SECOND AMENDMENT TO LEASE
AND PARTIAL TERMINATION AGREEMENT
This Second Amendment to Lease and Partial Termination Agreement (the
"Agreement") is dated as of October 30, 2002, for reference purposes only, and
is made between Orchard Jay Investors, LLC, a California limited liability
company, ("Landlord") and Cylink Corporation, a California corporation
("Tenant"), with reference to the following facts and circumstances, which are
conclusively agreed between the parties:
A. Landlord and Tenant are parties to a lease dated for
reference purposes as of May 10, 1999 as amended from time to time
(collectively referred to herein as the "Lease"). All capitalized words
having an assigned meaning in the Lease shall continue to have such
meaning in this Agreement unless explicitly modified. Landlord is the
successor in interest to an ownership group made up of Landlord and
David J. Brown.
B. Pursuant to the Lease, Tenant has leased from Landlord
three buildings located in Santa Clara, California at 3101-3121 Jay
Street ("3101 Building"), 3131 Jay Street, ("3131 Building"), and 3151
Jay Street ("3151 Building").
C. Landlord and Tenant have discussed terminating this Lease
solely as to the 3101 and 3131 Buildings (collectively the "Terminated
Premises") while continuing the Lease in effect in regard to the 3151
Building.
D. Landlord and Tenant have agreed that the Lease will be
terminated under the terms and conditions hereof solely as to
Terminated Premises, and not as to the 3151 Building, which will
continue to be subject to the Lease as amended hereby.
Now, therefore, in consideration of all of the foregoing facts and
circumstances, and for good and valuable consideration, the receipt of which is
acknowledged by each party, Landlord and Tenant agree to and do amend the Lease
as follows:
1. Termination Of Lease As To Each Of The Terminated Premises
A. On November 1, 2002 (the "Building 3101 Termination Date - Second
Floor"), the Lease shall terminate and end as to the second floor of Building
3101, and Tenant shall deliver possession of the second floor of Building 3101
to Landlord as set forth below. On January 31, 2003 (the "Building 3101
Termination Date - First Floor"), the Lease shall terminate and end as to the
first floor of Building 3101, and Tenant shall deliver possession of the first
floor of Building 3101 to Landlord as set forth below. Notwithstanding the
foregoing, however, provisions herein whereby Tenant is relieved of
responsibilities and liabilities for the 3101 Building shall take effect
on November 1, 2002, and Tenant shall not incur or pay any financial liabilities
on the first floor of Building 3101 during the period from November 1, 2002 to
January 31, 2003.
B. On March 1, 2003 (the "Building 3131 Termination Date"), the Lease
shall terminate and end as to Building 3131, and Tenant shall deliver possession
of Building 3131 to Landlord as set forth below. Tenant will use commercially
reasonable efforts to deliver possession of Building 3131 to Landlord prior to
March 1, 2003, but notwithstanding such delivery, shall be obligated to continue
to pay Base Monthly Rent and all Additional Rent due under the Lease on Building
3131 until March 1, 2003.
2. Lease Restructuring Consideration
Concurrently with the full execution of this Agreement, the parties
agree to the following: (a) Tenant will remit to Landlord's lender the sum of
$2,915,220.40 in cash in consideration of said lender's consent to this
Agreement; (b) Tenant consents to the release of $285,018.60 currently held as
cash security for the Lease to Landlord's lender, also in consideration for said
lender's consent hereto; and (c) upon receipt of the aforementioned sums,
Landlord will cause Landlord's lender, with the consent of Tenant, which is
given hereby, to return to Tenant uncashed a Letter of Credit in the aggregate
face amount of $600,000.00 issued by Imperial Bank (now Comerica Bank), which is
currently being held by Landlord's lender as security for this Lease. The
parties will deal with the other Letter of Credit on Imperial Bank in favor of
Landlord's lender as set forth in Paragraph 10.
Upon return of the $600,000.00 Letter of Credit, Landlord and its
lender shall not have to account further to Tenant for this Letter of Credit or
the released cash security, and such shall no longer be deemed to be security
for this Lease. This Agreement shall be of no force or effect unless collected
funds in the aforementioned amounts are remitted to Landlord's lender.
