\n I. Entire Agreement…………………………………………………….50
\n J. Authority…………………………………………………………..50
\n K. Exhibits……………………………………………………………50
\n L. Lease Summary……………………………………………………….50
\n M. Memorandum of Lease………………………………………………….50
\n<\/c><\/s><\/table>\n 8
\n BUILD TO SUIT LEASE<\/p>\n
1. Parties.<\/p>\n
THIS BUILD TO SUIT LEASE (the “Lease”), dated as of July 14,
\n1998, is entered into by and between MARTIN\/CAMPUS ASSOCIATES, L.P., a Delaware
\nlimited partnership (“Landlord”), whose address is 100 Bush Street, San
\nFrancisco, CA 94104, and AT HOME CORPORATION, a Delaware corporation (“Tenant”),
\nwhose address is 425 Broadway, Redwood City, CA.<\/p>\n
2. Premises.<\/p>\n
Landlord hereby leases to Tenant and Tenant hereby leases from
\nLandlord those certain premises to situated in a building to be constructed by
\nLandlord pursuant to the terms of this Lease which shall be commonly known as
\n420 Broadway (the “Building”), in the City of Redwood City, County of San Mateo,
\nState of California, as more particularly shown on Exhibit A (the “Premises”),
\nwhich Premises shall consist of a total area of approximately 90,840 square
\nfeet. On or before the Commencement Date, Landlord shall measure the Rentable
\nArea of the Premises in accordance with BOMA Standard (ANSI Z65.1 1980) for full
\nfloor office occupancy, and Landlord and Tenant shall amend this Lease if
\nnecessary to reflect any discrepancy in the size of the Premises disclosed by
\nLandlord’s measurement of the Premises by Landlord’s architect. The Premises
\nalso includes the appurtenant right to use in common with other tenants of the
\nProject (as defined below) the Common Area (as defined below) of the Project
\nowned by Landlord.<\/p>\n
3. Definitions.<\/p>\n
The following terms shall have the following meanings in this
\nLease:<\/p>\n
A. Affiliate. Any Person that controls, or is controlled by or is
\nunder common control with, Landlord or Tenant. No Person shall be deemed in
\ncontrol of another simply by virtue of being a partner, director, officer or
\nholder of voting securities of any Person. For purposes of this Paragraph 3.A,
\n“control” shall mean the ownership of, and\/or the right to vote, stock,
\npartnership interests, membership interests, or other indicia of ownership
\npossessing at least fifty-one percent (51%) of either the total combined
\ninterests in a Person, or the voting power of all classes of a Person’s capital
\nstock, partnership interests, membership interests, or other indicia of
\nownership, that have been issued, outstanding, and (if applicable) are entitled
\nto vote.<\/p>\n
B. Alterations. Any alterations, additions or improvements made
\nin, on or about the Premises after the substantial completion of the
\nImprovements, including, but not limited to, lighting, heating, ventilating, air
\nconditioning, electrical, partitioning, drapery and carpentry installations.<\/p>\n
C. Broadway Lease. That certain lease dated as of October 18,
\n1996, by and between Landlord and Tenant, for those certain premises commonly
\nknown as 425 Broadway,<\/p>\n
2
\n 9
\nsituated in the City of Redwood City, County of San Mateo, State of California.<\/p>\n
D. Capital Improvements. Those certain improvements to the
\nBuilding to be constructed by Landlord pursuant to Paragraph 10.A and the Work
\nLetter Agreement attached to this Lease as Exhibit B (the “Work Letter”).<\/p>\n
E. CC&Rs. Any declaration of conditions, covenants and\/or
\nrestrictions, or similar instrument, that now encumbers, or may in the future
\nencumber the Project or the Premises, as adopted by Landlord or its successors
\nin interest from time to time, and any modifications or amendments thereto.<\/p>\n
F. Collateral Agreements. The following agreements: (i) the
\nBroadway Lease, (ii) that certain Build to Suit Option Agreement by and between
\nLandlord and Tenant, dated as of October 25, 1996 (the “Build to Suit
\nAgreement”), (iii) that certain Agreement Granting Rights of First Offer, by and
\nbetween Landlord and Tenant, dated as of October 25, 1996, (iv) that certain
\nWarrant to Purchase Series A Common Stock of At Home Corporation and that
\ncertain Second Amended and Restated Registration Rights Agreement, executed by
\nLandlord, Tenant and certain other parties, each dated as of October 18, 1996
\n(collectively, the “Warrant Agreement”), and (v) any leases at any time executed
\nby Tenant arising out of Tenant’s exercise of any of its rights set forth in the
\nagreements described in items (ii) and (iii) above. The “450 Broadway Lease”
\nshall mean that certain lease between Landlord and Tenant with respect to the
\npremises commonly known as 450 Broadway, Redwood City, California.<\/p>\n
G. Commencement Date. The Commencement Date of this Lease shall
\nbe the first day of the Term determined in accordance with Paragraph 4.A.<\/p>\n
H. Common Area. All areas and facilities within the Project not
\nappropriated to the exclusive occupancy of tenants, including the Parking Area,
\nthe sidewalks, pedestrian ways, driveways, signs, pools, ponds, service delivery
\nfacilities, common storage areas, common utility facilities and all other areas
\nin the Project established by Landlord and\/or its successors for non-exclusive
\nuse. Landlord may, by written notice to Tenant, elect in its sole discretion to
\nincrease and\/or decrease the Common Area from time to time during the Term for
\nany reason whatsoever (including without limitation an election by Landlord
\nand\/or its successors in their sole discretion to make changes to the buildings
\nsituated in the Project, and\/or to subdivide, sell, exchange, dispose of,
\ntransfer, or change the configuration of all or any portion of the Common Area
\nfrom time to time), so long as Landlord neither unreasonably interferes with
\ningress to or egress from the Building, nor permanently reduces the number of
\nparking spaces available for Tenant’s use below the minimum requirements set
\nforth in Paragraph 37. No such subdivision, sale, exchange, disposition,
\ntransfer, or change to the configuration of all or any portion of the Common
\nArea shall cause the Common Area to be increased or decreased unless and until
\nLandlord has given Tenant written notice of such increase or decrease.<\/p>\n
I. Common Area Maintenance Costs. The total of all costs and
\nexpenses paid or incurred by Landlord in connection with the operation,
\nmaintenance, ownership and repair of the Common Area, and the performance of
\nLandlord’s obligations under Paragraphs 17.A and 17.E. Without limiting the
\ngenerality of the foregoing, Common Area Maintenance<\/p>\n
3
\n 10<\/p>\n
Costs include all costs of and expense for: (i) maintenance and repairs of the
\nCommon Area; (ii) resurfacing, resealing, remarking, painting, repainting,
\nstriping or restriping the Parking Area; (iii) maintenance and repair of all
\npublic or common facilities; (iv) maintenance, repair and replacement of
\nsidewalks, curbs, paving, walkways, Parking Area, Project signs, landscaping,
\nplanting and irrigation systems, trash facilities, loading and delivery areas,
\nlighting, drainage and common utility facilities, directional or other signs,
\nmarkers and bumpers, and any fixtures, equipment and personal property located
\non the Common Area; (v) wages, salaries, benefits, payroll burden fees and
\ncharges of personnel employed by Landlord and the charges of all independent
\ncontractors retained by Landlord (to the extent that such personnel and
\ncontractors are utilized by Landlord) for the maintenance, repair, management
\nand\/or supervision of the Project, and of any security personnel retained by
\nLandlord in connection with the operation and maintenance of the Common Area
\n(although Landlord shall not be required to obtain security services); (vi)
\nmaintenance, repair and replacement of security systems and alarms installed by
\nLandlord (if any); (vii) depreciation or amortization (or in lieu thereof,
\nrental payments) on all tools, equipment and machinery used in the operation and
\nmaintenance of the Common Area; (viii) premiums for Comprehensive General
\nLiability Insurance or Commercial General Liability Insurance, casualty
\ninsurance, workers compensation insurance or other insurance on the Common Area,
\nor any portion thereof or interest therein, and any deductibles payable with
\nrespect to such insurance policies; (ix) all personal property or real property
\ntaxes and assessments levied or assessed on the Project, or any portion thereof
\nor interest therein, including without limitation the Real Property Taxes for
\nthe Project, if applicable under Paragraph 15.A; (x) cleaning, collection,
\nstorage and removal of trash, rubbish, dirt and debris, and sweeping and
\ncleaning the Common Area; (xi) legal, accounting and other professional services
\nfor the Project, including costs, fees and expenses of contesting the validity
\nor applicability of any law, ordinance, rule, regulation or order relating to
\nthe Building, and of contesting, appealing or otherwise attempting to reduce any
\nReal Property Taxes assessed against the Project; (xii) any alterations,
\nadditions or improvements required to be made to the Common Area in order to
\nreduce Common Area Maintenance Costs or to protect the health or safety of
\noccupants of the Project, provided that the cost of any such alterations,
\nadditions, improvements or capital improvements, together with interest at the
\nInterest Rate, shall be amortized over the useful life of the alteration,
\naddition, improvement or capital improvement in question and included in Common
\nArea Maintenance Costs for each year over which such costs are amortized; (xiii)
\nall costs and expenses of providing, creating, maintaining, repairing, managing,
\noperating, and supervising an amenity center for the Project, which may include
\nwithout limitation a dining facility (provided, however, that Landlord shall not
\nbe required to provide or create such an amenity center), which costs and
\nexpenses may include without limitation rent charged by Landlord for the space
\noccupied by such amenity center; (xiv) all costs and expenses incurred by
\nLandlord in performing its obligations under Paragraphs 17.A or 17.E, including
\nwithout limitation all costs and expenses incurred in performing any
\nalterations, additions or improvements required to be made to the Building in
\norder to comply with applicable laws, ordinances, rules, regulations and orders
\nand all capital improvements required to made in connection with the operation,
\nmaintenance and repair of the Building, provided that the cost of any such
\nalterations, additions, improvements or capital improvements, together with
\ninterest at the Interest Rate, shall be amortized over the useful life of the
\nalteration, addition, improvement or capital improvement in question and
\nincluded in Common Area Maintenance Costs for each year over which such costs
\nare amortized; (xv) all costs and expenses incurred in performing any<\/p>\n
4
\n 11
\nalterations, additions or improvements required to be made to the Common Area in
\norder to comply with applicable laws, ordinances, rules, regulations and orders
\nand all capital improvements required to made in connection with the operation,
\nmaintenance and repair of the Common Area, provided that the cost of any such
\nalterations, additions, improvements or capital improvements, together with
\ninterest at the Interest Rate, shall be amortized over the useful life of the
\nalteration, addition, improvement or capital improvement in question and
\nincluded in Common Area Maintenance Costs for each year over which such costs
\nare amortized; (xvi) any and all payments due and owing on behalf of the Project
\nor any portion thereof with respect to any CC&Rs, including without limitation
\nany and all assessments and association dues; (xvii) any other cost or expense
\nwhich this Lease expressly characterizes as a Common Area Maintenance Cost, and
\n(xviii) all costs and expenses related to the adoption and maintenance of a
\nportion of Highway 101. However, notwithstanding the foregoing or anything to
\nthe contrary in this Lease, Common Area Maintenance Costs shall not include the
\ncost of or expenses for the following: (A) leasing commissions, attorneys’ fees
\nor other costs or expenses incurred in connection with negotiations or disputes
\nwith other tenants of the Project; (B) depreciation of buildings in the Project;
\n(C) payments of principal, interest, late fees, prepayment fees or other charges
\non any debt secured by a mortgage covering the Project, or rental payments under
\nany ground lease or underlying lease; (D) any penalties incurred due to
\nLandlord’s violation of any governmental rule or authority (but not excluding
\nthe cost of compliance therewith, if such cost is chargeable to Tenant pursuant
\nto this Lease); (E) any Real Property Taxes or costs for which Landlord is
\nseparately and directly reimbursed by Tenant or any other tenant of the Project
\nwhich are assessed against the Premises or the premises leased by such other
\ntenant(s); (F) items for which Landlord is reimbursed by insurance; (G) all
\ncosts arising from monitoring, cleaning up and otherwise remediating any release
\nof Hazardous Materials at the Premises that has been specifically identified by
\nLandlord and Tenant in writing as of the date of the Lease; (H) all costs
\nassociated with the operation of the business of the entity which constitutes
\n“Landlord”, as distinguished from the costs of operations, including, but not
\nlimited to, costs of partnership accounting and legal matters, costs of
\ndefending any lawsuits with any mortgagee (except as the actions of Tenant may
\nbe in issue), costs of selling, syndicating, financing, mortgaging, or
\nhypothecating any of the Landlord’s interest in the Project and\/or Common Area,
\nor any portion thereof, costs of any disputes between Landlord and its
\nemployees, costs of disputes of Landlord with Building management or costs paid
\nin connection with disputes with Tenant or any other tenants; (I) all costs
\n(including permit, license and inspection fees) incurred in renovating or
\notherwise improving or decorating, painting or redecorating space for other
\ntenants in the Project; (J) the creation of any reserves for equipment or
\ncapital replacement (but not the expenditure of any funds from such reserves);
\nand (K) all costs arising from monitoring, cleaning up and otherwise remediating
\nany release of Hazardous Materials at the Premises to the extent that Landlord
\n(who shall use reasonable efforts to obtain reimbursement) is actually
\nreimbursed by third parties for such costs (but not the costs of collection
\nincurred by Landlord, unless such costs of collection are also reimbursed by
\nthird parties).<\/p>\n
J. Final Plans. As defined in the Work Letter.<\/p>\n
K. HVAC. Heating, ventilating and air conditioning.<\/p>\n
L. Impositions. Taxes, assessments, charges, excises and levies,
\nbusiness<\/p>\n
5
\n 12
\ntaxes, license, permit, inspection and other authorization fees, transit
\ndevelopment fees, assessments or charges for housing funds, service payments in
\nlieu of taxes and any other fees or charges of any kind at any time levied,
\nassessed, charged or imposed by any federal, state or local entity, (i) upon,
\nmeasured by or reasonably attributable to the cost or value of Tenant’s
\nequipment, furniture, fixtures or other personal property located in the
\nPremises, or the cost or value of any Alterations; (ii) upon, or measured by,
\nany Rent payable hereunder, including any gross receipts tax; (iii) upon, with
\nrespect to or by reason of the development, possession, leasing, operation,
\nmanagement, maintenance, alteration, repair, use or occupancy by Tenant of the
\nPremises, or any portion thereof; or (iv) upon this Lease transaction, or any
\ndocument to which Tenant is a party creating or transferring any interest or
\nestate in the Premises. Impositions do not include franchise, transfer,
\ninheritance or capital stock taxes, or income taxes measured by the net income
\nof Landlord from all sources, except to the extent any such taxes are levied or
\nassessed against Landlord as a substitute for, in whole or in part, any item
\nthat would otherwise be deemed an Imposition under this paragraph.<\/p>\n
M. Improvements. Collectively, the Tenant Improvements and the
\nCapital Improvements.<\/p>\n
N. Index. The Consumer Price Index, All Urban Consumers, All
\nItems, published by the U.S. Department of Labor, Bureau of Labor Statistics for
\nthe San Francisco-Oakland-San Jose Metropolitan Area (1982-84=100). If the Base
\nYear of the Index is changed, then all calculations pursuant to this Lease which
\nrequire the use of the Index shall be made by using the appropriate conversion
\nfactor published by the Bureau of Labor Statistics (or successor agency) to
\ncorrelate to the Base Year of the Index herein specified. If no such conversion
\nfactor is published, then Landlord shall, if possible, make the necessary
\ncalculation to achieve such conversion. If such conversion is not in Landlord’s
\ngood-faith, business judgment possible, or if publication of the Index is
\ndiscontinued, or if the basis of calculating the Index is materially changed,
\nthen the term “Index” shall mean comparable statistics on the cost of living, as
\ncomputed either (i) by an agency of the United States Government performing a
\nfunction similar to the Bureau of Labor Statistics, or (ii) if no such agency
\nperforms such function, by a substantial and responsible periodical or
\npublication of recognized authority most closely approximating the result which
\nwould have been achieved by the Index, as may be determined by Landlord in the
\nexercise of its reasonable good faith business judgment.<\/p>\n
O. Interest Rate. Either (i) the greater of (a) twelve percent
\n(12%) per annum, or (b) the reference rate, or succeeding similar index,
\nannounced from time to time by the Bank of America’s main San Francisco office,
\nplus three percent (3%) per annum; or (ii) the maximum rate of interest
\npermitted by law, whichever is less.<\/p>\n
P. INTENTIONALLY DELETED<\/p>\n
Q. Landlord’s Agents. Landlord’s authorized agents, partners,
\nsubsidiaries, directors, officers, and employees.<\/p>\n
R. Lease Year. A period of twelve (12) consecutive calendar
\nmonths during the Term, commencing with the Commencement Date if the
\nCommencement Date is the first day<\/p>\n
6
\n 13
\nof a calendar month, or commencing with the first day of the month following the
\nCommencement Date if the Commencement Date is not the first day of a calendar
\nmonth. The first Lease Year shall include the period between the Commencement
\nDate and the first day of the month following the Commencement Date if the
\nCommencement Date is not the first day of a calendar month. The last Lease Year
\nshall consist of the period between the date on which the Term expires or
\nterminates and the day after the last day of the preceding Lease Year.<\/p>\n
S. Monthly Rent. The rent payable pursuant to Paragraph 5.A., as
\nadjusted from time to time pursuant to the terms of this Lease.<\/p>\n
T. Parking Area. All Common Area (except sidewalks and service
\ndelivery facilities) now or hereafter designated by Landlord for the parking or
\naccess of motor vehicles, including roads, traffic lanes, vehicular parking
\nspaces, landscaped areas and walkways, and including any parking structure
\nconstructed during the Term. Landlord and\/or its successors may, by written
\nnotice to Tenant, elect in their sole discretion to increase and\/or decrease the
\nParking Area from time to time during the Term for any reason whatsoever
\n(including without limitation an election by Landlord and\/or its successors in
\ntheir sole discretion to make changes to the buildings situated in the Project,
\nand\/or to subdivide, sell, exchange, dispose of, transfer, or change the
\nconfiguration of all or any portion of the Parking Area from time to time), so
\nlong as such changes to the Parking Area do not permanently reduce the number of
\nparking spaces available for Tenant’s use below the minimum requirements set
\nforth in Paragraph 37. No such subdivision, sale, exchange, disposition,
\ntransfer, or change to the configuration of all or any portion of the Parking
\nArea shall cause the Parking Area to be increased or decreased unless and until
