<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------
FORM 10-Q
(Mark One)
(X) QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended March 31, 1997
or
( ) TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from __________ to __________
Commission File Number: 0-27246
ZORAN CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 94-2794449
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3112 SCOTT BOULEVARD, SANTA CLARA, CALIFORNIA 95054
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (408) 919-4111
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days.
Yes X No
---- ----
The number of outstanding shares of the registrant's Common Stock, $.001 par
value, as of May 5, 1997 was 9,310,771.
<PAGE>
ZORAN CORPORATION
INDEX
PAGE NO.
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PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
Condensed Consolidated Balance Sheets
March 31, 1997 and December 31, 1996 3
Condensed Consolidated Income Statements
Three Months Ended March 31, 1997 and 1996 4
Condensed Consolidated Statements of Cash Flows
Three Months Ended March 31, 1997 and 1996 5
Notes to Condensed Consolidated Financial
Statements 6
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of Operations 7
PART II. OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K 15
SIGNATURES 15
2
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ZORAN CORPORATION
CONDENSED CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS, EXCEPT SHARE DATA)
(UNAUDITED)
<TABLE>
<CAPTION>
MARCH 31, DECEMBER 31,
1997 1996
--------- ------------
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $ 9,741 $ 11,176
Short-term investments 11,865 12,243
Accounts receivable, net 9,275 11,088
Inventory 1,039 1,799
Prepaid expenses and other current assets 1,529 1,219
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Total current assets 33,449 37,525
Property and equipment, net 4,380 3,857
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Total assets $ 37,829 $ 41,382
--------- ---------
--------- ---------
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 2,709 $ 5,868
Accrued expenses and other liabilities 5,881 6,984
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Total current liabilities 8,590 12,852
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Stockholders' equity:
Common Stock, $0.001 par value;
20,000,000 shares authorized;
9,168,651 and 9,029,365 shares
issued and outstanding 9 9
Additional paid-in capital 77,887 77,855
Accumulated deficit (48,657) (49,334)
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Total stockholders' equity 29,239 28,530
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Total liabilities and stockholders' equity $ 37,829 $ 41,382
--------- ---------
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</TABLE>
The accompanying notes are an integral part of
these condensed consolidated financial statements.
3
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ZORAN CORPORATION
CONDENSED CONSOLIDATED INCOME STATEMENTS
(IN THOUSANDS, EXCEPT PER SHARE DATA)
(UNAUDITED)
<TABLE>
<CAPTION>
THREE MONTHS ENDED
MARCH 31,
------------------------
1997 1996
---------- ----------
<S> <C> <C>
Revenues:
Product sales $ 6,316 $ 6,381
Software, licensing and development 3,751 1,187
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Total revenues 10,067 7,568
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Costs and expenses:
Cost of product sales 3,526 3,425
Research and development 3,312 1,580
Selling, general and administrative 2,604 2,063
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Total costs and expenses 9,442 7,068
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Operating income 625 500
Interest and other income (expense), net 278 244
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Income before income taxes 903 744
Provision for income taxes 226 83
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Net income $ 677 $ 661
-------- -------
-------- -------
Net income per share $ 0.06 $ 0.06
-------- -------
-------- -------
Weighted average common shares
and equivalents 11,070 10,175
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-------- -------
</TABLE>
The accompanying notes are an integral part of
these condensed consolidated financial statements.
4
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ZORAN CORPORATION
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
(UNAUDITED)
<TABLE>
<CAPTION>
THREE MONTHS ENDED
MARCH 31,
--------------------
1997 1996
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<S> <C> <C>
Cash flows from operating activities:
Net income $ 677 $ 661
Adjustments:
Depreciation and amortization 379 264
Changes in assets and liabilities:
Accounts receivable 1,813 (931)
Inventory 760 69
Prepaid expenses and other current assets (310) (73)
Accounts payable (3,159) 48
Accrued expenses and other liabilities (1,103) 537
-------- --------
Net cash provided by (used in) operating
activities (943) 575
-------- --------
Cash flows from investing activities:
Sales (purchases) of short-term investments, net 378 (15,490)
Expenditures for property and equipment (892) (658)
-------- --------
Net cash used in investing activities (514) (16,148)
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Cash flows from financing activities:
Repayment of debt - (93)
Proceeds from issuance of Common Stock, net 22 3,591
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Net cash provided by financing activities 22 3,498
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Net decrease in cash and cash equivalents (1,435) (12,075)
Cash and cash equivalents at beginning of period 11,176 21,438
-------- --------
Cash and cash equivalents at end of period $ 9,741 $ 9,363
-------- --------
-------- --------
</TABLE>
The accompanying notes are an integral part of
these condensed consolidated financial statements.
5
<PAGE>
ZORAN CORPORATION
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
1. BASIS OF PRESENTATION
The accompanying unaudited condensed consolidated financial statements
contain all adjustments (consisting only of normal recurring adjustments)
which, in the opinion of management, are necessary to present fairly the
financial information included therein. While the Company believes that the
disclosures are adequate to make the information not misleading, it is
suggested that these financial statements be read in conjunction with the
audited consolidated financial statements and accompanying notes included in
the Company's Annual Report on Form 10-K for the year ended December 31,
1996. Financial statements for the three months ended March 31, 1996 have
been restated to reflect the acquisition of CompCore Multimedia, Inc.
("CompCore") in December 1996 which was accounted for as a pooling of
interests. Results for the interim periods presented are not necessarily
indicative of the results to be expected for the full year.
2. BALANCE SHEET COMPONENTS
March 31, December 31,
1997 1996
--------- ------------
Inventories (in thousands):
Work-in-process $ 165 $ 382
Finished goods 874 1,417
-------- --------
$ 1,039 $ 1,799
-------- --------
-------- --------
3. INCOME TAXES
The provision for income taxes reflects the estimated annualized
effective tax rate applied to earnings for the interim period. The effective
tax rate differs from the U.S. statutory rate due to utilization of net
operating losses and State of Israel tax benefits on foreign earnings. The
provision includes primarily taxes on income in excess of net operating loss
carryover limitations and foreign withholding taxes.
4. NET INCOME PER SHARE
Net income per share is computed using the weighted average number of
common and common equivalent shares outstanding during the period. Common
equivalent shares consist of shares issuable upon exercise of stock options
and warrants (using the treasury stock method).
5. FAS 128 SAB 74 REQUIREMENTS
In February 1997, the Financial Accounting Standards Board issued
Statement of Financial Accounting Standards No. 128, "Earnings Per Share."
This Statement is effective for periods ending after December 15, 1997 and
redefines earnings per share under generally accepted accounting principals.
Under the new standard, primary earnings per share is replaced by basic
earnings per share and fully diluted earnings per share is replaced by
diluted earnings per share. If the Company had adopted this Statement for
the quarter ended March 31, 1997, the Company's earnings per share would have
been as follows:
Three Months Ended March 31,
----------------------------
1997 1966
----- -----
Basic earnings per share $0.07 $0.08
Diluted earnings per share 0.06 0.06
6
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ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
THE FOLLOWING DISCUSSION INCLUDES FORWARD-LOOKING STATEMENTS WITH
RESPECT TO THE COMPANY'S FUTURE FINANCIAL PERFORMANCE. ACTUAL RESULTS MAY
DIFFER MATERIALLY FROM THOSE CURRENTLY ANTICIPATED DEPENDING UPON A VARIETY
OF FACTORS, INCLUDING THOSE DESCRIBED BELOW UNDER THE SUB-HEADING, "FUTURE
PERFORMANCE AND RISK FACTORS" AND DISCUSSED MORE FULLY IN THE COMPANY'S
ANNUAL REPORT ON FORM 10-K FOR THE YEAR ENDED DECEMBER 31, 1996.
OVERVIEW
From the Company's inception in 1981 through 1991, the Company derived
the substantial majority of its revenue from digital filter processors
("DFPs") and vector signal processors ("VSPs") used principally in military,
industrial and medical applications. In 1989, the Company repositioned its
business to develop and market integrated circuits designed to compress video
and audio data for commercial and consumer applications in evolving
multimedia markets. At that time, the Company discontinued development of
DFP and VSP products, and in mid-1994, the Company advised its customers that
it was discontinuing production of these products. DFP and VSP products are
not expected to contribute significant revenues in future periods. The
Company's current lines of multimedia compression products include JPEG-based
products used in video editing systems and filmless digital cameras,
MPEG-based products used in video playback and Dolby Digital-based audio
products used in movie and home theater systems and DVD players which have
been recently introduced by several manufacturers.
In December 1996, the Company acquired CompCore, a designer of cores for
video and audio decoder integrated circuits and a provider of software-based
compression products. The Company issued approximately 2.0 million shares of
Zoran Common Stock in exchange for all of the outstanding Common Stock of
CompCore. The Company also assumed all outstanding options to purchase
CompCore Common Stock which were exchanged for options to purchase
approximately 900,000 shares of Zoran Common Stock. The acquisition was
accounted for as a pooling of interests, and the financial statements of the
Company and the information herein have been restated to include the results
of CompCore for all periods.
Historically, average selling prices ("ASPs") in the semiconductor
industry in general, and for the Company's products in particular, have
decreased over the life of a particular product. Although ASPs have
fluctuated substantially from period to period, these fluctuations have been
driven principally by changes in customer mix (original equipment
manufacturer ("OEM") sales versus sales to distributors) and the transition
from low-volume sales to high-volume production sales rather than by factors
related to product life cycles. During 1996 and 1997, the Company reduced its
ASPs on certain multimedia products in order to better penetrate the consumer
market. The Company believes that, as its multimedia product lines continue
to mature and competitive markets evolve, it is likely to experience further
declines in the ASPs of its multimedia products, although the timing and
amount of such future changes cannot be predicted with any certainty. There
can be no assurance that costs will decrease at the same rate as such
declines in ASPs, or at all.
The Company sells its products, either directly or through distributors
or independent sales representatives, to OEMs worldwide. Sales prices to
distributors are generally lower than prices for direct sales, as
distributors are responsible for certain sales and marketing expenses,
maintenance of inventories and customer support and training. Lower gross
margins on sales to distributors are partially offset by reduced selling and
marketing expenses related to such sales. Sales in Japan are primarily made
through Fujifilm Microdevices Co., Ltd. ("Fujifilm"), the Company's strategic
partner and distributor in Japan. Fujifilm provides more sales and marketing
support than Zoran's other distributors.
7
<PAGE>
Zoran has historically generated a significant percentage of its total
revenues from development contracts, primarily with key customers. These
development contracts have provided the Company with partial funding for the
development of certain of its products. Payments received by the Company
under these development contracts are recorded as development revenue. The
Company classifies all development costs, including costs related to these
development contracts, as research and development expenses. The Company
retains ownership of the intellectual property developed by it under these
development contracts. While the Company intends to continue to enter into
development contracts with certain strategic partners, it expects development
revenue to decrease as a percentage of total revenues.
The Company is a party to certain research and development agreements
with the Office of the Chief Scientist in Israel's Ministry of Trade and
Industry Department (the "Chief Scientist") and the Israel-United States
Binational Industrial Research and Development Foundation ("BIRDF"), which
fund up to 50% of incurred project costs for approved products up to
specified contract maximums. These agreements require the Company to use its
best efforts to achieve specified results and require the Company to pay
royalties at rates of 2 1/2% to 5% of resulting product sales, and up to 30%
of resulting license revenues, up to a maximum of 100% to 150% of total
funding received. Reported research and development expenses are net of
these grants, which fluctuate from period to period.
The Company conducts a substantial portion of its research and
development and certain sales and marketing and administrative operations in
Israel through its wholly-owned Israeli subsidiary. As a result, certain
expenses are incurred in Israeli shekels. Until May 1995, substantially all
of the Company's product sales were made from the Company's U.S. facility.
In May 1995, the Company restructured its manufacturing and sales
organizations and began selling a portion of its products directly from its
facility in Israel. To date, substantially all of the Company's product
sales and its software, licensing and development revenue have been
denominated in U.S. dollars and most costs of product sales have been
incurred in U.S. dollars. The Company expects that most of its revenues and
costs of product sales will continue to be denominated and incurred in U.S.
dollars for the foreseeable future. The Company has not experienced material
losses or gains as a result of currency exchange rate fluctuations and has
not engaged in hedging transactions to reduce is exposure to such
fluctuations. The Company intends to actively monitor its foreign exchange
exposure and to take appropriate action to reduce its foreign exchange risk,
if such risk becomes material.
RESULTS OF OPERATIONS
REVENUES
Total revenues for the quarter ended March 31, 1997 were $10.1 million,
an increase of 33% from $7.6 million for the same period in 1996. Product
sales of $6.3 million for the current quarter were approximately the same as
the first quarter of last year. Unit sales of the Company's JPEG-based
products increased during the current quarter compared to the comparable
quarter last year. Despite the increase in unit sales, revenue from this
product line declined slightly due to a shift in product mix toward lower
priced, higher volume devices such as lower cost desk-top video editing
products and digital filmless cameras. Due to the continued delays in the
development of the DVD market and uncertainty regarding the timing of volume
production and shipment of DVD players, unit sales and revenues of the
Company's Dolby Digital audio compression ICs decreased. These sales
decreases were almost entirely offset by increased unit sales of other
products. Software, licensing and development revenue of $3.8 million for
the quarter ended March 31, 1997 more than tripled compared to the first
quarter of 1996. This increase was due to the higher unit volume of software
and hardware products sold by the Company's customers and significant new
licensing contracts.
Sales to Fujifilm, the Company's strategic partner and distributor in
Japan, as well as an OEM customer, accounted for 10% of the Company's total
revenues in the quarter ended March 31, 1997 compared to 13% in the
comparable 1996 quarter. Three other customers accounted for 20%, 8% and
below 1% of total revenues in the current quarter compared to 29%, below 1%
and 19%, respectively, in the quarter ended March 31, 1996.
8
<PAGE>
PRODUCT GROSS PROFIT
Product gross margin was 44% during the quarter ended March 31, 1997,
compared to 46% in the first quarter of 1996. The margin rate decrease was
primarily due to a shift in product mix to higher unit volume sales of
relatively lower priced, lower margin JPEG-based devices. The Company's
product gross margin is dependent on product mix and on the percentage of
products sold directly to the Company's OEM customers versus indirectly
through its marketing partners who purchase the Company's products at lower
prices but absorb most of the associated marketing and sales support
expenses. The Company expects product and customer mix to continue to
fluctuate in future quarters, causing further fluctuations in margins.
RESEARCH AND DEVELOPMENT
Research and development ("R&D") expenses of $3.3 million for the
quarter ended March 31, 1997 were approximately 110% above the comparable
period of 1996. The increase was a result of the planned growth in the
Company's development capabilities in conjunction with the Company's growth
in general and its increased software, licensing and development revenue.
The Company continues to believe that significant investments in R&D are
required for it to remain competitive, and anticipates that such expenses in
terms of absolute dollars may increase in future periods, although such
expenses as a percentage of total revenues may fluctuate.
SELLING, GENERAL AND ADMINISTRATIVE
Selling, general and administrative ("SG&A") expenses increased 26% to
$2.6 million for the current quarter from $2.1 million for the first quarter
of 1996. SG&A expenses, however, decreased slightly as a percentage of total
revenues. The increase in absolute dollars for the current period was due
primarily to increased sales, marketing and applications infrastructure
growth to support increased sales levels and increased administrative
expenses associated the Company's status as a publicly-traded company. The
Company expects that SG&A expenses may continue to increase in order to
support the growth of the Company.
INTEREST AND OTHER INCOME (EXPENSE), NET
Net interest and other income and expense resulted in net other income
of $278,000 for the quarter ended March 31, 1997, compared to $244,000 for
the comparable quarter last year. The increase resulted primarily from
decreased interest expense as a result of the repayment of the Company's
remaining debt during 1996.
PROVISION FOR INCOME TAXES
The Company's estimated effective tax rate increased to 25% for the
current year from 11% last year. The increase was primarily due to taxes on
income in excess of the net operating loss carryover limitation and foreign
withholding taxes.
9
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LIQUIDITY AND CAPITAL RESOURCES
Net proceeds from the initial public offering of the Company's Common
Stock (the "IPO") in December 1995 and the exercise of certain warrants in
connection with the IPO totaled $17.5 million. The Company also received net
proceeds of $3.5 million in January 1996 upon the exercise of the
underwriters' over-allotment option. At March 31, 1997, the Company had
$21.6 million of cash, cash equivalents and short-term investments.
The Company's operating activities used cash of $943,000 in the quarter
ended March 31, 1997. Cash used in operating activities reflected changes in
working capital, partially offset by net income and depreciation and
amortization. The principal change in working capital during the quarter was
a decrease in accounts payable and accrued expenses of $4.3 million due
partially to payments of expenses related to the acquisition of CompCore in
December 1996. During the quarter, the Company's capital expenditures were
$892,000. The Company had no bank debt at December 31, 1996 or at March 31,
1997.
The Company believes that its current balances of cash, cash equivalents
and short-term investments and anticipated cash flow from operations, will
satisfy the Company's anticipated working capital and capital equipment
requirements through the balance of 1997.
10
<PAGE>
FUTURE PERFORMANCE AND RISK FACTORS
THE COMPANY'S FUTURE BUSINESS, OPERATING RESULTS AND FINANCIAL CONDITION
ARE SUBJECT TO VARIOUS RISKS AND UNCERTAINTIES, INCLUDING THOSE DESCRIBED
BELOW.
PRODUCT CONCENTRATION; EVOLVING MARKETS. Since the Company's markets
are still evolving, only a limited number of commercial and consumer
products that incorporate the Company's integrated circuits are currently in
volume production. Current applications for the Company's products include
professional and consumer video editing systems, PC-based and stand-alone
video CD and DVD players, digital audio systems, filmless digital cameras and
video conferencing systems. During 1994 and 1995, the Company derived a
majority of its product revenues from the sale of integrated circuits for
video editing applications. Sales of audio products accounted for an
increased percentage of product sales in 1996. The Company expects that
sales of its devices for digital audio and video editing applications will
continue to account for a significant portion of its revenues for the near
future. Over the longer term, the Company's ability to generate increased
revenues will be dependent on the expansion of sales of its products for use
in other existing applications, as well as the development and acceptance of
new applications for the Company's technologies and products. The potential
size of the markets for new applications and the timing of their development
and acceptance is uncertain. The Company's future success will depend upon
whether manufacturers select the Company's integrated circuits and software
for incorporation into their products, and upon the successful marketing of
these products by the manufacturers. There can be no assurance that demand
for existing applications will be sustained, that new markets will develop or
that manufacturers developing products for any of these markets will design
the Company's integrated circuits into their products or successfully market
them. The failure of existing and new markets to develop or to be receptive
to the Company's products would have a material adverse effect on the
Company's business, operating results and financial condition.
The emergence of markets for the Company's integrated circuits will be
affected by a variety of factors beyond the Company's control. In
particular, the Company's products are designed to conform with certain
current industry standards. There can be no assurance that manufacturers
will continue to follow these standards or that competing standards will not
emerge which will be preferred by manufacturers. The emergence of markets
for the Company's products is also dependent in part upon third-party content
providers developing and marketing content for end user systems, such as
video and audio playback systems, in a format compatible with the Company's
products. There can be no assurance that these or other factors beyond the
Company's control will not adversely affect the development of markets for
the Company's products.
RELIANCE ON INDEPENDENT FOUNDRIES AND CONTRACTORS. The Company does not
operate any manufacturing facilities, and from time to time shortages of
foundry capacity develop for certain process technologies in the
semiconductor industry. The Company currently relies on independent foundries
to manufacture substantially all of its products. The Company's independent
foundries fabricate products for other companies and may also produce
products of their own design. The Company does not have a long-term supply
contract with two of its principal foundries and, therefore, neither of these
suppliers is obligated to supply products to the Company for any specific
period, in any specific quantity or at any specified price, except as may be
provided in a particular purchase order.
The Company's reliance on independent foundries involves a number of
risks, including the inability to obtain adequate capacity, the
unavailability of or interruption in access to certain process technologies,
reduced control over delivery schedules, quality assurance, manufacturing
yields and cost, and potential misappropriation of the Company's intellectual
property. The loss of any of the Company's foundries as a supplier, the
inability of the Company in a period of increased demand for its products to
expand supply or the Company's inability to obtain timely and adequate
deliveries from its current or future suppliers could reduce or delay
shipments of the Company's products. Any of these developments could damage
relationships with the Company's current and prospective customers and have a
material adverse effect on the Company's business, operating results or
financial condition.
11
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All of the Company's semiconductor products are currently being
assembled by one of two independent contractors and tested by those
contractors or other independent contractors. The Company's reliance on
independent assembly and testing houses limits its control over delivery
schedules, quality assurance and product cost. Disruptions in the provision
of services by the Company's assembly or testing houses or other
circumstances that would require the Company to seek alternative sources of
assembly or testing could lead to supply constraints or delays in the
delivery of the Company's products. These constraints or delays could damage
relationships with current and prospective customers and have a material
adverse effect on the Company's business, operating results or financial
condition.
RECENTLY COMPLETED ACQUISITION. On December 27, 1996, the Company
acquired CompCore. The managements of the Company and CompCore have
completed the merger with the expectation that the merger will result in
beneficial synergies for the companies. Achieving the anticipated benefits
of the merger will depend in part upon whether the integration of the two
companies businesses is accomplished in an efficient and effective manner,
and there can be no assurance that this will occur. The combination of the
two companies will require, among other things, integration of the companies
respective product offerings and technology and coordination of their
research and development, sales and marketing, and financial reporting
efforts. There can be no assurance that such integration will be
accomplished smoothly or successfully. If significant difficulties are
encountered in the integration of the existing product lines and technology,
resources could be diverted from new product development, resulting in delays
in new product introductions. The difficulties of such integration may be
increased by the necessity of coordinating geographically separated
organizations with distinct cultures. The integration of certain operations
following the merger will require the dedication of management and other
personnel resources which may temporarily distract from the day-to-day
business of the combined company. Failure to successfully accomplish the
integration of the two companies' operations could have a material adverse
effect on the combined company's business, financial condition or results of
operations.
NEW PRODUCT DEVELOPMENT AND TIMELY INTRODUCTION OF NEW AND ENHANCED
PRODUCTS. The markets for the Company's products are characterized by rapidly
changing technologies, evolving industry standards, frequent new product
introductions and short product life cycles. The Company expects to increase
its expenses relating to product development, and its future success will
depend to a substantial degree upon its ability to develop and introduce, on
a timely and cost-effective basis, new and enhanced products that meet
changing customer requirements and industry standards. There can be no
assurance that the Company will successfully develop, introduce or manage the
transition to new products. Future delays in the introduction or shipment of
new or enhanced products, the inability of such products to gain market
acceptance or problems associated with new product transitions could
adversely affect the Company's business, operating results and financial
condition.
