FURNITURE & EQUIPMENT LEASE
This Furniture and Equipment Lease ('Lease') is entered into as of
September 17, 1997, by and between Oracle Corporation ('Lessor'), and NETWORK
COMPUTER, INC. ('Lessee'), with reference to the following facts:
A. Lessor currently leases that certain office building located at 1000
Bridge Parkway, Redwood City, California (the 'Building') pursuant to the terms
of a lease with Westpark Investments ('Master Lease').
B. Lessor and Lessee are entering into that certain Sublease of even date
herewith (the 'Sublease') pursuant to which Lessor will sublet the Building to
Lessee for an initial term of five (5) years, subject to certain renewal and
cancellation rights set forth therein. In addition to subletting the Building
from Lessor, Lessee desires to lease from Lessor certain furniture, equipment
and furnishings owned or leased by Lessor and presently located in the Building,
and Lessor is willing to lease the same to Lessee on the terms, covenants and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the covenants herein contained, and
for other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto do hereby agree as follows:
1. LEASE. Lessor agrees to lease to Lessee and Lessee agrees to lease from
Lessor, subject to the terms, covenants and conditions herein, the items of
furniture, equipment, furnishings and other personal property described in
Exhibit A attached hereto and incorporated herein by this reference (the
'Furniture'). Lessor being the owner of the Furniture for all purposes, this
Lease is intended to constitute a true lease of the Furniture and not an
agreement for the sale of or the grant of a security interest in any Furniture.
Lessee's interest in the Furniture is limited to a leasehold.
2. TERM. The term of this Lease shall commence upon the commencement date
of the term of the Sublease referred to above and, unless earlier terminated as
provided herein, shall continue for so long as the Sublease shall remain in
effect. Upon the commencement of the term of this Lease, Lessor and Lessee shall
conduct an inspection of the Building in order to identify and inventory the
Furniture and verify its then current condition.
3. RENT. Lessee shall pay to Lessor rent for the Furniture in the amount
of $55,095.16 per month. Lessee shall commence payment of such monthly rent on
the commencement date of the term of the Sublease, which date shall be September
8, 1997, unless
otherwise determined, notwithstanding any earlier commencement of the term of
this Lease. The parties understand and acknowledge that the rent figure set
forth above is an estimate by Lessor of the rent to be payable hereunder, based
upon Lessor's preliminary estimate of the initial cost of the Furniture and the
amortization of such cost over the term of this Lease, and that Lessor shall not
know the actual initial cost of the Furniture until after the date of
commencement of the term. Accordingly, Lessor shall have the right, within six
(6) months following the date of commencement of the term of this Lease, to
deliver notice to Lessee setting forth a revised monthly rent figure payable
hereunder, together with reasonable back-up documentation supporting the
calculation of such rent figure. If such monthly rental amount is in excess of
the amount stated above, Lessee shall deliver to Lessor a reconciliation payment
of any underpayment within thirty (30) days following Lessor's delivery of such
statement; correspondingly, if such figure is less than the monthly rental
figure set forth above, Lessor shall credit any overpayments by Lessee against
Lessee's next-due payment (s) of rent hereunder. Such monthly rent shall be
payable in advance on the first day of each calendar month during the term
hereof, in lawful money of the United States (via wire transfer or other method
mutually acceptable to Lessor and Lessee), to Lessor at its offices at 500
Oracle Parkway, Box LGN2, Redwood City, California 94065, Attention: Lease
Administrator, or to such other person or at such other place as Lessor may from
time to time designate in writing. All rent and other amounts payable hereunder
shall be due and payable without any offset, deduction, prior notice or demand
and without any abatement, reduction, counterclaim or other right Lessee may
claim against Lessor.
4. CONDITION OF FURNITURE. Upon the commencement of the term of this
Lease, Lessor shall deliver the Furniture to Lessee in good order and repair,
subject to normal wear and tear. Lessee acknowledges that Lessor is not a seller
under the California Uniform Commercial Code and that Lessor makes no warranties
of any nature, including, but not limited to, warranties as to the
merchantability of the Furniture, its fitness for any particular purpose, its
installation, its size, design, capacity or condition, its quality, its
compliance with any law, rule, specification or contract or latent defects.
