EXHIBIT 10.15
[Renault & Xxxxxxx logo appears here]
INDUSTRIAL & COMMERCIAL REAL ESTATE
This Lease, executed in duplicate at Palo Alto, California,
this 28 day of September, 1999
PARTIES by and between
Xxxxx Investment Co.
and
Cobalt Networks, Inc., a California corporation
hereinafter called respectively Lessor and Lessee, without
regard to number or gender.
PREMISES 1. Witnesseth: That Lessor hereby leases to Lessee, and Lessee
hires from Lessor, those certain premises, hereinafter in this
lease designated as "the Premises," with the appurtenances,
situated in the City of Mountain View, County of Santa Xxxxx,
State of California, and more particularly described as
follows, to-wit:
An approximate 29,842 square foot industrial building commonly
referred to as 000 Xxxxx Xxxxxx.
USE 2. The Premises shall be used and occupied by Lessee for the
purpose of general office, sales, service, engineering,
research & development, manufacturing and any related lawful
purpose in conformity to municipal zoning requirements and any
CC&R applicable to the property and for no other purpose
without the prior written consent of Lessor.
TERM 3. The term shall be for four (4 years) 48 months, commencing
on the 1st day of April, 2000 and terminating on the 31st day
of March 2004.
RENTAL 4. Rent shall be payable to the Lessor without deduction or
offset initially at 0000 X0 Xxxxxx Xxxx, Xxxx Xxxx, XX 00000
or at such place or places as may be designated from time to
time by the Lessor as follows:
Twenty Thousand and NO/100ths Dollars ($20,000.000), due upon
execution of this Lease representing partial rental due April
1, 2000. An additional Fifty Thousand One Hundred Twenty Eight
and 70/100ths Dollars ($50,128.70 shall be due on April 1,
2000. Seventy Thousand One Hundred Twenty Eight and 70/100ths
dollars ($70,128.70) shall be due on May 1, 2000 and on the
first day of each and every month through March 1, 2001.
Seventy Three Thousand One Hundred Twelve and 90/100ths
Dollars ($73,112.90) shall be due on April 1, 2001 and on the
first day of each and every month through March 1, 2002.
Seventy Six Thousand Ninety Seven and 10/100ths Dollars
($76,097.10) shall be due on April 1, 2002 and on the first
day of each and every month through March 1, 2003. Seventy
Nine Thousand Eighty One and 30/100ths Dollars ($79,081.30)
shall be due on April 1, 2003 and on the first day of each and
every month through March 1, 2004.
SECURITY 5. On April 1, 2000 Lessee shall deposit with Lessor Seventy
Nine Thousand Eighty One Dollars and
DEPOSIT .30/100ths ($79,081.30) as security for the full and
faithful performance of each and every term, provision,
covenant and condition of this Lease. In the event Lessee
defaults in respect of any of the terms, provisions, covenants
or conditions of this Lease, including, but not limited to the
payment of rent, Lessor may use, apply or retain the whole or
any part of such security for the payment of any rent in
default or for any other sum which Lessor may spend or be
required to spend by reason of Lessee's default. Should Lessee
faithfully and fully comply with all of the terms, provisions,
covenants and conditions of this Lease, the security of any
balance thereof shall be returned to Lessee or, at the option
of Lessor, to the last assignee of Lessee's interest in this
Lease at the expiration of the term hereof. Lessee shall not
be entitled to any interest on said security deposit.
POSSESSION 6. If Lessor, for any reason whatsoever, cannot deliver
possession of the Premises to Lessee at the commencement of
the said term, as hereinbefore specified, this Lease shall not
be void or voidable, nor shall Lessor, or Lessor's agents, be
liable to Lessee for any loss or damage resulting therefrom;
but in that event the commencement and termination dates of
the Lease and all other dates affected thereby shall be
revised to conform to the date of Lessor's delivery of
possession. The above is, however, subject to the provision
that the period of delay of delivery of the Premises shall not
exceed Thirty (30) days from the commencement date herein. If
the period of delay of delivery exceeds the foregoing, Lessee,
at his or it's option, may declare this Lease null and void.
ACCEPTANCE 7. By entry hereunder, the Lessee accepts the Premises as
OF being in good and satisfactory condition, unless within
PREMISES Sixty (60) days after such entry Lessee shall give Lessor
AND written notice specifying in reasonable detail the
CONSENT TO respects in which the Premises were not in satisfactory
SURRENDER condition, and Lessor shall promptly repair such items.
The Lessee agrees on the last day of the term hereof, or on
sooner termination of this Lease, to surrender the Premises,
together with all alterations, additions, and improvements
which have been made in, to, or on the Premises by Lessor or
Lessee, unto Lessor in the same good condition as at Lessee's
entry into the Premises excepting for such wear and tear as
would be normal for the period of the Lessee's occupancy, Acts
of God, casualty, condemnation, hazardous materials not
stored, used or disposed of by Lessee and alterations with
respect to which Lessor has not required removal. The Lessee,
on or before the end of the term or sooner termination of this
Lease, shall remove all Lessee's personal property and trade
fixtures from the Premises and all property not removed shall
be deemed abandoned by the lessee. If the Premises be not
surrendered at the end of term or sooner termination of this
Lease, the Lessee shall indemnify the Lessor against loss or
liability resulting from delay by the Lessee in so
surrendering the Premises including, without, limitation, any
claims made by any succeeding tenant founded on such delay.
