EXHIBIT 10.26
SUBLEASE AGREEMENT
BETWEEN
ORACLE CORPORATION
AND
NETWORK COMPUTER, INC.
September 17, 1997
SUBLEASE AGREEMENT
THIS SUBLEASE AGREEMENT (hereinafter referred to as "Sublease"),
entered into as of September 17, 1997, is made by and between ORACLE CORPORATION
(herein called "Sublandlord") and NETWORK COMPUTER, INC. (herein called
"Subtenant"), with reference to the following facts:
A. Pursuant to that certain Lease Agreement dated September 22, 1995,
Aetna Life Insurance Company, a Connecticut corporation ("Landlord"), as
Landlord, leased to Sublandlord, as tenant, certain space (the "Initial Master
Lease Premises" ) consisting of 7,026 rentable square feet located on the
eleventh (11th) floor of the Building known as First Interstate Plaza located at
000 Xxxxx Xxxx Xxxxxx, Xxxx Xxxx Xxxx, Xxxx (the "Building").
B. Pursuant to the terms of that certain First Amendment to Lease dated as
of July 9, 1996 (the "First Amendment") (the Lease referred to in Recital A, as
amended by the First Amendment, being referred to herein as the "Master Lease"),
Sublandlord leased from Landlord an additional 2,791 rentable square feet of
space located on the tenth (10th) floor of the Building (the "First Amendment
Master Lease Premises") (the First Amendment Master Lease Premises and the
Master Lease Premises being collectively referred to herein as the "Master Lease
Premises".
C. Subtenant wishes to sublease from Sublandlord, and Sublandlord wishes
to sublease to Subtenant, the entire First Amendment Master Lease Premises
(hereinafter called the "Subleased Premises"). The Subleased Premises is more
particularly described in Exhibit A attached hereto.
NOW, THEREFORE, in consideration of the foregoing, and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged by the parties, Sublandlord and Subtenant hereby agree as follows:
1. Sublease. Sublandlord hereby subleases to Subtenant and Subtenant
hereby subleases from Sublandlord for the term, at the rental, and upon all of
the conditions set forth herein, the Subleased Premises.
2. Term. The term of this Sublease ("Term") shall commence on August
1, 1997 (the "Commencement Date") and end on December 24, 1998 (the "Expiration
Date"), unless sooner terminated pursuant to any provision hereof.
3. Rent.
3.1 Rent Payments. From and after the Commencement Date
Subtenant shall pay to Sublandlord as Base Rent for the Subleased Premises
during the Term the sum of $3,837.63 per month. If the Term does not end on the
last day of a month, the Base Rent and Additional Rent (hereinafter defined) for
that partial month shall be prorated by multiplying the monthly Base Rent and
Additional Rent by a fraction, the numerator of which is the number of days of
the partial month included in the Term and the denominator of which is the total
number of days in the full calendar month. All Rent (hereinafter defined) shall
be payable in lawful money of the United States, by wire transfer or regular
bank check of Subtenant, or such other means as the parties may mutually agree,
to Sublandlord at the address stated herein or to such other persons or at such
other places as Sublandlord may designate in writing.
3.2 Operating Expenses.
(a) Definitions. For purposes of this Sublease and in
addition to the terms defined elsewhere in this Sublease, the following terms
shall have the meanings set forth below:
(1) "Additional Rent" shall mean the sums payable
pursuant to subparagraph 3.2(b) of this Sublease.
(2) "Operating Costs" shall mean the Additional
Rent (as defined in Section 4.2 of the Master Lease) charged by Landlord to
Sublandlord pursuant to Article 4 of the Master Lease.
(3) "Rent" shall mean, collectively, Base Rent,
Additional Rent, and all other sums payable by Subtenant to Sublandlord under
this Sublease, whether or not expressly designated as "rent", all of which are
deemed and designated as rent pursuant to the terms of this Sublease.
(4) "Subtenant's Percentage Share" shall mean
twenty eight and forty-three one hundredths percent (28.43%). Sublandlord and
Subtenant acknowledge that Subtenant's Percentage Share has been obtained by
dividing the rentable square footage of the Subleased Premises by the total
rentable square footage of the Master Lease Premises and multiplying such
quotient by 100. In the event Subtenant's Percentage Share is changed during a
calendar year by reason of a change in the rentable square footage of the
Subleased Premises or the Master Lease Premises, Subtenant's Percentage Share
shall thereupon be adjusted to equal the result obtained by dividing the
rentable square footage of the Subleased Premises by the rentable square footage
of the Master Lease Premises and multiplying such quotient by 100, and Sublease,
Subtenant's Percentage Share shall be determined on the basis of
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the number of days during such calendar year at each such percentage share.
(b) In addition to the Base Rent payable pursuant to
Section 3.1 above, from and after the Commencement Date, for each calendar year
of the Term, Subtenant, as Additional Rent, shall pay (i) Subtenant's Percentage
Share of Operating Costs payable by Sublandlord for the then current calendar
year. The Additional Rent payable pursuant to this Subsection (b) shall be
determined and adjusted in accordance with the provisions of Subsection 3.2(c)
below.
(c) The determination and adjustment of Additional Rent
contemplated under Subsection 3.2(b) above shall be made in accordance with the
following procedures:
(1) Upon receipt of any statement from Landlord
specifying the estimated Operating Costs to be charged to Sublandlord under the
Master Lease with respect to each calendar year, or as soon after receipt of
such statement as practicable, Sublandlord shall give Subtenant written notice
of its estimate of Additional Rent payable under Subsection 3.2(b) for the
ensuing calendar year, which estimate shall be prepared based on the estimate
received from Landlord (as Landlord's estimate may change from time to time),
together with a copy of the statement received from Landlord. Sublandlord's
estimate of Additional Rent to be paid by Subtenant pursuant to this Sublease
shall not exceed Subtenant's Percentage Share of Landlord's estimate delivered
to Sublandlord pursuant to the Master Lease (as Landlord's estimate may change
from time to time). On or before the first day of each month during each
calendar year, Subtenant shall pay to Sublandlord as Additional Rent one-twelfth
(1/12th) of such estimated amount together with the Base Rent.
