California-San Jose-2077 Gateway Place Lease - Spieker Properties LP and VLSI Libraries Inc.
GATEWAY OFFICE PARK
San Jose, California
[IMAGE OMITTED]
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BASIC LEASE INFORMATION
OFFICE LEASE
Lease Date December 13, 1995
Landlord SPIEKER PROPERTIES, L.P., a California Limited
Partnership
Address of Landlord: 2077 Gateway Place, Suite 100, San Jose, CA
95110
Tenant VLSI LIBRARIES INCORPORATED, a California Corporation
Address of Tenant: 3135 Kifer Road. Santa Clara, CA 95051
Contact Mark Templeton Telephone: 408-986-9300
President
PARAGRAPH 1 Premises: Approximately 16,797 square feet of rentable area (which includes a portion of the
building's common area) located on the third floor of the building known as 2077 Gateway Place. The
demised premises are approximately as shown in red on the attached floor plan (Exhibit B - Suite 300).
PARAGRAPH 2 Permitted Use: General and Administrative Use
PARAGRAPH 2 Occupancy Density 67 people.
PARAGRAPH 3 Scheduled Arm Commencement Date: March 1, 1996
PARAGRAPH 3 Scheduled Length of Term: Five (5) years
PARAGRAPH 3 Scheduled Term Expiration Date: February 28, 2001
PARAGRAPH 4 Rent: See Addendum 1 attached hereto
PARAGRAPH 15 Security Deposit: $38,297.00
PARAGRAPH 29 Tenant's Proportionate Share: 22.25%
The foregoing Basic Lease Information is incorporated into and
made a part of this Lease. Each reference in this Lease to any
of the Basic Lease Information shall mean the respective
information above set forth and shall be construed to incorporate
all of the terms provided under the Particular Lease paragraph
pertaining to such information. In the event of any conflict
between the Basic Lease Information and the Lease. the latter
shall control.
LANDLORD: TENANT:
SPIEKER PROPERTIES, L.P. VLSI LIBRARIES INCORPORATED, a
a California Limited Partnership California Corporation
By Spieker Properties, Inc., By /s/ Mark Templeton
a Maryland, Corporation Mark Templeton
Its General Manager Its President
By:/s/ John A. Foster
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John A. Foster
Senior Vice President
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TABLE OF CONTENTS
Page
Basic Lease Information 1
1. Premises 3
2. Occupancy 3
3. Term And Possession 3
4. Rent 3
5. Restrictions On Use 3
6. Compliance With Laws 3
7. Alterations 3
8. Repairs 3
9. Liens 4
10. Assignment And Subletting 4
11. Insurance And Indemnification 4
12. Waiver Of Subrogation 5
13. Service And Utilities 5
14. Estoppel Certificate 5
15. Security Deposit 6
16. Substitution 6
17. Holding Over 6
18. Subordination 6
19. Rules And Regulations 6
20. Re-Entry By Landlord 6
21. Default By Tenant 6
22. Damage By Fire, Etc. 7
23. Eminent Domain 8
24. Sale By Landlord And Tenant's Remedies 8
25. Right Of Landlord To Perform 8
26. Surrender Of Premises 8
27. Waiver 8
28. Notices 8
29. Rental Adjustments 9
30. Taxes Payable By Tenant 10
31. Successors And Assigns 10
32. Attorneys' Fees 10
33. Light And Air 10
34. Public Transportation Information 10
35. Miscellaneous 10
36. Lease Effective Date 10
Signatures 10
EXHIBIT "A" Rules and Regulations
EXHIBIT "B" Outline of Premises
EXHIBIT "C" Improvement Agreement
EXHIBIT "D" Form of Tenant Certificate
EXHIBIT "E" Property Description
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LEASE
THIS LEASE is made as of this 13th day of December 1995, between
SPIEKER PROPERTIES, L.P., a California Limited (hereinafter
called "Landlord")
Partnership
and VLSI LIBRARIES INCORPORATED, a California Corporation
(hereinafter called "Tenant").
PREMISES 1. Landlord leases to Tenant and Tenant leases from
Landlord those premises (hereinafter called "Premises)
outlined in red on Exhibit B attached hereto and made a part
hereof, specified in the Basic Lease Information attached
hereto (the "Building").
OCCUPANCY 2. Tenant shall use the Premises for the Permitted Use and
for no other use or purpose without the prior written
consent of Landlord, which shall not be unreasonably
withheld or delayed. No increase in occupant density of the
Leased Premises shall be made which shall add to the burden
of such use of the Building as determined by Landlord
without the prior written consent of Landlord.
POSSESSION 3. (a) The parties project that the term shall commence on the
Scheduled Term Commencement Date and, except as otherwise
provided herein or in any exhibit or addendum hereto, shall
continue in full force until the Term Expiration Date. If
the Premises are not delivered by Landlord by the Scheduled
Term Commencement Date for any reason, Landlord shall not be
liable to Tenant for any loss or damage resulting from such
delay. The Term Commencement Date shall be the first day of
the calendar month next following the earlier of (i) the day
when the Premises are substantially complete, or (ii) the
date on which Tenant takes possession of, or commences the
operation of its business in some or all of the Premises. If
substantial completion occurs prior to the Scheduled Term
Commencement Dates, Tenant shall take occupancy. Landlord
shall provide Tenant as much notice as circumstances allow
of the date when Landlord expects to achieve substantial
completion based upon the progress of work. Should the Term
Commencement Date be a date other than the Scheduled Term
Commencement Date, either Landlord or Tenant, at the request
of the other shall execute a declaration specifying the Term
Commencement Date and the rent commencement date which shall
be binding upon the parties as to the matters therein
stated. Tenant's obligation to pay Rent and its other
obligations for payment under this Lease shall commence upon
the earlier of (i) the day when the Premises are
substantially complete, or (ii) the date on which Tenant
takes possession of or commences the operation of its
business in some or all of the Premises.
Tenant agrees to accept the premises in "as is" condition
except for the improvements per Exhibit C.
RENT 4. Tenant shall pay to Landlord throughout the Term Rent
as specified in the Basic Lease Information, payable in
monthly installments in advance on the first day of each
calendar month
See Addendum 1. during every year of the Term in lawful money of the United
States, without deduction or offset whatsoever, to Landlord
at the address specified in the Basic Lease Information or
to such other firm or to such other place as Landlord may
from time to time designate in writing by notice given as
herein provided. Rent for the first month of the Term shall
be paid by Tenant upon execution
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of this Lease. If the obligation for payment of Rent
commences on other than the first day of a month as provided
in paragraph 3(a), then Rent provided for such partial month
shall be prorated and the prorated installment shall be paid
on the first day of the calendar month next succeeding the
Term Commencement Date. If the Term terminates on other than
the last day of a calendar month, then the Rent provided for
such partial month shall be prorated and the prorated
installment shall be paid on the first day of the calendar
month next preceding the date of termination.
RESTRICTIONS 5. Tenant shall not do or permit anything to be done in or
ON USE about the Premises which will in any way obstruct or
interfere with the rights of other tenants or occupants of
the Building or injure or annoy them, nor use or allow the
Premises to be used for any improper, immoral, unlawful or
objectionable purpose, nor shall Tenant cause or maintain or
permit any nuisance in, on or about the Premises. Tenant
shall not commit or suffer the commission of any waste in,
on or about the Premises.
COMPLIANCE 6. Tenant shall not use the Premises or permit anything
WITH LAWS to be done in or about the Premises which will in any way
conflict with any law, statute, ordinance or governmental
rule or regulation now in force or which may hereafter be
See Addendum 2. enacted or promulgated. Tenant shall not do or permit
anything to be done on or about the Premises or bring or
keep anything therein which will in any way increase the
rate of any insurance upon the Building or any of its
contents or cause a cancellation of said insurance or
otherwise affect said insurance in any manner, and Tenant
shall at its sole cost and expense promptly comply with all
laws, statutes, ordinances and governmental rules,
regulations or requirements now in force or which may
hereafter be in force and with the requirements of any board
of fire underwriters or other similar body now or hereafter
constituted relating to or affecting the condition, use or
occupancy of the Premises, excluding structural changes not
related to or affected by alterations or improvements made
by or for Tenant or Tenant's acts. The judgment of any court
of competent jurisdiction or the admission of Tenant in any
actions against Tenant, whether Landlord be a party thereto
or not, that Tenant has so violated any such law, statute,
ordinance, rule, regulation or requirement, shall be
conclusive of such violation as between Landlord and Tenant.
ALTERATIONS 7. Tenant shall not make or suffer to be made any
alterations, additions, or improvements in, on or to the
Premises or any part thereof without the prior written
consent of Landlord, which shall not be unreasonably
withheld or delayed; and any such alterations, additions or
improvements in, on or to said Premises, except for Tenant's
movable furniture and equipment, shall immediately become
Landlord's property and, at the end of the Term, shall
remain on the Premises without compensation to Tenant. In
the event Landlord consents to the making of any such
alterations, addition or improvement by Tenant, the same
shall be made by Tenant, at Tenant's sole cost and expense,
in accordance with plans and specifications approved by
Landlord, and any contractor or person selected by Tenant to
make the same must first be approved in writing by Landlord.
Notwithstanding the foregoing, at Landlord's option, all or
any portion of the alterations, addition or improvement work
shall be performed by Landlord for Tenant's account and
Tenant shall pay
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Landlord's estimate of the cost thereof (including a
reasonable charge for Landlord's overhead and profit) prior
to commencement of the work. Overhead and profit allowances
shall total fifteen percent (15%). Upon the expiration or
sooner termination of the Term, Tenant shall upon demand by
Landlord, at Tenant's sole cost and expense, with all due
diligence remove all those alterations, additions or
improvements made by or for the account of Tenant,
designated by Landlord to be removed, and Tenant shall with
all due diligence, at its sole cost and expense, repair and
restore the Premises to their original condition, normal
wear and tear excepted. At Landlord's election and
notwithstanding the foregoing, however, Tenant shall pay to
Landlord the cost of removing any such alterations,
additions or improvements and restoring the Premises to
their original condition, normal wear and tear excepted,
such cost to include a reasonable charge for Landlord's
overhead and profit as provided above, and such amount may
be deducted from the Security Deposit or any other sums or
amounts held by Landlord under this Lease.
REPAIRS 8. By taking possession of the Premises, Tenant accepts
the Premises as being in the condition in which Landlord is
obligated to deliver them and otherwise in good order,
condition and repair. At all times during the
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Term Tenant shall, at Tenant's sole cost and expense, keep
the Premises and every part thereof in good order, condition
and repair, excepting damage thereto by fire, earthquake,
act of God or the elements. Tenant waives all rights it may
have under Section 1942 of the Civil Code of the State of
California and any similar law, statute or ordinance now or
hereafter in effect (to the full extent that such waiver may
lawfully be given) authorizing or purporting to authorize
Tenant to make repairs to or for the account of Landlord.
