Exhibit 10.15
SUBLEASE CONSENT AND AGREEMENT
This Sublease Consent and Agreement ("Agreement") dated as of August 28,
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2001 (for reference purposes only), is made by and among, CARRAMERICA REALTY
CORPORATION, a Maryland corporation ("Landlord"), PERICOM SEMICONDUCTOR
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CORPORATION, a California corporation ("Tenant"), and YESVIDEO.COM, INC., a
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Delaware corporation ("Subtenant").
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RECITALS:
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A. Pursuant to that certain Lease and First Addendum thereto dated November
29, 1993 between Orchard Investment Company Number 510, a California general
partnership, Landlord's predecessor in interest as Landlord, and Tenant, as
amended by that certain Acceptance Agreement dated January 28, 1994, that
certain First Amendment to Lease dated February 5, 1996, that certain Second
Amendment to Lease dated July 31, 1997, that certain Third Amendment to Lease
dated April 23, 1999, that certain Fourth Amendment to Lease dated January 21,
2000, that certain Fifth Amendment to Lease dated May 1, 2000, and that certain
Sixth Amendment to Lease dated October 31, 2000 (collectively, the "Master
Lease"), Tenant leases from Landlord certain premises (the "Premises")
consisting of approximately 66,264 square feet in the buildings commonly
referred to as "Valley Business Park II", all as more particularly described in
the Master Lease.
B. Tenant desires to sublease that portion of the Premises referred to in
the Master Lease as the "Fifth Expansion Space" (the "Subleased Premises") to
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Subtenant in accordance with that certain sublease (the "Sublease") dated August
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23, 2001, between Tenant and Subtenant, a copy of which is attached hereto as
Exhibit A.
C. Landlord is willing to consent to the Sublease upon the terms and
conditions of this Agreement.
AGREEMENT:
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NOW, THEREFORE, in consideration of the foregoing and the covenants,
promises and undertakings set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
1. Landlord's Consent. Landlord hereby consents to the Sublease in the form
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attached hereto as Exhibit A. The Sublease shall not be amended or modified
without the prior written consent of Landlord. This consent is granted only upon
the terms and conditions of this Agreement, and Tenant and Subtenant hereby
agree to each of such terms and conditions.
2. Master Lease.
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2.1 The Sublease shall be subject and subordinate at all times to the
Master Lease and to all of its provisions, covenants and conditions. Landlord
shall not be bound or estopped in any way by any of the terms, covenants, or
conditions of the Sublease, nor shall any provision of the Sublease or this
Agreement operate as an express or implied consent to or approval or
ratification by Landlord of any specific provisions of the Sublease or as an
endorsement, representation or warranty of any kind by Landlord regarding the
Premises, Tenant, the Master Lease or any other matter, all of which are
expressly disclaimed. In case of any conflict between the provisions of the
Master Lease and the provisions of the Sublease, as
between Landlord and Tenant, the provisions of the Master Lease shall
prevail unaffected by the Sublease. Tenant and Subtenant agree that the Sublease
is hereby amended to conform to the terms and conditions of this Agreement.
Without limiting the generality of the foregoing, the Sublease is hereby amended
as follows:
(a) Section 6.1 of the Sublease is hereby deleted in its entirety
and replaced with the following:
"6.1 Use. The Premises shall be used and occupied only
for office, administration, research and development, system
assembly, light manufacturing, storage, and distribution and
for no other purpose."
(b) Sections 8.1, 8.2, and 9.5 of the Sublease are hereby deleted
in their entirety.
(c) Section 9.6 of the Sublease is hereby deleted in its entirety
and replaced with the following:
"9.6 Sublessee shall have the right to cure any default
of Sublessor described in any notice of default within ten
(10) days after service of such notice of default on
Sublessee. If such default is cured by Sublessee then
Sublessee shall have the right of reimbursement and offset
from and against Sublessor."
2.2 Nothing contained in the Sublease shall alter, amend, expand or
reduce any of the obligations of Landlord or Tenant under the Master Lease, nor
impose on Landlord any obligation to provide notice to, or obtain consent from,
Subtenant with respect to amendments, defaults, waivers or any other matters
pertaining to the Master Lease or the Premises. Except to the extent the
Sublease becomes a direct lease between Landlord and Subtenant pursuant to
Section 4.1 below, all communications with Landlord regarding the Master Lease,
the Premises, the Sublease or Subtenant shall be recognized by Landlord only if
made by Tenant, not Subtenant, including without limitation, requests for
approvals as required under the Master Lease and requests for any service to be
supplied by Landlord to the Subleased Premises. Tenant consents that Landlord
may elect to communicate directly with Subtenant regarding Subtenant's occupancy
of the Subleased Premises or the Sublease without any implied waiver of this
provision. Tenant shall indemnify, protect, defend and hold Landlord harmless
from any liability of, or claim against Landlord by Subtenant which arises from
Tenant's failure to timely provide notice to Landlord of requests made by
Subtenant to Tenant, as the sublandlord under the Sublease.
