Exhibit 10.19
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SUBLEASE
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This Sublease ("Sublease"), dated August 16, 1999 for reference purposes
only, is entered into by and between Clontech Laboratories, Inc., a California
corporation ("Sublessor") and TelCom Semiconductor, Inc. ("Sublessee").
Recitals
A. Sublessor leases certain premises consisting of an industrial building
containing approximately 42,565 square feet, located at 1290 and ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ (the "Master Premises"), pursuant to
that certain Agreement of Lease dated April 28th, 1997 by and between Teledyne
Industries, Inc., as landlord (the "Master Lessor") and Sublessor, as tenant
(the "Master Lease").
B. Concurrently herewith Sublessor and Master Lessor are amending the
Master Lease to add certain premises (the "Additional Premises") pursuant to an
Amendment to Agreement of Lease dated of even date herewith (the "Lease
Amendment"). The Additional Premises are currently leased to TelCom pursuant to
an existing lease (the "TelCom Lease"), which lease will be terminated by
separate agreement (the "TelCom Lease Termination Agreement") between Sublessee
and Master Lessor. The Master Lease, as amended by the Lease Amendment, is
referred to herein as the "Master Lease" and a true and correct copy thereof is
attached hereto as Exhibit "A." Capitalized terms used but not defined herein
have the same meanings as they have in the Master Lease.
C. Sublessor desires to sublease a portion of the Master Premises to
Sublessee, and Sublessee desired to sublease such portion of the Master Premises
from Sublessor, on and subject to the terms and provisions hereof. That portion
of the Master Premises to be subleased hereunder (the "Premises") is more
particularly described in Exhibit "B" attached hereto and incorporated herein by
this reference.
Now, Therefore, in consideration of the mutual covenants and conditions
contained herein, Sublessor and Sublessee covenant and agree as follows:
Agreement
1. Premises. On and subject to the terms and conditions below, Sublessor
hereby leases to Sublessee, and Sublessee hereby leases from Sublessor, the
Premises.
2. Term. This Sublease shall commence on August 23, 1999 (the
"Commencement Date"), provided Sublessor has theretofore obtained the consent of
Master Lessor, the TelCom Lease is terminated and the Lease Amendment has been
executed, and shall expire May 31, 2003, unless sooner terminated pursuant to
any provision hereof. This Sublease may be
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extended on a month-to-month basis following its expiration, upon written
agreement of both Sublessor and Sublessee.
3. Rent.
(a) Base Rent.
(1) Commencing on the Commencement Date and continuing through
May 31, 2000, Sublessee shall pay rent ("Base Rent") to Sublessor an
amount equal to one hundred percent (100%) of the amount of Base Rent
Sublessee would have been paying under the TelCom Lease if the TelCom
Lease had not been terminated, as such amount may be adjusted in
accordance with the provisions of the TelCom Lease (the "TelCom
Rent"). As of the Commencement Date, the amount of Base Rent payable
by Sublessee hereunder is $100,111.95 per month and shall adjust, in
accordance with the provisions of the TelCom Lease, effective December
23, 1999 and annually thereafter.
(2) Commencing June 1, 2000 (or on the Delivery Date [as that
term is defined in paragraph 8 below], if such date is later) and
continuing throughout the balance of the term of this Sublease, Base
Rent shall be adjusted to equal TelCom's Share (as that term is
defined below) of the TelCom Rent, as the same may be adjusted from
time to time in accordance with the provisions of the TelCom Lease.
For purposes of this Sublease, TelCom's Share shall equal a fraction,
the numerator of which is the square footage of the Premises and the
denominator of which is 70,254 square feet.
(b) Additional Rent. Commencing on the Commencement Date and
continuing throughout the term of this Sublease, Sublessee will also pay
additional rent ("Additional Rent") in the following amounts:
(1) Commencing on the Commencement Date and continuing through
May 31, 2000, Additional Rent shall be equal to sixty-two and 17/100
percent (62.17%) of all costs payable by Sublessee pursuant to the
Master Lease, for insurance premiums, taxes, assessments, operating
charges, utilities, maintenance charges, common area expenses and any
other charges, costs and expenses which arise or may be contemplated
under the Master Lease with regard to the Master Premises (but not
including any Capital Improvement amortization and associated interest
charge, if any, relating to improvements made on or prior to August
23, 1999) (herein, "Operating Costs").
