\n55. INITIAL TENANT IMPROVEMENT
\n56. EARLY ACCESS
\n57. OPTION TO EXTEND TERM
\n58. SUBJECT TO GROUND LEASE
\n59. CONDITION TO EFFECTIVENESS
\n60. EARLY POSSESSION
\n61. COUNTERPARTS
\n62. HVAC REPLACEMENT
\n<\/c><\/s><\/table>\n iii<\/p>\n
LEASE
\n —–<\/p>\n
THIS LEASE is made this 13 day of September, 1999, by and between
\nARASTRADERO PROPERTY, a California general partnership (“Landlord”), and
\nALTAVISTA COMPANY, a Delaware corporation (“Tenant”).<\/p>\n
W I T N E S S E T H :<\/p>\n
Landlord leases to Tenant and Tenant leases from Landlord those certain
\npremises outlined in red on Exhibit A (the “Premises”) commonly known as 1070
\nArastradero Road, Palo Alto, California, which Landlord and Tenant hereby agree
\nconsists of approximately seventy-five thousand four hundred twenty (75,420)
\nsquare feet. As used herein the term “Project” shall mean and include all of the
\nland described in Exhibit B and all the buildings, improvements, fixtures and
\nequipment now or hereafter situated on said land.<\/p>\n
Tenant covenants, as a material part of the consideration for this lease,
\nto perform and observe each and all of the terms, covenants and conditions set
\nforth below, and this lease is made upon the condition of such performance and
\nobservance.<\/p>\n
1. USE<\/p>\n
Subject to the restrictions contained in paragraph 6 hereof, Tenant
\nshall use the Premises for (i) general office, research and development and
\nsales and (ii) other legal uses related to Tenant’s business, provided that such
\nother uses are permitted under all zoning laws and fire and building codes, the
\nground lease between the Board of Trustees of the Leland Stanford Junior
\nUniversity (“Stanford”) as the “Lessor” and Landlord as the “Lessee”, dated
\nFebruary 29, 1980 (the “Ground Lease”) and any conditions, covenants and
\nrestrictions applicable to the Project, and Landlord consents in writing to such
\nother uses, which consent shall not be unreasonably withheld. Tenant shall not
\nuse or permit the Premises to be used for any purpose which is not specifically
\npermitted above.<\/p>\n
2. TERM<\/p>\n
Lease Commencement and Expiration. The term shall commence on the
\n ———————————
\nLease Commencement Date (defined below) and end on the Lease Expiration Date
\n(defined below) unless sooner terminated as hereinafter provided). The “Lease
\nCommencement Date” shall be the earlier of (i) the date that is ninety (90)<\/p>\n
1<\/p>\n
days after the date that Landlord provides Tenant with access to the Premises in
\naccordance with paragraph 56 below, (ii) substantial completion of the Tenant
\nImprovements (defined in paragraph 55 below), or (iii) occupancy of the Premises
\nor any part thereof by Tenant and\/or Tenant’s employees for purposes other than
\nas permitted in paragraph 56 of this lease (regarding early access). The “Lease
\nExpiration Date” shall be the date that is ten (10) years after the Lease
\nCommencement Date.<\/p>\n
3. POSSESSION<\/p>\n
(a) If Landlord for any reason cannot provide Tenant with access to
\nthe Premises by the date that is thirty (30) days after the date that Landlord
\nand Tenant have both executed and delivered this lease, this lease shall not be
\nvoid or voidable, Landlord shall not be liable to Tenant for any loss or damage
\non account thereof and, unless Landlord’s failure to provide such access to
\nTenant is caused by the acts or omissions of Tenant, Tenant shall not be liable
\nfor rent until the Lease Commencement Date is determined in accordance with
\nparagraph 2. Notwithstanding the above, if Landlord is unable to deliver
\npossession of the Premises by the date that is thirty (30) days after the date
\nthat Landlord and Tenant have both executed and delivered this lease, plus the
\nnumber of days of delay caused by Tenant, or by force majeure (defined below)
\n(“Outside Delivery Date”), then Tenant may at its option, exercisable within ten
\n(10) days following such date, and as its sole remedy, terminate this lease;
\nprovided, however, (i) if Tenant fails to timely exercise such right within such
\nten (10) day period, Tenant’s right to terminate shall lapse and (ii) if Tenant
\nelects to terminate, Landlord may override Tenant’s election by notifying Tenant
\nwithin five (5) days after receipt of Tenant’s written notice of election to
\nterminate that Landlord has elected to override Tenant’s election, in which case
\nTenant as its sole remedy shall be entitled to one day of free rent for each day
\nof such delay in delivery of the Premises beyond the Outside Delivery Date (as
\nextended above, if applicable) and Landlord shall not be liable to Tenant for
\nany loss, damage or expense resulting from Landlord’s failure to deliver
\npossession. If Tenant elects to terminate this lease as provided in this
\nparagraph, all amounts deposited with Landlord by Tenant shall be returned to
\nTenant and Landlord shall not be liable to Tenant for any loss, damage or
\nexpense resulting from Landlord’s failure to deliver possession. For purposes of
\nthis lease, the term “force majeure” shall mean acts of God, strikes, lockouts,
\nlabor troubles, inability to procure labor or materials, fire, accident, riot,
\ncivil commotion, laws or regulations of general applicability, acts of tenant,
\nany cause that is not due to Landlord’s negligence or willful misconduct or any
\ncause that is beyond Landlord’s reasonable control.<\/p>\n
(b) Tenant’s inability or failure to take possession of the Premises
\nwhen access is tendered by Landlord (including,<\/p>\n
2<\/p>\n
without limitation, Tenant’s failure to satisfy the conditions precedent to such
\nearly access specified in paragraph 56 below) shall not delay the commencement
\nof the term of this lease or Tenant’s obligation to pay rent. Tenant
\nacknowledges that Landlord shall incur significant expenses upon the execution
\nof this lease, even if Tenant never takes possession of the Premises, including,
\nwithout limitation, brokerage commissions and fees, and legal and other
\nprofessional fees. Tenant acknowledges that all of said expenses shall be taken
\ninto account in measuring Landlord’s damages should Tenant breach any of the
\nterms of this lease. Notwithstanding the above, if Landlord is unable to deliver
\naccess to the Premises as required under paragraph 56 of this lease by the date
\nthat is ninety (90) days from the date of execution and delivery of this lease
\nby both Landlord and Tenant plus the number of days of delay caused by Tenant,
\nor by force majeure (defined below), then Tenant may at its option, exercisable
\nwithin ten (10) days following such date, and as its sole remedy, terminate this
\nlease; provided, however, if Tenant fails to timely exercise such right within
\nsuch ten (10) day period, Tenant’s right to terminate shall lapse. If Tenant
\nelects to terminate this lease as provided in this paragraph, all amounts
\ndeposited with Landlord by Tenant shall be returned to Tenant and Landlord shall
\nnot be liable to Tenant for any loss, damage or expense resulting from
\nLandlord’s failure to deliver possession. For purposes of this lease, the term
\n“force majeure” shall mean acts of God, strikes, lockouts, labor troubles,
\ninability to procure labor or materials, fire, accident, riot, civil commotion,
\nlaws or regulations of general applicability, acts of tenant, any cause that is
\nnot due to Landlord’s negligence or willful misconduct or any cause that is
\nbeyond Landlord’s reasonable control.<\/p>\n
4. MONTHLY RENT<\/p>\n
(a) Basic Rent. Tenant shall pay to Landlord as basic rent for the
\n ———-
\nPremises, in advance and subject to adjustment as provided in paragraph 5, the
\nsum of Two Hundred Fifty-Seven Thousand Nine Hundred Thirty-Six and 40\/100
\nDollars ($257,936.40) on or before the first day of the first full calendar
\nmonth of the term after the Lease Commencement Date and on or before the first
\nday of each and every successive calendar month. Basic rent for any partial
\nmonth shall be payable in advance and shall be prorated based on the actual
\nnumber of days during the lease term occurring in such month divided by the
\ntotal number of days in such month.<\/p>\n
(b) Common Area Charges. In addition to the above basic rent and as
\n ——————-
\nadditional rent, Tenant shall pay to Landlord, subject to adjustments and
\nreconciliation as provided in paragraph 16 of this lease, the sum of Twenty-Nine
\nThousand Two Hundred Eighty-Six and 17\/100 Dollars ($29,286.17) on or before the
\nfirst day of the first full calendar month of the term after the Lease
\nCommencement Date and on the first day of each and<\/p>\n
3<\/p>\n
every successive calendar month, said sum representing Tenant’s estimated
\npayment of its percentage share of common area charges as provided for in
\nparagraph 16 of this lease. Payment of common area charges for any partial month
\nshall be payable in advance and shall be prorated based on the actual number of
\ndays during the lease term occurring in such month divided by the total number
\nof days in such month.<\/p>\n
(c) Manner and Place of Payment. All payments of basic rent and
\n —————————
\ncommon area charges shall be paid to Landlord, without deduction or offset, in
\nlawful money of the United States of America, at the office of Landlord at 3945
\nFreedom Circle, Suite 640, Santa Clara, California 95054, or to such other
\nperson or place as Landlord may from time to time designate in writing.<\/p>\n
(d) First Month’s Rent. Concurrently with Tenant’s execution of this
\n ——————
\nlease, Tenant shall deposit with Landlord the sum of Two Hundred Eighty-Seven
\nThousand Two Hundred Twenty Two and 57\/100 Dollars ($287,222.57) to be applied
\nagainst the basic rent and common area charges for the first lease month of the
\nterm.<\/p>\n
(e) Security Deposit. Concurrent with Tenant’s execution of this
\n —————-
\nlease, Tenant shall deliver to Landlord an unconditional and irrevocable letter
\nof credit (“Letter of Credit”) in the amount of Four Million Dollars
\n($4,000,000) to secure the faithful performance by Tenant of all of the terms,
\ncovenants and conditions of this lease to be kept and performed by Tenant. The
\nLetter of Credit shall be issued by a bank (the “L-C Bank”) approved by Landlord
\nand shall be in a form that is reasonably acceptable to Landlord in Landlord’s
\nreasonable discretion. The L-C Bank shall be a bank that accepts deposits,
\nmaintains accounts, has a local Santa Clara office that will negotiate the
\nLetter of Credit or if no local office then the Letter of Credit shall provide
\nfor draws by Landlord upon delivery of the written draw request by courier or by
\nfax (to be confirmed by telephone and with original to follow within three (3)
\nbusiness days) and payment to be made by wire transfer to Landlord’s account as
\ndirected by Landlord upon receipt of the original or fax request. The deposits
\nof the L-C Bank shall be insured by the Federal Deposit Insurance Corporation.
\nTenant shall pay all expenses, points, or fees incurred by Tenant in obtaining
\nthe Letter of Credit. The Letter of Credit shall be available by draft at sight,
\nsubject only to receipt by the bank of a notarized statement from Birk S.
\nMcCandless or Steven E. Sund or other authorized representative of Landlord
\nrequesting such draw. The Letter of Credit shall by its terms expire not less
\nthan one year from the date issued, and shall provide for automatic one (1) year
\nextensions unless Landlord is notified in writing not less than ninety (90) days
\nprior to such expiration from the L-C Bank that the Letter of Credit will not be
\nextended. In any event, unless Tenant deposits with Landlord a cash security
\ndeposit of like amount as permitted below, said Letter of Credit shall be
\nrenewed by Tenant for successive periods of<\/p>\n
4<\/p>\n
not less than one year each to and including the date that is sixty (60) days
\nafter the expiration date of this lease. The bank’s written renewal of the
\nLetter of Credit shall in each case be delivered to Landlord not less than
\nninety (90) days prior to the expiration date of the then outstanding Letter of
\nCredit. Tenant’s failure to so deliver, renew (including specifically but not
\nlimited to the delivery to Landlord of such renewal not less than ninety (90)
\ndays prior to expiration of the Letter of Credit) and maintain such Letter of
\nCredit, shall be a material breach of this lease.<\/p>\n
If Tenant fails to perform any provision of this lease to be performed
\nby Tenant after notice and the expiration of any applicable cure period
\n(including, without limitation, providing, renewing and maintaining the Letter
\nof Credit as required above, or payment of rent or any other amounts due
\nLandlord under this lease), Landlord may, without prejudice to any other remedy
\navailable to Landlord, immediately and without further notice draw down that
\nportion of the Letter of Credit which is necessary to (i) pay for any rent or
\nother sums then due, (ii) pay or reimburse Landlord for any costs or fees
\nincurred by Landlord in exercising its rights under this lease, or (iii)
\ncompensate Landlord for any loss, damage, cost or expense incurred by Landlord
\ndue to Tenant’s default. Upon written notice from Landlord to Tenant of the
\namount of any partial draw, Tenant shall within five (5) business days deliver
\nto Landlord an additional letter of credit as necessary to reinstate the full
\namount of the security deposit required hereunder. If Tenant fails to provide
\nsuch replacement Letter(s) of Credit, Landlord may without further notice draw
\ndown the entire amount of the Letter(s) of Credit, which amounts shall be held
\nby Landlord as a cash security deposit for the faithful performance by Tenant of
\nall of the terms, covenants and conditions of this lease to be kept and
\nperformed by Tenant. If Tenant defaults with respect to any provision of this
\nlease, including, but not limited to, the default that precipitated the draw on
\nthe Letter of Credit, Landlord may (but shall not be required to) use, apply or
\nretain all or any part of this security deposit for the payment of any amount
\nwhich Landlord may spend by reason of Tenant’s default or to compensate Landlord
\nfor any other actual expense, loss or damage which Landlord may suffer by reason
\nof Tenant’s default. If any portion of said deposit is so used, Tenant shall,
\nwithin five (5) days after written demand therefor, deposit cash with Landlord
\nin the amount sufficient to restore the security deposit to its original amount
\nand Tenant’s failure to do so shall be a material breach of this lease. Landlord
\nshall not be required to keep this security deposit separate from its general
\nfunds and Tenant shall not be entitled to interest on such deposit. If Tenant is
\nnot in default at the expiration or termination of this lease, the security
\ndeposit or any balance thereof shall be returned to Tenant after Tenant has
\nvacated the Premises. In the event of termination of Landlord’s interest in this
\nlease, Landlord shall transfer said deposit to Landlord’s successor in<\/p>\n
5<\/p>\n
interest, and Tenant agrees that Landlord shall thereupon be released from
\nliability for the return of such deposit or any accounting therefor.<\/p>\n
In the event that (i) Tenant goes public and raises a minimum of
\n$150,000,000 (net of expenses) as a result of such initial public offering, and
\n(ii) Tenant thereafter maintains a market capitalization of not less than $1.5
\nBillion for four consecutive quarters, then the amount of the Letter of Credit
\nrequired under this lease shall be reduced to $2,000,000.<\/p>\n
(f) Application of Payments. All payments received by Landlord from Tenant
\n ———————–
\nmay be applied by Landlord in Landlord’s sole discretion to the oldest payment
\nobligation(s) owed by Tenant to Landlord or in such other order as Landlord
\ndetermines in Landlord’s sole and absolute discretion. No designation by Tenant,
\neither in a separate writing or on a check or money order, shall modify this
\nclause or have any force or effect. Notwithstanding the above, Landlord’s
\ndetermination not to apply such payments to the oldest payment obligations first
\nas specified above shall not constitute a waiver by Landlord with respect to
\nLandlord’s claims against Tenant for such prior payment obligation(s) of Tenant
\nor Landlord’s right to apply future payments to such prior payment obligation(s)
\nof Tenant in such order as Landlord may determine in Landlord’s sole and
\nabsolute discretion.<\/p>\n
5. ADJUSTMENT OF BASIC RENT<\/p>\n
The basic rent provided for in paragraph 4(a) shall be adjusted
\nperiodically and the monthly basic rent for each period shall be as set forth
\nbelow:<\/p>\n
Lease Months 1 – 12 $257,936.40 per month<\/p>\n
Lease Months 13 – 24 $266,964.17 per month<\/p>\n
Lease Months 25 – 36 $276,307.92 per month<\/p>\n
Lease Months 37 – 48 $285,978.70 per month<\/p>\n
Lease Months 49 – 60 $295,987.95 per month<\/p>\n
Lease Months 61 – 72 $306,347.53 per month<\/p>\n
Lease Months 73 – 84 $317,069.69 per month<\/p>\n
Lease Months 85 – 96 $328,167.13 per month<\/p>\n
Lease Months 97 – 108 $339,652.98 per month<\/p>\n
Lease Months 109 – 120 $351,540.84 per month<\/p>\n
6<\/p>\n
6. RESTRICTION ON USE<\/p>\n
Tenant shall not do or permit to be done in or about the Premises or
\nthe Project, nor bring or keep or permit to be brought or kept in or about the
\nPremises or Project, anything which is prohibited by or will in any way increase
\nthe existing rate of, or otherwise affect, fire or any other insurance covering
\nthe Project or any part thereof, or any of its contents, or will cause a
\ncancellation of any insurance covering the Project or any part thereof, or any
\nof its contents. Tenant shall not do or permit to be done anything in or about