(2) In the event Sublandlord's notice set forth in
Subsection 3.2 (c) (1) is not given on or before December of the calendar year
preceding the calendar year for which Sublandlord's notice is applicable, as the
case may be, then until the calendar month after such notice is delivered by
Sublandlord, Subtenant shall continue to pay to Sublandlord monthly, during the
ensuing calendar year, estimated payments equal to the amounts payable hereunder
during the calendar year just ended. Upon receipt of any such post-December
notice Subtenant shall (i) commence as of the immediately following calendar
month, and continue for the remainder of the calendar year, to pay to
Sublandlord monthly such new estimated payments and (ii) if the monthly
installment of the new estimate of such Additional Rent is greater than the
monthly installment of the estimate for the previous calendar year, pay to
Sublandlord within thirty (30) days of the receipt of such notice an amount
equal to the difference of such monthly installment multiplied by the number of
full and
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partial calendar months of such year preceding the delivery of such notice.
(d) Within thirty (30) days after the receipt by
Sublandlord of a final statement of Operating Cost from Landlord with respect to
each calendar year, Sublandlord shall deliver to Subtenant a statement of the
adjustment to be made pursuant to Section 3.2 hereof for the calendar year just
ended, together with a copy of the Statement received by Sublandlord from
Landlord. If on the basis of such statement Subtenant owes an amount that is
less than the estimated payments for the calendar year just ended, previously
paid by Subtenant, Sublandlord shall credit such excess to the next payments of
Rent coming due or, if the term of this Sublease is about to expire, promptly
refund such excess to Subtenant. If on the basis of such statement Subtenant
owes an amount that is more than the estimated payments for the calendar year
just ended previously made by Subtenant, Subtenant shall pay the deficiency to
Sublandlord within thirty (30) days after delivery of the statement from
Sublandlord to Subtenant.
(e) Sublandlord shall refund to Subtenant Subtenant's
Percentage Share of any sums actually refunded or reimbursed to Sublandlord
pursuant to the terms of the Master Lease, reduced by Subtenant's Percentage
Share of any amounts, including attorney's fees, expended by Sublandlord to
obtain such refund, reimbursement or payment.
(f) For partial calendar years during the Term, the
amount of Additional Rent payable pursuant to Subsection 3.2(d) that is
applicable to that partial calendar year shall be prorated based on the ratio of
the number of days of such partial calendar year falling during the term of this
Sublease to 365. The expiration or earlier termination of this Sublease shall
not affect the obligations of Sublandlord and Subtenant pursuant to Subsection
3.2(d), and such obligations shall survive, remain to be performed after, any
expiration or earlier termination of this Sublease.
4. Use and Occupancy.
4.1 Use. The Subleased Premises shall be used and occupied
only for the use permitted under the Master Lease by Subtenant, Subtenant's
employees and visitors and for no other use or purpose.
4.2 Compliance with Master Lease.
(a) Subtenant agrees that it will occupy the Subleased
Premises in accordance with the terms of the Master Lease and will not suffer to
be done or omit to do any act which may result in a violation of or a default
under any of the terms and conditions of the Master Lease, or render Sublandlord
liable for any damage, charge or expense thereunder. Subtenant further
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covenants and agrees to indemnify Sublandlord against and hold Sublandlord
harmless from any claim, demand, action, proceeding, suit, liability, loss,
judgment, expense (including attorneys fees) and damages of any kind or nature
whatsoever arising out of, by reason of, or resulting from, Subtenant's failure
to perform or observe any of the terms and conditions of the Master Lease or
this Sublease. Any other provision in this Sublease to the contrary
notwithstanding, Subtenant shall pay to Sublandlord as Rent hereunder any and
all sums which Sublandlord may be required to pay the Landlord arising out of a
request by Subtenant for additional Building services from Landlord (e.g.
charges associated with after-hour HVAC usage and overstandard electrical
charges).
(b) Subtenant agrees that Sublandlord shall not be
required to perform any of the covenants, agreements and/or obligations of
Landlord under the Master Lease. Sublandlord shall not be responsible for any
failure or interruption, for any reason whatsoever, of the services or
facilities that may be appurtenant to or supplied at the Building by Landlord or
otherwise, including, without limitation, heat, air conditioning, ventilation,
life-safety, water, electricity, elevator service and cleaning service, if any;
and no failure to furnish, or interruption of, any such services or facilities
shall give rise to any (i) abatement, diminution or reduction of Subtenant's
obligations under this Sublease, except to the extent that Sublandlord's
obligations are abated, diminished or reduced under the Master Lease or (ii)
liability on the part of Sublandlord. Notwithstanding the foregoing, Sublandlord
shall promptly take such action as may reasonably be indicated, under the
circumstances, to secure such performance upon Subtenant's request to
Sublandlord to do so and shall thereafter diligently prosecute such performance
on the part of Landlord.
5. Master Lease and Sublease Terms.
5.1 Subtenant acknowledges that Subtenant has reviewed and is
familiar with all of the terms, agreements, covenants and conditions of the
Master Lease.
5.2 This Sublease is and shall be at all times subject and
subordinate to the Master Lease.
5.3 The terms, conditions and respective obligations of
Sublandlord and Subtenant to each other under this Sublease shall be the terms
and conditions of the Master Lease except for those provisions of the Master
Lease which are directly contradicted by this Sublease in which event the terms
of the Sublease document shall control over the Master Lease. Therefore, for the
purposes of this Sublease, wherever in the Master Lease the word "Landlord" is
used it shall be deemed to mean the Sublandlord herein and wherever in the
Master Lease the word "Tenant" is used it shall be deemed to mean the Subtenant
herein (provided that with
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respect to Article 15 of the Initial Master Lease, Subtenant shall have no
further right to assign its interest in this Sublease or Sublease all or any
part of the Subleased Premises whatsoever. Any non-liability, release, indemnity
or hold harmless provision in the Master Lease for the benefit of Landlord that
is incorporated herein by reference, shall be deemed to inure to the benefit of
Sublandlord, Landlord, and any other person intended to be benefitted by said
provision, for the purpose of incorporation by reference in this Sublease. Any
right of Landlord under the Master Lease of access or inspection and any right
of Landlord under the Master Lease to do work in the Master Lease premises or in
the Building and any right of Landlord under the Master Lease in respect of
rules and regulations, which is incorporated herein by reference, shall be
deemed to inure to the benefit of Sublandlord, Landlord, and any other person
intended to be benefitted by said provision, for the purpose of incorporation by
reference in this Sublease.
