EXHIBIT 10.7
Renault & Xxxxxxx
INDUSTRIAL & COMMERCIAL REAL ESTATE
This LEASE, executed in duplicate at Palo Alto, California, this 5th
PARTIES day of August, 1998 by and between
Renault & Xxxxxxx Solar Xxxxx Joint Venture
and
Cobalt Networks, Inc., a California corporation
hereinafter called respectively Lessor and Lessee, without regard to
number or gender.
PREMISES 1. Witnesseth: That Lessor hereby leases to Lessee, and Lessee hires
from Lessor, those certain premises, hereinafter in this lease
designated as "the Premises," with the appurtenances, situated in the
City of Mountain View, County of Santa Xxxxx, State of California, and
more particularly described as follows, to-wit:
An approximate 28,137 sf industrial building commonly referred to as
000 Xxxxx Xxxxxx.
USE 2. The Premises shall be used and occupied by Lessee for the purpose
of general office, sales, service, engineering, research &
development, manufacturing and any related lawful purpose in
conformity to municipal zoning requirements and any CC&R applicable to
the property. and for no other purpose without the prior written
consent of Lessor.
TERM 3. The term shall be for five (5) years, commencing on the 1/st/ day
of January, 1999 and terminating on the 31/st/ day of December 2003.
RENTAL 4. Rent shall be payable to the Lessor without deduction or offset
initially at 0000 X0 Xxxxxx Xxxx, Xxxx Xxxx, XX 00000 or at such place
or places as may be designated from time to time by the Lessor as
follows:
Twenty Five Thousand and No/100ths Dollars ($25,000.00) upon execution
of the lease, representing partial rental due January 1, 1999. Thirty
Five Thousand Four Hundred Ninety Five and No/100ths Dollar
($35,495.00) shall be due on November 1, 1998, representing the
balance of the rental due on January 1, 1999. Sixty Thousand Four
Hundred Ninety Five and No/100ths ($60,495.00) shall be due on
February 1, 1999. and on the 1/st/ day of each and every month through
December 1, 1999. Sixty, One Thousand Nine Hundred One and No/100ths
Dollars ($61,901.00) shall be due on January 1, 2000 and on the 1/st/
day of each and every month through December 1, 2000. Sixty Six
Thousand One Hundred Twenty Two and No/100ths Dollars ($66, 122.00)
shall be due on January 1, 2001 and on the 1/st/ day of each and every
month through December 1,2001. Sixty Eight Thousand Nine Hundred
Thirty Five and No/100ths Dollars ($68,935.00) shall be due on January
1, 2002 and on the 1/st/ day of each and every month through December
1, 2002. Seventy Thousand Three Hundred Forty Three and No/100ths
Dollars $70,343.00 shall be due on January 1, 2003 and on the 1/st/
day of each and every month through December 1, 2003.
SECURITY 5. On January 1, 1999, Lessee shall with Lessor Seventy Thousand
DEPOSIT Three Hundred Forty Three Dollars and No/l00ths ($70,343,00) as
security for the full and faithful performance of each and every
term, provision, covenant and condition of this Lease. In the event
Lessee defaults in respect of any of the terms, provisions,
covenants or conditions of this Lease, including, but not limited to
the payment of rent, Lessor may use, apply or retain the whole or
any part of such security for the payment of any rent in default or
for any other sum which. Lessor may spend or be required to spend by
reason of Lessee's default. Should Lessee faithfully and fully
comply with all of the terms, provisions, covenants and conditions
of this Lease, the security of any balance thereof shall be returned
to Lessee or, at the option of Lessor, to the last assignee of
Lessee's interest in this Lease at the expiration of the term
hereof. Lessee shall not be entitled to any interest on said
security deposit.
POSSESSION 6. If Lessor, for any reason whatsoever, cannot deliver possession
of the Premises to Lessee at the commencement of the said term, as
hereinbefore specified, this Lease shall not be void or voidable,
nor shall Lessor, or Lessor's agents, be liable to Lessee 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 Lessor'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 Thirty (30) days from the commencement date herein. If
the period of delay of delivery exceeds the foregoing, Lessee, at
his or it's option, may declare this Lease null and void.
ACCEPTANCE 7. By entry hereunder, the Lessee accepts the Premises as being in
OF good and satisfactory condition, unless within Sixty (60) days after
PREMISES such entry Lessee shall give Lessor written notice specifying in
AND reasonable detail the respects in which the Premises were not in
CONSENT TO satisfactory condition, and Lessor shall promptly repair such items.
