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EXHIBIT 10.12
LEASE
THIS LEASE is made on the 29th day of September 1994, by and between Los
Gatos Business Park (hereinafter called "Lessor") and SCM Microsystems, Inc., a
Delaware corporation (hereinafter called "Lessee").
IN CONSIDERATION OF THE MUTUAL PROMISES HEREIN CONTAINED, THE PARTIES
AGREE AS FOLLOWS:
1. Premises. Lessor leases to Lessee, and Lessee leases from Lessor,
upon the terms and 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 as follows:
Approximately 5,311 square feet of a larger building located at 000-X Xxxxxxxx
Xxx, Xxx Xxxxx, Xxxxxxxxxx.
2. Term. The term of this Lease shall be for Four Years commencing on
November 1, 1994 and ending on October 31, 1998, unless sooner terminated
pursuant to any provision hereof.
SEE ADDENDUM #1
3. Rent. Lessee shall pay to Lessor rent for the Premises of three
thousand six hundred seventy-five Dollars ($3,675.00) 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: $3,675.00 shall be paid upon execution of the Lease, which sum
represents the amount of the first month's rent. A deposit of $5,577.00 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 or is attempting to cure an existing 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. $3,675.00 shall be paid on December 1, 1994, and in
advance on the first (1st) day of each succeeding calendar month until August 1,
1995. 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, if 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 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.
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SEE ADDENDUM #2
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 not 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 Premises 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.
SEE ADDENDUM #3
[ A. Cost of Living Increase. The rent payable in advance on the
first day of each month succeeding , 199 , 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 , 199 , shall be compared with the Index
published for the date at the commencement of the Lease ("Beginning Index").]
[ If the __________, 199_, Index has increased over the Beginning Index,
the monthly rent payable during the _______, 199_, to _________, 199_, period
shall be set by multiplying the monthly rent paid for the period from
___________, 199_, to ___________, 199_, by a fraction, the numerator of which
is the , 199 , 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 non-payment of monthly installment of
rent.
4. Option to Extend Term.
A. Lessee shall have the option to extend the term on all the
provisions contained in this Lease for two one-year periods ("extended term(s)")
at an adjusted rental calculated as provided in Subparagraph B below on the
condition that:
(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.
NOTE:
Language indicated as being shown by strike out in the typeset document, or
manually struck-through, is enclosed in brackets " [ " and " ] " in the
electronic format.
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(b) Lessee is not in default, or is diligently pursuing a
cure for 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, or
is diligently pursuing a cure for default on the date that the extended term is
to commence.
[ B. Monthly rent for the extended term shall be set in the
following manner: the rent payable in advance for any of each option period of
each month succeeding _________, 199_, to _________, 199_, 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 , 199 , shall be compared to the Index
published at the commencement of the Lease ("Beginning Index").]
[ If the , 199 Index has increased over the Beginning Index, the
monthly rent payable during the __________, 199_, to __________, 199_, period
shall be set by multiplying the monthly rent paid for the period from
__________, 199_, to _________, 199_, by a fraction, the numerator of which is ,
199 , Index and the denominator of which is the Beginning Index. A new Lease for
the term of such extension shall be unnecessary, this Lease constituting a
present demise for both the original and any extended term. Lessor shall notify
Lessee in writing of the new monthly rent during the extended term.] Monthly
rent for the option periods shall be at 95% of the then prevailing market rent
for similar buildings in the Los Gatos area.
C. In no event shall the monthly rent for any extended term be
less than the monthly rent paid immediately prior to such extended term.
5. Security Deposit. Lessor acknowledges that Lessee has deposited with
Lessor a Security Deposit in the sum of $5,577.00 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 Losses 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 end of the term of
this Lease, leave the Premises 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 Premises by Lessee. Lessor can maintain the
Security Deposit separate and apart from Lessor's general funds, or can
commingle the Security Deposit with the Lessor's general and other funds.
NOTE:
Language indicated as being shown by strike out in the typeset document, or
manually struck-through, is enclosed in brackets " [ " and " ] " in the
electronic format.
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6. Use of the Premises. The Premises shall be used exclusively for the
purpose of Sales, marketing and distribution of computer-related products.
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 Premises 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 premises 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.
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.
SEE ADDENDUM #4
[Should, at any time during the term of this Lease, or for a period of
five (5) years after the termination or expiration of this Lease, there be
charges or findings of toxic waste, spillage, or other contaminants found by a
governmental agency to be hazardous and requiring removal or remedial work of
the same, Lessee hereunder shall be assumed responsible for, and hold Lessor
harmless from all claims, obligations, liabilities, and costs, including
reasonable attorneys' fees, for the removal, remedial work, or other action
required by the governmental agency so prescribing said action, or any other
agency having jurisdiction, unless Lessee can demonstrate that such toxic waste,
spillage, or other contaminants did not occur as a result of Lessee's operations
while occupying 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 provided that said report determines that Lessee was
cause of contamination. If any such toxic waste, spillage, or other contaminants
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.
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.
NOTE:
Language indicated as being shown by strike out in the typeset document, or
manually struck-through, is enclosed in brackets " [ " and " ] " in the
electronic format.
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SEE ADDENDUM #5
7. Improvements. Lessor will provide improvements at Lessor's sole cost
and expense, subject to Paragraph 5 of Addendum I, to the Premises as specified
in Exhibit "B" attached hereto and by this reference made apart hereof. Lessor
will make reasonable efforts to complete such improvements prior to November 1,
1994. Possession of the premises, pursuant to Paragraph 13 of this lease, shall
be deemed tendered upon [receipt of final city approvals] substantial completion
of tenant improvements.
8. Taxes and Assessments.
A. 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 Losses within ten
(10) days after receipt of a written statement from Lessor setting forth the
taxes applicable to Lessee's property.
B. 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.
9. Insurance.
A. 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 not 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. Lessee shall not be responsible for the negligent or
willful misconduct of Lessor, its agents, officers, employees, licensees and
invitees.
B. 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 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
NOTE:
Language indicated as being shown by strike out in the typeset document, or
manually struck-through, is enclosed in brackets " [ " and " ] " in the
electronic format.
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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.
C. Property Insurance. Lessor shall obtain and keep in force
during the term of this Lease a policy or policies of insurance (including
earthquake(1) and flood coverage) 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 agrees
to cap the deductible at $1,000 per occurrence.
D. 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 Premises, 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.
10. 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, which shall not exceed 3% of net rents, 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.
SEE ADDENDUM #6
11. Repairs and Maintenance.
A. Subject to provisions of paragraph 15, Lessor shall keep and
maintain the roof, paving, structural elements, landscaping, irrigation, and
exterior walls of the building in which the Premises are located in good order
and repair. Lessee shall reimburse Lessor for its proportionate share of said
expenses, except for roof structure and other structural elements which shall be
at Lessor's sole cost and expense, within ten (10) days of Lessee's receipt of
Lessor's invoice demanding payment. If, however, any repairs or maintenance is
required because of an act or omission of
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(1)Lessor does not currently carry earthquake insurance. However, Lessor
reserves the right to do so should it become available at commercially
reasonable rates. Lessee's obligation to pay premiums for earthquake insurance
shall be limited to 150% of the cost of coverage provided for in this Section
9C.
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Lessee or its agents, employees, or invitees, Lessee shall pay to Lessor upon
demand one hundred percent (100%) of the costs of such repair and maintenance.