3. Relationship with Landlord.
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3.1 Except as otherwise provided by law, nothing contained in this
Agreement or the Sublease shall be deemed to create privity of contract between
Landlord and Subtenant, to make Subtenant a third party beneficiary of the
provisions of the Master Lease, or to create or permit any direct right of
action by Subtenant against Landlord for breach of the covenant of quiet
enjoyment or any other covenant of Landlord under the Master Lease. Landlord
shall have no obligations nor incur any liability to Subtenant with respect to
any warranties of any nature, whether pursuant to the Master Lease or the
Sublease, or otherwise, including, without
limitation, any warranties respecting use, compliance with zoning,
construction, or fitness of the Subleased Premises for Subtenant's purposes.
3.2 Tenant hereby irrevocably authorizes and directs Subtenant, upon
receipt of any written notice from Landlord stating that a default exists in the
performance of Tenant's obligations under the Master Lease, to pay to Landlord
the rents and other amounts due and to become due under the Sublease as such
rents and other amounts shall become due and payable under the Sublease. Tenant
agrees that Subtenant shall have the right to rely upon any such statement and
request from Landlord, and that Subtenant shall pay such rents and other amounts
to Landlord without any obligation or right to inquire as to whether such
default exists and notwithstanding any notice from or claim from Tenant to the
contrary, and Tenant shall have no right or claim hereunder against Subtenant
for any such rents or other amounts so paid by Subtenant. Such payments to
Landlord shall satisfy and discharge Subtenant's obligation for the payment of
rent and other amounts under the Sublease to the full extent of such payments
made to Landlord.
4. Termination of Master Lease.
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4.1 Any termination of the Master Lease for any reason shall
constitute, without further act or deed, a termination of the Sublease, provided
that Landlord shall have the option, at its sole election, to:
(a) elect by written notice to continue the Sublease solely with
respect to the Subleased Premises without any additional or further agreement of
any kind on the part of Subtenant and with the same force and effect as if
Landlord, as landlord, and Subtenant, as tenant, had entered into a lease as of
the effective date of such expiration, termination or surrender of the Master
Lease for a term equal to the then unexpired term of the Sublease, and
containing the same terms and conditions as those contained in the Sublease
(except as specifically provided in this Agreement), in which event Landlord
shall assume Tenant's obligations as sublandlord thereunder and Subtenant shall
attorn to Landlord as landlord on such terms and conditions.
(b) enter into a lease directly with Subtenant for the balance of
the term remaining under the Sublease, for the same consideration and upon the
same terms and conditions as in the Sublease. If Landlord exercises such option,
Landlord and Subtenant shall enter into a new lease directly between Landlord
and Subtenant upon such terms and conditions.
4.2 If Landlord elects to proceed under either Sections 4.1(a) or
4.1(b) above, in no event shall Landlord be:
(a) bound by or liable for any rent paid by Subtenant to Tenant;
or any security deposit paid by Subtenant to Tenant that is not transferred to
Landlord;
(b) liable for any act or omission of Tenant or for any default
of Tenant under the Sublease which occurred prior to Landlord's assumption;
(c) subject to any defenses or offsets that Subtenant may have
against Tenant which arose prior to Landlord's assumption; or
(d) bound by any changes or modifications made to the Sublease
without the written consent of Landlord.
5. Non-Release of Tenant. Nothing contained in this Agreement or the
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Sublease shall be deemed to alter the primary liability of Tenant to pay the
Rent and perform all of Tenant's obligations under the Master Lease (including,
without limitation, the payment of all bills rendered by Landlord for charges
incurred by Subtenant for services and materials supplied to the Subleased
Premises), nor release Tenant from its obligations under the Master Lease, nor
waive any rights that Landlord may now have or later acquire against Tenant
under the Master Lease. The acceptance of any sums by Landlord from Subtenant or
any third party shall not be deemed a waiver by Landlord of Tenant's obligation
to pay Rent or any other amounts as provided in the Master Lease. The
performance of any obligation required of Tenant under the Master Lease by
Subtenant or any third party shall not be deemed a waiver by Landlord of
Tenant's duty to perform such obligation. Any act or omission by Subtenant or
any of its agents, employees or invitees in, on, or about the Premises or the
Building, or any act by Subtenant or any of its agents, employees or invitees
pursuant to the terms and conditions of the Sublease, shall constitute the act
or omission of Tenant. Any sums that may be payable under the Master Lease by
virtue of any act or omission of Subtenant shall be the obligation of Tenant to
pay and discharge in accordance with the terms of the Master Lease.
