EXHIBIT 10.4
SUBLEASE
1. PARTIES.
This Sublease, dated April 12, 1997 is made between NetManage, Inc.
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("Sublessor") and Extreme Networks, Inc. ("Sublessee").
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2. MASTER LEASE.
Sublessor is the lessee under a written lease dated September 30, 1994,
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wherein Cupertino Industrial Associates ("Lessor") leased to Sublessor
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the real property located in the City of Cupertino, County of Santa
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Xxxxx, State of California, described as a +/- 28,368 sq. ft. building
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together with the parking lot adjacent to the building and the land on
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which it is located. This property is commonly known as 10460 Xxxxxxx
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Dr., Cupertino, CA ("Master Premises"). Said lease has been amended by
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the following amendments A "Renewal Agreement" dated October 2, 1996 ;
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said lease and amendments are herein collectively referred to as the
"Master Lease" and are attached hereto as Exhibit "A". This Sublease
shall be subject and subordinate to all of the terms and provisions of
the Master Lease, except for payment of rents (which obligations shall
remain those of Sublessor) and Other Provisions as stated in Section 10
of this Sublease. Sublessee acknowledges that Sublessee has received a
copy of the Master Lease prior to signing this Sublease.
3. PREMISES.
Sublessor hereby subleases to Sublessee on the terms and conditions set
forth in this Sublease the following portion of the Master Premises
("Premises"): The entire premises.
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4. WARRANTY BY SUBLESSOR.
Sublessor warrants and represents to Sublessee that the Master Lease has
not been amended or modified except as expressly set forth herein, that
Sublessor is not now, and as of the commencement of the Term hereof will
not be, in default or breach of any of the provisions of the Master Lease,
and that Sublessor has no knowledge of any claim by Lessor that Sublessor
is in default or breach of any of the provisions of the Master Lease.
5. TERM.
The Term of this Sublease shall commence on June 1, 1997 ("Commencement
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Date"), or when Lessor consents to this Sublease (if such consent is
required under the Master Lease), whichever shall last occur, and end on
April, 1999 ("Termination Date"), unless otherwise sooner terminated in
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accordance with the provisions of this Sublease. In the event the Term
commences on a date other than the Commencement Date, Sublessor and
Sublessee shall execute a memorandum setting forth the actual date of
commencement of the Term. Possession of the Premises ("Possession") shall
be delivered to Sublessee on the commencement of the Term. If for any
reason Sublessor does not deliver Possession to Sublessee on the
commencement of the Term, Sublessor shall not be subject to any liability
for such failure, the Termination Date shall not be extended by the delay,
and the validity of this Sublease shall not be impaired, but rent shall
xxxxx until delivery of Possession. Notwithstanding the foregoing, if
Sublessor has not delivered Possession to Sublessee within five (5) days
after the Commencement Date, then at any time thereafter and before
delivery of Possession, Sublessee may give written notice to Sublessor of
Sublessee's intention to cancel this Sublease. Said notice shall set forth
an effective date for such cancellation which shall be at least ten (10)
days after delivery of said notice to Sublessor. If Sublessor delivers
Possession to Sublessee on or before such effective date, this Sublease
shall remain in full force and effect. If Sublessor fails to deliver
Possession to Sublessee on or before such effective date, this Sublease
shall be canceled, in which case all consideration previously paid by
Sublessee to Sublessor on account of this Sublease shall be returned to
Sublessee, this Sublease shall thereafter be of no further force or
effect, and Sublessor shall have no further liability to Sublessee on
account of such delay or cancellation. If Sublessor permits Sublessee to
take Possession prior to the commencement of the Term, such early
Possession shall not advance the Termination Date and shall be subject to
the provisions of this Sublease, including without limitation the payment
of rent.
6. RENT.
6.1 Minimum Rent. Sublessee shall pay to Sublessor as minimum rent,
without deduction, setoff, notice, or demand, at 00000 Xxxxx Xx Xxxx
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Xxxx., Xxxxxxxxx, XX 00000, or at such other place as Sublessor shall
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designate from time to time by notice to Sublessee, the sum of Fifty-one
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thousand
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sixty-two and no/100's Dollars ($51,062.00) per month, in advance on the
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first day of each month of the Term. Sublessee shall pay to Sublessor upon
execution of this Sublease the sum of Fifty-one thousand sixty-two and
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no/100's Dollars ($51,062.00) as rent for June 1997. If the Term begins or
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ends on a day other than the first or last day of a month, the rent for
the partial months shall be prorated on a per diem basis. Additional
provisions:
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6.2 Operating Costs. If the Master Lease requires Sublessor to pay to Lessor
all or a portion of the expenses of operating the building and/or project
of which the Premises are a part ("Operating Costs"), including but not
limited to taxes, utilities, or insurance, then Sublessee shall pay to
Sublessor as additional rent one hundred percent (100%) of the amounts
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payable by Sublessor for Operating Costs incurred during the Term.
Sublessee shall pay all such additional cost within ten (10) days of
invoice from Sublessor or as and when such Operating Costs are due. If the
Master Lease provides for the payment by Sublessor of Operating Costs on
the basis of an estimate thereof, then as and when adjustments between
estimated and actual Operating Costs are made under the Master Lease, the
obligations of Sublessor and Sublessee hereunder shall be adjusted in a
like manner; and if any such adjustment shall occur after the expiration
or earlier termination of the Term, then the obligations of Sublessor and
Sublessee under this Subsection 6.2 shall survive such expiration or
termination. Sublessor shall, upon request by Sublessee, furnish Sublessee
with copies of all statements submitted by Lessor of actual or estimated
Operating Costs during the Term.
7. SECURITY DEPOSIT.
Sublessee shall deposit with Sublessor upon execution of this Sublease in
addition to Minimum Rents as Specified under Section 6.1, the sum of
Fifty-one thousand sixty-two and no/100's (Dollars ($51,062.00) as
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security for Sublessee's faithful performance of Sublessee's obligations
hereunder ("Security Deposit"). If Sublessee fails to pay rent or other
charges when due under this Sublease, or fails to perform any of its other
obligations hereunder, Sublessor may use or apply all or any portion of
the Security Deposit for the payment of any rent or other amount then due
hereunder and unpaid, for the payment of any other sum for which Sublessor
may become obligated by reason of Sublessee's default or breach, or for
any loss or damage sustained by Sublessor as a result of Sublessee's
default or breach. If Sublessor so uses any portion of the Security
Deposit, Sublessee shall, within ten (10) days after written demand by
Sublessor, restore the Security Deposit to the full amount originally
deposited, and Sublessee's failure to do so shall constitute a default
under this Sublease. Sublessor shall not be required to keep the Security
Deposit separate from its general accounts, and shall have no obligation
or liability for payment of interest on the Security Deposit. In the event
Sublessor is granted approval for assignment and thereafter assigns its
interest in this Sublease, Sublessor shall deliver to its assignee so much
of the Security Deposit as is then held by Sublessor. Within ten (10) days
after the Term has expired, or Sublessee has vacated the Premises, or any
final adjustment pursuant to Subsection 6.2 hereof has been made,
whichever shall last occur, and provided Sublessee is not then in default
of any of its obligations hereunder, the Security Deposit, or so much
thereof as had not theretofore been applied by Sublessor, shall be
returned to Sublessee or to the last assignee, if any, of Sublessee's
interest hereunder.
8. USE OF PREMISES.
The Premises shall be used and occupied only for the sales, marketing, and
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development of high technology hardware and software and other uses
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allowed in the Master Lease, and other legal uses, and for no other use or
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purpose.
9. ASSIGNMENT AND SUBLETTING.
Sublessee shall not assign this Sublease or further sublet all or any part
of the Premises without the prior written consent of Sublessor (and the
consent of Lessor, if such is required under the terms of the Master
Lease).
10. OTHER PROVISIONS OF SUBLEASE.
All applicable terms and conditions of the Master Lease are incorporated
into and made a part of this Sublease as if Sublessor were the lessor
thereunder, Sublessee the lessee thereunder, and the Premises the Master
Premises, except for the following: See attached Addendum Numbers 17-24.
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Sublessee assumes and agrees to perform the lessee's obligations under the
Master Lease during the Term to the extent that such obligations are
applicable to the Premises, except that the obligation to pay rent to
Lessor under the Master Lease shall be considered performed by Sublessee
to the extent and in the amount rent is paid to Sublessor in accordance
with Section 6 of this Sublease. Sublessee shall not commit or suffer any
act or omission that will violate any of the provisions of the Master
Lease. Sublessor shall exercise due diligence in attempting to cause
Lessor to perform its obligations under the Master Lease for the benefit
of Sublessee. If the Master Lease terminates, this Sublease shall
terminate and the parties shall be relieved of any further liability or
obligation under this Sublease, provided however, that if the Master Lease
terminates as a result of a default or breach by Sublessor or Sublessee
under this Sublease and/or the Master Lease, then the defaulting party
shall be liable to the nondefaulting party for the damage suffered as a
result of such termination. Notwithstanding the foregoing, if the Master
Lease gives Sublessor any right to terminate the Master Lease in the event
of the partial or total damage, destruction, or condemnation of the Master
Premises or the building or project of which the Master Premises are a
part, the exercise of such right by Sublessor shall not constitute a
default or breach hereunder.
11. ATTORNEYS' FEES.
If Sublessor, Sublessee, or Broker shall commence an action against the
other arising out of or in connection with this Sublease, the prevailing
party shall be entitled to recover its costs of suit and reasonable
attorney's fees.
12. AGENCY DISCLOSURE:
Sublessor and Sublessee each warrant that they have dealt with no o`ther
real estate broker in connection with this transaction except: RESOURCE
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ONE who represents The Sublessee and Equis of California represents The
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Sublessor. In the event that RESOURCE ONE represents both Sublessor and
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Sublessee, Sublessor and Sublessee hereby confirm that they were timely
advised of the dual representation and that they consent to the same, and
that they do not expect said broker to disclose to either of them the
confidential information of the other party.