5. LOCATION; LESSOR'S INSPECTIONS; LABELS. All of the Furniture shall
remain at the Building and shall not be removed therefrom for any reason
whatsoever without Lessor's prior written consent. Lessor shall have the right
to enter the Building and inspect the Furniture at any time during normal
business hours and upon reasonable advance notice given to Lessee. If Lessor
supplies Lessee with labels stating that the Furniture or any item thereof is
owned by Lessor (or by a primary lessor), Lessee shall affix and keep the same
on each item of Furniture, Lessee shall not alter, deface or remove any of the
same and Lessee shall promptly replace any such labels that may be removed,
defaced or destroyed. Lessee
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shall not permit the name of any person other than Lessor (or any primary lessor
identified to Lessee) to be placed on any item of Furniture in a manner that
might be interpreted as a claim of any right, title or interest in or to such
item.
6. TITLE. Title to each item of Furniture (whether full legal title or
Lessor's interest as primary lessee) shall be and remain with Lessor at all
times, and Lessee shall at no time make any assertion to the contrary. Lessee
shall have no right, title or interest in or to any of the Furniture except its
leasehold interest solely as lessee as provided herein.
Each item of Furniture is and shall at all times remain personal
property, notwithstanding the manner in which it may now or hereafter be affixed
or attached to the Building.
7. REPAIRS AND MAINTENANCE; USE; ALTERATIONS. Lessee, at its sole expense,
shall keep the Furniture in good working order, condition and repair throughout
the term of this Lease, ordinary wear and tear excepted. Lessee represents,
warrants and agrees that all Furniture will be used solely for business purposes
and not for personal, family or household purposes. Lessee shall use the
Furniture in a careful, proper manner only for the purposes for which it is
intended to be used.
8. SURRENDER. Lessee acknowledges and agrees that each item of the
Furniture will have significant value to Lessor at the expiration or earlier
termination of the term of this Lease, and that Lessor intends to retake
possession of the Furniture at that time. Lessor shall notify Lessee of Lessor's
schedule for removal of the Furniture, and Lessee shall cooperate with Lessor in
effecting the removal of the Furniture from the Building in accordance with
Lessor's schedule. The parties shall agree upon an equitable proration of the
rent for the final month of the term hereof based upon Lessor's schedule for
removal of the Furniture.
9. RISK OF LOSS. Lessee shall at all times bear the entire risk of loss,
theft, destruction or damage, whether partial or complete and whether or not
insured, of each item of the Furniture, and of any condemnation, confiscation,
requisition, seizure, forfeiture or other taking of title to or use of each item
of Furniture, whether partial or complete, from any cause whatsoever (herein
'Loss or Damage'), except to the extent that any such Loss or Damage may result
from the negligence or willful misconduct of Lessor, or its agents, contractors
or employees; and Lessee shall indemnify and defend Lessor and hold Lessor
harmless from and against any and all Loss or Damage, except to the extent that
any such Loss or Damage may result from the negligence or willful misconduct of
Lessor, or its agents, contractors or employees, until such time as such item of
Furniture shall have been returned to Lessor and received by Lessor in
accordance with all terms and conditions of this Lease. No Loss or Damage shall
release, impair
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or otherwise affect Lessee's obligation to pay rent or any other obligation of
Lessee under this Lease. In the event of any Loss or Damage to any item of
Furniture, Lessee shall notify Lessor thereof in writing within five (5) days
after the occurrence of such Loss or Damage, and Lessee shall immediately, at
Lessee's option and at Lessee's sole expense, with respect to such item of
Furniture, (a) place the same in good working order, condition and repair, (b)
replace the same with like Furniture in good working order, condition and
repair, having equivalent value and utility and with clear title therein in
Lessor (which shall thereupon be deemed substituted for such item of Furniture
for all purposes), or (c) pay to Lessor an amount equal to the replacement cost
of such item of Furniture.
10. INSURANCE. Lessee shall, at its own expense, at all times during the
term of this Lease, insure the Furniture against risks customarily insured
against (as reasonably approved by Lessor) on similar items of furniture in an
amount not less than the full cost of replacement of the Furniture. The
insurance shall provide thirty (30) days prior written notice to Lessor in the
event of material change to or cancellation or expiration of the insurance.
