EXHIBIT 10.7.4
Renault & Xxxxxxx
INDUSTRIAL & COMMERCIAL REAL ESTATE
This Lease, executed in duplicate at Palo Alto, California,
PARTIES this 10th day of August, 1993, by and between
Renault & Xxxxxxx Solar Xxxxx Joint Venture.
and
Xxxxx Digital Services, Inc.
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:
Premises commonly known as 000 Xxxxx Xxxxxx, and which
include an approximate 28,157 square foot industrial
building.
USE 2. The Premises shall be used and occupied by Lessee for
General office, sales, administration, printing services and
other legal uses, 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
1st day of December, 1993, and ending on the 30th day of
November, 1998.
RENTAL 4. Rent shall be payable to the Lessor without deduction
or offset at such place or places as may be designated from time
to time by the Lessor as follows:
[??] as security for [??] full and faithful performance of each
and every term, provision, covenant and condition of this Lease.
In the event that 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 a default or for any other sum which 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 sixty (60) days from
the commencement date herein. If the period of delay of delivery
exceeds the foregoing, Lessee, at his or its option, may declare
this Lease null and void.
USES 8. Lessee shall not commit, or suffer to be committed, any
PROHIBITED waste 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 improper, immoral, unlawful or
objectionable purpose, or place any loads upon the floor, walls,
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 or 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.
SEE REVISED INSURANCE CLAUSE ATTACHED
ABANDONMENT 12. Lessee shall not vacate or abandon the Premises at any
time during the term: and if Lessee shall abandon, vacate or
surrender the premises, or be dispossessed by process of law, or
otherwise, any personal property belonging to Lessee and left on
the Premises shall be deemed to be abandoned, at the option of
Lessor, except such property as may be mortgaged to Lessor.
FREE FROM 13. Lessee shall keep the Premises and the property in
LIENS which the Premises are situated, free from any liens arising out
of any work performed, materials furnished, or obligations
incurred by Lessee.
INDEMNI- 15. The Lessee, as a material part of the consideration to
FICATION OF be 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
LIABILITY injuries to persons in or about the Premises, from any cause
INSURANCE arising at any time, excepting claims arising from the Lessor's
negligence, and the Lessee will hold the Lessor 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 the Lessee,
or from the failure of the Lessee to keep the Premises in good
condition and repair, as herein provided.
SEE REVISED INSURANCE CLAUSE ATTACHED
ADVERTISE- 16. Lessee will not place or permit to be placed, in, upon
MENTS AND or 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 signs, advertisements or notices without the written consent
of the Lessor first had and obtained. Any sign so placed on the
Premises shall be so placed upon the understanding and agreement
that 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.
ATTORNEY'S 18. In case suit should be brought for the possession of
FEES the Premises, for the recovery or 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 judgment.
DEFAULT 19. In the event of any breach of this Lease by the Lessee,
or an abandonment of the Premises by the Lessee, 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 or elsewhere at the cost of, and
for the account of Lessee, or 2) allowing the Lessee to remain in
full possession and control of the Premises. If the Lessor
chooses to repossess the Premises, the Lease will automatically
terminate in accordance with provisions or 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 or
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 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 the Lessee
proves could be reasonably avoided; and 4) any other amount
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 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 lease. For
the purposes of this paragraph, the following do not constitute a
termination of Lessee's right to possession:
a) Acts of maintenance for 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 ascertain. Such costs
include, but are not limited to, processing and accounting
charges, and late charges which may be imposed on Lessor by the
terms of any mortgage or trust deed covering 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 ten (10) days 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 costs Lessor
will incur by reason of late payment by Lessee. Acceptance of
such late charge by Lessor shall [??]
XXX XXX XXX XXX XXX XXX XX XXX XXX XXX X amount, nor prevent Lessor from
exercising any of the other rights and remedies granted hereunder.