SEE ADDENDUM #7
B. 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.
12. 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(2) and
without a valid building permit issued by the appropriate governmental
authority, if required. Lessor retains, at his sole option, the right to retain
a General Contractor of his own choosing, provided Lessor's contractor is
competitive with its fees and that the work is done on an "open book" basis, 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, normal wear and tear, Acts of God, Damage and
Destruction excepted. Upon requesting Lessor's written consent for any
alteration, addition or improvements, Lessee shall also specifically request
Lessor's written clarification as to whether Lessor will require said
alterations to be removed upon termination of Lease. Any alteration, addition,
or improvement to the Premises, excluding trade fixtures, shall become the
property of Lessor upon Lessee's surrender of Premises or upon earlier
termination of Lease, and shall remain upon and be surrendered with the Premises
at the termination of this Lease.
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(2)Lessee does not need prior written approval of Lessor for alterations
that are non-structural in nature provided that costs for said alterations do
not exceed $1,000.00 and the alterations do not penetrate the roof membrane.
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["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 Premises 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,
except for furniture systems that include partitions, electrical signs,
carpeting, or any other installation which has become an integral part of the
Premises, excluding trade fixtures. 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 improvements. Lessee's failure to post notices of
non-responsibility as required hereunder shall be a breach of this Lease.
Lessor represents to Lessee that at the time of Lessee's taking
occupancy, the Premises meet all governmental codes and regulations. 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, provided,
however, that cost for said alteration, addition, change shall be amortized over
the useful life of the alteration or addition, and Lessee shall be obligated to
pay only the amortized amounts which coincide with the term of the Lease.
13. Acceptance of the Premises and Covenant to Surrender. By entry and
taking possession of the Premises pursuant to this Lease, and subject to
existing warranties and representations, 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.
However, within sixty (60) days of taking occupancy, Lessee shall
provide to Lessor a "punch list" of items to be corrected and Lessor will use
its best efforts to complete items on said list.
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 reasonable wear and tear, Acts of God,
Damage and Destruction [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 necessary to restore the Premises to its original condition, normal
wear and tear excepted.
NOTE:
Language indicated as being shown by strike out in the typeset document, or
manually struck-through, is enclosed in brackets " [ " and " ] " in the
electronic format.
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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.
SEE ADDENDUM #8
14. 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 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, 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 Lease. For the purpose 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, unamortized 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
NOTE:
Language indicated as being shown by strike out in the typeset document, or
manually struck-through, is enclosed in brackets " [ " and " ] " in the
electronic format.
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possession of the Premises, if Lessee obtains Lessor's consent, Lessee shall
have the right to assign or 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 withhold.
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 as agreed under this Lease other than
rent due from Lessee; (2) all costs, including for maintenance, incurred by
Lessor in reletting; (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 reletting shall be held by Lessor and applied in payment of
future rent as rent becomes due under this Lease. In no event shall Lessee be
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 comments a default, subject to cure
period outlined in no. 8 of Addendum I, 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 from the date the sum is paid by 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.
15. 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 Premises 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)] fifty (150) days following the
date of destruction (such period of time to be extended for delays caused by the
fault or neglect of Lessee 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 but in no event greater than 180
days), then Lessee shall have the right to terminate this Lease by giving
fifteen (15) days prior written notice to Lessor. If said destruction occurs
during the last twelve (12) months of the Lease term, Lessee may terminate Lease
upon written notice to Lessor. Lessor's obligation to rebuild or restore
NOTE:
Language indicated as being shown by strike out in the typeset document, or
manually struck-through, is enclosed in brackets " [ " and " ] " in the
electronic format.
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11
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] only if the premises be injured [or not].
16. 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 and in Lessee's reasonable discretion, 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 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.
17. 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) indemnify, 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.
NOTE:
Language indicated as being shown by strike out in the typeset document, or
manually struck-through, is enclosed in brackets " [ " and " ] " in the
electronic format.
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18. 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 particular
use and occupancy of the Premises.
19. Subordination. Lessee agrees that this Lease shall, at the option of
Lessor, be subjected and subordinated to any mortgage, deed 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 and within five (5) business days
hereinafter [on demand], execute any instruments, releases, or other documents
that may be required by any mortgagee, mortgagor, trustor, or beneficiary under
any deed of trust, for the purpose of subjecting or subordinating this Lease to
the lien 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.
20. 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 Premises 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.
21. Assignment and Subletting. Lessee's interest in this Lease is not
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, which
consent shall not be unreasonably withheld or delayed, 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) not 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 except in the case of a public offering of stock. 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
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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, after deducting
Lessee's reasonable expenses incurred in the re-leasing of the Premises, 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, not to exceed $500.00.
22. 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.
23. 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.
24. 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
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and effect and the date to which the rent and other charges are paid in advance,
if 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] most recent
financial statements of Lessee [with an opinion of a certified public account]
signed by an authorized representative of company, including a balance sheet and
profit and loss statement, for the current fiscal year if available 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] five (5) business 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] five (5) business days, Lessee
irrevocably constitutes and appoints Lessor as its special attorney-in-fact to
execute and deliver the certificate to any third party and the default shall be
considered cured.
25. 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.
26. 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.
27. 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, and 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 it may have
theretofore specified by notice delivered in accordance herewith:
LESSOR: Los Gatos Business Park
000 Xxxxx Xxxx, Xxxxx 00
Xxxx Xxxx, Xxxxxxxxxx 00000
LESSEE: SCM Microsystems, Inc.
000-X Xxxxxxxx Xxx
Xxx Xxxxx, XX 00000
28. 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
NOTE:
Language indicated as being shown by strike out in the typeset document, or
manually struck-through, is enclosed in brackets " [ " and " ] " in the
electronic format.
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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.
29. 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.
30. 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)] one and
one quarter (1 1/4) times the previous month's rental rate per month, and shall
otherwise be on the terms and conditions herein specified, so far as applicable.
31. 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 this 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.
32. 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 Premises, 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, provided that the default of Lessor is not caused
by the negligence or willful misconduct of Lessor, its agents, officers,
employees, licensees or invitees. Neither Lessor nor any of the partners
comprising the partnership designated as Lessor shall be personally liable for
any deficiency.
33. Miscellaneous.
A. Time is of the essence of this Lease, and of each and all of
its provisions.
B. The term "building" shall mean the building in which the
Premises are situated.
C. 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
NOTE:
Language indicated as being shown by strike out in the typeset document, or
manually struck-through, is enclosed in brackets " [ " and " ] " in the
electronic format.
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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).
D. 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.
E. The term "assign" shall include the term "transfer."
F. The invalidity or unenforceability of any provision of this
Lease shall not affect the validity or enforceability of the remainder of this
Lease.
G. All parties hereto have equally participated in the
preparation of this Lease.
H. 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.
I. Lessor has made no representation (s) whatsoever to Lessee
(express or implied) except as may be expressly stated in writing in this Lease
instrument.
J. 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.
K. 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
not be to the exclusion of any other remedy.
L. 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 assigns of all the parties hereto; and all of
the parties hereto shall jointly and severally be liable hereunder.
M. This Lease has been negotiated by the parties hereto and the
language hereof shall not be construed for or against either party.
N. 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.
NOTE:
Language indicated as being shown by strike out in the typeset document, or
manually struck-through, is enclosed in brackets " [ " and " ] " in the
electronic format.
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IN WITNESS WHEREOF, Lessor and Lessee have executed this Lease on the
date first above-written.