Lessee shall deliver to Lessor certificates of such insurance and evidence
satisfactory to Lessor of Lessee's payment when due of all premiums on such
insurance. Without relieving Lessee of its obligations under section 9 above, in
the event of any Loss or Damage, if Lessor receives any insurance proceeds as a
consequence of being the loss payee under any insurance policy maintained by
Lessee, Lessor shall make such proceeds available to Lessee for replacement of
any items of Furniture damaged or destroyed.
11. LIENS; TAXES. During the term of this Lease, Lessee shall keep the
Furniture free of all claims, liens, charges, security interests and other
encumbrances resulting from the action of Lessee. During the term of this Lease,
Lessee shall comply with all federal, state and local laws requiring the filing
of ad valorem and other tax returns relating to the Furniture. If such returns
are required to be filed by Lessor, Lessee shall so notify Lessor in writing,
whereupon Lessee shall provide Lessor promptly on request such information as
Lessor shall require to complete such returns, and Lessor shall file such
returns. If Lessee does not pay any of the same when due, Lessor shall have the
right, but shall not be obligated, to pay the same, in which event Lessee shall
pay to Lessor on demand, as additional rent, an amount equal to all amounts paid
or expenses incurred by Lessor, together with interest thereon at the annual
rate of twelve percent or, if lower, the maximum rate that Lessor may lawfully
charge.
12. INDEMNITY. Lessee shall indemnify and defend (by counsel engaged by
Lessee, but satisfactory to Lessor) Lessor and its agents, employees, officers
and directors and hold them harmless from and against any and all claims,
liabilities, losses, damages
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and expenses, including, without limitation, all court costs and attorneys' and
expert witnesses' fees and costs, arising from or in connection with or based on
(a) the possession, condition, operation or use (by whomever operated or used)
of any of the Furniture, or (b) the performance or enforcement of any of the
terms, or any noncompliance or nonperformance of any condition, of this Lease,
except to the extent that any of the foregoing result from the negligence or
willful misconduct of Lessor, or its agents, contractors or employees, or from
any breach on the part of Lessor under any contract made by Lessor affecting any
of the Furniture. Lessee shall satisfy, pay and discharge any and all
settlements, judgments and fines that may be recovered against Lessor in
connection therewith. Lessor shall give Lessee written notice of any such claim.
13. ASSIGNMENT. Lessee expressly covenants and agrees that it shall not
assign, mortgage or encumber this Lease or sublet or lend any of the Furniture
or permit any of the Furniture to be used by anyone other than Lessee. No
assignment or sublease by Lessee shall in any event relieve or release Lessee of
or from any debt, duty, obligation or liability hereunder, and Lessee shall
remain primarily liable hereunder.
Lessor, in its sole and absolute discretion, may sell, assign,
transfer, pledge, hypothecate, grant security interests in or otherwise encumber
or dispose of this Lease or any interest herein, as a whole or in part, without
notice to Lessee. Notwithstanding any assignment by Lessor, Lessor warrants that
so long as Lessee is not in default hereunder, Lessee shall quietly enjoy use of
the Furniture subject to the terms and conditions of this Lease and, as part of
any such assignment, the assignee thereunder shall agree that Lessee's rights
hereunder in and to the Furniture shall not be disturbed so long as Lessee is
not in default hereunder. Lessor shall notify Lessee in writing of any transfer
of this Lease by Lessor; and Lessee agrees to acknowledge receipt of and comply
with any notice thereof given by Lessor in writing and to provide Lessor or its
assignee with such agreements, consents, conveyances, documents and certificates
as may be reasonably requested by Lessor or its assignee to effect, facilitate
or perfect any assignment by Lessor.
Subject to the foregoing, this Lease shall inure to the benefit of
and bind Lessor, Lessee and their respective heirs, legatees, personal
representatives, successors and assigns.
14. DELINQUENCY CHARGE. Should Lessee fail to pay any rent hereunder or
any other sum required to be paid to Lessor by Lessee on the date due, Lessee
agrees to pay to Lessor, on demand, (a) an amount equal to five percent (5%) of
such rent or other sum, and (b) all of Lessor's costs and expenses incurred or
paid in collecting the delinquent payment, with interest thereon from the date
paid by Lessor until paid by Lessee at the annual rate of
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twelve percent or, if lower, the maximum rate Lessor may lawfully charge.