Tenant shall upon the expiration or sooner termination of
the Term hereof, unless Landlord demands otherwise pursuant
to paragraph 7 hereof, surrender to Landlord the Premises
and all repairs, changes, alterations, additions and
improvements thereto in the same condition as when received
or when first installed, damage by fire, earthquake, act of
God or the elements excepted. Landlord has no obligation to
alter, remodel, improve, repair, decorate or paint the
Premises or any part thereof, except as specified in the
Office Lease Improvement Agreement and no representations
respecting the condition of the Premises or the Building
have been made by Landlord to Tenant, except as specifically
set forth herein or in the Office Lease improvement
Agreement.
LIENS 9. Tenant shall keep the Premises free from liens arising
out of or related to work performed, materials or supplies
furnished or obligations incurred by Tenant or in connection
with work made, suffered or done by Tenant in Premises or
Building. In the event that Tenant shall not, within ten
(10) days following the imposition of any such lien, cause
the same to be released of record by payment or posing of a
proper bond, Landlord shall have, in addition to all
remedies provided herein and by law, the right, but no
obligation to cause the same to be released by such means as
it shall deem proper, including payment of the claim giving
rise to such lien Landlord shall have the right at all times
to post and keep posted on the Premises any notices
permitted or required by law, or which Landlord shall deem
proper, for the protection of Landlord, the Premises, the
Building and any other party having an interest therein,
from mechanics and materialmen's liens, and Tenant shall
give Landlord not less than ten (10) business days prior
written notice of the commencement of any work in the
Building or Premises which could lawfully give rise to a
claim for mechanics or materialmen's lien.
ASSIGNMENT 10. Tenant shall not sell, assign, encumber or otherwise
AND transfer this Lease or any interest therein (by operation of
SUBLETTING law or otherwise), sublet the Premises or any part thereof
or suffer any other person to occupy or use the Premises or
any portion thereof, nor shall Tenant permit any lien to be
placed on Tenant's interest under this Lease by operation of
law except in accordance with the provisions of this
paragraph 10. For purposes hereof, sales, transfers or
assignments of (i) a controlling interest in the stock of
Tenant, if Tenant is a corporation, or of (ii) the general
partnership interests sufficient to control management
decisions if Tenant is a partnership or of (iii) the
majority or controlling underlying beneficial interest, if
Tenant is any other form of business entity, shall
constitute an assignment subject to the terms of this
paragraph 10.
(a) In the event that Tenant should desire to sublet the
Premises or any part thereof, Tenant shall provide Landlord
with written notice of such desire at least ninety (90) days
in advance of the
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date on which Tenant desires to make such sublease. Landlord
shall then have a period of thirty (30) days following
receipt of such notice within which to notify Tenant in
writing that Landlord elects either (i) to terminate this
Lease as to the space so affected as of the date so
specified by Tenant, in which event, Tenant shall be
relieved of all further obligations hereunder as to such
space from and after that date, or (ii) to permit Tenant to
sublet such space, subject however, to the prior written
approval of the proposed sublessee by Landlord which said
consent shall not be unreasonably withheld. If Landlord
should fail to notify Tenant in writing of its election
within said thirty (30) day period, Landlord shall be deemed
to have waived option (i) above, but written approval of the
proposed sublessee shall still be required. Refusal by
Landlord to approve a proposed sublessee shall not
constitute a termination of this Lease. In exercising its
right of consent to a sublessee it shall be reasonable for
Landlord to withhold consent to any sublessee who (aa) does
not agree to assume the obligations of the Lease with
respect to the space to be so sublet, (bb) does not agree to
utilize the space to sublet for the Permitted Use, (cc) is
of unsound financial condition as determined by Landlord or
(dd) will, in Landlord's opinion, increase the occupant
density in the Leased Premises. If Tenant proposes to
sublease less than all of the Premises, election by Landlord
of termination of this Lease with respect to space to be so
sublet shall leave this Lease in full force and effect with
respect to the remainder of the space, the Rent and Tenant's
Proportionate Share of Operating Expenses and taxes shall be
adjusted on a pro rata basis to reflect the reduction in Net
Rentable Area of the Premises as retained by Tenant. This
Lease as so amended shall continue thereafter in full force
and effect and references herein to the Premises shall mean
that portion thereof as to which the Lease has not been
terminated.
(b) Tenant shall not enter into any other transaction
subject to this paragraph 10 without Landlord's prior
written consent which said consent shall not be unreasonably
withheld. It shall be reasonable for Landlord to withhold
consent to any proposed transaction described in this
paragraph 10 on any of the grounds specified in paragraph 10
(a) with respect to sublessees or any other reasonable
grounds.
(c) Any rent or other consideration realized by Tenant
under any such sublease or assignment to which Landlord has
consented hereunder, in excess of the Rent payable
hereunder, after amortization of the reasonable cost of the
improvements over the remainder of the Term for which Tenant
has paid and reasonable subletting and assignment costs,
shall be divided and paid ninety percent (90%) to Landlord
and ten percent (10%) to Tenant.
(d) Any subletting hereunder by Tenant shall not result in
Tenant being released or discharged from any liability under
this lease. Any purported assignment, subletting or other
transaction to which paragraph 10 applies, which occurs
contrary to the provisions hereof, shall be void.
Landlord's consent to any assignment, subletting or other
transaction to which this paragraph 10 applies shall not
release Tenant from any of Tenant's obligations hereunder or
constitute a consent with respect to any subsequent
transaction to which this paragraph applies.
INSURANCE AND 11. (a) Landlord shall not be liable to Tenant and Tenant
hereby
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INDEMNIFICATION waives all claims against Landlord for any injury or damage
to any person or properly in or about the Premises by or
from any cause whatsoever, (other than Landlord's gross
negligence or willful misconduct) and, without limiting the
generality of the foregoing, whether caused by water leakage
or any character from the roof, walls, basement or other
portion of the Premises or the Building, or caused by gas,
fire, oil or electricity in, on or about the Premises or the
Building.
(b) Tenant shall hold Landlord harmless from and defend
Landlord against any and all claims or liability for any
injury or damage to any person or property whatsoever: (i)
occurring in, on or about the Premises or any part thereof,
or (ii) occurring in, on or about any facilities (including,
without prejudice to the generality of the term
"facilities", elevators, stairways, lobbies, health clubs,
passageways or hallways), the use of which Tenant may have
in conjunction with other tenants of the Building, when such
injury or damage shall be caused in part or whole by the
act, neglect, fault of or omission of any duty with respect
to the same by Tenant, its agents, servants, employees or
invitees. Tenant shall further indemnify and save Landlord
harmless against and from any and all claims by or on
behalf of any person, firm or corporation arising from the
conduct or management of any work or thing whatsoever done
by Tenant in or about or from transactions of Tenant
concerning the Premises, and will further indemnify and save
Landlord harmless against and from any and all claims
arising from any breach or default on the part of Tenant in
the performance of any covenant or agreement on the part of
Tenant to be performed pursuant to the terms of this Lease
or arising from any act or negligence of Tenant, or any of
its agents, contractors, servants, employees or licensees,
and from and against all costs, counsel fees, expenses and
liabilities incurred in connection with any such claim or
action or proceeding brought thereon. In case any action or
proceeding is brought against Landlord by reason of any
claims or liability within the limits of the foregoing
indemnity, Tenant shall defend such action or proceeding at
Tenant's sole expense by counsel reasonably satisfactory to
Landlord.
(c) Landlord shall hold Tenant harmless from and defend
Tenant against any and all claims or liability for any
injury or damage to any person or property occurring in or
about any facilities (including, without prejudice to the
generality of the term "facilities", elevators, stairways,
passageways or hallways), the use of which Tenant may have
in conjunction with other tenants of the building, when such
injury or damage shall be caused in whole or in part by the
act, neglect, fault of or omission of any duty with respect
to the same by Landlord, its
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agents, servants, employees or invitees. Landlord shall
further indemnify and safe Tenant harmless against and from
any and all claims by or on behalf of any person, firm or
corporation arising from the conduct or management of any
work or thing whatsoever done by Landlord in or about, or
from transactions of Landlord concerning the Premises where
such work is not being done for the account of Tenant, and
Landlord will further indemnify and safe Tenant harmless
against and from any and all claims arising from any breach
or default on the part of Landlord in the performance of any
covenant or agreement on the part of Landlord to be
performed pursuant to the terms of this Lease or arising
from any act or negligence of Landlord, or any of its
agents, contractors, servants, employees or licensees, and
from and against all costs, counsel fees, expenses and
liability incurred in connection with any such claim or
action or proceeding brought thereon. In case any action or
proceeding is brought against Tenant by reason of any claims
or liability within the limits of the foregoing indemnity,
Landlord shall defend such action or proceeding at
Landlord's sole expense by counsel reasonable satisfactory
to Tenant.
(d) The provisions of paragraph 11(b) and 11(c) shall
survive the expiration or termination of this Lease with
respect to any claims or liability occurring prior to such
expiration or termination.
(e) Tenant shall purchase at its own expense and keep in
force during the Term of this Lease a policy or policies of
workers' compensation and comprehensive liability insurance,
including personal injury and property damage, in the amount
of Five Hundred Thousand Dollars ($500,000.00) for property
damage and Two Million Dollars ($2,000,000.00) per
occurrence for personal injuries or deaths of persons
occurring in or about the Premises. The foregoing limits
shall be increased in proportion to increases during the
Term in the United States Department of Labor, Bureau of
Labor Statistics, Cost of Living Index. All Urban Consumers
(1967 = 100) for the region in which the Leased Premises are
located. Said policies shall; (i) name Landlord and any
party holding any interest to which this Lease may be
subordinated under paragraph 18 hereof, as additional
insureds, and insure Landlord's contingent liability under
this Lease; (ii) be issued by an insurance company
acceptable to Landlord and licensed to do business in the
State of California; and (iii) provide that said insurance
shall not be cancelled unless then (10) days prior written
notice shall have been given to Landlord. Said policy or
policies or certificates thereof shall be delivered to
Landlord by Tenant upon commencement of the term of this
Lease and upon each renewable of said insurance.
WAIVER OF 12. To the extent permitted by law and without affecting
SUBROGATION the coverage provided by insurance required to be maintained
hereunder, Landlord and Tenant each waive any right to
recover against the other (i) damages for injury to or death
of persons, (ii) damages to property, (iii) damage to the
Premises or any part thereof, (iv) damage to the Building or
any part thereof, or (v) claims arising by reason of the
foregoing, but only to the extent that any of the foregoing
damages and/or claims referred to above are covered (and
only to the extent of such coverage) by insurance actually
carried by either Landlord or Tenant. This provision is
intended to waive fully, and for the benefit of each party,
any rights and/or claims which might give rise to a right of
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subrogation on any insurance carrier. The coverage obtained
by each party pursuant to this Lease shall include, but
without limitation, a waiver of subrogation by the carrier
which conforms to the provisions of this paragraph.
SERVICES AND 13. (a) Landlord shall maintain the public and common
UTILITIES areas of the Building, including lobbies, stairs, elevators,
corridors and restrooms, and windows in the Building, the
mechanical, plumbing and electrical equipment serving the
Building, and the structure itself, in reasonably good order
and condition except for damage occasioned by the act of
Tenant, which damage shall be repaired by Landlord at
Tenant's expense.