USES 8. Lessee shall not commit, or permit to be committed, any
PROHIBITED waste upon the Premises, or any nuisance,or other act or thing
which may disturb the quiet enjoyment of any other tenant in
or around the buildings in which the Premises may be located,
or allow any sale by auction upon the Premises, or allow the
premises to be used for any unlawful purpose, or place any
loads upon the floor, walls, or roof which endanger the
structure, or place any harmful liquids in the drainage system
of the building. No waste materials or refuse shall be dumped
upon or permitted to remain upon any part of the Premises
outside of the building proper. No materials, supplies,
equipment, finished products or semi-finished products, raw
materials or articles of any nature shall be stored upon or
permitted to remain on any portion of the Premises outside of
the buildings proper.
ALTERATIONS 9. Except for nonstructural alterations not exceeding Seventy
AND Five Hundred Dollars ($7500.00) per work of improvement, the
ADDITIONS Lessee shall make no alterations, additions, or improvements
to the Premises or any part thereof without first obtaining
the prior written consent of the Lessor, which shall not be
unreasonably withheld or delayed. The Lessor may impose as a
condition to the aforesaid consent such requirements as Lessor
may reasonably deem necessary in Lessor's discretion,
including without limitation thereto the manner in which the
work is done, a right of approval of the contractor by whom
the work is to be performed which approval shall not be
unreasonably withheld or delayed, the times during which it is
to be accomplished, and the requirement that upon written
request of Lessor made at the time that Lessee requests
consent to such, prior to :the expiration or earlier
termination of the Lease, Lessee will remove any or all
improvements or additions to the Premises installed at
Lessee's expense. All such alterations, additions or
improvements not specified to be removed shall at the
expiration or earlier termination of the lease become property
of the Lessor and remain upon and be surrendered with the
Premises. All movable furniture, business and trade fixtures,
or machinery and equipment shall remain in the property of the
Lessee and may be removed by the Lessee at any time during the
Lease
term when Lessee is not in default beyond applicable cure
period. Items which are not to be deemed as movable furniture,
business and trade fixtures, or machinery and equipment shall
include heating, lighting, electrical systems, air
conditioning, hard wall partitioning, carpeting, or any other
installation which has become an integral part of the
Premises. The Lessee will at all times permit notices of
non-responsibility to be posted and to remain posted until the
completion of alterations or additions which have been
approved by the Lessor.
XXXXXX- 00. Subject to the Memorandum of Understanding, Lessee
XXXXX OF shall, at Lessee's sole cost, keep and maintain the Premises
PREMISES and appurtenances and every part thereof, including but not
limited to, glazing, sidewalks, parking areas, plumbing,
electrical systems, heating and air conditioning
installations, any store front, roof covering - unless it is
not feasible to repair the existing roof coveting and a new
roof is required, and the interior of the Premises in good
order, condition, and repair. Lessor at the Lessor's sole cost
and expense shall maintain the exterior of the walls, and
structural portions of the roof, foundations, walls and floors
except for any repairs caused by the wrongful act of the
Lessee and Lessee's agents. The Lessor will replace the roof
covering if repairs to said coveting are no longer
economically feasible in the judgement of roofing experts, and
provided said replacement is not made necessary by acts of the
Lessee and Lessee's agents. The Lessee shall water, maintain
and replace, when necessary, any shrubbery and landscaping
provided by the Lessor on the Premises. The Lessee expressly
waives the benefits of any statute now or hereafter in effect
which would otherwise afford the Lessee the right to make
repairs at Lessor's expense or to terminate this Lease became
of Lessor's failure to keep the Premises in good order,
conditions or repair.
FIRE AND 11. See revised insurance clause attached.
EXTENDED
COVERAGE
INSURANCE
AND
SUBROGATION
ABANDON- 12. Lessee shall not vacate or abandon the Premises while in
MENT default of it's obligation to pay rent; and if Lessee shall
abandon, vacate, or surrender, the Premises while in default
of it's obligation to pay rent, or be dispossessed by process
of law, or otherwise, any personal property belonging to
Lessee and left on the Premises shall be deemed abandoned, at
the option of the Lessor, except such property as may be
mortgaged to Lessor.
FREE FROM 13. Lessee shall keep the Premises and the property in
LIENS which the Premises are situated, free from any lien
arising out of any work performed, materials furnished, or
obligations incurred by Lessee.
