\n 1. Date of Lease:<\/p>\n 2. Landlord: Connecticut General Life Insurance Company, on
\n behalf of its Separate Account R<\/p>\n
3. Tenant: eBay, Inc., a California corporation<\/p>\n
4. Premises: 2005 Hamilton Avenue, Suite 270
\n San Jose, California<\/p>\n
5. Square Feet: 1,270 sq. ft.<\/p>\n
6. Permitted Use: General Office<\/p>\n
7. Term: Three (3) years
\n (a) Scheduled Commencement Date: October 4, 1996<\/p>\n
(b) Scheduled Expiration Date: October 3, 1999<\/p>\n
8. Rent:
\n (a) Basic Rent: $2,171.70 per month (Lease months 1-36)<\/p>\n
(b) Tenant’s Estimated Share of Common Area
\n Charges: $685.80 per month<\/p>\n
9. Security Deposit: $5,715.00<\/p>\n
10. Parking Spaces Provided: Four (4)<\/p>\n
11. Other Important Provisions
\n<\/c><\/s><\/table>\n
THIS SUMMARY OF LEASE IS INTENDED TO SUMMARIZE CERTAIN KEY PROVISIONS IN THE
\nATTACHED LEASE. IN THE EVENT OF ANY CONFLICT OR INCONSISTENCY BETWEEN THE
\nPROVISIONS OF THIS SUMMARY AND THE LEASE, THE PROVISIONS OF THE LEASE SHALL
\nGOVERN.<\/p>\n
Paragraph Page
\n——— —-<\/p>\n
1. USE
\n2. TERM
\n3. POSSESSION
\n4. MONTHLY RENT
\n5. ADJUSTMENT OF BASIC RENT AND DIRECT EXPENSES
\n6. RESTRICTION ON USE
\n7. COMPLIANCE WITH LAWS
\n8. ALTERATIONS
\n9. REPAIR AND MAINTENANCE
\n10. LIENS
\n11. INSURANCE
\n12. UTILITIES AND SERVICE
\n13. TAXES AND OTHER CHARGES
\n14. ENTRY BY LANDLORD
\n15. COMMON AREA; PARKING
\n16. DAMAGE BY FIRE; CASUALTY
\n17. INDEMNIFICATION
\n18. ASSIGNMENT AND SUBLETTING
\n19. DEFAULT
\n20. LANDLORD’S RIGHT TO CURE TENANT’S DEFAULT
\n21. EMINENT DOMAIN
\n22. NOTICE TO SURRENDER
\n23. TENANT’S QUITCLAIM
\n24. HOLDING OVER
\n25. SUBORDINATION
\n26. CERTIFICATE OF ESTOPPEL
\n27. SALE BY LANDLORD
\n28. ATTORNMENT TO LENDER OR THIRD PARTY
\n29. DEFAULT BY LANDLORD
\n30. CONSTRUCTION CHANGES
\n31. MEASUREMENT OF PREMISES
\n32. ATTORNEY FEES
\n33. SURRENDER
\n34. WAIVER
\n35. EASEMENTS; AIRSPACE RIGHTS
\n36. RULES AND REGULATIONS
\n37. NOTICES
\n38. NAME
\n39. GOVERNING LAW; SEVERABILITY
\n40. DEFINITIONS
\n41. TIME
\n42. INTEREST ON PAST DUE OBLIGATIONS; LATE CHARGE
\n43. ENTIRE AGREEMENT<\/p>\n
44. CORPORATE AUTHORITY
\n 45. RECORDING
\n 46. REAL ESTATE BROKERS
\n 47. EXHIBITS AND ATTACHMENTS
\n 48. ERISA REQUIREMENTS
\n 49. ENVIRONMENTAL MATTERS
\n 50. SIGNAGE
\n 51. SUBMISSION OF LEASE
\n 52. PREMISES LEASED “AS IS”
\n 53. ADDITIONAL RENT
\n 54. LANDLORD’S OPTION TO RELOCATE PREMISES<\/p>\n
OFFICE LEASE<\/p>\n
THIS LEASE is made this 30\/th\/ day of September, 1996, by and between
\nCONNECTICUT GENERAL LIFE INSURANCE COMPANY, a Connecticut corporation, on behalf
\nof its Separate Account R (“Landlord”), and EBAY, INC., a California corporation
\n(“Tenant”).<\/p>\n
WITNESSETH<\/p>\n
Landlord leases to Tenant and Tenant leases from Landlord those certain
\npremises outlined in red on Exhibit A (the “Premises”) which Premises are
\ncommonly known as 2005 Hamilton Avenue, Suite 270, San Jose, California, which
\nLandlord and Tenant hereby agree consists of approximately one thousand two
\nhundred seventy (1,270) square feet. As used herein the term “Project” shall
\nmean and include all of the land described in Exhibit B and all the buildings,
\nimprovements, fixtures and equipment now or hereafter situated on said land.<\/p>\n
Tenant covenants, as a material part of the consideration of this lease, to
\nperform 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. Subject to the restrictions contained in paragraph 6, Tenant
\n —
\nshall use the Premises for general office use and shall not use or permit the
\nPremises to be used for any other purpose.<\/p>\n
2. TERM. The term shall be for three (3) years (unless sooner terminated
\n —-
\nas hereinafter provided) and, subject to paragraph 3, shall commence on October
\n4, 1996 and end on October 3, 1999.<\/p>\n
3. POSSESSION.<\/p>\n
(a) If Landlord for any reason cannot deliver possession of the
\nPremises to Tenant by the scheduled commencement date set forth in paragraph 2,
\nthis lease shall not be void or voidable, Landlord shall not be liable to Tenant
\nfor any loss or damage on account thereof and Tenant shall not be liable for
\nrent until Landlord delivers possession of the Premises to Tenant. If the term
\ncommences on a date other than the date specified in paragraph 2 above, then the<\/p>\n
parties shall immediately execute an amendment to this lease stating the actual
\ndate of commencement. The expiration date of the term shall be extended by the
\nsame number of days that Tenant’s possession of the Premises was delayed from
\nthat set forth in paragraph 2.<\/p>\n
(b) Tenant’s inability or failure to take possession of the Premises
\nwhen delivery is tendered by Landlord shall not delay the commencement of the
\nterm of this lease or Tenant’s obligation to pay rent. Tenant acknowledges that
\nLandlord shall incur significant expenses upon the execution of this lease, even
\nif Tenant never takes possession of the Premises, including without limitation
\nbrokerage commissions and fees, legal fees and other professional fees. Tenant
\nacknowledges that all of said expenses shall be included in measuring Landlord’s
\ndamages should Tenant breach the terms of this lease.<\/p>\n
4. MONTHLY RENT
\n ————<\/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 Thousand One Hundred Seventy-One and 70\/100 Dollars ($2,171.70) on or
\nbefore the first day of the first full calendar month of the term and on or
\nbefore the first day of each and every successive calendar month. Basic rent
\nfor any partial month shall be payable in advance and shall be prorated based on
\nthe actual number of days during the lease term occurring in such month divided
\nby the total number of days in such month.<\/p>\n
(b) Direct Expenses. In addition to the above basic rent and as
\n —————
\nadditional rent, Tenant shall pay to Landlord, subject to adjustment and
\nreconciliation as provided in paragraph 5(b) of this lease, the sum of Six
\nHundred Eighty-Five and 80\/100 Dollars ($685.80) on or before the first day of
\nthe first full calendar month of the term and on the first day of each and every
\nsuccessive calendar month, said sum representing Tenant’s estimated payment of
\nits proportionate share of direct expenses as provided for in paragraph 5(b) to
\nthis lease. Payment for direct expenses for any partial month shall be payable
\nin advance and shall be prorated based on the actual number of days during the
\nlease term occurring in such month divided by the total number of days in such
\nmonth.<\/p>\n
(c) Manner and Place of Payment. All payments of basic rent and
\n —————————
\ndirect expenses shall be paid to Landlord, without deduction or offset, in
\nlawful money of the United States of America, c\/o McCandless Management
\nCorporation at 3945 Freedom Circle, Suite 640, Santa Clara, California, 95054,
\nor to such other person or place as Landlord may from time to time designate in
\nwriting.<\/p>\n
(d) Advance Rent. Concurrently with Tenant’s execution of this lease,
\n ————
\nTenant shall deposit with Landlord the sum of Fourteen Thousand Two Hundred
\nEighty-Seven and 50\/100 Dollars ($14,287.50) to be applied against the basic
\nrent and direct expenses for the first five months of the term.<\/p>\n
(e) Security Deposit. Concurrently with Tenant’s execution of this
\n —————-
\nlease, Tenant shall deposit with Landlord the sum of Five Thousand Seven Hundred
\nFifteen Dollars ($5,715,000), which sum shall be held by Landlord as a security
\ndeposit for the faithful<\/p>\n
5<\/p>\n
performance by Tenant of all of the terms, covenants and conditions of this
\nlease to be kept and performed by Tenant. If Tenant defaults with respect to
\nany provision of this lease, including but not limited to the provisions
\nrelating to the payment of basic rent and direct expenses, Landlord may (but
\nshall not be required to) use, apply or retain all or any part of this security
\ndeposit for the payment of any amount which Landlord may spend by reason of
\nTenant’s default. If any portion of said deposit is so used, Tenant shall,
\nwithin ten (10) days after written demand therefor, deposit cash with Landlord
\nin the amount sufficient to restore the security deposit to its original amount;
\nTenant’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
\nis not in default on the first day of the last lease month of the term of this
\nlease, the sum of Two Thousand Eight Hundred Fifty-Seven and 50\/100 Dollars
\n($2,857.50), if not previously applied by Landlord in accordance with the
\nprovisions of this paragraph 4(e), shall be applied to the basic rent and direct
\nexpenses for the last lease month of the term of this lease. If Tenant is not
\nin default at the expiration or termination of this lease, the security deposit
\nor any balance thereof shall be returned to Tenant after Tenant has vacated the
