Exhibit 10.8
FACILITIES USE AGREEMENT
This Facilities Use Agreement ("Agreement") is effective as of the 5/th/ day of
April 1999 between Multilink Technology Corporation, a corporation organized
under the laws of the State of California, with offices located at ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter called "Multilink")
and TRW Inc., a corporation organized under the laws of the State of Ohio,
acting through its Telecommunications business unit, having an office at ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter called "TRW").
ARTICLE 1
SUBJECT AND TERM
Original Term
Section 1.01. The term of this Agreement shall commence at 12:01 A.M. on April
5, 1999, and end at 12:0l A.M. August 31, 2000, unless terminated sooner as
provided in this Agreement.
Holding Over
Section 1.02. If Multilink holds over and continues in the Premises after
termination of the term of this Agreement, including any extended term,
Multilink's continued use of the Premises shall be a breach of this Agreement
and Multilink shall be liable to TRW for any and all costs it incurs as a result
of such holdover, including charges assessed against TRW by its landlord under
TRW's lease for the premises.
Premises
Section 1.03. TRW shall lease to Multilink, subject to the terms of this
Agreement, the space known as Room 1849 (Lab) and 1384 (Office) in a building
designated as "DH1" located in the TRW office complex at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ consisting of a total of approximately 3214 square
feet of space, more or less, together with the fixtures thereon (the
"Premises"), as set forth on Exhibit "B" attached hereto. The Premises are part
of a building that is leased by TRW from ▇▇▇▇▇▇ Land Company (the "Landlord")
which lease, if not extended, expires on August 31, 2000. TRW shall provide
Multilink with access to the Premises.
Products and Services
Section 1.04. TRW shall also provide to Multilink, subject to the terms of this
Agreement, the products and services identified in Exhibit A. All prices and
costs to be paid by Multilink are net of taxes, duties, fees or charges
assessed by any governmental authority.
ARTICLE 2
Payments
Section 2.01. (a) Interim Payments. Multilink agrees to pay to TRW during the
term of this Agreement specified in Section 1.01.
ARTICLE 3
REPAIRS AND MAINTENANCE
Present Condition of Premises
Section 3.01. Multilink agrees and hereby stipulates with TRW that the Premises
are in good and acceptable condition on the date of this Agreement and that the
improvements on the premises have been constructed by TRW and made available to
Multilink in good and acceptable condition and in accordance with plans and
specifications approved by Multilink.
Repairs by TRW
Section 3.02. During the term of this Agreement and any renewal or extension of
the term of this Agreement, TRW shall, at TRW's own cost and expense, keep the
exterior roof, sidewalls, structural portions, and foundation of the building in
which the Premises are located (the "Building"), and the building systems and
equipment in good order and repair; provided, however, TRW shall not:
(a) Be required to make any repairs that are rendered necessary by the
negligence of or abuse of that property by Multilink or any employees or
agents of Multilink; or
(b) Be liable for any damages resulting from TRW's failure to make any repairs
required by this section to be made by TRW, unless Multilink gives written
notice to TRW specifying the need for the repairs and TRW fails to make the
repairs or to commence making the repairs within thirty (30) days after
Multilink gives notice or TRW fails to thereafter diligently pursue the
completion of the repairs.
TRW shall not materially interfere with Multilink's use of or access to the
Premises in performing any repairs or maintenance under this Agreement.
Repairs by Multilink
Section 3.03. Except as provided in Section 3.02 of this Agreement, Multilink
shall, at Multilink's own cost and expense, during the term of this Agreement or
any extension of the term of this Agreement:
(a) Keep and maintain the interior, non-structural portions of the Premises in
good order, repair, and tenantable condition, except to the extent caused
by the negligence or willful misconduct of TRW or its employees or agents;
and
(b) Repair any defects in the exterior roof, sidewalls, structural portions,
and foundations of the Building caused by the negligence of or abuse of the
Building by Multilink or any employees, agents or subtenants of Multilink.
2
Multilink Improvements and Trade Fixtures
Section 3.04. (a) On expiration or earlier termination of this Agreement,
Multilink shall surrender the Premises and all improvements thereon to TRW in
good, sanitary, and neat order, condition, and repair, excluding ordinary wear
and tear and casualty damage. Multilink shall have the right to remove its trade
fixtures from the Premises at the expiration or earlier termination of this
Agreement term provided that Multilink shall repair any damage to the Premises
caused by that removal.
Liens
Section 3.05. (a) Multilink agrees to keep the Premises and every part thereof
and the Building and other improvements at any time located on the Premises free
and clear of any and all mechanics', materialmen's, and other liens for or
arising out of or in connection with work or labor done, services performed, or
materials or appliances used or furnished for or in connection with any
operations of Multilink, any alteration, improvement, or repairs or additions
that Multilink may make or permit or cause to be made, or any work or
construction by, for, or permitted by Multilink on or about the Premises, or any
obligations of any kind incurred by Multilink. Multilink further agrees to pay
promptly and fully and discharge any and all claims on which any such lien may
or could be based, and to save and hold TRW and its Landlord and the Premises
and the Building and any other improvements on the Premises free and harmless
from any and all such liens and claims of liens and suits or other proceedings
pertaining thereto.
