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EXHIBIT 10.4
ASSIGNMENT AND ASSUMPTION OF 101 CALIFORNIA LEASE
THIS ASSIGNMENT AND ASSUMPTION OF 101 CALIFORNIA LEASE (the "Assignment"),
is made as of this 9 day of December, 1996, by and between TRI VALLEY GROWERS, a
California cooperative association ("Tri Valley") and SAPIENT CORPORATION, a
Delaware corporation ("Sapient").
RECITALS:
WHEREAS, TVG is the tenant under that certain 101 California Lease
attached hereto as Exhibit A (the "Lease"), under which TVG has leased from 101
California Venture ("Landlord") approximately 64,277 square feet of net rentable
office space (the "Leased Premises") within the office building located at 000
Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx, 00000 (the "Building"). The Leased
Premises consists of the entire fourth floor Building (the "Fourth Floor Space")
(consisting of approximately 32,283 rentable square feet) and the entire fifth
floor of the Building (the "Fifth Floor Space") (consisting of approximately
31,994 rentable square feet),
WHEREAS, TVG has agreed to assign its interest in the Lease and the Leased
Premises to Sapient, and Sapient has agreed to assume and accept TVG's interest
in the Lease and the Leased Premises, all in accordance with the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the above recitals, the mutual
promises and covenants hereinafter set forth, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties agree as follows:
1. ASSIGNMENT, ASSUMPTION AND DELIVERY OF LEASE AND LEASED PREMISES.
(a) Fifth Floor Space. TVG hereby assigns to Sapient all of TVG's
right, title and interest in and to the Lease as it relates to the Fifth Floor
Space, and the Fifth Floor Space; and Sapient agrees that, commencing on the
First Delivery Date (as defined below), Sapient shall be responsible for all of
TVG's duties and obligations under the Lease as it relates to the Fifth Floor
Space.
The term "First Delivery Date" is defined herein to mean the date that TVG
delivers the Fifth Floor Space to Sapient. TVG shall deliver the Fifth Floor
Space to Sapient, and Sapient shall accept the Fifth Floor Space no later than
January 27, 1997. TVG may extend its delivery of the Fifth Floor Space, without
penalty, for up to five (5) business days past January 27, 1997, provided that
TVG delivers written notice of such extension to Sapient and Landlord on or
before January 17, 1997.
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For each day after February 1, 1997 that TVG has not delivered the Fifth
Floor Space to Sapient, TVG shall be obligated to pay to Sapient a penalty equal
to two days rent for said Fifth Floor Space. Additionally, if TVG has not
delivered the Fifth Floor Space to Sapient by April 8, 1997, then Sapient may
terminate this Agreement and receive back all prepaid rent paid to TVG
hereunder. Prior to the First Delivery Date, TVG agrees that it shall continue
to be obligated to pay all amounts that are, or become, owing under the Lease
that are attributable to the Fifth Floor Space and that TVG shall pay all such
amounts directly to the Landlord when due, and TVG agrees that if it fails to
pay any amounts owing as to the Fifth Floor Space prior to the First Delivery
Date, then Sapient may pay such amounts directly to the Landlord and thereafter,
Sapient shall be entitled to collect such amounts from TVG on demand and with
any interest permitted to be charged by the Landlord under the Lease. TVG also
agrees that it shall defend and hold Sapient harmless from and against any and
all claims, demands, causes of action, losses, costs (including, without
limitation, court costs and reasonable attorneys' fees), liabilities and damages
of any kind or nature whatsoever with respect to acts, occurrences or omissions
relating to the Fifth Floor Space and that originate from TVG's occupancy of the
Fifth Floor Space.
Sapient agrees that it is obligated to begin paying all amounts owing
under the Lease that are attributable to the Fifth Floor Space, including,
without limitation, Base Rent, Additional Rent, Tenant's Proportionate Share of
Estimated Basic Operating Costs, and Basic Operating Cost Adjustments on the
First Delivery Date and thereafter, all in accordance
with the terms of the Lease.
