EXHIBIT 10.21
Berg & Berg Developers
10050 Bandley Drive - Cupertino, California 95014
Phone (408) 725-0700
developers of business parks and industrial complexes in Palo Alto, Mountain
View, Sunnyvale, Cupertino & Santa Clara
PARTIES This LEASE, executed in duplicate at Cupertino, California,
this 16th day of February 1994 , by and between Berg Family
Partnership and Pacific Pay Video Limited, a California
Corporation hereinafter called respectively Lessor and Lessee,
without regard to number or gender.
USE WITNESSETH: That Lessor hereby leases to Lessee and Lessee
hires from Lessor, for the purpose of conducting therein office,
research and development, light manufacturing, and warehouse
activities, and any other legal activity.
and for no other purpose without obtaining the prior written
consent of Lessor, those certain premises with the appurtenances,
situated in the City of Sunnyvale, County of Santa Clara State of
California, and more particularly described as follows, to-wit:
PREMISES A multi purpose office, warehouse and industrial building
containing a 9,660 s.f. portion of a 25,967 s.f. building, more
or less and leasehold improvements. Located at 405 Tasman Drive,
and more particularly described in Exhibit "A" attached hereto
and incorporated herein by reference. Also, included are (38)
thirty-eight parking spaces.
TERM The term shall be for twenty-four (24) months commencing on the
1st day of March, 1994 and ending on the 29th day of February,
1996 , at the total rent sum of
RENTAL One Hundred Fifty-seven Thousand Six Hundred Fifty-one Dollars
and twenty cents ($157,651.20)
Dollars, payable in monthly installments of
Six Thousand Five Hundred Sixty-eight Dollars and eighty
cents
($6,568.80) Dollars on or before the first day of each calendar
month during the term hereof. Said rental shall be paid in lawful
money of the United States of America, without offset or
deduction, and shall be paid to Lessor at such place or places as
may be designated from time to time by Lessor. Rent for any
period less than a calendar month shall be a pro rata portion of
the monthly installment.
Concurrently with Lessee's execution of this Lease, Lessee shall
pay to Lessor the sum of
Six Thousand Five Hundred Sixty-eight Dollars and eighty
cents
($6,568.80) Dollars as prepaid rent for the period of March 1,
1994 to March 31, 1994 Concurrently with Lessee's execution of
this Lease, Lessee has deposited with Lessor the sum of
Six Thousand Five Hundred Sixty-eight Dollars and eighty
cents
SECURITY
DEPOSIT ($6,568.80) Dollars as a security deposit. If Lessee defaults
with respect to any provisions of this Lease, including but not
limited to the provisions relating to payment of rent or other
charges, Lessor may, to the extent reasonably necessary to remedy
Lessee's default, use all or any part of said deposit for the
payment of rent or other charges in default or the payment of any
other amount which Lessor may spend or become obligated to spend
by reason or Lessee's default or to compensate Lessor for any
other loss or damage which Lessor may suffer by reason of
Lessee's default. If any portion of said deposit is so used or
applied, Lessee shall, within ten (10) days after written demand
therefor, deposit cash with Lessor in an amount sufficient to
restore said deposit to the full amount hereinabove stated and
shall pay to Lessor such other sums as shall be necessary to
reimburse Lessor for any sums paid by Lessor. If Lessee shall
fully and faithfully perform every provision of this Lease to be
performed by it, said deposit shall be returned to Lessee within
five (5) days after the expiration of the term hereof. In the
event of termination of Lessor's interest in this Lease, Lessor
shall transfer said deposit to Lessor's successor in interest.
Page 1 of 5
CHARGES Lessee hereby acknowledges that late payment by Lessee to Lessor
of rent and other sums due hereunder will cause Lessor to incur
costs not contemplated by this Lease, the exact amount of which
will be extremely difficult to ascertain. Such costs include, but
are not limited to processing and accounting charges, and late
charges, which may be imposed on Lessor by the terms of any
mortgage or trust deed covering the Premises. Accordingly, if any
installment of rent or any other sum due from Lessee shall not be
received by Lessor or Lessor's designee within ten (10) days
after such amount shall be due Lessee shall pay to Lessor a late
charge equal to five (5%) percent of such overdue amount. The
parties hereby agree that such late charge represents a fair and
reasonable estimate of the costs Lessor will incur by reason of
late payment by Lessee. Acceptance of such late charge by Lessor
shall in no event constitute a waiver of Lessee's default with
respect to such overdue amount, nor prevent Lessor from
exercising any of the other rights and remedies granted
hereunder.
IT IS FURTHER MUTUALLY AGREED BETWEEN THE PARTIES AS
FOLLOWS:
POSSESSION 1. If Lessor, for any reason whatsoever, cannot deliver
possession of the said premises to Lessee at the commencement of
the said term, as hereinbefore specified, this lease shall not be
void or voidable, nor shall Lessor be liable to Lessee for any
loss or damage resulting therefrom; but in that event the
commencement and termination dates of the lease and all other
dates affected thereby shall be revised to conform to the date of
Lessor's delivery of possession. The above is however,subject to
the provision that the period of delay of delivery of the
premises shall not exceed Seven (7) days from the commencement
date herein. If the period of delay of delivery exceeds the
foregoing, Lessee, at his or its option may cancel this Lease and
declare it null and void. Provided further, that if under this
Lease, Lessor is required to do any construction or remodeling
work, than the data on which the Lessee has the right to cancel
shall be extended to a later date by a number of working days
equal to the number of working days during which work necessary
to prepare the premises for occupancy is delayed by changes
requested by Lessee, strikes, boycott, shortage of materials,
governmental regulations affecting construction, acts of God,
inclement weather preventing construction, or other events of
like nature beyond the control and without the negligence of
Lessor. If under this Lease Lessor is required to do any
construction or remodeling work, then possession shall not be
deemed tendered and the term shall not start, nor shall any
rentals commence under this Lease, until the completion of Lessor
improvements.
ACCEPTANCE
OF PREMISES
AND COVE-
NANTS TO
SURRENDER 2. By entry hereunder, Lessee accepts the premises as being in
good and sanitary order, condition and repair and accepts the
building and the other improvements in their present condition.
