California-Santa Clara-2805 Bowers Avenue Lease - National Semiconductor Corp. and McAfee Associates Inc.
SUBLEASE
by and between
NATIONAL SEMICONDUCTOR CORPORATION
("Sublessor")
and
MCAFEE ASSOCIATES, INC.
("Sublessee")
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SUBLEASE
1. Parties. This Sublease ("Sublease") is entered into as of the
20th day of February, 1997, by and between NATIONAL SEMICONDUCTOR CORPORATION,
a Delaware corporation ("Sublessor") and MCAFEE ASSOCIATES, INC., a Delaware
corporation ("Sublessee") as a sublease under that certain Lease dated October
6, 1995 ("Lease") by and between WTA-Bowers LLC, a California limited liability
company, as lessor ("Lessor"), and Sublessor, as lessee. A copy of the Lease is
attached hereto as Exhibit "A" and made a part hereof. All capitalized terms
used in this Sublease but not defined herein shall have the meanings set forth
in the Lease.
2. Subordination; Defaults; Provisions Constituting Sublease.
2.1 Subordination; Condition Precedent; Default Under
Lease. This Sublease is subject and subordinate in all respects to the Lease,
and to the matters to which the Lease is subject and subordinate, and to any
amendments to the Lease or supplemental agreements thereunder made between
Sublessor and Lessor. The effectiveness of this Sublease is conditioned upon
the Lessor's written consent hereto in form and substance acceptable to
Sublessor; provided, however, that if Sublessee enters or occupies the Premises
for any purpose prior to the effectiveness of this Sublease (whether to inspect
the Premises or otherwise), such entry and occupancy shall be subject to the
following sentence and to Section 15 of this Sublease which shall constitute a
separate agreement between Sublessor and Sublessee. Sublessee covenants and
agrees to refrain from doing or causing to be done, or permitting any thing or
act to be done, which would constitute a default under the Lease or might cause
the Lease or the rights of Sublessor as lessee under the Lease to be terminated
or surrendered, or which would or might make Sublessor liable for any damages,
claims or penalties. Notwithstanding anything in this Sublease to the contrary,
Sublessee agrees that Sublessor shall have no liability of any nature
whatsoever to Sublessee as a consequence of Lessor's failure or delay in
performing its obligations under the Lease. Sublessee's obligations hereunder
(including without limitation the obligation of Sublessee to pay rent) shall
not be impaired nor shall the performance thereof be excused because of any
failure or delay on Lessor's part in performing its obligations under the Lease
unless (i) such failure or delay results from Sublessor's being in default
under the Lease and Sublessor's default thereunder is not due to a default of
Sublessee hereunder, or (ii) such failure or delay results from Sublessor's
willful misconduct. Under no circumstances shall Sublessee have the right to
require performance by Sublessor of Lessor's obligations under the Lease. In
the event of the termination of Sublessor's interest as lessee under the Lease
for any reason (including, without limitation, Sublessor's election to
terminate the Lease as a result of a default by Lessor or pursuant to a right
to terminate under the Lease), then this Sublease shall terminate concurrently
therewith, and unless the termination of Sublessor's interest under the Lease
results from a default by Sublessor under the Lease that was not caused by
Sublessee, Sublessor shall have no liability to Sublessee as a result of such
termination of this Sublease.
2.2 Provisions of Lease Constituting Sublease. Paragraphs
10 (Reimbursable Expenses and Utilities), 12 (Alterations and Additions), 14
(Default), 17 (Free from Liens), 18
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(Compliance with Laws), 22 (Parking Charges) and 23 (Insolvency or Bankruptcy)
of the Lease are hereby incorporated herein as part of the terms and conditions
of this Sublease (with each reference therein to "Lessor" and "Lessee" to be
deemed to refer to Sublessor and Sublessee, respectively, and each reference to
the "Lease" to be deemed to refer to this Sublease). Notwithstanding the
foregoing: (i) in no event shall Sublessor be under any obligation to make
improvements under Section 18 of the Lease as incorporated into this Sublease,
but Sublessee shall be responsible for its proportional share of the cost of
the improvements made by Lessor thereunder, as described therein; and (ii) all
notices to be given to or posted for the benefit of Sublessor by Sublessee
under Section 17 of the Lease as incorporated into this Sublease shall also be
addressed and given to Lessor and posted for the benefit of Lessor, as
applicable.
3. Premises.
3.1 Subleased Premises. Sublessor hereby leases to
Sublessee, and Sublessee hereby leases from Sublessor, the Premises (as such
term is defined in the Lease), subject to all of the terms and conditions set
forth in this Sublease. The Premises are sometimes referred to hereinafter as
the "Subleased Premises". Sublessor is hereby giving to Sublessee the right to
possess and occupy the Subleased Premises during the term of this Sublease,
subject to the terms and conditions of this Sublease (including, without
limitation, Section 2.2 and Section 21 of this Sublease). Sublessor shall
perform all obligations of Sublessor as tenant under the Lease except to the
extent such obligations are to be performed by Sublessee pursuant to the terms
of this Sublease.
3.2 Condition of Premises. Sublessee hereby accepts, and
on the Commencement Date (defined in Paragraph 4.1 below), Sublessee shall be
deemed to have accepted, the Subleased Premises and appurtenances thereto: (i)
in their current "As Is" condition, and as being in good and sanitary order,
condition and repair, except that Sublessor shall reasonable clean the
Subleased Premises prior to delivering the Subleased Premises to Sublessee;
(ii) without representation or warranty, except as may be expressly set forth
in this Sublease, and (iii) subject to the Lease, all applicable laws, and all
covenants, conditions, restrictions, easements and other matters of public
record. Without limiting the foregoing, Sublessee hereby expressly acknowledges
that neither Sublessor nor Sublessor's agents have any representation or
warranty as to the suitability of the Subleased Premises for the conduct of
Sublessee's business, the condition of the Subleased Premises, or the use or
occupancy which may be made, and that Sublessee had independently investigated
the Subleased Premises and is satisfied that the Subleased Premises are
suitable for Sublessee's intended use and that the Subleased Premises meet all
governmental requirements for such intended use. The foregoing shall not limit
Sublessee's rights under applicable law against Lessor and Sublessor for those
environmental matters described in Paragraph 6 of the Lease.
4. Term.
4.1 Sublease Term: Extension Terms. The term of this
Sublease ("Sublease Term") shall commence on March 15, 1997 ("Commencement
Date") and shall expire on April 30, 2001, unless extended as hereinafter set
forth. Provided Sublessee is not in default under this
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Sublease as of the date Sublessee exercises its applicable Extension Option
(hereinafter defined), Sublessee is not in default under this Sublease as of the
date Sublessor intends to exercise its corresponding extension option under
Section 4 of the Lease and Sublessee exercises its applicable Extension Option
in strict accordance with the terms set forth below, Sublessee shall have
options ("Extension Options") to extend the term of this Sublease for two (2)
one (1)-year periods (each, an "Extension Term") upon all of the terms of this
Sublease except that Sublessee shall not be entitled to any additional Extension
Options and the monthly rental rate shall be the applicable rate set forth in
Section 5.1 below. In order to effectively exercise an Extension Option,
Sublessee must give Sublessor written notice of its exercise of the applicable
Extension Option at least nine (9) months prior to the end of the then-current
Sublease term, and provided Sublessee is not in default under this Sublease as
of the date Sublessee gives such a notice and Sublessee is not in default under
this Sublease as of the date Sublessor intends to exercise its corresponding
extension option under Section 4 of the Lease, Sublessor shall exercise its
corresponding extension option under Section 4 of the Lease. Notwithstanding
anything to the contrary herein, if Sublessor's exercise of its corresponding
extension option under the Lease is not effective for any reason, then
Sublessee's exercise of its Extension Option shall be of no force or effect. In
no event may Sublessee exercise its second Extension Option unless Sublessee
shall have effectively exercised its first Extension Option.
4.2 Holding Over. If Sublessee remains in possession of the
Premises after the expiration of the Sublease Term with the express, written
consent of Sublessor (which may be withheld or conditioned in the sole and
absolute discretion of Sublessor), such tenancy shall be a month-to-month
tenancy terminable at any time upon thirty (30)days prior written notice to the
other; provided, however, that in no event shall such month-to-month tenancy
continue beyond the end of the corresponding month-to-month holdover tenancy
described in Section 30 of the Lease that requires the consent of Lessor, and
in no event shall Sublessee be entitled to remain in possession of the Premises
after the expiration or earlier termination of the Lease. In the event of such
a hold over tenancy, the monthly rental rate hereunder shall be equal to the
monthly rental rate under the Lease then payable by Sublessor. Such holdover
rent shall be payable at the times specified in Paragraph 5. Such hold over
tenancy shall otherwise be subject to every applicable term, covenant and
agreement contained herein.
5. Rent.
5.1 Rent. Commencing on April 1, 1997 and continuing until
April 30, 2001 (or the end of the applicable Extension Term, if any), Sublessee
shall pay to Sublessor, without offset or deduction, monthly rent for the
Premises as follows:
Period Monthly Rent
April 1, 1997-April 30, 1998 $119,600.00
May 1, 1998-April 30, 1999 $122,720.00
May 1, 1999-April 30, 2000 $125,840.00
May 1, 2000-April 30, 2001 $128,960.00
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Extension Terms, if applicable:
May 1, 2001-April 30, 2002 $133,120.00
May 1, 2002-April 30, 2003 $136,240.00
Monthly rent shall be payable in advance on the first day of each
calendar month without prior notice or demand in lawful money of the United
States at the address set forth in Paragraph 10, or at such other place or
places as Sublessor may from time to time direct. All other sums payable by
Sublessee to Sublessor under this Sublease shall also be deemed to be rent and
are hereinafter referred to as "Additional Rent".
5.2 Late Charge. Sublessee hereby acknowledges that late payment by
Sublessee to Sublessor of Rent will cause Sublessor to incur costs not
contemplated by this Sublease, the exact amount of which will be extremely
difficult to ascertain. Such costs include, but are not limited to, processing
and accounting charges. Accordingly, Sublessee shall pay to Sublessor, as
Additional Rent (defined in Paragraph 5.3(a) below), without the necessity of
prior notice or demand, a late charge equal to six percent (6%) of any
installment of Rent which is not received by Sublessor within five (5) days
after the due date for such installment. The parties hereby agree that such
late charge represents a fair and reasonable estimate of the costs Sublessor
will incur by reason of late payment by Sublessee. In no event shall this
provision for a late charge be deemed to grant to Sublessee a grace period or
extension of time within which to pay any installment of Rent or prevent
Sublessor from exercising any right or remedy available to Sublessor upon
Sublessee's failure to pay such installment of Rent when due, including without
limitation the right to terminate the Sublease. Any installment of Rent which
is not paid when due shall bear interest at the annual rate set forth in
Paragraph 11 below.
5.3 Additional Rent.
(a) Payment of Additional Rent. In addition to the monthly
rent due pursuant to Paragraph 5.1 of this Sublease, Sublessee shall pay to
Sublessor an amount equal to the additional rent required to be paid by
Sublessor to Lessor pursuant to Paragraph 3B and any other provision of the
Lease (other than sums payable to Lessor under the fifth paragraph of Paragraph
21 of the Lease) for the period commencing on the Commencement Date and
continuing through the expiration of the Sublease Term (together with the sums
described below, "Additional Rent") within ten (10) days after notice from
Sublessor of the amount of the Additional Rent (provided, however, that
Sublessor shall not be obligated to give Sublessee more than one notice of the
amount of monthly installments payable under Paragraph 3B of the Lease and
Sublessee shall pay such installments to Sublessor on the first day of each
calendar month, without deduction or offset, but Sublessor shall notify
Sublessee of any change in such amount). Additional Rent shall also include all
charges, costs and expenses and other sums which Sublessee is required to pay
under this Sublease (together with all interest and charges that may accrue
thereon in the event of Sublessee's failure to pay the same), and if Sublessee
fails to pay any Additional Rent when due, Sublessor shall have all of the
remedies available to Sublessor under California law for nonpayment of rent.
