AGREEMENT CONCERNING ASSIGNMENT OF LEASES
THIS AGREEMENT ("Agreement") is made for reference purposes only as of
June 5, 1996, between PINNACLE SYSTEMS, INC., a California corporation
("Assignee"), and NETWORK COMPUTING DEVICES, INC., a California corporation
("Assignor").
BACKGROUND
A. Assignor, Assignee and D.R. Stephens & Company, a California limited
partnership ("Lessor"), have entered into that certain Agreement to Assign and
Modify Leases of even date herewith (the "Assignment") providing for the
assignment to Assignee and modification of that (i) Standard
Industrial/Commercial Single-Tenant Lease-Net (the "280A Lease") between Lessor
and Assignor dated August 18, 1992 for approximately 53,300 square feet of
premises located at 280(A) North Bernardo Avenue, Mountain View, California (the
"280A Premises"), and (ii) Standard Industrial/Commercial Single-Tenant
Lease-Net (the "280B Lease") between Lessor and Assignor dated August 18, 1992
for approximately 53,160 square feet of premises located at 280(B) North
Bernardo Avenue, Mountain View, California (the "280B Premises"), each dated as
of August 18, 1992. The 280A and 280B Leases are collectively referred to herein
as the "Leases"; the 280A and 280B Premises are collectively referred to herein
as the "Premises".
B. Assignor and Assignee desire to enter into this Agreement to define
their mutual rights and obligations with respect to the Assignment; in this
regard, this Agreement is intended to supplement and expand upon the terms and
conditions of the Assignment.
NOW, THEREFORE, in consideration of the premises and mutual covenants
set forth in this Agreement, the parties hereto agree as follows:
1. Assignor's Representations. On the Effective Date (as defined
below), and again as of the closing date of the Assignment (as defined in
Paragraph 3 of the Assignment, and hereafter referred to as the "Closing Date"),
Assignor represents to Assignee that to the best of its current actual
knowledge: (i) that the Leases are in full force and effect, and there exists
under the Leases no "Breach" or "Default" by either Lessor or Assignor, nor has
there occurred any event which, with the giving of notice or passage of time or
both, could constitute such a Default or Breach; (ii) that the Premises,
including all buildings located thereon (a) conform to all requirements of
covenants, conditions, restrictions and encumbrances ("CC&R's"), all
underwriter's requirements, and all rules, regulations, statutes, ordinances,
laws and building codes, (collectively, "Laws") then in effect, and (b) are in
good operating condition and repair and the electrical, mechanical, HVAC,
plumbing, elevator and other systems serving the Premises are in good operating
condition and repair; (iii) that there are no pending or threatened actions,
suits or proceedings before any court or administrative agency against Lessor or
against Assignor or third parties which could, in the aggregate, adversely
affect the Premises or any part thereof or the ability of Assignee to perform
its obligations under the Leases or of Lessor to perform its obligations under
the Leases; (iv) that there is no pending or threatened condemnation or similar
proceeding affecting the Premises or any portion thereof; (v) that Assignor has
not received any notice from any insurance company of any defects or
inadequacies in
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the Premises or any part thereof which could adversely affect the insurability
of the Premises or the premiums for the insurance thereof; (vi) that, (a) no
Hazardous Material is present on or about the Premises, or, except as otherwise
set forth in that certain Phase 1 Environmental Site Assessment dated July 29,
1996, prepared by Secor International Incorporated for Assignor with respect to
the premises located at 303 Ravendale Drive, Mountain View, California, adjacent
to the Premises, or the soil, surface water or groundwater thereof, (b) no
underground storage tanks or asbestos-containing building materials are present
on the Premises, and (c) no action, proceeding, or claim is pending or
threatened regarding the Premises concerning any hazardous material or pursuant
to any environmental law. As used in this Agreement, "Hazardous Material" shall
mean any material which is now or hereafter regulated by any governmental
authority or which poses a hazard to the environment or human life.
2. Early Entry of Premises. Save for the portion of the Premises
("Subleased Premises") identified in that certain sublease between Assignor and
Assignee attached to the Agreement (the "Sublease"), on or before June 1, 1996,
Assignor shall vacate and leave the Premises in good operating condition and
repair, clean and free of debris and any personal property of Assignor, and
provide Assignee, its agents, employees, contractors and consultants, with
unrestricted, rent and operating expense free, access to the Premises, for the
purpose of installing the tenant improvements described in Exhibit 1 to the
Assignment. Except to the extent caused by any act, omission, negligence or
wilful misconduct of Assignor or its employees or agents, Assignee shall
protect, indemnify, defend, and hold harmless Assignor from and against any and
all claims, demands, causes of action and liabilities arising out of or relating
to Assignee's (or its employees', agents', contractors' or consultants') early
entry upon the Premises pursuant to this Paragraph 2.