13. COMMISSION.
Upon execution of this Sublease, and consent thereto by Lessor (if such
consent is required under the terms of the Master Lease), Sublessor shall
pay Broker a real estate brokerage commission in the amount of Seventy
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thousand four hundred sixty-six and no/100's Dollars ($70,466.00), for
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services rendered in effecting this Sublease. Broker is hereby made a
third party beneficiary of this Sublease for the purpose of enforcing its
right to said commission. One half commission due upon execution. One half
commission due upon occupancy.
14. NOTICES.
All notices and demands which may or are to be required or permitted to be
given by either party on the other hereunder shall be in writing. All
notices and demands by the Sublessor to Sublessee shall be sent by United
States Mail, postage prepaid, addressed to the Sublessee at the Premises,
and to the address hereinbelow, or to such other place as Sublessee may
from time to time designate in a notice to the Sublessor. All notices and
demands by the Sublessee to Sublessor shall be sent by United States Mail,
postage prepaid, addressed to the Sublessor at the address set forth
herein, and to such other person or place as the Sublessor may from time
to time designate in a notice to the Sublessee.
To Sublessor: Xx. Xxx Xxxxxxxxxx 00000 Xxxxx XxXxxx Xxxx. Xxxxxxxxx, XX
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95014
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To Sublessee: Mr. Xxxx Xxxxx 00000 Xxxxxxx Xx., Xxxxxxxxx, XX 00000
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15. CONSENT BY LESSOR.
THIS SUBLEASE SHALL BE OF NO FORCE OR EFFECT UNLESS CONSENTED TO BY LESSOR
WITHIN 10 DAYS AFTER EXECUTION HEREOF, IF SUCH CONSENT IS REQUIRED UNDER
THE TERMS OF THE MASTER LEASE.
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16. COMPLIANCE.
The parties hereto agree to comply with all applicable federal, state and
local laws, regulations, codes, ordinances and administrative orders
having jurisdiction over the parties, property or the subject matter of
this Agreement, including, but not limited to, the 1964 Civil Rights Act
and all amendments thereto, the Foreign Investment In Real Property Tax
Act, the Comprehensive Environmental Response Compensation and Liability
Act, and The Americans With Disabilities Act.
Sublessor: NetManage, Inc. Sublessee: Extreme Networks
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By /s/ Xxx Xxxxxxxxxx By /s/ Xxxxxxx Xxxxx
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Title: Senior VP HR and Admin. Title: CFO
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By By
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Title: Title:
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Date: Date: 4/18/97
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LESSOR'S CONSENT TO SUBLEASE
The undersigned ("Lessor"), lessor under the Master Lease, hereby consents
to the foregoing Sublease without waiver of any restriction in the Master
Lease concerning further assignment or subletting. Lessor certifies that,
as of the date of Lessor's execution hereof, Sublessor is not in default
or breach of any of the provisions of the Master Lease, and that the
Master Lease has not been amended or modified except as expressly set
forth in the foregoing Sublease.
Lessor: Cupertino Industrial Associates
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By:
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Title:
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By:
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Title:
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Date:
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CONSULT YOUR ADVISORS This document has been prepared for approval by your
attorney. No representation or recommendation is made by Broker as to the legal
sufficiency or tax consequences of this document or the transaction to which it
relates. These are questions for your attorney.
In any real estate transaction, it is recommended that you consult with a
professional, such as a civil engineer, industrial hygienist or other person,
with experience in evaluating the condition of the property, including the
possible presence of asbestos, hazardous materials and underground storage
tanks.
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THIS ADDENDUM PERTAINS TO THE SUBLEASE AGREEMENT DATED APRIL 12, 1997 BY
AND BETWEEN NETMANAGE, INC., AS SUBLESSOR, AND EXTREME NETWORKS, INC., AS
SUBLESSEE. THE SUBLEASE PREMISES ARE COMMONLY KNOWN AS 00000 XXXXXXX
XXXXX, XXXXXXXXX, XX.
17. TENANT IMPROVEMENTS: NetManage will remove all existing furniture systems,
work stations and all other non-permanent fixtures, then vacuum carpets and
sweep floors prior to the Sublease commencement date. The existing built-in
filing cabinets and the large conference room table shall remain in the sublease
premises for Extreme Network's use. The filing cabinets stay with the building
and the conference table, which belongs to NetManage, shall be returned to
NetManage at the end of the Sublease term.
18. FIRST OPPORTUNITY TO NEGOTIATE: Extreme Networks shall be given the first
opportunity to negotiate on any additional space in the neighboring +/- 38,000
square foot building leased by NetManage should NetManage elect to vacate all or
a portion of that facility prior to April 30, 1999. Upon receipt of written
notification, Extreme Networks shall have 72 hours to express an interest in the
additional sublease space, and both parties (NetManage and Extreme Networks)
will then negotiate in good faith. Should Extreme Networks not respond within 72
hours, or in the event that Extreme Networks causes an unreasonable delay in the
execution of a written agreement, NetManage will be free to put the additional
space on the open market.
19. SUBLEASING: Extreme Networks shall have the right to sublease any portion
of the Premises during the term of the sublease provided Extreme Networks is
given written approval of Sublessor (NetManage) and the building Landlord.
Approval for subleasing shall not be unreasonably withheld. Notwithstanding the
above, all parties to this Sublease agree that the Sublessee is hereby approved
to sublet up to 15,000 square feet subject to plan approval, approved of the
prospective incoming Subtenant and provided that the prospective incoming
subtenant's use is in accordance with Section 9 of the Master Lease. Extreme
Networks and the Sublessor shall share 50/50 in all triple net (NNN) sublease
profits that are above Extreme Network's $1.80 per Square foot rate after any
expenses associated with the sublease are paid (i.e. commissions, legal fees,
construction fees, etc.). Should Extreme Networks elect to sublease based upon a
higher "Gross" or "Full Service" rent, any additional costs such as property
taxes, building insurance, maintenance, utilities, janitorial, etc. that are
borne by Extreme Networks shall be deducted from triple net (NNN) profits. If
Extreme Networks does elect to sublease, then Extreme themselves default during
their subtenant's term, NetManage shall have the option to continue that
subtenancy or immediately cancel the subtenant's contract.
20. ALTERATIONS: Extreme Networks is responsible for returning the sublease
Premises back to NetManage in its pre-sublease condition except for normal wear
and tear. Prior to any alterations being made to the Premises, Extreme Networks
(and any Subtenant of Extreme Networks) must receive written approval from the
Landlord and the Sublessor (NetManage), and said [words intentionally
omitted]...
21. SUBLEASE CONTINGENCY: Upon full execution of the Sublease document, the
Sublease shall be legally binding upon all three (3) parties (Landlord,
Sublessor, and Sublessee). The only remaining contingency to the Sublease
contract shall be the Sublessee's ability to finalize its current round of
financing prior to June 1, 1997. The current round of financing shall be no less
than seven million and no/100's dollars ($7,000,000.00). If the Sublessee is
unable to finalize its round of financing prior to June 1, 1997, the Sublease
shall become null and void, and the Sublessor shall return the Sublessee's first
month's rental payment and the Sublessor shall be entitled to keep the
Sublessee's Security Deposit. Under these circumstances, neither Sublessor nor
Sublessee shall have rights to any other monies for damages due to the Sublease
being voided.
22. BROKERAGE COMMISSION: The commission as outlined in paragraph 13 of the
preprinted Sublease agreement, shall be paid as follows:
a. One-half upon full Sublease execution and Sublessee's receipt of
financing (as outlined in paragraph 21).
b. One-half upon Sublessee's occupancy of the Premises.
c. All commissions shall be shared equally between Equis of California and
Resource One.
23. NOTIFICATION: In addition to paragraph 14 of the preprinted Sublease
agreement, both Sublessor and Sublessee agree that proper notice shall be deemed
completed only after the sending party has received written confirmation of
receipt from the receiving party.
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24. INSURANCE: With respect to Sublessee's insurance obligations under
Section 17 of the Master Lease, Sublessee's policies of liability insurance
shall name Master Lessor and its property manager, as well as Sublessor, as
additional insured.
25. EARLY TERMINATION OF MASTER LEASE: If, without the fault of Sublessor
or Sublessee, the Master Lease should terminate prior to the expiration of the
Sublease, neither party shall have any liability to the other party.
26. ALL TERMS AND CONDITIONS IN THIS ADDENDUM SHALL SUPERSEDE ANY
CONFLICTING TERMS AND CONDITIONS OUTLINED IN THE PREPRINTED SUBLEASE AGREEMENT.
AGREED AND ACCEPTED:
/s/ Xxxxxxx Xxxxx 4/18/97
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Extreme Networks, Sublessee Date
/s/ Xxx Xxxxxxxxxx 4/19/97
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NetManage, Inc., Sublessor Date
Landlord hereby consents to the above sublease, without waiving any of its
rights against Sublessor.
/s/ Xxxxx X. Xxxxxxxxxx, President 4/22/97
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Cupertino Industrial Assoc., Landlord Date
By: THE CORTANA CORPORATION
Managing General Partner
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INDUSTRIAL BUILDING LEASE
PARTIES
1. THIS LEASE, dated for reference purposes only, September 30, 1994, is made
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by and between Cupertino Industrial Associates, a California general partnership
(herein "Landlord") and NetManage, Inc. (herein "Tenant").
PREMISES
2. Landlord leases to Tenant and Tenant hires from Landlord for the term, at
the rental and upon the conditions in this Industrial Building Lease (herein
"Lease") the real property commonly known as 00000 Xxxxxxx Xxxxx, Xxxxxxxxx,
Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxx consisting of a building containing approximately
Twenty Eight Thousand Three Hundred Sixty Eight (28,368) square feet together
with the parking lot adjacent to the building, and the land on which it is
located (all of which are herein referred to as the "Premises"). See Exhibit A.
