California-Mountain View-415 East Middlefield Road Lease - Renault & Handley Employees Investment Co. and Open TV Inc.
Renault & Handley
INDUSTRIAL & COMMERCIAL REAL ESTATE
This Lease, executed in duplicate at Palo Alto, California,
PARTIES this 15/th/ day of January, 2001 by and between Renault &
Handley Employees Investment Co.
and
Open TV, Inc.
hereinafter referred to respectively as "Lessor" , without
regard to number or gender,
PREMISES 1. WITNESSETH: That Lessor hereby leases to Lessee, and Lessee
hires from Lessor, those certain premises, hereinafter referred to as
"the Premises," situated in the CIty of Mountain View, County of Santa
Clara, State of California, and more particularly described as
follows:
An approximate 25,000 square foot industrial building
situated on an approximate two-acre lot commonly know as 415 East
Middlefield Road. The Premises includes the building, lot and all
parking thereon.
USE 2. The Premises shall be used and occupied by Lessee solely for
the following purposes:
general office, sales and marketing, research and development, and for
no other purpose without the prior written consent of Lessor.
TERM 3. The term shall be for three (3) years and eight (8) months,
commencing on the 1/st/ day of March, 2001 and ending on the 31/st/
day of October, 2004.
RENTAL 4. Base Monthly Rent shall be payable to the Lessor without
defence, deduction or offset at the address set forth in paragraph 23
below, or at such other place or places as may be designated from time
to time by the Lessor, in the following amounts:
One Hundred Seventy Five Thousand and No/100th Dollars
($175,000.00) shall be due upon execution of this Lease representing
rental due March 1, 2001. $175,000.00 shall be due on April 1, 2001.
and on the first day of each and every month through February 1/st/
2002. One Hundred Eighty Two Dollars and No/100ths ($182,000.00) shall
be due March 1, 2002 and on the first day of each and every month
through February 1/st/ 2003. One Hundred Eighty Nine Thousand Two
Hundred Eighty and No/100ths Dollars ($189,280.00) shall be due March
1, 2003 and on the first day of each and every month through February
1/st/ 2004. One Hundred Ninety Six Thousand Eight Hundred Fifty One
and 20/100ths Dollars ($196,851.20) shall be due March 1, 2004 and on
the first day of each and every month through October 1/st/ 2004.
Base Monthly Rent shall be paid monthly in advance. In addition,
Lessee shall pay to Lessor with the Base Monthly Rent, as additional
rent, a monthly management fee equal to one and one half percent (1
1/2%) of the Base Monthly Rent. All other costs and charges payable by
Lessee in accordance with the terms of this Lease (including property
taxes, insurance premiums and maintenance costs) shall be deemed to be
additional rent.
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SECURITY 5. Lessee has deposited with Lessor $21,250.00 as security for
DEPOSIT the full and faithful performance of each and every term, provision,
covenant and condition of this Lease. In the event Lessee defaults
in respect of any of the terms, provisions, covenants or conditions
of this Lease, including, but not limited to the payment of rent,
Lessor may use, apply or retain the whole or any part of such
security for the payment of any rent in default or for any other sum
which Lessor may spend or be required to spend by reason of Lessee's
default. Should Lessee faithfully and fully comply with all of the
terms, provisions, covenants and conditions of this Lease, the
security or any balance thereof shall be returned to Lessee or, at
the option of Lessor, to the last assignee of Lessee's interest in
this Lease at the expiration of the term hereof. Lessee shall not be
entitled to any interest on said security deposit.
POSSESSION 6. If Lessor, for any reason whatsoever, cannot deliver
possession of the Premises to Lessee at the commencement of the said
term, as hereinbefore specified, this Lease shall not be void or
voidable, nor shall Lessor, or Lessor's agents, be liable to Lessee
for any loss or damage resulting therefrom; but in that event the
commencement and termination dates of the Lease and all other dates
affected thereby shall be revised to conform to the date of Lessor's
delivery of possession. Notwithstanding the foregoing, if the period
of delay of delivery exceeds ____ days, Lessee, at his or its
option, may declare this Lease null and void by notice to Lessor at
any time prior to delivery of the Premises.