Any exceptions to the foregoing must be by written agreement
executed by Lessor and Lessee. The Lessee agrees on the last day
of the term hereof, or on the sooner termination of this lease,
to surrender the premises unto Lessor in good condition and
repair. The interior walls of all office and warehouse areas, the
floors of all office and warehouse areas, all suspended ceilings
and any carpeting are to be cleaned. Lessee also agrees to
surrender unto Lessor all alterations, additions, and
improvements whih may have been made in, to or on the premises by
Lessee, except that Lessee shall ascertain from Lessor within
thirty (30) days before the end of the term of this lease whether
Lessor desires to have the premises or any part or parts thereof
restored to their condition as of the commencement of this Lease,
excluding normal wear and tear, if Lessor shall so desire, then
Lessee shall restore said premises or such part or parts thereof
before the termination of this Lease at Lessee's sole cost and
expense. Lessee on or before the end of the term or sooner
termination of this Lease, shall remove his or its personal
property and trade fixtures from the premises, and all property
not so removed shall be deemed to be abandoned by Lessee. If the
premises be 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. Not
withstanding the above, Lessor agrees to allow any reasonable
alterations and improvements and will notify Lessee at time of
approval if they are to be removed on expiration.
USES
PROHIBITED 3. Lessee shall not commit, or suffer to be committed, any waste
upon the said premises, or any nuisance, or other act or thing
which may disturb the quiet enjoyment of any other tenant in or
around the buildings in which the demised premises may be located
or allow any sale by auction upon the premises, or allow the
premises to be used for any improper, immoral, unlawful or
objectionable purpose, or place any loads upon the floor, walls,
or ceiling which endanger the structure, or use any machinery or
apparatus which will in any manner vibrate or shake the premises
or the building of which it is a part, or place any harmful
liquids in the drainage system of the building. No waste
materials or refuse shall be dumped upon or permitted to remain
upon any part of the leased premises outside of the building
proper. No materials, supplies, equipment, finished products or
semi-finished products, raw materials or articles of any nature
shall be stored upon or permitted to remain on any portion of the
leased premises outside of the buildings proper.
ALTERA-
TIONS AND
ADDITIONS 4. Lessee shall not make, or suffer to be made, any alteration or
addition to the said premises, or any part thereof, without the
written consent of Lessor first had and obtained by Lessee; any
addition or alteration to the said premises, except movable
furniture and trade fixtures, shall become at once a part of the
realty and belong to Lessor. Alterations and additions which are
not to be deemed as trade fixtures shall include heating,
lighting, electrical systems, air conditioning, partitioning,
carpeting, or any other installation which has become an integral
part or the leased premises, Lessee agrees that he or it will not
proceed to make such alterations or additions, after having
obtained consent from Lessor to do so, until three (3) days from
the receipt of such consent, in order that Lessor may post
appropriate notices to avoid any liability to contractors or
material suppliers for payment for Lessee's improvements. Lessee
will at all times permit such notices to be posted and to remain
posted until the completion of work.
Page 2 of 5
HAZARD
INSURANCE 6. Lessee shall not use, or permit said premises, or any part
thereof, to be used, for tiny purpose other than that for which
the said premises are hereby based; and no use shall be made or
permitted to be made of the said premises, nor acts done, which
will 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 said premises, any article
which may be prohibited by the standard form of fire insurance
policies. Lessee shall, at his sole cost and expense, comply with
any and all requirements, pertaining to said premises, of any
insurance organization or company, necessary for the maintenance
of reasonable fire and public liability insurance, covering said
building and appurtenances. The Lessor agrees to purchase and
keep in force fire, earthquake, and extended coverage insurance
covering the leased premises in amounts not to exceed the actual
insurable value of said premises as determined by Lessor's
insurance company's appraisers. The Lessee agrees to pay to the
Lessor as additional rent, on demand, the full cost of said
insurance as evidenced by insurance billings to the Lessor. If
said insurance billings cover the entire building, and this Lease
does not cover the entire building, the insurance premiums
allocated to the based premises shall be pro-rated on a square
footage or other equitable basis, as calculated by Lessor. It is
understood and agreed that Lessee's obligation under this
paragraph will be pro-rated to reflect the commencement and
termination dates of this Lease. Lessor and Lessee hereby waive
any rights each may have against the other on account of any loss
or damage occasioned to the Lessor or the Lessee as the case may
be, or to the Premises or its contents, and which may arise from
any risk generally covered by fire and extended coverage
insurance. The parties shall obtain from their respective
insurance companies insuring the property a waiver of any right
of subrogation which said insurance company may have against the
Lessor or the Lessen as the case may be.
ABANDON-
MENT 7. Lessee shall not vacate or abandon the premises at any time
during the process of law, or otherwise, any personal property
belonging to Lessee and left on the term; and if Lessee shall
abandon, vacate or surrender said premises, or be disposessed by
premises shall be deemed to be abandoned, at the option of
Lessor, except such property as may be mortgaged to Lessor.
FREE
FROM LIENS 8. Lessee shall keep the demised premises and the property in
which the demised premises are situated, free from any liens
arising out of any work performed, materials furnished, or
obligations incurred by Lessee.
COMPLI-
ANCE WITH
GOVERN-
MENTAL
REGULA-
TIONS 9. Lessee shall, at his sole cost and expense, comply with all
of the requirements of all Municipal, State and Federal
authorities now in force, or which may hereafter be in force,
pertaining to the said premises, and shall faithfully observe in
the use of the premises all Municipal ordinanes and State and
Federal statutes now in force or which may hereafter be in force.
The judgement of any court of competent jurisdiction, or the
admission of Lessee in any action or proceeding against Lessen
whether Lessor be a party thereto or not, that Lessee has
violated any such ordinance or statute in the use of the
Premises, shall be conclusive of that fact as between Lessee, and
Lessee.
*Excluding any acts of negligence or willful misconduct on the
part of Lessor or Lessor's agent.
LIABILITY
AGENT
INSURANCE l0. Lessee, as a material part of the consideration to be
rendered to Lessor, hereby waives all claims against Lessor for
damages to good, wares and merchandise, and all other personal
property in, upon or about said premises and for injuries to
persons in a about said premises, Rom any cause arising at any
time. and Lessee will hold Lessor exempt and harmless from any
damage or injury to any person, or to the goods, wares and
merchandise and all other personal property of any person.
arising from the use of the premises by Lessee or from the
failure of Lessee to keep the premises in good condition and
repair, as herein provided, Lessee shall secure and keep in force
a public liability insurance and property damage policy covering
the based premises, including parking areas, insuring the Lessee
and naming Lessor as an additional insured. A copy of said policy
shall be delivered to Lessor and minimum limits of coverage
thereof shall be $ 2,000,000.00 for multiple injuries, and $
1,000,000. 00 property damage, and Lessee shall obtain a
written obligation on the part of the insurer to notify Lessor in
writing before any cancellation thereof.
