EXHIBIT 10.30
GUARANTY OF LEASE
THIS GUARANTY OF LEASE (this "Guaranty") is made as of 4/27/99 by
Oracle Corporation, a Delaware corporation ("Guarantor"), for the benefit of
CIRCLE STAR CENTER ASSOCIATES, L.P., a California limited partnership
("Landlord").
RECITALS
This Guaranty is made upon the basis of the following facts:
A. Network Computer, Inc. ("Tenant") desires to lease from Landlord
certain real property located at Xxx Xxxxxx Xxxx Xxx, Xxx Xxxxxx, Xxxxxxxxxx
(with possible expansions into the portion of the Project located at One Circle
Star Way) (the "Premises") pursuant to that certain Lease (the "Lease") of even
date herewith by and between Landlord and Tenant. Capitalized terms used in this
Guaranty but not defined herein shall have the meanings given them in the Lease.
B. Landlord is not willing to enter into the Lease unless Landlord
is provided this Guaranty in support of Tenant's obligations under the Lease.
Guarantor is willing to provide, and does hereby provide, this Guaranty to
Landlord in order to induce Landlord to enter into the Lease desired by Tenant.
C. Guarantor is willing to execute, deliver and perform this
Guaranty subject to the limitations and terms and conditions of Paragraphs 22,
23 and 24 below ("Qualifications").
NOW, THEREFORE, to induce Landlord to enter into the Lease,
Guarantor agrees as follows:
1. Absolute, Unconditional Guaranty. Subject to the limitations specified
in Paragraph 22 below, Guarantor unconditionally and absolutely guarantees to
Landlord the prompt payment when due of the Base Rent, the Additional Charges,
and all other Rent and other sums payable by Tenant under or in connection with
the Lease, including without limitation interest and late charges (such Base
Rent, Additional Charges, other Rent and other sums are referred to herein for
brevity as the "Rent"), whether such sums are payable to Landlord or to any
third party for the direct or indirect benefit of Landlord, and the full and
faithful performance and observance of any and all covenants, whether present or
future, contained in the Lease to be performed and observed by Tenant. Guarantor
unconditionally covenants to, and agrees with, Landlord that, if any failure
shall have occurred in the timely payment by Tenant of any Rent or in the full
and faithful performance and/or discharge of any of the other duties,
obligations or covenants contained in the Lease to be performed by Tenant,
Guarantor will immediately and unconditionally pay to Landlord such Rent, will
perform and/or discharge such duties, obligations and covenants, and shall
reimburse Landlord for any and all damages that may arise as a result of
Tenant's breach of Tenant's payment or performance obligations under the Lease.
2. Guaranty of Payment and Performance. This is a guaranty of payment and
performance and not merely of collection. The obligations of Guarantor hereunder
are absolute, primary, unconditional and irrevocable obligations, which shall be
enforceable by Landlord, at its election, simultaneously with or after
proceeding against Tenant or without the necessity of any suit or proceedings
against Tenant, and in any event, except as otherwise provided in Paragraph
24(c) below, without the
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necessity of any notice of non-payment, non-performance or non-observance, or of
any notice of acceptance of the Guaranty contained herein or any other notice
or demand to which a guarantor might otherwise be entitled or which may be
required to preserve any rights against a guarantor, all of which Guarantor
hereby expressly waives.