ACCEPTANCE 7. By entry hereunder, the Lessee accepts the Premises from
OF Lessor in its "as is", "where is" condition. Lessor has made no
PREMISES representations or warranties respecting the Premises and Lessee has
AND investigated and inspected the Premises and has satisfied itself
CONSENT TO that the Premises are suitable for the Lessee's intended use thereof
SURRENDER and are in compliance with applicable laws and codes; provided,
however, Lessor hereby warrants that it shall repair any material
defects in the roof covering, HVAC, electrical and plumbing systems
existing as of the commencement of the Lease, provided Lessee gives
Lessor written notice specifying such defects in reasonable detail
within thirty (30) days following commencement of this Lease. Lessor
shall have no obligation to contribute toward any tenant
improvements to the Premises whatsoever. The Lessee agrees on the
last day of the term hereof, or on sooner termination of this Lease,
to surrender to Lessor the Premises, which shall, except as
otherwise provided in paragraph 9 below, include all alterations,
additions, and improvements which may have been made in, to, or on
the Premises by Lessor or Lessee, in the same good condition as at
Lessee's entry into the Premises excepting for such wear and tear as
would be normal for the period of the Lessee's occupancy. The
Lessee, on or before the end of the term or sooner termination of
this Lease, shall remove all Lessee's personal property and trade
fixtures from the premises and all property not so removed shall be
deemed to be abandoned by the Lessee. If the Premises are 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, any waste
PROHIBITED 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 designated 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. Lessee shall make no alterations, additions or improvements
AND to the Premises or any part thereof (collectively "Alterations")
ADDITIONS without first obtaining the prior written consent of the Lessor. All
Alterations shall be in accordance with plans and specifications
approved by Lessor and shall be carried out by a reputable licensed
contractor and in compliance with all applicable laws, codes, rules
and regulations. The Lessor may impose as a condition to the
aforesaid consent such additional reasonable requirements as Lessor
may deem necessary in Lessor's sole discretion, including without
limitation requirements respecting the manner in which the work is
done, Lessor's right of approval of the contractor by whom the work
is to be performed, and the times during which it is to be
accomplished. Upon written request of Lessor prior to the expiration
or earlier termination of the Lease, Lessee will remove any or all
Alterations installed by or for Lessee. All Alterations not
specified to be removed shall at the expiration of 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
give the Lessor five (5) business days notice prior to the
commencement of any Alterations work and will at all times permit
notices of non-responsibility to be posted and to remain posted
until the completion of Alterations.
MAINTE- 10. Lessee shall, at Lessee's sole cost, keep and maintain the
NANCE OF Premises and appurtenances and every part thereof, including but not
PREMISES limited to, glazing, sidewalks, plumbing, and electrical systems,
any store front, exterior paint and all components of the interior
of the Premises in good order, condition, and repair. Lessor shall,
at Lessor's sole cost and expense, maintain the structural integrity
of the exterior walls, and structural portions of the roof,
foundations and floors, except that Lessee shall pay, as additional
rent, the cost of any repairs or replacements necessitated by the
negligence or wrongful act of the Lessee or Lessee's agents or
employees. Lessee shall, at Lessee's sole cost and expense,
maintain, repair and (if necessary in the judgment of Lessor's
experts) replace the roof covering, HVAC system, landscaping and
parking lot surface during the term of this Lease, as may be
extended. With respect to the replacement of capital items, the
Lessee will only be responsible to reimburse the Lessor as
Additional Rent, its pro rata share of the cost of said items, based
upon the useful life of the items and the remaining term of the
Lease including any extension thereof. Lessee expressly waives the
benefits of any statute
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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 11. Lessee shall not use, or permit the Premises, or any part
EXTENDED thereof, to be used, for any purposes other than that for which
COVERAGE the Premises are hereby leased and no use shall be made or
INSURANCE permitted to be made on the Premises, nor acts done, which will
AND cause a cancellation of any insurance policy covering the
SUBROGATION Premises, 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 its 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 commercial general
liability insurance (including cross liability) insuring Lessee,
Lessor, Lessor's Officers, Lessor's property manager and Lessor's
lender, against any liability arising out of the condition, use,
occupancy or maintenance of the Premises. Evidence of coverage
must be in the form of a certificate of insurance accompanied by
the appropriate additional insured endorsements. Such insurance
policy shall have a combined single limit for both bodily injury
and property damage in an amount not less than Two Million and
no/100ths Dollars ($2,000,000), which aggregate amount shall be
specific to the Premises. 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 a special form with a sprinkler leakage endorsement,
insuring Lessee's inventory, fixtures, equipment and personal
property within the Premises for the full replacement value
thereof. Upon execution of this Lease and annually thereafter
upon renewal of such policies, Lessee shall provide Lessor with
certificates of insurance, together with appropriate
endorsements, evidencing coverages the Lessee is required to
carry pursuant to 11.1 and 11.2. The policies shall provide for
thirty (30) days advance written notice of cancellation to Lessor
and Lessor's lender.
11.3 Lessor shall maintain a policy of commercial general
liability insurance and a policy or policies of fire and property
damage insurance in a "special" form, with sprinkler leakage and,
at the option of Lessor, earthquake endorsements, covering loss
or damage to the building, including Lessee's leasehold
improvements installed with the written consent of Lessor, for
the full replacement cost thereof.
11.4 Lessee shall pay to Lessor as additional rent, during
the term hereof, upon receipt of an invoice therefore, one
hundred percent (100%) of the premiums and deductibles (provided,
the deductible amount shall be amortized over the useful life of
the improvement for which such insurance deductible is applicable
and Lessee shall only be obligated to reimburse Lessor for the
amortized portion of the deductible amount that occurs during the
term of this Lease) for any insurance obtained by Lessor pursuant
to 11.3 above. Lessor may obtain such insurance for the Premises
separately, or together with other property 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 waive 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 others under its control, to the extent
such loss or damage is insured against under any insurance policy
carried or required to be carried by Lessor or Lessee hereunder.
Each party shall notify their respective insurance carriers of
this waiver.
