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Title: |
Lease Agreement |
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Date: |
2001 |
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Preview shows 27KB of 110KB total |
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$50 |
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#1392151 |
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DATE: MAY 5, 2001
LANDLORD: ADAPTEC, INC., A DELAWARE CORPORATION
TENANT: ROXIO, INC., A DELAWARE CORPORATION
PREMISES: 461 SOUTH MILPITAS BLVD. (BUILDING 5), MILPITAS, CALIFORNIA 95035
LEASE AGREEMENT
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PARAGRAPH PAGE
<S> <C> <C>
1. Fundamental Lease Provisions................................................................. 3
2. Premises..................................................................................... 4
3. Use.......................................................................................... 4
4. Rent......................................................................................... 4
5. Term......................................................................................... 5
6. Possession................................................................................... 5
7. Common Areas................................................................................. 5
8. Parking...................................................................................... 6
9. Expenses of Operation and Maintenance of the Complex......................................... 6
10. Acceptance and Surrender of Premises......................................................... 6
11. Alterations and Additions.................................................................... 6
12. Maintenance and Repair of the Premises....................................................... 7
13. Utility and Other Services................................................................... 7
14. Furnishings, Office Supplies and Equipment................................................... 7
15. Taxes........................................................................................ 7
16. Tenant's Insurance .......................................................................... 8
17. Landlord's Insurance; Waiver of Subrogation.................................................. 8
18. Indemnification; Exemption of Landlord from Liability........................................ 8
19. Compliance................................................................................... 9
20. Liens........................................................................................ 9
21. Assignment and Subletting.................................................................... 9
22. Subordination and Mortgages.................................................................. 10
23. Entry by Landlord............................................................................ 10
24. Tenant's Default............................................................................. 10
25. Landlord's Remedies and Rights............................................................... 10
26. Destruction.................................................................................. 11
27. Eminent Domain............................................................................... 11
28. Sale or Conveyance by Landlord............................................................... 12
29. Attornment to Lender or Third Party.......................................................... 12
30. Holding Over................................................................................. 12
31. Certificate of Estoppel...................................................................... 12
32. Construction Changes......................................................................... 12
33. Right of Landlord to Perform................................................................. 12
34. Attorney's Fees.............................................................................. 12
35. Waiver....................................................................................... 12
36. Notices...................................................................................... 12
37. Examination of Lease......................................................................... 13
38. Default by Landlord.......................................................................... 13
39. Corporate Authority.......................................................................... 13
40. Limitation of Liability...................................................................... 13
41. Brokers...................................................................................... 13
42. Signs........................................................................................ 13
43. Hazardous Materials.......................................................................... 13
44. Interest..................................................................................... 14
45. Use of Furniture............................................................................. 14
46. Early Termination Right...................................................................... 14
47. Miscellaneous and General Provisions......................................................... 14
</TABLE>
ADDENDA AND EXHIBITS
Exhibit A -- Floor Plan of the Premises
Exhibit B -- Site Plan of Complex and Building
Exhibit C-1 -- Tenant Improvements Space Plan
Exhibit C-2 -- Alterations and Additions
Exhibit D -- Building Common Areas
Exhibit E -- Premises Configuration for Surrender
Exhibit F -- Original Configuration of Furniture
2
<PAGE>
FULL SERVICE GROSS
LEASE AGREEMENT
DATED: May 5, 2001
LANDLORD: ADAPTEC, INC., a Delaware corporation
TENANT: ROXIO, INC., a Delaware corporation
1. FUNDAMENTAL LEASE PROVISIONS.
A. PREMISES: The following premises ("Premises") in the building located on a
parcel of land in the County of Alameda, State of California, with an
address of 461 South Milpitas Boulevard, Milpitas, California 95035
("Building"): 42,283 rentable square feet as shown on EXHIBIT A attached
hereto. The Building is located within a complex that consists of multiple
buildings, together with related driveways, parking areas, and related
fixtures and improvements. For purposes of this Lease "the Complex" shall
consist of Buildings 5 and 6 as designated on EXHIBIT B.