6. Further Transfers. The consent of Landlord is limited solely to the
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Sublease. Any assignment of the Master Lease or the Sublease or further
subletting of any part of the Premises shall be subject to Landlord's consent as
provided in the Master Lease. Landlord may consent in its absolute and sole
discretion to subsequent subleases and assignments of the Sublease or any
amendments or modifications to the Sublease without notifying Tenant or anyone
else liable under the Master Lease, and without obtaining their consent. No such
action by Landlord will relieve those persons from any liability to Landlord or
otherwise with regard to the Subleased Premises, and Tenant and Subtenant, waive
any provision of California law to the contrary, including without limitation
Sections 2787 to 2855, inclusive, of the California Civil Code. In addition, no
provision of the Sublease or this Agreement shall limit Landlord's right, in the
event of a proposed future assignment or subletting of any portion of the
Premises, including the Subleased Premises, to recapture such portion of the
Premises, including the Subleased Premises, affected by that proposed assignment
or subletting, as provided in Section 14.1(c) of the Master Lease, or to receive
any payment required under Section 14.1(d) of the Master Lease, and, without
limiting the generality of any of any other provision of this Agreement relating
to the Sublease, no provision of the Sublease pertaining to sharing of excess
rentals or profits on further subletting shall in any way diminish or affect
Landlord's rights under Article 14of the Master Lease.
7. Conditions to Landlord's Consent. Landlord's consent to the Sublease
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is expressly conditioned on the following:
7.1 Prior to the Subtenant's taking occupancy of the Subleased
Premises, Tenant shall deliver to Landlord certificates of insurance evidencing
Subtenant's compliance with Section 9.1 of the Master Lease and indicating that
Landlord is named as an additional insured on such policies.
7.2 Tenant shall reimburse Landlord for (a) the reasonable expenses
incurred by Landlord in connection with Tenant's request for such consent,
including attorneys' fees and disbursements, the costs of investigating the
acceptability of Subtenant, and any leasing or brokerage commissions, and (b)
all reasonable direct and indirect expenses incurred by
Landlord due to Subtenant taking possession of the Premises, including, but
not limited to, costs relating to freight elevator operation, security service,
janitorial service and rubbish removal (collectively, "Transfer-Related Costs").
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Tenant shall reimburse Landlord for the Transfer-Related Costs incurred by
Landlord within ten (10) days following Tenant's receipt of an invoice.
7.3 Tenant shall pay to Landlord as and when required under the Master
Lease, the amounts set forth in Section 14.1(D) of the Master Lease regarding
Subrent, and upon request by Landlord, Tenant shall provide Landlord with
reasonable documentation of Tenant's payment of the Permitted Transfer Costs and
Tenant's calculations of the Subrent.
7.4 Neither Landlord nor the other Indemnitees (as defined below)
shall be liable to Subtenant or to any of Subtenant's Agents (as defined in
Section 1.4 of the Master Lease), and Subtenant waives all claims against
Landlord and such other Indemnitees, for any injury to or death of any person or
for loss of use of or damage to or destruction of property in or about the
Premises or Project by or from any cause whatsoever, including without
limitation, earthquake or earth movement, gas, fire, oil, electricity or leakage
from the roof, walls, basement or other portion of the Premises or Project,
except only, with respect to any Indemnitee, to the extent such injury, death or
damage is caused by the gross negligence or willful misconduct of such
Indemnitee and not covered by the insurance required to be carried by Subtenant
under the Sublease and hereunder or except to the extent such limitation on
liability is prohibited by law. The provisions of this Section 7.4 shall survive
the expiration or earlier termination of the Sublease until all claims within
the scope of this Section 7.4 are fully, finally, and absolutely barred by the
applicable statutes of limitations.
7.5 Subtenant shall hold harmless, indemnify and defend Landlord, and
its employees, agents and contractors (the "Indemnitees"), on the terms and
conditions contained in Section 10.3 of the Master Lease, as if the term
"Subtenant" were substituted for "Tenant" therein.
8. Representations of Tenant and Subtenant.
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8.1 Tenant and Subtenant represent and warrant to Landlord that a true
copy of the Sublease, and all agreements relating to Subtenant's use and
occupancy of the Subleased Premises, and all exhibits, addendum, amendments,
modifications and supplements thereto, is attached hereto as Exhibit A.
8.2 Tenant and Subtenant represent and warrant to Landlord that,
except as set forth in the Sublease attached hereto as Exhibit A, Subtenant is
not paying to Tenant any rent, additional rent or other consideration whatsoever
in connection with the Sublease and/or Subtenant's use and/or occupancy of the
Subleased Premises or any portion thereof (including, but not limited to,
payments for Tenant's assets, trade fixtures, equipment and/or other personal
property, goodwill, intangible property and/or any capital stock or other equity
ownership of Tenant).