The term "Rent" as used in this Sublease shall mean Rent and/or Additional Rent.
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6. Utilities. Sublessee shall pay during the Sublease Term and
prior to delinquency all charges for water, gas, light, heat, power,
electricity, telephone or other communication service, janitorial service, trash
pickup, sewer and all other services supplied to or consumed on the Premises
(collectively the "Services") and all taxes, levies, fees or surcharges
therefor. Sublessee shall arrange for Services to be supplied to the Premises
and shall contract for all of the Services in Sublessee's name prior to the
Commencement Date. The Commencement Date shall not be delayed by reason of any
failure by Sublessee to so contract for Services. In the event that any of the
Services are not separately billed or metered to the Premises, Sublessee shall
pay such cost to Sublessor, as Additional Rent. The lack or shortage of any
Services due to any cause whatsoever shall not affect any obligation of
Sublessee hereunder, and Sublessee shall faithfully keep and observe all the
terms, conditions and covenants of this Sublease and pay all Rentals due
hereunder, all without diminution, credit or deduction.
7. Maintenance of Premises.
7.1 Lessor's and Sublessor's Obligations. Sublessor shall
not be responsible to Sublessee for furnishing any service, maintenance, repairs
or improvements to the Premises, it being understood that such obligations are
solely those of the Lessor pursuant to Paragraphs 11A and 18 of the Lease or of
Sublessee pursuant to this Sublease. The failure of Lessor to fulfill its
obligations under the Lease or the exercise by Lessor of any rights specified in
the Lease (excluding an exercise by Lessor of its rights and remedies as the
result of a default by Sublessor under the Lease which is not caused by
Sublessee) shall not (i) entitle Sublessee to any allowance, reduction or
adjustment of Rentals, (ii) make Sublessor liable to Sublessee, (iii) excuse or
impair the obligation of Sublessee to perform or observe any of the terms or
conditions of this Sublease or (iv) entitle Sublessee to any claim of
constructive eviction. If Lessor shall be in material default under the Lease in
any of its obligations to Sublessor with respect to the Premises, Sublessor
shall have no obligation to bring any action or proceeding or to take any steps
to enforce Sublessor's rights against Lessor. Any steps, actions, or proceedings
so instituted by Sublessor at the request of Sublessee shall be at the expense
of Sublessee. Sublessee shall, by written notice to Sublessor, specify any such
alleged default by Lessor and Sublessor may, but shall not be obligated to,
after such notice elect to take action for the enforcement of Sublessor's rights
against Lessor with respect to such default. If Sublessor does not elect to do
either of the foregoing, then to the extent permitted by the Lease or applicable
law, Sublessee shall have the right to take enforcement action against Lessor in
its own name and, for that purpose and only to such extent, all of the rights of
Sublessor to enforce the obligations of Lessor under the Lease are hereby
conferred upon and are conditionally assigned to Sublessee and Sublessee hereby
is subrogated to such rights (including the benefit of any recovery or relief).
Notwithstanding the provisions of the immediately preceding sentence, in no
event shall Sublessee be entitled to take such action in its own name if such
action would constitute a default under the Lease. Sublessee shall indemnify and
hold Sublessor harmless from and against all loss, cost, liability, claims,
damages and expenses (including without limitation reasonable attorneys' fees),
penalties and fines incurred in connection with or arising from the taking of
any such action by Sublessee or from the taking of any action at the request of
Sublessee.
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7.2 Sublessee's Obligations. Sublessee shall perform all of
the obligations of Sublessor under Paragraph 11B of the Lease, including,
without limitation, keeping in effect a service contract for the maintenance of
the heating, ventilating, and air-conditioning (HVAC) equipment with an HVAC
repair and maintenance contractor approved by Lessor which provides for periodic
inspection and servicing at least once every three (3) months during the term of
the Lease, and providing Lessor with a copy of such contract and all periodic
service reports. Sublessee shall also provide Sublessor with a copy of such
contract and all periodic service reports. If Sublessee fails to make repairs or
perform maintenance work required of Sublessee hereunder, Sublessor may, in
addition to all other rights and remedies available hereunder or by law and
without waiving any alternative remedies, enter into the Premises and make such
repairs and/or perform such maintenance work without notice to Sublessee.
Sublessee hereby specifically acknowledges that the Lease does not provide for
any written notice of default or cure period to be provided by Lessor to
Sublessor for a default under the Lease. If Sublessor makes such repairs and/or
performs such maintenance work, Sublessee shall reimburse Sublessor upon demand
and as Additional Rent, for the cost of such repairs and/or maintenance work.
Sublessor shall have no liability to Sublessee for any damage, inconvenience or
interference with the use of the Premises by Sublessee as a result of Sublessor
performing any such repairs or maintenance. Sublessee shall reimburse Sublessor,
on demand and as Additional Rent, for the cost of damage to the Premises caused
by Sublessee or Sublessee's agents. Sublessee expressly waives the benefits of
any statute now or hereafter in effect (including without limitation the
provisions of subsection 1 of Section 1932, Section 1941 and Section 1942 of the
California Civil Code and any similar law, statute or ordinance now or hereafter
in effect) which would otherwise afford Sublessee the right to make repairs at
Sublessor's expense (or to deduct the cost of such repairs from rentals due
hereunder) or to terminate this Sublease because of Sublessor's failure to keep
the Premises in good and sanitary order.
8. Taxes.
8.1 Personal Property Taxes. Sublessee shall cause
Sublessee's trade fixtures, equipment, furnishings, furniture, merchandise,
inventory, machinery, appliances and other personal property installed or
located on the Premises (collectively "Sublessee's personal property") to be
assessed and billed separately from the Premises. Sublessee shall pay before
delinquency any and all taxes, assessments and public charges levied, assessed
or imposed upon or against Sublessee's personal property. If any of Sublessee's
personal property shall be assessed with the real property comprising the
Premises, Sublessee shall pay to Sublessor, as Additional Rent, the amounts
attributable to Sublessee's personal property within five (5) days after receipt
of a written statement from Sublessor setting forth the amount of such taxes,
assessments and public charges attributable to Sublessee's personal property.
Sublessee shall comply with the provisions of any law, ordinance, rule or
regulation of taxing authorities which require Sublessee to file a report of
Sublessee's personal property located on the Premises.
8.2 Other Taxes Payable by Sublessee. Sublessee shall pay or
reimburse Sublessor, as Additional Rent within five (5) days after receipt of
Sublessor's statement thereof, any and all taxes, levies, assessments or
surcharges imposed by a governmental authority and payable by Sublessor or
Sublessee (other than Sublessor's net income, succession, transfer, gift,
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franchise, estate or inheritance taxes), whether or not now customary or within
the contemplation of the parties hereto, whether or not now in force or which
may hereafter become effective, which are:
(a) Upon, allocable to, or measured by the area of the
Premises or the Rentals payable hereunder, including without limitation any
gross income, gross receipts, excise, or other tax levied by the state, any
political subdivision thereof, city or federal government with respect to the
receipt of such Rentals;
(b) Upon or with respect to the use, possession, occupancy,
leasing, operation and management of the Premises or any portion thereof;
(c) Upon this transaction or this Sublease; or
(d) Imposed in connection with the Premises as a means of
controlling or abating environmental pollution or the use of energy, including,
without limitation, any parking taxes, levies or charges or vehicular
regulations imposed by any governmental agency. Sublessee shall also pay, prior
to delinquency, all privilege, sales, excise, use, business, occupation, or
other taxes, assessments, license fees or charges levied, assessed or imposed
upon Sublessee's business operations conducted at the Premises.
(e) Any other taxes, levies, assessments or surcharges with
respect to the Premises payable by Sublessor to Lessor or to the taxing
authorities pursuant to the Lease (including, without limitation, Section 8B of
the Lease).
In the event any such taxes are payable by Sublessor and it shall not be
lawful for Sublessee to reimburse Sublessor for such taxes, then the Rentals
payable hereunder shall be increased to net Sublessor the same net Rental after
imposition of any such tax upon Sublessor as would have been payable to
Sublessor prior to the imposition of any such tax.
9. Use. Sublessee shall use the Premises for general office use,
research and development of computer related products and lab use for computer
related products and for no other purpose without the prior written consent of
Sublessor, which may be withheld in Sublessor's sole and absolute discretion.
Sublessee's business shall be established and conducted throughout the term
hereof in a first-class manner. Sublessee shall not use the Premises for, or
carry on, or permit to be carried on, any offensive, noisy or dangerous trade,
business, manufacture or occupation, nor permit any auction sale to be held or
conducted on or about the Premises. Sublessee shall not do or suffer anything to
be done within the Premises which will cause structural injury to the Premises.
Sublessee shall not dispose of, or suffer the disposal, drainage, leakage or
other discharge onto, into or about the Premises of any hazardous, toxic or
radioactive materials including without limitation, those specified in Sections
66680 through 66685 of Title 22 of the California Administrative Code, Division
4, Chapter 30, as the same may be amended from time to time, if such disposal,
drainage, leakage or other discharge is prohibited by law. Sublessee shall not
use or permit the use of the Premises or any part thereof for any purpose which
will increase the existing rate of insurance upon the Premises or cause a
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cancellation of any insurance policy covering the Premises or any part thereof.
If any act on the part of Sublessee or use of the Premises by Sublessee shall
cause, directly or indirectly, any increase of Sublessor's insurance expense,
said additional expense shall be paid by Sublessee to Sublessor, as Additional
Rent, upon demand. No such payment by Sublessee shall limit Sublessor in the
exercise of any other right or remedies, or constitute a waiver of Sublessor's
right to require Sublessee to discontinue such act or use.
10. Notices.
10.1 General. Any notice required or desired to be
given under this Sublease shall be in writing and all notices shall be given by
personal delivery, mailing, or by reputable overnight courier. All notices
personally given to Sublessee at the Premises may be delivered to any person
apparently in charge at the Premises, or any corporate officer or agent of
Sublessee (but a copy must also be delivered to the addresses set forth below).
All notices given by mail shall be served by first-class mail (registered or
certified, return receipt requested), postage prepaid. All notices shall be
addressed and delivered to Sublessee and to Sublessor at the following
address(es):
To Sublessor: National Semiconductor Corporation
1120 Kifer Road, Mail Stop 10-460
Sunnyvale, California 94086
To Sublessee: The Premises, with copies to:
McAfee Associates Inc.
2710 Walsh Avenue,
Santa Clara, California 95051, and to
Attention: Mr. Prabhat Goyal
Kent H. Roberts, Esq.
Moseley & Standerfer
4311 Oak Lawn Avenue, suite 500
Dallas, Texas 75219-3488
Either party may change its address for purposes of notice by giving notice of
such change of address to the other party in accordance with the provisions of
this paragraph. Any notice given pursuant to this paragraph shall be deemed
served when delivered by personal service, with delivery evidenced by a signed
receipt, on the business day following delivery to a reputable overnight
courier, or as of forty-eight (48) hours after the deposit thereof in the
United States mail.
10.2 Notices from Lessor. Sublessee shall send to Sublessor
a copy of all notices and other communications it receives from Lessor within
twenty-four (24) hours after receipt.
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11. Interest. Any payment due from Sublessee shall bear interest
from the date due until paid at an annual rate equal to the lesser of twelve
percent (12%) or the maximum rate allowable by law.
12. Right of Entry. Sublessor shall be entitled to enter into and
upon the Premises in the event of an emergency, in order to cure a default by
Sublessee under the Lease and in order to perform any obligations of Sublessor
under the Lease, in each case without prior notice to Sublessee.