SURRENDER The Lessee agrees on the last day of the term hereof, or on sooner
termination of this Lease, to surrender the Premises, together with
all alterations, additions, and improvements which have been made
in, to, or on the Premises by Lessor or Lessee, unto Lessor in the
same good condition as at Lessee's entry into the Premises excepting
for such wear and tear as would be normal for the period of the
Lessee's occupancy, Acts of God, casualty, Condemnation, hazardous
materials not stored, used or disposed of by Lessee and alterations
with respect to which Lessor has not required removal. The Lessee,
on or before the end of the term or sooner termination of this
Lease, shall remove all Lessee's personal property and trade
fixtures from the Premises and all property not removed shall be
deemed abandoned by the lessee. If the Premises be not surrendered
at the end of term or sooner termination of this Lease, the Lessee
shall indemnify the Lessor against loss or liability resulting from
delay by the Lessee in so surrendering the Premises including,
without limitation, any claims made by any succeeding tenant founded
on such delay.
USES 8. Lessee shad not commit, or permit to be committed, any waste
PROHIBITED upon the Premises, or any nuisance, or other act or thing which may
disturb the quiet enjoyment of any other tenant in or around the
buildings in which the Premises may be located, or allow any sale by
auction upon the Premises, or allow the premises to be used for any
unlawful purpose, or place any loads upon the floor, wails, or roof
which endanger the structure, or place any harmful liquids in the
drainage system of the building. No waste materials or refuse shall
be dumped upon or permitted to remain upon any part of the Premises
outside of the building proper. No materials, supplies, equipment,
finished products or semi-finished products, raw materials or
articles of any nature shall be stored upon or permitted to remain
on any portion of the Premises outside of the buildings proper.
ALTERATIONS 9. Except for nonstructural alterations not exceeding Seventy Five
AND Hundred Dollars ($7500.00) per work of improvement, the Lessee shall
ADDTIONS make no alterations, additions, or improvements to the Premises or
any part thereof without first obtaining the prior written consent
of the Lessor, which shall not be unreasonably withheld or delayed.
The Lessor may impose as a condition to the aforesaid consent such
requirements as Lessor may reasonably deem necessary in Lessor's
discretion, including without limitation thereto the manner in which
the work is done, a right of approval of the contractor by whom the
work is to be performed which approval shall not be unreasonably
withheld or delayed, the times during which it is to be
accomplished, and the requirement that upon written request of
Lessor made at the time that Lessee requests consent to such, prior
to the expiration or earlier termination of the Lease, Lessee will
remove any or all improvements or additions to the Premises
installed at Lessee's expense. All such alterations, additions or
improvements not specified to be removed shall at the expiration or
earlier termination of the lease become property of the Lessor and
remain upon and be surrendered with the Premises. All movable
furniture, business and trade fixtures, or machinery and equipment
shall remain in the property of the Lessee and may be removed by
the Lessee at any time during the Lease term when Lessee b not in
default beyond applicable cure period. Items which are not to be
deemed as movable furniture, business mud trade fixtures, or
machinery mud equipment shall include heating, lighting,
electrical systems, air conditioning, bard wail partitioning,
carpeting, or any other installation which has become an integral
part of the Premises. The Lessee will at all times permit notices
of non-responsibility to be posted and to remain posted until the
completion of alterations or additions which have been approved by
the Lessor.
MAINTENANCE 10. Subject to the Memorandum of Understanding, Lessee shall, at
OF Lessee's sole cost, keep and maintain the Premises and
PREMISES appurtenances and every part thereof, including but not limited
to, glazing, sidewalks, parking areas, plumbing, electrical
systems, heating and air conditioning installations, any store
front, roof covering unless it is not feasible to repair the
existing roof covering and a new roof is required, and the
interior of the Premises in good order, condition, and repair.
Lessor at the Lessor's sole cost and expense shall maintain the
exterior of the wails, and structural portions of the roof,
foundations, walls and floors except for any repairs caused by the
wrongful act of the Lessee and Lessee's agents. The Lessor will
replace the roof covering if repairs to said coveting are no
longer economically feasible in the judgement of roofing experts,
and provided said replacement is not made necessary by acts of the
Lessee and Lessee's agents. The Lessee shall water, maintain and
replace, when necessary, any shrubbery and landscaping provided by
the Lessor on the Premises. The Lessee expressly waives the
benefits of any statute now or hereafter in effect which would
otherwise afford the Lessee the right to make repairs at Lessor's
expense or to terminate this Lease because of Lessor's failure to
keep the Premises in good order, conditions or repair.
