EXHIBIT 10.24
RENAULT & XXXXXXX
INDUSTRIAL & COMMERCIAL REAL ESTATE
This Lease, executed in duplicate at Palo Alto, California, this 15th day of
January, 2000
PARTIES By and between X.X. Xxxxxx, X.X. Xxxxxxx, et al and OpenTV,
Inc., 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:
Approximately 17,000 square feet of an approximate 25,000
square foot industrial building commonly known as 000 Xxxx
Xxxxxxxxxxx Xxxx, as shown on Exhibit A together with non-
exclusive rights of ingress, egress and parking for a
minimum of 68 cars.
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, said consent not to be
unreasonably withheld.
TERM 3. The term shall be for three (3) years and eight (8)
months, commencing on the last to occur of: (i) the 1/st/
day of January, 2000, or (ii) the voluntary surrender of the
Premises and termination of its Lease by the existing
tenant, and terminating on the 31st day of August, 2003. If
the existing tenant shall not have voluntarily surrendered
the Premises and terminated its Lease by January 20, 2000,
Lessee may at its sole option terminate this Lease.
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:
Rent shall be due on the first day of each calendar month of
the Term. If the Commencement Date occurs on a date other
than the first day of the calendar month in which it occurs,
the Rental due on the first day of the second calendar month
of the Term shall be prorated. Upon Lease execution, Forty
One Thousand Six Hundred Fifty and NO/100ths Dollars
($41,650.00/$2.45 per sq ft) shall be due representing
rental for the first full month of the Term and on
the first day of each succeeding month to and including
December, 2000. Forty Two Thousand Five Hundred and
NO/100ths Dollars ($42,500.00/$2.50 per sq ft) shall be due
on January 1/st/ 2001 and on the first day of each and every
month through December 1/st/ 2001. Forty Three Thousand
Three Hundred Fifty and NO/100ths Dollars ($43,350.00/$2.55
per sq ft) shall be due on January 1/st/ 2002 and on the
first day of each and every month through December 1st 2002.
Forty Four Thousand Two Hundred and NO/100ths Dollars
($44,200.00/$2.60 per sq ft) shall be due on January 1/st/
2003 and on the first day of each and every month through
August 1/st/ 2003.
SECURITY 5. Lessee has deposited with Lessor $44,200.00 as
DEPOSIT security for 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 fourteen (14) 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. Lessor warrants that all operating systems
OF PREMISES associated with the Premises HVAC, electrical and plumbing
AND CONSENT are in good operating condition and repair and that the
TO Premises were in compliance with all codes as of June 23,
SURRENDER 1998. By entry hereunder, the Lessee accepts the Premises as
being in good and satisfactory condition, unless within
fifteen (15) days after such entry Lessee shall give Lessor
written notice specifying in reasonable detail the respects
in which the Premises were not in satisfactory condition.
The Lessee agrees on 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
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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.
USES 8. Lessee shall not commit, or suffer to be committed,
PROHIBITED any 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 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 except in exterior trash receptacles.
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.
ALTERATIONS 9. The Lessee shall make no alterations, additions or
AND improvements to the Premises or any part thereof that cost
ADDITIONS in excess of $5,000.00 without first obtaining the prior
written consent of the Lessor which shall not be
unreasonably withheld. Lessor shall grant or deny its
consent to any request by Lessee within five (5) business
days after Lessor's receipt of any such request. The Lessor
may impose as a condition to the aforesaid consent such
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, and the
requirement that at Lessor's option Lessee will remove any
or all improvements or additions to the Premises installed
at Lessee's expense upon the expiration or earlier
termination of the Lease. 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 when Lessee is not in default
hereunder. 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-
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responsibility to be posted and to remain posted until the
completion of alterations or additions which have been
approved by the Lessor. Notwithstanding anything to the
contrary, Lessee shall be responsible for cost of all
capital replacement of HVAC system.
MAINTENANCE 10. Lessee shall, at Lessee's sole cost, keep and
OF PREMISES maintain the interior portion of the Premises and
appurtenances and every part thereof, including but not
limited to, interior plumbing, electrical systems, heating
and air conditioning installations, 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.
FIRE AND SEE REVISED INSURANCE CLAUSE ATTACHED
EXTENDED
COVERAGE
INSURANCE
AND
SUBROGATION
ABANDON- 12. Lessee shall not abandon the Premises at any time
MENT during the term; and if Lessee shall abandon 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.