For purposes of determining the amounts payable under the Lease which are
attributable to the Fifth Floor Space, the parties agree that: (1) the Net
Rentable Area of the Fifth Floor Space is 31,994 square feet; and (2) the
Tenant's Proportionate Share for the Fifth Floor Space is 0.028263%.
(b) Fourth Floor Space. TVG hereby assigns to Sapient all of TVG's right,
title and interest in and to the Lease as it relates to the Fourth Floor Space,
and the Fourth Floor Space; and Sapient agrees that, commencing on the Second
Delivery Date (as defined below), Sapient shall be responsible for all of TVG's
duties and obligations under the Lease as it relates to the Fourth Floor Space.
The term "Second Delivery Date" is defined herein to mean the date that
TVG delivers the Fourth Floor Space to Sapient. TVG shall deliver the Fourth
Floor Space to Sapient, and Sapient shall accept the Fourth Floor Space no later
than January 1, 1998 and no earlier than January 1, 1998 unless requested by
Sapient as set forth below. Should Sapient determine that it needs the Fourth
Floor Space before January 1, 1998, Sapient shall provide TVG and Landlord with
a written notice requesting the Fourth Floor Space prior to January 1, 1998, and
TVG agrees that it shall attempt to accommodate Sapient's request.
For each day after January 1, 1998 that TVG has not delivered the Fourth
Floor Space to Sapient, TVG shall be obligated to pay to Sapient a penalty equal
to two days rent for said Fourth
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Floor Space, and for each day after March 1, 1998 that TVG has not delivered the
Fourth Floor Space to Sapient, TVG shall be obligated to pay to Sapient a
penalty equal to three days rent for said Fourth Floor Space.
If, however, the date on which TVG is able to take possession of its new
leased premises is delayed due to fire, act of God, government act, strike,
labor dispute, unavailability of standard building materials or any other cause
outside of TVG's control that prevents TVG from actually taking possession of
its new leased space, then the Second Delivery Date shall be extended for a
period equivalent to the period of such delay, interruption or prevention, and
Sapient shall not be obligated to pay rent on the Fourth Floor Space until TVG
delivers possession of said space to Sapient (and TVG shall not be obligated to
pay a penalty for any such delay).
Sapient agrees that it is obligated to begin paying all amounts owing
under the Lease that are attributable to the Fourth Floor Space, including,
without limitation, Base Rent, Additional Rent, Tenant's Proportionate Share of
Estimated Basic Operating Costs, and Basic Operating Cost Adjustments on the
Second Delivery Date and thereafter, all in accordance with the terms of the
Lease. Prior to the Second Delivery Date, TVG agrees that it shall continue to
be obligated to pay all amounts that are, or become, owing under the Lease that
are attributable to the Fourth Floor Space and that TVG shall pay all such
amounts directly to the Landlord when due, and TVG agrees that if it fails to
pay any amounts owing as to the Fourth Floor Space prior to the Second Delivery
Date, then Sapient may pay such amounts directly to the Landlord and thereafter,
Sapient shall be entitled to collect such amounts from TVG on demand and with
any interest permitted to be charged by the Landlord under the Lease. TVG also
agrees that it shall defend and hold Sapient harmless from and against any and
all claims, demands, causes of action, losses, costs (including, without
limitation, court costs and reasonable attorneys' fees), liabilities and damages
of any kind or nature whatsoever with respect to acts, occurrences or omissions
relating to the Fourth Floor Space and that originate from TVG's occupancy of
the Fourth Floor Space.
Additionally, if Landlord exercises its remedies under the Lease and
removes TVG from the Fourth Floor Space prior to the Second Delivery Date, then
TVG and Sapient agree that Sapient may assume possession of the Fourth Floor
Space prior to the Second Delivery Date and thereupon shall become obligated to
pay to Landlord all amounts that become owing under the Lease relative to the
Fourth Floor Space from and after the date that Sapient occupies the Fourth
Floor Space.