SURRENDER 2l. The voluntary or other surrender of this Lease by
OF LEASE Lessee, or a mutual cancellation thereof, shall not work a
merger, and shall, at the option of Lessor, terminate all or any
existing subleases or subtenancies, or may, at the option of
Lessor, operate as an assignment to him or any or 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 additional rental, during the term
of this Lease and any extensions 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, as calculated by the
Lessor. It is understood and agreed that the Lessee's obligation
under this paragraph will be pro-rated to reflect the
commencement and termination date 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 addressed 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
LESSOR into and upon the Premises at all reasonable times 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 to the expiration of
this Lease, to place upon the Premises any usual or ordinary "For
Sale" or "To Lease" signs and exhibit the Premises to prospective
tenants at reasonable hours.
DESTRUCTION 25. In the event of a partial destruction of the Premises
OF PREMISES during the said term from any cause, Lessor shall forthwith
repair the same, provided such repairs can be made within ninety
(90) days under the laws and regulations of State, 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 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 Lessee in the Premises.
If such repairs cannot be made in ninety (90) days, this Lease
may be terminated at the option of either party. In respect to
any partial destruction which Lessor 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 Lessee. In the event that the building in which the
Premises may be situated be destroyed to the extent of not less
than 33 1/2% of the replacement cost thereof, Lessor may elect to
terminate this Lease, whether the Premises be injured or not. A
total 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 provisions of this
paragraph, they shall each select an arbitrator, the two
arbitrators so selected shall select an arbitrator and 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 Lessor and Lessee, who shall bear the cost of such
arbitration equally between them.
ASSIGNMENT 26. The Lessee shall not assign, transfer, or hypothecate
AND the leasehold estate under this Lease, or any interest therein,
SUBLETTING and shall not sublet the Premises, or any part thereof, or any
right or 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 written consent of the
Lessor. *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, all rents received by the
Lessee from its Sublessee which are in excess of the amount
payable by the Lessee to the Lessor hereunder. The Lessee shall,
by one hundred twenty (120) 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 thirty (30) 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 date specified in Lessee's notice. 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 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 written consent of Lessor, no assignee, transferee or
sublessee 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 or use by any other person shall not
release Lessee From any of Lessee's obligations hereunder or be
deemed to be a consent to any subsequent similar or 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 option 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 for 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 expenses in connection with the
assignment, and Lessor may require Lessee's assignee or
transferee (or other assignees or transferees) to assume in
writing all of the obligations under this Lease.
*whose consent shall not be unreasonably withheld.
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 ?????
Premises prior to such taking; but in such event Lessor 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 there does
not remain a portion susceptible for occupation hereunder, 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 Lessor and the Lessee shall have no claim thereto.
EFFECT OF 28. The term "Lessor" as used in this Lease, means only the
CONVEYANCE owner for 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 lease of said building, the Lessor
shall be and hereby is entirely freed 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 or this Lease on the part of the Lessee, the Lessor
may transfer and deliver the security, as such, 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.
SUBORDINATION 29. Lessee agrees that this Lease may, at the option of
Lessor, 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 or land or 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 any
mortgagee, mortgagor, or trustor or beneficiary under any deed of
trust for the purpose or subjecting and subordinating this Lease
to the lien or any such mortgage, deed or trust or other
instrument of security, and the failure of the Lessee to execute
any such instruments, releases or documents, shall constitute a
default hereunder.
WAIVER 30. The waiver by Lessor 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
therein contained. The subsequent acceptance of rent hereunder by
Lessor shall not be deemed to be a waiver of any preceding breach
by Lessee of any term, covenant or condition of this Lease, other
than the failure of Lessee to pay the particular rental 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 as
applicable.
SUCCESSORS 32. The covenants and conditions herein contained shall,
AND subject to the provisions as to assignment, apply to and bind the
ASSIGNS heirs, successors, executors, administrators and assigns of all
of the parties hereto; and al1 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 titles to the paragraphs of
CAPTIONS this Lease are not a part of this Lease and shall have no effect
upon the construction or interpretation or 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
the parties hereto or their respective successors in interest.
PARAGRAPH 35 BELOW IS 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.