8.3 Tenant and Subtenant represent and warrant to Landlord that Tenant
has provided Subtenant with a complete copy of the Master Lease, and Subtenant
further represents and warrants to Landlord that Subtenant is familiar with the
provisions thereof.
8.4 Tenant and Subtenant represent and warrant that Landlord will not
be liable for any brokerage commission or finder's fee in connection with the
consummation of the Sublease or this Agreement. Tenant and Subtenant, jointly
and severally, shall protect,
indemnify, defend and hold Landlord harmless from and against any claims for
any such commissions, fees or costs, and for all costs, expenses and liabilities
incurred in connection with such claims, including, without limitation,
attorneys' fees and costs.
9. Miscellaneous.
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9.1 Should any party to this Agreement bring an action against another
party, by reason of or alleging the failure of the other party to comply with
any or all of its obligations hereunder, whether for declaratory or other
relief, then the party which prevails in such action shall be entitled to its
reasonable attorneys' fees and expenses related to such action, in addition to
all other recovery or relief. A party shall be deemed to have prevailed in any
such action (without limiting the generality of the foregoing) if such action is
dismissed upon the payment by the other party of the sums allegedly due or the
performance of obligations allegedly not complied with, or if such party obtains
substantially the relief sought by it in the action, irrespective of whether
such action is prosecuted to judgment. Attorneys' fees shall include, without
limitation, fees incurred in discovery, contempt proceedings, and bankruptcy
litigation. The non-prevailing party shall also pay the attorneys' fees and
costs incurred by the prevailing party in any post-judgment proceedings to
collect and enforce the judgment. The covenant in the preceding sentence is
separate and several and shall survive the merger of this provision into any
judgment on this Agreement.
9.2 Promptly upon Landlord's request, Tenant and Subtenant shall
execute and deliver such further customary documents and/or instruments and
perform such further customary acts as may be required to give full effect to
the transaction herein contemplated.
9.3 Capitalized terms used but not defined herein shall have the
respective meanings ascribed to them in the Master Lease. Captions to the
paragraphs and sections in this Agreement are included for convenience only and
do not modify any of the terms of this Agreement. No one party shall be deemed
to have drafted this Agreement and it shall be construed according to its fair
meaning and not against any party. All indemnity obligations under this
Agreement and any other provision hereof the survival of which is necessary to
its enforcement shall survive the expiration or earlier termination of the
Sublease and this Agreement.
9.4 LANDLORD, TENANT AND SUBTENANT EACH ACKNOWLEDGES THAT IT HAS HAD
THE ADVICE OF COUNSEL OF ITS CHOICE WITH RESPECT TO ITS RIGHTS TO TRIAL BY JURY
UNDER THE CONSTITUTIONS OF THE UNITED STATES AND THE STATE OF CALIFORNIA. EACH
PARTY EXPRESSLY AND KNOWINGLY WAIVES AND RELEASES ALL SUCH RIGHTS TO TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER PARTY AGAINST
THE OTHER ON ANY MATTERS ARISING OUT OF OR IN ANY WAY RELATED TO, EITHER
DIRECTLY OR INDIRECTLY, THIS AGREEMENT, OR THE SUBJECT MATTER HEREOF,
SUBTENANT'S USE OR OCCUPANCY OF THE SUBLEASED PREMISES, AND/OR ANY CLAIM FOR
INJURY OR DAMAGE.
Landlord's Initials ______ Tenant's Initials _______ Subtenant's Initials ______
9.5 Landlord's consent hereunder shall not be effective until this
Agreement has been executed by Landlord, Tenant and Subtenant and delivered by
Landlord and Tenant.
9.6 If any provision of this Agreement shall be invalid, unenforceable or
ineffective for any reason whatsoever, all other provisions hereof shall be and
remain in effect.
9.7 This Agreement is the entire agreement between the parties with
respect to the subject matter hereof, and no alteration, modification or
interpretation hereof shall be binding unless in writing and signed by all
parties. This Agreement shall be construed and enforced in accordance with the
laws of the State of California. This Agreement may be executed and delivered in
any number of counterparts, each of which so executed and delivered shall be
deemed to be an original and all of which shall constitute one and the same
instrument.
[signatures on next page]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by duly authorized representatives on the date set forth under their
respective signatures below.