(2) Commencing June 1, 2000 (or on the Delivery Date, if such
date is later) and continuing for the balance of the Sublease term,
Additional Rent shall be equal to Sublessee Pro Rata Share of
Operating Costs.
(c) Sublessee's Pro Rata Share. For purposes of this Sublease,
Sublessee's Pro Rata Share shall be equal to a fraction, the numerator of
which is the square footage of the Premises, and the denominator of which
is equal to 113,000 square feet. On or
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prior to the Delivery Date, Sublessor's architect or construction
consultant shall determine the square footage of the Premises and shall
notify Sublessee in writing.
Base Rent, Additional Rent and all other amounts payable by Sublessee
hereunder are referred to collectively as "Rent." Additional Rent shall be
payable to Sublessor as and when payments are due from Sublessor pursuant
to the Master Sublease, but at least five (5) business days prior to the
date Sublessor must pay such amounts to Master Lessor.
(c) Payment. If the Commencement Date does not fall on the first day
of a calendar month, Rent for the first month shall be prorated on a daily
basis based upon a calendar month. Rent shall be payable to Sublessor in
lawful money of the United States, in advance, without prior notice,
demand, or offset. Base Rent shall be payable on or before the first day of
each calendar month during the term hereof. Additional Rent shall be
payable three (3) business days prior to the date Additional Rent is
payable by Sublessor under the Master Lease. All Rent shall be paid to
Sublessor at the address specified for notices to Sublessor in paragraph
15, below.
(d) Late Charges. Sublessee recognizes that late payment of any Rent
will result in administrative expenses to Sublessor, the extent of which
additional expenses are extremely difficult and economically impractical to
ascertain. Sublessee therefore agrees that if any Rent shall remain unpaid
ten (10) days after such amounts are due, the amount of such Rent shall be
increased by a late charge to be paid to Sublessor by Sublessee in an
amount equal to the greater of five hundred dollars ($500) or ten percent
(10%) of the amount of the delinquent Rent.
(e) Deposits. On August 20, 1999, Sublessee shall pay to Sublessor
the sum of $100,111.95, constituting payment in advance of the first
month's Base Rent, plus the cash balance of the Security Deposit in the
amount of $24,212,33.
(f) Abatement. In the event of any casualty or condemnation affecting
the Premises, Rent payable by Sublessee shall be abated hereunder, but only
to the extent that rent under the Master Lease is abated, and Sublessee
waives any right to terminate this Sublease in connection with such
casualty or condemnation, except to the extent the Master Lease is also
terminated as to the Premises or any portion thereof.
4. Utilities. Sublessee shall pay for all water, gas, heat, light, power,
telephone, sewer and other utilities supplied to the Premises during the entire
term of this Sublease or the Additional Premises from the Commencement Date
through June 1, 1999 ("Utilities"), together with any fees, surcharges and taxes
thereon. In the event that Utilities to the Premises are not separately
metered, Sublessee shall reimburse Sublessor for Sublessee's Pro Rata Share of
the cost of utilities furnished to the Master Premises.
5. Security Deposit. Sublessee shall assign and does hereby assign to
Sublessor its interest in its current security deposit with Master Lessor in the
amount of $28,596.67 and agrees to deliver cash in the amount of $24,212,33, so
that Sublessor will hold the aggregate amount of $52,809, as security for the
full and faithful performance of its obligations hereunder ("Security Deposit").