FIRE AND 11. See revised insurance clause attached.
EXTENDED
COVERAGE
INSURANCE
AND
SUBROGATION
ABANDONMENT 12. Lessee shall not vacate or abandon the Premises while in
default of it's obligation to pay rent; and if Lessee shall
abandon, vacate, or surrender the Premises while in default of
it's obligation to pay rent, or be dispossessed by process of law,
or otherwise, any personal property belonging to Lessee and left
on the Premises shall be deemed abandoned, at the option of the
Lessor, except such property as may be mortgaged to Lessor,
FREE FROM 13. Lessee shall keep the Premises and the property in which the
LIENS Premises are situated, free from any lien arising out of any work
performed, materials furnished, or obligations incurred by Lessee.
COMPLIANCE 14. As of commencement date, Premises is in compliance with
WITH applicable law. Lessee shall, at his sole cost and expenses,
GOVERNMENTAL comply will all the requirements of all Municipal, State, and
REGULATIONS Federal authorities, which may hereafter be in force, pertaining
to the Lessee's particular use of the Premises and shall
faithfully observe in the use of the Premises all 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 Lessee in any action or
proceeding against Lessee, whether Lessor be a party thereto or
not, that Lessee has violated any such ordinance or statute in the
use of the Premises, shall be conclusive of the fact as between
Lessor and Lessee. With respect to cost incurred to comply with
laws of applicability to owners of commercial property in general,
Lessor shall pay such costs, amortized over the useful life of the
improvement and Lessee shall pay the Lessor tee amortized costs
falling due during the term as extended on a monthly basis.
INDEMNI- 15. The Lessee, as a material part of the consideration to be
FICATION of rendered to the Lessor, hereby waives all claims against the
LESSOR AND Lessor for damages to goods, wares, and merchandise, and all other
LESSEE'S personal property in, upon, or about the Premises and for injuries
to persons in or about the Premises, from any cause arising at any
time, excepting claims arising from the Lessor's negligence or
willful misconduct or that
LIABILITY of it's agent, employees, or contractors, and the Lessee will hold
INSURANCE the Lessor exempt and harmless from any damage or from the use of
the Premises by the lessee, or from the failure of the Lessee to
keep the Premises in good condition and repair, ms herein
provided. See revised insurance clause attached.
ADVERTISE- 16. Lessee will not place or permit to be placed, in, upon or
MENTS AND about the Premises any unusual or extraordinary signs, or any
SIGNS signs not approved by the city or other governing authority. The
Lessee will not place, or permit to be placed, upon the Premises,
any sirens, advertisements, or notices without the written consent
of the Lessor first had and obtained, which shall not be
unreasonably withheld or delayed. Any sign so placed on the
Premises shall be so placed upon the understanding and agreement
that the Lessee 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 Lessee then Lessor may
have same so removed at Lessee's expense.
UTILITIES 17. Lessee shall pay for all water, gas, heat, light, power,
telephone service and all other service supplied to the Premises.
If the premises are not served by a separate water meter, the
Lessee shall pay to the Lessor 100 percent of the water xxxx for
the Premises.
ATTORNEY'S 18. In case suit shall be brought for the possession of the
FEES 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 a reasonable attorney's fee, which
shall be deemed to have accrued on the commencement of such action
and shall be enforceable whether or not such action is prosecuted
to judgement.
DEFAULT 19. In the event of any failure by Lessee to pay rent within 5
days after receipt of notice from Lessor that such sum is due, or
any failure by Lessee to perform any other obligation on its part
to be performed within 15 days after receipt of written notice
form Lessor (or if the failure is not capable of cure within 15
days, Lessee shall not be in default hereunder if Lessee commences
the cure within the 15 day period and thereafter prosecutes the
cure to completion), or an abandonment of the property by Lessee
coupled with Lessee's failure to pay rent hereunder, the Lessor
has the option of 1) removing all persons and property from the
Premises and repossessing the Premises in which case any of the
Lessee's property which the Lessor removes from the Premises may
be stored in a public warehouse elsewhere at the cost of, and for
the account of the Lessee, or 2) allowing the Lessee to remain in
fur possession and control of the Premises. If the lessor chooses
to repossess the Premises, the lease will automatically terminate
in accordance with provisions of the California Civil Code,
Section 1951.2. In the event of such termination of the Lease, the
Lessor may recover from the Lessee: 1) the worth at the time of
award of the unpaid rent which had been earned at the time of
termination including interest at 7% per annum; 2) 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 that the Lessee proves
could have been reasonably avoided including interest at 7% per
annum; 3) the worth at the time of such rental loss that the
Lessee proves could be reasonably avoided; and 4) any other mount
necessary to compensate the Lessor for all the detriment
proximately caused by the Lessee's failure to perform his
obligations under the Lease or which in the ordinary course of
things would be likely to result therefrom. If the Lessor chooses
not to repossess the Premises, but allows the Lessee to remain in
full possession and control of the Premises, then in accordance
with provisions of the California Civil Code, Section 1951.4, the
Lessor may treat the Lease as being in full force and effect,. and
may collect from the Lessee all rents as they become due through
the termination date of the lease as specified in the a) Acts of
maintenance or preservation or efforts to relet the property, b)
the appointment of a receiver on the initiative of the Lessor to
protect his interest under this Lease.