FREE FROM 13. Lessee shall keep the Premises and the property in
LIENS which the Premises are situated, free from any liens arising
out of any work performed, materials furnished, or
obligations incurred by Lessee.
COMPLIANCE 14. Lessee shall, at his sole cost and expense, comply
WITH with all of the requirements of all Municipal, State and
GOVERN- Federal authorities now in force, or which may hereafter be
MENTAL in force, pertaining to the Premises, and shall faithfully
REGULATIONS observe in the 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 of
competent jurisdiction, or the admission of Lessee in any
action or proceeding against Lessee, whether Lessor be a
party thereto
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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.
INDEMNI- 15. The Lessee, as a material part of the consideration
FICATION OF to be rendered to the Lessor, hereby waives all claims
LESSOR AND against the Lessor for damages to goods, wares and
LESSEE'S merchandise, and all other personal property in, upon, or
LIABILITY about the Premises and for injuries to persons in or about
INSURANCE the Premises, from any cause arising at any time, excepting
claims arising from the Lessor's negligence or willful
misconduct, 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,
MENTS AND upon or about the Premises any unusual or extraordinary
SIGNS signs, or any signs not approved by the city or other
governing authority. The Lessee will not place, or permit to
be placed, upon the Premises, any signs, advertisements or
notices without the prior written consent of the Lessor,
said consent shall not be unreasonably withheld. Lessor
approves the OpenTV sign logo. 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 hereby, and if not so removed by
Lessee then Lessor may have same so removed at Lessee's
expense.
UTILITIES 17. Lessee shall pay for all water, gas, heat, light,
power, telephone service and all other service supplied to
the premises. If the premises are not served by a separate
water meter, the Lessee shall pay to the Lessor 68 percent
of the water xxxx for the entire property covered by said
xxxx and of which the Premises are a part.
ATTORNEY'S 18. In case suit should be brought for the possession
FEES of the Premises, for the recovery of any sum due hereunder,
or because of the breach of any other covenant herein, the
losing party shall pay to the prevailing party a reasonable
attorney's fee, which shall be deemed to have accrued on the
commencement of such action and shall be enforceable whether
or not such action is prosecuted to 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
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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 the 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. If the Lessor chooses not to
repossess the premises, but allows the Lessee to remain in
full possession and control of the Premises, 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.
LATE 20. Lessee hereby acknowledges that late payment by
CHARGES Lessee to Lessor of rent and other sums due hereunder will
cause Lessor to incur costs not contemplated by this lease,
the exact amount of which will be extremely difficult to
ascertain. Such costs include, but are not limited to,
processing and accounting charges, and late charges which
may be imposed on Lessor by the terms of any mortgage or
trust deed covering the Premises. Accordingly, if any
installment of rent or any other sum due from Lessee shall
not be received by Lessor or Lessor's designee within ten
(10) days after such amount shall be due, Lessee shall pay
to Lessor a late charge equal to 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 Lessor's right with respect to such
overdue amount, nor prevent Lessor from exercising any of
the other rights and remedies granted hereunder.
SURRENDER 21. The voluntary or other surrender of this Lease by
OF LEASE Lessee, or a mutual cancellation thereof, 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.
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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, 68% of
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 with respect to the
Premises. 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
following addresses: if to Lessee, at 000 X. Xxxxxxxxxxx
Xx., Xxxxxxxx Xxxx, XX 00000, Attn: Facilities Manager; if
to Lessor, at 0000 Xx Xxxxxx Xxxx, Xxxx Xxxx, XX 00000.
ENTRY BY 24. Lessee shall permit Lessor and his agents to enter
LESSOR into and upon the Premises at all reasonable times upon
prior notice except in an emergency for the purpose of
inspecting the same or for the purpose of maintaining the
building in which the Premises are situated, or upon 5
business days prior written notice 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.
DESTRUCTION 25. In the event of a partial destruction of the
OF PREMISES Premises during the said term from any cause, Lessor shall
forthwith repair the same, provided such repairs can be made
within one hundred twenty (120) 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 the making of such repairs
shall interfere with the business carried on by Lessee in
the Premises. If such repairs cannot be made in one hundred
twenty (120) days, Lessee may, at its option, terminate this
Lease. If Lessee does not elect to terminate, 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
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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 331/3% 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 in which the Premises may be
situated shall terminate this Lease. In the event of any
dispute between Lessor and Lessee relative to the provisions
of this paragraph, they shall each select an arbitrator, the
two arbitrators so selected shall select a third arbitrator
and the three arbitrators so selected shall hear and
determine the controversy and their decision thereon shall
be final and binding upon both Lessor and Lessee, who shall
bear the cost of such arbitration equally between them.