\nPremises. In the event of termination of Landlord’s interest in this lease,
\nLandlord shall transfer said deposit to Landlord’s successor in interest, and
\nTenant agrees that Landlord shall thereupon be released from liability for the
\nreturn of such deposit or any accounting therefor.<\/p>\n
5. ADJUSTMENT OF BASIC RENT AND DIRECT EXPENSES.
\n ——————————————– <\/p>\n
(a) Adjustments in Basic Rent. The basic rent provided for in
\n ————————-
\nparagraph 4(a) shall not be adjusted during the initial three year term of this
\nlease.<\/p>\n
(b) Adjustments to Direct Expenses. Tenant’s proportionate share of
\n ——————————
\ndirect expenses of the Project shall be fifty-five one-hundredths percent (.55%)
\nand Tenant’s proportionate share of direct expenses of the building in which the
\nPremises are located shall be one and ninety-eight one-hundredths percent
\n(1.98%).<\/p>\n
Tenant shall be required to pay to Landlord, as additional rent in
\naccordance with paragraph 4(b) of this lease, Tenant’s proportionate share of
\ndirect expenses for each calendar year (or portion thereof) during the term of
\nthis lease. Tenant’s estimated share of the monthly direct expenses payable by
\nTenant during the calendar year in which the term commences is set forth in
\nparagraph 4(b) of this lease. A written estimate of Tenant’s monthly share of
\ndirect expenses for each succeeding calendar year shall be delivered to Tenant
\nprior to the commencement of each such succeeding calendar year (or as soon as
\npracticable thereafter). Tenant shall pay to Landlord in accordance with
\nparagraph 4(b) of this lease its monthly share of direct expenses as estimated
\nby Landlord. Landlord reserves the right to revise such written estimate during
\na calendar year if Landlord’s actual or projected direct expenses shows an
\nincrease or decrease in excess of ten percent (10%) from that of an earlier
\nwritten estimate delivered to Tenant, and if Landlord elects to revise the
\nearlier estimate, Landlord shall deliver the revised estimate to Tenant,
\ntogether with an explanation of the reasons therefor, and Tenant shall revise
\nits payments accordingly. Statements of the actual direct expenses for the
\ncalendar year in which the term commences and for each succeeding calendar year
\n(herein called<\/p>\n
6<\/p>\n
“statement of actual direct expenses”) shall be delivered to Tenant within one
\nhundred twenty (120) days following the expiration of each such calendar year
\n(or as soon as practicable thereafter). If the statement of actual direct
\nexpenses for any such calendar year shows that Tenant’s proportionate share of
\nactual direct expenses for the year is in excess of the aggregate amount Tenant
\nhas paid as direct expenses for that calendar year, Tenant shall pay such excess
\nto Landlord within ten (10) days after receipt of the statement of actual direct
\nexpenses. If Tenant fails to pay such excess amount due within said ten (10) day
\nperiod, Tenant shall pay an additional ten percent (10%) of the amount due as a
\npenalty. In the event that any statement of actual direct expenses shall show
\nthat Tenant has paid Landlord an aggregate amount in excess of the actual direct
\nexpenses for the preceding calendar year and Tenant is not in default in the
\nperformance or observance of any of the terms, covenants or conditions of this
\nlease at the time such statement of actual direct expenses is delivered,
\nLandlord shall, at its option, promptly either refund such excess to Tenant or
\ncredit the amount thereof to the monthly direct expenses next becoming due from
\nTenant. The respective obligations of Landlord and Tenant under this paragraph
\nshall survive the expiration or other termination of this lease.<\/p>\n
As used in this lease, “direct expenses” shall include, but not be limited
\nto, (i) real property taxes, assessments, and other costs identified as direct
\nexpenses in paragraph 13; (ii) insurance premiums and other costs identified as
\ndirect expenses in paragraph 11; (iii) the cost of all utilities and services
\nincluding water, gas, and sewer charges, electricity, heat, air conditioning,
\nrefuse collection, and janitorial services identified as direct expenses in
\nparagraph 12; (iv) the costs of operating and maintaining the Common Area
\nidentified as direct expenses in paragraph 15, including, but not limited to,
\nthe landscaping, elevators, parking lots, paving, sidewalks, showers, the
\nGreylands Mansion, and security and exterminator services; (v) the costs and
\nexpenses of maintaining and repairing the Project identified as direct expenses
\nin paragraph 9, including but not limited to, mechanical, electrical, plumbing
\nand sewage systems, windows, glazing, gutters, down-spouts, heating and
\nventilating and air conditioning systems, walls, floor coverings, roofs,
\nstructural elements, exterior walls, and the cost of maintenance contracts and
\nsupplies, materials, equipment and tools used in connection therewith; (vi) the
\ncost of certain alterations identified as direct expenses in paragraph 8; (vii)
\namortization of such capital improvements having a useful life greater than one
\nyear as Landlord may have installed for the purpose of reducing operating costs
\nand\/or to comply with all laws, rules and regulations of federal, state, county,
\nmunicipal and other governmental authorities now or hereafter in effect
\n(Tenant’s share of such capital improvement shall equal Tenant’s proportionate
\nshare of the fraction of the cost of such capital improvement equal to the
\nremaining term of the lease over the useful life of such capital improvement);
\n(viii) wages, salaries, employee benefits (including union benefits) and related
\nexpenses of all on-site and off-site personnel engaged in the operation,
\nmanagement and maintenance of the Project (or the building in which the Premises
\nare located) and payroll taxes applicable thereto and all costs incurred to
\nmaintain a management office in or near the Project (including, without
\nlimitation, rental payments therefor or the reasonable rental value of the space
\nso occupied); (ix) supplies, materials, equipment and tools used or required in
\nconnection with the operation and maintenance of the Project; (x) licenses,
\npermits and inspection fees; (xi) a reasonable reserve for repairs and
\nreplacement of equipment used in the maintenance and operation of the Project;
\nand (xii) all other operating costs incurred by Landlord in maintaining and
\noperating the Project.<\/p>\n
7<\/p>\n
6. RESTRICTION ON USE. Tenant shall not do or permit to be done in or
\n ——————
\nabout the Premises or the Project, nor bring or keep or permit to be brought or
\nkept in or about the Premises or Project, anything which is prohibited by or
\nwill in any way increase the existing rate of (or otherwise affect) fire or any
\nother insurance covering the Project or any part thereof, or any of its
\ncontents, or will cause a cancellation of any insurance covering the Project or
\nany part thereof, or any of its contents. Tenant shall not do or permit to be
\ndone anything in or about the Premises or the Project which will constitute
\nwaste or which will in any way obstruct or interfere with the rights of other
\ntenants or occupants of the Project or injure or annoy them, or use or allow the
\nPremises to be used for any unlawful purpose, nor shall Tenant cause, maintain
\nor permit any nuisance in or about the Premises or the Project. No loudspeaker
\nor other device, system or apparatus which can be heard outside the Premises
\nshall be used in or at the Premises without the prior written consent of
\nLandlord. Tenant shall not use the Premises for sleeping, washing clothes,
\ncooking or in any manner that will cause or emit any objectionable odor, noise
\nor light into the adjoining premises or Common Area. Tenant shall not do
\nanything on the Premises that will cause damage to the Project or the building
\nin which the Premises are located and Tenant shall not overload the floor
\ncapacity of the Project. No machinery, apparatus or other appliance shall be
\nused or operated in or on the Premises that will in any manner injure, vibrate
\nor shake the Premises. Landlord shall be the sole judge of whether such odor
\nnoise, light or vibration is such as to violate the provisions of this
\nparagraph. No waste materials or refuse shall be dumped upon or permitted to
\nremain upon any part of the Premises or outside of the building proper except in
\ntrash containers placed inside exterior enclosures designated for that purpose
\nby Landlord, or inside of the building proper where designated; and no toxic or
\nhazardous material shall be disposed of through the plumbing or sewage system.
\nNo materials, supplies, equipment, finished products or semi-finished products,
\nraw materials or articles of any nature shall be stored or permitted to remain
\noutside of the building proper. No retail sales shall be made on the Premises.<\/p>\n
7. COMPLIANCE WITH LAWS. Tenant shall, in connection with its use and
\n ——————–
\noccupation of the Premises, at its sole cost and expense, promptly observe and
\ncomply with (i) all laws, statutes, ordinances and governmental rules,
\nregulations and requirements of federal, state, county, municipal and other
\ngovernmental authorities, now or hereafter in effect, which shall impose any
\nduty upon Landlord or Tenant with respect to the use, occupancy or alteration of
\nthe Premises, (ii) with the requirements of any board of fire underwriters or
\nother similar body now or hereafter constituted and (iii) with any direction or
\noccupancy certificate issued pursuant to law by any public authority; provided,
\nhowever, that no such failure shall be deemed a breach of these provisions if
\nTenant, immediately upon notification, commences to remedy or rectify said
\nfailure. The judgment of any court of competent jurisdiction or the admission
\nof Tenant in any action against Tenant (whether or not Landlord is a party
\nthereto) 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 of 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<\/p>\n
8. ALTERATIONS. Tenant shall not make or suffer to be made any
\n ———–
\nalteration, addition or improvement to or of the Premises or any part thereof
\n(collectively referred to herein as “alterations”) without (i) the prior written
\nconsent of Landlord, (ii) a valid building permit issued by the appropriate
\ngovernmental authority and (iii) otherwise complying with all applicable laws,
\nregulations and requirements of governmental agencies having jurisdiction and
\nwith the rules, regulations and requirements of any board of fire underwriters
\nor similar body. Landlord’s consent to any requested alteration shall not create
\non the part of Landlord or cause Landlord to incur any responsibility or
\nliability for such alteration’s compliance with all laws, rules and regulations
\nof federal, state, municipal, county and other governmental authorities. Any
\nalteration made by Tenant (excluding moveable furniture and trade fixtures not
\nattached to the Premises) shall at once become a part of the Premises and belong
\nto Landlord. Without limiting the foregoing, all heating, lighting, electrical
\n(including all wiring, conduit, outlets, drops, buss ducts, main and subpanels),
\nair conditioning, partitioning, drapery, window covering and carpet
\ninstallations made by Tenant, regardless of how attached to the Premises,
\ntogether with all other alterations that have become an integral part of the
\nbuilding in which the Premises are a part, shall be and become part of the
\nPremises and belong to Landlord upon installation and shall not be deemed trade
\nfixtures and, subject to Landlord’s right to require removal and restoration as
\nspecified herein, shall remain upon and be surrendered with the Premises at the
\ntermination of the lease.<\/p>\n
If Landlord consents to the making of any alteration by Tenant, the
\nsame shall be made by Tenant at its sole risk, cost and expense and only after
\nLandlord’s written approval of any contractor or person selected by Tenant for
\nthat purpose, and the same shall be made at such time and in such manner as
\nLandlord may from time to time designate. Tenant shall, if required by
\nLandlord, secure at Tenant’s cost a completion and lien indemnity bond for such
\nwork. Upon the expiration or sooner termination of the term, Landlord may, at
\nits sole option, require Tenant, at Tenant’s sole cost and expense, to promptly
\nremove any such alteration made by Tenant and designated by Landlord to be
\nremoved, repair any damage to the Premises caused by such removal and restore
\nthe Premises to their condition prior to Tenant’s alteration. Any moveable
\nfurniture and equipment or trade fixtures remaining on the Premises at the
\nexpiration or other termination of the term shall become the property of the
\nLandlord; provided, however, in addition to all other remedies available to
\nLandlord at law or in equity, Landlord may (i) require Tenant to remove same or
\n(ii) remove same at Tenant’s cost, and Tenant shall be liable to Landlord for
\nall damages incurred by Landlord related thereto.<\/p>\n
If during the term any alteration, addition or change of the Premises
\nis required by law, regulation, ordinance or order of any public authority,
\nTenant, at its sole cost and expense, shall promptly make the same. If during
\nthe term any alterations, additions or changes to the Common Area or to the
\nProject or building in which the Premises is located is required by law,
\nregulation, ordinance or order of any public or quasi-public authority, and it
\nis impractical, in Landlord’s judgment, for the affected tenants to individually
\nmake such alterations, additions or changes, Landlord shall make such
\nalterations, additions or changes and the cost thereof shall be a direct expense
\nand Tenant shall pay its percentage share of said cost to Landlord as provided
\nin paragraphs 4 and 5.<\/p>\n
9<\/p>\n
9. REPAIR AND MAINTENANCE. Subject to paragraph 16, Landlord shall
\n ———————-
\nmaintain and keep in good repair the Common Area (including, without limitation,
\nthe Greylands Mansion) and the mechanical, electrical, plumbing and sewage
\nsystems, windows, window frames, plate glass, glazing, elevators, gutters and
\ndown-spouts, the roof, exterior walls, structural elements and the heating,
\nventilating and air conditioning systems (except special air conditioning of
\nTenant’s computer room(s) as set forth below) of the Premises and the Project;
\nprovided, however, that Landlord shall not be required to perform repairs made
\nnecessary by the negligence or abuse of such improvements or property by Tenant
\nor its employees agents, subtenants or permittees. The cost of all maintenance
\nand repairs made by Landlord pursuant to this paragraph 9, including without
\nlimitation maintenance contracts and supplies, materials, equipment and tools
\nused in such repairs and maintenance, shall be direct expenses and Tenant shall
\npay its percentage share of such costs to Landlord as provided in paragraphs 4
\nand 5.<\/p>\n
By entry hereunder Tenant accepts the Premises as being in good and
\nsanitary order, condition and repair. Subject to paragraphs 16 and 21, and
\nexcepting repairs and maintenance required by this paragraph 9 to be made by
\nLandlord, Tenant at its cost shall keep the Premises and every part thereof in
\ngood and sanitary order, condition and repair and Tenant shall be solely
\nresponsible for the cost and maintenance of, and electricity supplied to, any
\nspecial air conditioning for Tenant’s computer facilities. Further, Tenant
\nshall repair (or, at the option of Landlord, reimburse Landlord if Landlord
\nelects to repair) damage to improvements or other property located on or about
\nthe Project where such repairs are made necessary by the negligence of or abuse
\nof such improvements or other property by Tenant or its employees, agents,
\nsubtenants or permittees. Tenant waives all rights under and benefit of
\nCalifornia Civil Code Sections 1932(1), 1941, and 1942 and under any similar
\nlaw, statute or ordinance now or hereafter in effect.<\/p>\n
10. LIENS. Tenant shall keep the Premises and the Project free from any
\n —–
\nliens arising out of any work performed, materials furnished or obligations
\nincurred by Tenant, its agents, employees or contractors. Upon Tenant’s receipt
\nof a preliminary twenty (20) day notice filed by a claimant pursuant to
\nCalifornia Civil Code Section 3097, Tenant shall immediately provide Landlord
\nwith a copy of such notice. Should any lien be recorded against the Project,
\nTenant shall give immediate notice of such lien to Landlord. In the event that
\nTenant shall not, within ten (10) days following the imposition of such lien,
\ncause the same to be released of record, Landlord shall have, in addition to all
\nother remedies provided herein and by law, the right, but no obligation, to
\ncause the same to be released by such means as it shall deem proper, including
\npayment of the claim giving rise to such lien. All sums paid by Landlord for
\nsuch purpose, and all expenses (including attorneys’ fees) incurred by it in
\nconnection therewith, shall be payable to Landlord by Tenant on demand with
\ninterest at the rate of twelve percent (12%) per annum or the maximum rate
\npermitted by law, whichever is less. Landlord shall have the right at all times
\nto post and keep posted on the Premises any notices permitted or required by
\nlaw, or which Landlord shall deem proper for the protection of Landlord, the
\nPremises and the Project and any other party having an interest therein, from
\nmechanics’ and materialmen’s liens and like liens. Tenant shall give Landlord
\nat least fifteen (15) days’ prior notice of the date of commencement of any
\nconstruction on the Premises in order to permit the posting of such notices. In
\nthe event Tenant is required to post an improvement bond with a public agency in
\nconnection with any<\/p>\n
10<\/p>\n
work performed by Tenant on or to the Premises, Tenant shall include Landlord as
\nan additional obligee.<\/p>\n
11. INSURANCE. Tenant, at its sole cost and expense, shall keep in force
\n ———
\nduring the term (i) commercial general liability and property damage insurance
\nwith a combined single limit of at least $2,000,000 per occurrence insuring
\nagainst personal or bodily injury to or death of persons occurring in, on or
\nabout the Premises or Project and any and all liability of the insureds with
\nrespect to the Premises or arising out of Tenant’s maintenance, use or occupancy
\nof the Premises and all areas appurtenant thereto, (ii) direct physical loss-
\nspecial insurance 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) Workers’
\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 cancelled 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 location using ISO Bureau Form CG25041185 (or a
\nsuccessor form) or such other endorsement form reasonably acceptable to
\nLandlord; and shall be issued by an insurance company admitted to transact
\nbusiness in the State of California and rated A+VIII or better in Best’s
\nInsurance Reports (or successor report). The deductibles for all insurance
\nrequired to be maintained by Tenant hereunder shall be satisfactory to Landlord.