LATE CHARGES 20. Lessee hereby acknowledges that late payment by Lessee to
Lessor of rent and other sums due hereunder will cause Lessor to
incur costs not contemplated by this lease, the exact amount of
which will be extremely difficult to impose the Lessor by the
terms of any mortgage or trust deed coveting the Premises.
Accordingly, if any installment of rent or any other sum due from
Lessee shall not be received by Lessor or Lessor's designee within
five (5) clays after such amount shall be due, Lessee shall pay to
Lessor a late charge equal to ten percent (10%) of such overdue
amount. The parties hereby agree that such late charge represents
a fair and reasonable estimate of the cost Lessor will incur by
reason of late payment by Lessee. Acceptance of such late charge
by Lessor shall in no event constitute a waiver of
Lessee's default with respect to such overdue amount, nor prevent
Lessor from exercising any of the other rights and remedies
granted hereunder:
SURRENDER OF 21. The voluntary or other surrender of this Lease by Lessee, or a
LEASE mutual cancellation thereof, shall not work a merger, and shall,
at the option of Lessor, terminate all of any existing subleases
or subtenancies, or may, at the opinion of Lessor, operate as an
assignment to him of any of all such subleases or subtenancies.
TAXES 22. The Lessee shall be liable for all taxes levied against
personal property and trade or business fixtures. The Lessee also
agrees to pay, as an additional rental, during the term of this
Lessee and any extension thereof, all real estate taxes plus the
yearly installments of any special assessments which are of record
or which may become of record during the term of this lease. If
said taxes and assessments are assessed against the entire
building and building site, and this Lease does not cover the
entire building or building site, the taxes and assessment
installments allocated to the Premises shall be pro-rated on a
square footage or other equitable basis. It is understood and
agreed that the Lessee's obligation under this paragraph will be
pro-rated to reflect the commencement and termination dates of
this Lease.
NOTICES 23. All notices to be given to Lessee may be given in writing
personally or by depositing the same in the United States mail,
postage prepaid, and address to Lessee at the said premises,
whether or not Lessee has departed from, abandoned or vacated the
Premises.
ENTRY BY 24. Lessee shall permit Lessor and his agents to enter into and
LESSOR upon the Premises at all reasonable times upon reasonable prior
notice for the purpose of inspecting the same or for the purpose
of maintaining the building in which the Premises are situated, or
for the purpose of making repairs, alterations or additions to any
other portion of said building, including the erection and
maintenance of such scaffolding, canopies, fences and props as may
be required without any rebate of rent and without any liability
to Lessee for any loss of occupation or quiet enjoyment of the
Premises thereby occasioned; and shall permit Lessor and his
agents, at any time within ninety days prior the expiration of
this Lease, to place upon the Premises any usual or ordinary "For
Sale" or "To Lease" sign and exhibit the Premises to prospective
tenants at reasonable hours. Lessor's exercised of the forgoing
rights shall not materialy increase Lessee's obligations or
diminish Lessee's rights under this lease.