IN WITNESS WHEREOF, Lessor and Lessee have executed these
presents, the day and year first above written.
LESSOR LESSEE
RENAULT & XXXXXXX SOLAR XXXXX
XXXXX JOINT VENTURE DIGITAL SERVICES, INC.
_____________________________ ___________________________
/s/ Xxxxxx X. XxXxx /s/ [SIGNATURE ILLEGIBLE]
----------------------------- ---------------------------
Gen. Partner President
----------------------------- ---------------------------
OPTION 35. The Lessor grants to Lessee the option of renewing this
TO Lease for one (1) additional five (5) year period commencing on
RENEW the termination date of this Lease. The option period shall be
governed by all the same terms and conditions as contained in the
original Lease excepting the monthly rental amount which shall be
95% or the then fair market value for comparable office/R&D
buildings in the Mountain View area. [??]
REVISED INSURANCE CLAUSE
This Lease Clause replaces the Insurance Clause (11.) in the
Renault & Xxxxxxx Net Lease Form.
11. Lessee shall not use, or permit the Premises or any
part thereof, to be used, for any* purposes 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 acts done, which will
cause a cancellation of any insurance policy covering said
building, or any part thereof, nor shall lessee sell or permit to
be kept, 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 sole cost and expense, comply with
any and all requirements, pertaining to the Premises, of any
insurance organization or 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 or comprehensive public
liability insurance insuring lessee, Lessor, and any third
parties named by Lessor which may include Lessor's lender,
against any liability arising out of the condition, use,
occupancy or maintenance of the Premises. Such insurance policy
shall have a combined single limit for both bodily injury and
property damage in an amount not less than One Million &
-------------
no/100ths........Dollars ($1,000,000). The limits of said
----------------- ----------
insurance shall not limit the liability of Lessee hereunder.
INSURANCE 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" form with a sprinkler leakage
endorsement, insuring Lessee's inventory, fixtures, equipment and
personal property within the Premises for the full replacement
value thereof.
11.3 Lessor shall maintain a policy or policies of fire and
property damage insurance in an "all risk" form with sprinkler
and, at the option of the Lessor, earthquake endorsements,
covering loss or damage to the building, including Lessee's
leasehold improvements installed with the written consent of the
Lessor, in such amounts and with such coverage as Lessor deems
advisable.
11.4 Lessee shall pay to Lessor as additional rent, during
the term hereof, upon 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 Lessors elects to insure together under
blanket policies of insurance. In such case Lessee shall be
liable for only such portion of the premiums 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 each hereby waives any and all rights
of recovery against the other, or against the officers,
directors, employees, partners;, agents and representatives of
the other, for loss of 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 under any insurance policy
carried by Lessor or Lessee hereunder. Each party shall notify
their respective insurance carriers of this waiver.
ADDENDUM ONE TO LEASE
This Addendum One to Lease ("Addendum") is entered into as of ____________,
1993, and is made between RENAULT & XXXXXXX SOLAR XXXXX JOINT VENTURE ("Lessor")
and XXXXX DIGITAL SERVICES, INC. ("Lessee"), to be a part of that certain Lease,
of even date herewith, by and between Lessor and Lessee, concerning premises
commonly known as 000 Xxxxx Xxxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx, and as more
particularly described in the Lease ("Premises"). Lessor and Lessee agree that
the Lease Form (as hereinafter defined) shall be amended, supplemented and
modified as follows:
1. Definitions. Unless otherwise defined in this Addendum, all the terms
used in this Addendum shall have the same meaning and definition given them in
the Lease Form. As used in this Addendum, the term "Lease Form" shall mean the
lease form, together with all exhibits and attachments thereto, to which this
Addendum is attached. As used in this Addendum, the term "Lease" shall mean the
Lease Form, this Addendum, and all other addenda, exhibits and attachments to
the form referred to in the Lease Form or in this Addendum.