3. Waivers of Defenses. Guarantor expressly agrees that the liability of
Guarantor hereunder shall not be impaired, released, modified, stayed, limited,
terminated or discharged, in whole or in part, by any of the following,
notwithstanding that the same are made with or without notice to Guarantor, and
Guarantor hereby freely and voluntarily waives any defense based upon any of the
following:
a. Subject to the Qualifications, any amendment or modification of
the provisions of the Lease, whether or not consented to by Guarantor;
b. Any extensions of time for performance of the covenants under the
Lease to be performed by Tenant, whether given prior to or after default
thereunder;
c. Any delay by Landlord in asserting any claim, right or cause of
action arising under or in connection with the Lease or this Guaranty,
whether or not Guarantor changes its position in reliance on such delay or
the expectation of the continuance of such delay;
d. Any exchange, surrender or release, in whole or in part, of any
security which may be held by Landlord at any time for or under the Lease;
e. Any other guaranty now or hereafter executed by Guarantor or
anyone else;
f. The release, whether partial or full, of any other guarantor from
liability for the performance or observance of any of the covenants under
the Lease to be performed by Tenant, whether by operation of law or
otherwise;
g. Any lien, charge or encumbrance on or affecting any of the
respective assets and properties of Tenant or Guarantor;
h. Any rejection or disaffirmance of the Lease pursuant to the
Bankruptcy Code of the United States or other statute or from the decision
of any court interpreting any of the same;
i. Any tender of performance by or on behalf of Tenant after the
expiration of any period for performance described in Section 1161 of the
Code of Civil Procedure of the State of California, if, in the reasonable
opinion of Landlord, the acceptance of such tender would in any manner
impair the right of Landlord to terminate the Lease or to evict Tenant by
reason of the non-performance by Tenant;
j. Subject to the Qualifications, any other agreement which may now
or hereafter exist between Landlord and Tenant, whether in respect of the
Lease or any other subject matter and whether or not consented to by
Guarantor; or,
k. Any matter or thing whatsoever other than (i) full and timely
performance of all obligations guaranteed hereby, or (ii) Tenant's or
Landlord's written waiver of any obligation of Tenant made expressly for
the benefit of Guarantor.
4. Waivers as Election of Remedies and Suretyship Rights. Although it is
not the
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intention of Landlord, Tenant or Guarantor that the leasehold interest of Tenant
under the Lease be deemed a security interest, rather than a lease, Guarantor
waives all of the rights which may be waived by a guarantor pursuant to the
provisions of Section 2856 of the Civil Code of the State of California.
Guarantor further waives: (i) all rights and defenses arising out of an election
of remedies by Landlord, and (ii) all suretyship rights or defenses described in
Sections 2787 to 2855, inclusive, of the Civil Code of the State of California.
5. Assumption of Obligations and Waivers as to Financial Condition. The
obligations of Guarantor hereunder shall not be affected by any failure on the
part of Landlord to inform Guarantor concerning Tenant's financial condition or
notify Guarantor of any adverse change in Tenant's financial condition of which
Landlord becomes aware. Guarantor assumes the obligation to make such inquiries
with respect to such financial condition as such Guarantor deems necessary or
prudent in the circumstances.
6. Rights and Waivers as to Modifications of Lease or Other Obligations.
Subject to the Qualifications, at any time and from time to time, without
terminating, affecting or impairing the validity of this Guaranty or the
obligations of Guarantor hereunder, Landlord may deal with Tenant in the same
manner and as fully as if this Guaranty did not exist and shall be entitled (but
not obligated), among other things, to grant Tenant, without notice or demand
and without affecting Guarantor's liability hereunder, such extension or
extensions of time to perform, renew, compromise, accelerate or otherwise change
the time for payment of or otherwise change the terms of payment or any part
thereof contained in or arising under the Lease, or to waive any obligation of
Tenant to perform, any act or acts as the Landlord may deem advisable. If any
agreement or stipulation between Landlord and Tenant shall extend the time of
performance or modify any of the covenants of the Lease to be performed by
Tenant, Guarantor shall continue to be liable under this Guaranty according to
the provisions of any such agreement or stipulation.
7. Effect of Termination of the Lease; Guaranty of Payment of Damages. The
obligations guaranteed hereunder shall not be limited or terminated by the
termination of the Lease, by Landlord or otherwise, in accordance with law
following any default by Tenant in the performance of its obligations
thereunder. The obligations guaranteed hereunder expressly include any
obligations of Tenant which are accelerated in accordance with the provisions
of Section 1951.2 of the Civil Code of the State of California or any similar or
related provision of law, and Guarantor expressly hereby guarantees the prompt
payment of any damages or other sums to which Landlord may become entitled in
accordance with the provisions of Section 1951.2.
