{"id":41842,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/10590-n-tantau-avenue-cupertino-ca-assignment-agreement.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"10590-n-tantau-avenue-cupertino-ca-assignment-agreement","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/land\/10590-n-tantau-avenue-cupertino-ca-assignment-agreement.html","title":{"rendered":"10590 N. Tantau Avenue (Cupertino, CA) Assignment Agreement &#8211; Passage Systems Inc. and Concentric Network Corp."},"content":{"rendered":"<pre>                             ASSIGNMENT AGREEMENT\n\n     THIS ASSIGNMENT AGREEMENT (this 'Assignment') is made as of December 6,\n1996, between Passage Systems, Inc., a California corporation ('Assignor') and\nConcentric Network Corporation, a Florida corporation ('Assignee').\n\n                                   RECITALS\n\nA.   Spieker-French #130, Limited Partnership, a Texas limited partnership\n('Master Landlord') and Tandem Computers, Inc., a Delaware corporation\n('Sublandlord') entered into that certain written Lease and Amendment Number One\ndated January 26, 1988 and Extension Agreement dated March 23, 1993\n(collectively, the 'Master Lease'), whereby Master Landlord leased to\nSublandlord the premises located at 10590 Tantau Avenue, Cupertino, California\n(the 'Master Premises').\n\nB.   Sublandlord and Assignor entered into that certain written Sublease dated\nApril 25, 1995 (the 'Sublease'), whereby Sublandlord subleased to Assignor a\nportion of the Master Premises (the 'Subleased Premises'), as more particularly\ndescribed in the Sublease.  A complete copy of the Sublease is attached hereto\nas Exhibit A and made a part hereof.\n   ---------                        \n\nC.   Subject to the limitations set forth herein, Assignor desires to assign all\nof its rights, title and interest under the Sublease to Assignee, and Assignee\ndesires to assume all of Assignor's rights and obligations under the Sublease\nwhich accrue or are to be performed on or after the Commencement Date (as\ndefined below).\n\nIn consideration of the mutual covenants contained herein and for other good and\nvaluable consideration, the parties hereto agree as follows:\n\n1.   Assignment:  For the consideration set forth below and subject to the\n     ----------                                                           \nlimitations contained herein, Assignor hereby grants to Assignee, from and after\nthe Commencement Date, all of Assignor's rights, title and interest under the\nSublease and the Subleased Premises for the remaining term of the Sublease,\nexcept for any obligations of Assignor under the Sublease arising out of any\naction, occurrence, inaction or condition undertaken or existing on or prior to\nthe Commencement Date, which obligations Assignor shall perform.  For purposes\nof this Assignment, 'Commencement Date' shall mean the date by which all of the\nfollowing have occurred: (a) Master Landlord and Sublandlord have each delivered\nto Assignor and Assignee the written consents required by Section 7 hereof, (b)\nAssignor has delivered possession of the Subleased Premises to Assignee clean\nand free of debris, with all sidewalks, parking lot, plumbing, electrical, HVAC,\nroof and all other building systems serving the Subleased Premises, in good\nworking order, repair and condition.  Assignor shall use diligent efforts to\ndeliver possession of the Subleased Premises to Assignee as soon as reasonably\npossible; provided, however, that if for any reason whatsoever the Commencement\nDate does not occur on or before February 15, 1997, then in addition to any\nother rights or remedies that Assignee may have, Assignee may at any time until\nthe Commencement Date has occurred terminate this Assignment by delivery of\nwritten notice to Assignor, whereupon any monies previously paid by Assignee to\nAssignor (including, without limitation, the Assignment Fee set forth below in\nSection 1.1) shall promptly be reimbursed to Assignee, together with interest\nthereon from the date of the termination until paid at two percent (2%) plus the\n'prime rate' (the 'reference rate' or 'prime rate' quoted from time to time by\nthe Bank) charged by Bank of America N.T. &amp; S.A. ('Bank') or the highest rate\npermitted by law, whichever is less (herein the 'Interest Rate'); provided\nfurther, however, that if the Commencement Date has not occurred on or before\nFebruary 15, 1997 through no fault of Assignor and Assignor has otherwise\nsatisfied its obligations under this Assignment, then Assignor may subtract from\nthe foregoing reimbursement to Assignee and retain the initial Twenty-Five\nThousand Dollar ($25,000) deposit it received from Assignee.\n\n     1.1  To help alleviate Assignor's moving and relocation expenses and as\nconsideration for this Assignment, Assignee has paid or will pay to Assignor the\nfollowing amounts (hereinafter referred to as the 'Assignment Fee'), subject to\nthe terms and conditions set forth herein: (i) Twenty-Five Thousand Dollars\n($25,000) upon the approval of the Assignment by Assignee's Board of Directors\n(the payment of which Assignee has previously made to Assignor and which\nAssignor acknowledges that it has received), (ii) Two Hundred Seventy-Three\nThousand Dollars ($273,000) upon the mutual execution and delivery of this\nAssignment by Assignor and Assignee, (iii) upon the Commencement Date, Assignee\nshall pay Fourteen Thousand Dollars ($14,000) as consideration for Assignor's\nassignment hereunder to Assignee of all of Assignor's rights and interest in and\nto the security deposit under the Sublease, and (iv) if and only if the\nCommencement Date shall have occurred on or before January 15, 1997, then\nAssignee will pay an additional One Hundred Fifty Thousand Dollars ($150,000) to\nAssignor on January 15, 1997.  