2. Rental. Paragraph 4 of the Lease shall be revised to read as follows:
"Eighteen Thousand Two Hundred Eighty Nine & no/100ths Dollars
($18,289.00) on execution of this lease, constituting monthly rental
for the period December 1, 1993 through December 31, 1993. Eighteen
Thousand Two Hundred Eighty Nine & no/100ths Dollars ($18,289.00) will
be due on January 1, 1994, and on the 1st day of each succeeding month
to and including November 1, 1994. Nineteen Thousand Six Hundred
Ninety Six & no/100ths Dollars ($19,696.00) will be due on December 1,
1994, and on the 1st day of each succeeding month to and including
November 1, 1995. Twenty One Thousand One Hundred & no/100ths Dollars
($21,100.00) will due on December 1, 1995, and on the 1st day of each
succeeding month to and including November 1, 1996. Twenty Two
Thousand Five Hundred Ten & no/100ths Dollar ($22,510.00) will be due
on December 1, 1996, and on the 1st day of each succeeding month to
and including November 1, 1997. Twenty Five Thousand Three Hundred
Twenty Three & no/100ths Dollars ($25,323.00) will be due on December
1, 1997, and on the 1st day of each succeeding month to and including
November 1, 1998."
3. Acceptance of Premises and Consent to Surrender. Paragraph 7 of the
Lease shall be deleted in its entirety and replaced with the following
provisions:
* 7(a). Acceptance of Premises. Lessor represents and warrants that
the Premises are in fit condition for use by Lessee, and to the best
of Lessor's knowledge, the Premises are free from adverse
environmental conditions and/or environmental contamination, and
further agrees to indemnify and hold Lessee harmless for the same as
provided in Paragraph 36 herein. Acceptance of the Premises by Lessee
shall be construed as recognition that the Premises
are, subject to latent and patent defects, in good repair and sanitary
condition unless within forty-five (45) days after such entry, Lessee
shall give Lessor written notice specifying in reasonable detail the
respects in which the Premises were not in satisfactory condition.
7(b). Americans with Disabilities Act. Lessor represents and
warrants that as of the Commencement Date, the Premises comply with
all provisions of the Americans with Disabilities Act of 1990 (the
"ADA"). Lessor shall be responsible for, and shall bear all costs and
expenses associated with, any and all alterations to the Premises
which may be required by the ADA, for the accommodation of disabled
individuals who may be employed from time to time by Lessee, or any
disabled customers, clients, guests, or invitees of Lessee. Lessor
shall indemnify and hold Lessee harmless from and against any and all
liability incurred arising from the failure of Premises to conform
with the ADA, including the cost of making any alterations,
renovations or accommodations required by the ADA, or any government
enforcement agency, or any court, any and all fines, civil penalties,
and damages awarded against Lessee resulting from a violation or
violations of the ADA, and all reasonable legal expenses and court
costs incurred in defending claims made under the ADA, including
without limitation reasonable consultants' and attorneys' fees,
expenses and court costs; provided, however, that Lessee shall be
responsible for all costs associated with ADA compliance for interior
improvements installed by the Lessee and all changes to the building
made by Lessee, and shall indemnify and hold harmless Lessor from all
liability for the same.
7(c). Code Compliance; Compliance with Laws. Lessor will, at
Lessor's sole expense and without unreasonable delay, make all repairs
and alterations necessary to the Premises which may be required by
reason of any nonconformity with, or violation of, any applicable
laws, ordinances, codes and regulations (including, without
limitation, zoning and building codes) existing at the Commencement
Date or thereafter enacted or promulgated, including any such
nonconformity or violation which is otherwise excused by any
"grandfather" provision of such laws, ordinances, code and
regulations, notwithstanding the cause of the removal of the
"grandfather" provision. Notwithstanding, Lessee shall be responsible
for any costs of compliance with codes, regulations, laws, or
ordinances which may be required because of any alterations or
improvements to the Premises made by Lessee, excluding the cost of
containing any asbestos currently on the Premises, if any. Except as
otherwise provided herein, the Lessee shall also be responsible for
any costs of compliance with codes, laws or ordinances attributable to
any operations of Lessee which necessitate special alterations or
improvements to the Premises.