5.4 For the purposes of incorporation herein, the terms of the
Master Lease are subject to the following additional modifications:
(a) In all provisions of the Master Lease (under the
terms thereof and without regard to modifications thereof for purposes of
incorporation into this Sublease) requiring the approval or consent of Landlord,
Subtenant shall be required to obtain the approval or consent of both
Sublandlord and Landlord.
(b) In all provisions of the Master Lease requiring
Tenant to submit, exhibit to, supply or provide Landlord with evidence,
certificates, or any other matter or thing, Subtenant shall be required to
submit, exhibit to, supply or provide, as the case may be, the same to both
Landlord and Sublandlord. In any such instance, Sublandlord shall determine if
such evidence, certificate or other matter or thing shall be satisfactory, in
the exercise of its reasonable discretion.
(c) Sublandlord shall have no obligation to restore or
rebuild any portion of the Sublease Premises after any destruction or taking by
eminent domain.
(d) In all provisions of the Master Lease requiring
Tenant to designate Landlord as an additional or named insured on its insurance
policy, Subtenant shall be required to so designate Landlord and Sublandlord on
its insurance policy.
5.5 Notwithstanding the terms of Section 5.3 above, Subtenant
shall have no rights nor obligations under the following parts, Sections and
Exhibits of the Master Lease: Article 1, 2, 3, 4 (the issue of pass-throughs
being governed by Section 3.2 above), 12.2, 15, 22, 24, and 33 of the Initial
Master Lease, Exhibits A and B of the Initial Master Lease, Section 2, 3, and 4
of Exhibit
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D to the Initial Master Lease, and Sections 4, 5 and 6 of the First Amendment.
5.6 During the Term and for all periods subsequent thereto
with respect to obligations which have arisen prior to the termination of this
Sublease, Subtenant agrees to perform and comply with, for the benefit of
Sublandlord and Landlord, the obligations of Sublandlord under the Master Lease
which pertains to the Subleased Premises and/or this Sublease, except for those
provisions of the Master Lease which are directly contradicted by this Sublease,
in which event the terms of this Sublease document shall control over the Master
Lease.
6. Termination of Master Lease.
6.1 If for any reason the term of the Master Lease shall
terminate prior to the scheduled Expiration Date, this Sublease shall thereupon
be terminated and Sublandlord shall not be liable to Subtenant by reason
thereof, except if such termination results from Sublandlord's breach of its
obligations hereunder; in no event shall Sublandlord be liable to Subtenant for
consequential damages or the loss of Subtenant's profits or business.
6.2 Sublandlord covenants to maintain the Master Lease in full
force and effect, without default, throughout the term of this Sublease.
7. Indemnity. Subtenant shall indemnify, defend and hold harmless
Sublandlord from and against all losses, costs, damages, expenses and
liabilities, including, without limitation, reasonable attorneys' fees and
disbursements, which Sublandlord may incur or pay out (including, without
limitation, to the landlord under the Master Lease) by reason of (i) any
accidents, damages or injuries to persons or property occurring in, on or about
the Subleased Premises (unless the same shall have been caused by Sublandlord's
negligence or wrongful act, (ii) any breach or default hereunder on Subtenant's
part, (iii) the successful enforcement of Sublandlord's rights under this
Section 7 or any other Section of this Sublease, (iv) any work done after the
date hereof in or to the Subleased Premises except if done by Sublandlord or
Landlord under the Master Lease, or (v) any act, omission or negligence on the
part of Subtenant and/or its officers, partners, employees, agents, customers
and/or invitees, or any person claiming through or under Subtenant relating to
Subtenant's use of the Subleased Premises pursuant to this Sublease.
8. Limitation on Liability. Sublandlord shall not be liable for
personal injury or property damage to Subtenant, its officers, agents,
employees, invitees, guests, licensees or any other person in the Sublease
Premises, regardless of how such injury or damage may be caused (except to the
extent arising solely
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out of Sublandlord's gross negligence or willful misconduct). Any property of
Subtenant kept or stored in the Sublease Premises shall be kept or stored at the
sole risk of Subtenant. Subtenant shall hold Sublandlord harmless from any
claims arising out of any personal injury or property damage occurring in the
Sublease Premises, including subrogation claims by Subtenant's insurance
carrier(s).
9. Consents. In any instance when Sublandlord's consent or approval
is required under this Sublease, Sublandlord's refusal to consent to or approve
any matter or thing shall be deemed reasonable if, among other matters, such
consent or approval is required under the provisions of the Master Lease
incorporated herein by reference but has not been obtained from Landlord. Except
as otherwise provided herein, Sublandlord shall not unreasonably withhold, or
delay its consent to or approval of a matter if such consent or approval is
required under the provisions of the Master Lease and Landlord has consented to
or approved of such matter. If Subtenant shall seek the approval by or consent
of Sublandlord and Sublandlord shall fail or refuse to give such consent or
approval, Subtenant shall not be entitled to any damages for any withholding or
delay of such approval or consent by Sublandlord, it being agreed that
Subtenant's sole remedy in connection with an alleged wrongful refusal or
failure to approve or consent shall be an action for injunction or specific
performance and that said remedy of an action for injunction or specific
performance shall be available only in those cases where Sublandlord shall have
expressly agreed in this Sublease not to unreasonably withhold or delay its
consent.
10. Attorney's Fees. If Sublandlord, Subtenant or Landlord brings an
action to enforce the terms hereof or to declare rights hereunder, the
prevailing party who recovers substantially all of the damages, equitable relief
or other remedy sought in any such action on trial and appeal shall be entitled
to his reasonable attorney's fees to be paid by the losing party as fixed by the
Court.