COMPETITION; PRICING PRESSURES. The Company's existing and potential
competitors include large domestic and international companies that have
substantially greater financial, manufacturing, technical, marketing,
distribution and other resources, broader product lines and longer standing
relationships with customers than the Company. The markets in which the
Company competes are intensely competitive and are characterized by rapid
technological change, declining ASPs and rapid product obsolescence.
CUSTOMER CONCENTRATION; CHANGE IN CUSTOMER MIX. The Company's largest
customers have accounted for a substantial percentage of its revenues, and
sales to these large customers have varied materially from year to year.
There can be no assurance that the Company will be able to retain its key
customers or that such customers will not cancel purchase orders to
reschedule or decrease their level of purchases. In addition, sales to these
key customers may fluctuate significantly from quarter to quarter. Any
development that would result in a substantial decrease or delay in sales to
one or more key customers, including actions by competitors or technological
changes, could have a material adverse effect on the Company's business,
operating results or financial condition. In addition, any development that
would affect the collectibility of account balances from one or more key
customers could have a material adverse effect on the Company's business,
operating results or financial condition.
12
<PAGE>
POTENTIAL FLUCTUATIONS IN OPERATING RESULTS. The Company's quarterly
operating results have varied significantly due to a number of factors,
including the timing of new product introductions by the Company and its
competitors, market acceptance of new and enhanced versions of the Company's
products and products of its customers, the timing of large customer orders,
the availability of development funding and the timing of development
revenue, changes in the mix of products sold and the mix of distribution
channels employed and competitive pricing pressures. The Company expects
that its operating results will fluctuate in the future as a result of these
factors and a variety of other factors, including the availability of
adequate foundry capacity, fluctuations in manufacturing yields, the
emergence of new industry standards, product obsolescence, changes in pricing
policies by the Company, its competitors or its suppliers, the cyclical
nature of the semiconductor industry, the evolving and unpredictable nature
of the markets for products incorporating the Company's integrated circuits
and software and the amount of research and development expenses associated
with new product introductions. The Company's operating results could also
be adversely affected by economic conditions generally or in various
geographic areas where the Company or its customers do business, other
conditions affecting the timing of customer orders, a downturn in the markets
for its customers' products, particularly the consumer electronics market, or
order cancellations or reschedulings. These factors are difficult or
impossible to forecast, and these or other factors could materially affect
the Company's quarterly or annual operating results. The Company places
orders to purchase its products from independent foundries several months in
advance of the scheduled delivery date, often in advance of receiving
non-cancelable orders from its customers. If anticipated shipments or
development revenue in any quarter are canceled or do not occur as quickly as
expected, expense and inventory levels could be disproportionately high. A
significant portion of the Company's expenses is relatively fixed, and the
timing of increases in expenses is based in large part on the Company's
forecast of future revenues. As a result, if revenues do not meet the
Company's expectations it may be unable to quickly adjust expenses to levels
appropriate to actual revenues, which could have a material adverse effect
on the Company's business, operating results or financial condition. To
date, the Company's operating results have not been materially affected by
seasonal factors. However, as markets for consumer products incorporating
the Company's integrated circuits mature, the Company expects that sales will
tend to be stronger during the last several months of the calendar year than
at other times due to increased demand for consumer products during the
holiday season. As a result of the foregoing, the Company's operating
results and stock price may be subject to significant volatility,
particularly on a quarterly basis. Any shortfall in revenues or net income
from levels expected by securities analysts could have an immediate and
significant adverse effect on the trading price of the Company's Common Stock.
MANAGEMENT OF GROWTH. The Company has recently experienced rapid growth
and expansion which has placed, and will continue to place, a significant
strain on its administrative, operational and financial resources and has
resulted, and will continue to result, in a continuing increase in the level
of responsibility for both existing and new management personnel. The
Company anticipates that future growth, if any, will require it to recruit
and hire a substantial number of new engineering, managerial, sales and
marketing personnel. The Company's ability to manage its growth successfully
will also require the Company to continue to expand and improve its
administrative, operational, management and financial systems and controls.
Many of the Company's key operations, including the major portion of its
research and development and a significant portion of its sales and
administrative operations, are located in Israel, while a majority of its
sales and marketing and certain of its research and development and
administrative personnel, including its President and Chief Executive
Officer, are based in the United States. The geographic separation of these
operations is likely to place additional strain on the Company's resources
and its ability to effectively manage its growth. If the Company's
management is unable to manage growth effectively, the Company's business,
operating results or financial condition could be materially and adversely
affected.
13
<PAGE>
DEPENDENCE ON KEY PERSONNEL. The Company's success depends to a
significant degree upon the continuing contributions of its senior
management. The loss of key management personnel could delay product
development cycles or otherwise have a material adverse effect on the
Company's business, operating results or financial condition. There can be
no assurance that the Company will be able to retain the services of any of
its key employees. The Company believes that its future success will also
depend in large part on its ability to attract and retain highly-skilled
engineering, managerial, sales and marketing personnel, both in the United
States and in Israel. Competition for such personnel is intense, and there
can be no assurance that the Company will be successful in attracting,
integrating and retaining such personnel. Failure to attract and retain key
personnel could have a material adverse effect on the Company's business,
operating results or financial condition.
RELIANCE ON INTERNATIONAL SALES AND OPERATIONS; RELIANCE ON OPERATIONS
IN ISRAEL. The Company anticipates that international sales will continue to
represent a significant portion of total revenues. In addition,
substantially all of the Company's products are manufactured, assembled and
tested outside of the United States by independent foundries and
subcontractors. The Company is subject to the risks of doing business
internationally, including unexpected changes in regulatory requirements,
fluctuations in exchange rates, imposition of tariffs and other barriers and
restrictions and the burdens of complying with a variety of foreign laws. The
Company is also subject to general geopolitical risks, such as political and
economic instability and changes in diplomatic and trade relationships, in
connection with its international operations.
A substantial portion of the Company's research and development and
sales operations are located in the State of Israel. Therefore, the Company
is directly affected by the political, economic and military conditions to
which that country is subject. In addition, many of the Company's expenses
in Israel are paid in Israeli shekels, thereby subjecting the Company to the
risk of foreign currency fluctuations and to economic pressures resulting
from Israel's generally high rate of inflation. There can be no assurance
that such factors will not have a material adverse effect of the Company's
business, operating results or financial condition.
VOLATILITY OF STOCK PRICE. The market price of the Company's Common
Stock has fluctuated significantly since the IPO and is subject to material
fluctuations in the future in response to announcements concerning the
Company or its competitors or customers, quarterly variations in operating
results, announcements of technological innovations, the introduction of new
products or changes in product pricing policies by the Company or its
competitors, proprietary rights or other litigation, changes in analysts'
earnings estimates, general conditions in the semiconductor industry,
developments in the financial markets and other factors. In addition, the
stock market has, from time to time, experienced extreme price and volume
fluctuations that have particularly affected the market prices for technology
companies and which have been unrelated to the operating performance of the
affected companies. Broad market fluctuations of this type may adversely
affect the future market price of the Common Stock.
14
<PAGE>
PART II. OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits
10.33 Sub-Sublease dated April 1, 1997 between Integrated
Silicon Solution, Inc. and Zoran Corporation.
11.1 Statement re: Computation of Net Income Per Share
27 Financial Data Schedule
(b) Reports on Form 8-K
The Company filed one report on Form 8-K during the three
months ended March 31, 1997. The report was filed on
January 10, 1997 and reported, under Item 2, the
acquisition of CompCore. No financial statements were
filed as a part of the report.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
ZORAN CORPORATION
Date: May 12, 1997 /s/ Levy Gerzberg
----------------------------
Levy Gerzberg
President
Chief Executive Officer
Date: May 12, 1997 /s/ Ami Kraft
----------------------------
Ami Kraft
Vice President, Finance
Chief Financial Officer
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SUB-SUBLEASE
This Sub-Sublease (the "Sublease") dated, for reference purposes only, as
of April 1, 1997, is by and between INTEGRATED SILICON SOLUTION, INC., a
Delaware corporation ("Sublandlord") and ZORAN CORPORATION, a Delaware
corporation ("Subtenant").
RECITALS:
A. Sobrato Interests II, a California general partnership, as landlord
("Sobrato"), has leased to Amdahl Corporation, a Delaware corporation, as tenant
("Amdahl"), certain premises (the "Premises") consisting of the real property
described on "Exhibit A" of ANNEX 1 attached hereto and made a part hereof, and
the improvements located on such real property, including that approximately
93,600 square foot building (the "Building") commonly known as 2231 Lawson Lane,
Santa Clara, California, pursuant to that certain lease dated October 30, 1986
(the "Sobrato Lease"), by and between Sobrato and Amdahl, a copy of which is
attached hereto as "Exhibit B" to ANNEX 1.
B. Amdahl has subleased the Premises to Sublandlord pursuant to that
certain sublease by and between Amdahl and Sublandlord, which became effective
on September 13, 1996 (the "Amdahl Sublease"). A copy of the Amdahl Sublease is
attached hereto as ANNEX 1 and made a part hereof. The Sobrato Lease and the
Amdahl Sublease are sometimes hereinafter referred to collectively as the
"Master Leases."
C. Sublandlord desires to sublease to Subtenant a portion of the Premises
(the "Subleased Premises"), as more particularly described on ANNEX 2 attached
hereto and made a part hereof, and Subtenant desires to sublease the Premises
upon the terms and conditions contained herein.
D. Sublandlord and Subtenant enter into this Sublease, subject to the
prior written consent of both Sobrato and Amdahl.
NOW, THEREFORE, in consideration of the covenants contained herein and for
other good and valuable consideration, the undersigned parties hereby agree as
follows:
1. SUBLEASED PREMISES. Sublandlord hereby subleases the Subleased
Premises to Subtenant, and Subtenant hereby subleases the Subleased Premises
from Sublandlord, on the terms and conditions set forth herein.
2. TERM; CONDITIONAL RIGHT TO EXTEND TERM.
2.1 TERM. Subject to Section 15 hereof, the term ("Term") of this
Sublease shall commence on April 1, 1997 (the "Commencement Date"), and shall,
subject to extension or earlier termination as provided herein, terminate on the
earlier to occur of (i) any termination of either of the
<PAGE>
Master Leases, or (ii) March 31, 2000 ("Expiration Date"). If Sublandlord is
unable to deliver possession of the Subleased Premises on or before May 1, 1997,
then Sublandlord shall not be liable for any damage caused thereby, nor shall
this Sublease be void or voidable, nor shall the term of this Sublease be
extended by such delay, but, Subtenant shall not be liable for rent until such
time as Sublandlord delivers possession of the Subleased Premises to Subtenant.
2.2 CONDITIONAL RIGHT TO EXTEND TERM. Subtenant may, subject to
Sublandlord's written approval, extend the Term of this Sublease for an
additional term of one (1) year to and including March 31, 2001 (the "Term
Extension"). Subtenant must deliver a written request for approval of the Term
Extension to Sublandlord by United States Certified Mail, return receipt
requested, no earlier than June 30, 1999, and no later than July 31, 1999;
Subtenant's failure to deliver such written request to Sublandlord within the
foregoing time period shall constitute Subtenant's election not to seek the Term
Extension, and shall cause Subtenant's rights under this Section 2.2 with
respect to the Term Extension to terminate automatically and be of no further
force or effect. If Subtenant has timely delivered its written request for the
Term Extension to Sublandlord, then Sublandlord shall notify Subtenant in
writing on or before September 30, 1999, of its approval or disapproval of such
request; provided, however that (i) Sublandlord's failure to deliver its written
approval or disapproval of such request on or before September 30, 1999, shall
constitute Sublandlord's disapproval of such request, and (ii) Sublandlord will
not disapprove of Subtenant's request for the Term Extension and then sublease
the Subleased Premises to a third party for occupancy during the Term Extension.
If Sublandlord issues its written approval of the Term Extension, then the Term
of this Sublease shall be extended to March 31, 2001, and all other terms and
conditions of this Sublease shall apply during the Term Extension, except that
the monthly Base Rent and Operating Expense Reimbursement (as such terms are
defined in Section 5 hereof) during the Term Extension shall be increased to
$29,760 and $15,840, respectively. Notwithstanding anything to the contrary in
this Section 2.2, Subtenant may not request Sublandlord's approval of the Term
Extension, and Sublandlord shall have no obligation to grant such request,
during any time that Subtenant is in default under this Sublease or would be in
default under this Sublease but for the pendency of any grace or cure period
under this Sublease.
3. USE. Subtenant shall use the Subleased Premises only for general
office use, developing, assembling, operating and selling computers and computer
parts, accessories, manuals and software and ancillary uses, and for no other
purpose or business without the prior written consent of Sublandlord. In no
event shall the Subleased Premises be used for a purpose or use prohibited by
the Master Leases.
4. COMMON AREAS.
4.1 SUBTENANT'S RIGHTS. The areas located outside the Building,
including the sidewalks, driveways, and parking areas shall constitute the
"Common Areas." All areas within the Premises other than the Subleased Premises
and the Common Areas are reserved for the exclusive use of Sublandlord;
provided, however, that Subtenant may use the area identified on ANNEX 2 as the
"Rear Elevator and Lobby Area" on the first floor of the Building and the
"Second Floor Corridor
2
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Area" for handicap access and freight movement purposes only, subject to key
card entry or such other access rules, regulations and security requirements as
the parties shall reasonably cooperate to establish. Subject to the terms and
conditions set forth herein, Subtenant and its employees, contractors and
invitees shall have the non-exclusive right, in common with Sublandlord and
Sublandlord's employees, contractors and invitees, to use the Common Areas as
they exist from time to time, subject to any rights, powers or privileges
reserved by Sublandlord under the terms of this Sublease. Sublandlord makes no
warranty express or implied with respect to the condition of the Common Areas or
any equipment located therein. Subtenant shall not store any property,
temporarily or permanently, in the Common Areas.
4.2 RULES AND REGULATIONS. Sublandlord shall have the exclusive
control and management of the Common Areas and may from time to time promulgate
reasonable rules and regulations for the care and orderly management of the
Common Areas and the safety of Sublandlord, Subtenant and their employees,
agents and invitees. Such rules and regulations shall be binding upon Subtenant
upon delivery of a copy thereof to Subtenant, and Subtenant agrees to abide by
such rules and regulations and to cause its employees, contractors and invitees
to abide by such rules and regulations.
4.3 CHANGES. Sublandlord shall have the right from time to time,
without the same constituting an actual or constructive eviction, to: (i) make
changes to the Common Areas and rear lobby area, including, without limitation,
changes in the location, size, shape and number of driveways, parking areas,
parking spaces, landscaped areas, loading and freight areas, walkways and
utility raceways; (ii) close temporarily any of the Common Areas or rear lobby
area for maintenance purposes, provided reasonable access to the Subleased
Premises remains available; (iii) add improvements to the Common Areas or rear
lobby area; and (iv) to do or perform such other acts and make such other
changes to the Common Areas and Building as Sublandlord, in its reasonable
discretion, deems appropriate. Sublandlord shall not exercise its rights to
control the Common Areas in a manner that would materially impair Subtenant's
use of the Subleased Premises and Subtenant's parking rights (or which would
reduce the number of Subtenant's parking spaces), without first obtaining
Subtenant's approval. In exercising its rights to control the Common Areas,
Sublandlord shall make a reasonable effort to minimize any disruption to
Subtenant's use of the Subleased Premises and Common Areas.
4.4 PARKING. Subtenant and its employees, contractors and invitees
shall be entitled to the non-exclusive use, in common with Sublandlord and
Sublandlord's employees, contractors and invitees, of ninety-six (96) parking
spaces only on those portions of the Common Areas designated from time to time
by Sublandlord for parking. Subtenant and its employees, contractors and
invitees shall not use more parking spaces than the foregoing number and no
overnight parking shall be permitted, except to accommodate out-of-town travel
(or overnight work requirements) by Subtenant's employees; provided, however,
that such overnight employee parking shall not exceed seven (7) consecutive days
in length without the prior approval of Sublandlord. Said parking spaces may be
used for parking by vehicles no larger than full-size passenger automobiles,
vans, sport utility vehicles and pick-up trucks. If Subtenant permits or allows
any
3
<PAGE>
vehicles to be parked on the Premises in violation of this Sublease, then
Sublandlord may, in addition to Sublandlord's other rights and remedies, remove
or tow away the vehicles involved and charge the cost thereof to Subtenant,
which cost shall be immediately payable upon demand by Sublandlord.
5. SERVICES.
5.1 MAINTENANCE AND OTHER SERVICES. Sublandlord shall maintain or
cause to be maintained (i) the Rear Elevator and Lobby Area (including the
elevator) and the Common Areas of the Premises, (ii) the roof membrane of the
Building, and (iii) the equipment and facilities by which utilities and services
are provided, including the mechanical, electrical and plumbing systems serving
the Subleased Premises, in reasonably good order and condition, except for
damage occasioned by the acts (excluding ordinary use and wear and tear) or
omissions of Subtenant, its employees, agents, contractors or invitees, which
damage shall promptly be repaired by Subtenant at Subtenant's expense.
Sublandlord shall provide or cause to be provided rubbish removal, cleaning and
janitorial services to the Subleased Premises at the levels generally provided
by landlords of comparable industrial/office buildings located in the vicinity
of the Premises. There shall be no abatement of Rent (as defined in Section 6
hereof) or liability of Sublandlord on account of the following: (i) the
installation, use or interruption of the Subleased Premises or Common Areas in
connection with the furnishing of any of the foregoing services; (ii) failure to
furnish or delay in furnishing any such services when such failure or delay is
caused by accident or any condition beyond the actual or reasonable control of
Sublandlord or by the making of necessary repairs or improvements to the
Premises or to the Building; or (iii) the limitation, curtailment, rationing or
restrictions requested by any governmental authority on use of water,
electricity, gas or any other form of energy serving the Subleased Premises or
the Building. Notwithstanding anything to the contrary contained herein or
elsewhere in this Sublease, (i) Sublandlord shall not be responsible for repairs
required by an accident, fire or other peril, or for damage caused to any part
of the Premises, including the Subleased Premises, by any wrongful act,
(excluding ordinary use and wear and tear), negligence or omission of Subtenant
or any of Subtenant's employees, agents, contractors or invitees, and (ii)
Sublandlord shall have no obligation to maintain any portion of the Premises
other than those set forth in this Section 5. Sublandlord's maintenance
obligations under this Section 5 are not intended to and shall not limit or
affect any maintenance, repair or restoration obligations of Sobrato under the
Sobrato Lease or Amdahl under the Amdahl Sublease. Notwithstanding anything to
the contrary contained in this Sublease, during the Term, (i) Subtenant, at
Subtenant's expense, but under the direction of Sublandlord, shall repair and
maintain any damage to the floor coverings and ceiling (ceiling tiles and grid)
in the Subleased Premises, the Tenant Improvements, any alterations to the
Subleased Premises made by Subtenant, Subtenant's trade fixtures and equipment,
and all outlets and fire extinguishers located in the Subleased Premises, and
shall otherwise keep the Subleased Premises, in good, clean, safe and orderly
condition, and (ii) Subtenant shall within ten (10) days after written request
by Sublandlord (which request shall not be made by Sublandlord more often than
monthly), reimburse Sublandlord for the cost of all janitorial and other
consumable supplies furnished by Sublandlord to the Subleased Premises,
including, without limitation, paper towels, soap, other standard bathroom
supplies and light bulbs. Subtenant hereby waives the benefits of any statute
which would afford Subtenant the
4
<PAGE>
right to make repairs at Sublandlord's expense or to terminate this Sublease
because of Sublandlord's failure to keep any portion of the Premises, including
the Common Areas, the roof membrane of the Building, or the mechanical,
electrical, plumbing and other utility systems serving the Subleased Premises,
in good order, condition and repair.
5.1.1 Except as otherwise set forth in Section 5.1, the cost
of all normal and routine maintenance and other services performed by
Sublandlord under this Section 5 shall be paid by Sublandlord. The cost of any
other maintenance performed by Sublandlord under this Section 5 ("Special
Maintenance Costs"), including, without limitation, capital repairs or
improvements made to the Premises by Sublandlord, shall be allocated between the
parties as follows: (i) Subtenant shall pay the portion of any Special
Maintenance Costs equal to Subtenant's Share (as defined below), which amount
shall be paid by Subtenant as additional rent when the next installment of Base
Rent is due hereunder; and (ii) the remaining portion of the Special Maintenance
Costs shall be paid by Sublandlord. As used herein, "Subtenant's Share" shall
be calculated by multiplying each of the Special Maintenance Costs by a
fraction, the numerator of which is the number of months remaining in the Term
at the time such Special Maintenance Costs are incurred and the denominator of
which shall be the number of months in the useful life of improvement in
question, as reasonably determined by Sublandlord; provided, however, that with
respect to any Special Maintenance Costs incurred by Sublandlord which benefit
the Building as a whole, as reasonably determined by Sublandlord, Subtenant's
Share of such Special Maintenance Costs shall be reduced by multiplying only
twenty-six percent (26%) of such Special Maintenance Costs by the foregoing
fraction. Notwithstanding the foregoing, Special Maintenance Costs shall not
include the cost of any enhancements or upgrades to the Premises made by
Sublandlord which are not otherwise required to be made by Sublandlord under
this Section 5, unless the cost of any such enhancements or upgrades are
required to meet governmental regulations or are intended to reduce the
operating costs of the Premises or to improve the efficiency of the Premises.
5.2 OPERATING EXPENSES. Notwithstanding anything to the contrary set
forth in the Master Leases (including, without limitation, Sections 6, 13 and 18
of the Sobrato Lease), Subtenant shall have no obligation to reimburse
Sublandlord for any portion of the insurance charges, real estate taxes, or
utility charges applicable to the Subleased Premises payable by Sublandlord
under the Amdahl Sublease; provided, however, that (i) Subtenant shall reimburse
Sublandlord for charges incurred by Sublandlord resulting from the excessive use
by Subtenant of any utility service supplied to the Subleased Premises as
reasonably determined by Sublandlord, and (ii) Subtenant, not Sublandlord, shall
be responsible for (a) the prompt and timely payment of any personal property
taxes or assessments levied against Subtenant's personal property, improvements
(including, without limitation, the Tenant Improvements as defined in Section
20), alterations or trade fixtures located within the Subleased Premises, (b)
any telephone service provided to the Subleased Premises, and (c) any permit,
license or other governmental fees or charges arising out of Subtenant's
specific use and operation of the Subleased Premises.