(b) Provided Tenant shall not be in default hereunder, and
subject to the provisions elsewhere herein contained and to
the rules and regulations of the Building, Landlord shall
furnish to the Premises during ordinary business hours of
generally recognized business days, to be determined by
Landlord (but exclusive, in any event, of Saturdays, Sundays
and legal holidays), water and electricity suitable for the
Permitted Uses of the Premises, heat and air conditioning
required in Landlord's judgment for the comfortable use and
occupation of the Premises for the Permitted Uses,
janitorial services during the time and in the manner that
such services are, in Landlord's judgment, customarily
furnished in comparable office buildings in the immediate
market area, and elevator service which shall mean service
either by nonattended automatic elevators or elevators with
attendants, or both, at the option of Landlord. Landlord
shall have no obligation to provide additional or after-
hours heating or air conditioning, but if Landlord elects to
provide such services at Tenant's request, Tenant shall pay
to Landlord a reasonable charge for such services as
determined by Landlord. Tenant agrees to keep and cause to
be kept closed all window covering when necessary because of
the sun's position, and Tenant also agrees at all times to
cooperate fully with Landlord and to abide by all the
regulations and requirements which Landlord may prescribe
for the proper functioning and protection of heating,
ventilating and air conditioning systems. Wherever heat-
generating machines, excess lighting or equipment are used
in the Premises which affect the temperature otherwise
maintained by the air conditioning system, Landlord reserves
the right to install supplementary air conditioning units in
the Premises, and the cost thereof, including the cost of
installation and the cost of operation and maintenance
thereof, shall be paid by Tenant to Landlord upon demand by
Landlord.
(c) Tenant shall not without the written consent of
Landlord use any apparatus or device in the Premises,
including without limitation, electronic data processing
machines, punch card machines and machines using excess
lighting or using current in excess of that which is
determined by Landlord as reasonable and normal for the
Permitted Use or which will in any way increase the amount
of electricity or water usually furnished or supplied for
the Permitted Uses of the Premises; nor connect with
electric current, except through existing electrical outlets
in the Premises or what pipes, any apparatus or device for
the purposes of using electrical current or water. If
Tenant shall require water or electric current or any other
resource in excess of that usually furnished or supplied for
the Permitted Uses of the Premises, Tenant shall first
procure the consent of Landlord which
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Landlord may refuse, to the use thereof, and Landlord may
cause a special meter to be installed in the Premises so as
to measure the amount of water, electric current or other
resource consumed for any such other use. Tenant shall pay
directly to Landlord as an addition to and separate from
payment of Basic Operating Cost the cost of all such energy,
utility service and meters (and of installation maintenance
and repair thereof). Landlord may add to the metered charge
a recovery of additional expense incurred in keeping account
of the water, electric current or other resource so
consumed. Landlord shall not be liable for any damages
directly or indirectly resulting from, nor shall the Rent
herein reserved be abated by reason of (i) the installation,
use or interruption of use of any equipment in connection
with the furnishing of any of the foregoing utilities and
services, (ii) failure to furnish or delay in furnishing any
such utilities or services when such failure or delay is
caused by acts of God or the elements, labor disturbances of
any character, any other accidents or other conditions
beyond the reasonable control of Landlord, or by the making
of repairs or improvements to the Premises or to the
Building, or (iii) the limitation, curtailment, rationing or
restriction on use of water, electricity, gas or any other
form of energy or any other service or utility whatsoever
serving the Premises or the Building. Landlord shall be
entitled to cooperate voluntarily and in a reasonable manner
with the efforts of national, state or local governmental
agencies or utility supplies in reducing energy or other
resources consumption. The obligation to make services
available hereunder shall be subject to the limitations of
any such voluntary, reasonable program.
(d) Any sums payable under this paragraph 13 shall
constitute Additional Rent hereunder.
ESTOPPEL 14. Within ten (10) days following any written request
CERTIFICATE which Landlord may make from time to time, Tenant shall
execute and deliver to Landlord a certificate substantially
in the form attached hereto as Exhibit D and made a part
hereof, indicating thereon any exceptions thereto which may
exist at that time. Failure by Tenant to execute and deliver
such certificate shall constitute an acceptance of the
Premises and acknowledgment by Tenant that the statements
included in Exhibit D are true and correct without
exception. Landlord and Tenant intend that any statement
delivered pursuant to this paragraph may be relied upon by
any mortgagee, beneficiary, purchaser or prospective
purchaser of the Building or any interest therein, Landlord
shall have the right to substitute for the attached Exhibit
D a certificate in form required by Landlord's mortgagee or
provider financing.
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SECURITY 15. Concurrently with execution hereof. Tenant has paid to
DEPOSIT Landlord the Security Deposit in the amount stated on the
Basic Lease Information Sheet as security for the full and
faithful performance of Tenant's obligations under this
Lease Upon expiration of the Term or earlier termination
hereof, the Security Deposit shall be returned to Tenant.
reduced by such amounts as maybe required by Landlord to
remedy defaults on the part of Tenant in the payment of
Rent. to repair damages to the Premises caused by Tenant and
to clean the Premises. Landlord shall hold the Security
Deposit for the foregoing Purposes in accordance with the
provisions of all applicable law.
SUBSTITUTION 16. At any time after execution of this Lease, Landlord may
substitute for the Premises other Premises in the Building
(the "New Premises") upon not less than ninety (90) days
Prior written notice, in which event the new Premises shall
be deemed to be the Premises for all purposes hereunder:
Provided, however, that:
(a) The Net Rentable Area in the Premises is less than five
thousand (5,000) square feet;
(b) The New Premises shall be similar in area and in
appropriateness for Tenant's purposes;
(c) Any such substitution is effected for the purpose of
accommodating a tenant who will occupy all or a substantial
Portion of the Net Rentable Area of the floor on which the
Premises are located; and
(d) If Tenant is occupying the Premises at the time of such
substitution, Landlord shall pay the expense of moving
Tenant, its property and equipment to the New Premises and
shall, at its sole cost, improve the New Premises with
improvements substantially similar to those Landlord has
committed to provide or has provided in the Premises.
HOLDING OVER 17. If Tenant shall retain possession of the Premises or
any part thereof without Landlord's consent following the
expiration of the Term or sooner termination of this Lease
for any reason, then Tenant shall pay to Landlord for each
day of such retention 150% the amount of the daily rental
for the last period prior to the date of such expiration or
termination. Tenant shall also indemnity and hold Landlord
harmless from any loss or liability resulting from delay by
Tenant in surrendering the Premises, including, without
limitation, any claims made by any succeeding tenant founded
on such delay. Alternatively, if Landlord gives notice to
Tenant of Landlord's election thereof, such holding over
shall constitute renewal of this Lease for a Period from
month to month or for one year. whichever shall be specified
in such notice. Acceptance of Rent by Landlord following
expiration or termination shall not constitute a renewal of
this Lease. and nothing contained in this paragraph shall
waive Landlord's right of reentry or any other right. Unless
Landlord exercises the option hereby given to it. Tenant
shall be only a Tenant at sufferance, whether or not
Landlord accepts any Rent from Tenant while Tenant is
holding over without Landlord's written consent.
SUBORDINATION 18. Without the necessity of any additional document being
executed by Tenant for the purpose of effecting a
subordination. this Lease shall be subject and subordinate
at all times to: (a) all ground leases or underlying leases
which may now exist or hereafter be executed affecting the
Building or the land upon which the Building is situated or
both, and (b) the lien of any mortgage or deed of trust
which may now exist or hereafter be executed in any amount
for which said Building, land, ground leases or underlying
leases, or Landlord's interest or estate in any of said
items, is specified as security. Notwithstanding the
<PAGE>
foregoing, Landlord shall have the right to subordinate or
cause to be subordinated any such ground leases or
underlying leases or any such liens to this Lease. In the
event that any ground lease or underlying lease terminates
for any reason, or any mortgage or deed of trust is
foreclosed or a conveyance in lieu of foreclosure is made
for any reason, Tenant shall, notwithstanding any
subordination, attorn to and become the Tenant of the
successor in interest to Landlord at the option of such
successor in interest. Tenant shall execute and deliver,
upon demand by Landlord and in the form requested by
Landlord, any additional documents evidencing the priority
or subordination of this Lease with respect to any such
ground leases or underlying leases or the lien of any such
mortgage or deed of trust. Tenant hereby irrevocably
appoints Landlord as attorney-in-fact of Tenant to execute,
deliver and record any such documents in the name and on
behalf of Tenant. At the request of Landlord. Tenant shall
provide to Landlord its current financial statement or other
information disclosing financial worth which Landlord shall
use solely for purposes of this Lease and in connection with
the ownership. management and disposition of the property
subject hereto.
RULES AND 19. Tenant shall faithfully observe and comply with the
REGULATION rules and regulations printed on or annexed to this Lease
and all reasonable modifications thereof and additions
thereto from time to time put into effect by Landlord.
Landlord shall not be responsible to Tenant for the non-
compliance by any other tenant or occupant of the Building
with any of the rules and regulations.
RE-ENTRY 20. Landlord reserves and shall at all limes have
BY LANDLORD the right to reenter the Premises to inspect the same to
supply janitor service and any other service to be provided
by Landlord to Tenant hereunder, to show the Premises to
prospective purchasers, mortgagees or tenants. to post
notices of nonresponsibility and to alter improve or repair
the Premises and any portion of the Building, without
abatement of Rent. and may for that purpose erect, use and
maintain scaffolding, pipes, conduits and other necessary
structures in and through the Premises where reasonably
required by the character of the work to be performed;
provided that entrance to the Premises shall not be blocked
thereby, and further provided that the business of Tenant
shall not be interfered with unreasonably. Tenant waives any
claim for damages for any injury or inconveniences to or
interference with Tenant's business, any loss of occupancy
or quiet enjoyment of the Premises, and any other loss
occasioned thereby. Landlord shall at all times have and
retain a key with which to unlock all of the doors in, upon
and about the Premises, excluding Tenant's vaults and safes
or special security areas (designated in advance), and
Landlord shall have the right to use any and all means which
Landlord may deem necessary or proper to open said doors in
an emergency, in order to obtain entry to any portion of the
Premises, and any entry to the Premises or portions thereof
obtained by Landlord by any of said means, or otherwise,
shall not be construed to be a forcible or unlawful entry
into, or a detainer of, the Premises, or an eviction, actual
or constructive, of Tenant from the Premises or any portions
thereof. Landlord shall also have the right at any time,
without the same constituting an actual or constructive
eviction and without incurring any liability to Tenant
therefore, to change the arrangement and/or location of
entrances or passageways, doors and doorways, and corridors,
elevators, stairs, toilets or other
<PAGE>
public parts of the Building and to change the name, number
or designation by which the Building is commonly known.
DEFAULT 21. (a) EVENTS OF DEFAULT: The occurrence of any of the
BY TENANT following shall constitute an event to default on the
part of Tenant:
(1) ABANDONMENT. Vacation or abandonment of the Premises
for a continuous period in excess of five (5) business
days. Tenant waives any right to notice Tenant may
have under Section 1951.3 of the Civil Code of the
State of California. the terms of this subsection (a)
being deemed such notice to Tenant as required by said
Section 1951.3;
(2) NONPAYMENT OF RENT. Failure to pay any installment of
Rent due and payable hereunder (or failure to pay any
other amount required to be paid hereunder, all such
obligations to be construed as the equivalent of
obligations for payment of Rent) upon the date when
said payment is due, such failure continuing without
cure by payment of the delinquent Rent and late charge
for a period of five (5) business days after written
notice and demand; provided, however, that except as
expressly otherwise Provided herein, Landlord shall
not be required to provide such notice more than twice
during the Term, the third such non-payment
constituting default for all purposes hereof without
requirement of notice. For purposes of subparagraph
21(e), such failure shall constitute a default without
requirement of notice. The due dates for payment of
installments of rent provided for herein shall be
absolute and the existence of a cure period or notice
period shall not be deemed to extend said date for
purposes of determining Tenant's compliance with its
obligations hereunder.