11. "As-Is" Occupancy. Sublandlord shall deliver, and Subtenant
shall accept, possession of the Subleased Premises in their "AS IS" condition as
the Subleased Premises exists on the date hereof, for purposes of Subtenant's
general contractor constructing Subtenant's improvements. Sublandlord shall have
no obligation to furnish, render or supply any work, labor, services, materials,
furniture, fixtures, equipment, decorations or other items to make the Subleased
Premises ready or suitable for Subtenant's occupancy. In making and executing
this Sublease, Subtenant has relied solely on such investigations, examinations
and inspections as Subtenant has chosen to make or has made and has not relied
on any representation or warranty concerning the Subleased Premises or the
Building, except as expressly set forth in this Sublease. Subtenant acknowledges
that Sublandlord has
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afforded Subtenant the opportunity for full and complete investigations,
examinations and inspections of the Subleased Premises and the common areas of
the Building. Subtenant acknowledges that it is not authorized to make or do any
alterations or improvements in or to the Subleased Premises except as permitted
by the provisions of this Sublease and the Master Lease and that upon
termination of this Sublease, Subtenant shall deliver the Subleased Premises to
Sublandlord in the same condition as the Subleased Premises were at the
commencement of the Term hereof, reasonable wear and tear excepted.
12. Parking. During the Term hereof and provided that Subtenant
timely pays all amounts payable therefor pursuant to the provisions of Paragraph
1 of Exhibit D to the Master Lease, Subtenant and its employees shall be
permitted to use five (5) unassigned non-exclusive and unlabelled parking spaces
in the Parking Facility (as defined in the Master Lease).
13. Notices. Any notice by either party to the other required,
permitted or provided for herein shall be valid only if in writing and shall be
deemed to be duly given only if (a) delivered personally, or (b) sent by means
of Federal Express, UPS Next Day Air or another reputable express mail delivery
service guaranteeing next day delivery, or (c) sent by United States Certified
or registered mail, return receipt requested, addressed (i) if to Sublandlord,
at the following addresses:
Oracle Corporation
000 Xxxxxx Xxxxxxx
Xxx XXX0
Xxxxxxx Xxxxxx, XX 00000
Attn: Lease Administrator
With a copy to:
Oracle Corporation
000 Xxxxxx Xxxxxxx
Xxx 0XX0
Xxxxxxx Xxxxxx, XX 00000
Attn: Legal Department
and (ii) if the Subtenant, at the Subleased Premises.
or at such other address for either party as that party may designate by notice
to the other A notice shall be deemed given and effective, if delivered
personally, upon hand delivery thereof, if sent via express mail, upon hand
delivery, and if mailed by United States certified or registered mail, five (5)
days following such mailing in accordance with this Section.
14. Complete Agreement. There are no representations, warranties,
agreements, arrangements or understandings, oral or
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written, between the parties or their representatives relating to the subject
matter of this Sublease which are not fully expressed in this Sublease. This
Sublease cannot be changed or terminated nor may any of its provisions be waived
orally or in any manner other than by a written agreement executed by both
parties.
15. Furniture and Equipment Lease. Concurrently with the execution
and delivery of this Sublease, Sublandlord and Subtenant are executing that
certain Furniture and Equipment Lease attached hereto as Exhibit B. The parties
hereto acknowledge that the Furniture and Equipment Lease shall govern
Subtenant's use of certain items of furniture and equipment belonging to
Sublandlord within the Sublease Premises, and that a default under the Furniture
and Equipment Lease shall automatically constitute a default under this
Sublease.
16. Interpretation. This Sublease shall be governed by and construed
in accordance with the laws of the State of California. If any provision of this
Sublease or the application thereof to any person or circumstance shall, for any
reason and to any extent, be invalid or unenforceable, the remainder of this
Sublease and the application of that provision to other persons or circumstances
shall not be affected but rather shall be enforced to the extent permitted by
law. The captions, headings and titles, if any, in this Sublease are solely for
convenience of reference and shall not affect its interpretation. This Sublease
shall be construed without regard to any presumption or other rule requiring
construction against the party causing this Sublease or any part thereof to be
drafted. If any words or phrases in this Sublease shall have been stricken out
or otherwise eliminated, whether or not any other words or phrases have been
added, this Sublease shall be construed as if the words or phrases so stricken
out or otherwise eliminated were never included in this Sublease and no
implication or inference shall be drawn from the fact that said words or phrases
were so stricken out or otherwise eliminated. Each covenant, agreement,
obligation or other provision of this Sublease shall be deemed and construed as
a separate and independent covenant of the party bound by, undertaking or making
same, not dependent on any other provision of this Sublease unless otherwise
expressly provided. All terms and words used in this Sublease, regardless of the
number or gender in which they are used, shall be deemed to include any other
number and any other gender as the context may require. The word "person" as
used in this Sublease shall mean a natural person or persons, a partnership, a
corporation or any other form of business or legal association or entity.
17. Counterparts. This Sublease may be executed in separate
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same instrument. This Sublease shall be
fully executed when each party whose signature is required has signed and
delivered to each of the
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parties at least one counterpart, even though no single counterpart contains the
signatures of all parties hereto.
18. Sublandlord's Option to Terminate. Sublandlord shall have the
right, from time to time during the Term, to terminate this Sublease with
respect to all or any portion of the Sublease Premises. Any such termination
shall be affected by at least sixty (60) days' advance written notice to
Subtenant, which notice shall specify the portion of the Sublease Premises which
shall be subject to such termination, and the effective date of such
termination. Prior to the effective date of such termination as specified in
Sublandlord's notice, Subtenant shall vacate such portion of the Sublease
Premises, leaving the same broom-clean and free of Subtenant's equipment,
personnel and personal property (except such items of furniture and/or equipment
which Subtenant leases from Sublandlord pursuant to the Furniture and Equipment
Lease attached hereto as Exhibit B, which Sublandlord has specified that
Subtenant must leave behind). On the later to occur of (i) the effective date of
such termination as specified in the Sublandlord's notice to Subtenant and (ii)
the date upon which Subtenant actually vacates the subject space pursuant to the
provisions of the immediately preceding sentence, this Sublease shall be revised
to provide that the Sublease Premises shall consist only of the portion of the
Master Lease Premises which Subtenant may remain in occupancy of pursuant to the
provisions of Sublandlord's notice (provided that if and to the extent that
clause (ii) also is applicable due to Subtenant's failure to timely vacate the
subject space, the provisions of Section 20.2 of the Master Lease shall govern
and, provided further, that notwithstanding the provisions of said Section 20.2
of the Master Lease, Subtenant shall pay holdover rent in the amount of 150% of
the previously applicable Base Rent during the entirety of such holdover);
concurrently, the Base Rent and Subtenant's Percentage Share shall be
appropriately adjusted to reflect the relationship between the Sublease
Premises, as so reduced, and the Master Lease Premises. As soon as reasonably
possible, Sublandlord shall present to Subtenant, for execution by Subtenant, an
amendment to this Sublease setting forth such changes to the Sublease Premises,
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Base Rent payable, and Subtenant's Percentage Share, together with an amendment
to the Furniture and Equipment Lease, reflecting the reduction of the Sublease
Premises in the manner described in this Section 18.