5
<PAGE>
6. RENT.
6.1 BASE RENT. Beginning on April 1, 1997 (the "Rent Commencement
Date") and continuing throughout the Term, Subtenant shall pay the following
amounts to Sublandlord as monthly rent ("Base Rent") for the Subleased Premises:
Months Amount Per Month
------ ----------------
4/1/1997-3/31/1998 $27,600
4/1/1998-3/31/1999 $28,320
4/1/1999-3/31/2000 $29,040
6.2 OPERATING EXPENSE REIMBURSEMENT. As reimbursement for the
services that Sublandlord is obligated to provide pursuant to Section 5 hereof,
beginning on the Rent Commencement Date and continuing throughout the Term,
Subtenant shall pay the following amounts (the "Operating Expense
Reimbursement") to Sublandlord as additional monthly rent for the Subleased
Premises:
Months Amount Per Month
------ ----------------
4/1/1997-3/31/1998 $14,400
4/1/1998-3/31/1999 $14,880
4/1/1999-3/31/2000 $15,360
6.3 MANNER OF PAYMENT. The Base Rent, Operating Expense
Reimbursement and any other amounts Subtenant is required to pay hereunder in
monthly installments (collectively, the "Rent") shall be paid by Subtenant to
Sublandlord on or before the first (1st) day of each month. Rent for any period
during the Term hereof which is for less than one month of the Term shall be a
pro rata portion of the monthly installment based on a thirty (30) day month.
Rent shall be payable without notice or demand and without any deduction,
offset, or abatement, in lawful money of the United States of America. Rent
shall be paid directly to Sublandlord at the Premises, Attention: U.S.
Controller, or such other address as may be designated in writing by
Sublandlord. Upon execution hereof by Subtenant, Subtenant shall pay to
Sublandlord the sum of Forty-Two Thousand Dollars ($42,000), which shall
constitute the Base Rent and Operating Expense Reimbursement for April 1997. and
any rent credit determined pursuant to the next sentence shall be applied to
Base Rent for May 1997. Notwithstanding anything to the contrary contained in
this Sublease, the Rent shall be deemed due and payable on the Rent Commencement
Date; provided, however, that the Rent Commencement Date shall be delayed by one
(1) day for each day that the issuance of either Sobrato's or Amdahl's written
consent to this Sublease is delayed beyond April 6, 1997.
7. SECURITY DEPOSIT. Upon execution of this Sublease by Subtenant,
Subtenant shall deposit the sum of Forty-Two Thousand Dollars ($42,000) with
Sublandlord, which shall be held as security for the performance by Subtenant of
the terms and conditions of this Sublease. If Subtenant
6
<PAGE>
fails to pay rent or other charges due hereunder, or otherwise defaults with
respect to any provision of this Sublease, then, without prejudice to any other
rights or remedies of Sublandlord, Sublandlord may draw upon all or any portion
of the Security Deposit for the payment of any rent or other charge in default
or for the payment of any other sum to which Sublandlord may become obligated by
reason of Subtenant's default, or to compensate Sublandlord for any loss or
damage which Sublandlord may suffer thereby. If Sublandlord so uses or applies
all or any portion of the Security Deposit, Subtenant shall, within five (5)
days after written demand therefor, remit to Sublandlord a sufficient amount in
cash to restore the funds withdrawn by Sublandlord for the foregoing purposes,
and Subtenant's failure to do so shall constitute and event of default under
this Sublease. Upon termination of this Sublease, if Subtenant is not then in
default, Sublandlord shall return to Subtenant so much of the Security Deposit
as has not been applied by Sublandlord pursuant to this Section 7, or which is
not otherwise required to cure Subtenant's defaults, without payment of interest
and in accordance with the terms of California Civil Code Section 1950.7 or any
successor statute thereto.
8. NO ASSIGNMENT OR SUBLEASING. Except as otherwise set forth in this
Section 8, and notwithstanding anything to contrary set forth in the Master
Leases, Subtenant shall not assign or sublease all or any portion of the
Subleased Premises under any circumstances. Without limiting the generality of
the foregoing, Subtenant shall not assign, sublet, mortgage, pledge,
hypothecate, encumber or in any other manner transfer any interest Subtenant may
have in the Sublease or in the Subleased Premises and any attempt by Subtenant
to do so shall be null and void and shall not relieve Subtenant of its
obligations under this Sublease. The foregoing notwithstanding, (i) Subtenant
has informed Sublandlord that it desires to share office space within the
Subleased Premises with Oren Corporation, an affiliated company under common
control with Subtenant, and (ii) without in any way limiting Subtenant's
obligations or Sublandlord's rights under this Sublease, and subject to such
obligations and rights, Subtenant may share not more than One Thousand (1,000)
square feet of office space within the Subleased Premises with Oren Corporation,
provided that Oren Corporation has agreed in writing to assume, perform and be
bound by all of the obligations and covenants of Subtenant under this Sublease.
9. CONDITION OF SUBLEASED PREMISES. Sublandlord shall at its expense
make any repairs necessary to bring the mechanical, plumbing and electrical
systems serving the Subleased Premises to good working order prior to the
Commencement Date. Notwithstanding the foregoing, by taking possession of the
Subleased Premises, Subtenant conclusively shall be deemed to have accepted the
Subleased Premises in their "AS-IS", then-existing condition, without any
warranty whatsoever by Sublandlord with respect thereto. Subtenant hereby
represents to Sublandlord that (i) Subtenant has fully inspected the Subleased
Premises and the physical condition thereof, including accessibility and
location of utilities, improvements, existence of hazardous materials
(including, without limitation, asbestos, asbestos containing materials,
polychlorintated biphenyls (PCBs)) and earthquake preparedness, which in
Subtenant's judgment affect or influence Subtenant's use of the Subleased
Premises and Common Areas and Subtenant's willingness to enter into this
Sublease, (ii) Subtenant is relying on its inspection in subleasing the
Subleased Premises and (iii) Subtenant has received no representations or
warranties with respect to the physical condition of the Subleased Premises on
which Subtenant has relied in entering into this Sublease.
7
<PAGE>
10. MASTER LEASES.
10.1 COMPLIANCE WITH TERMS OF THE MASTER LEASES. This Sublease is
subject and subordinate to all of the terms and conditions of the Master Leases
and Subtenant shall assume and perform all of the obligations of Sublandlord
under the Master Leases to the extent set forth in this Section 10 and to the
extent such obligations are applicable to the Subleased Premises. In the event
of a conflict between the terms and conditions of the Master Leases and this
Sublease, then, as between Sublandlord and Subtenant, the terms and conditions
of this Sublease shall control. Notwithstanding the foregoing, (i) Subtenant
shall not commit or permit to be committed any act or omission that will violate
any of the provisions of the Master Leases, and (ii) Sublandlord shall perform
all of its obligations as sublessee under the Amdahl Sublease, if and to the
extent that such obligations have not been assumed or are otherwise are required
to be performed by Subtenant under this Sublease.
10.2 INCORPORATION BY REFERENCE. Except as otherwise provided in this
Sublease, the terms and provisions contained in the Amdahl Sublease are
incorporated herein by reference, and are made a part hereof as if set forth at
length; provided, however, that: (i) each reference in such incorporated
sections to "Sublease" and to "Premises" shall be deemed a reference to this
"Sublease" and the "Subleased Premises", respectively, as each is defined
herein; (ii) each reference to "Sublessor" and "Sublessee" shall be deemed a
reference to "Sublandlord" and "Subtenant", respectively; (iii) each reference
to "Master Lease" and "Landlord" shall be deemed a reference to the "Sobrato
Lease" and "Sobrato," respectively; (iv) each reference to "Effective Date"
shall mean the date by which this Sublease has been executed by Sublandlord and
Subtenant; (v) with respect to work, services, repairs, restoration, insurance
or the performance of any other obligation of either Sobrato or Amdahl, the sole
obligation of Sublandlord shall be to request the same in writing from Sobrato
or Amdahl, as applicable, as and when requested to do so by Subtenant and to use
Sublandlord's reasonable efforts (provided Subtenant pays all out-of-pocket,
third party costs incurred by Sublandlord in connection therewith) to obtain
Sobrato's or Amdahl's performance; (vi) with respect to any obligation of
Subtenant to be performed under this Sublease, wherever the Amdahl Sublease
grants to Sublandlord a specified number of days to perform its obligations
under the Amdahl Sublease, except as otherwise provided herein, Subtenant shall
have three (3) fewer days to perform the obligation, including, without
limitation, curing any defaults; (vii) Sublandlord shall have no liability to
Subtenant with respect to (a) representations and warranties made by either
Amdahl under the Amdahl Sublease or Sobrato under the Sobrato Lease, (b) any
indemnification obligations of either Amdahl under the Amdahl Sublease or
Sobrato under the Sobrato Lease, or other obligations or liabilities of either
Amdahl under the Amdahl Sublease or Sobrato under the Sobrato Lease with respect
to compliance with laws, condition of the Premises or Hazardous Materials, and
(c) Amdahl's or Sobrato's obligations under the Amdahl Sublease or the Sobrato
Lease, respectively to repair, maintain, restore, or insure all or any portion
of the Premises, regardless of whether the incorporation of one or more
provisions of the Amdahl Sublease or of the Sobrato Lease might otherwise
operate to make Sublandlord liable therefor; (viii) with respect to any approval
or consent required to be obtained from the "Landlord" under the Sobrato Lease
or the "Sublessor" under the Amdahl Sublease, such approval or consent must be
obtained from each of
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Amdahl, Sobrato and Sublandlord, and the approval of Sublandlord may be withheld
if either Sobrato's or Amdahl's approval or consent is not obtained; (ix)
Subtenant shall have no obligation to reimburse Sublandlord for any insurance
charges, real estate taxes or utilities payable by Sublandlord to Amdahl under
the Amdahl Sublease, except to the extent set forth in Section 5 hereof; (x) the
following provisions of the Amdahl Sublease are expressly NOT incorporated
herein by reference: Article I and the following provisions of Article II: the
recitals; Sections 1 (in its entirety), 2.1, 2.2 (the last sentence of this
Section only), 3.1 (the second, third, fourth, fifth and sixth sentences of this
Section only), 3.3, 4, 5.1, 5.2, 6, 7, 8 (the fifth, sixth, seventh, eighth and
ninth sentences of this Section only), 9 (in its entirety), 10 (in its
entirety), 11 (in its entirety), 12.2, 16, 17.1, 17.2, 17.3, 17.6, 17.9, 17.10;
Schedule 1; and Exhibits C and D. Additionally, notwithstanding the foregoing,
with respect to (i) Section 14 only of the Amdahl Sublease as incorporated
herein, the term "Landlord" shall mean both Sobrato and Amdahl, and the term
"Master Lease" shall mean both of the Master Leases; (ii) Section 8 of the
Amdahl Sublease as incorporated herein, the threshold amount of any
non-structural "Alterations" to the Subleased Premises that may be made by
Subtenant without the prior written consent of Sublandlord is hereby reduced
from Fifteen Thousand Dollars ($15,000) to Five Thousand Dollars ($5,000); (iii)
Section 12.1 of the Amdahl Sublease as incorporated herein, the term
"Sublessor's Broker" shall mean MacMillan, Moore & Buchanan; (iv) all references
in the Amdahl Sublease to "Exhibit D" in connection with use of "Permitted
Hazardous Materials" shall mean and refer to ANNEX 3 attached hereto and made a
part hereof; and (v) the provisions of Section 17.11 of the Amdahl Sublease as
incorporated herein shall not apply to Section 2.2 of this Sublease: and (vi)
Section 23 of the Sobrato Lease shall be deemed incorporated herein as an
agreement between Sublandlord and Subtenant consistent with the incorporation by
reference provisions of this Section 10.2.
10.3 TERMINATION OF MASTER LEASES. If either of the Master Leases
terminates, this Sublease shall thereupon terminate; further, if such
termination was not due to a default by either party under this Sublease or the
Master Leases, then the parties shall be relieved of any further liability or
obligation under this Sublease, except for obligations which are stated herein
to survive the termination of this Sublease. Sublandlord in connection with
either of the Master Leases.
11. INSURANCE.
11.1 ADDITIONAL INSUREDS. All insurance policies required to be
carried by Subtenant pursuant to the Master Leases, shall contain a provision
whereby Sublandlord, Amdahl and Sobrato are each named as additional insureds
under such policies.
11.2 INSURANCE PROCEEDS. Whenever provisions in the Master Leases
which have been incorporated into this Sublease limit some obligations of
Sublandlord if either Amdahl or Sobrato would have insurance proceeds available,
the terms "Landlord" as used in the Sobrato Lease and "Sublessor" as used in the
Amdahl Sublease shall be deemed to refer collectively to Amdahl, Sobrato and
Sublandlord, notwithstanding any provision to the contrary in this Sublease.
9
<PAGE>
11.3 WAIVER OF SUBROGATION. The waiver of subrogation provisions set
forth in Section 11.3 of the Amdahl Sublease incorporated herein pursuant to
Section 10 hereof, shall be deemed a four-party agreement binding among and
inuring to the benefit of Sublandlord, Subtenant and, by reason of their
consents hereto, Amdahl and Sobrato.
12. SUBLANDLORD'S REPRESENTATIONS AND WARRANTIES. To the best of
Sublandlord's knowledge, Sublandlord represents and warrants that the Master
Leases are in full force and effect, and there exists under the Master Leases no
default or event of default by either Sobrato, Amdahl or Sublandlord, nor has
there occurred any event which, with the giving of notice or passage of time or
both, could constitute such a default or event of default. Sublandlord further
represents and warrants that the copy of the Sobrato Lease attached hereto as
Exhibit B to ANNEX 1, and the copy of the Amdahl Sublease attached hereto as
Exhibit C to ANNEX 1, are true and complete copies of the such leases and that
there are no addenda, amendments, exhibits or modifications to such leases
except which are attached hereto as Exhibit B and Exhibit C to ANNEX 1,
respectively. As used herein, "the best of Sublandlord's knowledge" shall mean
the actual knowledge of Gary L. Fischer as of the date this Sublease is executed
by Sublandlord, without the obligation to perform any research, investigation,
due diligence or inquiry whatsoever.
13. DEFAULT AND REMEDIES. In addition to any other rights and remedies
Sublandlord may have under this Sublease, should Subtenant be in default of any
of Subtenant's covenants and obligations under this Sublease (including, without
limitation, the payment of rent), then Sublandlord shall have the rights and
remedies exercisable by Amdahl under the Amdahl Sublease, and by Sobrato under
the Sobrato Lease, in the event of such default.
14. QUIET ENJOYMENT. Subtenant shall peacefully have, hold and enjoy the
Subleased Premises, subject to the terms and conditions of this Sublease and the
Master Leases, provided that Subtenant performs all of Subtenant's covenants and
obligations contained herein.
15. CONDITION PRECEDENT. This Sublease is conditioned upon the issuance
of both Amdahl's and Sobrato's written approval of this Sublease on or before
the tenth (10th) calendar day following the date by which this Sublease has been
signed by Sublandlord and Subtenant. If either of the foregoing consents are
not obtained within such ten (10) day period, then at any time thereafter until
such consents are obtained either party hereto may terminate this Sublease by
written notice to the other party, whereupon, Sublandlord shall return the
security deposit and any prepaid Rent (if previously delivered to Sublandlord by
Subtenant) to Subtenant.
16. DAMAGE AND DESTRUCTION. If the Subleased Premises are damaged by any
peril and the Amdahl Sublease is not terminated, then as soon thereafter as is
reasonably practicable, Sublandlord shall furnish Subtenant with a reasonable
estimate as to when the restoration work required to repair the Subleased
Premises may be completed; Sublandlord shall use reasonable efforts to deliver
the estimate to Subtenant within (30) days of the occurrence of the damage.
Subtenant and Sublandlord shall each have the option to terminate this Sublease
in the event that the following occurs, which option may be exercised by
Sublandlord or Subtenant only by delivery to
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<PAGE>
the other party of a written notice of election to terminate within fifteen (15)
days after Subtenant receives from Sublandlord the estimate of the time needed
to complete such restoration: the Subleased Premises are damaged by any peril
and, in the reasonable opinion of Sublandlord's architect or construction
consultant, the restoration of the Subleased Premises cannot be substantially
completed within one hundred eighty (180) days after the date of such damage.
If this Sublease is not terminated pursuant to the foregoing provisions, then
this Sublease shall remain in full force and effect; provided, however, that the
Rent due hereunder shall be abated if and to the extent, but not in excess of
the amount, that the "Rent" due under the Amdahl Sublease with respect to the
Subleased Premises is abated pursuant to the terms thereof.
17. NOTICES. All communications, notices and demands of any kind which
either party may be required or desires to give to or serve upon the other party
shall be in writing and personally delivered or sent by prepaid, U.S. registered
or certified mail, with return receipt requested. All such notices shall be
addressed to the parties as follows:
If to Sublandlord:
At the Premises
ATTN: U.S. Controller
If to Subtenant:
Prior to the Commencement Date:
2041 Mission College Boulevard
Suite 255
Santa Clara, California 95054
ATTN: Paul Goldberg
As of the Commencement Date:
At the Subleased Premises
ATTN: Paul Goldberg
Any notice sent by U.S. certified or registered mail as described above shall be
deemed effective within three (3) days after the posted date of mailing and any
notice given by personal delivery shall be deemed effective upon receipt or
refusal to accept delivery. Either party may change its address by notifying
the other party of a changed address in accordance with the provisions of this
Section 16.
18. SUCCESSORS AND ASSIGNS. This Sublease shall be binding upon and,
except to the extent limited hereinabove, shall inure to the benefit of the
parties hereto and their respective successors and assigns.
19. SURRENDER. Notwithstanding anything to the contrary in this Sublease,
the Amdahl Sublease or the Sobrato Lease, Subtenant shall surrender possession
of the Subleased Premises in the
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<PAGE>
condition existing at the Commencement Date, except for the following: (i)
ordinary wear and tear; (ii) acts of God, casualties, and condemnation; (iii)
Hazardous Materials not placed on or about the Premises by Subtenant, its
agents, employees, contractors or invitees; (iv) any Alterations (other than the
Tenant Improvements) which Sublandlord states in writing may be surrendered at
the termination of this Sublease and (v) the Tenant Improvements (subject to
Section 20.1 hereof).
20. LIMITATION ON SUBTENANT'S RECOURSE. Notwithstanding any other term or
provision of this Sublease, (i) the liability of Sublandlord for its obligations
under this Sublease is limited solely and exclusively to Sublandlord's interest
in the Premises, and (ii) in no event shall personal liability at any time be
asserted or enforceable against any other assets of Sublandlord or against
Sublandlord's stockholders, officers, directors, principals, representatives or
partners on account of any of Sublandlord's obligations or actions under this
Sublease.
21. TENANT IMPROVEMENTS. Provided that Subtenant obtains the prior
written consent of both Amdahl and Sobrato, Subtenant may construct certain
improvements ("Tenant Improvements") to the Subleased Premises which are
described on that certain architectural drawing dated March 10, 1997, prepared
by Pedley & Joy Architectural and described as Sheet A-2 (the "Drawing"). The
final plans and specifications for the Tenant Improvements are subject to the
prior approval of Sublandlord, which approval will not be unreasonably withheld
or delayed provided that such final plans and drawings are consistent with and
conform to the Drawing and represent the logical and reasonable evolution and
development of the Drawing. The Tenant Improvements shall be constructed at
Subtenant's sole cost and expense, in accordance with approved final plans and
drawings, and in a good, safe and workmanlike manner using new materials and
equipment of good quality, and in compliance with all applicable laws, rules,
regulations and the provisions of the Master Leases. Subtenant shall coordinate
in advance all of its construction activities with Sublandlord and shall not
allow any of such activities unreasonably to disturb or interfere with
Sublandlord's use of and operations in the Premises. Upon final payment by
Subtenant for any work performed, materials furnished or obligations incurred by
Subtenant in regard to the Tenant Improvements (and any subsequent alterations,
additions or improvements made to the Subleased Premises by Subtenant),
Subtenant shall utilize reasonable and good faith efforts to obtain from each
contractor and supplier an Unconditional Waiver and Release Upon Final Payment
(California Civil Code Section 3262(d)(4)). The foregoing approval by
Sublandlord does not constitute consent to any additional alterations or
improvements to the Subleased Premises by Subtenant, and Sublandlord reserves
the right to approve or disapprove of any such additional alterations or
improvements to the Subleased Premises by Subtenant as provided herein.
21.1 RESTORATION. At any time within one (1) year after the date of
the termination of this Sublease, Sublandlord may remove all or any portion of
the Tenant Improvements and restore the Subleased Premises to their original
condition, and Subtenant shall be responsible for fifty percent (50%) of the
actual cost of any such removal and restoration work (the "Restoration Fee");
provided, however, that the Restoration Fee shall not exceed Twenty-Five
Thousand Dollars ($25,000). Subtenant shall pay the Restoration Fee to
Sublandlord within ten (10) days after Subtenant's receipt of written request by
Sublandlord, together with the backup documentation
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<PAGE>
reasonably supporting the actual costs incurred by Sublandlord. This Section
20.1 and the attorneys fee provisions incorporated by reference into this
Sublease pursuant to Section 10 hereof shall survive the termination of this
Sublease.
22. BROKERAGE COMMISSIONS. Subtenant warrants for the benefit of
Sublandlord that its sole contact with Sublessor or the Premises in connection
with this transaction has been directly with Sublessor and Sublessor's Broker.
Subtenant further warrants for the benefit of Sublandlord that no other broker
or finder can properly claim a right to a commission or a finder's fee based
upon contacts between the claimant and Subtenant with respect to the other party
or the Subleased Premises. Subtenant shall indemnify, defend by counsel
acceptable to Sublandlord and hold Sublandlord harmless from and against any
loss, cost or expense, including, but not limited to, attorneys' fees and court
costs, resulting from any claim through Subtenant for a fee or commission by any
broker or finder, other than any claims by Subtenant's Broker, in connection
with the Subleased Premises and this Sublease.
23. ENTIRE AGREEMENT. This Sublease together with the Master Leases
contains the complete agreement of the parties hereto with respect to the
subject matter hereof, and shall supersede all other agreements, oral or in
writing, between the parties respecting said subject matter. This Sublease may
be amended only by written instrument executed by Sublandlord, Subtenant, Amdahl
and Sobrato.
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<PAGE>
IN WITNESS WHEREOF, Sublandlord and Subtenant have executed this Sublease
as of the date first set forth above.
SUBLANDLORD: INTEGRATED SILICON SOLUTION, INC.,
a Delaware corporation
By: [ILLEGIBLE]
------------------------------
Its: Exec V.P.
------------------------------
SUBTENANT: ZORAN CORPORATION,
a Delaware corporation
By: [ILLEGIBLE]
------------------------------
Its: Vice President, Systems Solutions
------------------------------
14
<PAGE>
ANNEX "1"
Amdahl Sublease
<PAGE>
SUBLEASE AGREEMENT
I. DEFINED TERMS
Base Rent:
Months Monthly
Base Rent
1-12
13-24
25-36
37-48
49-60
61-72
73-84
85-96
97-108
109-120
121-123
Broker:
Sublessor's
Broker: Grubb & Ellis Company Commercial
Real Estate Services (Bruce M. Horton)
and Colliers Parrish International
Sublessee's
Broker: MacMillan, Moore & Buchanan (Dave Gray)
Commencement
Date: December 1, 1996
Effective
Date: September 13, 1996.
