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EXHIBIT 10.13
LEASE
THIS LEASE is made on the 6th day of July, 1995, by and between Los Gatos
Business Park (hereinafter called "Lessor) and lntermart Systems, Inc.
(hereinafter called "Lessee").
IN CONSIDERATION OF THE MUTUAL PROMISES HEREIN CONTAINED, THE PARTIES
AGREE AS FOLLOWS:
A. Premises. Lessor leases to Lessee, and Lessee leases from Lessor, upon
the terms conditions herein set forth, those certain Premises
("Premises") situated in the City of Los Gatos, County of Santa Clara,
California, as outlined in Exhibit "A" attached hereto and described
follows: +/- 5,100 square feet of a larger building commonly known
000-X Xxxxxxxx Xxx, Xxx Xxxxx, Xxxxxxxxxx, 00000. Lessee's pro-rata
share shall be +/- 22.7%.
B. Term. The term of this Lease shall be for three (3) years, commencing
on August 1, 1995 and ending on July 31, 1998, unless sooner
terminated pursuant to any provision hereof.
C. Rent. Lessee shall pay to Lessor rent for the Premises of Two
Thousand Five Hundred Fifty and 00/100 Dollars ($2,550.00) per month in
lawful money of the United States of America, subject to adjustment as
provided in Section A of this Paragraph. Rent shall be paid without
deduction or offset, prior notice, or demand, at such place as may be
designated from time to time by Lessor as follows: $2,550.00 shall be
paid upon execution of the Lease, which sum represents the
amount of the first month's rent. A deposit of $5,355.00 as a Security
Deposit shall be made by Lessee and held by Lessor pursuant
to Paragraph 5 of this Lease, and shall be paid upon execution of the
Lease. If Lessee is not in default of any provision of this Lease, this
sum, without interest thereon, shall be applied toward the rent due for
the last month of the term of this Lease or the extended term, pursuant
to any extension of the Initial term in accordance with the provisions
of this Lease. Rent shall be paid in advance on the first (1st) day of
each succeeding calendar month as follows:
08/01/95 - 01/31/96 $2,550.00/mo/NNN
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02/01/96 - 07/31/96 $3,825.00/mo/NNN
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08/01/96 - 07/31/97 $5,100.00/mo/NNN
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08/01/97 - 07/31/98 $5,355.00/mo/NNN
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Rent for any period during the term hereof which is for less than one
(1) full month shall be a pro-rata portion of the monthly rent payment.
Lessee acknowledges that late payment by Lessee to Lessor of rent or
any other payment due Lessor will cause Lessor to incur costs not
contemplated by this Lease, the exact amount of such costs being
extremely difficult and impracticable to fix. Such costs include,
without limitation, processing and accounting charges, and late charges
that may be imposed on Lessor by the terms of any encumbrance and note
secured by any encumbrance covering the Premises. Therefore, in any
installment of rent or other payment due from Lessee is not received by
Lessor within five (5) days following the date it is due and payable,
Lessee shall pay to Lessor an additional sum of ten
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percent (10%) of the overdue amount as a late charge. The parties agree
that this late charge represents a fair and reasonable estimate of the
costs that Lessor will incur by reason of late payment by Lessee.
Acceptance of any late charge shall not constitute a waiver of Lessee's
default with respect to the overdue amount, nor prevent Lessor from
exercising any of the other rights and remedies available to Lessor.
If, for any reason whatsoever, Lessor cannot deliver
possession of the Premises on the commencement date set forth in
Paragraph 2 above this Lease shall riot be void or voidable, nor shall
Lessor be liable to Lessee for any loss or damage resulting therefrom;
but in such event, Lessee shall not be obligated to pay rent until
possession of the Promises is tendered to Lessee and the commencement
and termination dates of this Lease shall be revised to conform to the
date of Lessor's delivery of possession. In the event that Lessor shall
permit Lessee to occupy the Premises prior to the commencement date of
the term, such occupancy shall be subject to all of the provisions of
this Lease, including the obligation to pay rent at the same monthly
rate as that prescribed for the first month of the Lease term.
[A. Cost of Living Increase. The rent payable in advance on the
first day of each month succeeding, 19 , shall be determined in the
following manner: the All Urban Consumer Price Index (all items) for
the San Francisco/Oakland Metropolitan Area, published by the United
States Department of Labor, Bureau of Labor Statistics ("Index"),
which is published most immediately preceding the date of, 19 , shall
be compared with the Index published for the date at the commencement
of the Lease ("Beginning Index").
If the , 19 , Index has increased over the Beginning Index,
the monthly rent payable during the , 19 , to , 19 , period shall be
set by multiplying the monthly rent paid for the period from, 19 ,
to , , by a fraction, the numerator of which is the , 19 , index and
the denominator of which is the Beginning Index. In no event shall the
monthly rent as determined by this adjustment be less than the monthly
rent immediately prior to such adjustment. On adjustment of the monthly
rent as herein provided, Lessor shall notify Lessee in writing of the
new monthly rent.]
B. All taxes, insurance premiums, Outside Area Charges, late
charges, costs and expenses which Lessee is required to pay hereunder,
together with all interest and penalties that may accrue thereon in the
event of Lessee's failure to pay such amounts, and all reasonable
damages, costs, and attorney's fees and expenses which Lessor may incur
by reason of any default of Lessee or failure on Lessee's part to
comply with the terms of this Lease, shall be deemed to be additional
rent (hereinafter, "Additional Rent"), and, in the event of non-payment
by Lessee, Lessor shall have all of the rights and remedies with
respect thereto as Lessor has for the nonpayment of monthly installment
of rent.
D. Option to Extend Term.
1. Lessee shall have the option to extend the term on all the
provisions contained in this Lease for one one-year periods
("extended term(s)") at an adjusted rental calculated as
provided in Subparagraph B below on the condition that:
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(a) Lessee has given to Lessor written notice of exercise
of that option ("option notice") at least six (6)
months before expiration of the initial term or
extended term(s), as the case may be.
(b) Lessee is not in default in the performance of any of
the terms and conditions of the Lease on the date of
giving the option notice, and Lessee is not in
default on the date that the extended term is to
commence.
2. Monthly rent for the extended term shall be $5,610.00.
3. In no event shall the monthly rent for any extended term be
less than the monthly rent paid immediately prior to such
extended term.
E. Security Deposit. Lessor acknowledges that Lessee has deposited with
Lessor a Security Deposit in the sum of $5,355.00 to secure the full
and faithful performance by Lessee of each term, covenant, and
condition of this Lease. If Lessee shall at any time fail to make any
payment or fail to keep or perform any term, covenant, or condition on
its part to be made or performed or kept under this Lease, Lessor may,
but shall not be obligated to and without waiving or releasing Lessee
from any obligation under this Lease, use, apply, or retain the whole
or any part of said Security Deposit (a) to the extent of any sum due
to Lessor; or (b) to compensate Lessor for any loss, damage, attorneys'
fees or expense sustained by Lessor due to Lessee's default. In such
event, Lessee shall, within five (5) days of written demand by Lessor,
remit to Lessor sufficient funds to restore the Security Deposit to its
original sum. No interest shall accrue on the Security Deposit. Should
Lessee comply with all the terms, covenants, and conditions of this
Lease and, at the and of the term of this Lease, leave the Promises in
the condition required by this Lease, then said Security Deposit or any
balance thereof, less any sums owing to Lessor, shall be returned to
Lessee within fifteen (15) days after the termination of this Lease and
vacancy of the Promises by Lessee. Lessor can maintain the Security
Deposit separate and apart from Lessor's general funds, or can co-
mingle the Security Deposit with the Lessor's general and other funds.