For purposes of determining the amounts attributable to the Fourth Floor
Space, the parties agree that: (1) the Net Rentable Area of the Fourth Floor
Space is 32,283 square feet; and (2) the Tenant's Proportionate Share for the
Fourth Floor Space is 0.028518%.
(c) Suspension of Rent During Tenant Improvements. Notwithstanding the
foregoing, TVG agrees that: (1) Sapient's obligation to begin paying all amounts
owing under the Lease which are applicable to the Fifth Floor Space shall not
commence until ninety (90) days after the First Delivery Date; and (2) Sapient's
obligation to begin paying all amounts owing under
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the Lease which are applicable to the Fourth Floor Space shall not commence
until the earlier of (i) Sapient's occupancy of the Fourth Floor Space for
business operations, or (ii) sixty (60) days after the Second Delivery Date.
Additionally, either applicable rent commencement date shall be further delayed
for any delays in Sapient's occupancy of the Leased Premises that are actually
caused by TVG, such as TVG's failure to timely remove its personal property from
the Leased Premises or restore the Leased Premises in accordance with Sections
5.5 and 5.18 of the Lease. Following the delivery of the space to Sapient,
Sapient's obligation to begin paying amounts under the Lease at the times
described above, shall not be delayed for any events occurring outside of the
control of TVG or Sapient, such as acts of God, war, nature, or other acts
offorce majeure.
(d) Rights to Extend, Expand, and of First Opportunity. This Assignment
includes TVG's assignment to Sapient of the right to extend the term of the
Lease under Section 3.3 of the Lease; the right to expand into additional space
under Section 2.3 of the Lease; and the right of first opportunity under Section
2.4 of the Lease, PROVIDED THAT AND IF AND ONLY If THE FOLLOWING EXPRESS
CONDITIONS PRECEDENT HAVE BEEN SATISFIED TO TVG'S SOLE SATISFACTION PRIOR TO
SAPIENT'S EXERCISE OF ANY SUCH RIGHT: (1) that the Landlord shall release TVG
from all liability and obligations under the Lease prior to Sapient's exercise
of the right to extend the term of the Lease, and (2) the Landlord shall agree
that TVG shall not be liable to Landlord for the additional obligations incurred
by Sapient by reason of its request to expand into additional space or Sapient's
request to exercise a right of first opportunity. If Sapient exercises any right
enumerated in this Section without first obtaining the prior written consent of
the Landlord to releaseor hold TVG harmless as required by this Section, then
such action by Sapient shall not be effective as between Sapient and TVG, and
Sapient shall indemnify and hold TVG harmless from and against any and all
claims, demands, causes of action, losses, costs (including, without limitation,
court costs and reasonable attorneys' fees), liabilities and damages of any kind
or nature whatsoever that originate as a result of Sapient's exercise of such
right(s).
In TVG's sole and complete discretion, any of the foregoing conditions may
be waived by a writing signed by TVG and Sapient, in whole or in part, in the
event that Sapient is willing and able to provide TVG with security that is
satisfactory to TVG in its sole and complete discretion for Sapient's
performance of the obligations created by the exercise of the extension,
expansion and/or right of first opportunity rights granted under Sections 3.3,
2.3, and 2.4, respectively, of the Lease, and which such security must be in
place prior to Sapient's exercise of any one or more of the rights enumerated
above.