DESTRUCTION 25. In the event of a partial destruction of the Prorated during
OF PREMISES the said term from any cause, except earthquake, Lessor shall
forthwith repair the same, provided such repairs can be made
within one hundred eighty (180) days under the laws and
regulations of Sate, Federal, County or Municipal authorities, but
such partial destruction shall in no Way annul or void this Lease,
except that Lessee shall be entitled to a proportionate reduction
of rent while suck 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 Lessee in
the Premises. If such repairs cannot be made within one hundred
eighty (180) days, Lessor may, at his opinion, 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. In the event that Lessor does not elect to
make such repairs which cannot be made within one hundred eighty
(180) days, or such repairs cannot be made under such laws and
regulations, this Lease may be terminated at the option of either
party. In respect to any partial destruction which Lessor is
obligated to repair may elect to repair under the terms of this
paragraph, the provisions of Section 1932, Subdivision 2, and of
Section 1993, Subdivision 4, of the Civil Code of the State of
California are waived by Lessee. In the event that the building in
which the Premise may be situated by the extent of no less than 33
1/3% of the replacement cost thereof, Lessor may elect to
terminate this Lease, whether the Premises is injured or not. A
totally destruction of the building in which the Premises may be
situated shall terminate this Lease. In the event of any dispute
between Lessor and Lessee relative to the previsions of this
paragraph, they shall each elect and arbitrator, the two
arbitrators so selected shall select a thud arbitrator and the
three arbitrators so selected shall hear and determine the
controversy and there decision thereon shall be final and binding
upon both Lessor and Lessee, who shall bear the cost of such
arbitration equally between them. Lessee has the right to
terminate if the damage or destruction occurs
during the last 12 months of the term or if Lessor fails to
complete repairs XXXXXXXXXXXXXXXXXXXXXXX days after the date of
damage or destruction.
ASSIGNMENT 26. The Lessee shall not assign, transfer, or hypothecate the
AND SUBLETING leasehold estate under the Lease, or any interest therein, and
shall not sublet the Premises, or any part thereof, or any right
of privilege appurtenant thereto, or suffer any other person or
entity to occupy or use the Premises, or any portion thereof,
without, in each case, the prior consent of the Lessor. Lessor
agrees to not unreasonably withhold or delay consent to sublet or
assign. As a condition for granting its consent to any subletting
the Lessor may require the Lessee to agree to pay to the Lessor,
as additional rental 50% of all rents after expenses, received by
the Lessee from its Sublessee which are in excess of the amount
payable to the Lessee to the Lessor hereunder. The Lessee shall,
by thirty (30) days written notice, advise the Lessor of its
intent to sublet the Premises or any portion thereof for any part
of the term hereof. Within fifteen (15) days after receipt of
Lessee's notice, Lessor shall either give approval to Lessee to
sublease the portion of the Premises. described in Lessee's
notice, or Lessor shall terminate this Lease as to the portion of
the Premises described in Lessee's notice on the day specified in
Lessee's notice. If, however, Lessor elects to terminate Lessee
shall have the right upon five (5) days notice to Lessor to recind
it's request for consent, in which case this Lease shall remain in
full force and effect. If Lessee intends to sublet the entire
Premises and Lessor elects to terminate this Lease, this Lease
shall be terminated on the date specified in the Lessee's notice.
If, however, this Lease shall terminate pursuant to the foregoing
with respect to less than all the Premises, the rent, as defined
and reserved herein above shall be adjusted, on a prorata basis to
the number of square feet retained by Lessee, and this Lease as so
amended shall continue in full force and effect. If the Lessor
approves a subletting, the Lessee may sublet immediately after
receipt of the Lessor's written approval. In the event Lessee is
allowed to assign, transfer or sublet the whole or any part of the
Premises, with the prior consent of the Lessor, no assignee,
transferee or sublesee shall assign or transfer this Lease, either
in whole or in part, or sublet the whole or any part of the
Premises, without also having obtained the prior written consent
of the Lessor. A consent of Lessor to one assignment, transfer,
hypothecation, subletting, occupation of use by any other person
shall not release Lessee from any Lessee's obligations hereunder
or be deemed to be a consent to any subsequent similar of
dissimilar assignment, transfer, hypothecation, subletting,
occupation or use by any other person. Any such assignment,
transfer, hypothecation, subletting, occupation or use without
such consent shall be void and shall constitute a breach of this
Lease by Lessee and shall, at the opinion of Lessor exercised by
written notice to Lessee, terminate this Lease. The leasehold
estate under this Lease shall not, nor shall any interest therein,
be assignable of any purpose by operation of law without the
written consent of Lessor. As a condition to its consent, Lessor
may require Lessee to pay all expense in connection with the
assignment not to exceed five thousand dollars ($5000) per
request, and Lessor may require Lessee's assignee or transferee
(or other assignees of transferees)to assume in writing all of the
obligations under this Lease.
