sublandlord, if Subtenant fails to cease the use of
such Quadrant(s) within three (3) calendar days following delivery of the Occupancy Notice, the
Subleased Premises shall be expanded to include the Quadrant(s) that Subtenant is so using.
However, with respect to any subsequent Occupancy Notice, the delivery of such Occupancy Notice by
Sublandlord shall serve to automatically expand the Subleased Premises to include the Quadrant(s)
that Subtenant is so using.
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(c) Subtenant’s Expansion Right. Sublandlord agrees that, so
long as Subtenant is not in default hereunder (i.e., beyond the giving of applicable notice and the
passage of applicable grace periods), Sublandlord shall not sublease any portion of the Second
Floor to any third party or permit any portion thereof or be used or occupied by any other person.
If Subtenant desires to occupy all or any portion of the Second Floor, Subtenant may give
Sublandlord written notice, setting forth in such notice a description of the Quadrant(s) which
Subtenant desires to occupy (“Expansion Notice”). If Subtenant delivers an Expansion Notice, the
Quadrant(s) specified in such Expansion Notice shall be added to and become a part of the Subleased
Premises from the date which is the earlier to occur of (i) the date, if any, specified in
Subtenant’s Expansion Notice and (ii) the date that is thirty (30) days following delivery of the
Expansion Notice to Sublandlord.
(d) Effect of Expansion. In the event of any expansion of the
Subleased Premises pursuant to this Section 5.2 (whether triggered by Sublandlord’s Occupancy
Notice or Subtenant’s Expansion Notice), the applicable Quadrant(s) will be added to become a part
of the Subleased Premises on the same terms and conditions (i.e., same Base Rent rate per square
foot, etc.) as the initial Subleased Premises.
5.3 Compliance with Master Sublease. Subtenant agrees that it will
occupy the Subleased Premises in accordance with the terms of the Master Sublease and will not
suffer to be done or omit to do any act during the Term within the Subleased Premises which
may result in a violation of or a default under any of the terms and conditions of the Master
Sublease, or render Sublandlord liable for any damage, charge or expense thereunder. Subtenant
further covenants and agrees to indemnify Sublandlord against and hold Sublandlord harmless
from any claim, demand, action, proceeding, suit, liability, loss, judgment, expense
(including attorneys fees) and damages of any kind or nature whatsoever arising out of, by reason of, or
resulting from, Subtenant’s failure to perform or observe during the Term within the Subleased
Premises any of the terms and conditions of the Master Sublease or this Sublease, during the
Term, except for those obligations and other terms and conditions that Sublandlord is required
by the terms of this Sublease to perform. Sublandlord further covenants and agrees to indemnify
Subtenant against and hold Sublandlord harmless from any claim, demand, action, proceeding,
suit, liability, loss, judgment, expense (including attorneys’ fees) and damages of any kind
or nature whatsoever arising out of, by reason of, or resulting from, Sublandlord’s failure to
perform or observe any of the terms and conditions of the Master Lease, the Master Sublease or
this Sublease (unless and to the extent that any such failure is due to Subtenant’s failure to
comply with the provisions of this Sublease), including without limitation, maintenance, repairs
and restoration work to the extent such obligations are delegated to Sublandlord.
5.4 Maintenance. Pursuant to the provisions of the Master Sublease,
Sublandlord is responsible for certain maintenance, repair and restoration obligations with
respect to the Building, as described in Sections 8.B and 6.B of the Master Lease (said
Sections 8.B and 6.B being incorporated by reference into the terms of the Master Sublease).