IN WITNESS WHEREOF, the parties hereto hereby execute this Sublease
as of the day and year first above written.
SUBLANDLORD:
ORACLE CORPORATION, a Delaware
corporation
By: /s/ Xxxxx Xxxxx
----------------------------------------
Print Name: XXXXX XXXXX
--------------------------------
Title: VP AND CORPORATE TREASURER
-------------------------------------
SUBTENANT:
NETWORK COMPUTER, INC., a
Delaware corporation
By: /s/ Xxxxx Xxxxx
----------------------------------------
Print Name: XXXXX XXXXX
--------------------------------
Title: CEO 9/24/97
-------------------------------------
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EXHIBIT "A"
[Floor Plan
First Interstate Plaza]
TENTH
FLOOR PLAN [ARROW]
10th
================================================================================
Xxxxxx X. Xxxxx ALA First Interstate Plaza
ARCHITECT 000 X. Xxxx Xxxxx
Xxxx Xxxx Xxxx, Xx. 00000
[ILLEGIBLE] (000) 000-0000
[ILLEGIBLE]
EXHIBIT B
FURNITURE AND EQUIPMENT LEASE
This Furniture and Equipment Lease ("Lease") is entered into as of
September 17, 1997, by and between Oracle Corporation ("Lessor"), and NETWORK
COMPUTER, INC. ("Lessee"), with reference to the following facts:
A. Lessor currently leases space (the "Premises") in that certain office
building known as First Interstate Place located at 000 Xxxxx Xxxx Xxxxxx, Xxxx
Xxxx Xxxx, Xxxx (the "Building") pursuant to the terms of a lease with Aetna
Life Insurance Company ("Master Lease").
X. Xxxxxx and Lessee are entering into that certain Sublease of even date
herewith (the "Sublease") pursuant to which Lessor will sublet a portion of the
Premises (the "Subleased Premises") to Lessee for an initial term of
approximately seventeen (17) months, subject to certain cancellation rights set
forth therein. In addition to subletting the Subleased Premises from Lessor,
Lessee desires to lease from Lessor certain furniture, equipment and furnishings
owned or leased by Lessor and presently located in the Building, and Lessor is
willing to lease the same to Lessee on the terms, covenants and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the covenants herein contained, and
for other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto do hereby agree as follows:
1. LEASE. Lessor agrees to lease to Lessee and Lessee agrees to lease from
Lessor, subject to the terms, covenants and conditions herein, the items of
furniture, equipment, furnishings and other personal property described in
Exhibit A attached hereto and incorporated herein by this reference (the
"Furniture"). Lessor being the owner of the Furniture for all purposes, this
Lease is intended to constitute a true lease of the Furniture and not an
agreement for the sale of or the grant of a security interest in any Furniture.
Lessee's interest in the Furniture is limited to a leasehold.
2. TERM. The term of this Lease shall commence upon the commencement date
of the term of the Sublease referred to above and, unless earlier terminated as
provided herein, shall continue for so long as the Sublease shall remain in
effect. Upon the commencement of the term of this Lease, Lessor and Lessee shall
conduct an inspection of the Building in order to identify and inventory the
Furniture and verify its then current condition.
3. RENT. Lessee shall pay to Lessor rent for the Furniture in the amount
of Two Thousand Six Hundred One and 12/100 Dollars ($2,685.05) per month. Lessee
shall commence payment of such monthly rent on the later to occur of (1)
commencement date of the term of the Sublease, which date shall be August 1,
1997 and (ii) the date of Lessee's delivery to Lessor of an executed copy of
this Lease (in which event Lessee's payment shall include for all rent accrued
from August 1, 1997), unless otherwise determined, notwithstanding any earlier
commencement of the term of this Lease. Such monthly rent shall be payable in
advance on the first day of each calendar month during the term hereof, in
lawful money of the United States (via wire transfer or other method mutually
acceptable to Lessor and Lessee), to Lessor at its offices at 000 Xxxxxx
Xxxxxxx, Xxx XXX0, Xxxxxxx Xxxx, Xxxxxxxxxx 00000, Attention: Lease
Administrator, or to such other person or at such other place as Lessor may from
time to time designate in writing. All rent and other amounts payable hereunder
shall be due and payable without any offset, deduction, prior notice or demand
and without any abatement, reduction, counterclaim or other right Lessee may
claim against Lessor.
4. CONDITION OF FURNITURE. Upon the commencement of the term of this
Lease, Lessor shall deliver the Furniture to Lessee in good order and repair,
subject to normal wear and tear. Lessee acknowledges that Lessor is not a seller
under the California Uniform Commercial Code and that Lessor makes no warranties
of any nature, including, but not limited to, warranties as to the
merchantability of the Furniture, its fitness for any particular purpose, its
installation, its size, design, capacity or condition, its quality, its
compliance with any law, rule, specification or contract or latent defects.