F. Use of the Premises. The Premises shall be used exclusively for the
purpose of sales, marketing, light manufacturing and distribution of
computer systems.
Lessee shall not use or permit the Premises, or any part thereof,
to be used for any purpose or purposes other than the purpose for which
the Premises are hereby leased; and no use shall be made or permitted
to be made of the Premises, nor acts done, which will increase the
existing rate of insurance upon the building in which the Promises are
located, or cause a cancellation of any insurance policy covering said
building, or any part thereof, nor shall Lessee sell or permit to be
kept, used, or sold, in or about the Premises, any article which may be
prohibited by the standard form of fire insurance policies. Lessee
shall not commit or suffer to be committed any waste upon the Premises
or any public or private nuisance or other act or thing which may
disturb the quiet enjoyment of any other tenant in the building in
which the promises are located; nor, without limiting the generality of
the foregoing, shall Lessee allow the Premises to be used for any
improper, immoral, unlawful, or objectionable purpose.
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Lessee shall not place any harmful liquids in the drainage
system of the Premises or of the building of which the Premises form a
part. No waste materials or refuse shall be dumped upon or permitted to
remain upon any part of the Premises outside of the building proper
except in trash containers placed inside exterior enclosures designated
for that purpose by Lessor, or inside the building proper where
designated by Lessor. No materials, supplies, equipment, finished 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 proper. Lessee shall comply with all the
covenants, conditions, and/or restrictions ("C.C. & R.'s") affecting
the Premises.
Lessor represents and warrants to Lessee that to the best of
its knowledge there are no Toxic or Hazardous materials present on, at
or under the Premises, which shall be deemed to include underlying land
and groundwater, at the time of Lessee's occupancy. Lessor shall
indemnify, defend and hold harmless Lessee, its partners, directors,
officers, employees, lenders, and successors against all claims,
obligations, liabilities, demands, damages, judgements, and costs,
including reasonable attorneys' fees arising from or in connection with
any prior Toxic or Hazardous materials that existed prior to Lessee's
occupancy of the Premises. Lessee in turn represents to Lessor that it
does not now and will not in the future permit the use or storage on
the Premises of Toxic or Hazardous materials, excluding, however basic
janitorial, maintenance and office supplies, and materials commonly
used in connection with Lessee's business as described in paragraph 6
hereof. For purposes of this paragraph 6 "Toxic or Hazardous Materials"
shall mean any product, substance, chemical, material or waste whose
presence, nature, quality and/or intensity or existence, use,
manufacture, disposal, transportation, spill, release or effect, either
by itself or in combination with other materials expected to be on the
leased premises, is either (i) potentially injurious to the public
health, safety or welfare, the environment, or the leased premises;
(ii) regulated or monitored by any governmental authority; or (iii) a
basis for potential liability of Lessee and Lessor to any governmental
agency or third party under any applicable statute or common law
theory. "Toxic or Hazardous Materials" shall include, but not be
limited to, hydrocarbons, petroleum, gasoline, crude oil or any
products or by-products thereof.
Lessee hereunder shall be responsible for and indemnify, and
hold Lessor and its partners, directors, officers, employees. lenders,
successors and assigns harmless from all claims, obligations,
liabilities, demands, damages, judgments and costs, including
reasonable attorneys' fees arising at any time during or in connection
with Lessee's causing or permitting any materials referred to under any
governmental provisions or regulatory scheme as "hazardous" or "toxic"
or which contain petroleum, gasoline, or other petroleum product, to be
brought upon, stored, manufactured, generated, handled, disposed, or
used on, under or about the Premises.
If, at any time during the term of this Lease, Lessor suspects
that toxic waste, spillage, or other contaminants may be present on the
Premises, Lessor may order a soils report, or its equivalent, at
Lessee's expense and Lessee shall pay such costs within fifteen (15)
days from the date of the invoice by Lessor. If any such toxic waste,
spillage, or other contamination are found upon the Premises, Lessee
shall deposit with Lessor, within fifteen (15) days of notice from
Lessor to Lessee to do so, the amount necessary to remove the
substances and remedy the problem.
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Lessee shall abide by all laws, ordinances, and statutes, as
they now exist or may hereafter be enacted by legislative bodies having
jurisdiction thereof, relating to its use and occupancy of the
Premises.
G. Improvements: Lessor will provide improvements to the Premises as
specified in Exhibit "B" attached hereto and by this reference made a
part hereof. Lessor will make reasonable efforts to complete such
improvements prior to August 1, 1995. Possession of the premises,
pursuant to Paragraph 13 of this lease, shall be deemed tendered upon
receipt of final city approvals.
H. TAXES AND ASSESSMENTS.
1. Lessee shall pay before delinquency any and all taxes, assessments,
license fees, and public charges levied, assessed, or Imposed upon or
against Lessee's fixtures, equipment, furnishings, furniture,
appliances, and personal property installed or located on or within the
Premises. Lessee shall cause said fixtures, equipment, furnishings,
furniture, appliances, and personal property to be assessed and billed
separately from the real property of Lessor. If any of Lessee's said
personal property shall be assessed with Lessor's real property, Lessee
shall pay to Lessor the taxes attributable to Lessee within ten (10)
days after receipt of a written statement from Lessor setting forth the
taxes applicable to Lessee's property.
2. All property taxes or assessments levied or assessed by or hereafter
levied or assessed by any governmental authority against the Premises
or any portion of such taxes or assessments which becomes due or
accrued during the term of this Lease shall be paid by Lessor. Lessee
shall pay to Lessor Lessee's proportionate share of such taxes or
assessments within ten (10) days of receipt of Lessor's invoice
demanding such payment, Lessee's liability hereunder shall be prorated
to reflect the commencement and termination dates of this Lease.
I. INSURANCE.
1. Indemnity. Lessee agrees to indemnify and defend Lessor against and
hold Lessor harmless from any and all demands, claims, causes of
action, judgments, obligations, or liabilities, and all reasonable
expenses incurred in investigating or resisting the same (including
reasonable attorneys' fees) on account of. or arising out of, the
condition, use, or occupancy of the Premises. This Lease is made on the
express condition that Lessor shall riot be liable for, or suffer loss
by reason of, injury to person or property, from whatever cause, in any
way connected with the condition, use, or occupancy of the Premises,
specifically including, without limitation, any liability for injury to
the person or property of Lessee, its agents, officers, employees,
licensees, and invitees.