COMPLIANCE 14. As of commencement date, Premises is in compliance
WITH with applicable law. Lessee shall, at his sole cost and
GOVERN- expense, comply will all the requirements of all Municipal,
MENTAL State, and Federal authorities, which may hereafter be in
REGULATIONS force, pertaining to the Lessee's particular use of the
Premises and shall faith- fully observe in the use of the
Premises all Municipal ordinances and State and Federal
statutes now in force or which may hereafter be in force. The
judgement of any court of competent jurisdiction, or the
admission of Lessee in any action or proceeding against
Lessee, whether Lessor be a party thereto or not, that Lessee
has violated any such ordinance or statute in the use of the
Premises, shall be conclusive of the fact as between Lessor
and Lessee. With respect to cost incurred to comply with laws
of applicability to owners of commercial property in general,
Lessor shall pay such costs, amortized over the useful life of
the improvement and Lessee shall pay the Lessor the amortized
costs falling due during the term as extended on a monthly
basis.
INDEMNI- 15. The Lessee, as a material part of the consideration to be
FICATION OF rendered to the Lessor, hereby waives all claims against the
LESSOR AND Lessor for damages to goods, wares, and merchandise, and all
LESSEE'S other personal property in, upon, or about the Premises and
LIABILITY for injuries to persons in or about the Premises, from any
INSURANCE cause arising at any time, excepting claims arising from the
Lessor's negligence or willful misconduct or that of it's
agent, employees, or contractors, and the Lessee will hold the
Lessor exempt and harmless from any damage or from the use of
the Premises by the lessee, or from the failure of the Lessee
to keep the Premises in good condition and repair, as herein
provided. See revised insurance clause attached.
ADVERTISE- 16. Lessee will not place or permit to be placed, in, upon or
MENTS AND about the Premises any unusual or extraordinary signs, or
SIGNS any signs not approved by the city or other governing
authority. The Lessee will not place, or permit to be placed,
upon the Premises, any signs, advertisements, or notices
without the written consent of the Lessor first had and
obtained, which shall not be unreasonably withheld or delayed.
Any sign so placed on the Premises shall be so placed upon the
understanding and agreement that the Lessee will remove same
at the termination of the tenancy herein created and repair
any damage or injury to the Premises caused thereby, and if
not so removed by Lessee then Lessor may have same so removed
at Lessee's expense.
UTILITIES 17. Lessee shall pay for all water, gas, heat, light, power,
telephone service and all other service supplied to the
Premises. If the premises are not served by a separate water
meter, the Lessee shall pay to the Lessor 100 percent of the
water xxxx for the Premises.
ATTORNEY'S 18. In case suit shall be brought for the possession of the
FEES Premises, for the recovery of any sum due hereunder, or
because of the breach of any other covenant herein, the losing
party shall pay to the prevailing party a reasonable
attorney's fee, which shall be deemed to have accrued on the
commencement of such action and shall be enforceable whether
or not such action is prosecuted to judgement.
DEFAULT 19. In the event of any failure by Lessee to pay rent within
5 days after receipt of notice from Lessor that such sum is
due, or any failure by Lessee to perform any other obligation
on its part to be performed within 15 days after receipt of
written notice form Lessor (or if the failure is not capable
of cure within 15 days, Lessee shall not be in default
hereunder if Lessee commences the cure within the 15 day
period and thereafter prosecutes the cure to completion), or
an abandonment of the property by Lessee coupled with Lessee's
failure to pay rent hereunder, the Lessor has the option of 1)
removing all persons and property from the Premises and
repossessing the Premises in which case any of the Lessee's
property which the Lessor removes from the Premises may be
stored in a public warehouse or elsewhere at the cost of, and
for the account of the Lessee, or 2) allowing the Lessee to
remain in full possession and control of the Premises. If the
lessor chooses to repossess the Premises, the lease will
automatically terminate in accordance with provisions of the
California Civil Code, Section 1951.2. In the event of such
termination of the Lease, the Lessor may recover from the
Lessee: 1) the worth at the time of award of the unpaid rent
which had been earned at the time of termination including
interest at 7% per annum; 2) the worth at the time of award of
the amount by which the unpaid rent which would have been
earned after termination until the time of award exceeds the
amount of such rental loss that the Lessee proves could have
been reasonably avoided including interest at 7% per annum; 3)
the worth at the time of such rental loss that the Lessee
proves could be reasonably avoided; and 4) any other amount
necessary to compensate the Lessor for all the detriment
proximately caused by the Lessee's failure to perform his
obligations under the Lease or which in the ordinary course of
things would be likely to result therefrom. If the Lessor
chooses not to repossess the Premises, but allows the Lessee
to remain in full possession and control of the Premises, then
in accordance with provisions of the California Civil Code,
Section 1951.4, the Lessor may treat the Lease as being in
full force and effect, and may collect from the Lessee all
rents as they become due through the termination date of the
lease as specified in the a) Acts of maintenance or
preservation or efforts to relet the property, b) the
appointment of a receiver on the initiative of the Lessor to
protect his interest under this Lease.
LATE 20. Lessee hereby acknowledges that late payment by Lessee
CHARGES to Lessor of rent and other sums due hereunder will cause
Lessor to incur costs not contemplated by this lease, the
exact amount of which will be extremely difficult to impose
the Lessor by the terms of any mortgage or trust deed covering
the Premises. Accordingly, if any installment of rent or any
other sum due from Lessee shall not be received by Lessor or
Lessor's designee within five (5) days after such amount shall
be due, Lessee shall pay to Lessor a late charge equal to ten
percent (10%) of such overdue amount. The parties hereby agree
that such late charge represents a fair and reasonable
estimate of the cost Lessor will incur by reason of late
payment by Lessee. Acceptance of such late charge by Lessor
shall in no event constitute a waiver of Lessee's default with
respect to such overdue amount, nor prevent Lessor from
exercising any of the other rights and remedies granted
hereunder.