CONDEMNATION 27. 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 thereof, and a part thereof remains
which is susceptible of occupation hereunder, 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 Lessee 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 Lessor
shall have the potion to terminate this Lease as of the day when
title to the part so taken vests in the condemnor or purchaser. If
all of the Premises, or such part thereof to be taken so that
there does not remain a portion susceptible for occupation
hereunder, this Lease shall be thereupon terminated. If a part or
all the Premises be taken, all compensation awarded upon such
taking shall go to the Lessor and the Lessee shall be entitled to
any separate award made by the condemning authority for moving
costs, relocation expenses, loss of good will, and improvements
paid for by Lessee.
EFFECT OF 28. The term "Lessor" as used in this Lease, means only the owner
CONVEYANCE 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 lease of said building, the Lessor
shall be and hereby is entirely free and relieved of all covenants
and obligations of the Lessor hereunder, and it shall be deemed
and construed, without further agreement between the parties and
the purchaser at any such sale, or the Lessee of the building,
that the purchaser
or Lessee of the building has assumed and agreed to carry out any
and all covenants and obligations of the Lessor hereunder. If any
security be given by the Lessee to secure the faithful performance
of all or any of the covenants of this Lease on the part of the
Lessee, the Lessor shall transfer and deliver the security, as
suck, to the purchaser at any such sale or the lessee of the
building, and thereupon the Lessor shall be discharged from any
further liability in reference thereto.
SUBORDI- 29. Lessee agrees that this Lease may, at the opinion of Lessor,
NATION be subject and subordinate to any mortgage, deed of trust or other
instrument of security which has been or shall be placed on the
land and building of which the Premises form a part, and this
subordination is hereby made effective without any further act of
Lessee. The Lessee shall, at any time hereinafter, on demand,
execute any instruments, releases, or other documents that may be
required by a mortgagee, mortgagor, or trustor or beneficiary
under any deed of trust for the purpose of subjecting and
subordinating this Lease to the lien of any such mortgage, deed of
trust or any other instrument of security, and the failure of the
Lessee to execute any such instruments, releases or documents,
shall constitute default hereunder. Any subordination persuant to
this section shall not be effective unless the holder of any such
instrument executes a nondisturbance and attornment agreement
showing the Lessee to continue enjoying the tennancy without
interruption or obstruction.
WAIVER 30. The waiver by Lessor of any branch of any term, covenant or
condition, herein contained shall be deemed to be a waiver of such
a term, Covenant or condition of any subsequent breech of the same
or any other term, covenant of condition therein contained. The
subsequent acceptance of rent hereunder by Lessor shall not be
deemed to be a waiver of any preceding breach by Lessee by any
term, covenant or condition of this Lease, other than the failure
of Lessee to pay the particular rent so accepted, regardless of
Lessor's knowledge of such preceding breach at the time of
acceptance of such rent.
HOLDING OVER 31. Any holding over after the expiration of the said term, with
the consent of Lessor, shall be construed to be a tenancy from
month to month, at a rental to be negotiated by Lessor and Lessee
prior to the expiration of said term, and shall otherwise be on
the terms and conditions herein specified, so far applicable.
SUCCESSORS 32. The covenants and conditions herein contained shall, subject
AND ASSIGNS to the provisions as to assignment, apply to and bind the heirs,
successors, executors, administrators and assigns for all of all
the parties hereto; and all of the parties hereto shall be jointly
and severally liable hereunder.
TIME 33. Time is of the essence of this Lease.
MARGINAL 34. The marginal headings or title to the paragraphs of this Lease
CAPTIONS are not a part of this Lease and shall have no effect upon the
construction and 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 in there respective successors in interest.
Paragraphs 35, 36, and Memorandum of Understanding are hereby made a part
of this Lease.
THIS LEASE HAS BEEN PREPARED FOR SUBMISSION TO YOUR ATTORNEY WHO WILL REVIEW THE
DOCUMENT AND ASSIST YOU TO DETERMINE WHETHER YOUR LEGAL RIGHTS ARE ADEQUATELY
PROTECTED. RENAULT & XXXXXXX IS NOT AUTHORIZED TO GIVE LEGAL AND TAX ADVICE.
NO REPRESENTATION OR RECOMMENDATION IS MADE BY RENAULT & XXXXXXX OR ITS AGENTS
OR EMPLOYEES AS TO THE LEGAL SUFFICIENCY, LEGAL EFFECT OR TAX CONSEQUENCES OF
THIS DOCUMENT OR ANY TRANSACTION RELATING THERETO. THESE ARE QUESTIONS FOR YOUR
ATTORNEY WITH WHOM YOU SHOULD CONSULT BEFORE SIGNING THIS DOCUMENT.