ADVERTISE
MENTS AND
SIGNS 11. Lessee will not place or permit to be placed, in, upon or
about the said premises any unusual or extraordinary signs, or
any signs not approved by the city or other governing authority.
The Lessee will not place, or permit to be placed, upon the
premises, any signs, advertisements or notices without the
written consent of the Lessor, and such consent will not be
unreasonably withheld, Any sign so placed on the premises shall
be so placed upon the understanding and agreement that Lessee
will remove same at the termination of the tenancy herein
created, and repair any damage or injury to the premises caused
thereby, and if not so removed by Lessee then Lessor may have
same so removed at Lessee's expense.
UTILITIES 12. Lessee shall pay for all water, gas, heat, light, power,
telephone and other utilities supplied to the premises. If any
such services are not separately metered to Lessee, Lessee shall
pay a reasonable proportion of all charges which are jointly
metered, the determination to be made by Lessor and payment to be
made by Lessee within ten (10) days of receipt of a statement for
such charges. Any charges for sewer usage or related fees shall
be the obligation of Lessee and paid for by the Lessee.
ATTORNEY'S
FEES 13. In case suit should be brought for the possession of the
premises for the recovery of any sum due hereunder or because of
the breach of any other covenant herein, the losing party shall
pay to the prevailing party a reasonable attorney's fee which
shall be deemed to have accrued on the commencement of such
action and shall be enforceable whether, or not such action is
prosecuted to judgement.
DEFAULT 14.1 The occurrence of any of the following shall constitute a
material default and breach of his Lease by Lessee: a) Any
failure by Lessee to pay the rental or to make any other payment
required to be made by Lessee hereunder (where such failure
continued for ten (10) days after written notice thereof by
Lessor to Lessee; b) The abandonment or vacation of the Premises
by Lessee; c) A failure by Lessee to observe and perform any
other provision of this lease to be observed or performed by
Lessee, where such failure continues for thirty days after
written notice thereof by Lessor to Lessee; provided, however,
that if the nature of such default is such that the same cannot
reasonably be cured within such thirty (30) day period Lessee
shall not be deemed to be in default if Lessee shall within such
period commence such cure and thereafter diligently prosecute the
same to completion; d) The making by
Lessee of any general assignment for the benefit of creditors;
the filing by or against Lessee of a petition to have Lessee
adjudged a bankrupt or of a petition for reorganization or
arrangement under any law relating to bankruptcy (unless, in the
case of a petition filed against Lessen the same is dismissed
within sixty (60) days); the appointment of a trustee or receiver
to take possession of substantially all of Lessee's assets
located at the Premises or of Lessee's interest in this Lease,
where possession is not restored to Lessee within thirty (30)
days, or the attachment, execution or other judicial seizure of
substantially all of Lessee's assets located at the Promises or
of Lessee's interest in this Lease, where such seizure is not
discharged within thirty (30) days.
SURRENDER
OF LEASE 14.2 In the event of any such default by Lessee, then in addition
to any other remedies available to Lessor at law or in equity,
Lessor shall have the immediate option to terminate this Lease
and all rights of Lessee hereunder by giving written notice of
such intention to terminate. In the event that Lessor shall elect
to so terminate this Lease then Lessor may recover from Lessee;
a) the worth at the time of award of any unpaid rent which had
been earned at the time of such termination; plus b) the worth at
the time of award of the amount by which the unpaid rent would
have been earned after termination until the time of award
exceeds the amount of such rental loss Lessee proves could have
been reasonably avoided; plus c) 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 Lessee proves could be reasonably avoided; plus d) any
other amount necessary to compensate Lessor for all the detriment
proximately caused by Lessee's failure to perform his obligations
under this Lease or which in the ordinary course of things would
be likely to result therefrom, and e) at Lessor's election, such
other amounts in addition to or in lieu of the foregoing as may
be permitted from time to time by applicable California law. The
term "rent", as used herein, shall be deemed to be and to mean
the minimum annual rental and all other sums required to be paid
by Lessee pursuant to the terms of this Lease. As used in (a) and
(b) above, the "worth at the time of award" is computed by
allowing interest at the rate of ten (10%) percent per annum. As
used in (c) above, the "worth at the time of award" is computed
by discounting such amount at the discount rate of the Federal
Reserve Bank of San Francisco at the time of award plus one (1%)
percent.
Page 3 of 5
14.3 In the event of any such default by Lessee, Lessor shall so
have the right, with or without terminating this Lease, to re-
enter the Premises and remove all persons and property from the
Premises; such property may be removed and stored in a public
warehouse or elsewhere at the cost of and for the account of
Lessee.
14.4 In the event of the vacation or abandonment of the Promises
by Lessee or in the event that Lessor shall elect to re-enter as
provided in paragraph 14.3 above or shall take possession of the
Premises pursuant to legal proceeding or pursuant to any notice
provided by law, then if Lessor does not elect to terminate this
Lease as provided in paragraph 141 above, then Lessor may from
time to time, without terminating this Lease, either recover all
rental as it becomes due or relet to Premises or any part thereof
for such term or terms and at such redo or rentals and upon such
other terms and conditions as Lessor in its sole discretion may
deem advisable with to right to make alterations and repairs to
the Premises. In the event that Lessor shall elect to so relet,
then rentals received by Lessor front such reletting shall be
applied; first, to the payment of any indebtedness other than
rent duo hereunder from Lessee to Lessor; second, to the payment
of any cost of such reletting; third, to the payment of the cost
of any alterations and repairs to the Premises; fourth, to the
payment of rent due and unpaid hereunder; and the residue, if
any, shall be held by Lessor and applied in payment of future
rent as the same may become due and payable hereunder. Should
that portion of such rentals received from such reletting during
any month, which is applied by the payment of rent hereunder, be
less then to rent payable during that month by Lessee hereunder,
then Lessee shall pay such deficiency to Lessor immediately upon
demand therefor by Lessor. Such deficiency shall be calculated
and paid monthly. Lessee shall also pay to Lessor, as soon as
ascertained, any costs and expenses incurred by Lessor in such
reletting or in making such alterations and repairs not covered
by the rentals received front such reletting.
14.5 No re-entry or taking possession of the Premises by Lessor
pursuant to 14.3 or 14.4 of this Article 14 shall be construed as
an election to terminate this Lease unless a written notice of
such intention be given to Lessee or unless the termination
thereof be decreed by a court of competent jurisdiction.