ABANDON- 12. Lessee shall not abandon the Premises at any time during the
MENT 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 which the
LIENS Premises are situated, free from any liens arising out of any
work performed, materials furnished, or obligations incurred by
Lessee. The Lessee may contest any lien filed against the
Premises through its actions provided that it posts a bond
adequate to protect Lessor's interests.
COMPLIANCE 14. Lessee shall, at his sole cost and expense, comply with
WITH all statutes, codes, ordinances, rules, regulations and other
GOVERN- requirements of all Municipal, State and Federal authorities
MENTAL (collectively, "Laws") now in force, or which may hereafter be in
REGULATIONS force, pertaining to the Premises, and shall faithfully 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 or not, that Lessee has
violated, or that the Premises are not in compliance with, any
Laws in the use of the Premises, shall be conclusive of that fact
as between Lessor and Lessee. Lessee's obligations under this
paragraph 14 shall include the obligation to make, at Lessee's
sole cost, any alterations or improvements to the Premises which
are required by applicable Laws, provided that (a) as to such
alterations or improvements which are not required by reason of
Lessee's particular use of the Premises or by reason of other
alterations or improvements being undertaken by Lessee, Lessee
shall only be required to pay an allocable portion of the costs
of such required alterations or improvements based on the ratio
of the remaining lease term to the useful life of such
alterations or improvements, and (b) Lessee shall not be required
to pay any portion of the cost of alterations or improvements
which are legally required to be made as of the date of this
Lease and as to which Lessor receives notice of such requirement
prior to the date thirty (30) days after the date Lessor delivers
possession of the Premises to Lessee.
INDEMNI- 15. Neither Lessor nor Lessor's agents, nor any shareholder,
FICATION OF constituent partner or other owner of Lessor or any agent of
LESSOR Lessor, nor any contractor, officer, director or employee of any
thereof shall be liable to Lessee and Lessee waives all claims
against Lessor and such other persons for any injury to or death
of any person or for loss of use of or damage to or destruction
of property in or about the Premises by or from any cause
whatsoever, unless caused solely by the negligence or willful
misconduct of Lessor, its agents or employees. Lessee agrees to
indemnify
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and hold Lessor, Lessor's agents, the shareholders, constituent
partners and/or other owners of Lessor or any agent of Lessor,
and all contractors, officers, directors and employees of any
thereof (collectively, "Indemnitees"), and each of them, harmless
from and to protect and defend each Indemnitee against any and
all claims, demands, suits, liability, damage or loss and against
all costs and expenses, including reasonable attorneys' fees
incurred in connection therewith, (a) arising out of any injury
or death of any person or damage to or destruction of property
occurring in, on or about the Premises, from any cause
whatsoever, unless caused solely by the gross negligence or
willful misconduct of such Indemnitee, or (b) occurring in, on or
about the Premises, when such claim, injury or damage is caused
or allegedly caused in whole or in part by the act, neglect,
default, or omission of any duty by Lessee, its former or current
agents, contractors, employees, invitees, or subtenants, or (c)
arising from any failure of Lessee to observe or perform any of
its obligation hereunder. The provisions of this paragraph shall
survive the termination of this Lease with respect to any claims
or liability occurring prior to such termination.
ADVERTISE- 16. Lessee will not place or permit to be placed, in, upon
MENTS AND or about the Premises and unusual or extraordinary signs, or any
SIGNS signs not approved by the city or other governing authority. The
Lessee will not place, or permit to be placed upon the Premises,
any signs, advertisements or notices without the written consent
of the Lessor first had and obtained. Any sign so placed on the
Premises shall be so placed upon the understanding and agreement
that Lessee will remove same at the termination of the tenancy
herein created and repair any damage or injury to the Premises
caused thereby, and if not so removed by Lessee then Lessor may
have same so removed at Lessee's expense.
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, Lessee
shall pay to Lessor its share of the water bill for the entire
property covered by said bill and of which the Premises are a
part, as determined by Lessor based on square footage or other
equitable method.
ATTORNEY'S 18. In case suit should be brought for the possession of the
FEES Premises, for the recovery of any sum due hereunder, or because
of the breach of any other covenant herein, the losing party
shall pay to the prevailing party a reasonable attorney's fee,
which shall be deemed to have accrued on the commencement of
such action and shall be enforceable whether or not such action
is prosecuted to judgment.