\nthe Premises or the Project which will constitute waste or which will in any way
\nobstruct or interfere with the rights of other tenants or occupants of the
\nProject or injure or annoy them, or use or allow the Premises to be used for any
\nunlawful purpose, nor shall Tenant cause, maintain or permit any nuisance in or
\nabout the Premises or the Project. No loudspeaker or other device, system or
\napparatus which can be heard outside the Premises shall be used in or at the
\nPremises without the prior written consent of Landlord. Tenant shall not use the
\nPremises in any manner that will cause or emit any objectionable odor, noise or
\nlight into the adjoining premises or Common Area. Tenant shall not do anything
\non the Premises that will cause damage to the Project and Tenant shall not
\noverload the floor capacity of the Premises or the Project. No machinery,
\napparatus or other appliance shall be used or operated in or on the Premises
\nthat will in any manner injure, vibrate or shake the Premises. Landlord shall be
\nthe sole judge, in its reasonable discretion, of whether such odor, noise, light
\nor vibration is such as to violate the provisions of this paragraph. No waste
\nmaterials or refuse shall be dumped upon or permitted to remain upon any part of
\nthe Premises or the Project except in trash containers placed inside exterior
\nenclosures designated for that purpose by Landlord, or where otherwise
\ndesignated by Landlord; and no toxic or hazardous materials shall be disposed of
\nthrough the plumbing or sewage system. No materials, supplies, equipment,
\nfinished products or semi-finished products, raw materials or articles of any
\nnature shall be stored or permitted to remain outside of the building proper. No
\nretail sales shall be made on the Premises. Tenant shall comply with any
\ncovenant, condition or restriction (“C.C. & R.s”) affecting the Premises.<\/p>\n
7. COMPLIANCE WITH LAWS<\/p>\n
Tenant represents and warrants that upon completion of the Tenant
\nImprovements, the Tenant Improvements as constructed will be in compliance with
\nall laws, statutes, ordinances and governmental rules, regulations and
\nrequirements of federal, state, county, municipal and other governmental
\nauthorities. Tenant shall, in connection with its use and occupation of the
\nPremises, at its sole cost and expense, promptly observe and comply with (i) all
\nlaws, statutes, ordinances and governmental rules, regulations and requirements
\nof federal state, county,<\/p>\n
7<\/p>\n
municipal and other governmental authorities, now or hereafter in effect, which
\nshall impose any duty upon Landlord or Tenant with respect to the use, occupancy
\nor alteration to the Premises (except to the extent of Landlord’s obligations
\npursuant to Section 9 below), (ii) with the requirements of any board of fire
\nunderwriters or other similar body now or hereafter constituted and (iii) with
\nany direction or occupancy certificate issued pursuant to law by any public
\nauthority; provided, however, that no such failure shall be deemed a breach of
\nthese provisions if Tenant, immediately upon notification, commences to remedy
\nor rectify said failure. The judgment of any court of competent jurisdiction or
\nthe admission of Tenant in any action against Tenant (whether or not Landlord is
\na party thereto) that Tenant has violated any such law, statute, ordinance or
\ngovernmental rule, regulation, requirement, direction or provision, shall be
\nconclusive of that fact as between Landlord and Tenant. This lease shall remain
\nin full force and effect notwithstanding any loss of use or other effect on
\nTenant’s enjoyment of the Premises by reason of any governmental laws, statutes,
\nordinances, rules, regulations and requirements now or hereafter in effect.<\/p>\n
8. ALTERATIONS<\/p>\n
Tenant shall not make or suffer to be made any alteration, addition or
\nimprovement to or of the Premises or any part thereof (collectively referred to
\nherein as “alterations”) without (i) the prior written consent of Landlord, (ii)
\na valid building permit issued by the appropriate governmental authority and
\n(iii) otherwise complying with all applicable laws, regulations and requirements
\nof governmental agencies having jurisdiction and with the rules, regulations and
\nrequirements of any board of fire underwriters or similar body. Notwithstanding
\nthe foregoing, Tenant may make non-structural alterations costing less than
\n$20,000 per alteration and less than $100,000 in the aggregate in any one-year
\nperiod of the term without the prior written consent of Landlord, provided that
\nprior to making such alteration Tenant informs Landlord in writing of the nature
\nof the alteration, the cost thereof and the contractor engaged or proposed to be
\nengaged to perform such work, and provided further that all such work complies
\nwith clauses (ii) and (iii) above. Landlord’s consent to any requested
\nalteration shall not create on the part of Landlord or cause Landlord to incur
\nany responsibility or liability for such alteration’s compliance with all laws,
\nrules and regulations of federal, state, county, municipal and other
\ngovernmental authorities. Any alteration made by Tenant (excluding moveable
\nfurniture and trade fixtures not attached to the Premises) shall at once become
\na part of the Premises and belong to Landlord, subject to Landlord’s right to
\nrequire removal and restoration as specified herein. Without limiting the
\nforegoing, all heating, lighting, electrical (including all wiring, conduit,
\noutlets, drops, buss ducts, main and subpanels), air conditioning, permanent
\npartitioning, drapery and carpet installations made by Tenant, regardless of how<\/p>\n
8<\/p>\n
attached to the Premises, together with all other alterations that have become
\nan integral part of the Project in which the Premises are a part, shall be and
\nbecome part of the Premises and belong to Landlord upon installation and shall
\nnot be deemed trade fixtures and, subject to Landlord’s right to require removal
\nand restoration as specified herein, shall remain upon and be surrendered with
\nthe Premises at the termination of this lease. Notwithstanding the foregoing,
\nthe installation of moveable equipment, furniture and trade fixtures shall not
\nbe deemed alterations and shall remain Tenant’s personal property.<\/p>\n
Regardless of whether Landlord’s consent is required in connection
\nwith the making of any alteration by Tenant, if Landlord consents to the making
\nof any alteration by Tenant, the same shall be made by Tenant at its sole risk,
\ncost and expense and only after Landlord’s written approval of any contractor or
\nperson selected by Tenant for that purpose, such approval not to be unreasonably
\nwithheld, conditioned or delayed. Tenant shall, if required by Landlord, secure
\nat Tenant’s cost a completion and lien indemnity bond for such work. Upon the
\nexpiration or sooner termination of the term, Landlord may, at its sole option,
\nrequire Tenant, at Tenant’s sole cost and expense, to promptly remove any such
\nalteration made by Tenant and designated by Landlord to be removed, repair any
\ndamage to the Premises caused by such removal and restore the Premises to their
\ncondition prior to Tenant’s alteration. Upon Tenant’s request made at the time
\nthat Tenant requests Landlord’s consent to any particular alteration, Landlord
\nshall notify Tenant whether Landlord will waive its right to require removal and
\nrestoration as provided above. Any moveable furniture and equipment or trade
\nfixtures remaining on the Premises at the expiration or other termination of the
\nterm shall become the property of the Landlord; provided, however, in addition
\nto all other remedies available to Landlord at law or in equity, Landlord may
\n(i) require Tenant to remove same or (ii) remove same at Tenant’s cost, and
\nTenant shall be liable to Landlord for all damages incurred by Landlord related
\nthereto.<\/p>\n
If during the term any alteration, addition or change of the Premises
\nor the Project is required by law, regulation, ordinance or order of any public
\nauthority, Tenant, at its sole cost and expense, shall promptly make the same.<\/p>\n
9. REPAIR AND MAINTENANCE<\/p>\n
Landlord represents that on the date that Landlord delivers the
\nPremises to Tenant pursuant to paragraph 56 below (Early Access), the building
\nsystems (i.e. plumbing, mechanical and electrical systems, but not HVAC
\nequipment) in the Premises shall be in good working order and the roof will be
\nwatertight. In addition, Landlord will complete the repairs as specified on
\nExhibit F attached hereto. Tenant has inspected the Premises and acknowledges
\nthat all building systems are in good working order;<\/p>\n
9<\/p>\n
except the HVAC system which shall be repaired by Landlord to good operating
\ncondition (see Cal Air report dated July 28, 1999). Tenant has inspected the
\nPremises and accepts the Premises in its current condition and acknowledges that
\nthe Premises are in good and sanitary order, condition and repair. Except as
\nexpressly provided below, Tenant shall at its sole cost keep and maintain the
\nentire Premises and every part thereof including, without limitation, the
\nwindows, window frames, plate glass, glazing, elevators within the Premises,
\ntruck doors, doors and all door hardware, the interior walls and partitions,
\nlighting and the electrical, mechanical, and plumbing systems.<\/p>\n
Subject to the provisions of paragraph 17, Landlord shall keep and maintain
\nthe roof, structural elements, exterior walls of the buildings constituting the
\nProject, the heating and air conditioning systems, and the Common Area
\n(including the parking areas, landscaping and all amenities located outside the
\nbuilding) in good order and repair. Tenant waives all rights under and benefits
\nof California Civil Code Sections 1932(1), 1941, and 1942 and under any similar
\nlaw, statute or ordinance now or hereafter in effect. The cost of the repairs
\nand maintenance which are the obligation of Landlord hereunder, including
\nwithout limitation, maintenance contracts and supplies, materials, equipment and
\ntools used in such repairs and maintenance shall be a common area charge and
\nTenant shall pay its percentage share of such costs to Landlord as provided in
\nparagraph 16; provided, however, that if any repairs or maintenance is required
\nbecause of the negligence or willful misconduct of Tenant, or its agents,
\nemployees or invitees, Tenant shall pay to Landlord upon demand the full cost of
\nsuch repairs or maintenance. Notwithstanding the above, the cost of roof
\nreplacement and structural repairs to the building shall be amortized over its
\nuseful life (including interest at a rate of two percent (2%) over the then
\ncurrent Prime Rate as published by the Wall Street Journal) and the amortized
\ncost shall be included within common area charges and Tenant shall pay its
\nproportionate share thereof as provided in paragraph 16 of this lease.<\/p>\n
10. LIENS<\/p>\n
Tenant shall keep the Premises and the Project free from any liens
\narising out of any work performed, materials furnished or obligations incurred
\nby Tenant, its agents, employees or contractors. Upon Tenant’s receipt of a
\npreliminary twenty (20) day notice filed by a claimant pursuant to California
\nCivil Code Section 3097, Tenant shall immediately provide Landlord with a copy
\nof such notice. Should any lien be recorded against the Project, Tenant shall
\ngive immediate notice of such lien to Landlord. In the event that Tenant shall
\nnot, within ten (10) business days following receipt of notice of the imposition
\nof such lien, cause the same to be released of record, Landlord shall have, in
\naddition to all other remedies provided herein and by law, the right, but no
\nobligation, to cause the same to be<\/p>\n
10<\/p>\n
released by such means as it shall deem proper, including payment of the claim
\ngiving rise to such lien. All sums paid by Landlord for such purpose, and all
\nexpenses (including attorneys’ fees) incurred by it in connection therewith,
\nshall be payable to Landlord by Tenant on demand with interest at the rate of
\ntwelve percent (12%) per annum or the maximum rate permitted by law, whichever
\nis less. Landlord shall have the right at all times to post and keep posted on
\nthe Premises any notices permitted or required by law, or which Landlord shall
\ndeem proper for the protection of Landlord, the Premises and the Project and any
\nother party having an interest therein, from mechanics’ and materialmen’s liens
\nand like liens. Tenant shall give Landlord at least ten (10) days prior notice
\nof the date of commencement of any construction on the Premises in order to
\npermit the posting of such notices. In the event Tenant is required to post an
\nimprovement bond with a public agency in connection with any work performed by
\nTenant on or to the Premises, Tenant shall include Landlord as an additional
\nobligee.<\/p>\n
11. INSURANCE<\/p>\n
Tenant, at its sole cost and expense, shall keep in force during the
\nterm (i) commercial general liability and property damage insurance with a
\ncombined single limit of at least $5,000,000 per occurrence insuring against
\npersonal or bodily injury to or death of persons occurring in, on or about the
\nPremises or Project and any and all liability of the insureds with respect to
\nthe Premises or arising out of Tenant’s maintenance, use or occupancy of the
\nPremises and all areas appurtenant thereto, (ii) direct physical loss-special
\ninsurance covering the leasehold improvements in the Premises and all of
\nTenant’s equipment, trade fixtures, appliances, furniture, furnishings, and
\npersonal property from time to time located in, on or about the Premises, with
\ncoverage in the amount of the full replacement cost thereof, and (iii) Worker’s
\nCompensation Insurance as required by law, together with employer’s liability
\ncoverage with a limit of not less than $1,000,000 for bodily injury for each
\naccident and for bodily injury by disease for each employee. Tenant’s commercial
\ngeneral liability and property damage insurance and Tenant’s Workers
\nCompensation Insurance shall be endorsed to provide that said insurance shall
\nnot be canceled or reduced except upon at least thirty (30) days prior written
\nnotice to Landlord. Further, Tenant’s commercial general liability and property
\ndamage insurance shall be primary and shall be endorsed to provide that Landlord
\nand McCandless Management Corporation, and their respective partners, officers,
\ndirectors and employees and such other persons or entities as directed from time
\nto time by Landlord shall be named as additional insureds for all liability
\nusing ISO Bureau Form CG20111185 (or a successor form) or such other endorsement
\nform reasonably acceptable to Landlord; shall contain a severability of interest
\nclause and a cross-liability endorsement; shall be endorsed to provide that the
\nlimits and aggregates apply per<\/p>\n
11<\/p>\n
location using ISO Bureau Form CG25041185 (or a successor form) or such other
\nendorsement form reasonably acceptable to Landlord; and shall be issued by an
\ninsurance company admitted to transact business in the State of California and
\nrated A VIII or better in Best’s Insurance Reports (or successor report). The
\ndeductibles for all insurance required to be maintained by Tenant hereunder
\nshall be reasonably satisfactory to Landlord. The commercial general liability
\ninsurance carried by Tenant shall specifically insure the performance by Tenant
\nof the indemnification provisions set forth in paragraph 18 of this lease
\nprovided, however, nothing contained in this paragraph 11 shall be construed to
\nlimit the liability of Tenant under the indemnification provisions set forth in
\nsaid paragraph 18, except to the extent Landlord has waived its rights pursuant
\nto this paragraph. If Landlord or any of the additional insureds named on any of
\nTenant’s insurance, have other insurance which is applicable to the covered loss
\non a contributing, excess or contingent basis, the amount of the Tenant’s
\ninsurance company’s liability under the policy of insurance maintained by Tenant
\nshall not be reduced by the existence of such other insurance. Any insurance
\ncarried by Landlord or any of the additional insureds named on Tenant’s
\ninsurance policies shall be excess and non-contributing with the insurance so
\nprovided by Tenant.<\/p>\n
Tenant shall, prior to the commencement of the term and at least
\nthirty (30) days prior to any renewal date of any insurance policy required to
\nbe maintained by Tenant pursuant to this paragraph, provide Landlord with a
\ncompleted Certificate of Insurance, using a form acceptable in Landlord’s
\nreasonable judgment, attaching thereto copies of all endorsements required to be
\nprovided by Tenant under this lease. Tenant agrees to increase the coverage or
\notherwise comply with changes in connection with said commercial general
\nliability, property damage, direct physical loss and Worker’s Compensation
\nInsurance as Landlord or Landlord’s lender may from time to time reasonably
\nrequire.<\/p>\n
Landlord shall obtain and keep in force a policy or policies of
\ninsurance covering loss or damage to the Premises and Project, in the amount of
\nthe full replacement value thereof, providing protection against those perils
\nincluded within the classification of “all risk” insurance, with increased cost
\nof reconstruction and contingent liability (including demolition), plus a policy
\nof rental income insurance in the amount of one hundred percent (100%) of twelve
\n(12) months’ rent (including sums paid as additional rent) and such other
\ninsurance as Landlord or Landlord’s lender may from time to time require.