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It is further understood and agreed that the area set forth in this Paragraph 2
is approximate only and that neither party shall have a claim against the other
for any variance between the actual area and that set forth above.
TERM
3. The term of the Lease shall be a period of thirty (30) months, commencing on
November 1, 1994, and expiring (unless sooner terminated) at midnight on the
30th day of April 1997, herein called the "lease term" or "term."
Notwithstanding the above, Landlord shall deliver possession of the
Premises to Tenant on October 1, 1994 for the purposes of installing Tenant's
tenant improvements, trade fixtures, and equipment provided Tenant has provided
Landlord with a copy of Tenant's insurance or a certificate of insurance as
required by Paragraph 17(a) and either provides its own course of construction
insurance or agrees to reimburse Landlord for the pro rata portion of the
premium for Landlord's insurance described in Paragraph 17(b). Such early
occupancy shall not advance the commencement date of the term of this Lease nor
extend the term in any way nor shall Tenant be obligated to pay any rent for the
period of such early occupancy.
RENEWAL
4. (a) In the event Tenant shall not then be in default hereunder and shall
have made all previous rental payments in a timely manner (no more than one
payment in each calendar year being delinquent, as defined in Paragraph 7
hereof), Tenant shall have the right, not earlier than nine (9) months prior to
the date of the expiration of the term of this Lease and not later than six (6)
months prior to the date of the expiration of the term of this Lease, to renew
the term of this Lease for a further term of two (2) years from the date of
expiration of the term of this Lease.
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(b) Such election shall be made by Tenant by serving upon Landlord a notice
in writing to the effect that Tenant elects to renew and extend the term of this
Lease for such extended term.
(c) In the event Tenant shall elect to renew this Lease and shall serve
notice of such election, upon the expiration of the term of this Lease, it shall
be automatically extended for an additional term of two (2) years from the date
of expiration of the original term of this Lease.
(d) Except for the redetermination of the base rental in accordance with
this Paragraph 4, all other terms and conditions of the original lease agreement
shall apply to the extended term.
(e) (i) During the extended term of this Lease, if any, Tenant shall pay
to Landlord as Minimum Base Rent for the Premises monthly rent in an amount
equal to 95 percent of the then current fair market value of the Premises. Such
Minimum Base Rent shall be increased at normal and customary intervals during
the extended term.
(ii) Landlord and Tenant shall have thirty (30) days after the Renewal
Date to agree to such monthly fair market rental value of the Premises and the
adjustments thereto. If Landlord and Tenant agree on such amounts during such
thirty (30) day period, then they shall immediately execute an amendment to this
Lease setting forth the Minimum Base Rent for the extended term of this Lease.
If Landlord and Tenant are unable to agree on such amounts within such thirty
(30) day period, then they shall each, within thirty (30) days of the expiration
of such period, appoint a real estate broker or appraiser knowledgeable of the
monthly rentals charged for similar commercial space in the Cupertino area and
such brokers and/or appraisers shall then endeavor to agree on the monthly fair
market rental value of the Premises and on the adjustments thereto. If the two
brokers and/or appraisers agree on the monthly fair market rental value of the
Premises and on the adjustments thereto, their decision shall be binding on the
parties. If either party hereto does not appoint a broker or appraiser within
such second thirty (30) day period, then the other party shall give written
notice to the party that failed to appoint a broker or appraiser and said party
shall have an additional fifteen (15) days from the date of receipt of said
notice to appoint its broker or appraiser. If no broker or appraiser is
appointed within said fifteen (15) period, the single broker or appraiser
appointed shall be the sole broker or appraiser and shall establish such amounts
alone.
(iii) If the brokers and/or appraisers so appointed are unable to
agree on the monthly fair market rental value of the Premises and on the
adjustments thereto within thirty (30) days after the second broker or appraiser
has been appointed, then the two brokers and/or appraiser shall attempt to
select a third person who shall be an appraiser meeting the qualifications set
forth above within ten (10) days after the last day the two brokers and/or
appraisers are given to establish such amounts. If the two brokers and/or
appraisers are unable to agree on such appraiser, either party hereto, after
giving ten (10) days' notice to the other party, can apply to the then President
of the Real Estate Board of Santa Xxxxx County, or to the presiding judge of the
Superior Court of Santa Xxxxx County, for the selection of the third person who,
as set forth above, must be an appraiser. The brokers and/or appraisers shall
then establish
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the monthly fair market rental value of the Premises and adjustments thereto, by
majority vote. Landlord and Tenant shall each bear the cost of their own broker
or appraiser and 1/2 of the cost of appointing the third person and of such
appraiser's fee.
HOLDOVER
5. (a) Holding over after the expiration of the term or extended term, of this
Lease, or any oral extension thereof, with the consent of Landlord, which
consent shall not unreasonably be withheld, shall be a tenancy from month to
month, and the rentals and additional rentals upon the covenants, conditions,
limitations, and agreements are subject to the exceptions and reservations
contained in this Lease. The rental rate is to be the same rate last charged
hereunder.
(b) If Tenant remains in possession without Landlord's consent after
termination of the Lease, by lapse of time or otherwise, Tenant shall pay
Landlord for each day of such retention one-twentieth (1/20th) of the amount of
the monthly rental for the last month prior to such termination and Tenant shall
also pay all costs, expenses and damages sustained by Landlord by reason of such
retention, including, without limitation, claims made by a succeeding tenant
resulting from Tenant's failure to surrender the Premises.
RENT
6. (a) Tenant agrees to pay Landlord as Minimum Base Rental for the premises
for the first nine (9) months of the term, the sum of Fifteen Thousand Seven
Hundred Sixty Nine and 77/100 Dollars ($15,769.77) per month. All rents shall be
payable in advance and due on the first day of each and every month of the term
of this Lease. During the remaining twenty one (21) months of the original term
of this Lease, Tenant agrees to pay to Landlord as minimum Base Rental for the
Premises the sum of Thirty One Thousand Five Hundred Thirty Nine and 54/100
Dollars ($31,539.54) per month.
Rent for any period which is for less than one (1) month shall be a
prorated portion of the monthly installment stated herein, based upon a thirty
(30) day month. Said rental shall be paid, without prior notice or demand and
without deduction or offset, except as otherwise provided herein, in lawful
money of the United States of America at 000 Xx Xxxxxx Xxxx, Xxxxx 000, Xxxxx
Xxxx, Xxxxxxxxxx 00000 or at such other place as Landlord may from time to time
designate in writing.
(b) As additional rent, Tenant shall pay to Landlord or directly to the tax
collector, at the direction of Landlord, all real property taxes and assessments
(general and special), in lieu real property taxes, rent taxes, gross receipt
taxes (whether assessed against Landlord or assessed against Tenant and
collected by Landlord, or both). Such taxes shall be pro-rated if the
commencement and termination dates of this Lease do not correspond to the tax
year. Notwithstanding the above, Tenant shall not be responsible for any
increase in any of the above caused by a reassessment due to a change in
ownership (as said term in defined in California Revenue and Taxation Code
Section 60 et seq. as the same may be amended) during the initial term of this
Lease.
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As additional rent, Tenant shall pay to Landlord the cost of the insurance
policy or policies referred to in Paragraph 17(b) attributable to the Premises,
pro-rated if the commencement and termination dates of this Lease do not
correspond to the periods covered by such policy or policies.
The above additional rents shall be due and payable fifteen (15) business
days after Landlord has furnished Tenant with a photocopy of the tax xxxx or
premium notice, as the case may be, but in no event earlier than fifteen (15)
calendar days prior to delinquency. Landlord will furnish Tenant such
photocopies promptly upon receipt of the tax xxxx or premium notice, as the case
may be. Any sums not paid on or before such due date shall bear interest as the
highest rate allowed by law in addition to any penalties that may be imposed by
the taxing authorities for delinquent payments. Additionally, if Tenant fails to
pay such additional rent on or before the due dates described above, Landlord
reserves the right to require Tenant to pay the delinquent payment and future
payments of these additional rents by cashier's checks or other certified funds.
As further additional rent Tenant shall reimburse Landlord for the cost of
maintenance of the HVAC system and landscaping on a monthly basis. Other
maintenance provided for the Premises by Landlord, including, but not limited
to, the parking lot paving and striping (but excluding the resealing and
striping to be completed by Landlord pursuant to Paragraph 13 (a) below), shall
be billed to Tenant on a monthly basis as such expenses are incurred by Landlord
and Tenant shall pay such additional rent to Landlord with its Minimum Base
Rent. Should Tenant fail to pay for any such maintenance within thirty (30) days
of the date of the xxxx, Tenant shall post an additional deposit of Five
Thousand Dollars ($5,000.00) within fifteen (15) days after written demand from
Landlord. Thereafter, Landlord may apply such additional deposit to such
additional rent in the same manner as the security deposit mentioned below and
Tenant shall replenish such deposit on demand in the same manner set forth in
Paragraph 8(a) below.
LATE CHARGES
7. Tenant agrees that all Minimum Base Rent not received by Landlord within
five (5) calendar days of the due date shall be considered delinquent and agrees
to pay a late charge equal to ten percent (10%) of the delinquent payment within
five (5) business days after receipt of written notice of non receipt of
payment. Rent mailed and bearing a U. S. Postal Service postmark of the third
(3rd) of a month shall not be considered delinquent no matter when received.
Additionally, any delinquent payments not paid within thirty (30) days of the
original due date shall bear interest at the lower of the maximum rate then
allowed by law or two points over the reference rate (prime rate) charged by the
San Francisco Main Branch of the Bank of America.