13. Damage and Destruction. Sublessor shall have no obligation to
rebuild, restore or repair all or a portion of the Premises in the event of any
damage or destruction thereto. If the Premises are damaged or destroyed and
Sublessor has the right to terminate the Lease under Paragraph 15 of the Lease,
then provided Sublessee notifies Sublessor within ten (10) business days after
the damage or destruction that Sublessee desires Sublessor to terminate the
Lease (and this Sublease), Sublessor shall use reasonable efforts, at no cost to
Sublessor, to so terminate the Lease. If either Lessor or Sublessor elects to
terminate the Lease pursuant to the terms and conditions of Paragraph 15 of the
Lease, this Sublease shall terminate concurrently therewith without any
liability of Sublessor to Sublessee. Except as expressly set forth in this
Sublease, Sublessee shall have no right to terminate this Sublease in the event
of damage or destruction to all or a portion of the Premises and Sublessee
hereby expressly waives any rights to terminate this Sublease based on damage or
destruction, including without limitation any rights pursuant to the provisions
of Subdivision 2 of Section 1932 and Subdivision 4 of Section 1933 of the
California Civil Code, as amended from time to time, and the provisions of any
similar law hereinafter enacted, which provisions relate to the termination of
the hiring of a thing upon its substantial damage and destruction. If the
Premises are to be rebuilt or restored, and Sublessor receives an abatement of
rent under the Lease, the Rent payable under this Sublease shall be
proportionately reduced during the period of repair or restoration (provided
such damage and destruction shall not have been caused by the fault or neglect
of Sublessee, its agents, employees, or invitees), based upon the extent to
which the making of repairs interferes with Sublessee's business conducted on
the Premises, as reasonably determined by Sublessor, but in no greater
proportion than the rent paid by Sublessor to Lessor for the Premises is abated
to Sublessor. All other amounts due pursuant to this Sublease shall continue
unaffected.
14. Insurance. Sublessee shall pay or reimburse Sublessor within
ten (10) days after demand for all sums payable by Sublessor to Lessor under
Paragraph 9C of the Lease. All insurance policies required to be carried by
Sublessor pursuant to Paragraph 9 of the Lease shall instead be carried by
Sublessee, and in addition to the requirements of Paragraph 9 of the Lease,
shall name both Lessor and Sublessor as additional insureds and shall provide
that such policy or policies shall not be subject to cancellation or change
except after at least thirty (30) days prior written notice to Lessor and
Sublessor, and Sublessee shall deliver a certificate of such insurance to
Sublessor prior to the Commencement Date. Sublessee hereby releases Sublessor
from any and all claims, demands, losses, expenses and injuries to the Premises
or to the furnishings, fixtures, equipment, inventory, or other property of
Sublessee in, about, or upon the Premises, which is caused by or results from
perils, events, or happenings which are the subject of the insurance required
to be maintained by Sublessee.
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15. Indemnification. Sublessee shall indemnify, hold harmless, and
defend Sublessor (except for Sublessor's negligence or willful misconduct)
against all claims, losses, liabilities, costs and expenses (including, without
limitation, attorneys' fees and costs), and damages to the extent arising from
or relating to any breach or default in the performance of any obligation on
Sublessee's part to be performed under the terms of this Sublease, any injury
or death to any person or any damage to or loss of use of any property arising
out of any occurrence in, on or about the Premises or on account of the use,
condition, or occupancy of the Premises. The provisions of this Paragraph shall
survive termination of this Sublease with respect to any damage, injury, death,
breach or default occurring prior to such termination. This Sublease is made on
the express condition that Sublessor shall not be liable for, or suffer loss by
reason of, injury to person or property, from whatever cause (other than
Sublessor's negligence or willful misconduct), in any way connected with the
condition, use, or occupancy of the Premises, specifically including, without
limitation, any liability for injury to the person or property of Sublessee or
Sublessee's agents or invitees.
16. Property Loss; Damage. Sublessor shall not be liable for any
damage to property of Sublessee, nor for loss of or damage to any property of
Sublessee by theft or otherwise, nor for any injury or damage to persons or
property resulting from any cause of whatsoever nature, unless caused by or due
to the active negligence or willful misconduct of Sublessor.
17. Assignment and Subletting. Sublessee shall not assign or
sublease all or any portion of Sublessee's interest in the Sublease or in the
Premises or any part thereof or sublease all or any part of the Premises during
the term hereof without the written consent of Sublessor, which consent
Sublessor shall not unreasonably withhold. Any assigning or subletting by
Sublessee, however, shall be subject to Sublessor's ability to assign and
sublet pursuant to the terms and conditions of the Lease. Sublessor's consent
to any one assignment or sublet shall not constitute a waiver of the provisions
of this Paragraph as to any subsequent assignment or sublet nor a consent to
any subsequent assignment or sublet; further, Sublessor's consent to an
assignment or sublet shall not release Sublessee from Sublessee's obligations
under this Sublease, and Sublessee shall remain jointly and severally liable
with the assignee or sub-sublessee. It is the intent of the parties hereto that
this Sublease shall confer upon Sublessee only the right to use and occupy the
Premises, and to exercise such other rights as are conferred upon Sublessee by
this Sublease. The parties agree that this Sublease is not intended to have a
bonus value, nor to serve as a vehicle but whereby Sublessee may profit by
future assignment or sublease of this Sublease or the right to use or occupy
the Premises as a result of any terms contained herein. It is the intent of the
parties that any such bonus value that may attach to the Sublease (including,
without limitation, any consideration for assignment, and any sub-sublease
rentals in excess of the rent payable under this Sublease) shall be paid to
Sublessor and shall be and remain the exclusive property of Sublessor. (As used
herein, the term "bonus value" shall not include any of the income of
Sublessee, other than income paid by an assignee or sub-sublessee that exceeds
the rent payable under this Sublease.) Sublessee shall not hypothecate,
mortgage or encumber Sublessee's interest in this Sublease or in the Premises
or otherwise use this Sublease as a security device in any manner without the
consent of Sublessor, which consent Sublessor may withhold in its absolute
discretion. Consent by Sublessor to any such hypothecation or creation of lien
or mortgage
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<PAGE> 12
shall not constitute consent to an assignment or other transfer of this
Sublease following foreclosure of any permitted lien or mortgage.
18. Surrender of Premises. On the last day of the Sublease Term or
upon sooner termination of this Sublease, Sublease shall, to the reasonable
satisfaction of Sublessor, surrender the Premises, together with all
alterations, additions and improvements which may have been made in, to, or on
the Premises by Lessor, Sublessor or (to the extent permitted by this Sublease)
Sublessee to Sublessor in good condition (reasonable wear and tear excepted)
with all walls and columns painted, all carpets steam cleaned, the air
conditioning, ventilating and heating equipment inspected, serviced and
repaired by a reputable and licensed service firm, all floors cleaned and
waxed, all damaged ceiling tiles replaced, the windows cleaned, the blinds
cleaned and any damaged doors replaced. Sublessee shall remove all of
Sublessee's personal property and trade fixtures from the Premises, and all
property not so removed shall be deemed abandoned by Sublessee. Furthermore,
Sublessee shall immediately repair all damage to the Premises caused by any
such removal. If the Premises are not so surrendered at termination of this
Sublease, Sublessee shall indemnify Sublessor against any loss or liability
resulting from delay by Sublessee in so surrendering the Premises, including,
without limitation, any claims made by Lessor due to failure to surrender the
Premises in accordance with the Lease.
19. Condemnation. If either Lessor or Sublessor elects to terminate
the Lease pursuant to the terms and conditions of Paragraph 16 of the Lease,
this Sublease shall terminate concurrently therewith without any liability of
Sublessor to Sublessee. Sublessee shall have no right to terminate this
Sublease in the event of condemnation of all or a portion of the Premises and
Sublessee hereby expressly waives any rights to terminate this Sublease based
thereon. If a condemnation occurs and the Lease is not terminated, and
Sublessor receives an abatement of rent under the Lease as a result of the
condemnation, the Rent payable under this Sublease shall be proportionately
reduced in the proportion than the rent paid by Sublessor to Lessor for the
Premises is abated to Sublessor. All other amounts due pursuant to this
Sublease shall continue unaffected. Any award received by Sublessor as a result
of the taking of all or a portion of the Premises under any right of eminent
domain, or any transfer in lieu thereof including without limitation any award
for the value of this Sublease), shall belong to Sublessor, however, Sublessee
shall have the right to recover any award specifically made to Sublessee for
moving expenses or for Sublessee's trade fixtures, furnishings, equipment and
other personal property.
20. Lessor's Consent. Sublessee acknowledges that as to certain
matters set forth in this Sublease, Lessor has rights of approval or
disapproval. If any matter requiring Lessor's approval is submitted to
Sublessor by Sublessee and Sublessor approves such matter, Sublessor shall
submit the same to Lessor within a reasonable time after written request from
Sublessee and shall use reasonable efforts, at no cost to Sublessor, to obtain
Lessor's approval of such matter. In no event, however, shall Sublessor's
disapproval be deemed unreasonable if Lessor has disapproved of such matter nor
shall Sublessor have any liability to Sublessee by reason thereof. The
preceding sentence shall not limit Sublessee's rights under Section 7.1 above
to challenge the reasonableness of Lessor's action in disapproving the
requested action.
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<PAGE> 13
21. Sublessor's Right to Perform Sublessee's Covenants. Except as
otherwise provided herein, if Sublessee shall at any time fail to make any
payment or perform any other act required to be made or performed by Sublessee
under this Sublease, Sublessor may without notice to Sublessee, but shall not
be obligated to and without waiving or releasing Sublessee from any obligation
under this Sublease, make such payment or perform such other act to the extent
that Sublessor is required pursuant to the Lease, and in connection therewith,
pay expenses and employ counsel. All sums so paid by Sublessor and all
penalties, interest (in accordance with the terms of Paragraph 14 above) and
costs incurred in connection therewith shall be due and payable by Sublessee
upon demand by Sublessor. Notwithstanding the foregoing, Sublessor has all of
the rights against Sublessee that Lessor has against Sublessor under the Lease.
22. Brokers. Each party hereby represents to the other that it has
not dealt with any broker, salesperson or finder in connection with this
sublease transaction other than Cooper/Brady Corporate Real Estate Services
("Broker"), which represents Sublessee. Each party shall defend, indemnify and
hold the other harmless from and against any and all claims, liabilities,
losses, damages, costs and expenses (including, without limitation, attorneys'
fees and costs) arising from or in connection with any dealings by the
indemnifying party with any other broker, salesperson or finder. Sublessor
shall pay a broker's commission to Broker pursuant to a separate written
agreement between Sublessor and Broker, and Sublessee shall defend, indemnify
and hold Sublessor harmless from and against any and all claims, liabilities,
losses, damages, costs and expenses (including, without limitation, attorneys'
fees and costs) arising from any brokerage fees or commissions or similar
charges payable to Broker that exceed the sum payable by Sublessor to Broker
pursuant to said separate written agreement between Sublessor and Broker.
23. General.
23.1 Surrender of Sublease Not Merger. The voluntary or
other surrender of this Sublease, or a mutual cancellation thereof, shall not
work a merger and shall, at the option of Sublessor, terminate all or any
existing subleases or subtenants, or may, at the option of Sublessor, operate
as an assignment to Sublessor of any or all such subleases or subtenants.
23.2 Interpretation of Terms. The words "Sublessor" and
"Sublessee" as used herein shall include the plural as well as the singular.
Words in the neuter gender include the masculine and feminine and words in the
masculine or feminine gender include the neuter.
23.3 Counterparts. This Sublease may be executed in
counterparts, each of which shall be deemed an original for all purposes and
together shall constitute one instrument.
23.4 Governing Law. This Sublease shall be construed and
enforced in accordance with the laws of the State of California.