B. LEASE TERM: 60 full calendar months from the Commencement Date.
C. COMMENCEMENT DATE: The commencement date of this Lease shall be May 5, 2001
(the "Commencement Date").
D. BASIC RENT: (Paragraph 4.A): Lease Year 1: $2.61/rsf/month
Lease Year 2: $2.69/rsf/month
Lease Year 3: $2.77/rsf/month
Lease Year 4: $2.85/rsf/month
Lease Year 5: $2.93/rsf/month
References herein to Lease Years shall be based on the Commencement Date.
E. ADDITIONAL RENT: Costs and expenses under this Lease. (Paragraph 4.D)
F. TENANT'S SHARE: N/A
G. PREPAID RENT: $110,358.63 for the first month of the Lease Term.
(Paragraph 4.G)
H. BASIC RENT ADJUSTMENT: 3% per rentable square foot per year, as set forth
in the rent schedule in Paragraph 1.D hereof.
I. SECURITY DEPOSIT: $110,358.63 (the "Security Deposit"). (Paragraph 4.F)
J. PERMITTED USE: general office use, research and development, light
manufacturing and sales. (Paragraph 3)
K. NUMBER OF PARKING SPACES: 4 spaces per 1,000 rentable square feet of the
Premises as to which the Commencement Date has occurred, in common with
other Complex occupants (170 spaces). (Paragraph 8)
L. ADDRESSES FOR NOTICES AND PAYMENT OF RENT (Paragraphs 4.E and 36):
To Landlord: Adaptec, Inc.
691 South Milpitas Boulevard, MS 20
Milpitas, CA 95035
Attn: Louie Bringino
Fax: (408) 957-6600
To Tenant: Roxio, Inc.
461 South Milpitas Boulevard
Milpitas, CA 95035
Attn: Spencer Clevenger
Fax: (408) 957-4544
M. TENANT'S BROKER: N/A. (Paragraph 41)
N. GUARANTORS: N/A.
O. ADDENDA AND EXHIBITS: The following addenda and exhibits are added hereto
and included as part of this Lease:
Exhibit A -- Floor Plan of the Premises
Exhibit B -- Site Plan of Complex and Building
Exhibit C-1 -- Tenant Improvements Space Plan
Exhibit C-2 -- Alterations and Additions
Exhibit D -- Building Common Areas
Exhibit E -- Premises Configuration for Surrender
3
<PAGE>
Exhibit F -- Original Configuration of Furniture
Each reference in this Lease to any of the provisions in this Paragraph 1 shall
be construed to incorporate all of the terms of each such provision. In the
event of any conflict between this Paragraph 1 and the balance of the Lease, the
balance of the Lease shall control.
2. PREMISES.
A. PREMISES. Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord the Premises until the expiration of the Lease Term, at the Rent and
upon the terms and conditions hereinafter set forth. Said letting and hiring is
upon and subject to the terms, covenants and conditions hereinafter set forth,
and Tenant covenants as a material part of the consideration for this Lease to
perform and observe each and all of said terms, covenants and conditions.
B. IMPROVEMENTS. Prior to the Commencement Date of this Lease, Landlord agrees
to construct certain improvements (the "Tenant Improvements") as follows: (i)
Install new wall and door to separate room #5137 and room #5137A; (ii) create
pass through in wall separating room #5137A and room #5138; (iii) install two
(2) key locks in room #5176; (iv) secure the door in room #5187 to separate that
room from Suite 1; and (v) install new door in fire corridor prepared for a card
reader. The Tenant Improvements are described in the space plan attached as
EXHIBIT C-1 hereto and incorporated herein by reference, in accordance with such
specifications as may be set forth in such EXHIBIT C-1. The Tenant Improvements
shall be deemed substantially complete when Landlord notifies Tenant in writing
that the Tenant Improvements (if any) are substantially completed in accordance
with EXHIBIT C-1, subject only to "punch list" items that do not materially
diminish the usefulness of the Premises. The parties acknowledge that Landlord
has already installed three (3) 20AMP 120V circuits supported by a back-up
generator in room #5137A. Landlord shall have no obligation to make any
improvement or alteration to the Premises except as specifically and expressly
agreed to in writing by Landlord, and all other improvements or alterations
required by Tenant for Tenant's use and occupancy of the Premises (including
without limitation the installation of satellite dishes on the roof of the
Building) shall be Tenant's sole responsibility at Tenant's sole cost, in
accordance with Paragraph 11 and other applicable provisions of this Lease.