Notwithstanding any roletting without termination by Lessor
because of any default by Lessee, Lessor may at any time after
such reletting elect to terminate this lease, for any such
default.
SURRENDER
OF LEASE 15. The voluntary or other surrender of this Lease by Lessee, or
a mutual cancellation thereof, shall not work a merger, and
shall, at the option of Lessor, terminate all or any existing
subleases or subtenances, or may, at the option of Lesson operate
as an assignment to him of any or all such subleases or
subtenancies.
TAXES 16. Lessee shall be liable for all taxes levied against its
personal property and trade or business fixtures, and agrees to
pay, as additional rental, all real estate taxes and special
assessment installment as they appear on the city and county tax
bills during the Lease term, and as they become due. If said
taxes and assessments are assessed against the entire building
and building site, and this lease does not cover entire building
or building site, the taxes laid assessment Installments
allocated to the leased premises shall be pro-rated on a square
footage or other equitable basis, as calculated by Lessor. It is
understood and agreed that Lessee's obligation under this
paragraph will be pro-rated to reflect the commencement and
termination dates of this Lease.
NOTICES 17. All notices 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 promises,
whether or not Lessee has departed from, abandoned or vacated the
premises.
ENTRY BY
LESSOR 18. Lessee shall permit Lessor and his agents to enter Into and
upon said premises at all reasonable times subject to any
security regulations of Lessee for the purpose of inspecting the
same or for the purpose of maintaining the building in which said
premises are situated, or for the purpose of making repairs,
alterations or additions to any other portion of said building.
including the erection and maintenance of such scaffolding,
canopies, fences and props as may be required without any rebate
of rent and without any liability to Lessee for any loss of
occupation or quiet enjoyment of the premises thereby occasioned:
and shall permit Lessor and his agents, at any time within ninety
(90) days prior to the expiration of this Lease, to place upon
said premises any usual or ordinary "For Sale" or "to lease"
signs and exhibit the promises to prospective tenants at
reasonable hours.
DESTRUC.
ION OF
PREMISSES 19. In the event of a partial destruction of the said premisses
during the said term from any cause, Lessor shall forthwith
repair the same, provided such repairs can be made within (90)
days under the laws and regulations of State, Federal, County or
Municipal authorities, but such partial destruction shall in no
way annul or void this lease, except that Lessee shall be
entitled to a proportionate reduction of rent until such repairs
are complete, such proportionate reduction to be based upon the
extent to which the making of such repairs shall interfere with
the business carried on by Lessee in the said premisses. If such
repairs cannot be made in ninety (90) days, Lessor may, at his
option, make same within a reasonable time this Lease continuing
in full force and effect and the rent to be proportionately
reduced as aforesaid in this paragraph provided. In the event
that Lessor does not so elect to make such repairs which cannot
be made in ninety (90) days, or such repairs cannot be made under
such laws and regulations, this Lease may be terminated at the
option of either party. In respect to any partial destruction
which Lessor is obligated to repair or may elect to repair under
the terms of this paragraph, the provision of Section 1932,
Subdivision 2, and of Section 1933, Subdivision 4, of the Civil
Code of the State of California are waived by Lessee. In the
event that the building in which the demised premises may be
situated be destroyed to the extent of not less than 33-1/3% of
the replacement cost thereof, Lessor may elect to terminate this
Lease, whether the demised premises be injured or not. A total
destruction of the building in which the said premisses may be
situated shall terminate this Lease. In the event of any dispute
between Lessor and Lessee relative to the provisions of this
paragraph, they shall each select an arbitrator, the two
arbitrators so selected shall select a third arbitrator and the
three arbitrators so selected shall hear and determine the
controversy and their decision thereon shall be final and binding
upon both Lessor and Lessee, who shall bear the cost of such
arbitration equally between them.
ASSIGN-
MENT
AND
SUBLET-
TING 20. Lessee or any part thereof or any right or privilege
appurtenant thereto, or suffer any other person (a bona fide
subsidiary or affiliate or Lessee excepted to occupy or use the
said premises, or any portion thereof, without the written
consent of Lessor first had and obtained, and a consent to one
assignment, subletting, occupation or use by any other person,
shall not be deemed to be a consent to any subsequent assignment,
subletting, occupation or use by another person. Any such
assignment or subletting without such consent shall be void, and
shall, at the option of the Lessor, terminate this Lease,
providing Lessor has not unreasonably witheld such consent. This
Lease shall not, nor shall any interest therein be assignable as
to the interest of Lessee. by operation of law, without the
written consent of Lessor. If Lessee desires to assign its rights
under this Lease or to sublet, all or a portion of the demisedd
promises to a party other than a bona fide subsidiary or
affiliate* of Lessee, Lessee shall first notify Lessor of the
proposed terms and conditions of such assignment or subletting.
Lessor shall have the right of first refusal to enter into a
direct Lessor-Lessee relationship with such party under such
proposed terms and conditions, in which event Lessee shall be
relieved of its obligations hereunder to the extent of the
Lessor-Lessee relationship entered into between Lessor and such
third party.
CONDEM-
NATION 21. If any part of the premises shall be taken for any public or
quasi-public use, under any statute or by right of eminent domain
or private purchase in lieu thereof, and a part thereof remains
which is susceptible of occupation hereunder, this Lease shall as
to the part so taken, terminate as of the date title shall vest
in the condemnor or purchaser, and the rent payable hereunder
shall be adjusted so that to Lessee shall be required to pay for
the remainder of the term only such portion of such rent as the
value of the part remaining after such taking bears to the value
of the entire premises prior to such taking; but in such event
Lessor shall have the option to terminate this Lease as of the
date when title to the part so taken vests in the condemnor or
purchaser. If all of the premises, or such part thereof be taken
so that there does not remain a portion susceptible for
occupation hereunder, this Lease shall thereupon terminate. If a
part or all of the promises be taken, all compensation awarded
upon such taking shall go to the Lessor and the Lessee shall have
no claim thereto.
Page 4 of 5
EFFECTS
OF
CONVEYANCE 22. The term "Lessor" as used in this Lease, means only the owner
for the time being of the land and building, containing the
premises, so that, in the event of any sale of said land or
building, or in the event of a Lease of said building, the Lessor
shall be and hereby is entirely freed and relieved of all
covenants and obligations of the Lessor hereunder and it shall be
deemed and construed, without further agreement between the
parties and the purchaser at any such sale, or the Lessee of the
building, that he purchaser or Lessee of the building has assumed
and agreed to carry out any and all covenants and obligations of
the Lessor hereunder. If any security be given by the Lessee to
secure the faithful performance of all or any of the covenants of
this Lease on the part of Lessee, the Lessor shall transfer and
deliver the security, as such, to the purchaser at any such sale
or the Lessee of the building, and thereupon the Lessor shall be
discharged from any further liability in reference thereto.