LESSOR: LESSEE:
Los Gatos Business Park SCM Microsystems, Inc.
By: s\ Xxxxxx X. Xxxxx, III By: s\ Xxxxxx Xxxxxxxxx
-------------------------------- ------------------------------
Xxxxxx X. Xxxxx, III Xxxxxx Xxxxxxxxx,
General Partner CEO
Date: 10/14/94 Date: 10/10/94
-------------------------------- ------------------------------
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ADDENDUM I
REFERENCE IS MADE TO THAT LEASE BY AND BETWEEN LOS GATOS
BUSINESS PARK, LESSOR, AND SCM MICROSYSTEMS, INC., 000X XXXXXXXX XXX, XXX
XXXXX, XXXXXX, DATED SEPTEMBER 29, 1994.
To that certain Lease the following wording is added:
1. Late Charge. Lessor agrees to provide Lessee with written notice of
delinquent rent and a five (5) day cure period before assessing a late charge
for the first three (3) instances of Lessee being delinquent. After the third
instance, Lessor is not required to notify Lessee before assessing a late
charge.
2. Delivery of Premises. If Lessor is unable to deliver the Premises to
Lessee within thirty (30) days of commencement of Lease, this Lease may be
terminated by Lessee and all deposits shall be returned to Lessee.
3. Rent. Rent for the term of the Lease shall be as follows:
MONTHS SQUARE FEET MONTHLY RENT/NNN
------ ----------- ----------------
11/94 - 7/95 01/09 3,500 $3,675.00
9/95 - 12/95 10/14 4,000 $4,200.00
1/96 - 4/96 15/18 4,500 $4,725.00
5/96 - 10/98 19/48 5,311 $5,577.00
Lessee agrees to pay for the triple net expenses for the entire Premises
(5,311 square feet) effective the commencement date of the Lease.
4. Hazardous Materials. The following language is added to Section
6 of Lease:
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 therefore 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
19
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.
Lessee shall not be responsible for any costs whatsoever in
connection with any contamination on the site that takes place during the lease
term unless Lessor proves said contamination is caused by Lessee, its agents,
officers, employees, licensees or invitees.
Lessee's and Lessor's obligations hereunder shall survive the
termination of this Lease.
5. Tenant Improvements. Lessee agrees to pay to Lessor $1,000.00 upon
taking occupancy of the Premises for tenant improvements.
6. Lessor's Warranty. Notwithstanding anything to the contrary contained
herein, Lessor will guarantee the performance, at its sole cost and expense, of
the HVAC system, roof membrane, and all other systems to the Premises for the
first twelve (12) months of the Lease term only.
Not included in this guarantee is the standard maintenance of the
HVAC system and repairs to the HVAC system that do not exceed $500.00.
7. Repairs. Notwithstanding anything in Section 11 or elsewhere in the
Lease to the contrary, Lessee shall have no obligation to perform any repairs or
replacements in excess of $2,500.00 considered to be a capital expenditure;
instead, Lessor shall perform such repairs or replacements and Lessee shall be
responsible only for a portion of said costs based on the useful life of the
repairs/replacement and the remaining term of the lease.
Lessee may choose to pay for its share, as outlined above, in
either one lump sum payment due upon completion of repairs/replacement, or
Lessee may request Lessor amortize said costs over the remaining lease term at
the rate of Lessor's cost of funds, not to exceed Bank of America Prime + 3%.
8. Default. Lessor shall not exercise any of its remedies against Lessee
by reason of any default under this Lease unless and until Lessor shall have
given to Lessee written notice of such default and unless Lessee shall have
failed to remedy a monetary default within ten (10) days or any
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other default within thirty (30) days. If the nature of any other default is
such that it cannot reasonably be cured or remedied within thirty (30) days but
Lessee is diligently pursuing its cure, Lessor shall not exercise its remedies
against Lessee by reason of default.
The remedy described in Section 14 of Lease regarding interest
rate is modified by substituting "Bank of America Prime + 4% per annum" in place
of the phrase "the maximum rate an individual is permitted by law to charge"
wherever it appears in said Section.
9. Utilities. Lessor acknowledges that the PG&E meter is shared by
Lessee and the space adjacent to leased Premises. Since adjacent space is vacant
at time of Lessee's occupancy, Lessee agrees to pay for 100% of the utilities to
the Premises pursuant to Section 10 of base Lease. Should the adjacent space be
leased to a third party, Lessee's usage up to that time shall become the base in
determining Lessee's share of PG&E charges.
10. Lessor's Consent. It is agreed that whenever required under the
terms of the Lease, Lessor's consent shall not be unreasonably withheld or
delayed.
11. Covenants, Conditions & Restrictions. In the event of any
inconsistency between the Lease/Addendum I and the Covenants, Conditions and
Restrictions, the terms of the Lease/Addendum shall control.
All other terms and conditions of the base Lease remain in full force
and effect.
AGREED AND ACCEPTED:
LESSOR LESSEE
Los Gatos Business Park SCM Microsystems, Inc.
s/ Xxxxxx X. Xxxxx, III s/ Xxxxxx Xxxxxxxxx
--------------------------------- -----------------------------------
Xxxxxx X. Xxxxx, III Xxxxxx Xxxxxxxxx
General Partner CEO
Date: 10/14/94 Date: 10/10/94
[SUCCEEDING TWO (2) PAGES CONTAIN MAPS OF THE LEASED PROPERTY]
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IMPROVEMENTS:
1. Wall off openings in existing demising wall.
2. Remove existing water line drop in office to be
removed and capped above ceiling.
3. New walls: Add (2) new offices, +/- 11' x 12'
as shown. Add (1) new conference room, +/-
12' x 18' as shown. Add wall for new coffee
bar, as shown.
4. Remove existing door and fill in wall at existing
office.
5. Add (6 ft. long) plastic laminate base cabinet
next to existing restrooms in coffee bar.
6. Paint existing office doors and new walls or
affected work only, to match existing.
7. Flooring: Provide new carpet in front open
office area and VCT in coffee bar area. Tenant
to select from building standard selections.
8. Electrical: Standard 2x4 fluorescent lights to be
relocated in new rooms and standard office
lighting in open office area. Add electrical
outlets and telephone boxes with pull strings, as
shown.
9. HVAC: Existing to be modified as required by
new rooms only.
10. Fire Sprinklers: Existing modified as required
for new walls.
11. Plumbing: One new sink in new coffee bar
counter.
12. Repair existing rear H.M. man door.
Excludes: Telephone, data and communication
cabling, window blinds, millwork other than 6
ft. base unit, office sidelites, addition power,
furniture and installation including power
panels, restroom modifications, modifications
to warehouse area.
13. Landlord, at landlord's sole cost & expense.
EXHIBIT B:
LOS GATOS BUSINESS PARK
000 XXXXXXXX XXX, XXXXX X
XXX XXXXX, XX
---------------------------
TENANT
---------------------------
LESSOR DATE
---------------------------
LESSEE DATE
*Agrees to remove electrical box, repair damage from said removal, and relocate
said box to the warehouse area.
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00
XXX XXXXX XXXXXXXX XXXX
XXXXXXXXX, CONDITIONS AND RESTRICTIONS
AGREED & ACCEPTED:
-------------------------- ------------
LESSEE DATE
-------------------------- ------------
LESSOR DATE
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23
LOS GATOS BUSINESS PARK
THIS DECLARATION is made on this 2nd day of February, 1976, by LOS GATOS
BUSINESS PARK, A LIMITED PARTNERSHIP organized under the laws of the State of
California.