(b) If Multilink desires to contest any such lien, it shall notify TRW of its
intention so to do within ten (10) days after the filing of that lien. In
--------
such a case, and provided that Multilink on demand of TRW protects TRW by a
good and sufficient surety bond against any such lien and any costs,
liability, or damage arising our of that contest, Multilink shall not be in
default hereunder until five (5) days after the final determination of the
--------
validity thereof, within which time Multilink shall satisfy and discharge
that lien to the extent held valid. The satisfaction and discharge of any
such lien shall not, in any case, be delayed until execution is had on any
judgment rendered on the lien, and that delay shall be a default of
Multilink under this Agreement. In the event of any such contest Multilink
shall protect and indemnify TRW and its Landlord against all loss, cost,
expense, and damage resulting from the contest.
TRW's Right of Inspection
Section 3.06. TRW or TRW's duly authorized agents may enter the Premises at any
and all reasonable times during the term of this Agreement, including any
extended term, to determine whether Multilink is complying with the terms and
conditions of this Agreement or to perform any other acts authorized by this
Agreement to be performed by TRW or reasonably necessary to protect TRW's rights
under this Agreement.
Surrender of Premises
Section 3.07. On expiration or earlier termination of this Agreement, Multilink
shall promptly surrender possession of the Premises to TRW in as good condition
as the Premises are on the date of this Agreement, reasonable wear and tear and
casualty damage excepted.
3
ARTICLE 4
USE OF PREMISES
Permitted and Prohibited Use of Premises
Section 4.01. Multilink shall use the Premises for operating and conducting
business for the design, development or manufacture of telecommunication
equipment and for no other purpose without the prior written consent of TRW. TRW
may withhold consent for any reason. Under no circumstances during the term of
this Agreement shall Multilink use or cause to be used in the business operated
on the Premises any hazardous or toxic substances or materials, as defined by
the State of California or store or dispose of any such substances or materials
on the Premises, except for incidental amounts thereof.
Compliance with Laws
Section 4.02. The Premises shall not be used or permitted by Multilink to be
used in violation of any law or ordinance. Multilink shall maintain the Premises
in a clean and sanitary manner and shall comply with:
(a) All laws, ordinances, rules, and regulations related to Multilink's
specific use of the Premises, now in effect or subsequently enacted or
promulgated by any public or governmental authority or agency having
jurisdiction over the Premises (and specifically excluding any such laws
and requirements which would pertain to any lawful use and occupancy of the
Premises in contrast to Multilink's specific use); and
(b) The recorded restrictions governing the ▇▇▇▇▇▇▇▇▇ Technology Center, in
which the Premises are located, a copy of which are attached as Exhibit
"C", as amended from time to time, provided Multilink is given a copy of
any such amendment.
TRW shall comply with all laws, ordinances, rules and regulations with respect
to the Building which are not Multilink's obligation under Section 4.02(a)
above.
Signs
Section 4.03. Multilink may not erect and maintain any signs on the Premises
relating to Multilink's business on the Premises without TRW consent not
unreasonably withheld.
ARTICLE 5
INSURANCE
Liability Insurance
Section 5.01. Multilink shall, at Multilink's own cost and expense, secure and
maintain during the entire term of this Agreement and any extended term of this
Agreement, public liability, property damage, and products liability insurance,
insuring Multilink and Multilink's employees against all bodily injury, property
damage, personal injury, and other loss or liability caused by or connected with
Multilink's occupation and use of the Premises under this Agreement in amounts
not less than:
4
(a) $1,000,000 for injury to or death of one person and, subject to the
limitation for the injury or death of one person, of not less than
$2,000,000 for injury to or death of two or more persons as a result of any
one accident or incident; and
(c) $1,000,000 for property damage.
TRW shall be named as an additional insured and the policy or policies shall
contain cross-liability endorsements.
Multilink's Personal Property
Section 5.02. Multilink shall at all times during the term of this Agreement and
at Multilink's sole expense, keep all of Multilink's personal property,
including trade fixtures and equipment and all merchandise of Multilink that may
be in the Premises from time to time, insured against loss or damage by fire and
by any peril included within fire and extended coverage insurance for an amount
reasonably determined by Multilink.
Workers' Compensation Insurance
Section 5.03. Multilink shall maintain in effect throughout the term of this
Agreement, at Multilink's sole expense, Workers' compensation insurance in
accordance with the laws of California and employer's liability insurance with a
limit of not less than $1 million per employee and $1 million per occurrence.
Cancellation Clause
Section 5.04. Any policy of insurance required under this Article shall be
written by insurance companies authorized to do business in California. Each
policy of insurance procured by Multilink pursuant to this Article shall
expressly provide that it cannot be canceled for any reason or altered in any
manner unless at least thirty (30) days prior written notice has been given by
the insurance company issuing the policy to TRW in the manner specified in this
Agreement for service of notices on TRW by Multilink.
