EXHIBIT 10.8
LEASE AGREEMENT
This Lease Agreement has been executed and delivered on this 2nd day of
January, 1997, by and between DataLink Systems Corporation, a Nevada
corporation, with a business address of 0000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxx
Xxxx, Xxxxxxxxxx, 00000 (the "Lessee"), and Xxxxxxx XxXxxx and Xxxxxx XxXxxx,
each residing at 00000 Xxxx Xxxxxx, Xxx Xxxxx, Xxxxxxxxxx, 00000 (collectively
the "Lessor").
NOW, THEREFORE, in consideration of the mutual agreements of the
parties, LESSOR AND LESSEE HEREBY AGREE AS FOLLOWS:
1. Lease. On the terms and subject to the conditions of this Lease,
Lessor hereby leases to Lessee, and Lessee hereby leases from Lessor, that
certain real property consisting of approximately Four Thousand (4,000) square
feet of office space located at 00000 Xxxx Xxxxxx, Xxx Xxxxx, Xxxxxxxxxx (the
"Property").
2. Term. The term of the this Lease (the "Term"), shall commence on
the date first set forth above and shall expire on the third anniversary of
the date of this Lease; provided, however, unless either party gives written
notice to the other no less than fifteen (15) days prior to the end of the
Term or any renewal thereof, of its intent not to renew this Lease, the Term
shall be automatically extended to the next succeeding anniversary.
3. Rent.
(a) As rent for the use and occupancy of the Property during the
Term, Lessee shall pay to Lessor, in advance on the first day of each month of
the Term, a monthly rent of Eight Thousand Three Hundred Thirty-Three Dollars
and Thirty-Three Cents ($8,333.33), without deduction, setoff, prior notice or
demand (the "Base Rent"). Rent for the first month of the Term shall be paid
on delivery of possession of the Property to Lessee. Rent for any period
during the Term which is for less than one month shall be a prorated portion
of the monthly installment. Rent shall be paid to Lessor in lawful money of
the United States, at the address for the Property or to such other persons or
at such other places as Lessor may designate to Lessee in writing.
(b) The Base Rent shall be increased annually, commencing on the
first anniversary of this Lease (the "Adjustment Date"). On each Adjustment
Date, Base Rent shall be increased by an amount equal to the greater of (i)
five percent (5%) or (ii) an inflation adjustment based on the Consumer Price
Index All Urban Consumers (San Francisco, Bay Area), multiplied the Base Rent
(the "CPI").
(c) If at any Adjustment Date the CPI no longer exists
substantially in the form that it currently exists, Lessor may substitute any
substantially equivalent official index published by the Bureau of Labor
Statistics or its successor. Lessor shall use any appropriate conversion
factors to accomplish such substitution.
(d) The Base Rent is intended as a "gross rent", and
accordingly, Lessor shall bear the costs of all property taxes, assessments
and utilities, except with respect to any telephone or ISDN lines, the cost of
which shall be born by Lessee.
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4. Permitted Use. During the Term, Lessee may use and occupy the
Property and the improvements thereon for commercial office space only.
5. Condition of Premises. Lessee accepts the Property AS IS, in its
condition as of the date of this lease. In addition, Lessee acknowledges that
it has thoroughly examined and inspected the Property, is aware of its
condition, has satisfied itself as to the structural integrity and condition
of the Property, and Lessor has made no warranty or representation with
respect to same.
6. Indemnification. Lessee hereby indemnifies and agrees to hold
Lessor and the Property harmless from and against any and all claims, demands,
liability or loss, including reasonable attorneys' fees arising from (a)
Lessee's use or occupation of the Property; (b) the conduct of Lessee's
business or any other activity done or permitted by Lessee to be done on or
about the Property; and (c) any breach or default in the performance of
Lessee's obligations under this Lease.
7. Lessor's Obligations. So long as Lessee complies with the terms
of this Lease, Lessor shall render to Lessee quiet possession of the Property.
8. Assignment and Subletting. Lessee shall not assign, transfer,
mortgage, sublet or otherwise transfer or encumber all or any part of Lessee's
interest in this Lease or in the Property without Lessor's prior written
consent. Any attempted assignment, transfer, mortgage, encumbrance, or
subletting without Lessor's consent shall be void and shall constitute a
material breach of this Lease.
9. Notices. Except as expressly provided herein, all notices,
requests or other communications required hereunder shall be in writing and
shall be given personal delivery, national overnight courier service, or by
U.S. mail, certified or registered, postage prepaid, return receipt requested,
addressed to the respective party at the applicable addresses as shall be
specified in writing by such party to other parties in accordance with the
terms and conditions of the Section. All notices, requests or communications
shall be deemed effective upon personal delivery, or five (5) days following
deposit in the United States mail, or two (2) business days following deposit
with any national overnight courier service.
10. Governing Law, Jurisdiction and Venue. This Agreement shall be
governed by and construed and enforced in accordance with the laws of the
State of California (regardless of that jurisdiction or any other
jurisdiction's choice of law principles). To the extent permitted by law, the
parties hereto agree that all actions or proceedings arising in connection
herewith, shall be arbitrated or litigated in the State of California, and
each party hereby waives any right it may have to assert the doctrine of Forum
Non Conveniens or to object to venue. The parties each hereby stipulate that
the state and federal courts located in the County of Santa Xxxxx, State of
California, shall have personal jurisdiction and venue over each party for the
purpose of litigating any such dispute, controversy or proceeding arising out
of or related to this Agreement and beyond the scope of arbitration set forth
below.
12. Arbitration. Any dispute or controversy arising out of or
relating to this Agreement shall be settled by final and binding arbitration
in Los Gatos, California. Except as otherwise set forth herein, such
arbitration shall be conducted in accordance with the then-existing rules of
the AAA and such award shall be specifically enforceable, and judgment upon
the award rendered by the arbitrators may be entered in any court having
jurisdiction thereof; provided, however, that the law applicable to any such
controversy shall be the law of
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California, regardless of its or any jurisdiction's choice of law principles.
By entering into this provision, it is the parties intention to expedite, and
limit the costs involved in, resolution of any future dispute, and therefore
pre-hearing discovery shall be limited to production of key documents, as
determined by the arbitrator, and shall not extend to depositions of parties.
Any award shall be limited to a recovery of foreseeable, contract damages,
which are a direct consequence of a breach of this Agreement. In further
limitation hereof, no arbitrator shall be empowered to award any other
damages, including, but not limited to, consequential, compensatory or
punitive damages.
13. Attorney's Fees. In the event that any action or proceeding,
including arbitration, is commenced by either party hereto for the purpose of
enforcing any provision of this Agreement, the successful or prevailing party
shall recover reasonable attorneys' fees and other costs incurred in such
action or proceeding.
This Lease has been executed and delivered by Lessor and Lessee as of
the date first set forth above.
LESSOR:
/s/ Xxxxxxx XxXxxx
Xxxxxxx XxXxxx
/s/ Xxxxxx XxXxxx
Xxxxxx XxXxxx
LESSEE:
DATALINK SYSTEMS CORPORATION
/s/ Xxxxxxxx Xxxxxx
Xxxxxxxx Xxxxxx, Chairman of the Board
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