ADDITIONAL PARAGRAPH
The additional paragraphs are hereby made a part of that certain Lease
dated July 14, 1998 by and between Renault & Xxxxxxx Solar Ellis Join Venture,
Lessor and Cobalt Networks, Inc., Lessee covering the Premises at 000 Xxxxx
Xxxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx.
35. Lessor grants to Lessee the option of renewing this Lease for one (1)
additional 2 year term commencing on the termination day of the Lease. The
option period shall be governed by all the same tetras and conditions as
contained in the original Lease excepting the monthly rental which shall be then
fair market for comparable office/R&D buildings in the Xxxxx/Middlefield area.
Lessor and Lessee shall reasonably negotiate fair market value for a period of
thirty (30) days. If at the end of the thirty (30) day period, Lessor and Lessee
have not agreed upon Fair Market rental value, Lessee shall have the right to
recind it's exercised options. In no event however, shall the monthly rental for
the option period be less than $70,343.00. In order to exercise this option,
Lessee must give Lessor six (6) months written notice prior to the termination
of the origional term.
36. Lessor will hold Lessee harmless from and against all costs of response,
corrective action, remedial action, claims, demands, losses and liabilities
arising from any pre-existing environmental contamination which may have
occurred prior to the Lessee taking possession of the Premises.
Lessee will only be responsible for contamination of the Premises of the soils
or ground water thereon or thereunder in violation of Hazardous Materials Law,
that is caused by Lessee or Lessee's agents, contractors or invitees during the
term as may be extended. All hazardous materials and toxic wastes that Lessee
brings on the Premises shall be stored according to Hazardous Materials' Law.
All hazardous materials and toxic wastes that Lessee brings on the Site shall be
stored according to all local, sate and national regulations. Hazardous
materials shall be defined as those substances that are recognized as posing a
risk of injury to health or safety by the Santa Clare Fire Department, the Santa
Xxxxx Health Department, the Regional Water Quality Control Board, the State Of
California or Federal Government.
For the purpose of this Lease, "Hazardous Materials Law" shall meant all local,
state, and federal laws, statues, ordinances, rules, regulations, judgements,
injunctions, stipulations, decrees, orders, permits, approval, treaties or
protocols now of hereafter enacted, issued of promulgated by any government
authority which relate to any Hazardous Materials of the use, handling,
transportation, production, disposal, discharge, release, emission, sale or
storage of, or the exposure of any person to, a Hazardous Material.
REVISED INSURANCE CLAUSE
Lease Clause replaces the Insurance Clause (11.) in the Renault & Xxxxxxx Net
Lease Form
11. Lessee shall not use, or permit on the Premises, or any part thereof, to be
used, for any purpose other than that for which the Premises are hereby Leased;
and no use shall be made or permitted to be made on the Premises nor acre done,
which will cause a cancellation of any insurance policy covering the said
building, or any part thereof, or shall Lessee sell or permit to keep, used or
sold, in or about the Premises, any article which may be prohibited by the
standard form of fire insurance policies. Lessee shall, at his whole cost and
expense, comply with any and all requirements, pertaining to the Presses, of my
insurance organization of company, necessary for the maintenance of reasonable
fire and public liability insurance, covering said building and appurtenances.
11.1 Lessee shall, at its expense, obtain and keep in force during the term of
this Lease a policy of comprehensive public liability insurance insuring Lessee,
Lessor, and any third parties named by Lessor which may include only Lessor's
lender and property manager, if any, against any Liability arising out of the
condition, use, occupancy or maintenance of the Premises. Such insurance shall
have a combined single Limit for both bodily injury and property damage in an
amount no less than One Million and No/100ths Dollars ($1,000,000.00). The
limits of said insurance shall not limit the liability of Lessee hereunder.
11.2 Lessee shall, at its expense, keep in force during the term of this Lease,
a policy of fire and property damage insurance in an "all risk" with a sprinkler
leakage endorsement, insuring Lessee's inventory, fixtures, equipment and
personal property wither, the Premises for the Rill replacement value thereof.
11.3 Lessor shall maintain a policy or policies of fire a property damage
insurance in an "all risk" form, with sprinkler and, at the option of Lessor,
earthquake endorsements, covering loss or damage of the building, including
Lessee's leasehold improvements installed with the written consent of the
Lessor, in such amounts and with such coverage as Fair Market Value of the
building deems advisable.