3. Delivery Of Possession
A. On the Termination Date specified above for each Building (or, in
the case of the 3101 Building, each floor of each Building), Tenant shall
deliver possession of such Building to Landlord in accordance with all
provisions of the Lease, including but not limited to the provisions of
Paragraph 15.1 of the Lease. It is understood that on the Building 3101
Termination Date - Second Floor, Tenant is not actually delivering possession of
the space, because Tenant never took possession of the space, its rights taking
effect only after the current Tenant delivered possesion, which has not
happened.
B. Prior to delivery of the 3131 Building, Tenant shall, as its sole
cost and expense (a) perform those portions of the work outlined in the letter
agreement between Landlord and Tenant dated June 17, 1999 that are specified by
Landlord; and (b) restore the elements designated by Landlord of the first floor
of the said Building to their former condition. The total
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Second Amendment and Partial Lease Termination Agreement Page 2 of 11
scope of work to be performed by Tenant under subparagraphs (a) and (b) above is
as shown on Exhibit "A" attached hereto.
C. If Tenant does not complete its surrender and restoration
obligations with respect to the 3131 Building before March 1, 2003, then
Tenant's obligation to pay Base Monthly Rent and Additional Rent on the 3131
Building shall continue until such obligations are fulfilled. Failure to turn
over possession on or before the date which is ninety (90) days after March 1,
2003 shall constitute a default under the Lease without requirement of any
statutory or lease notice or cure period.
D. If Landlord so requests in writing, Tenant will contract for and
have performed work in addition to the work required under Paragraph 3B above on
the 3131 Building per Landlord's written direction and with Landlord's selected
contractor(s) at Tenant's expense, provided, however, that Tenant will be
immediately reimbursed in cash for these costs in full by Landlord. Upon
request, Tenant will assign to Landlord all of Tenant's rights under any
contracts entered into in connection with the work to be performed by Tenant
pursuant to this Paragraph. In regard to such work, Tenant assumes no liability
for the work performed and Landlord hereby agrees to indemnify, defend and hold
Tenant harmless from and against any claims, losses, liabilities, damages and
costs, including, without limitation, claims by contractors, arising out of such
additional work and such indemnity shall survive termination of this Lease as to
the 3131 Building; provided, however, Landlord shall not be obligated to
indemnify Tenant for any claims, losses, liabilities, damages and costs
resulting from the gross negligence or willful misconduct of Tenant or any of
Tenant's agents (other than the contractors). In the event that the performance
of this work is the sole factor preventing or delaying delivery of the 3131
Building or any part thereof to Landlord, Tenant shall not incur any liability
for such delay, including rent.
E. As security for performance of its restoration and surrender
obligations, Tenant shall post an additional cash security deposit, to be dealt
with as a part of the Security Deposit under the Lease, in the sum of $75,000 on
full execution hereof. Said deposit shall be in addition to and not in place of
the remaining Lease Security Deposit referenced below. Upon Tenant's surrender
of the 3131 Building and completion of its obligations of restoration,
construction, and surrender, Landlord shall account to Tenant for any
application of this sum to Tenant's obligations, and thereafter shall return the
unapplied balance of said sum to Tenant less Landlord's actual and reasonable
legal costs associated with this Lease restructuring and any other costs
actually incurred with Landlord's lender in regard to this matter, including but
not limited to any of the lender's legal and other fees which the lender
requires to be paid in regard to this transaction.
F. Notwithstanding anything set forth in this Paragraph, it is agreed
that the Terminated Premises will, where applicable, be delivered subject to the
Transferred Subleases (as defined below).
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Second Amendment and Partial Lease Termination Agreement Page 3 of 11
4. Furniture and Cubicles
A. On the Building 3101 Termination Date - First Floor, Tenant will
transfer to Landlord and leave in the space such furniture and cubicles located
on said First Floor, as Landlord shall designate in writing, at no charge to
Landlord. Tenant will receive reasonable notice of the items selected by
Landlord prior to its moving date - thus, if such notice cannot be given before
the Building 3101 Termination Date - First Floor, then Tenant will be able to
postpone moving all items from such First Floor until it has had reasonable
notice. As used herein, notice shall be deemed reasonable if it is at least
three (3) business days, but the parties will attempt to accommodate each other
in regard to shorter notices if possible. Tenant will deliver such items to
Landlord free and clear of all liens and encumbrances, and will supply such
documentation as Landlord may reasonably request showing that these items are
free and clear.