LANDLORD: TENANT:
CARRAMERICA REALTY CORPORATION, PERICOM SEMICONDUCTOR CORPORATION,
a Maryland corporation a California corporation
By: ________________________________
By: _____________________________ Name: ______________________________
Leah Segawa
Managing Director Title: _____________________________
Date: ___________________________ Date:_______________________________
By: ________________________________
Name: ______________________________
Title: _____________________________
Date: ______________________________
SUBTENANT:
YESVIDEO.COM,INC.,
a Delaware corporation
By: _____________________________
Name: ___________________________
Title:___________________________
Date: ___________________________
By: _____________________________
Name: ___________________________
Title: __________________________
Date: ___________________________
Exhibit A
Sublease
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[See Attached]
[LOGO] EXHIBIT A
STANDARD TRIPLE NET SUBLEASE
1. Parties. This Sublease, dated, for reference purposes only, August23, 2001
is made by and between Pericom Semiconductor Corporation, a California
corporation (herein called "Sublessor") and YesVideo, a Delawarecorporation
(herein called "Sublessee").
2. Premises. Sublessor hereby subleases to Sublessee and Sublessee hereby
subleases from Sublessor for the term, at the rental, and upon all of the
conditions set forth herein, that certain real property situated in the County
of Santa Clara, State of California, commonly known as 2249 Zanker Road, San
Jose, California and described as approximately Twelve Thousand Eight Hundred
Eighty Eight (12,888) Square Feet(the "Premises"), part of a larger building
(the "Building").
3. Term.
3.1 Term. The term (the "Term") of this Sublease shall be for eighteen (18)
months commencing on the date (the "Commencement Date") that is the later of
October 1, 2001 or the date by which all of the following have occurred (a)
Sublessor has delivered possession of the Premises to Sublessee; (b) Master
Lessor's written consent is obtained in accordance with the Master Lease, and
ending on March 31, 2003, unless sooner terminated pursuant to any provision
hereof.
3.2 Delay in Commencement. If the Commencement Date has not occurred due to
Sublessor's inability to obtain consent of the Master Lessor before commencement
of October 1, 2001 or for any reason whatsoever on or before October 15, 2001,
then, in addition to Sublessee's other rights and remedies, Sublessee may
terminate the Sublease by written notice to Sublessor, whereupon any monies
previously paid by Sublessee to Sublessor shall be reimbursed to Sublessee, or,
at Sublessee's election, the date Sublessee is otherwise obliged to commence
payment of rent shall be delayed by one (1) day for each day that the
Commencement Date is delayed beyond such date.
4. Rent. Sublessee shall pay to Sublessor as rent for the Premises equal
monthly payments of $21,265.20, in advance, on the first day of each month of
the term hereof. Sublessee shall pay Sublessor upon the execution hereof
$21,265.20 as rent for the first month. Rent for any period during the term
hereof which is for less than one (1) month shall be a pro-rata portion of the
monthly installment. Rent shall be payable in lawful money of the United States
to Sublessor at the address stated herein or to such other persons or at such
other places as Sublessor may designate in writing. Sublessee shall also be
obligated to pay any additional rents applicable to the Premises and Term
pursuant to the Master Lease as incorporated herein. Sublessor agrees to bill
Sublessee for any and all applicable additional rent (and such bill shall
include information provided by Master Lessor) and Sublessee shall pay all
additional rents to Sublessor within ten (10) days of its receipt of any
invoice.
5. Security Deposit. Sublessee shall deposit with Sublessor upon execution
hereof $63,795.60 as security for Sublessee's faithful performance of
Sublessee's obligations hereunder. If Sublessee fails to pay rent or other
charges due hereunder, or otherwise defaults with respect to any provision of
this Sublease, Sublessor may use, apply or retain all or any portion of said
deposit for the payment of any rent or other charge in default or for the
payment of any other sum to which Sublessor may become obligated by reason of
Sublessee's default, or to compensate Sublessor for any loss or damage which
Sublessor may suffer thereby. If Sublessor so uses or applies all or any portion
of said deposit, Sublessee shall within ten (10) days after written demand
therefore deposit cash with Sublessor in an amount sufficient to restore said
deposit to the full amount hereinabove stated and Sublessee's failure to do so
shall be a material breach of this Sublease. Sublessor shall not be required to
keep said deposit separate from its general accounts. If Sublessee performs all
of Sublessee's obligations hereunder, said deposit, or so much thereof as has
not theretofore been applied by Sublessor, shall be returned, without payment of
interest or other increment for its use to Sublessee (or at Sublessor's option,
to the last assignee, if any, of Sublessee's interest
STANDARD SUBLEASE Page 2 of 6
hereunder) within fifteen (15) days following the expiration date, and after
Sublessee has vacated the Premises. No trust relationship is created herein
between Sublessor and Sublessee with respect to said Security Deposit.
6. Use.
6.1 Use. The Premises shall be used and occupied only for office,
administration, research and development, system assembly, light
manufacturing, storage, distribution and any other legal related use
and for no other purpose.