Deposit of Insurance Policies with TRW
Section 5.05. Promptly on the issuance or renewal of any insurance policy
required by this Agreement, including fire and liability insurance policies,
Multilink shall cause a duplicate copy of the policy or a certificate evidencing
the policy and executed by the insurance company issuing the policy or its
authorized agent to be given to TRW.
Blanket Insurance Policy
Section 5.06. To satisfy its obligations under this Article, Multilink may at
any time during the term of this Agreement, have in full force and effect a
"blanket" policy of insurance insuring the Premises as well as other property
owned or occupied by Multilink provided the blanket policy does not in any way
diminish the amount or coverage of the insurance required under this
5
Article, and further provided that the blanket policy otherwise meets all
requirements of this Article.
TRW's Right to Procure Insurance
Section 5.07. If at anytime Multilink fails to procure or maintain the
insurance required by this Article, then following fifteen (15) days prior
written notice to Multilink, TRW may obtain that insurance and pay the
premiums on it for the benefit of Multilink. Any amounts paid by TRW to
procure or maintain insurance pursuant to this section shall be immediately
due and repayable to TRW by Multilink with the next then due installment of
rent under this Agreement; failure to repay at that time any amount expended
by TRW shall be considered a default by Multilink under this Agreement.
TRW's Insurance
Section 5.08. TRW's Fire and Casualty Insurance. TRW shall carry commercial
general liability insurance with respect to the Building during the term of
this Agreement, and shall further insure the Building during the term of this
Agreement against loss or damage due to fire and other casualties covered
within the classification of fire and extended coverage, vandalism coverage
and malicious mischief, sprinkler leakage, water damage and special extended
coverage, Such coverage shall be in such amounts, from such companies, and on
such other terms and conditions as TRW may from time to time reasonably
determine.
Subrogation
Section 5.09 TRW and Multilink agree to have their respective insurance
companies issuing property damage insurance waive any rights of subrogation
that such companies may have against TRW or Multilink, as the case may be, so
long as the insurance carried by TRW and Multilink, respectively, is not
invalidated thereby. As long as such waivers of subrogation are contained
in their respective insurance policies, TRW and Multilink hereby waive any
right that either may have against the other on account of any loss or damage
to their respective property to the extent such loss or damage is insurable
under policies of insurance for fire and all risk coverage, theft, public
liability, or other similar insurance.
ARTICLE 6
DESTRUCTION OF PREMISES
Duty to Repair or Restore
Section 6.01. If the Premises or any improvements therein are damaged or
destroyed during the term of this Agreement or any renewal or extension
thereof, the damage shall be repaired as follows:
(a) TRW shall repair that damage as soon as reasonably possible and restore
the Premises and improvements to substantially the same condition as
existed before the damage or destruction, regardless of whether the
insurance proceeds are sufficient to cover the actual cost of repair and
restoration.
(b) Multilink expressly waives any right under California Civil Code
Sections 1931 - 1933 to terminate this Agreement for damage or
destruction to the Premises.
6
Termination of Agreement for Certain Losses
Section 6.02. (a) Notwithstanding any other provision of this Agreement, if the
Premises are damaged or destroyed to such an extent it will cost more than
$50,000 to repair or replace them, and the damage or destruction is caused by a
peril against which insurance is not carried, TRW may terminate this Agreement
by giving Multilink written notice of the termination, which termination shall
not be effective for at least three (3) months following the delivery of the
notice of termination, unless the Premises are substantially damaged, in which
event such termination shall be effective sooner. The notice must be given
within thirty (30) days after occurrence of the damage or destruction.
(a) Multilink or TRW shall have the right to terminate this Agreement under
either of the following circumstances:
(1) If the Building is damaged or destroyed from any cause whatsoever,
insured or uninsured, and the laws then in existence do not permit the
repair or restoration of the Building; or
(2) If the Building is destroyed from any cause whatsoever, insured or
uninsured, during the last year of the term of this Agreement.
(b) In the event the damage or destruction is caused by a peril not insured
against, either party may terminate this Agreement by giving written notice
of termination to the other not later than 14 days after occurrence of the
event giving rise to terminate and termination shall be effective as of the
date set forth in the notice of termination, which termination shall not be
effective for at least three (3) months following the delivery of the
notice of termination, unless the Premises are substantially damaged, in
which event such termination shall be effective sooner. In the event of a
termination, Multilink shall not be entitled to collect any insurance
proceeds attributable to insurance policies covering the Building or
improvements, except those proceeds attributable to Multilnk's personal
property, equipment, merchandise and trade fixtures.
(d) If this Agreement is terminated pursuant to either subsection (a) or (b)
above, rent, taxes, assessments, and other sums payable by Multilink to TRW
under this Agreement shall be prorated as of the termination date. If any
taxes, assessments, or rent has been paid in advance by Multilink, TRW
shall refund it to Multilink for the unexpired period for which the payment
has been made.
