EXHIBIT 4.21
Renault & Xxxxxxx
INDUSTRIAL & COMMERCIAL REAL ESTATE
This Lease, executed in duplicate at Palo Alto, California, this
22/nd/ day of January, 2001
PARTIES by and between Middlefield Road Joint Venture
and Open TV, a Delaware corporation
hereinafter called respectively Lessor and Lessee, without regard to
number or gender.
PREMISES 1. WITNESSETH: That Lessor hereby leases to Lessee, and Lessee hires
from Lessor, those certain premises, hereinafter in this lease
designated as "the Premises", with the appurtenances, situated in the
City of Mountain View, County of Santa Xxxxx, State of California, and
more particularly described as follows, to-wit:
An approximate 36,257 square foot industrial building commonly known
as 000 Xxxx Xxxxxxxxxxx Xxxx.
USE 2. The Premises shall be used and occupied by Lessee for the purpose
of general office, sales and marketing, and Research & Development and
for no other purpose without the prior written consent of Lessor.
TERM 3. The term shall be for three (3) years and eight (8) months,
commencing on the 1/st/ day of March, 2001, and terminating on the
31st day of October, 2004.
RENTAL 4. Rent shall be payable to the Lessor without deduction or
offset at such place or places as may be designated from time to time
by the Lessor as follows:
Sixty Seven Thousand Eight Hundred and 59/100ths Dollars ($67,800.59)
($1.87/SF) shall be due on March 1, 2001 representing rental payment
for the month of March, 2001. $67,800.59 shall be due on April 1, 2001
and on the 1st day of each and every month through October 2001. Sixty
Nine Thousand Six Hundred Thirteen and 44/100ths Dollars ($69,613.44)
($1.92/SF) shall be due on November 1, 2001 and on the 1/st/ day of
each and every month through October 2002. Seventy One Thousand Four
Hundred Twenty Six and 29/100ths Dollars ($71,426.29) ($1.97/SF) shall
be due on November 1, 2002 and on the 1/st/ day of each and every
month through October 2003. Seventy Three Thousand Two Hundred Thirty
Nine and 14/100ths Dollars ($73,239.14) ($2.02/SF) shall be due on
November 1, 2003 and on the 1/st/ day of each and every month through
October, 2004.
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SECURITY 5. Lessee has deposited with Lessor $73,239.14 as security for
DEPOSIT the full and faithful performance of each and every term,
provision, covenant and condition of this Lease. In the event
Lessee defaults in respect of any of the terms, provisions,
covenants or conditions of this Lease, including, but not limited
to the payment of rent, Lessor may use, apply or retain the whole
or any part of such security for the payment of any rent in
default or for any other sum which Lessor may spend or be
required to spend by reason of Lessee's default. Should Lessee
faithfully and fully comply with all of the terms, provisions,
covenants and conditions of this Lease, the security or any
balance thereof shall be returned to Lessee or, at the option of
Lessor, to the last assignee of Lessee's interest in this Lease
at the expiration of the term hereof. Lessee shall not be
entitled to any interest on said security deposit.
POSSESSION 6. If Lessor, for any reason whatsoever, cannot deliver
possession of the Premises to Lessee at the commencement of the
said term, as hereinbefore specified, this Lease shall not be
void or voidable, nor shall Lessor, or Lessor's agents, be liable
to Lessee for any loss or damage resulting therefrom; but in that
event the commencement and termination dates of the Lease and all
other dates affected thereby shall be revised to conform to the
date of Lessor's delivery of possession. The above is, however,
subject to the provision that the period of delay of delivery of
the Premises shall not exceed __________ days from the
commencement date herein. If the period of delay of delivery
exceeds the foregoing, Lessee, at his or its option, may declare
this Lease null and void.