6.2 Compliance with Law.
(a) Sublessor warrants to Sublessee that the Premises, in its existing
state, as of the Commencement Date, does not violate any applicable building
code regulation or ordinance. In the event that it is determined that this
warranty has been violated, then it shall be the obligation of the Sublessor,
after written notice from Sublessee, to promptly, at Sublessor's sole cost and
expense, rectify any such violation. Except as provided in paragraph 6.2(a),
Sublessee shall, at Sublessee's expense, comply promptly with all applicable
statues, ordinances, rules, regulations, orders, restrictions of record, and
requirements in effect during the term or any part of the term hereof regulating
the use by Sublessee of the Premises. Sublessee shall not use or permit the use
of the Premises in any manner that will tend to create waste or a nuisance or,
if there shall be more than one tenant of the building containing the Premises,
which shall tend to disturb such other tenants.
6.3 Condition of Premises. Except as provided in paragraph 6.2(a) or
otherwise in this Sublease, Sublessee hereby accepts the Premises in their
condition existing as of the date of the execution hereof, subject to all
applicable zoning, municipal, county and state laws, ordinances, and regulations
governing and regulating the use of the Premises, and accepts this Sublease
subject thereto and to all matters disclosed thereby and by any exhibits
attached hereto. Sublessee acknowledges that neither Sublessor nor Sublessor's
agents have made any representation or warranty as to the suitability of the
Premises for the conduct of Sublessee's business.
7. Master Lease.
7.1 Sublessor is the lessee of the Premises by virtue of that Lease, the
"Lease", , by and between Orchard Investment Company Number 510
("Orchard"), predecessor in interest to Master Lessor (as defined
herein) and Sublessor, dated November 29, 1993, as amended by that
certain First Amendment to Lease dated February 5, 1996 between Orchard
and Sublessor, that certain Second Amendment to Leasedated July 31,
1997 by and between CarrAmerica Realty Corporation ("Master Lessor")
and Sublessor, that certain Third Amendment to Lease dated April 23,
1999 by and between Master Lessor and Sublessor, that certain Fourth
Amendment to Lease dated January 21, 2000 by and between Master Lessor
and Sublessor, that certain Fifth Amendment dated May 1, 2000 by and
between Master Lessor and Sublessor,and that Sixth Amendment dated
October 31, 2000 by and between Master Lessor and Sublessor (the Lease
and the First through Sixth Amendments are hereinafter collectively
referred to as the "Master Lease"). A copy of the Master Lease is
attached hereto as Exhibit A. Sublessor leases approximately sixty-six
thousand two hundred sixty-four (66,264) square feet of space (the
"Master Premises").
7.2 This Sublease is and shall be at all times subject and subordinate to
the Master Lease.
The terms, conditions and respective obligations of Sublessor and Sublessee
to each other under this Sublease shall be the terms and conditions of the
Master Lease except for those provisions of the Master Lease which are
directly contraindicated by this Sublease in which event the terms of this
Sublease document shall control over the Master Lease and except as
otherwise expressly provided in the Sublease including, without limitation
in Section 7.4. Therefore, for the purposes of this Sublease, wherever in
the Master Lease the word "Lessor" is used it shall be deemed to mean the
Sublessor herein and wherever in the Master Lease the word "Lessee" is used
it shall be deemed to mean the Sublessee herein, wherever in the Master
Lease the word "Premises" is used shall be deemed to mean the Premises
herein, wherever in the Master Lease the word "Term" is used it shall be
deemed to mean the Term hereof.
STANDARD SUBLEASE Page 3 of 6
During the term of this Sublease as applicable to the Premises , the Master
Lease is hereby incorporated into the Sublease and Sublessee does hereby
expressly assume and agree to perform and comply with, for the benefit of
Sublessor and Master Lessor, each and every obligation of Sublessor under
the Master Lease except that (a) the following paragraphs of the Master
Lease not incorporated herein: Summary of Lease (except O and N) , 1.3,1.6,
1.7, 1.8, 1.11, 1.17, 1.18, 1.21, 1.25, 1.27, 2.2, 2.3, 2.4, 3.1, 3.3, 3.5,
8.1-(reference to Section G only), 10.2 (except subsection (I)), 15.3, 15.8
(references to Sections Q and R only), 15.10, 15.13, 15.15, First Addendum,
First Amendment to Lease, Second Amendment to Lease, Third Amendment to
Lease (except Section 18), Fourth Amendment to Lease, Fifth Amendment to
Lease, Sixth Amendment to Lease (except Section 13) (b) references in the
following provisions to "Landlord" shall mean "Master Lessor" only: Sections
4.5, 4.6, 5.4, 6.2, 6.3, 7.1.D, 8.2, 8.3, 9.2, 11.1, 11.2, 11.3, (except the
second reference), 12.1, 12.2, 12.5, 15.4, 15.5, (c) reference to "Tenant's
Share" shall mean 7.72%; and (d) reference to "Tenant's Allocated Parking
Stalls" shall mean 50 stalls. In the event of a conflict between the
provision of this Sublease and the Master Lease, as between Sublessor and
Sublessee, the provisions of this Sublease shall control.