SECURITY DEPOSIT
8. (a) Tenant shall deposit with Landlord the total sum of Thirty One Thousand
Five Hundred Thirty Nine and 54/100 Dollars ($31,539.54). Said sum shall be held
by Landlord as security for the faithful performance by Tenant of all of the
terms, covenants, and conditions of this Lease. If Tenant defaults with respect
to any provision of this Lease, including, but not
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limited to, the provisions relating to the payment of rent, Landlord may (but
shall not be required to) use, apply or retain all or any part of this security
deposit for the payment of any rent or any other sum in default, or for the
payment of any amount which Landlord may spend or become obligated to spend by
reason of Tenant's default, or to compensate Landlord for any other loss or
damage which Landlord may suffer by reason of Tenant's default. If any portion
of said deposit is so used or applied, Tenant shall, within five (5) days after
written demand therefor, deposit cash with Landlord in an amount sufficient to
restore the security deposit to its original amount and Tenant's failure to do
so shall be a material breach of this Lease. Landlord shall not be required to
keep this security deposit separate from its General funds, and Tenant shall not
be entitled to any interest on said deposit.
(b) If Landlord's interest in this Lease is terminated, Landlord shall
transfer said deposit to Landlord's successor in interest and Landlord's
successor agrees to be bound by the terms of this Lease.
USE OF PREMISES
9. (a) Tenant shall use the Premises for research and development, light
manufacturing, testing, marketing and general office uses and other legally
related uses and shall not use or permit the Premises to be used for any other
purpose without the prior written consent of Landlord.
(b) Tenant shall not knowingly do or permit anything to be done in or about
the Premises nor bring or keep anything therein which will:
(i) increase the existing rate of or affect any fire or other
insurance upon the building or any of its contents unless Tenant agrees to pay
such increased rate, or
(ii) cause cancellation of any insurance policy covering said
building or any part thereof or any of its contents.
Tenant shall not knowingly use or allow the Premises to be used for any
improper, immoral, unlawful or objectionable purpose, nor shall Tenant cause,
maintain or permit any nuisance in, on or about the Premises. Tenant shall not
knowingly commit or suffer to be committed any waste in or upon the Premises.
Tenant shall not place any loads upon the floors, walls, or roof which endanger
the structure or place any harmful liquids or other toxic waste in the drainage
system of the Premises or in any other place in on or about the Premises. 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 building, except as approved by
the City of Cupertino.
COMPLIANCE WITH LAW
10. Tenant shall not use the Premises or permit anything to be done in or
about the Premises which will in any way conflict with any law, statute,
ordinance or governmental rule or regulation now in force or which may hereafter
be enacted or promulgated. Tenant shall, at its
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sole cost and expense, promptly comply with all laws, statutes, ordinances, and
governmental rules, regulations or requirements, pertaining to the specific use
of the Premises by Tenant, including, but not limited to, those relating to the
protection of the environment and storage and disposal of toxic materials, now
in force or which may hereafter be in force except that Tenant shall not be
required to make structural changes related to or affected by Tenant's
improvements or acts. Landlord shall be responsible for all costs and expenses
necessary to comply with all laws, statutes, ordinances, and governmental rules,
regulations or requirements where the need for such compliance was not caused by
Tenant's use of the Premises or Tenant's acts in connection with the Premises.
Notwithstanding the above, Landlord shall not be responsible for any costs or
expenses necessary to comply with the Americans with Disabilities Act other than
as the same relates to the parking lot, landscaping areas, walkways, driveways,
sidewalks, and other areas of the Premises outside of the building. Tenant shall
also comply with the requirements of any board of fire insurance underwriters or
other similar bodies now or hereafter constituted relating to or affecting the
condition, use or occupancy of the Premises, excluding structural changes not
required or affected by Tenant's improvements or acts. The judgment of any court
of competent jurisdiction or the admission of Tenant in any action against
Tenant, whether Landlord be a party thereto or not, that Tenant has violated any
law, statute, ordinance or governmental rule, regulation or requirement, shall
be conclusive of that fact as between the Landlord and Tenant.
ALTERATIONS AND ADDITIONS
11. (a) Tenant shall not make or allow any alterations, additions or
improvements of or to the Premises without Landlord's prior written consent,
which consent shall not unreasonably be withheld. Landlord's consent shall not
be required for any non structural Tenant improvements costing less than Ten
Thousand Dollars ($10,000.00). Any such alterations, additions or improvements,
including, but not limited to, wall covering, paneling and built-in cabinet
work, but excepting movable furniture, and trade fixtures, shall become a part
of the realty, shall belong to Landlord and shall be surrendered with the
Premises at expiration or termination of the Lease. If Landlord consents to any
such alterations, additions or improvements by Tenant, they shall be made by
Tenant at Tenant's sole cost and expense, and any contractor or person selected
by Tenant to perform the work shall first be approved of, in writing, by
Landlord, which approval shall not be unreasonably withheld. Landlord further
reserves the right to require all plans for structural improvements and
alterations to be reasonably approved by its structural engineer. No such work
shall be allowed to commence until three (3) days have elapsed from the date of
Landlord's consent. Upon expiration, or sooner termination, of the term hereof,
Tenant shall, upon written demand by Landlord given at least one hundred twenty
(120) days prior to the end of the term, promptly remove any alterations,
additions or improvements made by Tenant and designated by Landlord to be
removed at the time Landlord gave its written consent to the installation of
such alterations, additions or improvements. If no such consent was required,
Landlord shall have the right to direct Tenant to remove same provided Landlord
gives written notice to Tenant within the above time period. Such removal and
repair of any damage to the Premises caused by such removal shall be at Tenant's
sole cost and expense.
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(b) Tenant shall not place or permit to be placed in, upon, or about the
Premises any signs not approved by the City of Cupertino or other governing
authority. Tenant shall not place, or permit to be placed, upon the Premises,
any signs, advertisements or notices without the written consent of Landlord
first had and obtained. Any sign so placed on the Premises shall be placed upon
the understanding and agreement that Tenant shall remove same at the termination
of the tenancy created herein and repair any damage or injury to the Premises
caused thereby, and if not so removed by Tenant then Landlord may have the same
so removed at Tenant's expense.
LIENS
12. Tenant shall keep the Premises and the property in which the Premises are
situated free from any liens arising out of any work performed, materials
furnished or obligations incurred by Tenant. In the event a mechanic's lien is
recorded against the Premises and is not removed within ten (10) business days
after Landlord gives written notice to Tenant to cause the removal of same,
Landlord may require Tenant to provide Landlord, at Tenant's sole cost and
expense, a lien and completion bond in an amount equal to one and one-half (1-
1/2) times the estimated cost of any improvements, additions, or alterations by
Tenant, to insure Landlord against liability for mechanic's and materialmen's
liens and to insure completion of the work if the estimated cost exceeds Twenty
Five Thousand Dollars ($25,000.00). Landlord shall also have the right to post
and maintain on the Premises such notices of nonresponsibility as may be
required by law to protect Landlord's rights herein.
REPAIRS AND MAINTENANCE
13. (a) Tenant accepts the Premises in an "AS-IS" condition with the following
exceptions: (1) Landlord warrants that all electrical, plumbing, and HVAC
systems servicing the Premises shall be in good operating condition at the time
possession is delivered to Tenant; (2) Landlord shall cause the parking lot to
be resealed and striped prior to the commencement of the term; (3) Landlord
shall cause any broken or stained ceiling tiles to be replaced prior to the
commencement of the term; and (4) Landlord shall warrant the roof, parking lot,
HVAC system and electrical system to be free from defects for the first six (6)
months of the term. Landlord's liability for the above shall be limited to the
repair or replacement of any defects and Landlord shall in no way be liable for
lost profits or any consequential damages of Tenant. Additionally, Landlord
shall not be responsible for the repair or replacement of any HVAC or electrical
components installed by Tenant or for any damage caused by any roof penetration
made by Tenant. Tenant shall not be responsible for any inherent defects in the
Premises or any damage or destruction to the Premises covered by insurance.
Tenant shall further not be responsible for any repairs or maintenance made
necessary due to the negligence, fault, or omission of Landlord or any of
Landlord's agents or employees. Except as set forth above, Tenant shall at
Tenant's sole cost and expense, keep the Premises and every part thereof
including, but not limited to, roof covering (unless it is not feasible to
repair the existing roof covering and a new roof covering is required and Tenant
has not penetrated the roof causing the damage requiring replacement) the
glazing, plumbing, and electrical systems, and the parking areas in good
condition and repair, unless caused by a casualty required to be insured
pursuant to Paragraph 17 hereof or by any
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inherent defects. Tenant further agrees to maintain the Premises and make minor
repairs thereto in conformance with any reasonable requirements of any
institutional lender of Landlord. Should Tenant at any time during the term of
this Lease or any renewal or extension of the term fail to maintain the Premises
or make any repairs or replacements as required herein, Landlord may, at its
option, enter the Premises and perform such maintenance or make such repairs or
replacements for the account of Tenant after reasonable written notice to
Tenant. Any sums expended by Landlord in so doing, together with interest
thereon at the highest rate allowed by law from the date expended by Landlord
until the date repaid by Tenant, shall be due and payable by Tenant to Landlord
within fifteen (15) business days after demand of Landlord. Tenant shall upon
the expiration or sooner termination of this lease surrender the Premises to the
Landlord in good condition, damage from causes beyond the reasonable control of
the Tenant and normal wear and tear excepted. Unless specifically provided in an
addendum to this Lease, Landlord shall have no obligation to alter, remodel,
improve, repair, decorate or paint the Premises or any part thereof and the
parties hereto affirm that Landlord has made no representations to Tenant
respecting the condition of the Premises or the building in which the Premises
are located except as specifically herein set forth.