\nLandlord may, but shall not be obligated to, obtain flood and\/or earthquake
\ninsurance. Landlord shall have no liability to Tenant if Landlord elects not to
\nobtain flood and\/or earthquake insurance. Landlord shall keep in force during
\nthe term commercial general liability and property damage insurance with a
\ncombined single limit of at least $5,000,000 per occurrence<\/p>\n
12<\/p>\n
insuring against personal or bodily injury to or death of persons occurring in,
\non or about the Project and any and all liability of Landlord with respect to
\nthe Project or arising out of Landlord’s maintenance, use or occupancy of the
\nProject. The cost of all such insurance purchased by Landlord, plus any charges
\nfor deferred payment of premiums and the amount of any deductible incurred upon
\nany covered loss within the Project, shall be common area charges and Tenant
\nshall pay to Landlord its percentage share of such costs as provided in
\nparagraph 16. If the cost of insurance is increased due to Tenant’s particular
\nuse of the Premises (other than that which is typical for office and research
\nand development use), then Tenant shall pay to Landlord upon demand the full
\ncost of such increase.<\/p>\n
Landlord and Tenant hereby mutually waive any and all rights of
\nrecovery against one another for real or personal property loss or damage
\noccurring to the Premises or the Project, or any part thereof, or to any
\npersonal property therein, from perils insured against under fire and extended
\ninsurance and any other property insurance policies existing for the benefit of
\nthe respective parties so long as such insurance permits waiver of liability and
\ncontains a waiver of subrogation without additional premiums.<\/p>\n
If Tenant does not take out and maintain insurance as required
\npursuant to this paragraph 11, then upon five (5) business days written notice
\nfrom Landlord, Landlord may, but shall not be obligated to, take out the
\nnecessary insurance and pay the premium therefor, and Tenant shall repay to
\nLandlord promptly on demand, as additional rent, the amount so paid. In
\naddition, Landlord may recover from Tenant and Tenant agrees to pay, as
\nadditional rent, any and all reasonable expenses (including attorney fees) and
\nactual damages which Landlord may sustain by reason of the failure of Tenant to
\nobtain and maintain such insurance, it being expressly declared that the
\nexpenses and damages of Landlord shall not be limited to the amount of the
\npremiums thereon.<\/p>\n
12. UTILITIES AND SERVICE<\/p>\n
Tenant shall pay for all water, gas, light, heat, power, electricity,
\ntelephone, trash pickup, sewer charges and all other services supplied to or
\nconsumed on the Premises. In the event that any service is not separately
\nmetered or billed to the Premises, the cost of such utility service or other
\nservice shall be a common area charge and Tenant shall pay its percentage share
\nof such cost to Landlord as provided in paragraph 16. In addition, the cost of
\nall utilities and services furnished by Landlord to the Common Area shall be a
\ncommon area charge and Tenant shall pay its percentage share of such cost to
\nLandlord as provided in paragraph 16.<\/p>\n
13<\/p>\n
If Tenant’s use of any such utility or service is materially in excess
\nof the average furnished to the other tenants of the Project, and such utility
\nor service is not separately metered, then Tenant shall pay to Landlord upon
\ndemand, as additional rent, the full cost of such excess use, as reasonably
\ndetermined by Landlord, or Landlord may cause such utility or service to be
\nseparately metered, in which case Tenant shall pay the full cost of such utility
\nor service and reimburse Landlord upon demand for the cost of installing the
\nseparate meter.<\/p>\n
Landlord shall not be liable for, and Tenant shall not be entitled to
\nany abatement or reduction of rent by reason of, the failure of any person or
\nentity to furnish any of the foregoing services when such failure is caused by
\naccident, breakage, repairs, strikes, lockouts or other labor disturbances or
\nlabor disputes of any character, governmental moratoriums, regulations or other
\ngovernmental actions, or by any other cause, similar or dissimilar, beyond the
\nreasonable control of Landlord. In addition, Tenant shall not be relieved from
\nthe performance of any covenant or agreement in this lease because of any such
\nfailure, and no eviction of Tenant shall result from such failure.<\/p>\n
Notwithstanding anything to the contrary in this lease, if: (a) any
\nservices or utilities are interrupted or discontinued due to Landlord’s gross
\nnegligence or willful misconduct and the Premises are untenantable as a result
\nof such interruption or discontinuance, and (b) Tenant shall have given written
\nnotice respecting such interruption or discontinuance to Landlord, and Landlord
\nshall have failed to cure such interruption or discontinuance within three (3)
\nbusiness days after receiving such notice, then Tenant shall as its sole remedy
\nagainst Landlord, be entitled to an equitable abatement of rent to the extent
\nthat Tenant’s use of the Premises is thereafter prevented by such interruption
\nor discontinuance.<\/p>\n
13. TAXES AND OTHER CHARGES<\/p>\n
All real estate taxes and assessments and other taxes, fees and
\ncharges of every kind or nature, foreseen or unforeseen, which are levied,
\nassessed or imposed upon Landlord and\/or against the Premises, building, Common
\nArea or Project, or any part thereof by any federal, state, county, regional,
\nmunicipal or other governmental or quasi-public authority, together with any
\nincreases therein for any reason, shall be a common area charge and Tenant shall
\npay its percentage share of such costs to Landlord as provided in paragraph 16.
\nBy way of illustration and not limitation, “other taxes, fees and charges” as
\nused herein include any and all taxes payable by Landlord (other than state and
\nfederal personal or corporate income taxes measured by the net income of
\nLandlord from all sources, and premium taxes), whether or not now customary or
\nwithin the contemplation of the<\/p>\n
14<\/p>\n
parties hereto, (i) upon, allocable to, or measured by the rent payable
\nhereunder, including, without limitation, any gross income or excise tax levied
\nby the local, state or federal government with respect to the receipt of such
\nrent, (ii) upon or with respect to the possession, leasing, operation,
\nmanagement, maintenance, alteration, repair, use or occupancy by Tenant of the
\nPremises or any part thereof, (iii) upon or measured by the value of Tenant’s
\npersonal property or leasehold improvements located in the Premises, (iv) upon
\nthis transaction or any document to which Tenant is a party creating or
\ntransferring an interest or estate in the Premises, (v) upon or with respect to
\nvehicles, parking or the number of persons employed in or about the Project, and
\n(vi) any tax, license, franchise fee or other imposition upon Landlord which is
\notherwise measured by or based in whole or in part upon the Project or any
\nportion thereof. If Landlord contests any such tax, fee or charge, the cost and
\nexpense incurred by Landlord thereby (including, but not limited to, costs of
\nattorneys and experts) shall also be common area charges and Tenant shall pay
\nits percentage share of such costs to Landlord as provided in paragraph 16. Any
\ntax adjustments made as a result of any such contest shall be applied to the
\ncommon area charges for the applicable period and Tenant shall be entitled to
\nits proportionate share of any reduction in common area charges resulting
\ntherefrom. In the event the Premises and any improvements installed therein by
\nTenant or Landlord are valued by the assessor disproportionately higher than
\nthose of other tenants in the building or Project or in the event alterations or
\nimprovements are made to the Premises, Tenant’s percentage share of such taxes,
\nassessments, fees and\/or charges shall be readjusted upward accordingly and
\nTenant agrees to pay such readjusted share. Such determination shall be made by
\nLandlord from the respective valuations assigned in the assessor’s work sheet or
\nsuch other information as may be reasonably available and Landlord’s
\ndetermination thereof shall be conclusive.<\/p>\n
Tenant agrees to pay, before delinquency, any and all taxes levied or
\nassessed during the term hereof upon Tenant’s equipment, furniture, fixtures and
\nother personal property located in the Premises, including carpeting and other
\nproperty installed by Tenant notwithstanding that such carpeting or other
\nproperty has become a part of the Premises. If any of Tenant’s personal property
\nshall be assessed with the Project, Tenant shall pay to Landlord, as additional
\nrent, the amount attributable to Tenant’s personal property within ten (10) days
\nafter receipt of a written statement from Landlord setting forth in reasonable
\ndetail the amount of such taxes, assessments and public charges attributable to
\nTenant’s personal property.<\/p>\n
14. ENTRY BY LANDLORD<\/p>\n
Landlord reserves, and at all reasonable times, upon reasonable
\nadvance notice shall have, the right to enter the<\/p>\n
15<\/p>\n
Premises (i) to inspect the Premises, (ii) to supply services to be provided by
\nLandlord hereunder, (iii) to show the Premises to prospective purchasers,
\nlenders or tenants and to put ‘for sale’ or ‘for lease’ signs thereon, (iv) to
\npost notices required or allowed by this lease or by law, (v) to alter, improve
\nor repair the Premises and any portion of the Project, and (vi) to erect
\nscaffolding and other necessary structures in or through the Premises or the
\nProject where reasonably required by the character of the work to be performed.
\nTenant shall have the right to accompany Landlord during such entry by Landlord
\nand Landlord shall comply with Tenant’s reasonable sign-in and security
\nmeasures. Landlord shall not be liable in any manner for any inconvenience,
\ndisturbance, loss of business, nuisance or other damage arising from Landlord’s
\nentry and acts pursuant to this paragraph and Tenant shall not be entitled to an
\nabatement or reduction of rent if Landlord exercises any rights reserved in this
\nparagraph. Landlord shall use reasonable efforts to minimize any interference
\nwith Tenant’s access to or use of the Premises in exercising such rights. For
\neach of the foregoing purposes, Landlord shall at all times have and retain a
\nkey with which to unlock all of the doors in, on and about the Premises
\n(excluding Tenant’s vaults, safes and similar areas designated in writing by
\nTenant in advance), and Landlord shall have the right to use any and all means
\nwhich Landlord may deem proper to open said doors in an emergency in order to
\nobtain entry to the Premises. Any entry by Landlord to the Premises pursuant to
\nthis paragraph shall not under any circumstances be construed or deemed to be a
\nforcible or unlawful entry into or a detainer of the Premises or an eviction,
\nactual or constructive, of Tenant from the Premises or any portion thereof.<\/p>\n
15. COMMON AREA; PARKING<\/p>\n
Subject to the terms and conditions of this lease and such rules and
\nregulations as Landlord may from time to time prescribe, Tenant and Tenant’s
\nemployees and invitees shall, in common with other occupants of the Project, and
\ntheir respective employees and invitees and others entitled to the use thereof,
\nhave the nonexclusive right to use the access roads, parking areas and
\nfacilities within the Project provided and designated by Landlord for the
\ngeneral use and convenience of the occupants of the Project which areas and
\nfacilities shall include, but not be limited to, sidewalks, parking, refuse,
\nlandscape and plaza areas, roofs and building exteriors, which areas and
\nfacilities are referred to herein as “Common Area”. This right shall terminate
\nupon the termination of this lease.<\/p>\n
Landlord reserves the right from time to time to make changes in the
\nshape, size, location, amount and extent of the Common Area; provided that the
\nbasic character of the amenities remains substantially unchanged. Landlord shall
\nalso have the right at any time to change the name, number or designation by
\nwhich the Project is commonly known. Landlord further reserves<\/p>\n
16<\/p>\n
the right to promulgate such reasonable rules and regulations relating to the
\nuse of the Common Area, and any part thereof, as Landlord may deem appropriate
\nfor the best interests of the occupants of the Project. The rules and
\nregulations shall be binding upon Tenant upon delivery of a copy of them to
\nTenant and Tenant shall abide by them and cooperate in their observance. Such
\nrules and regulations may be amended by Landlord from time to time, with or
\nwithout advance notice. In the event of a conflict, the provisions of this lease
\nshall prevail over the rules and regulations.<\/p>\n
Tenant shall have the use of all existing parking spaces at the
\nPremises; provided that Landlord and Landlord’s agents, contractors and
\nemployees shall have the right to use such parking areas as reasonably necessary
\nto fulfill Landlord’s obligations under this lease. Tenant, at Tenant’s expense,
\nmay modify the parking areas to increase the number of parking spaces, subject
\nto Landlord’s approval of design and structure and consent of Stanford. Any such
\nmodification of the parking area shall be subject to the provisions regarding
\nalterations in paragraph 8 of this lease. Landlord makes no representations to
\nTenant regarding Tenant’s ability to obtain the requisite permits, consents and
\napprovals from Stanford and governmental authorities and Tenant’s inability to
\ndo so shall not affect this lease. Landlord reserves the right at its sole
\noption to assign and label parking spaces, but it is specifically agreed that
\nLandlord is not responsible for policing any such parking spaces; provided that
\nsuch right shall not apply while Tenant occupies the entire leasable space in
\nthe Project. Tenant shall not at any time park or permit the parking of Tenant’s
\ntrucks or other vehicles, or the trucks or other vehicles of others, adjacent to
\nloading areas so as to interfere in any way with the use of such areas; nor
\nshall Tenant at any time park or permit the parking of Tenant’s vehicles or
\ntrucks, or the vehicles or trucks of Tenant’s suppliers or others, in any
\nportion of the Common Area not designated by Landlord for such use by Tenant.
\nTenant shall not park or permit any inoperative vehicle or equipment to be
\nparked on any portion of the Common Area.<\/p>\n
Landlord shall operate, manage and maintain the Common Area. The
\nmanner in which the Common Area shall be operated, managed and maintained and
\nthe expenditures for such operation, management and maintenance shall be at the
\nsole discretion of Landlord; provided that Landlord shall maintain the Project
\nin a first class condition. The cost of such maintenance, operation and
\nmanagement of the Common Area, including but not limited to landscaping, repair
\nof paving, parking lots and sidewalks, security and exterminator services and
\nsalaries and employee benefits (including union benefits) of on-site personnel
\nengaged in such maintenance and operations management, shall be a common area
\ncharge and Tenant shall pay to Landlord its percentage share of such costs as
\nprovided in paragraph 16.<\/p>\n
17<\/p>\n
16. COMMON AREA CHARGES<\/p>\n
Tenant shall pay to Landlord, as additional rent, an amount equal to
\none hundred percent (100%) of the total common area charges as defined below.