\nThe commercial general liability insurance carried by Tenant shall specifically
\ninsure the performance by Tenant of the indemnification provisions set forth in
\nparagraph 17 of this lease provided, however, nothing contained in this
\nparagraph 11 shall be construed to limit the liability of Tenant under the
\nindemnification provisions set forth in said paragraph 17. If Landlord or any of
\nthe additional insureds named on any of Tenant’s insurance, have other insurance
\nwhich is applicable to the covered loss on a contributing, excess or contingent
\nbasis, the amount of the Tenant’s insurance company’s liability under the policy
\nof insurance maintained by Tenant shall not be reduced by the existence of such
\nother insurance. Any insurance carried by Landlord or any of the additional
\ninsureds named on Tenant’s insurance policies shall be excess and non-
\ncontributing with the insurance so provided by Tenant.<\/p>\n
Tenant shall, prior to the commencement of the term and at least
\nthirty (30) days prior to any renewal date on 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<\/p>\n
11<\/p>\n
otherwise comply with changes in connection with said commercial general
\nliability, property damage, direct physical loss and Workers’ Compensation
\nInsurance as Landlord or Landlord’s lender may from time to time require.<\/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. The cost of all such insurance
\npurchased by Landlord, plus any charges for deferred payment of premiums and the
\namount of any deductible incurred upon any covered loss within the Project,
\nshall be direct expenses and Tenant shall pay to Landlord its percentage share
\nof such costs as provided in paragraphs 4(b) and 5(b). If the cost of insurance
\nis increased due to Tenant’s use of the Premises, then Tenant shall pay to
\nLandlord upon demand the full cost 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, Landlord may, but shall not be obligated to, take
\nout the necessary insurance and pay the premium therefor, and Tenant shall repay
\nto Landlord 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 attorneys’ fees) and
\ndamages which Landlord may sustain by reason of the failure of Tenant to obtain
\nand maintain such insurance, it being expressly declared that the expenses and
\ndamages of Landlord shall not be limited to the amount of the premiums thereon.<\/p>\n
12. UTILITIES AND SERVICE. Landlord shall furnish to the Premises and to
\n ———————
\nthe building in which the Premises are located, during reasonable hours of
\ngenerally recognized business days, to be determined by Landlord, and subject to
\nthe rules and regulations of the Project, reasonable quantities of water and
\nelectricity suitable for the intended use of the Premises and the building in
\nwhich the Premises are located, heat and air conditioning required in Landlord’s
\njudgment for the comfortable use and occupation of the Premises, refuse
\ncollection and janitorial services. Tenant agrees that at all times it will
\ncooperate fully with Landlord and abide by all regulations and requirements that
\nLandlord may prescribe for the proper functioning and protection of the heating,
\nventilating and air conditioning systems. The cost of all utilities and
\nservices furnished by Landlord to the Premises and to the building in which the
\nPremises are<\/p>\n
12<\/p>\n
located pursuant to this paragraph 12 shall be direct expenses and Tenant shall
\npay its percentage share of such costs to Landlord as provided in paragraphs 4
\nand 5.<\/p>\n
Landlord shall not be liable for, and Tenant shall not be entitled to
\nany abatement or reduction of rent by reason of, Landlord’s failure to furnish
\nany of the foregoing services when such failure is caused by accident, breakage,
\nrepairs, strikes, lockouts or other labor disturbances or labor disputes of any
\ncharacter, governmental moratoriums, regulations, or other governmental actions
\nor by any other cause, similar or dissimilar, beyond the reasonable control of
\nLandlord. In addition, Tenant shall not be relieved from the performance of any
\ncovenant or agreement in this lease because or any such failure, and no eviction
\nof Tenant shall result from such failure.<\/p>\n
Tenant will not, without the written consent of Landlord, use any
\napparatus or device in the Premises (including, without limitation, electronic
\ndata processing machines, punch card machines or machines using current in
\nexcess of 110 volts) which will in any way increase the amount of electricity,
\nwater or air conditioning usually furnished or supplied to premises in the
\nProject being used as general office space or connect with electric current
\n(except through existing electrical outlets in the Premises) or with water pipes
\nany apparatus or device for the purpose of using electric current or water. If
\nTenant shall require water or electric current in excess of that usually
\nfurnished or supplied to premises in the Project being used as general office
\nspace then Tenant shall first obtain the written consent of Landlord, which
\nconsent shall not be unreasonably withheld, and Tenant shall pay to Landlord
\npromptly on demand, as additional rent, the full cost of such excess use.
\nLandlord may cause an electric current or water meter to be installed in the
\nPremises in order to measure the amount of electric current or water consumed
\nfor any such excess use. The cost of any such meter and of the installation,
\nmaintenance and repair thereof, and all charges for such excess water and
\nelectric current consumed (as shown by meters and at the rates then charged by
\nthe furnishing public utility) plus any additional expense incurred by Landlord
\nin keeping account of electric current or water so consumed, shall be paid by
\nTenant, and Tenant agrees to pay Landlord therefor promptly upon demand by
\nLandlord. Whenever heat generating machines or equipment are used in the
\nPremises by Tenant which affect the temperature otherwise maintained by the air
\nconditioning system, Landlord shall have the right to install supplementary air
\nconditioning units in the Premises and the cost thereof, including the cost of
\ninstallation and the cost of operation and maintenance thereof, shall be paid by
\nTenant to Landlord upon demand by Landlord.<\/p>\n
13. TAXES AND OTHER CHARGES. All real estate taxes and assessments and
\n ———————–
\nother taxes, fees and charges of every kind or nature, foreseen or unforeseen,
\nwhich are levied, assessed or imposed upon Landlord and\/or against the Premises,
\nbuilding, Common Area or Project or any part thereof by any federal, state,
\ncounty, regional, municipal or other governmental or quasi-governmental
\nauthority or special district authority, together with any increases therein
\nwhether resulting from increased rate and\/or valuation shall be a direct expense
\nand Tenant shall pay its percentage share of such costs to Landlord as provided
\nin paragraphs 4 and 5. By way of illustration and not limitation, “other taxes,
\nfees and charges” as used herein include any and all taxes payable by Landlord
\n(other than state and federal personal or corporate income taxes measured by the
\nnet income of Landlord from all sources, and premium taxes), whether or not now
\ncustomary or within the contemplation of the parties hereto, (i) upon,<\/p>\n
13<\/p>\n
allocable to, or measured by the rent payable hereunder, including, without
\nlimitation, any gross income or excise tax levied by the local, state or federal
\ngovernment with respect to the receipt of such rent, (ii) upon or with respect
\nto the possession, leasing, operation, management, maintenance, alteration,
\nrepair, use or occupancy by Tenant of the Premises or any part thereof, (iii)
\nupon or measured by the value of Tenant’s personal property or leasehold
\nimprovements located in the Premises, (iv) upon this transaction or any document
\nto which Tenant is a party creating or transferring an interest or estate in the
\nPremises, (v) upon or with respect to vehicles, parking or the number of persons
\nemployed on or about the Project, and (vi) any tax, license, franchise fee or
\nother imposition upon Landlord which is otherwise measured by or based in whole
\nor in part upon the Project or any portion thereof. If Landlord contests any
\nsuch tax, fee or charge, the cost and expense incurred by Landlord (including,
\nbut not limited to, costs of attorneys and experts) thereby shall also be direct
\nexpenses and Tenant shall pay its percentage share of such costs to Landlord as
\nprovided in paragraphs 4 and 5. In the event the Premises and any improvements
\ninstalled therein by Tenant or Landlord are valued by the assessor
\ndisproportionately higher than those of other tenants in the building or Project
\nor in the event alterations or improvements are made to the Premises, Tenant’s
\npercentage share of such taxes, assessments, fees and\/or charges shall be
\nreadjusted upward accordingly and Tenant agrees to pay such readjusted share.
\nSuch determination shall be made by Landlord from the respective valuations
\nassigned in the assessor’s work sheet or such other information as may be
\nreasonably available and Landlord’s determination 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
\nproperty shall be assessed with the Project, Tenant shall pay to Landlord, as
\nadditional rent, the amounts attributable to Tenant’s personal property within
\nten (10) days after receipt of a written statement from Landlord setting forth
\nthe amount of such taxes, assessments and public charges attributable to
\nTenant’s personal property.<\/p>\n
14. ENTRY BY LANDLORD. Landlord reserves, and shall at all reasonable
\n —————–
\ntimes have, the right to enter the Premises (i) to inspect the Premises, (ii) to
\nsupply services to be provided by Landlord hereunder, (iii) to show the Premises
\nto prospective purchasers, lenders or tenants and to put, `for sale’ or `for
\nlease’ signs thereon, (iv) to post notices required or allowed by this lease or
\nby law, (v) to alter, improve or repair the Premises and any portion of the
\nProject, and (vi) to erect scaffolding and other necessary structures in or
\nthrough the Premises or the Project where reasonably required by the character
\nof the work to be performed. Landlord shall not be liable in any manner for any
\ninconvenience, disturbance, loss of business, nuisance or other damage arising
\nfrom Landlord’s entry and acts pursuant to this paragraph and Tenant shall not
\nbe entitled to an abatement or reduction of rent if Landlord exercises any
\nrights reserved in this paragraph. For each of the foregoing purposes, Landlord
\nshall at all times have and retain a key with which to unlock all of the doors
\nin, on, and about the Premises (excluding Tenant’s vaults, safes and similar
\nareas designated in writing by Tenant in advance), and Landlord shall have the
\nright to use any and all means which Landlord may deem proper to open said doors
\nin an emergency in order to obtain entry to the Premises. Any entry by Landlord
\nto the Premises <\/p>\n
14<\/p>\n
pursuant to this paragraph shall not under any circumstances be construed or
\ndeemed to be a forcible or unlawful entry into or a detainer of the Premises or
\nan eviction, actual or constructive, of Tenant from the Premises or any portion
\nthereof.<\/p>\n
15. COMMON AREA; PARKING. Subject to the terms and conditions of this
\n ——————–
\nlease and such rules and regulations as Landlord may from time to time
\nprescribe, Tenant and Tenant’s employees and invitees shall, in common with
\nother occupants of the Project, and their respective employees, invitees and
\ncustomers and others entitled to the use thereof, have the nonexclusive right to
\nuse the access roads, parking areas and facilities within the Project provided
\nand designated by Landlord for the general use and convenience of the occupants
\nof the Project (which areas and facilities shall include, but not be limited to,
\ncommon lobbies, corridors, restrooms and showers, part or all of the Greylands
\nMansion and the .37 acre parcel upon which it is located, telephone, electrical,
\njanitorial and mechanical rooms, elevators, stairwells, vertical duct shafts,
\nsidewalks, parking, refuse, landscape and plaza areas, roofs, building
\nexteriors, electrical, mechanical, plumbing and HVAC systems and storage areas)
\nwhich areas and facilities are referred to herein as “Common Area”. This right
\nshall terminate upon 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. 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 the right to
\npromulgate such rules and regulations relating to the use of the Common Area,
\nand any part thereof, as Landlord may deem appropriate for the best interests of
\nthe occupants of the Project. The rules and regulations shall be binding upon
\nTenant upon delivery of a copy of them to Tenant and Tenant shall abide by them
\nand cooperate in their observance. Such rules and regulations may be amended by
\nLandlord from time to time, with or without advance notice.<\/p>\n
Tenant acknowledges that Landlord (as tenant) has leased the Greylands
\nMansion on a month-to-month basis and that such Lease can be terminated on
\nthirty (30) days notice. Upon termination of the lease for the Greylands
\nMansion the Common Area shall thereafter include no part of the Greylands
\nMansion and the .37 acre parcel upon which it is located.<\/p>\n
Tenant shall have the nonexclusive use of four (4) parking spaces in
\nthe Common Area as designated from time to time by Landlord. Landlord reserves
\nthe right at its sole option to assign and label parking spaces, but it is
\nspecifically agreed that Landlord is not responsible for policing any such
\nparking spaces. Tenant shall not at any time park or permit the parking of
\nTenant’s trucks or other vehicles, or the trucks or other vehicles of others,
\nadjacent to loading areas so as to interfere in any way with the use of such
\nareas; nor shall Tenant at any time park or permit the parking of Tenant’s
\nvehicles or trucks, or the vehicles or trucks of Tenant’s suppliers or others,
\nin any portion of the Common Area not designated by Landlord for such use by
\nTenant. Tenant shall not park or permit any inoperative vehicle or equipment to