The amount of the Assignment Fee is based in part\non the assumption that the Commencement Date will occur on or before January 15,\n1997 and that the Sublease term will extend through April 30, 1998; hence, if\nthe Sublease is terminated for any reason (other than a default by Assignee)\nprior to April 30, 1998, then Assignor shall reimburse promptly to Assignee a\nportion of the Assignment Fee (excluding the security deposit reimbursement),\nwhich portion shall be determined by multiplying fifty percent (50%) of the\ntotal amount of the Assignment Fee (excluding the security deposit\nreimbursement) by a fraction, the numerator of which shall be the number of full\ncalendar months which would have remained in the Sublease term had the Sublease\nnot been terminated and the denominator of which shall be the total number of\nfull calendar months remaining in the Sublease term computed as of the\nCommencement Date.\n\n2.   Acceptance and Assumption:  Assignee hereby accepts the foregoing\n     -------------------------                                        \nassignment of the Sublease and Assignor's rights thereunder; provided, however,\nthat Assignee shall not assume, and shall have no liability with respect to, any\nobligations of Assignor under the Sublease arising out of any action,\noccurrence, inaction or condition undertaken or existing on or prior to the\nCommencement Date.  From and after the Commencement\n\n                                       1\n\n \nDate, Assignee shall make all payments to Sublandlord of Base Monthly Rent (in\nno event shall any such payment exceed the amount due pursuant to Section 9 of\nthe Sublease), and Operating Expense Increases (as defined in the Sublease)\nrequired to be paid by the 'Subtenant' under the Sublease accruing from and\nafter the Commencement Date. Operating Expense Increases and any other amounts\nowed by the 'Subtenant' under the Sublease shall be prorated as of the\nCommencement Date. If the proration cannot be calculated accurately on the\nCommencement Date, then it shall be calculated as soon thereafter as is\nfeasible, and any sums owed shall bear interest at the rate of ten percent (10%)\nor the highest amount allowed by law, whichever is less, if payment is not made\nby the responsible party within ten (10) days after the responsible party's\nreceipt of a written request from the other party for any amounts owed.\n\n3.   Assignor's Representations: Assignor represents and warrants to Assignee\n     --------------------------                                              \n(as of the date of this Assignment and again as of the Commencement Date) as\nfollows:\n\n     3.1  The Sublease has not been modified, amended, supplemented, terminated,\nextended or renewed.\n\n     3.2  Assignor has not previously assigned the Sublease or sublet the\nSubleased Premises\nor any portion thereof or entered into any agreement permitting any person or\nentity to use or occupy any portion of the Subleased Premises.\n\n     3.3  To the best knowledge of Assignor, Sublandlord has not assigned or\nencumbered its interest in the Sublease or the Subleased Premises.\n\n     3.4  To the best knowledge of Assignor, the Subleased Premises comply with\nall applicable laws, insurance underwriters' requirements, and all sidewalks,\nparking lots, plumbing, electrical, HVAC, roof and all other building systems\nserving the Subleased Premises, are in good working order, repair and water-\ntight condition.\n\n     3.5  To the best knowledge of Assignor, neither Sublandlord nor Master\nLandlord is a debtor in any bankruptcy proceeding or the subject of any state\ninsolvency proceeding.\n\n     3.6  The Sublease, and to the best knowledge of Assignor, the Master Lease,\nare in full force and effect and there exists no default under the Sublease nor,\nto the best knowledge of Assignor, the Master Lease, on the part of Assignor,\nMaster Landlord or Sublandlord, nor to the best knowledge of Assignor has any\nevent occurred which, with the giving of notice or the passage of time or both,\ncould constitute a breach or default by either Assignor, Sublandlord or Master\nLandlord under either the Sublease or Master Lease.\n\n     3.7  Assignor has paid all Base Monthly Rent, Operating Expense Increases\nand other charges due under the Sublease and has deposited Fourteen Thousand\nDollars ($14,000) with Sublandlord as a security deposit under the Sublease.\n\n     3.8  Assignor is a corporation in good standing under California law and\nthe person signing this Assignment on behalf of Assignor has the full power and\nauthority to bind Assignor to this Assignment.