11.4 Lessee shall pay to Lessor as an additional rent, during the term thereof,
within twenty (20) days after receipt of an invoice therefore, 100 percent of
the premiums for any insurance obtained by Lessor pursuant to 11.3 above.
Lessor may obtain such insurance for the Building separately, or together with
other buildings and improvements which Lessor elects to insure together under
blanket policies of insurance. In such case Lessee shall be liable for only
such portion of the premium for such blanket policies as are allocable to the
Premises. It is understood and agreed that Lessee's obligation under this
paragraph shall be prorated to reflect the Commencement Date and Expiration Date
of the Lease.
11.5 Lessee and Lessor hereby waiver any and all rights of recovery against the
other, or against the officers, directors, employees, partners; agents and
representative of the other, for loss or damage to the property of the waiving
party or the property of others under its control, to the extent such loss or
damage is insured against any under insurance policy carried by Lessor or Lessee
hereunder. Each party shall notify their respective insurance carriers of this
waiver.
IN WITNESS WHEREOF, Lessor and Lessee have executed there presents, the day and
year first written above.
LESSOR LESSEE
Renault & Xxxxxxx Solar Xxxxx X.X. Cobalt Networks, Inc.
by: /s/ Xxxxxx X. XxXxx by: /s/ Xxxxxx X. Xxxx
----------------------------- -------------------------------
printed Xxxxxx X. XxXxx printed Xxxxxx X. Xxxx
------------------------- ---------------------------
date: 8/07/98 date 8/5/98
---------------------------- -------------------------------
MEMORANDUM OF UNDERSTANDING
Parties: Cobalt Networks, Incorporated
Renault & Xxxxxxx Solar Ellis Joint Venture
Date: August 4, 1998
RE: That certain Lease dated August 4, 1998 by and between Renault &
Xxxxxxx, Solar Xxxxx Join Venture, Lessor and Cobalt Networks, Inc.,
Lessee for and approximate 28,137 square foot industrial building
commonly know as 000 Xxxxx Xxxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx.
It is agreed as follows:
Lessor grants to Lessee the First Right of Refusal to lease the adjacent
building 000 Xxxxx Xxxxxx, Xxxxxxxx View when it become available under the
following terms and conditions. If 000 Xxxxx Xxxxxx becomes available, Lessor
shall advise Lessee by written notification of its availability and of Lessor's
terms and conditions including monthly rental amount The Lessee shall have 20
days after the date of the notification of availability to accept or reject
Lessor's terms and conditions. If no written acceptance is received by the
Lessor from the Lessee within 20 day period, Lessor shall be free to offer the
space on the open market on the same terms and at the same rental as it was
offered to the Lessee. If, however, Lessor should decide to lease the space at
a different rental or under different terms and conditions, then Lessee shall be
given 3 business days to accept or reject the new proposal. If no written
acceptance is received by the Lessor within the above three day period, Lessor
shall be free to lease the space at the different price or different terms and
conditions without further obligations to Lessee.
Lessor agrees that Lessee shall have full and unrestricted access to the
Property for 31 days prior to lease commencement for the purpose of equipment
installation and fixturing the Property for Lessee's use. Said early access
shall be extended rent free to Lessee, but in all other respects shall be
governed by the terms of this lease including the payment of utilities and
insurance costs.
Lessor as part of the consideration for the execution of this Lease, power-wash
the exterior or the Premises, clean up the landscape area and repair damaged
asphalt in the parking lot. Lessee is entitled to all parking designated for
the Property.
Notwithstanding anything to the contrary contained in par 10 of the above Lease,
Lessor shall be responsible for landscaping and parking lot maintenance,
including resealing and restriping the parking areas when needed. Lessor shall
also be responsible for the maintenance of the roofing fabric including the
clearing of drains, resealing of penetrations when necessary and all service
calls due to water leaks. Lessor shall also pay for a service which will
provide monthly HVAC inspections and maintenance. Lessee shall be responsible
for all HVAC repair as specific in par 10 of the Lease. Lessee agrees to pay to
Lessor for this common area maintenance (CAM) the sum of 930.00/mo. Which sum
shall be payable with the monthly rental amount.
READ & AGREED:
Renault & Xxxxxx Cobalt Networks, Inc.
By: /s/ Xxxxxx X. XxXxx By: /s/ Xxxxxx X. Xxxx
Date: 8/7/98 Date 8/5/98