The property described in Exhibit "A" is subject to this Declaration and
will be known as LOS GATOS BUSINESS PARK.
LOS GATOS BUSINESS PARK is being developed as a planned industrial
complex which will provide employment opportunities for the residents of the
County of Santa Xxxxx and the surrounding area. This Declaration is designed to
complement local government and municipal regulations. Except where the LOS
GATOS BUSINESS PARK RESTRICTIONS conflict with such local government and
municipal regulations, said Restrictions shall be binding upon all owners,
lessees, licensees, occupants, users of the property subject to these
Restrictions, and their successors in interest as set forth in this Declaration.
It is assumed that the users of industrial sites in the LOS GATOS BUSINESS PARK
will be motivated to preserve these qualities through mutual cooperation and by
enforcing not only the letter but the spirit of this Declaration.
ARTICLE I
DEFINITIONS
Unless the context otherwise specifies or requires, the terms defined in
this Article I shall, for all purposes of this Declaration, have the meanings
herein specified.
Section 1 - "ARCHITECT": The term "Architect" shall mean a person
holding a certificate to practice architecture in the State of California under
authority of Division 3, Chapter 3 of the Business and Professions Code of the
State of California.
24
Section 2 - "BENEFICIARY": The term "Beneficiary" shall mean a mortgagee
under a mortgage, as well as a beneficiary under a deed of trust.
Section 3 - "DECLARATION": The term "Declaration" shall mean the
COVENANTS, CONDITIONS AND RESTRICTIONS FOR LOS GATOS BUSINESS PARK.
Section 4 - "DEED OF TRUST": The term "Deed of Trust" or "Trust Deed"
shall mean a mortgage as well as a deed of trust.
Section 5 - "FILE": The term "File" shall mean, with reference to any
subdivision map, record of survey or parcel map, the filing of said map in the
Office of the Recorder of the County of Santa Xxxxx, State of California.
Section 6 - "GRANTOR": The term "Grantor" shall mean LOS GATOS BUSINESS
PARK, a LIMITED PARTNERSHIP; and to the extent provided in Article VII Section I
below, its successors and assigns.
Section 7 - "IMPROVEMENTS": The term "Improvements" shall include
buildings, outbuildings, roads, driveways, parking areas, fences, screening
walls and barriers, retaining walls, stairs, decks, xxxxxx, windbreaks,
plantings, planted trees and shrubs, poles, signs, loading areas and all other
structures or landscaping improvements of every type and kind.
Section 8 - "MORTGAGEE": The term "Mortgagee" shall mean a beneficiary
under, or a holder of a deed of trust as well as a mortgagee under a mortgage.
Xxxxxxx 0 - "XXX XXXXX XXXXXXXX XXXX": The term "LOS GATOS BUSINESS
PARK" shall mean all of the real property now or hereafter made subject to this
Declaration.
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25
Section 10 - "LOS GATOS BUSINESS PARK RESTRICTIONS": The term "Los Gatos
Business Park Restrictions" shall mean the covenants, conditions and restriction
set forth in this Declaration, as it may from time to time be amended or
supplemented.
Section 11 - "OWNER": The term "Owner" shall mean and refer to any
person having any estate in any site, excluding any person who holds such
interest as security for the payment of an obligation, but including any
mortgagee or other security holder in actual possession of any lot, by
foreclosure or otherwise, and any person taking title from an such security
holder.
Section 12 - "RECORD" - "RECORDED": The term "Record" or "Recorded"
shall mean, with respect to any document, the recordation of said document in
the Office of the County Recorder of the County of Santa Xxxxx, State of
California.
Section 13 - "SIGN": The term "Sign" shall mean any structure, device or
contrivance, electric or non-electric, and all parts thereof which are erected
or used for advertising purposes upon or within which any poster, xxxx,
bulletin, printing, lettering, painting, device or other advertising of any kind
whatsoever is used, placed, posted, tacked, nailed, pasted, or otherwise
fastened or affixed to ground or improvements.
Section 14 - "SITE": The term "Site" shall mean all contiguous land
under one ownership.
Section 15 - "STREETS": The term "Streets" shall mean any street,
highway or other thoroughfare within or adjacent to the property and shown on
any recorded subdivision or parcel map, or record of survey, whether designated
thereon as street, xxxxxxxxx, xxxxx, xxxxx, xxxx, xxxxxxx, way, land, circle or
otherwise.
Section 16 - "VISIBLE FROM NEIGHBORING PROPERTY": The term "Visible From
Neighboring Property" shall mean, with respect to any given object, that such
object is or would be
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26
visible to a person six (6) feet tall, standing on any part of such neighboring
property at an elevation no greater than the elevation of the base of the object
being viewed.
Section 17 - "LOT": The term "lot" shall mean the fractional part of
blocks as divided and sub-divided on subdivision or parcel maps of the Official
Records of the Recorder of Santa Xxxxx County, California, as they from time to
time become current.
ARTICLE II
PROPERTY SUBJECT TO THE LOS GATOS BUSINESS PARK RESTRICTIONS
Section 1 - General Declaration Creating Los Gatos Business Park:
Grantor hereby declares that all of the real property located in the
Town of Los Gatos, County of Santa Xxxxx, State of California, described in
Exhibit "A", which is attached hereto and incorporated herein by this reference
is and shall be, conveyed, hypothecated, encumbered, leased, occupied, built
upon or otherwise used, improved or transferred in whole or in part subject to
the LOS GATOS BUSINESS PARK RESTRICTIONS, meaning the covenants, conditions and
restrictions set forth in this Declaration. All of said restrictions are
declared and agreed to be in furtherance of a general plan for the subdivision,
improvement and sale of said real property and are established for the purpose
of enhancing and perfecting the value, desirability and attractiveness of said
real property and every part thereof. All of the LOS GATOS BUSINESS PARK
RESTRICTIONS shall run with all of said real property for all purposes and shall
be binding upon and inure to the benefit of Grantor and all owners, lessees,
licensees, occupants and their successors in interest as set forth in this
Declaration.
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27
Section 2 - Addition of Other Real Property by Grantor:
A. Grantor's Power: Grantor may at any time during the pendency
of this Declaration add all or a portion of any land now or hereafter owned by
Grantor to the property which is covered by this Declaration, and upon recording
of a notice of addition of real property containing at least the provisions set
forth in Section 2B of this Article II, the provisions of this Declaration
specified in said notice shall apply to such added land in the same manner as if
it were originally covered by this Declaration. Thereafter, to the extent this
Declaration is made applicable thereto, the rights, powers and responsibilities
of Grantor and the owners, lessees, licensees and occupants of parcels within
such added land shall be the same as in the case of the land described in
Exhibit "A".
B. Notice of Addition of Land: The notice of addition of real
property referred to in Section 2A above shall contain at least the following
provisions:
(1) A reference to this Declaration stating the date of
recording hereto and the book or books of the records of Santa Xxxxx County,
California, and the page numbers where this Declaration is recorded;
(2) A statement that the provisions of this Declaration,
or some specified part thereof, shall apply to such added real property;
(3) A legal description of such added real property; and
(4) Such other or different covenants, conditions and
restrictions as Grantor shall, in its discretion, specify to regulate and
control the use, occupancy and improvement of such added real property.