Expiration
Date: February 28, 2007.
1.
<PAGE>
Landlord: Sobrato Interests II, a California general partnership
Master
Lease: That certain Lease dated October 30, 1986 between Landlord, as
landlord, and Sublessor, as tenant.
Permitted
Uses: General office use, developing, assembling, operating and
selling computers and computer parts, accessories, manuals and
software and ancillary uses.
Premises: That certain real property described in EXHIBIT A attached
hereto, together with the approximately 93,600 square foot
building (the "Building") thereon known as 2231 Lawson Lane in
Santa Clara, California
Security
Deposit: $135,720
Sublessee: INTEGRATED SILICON SOLUTION, INC., a Delaware corporation
Sublessee's
Address: prior to the Commencement Date:
680 Almanor Avenue
Sunnyvale, California 94086
Attn: Mr. Gary Fischer
Executive Vice President and
Chief Financial Officer
Phone: (408) 774-4612
Fax: (408) 749-1977
as of the Commencement Date:
2231 Lawson Lane
Santa Clara, California 95054-3311
Attn: Mr. Gary L. Fischer
Executive Vice President and Chief
Financial Officer
Phone: (408) 774-4612
Fax: (408) 749-1977
2.
<PAGE>
Sublessor: AMDAHL CORPORATION, a Delaware corporation
Sublessor's
Address: 1250 East Arques Avenue
Mail Stop 110
P.O. Box 3470
Sunnyvale, California 94088-3470
Attn: Director, Corporate Real Estate
Phone: (408) 746-6639
Fax: (408) 746-6100
Term: One Hundred Twenty-Three (123) Months
Exhibits: EXHIBIT A - Premises Legal Description
EXHIBIT B - Master Lease
EXHIBIT C - Work Letter
EXHIBIT D - Permitted Hazardous Materials
Schedules: SCHEDULE 1 - Electrical Equipment
II.
THIS SUBLEASE AGREEMENT ("Sublease") is entered as of the Effective
Date by and between Sublessor and Sublessee.
THE PARTIES ENTER this Sublease on the basis of the following facts,
understandings and intentions:
A. Sublessor is presently a lessee of the Premises pursuant to the
Master Lease by and between Landlord and Sublessor. A copy of the Master Lease,
together with all exhibits and addenda thereto is attached hereto as EXHIBIT B.
B. Sublessor desires to sublease the Premises to Sublessee and
Sublessee desires to sublease the Premises from Sublessor on all of the terms,
covenants and conditions hereinafter set forth.
C. All of the terms and definitions in the Defined Terms section are
incorporated herein by this reference.
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants and promises
of the parties, the parties hereto agree as follows:
3.
<PAGE>
1. SUBLEASE OF PREMISES.
1.1 SUBLEASE. As of the Commencement Date, Sublessor shall
sublease to Sublessee, and Sublessee shall sublease from Sublessor, the Premises
for the Term upon all of the terms, covenants and conditions herein contained.
In addition, Sublessor shall lease to Sublessee, and Sublessee shall lease from
Sublessor, any and all permanent improvements ("Improvements") on the Premises
constructed and/or owned by Sublessor, along with any and all mechanical and
electrical equipment (the "Electrical Equipment") located in the Premises as of
the Commencement Date of the Lease (which Electrical Equipment shall, in any
event, include those items listed on SCHEDULE 1 attached hereto) upon all of the
terms, covenants and conditions herein contained. As used herein, "Premises"
shall include the Premises, Improvements and Equipment.
1.2 DELAY IN DELIVERY OF PREMISES. If Sublessor, for any
reason whatsoever, cannot deliver possession of the Premises to Sublessee on
or before the Commencement Date, this Sublease shall not be void or voidable
nor shall Sublessor be liable to Sublessee for any resulting loss or damage.
However, Sublessee shall not be liable for any Rent and the Commencement Date
shall not occur until the Premises are Substantially Complete (as defined in
the Work Letter), except that if Sublessor's failure to Substantially
Complete the Premises by the Commencement Date is attributable to any action
or inaction by Sublessee (including without limitation any Sublessee Delay
described in the Work Letter attached this Sublease), then the Commencement
Date shall not be advanced to the date on which possession of the Premises is
tendered to Sublessee, and Sublessor shall be entitled to full performance by
Sublessee (including the payment of Rent) from the date the Premises would
have been Substantially Complete but for such Sublessee Delays.
Notwithstanding the foregoing, in the event that (a) Sublessee is not then in
default under the terms of this Sublease beyond any applicable cure period,
(b) the Premises are not Substantially Complete on or before January 31,
1997, as such date may be extended for events of "Sublessee Delay" (as
defined in the Work Letter) (the "Drop Dead Date"), then Sublessee, as its
sole and exclusive remedy (except as provided for below), shall be entitled
to terminate this Sublease by providing Sublessor with written notice thereof
no later than February 15, 1997; provided that such written notice shall be
null and void, and this Sublease shall continue to be in full force and
effect, if Sublessor Substantially Completes the Premises within ten (10)
business days of the date Sublessor receives such written notice from
Sublessee. If Sublessee shall terminate this Sublease pursuant to this
Section 1.2 then Sublessor shall return the Security Deposit, any prepaid
Rent and any other sums previously paid by Sublessee to Sublessor in
connection with this Sublease, to Sublessee within twenty (20) days thereof
and any and all
4.
<PAGE>
obligations, rights and liabilities of the parties hereto shall terminate and be
forever null and void. Notwithstanding the foregoing, if the Premises are not
Substantially Complete on the Drop Dead Date and Sublessee does not terminate
this Sublease as provided for above, then interest will accrue from the date
such amounts were delivered to Sublessor to the date the Premises are
Substantially Complete at a rate equal to eight percent (8%) per annum on an
amount equal to the sum of the first month's Base Rent, the Security Deposit and
the Cash Payment (as defined in Section 5.a. of the Work Letter), and the
Sublessee's obligation to pay the next installment of Base Rent coming due
hereunder shall be credited by the amount of such interest. If Sublessee does
terminate this Sublease based on the failure of Sublessor to deliver the
Premises to Sublessee by the Drop Dead Date, Sublessor shall pay Sublessee
interest on all sums previously paid by Sublessee to Sublessor in connection
with the Sublease from the date delivered to Sublessor until the date Sublessor
returns such previously paid sums to Sublessee with interest thereon as required
hereunder.
1.3 EARLY ENTRY. Notwithstanding anything to the contrary
herein, provided that the written consent of Landlord to this Sublease has
been received by Sublessor and Sublessee, Sublessee shall have the right to
occupy the Premises five (5) business days prior to the Commencement Date for
the purpose of installing furniture, cabling and personal property on the
Premises and Sublessee's contractor shall be allowed to enter the Premises
fifteen (15) business days prior to the Commencement Date for the purpose of
installing data and telephone lines, provided that: (i) Sublessee's early
entry shall not interfere with any of Sublessor's activities on the Premises
during such period; (ii) Sublessee shall give Sublessor written notice of
such entry at least five (5) days in advance; (iii) such entry on the
Premises shall be of the terms of this Sublease, except that Sublessee shall
not be required to pay any monthly Base Rent hereunder during any period of
early entry if Sublessee is not conducting Sublessee's business on the
Premises; (iv) during the last five (5) business days of early occupancy,
Tenant shall arrange to have all utilities services, including but not
limited to storm and sanitary sewer service, gas, electric, domestic and
irrigation water and trash billed directly to Sublessee for payment or, at
Landlord's option, reimburse Sublessor for the cost thereof (provided that,
if Sublessor continues to occupy the Premises during the last
five (5) business days prior to the Commencement Date, the cost of such
utilities during such five (5) business day period shall be equitably
proportioned between Sublessor and Sublessee, acting in good faith, in
proportion to the proportionate use of such utilities between the parties);
and (v) Sublessee shall provide Sublessor before such early entry with
certificates of the insurance required of Sublessee pursuant to the terms of
this Sublease.
5.
<PAGE>
2. CONDITION OF PREMISES.
2.1 PHYSICAL CONDITION. As of the Effective Date, Sublessee
acknowledges that Sublessee shall have conducted Sublessee's own investigation
of the Premises and the physical condition thereof, including accessibility and
location of utilities, improvements, existence of hazardous materials, including
but not limited to asbestos, asbestos containing materials, polychlorinated
biphenyls (PCB) and earthquake preparedness, which in Sublessee's judgment
affect or influence Sublessee's use of the Premises and Sublessee's willingness
to enter this Sublease. Sublessee recognizes that Sublessor would not sublease
the Premises except on an "as is" basis and acknowledges that Sublessor has made
no representations of any kind in connection with improvements or physical
conditions on, or bearing on, the use of the Premises. Sublessee shall rely
solely on Sublessee's own inspection and examination of such items and not on
any representations of Sublessor, express or implied. Sublessee further
recognizes and agrees that neither Sublessor nor Landlord shall be required to
perform any work or construction, alteration or maintenance of or to the
Premises, except as is provided for in this Sublease or in EXHIBIT C attached
hereto. The foregoing is not intended to and shall not limit or affect any
maintenance or repair or restoration obligations of Landlord under the Master
Lease. Notwithstanding anything to the contrary herein, the cost of any repairs
or replacements other than normal maintenance ("Special Repair Costs") necessary
for the four (4) existing air conditioning units on the Premises shall be dealt
with in the following manner: (i) any portion of such Special Repair Costs equal
to or less than Thirty Thousand Dollars in any calendar year shall be the
responsibility of Sublessee and shall be paid by Sublessee to Sublessor as
additional rent at the next time Base Rent is due hereunder, and (ii) if any
portion of Such Special Repair Costs exceeds Thirty Thousand Dollars ($30,000)
in any calendar year, then Sublessee shall be responsible for the initial
$30,000 and thereafter only for the portion of such excess cost equal to
Sublessee's Share (as defined below), which amount shall be paid by Sublessee to
Sublessor as additional rent at the next time Base Rent is due hereunder. The
remaining portion of such excess cost shall be paid by Sublessor. "Sublessee's
Share" shall be calculated by multiplying the portion of such Special Repair
Costs in excess of Thirty Thousand Dollars ($30,000) by a fraction, the
numerator of which is the number of months remaining in the Term of this
Sublease at the time the Special Repair Cost is incurred and the denominator of
which shall be 240.
2.2 FURTHER INSPECTION. Sublessee represents and warrants to
Sublessor that as of the Effective Date Sublessee shall examine and inspect all
matters with respect to taxes, income and expense data, insurance costs, bonds,
permissible uses, the Master Lease, zoning, covenants, conditions and
6.
<PAGE>
restrictions and all other matters which in Sublessee's judgment bear upon the
value and suitability of the Premises for Sublessee's purposes. Sublessee has
and will rely solely on Sublessee's own inspection and examination of such items
and not on any representations of Sublessor, express or implied. Nothing in
this Section 2.2 is meant to diminish in any way Sublessee's rights under the
Work Letter to review the Sublessee Improvements (as defined in the Work Letter)
and create a "punch list" of non-conforming items or the obligation of Sublessor
to correct such non-conforming items.
3. SUBLEASE SUBJECT TO MASTER LEASE.
3.1 INCLUSIONS. It is expressly understood, acknowledged and
agreed by Sublessee that all of the other terms, conditions and covenants of
this Sublease shall be those stated in the Master Lease except as excluded in
Section 3.b herein. Sublessee shall be subject to, bound by and comply with all
of said Articles and Sections of the Master Lease with respect to the Premises
and shall satisfy all applicable terms and conditions of the Master Lease
relating to the Premises for the benefit of both Sublessor and Landlord, it
being understood and agreed that wherever in the Master Lease the word "Tenant"
appears, for the purposes of this Sublease, the word "Sublessee" shall be
substituted, and wherever the word "Landlord" appears, for the purposes of this
Sublease, the word "Sublessor" shall be substituted; and that upon the breach of
any of said terms, conditions or covenants of the Master Lease by Sublessee or
upon the failure of Sublessee to pay Rent (as hereinafter defined) or comply
with any of the provisions of this Sublease, Sublessor may exercise any and all
rights and remedies granted to Landlord by the Master Lease. In the event of
any conflict between this Sublease and the Master Lease, the terms of this
Sublease shall control between Sublessor and Sublessee. It is further
understood and agreed that Sublessor has no duty or obligation to Sublessee
under the aforesaid Articles and Sections of the Master Lease other than to
perform the obligations of Sublessor as lessee under the Master Lease during the
Term of this Sublease. Whenever the provisions of the Master Lease incorporated
as provisions of this Sublease require the written consent of Landlord, said
provisions shall be construed to require the written consent of both Landlord
and Sublessor, except as expressly provided to the contrary herein. Sublessee
hereby acknowledges that it has read and is familiar with all the terms of the
Master Lease, and agrees that this Sublease is subordinate and subject to the
Master Lease and that any termination thereof not due to a default by Sublessor
thereunder shall likewise terminate this Sublease. The terms of the Work Letter
attached hereto as EXHIBIT C are hereby incorporated herein by reference hereto.
7.
<PAGE>
3.2 EXCLUSIONS. The terms and provisions of the following
Sections and portions of the Master Lease are not incorporated into this
Sublease: the initial paragraphs entitled "Parties," "Grant," "Premises,"
"Use," "Term," "Late Charge," 1, the first sentence of Section 2 of the
Master Lease, the last sentence of Section 3, the clause " ..., IN THE EVENT
LANDLORD SHALL FAIL TO RESPOND WITHIN SUCH PERIOD, SUCH ALTERATIONS OR
ADDITIONS WILL BE DEEMED TO HAVE BEEN CONSENTED TO BY LANDLORD" on the ninth,
tenth and eleventh lines of Section 4, the second and the last sentence of
Section 4, the third sentence of the first paragraph of Section 6, Section
10, the second sentence of Section 12, 19, the second sentence of Section 20,
21, the fourth sentence of Section 22, 23, Section 25, 30, 31, 32, 33 and the
fifth sentence of Section 35.
3.3 TIME FOR NOTICE. The time limits provided for in the
provisions of the Master Lease for the giving of notice, making of demands,
performance of any act, condition or covenant, or the exercise of any right,
remedy or option, are amended for the purposes of this Sublease by lengthening
or shortening the same in each instance by five (5) days, as appropriate, so
that notices may be given, demands made, or any act, condition or covenant
performed, or any right, remedy or option hereunder exercised, by Sublessor or
Sublessee, as the case may be, within the time limit relating thereto contained
in the Master Lease. If the Master Lease allows only five (5) days or less for
Sublessor to perform any act, or to undertake to perform such act, or to correct
any failure relating to the Premises or this Sublease, then Sublessee shall
nevertheless be allowed three (3) business days to perform such act, undertake
such act and/or correct such failure.
4. LANDLORD'S OBLIGATIONS. It shall be the obligation of Landlord to (i)
provide all services to be provided by Landlord under the terms of the Master
Lease and (ii) to satisfy all obligations and covenants of Landlord made in the
Master Lease. Sublessee acknowledges that Sublessor shall be under no
obligation to provide any such services or satisfy any such obligations or
covenants to the extent such obligations or covenants are not expressly assumed
by Sublessor hereunder; provided, however, Sublessor, upon written request of
Sublessee, shall diligently attempt to enforce all obligations of Landlord under
the Master Lease. If, after receipt of written request from Sublessee,
Sublessor shall fail or refuse to take action for the enforcement of Sublessor's
rights against Landlord with respect to the portion of the Premises then
occupied by Sublessee ("Action"), Sublessee shall have the right to take such
Action in its own name and at Sublessee's own expense, and for that purpose and
only to such extent, all of the rights of Sublessor as tenant under the Master
Lease are hereby conferred upon and assigned to Sublessee, and Sublessee shall
be subrogated to such rights to the extent that the same shall apply to the
portion of the
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Premises then occupied by Sublessee. If any Action against Landlord in
Sublessee's name shall be barred by reason of lack of privity, nonassignability
or otherwise, Sublessee may take such Action in Sublessor's name but at
Sublessee's expense; provided that Sublessee has obtained the prior written
consent of Sublessor, which consent shall not be unreasonably withheld; and
provided, further, that Sublessee shall indemnify, protect, defend by counsel
reasonably satisfactory to Sublessor and hold Sublessor harmless from and
against any and all claims, demands, actions, suits, proceedings, liabilities,
obligations, losses, damages, judgments, costs and expenses (including, without
limitation, reasonable attorneys' fees) which Sublessor may incur or suffer by
reason of such Action, except to the extent incurred or suffered by reason of
Sublessor's negligent acts or omissions. Sublessor hereby agrees to perform its
obligations as tenant under the Master Lease if and to the extent those
obligations are not assumed by Sublessee pursuant to the terms of this Sublease.
If a default by Landlord under the terms of the Master Lease, or any of the
terms of the Master Lease (including but not limited to Section 20 thereof)
shall result in the excuse of Sublessor from the performance of any of its
obligations to be performed under the Master Lease or result in any reduction or
abatement in the base rent or additional rent to be paid by Sublessor
thereunder, then Sublessee shall be excused from the performance of a
corresponding obligation and/or shall be entitled to a corresponding reduction
in or abatement of the Rent to be paid by Sublessee hereunder. All provisions
of the Master Lease incorporated into this Sublease which contain obligations or
covenants of Landlord shall be deemed to have been expressly assumed by
Sublessor and shall be obligations and covenants of Sublessor under this
Sublease.
5. RENT.
5.1 BASE RENT. Upon execution hereof, Sublessee shall deliver
the first month's Base Rent to Sublessor, to be applied against Sublessee's
first obligation to pay Base Rent hereunder. Sublessee shall pay to Sublessor
the Base Rent in advance on the first day of each month of the Term, commencing
on the Commencement Date without being invoiced by Sublessor. In the event the
first day of the Term shall not be the first day of a calendar month or the last
day of the Term is not the last day of the calendar month, the Base Rent shall
be appropriately prorated based on a thirty (30) day month. All installments of
Base Rent shall be delivered to Sublessor's Address, or at such other place
as may be designated in writing from time to time by Sublessor, in lawful money
of the United States and without deduction or offset for any cause whatsoever.
5.2 NET RENTAL. Sublessee shall be responsible for Sublessee's
Share of all costs and expenses of every kind and nature which may be imposed,
at any time, on Sublessor pursuant
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to the Master Lease (except for Base Rent, as defined in the Master Lease)
including, but not limited to, additional rent, operating costs, and tax costs,
all as defined in the Master Lease ", but excluding any late payment charges or
other costs, expenses or liabilities which Sublessor incurs under the Master
Lease (i) as a result of Sublessor's breach of, or default under, the Master
Lease or Sublessor's failure to perform its obligations under the Master Lease
in a timely manner or (ii) which arise as a result of or in connection with
Sublessor's indemnifications given under the Master Lease or Sublessor's
obligation to pay attorneys' fees under the Master Lease or (iii) which are
caused by or arise from the negligence or misconduct of Sublessor or its
employees, agents, contractors or invitees, except to the extent that such
otherwise excluded costs and expenses identified in immediately preceding
clauses (i), (ii) and (iii) are caused by Sublessee's breach of, or default
under, this Sublease or Sublessee's failure to perform its obligations under
this Sublease in a timely manner or the negligence or misconduct of Sublessee or
its employees, agents, contractors or invitees." As hereinafter used, "Rent"
shall include Base Rent and all additional charges to be paid by Sublessee
pursuant to this Section 5.2
5.3 LATE PAYMENT CHARGES AND INTEREST. Any payment of Rent or
other amount from Sublessee to Sublessor in this Sublease which is not paid
within ten (10) days of the date due shall accrue interest from the date due
until the date paid at an annual rate of ten percent (10%) (the "Interest
Rate"). If any installment of Rent is not paid promptly within ten (10) days of
the first of the month, or the date such amount is otherwise due, Sublessee
shall pay to Sublessor a late payment charge equal to five percent (5%) of the
amount of such delinquent payment of Rent, in addition to the installment of
Rent then owing. This Section 5 shall not relieve Sublessee of Sublessee's
obligation to pay any amount owing hereunder at the time and in the manner
provided.
6. SECURITY DEPOSIT. Upon execution hereof, Sublessee shall deposit
the Security Deposit with Sublessor. The Security Deposit shall secure
Sublessee's obligations under this Sublease to pay Base Rent and other monetary
amounts, to maintain the Premises and repair damages thereto, to surrender the
Premises to Sublessor in clean condition and repair upon termination of this
Sublease and to discharge Sublessee's other obligations hereunder. Sublessor
may use and commingle the Security Deposit with other funds of Sublessor. If
Sublessee fails to perform Sublessee's obligations hereunder, Sublessor may, but
without any obligation to do so, apply all or any portion of the Security
Deposit towards fulfillment of Sublessee's unperformed obligations. If Sublessor
does so apply any portion of the Security Deposit, Sublessee's failure to remit
to Sublessor a sufficient amount in cash to restore the Security
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Deposit to the original amount within five (5) days after receipt of Sublessor's
written demand to do so shall constitute an event of default. Upon termination
of this Sublease, if Sublessee is not then in default beyond any applicable cure
period in all of Sublessee's obligations hereunder, Sublessor shall return the
entire Security Deposit to Sublessee; if Sublessee is in default of one or more
provisions of the Sublease beyond any applicable cure period(s), then Sublessor
shall return whatever amount remains of the Security Deposit after Sublessor
applied all or a portion of the Security Deposit to cure such default(s), to
Sublessee, in both cases, without payment of interest and in accordance with the
terms of California Civil Code Section 1950.7 or any successor statute thereto.
7. USE. The Premises is to be used for the Permitted Uses, and for
no other purpose or business without the prior written consent of Sublessor. In
no event shall the Premises be used for a purpose or use prohibited by the
Master Lease.