2. Liability Insurance. Lessee shall, at its expense, obtain and
keep in force during the term of this Lease a policy of comprehensive
public liability insurance insuring Lessor and Lessee, with
cross-liability endorsements, against any liability arising out of the
condition, use, or occupancy of the Premises and all areas appurtenant
thereto, including parking areas. Such
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insurance shall be in an amount satisfactory to Lessor of not less
than one million dollars ($1,000,000) for bodily injury or death as a
result of one occurrence, and five hundred thousand dollars ($500,000)
for damage to property as a result of any one occurrence. The insurance
shall be with companies approved by Lessor, which approval Lessor
agrees not to withhold unreasonably. Prior to possession, Lessee shall
deliver to Lessor a certificate of insurance evidencing the existence
of the policy which (1) names Lessor as an additional insured, (2)
shall not be canceled or altered without thirty (30) days' prior
written notice to Lessor, (3) insures performance of the indemnity set
forth in Section A of Paragraph 9, and (4) coverage is primary and any
coverage by Lessor is in excess thereto.
3. Property Insurance. Lessor shall obtain and keep in force during the
term of this Lease a policy or policies of insurance covering loss or
damage to the Premises, in the amount of the full replacement value
thereof. Lessee shall pay to Lessor its pro-rata share of the cost of
said insurance within ten (10) days of Lessee's receipt of Lessor's
invoice demanding such payment. Lessee acknowledges that such insurance
procured by Lessor shall contain a deductible which reduces Lessee's
cost for such insurance, and, in the event of loss or damage, Lessee
shall be required to pay to Lessor the amount of such deductible.
Lessor does not currently carry earthquake insurance. However,
Lessor reserves the right to do so should it become available at
commercially reasonable rates.
4. Lessee hereby releases Lessor, and its partners, officers, agents,
employees, and servants, from any and all claims, demands, loss,
expense, or injury to the Premises or to the furnishings, fixtures,
equipment, inventory, or other property of Lessee in, about, or upon
the Promises, which is caused by or results from perils, events, or
happenings which are the subject of insurance in force at the time of
such loss.
J. Reimbursable Expenses and Utilities. Lessee shall pay for all water,
gas, light, heat, power, electricity, telephone, trash removal,
landscaping, sewer charges, and all other services, including normal
and customary property management fees, supplied to or consumed on the
Premises. In the event that any such services are billed directly to
Lessor, then Lessee shall pay Lessor for such expenses within ten (10)
days of Lessee's receipt of Lessor's invoice demanding payment.
K. Repairs and Maintenance.
1. Subject to provisions of paragraph 15, Lessor shall keep and
maintain in good order, condition and repair the structural elements of
the Promises including the roof, roof membrane, paving, floor slab,
foundation, exterior walls, landscaping, irrigation and elevators.
Lessor shall make such repairs, replacements, alterations or
improvements as Lessor deems reasonably necessary with respect to such
structural elements and Lessee shall pay to Lessor, within ten days of
Lessor's invoice to Lessee therefor, Lessee's pro-rata share of such
repairs, replacements, alterations or improvements. Notwithstanding the
foregoing, if the reason for any repair, replacement, alteration or
improvement is caused by Lessee or arises because of a
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breach of Lessee's obligations under this Lease, then Lessee shall pay
100% of the costs or expense to remedy the same.
2. Except as expressly provided in Subparagraph A above, Lessee shall,
at its sole cost, keep and maintain the entire Premises and every part
thereof, including, without limitation, the windows, window frames,
plate glass, glazing, truck doors, doors, all door hardware, interior
of the Premises, interior walls and partitions, and electrical,
plumbing, lighting, heating, and air conditioning systems in good and
sanitary order, condition, and repair. Lessee shall, at all times
during the Lease term and at his expense, have in effect a service
contract for the maintenance of the heating, ventilating, and
air-conditioning (HVAC) equipment with an HVAC repair and maintenance
contractor approved by Lessor which provides for periodic inspection
and servicing at least once every three (3) months during the term
hereof. Lessee shall further provide Lessor with a copy of such
contract and all periodic service reports.
Should Lessee fail to maintain the Premises or make repairs
required of Lessee hereunder forthwith upon notice from Lessor, Lessor,
in addition to all other remedies available hereunder or by law, and
without waiving any alternative remedies, may make the same, and in
that event, Lessee shall reimburse Lessor as additional rent for the
cost of such maintenance or repairs on the next date upon which rent
becomes due.
Lessee hereby expressly waives the provision of Subsection 1
of Section 1932, and Sections 1941 and 1942 of the Civil Code of
California and all rights to make repairs at the expense of Lessor, as
provided in Section 942 of said Civil Code.
L. Alterations and Additions. Lessee shall not make, or suffer to be made
any alterations, improvements or additions in, on, or about, or to the
Premises or any part thereof, without prior written consent of Lessor
and without a valid building permit issued by the appropriate
governmental authority. Lessor retains, at his sole option, the right
to retain a General Contractor of his own choosing to perform all
repairs, alterations, improvements, or additions in, on, about, or to
said Premises or any part thereof. As a condition to giving such
consent, Lessor may require that Lessee agree to remove any such
alterations, improvements, or additions at the termination of this
Lease, and to restore the Premises to their prior condition. Any
alteration, addition, or improvement to the Premises, shall become the
property of Lessor upon installation, and shall remain upon and be
surrendered with the Premises at the termination of this Lease. Lessor
can elect, however, within thirty (30) days before expiration of the
term or within five (5) days after termination of the term, to require
Lessee to remove any alterations, additions, or improvements that
Lessee has made to the Premises. If Lessor so elects, Lessee shall
restore the Promises to the condition designated by Lessor in its
election, before the last day of the term, or within thirty (30) days
after notice of election is given, whichever is later. Alterations and
additions which are not to be deemed as trade fixtures include heating,
lighting, electrical systems, air conditioning, partitioning,
electrical signs, carpeting, or any other installation which has become
an integral part of the Premises. In the event that Lessor consents to
Lessee's making any alterations, improvements, or additions, Lessee
shall be responsible for the timely posting of notices of
non-responsibility on Lessor's behalf, which shall remain posted until
completion of the alterations, additions, or
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improvements. Lessee's failure to post notices of non-responsibility as
required hereunder shall be a breach of this Lease.
If, during the term hereof, any alteration, addition, or
change of any sort through all or any portion of the Premises or of the
building of which the Premises form a part, is required by law,
regulation, ordinance, or order of any public agency, Lessee, at its
sole cost and expense, shall promptly make the same.
M. Acceptance of the Premises and Covenant to Surrender. By entry and
taking possession of the Premises pursuant to this Lease, Lessee
accepts the Premises as being in good and sanitary order, condition,
and repair, and accepts the Premises in their condition existing as of
date of such entry, and Lessee further accepts any tenant improvements
to be constructed by Lessor, if any, as being completed in accordance
with the plans and specifications for such improvements.