Time for Construction of Repairs
Section 6.03. Any and all repairs and restoration of improvements required by
this Article shall be commenced by TRW within a reasonable time after occurrence
of the damage or destruction requiring the repairs or restoration; shall be
diligently pursued after being commenced; and shall be completed within a
reasonable time after the loss. If TRW is required under this Agreement to
perform the repairs and restoration, TRW shall cause the repairs and restoration
to be completed not later than 90 days after occurrence of the event causing
destruction [or Multilink shall have the right to terminate this Agreement].
7
Abatement of Fees Payable by Multilink
Section 6.04. If any casualty shall have damaged the Premises or Multilink's
access thereto, TRW shall allow Multilink a proportionate abatement of the
fees payable by Multilink for the Premises during the time and to the extent
the Premises are unfit for occupancy for the purposes permitted under this
Agreement, and not occupied by Multilink as a result thereof; provided that if
the Premises are damaged such that the remaining portion of the Premises is
not sufficient to allow Multilink to conduct its business operations
therefrom, then TRW shall allow Multilink a total abatement of such fees
during the time and to the extent that the entire Premises are unfit for
occupancy for the purposes permitted under this Agreement, and not occupied by
Multilink as a result of the subject damage.
ARTICLE 7
CONDEMNATION
Total Condemnation Defined
Section 7.01. The term "total condemnation" as used in this Article shall mean
the taking by eminent domain ("condemnation") by a public or quasi-public
agency or entity having the power of eminent domain ("condemnor") of
(a) More than thirty-five (35) percent of the ground area of the Premises; or
(b) Less than thirty-five (35) percent of the ground area of the Premises at
a time when the remaining buildings or improvements on the Premises
cannot reasonably be restored to a condition suitable for Multilink"
occupancy for the uses permitted by this Agreement within sixty (60)
normal eight-hour working days under all laws and regulations then
applicable; or
(c) Less than thirty-five (35) percent of the ground area of the Premises in
such a manner that Multilink is substantially prevented from carrying on
operations of a permitted use under this Agreement on the remaining
portion of the Premises.
Partial Condemnation Defined
Section 7.02. The term "partial condemnation" as used in this Article shall
mean any condemnation of a portion of the Premises that is not a total
condemnation under Section 7.01 of this Agreement.
Termination for Total Condemnation
Section 7.03. In the event of a total condemnation of the Premises during the
term of this Agreement, this Agreement shall terminate without further notice
as of 12:01 A.M. on the date actual physical possession of the condemned
property is taken by the condemnor. All amounts payable under this Agreement
shall be prorated as of 12:01 A.M. on that date.
Effect of Partial Condemnation
Section 7.04. In the event of a partial condemnation of the Premises, this
Agreement shall terminate as to the portion of the Premises taken on the date
actual physical possession of that
8
portion is taken by the condemnor, and at Multilink's option may remain in
full force and effect or terminate as to the remainder of the Premises;
provided, however, that promptly after the taking of actual physical
possession by the condemnor of the portion taken by condemnation, if
Multilink elects to continue in possession of the remainder of the Premises
TRW shall restore, at Multinlink's own cost and expense, the improvements on
the remainder of the Premises to a condition making the Premises tenantable
by Multilink for the uses permitted by this Agreement. Any rent payable under
this Agreement after the date actual physical possession is taken by the
condemnor of the portion of the Premises condemned shall be reduced by the
percentage the ground area of the portion taken by eminent domain bears to
the total ground area of the Premises on the date of this Agreement. In
addition, the rent payable under this Agreement shall be further abated
during the time and to the extent Multilink is prevented from occupying all
of the remainder of the Premises by the work of restoration required by this
section to be performed by TRW.
ARTICLE 8
INDEMNIFICATION
Multilink's Hold-Harmless Clause
Section 8.01. Except as otherwise provided in Section 8.02, Multilink shall
indemnify and hold TRW and the property of TRW, including the Premises, free
and harmless from any and all liability, claims, loss, damages, or expenses,
including reasonable counsel fees and costs, arising by reason of the death
or injury of any person, including Multilink or any person who is an employee
or agent of Multilink, or by reason of damage to or destruction of any
property, including property owned by Multilink or any person who is an
employee or agent of Multilink, caused by (1) any act or omission on the
Premises of Multilink or any person in, on, or about the Premises with the
permission and consent of Multilink; or (2) Multilink's breach of this
Agreement.
Section 8.02. Notwithstanding the provisions of Section 8.01 of this
Agreement, Multilink shall be under no duty to indemnify and hold TRW
harmless from any liability, claims, losses, expenses, or damages arising
because of TRW's failure to make any repairs required by this Agreement to be
made by TRW or because of any negligence or willful acts of misconduct by TRW
or by any person who is an agent or employee of TRW acting in the course and
scope of its agency or employment. TRW agrees to indemnify, defend, protect,
and hold Multilink free and harmless from and against any liability, claims,
losses, expenses, or damages, including reasonable counsel fees and costs,
arising from or in connection with TRW's failure to make any repairs required
by this Agreement to be made by TRW or in connection with TRW's breach of
this Agreement, or because of any negligence or willful acts of misconduct by
TRW or by any person who is an agent or employee of TRW acting in the course
and scope of its agency or employment.