8. Waivers as to Litigation. Landlord shall have the right to enforce this
Guaranty with respect to Guarantor without pursuing any rights or remedies of
Landlord against Tenant or any other guarantor or any other party, or any
security Landlord may hold. Landlord may commence any action or proceeding based
upon this Guaranty (i) directly against Guarantor without making any other
guarantor, Tenant or anyone else a party defendant in such action or proceeding,
or (ii) jointly against Guarantor and/or Tenant. Any one or more successive
and/or concurrent actions may be brought hereon against Guarantor, and/or
against Guarantor and/or Tenant, with or without such action being brought
against other parties, as often as Landlord, in its sole discretion, may deem
advisable.
9. Waivers of Rights and Remedies of Guarantor Against Tenant. Until all
the covenants and conditions in the Lease to be performed and observed by Tenant
are fully performed and observed, Guarantor:
a. Shall have no right of subrogation against Tenant by reason of
any payments or acts of performance by Guarantor, in compliance with the
obligations of Guarantor hereunder;
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b. Waives any right to enforce any remedy which Guarantor now or
hereafter shall have against Tenant by reason of any one or more payments
or acts of performance in compliance with the obligations of Guarantor
hereunder; and
c. Subordinates any liability or indebtedness of Tenant now or
hereafter held by Guarantor to the obligations of Tenant to the Landlord
under the Lease.
10. Successors and Assigns. This Guaranty shall be binding upon Guarantor
and its successors and assigns, and shall inure to the benefit of and may be
enforced by the successors and assigns of Landlord or by any person to whom
Landlord's interest in the Lease, or any part thereof, including, without
limitation, all or any part of the Rent, may be assigned. Wherever in this
Guaranty reference is made to Landlord or Tenant, the same shall be deemed to
refer also to the then successor or assign of Landlord or Tenant.
11. Waiver of Defenses Pertaining to Bankruptcy, Disability or Cessation
of Liability of Tenant. Neither Guarantor's obligation to make payment or render
performance in accordance with the terms of this Guaranty nor any remedy for the
enforcement thereof shall be impaired, modified, stayed, released, limited,
terminated or discharged in any manner whatsoever by any impairment,
modification, change, release, limitation or stay of the liability of Tenant or
its estate in bankruptcy or any remedy for the enforcement thereof, resulting
from the operation of any present or future provision of the Bankruptcy Code of
the United States or other statute or from the decision of any court
interpreting any of the same, and Guarantor shall remain obligated under this
Guaranty as if no such impairment, stay, modification, change, release or
limitation had occurred. Guarantor waives any defense arising by reason of any
disability or other defense of Tenant, or by reason of the cessation from any
cause whatsoever of the liability, either in whole or in part, of Tenant to
Landlord, except, and to the extent, that such cessation shall be the result of
payment or performance of the obligation as to which the liability pertains.
Guarantor hereby acknowledges that the obligations of Guarantor hereunder are
independent of, and may exceed, the obligations of Tenant under the Lease.
12. Repayments and Reinstatement. If Landlord is obligated by any
bankruptcy or other law to repay to Tenant or Guarantor or to any trustee,
receiver or other representative of either of them any amounts previously paid,
then this Guaranty shall be reinstated in the amount of such repayment. Landlord
shall not be required to litigate or otherwise dispute its obligation to make
such repayments if it in good faith and on the advice of counsel believes that
such obligation exists.
13. Remedies Separate and Cumulative. All remedies of Landlord by reason
of this Guaranty are separate and cumulative remedies. Neither the existence nor
the exercise of any such remedy shall be deemed to preclude or prevent the
exercise of any other legal or equitable remedy available to Landlord hereunder.