DEFAULT AND 19. The occurrence of any one or more of the following
REMEDIES events (each an "Event of Default") shall constitute a breach of
this Lease by Lessee:
(a) Lessee fails to pay any Base Monthly Rent or
additional rent under this Lease as and when it becomes
due and payable and such failure continues for more than
ten (10) days; or
(b) Lessee fail to perform or breaches any other
covenant of this Lease to be performed or observed by
Lessee as and when performance or observance is due and
such failure or breach continues for more than ten (10)
days after Lessor gives written notice thereof to
Lessee; provided, however, that if such failure or
breach cannot reasonably be cured within such period of
ten (10) days, an Event of Default shall not exist as
long as Lessee commences with due diligence and dispatch
the curing of such failure or breach within such period
to ten (10) days and, having so commenced, thereafter
prosecutes with diligence and dispatch and completes the
curing of such failure or breach within a reasonable
time; or
(c) Lessee files, or consents by answer or otherwise
to the filing against it of, a petition for relief or
reorganization or arrangement or any other petition in
bankruptcy or for liquidation or to take advantage of
any bankruptcy, insolvency or other debtors' relief law
of any jurisdiction; makes an assignment for the benefit
of its creditors; or consents to the appointment of a
custodian, receiver, trustee or other officer with
similar powers of Lessee or of any substantial part of
Lessee's property; or
(d) A court or government authority enters an
order, and such order is not vacated within thirty (30)
days, appointing a custodian, receiver, trustee or other
officer with similar powers with respect to Lessee or
with respect to any substantial part of Lessee's
property; or constituting an order for relief or
approving a petition for relief or reorganization or
arrangement or any other petition in bankruptcy or for
liquidation or to take advantage of any bankruptcy,
insolvency or other debtors' relief law of any
jurisdiction; or ordering the dissolution, winding-up or
liquidation of Lessee; or
(e) Lessee abandons the Premises.
19.1 If an Event of Default occurs, Lessor shall have the
right at any time to give a written termination notice to Lessee
and, on the date specified in such notice, Lessee's right to
possession shall terminate and this Lease shall terminate. Upon
such termination, Lessor shall have the right to recover from
Lessee:
(i) The worth at the time of award of all unpaid rent
which had been earned at the time of termination;
(ii) The worth at the time of award of the amount by
which all unpaid rent which would have been earned after
termination until the time of award exceeds the amount
of such rental loss that Lessee proves could have been
reasonably avoided;
(iii) The worth at the time of award of the amount by
which all unpaid rent for the balance of the term of
this Lease after the time of award exceeds the amount of
such rental loss that Lessee proves could be reasonably
avoided; and
(iv) All other amounts necessary to compensate Lessor
for all the detriment proximately caused by Lessee's
failure to perform all of Lessee's obligations under
this Lease or which in the ordinary course of things
would be likely to result therefrom.
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The "worth at the time of award" of the amounts referred to in
clauses (i) and (ii) above shall be computed by allowing interest
at the maximum annual interest rate allowed by law for business
loans (not primarily for personal, family or household purposes)
not exempt from the usury law at the time of termination or, if
there is no such maximum annual interest rate, at the rate of
seven percent (7%) per annum. The "worth at the time of award" of
the amount referred to in clause (iii) above shall be computed by
discounting such amount at the discount rate of the Federal
Reserve Bank of San Francisco at the time of award plus one
percent (1%). For the purpose of determining unpaid rent under
clauses (i), (ii) and (iii) above, the rent reserved in this
Lease shall be deemed to be the total rent payable by Lessee
under this Lease, including Base Monthly Rent, additional rent
and all other sums payable by Lessee under this Lease.
19.2 Even though Lessee has breached this Lease, this Lease
shall continue in effect for so long as Lessor does not terminate
Lessee's right to possession, and Lessor shall have all of its
rights and remedies, including the right, pursuant to California
Civil Code section 1951.4, to recover all rent as it becomes due
under this Lease. Acts of maintenance or preservation or efforts
to relet the Premises or the appointment of a receiver upon
initiative of Lessor to protect Lessor's interest under this
Lease shall not constitute a termination of Lessee's right to
possession unless written notice of termination is given by
Lessor or Lessee.
19.3 The remedies provided for in this Lease are in addition to
all other remedies available to Lessor at law or in equity by
statute or otherwise.
19.4 For all purposes in this Lease, the term "abandonment" and
"abandon" shall refer to abandonment of the Premises by Lessee
for any period during which Lessee is in default in the payment
of rent or other obligation of Lessee hereunder (other than the
obligation not to abandon the Premises).
LATE 20. Lessee hereby acknowledges that late payment by Lessee to
CHARGES AND Lessor of rent and other sums due hereunder will cause Lessor to
INTEREST incur costs 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. The Lessor will
provide verbal (via telephone) and written notice (via facsimile)
to the Lessee after the fifth day of the month if the rental
payment is late. 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 Lessee's default with respect to
such overdue amount, nor prevent Lessor from exercising any of
the other rights and remedies granted hereunder.
If any rent payable under the Lease remains delinquent for a
period in excess of ten (10) calendar days, then, in addition to
any late charge payable, Lessee shall pay to Lessor interest on
any rent that is not so paid from the date due until paid at the
then maximum rate of interest not prohibited or made usurious by
Law.
SURRENDER 21. The voluntary or other surrender of this Lease by Lessee,
OF LEASE or a mutual cancellation thereof, shall not work a merger, and
shall, at the option of Lessor, terminate all or any existing
subleases or subtenancies, or may, at the option of Lessor,
operate as an assignment to Lessor of any or all such subleases
or subtenancies.
TAXES 22. The Lessee shall be liable for all taxes levied against
personal property and trade or business fixtures. The Lessee also
agrees to pay, as additional rental, during the term of this
Lease and any extensions thereof, all real estate taxes plus the
yearly installments of any special assessments which are of
record or which may become of record during the term of this
lease. If the Premises are a portion of a tax parcel or parcels
and this Lease does not cover an entire tax parcel or parcels,
the taxes and assessment installments allocated to the Premises
shall be prorated on a square footage or other equitable basis,
as calculated by the Lessor. It is understood and agreed that the
Lessee's obligation under this paragraph will be pro-rated to
reflect the commencement and termination dates of this Lease.