2. CONDITION OF LEASED PREMISES. Subject to the limitations set forth in
this Section 2, Sapient agrees that it shall accept the Fifth Floor Premises in
a broom clean condition, and in its "AS IS, WHERE IS CONDITION, AND WITH ALL
FAULTS" as of the First Delivery Date, and agrees that it shall accept the
Fourth Floor Premises in its "AS IS, WHERE IS CONDITION, AND WITH ALL FAULTS" as
of the Second Delivery Date. Sapient understands and agrees that TVG may make
certain minor alterations to the Fourth Floor Space to accommodate TVG's
relocation of some of its employees from the Fifth Floor Space to the Fourth
Floor Space. Such minor modifications shall be done only with the prior consent
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and approval of Landlord. SAPIENT AGREES AND UNDERSTANDS THAT TVG HAS NOT MADE
AND IS NOT MAKING ANY REPRESENTATION, EXPRESS OR IMPLIED, CONCERNING ANY
PHYSICAL ASPECT OR CONDITION OF THE BUILDING OR THE LEASED PREMISES, INCLUDING,
WITHOUT LIMITATION, THE OPERATION OR CONDITION OF THE MECHANICAL SYSTEMS LOCATED
THEREIN, OR THE COMPLIANCE OF THE BUILDING OR THE LEASED PREMISES WITH
APPLICABLE CODES, REGULATIONS, AND STATUTES, AND SAPIENT ACKNOWLEDGES TO TVG
THAT IT IS NOT RELYING ON ANY REPRESENTATION OR WARRANTY OF ANY KIND WHATSOEVER,
EXPRESS OR IMPLIED, FROM TVG OR ANY OTHER PARTY. TVG'S SOLE REPRESENTATION TO
SAPIENT IS THAT THE CONDITION OF THE LEASED PREMISES SHALL NOT DEVIATE
SUBSTANTIALLY FROM ITS PRESENT CONDITION, EXCEPT FOR INCIDENTAL ITEMS THAT MAY
REASONABLY RESULT FROM TVG'S REMOVAL OF ITS PROPERTY FROM THE LEASED PREMISES,
MINOR CHANGES TO THE FOURTH FLOOR SPACE RESULTING FROM TVG'S RELOCATION OF SOME
OF ITS EMPLOYEES FROM THE FIFTH FLOOR SPACE TO THE FOURTH FLOOR SPACE, AND FOR
ITEMS OF ORDINARY WEAR AND TEAR.
Prior to the respective Delivery Dates, Sapient shall advise TVG what
personal property, if any, it would like to purchase from TVG. Any such personal
property shall be conveyed to Sapient by means of a Xxxx of Sale acceptable to
both TVG and Sapient, to be executed and delivered by TVG at the time that it
delivers the applicable portion of the Leased Premises to Sapient. TVG shall
remove all other movable personal property from the Leased Premises prior to the
date that such space is to be delivered to Sapient.
TVG shall make the restorations to the Leased Premises that are described
on Exhibit B attached hereto, which Landlord has represented to TVG are the only
restorations required by Sections 5.5 and 5.18 of the Lease with respect to the
removal of TVG's improvements in the Leased Premises.
3. TENANT IMPROVEMENT ALLOWANCE. TVG will provide Sapient with an
improvement allowance of $18.00 per rentable square foot of the Fifth Floor
Space and the Fourth Floor Space. Such allowance may be used by Sapient to
complete any required construction work in the Leased Premises, including,
without limitation, the right to use such funds for items such as compliance
with the Americans with Disabilities Act, upgrade of the fire/life safety
systems of the Leased Premises, and for compliance with other local, municipal,
county, state and federal codes, regulations, rules, laws and ordinances;
compliance with which shall be Sapient's sole and complete responsibility.
The improvement allowance for the Fifth Floor Space shall be funded no more
often than monthly and in three (3) equal installments, with the first funding
to occur no earlier than thirty (30) days after the First Delivery Date. The
improvement allowance for the Fourth Floor Space shall be funded no more often
than monthly and in two (2) equal installments, with the first funding to occur
no earlier than thirty (30) days after the Second Delivery Date. The foregoing
notwithstanding, no distribution of funds shall be made until Sapient has
commenced work on the Leased Premises. All distributions shall be made by TVG to
Sapient no later than ten (10) business
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days after receipt by TVG of a written request for such funds, which written
request must include copies of the general contractor's invoices and conditional
lien waivers; and unconditional lien waivers from the general contractor prior
to the final distribution for each floor.
All construction to the Leased Premises shall be the sole responsibility of
Sapient and shall follow the guidelines contained in the Lease. Sapient shall be
entitled to select the architect, engineer and contractor of its choice for the
tenant improvements, subject to the terms contained in the Lease and subject to
approval of the selected providers by the Landlord.