ACCEPTANCE 7. By entry hereunder, the Lessee accepts the Premises as being
OF in good and satisfactory condition, unless within fifteen (15)
PREMISES days after such entry Lessee shall give Lessor written notice
AND specifying in reasonable detail the respects in which the
CONSENT TO Premises were not in satisfactory condition. The Lessee agrees on
SURRENDER 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 the same good
condition as at Lessee's entry into the Premises excepting for
such wear and tear as would be normal for the period of the
Lessee's occupancy.* The Lessee, on or before the end of the term
or sooner termination of this Lease, shall remove all Lessee's
personal property and trade fixtures from the premises and all
property not so removed shall be deemed to be abandoned by the
Lessee. If the Premises be not surrendered at the end of the term
or sooner termination of this Lease, the Lessee shall indemnify
the Lessor against loss or liability resulting from delay by the
Lessee in so surrendering the Premises including, without
limitation, any claims made by any succeeding tenant founded on
such delay.
* and damage due to casualty or condemnation.
USES 8. Lessee shall not commit, or suffer to be committed, any
PROHIBITED waste upon the Premises, or any nuisance, or other act or thing
which may disturb the quiet enjoyment of any other tenant in or
around the buildings in which the Premises may be located, or
allow any sale by auction upon the Premises, or to allow the
Premises to be used for any improper, immoral, unlawful or
objectionable purpose, or place any loads upon the floor, walls,
or roof which endanger the structure, or place any harmful
liquids in the drainage system of the building. No waste
materials or refuse shall be dumped upon or permitted to remain
upon any part of the Premises outside of the building proper.
No materials, supplies, equipment, finished products or semi-
finished products, raw materials or articles of any nature shall
be stored upon or permitted to remain on any portion of the
Premises outside of the buildings proper.
*except in designated trash receptacles
(other than the initial tenant improvements)
ALTERATIONS 9. The Lessee shall make no alterations, additions or
AND improvements to the Premises or any part thereof without first
ADDITIONS (other than the initial tenant improvements) obtaining the prior
written consent of the Lessor. The Lessor may impose as a
condition to the aforesaid consent such reasonable requirements
as Lessor may deem necessary in Lessor's sole discretion,
including without limitation thereto, the manner in which the
work is done, a right of approval of the contractor by whom the
work is to be performed, the times during which it is to be
accomplished, and the requirement that upon written request of
Lessor prior to the expiration or earlier termination of the
Lease, Lessee will remove any or all improvements or additions to
**See Addendum the Premises installed at Lessee's expense.** All such
alterations, additions or improvements not specified to be
removed shall at the expiration or earlier termination of the
lease become the property of the Lessor and remain upon and be
surrendered with the Premises. All movable furniture, business
and trade fixtures, and machinery and equipment shall remain the
property of the Lessee and may be removed by the Lessee at any
time during the Lease term. Items which are not to be deemed as
movable furniture, business and trade fixtures, or machinery and
equipment shall include heating, lighting, electrical systems,
air conditioning, partitioning, carpeting, or any other
installation which has become an integral part of the Premises.*
The Lessee will at all times permit notices of non-responsibility
to be posted and to remain posted until the completion of
alterations or additions.
*but not including trade fixtures, computer equipment
installation or movable partitions. See Xxx 00.
XXXXXX- 00. Lessee shall, at Lessee's sole cost, keep and maintain the
XXXXX OF Premises and appurtenances and every part thereof,* including but
PREMISES not limited to, glazing, sidewalks, parking areas,** plumbing,
electrical systems, heating and air conditioning installations,
any store front, roof covering - unless it is not feasible to
repair the existing roof covering and a new roof covering is
required, and the interior of the Premises in good order,
condition, and repair. Lessor at Lessor's sole cost and expense
shall maintain the exterior of the walls, and structural portions
of the roof, foundations, walls, and floors except for any
repairs caused by the wrongful act of the Lessee and Lessee's
agents. The Lessor will replace the roof covering if repairs to
said covering are no longer economically feasible in the judgment
of roofing experts, and provided that said replacement is not
made necessary by acts of the Lessee and Lessee's agents. The
Lessee shall water, maintain and replace, when necessary, any
shrubbery and landscaping provided by the Lessor on the Premises.