SURRENDER 21. The voluntary or other surrender of this Lease by Lessee,
OF LEASE or a mutual cancellation thereof, shall not work a merger, and
shall, at the option of Lessor, terminate all of any existing
subleases or subtenancies, or may, at the opinion of Lessor,
operate as an assignment to him of any of all such subleases
or subtenancies.
TAXES 22. The Lessee shall be liable for all taxes levied against
personal property and trade or business fixtures. The Lessee
also agrees to pay, as an additional rental, during the term
of this Lessee and any extension thereof, all real estate
taxes plus the yearly installments of any special assessments
which are of record or which may become of record during the
term of this lease. If said taxes and assessments are assessed
against the entire building and building site, and this Lease
does not cover the entire building or building site, the taxes
and assessment installments allocated to the Premises shall be
pro-rated on a square footage or other equitable basis. It is
understood and agreed that the Lessee's obligation under this
paragraph will be pro-rated to reflect the commencement and
termination dates of this Lease.
NOTICES 23. All notices to be given to Lessee may be given in writing
personally or by depositing the same in the United States
mail, postage prepaid, and address to Lessee at the said
premises, whether or not Lessee has departed from, abandoned
or vacated the Premises.
ENTRY BY 24. Lessee shall permit Lessor and his agents to enter into
LESSOR and upon the Premises at all reasonable times upon reasonable
prior notice for the purpose of inspecting the same or for the
purpose of maintaining the building in which the Premises are
situated, or for the purpose of making repairs, alterations or
additions to any other portion of said building, including the
erection and maintenance of such scaffolding, canopies, fences
and props as may be required without any rebate of rent and
without any liability to Lessee for any loss of occupation or
quiet enjoyment of the Premises thereby occasioned; and shall
permit Lessor and his agents, at any time within ninety days
prior the expiration of this Lease, to place upon the Premises
any usual or ordinary "For Sale" or "To Lease" signs and
exhibit the Premises to prospective tenants at reasonable
hours. Lessor's exercised of the forgoing rights shall not
materially increase Lessee's obligations or diminish Lessee's
rights under this lease.
DESTRUCTION 25. In the event of a partial destruction of the Premises
OF PREMISES during the said term from any cause, except earthquake, Lessor
shall forthwith repair the same, provided such repairs can be
made within one hundred eighty (180) days under the laws and
regulations of State, Federal, County or Municipal
authorities, but such partial destruction shall in no way
annul or void this Lease, except that Lessee shall be entitled
to a proportionate reduction of rent while such repairs are
being made, such proportionate reduction to be based upon the
extent to which the making of such repairs shall interfere
with the business carded on by Lessee in the Premises. If such
repairs cannot be made within one hundred eighty (180) days,
Lessor may, at his opinion, make same within a reasonable
time, this Lease continuing in full force and effect and the
rent to be proportionately reduced as aforesaid in this
paragraph provided. In the event that Lessor does not elect to
make such repairs which cannot be made within one hundred
eighty (180) days, or such repairs cannot be made under such
laws and regulations, this Lease may be terminated at the
option of either party. In respect to any partial destruction
which Lessor is obligated to repair may elect to repair under
the terms of this paragraph, the provisions of Section 1932,
Subdivision 2, and of Section 1993, Subdivision 4, of the
Civil Code of the State of California are waived by Lessee. In
the event that the building in which the Premise may be
situated by the extent of no less than 33 1/3% of the
replacement cost thereof, Lessor may elect to terminate this
Lease, whether the Premises is injured or not. A totally
destruction of the building in which the Premises may be
situated shall terminate this Lease. In the event of any
dispute between Lessor and Lessee relative to the previsions
of this paragraph, they shall each elect and arbitrator, the
two arbitrators so selected shall select a third arbitrator
and the three arbitrators so selected shall hear and determine
the controversy and there decision thereon shall be final and
binding upon both Lessor and Lessee, who shall bear the cost
of such arbitration equally between them. Lessee has the right
to terminate if the damage or destruction occurs during the
last 12 months of the term or if Lessor fails to complete
repairs or reconstruction within 180 days after the date of
damage or destruction.