\nbe parked on any portion of the Common Area.<\/p>\n
15<\/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. The cost of such maintenance, operation and
\nmanagement, including but not limited to landscaping, repair of paving, parking
\nlots and sidewalks, the Greylands Mansion (including interior repair and
\nmaintenance; janitorial services; furniture rental or depreciation charges; and
\nlease payments charged to the Project by the owner of the Greylands Mansion),
\nsecurity and exterminator services and salaries and employee benefits (including
\nunion benefits) of on-site and accounting personnel engaged in such maintenance
\nand operations management, shall be a direct expense and Tenant shall pay to
\nLandlord its percentage share of such cost as provided in paragraphs 4 and 5.<\/p>\n
16. DAMAGE BY FIRE; CASUALTY. In the event the Premises are damaged by
\n ————————
\nany casualty which is covered under an insurance policy required to be
\nmaintained by Landlord pursuant to paragraph 11, Landlord shall be entitled to
\nthe use of all insurance proceeds and shall repair such damage as soon as
\nreasonably possible and this lease shall continue in full force and effect.<\/p>\n
In the event the Premises are damaged by any casualty not covered
\nunder an insurance policy required to be maintained pursuant to paragraph 11,
\nLandlord may, at Landlord’s option, either (i) repair such damage, at Landlord’s
\nexpense, as soon as reasonably possible, in which event this lease shall
\ncontinue in full force and effect, or (ii) give written notice to Tenant within
\nthirty (30) days after the date of the occurrence of such damage of Landlord’s
\nintention to cancel and terminate this lease as of the date of the occurrence of
\nthe damage; provided, however, that if such damage is caused by an act or
\nomission of Tenant or its agent, servants or employees, then Tenant shall repair
\nsuch damage promptly at its sole cost and expense. In the event Landlord elects
\nto terminate this lease pursuant hereto, Tenant shall have the right within ten
\n(10) days after receipt of the required notice to notify Landlord in writing of
\nTenant’s intention to repair such damage at Tenant’s expense, without
\nreimbursement from Landlord, in which event this lease shall continue in full
\nforce and effect and Tenant shall proceed to make such repairs as soon as
\nreasonably possible. If Tenant does not give such notice within the ten (10)
\nday period, this lease shall be cancelled and terminated as of the date of the
\noccurrence of such damage. Under no circumstances shall Landlord be required to
\nrepair any injury or damage to (by fire or other cause), or to make any
\nrestoration or replacement of, any of Tenant’s personal property, trade fixtures
\nor property leased from third parties, whether or not the same is attached to
\nthe 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 said insurance proceeds
\nshall be so applied, Landlord shall promptly repair and restore the<\/p>\n
16<\/p>\n
Premises and this lease shall continue, without interruption, in full force and
\neffect. If the Premises are totally destroyed during the last twelve (12) months
\nof the term, Landlord may at Landlord’s option cancel and terminate this lease
\nas of the date of occurrence of such damage by giving written notice to Tenant
\nof Landlord’s election to do so within thirty (30) days after the occurrence of
\nsuch 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
\nclaim against Landlord for any damage, loss or expense suffered by reason of any
\nsuch damage, destruction, repair or restoration. The parties waive the
\nprovisions of California Civil Code Sections 1932(2) and 1933(4) (which
\nprovisions permit the termination of a lease upon destruction of the leased
\npremises), and hereby agree that the provisions of this paragraph 16 shall
\ngovern in the event of the destruction of the Premises.<\/p>\n
17. INDEMNIFICATION. Landlord shall not be liable to Tenant and Tenant
\n —————
\nhereby waives all claims against Landlord for any injury to or death of any
\nperson or damage to or destruction of property in or about the Premises or the
\nProject by or from any cause whatsoever except the failure of Landlord to
\nperform its obligations under this lease where such failure has persisted for an
\nunreasonable period of time after notice of such failure. Without limiting the
\nforegoing, Landlord shall not be liable to Tenant for any injury to or death of
\nany person or damages to or destruction of property by reason of, or arising
\nfrom, any latent defect in the Premises or Project or the act or negligence of
\nany other tenant of the Project. Tenant shall immediately notify Landlord of
\nany defect in the Premises 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, Tenant shall hold Landlord harmless from and indemnify
\nand defend Landlord against any claim, liability, loss, damage or expense
\n(including attorneys’ fees) arising out of any injury to or death of any person
\nor damage to or destruction of property occurring in, on or about the Premises
\nfrom any cause whatsoever or on account of the use, condition, occupational
\nsafety or occupancy of the Premises. Tenant shall further hold Landlord
\nharmless from and indemnify and defend Landlord against any claim, liability,
\nloss, damage or expense (including attorneys’ fees) arising (i) from Tenant’s
\nuse of the Premises or from the conduct of its business or from any activity or
\nwork done, permitted or suffered by Tenant or its agents or employee, in or
\nabout the Premises or Project, (ii) out of the failure of Tenant to observe or
\ncomply with Tenant’s obligation to observe and comply with laws or other
\nrequirements as set forth in paragraph 7, (iii) by reason of Tenant’s use,
\nhandling, storage, or disposal of toxic or hazardous materials or waste, (iv) by
\nreason of any labor or service performed for, or materials used by or furnished
\nto, Tenant or any contractor engaged by Tenant with respect to the Premises, or
\n(v) from any other act, neglect, fault or omission of Tenant or its agents or
\nemployees.<\/p>\n
The provisions of this paragraph 17 shall survive the expiration or
\nearlier termination of this lease.<\/p>\n
17<\/p>\n
18. ASSIGNMENT AND SUBLETTING. Tenant shall not voluntarily assign,
\n ————————-
\nencumber or otherwise transfer its interest in this lease or in the Premises, or
\nsublease all or any part of the Premises, or allow any other person or entity to
\noccupy or use all or any part of the Premises, without first obtaining
\nLandlord’s written consent, which consent shall not be unreasonably withheld,
\nand otherwise complying with the requirements of this paragraph 18. Any
\nassignment, encumbrance or sublease without Landlord’s consent, shall constitute
\na default.<\/p>\n
If Tenant desires to sublet or assign all or any portion of the
\nPremises, Tenant shall give Landlord written notice thereof, specifying the
\nprojected commencement date of the proposed sublet or assignment (which date
\nshall be not less than thirty (30) days or more than ninety (90) days after the
\ndate of Landlord’s receipt of such notice), the portions of the Premises
\nproposed to be sublet or assigned, the terms and conditions of the proposed
\nassignment or sublease (including the rent to be paid by the proposed assignee
\nor subtenant) and the name, address and telephone number of the proposed
\nassignee or subtenant. Tenant shall further provide Landlord with such other
\ninformation concerning the proposed assignee or subtenant as requested by
\nLandlord. For a period of thirty (30) days after Landlord’s receipt of Tenant’s
\nwritten notice, Landlord shall have the option, exercisable by delivering
\nwritten notice to Tenant, to terminate this lease as of the date specified in
\nLandlord’s written notice to Tenant, which date shall not be less than thirty
\n(30) days nor more than ninety (90) days after the date of Landlord’s written
\nnotice to Tenant. If Landlord exercises its option to terminate this lease as
\nprovided in the foregoing sentence, Landlord may, if it so elects, enter into a
\nnew lease for the Premises or any portion thereof with the proposed assignee or
\nsubtenant or any other third party on such terms as Landlord and such proposed
\nassignee or subtenant or other third party may agree; in such event, Tenant
\nshall not be entitled to any portion of the profit, if any, which Landlord may
\nrealize on account of such termination and reletting.<\/p>\n
If Landlord does not elect to terminate this lease as provided
\nhereinabove in this paragraph 18 and if Landlord consents in writing to the
\nproposed assignment or sublet, Tenant shall be free to assign or sublet all or a
\nportion of the Premises subject to the following conditions: (i) any sublease
\nshall be on the same terms set forth in the notice given to Landlord; (ii) no
\nsublease shall be valid and no subtenant shall take possession of the sublet
\npremises until an executed counterpart of such sublease has been delivered to
\nLandlord; (iii) no subtenant shall have a further right to sublet; (iv) any sums
\nor other economic consideration received by Tenant as a result of such
\nassignment or sublet (except rental or other payments received which are
\nattributable to the amortization over the term of this lease of the cost of
\nleasehold improvements constructed for such assignees or subtenant, and
\nbrokerage fees) whether denominated rentals or otherwise, which exceed, in the
\naggregate, the total sums which Tenant is obligated to pay Landlord under this
\nlease (prorated to reflect obligations allocable to that portion of the Premises
\nsubject to such sublease), shall be payable to Landlord as additional rent under
\nthis lease without affecting or reducing any other obligation of Tenant
\nhereunder; (v) no sublet or assignment shall release Tenant of Tenant’s
\nobligation or alter the primary liability of Tenant to pay the rent and to
\nperform all other obligations to be performed by Tenant hereunder; and (vi) any
\nassignee or subtenant must expressly agree to assume and perform all of the
\ncovenants and conditions of Tenant under this lease. Tenant shall pay to
\nLandlord promptly upon demand as additional rent, Landlord’s actual attorneys’
\nfees and other costs incurred for reviewing, processing or<\/p>\n
18<\/p>\n
documenting any requested assignment or sublease, whether or not Landlord’s
\nconsent is granted. Tenant shall not be entitled to assign this lease or
\nsublease all or any part of the Premises (and any attempt to do so shall be
\nvoidable by Landlord) during any period in which Tenant is in default under this
\nlease.<\/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 18. 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 18.
\nThe term “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, outstanding and entitled to vote. This
\nparagraph shall not apply if Tenant is a corporation the stock of which is
\ntraded through an exchange.<\/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
\nassignment or sublet shall not be deemed consent to any subsequent assignment or
\nsublet. In the event of default by any assignee of Tenant or any successor of
\nTenant in the performance of any of the terms hereof, Landlord may proceed
\ndirectly against Tenant without the necessity of exhausting remedies against
\nsuch assignee or successor. Landlord may consent to subsequent assignments or
\nsublets of this lease or amendments or modifications to this lease with
\nassignees of Tenant, without notifying Tenant, or any successor of Tenant, and
\nwithout obtaining its or their consent thereto and such action shall not relieve
\nTenant of liability under this lease.<\/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
\ndefault by Tenant and Landlord shall have the right to elect to terminate this
\nlease, in which case this lease shall not 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 from any subletting of all
\nor a part of the Premises as permitted by this lease, and Landlord, as assignee
\nand as attorney-in-fact for Tenant, or a receiver of Tenant appointed on
\nLandlord’s application, may collect such rent and apply it toward Tenant’s
\nobligations under this lease; except that, until the occurrence of an act or
\ndefault by<\/p>\n
19<\/p>\n
Tenant, Tenant shall have the right to collect such rent, subject to promptly
\nforwarding to Landlord any portion thereof to which Landlord is entitled
\npursuant to this paragraph 18.<\/p>\n
19. DEFAULT. The occurrence of any of the following shall constitute a
\n ——-
\ndefault by Tenant: (i) failure of Tenant to pay any rent or other sum payable
\nhereunder within three (3) days after the date that such payment becomes due;
\n(ii) abandonment of the Premises (Tenant’s failure to occupy and conduct
\nbusiness in the Premises for fourteen (14) consecutive days shall be deemed an
\nabandonment); (iii) failure of Tenant to deliver to Landlord any instrument,
\nassurance, financial statement, subordination agreement or certificate of
\nestoppel required under this Lease within the time period specified for such
\nperformance if the failure continues for five (5) days after written notice of
\nthe failure from Landlord to Tenant; or (iv) failure of Tenant to perform any
\nother obligation under this lease if the failure to perform is not cured within
\nthirty (30) days after written notice thereof has been given to Tenant (provided
\nthat if such default cannot reasonably be cured within thirty (30) days, Tenant
\nshall not be in default if Tenant commences to cure such failure to perform
\nwithin the thirty (30) day period and diligently and in good faith continues to
\ncure the failure to perform), except in the case of an emergency or dangerous
\ncondition, in which case Tenant’s time to perform shall be that time period
\nwhich is reasonable under the circumstances. The notice referred to in clauses
\n(iii) and (iv) above shall specify the failure to perform and the applicable
\nlease provision and shall demand that Tenant perform the provisions of this
\nlease within the applicable period of time. No notice shall be deemed a
\nforfeiture or termination of this lease unless Landlord so elects in the notice.