(3) OTHER OBLIGATIONS. Failure to perform any obligations.
agreement or covenant under this Lease other than those
matters specified in subparagraphs (1) and (2) of this
subparagraph (a), such failure continuing for fifteen
(15) business days after written notice of such failure
(or such longer period as Landlord determines to be
necessary to remedy such default, provided that Tenant
shall continuously and diligently pursue such remedy at
all times until such default is cured);
(4) GENERAL ASSIGNMENT. A general assignment by Tenant for
the Benefit of creditors:
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<PAGE>
(5) BANKRUPTCY. The filing of any voluntary petition in
bankruptcy by Tenant or the filing of an involuntary
petition by Tenant's creditors, which involuntary
petition remains undischarged for a period of thirty
(30) days. In the event that under applicable law the
trustee in bankruptcy or Tenant has the right to affirm
this Lease and continue to perform the obligations of
Tenant hereunder, such trustee or Tenant shall, in such
time periods as may be permitted by the bankruptcy
court having jurisdiction, cure all defaults of Tenant
hereunder outstanding as of the date of the affirmance
of this Lease and provide to Landlord such adequate
assurances as may be necessary to ensure Landlord of
the continued performance of Tenant's obligations under
this Lease.
(6) RECEIVERSHIP. The employment of a receiver to take
possession of substantially all of Tenant's assets or
the Premises, if such receivership remains undissolved
for a period of ten (10) business days after creation
thereof.
(7) ATTACHMENT. The attachment, execution or other
judicial seizure of all or substantially all of
Tenant's assets or the Premises, if such attachment or
other seizure remains undismissed or undischarged for a
period of ten (10) business days after the levy
thereof.
(8) INSOLVENCY. The admission by Tenant in writing of its
inability to pay its debts as they become due, the
filing by Tenant of a petition seeking any
reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under any
present or future statute, law or regulation, the
filing by Tenant of an answer admitting or failing
timely to contest a material allegation of a petition
filed against Tenant in any such proceeding or, if
within thirty (30) days after the commencement of any
proceeding against Tenant seeking any reorganization or
arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any present or
future statute, law or regulation, such proceeding
shall not have been dismissed.
(b) REMEDIES UPON DEFAULT.
(1) RENT. All failures to pay any monetary obligation to
be paid by Tenant under this Lease shall be construed
as obligations for payment of Rent.
(2) TERMINATION. In the event of the occurrence of any
event of default, Landlord shall have the right, with
or without notice or demand, immediately to terminate
this Lease, and at any time thereafter recover
possession of the Premises or any part thereof and
expel and remove therefrom Tenant and any other person
occupying the same, by any lawful means, and again
repossess and enjoy the Premises without prejudice to
any of the remedies that Landlord may have under this
Lease, or at law or equity by reason of Tenant's
default or of such termination.
(3) CONTINUATION AFTER DEFAULT. Even though Tenant has
breached this Lease and/or abandoned the Premises this
Lease shall
<PAGE>
continued in effect for so long as Landlord does not
terminate Tenant's right to possession under paragraph
21 (b)(2) hereof, and Landlord may enforce all its
rights and remedies under this Lease, including (but
without limitation) the right to recover Rent as it
becomes due and Landlord, without terminating this
Lease, may exercise all of the rights and remedies of a
landlord under Section 1951.4 of the Civil Code of the
State of California or any successor code section. Acts
of maintenance preservation or efforts to lease the
Premises or the appointment of receiver upon
application of Landlord to protect Landlord's interests
under this Lease shall not constitute an election to
terminate Tenant's right to possession.
(c) DAMAGES UPON TERMINATION. Should Landlord terminate
this Lease pursuant to the provisions of paragraph 21(b)(2)
hereof, Landlord shall have all the rights and remedies of a
landlord provided by Section 1951.2 of the Civil Code of the
State of California, or successor code section. Upon such
termination, in addition to any other rights and remedies to
which Landlord may be entitled under applicable law,
Landlord shall be entitled to recover from Tenant; (i) the
worth at the time of award of the unpaid Rent and other
amounts which had been earned at the time of termination;
(ii) the worth at the time of award of the amount by which
the unpaid Rent which would have been earned after
termination under the time of award exceeds the amount of
such Rent loss that the Tenant proves could have been
reasonable avoided; (iii) 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 Rent
loss that the Tenant proves could be reasonably avoided; and
(iv) any other amount necessary to compensate Landlord for
all the detriment proximately caused by Tenant's failure to
perform its obligations under this Lease or which, in the
ordinary course of things, would be likely to result
therefrom. The "worth at the time of award" of the amounts
referred to in (i) and (ii) shall be computed with interest
at the lesser of eighteen percent (18%) per annum or the
maximum rate allowed by law. The "worth at the time of
award" of the amount referred to in (iii) shall be computed
by reference to competent appraisal evidence or the formula
prescribed by and using the lowest discount rate permitted
under applicable law.
(d) COMPUTATION OF RENT FOR PURPOSES OF DEFAULT.
For purposes of computing unpaid Rent which would have
accrued and become payable under this Lease pursuant to the
provisions of paragraph 21(c) unpaid Rent shall consist of
the sum of:
(1) the total Basic Rent for the balance of the Term then
remaining (with the amount of Basic Rent to be determined by
reference to fair rental value being the subject of proof by
competent evidence), plus
(2) a computation of the excess of Gross Rent (the term
"Gross Rent" meaning the sum of (i) rental adjustments
payable pursuant to paragraph 29 and (ii) Basic Rent) over
Basic Rent for the balance of the Term then remaining
("Excess Gross Rental"), the assumed excess Gross Rental for
the calendar year of the default and each future calendar
year in the Term to be equal to the Excess Gross Rental for
the calendar year prior to the year in which default occurs
compounded at a per annum rate equal to the mean average
rate of inflation for the preceding five (5) calendar
<PAGE>
years as determined by the United States Department of
Labor, Bureau of Labor Statistics Consumer Price Index (All
Urban Consumers) for the Metropolitan Area or Region which
San Francisco, California is a part.
(e) LATE CHARGE. In addition to its other remedies,
Landlord shall have the right without notice or demand to
add to the amount of any payment required to be made by
Tenant hereunder, and which is not paid on or before the
date the same is due, an amount equal to five percent (5%)
of the delinquency for each month or portion thereof that
the delinquency remains outstanding to compensate Landlord
for the loss of the use of the amount not paid and the
administrative costs caused by the delinquency, the parties
agreeing that the amount not paid and the administrative
costs caused by the delinquency, the parties agreeing that
Landlord's damage by virtue of such delinquencies would be
difficult to compute and the amount stated herein represents
a reasonable estimate thereof.
(f) REMEDIES CUMULATIVE. All rights, privileges and
elections or remedies of the parties are cumulative not
alternative to the extent permitted by law and except as
otherwise provided herein.
DAMAGE BY 22. If the Premises or the Building are damaged by fire or
FIRE, ETC. other casualty, Landlord shall forthwith repair the same,
provided such repairs can be made within one hundred eighty
(180) days from the date of such damage under the laws and
regulations of the federal, state and local governmental
authorities having jurisdiction thereof. In such event, this
Lease shall remain in full force and effect except that
Tenant shall be entitled to a proportionate reduction of
Rent while such repairs to be made hereunder by Landlord are
being made. Said proportionate reduction shall be based upon
the extent to which the making of such repairs to be made
hereunder by Landlord shall interfere with the business
carried on by Tenant in the Premises. Within twenty (20)
days from the date of such damage, Landlord shall notify
Tenant whether or not such repairs can be made within one
hundred eighty (180) days from the date of such damage and
Landlord's determination thereof shall be binding on Tenant.
If such repairs cannot be made within one hundred eighty
(180) days from the date of such damage, Landlord shall have
the option within thirty (30) days of the date of such
damage either to: (a) notify Tenant of Landlord's intention
to repair such damage and diligently prosecute such repairs,
in which event this Lease shall continue in full force and
effect and the Rent shall be reduced as provided herein; or
(b) notify Tenant of Landlord's election to terminate this
Lease as of a date specified in such notice, which date
shall be not less than thirty (30) nor more than sixty (60)
days after notice is given. In the event such notice to
terminate is given by Landlord, this Lease shall terminate
on the date specified in
<PAGE>
such notice. In either event, the Rent shall be reduced by
a proportionate amount based upon the extent to which said
damage interfered with the business carried on by Tenant in
the Premises, and the Tenant shall pay such reduced Rent up
to the date of termination. Landlord agrees to refund to
Tenant any Rent previously paid for any period of time
subsequent to such date of termination. The repairs to be
made hereunder by Landlord shall not include, and Landlord
shall not be required to repair, any damage by fire or other
cause to the property of Tenant or any repairs or
replacements of any paneling, decorations, railings, floor
coverings or any alterations, additions, fixtures or
improvements installed on the premises by or at the expense
of Tenant. The provisions of Section 1942, subdivision 2,
and Section 1933, subdivision 4, of the Civil Code of
California are superseded by the foregoing.
EMINENT 23. If any part of the Premises shall be taken or
DOMAIN appropriated under the power of eminent domain or conveyed
in lieu thereof, which materially effects Tenant's occupancy
of the Premises, either party shall have the right to
terminate this Lease at its option. If any part of the
Building shall be taken or appropriated under power of
eminent domain or conveyed in lieu thereof, Landlord may
terminate this Lease at its option. In either of such
events, Landlord shall receive subject to the rights of
Landlord's first mortgagee (and Tenant shall assign to
Landlord upon demand from Landlord) any income, rent, award
or any interest therein which may be paid in connection with
the exercise of such power of eminent domain, and Tenant
shall have no claim against Landlord for any part of the
sums paid by virtue of such proceedings, whether or not
attributable to the value of the unexpired Term. If a part
of the Premises shall be so taken or appropriated or
conveyed and neither party hereto shall elect to terminate
this Lease and the Premises have been damaged as a
consequence of such partial taking or appropriation or
conveyance. Landlord shall restore and Premises continuing
under this Lease at Landlord's cost and expense, provided,
however, that Landlord shall not be required to repair or
restore any injury or damage to the property of Tenant or to
make any repairs or restoration of any alterations,
additions, fixtures or improvements installed on the
Premises by or at the expense of Tenant. Thereafter, the
Rent for the remainder of the Term shall be proportionately
reduced, such reduction to be based upon the extent to which
the partial taking or appropriation or conveyance shall
interfere with the business carried on by Tenant in the
Premises. Notwithstanding anything to the contrary contained
in this paragraph, if the temporary use or occupancy of any
part of the Premises shall be taken or appropriated under
power of eminent domain during the Term, this Lease shall be
and remain unaffected by such taking or appropriation and
Tenant shall continue to pay in full all Rent payable
hereunder by Tenant during the Term, in the event of any
such temporary appropriation or taking. Tenant shall be
entitled to receive that portion of any award which
represents compensation for the use of or occupancy of the
Premises during the Term, and Landlord shall be entitled to
receive that portion of any award which represents the cost
of restoration of the Premises and the use and occupancy of
the Premises.