(b) As set forth in Paragraph 6(b), Landlord shall cause the landscaping and
HVAC system to be maintained and Tenant shall reimburse Landlord for the cost of
such maintenance as additional rent. Additionally, notwithstanding the above
provisions of Xxxxxxxxx 00(x), Xxxxxxxx shall maintain the structural integrity
of the building, including, without limitations the foundation, exterior walls,
and roof (except as provided in Paragraph 13(a)) in which the Premises are
located, unless such maintenance and repairs are caused in part or in whole by
the act, neglect, fault or omission of any duty by the Tenant, its agents,
servants, employees or invitees, in which case Tenant shall pay to Landlord the
reasonable cost of such maintenance and repairs. Landlord will replace the roof
covering if repairs to said covering are no longer economically feasible in the
judgment of roofing experts provided that Tenant has not penetrated the roof
causing the replacement or done any other acts causing such necessary
replacement. Tenant shall give Landlord written notice of any required repairs
or maintenance. Landlord shall not be liable for any failure to repair or to
perform any maintenance unless such failure shall persist for an unreasonable
time after written notice. Except as provided in Paragraph 22 hereof, there
shall be no abatement of rent and no liability of Landlord by reason of any
injury to or interference with Tenant's business arising from the making of any
repairs, alterations or improvements to any portion of the building or the
Premises or to fixtures, appurtenances and equipment therein. Tenant waives the
right to make repairs at Landlord's expense or terminate this Lease under any
law, statute or ordinance now or hereafter in effect for Landlord's failure to
maintain the Premises, provided Landlord commences or arranges for commencement
of the required repairs or maintenance within five (5) business days of receipt
of Tenant's written notice; provided, however, that Tenant may make emergency
repairs if necessary to prevent a disruption in Tenant's business or imminent
danger to its employees and property. In no event shall Tenant's costs of such
repairs or maintenance be deducted or offset from any amounts due from Tenant to
Landlord. Landlord shall reimburse Tenant for the reasonable costs of such
repairs or maintenance within fifteen (15) days after receipt of copies of
invoices for same and if any reimbursement is not made within said period,
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Landlord shall pay interest at the highest rate allowed by law from the date of
expenditure by Tenant to the date of repayment.
ASSIGNMENT AND SUBLETTING
14. Tenant may not assign this Lease or any interest therein and may sublet the
Premises or any part thereof or any right or privilege appurtenant thereto or
suffer any other person (the agents, employees, or servants of Tenant excepted)
to occupy or use the Premises or any portion thereof without the written consent
of Landlord, which consent shall not be unreasonably withheld, provided,
however, that the occupancy and use of any such assignee, subtenant or other
person shall be lawful and consistent with the Use Permit then in effect.
Notwithstanding the above, Landlord's consent shall not be required for an
assignment to: (1) a joint venture if Tenant has at least a fifty percent (50%)
interest in the capital, profits and losses of the joint venture; (2) a
corporation with which Tenant may merge or consolidate; (3) any parent or
subsidiary of Tenant or subsidiary of Tenant's parent; or (4) a purchaser of
substantially all of Tenant's assets if the assignee executes an agreement
reasonably required by Landlord assuming Tenant's obligations. In the event of
an assignment or subletting to which Landlord consents or an assignment for
which no consent is required, Tenant shall remain liable for the performance by
the assignee or subtenant of the terms of this Lease unless expressly released
therefrom by Landlord in writing.
HOLD HARMLESS
15. (a) Tenant shall indemnify Landlord against and hold Landlord and
Landlord's property harmless from any and all liability, claims, loss, damages,
or expense, including reasonable counsel fees and costs, arising by reason of
the death or injury of any person, including Tenant or any person who is an
employee, agent, or customer of Tenant, or by reason of damage to or destruction
of any property, including property owned by Tenant or any person who is an
employee, agent, or customer of Tenant, caused or allegedly caused by:
(i) Any cause whatsoever while such person or property is in or on
said Premises;
(ii) Some condition of said Premises for which Tenant is responsible
or for which Landlord is responsible and Landlord has not been given notice
thereof and reasonable time to correct;
(iii) Some act or omission on said Premises of Tenant or any person in
or on said Premises with the permission of Tenant; or
(iv) Tenant's use, storage, or disposal of hazardous wastes, toxic
substances, or related materials ("hazardous materials"). Hazardous materials
shall include, but not be limited to, substances defined as "hazardous
substances", "hazardous materials" or "toxic substances" in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended; the
Hazardous Materials Transportation Act; the Resource Conservation and Recovery
Act; and those substances defined as "hazardous wastes" in Section 25117 of the
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California Health and Safety Code; in the regulations adopted and publications
promulgated pursuant to such laws; and in the Hazardous Material Storage
Ordinance of the City of Cupertino, if any, as amended.
Tenant's indemnity with respect to hazardous materials shall include,
without limitation: (i) any damage, liability, fine, penalty, punitive damages,
cost or expenses arising from or out of any claim, action, suit or proceeding
for personal injury (including, without limitation, sickness, disease or death),
tangible property damage, nuisance, pollution, contamination, leak, spill,
release or other effect on the environment; and (ii) the cost of any required or
necessary investigation, repair clean-up, or treatment of the Premises and/or
the Property, and the preparation and implementation of any closure, disposal,
remedial or other required action in connection with the Premises and/or the
Property.
The indemnity of Tenant provided above shall survive the expiration or
earlier termination of this Lease but shall not apply to any damage: (1) covered
by insurance; (2) caused by a defect in the Premises; (3) caused by the willful
misconduct, negligence or omission of Landlord, its agents or employees; or (4)
caused by a breach of this Lease by Landlord.
(b) Tenant hereby assumes all risk of damage to property or injury to
persons in or upon the Premises, from any cause other than the following: (1)
the willful misconduct, negligence or omission of Landlord, its agents or
employees; 12) defects in the Premises, and (3) a breach of this Lease by
Landlord and Tenant hereby waives all claims in respect thereof against
Landlord. Landlord and its agents shall not be liable for any damage to property
entrusted to employees of the building, nor for loss or damage to any property
by theft or otherwise, nor from any injury to or damage to persons or property
resulting from any cause whatsoever, unless caused by or due to the following:
(1) the willful misconduct, negligence or omission of Landlord, its agents or
employees; (2) defects in the Premises; and (3) a breach of this Lease by
Landlord.
(c) If any action or proceeding is brought against Landlord by reason of any
claim for which Tenant has an obligation to indemnify Landlord as set forth
above, Tenant shall defend Landlord therein at Tenant's expense by counsel
reasonably satisfactory to Landlord.
(d) Landlord and its agents and employees shall not be liable for
interference with the light or other incorporeal hereditaments, or loss of
business by Tenant unless the same is caused by the gross negligence or willful
misconduct of Landlord, its agents, or employees. Tenant shall give prompt
notice to Landlord in case of fire or accidents in the Premises or in the
buildings or of alleged defects in the building, fixtures or equipment, provided
that Tenant has actual knowledge of such matters.
(e) To the best of Landlord's knowledge except as disclosed in that certain
Report of Environmental Audit for 00000 Xxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxx
dated April 12, 1990 prepared by Beta Associates, as of the date of this Lease
there are no hazardous materials or asbestos on, in, under or about the Premises
or the Property on which the Premises are located (the "Property"). Except with
respect to hazardous materials released on or under the Premises
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or property by Tenant or adjacent or nearby landowners, tenants, or occupants
Landlord shall indemnify, defend with counsel reasonably satisfactory to Tenant,
protect and hold Tenant harmless from and against any and all liabilities,
claims, losses, damages, or expense, including reasonable counsel fees and costs
arising out of, or based upon: (i) the presence of any hazardous materials or
asbestos on, under, in or about the Premises or the Property, unless such
hazardous materials are released onto the Premises or Property by Tenant or,
after the date of this Lease, by adjacent or nearby landowners, tenants, or
occupants; or (ii) the violation or alleged violation by Landlord of any laws,
regulations, orders, or permits relating to the use, generation, manufacture,
installation, release, discharge, storage or disposal of hazardous materials on,
under, in or about the Premises or the Property. This indemnity shall include,
without limitation: (i) any damage, liability, fine, penalty, punitive damages,
cost or expenses arising from or out of any claim, action, suit or proceeding
for personal injury (including, without limitation, sickness, disease or death),
tangible property damage, nuisance, pollution, contamination, leak, spill,
release or other effect on the environment; and (ii) the cost of any required or
necessary investigation, repair clean-up, or treatment of the Premises and/or
the Property, and the preparation and implementation of any closure, disposal,
remedial or other required action in connection with the Premises and/or the
Property, except for hazardous materials released on the Premises or the
Property by Tenant. Landlord shall also indemnify Tenant and hold Tenant
harmless from any and all liability, claims, loss, damages, or expense,
including reasonable counsel fees and costs, arising by reason of the gross
negligence of Landlord, its agents, or employees, a material breach of
Landlord's obligations under this Lease, and Landlord's breach of any
representation and/or warranty contained herein. Landlord's indemnity
obligations hereunder shall survive the expiration or earlier termination of
this Lease.
RELEASE FROM LIABILITY/WAIVER OF SUBROGATION
16. Landlord and Tenant hereby mutually waive their respective rights of
recovery against each other for any loss of the type required by this Lease to
be insured against. Landlord and Tenant hereby agree to obtain any special
endorsements (including waivers of subrogation) required by their insurance
carriers in order to effectuate the foregoing mutual release.
INSURANCE
17. (a) Tenant shall, at Tenant's expense, obtain and keep in force during
the term of this Lease a policy of comprehensive public liability insurance
insuring Landlord and Tenant against claims occurring in, on or about the
Premises and all areas appurtenant thereto. The limit of said insurance shall
not, however, limit the liability of Tenant hereunder. Tenant may carry said
insurance under a blanket policy providing however, said insurance by Tenant
shall name Landlord as an additional insured. If Tenant fails to procure and
maintain said insurance, Landlord may, but shall not be required to, procure and
maintain same, but at the expense of Tenant. Insurance required hereunder, shall
be in companies rated A+, Class X or better in "Best's Insurance Guide," Tenant
shall deliver to Landlord prior to occupancy of the Premises copies of policies
of liability insurance required herein or certificates evidencing the existence
and amount of such insurance with loss payable clauses satisfactory to Landlord.