ARTICLE 9
DEFAULT AND REMEDIES
Remedies on Multilink's Default
Section 9.01. If Multilink breaches this Agreement, TRW, in addition to any
other remedy given TRW by law or equity, may
9
(a) Continue this Agreement in effect by not terminating Multilink's access
to the Premises, in which case TRW shall be entitled to enforce all TRW's
rights and remedies under this Agreement, including the right to recover
the amounts specified in this Agreement as it becomes due under this
Agreement;
(b) Terminate this Agreement and recover from Multilink
(1) The worth, at the time of award, of any unpaid amounts that had been
earned at the time of termination of the lease;
(2) The worth, at the time of award, of the amount by which the unpaid
rent that would have been earned after termination of the Agreement
until the time of award exceeds the amount of rental loss that
Multilink proves could have been reasonably avoided;
(3) 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 rental loss that Multilink proves could be reasonably
avoided; and
(4) Any other amount necessary to compensate TRW for all detriment
proximately caused by Multilink's failure to perform the obligations
under this Agreement; or
(c) Terminate the Agreement and, in addition to any recoveries Multilink may
seek under subsection (b) of this section, bring an action to reenter and
regain possession of the Premises in the manner provided by the law of
unlawful detainer then in effect in California.
Termination by TRW
Section 9.02. No act of TRW or its landlord, including but not limited to TRW's
or its landlord's entry on the Premises or efforts to relet the Premises, or the
giving by TRW to Multilink of a notice of default, shall be construed as an
election to terminate this Agreement unless a written notice of the-TRW's
election to terminate is given to Multilink or unless termination of this
Agreement is decreed by a court of competent jurisdiction.
Default by Multilink
Section 9.03. All covenants and agreements contained in this Agreement are
declared to be conditions to this Agreement and to the term hereof. The
following constitute a material default and breach of this Agreement by
Multilink:
(a) Any failure to pay amounts when due when the failure continues for five
(5) days after written notice that said amount is overdue.
(b) Any failure by Multilink to perform any other covenant, condition, or
agreement contained in this Agreement when the failure is not cured within
thirty (30) days after written notice of the specific failure is given by
TRW to Multilink unless Multilink commences to cure within such thirty (30)
day period and thereafter diligently prosecutes such cure to completion.
(c) The bankruptcy or insolvency of Multilink, the making by Multilink of any
general assignment for the benefit of creditors; the filing by or against
Multilink of a petition to have Multilink adjudged a bankrupt or of a
petition for reorganization or arrangement under the Bankruptcy Act
(unless, in the case of a petition filed against Multilink, it is dismissed
within sixty (60)
10
days; the appointment of a trustee or receiver to take possession of
substantially all of Multilink's assets located at the Premises or of
Multilink's interest in this Agreement, if possession is not restored to
Multilink with thirty (30) days; or the attachment, execution, or other
judicial seizure of substantially all of Multilink's assets located at the
Premises or of Multilink's interest in this Agreement, when that seizure is
not discharged within fifteen (15) days.
Cumulative Remedies
Section 9.04. The remedies granted to TRW in this Article shall not be exclusive
but shall be cumulative and in addition to all other remedies now or hereafter
allowed by law or authorized in this Agreement.
Waiver of Breach
Section 9.05. The waiver by either party of any breach by the other party of any
of the provisions of this Agreement shall not constitute a continuing waiver or
a waiver of any subsequent default or breach by such other party either of the
same or a different provision of this Agreement.
ARTICLE 10
WARRANTY
Warranty
Section 10.01. The Products to be delivered under this Agreement are warranted
only to the extent of and by the original manufacturer's warranty. Any defective
part or parts must be returned to the manufacturer or vendor and not to TRW.
Otherwise, all products delivered and services performed under this Agreement
are provided "As Is", without warranty.
Warranty Exclusion
Section 10.02. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES,
WHETHER ORAL, WRITTEN, EXPRESS, IMPLIED, OR STATUTORY. IMPLIED WARRANTIES OF
FITNESS FOR PARTICULAR PURPOSE AND MERCHANTABILITY SHALL NOT APPLY. TRW'S
WARRANTY OBLIGATIONS AND CLIENT'S REMEDIES THEREUNDER (EXCEPT AS TO TITLE) ARE
SOLELY AND EXCLUSIVELY AS STATED HEREIN. IN NO CASE WILL TRW BE LIABLE FOR
CONSEQUENTIAL DAMAGES, LABOR PERFORMED IN CONNECTION WITH REMOVAL AND
REPLACEMENT, LOSS OF PRODUCTION, OR ANY OTHER LOSS INCURRED BECAUSE OF
INTERRUPTION OF SERVICE.
11
ARTICLE 11
INTELLECTUAL PROPERTY RIGHTS
Rights of Multilink
Section 11.01. All right, title and interest in and to any data relating to
Multilink business operations are and shall remain the exclusive property of
Multilink, whether or not provided to TRW during the performance of this
contract.