The Lessee expressly waives the benefits of any statute now or
hereafter in effect which would otherwise afford the Lessee the
right to make repairs at Lessor's expense or to terminate this
lease because of Lessor's failure to keep the Premises in good
order, condition or repair other than those portions of the
Premises which Lessor shall maintain and repair. *other than
those portions of the Premises which Lessor shall maintain and
repair. **including resealing when necessary
See additional paragraph 37
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REVISED INSURANCE CLAUSE
This Lease Clause replaces the Insurance Clause (11.) in the
Renault & Xxxxxxx Net Lease Form.
11. Lessee shall not use, or permit the Premises, or any part
FIRE AND thereof, to be used, for any purposes other than that for which
EXTENDED the Premises are hereby leased; and no use shall be made or
COVERAGE permitted to be made on the Premises, nor acts done, which will
INSURANCE cause a cancellation of any insurance policy covering said
AND building, or any part thereof, nor shall Lessee sell or permit to
SUBROGATION 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, at his sole cost and expense, comply with
any and all requirements, pertaining to the Premises, of any
insurance organization or company, necessary for the maintenance
of reasonable fire and public liability insurance, covering said
building and appurtenances.
11.1 Lessee shall, at its expense, obtain and keep in force
during the term of this Lease a policy of comprehensive public
liability insurance insuring Lessee, Lessor, and any third
parties named by Lessor which may include Lessor's lender, as
additional insureds against any liability arising out of the
condition, use, occupancy or maintenance of the Premises. Such
insurance policy shall have a combined single limit for both
bodily injury and property damage in an amount not less than One
Million Dollars ($1,000,000.00). The limits of said insurance
shall not limit the liability of Lessee hereunder.
INSURANCE 11.2 Lessee shall, at its expense, keep in force during the
term of this Lease, a policy of fire and property damage
insurance in an "all risk" form with a sprinkler leakage
endorsement, insuring Lessee's inventory, fixtures, equipment and
personal property within the Premises for the full replacement
value thereof.
11.3 Lessor shall maintain a policy or policies of fire and
property damage insurance in an "all risk" form, with sprinkler
and, at the option of the Lessor, earthquake endorsements,
covering loss or damage to the building, including Lessee's
leasehold improvements installed with the written consent of the
Lessor, for full replacement cost or in such additional amounts
and with such coverage as Lessor deems reasonably advisable. **
Lessee's obligation to reimburse Lessor for earthquake coverage
premiums shall not exceed $37,500.00 per annum. Any deductible
amount with respect to earthquake coverage shall be payable
solely by Lessor and Lessee shall have no liability therefor.
11.4 Lessee shall pay to Lessor as additional rent, during the
term hereof, upon receipt of an invoice therefore, 100 percent of
the premiums for any insurance obtained by Lessor pursuant to
11.3 above. Lessor may obtain such insurance for the Building
separately, or together with other buildings and improvements
which Lessor elects to insure together under blanket policies of
insurance. In such case Lessee shall be liable for only such
portion of the premiums for such blanket policies as are
allocable to the Premises. It is understood and agreed that
Lessee's obligation under this paragraph shall be prorated to
reflect the Commencement Date and Expiration Date of the Lease.
11.5 Lessee and Lessor each hereby waives any and all rights
of recovery against the other, or against the officers,
directors, employees, partners;, agents and representatives of
the other, for loss of or damage to the property of the waiving
party or the property of the others under its control, to the
extent such loss or damage is insured against under any insurance
policy carried by Lessor or Lessee hereunder. Each party shall
notify their respective insurance carriers of this waiver.
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ABANDON- 12. Lessee shall not vacate or abandon the Premises at any time
MENT during the term; and if Lessee shall abandon, vacate or surrender
the 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.