23.5 Joint and Several Liability. If Sublessee is more than
one person or entity, each such person or entity shall be jointly and severally
liable for the obligations of Sublessee hereunder.
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<PAGE> 14
23.6 Construction of Sublease Provisions. This Sublease shall not
be construed either for or against Sublessee or Sublessor, but shall be
construed in accordance with the general tenor of the language to reach a fair
and equitable result.
23.7 Conditions. All agreements by Sublessee contained in this
Sublease, whether expressed as covenants or conditions, shall be construed to
be both covenants and conditions, conferring upon Sublessor, in the event of a
breach thereof, the right to terminate this Sublease.
23.8 Attorneys' Fees. If a dispute arises under or in connection
with this Sublease or the interpretation thereof, the prevailing party (as
determined by the trier of fact) shall be entitled to recover from the other
party all of the attorneys' fees and costs incurred by it in connection with
the dispute.
23.9 Withholding of Sublessor's Consent. Notwithstanding any other
provision of this Sublease, where Sublessee is required to obtain the consent
of Sublessor to do any act, or to refrain from the performance of any act, or
for any other matter, Sublessee agrees that if Sublessee is in default with
respect to any sum payable by Sublessee under this Sublease or is in material
default with respect to any term, condition, covenant or provision of this
Sublease, or if Lessor refuses to consent to such act or matter, then
Sublessor shall be deemed to have acted reasonably in withholding its consent if
said consent is, in fact, withheld.
23.10 No Partnership or Joint Venture. Nothing in this Sublease
shall be construed as creating a partnership or joint venture between
Sublessor, Sublessee, or any other party, or cause Sublessor to be responsible
for the debts or obligations of Sublessee or any other party.
23.11 Entire Agreement. This Sublease, together with all exhibits
attached hereto, is the entire agreement between the parties, and there are no
binding agreements or representations between the parties except as expressed
herein. Any agreements, warranties or representations not expressly contained
herein shall in no way bind either Sublessor or Sublessee, and Sublessor and
Sublessee expressly waive all claims for damages by reason of any statement,
representation, warranty, promise or agreement, if any, not contained in this
Sublease. This Sublease supersedes and cancels any and all previous
negotiations, arrangements, brochures, agreements and understandings, whether
written or oral, between Sublessor and Sublessee with respect to the Premises
and appurtenances thereto. No addition to, or modification of, any term or
provision of this Sublease shall be effective until and unless set forth in a
written instrument signed by both Sublessor and Sublessee.
23.12 Exhibits. All exhibits attached to this Sublease shall be
deemed to be incorporated herein by the individual references to each such
exhibit, and all such exhibits shall be deemed a part of this Sublease as
though set forth in full in the body of the Sublease.
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<PAGE> 15
23.13 Authority. The undersigned parties hereby warrant that they have
proper authority and are empowered to execute this Sublease on behalf of the
Sublessor and Sublessee, respectively. Each individual executing this Sublease
represents and warrants that he is duly authorized to execute and deliver this
Sublease in accordance with a duly adopted resolution of the Board of Directors
of Sublessee or Sublessor, as applicable, or in accordance with the by-laws of
Sublessee or Sublessor, as applicable. Each party shall upon written request of
the other, deliver a certified copy of a resolution of the Board of Directors of
said corporation authorizing or ratifying the execution of this Sublease, or
other reasonable evidence of authority. Sublessee warrants that Sublessee is a
valid and existing corporation and Sublessee is qualified to do business in
California.
24. Not an Offer. The submission of this Sublease for examination
does not constitute an option or offer to sublease the Premises. This Sublease
shall have no binding effect on the parties unless executed by Sublessor and
Sublessee and a fully executed copy is delivered to Sublessor.
25. Time of the Essence. Time is of the essence of each and every
provision of this Sublease.
26. Waiver. The waiver by Sublessor or Sublessee of any breach of
any provision of this Sublease shall not be deemed to be a waiver of such
provision with respect to any other breach of that provision. The acceptance of
rent by Sublessor shall not be deemed to be a waiver of any breach by Sublessee
of any provision of this Sublease other than the failure of Sublessee to pay
the particular rent so accepted, regardless of Sublessor's knowledge of such
breach at the time of acceptance of such rent.
IN WITNESS WHEREOF, the parties have executed this Sublease effective
as of the date first set forth above.
SUBLESSOR:
NATIONAL SEMICONDUCTOR
CORPORATION, a Delaware corporation
By: /s/ DAVID S. DAHMEN
-----------------------------------
David S. Dahmen, Treasurer
SUBLESSEE:
MCAFEE ASSOCIATES, INC.
a Delaware corporation
By: /s/ PRABHAT K. GOYAL
-----------------------------------
Prabhat K. Goyal, Vice President-
Finance and Administration
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<PAGE> 16
EXHIBIT "A"
LEASE
-1-
<PAGE> 17
LEASE
THIS LEASE is made on the 6th day of October, 1995, by and between WTA-Bowers
(hereinafter called "Lessor") and National Semiconductor Corporation
(hereinafter called "Lessee").
IN CONSIDERATION OF THE MUTUAL PROMISES HEREIN CONTAINED, THE PARTIES AGREE AS
FOLLOWS:
1. Premises. Lessor leases to Lessee, and Lessee leases from Lessor, upon
the terms and conditions herein set forth, those certain Premises
("Premises") situated in the City of Santa Clara, County of Santa Clara,
California, as outlined in Exhibit "A" attached hereto and described as
follows: +/- 104,000 rentable square foot building located at 2805
Bowers Avenue, Santa Clara, California.
2. Term. The term of this Lease shall be for a period of five (5) years,
commencing on the date which is three weeks following the date on which
Lessor obtains a final Certificate of Occupancy from the City of Santa
Clara and tenders possession of the Premises to Lessee ("Commencement
Date"). Lessor anticipates that Lessor will obtain a final Certificate
of Occupancy on February 9, 1996, and therefore the Commencement Date
will be March 1, 1996 and the Lease will expire on February 28, 2001,
unless sooner terminated pursuant to any provision hereof.
If for any reason whatsoever, Lessor has not obtained a final
Certificate of Occupancy and delivered possession of the Premises to
Lessee by February 9, 1996, this Lease shall not be void or voidable,
nor shall Lessor be liable to Lessee for any loss or damage resulting
therefrom; but in such event, Lessee shall not be obligated to pay rent
until the date on which Lessor obtains a final Certificate of Occupancy
from the City of Santa Clara and tenders possession of the Premises to
Lessee, and the Commencement Date and termination date of this Lease
shall be revised to conform to such date. The foregoing notwithstanding,
if Lessor has not obtained a final Certificate of Occupancy and
delivered possession of the Premises to Lessee by April 1, 1996, Lessee
shall have the right to terminate this Lease by written notice to Lessor
delivered at any time thereafter prior to the date on which Lessor
obtains a final Certificate of Occupancy and delivers possession of the
Premises to Lessee.
In addition, the effectiveness of this Lease is conditioned upon Lessor
acquiring fee title to the Premises on or before November 15, 1995. If
Lessor has not acquired fee title to the Premises on or before November
15, 1995, either party may terminate this Lease by written notice to the
other delivered at any time before Lessor acquires fee title to the
Premises.
Lessee shall be permitted to occupy the Premises from the date on which
Lessor obtains a final Certificate of Occupancy from the City of Santa
Clara and tenders possession of the Premises to Lessee, provided that
Lessee abides by all terms and conditions of the Lease except for the
provision to pay rent. Lessee shall not be obligated to pay Rent until
the Commencement Date.
3. Rent. Commencing on the Commencement Date, Lessee shall pay to Lessor
rent for the Premises of One Hundred Four Thousand and 00/100 Dollars
($104,000.00) per month in lawful money of the United States of America,
subject to adjustment as provided in Section A of this Paragraph. Rent
shall be paid without deduction or offset, prior notice, or demand, at
such place as may be designated from time to time by Lessor as follows:
$104,000.00 shall be paid upon execution of the Lease, which sum
represents the amount of the first month's rent. Rent shall be paid in
advance on the first (1st) day of each calendar month as follows:
Months Monthly Rent/NNN
------ ----------------
01-12 $104,000.00
1
EXHIBIT A
<PAGE> 18
13-24 $107,120.00
25-36 $110,334.00
37-48 $113,644.00
49-60 $117,053.00
Rent for any period during the term hereof which is for less than one
(1) full month shall be a prorate portion of the monthly rent payment.
Lessee acknowledges that late payment by Lessee to Lessor of rent or any
other payment due Lessor will cause Lessor to incur costs not
contemplated by this Lease, the exact amount of such costs being
extremely difficult and impracticable to fix. Such costs include,
without limitation, processing and accounting charges, and late charges
that may be imposed on Lessor by the terms of any encumbrance and note
secured by any encumbrance covering the Premises. Therefore, if any
installment of rent or other payment due from Lessee is not received by
Lessor within five (5) days following the date it is due and payable,
Lessee shall pay to Lessor an additional sum of five percent (5%) of the
overdue amount as a late charge. The parties agree that this late charge
represents a fair and reasonable estimate of the costs that Lessor will
incur by reason of late payment by Lessee. Acceptance of any late charge
shall not constitute a waiver of Lessee's default with respect to the
overdue amount, nor prevent Lessor from exercising any of the other
rights and remedies available to Lessor.
A. Cost-of-Living Increase. Not applicable.
B. All taxes, insurance premiums, late charges, costs and expenses
which Lessee is required to pay hereunder, together with all
interest and penalties that may accrue thereon in the event of
Lessee's failure to pay such amounts, and all reasonable
damages, costs, and attorney's fees and expenses which Lessor
may incur by reason of any default of Lessee or failure on
Lessee's part to comply with the terms of this Lease, shall be
deemed to be additional rent (hereinafter, "Additional Rent"),
and, in the event of non-payment by Lessee, Lessor shall have
all of the rights and remedies with respect thereto as Lessor
has for the non-payment of monthly installment of rent.
Notwithstanding anything in this Paragraph 3.B. or elsewhere in
the Lease to the contrary: from and after the commencement date,
lessee shall pay to Lessor on the first day of each calendar
month of the lease term an amount estimated by Lessor to be
1/12th of the annual total of Additional Rent as defined herein.
Additional Rent shall include reimbursement for all
out-of-pocket expenses as defined in Paragraph 10 of this Lease,
except that property taxes and property insurance premiums shall
be invoiced separately to Lessee as billed by the taxing
authority and insurance carrier, and Lessee shall be obligated
to pay said property taxes and insurance premiums in accordance
with Paragraphs 8 and 9, respectively. Within ninety (90) days
following the end of each calendar year Lessor shall furnish
Lessee with a statement setting forth (i) the actual expenses
incurred by Lessor in the calendar year for which Lessor is
entitled to receive Additional Rent, and (ii) the payments of
Additional Rent actually made by Lessee with respect to such
period; if Lessee's payments of Additional Rent are less than
the amount of Additional Rent to which Lessor is entitled (based
on actual expenses), Lessee shall pay Lessor the deficiency
within ten (10) business days after receipt of such statement;
if Lessee's payments of Additional Rent exceed the amount of
Additional Rent to which Lessor is entitled (based on actual
expenses), Lessor shall offset the excess against the Additional
Rent next thereafter to become due to Lessor. Lessee shall have
the right to review Lessor's books and records from time to time
to verify the Additional Rent charges hereunder.
Prior to commencement of this Lease, and on an annual or
semi-annual basis thereafter, Lessor shall determine the amount
of the Additional Rent as described herein, based on a review of
the then-current operating costs of the subject property.
Concurrent
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<PAGE> 19
with its review of actual costs, Lessor may elect to make
adjustments to the monthly estimated payment, so that the
Additional Rent Payment is consistent with actual out-of-pocket
expenses.