No policy shall be cancelable or subject to reduction of coverage except after
fifteen (15) days prior written
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notice to Landlord. The minimum acceptable amount of comprehensive liability
insurance is $2,000,000 per accident, and property damage in an amount of not
less than $1,000,000.00 per occurrence. The above stated minimum levels of
coverage are subject to amendment by Landlord upon ninety (90) days written
notice should the economic conditions, in the discretion of Landlord, warrant
adjustment thereof. Tenant may, at its own expense also insure or self insure
its inventory, fixtures, equipment, furniture, and its own Tenant improvements.
Tenant acknowledges that Landlord shall have no responsibility for insuring such
items.
(b) Landlord shall carry and maintain during the entire term, including
extensions hereof, fire and all risk insurance insuring the Premises and the
initial tenant improvements for their full replacement cost. Said insurance
policy or policies shall cover at least the following risks: fire, smoke damage,
windstorm, hail, explosion, riot, riot attending a strike, civil commotion,
malicious mischief, vandalism, aircraft, earthquake (if available at
commercially reasonable rates) and sprinkler leakage. Additionally, such policy
or policies shall have a loss of rents (12 months) endorsement; provided
however, if any institutional lender of Landlord allows a lower amount, said
coverage may be reduced to such lower amount. Tenant shall pay to Landlord as
additional rent, the cost of such policy or policies pursuant to Paragraph 6(b).
Any loss payable under such insurance shall be payable to Landlord any Lender
holding and an encumbrance on the Premises. The proceeds from any such policy or
policies for damages to the Premises shall be used for the repair of the
Premises except as set forth in Paragraph 22.
SERVICES AND UTILITIES
18. (a) Tenant shall provide and pay for its own utilities, janitorial
services, trash removal and all other material and services it desires in
connection with its occupation and use of the Premises. Tenant acknowledges that
it understands that Landlord is not obligated to provide services, materials or
supplies, including but not limited to janitorial services or maintenance
services, except as otherwise provided herein, to Tenant.
(b) Tenant shall not connect with electric current except through approved
electrical outlets in the Premises or such additional electrical outlets as may
be installed by a licensed electrical contractor in conformance with the then
applicable building codes, any apparatus or device, for the purpose of using
electric current.
PERSONAL PROPERTY TAXES
19. Tenant shall pay before delinquency, all taxes levied or assessed and
which become payable during the term hereof upon all Tenant's leasehold
improvements, equipment, furniture, fixtures and personal property located in
the Premises, except that which has been paid for by Landlord and is the
standard of the building. If any of the Tenant's leasehold improvements,
equipment, furniture, fixtures and personal property are assessed and taxed with
the building, Tenant shall pay to Landlord its share of such taxes within ten
(10) days after delivery to Tenant by Landlord of a statement in writing setting
forth the amount of such taxes applicable to Tenant's property.
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RULES AND REGULATIONS
20. Intentionally omitted.
ENTRY BY LANDLORD
21. (a) Landlord reserves the right to enter the Premises at any time to
inspect the Premises, to submit the Premises to prospective purchasers or
tenants, to post notice of nonresponsibility, and to alter, improve, maintain or
repair the Premises that Landlord deems necessary or desirable, all without
abatement of rent. Except in the cases of emergencies and to post notices of
nonresponsibility, Landlord shall give telephone notice twenty four (24) hours
in advance, unless Tenant waives such notice, prior to entering the Premises.
Landlord may erect scaffolding and other necessary structures where reasonably
required by the character of the work to be performed, but shall not block the
entrance to the Premises nor interfere with Tenant's business or parking, except
as reasonably required for the particular activity by Landlord. Landlord shall
not be liable in any manner for any inconvenience, disturbance, loss of
business, nuisance, interference with quiet enjoyment, or other damage arising
out of Landlord's entry on the Premises as provided in this paragraph, except
damage, if any, resulting from the willful misconduct or negligence of Landlord
or its authorized representatives.
(b) In an emergency, Landlord shall have the right to use any means which
Landlord deems reasonably necessary to obtain entry to the Premises without
liability to Tenant, except for any failure to exercise due care for Tenant's
property. Any such entry to the Premises by Landlord shall not be construed or
deemed to be forcible or unlawful entry into or a detainer of the Premise or an
eviction of Tenant from the Premises or any portion thereof.
DESTRUCTION/RECONSTRUCTION
22. (a) If ten percent (10%) or less of the Premises is damaged by an
uninsured peril, Landlord shall promptly and diligently proceed to repair and
restore the same to substantially the same condition as existed prior to such
damage or destruction; provided, however, that should such damage be caused by
the act, negligence or fault or omission of any duty with respect to the same by
Tenant, its agents, servants, employees or invitees, Tenant, and not Landlord,
shall be so obligated to repair and restore. If the Premises are damaged by an
uninsured peril rendering more than ten percent (10%) of the Premises unusable
for the conduct of Tenant's business, Landlord may, upon written notice, given
to Tenant within thirty (30) days after the occurrence of such damage, elect to
terminate this Lease (the effective date of such termination shall be as
mutually agreed upon and if the parties fail to agree on such a date, the
effective termination date shall be the date that is thirty (30) days after the
date Landlord gives written notice of its election to terminate this Lease);
provided, however, Tenant may, within thirty (30) days after receipt of such
notice, elect to make any required repairs and/or restoration, in which event
this Lease shall remain in full force and effect, and Tenant shall thereafter
diligently proceed with such repairs and/or restoration.
(b) If the Premises are damaged or destroyed by fire or other insured peril,
Landlord shall promptly and diligently proceed to repair and restore the same to
substantially the
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same condition as existed prior to such damage or destruction; provided,
however, that Landlord shall not be obligated to repair and restore until either
the insurer acknowledges that the loss is covered by insurance and sufficient
proceeds of such insurance are available to Landlord to pay the costs (including
a reasonable allowance for contractor's profit and overhead not to exceed ten
percent (10%) of the repairs and/or restoration) or the Tenant agrees to pay
such costs to Landlord. If the existing laws do not permit the restoration,
either party can terminate this Lease immediately by giving notice to the other
party.
If the cost of restoration exceeds the amount of insurance proceeds, and
Tenant has not agreed to pay the cost of repairs and/or restoration to Landlord,
either party can elect to terminate this Lease by giving notice to the other
within fifteen (15) days after determining that the restoration cost will exceed
the insurance proceeds. In the case of destruction to the Premises, if Landlord
elects to terminate this Lease, Tenant, within fifteen (15) days after receiving
Landlord's notice to terminate, can agree to pay to Landlord the difference
between the amount of insurance proceeds and the cost of restoration in which
case Landlord shall restore the Premises. Landlord shall give Tenant
satisfactory evidence that all sums contributed by Tenant as provided in this
paragraph 22 have been expended by Landlord in paying the cost of restoration.
If Landlord elects to terminate this Lease and Tenant does not elect to
contribute toward the cost of restoration as provided herein, this Lease shall
terminate, and all of the proceeds of the insurance shall be paid to Landlord;
provided, however, that in the event such proceeds shall include any amounts
paid for damage to or destruction of property belonging to Tenant, Landlord
shall within ten (10) days of receipt, pay over such amounts to Tenant in the
following manner: out of the gross proceeds paid by insurance to Landlord,
Landlord shall retain an amount equivalent to the current replacement value of
the building and improvements owned by Landlord; after Landlord has been so paid
from the insurance proceeds, if there remains a balance of such insurance
proceeds which represent payment for damages to or destruction of improvements
added by Tenant after the date of Tenant's occupancy of the Premises, then, to
the extent of any remaining balance of the insurance proceeds and to the extent
of Tenant's direct costs of making such added improvements, Landlord shall be
obligated to pay over to Tenant such remaining insurance proceeds. During any
such repairs or restoration described in this paragraph 22, rent shall xxxxx in
proportion to the area of the Premises rendered unusable by such damage or
destruction; provided, however, that Landlord shall have no liability by reason
of injury to or interference with Tenant's business or property arising from the
making of any repairs, alterations, or improvements in or to any portion of the
Premises or in or to fixtures, appurtenances and equipment therein; and further
provided, that if the damage is caused by the fault or neglect of Tenant, its
agents or employees, there shall be no such abatement of rent unless covered by
the loss of rents provisions of the insurance policy Landlord is required to
carry and maintain pursuant to the provisions of Paragraph 17(b). If the
Premises are destroyed or substantially damaged within one year of the end of
this Lease term or extensions thereof, or if Landlord cannot restore the
Premises within One Hundred Twenty (120) days from the date of the damage or
destruction, Landlord or Tenant shall each have the option to cancel the Lease
effective as of the date of the damage or destruction or such later date as the
electing party sets forth in its written notice of cancellation, and all
insurance proceeds on the real property shall be
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paid to Landlord.
In the event Tenant shall have paid all or a portion of the costs of any
repairs or restorations for which Landlord subsequently receives insurance
proceeds, then to the extent that such insurance proceeds and Tenant's payments
exceed Landlord's cost of repair and/or restoration, Landlord shall reimburse
Tenant to the extent of Tenant's payments.
(c) Landlord shall not be required to repair any damage by fire or other
cause, or to make any repairs or replacements of any panels, decoration, office
fixtures, railings, floor coverings, partitions, or any other property installed
in the Premises by Tenant.
DEFAULT
23. Occurrence of any of the following events shall constitute default and
breach of this Lease by Tenant.
(a) The abandonment of the Premises by Tenant.
(b) The failure by Tenant to make any payment of rent or any other payment
required of Tenant hereunder, as and when due, if such failure continues for
three (3) business days after written notice thereof by Landlord to Tenant.
(c) The failure by Tenant to observe or perform any of the covenants,
conditions or provisions of this Lease other than described in Paragraph 23(b)
above where such failure continues for thirty (30) days after written notice
thereof by Landlord to Tenant; provided however, that if Tenant's default is
such that more than thirty (30) days are reasonably required for its cure, then
Tenant shall not be deemed to be in default if Tenant commences such cure within
said thirty (30) day period and thereafter diligently prosecutes such cure to
completion.