8. ALTERATIONS. Sublessee shall not make or suffer to be made any
alterations, additions or improvements (collectively "Alterations") in, on, or
to the Premises without the prior written consent of Sublessor which consent
shall not be unreasonably withheld; provided, however, that Sublessor agrees not
to withhold Sublessor's consent to any Alteration which has already been
consented to in writing by Landlord. Sublessor will not respond to Sublessee's
request for approval of an Alteration until Sublessor has sought and received
Landlord's approval or disapproval of such Alteration (if Landlord's consent to
such Alteration is required under the Master Lease). Notwithstanding the
foregoing, Sublessee shall have the right, without need for the prior written
consent of Sublessor, to make non-structural Alterations which do not affect the
Building systems and cost less than Fifteen Thousand Dollars ($15,000) each to
build and install, provided that such Alterations are otherwise installed in
accordance with the terms of this Section 8. Any Alterations Sublessee is
permitted to make shall be made by Sublessee at Sublessee's sole cost and
expense, and Sublessee shall notify Sublessor at least five (5) business days in
advance of the same so that Sublessor may post appropriate notices of
nonresponsibility. Upon the expiration or sooner termination of this Sublease,
Sublessee shall, at Sublessee's sole cost and expense, forthwith and with all
due diligence, at Sublessee's sole cost and expense, repair and restore the
Premises to their condition as of the Commencement Date of this Sublease,
together with any Alterations which are not required to be removed by Sublessor
pursuant to the terms of this Sublease, ordinary wear and tear, Hazardous
Materials not caused by Sublessee, changes to the Premises due to Condemnation
thereof and damage to the Premises by an act of God or casualty excepted. In
addition, upon the expiration or earlier termination of this Sublease, to the
extent only that: (i) Landlord has required the removal of an
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Alteration and Landlord has the right under the Master Lease to require such
removal or (ii) (a) Sublessor has exercised any right Sublessor may now or
hereafter possess to reoccupy the Premises after the expiration or earlier
termination of this Lease (and provided Sublessee with written evidence of a
binding obligation to do so), and (b) Sublessor informed Sublessee in writing at
the time consent for such Alteration was given or written notice thereof was
received by Sublessor that removal of such Alteration would be required in the
event of (a), then Sublessee shall, at Sublessee's sole expense, forthwith and
with due diligence, remove any such Alteration from the Premises upon the
expiration or earlier termination of this Sublease. Nothing in this Section 8
shall be deemed to require Sublessee to remove any Alterations which were made
to the Premises by a party other than Sublessee or a Sublessee Party prior to
the Commencement Date of this Sublease. Under no circumstances shall Sublessee
be required to remove the improvements constructed and/or installed in the
Premises pursuant to the Work Letter attached as EXHIBIT C attached hereto.
Sublessor and Sublessee agree to cooperate with each other in good faith to
minimize the costs of restoration of the Premises at the expiration or earlier
termination of this Sublease.
9. DAMAGE AND DESTRUCTION.
9.1 TERMINATION OF MASTER LEASE. If the Premises is damaged or
destroyed and Landlord exercises any option it may have to terminate the Master
Lease, this Sublease shall terminate as of the date of the termination of the
Master Lease. If Sublessor has the option to terminate the Master Lease due to
an event of damage or destruction to the Premises and Sublessee is not then in
default (following Sublessor's notice to Sublessee and the expiration without
cure of the applicable cure period provided for in Section 15 of the Master
Lease, which has been incorporated herein) hereunder, then Sublessor shall
promptly give Sublessee notice of such option and shall exercise such option
only if so directed by Sublessee within ten (10) business days of receipt
thereof, subject to the relevant provisions of the Master Lease; provided,
however, that in the event that the Master Lease shall be terminable by
Sublessor pursuant to its terms, yet Sublessee shall direct Sublessor to refrain
from terminating the Master Lease, Sublessor shall nonetheless have the right to
terminate the Master Lease and this Sublease and all of the obligations of
Sublessor under both if Landlord has agreed in writing to (i) release Sublessor
from all obligations and liabilities under the Master Lease; and (ii) continue
this Sublease in full force and effect as a direct lease between Landlord and
Sublessee upon and subject to all of the terms, covenants and conditions of this
Sublease for the balance of the Term hereof. If Landlord so consents, Sublessee
shall (a) attorn to Landlord in connection with any such voluntary termination
and shall execute an attornment agreement in such form as may
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reasonably be requested by Landlord; provided, however, that the attornment
agreement does not materially adversely affect the use by Sublessee of the
Premises in accordance with the terms of this Sublease, materially increase
Sublessee's obligations under this Sublease or materially decrease Sublessee's
rights under this Sublease, and (b) release Sublessor from all obligations and
liabilities under this Sublease arising from and after the termination of the
Master Lease and Sublessor shall return to Sublessee the Security Deposit and
any unearned amounts prepaid to Sublessor by Sublessee pursuant to this
Sublease.
9.2 CONTINUATION OF SUBLEASE. If the Master Lease is not
terminated following any damage or destruction as provided above, this Sublease
shall remain in full force and effect; provided, however, that the Rent due
hereunder shall be abated to the extent and in proportion to the reduction in
base rent and additional rent due under the Master Lease pursuant to the terms
thereof. Sublessee shall be obligated to repair its Alterations to
substantially the condition they were in prior to such damage or destruction,
and Sublessor shall diligently enforce any obligation of Landlord to rebuild the
Premises in accordance with the Master Lease.
10. EMINENT DOMAIN.
10.1 TOTAL CONDEMNATION. If all of the Premises is condemned
by eminent domain, inversely condemned or sold in lieu of condemnation, for
any public or a quasi-public use or purpose ("Condemned" or "Condemnation"),
this Sublease shall terminate as of the date of title vesting in such
proceeding, and Rent shall be adjusted to the date of termination.
10.2 PARTIAL CONDEMNATION. If any portion of the Premises is
Condemned, and Landlord exercises any option to terminate the Master Lease,
this Sublease shall automatically terminate as of the date of the termination
of the Master Lease. If Sublessor has the option to terminate the Master
Lease and Sublessee is not then in default (following Sublessor's notice to
Sublessee and the expiration without cure of the applicable cure period
provided for in Section 15 of the Master Lease, which has been incorporated
herein) hereunder, Sublessor shall promptly give Sublessee notice of such
option and shall exercise such option only if so directed by Sublessee within
ten (10) business days of receipt thereof, subject to the relevant provisions
of the Master Lease and further provided that such partial condemnation
renders the Premises unusable for Sublessee's business, as reasonably
determined by Sublessor and Sublessee. Sublessor and Sublessee agree to
cooperate with each other to determine in good faith if the remaining portion
of the Premises is suitable for the continued conduct of Sublessee's business
therein. In the event that the Master Lease shall be terminable by Sublessor
pursuant to its terms, yet Sublessee shall direct
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Sublessor to refrain from terminating the Master Lease, Sublessor shall
nonetheless have the right to terminate the Master Lease and this Sublease and
all of the obligations of Sublessor under both if Landlord has agreed in writing
to (i) release Sublessor from all obligations and liabilities under the Master
Lease; and (ii) continue this Sublease in full force and effect as a direct
lease between Landlord and Sublessee upon and subject to all of the terms,
covenants and conditions of this Sublease for the balance of the Term hereof.
If Landlord so consents, Sublessee shall (a) attorn to Landlord in connection
with any such voluntary termination and shall execute an attornment agreement in
such form as may reasonably be requested by Landlord; provided, however, that
the attornment agreement does not materially adversely affect the use by
Sublessee of the Premises in accordance with the terms of this Sublease,
materially increase Sublessee's obligations under this Sublease or materially
decrease Sublessee's rights under this Sublease, and (b) release Sublessor from
all obligations and liabilities under this Sublease arising from and after the
termination of the Master Lease and return to Sublessee the Security Deposit and
any unearned amounts prepaid to Sublessor by Sublessee pursuant to this
Sublease. If this Sublease is not terminated following any such Condemnation,
this Sublease shall remain in full force and effect and Sublessor shall
diligently enforce any rights under the Master Lease to require Landlord to
rebuild the Premises. Base Rent shall be equitably adjusted to take into
account interference with Sublessee's ability to conduct its operations on the
Premises as a result of the Premises being Condemned. Sublessee hereby waives
the provisions of California Code of Civil Procedure Section 1265.130 permitting
a court of law to terminate this Sublease.
10.3 SUBLESSEE'S AWARD. Subject to the provisions of the Master
Lease, Sublessee shall have the right to recover from the condemning authority,
but not from Sublessor, such compensation as may be separately awarded to
Sublessee in connection with Sublessee's trade fixtures, Alterations, and any
reasonable structures and improvements created by Sublessee upon the Premises
which Sublessee is entitled to remove upon the expiration of the Term hereof.
Sublessee shall also be entitled to any and all expenses paid or to be paid by
the condemnor for moving Sublessee's equipment, Alterations and furniture.
11. INSURANCE.
11.1 ADDITIONAL INSUREDS. All insurance policies required to be
carried by Sublessee, pursuant to the Master Lease, shall contain a provision
whereby Sublessor and Landlord are each named as additional insureds under such
policies.
11.2 INSURANCE PROCEEDS. Whenever provisions in the Master
Lease which have been incorporated into this Sublease
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limit some obligation of Sublessor if Landlord would have insurance proceeds
available, the term "Landlord" shall be deemed to refer to both Landlord and
Sublessor, notwithstanding any provision to the contrary in this Sublease.
11.3 WAIVER OF SUBROGATION. To the extent agreed to by Landlord
in Landlord's consent to this Sublease, the waiver of subrogation provision
incorporated into the Sublease by reference, which is set forth in the third
grammatical paragraph of Section 6 of the Master Lease, commencing with the
second sentence and continuing through the end of the third grammatical
paragraph, shall supersede any conflicting provision in the Master Lease
and/or this Sublease. Notwithstanding the foregoing, as between Sublessor and
Sublessee such waiver of subrogation shall supersede any conflicting
provision in the Master Lease and/or the Sublease EXCEPT in a circumstance in
which Sublessor incurs loss, cost, expense or damage under the Master Lease
because of the failure of the waiver of subrogation to supersede inconsistent
provisions in the Master Lease. The waiver of subrogation that is contained
in the Master Lease, as expanded hereunder, will run between the Landlord and
the Sublessee, as well as between the Landlord and the Sublessor. Landlord,
by its execution of the consent following this Sublease, specifically
consents to the foregoing provision concerning the waiver of subrogation.
12. BROKERAGE COMMISSION.
12.1 SUBLESSOR'S OBLIGATIONS. Sublessor shall pay a brokerage
commission to Sublessor's Broker for Sublessee's subletting of the Premises
as provided for in a separate agreement between Sublessor and Sublessor's
Broker. Sublessor warrants for the benefit of Sublessee that its sole
contact with Sublessee in connection with this transaction has been directly
with Sublessee, Sublessor's Broker and Sublessee's Broker. Sublessor further
warrants for the benefit of Sublessee that no other broker or finder can
properly claim a right to a commission or a finder's fee based upon contacts
between the claimant and Sublessor with respect to the other party or the
Premises. Sublessor shall indemnify, defend by counsel acceptable to
Sublessee and hold Sublessee harmless from and against any loss, cost or
expense, including, but not limited to, attorneys' fees and court costs,
resulting from any claim through Sublessor for a fee or commission by any
broker or finder, other than any claims by Sublessor's Broker, in connection
with the Premises and this Sublease.
12.2 SUBLESSEE'S REPRESENTATIONS AND WARRANTIES AND INDEMNITY.
Sublessee warrants for the benefit of Sublessor that its sole contact with
Sublessor or the Premises in connection with this transaction has been
directly with Sublessor, Sublessor's Broker and Sublessee's Broker. Sublessee
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further warrants for the benefit of Sublessor that no other broker or finder
can properly claim a right to a commission or a finder's fee based upon
contacts between the claimant and Sublessee with respect to the other party
or the Premises. Sublessee shall indemnify, defend by counsel acceptable to
Sublessor and hold Sublessor harmless from and against any loss, cost or
expense, including, but not limited to, attorneys' fees and court costs,
resulting from any claim through Sublessee for a fee or commission by any
broker or finder, other than any claims by Sublessee's Broker, in connection
with the Premises and this Sublease.
13. SUBLESSEE'S INDEMNITY. Except to the extent caused by the
negligence or willful misconduct or breach of this Sublease or the Master
Lease of Sublessor or Sublessor's Parties, Sublessee shall defend, indemnify
and hold harmless Sublessor, its partners, employees, and agents, and
Landlord, from and against any and all claims, liabilities, suits,
judgments, awards, damages, losses, fines, penalties, costs and expenses,
including reasonable attorney's fees, that Sublessor, its partners, employees
and agents, and Landlord may suffer, incur or be liable for by reason of or
arising out of or related to the breach by Sublessee of any of the duties,
obligations, liabilities or covenants applicable to Sublessee hereunder. This
indemnification shall survive termination of this Sublease.
14. RIGHT TO CURE SUBLESSEE'S DEFAULTS. If Sublessee shall at any time
fail to make any payment or perform any other obligation of Sublessee
hereunder, then Sublessor shall have the right, but not the obligation, after
the lesser of five (5) days' notice to Sublessee or the time within which
Landlord may act on Sublessor's behalf under the Master Lease, or without
notice to Sublessee in the case of any emergency, and without waiving or
releasing Sublessee from any obligations of Sublessee hereunder, to make such
payment or perform such other obligation of Sublessee in such manner and to
such extent as Sublessor shall deem necessary, and in exercising any such
right, to pay any incidental costs and expenses, employ attorneys and other
professionals, and incur and pay attorneys' fees and other costs reasonably
required in connection therewith. Sublessee shall pay to Sublessor upon
demand all sums so paid by Sublessor and all incidental costs and expenses of
Sublessor in connection therewith, together with interest thereon at the
Interest Rate.
15. HAZARDOUS MATERIALS.
15.1 DEFINITIONS.
(a) "HAZARDOUS MATERIALS". As used herein, "Hazardous
Materials" means any chemical, substance, material, controlled substance,
object, condition, waste, living organism or combination thereof which is or
may be hazardous to human
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health or safety or to the environment due to its radioactivity,
ignitability, corrosivity, reactivity, explosivity, toxicity,
carcinogenicity, mutagenicity, phytotoxicity, infectiousness or other harmful
or potentially harmful properties or effects, including, without limitation,
petroleum and petroleum products, asbestos, radon, polychlorinated biphenyls
(PCBs) and all of those chemicals, substances, materials, controlled
substances, objects, conditions, wastes, living organisms or combinations
thereof which are now or become in the future listed, defined or regulated in
any manner by any Environmental Law based upon, directly or indirectly, such
properties or effects.
(b) ENVIRONMENTAL LAWS. As used herein, "Environmental Laws"
means any and all federal, state or local environmental, health and/or
safety-related laws, regulations, standards, decisions of courts, ordinances,
rules, codes, orders, decrees, directives, guidelines, permits or permit
conditions, currently existing and as amended, enacted, issued or adopted in
the future which are or become applicable to Sublessee or the Premises.
15.2 SUBLESSEE'S COVENANT. Sublessee shall not cause, or allow any
of Sublessee's employees, agents, customers, visitors, invitees, licensees,
contractors, assignees or subtenants (collectively, "Sublessee's Parties") to
cause any Hazardous Materials to be brought upon, stored, manufactured,
generated, blended, handled, recycled, treated, disposed or used on, under or
about the Premises, except for routine office and janitorial supplies in
usual and customary quantities stored, used and disposed of in accordance
with all applicable Environmental Laws. Notwithstanding the foregoing,
Sublessee shall have the right, without need for consent from Sublessor, to
use on the Premises the types of Hazardous Materials described in EXHIBIT D
attached hereto or as hereafter consented to by Sublessor, pursuant to the
terms of this Section 15.2 ("Permitted Hazardous Materials"), provided that:
(i) no Permitted Hazardous Materials shall be used on the Premises in amounts
in excess of the quantity thereof described in EXHIBIT D attached hereto,
(ii) all such Permitted Hazardous Materials shall be used in compliance with
all applicable Environmental Laws and in compliance with all of the terms of
this Sublease (except for the need for Sublessee's consent thereto), (iii)
such Permitted Hazardous Materials shall be used in a self-contained,
state-of-the-art enclosed system and (iv) to the extent Sublessee wishes to
use Hazardous Materials on the Premises other than the Permitted Hazardous
Materials or wishes to use Permitted Hazardous Materials in quantities in
excess of the amounts thereof described in EXHIBIT D, all such uses shall
require the prior written consent of Sublessor, which consent shall not be
unreasonably withheld if such Permitted Hazardous Materials are incidental to
the conduct of Sublessee's customary activities on the Premises. Sublessee
and Sublessee's Parties shall comply
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with all (to the extent Sublessee has actual knowledge of such presence)
Environmental Laws with respect to Hazardous Materials brought upon, stored,
manufactured, generated, blended, handled, recycled, treated, disposed or
used on, under or about the Premises by Sublessee or Sublessee's Parties and
promptly notify Sublessor of the presence of any Hazardous Materials, other
than Permitted Hazardous Materials or office and janitorial supplies as
permitted above, on the Premises or any violation (to the extent Sublessee
has actual knowledge of such violation) of any Environmental Law. Sublessor
shall have the right to inspect the Premises and to conduct tests and
investigations to determine whether Sublessee is in compliance with the
foregoing provisions provided that in each instance: (i) Sublessor gives
Sublessee prior written notice of such inspection at least seventy-two (72)
hours in advance, (except in cases of emergency, in which case no notice
shall be necessary) and (ii) Sublessor and Sublessor's agents, contractors
and representatives conduct such investigation in a manner reasonably
designed to limit interference to Sublessee and Sublessee's use of the
Premises. If such tests indicate the presence of any environmental condition
caused by Sublessee or Sublessee's Parties, Sublessee shall reimburse
Sublessor for the cost of conducting such tests. The phrase "environmental
condition" shall mean any adverse condition relating to any Hazardous
Materials or the environment, including surface water, groundwater, drinking
water supply, land, surface or subsurface strata or the ambient air and
includes air, land and water pollutants, noise, vibration, light and odors.
In the event that Sublessee or Sublessee's Parties have caused Hazardous
Materials to be released, stored, disposed of or introduced to the Premises
in a manner or in amounts in violation of Environmental Laws, Sublessee shall
promptly take any and all steps necessary to rectify the same or shall, at
Sublessee's election, reimburse Sublessor, upon demand, for the cost to
Sublessor of performing rectifying work. In the event that Sublessee shall
elect to rectify such violation of Environmental Law but fail to commence to
do so within the time periods required by relevant governmental authorities
or within a time period specified by Sublessor, in Sublessor's reasonable
discretion, Sublessor shall have the right to perform such rectifying work,
and Sublessee shall reimburse Sublessor for the cost thereof upon demand
therefor. Nothing in this Section 15.2 shall be deemed to create a liability
for or an obligation of Sublessee to remediate Hazardous Materials released
or stored on the Premises prior to the Commencement Date or at any time by
parties other than Sublessee or Sublessee's Parties.
15.3 SUBLESSEE'S INDEMNIFICATION. Sublessee shall indemnify,
protect, defend (by counsel reasonably acceptable to Sublessor) and hold
harmless Sublessor and its partners, directors, officers, employees,
shareholders, lenders, agents, contractors and each of their respective
successors and assigns from and against any and all claims, judgements,
causes of action,
18.
<PAGE>
damages, penalties, fines, taxes, costs, liabilities, losses and expenses
arising at any time during or after the Term as a result (directly or
indirectly) of or in connection with Hazardous Materials caused to be present
on, under or about the Premises by Sublessee or Sublessee's Parties. This
indemnity shall include the cost of any required or necessary repair, cleanup
or detoxification, and the preparation of any closure or other required
plans, whether such action is required or necessary prior to or following the
termination of this Sublease. Neither the written consent by Sublessor to the
presence of Hazardous Materials on, under or about the Premises nor the
strict compliance by Sublessee with all Environmental Laws shall excuse
Sublessee from Sublessee's obligation of indemnification pursuant hereto.
Sublessee's obligations pursuant to the foregoing indemnity shall survive the
termination of this Sublease.
15.4 SUBLESSOR'S INDEMNIFICATION. Sublessor shall indemnify,
protect, defend (by counsel reasonably acceptable to Sublessee) and hold
harmless Sublessee and its partners, directors, officers, employees,
shareholders, lenders, agents, contractors and each of their respective
successors and assigns from and against any and all claims, judgments, causes
of action, damages, penalties, fines, taxes, costs, liabilities, losses and
expenses arising at any time during or after the Term as a result (directly
or indirectly) of or in connection with the presence of Hazardous Materials
on, under or about the Premises or other properties as a result (directly or
indirectly) of Sublessor's and/or Sublessor's Parties' activities in
connection with the Premises. This indemnity shall include the cost of any
required or necessary repair, cleanup or detoxification, and the preparation
of any closure or other required plans, whether such action is required or
necessary prior to or following the termination of this Sublease. Neither the
written consent by Sublessee to the presence of Hazardous Materials on, under
or about the Premises nor the strict compliance by Sublessor with all
Environmental Laws shall excuse Sublessor from Sublessor's obligation of
indemnification pursuant hereto. Sublessor's obligations pursuant to the
foregoing indemnity shall survive the termination of this Sublease.
16. COVENANT OF QUIET ENJOYMENT. Subject to the termination of this
Sublease due to a termination of the Master Lease for reasons other than a
default by Sublessor as the tenant thereunder, Sublessee shall have, hold and
enjoy the Premises, subject to the terms and conditions of this Sublease,
provided that Sublessee pays all rent imposed hereunder and otherwise
performs all of Sublessee's covenants and agreements contained herein. The
obligations of Sublessor under this Section 16 are conditioned on the receipt
by Sublessor and Sublessee of the prior written consent of Landlord to this
Sublease and the terms and conditions thereof.
19.
<PAGE>
17. MISCELLANEOUS.
17.1 SUBLESSOR'S REPRESENTATIONS AND WARRANTIES. To the best of
Sublessor's knowledge, Sublessor represents and warrants that the Master
Lease is in full force and effect, and there exists under the Master Lease no
default or event of default by either Landlord or Sublessor, nor has there
occurred any event which, with the giving of notice or passage of time or
both, could constitute such a default or event of default. Sublessor further
represents and warrants that the copy of the Master Lease attached to this
Sublease as EXHIBIT B is a true and complete copy of the Master Lease and
that there are no addenda, amendments, exhibits or modifications to the
Master Lease except which are attached hereto as part of EXHIBIT B. As used
herein, "the best of Sublessor's knowledge" shall mean the actual knowledge
of Jonathan Anderson as of the Effective Date, without the obligation to
perform any research, investigation, due diligence or inquiry whatsoever.
17.2 COVENANTS OF SUBLESSOR. Sublessor shall not amend,
terminate (except as provided for in Sections 9 and 10 hereof) or explicitly
waive in writing any provisions under the Master Lease without receiving the
prior written consent of Sublessee, which consent shall not be unreasonably
withheld or delayed.
17.3 NOTICES. Any notice or report required or desired to be
given regarding this Sublease shall be in writing, may be given (i) by
personal delivery, (ii) by facsimile, (iii) by courier service or (iv) by
certified mail, return receipt requested. Any notice or report addressed to
Sublessor or Sublessee at the address set forth for each in Article I of this
Sublease shall be deemed to have been given (i) when delivered, if given by
personal delivery, (ii) instantaneously upon confirmation of receipt of
facsimile, (iii) on the business day following deposit, cost prepaid, with
Federal Express or similar private carrier, (iv) on the date the U.S. Post
Office certifies delivery or refusal of delivery if such notice or report was
deposited in the United States mail, certified, postage prepaid, and (v) in
all other cases when actually received. Either party may change its address by
giving notice of the same in accordance with this Section 17.3. The term
"business day" shall mean a day on which the carrier used (Federal Express or
other private carrier, or the U.S. Postal Service, as applicable) delivers,
whether by special request or in the ordinary course of operations.