ARTICLE III
REGULATION OF IMPROVEMENTS
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28
Section 1 - Approval of Plans:
A. Approval Required: No improvement shall be erected, placed,
altered, maintained or permitted to remain on any land subject to this
Declaration until final plans and specifications shall have been submitted to
and approved in writing by Grantor. Such final plans and specifications shall be
submitted in writing in duplicate over the authorized signature of the owner,
lessee, licensee or other occupant of the site or his authorized agent. Such
plans and specifications shall be in such form and shall contain such
information as may be required by the Grantor, but in any event shall include:
(1) A site development plan of the lot showing the nature,
grading scheme, kind, shape, materials and location with respect to the
particular lot (including proposed front, rear and side setback lines) of all
structures, the location thereof with reference to structures on adjoining
portions of the property, and the number and location of all parking spaces and
driveways on the lot;
(2) A landscaping plan for the particular lot;
(3) A signing and lighting plan; and
(4) A building elevation plan showing dimensions,
materials and exterior color scheme and be in no less detail than required by
the appropriate governmental authority for the issuance of a building permit.
Changes in approved plans which materially affect building size, placement or
external appearance must be similarly submitted to and approved by Grantor.
B. BASIS FOR APPROVAL: Approval shall be based, among other
things, on adequacy of site dimensions, adequacy of structural design,
conformity and harmony of external design with neighboring structures, effect of
location and use of proposed improvements on neighboring sites, proper facing of
main elevation with respect to nearby streets, adequacy of
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29
screening of mechanical air conditioning or other roof top installations, and
conformity of the plans and specifications to the purpose and general plan and
intent of this Declaration. No plans will be approve which do not provide for
the underground installation of power, electrical, telephone and other utility
lines from the property line to buildings. No plans will be approved which
provide for buildings covering more than fifty percent (50%) of the lot areas.
Grantor shall not arbitrarily or unreasonably withhold its approval of such
plans and specifications. Grantor shall have the right to disapprove any plans
and specifications submitted hereunder, including but not limited to any of the
following:
(1) Failure to comply with any of the Restrictions;
(2) Failure to include information in such plans and
specifications as may have been reasonably requested by Grantor;
(3) Objection to the exterior design, appearance of
materials of any proposed structure;
(4) Objection on the ground of incompatibility of any
proposed structure or use with existing structures or uses upon other lots or
other properties in the vicinity;
(5) Objection to the location of any proposed structure
upon any lot with reference to other lots in the vicinity;
(6) Objection to the grading plan for any lot;
(7) Objection to the color scheme, finish, proportions,
style or architecture, height, bulk or appropriateness of any structure;
(8) Objection to the number or size of parking spaces, or
to the design of the parking area;
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30
(9) Any other matter, which in the judgment of the
Grantor, would render the proposed structure or structures or use inharmonious
with the general plan for improvement of the property or with structures located
upon other lots or other properties in the vicinity.
C. Approval: Upon approval by the Grantor of any plans and
specification submitted hereunder, a copy of such plans and specifications as
approved, shall be deposited for permanent record with the Grantor, and a copy
of such plans an specifications bearing such approval, in writing, shall be
returned to the applicant submitting the same.
D. Result of an Action: If Grantor fails either to approve or
disapprove such plans and specifications within sixty (60) days after the same
have been submitted to it, it shall be conclusively presumed that Grantor has
disapproved said plans and specifications; provided, however, that if within
said sixty (60) day period Grantor gives written notice of the fact that more
time is required for the approval of such plans and specifications, there shall
be no presumption that the same are disapproved until the expiration of a
reasonable period of time as set forth in said notice.
E. Proceeding with Work: Upon receipt of approval from Grantor
pursuant to this Section the Owner or lessee to whom the same is given shall as
soon as practicable, satisfy all conditions thereof and diligently proceed with
the commencement and completion of all approved construction, refinishing,
alternating and excavations. In all cases work shall be commenced within one (1)
year from the date of such approval. If there is a failure to comply with this
paragraph, then the approval given pursuant to this Section shall be deemed
revoked unless Grantor upon request made prior to the expiration of said one (1)
year period extends the time for commencing work.
F. Completion of Work: In any event, reconstruction, refinishing
or alteration of any such improvement shall be completed within two (2) years
after the commencement thereof
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31
except for so long as such completion is rendered impossible or would result in
great hardship due to strikes, fire, national emergencies, natural calamities or
other supervening forces beyond the control the Owner, lessee, licensee or
occupant or his agents. Failure to comply with this paragraph shall constitute a
breach of the LOS GATOS BUSINESS PARK RESTRICTIONS and subject the defaulting
party or parties to all enforcement procedures set forth in this Declaration and
any other remedies provided by law or in equity.
G. Liability: Grantor shall not be liable for any damage, loss or
prejudice suffered or claimed on account of:
(1) The approval or disapproval of any plans, drawings and
specifications whether or not defective;
(2) The construction or performance of any work, whether
or not pursuant to approved plans, drawings and specifications; or
(3) The development of any property within the LOS GATOS
BUSINESS PARK.
H. Review Fee: An architectural review fee shall be paid to
Grantor at such time as plans and specifications are submitted for approval
based on the following schedule;
(1) When the plans submitted are prepared by an architect,
the architectural review fee shall be Two Hundred Fifty Dollars ($250.00);
(2) In all other cases the architectural review fee shall
be Five Hundred Dollars ($500.00).
I. Construction Without Approval: If any improvement shall be
altered, erected, placed or maintained upon any lot, or any new use commenced on
any lot, otherwise than in
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32
accordance with the approval by the Grantor pursuant to the provisions of this
Section, such alteration, erection, maintenance or use shall be deemed to have
been undertaken in violation of this Section and without the approval required
herein, and upon written notice from the Grantor, any such structure so altered,
erected, placed or maintained upon any lot in violation hereto shall be removed
or re-altered, and any such use shall be terminated so as to extinguish such
violation. If within fifteen (15) days after the notice of such violation the
Owner of the lot upon which such violation exists shall not have taken
reasonable steps toward the removal or termination of the same, Grantor shall
have the right, through its agents and employees, to enter upon such lot,
subject to any security controls imposed by the Government of the United States
(or any agency thereof) with respect to any operation being conducted thereon,
and to take such steps as may be necessary to extinguish such violation. Grantor
or any such agent shall not thereby be deemed to have trespassed upon such lot
and shall be subject to no liability to the Owner or occupant of such lot for
such entry and any action taken in connection with the removal of any violation.
The cost of any abatement or removal hereunder shall be a binding personal
obligation of such mortgagee upon the lot in question. The lien provided in this
Section shall not be valid as against a bona-fide purchaser (or bona-fide
mortgagee) of a lot in question unless a suit to enforce said lien shall have
been filed in a court of record in Santa Xxxxx County, California, prior to the
recordation among the land records of Santa
Xxxxx County, California, of the deed (or mortgage) conveying the lot in
question to such purchaser (or subjecting the same to such mortgage).
Section 2 - Limitations on Developments:
A. Minimum Setback Lines: No improvements of any kind, and no
part thereof, shall be placed closer than permitted by Grantor to an interior
property line. No improvements of
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any kind, and no part thereof, shall be placed closer than twenty-five (25) feet
from a property line fronting streets.
B. Exceptions to Setback Requirements: The following structures
and improvements are specifically excluded from the foregoing setback
requirements:
(1) Roof overhang subject to the specific approval of
Grantor in writing, provided it does not extend more than six (6) feet into the
setback area;
(2) Steps and walks;
(3) Paving and associated curbing except that vehicle
parking area shall not be permitted to extend within street setback area.