\nTenant’s percentage share of common area charges shall be paid as follows:<\/p>\n
Tenant’s estimated monthly payment of common area charges payable by
\nTenant during the calendar year in which the term commences is set forth in
\nparagraph 4(b) of this lease. Prior to the commencement of each succeeding
\ncalendar year of the term (or as soon as practicable thereafter), Landlord shall
\ndeliver to Tenant a written estimate of Tenant’s monthly payment of common area
\ncharges. Tenant shall pay, as additional rent, on the first day of each month
\nduring the term in accordance with paragraph 4(b) of the lease, its monthly
\nshare of common area charges as estimated by Landlord. Within one hundred twenty
\n(120) days of the end of each calendar year and of the termination of this lease
\n(or as soon as practicable thereafter), Landlord shall deliver to Tenant a
\nstatement of actual common area charges incurred for the preceding year. If such
\nstatement shows that Tenant has paid less than its actual percentage then Tenant
\nshall on demand pay to Landlord the amount of such deficiency which payment
\nshall be due within thirty (30) days after the date of Landlord’s notice. If
\nsuch statement shows that Tenant has paid more than its actual percentage share
\nthen Landlord shall, at its option, promptly refund such excess to Tenant or
\ncredit the amount thereof to the rent next becoming due from Tenant. Landlord
\nreserves the right to revise any estimate of common area charges if actual or
\nprojected common area charges show an increase or decrease in excess of 10% from
\nany earlier estimate for the same period. In such event, Landlord shall deliver
\nthe revised estimate to Tenant, together with an explanation of the reasons
\ntherefor, and Tenant shall revise its payments accordingly. Landlord’s and
\nTenant’s obligation with respect to adjustments at the end of the term or
\nearlier expiration of this lease shall survive such termination or expiration.<\/p>\n
Upon written request of Tenant made within sixty (60) days of Tenant’s
\nreceipt of the statement of actual direct expenses, Landlord shall make
\navailable for Tenant’s review, at Tenant’s cost, copies of documentation
\nreasonably available to Landlord to support the amounts set forth in such
\nstatement.<\/p>\n
As used in this lease, “common area charges” shall include, but not be
\nlimited to, (i) all items identified in paragraphs 8, 9, 11, 12, 13 and 15 as
\nbeing common area charges; (ii) amortization of such capital improvements having
\na useful life greater than one year as Landlord may have installed for the
\npurpose of reducing operating costs and\/or to comply with all laws, rules and
\nregulations of federal, state, county, municipal and other governmental
\nauthorities now or hereafter in effect<\/p>\n
18<\/p>\n
(the cost of such capital improvement shall be amortized over its useful life,
\nincluding interest at the rate of 2% over the then current Prime Rate as
\npublished by the Wall Street Journal on the date nearest to the date that such
\ncost is incurred, and the monthly amortized cost thereof shall be included in
\ncommon area charges); (iii) salaries and employee benefits (including union
\nbenefits) of personnel engaged in the operation and maintenance of the Project
\n(or the building in which the Premises are located) and payroll taxes applicable
\nthereto; (iv) supplies, materials, equipment and tools used or required in
\nconnection with the operation and maintenance of the Project; (v) licenses,
\npermits and inspection fees; (vi) a reasonable reserve for repairs and
\nreplacement of equipment used in the maintenance and operation of the Project;
\n(vii) all other operating costs reasonably incurred by Landlord in maintaining
\nand operating the Project; and (viii) a management cost recovery as determined
\nby Landlord equal to three percent (3%) of the sum of the basic rent and the
\naggregate of all other common area charges for the Project.<\/p>\n
Notwithstanding anything in the definition of common area charges in
\nthis lease to the contrary, common area charges shall not include the following,
\nexcept to the extent specifically permitted by a specific exception to the
\nfollowing:<\/p>\n
(i) Any ground lease rental;<\/p>\n
(ii) Costs actually reimbursed to Landlord by insurance proceeds for
\nthe repair of damage to the Project;<\/p>\n
(iii) Costs, including permit, license and inspection costs, incurred
\nwith respect to the installation of tenant or other occupants’ improvements in
\nthe Project or incurred in renovating or otherwise improving, decorating,
\npainting or redecorating vacant space for tenants or other occupants of the
\nProject;<\/p>\n
(iv) Marketing costs, including without limitation, leasing
\ncommission, attorneys’ fees in connection with the negotiation and preparation
\nof letters, deal memos, letters of intent, leases, subleases and\/or assignments,
\nspace planning costs, and other costs and expenses incurred in connection with
\nlease, sublease and\/or assignment negotiations and transactions with Tenant or
\npresent or prospective tenants or other occupants of the Project;<\/p>\n
(v) Expenses in connection with services or other benefits which are
\ncharged directly or are provided to other tenants of the Project but not made
\navailable to Tenant on a similar basis (or Tenant is charged separately for such
\nservices or benefits);<\/p>\n
19<\/p>\n
(vi) Interest, principal, points and fees on debts or amortization
\non any mortgage or mortgages or any other debt instrument encumbering the
\nProject;<\/p>\n
(vii) Landlord’s general corporate overhead and general and
\nadministrative expenses;<\/p>\n
(viii) Advertising and promotional expenditures, and costs of signs in
\nor on the Project identifying the owner of the Project or other tenants’ signs;<\/p>\n
(ix) Tax penalties incurred as a result of Landlord’s failure to
\nmake payments and\/or to file any tax or informational returns when due;<\/p>\n
(x) Costs for the acquisition of (as contrasted with the
\nmaintenance of) sculpture, paintings or other objects of art;<\/p>\n
(xi) Costs of any “tap fees” or any sewer or water connection fees
\nand for the benefit of any particular tenant in the Project;<\/p>\n
(xii) Reserves for bad debts or future improvements, repairs or
\nadditions in years subsequent to the current lease year; and<\/p>\n
(xiii) Costs related to Hazardous Materials (reporting, monitoring,
\ncontainment and abatement, and\/or remediation) to the extent not placed on, in
\nor about the Project by Tenant and to the extent that the same existed on the
\nLease Commencement Date and constituted Hazardous Materials pursuant to laws in
\neffect on the Lease Commencement Date.<\/p>\n
17. DAMAGE BY FIRE; CASUALTY<\/p>\n
In the event the Premises are partially damaged by any casualty which
\nis covered under an insurance policy required to be maintained by Landlord
\npursuant to paragraph 11, Landlord shall be entitled to the use of all insurance
\nproceeds and shall repair such damage as soon as reasonably possible and this
\nlease shall continue in full force and effect; provided that either party shall
\nhave the right to terminate this lease upon written notice to the other within
\nthirty (30) days after the date of damage if the Premises cannot reasonably be
\nrestored within one (1) year after the date of such damage.<\/p>\n
In the event the Premises are partially damaged by any casualty not
\ncovered under an insurance policy required to be maintained pursuant to
\nparagraph 11, Landlord may, at Landlord’s option, either (i) repair such damage,
\nat Landlord’s expense, as soon as reasonably possible, in which event this lease
\nshall continue in full force and effect, or (ii) give written notice to Tenant
\nwithin thirty (30) days after the date of the occurrence<\/p>\n
20<\/p>\n
of such damages of Landlord’s intention to cancel and terminate this lease as of
\nthe date of the occurrence of the damages; provided, however, that if such
\ndamage is caused by the negligence or willful misconduct of Tenant or its agent,
\nservants or employees, then Tenant shall repair such damage promptly at its sole
\ncost and expense. In the event Landlord elects to terminate this lease pursuant
\nhereto, Tenant shall have the right within fifteen (15) days after receipt of
\nthe required notice to notify Landlord in writing of Tenant’s intention to
\nrepair such damage at Tenant’s expense, without reimbursement from Landlord, in
\nwhich event this lease shall continue in full force and effect and Tenant shall
\nproceed to make such repairs as soon as reasonably possible. If Tenant does not
\ngive such notice within the fifteen (15) day period, this lease shall be
\ncanceled and terminated as of the date of the occurrence of such damage. In the
\nevent Landlord elects to repair the Premises but the repairs cannot reasonably
\nbe completed within one (1) year after the date of damage, either party shall
\nhave the right to terminate this lease upon written notice to the other within
\nthirty (30) days after the date of such damage. Under no circumstances shall
\nLandlord be required to repair any injury or damage to (by fire or other cause),
\nor to make any restoration or replacement of, any of Tenant’s personal property,
\ntrade fixtures or property leased from third parties, whether or not the same is
\nattached to the Premises.<\/p>\n
If the Premises are totally destroyed during the term from any cause
\n(including any destruction required by any authorized public authority), whether
\nor not covered by the insurance required under paragraph 11, this lease shall
\nautomatically terminate as of the date of such total destruction; provided,
\nhowever, that if the Premises can reasonably and lawfully be repaired or
\nrestored within twelve (12) months of the date of destruction to substantially
\nthe condition existing prior to such destruction and if the proceeds of the
\ninsurance payable to the Landlord by reason of such destruction are sufficient
\nto pay the cost of such repair or restoration, then the insurance proceeds shall
\nbe so applied, Landlord shall promptly repair and restore the Premises and this
\nlease shall continue, without interruption, in full force and effect. If the
\nPremises are totally destroyed during the last twelve (12) months of the term,
\neither party may cancel and terminate this lease as of the date of occurrence of
\nsuch damage by giving written notice to the other within thirty (30) days after
\nthe occurrence of such damage.<\/p>\n
If the Premises are partially or totally destroyed or damaged and
\nLandlord or Tenant repair them pursuant to this lease, the rent payable
\nhereunder for the period during which such damage and repair continues shall be
\nabated only in proportion to the square footage of the Premises rendered
\nuntenantable to Tenant by such damage or destruction. Tenant shall have no claim
\nagainst Landlord for any damage, loss or<\/p>\n
21<\/p>\n
expense suffered by reason of any such damage, destruction, repair or
\nrestoration. The parties waive the provisions of California Civil Code sections
\n1932(2) and 1933(4) (which provisions permit the termination of a lease upon
\ndestruction of the leased premises), and hereby agree that the provisions of
\nthis paragraph 17 shall govern in the event of such destruction.<\/p>\n
18. INDEMNIFICATION<\/p>\n
Landlord shall not be liable to Tenant and Tenant hereby waives all
\nclaims against Landlord for any injury to or death of any person or damage to or
\ndestruction of property in or about the Premises or the Project by or from any
\ncause whatsoever except the failure of Landlord to perform its obligations under
\nthis lease where such failure has persisted for an unreasonable period of time
\nafter notice of such failure or the gross negligence or willful misconduct of
\nLandlord, its employees or agents. Without limiting the foregoing, Landlord
\nshall not be liable to Tenant for any injury to or death of any person or
\ndamages to or destruction of property by reason of, or arising from, any latent
\ndefect in the Premises or Project or the act or negligence of any other tenant
\nof the Project. Tenant shall immediately notify Landlord of any defect in the
\nPremises or Project.<\/p>\n
Except as to injury to persons or damage to property the principal
\ncause of which is the failure by Landlord to observe any of the terms and
\nconditions of this lease or the gross negligence or willful misconduct of
\nLandlord, its employees or agents, Tenant shall hold Landlord harmless from and
\ndefend Landlord against any claim, liability, loss, damage or expense (including
\nattorney fees) arising out of any injury to or death of any person or damage to
\nor destruction of property occurring in, on or about the Premises from any cause
\nwhatsoever or on account of the use, condition, occupational safety or occupancy
\nof the Premises. Tenant shall further hold Landlord harmless from and defend
\nLandlord against any claim, liability, loss, damage or expense (including
\nattorney fees) arising (i) from Tenant’s use of the Premises or from the conduct
\nof its business or from any activity or work done, permitted or suffered by
\nTenant or its agents or employees in or about the Premises or Project, (ii) out
\nof the failure of Tenant to observe or comply with Tenant’s obligation to
\nobserve and comply with laws or other requirements as set forth in paragraph 7,
\n(iii) by reason of Tenant’s use, handling, storage, or disposal of toxic or
\nhazardous materials or waste, (iv) by reason of any labor or service performed
\nfor, or materials used by or furnished to, Tenant or any contractor engaged by
\nTenant with respect to the Premises, or (v) from any other act, neglect, fault
\nor omission of Tenant or its agents or employees.<\/p>\n
The provisions of this paragraph 18 shall survive the expiration or
\nearlier termination of this lease.<\/p>\n
22<\/p>\n
19. ASSIGNMENT AND SUBLETTING<\/p>\n
Tenant shall not voluntarily assign, encumber or otherwise transfer
\nits interest in this lease or in the Premises, or sublease all or any part of
\nthe Premises, or allow any other person or entity to occupy or use all or any
\npart of the Premises, without first obtaining Landlord’s written consent, which
\nconsent shall not be unreasonably withheld, and otherwise complying with the
\nrequirements of this paragraph 19. Any assignment, encumbrance, sublease or
\nother such transfer (“Transfer”) without Landlord’s written consent, shall
\nconstitute a default. The proposed assignee, subtenant or other transferee is
\nreferred to herein as the “Transferee”. Reasonable grounds for denying consent
\nto a proposed Transfer include, without limitation, any of the following:<\/p>\n
(a) Transferee’s credit history, or business is not consistent with
\nthe character or quality of a first class office project;<\/p>\n
(b) Transferee is either a government agency or an instrumentality of
\none;<\/p>\n
(c) Transferee’s intended use of the Premises is inconsistent with
\nthe permitted use specified in this lease or will materially and adversely
\naffect Landlord’s interest;<\/p>\n
(d) Transferee’s financial condition is or may be inadequate to
\nsupport the lease obligations of Transferee under the Transfer (taking into
\nconsideration Tenant’s continued liability under this lease);<\/p>\n
(e) The Transfer would cause Landlord to violate another lease or
\nagreement to which Landlord is a party or would give another tenant in the
\nProject the right to cancel its lease or the Transferee is a primary competitor
\nof another tenant leasing space in the Project and such tenant objects to such
\nTransfer;<\/p>\n
(f) Transferee occupies space in the Project and such space is not
\ncontiguous to the Premises, is negotiating with Landlord to lease space in the
\nProject, or has negotiated with Landlord during the six (6) months immediately
\npreceding notice of the proposed Transfer to Landlord.<\/p>\n
If Tenant desires to Transfer all or any portion of the Premises,
\nTenant shall give Landlord written notice (“Transfer Notice”) thereof,
\nspecifying the projected commencement date of the proposed Transfer (which date
\nshall be not less than thirty (30) days or more than one hundred eighty (180)
\ndays after the date of Landlord’s receipt of such notice), the portion of the
\nPremises which is the subject of the proposed Transfer (the <\/p>\n
23<\/p>\n
“Subject Space”), a description of any planned alterations or improvements to
\nthe Subject Space, the terms and conditions of the proposed Transfer (including
\nthe rent to be paid by the Transferee and any and all other consideration to be
\ngiven by the Transferee), the name, address and telephone number of the
\nTransferee, and a detailed calculation of the Transfer Premium (certified by
\nTenant’s chief financial officer) to be paid as provided below. Tenant shall
\nfurther provide Landlord with such other information concerning the Transferee
\nas requested by Landlord. Landlord shall have the right to communicate with the
\nTransferee to discuss the terms of the proposed Transfer, to discuss and
\nnegotiate, if Landlord desires, the terms of a direct lease between Landlord and
\nTransferee, or any other matter and to enter into a direct lease agreement with
\nTransferee as provided below and failure of Transferee to meet with Landlord and
\nto negotiate in good faith the terms of a direct lease with Landlord shall
\nconstitute grounds for Landlord’s refusal to consent to the proposed Transfer.
\nIf the total square footage of the Subject Space and all other space subleased
\nor transferred by Tenant under any prior Transfer then operative with terms
\nexpiring during the last half of the then remaining term of this lease
\n(determined as of the date of the proposed Transfer) collectively constitutes
\nmore than fifty percent (50%) of the Premises, then for a period of twenty (20)
\ndays after Landlord’s receipt of the Transfer Notice, Landlord shall have the
\noption, exercisable by delivering written notice to Tenant, to terminate this
\nlease for the Subject Space or for the entire Premises, in Landlord’s
\ndiscretion, as of the date specified in Landlord’s written notice to Tenant,
\nwhich date shall not be less than thirty (30) days nor more than ninety (90)
\ndays after the date of Landlord’s written notice to Tenant. If Landlord
\nexercises its option to terminate this lease as provided in the foregoing
\nsentence, Landlord may, if it so elects, enter into a new lease for the Premises
\nor any portion thereof with the Transferee or any other third party on such
\nterms as Landlord and the Transferee or other third party may agree; in such
\nevent, Tenant shall not be entitled to any portion of the profit, if any, which
\nLandlord may realize on account of such termination and reletting. If Landlord
\nexercises its option to terminate this lease with respect to the Subject Space
\nonly (i.e., less than the entire Premises), then Tenant shall continue to be
\nobligated under this lease as to the remaining space (i.e., the Premises less
\nthe Subject Space) and basic rent and common area charges payable by Tenant
\nunder this lease shall be adjusted as follows: (i) the basic rent amount(s)
\nspecified in paragraphs 4(a) and 5(a) of this lease shall be multiplied by a
\nfraction, the numerator of which is the square feet of the Premises retained by
\nTenant after Landlord’s recapture of the Subject Space and the denominator of
\nwhich is the total square feet of the Premises before Landlord’s recapture; (ii)
\nTenant’s proportionate share of common area charges as provided in paragraph 16
\nof this lease shall be reduced to reflect Tenant’s percentage share based on the
\nsquare feet of the Premises retained by Tenant after Landlord’s<\/p>\n
24<\/p>\n
recapture. This lease as so amended shall continue thereafter in full force and
\neffect. Either party may require written confirmation of the amendments to this
\nlease necessitated by Landlord’s recapture of the Subject Space. If Landlord
\nrecaptures the Subject Space, Landlord shall, at Landlord’s sole expense,
\nconstruct any partitions required to segregate the Subject Space from the
\nremaining Premises retained by Tenant and Landlord shall pay for painting,
\ncovering, or otherwise decorating the surfaces of the partitions facing the
\nremaining Premises retained by Tenant.<\/p>\n
If Landlord does not elect to terminate this lease as provided
\nhereinabove in this paragraph 19 and if Landlord consents in writing to the
\nproposed Transfer, Tenant shall be free to make such Transfer subject to the
\nfollowing conditions: (i) any Transfer shall be on the same terms set forth in
\nthe Transfer Notice given to Landlord; (ii) no Transfer shall be valid and no
\nTransferee shall take possession of the Subject Space until an executed
\ncounterpart of such Transfer has been delivered to Landlord; (iii) no Transferee
\nshall have a further right to assign, sublet or transfer; (iv) seventy-five
\npercent (75%) of the Bonus Rent (as defined below), if any, shall be paid by
\nTenant to Landlord monthly as additional rent under this lease without affecting
\nor reducing any other obligation of Tenant hereunder (such amounts are referred
\nto herein as the “Transfer Premium”); (v) no Transfer shall release Tenant of
\nTenant’s obligation or alter the primary liability of Tenant to pay the rent and
\nto perform all other obligations to be performed by Tenant hereunder; (vi) any
\nassignee or subtenant must expressly agree to assume and perform all of the
\ncovenants and conditions of Tenant under this lease, and (vii) any modification
\nor amendment of any such Transfer shall be deemed to be a separate Transfer
\ntransaction and shall be subject to Landlord’s right to recapture, Landlord’s
\nprior written consent and the other terms and provisions of this paragraph 19.