5. LOCATION; LESSOR'S INSPECTIONS; LABELS. All of the Furniture shall
remain at the Building and shall not be removed therefrom for any reason
whatsoever without Lessor's prior written consent. Lessor shall have the right
to enter the Building and inspect the Furniture at any time during normal
business hours and upon reasonable advance notice given to Lessee. If Lessor
supplies Lessee with labels stating that the Furniture or any item thereof is
owned by Lessor (or by a primary lessor), Lessee shall affix and keep the same
on each item of Furniture, Lessee shall not alter, deface or remove any of the
same and Lessee shall promptly replace any such labels that may be removed,
defaced or destroyed. Lessee shall not permit the name of any person other than
Lessor (or any primary lessor identified to Lessee) to be placed on any item of
Furniture in a manner that might be interpreted as a claim of any right, title
or interest in or to such item.
6. TITLE. Title to each item of Furniture (whether full legal title or
Lessor's interest as primary lessee) shall be and remain with Lessor at all
times, and Lessee shall at no time make any assertion to the contrary. Lessee
shall have no right, title
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or interest in or to any of the Furniture except its leasehold interest solely
as lessee as provided herein.
Each item of Furniture is and shall at all times remain personal
property, notwithstanding the manner in which it may now or hereafter be affixed
or attached to the Building.
7. REPAIRS AND MAINTENANCE; USE; ALTERATIONS. Lessee, at its sole expense,
shall keep the Furniture in good working order, condition and repair throughout
the term of this Lease, ordinary wear and tear excepted. Lessee represents,
warrants and agrees that all Furniture will be used solely for business purposes
and not for personal, family or household purposes. Lessee shall use the
Furniture in a careful, proper manner only for the purposes for which it is
intended to be used.
8. SURRENDER. Lessee acknowledges and agrees that each item of the
Furniture will have significant value to Lessor at the expiration or earlier
termination of the term of this Lease, and that Lessor intends to retake
possession of the Furniture at that time. Lessor shall notify Lessee of Lessor's
schedule for removal of the Furniture, and Lessee shall cooperate with Lessor in
effecting the removal of the Furniture from the Building in accordance with
Lessor's schedule. The parties shall agree upon an equitable proration of the
rent for the final month of the term hereof based upon Lessor's schedule for
removal of the Furniture.
9. RISK OF LOSS. Lessee shall at all times bear the entire risk of loss,
theft, destruction or damage, whether partial or complete and whether or not
insured, of each item of the Furniture, and of any condemnation, confiscation,
requisition, seizure, forfeiture or other taking of title to or use of each item
of Furniture, whether partial or complete, from any cause whatsoever (herein
"Loss or Damage"), except to the extent that any such Loss or Damage may result
from the negligence or willful misconduct of Lessor, or its agents, contractors
or employees; and Lessee shall indemnify and defend Lessor and hold Lessor
harmless from and against any and all Loss or Damage, except to the extent that
any such Loss or Damage may result from the negligence or willful misconduct of
Lessor, or its agents, contractors or employees, until such time as such item
of Furniture shall have been returned to Lessor and received by Lessor in
accordance with all terms and conditions of this Lease. No Loss or Damage shall
release, impair or otherwise affect Lessee's obligation to pay rent or any other
obligation of Lessee under this Lease. In the event of any Loss or Damage to any
item of Furniture, Lessee shall notify Lessor thereof in writing within five (5)
days after the occurrence of such Loss or Damage, and Lessee shall immediately,
at Lessee's option and at Lessee's sole expense, with respect to such item of
Furniture, (a) place the same in good working order, condition and repair, (b)
replace the same with like Furniture. in good working order, condition and
repair, having equivalent value and utility and with
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clear title therein in Lessor (which shall thereupon be deemed substituted for
such item of Furniture for all purposes), or (c) pay to Lessor an amount equal
to the replacement cost of such item of Furniture.
10. INSURANCE. Lessee shall, at its own expense, at all times during the
term of this Lease, insure the Furniture against risks customarily insured
against (as reasonably approved by Lessor) on similar items of furniture in an
amount not less than the full cost of replacement of the Furniture. The
insurance shall provide thirty (30) days prior written notice to Lessor in the
event of material change to or cancellation or expiration of the insurance.
Lessee shall deliver to Lessor certificates of such insurance and evidence
satisfactory to Lessor of Lessee's payment when due of all premiums on such
insurance. Without relieving Lessee of its obligations under section 9 above, in
the event of any Loss or Damage, if Lessor receives any insurance proceeds as a
consequence of being the loss payee under any insurance policy maintained by
Lessee, Lessor shall make such proceeds available to Lessee for replacement of
any items of Furniture damaged or destroyed.
11. LIENS; TAXES. During the term of this Lease, Lessee shall keep the
Furniture free of all claims, liens, charges resulting from the action of
Lessee. During the term of this Lease, Lessee shall comply with all federal,
state and local laws requiring the filing of ad valorem and other tax returns
relating to the Furniture. If such returns are required to be filed by Lessor,
Lessee shall so notify Lessor in writing, whereupon Lessee shall provide Lessor
promptly on request such information as Lessor shall require to complete such
returns, and Lessor shall file such returns. If Lessee does not pay any of the
same when due, Lessor shall have the right, but shall not be obligated, to pay
the same, in which event Lessee shall pay to Lessor on demand, as additional
rent, an amount equal to all amounts paid or expenses incurred by Lessor,
together with interest thereon at the annual rate of twelve percent or, if
lower, the maximum rate that Lessor may lawfully charge.
12. INDEMNITY. Lessee shall indemnify and defend (by counsel engaged by
Lessee, but satisfactory to Lessor) Lessor and its agents, employees, officers
and directors and hold them harmless from and against any and all claims,
liabilities, losses, damages and expenses, including, without limitation, all
court costs and attorneys' and expert witnesses' fees and costs, arising from or
in connection with or based on (a) the possession, condition, operation or use
(by whomever operated or used) of any of the Furniture, or (b) the performance
or enforcement of any of the terms, or any noncompliance or nonperformance of
any condition, of this Lease, except to the extent that any of the foregoing
result from the negligence or willful misconduct of Lessor, or its agents,
contractors or employees, or from any breach on the part of Lessor
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under any contract made by Lessor affecting any of the Furniture. Lessee shall
satisfy, pay and discharge any and all settlements, judgments and fines that may
be recovered against Lessor in connection therewith. Lessor shall give Lessee
written notice of any such claim.