Sublandlord shall continue to perform the maintenance and other obligations described in Sections 8.B and
6.B of the Master Lease, except that Subtenant shall be responsible for performing janitorial
services in the Subleased Premises and maintaining interior wall surfaces, floor tiles and
floor coverings in a neat and clean condition. If Sublandlord fails to perform such maintenance
obligations with respect to the Building, Subtenant may deliver notice to Sublandlord of such
failure, specifying in reasonable detail the failure in question and if such failure is not
cured
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within thirty (30) days after the date of delivery of such notice (provided, however, that the
initial thirty (30) day period shall be a five (5) day period in the event of an “Emergency”, as
that term is defined, below); unless Sublandlord in good faith delivers a notice to Subtenant
disputing Subtenant’s claim of failure, Subtenant may perform such maintenance obligations, and the
reasonable cost of such performance which shall promptly be reimbursed by Sublandlord following
delivery by Subtenant of the paid invoices reflecting the costs incurred by Subtenant; provided
that Subtenant will be solely responsible for any damage caused by Subtenant in the performance of
any such work. If Subtenant takes such action, Subtenant shall use only those contractors used by
Sublandlord in the Building for work unless such contractors are unwilling or unable to perform, or
timely perform, such work, in which event Subtenant may utilize the services of any other qualified
contractor which normally and regularly performs similar work in comparable buildings. Promptly
following completion of any work taken by Subtenant pursuant to this Section 5.4, Subtenant shall
deliver a detailed invoice of the work completed, the materials used and the costs relating
thereto. Additionally, if and to the extent that any such failure on the part of Sublandlord to
perform a maintenance obligation required of Sublandlord pursuant to this Section 5.4 prevents
Subtenant from using all or any material portion of the Subleased Premises for Subtenant’s business
operations, and provided that Subtenant’s notice to Sublandlord of such failure clearly states that
Subtenant is being prevented from using and is actually not using, a material portion of the
Subleased Premises, Subtenant shall be afforded an abatement of Base Rent (equitably prorated to
reflect that portion of the Subleased Premises which Subtenant is so prohibited from using and
actually does not use) from and after the date of delivery of such notice until such time as
Sublandlord performs the obligation in question in a manner which allows Subtenant to once again
occupy and use the Subleased Premises (or affected portion thereof). The cost of Sublandlord’s
performance of all such maintenance work will be included in
Operating Costs described in Section
3.2 above. For purposes of this Section 5.4, an “Emergency” shall mean an event threatening
immediate and material danger to people located in the Building or immediate, material damage to
the Building, the Building’s systems, the Building’s structure, or creates a reasonable possibility
of an immediate and material interference with, or immediate and material interruption of a
material aspect of Subtenant’s business operations. Notwithstanding the foregoing to the contrary,
if Subtenant elects to install a server room servicing the Subleased Premises, at Sublandlord’s
option, Subtenant shall be solely responsible for the maintenance and upkeep of all equipment and
infrastructure serving such server room at Subtenant’s sole cost and expense, and Sublandlord shall
have no responsibility therefore, as between Sublandlord and Subtenant.
6. Master Sublease Terms.
6.1 Subject to Master Sublease. This Sublease is and shall be at all times subject
and subordinate to the Master Sublease. Subtenant acknowledges that Subtenant has reviewed and is
familiar with all of the terms, agreements, covenants and conditions of the Master Sublease.
During the Term and for all periods subsequent thereto with respect to obligations which have
arisen prior to the termination of this Sublease, Subtenant agrees to perform and comply with the
obligations of Sublandlord under the Master Sublease which pertain to the Subleased Premises
and/or this Sublease, except for those provisions of the Master Sublease which are directly
contradicted by or clearly inconsistent with this Sublease, in which event the terms of this
Sublease shall control over the Master Sublease.
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6.2 Incorporation of Terms of Master Sublease. The terms, conditions
and respective obligations of Sublandlord and Subtenant to each other under this Sublease
shall
be the terms and conditions of the Master Sublease, except for those provisions of the
Master
Sublease which are directly contradicted by or clearly inconsistent with this Sublease, in
which
event the terms of this Sublease shall control over the Master Sublease. Therefore, for
the
purposes of incorporating the Master Sublease into this Sublease, wherever in the Master
Sublease the word “Sublandlord” is used it shall be deemed to mean Sublandlord and wherever
in the Master Sublease the word “Subtenant” is used it shall be deemed to mean Subtenant.
Unless otherwise provided to the contrary in this Sublease, any non-liability, release,
indemnity
or hold harmless provision in the Master Sublease for the benefit of Master Sublandlord that
is
incorporated herein by reference, shall be deemed to inure to the benefit of Sublandlord,
Master
Sublandlord, Landlord and any other person intended to be benefited by said provision, for
the
purpose of incorporation by reference in this Sublease. Any right of Master Sublandlord
under
the Master Sublease (a) of access or inspection, (b) to do work in the Master Sublease
Premises
or in the Building, (c) in respect of rules and regulations, which is incorporated herein by
reference, shall be deemed to inure to the benefit of Sublandlord, Master Sublandlord,
Landlord
and any other person intended to be benefited by said provision, for the purpose of
incorporation
by reference in this Sublease.