4. PREPAID RENT. Upon the execution of this Assignment, Sapient shall pay
to TVG the following amounts, which sums shall be held by TVG for application to
the payment obligations of Sapient for its first full month of occupancy of the
Fifth Floor Space: (i) $25,328.58 (Base Rent for the Fifth Floor Space); and
(ii) $32,847.17 (Monthly Proportionate Share of Operating Expenses attributable
to the Fifth Floor Space. Sapient shall also pay to TVG on the Second Delivery
Date the sum of $25,557.38 (Base Rent for the Fourth Floor Premises). All such
amounts shall be held by TVG until such time as they become owing by Sapient
under the terms of this Assignment, at which time TVG shall pay such sums to
Landlord or credit such sums against any amount already paid by TVG to Landlord.
Sapient is obligated to pay any shortfall in the Proportionate Share of
Operating Expenses owing to Landlord over and above the amount paid to TVG under
this Section.
5. PRORATIONS. TVG and Sapient agree that TVG shall be entitled to receive
or obligated to pay (as the case may be) the Basic Operating Cost Adjustment
which is attributable to the Leased Premises for calendar year 1996. TVGis
obligated to pay all amounts accruing for the Fourth Floor Space until the
Second Delivery Date. Additionally, TVG and Sapient agree that TVG shall be
entitled to receive or obligated to pay (as the case may be) the Basic Operating
Cost Adjustment as it relates to the Fourth Floor Space for calendar year 1997;
unless Sapient takes possession of the Fourth Floor Space prior to January 1,
1998, in which event the Basic Operating Cost Adjustment as it relates to the
Fourth Floor Space for calendar year 1997 shall be prorated by and between
Sapient and TVG as of the date that Sapient becomes obligated to pay rent for
the Fourth Floor Space as determined under Section l(c) herein. If the dates on
which Sapient becomes obligated to pay all amounts owing under the Lease,
relative to the Fifth Floor Space and the Fourth Floor Space, falls on a day
other than the first day of a calendar month, then Sapient shall reimburse TVG
for the pro rata amount of rent and other charges applicable to the remaining
portion of such calendar month.
6. PARKING. The Lease provides TVG with four (4) automobile parking spaces
and space for parking up to twelve (12) bicycles in the Building. These parking
spaces will be delivered to Sapient as follows:
(a) One (1) automobile parking space and one-half of all bicycle spaces
presently available to TVG, if any, shall be assigned to Sapient at such time as
Sapient actually occupies the Fifth Floor Space; and
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(b) Three (3) automobile parking spaces and all remaining bicycle spaces,
if any, shall be assigned to Sapient at such time as Sapient actually occupies
the Fourth Floor Space.
7. USE OF STAIRWAY. TVG currently uses a key pad security system for
travel between the Fourth Floor Space and the Fifth Floor Space via the
Building's core stairways. TVG shall leave the security system with the Leased
Premises and Sapient shall be allowed to use the interior security system when
both floors are occupied by Sapient. Prior to that time, the two floors shall be
independently secured.
8. TVG'S REPRESENTATIONS, WARRANTIES AND COVENANTS. TVG, for itself and
its legal representatives, successors and assigns, covenants, represents, and
warrants to Sapient and agrees as follows:
(a) TVG has full right, authority and power to assign its rights and
interests in and under the Lease.
(b) No other assignment of the Lease has been made by TVG, and the rights
and interests of TVG in and under the Lease are free and clear of any liens and
encumbrances made by TVG.
(c) TVG is not on the date hereof in default under any of the terms of the
Lease, TVG having performed all of the obligations imposed upon TVG as lessee
under the Lease, and TVG agrees that it has or shall perform all obligations
under Sections 5.5 and 5.18 of the Lease with respect to the removal of TVG's
improvements in the Leased Premises.
(d) TVG has no knowledge of any default in the performance and observance
of obligations contained in the Lease to be kept, observed and performed by
Landlord.