\nNo notice shall be required in the event of abandonment or vacation of the
\nPremises.<\/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
\n(30) days from the date a statement therefor has been rendered; the date on
\nwhich any action or proceeding therefor is commenced; or the date on which a
\nformal notice of default or demand has been sent); (ii) Tenant fails to furnish
\nto Landlord a schedule of Tenant’s aged accounts payable within ten (10) days
\nafter Landlord’s written request; (iii) any financial statements given to
\nLandlord by Tenant, any assignee of Tenant, subtenant of Tenant, any guarantor
\nof Tenant, or successor in interest of Tenant (including, without limitation,
\nany schedule of Tenant’s aged accounts payable) are materially false; or (iv)
\nany financial statement or other financial information furnished by Tenant
\npursuant to the provisions of this lease or at the request of Landlord evidences
\nthat either Tenant’s net worth or its net assets are at least twenty-five
\npercent (25%) less than the net worth or net assets shown in either the
\nimmediately prior financial statement or the financial statement of Tenant
\nfurnished at the time of execution of this lease, and Tenant fails to furnish
\npromptly to Landlord, after notice from Landlord to Tenant, an additional
\nsecurity deposit in cash equivalent to the aggregate of the basic rent and
\ncommon area charges (without regard to any rent abatement) payable hereunder for
\nthe twelve (12) full calendar months immediately preceding such notice. At any
\ntime during the term of this lease Landlord, at Landlord’s option, shall have
\nthe right to receive from Tenant, upon Landlord’s request, a current <\/p>\n
20<\/p>\n
annual balance sheet for Landlord’s review. If the balance sheet shows a
\nnegative net worth, Landlord may terminate this lease by giving Tenant sixty
\n(60) days prior written notice.<\/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 (or successor Code section) or any other
\nCalifornia statute. If Landlord relets the Premises, then Tenant shall pay to
\nLandlord, as soon as ascertained, the costs and expenses incurred by Landlord in
\nsuch reletting and in making alterations and repairs. Rentals received by
\nLandlord from such reletting shall be applied (i) to the payment of any
\nindebtedness due hereunder, other than basic rent and direct expenses, from
\nTenant to Landlord; (ii) to the payment of the cost of any repairs necessary to
\nreturn the Premises to good condition normal wear and tear excepted, including
\nthe cost of alterations and the cost of storing any of Tenant’s property left on
\nthe Premises at the time of reletting; and (iii) to the payment of basic rent or
\ndirect expenses due and unpaid hereunder. The residue, if any, shall be held by
\nLandlord and applied in payment of future rent or damages in the event of
\ntermination as the same may become due and payable hereunder and the balance, if
\nany at the end of the term of this lease shall be paid to Tenant. Should the
\nbasic rent and direct expenses received from time to time from such reletting
\nduring any month be less than that agreed to be paid during that month by Tenant
\nhereunder, Tenant shall pay such deficiency to Landlord. Such deficiency shall
\nbe calculated and paid monthly. No such reletting of the Premises by Landlord
\nshall be construed as an election on its part to terminate this lease unless a
\nnotice of such intention is given to Tenant or unless the termination hereof is
\ndecreed by a court of competent jurisdiction. Notwithstanding any such reletting
\nwithout termination, Landlord may at any time thereafter elect to terminate this
\nlease for 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 the immediate right of
\nentry and may remove all persons and property from the Premises and shall have
\nall the rights and remedies of a landlord provided by California Civil Code
\nSection 1951.2 or any successor code section. Upon such termination, in
\naddition to all its other rights and remedies, Landlord shall be entitled to
\nrecover from Tenant all damages it may incur by reason of such breach, including
\nthe cost of recovering the Premises and including (i) the worth at the time of
\naward of the unpaid rent which had been earned at the time of termination; (ii)
\nthe worth at the time of award of the amount by which the unpaid rent which
\nwould have been earned after termination until the time of award exceeds the
\namount of such rental loss that Tenant proves could have been reasonably
\navoided; (iii) the worth at the time of the award of the amount by which the
\nunpaid rent for the balance of the term after the time of award exceeds the
\namount of such rental loss that Tenant proves could be reasonably<\/p>\n
21<\/p>\n
avoided; (iv) any other amount necessary to compensate Landlord for all the
\ndetriment proximately caused by Tenant’s failure to perform its obligations
\nunder this lease or which in the ordinary course of events would be likely to
\nresult therefrom. The “worth at the time of award” of the amounts referred to in
\n(i) and (ii) above is computed by allowing interest at the rate of twelve
\npercent (12%) per annum. The “worth at the time of award” of the amount referred
\nto in (iii) above shall be computed by discounting such amount at the discount
\nrate of the federal reserve bank of San Francisco at the time of award plus one
\npercent (1%). Tenant waives the provisions of Section 1179 of the California
\nCode of Civil Procedure (which Section allows Tenant to petition a court of
\ncompetent jurisdiction for relief against forfeiture of this lease). Property
\nremoved from the Premises may be stored in a public or private warehouse or
\nelsewhere at the sole cost and expense of Tenant. In the event that Tenant shall
\nnot immediately pay the cost of storage of such property after the same has been
\nstored for a period of thirty (30) days or more, Landlord may sell any or all
\nthereof at a public or private sale in such manner and at such times and places
\nthat Landlord, in its sole discretion, may deem proper, without notice to or
\ndemand upon Tenant.<\/p>\n
20. LANDLORD’S RIGHT TO CURE TENANT’S DEFAULT. Landlord, at any time
\n —————————————–
\nafter Tenant commits a default, may, but shall not be obligated to, cure the
\ndefault at Tenant’s cost. If Landlord at any time, by reason of Tenant’s
\ndefault, pays any sum or does any act that requires the payment of any sum, the
\nsum paid by Landlord shall be due immediately from Tenant to Landlord and shall
\nbear interest at the rate of twelve percent (12%) per annum or the maximum rate
\npermitted by law, whichever is less, from the date the sum is paid by Landlord
\nuntil Landlord is reimbursed by Tenant. Amounts due Landlord hereunder shall be
\nadditional rent.<\/p>\n
21. EMINENT DOMAIN. If all or any part of the Premises shall be taken by
\n ————–
\nany public or quasi-public authority under the power of eminent domain or
\nconveyance in lieu thereof, this lease shall terminate as to any portion of the
\nPremises so taken or conveyed on the date when title vests in the condemnor, and
\nLandlord shall be entitled to any payments, income, rent, award or any interest
\ntherein whatsoever 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,
\nTenant shall be entitled to any compensation for depreciation to and cost of
\nremoval of Tenant’s equipment and fixtures and any compensation for its
\nrelocation expenses necessitated by such taking, but in each case only to the
\nextent the condemning authority makes a separate award therefor or specifically
\nidentifies a portion of the award as being therefor. Each party waives the
\nprovisions of Section 1265.130 of the California Code of Civil Procedure (which
\nsection allows either party to petition the Superior Court to terminate this
\nlease in the event of a partial 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 of 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 the right to terminate this lease by giving
\nTenant written notice<\/p>\n
22<\/p>\n
thereof within sixty (60) days of the earlier of the date of Landlord’s receipt
\nof such notice of intention to condemn or the commencement of said action or
\nproceeding. Such termination shall be effective as of the last day of the
\ncalendar month next following the month in which such notice is given or the
\ndate on which title shall 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
22. NOTICE AND COVENANT TO SURRENDER. On the last day of the term or on
\n ——————————–
\nthe effective date of any earlier termination, Tenant shall surrender to
\nLandlord the Premises in its condition existing as of the commencement of the
\nterm and, except as otherwise provided 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 excepted), with all
\noriginally painted interior walls washed or repainted if marked or damaged,
\ninterior vinyl covered walls cleaned and repaired or replaced if marked or
\ndamaged, all carpets shampooed and cleaned, and all floors cleaned and waxed;
\nall to the reasonable satisfaction of Landlord. On or prior to the last day of
\nthe term or the effective date of any earlier termination, Tenant shall remove
\nall of Tenant’s personal property and trade fixtures, together with improvements
\nor alterations that Tenant is obligated to remove pursuant to the provisions of
\nparagraph 8 of this lease, from the Premises, and all such property not removed
\nshall be deemed abandoned. In addition, on or prior to the expiration or earlier
\ntermination of this lease, Tenant shall remove, at Tenant’s sole cost and
\nexpense, all telephone, other communication, computer and any other cabling and
\nwiring of any sort installed in the space above the suspended ceiling of the
\nPremises or anywhere else in the Premises and shall promptly repair any damage
\nto the suspended ceiling, lights, light fixtures, walls and any other part of
\nthe 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, attorneys’ 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 22 shall survive the termination of this
\nlease.<\/p>\n
23<\/p>\n
23. TENANT’S QUITCLAIM. At the expiration or earlier termination of this
\n ——————
\nlease, Tenant shall execute, acknowledge and deliver to Landlord, within ten
\n(10) days after written demand from Landlord to Tenant, any quitclaim deed or
\nother document required to remove the cloud or encumbrance created by this lease
\nfrom the real property or which the Premises are a part. This obligation shall
\nsurvive said expiration or termination.<\/p>\n
24. HOLDING OVER. Any holding over after the expiration or termination of
\n ————
\nthis lease (with the written consent of Landlord delivered to Tenant) shall be
\nconstrued to be a tenancy from month to month at the monthly rent, as adjusted,
\nin effect on the date of such expiration or termination. All provisions of this
\nlease, except those pertaining to the term and any option to extend, shall apply
\nto the month to month tenancy. The provisions of this paragraph are in addition
\nto, and do not affect, Landlord’s right of re-entry or other rights hereunder or
\nprovided by law.<\/p>\n
If Tenant shall retain possession of the Premises or any part thereof
\nwithout Landlord’s consent following the expiration or sooner termination of
\nthis lease for any reason, then Tenant shall pay to Landlord for each day of
\nsuch retention double the amount of the daily rental in effect during the last
\nmonth prior to the date or such expiration or termination. Tenant shall also
\nindemnify and hold Landlord harmless from any loss or liability resulting from
\ndelay by Tenant in surrendering the Premises including without limitation, any
\nclaims made by any succeeding tenant founded on such delay. Acceptance of rent
\nby Landlord following expiration or termination shall not constitute a renewal
\nof this lease, and nothing contained in this paragraph shall waive Landlord’s
\nright of re-entry or any other right. Tenant shall be only a Tenant at
\nsufferance, whether or not Landlord accepts any rent from Tenant, while Tenant
\nis holding over without Landlord’s written consent.<\/p>\n
25. SUBORDINATION. In the event Landlord’s title or leasehold interest is
\n ————-
\nnow or hereafter encumbered in order to secure a loan to Landlord, Tenant shall,
\nat the request of Landlord or the lender, execute in writing an agreement
\nsubordinating its rights under this lease to the lien of such encumbrance, or,
\nif so requested, agreeing that the lien of lender’s encumbrance shall be or
\nremain subject and subordinate to the rights of Tenant under this lease. Tenant
\nhereby irrevocably appoints Landlord the attorney-in-fact of Tenant to execute,
\ndeliver and record any such instrument or instruments for and in the name and on
\nbehalf of Tenant. Notwithstanding any such subordination, Tenant’s possession
\nunder this lease shall not be disturbed if Tenant is not in default and so long
\nas Tenant shall pay all amounts due hereunder and otherwise observe and perform
\nall provisions of this lease. In addition, if in connection with any such loan
\nthe lender shall request reasonable modifications in this lease as a condition
\nto such financing, Tenant will not unreasonably withhold, delay or defer its
\nconsent thereof, provided that such modifications do not increase the
\nobligations of Tenant hereunder or materially adversely affect the leasehold
\ninterest hereby created or Tenant’s rights hereunder.<\/p>\n
26. CERTIFICATE OF ESTOPPEL. Each party shall, within five (5) calendar
\n ———————–
\ndays after request therefor, execute and deliver to the other party, in
\nrecordable form, a certificate stating that the lease is unmodified and in full
\nforce and effect, or in full force and effect as modified and stating the
\nmodifications. The certificate shall also state the amount of the monthly<\/p>\n
24<\/p>\n
rent, the date to which monthly rent has been paid in advance, the amount of the
\nsecurity deposit and\/or prepaid monthly rent, and, if the request is made by
\nLandlord shall include such other items as Landlord or Landlord’s lender may
\nreasonably request. Failure to deliver such certificate within such time shall
\nconstitute a conclusive acknowledgment by the party failing to deliver the
\ncertificate that the lease is in full force and effect and has not been modified
\nexcept as may be represented by the party requesting the certificate. Any such
\ncertificate requested by Landlord may be conclusively relied upon by any
\nprospective purchaser or encumbrancer of the Premises or Project. Further,
\nwithin five (5) calendar days following written request made from time to time
\nby Landlord, Tenant shall furnish to Landlord current financial statements of
\nTenant.<\/p>\n
27. SALE BY LANDLORD. In the event the original Landlord hereunder, or
\n —————-
\nany successor owner of the Project or Premises, shall sell or convey the Project
\nor Premises, all liabilities and obligations on the part of the original
\nLandlord, or such successor owner, under this lease accruing thereafter shall
\nterminate, and thereupon all such liabilities and obligations shall be binding
\nupon the new owner. Tenant agrees to attorn to such new owner and to look
\nsolely to such new owner for performance of any and all such liabilities and
\nobligations.<\/p>\n
28. ATTORNMENT TO LENDER OR THIRD PARTY. In the event the interest of
\n ———————————–
\nLandlord in the land and buildings in which the Premises are located (whether
\nsuch interest of Landlord is a fee title interest or a leasehold interest) is
\nencumbered by deed of trust, and such interest is acquired by a lender or any
\nother third party through judicial foreclosure or by exercise of a power of sale
\nat a private trustee’s foreclosure sale, Tenant hereby agrees to release
\nLandlord of any obligation arising on or after any such foreclosure sale and to
\nattorn to the purchaser at any such foreclosure sale and to recognize such
\npurchaser as the Landlord under this lease.<\/p>\n
29. DEFAULT BY LANDLORD. Landlord shall not be in default unless Landlord
\n ——————-
\nfails to perform obligations required of Landlord within a reasonable time, but
\nin no event earlier than thirty (30) days after written notice by Tenant to
\nLandlord and to the holder of any first mortgage or deed of trust covering the
\nPremises specifying wherein Landlord has failed to perform such obligations;
\nprovided, however, that if the nature of Landlord’s obligations is such that
\nmore than thirty (30) days are required for performance, then Landlord shall not
\nbe in default if Landlord commences performance within such thirty (30) day
\nperiod and thereafter 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<\/p>\n
25<\/p>\n
partners comprising the partnership designated as Landlord shall be personally
\nliable for any deficiency.<\/p>\n
30. CONSTRUCTION CHANGES. It is understood that the description of the
\n ——————–
\nPremises and the location of ductwork, plumbing and other facilities therein are
\nsubject to such changes as Landlord or Landlord’s architect determines to be
\ndesirable in the course of construction of the Premises and\/or the improvements
\nconstructed or being constructed therein, and no such changes or any changes in
\nplans for any other portions of the Project, shall affect this lease or entitle
\nTenant to any reduction of rent hereunder or result in any liability of Landlord
\nto Tenant.<\/p>\n
31. MEASUREMENT OF PREMISES. Tenant understands and agrees that any
\n ———————–
\nreference to square footage of the Premises is approximate only and includes all
\ninterior partitions and columns, one-half of exterior walls, and one-half of the
\npartitions separating the Premises from the rest of the Project, and any outside
\nentry overhang, if applicable. Tenant waives any claim against Landlord
\nregarding the accuracy of any such measurement and agrees that there shall not
\nbe any adjustment in basic rent or direct expenses or other amounts payable
\nhereunder by reason of inaccuracies in such measurement.<\/p>\n
32. ATTORNEY FEES. If either party commences an action against the other
\n ————-
\nparty arising out of or in connection with this lease, the prevailing party
\nshall be entitled to have and recover from the losing party all expenses of
\nlitigation, including, without limitation, travel expenses, attorneys’ fees,
\nexpert witness fees, trial and appellate court costs, and deposition and
\ntranscript expenses. If either party becomes a party to any litigation
\nconcerning 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, attorneys’ fees, expert witness fees, trial and
\nappellate court costs, and deposition and transcript expenses.<\/p>\n
33. SURRENDER. The voluntary or other surrender of this lease or the
\n ———
\nPremises by Tenant, or a mutual cancellation of this lease, shall not work a
\nmerger, and at the option of Landlord shall either terminate all or any existing
\nsubleases or subtenancies or operate as an assignment to Landlord or all or any
\nsuch subleases or subtenancies.<\/p>\n
34. WAIVER. No delay or omission in the exercise of any right or remedy
\n ——
\nof Landlord 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
\nrent or 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 <\/p>\n
26<\/p>\n
consent to or approval of any subsequent act by Tenant. Any waiver by Landlord
\nof any default must be in writing and shall not be a waiver of any other default
\nconcerning the same or any other provision of this lease.<\/p>\n
35. EASEMENTS; AIRSPACE RIGHTS. Landlord reserves the right to alter the
\n ————————–
\nboundaries of the Project and grant easements and dedicate for public use
\nportions of the Project without Tenant’s consent, provided that no such grant or
\ndedication shall interfere with Tenant’s use of the Premises or otherwise cause
\nTenant to incur cost or expense. From time to time, and upon Landlord’s demand,
\nTenant shall execute, acknowledge and deliver to Landlord, and in accordance
\nwith Landlord’s instructions, any and all documents, instruments, maps or plats
\nnecessary to effectuate Tenant’s covenants hereunder.<\/p>\n
This lease confers no rights either with regard to the subsurface of
\nthe land on which the Premises are located or with regard to airspace above the
\nceiling of the Premises. Tenant agrees that no diminution or shutting off of
\nlight or view by a structure which is or may be erected (whether or not by
\nLandlord) on property adjacent to the building of which the Premises are a part
\nor to property adjacent thereto, shall in any way affect this lease, or entitle
\nTenant to any reduction of rent, or result in any liability of Landlord to
\nTenant.<\/p>\n
36. RULES AND REGULATIONS. Landlord shall have the right from time to
\n ———————
\ntime to promulgate rules and regulations for the safety, care and cleanliness of
\nthe Premises, 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
37. NOTICES. Except for legal process which may also be served as
\n ——-
\nprovided by law or as provided herein, all notices, demands, requests, consents
\nand other communications (“Notices”) which may be given or are required to be
\ngiven by either party to the other shall be in writing and shall be deemed given
\nto and received by the party intended to receive such Notice (i) when hand
\ndelivered, (ii) three (3) days after such Notice shall have been deposited,
\npostage prepaid, to the United States Mail, certified return receipt requested,
\nproperly addressed to the address specified herein, or (iii) date or delivery if
\nsent to the address specified herein by reputable overnight courier (e.g.