NOTICES 23. All notices to be given to Lessee may be given in writing
personally, by commercial overnight courier or by depositing the
same in the United States mail, postage prepaid, and addressed to
Lessee at the said Premises, whether or not Lessee has departed
from, abandoned or vacated the Premises, and any other address of
Lessee set forth below. Notices given in accordance with this
paragraph shall be deemed received one business day after sent by
commercial overnight courier, three business days after being
deposited in the United States mail, or when delivered if
delivered personally. All notices to be given to Lessor may be
given in writing personally or by depositing the same in the
United States mail, postage prepaid, and addressed to Lessor at
the following address or such other address as Lessor may, from
time to time designate:
c/o Renault & Handley Lessee:
2500 El Camino Real, Suite 100 OpenTV, Inc.
Palo Alto, CA 94306 401 E. Middlefield Rd
Mountain View CA 94043
attn: Real Estate
ENTRY BY 24. Lessee shall permit Lessor and his agents to enter into and
LESSOR upon the Premises at all reasonable times for the purpose of
inspecting the same or for the purpose of maintaining the
building in which the Premises are situated, or for the purpose
of making repairs, alterations or additions to any other portion
of said building, including the erection and maintenance of such
scaffolding, canopies, fences and props as may be required
without any rebate or 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 "For Lease" signs and exhibit the Premises to
prospective tenants at reasonable hours.
DESTRUCTION 25. In the event of a partial destruction of the Premises
OF during the term of this Lease from any cause covered by insurance
PREMISES carried, or required to be carried, by Lessor under this Lease,
Lessor shall forthwith repair the same, provided such repairs can
be made within ninety (90) days under the laws and regulations
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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 damage and
making of such repairs shall interfere with the business carried
on by Lessee in the Premises. If the cause of such repairs is not
so covered by insurance or cannot be made in ninety (90) days,
Lessor may, at his option, make same within a reasonable time,
this Lease continuing in full force and effect and the rent to be
proportionately reduced as aforesaid in this paragraph provided.
In the event that Lessor does not so elect to make such repairs
the cause of which is not so covered by insurance or cannot be
made in ninety (90) days, or such repairs cannot be made under
such laws and regulations, this Lease may be terminated at the
option of either party. In respect to any partial destruction
which Lessor is obligated to repair or may elect to repair under
the terms of this paragraph, the provision of Section 1932,
Subdivision 2, and of Section 1933, Subdivision 4, of the Civil
Code of the State of California are waived by Lessee. In the
event that the building in which the Premises may be situated be
destroyed to the extent of not less than 33 1/3% 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 hypothecate
AND SUBLET- the leasehold estate under this Lease, or any interest therein,
TING 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 shall not unreasonably withhold its consent to a
subletting or assignment. The Lessee shall, by thirty (30)
days written notice, advise the Lessor of its intent to assign
this Lease or sublet the Premises or any portion thereof for any
part of the term hereof, which notice shall include a description
of all of the material terms of such assignment or subletting,
and a reasonably detailed description of the proposed assignee or
sublessee and its business and financial condition. Within thirty
(30) days after receipt of Lessee's notice, Lessor shall either
give approval to Lessee to assign the Lease or sublease the
portion of the Premises described in Lessee's notice, or notify
Lessee of Lessor's disapproval. In addition, Lessor shall have
right to 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 assign this Lease or 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 an assignment or subletting, the
Lessee may assign or 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, then 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. In the event of any approved assignment or
subletting, Lessee shall pay to the Lessor, as additional rental,
fifty percent (50%) of all assignment proceeds and rents received
by the Lessee from its assignee or sublessee which are in excess
of the amount payable by the Lessee to the Lessor hereunder,
after deducting the amount of any market rate real estate
brokerage commissions paid by Lessee in connection with the
assignment or subletting. A consent of Lessor to one assignment,
transfer, hypothecation, subletting, occupation or use by any
other person shall not release Lessee from any of Lessee's
obligations hereunder or be deemed to be a consent to any
subsequent similar or dissimilar assignment, transfer,
hypothecation, subletting, occupation or use by any other person.
Any such assignment, transfer, hypothecation, subletting,
occupation or use without such consent shall be void and shall
constitute a breach of this Lease by Lessee and shall, at the
option of Lessor exercised by written notice to Lessee, terminate
this Lease. The leasehold estate under this Lease shall not, nor
shall any interest therein, be assignable for any purpose by
operation of law without the written consent of Lessor which
consent shall not be unreasonable withheld. As a condition to its
consent, Lessor may require Lessee to pay all expenses in
connection with the assignment, and Lessor may require Lessee's
assignee or transferee (or other assignees or transferees) to
assume in writing all of the obligations under this Lease.