\nLandlord has given Tenant written notice of such increase or decrease.<\/p>\n
U. Person. Any individual, partnership, firm, association,
\ncorporation, limited liability company, trust, or other form of business or
\nlegal entity.<\/p>\n
V. Project. That certain real property shown on Exhibit C.
\nLandlord and\/or its successors may, by written notice to Tenant, elect in their
\nsole discretion to increase and\/or decrease the number of buildings and\/or the
\namount of Rentable Area situated in the Project from time to time during the
\nTerm for any reason whatsoever.<\/p>\n
W. Real Property Taxes. Taxes, assessments and charges now or
\nhereafter levied or assessed upon, or with respect to, the Project, or any
\npersonal property of Landlord used in the operation thereof or located therein,
\nor Landlord’s interest in the Project or such personal property, by any federal,
\nstate or local entity, including: (i) all real property taxes and general and
\nspecial assessments; (ii) charges, fees or assessments for transit, housing, day
\ncare, open space, art, police, fire or other governmental services or benefits
\nto the Project, including assessments, taxes, fees, levies and charges imposed
\nby governmental agencies for such purposes as street, sidewalk, road, utility
\nconstruction and maintenance, refuse removal and for other governmental
\nservices; (iii) service payments in lieu of taxes; (iv) any tax, fee or excise
\non the use or occupancy of any part of the Project, or on rent for space in the
\nProject; (v) any other tax, fee or excise, however described, that may be levied
\nor assessed as a substitute for, or as an addition to, in whole or in part, any
\nother Real Property Taxes; and (vi) reasonable consultants, and attorneys’ fees
\nand expenses incurred in connection with proceedings to contest, determine or
\nreduce Real<\/p>\n
7
\n 14<\/p>\n
Property Taxes. Real Property Taxes do not include: (A) franchise, transfer,
\ninheritance or capital stock taxes, or income taxes measured by the net income
\nof Landlord from all sources, unless any such taxes are levied or assessed
\nagainst Landlord as a substitute for, in whole or in part, any Real Property
\nTax; (B) Impositions and all similar amounts payable by tenants of the Project
\nunder their leases; and (C) penalties, fines, interest or charges due for late
\npayment of Real Property Taxes by Landlord. If any Real Property Taxes are
\npayable, or may at the option of the taxpayer be paid, in installments, such
\nReal Property Taxes shall, together with any interest that would otherwise be
\npayable with such installment, be deemed to have been paid in installments,
\namortized over the maximum time period allowed by applicable law. If the tax
\nstatement from a taxing authority does not allocate Real Property Taxes to the
\nBuilding, Landlord shall make the determination of the proper allocation of such
\nReal Property Taxes based, to the extent possible, upon records of the taxing
\nauthority and, if not so available, then on an equitable basis.<\/p>\n
X. Rent. Monthly Rent plus the Additional Rent as defined in
\nParagraph 5.E.<\/p>\n
Y. Rentable Area. The aggregate square footage in any one or more
\nbuildings in the Project, as appropriate, as reasonably determined by Landlord’s
\narchitect from time to time in accordance with BOMA Standard (ANSI Z65.1 1980)
\nfor full floor office occupancy.<\/p>\n
AA. Security Deposit. That amount paid by Tenant pursuant to
\nParagraph 7.<\/p>\n
BB. Sublet. Any transfer, sublet, assignment, license or
\nconcession agreement, change of ownership, mortgage, or hypothecation of this
\nLease or the Tenant’s interest in the Lease or in and to all or a portion of the
\nPremises. As used herein, a Sublet includes the following: (i) if Tenant is a
\npartnership or a limited liability company, a transfer, voluntary or
\ninvoluntary, of all or any part of any interest in such partnership or limited
\nliability company, or the dissolution of the partnership or limited liability
\ncompany, whether voluntary or involuntary; (ii) if Tenant is a corporation, any
\ndissolution, merger, consolidation or other reorganization of Tenant, or the
\ntransfer, either by a single transaction or in a series of transactions, of a
\ncontrolling percentage of the stock of Tenant (except that a Sublet shall not
\ninclude any such transfer of a controlling percentage of the stock of Tenant
\noccurring at a time when the stock of Tenant is publicly traded on a nationally
\nrecognized stock exchange or over the counter), or the sale, by a single
\ntransaction of or series of transaction, within any one (1) year period, of
\ncorporate assets equaling or exceeding twenty percent (20%) of the total value
\nof Tenant’s assets (except in connection with an initial public offering of the
\nstock of Tenant on a nationally recognized stock exchange or over the counter);
\n(iii) if Tenant is a trust, the transfer, voluntarily or involuntarily, of all
\nor any part of the controlling interest in such trust; and (iv) if Tenant is any
\nother form of entity, a transfer, voluntary or involuntary, of all or any part
\nof any interest in such entity. As used herein, the phrases “controlling
\npercentage” and “controlling interest” means the ownership of, and\/or the right
\nto vote, stock, partnership interests, membership interests, or other indicia of
\nownership possessing at least fifty-one percent (51%) of either the total
\ncombined interests in Tenant, or the voting power of all classes of Tenant’s
\ncapital stock, partnership interests, membership interests, or other indicia of
\nownership, that have been issued, outstanding, and (if applicable) are entitled
\nto vote.<\/p>\n
8
\n 15<\/p>\n
CC. Subrent. Any consideration of any kind received, or to be
\nreceived, by Tenant from a subtenant if such sums are related to Tenant’s
\ninterest in this Lease or in the Premises, including without limitation bonus
\nmoney and payments (in excess of book value) for Tenant’s assets, including
\nwithout limitation its trade fixtures, equipment and other personal property,
\ngoodwill, general intangibles, and any capital stock or other equity ownership
\nof Tenant.<\/p>\n
DD. Subtenant. The person or entity with whom a Sublet agreement
\nis proposed to be or is made.<\/p>\n
EE. Tenant Delay. Any delay that Landlord may encounter in the
\nperformance of Landlord’s obligations under the Lease because of any act or
\nomission of any nature by Tenant or its agents or contractors, including without
\nlimitation any (i) delay attributable to the postponement of any Improvements at
\nthe request of Tenant; (ii) delay by Tenant in the submission of information or
\nthe giving of authorizations or approvals within the time limits set forth in
\nthe Lease or the Work Letter; (iii) delay attributable to the failure of Tenant
\nto pay, when due, any amounts required to be paid by Tenant pursuant to the
\nLease or the Work Letter; and (iv) delay resulting from any change order request
\ninitiated or requested by Tenant.<\/p>\n
FF. Tenant Improvements. Those certain improvements to the
\nPremises to be constructed by Landlord pursuant to Exhibit B, other than the
\nCapital Improvements. The Tenant Improvements shall at all times be the property
\nof Landlord and shall not be deemed Tenant’s Personal Property.<\/p>\n
GG. Tenant’s Percentage Share. The ratio (expressed as a
\npercentage) of the total Rentable Area of the Premises to the total Rentable
\nArea of all of the buildings at the Project owned by Landlord from time to time,
\nwhich as of the Commencement Date shall equal ________% (i.e., the Rentable Area
\nof the Premises divided by the Rentable Area of the buildings at the Project
\nowned by Landlord as of the date of this Lease). Tenant’s Percentage Share shall
\nbe recalculated each and every time that the amount of Rentable Area contained
\nin Premises is adjusted, or the Premises is expanded, buildings are added to or
\nremoved from the Project, or there is a change in the total Rentable Area of
\nthose buildings in the Project owned by Landlord, or Landlord sells, exchanges,
\nor otherwise transfers any or all of the buildings situated in the Project
\n(including without limitation the Building). The parties acknowledge and agree
\nthat the total Rentable Area of all of the buildings in the Project owned by
\nLandlord may increase and\/or decrease from time to time during the Term, since
\nLandlord may elect in its sole discretion to sell a building or buildings or to
\nmake changes to the buildings it owns in the Project (so long as Landlord does
\nnot unreasonably interfere with ingress to or egress from the Premises).<\/p>\n
HH. Tenant’s Personal Property. Tenant’s trade fixtures,
\nfurniture, equipment and other personal property in the Premises.<\/p>\n
II. Term. The Term of this Lease set forth in Paragraph 4.A., as
\nit may be extended hereunder pursuant to any options to extend granted herein.<\/p>\n
9
\n 16<\/p>\n
JJ. Fixed Charge Ratio. Tenant’s consolidated earnings before
\nincome taxes, depreciation and amortization during the fiscal year in question,
\ndivided by the sum of (i) all interest charges occurring during the fiscal year
\nin question, and (ii) all of Tenant’s scheduled debt amortization payable during
\nthe fiscal year in question.<\/p>\n
4. Lease Term.<\/p>\n
A. Term. Subject to adjustment for Tenant Delays pursuant to
\nParagraph 4.B below, the Term shall commence on the date of substantial
\ncompletion of the Improvements to be constructed by Landlord (the “Commencement
\nDate”), and terminate on the date that is fifteen (15) years after the
\n“Commencement Date” under the 450 Broadway Lease. For the purposes of this
\nLease, substantial completion shall mean that the Improvements have been
\ncompleted in accordance with the Final Plans approved by Landlord and Tenant,
\nsubject only to minor punch-list items, and the City of Redwood City has issued
\na final building inspection approval for such Improvements.<\/p>\n
B. Delays in Completion. Tenant agrees that if Landlord, for any
\nreason whatsoever, is unable to substantially complete the Improvements on or
\nbefore Landlord’s initial estimate of the Commencement Date, Landlord shall not
\nbe liable to Tenant for any loss or damage therefrom, nor shall this Lease be
\nvoid or voidable. Upon the establishment of the actual Commencement Date,
\nLandlord and Tenant shall execute a Commencement Date Memorandum in the form set
\nforth in Exhibit D. Notwithstanding any provision of this Lease to the contrary,
\nif at any time after the date of this Lease a Tenant Delay occurs, then the
\nCommencement Date shall be moved earlier two (2) days for each one (1) day of
\nTenant Delay that delays the substantial completion of the Improvements. In
\naddition, Tenant shall pay any and all costs and expenses incurred by Landlord
\nwhich result from any Tenant Delay, including, without limitation, any and all
\ncosts and expenses attributable to increases in the cost of labor or materials.<\/p>\n
C. Option to Extend.<\/p>\n
(i) Grant of Option. Landlord hereby grants to Tenant one
\n(1) option (the “Option to Extend”) to extend the Term of this Lease, for an
\nadditional term of five (5) years. The option term (the “Extended Term”) shall
\ncommence upon the expiration of the initial Term. The Option to Extend is
\nexpressly conditioned upon Tenant’s not being in default under any term or
\ncondition of this Lease after the expiration of any applicable cure period
\ngranted by this Lease, either at the time the Option to Extend is exercised or
\nat the time the applicable Extended Term would commence. The Option to Extend
\nshall be personal to the Tenant originally named in this Lease, and shall not be
\nassigned, sold, conveyed or otherwise transferred to any other party (including
\nwithout limitation any assignee or sublessee of such Tenant) without the prior
\nwritten consent of Landlord, which consent may be withheld in Landlord’s sole
\ndiscretion; provided, however, that the Option to Extend may be transferred to
\nthe transferee pursuant to a Permitted Transfer without Landlord’s consent. The
\nOption to Extend shall be exercisable only so long as the Lease remains in full
\nforce and effect and shall be an interest appurtenant to and not separable from
\nTenant’s estate under the Lease. Under no circumstances shall Landlord be
\nrequired to pay any real estate commission to any party with respect to Tenant’s
\nexercise of the Option to Extend.<\/p>\n
10
\n 17<\/p>\n
(ii) Manner of Exercise. Tenant may exercise the Option to
\nExtend the Lease only by giving Landlord written notice not less than one (1)
\nyear prior to the expiration of the Term. If Tenant fails to exercise the Option
\nto Extend prior to such 1-year period, then the Option to Extend automatically
\nshall lapse and thereafter Tenant shall have no right to exercise the Option to
\nExtend.<\/p>\n
(iii) Terms and Rent. The initial Monthly Rent for the
\nPremises for the Extended Term shall be equal to the greater of (w) ninety-five
\npercent (95%) of the fair market rent, as determined below, for the Premises as
\nof the commencement of the Extended Term, or (x) an amount equal to the Monthly
\nRent payable during the fourteenth (14th) Lease Year of the initial Term,
\nmultiplied by the greater of (A) the lesser of (I) a fraction, the numerator of
\nwhich is the Index published most recently before the first day of the
\nfourteenth (14th) Lease Year of the initial Term, and the denominator of which
\nis the Index published most recently before the first day of the thirteenth
\n(13th) Lease Year of the initial Term, or (II) one hundred sixteen percent
\n(116%), or (B) one hundred seven percent (107%). During the Extended Term the
\nMonthly Rent shall continue to be subject to adjustment in accordance with the
\nprovisions of Paragraph 5.B below. All other terms and conditions of the Lease,
\nas amended from time to time by the parties in accordance with the provisions of
\nthe Lease, shall remain in full force and effect and shall apply during the
\nExtended Term; provided, however, that neither the Option to Extend nor
\nLandlord’s obligations under the Work Letter shall be of any force or effect
\nduring the Extended Term.<\/p>\n
(iv) Determination of Rent. For the purposes of
\ncalculating the Monthly Rent for the Extended Term, the fair market rent shall
\nbe equal to the net effective rent per rentable square foot being charged for
\nleases executed within the preceding twelve (12) months for comparable space (in
\nbuildings with 2 – 4 stories) at either the Project (if any), or if there are
\nnone, for comparable space (in buildings with 2 – 4 stories) in office and
\nresearch and development complexes located in the Redwood Shores area or the
\nMenlo Oaks Business Park (located in Menlo Park, California), with terms
\ncomparable to the terms contained in this Lease, taking into consideration
\nrelevant factors such as the presence or absence of tenant improvement
\ncontributions by the lessor, and the fact that the Monthly Rent during the
\nExtended Term shall be subject to adjustment under Paragraph 5.B. Any value
\nadded to the Premises by the Tenant Improvements and any Alterations paid for by
\nTenant shall not be considered or included in the determination of the fair
\nmarket rent. The fair market rent shall be determined by mutual agreement of the
\nparties or, if the parties are unable to agree within thirty (30) days after
\nTenant’s exercise of an Option, then fair market rent shall be determined
\npursuant to the procedure set forth in Paragraphs 4.C.(v) and 4.C.(vi).<\/p>\n
(v) Landlord’s Initial Determination. If the parties are
\nunable mutually to agree upon the fair market rent pursuant to Paragraph
\n4.C.(iv), then the fair market rent initially shall be determined by Landlord by
\nwritten notice (“Landlord’s Notice”) given to Tenant promptly following the
\nexpiration of the 30-day period set forth in Paragraph 4.C.(iv). If Tenant
\ndisputes the amount of fair market rent set forth in Landlord’s Notice, then,
\nwithin thirty (30) days after the date of Landlord’s Notice, Tenant shall send
\nLandlord a written notice (“Tenant’s Notice”) which specifically (a) disputes
\nthe fair market rent set forth in Landlord’s Notice, (b) demands arbitration
\npursuant to Paragraph 4.C.(vi), and (c) states the name and address of the
\nperson who shall act as arbitrator on Tenant’s behalf. Tenant’s Notice shall be
\ndeemed defective,<\/p>\n
11
\n 18
\nand not given to Landlord, if it fails strictly to comply with the Requirements
\nand time period set forth above. If Tenant does not send Tenant’s Notice within
\nthirty (30) days after the date of Landlord’s Notice, or if Tenant’s Notice
\nfails to contain all of the required information, then the Monthly Rent for the
\nExtended Term shall equal ninety-five percent (95%) of the fair market rent
\nspecified in Landlord’s Notice. If Tenant sends Tenant’s Notice in the proper
\nform within thirty (30) days after the date of Landlord’s Notice, then the
\nMonthly Rent for the Extended Term shall be determined by arbitration pursuant
\nto Paragraph 4.C(vi) below. If the arbitration is not concluded prior to the
\ncommencement of the Extended Term, then Tenant shall pay Monthly Rent equal to
\none hundred twenty-five percent (125%) of the Monthly Rent payable immediately
\nprior to the commencement of the Extended Term. If the fair market rent
\ndetermined by arbitration differs from that paid by Tenant pending the results
\nof arbitration, then any adjustment required to adjust the amount previously
\npaid shall be made by payment by the appropriate party within ten (10) days
\nafter the determination of fair market rent.<\/p>\n
(vi) Arbitration. The arbitration shall be conducted in
\nthe City of San Francisco in accordance with the then prevailing rules of the
\nAmerican Arbitration Association (or its successor) for the arbitration of
\ncommercial disputes, except that the procedures mandated by such rules shall be
\nmodified as follows:<\/p>\n
(a) Each arbitrator must be a real estate appraiser
\nwith at least five (5) years of full-time commercial appraisal experience who is
\nfamiliar with the fair market rent of office and research and development
\ncomplexes located in the vicinity of the Premises. Within ten (10) business days
\nafter receipt of Tenant’s Notice, Landlord shall notify Tenant of the name and
\naddress of the person designated by Landlord to act as arbitrator on Landlord’s
\nbehalf.<\/p>\n
(b) The two arbitrators chosen pursuant to
\nParagraph 4.C.(vi)(a) shall meet within ten (10) business days after the second
\narbitrator is appointed and shall either agree upon the fair market rent or
\nappoint a third arbitrator possessing the qualifications set forth in Paragraph
\n4.C.(vi)(a). If the two arbitrators agree upon the fair market rent within such
\nten (10) business day period, the Monthly Rent for the Extended Term shall equal
\nninety-five percent (95%) of such fair market rent. If the two arbitrators are
\nunable to agree upon the fair market rent and are unable to agree upon the third
\narbitrator within five (5) business days after the expiration of such ten (10)
\nbusiness day period, the third arbitrator shall be selected by the parties
\nthemselves. If the parties do not agree on the third arbitrator within five (5)
\nbusiness days after the expiration of such five (5) business day period, then
\neither party, on behalf of both, may request appointment of the third arbitrator
\nby the Association of South say Brokers. The three arbitrators shall decide the
\ndispute, if it has not been previously resolved, by following the procedures set
\nforth in Paragraph 4.C.(vi)(c). Each party shall pay the fees and expenses of
\nits respective arbitrator and both shall share the fees and expenses of the
\nthird arbitrator. Each party shall pay its own attorneys’ fees and costs of
\nwitnesses.<\/p>\n
(c) The three arbitrators shall determine the fair
\nmarket rent in accordance with the following procedures. Each of Landlord’s
\narbitrator and Tenant’s arbitrator shall state, in writing, his or her
\ndetermination of the fair market rent, supported by the reasons therefor, and
\nshall make counterpart copies for the other arbitrators. All of the arbitrators
\nshall arrange for a simultaneous exchange of the proposed resolutions within ten
\n(10) business days<\/p>\n
12
\n 19
\nafter appointment of the third arbitrator. If any arbitrator fails to deliver
\nhis or her own determination to the other arbitrators within such ten (10)
\nbusiness day period, then the fair market rent shall equal the average of the
\nresolutions submitted by the other arbitrators. If all three (3) arbitrators
\ndeliver their determinations to the other arbitrators within such ten (10)
\nbusiness day period, then the two (2) closest determinations of the arbitrators
\nshall be averaged, and the resulting quotient shall be the fair market rent, and
\nthe Monthly Rent for the Extended Term shall equal ninety-five percent (95%) of
\nsuch fair market rent; provided, however, that if the determination of one (1)
\nof the arbitrators (the “Average Determination”) is equal to the average of the
\ndeterminations of the other two (2) arbitrators, then the Average Determination
\nshall be the fair market rent. However, the arbitrators shall not attempt to
\nreach a mutual agreement of the fair market rent; each arbitrator shall
\nindependently arrive at his or her proposed resolution.<\/p>\n
(d) The arbitrators shall have the right to consult
\nexperts and competent authorities for factual information or evidence pertaining
\nto a determination of fair market rent, but any such consultation shall be made
\nin the presence of both parties with full right on their part to cross-examine.
\nThe arbitrators shall render the decision and award in writing with counterpart
\ncopies to each party. The arbitrators shall have no power to modify the
\nprovisions of this Lease. In the event of a failure, refusal or inability of any
\narbitrator to act, his or her successor shall be appointed by him or her, but in
\nthe case of the third arbitrator, his or her successor shall be appointed in the
\nsame manner as that set forth herein with respect to the appointment of the
\noriginal third arbitrator.<\/p>\n
5. Rent and Additional Charges.<\/p>\n
A. Monthly Rent. Tenant shall pay to Landlord, in lawful money of
\nthe United States, Monthly Rent as follows: commencing on the Commencement Date,
\nand continuing through the balance of the Term (subject to adjustment pursuant
\nto Paragraph 5.B), the initial Monthly Rent shall equal that amount calculated
\npursuant to the Build to Suit Agreement as the Monthly Rent for the Building.
\nTenant shall have no obligation to pay Monthly Rent before the Commencement
\nDate. Until the Monthly Rent is established under the Build to Suit Agreement,
\nthe Monthly Rent shall be deemed to equal that amount designated from time to
\ntime in writing by Landlord to Tenant as Landlord’s reasonable estimate of the
\namount of Monthly Rent that will be established under the Build to Suit
\nAgreement upon completion of the construction of the Building (collectively, the
\n“Estimated Monthly Rent”), based upon Landlord’s estimate of the Development
\nCosts (as defined in the Build to Suit Agreement) that have been or will be
\nincurred in constructing the Building. Upon the final establishment of the
\ninitial Monthly Rent in accordance with the Build to Suit Agreement, Landlord
\nand Tenant shall each execute an addendum to this Lease setting forth the
\ninitial Monthly Rent under this Lease. If as of the date the initial Monthly
\nRent under this Lease is established (the “Rent Establishment Date”), the
\naggregate amount of Estimated Monthly Rent previously paid by Tenant exceeds the
\naggregate amount of Monthly Rent payable under this Lease from the Commencement
\nDate to the Rent Establishment Date, then Landlord may elect, in its sole
\ndiscretion, to either refund such excess to Tenant within thirty (30) days after
\nthe Rent Establishment Date, or offset such overpayment against Rent due or
\nremaining due under this Lease. If as of the Rent Establishment Date the
\naggregate amount of Estimated Monthly Rent previously paid by Tenant is less
\nthan<\/p>\n
13
\n 20
\nthe aggregate amount of Monthly Rent payable under this Lease from the
\nCommencement Date to the Rent Establishment Date, then Tenant shall pay the
\ndeficiency to Landlord within thirty (30) days after the Rent Establishment
\nDate.<\/p>\n
Monthly Rent shall be paid in advance, on the first day of each
\ncalendar month during the Term, without abatement, deduction, claim, offset,
\nprior notice or demand. Tenant shall pay to Landlord an amount equal to one (1)
\nmonth’s advance payment of Monthly Rent for the Premises upon the execution of
\nthis Lease by Landlord and Tenant. Additionally, Tenant shall pay, as and with
\nthe Monthly Rent, the management fee described in Paragraph 5.C., Tenant’s
\nPercentage Share of Common Area Maintenance Costs pursuant to Paragraph 5.D, the
\nReal Property Taxes and Impositions payable by Tenant pursuant to Paragraph 15,
\nand the monthly cost of insurance premiums required pursuant to Paragraph 21.C.<\/p>\n
B. Adjustments to Monthly Rent. The Monthly Rent may be adjusted
\nat any time during the Term in accordance with the provisions of Paragraph 2.1.1
\nof Exhibit D to the Build to Suit Agreement. In addition, the Monthly Rent shall
\nbe increased, but not decreased, as of the first day of the month which is
\ntwenty-five (25) months from the Commencement Date and every twenty-four (24)
\nmonths thereafter during the Term (including without limitation the Extended
\nTerm) (each, an “Adjustment Date”) by the greater of (i) the percentage increase
\nin the Index from the previous Adjustment Date (or, for the first Adjustment
\nDate, from the Commencement Date), up to a maximum of sixteen percent (16%), or
\n(ii) seven percent (7%). If, however, the last Adjustment Date occurs at any
\ntime after the first day of a calendar month, the first Adjustment Date shall be
\nthe first day of the immediately following calendar month. On each Adjustment
\nDate, the total aggregate amount of Monthly Rent then in effect shall be
\nmultiplied by the greater of (x) the lesser of (A) a fraction, the numerator of
\nwhich is the Index published most recently before the applicable Adjustment
\nDate, and the denominator of which is the Index published most recently before
\nthe prior Adjustment Date (or, in the case of the first Adjustment Date, the
\nIndex published most recently before the Commencement Date), or (B) one hundred
\nsixteen percent (116%), or (y) one hundred seven percent (107%); and the
\ncorresponding product shall be the Monthly Rent in effect until the next
\nAdjustment Date. In no event shall the Monthly Rent in effect after an
\nAdjustment Date be less than one hundred seven percent (107%) of the Monthly
\nRent in effect immediately prior to such Adjustment Date. If no Index is
\npublished for either of the months set forth above, the Index for the next
\npreceding month shall be used.<\/p>\n
C. Management Fee. Tenant shall pay to Landlord monthly, as
\nAdditional Rent, a management fee equal to three and one-half percent (3.5%) of
\nthe then Monthly Rent.<\/p>\n
D. Common Area Maintenance Costs.<\/p>\n
(i) Estimated Payments. Commencing on the Commencement
\nDate and continuing throughout the entire Term, Tenant shall pay Tenant’s
\nPercentage Share of all Common Area Maintenance Costs paid or payable by
\nLandlord in each year; provided, however, that Tenant shall pay one hundred
\npercent (100%) of those Common Area Maintenance Costs arising from Landlord’s
\nperformance of its obligations under Paragraphs 17.A and Tenant’s obligations
\nunder Paragraph 17.D. Before commencement of the Term and during December of<\/p>\n
14
\n 21
\neach calendar year or as soon thereafter as practicable, Landlord shall give
\nTenant notice of its estimate of amounts payable under this Paragraph 5.D.(i)
\nfor the ensuing calendar year. Such notice shall show in reasonable detail the
\nbasis on which the estimate was determined. On or before the first day of each
\nmonth during the ensuing calendar year, Tenant shall pay to Landlord one-twelfth
\n(1\/12th) of such estimated amounts, provided that if such notice is not given in
\nDecember, Tenant shall continue to pay on the basis of the prior year’s estimate
\nuntil the month after such notice is given. If at any time or times it appears
\nto Landlord, in its reasonable judgment, that the amounts payable under this
\nParagraph 5.D.(i) for the current calendar year will vary from its then-current
\nestimate by more than five percent (5%), Landlord may, in its sole discretion,
\nby notice to Tenant, showing in reasonable detail the basis for such variance,
\nrevise its estimate for such year, in which case subsequent payments by Tenant
\nfor such year shall be based upon such revised estimate. Landlord’s election not
\nto give the notice described in the foregoing sentence shall not affect
\nLandlord’s ability to charge Tenant for, nor Tenant’s liability to pay for, any
\nshortfall in the estimated payments for such calendar year previously made by
\nTenant, as set forth in Paragraph 5.D.(ii).<\/p>\n
(ii) Adjustment. Within one hundred twenty (120) days
\nafter the close of each calendar year or as soon after such 120-day period as
\nreasonably practicable, Landlord shall deliver to Tenant a reasonably detailed
\nstatement of Common Area Maintenance Costs for such calendar year, certified by
\nLandlord or its property manager, subject to Tenant’s right to audit as
\nhereinafter provided. At that time, Landlord shall also deliver to Tenant a
\nstatement, certified as correct by Landlord, of the adjustments to be made
\npursuant to Paragraph 5.D.(i) above. If Landlord’s statement shows that Tenant
\nowes an amount that is less than the estimated payments for such calendar year
\npreviously made by Tenant, Landlord may elect, in its sole discretion, to either
\nrefund such excess to Tenant within thirty (30) days after delivery of the
\nstatement, or offset such overpayment against Rent due or remaining due under
\nthis Lease; provided that if no Rent remains due, Landlord shall refund such
\nexcess to Tenant within thirty (30) days after delivery of the statement. If
\nsuch statement shows that Tenant owes an amount that is more than the estimated
\npayments for such calendar year previously made by Tenant, Tenant shall pay the
\ndeficiency to Landlord within thirty (30) days after delivery of the statement.<\/p>\n
(iii) Last Year. If this Lease shall terminate on a day
\nother than the last day of a calendar year, the adjustment in Rent applicable to
\nthe calendar year in which such termination shall occur shall be prorated on the
\nbasis which the number of days from the commencement of such calendar year to
\nand including such termination date bears to three hundred sixty (360). The
\ntermination of this Lease shall not affect the obligations of Landlord and
\nTenant pursuant to Paragraph 5.D.(ii) to be performed after such termination.<\/p>\n
(iv) Audit. Within one hundred eighty (180) days after
\nreceipt of Landlord’s statement of Common Area Maintenance Costs as provided in
\nParagraph 5.D.(ii), Tenant or its designee, on not less than five (5) days’
\nprior written notice to Landlord, shall have the right to, at Tenant’s sole cost
\nand expense, audit, examine and copy Landlord’s books and records with respect
\nto the Common Area Maintenance Costs for the calendar year pertaining to the
\nyear for which the Landlord’s statement pertains. Landlord shall cooperate with
\nTenant in any such examination of its books and records.<\/p>\n
15
\n 22<\/p>\n
E. Additional Rent. All monies required to be paid by Tenant
\nunder this Lease, including, without limitation, the Tenant Improvement costs
\npursuant to Exhibit B, the management fee described in Paragraph 5.D, Tenant’s
\nPercentage Share of Common Area Maintenance Costs pursuant to Paragraph 5.D,
\nReal Property Taxes and Impositions pursuant to Paragraph 15, and the monthly
\ncost of insurance premiums required pursuant to Paragraph 21.C, shall be deemed
\nAdditional Rent.<\/p>\n
F. Prorations. If the Commencement Date or the Second Half
\nCommencement Date is not the first (1st) day of a month, or if the termination
\ndate of this Lease is not the last day of a month, a prorated installment of
\nMonthly Rent based on a 30-day month shall be paid for the fractional month
\nduring which such date occurs or the Lease terminates.<\/p>\n
G. Interest. Any amount of Rent or other charges provided for
\nunder this Lease due and payable to Landlord which is not paid when due shall
\nbear interest at the Interest Rate from the date that is (i) five (5) days after
\nthe date such Rent is due until such Rent is paid, or (ii) ten (10) days after
\nTenant receives written notice from Landlord that any other charge provided for
\nunder this Lease (other than Rent) is due and payable, until such other charge
\nis paid.<\/p>\n
6. Late Payment Charges.<\/p>\n
Tenant acknowledges that late payment by Tenant to Landlord of
\nRent and other charges provided for under this Lease will cause Landlord to
\nincur costs not contemplated by this Lease, the exact amount of such costs being
\nextremely difficult or impracticable to fix. Therefore, if any installment of
\nRent or any other charge due from Tenant (excluding late release of the
\nSet-Aside Funds pursuant to the Work Letter) is not received by Landlord within
\nthree (3) days after the date such Rent or other charge is due, Tenant shall pay
\nto Landlord an additional sum equal to seven percent (7%) of the amount overdue
\nas a late charge for every month or portion thereof that the Rent or other
\ncharges remain unpaid. The parties agree that this late charge represents a fair
\nand reasonable estimate of the costs that Landlord will incur by reason of the
\nlate payment by Tenant.<\/p>\n
Initials:<\/p>\n
———————— ————————
\nLandlord Tenant<\/p>\n
7. Security Deposit.<\/p>\n
A. Deposit Required. Tenant shall deposit with Landlord upon the
\nexecution of this Lease by Landlord and Tenant, an amount equal to three (3)
\npayments of the Estimated Monthly Rent under this Lease, as the “Security
\nDeposit” for the full and faithful performance of every provision of this Lease
\nto be performed by Tenant. Effective as of the Rent Establishment Date, the
\nSecurity Deposit shall be adjusted (if necessary) to equal three (3) payments of
\nthe initial Monthly Rent under this Lease. If as of the Rent Establishment Date
\nthe Estimated<\/p>\n
16
\n 23<\/p>\n
Monthly Rent exceeds the initial Monthly Rent as determined under Paragraph 5.A
\nabove, then Landlord shall refund to Tenant, within thirty (30) days after the
\nRent Establishment Date, any overpayment of the Security Deposit. If as of the
\nRent Establishment Date the Estimated Monthly Rent is less than the initial
\nMonthly Rent as determined under Paragraph 5.A above, then Tenant shall increase
\nthe Security Deposit by paying the deficiency in the Security Deposit to
\nLandlord within thirty (30) days after the Rent Establishment Date. For the
\npurposes of this Lease, the term “Security Deposit” shall include the initial
\nsum deposited by Tenant as the Security Deposit and any other sum deposited by
\nTenant as the Security Deposit and any other sum deposited by Tenant towards the
\nSecurity Deposit pursuant to this Paragraph 7.A. At Tenant’s option, the
\nSecurity Deposit may be in the form of an irrevocable standby letter of credit
\n(“L-C”). Landlord shall not be required to segregate the Security Deposit from
\nLandlord’s general funds; Landlord’s obligations with respect to the Security
\nDeposit shall be those of a debtor and not a trustee, and Tenant shall not be
\nentitled to any interest on the Security Deposit. Invocation by Landlord of its
\nrights hereunder shall not constitute a waiver of nor relieve Tenant from any
\nliability or obligation for any default by Tenant under this Lease.<\/p>\n
(i) Reduction or Replacement. So long as Tenant has not
\ncommitted any default under this Lease, then if Tenant can demonstrate to the
\nreasonable satisfaction of Landlord that Tenant has maintained a Fixed Charge
\nRatio of at least 1.25 to 1 for a period of four (4) consecutive fiscal years at
\nany time after the Commencement Date, then Tenant may elect to reduce the
\nSecurity Deposit to a sum equal to the then-current amount of Monthly Rent. For
\nthe purposes of this Paragraph 7, in order for Tenant to demonstrate that it has
\nmaintained the required Fixed Charge Ratio for the fiscal year or years in
\nquestion, Tenant must at a minimum deliver to Landlord an audited financial
\nstatement of Tenant, showing that Tenant has maintained the required Fixed
\nCharge Ratio for the fiscal year or years in question.<\/p>\n
If Tenant is entitled to and does elect to reduce the amount of
\nthe Security Deposit pursuant to this Paragraph 7.A.(i), and Tenant delivers to
\nLandlord written notice of its election to so reduce the amount of the Security
\nDeposit and the financial statement described in the foregoing grammatical
\nparagraph, then either (x) if the Security Deposit is in the form of cash,
\nLandlord shall pay to Tenant the excess amount of the Security Deposit, without
\ninterest, within thirty (30) days after Landlord’s receipt of such notice and
\nstatement; or (y) if the Security Deposit is in the form of an L-C, then Tenant
\nmay, not less than ten (10) days after Landlord’s receipt of such notice and
\nstatement, replace the L-C with an L-C in an amount equal to the reduced amount
\nof the Security Deposit.<\/p>\n
(ii) Consequences of Default. If Tenant defaults with
\nrespect to any provision of this Lease, after the expiration of any applicable
\ncure or grace periods expressly provided for in this Lease, Landlord may apply
\nall or any part of the Security Deposit for the payment of any Rent or other sum
\nin default, the repair of such damage to the Premises or the payment of any
\nother amount which Landlord may spend or become obligated to spend by reason of
\nTenant’s default or to compensate Landlord for any other loss or damage which
\nLandlord may suffer by reason of Tenant’s default to the full extent permitted
\nby law. If any portion of a cash Security Deposit is so applied, or any portion
\nof an L-C posted as the Security Deposit, if applicable, is drawn upon, by
\nLandlord for such purposes, Tenant shall either, within ten (10) days after
\nwritten demand therefor, deposit cash with Landlord in an amount sufficient to
\nrestore<\/p>\n
17
\n 24
\nthe Security Deposit to its original amount or deposit a replacement L-C with
\nLandlord in the amount of the original L-C. If Tenant is not otherwise in
\ndefault, the Security Deposit or any balance thereof shall be returned to Tenant
\nwithin thirty (30) days of termination of the Lease.<\/p>\n
(ii) Form of L-C. If at any time Tenant elects to deposit
\nan L-C as the Security Deposit, the L-C shall be issued by a bank reasonably
\nacceptable to Landlord, shall be issued for a term of at least twelve (12)
\nmonths and shall be in a form and with such content reasonably acceptable to
\nLandlord. Tenant shall either replace the expiring L-C with an L-C in an amount
\nequal to the original L-C or renew the expiring L-C, in any event no later than
\nthirty (30) days prior to the expiration of the term of the L-C then in effect.