\nTenant shall pay to Landlord promptly upon demand as additional rent, Landlord’s
\nactual attorneys’ fees and other costs incurred for reviewing, processing or
\ndocumenting any requested Transfer, whether or not Landlord’s consent is
\ngranted. Tenant shall not be entitled to assign this lease or sublease all or
\nany part of the Premises (and any attempt to do so shall be voidable by
\nLandlord) during any period in which Tenant is in default under this lease.<\/p>\n
For purposes of this paragraph 19, the term “Bonus Rent” shall mean
\nthe Transfer Payments (as defined below) less the amounts specified in (A) and
\n(B), where (A) is a monthly credit amount equal to the sum of (1) and (2)
\ndivided by the total number of months in the term of the Transfer, where (1) is
\nthe actual out-of-pocket cost of leasehold improvements paid by Tenant to third
\nparty contractors and constructed specifically for the exclusive benefit of such
\nTransferee in the Subject Space, but specifically excluding any costs related to
\n(i) the initial tenant improvements to be constructed in the Premises<\/p>\n
25<\/p>\n
pursuant to the terms of this lease, if any, (ii) the installation, modification
\nand\/or removal of security systems, data cabling and telephone and communication
\nsystems, and (iii) the installation, modification and\/or removal of any
\nfurniture, fixtures or equipment or any personal property, and (2) is the amount
\nof broker fees paid by Tenant in connection with such Transfer, and (B) is a
\nmonthly credit amount equal to the monthly basic rent and common area charges
\nwhich Tenant is obligated to pay Landlord under this lease during the term of
\nsuch Transfer (prorated in the case of a sublease to reflect the obligations
\nallocable to that portion of the Premises subject to such sublease). As a
\ncondition precedent to allowing the deduction for the cost of leasehold
\nimprovements specified above, Tenant shall furnish a complete statement,
\ncertified by an independent certified public accountant or Tenant’s chief
\nfinancial officer, describing in detail the computation of any Transfer Premium
\nthat Tenant has derived or will derive from the Transfer. Landlord or Landlord’s
\nagent shall have the right to review Tenant’s books and records relating to the
\ncalculation of Bonus Rent, including the right to have an independent certified
\npublic accountant review same. If Landlord’s independent certified public
\naccountant finds that the Bonus Rent for any Transfer has been understated,
\nTenant shall, within thirty (30) days after demand, pay the deficiency and
\nLandlord’s costs of that review. If Tenant has understated the Bonus Rent by
\nmore than ten percent (10%), Landlord may, at its option, declare Tenant in
\nmaterial and incurable default under this lease notwithstanding any cure period
\nspecified therein.<\/p>\n
For purposes of this paragraph 19, the term “Transfer Payments” shall
\nmean any and all sums or other consideration payable to or received by Tenant as
\na result of or in connection with a Transfer whether denominated rent or
\notherwise, including any amounts payable to Tenant for (x) services to be
\nprovided to Transferee by Tenant or (y) the sale, lease or use of Tenant’s
\nfurniture, fixtures and equipment or other personal property, but the total
\nTransfer Payments shall not exceed the fair market rental value of the Premises
\nas reasonably determined by Landlord.<\/p>\n
If Tenant is a partnership, a withdrawal or change, voluntary or
\ninvoluntary or by operation of law, of any general partner or the dissolution of
\nthe partnership shall be deemed an assignment of this lease subject to all the
\nconditions of this paragraph 19. If Tenant is a corporation any dissolution,
\nmerger, consolidation or other reorganization of Tenant or the sale or other
\ntransfer of a controlling percentage of the capital stock of Tenant or the sale
\nof more than fifty percent (50%) of the value of Tenant’s assets shall be an
\nassignment of this lease subject to all the conditions of this paragraph 19. The
\nterm “controlling percentage” means the ownership of, and the right to vote,
\nstock possessing more than 50% of the total combined voting power of all classes
\nof Tenant’s capital stock issued,<\/p>\n
26<\/p>\n
outstanding and entitled to vote. This subparagraph of this paragraph 19 shall
\nnot apply if Tenant is a corporation the stock of which is traded on the New
\nYork Stock Exchange, the American Stock Exchange or NASDAQ.<\/p>\n
The acceptance of rent by Landlord from any other person shall not be
\ndeemed to be a waiver by Landlord of any provision hereof. Consent to one
\nTransfer shall not be deemed consent to any subsequent Transfer. In the event of
\ndefault by any Transferee of Tenant or any successor of Tenant in the
\nperformance of any of the terms hereof, Landlord may proceed directly against
\nTenant without the necessity of exhausting remedies against such Transferee or
\nsuccessor. Landlord may consent to subsequent Transfers of this lease or
\namendments or modifications to this lease with Transferees of Tenant, without
\nnotifying Tenant, or any successor of Tenant, and without obtaining its or their
\nconsent thereto and such action shall not relieve Tenant of liability under this
\nlease.<\/p>\n
No interest of Tenant in this lease shall be assignable by operation
\nof law (including, without limitation, the transfer of this lease by testacy or
\nintestacy). Each of the following acts shall be considered an involuntary
\nassignment: (i) if Tenant is or becomes bankrupt or insolvent, makes an
\nassignment for the benefit of creditors or institutes a proceeding under the
\nBankruptcy Act in which Tenant is the bankrupt; or, if Tenant is a partnership
\nor consists of more than one person or entity, if any partner of the partnership
\nor other person or entity is or becomes bankrupt or insolvent, or makes an
\nassignment for the benefit of creditors; (ii) if a writ of attachment or
\nexecution is levied on this lease; or (iii) if, in any proceeding or action to
\nwhich Tenant is a party, a receiver is appointed with authority to take
\npossession of the Premises. An involuntary assignment shall constitute a default
\nby Tenant after the expiration of any applicable cure period and Landlord shall
\nhave the right to elect to terminate this lease, in which case this lease shall
\nnot be treated as an asset of Tenant.<\/p>\n
Tenant immediately and irrevocably assigns to Landlord, as security
\nfor Tenant’s obligations under this lease, all rent or other consideration from
\nany Transfer of all or a part of the Premises as permitted by this lease, and
\nLandlord, as assignee and as attorney-in-fact for Tenant, or a receiver of
\nTenant appointed on Landlord’s application, may collect such rent or other
\nconsideration and apply it toward Tenant’s obligations under this lease and any
\nTransferee agrees to make such payments directly to Landlord upon Landlord’s
\nwritten request; provided that, until the occurrence of a default by Tenant,
\nTenant shall have the right to collect such rent, subject to promptly forwarding
\nto Landlord any portion thereof to which Landlord is entitled pursuant to this
\nparagraph 19.<\/p>\n
27<\/p>\n
Notwithstanding the above requirement that Tenant obtain the consent
\nof Landlord prior to any assignment or sublet, Tenant may, without obtaining the
\nprior consent of Landlord, assign or sublease the whole or any part of the
\nPremises to any corporation or other entity which controls, is controlled by, or
\nis under common control with Tenant, provided that (i) Tenant shall give written
\nnotice thereof to Landlord in the manner required for other assignments or
\nsubleases by this paragraph 19; (ii) Tenant shall continue to be fully obligated
\nunder this lease; (iii) any such assignee or sublessee shall expressly assume
\nand agree to perform all the terms and conditions of this lease to be performed
\nby Tenant; and (iv) any such assignment or sublet shall be subject to all other
\nterms and conditions of this paragraph 19 pertaining to assignments and\/or
\nsublets (excepting only the requirement concerning prior written consent of
\nLandlord). The notices required in clauses (i) through (iv) above shall replace
\nrather than supplement any equivalent or similar statutory notice, including any
\nnotices required by Code of Civil Procedure section 1161 or any similar or
\nsuccessor statute. When a statute requires service of a notice in a particular
\nmanner, service of that notice (or a similar notice required by this Lease) in
\nthe manner required by section 38 shall replace and satisfy the statutory
\nservice-of-notice procedures, including those required by Code of Civil
\nProcedure section 1162 or any similar or successor statute.<\/p>\n
20. DEFAULT<\/p>\n
The occurrence of any of the following shall constitute a default by
\nTenant: (i) failure of Tenant to pay any rent or other sum payable hereunder
\nwhen due (provided that Tenant may cure such default by paying to Landlord the
\namount demanded within three (3) days after receipt of the statutory notice as
\nprovided for in Code of Civil Procedure Section 1161); (ii) abandonment of the
\nPremises (Tenant’s failure to occupy and conduct business in the Premises for
\nfourteen (14) consecutive days and Tenant has failed to pay any rent or other
\nsum when due shall be deemed an abandonment); (iii) failure of Tenant to deliver
\nto Landlord any instrument, assurance, financial statement, letter of credit,
\nsubordination agreement or certificate of estoppel required under this Lease
\nwithin (a) the time period specified in this lease for such performance after
\nwritten notice, or (b) if such time period is not specified then within five (5)
\ndays after written notice of the failure from Landlord to Tenant; or (iv)
\nfailure of Tenant to perform any other obligation under this lease if the
\nfailure to perform is not cured within fifteen (15) days after written notice
\nthereof has been given to Tenant, except in the case of an emergency or
\ndangerous condition, in which case Tenant’s time to perform shall be that time
\nperiod which is reasonable under the circumstances, but not more than fifteen
\n(15) days; provided, however, if the nature of Tenant’s obligation under this
\nsubsection (iv) is such that more than fifteen (15) days are required for
\nperformance,<\/p>\n
28<\/p>\n
then Tenant shall not be in default if Tenant commences performance within the
\nperiod of time specified and thereafter diligently prosecutes the same to
\ncompletion. The notice referred to in clauses (iii) and (iv) above shall specify
\nthe obligations Tenant has failed to perform. No notice shall be deemed a
\nforfeiture or termination of this lease unless Landlord so elects in the notice.<\/p>\n
In addition to the above, the occurrence of any of the following
\nevents shall also constitute a default by Tenant: (i) Tenant fails to pay its
\ndebts as they become due or admits in writing its inability to pay its debts, or
\nmakes a general assignment for the benefit of creditors (for purposes of
\ndetermining whether Tenant is not paying its debts as they become due, a debt
\nshall be deemed overdue upon the earliest to occur of the following: thirty (30)
\ndays from the date on which any action or proceeding therefor is commenced; or
\nthe date on which a formal notice of default or demand has been sent); or (ii)
\nany financial statements given to Landlord by Tenant, any assignee of Tenant,
\nsubtenant of Tenant, any guarantor of Tenant, or successor in interest of Tenant
\n(including, without limitation, any schedule of Tenant’s aged accounts payable)
\nare materially false.<\/p>\n
In the event of a default by Tenant, then Landlord, in addition to any
\nother rights and remedies of Landlord at law or in equity, shall have the right
\neither to terminate Tenant’s right to possession of the Premises (and thereby
\nterminate this lease) or, from time to time and without termination of this
\nlease, to relet the Premises or any part thereof for the account and in the name
\nof Tenant for such term and on such terms and conditions as Landlord in its sole
\ndiscretion may deem advisable, with the right to make alterations and repairs to
\nthe Premises.<\/p>\n
Should Landlord elect to keep this lease in full force and effect,
\nLandlord shall have the right to enforce all of Landlord’s rights and remedies
\nunder this lease, including but not limited to the right to recover and to relet
\nthe Premises and such other rights and remedies as Landlord may have under
\nCalifornia Civil Code Section 1951.4, which Section provides that the landlord
\nmay continue the Lease in effect after the tenant’s breach and abandonment and
\nrecover rent as it becomes due, when the tenant has the right to sublet or
\nassign, subject only to reasonable limitations (or successor Code section) or
\nany other California statute. If Landlord relets the Premises, then Tenant shall
\npay to Landlord, as soon as ascertained, the costs and expenses incurred by
\nLandlord in such reletting and in making alterations and repairs. Rentals
\nreceived by Landlord from such reletting shall be applied (i) to the payment of
\nany indebtedness due hereunder, other than basic rent and common area charges,
\nfrom Tenant to Landlord; (ii) to the payment of the cost of any repairs
\nnecessary to return the Premises to good condition normal wear and tear
\nexcepted, including the cost of alterations and the<\/p>\n
29<\/p>\n
cost of storing any of Tenant’s property left on the Premises at the time of
\nreletting; and (iii) to the payment of basic rent or common area charges due and
\nunpaid hereunder. The residue, if any, shall be held by Landlord and applied in
\npayment of future rent or damages in the event of termination as the same may
\nbecome due and payable hereunder and the balance, if any at the end of the term
\nof this lease, shall be paid to Tenant. Should the basic rent and common area
\ncharges received from time to time from such reletting during any month be less
\nthan that agreed to be paid during that month by Tenant hereunder, Tenant shall
\npay such deficiency to Landlord. Such deficiency shall be calculated and paid
\nmonthly. No such reletting of the Premises by Landlord shall be construed as an
\nelection on its part to terminate this lease unless a written notice of such
\nintention is given to Tenant or unless the termination hereof is decreed by a
\ncourt of competent jurisdiction. Notwithstanding any such reletting without
\ntermination, Landlord may at any time thereafter elect to terminate this lease
\nfor such previous breach, provided it has not been cured.<\/p>\n
Should Landlord at any time terminate this lease for any breach, in
\naddition to any other remedy it may have, it shall have all the rights and
\nremedies of a landlord provided by California Civil Code Section 1951.2 or any
\nsuccessor code section. Upon such termination, in addition to all its other
\nrights and remedies, Landlord shall be entitled to recover from Tenant all
\ndamages it may incur by reason of such breach, including the cost of recovering
\nthe Premises and including (i) the worth at the time of award of the unpaid rent
\nwhich had been earned at the time of termination; (ii) the worth at the time of
\naward of the amount by which the unpaid rent which would have been earned after
\ntermination until the time of award exceeds the amount of such rental loss that
\nTenant proves could have been reasonably avoided; (iii) the worth at the time of
\nthe award of the amount by which the unpaid rent for the balance of the term
\nafter the time of award exceeds the amount of such rental loss that Tenant
\nproves could be reasonably avoided; and (iv) any other amount necessary to
\ncompensate Landlord for all the detriment proximately caused by Tenant’s failure
\nto perform its obligations under this lease or which in the ordinary course of
\nevents would be likely to result therefrom. The “worth at the time of award” of
\nthe amounts referred to in (i) and (ii) above is computed by allowing interest
\nat the rate of twelve percent (12%) per annum but not to exceed the lawful rate
\nas specified in 1951.2(b). The “worth at the time of award” of the amount
\nreferred to in (iii) above shall be computed by discounting such amount at the
\ndiscount rate of the federal reserve bank of San Francisco at the time of award
\nplus one percent (1%). Tenant waives the provisions of Section 1179 of the
\nCalifornia Code of Civil Procedure (which Section allows Tenant to petition of
\ncourt of competent jurisdiction for relief against forfeiture of this lease).