B. On the Building 3131 Termination Date, Tenant will transfer to
Landlord and leave in the space such furniture and cubicles as (1) are not
needed for Tenant's future operations and (2) which Landlord designates in
writing on or before fifteen (15) days prior to the said Termination Date, at no
charge to Landlord. Tenant will deliver such items to Landlord free and clear of
all liens and encumbrances, and will supply such documentation as Landlord may
reasonably request showing that these items are free and clear. In the event
that Tenant proposes to move prior to the Building 3131 Termination Date, then
Tenant will give Landlord written notice of the proposed moving date and allow
Landlord at least seven (7) days opportunity to make a written designation under
this Paragraph 4B prior to moving such items.
5. Abandoned Property
Landlord and Tenant agree that all property belonging to Tenant which
remains on the Terminated Premises after they are delivered to Landlord that is
not covered by Paragraph 4 above, shall be deemed to have been abandoned by
Tenant, which waives all of its rights in such property, that all such property,
in the aggregate, shall be conclusively agreed between the parties to have a
fair market value of less than $300.00, that all such property may be disposed
of by Landlord as its own property without further notice to Tenant, and that
Tenant waives any statutory requirements of notice, auction, sale, or accounting
relating to such abandoned property, but Tenant shall still be obligated to
reimburse Landlord for any costs actually incurred by Landlord in regard to the
removal or disposal of such property.
6. Subleases; Subtenants; and Subrent
(A) Tenant is the Sublandlord under certain Subleases identified as
follows and referred to herein as the "Transferred Subleases":
Sublease between ICG Communications, Inc., and Cylink Corporation
dated May
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Second Amendment and Partial Lease Termination Agreement Page 4 of 11
21, 2001 as to 10,855 square feet of space comprising a portion of the
first floor of 3101 Jay Street, commonly known as Suite 101 (including
all rights of Tenant under the Consent of Landlord to such Sublease
dated as of September 11, 2001, as subsequently approved by the
Bankruptcy Court).
Sublease between Cylink Corporation and Intel Corporation dated
January 12, 2001 as to 10,855 square feet of space comprising a
portion of the first floor of 3101 Jay Street, commonly known as Suite
110 (including all rights of Tenant under the Consent of Landlord to
such Sublease dated as of February 16, 2001).
As of November 1, 2002, Tenant shall take all action necessary pursuant
to the Transferred Subleases, and in particular pursuant to the provisions of
the two Consents, to instruct the Subtenants that all rent and other payments
are to be made directly to Landlord and not to Tenant. Any sums received after
November 1, 2002 from these Subtenants (except sums relating to periods ending
on or before October 31, 2002) shall be remitted to Landlord immediately by
transfer of the check, duly endorsed by Tenant, to Landlord without deposit in
Tenant's accounts.
Concurrently with full execution hereof, Tenant shall convey the
Transferred Subleases to Landlord or Landlord's nominee by a transfer that will
be effective on February 1, 2003. Such conveyance shall be by Assignment of
Sublease and Consent of Landlord as attached hereto as Exhibit B, and Tenant
agrees to sign such document. Such documents shall be executed prior to the
execution of this Agreement, but shall take effect conditioned on the parties
executing this Agreement and on the date specified therein. Landlord will
indemnify, hold harmless, and defend Tenant against any and all claims,
liabilities, damages, losses, or injuries arising from any failure on the part
of Landlord or Landlord's nominee to perform all of the Tenant's obligations as
Sublandlord under the Transferred Subleases arising from and after the effective
date of such transfers or arising during the November 1, 2002 to January 31,
2003 period. On full execution hereof, Tenant shall transfer to Landlord any
security deposits, including all rights under any letter of credit, that are in
Tenant's possession or control under the Transferred Subleases.
(B) With the exception of Subtenants and Subleases listed above, when
delivered to Landlord, the Terminated Premises shall be unoccupied by Tenant or
any subtenant or other person, and all subleases shall have been terminated and
possession recovered from the subtenant(s) on or before the Termination Date.