\nIf Tenant fails to deposit a replacement L-C or renew the expiring L-C, Landlord
\nshall have the right to draw upon the expiring L-C for the full amount thereof
\nand hold the same as the Security Deposit; provided, however, that if Tenant
\nprovides a replacement L-C that meets the requirements of this Paragraph, then
\nLandlord shall return to Tenant promptly in cash that amount of the L-C that had
\nbeen drawn upon by Landlord. Drawing upon the L-C shall be conditioned upon the
\npresentation to the issuer of the L-C of a certified statement executed by a
\ngeneral partner of Landlord that (i) Tenant is in default under the Lease and
\nLandlord is exercising its right to draw upon so much of the L-C as is necessary
\nto cure Tenant’s default, or (ii) Tenant has not renewed or replaced an expiring
\nL-C as required by this Lease and Landlord is authorized to draw upon the L-C
\nprior to its expiration. The L-C shall not be mortgaged, assigned or encumbered
\nin any manner whatsoever by Tenant without the prior written consent of
\nLandlord. The use, application or retention of the L-C, or any portion thereof,
\nby Landlord shall not prevent Landlord from exercising any other right or remedy
\nprovided by this Lease or by law, it being intended that Landlord shall not
\nfirst be required to proceed against the L-C, and such use, application or
\nretention shall not operate as a limitation on any recovery to which Landlord
\nmay otherwise be entitled.<\/p>\n
8. Holding Over.<\/p>\n
If Tenant remains in possession of all or any part of the
\nPremises after the expiration of the Term, with the express or implied consent
\nof Landlord, such tenancy shall be at sufferance only, and shall not constitute
\na renewal or extension for any further term. If Tenant remains in possession
\nafter the expiration of the Term, either with or without Landlord’s consent,
\nRent shall be payable at a rental equal to one hundred thirty percent (130%) of
\nthe Monthly Rent payable during the last month of the Term (which rental shall
\nbe due and payable at the same time as Monthly Rent is due under this Lease),
\nand any other sums due under this Lease shall be payable in the amount and at
\nthe times specified in this Lease. Such holdover tenancy shall be subject to
\nevery other term, condition, and covenant contained herein; provided, however,
\nthat neither the Holdover Option (as defined below) nor Landlord’s obligations
\nunder the Work Letter shall be of any force or effect during any such holdover
\ntenancy.<\/p>\n
9. Tenant Improvements.<\/p>\n
Landlord agrees to construct the Tenant Improvements pursuant to
\nthe terms of Exhibit B.<\/p>\n
18
\n 25<\/p>\n
10. Condition of Premises.<\/p>\n
A. Capital Improvements. Landlord shall complete the Capital
\nImprovements in accordance with the terms of Exhibit B; provided, however, that
\nthe construction of the shell and core of the Building shall be governed by the
\nterms of the Build to Suit Agreement. Except for its obligation to perform the
\nCapital Improvements and the Tenant Improvements as set forth in this Lease and
\nthe Work Letter, Landlord shall have no obligation whatsoever to do any work or
\nperform any improvements whatsoever to any portion of the Premises or the
\nBuilding.<\/p>\n
B. Acceptance of Premises. Within ten (10) days after completion
\nof the Tenant Improvements Tenant shall conduct a walk-through inspection of the
\nPremises with Landlord and complete a punch list of items needing additional
\nwork. Other than the items specified in the punch list, if any, and subject to
\nLandlord’s representations and warranties described below, by taking possession
\nof the Premises, Tenant shall be deemed to have accepted the Premises in good,
\nclean and completed condition and repair, subject to all applicable laws, codes
\nand ordinances. Any damage to the Premises caused by Tenant’s move-in shall be
\nrepaired or corrected by Tenant, at its sole cost and expense, which repair or
\ncorrective work shall not be paid for out of the Tenant Improvements Allowance.
\nTenant acknowledges that neither Landlord nor Landlord’s Agents have made any
\nrepresentations or warranties as to the suitability or fitness of the Premises
\nfor the conduct of Tenant’s business or for any other purpose, nor has Landlord
\nor Landlord’s Agents agreed to undertake any Alterations or construct any
\nImprovements to the Premises except as expressly provided in this Lease. If
\nTenant fails to submit a punch-list to Landlord within such 10-day period, it
\nshall be deemed that there are no Improvement items needing additional work or
\nrepair. Landlord’s contractor shall complete all reasonable punch-list items
\nwithin thirty (30) days after the walk-through inspection or as soon as
\npracticable thereafter. Upon completion of such punch-list items, Tenant shall
\napprove such completed items in writing to Landlord. If Tenant fails to approve
\nsuch items within fourteen (14) days of completion, such items shall be deemed
\napproved by Tenant.<\/p>\n
11. Use of the Premises and Common Area.<\/p>\n
A. Tenant’s Use. Tenant shall use the Premises only for general
\noffice, research and development, marketing, sales, and storage related to such
\nactivities, and any other legal use consistent with any CC&Rs. Tenant shall not
\nuse the Premises or suffer or permit anything to be done in or about the
\nPremises which will in any way conflict with any law, statute, zoning
\nrestriction, ordinance or governmental law, rule, regulation or requirement of
\npublic authorities now in force or which may hereafter be in force, relating to
\nor affecting the condition, use or occupancy of the Premises. Tenant shall not
\ncommit any public or private nuisance or any other act or thing which might or
\nwould disturb the quiet enjoyment of any other tenant of Landlord or any
\noccupant of nearby property. Tenant shall place no loads upon the floors, walls
\nor ceilings in excess of the maximum designed load determined by a licensed
\nstructural engineer or which endanger the structure; nor place any harmful
\nliquids in the drainage systems; nor dump or store waste materials or refuse or
\nallow waste materials or refuse to remain outside the Building proper, except in
\nthe enclosed trash areas provided. Tenant shall not store or permit to be stored
\nor otherwise placed any other material of any nature whatsoever outside the
\nBuilding, except on a temporary basis.<\/p>\n
19
\n 26<\/p>\n
B. Hazardous Materials.<\/p>\n
(i) Hazardous Materials Defined. As used herein, the term
\n“Hazardous Materials” shall mean any wastes, materials or substances (whether in
\nthe form of liquids, solids or gases, and whether or not air-borne), which are
\nor are deemed to be (a) pollutants or contaminants, or which are or are deemed
\nto be hazardous, toxic, ignitable, reactive, corrosive, dangerous, harmful or
\ninjurious, or which present a risk to public health or to the environment, or
\nwhich are or may become regulated by or under the authority of any applicable
\nlocal, state or federal laws, judgments, ordinances, orders, rules, regulations,
\ncodes or other governmental restrictions, guidelines or requirements, any
\namendments or successor(s) thereto, replacements thereof or publications
\npromulgated pursuant thereto, including, without limitation, any such items or
\nsubstances which are or may become regulated by any of the Environmental Laws
\n(as hereinafter defined); (b) listed as a chemical known to the State of
\nCalifornia to cause cancer or reproductive toxicity pursuant to Section 25249.8
\nof the California Health and Safety Code, Division 20, Chapter 6.6 (Safe
\nDrinking Water and Toxic Enforcement Act of 1986); or (c) a pesticide,
\npetroleum, including crude oil or any fraction thereof, asbestos or any
\nasbestos-containing material, a polychlorinated biphenyl, radioactive material,
\nor urea formaldehyde.<\/p>\n
(ii) Environmental Laws Defined. In addition to the laws
\nreferred to in Paragraph 11.B.(i) above, the term “Environmental Laws” shall be
\ndeemed to include, without limitation, 33 U.S.C. Section 1251 et seq., 42 U.S.C.
\nSection 6901 et seq., 42 U.S.C. Section 7401 et seq., 42 U.S.C. Section 9601 et
\nseq., and California Health and Safety Code Section 25100 et seq., and 25300 et
\nseq., California Water Code, Section 13020 et seq., or any successor(s) thereto,
\nall local, state and federal laws, judgments, ordinances, orders, rules,
\nregulations, codes and other governmental restrictions, guidelines and
\nrequirements, any amendments and successors thereto, replacements thereof and
\npublications promulgated pursuant thereto, which deal with or otherwise in any
\nmanner relate to, air or water quality, air emissions, soil or ground conditions
\nor other environmental matters of any kind.<\/p>\n
(iii) Use of Hazardous Materials. Tenant agrees that
\nduring the Term of this Lease, Tenant shall not use, or permit the use of, nor
\nstore, generate, treat, manufacture or dispose of Hazardous Materials on, from
\nor under the Premises (individually and collectively, “Hazardous Use”) except to
\nthe extent that, and in accordance with such conditions as, Landlord may have
\npreviously approved in writing in its sole and absolute discretion.
\nNotwithstanding the foregoing, Tenant shall be entitled to use and store only
\nthose Hazardous Materials which are (a) set forth in a list prepared by Tenant
\nand approved in writing by Landlord, which shall be deemed given with respect to
\nthe Approved Hazardous Materials (hereinafter defined), (b) necessary for
\nTenant’s business, but then only in the amounts and for the purposes previously
\ndisclosed in writing to and approved in writing by Landlord, and (c) in full
\ncompliance with Environmental Laws, and all judicial and administrative
\ndecisions pertaining thereto. All Hazardous Materials approved in writing by
\nLandlord as provided in the preceding sentence shall collectively be referred to
\nas the “Approved Hazardous Materials”. Within thirty (30) days after request by
\nLandlord, Tenant shall deliver to Landlord a list of the Approved Hazardous
\nMaterials. Tenant shall not be entitled to install any tanks under, on or about
\nthe Premises for the storage of Hazardous Materials without the express written
\nconsent of Landlord, which may be given or withheld in Landlord’s sole
\ndiscretion. For the purposes of this Paragraph 11.B.(iii), the<\/p>\n
20
\n 27
\nterm Hazardous Use shall include Hazardous Use(s) on, from or under the Premises
\nby Tenant, any Subtenant occupying all or any portion of the Premises during the
\nTerm, or any of their directors, officers, employees, shareholders, partners,
\ninvitees, agents, contractors or occupants (collectively, “Tenants Parties”),
\nwhether known or unknown to Tenant, occurring during the Term of this Lease. The
\nterm “Tenant’s Parties” shall not include any tenants of the Project other than
\nTenant, except that the term “Tenant’s Parties” shall include any Subtenant
\noccupying all or any portion of the Premises during the Term.<\/p>\n
(iv) Hazardous Materials Report; When Required. Tenant
\nshall submit to Landlord a written report with respect to Hazardous Materials
\n(“Report”) in the form prescribed in Paragraph 11.B.(v) below on the following
\ndates:<\/p>\n
(a) At any time within ten (10) days after written
\nrequest by Landlord, and<\/p>\n
(b) At any time when there has been a violation of
\nany Environmental Law, or in connection with any proposed request for Landlord’s
\nconsent to any change in the list of Approved Hazardous Materials or for an
\nincrease in the intensity of usage or storage of such Approved Hazardous
\nMaterials.<\/p>\n
(v) Hazardous Materials Report; Contents. The Report shall
\ncontain, without limitation, the following information:<\/p>\n
(a) Whether on the date of the Report and (if
\napplicable) during the period since the last Report there has been any Hazardous
\nUse on, from or under the Premises, other than the use of Approved Hazardous
\nMaterials.<\/p>\n
(b) If there was such Hazardous Use, the exact
\nidentity of the Hazardous Materials (other than the Approved Hazardous
\nMaterials), the dates upon which such materials were brought upon the Premises,
\nthe dates upon which such Hazardous Materials were removed therefrom, and the
\nquantity, location, use and purpose thereof.<\/p>\n
(c) If there was such Hazardous Use, any
\ngovernmental permits maintained by Tenant with respect to such Hazardous
\nMaterials, the issuing agency, original date of issue, renewal dates (if any)
\nand expiration date. Copies of any such permits and applications therefor shall
\nbe attached.<\/p>\n
(d) If there was such Hazardous Use, any
\ngovernmental reporting or inspection requirements with respect to such Hazardous
\nMaterials, the governmental agency to which reports are made and\/or which
\nconducts inspections, and the dates of all such reports and\/or inspections (if
\napplicable) since the last Report. Copies of any such Reports shall be attached.<\/p>\n
(e) If there was such Hazardous Use, identification
\nof any operation or business plan prepared for any government agency with
\nrespect to Hazardous Use.<\/p>\n
21
\n 28
\n (f) Any liability insurance carried by Tenant with
\nrespect to Hazardous Materials, if any, the insurer, policy number, date of
\nissue, coverage amounts, and date of expiration. Copies of any such policies or
\ncertificates of coverage shall be attached.<\/p>\n
(g) Any notices of violation of Environmental Laws,
\nwritten or oral, received by Tenant from any governmental agency since the last
\nReport, the date, name of agency, and description of violation. Copies of any
\nsuch written notices shall be attached.<\/p>\n
(h) Any knowledge, information or communication
\nwhich Tenant has acquired or received relating to (x) any enforcement, cleanup,
\nremoval or other governmental or regulatory action threatened or commenced
\nagainst Tenant or with respect to the Premises pursuant to any Environmental
\nLaws; (y) any claim made or threatened by any person or entity against Tenant or
\nthe Premises on account of any alleged loss or injury claimed to result from any
\nalleged Hazardous Use on or about the Premises; or (z) any report, notice or
\ncomplaint made to or filed with any governmental agency concerning any Hazardous
\nUse on or about the Premises. The Report shall be accompanied by copies of any
\nsuch claim, report, complaint, notice, warning or other communication that is in
\nthe possession of or is available to Tenant.<\/p>\n
(i) Such other pertinent information or documents
\nas are reasonably requested by Landlord in writing.<\/p>\n
(vi) Release of Hazardous Materials; Notification and
\nCleanup.<\/p>\n
(a) At any time during the Term, if Tenant knows or
\nbelieves that any release of any Hazardous Materials has come or will come to be
\nlocated upon, about or beneath the Premises, then Tenant shall immediately,
\neither prior to the release or following the discovery thereof by Tenant, give
\nverbal and follow-up written notice of that condition to Landlord.<\/p>\n
(b) At its sole cost and expense, Tenant covenants
\nto investigate, clean up and otherwise remediate any release of Hazardous
\nMaterials which were caused or created by Tenant or any of Tenant’s Parties.
\nSuch investigation, clean-up and remediation shall be performed only after
\nTenant has obtained, if practicable, Landlord’s written consent, which shall not
\nbe unreasonably withheld; provided, however, that Tenant shall be entitled to
\nrespond immediately to an emergency without first obtaining Landlord’s written
\nconsent. All clean-up and remediation shall be done in compliance with
\nEnvironmental Laws and to the reasonable satisfaction of Landlord.<\/p>\n
(c) Notwithstanding the foregoing, Landlord shall
\nhave the right, but not the obligation, in Landlord’s sole and absolute
\ndiscretion, exercisable by written notice to Tenant, to undertake within or
\noutside the Premises all or any portion of any reasonable investigation,
\nclean-up or remediation with respect to any Hazardous Use of such Hazardous
\nMaterials by Tenant or any of Tenant’s Parties (or, once having undertaken any
\nof such work, to cease same, in which case Tenant shall perform the work), all
\nat Tenant’s sole cost and expense, which shall be paid by Tenant as Additional
\nRent within ten (10) days after receipt of written request therefor by Landlord
\n(and which Landlord may require to be paid prior to commencement<\/p>\n
22
\n 29
\nof any work by Landlord); provided, however, that Tenant’s obligation to pay for
\nsuch work shall only be applicable if Tenant fails to perform its obligations
\nunder this Paragraph 11 (including without limitation the obligations described
\nin Paragraph 11.B.(vi)(b)). No such work by Landlord shall create any liability
\non the part of Landlord to Tenant or any other party in connection with such
\nHazardous Materials by Tenant or any of Tenant’s Parties or constitute an
\nadmission by Landlord of any responsibility with respect to such Hazardous
\nMaterials.<\/p>\n
(d) It is the express intention of the parties
\nhereto that Tenant shall be liable under this Paragraph 11.B.(vi) for any and
\nall conditions covered hereby which were or are caused or created by Tenant or
\nany of Tenant’s Parties, whether occurring prior to, on, or after the
\nCommencement Date. Tenant shall not enter into any settlement agreement, consent
\ndecree or other compromise with respect to any claims relating to any Hazardous
\nMaterials in any way connected to the Premises without first (x) notifying
\nLandlord of Tenant’s intention to do so and affording Landlord the opportunity
\nto participate in any such proceedings, and (y) obtaining Landlord’s written
\nconsent, which shall not be unreasonably withheld.<\/p>\n
(vii) Inspection and Testing by Landlord. Landlord shall
\nhave the right at all times during the Term of this Lease to (a) inspect the
\nPremises, as well as such of Tenant’s books and records pertaining to the
\nPremises and the conduct of Tenant’s business therein, and to (b) conduct tests
\nand investigations to determine whether Tenant is in compliance with the
\nprovisions of this Paragraph 11.B. Except in case of emergency, Landlord shall
\ngive reasonable notice to Tenant before conducting any inspections, tests, or
\ninvestigations in accordance with Paragraph 19, shall provide Tenant with a work
\nplan describing any testing that shall be performed at the Premises, and shall
\nuse reasonable efforts to minimize interference with the conduct of Tenant’s
\nbusiness at the Premises caused by any such inspections, tests, or
\ninvestigations. The cost of all such inspections, tests and investigations shall
\nbe borne by Tenant. Neither any action nor inaction on the part of Landlord
\npursuant to this Paragraph 11.B.(vii) shall be deemed in any way to release
\nTenant from, or in any way modify or alter, Tenant’s responsibilities,
\nobligations, and liabilities incurred pursuant to Paragraph 11.B hereof.<\/p>\n
(viii) Indemnity. Tenant shall indemnify, defend, protect,
\nhold harmless, and, at Landlord’s option (with such attorneys as Landlord may
\napprove in advance and in writing), defend Landlord, Landlord’s Agents, and
\nLandlord’s officers, directors, shareholders, partners, employees, contractors,
\nproperty managers, agents and mortgagees and other lien holders, from and
\nagainst any and all Losses (as defined below), whenever such Losses arise,
\narising from or related to: (a) any violation or alleged violation by Tenant or
\nany of Tenant’s Parties of any of the requirements, ordinances, statutes,
\nregulations or other laws referred to in this Paragraph 11.b, including, without
\nlimitation, the Environmental Laws, whether such violation or alleged violation
\noccurred prior to, on, or after the Commencement Date; (b) any breach of the
\nprovisions of this Paragraph 11.b by Tenant or any of Tenant’s Parties; or (c)
\nany Hazardous Use on, about or from the Premises by Tenant or any of Tenant’s
\nParties of any Hazardous Materials (whether or not approved by Landlord under
\nthis Lease), whether such Hazardous Use occurred prior to, on, or after the
\nCommencement Date. The term “Losses” shall mean all claims, demands, expenses,
\nactions, judgments, damages (whether consequential, direct or indirect, known or
\nunknown, foreseen or unforeseen), penalties, fines, liabilities, losses of every
\nkind and nature (including, without limitation, property damage, diminution in
\nvalue of <\/p>\n
23
\n 30
\nLandlord’s interest in the Premises, damages for the loss of restriction on use
\nof any space or amenity within the Premises, damages arising from any adverse
\nimpact on marketing space in the Premises, sums paid in settlement of claims and
\nany costs and expenses associated with injury, illness or death to or of any
\nperson), suits, administrative proceedings, costs and fees, including, but not
\nlimited to, attorneys’ and consultants’ fees and expenses, and the costs of
\ncleanup, remediation, removal and restoration, that are in any way related to
\nany matter covered by the foregoing indemnity.<\/p>\n
(ix) Survival. The provisions of this Paragraph 11.b shall
\nsurvive the expiration or earlier termination of this Lease.<\/p>\n
C. Special Provisions Relating to The Americans With Disabilities
\nAct of 1990.<\/p>\n
(i) Allocation of Responsibility to Landlord. As between
\nLandlord and Tenant, Landlord shall be responsible that the Common Area owned by
\nLandlord complies with the requirements of Title III of the Americans with
\nDisabilities Act of 1990 (42 U.S.C. 12181, et seq., The Provisions Governing
\nPublic Accommodations and Services Operated by Private Entities), and all
\nregulations promulgated thereunder, and all amendments, revisions or
\nmodifications thereto now or hereafter adopted or in effect in connection
\ntherewith (hereinafter collectively referred to as the “ADA”), and to take such
\nactions and make such alterations and improvements as are necessary for such
\ncompliance; provided, however, that to the extent such requirements arise from
\nthe construction of any Alterations to the Premises made by or on behalf of
\nTenant, then as between Landlord and Tenant, Tenant shall be responsible that
\nthe Common Area complies with the requirements of the ADA, and to take such
\nactions and make such alterations and improvements as are necessary for such
\ncompliance.<\/p>\n
(ii) Allocation of Responsibility to Tenant. Except as
\nexpressly provided in the Work Letter, as between Landlord and Tenant, Tenant,
\nat its sole cost and expense, shall be responsible that the Premises (and all
\nmodifications made by Tenant of access to the Premises from the street), and all
\nalterations and improvements in the Premises (including without limitation the
\nTenant Improvements), and Tenant’s use and occupancy of the Premises, and
\nTenant’s performance of its obligations under this Lease, comply with the
\nrequirements of the ADA, and to take such actions and make such alterations and
\nimprovements as are necessary for such compliance; provided, however, that
\nTenant shall not make any such alterations or improvements except upon
\nLandlord’s prior written consent (which shall not be unreasonably withheld)
\npursuant to the terms and conditions of this Lease. If Tenant fails diligently
\nto take such actions or make such alterations or improvements as are necessary
\nfor such compliance, Landlord may, but shall not be obligated to, take such
\nactions and make such alterations and improvements and may recover all of the
\ncosts and expenses of such actions, alterations and improvements from Tenant as
\nAdditional Rent. Tenant shall be entitled to utilize the Tenant Improvements
\nAllowance to pay for the cost of any improvements required by ADA that are
\ntriggered by the construction of the Tenant Improvements.<\/p>\n
(iii) General. Notwithstanding anything in this Lease
\ncontained to the contrary, no act or omission of either party, including any
\napproval, consent or acceptance by it<\/p>\n
24
\n 31
\nor its agents, employees or other representatives, shall be deemed an agreement,
\nacknowledgment, warranty, or other representation by it that the other party has
\ncomplied with the ADA as provided under Paragraphs 11.C.(i) or 11.c.(ii) or that
\nany action, alteration or improvement by it complies or will comply with the ADA
\nas provided under Paragraphs 11.c.(i) or 11.c.(ii) or constitutes a waiver by it
\nof the other party’s obligations to comply with the ADA under Paragraphs
\n11.c.(i) or 11.c.(ii) of this Lease or otherwise. Any failure of either party to
\ncomply with its obligations of the ADA under Paragraphs 11.c.(i) or 11.c.(ii)
\nshall not relieve such party from any obligations under this Lease or in the
\ncase of Landlord’s failure to comply under Paragraph 11.c.(i), constitute or be
\nconstrued as a constructive or other eviction of Tenant or disturbance of
\nTenant’s use and possession of the Premises.<\/p>\n
D. Use and Maintenance of Common Area. Tenant and its employees
\nand invitees shall have the non-exclusive right to use the Common Area in common
\nwith other persons during the Term of this Lease, subject to the CC&Rs and such
\nreasonable rules and regulations as may from time to time be deemed necessary or
\nadvisable in Landlord’s reasonable discretion for the proper and efficient
\noperation and maintenance of the Common Area. Such rules and regulations may
\ninclude, among other things, the hours during which the Common Area shall be
\nopen for use. Landlord shall maintain and operate the Common Area from time to
\ntime owned by Landlord in good condition, provided that any damage thereto,
\nother than normal wear and tear, occasioned by the act of Tenant or its
\nemployees or invitees shall be paid by Tenant upon demand by Landlord.<\/p>\n
12. Quiet Enjoyment.<\/p>\n
Landlord covenants that Tenant, upon performing the terms,
\nconditions and covenants of this Lease, shall have quiet and peaceful possession
\nof the Premises as against any person claiming the same by, through or under
\nLandlord.<\/p>\n
13. Alterations.<\/p>\n
A. Alteration Rights. After the Commencement Date, Tenant shall
\nnot make or permit any Alterations in, on or about the Premises, except for
\nnonstructural Alterations (which shall not include any modifications to the
\nmechanical or electrical systems of the Building, nor any penetration of the
\nBuilding’s roof) not exceeding Ten Thousand Dollars ($10,000.00) in aggregate
\ncost during any period of twelve (12) consecutive months, without the prior
\nwritten consent of Landlord, and according to plans and specifications approved
\nin writing by Landlord, which consent shall not be unreasonably withheld.