15. DEFAULT. Any of the following shall constitute a 'default' hereunder:
(a) Lessee fails to pay when due any rent or any other sum required to be paid
hereunder and such failure continues for ten days from written notice thereof
from Lessor; (b) Lessee fails to observe, keep or perform any other term,
covenant or condition of this Lease and such failure continues for thirty days
from written notice thereof from Lessor; (c) Lessee becomes insolvent or admits
in writing its inability to pay or fails to pay its debts as they become due, or
makes an assignment for the benefit of its creditors, or applies for or
acquiesces in the appointment of a receiver, trustee or other custodian for any
of its properties or assets; (d) any proceeding shall be commenced by or against
Lessee for any relief which includes, or might result in, any modification of
the obligations of Lessee under this Lease or relief under any bankruptcy or
insolvency laws or other laws relating to the relief of debtors, adjustment of
indebtedness, reorganization, composition or extension, unless, in the case of
an involuntary proceeding not consented to or acquiesced in by Lessee, such
proceeding shall have been dismissed within 90 days after the same shall have
been commenced (provided that this Lease shall terminate automatically if Lessee
fails to pay any rent when due hereunder after a proceeding has been commenced
by or against Lessee under the United States Bankruptcy Code); (e) Lessee
voluntarily or involuntarily, by operation of law or otherwise, removes, sells,
transfers, assigns, grants any security interest in, pledges, hypothecates,
encumbers, parts with possession of or sublets this Lease or any Furniture, or
attempts to do so, except only as and to the extent expressly permitted hereby;
or (f) Lessee commits an event of default under the Sublease.
16. REMEDIES. On any default hereunder by Lessee, Lessor shall have the
right, but shall not be obligated, to exercise at any time or from time to time
thereafter any one or more of the following rights and remedies, any of which
rights and remedies may be exercised by Lessor without notice to or demand on
Lessee:
(a) Advance Rent. If Lessee shall have paid any rent hereunder in
advance of the due date therefor, Lessor may apply any or all thereof to any
obligation of Lessee hereunder.
(b) Recovery of Sums Due and to Become Due. In lieu of such
acceleration, Lessor may recover all rent and other amounts due as of the date
of such default and recover all rent and other sums as they accrue thereafter.
(c) Proceeding in Court. Lessor may proceed by appropriate court
action, either at law or in equity, to enforce performance by Lessee of the
terms and conditions of this Lease or
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to recover damages for the breach hereof or to regain possession of the
Furniture.
(d) Termination. Any of the foregoing actions by Lessor under this
section 16 shall not constitute a termination of this Lease or any of Lessee's
obligations under this Lease. Lessor may, in its exclusive discretion, terminate
this Lease by express written notice thereof to Lessee.
(e) Other Remedies. Lessor may pursue any other remedy available to
Lessor at law or in equity. Under all circumstances, Lessee shall also pay to
Lessor, on demand, an amount equal to any and all incidental damages sustained
by Lessor, including, without limitation, all costs of collection, repossession,
transportation, storage, repair, reconditioning, resale or other disposition of
the Furniture, all attorneys', expert witnesses' and accountants' fees and costs
(whether or not suit is commenced), court costs and other costs and expenses
incurred in exercising any rights or remedies hereunder or in enforcing any of
the terms or conditions hereof.
The discount rate for purposes of determining present value shall be
a rate equal to one percent in excess of the discount rate of the Federal
Reserve Bank of San Francisco as of the date of entry of judgment in favor of
Lessor.
The provisions of this section 16 shall not prejudice Lessor's right
to recover or prove damages for unpaid rent accrued prior to default. No remedy
referred to in this section 16 is intended to be exclusive, but each shall be
cumulative and in addition to any other remedy referred to above or otherwise
available to Lessor at law or in equity and may be exercised concurrently or
consecutively. The exercise or beginning of exercise by Lessor of any one or
more of such remedies shall not preclude the simultaneous or later exercise by
Lessor of any or all of such other remedies. Lessor's remedies shall be
available to Lessor's successors and assigns.