\nFederal Express or other comparable service), as evidenced by such courier’s
\nrecords.<\/p>\n
Prior to the commencement date, all such Notices from Landlord to Tenant
\nshall be served or addressed to Tenant at 1608 W. Campbell Avenue, Suite 300,
\nCampbell, California 95008. On or after the commencement date all such Notices
\nfrom Landlord to Tenant shall be addressed to Tenant at the Premises.<\/p>\n
All such Notices by Tenant to Landlord shall be sent to Landlord, c\/o CIGNA
\nInvestments, Inc., Real Estate Asset Management, Routing Code S-311, 900 Cottage
\nGrove<\/p>\n
27<\/p>\n
Road, Hartford, CT 06152-2311, with a copy to McCandless Management Corporation,
\n3945 Freedom Circle, Suite 640, Santa Clara, California 95054.<\/p>\n
Either party may change its address to notifying the other of such change.<\/p>\n
38. NAME. Tenant shall not use the name of the Project for any purpose
\n —-
\nother than as the address of the business conducted by Tenant in the Premises
\nwithout the prior written consent of Landlord.<\/p>\n
39. GOVERNING LAW; SEVERABILITY. This lease shall in all respects be
\n —————————
\ngoverned by and construed in accordance with the laws of the State of
\nCalifornia. If any provision of this lease shall be held or rendered invalid,
\nunenforceable or ineffective for any reason whatsoever, all other provisions
\nhereof shall be and remain in full force and effect.<\/p>\n
40. DEFINITIONS. As used in this lease, the following words and phrases
\n ———–
\nshall have the following meanings:<\/p>\n
Authorized representative: any officer, agent, employee or
\n ————————-
\nindependent contractor retained or employed by either party, acting within
\nauthority given him 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
Lease Month: the period of time determined by reference to the day of
\n ———–
\nthe month in which the term commences and continuing to one day short of the
\nsame numbered day in the next succeeding month; e.g., the tenth day of one month
\nto 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
\n —-
\nLandlord, by which the Premises are made security for the performance of an act.
\nMost of the 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 ————
\ndirect expenses.<\/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
28<\/p>\n
Provisions: 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, direct expenses, 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 there be more than
\none Tenant, the obligation of Tenant hereunder are 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
41. TIME. Time is of the essence of this lease and of each and all of its
\n —-
\nprovisions.<\/p>\n
42. INTEREST OF PAST DUE OBLIGATIONS; LATE CHARGE. Any amount due from
\n ———————————————
\nTenant to Landlord hereunder which is not paid when due shall bear interest at
\nthe rate of ten percent (10%) per annum from when due until paid, unless
\notherwise specifically provided herein, but the payment of such interest shall
\nnot excuse or cure any default by Tenant under this lease. In addition, Tenant
\nacknowledges that late payment by Tenant to Landlord of basic rent, or of
\nTenant’s monthly direct expenses, or of any other amount due Landlord from
\nTenant, will cause Landlord to incur costs not contemplated by this lease, the
\nexact amount of such costs being extremely difficult and impractical to fix.
\nSuch costs include, without limitation, processing and accounting charges, and
\nlate charges that may be imposed on Landlord, e.g., by the terms of any
\nencumbrance and note secured by any encumbrance covering the Premises.
\nTherefore, if any such payment due from Tenant is not received by Landlord when
\ndue, Tenant shall pay to Landlord an additional sum of five percent (5%) of the
\noverdue payment as a late charge. The parties agree that this late charge
\nrepresents a fair and reasonable estimate of the costs and Landlord will incur
\nby reason of late payment by Tenant. Acceptance of any late charge shall not
\nconstitute a waiver of Tenant’s default with respect to the overdue amount, nor
\nprevent Landlord from exercising any of the other rights and remedies available
\nto Landlord. No notice to Tenant of failure to pay shall be required prior to
\nthe imposition of such interest and\/or late charge, and any notice period
\nprovided for in paragraph 19 shall not affect the imposition of such interest
\nand\/or late charge. Any interest and late charge imposed pursuant to this
\nparagraph shall be and constitute additional rent payable Tenant to Landlord.<\/p>\n
43. ENTIRE AGREEMENT. This lease, including any exhibits and attachments,
\n —————-
\nconstitutes the entire agreement between Landlord and Tenant relative to the
\nPremises and this lease and the exhibits and attachments may be altered, amended
\nor revoked only by an instrument in writing signed by both Landlord and Tenant.
\nLandlord and Tenant agree hereby that all prior or contemporaneous oral
\nagreements between and among themselves or their agents or representatives
\nrelative to the leasing of the Premises are merged in or revoked by this lease.<\/p>\n
44. CORPORATE AUTHORITY. If Tenant is a corporation, each individual
\n ——————-
\nexecuting this lease on behalf of the corporation represents and warrants that
\nhe is duly<\/p>\n
29<\/p>\n
authorized to execute and deliver this lease on behalf of the corporation in
\naccordance with a duly adopted resolution of the Board of Directors of said
\ncorporation and that this lease is binding upon said corporation in accordance
\nwith its terms. If Tenant is a corporation, Tenant shall deliver to Landlord,
\nwithin ten (10) days of the execution of this lease, a copy of the resolution of
\nthe Board of Directors of Tenant authorizing the execution of this lease and
\nnaming the officers that are authorized to execute this lease on behalf of
\nTenant, which copy shall be certified by Tenant’s secretary as correct and in
\nfull force and effect.<\/p>\n
45. RECORDING. Neither Landlord nor Tenant shall record this lease or a
\n ———
\nshort form memorandum hereof without the consent of the other.<\/p>\n
46. REAL ESTATE BROKERS. Each party represents and warrants to the other
\n ——————-
\nparty that it has not had dealings in any manner with any real estate broker,
\nfinder or other person with respect to the Premises and the negotiation and
\nexecution of this lease except McCandless Management and Contempo Realty.
\nExcept for the commissions and fees to be paid to McCandless Management
\nCorporation and Contempo Realty as provided in this paragraph, each party shall
\nindemnify and hold harmless the other party from all damage, loss, liability and
\nexpense (including attorneys’ fees and related costs) arising out of or
\nresulting 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
\nwhom Tenant 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 commission to McCandless Management
\nCorporation and Contempo Realty in connection with the Premises and the
\nnegotiation and execution of this lease, to the extent agreed to between
\nLandlord and McCandless Management Corporation and Contempo Realty. Landlord
\nand Tenant agree that Landlord shall not be obligated to pay any broker leasing
\ncommissions, consulting fees, finder fees or any other fees or commissions
\narising out of or relating to any extended term of this lease or to any
\nexpansion or relocation of the Premises at any time.<\/p>\n
47. EXHIBITS AND ATTACHMENTS. All exhibits and attachments to this lease
\n ————————
\nare a part hereof.<\/p>\n
48. ERISA REQUIREMENTS. It is understood that Landlord is subject to the
\n ——————
\nEmployee Retirement Income Security Act (“ERISA”) and has furnished to Tenant a
\nlist of individuals and entities, transactions with which might result in a
\nprohibited transaction under ERISA or would otherwise cause a breach of an ERISA
\nrelated requirement. Tenant hereby warrants and represents that Tenant is not
\nrelated to or affiliated with any person or entity shown on the list attached
\nhereto as Exhibit D such that Tenant is a “party in interest” to such person or
\nentity as that term is defined in ERISA Section 3 (14), a copy of which Section
\nis attached hereto as Exhibit E, as that Section may be interpreted or amended.
\nTenant agrees that each time that Landlord makes additions to such list that
\nTenant will either make the warranty requested above or shall disclose to
\nLandlord the relationship with such party on the list that would cause Tenant to
\nbe unable to make such warranty and representation. Tenant agrees to indemnify
\nand hold Landlord harmless from any cost, expense or damages which may result
\nfrom a breach of the warranty and representations made by Tenant.<\/p>\n
30<\/p>\n
49. ENVIRONMENTAL MATTERS.
\n ——————— <\/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. As used herein “Hazardous Materials” shall
\nmean any petroleum or petroleum by-products, flammable explosives, asbestos,
\nurea formaldehyde, radioactive materials or waste and any “hazardous substance”,
\n“hazardous waste”, “hazardous materials”, “toxic substance” or “toxic waste” as
\nthose terms are defined under the provisions of the California Health and Safety
\nCode and\/or the provisions of the Comprehensive Environmental Response,
\nCompensation and Liability Act (42 U.S.C. Section 9601 et seq.), as amended by
\nthe Superfund Amendments and Reauthorization Act of 1986 (42 U.S.C. Section 9601
\net seq.), or any other hazardous or toxic substance, material or waste which is
\nor becomes regulated by any local governmental authority, the State of
\nCalifornia or any agency thereof, or the United States Government or any agency
\nthereof.<\/p>\n
(2) Notices. Tenant shall immediately notify Landlord in
\n ——-
\nwriting of: (i) any enforcement, cleanup, removal or other governmental or
\nregulatory action instituted, completed or threatened pursuant to any law,
\nregulation or ordinance relating to the industrial hygiene, environmental
\nprotection or the use, analysis, generation, manufacture, storage, presence,
\ndisposal or transportation of any Hazardous Materials (collectively “Hazardous
\nMaterials Laws”); (ii) any claim made or threatened by any person against
\nTenant, the Premises, Project or buildings within the Project relating to
\ndamage, contribution, cost recovery, compensation, loss or injury resulting from
\nor claimed 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 manifests
\nreflecting the legal and proper disposal of all Hazardous Materials removed from
\nthe 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 or discharge in or from the Premises, Project or
\nbuildings within the Project of any Hazardous Materials or Tenant’s use,
\nanalysis, storage, transportation, disposal, release, threatened release,
\ndischarge or<\/p>\n
31<\/p>\n
generation of Hazardous Materials to, in, on, under, about or from the Premises,
\nProject or buildings within the Project, or (ii) Tenant’s failure to comply with
\nany Hazardous Materials Laws whether knowingly, unknowingly, intentionally or
\nunintentionally. Tenant’s obligations hereunder shall include, without
\nlimitation, and whether foreseeable or unforeseeable, all costs of any required
\nor necessary repair, cleanup or detoxification or decontamination of the
\nPremises, Project or buildings within the Project, and the preparation and
\nimplementation of any closure, remedial action or other required plans in
\nconnection therewith. In addition, Tenant shall reimburse Landlord for (i)
\nlosses in or reductions to rental income resulting from Tenant’s use, storage or
\ndisposal of Hazardous Materials, (ii) all costs of refitting or other
\nalterations to the Premises, Project or buildings within the Project required as
\na result of Tenant’s use, storage, or disposal of Hazardous Materials including,
\nwithout limitation, alterations required to accommodate an alternate use of the
\nPremises, Project or buildings within the Project, and (iii) any diminution in
\nthe fair market value of the Premises, Project or buildings within the Project
\ncaused by Tenant’s use, storage, or disposal of Hazardous Materials. For
\npurposes of this paragraph 49, any acts or omissions of Tenant, or by employees,
\nagents, assignees, contractors or subcontractors of Tenant or others acting for
\nor on behalf of Tenant (whether or not they are negligent, intentional, willful
\nor unlawful) shall be strictly attributable 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
50. SIGNAGE. Tenant shall not, without obtaining the prior written
\n ——-
\nconsent of Landlord, install or attach any sign or advertising material on any
\npart of the outside of the Premises, or on any part of the inside of the
\nPremises which is visible from the outside of the Premises, or in the halls,
\nlobbies, windows or elevators of the building in which the Premises are located
\nor on or about any other portion of the Common Area or Project. If Landlord
\nconsents to the installation of any sign or other advertising material, the
\nlocation, size, design, color and other physical aspects thereof shall be
\nsubject to Landlord’s prior written approval and shall be in accordance with any
\nsign program applicable to the Project. In addition to any other requirements of
\nthis paragraph 50, the installation of any sign or other advertising material by
\nor for Tenant must comply with all applicable laws, statutes, requirements,
\nrules, ordinances and any C.C. & R.’s or other similar requirements. With
\nrespect to any permitted sign installed by or for Tenant, Tenant shall maintain
\nsuch sign or other advertising material in good condition and repair and shall
\nremove such sign or other advertising material on the expiration or earlier
\ntermination of the term of this lease. The cost of any permitted sign or
\nadvertising material and all costs associated with the installation, maintenance
\nand removal thereof shall be paid for solely by Tenant. If Tenant fails to
\nproperly maintain or remove any permitted sign or other advertising material,
\nLandlord may do so at Tenant’s expense. Any cost incurred by Landlord in
\nconnection with such maintenance or removal shall be deemed additional rent and
\nshall be paid by Tenant to Landlord within ten (10) days following notice from
\nLandlord. Landlord may remove any unpermitted sign or advertising material
\nwithout notice to Tenant and the cost of such removal shall be additional rent
\nand shall be paid by Tenant within ten (10) days following notice from Landlord.