(4) Fences, except that no fence shall be placed within
the street setback area unless specific approval is given by Grantor in writing;
(5) Landscaping;
(6) Planters, not to exceed three (3) feet in height,
unless specific written approval is given by Grantor;
(6) Signs identifying the owner, lessee or occupant
subject to the specific approval of Grantor in writing;
(7) Lighting facilities, subject to the specific approval
of Grantor in writing.
C. Landscaping: Every site on which a building shall have been
placed shall be landscaped in accordance with plans and specifications submitted
to and approved by Grantor pursuant to Section 1 above. Landscaping as approved
by Grantor shall be installed within thirty (30) days of occupancy or completion
of the building, whichever occurs first, unless Grantor approves in writing
another completion date. After completion such landscaping shall be maintained
in a sightly
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and well-kept condition. The area of each site between any street and any
minimum setback line as defined by paragraphs A and B of this Section shall be
landscaped with an effective combination of street trees, trees, ground cover
and shrubbery. All other areas fronting on a street that are not utilized for
parking or driveways shall be landscaped in a similar manner. All areas of each
site not fronting on a street and not used for parking or storage shall be
landscaped utilizing ground cover and/or shrub and tree materials. Undeveloped
areas proposed for future expansion shall be maintained in a weed-free condition
and shall be landscaped if required by Grantor. Unpaved areas between the street
curb line and the property line adjoining any street shall be landscaped and
maintained by owner. An underground automatic landscape irrigation system shall
be provided by the owner over all landscaped areas. Areas used for parking shall
be landscaped, bermed or fenced in such a manner as to screen said areas from
view from adjacent streets. Such screening shall extend at least forty two (42)
inches above the high point of the finished pavement in said parking area. Plant
materials used for this purpose shall consist of lineal or grouped masses of
shrubs and/or trees.
If, in the opinion and sole discretion of the Grantor, the required
landscaping is not maintained in a sightly and well-kept condition, the Grantor
shall have the right, through its agents and employees, to enter onto any site
and to take such steps as may be necessary to maintain the landscaping in a
sightly and well-kept condition. Grantor, or any such agent or employee, shall
not thereby be deemed to have trespassed upon such site and shall be subject to
no liability to the owner or occupant of such site for such entry and any action
taken in connection with such necessary maintenance. The cost of any such
maintenance hereunder shall be a binding personal obligation of such Owner, as
well as a lien (enforceable in the same manner as a mortgage) upon the site in
question. The lien provided in this Section shall not be valid as against a
bona-fide purchaser (or
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35
bona-fide mortgagee) of a site in question unless a suit to enforce said lien
shall have been filed in a court of record in Santa Xxxxx County, California,
prior to the recordation among the land records of Santa Xxxxx County,
California, of a deed (or mortgage) conveying the site in question to such
purchaser (or subjecting the same to such mortgage).
D. Signs:
(1) No sign shall be permitted on any site unless approved
by Grantor in writing. No sign shall be approved other than those identifying
the name, business and products of the person or firm occupying the premises and
those offer the premises for sale or for lease;
(2) The location of signs shall be governed by the setback
requirements set forth in Article III-Section 2 unless Grantor gives permission
for a nonconforming location;
E. Parking Areas:
(1) Adequate off-street parking shall be provided to
accommodate all parking needs for employee, visitor and company vehicles on the
site. The intent of this provision is
to eliminate the need for any on-street parking; provided that this provision
does not prohibit on-street parking of public transportation vehicles.
(2) On-Site: Required off-street parking shall be provided
on the site of the use served, or on a contiguous site, or within six hundred
(600) feet of the subject site. Where parking is provided on other than the site
concerned, a recorded document shall be filed with the Grantor and signed by the
owners of the alternate site stipulating to the permanent reservation of the use
of the site for said parking.
(3) Paved Areas: Parking areas shall be paved so as to
provide dust-free, all-weather surfaces. Each parking space provided shall be
designated by lines painted on the paved
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36
surfaces and shall be adequate in area, and all parking areas shall provide, in
addition to parking spaces, adequate driveways and space for the movement of
vehicles.
(4) Parking Plan: The number of parking spaces required
for each site, and the specific location of the same, shall be designated in
plans for each site which have been submitted and approved in the manner set
forth herein. In determining the number of parking spaces and the location
thereof of each site, Grantor shall consider the exact nature of the use
proposed for the site; the anticipated number and manner of employment of
persons on the site; the nature and location of proposed structures on the site;
and such other matters as Grantor shall deem relevant.
(5) Limitation: No parking spaces shall be located on, and
no parking shall be permitted by the Grantor within designated street setback
areas.
F. Storage and Loading Areas:
(1) Unless specifically approved by Grantor in writing, no
materials, supplies or equipment, including company-owned or operated trucks and
motor vehicles shall be stored in any area on a site except inside a closed
building, or behind a visual barrier screening such areas so that they are not
visible from the neighboring properties or public streets. Any storage areas
screened by visual barriers shall be located on the rear portions of the site,
unless approved by Grantor in writing. No storage areas shall extend into
setback lines as established herein unless approved by Grantor in writing.
(2) All provisions for vehicle loading shall be provided
on the site with on-street vehicle loading not permitted.
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37
(3) No loading dock, trucking or railroad activity shall
be permitted between the structure and any street, and no loading areas shall
encroach into setback areas unless specifically approved by Grantor.
(4) Loading dock areas shall be set back and screened so
as not to be visible from neighboring properties and streets, but in any event,
the docks shall not be closer than forty-five (45) feet from a property line
fronting any street unless specifically approved by Grantor in writing.
ARTICLE IV
REGULATION OF OPERATIONS AND USES
Section 1 - Permitted Uses: Unless otherwise specifically prohibited
herein, any industrial operation and use will be permitted, provided Grantor
specifically consents to such use in writing, if it is performed or carried out
entirely within a building that is so designed and constructed that the enclosed
operations and uses do not cause or produce a nuisance to adjacent sites such
as, but not limited to vibration, sound, electromechanical disturbances and
radiation, electromagnet disturbances, radiation, air or water pollution, dust,
emission of odorous, toxic and non-toxic matter. Certain activities which cannot
be carried on within a building may be permitted, provided Grantor specifically
consents to such activity in writing and further provided such activity is
screened so as not to be visible from neighboring properties and streets. All
lighting is to be shielded from adjacent sites.
Section 2 - Restrictions and Prohibited Uses:
A. Prohibited Uses: The following operations and uses shall not
be permitted on any property subject to these restrictions:
(1) Residential of any type;
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38
(2) Trailer courts or recreation vehicle campgrounds;
(3) Hotels or motels;
(4) Junk yards or recycling facilities;
(5) Drilling for and/or the removal of oil, gas or other
hydrocarbon substances (except that this provision shall not be deemed to
prohibit the entry of subject property below a depth of five hundred (500) feet
for such purposes);
(6) Commercial excavation of building or construction
materials, except in the course of approved construction as provided by Article
III-Section 1 above;
(7) Distillation of bones;
(8) Dumping, disposal, incineration or reduction of
garbage, sewage, offal, dead animals or refuse;
(9) Fat rendering;
(10) Stockyard or xxxxxxxxx of animals;
(11) Refining of petroleum or of its products;
(12) Smelting of iron, tin, zinc, or other ores;
(13) Cemeteries
(14) Jail or honor farms;
(15) Labor or migrant worker camps;
(16) Truck terminals;
(17) Petroleum storage yards.