See additional paragraph 41.
FREE FROM 13. Lessee shall keep the Premises and the property in which
LIENS the Premises are situated, free from any liens arising out of any
work performed, materials furnished, or obligations incurred by
Lessee. The Lessee may contest any liens filed against the
Premises through its actions provided that it posts a bond
adequate to protect Lessor's interest.
COMPLIANCE 14. Lessee shall, at his sole cost and expense, comply with all
WITH of the requirements of all Municipal, State and Federal
GOVERN- authorities now in force, or which may hereafter be in force,
MENTAL pertaining to the Premises, and shall faithfully observe in the
REGULATIONS use of the Premises all Municipal ordinances and State and
Federal statutes now in force or which may hereafter be in force.
The judgment of any court or competent jurisdiction, or the
admission of Lessee in any action or proceeding against Lessee,
whether Lessor be a party thereto or not, that Lessee has
violated any such ordinance or statute in the use of the
Premises, shall be conclusive of that fact as between Lessor and
Lessee.
See additional paragraph 38.
INDEMNI- 15. The Lessee, as a material part of the consideration to be
FICATION of rendered to the Lessor, hereby waives all claims against the
LESSOR AND Lessor for damages to goods, wares and merchandise, and all other
LESSEE'S personal property in, upon, or about the Premises and for
LIABILITY injuries to persons in or about the Premises, from any cause
INSURANCE arising at any time, excepting claims arising from the Lessor's
negligence, and the Lessee will hold the 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 the Lessee,
or from the failure of the Lessee to keep the Premises in good
condition and repair, as herein provided.
SEE REVISED INSURANCE CLAUSE ATTACHED
ADVERTISE- 16. Lessee will not place or permit to be placed, in, upon or
MENTS AND about the Premises any unusual or extraordinary signs, or any
SIGNS signs not approved by the city or other governing authority. The
Lessee will not place, or permit to be placed, upon the Premises,
any signs, advertisements or notices *without the written consent
of the Lessor first had and obtained. 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.
*visible from the exterior of the Premises
UTILITIES 17. Lessee shall pay for all water, gas, heat, light, power,
telephone service and all other service supplied to the Premises.
ATTORNEY'S 18. In case suit should be brought for the possession of the
FEES Premises, for the recovery of any sum due hereunder, or because
of the breach of any other covenant herein, the losing party
shall pay to the prevailing party a reasonable attorney's fee,
which shall be deemed to have accrued on the commencement of such
action and shall be enforceable whether or not such action is
prosecuted to judgment.
DEFAULT 19. 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 provisions of the California Civil Code, Section
1951.2. In the event of such termination of the Lease, the Lessor
may recover from the Lessee: 1) the worth at the time of award of
the unpaid rent which had been earned at the time of termination
including interest at 7% per annum; 2) the worth at the time of
award of the amount by which the unpaid rent which would have
been earned after termination until the time of award exceeds the
amount of such rental loss that the Lessee proves could have been
reasonably avoided including interest at 7% per annum; 3) the
worth at the time of award of the amount by which the unpaid rent
for 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. If the Lessor chooses not to repossess the
premises, but allows the Lessee to remain in full possession and
control of the Premies, then in accordance with provisions of the
California Civil Code, Section 1951.4, the Lessor may treat the
Lease as being in full force and effect, and may collect from the
Lessee all rents as they become due through the termination date
of the lease as specified in the lease. For the purposes of this
paragraph, the following do not constitute a termination of
Lessee's right to possession:
a) Acts of maintenance or preservation or efforts to relet the
property.
b) The appointment of a receiver on the initiative of
the Lessor to protect his interest under this Lease.
See additional paragraph 41
LATE 20. Lessee hereby acknowledges that late payment by Lessee to
CHARGES 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 ten percent (10%) 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
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Lessee's default with respect to such overdue amount, nor prevent
Lessor from exercising any of the other rights and remedies
granted hereunder.