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 may have been made in,
to, or on the Premises by Lessor or Lessee, unto Lessor in good and
sanitary order, condition, and repair, excepting for such wear and tear
as would be normal for the period of the Lessee's occupancy. Lessee, on
or before the end of the term or sooner termination of this Lease,
shall remove all its personal property and trade fixtures from the
Premises, and all property not so removed shall be deemed abandoned by
Lessee. Lessee further agrees that at the end of the term or sooner
termination of this Lease, Lessee, at its sole expense, shall have the
carpets steam cleaned, the walls and columns painted, the flooring
waxed, any damaged ceiling tile replaced, the windows cleaned, the
drapes cleaned, and any damaged doors replaced.
If the Premises are not surrendered at the end of the term or
sooner termination of this Lease, Lessee shall indemnify Lessor against
loss or liability resulting from delay by Lessee in so surrendering the
Premises, including, without limitation, any claims made by any
succeeding tenant founded on such delay.
N. Default. In the event of any breach of this Lease by the Lessee, or an
abandonment of the Premises by the Lessee, 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, 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 the 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 the maximum
rate an individual is permitted by law to charge; (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 the maximum rate an
individual is permitted by law to charge; (3.) the worth at the time of
award of the amount by which the unpaid rent for the balance of
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the term after the time of award exceeds the amount 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. The worth at the time of award," as used in
(1.) and (2.) of this Paragraph, is to be computed by allowing interest
at the maximum rate an individual is permitted by law to charge. "The
worth at the time of award," as used in (3.) of this Paragraph, is to
be computed by discounting the amount at the discount rate of the
Federal Reserve Bank of San Francisco at the time of award, plus one
percent (1%).
If the Lessor chooses not to repossess the Premises, buy
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 Lease. For the purposes of this paragraph, the following do not
constitute a termination of Lessee's right to possession: (1.) acts of
maintenance or preservation, or efforts to relet the property; (2.) the
appointment of a receiver on the initiative of the Lessor to protect
his interest under this Lease.
Lessee shall be liable immediately to Lessor for all costs
Lessor incurs in reletting the Premises, including, without limitation,
brokers' commissions, expenses of remodeling the Premises required by
the reletting, and like costs. Reletting can be for a period shorter or
longer than the remaining term of this Lease. Lessee shall pay to
Lessor the rent due under this Lease on the dates the rent is due, less
the rent Lessor receives from any reletting. No act by Lessor allowed
by this Section shall terminate this Lease unless Lessor notifies
Lessee that Lessor elects to terminate this Lease. After Lessee's
default and for as long as Lessor does not terminate Lessee's right to
possession of the Premises, if Lessee obtains Lessor's consent, Lessee
shall have the right to assign of sublet its interest in this Lease,
but Lessee shall not be released from liability. Lessor's consent to a
proposed assignment or subletting shall not be unreasonably withheld.
If Lessor elects to relet the Premises as provided in this
Paragraph, rent that Lessor receives from reletting shall be applied to
the payment of: (1.) any indebtedness from Lessee to Lessor other than
rent due from Lessee; (2.) all costs, including for maintenance,
incurred by Lessor in relenting; (3.) rent due and unpaid under this
Lease. After deducting the payments referred to in this Paragraph, any
sum remaining from the rent Lessor receives from relenting shall be
held by Lessor and applied in payment of future rent as rent becomes
due under this Lease. In no event shall Lessee by entitled to any
excess rent received by Lessor. If, on the date rent is due under this
Lease, the rent received from reletting is less than the rent due on
that date, Lessee shall pay to Lessor, in addition to the remaining
rent due, all costs, including for maintenance, Lessor incurred in
reletting that remain after applying the rent received from the
reletting, as provided in this Paragraph.
Lessor, at any time after Lessee commits a default, can cure
the default at Lessee's cost. If Lessor at any time, by reason of
Lessee's default, pays any sum or does any act that requires the
payment of any sum, the sum paid by Lessor shall be due immediately
from Lessee to Lessor at the time the sum is paid, and if paid at a
later date shall bear interest at the maximum rate an individual is
permitted by law to charge form the date the sum is paid by
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Lessor until Lessor is reimbursed by Lessee. The sum, together with
interest on it, shall be additional rent.
Rent not paid when due shall bear interest at the maximum rate
an individual is permitted by law to charge from the date due until
paid.
O. Destruction. In the event the Premises are destroyed in whole or in
part from any cause, Lessor may, at its option, (1.) rebuild or restore
the Premises to their condition prior to the damage or destruction or
(2.) terminate the Lease.
If Lessor does not give Lessee notice in writing within thirty
(30) days from the destruction of the Promises of its election either
to rebuild and restore the Premises, or to terminate this Lease, Lessor
shall be deemed to have elected to rebuild or restore them, in which
event Lessor agrees, at its expense, promptly to rebuild or restore the
Premises to its condition prior to the damage or destruction. If Lessor
does not complete the rebuilding or restoration within one hundred
eighty (180) days following the date of destruction (such period of
time to be extended for delays caused by the fault or neglect of Lessee
of because of acts of God, acts of public agencies, labor disputes,
strikes, fires, freight embargoes, rainy or stormy weather, inability
to obtain materials, supplies or fuels, acts of contractors or
subcontractors, or delay of the contractors or subcontractors due to
such causes or other contingencies beyond control of Lessor), then
Lessee shall have the right to terminate this Lease by giving fifteen
(15)days prior written notice to Lessor. Lessor's obligation to rebuild
or restore shall not include restoration of Lessee's trade fixtures,
equipment, merchandise, or any improvements, alterations, or additions
made by Lessee to the Premises.
Unless this Lease is terminated pursuant to the foregoing
provisions, this Lease shall remain in full force and effect. Lessee
hereby expressly waives the provisions of Section 1932, Subdivision 2,
and Section 1933, Subdivision 4, of the California Civil Code.
In the event that the building in which the Premises are
situated is damaged or destroyed to the extent of not less than
thirty-three and one-third percent (33 1/3%) of the replacement cost
thereof, Lessor may elect to terminate this Lease, whether the Premises
be injured or not.
P. Condemnation. If any part of the Premises shall be taken for any
public or quasi-public use, under any statute of 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 taking such bears to the value of the entire
Premises prior to such taking Lessor shall have the option to terminate
this Lease in the event that such taking causes a reduction in rent
payable hereunder by fifty percent (50%) or more. If all of the
Premises or such part thereof be taken so that there does not remain a
portion susceptible for occupation hereunder, as reasonably necessary
for Lessee's conduct of its business as contemplated in this Lease,
this Lease shall thereupon terminate. If a part of all of the Premises
be taken, all compensation awarded upon such taking shall go to the
Lessor, and the Lessee shall have no claim thereto, and the Lessee
hereby irrevocably assigns and transfers to the Lessor any right to
compensation or damages
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to which the Lessee may become entitled during the term hereof by
reason of the purchase or condemnation of all or a part of the
Premises, except that Lessee shall have the right to recover its share
of any award or consideration for (1.) moving expenses; (2.) loss or
damage to Lessee's trade fixtures, furnishings, equipment, and other
personal property; and (3.) business goodwill. Each party waives the
provisions of the Code of Civil Procedure, Section 1265.130, allowing
either party to petition the Superior Court to terminate this Lease in
the event of a partial taking of the Premises.