If Sublessee fails to pay Rent or other charges when due under this Sublease, or
fails
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to perform any of its other obligations hereunder, Sublessor may use or apply
all or any portion of the Security Deposit for the payment of any Rent or other
amount then due hereunder and unpaid, for the payment of any other sum for which
Sublessor may become obligated by reason of Sublessee's default or breach, or
for any loss or damage sustained by Sublessor as a result of Sublessee's default
or breach. If Sublessor so uses any portion of the Security Deposit, Sublessee
shall restore the Security Deposit to the full amount originally deposited
within ten (10) days after Sublessor's written demand. Sublessor shall not be
required to keep the Security Deposit separate from its general accounts, and
shall have no obligation or liability for payment of interest on the Security
Deposit. The Security Deposit, or so much thereof as had not theretofore been
applied by Sublessor, shall be returned to Sublessee within thirty (30) days of
the expiration or earlier termination of this Sublease, provided Sublessee has
vacated the Premises and surrendered the Premises in the condition required
hereunder.
6. Assignment and Subletting. Sublessee may not assign, sublet, transfer,
pledge, hypothecate or otherwise encumber the Premises, in whole or in part, or
permit the use or occupancy of the Premises by anyone other than Sublessee,
unless Sublessee has obtained Sublessor's consent thereto (which shall not be
unreasonably withheld) and the consent of Master Lessor. Regardless of
Sublessor's consent, no subletting or assignment shall release Sublessee of its
obligations hereunder. Any rent or other consideration payable to Sublessee
pursuant to any sublease or assignment permitted by this paragraph which is in
excess of the Rent payable to Sublessor pursuant hereto ("Sublease Bonus Rent")
shall be divided equally between Sublessor and Sublessee.
7. Condition of Premises. Sublessee has used due diligence in inspecting
the Premises and agrees to accept the Premises in "as-is" condition and with all
faults as of the date of Sublessee's execution of this Sublease, without any
representation or warranty of any kind or nature whatsoever, or any obligation
on the part of Sublessor to modify, improve or otherwise prepare the Premises
for Sublessee's occupancy. Except as otherwise provided in paragraph 9 below,
by entry hereunder, Sublessee accepts the Premises in their present condition
and without representation or warranty of any kind by Sublessor. Sublessee
hereby expressly waives the provisions of subsection 1 of Section 1932 and
Sections 1941 and 1942 of the California Civil Code and all rights to make
repairs at the expense of Sublessor as provided in Section 1942 of said Civil
Code.
8. Surrender of Additional Premises.
(a) Commencing on the Commencement Date and continuing through December 31,
1999, Sublessee shall be entitled to retain possession and occupancy of the
Additional Premises for purposes of wrapping up its operations therein. Such
occupancy shall be subject to all of the provisions of this Sublease, including,
without limitation, the provisions of paragraph 13 below. In addition, during
such period, Sublessee shall allow Sublessor access to the Additional Premises
for purposes of planning its tenant improvements to the space.
(b) On or before January 1, 2000, Sublessee shall vacate and surrender that
portion of the Additional Premises that does not contain the Premises
("Clontech's Premises"), and shall deliver such portion of the Additional
Premises to Sublessor free of all equipment and personal property, in broom-
clean condition, and in the condition required for surrender set forth in the
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TelCom Lease. In any case, and not by way of limitation, Sublessee shall be
responsible for decertification of the Additional Premises, and satisfaction
with all regulatory requirements and requirements of Master Lessor for surrender
thereof on or prior to January 1, 2000. Sublessee agrees to indemnify, defend
and hold Sublessor harmless from any and all loss, cost, liability or expense
(including, without limitation, any and all attorneys' fees and court costs)
arising out of or relating to Sublessee's failure to so surrender the Additional
Premises. If for any reason Sublessee shall fail to surrender possession of
Clontech's Premises on or before January 1, 2000, Base Rent, Additional Rent and
the costs of utilities shall remain payable at their initial rates, and such
rates shall not be reduced until possession of Clontech's Premises is delivered
to Sublessor in the condition required by this paragraph. The date on which
Sublessee delivers possession of Clontech's Premises in the condition required
by this paragraph is sometimes referred to herein as the "Delivery Date."
9. Use. Sublessee may use the Premises only for the uses permitted under
the Master Lease and for no other purpose. Sublessee shall promptly comply with
all applicable statutes, ordinances, rules, regulations, orders, restrictions of
record, and requirements in effect during the term of this Sublease governing,
affecting and regulating the Premises, including but not limited to, the use
thereof. Sublessee shall not use or permit the use of the Premises in a manner
that will create waste or a nuisance, interfere with or disturb other tenants in
the Building or violate the provisions of the Master Lease.