See additional paragraph 39
SURRENDER 21. The voluntary or other surrender of this Lease by Lessee,
OF LEASE or a mutual cancellation thereof, shall not work a merger, and
shall, at the option of Lessor, terminate all 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.
TAXES 22. The Lessee shall be liable for all taxes levied against
personal property and trade or business fixtures. The Lessee also
agrees to pay, as additional rental, during the term of this
Lease and any extensions thereof, all real estate taxes plus the
yearly installments of any special assessments which are of
record or which may become of record during the term of this
lease. If said taxes and assessments are assessed against the
entire building and building site, and this Lease does not cover
the entire building or building site, the taxes and assessment
installments allocated to the Premises shall be prorated on a
square footage or other equitable basis, as calculated by the
Lessor. It is understood and agreed that the Lessee's obligation
under this paragraph will be pro-rated to reflect the
commencement and termination dates of this Lease.
NOTICES 23. All notices to be given to Lessee may be given in writing
personally or by depositing the same in the United States mail,
postage prepaid, and addressed to Lessee at the said Premises,
whether or not Lessee has departed from, abandoned or vacated the
Premises.
See additional paragraph 40
ENTRY BY 24. Lessee shall permit Lessor and his agents to enter into and
LESSOR upon the Premises at all reasonable times* for the purpose of
inspecting the same or for the purpose of maintaining the
building in which the Premises are situated, or for the purpose
of making repairs, alterations or additions to any other portion
of said building, including the erection and maintenance of such
scaffolding, canopies, fences and props as may be required
without any rebate of rent and without any liability to Lessee
for any loss of occupation or quiet enjoyment of the Premises
thereby occasioned;** and shall permit Lessor and his agents, at
any time within ninety days prior to the expiration of this
Lease, to place upon the Premises any usual or ordinary "For
Sale" or "To Lease" signs and exhibit the Premises to prospective
tenants at reasonable hours. * with prior written notice to Lesee
(other than in case of emergency) ** Lessor will use reasonable
efforts not to interfere with Lessee's use of the Premises
DESTRUCTION 25. In the event of a partial destruction of the Premises
OF PREMISES during the said term from any cause, covered by insurance Lessor
shall forthwith repair the same, provided such repairs can be
made within ninety (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
while such repairs are being made, such proportionate reduction
to be based upon the extent to which damage and the making of
such repairs shall interfere with the business carried on by
Lessee in the Premises. 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
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 Premises be injured or not. A
total destruction of the building 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.
**See Addendum
ASSIGNMENT 26. The Lessee shall not assign, transfer, or hypothecate the
AND SUBLET- leasehold estate under this Lease, or any interest therein, and
TING shall not sublet the Premises, or any part thereof, or any right
or privilege appurtenant thereto, or suffer any other person or
entity to occupy or use the Premises, or any portion thereof,
without, in each case, the prior written consent of the Lessor.*
As a condition for granting its consent to any subletting the
Lessor may require the Lessee to agree to pay to the Lessor, as
additional rental, all 50% of rents received by the Lessee from
its Sublessee which are in excess of the amount payable by the
Lessee to the Lessor hereunder. The Lessee shall, by thirty (30)
days written notice, advise the Lessor of its intent to sublet
the Premises or any portion thereof for any part of the term
hereof. within thirty (30) days after receipt of Lessee's notice,
Lessor shall either give or refuse to give approval to Lessee to
sublease the portion of the Premises described in Lessee's
notice. If the Lessor approves a subletting, the Lessee may
sublet immediately after receipt of the Lessor's written
approval. In the event Lessee is allowed to assign, transfer or
sublet the whole or any part of the Premises, with the prior
written consent of Lessor, no assignee, transferee or sublessee
shall assign or transfer this Lease, either in whole or in part,
or sublet the whole or any part of the Premises, without also
having obtained the prior written consent of the Lessor.* A
consent of Lessor to one assignment, transfer, hypothecation,
subletting, occupation or use by any other person shall not
release Lessee from any of Lessee's obligations hereunder or be
deemed to be a consent to any subsequent similar or dissimilar
assignment, transfer, hypothecation, subletting, occupation or
use by any other person. Any such assignment, transfer,
hypothecation, subletting, occupation or use without such consent
shall be void and shall constitute a breach of this Lease by
Lessee and shall, at the option of Lessor exercised by written
notice to Lessee, terminate this Lease. The leasehold estate
under this Lease shall not, nor shall any interest therein, be
assignable for any purpose by operation of law without the
written** consent of Lessor. As a condition to its consent,
Lessor may require Lessee to pay all expense in connection with
the assignment, and Lessor may require Lessee's assignee or
transferee (or other assignees or transferees) to assume in
writing all of the obligations under this Lease.