6.3 Modifications. For the purposes of incorporation herein, the terms
of the Master Sublease are subject to the following additional modifications:
(a) Approvals. In all provisions of the Master Sublease (under
the terms thereof and without regard to modifications thereof for purposes of incorporation
into
this Sublease) requiring the approval or consent of Master Landlord and Master
Sublandlord, Subtenant shall be required to obtain the approval or consent of Master
Landlord, Master Sublandlord and Sublandlord. Sublandlord shall not unreasonably withhold,
delay or condition any such approval or consent.
(b) Deliveries. In all provisions of the Master Sublease
requiring Tenant to submit, exhibit to, supply or provide Master Sublandlord with evidence,
certificates, or any other matter or thing, Subtenant shall be required to submit, exhibit to,
supply or provide, as the case may be, the same to both Master Sublandlord and Sublandlord.
(c) Damage; Condemnation. Sublandlord shall have no
obligation to restore or rebuild any portion of the Subleased Premises after any destruction or
taking by eminent domain.
(d) Insurance.
in all provisions of the Master Sublease
requiring Sublandlord to designate Master Sublandlord and/or Master Landlord as an additional or
named insured on its insurance policy, Subtenant shall be required to so designate Master
Landlord, Master Sublandlord and Sublandlord on its insurance policy.
6.4 Exclusions. Notwithstanding the terms of Section 6.2 above,
Subtenant shall have no rights nor obligations under the following parts, Sections and
Exhibits of
the Master Sublease: Article I (except for the sections of Article I captioned “Master
Lease,”
“Master Landlord,” “Building,” “Permitted Uses,” and “Excluded Sections of Master Lease”),
9
Sections 2.1, 2.2, 2.3 (except Section 2.3(c)), 2.7, 2.10, 2.13(f), 2.13(h), 2.17, 2.19, 2.20,
2.22, 2.25.
6.5 Modifications. Notwithstanding the terms of Section 6.2 above, the following
provisions of the Master Lease are modified as described below for the purpose of their
incorporation into this Sublease:
(a) References in Section 2.5(b) to “Sublandlord” and/or
“Master Landlord” shall be deemed references to Sublandlord, Master Sublandlord and Master
Landlord;
(b) In Section 2.6, the reference in line 2 to the “Master Lease”
shall be deemed a reference to the Master Sublease;
(c) In Section 2.9(a), the reference to the consent of Master
Landlord shall be deemed a reference to both Master Sublandlord and Master Landlord, and any deemed
consent of Sublandlord to a proposed assignment or subletting shall not be deemed to bind either
Master Sublandlord or Master Landlord.
(d) References in Section 2.15 to signage on the building
located at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ shall not be applicable to this Sublease.
(e) The references in Section 2.18(b) to “Master Landlord and
the Master Lease” shall be deemed references to Master Sublandlord and the Master Sublease.
6.6 Assignment of Rights Under Master Sublease Consent.
Sublandlord and Subtenant acknowledge that the Master Sublease Consent conferred certain rights
and benefits upon Sublandlord, including without limitation, an agreement by Master Landlord to
recognize and to not disturb Sublandlord in the event of the termination of the Master Lease. To
the extent permitted under the terms of the Master Sublease Consent, Sublandlord hereby assigns to
Subtenant, on a non-exclusive basis, Sublandlord’s rights and benefits under the Master Sublease
Consent, provided that Sublandlord shall have jointly with Subtenant the same rights under the
Master Sublease Consent that are assigned to Subtenant pursuant to this Section 6.6.
Notwithstanding such assignment, Sublandlord and not Subtenant, shall be required to pay the Base
Monthly Rent and Security Deposit and perform all other obligations under the Master Lease if the
Master Lease becomes a direct lease between Master Landlord and Sublandlord. Subtenant shall have
no obligation to perform Sublandlord’s obligations under the Master Sublease Consent. To the
extent that Master Landlord does not recognize the assignment of rights and benefits under this
Section 6.6, Sublandlord shall use commercially reasonable efforts to obtain from Master Landlord,
for Subtenant’s benefit, the rights and benefits conferred under the Master Lease and the Master
Sublease Consent.
7. Assignment and Subletting. Subtenant shall not assign this Sublease or further
sublet all or any part of the Subleased Premises (including, without limitation, any portion of
the Second Floor) except subject to and in compliance with all of the terms and conditions of the
Master Sublease, and Sublandlord (in addition to Master Sublandlord) shall have the same rights
with respect to assignment and subleasing as Master Sublandlord has under the Master Sublease.