Rights in Third Party Software
Section 11.02. Use by Multilink of commercial third party software and related
documentation shall be subject to the license rights accompanying that software
or documentation. Multilink shall indemnify and hold harmless TRW from any and
all costs, expenses, reasonable attorneys' fees and liability for any claim,
settlement, and judgment based upon, arising out of or relating to Multilink's
or its employee's failure to comply with any such license provisions.
ARTICLE 12
MISCELLANEOUS
Assignment and Subletting
Section 12.01. Multilink shall not encumber, assign or otherwise transfer this
Agreement, any right or interest therein, or any right or interest in the
Premises or any of the improvements that may now or hereafter be constructed or
installed on the Premises without first obtaining the written consent of TRW
which consent shall be in the sole discretion of TRW. Multilink shall not allow
any other person, other than Multilink's agents, servants, and employees, to
occupy the Premises or any part of the Premises without the prior written
consent of TRW. Any encumbrance, assignment, or transfer without the prior
written consent of TRW, whether voluntary or involuntary, by operation of law or
otherwise, is void and shall, at the option of TRW, terminate this Agreement.
Force Majeure
Section 12.02. With respect to the delivery of products or the performance of
services under this Agreement, the date on which each party's obligations are to
be fulfilled shall be extended for a period equal to any delay arising directly
or indirectly from any cause beyond such party's reasonable control. Such causes
include, but are not limited to, acts of God; earthquake; the laws, actions, or
inactions of any governmental authority in either its sovereign or contractual
capacity; civil or military conflicts; riot; revolution; fires; strikes; labor
disputes; epidemics; and embargoes. Such extension shall apply whether or not
there is another concurrent cause of delay.
Force Majeure Termination
Section 12.03. If the delays resulting from any of the causes stated in Section
12.02 extend in the aggregate for more than ninety (90) days and the parties
have not agreed upon a revised basis for continuing this Agreement, including
adjustment of the price, then either party, upon at least thirty (30) days
written notice, may terminate this Agreement.
12
Time
Section 12.04. Time is expressly declared to be of the essence in this
Agreement.
Headings
Section 12.05. The headings and titles to the articles, sections, and paragraphs
of this Agreement are inserted for convenience only and shall not be deemed a
part hereof or affect the construction or interpretation of any provision
hereof.
Counterparts
Section 12.06. This Agreement has been executed in several counterparts, each of
which shall be deemed to be an original, and all such counterparts together
shall constitute but one and the same instrument.
Modification - Waiver
Section 12.07. No cancellation, modification, amendment, deletion, addition or
other change in this Agreement or any provision thereof, or waiver of any right
or remedy herein provided, shall be effective for any purpose unless
specifically set forth in a writing signed by the party to be bound. No waiver
of any right or remedy with respect to any occurrence or event on one occasion
shall be deemed a waiver of such right or remedy with respect to a similar or
like occurrence or event on any other occasion.
Entire Agreement
Section 12.08. This Agreement supersedes all other prior agreements, whether
oral or written, which may have been made with respect to the subject of this
Agreement and the transactions contemplated herein, and this Agreement contains
the entire agreement of the parties with respect to the subject matter hereof.
Severability
Section 12.09. Any provision of this Agreement which is determined to be
unlawful, unenforceable, or without effect under any applicable law of any
jurisdiction shall, as to such jurisdiction, be ineffective without affecting
any other provision of this Agreement. To the full extent that the provisions of
such applicable law may be waived, they are hereby waived, to the end that this
Agreement be deemed to be a valid and binding agreement enforceable in
accordance with its terms.
13
Successors and Assigns
Section 12.10. The provisions of this Agreement shall be binding upon and inure
to the benefits of TRW and Multilink and their respective successors and
assigns. No third party is intended to or shall have any right or interest under
this Agreement.
Binding Arbitration
Section 12.11. The parties agree that they shall negotiate in good faith to
resolve any dispute which arises out of or in connection with this Agreement. In
the event the parties are unable to resolve any such dispute within a reasonable
time by good faith efforts, the dispute shall be settled by final binding
arbitration. Such arbitration shall be referred to the American Arbitration
Association in accordance with the rules thereof then in effect, and the hearing
thereon shall be held at a mutually acceptable neutral site. Unless otherwise
agreed to in writing, the parties shall comply with the ruling resulting from
such final binding arbitration and neither party shall appeal the decision
thereof.
Attorney's Fees
Section 12.12. Unless otherwise provided for by the arbitrator, each party in
any action brought to enforce or interpret this Agreement or to seek relief for
breach of this Agreement shall be responsible for its own expenses and
attorney's fee incurred therefor.
Governing Law
Section 12.13. This Agreement shall be governed and construed in accordance with
the laws of the State of California, without regard to the "choice of law"
rules.
Limitation of Liability
Section 12.14. The total liability of TRW on any claim for use of the products,
services or premise shall not exceed one Thousand Dollars. Except as otherwise
expressly provided in this Agreement, in no event shall either party be
liability to the other for incidental, consequential or special damages.