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39
B. Nuisances: No nuisance shall be permitted to exist or operate
upon any site so as to be offensive or detrimental to any property in the
vicinity thereof or to its occupants. A "nuisance" shall include but not be
limited to any of the following conditions:
(1) Dirt, Dust and Waste Discharge: No use of the property
will be permitted which emits dust, sweepings, dirt or cinders into the
atmosphere, or discharges liquid, solid wastes or other harmful matter into any
stream, river or other body of water which, in the opinion of the Grantor may
adversely affect the health, safety, comfort of, or intended property use by
persons within the area. Nor shall waste or any substance or materials of any
kind be discharged into any public sewer serving the property, or any part
thereof, in violation of any regulations of any public body having jurisdiction.
(2) Fumes, Cases, Odors, Etc.: No fumes, odors, gases,
vapors, acids, or other substances shall be permitted to escape or be discharged
into the atmosphere which, in the opinion of Grantor, may be detrimental to the
health, safety or welfare of persons, or may interfere with the comfort of
persons within the area, or which may be harmful to property or vegetation.
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40
(3) Glare or Heat: Any operation producing intense glare
or heat shall be performed only within an enclosed or screened area and then
only in such manner that the glare or beat emitted will not be discernible from
any exterior lot line.
(4) Noise: At no point outside of any property plane shall
the sound pressure level of any machine, device, or any combination of same,
from any individual plant or operation exceed the decibel levels in the
designated preferred octave bands shown below:
MAXIMUM SOUND
OCTAVE BAND PRESSURE LEVELS (DB) AT
CENTER FREQUENCY BOUNDARY PLANE OF XXX
00.0 00
-00-
00
00 00
000 00
250 59
500 55
1000 52
2000 50
4000 48
8000 47
A-scale levels for monitoring purposes are equivalent to 60 dB(A). The
maximum permissible noise levels for the octave bands shown above are equal to
an NC-50 Noise Criterion curve when plotted on the preferred frequency scale.
Noise from motor vehicles and other transportation facilities are exempted. The
operation of signaling devices and other equipment having impulsive or
non-continuous sound characteristics shall have the following corrections
applied:
CORRECTIONS
Pure tone content -5dB
Impulsive character -5dB
Duration for non-continuous
sounds in daytime only,
1 min/hr -5dB
10 sec/10 min -l0dB
2 sec/10 min -l5dB
The reference level for the dB values listed above is the pressure of
0.0002 microbar or 0.0002 dyne/em.
(5) Smoke and Particulate Matter: Visible emissions of
smoke will not be permitted (outside any building) which exceed Ringlemann No. 1
on the Ringlemann Chart of the United States Bureau of Mines, other than the
exhausts emitted by motor vehicles or other transportation facilities. This
requirement shall also be applicable to the disposal of trash and waste
materials, Wind-borne dust, sprays and mists originating in plants will not be
permitted.
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(6) Vibration: Buildings and other structures shall be
constructed and machinery and equipment installed and insulated on each site so
that the ground vibration inherently and recurrently generated is not
perceptible without instruments at any point along any of the exterior lot
lines.
C. Condition of Property: The owner of any site or lot shall at
all times keep the premises, buildings, improvements and appurtenances in a
safe, clean and wholesome condition and comply in all respects with all
government, health, fire and police requirements and regulations, and the Owner
will remove at his or its own expense any rubbish of any character whatsoever
which may accumulate on such site or lot. In the event such Owner fails to
comply with any or all of such specifications or requirements, the Grantor shall
have the right, privilege and license to enter upon such premises and make any
and all corrections or improvements that may be necessary to meet such standards
and to charge such Owner the expenses incurred in doing so. Grantor or any of
its agents shall not thereby be deemed to have trespassed upon such lot and
shall be subject to no liability to the Owner or occupant of such lot for such
entry and any action taken in connection with the removal of any violation. The
cost of any abatement or removal hereunder shall be a binding personal
obligation on such Owner as well as a lien (enforceable in the same manner as a
mortgage) upon the lot in question. The lien provided in this Section shall not
be valid as against a bona-fide purchaser (or a bona-fide mortgagee) of a lot in
question unless a suit to enforce said lien shall have been filed in a court of
record in Santa Xxxxx County, California, prior to the recordation among the
land records of Santa Xxxxx County, of the deed (or mortgage) conveying the lot
in question to such purchaser, or subjecting the same to such mortgage.
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D. Repair of Buildings: No building or structure upon any site
shall be permitted to fall into disrepair, and each such building and structure
shall at all times be kept in good condition and repair and adequately painted
or otherwise finished.
E. Right of Entry: During reasonable hours and subject to
reasonable security requirements, Grantor, or its authorized representative,
shall have the right to enter upon and inspect any building, site or parcel and
the improvements thereon embraced for the purpose of ascertaining whether or not
the provisions of LOS GATOS BUSINESS PARK RESTRICTIONS have been or are being
complied with and neither Grantor nor its authorized representative, shall be
deemed to have committed a trespass or other wrongful act by reason of such
entry or inspection.
F. Refuse Collection Areas: All outdoor refuse collection areas
shall be visually screened so as not to be visible from streets, freeways and
neighboring property. No refuse collection areas shall be permitted between a
street and the front of a building.
G. Improvements: The Grantor reserves the sole right to grant
consents for the construction and operation of street railways, interurban,
rapid transit or other public utility facilities, freight railways, electric
light, telephone and telegraph pole lines aboveground or underground
conduits, and gas pipes in and upon any and all streets now existing or
hereafter established upon which any portion of the premises may now or
hereafter front or abut. The Grantor reserves and is hereby granted the
exclusive right to grant consents and to petition the proper authorities for any
and all street improvements such as grading, seeding, tree planting, sidewalks,
paving, sewer and water installation, whether it be on the surface or
sub-surface which in the opinion of the Grantor are necessary in or to the
property subject to these restrictions. The Grantor reserves the right to
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approve aboveground utility lines across any property subject to these
restrictions, when such utility lines, in the opinion of the Grantor, are
necessary to the property subject to these restrictions.
Section 3 - Other Operations and Uses: Operations and uses which are
neither specifically prohibited nor specifically authorized by these
restrictions may be permitted in a specific case if operational plans and
specifications are submitted to and approved in writing by Grantor. Approval or
disapproval of such operational plans and specifications shall be based upon the
effect of such operations or uses on other property subject to these
restrictions or upon the occupants thereof, but shall be in the sole discretion
of Grantor.
ARTICLE V
DURATION, MODIFICATION AND REPEAL
Section 1 - DURATION OF RESTRICTIONS: The LOS GATOS BUSINESS PARK
RESTRICTIONS shall continue and remain in full force and effect at all times
with respect to all property, and each part thereof now or hereafter made
subject thereto (subject, however, to the right to amend and repeal as provided
for herein) until January 1, 2009. However, unless within one (1) year prior to
January 1, 2009, there shall be recorded an instrument directing the termination
of the LOS GATOS BUSINESS PARK RESTRICTIONS signed by owners of not less than
two-thirds (2/3) of the property then subject to these restrictions, based on
the number of square feet subject to these restrictions (excluding dedicated
streets), the LOS GATOS BUSINESS PARK RESTRICTIONS, as in effect immediately
prior to the expiration date shall be continued automatically without any
further notice for an additional period of ten (10) years and thereafter for
such periods of ten (10) years unless within one (1) year prior to the expansion
of a such period the LOS GATOS BUSINESS PARK RESTRICTIONS are terminated as set
forth above in this Section.