\nNotwithstanding the foregoing Tenant shall not, without the prior written
\nconsent of Landlord, make any:<\/p>\n
(i) Alterations to the exterior of the Building;<\/p>\n
(ii) Alterations to the roof of the Building; and<\/p>\n
(iii) Alterations visible from outside the Building, to
\nwhich Landlord may withhold Landlord’s consent on wholly aesthetic grounds.<\/p>\n
25
\n 32
\n B. Performance of Alterations. All Alterations shall be installed
\nat Tenant’s sole expense, in compliance with all applicable laws, by a licensed
\ncontractor, shall be done in a good and workmanlike manner conforming in quality
\nand design with the Premises existing as of the Commencement Date, and shall not
\ndiminish the value of either the Building or the Premises. All Alterations made
\nby Tenant shall be and become the property of Landlord upon installation and
\nshall not be deemed Tenant’s Personal Property, and Tenant shall not remove any
\nAlterations from the Premises unless Tenant has first obtained Landlord’s
\nwritten consent to such removal. Landlord may require Tenant to remove, at
\nTenant’s expense, any Alterations from the Premises at the expiration or earlier
\ntermination of this Lease; provided, however, that at the time any Alterations
\nare constructed, Tenant shall have the right to request Landlord’s written
\napproval (which shall not be unreasonably withheld or delayed) that Landlord
\nwill not require the removal of such Alterations at the expiration or earlier
\ntermination of this Lease. Notwithstanding Alterations made by it to the
\nPremises. Tenant shall give Landlord written notice of Tenant’s intention to
\nperform work on the Premises at least ten (10) days prior to the commencement of
\nsuch work to enable Landlord to post and record a Notice of Nonresponsibility or
\nother notice deemed proper before the commencement of any such work.<\/p>\n
C. Trade Fixtures. Landlord acknowledges that Tenant may lease
\nfrom or finance with a third party (collectively, a “Trade Fixture Lessor”) all
\nor a portion of Tenant’s Personal Property. Landlord shall duly execute and
\nproperly deliver any waivers or consents which may reasonably be required by any
\nproposed Trade Fixture Lessor in connection with the leasing or financing of
\nsuch Tenant’s Personal Property, so long as such waivers and consents shall
\ninclude the following: (i) the Trade Fixture Lessor shall agree to repair any
\ndamage to the Premises caused by the Trade Fixtures Lessor’s removal of Tenant’s
\nPersonal Property from the Premises, and (ii) Landlord’s waiver and consent
\nshall be of no force or effect after the thirtieth (30th) day following the end
\nof the Term or earlier termination of this Lease.<\/p>\n
14. Surrender of the Premises.<\/p>\n
Upon the expiration or earlier termination of the Term, Tenant
\nshall surrender the Premises to Landlord in its condition existing as of the
\ndate of substantial completion of the Improvements, normal wear and tear and
\nfire or other casualty excepted, with all interior walls repaired if damaged,
\nall broken, marred or nonconforming acoustical ceiling tiles replaced, all
\nwindows washed, the plumbing and electrical systems and lighting in good order
\nand repair, including replacement of any burned out or broken light bulbs or
\nballasts, the HVAC equipment serviced and repaired by a reputable and licensed
\nservice firm, and all floors cleaned, all to the reasonable satisfaction of
\nLandlord. Tenant shall remove from the Premises all of Tenant’s Alterations
\nrequired to be removed pursuant to Paragraph 13, and all Tenant’s Personal
\nProperty, and repair any damage and perform any restoration work caused by such
\nremoval. If Tenant fails to remove such Alterations and Tenant’s Personal
\nProperty, and such failure continues after the expiration or earlier termination
\nof this Lease, Landlord may retain such Alterations and Tenant’s Property and
\nall rights of Tenant with respect to it shall cease, or Landlord may place all
\nor any portion of such Alterations and Tenant’s Property in public storage for
\nTenant’s account. Tenant shall be liable to Landlord for costs of removal of any
\nsuch Alterations and Tenant’s Personal Property and storage and transportation
\ncosts of same, and the cost of repairing and restoring the Premises, together
\nwith interest at the Interest Rate from the date of expenditure by Landlord. If<\/p>\n
26
\n 33<\/p>\n
the Premises are not so surrendered at the expiration or earlier termination of
\nthis Lease, Tenant shall indemnify Landlord and Landlord’s Agents against all
\nloss or liability, including reasonable attorneys’ fees and costs, resulting
\nfrom delay by Tenant in so surrendering the Premises.<\/p>\n
Normal wear and tear, for the purposes of this Lease, shall be
\nconstrued to mean wear and tear caused to the Premises by a natural aging
\nprocess which occurs in spite of prudent application of the best standards for
\nmaintenance, repair and janitorial practices. It is not intended, nor shall it
\nbe construed, to include items of neglected or deferred maintenance which would
\nhave or should have been attended to during the Term of the Lease if the best
\nstandards had been applied to properly maintain and keep the Premises at all
\ntimes in good condition and repair.<\/p>\n
15. Impositions and Real Property Taxes.<\/p>\n
A. Payment by Tenant. Tenant shall pay all Impositions prior to
\ndelinquency. If billed directly, Tenant shall pay such Impositions and
\nconcurrently present to Landlord satisfactory evidence of such payments. If any
\nImpositions are billed to Landlord or included in bills to Landlord for Real
\nProperty Taxes, then Tenant shall pay to Landlord all such amounts within
\nfifteen (15) days after receipt of Landlord’s invoice therefor. If applicable
\nlaw prohibits Tenant from reimbursing Landlord for an Imposition, but Landlord
\nmay lawfully increase the Monthly Rent to account for Landlord’s payment of such
\nImposition, the Monthly Rent payable to Landlord shall be increased so that the
\namount of such increased Monthly Rent, together with any accompanying increases
\nin the Real Property Taxes payable by Tenant with respect to such Imposition,
\nare sufficient to net to Landlord the same return without reimbursement of such
\nImposition as would have been received by Landlord with reimbursement of such
\nImposition. In addition, on or before April 10 and December 10 of each year of
\nthe Term, Tenant shall pay directly to the San Mateo County assessor the Real
\nProperty Taxes for the Premises as set forth on the assessors tax bill for the
\nPremises. If, however, the Premises are not a separate parcel for tax purposes
\nbut constitute a portion of a larger tax parcel or parcels, the Real Property
\nTaxes payable by Tenant under this Lease shall be a percentage of the Real
\nProperty Taxes payable for such parcel or parcels, which percentage shall be
\ndetermined by dividing the Rentable Area of the Building by the total Rentable
\nArea of all buildings on such parcel or parcels and multiplying the result by
\n100, which Real Property Taxes shall be payable by Tenant to Landlord monthly as
\npart of the Common Area Maintenance Costs.<\/p>\n
(i) Tax Parcels. If Landlord determines in its reasonable
\ndiscretion that the configuration of tax parcels within the Project (including
\nwithout limitation the tax parcel on which the Premises is situated) causes the
\nallocation of Real Property Taxes between the affected tax parcels to be unfair
\nor inequitable, Landlord reserves the right to internally reallocate the Real
\nProperty Taxes assessed against such affected tax parcels in a manner that
\nreasonably addresses such unfairness or inequity. If Landlord effects any such
\nreallocation, then the Real Property Taxes payable by Tenant under this Lease
\nshall be those Real Property Taxes allocated to the Premises pursuant to this
\nParagraph 15.A.(i).<\/p>\n
(ii) Payment. Promptly following payment of the Real
\nProperty Taxes, Tenant shall provide Landlord with copies of paid receipts or
\nother documentary evidence that<\/p>\n
27
\n 34
\nthe Real Property Taxes have been paid by Tenant. If Tenant fails to pay the
\nReal Property Taxes on or before April 10 and December 10, respectively, or if
\nTenant fails to pay its share of Real Property Taxes as part of the Common Area
\nMaintenance Costs, Tenant shall pay to Landlord any penalty incurred by such
\nlate payment. In addition, Tenant shall pay any Real Property Tax not included
\nwithin the county tax assessor’s tax bill within ten (10) days after being
\nbilled for same by Landlord. The foregoing dates are based on the dates
\nestablished by the county as the dates on which Real Property Taxes become
\ndelinquent if not paid. If such delinquency dates change, the dates on which
\nTenant must pay the Real Property Taxes for the Premises shall be at least ten
\n(10) days prior to the new delinquency dates. Assessments, taxes, fees, levies
\nand charges may be imposed by governmental agencies for such purposes as fire
\nprotection, street, sidewalk, road, utility construction and maintenance, refuse
\nremoval and for other governmental services which may formerly have been
\nprovided without charge to property owners or occupants. It is the intention of
\nthe parties that all new and increased assessments, taxes, fees, levies and
\ncharges are to be included within the definition of Real Property Taxes for the
\npurposes of this Lease.<\/p>\n
B. Taxes on Tenant Improvements and Personal Property. Tenant
\nshall pay any increase in Real Property Taxes resulting from any and all
\nAlterations and Tenant Improvements of any kind whatsoever placed in, on or
\nabout the Premises for the benefit of, at the request of, or by Tenant. Tenant
\nshall pay prior to delinquency all taxes assessed or levied against Tenant’s
\nPersonal Property in, on or about the Premises or elsewhere. When possible,
\nTenant shall cause its Personal Property to be assessed and billed separately
\nfrom the Premises and the real property or Personal Property of Landlord.<\/p>\n
C. Proration. Tenant’s liability to pay Real Property Taxes shall
\nbe prorated on the basis of a 360-day year to account for any fractional portion
\nof a fiscal tax year included at the commencement or expiration of the Term.
\nWith respect to any assessments which may be levied against or upon the Premises
\non all or any portion of the Project, or which under the laws then in force may
\nbe evidenced by improvements or other bonds or may be paid in annual
\ninstallments, only the amount of such annual installment (with appropriate
\nproration for any partial year) and interest due thereon shall be included
\nwithin the computation of the annual Real Property Taxes levied against the
\nPremises or such portion of the Project, as applicable.<\/p>\n
16. Utilities and Services.<\/p>\n
Tenant shall be responsible for and shall pay promptly all
\ncharges for water, gas, electricity, telephone, refuse pick-up, janitorial
\nservice and all other utilities, materials and services furnished directly to or
\nused by Tenant in, on or about the Premises during the Term, together with any
\ntaxes thereon. If any utility, material or service is not separately charged or
\nmetered to any portion of the Premises, Tenant shall pay to Landlord, within ten
\n(10) days after written demand therefor, Tenant’s pro rata share of the total
\ncost thereof as may be determined by Landlord. Landlord shall not be liable in
\ndamages or otherwise for any failure or interruption of any utility service or
\nother service furnished to the Premises, except that resulting from the gross
\nnegligence or willful misconduct of Landlord. Tenant shall have the right to
\ncontract directly with vendors for janitorial and maintenance services, provided
\nsuch vendors must be approved in advance by Landlord, which approval shall not
\nbe unreasonably withheld; and provided further,<\/p>\n
28
\n 35
\nthat Tenant shall have no right to contract with any vendor to maintain the
\nBuilding’s HVAC system, which shall be the sole responsibility of Landlord as
\nset forth in Paragraph 17.A.<\/p>\n
17. Repair and Maintenance.<\/p>\n
A. Landlord’s Obligations. Landlord shall keep in good order,
\ncondition and repair the structural parts of the Building, which structural
\nparts consist only of the foundation, subflooring, exterior walls (excluding the
\ninterior of all walls and the exterior and interior of all windows, doors,
\nceilings, and plate glass), and roof of the Building, and all plumbing and
\nelectrical facilities leading up to (but not situated within) the Building,
\nexcept for any damage thereto caused by the negligence or willful acts or
\nomissions of Tenant or of Tenant’s agents, employees or invitees, or by reason
\nof the failure of Tenant to perform or comply with any terms of this Lease, or
\ncaused by Alterations made by Tenant or by Tenant’s agents, employees or
\ncontractors. It is an express condition precedent to all obligations of Landlord
\nto repair and maintain that Tenant shall have notified Landlord of the need for
\nsuch repairs or maintenance. Tenant waives the provisions of Sections 1941 and
\n1942 of the California Civil Code and any similar or successor law regarding
\nTenant’s right to make repairs and deduct the expenses of such repairs from the
\nRent due under this Lease. Landlord shall keep in good order, condition, repair
\nand maintenance the Building’s HVAC system and roof, and shall maintain an HVAC
\nsystem preventive maintenance service contract from a qualified vendor for the
\npurpose of maintaining the Building’s HVAC system, and a roof maintenance
\nservice contract from a qualified vendor for the purpose of maintaining the
\nBuilding’s roof. Landlord shall determine in its sole discretion whether any
\nsuch vendor is qualified. Any and all costs of any maintenance or repair of the
\nHVAC system or the roof (including without limitation the cost of maintaining
\nHVAC system preventative maintenance contracts and roof maintenance service
\ncontracts) shall be included in the Common Area Maintenance Costs payable solely
\nby Tenant for the year in which such cost is incurred. Landlord may elect, in
\nits sole discretion, to paint the exterior of the Building and\/or to replace or
\nperform capital improvements to any area or aspect of the Building which
\nLandlord is required keep in good order, condition and repair. If Landlord
\ndecides, in its sole discretion, to replace the roof of the Building during the
\nTerm, then the cost of so replacing the roof, together with interest at the
\nInterest Rate, shall be amortized on a straight-line basis over the useful life
\nof the roof (as determined by Landlord in its sole discretion) (the “Useful
\nLife”), and the entire amount of such amortized costs and interest shall be
\nincluded in the monthly Common Area Maintenance Costs payable solely by Tenant
\nduring the entire period over which such costs are amortized, until Tenant has
\npaid to Landlord that proportion of the total amount of such amortized costs
\nequal to (a) the number of months remaining during the Term as of the date such
\nroof replacement was completed, divided by (b) the number of months of the
\nUseful Life; provided that in no event shall such proportion exceed one hundred
\npercent (100%). For the purposes of example only and not by way of limitation,
\nif the Building’s roof is replaced twenty-four (24) months before the end of the
\nTerm, at a cost of Fifty Thousand Dollars ($50,000.00), and the Useful Life is
\none hundred twenty (120) months, then (a) the cost of such replacement shall be
\namortized at the rate of Four Hundred Sixteen and 67\/100ths Dollars ($416.67)
\nper month, with interest at the Interest Rate, and (b) the amount to be included
\nin the monthly Common Area Maintenance Costs payable solely by Tenant for the
\nbalance of the Term shall equal Four Hundred Sixteen and 67\/100ths Dollars
\n($416.67), with interest at the Interest Rate, until Tenant has paid to Landlord
\na total aggregate amount of Ten Thousand Dollars<\/p>\n
29
\n 36
\n($10,000.00), together with interest at the Interest Rate, towards such
\namortized costs (i.e., Fifty Thousand Dollars ($50,000.00) multiplied by
\n[Twenty-Four (24) months divided by One Hundred Twenty (120) months]). If Tenant
\nexercises an Option to Extend, the total length of the Term (i.e., the initial
\nTerm and each Extended Term) shall be utilized to calculate the maximum amount
\nof such amortized costs that shall be includable in the monthly Common Area
\nMaintenance Costs payable solely by Tenant pursuant to this Paragraph 17.A.<\/p>\n
It is the express intent of the parties that except as
\nspecifically set forth in this Paragraph 17.A, Landlord shall have no obligation
\nwhatsoever to repair or maintain the Building, and that Tenant shall be
\nresponsible for performing all repair, operation, and maintenance of the
\nBuilding except for those tasks specifically described in this Paragraph 17.A.<\/p>\n
B. Tenant’s Obligations. Tenant shall at all times and at its
\nsole cost and expense clean, keep and maintain in good order, condition and
\nrepair (and replace, if necessary) every part of the Premises which is not
\nwithin Landlord’s obligation pursuant to Paragraph 17.A. Tenant’s repair and
\nmaintenance obligations shall include without limitation all plumbing and
\nelectrical facilities situated within the Building, fixtures, interior walls and
\nceiling, floors, windows, window frames, doors, entrances, plate glass,
\nshowcases, skylights, all lighting fixtures, lamps, fans and any exhaust
\nequipment and systems, all mechanical systems (but not the HVAC system), any
\nautomatic fire extinguisher equipment within the Building, all security systems
\nand alarms, all electrical motors and all other appliances and equipment of
\nevery kind and nature located in, upon or about the Building or the Premises.
\nTenant shall also be responsible for all pest control within the Premises.<\/p>\n
C. Conditions Applicable to Repairs. All repairs, replacements
\nand reconstruction made by or on behalf of Tenant or any person claiming through
\nor under Tenant shall be made and performed (i) at Tenant’s sole cost and
\nexpense, in a good and workmanlike manner and at such time and in such manner as
\nLandlord may reasonably designate, (ii) by contractors approved in advance by
\nLandlord, (iii) so that the repairs, replacements or reconstruction shall be at
\nleast equal in quality, value and utility to the original work or installation,
\n(iv) in accordance with such reasonable requirements as Landlord may impose with
\nrespect to insurance and bonds to be obtained by Tenant in connection with the
\nproposed work, and (v) in accordance with any rules and regulations for the
\nBuilding as may be adopted by Landlord from time to time and in accordance with
\nall applicable laws and regulations of governmental authorities having
\njurisdiction over the Premises.<\/p>\n
D. Landlord’s Rights. If Tenant fails to perform Tenant’s
\nobligations under Paragraph 17.B, Landlord may in its sole discretion give
\nTenant notice of such work as is reasonably required to fulfill such
\nobligations. If Tenant fails to commence the work within thirty (30) days after
\nreceipt of such notice and diligently prosecute the work to completion, then
\nLandlord shall have the right (but not the obligation) to do such acts or expend
\nsuch funds at the expense of Tenant as are reasonably required to perform such
\nwork. Any amount so expended by Landlord shall be paid by Tenant to Landlord
\npromptly after demand with interest at the Interest Rate. Landlord shall have no
\nliability to Tenant for any damage to, or interference with Tenant’s use of, the
\nPremises, or inconvenience to Tenant as a result of performing any such work.<\/p>\n
30
\n 37<\/p>\n
E. Compliance with Governmental Regulations. Tenant shall, at its
\nsole cost and expense, comply with, including the making by Tenant of any
\nAlteration to the Premises, all present and future regulations, rules, laws,
\nordinances, and requirements of all governmental authorities (including, without
\nlimitation state, municipal, county and federal governments and their
\ndepartments, bureaus, boards and officials) applicable to the Premises or the
\nBuilding.<\/p>\n
18. Liens.<\/p>\n
Tenant shall keep the Building and the Premises free from any
\nliens arising out of any work performed, materials furnished or obligations
\nincurred by or on behalf of Tenant and hereby agrees to indemnify, defend,
\nprotect and hold Landlord and Landlord’s Agents harmless from and against any
\nand all loss, claim, damage, liability, cost and expense, including attorneys’
\nfees and costs, in connection with or arising out of any such lien or claim of
\nlien. Tenant shall cause any such lien imposed to be released of record by
\npayment or posting of a proper bond acceptable to Landlord within ten (10) days
\nafter written request by Landlord. Tenant shall give Landlord written notice of
\nTenant’s intention to perform work on the Premises which might result in any
\nclaim of lien at least ten (10) days prior to the commencement of such work to
\nenable Landlord to post and record a Notice of Nonresponsibility or any such
\nother notice(s) as Landlord may deem appropriate. If Tenant fails to so remove
\nany such lien within the prescribed ten 10-day period, then Landlord may do so
\nat Tenant’s expense and Tenant shall reimburse Landlord for such amounts upon
\ndemand. Such reimbursement shall include all costs incurred by Landlord
\nincluding Landlord’s reasonable attorneys’ fees with interest thereon at the
\nInterest Rate.<\/p>\n
19. Landlord’s Right to Enter the Premises.<\/p>\n
Tenant shall permit Landlord and Landlord’s Agents to enter the
\nPremises at all reasonable times with reasonable notice, except for emergencies
\nin which case no notice shall be required, to inspect the same, to post Notices
\nof Nonresponsibility and similar notices, and real estate “For Sale” signs, to
\nshow the Premises to interested parties such as prospective lenders and
\npurchasers, to make necessary repairs, to discharge Landlord’s obligations under
\nthis Lease, to discharge Tenant’s obligations under this Lease when Tenant has
\nfailed to do so within a reasonable time after written notice from Landlord, and
\nat any reasonable time within one hundred and eighty (180) days prior to the
\nexpiration of the Term, to place upon the Building ordinary “For Lease” signs
\nand to show the Premises to prospective tenants.<\/p>\n
20. Signs.<\/p>\n
Subject to Tenant obtaining all necessary approvals from the City
\nof Redwood City and subject to Landlord’s review and approval of plans and
\nspecifications for any proposed signage, which approval may be withheld only in
\nLandlord’s commercially reasonable judgment, Tenant shall have the exclusive
\nright to install identification signage on the exterior of the Building, so long
\nas such signage complies with Landlord’s project sign program. Tenant shall have
\nno right to maintain any Tenant identification sign in any other location in, on
\nor about the Building or the Premises and shall not display or erect any other
\nTenant identification sign, display or other advertising material that is
\nvisible from the exterior of the Building. Any changes to the size, design,
\ncolor or other physical aspects of Tenant’s identification sign(s) shall be<\/p>\n
31
\n 38
\nsubject to the Landlord’s prior written approval, which shall not be
\nunreasonably withheld, and any appropriate municipal or other governmental
\napprovals. The cost of Tenant’s sign(s) and their installation, maintenance and
\nremoval shall be Tenant’s sole cost and expense. If Tenant fails to maintain its
\nsign(s), or, if Tenant fails to remove its sign(s) upon termination of this
\nLease, Landlord may do so at Tenant’s expense and the amounts expended by
\nLandlord in doing so shall be immediately payable by Tenant to Landlord as
\nAdditional Rent.<\/p>\n
21. Insurance.<\/p>\n
A. Indemnification. Tenant shall indemnify, defend, protect and
\nhold Landlord harmless of and from any and all loss, liens, liability, claims,
\ncauses of action, damage, injury, cost or expense arising out of or in
\nconnection with, or related to (i) the making of Alterations, or (ii) injury to
\nor death of persons or damage to property occurring or resulting directly or
\nindirectly from: (A) the use or occupancy of, or the conduct of business in, the
\nPremises; (B) the use, storage, release or disposal by Tenant or Tenant’s
\nemployees, agents, contractors, licensees or invitees, of any Hazardous
\nMaterials in or about the Premises or any other portion of the Project; (C) any
\nother occurrence or condition in or on the Premises; and (D) acts, neglect or
\nomissions of Tenant, its officers, directors, agents, employees, invitees or
\nlicensees in or about any portion of the Project. Tenant’s indemnity obligation
\nincludes reasonable attorneys’ fees and costs, investigation costs and all other
\nreasonable costs and expenses incurred by Landlord. If Landlord disapproves the
\nlegal counsel proposed by Tenant for the defense of any claim indemnified
\nagainst hereunder, Landlord shall have the right to appoint its own legal
\ncounsel, the reasonable fees, costs and expenses of which shall be included as
\npart of Tenant’s indemnity obligation hereunder. The indemnification contained
\nin this Section 21.A shall extend to the officers, directors, shareholders,
\npartners, employees, agents and representatives of Landlord. The obligations
\nassumed by Tenant herein shall survive this Lease. Notwithstanding the
\nforegoing, Landlord shall have the right, in its sole discretion, but without
\nbeing required to do so, to defend, adjust, settle or compromise any claim,
\nobligation, debt, demand, suit or judgment against Landlord arising out of or in
\nconnection with the matters covered by the foregoing indemnity and, in such
\nevent, Tenant shall reimburse Landlord for all reasonable charges and expenses
\nincurred by Landlord in connection therewith, including reasonable attorneys’
\nfees; provided, however, that Landlord shall not undertake any unilateral action
\nor settlement so long as Tenant or an insurance company, at its or their sole
\nexpense, is contesting in good faith, diligently and with continuity such claim,
\naction, obligation, demand or suit, and so long as such claim, action,
\nobligation, demand or suit does not have or threaten to have a material adverse
\nimpact on Landlord’s assets, reputation or business affairs.<\/p>\n
B. Tenant’s Insurance. Tenant agrees to maintain in full force
\nand effect at all times during the Term, at its sole cost and expense, for the
\nprotection of Tenant and Landlord, as their interests may appear, policies of
\ninsurance issued by a responsible carrier or carriers acceptable to Landlord
\nwhich afford the following coverages:<\/p>\n
(i) Commercial general liability insurance in an amount
\nnot less than Three Million and no\/100ths Dollars ($3,000,000.00) combined
\nsingle limit for both bodily injury and property damage which includes blanket
\ncontractual liability broad form property damage, personal injury, completed
\noperations, and products liability, which policy shall name<\/p>\n
32
\n 39
\nLandlord and Landlord’s Agents as additional insureds and shall contain a
\nprovision that “the insurance provided Landlord hereunder shall be primary and
\nnon-contributing with any other insurance available to Landlord with respect to
\nany damage, loss, liability or expense covered by Tenant’s indemnity obligations
\nunder Paragraph 21.A of the Lease.”<\/p>\n
(ii) Causes of loss-special form property insurance
\n(including, without limitation, vandalism, malicious mischief, inflation
\nendorsement, and sprinkler leakage endorsement) on Tenant’s Personal Property
\nlocated on or in the Premises. Such insurance shall be in the full amount of the
\nreplacement cost, as the same may from time to time increase as a result of
\ninflation or otherwise. As long as this Lease is in effect, the proceeds of such
\npolicy shall be used for the repair and replacement of such items so insured.