Q. Free from Liens. Lessee shall (1.) pay for all labor and services
performed for materials used by or furnished to Lessee, or any
contractor employed by Lessee with respect to the Premises, and (2.)
indemnity, defend, and hold Lessor and the Premises harmless and free
from any liens, claims, demands, encumbrances, or judgments created or
suffered by reason of any labor or services performed for materials
used by or furnished to Lessee or any contractor employed by Lessee
with respect to the Premises, and (3.) give notice to Lessor in writing
five (5) days prior to employing any laborer or contractor to perform
services related, or receiving materials for use upon the Premises, and
(4.) shall post, on behalf of Lessor, a notice of non-responsibility in
accordance with the statutory requirements of the California Civil
Code, Section 3904, or any amendment thereof. In the event an
improvement bond with a public agency in connection with the above is
required to be posted, Lessee agrees to include Lessor as an additional
obligee.
R. Compliance with Laws. Lessee shall, at its own cost, comply with and
observe all requirements of all municipal, county, state, and federal
authority now in force, or which may hereafter be in force, pertaining
to the use and occupancy of the Premises.
S. Subordination. Lessee agrees that this Lease shall, at the option of
Lessor, be subjected and subordinated to any mortgage, dead of trust,
or other instrument of security, which has been or shall be placed on
the land and building, or land or building of which the Premises form a
part, and this subordination is hereby made effective without any
further act of Lessee or Lessor. The Lessee shall, at any time
hereinafter, on demand, execute any instruments, releases, or other
documents that may be required by any mortgagee, mortgagor, trustor, or
beneficiary under any dead of trust, for the purpose of subjecting or
subordinating this Lease to the lion of any such mortgage, deed of
trust, or other instrument of security. If Lessee fails to execute and
deliver any such documents or instruments, Lessee irrevocably
constitutes and appoints Lessor as Lessee's special attorney-in-fact to
execute and deliver any such documents or instruments.
T. Abandonment. Lessee shall not vacate or abandon the Premises at any
time during the term; and if Lessee shall abandon, vacate, or surrender
said Premises, or be dispossessed by process of law, or otherwise, any
personal property belonging to Lessee and left on the Promises shall be
deemed to be abandoned, at the option of Lessor, except such property
as may be mortgaged to Lessor; provided, however, that Lessee shall not
be deemed to have abandoned or vacated the Premises so long as Lessee
continues to pay all rents as and when due, and otherwise performs
pursuant to the terms and conditions of this Lease.
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U. Assignment and Subletting. Lessee's interest in this Lease is no
assignable, by operation of law or otherwise, nor shall Lessee have the
right to sublet the Premises, transfer any interest of Lessee's
therein, or permit any use of the Premises by another party, without
the prior written consent of Lessor to such assignment, subletting, or
transfer of use.
If Lessee is a partnership, a withdrawal or change, voluntary,
involuntary, or by operation of law, of any partner (s) owning fifty
percent (50%) or more of the partnership, of the dissolution of the
partnership, shall be deemed as a voluntary assignment.
If Lessee consists of more than one person, a purported
assignment, voluntary, involuntary, or by operation of law, from one
person to the other or from a majority of persons to the others, shall
be deemed a voluntary assignment.
If Lessee is a corporation, any dissolution, merger,
consolidation, or other reorganization of Lessee, or the sale or other
transfer of a controlling percentage of the capital stock of Lessee, or
sale of at least fifty-one percent (51%) of the value of the assets of
Lessee, shall be deemed a voluntary assignment. The phrase "controlling
percentage" means the ownership of, and the right to vote, stock
possessing at least fifty-one percent (51 %) of the total combined
voting power of all classes of Lessee's capital stock issued,
outstanding, and entitled to vote for the election of directors. This
Paragraph shall not apply to corporations the stock of which is traded
through an exchange or over the counter.
In the event of any subletting or transfer which is consented
to, or not consented to, by Lessor, a subtenant or transferee agrees to
pay monies or other consideration, whether by increased rent or
otherwise, in excess of or in addition to those provided for herein,
then all of such excess or additional monies or other consideration
shall be paid solely to Lessor, and this shall be one of the conditions
to obtaining Lessor's consent.
Lessee immediately and irrevocably assigns to Lessor, as
security for Lessee's obligations under this Lease, all rent from any
subletting of all or a part of the Premises as permitted by this Lease,
and Lessor, as assignee and as attorney-in-fact for Lessee, or a
receiver for Lessee appointed on Lessor's application, may collect such
rent and apply it toward Lessee's obligations under this Lease; except
that, until the occurrence of an act of default by the Lessee, Lessee
shall have the right to collect such rent.
A consent to one assignment, subletting, occupation, or use by
another party shall not be deemed to be a consent to any subsequent
assignment, subletting, occupation, or use by another party. Any
assignment or subletting without such consent shall be void and shall,
at the option of the Lessor, terminate this Lease. Lessor's waiver or
consent to any assignment or subletting hereunder shall not relieve
Lessee from any obligation under this Lease unless the consent shall so
provide. If Lessee requests Lessor to consent to a proposed assignment
or subletting, Lessee shall pay to Lessor, whether or not consent is
ultimately given, Lessor's reasonable attorneys' fees incurred in
conjunction with each such request.
V. Parking Charges. Lessee agrees to pay upon demand, based on its
percent of occupancy of the entire Premises, its pro-rata share of any
parking charges, surcharges, or any other cost hereafter levied or
assessed by local, state, or federal governmental agencies in
connection with the use of the parking facilities serving the Premises,
including, without limitation, parking surcharge imposed by or under
the authority of the Federal Environmental Protection Agency.
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W. Insolvency or Bankruptcy. Either (1.) the appointment of a receiver to
take possession of all or substantially all of the assets of Lessee, or
(2.) a general assignment by Lessee for the benefit of creditors, or
(3.) any action taken or suffered by Lessee under any insolvency or
bankruptcy act shall constitute a breach of this Lease by Lessee. Upon
the happening of any such event, this Lease shall terminate ten (10)
days after written notice of termination from Lessor to Lessee. This
section is to be applied consistent with the applicable state and
federal law in effect at the time such event occurs.
X. Lessor Loan or Sale. Lessee agrees promptly following request by
Lessor to (1.) execute and deliver to Lessor any documents, including
estoppel certificates presented to Lessee by Lessor, (a.) certifying
that this Lease is unmodified and in full force and effect, or, if
modified, stating the nature of such modification and certifying that
this Lease, as so modified, is in full force and effect and the date to
which the rent and other charges are paid in advance, it any, and (b.)
acknowledging that there are not, to Lessee's knowledge, any uncured
defaults on the part of Lessor hereunder, and (c.) evidencing the
status of the Lease as may be required either by a lender making a loan
to Lessor, to be secured by deed of trust or mortgage covering the
Premises, or a purchaser of the Premises from Lessor, and (2.) to
deliver to Lessor the current financial statements of Lessee with an
opinion of a certified public accountant, including a balance sheet and
profit and loss statement, for the current fiscal year and the two
immediately prior fiscal years, all prepared in accordance with
Generally Accepted Accounting Principles consistently applied. Lessee's
failure to deliver an estoppel certificate within three (3) days
following such request shall constitute a default under this Lease and
shall be conclusive upon Lessee that this Lease is in full force and
effect and has not been modified except as may be represented by
Lessor. If Lessee fails to deliver the estoppel certificates within the
three (3) days, Lessee irrevocably constitutes and appoints Lessor as
its special attorney-in-fact to execute and deliver the certificate to
any third party.