17.4 ENTIRE AGREEMENT. This Sublease contains all of the
covenants, conditions and agreements between the parties concerning the
Premises, and shall supersede all prior correspondence, agreements and
understandings concerning the Premises, both oral and written. No addition or
modification of
20.
<PAGE>
any term or provision of this Sublease shall be effective unless set forth in
writing and signed by both Sublessor and Sublessee.
17.5 CAPTIONS. All captions and headings in this Sublease are for
the purposes of reference and convenience and shall not limit or expand the
provisions of this Sublease.
17.6 LANDLORD'S CONSENT. This Sublease is conditioned upon
Landlord's written approval of this Sublease within thirty (30) days after
the Effective Date. If Landlord refuses to consent to this Sublease, or if
the thirty (30) day consent period expires, this Sublease shall terminate and
neither party shall have any continuing obligation to the other with respect
to the Premises; provided Sublessor shall return the Deposit, any prepaid
Rent and any other sums previously paid by Sublessee to Sublessor in
connection with this Sublease, if previously delivered to Sublessor, to
Sublessee.
17.7 AUTHORITY. Each person executing this Sublease on behalf of a
party hereto represents and warrants that he or she is authorized and
empowered to do so and to thereby bind the party on whose behalf he or she is
signing.
17.8 ATTORNEY'S FEES. In the event either party shall bring any
action or proceeding for damages or for an alleged breach of any provision of
this Sublease to recover rents, or to enforce, protect or establish any right
or remedy hereunder, the prevailing party shall be entitled to recover
reasonable attorneys' fees and court costs as part of such action or proceeding.
17.9 SUBLESSOR'S RIGHT TO MATCH BIDS FOR, AND PERFORM, PROPERTY
MANAGEMENT SERVICES. On or before November 1, 1996, Sublessee shall solicit
bids (the "Property management Bids") from up to three (3) property
management companies reasonably satisfactory to Sublessor for the performance
of the property management and repair obligations of Sublessee (the
"Management Obligations") during the Term of this Sublease. Sublessee shall
promptly submit all of the Property Management Bids, together with written
notice of Sublessee's proposed winning bid (the "Winning Bid") to Sublessor
upon Sublessee's receipt thereof. Within five (5) business days after receipt
of the Property Management Bids, Sublessor shall, at Sublessor's sole
discretion, either (i) approve Sublessee's use of the property management
company submitting the Winning Bid for the performance of the Management
Obligations, which consent shall not be unreasonably withheld, or (ii) elect
instead to perform the Property Management Obligations itself (or through a
subsidiary of Sublessor, Amdahl Corporate Facilities) throughout the Term of
the Sublease on the terms and conditions of the Winning Bid. Should Sublessor
elect option (i) above, Sublessee shall provide Sublessor with a
fully-executed copy of the
21.
<PAGE>
management agreement entered into with the entity submitting the Winning Bid
promptly upon execution thereof. If Sublessor shall select option (ii) above,
Sublessor and Sublessee shall promptly enter into an agreement upon terms
reasonably satisfactory to both parties (including without limitation a
provision that Sublessee may terminate such agreement upon thirty (30) days'
written notice if Sublessor or Amdahl Corporate Facilities, as relevant,
fails to perform such Property Management Obligations in a manner reasonably
acceptable (at, or above the facility maintenance industry average) to
Sublessee) whereby Sublessor shall perform the Property Management Obligations
for Sublessee throughout the Term of this Sublease.
17.10 ASSIGNMENT OF RIGHTS. Sublessor hereby assigns to Sublessee,
without representation or warranty, all warranties given and indemnities made
by Landlord to Sublessor under the Master Lease which would reduce
Sublessee's obligations hereunder, to the extent such warranties and
indemnities are assignable.
17.11 CONSENTS. Whenever the consent of either Sublessor or
Sublessee is required under the terms of this Sublease, such consent shall
not be unreasonably withheld or delayed unless expressly provided to the
contrary herein.
17.12 EXHIBITS. All exhibits attached hereto are incorporated
herein and made a part hereof.
IN WITNESS WHEREOF, the parties hereto have executed one (1) or more
copies of this Sublease, dated as of the Effective Date.
"Sublessor"
AMDAHL CORPORATION, a Delaware
corporation
By: /s/ Edward S. Hartford
---------------------------------
Name: Edward S. Hartford
Title: Vice President,
Corporate Facilities
22.
<PAGE>
"Sublessee"
INTEGRATED SILICON SOLUTION, INC.,
a Delaware corporation
By: /s/ Gary L. Fischer
---------------------------------
Name: Gary L. Fischer
Title: Executive Vice President and
Chief Financial Officer
By:
--------------------------------
Name:
-------------------------------
Title:
-----------------------------
23.
<PAGE>
"Exhibit A"
LEGAL DESCRIPTION;
All that certain real property situate in the City of Santa Clara, County of
Santa Clara, State of California, described as follows:
PARCEL ONE:
- -----------
PARCEL 3, as shown upon that certain Parcel Map recorded April 13, 1979 in
Book 439 of Maps, at pages 17 and 18.
PARCEL TWO:
- -----------
That certain ingress and egress Easement No. 3 (appurtenant to Parcel 3)
situate in the Southerly common corner of Parcels 1 and 3 as said Easement
and Parcels are shown on that certain Parcel Map recorded April 13, 1979 in
Book 439 of Maps, pages 17 and 18.
<PAGE>
[Letterhead]
PARTIES: THIS LEASE, is entered into this 30th day of OCTOBER, 1986,
between SOBRATO INTERESTS II, a California General Partnership, and AMDAHL
CORPORATION, a Delaware Corporation, hereinafter called respectively Landlord
and Tenant.
GRANT: Landlord hereby leases to Tenant, and Tenant hires from Landlord
THAT CERTAIN TRACT OF REAL PROPERTY, ALL APPURTENANCES THERETO, AND THE
APPROXIMATELY 93,600 SQUARE FOOT OFFICE BUILDING LOCATED THEREON
("BUILDING"), situated in the City of Santa Clara, County of Santa Clara,
State of California, and more particularly described as follows, to wit:
PREMISES: That real property commonly known and designated as 2231
Lawson Lane, CITY OF SANTA CLARA, COUNTY OF SANTA CLARA, STATE OF CALIFORNIA,
APN NO. 224-44-018, ALL APPURTENANCES THERETO AND ALL IMPROVEMENTS LOCATED
THEREON, INCLUDING THE BUILDING (ALL OF THE FOREGOING BEING HEREINAFTER
REFERRED TO AS THE "PREMISES").
USE: Tenant shall use the Premises only for the following purposes and
shall not change the use of the Premises without the prior written consent
of Landlord, WHICH CONSENT WILL NOT BE UNREASONABLY WITHHELD: GENERAL OFFICE
USE, DEVELOPING, ASSEMBLING, OPERATING, AND SELLING COMPUTERS AND COMPUTER
PARTS, ACCESSORIES, MANUALS AND SOFTWARE AND ANCILLARY USES.
TERM: The term shall be for TWO HUNDRED FORTY FOUR (244) months,
commencing on the 1ST day of NOVEMBER, 1986, (HEREINAFTER CALLED THE
"COMMENCEMENT DATE"), and ending on the 28th day of FEBRUARY, 2007, at the
total rent or sum of NINETEEN MILLION EIGHT HUNDRED TWENTY-FOUR THOUSAND FOUR
HUNDRED EIGHTY ($19,824,480.00) DOLLARS, payable in monthly installments
COMMENCING MARCH 1, 1987 of:
March 1, 1987 - February 28, 1994 @ $56,160.00/month - $4,717,440.00
March 1, 1994 - February 28, 1998 @ $74,880.00/month - $3,594,240.00
March 1, 1998 - February 28, 2002 @ $93,600.00/month - $4,492,800.00
March 1, 2002 - February 28, 2007 @ $117,000.00/month - $7,020,000.00
--------------
$19,824,480.00
due on or before the first day of each calendar month during the term
hereof. Said rental shall be paid in lawful money of the United States of
America, without offset or deduction, and shall be paid to Landlord at THE
ADDRESS SPECIFIED FOR NOTICES TO LANDLORD IN ARTICLE 19 OF THIS LEASE, OR
SUCH PLACE OR PLACES AS MAY BE DESIGNATED FROM TIME TO TIME BY LANDLORD
PURSUANT TO SUCH ARTICLE. Rent for any period less than a calendar month
shall be a pro rata portion of the monthly installment.
1
<PAGE>
EXHIBIT B
LATE CHARGES: Tenant hereby acknowledges that late payment by Tenant to
Landlord of rent and other sums due hereunder will cause Landlord to incur
costs not contemplated by this Lease, the exact amount of which will be
extremely difficult to ascertain. Such costs include, but are not limited to,
administrative, processing, accounting charges, and late charges, which may
be imposed on Landlord by the terms of any contract, revolving credit,
mortgage or trust deed covering the Premises. Accordingly, if any installment
of rent or any other sum due from Tenant shall not be received by Landlord or
Landlord's designee within ten (10) days after RECEIPT BY TENANT OF WRITTEN
NOTICE FROM LANDLORD OF THE FAILURE TO PAY SUCH AMOUNT WHEN DUE. Tenant shall
pay to Landlord a late charge equal to five (5%) percent of such overdue
amount which shall be due and payable with the payment then delinquent. The
parties hereby agree that such late charge represents a fair and reasonable
estimate of the costs Landlord will incur by reason of late payment by
Tenant. Acceptance of such late charge WITHOUT RECEIPT OF ACCRUED RENT by
Landlord shall in no event constitute a waiver of Tenant's default with
respect to such overdue amount, nor prevent Landlord from exercising any of
the other rights and remedies granted hereunder.
IT IS FURTHER MUTUALLY AGREED BETWEEN THE PARTIES AS FOLLOWS:
1. POSSESSION: If Landlord, for any reason whatsoever, cannot deliver
possession of the said Premises to Tenant at the commencement of the said
term FOR PURPOSES OF ALLOWING TENANT TO BEGIN AND COMPLETE CONSTRUCTION OF
THE ALTERATIONS TO THE PREMISES, as hereinbefore specified, this Lease shall
not be void or voidable, nor shall Landlord be liable to Tenant for any loss
or damage resulting therefrom; but in that event the commencement and
termination dates of the Lease and all other dates affected thereby shall be
revised to conform to the date of Landlord's delivery of possession. The
above is however, subject to the provision that the period of delay of
delivery of the Premises shall not exceed SEVEN (7) days from the
commencement date herein. If the period of delay of delivery exceeds the
foregoing, Tenant, at his or its option, may cancel this Lease and declare it
null and void.
2. ACCEPTANCE OF PREMISES AND COVENANTS TO SURRENDER: By entry
hereunder, Tenant accepts the Premises as being in good and sanitary order,
condition and repair and accepts the Building and the other improvements in
their present condition. The Tenant agrees on the last day of the term
hereof, or on the sooner termination of this Lease, to surrender the
Premises unto Landlord in good condition and repair, EXCEPT FOR (1)
REASONABLE WEAR AND TEAR; (2) DAMAGE COVERED BY LANDLORD'S INSURANCE, IF ANY,
ON THE BUILDING OR PREMISES; (3) DAMAGE CAUSED BY ANY DEFECT IN THE DESIGN,
CONSTRUCTION OR MATERIALS OF THE BUILDING WHICH DESIGN, WORK OR MATERIALS
WERE NOT SUPPLIED BY TENANT; (4) DAMAGE CAUSED IN WHOLE OR IN PART BY THE
NEGLIGENCE OR WILLFUL MISCONDUCT OF LANDLORD OR ANY OF ITS AGENTS,
EMPLOYEES, INVITEES OR LICENSEES. "Good condition" shall mean that the
interior walls of all office and warehouse areas, the floors of all office
and warehouse areas, all suspended ceilings and any carpeting will be cleaned.
TENANT MAY, AT ITS OPTION, REMOVE ANY ALTERATIONS, IMPROVEMENTS AND ADDITIONS
MADE OR PAID FOR BY TENANT WHICH ARE NOT PERMANENTLY ATTACHED TO THE BUILDING
OR PREMISES AND LANDLORD MAY NOT REQUIRE TENANT TO SURRENDER ANY SUCH
ALTERATIONS, ADDITIONS OR IMPROVEMENTS, WHICH ARE NOT PERMANENTLY ATTACHED,
NOR MAY LANDLORD REQUIRE TENANT TO REMOVE
2
<PAGE>
EXHIBIT B
ANY SUCH ALTERATIONS, IMPROVEMENTS OR ADDITIONS, WHETHER PERMANENTLY ATTACHED
OR NOT. TENANT MAY REMOVE ANY SUCH ALTERATIONS, IMPROVEMENTS OR ADDITIONS
WHICH ARE NOT PERMANENTLY ATTACHED AT ANY TIME PRIOR TO THE EXPIRATION OF THE
TERM OF THIS LEASE, PROVIDED TENANT REPAIRS ANY DAMAGE CAUSED BY SUCH
REMOVAL. Tenant on or before the end of the term or sooner termination of
this Lease, shall remove all his or its personal property and trade fixtures
from the Premises; and all property not so removed shall be deemed to be
abandoned by Tenant. If the Premises are not surrendered at the end of the
term or sooner termination of this Lease, Tenant shall indemnify Landlord
against loss or liability resulting from delay by Tenant in so surrendering
the Premises including, without limitation, any claims made by any succeeding
tenant founded on such delay.
3. USES PROHIBITED: Tenant shall not commit, or suffer to be
committed, any waste upon the said Premises, or any nuisance, or other act or
thing which may disturb the quiet enjoyment of any other tenant OF LANDLORD'S
IN ANY BUILDINGS OWNED BY LANDLORD ADJACENT TO THE PREMISES or allow any sale
by auction upon the Premises, or allow the Premises to be used for any
improper, immoral, unlawful or objectionable purpose, or place any loads
upon the floor, walls, or ceiling which endanger the structure, or use any
machinery or apparatus OTHER THAN NORMAL OFFICE EQUIPMENT, EQUIPMENT
NECESSARY FOR THE OPERATION OF TENANT'S BUSINESS AS CONTEMPLATED HEREBY, OR
EQUIPMENT NECESSARY TO COMPLETE THE CONSTRUCTION OF ALTERATIONS TO THE
PREMISES WHICH HAVE BEEN APPROVED BY THE LANDLORD, which will in any manner
vibrate or shake the Premises or the Building of which it is a part. No
materials, supplies, equipment, finished products or semi-finished products,
raw materials or articles of any nature or any waste materials, refuse,
scrap or debris shall be stored upon or permitted to remain on any portion of
the Premises VISIBLE outside of the Building proper. LANDLORD HEREBY WARRANTS
AND ACKNOWLEDGES THAT TENANT'S PROPOSED USE OF THE PREMISES AS SET FORTH
HEREIN WILL NOT BE IMPROPER, IMMORAL, UNLAWFUL, OR OBJECTIONABLE.
4. ALTERATIONS AND ADDITIONS: Tenant shall not make, or suffer to be
made, any alteration or addition to the said Premises, or any part thereof,
without the written consent of Landlord first had and obtained, WHICH SHALL
NOT BE UNREASONABLY WITHHELD AND SHALL BE based upon Tenant's delivering to
Landlord the proposed architectural and structural plans on all such
alterations: TENANT SHALL DELIVER SUCH PLANS TO LANDLORD AT LEAST TEN (10)
DAYS PRIOR TO THE DATE UPON WHICH TENANT WISHES TO BEGIN SUCH WORK AND
LANDLORD SHALL HAVE TEN (10) DAYS AFTER RECEIPT OF SAME TO APPROVE OR REJECT
SUCH ALTERATIONS OR ADDITIONS, SUCH APPROVAL SHALL NOT BE UNREASONABLY
WITHHELD; IN THE EVENT LANDLORD SHALL FAIL TO RESPOND WITHIN SUCH PERIOD,
SUCH ALTERATIONS OR ADDITIONS WILL BE DEEMED TO HAVE BEEN CONSENTED TO BY
LANDLORD. IN ADDITION, TENANT SHALL NOT BE REQUIRED TO OBTAIN LANDLORD'S
CONSENT TO ANY NONSTRUCTURAL ALTERATION COSTING LESS THAN $50,000.00. ANY
ALTERATIONS, IMPROVEMENTS OR ADDITIONS MADE OR PAID FOR BY TENANT WHICH ARE
NOT PERMANENTLY ATTACHED TO THE BUILDING SHALL REMAIN THE PROPERTY OF TENANT
AND TENANT MAY REMOVE SUCH ALTERATIONS, IMPROVEMENTS OR ADDITIONS AT ANY TIME
DURING THE TERM HEREOF, PROVIDED TENANT REPAIRS ANY DAMAGE CAUSED BY SUCH
REMOVAL. Tenant agrees that he or it will not proceed to make such
alterations or additions, after having obtained consent from Landlord to do
so, until three (3) days from the receipt of such consent, in order that
Landlord may post appropriate notices to avoid any liability to contractors
or material suppliers for payment
3
<PAGE>
EXHIBIT B
for Tenant's improvements. Tenant will at all times permit such notices to be
posted and to remain posted until the completion of work. Landlord hereby
consents to the tenant alterations to be made at Tenant's expense, prior to
occupancy, attached hereto as Exhibit "A".
5. MAINTENANCE OF PREMISES: Tenant shall, at ITS sole cost, keep and
maintain said Premises and appurtenances and every part THEREOF, including
but not limited to, glazing, sidewalks, parking areas, plumbing, electrical
systems, and the interior of the Premises, in good and sanitary order,
condition, and repair. LANDLORD SHALL MAINTAIN, AT ITS SOLE COST, THE
STRUCTURE OF THE BUILDING INCLUDING THE EXTERIOR WALLS, FOUNDATION AND ROOF
STRUCTURE. IN ADDITION, LANDLORD SHALL BE RESPONSIBLE FOR THE COST OF ANY
REPLACEMENT OF THE ROOF MEMBRANE AND INSULATION IN ACCORDANCE WITH
MANUFACTURER'S SPECIFICATIONS REQUIRED DURING THE LEASE TERM. Tenant shall
pay the cost of all air-conditioning and heating equipment repairs or
replacements which are excluded from existing equipment warranties. Tenant
shall be responsible for the preventive maintenance of the membrane of the
roof, which responsibility shall be deemed properly discharged if (i) Tenant
contracts with a licensed roof contractor who is reasonably satisfactory to
both Tenant and Landlord at Tenant's sole cost, to inspect the roof membrane
no less often than every twelve months, commencing with the sixth (6th) month
after the Commencement Date, and (ii) Tenant performs, at Tenant's sole cost,
all REASONABLE preventive maintenance recommendations made by such contractor
within a reasonable time after such recommendations are made. Such
preventive maintenance might include acts such as clearing storm gutters and
drains, removing debris from the roof membrane, trimming trees overhanging
the roof membrane, applying coating materials to seal roof penetrations,
repairing blisters, and other routine measures. The Tenant agrees to water,
maintain and replace, when necessary, any shrubbery and landscaping provided
by Landlord. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, TENANT'S DUTY
TO KEEP, REPAIR AND MAINTAIN THE PREMISES AND SURRENDER THE SAME IN GOOD AND
SANITARY ORDER, CONDITION AND REPAIR, ORDINARY WEAR AND TEAR AND DAMAGE BY
CASUALTY EXCEPTED, SHALL NOT EXTEND TO THE FOLLOWING; (A) DAMAGE AND REPAIRS
ATTRIBUTABLE TO DEFECTS IN THE DESIGN, WORKMANSHIP AND MATERIALS OF THE
BUILDING AND NOT ATTRIBUTABLE TO ALTERATIONS AND ADDITIONS MADE BY TENANT;
(B) DAMAGE COVERED UNDER ANY INSURANCE POLICY CARRIED BY LANDLORD IN
CONNECTION WITH THE BUILDING; AND (C) DAMAGE CAUSED IN WHILE OR PART BY THE
NEGLIGENCE OR WILLFUL MISCONDUCT OF LANDLORD OR ANY OF ITS AGENTS, EMPLOYEES,
INVITEES OR LICENSEES.
6. HAZARD INSURANCE: Tenant shall not use, or permit said Premises, or
any part thereof, to be used, for any purpose other than that for which the
said Premises are hereby leased; and no use shall be made or permitted to be
made of the said Premises, nor acts done, which will cause or a cancellation
of any insurance policy covering said Building, or any part thereof. Tenant
shall, at his sole cost and expense, comply with any and all requirements,
pertaining to said Premises, of any insurance organization or company,
necessary for the maintenance of reasonable fire and public liability
insurance, covering said Building and appurtenances. The Landlord agrees to
purchase and keep in force ALL RISK insurance EXCLUDING EARTHQUAKE AND FLOOD
covering the Premises in amounts not to exceed the actual REPLACEMENT value
of said Premises as determined by Landlord's insurance company's appraisers.
The Tenant agrees to pay to the Landlord as additional rent, on demand, the
full cost of said insurance as evidenced by insurance billings to the
Landlord. Payment shall
4
<PAGE>
EXHIBIT B
be due to Landlord within ten (10) days after written invoice to Tenant.
TENANT AGREES TO ADDITIONALLY REIMBURSE LANDLORD FOR THE COST OF EARTHQUAKE
INSURANCE IN THE EVENT THE EARTHQUAKE PREMIUM IS LESS THAN FIFTY PERCENT (50%)
OF THE TOTAL COST OF ALL RISK INSURANCE INCLUDING EARTHQUAKE.
In addition, Tenant ACKNOWLEDGES THAT LANDLORD IS NOT PROVIDING INSURANCE
FOR TENANT'S personal property, additions, alterations, and improvements and
TENANT AGREES to obtain public liability insurance for occurrences within the
Premises with minimum limits of coverage of $5,000,000.00 per occurrence of
injury and $500,000.00 for property damage. Tenant shall name Landlord as an
additional insured, shall deliver a copy of the policies and renewal
certificates to Landlord. All such policies shall provide for thirty (30)
days' prior written notice to Landlord of any cancellation or termination.