7(d). Consent to Surrender. The Lessee agrees on the last day of the
term hereof, or on sooner termination of this Lease, to surrender the
Premises,
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together with all alterations, additions, and improvements which may
have been made in, to, or on the Premises by Lessor, 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. The Lessee, on or before the end of the term
or sooner termination of the Lease, shall remove all Lessee's personal
property and trade fixtures from the premises and all property not so
removed shall be deemed to be abandoned by the Lessee. If the Premises
be not surrendered at the end of the 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."
4. Alterations and Additions. Paragraph 9 of the Lease shall be deleted
in its entirety and replaced with the following provisions:
* 9. Lessee shall not make any alterations or additions to the
Premises costing over $15,000 per occasion, without the prior written
consent of Lessor, which consent Lessor agrees not to unreasonably
withhold or delay. Lessor agrees that Lessee may at any time and from
time to time make any alterations, other improvements, additions or
installations costing less than $15,000 per installation, to the
Premises without the consent of the Lessor. All alterations, additions
or other improvements that may be made on or to the Premises by Lessor
shall be the property of Lessor and shall remain on and be surrendered
with the Premises as a part thereof at the termination of this Lease,
without hindrance, molestation or injury by Lessee. Each nonstructural
alteration, addition, or other improvement that may be made on or to
the Premises by Lessee without requiring consent of Lessor shall
remain the property of Lessee, except those not removed by Lessee at
the termination of this Lease, which shall then become the property of
Lessor. All of Lessee's moveable furniture, business and trade
fixtures and machinery and equipment shall remain the property of
Lessee and may be removed by Lessee at any time during the lease term.
For all alterations, additions or improvements contemplated by Lessee
and requiring consent of Lessor, at the time of such consent Lessor
shall inform Lessee as to whether Lessor shall or shall not require
them to be removed at the termination of the Lease, and all such
alterations, additions or improvements not so specified to be removed
shall become the property of Lessor at the expiration or earlier
termination of the Lease."
5. Maintenance of Premises. Paragraph 10 of the Lease shall be deleted in
its entirety and replaced with the following provisions:
* 10(a). Maintenance. Lessor, at Lessor's sole cost and expense, shall
maintain in good condition and repair (and replace as necessary) (i)
the
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structural elements and components of the Premises (including, without
limitation, walls, foundation, roof and floors) and (ii) the roof
covering. Lessor warrants and represents that as of the commencement
date of this Lease, the electrical, plumbing, and heating, ventilating
and air conditioning systems at or serving the Premises, and paving
are in good working condition, free from defects, and shall maintain
same in good condition and repair (and replace as necessary) for a
period of nine (9) months from the commencement of this Lease.
Notwithstanding the foregoing, Lessor shall not be obligated to make
any repairs caused by the wrongful act of the Lessee or Lessee's
agents. Lessor shall be obligated to make any repairs under this
Section 10(a) within sixty (60) days after receipt of a written notice
from Lessee of the need for such repairs.
10(b). Lessee's Maintenance. With the exception of matters for which
Lessor is responsible under Section 10(a) above, Lessee, at Lessee's
sole cost and expense, shall maintain the Premises and appurtenances
and every part thereof, and keep them in good repair, ordinary wear
and tear excepted. Beginning with the date nine (9) months from the
commencement of this Lease, Lessee, at Lessee's sole cost and
expense, shall contract for the maintenance and repair of the
electrical, plumbing, and heating, ventilating and air conditioning
systems at or serving the Premises. The Lessee shall water, maintain
and repair, when necessary, any shrubbery and landscaping provided by
the Lessor in the Premises."
6. Compliance with Laws. Paragraph 14 of the Lease shall be deleted in
its entirety.
7. Indemnification of Lessor. Paragraph 15 of the Lease shall be amended
by inserting the words "or willful misconduct, or the negligence or willful
misconduct of Lessor's employees and agents" after the word "negligence," in
Line 4.