\nProperty removed from the Premises may be stored in a public or private
\nwarehouse or elsewhere at the sole cost and<\/p>\n
30<\/p>\n
expense of Tenant. In the event that Tenant shall not immediately pay the cost
\nof storage of such property after the same has been stored for a period of
\nthirty (30) days or more, Landlord may sell any or all thereof at a public or
\nprivate sale in such manner and at such times and places that Landlord, in its
\nsole discretion, may deem proper, without notice to or demand upon Tenant.<\/p>\n
21. LANDLORD’S RIGHT TO CURE TENANT’S DEFAULT<\/p>\n
Landlord, at any time after Tenant commits a default which is not
\ncured within any applicable cure period specified in paragraph 20, may, but
\nshall not be obligated to, cure the default at Tenant’s cost. If Landlord at any
\ntime, by reason of Tenant’s default, pays any sum or does any act that requires
\nthe payment of any sum, the sum paid by Landlord shall be due immediately from
\nTenant to Landlord and shall bear interest at the rate of twelve percent (12%)
\nper annum or the maximum rate permitted by law, whichever is less, from the date
\nthe sum is paid by Landlord until Landlord is reimbursed by Tenant. Amounts due
\nLandlord hereunder shall be additional rent.<\/p>\n
22. EMINENT DOMAIN<\/p>\n
If all or any part of the Premises shall be taken by any public or
\nquasi-public authority under the power of eminent domain or conveyance in lieu
\nthereof, this lease shall terminate as to any portion of the Premises so taken
\nor conveyed on the date when title vests in the condemnor, and Landlord shall be
\nentitled to any and all payments, income, rent, award or any interest therein
\nwhatsoever which may be paid or made in connection with such taking or
\nconveyance. Tenant shall have no claim against Landlord or otherwise for the
\nvalue of any unexpired term of this lease. Notwithstanding the foregoing, Tenant
\nshall be entitled to any compensation for depreciation to and cost of removal of
\nTenant’s equipment and fixtures and any compensation for its relocation expenses
\nnecessitated by such taking, but in each case only to the extent the condemning
\nauthority makes a separate award therefor or specifically identifies a portion
\nof the award as being therefor. Each party waives the provisions of Section
\n1265.130 of the California Code of Civil Procedure (which section allows either
\nparty to petition the Superior Court to terminate this lease in the event of a
\npartial taking of the Premises).<\/p>\n
If any action or proceeding is commenced for such taking of the
\nPremises or any portion thereof or of any other space in the Project, or if
\nLandlord is advised in writing by any entity or body having the right or power
\nof condemnation of its intention to condemn the Premises or any portion thereof
\nor of any other space in the Project, and Landlord shall decide to discontinue
\nthe use and operation of the Project or decide to demolish, alter or rebuild the
\nProject, then Landlord shall have<\/p>\n
31<\/p>\n
the right to terminate this lease by giving Tenant written notice thereof within
\nsixty (60) days of the earlier of the date of Landlord’s receipt of such notice
\nof intention to condemn or the commencement of said action or proceeding. Such
\ntermination shall be effective as of the last day of the calendar month next
\nfollowing the month in which such notice is given or the date on which title
\nshall vest in the condemnor, whichever occurs first.<\/p>\n
In the event of a partial taking, or conveyance in lieu thereof, of
\nthe Premises and fifty percent (50%) or more of the number of square feet in the
\nPremises are taken then Tenant may terminate this lease. Any election by Tenant
\nto so terminate shall be by written notice given to Landlord within sixty (60)
\ndays from the date of such taking or conveyance and shall be effective on the
\nlast day of the calendar month next following the month in which such notice is
\ngiven or the date on which title shall vest in the condemnor, whichever occurs
\nfirst.<\/p>\n
If a portion of the Premises is taken by power of eminent domain or
\nconveyance in lieu thereof and neither Landlord nor Tenant terminates this lease
\nas provided above, then this lease shall continue in full force and effect as to
\nthe part of the Premises not so taken or conveyed and all payments of rent shall
\nbe apportioned as of the date of such taking or conveyance so that thereafter
\nthe amounts to be paid by Tenant shall be in the ratio that the area of the
\nportion of the Premises not so taken bears to the total area of the Premises
\nprior to such taking.<\/p>\n
23. NOTICE AND COVENANT TO SURRENDER<\/p>\n
On the last day of the term or on the effective date of any earlier
\ntermination, Tenant shall surrender to Landlord the Premises in its condition
\nexisting as of the commencement of the term (normal wear and tear and casualty
\nexcepted) and, except as otherwise required by Landlord pursuant to the terms of
\nparagraph 8 of this lease, all of the improvements and alterations made to the
\nPremises in their condition existing as of the date of completion of
\nconstruction and\/or installation (normal wear and tear and casualty excepted),
\nwith all originally painted interior walls washed or repainted if marked or
\ndamaged, interior vinyl covered walls cleaned and repaired or replaced if marked
\nor damaged, all carpets shampooed and cleaned, the air conditioning and heating
\nsystem serviced and repaired by a reputable and licensed service firm (unless
\nLandlord has elected to maintain such system pursuant to paragraph 9 of this
\nlease) and all floors cleaned and waxed; all to the reasonable satisfaction of
\nLandlord. On or prior to the last day of the term or the effective date of any
\nearlier termination, Tenant shall remove all of Tenant’s personal property and
\ntrade fixtures, together with improvements or alterations that Tenant is
\nobligated to remove pursuant to the provisions of paragraph 8 of this lease,
\nfrom the Premises, and all such property not<\/p>\n
32<\/p>\n
removed shall be deemed abandoned. In addition, on or prior to the expiration or
\nearlier termination of this lease, at Landlord’s option and upon Landlord’s
\nrequest, Tenant shall remove, at Tenant’s sole cost and expense, all or part (as
\ndetermined by Landlord) of the telephone, other communication, computer cable
\nand wiring and any other cabling and wiring of any sort installed in the space
\nabove the suspended ceiling of the Premises or anywhere else in the Premises and
\nshall promptly repair any damage to the suspended ceiling, lights, light
\nfixtures, walls and any other part of the Premises resulting from such removal.<\/p>\n
If the Premises are not surrendered as required in this paragraph,
\nTenant shall indemnify Landlord against all loss, liability and expense
\n(including but not limited to, attorney fees) resulting from the failure by
\nTenant in so surrendering the Premises, including, without limitation, any
\nclaims made by any succeeding tenants. It is agreed between Landlord and Tenant
\nthat the provisions of this paragraph shall survive termination of this lease.<\/p>\n
24. TENANT’S QUITCLAIM<\/p>\n
At the expiration or earlier termination of this lease, Tenant shall
\nexecute, acknowledge and deliver to Landlord, within ten (10) business days
\nafter written demand from Landlord to Tenant, any quitclaim deed or other
\ndocument required to remove the cloud or encumbrance created by this lease from
\nthe real property of which the Premises are a part. This obligation shall
\nsurvive said expiration or termination.<\/p>\n
25. HOLDING OVER<\/p>\n
Any holding over after the expiration or termination of this lease
\nwith the written consent of Landlord shall be construed to be a tenancy from
\nmonth-to-month at the monthly rent agreed upon by Landlord and Tenant, but in no
\nevent less than the monthly rent payable under this lease for the last lease
\nmonth before the date of such expiration or termination. All provisions of this
\nlease, except (i) as modified by the preceding sentence and (ii) those
\nprovisions pertaining to the term, expansion rights and any option to extend,
\nshall apply to the month-to-month tenancy.<\/p>\n
If Tenant shall retain possession of the Premises or any part thereof
\nwithout Landlord’s written consent following the expiration or sooner
\ntermination of this lease for any reason, then Tenant shall pay to Landlord as
\nrent during the holdover period an amount equal to the greater of (i) one
\nhundred fifty percent (150%) of the amount of the monthly rent in effect during
\nthe last full lease month prior to the date of such expiration or termination or
\n(ii) one hundred fifty percent (150%) of the fair market rental (as reasonably
\ndetermined by Landlord) for the<\/p>\n
33<\/p>\n
Premises. Tenant shall also indemnify and hold Landlord harmless from any loss,
\nliability and expense (including, but not limited to, attorneys fees) resulting
\nfrom delay by Tenant in surrendering the Premises, including without limitation
\nany claims made by any succeeding tenant founded on such delay. Acceptance of
\nrent by Landlord following expiration or termination shall not constitute a
\nrenewal of this lease, and nothing contained in this paragraph shall waive
\nLandlord’s right of re-entry or any other right. Tenant shall be only a tenant
\nat sufferance, whether or not Landlord accepts any rent from Tenant, while
\nTenant is holding over without Landlord’s written consent.<\/p>\n
The provisions of this paragraph 25 are in addition to, and do not
\naffect, Landlord’s right of re-entry or other rights hereunder or provided by
\nlaw. Nothing in this paragraph 25 shall be construed as implied consent by
\nLandlord to any holding over by Tenant. Landlord expressly reserves the right to
\nrequire Tenant to surrender possession of the Premises to Landlord as provided
\nin this Lease on expiration or other termination of this Lease. The provisions
\nof this paragraph 25 shall not be considered to limit or constitute a waiver of
\nany other rights or remedies of Landlord provided in this Lease or at law. The
\nprovisions of this paragraph 25 shall survive the expiration or early
\ntermination of this lease.<\/p>\n
26. SUBORDINATION<\/p>\n
In the event Landlord’s title or leasehold interest is now or
\nhereafter encumbered in order to secure a loan to Landlord, Tenant shall, at the
\nrequest of Landlord or the lender, execute in writing an agreement subordinating
\nits rights under this lease to the lien of such encumbrance, or, if so
\nrequested, agreeing that the lien of lender’s encumbrance shall be or remain
\nsubject and subordinate to the rights of Tenant under this lease.
\nNotwithstanding any such subordination, Tenant’s possession under this lease
\nshall not be disturbed if Tenant is not in default and so long as Tenant shall
\npay all amounts due hereunder and otherwise observe and perform all provisions
\nof this lease. In addition, if in connection with any such loan the lender shall
\nrequest reasonable modifications of this lease as a condition to such financing,
\nTenant will not unreasonably withhold, delay or defer its consent thereof,
\nprovided that such modifications do not increase the obligations of Tenant
\nhereunder or materially adversely affect the leasehold interest hereby created
\nor Tenant’s rights hereunder.<\/p>\n
27. CERTIFICATE OF ESTOPPEL<\/p>\n
Each party shall, within ten (10) business after request therefor,
\nexecute and deliver to the other party, in recordable form, a certificate
\nstating that the lease is unmodified and in full force and effect, or in full
\nforce and<\/p>\n
34<\/p>\n
effect as modified and stating the modifications. The certificate shall also
\nstate the amount of the monthly rent, the date to which monthly rent has been
\npaid in advance, the amount of the security deposit and\/or prepaid monthly rent,
\nand, if the request is made by Landlord, shall include such other items as
\nLandlord or Landlord’s lender may reasonably request. Failure to deliver such
\ncertificate within such time shall constitute a conclusive acknowledgment by the
\nparty failing to deliver the certificate that the lease is in full force and
\neffect and has not been modified except as may be represented by the party
\nrequesting the certificate. Any such certificate requested by Landlord may be
\nconclusively relied upon by any prospective purchaser or encumbrancer of the
\nPremises or Project. Further, within ten (10) business days following written
\nrequest made from time to time by Landlord, Tenant shall furnish to Landlord
\ncurrent financial statements of Tenant, not to exceed two (2) requests per
\ncalendar year, unless required by Landlord’s lender, potential lender or
\nprospective purchaser of the Project.<\/p>\n
28. SALE BY LANDLORD<\/p>\n
In the event the original Landlord hereunder, or any successor owner
\nof the Project or Premises, shall sell or convey the Project or Premises, upon
\nthe assumption of this lease by the new owner, all liabilities and obligations
\non the part of the original Landlord, or such successor owner, under this lease
\naccruing thereafter shall terminate, and thereupon all such liabilities and
\nobligations shall be binding upon the new owner. Tenant agrees to attorn to such
\nnew owner and to look solely to such new owner for performance of any and all
\nsuch liabilities and obligations.<\/p>\n
29. ATTORNMENT TO LENDER OR THIRD PARTY<\/p>\n
In the event the interest of Landlord in the land and buildings in
\nwhich the Premises are located (whether such interest of Landlord is a fee title
\ninterest or a leasehold interest) is encumbered by deed of trust, and such
\ninterest is acquired by a lender or any other third party through judicial
\nforeclosure or by exercise of a power of sale at private trustee’s foreclosure
\nsale, Tenant hereby agrees to release Landlord of any obligation arising on or
\nafter any such foreclosure sale and to attorn to the purchaser at any such
\nforeclosure sale and to recognize such purchaser as the Landlord under this
\nlease; provided that Tenant’s possession of the Premises and rights under this
\nlease shall not be disturbed so long as Tenant is not in default hereunder.<\/p>\n
30. DEFAULT BY LANDLORD<\/p>\n
Landlord shall not be in default unless Landlord fails to perform
\nobligations required of Landlord within thirty (30) days after written notice to
\nLandlord and to the holder of any<\/p>\n
35<\/p>\n
first mortgage or deed of trust covering the Premises, except in the case of an
\nemergency or dangerous condition, in which case Landlord’s time to perform shall
\nbe that time period which is reasonable under the circumstances; and provided
\nfurther that if the nature of Landlord’s obligations is such that more than
\nthirty (30) days are required for performance, then Landlord shall not be in
\ndefault if Landlord commences performance within such thirty (30) day period and
\nthereafter diligently prosecutes the same to completion.<\/p>\n
If Landlord is in default of this lease, Tenant’s sole remedy shall be
\nto institute suit against Landlord in a court of competent jurisdiction, and
\nTenant shall have no right to offset any sums expended by Tenant as a result of
\nLandlord’s default against future rent and other sums due and payable pursuant
\nto this lease. If Landlord is in default of this lease, and as a consequence
\nTenant recovers a money judgment against Landlord, the judgment shall be
\nsatisfied only out of the proceeds of sale received on execution of the judgment
\nand levy against the right, title and interest of Landlord in the Project of
\nwhich the Premises are a part, and out of rent or other income from such real
\nproperty receivable by Landlord or out of the consideration received by Landlord
\nfrom the sale or other disposition of all or any part of Landlord’s right, title
\nand interest in the Project of which the Premises are a part. Neither Landlord
\nnor any of the partners comprising the partnership designated as Landlord shall
\nbe personally liable for any deficiency.<\/p>\n
31. [INTENTIONALLY OMITTED]<\/p>\n
32. MEASUREMENT OF PREMISES<\/p>\n
Tenant understands and agrees that any reference to square footage of
\nthe Premises is approximate only and includes all interior partitions and
\ncolumns, one-half of exterior walls, and one-half of the partitions separating
\nthe Premises from the rest of the Project, Tenant’s proportionate share of the
\nCommon Area and, if applicable, covered areas immediately outside the entry
\ndoors or loading docks. Tenant waives any claim against Landlord regarding the
\naccuracy of any such measurement and agrees that there shall not be any
\nadjustment in basic rent or common area charges or other amounts payable
\nhereunder by reason of inaccuracies in such measurement.<\/p>\n
33. ATTORNEY FEES<\/p>\n
If either party commences an action against the other party arising
\nout of or in connection with this lease, the prevailing party shall be entitled
\nto have and recover from the losing party all expenses of litigation, including,
\nwithout limitation, travel expenses, attorney fees, expert witness fees, trial
\nand appellate court costs, and deposition and transcript expenses. If either
\nparty becomes a party to any litigation<\/p>\n
36<\/p>\n
concerning this lease, or concerning the Premises or the Project, by reason of
\nany act or omission of the other party or its authorized representatives, the
\nparty that causes the other party to become involved in the litigation shall be
\nliable to the other party for all expenses of litigation, including, without
\nlimitation, travel expenses, attorney fees, expert witness fees, trial and
\nappellate court costs, and deposition and transcript expenses.<\/p>\n
34. SURRENDER<\/p>\n
The voluntary or other surrender of this lease or the Premises by
\nTenant, or a mutual cancellation of this lease, shall not work a merger, and at
\nthe option of Landlord shall either terminate all or any existing subleases or
\nsubtenancies or operate as an assignment to Landlord of all or any such
\nsubleases or subtenancies.<\/p>\n
35. WAIVER<\/p>\n
No delay or omission in the exercise of any right or remedy of
\nLandlord on any default by Tenant shall impair such right or remedy or be
\nconstrued as a waiver. The receipt and acceptance by Landlord of delinquent rent
\nor other payments shall not constitute a waiver of any other default and
\nacceptance of partial payments shall not be construed as a waiver of the balance
\nof such payment due. No act or conduct of Landlord, including, without
\nlimitation, the acceptance of keys to the Premises, shall constitute an
\nacceptance of the surrender of the Premises by Tenant before the expiration of
\nthe term. Only a written notice from Landlord to Tenant shall constitute
\nacceptance of the surrender of the Premises and accomplish a termination of this
\nlease. Landlord’s consent to or approval of any act by Tenant requiring
\nLandlord’s consent or approval shall not be deemed to waive or render
\nunnecessary Landlord’s consent to or approval of any subsequent act by Tenant.
\nAny waiver by Landlord of any default must be in writing and shall not be a
\nwaiver of any other default concerning the same or any other provision of this
\nlease.<\/p>\n
36. EASEMENTS; AIRSPACE RIGHTS<\/p>\n
Landlord reserves the right to alter the boundaries of the Project and
\ngrant easements and dedicate for public use portions of the Project without
\nTenant’s consent, provided that no such grant or dedication shall interfere with
\nTenant’s use of the Premises or otherwise cause Tenant to incur cost or expense.
