EXHIBIT 10.35
LEASE AGREEMENT
THIS LEASE AGREEMENT ("Lease") is made as of the 16th day of October,
1996 ("Effective Date") by and between ELECTRONIC ARTS INC., a Delaware
corporation ("Landlord"), and XXXXXX XXXXXXXX ("Tenant").
ARTICLE 1: PREMISES
1.1 Premises. The "Premises" consist of an approximately that single
family residence located at 00 Xxxxxx Xxxxx in Woodside, California and the
associated real property shown more particularly on Exhibit A attached hereto.
ARTICLE 2: TERM
2.1 Term. The term ("Term") of this Lease shall commence on the date
that legal title to the Premises has been transferred to Landlord, the Premises
have been vacated by the previous owner thereof and the Premises are available
for occupancy by Tenant, which date is currently anticipated to be October 16,
1996 (the "Commencement Date") and shall terminate on the third anniversary of
the Commencement Date ("The Expiration Date"), unless sooner terminated as
provided for elsewhere herein.
ARTICLE 3: RENT
3.1 Rent. Tenant shall pay to Landlord rent ("Rent") in the amount of
Seven Thousand Five Hundred and No/100 Dollars ($7,500) per month, without
notice, demand, offset or deduction, on the first day of each calendar month.
3.2 Late Charge and Interest. The late payment by Tenant of the Rent
will cause Landlord to incur additional costs, including, without limitation,
administration and collection costs and processing and accounting expenses and
additional increased debt service. If Landlord has not received any installment
of the Rent on the date such amount is due, Tenant shall immediately pay
Landlord a late charge of five percent (5%) of the delinquent amount, which is
agreed to represent a reasonable estimate of the costs incurred by Landlord. In
addition, all such delinquent amounts shall bear interest from the date such
amount was due until paid in full at a rate per annum equal to ten percent (10%)
("Interest Rate") per annum; provided, in no event shall the interest due
hereunder exceed the maximum interest rate permitted by law which may be charged
under such circumstances.
ARTICLE 4: REAL PROPERTY TAXES
4.1 Real Property Taxes. Landlord shall pay as and when due any and all
real property taxes, levies and charges assessed against the Premises and coming
due during the Term of this Lease. Tenant agrees to promptly provide Landlord
with copies of any real property tax bills for the Premises received by Tenant
during the Term hereof.
ARTICLE 5: SECURITY DEPOSIT
5.1 Security Deposit. Upon execution hereof, Tenant shall deposit with
Landlord the sum of Seven Thousand Five Hundred and No/100 Dollars ($7,500) as a
security deposit ("Security Deposit") to secure performance of Tenant's
obligations hereunder. If Tenant fails to pay Rent or fails to perform an
obligation under this Lease, Landlord may apply the Security Deposit to the
payment of Rent or any other sum which Landlord may become obligated to pay by
reason of Tenant's failure to perform any obligation under this Lease, or to
compensate Landlord for any reasonable loss or damage or costs for repair and
clean up which Landlord may suffer by reason of such failure. If Landlord so
applies the Security Deposit, Tenant shall, within five (5) days after written
demand, deposit with Landlord an amount sufficient to restore the Security
Deposit to its full, original amount. Landlord shall not be required to keep the
Security Deposit separate from its general accounts or to pay interest thereon
to Tenant. Upon expiration of the Term or if later vacation of the Premises by
Tenant Landlord shall pay to Tenant the amount of the Security Deposit then
remaining.
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ARTICLE 6: MAINTENANCE AND REPAIR
6.1 Tenant's Representations. Tenant represents to Landlord that he has
had the opportunity to and has inspected the Premises, excepting only those
obligations of Landlord for certain Capital Improvements described in section
8.3 below, Tenant accepts the Premises "as is".
6.2 Landlord's Obligations. Landlord shall have no obligation to
maintain or repair the Premises.
6.3 Tenant's Obligations. Tenant, at Tenant's expense, shall maintain
the Premises and every part thereof in good order, condition and repair. In
connection therewith, Tenant shall, throughout the Term of this Lease, maintain,
at Tenant's expense, maintenance contracts reasonably satisfactory to Landlord
for the pool, lawn and landscaping on the Premises. If Tenant fails to perform
Tenant's obligations under this Xxxxxxxxx 0.0, Xxxxxxxx may enter upon the
Premises after thirty (30) days' prior written notice to Tenant (except in the
case of emergency, in which case no notice shall be required) and perform such
obligations on Tenant's behalf; the cost thereof, together with interest thereon
at the Interest Rate, shall be due and payable to Landlord with the Rent
installment next due.