4. Option to Extend Term.
A. Lessee shall have the option to extend the term on all the
provisions contained in this Lease for two (2) one (1)-year
periods ("extended term(s)") at an adjusted rental calculated as
provided in Subparagraph B below on the condition that:
(a) Lessee has given to Lessor written notice of exercise of
that option ("option notice") at least six (6) months
before expiration of the initial term or extended
term(s), as the case may be.
(b) Lessee is not in default in the performance of any of
the terms and conditions of the Lease on the date of
giving the option notice, and Lessee is not in default
on the date that the extended term is to commence.
B. Monthly rent for the extended term shall be as follows:
Option 1 $120,565.00/mo/NNN
Option 2 $124,181.00/mo/NNN
5. Security Deposit. Not applicable.
6. Use of the Premises. The Premises shall be used exclusively for the
purpose of general office, R&D and lab use for computer related
products.
Lessee shall not use or permit the Premises, or any part
thereof, to be used for any purpose or purposes other than the purpose
for which the Premises are hereby leased; and no use shall be made or
permitted to be made of the Premises, nor acts done, which will increase
the existing rate of insurance upon the building in which the Premises
are located, or cause a cancellation of any insurance policy covering
said building, or any part thereof, nor shall Lessee sell or permit to
be kept, used, or sold, in or about the Premises, any article which may
be prohibited by the standard form of fire insurance policies. Lessee
shall not commit or suffer to be committed any waste upon the Premises;
nor, without limiting the generality of the foregoing, shall Lessee
allow the Premises to be used for any improper, immoral, unlawful, or
objectionable purpose.
Lessee shall not place any harmful liquids in the drainage
system. No waste materials or refuse shall be dumped upon or permitted
to remain upon any part of the Premises outside of the building proper
except in trash containers placed inside exterior enclosures designated
for that purpose by Lessor, or inside the building proper where
designated by Lessor. No materials, supplies, equipment, finished or
semi-finished products, raw materials, or articles of any nature shall
be stored upon or permitted to remain on any portion of the Premises
outside of the building proper that causes a nuisance or violates and
applicable governmental codes or regulations; Lessee shall comply with
all the covenants, conditions, and/or restrictions ("C.C.&R.'s")
affecting the Premises.
Lessor represents to Lessee that soil and groundwater
remediation and testing have been performed on the Premises by a
previous tenant, Xerox Corporation ("Xerox") and that Xerox has caused
certain releases of Toxic or Hazardous Materials to soil and groundwater
at, on, and beneath the Premises. For purposes of this paragraph 6
"Toxic or Hazardous Materials" shall mean any product, substance,
chemical, material or waste whose presence, nature, quality and/or
intensity or existence, use, manufacture, disposal, transportation,
spill, release or effect, is either
3
<PAGE> 20
(i) potentially injurious to the public health, safety or welfare, the
environment, or the leased premises; (ii) regulated or monitored by any
governmental authority; or (iii) a basis for potential liability of
Lessee and Lessor to any governmental agency or third party under any
applicable statute or common law theory. Toxic or Hazardous Materials
shall include, but not be limited to, hydrocarbons, petroleum, gasoline,
crude oil or any products or by-products thereof. Lessor also
represents that Xerox is in final stages of groundwater sampling
required by the Regional Water Quality Control Board ("RWQCB") and that
site closure is pending. Xerox has provided an indemnification to
Lessor as owner of the Premises against liability arising in connection
with any soil or groundwater contamination caused by Xerox. Lessor
shall provide a copy of the Xerox indemnification to Lessee. In
addition, Lessor shall indemnify, defend and hold harmless Lessee,
directors, officers, employees, lenders, and successors against all
claims, obligations, liabilities, demands, damages, judgments, costs and
expenses, including reasonable attorneys' fees arising from or in
connection with the release or presence of any Toxic or Hazardous
Materials at, on, under, beneath, or emanating from the Premises prior
to Lessee's occupancy of the Premises. Lessee represents to Lessor that
it will not permit the use or storage on the Premises of Toxic or
Hazardous Materials, excluding, however, basic janitorial, maintenance
and office supplies, and materials commonly used in connection with
Lessee's business as described in Paragraph 6 hereof.
Lessee shall indemnify, defend, and hold Lessor and its
partners, directors, officers, employees, lenders, successors from and
against all claims, obligations, liabilities, demands, damages,
judgments and costs, including reasonable attorneys' fees arising from
or in connection with the release or presence of Toxic or Hazardous
Materials on, under, or about the Premises during the Lessee's occupancy
of the Premises. Lessee's and Lessor's obligations hereunder shall
survive the termination of this Lease.
Lessor shall have the right, upon reasonable advance written
notice to Lessee, to inspect, investigate, sample and/or monitor
(collectively, an "Inspection") the Premises to the extent reasonably
necessary to determine whether Lessee is complying with the terms of
this Lease with respect to Hazardous Materials. In connection with an
Inspection, Lessor shall not interfere with the operation of Lessee's
business on the Premises, or Lessee's use and enjoyment of the Premises,
and shall comply with all reasonable safety and business security
restrictions of Lessee. Lessee shall have the right, but not
obligation, to accompany Lessor during an Inspection and to obtain
duplicates of any samples taken. All costs incurred by Lessor pursuant
to this paragraph shall be the responsibility of Lessor, unless an
Inspection discloses the presence of Hazardous Materials and it is shown
that Lessee is in violation of the covenants contained in this Paragraph
6, in which event such costs shall be reimbursed by Lessee to Lessor
within fifteen (15) days after Lessor notifies Lessee of the obligations
hereunder.
If Lessee causes or knowingly permits a release of Hazardous
Materials at the Premises, Lessee shall perform such investigations,
undertake such monitoring of site conditions, and perform such clean-up,
containment, restoration, removal and other remedial work (collectively
"Remedial Work") as is required under and in compliance with all
applicable federal, state or local law, statute, regulation, rule,
ordinance, permit, license, order, requirement, agreement or approval,
of any determination, judgement, directive or order of any executive or
judicial authority at any federal, state or local level relating to
pollution or the protection of the environment or public health and
safety. All costs and expenses of such Remedial Work shall be paid by
Lessee, including without limitation, the charges of contractors and
consulting engineers.
7. Improvements: Lessor shall, at Lessor's sole cost, construct and
provide interior and exterior improvements to the Premises as specified
in the Space Plan attached as Exhibit "B-1" hereto and by this reference
made a part hereof, and in conformance with the Schedule of Tenant
Improvements attached as Exhibit "B-2" hereto and by this reference made
a part hereof and the Final Plans to be developed and approved by Lessor
and Lessee pursuant to this Paragraph 7.
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<PAGE> 21
A. Prior to the execution of this Lease, Lessee delivered to Lessor
a preliminary space plan, showing the location of hardwalls and open
office areas, together with Lessee's basic mechanical, electrical, and
heating and air conditioning design requirements (the "Preliminary
Plans"). Lessor shall cause to be prepared final plans and
specifications for the improvements that are consistent with and are
logical evolutions of the Preliminary Plans and consistent with Exhibit
"B-1", and shall deliver the same to Lessee for its approval on or
before October 4, 1995. If Lessee disapproves any portion of such plans
and specifications, then the parties shall confer and negotiate in good
faith to reach agreement on the final plans and specifications. Such
final plans and specifications shall be approved by Lessee on or before
October 2, 1995. As soon as the final plans, inclusive of design
drawings and specifications, are approved by Lessee, four (4) copies of
such final plans and specifications shall be initialled and dated by
Lessor and Lessee, and Lessor shall submit such final plans and
specifications and working drawings to all appropriate governmental
agencies for approval. Lessor shall obtain the building permit for the
improvements by December 1, 1995. Immediately after all such
governmental approvals have been obtained, the final plans and
specifications so approved (including and governmentally required
changes), and all changes orders specifically permitted by this
Agreement, are referred to herein as the "Final Plans" and shall become
part of this Lease as though set forth in full.
B. Once the Final Plans have been finally approved by Lessor and
Lessee, neither Lessor nor Lessee shall have the right to order extra
work or change orders with respect to the construction of the
improvements without the prior written consent of the other, which
consent shall not be unreasonably withheld or delayed. All extra work or
change orders requested by either party shall be made in writing, shall
specify the amount of delay or the time saved resulting therefrom, shall
specify any added or reduced cost resulting therefrom, shall specify
whether Lessee or Lessor shall be responsible for extra or reduced cost,
and shall become effective and a part of the Final Plans once approved
in writing by both parties. In the event of any excess costs created by
Lessee, Lessee shall pay to Lessor said costs on the Commencement Date
of the Lease. Should there be any cost savings created by Lessee,
Lessee's rental account shall be credited an amount equal to the cost
savings, such credit to be applied to the second month's rent.
C. As soon as the Final Plans have been developed as provided
above, and all necessary governmental approvals have been obtained,
Lessor shall cause construction of the improvements to be commenced and
diligently prosecuted to completion so that the improvements may be
substantially completed and the Certificate of Occupancy may be obtained
on or before February 9, 1996, but without representation or warranty as
to when the improvements will be completed.
D. Lessor shall provide Lessee access and entry to the Premises on
or before January 5, 1996 to permit Lessee to commence rough
installation of Lessee's communication system, and on or before February
2, 1996 to permit Lessee to commence installation of cubical panels and
modular furniture. Lessee shall conduct its installation work in a
manner that will cause the least interference with Lessor's construction
work.
E. As soon as Lessor's improvements are substantially completed
(i.e., completed except for punchlist items which do not prevent Lessee
from using the Premises for its intended use), Lessor and Lessee shall
together walk through and inspect the improvements, to identify all
uncompleted or defective construction. After such inspection has been
completed, the parties shall mutually agree upon and execute a list of
all "punchlist" items which are to be corrected by Lessor. Lessor shall
use its best efforts to complete and/or repair punchlist items within
thirty (30) days after execution of said punchlist. Lessee shall have
the right to submit to Lessor one additional punchlist of incomplete or
defective items within thirty (30) days after Commencement Date. Lessor
shall use its best efforts to complete and/or repair punchlist items
within thirty (30) days after delivery of said additional punchlist.
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Lessee shall not be obligated to accept possession of the
Premises unless and until the improvements installed, by Lessor as
outlined on Exhibits B-1 and B-2, are substantially completed and Lessor
has delivered to Lessee a true and correct copy of a validly issued
Certificate of Occupancy for the Premises.
F. Lessor hereby represents that, upon completion, the improvements
constructed by Lessor will be in compliance with all applicable laws,
ordinances, orders, rules, permits, requirements and regulations of any
federal, state, country or municipal government and any department,
subdivision, bureau or office thereof, or of any other governmental,
public or quasi-public authorities, including, without limitation,
requirements of Title 24 and Title III of the Americans With
Disabilities Act of 1990, 42 U.S.C. & 12101 et. seq., and the
regulations promulgated thereunder.
G. Lessor warrants for one (1) year after lease commencement, the
newly installed HVAC and electrical systems inclusive of transformer.
Lessor shall also warrant that Lessor's insurance covers mechanical
failure of the main electrical panel. These warranties regarding the
electrical systems and panel shall be void in the event that Lessee is
the cause of any failure of said electrical systems or panel.
Lessor shall warrant the improvements constructed by Lessor
against defects in material and workmanship for a period of one (1)
year. Lessee's acceptance of the Premises or submission of a punchlist
shall not be deemed a waiver of Lessee's right to have defects in the
improvements constructed by Lessor repaired at no cost to Lessee. Lessee
shall give notice to Lessor whenever any such defect becomes reasonably
apparent during the first year of the Lease term, and Lessor shall
repair the defect as soon as practical. Lessor's sole obligation shall
be either to repair or replace, as Lessor determines appropriate, any
defect which is warranted hereunder. Lessee agrees that Lessor shall not
be liable for consequential damages arising as a result of a defect
warranted hereunder.