\n\n     3.9  Assignor has not made any alterations or improvements to the Subleased\nPremises without the written approval of both Master Landlord and Sublandlord,\nand Assignor will not make any alterations or improvements to the Subleased\nPremises prior to the Commencement Date.\n\n     3.10 To the best knowledge of Assignor, no hazardous materials (including,\nwithout limitation, asbestos) are located on or about the Subleased Premises in\nviolation of applicable environmental laws.\n\n     3.11 To the best knowledge of Assignor, no pending or threatened litigation\nexists which may affect Assignee's use of or operations on the Subleased\nPremises.\n\n4.   Assignee's Representations: Assignee represents that it is a corporation in\n     --------------------------                                                 \ngood standing under Florida law and is qualified to transact interstate business\nin California and the person signing this Assignment on behalf of Assignee has\nthe full power and authority to bind Assignee to this Assignment.\n\n5.   Indemnity:\n     --------- \n\n     5.1  Assignor shall indemnify, defend (with counsel reasonably acceptable\nto Assignee), protect and hold harmless Assignee and its officers, employees,\nshareholders, agents and assigns from and against all claims, demands, losses,\ncosts (including attorney's fees and costs) or liabilities (i) arising under the\nSublease as a consequence of Assignor's breach or default of the obligations on\nits part to be performed under the Sublease prior to the Commencement Date, or\nas a result of any action, occurrence, inaction or condition undertaken or\nexisting with respect to Assignor's or any of its agents', contractors',\nemployees', invitees' use or occupancy of the Subleased Premises prior to the\nCommencement Date, or (ii) arising from the breach of any of Assignor's\ncovenants, representations or obligations under this Assignment.  The foregoing\nprovisions shall survive the expiration or termination of the Sublease or this\nAssignment.\n\n     5.2  Assignee shall indemnify, defend (with counsel reasonably acceptable\nto Assignee), protect and hold harmless Assignor and its officers, employees,\nshareholders, agents and assigns from and against all claims, demands, causes of\naction, costs (including attorney's fees and costs) or liabilities (i) arising\nunder the Sublease as a consequence of Assignee's breach or default of the\nobligations on its part to be performed under the Sublease on or after the\nCommencement Date, or as a result of any action, occurrence, inaction or\ncondition undertaken or\n\n                                       2\n\n \nexisting with respect to Assignee's or any of its agents', contractors',\nemployees', invitees' use or occupancy of the Subleased Premises on or after the\nCommencement Date, or (ii) arising from the breach of any of Assignee's\ncovenants or representations under this Assignment. The foregoing provisions\nshall survive the expiration or termination of the Sublease or this Assignment.\n\n6.   Waiver of Subrogation: The waiver of subrogation provisions set forth as\n     ---------------------                                                   \nAddendum No. 7 of (and attached to) the original form of the Master Lease shall\nbe deemed a four-party agreement binding among and inuring to the benefit of\nAssignor, Assignee and, by their respective consent hereto, Master Landlord and\nSublandlord.\n\n7.   Conditions Precedent:  Assignor shall use diligent efforts to obtain the\n     --------------------                                                    \nwritten consent of both Landlord and Sublandlord to this Assignment, which\nconsents shall acknowledge and confirm that (i) Landlord and Sublandlord,\nrespectively, accept the waiver of subrogation provisions set forth in Section\n6, (ii) neither Sublandlord nor Master Landlord, as applicable, have any\nknowledge of any breach or default by Assignor, Sublandlord or Master Landlord\nunder the Sublease or Master Lease and that the Sublease and Master Lease are in\nfull force and effect, and (iii) the Base Monthly Rent amounts payable pursuant\nto Section 9 of the Sublease shall remain unchanged after the Commencement Date.\nIf Assignor does not obtain both Landlord's and Sublandlord's written consent to\nthis Assignment with all the foregoing acknowledgments and confirmations within\ntwenty (20) days after the execution of this Assignment by Assignee, then at any\ntime thereafter until such consents are obtained, Assignee may terminate this\nAssignment by written notice to Assignor, whereupon any monies previously paid\nby Assignee to Assignor (including, without limitation, the Assignment Fee set\nforth below in Section 1.1) shall promptly be reimbursed to Assignee, together\nwith interest thereon from the date of the termination until paid at the\nInterest Rate; provided, however, that if Assignor has used diligent efforts to\nattempt to obtain Sublandlord's and Master Landlord's consent and has otherwise\nsatisfied its obligations under this Assignment, then Assignor may subtract from\nthe foregoing reimbursement to Assignee and retain the initial Twenty-Five\nThousand Dollar ($25,000) deposit it received from Assignee.\n\n8.   Brokers:  Assignor shall be solely responsible for any and all brokerage\n     -------                                                                 \ncommissions or fees, if any, due to any real estate broker engaged by either\nAssignor or Assignee in connection with this transaction.