ARTICLE 7: SECURITY MEASURES
7.1 Security Measures. Landlord shall have no obligation whatsoever to
provide security measures for the benefit of the Premises. Tenant assumes all
responsibility for the protection of Tenant and its invitees and the property of
Tenant and its invitees against acts of third parties.
ARTICLE 8: ALTERATIONS
8.1 Alterations. The term "Alterations" means alterations,
improvements, additions, removals of such alterations, improvements or
additions, including but not limited to temporary structures, but excluding
personal property of Tenant.
8.2 Alterations by Tenant. Tenant shall not make any Alterations to the
Premises that are structural in nature, change the cosmetic image of the
exterior of the Premises or that cost more than Five Thousand Dollars ($5,000)
each without Landlord's prior written consent. Such Alternations approved by
Landlord are hereinafter referred to as "Approved Alterations". Alterations made
by Tenant that have not been approved as provided herein are hereinafter
referred to as "Unapproved Alterations." All Alterations shall become the
property of Landlord when installed. Landlord may, at the expiration or
termination of the term and unless Tenant has exercised the Option described in
Section 16 below, require Tenant, at Tenant's expense, to remove immediately any
and all Unapproved Alterations made by Tenant without Landlord's prior approval
and to restore the premises to their condition prior to the making of such
Unapproved Alterations. Unapproved Alterations shall, upon termination of this
Lease, be subject to Paragraph 13. In the event that Tenant does not exercise
the Option described in Article 16 below or in the event that such Option
terminates, Landlord shall reimburse Tenant for the lesser of the amounts
actually approved by Landlord for such Approved Alterations or the actual costs
to Tenant of such Approved Alterations.
8.3 Alterations by Landlord. Landlord shall make, or arrange to have
made, within ninety (90) days of the commencement of the Term, certain capital
improvements (the "Capital Improvements") to the Premises which are mutually
agreed upon by Landlord and Tenant, each acting reasonably, provided that in no
event shall Landlord be required to spend more than Seventy-Five Thousand
Dollars ($75,000) in connection therewith. Any such Capital Improvements shall
remain a part of the Premises, shall be the property of Landlord and shall be
surrendered by Tenant to Landlord upon the expiration or earlier termination of
this Lease.
ARTICLE 9: LIABILITY AND INSURANCE
9.1 Liability. Tenant shall indemnify, defend and hold Landlord
harmless from and against all losses, claims, suits, judgments, liabilities,
damages, costs and expenses, including without limitation reasonable attorneys'
and experts' fees and expenses and court costs (collectively, "Liabilities"),
which arise directly and indirectly out of Tenant's use of the Premises, any
breach of or any default in the performance of Tenant's obligations under this
Lease or the breach of any representation or warranty made by Tenant in
connection with this Lease, any discharge, leakage, spillage, emission or
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pollution of any type (including gasoline) upon or from the Premises or on any
other property arising out of or in any way connected with Tenant's use or
occupancy of the Premises, or any act or omission of Tenant or any of Tenant's
invitees; provided, however, that Tenant shall not be liable for Liabilities
caused by the sole, active negligence or willful misconduct of Landlord. Upon
notice from Landlord, Tenant shall defend Landlord against Liabilities at
Tenant's expense by counsel reasonably satisfactory to Landlord and Landlord
shall cooperate with Tenant in such defense.
Tenant hereby assumes all risk, waives any claims against and releases
Landlord from liability, and agrees that Landlord shall not be liable to Tenant
for consequential damages or for damage to the property of Tenant, Tenant's
invitees or of third parties or for injury to or the death of Tenant, any of
Tenant's invitees or any other person in or about the Premises unless caused by
the sole, active negligence or willful misconduct of Landlord.
9.2 Insurance to be Maintained by Tenant. Tenant shall, at Tenant's
expense, obtain and keep in force the following:
(i) A policy of comprehensive general liability insurance,
having a combined single limit of not less than One Million Dollars ($1,000,000)
per occurrence, from an insurance company acceptable to Landlord; and
(ii) A policy or policies, including the basic form, broad
form and special form of coverage, including vandalism and malicious mischief,
theft, sprinkler leakage and water damage coverage in an amount equal to the
full replacement value, new without deduction for depreciation, of all
Landlord's fixtures, furniture and equipment in the Premises, and all
Alterations to the Premises installed on the Premises. Such coverage shall name
the Landlord as an additional insured as its interest may appear.