TRW Relocation Termination
Section 12.15. Notwithstanding any other provision of this Agreement, TRW may,
without charge, terminate Multilink's access to the Premises and the services to
be provided under this Agreement if TRW elects to vacate the building designated
as "DH1", by giving Multilink 180 days prior written notice of such
termination. In such event, Multilink shall pay for access to the Premises and
services until the termination date. Multilink shall have the right, upon
written notice to TRW, to terminate this Agreement earlier than the termination
date selected by TRW.
14
Brokers
Section 12.16. TRW and Multilink hereby warrant to each other that they have had
no dealings with any real estate broker or agent in connection with the
negotiation of this Agreement and that they know of no real restate broker or
agent who is entitled to a commission in connection with this Agreement. Each
party agrees to indemnify and defend the other party against and hold the other
party harmless from any and all claims, demands, losses, liabilities, lawsuits,
judgments, and costs and expenses (including without limitation reasonable
attorneys' fees) with respect to any leasing commission or equivalent
compensation alleged to be owing on account of the indemnifying party's dealings
with any real estate broker or agent.
TRW Default
Section 12.17. Notwithstanding anything to the contrary set forth in this
Agreement, TRW shall be in default in the performance of any obligation required
to be performed by TRW pursuant to this Agreement if TRW fails to perform such
obligation within thirty (30) days after the receipt of notice from Multilink
specifying in detail TRW's failure to perform; provided, however, if the nature
of TRW's obligation is such that more than thirty (30) days after required for
its performance, then TRW shall not be in default under this Agreement if it
shall commence such performance within such thirty (30) day period and
thereafter diligently pursue the same to completion. Upon any such default by
TRW under this Agreement, Multilink may exercise any of its rights provided at
law or in equity.
Abatement of Fees
Section 12.18. In the event that Multilink is prevented by acts of TRW from
using, and does not use, the Premises or any portion thereof for five (5)
consecutive business days (the "Eligibility Period"), then the fees payable by
Multilink under this Agreement shall be abated or reduced, as the case may be,
after expiration of the Eligibility Period for such time that Multilink
continues to be so prevented from using, and does not use, the Premises or a
portion thereof, in the proportion that the area of the portion of the Premises
that Multilink is prevented from using, and does not use, bears to the total
area of the premises; provided, however, in the event that Multilink is
prevented from using, and does not use, a portion of the Premises for a period
of time in excess of the Eligibility Period and the remaining portion of the
Premises is not sufficient to allow Multilink to effectively conduct its
business therein, and if Multilink does not conduct its business from such
remaining portion, then for such time after expiration of the Eligibility Period
during which Multilink is so prevented from effectively conducting its business
therein, the fees payable by Multilink under this Agreement shall be abated for
such time as Multilink continues to be so prevented from using, and does not
use, the Premises. To the extent Multilink is entitled to abatement without
regard to the Eligibility Period, because of an event described in Article 6
above, then the Eligibility Period shall not be applicable. If Multilink is
prevented from using and does not use all or a material portion of the Premises
for three (3) months following the Eligibility Period, then Multilink shall
thereafter have the right to terminate this Agreement upon written notice to
TRW.
15
Notices
Section 12.19. All notices, demands, statements or communications (collectively,
"Notices") given or required to be given by either party to the other hereunder
shall be in writing, shall be sent by United States certified or registered
mail, postage prepaid, return receipt requested ("Mail"), delivered by a
nationally recognized overnight courier, or delivered personally, to Multilink
or to TRW at the addresses set forth below, or to such other place as TRW or
Multilink may from time to time designate in a Notice to the other party. Any
Notice will be deemed given, sent or delivered, as the case may be, (i) three
(3) days after the date it is posted if sent by Mail, (ii) the date the
overnight courier delivery is made, or (iii) the date personal delivery is made.
TRW: TRW Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Multilink: Multilink Technology Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
With a copy to:
Allen, Matkins, ▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
1999 Avenue of the Stars, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇, Esq.
IN WITNESS WHEREOF, the parties hereto have entered into this Agreement to be
effective as of the day and year first above written.
Multilink Technology Corporation TRW Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
------------------------- --------------------------
Printed: ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇ Printed: ▇▇▇▇ ▇. ▇▇▇▇▇
---------------------- ---------------------
Title: President Title: Div Mgr. of Contracting
------------------------ -----------------------
Date: 7/28/99 Date: 7/28/99
--------------------- -------------------
16
Exhibit "A"
Summary of Premises, Products and Services, Payments,
and Schedule for Access, Delivery and Performance
A. The Premises, Products and Services.
-----------------------------------
TRW shall provide Multilink with the following products and services access to
the following Premises:
Item No. Description
-------- -----------
Products and Services
1. Electronic Access to DELL PE4300 Server from the Premises
2. Use of thirteen (13) DELL PCs with 17" Monitors on the Premises
3. Telecommunications Services on the Premises to include sixteen (16)
telephones with digital lines, three (3) analog lines, local and long
distance telecommunications services.
4. Hardware consisting of the following:
Qty Description
--- -----------
One (1) HP4500 DN
One (1) ScanJet 6200 CXI
Four (4) HP LJ 1100 XI
One (1) HP 750C Plotter
One (1) LaserJet 8000N Printer
One (1) 10/100 Mb Switch, Dedicated
5. Installation of the Hardware identified in 2, 3 and 4 above on the
Premises.