14. Severability of Provisions. If any provision of this Guaranty or the
application thereof to any person or circumstance shall to any extent be held
void, unenforceable or invalid, then the remainder of this Guaranty shall not be
affected thereby, and each provision of this Guaranty shall be valid and
enforced to the fullest extent permitted by law. It is the intention of
Guarantor and Landlord that each provision of this Guaranty be fully
enforceable, and that all of the provisions hereof shall be interpreted so as to
avoid being found void, unenforceable or invalid.
15. [Intentionally Deleted]
16. No Waiver. No waiver or modification of any provision of this Guaranty
nor any termination of this Guaranty shall be effective unless expressly stated
in writing and signed by Landlord,
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and then only to the extent so expressly stated, and no such waiver shall be
applicable to any circumstance other than the specific instance for which it is
given. In no event shall a waiver of any provision of this Guaranty be implied
from any course of conduct on the part of Guarantor and/or Landlord and/or any
third party.
17. Representations and Warranties of Guarantor. Guarantor represents and
warrants to the Landlord that:
a. Guarantor is a corporation, (i) duly organized, validly existing
and in good standing under the laws of the state or country of its
incorporation, (ii) has the corporate power, authority and legal right to
conduct the business in which it is currently engaged, (iii) if not
incorporated in California, is duly qualified as a foreign corporation
under the laws of the State of California, and (iv) is in good standing
under the laws of the State of California.
b. Guarantor has the power, authority and legal right to make,
deliver and perform this Guaranty and has taken all necessary action to
authorize the execution, delivery and performance of this Guaranty. No
consent of any other person (including, without limitation, stockholders
and creditors of Guarantor), and no authorization of, notice to, or other
act by or in respect of Guarantor by or with any governmental authority,
agency or instrumentality is required in connection with the execution,
delivery, performance, validity or enforceability of this Guaranty that
has not already been taken or obtained. This Guaranty has been duly
executed and delivered by Guarantor and constitutes a legal, valid and
binding obligation of Guarantor, enforceable against Guarantor in
accordance with its terms.
c. The execution, delivery and performance by Guarantor of this
Guaranty will not violate any provision of any existing law or regulation
applicable to Guarantor or of any award, order or decree applicable to
Guarantor of any court, arbitrator or governmental authority, or of any
security issued by Guarantor or of any mortgage, indenture, lease,
contract or other agreement or undertaking to which Guarantor is a party
or by which Guarantor or any of its properties or assets is bound.
d. Guarantor has full and complete opportunity for obtaining access
to the financial records of Tenant and has fully satisfied itself with
regard to those records prior to entering into this Guaranty.
18. Jurisdiction, Venue and Choice of Law. This Guaranty and all rights,
obligations and liability arising hereunder shall be construed according to the
laws of the State of California. Guarantor hereby agrees that any action to
enforce the provisions of this Guaranty may be brought, in Landlord's sole
discretion, in any federal or state court located within the County of San
Mateo, State of California, and by execution and delivery of this Guaranty
Guarantor expressly, irrevocably and unconditionally (a) accepts for itself the
nonexclusive jurisdiction of such courts, (b) consents to and submits to the
exercise of personal jurisdiction by such courts, (c) agrees to be bound by any
final judgment rendered thereby in connection with this Guaranty, and (d) waives
(i) any objection Guarantor may now or hereafter have to the laying of venue in
any of such courts and (ii) any claim that any action or proceeding brought in
any such court has been brought in an inconvenient forum.
19. Attorney Fees. In the event of any litigation between Landlord and
Guarantor seeking a declaration of rights hereunder, damages for breach or any
other remedy pertaining this Guaranty, the prevailing party shall recover its
reasonable attorneys' fees and court costs.
20. Sublessees and Other Occupants. For purposes of this Guaranty and the
obligations
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and liabilities of Guarantor hereunder, the term "Tenant" shall include any and
all assignees, subtenants or others directly or indirectly leasing or occupying
the Premises or operating or conducting a business in or from the Premises.