Subtenant shall pay all fees and costs payable to Landlord pursuant to the
10
Master Lease in connection with any proposed assignment, sublease or transfer of the Subleased
Premises, together with all of Sublandlord’s reasonable out-of-pocket costs relating to
Subtenant’s request for such consent, regardless of whether such consent is granted, and the
effectiveness of any such consent shall be conditioned upon Master Landlord’s and Sublandlord’s
receipt of all such fees and costs.
8. Remedies. In the event of any default hereunder, by Subtenant,
Sublandlord shall have all remedies provided to the “Sublandlord” in the Master Sublease as if
an event of default had occurred thereunder and all other rights and remedies otherwise
available
at law and in equity. Sublandlord may resort to its remedies cumulatively or in the
alternative.
As used in this Sublease, the term “default” means failure to perform or breach by Subtenant
that
is not cured within the applicable notice and cure period.
9. Right to Cure Defaults. If Subtenant fails to perform any of its obligations
under this Sublease after expiration of applicable grace or cure periods, then Sublandlord
may,
but shall not be obligated to, perform any such obligations for Subtenant’s account. All
reasonable costs and expenses incurred by Sublandlord in performing any such act for the
account of Subtenant shall be deemed Rent payable by Subtenant to Sublandlord upon demand,
together with interest thereon at the lesser of (i) two percent (2%) per annum above the prime
rate of interest that ▇▇▇▇▇ Fargo Bank charges its most credit worthy customers or (ii) the
maximum rate allowable under law (the “Interest Rate”) from the date of the expenditure until
repaid. If Sublandlord undertakes to perform any of Subtenant’s obligations for the account of
Subtenant pursuant hereto, the taking of such action shall not constitute a waiver of any of
Sublandlord’s remedies. Except as expressly set forth herein, Subtenant hereby expressly
waives
its rights under any statute to make repairs at the expense of Sublandlord. If Sublandlord
fails to
perform any of its obligations under the Master Lease, the Master Sublease or this Sublease
after
expiration of applicable grace or cure periods (for purposes of this Sublease, the applicable
grace
period for Sublandlord’s performance of obligations hereunder shall be (x) ten (10) days
following notice with respect to Sublandlord’s obligation to make any payment to Subtenant and
(y) thirty (30) days following notice with respect to any other obligation hereunder), then
Subtenant may, but shall not be obligated to, perform any such obligations for Sublandlord’s
account, all in compliance with the applicable provisions of the Master Sublease, as
applicable.
All costs and expenses incurred by Subtenant in performing any such act for the account of
Sublandlord shall be payable by Sublandlord to Subtenant upon demand, together with interest
thereon at the Interest Rate from the date of the expenditure until repaid. If Subtenant
undertakes
to perform any of Sublandlord’s obligations for the account of Sublandlord pursuant hereto,
the
taking of such action shall not constitute a waiver of any of Subtenant’s remedies.
Sublandlord
hereby expressly waives its rights under any statute to make repairs at the expense of
Subtenant.
10. Sublandlord’s Liability. Except as otherwise provided in this Sublease,
the liability of Sublandlord to Subtenant for any default in Sublandlord’s obligations under
this
Sublease shall be limited to actual, direct damages, and under no circumstances shall
Subtenant,
its partners, members, shareholders, directors, agents, officers, employees,
contractors,
sublessees, successors and/or assigns be entitled to recover from Sublandlord (or otherwise be
indemnified by Sublandlord) for (a) any losses, costs, claims, causes of action, damages or
other
liability incurred in connection with a failure of Master Landlord or Master Sublandlord,
their
respective partners, members, shareholders, directors, agents, officers, employees,
contractors,
successors and /or assigns to perform or cause to be performed any obligations under the
Master
11
Lease or Master Sublease, (b) lost revenues, lost profit or other consequential, special or
punitive damages arising in connection with this Sublease for any reason, or (c) any damages or
other liability arising from or incurred in connection with the condition of the Subleased Premises
or suitability of the Subleased Premises for Subtenant’s intended uses. Subtenant shall, however,
have the right to seek any injunctive or other equitable remedies as may be available to Subtenant
under applicable law. Notwithstanding any other term or provision of this Sublease, no personal
liability shall at any time be asserted or enforceable against Sublandlord’s stockholders,
directors, officers, or partners on account of any of Sublandlord’s obligations or actions under
this Sublease. In the event of any assignment or transfer of the Sublandlord’s interest under this
Sublease, which assignment or transfer may occur at any time during the Term in Sublandlord’s sole
discretion, upon the written assumption by the transferee of Sublandlord’s obligations hereunder,
Sublandlord shall be and hereby is entirely relieved of all covenants and obligations of
Sublandlord hereunder accruing subsequent to the date of the transfer and it shall be deemed and
construed, without further agreement between the parties hereto, that any transferee has assumed
and shall carry out all covenants and obligations thereafter to be performed by Sublandlord
hereunder. Sublandlord may transfer and deliver any then existing Security Deposit to the
transferee of Sublandlord’s interest under this Sublease, and upon the written assumption by the
transferee of Sublandlord’s obligations hereunder, Sublandlord shall be discharged from any further
liability with respect thereto.