SUBORDI-
NATION 23. This Lease, in the event Lessor so notifies Lessee in
writing, shall be subordinate to any ground Lease, deed of trust,
or other hypothecation for security now or hereafter placed upon
the real property of which the Premises are a part and to any and
all advances made on the security thereof and too renewals,
modifications, replacements and extensions thereof. Lessee agrees
to promptly execute any documents which may be required to
effectuate such subordination. Notwithstanding such
subordination, Lessee's right to quiet possession of the Premises
shall not be disturbed if Lessee is not in default and so long as
Lessee shall pay the rent and observe and perform all of the
provisions of this Lease,
WAIVER 24. The waiver by Lessor 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 he
same or any other term, covenant or condition therein contained.
The subsequent acceptance of rent hereunder by Lessor shall not
be deemed to be a waiver of any preceding breach by Lessee 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.
HOLDING
OVER 25. Any holding over after the expiration of the said term, with
the consent of Lessor, shall be construed to be a tenancy from
month to month, at a rental to be negotiated by Lessor and Lessee
prior to the expiration of said term, and shall otherwise be on
the terms and conditions herein specified, so far as applicable.
SUCCES-
SORS AND
ASSIGNS 26. The covenants and conditions herein contained shall, subject
to the provisions as to assignment, apply to and bind the heirs,
successors, executors, administrators and assigns of all of the
parties hereto; and all of tile parties hereto shall be jointly
and severally liable hereunder.
ESTOPPEL
CERTIF
ICATES 27. Lessee shall at any time during the term of this Lease, upon
not less than five (5) days prior written notice from Lessor,
execute and deliver to Lessor a statement in writing certifying
that this Lease is unmodified and in full force and effect (or,
if modified, stating the nature of such modification) and the
date to which the rent and other charges are paid in advance, if
any,
and acknowledging that there are not, to Lessee's knowledge, any
uncured defaults on the part of Lessor hereunder or specifying
such defaults if they are claimed. Any such statement may be
conclusively relied upon by any prospective purchaser or
encumbrancer of the Premises. Lessee's failure to deliver such
statement within such time shall be conclusive upon the Lessee
that (a) this Lease is in full force and effect, without
modification except as may be represented by Lessor; (b) there
are no uncured defaults in Lessor's performance.
TIME 28. Time is of the essence of this Lease.
MARGINAL
CAPTIONS 29. The marginal headings or 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. This
instrument contains all of the agreements and conditions made
between the parties hereto and may not be modified orally or in
any other manner than by an agreement in writing signed by all of
the parties hereto or their respective successors in interest.
Paragraphs 30 through 41 are included herein and hereby
incorporated by this reference
IN WITNESS WHEREOF, Lessor and Lessee have executed these
presents, the day and year first above written.
LESSOR LESSEE
Berg Family Partnership Pacific Pay Video
Page 5 of 5 (general lease form not shown)
ADDENDUM TO LEASE
Dated February 17, 1994
By and Between Berg Family Partnership
and Pacific Pay Video
Paragraph #2 of Lease agreement, page 2 continued:
Notwithstanding the foregoing, Lessee accepts the Premises "as is". Lessor
represents and warrants that as of the commencement date of the Lease the roof,
HVAC systems, electrical system, and plumbing are in good repair and working
condition. Lessor agrees to provide the Premises to Tenant in good condition
and repair. PPV proposes that within five (5) days of PPV's occupancy Lessor
and PPV perform a walk through of the Premises in order to determine what items
need to be addressed relative to the condition of the Premises.
Paragraph #4 of Lease Agreement, page 2 continued:
Tenant may make any alterations up to $15,000, not involving structural changes,
without Landlord approval. Tenant to remove such improvements if requested by
Landlord at Lease termination.
Paragraph #5 of Lease Agreement, page 2 continued:
Lessor, at Lessee's sole cost, shall maintain and repair roof and keep the
same in good working order and condition during the term of the Lease, Lessor
will have a service contract between a licensed reputable roof contractor to
perform semiannual maintenance to make repairs,
Immediately prior to Lease Termination, Lessee to provide Lessor with
certification by a knowledgeable company officer that lessee, its officers,
partners, employees, agents, invitees or other parties associated with Lessee,
to the best of their knowledge, have not allowed the Premises to be contaminated
by toxic or hazardous waste or materials.
Immediately prior to termination of Lessee's obligations under this Lease,
Lessee shall remove any, or all, non-general purpose improvements not installed
by lessor, if requested by Lessor.
Landlord agrees during term of initial lease, landlord will pay the cost in
excess of $700.00 to repair any single item in the HVAC, plumbing or electrical
systems after the Tenant has paid the first $1,000 provided that (i) the failure
or repair is not caused by the negligence, failure to properly maintain, or
misconduct of Tenant or Tenant's Agents The intent of this section is to limit
the exposure of Tenant for any major single item failures, that occur during the
above period, such as compressor, transformers and the like and not to make
Landlord liable for a number of small failures that are bundled into one
billing. Landlord will pay any roof repair cost inexcess of $1,000 during the
term if not caused or related to actions of Tenant.
Paragraph #6 of Lease agreement, Page 3 continued
Lessor shall maintain in full force and effect, rental abatement insurance
against abatement or loss of Rent in case of fire or other casualty, in an
amount at least equal to the amount of the Rent payable by Lessee during the
next ensuing one (1) year, as reasonably determined by Lessor, Lessee to
reimburse Lessor for full cost of said rental abatement insurance. Where Lessee
is responsible for purchasing and keeping in force insurance in this paragraph,
Lessee's insurance coverage shall name Lessor as an additional insured and
provide Lessor with an endorsed copy of said insurance.
Paragraph #9 of Lease Agreement, page 3 continued:
Tenant shall have no obligation to make any modifications to Premises as a
result of any existing laws, codes or regulation unless as a result of Tenants
modifications or unique usage by Tenant.
Paragraph #19 of Lease Agreement, Page 4 continued.