Y. Surrender of Lease. The voluntary or other surrender of this Lease by
Lessee, or a mutual cancellation thereof, shall not work a merger nor
relieve Lessee of any of Lessee's obligations under this Lease, and
shall, at the option of Lessor, terminate all or any existing Subleases
or Subtenancies, or may, at the option of Lessor, operate as an
assignment to him of any or all such Subleases or Subtenancies.
Z. Attorneys' Fees. If, for any reason, any suit be initiated to enforce
any provision of this Lease, the prevailing party shall be entitled to
legal costs, expert witness expenses, and reasonable attorneys' fees,
as fixed by the court.
AA. Notices. 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, arid addressed to Lessee at the said Premises, whether
or not Lessee has departed from, abandoned, or vacated the Premises.
Any notice or document required or permitted by this Lease to be given
Lessor shall be addressed to Lessor at the address set forth below, or
at such other address as ft may have theretofore specified by notice
delivered in accordance herewith:
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LESSOR: Los Gatos Business Park
000 Xxxxx Xxxx, Xxxxx 00
Xxxx Xxxx, Xxxxxxxxxx 00000
LESSEE: Intermart Systems, Inc.
000-X Xxxxxxxx Xxx
Xxx Xxxxx, XX 00000
BB. Transfer of Security. If any security be given by Lessee to secure the
faithful performance of all or any of the covenants of this Lease on
the part of Lessee, Lessor may transfer and/or deliver the security, as
such, to the purchaser of the reversion, in the event that the
reversion be sold, and thereupon Lessor shall be discharged from any
further liability in reference thereto, upon the assumption by such
transferee of lessor's obligations under this Lease.
CC. Waiver. The waiver by Lessor or Lessee of any breach of any term,
covenant, or condition, herein contained shall not be deemed to be a
waiver of such term, covenant, or condition, or any subsequent breach
of the same or any other term, covenant or condition herein contained.
The subsequent acceptance of rent hereunder by lessor shall not be
deemed to be a waiver of any preceding breach by Lessee of any term,
covenant, or condition of this Lease, other than the failure of Lessee
to pay the particular rental so accepted, regardless of Lessor's
knowledge of such preceding breach at the time of acceptance of such
rent.
DD. Holding Over. Any holding over after the expiration of the term or any
extension thereof, with the consent of lessor, shall be construed to be
a tenancy from month-to-month, at a rental of one and one-half (1 1/2)
times the previous month's rental rate per month, and shall otherwise
be on the terms and conditions herein specified, so far as applicable.
EE. Covenants, Conditions, and Restrictions. Attached hereto, marked
Exhibit "C" and by this reference incorporated as if set out in full,
are Covenants, Conditions, and Restrictions pertaining to Los Gatos
Business Park. As a condition to t his Lease, Lessee agrees to abide by
all of said Covenants, Conditions, and Restrictions. Moreover, such
reasonable rules and regulations as may be hereafter adopted by Lessor
for the safety, care, and cleanliness of the Premises and the
preservation of good order thereon, are hereby expressly made a part
hereof, and Lessee agrees to obey all such rules and regulations.
FF. Limitation on Lessor's Liability. If Lessor is in default of this
Lease, and, as a consequence, Lessee recovers a money judgment against
Lessor, the judgment shall be satisfied only out of the proceeds of
sale received on execution of the judgment and levy against the right,
title, and interest of Lessor in the Promises, or in the building,
other improvements, and land of which the Premises are part, and out of
rent or other income from such real property receivable by Lessor or
out of the consideration received by Lessor from the sale or other
disposition of all or any part of Lessor's right, title, and interest
in the Premises or in the building, other improvements, and land of
which the Premises are part. Neither Lessor nor
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any of the partners comprising the partnership designated as Lessor
shall be personally liable for any deficiency.
GG. Miscellaneous.
1. Time is of the essence of this Lease, and of each and all of
its provisions.
2. The term "building" shall mean the building in which the
Premises are situated.
3. If the building is leased to more than one tenant, then each
such tenant, its agents, officers, employees, and invitees
shall have the non-exclusive right (in conjunction with the
use of the part of the building leased to such Tenant) to make
reasonable use of any driveways, sidewalks, and parking areas
located on the parcel of land on which the building is
situated, except such parking areas as may from time to time
be leased for exclusive use by other Tenant(s).
4. Lessee's such reasonable use of parking areas shall not exceed
that percent of the total parking areas which is equal to the
ratio which floor space of the Premises bears to floor space
of the building.
5. The term "assign" shall include the term "transfer."
6. The invalidity or unenforceabilfty of any provision of this
Lease shall not affect the validity or enforceability of the
remainder of this Lease.
7. All parties hereto have equally participated in the
preparation of this Lease.
8. The headings and titles to the Paragraphs of this Lease are
not a part of this Lease and shall have no effect upon the
construction or interpretation of any part thereof.
9. Lessor has made no representation(s) whatsoever to Lessee
(express or implied) except as may be expressly stated in
writing in this Lease instrument.
10. 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 agreement in writing,
signed by all of the parties hereto or their respective
successors in interest.
11. It is understood and agreed that the remedies herein given to
Lessor shall be cumulative, and the exercise of any one remedy
by Lessor shall riot be to the exclusion of any other remedy.
12. The covenants and conditions herein contained shall, subject
to the provisions as to assignment, apply to and bind the
heirs, successors, executors, and administrators, and
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assigns of all the parties hereto; and all of the parties
hereto shall jointly and severally be liable hereunder.
13. This Lease has been negotiated by the parties hereto and the
language hereof shall not be construed for or against either
party.
14. All exhibits to which reference is made are deemed
incorporated into this Lease, whether covenants or conditions,
on the part of Lessee shall be deemed to be both covenants and
conditions.
HH. First Right of Refusal. Lessee is granted first right of refusal to
lease additional space within the building as it becomes available
(subject to any other existing first rights of refusal) as outlined on
Exhibit A. Lessor shall notify Lessee of space available and Lessee
shall have three (3) business days to provide Lessor with written
acceptance. No response shall be deemed a rejection of the offer of
space.
IN WITNESS WHEREOF, Lessor and Lessee have executed this Lease on the date first
above-written.
LESSOR: LESSEE:
Los Gatos Business Park Intermart Systems, Inc.