\n\n9.   Security Deposit:  By its consent hereto, Sublandlord agrees that from and\n     ----------------                                                          \nafter the Commencement Date all sums due and owing by it to the 'Subtenant'\nunder the Sublease upon the expiration or earlier termination of the Sublease,\nincluding, without limitation, all sums due and owing with respect to the\nsecurity deposit, shall be paid to Assignee.\n\n10.  Notices:  Unless at least five (5) days' prior written notice is given in\n     -------                                                                  \nthe manner set forth in this paragraph, the address of each party for all\npurposes connected with this Assignment shall be that address set forth below\ntheir signatures at the end of this Assignment.  All notices, demands or\ncommunications in connection with this Assignment shall be (i) personally\ndelivered; or (ii) properly addressed and (a) submitted to an overnight courier\nservice, charges prepaid, or (b) deposited in the mail (registered or certified,\nreturn receipt requested, and postage prepaid).   Notices shall be deemed\neffective upon receipt or refusal to accept delivery.\n\n11.  Miscellaneous: This Assignment shall be governed by California law and\n     -------------                                                         \nshall be binding upon and shall inure to the benefit of the parties hereto and\ntheir successors and assigns.  If either party shall bring any action or legal\nproceeding for an alleged breach of any provision of this Assignment, to recover\nrent, to terminate this Assignment or to otherwise enforce, protect or establish\nany term or covenant of this Assignment or right of either party, then the\nprevailing party shall be entitled to recover as a part of such action or\nproceedings, or in a separate action brought for that purpose, reasonable\nattorneys' fees and court costs as may be fixed by the court. Time is of the\nessence with respect to the performance of every provision of this Assignment in\nwhich time of performance is a factor.  The captions used in this Assignment are\nfor convenience only and shall not be considered in the construction or\ninterpretation of any provision hereof.  This Assignment may be executed in\ncounterparts, each of which shall constitute an original and all of which\ntogether shall constitute one instrument.  The language in all parts of this\nAssignment shall in all cases be construed as a whole according to its fair\nmeaning, and not strictly for or against either Assignor or Assignee.  When a\nparty is required to do something by this Assignment, it shall do so at its sole\ncost and expense without right of reimbursement from the other party unless\nspecific provision is made therefor.   Assignor shall not become or be deemed a\npartner nor a joint venturer with Assignee by reason of the provisions of this\nAssignment.  This Assignment shall supersede any and all prior agreements\nbetween Assignor and Assignee (including, without limitation any letters of\nintent) with respect to the Subleased Premises and no subsequent change or\naddition to this Assignment shall be binding unless in writing and signed by\nAssignor and Assignee.\n\n     IN WITNESS WHEREOF, the parties hereto have caused this Assignment to be\nproperly executed as of the day and year first above written.\n\nASSIGNOR:                                ASSIGNEE:\nPASSAGE SYSTEMS, INC.                    CONCENTRIC NETWORK\na California corporation                 CORPORATION, a Florida corporation\n\nBy \/s\/Vance Nakamoto                     By Michael F. Anthofer\n   -----------------------------            ------------------------------\nName Vance Nakamoto                      Name Michael F. Anthofer\n     ---------------------------              ----------------------------\nIts President                            Its SVP &amp; CFO\n    ----------------------------             -----------------------------\nAddress 10596 N. Tantau Ave.             Address 10590 N. Tantau Ave.\n        ------------------------                 -------------------------\n      Cupertino, CA 95014                        Cupertino, CA 95014\n      --------------------------                 -------------------------\n\n                                       3\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7174,7468],"corporate_contracts_industries":[9489,9519],"corporate_contracts_types":[9583,9579],"class_list":["post-41842","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-concentric-network-corp","corporate_contracts_companies-equity-office-properties-trust","corporate_contracts_industries-real__reits","corporate_contracts_industries-telecommunications__telephone","corporate_contracts_types-land__ca","corporate_contracts_types-land"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/41842","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=41842"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41842"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41842"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41842"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}