C. SQUARE FOOTAGE. Landlord and Tenant conclusively agree that the statements
of rentable square footage contained herein shall be deemed to be correct and
binding upon the parties for all purposes under this Lease, even if subsequent
measurements determine that one or more of such figures is incorrect.
3. USE. Tenant shall use the Premises only in conformance with applicable
governmental laws, regulations, rules and ordinances, including without
limitation the Americans With Disabilities Act of 1990 (the "ADA"), and solely
for the purpose specified in Paragraph 1.J and for no other purpose. Tenant
shall not do or permit its employees, agents, contractors or invitees (the
"Tenant's Related Parties") to do in or about the Premises or the Complex nor
bring or keep or permit Tenant's Related Parties to bring or keep in or about
the Premises or the Complex anything which is prohibited by or will in any way
increase the existing rate of (or otherwise affect) fire or any insurance
covering the Premises or the Complex or any part thereof, or any of its
contents, or will cause a cancellation of any insurance covering the Premises or
the Complex or any part thereof, or any of its contents. Tenant shall not do or
permit Tenant's Related Parties to do anything in, on or about the Premises or
the Complex which will in any way obstruct or interfere with the rights of other
tenants or occupants of the Complex or injure or annoy them, or use or allow the
Premises to be used for any improper, immoral, unlawful or objectionable
purpose, nor shall Tenant cause, maintain or permit Tenant's Related Parties to
create any nuisance in, on or about the Premises or the Complex. No sale by
auction shall be permitted on the Premises or in the Complex. Tenant shall not
place any loads upon the floors, walls, or ceiling, which endanger the
structure, or place any harmful fluids or other materials in the drainage system
of the Building therein, or overload existing electrical or other mechanical
systems. No waste materials or refuse shall be dumped upon or permitted to
remain upon any part of the Premises or outside of the Premises, except in trash
containers placed inside exterior enclosures designated by Landlord for that
purpose or inside of the Building proper where designated by Landlord. No
materials, supplies, equipment, finished products or semi-finished products, raw
materials or articles of any nature shall be stored upon or permitted to remain
outside the Premises. No loudspeaker or other device, system or apparatus which
can be heard outside the Premises shall be used in or at the Premises without
the prior written consent of Landlord. Tenant shall not commit any waste in or
upon the Premises. Tenant shall, upon receipt of copies thereof, comply with any
covenants, conditions, or restrictions ("CC&R's") affecting the Premises, as the
same may hereafter be amended from time to time, as well as any reasonable rules
and regulations promulgated by Landlord from time to time (the "Rules and
Regulations"). Landlord reserves the right to reasonably amend such Rules and
Regulations from time to time as Landlord may deem appropriate, which amendment
shall be binding upon Tenant upon delivery of a copy thereof to Tenant. Tenant
shall use commercially reasonable efforts to cause Tenant's Related Parties to
cooperate in observance of such Rules and Regulations, as the same may be
amended from time to time. The provisions of this Paragraph are for the benefit
of Landlord only and shall not be construed to be for the benefit of any tenant
or occupant of the Complex. Landlord shall not be responsible to Tenant for the
breach of the Rules and Regulations by any other tenant or occupant of the
Complex.
4. RENT
A. BASIC RENT. Tenant agrees to pay to Landlord the sum set forth in Paragraph
1.D hereof as "Basic Rent" based on the square footage of the Premises as to
which the Commencement Date has occurred, in lawful money of the United States
of America, without deduction, offset, prior notice, or demand, on the first day
of every calendar month of the Lease Term, and Landlord agrees to accept such
sum as Basic Rent for the Premises.