*Lessor agrees not to unreasonably withhold consent to sublet
or assign.
CONDEM- 27. If any part of the premises shall be taken for any public
NATION or use, under any statute or by right of eminent domain or
private purchase in lieu thereof, and a part thereof remains
which is susceptible of occupation hereunder, this Lease shall,
as to the part so taken, terminate as of the date title shall
vest in the condemnor or purchaser, and the rent payable
hereunder shall be adjusted so that the Lessee shall be required
to pay for the remainder of the term only such portion of such
rent as the value of the part remaining after such taking bears
to the value of the entire
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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 suitable for the conduct of Lessee's
business, this Lease shall thereupon terminate. If a part or 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. * See Addendum
EFFECT OF 28. The term "Lessor" as used in this Lease, means only the
CONVEYANCE owner for the time being of the land and building containing the
Premises, so that, in the event of any sale of said land or
building, or in the event of 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, upon agreement between the parties and
the purchaser at any such sale, or the Lessee of the building,
that the purchaser or lessee of the building has assumed and
agreed to carry out any and all covenants and obligations of the
Lessor hereunder. If any security be given by the Lessee to
secure the faithful performance of all or any of the covenants of
this Lease on the part of the Lessee, the Lessor shall transfer
and deliver the security, as such, to the purchaser at any such
sale or the lessee of the building, and thereupon the Lessor
shall be discharged from any further liability in reference
thereto.
SUBORDI- 29. Lessee agrees that this Lease may, at the option of Lessor,
NATION be subject and subordinate to any mortgage, deed of trust or
other instrument of security which has been or shall be placed on
the land and building or land or building of which the Premises
form a part, and this subordination is hereby made effective
without any further act of Lessee. The Lessee shall, at any time
hereinafter, on demand, execute any instruments, releases, or
other documents that may be required by any mortgagee, mortgagor,
or trustor or beneficiary under any deed of trust for the purpose
of subjecting and subordinating this Lease to the lien of any
such mortgage, deed of trust or other instrument of security, and
the failure of the Lessee to execute any such instruments,
releases or documents, shall constitute a default hereunder. **
** See Addendum
WAIVER 30. 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 the
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 31. Any holding over after the expiration of the said term,
OVER with the consent of Lessor, shall be construed to be a tenancy
from month to month, at a rental to be negotiated by Lessor and
Lessee prior to the expiration of said term, and shall otherwise
be on the terms and conditions herein specified, so far as
applicable.
SUCCESSORS 32. The covenants and conditions herein contained shall,
AND subject to the provisions as to assignment, apply to and bind the
ASSIGNS heirs, successors, executors, administrators and assigns of all
of the parties hereto; and all of the parties hereto shall be
jointly and severally liable hereunder.
TIME 33. Time is of the essence of this Lease.
MARGINAL 34. The marginal headings or titles to the paragraphs of this
CAPTIONS 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 35, 36, 37, 38, 39, 40, 41 and Addendum attached
hereto are hereby made a part of this Lease.