Notwithstanding the above, Lessor is only obligated to repair or rebuild to
the extent of available insurance proceeds. Should Lessor determine that
insufficient or no insurance proceeds be available for repair or reconstruction
of Premises, Lessor, at its option, may terminate the Lease.
Lessee shall have the right to terminate the Lease if destruction to building is
over 33 1/3rd percent of total or if damages are to critical research areas
which are necessary for Lessee to continue its technology development program
and if damages to building are not repaired within 90 days.
30. Landlord and Tenant may be used various places in this lease as substitute
for Lessor and Lessee respectively.
31. HAZARD INSURANCE. As a condition of Lessor agreeing to waive the
requirement for earthquake insurance, Lessee agrees that it will pay, as
additional rent, an amount not to exceed $2,500.00 per year for earthquake
insurance if Lessor desires to obtain some form of earthquake insurance in the
future, if and when available, on terms acceptable to Lessor.
Provided Lessor is carrying earthquake insurance, Lessee shall pay any
deductible up to $1,500.00 per claim, but shall not be obligated for any
deductible in excess of $1,500.00 per claim.
32. Not Applicable.
33. TAXES. Lessee, at its cost, shall have the right, at any time, to seek a
reduction in the assessed valuation of the premises or to contest any real
property taxes that are to be paid by Lessee. If Lessee seeks a reduction or
contests the real property taxes, the failure on Lessee's part to pay the real
property taxes shall not constitute a default as long as Lessee complies with
the provisions of this paragraph and posts a bond or Letter of Credit payable to
Lessor for all delinquent taxes and proposed penalties. Lessor shall not be
required to join in any proceeding or contest brought by Lessee unless the
provisions of any law requires that the proceeding or contest be brought by or
in the name of Lessor or any owner of the Premises. In that case, Lessor shall
join in the proceeding or contest or permit it to be brought in Lessor's name as
long as Lessor is not required to bear any cost. Lessee, on final determination
of the proceeding or contest, shall immediately pay or discharge any decision or
judgment rendered, together with all costs, charges, interest and penalties
incidental to the decision or judgment. Tax bills will be sent no the address in
the Notice Section, Article #17. If at any time during the term of this Lease a
tax or excise on rents or other tax, however described, is levied or assessed
against Lessor, as substitute in whole or in part for real property taxes
assessed or imposed on the premises Lessee shall pay before delinquency such tax
or excise on rents or such other tax to the extent that such tax or excise on
rents or such other tax is substitute in whole or in part for real property
taxes on the premises. In the event that a tax or excise on rents is levied or
assessed against Lessor, as a substitute in whole or in part for taxes assessed
or imposed on the premises, and the taxing authority takes the position that
Lessee cannot pay and discharge such tax on behalf of Lessor, then at the
election of Lessor, Lessor may increase the rent charged hereunder by the exact
portion of such tax which is a substitute in whole or in part for real property
taxes on the premises, and Lessee agrees to pay said portion in additional rent.
Lessee further agrees to pay any sewer or water usage fees or taxes that may be
assessed against the property as a result of Lessee's usage of premises.
34. HAZARDOUS MATERIALS,
A. As used herein, the following term shall have the following
meaning:
(1) The term "Hazardous Materials" shall mean (i)
polychlorinated biphenyls; (ii) radioactive materials: and (iii) any chemical,
material or substance now or hereafter defined as or included in the definitions
of "hazardous substance","hazardous waste" ,"hazardous material" , "extremely
hazardous waste" , "restricted hazardous waste" , or "toxic substances" or words
of similar import under any applicable laws including, without limitation, any
material or substance which is (i) defined as "hazardous waste", extremely
hazardous waste" or "restricted hazardou's waste" under Section 25115, 25117 or
15122.7, or listed pursuant to Section 25140 of the California Health and Safety
Code, Division 20, Chapter 6.5 (Hazardous Waste Control law), (ii) defined as
"hazardous substance" under Section 25316 of the California Health and Safety
Code, Division 20, Chapter 6.8 (Carpenter-Presely-Tenner Hazardous Substances
Account Act.),,, (iii) defined as "hazardous material", "hazardous substance",
or "hazardous waste" under Section 25501 of the California Health and Safety
Code, Division 20, Chapter 6.95 (Hazardous Materials Release, Response, Plans
and Inventory), (iv) defined as a "hazardous substance" under Section 25281 of
the California Health and Safety Code, Division 20, Chapter 6.7 (Underground
Storage of Hazardous Substances), (v) petroleum, (vi)asbestos, (vii) listed
under Article 9 or defined as "hazardous" or "extremely hazardous" pursuant to
Article 11 of Title 22 of the California Administrative Coder Division 4,
Chapter 20, (viii) designed as "hazardous substance" pursuant to Section 311 of
the Federal Water Pollution Control Act, 33 U.S.C. 1251 et seq. or listed
pursuant to Section 307 of the Federal Water Pollution control Act (33 U.S.C.
1317), (ix) defined as a "hazardous waste", pursuant to Section 1004 of the
Federal Resource Conservation and Recovery Act, 42 U.S.C. 6903. et seq., (x)
defined as "hazardous Substance" pursuant to Section 101 of the Comprehensive
Environmental Respibsem Compensations, and Liability Act, 42 U.S.C. 9601 et
seq., or,(xi) regulated under the Toxic Substances Control Act, 156 U.S.C, 2601
et seq.
(2) The term "Hazardous Materials Laws" shall mean any local,
state and federal laws, rules, regulations, or ordinances relating to the use,
generation, manufacture, installation, release, discharge, storage or disposal
of Hazardous Material.
(3) The term "Landlord's Agents" as used in this Section 34.0
shall mean Landlord's agents, representatives, employees, contractors,
subcontractor, directors, officers, partners and invitees,
(4) The term "Tenant's Agents" used in this Section 34.0 shall
mean Tenant's agents, representatives, employees, contractors, subcontractors,
directors, officers, partners, invitees or any other person in or about the
Premises.