13. ASSIGNMENT. Lessee expressly covenants and agrees that it shall not
assign, mortgage or encumber this Lease or sublet or lend any of the Furniture
or permit any of the Furniture to be used by anyone other than Lessee. No
assignment or sublease by Lessee shall in any event relieve or release Lessee of
or from any debt, duty, obligation or liability hereunder, and Lessee shall
remain primarily liable hereunder.
Lessor, in its sole and absolute discretion, may sell, assign,
transfer, pledge, hypothecate, grant security interests in or otherwise encumber
or dispose of this Lease or any interest herein, as a whole or in part, without
notice to Lessee. Notwithstanding any assignment by Lessor, Lessor warrants that
so long as Lessee is not in default hereunder, Lessee shall quietly enjoy use of
the Furniture subject to the terms and conditions of this Lease and, as part of
any such assignment, the assignee thereunder shall agree that Lessee's rights
hereunder in and to the Furniture shall not be disturbed so long as Lessee is
not in default hereunder. Lessor shall notify Lessee in writing of any transfer
of this Lease by Lessor; and Lessee agrees to acknowledge receipt of and comply
with any notice thereof given by Lessor in writing and to provide Lessor or its
assignee with such agreements, consents, conveyances, documents and certificates
as may be reasonably requested by Lessor or its assignee to effect, facilitate
or perfect any assignment by Lessor.
Subject to the foregoing, this Lease shall inure to the benefit of
and bind Lessor, Lessee and their respective heirs, legatees, personal
representatives, successors and assigns.
14. DELINQUENCY CHARGE. Should Lessee fail to pay any rent hereunder or
any other sum required to be paid to Lessor by Lessee on the date due, Lessee
agrees to pay to Lessor, on demand, (a) an amount equal to five percent (5%) of
such rent or other sum, and (b) all of Lessor's costs and expenses incurred or
paid in collecting the delinquent payment, with interest thereon from the date
paid by Lessor until paid by Lessee at the annual rate of twelve percent or, if
lower, the maximum rate Lessor may lawfully charge.
15. DEFAULT. Any of the following shall constitute a "default" hereunder:
(a) Lessee fails to pay when due any rent or any other sum required to be paid
hereunder and such failure continues for ten days from written notice thereof
from Lessor; (b) Lessee fails to observe, keep or perform any other term,
covenant or condition of this Lease and such failure continues for
B-5
thirty days from written notice thereof from Lessor; (c) Lessee becomes
insolvent or admits in writing its inability to pay or fails to pay its debts as
they become due, or makes an assignment for the benefit of its creditors, or
applies for or acquiesces in the appointment of a receiver, trustee or other
custodian for any of its properties or assets; (d) any proceeding shall be
commenced by or against Lessee for any relief which includes, or might result
in, any modification of the obligations of Lessee under this Lease or relief
under any bankruptcy or insolvency laws or other laws relating to the relief of
debtors, adjustment of indebtedness, reorganization, composition or extension,
unless, in the case of an involuntary proceeding not consented to or acquiesced
in by Lessee, such proceeding shall have been dismissed within 90 days after the
same shall have been commenced (provided that this Lease shall terminate
automatically if Lessee fails to pay any rent when due hereunder after a
proceeding has been commenced by or against Lessee under the United States
Bankruptcy Code); (e) Lessee voluntarily or involuntarily, by operation of law
or otherwise, removes, sells, transfers, assigns, grants any security interest
in, pledges, hypothecates, encumbers, parts with possession of or sublets this
Lease or any Furniture, or attempts to do so, except only as and to the extent
expressly permitted hereby; or (f) Lessee commits an event of default under the
Sublease.
16. REMEDIES. On any default hereunder by Lessee, Lessor shall have the
right, but shall not be obligated, to exercise at any time or from time to time
thereafter any one or more of the following rights and remedies, any of which
rights and remedies may be exercised by Lessor without notice to or demand on
Lessee:
(a) Advance Rent. If Lessee shall have paid any rent hereunder in
advance of the due date therefor, Lessor may apply any or all thereof to any
obligation of Lessee hereunder.
(b) Recovery of Sums Due and to Become Due. In lieu of such
acceleration, Lessor may recover all rent and other amounts due as of the date
of such default and recover all rent and other sums as they accrue thereafter.
(c) Proceeding in Court. Lessor may proceed by appropriate court
action, either at law or in equity, to enforce performance by Lessee of the
terms and conditions of this Lease or to recover damages for the breach hereof
or to regain possession of the Furniture.
(d) Termination. Any of the foregoing actions by Lessor under this
section 16 shall not constitute a termination of this Lease or any of Lessee's
obligations under this Lease. Lessor may, in its exclusive discretion, terminate
this Lease by express written notice thereof to Lessee.
B-6
(e) Other Remedies. Lessor may pursue any other remedy available to
Lessor at law or in equity. Under all circumstances, Lessee shall also pay to
Lessor, on demand, an amount equal to any and all incidental damages sustained
by Lessor, including, without limitation, all costs of collection, repossession,
transportation, storage, repair, reconditioning, resale or other disposition of
the Furniture, all attorneys', expert witnesses' and accountants' fees and costs
(whether or not suit is commenced), court costs and other costs and expenses
incurred in exercising any rights or remedies hereunder or in enforcing any of
the terms or conditions hereof.
The discount rate for purposes of determining present value shall be
a rate equal to one percent in excess of the discount rate of the Federal
Reserve Bank of San Francisco as of the date of entry of judgment in favor of
Lessor.
The provisions of this section 16 shall not prejudice Lessor's right
to recover or prove damages for unpaid rent accrued prior to default. No remedy
referred to in this section 16 is intended to be exclusive, but each shall be
cumulative and in addition to any other remedy referred to above or otherwise
available to Lessor at law or in equity and may be exercised concurrently or
consecutively. The exercise or beginning of exercise by Lessor of any one or
more of such remedies shall not preclude the simultaneous or later exercise by
Lessor of any or all of such other remedies. Lessor's remedies shall be
available to Lessor's successors and assigns.