\nLandlord shall have no interest in the insurance proceeds on Tenant’s Personal
\nProperty. Notwithstanding the foregoing, Tenant shall have the right, at its
\nelection, to self-insure with respect to any loss or damage to Tenant’s Personal
\nProperty.<\/p>\n
(iii) Boiler and machinery insurance, including steam
\npipes, pressure pipes, condensation return pipes and other pressure vessels and
\nHVAC equipment, including miscellaneous electrical apparatus, in an amount
\nsatisfactory to Landlord.<\/p>\n
(iv) Workers compensation insurance in the manner and to
\nthe extent required by applicable law and with limits of liability not less than
\nthe minimum required under applicable law, covering all employees of Tenant
\nhaving any duties or responsibilities in or about the Premises.<\/p>\n
C. Premises Insurance. During the Term Landlord shall maintain
\ncauses of loss-special form property insurance (including inflation endorsement,
\nsprinkler leakage endorsement, and, at Landlord’s option, earthquake and flood
\ncoverage) on the Building, excluding coverage of all Tenant’s Personal Property
\nlocated on or in the Premises, but including the Tenant Improvements. Such
\ninsurance shall also include insurance against loss of rents, including, at
\nLandlord’s option, coverage for earthquake and flood, in an amount equal to the
\nMonthly Rent and Additional Rent, and any other sums payable under the Lease,
\nfor a period of at least twelve (12) months commencing on the date of loss. Such
\ninsurance shall name Landlord and Landlord’s Agents as named insureds and
\ninclude a lender’s loss payable endorsement in favor of Landlord’s lender (Form
\n438 BFU Endorsement). Tenant shall reimburse Landlord monthly, as Additional
\nRent, for one-twelfth (12th) of the annual cost of such insurance on the first
\nday of each calendar month of the Term, prorated for any partial month, or on
\nsuch other periodic basis as Landlord shall elect. If the insurance premiums are
\nincreased after the Commencement Date for any reason, including without
\nlimitation due to an increase in the value of the Building or its replacement
\ncost, or due to Tenant’s use of the Premises or any improvements installed by
\nTenant, Tenant shall pay such increase within ten (10) days of notice of such
\nincrease. Landlord may, in its sole discretion, maintain the insurance coverage
\ndescribed in this Paragraph 21.C as part of an umbrella insurance policy
\ncovering other properties owned by Landlord. Notwithstanding the foregoing, so
\nlong as the original Landlord under this Lease continues to be the Landlord
\nunder this Lease, and subject to the following conditions, Tenant may elect to
\ncarry the insurance required by this Paragraph 21.C if Tenant is able to obtain
\nthe coverage required hereunder at a cost less than that charged by Landlord’s
\ninsurer. Tenant’s right<\/p>\n
33
\n 40
\nto carry such insurance shall be subject to the following conditions: (i) all
\nHolders, defined below, shall have approved Tenant’s right to carry such
\ninsurance, (ii) such insurance shall name Landlord, and all parties designated
\nby Landlord, as additional insureds, and (iii) such insurance shall provide
\nLandlord with at least the same coverage and rights as Landlord would be
\nentitled to receive if Landlord had obtained such insurance.<\/p>\n
D. Increased Coverage. Upon demand, Tenant shall provide
\nLandlord, at Tenant’s expense, with such increased amount of existing insurance,
\nand such other insurance as Landlord or Landlord’s lender may reasonably require
\nto afford Landlord and Landlord’s lender adequate protection.<\/p>\n
E. Failure to Maintain. If Tenant fails to maintain any insurance
\ncoverage that Tenant is required to maintain under this Paragraph 21, and
\nLandlord incurs any liability to its insurance carrier arising out of Tenant’s
\nfailure to so maintain such insurance coverage, then any and all loss or damage
\nLandlord shall sustain by reason thereof, including attorneys’ fees and costs,
\nshall be borne by Tenant and shall be immediately paid by Tenant upon its
\nreceipt of a bill therefor and evidence of such loss. Nothing contained in this
\nParagraph 21.E shall be deemed to limit or affect any other remedies or rights
\navailable to Landlord under this Lease that arise from Tenant’s failure to so
\nmaintain such insurance coverage.<\/p>\n
F. Insurance Requirements. All insurance shall be in a form
\nsatisfactory to Landlord and shall be carried in companies that have a general
\npolicy holder’s rating of not less than “A” and a financial rating of not less
\nthan Class “X” in the most current edition of Best’s Insurance Reports; and
\nshall provide that such policies shall not be subject to material alteration or
\ncancellation except after at least thirty (30) days’ prior written notice to
\nLandlord. The policy or policies, or duly executed certificates for them,
\ntogether with satisfactory evidence of payment of the premiums thereon shall be
\ndeposited with Landlord prior to the Commencement Date, and upon renewal of such
\npolicies, not less than thirty (30) days prior to the expiration of the term of
\nsuch coverage. If Tenant fails to procure and maintain the insurance it is
\nrequired to maintain under this Paragraph 21, Landlord may, but shall not be
\nrequired to, order such insurance at Tenant’s expense and Tenant shall reimburse
\nLandlord therefor. Such reimbursement shall include all costs incurred by
\nLandlord in obtaining such insurance including Landlord’s reasonable attorneys’
\nfees, with interest thereon at the Interest Rate.<\/p>\n
G. Waiver and Release. Except to the extent due to the negligence
\nor willful misconduct of Landlord, Landlord shall not be liable to Tenant or
\nTenant’s employees, agents, contractors, licenses or invitees for, and Tenant
\nwaives as against and releases Landlord and Landlord’s Agents from, all claims
\nfor loss or damage to any property or injury, illness or death of any person in,
\nupon or about the Premises and\/or any other portion of the Project, arising at
\nany time and from any cause whatsoever (including without limitation any claim
\ncaused in whole or in part by the act, omission, or neglect of other tenants,
\ncontractors, licensees, invitees or other occupants of the Project or their
\nagents or employees; and any claim arising from any construction activities
\ntaking place in, upon or about the Premises and\/or any other portion of the
\nProject). Landlord and Landlord’s Agents shall not be liable for any latent
\ndefect in the Premises.<\/p>\n
22. Waiver of Subrogation.<\/p>\n
34
\n 41<\/p>\n
Landlord and Tenant each hereby waive all rights of recovery
\nagainst the other on account of loss or damage occasioned by such waiving party
\nto its property or the property of others under its control, to the extent that
\nsuch loss or damage would be covered by any causes of loss-special form policy
\nof insurance or its equivalent required to be or actually carried under
\nParagraph 21. Tenant and Landlord shall, upon obtaining policies of insurance
\nrequired hereunder, give notice to the insurance carrier that the foregoing
\nmutual waiver of subrogation is contained in this Lease and Tenant and Landlord
\nshall cause each insurance policy obtained by such party to provide that the
\ninsurance company waives all right of recovery by way of subrogation against
\neither Landlord or Tenant in connection with any damage covered by such policy.<\/p>\n
23. Damage or Destruction.<\/p>\n
A. Landlord’s Obligation to Rebuild. If all or any part of the
\nBuilding is damaged or destroyed, Landlord shall promptly and diligently repair
\nthe same unless it has the right to terminate this Lease as provided herein and
\nit elects to so terminate.<\/p>\n
B. Right to Terminate. Landlord shall have the right to terminate
\nthis Lease in the event any of the following events occur:<\/p>\n
(i) insurance proceeds from the insurance Landlord is
\nrequired to carry pursuant to Paragraph 21.C, or that Landlord actually carries,
\nare not available to pay one hundred percent (100%) of the cost of such repair,
\nexcluding the deductible for which Tenant shall be responsible; provided,
\nhowever, that if Tenant pays to Landlord, in immediately available funds, within
\nthirty (30) days after such casualty, any shortfall in such insurance proceeds,
\nas reasonably determined by Landlord, then Landlord shall have no right to
\nterminate the Lease pursuant to this item (i);<\/p>\n
(ii) the Building cannot, with reasonable diligence, be
\nfully repaired by Landlord within three hundred sixty (360) days after the date
\nof the damage or destruction; or<\/p>\n
(iii) the Building cannot be safely repaired because of
\nthe presence of hazardous factors, including, but not limited to, earthquake
\nfaults, radiation, Hazardous Materials and other similar dangers.<\/p>\n
If Landlord elects to terminate this Lease, Landlord may give
\nTenant written notice of its election to terminate within thirty (30) days after
\nsuch damage or destruction, and this Lease shall terminate fifteen (15) days
\nafter the date Tenant receives such notice and both Landlord and Tenant shall be
\nreleased of all further liability under this Lease (except to the extent any
\nprovision of this Lease expressly survives termination and except that Landlord
\nshall return to Tenant the Security Deposit). If Landlord elects not to
\nterminate the Lease, subject to Tenant’s termination right set forth below,
\nLandlord shall promptly commence the process of obtaining necessary permits and
\napprovals and repair of the Building as soon as practicable, and this Lease will
\ncontinue in full force and affect. All insurance proceeds from insurance under
\nParagraph 21, excluding proceeds for Tenant’s Personal Property, shall be
\ndisbursed and paid to Landlord. Tenant shall be required to pay to Landlord the
\namount of any deductibles payable in connection<\/p>\n
35
\n 42
\nwith any insured casualties, unless the casualty was caused by the sole
\nnegligence or willful misconduct of Landlord.<\/p>\n
Tenant shall have the right to terminate this Lease if the
\nBuilding cannot, with reasonable diligence, be fully repaired within three
\nhundred sixty (360) days from the date of damage or destruction. The
\ndetermination of the estimated repair periods in this Paragraph 23 shall be made
\nby an independent, licensed contractor or engineer within thirty (30) days after
\nsuch damage or destruction. Landlord shall deliver written notice of the repair
\nperiod to Tenant after such determination has been made and Tenant shall
\nexercise its right to terminate this Lease, if at all, within ten (10) days of
\nreceipt of such notice from Landlord. Upon such termination both Landlord and
\nTenant shall be released of all further liability under this Lease (except to
\nthe extent any provision of this Lease expressly survives termination).<\/p>\n
C. Limited Obligation to Repair. Landlord’s obligation, should it
\nelect or be obligated to repair or rebuild, shall be limited to the basic
\nBuilding and the Tenant Improvements and shall not include any Alterations made
\nby Tenant.<\/p>\n
D. Abatement of Rent. Rent shall be temporarily abated
\nproportionately, during any period when, by reason of such damage or destruction
\nthere is substantial interference with Tenant’s use of the Premises, having
\nregard to the extent to which Tenant may be required to discontinue Tenant’s use
\nof the Premises. Such abatement of Rent shall be proportional to the extent of
\nsuch interference with Tenant’s use of the Premises reasonably attributable to
\nsuch damage or destruction (with the extent of such interference to be
\nreasonably determined by Landlord), and shall commence upon such damage or
\ndestruction and end upon substantial completion by Landlord of the repair or
\nreconstruction which Landlord is obligated or undertakes to perform. Tenant
\nshall not be entitled to any compensation or damages from Landlord for loss of
\nthe use of the Premises, damage to Tenant’s Personal Property or any
\ninconvenience occasioned by such damage, repair or restoration. Tenant hereby
\nwaives the provisions of Section 1932, Subdivision 2, and Section 1933,
\nSubdivision 4, of the California Civil Code, and the provisions of any similar
\nlaw hereinafter enacted.<\/p>\n
E. Damage Near End of Term. Anything herein to the contrary
\nnotwithstanding, if the Building is destroyed or materially damaged during the
\nlast twelve (12) months of the Term (unless Tenant has properly exercised an
\nOption to Extend), then either Landlord or Tenant may, at its option, cancel and
\nterminate this Lease as of the date of the occurrence of such damage, by
\ndelivery of written notice to the other party and, in such event, upon such
\ntermination both Landlord and Tenant shall be released of all further liability
\nunder this Lease (except to the extent any provision of this Lease expressly
\nsurvives termination). If neither Landlord nor Tenant elects to terminate this
\nLease, the repair of such damage shall be governed by Paragraphs 23.A and 23.B.<\/p>\n
24. Condemnation.<\/p>\n
If title to all of the Premises is taken for any public or
\nquasi-public use under any statute or by right of eminent domain, or so much
\nthereof is so taken so that reconstruction of the Premises will not, in
\nLandlord’s sole discretion, result in the Premises being reasonably suitable<\/p>\n
36
\n 43
\nfor Tenant’s continued occupancy for the uses and purposes permitted by this
\nLease, this Lease shall terminate as of the date that possession of the Premises
\nor part thereof is taken, and upon such termination both Landlord and Tenant
\nshall be released of all further liability under this Lease (except to the
\nextent any provision of this Lease expressly survives termination). A sale by
\nLandlord to any authority having the power of eminent domain, either under
\nthreat of condemnation or while condemnation proceedings are pending, shall be
\ndeemed a taking under the power of eminent domain for all purposes of this
\nParagraph 24.<\/p>\n
If any part of the Premises is taken and the remaining part is
\nreasonably suitable for Tenant’s continued occupancy for the purposes and uses
\npermitted by this Lease, this Lease shall, as to the part so taken, terminate as
\nof the date that possession of such part of the Premises is taken, and upon such
\ntermination both Landlord and Tenant shall be released of all further liability
\nunder this Lease with respect to that portion of the Premises that is taken
\n(except to the extent any provision of this Lease expressly survives termination
\nand except that Landlord shall return to Tenant the Security Deposit). The Rent
\nand other sums payable hereunder shall be reduced in the same proportion that
\nTenant’s use and occupancy of the Premises is reduced. If any portion of the
\nCommon Area is taken, Tenant’s Rent shall be reduced only if such taking
\nmaterially interferes with Tenant’s use of the Common Area and then only to the
\nextent that the fair market rental value of the Premises is diminished by such
\npartial taking. If the parties disagree as to the amount of Rent reduction, the
\nmatter shall be resolved by arbitration and such arbitration shall comply with
\nand be governed by the California Arbitration Act, Sections 1280 through 1294.2
\nof the California Code of Civil Procedure. Each party hereby waives the
\nprovisions of Section 1265.130 of the California Code of Civil Procedure
\nallowing either party to petition the Superior Court to terminate this Lease in
\nthe event of a partial taking of the Premises.<\/p>\n
All compensation or damages awarded or paid for any taking
\nhereunder shall belong to and be the property of Landlord, whether such
\ncompensation or damages are awarded or paid as compensation for diminution in
\nvalue of the leasehold, the fee or otherwise, except that Tenant shall be
\nentitled to any award allowed to Tenant for the taking of Tenant’s Personal
\nProperty, for the interruption of Tenant’s business, for its moving costs, or
\nfor the loss of its good will. Except for the foregoing allocation, no award for
\nany partial or entire taking of the Premises shall be apportioned between
\nLandlord and Tenant, and Tenant assigns to Landlord its interest in the balance
\nof any award which may be made for the taking or condemnation of the Premises,
\ntogether with any and all rights of Tenant arising in or to the same or any part
\nthereof.<\/p>\n
25. Assignment and Subletting.<\/p>\n
A. Landlord’s Consent. Subject to the provisions of Paragraph
\n25.G below, Tenant shall not enter into a Sublet without Landlord’s prior
\nwritten consent, which consent shall not be unreasonably withheld. Any attempted
\nor purported Sublet without Landlord’s prior written consent shall be void and
\nconfer no rights upon any third person and, at Landlord’s election, shall
\nterminate this Lease. Each Subtenant shall agree in writing, for the benefit of
\nLandlord, to assume, to be bound by, and to perform the terms, conditions and
\ncovenants of this Lease to be performed by Tenant, as such terms, conditions and
\ncovenants apply to the Sublet premises. Notwithstanding anything contained
\nherein, Tenant shall not be released from liability for the performance of each
\nterm, condition and covenant of this Lease by reason of Landlord’s<\/p>\n
37
\n 44
\nconsent to a Sublet unless Landlord specifically grants such release in writing.<\/p>\n
B. Tenant’s Notice. If Tenant desires at any time to Sublet all
\nor any portion of the Premises, Tenant shall first notify Landlord in writing of
\nits desire to do so.<\/p>\n
C. Information to be Furnished. If Tenant desires at any time to
\nSublet all or any portion of the Premises, then Tenant shall submit in writing
\nto Landlord: (i) the name of the proposed Subtenant; (ii) the nature of the
\nproposed Subtenant’s business to be carried on in the Premises; (iii) the terms
\nand provisions of the proposed Sublet and a copy of the proposed form of Sublet
\nagreement containing a description of the subject premises; and (iv) such
\nfinancial information, including financial statements, as Landlord may
\nreasonably request concerning the proposed Subtenant.<\/p>\n
D. Landlord’s Alternatives. At any time within ten (10) days
\nafter Landlord’s receipt of the information specified in Paragraph 25.C.,
\nLandlord may, by written notice to Tenant, elect: (i) to consent to the Sublet
\nby Tenant; or (ii) to refuse its consent to the Sublet. If Landlord consents to
\nthe Sublet, Tenant may thereafter enter into a valid Sublet of the Premises or
\napplicable portion thereof, upon the terms and conditions and with the proposed
\nSubtenant set forth in the information furnished by Tenant to Landlord, subject,
\nhowever, at Landlord’s election, to the condition that the following percentages
\nof any excess of the Subrent (the “Excess Subrent”) over the Rent required to be
\npaid by Tenant under this Lease (or, if only a portion of the Premises is
\nSublet, the pro rata share of the Rent attributable to the portion of the
\nPremises being Sublet) less reasonable attorneys’ fees, leasing commissions,
\nimprovement costs required for such Sublet (which shall not include the cost of
\nany trade fixtures, equipment or personal property) and other reasonable
\nsubletting costs paid by Tenant on the Sublet, shall be paid to Landlord. Tenant
\nshall pay the following percentages of Excess Subrent to Landlord in the
\nfollowing circumstances: (i) to the extent the Excess Subrent (for the entire
\nterm of the applicable Sublet) is payable on a monthly basis (as opposed to one
\nor more lump sums) and to the extent the Excess Subrent is less than or equal to
\n$0.25\/month\/square foot of Rentable Area of the portion of the Premises being
\nSublet, then Tenant shall pay to Landlord one-third (1\/3) of the Excess Subrent;
\n(ii) to the extent the Excess Subrent (for the entire term of the applicable
\nSublet) is payable on a monthly basis (as opposed to one or more lump sums) and
\nto the extent the Excess Subrent is greater than $0.25\/month\/square foot of
\nRentable Area of the portion of the Premises being Sublet, then Tenant shall pay
\nto Landlord fifty percent (50%) of the Excess Subrent; (iii) to the extent the
\nExcess Subrent (for the entire term of the applicable Sublet) is not payable on
\na monthly basis, then Tenant shall pay to Landlord fifty percent (50%) of the
\nExcess Subrent; and (iv) to the extent the Excess Subrent is applicable to any
\nperiod during an Extended Term, then Tenant shall pay to Landlord fifty percent
\n(50%) of the Excess Subrent.<\/p>\n
E. Proration. If a portion of the Premises is Sublet, the pro
\nrata share of the Rent attributable to such partial area of the Premises shall
\nbe determined by Landlord by dividing the Rent payable by Tenant hereunder by
\nthe total square footage of the Premises and multiplying the resulting quotient
\n(the per square foot rent) by the number of square feet of the Premises which
\nare Sublet.<\/p>\n
F. Parameters of Landlord’s Consent. Landlord shall have the
\nright to base its<\/p>\n
38
\n 45
\nconsent to any Sublet hereunder upon such factors and considerations as Landlord
\nreasonably deems relevant or material to the proposed Sublet and the best
\ninterests of the Project’s operations. Without limiting the generality of the
\nforegoing, Tenant acknowledges that it shall be reasonable for Landlord to
\nwithhold its consent to any Sublet hereunder if Tenant has not demonstrated
\nthat: (i) the proposed Subtenant is financially responsible, with sufficient net
\nworth and net current assets, properly and successfully to operate its business
\nin the Premises and meet the financial and other obligations of this Lease; (ii)
\nthe proposed Subtenant possesses sound and good business judgment, reputation
\nand experience, and proven management skills in the operation of a business or
\nbusinesses substantially similar to the uses permitted in the Premises under
\nParagraph 11.A; and (iii) the use of the Premises proposed by such Subtenant
\nconforms to the permitted uses specified under Paragraph 11.a, and involves
\neither no Hazardous Use or only such Hazardous Use as shall be acceptable to
\nLandlord in its sole discretion.<\/p>\n
G. Permitted Transfers. Notwithstanding the provisions of
\nParagraph 25.A above, Tenant shall have the right to enter into a Sublet, and
\nLandlord shall not withhold its consent thereto (provided that all of the
\nconditions set forth in clauses (A) and (B) below shall be met), if such Sublet
\nis one of the following “Permitted Transfers”: (i) a Sublet to the surviving
\nentity of a merger or consolidation involving the corporate entity constituting
\nthe Tenant under this Lease; or (ii) a Sublet to any subsidiary or Affiliate of
\nthe Tenant originally named in this Lease. However, the foregoing Permitted
\nTransfers shall be exempt from the requirement of Landlord’s consent only if all
\nof the following conditions shall be met: (A) there shall be no change in the
\nuse or operation of the Premises; (B) Tenant shall have provided to Landlord all
\ninformation to allow Landlord to determine, and Landlord shall have determined,
\nthat the proposed transfer is a Permitted Transfer which is exempt from the
\nrequirement of Landlord’s consent; and (C) as of the effective date of such
\nSublet, the proposed Subtenant has a net worth and net current assets equal to
\nor greater than those of the original Tenant under this Lease as of the date of
\nthis Lease. No Sublet of the type described in this Paragraph 25.G, nor any
\nother transfer of all or any portion of Tenant’s interest in the Lease or the
\nPremises, shall release Tenant of its obligations under this Lease.<\/p>\n
26. Default.<\/p>\n
A. Tenant’s Default. A default under this Lease by Tenant shall
\nexist if any of the following occurs:<\/p>\n
(i) If Tenant fails to pay within five (5) days after
\nwritten notice from Landlord any Rent or any other sum required to be paid
\nhereunder when due, including, without limitation, any Tenant Improvement costs
\npayable by Tenant under Exhibit B; or<\/p>\n
(ii) If Tenant fails to perform any term, covenant or
\ncondition of this Lease except those requiring the payment of money, and Tenant
\nfails to cure such breach within thirty (30) days after written notice from
\nLandlord where such breach could reasonably be cured within such 30-day period;
\nprovided, however, that where such failure could not reasonably be cured within
\nthe 30-day period, that Tenant shall not be in default if it commences such
\nperformance within the 30-day period and diligently thereafter prosecutes the
\nsame to completion; or<\/p>\n
39
\n 46<\/p>\n
(iii) If Tenant assigns its assets for the benefit of its
\ncreditors; or<\/p>\n
(iv) If the sequestration or attachment of or execution on
\nany material part of Tenant’s Personal Property essential to the conduct of
\nTenant’s business occurs, and Tenant fails to obtain a return or release of such
\nTenant’s Personal Property within thirty (30) days thereafter, or prior to sale
\npursuant to such sequestration, attachment or levy, whichever is earlier; or<\/p>\n
(v) If Tenant vacates or abandons the Premises; or<\/p>\n
(vi) If a court makes or enters any decree or order other
\nthan under the bankruptcy laws of the United States adjudging Tenant to be
\ninsolvent; or approving as properly filed a petition seeking reorganization of
\nTenant; or directing the winding up or liquidation of Tenant and such decree or
\norder shall have continued for a period of sixty (60) days; or<\/p>\n
(vii) If Tenant fails to cure within any applicable grace
\nperiod any default by Tenant under any of the Collateral Agreements.<\/p>\n
B. Remedies. Upon a default, Landlord shall have the following
\nremedies, in addition to all other rights and remedies provided by law or
\notherwise provided in this Lease, to which Landlord may resort cumulatively or
\nin the alternative:<\/p>\n
(i) Landlord may continue this Lease in full force and
\neffect, and this Lease shall continue in full force and effect as long as
\nLandlord does not terminate this Lease, and Landlord shall have the right to
\ncollect Rent when due. Without limiting the foregoing, Landlord has the remedy
\nset forth in Section 1951.4 of the California Civil Code.<\/p>\n
(ii) Landlord may terminate Tenant’s right to possession
\nof the Premises at any time by giving written notice to that effect, and relet
\nthe Premises or any part thereof. Tenant shall be liable immediately to Landlord
\nfor all costs Landlord incurs in reletting the Premises or any part thereof,
\nincluding, without limitation, broker’s commissions, expenses of cleaning and
\nredecorating the Premises required by the reletting and like costs. Reletting
\nmay be for a period shorter or longer than the remaining Term of this Lease. No
\nact by Landlord other than giving written notice of termination to Tenant shall
\nterminate this Lease. Neither acts of maintenance, nor efforts to relet the
\nPremises, nor the appointment of a receiver on Landlord’s initiative to protect
\nLandlord’s interest under this Lease shall not constitute a termination of
\nTenant’s right to possession. On termination, Landlord has the right to remove
\nall Tenant’s Personal Property and store the same at Tenant’s sole cost and
\nexpense and to recover from Tenant as damages:<\/p>\n
(a) The worth at the time of award of the unpaid
\nRent and other sums due and payable which had been earned at the time of
\ntermination; plus<\/p>\n
(b) The worth at the time of award of the amount by
\nwhich the unpaid Rent and other sums due and payable which would have been
\npayable after termination until the time of award exceeds the amount of such
\nRent loss that Tenant proves could have been reasonably avoided; plus<\/p>\n
40
\n 47<\/p>\n
(c) The worth at the time of award of the amount by
\nwhich the unpaid rent and other sums due and payable for the balance of the Term
\nafter the time of award exceeds the amount of such Rent loss that Tenant proves
\ncould be reasonably avoided; plus<\/p>\n
(d) Any other amount necessary to compensate
\nLandlord for all the detriment proximately caused by Tenant’s failure to perform
\nTenant’s obligations under this Lease, or which, in the ordinary course of
\nthings, would be likely to result therefrom, including, without limitation, any
\ncosts or expenses incurred by Landlord: (i) in retaking possession of the
\nPremises; (ii) in maintaining, repairing, preserving, restoring, replacing,
\ncleaning, altering or rehabilitating the Premises or any portion thereof,
\nincluding such acts for reletting to a new tenant or tenants; (iii) for leasing
\ncommissions; or (iv) for any other costs necessary or appropriate to relet the
\nPremises; plus<\/p>\n
(e) At Landlord’s election, such other amounts in
\naddition to or in lieu of the foregoing as may be permitted from time to time by
\nthe laws of the State of California.<\/p>\n
The “worth at the time of award” of the amounts referred to in
\nParagraphs 26.B.(ii)(a) and 26.B.(ii)(b) is computed by allowing interest at the
\nInterest Rate on the unpaid rent and other sums due and payable from the
\ntermination date through the date of award. The “worth at the time of award” of
\nthe amount referred to in Paragraph 26.B.(ii)(c) is computed by discounting such
\namount at the discount rate of the Federal Reserve Bank of San Francisco at the
\ntime of award plus one percent (1%). Tenant waives redemption or relief from
\nforfeiture under California Code of Civil Procedure Sections 1174 and 1179, or
\nunder any other present or future law, in the event Tenant is evicted or
\nLandlord takes possession of the Premises by reason of any default of Tenant
\nhereunder.<\/p>\n
(iii) Landlord may, with or without terminating this
\nLease, re-enter the Premises and remove all persons and property from the
\nPremises; such property may be removed and stored in a public warehouse or
\nelsewhere at the cost of and for the account of Tenant. No reentry or taking
\npossession of the Premises by Landlord pursuant to this Paragraph 26.B.(iii)
\nshall be construed as an election to terminate this Lease unless a written
\nnotice of such intention is given to Tenant.<\/p>\n
C. Landlord’s Default. Landlord shall not be deemed to be in
\ndefault in the performance of any obligation required to be performed by it
\nhereunder unless and until it has failed to perform such obligation within
\nthirty (30) days after receipt of written notice by Tenant to Landlord
\nspecifying the nature of such default; provided, however, that if the nature of
\nLandlord’s obligation is such that more than thirty (30) days are required for
\nits performance, then Landlord shall not be deemed to be in default if it shall
\ncommence such performance within such 30-day period and thereafter diligently
\nprosecute the same to completion.<\/p>\n
27. Subordination.<\/p>\n
A. Subordination. This Lease is or may become subject and
\nsubordinate to underlying leases, mortgages, deeds of trust, easements, and
\nCC&Rs (collectively, “Encumbrances”) which may now or hereafter affect the
\nPremises, and to all renewals,<\/p>\n
41
\n 48
\namendments, modifications, consolidations, replacements and extensions thereof;
\nprovided, however, if the holder or holders of any such Encumbrance
\n(collectively, “Holder”) shall require that this Lease be prior and superior
\nthereto, within fifteen (15) days of written request of Landlord to Tenant,
\nTenant shall execute, have acknowledged and deliver any and all documents or
\ninstruments, in the form presented to Tenant, which Landlord or Holder deems
\nreasonably necessary or desirable for such purposes. Subject to Paragraph 27.C
\nbelow, Landlord shall have the right to cause this Lease to be and become and
\nremain subject and subordinate to any and all Encumbrances which are now or may
\nhereafter be executed covering the Premises or any renewals, modifications,
\nconsolidations, replacements or extensions thereof, for the full amount of all
\nadvances made or to be made thereunder and without regard to the time or
\ncharacter of such advances, together with interest thereon and subject to all
\nthe terms and provisions thereof; provided only, that in the event of
\ntermination of any such lease or upon the foreclosure of any such mortgage or
\ndeed of trust, so long as Tenant is not in default, Holder agrees to recognize
\nTenant’s rights under this Lease as long as Tenant shall pay the Rent and
\nobserve and perform all the provisions of this Lease to be observed and
\nperformed by Tenant. Within fifteen (15) days after Landlord’s written request,
\nTenant shall execute any and all documents reasonably required by Landlord or
\nthe Holder to make this Lease subordinate to any lien of the Encumbrance
\n(including, without limitation, subordination to all CC&Rs), including without
\nlimitation a Subordination, Non-Disturbance and Attornment Agreement in the form
\nattached hereto as Exhibit E (“SNDA”). Subject to Paragraph 27.C below, if
\nTenant fails to do so, such failure shall constitute a default under this Lease,
\nand it shall be deemed that this Lease is subordinated to such Encumbrance.<\/p>\n
B. Attornment. Notwithstanding anything to the contrary set forth
\nin this Paragraph 27, Tenant hereby attorns and agrees to attorn to any entity
\npurchasing or otherwise acquiring the Premises at any sale or other proceeding
\nor pursuant to the exercise of any other rights, powers or remedies under such
\nEncumbrance; provided only, that so long as Tenant is not in default, any such
\npurchasing or acquiring entity agrees to recognize Tenant’s rights under this
\nLease as long as Tenant shall pay the Rent and observe and perform all the
\nprovisions of this Lease to be observed and performed by Tenant.<\/p>\n
C. Non-Disturbance. Notwithstanding anything to the contrary in
\nthis Lease, if an Encumbrance, other than any CC&R’s or Landlord’s construction
\nloan, is created after the execution of this Lease, as a condition to the
\nsubordination of this Lease thereto under Paragraph 27.A above, Landlord shall
\nobtain from the Holder of such Encumbrance, other than CC&R’s or the Holder of
\nthe construction loan, a SNDA in a form reasonably requested by such Holder.