BY: s\ BY: s\
------------------------------ ---------------------------------
DATE: 7/18/95 DATE: July 14, 1995
----------------------------- ------------------------------
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EXHIBIT A
OULINE OF PREMISES
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SUBLEASE AGREEMENT
THIS SUBLEASE AGREEMENT ("Sublease") is entered into this 17th day of
December, 1996 by and between INTERMART SYSTEMS, INC. ("SUBLESSOR"), and SCM
MICROSYSTEMS, INC. ("SUBLESSEE").
Recitals:
II. Los Gatos Business Park ("MASTER LESSOR"), and Sublessor entered
into that certain Lease Agreement, dated as of July 6, 1995 (the "MASTER
LEASE"), respecting those premises (the "MASTER PREMISES") commonly known as
000-X Xxxxxxxx Xxx, Xxx Xxxxx, Xxxxxxxxxx 00000, as more particularly described
in the Master Lease. A copy of the Master Lease is attached to this Sublease as
EXHIBIT A.
JJ. Sublessor desires to sublet to Sublessee, and Sublessee desires to
sublet from Sublessor, a portion of the Master Premises consisting of
approximately 2,860 square feet of rentable area, as more particularly shown on
Exhibit B attached hereto (the "SUBLEASE PREMISES"), on the terms and conditions
set forth in this Sublease. Sublessor shall continue to occupy the remaining
portion of the Master Premises under the terms of the Master Lease consisting of
approximately 2,240 square feet (the "Remaining Premises").
NOW, THEREFORE, in consideration of the mutual covenants contained in
this Sublease and other good and valuable consideration, the receipt and
sufficiency of which are acknowledged, the parties agree as follows:
Agreement:
1. Sublease. Sublessor hereby subleases to Sublessee, and
Sublessee hereby subleases from Sublessor, the Sublease Premises on the terms
and conditions hereinafter set forth.
2. Term. The term of this Sublease shall commence on July 15,
1996 (the "COMMENCEMENT DATE") and shall expire on July 31, 1998 (the "SUBLEASE
TERM"), unless sooner terminated under the provisions of this Sublease.
3. Monthly Base Rent.
(a) Commencing on the Commencement Date and continuing
throughout the Sublease Term, Sublessee shall pay to Sublessor, in advance on
the first day of each calendar month, as monthly rent ("MONTHLY BASE RENT") the
sum of $ 4,147.00. Monthly Base Rent shall be prorated for any partial month
during the Sublease Term.
(b) Sublessee shall not be obligated to pay any Additional
Rent as defined in the Master Lease or for any utilities or expenses set forth
in Paragraph 10 of the Master Lease which are attributable to the Sublease
Premises.
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(c) Sublessee shall pay to Sublessor a deposit of $4,147.00,
such amount to be held as a prepayment of the monthly rent for the last month of
the Lease Term.
4. Place of Payment of Rent. All Monthly Base Rent and all other
amounts payable to Sublessor under this Sublease shall be paid to Sublessor when
due, without prior notice or demand and without deduction or offset, in lawful
money of the United States of America in cash or by check payable to Intermart
Systems, Inc., 000-X Xxxxxxxx Xxx, Xxx Xxxxx, XX 00000, Attention: Xxxxx X.
Xxxxx, or to such other address as Sublessor shall designate in writing.
5. Use. The Sublease Premises shall be used and occupied only
for those purposes set forth in the Master Lease, and for no other purpose.
6. Incorporation and Modification of Master Lease Terms.
(a) Except as expressly set forth below in Paragraph 6(b), the
Master Lease is incorporated herein in its entirety by this reference. For the
purpose of this Sublease, all references in the Master Lease to "Lessor" shall
be deemed to mean Sublessor, all references to "Lessee" shall be deemed to mean
Sublessee and all references to "Lease" shall mean this Sublease.
(b) The following provisions of the Master Lease are
specifically excluded from this Sublease: Paragraphs 1, 2, 3, 5, 7, 8.B., 10,
22, 27, 28, and 32 of the Master Lease.
(c) The waivers of rights of recovery and subrogation set
forth in Paragraph 9.D. of the Master Lease shall be deemed to be a three party
agreement binding among and inuring to the benefit of Sublessor, Sublessee and
Master Lessor.
(d) Notwithstanding anything to the contrary in Paragraph 8.A.
of the Master Lease, Sublessee shall be responsible only for payment of taxes
assessed on Sublessee's personal property, and for no other taxes levied in
connection with the Sublease Premises or the Master Premises.
(e) Notwithstanding anything to the contrary in Paragraph 12
of the Master Lease, Sublessee shall not be required to remove the following
alterations and improvements at the expiration of the Sublease Term: (i) the
built-in shelving on the Sublease Premises originally installed by Sublessor,
and (ii) the dividing walls to be erected by Sublessor between the Sublease
Premises and the Remaining Premises.
7. Telephone Console. Sublessee shall provide Sublessor with
reasonable access to the telephone console located on the Sublease Premises.
Sublessor shall have the right to enter onto the Sublease Premises for the
purposes of accessing the telephone console at reasonable times and upon
reasonable notice to Sublessee.
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8. Indemnity.
(a) Sublessee hereby agrees to indemnify and hold harmless
Sublessor from and against any and all claims, liabilities, losses, damages and
expenses (including reasonable attorneys' fees) incurred by Sublessor arising
out of, from or in connection with (i) the use or occupancy of the Sublease
Premises by Sublessee. (ii) any breach or default by Sublessee under this
Sublease, or (iii) the failure of Sublessee to perform any obligation under the
terms and provisions of the Master Lease assumed by Sublessee hereunder or
required to be performed by Sublessee as provided herein, from and after the
Commencement Date of this Sublease.
(b) Sublessor hereby agrees to indemnify and hold harmless
Sublessee from and against any and all claims, liabilities, losses, damages and
expenses (including reasonable attorneys' fees) incurred by Sublessee arising
out of, from or in connection with (i) the use or occupancy of the Remaining
Premises by Sublessor, (ii) Sublessor's breach or default of any provision of
this Sublease or any provisions of the Master Lease not assumed by Sublessee
hereunder, or (iii) acts or omissions of Sublessor under the Master Lease in
connection with the Premises prior to the Commencement Date of this Sublease.
9. Notices. All notices, demands or requests which may be or are
required to be given under this Sublease shall be in writing and shall be given
by personal delivery, or by certified or registered mail, return receipt
requested, postage prepaid, or by Federal Express or similar overnight courier,
charges prepaid, and addressed as follows:
Sublessor: Sublessee:
INTERMART SYSTEMS, INC. SCM MICROSYSTEMS, INC.
Xxxxx X. Xxxxx, General Manager Xxxxxxx X. Xxxxx, Controller
000-X Xxxxxxxx Xxx 000 Xxxxxxxx Xxx
Xxx Xxxxx, XX 00000 Xxx Xxxxx, XX 00000
Fax No.: 408/000-0000 Fax No.: 408/000-0000
The addresses of the parties may be changed from time to time by notice given in
the manner set forth in this Paragraph 9. Each notice, request, demand, advice
or designation given under this Sublease shall be deemed properly given only
upon actual receipt or refusal of delivery.