It is understood and agreed that Tenant's obligation under this
paragraph will be prorated to reflect the commencement and termination dates
of this Lease. Landlord and Tenant hereby waive any rights each may have
against the other on account of any loss or damage occasioned to the Landlord
or the Tenant as the case may be, or to the Premises or its contents, and
which may arise from any risk covered by their respective insurance policies,
as set forth above. The parties shall obtain from their respective insurance
companies a waiver of any right of subrogation which said insurance company
may have against the Landlord or the Tenant, as the case may be. IF EITHER
PARTY SHALL FAIL TO OBTAIN A WAIVER OF SUBROGATION AS REQUIRED HEREUNDER,
SUCH PARTY SHALL INDEMNIFY, DEFEND AND SAVE THE OTHER PARTY HARMLESS FROM AND
AGAINST ANY AND ALL CLAIMS, DEMANDS, ACTIONS, SUITS, LOSSES, DAMAGES, COSTS,
EXPENSES AND LIABILITIES ATTRIBUTABLE TO SUCH FAILURE.
7. ABANDONMENT: IF Tenant shall abandon, vacate or surrender said
Premises, or be dispossessed by process of law, or otherwise, any personal
property belonging to Tenant and left on the Premises shall be deemed to be
abandoned, at the option of Landlord, except such property as may be
mortgaged to Landlord.
8. FREE FROM LIENS: Tenant shall keep the Premises free from any liens
arising out of any work performed, materials furnished, or obligations
incurred by Tenant. NOTWITHSTANDING THE FOREGOING, TENANT SHALL HAVE THE
RIGHT, AT ANY TIME AND AT ITS EXPENSE, TO CONTEST IN GOOD FAITH BY JUDICIAL
PROCEEDINGS OR OTHERWISE, THE VALIDITY OF ANY SUCH LIEN OR CLAIM UPON
FURNISHING TO THE TITLE INSURANCE COMPANY WHICH INSURES LANDLORD'S TITLE TO
THE PREMISES, SUCH SECURITY OR INDEMNITY AS MAY BE REQUIRED TO INDUCE SUCH
TITLE INSURANCE COMPANY TO ISSUE ITS TITLE INSURANCE COMMITMENTS INSURING
AGAINST ALL SUCH CLAIMS OR LIENS, OR BY FURNISHING TO LANDLORD SUCH OTHER
SECURITY WITH RESPECT TO SUCH LIENS OR CLAIMS WHICH MAY BE REASONABLY
ACCEPTABLE TO LANDLORD.
9. COMPLIANCE WITH GOVERNMENTAL REGULATIONS: Tenant shall, at ITS
sole cost and expense, comply with all of the requirements of all Municipal,
State and Federal authorities now in force, or which may hereafter be in
force, pertaining to the said Premises, and shall faithfully observe in the
use of the Premises all APPLICABLE Municipal ordinances and State and Federal
statutes now in force or which may hereafter be in force. The judgement of
any court of competent jurisdiction, or the admission of Tenant in any
action or proceeding against Tenant, whether Landlord be a party thereto or
not, that Tenant has violated any such ordinance or statute in the use of the
Premises, shall be conclusive of that fact as between Landlord and Tenant.
5
<PAGE>
EXHIBIT B
10. TOXIC WASTE AND ENVIRONMENTAL DAMAGE: Without obtaining ten (10)
days prior written consent of Landlord, Tenant shall not bring, allow, use or
permit upon the Premises, or generate or create at or emit or dispose from
the Premises any chemicals, toxic or hazardous gaseous, liquid or solid
materials or waste, including without limitation, material or substance
having characteristics of ignitability, corrosivity, reactivity, or
extraction procedure toxicity or substances or materials which are listed on
any of the Environmental Protection Agency's lists of hazardous wastes or
which are identified in Sections 66680 through 66685 of Title 22 of the
California Administrative Code as the same may be amended from time to time.
NOTWITHSTANDING THE FOREGOING, TENANT SHALL NOT BE REQUIRED TO OBTAIN
LANDLORD'S CONSENT TO BRING UPON THE PREMISES AND USE ANY AND ALL OFFICE
SUPPLIES AND EQUIPMENT, INCLUDING COMPUTERS, WHICH ARE USED IN THE ORDINARY
COURSE OF ITS BUSINESS, OR ANY AND ALL MATERIALS WHICH ARE NECESSARY TO
PERMIT TENANT TO CONSTRUCT THE IMPROVEMENTS AND ALTERATIONS CONTEMPLATED
HEREBY. Tenant shall comply, at its sole cost, with all laws pertaining to,
and shall indemnify and hold Landlord harmless from any claims, liabilities,
costs or expenses incurred or suffered by Landlord arising from such
bringing, allowing, using, permitting, generating, creating, or emitting or
disposing of any such materials USED BY TENANT DURING TERM OF LEASE. Tenant's
indemnification and hold harmless obligations include, without limitation,
(i) claims, liability, costs or expenses resulting from or based upon
administrative, judicial (civil or criminal) or other action, legal or
equitable, brought by any private or public person under common law or under
the Comprehensive Environmental Response, Compensation and Liability Act of
1980 ("CERLA"), the Resource Conservation and Recovery Act of 1980 ("RCRA")
or any other Federal, State, County or Municipal law, ordinance or regulation
(ii) claims, liabilities, costs or expenses pertaining to the cleanup or
containment of wastes, the identification of the pollutants in the waste, the
identification of scope of any environmental contamination, the removal of
pollutants from soils, riverbeds or aquifers, the provision of an alternative
public drinking water source, or the long term monitoring of ground water and
surface waters, and (iii) all costs of defending such claims PROVIDED, THIS
INDEMNITY AND HOLD HARMLESS OBLIGATION SHALL BE LIMITED TO CLAIMS ARISING DUE
TO THE NEGLIGENCE OR FAULT OF TENANT. LANDLORD INDEMNIFIES AND HOLDS HARMLESS
TENANT FROM HAZARDOUS WASTE AND TOXIC SUBSTANCES DUE TO CAUSES OCCURRING
BEFORE THE DATE OF THE LEASE, AFTER SURRENDER OF THE PREMISES BY TENANT, AND
DURING THE TERM OF THE LEASE IF CAUSED BY LANDLORD.
11. INDEMNITY: Tenant, as a material part of the consideration to be
rendered to Landlord, hereby waives all claims against Landlord for damages
to goods, wares and merchandise, and all other personal property in, upon or
about said Premises and for injuries to persons in or about said Premises,
from any cause arising at any time, and Tenant will hold Landlord exempt and
harmless from any damage or injury to any person, or to the goods, wares and
merchandise and all other personal property of any person, arising from the
use of the Premises by Tenant, or from the failure of Tenant to keep the
Premises in good condition and repair, as herein provided. Further, in the
event Landlord is made party to any litigation due to the acts or omission of
Tenant, Tenant will indemnify and hold Landlord harmless from any such claim
or liability including Landlord's costs and expenses and reasonable
attorney's fees incurred in defending such claims. NOTWITHSTANDING THE
FOREGOING, TENANT SHALL NOT
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INDEMNIFY LANDLORD FOR ANY INJURY OR DAMAGE CAUSED BY THE NEGLIGENCE OR
WILLFUL MISCONDUCT OF LANDLORD OR LANDLORD'S AGENTS, EMPLOYEES, INVITEES OR
LICENSEES, AND LANDLORD SHALL INDEMNIFY AND HOLD HARMLESS TENANT FROM ANY
DAMAGE OR INJURY TO ANY PERSON, OR TO THE GOODS, WARES AND MERCHANDISE AND
ALL PERSONAL PROPERTY OF ANY PERSON, ARISING FROM THE USE OF THE PREMISES BY
LANDLORD OR FROM THE NEGLIGENCE OR WILLFUL MISCONDUCT OF LANDLORD OR
LANDLORD'S AGENTS, EMPLOYEES, INVITEES OR LICENSEES. FURTHER, IN THE EVENT
TENANT IS MADE PARTY TO ANY LITIGATION DUE TO THE ACTS OR OMISSIONS OF
LANDLORD, LANDLORD WILL INDEMNIFY AND HOLD TENANT HARMLESS FROM ANY SUCH
CLAIM OR LIABILITY INCLUDING TENANT'S COSTS, EXPENSES AND REASONABLE
ATTORNEYS' FEES INCURRED IN DEFENDING SUCH CLAIMS.
12. ADVERTISEMENTS AND SIGNS: The Tenant will not place, or permit to
be placed, upon the Premises, any signs, advertisements or notices without the
written consent of the Landlord as to type, size, coloring and location, and
such consent will not be unreasonably withheld. TENANT SHALL HAVE THE RIGHT,
SUBJECT TO LANDLORD'S APPROVAL RIGHTS, TO PLACE AT LEAST ONE SIGN WITH
THE NAME "AMDAHL" ON IT, ON THE EXTERIOR OF THE BUILDING AND DRIVEWAY
MONUMENT SIGNS. Any sign so placed on the Premises shall be so placed upon
the understanding and agreement that Tenant will remove same at the
termination of the tenancy herein created and repair any damage or injury to
the Premises caused thereby, and if not so removed by Tenant then Landlord
may have same so removed at Tenant's expense.
13. UTILITIES: Tenant shall pay directly to the providing utility all
water, gas, heat, light, power, telephone and other utilities supplied to the
Premises. TENANT SHALL HAVE THE RIGHT, AT ANY TIME, AND ITS EXPENSE, TO
CONTEST IN GOOD FAITH BY JUDICIAL PROCEEDINGS OR OTHERWISE THE AMOUNT OF ANY
BILL RECEIVED FROM ANY SUCH UTILITY IF IT DEEMS SAME EXCESSIVE, AND IN ANY
SUCH EVENT TENANT SHALL NOT BE OBLIGATED TO PAY SUCH BILL UNTIL A FINAL
JUDICIAL DETERMINATION OF SUCH CONTEST, BUT SHALL PROVIDE LANDLORD WITH SUCH
SECURITY AS IT MAY REASONABLY REQUIRE.
14. ATTORNEY'S FEES: In case suit should be brought for the possession
of the Premises, for the recovery of any sum due hereunder, or because of the
breach of any other covenant herein, the losing party shall pay to the
prevailing party ITS REASONABLE ATTORNEYS' FEES AND COSTS INCURRED IN
CONNECTION WITH SUCH SUIT.
15. DEFAULT: The occurrence of any of the following shall constitute AN
EVENT OF DEFAULT ("EVENT OF DEFAULT") of this Lease by Tenant: a) Any failure
by Tenant to pay the rental or to make any other payment required to be made
by Tenant hereunder WHEN DUE, WHERE SUCH FAILURE CONTINUES FOR TEN (10) DAYS
AFTER RECEIPT BY TENANT OF WRITTEN NOTICE THEREOF FROM LANDLORD; (B) A
failure by Tenant to observe and perform any other provision of this Lease to
be observed or performed by Tenant, where such failure continues for thirty
(30) days after written notice thereof by Landlord to Tenant; provided,
however, that if the nature of such default is such that the same cannot
reasonably be cured within such thirty (30) day period Tenant shall not be
deemed to be in default if Tenant shall within such period commence such cure
and thereafter diligently prosecute the same to completion; d) The making by
Tenant of any general assignment for the benefit of creditors; the filing by
or against Tenant of a petition to have Tenant adjudged a bankrupt or of a
petition for
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reorganization or arrangement under any law relating to bankruptcy (unless,
in the case of a petition filed against Tenant, the same is dismissed within
sixty (60) days); the appointment of a trustee or receiver to take possession
of substantially all of Tenant's assets located at the Premises or of
Tenant's interest in this Lease, where possession is not restored to Tenant
within thirty (30) days; or the attachment, execution or other judicial
seizure of substantially all of Tenant's assets located at the Premises or of
Tenant's interest in this Lease, where such seizure is not discharged within
thirty (30) days. The notice requirements set forth herein are in lieu of and
not in addition to the notices required by California Code of Civil Procedure
Section 1161.
15.(a) REMEDIES: UPON THE OCCURRENCE OF AN EVENT OF DEFAULT BY THE
TENANT, WHICH DEFAULT REMAINS UNCURED AT THE EXPIRATION OF ANY APPLICABLE
GRACE PERIOD, then in addition to any other remedies available to Landlord at
law or in equity, Landlord shall have the immediate option to terminate this
Lease and all rights of Tenant hereunder by giving written notice of such
intention to terminate. In the event that Landlord shall elect to so
terminate this Lease then Landlord may recover from Tenant: a) the worth at
the time of award of any unpaid rent which had been earned at the time of
such termination; plus b) the worth at the time of award of the amount by
which the unpaid rent WHICH would have been earned after termination until
the time of award exceeds the amount of such rental loss Tenant proves could
have been reasonably avoided; plus c) the worth at the time of award of the
amount by which the unpaid rent for the balance of the term after the time of
award exceeds the amount of such rental loss that Tenant proves could be
reasonably avoided; plus d) any other amount necessary to compensate Landlord
for all the detriment proximately caused by Tenant's failure to perform his
obligations under this Lease or which in the ordinary course of things would
be likely to result therefrom, and e) at Landlord's election, such other
amounts in addition to or in lieu of the foregoing as may be permitted from
time to time by applicable California law. The term "rent", as used herein,
shall be deemed to be and to mean the minimum monthly installments of rent
and all other sums required to be paid by Tenant pursuant to the terms of
this Lease. As used in (a) and (b) above, the "worth at the time of award" is
computed by allowing interest at the rate of the discount rate of the Federal
Reserve Bank of San Francisco plus five (5%) percent per annum. As used in
(c) above, the "worth at the time of award" is computed by discounting such
amount at the discount rate of the Federal Reserve Bank of San Francisco at
the time of award plus one (1%) percent.
15.(B) RIGHT TO RE-ENTER: UPON THE OCCURRENCE OF ANY EVENT OF DEFAULT
BY TENANT, WHICH DEFAULT REMAINS UNCURED AT THE EXPIRATION OF ANY APPLICABLE
GRACE PERIOD, Landlord shall also have the right TO TERMINATE THIS LEASE AND
re-enter the Premises and remove all persons and property from the Premises;
such property may be removed and stored in a public warehouse or elsewhere at
the cost of and for the account of Tenant.
15.(c) ABANDONMENT: IN the event that Landlord shall take possession
of the Premises pursuant to legal proceeding or pursuant to any notice
provided by law, then if Landlord does not elect to terminate this Lease as
provided in paragraph 15.(a) above, then the provisions of California Civil
Code Section 1951.4 shall apply and Landlord may from time to time, without
terminating this
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EXHIBIT B
Lease, either recover all rental as it becomes due or relet the Premises or
any part thereof for such term or terms and at such rental or rentals and
upon such other terms and conditions as Landlord in its sole discretion may
deem advisable with the right to make alterations and repairs to the
Premises. In the event that Landlord shall elect to so relet, then rentals
received by Landlord from such reletting shall be applied; first, to the
payment of any indebtedness other than rent due hereunder from Tenant to
Landlord; second, to the payment of REASONABLE COSTS of such reletting;
third, to the payment of the cost of REASONABLE alterations and repairs to
the Premises; fourth, to the payment of rent due and unpaid hereunder; and
the residue, if any, shall be held by Landlord and applied in payment of
future rent as the same may become due and payable hereunder. Should that
portion of such rentals received from such reletting during any month, which
is applied by the payment of rent hereunder, be less than the rent payable
during that month by Tenant hereunder, then Tenant shall pay such deficiency
to Landlord immediately upon demand therefor by Landlord. Such deficiency
shall be calculated and paid monthly. Tenant shall also pay to Landlord, as
soon as ascertained, REASONABLE costs and expenses incurred by Landlord in
such reletting or in making such alterations and repairs not covered by the
rentals received from such reletting.
15.(d) NO TERMINATION: No re-entry or taking possession of the Premises
by Landlord pursuant to 15.(c) of this Article 15 shall be construed as an
election to terminate this Lease unless a written notice of such intention be
given to Tenant or unless the termination thereof be decreed by a court of
competent jurisdiction. Notwithstanding any reletting without termination by
Landlord because of any default by Tenant, Landlord may at any time after
such reletting elect to terminate this Lease for any such default.
16. SURRENDER OF LEASE: The voluntary or other surrender of this
Lease by Tenant, or a mutual cancellation thereof, shall not automatically
effect a merger. At the option of Landlord, Tenant's surrender may terminate
all or any existing sublease or subtenancies, or may operate as an assignment
to Landlord of any or all such subleases or subtenancies, thereby creating a
direct Landlord-Tenant relationship between Landlord and any subtenants.
17. HABITUAL DEFAULT: Notwithstanding anything to the contrary
contained in ARTICLE 15 HEREOF, the parties hereto agree that if the Tenant
shall have defaulted in the performance of any (but not necessarily the same)
term or condition of this Lease for three or more times during any twelve
month period during the term hereof, then such conduct shall, at the election
of the Landlord, represent a separate EVENT OF DEFAULT which cannot be cured
by the Tenant. Tenant acknowledges that the purpose of this provision is to
prevent repetitive defaults by the Tenant under the Lease, which work a
hardship upon the Landlord, and deprive the Landlord of the timely
performance by the Tenant hereunder.
18. TAXES: Tenant shall be liable for all taxes levied against
personal property and trade or business fixtures LOCATED UPON THE PREMISES,
and agrees to pay, as additional rental, all real estate taxes and special
assessment installments levied on the Premises, WHICH TAXES ARE ASSESSED
AGAINST THE PREMISES AND ALLOCABLE TO ANY PERIOD AFTER MARCH 1, 1987 AND
PRIOR TO THE TERMINATION OF THIS LEASE and any substitute or additional
charges which may be imposed during the Lease term including real estate tax
increases due to a sale
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EXHIBIT B
or other transfer of the Premises as they appear on the City and County tax
bills during the Lease term, and as they become due. It is understood and
agreed that Tenant's obligation under this paragraph will be prorated to
reflect the commencement and termination dates of this Lease. In any time
during the term of this Lease a tax, excise on rents, business license tax,
or any other tax, however described, is levied or assessed against Landlord,
as a substitute or addition in whole or in part for taxes assessed or imposed
on THE PREMISES OR BUILDING Tenant shall pay and discharge ITS prorata share
of such tax or excise on rents or other tax before it becomes delinquent,
except that this provision is not intended to cover net income taxes,
inheritance, gift or estate tax imposed upon the Landlord. In the event that
a tax is placed, levied, or assessed against Landlord and the taxing
authority takes the position that the Tenant cannot pay and discharge ITS
prorata share of such tax on behalf of the Landlord, then at the sole
election of the Landlord, the Landlord may increase the rental charged
hereunder by the exact amount of such tax. TENANT SHALL HAVE THE RIGHT, AT
ANY TIME AND AT ITS EXPENSE, TO CONTEST IN GOOD FAITH BY JUDICIAL PROCEEDINGS
OR OTHERWISE ANY REAL OR PERSONAL PROPERTY ASSESSMENT, VALUATION OR TAX
DEEMED EXCESSIVE BY TENANT, AND, IF NECESSARY, TO DO SO IN THE NAME OF
LANDLORD, AND IN SUCH EVENT TENANT SHALL NOT BE OBLIGATED TO PAY SUCH
ASSESSMENT, VALUATION OR TAX UNTIL A FINAL JUDICIAL DETERMINATION OF SUCH
CONTEST, BUT SHALL POST SUCH BONDS AS REQUIRED BY LAW TO PROTECT LANDLORD
THROUGHOUT ANY SUCH CONTEST.
19. NOTICES: All notices given to Tenant may be given in writing
personally or by depositing the same in the United States mail, postage
prepaid, and addressed to Tenant AS FOLLOWS: AMDAHL CORPORATION, 1250 E.
ARQUES AVENUE, P.O. BOX 3470, SUNNYVALE, CALIFORNIA 94088-3470, ATTENTION:
MANAGER, CORPORATE REAL ESTATE. ALL NOTICES TO BE GIVEN TO THE LANDLORD
HEREUNDER MAY BE GIVEN IN WRITING, PERSONALLY OR BY DEPOSITING THE NOTICE IN
THE UNITED STATES MAIL, POSTAGE PREPAID, ADDRESSED TO THE LANDLORD AS
FOLLOWS: SOBRATO INTEREST II, 10600 NORTH DE ANZA BOULEVARD, CUPERTINO,
CALIFORNIA 95014-2031, ATTENTION: JOHN SOBRATO, JR. EITHER LANDLORD OR TENANT
MAY CHANGE ITS ADDRESS FOR NOTICES HEREUNDER BY GIVING THE OTHER PARTY
WRITTEN NOTICE OF SUCH CHANGE OF ADDRESS IN THE MANNER PROVIDED FOR NOTICES
HEREIN. All notices shall be deemed received UPON THE EARLIER OF ACTUAL
RECEIPT OR THREE (3) days after posting.
20. ENTRY BY LANDLORD: EXCEPT IN THE CASE OF EMERGENCY AND TO PROVIDE
THE SERVICES CALLED FOR IN THIS LEASE, LANDLORD AND ITS AGENTS AND EMPLOYEES
SHALL NOT ENTER THE PREMISES EXCEPT AFTER GIVING TWENTY-FOUR (24) HOUR
ADVANCE NOTICE TO TENANT. IF SUCH ENTRY MATERIALLY INTERFERES WITH TENANT'S
USE AND ENJOYMENT OF THE PREMISES FOR MORE THAN FIVE (5) CONTINUOUS BUSINESS
DAYS, TENANT SHALL HAVE THE RIGHT TO ABATE THE RENT OTHERWISE PAYABLE UNDER
THIS LEASE; AND IF SUCH INTERFERENCE SHALL CONTINUE FOR MORE THAN NINETY (90)
CONTINUOUS BUSINESS DAYS, TENANT SHALL HAVE THE RIGHT TO TERMINATE THIS
LEASE. TENANT shall permit Landlord and his agents, at any time within ninety
(90) days prior to the expiration of this Lease, to place upon said Premises
any usual or ordinary "For Sale" or "to lease" signs and exhibit the
Premises to prospective tenants at reasonable hours, AFTER GIVING REASONABLE
ADVANCE NOTICE TO TENANT OF ITS INTENT TO EXHIBIT SAME.