3. Access to the Premises. In addition to the early entry rights set
forth in Paragraph 2, Assignor shall allow Assignee, its agents, employees,
contractors and consultants, reasonable access to the Premises to engage in such
examinations and inspections of the Premises as Assignor may reasonably desire
in connection with the Assignment. Except to the extent caused by any act,
omission, negligence or wilful misconduct of Assignor or its employees or
agents, Assignee shall protect, indemnify, defend, and hold harmless Assignor
from and against any and all claims, demands, causes of action and liabilities
arising out of or relating to Assignee's (or its employees', agents',
contractors' or consultants') examinations or inspections of the Premises prior
to the Closing Date.
4. Proration of Utility and Other Charges. All utility charges, real
estate taxes and any other periodic charges due under the Leases shall be
prorated by Assignor and Assignee as of the Closing Date. If the prorations
cannot be accurately calculated on the Closing Date, then they shall be
calculated as soon thereafter as is feasible, and any sums owed shall bear
interest at the rate of ten percent (10%) per annum or the highest amount
allowed by law, whichever is less, if payment is not made by the responsible
party within ten (10) days after its receipt of a bill for any amounts owed.
5. Indemnity.
A. Assignor's Indemnity. In amplification and not in
restriction of Assignor's other indemnity obligations to Assignee (including,
without limitation, Assignor's indemnity
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obligations under the Sublease), Assignor shall indemnify, defend (with counsel
reasonably acceptable to Assignee), protect and hold harmless Assignee and its
officers, employees, shareholders, agents and assigns from and against all
claims, demands, losses, costs (including attorney's fees and costs) or
liabilities (i) under the Leases (including, without limitation, all liability
due to the presence of Hazardous Materials on or about the Premises in any way
caused by Assignor, its employees, agents or contractors), or as a consequence
of Assignor's breach or default of the obligations on its part to be performed
under the Leases, accruing on or before the Closing Date, (ii) arising from
Assignor's use or occupancy of the Premises on or before the Closing Date, and
(iii) arising from the breach of any of Assignor's covenants or representations
to Assignee under this Agreement or the Assignment, regardless of whether
Assignee has waived any of the conditions set forth in Paragraph 2(b) or 2(e) of
the Assignment. The foregoing provisions shall survive the expiration or
termination of the Leases, this Agreement or the Assignment.
B. Assignee's Indemnity. Assignee shall indemnify, defend (with counsel
reasonably acceptable to Assignee), protect and hold harmless Assignor and its
officers, employees, shareholders, agents and assigns from and against all
claims, demands, causes of action, costs (including attorney's fees and costs)
or liabilities (i) under the Leases (including, without limitation, all
liability due to the presence of Hazardous Materials on or about the Premises
caused by Assignee or any of its agents or employees) accruing at any time after
the Closing Date, except as otherwise provided in the Sublease, or (ii) arising
from the breach of any of Assignee's covenants or representations to Assignor
under this Agreement or the Assignment. The foregoing provisions shall survive
the expiration or termination of the Leases, this Agreement or the Assignment.
6. Effective Date. This Agreement shall not be effective unless and
until both Assignor and Assignee have executed this Agreement and each has
received a fully executed original copy thereof. The date by which the foregoing
shall have occurred is referred to herein as the "Effective Date".
7. Miscellaneous. Should any provisions of this Agreement prove to be
invalid or illegal, such invalidity or illegality shall in no way affect, impair
or invalidate any other provision hereof, and such remaining provisions shall
remain in full force and effect. Time is of the essence with respect to the
performance of every provision of this Agreement in which time of performance is
a factor. The captions used in this Agreement are for convenience only and shall
not be considered in the construction or interpretation of any provision hereof.
This Agreement may be executed in counterparts, each of which shall constitute
an original and all of which together shall constitute one instrument. This
Agreement shall apply to and bind the respective heirs, successors, executors,
administrators and assigns of Assignor and Assignee. This Agreement shall be
construed and enforced in accordance with the laws of the State of California.
The language in all parts of this Agreement shall in all cases be construed as a
whole according to its fair meaning, and not strictly for or against either
Assignor or Assignee. When a party is required to do something by this
Agreement, it shall do so at its sole cost and expense without right of
reimbursement from the other party unless specific provision is made therefor.
Assignor shall not become or be deemed a partner nor a joint venturer with
Assignee by reason of the provisions of this Agreement. No subsequent change or
addition to this Agreement shall be binding unless in writing and signed by the
parties hereto.
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8. Interpretation. The parties hereto intend that the provisions of the
Assignment and this Agreement will not conflict, and that this Agreement and the
Assignment shall be construed harmoniously so as to give effect to all of the
terms, covenants and conditions of both documents. If there is any conflict
between the terms and conditions of this Agreement and the Assignment, then as
between Assignor and Assignee, the terms and conditions of this Agreement shall
control.
IN WITNESS WHEREOF, this Agreement is executed as of the date first
above written.
ASSIGNOR: ASSIGNEE:
NETWORK COMPUTING DEVICES, INC., PINNACLE SYSTEMS, INC.,
a California corporation a California corporation
By: /s/ Jack Bradley By: /s/ Arthur Chadwick
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Printed Printed
Name: Jack Bradley Name: Arthur Chadwick
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Its: CFO Its: CFO
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