SALE BY 24. In the event of a sale or conveyance by Landlord of the
LANDLORD Building, the same shall operate to release Landlord from
AND TENANT'S any future liability upon any of the convenants or
conditions, express
<PAGE>
REMEDIES or implied, herein contained in favor of Tenant, and in such
event Tenant agrees to look solely to the responsibility of
the successor in interest of Landlord in and to this Lease.
This Lease shall not be affected by any such sale and Tenant
agrees to attorn to the purchaser or assignee. Tenant shall
look solely to Landlord's interest in the Building for
recovery of any judgment from Landlord. Landlord, or if
Landlord is a partnership, its partners whether general or
limited, or if Landlord is a corporation, its directors,
officers or shareholders, shall never be personally liable
for any such judgment.
RIGHT OF 25. All convenants and agreements to be performed by
LANDLORD Tenant under any of the terms of this Lease shall be
TO PERFORM performed by Tenant at Tenant's sole cost and expense and
without any abatement of Rent. If Tenant shall fail to pay
any sum of money, other than Rent, required to be paid by it
hereunder or shall fail to perform any other act on its part
to be performed hereunder, and such failure shall continue
for ten (10) days after notice thereof by Landlord, Landlord
may, but shall not be obligated to do so, and without
waiving or releasing Tenant from any obligations of the
Tenant, make any such payment or perform any such act on the
Tenant's part to be made or performed. All sums so paid by
Landlord and all necessary incidental costs together with
interest thereon at the rate of eighteen percent (18%) per
annum or the maximum rate permitted by law, whichever is
less per annum from the date of such payment by the Landlord
shall be payable as Additional Rent to Landlord on demand,
and Tenant covenants to pay such sums, and Landlord shall
have, in addition to any other right or remedy of Landlord,
the same right and remedies in the event of the nonpayment
thereof by Tenant as in the case of default by Tenant in the
payment of the Rent.
SURRENDER 26. (a) Tenant shall at least ninety (90) days before the
OF PREMISES last day of the Term, give to Landlord a written notice
intention to surrender the Premises on that date, but
nothing contained herein shall be construed as an extension
of the Term or as consent of Landlord to any holding over by
Tenant.
(b) At the end of the term or any renewal thereof or other
sooner termination of this Lease, Tenant shall peaceably
deliver up to Landlord possession of the Premises, together
with all improvements, fixtures or additions thereto by
whomsoever made, in the same condition as received, or first
installed, damage by fire, earthquake, act of God, normal
wear and tear or the elements alone excepted. Tenant may,
upon the termination of this Lease, remove all movable
furniture and equipment belonging to Tenant, at Tenant's
sole cost, title to which shall be in Tenant until such
termination, repairing any damage caused by such removal.
Property not so removed shall be deemed abandoned by the
Tenant, and title to the same shall thereupon pass to
Landlord.
(c) The voluntary or other surrender of this Lease by
Tenant, or a mutual cancellation thereof, shall not work a
merger and shall, at the option of Landlord, terminate all
or any existing subleases or subtenancies or may, at the
option of Landlord, operate as an assignment to it of any or
all such subleases or subtenancies.
WAIVER 27. If either Landlord or Tenant waives the performance of
any term, convenant or condition contained in this Lease,
such waiver shall not be deemed to be a waiver of any
subsequent breach of the
<PAGE>
same or any other term covenant or condition contained
herein. The acceptance of Rent by Landlord shall not
constitute a waiver of any preceding breach by Tenant of any
term, covenant or condition of this Lease, regardless of
Landlord's knowledge of such preceding breach at the time
Landlord accepted such rent. Failure by Landlord to enforce
any of the terms, covenants or conditions of this Lease for
any length of time shall not be deemed to waive or to
decrease the right of Landlord to insist thereafter upon
strict performance by Tenant. Waiver by Landlord of any
term, covenant or condition contained in this lease may only
be made by a written document signed by Landlord.
NOTICES 28. All notices and demands which may or are required to be
given by either party to the other hereunder shall be in
writing. All notices and demands by Landlord to Tenant
shall be sent by United States certified or registered mail,
postage prepaid, addressed to Tenant at the Premises, or to
such other place as Tenant may from time to time designate
in the notice to Landlord. All notices and demands by
Tenant to Landlord shall be sent by United States certified
or registered mail, postage prepaid, addressed to Landlord
at the address specified in the Basic Lease Information, or
to such other firm or to such other place as Landlord may
from time to time designate in a notice to Tenant.
RENTAL 29. In addition to Basic Rent provided to be paid
ADJUSTMENT hereunder, Tenant shall pay as Rent Tenant's Proportionate
Share of Basic Operating Cost in the manner set forth below.
(a) DEFINITION: For purposes hereof, the terms used in
this paragraph 29 shall have the following meanings:
(1) "Basic Operating Cost" shall mean all expenses and
costs of every kind and nature which Landlord shall pay to
become obligated to pay because of or in connection with the
ownership and operation of the Building and supporting
facilities of the Building, and such additional facilities
now and in subsequent years as may be determined by Landlord
to be necessary to the Building, including, but not limited
to the following:
(i) Wages, salaries and related expenses and benefits of
all on-site and off-site employees engaged directly in the
operation, management, maintenance, engineering and security
of the Building, and the costs of an office in the Building,
provided, however, that Basic Operating Cost shall not
include leasing commissions paid to any real estate broker,
salesperson or agent.
(ii) Supplies, materials and rental of equipment used in
the operation, management and maintenance of the Building.
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<PAGE>
(iii) Utilities. including water and power, heating,
lighting, air conditioning and ventilating of the Building.
(iv) All maintenance, janitorial and service agreements
for the Building and the equipment therein. including,
without limitation, alarm services. window cleaning and
elevator maintenance.
(v) A management cost recovery determined by Landlord
equal to three percent (3%) of Gross Rent derived from the
Building.
(vi) Legal expenses and the cost of audits by certified
public accountants; Provided, however, that legal expenses
chargeable as Basic Operating Cost shall not include the
cost of negotiating leases, collecting rents, evicting
tenants nor shall it include costs incurred in legal
proceedings with or against any tenant or to enforce the
provisions of any lease.
(vii) All insurance premiums and costs, including but not
limited to, the premiums and cost of fire, casualty and
liability coverage and rental abatement and earthquake
insurance (if Landlord elects to provide such coverage)
applicable to the Building and Landlord's personal properly
used in connection therewith.
(viii) Repairs, replacements and general maintenance
(excluding repairs and general maintenance Paid by proceeds
of insurance or by Tenant or other third parties, and
alterations attributable solely to tenants of the Building
other than Tenant).
(ix) All maintenance costs relating to public and service
areas of the Building. including (but without limitation,
sidewalks, landscaping, service areas, mechanical rooms and
Building exteriors.
(x) All taxes, service payments in lieu of taxes, annual
or periodic license or use fees, fees, real estate taxes,
impositions or charges imposed upon or levied in connection
with use of the Building to raise funds for public transit,
housing or other environmental, sociological or fiscal
effects of the Building or land use, assessments whether
general or special, ordinary and extraordinary, unforeseen
as well as foreseen, of any kind which are assessed, levied,
charged, confirmed or imposed by any public authority upon
the Building, the land upon which it is located, Building
operations or Rent payable under this Lease (or any portion
or component thereof), excepting only inheritance or estate
taxes imposed upon or assessed against the interest of any
person in the Building or any part thereof or interest
therein, and taxes computed upon the basis of the net income
of the owners of the Building or any part thereof or
interest therein.
(xi) Amortization (together with reasonable financing
charges) of capital improvement made to the Building
subsequent to the Term Commencement Date which will improve
the operating efficiency of the Building or which may be
required to comply with laws. ordinances, rules or
regulations promulgated. adopted or enforces after
completion of the initial construction of the Building and
improvements of the Premises pursuant to the Office Lease
Improvement Agreement.
Notwithstanding anything to the contrary herein
contained, Basic Operating Cost shall not include (aa) the
initial
<PAGE>
construction cost of the Building; (bb) depreciation on the
initial construction of the Building: (cc) the cost of
providing Tenant Improvements to tenant or any other tenant:
(dd) debt service (including, but without limitation,
interest, principal and any impound payments) required to be
made on any mortgage or deed of trust recorded with respect
to the Building and/or the real properly on which the
Building is located other than debt service and financing
Charges imposed pursuant to Paragraph 29(a)(l)(xi) above;
and (ee) the cost of special services, goods or materials
provided to any tenant. In the event that the Building is
not fully occupied during any fiscal year of the Term as
determined by Landlord, an adjustment Shall be made in
computing the Basic Operating Cost for such year so that
Basic Operating Cost Shall be computed as though the
Building had been one hundred Percent (100%) occupied;
provided, however, that in no event shall Landlord be
entitled to collect in excess of one hundred percent (100%)
of the total Basic Operating Cost from all of the tenants in
the Building including Tenant. All costs and expenses shall
be determined in accordance with generally accepted
accounting principles which shall be consistently applied
(with accruals appropriate to Landlord's business). Basic
Operating Cost shall not include specific costs incurred for
the account of, separately billed to and Paid by specific
tenants.
(2) "Estimated Basic Operating Cost" for any particular year
shall mean Landlord's estimate of the Basic Operating Cost
for such fiscal year made prior to commencement of such
fiscal year as hereinafter provided. Landlord shall have
the right from time to time to revise its fiscal year and
interim accounting periods so long as the periods as so
revised are reconciled with prior periods in accordance with
generally accepted accounting principles applied in a
consistent manner.
(3) "Basic Operating Cost Adjustment" shall mean the
difference between Basic Operating Cost and Estimated Basic
Operating Cost for any fiscal year determined as hereinafter
provided.
(b) PAYMENT OF ESTIMATED BASIC OPERATING COST.
During Dec. of each fiscal year during the Term, or as
soon thereafter as practicable, Landlord shall give Tenant
written notice of the Estimated Basic Operating Cost for the
ensuing fiscal year. The Estimated Basic Operating Cost for
the fiscal year in which the Scheduled Term Commencement
Date falls is set forth in the Basic Lease Information
Sheet. Tenant shall pay Tenant's Proportionate Share of the
Estimated Basic Operating Costs with installments of Basic
Rent required to be paid pursuant to paragraph 3 above for
the fiscal year to which the estimate applies in monthly
installments on the first day of each calendar month during
such year, in advance. Such payment shall be construed to be
Rent for all purposes hereof. If at any time during the
course of a fiscal year, Landlord determines that Basic
Operating Cost will apparently vary from the then Estimated
Basic Operating Cost by more than five percent (5%),
Landlord may, by written notice to Tenant, revise the
Estimated Basic Operating Cost for the balance of such
fiscal year and Tenant shall pay Tenant's Proportionate
Share of the Estimated Basic Operating Cost as so revised
for the balance of the then current fiscal year on the first
day of each calendar month thereafter,
<PAGE>
such revised installment amounts to be Rent for all purposes
hereof.