10. Hazardous Substances.
(a) Certain Definitions.
(1) The term "Hazardous Substances" shall mean pollutants,
contaminants, chemicals, or industrial, toxic or hazardous constituents,
substances or wastes, including, but not limited to, asbestos and asbestos
containing materials, polyclorinated biphenyls, petroleum based-products or
other wastes, chemicals or substances the presence of which requires
investigation or remediation under any Environmental Law.
(2) The term "environmental law" shall mean the common law
and all federal, state, local and foreign laws of regulations, codes,
orders, decrees, judgments, or injunctions issued, promulgated, approved or
entered thereunder, relating to pollution or protection of the environment,
including, but not limited to, laws relating to (i) emissions, discharges,
releases or threatened releases of hazardous Substances into the
environment (including, but not limited to, ambient air, surface water,
ground water, land surface or surface strata), (ii) the manufacture,
processing, distribution, use, generation, treatment, storage, disposal,
transport, or handling of Hazardous Substances, and (iii) underground
storage tanks containing Hazardous Substances, and related piping,
emissions, discharges, releases or threatened releases thereon.
(3) The term "Losses" shall mean any and all costs and
expenses (including, but not limited to, reasonable attorneys' fees),
damages and other losses actually incurred by the party seeking
indemnification, net of any insurance
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proceeds to which the party seeking indemnification is entitled by virtue
of such costs, expenses, damages and losses.
(4) The term "Claim of Liability" shall mean any and all
claims, liabilities, obligations, Losses or damages suffered or incurred as
a result of (i) any suit, action, legal or administrative proceeding
(including any investigation), or demand asserted, threatened or instituted
by any party, and including but not limited to any governmental agency or
authority, (ii) failure to comply with requirements imposed by all federal,
state and local environmental laws and regulations, including but not
limited to all costs of the investigation, remediation or costs otherwise
incurred in complying with applicable laws and regulations and (iii) any
and all judgments, liens, court costs, legal fees, and other costs of
discovery and defense, all net of any insurance proceeds to which the party
seeking indemnification is entitled by virtue of such claim, liability,
obligation, loss or damage.
(b) Hazardous Substances Used by Sublessee. During the term of
the Sublease, Sublessee may use certain limited types and quantities of
Hazardous Substances on the Premises. These Hazardous Substances, along
with their quantitative limits, are listed in Exhibit "C" hereto.
(c) Other Hazardous Substances. Except as to those Hazardous
Substances listed in Exhibit "C" in the limited quantities set forth in
Exhibit "C", and such Hazardous Substances as are intended for and used for
normal building cleaning, maintenance and repair, Sublessee shall not use
or store any Hazardous Substance on the Premises without the prior written
consent of the Sublessor. With regard to other Hazardous Substances that
Sublessee proposes to use on the Premises, and with regard to Hazardous
Substances listed in Exhibit "C" which Sublessee proposes to use in
quantities exceeding the limits set forth in Exhibit "C", Sublessor, taking
into account such factors as Sublessor may reasonably determine to be
relevant, including, without limitation, any consents required from Master
Lessor, shall promptly grant or withhold consent to the proposed use of
such Hazardous Substances in the quantities proposed (and in any case,
failure to grant or withhold consent within 21 days of a written request
from Sublessee shall be deemed to be Sublessor's consent). In addition,
Sublessor may condition its consent to the use or presence of any Hazardous
Substance by Sublessee upon Sublessee's giving Sublessor such additional
assurances as Sublessor reasonably deems necessary to protect itself, the
public, the Premises, and the environment against damage, contamination or
injury and/or liability therefrom or therefor, including, but not limited
to, the installation (and removal on or before Sublease expiration or
earlier termination) of reasonably necessary protective modifications to
the Premises and/or the deposit of a reasonable additional Security
Deposit.