8. Advertisements and Signs. Paragraph 16 of the Lease shall be amended
by inserting the words "which consent shall not be unreasonably withheld" at the
end of the second sentence.
9. Default. Paragraph 19 of the Lease shall be amended by adding the
following provision:
"If default be made in the performance or observance by Lessor of any
covenant or condition herein contained, and such default shall
continue for thirty (30) days after written notice thereof shall have
been given to Lessor, then Lessee may elect to perform such covenant
or condition and may offset the cost of such performance against
future rents and/or may proceed to collect such cost from Lessor in a
court of competent jurisdiction."
10. Assignment and Subletting. Paragraph 26 of the Lease shall be amended
by substituting the word "ninety (90)" for the words "one hundred twenty (120)"
in Line 6.
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11. Condemnation. Paragraph 27 of the Lease shall be amended by (a)
inserting the words "either Lessee or" after the word "event" in Line 6, and (b)
substituting the words "except that Lessee shall be entitled to receive such
portions thereof as may be allocated to compensate Lessee for Lessee's trade
fixtures, improvements and moving expenses" for the words "and the Lessee shall
have no claims thereto" in Lines 9 and 10.
12. Option to Renew. Paragraph 35 of the Lease shall be amended by
deleting the third sentence of the paragraph, and adding the following language:
"The "fair market rental value" of the Premises shall be defined to
mean the fair market rental value of the Premises as of the time the
option is exercised, taking into consideration all relevant factors,
including length of term, the uses permitted under the Lease, the
quality, size, design and location of the Premises, and the monthly
base rent paid by tenants for premises comparable to the Premises
located in the same general area as the Premises.
Within thirty (30) days after Lessee has given such notice, each
party, at its sole cost and by giving notice to the other party, shall
appoint a real estate appraiser with at least five years' full-time
commercial appraisal experience in the area in which the Premises are
located to appraise and set the then fair market rental value of the
Premises. If a party does not appoint an appraiser within this time
period, the single appraiser appointed shall be the sole appraiser and
shall set the then fair market rental value of the Premises. If two
appraisers are appointed by the parties, they shall meet promptly and
attempt to set the then fair market rental value of the Premises. If
they are unable to agree within thirty (30) days after the second
appraiser has been appointed, they shall attempt to elect a 'third
appraiser meeting the requisite qualifications within five (5) days.
If they are unable to agree on the third appraiser, either of the
parties to this Lease, by giving five (5) days notice to the other
party, can apply to the then president of the real estate board for
the city in which the Premises are located, or the then Presiding
Judge of the Santa Xxxxx County Superior Court, for the selection of a
third appraiser who meets the qualifications stated in this paragraph.
Each of the parties shall bear one-half (1/2) of the cost of
appointing the third appraiser and of paying the third appraiser's
fee. The third appraiser however selected shall be a person who has
not previously acted in any capacity for either party.
Within twenty (20) days after the election of the third appraiser, a
majority of the appraiser shall set the then fair market rental value
of the Premises. If a majority of the appraisers are unable to set the
then fair market value of the Premises within the stipulated period of
time, the three appraisals shall be added together and their total
divided by three (3); subject to the next sentence, the resulting
quotient shall be the then fair market rental value of the Premises.
If, however, the low appraisal and/or high appraisal are/is more than
ten percent (10%) lower and/or higher than the middle appraisal, the
low
5
appraisal and/or high appraisal shall be disregarded. If only one
appraisal is disregarded, the remaining two appraisals shall be added
together and their total divided by two (2); the resulting quotient
shall be the then fair market rental value of the Premises. If both
the low appraisal and the high appraisal are disregarded, the middle
appraisal shall be the then fair market rental value of the Premises.
After the then fair market rental value of the Premises has been set,
the appraisers shall immediately notify the parties of such value and
the monthly Base Rent for the option period shall be the amount which
is ninety-five (95%) of the fair market rental value of the Premises
so set."