Any dissolution, merger, consolidation, recapitalization or
other reorganization of Lessee, or the sale or other transfer in
the aggregate over the term of the Lease of a controlling
percentage of the capital stock of Lessee (excluding transfers
over a national securities exchange), or the sale or transfer of
all or a substantial portion of the assets of Lessee, shall be
deemed a voluntary assignment of Lessee's interest in this Lease;
provided that, a merger consolidation, recapitalization,
reorganization or sale of assets shall not require Lessor's
consent hereunder unless Lessee's tangible net worth (determined
in accordance with generally accepted accounting principles)
immediately after such transaction is less than Lessee's tangible
net worth immediately prior to such transaction. The phrase
"controlling percentage" means the ownership of and the right to
vote stock possessing more than fifty percent of the total
combined voting power of all classes of Lessee's capital stock
issued, outstanding and entitled to vote for the election of
directors. If Lessee is a partnership, a withdrawal or change,
voluntary, involuntary or by operation of Law, of any general
partner, or the dissolution of the partnership, shall be deemed a
voluntary assignment of Lessee's interest in this Lease. In the
event that, through a merger, stock sale or other transaction,
Lessee becomes the subsidiary of any other entity (a "parent"),
Lessor shall have the right to require that the patent guaranty
all of Lessee's obligations under the Lease pursuant to a form of
guaranty reasonably satisfactory to Lessor provided that Lessee's
tangible net worth (determined in accordance with generally
accepted accounting principles) immediately after such
transaction is less than Lessee's tangible net worth immediately
prior to such transaction.
CONDEM- 27. If any part of the premises shall be taken for any
NATION 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
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<PAGE>
go to the Lessor and the Lessee shall have no claim thereto.
EFFECT OF 28. The term "Lessor" as used in this Lease, means only the
CONVEYANCE owner for the time being of the land and building containing the
Premises, so that, in the event of any sale of said land or
building, the Lessor shall be and hereby is entirely freed and
relieved of all covenants and obligations of the Lessor
hereunder, and it shall be deemed and construed, without further
agreement between the parties and the purchaser at any such sale,
that the purchaser of the building has assumed and agreed to
carry out any and all covenants and obligations of the Lessor
hereunder. If any security be given by the Lessee to secure the
faithful performance of all or any of the covenants of this Lease
on the part of the Lessee, the Lessor shall transfer and deliver
the security, as such, to the purchaser at any such sale, and
thereupon the Lessor shall be discharged from any further
liability in reference thereto.
SUBORDI- 29. Lessee agrees that this Lease shall be subject and
NATION 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 from a part,
and this subordination is hereby made effective without any
further act of Lessee provided, however, that the mortgagee or
lien holder executes a nondisturbance agreement in favor 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. Notwithstanding Lessee's
obligations, and the subordination of the Lease, under this
paragraph 29, no mortgagee, trustee or beneficiary under any deed
of trust or other instrument of security which may be placed on
the Premises shall have the right to terminate the Lease or
disturb Lessee's occupancy thereunder so long as no Event of
Default has occurred and is continuing under this Lease.
WAIVER 30. The waiver by Lessor of any breach of any term, covenant
or condition, herein contained shall not be deemed to be a waiver
of such term, covenant or condition or any subsequent breach of
the same or any other term, covenant or condition therein
contained. The subsequent acceptance of rent hereunder by Lessor
shall not be deemed to be a waiver of any preceding breach by
Lessee of any term, covenant or condition of this Lease, other
than the failure of Lessee to pay the particular rental so
accepted, regardless of Lessor's knowledge of such preceding
breach at the time of acceptance of such rent.
HOLDING 31. Any holding over after the expiration or other
OVER termination of the term of this Lease with the written consent of
Lessor, shall be construed to be a tenancy from month to month,
at a rental to be negotiated by Lessor and Lessee prior to the
expiration of said term, and shall otherwise be on the terms and
conditions herein specified, so far as applicable. Any holding
over after the expiration or other termination of the term of
this Lease without the written consent of Lessor shall be
construed to be a tenancy at sufferance on all the terms set
forth herein, except that the Base Monthly Rent shall be an
amount equal to one hundred and twenty five (125%) of the Base
Monthly Rent payable by Tenant immediately prior to such holding
over, or the fair market rent for the Premises as of such date,
whichever is greater.
SUCCESSORS 32. The covenants and conditions herein contained shall,
AND subject to the provisions as to assignment, apply to and bind the
ASSIGNS heirs, successors, executors, administrators and assigns of all
of the parties hereto; and all of the parties hereto shall be
jointly and severally liable hereunder.
TIME 33. Time is of the essence of this Lease.
MARGINAL 34. The marginal headings or titles to the paragraphs of
CAPTIONS; this Lease are not a part of this Lease and shall have no effect
COMPLETE upon the construction or interpretation of any part thereof. This
AGREEMENT; instrument contains all of the agreements and conditions made
AMENDMENT 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.
ENVIRON- 35. Lessee's obligations under this Paragraph 35 shall
MENTAL survive the expiration or termination of this Lease.