7. Duties Of Tenant
Tenant's duty to pay Base Monthly Rent and Additional Rent on the
Terminated Premises shall continue until all of Tenant's obligations hereunder
have been completed with respect to the applicable Terminated Premises. Tenant
shall indemnify, defend, and hold harmless Landlord from and against any and all
claims, liabilities, damages, losses, or injuries suffered by Landlord
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Second Amendment and Partial Lease Termination Agreement Page 5 of 11
due to Tenant's failure to timely perform the said obligations, including but
not limited to Landlord's reasonable attorney's fees and costs, any claims made
by any succeeding tenant, and any losses to Landlord due to lost opportunities
to lease to succeeding tenants.
8. Payment Obligations Pending Termination
Tenant is obligated to and shall promptly meet all payment obligations
to Landlord arising during the period prior to and including the Termination
Dates for each Building. Such obligations shall include, without limitation, the
obligation to pay Base Monthly Rent and all Additional Rent arising during such
period. As soon as reasonably practicable after the Termination Date for a
Building or a floor of a Building, Landlord will reconcile Common Operating
Expenses and other items of Additional Rent relating to periods of time up to
and including the Termination Date with regard to such Building (or floor), and
present Tenant with a written reconciliation of such matters (the "COE
Reconciliation"). Tenant shall promptly pay to Landlord any sums due pursuant to
such reconciliation, not later than ten (10) days after presentation of
Landlord's statement, or if such reconciliation shows that Landlord is required
to pay Tenant, then Landlord shall make such payment within ten (10) days after
presentation of Landlord's reconciliation.
9. Termination Of Obligations; Continuing Obligations
From and after each Termination Date, all duties, obligations, and
liabilities of Tenant to Landlord with respect to that particular portion of the
Terminated Premises for periods after the applicable Termination Date, including
the obligation for Base Monthly Rent and Additional Rent, shall cease, except as
expressly set forth herein. However, Tenant shall continue to be subject to all
obligations and duties under the Lease and this Agreement as to the Remaining
Premises, and shall continue to be subject to all obligations and duties
relating to the Terminated Premises which would survive the expiration or
earlier termination of the Lease, including but not limited to all obligations
relating to Hazardous Materials.
10. Continuance of Lease on 3151 Building and On 3131 Building Through
the Building 3131 Termination Date
The 3151 Building shall remain subject to all terms and conditions of
the Lease, notwithstanding any other provision hereof, and shall not be
terminated, but shall continue with the same rent (per square foot) as currently
paid for that space and subject to any Lease provisions relating to increased
rent, for the remaining term of the Lease.
The 3131 Building shall remain subject to all terms and conditions of
the Lease notwithstanding any other provision hereof, including the duty to pay
rent at the current rate per square foot, to and including the Building 3131
Termination Date.
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Second Amendment and Partial Lease Termination Agreement Page 6 of 11
Until the Building 3131 Termination Date, the Base Monthly Rent for
3131 Building and 3151 Building from November 1, 2002 (Month 39) through
February 28, 2003 (Month 42) shall be $190,579.19 per month.
Following the Building 3131 Termination Date (and provided the Base
Monthly Rent for the 3131 Building does not continue because of a failure to
deliver possession of the 3131 Building or any other circumstance under which
this Agreement provides that the rent thereon shall continue), the Base Monthly
Rent for the 3151 Building will be $92,922.97 per month starting in March, 2003
(Month 43) and thereafter as determined under the following table. In this
table, the numbered months indicate the said numbered months running from the
Commencement Date of the Lease.