The policies shall name landlord as an additional insured. Tenant shall deliver
to Landlord for Landlord's approval certificates of such insurance no later than
seven (7) days prior to the Commencement Date (or date of possession of the
Premises if earlier). The limits of such insurance shall not limit the liability
of Tenant hereunder.
9.3 Insurance to be Maintained by Landlord. Landlord shall, at
Landlord's expense, obtain and keep in force a policy or policies, including the
basic form, broad form and special form of coverage including vandalism and
malicious mischief, theft, sprinkler leakage and water damage coverage in an
amount equal to the full replacement value, new without deduction for
depreciation, of the residence located on the Premises.
ARTICLE 10: ASSIGNMENT AND SUBLEASING
10.1 Personal Nature of Lease. This Lease is personal to Tenant. As
such, Tenant has no right to assign or permit any other person or entity to use
this Lease in whole or in part. Notwithstanding the foregoing, in the event of
the death of Tenant during the Term hereof, Tenant's spouse may occupy the
Premises subject to the terms of this Lease Agreement for the period referred to
in section 11.3(a)(ii) and may exercise the option to purchase the Premises on
the basis of the terms of and applicable to section 16.1(iii).
ARTICLE 11: DEFAULT AND REMEDIES
11.1 Default. The occurrence of any one or more of the following events
shall constitute a material default of this Lease by Tenant.
(a) The failure by Tenant to make any payment of Rent or any
other payment required to be made by Tenant hereunder within (5) days of receipt
of written notice from Landlord therefor; or
(b) Except as otherwise provided in this Lease, the failure by
Tenant to observe or perform any of Tenant's obligations under this Lease, other
than described in paragraph (a) above, where such failure shall continue for a
period of ten (10) days after delivery of written notice of demand therefor from
Landlord to Tenant; provided, however, that if the nature of Tenant's
noncompliance is such that more than ten (10) days are reasonably required for
its cure, then Tenant shall not be deemed to be in default hereof if Tenant, in
good faith, has commenced such cure within said ten (10) day period and
thereafter diligently prosecutes such cure to completion.
11.2 Remedies. In the event of a default by Tenant, Landlord may, at
any time thereafter, exercise any right or remedy Landlord may have at law or
equity.
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11.3 Termination of Employment.
(a) Notwithstanding anything to the contrary herein, this Lease shall
terminate, and Tenant shall surrender the Premises to Landlord in the condition
required hereunder;
(i) within four (4) months of the effective date of a notice
sent (A) to Landlord by Tenant stating that Tenant elects to terminate his
employment with Landlord, or (B) to Tenant by Landlord stating that Tenant's
employment by Landlord is terminated for cause as defined in Subsection (b)
below;
(ii) within six (6) months of the death of the Tenant or the
effective date of a notice sent to Tenant by Landlord stating that Landlord
elects to terminate Tenant's employment by Landlord for any reason other than
for cause as defined in Subsection (b) below,
In the event that any period described in this Section 11.3 shall extend beyond
the Termination Date, then the Term shall be deemed extended for such period,
and of the rights and obligations of the parties set forth herein, including
Tenant's obligations to pay Rent, shall continue for such period.
(b) For the purposes of this Section 11, the term "cause" shall mean
(i) Tenant conducts himself in a willfully dishonest, or an unethical or
fraudulent manner, (ii) Tenant attempts deliberate injury to Landlord; or (iii)
Tenant conducts any unlawful or criminal activity, which activity reflects badly
on Landlord in Landlord's reasonable judgment,.
ARTICLE 12: LANDLORD'S ENTRY
12.1 Landlord's Access. Upon twenty-four (24) hours notice to the
Tenant, Landlord shall have the right to enter the Premises at reasonable times
for the purpose of inspecting the same, showing the same to prospective
purchasers, lenders or others (during the last sixty (60) days of the Lease, if
Tenant has not exercised the Option only), or exercising any of Landlord's
rights hereunder. In the event of an emergency, Landlord shall have the right to
perform all such actions as Landlord shall deem necessary on the Premises at any
time. All activities of the Landlord undertaken pursuant to this paragraph shall
not grant to Tenant, and Tenant hereby waives, any right of abatement of the
Rent or other claim for liability against Landlord.