The obligations that Sublessee has assumed under paragraph 7.4 hereof are
hereinafter referred to as the "Sublessee's Assumed Obligations". The
obligations that Sublessee has not assumed under paragraph 7.4 hereof are
hereinafter referred to as the "Sublessor's Remaining Obligations".
Sublessee shall hold Sublessor free and harmless of and from all liability,
judgments, costs, damages, claims or demands, including reasonable attorneys
fees, arising out of Sublessee's failure to comply with or perform
Sublessee's Assumed Obligations.
Sublessor agrees to maintain the Master Lease during the entire term of this
Sublease, subject, however, to any earlier termination of the Master Lease
without the fault of the Sublessor, and to comply with or perform
Sublessor's Remaining Obligations and to hold Sublessee free and harmless of
and from all liability, judgments, costs, damages, claims or demands arising
out of Sublessor's failure to comply with or perform Sublessor's Remaining
Obligations.
7.8 Sublessor represents to Sublessee that (i) the Master Lease is in full
force and effect and that no default exists on the part of any party to the
Master Lease nor has there occurred any event which with the passage of time or
giving of notice or both would constitute a default under the Master Lease and
(ii) the form of the Master Lease attached as Exhibit "A" is true, correct and
complete and has not been modified in any respect.
8. Assignment of Sublease and Default.
8.1 Sublessor hereby assigns and transfers to Master Lessor the Sublessor's
interest in this Sublease and all rentals and income arising therefrom,
subject however to terms of Paragraph 8.2 hereof.
8.2 Master Lessor, by executing this document, agrees that until a default
shall occur in the performance of Sublessor's Obligations under the
Master Lease, that Sublessor may receive, collect and enjoy the rents
accruing under this Sublease. However, if Sublessor shall default in
the performance of its obligations to Master Lessor then Master Lessor
may, at its option, receive and collect, directly from Sublessee, all
rent owing and to be owed under this Sublease. Master Lessor shall not,
by reason of this assignment of the Sublease nor by reason of the
collection of the rents from the Sublessee, be deemed liable to
Sublessee for any failure of the Sublessor to perform and comply with
Sublessor's Remaining Obligations.
8.3 Sublessor hereby irrevocably authorizes and directs Sublessee, upon
receipt of any written notice from the Master Lessor stating that a
default exists in the performance of Sublessor's obligations under the
Master Lease, to pay to Master Lessor the rents due and to become due
under the Sublease. Sublessor agrees that Sublessee shall have the
right to rely upon any such statement and request from Master Lessor,
and that Sublessee shall pay such rents to
STANDARD SUBLEASE Page 4 of 6
Master Lessor without any obligation or right to inquire as to whether
such default exists and notwithstanding any notice from or claim from
Sublessor to the contrary and Sublessor shall have no right or claim
against Sublessee for any such rents to paid by Sublessee.
8.4 No changes or modifications shall be made to this Sublease without the
consent of Master Lessor.
9. Consent of Master Lessor.
9.1 In the event that the Master Lease requires that Sublessor obtain the
consent of Master Lessor to any subletting by Sublessor then, this
Sublease shall not be effective unless, Master Lessor consent to this
Subletting.
9.2 In the event that the obligations of the Sublessor under the Master
Lease have been guaranteed by third parties then this Sublease, nor the
Master Lessor's consent, shall not be effective unless, said guarantors
consent to this Sublease.
9.3 In the event that Master Lessor does give such consent then:
(a) Such consent will not release Sublessor or its obligations or alter the
primary liability of Sublessor to pay the rent and perform and comply with all
of the obligations of Sublessor to be performed under the Master Lease.
(b) The acceptance of rent by Master Lessor from Sublessee or any one else
liable under the Master Lease shall not be deemed a waiver by Master Lessor of
any provisions of the Master Lease.
(c) The consent of this Sublease shall not constitute a consent to any
subsequent subletting or assignment.
(d) In the event of any default of Sublessor under the Master Lease, Master
Lessor may proceed directly against Sublessor, any guarantors or any one else
liable under the Master Lease or this Sublease without first exhausting Master
Lessor's remedies against any other person or entity liable thereon to Master
Lessor.
(e) Master Lessor may consent to subsequent sublettings and assignments of
the Master Lease or this Sublease or any amendments or modifications thereto
without notifying Sublessor nor any one else liable under the Master Lease and
without obtaining their consent and such action shall not relieve such persons
from liability.