(d) Applicable Laws. Any handling, use or storage by Sublessee of
Hazardous Substances on the Premises (whether or not such use is identified
on Exhibit "C" or is otherwise consented to by Sublessor,) shall be
conducted in strict compliance with applicable Environmental Laws.
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(e) Release of Substances. Sublessee shall not cause any
Hazardous Substance to be spilled, discharged or released in, on, under or
about the Premises, or allow any Hazardous Substance to be spilled,
discharged or released in, on or under the Premises; provided, however,
that Sublessee shall not be responsible pursuant to this provision for
Hazardous Substances in or from the ambient air or groundwater spilled,
discharged or released off the Premises and not caused by Sublessee or its
affiliates, officers, employees, agents, contractors, contractors'
subcontractors or business invitees; and provided, further, that this
paragraph shall not prohibit Sublessee from causing or allowing (w) air
emissions on the Premises in the ordinary course of its business and in
compliance with applicable Environmental Laws and any applicable permits
(but Sublessee in not hereby released from its obligations for any Losses
or Claims of Liability resulting from, relating to or arising from such
emissions) or (x) the use of the plumbing or sanitary sewer for movement of
Hazardous Substances in the ordinary course of its business and in
compliance with applicable Environmental Laws and any applicable permits
(but Sublessee in not hereby released from its obligations for any Losses
or Claims of Liability resulting from, relating to or arising from spills,
releases or discharges to the environment from such use).
(f) Other Restrictions. Sublessee shall not cause or allow on the
Premises: (i) any concrete vaults, sumps or containment channels to be used
as primary containment for any liquid containing Hazardous Substances or as
secondary containment for any volatile organic compounds; (ii) installation
of any underground storage tanks; or (iii) any activity requiring a
hazardous waste treatment, storage or disposal permit under the federal
Resource Conservation and Recovery Act or the California Health and Safety
Code Div. 20, Chapter 6.5 (Hazardous Waste Control); provided, however,
that this paragraph 10 shall not prohibit activities or conditions subject
to and in compliance with the conditional authorization or conditional
exemption provisions of the California Health and Safety Code as currently
set forth at Sections 25200.3 or 25201.5.
(g) Termination. In addition to its rights hereunder, Sublessor
shall have the option of terminating this Sublease if at any time Sublessee
has failed to comply with any of its obligations under this paragraph 10
and (i) an imminent and substantial endangerment to public health or
welfare or the environment has resulted or (ii) the failure consists of a
refusal or failure, after written notice and the passage of seven (7) days,
to provide documents or information or access to the Premises as required;
provided, however, that Sublessee's obligations under this paragraph 10
shall survive such termination of this Sublease.
(h) Duty to Inform Sublessor; Duty to Monitor.
(1) If Sublessee knows, or has reasonable cause to believe
that a Hazardous Substance has been released or otherwise come to be
located in, on, under or about the Premises, under circumstances
constituting a default by Sublessee under paragraph 10 or otherwise under
this Sublease, and which (i) reaches soil or groundwater or (ii) is subject
to a reporting or recording requirement under applicable Environmental Law,
Sublessee shall give notice of such fact to Sublessor an soon as reasonably
possible without interfering with emergency response and government
notification activities. In
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such event, Sublessee will furnish to Sublessor a copy of any and all
reports that are generated, and correspondence with governmental agencies
relating to the release, within two (2) business days of generation,
transmission or receipt of the material. Sublessee shall also give
Sublessor a copy of any statement, report, notice, registration,
application, permit, business plan, license, claim, action or proceeding
given to, or received from, any governmental authority or private party, or
persons entering or occupying the Premises, concerning any Hazardous
Substance or contamination in, on, or about the Premises, promptly (and in
any event within two (2) business days) upon request after any such
materials are given or received. Sublessee shall as soon as practicable
upon receipt notify Sublessor in writing of the existence of any matter
that constitutes a claim of Liability asserted, threatened or instituted by
any third party against Sublessee in connection with the presence of
Hazardous Substances upon, about or beneath the Promises or migrating to or
from the Premises, or arising out of the violation of any Environmental
Laws pertaining to the Premises or the activities thereon. In addition,
Sublessee shall notify Sublessor of and provide a copy of the following
environmental reports or inquiries relating to the Premises: citations,
environmental inquiries, reports filed pursuant to any environmental
reporting requirements imposed by any Environmental Law, including reports
filed pursuant to any Environmental Law relating to underground tanks. Upon
request of Sublessor, Sublessee will furnish to Sublessor a copy of any and
all environmental reports, correspondence or inquires relating to the
Premises, including but not limited to all permit applications, permits and
reports, an well as reports concerning conditions on the Premises,
including those which may be characterized as confidential.