ARTICLE 13: SURRENDER
13.1 Return of Premises. Landlord, may, by delivery of written notice
to Tenant no later than ten (10) days prior to the date of expiration or earlier
termination of this Lease, require Tenant to remove, at Tenant's expense and on
or before the expiration or earlier termination of this Lease, any or all
Unapproved Alterations made to the Premises by Tenant.
ARTICLE 14: TRANSFER OF PREMISES
14.1 Transfer of Premises. In the event of a transfer of Landlord's
title or interest in the Premises, then, provided the transferee agrees to be
bound by the terms of this Lease Agreement, including the option to purchase,
from and after the date of such transfer, Landlord herein named (or, in case of
any subsequent transfers, the then grantor) shall be relieved of all liability
as respects Landlord's obligations thereafter to be performed, provided that any
funds held by Landlord (or the then grantor) in which Tenant has an interest
shall be delivered to the grantee. Subject to the foregoing, the obligations to
be performed herein by Landlord shall be binding on Landlord and Landlord's
successors and assigns only during their respective periods of ownership of the
Premises.
ARTICLE 15: MISCELLANEOUS
15.1 Attorney's Fees. If either party shall bring an action or
proceeding against the other party to enforce the terms of this Lease or to
declare their respective right hereunder, the losing party shall pay the
reasonable attorneys' and experts' fees and expenses and court costs of the
party prevailing in the such action, proceeding, or trial or appeal thereof.
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15.2 Notices. All notices shall be in writing and shall be deemed to
have been given when delivered personally or deposited in the United States
mail, registered or certified, postage prepaid, and addressed as follows:
To Landlord: To Tenant:
Electronic Arts Inc. 00 Xxxxxx Xxxxx
0000 Xxxxxxx Xxxxxx Xxxxxxxxx Xxxxxxxx, Xxxxxxxxxx 00000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Vice President, Finance
Either party may change the address for notices or Landlord may change the
address for payments by giving the other party notice to that effect.
15.3 No Waiver. No waiver by Landlord or Tenant of any provision hereof
shall be deemed a waiver of any other provision hereof or of any subsequent
breach by Tenant or Landlord, as the case may be, of the same or any other
provision, nor shall any custom or practice which may grow up between Landlord
and Tenant in the administration of this Lease be construed to waive or to
lessen the right of Landlord or Tenant to insist upon the performance by
Landlord or Tenant in strict accordance with this Lease. Landlord's consent to,
or approval of, any act shall not be deemed to render unnecessary the obtaining
of Landlord's consent to, or approval of, any subsequent act by Tenant. The
acceptance of the Rent hereunder by Landlord shall not be deemed a waiver of any
preceding breach by Tenant of any provision hereof, other than the failure of
Tenant to pay the particular payment of the Rent so accepted, regardless of
Landlord's knowledge of such preceding breach at the time of acceptance of such
Rent.
15.4 Severability. The invalidity of the Lease as determined by a court
of competent jurisdiction, shall in no way affect the validity of any other
provision hereof.
15.5 Time of Essence. Time is of the essence with respect to the
obligations to be performed under this Lease.
15.6 Incorporation of Prior Agreements; Amendments; No Representations
and Warranties. This Lease contains all the agreements of the parties with
respect to any matter mentioned herein. No prior or contemporaneous agreement or
understanding pertaining to any such matter shall be effective. This Lease may
be modified only by written instrument signed by the parties. Except as
otherwise stated in this Lease, Tenant hereby acknowledges that no real estate
broker nor Landlord nor any agent or employee of either has made any oral or
written warranties or representations to Tenant about the condition of the
Premises or the present or future suitability of the Premises for the conduct of
Tenant's business and Tenant's intended use.
15.7 Binding Effect. Subject to Article 10, this Lease shall be binding
on and insure to the benefit of the successors and assigns of the parties
hereto.
15.8 Choice of Law: Venture. The Lease shall be governed by the laws of
California. Any litigation concerning this Lease between the parties hereto
shall be initiated in the county where the Premises are located.
15.9 Captions. The captions on this Lease are for convenience only and
in no way define, limit or otherwise describe the scope or intent of this Lease,
or any provision hereof, or in any way affect the interpretation of this Lease.