ASSIGNMENT 26. The Lessee shall not assign, transfer, or hypothecate the
leasehold estate under the Lease, or any
AND SUBLET- interest therein, and shall not sublet the Premises, or any
ING part thereof, or any right of privilege appurtenant thereto,
or suffer any other person or entity to occupy or use the
Premises, or any portion thereof, without, in each case, the
prior consent of the Lessor. Lessor agrees to not unreasonably
withold or delay consent to sublet or assign. As a condition
for granting its consent to any subletting the Lessor may
require the Lessee to agree to pay to the Lessor, as
additional rental 50% of all rents after expenses, received by
the Lessee from its Sublessee which are in excess of the mount
payable to the Lessee to the Lessor hereunder. The Lessee
shall, by thirty (30) days written notice, advise the Lessor
of its intent to sublet the Premises or any portion thereof
for any part of the term hereof. Within fifteen (15) days
after receipt of Lessee's notice, Lessor shall either give
approval to Lessee to sublease the portion of the Premises
described in Lessee's notice, or Lessor shall terminate this
Lease as to the portion of the Premises described in Lessee's
notice on the day specified in Lessee's notice. If, however,
Lessor elects to terminate Lessee shall have the right upon
five (5) days notice to Lessor to recind it's request for
consent, in which case this Lease shall remain in full force
and effect. If Lessee intends to sublet the entire Premises
and Lessor elects to terminate this Lease, this Lease shall be
terminated on the date specified in the Lessee's notice. If,
however, this Lease shall terminate pursuant to the foregoing
with respect to less than all the Premises, the rent, as
defined and reserved herein above shall be adjusted on a
prorata basis to the number of square feet retained by Lessee,
and this Lease as so amended shall continue in full force and
effect. If the Lessor approves a subletting, the Lessee may
sublet immediately after receipt of the Lessor's written
approval. In the event Lessee is allowed to assign, transfer
or sublet the whole or any part of the Premises, with the
prior consent of the Lessor, no assignee, transferee or
sublessee shall assign or transfer this Lease, either in whole
or in part, or sublet the whole or any part of the Premises,
without also having obtained the prior written consent of the
Lessor. A consent of Lessor to one assignment, transfer,
hypothecation, subletting, occupation of use by any other
person shall not release Lessee from any Lessee's obligations
hereunder or be deemed to be a consent to any subsequent
similar of dissimilar assignment, transfer, hypothecation,
subletting, occupation or use by any other person. Any such
assignment, transfer, hypothecation, subletting, occupation or
use without such consent shall be void and shall constitute a
breach of this Lease by Lessee and shall, at the opinion of
Lessor exercised by written notice to Lessee, terminate this
Lease. The leasehold estate under this Lease shall not, nor
shall any interest therein, be assignable of any purpose by
operation of law without the written consent of Lessor. As a
condition to its consent, Lessor may require Lessee to pay all
expense in connection with the assignment not to exceed five
thousand dollars ($50,00) per request, and Lessor may require
Lessee's assignee or transferee (or other assignees of
transferees)to assume in writing all of the obligations under
this Lease.
CONDEM- 27. If any part of the Premises shall be taken for any public or
NATION quasi-public use, under any statute or by right of eminent
domain or private purchase in lieu thereof, and a part thereof
remains which is susceptible of occupation hereunder, this
Lease shall, as to the part so taken, terminate as of the date
title shall vest in the condemnor or purchaser, and the rent
payable hereunder shall be adjusted so that the Lessee shall
be required to pay for the remainder of the term only such
portion of such rent as the value of the part remaining after
such taking bears to the value of the entire Premises prior to
such taking; but in such event Lessor shall have the potion to
terminate this Lease as of the day when title to the part so
taken vests in the condemnor or purchaser. If all of the
Premises, or such part thereof to be taken so that there does
not remain a portion susceptible for occupation hereunder,
this Lease shall be thereupon terminated. If a part or all the
Premises be taken, all compensation awarded upon such taking
shall go to the Lessor and the Lessee shall be entitled to any
separate award made by the condemning authority for moving
costs, relocation expenses, loss of good will, and
improvements paid for by Lessee.
EFFECT OF 28. The term "Lessor" as used in this Lease, means only the
CONVEYANCE owner for the time being of the land and building containing
the Premises, so that, in the event of any sale of said land
or building, or in the event of lease of said building, the
Lessor shall be and hereby is entirely free and relieved of
all covenants and obligations of the Lessor hereunder, and it
shall be deemed and construed, without further agreement
between the parties and the purchaser at any such sale, or the
Lessee of the building, that the purchaser or Lessee of the
building has assumed and agreed to carry out any and all
covenants and obligations of the Lessor hereunder. If any
security be given by the Lessee to secure the faithful
performance of all or any of the covenants of this Lease on
the part of the Lessee, the Lessor shall transfer and deliver
the
security, as such, to the purchaser at any such sale or the
lessee of the building, and thereupon the Lessor shall be
discharged from any further liability in reference thereto.