(2) Sublessee covenants that it shall actively and
diligently monitor all aspects of its operations and activities (and those
of its agents, constructors, employees or invitees) which involve in any
way the use, production, generation or other handling of Hazardous
Substances on the Premises. Sublessee shall promptly advise Sublessor of
any material changes in operations involving Hazardous Substances.
11. Parking. Sublessee shall be entitled to use Sublessee's Pro Rata
Share of any parking spaces to which Sublessor is entitled pursuant to the
Master Lease.
12. Incorporation of Sublease.
(a) All of the terms and provisions of the Master Lease, except as provided
in subparagraph (b) below, are incorporated into and made a part of this
Sublease and the rights and obligations of the parties under the Master Lease
are hereby imposed upon the parties hereto with respect to the Premises,
Sublessor being substituted for the "Landlord" in the Master Lease, and
Sublessee being substituted for the "Tenant" in the Master Lease. It is further
understood that where reference is made in the Master Lease to the "Premises,"
the same shall mean the Premises as defined herein; where reference is made to
the "Commencement Date," the same shall mean the Commencement Date as defined
herein; and where reference is made to the "Lease," the same shall mean this
Sublease.
(b) The following paragraphs of the Master Lease are not incorporated
herein: 1, 3, 4, 5, 6, 8, 11, 23, 24, 35, 36, 38, and the Lease Amendment.
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(c) Sublessee hereby assumes and agrees to perform for
Sublessor's benefit, during the term of this Sublease, all of Sublessor's
obligations with respect to the Premises under the Master Lease, except as
otherwise provided herein. Sublessee shall not commit or permit to be committed
any act or omission which violates any term or condition of the Master Lease.
Except as otherwise provided herein, this Sublease shall be subject and
subordinate to all of the terms of the Master Lease.
13. Insurance. Sublessee shall be responsible for compliance with the
insurance provisions of the Master Lease. Such insurance shall insure the
performance by Sublessee of its indemnification obligations hereunder and shall
name Master Lessor and Sublessor as additional insureds. All insurance required
under this Sublease shall contain an endorsement requiring thirty (30) days
written notice from the insurance company to Sublessee and Sublessor before
cancellation or change in the coverage, insureds or amount of any policy.
Sublessee shall promptly provide Sublessor with certificates of insurance
evidencing such coverage.
14. Default. In addition to defaults contained in the Master Lease,
failure of Sublessee to make any payment of Rent when due hereunder shall
constitute an event of default hereunder.
15. Notices. The addresses specified in the Master Lease for receipt of
notices to each of the parties are deleted and replaced with the following:
To Sublessor at: Clontech Laboratories, Inc.
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Attn: CEO and CFO
With copy to: Cooley Godward LLP
5 Palo Alto Square
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Attn: ▇▇▇▇ ▇. ▇▇▇▇
To Sublessee at:
TelCom Semiconductor, Inc.