13. Environmental Indemnity. A new Paragraph 36 of the Lease shall be
added as follows:
"36. Environmental Indemnity. If the presence, release, threat of
release, placement on or in the Premises during the term of this
Lease, or the generation, transportation, storage, treatment, or
disposal at the Premises during the term of this Lease of any
hazardous or toxic material: (i) gives rise to liability (including,
but not limited to, a response action, remedial action, or removal
action) under any Environmental Laws (as hereinafter defined) or any
common law theory based on nuisance, trespass or strict liability;
(ii) causes a significant public health effect; or (iii) pollutes or
threatens to pollute the environment, Lessor shall, at its sole cost
and expense, take any remedial and removal action necessary to clean
up the Premises and mitigate exposure to liability arising from the
hazardous or toxic material.
Lessor agrees to indemnify, defend and hold harmless Lessee, and its
respective agents, officers, directors and employees (collectively,
"Indemnitees"), from and against any and all debts, liens, claims,
causes of action, administrative orders or notices, costs, personal
injuries, losses, actual damages, liabilities, demands, interest,
fines, penalties or expenses (including attorneys' and consultants'
fees and expenses) and costs, suffered or incurred by Indemnitees, or
any of them, resulting, directly or indirectly, from the presence in,
upon or under the surface of the Premises or in any surface waters or
ground waters on or off the Premises or any migration of hazardous or
toxic material off the Premises if such materials were generated or
stored prior to or during the term of this Lease. Notwithstanding
anything to the contrary contained herein, Lessor shall not be liable
to Indemnitees for hazardous or toxic materials introduced to the
Premises by Lessee, its agents or employees, and Lessee shall be
responsible for cleanup and shall be fully liable for any damages
caused by any hazardous or toxic material introduced to the Premises
by Lessee.
For purposes of this Paragraph 36, "hazardous or toxic material" shall
be defined to include, without limitation, (a) asbestos or any
material composed of or containing asbestos in any form and type, (b)
polychlorinated biphenyl
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compounds ("PCB") or any material composed of or containing PCB, or
(c) any hazardous, toxic or dangerous waste, substance, material,
smoke, gas or particulate matter, as from time to time defined by or
for purposes of the Comprehensive Environmental Response, Compensation
and Liability Act, as amended, and any law commonly referred to as
"Superfund" or any successor to such laws, or any other federal, state
or local environmental, health or safety statute, ordinance, code,
rule, regulation, order or decree now or hereafter in force
regulating, relating to or imposing liability or standards concerning
or in connection with hazardous, toxic or dangerous wastes,
substances, material, smoke, gas or particulate matters (collectively,
the "Environmental Laws")."
14. Parking. A new Paragraph 37 of the Lease shall be added as follows:
"37. Parking. Lessee shall be entitled to 4 vehicle parking spaces per
1000 feet of space leased hereunder without paying any additional
rent. Such parking spaces shall be reserved for Lessee's exclusive
use."
IN WITNESS WHEREOF, Lessor and Lessee have executed this Addendum as of the
day and year first above written.
Renault & Xxxxxxx Solar Xxxxx Joint
Venture ("Lessor")
By: /s/ Xxxxxx X. XxXxx
------------------------------------
Date: 11/3/93
----------------------------------
Xxxxx Digital Services, Inc. ("Lessee")
By: /s/ [SIGNATURE ILLEGIBLE]
------------------------------------
President
Date: October 27, 1993
----------------------------------
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AGREEMENT
RE: That certain lease dated August 10, 1993 by and between Renault & Xxxxxxx
Solar Xxxxx Joint Venture, as Lessor, and Xxxxx Digital Services, Inc., as
Lessee, for premises located at 000 Xxxxx Xxxxxx, Xxxxxxxx View. It is
agreed as follows:
Operating Expenses. The current net net net annual expenses on 555 Xxxxx
are as follows:
Taxes $16,399.00
Insurance $ 2,703.00
----------
Total $19,102.00
The above translates into $0.0566/sq.ft./month and,
while there is no reason to expect that this number
will increase, Lessor agrees that it will pay the
excess amount over a 5% annual increase in this figure
per year during the lease term. Lessor agrees that it
will exempt Lessee from any real estate tax increase
brought about by sale or transfer of the property
during the initial lease term.