OBLIGATIONS
35.1 As used herein, the term "Hazardous Materials" shall
mean any toxic or hazardous substance, material or waste or any
pollutant or infectious or radioactive material, including but
not limited to those substances, materials or wastes regulated
now or in the future under any of the following statutes or
regulations and any and all of those substances included within
the definitions of "hazardous substances," "hazardous materials,"
"hazardous waste," "hazardous chemical substance or mixture,"
"imminently hazardous chemical substance or mixture," "toxic
substances," "hazardous air pollutant," "toxic pollutant," or
"solid waste" in the (a) Comprehensive Environmental Response,
Compensation and Liability Act of 1990 ("CERCLA" or "Superfund"),
as amended by the Superfund Amendments and Reauthorization Act of
1986 ("SARA"), 42 U.S.C. (S) 9601 et seq., (b) Resource
Conservation and Recovery Act of 1976 ("RCRA"), 42 U.S.C. (S)
6901 et seq., (c) Federal Water Pollution Control Act ("FSPCA"),
33 U.S.C (S) 1251 et seq., (d) Clean Air Act ("CAA"), 42 U.S.C.
(S) 7401 et seq., (e) Toxic Substances Control Act ("TSCA"), 14
U.S.C. (S) 2601 et seq., (f) Hazardous Materials Transportation
Act, 49 U.S.C. (S) 1801, et seq., (g) Carpenter-Presley-Tanner
Hazardous Substance Account Act ("California Superfund"), Cal.
Health & Safety Code (S) 25300 et seq., (h) California Hazardous
Waste Control Act Cal, Health & Safety code (S) 25100 et seq.,
(i) Porter-Cologne Water Quality Control Act ("Porter-Cologne
Act"), Cal. Water Code (S) 13000 et seq., (j) Hazardous Waste
Disposal Land Use Law, Cal. Health & Safety codes (S) 25220 et
seq., (k) Safe Drinking Water and Toxic Enforcement Act of 1986
("Proposition 65"), Cal. Health & Safety code (S) 25249.5 et
seq., (l) Hazardous Substances Underground Storage Tank Law, Cal.
Health & Safety code (S) 25280 et seq., (m) Air Resources Law,
Cal. Health & Safety Code (S) 39000 et seq , and (n) regulations
promulgated pursuant to said laws or any replacement thereof, or
as similar terms are defined in the federal, state and local
laws, statutes, regulations, orders or rules. The term "Hazardous
Materials" shall also mean any and all other biohazardous wastes
and substances, materials and wastes which are, or in the future
become, regulated under applicable Laws for the protection of
health or the environment, or which are classified as hazardous
or toxic substances, materials or wastes, pollutants or
contaminants, as defined, listed or regulated by any federal,
state or local law, regulation or order or by common law
decision. The term "Hazardous Materials" shall include, without
limitation, (i) trichloroethylene, tetrachloroethylene,
perchloroethylene and other chlorinated solvents, (ii) any
petroleum products or fractions thereof, (iii) asbestos, (iv)
polychlorinted biphenyls, (v) flammable explosives, (vi) urea
formaldehyde, (vii) radioactive materials and waste, and (viii)
materials and wastes that are harmful to or may threaten human
health, ecology or the environment.
<PAGE>
35.2 Notwithstanding anything to the contrary in this Lease, Lessee, at its
sole cost, shall comply with all Laws relating to the storage, use and disposal
of Hazardous Materials; provided, however, that Lessee shall not be responsible
for contamination of the Premises by Hazardous Materials existing as of the date
the Premises are delivered to Lessee unless caused by Lessee. Lessee shall not
store, use or dispose of any Hazardous Materials except for those Hazardous
Materials ("Permitted Materials") which are (a) listed in a Hazardous Materials
management plan ("HMMP") which Lessee shall submit to appropriate governmental
authorities as and when required under applicable Laws, and (b) are either
normal quantities or ordinary office supplies or are approved in writing by
Lessor. Lessee may use, store and dispose of Permitted Materials provided that
(i) such Permitted Materials are used, stored, transported, and disposed of in
strict compliance with applicable Laws, and (ii) such Permitted Materials shall
be limited to the materials listed on and may be used only in the quantities
specified in the HMMP. In no event shall Lessee cause or permit to be discharged
into the plumbing or sewage system of the Premises or onto the land underlying
or adjacent to the Premises any Hazardous Materials. If the presence of
Hazardous Materials on the Premises caused or permitted by Lessee results in
contamination or deterioration of water or soil, then Lessee shall promptly take
any and all action necessary to clean up such contamination, but the foregoing
shall in no event be deemed to constitute permission by Lessor to allow the
presence of such Hazardous Materials.
35.3 Lessee shall immediately notify Lessor in writing of:
(a) Any enforcement, cleanup, removal, or other governmental or regulatory
action instituted, completed or threatened against Lessee related to any
Hazardous Materials;
(b) Any claim made or threatened by any person against Lessee or the
Premises relating to damage, contribution, cost recovery compensation, loss or
injury resulting from or claimed to result from any Hazardous Materials; and,
(c) Any reports made to any environmental agency arising out of or in
connection with any Hazardous Materials in, discharged at, or removed from the
Premises, including any complaints, notices, warnings or asserted violations in
connection therewith.