B TENANTS'S RIGHT TO INVESTIGATE: Tenant shall be entitled to cause
such inspections, soils and groundwater tests, and other evaluations to be made
of the Premises as Tenant deems necessary regarding (i) the presence and use of
Hazardous Materials in or about the Premises, and (ii) the potential for
exposure to Tenant's employees and other persons to any Hazardous Materials used
and stored by previous occupants in or about the Premises. Tenant shall provide
Landlord with copies of all inspections, test and evaluation, Tenant shall
indemnify, defend and hold Landlord harmless from any cost, claim or expense
arising from such entry by Tenant or from the performance of any such
investigation by such tenant,
C. LANDLORD'S REPRESENTATIONS: Landlord hereby represents and
warrants to the best of Landlord's knowledge that the Premises are, as of the
date of this Lease, in compliance with all Hazardous Material laws,
D. TENANT'S OBLIGATION TO INDEMNIFY: Tenant, at its sole cost and
expense, shall indemnify, defend, protect and hold Landlord and Landlord's
Agents from and against any and all cost or expenses, including those described
under subparagraphs (a), (b) and (c) hereinbelow set forth, arising from or
caused in whole or in part, directly or indirectly by:
(1) Tenant's or Tenant's Agents' use, analysis, storage,
transportation, disposal, release, threatened release, discharge or generation
of Hazardous Material to, in, on, under, about or from the Premises; or
(2) Tenant's or Tenant's Agents failure to comply with Hazardous
Material laws; or
(3) Any release of Hazardous; Material to, in, on, under, about,
from or onto the Premises caused by Tenant or Tenant's Agents occurring during
the Lease Terms except ground water contamination from other parcels where the
source is from off the Premises.
The cost and expenses indemnified against include, but are not limited
to the following:
(a) Any and all claims, actions, suits, proceedings, losses,
damages, liabilities, deficiencies, forfeitures, penalties, fines, punitive
damages, cost or expenses;
(b) Any claim, action, suit or proceeding for personal injury
(including sickness, disease, or death), tangible or intangible property damage,
compensation for lost wages, business income, profits or other economic loss,
damage to the natural resources of the environment, nuisance, pollution,
contamination, leaks, spills, releases or other adverse effects on the
environment;
(c) The cost of any repair, clean-up, treatment or detoxification
of the Premises necessary to bring the Premises into compliance with all
Hazardous Material Laws, including the preparation and implementation of any
closure, disposal, remedial action, or other actions with regard to the
Premises, and expenses (including, without limitation, reasonable attorney's
fees and consultants fees, investigation and laboratory fees, court cost and
litigation expenses).
E. TENANT'S OBLIGATION TO REMEDIATE CONTAMINATION: Tenant shall, at
its sole cost and expense, promptly take any and all action necessary to
remediate contamination of the Premises by Hazardous Material by Tenant &
Tenants Agents.
F. OBLIGATION TO NOTIFY: Landlord and Tenant shall each give written
notice to the other as soon as reasonably practical of (i) any communication
received from any governmental authority concerning Hazardous Material which
relates to the Premises and (ii) any contamination of the Premises by Hazardous
Material which constitutes a violation of any Hazardous Material law.
G. SURVIVAL: The obligations of Tenant under this Paragraph 34.0
shall survive the expiration or earlier termination of this Lease,
H. CERTIFICATION AND CLOSURE: On or before the expiration or earlier
termination of the term of the Lease, Tenant shall deliver to Landlord a
certification executed by Tenant stating that, to the best of Tenant's
knowledge, there exists no violation of Hazardous Material Laws resulting from
Tenant obligation in Paragraph 34.0. If pursuant to local ordinance, state or
federal law, Tenant is required, at the expiration of the Lease Term, to submit
a closure plan for the Premises to a local, state or federal agency, then Tenant
shall furnish to Landlord a copy of such plan.
I. PRIOR HAZARDOUS MATERIALS: Lessee shall have no obligation to
clean up, or to comply with any law regarding, or to reimburse, indemnify,
defend, release or hold Lessor harmless with respect to, any Hazardous Materials
or wastes discovered on the Premises which were not introduced into, in, on or
under the Premises, or used, stored, dispose of or transported in, on or under
the Premises by Lessee or Lessee's Agents.
35. TENANT IMPROVEMENTS: Landlord shall perform and pay for the following:
a) recarpet those floors currently carpeted as shown in Exhibit "B"
b) repaint the interior walls
c) clean and wax the tiled floors
36. PRO RATA SHARE: This Lease is for a multi tenant building and the Lessor
will perform and pay for maintenance, taxes, insurance, landscaping and
utilities that are not separately metered or easily separated and Lessor will be
reimbursed by Lessee on a pro rata basis. Lessee's pro rata share of the
expenses represents 37.2% of the building.
37. APPROVALS: Whenever the Lease requires the approval or consent of either
Lessor or Lessee, such approval or consent shall not be unreasonably withheld or
delayed,
38. AUTHORITY: Each party is, corporation (or a partnership), each individual
executing the Lease on behalf of said corporation (or partnership) represents
and warrants that he or she is duly authorized to execute and deliver the Lease
on behalf of said corporation in accordance with the by-laws of said corporation
(or the partnership), that no other party's approval of consent to such
execution and delivery is require and that the Lease is binding upon said
corporation (or partnership) in accordance with its terms. Lessor and Lessee
shall, within ten (10) days after a written request therefore from Lessee and
Lessor, shall, deliver to Lessee and Lessor a certified copy of the resolution
of the board of directors of said corporation (or a certificate of the partners
of said partnership) authorizing or ratifying the execution of the Lease,
39, BROKERAGE COMMISSION: Lessor and Lessee each warrant to the other party
that MacMillan, Moore & Buchanan Inc. is the only broker involved in this
transaction, Lessor shall pay the commission due MacMillan, Moore & Buchanan per
separate agreement, Lessor and Lessee further warrant to each other that no
other broker or finder can properly claim a right to a commission or finder's
fee based upon contract between claimant and the warranting party with respect
to the other party, Lessor and Lessee shall indemnify, defend and hold the other
party harmless from and against any loss, cost or expense, including but not
limited to attorney's fees and court cost, resulting from any claim for fee or
commission by any other broker or finder in connection with the Premises and the
Agreement resulting from the indemnifying party's actions,
40. ATTORNEYS FEE: In any action or legal proceeding brought by Lessor or
Lessee to enforce the rights or obligations created by the Lease, the prevailing
party shall be awarded its cost, including reasonable attorneys' fees,
41. EFFECT OF ADDENDUM: In the event of any inconsistency between this
Addendum and the Lease, the terms of this Addendum shall prevail.
IN WITNESS WHEREOF, Lessor and Lessee have executed this Addendum as of the day
and year first above written.
LESSOR: LESSEE
Berg Family Partnership Pacific Pay Video Limited
By: By:
Its:2/28/94 Its:2/25/94
Exhibit A
- ---------
Floor Plan of 405 Tasman Drive.
Exhibit B
- ---------
Floor Plan of 405 Tasman Drive. Plans for tile and carpet.