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Mo. Thru Base Monthly Rent Base Monthly Rent
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3151 and 3131 3151 Only
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39 42 $190,579.18
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43 48 $92,922.97
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49 60 $95,710.66
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61 72 $98,581.98
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73 84 $101,539.44
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85 96 $104,585.62
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97 108 $107,723.19
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109 120 $110,954.88
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Upon full execution hereof, and as a condition of effectiveness of this
Agreement, Tenant will supply Landlord with a letter of credit in the sum of
$667,623.60 which shall serve as security for the Lease going forward, including
any and all obligations set forth herein. Said Letter of Credit shall be in
favor of Landlord's lender, shall comply in all other regards with the Letter of
Credit requirements of the Lease, and shall contain a provision approved by
Landlord under which the Letter of Credit is automatically self-renewing on an
annual basis. Notwithstanding anything to the contrary in the Lease, such
deposit shall not be subject to any reduction during the Lease Term. Tenant may
satisfy this requirement by leaving the existing Letter of Credit in the face
amount of $800,000.00 originally drawn on Imperial Bank (now Comerica Bank) on
file and effective as a deposit, following which Tenant will, as soon as
available from its bank, deposit an Amendment by which the said Letter of Credit
will be reduced in value to $667,623.60 and a self-renewing provision will be
added such that the Letter of Credit will automatically renew unless the bank
upon which it is drawn gives notice at least thirty days before expiration that
it will not be renewed. Within fifteen (15) days of full execution hereof,
Tenant will provide a clean new Letter of Credit, without separate amendments,
in the same sum, upon which event Landlord's lender will return to Tenant the
$800,000,00 Letter of Credit and Amendment. The parties will cooperate to
effectuate an exchange of one Letter of Credit for the other.
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Second Amendment and Partial Lease Termination Agreement Page 7 of 11
11. Tenant's Allocated Share
From and after the Building 3131 Termination Date, Tenant's Share of
the 3151 Building shall be 100% and Tenant's Allocated Share of the Project
shall be 32.78%.
12. Parking Spaces
The term "Tenant's Allocated Parking Stalls" is amended to 362 stalls
after the Building 3101 Termination Date and to mean 177 stalls from and after
the Building 3131 Termination Date.
13. Effect On Options; Rights Of First Refusal; Rights of First Offer
Effective on full execution hereof, Tenant waives and gives up any and
all options to extend or renew the Lease Term, and any and all rights of first
refusal or rights of first offer, as to the Terminated Premises only, while
retaining any rights which have been granted as to the 3151 Building.
14. Release:
Upon the Termination Date for each of the Terminated Premises, Tenant,
for itself and for all other persons associated with Tenant, releases Landlord
and any officers, directors, agents, servants, employees, shareholders,
partners, joint venturers, lenders, and/or all other persons associated with
Landlord, from any and all claims, liabilities, obligations, demands, actions,
causes of action, and/or lawsuits relating to or arising from each Terminated
Premise. This release and all covenants and agreements contained herein shall be
for the benefit of, and be enforceable against Tenant by, the officers,
directors, agents, servants, employees, shareholders, partners, joint venturers,
and lenders of Landlord, and all other persons associated with Landlord.
a. Claims Released: The claims released hereby shall be all claims of
whatever nature, whether now known or unknown, whether suspected or
unsuspected, whether latent or patent, whether such claims are or could
be anticipated, and whether such claims have arisen now, or arise in
the future.
b. Acceptance of Responsibility for Unknown Claims: Tenant enters into
this release with the knowledge that there may be unknown,
unanticipated, or unsuspected claims which are released and waived by
executing this release, and that there is a risk that Tenant will incur
or suffer losses, damages, or injuries which are in some way caused by
the transactions and occurrences referred to above, or which would, but
for this release, be the legal responsibility of Landlord. Tenant
agrees to accept the above-described risks with the understanding that
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Second Amendment and Partial Lease Termination Agreement Page 8 of 11
THIS RELEASE APPLIES TO ALL UNKNOWN OR UNANTICIPATED RESULTS OF THE
TRANSACTIONS, OCCURRENCES, AND DISPUTES DESCRIBED ABOVE, AS WELL AS
THOSE KNOWN AND ANTICIPATED, and Tenant agrees to accept and bear full
responsibility for any losses, injuries, or damages which are suffered
or incurred as a result of unknown, unanticipated, or unsuspected
claims, losses, damages, or injuries.
c. Waiver of Civil Code Section 1542: Tenant agrees that this is a full
and final release applying to all unknown and unanticipated claims or
damages suffered by the Tenant, as well as to those claims and/or
damages now known or disclosed, and Tenant waives and gives up all
rights or benefits which might otherwise accrue to Tenant, now or in
the future, under the terms of California Civil Code Section 1542,
which reads as follows:
"A general release does not extend to claims which the creditor
does not know or suspect to exist in his favor at the time of
execution of the release, which if known by him must have
materially affected his settlement with the debtor."