\nLandlord shall not be liable to Tenant for any damage, loss or expense resulting
\nfrom Landlord’s removal of any sign or advertising material in accordance with
\nthis paragraph 50.<\/p>\n
32<\/p>\n
The provisions of this paragraph 50 shall survive the expiration or earlier
\ntermination of this lease.<\/p>\n
51. SUBMISSION OF LEASE. The submission of this lease to Tenant for
\n ——————-
\nexamination or signature by Tenant is not an offer to lease the Premises to
\nTenant, nor an agreement by Landlord to reserve the Premises for Tenant.
\nLandlord will not be bound to Tenant until this lease has been duly executed and
\ndelivered by both Landlord and Tenant.<\/p>\n
52. PREMISES TAKEN “AS IS”. Tenant is leasing the Premises from Landlord
\n ———————-
\n“As Is” in their condition existing as of the date hereof. Landlord shall have
\nno obligation to alter or improve the Premises except Landlord shall, at
\nLandlord’s expense, clean the carpets, touch-up paint where needed using
\nbuilding standard finishes, replace two door handles and add one sidelight (four
\n[4] feet wide) on one office pursuant to the plans attached hereto as Exhibit C.<\/p>\n
53. ADDITIONAL RENT. All costs, charges, fees, penalties, interest, and
\n —————
\nany other payments (including Tenant’s reimbursement to Landlord of costs
\nincurred by Landlord) which Tenant is required to make to Landlord pursuant to
\nthe terms and conditions of this lease and any amendments to this lease shall be
\nand constitute additional rent payable by Tenant to Landlord when due as
\nspecified in this lease and any amendments to this lease.<\/p>\n
54. LANDLORD’S OPTION TO RELOCATE PREMISES. At any time during the
\n ————————————–
\ninitial term and any extended term of this lease, Landlord shall have the option
\nto relocate Tenant to alternate space within the Project which is reasonably
\ncomparable to the Premises in size and type of space (“Relocation Space”).
\nLandlord shall exercise this option to relocate by giving Tenant written notice
\nof Landlord’s election to relocate at least ninety (90) calendar days prior to
\nthe date of relocation and said written notice shall specify the date of
\nrelocation (“Relocation Date”). Upon Tenant’s receipt of Landlord’s written
\nnotice of election to exercise this option, Landlord and Tenant shall cooperate
\nwith each other to identify acceptable space within the Project which shall be
\nthe Relocation Space. If Landlord and Tenant are unable to agree on acceptable
\nspace within sixty (60) days after Tenant’s receipt of Landlord’s written
\nnotice, Landlord shall have the right to unilaterally designate as the
\nRelocation Space any space within the Project which is reasonably comparable to
\nthe Premises in size and type of space. If Landlord and Tenant are unable to
\nagree on acceptable space within sixty (60) days after Tenant’s receipt of
\nLandlord’s written notice and Landlord unilaterally designates the Relocation
\nSpace as provided for in the foregoing sentence, Tenant shall have the option to
\nterminate this lease effective as of the Relocation Date by delivering to
\nLandlord, within five (5) business days after receipt of Landlord’s notice
\ndesignating the Relocation Space, Tenant’s irrevocable written notice of its
\nelection to terminate this lease. In the event Tenant relocates into the
\nRelocation Space as provided in this paragraph 54, commencing on the Relocation
\nDate this lease shall be deemed amended by deleting the description of the
\nPremises as presently constituted and adding the description of the Relocation
\nSpace and Tenant’s lease of the Relocation Space from Landlord shall be subject
\nto all of the terms and conditions of this lease (as amended, if applicable)
\nincluding the payment of basic rent and direct expenses, which shall be adjusted
\nto reflect any increase or decrease in the square footage between the Premises
\nas presently<\/p>\n
33<\/p>\n
constituted and the Relocation Space. Landlord shall pay all reasonable costs
\nincurred in connection with moving Tenant’s business from the Premises into the
\nRelocation Space.<\/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
CONNECTICUT GENERAL LIFE EBAY, INC.,
\nINSURANCE COMPANY, on behalf of a California corporation
\nits Separate Account R<\/p>\n
By: CIGNA Investments, Inc.<\/p>\n
By: \/s\/ JAMES H. ROGERS By: \/s\/ J. SKOLL
\n ———————— ————————<\/p>\n
Name: JAMES H. ROGERS Name: JEFF SKOLL
\n ———————– ———————-<\/p>\n
Its: MANAGING DIRECTOR Its: President
\n ———————– ———————–<\/p>\n
Date: 10\/15\/96 By: \/s\/ PIERRE OMIDYAR
\n ———————- ————————<\/p>\n
Name: PIERRE OMIDYAR
\n ———————–<\/p>\n
Its: : Secretary
\n ———————<\/p>\n
Date: SEPT 30\/96
\n ———————-
\n 34<\/p>\n
FIRST AMENDMENT TO LEASE
\n ————————<\/p>\n
THIS FIRST AMENDMENT TO LEASE (this “Amendment”) is made this 13th day of
\nFebruary, 1997, by and between CONNECTICUT GENERAL LIFE INSURANCE COMPANY, a
\nConnecticut corporation, on behalf of its Separate Account R (“Landlord”) and
\nEBAY, INC., a California corporation (“Tenant”).<\/p>\n
R E C I T A L S<\/p>\n
A. Tenant currently leases from Landlord approximately one thousand two
\nhundred seventy (1,270) square feet of space located at 2005 Hamilton Avenue,
\nSuite 270, San Jose, California (the “Current Premises”), pursuant to that
\ncertain Lease dated September 30, 1996 (the “Lease”). The Current Premises are
\nshown on Exhibit A attached hereto.<\/p>\n
B. Tenant desires to lease additional space from Landlord located at 2005
\nHamilton Avenue, Suite 255, San Jose, California, (the “Expansion Space”),
\nconsisting of approximately one thousand four hundred seventy-one (1,471) square
\nfeet of space. The Expansion Space is shown on Exhibit A attached hereto.<\/p>\n
C. Landlord is willing to lease the Expansion Space to Tenant in
\nconsideration of Tenant’s agreement to the terms and conditions set forth below.<\/p>\n
NOW, THEREFORE, in consideration of the above recitals and the mutual
\ncovenants and agreements contained herein, Landlord and Tenant hereby amend the
\nLease as follows:<\/p>\n
1. PREMISES. The definition of “Premises” is Modified as follows:
\n ——– <\/p>\n
From and after the Effective Date, as defined in paragraph 2 below,
\nthe Expansion Space shall be added to the Current Premises and, thereafter, the
\ntotal area leased shall be increased to two thousand seven hundred forty-one
\n(2,741) square feet and the term “Premises” as used in this Lease shall refer to
\nthe Current Premises and the Expansion Space collectively.<\/p>\n
2. EFFECTIVE DATE. As used herein, the “Effective Date” shall be the
\n ————–
\ndate upon which Landlord tenders possession of the Expansion Space to Tenant,
\nprovided that Landlord shall use reasonable efforts to deliver the Expansion
\nSpace to Tenant on March 4, 1997. Notwithstanding the above, Tenant acknowledges
\nthat the Expansion Space is currently occupied by a third party and if Landlord
\ncannot deliver possession of the Expansion Space to Tenant by March 4, 1997,
\nthis Amendment shall not be void or voidable, Landlord shall not be liable to
\nTenant for any loss or damage sustained by Tenant on account thereof and the
\nEffective Date shall not be deemed to occur until Landlord is able to deliver
\npossession of the Expansion Space to Tenant.<\/p>\n
3. BASIC RENT. Paragraphs 4(a) and 5(a) of the Lease are modified as
\n ———-
\nfollows:<\/p>\n
Commencing on the Effective Date, the basic rent payable by Tenant
\nshall be Four Thousand Seven Hundred Seventy-Five and 37\/100 Dollars
\n($4,775.37).<\/p>\n
4. DIRECT EXPENSES. Paragraphs 4(b) and 5(b) of the Lease are modified
\n —————
\nas follows: <\/p>\n
Commencing on the Effective Date, Tenant’s proportionate share of
\ndirect expenses of the Project as set forth in paragraph 5(b) of the Lease shall
\nbe increased to one and eighteen one-hundredths percent (1.18%) and Tenant’s
\nproportionate share of direct expenses of the building in which the Premises are
\nlocated shall be increased to four and twenty-eight one-hundredths percent
\n(4.28%). Commencing on the Effective Date, Tenant’s payment of its estimated
\nshare of direct expenses shall be increased to One Thousand Six Hundred Sixty
\nand 76\/100 ($1,660.76) per month and shall be reconciled and adjusted thereafter
\nin accordance with paragraph 5(b) of the Lease.<\/p>\n
5. SECURITY DEPOSIT. Paragraph 4(e) of the Lease is modified as follows:
\n —————- <\/p>\n
Upon execution of this Amendment, Tenant shall deposit with Landlord
\nthe additional sum of Three Thousand Five Hundred and 98\/100 Dollars ($3,500.98)
\nwhich shall be held by Landlord as a portion of Tenant’s security deposit
\npursuant to paragraph 4(e) of the Lease. The total amount of the security
\ndeposit held by Landlord shall be increased thereby to a total of Nine Thousand
\nTwo Hundred Fifteen and 98\/l00 Dollars ($9,215.98).<\/p>\n
6. PARKING. Paragraph 15 of the Lease is modified as follows:
\n ——- <\/p>\n
Commencing on the Effective Date, the number of nonexclusive parking
\nspaces which Tenant shall be entitled to use shall be increased to ten (10)
\nspaces.<\/p>\n
7. EXPANSION SPACE LEASED “AS IS.” Tenant is leasing the Expansion Space
\n ——————————
\n“as is” in its current condition and Landlord shall have no obligation to alter,
\nmodify or improve the Expansion Space in any way, except Landlord shall, at
\nLandlord’s cost, prior to the Effective Date clean the carpet and touch-up paint
\nthe interior walls in the Expansion Space as reasonably necessary using building
\nstandard materials.<\/p>\n
8. CORPORATE AUTHORITY. Each individual executing this Amendment on
\n ——————-
\nbehalf of a corporation represents and warrants that he\/she is duly authorized
\nto execute and deliver this Amendment on behalf of the corporation in accordance
\nwith a duly adopted resolution of the Board of Directors of said corporation and
\nthat this Amendment is binding upon said corporation in accordance with its
\nterms. Tenant shall deliver to Landlord, within ten (10) days of the execution
\nand delivery of this Amendment, a copy of the resolution of the Board of
\nDirectors of Tenant authorizing the execution of this Amendment and naming the
\nofficers that are authorized to execute this Amendment on behalf of Tenant,
\nwhich copy shall be certified by Tenant’s President or Secretary as correct and
\nin full force and effect.<\/p>\n
2<\/p>\n
9. RESTATEMENT OF OTHER LEASE TERMS. Except as specifically modified
\n ——————————–
\nherein, all other terms, covenants and conditions of the Lease shall remain in
\nfull force and effect.<\/p>\n
IN WITNESS WHEREOF, the parties hereto execute this Amendment as of the
\ndate first set forth above.<\/p>\n
Landlord: Tenant:
\n——– —— <\/p>\n
CONNECTICUT GENERAL LIFE EBAY, INC.,
\nINSURANCE COMPANY, a California corporation
\na Connecticut corporation, on behalf of
\nits Separate Account R<\/p>\n
By: CIGNA Investments, Inc.