(e) TVG has not executed or otherwise entered into subleases, tenancies,
occupancy Assignments or other Assignments with respect to rights affecting
possession of the Leased Premises or any portion thereof and there are no such
Assignments entered into or executed by any third party.
(f) TVG shall indemnify and hold Sapient harmless from and defend Sapient
against any and all claims, demands, causes of action, losses, costs (including,
without limitation, court costs and reasonable attorneys' fees and any default
charges paid by Sapient under the Lease), liabilities and damages of any kind or
nature whatsoever that originate prior to the First Delivery Date with respect
to acts, occurrences or omissions relating to the Fifth Floor Space and that
arise out of the TVG's obligations under the Lease prior to that date. TVG
further agrees to indemnify and hold Sapient harmless from and defend Sapient
against any and all claims, demands, causes of action, losses, costs (including,
without limitation, court costs and reasonable attorneys' fees and any default
charges paid by Sapient under the Lease), liabilities and damages of any kind or
nature whatsoever that arise after the Second Delivery Date with respect
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to acts, occurrences or omissions relating to the Fourth Floor Space and that
originate from TVG's occupancy of the Fourth Floor Space.
(g) The copy of the Lease attached hereto as Exhibit A is a true and
accurate copy of the Lease as currently in effect.
(h) The Lease is, and will as of the Delivery Dates, be in full effect
with respect to the portion of the Leased Premises transferred, and no default
exists or will exist under the Lease as of the Delivery Dates, nor any acts or
events which, with the passage of time or the giving of notice or both, could
become defaults.
(i) Other than those items described in Exhibit B attached hereto, TVG has
not installed any improvements, alterations, moveable equipment, furniture,
trade fixtures and other personal property within the Leased Premise which,
pursuant to the terms of Sections 5.5 and 5.18 of the Lease, must be removed
from the Leased Premises on or before the expiration of the term of the Lease.
(j) From and after the execution of this Assignment by TVG and Sapient,
TVG shall provide Sapient with copies of any and all notices received from the
Landlord, in connection with the Lease or the Leased Premises.
(k) From and after the execution of this Assignment by TVG and Sapient,
TVG shall provide Sapient with copies of any and all notices being provided to
Landlord under the Lease.
9. SAPIENT'S REPRESENTATIONS, WARRANTIES, AND COVENANTS. Sapient, for
itself and its legal representatives, successors and assigns, covenants and
represents to TVG and agrees as follows:
(a) Sapient has the authority to enter into this Assignment and the
persons signing this Assignment on behalf of Sapient are duly authorized to sign
this Assignment on its behalf.
(b) Sapient shall indemnify and hold TVG harmless from and defend TVG
against any and all claims, demands, causes of action, loses, costs (including,
without limitation, court costs and reasonable attorneys' fees and any default
charges paid by TVG under the Lease), liabilities and damages of any kind or
nature whatsoever that originate after the First Delivery Date with respect to
acts, occurrences or omissions relating to the Fifth Floor Space and that arise
out of the Sapient's obligations under the Lease or occupancy of the Fifth Floor
Space. Sapient further agrees to indemnify and hold TVG harmless from and defend
TVG against any and all claims, demands, causes of action, loses, costs
(including, without limitation, court costs and reasonable attorneys' fees and
any default charges paid by TVG under the Lease), liabilities and damages of any
kind or nature whatsoever that arise after the Second Delivery Date with respect
to acts, occurrences or omissions relating to the Fourth Floor Space and that
originate out of Sapient's obligations under the Lease or occupancy of the
Fourth Floor Space.
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(c) From and after the execution of this Assignment by TVG and Sapient,
Sapient shall provide TVG with copies of any and all notices received from the
Landlord, in connection with the Lease or the Leased Premises.
(d) From and after the execution of this Assignment by TVG and Sapient,
Sapient shall provide TVG with copies of any and all notices being provided to
Landlord under the Lease.