Lessor shall inform Lessee of all written equipment warranties
existing in favor of Lessor which affect any equipment included in the
improvements, as to which Lessee has the obligation to repair or
maintain. Lessor shall reasonably cooperate with Lessee in enforcing
such warranties and in bringing any suit that may be necessary to
enforce liability with regard to any defective operation or equipment,
or at Lessor's election, Lessor will assign such warranties to Lessee.
8. Taxes and Assessments.
A. Lessee shall pay before delinquency any and all taxes,
assessments, license fees, and public charges levied, assessed, or
imposed upon or against Lessee's fixtures, equipment, furnishings,
furniture, appliances, and personal property installed or located on or
within the Premises. Lessee shall cause said fixtures, equipment,
furnishings, furniture, appliances, and personal property to be assessed
and billed separately from the real property of Lessor. If any of
Lessee's said personal property shall be assessed with Lessor's real
property, Lessee shall pay to Lessor the taxes attributable to Lessee
within ten (10) days after receipt of a written statement from Lessor
setting forth the taxes applicable to Lessee's property.
B. All property taxes or assessments levied or assessed by or
hereafter levied or assessed by any governmental authority against the
Premises or any portion of such taxes or assessments which becomes due
or accrued during the term of this Lease shall be paid by Lessor. Lessee
shall pay to Lessor on a semi-annual basis the amount of such taxes or
assessments within ten (10) business days of receipt of Lessor's invoice
demanding such payment, but not sooner than ten (10) days prior to tax
installment delinquency date. Lessee's liability hereunder shall be
prorated to reflect the commencement and termination dates of this
Lease.
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9. Insurance.
A. Indemnity. Lessee agrees to indemnify and defend Lessor against
and hold Lessor harmless from any and all demands, claims, causes of
action, judgments, obligations, or liabilities, and all reasonable
expenses incurred in investigating or resisting the same (including
reasonable attorneys fees) on account of, or arising out of, the
condition, excluding construction defects, use, or occupancy of the
Premises. This Lease is made on the express condition that Lessor shall
not be liable for, or suffer loss by reason of, injury to person or
property, from whatever cause, in any way connected with the condition,
use, or occupancy of the Premises, specifically including, without
limitation, any liability for injury to the person or property of
Lessee, its agents, officers, employees, licensees, and invitees.
B. Liability Insurance. Lessee shall, at its expense, obtain and
keep in force during the term of this Lease a policy of comprehensive
public liability insurance insuring Lessor and Lessee, with
cross-liability endorsements, against any liability arising out of the
condition, use, or occupancy of the Premises and all areas appurtenant
thereto, including parking areas. Such insurance shall be in an amount
satisfactory to Lessor of not less than one million dollars ($1,000,000)
for bodily injury or death as a result of one occurrence, and five
hundred thousand dollars ($500,000) for damage to property as a result
of any one occurrence. The insurance shall be with companies approved by
Lessor, which approval Lessor agrees not to withhold unreasonably. Prior
to possession, Lessee shall deliver to Lessor a certificate of insurance
evidencing the existence of the policy which (1) names Lessor as an
additional insured, (2) shall not be canceled or altered without thirty
(30) days' prior written notice to lessor, (3) insures performance of
the indemnity set forth in Section A of Paragraph 9, and (4) coverage is
primarily and any coverage by Lessor is in excess thereto.
C. Property Insurance. Lessor shall obtain and keep in force during
the term of this Lease a policy or policies of insurance covering loss
or damage to the Premises, in the amount of the full replacement value
thereof. Lessee shall pay to Lessor the cost of said insurance within
ten (10) business days of Lessee's receipt of Lessor's invoice demanding
such payment. Lessee acknowledges that such insurance procured by Lessor
shall contain a deductible which reduces Lessee's cost for such
insurance, and, in the event of loss or damage, Lessee shall be required
to pay to Lessor the amount of such deductible.
Lessor does not currently carry earthquake insurance. However,
Lessor reserves the right to do so should it become available at
commercially reasonable rates. Should Lessor obtain earthquake
insurance, Lessee shall not be obligated to contribute to the cost of
such insurance more than in amount equal to two (2) times the then
annual cost of fire and "all-risk" insurance per year.
D. Lessee and Lessor hereby release each other, and its partners,
officers, agents, employees, and servants, from any and all claims,
demands, loss, expense, or injury to the Premises or to the furnishings,
fixtures, equipment, inventory, or other property of Lessee in, about,
or upon the Premises, which is caused by or results from perils, events,
or happenings which are the subject of insurance in force at the time of
such loss.
10. Reimbursable Expenses and Utilities. Lessee shall pay for all water,
gas, light, heat, power, electricity, telephone, trash removal,
landscaping, sewer charges, and all other services, including normal and
customary property management fees to be capped at three percent (3%) of
the net rents, supplied to or consumed on the Premises. In the event
that any such services are billed directly to Lessor, then Lessee shall
pay Lessor for such expenses within ten (10) business days of Lessee's
receipt of Lessor's invoice demanding payment.
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11. Repairs and Maintenance.
A. Subject to provisions of paragraph 15, Lessor shall keep and
maintain in good order, condition and repair the structural
elements of the Premises including the roof, roof membrane,
paving, floor slab, foundation, exterior walls, landscaping,
irrigation and elevators. Lessor shall make such repairs,
replacements, alterations or improvements as Lessor deems
reasonably necessary with respect to such structural elements
and Lessee shall pay to Lessor, within ten (10) business days of
Lessor's invoice to Lessee therefor, Lessee's pro-rata share of
such repairs, replacements, alterations or improvements;
provided, however, that replacement and improvement costs shall
be amortized over the useful life of such replacements or
improvements, and Lessee shall be obligated to pay, as
additional rent, only the amount which coincides with the
remaining term of the Lease. Notwithstanding the foregoing, if
the reason for any repair, replacement, alteration or
improvement is caused by Lessee or arises because of a breach of
Lessee's obligations under this Lease, then Lessee shall pay
100% of the costs or expense to remedy the same.
B. Except as expressly provided in Subparagraph A above, Lessee
shall, at its sole cost, keep and maintain the entire Premises
and every part thereof, including, without limitation, the
windows, window frames, plate glass, glazing, truck doors,
doors, all door hardware, interior of the Premises, interior
walls and partitions, and electrical, plumbing, lighting,
heating, and air conditioning systems in good and sanitary
order, condition, and repair. Lessee shall, at all times during
the Lease term and at his expense, have in effect a service
contract for the maintenance of the heating, ventilating, and
air-conditioning (HVAC) equipment with an HVAC repair and
maintenance contractor approved by Lessor which provides for
periodic inspection and servicing at least once every three (3)
months during the term hereof. Lessee shall further provide
Lessor with a copy of such contract and all periodic service
reports.
Should Lessee fail to maintain the Premises or make
repairs required of Lessee hereunder forthwith upon notice from
Lessor, Lessor, in addition to all other remedies available
hereunder or by law, and without waiving any alternative
remedies, may make the same, and in that event, Lessee shall
reimburse Lessor as additional rent for the cost of such
maintenance or repairs on the next date upon which rent becomes
due.
Lessee hereby expressly waives the provision of
Subsection 1 of Section 1932, and Sections 1941 and 1942 of the
Civil Code of California and all rights to make repairs at the
expense of Lessor, as provided in Section 942 of said Civil
Code.
12. Alterations and Additions. Lessee shall not make, or suffer to be made,
any alterations, improvements, or additions in, on, or about, or to the
Premises or any part thereof, without prior written consent of Lessor
and without a valid building permit issued by the appropriate
governmental authority, except for non-structural alterations that do
not exceed $50,000 in cost and that do not affect the electrical or
mechanical systems and do not penetrate any structural element of the
building. Lessor retains, at his sole option, the right to retain a
General Contractor of his own choosing to perform all repairs,
alterations, improvements, or additions in, on, about, or to said
Premises or any part thereof. As a condition to giving such consent,
Lessor may require that Lessee agree to remove any such alterations,
improvements, or additions at the termination of this Lease, and to
restore the Premises to their prior condition. At the time Lessee
requests Lessor's approval for any alteration or addition, Lessee shall
also request that Lessor determine if such alteration or addition will
be required to be removed at the expiration of Lease. Any alteration,
addition, or improvement to the Premises, shall become the property of
Lessor upon installation, and shall remain upon and be surrendered with
the Premises at the termination of this Lease. Alterations and additions
which are not to be deemed as trade fixtures include heating, lighting,
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<PAGE> 25
electrical systems, air conditioning, partitioning, electrical signs,
carpeting, or any other installation which has become an integral part
of the Premises. In the event that Lessor consents to Lessee's making
any alterations, improvements,, or additions, Lessee shall be
responsible for the timely posting of notices of non-responsibility on
Lessor's behalf, which shall remain posted until completion of the
alterations, additions, or improvements. Lessee's failure to post
notices of non-responsibility as required hereunder shall be a breach of
this Lease.
If, during the term hereof, any alteration, addition, or change
of any sort through all or any portion of the Premises or of the
building of which the Premises form a part, is required by law,
regulation, ordinance, or order of any public agency, Lessee, at its
sole cost and expense, shall promptly make the same.
13. Acceptance of the Premises and Covenant to Surrender. By entry
(excluding Lessee's early access to the Premises as referred to in
Paragraph 7D above) and taking possession of the Premises pursuant to
this Lease, Lessee accepts the Premises as being in good and sanitary
order, condition, and repair, and accepts the Premises in their
condition existing as of date of such entry, and Lessee further accepts
any tenant improvements to be constructed by Lessor, if any, as being
completed in accordance with the plans and specifications for such
improvements. In each case, excluding punchlist items noted or described
in Paragraph 7, code compliance as of the Commencement Date of Lease,
blatant defects, and warranty work that may be required of a Lessor.
Lessee agrees on the last day of the term hereof, or on sooner
termination of this Lease, to surrender the Premises, together with all
alterations, additions, and improvements which may have been made in,
to, or on the Premises by Lessor or Lessee, unto Lessor in good and
sanitary order, condition, and repair, excepting for such wear and tear
as would be normal for the period of the Lessee's occupancy, and
excepting Acts of God, casualty, and condemnation. Lessee, on or before
the end of the term or sooner termination of this Lease, shall remove
all its personal property and trade fixtures from the Premises, and all
property not so removed shall be deemed abandoned by Lessee. Lessee
further agrees that at the end of the term or sooner termination of this
Lease, Lessee, at its sole expense, shall have the carpets steam
cleaned, the walls and columns painted, the flooring waxed, any damaged
ceiling tile replaced, the windows cleaned, the drapes cleaned, and any
damaged doors replaced, if necessary to restore the Premises to its
original condition, normal wear and tear excepted.
If the Premises are not surrendered at the end of the term or
sooner termination of this Lease, Lessee shall indemnify Lessor against
loss or liability resulting from delay by Lessee in so surrendering the
Premises, including, without limitation, any claims made by any
succeeding tenant founded on such delay.
14. Default. In the event of any breach of this Lease by the Lessee, the
Lessor has the option of (1.) removing all persons and property from the
Premises and repossessing the Premises, in which case any of the
Lessee's property which the Lessor removes from the Premises may be
stored in a public warehouse or elsewhere at the cost of, and for the
account of, Lessee; or (2.) allowing the Lessee to remain in full
possession and control of the Premiss. If the Lessor chooses to
repossess the Premises, the Lease will automatically terminate in
accordance with the provisions of the California Civil Code, Section
1951.2. In the event of such termination of the Lease, the Lessor may
recover from the Lessee: (1.) the worth at the time of award of the
unpaid rent which had been earned at the time of termination, including
interest at the maximum rate an individual is permitted by law to
charge; (2.) the worth at the time of award of the amount by which the
unpaid rent which would have been earned after termination until the
time of award exceeds the amount of such rental loss that the Lessee
proves could have been reasonably avoided, including interest at the
maximum rate an individual is permitted by law to charge; (3.) the worth
at the time of award of the amount by which the unpaid rent for the
balance of the term after the time of award exceeds the amount of such
rental loss that the Lessee proves could be reasonably avoided; and
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<PAGE> 26
(4.) any other amount necessary to compensate the Lessor for all the
detriment proximately caused by the Lessee's failure to perform his
obligations under the Lease or which, in the ordinary course of things,
would be likely to result therefrom. "The worth at the time of award,"
as used in (1.) and (2.) of this Paragraph, is to be computed by
allowing interest at the maximum rate an individual is permitted by law
to charge. "The worth at the time of award," as used in (3.) of this
Paragraph, is to be computed by discounting the amount at the discount
rate of the Federal Reserve Bank of San Francisco at the time of award,
plus one percent (1%).