11. Subtenant’s Liability. Except as set forth in Section 14 below and with
respect to Subtenant’s obligations, pursuant to Section 12.B of the Master Lease, as
incorporated
into the Master Sublease and this Sublease, to indemnify Sublandlord, Master Sublandlord and
Landlord regarding Hazardous Materials, in no event will Subtenant be liable to Sublandlord
hereunder for lost revenues, lost profit or other consequential, special or punitive damages
arising in connection with this Sublease for any reason.
12. Attorneys’ Fees. If Sublandlord or Subtenant brings an action to enforce
the terms hereof or to declare rights hereunder, the prevailing party who recovers
substantially
all of the damages, equitable relief or other remedy sought in any such action on trial and
appeal
shall be entitled to receive from the other party its costs associated therewith, including,
without
limitation, reasonable attorney’s fees and costs from the other party.
13. Delivery of Possession.
13.1 Generally. Sublandlord represents that to Sublandlord’s knowledge, the following
are in good working order and repair (i) all plumbing and sewerage facilities, (ii) all
mechanical, heating, ventilating and air conditioning facilities and equipment, (iii) all
fixtures, interior walls, floors, carpets and ceilings, (iv) all windows, door entrances, plate
glass and glazing systems including caulking and skylights, (v) all electrical facilities and
equipment, (vi) all fire extinguisher equipment, (vii) the parking lot and all underground utility
facilities servicing the Subleased Premises, (viii) all elevator equipment, (ix) the roof,
including without limitation, the roof membrane, and (x) all waterscape, landscaping and
shrubbery. Except as provided in the immediately preceding sentence, Sublandlord shall deliver,
and Subtenant shall accept, possession of the Subleased Premises in their “AS IS” condition as the
Subleased Premises exists on the date hereof. Except as expressly set forth in this Sublease to
the contrary, Sublandlord shall have no obligation to furnish, render or supply any work, labor,
services, materials, furniture (other than the Furniture, defined below), fixtures, equipment,
12
decorations or other items to make the Subleased Premises ready or suitable for Subtenant’s
occupancy. In making and executing this Sublease, Subtenant has relied solely on such
investigations, examinations and inspections as Subtenant has chosen to make or has made and has
not relied on any representation or warranty concerning the Subleased Premises or the Building,
except as expressly set forth in this Sublease. Subtenant acknowledges that Sublandlord has
afforded Subtenant the opportunity for full and complete investigations, examinations and
inspections of the Subleased Premises and the common areas of the Building. Subtenant acknowledges
that it is not authorized to make or do any alterations or improvements in or to the Subleased
Premises except as permitted by the provisions of this Sublease and the Master Sublease. At
Subtenant’s cost, on or before the expiration of this Sublease, Subtenant will remove all
telecommunications and data cabling installed by or for the benefit of Subtenant, during the Term.
13.2 Subtenant’s Improvements.
(a) Generally. Sublandlord acknowledges that Subtenant
intends to construct certain improvements within the Subleased Premises, inclusive of the
construction of warehouse areas (“Subtenant Improvements”). All Subtenant Improvements shall be
carried out in accordance with the Master Sublease. Sublandlord will have the right to
approve the plans and specifications for any proposed Subtenant Improvements (not to be
unreasonably withheld or delayed), as well as any contractors whom Subtenant proposes to retain to
perform such work. Accordingly, Subtenant will submit all such information for Sublandlord’s
review and written approval prior to commencement of any such work. Subtenant expressly
acknowledges that Master Landlord and/or Master Sublandlord may require Subtenant
to remove some or all of the Subtenant Improvements at the expiration or sooner termination of
the Term. Promptly following the completion of any Subtenant Improvements or subsequent
alterations or additions by or on behalf of Subtenant, Subtenant will deliver to Sublandlord a
reproducible copy of “as built” drawings of such work together with a CAD file of the “as-built”
drawings in the then-current version of AutoCad.