SUBORDI- 29. Lessee agrees that this Lease may, at the opinion of
NATION Lessor, be subject and subordinate to any mortgage,
deed of trust or other instrument of security which has been
or shall be placed on the land and building of which the
Premises form a part, and this subordination is hereby made
effective without any further act of Lessee. The Lessee shall,
at any time hereinafter, on demand, execute any instruments,
releases, or other documents that may be required by a
mortgagee, mortgagor, or trustor or beneficiary under any deed
of trust for the purpose of subjecting and subordinating this
Lease to the lien of any such mortgage, deed of trust or any
other instrument of security, and the failure of the Lessee to
execute any such instruments, releases or documents, shall
constitute default hereunder. Any subordination pursuant to
this section shall not be effective unless the holder of any
such instrument executes a nondisturbance and attornment
agreement allowing the Lessee to continue enjoying the
tennancy without interruption or obstruction. Notwithstanding
anything to the contrary contained in this Lease, by no later
than the commencement date hereof, Lessor shall obtain from
any existing lenders or ground lessors of the Premises a
written agreement in form reasonably satisfactory to Lessee's
providing for recognition of Lessee's interest or under this
Lease in the event of a foreclosure of the lender's security
interest or termination of the ground lease. Further, as a
condition to Lessee's obligation to subordinate its leasehold
interest to a any future ground lease or instrument security,
Lessor shall obtain from any such ground landlords or lenders
a written recognition agreement in form reasonably
satisfactory to Lessee providing that Lessee's rights of
occupancy shall no be disturbed in the event of such
termination or foreclosure, Lessee shall receive all of the
services, provided for under this Lease.
WAIVER 30. The waiver by Lessor of any branch of any term, covenant
or condition, herein contained shall be deemed to be a waiver
of such a term, covenant or condition of any subsequent breech
of the same or any other term, covenant of condition therein
contained. The subsequent acceptance of rent hereunder by
Lessor shall not be deemed to be a waiver of any preceding
breach by Lessee by any term, covenant or condition of this
Lease, other than the failure of Lessee to pay the particular
rent so accepted, regardless of Lessor's knowledge of such
preceding breach at the time of acceptance of such rent.
HOLDING 31. Any holding over after the expiration of the said term,
OVER with the consent of Lessor, shall be construed to be a tenancy
from month to month, at a rental to be negotiated by Lessor
and Lessee prior to the expiration of said term, and shall
otherwise be on the terms and conditions herein specified, so
far applicable.
SUCCESSORS 32. The covenants and conditions herein contained shall,
AND ASSIGNS subject to the provisions as to assignment, apply to and
bind the heirs, successors, executors, administrators and
assigns for all of all the parties hereto; and all of the
parties hereto shall be jointly and severally liable
hereunder.
TIME 33. Time is of the essence of this Lease.
MARGINAL 34. The marginal headings or title to the paragraphs of this
CAPTIONS Lease are not a part of this Lease and shall have no effect
upon the construction and interpretation of any part thereof.
This instrument contains all of the agreements and conditions
made between the parties hereto and may not be modified orally
or in any other manner than by an agreement in writing signed
by all of the parties hereto in there respective successors in
interest.
Paragraphs 35, 36, and Memorandum of Understanding are hereby made a
part of this Lease.
THIS LEASE HAS BEEN PREPARED FOR SUBMISSION TO YOUR ATTORNEY WHO WILL REVIEW
THE DOCUMENT AND ASSIST YOU TO DETERMINE WHETHER YOUR LEGAL RIGHTS ARE
ADEQUATELY
PROTECTED RENAULT & XXXXXXX IS NOT AUTHORIZED TO GIVE LEGAL AND TAX ADVICE. NO
REPRESENTATION OR RECOMMENDATION IS MADE BY RENAULT & XXXXXXX OR ITS AGENTS OR
EMPLOYEES AS TO THE LEGAL SUFFICIENCY, LEGAL EFFECT OR TAX CONSEQUENCES OF THIS
DOCUMENT OR ANY TRANSACTION RELATING THERETO. THESE ARE QUESTIONS FOR YOUR
ATTORNEY WITH EHOM YOU SHOULD CONSULT BEFORE SIGNING THIS DOCUMENT.
IN WITNESS WHEREOF, Lessor and Lessee have executed there presents, the day
and year first written above.
LESSOR LESSEE
Xxxxx Investment Co. Cobalt Networks, Inc.
By By /s/ xxx
------------------------------- ------------------
Printed Printed Xxxx Xxxxxxx
------------------------------- ------------------
Date Date 10/25/99
------------------------------- ------------------
ADDITIONAL PARAGRAPH
The additional paragraphs are hereby made a part of that certain Lease
dated September 28, 1999 by and between Xxxxx Investment Co., Lessor and Cobalt
Networks, Inc., Lessee covering the Premises at 000 Xxxxx Xxxxxx, Xxxxxxxx Xxxx,
Xxxxxxxxxx.
35. Lessor grants to Lessee the option of renewing this Lease for one (1)
additional 2 year term commencing on the termination day of the Lease. The
option period shall be governed by all the same terms and conditions as
contained in the original Lease excepting the monthly rental which shall be then
fair market for comparable office/R&D buildings in the Xxxxx/Middlefield area.
Lessor and Lessee shall reasonably negotiate fair market value for a period of
thirty (30) days. If at the end of the thirty; (30) day period, Lessor and
Lessee have not agreed upon Fair Market rental value, Lessee shall have the
right to rescind it's exercised options. In no event however, shall the monthly
rental for the option period be less than $79,081.30. In order to exercise this
option, Lessee must give Lessor six (6) months written notice prior to the
termination of the original term.
36. Lessor will hold Lessee harmless from and against all costs of response,
corrective action, remedial action, claims, demands, losses and liabilities
arising from any pre-existing environmental contamination which may have
occurred prior to the Lessee taking possession of the Premises.