THIS LEASE HAS BEEN PREPARED FOR SUBMISSION TO YOUR ATTORNEY WHO
WILL REVIEW THE DOCUMENT AND ASSIST YOU TO DETERMINE WHETHER YOUR
LEGAL RIGHTS ARE ADEQUATELY PROTECTED. RENAULT & XXXXXXX IS NOT
AUTHORIZED TO GIVE LEGAL AND TAX ADVICE. NO REPRESENTATION OR
RECOMMENDATION IS MADE BY RENAULT & XXXXXXX OR ITS AGENTS OR
EMPLOYEES AS TO THE LEGAL SUFFICIENCY, LEGAL EFFECT OR TAX
CONSEQUENCES OF THIS DOCUMENT OR ANY TRANSACTION RELATING
THERETO. THESE ARE QUESTIONS FOR YOUR ATTORNEY WITH WHOM YOU
SHOULD CONSULT BEFORE SIGNING THIS DOCUMENT.
IN WITNESS WHEREOF, Lessor and Lessee have executed these
presents, the day and year first above written.
LESSOR LESSEE
MIDDLEFIELD ROAD JOINT VENTURE OPEN TV, INC.
/s/ X.X. Xxxxxxx /s/ Xxxx Meagler
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March 5, 2001 VP Finance
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February 27, 2001
___________________________________ -------------------------
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ADDITIONAL PARAGRAPHS
The following additional paragraphs are hereby made a part of that certain lease
dated January 22, 2001, by and between Middlefield Road Joint Venture, as
Lessor, and Open TV, Inc., as Lessee, covering the Premises located adjacent to
000 X. Xxxxxxxxxxx Xxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx.
35. Lessor will indemnify Lessee from and against all costs of response,
corrective action, remedial action, claims, demands, losses and liabilities
arising from any pre-existing environmental contamination which may have
occurred prior to the Lessee taking possession of the Premises.
Lessee will only be responsible for contamination of the Premises or the soils
or ground water thereon or thereunder in violation of Hazardous Materials Laws,
that is caused by Lessee or Lessee's agents, contractors or invitees during the
term as may be extended. All hazardous materials and toxic wastes that Lessee
brings on the Premises shall be stored according to Hazardous Materials' Law.
All hazardous materials and toxic wastes that Lessee brings on the site shall be
stored according to all local, state and national government regulations.
Hazardous Materials shall be defined as those substances that are recognized as
posing a risk of injury to health or safety by the Santa Xxxxx Fire Department,
the Santa Xxxxx County Health Department, the Regional Water Quality Control
Board, the State of California or the Federal Government.
For purposes of this Lease, "Hazardous Materials Law" shall mean all local,
state and federal laws, statutes, ordinances, rules, regulations, judgements,
injunctions, stipulations, decrees, orders, permits, approvals, treaties or
protocols now or hereafter enacted, issued or promulgated by any governmental
authority which relate to any Hazardous Material or the use, handling,
transportation, production, disposal, discharge, release, emission, sale or
storage of, or the exposure of any person to, a Hazardous Material.
36. During the term of the Lease and any extension thereof, the Lessee
shall be permitted to make any additional non-structural improvements or
alterations without the Lessor's consent, provided however, that said
improvements or alterations do not exceed $25,000.00 in cost, and such
improvements or alterations will be subject to the provisions of paragraph 9 of
the Lease (other than the requirement that Lessee obtain Lessor's prior written
consent to making such improvements or alterations).
37. With respect to the replacement of capital items, the Lessee will only
be responsible to reimburse the Lessor as additional rental, its pro rata share
of the cost of said items, based upon the useful life of the items and the
remaining term of the Lease including any extension thereof.