\nWithout in any way limiting the type or form of SNDA that may be required by
\nsuch Holder, Tenant hereby agrees that a SNDA in the form attached to this Lease
\nas Exhibit G shall be reasonable. Only upon Landlord’s delivery of a SNDA in the
\nform of Exhibit G or in a form reasonably requested by the Holder, shall this
\nLease be automatically subject and subordinate to such Encumbrance, other than
\nCC&R’s or the construction loan.<\/p>\n
28. Notices.<\/p>\n
Any notice or demand required or desired to be given under this
\nLease shall be in writing and shall be personally served or in lieu of personal
\nservice may be given by certified<\/p>\n
42
\n 49
\nmail, facsimile, or overnight courier service. All notices or demands under this
\nLease shall be deemed given, received, made or communicated on the date personal
\ndelivery is effected; or, if sent by certified mail, on the delivery date or
\nattempted delivery date shown on the return receipt; or, if sent by facsimile,
\non the date sent by the sender; or, if sent by overnight courier service, on the
\ndelivery date or attempted delivery date shown on such service’s records. At the
\ndate of execution of this Lease, the addresses of Landlord and Tenant are as set
\nforth in Paragraph 1. Either party may change its address by giving notice of
\nsame in accordance with this Paragraph 28.<\/p>\n
29. Attorneys’ Fees.<\/p>\n
If either party brings any action or legal proceeding for damages
\nfor an alleged breach of any provision of this Lease, to recover Rent, or other
\nsums due, to terminate the tenancy of the Premises or to enforce, protect or
\nestablish any term, condition or covenant of this Lease or right of either
\nparty, the prevailing party shall be entitled to recover as a part of such
\naction or proceedings, or in a separate action brought for that purpose,
\nreasonable attorneys’ fees and costs, including without limitation any and all
\ncosts and expenses arising from (i) collection efforts, (ii) any appellate
\nproceedings, and (iii) any bankruptcy, insolvency or arbitration proceedings.<\/p>\n
30. Estoppel Certificates.<\/p>\n
Tenant shall within fifteen (15) days following written request
\nby Landlord:<\/p>\n
(i) Execute and deliver to Landlord any documents,
\nincluding estoppel certificates, in the form prepared by Landlord (a) certifying
\nthat this Lease is unmodified and in full force and effect or, if modified,
\nstating the nature of such modification and certifying that this Lease, as so
\nmodified, is in full force and effect and the date to which the Rent and other
\ncharges are paid in advance, if any, and (b) acknowledging that there are not,
\nto Tenant’s knowledge, any uncured defaults on the part of Landlord, or, if
\nthere are uncured defaults on the part of the Landlord, stating the nature of
\nsuch uncured defaults, (c) evidencing the status of the Lease as may be required
\neither by a lender making a loan to Landlord to be secured by deed of trust or
\nmortgage covering the Premises or a purchaser of the Premises from Landlord, and
\n(d) such other matters as may be reasonably requested by Landlord. Tenant’s
\nfailure to deliver an estoppel certificate within fifteen (15) days after
\ndelivery of Landlord’s written request therefor shall be conclusive upon Tenant
\n(a) that this Lease is in full force and effect, without modification except as
\nmay be represented by Landlord, (b) that there are now no uncured defaults in
\nLandlord’s performance, and (c) that no Rent has been paid in advance.<\/p>\n
If Tenant fails to so deliver a requested estoppel certificate
\nwithin the prescribed time it shall be conclusively presumed that this Lease is
\nunmodified and in full force and effect except as represented by Landlord.<\/p>\n
(ii) Deliver to Landlord the current financial statements
\nof Tenant, and financial statements of the two (2) years prior to the current
\nfinancial statements year, with an opinion of a certified public accountant,
\nincluding a balance sheet and profit and loss statement<\/p>\n
43
\n 50
\nfor the most recent prior year, all prepared in accordance with generally
\naccepted accounting principles consistently applied.<\/p>\n
31. Transfer of the Premises by Landlord.<\/p>\n
In the event of any conveyance of the Premises and assignment by
\nLandlord of this Lease, Landlord shall be and is hereby entirely released from
\nall liability under any and all of its covenants and obligations contained in or
\nderived from this Lease occurring after the date of such conveyance and
\nassignment, and Tenant agrees to attorn to such transferee provided such
\ntransferee assumes Landlord’s obligations under this Lease.<\/p>\n
32. Landlord’s Right to Perform Tenant’s Covenants.<\/p>\n
If Tenant shall at any time fail to make any payment or perform
\nany other act on its part to be made or performed under this Lease, and such
\nfailure shall continue after the expiration of any applicable grace or cure
\nperiods provided in this Lease, Landlord may, but shall not be obligated to (and
\nwithout waiving or releasing Tenant from any obligation of Tenant under this
\nLease), make such payment or perform such other act to the extent Landlord may
\ndeem desirable, and in connection therewith, pay expenses and employ counsel.
\nAll sums so paid by Landlord and all penalties, interest, expenses and costs in
\nconnection therewith shall be due and payable by Tenant on the next day after
\nany such payment by Landlord, together with interest thereon at the Interest
\nRate from such date to the date of payment by Tenant to Landlord, plus
\ncollection costs and attorneys’ fees. Landlord shall have the same rights and
\nremedies for the nonpayment thereof as in the case of default in the payment of
\nRent.<\/p>\n
33. Tenant’s Remedy.<\/p>\n
Landlord shall never be personally liable under this Lease, and
\nTenant shall look solely to the net cash flow received by Landlord from its
\nownership of the Building, for recovery of any damages for breach of this Lease
\nby Landlord or on any judgment in connection therewith. None of the persons or
\nentities comprising or representing Landlord (whether partners, shareholders,
\nofficers, directors, trustees, employees, beneficiaries, agents or otherwise)
\nshall ever be personally liable under this Lease or for any such damages or
\njudgment, and Tenant shall have no right to effect any levy of execution against
\nany assets of such persons or entities on account of any such liability or
\njudgment. Any lien obtained by Tenant to enforce any such judgment, and any levy
\nof execution thereon, shall be subject and subordinate to all Encumbrances as
\nspecified in Paragraph 27 above.<\/p>\n
34. Mortgagee Protection.<\/p>\n
If Landlord defaults under this Lease, Tenant shall give written
\nnotice of such default to any beneficiary of a deed of trust or mortgagee of a
\nmortgage covering the Premises, and offer such beneficiary or mortgagee a
\nreasonable opportunity to cure the default, including time to obtain possession
\nof the Premises by power of sale or a judicial foreclosure, if such should prove
\nnecessary to effect a cure.<\/p>\n
44
\n 51
\n 35. Brokers.<\/p>\n
Landlord and Tenant acknowledge and agree that they have utilized
\nthe services of real estate brokers (with AMB Corporate Real Estate Advisors and
\nColliers Parrish representing Tenant, and BT Commercial representing Landlord)
\nwith respect to the transactions between Landlord and Tenant that are
\nrepresented by this Lease. Tenant warrants and represents that it has had no
\ndealings with any other real estate broker or agent in connection with the
\nnegotiation of this Lease, and that it knows of no other real estate broker or
\nagent who is or might be entitled to a commission in connection with this Lease.
\nTenant shall indemnify, defend and hold Landlord harmless from and against any
\nand all claims, causes of action, liability or costs, including reasonable
\nattorney’s fees, arising as a result of a breach of the foregoing warranty and
\nrepresentation. Nothing contained in this Paragraph 35 shall be deemed to
\nobligate or require Landlord to pay any commission whatsoever to any real estate
\nbroker (including without limitation AMB and BT) with respect to this Lease; the
\npayment of any such commission (if any) shall be governed by a separate written
\nagreement between Landlord and the real estate broker or brokers in question.
\nTenant shall separately compensate AMB and Colliers Parrish for its services and
\nno commission shall be payable to AMB and Colliers Parrish in connection with
\nthis Lease.<\/p>\n
36. Acceptance.<\/p>\n
This Lease shall only become effective and binding upon full
\nexecution hereof by Landlord and delivery of a signed copy to Tenant. Neither
\nparty shall record this Lease nor a short form memorandum thereof.<\/p>\n
37. Parking.<\/p>\n
Tenant shall have the non-exclusive right, in common with any
\nother tenants or occupants of the Project, to use up to 3.33 unassigned parking
\nspaces per each one thousand (1,000) square feet of Rentable Area in the
\nPremises, upon terms and conditions, as may from time to time be reasonably
\nestablished by Landlord; provided, however, that Tenant acknowledges and agrees
\nthat during the construction of the Parking Structure (as defined in the Build
\nto Suit Agreement), the parking ratio for the Building may from time to time be
\nless than 3.33 spaces per 1,000 square feet of Rentable Area. Should parking
\ncharges or surcharges of any kind be imposed on the parking facilities by a
\ngovernmental agency, Tenant shall reimburse Landlord for such charges and\/or
\nsurcharges or, if possible, shall pay such charges and\/or surcharges directly to
\nthe governmental agency and, in such event, Tenant shall provide Landlord with
\nproof that such charges and\/or surcharges have been paid by Tenant. Parking on
\nthat portion of the Project cross-hatched on Exhibit C shall be subject such
\nreciprocal easement agreements affecting the such portion of the Project as
\nLandlord may adopt from time to time.<\/p>\n
38. Right of First Offer to Purchase.<\/p>\n
During the term of this Lease, Landlord shall not sell fee title
\nto the Building to any unaffiliated third party or parties, without first
\noffering to sell the Building to Tenant upon the terms, covenants and conditions
\nset forth in this Paragraph 38; provided, however, that as<\/p>\n
45
\n 52
\nprovided below this Paragraph 38 may cease to be of any force or effect prior to
\nthe expiration or earlier termination of the term of this Lease. Notwithstanding
\nany provision of this Lease to the contrary, the provisions of this Paragraph 38
\nshall not apply to, and Tenant shall have absolutely no rights in connection
\nwith, any of the following: (i) any and all transfers of all or any portion of
\nthe Building, or any interest therein, by means of judicial foreclosure,
\ntrustee’s sale, deed in lieu of foreclosure or similar conveyance, (ii) any and
\nall transfers or conveyances of any ownership interests in Landlord or any of
\nthe parties or entities comprising Landlord (including without limitation
\ntransfers of partnership interests, membership interests, and shares of common
\nand\/or preferred stock), (iii) any and all transfers of tenancy-in-common
\ninterests in the Building by Landlord to, or by and among, the parties or
\nentities comprising Landlord, (iv) the creation of any liens, encumbrances or
\nsecurity interests or the transfer of any interest in the Building for security
\npurposes, and (v) the transfer of all or any portion of the Building, or any
\ninterest in the Building, to any Affiliate of Landlord or any partner, member or
\nshareholder of Landlord.<\/p>\n
A. Notice of Sale. If at any time during the term of this Lease
\nLandlord desires to sell fee title to the Building to an unaffiliated third
\nparty, Landlord shall give written notice to Tenant specifying the terms,
\ncovenants and conditions upon which Landlord is willing to sell the Building
\n(the “Acceptable Sale Terms”). The notice shall constitute an irrevocable offer
\non the part of Landlord (subject to the conditions described in Paragraph 38.F
\nbelow) to sell the Building to Tenant upon the Acceptable Sale Terms, and
\nLandlord and Tenant shall have a period of thirty (30) days after Landlord’s
\ndelivery of the notice within which to negotiate and agree upon the terms and
\nconditions for the sale to Tenant of the Building (the “Sale Negotiation
\nPeriod”).<\/p>\n
B. Acceptance. If Tenant is interested in acquiring the Building,
\nTenant shall give Landlord written notice of such interest (“Notice of Interest
\nI”) within ten (10) days of Tenant’s receipt of Landlord’s notice (the “Purchase
\nResponse Period”), and Landlord and Tenant shall proceed to negotiate Tenant’s
\npurchase of the Building and the terms and conditions of purchase during the
\nSale Negotiation Period. Should the parties reach agreement on the terms and
\nconditions of Tenant’s acquisition of the Building within the Sale Negotiation
\nPeriod, then Tenant shall acquire, on an all cash basis, in the manner set forth
\nin Paragraph 38.G, fee title to the Building, together with any and all
\nimprovements situated thereon. Failure on the part of Tenant either to deliver a
\nNotice of Interest to Landlord within the Purchase Response Period or to accept
\nLandlord’s offer to sell the Building within the Sale Negotiation Period shall
\neach constitute Tenant’s rejection of Landlord’s offer to sell the Building.<\/p>\n
C. Rejection. If (i) Tenant informs Landlord within the Sale
\nResponse Period that Tenant does not desire to negotiate the acquisition of the
\nBuilding, or (ii) after commencing negotiations, Landlord and Tenant do not
\nreach agreement upon the terms and conditions of Tenant’s purchase of the
\nBuilding within the Sale Negotiation Period, or (iii) Tenant otherwise rejects
\nLandlord’s offer to sell the Building, then, in any such event (except as
\nprovided to the contrary in Paragraphs 38.D and 38.E), this Paragraph 38 shall
\nno longer apply to the Building, and Landlord (and each and every subsequent
\nowner of the Building) shall be free to offer to sell all or any portion of the
\nBuilding (separately or together with any other parcel or parcels) to any third
\nparty or parties upon any terms whatsoever, including without limitation terms
\nless favorable to Landlord than the Acceptable Sale Terms, without first
\noffering the Building to<\/p>\n
46
\n 53
\nTenant.<\/p>\n
D. Offered Terms. If Tenant does not accept Landlord’s offer as
\nset forth above, but Tenant does deliver to Landlord within the Sale Negotiation
\nPeriod a written offer (“Tenant’s Purchase Offer”) to acquire the Building for a
\npurchase price (“Tenant’s Offered Price”) less than the price contained in the
\nAcceptable Sale Terms, then Tenant shall be deemed to have made an irrevocable
\noffer to acquire the Building at Tenant’s Offered Price. Tenant’s Purchase Offer
\nshall be deemed to include all of the Acceptable Sale Terms, except that to the
\nextent there is any discrepancy between the Acceptable Sale Terms and the terms
\nset forth in Tenant’s Purchase Offer, Tenant’s Purchase Offer shall be
\ncontrolling (except as otherwise provided in Paragraph 38.G below).<\/p>\n
E. Acceptance of Tenant’s Offer. If Tenant rejects or otherwise
\nfails to accept Landlord’s offer pursuant to this Paragraph 38 but delivers
\nTenant’s Purchase Offer to Landlord in accordance with Paragraph 38.D, then
\nLandlord may at any time within sixty (60) days after Landlord’s receipt of
\nTenant’s Purchase Offer, accept Tenant’s Purchase Offer and sell the Building to
\nTenant in accordance with the terms thereof and the other terms and conditions
\nset forth in this Paragraph 38. If Landlord thus accepts Tenant’s Purchase
\nOffer, then Tenant shall acquire, on an all cash basis, in accordance with the
\nprovisions of Paragraph 38.G, fee title to the Building, together with the
\nimprovements situated thereon. If Landlord does not accept Tenant’s Purchase
\nOffer within such 60-day period, then upon the expiration of such 60-day period
\nthis Paragraph 38 shall terminate and shall no longer apply to the Building, and
\nLandlord (and each and every subsequent owner of the Building) shall be free to
\nsell all or any portion of the Building (separately or together with any other
\nparcel or parcels) to a third party or parties upon any terms whatsoever,
\nincluding without limitation terms less favorable to Landlord than the terms
\ncontained in Tenant’s Purchase Offer, without first offering to sell the
\nBuilding to Tenant.<\/p>\n
F. Conditions. The effectiveness of Tenant’s right to offer to
\nacquire any Building, as set forth in this Paragraph 38, is conditioned on the
\nfollowing: (i) Tenant has not previously entered into a Sublet of this Lease
\n(other than a Permitted Transfer); and (ii) no monetary or other material
\ndefault by Tenant exists under this Lease which remains uncured after the giving
\nof any applicable notice and the expiration of any applicable cure period. In
\naddition, if any of the conditions specified under clauses (i) and (ii) above do
\nnot continue to be satisfied as of the date on which the escrow for the sale of
\nthe Building to Tenant is scheduled to close, then unless Landlord waives in
\nwriting any such conditions, Tenant’s exercise of its right to acquire the
\nBuilding under this Paragraph 38 shall be null and void, and this Lease shall
\nterminate effective as of the date on which the escrow for the sale of the
\nBuilding to Tenant was scheduled to close.<\/p>\n
G. Process. In the event that Landlord and Tenant reach agreement
\non the terms and conditions of the sale of the Building within the applicable
\nperiod of time set forth in this Paragraph 38, Tenant’s acquisition of the
\nBuilding shall be carried out on (i) the terms and conditions described in this
\nParagraph 38 and\/or to which Landlord and Tenant have otherwise specifically
\nagreed pursuant to this Paragraph 38 (collectively, the “Agreed Terms”), and
\n(ii) the terms and conditions set forth on Exhibit F attached to this Lease (the
\n“Standard Terms for Purchase”). To the extent there is any discrepancy between
\nthe Agreed Terms and the Standard<\/p>\n
47
\n 54
\nTerms, the Agreed Terms shall be controlling; provided, however, that
\nnotwithstanding the foregoing, Tenant shall be required to make an earnest money
\ndeposit equal to five percent (5%) of the purchase price for the Building,
\npursuant to the Standard Terms.<\/p>\n
H. Rights Personal. The rights granted to Tenant under this
\nParagraph 38 shall be personal to Tenant, and shall not be assigned, sold,
\nconveyed or otherwise transferred to any other party (including without
\nlimitation any assignee or sublessee of Tenant) without the prior written
\nconsent of Landlord, which consent may be withheld in Landlord’s sole
\ndiscretion; provided, however, that the rights granted to Tenant under this
\nParagraphs 38 may be transferred without Landlord’s consent to the transferee of
\nTenant’s interest in this Lease pursuant to a Permitted Transfer.<\/p>\n
39. General.<\/p>\n
A. Captions. The captions and headings used in this Lease are for
\nthe purpose of convenience only and shall not be construed to limit or extend
\nthe meaning of any part of this Lease.<\/p>\n
B. Executed Copy. Any fully executed copy of this Lease shall be
\ndeemed an original for all purposes.<\/p>\n
C. Time. Time is of the essence for the performance of each term,
\ncondition and covenant of this Lease.<\/p>\n
D. Separability. If one or more of the provisions contained
\nherein, except for the payment of Rent, is for any reason held invalid, illegal
\nor unenforceable in any respect, such invalidity, illegality, or
\nunenforceability shall not affect any other provision of this Lease, but this
\nLease shall be construed as if such invalid, illegal or unenforceable provision
\nhad not been contained herein.<\/p>\n
E. Choice of Law. This Lease shall be construed and enforced in
\naccordance with the laws of the State of California. The language in all parts
\nof this Lease shall in all cases be construed as a whole according to its fair
\nmeaning and not strictly for or against either Landlord or Tenant.<\/p>\n
F. Gender; Singular, Plural. When the context of this Lease
\nrequires, the neuter gender includes the masculine, the feminine, a partnership
\nor corporation or joint venture, and the singular includes the plural.<\/p>\n
G. Binding Effect. The covenants and agreement contained in this
\nLease shall be binding on the parties hereto and on their respective successors
\nand assigns to the extent this Lease is assignable.<\/p>\n
H. Waiver. The waiver by Landlord of any breach of any term,
\ncondition or covenant, of this Lease shall not be deemed to be a waiver of such
\nprovision or any subsequent breach of the same or any other term, condition or
\ncovenant of this Lease. The subsequent<\/p>\n
48
\n 55
\nacceptance of Rent hereunder by Landlord shall not be deemed to be a waiver of
\nany preceding breach at the time of acceptance of such payment. No covenant,
\nterm or condition of this Lease shall be deemed to have been waived by Landlord
\nunless such waiver is in writing signed by Landlord.<\/p>\n
I. Entire Agreement. This Lease is the entire agreement between
\nthe parties, and there are no agreements or representations between the parties
\nexcept as expressed herein. Except as otherwise provided herein, no subsequent
\nchange or addition to this Lease shall be binding unless in writing and signed
\nby the parties hereto.<\/p>\n
J. Authority. If Tenant is a corporation or a partnership, each
\nindividual executing this Lease on behalf of said corporation or partnership, as
\nthe case may be, represents and warrants that he is duly authorized to execute
\nand deliver this Lease on behalf of said entity in accordance with its corporate
\nbylaws, statement of partnership or certificate of limited partnership, as the
\ncase may be, and that this Lease is binding upon said entity in accordance with
\nits terms. Landlord, at its option, may require a copy of such written
\nauthorization to enter into this Lease.<\/p>\n
K. Exhibits. All exhibits, amendments, riders and addenda
\nattached hereto are hereby incorporated herein and made a part hereof.<\/p>\n
L. Lease Summary. The Lease Summary attached to this Lease is
\nintended to provide general information only. In the event of any inconsistency
\nbetween the Lease Summary and the specific provisions of this Lease, the
\nspecific provisions of this Lease shall prevail.<\/p>\n
M. Memorandum of Lease. This Lease shall not be recorded without
\nthe prior consent of both Landlord and Tenant; provided, however, that upon the
\nwritten request of Tenant, Landlord and Tenant shall execute and acknowledge, in
\nrecordable form, a memorandum of this Lease in form reasonably acceptable to
\nboth Landlord and Tenant, and shall cause such memorandum to be recorded in the
\nOfficial Records of the County of San Mateo, State of California. Upon
\nexpiration of the term of this Lease or earlier termination of this Lease,
\nTenant shall execute, acknowledge and deliver to Landlord an appropriate
\ninstrument prepared by Landlord which Landlord may then record in the Official
\nRecords of San Mateo County to expunge this Lease and any memorandum thereof
\nfrom the public record with respect to the Premises. In addition, Tenant hereby
\nirrevocably constitutes and appoints Landlord as its true and lawful attorney in
\nfact, in its name and in its behalf, to make, execute, acknowledge, deliver, and
\nfile any and all such instruments that Tenant so fails or refuses to execute.
\nTenant expressly understands and acknowledges that the foregoing special power
\nof attorney is coupled with an interest, is irrevocable, and shall survive the
\ndissolution or insolvency of Tenant, or the transfer by Tenant of the whole or
\nany portion of its interest in this Lease (provided that any such transfer shall
\nbe subject to the restrictions set forth in this Lease).<\/p>\n
49
\n 56<\/p>\n
THIS LEASE is effective as of the date the last signatory
\nnecessary to execute the Lease shall have executed this Lease.<\/p>\n
TENANT:<\/p>\n
Dated: ,1998 AT HOME CORPORATION,
\n ——— a Delaware corporation<\/p>\n
By: \/s\/ KENNETH A. GOLDMAN
\n —————————————
\n Its:
\n —————————————<\/p>\n
By:
\n —————————————
\n Its:
\n —————————————<\/p>\n
LANDLORD:<\/p>\n
Dated: 7\/19\/98 MARTIN\/CAMPUS ASSOCIATES, L.P.,
\n ————- a Delaware limited partnership<\/p>\n
By: Martin\/Redwood Partners,
\n L.P., a California limited
\n partnership, its General Partner<\/p>\n
By: TMG Redwood LLC,
\n A California limited liability
\n Company
\n Its: General Partner<\/p>\n
By: The Martin Group of
\n Companies, Inc., a
\n California corporation,
\n Its General Partner<\/p>\n
By: \/s\/
\n ———————-
\n Its: Vice President
\n ———————-<\/p>\n
50
\n 57
\n EXHIBIT A<\/p>\n
PREMISES
\n 58
\n EXHIBIT B<\/p>\n
WORK LETTER AGREEMENT<\/p>\n
THIS WORK LETTER (“Agreement”) is made and entered into by and
\nbetween Landlord and Tenant as of the date of the Lease. This Agreement shall be
\ndeemed a part of the Lease to which it is attached. Capitalized terms which are
\nused herein and defined in the Lease shall have the meanings given in the Lease.<\/p>\n
1. General.<\/p>\n
1.1 Capital Improvements. Pursuant to the Build to Suit
\nAgreement, Landlord shall construct the Shell and Core and applicable site work
\n(as defined in the Build to Suit Agreement) (collectively, the “Capital
\nImprovements”). Except for its obligation to perform the Capital Improvements
\nand the Tenant Improvements as set forth in this Lease and the Work Letter,
\nLandlord shall have no obligation whatsoever to do any work or perform any
\nimprovements whatsoever to any portion of the Premises or the Building;
\nprovided, however, that the Tenant Improvements shall be performed at the sole
\ncost and expense of Tenant (subject to the provisions of Paragraph 1.4).