If the Lessor chooses not to repossess the Premises, but allows
the Lessee to remain in full possession and control of the Premises,
then, in accordance with provisions of the California Civil Code,
Section 1951.4, the Lessor may treat the Lease as being in full force
and effect, and may collect from the Lessee all rents as they become due
through the termination date of the Lease, as specified in the Lease.
For the purpose of this paragraph, the following do not constitute a
termination of Lessee's right to possession: (1.) acts of maintenance or
preservation, or efforts to relet the property; (2.) the appointment of
a receiver on the initiative of the Lessor to protect his interest under
this Lease.
Lessee shall be liable immediately to Lessor for all costs
Lessor incurs in reletting the Premises, including, without limitation,
any unamortized brokers' commissions, expenses of remodeling the
Premises required by the reletting, and like costs. Reletting can be
for a period shorter or longer than the remaining term of tis Lease.
Lessee shall pay to Lessor the rent due under this Lease on the dates
the rent is due, less the rent Lessor receives from any reletting. No
act by Lessor allowed by this Section shall terminate this Lease unless
Lessor notifies Lessee that Lessor elects to terminate this Lease.
After Lessee's default and for as long as Lessor does not terminate
Lessee's right to possession of the Premises, if Lessee obtains Lessor's
consent, Lessee shall have the right to assign or sublet its interest in
this Lease, but Lessee shall not be released from liability. Lessor's
consent to a proposed assignment or subletting shall not be unreasonably
withheld.
If Lessor elects to relet the Premises as provided in this
Paragraph, rent that Lessor receives from reletting shall be applied to
the payment of: (1.) any indebtedness from Lessee to Lessor other than
rent due from Lessee; (2.) all costs, including for maintenance,
incurred by Lessor in reletting; (3.) rent due and unpaid under this
Lease. After deducting the payments referred to in this Paragraph, any
sum remaining from the rent Lessor receives from reletting shall be held
by Lessor and applied in payment of future rent as rent becomes due
under this Lease. In no event shall Lessee by entitled to any excess
rent received by Lessor. If, on the date rent is due under this Lease,
the rent received from reletting is less than the rent due on that date,
Lessee shall pay to Lessor, in addition to the remaining rent due, all
costs, including for maintenance, Lessor incurred in reletting that
remain after applying the rent received from the reletting, as provided
in this Paragraph.
Lessor, at any time after Lessee commits a default, can cure the
default at Lessee's cost. If Lessor at any time, by reason of Lessee's
default, pays any sum or does any act that requires the payment of any
sum, the sum paid by Lessor shall be due immediately from Lessee to
Lessor at the time the sum is paid, and if paid at a later date shall
bear interest at the maximum rate an individual is permitted by law to
charge from the date the sum is paid by Lessor until Lessor is
reimbursed by Lessee. The sum, together with interest on it, shall be
additional rent.
Rent not paid when due shall bear interest at the maximum rate
an individual is permitted by law to charge from the date due until
paid.
15. Destruction. In the event the Premises are destroyed in whole or in
part from any cause, Lessor may, at its option, (1.) rebuild or restore
the Premises to their condition prior to the damage or destruction or
(2.) terminate the Lease.
If Lessor does not give Lessee notice in writing within thirty
(30) days from the destruction of the Premises of its election neither
to rebuild and restore the Premises, or to terminate this Lease, Lessor
shall be deemed to have elected to rebuild or restore them, in which
event Lessor agrees,
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<PAGE> 27
at its expense, promptly to rebuild or restore the Premises to its
condition prior to the damage or destruction. If Lessor does not
complete the rebuilding or restoration within one hundred fifty (150)
days following the date of destruction (such period of time to be
extended for delays caused by the fault or neglect of Lessee or because
of acts of God, acts of public agencies, labor disputes, strikes, fires,
freight embargoes, rainy or stormy weather, inability to obtain
materials, supplies or fuels, acts of contractors or subcontractors, or
delay of the contractors or subcontractors due to such causes or other
contingencies beyond control of Lessor, (provided however such extension
is not more than thirty (30) days), then Lessee shall have the right to
terminate this Lease by giving fifteen (15) days prior written notice to
Lessor. Lessor's obligation to rebuild or restore shall not include
restoration of Lessee's trade fixtures, equipment, merchandise, or any
improvements, alterations, or additions made by Lessee to the Premises.
Unless this Lease is terminated pursuant to the foregoing
provisions, this Lease shall remain in full force and effect. Lessee
hereby expressly waives the provisions of Section 1932, Subdivision 2,
and Section 1933, Subdivision 4, of the California Civil Code.
Lessee shall have the right to terminate this Lease in the
event the Premises are damaged or destroyed and:
(i) in the reasonable opinion of Lessor's architect or
contractor, the restoration of the Premises cannot be
substantially completed within one hundred fifty (150)
days after the event of damage or destruction, which
election shall be made by written notice to Lessor
within thirty (30) days after Lessee receives from
Lessor the estimate of the time needed to complete
repair or restoration of the Premises, or
(ii) the restoration of the Premises is not actually
substantially completed within one hundred fifty (150)
days after the event of damage or destruction, which
election shall be made by written notice to Lessor
within thirty (30) days after the expiration of said one
hundred fifty (150) day period but before the repair or
restoration is actually completed; or
(iii) the event of damage or destruction occurs in the last
twelve (12) months of the Lease term.
If Lessee so elects to terminate the Lease, the Lease shall terminate as
of the date that Lessor elects not to proceed with the restoration
and/or repairs.
16. Condemnation. If any part of the Premises shall be taken for any public
or quasi-public use, under any statute or by right of eminent domain, or
private purchase in lieu thereof, and a part thereof remains, which is
susceptible of occupation hereunder, this Lease shall, as to the part so
taken, terminate as of the date title shall vest in the condemnor or
purchaser, and the rent payable hereunder shall be adjusted so that the
Lessee shall be required to pay for the remainder of the term only such
portion of such rent as the value of the part remaining after taking
such bears to the value of the entire Premises prior to such taking.
Lessor shall have the option to terminate this Lease in the event that
such taking causes a reduction in rent payable hereunder by fifty
percent (50%) or more. If all of the Premises or such part thereof be
taken so that there does not remain a portion susceptible for occupation
hereunder, as reasonably necessary for Lessee's conduct of its business
as contemplated in this Lease, this Lease shall thereupon terminate. If
a part of all of the Premises be taken, all compensation awarded upon
such taking shall go the Lessor, and the Lessee shall have no claim
thereto, and the Lessee hereby irrevocably assigns and transfers to the
Lessor any right to compensation or damages to which the Lessee may
become entitled during the term hereof by reason of the purchase or
condemnation of all or a part of the Premises, except that Lessee shall
have the right to recover its share of any award or consideration for
(1.) moving expenses; (2.) loss or damage to Lessee's trade fixtures,
furnishings, equipment, and other personal property; and (3.) business
goodwill. Each party waives the provisions of the Code of
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Civil Procedure. Section 1265.130, allowing either party to petition the
Superior Court to terminate this Lease in the event of a partial taking
of the Premises.
17. Free from Liens. Lessee shall (1.) pay for all labor and services
performed for materials used by or furnished to Lessee, or any
contractor employed by Lessee with respect to the Premises, and (2.)
indemnify, defend, and hold Lessor and the Premises harmless and free
from any liens, claims, demands, encumbrances, or judgments created or
suffered by reason of any labor or services performed for materials used
by or furnished to Lessee or any contractor employed by Lessee with
respect to the Premises, and (3.) give notice to lessor in writing five
(5) days prior to employing any laborer or contractor to perform
services related, or receiving materials for use upon the Premises, and
(4.) shall post, on behalf of Lessor, a notice of non-responsibility in
accordance with the statutory requirements of the California Civil Code,
Section 3904, or any amendment thereof. In the event an improvement bond
with a public agency in connection with the above is required to be
posted, Lessee agrees to include Lessor as an additional obligee.
18. Compliance with Laws. Lessee shall, at its own cost, comply with and
observe all requirements of all municipal, county, state, and federal
authority now in force, or which may hereafter be in force, pertaining
to the use and occupancy of the Premises. Notwithstanding anything
contained in Paragraphs 11, 12 and 18 of Lease, if it becomes necessary
to make capital improvements required by laws enacted or legal
requirements imposed by governmental agency(ies), then if such legal
requirement is not imposed because of Lessee's specific use of the
Premises and is not "triggered" by Lessee's alterations or Lessee's
application for a building permit or any other governmental approval (in
which instance Lessee shall be responsible for 100% of the cost of such
improvement). Lessor shall be responsible for constructing such
improvement and Lessee shall be responsible for its proportional share
of the cost for said improvement, amortized over the useful life of such
improvement that coincides with the remaining Lease term.
19. Subordination. Lessee agrees that this Lease shall, at the option of
Lessor, be subjected and subordinated to any mortgage, deed of trust, or
other instrument of security, which has been or shall be placed on the
land and building, or land or building of which the Premises form a
part, and this subordination is hereby made effective without any
further act of Lessee or Lessor. The Lessee shall, at any time
hereinafter, on demand, execute any instruments, releases, or other
documents that may be required by any mortgagee, mortgagor, trustor, or
beneficiary under any deed of trust, for the purpose of subjecting or
subordinating this Lease to the lien of any such mortgage, deed of
trust, or other instrument of security, provided that such agreement
complies with Lessee's occupancy. If Lessee fails to execute and deliver
any such documents or instruments, Lessee irrevocably constitutes and
appoints Lessor as Lessee's special attorney-in-fact to execute and
deliver any such documents or instruments.
20. Abandonment. If Lessee shall dispossessed by process of law, any
personal property belonging to Lessee and left on the Premises shall be
deemed to be abandoned, at the option of Lessor, except such property as
may be mortgaged to Lessor; Lessee shall not be deemed to have abandoned
or vacated the Premises so long as Lessee continues to pay all rents as
and when due, and otherwise performs pursuant to the terms and
conditions of this Lease.
21. Assignment and Subletting. Lessee's interest in this Lease is not
assignable, by operation of law or otherwise, nor shall Lessee have the
right to sublet the Premises, transfer any interest of Lessee's therein,
or permit any use of the Premises by another party, without the prior
written consent of Lessor to such assignment, subletting, or transfer of
use, which consent shall not be withheld or delayed unreasonably.
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If Lessee is a partnership, a withdrawal or change, voluntary,
involuntary, or by operation of law, of any partner(s) owning fifty
percent (50%) or more of the partnership, of the dissolution of the
partnership, shall be deemed as a voluntary assignment.
If Lessee consists of more than one person, a purported
assignment, voluntary, involuntary, or by operation of law, from one
person to the other or from a majority of persons to the others, shall
be deemed a voluntary assignment.