21. Time. Time is of the essence of each and every provision hereof.
22. Limitation on Obligations of Guarantor.
a. Notwithstanding anything to the contrary herein, the total
obligations of Guarantor hereunder, whether for the payment of any Rent and/or
the performance of any of the obligations of Tenant under the Lease, shall be
limited to an amount which is equal to the lesser of (i) $10,000,000 or (ii) the
Maximum Formula Amount. The term "Maximum Formula Amount" shall mean a sum equal
to thirty-six (36) months of Base Rent and Additional Charges determined from
time to time (x) as of the date of any given written demand made on Guarantor
while the Lease is still in effect and/or (y) as of the day before the Lease
terminated, if and when the Lease terminates. Any payments by Guarantor
hereunder shall be credited against such maximum liability amount provided,
however, that in the event Guarantor makes a payment to Landlord under this
Guaranty and subsequently recovers all or a portion of such payment from Tenant,
the amount recovered shall be restored to the amounts available to be paid by
Guarantor to Landlord pursuant to this Guaranty. Notwithstanding anything to
the contrary herein, including but not limited to the provisions of Paragraph 24
below, no payment made by Guarantor to Landlord or in respect of any obligation
of Tenant under the Lease shall reduce the amount of Guarantor's maximum
obligations hereunder unless Landlord shall have made a written demand upon
Guarantor specifically requiring Guarantor to make payment and specifying that
such payment will apply to the maximum of Guarantor's obligations pursuant to
this Paragraph 22(a).
b. This Guaranty shall not apply to any Unapproved Increased Tenant
Obligations. The term "Unapproved Increased Tenant Obligations" shall mean any
one of the following obligations to the extent that it increases Tenant's
obligation under the Lease and is not approved in writing by Guarantor:
(i) Any increase in the amount of space leased as a part of
the Premises under the Lease pursuant to Paragraph 45 thereof.
(ii) Any amendment or modification of the Lease which has the
effect of increasing the Rent, Term or other financial obligations
of Tenant under the Lease, or decreasing the Tenant Improvement
Allowance made available by Landlord without adjustment to the
Rent.
Landlord may rely upon any approval or consent given by Guarantor which is
executed by any corporate officer of Guarantor specified in Paragraph 45 of the
Lease.
c. This Guaranty shall not apply to a default by a sublessee or
assignee of Tenant where all of the following circumstances are present:
(i) Landlord has approved the sublease or assignment in
writing (except where such approval followed any written threat by
Tenant that failure to do so would be a breach of the Lease by
Landlord or any order of any court); and
(ii) Guarantor has not approved such sublease or assignment.
Landlord may rely on any approval or consent given by Guarantor
which is executed by any corporate officer of Guarantor specified in
Paragraph 45 of the Lease.
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23. Termination of Guaranty. This Guaranty shall terminate and shall be of
no further force or effect and Landlord shall execute an agreement acknowledging
the termination of this Guaranty when either of the following conditions
described in clauses (i) or (ii) have been satisfied:
(i) (A) Tenant completes an initial public offering (or a series
of public offerings within a twenty four month period) which
results in Tenant raising a minimum of $40,000,000 (net
available to Tenant after payment of all costs associated with
such public offerings);
(B) Guarantor has delivered to Landlord a certificate
representing and warranting to Landlord that (based on the
information supplied by Tenant consisting of one or more
effective registration statements filed by Tenant with the
Securities and Exchange Commission or a certification by
Tenant's underwriter) the conditions specified in clause (i)
above has been satisfied, executed by any corporate officer of
Guarantor specified in Paragraph 45 of the Lease; and
(C) Tenant deposits with Landlord the Letter of Credit
specified in Paragraph 32 of the Lease at a time Tenant is not
in default (and no event has occurred which, with the passage
of time or giving of notice or both, would constitute a
default) under the Lease; or
(ii) Landlord determines after receipt of a written request by
Guarantor and Tenant together with such information as Landlord
shall reasonably request, that all of the circumstances and
conditions specified in Paragraph 32(c) of the Lease have occurred
entitling Tenant to a return of the Letter of Credit and at such
time, neither Tenant nor Guarantor, respectively, is in default
under the Lease or Guaranty (and no default has occurred which, with
the passage, of time or giving of notice or both, would constitute a
default) thereunder.