\nLandlord shall cause Contractor (as defined below) to perform all initial
\nleasehold improvements, in accordance with the approved Final Plans and as
\notherwise may be required to comply with applicable law (collectively, the
\n“Tenant Improvements”). The parties acknowledge and agree that the Capital
\nImprovements and the Tenant Improvements constitute all of the work required to
\nenable Tenant to occupy, and operate its business in, the Premises.<\/p>\n
1.2 Tenant Improvement Costs. The cost of performing the Tenant
\nImprovements, including without limitation the costs described in Paragraph 6
\nbelow (collectively, the “Tenant Improvement Costs”) shall be paid by Tenant in
\nthe manner set forth in Paragraph 5 below, subject to the provisions of
\nParagraph 1.4.<\/p>\n
1.3 Tenant Improvements Allowance. If the lender for the
\nConstruction Financing (as defined in the Build to Suit Agreement) is willing to
\nincrease the amount of such Construction Financing to cover all or any portion
\nof the Tenant Improvement Costs, then Landlord shall provide an allowance for
\nthe Tenant Improvement Costs in an amount equal to that portion of the
\nConstruction Financing budgeted for payment of such costs (the “Tenant
\nImprovements Allowance”); provided, however, that in no event shall the Tenant
\nImprovements Allowance exceed Thirty Dollars ($30.00) per square foot of
\nRentable Area to be situated in the Building.<\/p>\n
2. Approval of Plans for Tenant Improvements.<\/p>\n
2.1 Architect. Within five (5) days after execution of the Lease,
\nTenant shall notify Landlord in writing of the name and address of the licensed
\narchitect which Tenant desires to engage for the preparation of plans for
\nTenant’s Work (“Architect”). Tenant’s proposed architect shall be subject to
\nLandlord’s prior written approval. Tenant shall retain Architect’s
\nadministrative services throughout the performance of Tenant’s Work. Designers
\nwho are not<\/p>\n
59
\nlicensed architects will not be acceptable.<\/p>\n
2.2 Submittal of Plans.<\/p>\n
2.2.1. Preliminary Plans. Tenant shall cause Architect to
\nprepare preliminary plans (the “Preliminary Plans”) for the Tenant Improvements
\nto be performed at the Premises. Tenant shall cause Architect to deliver the
\nPreliminary Plans to Landlord within thirty (30) days after the date on which
\nthe Lease has been signed by Landlord and Tenant. Within five (5) days after
\nLandlord’s receipt of the Preliminary Plans, Landlord shall either approve or
\ndisapprove the Preliminary Plans, which approval shall not be unreasonably
\nwithheld. If Landlord disapproves the Preliminary Plans, then Landlord shall
\nstate in reasonable detail the changes which Landlord requires to be made
\nthereto. Tenant shall submit to Landlord revised Preliminary Plans within five
\n(5) days after Tenant’s receipt of Landlord’s disapproval notice. Following
\nLandlord’s receipt of the revised Preliminary Plans from Tenant, Landlord shall
\nhave the right to review and approve the revised Preliminary Plans pursuant to
\nthis Paragraph 2.2.1. Landlord shall give Tenant written notice of its approval
\nor disapproval of the revised Preliminary Plans within five (5) days after the
\ndate of Landlord’s receipt thereof. If Landlord reasonably disapproves the
\nrevised Preliminary Plans, then the following shall occur: (i) Landlord and
\nTenant shall continue to follow the procedures set forth in this Paragraph 2.2.1
\nuntil Landlord and Tenant reasonably approve the Preliminary Plans in accordance
\nwith this Paragraph 2.2.1, and (ii) the period between the date of Landlord’s
\nreasonable disapproval and the eventual mutual approval of such Preliminary
\nPlans shall constitute a Tenant Delay.<\/p>\n
2.2.2. Preliminary Budget. Landlord shall retain a
\ncontractor (“Contractor”) as the general contractor for the construction of the
\nTenant Improvements. Tenant shall have the right to approve the construction
\ncontract between Landlord and Contractor for the construction of the Tenant
\nImprovements, which approval shall not be unreasonably withheld or delayed;
\nprovided, however, that Tenant shall have no right to disapprove such
\nconstruction contract if such construction contract substantially conforms with
\nthe applicable AIA form contract and general conditions. Ten (10) days after
\napproval by Landlord and Tenant of the Preliminary Plans, Contractor shall
\nprepare a preliminary budget for the Tenant Improvements based upon the approved
\nPreliminary Plans, which Contractor shall submit to Tenant for its review and
\napproval. Within three (3) days after Tenant’s receipt of the preliminary
\nbudget, Tenant shall either approve or disapprove the preliminary budget. If
\nTenant reasonably rejects such preliminary budget, Tenant shall, within five (5)
\ndays of Tenant’s delivery of a written rejection notice to Landlord, require
\nArchitect to revise the Preliminary Plans to reduce the cost of the Tenant
\nImprovements. Following Tenant’s instructions to the Architect, Landlord and
\nTenant shall again follow the procedures set forth in Paragraph 2.2.1 and this
\nParagraph 2.2.2 with respect to the approval of the Preliminary Plans and to the
\nsubmission and approval of the preliminary budget from Contractor.<\/p>\n
2.2.3. Final Plans. Within three (3) days after approval
\nby Landlord and Tenant of the preliminary budget for the Tenant Improvements,
\nTenant shall cause Architect to commence preparing complete plans,
\nspecifications and working drawings which incorporate and are consistent with
\nthe approved Preliminary Plans and preliminary budget, and which show in detail
\nthe intended design, construction and finishing of all portions of the Tenant
\nImprovements<\/p>\n
60<\/p>\n
described in the Preliminary Plans (collectively, the “Final Plans”). Tenant
\nshall cause Architect to deliver the Final Plans to Landlord, for Landlord’s
\nreview and approval, no later than ninety (90) days after the date on which the
\nLease has been signed by Landlord and Tenant. Within five (5) days after
\nLandlord’s receipt of the Final Plans, Landlord shall either approve or
\ndisapprove the Final Plans, which approval shall not be unreasonably withheld.
\nIf Landlord disapproves the Final Plans, then Landlord shall state in reasonable
\ndetail the changes which Landlord requires to be made thereto. Tenant shall
\nsubmit to Landlord revised Final Plans within five (5) days after Tenant’s
\nreceipt of Landlord’s disapproval notice. Following Landlord’s receipt of the
\nrevised Final Plans from Tenant, Landlord shall have the right to review and
\napprove the revised Final Plans pursuant to this Paragraph 2.2.3. Landlord shall
\ngive Tenant written notice of its approval or disapproval of the revised Final
\nPlans within five (5) days after the date of Landlord’s receipt thereof. If
\nLandlord reasonably disapproves the revised Final Plans, then the following
\nshall occur: (i) Landlord and Tenant shall continue to follow the procedures set
\nforth in this Paragraph 2.2.3 until Landlord and Tenant reasonably approve such
\nFinal Plans in accordance with this Paragraph 2.2.3, and (ii) the period between
\nthe date of Landlord’s reasonable disapproval and the eventual mutual approval
\nof such Final Plans shall constitute a Tenant Delay.<\/p>\n
3. Construction Budget. Upon approval by Landlord and Tenant of
\nthe Final Plans, Landlord shall instruct Contractor to obtain competitive bids
\nfor the Tenant Improvements from at least three (3) qualified subcontractors for
\neach of the major subtrades (excluding the mechanical and electrical trades,
\nwhich shall be on a design\/build basis, unless Landlord elects to competitively
\nbid these trades) and to submit the same to Landlord and Tenant for their review
\nand approval. Upon selection of the subcontractors and approval of the bids,
\nContractor shall prepare a cost estimate for the Tenant Improvements described
\nin such Final Plans, based upon the bids submitted by the subcontractors
\nselected. Contractor shall submit such cost estimate to Landlord and Tenant for
\ntheir review and approval. Within five (5) days after their receipt of the cost
\nestimate, Landlord and Tenant shall each either approve or disapprove the cost
\nestimate, which approval shall not be unreasonably withheld. Tenant’s failure to
\napprove or disapprove the cost estimate within such 5-day period shall
\nconstitute Grounds for the assertion of a Tenant Delay. Landlord or Tenant may
\neach approve or reject such cost estimate in their reasonable sole discretion.
\nIf either Landlord or Tenant rejects such cost estimate, Landlord shall
\nresolicit bids based on such Final Plans, in accordance with the procedures
\nspecified above. Following any resolicitation of bids by Landlord pursuant to
\nthis Paragraph 3, Landlord and Tenant shall again follow the procedures set
\nforth in this Paragraph 3 with respect to the submission and reasonable approval
\nof the cost estimate from Contractor; provided, however that the period between
\nTenant’s disapproval of the first revised cost estimate and the eventual mutual
\napproval of a cost estimate shall constitute a Tenant Delay.<\/p>\n
4. Landlord to Construct. Landlord shall cause Contractor to construct
\nthe Tenant Improvements in a good and workmanlike manner, in accordance with the
\napproved Final Plans and in compliance with all applicable laws. Architect shall
\nbe responsible for obtaining all necessary building permits and approvals and
\nother authorizations from governmental agencies required in connection with the
\nTenant Improvements. The cost of all such permits and approvals, including
\ninspection and other building fees required to obtain the permits for the Tenant
\nImprovements, shall be included as part of the Tenant Improvement Costs. Tenant
\nshall have the benefit of any warranties provided by Contractor, the
\nsubcontractors and suppliers in<\/p>\n
61<\/p>\n
connection with the Tenant Improvements.<\/p>\n
5. Payment for Tenant Improvements. The Tenant Improvement Costs shall
\nbe paid solely by Tenant as follows:<\/p>\n
5.1 Method of Payment. If Landlord provides a Tenant Improvements
\nAllowance for the Building pursuant to Paragraph 1.4 above, Landlord shall bear
\nthe Tenant Improvement Costs up to the amount of such Tenant Improvements
\nAllowance; and Tenant shall be responsible for paying any excess in the Tenant
\nImprovement Costs over the amount of such Tenant Improvements Allowance. If
\nLandlord does not provide a Tenant Improvements Allowance, Tenant shall be
\nsolely responsible for the payment of any and all Tenant Improvement Costs. For
\nthe purposes of this Exhibit B, the term “Tenant’s Share of Tenant Improvement
\nCosts” shall mean the entire amount of all Tenant Improvement Costs, less any
\nTenant Improvements Allowance provided by Landlord; provided, however, that if
\nLandlord does not provide a Tenant Improvements Allowance, then “Tenant’s Share
\nof Tenant Improvement Costs” shall mean the entire amount of all Tenant
\nImprovement Costs. If required by any lender holding a security interest
\nencumbering the land on which the Building will be situated, Tenant shall
\nprovide the Set-Aside Funds (as defined in Paragraph 5.1.1) in accordance with
\nthe provisions of Paragraph 5.1.1. If at the time construction of the Building
\nis scheduled to commence no such lender exists, or if there is such a lender but
\nsuch lender does not at any time during the construction of the Building require
\nLandlord to obtain the Set-Aside Funds from Tenant, then Tenant shall not be
\nrequired to provide the Set-Aside Funds for the construction of the Building.<\/p>\n
5.1.1. Set-Aside Funds. If Tenant is required to deposit
\nthe Set-Aside Funds pursuant to Paragraph 5.1, then within five (5) days after
\nthe parties have mutually agreed upon a cost estimate for the Tenant
\nImprovements as provided above, Tenant shall deposit into a separate account
\nwith any financial institution designated by Landlord, in Tenant’s name, subject
\nto restrictions in favor of such financial institution, an amount (the
\n“Set-Aside Funds”) equal to (a) the entire amount of Tenant’s Share of Tenant
\nImprovement Costs, based on the assumption that the Tenant Improvement Costs
\nshall equal such cost estimate, and (b) all other amounts to be deposited by
\nTenant in such account pursuant to the terms of the Build to Suit Option
\nAgreement. Landlord shall instruct such financial institution to hold the
\nSet-Aside Funds in a separate interestbearing account with interest to accrue
\nfor Tenant’s account, and shall utilize the Set-Aside Funds to pay for Tenant’s
\nShare of Tenant Improvement Costs and any other obligations of Tenant pursuant
\nto the Build to Suit Option Agreement. Before commencement of construction of
\nany subsequent portion of the Tenant Improvements, Tenant shall deposit in such
\naccount an additional amount equal to Tenant’s Share of Tenant Improvement Costs
\nfor such subsequent Tenant Improvements.<\/p>\n
5.1.2. Payment. If Landlord provides a Tenant Improvements
\nAllowance pursuant to Paragraph 1.4 above, then within twenty (20) days after
\nLandlord’s receipt of reasonably satisfactory invoices for costs of labor and
\nmaterials incurred in connection with the Tenant Improvements, together with
\nsuch supporting documentation and lien waivers as Landlord may reasonably
\nrequire in order to review the costs covered by the billing, Landlord shall pay
\nthe Tenant Improvement Costs represented by such invoices first coming due for<\/p>\n
62<\/p>\n
payment, up to an aggregate amount equal to the Tenant Improvements Allowance.
\nAs and when any amount of Tenant’s Share of Tenant Improvement Costs or any
\namounts payable by Tenant pursuant to the Build to Suit Option Agreement become
\ndue and payable, Landlord shall request such financial institution to utilize
\nthe remaining SetAside Funds to pay such amounts; provided, however, that if at
\nany time there are insufficient Set-Aside Funds to pay any amount of Tenant’s
\nShare of Tenant Improvement Costs and\/or any other amounts payable by Tenant
\npursuant to the Build to Suit Option Agreement, Tenant shall pay any and all
\nsuch excess Shell and Core Costs and Tenant Improvement Costs to Landlord within
\nten (10) days after the date of Tenant’s receipt of Landlord’s written request
\ntherefor, together with such supporting documentation and lien waivers as Tenant
\nmay reasonably require in order to review the costs covered by the billing. Any
\nfailure by Tenant to pay any amount of Tenant’s Share of Tenant Improvement
\nCosts or any other amounts payable by Tenant pursuant to the Build to Suit
\nOption Agreement as and when required under this Exhibit B shall constitute a
\ndefault by Tenant under the Lease.<\/p>\n
5.1.3. Penalties. To the extent that any contractor or
\nsubcontractor working on the Tenant Improvements imposes upon Landlord any
\npenalty or late charge due to Tenant’s failure to pay to Landlord any amount due
\nunder this Paragraph 5.1 as and when such amount is due, Tenant shall be solely
\nresponsible for paying such penalty or late charge; provided, however, that if
\nTenant disputes the imposition of such penalty or late charge, Tenant shall not
\nbe required to pay the penalty or late charge until the dispute has been settled
\nor otherwise resolved; provided further, that if any penalty or late charge is
\nimposed due to Tenant’s exercise of its rights under this Paragraph 5.1.3,
\nTenant shall pay such penalty or late charge as provided in this Paragraph
\n5.1.3.<\/p>\n
5.2 Extra Work. Tenant shall be solely responsible for any and
\nall costs and expenses arising from any improvements to or installations in the
\nBuilding desired by Tenant and approved by Landlord that are outside the scope
\nof the Final Plans.<\/p>\n
6. Tenant Improvement Costs. The Tenant Improvement Costs shall include
\nall reasonable costs incurred in connection with the Tenant Improvements (but
\nnot the Capital Improvements), as determined by Landlord in its reasonable
\ndiscretion, including the following:<\/p>\n
(a) All costs of space plans and other architectural and
\nengineering plans and specifications for the Tenant Improvements, including
\nengineering costs associated with completion of the State of California energy
\nutilization calculations under Title 24 legislation required in connection with
\nthe Tenant Improvements;<\/p>\n
(b) All costs of obtaining building permits and other necessary
\nauthorizations from the City of Redwood City;<\/p>\n
(c) All costs of interior design and finish schedule plans and
\nspecifications, including as-built drawings by Architect;<\/p>\n
(d) All direct and indirect costs of procuring, constructing and
\ninstalling the Tenant Improvements in the Premises, including, but not limited
\nto, the construction fee payable to the Contractor for overhead and profit, and
\nthe cost of all on-site supervisory and <\/p>\n
63
\nadministrative staff, office, equipment and temporary services rendered by
\nContractor in connection with construction of the Tenant Improvements;<\/p>\n
(e) All fees payable to Architect and Landlord’s engineering firm
\nif they are required by Tenant to redesign any portion of the Tenant
\nImprovements following Tenant’s approval of the Final Plans;<\/p>\n
(f) Sewer connection fees (if any);<\/p>\n
(g) All costs of installing an emergency power supply systems in
\neach of the Buildings, which emergency power supply shall include emergency HVAC
\nfor Tenant’s computer rooms;<\/p>\n
(h) All direct and indirect construction costs associated with
\ncomplying with Title 24 legislation and ADA compliance for all interior
\nimprovements (including the reconstruction of all restrooms); and<\/p>\n
(i) A construction management fee payable to Landlord equal to
\nthree percent (3%) of the total Tenant Improvement Costs. (Landlord shall either
\nprovide, or cause a third party to provide, construction management services in
\nconnection with the construction of the Tenant Improvements, and the foregoing
\nfee shall be the sole compensation for such services).<\/p>\n
7. Chance Requests. No revisions to the approved Final Plans shall be
\nmade by either Landlord or Tenant unless approved in writing by both parties.
\nLandlord agrees to make all changes (i) required by any public agency to conform
\nwith governmental regulations, or (ii) requested in writing by Tenant and
\napproved in writing by Landlord, which approval shall not be unreasonably
\nwithheld. Any costs related to such changes shall be added to the Tenant
\nImprovement Costs and shall be paid for in accordance with Paragraph 5. The
\nbilling for such additional costs shall be accompanied by evidence of the
\namounts billed as is customarily used in the business. Costs related to changes
\nshall include, without limitation, any architectural, structural engineering, or
\ndesign fees, and the Contractor’s price for effecting the change. Any change
\norder which may extend the date of substantial completion of the Tenant
\nImprovements may be disapproved by Landlord unless Tenant agrees that for all
\npurposes under this Lease, the Tenant Improvements shall be deemed to have been
\nsubstantially completed on that date on which such Tenant Improvements would
\nhave been substantially completed without giving effect to the change order in
\nquestion.<\/p>\n
8. Early Access. So long as such entry does not in any way interfere
\nwith or delay Landlord’s construction of the Improvements, Tenant shall have the
\nright to enter the Premises before the Commencement Date for the purpose of
\ninstalling cable T.V., telephones, telecommunications cabling, furniture and
\nother similar items. Such entry shall be subject to all of the terms and
\nconditions of the Lease, other than the obligation to pay Rent.<\/p>\n
9. Acceptance of Building. Within thirty (30) days after completion of
\nthe Tenant Improvements, Tenant shall conduct a walk-through inspection of the
\nBuilding with Landlord and complete a punch-list of items needing additional
\nwork. Other than the items specified in the<\/p>\n
64
\npunch list, if any, by taking possession of the Building, Tenant shall be deemed
\nto have accepted the Building in good, clean and completed condition and repair,
\nsubject to all applicable laws, codes and ordinances. Any damage to the Building
\ncaused by Tenant’s move-in shall be repaired or corrected by Tenant, at its sole
\ncost and expense, which repair or corrective work shall not be paid for out of
\nany Tenant Improvements Allowance. Tenant acknowledges that neither Landlord nor
\nLandlord’s agents shall be deemed to have made any representations or warranties
\nas to the suitability or fitness of the Building for the conduct of Tenant’s
\nbusiness or for any other purpose, nor shall Landlord or Landlord’s agents be
\ndeemed to have agreed to undertake any alterations or construct any improvements
\nto the Building except as expressly provided in the Lease, this Exhibit B, and
\nthe Build to Suit Option Agreement. If Tenant fails to submit a punch-list to
\nLandlord within such 30-day period, it shall be deemed that there are no items
\nneeding additional work or repair. Contractor shall complete all reasonable
\npunch-list items within thirty (30) days after the walk-through inspection or as
\nsoon as practicable thereafter. Upon completion of such punch-list items, Tenant
\nshall approve such completed items in writing to Landlord. If Tenant fails to
\napprove such items within fourteen (14) days of completion, such items shall be
\ndeemed approved by Tenant. Landlord shall, upon Tenant’s written request, assign
\nand transfer to Tenant, to the extent reasonably requested by Tenant and
\nconsistent with Landlord’s position as the owner of the Building, Landlord’s
\nrights and claims against Contractor arising from Contractor’s warranties
\n(express and implied) with respect to the Building. Nothing contained in this
\nParagraph 10 shall limit, restrict, or terminate any right of Landlord or Tenant
\nto make any claim against Contractor based upon the condition of the Building or
\nany and all of Contractor’s warranties (express and implied) with respect to the
\nBuilding.<\/p>\n
LANDLORD: TENANT:<\/p>\n
MARTIN\/CAMPUS ASSOCIATES, L.P., AT HOME CORPORATION,
\na Delaware limited partnership a Delaware corporation<\/p>\n
By: Martin\/Redwood Partners, By: \/s\/ KENNETH A. GOLDMAN
\n L.P., a California limited —————————–
\n partnership, its General Its:
\n Partner —————————–<\/p>\n
By:
\n —————————–
\n Its:
\n —————————–<\/p>\n
By: The Martin Group of
\n Companies, Inc., a
\n California corporation,
\n its General Partner<\/p>\n
By: \/s\/
\n ———————-
\n Its: Vice President
\n ———————-<\/p>\n
65
\n EXHIBIT C<\/p>\n
SITE PLAN FOR PROJECT<\/p>\n
This Exhibit will either be (i) the North Expansion Parcel (see Exhibit
\nC-1), or (ii) the south campus (see Exhibit C-2), as applicable.<\/p>\n
66
\n EXHIBIT D<\/p>\n
COMMENCEMENT DATE MEMORANDUM<\/p>\n
LANDLORD: Martin\/Campus Associates, L.P.<\/p>\n
TENANT:
\n ——————————
\nLEASE DATE:
\n ——————————
\nPREMISES:
\n ——————————<\/p>\n
Pursuant to Paragraph 4.A. of the above referenced Lease, the commencement date
\nis hereby established as __________________ for ____________________, Redwood
\nCity, CA 94063. The Commencement Date as defined in Paragraph 4.A. shall be
\n___________________.<\/p>\n
TENANT:<\/p>\n
Dated: ,1998 AT HOME CORPORATION,
\n ——— a Delaware corporation<\/p>\n
By: \/s\/ KENNETH A. GOLDMAN
\n —————————————
\n Its:
\n —————————————<\/p>\n
By:
\n —————————————
\n Its:
\n —————————————<\/p>\n
LANDLORD:<\/p>\n
Dated: MARTIN\/CAMPUS ASSOCIATES, L.P.,
\n ————- a Delaware limited partnership<\/p>\n
By: Martin\/Redwood Partners,
\n L.P., a California limited
\n partnership, its General Partner<\/p>\n
By: TMG Redwood LLC,
\n A California limited liability
\n Company
\n Its: General Partner<\/p>\n
By: The Martin Group of
\n Companies, Inc., a
\n California corporation,
\n Its General Partner<\/p>\n
By:
\n ———————-
\n Its:
\n ———————-<\/p>\n
67
\n EXHIBIT E<\/p>\n
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT<\/p>\n
68
\n EXHIBIT F<\/p>\n
STANDARD TERMS FOR OPTION TO PURCHASE<\/p>\n
This Exhibit F sets forth certain standard terms that shall be
\napplicable to the purchase of the Building pursuant Paragraph 38 of the Lease.
\nThis Exhibit shall be deemed a part of the Lease to which it is attached.