10. Termination of Master Lease. This Sublease is, and shall at all
times remain, subordinate to the Master Lease. In the event the Master Lease is
terminated for any reason, then, on the date of such termination, this Sublease
shall automatically terminate and be of no further force or effect. If the
termination of the Master Lease (and resulting termination of this Sublease)
occurs through no fault of Sublessor, Sublessor shall have no liability to
Sublessee for the resultant termination of this Sublease.
11. Consent of the Master Lessor. Under Paragraph 21 of the Master
Lease, a sublease of the Premises requires the written consent of the Master
Lessor. The parties to this Sublease hereby agree that such consent has been
given in the form of a letter attached hereto as Exhibit C.
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12. Brokers. Each party represents to the other that no brokerage
commission or finder's fee has been incurred in connection with this
transaction, and each party shall indemnify the other against any such
commission or fee which may be alleged to have been incurred by it in connection
with this Sublease.
13. Entire Agreement. This Sublease contains all of the terms,
covenants and conditions agreed to by Sublessor and Sublessee and may not be
modified orally or in any manner other than by an agreement in writing signed by
all the parties to this Sublease or their respective successors in interest.
14. Exhibits. All exhibits attached hereto are incorporated in
this Sublease, except as expressly excluded herein.
15. Counterparts. This Sublease may be executed in any number of
counterparts, each of which shall be deemed an original, and when taken together
they shall constitute one and the same sublease.
IN WITNESS WHEREOF, the parties have caused this instrument to be
executed by their duly authorized representatives as of the day and year first
above written.
SUBLESSOR: SUBLESSEE:
INTERMART SYSTEMS, INC. SCM MICROSYSTEMS, INC.
By: By: s/ Xxxxxxx X. Xxxxx
Its: General Manager Its: Controller
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INTERMART SYSTEMS
000X Xxxxxxxx Xxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Tel: 000 000 0000 Fax: 000 000 0000 xxxx@xxxxxxxxxxxx.xxx
Xxxxxxxx Xxxxxxxxxx
Los Gatos Business Park
000 Xxxxx Xxxx, Xxx. 00
Xxxx Xxxx, XX 00000
tel: 000 000 0000 fax: 000 000 0000
July 30, 1996
Dear Xxxxxxxx,
Please be informed that we are subleasing office space to SCM, and that we give
Los Gatos Business Park Permission to enter the office and do renovation,
construction, office modification, or other similar activities as needed for
SCM. Please let use know if there is anything you need from us and we would be
happy to cooperate. Should you have any questions you may either contact myself
or Xxxxx Xxxxx.
Sincerely yours,
s\ Xxxxxx Xxxxx Xxxxxxx
Xxxxx Xxxxxxx
SM: bt
23
xxxx://xxx.xxxxxxxxxxxx.xxx/
LOS GATOS BUSINESS PARK
July 31, 1996
Mr. Xxxxx Xxxxxxx
INTERMART SYSTEMS
000X Xxxxxxxx Xxx
Xxx Xxxxx, XX 00000
Re: Sublease
Dear Xxxxx:
By way of this letter, Los Gatos Business Park is consenting to your request to
sublease a portion of your space (as outlined on the attached plan) to SCM
Microsystems. The attached plan detailing the improvements to be done to your
space for the benefit and at the cost of SCM Microsystems is also approved.
If you have any questions or concerns, please do not hesitate to call.
Sincerely,
s\ Xxxxxxxx Xxxxxxxxxx
Xxxxxxxx Xxxxxxxxxx
Property Manager
cc: Xxxxxx Xxxxx
Xxxx Xxxxx, SCM Microsystems
Xxxx Xxxxxxxxx, SCM Microsystems
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SUBLEASE MAP
25
July 16, 1996
Mr. Xxxx Xxxxxxxxx
SCM Microsystems
000 Xxxxxxxx Xxx
Xxx Xxxxx, XX 00000
Re: Demise Suite D into Two Units
Revised to include light switching & T-Star relocation
Dear Xxxx:
H & S is pleased to submit an estimate for installing two new walls @ 000
Xxxxxxxx, Xxxxx X per your request. The costs are as follows:
A. Costs:
Frame, sht rock, & texture 2 openings, 104 sf............................$ 750.00
Paint (2 coats min.) 104 sf.............................................. 270.00
Rubber Base 24 lf........................................................ 90.00
Electrical............................................................... 650.00
HVAC..................................................................... 250.00
Supervision.............................................................. 225.00
Clean-up................................................................. 90.00
OH&P..................................................................... 233.00
TOTAL AMOUNT THIS ITEM...................................................$ 2,558.00
Add (1) Door w/custom keyed lock (no closer).............................$ 710.00
B. Schedule Impact:
It will take approximately 8 working days to complete this work.
C. Status of work:
The work described above is on hold pending receipt of your written
approval of the costs as outlined above.
D. Qualifications:
o All work has been estimated to be performed during regular working
hours
26
o All air-conditioning will be controlled by front tenant. There is
no means to separate air-conditioning between spaces.
o Lighting will be modified to provide separate switching
o No electrical receptacles will be added
o This quote does not include means to provide access from current
SCM space
o No adjustments will be made to acoustical ceiling tiles other
than to remove and replace as necessary.
E. Action Required:
To signify your acceptance of the cost and schedule impact as detailed
above, please sign at the line provided and return to H&S's office. Upon receipt
of your acceptance, we will make arrangements with our subcontractors as to when
work can begin and we will notify you of a start date.
Approved: Date: 7/23/96
------------------------------------------- --------------
Please initial here if you want the door installed
----------------------
Sincerely,
H & S, Inc.
s\ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
Project Manager
27
MAP
28
M E M O R A N D U M
DATE: April 5, 1997
TO: Xxxxxxxx Xxxxxxxxxx
FROM: Xxx Xxxxxxx
RE: SCM MICROSYSTEMS & INTERMART - SUBLEASE INFORMATION
JOB #96-097
--------------------------------------------------------------------------------
As discussed on Friday last week, I have reviewed my document regarding
the small project we did for SCM Microsystems. The original project was
requested by SCM with the intention to increase their amount of usable square
footage via an agreement with Intermart to sublease a portion of Intermart's
leased space. I built two walls to physically divide the intermart space into
two space into two separate areas.
My original calculation as to the division of the two spaces was as
follows:
Intermart: 2,240 Sq. ft.
SCM: 3,038 Sq. ft.
5,278 Sq. ft.
Since your inquiry regarding the sublease, I have reviewed the space
arrangements and need to amend my original calculation. The correct proportions
are as follows:
INTERMART: 2,240 Sq. ft.
SCM: 2,860 Sq. ft.
5,100 Sq. ft.
Reason for difference:
My original calculation included the electrical room located at the
rear of the Intermart space, (that area to become SCM). The electrical room is
approximately 178 Sq. ft.
Note:
Intermart's current lease does not include the square footage for the
electrical room.
Let me know if you need anything else.
Xxx