Lessee Improvement
Allowance. Lessor agrees that it will contribute up to $84,411.00
for Lessee's interior improvements and modifications,
including costs of space planning and construction
drawings. Said interior improvements shall be subject
to final approval by Lessor, which approval shall not
be unreasonably withheld.
Environmental
Indemnity. Lessor acknowledges that the results of certain
groundwater sampling conducted in September 1992
indicated the presence of the following compounds in
groundwater monitoring xxxxx adjacent to the premises:
Bromodichloromethane, Bromoform, Chloroform,
Dibromochloromethane, Toluene, Trichloroethane, and
cis -1,2 - Dichloroethene (the "Compounds"). Lessor
agrees that, for purposes of Paragraph 36 of the
Lease, such Compounds shall be deemed to have been
generated or stored prior to the Lease, and Lessor will
indemnify and hold Lessee harmless from the presence of
such Compounds on the Premises.
ADDENDUM ONE TO SUBLEASE
This Addendum One to Lease ("Addendum") is entered into as of ____________,
1996, by and among XXXXX CORPORATION ("Sublandlord"), NETSCAPE COMMUNICATIONS,
INC. ("Subtenant") and RENAULT & XXXXXXX SOLAR XXXXX JOINT VENTURE ("Master
Landlord), to be part of that certain Sublease dated October _______, 1996 (the
"Sublease"), between Sublandlord and Subtenant and to which Master Landlord has
granted its consent. The parties agree that the Sublease shall be amended,
supplemented and modified as follows:
1. Definitions. Unless otherwise defined in this Addendum, all the terms
used herein shall have the meaning and definitions given them in the Sublease.
2. Rent for Subleased Premises. Under the terms of section 2.2 of the
Sublease, installments of Rent are due from Subtenant to Sublandlord on November
1, 1996 and December 1, 1996 in the amounts of $18,420.00 and $19,187.50,
respectively; however, the parties desire to amend the Sublease to defer these
installments (hereinafter the "Deferred Rent"). Accordingly, the parties hereby
agree that section 2.2 of the Sublease shall be modified to provide that
consecutive monthly installments of Rent shall commence of January 1, 1997,
continuing on or before the first day of each calendar month during the Sublease
Term. The parties hereby further agree that the total Deferred Rent be paid by
Subtenant to Sublandlord in equal monthly installments beginning January 1, 1997
and continuing on or before the first day of each calendar month during the
Sublease Term, and that such Deferred Rent shall not be construed as "additional
rent" under paragraph 26 of the Master Lease.
3. Other Provisions. All other terms and conditions of the Sublease shall
remain in full force and effect, unaltered by this Addendum.
IN WITNESS WHEREOF, the parties have executed this Addendum as of the day
and year first above written.
XXXXX CORPORATION NETSCAPE COMMUNICATIONS, INC.
By: /s/ [SIGNATURE ILLEGIBLE] By: /s/ [SIGNATURE ILLEGIBLE]
--------------------------- ---------------------------
Vice President, Secretary & General
Counsel
Date: October 30, 1996 Date: 10/31/96
------------------------- -------------------------
RENAULT & XXXXXXX SOLAR XXXXX
JOINT VENTURE
By: /s/ Xxxxxx X. XxXxx
---------------------------
Date: 11/04/96
-------------------------
Lessor Lessee
Renault & Xxxxxxx Solar Xxxxx Xxxxx Digital Services, Inc.
Joint Venture
By: /s/ Xxxxxx X. XxXxx By: /s/ [SIGNATURE ILLEGIBLE]
--------------------------- ---------------------------
President
Date: 11/3/93 Date: October 27, 1993
------------------------- -------------------------
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