B. PARTIAL MONTHS. In the event that the Lease Term commences on a date other
than the first day of a calendar month as to any portion of the Premises, on the
applicable Commencement Date, Tenant shall pay to Landlord as Basic Rent for the
period from such Commencement Date to the first day of the first full calendar
month that proportion of the monthly Basic Rent hereunder which the number of
days between such Commencement Date and the first day of the next succeeding
calendar month bears to the actual number of days in such calendar month, and
such partial first month shall not be counted when computing the number of
months in the term of this Lease. In the event that the Lease Term is terminated
for any reason on a date other than the last day of a calendar month, on the
first day of the last calendar month of the Lease Term Tenant shall pay to
Landlord as Basic Rent for the period from said first day of said last calendar
month to and including the last day of the Lease Term that proportion of the
monthly Basic Rent hereunder which the number of days between said first day of
said last calendar month and the last day of the term hereof bears to the actual
number of days in such calendar month.
C. LATE CHARGE. Notwithstanding any other provision of this Lease, if Tenant
is delinquent in the payment of Rent as set forth in this Paragraph 4, or any
part thereof, Tenant agrees to pay Landlord, in addition to the delinquent Rent
due, a late charge for each Rent payment which is not received by Landlord
within ten (10) days after due date for such payment. Said late charge shall be
six percent (6%) of the delinquent Rent payment. Notwithstanding the foregoing,
Landlord shall waive such late charge one time only in the first twelve (12)
month period if Tenant pays any delinquent amount within five (5) days of
receipt of written notice of such delinquency by Landlord.
4
<PAGE>
D. ADDITIONAL RENT. Beginning with the Commencement Date, Tenant shall pay to
Landlord in addition to the Basic Rent and as Additional Rent all charges, costs
and expenses that Tenant is required to pay under this Lease, together with all
interest and penalties, costs and expenses including without limitation
attorneys' fees and legal expenses, that may accrue thereto in the event of
Tenant's failure to pay such amounts within applicable notice and cure periods,
and all damages, reasonable costs and expenses which Landlord may incur by
reason of default of Tenant or failure on Tenant's part to comply with the terms
of this Lease within applicable notice and cure periods. In the event of
nonpayment by Tenant of Additional Rent, Landlord shall have all the rights and
remedies with respect thereto as Landlord has for nonpayment of Basic Rent. The
Additional Rent due hereunder shall be paid to Landlord or Landlord's agent, at
the option of Landlord, directly to the designated recipient thereof, as and
when such amounts are due, in accordance with statements or invoices presented
to Tenant. The obligations of Tenant under this Paragraph shall survive the
expiration or other termination of this Lease.
E. PLACE OF PAYMENT OF RENT. All Basic Rent hereunder and all payments
hereunder for Additional Rent shall be paid to Landlord at the address of
Landlord as specified in Paragraph 1.L or such other place as Landlord may from
time to time designate in writing.
F. SECURITY DEPOSIT. Concurrently with Tenant's execution of this Lease,
Tenant shall deposit with Landlord the sum specified in Paragraph 1.I hereof as
the Security Deposit. Said sum shall be held by Landlord as a security deposit
for the faithful performance by Tenant of all of the terms, covenants, and
conditions of this Lease to be kept and performed by Tenant during the Lease
Term, and shall not in any event be used or applied by Tenant as "last month's
rent." If Tenant defaults with respect to any provision of this Lease after
expiration of applicable notice and cure periods, including, but not limited to,
the provisions relating to the payment of Rent, Landlord may (but shall not be
required to) use, apply or retain all or any part of the Security Deposit for
the payment of any amount which Landlord may spend by reason of Tenant's default
or to compensate Landlord for any other loss or damage which Landlord may suffer
by reason of Tenant's default. If any portion of said Security Deposit is so
used or applied, Tenant shall, within ten (10) days after written demand
therefor, deposit cash with Landlord in the amount sufficient to restore the
Security Deposit to its original amount. Tenant's failure to do so shall be a
material breach of this Lease. Landlord shall not be required to keep this
Security Deposit separate from its general funds, and Tenant shall not be
entitled to interest on such Security Deposit. Provided that Tenant is not in
default under this lease, the Security Deposit or any balance thereof shall be
returned to Tenant (or at Landlord's option, to the last assignee of Tenant's
interest hereunder) at the expiration of the Lease Term and after Tenant has
vacated the Premises. In the event of termination of Landlord's interest in this
Lease, Landlord shall transfer said Security Deposit to Landlord's successor in
interest whereupon Landlord shall be released from liability for the return of
such Security Deposit or any accounting therefor.