(c) COMPUTATION OF BASIC OPERATING COST ADJUSTMENT.
Within one hundred twenty (120) days after the end of
each fiscal year as determined by Landlord or as soon
thereafter as practicable, Landlord shall deliver to Tenant
a statement of Basic Operating Cost for the fiscal year just
ended, accompanied by a computation of Basic Operating Cost
Adjustment. If such statement shows that Tenant's Payment
based upon Estimated Basic Operating Cost is less than
Tenant's Proportionate Share of Basic Operating Cost, then
Tenant shall pay the difference within twenty (20) days
after receipt of such statement. such payment to constitute
additional rent hereunder. If such statement shows that
Tenant's payments of Estimated Basic Operating Cost exceed
Tenant's Proportionate Share of Basic Operating Costs, then
(provided that Tenant is not in default under this Lease),
Tenant shall receive a credit for the amount of such payment
against Tenant's obligation for payment of Tenant's
Proportionate Share of Estimated Basic Operating Cost next
becoming due hereunder. If this Lease has been terminated or
the Term hereof has expired prior to the date of such
statement, then the Basic Operating Cost Adjustment shall be
paid by the appropriate party within twenty (20) days after
the date of delivery of the statement.
(d) NET LEASE. This shall be a net lease and Base Rent
shall be paid to Landlord absolutely net of all costs and
expenses. The provisions for payment of Basic Operating Cost
by means of periodic payments of Tenant's Proportionate
Share of Estimated Basic Operating Cost and the Basic
Operating Cost Adjustment are intended to Pass on to Tenant
and reimburse Landlord for all cost and expenses of the
nature described in paragraph 29(a)(1) above incurred in
connection with ownership and operation of the Building and
such additional facilities now and in subsequent years as
may be determined by Landlord to be necessary to the
Building.
(e) TENANT AUDIT. Tenant shall have the right at Tenant's
expense and upon not less than forty-eight (48)hours prior
written notice to Landlord, to review at reasonable times
Landlord's books and records for any fiscal year a portion
of which falls within the Term for purposes of verifying
Landlord's calculation of Basic Operating Cost and Basic
Operating Cost Adjustment. In the event that Tenant shall
dispute the amount set
- 9 -
<PAGE>
forth in any statement provided by Landlord under paragraph
29(c) above. Tenant shall have the right not later than
twenty (20) days following the receipt of such statement,
and upon condition that Tenant shall first deposit with
Landlord the full amount in dispute, to cause Landlord's
books and records with respect to such fiscal year to be
audited by certified public accountants selected by Tenant
subject to Landlord's reasonable right of approval. The
Basic Operating Cost Adjustment shall be appropriately
adjusted on the basis of such audit. If such audit discloses
a liability for a refund or credit by Landlord to Tenant in
excess of ten percent (10%) of Tenants Proportionate Share
of the Basic Operating Cost Adjustment previously reported.
the cost of such audit shall be borne by Landlord. Otherwise
the cost of such audit shall be paid by Tenant. If Tenant
shall not request an audit in accordance with the provisions
of this paragraph 29(e) within twenty (20) days of receipt
of Landlord's statement provided pursuant to paragraph
29(d). such statement shall be final and binding for all
purposes hereof.
TAXES 30. (a) Tenant shall pay before delinquency any and all taxes
PAYABLE levied or assessed and which become payable by Landlord (or
BY TENANT Tenant) during the Term of this Lease, whether or not now
customary or within the contemplation of the parties hereto,
which are based upon, measured by or otherwise calculated
with respect to: (a) the value of Tenant's equipment,
furniture, fixtures or other personal property located in
the Premises; (b) the value of any leasehold improvements,
alterations, or additions made in or to the Premises,
regardless of whether title to such improvements.
alterations or additions shall be in Tenant of Landlord: or
(c) this transaction or any document to which Tenant is a
party creating or transferring an interest or an estate in
the Premises.
(b) In the event that it shall not be lawful for Tenant so
to reimburse Landlord, the Rent shall be revised to net
Landlord the same net rent after imposition of any such tax
upon Landlord as would have been payable to Landlord prior
to the imposition of any such tax. All taxes payable by
Tenant under this Paragraph 30 shall be additional rental.
SUCCESSORS
AND ASSIGNS 31. Subject to the provisions of paragraph 10 hereof, the
terms, covenants and conditions contained herein shall be
binding upon and inure to the benefit of the heirs,
successors, executors, administrators and assigns of the
parties hereto.
ATTORNEYS'
FEES 32. In the event that any action or proceeding is brought
to enforce any term, covenant or condition of this Lease on
the part of Landlord or Tenant, the prevailing party in such
litigation shall be entitled to reasonable attorneys' fees
to be fixed by the court in such action or proceeding.
LIGHT
AND AIR 33. No diminution of light, air or view by any structure
which may hereafter be erected (whether or not by Landlord
shall entitle Tenant to any reduction of Rent, result in any
liability of Landlord to Tenant, or in any other way affect
this Lease or Tenant's obligations hereunder.
PUBLIC
TRANS-
PORTATION 34. Tenant shall establish and maintain during the Term
INFORMATION hereof a program to encourage maximum use of public
transaporation by personnel or Tenant employed on the
Premises, including without limitation the
<PAGE>
distribution to such employees of written materials
explaining the convenience and availability of public
transportation facilities adjacent or proximate to the
Building, staggering working hours of employees, and
encouraging use of such facilities, all at Tenant's sole
reasonable cost and expense.
MISCELLANE-
OUS 35. (a) The term "Premises" shall be deemed to include (except
where such meaning would be clearly repugnant to the
context) the offices space demised and improvements now or
at any time hereinafter comprising or built in the space
hereby demised.
(b) The paragraph headings herein are for convenience of
reference and shall in no way define, increase, limit or
describe the scope or intent of any provision of this Lease.
(c) The term "Landlord" in these presents shall include the
Landlord, its successors and assigns. In any case where this
Lease is signed by more than one person the obligations
hereunder shall be joint and several.
(d) The term "Tenant" or any pronoun used in place thereof
shall indicate and include the masculine or feminine, the
singular or plural number, individuals, firms or
corporations, and their and each of their respective
successors, executors, administrators and permitted assigns,
according to the context hereof.
(e) Time is of the essence of this Lease and all of its
provisions.
(f) This Lease Shall in all respects be governed by the
laws of the State of California.
(g) This Lease, together with its exhibits, contains all
the agreements of the parties hereto and supersedes any
previous negotiations.
(h) There have been no representations made by the Landlord
or understandings made between the parties other than those
set forth in this Lease and its exhibits.
(i) This Lease may not be modified except by a written
instrument by the parties hereto.
(j) If for any reason whatsoever any of the provisions
hereof shall be unenforceable or ineffective all of the
other provisions Shall be and remain in full force and
effect.
(k) See Addenda 1 & 2 and Additional Paragraphs 37-41
attached hereto and made a part hereof
LEASE 36. Submission of this instrument for examination or
EFFECTIVE signature by Tenant does not constitute a reservation or
DATE option for lease, and it is not effective as a lease or
otherwise until execution and delivery by both Land-lord and
Tenant.
IN WITNESS WHEREOF, the parties hereto have executed
this Lease the day and year first above written.
"LANDLORD"
Spieker Properties, L.P.
a California Limited Partnership
<PAGE>
By: Spieker Properties, Inc., a Maryland
Corporation
Its: General Partner
Date 12/18/95 By /s/ John A. Foster
John A. Foster
Its Senior Vice President
"TENANT"
VLSI LIBRARIES INCORPORATED, a California
Corporation
Date 12-15-95 By /s/ Mark Templeton
Mark Templeton
Its President
- 10 -
<PAGE>
ADDENDA ATTACHED TO AND MADE A PART OF THAT LEASE AGREEMENT BETWEEN SPIEKER
PROPERTIES, L.P., A CALIFORNIA LIMITED PARTNERSHIP, AS LANDLORD, AND VLSI
LIBRARIES INCORPORATED, A CALIFORNIA CORPORATION, AS TENANT, DATED DECEMBER 13,
1995 FOR PREMISES LOCATED AT 2077 GATEWAY PLACE, SAN JOSE, CALIFORNIA.
ADDENDUM 1 - PARAGRAPH 4 - RENT. Rent for the premises shall be as follows
-------------------------------
Year 1: $24,020.00 per month plus operating expenses per Paragraph 29 of
this Lease Agreement. Operating expenses through December 1996
are estimated to be $8,734.00 per month. Direct operating
expenses are estimated a year in advance and collected on a
monthly basis. Any increases or decreases necessary will be made
at the end of the operating year.
Year 2: $25,363.00 per month plus operating expenses per Paragraph 29 of
this Lease Agreement.
Year 3: $26,707.00 per month plus operating expenses per Paragraph 29 of
this Lease Agreement.
Year 4: $28,051.00 per month plus operating expenses per Paragraph 29 of
this Lease Agreement.
Year 5: $29,563.00 per month plus operating expenses per Paragraph 29 of
this Lease Agreement.
ADDENDUM 2 - PARAGRAPH 6 - COMPLIANCE WITH LAWS. Tenant shall have the sole
-----------------------------------------------
responsibility for complying, at Tenant's cost, with provisions of the Americans
with Disabilities Act of 1990 (ADA), as it may later be amended, with respect to
the Premises and to the common areas of the Project, where such compliance has
been brought about: (I) by any alterations to the Premises or to the common
areas by the Tenant or on behalf of the Tenant at Tenant's written request (by
Landlord or otherwise) performed after the Term Commencement Date, (ii) by any
changes to Tenant's use of the Premises; or (iii) by any architectural barriers
caused by Tenant's installation of any equipment, furniture, or other personal
property on the Premises (items (I), (ii), (iii) collectively, "Tenant's ADA
Responsibilities"). Tenant shall indemnify, defend and hold Landlord, its
agents and employees harmless from and against any and all claims, damages and
liabilities arising directly or indirectly from Tenant's failure to satisfy any
of Tenant's ADA Responsibilities. Landlord shall indemnify, defend and hold
Tenant, its agents and employees harmless from and against any and all claims,
damages or liabilities arising directly or indirectly from Landlord's failure to
comply with any obligations of a Landlord under the ADA, other than such claims,
damages or liabilities arising from Tenant's failure to satisfy any of Tenant's
ADA Responsibilities.
<PAGE>
ADDITIONAL PARAGRAPHS ATTACHED TO AND MADE A PART OF THAT LEASE AGREEMENT
BETWEEN SPIEKER PROPERTIES, L.P., A CALIFORNIA LIMITED PARTNERSHIP AS LANDLORD,
AND VLSI LIBRARIES INCORPORATED, A CALIFORNIA CORPORATION, AS TENANT, DATED
DECEMBER 13, 1995 FOR PREMISES LOCATED AT 2077 GATEWAY PLACE, SAN JOSE,
CALIFORNIA.