(b) Code-Required Work. If the performance of any Subtenant
Improvements or other work by Subtenant within the Subleased Premises “triggers” a requirement for
code-related upgrades to or improvements of any portion of the Building, Subtenant shall be
responsible for the cost of such code-required upgrade or improvements.
14. Holding Over. At the expiration or sooner termination of this Sublease,
Subtenant shall deliver the Subleased Premises to Sublandlord, broom clean, in substantially the
same condition and repair existing as of the commencement of the Term of this Sublease
(reasonable wear and tear and the performance of Sublandlord’s maintenance and repair obligations
as expressly set forth herein excepted). If Subtenant fails to surrender the Subleased Premises
at the expiration or earlier termination of this Sublease, occupancy of the Subleased Premises
after the termination or expiration shall be that of a tenancy at sufferance. Subtenant’s
occupancy of the Subleased Premises during the holdover shall be subject to all the terms and
provisions of this Sublease and Subtenant shall pay an amount (on a per month basis without
reduction for partial months during the holdover) equal to 150% of the sum of the Base Rent and
Additional Rent due for the period immediately preceding the holdover. No holdover by Subtenant
or payment by Subtenant after the expiration or early termination of this Sublease shall be
construed to extend the Term or prevent Sublandlord from immediate recovery of
13
possession of the Subleased Premises by summary proceedings or otherwise. In addition to the
payment of the amounts provided above, if Sublandlord is unable to deliver possession of the
Subleased Premises to a new subtenant or to Master Sublandlord or Master Landlord, as the case may
be as a result of Subtenant’s holdover or perform improvements, Subtenant shall be liable to
Sublandlord for all damages, including, without limitation, consequential damages, that Sublandlord
suffers from the holdover; Subtenant expressly acknowledges that such damages may include all of
the holdover rent charged by Master Sublandlord under the Master Sublease as a result of
Subtenant’s holdover, which Master Sublease holdover rent may apply to the entire Building.
Sublandlord acknowledges that it is responsible for the performance of the obligations set forth in
Section 6.B of the Master Lease and Sublandlord further covenants and agrees to perform such
obligations at its sole cost and expense (without reimbursement from Subtenant as Additional Rent
or otherwise) and indemnify Subtenant against and hold Sublandlord harmless from any claim, demand,
action, proceeding, suit, liability, loss, judgment, expense (including attorneys’ fees) and
damages of any kind or nature whatsoever arising out of, by reason of, or resulting from,
Sublandlord’s failure to comply with Section 6.B of the Master Lease, except to the extent that any
such failure to comply arises out of damage to the Premises caused by Subtenant’s acts or omissions
(including, without limitation, Subtenant’s failure to comply with its obligations set forth in the
first (1st) sentence of this Section 13) whether through the removal of improvements by Subtenant
or otherwise.
15. Parking. During the Term Subtenant shall be permitted to use all of the
parking spaces allocated to Sublandlord in the Master Sublease.
16. Notices: Any notice by either party to the other required, permitted or
provided for herein shall be valid only if in writing and shall be deemed to be duly given
only if
(a) delivered personally, or (b) sent by means of Federal Express, UPS Next Day Air or another
reputable express mail delivery service guaranteeing next day delivery, or (c) sent by United
States certified or registered mail, return receipt requested, addressed: (i) if to
Sublandlord, at the
following addresses:
Oracle USA, Inc.
c/o Oracle Corporation
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Lease Administration
c/o Oracle Corporation
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Lease Administration
with a copy to:
Oracle USA, Inc.
c/o Oracle Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Legal Department
c/o Oracle Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Legal Department
14
and (ii) if to Subtenant, at the
following addresses:
Prior to Commencement Date:
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Counsel
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Counsel
From and after Commencement Date:
At the Subleased Premises
Attn: General Counsel
Attn: General Counsel
or at such other address for either party as that party may designate by notice to the other. A
notice shall be deemed given and effective, if delivered personally, upon hand delivery thereof
(unless such delivery takes place after hours or on a holiday or weekend, in which event the
notice shall be deemed given on the next succeeding business day), if sent via overnight
courier, on the business day next succeeding delivery to the courier, and if mailed by United
States certified or registered mail, upon receipt.