\nFrom time to time, and upon Landlord’s demand, Tenant shall execute, acknowledge
\nand deliver to Landlord, in accordance with Landlord’s instructions, any and all
\ndocuments, instruments, maps or plats necessary to effectuate Tenant’s covenants
\nhereunder.<\/p>\n
37<\/p>\n
This lease confers no rights either with regard to the subsurface of
\nor airspace above the land on which the Project is located or with regard to
\nairspace above the building of which the Premises are a part. Tenant agrees that
\nno diminution or shutting off of light or view by a structure which is or may be
\nerected (whether or not by Landlord) on property adjacent to the building of
\nwhich the Premises are a part or to property adjacent thereto, shall in any way
\naffect this lease, or entitle Tenant to any reduction of rent, or result in any
\nliability of Landlord to Tenant.<\/p>\n
37. RULES AND REGULATIONS<\/p>\n
Landlord shall have the right from time to time to promulgate
\nreasonable rules and regulations for the safety, care and cleanliness of the
\nPremises, the Project and the Common Area, or for the preservation of good
\norder. On delivery of a copy of such rules and regulations to Tenant, Tenant
\nshall comply with the rules and regulations, and a violation of any of them
\nshall constitute a default by Tenant under this lease. If there is a conflict
\nbetween the rules and regulations and any of the provisions of this lease, the
\nprovisions of this lease shall prevail. Such rules and regulations may be
\namended by Landlord from time to time with or without advance notice.<\/p>\n
38. NOTICES<\/p>\n
Except for legal process and Notice of Belief of Abandonment which may
\nbe served either as provided by law or as provided herein, all notices, demands,
\nrequests, consents, approvals and other communications (“Notices”) which may be
\ngiven or are required to be given by either party to the other shall be in
\nwriting and shall be deemed given to and received by the party intended to
\nreceive such Notice and deemed sufficiently given for all purposes as follows:<\/p>\n
(a) when personally delivered to the recipient, notice is effective
\non delivery;<\/p>\n
(b) when mailed first class to the last address of the recipient
\nknown to the party giving notice, notice is effective on delivery;<\/p>\n
(c) when mailed by certified mail with return receipt requested,
\nnotice is effective on receipt if delivery is confirmed by a return receipt; or<\/p>\n
(d) when delivered by reputable overnight courier (e.g. Federal
\nExpress, Airborne) or other comparable service with charges prepaid or charged
\nto the sender’s account, notice is effective on delivery if delivery is
\nconfirmed by the courier service.<\/p>\n
38<\/p>\n
Any correctly addressed Notice that is refused, unclaimed, or
\nundeliverable because of an act or omission of the party to be notified shall be
\ndeemed effective as of the first date that the Notice was refused, unclaimed, or
\nconsidered undeliverable by the postal authorities, messenger, or overnight
\ndelivery service.<\/p>\n
Prior to the commencement date, all such Notices from Landlord to
\nTenant shall be served or addressed to Tenant at 529 Bryant Street, Palo Alto,
\nCalifornia 94301, Attn. Randy Bender, Director, Real Estate & Property Services.
\nOn or after the commencement date all such Notices from Landlord to Tenant shall
\nbe addressed to Tenant at the Premises.<\/p>\n
All such Notices by Tenant to Landlord shall be sent to Landlord at
\nits offices at 3945 Freedom Circle, Suite 640, Santa Clara, California 95054.<\/p>\n
Either party may change its address by giving the other party notice
\nof such change in any manner permitted by this paragraph 38.<\/p>\n
39. NAME<\/p>\n
Tenant shall not use the name of the Project for any purpose, other
\nthan as the address of the business conducted by Tenant in the Premises, without
\nthe prior written consent of Landlord.<\/p>\n
40. GOVERNING LAW; SEVERABILITY<\/p>\n
This lease shall in all respects be governed by and construed in
\naccordance with the laws of the State of California. If any provision of this
\nlease shall be held or rendered invalid, unenforceable or ineffective for any
\nreason whatsoever, all other provisions hereof shall be and remain in full force
\nand effect.<\/p>\n
41. DEFINITIONS<\/p>\n
As used in this lease, the following words and phrases shall have the
\nfollowing meanings:<\/p>\n
Authorized representative: any officer, agent, employee or independent
\n ————————-
\ncontractor retained or employed by either party, acting within authority given
\nhim by that party.<\/p>\n
Encumbrance: any deed of trust, mortgage or other written security
\n ———–
\ndevice or agreement affecting the Premises or the Project that constitutes
\nsecurity for the payment of a debt or performance of an obligation, and the note
\nor obligation secured by such deed of trust, mortgage or other written security
\ndevice or agreement.<\/p>\n
39<\/p>\n
Lease month: the period of time determined by reference to the day of
\n ———–
\nthe month on which the Lease Commencement Date occurs and continuing to one day
\nshort of the same numbered day in the next succeeding month; e.g., the tenth day
\nof one month to and including the ninth day in the next succeeding month.<\/p>\n
Lender: the beneficiary, mortgagee or other holder of an encumbrance,
\n ——
\nas defined above.<\/p>\n
Lien: a charge imposed on the Premises by someone other than Landlord,
\n —-
\nby which the Premises are made security for the performance of an act. Most of
\nthe liens referred to in this lease are mechanic’s liens.<\/p>\n
Maintenance: repairs, replacement, repainting and cleaning.
\n ———– <\/p>\n
Monthly rent: the sum of the monthly payments of basic rent and
\n ————
\ncommon area charges.<\/p>\n
Person: one or more human beings, or legal entities or other
\n ——
\nartificial persons, including, without limitation, partnerships, corporations,
\ntrusts, estates, associations and any combination of human being and legal
\nentities.<\/p>\n
Provision: any term, agreement, covenant, condition, clause,
\n ———
\nqualification, restriction, reservation or other stipulation in the lease that
\ndefines or otherwise controls, establishes or limits the performance required or
\npermitted by either party.<\/p>\n
Rent: basic rent, common area charges, additional rent, and all other
\n —-
\namounts payable by Tenant to Landlord required by this lease or arising by
\nsubsequent actions of the parties made pursuant to this lease.<\/p>\n
Words used in any gender include other genders. If more than one individual
\nor entity comprises Tenant, the obligations imposed on each individual or entity
\nthat comprises Tenant under this Lease are and shall be joint and several. All
\nprovisions whether covenants or conditions, on the part of Tenant shall be
\ndeemed to be both covenants and conditions. The paragraph headings are for
\nconvenience of reference only and shall have no effect upon the construction or
\ninterpretation of any provision hereof.<\/p>\n
42. TIME<\/p>\n
Time is of the essence of this lease and of each and all of its
\nprovisions.<\/p>\n
40<\/p>\n
43. INTEREST ON PAST DUE OBLIGATIONS; LATE CHARGE<\/p>\n
Any amount due from Tenant to Landlord hereunder which is not paid
\nwhen due shall bear interest at the rate of ten percent (10%) per annum from
\nwhen due until paid, unless otherwise specifically provided herein, but the
\npayment of such interest shall not excuse or cure any default by Tenant under
\nthis lease. In addition, Tenant acknowledges that late payment by Tenant to
\nLandlord of basic rent or common area charges or of any other amount due
\nLandlord from Tenant, will cause Landlord to incur costs not contemplated by
\nthis lease, the exact amount of such costs being extremely difficult and
\nimpractical to fix. Such costs include, without limitation, processing and
\naccounting charges, and late charges that may be imposed on Landlord, e.g., by
\nthe terms of any encumbrance and note secured by any encumbrance covering the
\nPremises. Therefore, if any such payment due from Tenant is not received in full
\nby Landlord when due, which payments are subject to application by Landlord as
\nprovided in paragraph 4 of this lease, Tenant shall pay to Landlord an
\nadditional sum of five percent (5%) of the entire payment as a late charge.
\nLandlord shall waive such late charge once per lease year if Tenant pays to
\nLandlord the amount due within three (3) days after the date that Tenant
\nreceives written notice that such amount is past due. The parties agree that
\nthis late charge represents a fair and reasonable estimate of the costs that
\nLandlord will incur by reason of late payment by Tenant. Acceptance of any late
\ncharge shall not constitute a waiver of Tenant’s default with respect to the
\noverdue amount, nor prevent Landlord from exercising any of the other rights and
\nremedies available to Landlord. No notice to Tenant of failure to pay shall be
\nrequired prior to the imposition of such interest and\/or late charge, and any
\nnotice period provided for in paragraph 20 shall not affect the imposition of
\nsuch interest and\/or late charge. Any interest and late charge imposed pursuant
\nto this paragraph shall be and constitute additional rent payable by Tenant to
\nLandlord.<\/p>\n
44. ENTIRE AGREEMENT<\/p>\n
This lease, including any exhibits and attachments, constitutes the
\nentire agreement between Landlord and Tenant relative to the Premises and this
\nlease and the exhibits and attachments may be altered, amended or revoked only
\nby an instrument in writing signed by both Landlord and Tenant. Landlord and
\nTenant agree hereby that all prior or contemporaneous oral agreements between
\nand among themselves or their agents or representatives relative to the leasing
\nof the Premises are merged in or revoked by this lease.<\/p>\n
45. AUTHORITY<\/p>\n
Each individual executing this lease on behalf of Tenant represents
\nand warrants that each individual executing<\/p>\n
41<\/p>\n
this lease is duly authorized to execute and deliver this lease on behalf of
\nTenant and: (a) if Tenant is a corporation, such authorization is in accordance
\nwith a duly adopted resolution of the Board of Directors of said corporation,
\n(b) if Tenant is a partnership, such authorization is in accordance with the
\npartnership agreement now in effect, and (c) if Tenant is a limited liability
\ncompany, such authorization is in accordance with the company’s governing
\ndocuments; and (ii) this lease is binding upon Tenant in accordance with its
\nterms. Upon Landlord’s request, Tenant shall deliver to Landlord within ten (10)
\nbusiness days after such request evidence of the authorization specified above
\nas Landlord may reasonably request, including, without limitation, in the case
\nwhere Tenant is a corporation, a copy of the resolution of the Board of
\nDirectors of Tenant authorizing the execution of this lease and naming the
\nofficers that are authorized to execute this lease on behalf of Tenant, which
\ncopy shall be certified by Tenant’s secretary as correct and in full force and
\neffect.<\/p>\n
46. RECORDING<\/p>\n
Neither Landlord nor Tenant shall record this lease or a short form
\nmemorandum hereof without the consent of the other.<\/p>\n
47. REAL ESTATE BROKERS<\/p>\n
Each party represents and warrants to the other party that it has not
\nhad dealings in any manner with any real estate broker, finder or other person
\nwith respect to the Premises and the negotiation and execution of this lease
\nexcept BT Commercial and Cornish & Carey Commercial (“Tenant’s Brokers”) and
\nCushman & Wakefield and McCandless Management Corporation (“Landlord’s
\nBrokers”). Except for the commissions and fees to be paid to Tenant’s Brokers
\nand Landlord’s Brokers by Landlord pursuant to separate agreement, each party
\nshall indemnify and hold harmless the other party from all damage, loss,
\nliability and expense (including attorneys’ fees and related costs) arising out
\nof or resulting from any claims for commissions or fees that have been or may be
\nasserted against the other party by any broker, finder or other person with whom
\nTenant or Landlord, respectively, has dealt, or purportedly has dealt, in
\nconnection with the Premises and the negotiation and execution of this lease.
\nLandlord shall pay broker leasing commissions to Tenant’s Brokers and Landlord’s
\nBrokers in connection with the Premises and the negotiation and execution of
\nthis lease, to the extent agreed to between Landlord and such brokers per
\nseparate written agreement. Landlord and Tenant agree that Landlord shall not be
\nobligated to pay any broker leasing commissions, consulting fees, finder fees or
\nany other fees or commissions arising out of or relating to any extended term of
\nthis lease or to any expansion or relocation of the Premises at any time.<\/p>\n
48. EXHIBITS AND ATTACHMENTS<\/p>\n
42<\/p>\n
All exhibits and attachments to this lease are a part hereof and the
\nterms and provisions thereof are incorporated into this lease by this reference
\nas though set forth herein in full.<\/p>\n
49. ENVIRONMENTAL MATTERS<\/p>\n
A. Tenant’s Covenants Regarding Hazardous Materials.
\n ———————————————— <\/p>\n
(1) Hazardous Materials Handling. Tenant, its agents, invitees,
\n —————————-
\nemployees, contractors, sublessees, assigns and\/or successors shall not use,
\nstore, dispose, release or otherwise cause to be present or permit the use,
\nstorage, disposal, release or presence of Hazardous Materials (as defined below)
\non or about the Premises or Project, except ordinary office and cleaning
\nsupplies, unless otherwise agreed in writing by Landlord. As used herein
\n“Hazardous Materials” shall mean any petroleum or petroleum by-products,
\nflammable explosives, asbestos, urea formaldehyde, radioactive materials or
\nwaste and any “hazardous substance”, “hazardous waste”, “hazardous materials”,
\n“toxic substance” or “toxic waste” as those terms are defined under the
\nprovisions of the California Health and Safety Code and\/or the provisions of the
\nComprehensive Environmental Response, Compensation and Liability Act (42 U.S.C.
\nSection 9601 et seq.), as amended by the Superfund Amendments and
\nReauthorization Act of 1986 (42 U.S.C. Section 9601 et seq.), or any other
\nhazardous or toxic substance, material or waste which is or becomes regulated by
\nany local governmental authority, the State of California or any agency thereof,
\nor the United States Government or any agency thereof.<\/p>\n
(2) Notices. Tenant shall immediately notify Landlord in writing
\n ——-
\nof: (i) any enforcement, cleanup, removal or other governmental or regulatory
\naction instituted, completed or threatened pursuant to any law, regulation or
\nordinance relating to the industrial hygiene, environmental protection or the
\nuse, analysis, generation, manufacture, storage, presence, disposal or
\ntransportation of any Hazardous Materials (collectively “Hazardous Materials
\nLaws”); (ii) any claim made or threatened by any person against Tenant, the
\nPremises, Project or buildings within the Project relating to damage,
\ncontribution, cost recovery, compensation, loss or injury resulting from or
\nclaimed to result from any Hazardous Materials; and (iii) any reports made to
\nany environmental agency arising out of or in connection with any Hazardous
\nMaterials in, on or removed from the Premises, Project or buildings within the
\nProject, including any complaints, notices, warnings, reports or asserted
\nviolations in connection therewith. Tenant shall also supply to Landlord as
\npromptly as possible, and in any event within five (5) business days after
\nTenant first receives or sends the same, with copies of all claims, reports,
\ncomplaints, notices, warnings or asserted violations relating in any way to the
\nPremises, Project or buildings within the Project or Tenant’s use thereof.
\nTenant shall promptly deliver to Landlord copies of hazardous waste<\/p>\n
43<\/p>\n
manifests reflecting the legal and proper disposal of all Hazardous Materials
\nremoved from the Premises.<\/p>\n
B. Indemnification of Landlord. Tenant shall indemnify, defend (by
\n —————————
\ncounsel acceptable to Landlord), protect, and hold Landlord, and each of
\nLandlord’s partners, employees, agents, attorneys, successors and assigns, free
\nand harmless from and against any and all claims, liabilities, penalties,
\nforfeitures, losses or expenses (including attorneys’ fees) for death of or
\ninjury to any person or damage to any property whatsoever (including water
\ntables and atmosphere), arising from or caused in whole or in part, directly or
\nindirectly, by (i) the presence in, on, under or about the Premises, Project or
\nbuildings within the Project of any Hazardous Materials where such presence was
\ncaused by Tenant, (ii) Tenant’s use, analysis, storage, transportation,
\ndisposal, release, threatened release, discharge or generation of Hazardous
\nMaterials to, in, on, under, about or from the Premises, Project or buildings
\nwithin the Project, or (iii) Tenant’s failure to comply with any Hazardous
\nMaterials Laws whether knowingly, unknowingly, intentionally or unintentionally.