15.10 Recording. Tenant shall not record this Lease or a memorandum of
"Short Form" thereof.
15.11 Authority: Joint and Several Liability. Each individual executing
this Lease on behalf of Tenant represents and warrants that he or she is duly
authorized to execute and deliver this Lease on behalf of Tenant and that such
execution is binding upon Tenant. Tenant shall deliver to Landlord evidence of
such authority satisfactory to Landlord prior to Tenant's occupancy of the
Premises. The individuals executing this Lease on behalf of Landlord represent
and warrant to Tenant that they are duly authorized to execute this Lease on
behalf of Landlord and that such execution is binding upon all parties holding
an ownership interest in the Premises.
Where a party consists of more than one person, firm or corporations,
each such person, firm or corporation shall be jointly and severally liable for
performance of such party's obligations hereunder.
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ARTICLE 16: OPTION TO PURCHASE
16.1 Option. Provided that (i) Tenant is not then in default hereunder,
and (ii) Tenant is residing in and has not vacated the Premises, Tenant shall
have an exclusive option (the "Option") to purchase the Premises on the
following basis:
(i) during the time period commencing on the Commencement Date
and ending on the Expiration Date;
(ii) during the time period commencing on the effective date
of a notice sent pursuant to Section 11.3(1) hereof and ending four (4) months
thereafter; and
(iii) during the time period commencing on the effective date
of a notice sent pursuant to Section 11.3(ii) hereof and ending six (6) months
thereafter,
by providing Landlord with written notice thereof at least thirty (30) days (and
no more than sixty (60) days) in advance. Upon Tenant's giving such written
notice to Landlord, this Option shall become a contract for the purchase and
sale of the Premises, and Landlord shall thereupon sell the Property, including
all Alterations and Capital Improvements, to Tenant at a purchase price equal to
the price for which Landlord purchased the Premises, plus the cost of any
Capital Improvements made to the Premises by Landlord (together "Costs"), or if
the option is exercised pursuant to Section 16.1(ii) at a purchase price equal
to the greater of the average of three (3) appraisals provided by independent,
reputable and qualified appraisers or the Costs. In either event, Tenant shall
pay any and all expenses associated with such purchase and sale of the Premises,
including but not limited to escrow fees, title insurance costs, transfer taxes
and recording fees. Upon completion of the purchase and sale, all obligations of
the Tenant for rent, except for arrears for any period preceding the completion
date, shall terminate.
ARTICLE 17: DAMAGE OR DESTRUCTION OF PREMISES
17.1. Termination Upon Damage or Destruction. In the event that the
Premises or any substantial part thereof shall during the Term be damaged or
destroyed by fire, earthquake or flood or otherwise damaged so as to render the
same unfit for the purposes of habitation then, upon written notice from Tenant
to Landlord, this Lease Agreement shall immediately terminate without further
liability of Tenant to pay future rent owing.
IN WITNESS WHEREOF, the parties have executed this Lease in duplicate
as of the Effective Date.
Landlord Tenant
ELECTRONIC ARTS INC.,
a Delaware corporation /s/ Xxxxxx Xxxxxxxx
-------------------
XXXXXX XXXXXXXX
By: /s/ Xxxx Xxxxxxx
----------------
Name: Xxxx X. Xxxxxxx
---------------
Title: VP
--
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EXHIBIT A
THE PREMISES
THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF
SAN MATEO, TOWN OF WOODSIDE, described as follows:
PARCEL I:
XXX 00, XXXXX 0, XX XXXXXXXXXX XX THAT CERTAIN MAP ENTITLED, "TRACT NO. 106, LOS
ROBLES, TOWN OF WOODSIDE, SAN MATEO COUNTY, CALIFORNIA", WHICH MAP WAS FILED IN
THE OFFICE OF THE RECORDER OF THE COUNTY OF SAN MATEO, STATE OF CALIFORNIA ON
JULY 13, 1960, IN BOOK 53 OF MAPS 40, 41 AND 42.
PARCEL II:
NON-EXCLUSIVE EASEMENT FOR INGRESS AND EGRESS OVER SO MUCH HEREIN DESCRIBED
PROPERTY, AS LIES WITHIN LOS XXXXXX DRIVE, AS SAID DRIVE IS SHOWN UPON THE MAP
HEREIN MENTIONED.
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