(e) Sapient agrees that it may not sublease, assign, transfer, convey or
encumber its interest in the Lease or the Leased Premises without the prior
written consent of TVG, which consent will not be unreasonably withheld.
(f) Sapient shall observe and perform all of the terms and conditions of
the Lease with respect to the Fifth Floor Space on and after the First Delivery
Date and with respect to the Fourth Floor Space on and after the Second Delivery
Date, as and when required, except as such obligations have been assumed by TVG
by this Assignment.
10. LESSOR'S CONSENT. This Assignment and the respective obligations of
the parties hereunder, is expressly conditioned upon TVG's receipt of Landlord's
written consent to this Assignment (in a form acceptable to TVG) on or before
5:00 P.M. (Pacific Time) on Friday, January 3, 1997.
11. NOTICES. Any notice to be given pursuant to this Assignment shall be
in writing and shall be served by hand or private express mail carrier, or by
United States certified or registered mail.
(a) Unless otherwise directed in writing by Sapient, all notices to
Sapient shall be mailed to Sapient at the following addresses.
Prior to the First Delivery Date:
Sapient Corporation
Xxx Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
After the First Delivery Date:
Sapient Corporation
Xxx Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
And to:
Sapient Corporation
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000 Xxxxxxxxxx Xxxxxx, Xxxxx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
And with a copy to:
Xxxx X. Xxxxxxxxx
MacKenzie & Xxxxxxxxx
Xxx Xxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
(b) Unless otherwise directed in writing by TVG, all notices to TVG shall be
mailed to TVG at the following addresses:
Prior to the First Delivery Date:
Tri Valley Growers
000 Xxxxxxxxxx Xxxxxx
X.X. Xxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000-0000
After the First Delivery Date:
Xxx Xxxxxx Xxxxxxx
X&X Xxxxx
X.X. Xxx 0000
Xxx Xxxxx, Xxxxxxxxxx 00000
After the Second Delivery Date:
Tri Valley Growers
Xxxxxx Ranch 15
00000 Xxxxxxx Xxxx.
Xxx Xxxxx, Xxxxxxxxxx 00000
And with a copy to:
Xxxx X. Xxxxxx
Xxxxxxx, Rumble & Butler, P.A.
0000 Xxxxx Xxxxxx Towers
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
12. BROKERAGE COMMISSION. TVG agrees to pay a brokerage commission to
Xxxxxxx Realty Corporation / Xxxxxx Xxxxx & X'Xxxxxx. The commission will be
calculated from the date on which rent becomes owing by Sapient relative to each
floor of the Building to
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April 21, 2004, at the rate of $1.00 per rentable square foot per year for the
first five (5) years of remaining lease term and $.40 per rentable square foot
per year from the beginning of the sixth year through April 21, 2004, prorated
for any partial years. One half of this commission shall be payable when this
Assignment has been signed by all parties and all of the required consents from
the Landlord have been signed and received by TVG; and the remaining one-half
shall be paid equally between the dates when Sapient starts paying rent for each
floor of the Building, as provided herein.
13. PROTECTION OF TVG'S INTERESTS. In the event that Sapient should fail
to perform or observe any covenant or agreement contained in the Lease or in
this Assignment which causes a default under the Lease, TVG may (after providing
five (5) days written notice to Sapient, except in the event of an emergency or
the possibility of an imminent loss, in which event no notice shall be
required), but without obligation to do so or liability for failure to do so,
and without releasing Sapient from any obligation hereunder, make or do the same
in such manner and to such extent as TVG may deem appropriate to protect the
security hereof, including, specifically, without limiting its general powers,
the right to appear in and defend any action or proceeding purporting to affect
the security hereof or the rights or powers of TVG, and also the right to
perform and discharge each and every obligation, covenant and agreement of TVG
contained in the Lease, and in exercising any such powers to pay necessary costs
and expenses, employ counsel and pay reasonable attorneys' fees. TVG shall be
entitled to draw on the Letter of Credit described in Section 14 herein for the
purpose of curing such default by Sapient, but only after having provided the
notice required above. In the event that TVG draws on the Letter of Credit
described in Section 14 herein, Sapient shall replenish all amounts drawn under
the Letter of Credit within thirty (30) days of TVG's request for replenishment.