\nTenant’s obligations hereunder shall include, without limitation, and whether
\nforeseeable or unforeseeable, all costs of any required or necessary repair,
\ncleanup or detoxification or decontamination of the Premises, Project or
\nbuildings within the Project, and the preparation and implementation of any
\nclosure, remedial action or other required plans in connection therewith. In
\naddition, Tenant shall reimburse Landlord for (i) losses in or reductions to
\nrental income resulting from Tenant’s use, storage or disposal of Hazardous
\nMaterials, (ii) all costs of refitting or other alterations to the Premises,
\nProject or buildings within the Project required as a result of Tenant’s use,
\nstorage, or disposal of Hazardous Materials including, without limitation,
\nalterations required to accommodate an alternate use of the Premises, Project or
\nbuildings within the Project, and (iii) any diminution in the fair market value
\nof the Premises, Project or buildings within the Project caused by Tenant’s use,
\nstorage, or disposal of Hazardous Materials. For purposes of this paragraph 49,
\nany acts or omissions of Tenant, or by employees, agents, assignees, contractors
\nor subcontractors of Tenant or others acting for or on behalf of Tenant (whether
\nor not they are negligent, intentional, willful or unlawful) shall be strictly
\nattributable to Tenant.<\/p>\n
C. Survival. The provisions of this paragraph 49 shall survive the
\n ——–
\nexpiration or earlier termination of the term of this lease.<\/p>\n
D. Landlord’s Representation. Landlord hereby represents to Tenant
\n ————————-
\nas of the date of execution of this lease by Landlord that, to Landlord’s actual
\nknowledge, without duty to investigate or inquire, there are no Hazardous
\nMaterials on, in <\/p>\n
44<\/p>\n
or under the Project in violation of any Hazardous Materials Laws.<\/p>\n
50. SIGNAGE<\/p>\n
Tenant shall not, without obtaining the prior written consent of Landlord
\n(not to be unreasonably withheld, delayed or conditioned), install or attach any
\nsign or advertising material on any part of the outside of the Premises, or on
\nany part of the inside of the Premises which is visible from the outside of the
\nPremises, or in the halls, lobbies, windows or elevators of the building in
\nwhich the Premises are located or on or about any other portion of the Common
\nArea or Project. Notwithstanding the above, Tenant shall have the right to use
\nthe existing monument sign at the Project and a sign in each Project directory
\n(“Permitted Signage”). With respect to the Permitted Signage and any other
\nsignage consented to by Landlord at any time, such signage, the location, size,
\ndesign, color and other physical aspects thereof shall be subject to Landlord’s
\nprior written approval and shall be in accordance with any sign program
\napplicable to the Project and shall comply with all applicable laws, statutes,
\nrequirements, rules, ordinances and any C.C. & R.’s or other similar
\nrequirements. With respect to any permitted sign installed by or for Tenant,
\nTenant shall maintain such sign or other advertising material in good condition
\nand repair and shall remove such sign or other advertising material on the
\nexpiration or earlier termination of the term of this lease. The cost of any
\npermitted sign or advertising material and all costs associated with the
\ninstallation, maintenance and removal thereof shall be paid for solely by
\nTenant. If Tenant fails to properly maintain or remove any permitted sign or
\nother advertising material, Landlord may do so at Tenant’s expense. Any cost
\nincurred by Landlord in connection with such maintenance or removal shall be
\ndeemed additional rent and shall be paid by Tenant to Landlord within twenty
\n(20) days following notice from Landlord. Landlord may remove any unpermitted
\nsign or advertising material without notice to Tenant and the cost of such
\nremoval shall be additional rent and shall be paid by Tenant within twenty (20)
\ndays following notice from Landlord. Landlord shall not be liable to Tenant for
\nany damage, loss or expense resulting from Landlord’s removal of any sign or
\nadvertising material in accordance with this paragraph 50. The provisions of
\nthis paragraph 50 shall survive the expiration or earlier termination of this
\nlease.<\/p>\n
51. SUBMISSION OF LEASE<\/p>\n
The submission of this lease to Tenant for examination or signature by
\nTenant is not an offer to lease the Premises to Tenant, nor an agreement by
\nLandlord to reserve the Premises for Tenant. Landlord will not be bound to
\nTenant until this lease has been duly executed and delivered by both Landlord
\nand Tenant.<\/p>\n
45<\/p>\n
52. PREMISES TAKEN “AS IS”<\/p>\n
Except as otherwise specifically provided in this lease, Tenant is
\nleasing the Premises from Landlord “as is” in their condition existing as of the
\ndate hereof. Landlord shall have no obligation to alter or improve the Premises.<\/p>\n
53. ADDITIONAL RENT<\/p>\n
All costs, charges, fees, penalties, interest and any other payments
\n(including Tenant’s reimbursement to Landlord of costs incurred by Landlord)
\nwhich Tenant is required to make to Landlord pursuant to the terms and
\nconditions of this lease and any amendments to this lease shall be and
\nconstitute additional rent payable by Tenant to Landlord when due as specified
\nin this lease and any amendments to this lease.<\/p>\n
54. [INTENTIONALLY OMITTED]<\/p>\n
55. INITIAL TENANT IMPROVEMENTS<\/p>\n
Improvements to the Premises shall be constructed and installed in
\naccordance with the plans and specifications, and other terms and conditions set
\nforth in the Tenant Work Letter Agreement attached hereto as Exhibit C, the
\ncontents of which are incorporated herein and made a part hereof by this
\nreference. The Tenant Improvements (as defined in Exhibit C) shall be
\nconstructed and installed at the expense of Landlord and\/or Tenant as set forth
\nin Exhibit C to this lease and in each case shall be performed in a diligent and
\nworkmanlike manner.<\/p>\n
Any upgrades, changes or improvements to the Premises or the Project,
\nwhether or not required by governmental authority, including without limitation,
\nrepair and replacement of HVAC or other building systems, ADA compliance and
\nbuilding code upgrades shall be deemed part of and included in the cost of the
\nTenant Improvements and shall be paid for as specified in Exhibit C.<\/p>\n
56. EARLY ACCESS.<\/p>\n
Upon satisfaction of the conditions to effectiveness set forth in
\nparagraph 59 of this lease, Landlord shall provide Tenant with limited access to
\nthe Premises prior to the Lease Commencement Date, but only for purposes of
\nconstructing the Tenant Improvements in accordance with paragraph 55 above.
\nExcept as specifically provided below, Tenant’s access to the Premises pursuant
\nto this paragraph shall be subject to all the terms and conditions of this
\nlease, including the insurance<\/p>\n
46<\/p>\n
obligations specified in paragraph 11. As a condition precedent to Tenant’s
\nright to such access to the Premises, Tenant shall provide Landlord with proof
\nthat Tenant has satisfied said insurance requirements. Such limited access to
\nthe Premises shall not accelerate the commencement or termination dates of this
\nlease specified in paragraph 2 hereof and except as otherwise provided in
\nparagraph 60 below (Early Possession), Tenant shall not be obligated to pay
\nbasic rent or common area charges until the commencement of the term.<\/p>\n
57. OPTION TO EXTEND TERM.<\/p>\n
Landlord grants to Tenant the option to extend the term for one period
\nof five (5) years (the “Extended Term”) following the expiration of the initial
\nterm set forth in paragraph 2 (“Initial Term”) under all the provisions of this
\nlease except for the amount of the basic rent. The basic rent for the Extended
\nTerm shall be adjusted to the market rate (as defined in paragraph (c) below);
\nprovided that in no event shall the basic rent for the Extended Term be less
\nthan the basic rent in effect at the expiration of the Initial Term. This option
\nis further subject to the following terms and conditions:<\/p>\n
(a) Tenant must deliver its irrevocable written notice of Tenant’s
\nexercise of this option to Landlord not less than twelve (12) lease months, nor
\nmore than fifteen (15) lease months, prior to the expiration of the Initial
\nTerm. Time is of the essence with respect to the time period during which Tenant
\nmust deliver to Landlord its written notice of exercise and, therefore, if
\nTenant fails to give Landlord its irrevocable written notice of its exercise of
\nthis option within the time period provided above then this option shall expire
\nand be of no further force or effect.<\/p>\n
(b) The parties shall have thirty (30) days from the date Landlord
\nreceives Tenant’s notice of exercise in which to agree on the amount
\nconstituting the market rate. If Landlord and Tenant agree on the amount of the
\nmarket rate, they shall immediately execute an amendment to this lease setting
\nforth the expiration date of the Extended Term and the amount of the basic rent
\nto be paid by Tenant during the Extended Term. If Landlord and Tenant are unable
\nto agree on the amount of the market rate within such time period, then, at the
\nrequest of either party, the market rate shall be determined in the following
\nmanner: (i) within ten (10) days of the request of either party, Landlord and
\nTenant shall each select a licensed real estate broker with not less than five
\n(5) years experience in the business of commercial leasing of property of the
\nsame type and use and in the same geographic area, as the Premises; (ii) within
\nfifteen (15) days of their appointment, such two real estate brokers shall
\nselect a third broker who is similarly qualified; (iii) within thirty (30) days
\nfrom the appointment of the third broker, the three brokers so selected shall,
\nacting as a board of arbitrators, then<\/p>\n
47<\/p>\n
determine the amount of the market rate, basing their determination on standard
\nprocedures and tests normally employed in determining market rates and applying
\nthe factors included within the definition of market rate set forth in
\nsubparagraph (c) below. The decision of the majority of said brokers shall be
\nfinal and binding upon the parties hereto. If a majority of the brokers are
\nunable to agree on the market rate within the stipulated period of time, the
\nthree opinions of the market rate shall be added together and their total
\ndivided by three; the resulting quotient shall be the market rate. If, however,
\nthe low opinion and\/or the high opinion are\/is more than 15% lower and\/or higher
\nthan the middle opinion, the low opinion and\/or the high opinion, as the case
\nmay be, shall be disregarded. If only one opinion is disregarded, the remaining
\ntwo opinions shall be added together and their total divided by two and the
\nresulting quotient shall be the market rate. If both the low opinion and the
\nhigh opinion are disregarded as stated in this paragraph, the middle opinion
\nshall be the market rate. If a party does not appoint a qualified broker within
\nthe required time period, the broker appointed by the other party shall be the
\nsole broker and shall determine the market rate. If the two brokers appointed by
\nthe parties are unable to agree on the third broker, either of the parties to
\nthe lease, by giving ten (10) days’ notice to the other party, can apply to the
\nthen president of the county real estate board of the county in which the
\nPremises are located, or to the presiding judge of the superior court of that
\ncounty, for the selection of a third broker who meets the qualifications stated
\nin this paragraph. Each party shall pay the expenses and charges of the brokers
\nappointed by it and the parties shall pay the expenses and charges of the third
\nbroker in equal shares. When the market rate has been so determined, Landlord
\nand Tenant shall immediately execute an amendment to this lease stating the
\nbasic rent for the Extended Term.<\/p>\n
(c) As used herein, the “market rate” shall be the monthly rental
\nrate, including all escalations, then obtained for five (5) year leases with
\ncomparable terms for comparable space in the Project and in buildings and\/or
\nprojects within the same geographical area of similar type, identity, quality
\nand location as the Project and shall take into consideration the following
\nconcessions: (1) rental abatement concessions, if any, being granted to tenants
\nin connection with comparable space; and (2) tenant improvements or allowances
\nbeing provided for comparable space, taking into account the value of the
\nexisting improvements in the Premises.<\/p>\n
(d) Common area charges shall continue to be determined and payable
\nas provided in paragraph 16 of this lease.<\/p>\n
(e) Neither party shall have the right to have any court or other
\nthird party determine the market rate or the basic rent. Tenant shall not assign
\nor otherwise transfer this option or any interest therein and any attempt to do
\nso shall render<\/p>\n
48<\/p>\n
this option null and void. Tenant shall have no right to extend the term beyond
\nthe Extended Term. If Tenant is in default under this lease or an event has
\noccurred which with notice or the passage of time would constitute a default
\nunder this lease at the date of delivery of Tenant’s notice of exercise to
\nLandlord, then such notice shall be of no effect and this lease shall expire at
\nthe end of the Initial Term; if Tenant is in default under this lease on the
\nlast day of the Initial Term, then Landlord may in its sole discretion elect to
\nhave Tenant’s exercise of this option be of no effect, in which case this lease
\nshall expire at the end of the Initial Term.<\/p>\n
(f) The rights contained in this paragraph 57 shall be personal to
\nthe originally named Tenant and may be exercised only by the originally named
\nTenant (and may not be transferred or assigned or exercised by any assignee,
\nsublessee, or other transferee of Tenant’s interest in this lease) and only if
\nthe originally named Tenant occupies the entire Premises as of the date it
\nexercises this option in accordance with the terms of this paragraph 57.<\/p>\n
58. SUBJECT TO GROUND LEASE<\/p>\n
This lease is subject to the provisions of the Ground Lease (defined
\nin paragraph 1 above) covering the Premises between Landlord and Stanford and
\nattached hereto as Exhibit D. During the term of this lease Tenant shall perform
\nall of Landlord’s obligations as Lessee under said Ground Lease, except as
\notherwise stated herein, and shall be subject to all restrictions in said Ground
\nLease, including but not limited to restrictions with respect to the use,
\noccupancy and alteration of the Premises. Tenant hereby acknowledges having
\nreviewed the Ground Lease and approves the provisions of the same. In the event
\nof any conflict in the provisions of this lease and the Ground Lease, the latter
\nshall prevail.<\/p>\n
59. CONDITION TO EFFECTIVENESS<\/p>\n
The effectiveness of this lease is conditioned upon receipt of
\nStanford’s consent hereto at no additional cost or charge to Landlord and
\ntermination of all leases of the current tenants in the Premises. Tenant shall
\nbe responsible for obtaining Stanford’s consent to this lease and approval of
\nthe uses specified herein and shall bear all costs related thereto, including
\nwithout limitation any attorneys fees or other costs or charges of Stanford as
\nmay be required under the Ground Lease. If the foregoing conditions are not
\nsatisfied on or before the date that is thirty (30) days after the date of
\nexecution and delivery of this lease by both parties, then upon written notice
\nof Landlord or Tenant to the other, this lease shall be of no force or effect
\nand Landlord and Tenant shall have no further obligation to each other under
\nthis lease.<\/p>\n
49<\/p>\n
60. EARLY POSSESSION<\/p>\n
Tenant shall be permitted to occupy that portion of the Premises
\nlocated on the third floor as shown on Exhibit E attached hereto (“Early
\nOccupancy Space”). Tenant shall notify Landlord in writing of its intent to
\noccupy the Early Occupancy Space not less than three (3) days prior to the date
\nthat Tenant proposes to commence such occupancy. Commencing on the date that
\nTenant commences business operations in the Early Occupancy Space (the “Early
\nOccupancy Date”), all terms and provisions of this lease shall apply except that
\nTenant’s obligation to pay basic rent shall be Sixty-nine Thousand Eight Hundred
\nThirty-six and 40\/100 Dollars ($69,836.40) per month, Tenant’s percentage share
\nof common area charges shall be twenty-seven and eight one-hundredths percent
\n(27.08%) and Tenant’s payment of its estimated share of common area charges
\nshall be Seven Thousand Nine Hundred Twenty-nine and 24\/100 Dollars ($7,929.24)
\nper month, which amounts are prorated amounts based on the ratio of the square
\nfootage of the Early Occupancy Space to the square footage of the Premises which
\nthe parties agree is twenty-seven and eight one-hundredths percent (27.08%)
\n(20,420 + 75,420). Notwithstanding the early possession permitted hereunder, the
\nLease Commencement Date and the Lease Expiration Date with respect to the entire
\nPremises shall be as defined in paragraph 2 of this lease and the basic rent
\nschedule set forth in paragraph 5 of this lease shall apply to the ten (10) year
\nperiod commencing on the Lease Commencement Date and ending on the Lease
\nExpiration Date.<\/p>\n
61. COUNTERPARTS<\/p>\n
This lease may be executed in any number of counterparts, each of
\nwhich shall be an original, but all of which together shall constitute one
\ninstrument.<\/p>\n
62. HVAC REPLACEMENT<\/p>\n
Tenant agrees, at its cost and expense, to replace the original HVAC
\nunits on the roof no later than two (2) years after execution of this lease.
\nThese units consist of four (4) 40 ton Trane VAV units, four (4) Reznor heaters,
\nand three (3) 10 ton Trane package units. The final specifications and brand of
\nthe equipment and installation will be subject to Landlord’s approval. Landlord
\nshall be notified no less than sixty (60) days prior to commencement of the work
\nrequesting consent and providing all relevant information regarding the
\ninstallation. The new units shall be sized to accommodate all expected heat
\nloads per Landlord’s mechanical engineer’s recommendations. The units will have
\nvariable frequency drives, full economizers, and a new control system for
\neconomical and long term efficient operation to the latest standards in the
\nindustry.<\/p>\n
[Signatures on next page]<\/p>\n
50<\/p>\n
IN WITNESS WHEREOF, Landlord and Tenant have executed and delivered this
\nlease on the date first above written.<\/p>\n
Landlord: Tenant:
\n——– —— <\/p>\n
ARASTRADERO PROPERTY, ALTAVISTA COMPANY
\na California general a Delaware corporation
\npartnership <\/p>\n
By: McCandless – Triad, a
\n California general By: \/s\/ Ken Barber
\n partnership, Partner —————————
\n Name: Ken Barber
\n ————————-
\n By: \/s\/ Jean A. McCandless Title: C.F.O
\n ————————– ————————
\n Jean A. McCandless,
\n as Trustee under the Date: September 13, 1999
\n Charles S. McCandless ————————-
\n and Jean A. McCandless
\n Inter Vivos Trust
\n Agreement dated By: \/s\/ Stephanie Lucie
\n January 25, 1977, —————————
\n Partner Name: Stephanie Lucie
\n ————————-
\n Title: V.P. & General Counsel
\n By: \/s\/ Birk S. McCandless
\n ————————–
\n Birk S. McCandless, Date: September 13, 1999
\n as Trustee under the ————————-
\n Birk S. McCandless
\nand
\n Mary McCandless Inter
\n Vivos Trust Agreement
\n dated February 17,
\n 1982, Partner <\/p>\n
By: \/s\/ Gregory B. McCandless
\n ————————–
\n Gregory B. McCandless,
\n as Trustee under the
\n Gregory B. McCandless
\n and Gloria M.
\n McCandless Inter Vivos
\n Trust Agreement dated
\n November 24, 1982,
\n Partner <\/p>\n
By: Computer Curriculum
\n Partnership, a California
\n general partnership,
\n Partner <\/p>\n
By: \/s\/ Patrick Suppes
\n ————————–
\n Patrick Suppes,
\n Managing Partner
\n 51<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6642],"corporate_contracts_industries":[9510],"corporate_contracts_types":[9583,9579],"class_list":["post-41765","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-altavista-co","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\/41765","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=41765"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41765"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41765"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41765"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}