Lessee shall also supply to Lessor as promptly as possible, and in any event
within five (5) business days after Lessee first receives or sends the same,
with copies of all claims, reports, complaints, notices, warnings or asserted
violations related in any way to the existence of Hazardous Materials at, in,
under or about the Premises or Lessee's use thereof. Lessee shall, upon Lessor's
request, promptly deliver to Lessor copies of any documents or information
relating to the use, storage or disposal of Hazardous Material on or from the
Premises.
35.4 Upon termination or expiration of the Lease, Lessee at its sole
expense shall cause all Hazardous Materials placed in or about the Premises, by
Lessee, its agents, contractors, or invitees, and all installations (whether
interior or exterior) made by or on behalf of Lessee relating to the storage,
use, disposal or transportation of Hazardous Materials to be removed from the
property and transported for use, storage or disposal in accordance and
compliance with all Laws and other requirements respecting Hazardous Materials
used or permitted to be used by Lessee. Lessee shall apply for and shall obtain
from all appropriate regulatory authorities (including any applicable fire
department or regional water quality control board) all permits, approvals and
clearances necessary for the closure of the Premises and shall take all other
actions as may be required to complete the closure of the Premises. To the
extent Lessee uses Hazardous Materials on the Premises, prior to vacating the
Premises, Lessee shall undertake and submit to Lessor an environmental site
assessment from an environmental consulting company reasonably acceptable to
Lessor which site assessment shall evidence Lessee's compliance with this
Paragraph 35.
35.5 At any time prior to expiration of the Lease term, subject to
reasonable prior notice (not less than forty-eight (48) hours) and Lessee's
reasonable security requirements and provided such activities do not
unreasonably interfere with the conduct of Lessee's business at the Leased
Premises, Lessor shall have the right to enter in and upon the Premises in order
to conduct appropriate tests of water and soil to determine whether levels of
any Hazardous Materials in excess of legally permissible levels has occurred as
a result of Lessee's use thereof. Lessor shall furnish copies of all such test
results and reports to Lessee and, at Lessee's option and cost, shall permit
split sampling for testing and analysis by Lessee. Such testing shall be at
Lessee's expense if Lessor has a reasonable basis for suspecting and confirms
the presence of Hazardous Materials in the soil or surface or ground water in,
on, under, or about the Premises, which has been caused by or resulted from the
activities of Lessee, its agents, contractors, or invitees.
35.6 Lessor may voluntarily cooperate in a reasonable manner with the
efforts of all governmental agencies in reducing actual or potential
environmental damage. Lessee shall not be entitled to terminate this Lease or to
any reduction in or abatement of rent by reason of such compliance or
cooperation unless Lessee's use of the Premises is interrupted for more than
five (5) consecutive business days. Lesses agrees at all times to cooperate
fully with the requirements and recommendations of governmental agencies
regulating, or otherwise involved in, the protection of the environment.
35.7 Lessee shall indemnify, defend by counsel reasonably acceptable to
Lessor, protect and hold Lessor and each of Lessor's partners, employees,
agents, attorneys, successors, and assignees, free and harmless from and against
any and all claims, damages, liabilities, penalties, forfeitures, losses or
expenses (including reasonable attorney's fees) or death of or injury to any
person or damage to any property whatsoever arising from or caused in whole or
in part, directly or indirectly by (A) the presence in, or under or about the
Premises or discharge in or from the Premises of any Hazardous Materials caused
by Lessee, its agents, employees, invitees, contractors, assignees, or Lessee's
use, analysis, storage, transportation, disposal, release, threatened release,
discharge or generation of Hazardous Materials to, in, on, under, about or from
the leased Premises or (B) Lessee's failure to comply with any Hazardous
Materials Law. Lessee's obligations hereunder shall include, without limitation,
whether foreseeable or unforeseeable, all costs, of any required or necessary
repair, cleanup or detoxification or decontamination of the Premises, and the
preparation and implementation of any closure, remedial action or other required
plans in connection therewith, and shall survive the expiration or earlier
termination of the term of this Lease. For purposes of indemnity provision
hereof, any actions or omissions of Lessee or by employees, agents, assignees,
contractors or subcontractors of Lessee or others acting for or on behalf of
Lessee (whether or not they are negligent, intentional, willful or unlawful)
shall be strictly attributable to Lessee.
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<PAGE>
LESSOR'S 36. If Lessee shall fail to perform any obligation or covenant
RIGHT TO pursuant to this Lease within a reasonable period of time (not to
PERFORM exceed 15 days) following notice from Lessor to do so, then Lessor
may, at its election and without waiving any other remedy it may
otherwise have under this Lease or at law, perform such obligation
or covenant and Lessee shall pay to Lessor, as Additional Rent, the
costs incurred by Lessor in performing such obligation or covenant.
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 & HANDLEY IS NOT
AUTHORIZED TO GIVE LEGAL AND TAX ADVICE. NO REPRESENTATION OR
RECOMMENDATION IS MADE BY RENAULT & HANDLEY 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:
Renault & Handley Employees Open TV, Inc.
Investment Co.
/s/ R.G. Handley /s/ Mark Meagher
---------------------------- ----------------------------
Managing Partner By: Mark Meagher
---------------------------- -------------------------
March 5/01 Its: VP Finance
---------------------------- ------------------------
By:__________________________
Its:_________________________
9