6. Multilink Unique Operation and Maintenance Services for the Hardware
identified above not included in TRW's standard service center
operation and maintenance efforts.
7. Fit-up of the Premises
8. Other consulting, engineering, technical or administrative services
as requested by Multilink not included above or not included in TRW's
standard service center rates.
17
The Premises
9. Office Space (Room 1384)
401 sq. ft., more or less
10. Laboratory Space (Room 1849)
2813 sq. ft., more or less
B. Payments.
--------
Basis of Payments:
Products and Services shall be paid for on the following basis.
Item No. Description Basis for Payment
------- ----------- -----------------
1. Access to DELL PE 4300 Server TRW Cost
2. Use of Thirteen (13) DELL PCs. TRW Cost
3. Telecommunications Services TRW Cost
4. Hardware Firm Fixed Price
5. Installation Services TRW Cost
6. Multilink Unique Operation and TRW Cost
Maintenance Services
7. Fit-up TRW Cost
8. Other Services TRW Cost
9. Office Space TRW Cost
10. Laboratory Space TRW Cost
Interim ▇▇▇▇▇▇▇▇
----------------
Multilink shall pay TRW for the products delivered, services performed and
Premises accessed under this Agreement at the following rates until final
rates are determined in accordance with this Exhibit.
18
Item No.
-------
1. Access to Dell PE4300 Server $ 111.00/wk
2. Use of PCs $ 50.00/PC/wk
3. Telecommunications Services $ 1,075/per mo.
4. Hardware
Qty. Unit Total
---- ---- -----
HP4500 DN 1 $ 3,663 $ 3,663
SunJet 6200 CXI 1 37l 371
HP LJ 1100 XI 4 391.50 1,566
HP ▇▇▇▇ ▇▇▇▇▇▇▇ 1 5,454 5,454
LaserJet 8000 N Printer 1 2,479 2,479
10/100 mb Switch, Dedicated 1 1,797 1,797
Total Hardware (Fixed Price) $ 15,330
5. Acquisition & Installation Services $ 5,000
6. Multilink Unique Operation and $ 290/per wk
Maintenance Services
7. Fit-up Services $ 189,000
8. Other Consulting, Engineering or TBD*
Administrative Services
9. Office Space $ 887/mo
10. Laboratory Space $ 6,217/mo
C. Delivery and Performance Schedule
Item No. Delivery, Term or Performance Schedule
-------- --------------------------------------
1 May 3, 1999 to August 31, 2000
2 May 3, 1999 to August 31, 2000
3 May 3, 1999 to August 31, 2000
4 Deliver by May 12, 1999
5 Installed by May 12, 1999
6 Installation of Item No. 4 through August 31, 2000
7 Complete by May 19, 1999
8 Complete by August 31, 2000
9 April 5, 1999 to August 31, 2000
10 May 3, 1999 to August 31, 2000
*These services may only be ordered by mutual agreement of the parties. None
have been ordered as part of the date of signing of this Agreement.
19
D. Invoices
1.0 Submission of Invoices. TRW may submit invoices to Multilink for items Nos.
1, 2, 3, 5, 6, 7, 8, 9 and 10 no more frequently than monthly for services
actually performed, for costs actually incurred and premises access actually
provided. TRW may submit invoices to Multilink for Item 4 at the fixed prices
set forth in Section B of this Exhibit upon delivery and installation thereof.
Invoices shall be submitted to:
Multilink Technology Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
2.0 Payment of Invoices. Payments shall be made by Multilink so as to be
received by TRW not later than thirty (30) days after Multilink's receipt of
invoice. Checks shall be made payable to TRW Inc. and shall be addressed and
sent to TRW as follows:
TRW Space and Defense
File No. 41818
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇
3.0 Set-Off. TRW may set-off amounts due under this Agreement against any
amounts due by TRW to Multilink under the Spitfire Development Agreement, dated
May 1999.
4.0 Final Amounts. For access to the Premises and all items of products or
services for which the basis of payment is "TRW Cost", Multilink shall pay TRW
the TRW Telecommunications unit's actual direct and indirect cost for such items
in accordance with TRW's usual accounting practices.
In the event Multilink's telecommunication usage of Item 3 under this Exhibit
exceeds the standard TRW usage rate by more than ten (10) percent, Multilink
shall pay TRW the standard rate plus the percentage amount by which Multilink's
usage exceeded TRW's standard rate, together with the related indirect costs
thereon in accordance with TRW's usual accounting practices.
For items identified in Section B of this Exhibit as "Firm Fixed Price", the
final amount to be paid by Multilink shall be the amount specified in Section B
above.
20
EXHIBIT "B"
-----------
OUTLINE OF PREMISES
-------------------
[To Be Attached]
----------------
21
EXHIBIT "C"
-----------
▇▇▇▇▇▇▇▇▇ TECHNOLOGY CENTER RESTRICTIONS
----------------------------------------
[To Be Attached]
----------------
22