PARAGRAPH 37 - OPTION TO RE-LEASE PREMISES. Provided Tenant is not, and has not
------------------------------------------
been, in default of its obligations under this Lease, Tenant shall have one (1)
option to release the Premises in "as-is" condition for a term of five (5) years
at the then current market rent for comparable space in Gateway Office Park. In
no event will the monthly rental be less than the rental for the last month of
the previous term.
Tenant shall give Landlord written notice of its intent to exercise its option
at least one-hundred-eight (180) days prior to the expiration of the current
lease term. Within fifteen (15) days after Tenant exercises its option to
release, Landlord will provide Tenant with the fair market rental for comparable
buildings in the San Jose Airport market, as well as terms and conditions for
the extended term. Tenant shall have forty-five (45) days from notification by
Landlord of current rent and terms and conditions. If Tenant does not accept
Landlord's rental figure and terms and conditions within the forty-five (45) day
period, this option shall be null and void and Landlord shall have no further
obligation to Tenant and Landlord may enter into a lease for the Premises with a
third party.
Notwithstanding anything to the contrary herein contained, Tenant's right to
extend the term by exercise of the foregoing option shall be conditioned upon
the following: (i) at the time of the exercise of the option, and at the time of
the commencement of the extended term, Tenant shall be in possession of and
occupying the Premises for the conduct of its business therein and the same
shall not be occupied by any assignee, subtenant or licensee, the option to
extend being applicable hereunder only with respect to so much of the Premises
as is actually occupied by Tenant; and (ii) the notice of exercise shall
constitute a representation by Tenant to Landlord effective as of the date of
the lease term, that Tenant does not intend to seek to assign the Lease in whole
or in part, or sublet all or any portion of the Premises, the election to extend
the term being for purposes of utilizing the Premises for Tenant's purposes in
the conduct of Tenant's business therein.
PARAGRAPH 38 - TENANT PARKING. Tenant shall have the nonexclusive use of on-
-----------------------------
site parking at a ratio of not more than 4 cars per 1,000 square feet of
rentable area. Landlord shall also provide parking spaces in close proximity to
the building for visitors and handicapped persons.
PARAGRAPH 39 - EXTERIOR SIGNAGE. Landlord agrees, at Landlord's expense, to
-------------------------------
provide Tenant with building standard exterior monument signage at Building
2077, to be shared with others. Exact location/placement of said monument shall
be determined by Landlord. The cost of appropriate lettering for the monument,
to be approved by Landlord, shall be paid for by Tenant.
PARAGRAPH 40 - LANDLORD INDEMNITY REGARDING HAZARDOUS SUBSTANCES. Landlord
----------------------------------------------------------------
shall indemnify, defend and hold harmless Tenant, its officers, employees,
shareholders, parent, subsidiary and affiliate organizations and agents to the
extent of Landlord's interest in the Project, against any and all claims, suits,
loss, costs (including costs of investigation, clean up, monitoring, restoration
and reasonable attorney fees), damage or liability, whether foreseeable or
unforeseeable, by reason of property damage, personal injury or death directly
arising from or related to: the presence of Hazardous Substances (as defined
below) in, on or about the Premises immediately prior to Tenant's first
occupancy unless caused by Tenant, its employees, invitees, subtenants, agents,
assigns, licensees or servants, or; the subsequent release, disposal, use or
storage of Hazardous
<PAGE>
Substances in, on or about the Premises by Landlord, its employees, invitees,
agents, assigns, licensees or servants.
For the purposes of this Indemnity, Hazardous Substances are defined,
collectively, as oil, flammable explosives, asbestos, radioactive materials,
hazardous wastes, toxic or contaminated substances or similar materials,
including, without limitation, any substances which are "hazardous substances,"
"hazardous wastes," "hazardous materials" or toxic substances" under applicable
environmental laws, ordinances or regulation.
The provisions of this Landlord Indemnity regarding Hazardous Substances shall
survive the termination of this Lease.
PARAGRAPH 41 - TENANT INDEMNITY REGARDING HAZARDOUS SUBSTANCES. Tenant shall
--------------------------------------------------------------
indemnify, defend and hold harmless Landlord, its employees, partners,
subtenants, agents, assigns, licensees, servants, subsidiaries and affiliate
organizations against any and all claims, suits, loss, costs (including costs of
investigation, clean up, monitoring, restoration and reasonable attorney fees),
damage or liability, whether foreseeable or unforeseeable, by reason of property
damage (including diminution in the value of the property of Landlord), personal
injury or death directly arising from or related to Hazardous Substance (as
defined below) released, manufactured, discharged, disposed, used or stored by
Tenant, its employees, invitees, subtenants, agents, assignees, licensees or
servants.
For the purpose of this Indemnity, Hazardous Substances are defined,
collectively, as oil, flammable explosives, asbestos, radioactive materials,
hazardous wastes, toxic or contaminated substances or similar materials,
including, without limitation, any substances which are "hazardous substances,"
"hazardous wastes," "hazardous materials" or "toxic substances" under applicable
environmental laws, ordinances or regulation.
The provisions of this Tenant Indemnity regarding Hazardous Substances shall
survive the termination of the Lease.
<PAGE>
Rules and Regulations
EXHIBIT A.
1. Sidewalks, halls, passages, exits, entrances, elevators,
escalators and stairways shall not be obstructed by Tenants
or used by them for any purpose other than for ingress to
and egress from their respective premises. The halls,
passages, exits, entrances, elevators and stairways are not
for the use of the general public and Landlord shall in all
cases retain the right to control and prevent access thereto
by all persons whose presence, in the judgment of Landlord,
shall be prejudicial to the safety, character, reputation
and interests of the Building and its Tenants, provided that
nothing herein contained shall be construed to prevent such
access to persons with whom any Tenant normally deals in the
ordinary course of such Tenant's business unless such
persons are engaged in illegal activities. No Tenant, and
no employees or invitees of any Tenant, shall go upon the
roof of the Building, except as authorized by Landlord.
2. No sign, placard, picture, name, advertisement or notice,
visible from the exterior of leased premises shall be
inscribed, painted, affixed, installed or otherwise
displayed by any Tenant either on its premises or any part
of the Building without the prior written consent of
Landlord, and Landlord shall have the right to remove any
such sign, placard, picture, name, advertisement, or notice
without notice to and at the expense of the Tenant.
If Landlord shall have given such consent to any Tenant at
any time, whether before or after the execution of the
lease, such consent shall in no way operate as a waiver or
release of any of the provisions hereof or of such lease,
and shall be deemed to relate only to the particular sign,
placard, picture, name, advertisement or notice so consented
to by Landlord and shall not be construed as dispensing with
the necessity of obtaining the specific written consent of
Landlord with respect to any other such sign, placard,
picture, name, advertisement or notice.
All approved signs or lettering on doors and walls shall be
printed, painted, affixed or inscribed at the expense of the
Tenant by a person approved by Landlord.
3. The bulletin board or directory of the Building will be
provided exclusively for the display of the name and
location of Tenants only the Landlord reserves the right to
exclude any other names therefrom.
4. No curtains, draperies, blinds, shutters, shades, screens or
other coverings, awnings, hangings or decorations shall be
attached to, hung or placed in, or used in connection with,
any window or door or any premises without the prior written
consent of Landlord. In any event with the prior written
consent of Landlord, all such items shall be installed
inboard of Landlord's standard window covering and shall in
no way be visible from the exterior of the Building. No
articles shall be placed or kept on the window sills so as
to be visible from the exterior of the Building. No
articles shall be placed against glass partitions or doors
which might appear unsightly from outside Tenant's Premises.
5. Landlord reserves the right to exclude from the Building
between the hours of 6 pm and 8 am and at all hours on
Saturdays, Sundays
<PAGE>
and holidays all persons who are not Tenants or their
accompanied guests in the Building. Each Tenant shall be
responsible for all persons for whom it allows to enter the
building and shall be liable to Landlord for all acts of
such persons.
Landlord shall in no case be liable for damages for error
with regard to the admission to or exclusion from the
Building of any person.
During the continuance of any invasion, mob, riot, public
excitement or other circumstance rendering such action
advisable in Landlord's opinion, Landlord's reserves the
right to prevent access to the Building by closing the
doors, or otherwise, for the safety of Tenants and
protection of the Building and Property in the Building.
6. No Tenant shall employ any person or persons other than the
janitor of Landlord for the purpose of cleaning premises
unless otherwise agreed to by Landlord in writing. Except
with the written consent of Landlord no person or persons
other than those approved by Landlord shall be permitted to
enter the Building for the purpose of cleaning the same. No
Tenant shall cause any unnecessary labor by reason of such
Tenant's carelessness or indifference in the preservation of
good order and cleanliness of the premises. Landlord shall
in no way be responsible to any Tenant for any loss of
property on the premises, however occurring, or for any
damage done to the effects of any Tenant by the janitor or
any other employee or any other person.
7. No Tenant shall obtain for use upon its premises ice,
drinking water, food, beverage, towel or other similar
services except through facilities provided by Landlord (and
maintained by tenant) and under regulations fixed by
Landlord, or accept barbering or boot blacking services on
premises except from persons authorized by Landlord.
8. Each Tenant shall see that all doors of its premises are
closed and securely locked and must observe strict care and
caution that all water, faucets or water apparatus are
entirely shut off before the Tenant or its employees leave
such premises, and that all utilities shall likewise be
carefully shut off, so as to prevent waste or damage, and
for any default or carelessness the Tenant shall make good
all injuries sustained by other Tenants or occupants of the
Building or Landlord. On multiple-tenancy floors, all
Tenants shall keep the door or doors to the Building
corridors closed at all times except for ingress or egress.
9. As more specifically provided in the Tenant's Lease of the
Premises, Tenant shall not waste electricity, water or air-
conditioning and agrees to cooperate fully with Landlord to
assure the most effective operation of the Building's
heating and air-conditioning, and shall refrain from
attempting to adjust any controls other than room
thermostats installed for Tenant's use.
10. No Tenant shall alter any lock or access device or install a
new additional lock or access device or any bolt on any door
of its
<PAGE>
premises without the prior written consent of Landlord. If
Landlord shall give its consent the Tenant shall in each
case furnish Landlord with a key for any such lock.
11. No Tenant shall make or have made additional copies of any
keys or access devices provided by Landlord. Each Tenant,
upon the termination of the Tenancy, shall deliver to
Landlord all the keys or access devices for the Building,
offices, rooms and toilet rooms which shall have been
furnished the Tenant or which the Tenant shall have had
made. In the event of the loss of any keys or access
devices so furnished by Landlord, Tenant shall pay Landlord
therefor.
12. The toilet rooms, urinals, wash bowls and other apparatus
shall not be used for any purpose other than that for which
they were constructed and no foreign substance of any kind
whatsoever shall be thrown therein, and the expense of any
breakage, stoppage or damage resulting from the violation of
this rule shall be borne by the Tenant who, or whose
employees or invitees, shall have caused it.
13. No Tenant shall use or keep in its premises or the Building
any kerosene, gasoline or inflammable or combustible fluid
or material other than limited quantities necessary for the
operation or maintenance of office or office equipment. No
Tenant shall use any method of heating or air-conditioning
other than that supplied by Landlord.