17. Furniture. During the Term, at no charge to Subtenant, Subtenant shall be
permitted to use the existing modular and office furniture and cabling located in the
Subleased
Premises and described in more particular detail in Exhibit C attached hereto (the
“Furniture”).
The Furniture consists of all of the furniture located on the first (1st) floor and the
Second Floor;
Subtenant will have the right, at Subtenant’s cost, to relocate items of Furniture between the
first (1st) floor and the Second Floor, but, in accordance with Section 5.2 above, Subtenant
will not have the right to use any Furniture while it is located on the Second Floor.
Subtenant shall accept the Furniture in its current condition without any warranty of fitness
from Sublandlord (Subtenant expressly acknowledges that no warranty is made by Sublandlord
with respect to the condition of any cabling currently located in or serving the Subleased
Premises); for purposes of documenting the current condition of the Furniture, Subtenant and
Sublandlord shall, prior to the Commencement Date, conduct a joint walk-through of the
Subleased Premises in order to inventory items of damage or disrepair in the Furniture.
Provided Subtenant is not in default hereunder as of the expiration of the Term, Sublandlord
shall transfer ownership of the Furniture to Subtenant for a purchase price equal to $10.00.
Sublandlord shall deliver a ▇▇▇▇ of sale to Subtenant, transferring ownership of all of the
Furniture to Subtenant effective as of the Expiration Date, and Subtenant shall be solely
responsible for the timely removal of the Furniture from the Subleased Premises and, the
Second Floor in accordance with the provisions of the Master Sublease.
18. Signage. Subject to the approval of Master Sublandlord and Master
Landlord, and to the procurement of any required consents or approvals of the City of San
▇▇▇▇,
Subtenant may have Sublandlord’s rights to install signage as described in Section 2.15 of
the
Master Sublease. Sublandlord, at Subtenant’s sole cost and expense, agrees to cooperate
with
Subtenant in attempting to procure a consent of Master Sublandlord and Master Landlord to
any
such signage.
15
19. Brokers. Subtenant represents that it has dealt directly with and only with
▇▇▇▇▇▇▇ (“Subtenant’s Broker”), as a broker in connection with this Sublease. Sublandlord
represents that it has dealt directly with and only with Colliers International
(“Sublandlord’s
Broker”), as a broker in connection with this Sublease. Sublandlord and Subtenant shall
indemnify and hold each other harmless from all claims of any brokers other than Subtenant’s
Broker and Sublandlord’s Broker claiming to have represented Sublandlord or Subtenant in
connection with this Sublease. Subtenant and Sublandlord agree that Subtenant’s Broker and
Sublandlord’s Broker shall be paid commissions by Sublandlord in connection with this Sublease
pursuant to a separate agreement.
20. Complete Agreement. There are no representations, warranties,
agreements, arrangements or understandings, oral or written, between the parties or their
representatives relating to the subject matter of this Sublease which are not fully expressed
in
this Sublease. This Sublease cannot be changed or terminated nor may any of its provisions be
waived orally or in any manner other than by a written agreement executed by both parties.
21. Interpretation. Irrespective of the place of execution or performance, this
Sublease shall be governed by and construed in accordance with the laws of the State of
California. If any provision of this Sublease or the application thereof to any person or
circumstance shall, for any reason and to any extent, be invalid or unenforceable, the
remainder
of this Sublease and the application of that provision to other persons or circumstances shall
not
be affected but rather shall be enforced to the extent permitted by law. The table of
contents,
captions, headings and titles, if any, in this Sublease are solely for convenience of
reference and
shall not affect its interpretation. This Sublease shall be construed without regard to any
presumption or other rule requiring construction against the party causing this Sublease or
any part thereof to be drafted. If any words or phrases in this Sublease shall have been stricken
out or otherwise eliminated, whether or not any other words or phrases have been added, this
Sublease shall be construed as if the words or phrases so stricken out or otherwise eliminated
were never included in this Sublease and no implication or inference shall be drawn from the fact
that said words or phrases were so stricken out or otherwise eliminated. Each covenant,
agreement, obligation or other provision of this Sublease shall be deemed and construed as a
separate and independent covenant of the party bound by, undertaking or making same, not
dependent on any other provision of this Sublease unless otherwise expressly provided. All terms
and words used in this Sublease, regardless of the number or gender in which they are used,
shall be deemed to include any other number and any other gender as the context may require. The
word “person” as used in this Sublease shall mean a natural person or persons, a partnership, a
corporation or any other form of business or legal association or entity.