G. PREPAID RENT. Concurrently with Tenant's execution of this Lease, Tenant
shall pay to Landlord the sum specified in Paragraph 1.G as prepaid Rent for the
months designated therein.
H. DEFINITION OF RENT. The term "Rent" as used in this Lease shall mean Basic
Rent, Additional Rent, and any and all other sums, however designated, required
to be paid by Tenant under this Lease, whether payable to Landlord or third
parties.
I. ADDITIONAL RIGHTS OF LANDLORD. In addition to any late payment or interest
charges payable to Landlord hereunder and any other rights or remedies that
Landlord may have under this Lease or applicable law, all of which rights and
remedies shall be cumulative, Tenant, as a material part of the consideration
for this Lease, hereby agrees as follows:
(1) If Tenant makes any payment under this Lease by check and such check
is dishonored or otherwise returned unpaid to Landlord due to insufficient
funds, then Landlord, at its option, may require Tenant to make all future
payments under this Lease for the next twelve (12) month period by cashier's
check or wire transfer in accordance with wiring instructions given to Tenant by
Landlord.
(2) If Landlord fails to receive any payment that Tenant is required to
make under this Lease when due and Landlord thereafter, and prior to receiving
such payment, proceeds to serve a "3-Day Notice" or similar notice to Tenant as
permitted under Section 1162 of the California Code of Civil Procedure, then in
each such instance, and regardless of whether Tenant thereafter makes such
payment, Tenant shall pay to Landlord, upon demand, as Additional Rent, an
administrative charge in the amount of $250. Tenant acknowledges that such
charge constitutes liquidated damages and not a penalty and represents a
reasonable estimate of the additional administrative costs that Landlord will
incur in serving such notice.
(3) If Landlord fails to receive any payment that Tenant is required
to make under this Lease within ten (10) days after the due date for such
payment, and such delinquency occurs on three (3) separate occasions, then
Landlord, at its election, exercisable by one or more written notices to Tenant
at any time after the third such delinquency, may require any or all of the
following: (i) that all future payments of Basic Rent for the next twelve (12)
month period be paid three (3) months in advance; and (ii) that the Security
Deposit specified in Paragraph 1.H be immediately increased by one hundred
percent (100%), in which event Tenant shall, within ten (10) days after written
demand therefor, deposit such additional amount in cash with Landlord.
5. TERM. The term of this Lease (the "Lease Term") shall be for the period of
time specified in Paragraph 1.B (unless sooner terminated as provided for in
this Lease) and shall commence on the Commencement Date described in Paragraph
1.C.
6. POSSESSION. Landlord shall use commercially reasonable efforts to deliver
possession of the Premises to Tenant between May 5, 2001 and May 31, 2001. If
for any reason Landlord cannot deliver possession of any of the Premises to
Tenant on the date set forth in Paragraph 1.C or any other date, this Lease
shall not be void or voidable; no obligation of Tenant shall be affected
thereby; nor shall Landlord or Landlord's agents be liable to Tenant for any
loss or damage resulting therefrom. In the event, however, that Landlord fails
to deliver possession of the Premises on or before May 31, 2001 (which date
shall be extended by delays caused by Acts of God, strikes, war, utilities,
governmental bodies, weather, unavailable materials, and delays beyond
Landlord's control), the date that Tenant would otherwise commence paying Basic
Rent shall be delayed by one (1) day for each day delivery of the Premises is
delayed beyond such date.
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