Tenant further waives any rights and benefits which might otherwise
accrue to Tenant under the provisions of any similar statute which
later comes into effect in California or which now or later is in
effect under the law of any other jurisdiction.
d. Successors: This agreement shall be binding on the heirs, assigns,
and successors of each party.
e. Survival: Notwithstanding anything in this Paragraph 14, the terms,
provisions, and conditions of this Second Amendment to Lease and
Partial Termination Agreement shall survive and be unaffected by the
release contained in this Paragraph.
15. Effect of Agreement:
This Agreement modifies the Lease. In the event of any conflict or
discrepancy between the Lease and/or any other previous documents between the
parties and the provisions of this Agreement, then the provisions of this
Agreement shall control. All capitalized words having an assigned meaning in the
Lease shall continue to have such meaning in this Agreement unless explicitly
modified hereby. Except as modified herein, the Lease shall remain in full force
and effect. This Agreement has been negotiated between sophisticated parties,
both represented by counsel, and each party waives any presumptions under which
the Agreement is to be construed against the drafting party. The tender of this
Agreement by Landlord does not constitute an offer to enter into the Agreement,
and this Agreement shall be accepted by Landlord only by signing
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Second Amendment and Partial Lease Termination Agreement Page 9 of 11
and delivering a duplicate original hereof to Tenant
16. Brokerage Commissions
Neither party has been represented by a real estate broker in regard to
the transaction represented by this Agreement, and no brokerage commissions or
finder's fees are due in regard to the transaction. Tenant will hold Landlord
harmless and indemnify Landlord against any claim, loss, or damage, including
reasonable attorney's fees, in regard to a brokerage commission or finder's fee
claim by a broker or finder under contract with or working with Tenant. Landlord
will hold Tenant harmless and indemnify Tenant against any claim, loss, or
damage, including reasonable attorney's fees, in regard to a brokerage
commission or finder's fee claim by a broker or finder under contract with or
working with Landlord.
17. Bankrupty
In the event of a bankruptcy filing, assignment for benefit of
creditors, or any other form of insolvency liquidation with respect to the
Tenant, if such takes place on a date which may require Landlord or its lender
to return to the Tenant or Tenant's Representative ("Representative" means and
includes a trustee or assignee for benefit of creditors) any sums remitted or
released hereunder to Landlord or Landlord's lender, and if Tenant or Tenant's
Representative reject the Lease as to the 3151 Building, Tenant agrees that the
releases granted hereby shall (at Landlord's option exercised by notice in
writing to Tenant and/or Tenant's Representative) be of no force or effect, and
that if Landlord exercises such option, Landlord shall be entitled to full
performance under the Lease and to make and have approved such claims as shall
be based on full performance under the Lease, without regard to any releases and
terminations granted hereby, provided only, that Tenant shall be entitled to
credit sums paid hereunder (to the extent such sums are ultimately retained by
Landlord in such proceeding) against any such claims.
18. Authority
Each individual executing this Agreement represents and warrants that
he or she is duly authorized to and does execute and deliver this Agreement
pursuant to express authority from Tenant or Landlord, as applicable, pursuant
to and in accordance with the By-Laws and the other organic documents of the
signing party.
19. Cooperation and Information
During the time while Tenant continues to occupy the 3131 Building,
Tenant will cooperate with Landlord's reasonable efforts to market and show the
Building through its management firm and/or brokers. From time to time on
Landlord's reasonable request, and except as otherwise provided by law, Tenant
will provide Landlord with updated, detailed
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Second Amendment and Partial Lease Termination Agreement Page 10 of 11
information relating to its efforts to achieve sustainability by cutting
expenses, reorganizing, and increasing revenues, as well as by equity infusion,
additional debt, or sale to or merge with a more profitable or better
capitalized company.