21. DESTRUCTION OF PREMISES: In the event of a partial destruction of
the said Premises during the said term from any cause, Landlord shall
forthwith repair the same, provided such repairs can be made within ninety
(90) days
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EXHIBIT B
under the laws and regulations of APPLICABLE State, Federal, County or
Municipal authorities, but such partial destruction shall in no way annul or
void this Lease, except that Tenant shall be entitled to a proportionate
reduction of rent while such repairs are being made, such proportionate
reduction to be based upon the extent to which the making of such repairs
shall interfere with the business carried on by Tenant in the said Premises
AND PROVIDED FURTHER, THAT IF ANY SUCH PARTIAL DESTRUCTION OF THE PREMISES
MATERIALLY INTERFERES WITH TENANT'S USE OR OCCUPANCY OF THE PREMISES AND SUCH
DESTRUCTION IS NOT REPAIRED AND THE PREMISES RESTORED WITHIN NINETY (90) DAYS
FROM THE DATE OF SUCH DESTRUCTION, TENANT SHALL HAVE THE RIGHT TO TERMINATE
THIS LEASE, AT ITS OPTION. If such repairs cannot be made in ninety (90)
days, Landlord may, at its option, make same within a reasonable time, this
Lease continuing in full force and effect and the rent to be proportionately
reduced as aforesaid in this paragraph provided, SUBJECT TO ANY RIGHT TENANT
MAY HAVE TO TERMINATE THIS LEASE BECAUSE SUCH DAMAGE MATERIALLY INTERFERES WITH
TENANT'S USE OR OCCUPANCY OF THE PREMISES. In the event that Landlord does
not elect to make such repairs, or such repairs cannot be made under such
laws and regulations, this Lease may be terminated at the option of Tenant OR
LANDLORD. In respect to any partial destruction which Landlord is obligated
to repair or may elect to repair under the terms of this paragraph, the
provision of Section 1932, Subdivision 2, and of Section 1933, Subdivision 4,
of the Civil Code of the State of California are waived by Tenant. A total
destruction of the Building in which the said Premises may be situated shall
terminate this Lease. In the event of any dispute between Landlord and Tenant
relative to the provisions of this paragraph, they shall each select an
arbitrator, the two arbitrators so selected shall select a third arbitrator
and the three arbitrators so selected shall hear and determine the
controversy and their decision thereon shall be final and binding upon both
Landlord and Tenant, who shall bear the cost of such arbitration equally
between them. In all events Landlord shall not be required to restore
additions, alterations or improvements made by Tenant or replace Tenant's
fixtures of personal property. NOTWITHSTANDING ANYTHING TO THE CONTRARY
ABOVE, IN THE EVENT OF ANY PARTIAL OR TOTAL DESTRUCTION OF THE PREMISES,
WHICH DESTRUCTION IS A RESULT OF THE NEGLIGENCE OR WILLFUL MISCONDUCT OF
LANDLORD OR LANDLORD'S AGENTS, CONTRACTORS OR EMPLOYEES, LANDLORD SHALL BE
REQUIRED, AT TENANT'S OPTION, TO EITHER (i) REPAIR, REPLACE AND RESTORE
TENANT'S IMPROVEMENTS, ALTERATIONS AND ADDITIONS TO THE PREMISES AND TENANT'S
PERSONAL PROPERTY AND FIXTURES LOCATED THEREON, TO THE EXTENT DAMAGED OR
DESTROYED, OR (ii) COMPENSATE TENANT FOR SUCH LOSSES, IN AN AMOUNT EQUAL TO
THE REPLACEMENT COST OF THE PERSONAL PROPERTY, FIXTURES, ALTERATIONS,
ADDITIONS OR IMPROVEMENTS SO DAMAGED.
22. ASSIGNMENT OR SUBLEASE: In the event Tenant should desire to assign
this Lease or sublet the Premises or any part thereof, Tenant shall give
Landlord written notice of such desire at least TEN (10) days in advance of
the date on which Tenant desires to make such assignment or sublet. The
notice shall give the name and current address of the proposed
assignee/subtenant, proposed use of the Premises, rental rate and current
financial statement; Landlord shall be given additional information as
reasonably required to determine whether it will consent to the proposed
assignment or sublease upon request to Tenant. Landlord shall then have a
period to TEN (10) days following receipt of such notice within which to
notify Tenant in writing that landlord elects (i) to permit Tenant to assign
or sublet such space to the named assignee/subtenant on the terms and
conditions set forth in the notice,
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EXHIBIT B
or (ii) refuse consent. If Landlord should fail to notify Tenant in writing
of such election within said 10-day period, Landlord shall be deemed to have
elected option (i) above. Any rent or other consideration realized by Tenant
under any such sublease and assignment in excess of the monthly rental
installments payable hereunder, less reasonable subletting and assignment
costs, shall be divided and paid SIXTY percent (60%) to Landlord and FORTY
percent (40%) to Tenant. Tenant's obligation to pay over Landlord's portion
of the consideration shall constitute an obligation for additional rent
hereunder. No assignment or subletting by Tenant shall relieve Tenant of any
obligation under this Lease. Any assignment or subletting which conflicts
with the provisions hereof shall be void.
Landlord's consent (which must be in writing and in form reasonably
satisfactory to Landlord) to the proposed assignment or sublease shall not be
unreasonably withheld or delayed, provided and upon condition that:
(a) In Landlord's reasonable judgement, the proposed assignee or
subtenant is engaged in such a business, and the Premises, or the relevant
part thereof, will be used in such a manner, the DOES NOT MATERIALLY VARY
FROM the use expressly permitted under this Lease;
(b) The proposed assignee or subtenant is a reputable company with
sufficient financial worth considering the responsibility involved, and
Landlord has been furnished with reasonable proof thereof;
(c) The proposed sublease shall be in form reasonably satisfactory to
Landlord;
(d) Tenant shall reimburse Landlord on demand for REASONABLE costs that
may be incurred by Landlord in connection with said assignment or sublease,
including the costs of making investigations as to the acceptability of the
proposed assignee or subtenant and legal costs incurred in connection with
the granting of any requested consent; and
(e) Tenant shall not have advertised or publicized in any way the
availability of the Premises without prior notice to, and approval by,
Landlord.
Such sublease or assignment shall be subject to all of the covenants,
agreements, terms, provisions and conditions contained in this Lease.
Notwithstanding any such sublease or assignment and the acceptance of rent or
additional rent by Landlord from any subtenant or assignee, Tenant shall and
will remain fully liable for the payment of the rent and additional rent due,
and to become due, hereunder, for the performance of all of the covenants,
agreements, terms, provisions and conditions contained in this Lease on the
part of Tenant to be performed and for all acts and omissions of any
licensee, subtenant, assignee or any other person claiming under or through
any subtenant, that shall be in violation of any of the obligations of this
Lease, and any such violation shall be deemed to be a violation by Tenant.
Tenant shall further indemnify, defend and hold Landlord harmless from and
against any and all losses, liabilities, damages, costs and expenses
(including reasonable
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EXHIBIT B
attorney fees) resulting from any claims that may be made against Landlord by
the proposed assignee or subtenant or by any real estate brokers or other
persons claiming a commission or similar compensation in connection with the
proposed assignment or sublease. In the event of Tenant's default, Tenant
hereby assigns all rents due from any assignment or subletting to Landlord
as security for performance of its obligations under this Lease and Landlord
may collect such rents except that Tenant may collect such rents unless a
default occurs.
Any assignment or transfer shall be made only if and shall not be
effective until the assignee shall execute, acknowledge and deliver to
Landlord an agreement, in form and substance satisfactory to Landlord,
whereby the assignee shall assume all of the obligations of this Lease on the
part of Tenant to be performed or observed, SUBJECT, HOWEVER, TO THE
AGREEMENT OF LANDLORD THAT SUCH SUBTENANT OR ASSIGNEE SHALL AND MAY PEACEABLY
AND QUIETLY HAVE, HOLD AND ENJOY THE PREMISES OR A PORTION THEREOF DURING THE
TERM OF THE SUBLEASE WITHOUT ANY HINDERANCE FROM ANY PERSON WHOMSOEVER.
The termination of this Lease due to Tenant's default shall not
automatically terminate any assignment or sublease then in existence. At the
election of Landlord, the assignee or subtenant shall attorn to Landlord and
Landlord shall undertake the obligations of the Tenant under the sublease or
assignment; provided the Landlord shall not be liable for prepaid rent,
security deposits or other defaults of the Tenant to the subtenant or
assignee.
23. CONDEMNATION. If any part of the Premises shall be taken for any
public or quasi-public use, under any statute or by right of eminent domain
or private purchase in lieu therof, and a part thereof remains which is
susceptible of USE BY TENANT FOR THE PURPOSES CONTEMPLATED HEREUNDER, IN
TENANT'S REASONABLE JUDGEMENT, this Lease shall as to the part so taken,
terminate as of the date title shall vest in the condemnor or purchaser, and
the rent payable hereunder shall be adjusted so that the Tenant shall be
required to pay for the remainder of the term only such portion of such rent
as the value of the part remaining after such taking bears to the value of
the entire Premises prior to such taking; but in such event TENANT shall have
the option to terminate this Lease as of the date when title to the part so
taken vests in the condemnor or purchaser. If all of the Premises, or such
part thereof be taken so that IN THE REASONABLE JUDGMENT OF TENANT, TENANT
BELIEVES THAT SUCH TAKING SUBSTANTIALLY INTERFERES WITH ITS ABILITY TO USE
THE PREMISES IN THE MANNER CONTEMPLATED HEREBY, this Lease shall thereupon
terminate. If a part or all of the Premises be taken, all compensation
awarded upon such taking shall go to the Landlord EXCEPT THAT TENANT SHALL
HAVE THE RIGHT TO RECEIVE ANY AND ALL PROCEEDS, AWARDS, DAMAGES OR OTHER
COMPENSATION SEPARATELY AWARDED IN CONNECTION WITH SUCH TAKING OR
CONDEMNATION TO THE EXTENT THAT ANY SUCH PROCEEDS, AWARDS, DAMAGES OR OTHER
COMPENSATION IS SEPARATELY AWARDED AS COMPENSATION FOR (i) ALTERATIONS,
ADDITIONS AND IMPROVEMENTS TO THE PREMISES TO THE EXTENT PAID FOR BY TENANT,
(ii) ANY ALTERATIONS, ADDITIONS, IMPROVEMENTS OR REPLACEMENTS MADE BY OR AT
THE EXPENSE OF TENANT, (iii) TENANT'S RELOCATION COSTS, (iv) LOSS OF TENANT'S
GOODWILL, OR (v) ANY COMPENSATION PAYABLE TO TENANT BY REASON OF THE PAYMENT
BY TENANT OR RENT IN EXCESS OF THE RENT PAYABLE BY TENANT UNDER THIS LEASE IN
ORDER TO OBTAIN ALTERNATE SPACE. IN ANY EVENT TENANT SHALL HAVE THE RIGHT TO
MAKE IT'S OWN CLAIM TO THE CONDEMING AUTHORITY. NOTWITHSTANDING ANYTHING TO
THE CONTRARY CONTAINED HEREIN, IF THE
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EXHIBIT B
TEMPORARY USE OR OCCUPANCY OF ANY PART OF THE PREMISES SHALL BE TAKEN OR
APPROPRIATED UNDER POWER OF EMINENT DOMAIN DURING THE TERM OF THIS LEASE,
TENANT WILL HAVE THE RIGHT TO A PROPORTIONAL ABATEMENT OF THE RENT OTHERWISE
PAYABLE UNDER THIS LEASE FOR THE PERIOD OF TIME DURING WHICH TENANT IS UNABLE
TO USE OR ENJOY THE PREMISES; AND IF SUCH TEMPORARY APPROPRIATION OR TAKING
MATERIALLY INTERFERES WITH TENANT'S USE AND ENJOYMENT OF THE PREMISES FOR
NINETY (90) CONTINUOUS BUSINESS DAYS, TENANT SHALL HAVE THE RIGHT TO
TERMINATE THIS LEASE. TENANT SHALL HAVE THE RIGHT TO RECEIVE ANY CONDEMNATION
AWARD OR PAYMENT IN LIEU THEREOF OR AWARD FOR DAMAGES PAID IN CONNECTION WITH
ANY TEMPORARY APPROPRIATION TO THE SAME EXTENT AS PROVIDED ABOVE FOR A
PERMANENT APPROPRIATION. Tenant hereby waives the provisions of California
Code of Civil Procedures Section 1265.130.
24. EFFECTS OF CONVEYANCE: The term "Landlord" as used in this Lease,
means only the owner for the time being of the land and Building, containing
the Premises, so that, in the event of any sale of said land or Building, or
in the event of a master lease of the Building, the Landlord shall be and
hereby is entirely freed and relieved of all covenants and obligations of the
Landlord hereunder, SO LONG AS THE TRANSFEREE FROM LANDLORD OF THE PREMISES
OR THE BUILDING, WHETHER A MASTER TENANT OR A PURCHASER, EXPRESSLY ASSUMES
ALL OF LANDLORD'S COVENANTS, OBLIGATIONS AND LIABILITIES UNDER THE LEASE.
Landlord shall transfer and deliver Tenant's security deposit, to the
purchaser at any such sale or the master tenant of the Building, and
thereupon the Landlord shall be discharged from any further liability in
reference thereto.
25. SUBORDINATION: In the event Landlord notifies Tenant in writing,
this Lease shall be subordinate to any ground lease, deed of trust, or other
hypothecation for security now or hereafter placed upon the real property of
which the Premises are a part and to any and all advances made on the security
thereof and to renewals, modifications, replacements and extensions thereof.
Tenant agrees to promptly execute any documents which may be required to
effectuate such subordination SUBJECT TO THE AGREEMENT OF LANDLORD'S TRANSFEREE,
WHETHER A BENEFICIARY UNDER A DEED OF TRUST, A GROUND LESSEE, OR OTHERWISE, THAT
TENANT SHALL AND MAY PEACEABLY AND QUIETLY HAVE, HOLD AND ENJOY THE PREMISES
DURING THE TERM OF THIS LEASE WITHOUT ANY HINDRANCE FROM ANY PERSON WHOMSOEVER.
Notwithstanding such subordination, Tenant's right to quiet possession of the
Premises shall not be disturbed if Tenant is not in default and so long as
Tenant shall pay the rent and observe and perform all of the provisions of this
Lease. At the request of any lender, Tenant agrees to execute and deliver any
reasonable modifications of this Lease which do not materially adversely affect
the leasehold or Tenant's rights hereunder.
26. WAIVER: The waiver by Landlord of any breach of any term, covenant
or condition, herein contained shall not be deemed to be a waiver of such term,
covenant or condition or any subsequent breach of the same or any other term,
covenant or condition herein contained. The subsequent acceptance of rent
hereunder by Landlord shall not be deemed to be a waiver of any preceding breach
by Tenant of any term, covenant or condition of this Lease, other than the
failure of Tenant to pay the particular rental so accepted, regardless of
Landlord's knowledge of such preceding breach at the time of acceptance of such
rent.
14
<PAGE>
EXHIBIT B
27. HOLDING OVER: Any holding over after the termination or expiration of
the said term, shall be construed to be a hold over tenancy and Tenant shall pay
rent to Landlord at a rate equal to two (2) times the monthly rental installment
due in the month preceding the termination or expiration of the Lease and shall
otherwise be on the terms and conditions herein specified, except those
provisions relating to the term and any options to extend or renew.
28. SUCCESSOR AND ASSIGNS: The covenants and conditions herein contained
shall, subject to the provisions as to assignment, apply to and bind the heirs,
successors, executors, administrators and assigns of all the parties hereto; and
all of the parties hereto shall be jointly and severally liable hereunder.
29. ESTOPPEL CERTIFICATES: Tenant shall at any time during the term of
this Lease, upon not less than five (5) days prior written notice from Landlord,
execute and deliver to Landlord a statement in writing certifying, TO THE BEST
OF TENANT'S KNOWLEDGE, that this Lease is unmodified and in full force and
effect (or, if modified, stating the nature of such modification) and the date
to which the rent and other charges are paid in advance, if any, and
acknowledging that there are not, to Tenant's knowledge, any uncured defaults on
the part of Landlord hereunder or specifying such defaults if they are claimed.
ANY SUCH CERTIFICATE SHALL CONTAIN LANGUAGE SUCH THAT (1) TENANT IS NOT
OBLIGATED TO MAKE AND HAS MADE NO INDEPENDENT INVESTIGATION OF THE FACTS AND (2)
NOTHING THEREIN SHALL BE DEEMED TO BE A WAIVER OF ANY RIGHT OR CAUSE OF ACTION
BASED ON ANY FACT OF WHICH TENANT HAS NO KNOWLEDGE DUE TO THE LANDLORD'S
CONCEALMENT OF OR FAILURE TO DISCLOSE SUCH FACT.
30. OPTION TO EXTEND: Tenant shall have the option and right to extend
the term of this Lease for ONE (1) separate additional and successive option
period of FIVE (5) years, at AN AMOUNT EQUAL TO NINETY PERCENT (90%) OF "Fair
Market Value", only under the following conditions precedent: (i) THAT AT BOTH
THE TIME TENANT EXERCISES ITS OPTION BY SENDING WRITTEN NOTICE TO LANDLORD AND
ALSO UPON THE DATE THE OPTION TERM IS TO COMMENCE, TENANT SHALL NOT BE IN
DEFAULT UNDER ANY OF THE TERMS OF THIS LEASE AND AT BOTH SUCH TIMES NO EVENT
SHALL HAVE OCCURRED WHICH BUT FOR THE GIVING OF NOTICE OR THE PASSAGE OF TIME
WOULD CONSTITUTE AN EVENT OF DEFAULT HEREUNDER, AND (ii) Tenant has delivered
written notice by certified mail to Landlord not less than one hundred and
twenty (120) days prior and not more than one hundred and eighty (180) days
prior to the expiration of the then existing term of the Lease of Tenant's
intention to extend the term of the Lease.
"Fair Market Value" shall mean the going market rental as of the date of
any extension of this Lease for equivalent space of similar age, location, and
construction, with improvements and equipment in similar condition and for a
lessee proposing to sign a five (5) year lease and having financial
qualifications similar to Tenant, it being understood that in determining "Fair
Market Value" the parties shall negotiate in good faith in order to reach
agreement; and in the event the parties are unable to reach agreement, the
matter shall be referred to arbitration by three (3) M.A.I. appraisers,
experienced in the evaluation of similar rental properties in the County of
Santa Clara, State of California. Landlord and Tenant shall each appoint one
such arbitrator within thirty (30) days of written request for arbitration
15
<PAGE>
EXHIBIT B
from the other, and the two arbitrators so selected shall select a third
arbitrator within fifteen (15) days after the selection of the second
arbitrator. The determination of the three arbitrators shall be made by the vote
of two (2) or more of the three arbitrators within thirty (30) days from the
date of the appointment of the third arbitrator and shall be final for all
purposes. The cost of arbitration shall be shared equally.
31. OPTIONS: In the event that Tenant hereunder has any multiple options
to extend this Lease, a later option to extend the Lease cannot be exercised
unless the prior option has been so exercised. No option may be exercised at a
time when the Tenant is in default under its obligations under this Lease.
32. QUIET ENJOYMENT: LANDLORD REPRESENTS ND WARRANTS THAT IT HAS FULL
RIGHT AND AUTHORITY TO ENTER INTO THIS LEASE AND THAT upon Tenant's faithful and
timely performance of all the terms and covenants of the Lease, Tenant shall
quietly have and hold the Premises for the term and any extensions thereof.
33. BROKERS: Tenant represents it has not utilized or contacted a real
estate broker or finder with respect to this Lease and Tenant agrees to
indemnify and hold Landlord harmless against any claim, cost, liability or cause
of action asserted by any broker or finder claiming through Tenant. LANDLORD
REPRESENTS THAT IT HAS NOT UTILIZED OR CONTACTED A REAL ESTATE BROKER OR FINDER
WITH RESPECT TO THIS LEASE AND LANDLORD AGREES TO INDEMNIFY AND HOLD TENANT
HARMLESS AGAINST ANY CLAIM, COST, LIABILITY OR CAUSE OF ACTION ASSERTED BY ANY
BROKER OR FINDER CLAIMING THROUGH LANDLORD.
34. CONSENTS: IF ANY PROVISION OF THIS LEASE REQUIRES THE CONSENT,
APPROVAL OR AGREEMENT OF THE LANDLORD, LANDLORD SHALL NOT UNREASONABLY WITHHOLD
SUCH CONSENT, APPROVAL OR AGREEMENT.
35. MISCELLANEOUS PROVISIONS: All rights and remedies hereunder are
cumulative and not alternative to the extent permitted by law and are in
addition to all other rights and remedies in law and in equity.
This Lease shall not be amended or modified except in writing, signed by
both parties.
If any term or provision of this Lease is held unenforceable or invalid by
a court of competent jurisdiction, the remainder of the Lease shall not be
invalidated thereby but shall be enforceable in accordance with its terms,
omitting the invalid or unenforceable term.
This Lease shall be governed by and construed in accordance with California
law.
All sums due hereunder, including rent and additional rent, if not paid
when due, shall bear interest at the maximum rate permitted under California law
accruing from the date due until the date paid to Landlord.
Time is of the essence hereunder.
16
<PAGE>
EXHIBIT B
The headings or titles to the paragraphs of this Lease are not a part of
this Lease and shall have no effect upon the construction or interpretation of
any part thereof. This instrument contains all of the agreements and conditions
made between the parties hereto and may not be modified orally or in any other
manner than by an agreement in writing signed by all of the parties hereto or
their respective successors in interest.
IN WITNESS WHEREOF, Landlord and Tenant have executed these presents, the
day and year first above written.
LANDLORD TENANT
SOBRATO INTERESTS II AMDAHL CORPORATION
a California General Partnership a Delaware Corporation
BY: /s/ (illegible) BY: /s/ E. S. Hartford
-------------------------------- --------------------------------
John A. & Susan R. Sobrato 1979 E. S. HARTFORD
Revocable Trust
ITS: VICE PRESIDENT, CORPORATE
ITS: GENERAL PARTNER FACILITIES
------------------------------ --------------------------------
17
<PAGE>
EXHIBIT 11.1
ZORAN CORPORATION
COMPUTATION OF NET INCOME PER SHARE
(IN THOUSANDS, EXCEPT PER SHARE DATA)
(UNAUDITED)
THREE MONTHS ENDED
MARCH 31,
--------------------
1997 1996
-------- --------
Weighted average common shares outstanding 9,103 8,702
Dilutive effect of stock options and warrants
based on the treasury stock method 1,967 1,473
------- -------
Weighted average common shares and equivalents 11,070 10,175
------- -------
------- -------
Net income $ 677 $ 661
------- -------
------- -------
Net income per share $ 0.06 $ 0.06
------- -------
------- -------
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONSOLIDATED INCOME STATEMENTS. THE CONSOLIDATED BALANCE SHEETS AND THE
ACCOMPANYING NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS, AND IS QUALIFIED IN
ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> MAR-31-1997
<CASH> 9,741
<SECURITIES> 11,865
<RECEIVABLES> 10,300
<ALLOWANCES> 1,025
<INVENTORY> 1,039
<CURRENT-ASSETS> 33,449
<PP&E> 9,748
<DEPRECIATION> 5,368
<TOTAL-ASSETS> 37,829
<CURRENT-LIABILITIES> 8,590
<BONDS> 0
0
0
<COMMON> 9
<OTHER-SE> 29,230
<TOTAL-LIABILITY-AND-EQUITY> 37,829
<SALES> 6,316
<TOTAL-REVENUES> 10,067
<CGS> 3,526
<TOTAL-COSTS> 3,526
<OTHER-EXPENSES> 5,916
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> 903
<INCOME-TAX> 226
<INCOME-CONTINUING> 677
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 677
<EPS-PRIMARY> 0.06
<EPS-DILUTED> 0.06
</TABLE>