Lessee will only be responsible for contamination of the Premises of the soils
or ground water thereon or thereunder in violation of Hazardous Materials Law,
that is caused by Lessee or Lessee's agents, contractors or invitees during the
term as may be extended. All hazardous materials and toxic wastes that Lessee
brings on the Premises shall be stored according to Hazardous Materials' Law.
All hazardous materials and toxic wastes that Lessee brings on the site shall be
stored according to all local, sate and national regulations. Hazardous
materials shall be defined as those substances that are recognized as posing a
risk of injury to health or safety by the Santa Clare Fire Department, the Santa
Xxxxx Health Department, the Regional Water Quality Control Board, the State of
California or Federal Government.
For the purpose of this Lease, "Hazardous Materials Law" shall meant all local,
state, and federal laws, shames, ordinances, rules, regulations, judgements,
injunctions, stipulations, decrees, orders, permits, approval, treaties or
protocols now of hereafter enacted, issued of promulgated by any government
authority which relate to any Hazardous Materials of the use, handling,
transportation, production, disposal, discharge, release, emission, sale or
storage of, or the exposure of any person to, a Hazardous Material.
MEMORANDUM OF UNDERSTANDING
Parties: Cobalt Networks, Incorporated Xxxxx Investment Co.
Date: September 28, 1999
RE: That certain Lease dated September 28, 1999 by and between
Renault & Xxxxxxx, Xxxxx Investment Co., Lessor and
Cobalt Networks, Inc., Lessee for and approximate 29,842
square foot industrial building commonly know as 000 Xxxxx
Xxxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx.
It is agreed as follows:
Lessor to deliver the building in good Working condition, as follows:
A) Electrical Wiring to be Compliant
B) Building Seams at Column lines C9 and B9 to be Sealed. C) Exterior
building lighting to be working properly.
D) Lessor understands that the Existing Category Five (CAT 5) wiring,
voice/data lines are part of the structure and will remain with
the building during Cobalt's occupancy. Lessor to make its best
effort to have Connect, Inc. tag end to end the CAT 5 wiring,
voice/data lines and leave them in operable condition. Further,
Lessee shall have the right to sever and access the two (2) eight
inch cable conduits that run along the back roof line of the
property.
Lessor understands and has approved Lessee's tenant improvement plans to demise
the premises and Sublease a portion of the building, per the attached "Exhibit
A".
Lessor agrees that Lessee shall have full and unrestricted access to the
Property for 31 days prior to lease commencement for the purpose of equipment
installation and fixturing the Property for Lessee's use. Said early access
shall be extended rent free to Lessee, but in all other respects shall be
governed by the terms of this lease including the payment of utilities and
insurance costs.
Lessor as part of the consideration for the execution of this Lease, power-wash
the exterior or the Premises, clean up the landscape area and repair damaged
asphalt in the parking lot. Lessee is entitled to all parking designated for the
Property.
Notwithstanding anything to the contrary contained in par 10 of the above Lease,
Lessor shall be responsible for landscaping and parking lot maintenance,
including resealing and restriping the parking areas when needed. Lessor shall
also be responsible for the maintenance of the roofing fabric including the
clearing of drains, resealing of penetrations when necessary and all service
calls due to water leaks. Lessor shall also pay for a service which will provide
monthly HVAC inspections and maintenance. Lessee shall be responsible, for all
HVAC repair as specific in par 10 of the Lease. Lessee agrees to pay to Lessor
for this common area maintenance (CAM) the sum of 930.00/mo. Which sum shall be
payable with the monthly rental amount.
READ & AGREED:
Xxxxx Investment Co. Cobalt Networks, Inc.
By By /s/ xxx
------------------------------- --------------
Date ------------------------------- Date 10/28/99
--------------
REVISED INSURANCE CLAUSE
This Lease Clause replaces the Insurance Clause (11.) in the Renault & Xxxxxxx
Net Lease Form
11. Lessee shall not use, or permit on the Premises, or any part thereof, to be
used, for any purpose other than that for which the Premises are hereby Leased;
and no use shall be made or permitted to be made on the Premises nor acts done,
which will cause a cancellation of any insurance policy coveting the said
building, or any part thereof, or shall Lessee sell or permit to keep, used or
sold, in or about the Premises, any article which may be prohibited by the
standard form of fire insurance policies. Lessee shall, at his whole cost and
expense, comply with any and all requirements, pertaining to the Premises, of
any insurance organization of company, necessary for the maintenance of
reasonable fire and public liability insurance, coveting said building and
appurtenances.
11.1 Lessee shall, at its expense, obtain and keep in force during the term of
this Lease a policy of comprehensive public liability insurance insuring Lessee,
Lessor, and any third parties named by Lessor which may include only Lessor's
lender and property manager, if any, against any liability arising out of the
condition, use, occupancy or maintenance of the Premises. Such insurance shall
have a combined single limit for both bodily injury and property damage in an
amount no less than One Million and No/100ths Dollars ($1,000,000.00). The
limits of said insurance shall not limit the liability of Lessee hereunder.