If Lessee is a corporation, any dissolution, merger,
consolidation, or other reorganization of Lessee, or the sale or other
transfer of a controlling percentage of the capital stock of Lessee, or
sale of at least fifty-one percent (51%) of the value of the assets of
Lessee, shall be deemed a voluntary assignment. The phrase "controlling
percentage" means the ownership of, and the right to vote, stock
possessing at least fifty-one percent (51%) of the total combined voting
power of all classes of Lessee's capital stock issued, outstanding, and
entitled to vote for the election of directors. This paragraph shall not
apply to corporations the stock of which is traded through an exchange
or over the counter.
In the event of any subletting or transfer which is consented
to, or not consented to, by Lessor, a subtenant or transferee agrees to
pay monies or other consideration, whether by increased rent or
otherwise, in excess of or in addition to those provided for herein,
then all of such excess or additional monies or other consideration
shall be paid solely to Lessor, and this shall be one of the conditions
to obtaining Lessor's consent.
Lessee immediately and irrevocably assigns to Lessor, as
security for Lessee's obligations under this Lease, all rent from any
subletting of all or a part of the Premises as permitted by this Lease,
and Lessor, as assignee and as attorney-in-fact for Lessee, or a
receiver for Lessee appointed on Lessor's application, may collect such
rent and apply it toward Lessee's obligations under this Lease; except
that, until the occurrence of an act of default by the Lessee, Lessee
shall have the right to collect such rent.
A consent to one assignment, subletting, occupation, or use by
another party shall not be deemed to be a consent to any subsequent
assignment, subletting, occupation, or use by another party. Any
assignment or subletting without such consent shall be void and shall,
at the option of the Lessor, terminate this Lease. Lessor's waiver or
consent to any assignment or subletting hereunder shall not relieve
Lessee from any obligation under this Lease unless the consent shall so
provide. If Lessee requests Lessor to consent to a proposed assignment
or subletting, Lessee shall pay to Lessor, whether or not consent is
ultimately given, Lessor's reasonable attorneys' fees incurred in
conjunction with each such request.
22. Parking Charges. Lessee agrees to pay upon demand any parking charges,
surcharges, or any other cost hereafter levied or assessed by local,
state, or federal governmental agencies in connection with the use of
the parking serving the Premises, including, without limitation, parking
surcharged imposed by or under the authority of the Federal
Environmental Protection Agency.
23. Insolvency or Bankruptcy. Either (1.) the appointment of a receiver to
take possession of all or substantially all of the assets of Lessee, or
(2.) a general assignment by Lessee for the benefit of creditors, or
(3.) any action taken or suffered by Lessee under any insolvency or
bankruptcy act shall constitute a breach of this Lease by Lessee. Upon
the happening of any such event, this Lease shall terminate ten (10)
days after written notice of termination from Lessor to Lessee. This
section is to be applied consistent with the applicable state and
federal laws in effect at the time such event occurs.
24. Lessor Loan or Sale. Lessee agrees promptly following request by Lessor
to (1.) execute and deliver to Lessor any documents, including estoppel
certificates presented to Lessee by Lessor, (a.) certifying that this
Lease is unmodified and in full force and effect, or, if modified,
stating the nature of such modification and certifying that this Lease,
as so modified, is in full force and effect and the date to which the
rent and other charges are paid in advance, if any, and (b.)
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acknowledging that there are not, to Lessee's knowledge, any uncured
defaults on the part of Lessor hereunder, and (c.) evidencing the status
of the Lease as may be required either by a lender making a loan to
Lessor, to be secured by deed of trust or mortgage covering the
Premises, or a purchaser of the Premises from Lessor, and (2.) to
deliver to Lessor an Annual Report and a 10K. Lessee's failure to
deliver an estoppel certificate within ten (10) business days following
such request shall constitute a default under this Lease and shall be
conclusive upon Lessee that this Lease is in full force and effect
and has not been modified except as may be represented by Lessor. If
Lessee fails to deliver the estoppel certificates within the three (3)
days, Lessee irrevocably constitutes and appoints Lessor as its special
attorney-in-fact to execute and deliver the certificate to any third
party.
25. Surrender of Lease. The voluntary or other surrender of this Lease by
Lessee shall not work a merger nor relieve Lessee of any of Lessee's
obligations under this Lease, and shall, at the option of Lessor,
terminate all or any existing Subleases or Subtenancies, or may, at the
option of Lessor, operate as an assignment to him of any or all such
Subleases or Subtenancies.
26. Attorney's Fees. If, for any reason, any suit be initiated to enforce
any provision of this Lease, the prevailing party shall be entitled to
legal costs, expert witness expenses, and reasonable attorneys' fees, as
fixed by the court.
26. Notices. All notices to be given to Lessee may be given in writing,
personally, or by depositing the same in the United States mail, postage
prepaid, and addressed to Lessee at the said Premises, whether or not
Lessee has departed from, abandoned, or vacated the Premises. Any notice
or document required or permitted by this Lease to be given Lessor shall
be addressed to Lessor at the address set forth below, or at such other
address as it may have theretofore specified by notice delivered in
accordance herewith:
LESSOR: WTA-Bowers
900 Welch Road, Suite 10
Palo Alto, California 94304
LESSEE: National Semiconductor Corporation
1120 Kifer Road, M/S 10-460
Sunnyvale, CA 94086
National Semiconductor Corporation
2805 Bowers Avenue
Santa Clara, CA 95054
28. Transfer of Security. Not applicable.
29. Waiver. The waiver by Lessor or Lessee of any breach of any term,
covenant, or condition, herein contained shall not be deemed to be a
waiver of such term, covenant, or condition, or any subsequent breach of
the same or any other term, covenant, or condition herein contained. The
subsequent acceptance of rent hereunder by lessor shall not be deemed to
be a waiver of any preceding breach by Lessee of any term, covenant, or
condition of this Lease, other than the failure of Lessee to pay the
particular rental so accepted, regardless of Lessor's knowledge of such
preceding breach at the time of acceptance of such rent.
30. Holding Over. Any holding over after the expiration of the term or any
extension thereof, with the consent of lessor, shall be construed to be
a tenancy from month-to-month, at a rental of one and
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one-quarter (1 1/4) times the previous month's rental rate per month,
and shall otherwise be on the terms and conditions herein specified, so
far as applicable.
31. Covenants, Conditions and Restrictions. Not applicable.
32. Limitation on Lessor's Liability. If Lessor is in default of this Lease,
and, as a consequence, Lessee recovers a money judgment against Lessor,
the judgment shall be satisfied only out of the proceeds of sale
received on execution of the judgment and levy against the right, title,
and interest of Lessor in the Premises, or in the building, other
improvements, and land of which the Premises are part, and out of rent
or other income from such real property receivable by Lessor or out of
the consideration received by Lessor from the sale or other disposition
of all or any part of Lessor's right, title, and interest in the
Premises or in the building, other improvements, and land of which the
Premises are part. Neither Lessor nor any of the partners comprising the
partnership designated as Lessor shall be personally liable for any
deficiency.
33. Quiet Possession. Lessor covenants that the Lessee, on paying the rent
and performing the covenants aforesaid, shall and may peacefully and
quietly have, hold and enjoy the Premises for the term aforesaid.
34. Miscellaneous.
A. Time is of the essence of this Lease, and of each and all of its
provisions.
B. LEFT BLANK
C. LEFT BLANK
D. Lessee's such reasonable use of parking areas shall not exceed
that percent of the total parking areas which is equal to the
ratio which floor space of the Premises bears to floor space of
the building.
E. The term "assign" shall include the term "transfer."
F. The invalidity or unenforceability of any provision of this
Lease shall not affect the validity or enforceability of the
remainder of this Lease.
G. All parties hereto have equally participated in the preparation
of this Lease.
H. The headings and titles to the Paragraphs of this Lease are not
a part of this Lease and shall have no effect upon the
construction or interpretation of any part thereof.
I. Lessor has made no representation(s) whatsoever to Lessee
(express or implied) except as may be expressly stated in
writing in this Lease instrument.
J. This instrument contains all of the agreements and conditions
made between the parties hereto, and may not be modified orally
or in any other manner than by agreement in writing, signed by
all of the parties hereto or their respective successors in
interest.
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K. It is understood and agreed that the remedies herein given to
Lessor shall be cumulative, and the exercise of any one remedy
by Lessor shall not be to the exclusion of any other remedy.
L. The covenants and conditions herein contained shall, subject to
the provisions as to assignment, apply to and bind the heirs,
successors, executors, and administrators, and assigns of all
the parties hereto; and all of the parties hereto shall jointly
and severally be liable hereunder.
M. This Lease has been negotiated by the parties hereto and the
language hereof shall not be construed for or against either
party.
N. All exhibits to which reference is made are deemed incorporated
into this Lease, whether covenants or conditions, on the part of
Lessee shall be deemed to be both covenants and conditions.
IN WITNESS WHEREOF, Lessor and Lessee have executed this Lease on the date
first above-written.
LESSOR: LESSEE:
WTA-BOWERS NATIONAL SEMICONDUCTOR CORPORATION
BY: /s/ HOWARD WHITE BY: /s/ DAVID S. DAHMEN
---------------------------- ----------------------------
DAVID S. DAHMEN
ITS: GEN PARTNER ITS: TREASURER
--------------------------- ---------------------------
DATE: 10/24/95 DATE: 10/16/95
-------------------------- --------------------------
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[FLOOR PLAN]
BOWERS AVENUE
EXHIBIT A
<PAGE> 34
[Design Build BID Set]
EXHIBIT B-1
<PAGE> 35
[FLOOR PLAN]
<PAGE> 36
EXHIBIT B-2
SCHEDULE OF TENANT IMPROVEMENTS
NATIONAL SEMICONDUCTOR CORPORATION
2805 BOWERS AVENUE, SANTA CLARA
EXTERIOR
--------
* Install storefront glass on first floor as shown on Exhibit B-1
* Paint all exterior - color to be mutually agreed on by Lessor and Lessee
* Parking lot upgrade, including patching, sealing and striping
* Refurbish landscape and irrigation
* Concrete sidewalk repairs as necessary to comply with ADA
* ADA upgrades to exterior as required to comply with code
* New sprayed-in-place polyurethane foam/elastomeric coating roofing
system with 1 year guarantee
* Repair, if necessary, exterior lighting
INTERIOR
--------
* Lessor will provide construction design per NSC's space plan (Exhibit
B-1). Both parties shall use their best efforts to expedite and approve
all design drawings.
* Shell electrical, 2500 amp, 480/277 volt service with distribution to
subpanels for NSC workstations as outlined on Exhibit B-1
* Fire sprinkler modifications as necessary (semi-recessed heads)
* New walls, framing, HVAC and electrical to support NSC space plan shown
on Exhibit B-1
* Replacement of HVAC system (including zoning of enclosed areas), 1 year
warranty
* Doors, frames and hardware per Exhibit B-1
* T-bar ceilings, 2x4 acoustic tiles as per Exhibit B-1
* Interior painting, color to be mutually agreed on by Lessor and Lessee
* Hand rail upgrade per ADA
* New flooring (allowance of $24 per yard), conductive flooring in labs
and computer room (allowance of $7 per sq. ft.)
* Millwork for coffee bars and lobby (allowance of $50,000)
* Compliance with all applicable city, state and seismic codes
* Upgrade of elevators with new carpet and ceiling and ADA compliance
* 1 shower each in one set of first floor restrooms
* Construct patio deck over existing loading dock outside cafeteria
(allowance of $10,000)
* Upgrade main lobby for displays (allowance of $10,000)
* Provide overhead cable trays above T-bar ceilings as per Exhibit B-1
(allowance of $32,000)
NOT INCLUDED
------------
* All telephone/data/communication equipment and installation
* Security system
* Furniture, fixtures and installation
* Electrical connection and distribution to work stations
* Compressed air and vacuum lines
* All items not specifically listed herein and not shown on Exhibit B-1
INITIALS: DAVID S. DAHMEN, NATIONAL SEMICONDUCTOR CORPORATION
HOWARD WHITE, WTA-BOWERS LLC
10/16/95