(d) The making by Tenant of any general assignment or general arrangement
for the benefit of creditors or the filing by or against Tenant of a petition to
have Tenant adjudged bankrupt, or a petition, or reorganization or arrangement
under any law relating to bankruptcy (unless in the case of a petition filed
against Tenant, the same is dismissed within sixty (60) days); or the
appointment of a trustee or a receiver to take possession of substantially all
of Tenant's assets located at the Premises or of Tenant's interest in this
Lease, where possession is not restored to Tenant within thirty (30) days; or
the attachment, execution or other judicial seizure of substantially all of
Tenant's assets located at the Premises or of Tenant's interest in this Lease
where such seizure is not discharged in thirty (30) days.
(e) The failure of Tenant or any employee or agent of Tenant to occupy the
Premises for ten (10) consecutive business days unless Tenant gives prior
written notice to Landlord, provides a security service for the Premises and
keeps all utility systems for the Premises functioning and in good operation.
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REMEDIES
24. Landlord shall have the following remedies if Tenant commits a default.
These remedies are not exclusive; they are cumulative and in addition to any
remedies now or later allowed by law.
(a) Landlord may continue this Lease in full force and effect, as long as
Landlord does not terminate Tenant's right to possession, and Landlord shall
have the right to collect rent when due. During the period Tenant is in default,
Landlord may enter the Premises and relet them, or any part of them, to third
parties for Tenant's account. Tenant shall be liable to Landlord for all costs
Landlord incurs in reletting the Premises, including, without limitation,
reasonable broker's commissions and expenses of remodeling the Premises required
by the reletting. Reletting way be for a period shorter or longer than the
remaining term of the Lease. Tenant shall pay to Landlord the rent due under
this Lease as and when due, less the rent Landlord receives from any reletting.
No act by Landlord allowed by this Paragraph shall terminate this Lease unless
Landlord notifies Tenant in writing that Landlord elects to terminate Tenant's
right to possession of the Premises. If Tenant obtains Landlord's consent,
Tenant shall have the right to assign or sublet its interest in this Lease, but
Tenant shall not be released from liability. Landlord's consent to a proposed
assignment or subletting shall not be unreasonably withheld.
(c) Landlord may terminate Tenant's right to possession of the Premises at
any time. No act by Landlord other than giving written notice to Tenant shall
terminate this Lease. Acts of maintenance, efforts to relet the Premises, or the
appointment of a receiver on Landlord's initiative to protect Landlord's
interest under this Lease shall not constitute a termination of Tenant's right
to possession. On termination, Landlord has the right to recover from Tenant:
(i) The worth, at the time of the award of the unpaid rent that had
been earned at the time of termination of this Lease;
(ii) The worth, at the time of the award of the amount by which the
unpaid rent that would have been earned after the date of termination of this
Lease until the time of award exceeds the amount of the loss of rent that Tenant
proves could have been reasonably avoided;
(iii) The worth, at the time of the award of the amount by which the
unpaid rent for the balance of the term after the time of award exceeds the
amount of the loss of rent that Tenant proves could have been reasonably
avoided; and
(iv) Any other amount necessary to compensate Landlord for all
detriment proximately caused by Tenant's failure to perform its obligations
under this Lease or which in the ordinary course of things would be likely to
result therefrom.
"The worth, at the time of the award," as used in (i) and (ii) of this
subparagraph, is to be computed by allowing interest at the maximum rate allowed
by law. "The worth, at the time of
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the award," as referred to in (iii) of this subparagraph, is to be computed by
discounting the amount at the discount rate of the Federal Reserve Bank of San
Francisco at the time of the award, plus one percent (1%).
EMINENT DOMAIN
25. If more than twenty-five percent (25%) of the Premises, twenty-five
percent (25%) of the parking spaces and Landlord does not provide suitable
replacement parking spaces within a reasonable distance from the building, or
ten percent (10%) of the building in which the Premises are located is taken or
appropriated by any public or quasi-public authority under powers of eminent
domain, either party hereto shall have the right at its option, to terminate
this Lease effective as of the date of taking. If less than twenty-five percent
(25%) of the Premises, twenty-five percent (25%) of the parking spaces, or ten
percent (10%) of the building in which the Premises are located is taken (or
neither party elects to terminate as above provided if more than twenty-five
percent (25%) of the Premises, twenty-five percent (25%) of the parking spaces,
or ten percent (10%) of the building in which the Premises are located in
taken), the Lease shall continue, and the rental thereafter to be paid shall
continue, but the rental thereafter to be paid shall be equitably reduced.
Whether or not the Lease is terminated by reason of any such taking or
appropriation, Landlord shall be entitled to the entire award and compensation
for the taking which is paid or made by the public or quasi-public agency, and
Tenant shall have no claim against said award; except for amounts paid directly
to Tenant for its moving expenses, interruption to its business or damage to
personal property or trade fixtures. A voluntary sale by Landlord to any public
body or agency having the power of eminent domain, either under threat of
condemnation or while the condemnation proceedings are pending shall be deemed
to be a taking under the power of eminent domain for the purposes of this
Paragraph.
ESTOPPEL CERTIFICATE
26. Either party shall at any time and from time to time upon not less than
ten (10) business days prior written notice from the other, execute,
acknowledge, and deliver to the other party a statement in writing (a)
certifying that this Lease is unmodified and in full force and effect or, if
modified, stating the nature of such modifications and certifying that this
Lease as so modified, is in full force and effect), and the date to which the
rental and other charges are paid in advance, if any and (b) acknowledging that
there are not, to the party's knowledge, any uncured defaults on the part of the
other party hereunder, or specifying such defaults if any are claimed. Any such
statement may be relied upon by any prospective purchaser, encumbrances,
assignee, or subtenant of all or any portion of the Premises or any purchaser of
Tenant's assets.
SUBORDINATION
27. Tenant agrees upon request of Landlord and the holder of any deed of
trust affecting the Premises to subordinate this Lease and its rights hereunder
to the lien of any mortgage, deed of trust or other encumbrance, together with
any conditions, renewals, extension, or replacements thereof, now or hereafter
placed, charged or enforced against the Landlord's interest in this Lease and
the leasehold estate thereby created, the Premises or the land, building or
improvements included therein, and deliver (but without cost to Tenant) at any
time and from time to time upon
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demand by Landlord such documents as may be required to effectuate such
subordination; provided, however, that Tenant shall not be required to
effectuate such subordination, nor shall Landlord be authorized to effect such
subordination on behalf of Tenant, unless the mortgagee or trustee named in such
mortgage, deed of trust or other encumbrance shall first agree in writing for
the benefit of Tenant, that so long as Tenant is not in default under any of the
provisions, covenants or conditions of Tenant this Lease on the part of Tenant
to be kept and performed, that neither this Lease nor any of the rights of
Tenant hereunder shall be terminated or modified or be subject to termination or
modification, nor shall Tenant's possession of the Premises be disturbed or
interfered with, by any trustee's sale or by an action or proceeding to
foreclose said mortgage, deed of trust or other encumbrance.
In the event any proceedings are brought for foreclosure, or in the event
of the exercise of the power of sale under any mortgage or deed of trust made by
the Landlord covering the Premises, the Tenant shall attorn to the purchaser
upon any such foreclosure or sale and recognize such purchaser as the Landlord
under this Lease.
In the event that the mortgagee or beneficiary of any such mortgage or deed
of trust elects to have this Lease prior to its mortgage or deed of trust, then
and in such event upon such mortgagee or beneficiary giving written notice to
Tenant to that effect, this Lease shall be deemed prior to such mortgage or deed
of trust whether this Lease is dated or recorded prior to or subsequent to the
date of recordation of such mortgage or deed of trust.
PARKING
28. Tenant shall have the exclusive right to use the parking facilities
provided by Landlord subject to any recorded easements. Landlord shall have no
obligation to police the use of the parking facilities, however.
AUTHORITY
29. Corporate Authority. If Tenant is a corporation, each individual
executing this Lease on behalf of said corporation represents and warrants that
he is duly authorized to execute and deliver this Lease on behalf of said
corporation, in accordance with a duly adopted resolution of the Board of
Directors of said corporation or in accordance with the bylaws of said
corporation, and that this Lease is binding upon said corporation in accordance
with its terms except as it may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, and similar laws or by other laws affecting
creditors' or lessors' rights generally and except as to the availability of
equitable relief.
Partnership Authority. If Tenant is a partnership, each individual
executing this Lease on behalf of aid partnership represents and warrants that
he is duly authorized to execute and deliver this Lease on behalf of said
partnership and that this Lease is binding upon said partnership and its
partners in accordance with its terms.
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GENERAL PROVISIONS
30. General Provisions.
(a) Clauses, plats and riders, if any, signed by the Landlord and the Tenant
and endorsed on or affixed to this Lease are a part hereof.
(b) The waiver by Landlord of any term, covenant or condition herein
contained shall not be deemed to be a waiver of such term, covenant or condition
on any subsequent breach of the same or any other terms, covenant or condition
herein contained. The subsequent acceptance of rent hereunder by Landlord shall
not be deemed to be a waiver of any preceding breach by Tenant of any term,
covenant or condition of this Lease, other than the failure of the Tenant to pay
the particular rental so accepted, regardless of Landlord's knowledge of such
preceding breach at the time of the acceptance of such rent.