11.2 Lessee shall, at its expense, keep in force during the term of this Lease,
a policy of fire and property damage insurance in an "all risk" with a sprinkler
leakage endorsement, insuring Lessee's inventory, fixtures, equipment and
personal property within the Premises for the full replacement value thereof.
11.3 Lessor shall maintain a policy or policies of fire a property damage
insurance in an "all risk" form, with sprinkler and, at the option of Lessor,
earthquake endorsements, coveting loss or damage of the building, including
Lessee's leasehold improvements installed with the written consent of the Lessor
at 100% full replacement value with such additional coverage as Lessor deems
advisable.
11.4 Lessee shall pay to Lessor as an additional rent, during the term thereof,
within twenty (20) days after receipt of an invoice therefore, 100 percent of
the premiums for any insurance obtained by Lessor pursuant to 11.3 above. Lessor
may obtain such insurance for the Building separately, or together with other
buildings and improvements which Lessor elects to insure together under blanket
policies of insurance. In such case Lessee shall be liable for only such portion
of the premium for such blanket policies as are allocable to the Premises. It is
understood and agreed that Lessee's obligation under this paragraph shall be
prorated to reflect the Commencement Date and Expiration Date of the Lease.
11.5 Lessee and Lessor hereby waiver any and all rights of recovery against the
other, or against the officers, directors, employees, partners; agents and
representative of the other, for loss or damage to the property of the waiving
party or the property of others under its control, to the extent such loss or
damage is insured against any under insurance policy carried by Lessor or Lessee
hereunder. Each party shall notify their respective insurance carriers of this
waiver.
(Map)
COBALT SCHEME
Thank you for choosing to do business with us. This Agreement has the purpose of
licensing the right to (i) incorporate the RSA Software into your product and
(ii) use and/or distribute to and users the RSA Software solely as incorporated
into such products. In return, You agree to pay RSA the license fees described
in this agreement for its attachments) which are typically comprised of an
initial payment of license fees, plus on-going per unit license fees, but,
alternatively, may consist of annual license fee amounts or other arrangement as
described in this Agreement. This license is for object code only. Maintenance
and support for the RSA Software licensed, if elected, is under separate terms
and conditions. This License Agreement is to be construed and interpreted in
accordance with this general purpose, though any conflict between this general
purpose and the express terms found in this License Agreement shall be resolved
in favor of the express terms.
Enterprise Name ("You"): Cobalt Networks, Inc. Jurisdiction of Incorporation:DE
--------------------- --
Street Address: 000 Xxxxx Xxxxxx
----------------------------------------------------------------
City: Mountain View State & Zip Code: CA 94043
--------------------------------------------------------------------------
Enterprise Legal Contact (Name & Title) : Xxxxxxx Xxxxxxxxx, Director of
--------------------------------------
Business Development
--------------------------------------------------------------------------------
Agreement Number: 0999-COB-0-OEM-1
---------------------------------------------------------------
This LICENSE AGREEMENT (the "Agreement"), effective as of the later date of
execution ("Effective Date"), is entered into by and between RSA Data Security,
Inc. a Delaware corporation ("RSA"), having a principal address et 0000 Xxxxxx
Xxxxx, Xxxxx 000, Xxx Xxxxx, XX 00000-0000, and the Enterprise identified above
1 DEFINITIONS
The following terms when used in this Agreement shall have the following
meanings:
1.1 "LICENSED PRODUCT(S) " means one or more of Your products or product groups
identified in the attached "Product and License Fee Exhibit" which has been or
will be developed by You and which incorporates in any manner any portion of the
RSA Software. a Licensed Product (i) must represent a significant functional and
value enhancement to the RSA Software such that the primary reason to license
such Licensed Product is other than the right to receive a license to the
functionality of the RSA Software included in the Licensed Product, (ii) shall
not expose or, directly or indirectly, pass through any APIs, and (iii) shall
not be a security add-on or "bolt-on," the primary purpose of which is providing
security to a third party's product.
1.2 "DISTRIBUTOR" means a dealer or distributor in the business of reselling or
relicensing Licensed Products to End User Customers, directly or through one or
more Distributors, by virtue of authority granted by You. Licensed Products
resold by a Distributor shall bear Your trademarks and service marks and shall
not be privately labeled by such Distributor or other parties. a Distributor
shall have no right to add to or modify any part of the Licensed Product.
1.3 "END USER CUSTOMER" means a person or an entity (a third party or Your
employees solely for their internal business purposes) receiving RSA Software as
part or a Licensed Product from You or a Distributor for their personal or
internal use and primarily not for resale, redistribution or other transfer of
such Licensed Product to any other person or entity,
1.4 "RSA SOFTWARE" means RSA's proprietary software identified on the attached
"Product and License Fee Exhibit" (and including only these algorithms listed
therewith), as further described in the User Manual(s) associated therewith.
1.5 "TERRITORY" means worldwide, subject to Section 11.6.
1.6 "UPDATES" means any new version of the RSA Software designated by a
progressing of the release number (either right or left of the decimal point)
following the version initially shipped hereunder.
1.7 "USER MANUAL" means the most current version of the user manual and/or
reference manual customarily supplied by RSA to entities who license the RSA
Software.
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