Additionally, upon any breach or default by Sapient under this Assignment
or under the Lease, TVG shall be entitled to recover from Sapient any and all
damages incurred by TVG as a result of such breach, or TVG may seek specific
performance of this Assignment, or TVG may seek to terminate some or all of the
rights of Sapient under this Agreement, or TVG may pursue such other remedies as
may be available to TVG at law, in equity or otherwise.
TVG agrees that upon any breach or default by TVG under this Assignment or
under the Lease, Sapient shall be entitled to recover from TVG any and all
damages incurred by Sapient as a result of such breach, or Sapient may seek
specific performance of this Assignment, or Sapient may seek to terminate some
or all of the rights of TVG under this Agreement, or Sapient may pursue such
other remedies as may be available to Sapient at law, in equity or otherwise.
14. LETTER OF CREDIT. Sapient shall obtain, from an issuing bank that is
acceptable for TVG, an irrevocable standby letter of credit ("LC"), in
substantially the same form as the LC attached hereto as Exhibit C. The LC shall
be for the benefit of TVG, shall be in the amount of $300,000.00 and shall be
delivered to TVG upon the execution of this Assignment. The LC shall serve as a
collateral for the full and complete performance by Sapient of the terms and
conditions of the Lease and of this Assignment as they relate to Sapient's
performance of the Lease terms, and may be drawn upon by TVG upon a breach or
default by Sapient under the
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Lease or for a breach of any term in this Assignment that results in a default
under the Lease, after providing Sapient with the notice described in Section 13
above.
After January 1, 1999, the amount of the LC may be reduced from $300,000
to $100,000.00. The LC shall remain in full force and effect until April 21,
2004.
TVG shall pay up to one percent (1 %) annually of the amount of the LC as
and for the issuer's reasonable cost of issuing the LC. This amount shall be
reimbursed to Sapient by way of a credit to Sapient for rent owing under the
Lease that would otherwise be payable by Sapient under the terms hereof.
15. BINDING EFFECT, CHOICE OF LAW. This Assignment shall inure to
the benefit of and be binding upon the parties hereto and their respective
heirs, legal representatives, successors and assigns. This Assignment shall
be governed by the laws of the State of California.
16. CAPTIONS, AMENDMENTS, NOTICES. The captions and headings of the
paragraphs of this Assignment are for convenience only and shall not be used to
interpret or define the provisions of this Assignment. This Assignment can be
amended only in writing signed by TVG and Sapient. Any notice under this
Assignment shall be deemed to have been given when personally delivered or
mailed to each party at its address set forth in the first paragraph.
17. DEFINED TERMS. All defined terms in this Assignment shall have the
meaning set forth in the Lease and the Exhibits attached thereto. To the extent
any defined term in this Assignment contradicts the definition of that term as
contained in the Lease, the definition used in the Lease shall control.
18. COUNTERPARTS. This Assignment may be executed in any number of
counterparts, each of which shall be considered one and the same Assignment
and shall become effective when one or more counterparts have been signed by
each of the parties and delivered to the other party.
IN WITNESS WHEREOF, the undersigned has executed this Assignment of Lease
as of the day and year first above written.
TRI VALLEY GROWERS
By /s/ Xxxxxxx X. Xxxxx
------------------------------
Name Xxxxxxx X. Xxxxx
-----------------------------
Title Chief Operating Officer
----------------------------
By
------------------------------
Name
-----------------------------
Title
----------------------------
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IN WITNESS WHEREOF, the undersigned has executed this Assignment of Lease
as of the day and year first above written.
SAPIENT CORPORATION
By /s/ Xxxxxx X. Xxxxx
------------------------------
Name Xxxxxx X. Xxxxx
-----------------------------
Title Director of Operations
----------------------------
By
------------------------------
Name
-----------------------------
Title
----------------------------
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