22. Counterparts. This Sublease may be executed in separate counterparts,
each of which shall constitute an original and all of which together shall constitute one and
the
same instrument. This Sublease shall be fully executed when each party whose signature is
required has signed and delivered to each of the parties at least one counterpart, even though
no
single counterpart contains the signatures of all parties hereto.
16
IN WITNESS WHEREOF, the parties hereto hereby execute this Sublease as of the day and year
first above written.
| SUBLANDLORD: | ORACLE USA, INC., | |||||
| a Colorado corporation |
| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | |||
| Print Name: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | |||
| Title: | VP Real Estate & Facilities | |||
| SUBTENANT: | OCZ TECHNOLOGY
GROUP, INC., a Delaware corporation |
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| Print Name: | ▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| Title: | CEO | |||
17
EXHIBIT A
Subleased Premises
| Valley Oak Technology Campus
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ |
FIRST FLOOR |
1
EXHIBIT A-l
Second Floor Showing Quadrants
1
EXHIBIT B
Commencement Agreement
Date |
||||||
| Subtenant | OCZ TECHNOLOGY GROUP, INC. | |||||
Address |
||||||
| Re: | Commencement Letter with respect to that certain Sub-Sublease dated as , 2009, by and between ORACLE USA, INC., a Colorado corporation, as Sublandlord, and OCZ TECHNOLOGY GROUP, INC., a Delaware corporation, as Subtenant, for approximately 41,000 rentable square feet on the first (1st) floor of the Building located at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇. |
Dear :
In accordance with the terms and conditions of the above referenced Sublease, Subtenant
accepts possession of the Subleased Premises and agrees:
1. The Commencement Date is ;
2. The Base Rent Abatement Period commences as of 1, 2009 and
expires 30/31, 2009.
3. The Expiration Date is .
Please acknowledge your acceptance of possession and agreement to the terms set forth above
by signing all 3 counterparts of this Commencement Letter in the space provided and returning 2
fully executed counterparts to my attention.
Sincerely,
Agreed and Accepted: |
Subtenant:
|
OCZ TECHNOLOGY GROUP, INC. | |
By:
|
[EXHIBIT — DO NOT SIGN] | |
Name:
|
||
Title:
|
||
Date:
|
1
EXHIBIT C
Furniture
| ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇. | 1/30/2009 | |
| Furniture Inventory |
FIRST FLOOR SUMMARY
| QTY. | DECRIPTION | |
137
|
Allsteel Workstations inc. chairs | |
1
|
Allsteel Workstation Bullpen (11) | |
5
|
Bar Stools | |
149
|
Chairs | |
2
|
Couch | |
5
|
Credenza | |
5
|
End Tables | |
119
|
Folding Chairs | |
1
|
Foosball Game | |
2
|
Lab Benches | |
4
|
LCD Projector | |
1
|
Lectern | |
4
|
Liebert CRAC Units | |
2
|
Lounge Chairs | |
8
|
Microwaves | |
1
|
Oval Table | |
1
|
Rack of A/V Equipment | |
1
|
Reception Station — Wood | |
28
|
Rectangular Table | |
4
|
Refrigerators | |
28
|
Round Table | |
62
|
Server Cabinets | |
6
|
Server Racks | |
23
|
Storage Cabinets | |
24
|
Storage Racks | |
3
|
T.V. | |
1
|
T.V. Stand | |
1
|
T.V. with Stand | |
10
|
Tables wired with microphones | |
8
|
4 Drawer Lateral File | |
1
|
Lot Misc. Allsteel Parts | |
1
|
Lot Misc. Prints & Paintings | |
1
|
Security System | |
2
|
UPS Units |
SECOND FLOOR SUMMARY
| QTY. | DECRIPTION | |
147
|
Allsteel Workstations inc. chairs | |
1
|
Large Wood Table w/microphones | |
140
|
Chairs | |
1
|
Couch | |
2
|
Credenza | |
14
|
End Tables | |
2
|
Built in Credenzas | |
1
|
LCD Projector | |
5
|
Lounge Chairs | |
2
|
Oval Table | |
1
|
Rack of A/V Equipment | |
11
|
Rectangular Table | |
2
|
Refrigerators | |
13
|
Round Table | |
10
|
Storage Racks | |
56
|
4 Drawer Lateral File | |
1
|
Lot Misc. Allsteel Parts | |
1
|
Lot Misc. Prints & Paintings |
1