17. FURTHER ASSURANCES. Lessee will promptly and duly execute and deliver
to Lessor such further documents and assurances and take such further action as
Lessor may from time to time reasonably request in order more effectively to
carry out the intent and purposes of this Lease and to establish and protect the
rights, interests and remedies intended to be created in favor of Lessor
hereunder, including, without limitation, the execution and filing of financing
statements and continuation statements with respect to the Furniture and this
Lease.
18. PERFORMANCE BY LESSOR OF LESSEE'S OBLIGATIONS. If Lessee fails
promptly to perform any of its obligations under this Lease, Lessor, on written
notice to Lessee, may (but shall not be obligated to and shall not incur any
liability or obligation to Lessee or any third party for failure to) perform the
same for the account of Lessee without waiving Lessee's failure as a default.
All sums paid or expense or liability incurred by Lessor in such performance
(including reasonable legal fees) shall be promptly reimbursed by Lessee on
demand of Lessor, together with interest thereon from the date paid by Lessor to
the date reimbursed by Lessee at the annual rate of twelve percent or, if lower,
the maximum rate that Lessor may lawfully charge.
B-7
19. NOTICES. All notices, consents and other communications required or
permitted under this Lease shall be in writing and shall be deemed duly given
and received when delivered personally or three days after mailing if mailed by
first class or certified mail, charges or postage prepaid, properly addressed to
Lessor or Lessee, as the case may be, at its address set forth below, or at such
other address as either party shall from time to time designate by notice under
this section 19.
Lessor: Oracle Corporation
000 Xxxxxx Xxxxxxx
Xxx XXX0
Xxxxxxx Xxxxxx, XX 00000
Attn: Lease Administrator
With copy to: Oracle Corporation
000 Xxxxxx Xxxxxxx
Xxx 0XX0
Xxxxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Lease Administrator
Lessee: At the Subleased Premises
20. ENFORCEMENT. This Lease shall be deemed to have been entered into in
the County of San Mateo, State of California, where this Lease is being signed
on behalf of Lessor and Lessee, and all performance on the part of Lessee,
including the payment of all rent and other sums due hereunder, shall be deemed
to have been required to be performed by Lessee in said County. This Lease shall
be governed by and construed, interpreted and enforced in accordance with the
laws of the State of California, without giving effect to principles of
conflicts of law or choice of law. Jurisdiction and venue in any action or
proceeding in connection with this Lease shall be in the proper state or Federal
court located in the City and County of San Francisco or the County of San
Mateo, State of California.
21. MISCELLANEOUS. The singular includes the plural and vice versa, as
applicable. The term "Lessee" as used herein, if this Lease is signed by more
than one Lessee, means each Lessee, and their obligations and representations
hereunder shall be joint and several. The headings or captions at the beginning
of sections hereof are solely for convenience of reference and are not part of
this Lease.
22. TIME. Time is of the essence of this Lease.
23. ENTIRE AGREEMENT; AMENDMENT; WAIVER. This Lease constitutes the entire
agreement between Lessor and Lessee and supersedes all prior or contemporaneous
agreements, promises, representations, correspondence and negotiations,
regarding the subject matter hereof. This Lease may not be amended, altered or
B-8
changed except by written agreement signed by Lessor and Lessee and supported by
new consideration. No provision hereof for the benefit of Lessor and no default
of Lessee hereunder may be waived except in writing signed by Lessor. No failure
on the part of Lessor to exercise, and no delay in exercising, any right or
remedy hereunder shall operate as a waiver thereof. Waiver by Lessor of any
provision hereof or default hereunder in any instance shall not constitute a
waiver as to any other provision, default or instance.
24. SEVERABILITY. If any provision of this Lease is held invalid, such
invalidity shall not affect the other provisions, which shall be given effect
without, the invalid provision.
IN WITNESS WHEREOF, the parties hereto have executed this Furniture Lease
as of the date first above written.
LESSOR: LESSEE:
ORACLE CORPORATION NETWORK COMPUTER, INC.
By: By:
--------------------------- --------------------------------
Name: Name:
------------------------- ------------------------------
Title: Title:
------------------------ -----------------------------
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FIRST AMENDMENT TO SUBLEASE
THIS FIRST AMENDMENT TO SUBLEASE ("First Amendment") is entered into as of
October 5, 1998 by and between ORACLE CORPORATION ("Sublandlord") and NETWORK
COMPUTER, INC. ("Subtenant") with reference to the following facts;
A. Pursuant to the provisions of that certain Sublease Agreement dated as
of September 17, 1997 (the "Sublease"), Sublandlord subleased to Subtenant
certain space in the Building known as First Interstate Plaza located at 000
Xxxxx Xxxx Xxxxxx, Xxxx Xxxx Xxxx, Xxxx (the "Building").
B. Pursuant to the provisions of Sublease, the Term of the Sublease was
scheduled to expire as of December 24, 1998.
C. Sublandlord and Subtenant wish to amend the Sublese to adjust the
Expiration Date to February 28, 1999.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Sublandlord and Subtenant hereby agree as follows:
1. Incorporation of Recitals. Recitals A through C above arc hereby
incorporated herein.
2. Term. The Sublease is hereby amended to provide that the Term of
the Sublease shall expire on February 28, 1999 (the "Expiration Date"), unless
sooner terminated pursuant to any provision thereof. From and after the date
hereof, all references in the Sublease to the Expiration Date shall be deemed to
refer to the Expiration Date as fixed by this Section 2.
3. Status of Sublease. Except as amended hereby, the Sublease is
unchanged, and, as amended hereby, the Sublease is in full force and effect.
IN WITNESS WHEREOF, the parties hereto hereby execute this First Amendment
as of the day and year first above written.
SUBLANDLORD:
ORACLE CORPORATION,
a Delaware corporation
By: /s/ Xxxxx Xxxxx
----------------------------------
XXXXX XXXXX
Its: VP AND CORPORATE TREASURER
---------------------------------
SUBTENANT:
NETWORK COMPUTER, INC.,
a Delaware corporation
By: /s/ Xxxxx Xxxxx
----------------------------------
Its: CEO and President
---------------------------------
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