\nCapitalized terms which are used herein and defined in the Lease shall have the
\nmeanings given in the Lease.<\/p>\n
1. Sale and Purchase; Title Company.<\/p>\n
1.1 General. In the event Tenant acquires the Building, (the
\n“Option Property”), Landlord shall sell to Tenant, and Tenant shall purchase
\nfrom Landlord, all of the “Property” (as defined below).<\/p>\n
1.2 The Property. As used in this Agreement, the term “Property”
\nincludes the Option Property and all of the items referred to in Paragraphs
\n1.2.1 through 1.2.4.<\/p>\n
1.2.1. Personal Property. All of Landlord’s right, title
\nand interest in and to any and all personal property located at the Option
\nProperty which is owned by Landlord and which is used in the operation and
\nmaintenance of the Option Property (the “Personal Property”).<\/p>\n
1.2.2. Rights and Privileges. All of Landlord’s right,
\ntitle and interest, if any, in and to all rights, privileges, tenements,
\nhereditaments, rights-of-way, easements, appurtenances, mineral rights,
\ndevelopment rights, air rights and riparian or littoral rights belonging or
\nappertaining to the Option Property.<\/p>\n
1.2.3. Contracts and Leases. All of Landlord’s right,
\ntitle and interest in and to (i) all service, maintenance, construction,
\nmanagement and other contracts relating to the Option Property (collectively,
\n“Contracts”), and (ii) all leases, tenancy and occupancy agreements for all or
\nany portion of the Option Property (collectively, “Leases”).<\/p>\n
1.2.4. Permits and Warranties. All of Landlord’s right,
\ntitle and interest in and to (i) all licenses, permits and approvals, if any,
\naffecting or pertaining to the Option Property which, if assignable, are to be
\nassigned to Tenant at the Closing (as defined below), and (ii) all warranties,
\nif any, affecting or pertaining to the Option Property which, if assignable, are
\nto be assigned to Tenant at the Closing.<\/p>\n
1.3 Title Company. The purchase and sale of the Property shall be
\naccomplished through an escrow which Landlord has established or will establish
\nwith Chicago Title Insurance Company, One Kaiser Plaza, Oakland, California (the
\n“Title Company”).<\/p>\n
2. Title. Title to the Property shall be conveyed from Landlord to
\nTenant by grant deed (the “Deed”), subject to: (i) liens to secure payment of
\nreal estate taxes and assessments not delinquent; (ii) applicable zoning and use
\nlaws, ordinances, rules and regulations of any municipality, township, county,
\nstate or other governmental agency or authority; (iii) all matters
\n 69
\nthat would be disclosed by a physical inspection or survey of the Option
\nProperty or that are actually known to Tenant; (iv) any exceptions or matters
\ncreated by Tenant, its agents, employees or representatives; (v) all exceptions
\nof record that were in existence as of the date of the Lease and all CC&Rs
\nrecorded by Landlord; (vi) all Leases and Contracts; and (vii) such other
\nexceptions as Tenant may approve in writing.<\/p>\n
The foregoing exceptions to title are referred to collectively as the
\n“Conditions of Title”. Conclusive evidence of delivery of title in accordance
\nwith the foregoing shall be the willingness of Title Company to issue to Tenant,
\nupon payment of its regularly scheduled premium, its CLTA owner’s policy of
\ntitle insurance, in the amount of the Purchase Price, showing title to the
\nOption Property vested of record in Tenant, subject only to the Conditions of
\nTitle (and the standard printed exceptions and conditions in the policy of title
\ninsurance). If Landlord for any reason is unable to deliver title to the
\nProperty subject only to the Conditions of Title, then Tenant’s sole remedy
\nshall be to terminate this Agreement and receive a return of any Deposit, and
\nneither Landlord nor Tenant shall thereafter have any further rights or
\nobligations under this Agreement, except Tenant’s obligation to perform the
\nContinuing Obligations (as defined below). Tenant shall have no right to
\ncommence any action for damages, specific performance or other relief as a
\nresult of Landlord’s inability to deliver title to the Property subject only to
\nthe Conditions of Title; provided, however, that if Landlord intentionally fails
\nto consummate the conveyance of the Option Property to Tenant in accordance with
\nthe terms of the Lease, then Tenant shall have the right to commence any actions
\nfor damages, specific performance or other relief as a result of Landlord’s
\nintentional breach.<\/p>\n
3. Damage, Destruction or Taking. If at any time prior to the Closing,
\nLandlord determines that the Option Property has been destroyed or damaged by
\nearthquake, flood or other casualty and that such damage will require more than
\nOne Million Dollars ($1,000,000.00) to repair (a “Casualty”), or if a proceeding
\nis instituted for the taking of all or any material portion of the Option
\nProperty under the power of eminent domain (a “Taking”), then Tenant shall have
\nthe right by giving written notice to Landlord and Title Company within fifteen
\n(15) days after the date of receipt of written notice of any such Casualty or
\nTaking, either to: (i) consummate the purchase of the Property in accordance
\nwith the Lease, in which event Landlord shall assign to Tenant at the Closing
\n(A) any insurance proceeds payable to Landlord on account of such Casualty, or
\n(B) any award payable to Landlord by reason of the Taking, as the case may be;
\nor (ii) terminate Landlord’s obligations under Paragraph 38 of the Lease and
\nthis Exhibit F, effective as of the date such notice of termination is given. If
\nTenant fails to give such notice within such 15-day period, then Tenant shall be
\ndeemed to have elected to terminate Landlord’s obligations under Paragraph 38 of
\nthe Lease and this Exhibit F, pursuant to this Paragraph 3. The Closing Date
\nshall be deferred, if necessary, to permit Tenant to have the 15-day period
\nfollowing receipt of notice of a Casualty or a Taking to make the election
\nspecified hereinabove. If Tenant terminates Landlord’s obligations under
\nParagraph 38 of the Lease and this Exhibit F, pursuant to this Paragraph 3, then
\nany Deposit shall be returned to Tenant, and neither Landlord nor Tenant shall
\nhave any further obligations under Paragraph 38 of the Lease or this Exhibit F.
\nNothing herein shall be deemed to constitute an obligation on the part of
\nLandlord to carry or maintain any insurance of any kind whatsoever pertaining to
\nthe Property.<\/p>\n
4. Landlord’s Disclaimer; Release and Indemnification of Landlord.<\/p>\n
70
\n 4.1 Landlord’s Disclaimer. Tenant acknowledges and agrees that
\nthe sale of the Property to Tenant is made without any warranty or
\nrepresentation of any kind by Landlord, either express or implied, with respect
\nto any aspect, portion or component of the Property, including: (i) the physical
\ncondition, nature or quality of the Property, including the quality of the soils
\non and under the Property and the quality of the labor and materials included in
\nany buildings or other improvements, fixtures, equipment or personal property
\ncomprising a portion of the Property; (ii) the fitness of the Property for any
\nparticular purpose; (iii) the presence or suspected presence of hazardous
\nmaterials on, in, under or about the Property (including the soils and
\ngroundwater on and under the Property); or (iv) existing or proposed
\ngovernmental laws or regulations applicable to the Property, or the further
\ndevelopment or change in use thereof, including environmental laws and laws or
\nregulations dealing with zoning or land use. Tenant further agrees and
\nacknowledges that, as of the Closing, Tenant shall have made such feasibility
\nstudies, investigations, environmental studies, engineering studies, inquiries
\nof governmental officials, and all other inquiries and investigations, which
\nTenant shall deem necessary to satisfy itself as to the condition, nature and
\nquality of the Property and as to the suitability of the Property for Tenant’s
\npurposes. Tenant further agrees and acknowledges that, in purchasing the
\nProperty, Tenant shall rely entirely on its own investigation, examination and
\ninspection of the Property, and not upon any representation or warranty of
\nLandlord, or any agent or representative of Landlord. Tenant further agrees and
\nacknowledges that Tenant has leased and occupied the Option Property prior to
\nthe Closing, by reason of such tenancy, possession and occupancy, Tenant is
\nfully aware of the condition of the Option Property. THEREFORE, TENANT AGREES
\nTHAT, IN CONSUMMATING THE PURCHASE OF THE PROPERTY PURSUANT TO THIS LEASE,
\nTENANT SHALL ACQUIRE THE PROPERTY IN ITS THEN CONDITION, “AS IS, WHERE IS” AND
\nWITH ALL FAULTS, AND SOLELY IN RELIANCE ON TENANT’S OWN INVESTIGATION,
\nEXAMINATION, INSPECTION, ANALYSIS AND EVALUATION OF THE PROPERTY. The agreements
\nand acknowledgments contained in this Paragraph 4.1 constitute a conclusive
\nadmission that Tenant, as a sophisticated, knowledgeable investor in real
\nproperty, shall acquire the Property solely upon its own judgment as to any
\nmatter germane to the Property or to Tenant’s contemplated use of the Property,
\nand not upon any statement, representation or warranty by Landlord, or any agent
\nor representative of Landlord, which is not expressly set forth in this
\nAgreement. At the Closing, upon the request of Landlord, Tenant shall execute
\nand deliver to Landlord a certificate of Tenant reaffirming the foregoing.<\/p>\n
4.2 Tenant’s Release of Landlord. Tenant hereby waives, releases
\nand forever discharges Landlord and its officers, directors, employees and
\nagents from any and all claims, actions, causes of action, demands, liabilities,
\ndamages, costs, expenses or compensation whatsoever, whether direct or indirect,
\nknown or unknown, foreseeable or unforeseeable, which Tenant may have at the
\nClosing or which may arise in the future on account of or in any way arising out
\nof or connected with the Property, including: (i) the physical condition, nature
\nor quality of the Property (including the soils and groundwater on and under the
\nOption Property); (ii) the presence or release in, under, on or about the
\nProperty (including the soils and groundwater on and under the Option Property)
\nof any hazardous materials; and (iii) the ownership, management or operation of
\nthe Property, but excluding claims to the extent based on Landlord’s fraud or
\nintentional misrepresentation. At the Closing, upon the request of Landlord,
\nTenant shall deliver to Landlord a certificate of Tenant reaffirming the
\nforegoing. Tenant hereby waives the protection of California Civil Code
\nParagraph 1542, which reads as follows:<\/p>\n
71<\/p>\n
“A general release does not extend to claims which the creditor
\n does not know or suspect to exist in his favor at the time of
\n executing the release, which if known by him must have materially
\n affected his settlement with the debtor.”<\/p>\n
Tenant’s
\nInitials \/s\/
\n ————<\/p>\n
4.3 Tenant’s Indemnification of Landlord. Tenant shall indemnify,
\ndefend, protect and hold Landlord harmless from and against any and all claims,
\nactions, causes of action, demands, liabilities, damages, costs and expenses
\n(including attorneys’ fees), whether direct or indirect, known or unknown,
\nforeseeable or unforeseeable, which may be asserted against or suffered by
\nLandlord at any time after the Closing on account of or in any way arising out
\nof or connected with the Property, including: (i) the physical condition, nature
\nor quality of the Property (including the soils and groundwater on and under the
\nOption Property); (ii) the presence or release in, under, on or about the
\nProperty (including the soils and groundwater on and under the Option Property)
\nof any hazardous materials; and (iii) the ownership, management or operation of
\nthe Property, including any claim or demand by any tenant for the refund or
\nreturn of any security deposit or other deposit, but excluding claims to the
\nextent based on Landlord’s fraud or intentional misrepresentation. At the
\nClosing, upon the request of Landlord, Tenant shall deliver to Landlord a
\ncertificate reaffirming the foregoing.<\/p>\n
4.4 Flood Hazard Zone. Tenant acknowledges that if the Option
\nProperty is located in an area which the Secretary of HUD has found to have
\nspecial flood hazards, then pursuant to the National Flood Insurance Program,
\nTenant will be required to purchase flood insurance in order to obtain any loan
\nsecured by the Option Property from any federally regulated financial
\ninstitution or a loan insured or guaranteed by an agency of the United States
\ngovernment. Tenant shall have sole responsibility to determine whether the
\nOption Property is located in an area which is subject to the National Flood
\nInsurance Program.<\/p>\n
4.5 Inspections. Subject to obtaining Landlord’s prior written
\nconsent, which shall not be unreasonably withheld or delayed, Tenant shall have
\nthe right to conduct such inspections, investigations, borings, samplings and
\nother tests of the Property that Tenant deems to be useful or necessary for the
\nconduct of Tenant’s due diligence in connection with the acquisition of the
\nProperty. Upon request by Tenant, Landlord shall make available to Tenant for
\ninspection all material documents and reports in Landlord’s possession relating
\nto the condition of the Property. Tenant shall indemnify, defend, protect and
\nhold Landlord harmless from and against any and all loss, cost, damage, injury,
\nclaim (including claims of lien for work or labor performed or materials or
\nsupplies furnished), liability or expense (including attorneys’ fees) as a
\nresult of, arising out of, or in any way connected with the exercise of Tenant’s
\n(or its agents’, contractors’, employees’ or authorized representatives’)
\ninspection rights pursuant to this Paragraph 4.5 or the performance of Tenant’s
\ndue diligence. Tenant shall promptly repair any damage to the Property caused by
\nits due diligence.<\/p>\n
5. Closing.<\/p>\n
72<\/p>\n
5.1. Closing. The transaction contemplated by this Exhibit F
\nshall be consummated through escrow at the office of Title Company on the date
\ndescribed in Paragraph 5.1.1 below, or on such other date as shall be mutually
\nagreed upon by Landlord and Tenant (each, a “Closing Date”). For purposes of
\nthis Exhibit F. the term “Closing” shall mean the consummation of the sale and
\nconveyance of the Property to Tenant as evidenced by recordation of the Deed (as
\ndefined below).<\/p>\n
5.1.1. Closing Date. The Closing Date shall be no later
\nthan the date specified in the Agreed Terms.<\/p>\n
5.2. Landlord’s Delivery Into Escrow. Landlord shall deliver the
\nfollowing items into escrow:<\/p>\n
5.2.1. Deed. The Deed, duly executed and acknowledged by
\nLandlord, except that the amount of any transfer tax shall not be shown on the
\nDeed, but shall be set forth on a separate affidavit or instrument which, after
\nrecordation of the Deed, shall be attached thereto so that the amount of such
\ntransfer tax shall not be of record.<\/p>\n
5.2.2. Other Documents. Such other documents or
\ninstruments as may be reasonably required to consummate this transaction in
\naccordance with the terms and conditions herein contained, such as appropriate
\nescrow instructions to Title Company.<\/p>\n
5.3. Tenant’s Delivery Into Escrow. Tenant shall deliver the
\nfollowing items into escrow:<\/p>\n
5.3.1. Cash. Immediately available funds in the following
\namounts: (i) the balance of the Purchase Price, less the amount of the Deposit;
\n(ii) such amount, if any, as is necessary for Tenant to pay Tenant’s share of
\nthe closing costs and prorations specified in Paragraphs 5.5 and 5.6; and (iii)
\nany other amounts required to close escrow in accordance with the terms of this
\nExhibit F.<\/p>\n
5.3.2. Other Documents. Such other documents and
\ninstruments as may be reasonably required in order to consummate this
\ntransaction in accordance with the terms and conditions of this Exhibit F and
\nthe Lease, such as appropriate escrow instructions to Title Company.<\/p>\n
5.3.3. Evidence of Authorization. Such evidence as shall
\nreasonably establish that Tenant’s performance of its obligations under the
\nLease and this Exhibit F have been duly authorized and that the person or
\npersons executing all documents on behalf of Tenant have been duly authorized
\nand empowered to do so.<\/p>\n
5.4. Landlord’s and Tenant’s Joint Delivery Into Escrow. Landlord
\nand Tenant jointly shall deliver the following items into escrow:<\/p>\n
5.4.1. Assignment and Assumption Agreements. A document by
\nwhich<\/p>\n
73<\/p>\n
Landlord assigns to Tenant, and Tenant assumes, the Leases, Contracts, permits
\nand warranties which will survive the Closing.<\/p>\n
5.4.2. Other Documents. Such other documents and
\ninstruments as may be reasonably required to consummate this transaction in
\naccordance with the terms and conditions of this Agreement.<\/p>\n
5.5. Closing Prorations. At the Closing, all items of income and
\nexpense of the Property shall be prorated as provided in this Paragraph 5.5 on
\nthe basis of a 360-day year, actual days elapsed for the month in which the
\nClosing occurs, as of midnight on the day immediately preceding the Closing
\nDate. Except as provided in this Paragraph 5.5, income and expenses attributable
\nto the period prior to the Closing Date shall be for the account of Landlord,
\nand income and expenses attributable to the period on and after the Closing Date
\nshall be for the account of Tenant. Property taxes and assessments shall be
\nprorated through escrow, and all other items of income and expense shall be
\nprorated outside of escrow on the Closing Date by the parties. Without limiting
\nthe generality of the foregoing, the following items shall be prorated through
\nescrow as described above:<\/p>\n
(a) Current rents collected by Landlord under the Leases.
\nWith respect to any rent receivables carried by Landlord under the Leases as of
\nthe Closing, Tenant shall pay Landlord full value in immediately available funds
\nat the Closing and Landlord shall execute and deliver to Tenant at the Closing
\nan assignment of all of Landlord’s right, title and interest with respect
\nthereto.<\/p>\n
(b) Amounts paid or payable in respect of the Contracts
\nwhich Tenant assumes at the Closing.<\/p>\n
5.6. Closing Costs. Landlord shall pay the following closing
\ncosts: (i) all fees and costs for releasing all encumbrances, liens and security
\ninterests of record which are not Conditions of Title; and (ii) county
\ndocumentary or other transfer taxes payable upon recordation of the Deed. Tenant
\nshall pay the following closing costs: (a) the premium for Tenant’s policy of
\ntitle insurance; (b) any and all costs, fees, title insurance premiums and other
\ncharges payable in connection with any financing obtained by Tenant to acquire
\nthe Property, including all escrow fees relating to the funding and\/or
\nrecordation of such financing; and (c) all escrow fees. Each party shall pay
\none-half of any escrow cancellation fee charged by Title Company in connection
\nwith the purchase and sale of the Property in accordance with this Exhibit F.
\nAll other closing costs shall be paid by the parties in accordance with the
\ncustom then prevailing in San Mateo County.<\/p>\n
5.7. Security Deposits. With respect to all Leases which are in
\neffect at the Closing, Landlord shall give Tenant at the Closing, through
\nEscrow, a credit in the amount of all security deposits and other deposits then
\nheld by Landlord under such Leases.<\/p>\n
5.8. Possession. Subject to the rights of tenants under
\nthe Leases, Landlord shall deliver exclusive possession of the Property to
\nTenant at the Closing.<\/p>\n
74<\/p>\n
5.9. Closing Procedure. Title Company shall close escrow when it
\nis in a position to: (i) pay to Landlord, in immediately available funds, the
\namount of the Purchase Price, as such amount may be increased or decreased as a
\nresult of the allocation of the closing costs and prorations as specified in
\nParagraphs 5.5 and 5.6 and Landlord’s obligations with respect to security
\ndeposits as specified in Paragraph 5.7; and (ii) issue to Tenant the policy of
\ntitle insurance referred to in Paragraph 2.<\/p>\n
5.10. Escrow. Within five (5) days after Landlord and Tenant have
\nagreed upon the Agreed Terms, Tenant and Landlord shall deposit an executed
\ncounterpart of this Exhibit F with the Title Company and this Exhibit F shall
\nserve as instructions to the Title Company for consummation of the purchase and
\nsale contemplated hereby. Landlord and Tenant shall execute such supplemental
\nescrow instructions as may be appropriate to enable the Title Company to comply
\nwith the terms of this Exhibit F. provided such supplemental escrow instructions
\nare not in conflict with this Exhibit F. In the event of any conflict between
\nthe provisions of this Exhibit F and any supplementary escrow instructions
\nsigned by Tenant and Landlord, the terms of this Exhibit F shall control.<\/p>\n
5.11. Compliance. The Title Company shall comply with all
\napplicable federal, state and local reporting and withholding requirements
\nrelating to the close of the transactions contemplated herein. Without limiting
\nthe generality of the foregoing, to the extent the transactions contemplated by
\nthis Exhibit F involve a real estate transaction within the purview of Section
\n6045 of the Internal Revenue Code of 1986, as amended (the “Internal Revenue
\nCode”), Title Company shall have sole responsibility to comply with the
\nrequirements of Section 6045 of the Internal Revenue Code (and any similar
\nrequirements imposed by state or local law). For purposes of this Paragraph
\n5.11, Landlord’s tax identification number is 94-3236971. Title Company shall
\nhold Tenant, Landlord and their counsel free and harmless from and against any
\nand all liability, claims, demands, damages and costs, including reasonable
\nattorney’s fees and other litigation expenses, arising or resulting from the
\nfailure or refusal of Title Company to comply with such reporting requirements.<\/p>\n
6. Survival of Provisions. Notwithstanding any other provision of this
\nExhibit F to the contrary, each representation, warranty, covenant or agreement
\ncontained in this Exhibit F (including Tenant’s obligations pursuant to
\nParagraph 4.3) shall survive and be binding and enforceable following the
\nClosing and shall not be deemed to be merged into, or waived by delivery or
\nrecordation of, the Deed or any other instruments delivered at the Closing.<\/p>\n
7. Exchange. At the option of either party, such party may elect to
\nconsummate the transaction hereunder in whole or in part as a like-kind exchange
\npursuant to Section 1031 of the Internal Revenue Code of 1986, as amended. If
\neither party (the “Exchanging Party”) so elects, the other party (the
\n“Cooperating Party”) shall cooperate with the Exchanging Party, executing such
\ndocuments and taking such action as may be reasonably necessary in order to
\neffectuate this transaction as a like-kind exchange; provided, however, that (i)
\nthe Cooperating Party’s cooperation hereunder shall be without cost, expense or
\nliability to the Cooperating Party of any kind or character, including, without
\nlimitation, any attorneys’ fees, costs or expense incurred in connection with
\nthe review or preparation of documentation in order to effectuate such like-kind
\nexchange, and the Cooperating Party shall have no obligation to take title to
\nany real property;<\/p>\n
75
\n(ii) the Exchanging Party shall assume all risks in connection with the
\ndesignation, selection and setting of terms of the purchase or sale of any
\nexchange property; (iii) the Exchanging Party shall bear all costs and expenses
\nin connection with any such exchange transaction in excess of the costs and
\nexpenses which would have otherwise been incurred in acquiring or selling the
\nProperty by means of a straight purchase, so that the net effect to the
\nCooperating Party shall be identical to that which would have resulted had this
\nExhibit F closed on a purchase and sale; (iv) any documents to effectuate such
\nexchange transaction are consistent with the terms and conditions contained in
\nthis Exhibit F; and (v) the Exchanging Party shall indemnify, defend and hold
\nthe Cooperating Party harmless from any and all claims, demands, penalties,
\nloss, causes of action, suits, risks, liability, costs or expenses of any kind
\nor nature (including, without limitation, reasonable attorneys’ fees) which the
\nCooperating Party may incur or sustain, directly or indirectly, related to or in
\nconnection with, or arising out of, the consummation of this transaction as a
\nlike-kind exchange as contemplated hereunder.<\/p>\n
8. Deposit. Notwithstanding anything to the contrary set forth in the
\nAgreed Terms or this Exhibit F, within one (1) day after Landlord and Tenant
\nreach agreement on the Agreed Terms for Tenant’s purchase of the Property from
\nLandlord, Tenant shall deliver to Title Company a cashier’s check in the amount
\nof five percent (5%) of the Purchase Price (the “Deposit”), as an earnest money
\ndeposit on account of the Purchase Price. Title Company shall deposit the
\nDeposit in an interest-bearing account, and the term “Deposit” as used in this
\nExhibit F shall include any interest earned thereon.<\/p>\n
9. Liquidated Damages. TENANT ACKNOWLEDGES THAT THE CLOSING OF THE SALE
\nOF THE PROPERTY TO TENANT, ON THE TERMS AND CONDITIONS AND WITHIN THE TIME
\nPERIOD SET FORTH IN THIS EXHIBIT F AND THE LEASE, IS MATERIAL TO LANDLORD.
\nTENANT ALSO ACKNOWLEDGES THAT SUBSTANTIAL DAMAGES WILL BE SUFFERED BY LANDLORD
\nIF SUCH TRANSACTION IS NOT SO CONSUMMATED DUE TO TENANT’S DEFAULT. TENANT
\nFURTHER ACKNOWLEDGES THAT, AS OF THE DATE THE PARTIES REACH AGREEMENT ON THE
\nAGREED TERMS, LANDLORD’S DAMAGES WOULD BE EXTREMELY DIFFICULT OR IMPOSSIBLE TO
\nCOMPUTE IN LIGHT OF THE UNPREDICTABLE STATE OF THE ECONOMY AND OF GOVERNMENTAL
\nREGULATIONS, THE FLUCTUATING MARKET FOR REAL ESTATE AND REAL ESTATE LOANS OF ALL
\nTYPES, AND OTHER FACTORS WHICH DIRECTLY AFFECT THE VALUE AND MARKETABILITY OF
\nTHE PROPERTY. IN LIGHT OF THE FOREGOING AND ALL OF THE OTHER FACTS AND
\nCIRCUMSTANCES SURROUNDING THIS TRANSACTION, AND FOLLOWING NEGOTIATIONS BETWEEN
\nTHE PARTIES, TENANT AND LANDLORD AGREE THAT THE AMOUNT OF THE DEPOSIT REPRESENTS
\nA REASONABLE ESTIMATE OF THE DAMAGES WHICH LANDLORD WOULD SUFFER BY REASON OF
\nTENANT’S DEFAULT HEREUNDER. ACCORDINGLY, TENANT AND LANDLORD HEREBY AGREE THAT,
\nIN THE EVENT OF SUCH DEFAULT BY TENANT, LANDLORD MAY TERMINATE ITS OBLIGATIONS
\nUNDER PARAGRAPH 38 OF THE LEASE AND THIS EXHIBIT F BY GIVING NOTICE TO TENANT.
\nIN THE EVENT OF SUCH TERMINATION, LANDLORD SHALL RETAIN THE DEPOSIT AS
\nLIQUIDATED DAMAGES IN LIEU OF ANY OTHER CLAIM LANDLORD MAY HAVE AT LAW OR IN
\nEQUITY (INCLUDING, WITHOUT LIMITATION, SPECIFIC PERFORMANCE) ARISING<\/p>\n
76
\nBY REASON OF TENANT’S FAILURE TO PURCHASE THE PROPERTY PURSUANT TO THIS EXHIBIT
\nF. LANDLORD’S RETENTION OF THE DEPOSIT PURSUANT TO THIS PARAGRAPH 9 SHALL IN NO
\nWAY LIMIT ANY OF LANDLORD’S RIGHTS OR REMEDIES UNDER THE LEASE WITH RESPECT TO
\nANY DEFAULT BY TENANT UNDER THE LEASE. THE PARTIES HAVE INITIALED THIS PARAGRAPH
\n9 TO ESTABLISH THEIR INTENT SO TO LIQUIDATE DAMAGES. NOTWITHSTANDING THE
\nFOREGOING, NOTHING CONTAINED IN THIS PARAGRAPH 9 SHALL BE DEEMED TO LIMIT: (i)
\nTENANT’S OBLIGATIONS UNDER THE LEASE; OR (ii) TENANT’S INDEMNIFICATION
\nOBLIGATIONS CONTAINED IN THIS EXHIBIT F.<\/p>\n
Landlord’s Tenant’s
\nInitials Initial \/s\/
\n ———- ————<\/p>\n
TENANT:<\/p>\n
Dated: ,1998 AT HOME CORPORATION,
\n ——— a Delaware corporation<\/p>\n
By: \/s\/ Kenneth A. Goldman
\n —————————————
\n Its:
\n —————————————<\/p>\n
By:
\n —————————————
\n Its:
\n —————————————<\/p>\n
LANDLORD:<\/p>\n
Dated: MARTIN\/CAMPUS ASSOCIATES, L.P.,
\n ————- a Delaware limited partnership<\/p>\n
By: Martin\/Redwood Partners,
\n L.P., a California limited
\n partnership, its General Partner<\/p>\n
By: TMG Redwood LLC,
\n A California limited liability
\n Company
\n Its: General Partner<\/p>\n
By: The Martin Group of
\n Companies, Inc., a
\n California corporation,
\n Its General Partner<\/p>\n
By:
\n ———————-
\n Its:
\n ———————-<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6782],"corporate_contracts_industries":[9510],"corporate_contracts_types":[9583,9579],"class_list":["post-41731","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-at-home-corp","corporate_contracts_industries-technology__programming","corporate_contracts_types-land__ca","corporate_contracts_types-land"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/41731","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=41731"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41731"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41731"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41731"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}