14. No Tenant shall use, keep or permit to be used or kept in
its premises any foul or noxious gas or substances or permit
or suffer such premises to be occupied or used in a manner
offensive or objectionable to Landlord or other occupants of
the Building by reason of noise, odors and/or vibrations or
interfere in any way with other Tenants or those having
business therein, nor shall any animals or birds be brought
or kept in or about any premises of the Building.
15. No cooking shall be done or permitted by any Tenant on its
premises (except that use by the Tenant of Underwriters'
Laboratory approved equipment for the preparation of coffee,
tea, hot chocolate and similar beverages for Tenants and
their employees shall be permitted, provided that such
equipment and use is in accordance with all applicable
federal, state and city laws, codes, ordinances, rules and
regulations), nor shall premises be used for lodging.
EXHIBIT "A" Page 1
<PAGE>
16. Except with the prior written consent of Landlord, no Tenant
shall sell, or permit the sale, at retail, of newspapers.
magazines. periodicals. theatre tickets or any other goods
or merchandise in or on any premises, nor shall Tenant carry
on, or permit or allow any employee or other Person to carry
on, the Business of stenography, typewriting or any similar
business in or from any premises for the service or
accommodation of occupants of any other portion of the
Building. nor shall the Premises of any Tenant be used for
the storage of merchandise or for manufacturing of any kind,
or the business of a public barber shop, beauty parlor. nor
shall the premises of any Tenant be used for any improper,
immoral or objectionable purpose, or any business or
activity other than that specifically provided for in such
Tenant's lease.
17. If Tenant requires telegraphic, telephonic, burglar alarm or
similar services, it shall first obtain, and comply with,
Landlord's instructions in their installation.
18. Landlord will direct electricians as to where and how
telephone, telegraph and electrical wires are to be
introduced or installed. No boring or cutting for wires
will be allowed without the prior written consent of
Landlord. The location of burglar alarms, telephones, call
boxes and other office equipment affixed to all premises
shall be subject to the written approval of Landlord.
19. No Tenant shall install any radio or television antenna,
loudspeaker or any other device on the exterior wails or the
roof of the Building. Tenant shall not interfere with radio
or television broadcasting or reception from or in [he
Building or elsewhere.
20. No Tenant shall lay linoleum, tile, carpet or any other
floor covering so that the same shall be affixed to the
floor of its premises in any manner except as approved in
writing by Landlord The expense of repairing any damage
resulting from a violation of this rule or the removal of
any floor covering shall be borne by the Tenant by whom, or
by whose contractors, employees or invitees, the damage
shall have been caused.
21. No furniture, freight, equipment, materials, supplies,
packages, merchandise or other property will be received in
the Building or carried up or down the elevators except
between such hours and in such elevators as shall be
designated by Landlord.
Landlord shall have the right to prescribe the weight, size
and position of all safes, furniture or other heavy
equipment brought into the Building. Safes or other heavy
objects shall, if considered necessary by Landlord, stand on
wood strips of such thickness as determined by Landlord to
be necessary to properly distribute the weight thereof
Landlord will not be responsible for loss of or damage to
any such safe, equipment or property from any cause, and all
damage done to the Building by moving or maintaining any
such safe, equipment or other property shall be repaired at
the expense of Tenant
Business machines and mechanical equipment belonging to
Tenant which cause noise or vibration that may be
transmitted to the structure of the Building or to any space
therein to such a degree as to be objectionable to Landlord
or to any tenants in the
<PAGE>
Building shall be placed and maintained by Tenant, at
Tenant's expense, on vibration eliminators or other devices
sufficient to eliminate noise or vibration. The persons
employed to move such equipment in or out of the Building
must be acceptable to Landlord.
22. No Tenant shall place a load upon any floor of the premises
which exceeds the load per square foot which such floor was
designed to carry and which is allowed by law. No Tenant
shall mark or drive nails, screw or drill into the
partitions, woodwork or plaster or in any way deface such
Premises or any part thereof.
23. No Tenant shall install, maintain or operate upon the
Premises any vending Machine without the written consent of
Landlord.
24. There shall not be used in any space, or in the public areas
of the Building, either by any Tenant or others, any hand
trucks except those equipped with rubber tires and side
guards or such other material-handling equipment as Landlord
may approve. No other vehicles of any kind shall be brought
by any Tenant into or kept in or about the premises.
25. Each Tenant shall store all of its trash and garbage within
the interior of its premises. No material shall be placed
in the trash boxes or receptacles if such material is of
such nature that it may not be disposed of in the ordinary
and customary manner of removing and disposing of trash and
garbage in the city without violation of any law or
ordinance governing such disposal. All trash, garbage and
refuse disposal shall be made only through entryways and
elevators provided for such purposes and at such times as
Landlord shall designate.
26. Canvassing, soliciting, distribution of handbills or any
other written material, and peddling in the Building are
Prohibited and each Tenant shall cooperate to Prevent the
same. No Tenant shall make room-to-room solicitation of
business from other tenants in the building.
27. Landlord shall have the right, exercisable without notice
and without liability to any Tenant, to change the name and
address of the Building.
28. Landlord reserves the right to exclude or expel from the
Building any person who, in Landlord's judgment is
intoxicated or under the influence of liquor or drugs or who
is in violation of any of the rules and regulations of the
Building.
29. Without the prior written consent of Landlord, Tenant shall
not use the name of the Building in connection with or in
Promoting or advertising the business of Tenant except as
Tenant's address.
30. Tenant shall comply with all safety, fire protection and
evacuation procedures and regulations established by
Landlord or any governmental agency.
31. Tenant assumes any and all responsibility for protecting its
Premises from theft, robbery and pilferage, which includes
keeping doors locked and other means of entry to the
Premises closed.
<PAGE>
32. The requirements of Tenants will be attended to only upon
application at the office of the Building by an authorized
individual. Employees of Landlord shall not perform any
work or do anything outside of their regular duties unless
under special instructions from Landlord. and no employees
will admit any person (Tenant or otherwise) to any office
without specific instructions from Landlord.
33. Landlord may waive any one or more of these Rules and
Regulations for the benefit of any particular Tenant or
Tenants, but no such waiver by Landlord shall be construed
as a waiver of such Rules and Regulations in favor of any
other Tenant or Tenants, nor prevent Landlord from
thereafter enforcing any such Rules and Regulations against
any or all Tenants of the Building.
34. Landlord reserves the right to make such other and
reasonable rules and regulations as in its judgment may from
time to time be needed for safety and security, for care and
cleanliness of the Building and for the Preservation of good
order therein. Tenant agrees to abide by all such Rules and
Regulations hereinabove stated and any additional rules and
regulations which are adopted,
35. Landlord reserves the right to designate the use of the
Parking spaces on the Premises.
36. Tenant shall use carpet protectors under all desk chairs.
37. Tenant agrees to keep balcony doors closed at all times,
except during ingress and egress.
38. Tenant or Tenant's guests shall park between designated
parking lines only, and shall not occupy two parking spaces
with one car. Vehicles in violation of the above shall be
subject to tow-away. at vehicle owners expense.
39. Vehicles parked on premises overnight without prior written
consent of the Landlord shall be deemed abandoned and shall
be subject to tow-away at vehicle owner's expense.
40. Tenant shall be responsible for the observance of all of the
foregoing Rules and Regulations by Tenant's employees,
agents, clients, customers, invitees and guests.
41. The Rules and Regulations are in addition to. and shall not
be construed to in any way modify. alter or amend, in whole
or in part, the terms, covenants, agreements and conditions
of any Lease of Premises in the Building. The word
"Building" as used herein means the building of which the
premises are part.
Page 2
<PAGE>
[EXHIBIT B IMAGE OMITTED]
<PAGE>
INTERIOR IMPROVEMENTS
---------------------
Landlord shall furnish and install at its own expense the interior improvements
in accordance with Malesardi Design Group's Space Plan dated 12/13/95 and
further described per this Exhibit C. Any alterations or modifications to the
improvements must be approved in writing by Landlord. Any increase in cost
(including the cost of design) as a result of such alterations or modifications
shall be acknowledged by Tenant in writing and paid to Landlord prior to
occupancy of the Premises. Any delays in construction caused by Tenant's changes
which extend the completion of the improvements shall be acknowledged by Tenant
and, notwithstanding the provisions of paragraph 3, shall accelerate the payment
of rent by the number of days delay.
The tenant improvements installed by Landlord shall include the following:
* Install building standard carpet over pad throughout, exact colors to be
determined and agreed upon by Landlord and Tenant.
* Building standard latex paint throughout, exact colors to be determined and
agreed upon by Landlord and Tenant.
* Remodel HVAC zones, fire sprinklers and flourescent light mixtures at all
new construction areas as determined by Landlord.
* One each electrical duplex, phone and data outlet in each of the new
offices.
* Electrical, phone and data outlets adequate for operation of Tenant's
cubicles.
* Tenant to provide and install, at Tenant's expense, the following:
* All teflon-coated computer cable to computer outlets and telephone outlets
and other areas required by Tenant.
EXHIBIT C
---------
<PAGE>
[EXHIBIT C IMAGE OMITTED]
<PAGE>
Form of Tenant Certificate
EXHIBIT D.
____________________________________
____________________________________
____________________________________
____________________________________
RE:
Gentlemen:
The undersigned, as Tenant under that certain lease (the
"Lease") dated ____________________ 19 ______, made with
_________________ as Landlord (the "Landlord"), does hereby
certify:
1. That the copy of the Lease attached hereto as Exhibit A is
a true and complete copy of the Lease, and there are no
amendments, modifications or extensions of or to the Lease
and the Lease is now in full force and effect.
2. That its leased premises at the above location have been
completed in accordance with the terms of the Lease, that
it has accepted possession of said premises, and that it
now occupies the same.
3. That it began paying rent on ___________________ 19 ______,
and that, save only as may be required by the terms of the
Lease, no rental has been paid in advance, nor has the
undersigned deposited any sums with the Landlord as
security.
4. That there exist no defenses or offsets to enforcement of
the Lease by the Landlord and, so far as is known to the
undersigned, the Landlord is not, as of the date hereof, in
default in the performance of the Lease, nor has the
Landlord committed any breach thereof, nor has any event
occurred which, with the passage of time or the giving of
notice, or both, would constitute a default or breach by
the Landlord.
The undersigned acknowledges that you are relying on the
above representation of the undersigned in (advancing funds
to purchase the existing first mortgage loan covering the
building in which the leased premises are located) (in
purchasing the building in which the leased premises are
located) and does hereby warrant and affirm to and for your
benefit, and that of your successors and assigns, that each
of the foregoing representations is true, correct and
complete as of the date hereof.
Dated:________________________
By______________________
<PAGE>
Its___________________________
EXHIBIT "D"
<PAGE>
PROPERTY DESCRIPTION
--------------------
All that certain real property situate in the City of San Jose,
County of Santa Clara, State of California, described as follows:
ALL OF PARCELS A and B, as shown upon that certain Parcel Map
entitled " Being all of Parcel 3 as shown on the Parcel Map
recorded in Book 451 of Maps at Pages 17 and 18 and lying within
the City of San Jose, California", which Map was filed for record
in the Office of the Recorder of the County of Santa Clara, State
of California on December 2, 1982 in Map Book 506 at Pages 45 and
46, Santa Clara County Records.
EXHIBIT E