LANDLORD: TENANT:
Orchard Jay Investors, LLC, a California Cylink Corporation, a California
limited liability company corporation
By: /s/ Michael J. Biggar By: /s/ Chris Chillingworth
------------------------------------- -----------------------------
Michael J. Biggar Chris Chillingworth
Managing Member Chief Financial Officer
Dated: October 30, 2002 Dated: October 30, 2002
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Second Amendment and Partial Lease Termination Agreement Page 11 of 11
[ EXHIBIT A FLOOR PLAN ]
EXHIBIT A
ASSIGNMENT OF SUBLEASE; CONSENT OF LANDLORD
There is a Lease Agreement (the "Lease") dated for reference purposes
as of May 10, 1999, between Orchard Jay Investors, LLC, a California limited
liability company ("Landlord") and Cylink Corporation, a California corporation
("Tenant/Assignor") relating to premises including those commonly known as 3101
Jay Street, Santa Clara, California, in the County of Santa Clara.
Tenant/Assignor is the Sublandlord under the following Subleases (referred to
herein as the "Transferred Subleases"):
Sublease between ICG Communications, Inc., and Cylink Corporation
dated May 21, 2001 as to 10,855 square feet of space comprising a
portion of the first floor of 3101 Jay Street, commonly known as Suite
101 (including all rights of Tenant under the Consent of Landlord to
such Sublease dated as of September 11, 2001, as subsequently approved
by the Bankruptcy Court).
Sublease between Cylink Corporation and Intel Corporation dated
January 12, 2001 as to 10,855 square feet of space comprising a
portion of the first floor of 3101 Jay Street, commonly known as Suite
110 (including all rights of Tenant under the Consent of Landlord to
such Sublease dated as of February 16, 2001).
The two premises identified above are referred to herein as the
"Subleased Premises".
Tenant/Assignor agrees to and does assign the Transferred Subleases on
the terms and conditions set forth below to Orchard Jay Investors, LLC
("Assignee") and Assignee agrees to accept such assignment and assume
Tenant/Assignor's duties as Sublandlord going forward, and Landlord consents to
the proposed assignment on the following terms and conditions:
1. Assignment and Acceptance: Effective on February 1, 2003,
Tenant/Assignor assigns all of its right, title, and interest in and to the
Transferred Subleases to Assignee. Assignee hereby confirms its acceptance of
the assignment of the Lease and the Tenant/Assignor's leasehold interest in the
Subleased Premises and assumption of the obligations thereof.
2. No Waiver Of Assignment And Sublease Approval Rights: Landlord's
consent hereto does not constitute consent to any subsequent subletting or
assignment, nor a waiver of the restriction on assignment and subletting
contained in the Lease.
3. No Effect On Lease: In no event shall Landlord's consent to this
Assignment be, or be construed as, a modification of the terms of the Lease, and
in the event of any inconsistency between the terms of the approved Assignment
and the terms of the Lease, the terms of the Lease shall prevail.
4. Assignment of Security Deposit: Tenant confirms and agrees that
Tenant has not received any Security Deposit from Intel Corporation on its
Sublease, and Tenant has received as Security Deposit from ICG only that certain
irrevocable letter of credit dated February 7, 2002 and drawn on Wells Fargo
Bank in favor of Landlord. Landlord is hereby relieved of any obligations to
Tenant relating to the said letter of credit, including but not limited to the
obligations set forth in the Consent of Landlord, Paragraph 11, and Landlord is
entitled to all
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EXHIBIT B
PAGE ONE OF TWO
Consent of Landlord Page 2 of 2
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right, title, and interest in said letter of credit in its own name and for
protection of its interests as the Assignee of the Sublease with ICG.
5. Brokerage Commissions: There are no commissions payable on this
transaction, and neither party has been assisted by or contracted with a broker
in regard hereto.
6. No Merger: Landlord and Tenant do not intend, by this Assignment or
any concurrent transaction between them, to effect any merger of interests.
Assignee's continuing rights as Sublandlord by assignment from Tenant shall not
be interfered with or affected by any relief of Tenant of all or any part of its
obligations under the Lease.
Landlord consents to the foregoing Tenant and Assignee agree to the
transaction: foregoing transaction
Orchard Jay Investors, LLC, a California Cylink Corporation, a California
limited liability company corporation
By:____________________________ By:_____________________________
Michael J. Biggar Chris Chillingworth
Managing Member Chief Financial Officer
Dated: October 30, 2002 Dated: October 30, 2002
ASSIGNEE
Orchard Jay Investors, LLC, a
California limited liability
company
By:_____________________________
Michael J. Biggar
Managing Member
Dated:
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EXHIBIT B
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