ASSIGNMENT 26. The Lessee shall not assign, transfer, or
AND SUBLET- hypothecate the leasehold estate under this Lease, or any
TING interest therein, and 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. Lessor agrees not to
unreasonably withhold or delay consent to sublet or assign.
As a condition for granting its consent to any subletting
the Lessor shall require the Lessee to agree to pay to the
Lessor, as additional rental, 50% after Lessee's costs and
expenses (including amortization of tenant, improvements,
brokerage fees and reasonable attorney's fees) of all 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 twenty (20) 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 ten (10) days after receipt of Lessee's
notice, Lessor shall either give approval to Lessee to
sublease the portion of the Premises described in Lessee's
notice, or Lessor shall terminate this Lease as to the
portion of the Premises described in Lessee's notice on the
date specified in Lessee's notice. If Lessee intends to
sublet the entire Premises and Lessor elects to terminate
this Lease, this Lease shall be terminated on the date
specified in Lessee's notice. If, however, this Lease shall
terminate pursuant to the foregoing with respect to less
than all the Premises, the rent, as defined and reserved
hereinabove shall be adjusted on a prorata basis to the
number of square feet retained by Lessee, and this Lease as
so amended shall continue in full force and effect. 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,
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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 Lessor's
expenses in connection with the assignment, not to exceed
$2,000 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.
CONDEMNATION 27. If any part of the premises shall be taken for any
public or quasi-public use, under any statute or by right
of eminent domain or private purchase in lieu thereof, and
a part thereof remains which is susceptible of occupation
hereunder, this Lease shall, as to the part so taken,
terminate as of the date title shall vest in the condemnor
or purchaser, and the rent payable hereunder shall be
adjusted so that 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 premises prior to such taking, but
in such event Lessor shall have the option to terminate
this Lease as of the date when title to the part so taken
vests in the condemnor or purchaser. If all of the
premises, or such part thereof be taken so that there does
not remain a portion susceptible for occupation hereunder,
this Lease shall thereupon terminate. If a part or all of
the Premises be taken, all compensation awarded upon such
taking shall go to the Lessor and the Lessee shall have no
claim thereto. Lessor promptly shall provide to Lessee
written notice of any circumstance of which it has
knowledge that will effect a total or partial termination
of this Lease under this paragraph.
EFFECT OF 28. The term "Lessor" as used in this Lease, means
CONVEYANCE only the owner for the time being of the land and building
containing the Premises so that, in the event of any sale
of said land or building, or in the event of a lease of
said building, the Lessor after having provided written
notice of such sale or lease to Lessee shall be and hereby
is entirely freed and relieved of all covenants and
obligations of the Lessor hereunder, and it shall be deemed
and construed, without further agreement between the
parties and the purchaser at any such sale, or the Lessee
of the building, that 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 may 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.
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SUBORDINATION 29. Lessee agrees that this Lease may, at the option of
Lessor, 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.
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 OVER 31. Any holding over after the expiration of the said
term, with the consent of Lessor, shall be construed to be
a tenancy from month to month, at a rental rate equal to
125% of the base rate in effect at the expiration of such
term for the first 10 business days of such holdover
tenancy and 150% of such lease rate thereafter, and shall
otherwise be on the terms and conditions herein specified,
so far as applicable.
SUCCESSORS AND 32. The covenants and conditions herein contained
ASSIGNS shall, subject to the provisions as to assignment, apply to
and bind the heirs, successors, executors, administrators
and assigns of all of the parties hereto; and all of the
parties hereto shall be jointly and severally liable
hereunder.
TIME 33. Time is of the essence of this Lease.
MARGINAL CAPTIONS 34. The marginal headings or titles to the paragraphs
of this Lease are not a part of this Lease and shall have
no effect upon the construction or interpretation of any
part thereof. This instrument contains all of the
agreements and conditions made between the parties hereto
and may not be modified orally or in any other manner than
by an agreement in writing signed by all of the parties
hereto or their respective successors in interest.
PARAGRAPHS 35 THROUGH 37 AND MEMORANDUM OF UNDERSTANDING
ATTACHED HERETO ARE HEREBY MADE A PART OF THIS LEASE.