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Attn: CEO and CFO
16. Sublessor's Obligations.
(a) To the extent that the provision of any services or the performance of
any maintenance or any other act respecting the Premises or Building is the
responsibility of Master Lessor (collectively "Master Lessor Obligations"), upon
Sublessee's request, Sublessor shall make reasonable efforts to cause Master
Lessor to perform such Master Lessor Obligations, provided, however, that in no
event shall Sublessor be liable to Sublessee for any liability, loss or damage
whatsoever in the event that Master Lessor should fail to perform the same, nor
shall Sublessee be entitled to withhold the payment of Rent or terminate this
Sublease. It is expressly
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understood that the services and repairs which are incorporated herein by
reference, including but not limited to the maintenance of exterior walls,
structural portions of the roof, foundations, walls and floors, will in fact be
furnished by Master Lessor and not by Sublessor, except to the extent otherwise
provided in the Master Lease. In addition, Sublessor shall not be liable for any
maintenance, restoration (following casualty or destruction) or repairs in or to
the Building or Premises, other than its obligation hereunder to use reasonable
efforts to cause Master Lessor to perform its obligations under the Master
Lease. With respect to any maintenance or repair to be performed by Master
Lessor respecting the Premises, the parties expressly agree that Sublessee shall
have the right to contact Master Lessor directly to cause it to so perform.
(b) Except as otherwise provided herein, Sublessor shall have no other
obligations to Sublessee with respect to the Premises or the performance of the
Master Lessor Obligations.
17. Early Termination of Sublease. If, without the fault of Sublessor,
the Master Lease should terminate prior to the expiration of this Sublease,
Sublessor shall have no liability to Sublessee on account of such termination.
To the extent that the Master Lease grants Sublessor any discretionary right to
terminate the Master Lease, whether due to casualty, condemnation, or otherwise,
Sublessor shall be entitled to exercise or not exercise such right in its
complete and absolute discretion.
18. Consent of Master Lessor and Sublessor. If Sublessee desires to take
any action which requires the consent or approval of Sublessor pursuant to the
terms of this Sublease, prior to taking such action, including, without
limitation, making any alterations, then, notwithstanding anything to the
contrary herein, (a) Sublessor shall have the same rights of approval or
disapproval as Master Lessor has under the Master Lease, and (b) Sublessee shall
not take any such action until it obtains the consent of Sublessor and Master
Lessor, as may be required under this Sublease or the Master Lease. This
Sublease shall not be effective unless and until any required written consent of
the Master Lessor shall have been obtained.
19. Indemnity. Sublessee shall indemnify, defend, protect, and hold
Sublessor and Master Lessor harmless from and against all actions, claims,
demands, costs liabilities, losses, reasonable attorneys' fees, damages,
penalties, and expenses (collectively "Claims") which may be brought or made
against Sublessor or which Sublessor may pay or incur to the extent caused by
(i) a breach of this Sublease by Sublessee, (ii) any violation of law by
Sublessee or its employees, agents, contractors or invitees (collectively,
"Agents") relating to the use or occupancy of the Premises, (iii) any act or
omission by Sublessee or its Agents resulting in contamination of any part or
all of the Premises by Hazardous Materials, or (iv) the negligence or willful
misconduct of Sublessee or its Agents.
20. Brokers. Each party hereto represents and warrants that it has dealt
with no broker in connection with this Sublease and the transactions
contemplated herein. Each party shall indemnify, protect, defend and hold the
other party harmless from all costs and expenses (including reasonable
attorneys' fees) arising from or relating to a breach of the foregoing
representation and warranty.
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21. Surrender of Premises. Upon the expiration or earlier termination of
this Sublease, Sublessee shall surrender the Premises in the same condition as
they were in on the Commencement Date, except for ordinary wear and tear, and
except that Sublessee will remove those items specified in Schedule B to the
TelCom Termination Agreement.
22. No Third Party Rights. The benefit of the provisions of this Sublease
is expressly limited to Sublessor and Sublessee and their respective permitted
successors and assigns. Under no circumstances will any third party be
construed to have any rights as a third party beneficiary with respect to any of
said provisions.
23. Contingency. The Sublease Agreement between the Sublessor and the
Sublessee is contingent upon execution by Sublessor and Master Lessor of the
Lease Amendment and consent by Master Lessor of this Sublease.
24. Counterparts. This Sublease may be signed in two or more
counterparts, each of which shall be deemed an original and all of which shall
constitute one agreement.
In Witness Whereof, the parties have executed this Sublease as of the date
first written above.
"Sublessor" "Sublessee"
Clontech laboratories, Inc. TelCom Semiconductor, Inc.
By:__________________________ By:__________________________
Title: ______________________ Title: _____________________
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