(f) In the event that Sublessor shall default in its obligations under the
Master Lease, then Master Lessor, at its option and without being
obligated to do so, may require Sublessee to attorn to Master Lessor in
which event Master Lessor shall undertake the obligations of Sublessor
under this Sublease from the time of the exercise of said option to but
Master Lessor shall not be liable for any prepaid rents nor any
security deposit paid by Sublessee unless actually received by
Sublessor, nor shall Master Lessor be liable for any other defaults of
the Sublessor under the Sublease unless continuing.
9.4 The signatures of the Master Lessor and any Guarantors of Sublessor at
the end of this document shall constitute their consent to the terms of
this Sublease.
9.5 Master Lessor acknowledges that, to the best of Master Lessor's
knowledge, no default presently exists under the Master Lease of obligations to
be performed by Sublessor nor has there occurred any event which with the
passage of time or giving of notice or both would constitute a default under the
Master Lease, and that the Master Lease is in full force and effect.
9.6 In the event that Sublessor defaults under its obligations to be
performed under the Master Lease by Sublessor, Master Lessor agrees to deliver
to Sublessee a copy of any such notice of default. Sublessee shall have the
right to cure any default of Sublessor described in any notice of default within
ten (10) days after service of such notice of default on Sublessee. If such
default is cured by Sublessee then Sublessee shall have the right of
reimbursement and offset from and against Sublessor.
STANDARD SUBLEASE Page 5 of 6
10. Brokers Fee.
10.1 Upon execution hereof by all parties, Sublessor shall pay to Colliers
International, Inc., a licensed real estate broker, (herein called
"Broker"), a fee as set forth in a separate agreement between
Sublessor and Broker.
10.2 Sublessor agrees that if Sublessee decides to either to extend the
term of this Sublease, to renew this Sublease, pertaining to the
Premises or any adjacent property which Sublessor may own or in which
Sublessor has an interest, then as to any of said transactions
Sublessor shall pay to Broker a fee, in accordance with the schedule
of Broker in effect at the time of the execution of this Sublease.
Notwithstanding the foregoing, Sublessor's obligation under this
Paragraph 10.2 is limited to a transaction to which Sublessor is
acting as a sublessor. Sublessee shall have no liability whatsoever
for payment of any Broker's fees.
10.3 Intentionally Deleted
10.4 Intentionally Deleted
10.5 Any transferee of Sublessor's interest in this Sublease, or of Master
Lessor's interest in the Master Lease, by accepting an assignment thereof, shall
be deemed to have assumed the respective obligations of Sublessor or Master
Lessor under this Paragraph 10.
11. Attorney's Fees. If any party brings an action to enforce the terms hereof
or to declare rights hereunder, the prevailing party in any such action, on
trial and appeal, shall be entitled to his reasonable attorney's fees to be paid
by the losing party as fixed by the Court.
Additional Provisions.
A. Sublessee shall accept the Premises in its "As Is" condition, subject
to a letter to be agreed upon by both Sublessee and Sublessor which is
attached hereto as Exhibit C.
B. Sublessor shall deliver the Premises with all cubicles in good working
order and both parties shall agree and execute a list of equipment
that will remain in the Premises during the term of the sublease and
will remain the property of the Sublessor at the end of the sublease
term. Such equipment list is attached hereto as Exhibit B.
C. Sublessee shall have access, not occupancy to the Premises on
September 15, 2001, upon Sublessor receiving Master Lessor's consent,
for the purpose of installing items that are pertinent to Sublessee's
business.
D. Sublessor agrees to warrant that the mechanical system (HVAC) shall be
in good working order for the first thirty (30) days after the
commencement date.
If this Sublease has been filled in it has been prepared
for submission to your attorney for his approval. No
representation or recommendation is made by Colliers
International, Inc. or its agents or employees as to the
legal sufficiency, legal effect, or tax consequences of
this Sublease or the transaction relating thereto.
Executed at _____________________________ PERICOM SEMICONDUCTOR CORPORATION
-----------------------------------
_________________________________________ a California corporation
on ______________________________________ By ________________________________
address _________________________________ By ________________________________
_________________________________________ "Sublessor" (Corporate Seal)
STANDARD SUBLEASE Page 6 of 6
Executed at __________________________ YESVIDEO, INC., a Delaware corporation
---------------------------------------
on ___________________________________ By ____________________________________
address ______________________________ By ____________________________________
______________________________________ "Sublessee" (Corporate Seal)
Executed at __________________________ CARRAMERICA REALTY CORPORATION
-------------------------------
______________________________________ a Maryland corporation
on ___________________________________ By ____________________________________
address ______________________________ By ____________________________________
______________________________________ "Master Lessor" (Corporate Seal)