24. Guarantor's Rights to Cure. During the continuance of the Guaranty
until such time the Guaranty shall terminate pursuant to Paragraph 23 above,
Landlord and Guarantor agree as follows:
(a) Guarantor shall have the right, but not the obligation, at any
time prior to termination of the Lease to pay all Base Rent, Additional Charges
and other Rent due thereunder, to provide any insurance and make any other
payments, to make any repairs and improvements and do any other act or thing
required of Tenant thereunder, and to do any act or thing which may be necessary
and proper to be done in the performance and observance of the covenants,
conditions and agreements thereof to prevent the termination of the Lease. All
payments so made and all things so done and performed by Guarantor shall be as
effective to prevent a termination of the Lease as the same would have been if
made, done and performed by Tenant instead of by Guarantor.
(b) Should any default occur under the Lease, Guarantor shall have
thirty (30) days after receipt of notice from Landlord setting forth the nature
of such default within which to remedy such default.
(c) Landlord shall mail to Guarantor a duplicate copy by certified
mail of any and all notices which Landlord may from time to time give to or
serve upon Tenant pursuant to the provisions of the Lease; and no notice by
Landlord to Tenant hereunder shall be deemed to have been given as to Tenant
unless and until a copy thereof has been mailed to Guarantor.
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(d) Should the Lease be terminated by reason of any rejection of the
Lease in a bankruptcy proceeding or by Landlord following Tenant's default,
Landlord shall, subject to the terms and conditions of this subsection (e), upon
written request by Guarantor to Landlord made within thirty (30) days after such
termination, execute and deliver a new lease of the Premises to Guarantor for
the remainder of the term of the Lease with the same covenants, conditions and
agreements as are contained therein; provided, however, that Landlord's
execution and delivery of such new lease of the Premises shall be made without
representation or warranty of any kind or nature whatsoever, either express or
implied, including without limitation, any representation or warranty regarding
title to the Premises or the priority of such new lease; and Landlord's
obligations and liability under such new lease shall not be greater than if the
Lease had not terminated and Guarantor had become the Tenant thereunder.
Guarantor shall take the Premises "as is" in their then current condition. Upon
execution and delivery of such new lease, Guarantor, at its sole cost and
expense, shall be responsible for taking such action as shall be necessary to
cancel and discharge the Lease and to remove the Tenant named therein and any
other occupant from the Premises. Landlord's obligation to enter into such new
lease of the Premises with Guarantor shall be conditioned as follows: (i)
Guarantor shall have complied with the provisions of this Agreement applicable
prior to the gaining of possession; and (ii) Guarantor shall pay all costs and
expenses of Landlord, including without limitation, reasonable attorneys' fees,
real property transfer taxes and any escrow fees and recording charges, incurred
in connection with the preparation and execution of such new lease and any
conveyances related thereto. In the event Landlord enters into such new lease of
the Premises with Guarantor, Guarantor shall be fully responsible for the
obligations under the Lease and the limitations on the obligations of Guarantor
in Paragraph 22 above shall not be applicable to the obligations of Guarantor
under such new lease.
IN WITNESS WHEREOF, each Guarantor has executed this Guaranty as of the
day and year first written above.
"Guarantor" "Landlord"
Oracle Corporation Circle Star Center Associates, L.P.,
a California limited partnership
/s/ Xxxxx X. Xxxxx
--------------------------------- By: M-D VENTURES, INC.,
By: Xxxxx X. Xxxxx It General Partner
Its: Vice president and Treasurer
/s/ Xxxx Xxxxxx
--------------------------------
By: Xxxx Xxxxxx
Its: President
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