LEASE EXTENSION AND MODIFICATION AGREEMENT
This Lease Extension and Modification Agreement ("Agreement"), is made and
entered into this 2nd day of January, 1996 by and between Berg Family
Partnership ("Berg") and Pacific Pay Video Limited ("PPV"), a California
corporation.
RECITALS:
A. PPV currently leases from Berg approximately 9,660 square feet of space
located at 405 Tasman Drive, Sunnyvale, California (the "Premises")
pursuant to that certain lease dated February 16, 1994 (the "Lease").
B. The term of the Lease expires on February 29, 1996.
C. PPV has elected and Berg has agreed to modify the terms of the Lease
and extend the term Lease subject to the terms and conditions set forth
herein:
NOW, THEREFORE, the parties hereto agree to amend the Lease as follows:
1. TERM: The term of the Lease is hereby extended for seven (7) months
until September 30, 1996.
2. RENT: PPV shall pay to Berg as rent for the Premises during the
extended lease term, a monthly rent payable in advance on the first day of
each calendar month as follows:
February 1, 1996 - February 29, 1996 $20,586.30
March 1, 1996 - September 30, 1996 $21,262.50
3. SECURITY DEPOSIT: PPV shall increase the security deposit by
$14,693.70. The additional security deposit amount of $14,693.70 shall be
paid to Berg prior to February 1, 1996.
4. PREMISES: The "Premises" shall include 9,660 square feet of space
located at 405 Tasman Drive. On February 1, 1996, the Premises shall be
expanded to include an additional 18,690 square feet of space located in
the building that PPV currently occupies, totaling 28,350 square feet of
space and 100% of the subject building. The address for the additional
space (18,690 square feet) is commonly referred to 1190 Morse Avenue,
Sunnyvale, CA. As a material inducement to the execution and delivery of
this Agreement by Berg, PPV is leasing the additional 18,690 square feet of
space in an "AS IS" physical condition and in an "AS IS" state of repair,
except that Berg shall repair water-damaged ceiling tiles. Berg shall not
provide any improvements to the Premises or the additional 18,690 square
feet of space, provided however, Berg shall provide a new water-tight roof
for the Premises (including the additional space).
5. OPTION TO EXTEND: Berg hereby grants to PPV one (1) option to extend
the term of the Lease for a period of six (6) months (the "Option Term") on
the following terms and conditions:
(i) Lessee shall give Lessor written notice of its exercise of the
Option Term no later than June 30, 1996.
(ii) Lessee may not exercise the Option Term if Lessee is in default
according to the terms and conditions of the Lease.
(iii) All terms and conditions of the Lease and this Agreement shall
apply during the Option Term.
(iv) Rent for the Premises during the Option Term shall be payable
in advance on the first day of each calendar month as follows:
September 30, 1996 - March 31, 1997 $21,262.50
6. PRO RATA SHARE: Effective February 1, 1996, PPV's pro rata share shall
be increased to 100%.
7. BROKERAGE COMMISSION: Berg and PPV acknowledge that there are no
brokers involved with the terms of this Agreement and Berg shall have no
liability for any brokerage commission pursuant to this extended term.
8. LESSEE CERTIFICATION: As a condition of Berg's agreeing to the
extension of the Lease, PPV hereby certifies and confirms that as of the
date of this Agreement, PPV is not in violation of any government
regulations, ordinances, rules or laws, including those pertaining to
Hazardous Waste and/or Hazardous Materials.
9. RATIFICATION OF LEASE: Except as modified herein, the Lease is hereby
ratified, approved and confirmed upon all the terms, covenants, and
conditions.
BERG FAMILY PARTNERSHIP, PACIFIC PAY VIDEO LIMITED,
a California general partnership a California corporation
By:/s/Carl E. Jones By:/s/James A. Barth
Title: Authorized Agent Title:CFO
Date:1/4/96 Date:1/4/96
SECOND LEASE EXTENSION AGREEMENT
This Second Lease Extension Agreement ("Agreement"), is made and entered into
this 12th day of July, 1996 by and between Berg Family Partnership ("Berg") and
Pacific Pay Video Limited ("PPV"), a California corporation.
RECITALS:
A. PPV currently leases from Berg approximately 28,350 square feet of space
located at 405 Tasman Drive, Sunnyvale, California (the "Premises")
pursuant to that certain lease dated February 16, 1994 and that certain
lease extension and modification agreement dated January 2, 1996
(collectively referred to herein as the "Lease").
B. The term of the Lease expires on September 30, 1996.
C. PPV has elected to exercise their option to extend the term of the Lease
pursuant to Section 5 of that certain lease extension and modification
agreement dated January 2, 1996 (the "Extension") subject to the terms and
conditions set forth herein:
NOW, THEREFORE, the parties hereto agree to amend the Lease as follows:
1. TERM: The term of the Lease is hereby extended for six (6) months
until March 31, 1997 as provided for in Section 5 of the Extension.
2. RENT. PPV shall pay to Berg as rent for the Premises during this
extended term, monthly rent payable in advance on the first day of each
calendar month as follows:
October 1: 1996 - March 31, 1997 $21,262.50
3. BROKERAGE COMMISSION: Berg and PPV acknowledge that there are no
brokers involved with the terms of this Agreement and Berg shall have no
liability for any brokerage commission pursuant to this extended term.
4 LESSEE CERTIFICATION: As a condition of Berg's agreeing to this
Agreement, PPV hereby certifies and confirms that as of the date of this
Agreement, PPV is not in violation of any government regulations,
ordinances, rules or laws, including those pertaining to Hazardous Waste
and/or Hazardous Materials.
5. AUTHORITY: Each party executing this Agreement represents and warrants
that he or she is duly authorized to execute and deliver this Agreement.
If executed on behalf of a corporation, that this Agreement is executed in
accordance with the by-laws of said corporation (or a partnership that this
Agreement is executed in accordance with the partnership agreement of such
partnership), that no other party's approval or consent to such execution
and delivery is required, and that this Agreement is binding upon said
individual, corporation (or partnership) as the case may be in accordance
with its terms.
6. RATIFICATION OF LEASE: Except as modified herein, the Lease is hereby
ratified, approved and confirmed upon all the terms, covenants, and
conditions.
BERG FAMILY PARTNERSHIP, PACIFIC PAY VIDEO LIMITED,
a California general partnership a California corporation
By:/s/Carl E. Jones By: /s/ James A. Barth
Title: Authorized Agent Title:CFO
Date: 7/29/96 Date: 7/15/96