\n Its Authorized Agent<\/p>\n
By: \/s\/ James H. Rogers By: \/s\/ J Skoll
\n ————————— ————————–
\nName: James H. Rogers Name: Jeffrey Skoll
\n ————————— ————————–
\n Managing Director President
\nTitle: ————————— Title: ————————–<\/p>\n
Date: 3\/24\/97 Date: Feb. 13\/97
\n ————————— ————————–<\/p>\n
3<\/p>\n
EXHIBIT A<\/p>\n
Floor Plan<\/p>\n
SECOND AMENDMENT TO LEASE
\n ————————-<\/p>\n
THIS SECOND AMENDMENT TO LEASE (this “Amendment”) is made this _____ day of
\n_________________, 1998, by and between CONNECTICUT GENERAL LIFE INSURANCE
\nCOMPANY, a Connecticut corporation, on behalf of its Separate Account R
\n(“Landlord”) and eBAY, INC., a California corporation (“Tenant”).<\/p>\n
R E C I T A L S<\/p>\n
A. Tenant currently leases from Landlord approximately two thousand seven
\nhundred forty-one (2,741) square feet of space located at 2005 Hamilton Avenue,
\nSuites 255 and 270, San Jose, California (the “Current Premises”), pursuant to
\nthat certain Lease dated September 30, 1996 as amended by that certain First
\nAmendment to Lease dated February 13, 1997 (together, the “Lease”). The Current
\nPremises are shown on Exhibit A attached hereto.<\/p>\n
B. Tenant desires to lease additional space from Landlord located at 2005
\nHamilton Avenue, Suite 250, San Jose, California, (the “Expansion Space”),
\nconsisting of approximately one thousand five hundred seven (1,507) square feet
\nof space. The Expansion Space is shown on Exhibit A attached hereto.<\/p>\n
C. Tenant also desires to reduce the size of the Premises, for purposes
\nof the Lease, by subtracting that certain space located at 2005 Hamilton Avenue,
\nSuite 270, consisting of approximately one thousand two hundred seventy (1,270)
\nsquare feet (the “Reduction Space”) as shown on Exhibit A attached hereto.<\/p>\n
D. Landlord is willing to add the Expansion Space to the Lease and
\nsubtract the Reduction Space from the Lease on the terms and conditions set
\nforth below.<\/p>\n
NOW, THEREFORE, in consideration of the above recitals and the mutual
\ncovenants and agreements contained herein, Landlord and Tenant hereby amend the
\nLease as follows:<\/p>\n
1. PREMISES. The definition of “Premises” is modified as follows:
\n ——– <\/p>\n
From and after the Effective Date, as defined in <\/p>\n
paragraph 2 below, the Expansion Space shall be added to the Current Premises
\nand the Reduction Space shall be subtracted from the Current Premises and,
\nthereafter, the total area leased shall be two thousand nine hundred seventy-
\neight (2,978) square feet and the term “Premises” as used in this Amendment
\nshall refer to the Current Premises minus the Reduction Space plus the Expansion
\nSpace.<\/p>\n
2. EFFECTIVE DATE. As used herein, the “Effective Date” shall be the
\n ————-
\ndate upon which Landlord tenders possession of the Expansion Space to Tenant,
\nprovided that Landlord shall use reasonable efforts to deliver the Expansion
\nSpace to Tenant on April 1, 1998. Notwithstanding the above, Tenant acknowledges
\nthat the Expansion Space is currently occupied by a third party and if Landlord
\ncannot deliver possession of the Expansion Space to Tenant by April 1, 1998,
\nthis Amendment shall not be void or voidable by Tenant, Landlord shall not be
\nliable to Tenant for any loss or damage sustained by Tenant on account thereof
\nand the Effective Date shall not be deemed to occur until Landlord is able to
\ndeliver possession of the Expansion Space to Tenant.<\/p>\n
3. BASIC RENT. Paragraphs 4(a) and 5(a) of the Lease are modified as
\n ———-
\nfollows:<\/p>\n
Commencing on the Effective Date, the basic rent payable by Tenant
\nshall be Seven Thousand Three Hundred Eight-Five and 44\/100 Dollars ($7,385.44)
\nper month for the first twelve (12) lease months thereafter.<\/p>\n
Commencing on the first day of the thirteenth (13th) lease month (the
\n“Adjustment Date”), the monthly basic rent shall be adjusted as follows:<\/p>\n
The Consumer Price Index for All Urban Consumers (base year 1984 = 100) for
\nSan Francisco-Oakland, Metropolitan Area published by the United States
\nDepartment of Labor, Bureau of Labor Statistics (“Index”), which is published
\nfor the date immediately preceding the applicable Adjustment Date (the
\n“Extension Index”), shall be compared with the Index published for the date
\nimmediately preceding the lease commencement date (the “Beginning Index”). The
\nmonthly basic rent payable during the period following the Adjustment Date shall
\nbe equal to the greater of (i) $7,680.86 per month or (ii) the amount obtained
\nby multiplying $7,385.44 by a fraction, the numerator of which is the Extension
\nIndex and the denominator of which is the Beginning Index.<\/p>\n
As soon as the monthly basic rent for each such period is set, Landlord
\nshall give Tenant notice of the amount and the parties shall immediately execute
\nan amendment to the lease stating the new basic rent or otherwise acknowledge in
\nwriting such adjustment in form reasonably acceptable to Landlord. If the Index
\nis changed so that the base year differs from that used for the Beginning Index,
\nthe Index shall be converted in <\/p>\n
2<\/p>\n
accordance with the conversion factor published by the United States Department
\nof Labor, Bureau of Labor Statistics. If the Index is discontinued or revised
\nduring the term, such other government index or computation with which it is
\nreplaced shall be used in order to obtain substantially the same result as would
\nbe obtained if the Index had not been discontinued or revised.<\/p>\n
4. DIRECT EXPENSES. Paragraphs 4(b) and 5(b) of the Lease are modified
\n —————
\nas follows:<\/p>\n
Commencing on the Effective Date, Tenant’s proportionate share of
\ndirect expenses of the Project as set forth in paragraph 5(b) of the Lease shall
\nbe increased to one and twenty-nine one-hundredths percent (1.29%) and Tenant’s
\nproportionate share of direct expenses of the building in which the Premises are
\nlocated shall be increased to four and sixty-five one-hundredths percent
\n(4.65%). Commencing on the Effective Date, Tenant’s payment of its estimated
\nshare of direct expenses shall be increased to One Thousand Eight Hundred Forty-
\nSix and 36\/100 Dollars ($1,846.36) per month and shall be reconciled and
\nadjusted thereafter in accordance with paragraph 5(b) of the Lease.<\/p>\n
5. PARKING. Paragraph 15 of the Lease is modified as follows:
\n ——- <\/p>\n
Commencing on the Effective Date, the number of non-exclusive parking
\nspaces which Tenant shall be entitled to use shall be increased to eleven (11)
\nspaces.<\/p>\n
6. EXPANSION SPACE LEASED “AS IS”. Tenant is leasing the Expansion Space
\n ——————————
\n“as is” in its current condition and Landlord shall have no obligation to alter,
\nmodify or improve the Expansion Space in any way.<\/p>\n
7. TENANT IMPROVEMENTS. Tenant shall construct certain tenant
\n ——————-
\nimprovements (the “Tenant Improvements”) in the Premises as shown and described
\nin Exhibit B attached hereto, subject to the following terms and conditions:<\/p>\n
(a) The Tenant Improvements shall be deemed alterations to the
\nPremises subject to Landlord’s prior written consent and shall be subject to all
\nthe terms and conditions of paragraph 8 of the Lease, except that Tenant shall
\nnot be obligated to remove the Tenant Improvements shown in Exhibit B nor
\nrestore the Premises to its condition prior to construction of the Tenant
\nImprovement to the extent specified in Exhibit B. Tenant shall submit
\npreliminary space plans and final space plans to Landlord for Landlord’s prior
\nwritten consent. Upon Landlord’s approval of the final space plan, Tenant shall
\nthereafter cause to be prepared by licensed architects and engineers a fully
\ncoordinated set of architectural, structural, mechanical, electrical and
\nplumbing working drawings (the “Final Construction Drawings”) for the Tenant
\nImprovements, if <\/p>\n
3<\/p>\n
applicable, and shall submit copies of the Final Construction Drawings to
\nLandlord for Landlord’s approval. After Landlord’s approval of the Final
\nConstruction Drawings, Tenant shall submit the Final Construction Drawings as
\napproved by Landlord to the City to obtain all requisite building permits. No
\nchanges, modifications or alterations to the Final Construction Drawings shall
\nbe made without Landlord’s prior written consent.<\/p>\n
(b) A general contractor shall be retained by Tenant to construct the
\nTenant Improvements. The general contractor shall be subject to Landlord’s
\napproval. Tenant shall only use contractors and subcontractors reasonably
\napproved by Landlord. All of Tenant’s contractors and subcontractors shall
\ncarry workers compensation insurance covering all of their respective employees
\nand shall also carry commercial general liability and property damage insurance,
\nall with limits, in form and with companies as are required to be carried by
\nTenant in paragraph 11 of the Lease. Tenant shall also carry “Builder’s All
\nRisk” insurance in an amount approved by Landlord covering construction of the
\nTenant Improvements and such other insurance as Landlord may reasonably require.
\nCertificates for all insurances required hereunder shall be provided to Landlord
\nprior to commencement of construction of the Tenant Improvements.<\/p>\n
(c) Landlord will be notified at least ten (10) days prior to the
\ncommencement of any construction in order to post a Notice of Non-
\nResponsibility. Tenant agrees to conform with Landlord’s rules and regulations
\nassociated with construction to minimize the disruption to the other tenants in
\nthe building. Any construction which causes significant noise or other
\ndisturbance to the tenants shall be done during non-business hours (evenings
\nafter 6:30 p.m. or weekends). Tenant will require its general contractor to
\nclean the exterior of the Premises daily and shall keep the common areas clean
\nand debris-free at all times and shall park construction vehicles and store
\nmaterials in areas designated by Landlord. Mechanical systems shall be designed
\nso as to not affect the systems of the adjoining suites or otherwise alter the
\nairflow to the other tenants in the building.<\/p>\n
(d) The Tenant Improvements shall be constructed in accordance with
\nall applicable local, state and federal laws, statutes, codes, ordinances, rules
\nand regulations.<\/p>\n
(e) Landlord shall have the right to enter the Premises at all times
\nduring construction of the Tenant Improvements to inspect and monitor such
\nconstruction, but shall have no obligation to do so and assumes no liability or
\nresponsibility for such construction and\/or compliance with laws applicable
\nthereto, which is and shall be Tenant’s sole responsibility.<\/p>\n
8. EARLY ACCESS. Landlord shall provide Tenant with limited access to the
\n ————
\nPremises (including the Expansion Space) when such space becomes available, but
\nonly for purposes of commencing construction of the Tenant Improvements in
\naccordance<\/p>\n
4<\/p>\n
with paragraph 7 above. Tenant’s access shall be coordinated with Landlord.
\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 the Lease,
\nincluding the insurance obligations specified in paragraph 11 of the Lease and
\nparagraph 7 of this Amendment. As a condition precedent to Tenant’s right to
\nsuch access to the Premises, Tenant shall provide Landlord with proof that
\nTenant has satisfied said insurance requirements. Such limited access to the
\nPremises shall not accelerate the Effective Date of this Amendment and Tenant
\nshall not be obligated to pay basic rent or direct expenses until the Effective
\nDate.<\/p>\n
9. CORPORATE AUTHORITY. Each individual executing this Amendment on
\n ——————-
\nbehalf of a corporation represents and warrants that he\/she is duly authorized
\nto execute and deliver this Amendment on behalf of the corporation in accordance
\nwith a duly adopted resolution of the Board of Directors of said corporation and
\nthat this Amendment is binding upon said corporation in accordance with its
\nterms. Tenant shall deliver to Landlord, within ten (10) days of the execution
\nand delivery of this Amendment, a copy of the resolution of the Board of
\nDirectors of Tenant authorizing the execution of this Amendment and naming the
\nofficers that are authorized to execute this Amendment on behalf of Tenant,
\nwhich copy shall be certified by Tenant’s President or Secretary as correct and
\nin full force and effect.<\/p>\n
10. BROKERS. Each party represents that it has not had dealings with any
\n ——-
\nreal estate broker, finder or other person with respect to this Amendment or
\nexpanding the Premises. There are no leasing commissions to be paid by Landlord
\nor Tenant in connection with this transaction. Each party hereto shall hold
\nharmless the other party from all damages, loss or liability resulting from any
\nclaims that may be asserted against the other party by any broker, finder or
\nother person with whom such party has dealt, or purportedly has dealt, in
\nconnection with this transaction.<\/p>\n
11. RESTATEMENT OF OTHER LEASE TERMS. Except as specifically modified
\n ——————————–
\nherein, all other terms, covenants and conditions of the Lease shall remain in
\nfull force and effect.<\/p>\n
[SIGNATURES ON NEXT PAGE]<\/p>\n
5<\/p>\n
IN WITNESS WHEREOF, the parties hereto execute this Amendment as of the
\ndate first set forth above.<\/p>\n
Landlord: Tenant:
\n——— ——-<\/p>\n
CONNECTICUT GENERAL LIFE
\nINSURANCE COMPANY, eBAY, INC.,
\na Connecticut corporation, a California corporation
\non behalf of its Separate
\nAccount R<\/p>\n
By: CIGNA Investments, Inc., By:\/s\/ Margaret C. Whitman
\n a Delaware corporation ———————–
\n Its Authorized Agent Name: Margaret C. Whitman
\n ——————–
\n By:______________________ Title: President
\n ———————<\/p>\n
Date:______________________
\n Name:____________________
\n By: \/s\/ Matthew P. Quilter
\n Title:___________________ ————————
\n Name: Matthew P. Quilter
\n Date:____________________ ———————-
\n Title: Secretary
\n ——————— <\/p>\n
Date:_______________________<\/p>\n
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