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Section 2 - TERMINATION AND MODIFICATION: This Declaration or any
provision thereof, or any covenant, condition or restriction contained herein,
may be terminated, extended, modified or amended, as to the whole of said
property or portion thereof, with the written consent of the owners of sixty six
and two-thirds (66-2/3%) of the property subject to these restrictions, based on
the number of square feet owned as compared to the total number of square feet
subject to these restrictions (excluding dedicated streets), provided, however,
that so long as Grantor owns at least twenty five percent (25%) of the property
subject to these restrictions, or for a period of fifteen (15) years from the
effective date hereof, whichever period is longer, no such termination,
extension modification or amendment shall be effective without the written
approval of Grantor thereto. Provided further, that the provisions of Article
III and Article IV hereof shall inure to the benefit of and be enforceable
solely by Grantor, shall be capable of being amended by Grantor without the
consent of any other owner, person or entity, and shall not give any third party
any right or cause of action on account of the terms of this Declaration. No
such termination extension, modification or amendment shall be effective until a
proper instrument in writing has been executed and acknowledged and recorded in
the County where the land affected thereby is situated.
ARTICLE VI
ENFORCEMENT
Section 1 - ABATEMENT AND SUIT: Violation or breach of any restriction
herein contained shall give to Grantor the right to enter upon the property or
as to which said violation or breach exists and to summarily xxxxx and remove at
the expense of the owner, lessee or occupant thereof, any structure, thing or
condition that may be or exist thereon contrary to the intent and meaning of the
provisions hereof, or to prosecute a proceeding at law or in equity against the
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person or persons who have violated or are attempting to violate any of these
restrictions to enjoin or prevent them from doing so, to cause said violation to
be remedied or to recover damages for said violation.
Section 2 - DEEMED TO CONSTITUTE A NUISANCE: The result of every action
or omission whereby any restriction herein contained is violated in whole or in
part is hereby declared to be and to constitute a nuisance, and every remedy
allowed by law or equity against an owner, either public or private, shall be
applicable against every such result and may be exercised by Grantor.
Section 3 - ATTORNEY FEES: In any legal or equitable proceeding for the
enforcement of this Declaration or any provision hereof, whether it be an action
for damages, declaratory relief or injunctive relief, the losing party or
parties shall pay the attorney fees of the prevailing party or parties, in such
reasonable amount as may be fixed by the court in such proceedings, or in a
separate action brought for that purpose. The prevailing party shall be entitled
to said attorney fees, even though said proceeding is settled prior to judgment.
All remedies provided herein or at law or in equity shall be cumulative and not
exclusive.
Section 4 - FAILURE TO ENFORCE NOT A WAIVER OF RIGHTS: The Grantor shall
have the right to waive or grant a variance from any requirement, restriction or
standard contained in these Restrictions. The failure of Grantor to enforce any
requirement, restriction or standard herein contained, shall in no event be
deemed to be a waiver of the right to do so thereafter, nor of the right to
enforce any other restriction.
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ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 1 - ASSIGNMENT OF RIGHTS AND DUTIES: Any and all of the rights,
powers and reservations of Grantor herein contained may be assigned to any
person, corporation or association which will assume the duties of Grantor
pertaining to the particular rights, powers and reservations assigned, and upon
any such person, corporation or association evidencing its consent in writing to
accept such assignment and assume such duties, he or it shall, to the extent of
such assignment, have the same rights and powers and be subject to the same
obligations and duties as are given to and assumed by Grantor herein. The term
"Grantor" as used herein includes all such assignees and their successors and
assigns. If at any time Grantor ceases to exist and has not made such an
assignment, a successor Grantor may be appointed in the same manner as these
Restrictions may be terminated, extended, modified or amended under Article V -
Section 2. Any assignment or appointment made under this Section shall be in
recordable form and shall be recorded in the County where the land is situated.
Section 2 - CONSTRUCTION NOISE AND ACCEPTANCE: Every person or other
entity who now Or hereafter owns, occupies or acquires any right, title or
interest in or to any portion of the property made subject to these Restrictions
is and shall be conclusively deemed to have consented and agreed to every
covenant, condition and restriction contained herein, whether or not any
reference. to this Declaration is contained in the instrument by which such
person or entity acquired an interest in said property.
Section 3 - WAIVER: Neither Grantor nor its successors or assigns shall
be liable to any Owner, lessee, licensee, or occupant of land subject to this
Declaration by reason of any mistake in
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judgment, negligence, nonfeasance, action or inaction or for the enforcement or
failure to enforce any provision of this Declaration. Every Owner, lessee,
licensee or occupant of any of said property by acquiring his interest therein
agrees that he will not bring any action or suit against Grantor to recover any
such damages or to seek equitable relief.
Section 4 - MUTUALITY, RECIPROCITY - RUNS WITH LAND: All covenants,
conditions, restrictions and agreements contained herein are made for the
direct, mutual and reciprocal benefit of each and every part and parcel of the
property now or hereafter made subject to this Declaration, shall create mutual,
equitable servitudes upon each parcel in favor of every other parcel; shall
create reciprocal rights and obligations between the respective Owners of all
parcels and privity of contract and estate between all grantees of said parcels,
their heirs, successors and assigns; and shall, as to the owner of each parcel,
his heirs, successors and assigns, operate as covenants running with the land,
for the benefit of all other parcels, except as provided herein.
Section 5 - RIGHTS OF MORTGAGEES: No breach of the restrictions and
other provisions. contained herein, or any enforcement thereof, shall defeat or
render invalid the lien of any mortgage or deed of trust now or hereafter
executed upon land subject to these Restrictions; provided, however, that if any
portion of said property is sold under a foreclosure of any mortgage or under
the provisions of any deed of trust, any purchaser of such sale and his
successors and assigns shall hold any and all property so purchased subject to
all of the restrictions and other provisions of this Declaration.
Section 6 - PARAGRAPH HEADINGS: Paragraph headings, where used herein,
are inserted for convenience only and are not intended to be a part of this
Declaration or in any way to define, limit or describe the scope and intent of
the particular paragraphs to which they refer.
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Section 7 - EFFECT OF INVALIDATION: If any provisions of this
Declaration is held to be invalid by any court, the invalidity of such provision
shall not effect the validity of the remaining provisions hereof.
IN WITNESS WHEREOF, Grantor has executed this Declaration the day and
year first above written
LOS GATOS BUSINESS PARK
A Limited Partnership
s/ Xxxxxx X. Xxxxx, III
By: Xxxxxx X. Xxxxx, III
General Manager
Article VI, Section 4 entitled "Failure to Enforce Not a Waiver of
Rights" has been amended to read:
The Grantor is hereby authorized and empowered to grant reasonable
variances from the provisions of this Declaration in order to overcome practical
difficulties and in order to prevent unnecessary hardship in the application of
the provisions contained herein, provided, however, that said variances shall
not materially alter or be inconsistent with the general plan and intent of this
Declaration. The failure of Grantor to enforce any requirement, restriction or
standard herein contained, shall in no event be deemed to be a waiver of the
right to do so thereafter, nor of the right to enforce any other restriction.
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