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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
X.X. XXXXXX, X. X. XXXXXXX OpenTV, Inc.
ET AL
/s/ X.X. Xxxxxxx Xxxxxxx X. Xxxxxxxxxx
-------------------------- -------------------------
/s/ Xxxxxxx X. Xxxxxxxxxx
-------------------------- -------------------------
January 18, 2000 Chief Financial Officer
-------------------------- -------------------------
-11-
ADDITIONAL PARAGRAPHS
These additional paragraphs are hereby made a part of that certain Lease dated
January 15, 2000 by and between X.X. Xxxxxx, X.X.Xxxxxxx et al, Lessor, and
OpenTV, Inc., a Delaware corporation, Lessee, covering the Premises at 000 X.
Xxxxxxxxxxx Xxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx.
35. The Lessor hereby grants to the Lessee the option of renewing this Lease
for an additional five (5) year term to commence at the termination of this
Lease. The Lessee may exercise this option by providing written notice to Lessor
of its intent to exercise the option not less than one hundred twenty (120) days
but not more than one hundred eighty (180) days prior to expiration of the
original term and then by executing a Memorandum of Extension once the rental
has been agreed upon by Lessor and Lessee in accordance with the following
procedures: The option term shall be governed by all the same terms and
conditions as are contained in this Lease excepting that there are to be no
additional options and also excepting the basic monthly rental, which is to be
adjusted for the option term as follows: The new monthly rental and escalator
provisions for the additional term shall be equal to the then current fair
market rent for the property and agreed upon by Lessor and Lessee within thirty
(30) days after the option is exercised. In the event that Lessor and Lessee
cannot agree upon the new rental amount and/or escalator provisions, within the
above thirty (30) day period, then the Lessor and Lessee shall each pick an
arbitrator who is qualified in commercial and industrial rentals in the general
area and these two arbitrators will select a third arbitrator with the same
qualifications. A minimum of two out of three of the arbitrators must agree on
the rental schedule for the option term within thirty (30) days after their
appointment. However, the option rental shall not be less than the rental during
the final year of the of the original Lease without the approval of the Lessor.
36. Lessee shall have the right to install satellite dishes or other antenna on
the roof of the Premises, provided that such installation is conducted in
accordance with all law's and regulations, including local zoning laws, and in a
manner which does not impair the structural integrity of the building. At the
termination of the Lease, Lessee shall remove this equipment, make all necessary
repairs and return roof to its condition prior to installation.
37. Hazardous Substances:
--------------------
a) Lessee agrees that any and all handling, transportation, storage,
treatment, disposal, or use of hazardous substances by Lessee in or about the
Premises shall strictly comply with all applicable environmental laws.
b) Lessee agrees to indemnify and hold Lessor harmless from any
liabilities, losses, claims, damages, penalties, fines, attorney fees, expert
fees, court costs, remediation costs, investigation costs, or other expenses
resulting from or arising out of the use, storage, treatment, transportation,
release, or disposal of hazardous substances on or about the Premises by Lessee.
c) If the presence of hazardous substances on the Premises caused or
permitted by Lessee results in the contamination or deterioration of the
Premises or any water or soil beneath the Premises, Lessee shall promptly take
all action necessary to investigate and remedy that contamination.
d) Lessee and Lessor each agree to promptly notify the other of any
communication received form any governmental entity concerning hazardous
substances or the violation of environmental laws that relate to the Premises.
e) Lessee shall not use, handle, store, transport, generate, release, or
dispose of any hazardous substances on, under, or about the Premises, except
that Lessee may use (i) small quantities of common chemicals such as adhesives,
lubricants, and cleaning fluids in order to conduct business at the Premises and
(ii) other hazardous substances that are necessary for the operation of Lessee's
business and for which Lessor gives written consent prior to the hazardous
substances being brought onto the Premises. At any time during the term of this
Lease, Lessee shall, within ten (10) days after written request from Lessor,
disclose in writing all hazardous substances that are being used by Lessee on
the Premises, the nature of the use, and the manner of storage and disposal.
f) At any time and upon prior written notice to Lessee, Lessor may
require testing xxxxx to be drilled on the Premises and may require the ground
water to be tested to detect the presence of hazardous substances by the use of
any tests that are then customarily used for those purposes. Lessor shall supply
Lessee with copies of the test results. The cost of these tests and the
installation, maintenance, repair, and replacement of the xxxxx shall be paid by
Lessee if the test disclose the existence of facts that give rise to liability
of Lessee pursuant to this Paragraph 37.
g) Lessor will indemnify Lessee from and against all costs of response,
corrective action, remedial action, claims, demands, losses and liabilities
arising from any preexisting environmental contamination which may have occurred
prior to the Lessee taking possession of the Premises.