38. The Lessor will deliver the shell building to the Lessee in
ADA-compliant condition. The Lessee shall be responsible for providing and
maintaining ADA-compliant interior improvements. Notwithstanding the provisions
of paragraph 14, Lessee shall not have any obligation to construct structural or
capital improvements or repairs to the shell mandated by any governmental
authority except to the extent that such structural or capital improvements are
required as a specific result of the Lessee's particular use of the Premises or
the construction of the Lessee's improvements or alterations.
39. The Lessor will provide verbal (via telephone) and written notice (via
facsimile) to the Lessee after the fifth day of the month but before the tenth
day of the month if the rental payment is late. A late fee will be assessed per
paragraph 20 of the Lease if payment is not made by the 10th day of the month.
40. Until further written notice by either party, notices per paragraph 23
of the Lease to be delivered as follows:
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To Lessor: Middlefield Road Joint Venture
c/o Renault & Xxxxxxx
0000 Xx Xxxxxx Xxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
Attention: Xxxxxx XxXxx
Facsimile: (000) 000-0000
To Lessee: OPEN TV, INC.
000 Xxxx Xxxxxxxxxxx Xxxx
Xxxxxxxx Xxxx, XX 00000-0000
Attn: Xxxxxxx Xxxxxxx
41. For all purposes in this Lease, the term "abandonment" and "abandon"
shall refer to abandonment of the Premises by Lessee for any period during which
Lessee is in default in the payment of rent or other obligation of Lessee
hereunder (other than the obligation not to abandon the Premises).
8
ADDENDUM
Added to paragraph 9: **provided that at the time of granting its consent
--------------------
thereto, Lessor indicated that removal of the same would be required at the
expiration or sooner termination of the Lease. Lessor agrees that Lessee shall
have not obligation to remove the initial tenant improvements at the expiration
or sooner termination of the Lease.
Added to the end of paragraph 25: **Notwithstanding the foregoing, if Lessor
--------------------------------
elects or is obligated to restore the Premises, Lessor shall within ten days of
the casualty, provide Lessee with an estimate of the time required for
restoration ("Lessor's Estimate"). If the restoration is not completed within
thirty days of Lessor's Estimate, Lessee shall have the right to terminate this
Lease, effective as of the date of the Lessee's notice, until such time as
Lessor has notified Lessee that the Premises are completed. Lessee shall also
have the right to terminate the Lease if any damage occurs in the last year of
the Lease Term.
Added to the end of paragraph 26: **Prior to remitting to Lessor any excess
--------------------------------
rents due Lessor hereunder, Lessee shall first be entitled to deduct therefrom
all reasonable costs incurred to effect such assignment or sublease, including
but not limited to brokerage fees, attorneys fees, tenant improvements and rent
concessions, as well as the unamortized value of all tenant improvements made to
the Premises by Lessee.
Notwithstanding anything to the contrary contained in this Lease:
A. Lessee may assign, transfer or hypothecate the leasehold estate under this
Lease or sublet the Premises, or any part thereof, or any right or privilege
appurtenant thereto to any entity which controls, is controlled by, or is under
common control with Lessee; to any entity which results from a reorganization,
merger or consolidation or Lessee or the parent of Lessee; to any entity which
acquired substantially all of the stock or assets of Lessee (each, a "Permitted
Transfer"), provided that (i) such transfer or assignment shall not relieve
Lessee of its personal and primary obligation to pay the rent and perform all
the other obligations to be performed by Lessee hereunder; and (ii) any such
assignee or transferee has a financial net worth equal at least to Lessee's as
of the commencement date.
B. In addition, a sale or transfer of the capital stock of Lessee shall be
deemed a Permitted Transfer if such sale occurs in connection with any bona fide
financing or capitalization for the benefit of Lessee.
Added to the end of paragraph 27: *However, Lessee shall have the right to seek
--------------------------------
a separate award from the condemning authority for its moving expenses, and
tenant improvements paid for by Lessee and its trade fixtures.
Added to the end of paragraph 29: ** Lessor agreeds, that it will obtain a non-
--------------------------------
disturbance agreement from any Mortgagee.
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