17. FURTHER ASSURANCES. Lessee will promptly and duly execute and deliver
to Lessor such further documents and assurances and take such further action as
Lessor may from time to time reasonably request in order more effectively to
carry out the intent and purposes of this Lease and to establish and protect the
rights, interests and remedies intended to be created in favor of Lessor
hereunder, including, without limitation, the execution and filing of financing
statements and continuation statements with respect to the Furniture and this
Lease.
18. PERFORMANCE BY LESSOR OF LESSEE'S OBLIGATIONS. If Lessee fails
promptly to perform any of its obligations under this Lease, Lessor, on written
notice to Lessee, may (but shall not be obligated to and shall not incur any
liability or obligation to Lessee or any third party for failure to) perform the
same for the
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account of Lessee without waiving Lessee's failure as a default. All sums paid
or expense or liability incurred by Lessor in such performance (including
reasonable legal fees) shall be promptly reimbursed by Lessee on demand of
Lessor, together with interest thereon from the date paid by Lessor to the date
reimbursed by Lessee at the annual rate of twelve percent or, if lower, the
maximum rate that Lessor may lawfully charge.
19. NOTICES. All notices, consents and other communications required or
permitted under this Lease shall be in writing and shall be deemed duly given
and received when delivered personally or three days after mailing if mailed by
first class or certified mail, charges or postage prepaid, properly addressed to
Lessor or Lessee, as the case may be, at its address set forth below, or at such
other address as either party shall from time to time designate by notice under
this section 19.
Lessor: Oracle Corporation
500 Oracle Parkway
Box LGN2
Redwood Shores, CA 94065
Attn: Lease Administrator
With copy to: Oracle Corporation
500 Oracle Parkway
Box 50P7
Redwood City, California 94065
Attention: Lease Administrator
Lessee: At the Building
20. ENFORCEMENT. This Lease shall be deemed to have been entered into in
the County of San Mateo, State of California, where this Lease is being signed
on behalf of Lessor and Lessee, and all performance on the part of Lessee,
including the payment of all rent and other sums due hereunder, shall be deemed
to have been required to be performed by Lessee in said County. This Lease shall
be governed by and construed, interpreted and enforced in accordance with the
laws of the State of California, without giving effect to principles of
conflicts of law or choice of law. Jurisdiction and venue in any action or
proceeding in connection with this Lease shall be in the proper state or Federal
court located in the City and County of San Francisco or the County of San
Mateo, State of California.
21. MISCELLANEOUS. The singular includes the plural and vice versa, as
applicable. The term 'Lessee' as used herein, if this Lease is signed by more
than one Lessee, means each Lessee, and their obligations and representations
hereunder shall be joint and several. The headings or captions at the beginning
of sections hereof are solely for convenience of reference and are not part of
this Lease.
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22. TIME. Time is of the essence of this Lease.
23. ENTIRE AGREEMENT; AMENDMENT; WAIVER. This Lease constitutes the entire
agreement between Lessor and Lessee and supersedes all prior or contemporaneous
agreements, promises, representations, correspondence and negotiations,
regarding the subject matter hereof. This Lease may not be amended, altered or
changed except by written agreement signed by Lessor and Lessee and supported by
new consideration. No provision hereof for the benefit of Lessor and no default
of Lessee hereunder may be waived except in writing signed by Lessor. No failure
on the part of Lessor to exercise, and no delay in exercising, any right or
remedy hereunder shall operate as a waiver thereof. Waiver by Lessor of any
provision hereof or default hereunder in any instance shall not constitute a
waiver as to any other provision, default or instance.
24. SEVERABILITY. If any provision of this Lease is held invalid, such
invalidity shall not affect the other provisions, which shall be given effect
without the invalid provision.
IN WITNESS WHEREOF, the parties hereto have executed this Furniture Lease
as of the date first above written.
LESSOR: LESSEE:
ORACLE CORPORATION NETWORK COMPUTER, INC.
By: /s/ Bruce Lange By: /s/ Jerry Baker
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Name: BRUCE LANGE Name: Jerry Baker
---------------------------- -------------------------
Title: VP AND CORPORATE TREASURER Title: CEO 9/24/97
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Furniture and Equipment Lease - Oracle Corp. and Network Computer Inc.
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