(c) All notices and demands which may or are required to be given by either
party to the other hereunder shall be in writing. All notices and demands by the
Landlord to the Tenant shall be sufficient if delivered in person or sent by
United States Mail, certified or registered, postage prepaid, addressed to the
Tenant at the Premises or to such other place as Tenant may from time to time
designate in a written notice to the Landlord. All notices and demands by the
Tenant to the Landlord shall be sufficient if delivered in person, by receipted
courier service, or sent by United States Mail, postage prepaid, addressed to
the Landlord at 000 Xx Xxxxxx Xxxx, Xxxxx 000, Xxxxx Xxxx, Xxxxxxxxxx 00000 or
to such other person or place as the Landlord may from time to time designate in
a notice to the Tenant. Any such notice is effective at the time of delivery or
if mailed, two (2) business days after mailing.
(d) If there be more than one Tenant, the obligations hereunder imposed
upon Tenants shall be joint and several.
(e) The paragraph titles to the paragraphs of this Lease are not a part of
this and shall have no affect upon the construction or interpretation of any
part hereof.
(f) Time is of the essence of this Lease and each of its provisions in
which performance is a factor.
(g) The time in which any act provided by this Lease is to be done is
computed by excluding the first day and including the last, unless the last day
is a Saturday, Sunday, or holiday, and then it is also excluded. The term
"holiday" shall mean all holidays specified in Sections 6700 and 6701 of the
Government Code.
(h) The covenants and conditions herein contained, subject to the
provisions as to assignment, apply to and bind the heirs, successors, executors,
administrators and assigns of the parties hereto.
(i) Neither Landlord nor Tenant shall record this Lease or a short form
memorandum hereof without the prior written consent of the other party.
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(j) Upon Tenant paying the rent reserved hereunder and observing and
performing all of the covenants, conditions and provisions on Tenant's part to
be observed and performed hereunder, Tenant shall have quiet possession of the
Premises for the entire term hereof, subject to all the provisions of this
Lease.
(k) This Lease contains all of the agreements of the parties hereto with
respect to any matter covered or mentioned in this Lease. No prior agreements or
understandings pertaining to any such matters shall be effective for any
purpose. No provision of this Lease shall be amended or added except by an
agreement in writing signed by the parties hereto or their respective successors
in interest. This Lease shall not be effective or binding on any party until
fully executed by both parties hereto.
(l) If either party shall be delayed or prevented from the performance of
any act required by this Lease by reason of acts of God, strikes, lockouts,
labor troubles, inability to procure materials, restrictive governmental laws,
or regulations or other cause, without fault and beyond the reasonable control
of the party obligated (financial inability excepted), performance of such act
shall be excused for the period of the delay; and the period for the performance
of any such act shall be extended for a period equivalent for the period of such
delay, provided, however, nothing in this section shall excuse Tenant from the
prompt payment of any rental or other charge required of Tenant except as may be
expressly provided elsewhere in this Lease.
(m) In the event of any action or proceeding brought by either party against
the other under this Lease, the prevailing party shall be entitled to recover
all costs and expenses including the fees of its attorneys in such action or
proceeding in such amount as the court may adjudge reasonable as attorney's
fees.
(n) In the event of any sale of the building, Landlord shall be and is
hereby entirely freed and relieved of all liability under any and all of its
covenants and obligations contained in or derived from this Lease arising out of
any act, occurrence or omission occurring after the consummation of such sale
and the purchaser, at such sale or any subsequent sale of the Premises shall be
deemed, without any further agreement between the parties or their successors in
interest or between the parties and any such purchaser, to have assumed and
agreed to carry out all of the covenants and obligations of the Landlord under
this Lease.
(o) Tenant shall not use the name of the building or of the development in
which the building is situated for any purpose other than as an address of the
business to be conducted by the Tenant in the Premises.
(p) Any provision of this Lease which shall prove to be invalid, void or
illegal shall in no way affect, impair or invalidate any other provision hereof
and such other provision shall remain in full force and effect.
(q) No remedy or election hereunder shall be exclusive but shall, wherever
possible, be cumulative with all other remedies at law or in equity.
(r) This Lease shall be governed by the laws of the State of California.
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(s) Tenant shall not conduct any auction, on or at the Premises or building
without Landlord's prior written consent.
(t) Nothing contained in this Lease shall be deemed or construed by the
parties or by any third person to create the relationship of principal and agent
or of partnership or of joint venture or of any association between Landlord and
Tenant, and neither the method of computation of rent nor any other provisions
contained in this Lease nor any acts of the parties shall be deemed to create
any relationship between Landlord and Tenant other than the relationship of
Landlord and Tenant.
(u) (i) The language in all parts of this Lease shall in all cases be
simply construed according to its fair meaning and not strictly for or against
Landlord or Tenant. Unless otherwise provided in this Lease, or unless the
context otherwise requires, the following definitions and rules of construction
shall apply to this Lease.
(ii) In this Lease the neuter gender includes the feminine and
masculine, and the singular number includes the plural, and the word "person"
includes corporation, partnership, firm, or association wherever the context so
requires.
(iii) "Shall," "will," and "agrees" are mandatory, "may" is
permissive.
(iv) All references to the term of this Lease or the Lease Term shall
include any extensions of such Term.
(v) Parties shall include the Landlord and Tenant named in this
Lease.
(vi) As used herein, the word "sublessee" shall mean and include, in
addition to a sublease and subtenant, a licensee, concessionaire, or other
occupant or user of any portion of the leaned Premises or buildings or
improvements thereon.
(vii) Whenever the written consent of a party in required under any
provision of this Lease, such consent shall not be unreasonably withheld or
unduly delayed.
BROKERS
31. Each party warrants to the other that it has had no dealings with any
real estate broker or agent in connection with the negotiation of this Lease
other than Cornish & Xxxxx Commercial and it knows of no other real estate
broker or agent who is entitled to a commission in connection with this Lease.
Each party agrees to indemnify and hold the other harmless from any cost,
expense, or liability for any compensation, commissions, or charges claimed by
any other broker or agent who alleges he is owed a compensation through it.
Landlord agrees to pay any commissions owed to the above named broker and shall
hold Tenant harmless from any cost, expense, or liability therefor.
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LIST OF EXHIBITS
32. The following is a complete list of the documents attached hereto and
made a part of this Lease:
EXHIBIT DESCRIPTION
A Site Plan
The parties hereto have executed this Lease and on the dates specified
immediately adjacent to their respective signatures.
LANDLORD:
Cupertino Industrial Associates, a California General Partnership
By The Cortana Corporation, General Partner
By: /s/ Xxxxx X. Xxxxxxxxxx Date: 9/30/94
---------------------------------------- -------------------------------------------
Xxxxx X. Xxxxxxxxxx, President
TENANT:
NetManage, Inc.
By: /s/ X.X. Xxxxxxxx COO Date: 9/30/94
---------------------------------------- -------------------------------------------
Title
By: Date:
---------------------------------------- -------------------------------------------
Title
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MASTER LEASE
------------
EXHIBIT A
INDUSTRIAL BUILDING LEASE
RENEWAL AGREEMENT
This Industrial Building Lease Renewal Agreement ("Agreement"), dated for
reference purposes only, October 2, 1996 is made by and between Cupertino
----------
Industrial Associates, a California general partnership (herein "Landlord") and
NetManage, Inc. (herein "Tenant").
RECITALS
A. The parties hereto previously executed an Industrial Building Lease
dated September 30, 1994 wherein Landlord leased to Tenant a portion of the
building commonly known as 00000 Xxxxxxx Xxxxx, Xxxxxxxxx, Xxxxx Xxxxx Xxxxxx,
Xxxxxxxxxx; and
B. Tenant has timely elected to renew and extend the term of the
Industrial Building Lease; and
Now therefore, the parties hereto hereby agree as follows:
1. The term of the above referenced Industrial Building Lease is hereby
extended to midnight, April 30, 1999.
2. The Minimum Base Rental for the Premises for the period beginning May
1, 1997 and terminating April 30, 1998 is Thirty Nine Thousand Two Hundred
Eighty Nine and 68/100 Dollars per month ($39,289.68/month). The Minimum Base
Rental for the period beginning May 1, 1998 through April 30, 1999 shall be the
Minimum Base Rental for the first twelve (12) months of the renewal term
adjusted upward as of the first day of April, 1998 (the adjustment date)
according to the following computation:
The base for computing the adjustment is the index figure for February,
1997 (the index date) as shown in the Consumer Price Index (CPI), All Urban
Consumers, San Francisco-Oakland-San Xxxx, All Items, based on the period 1982-
84 = 100 as published by the U.S. Department of Labor's Bureau of Labor
Statistics.
The index figure for February, 1998 shall be computed as a percentage of
the base figure. For example, assuming the base figure on the index date is
160.0 and the index figure for February, 1998 is 168.0, the percentage to be
applied is:
168.0 = 1.05 = 105.0 percent.
-----
160.0
That percentage shall be applied to the Minimum Base Rental for the Premises for
the first
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twelve months (12) of the renewal period beginning on the adjustment date and
continuing until the end of the renewal period; provided, however, in no event
shall the increase be greater than 7% nor less than 4%.
The index for February, 1998 shall be the one reported in the U.S.
Department of Labor's most comprehensive official index then in use and most
nearly answering the foregoing description of the index to be used. If it is
calculated from a base different from the base period 1982-84 = 100 used for the
base figure above, the base figure used for calculating the adjustment
percentage shall first be converted under a formula supplied by the Bureau.
3. Tenant, having occupied the Premises since 1994, accepts them in
an "As Is" condition.
4. All other terms and condition of the original Industrial Building
Lease referred to above shall apply to the renewal period.
The parties hereto have executed this Agreement on the dates specified
immediately adjacent to their respective signatures.
LANDLORD:
Cupertino Industrial Associates, a California General Partnership
By The Cortana Corporation, General Partner
By /s/ Xxxxx X. Xxxxxxxxxx Date 10/7/96
----------------------------------------- ---------------------------------------------
Xxxxx X. Xxxxxxxxxx, President
TENANT:
NetManage, Inc.
By /s/ Xxxxxx Xxxxxx CFO Date 10/2/96
------------------------------------------ --------------------------------------------
Title
By Date
------------------------------------------ --------------------------------------------
Title