-2-
MEMORANDUM OF UNDERSTANDING
Parties: X.X. Xxxxxx, X.X. Xxxxxxx et al, Lessor
OpenTV, Inc., a Delaware corporation, Lessee
Date: January 15, 2000
Re: That certain Lease dated January 15, 2000 by and between
X.X. Xxxxxx, X.X. Xxxxxxx et al, Lessor and OpenTV,
Inc., a Delaware corporation, Lessee for an approximate
17,000 square foot portion of an approximate 25,000
square foot industrial building commonly referred to as
000 X. Xxxxxxxxxxx Xxxx, Xxxxxxxx View and further
described in Exhibits "A" attached hereto.
It is agreed as follows:
Lessor grants to Lessee the First Right of Refusal to lease the remaining space
of approximately 8,000 square foot at 000 X. Xxxxxxxxxxx Xxxx, Xxxxxxxx View
when it becomes available under the following terms and conditions. If space
becomes available at 000 X. Xxxxxxxxxxx Xxxx, Lessor shall advise Lessee by
written notification of its availability and of Lessor's terms and conditions
including monthly rental amount. Lessee shall have 20 days after the date of
said notification of availability to accept or reject Lessor's terms and
conditions. If no written acceptance is received by the Lessor from the Lessee
within this 20-day period, Lessor shall be free to offer the space on the open
market on the same terms and at the same rental as was offered to Lessee. If
however, Lessor should decide to lease the space at a different rental or under
different terms and conditions, then Lessee shall be given 3 business days to
accept or reject the new proposal. If no written acceptance is received by the
Lessor within the above 3 day period, Lessor shall be free to lease the space at
the different price or different terms and conditions, without further
obligation to Lessee.
With respect to par 10 of the Lease, Lessor agrees to take responsibility for
the maintenance of the roof, landscaping and parking lot and all other exterior
portions of the Property, including the building, Lessee agrees to pay to Lessor
a common area maintenance (CAM) (roof and parking lot maintenance and
landscaping) charge of $340.00/mo. to recompense Lessor for the costs of these
services for the year 2000-2001. Lessor and Lessee agree that these charges may
vary from year to year; however, Lessor agrees that on no account will the
increase in any one year exceed the previous year by more than 10%. It is
understood that these charges are for maintenance only. Any capital replacement
or special HVAC cost shall be prorated between the Parties and Lessee shall only
be obligated to pay a monthly amount equal to the product of multiplying the
cost of such replacement by a fraction, the numerator of which is one, and the
denominator of which is the number of months of the useful life of such
replacement as such useful life is specified pursuant to Federal income tax
regulations or guidelines for depreciation thereof (including interest on the
unamortized balance as is then commercially reasonable in the judgement of
Lessor's accountants). Said costs shall be amortized over the useful life of
such improvement.
Accepted for OpenTV, Inc. Accepted for X.X. Xxxxxx, X.X. Xxxxxxx et al
a Delaware Corporation
By: /s/ Xxxxxxx X. Xxxxxxxxxx By: /s/ X.X. Xxxxxxx
---------------------------- --------------------
Date: 13 January 2000 Date: January 18, 2000
-------------------------- ------------------
-2-
REVISED INSURANCE CLAUSE
This Lease Clause replaces the Insurance Clause (11.) in the Renault &Handley
Net Lease Form.
11. Lessee shall not use, or permit the Premises, or any part thereof, to be
used, for any purposes other than that for which the Premises are hereby leased;
and no use shall be made or permitted to be made on the Premises, nor acts done,
which will cause a cancellation of any insurance policy covering said building,
or any part thereof, nor shall Lessee sell or permit to be kept, used or sold,
in or about 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,
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.
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, in such amounts and with such coverage as Lessor deems advisable.
11.4 Lessee shall pay to Lessor as additional rent, during the term hereof,
upon receipt of an invoice therefore, (sixty-eight) 68 percent of the premiums
for an 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.
Exhibit A
[Schematic]
