Ex-10.20 Office Lease Agreement



 



EXHIBIT 10.20



OFFICE LEASE



     This Office Lease (the “Lease”), dated as of the date set forth in Section
1 of the Summary of Basic Lease Information (the “Summary”), below, is made by
and between SAN TOMAS PROPERTIES, LLC, a Delaware limited liability company
(“Landlord”), and AKAMAI TECHNOLOGIES, INC., a Delaware corporation (“Tenant”).


SUMMARY OF BASIC LEASE INFORMATION




	 	 	 	 	 
	 	 	TERMS OF LEASE	 	DESCRIPTION
	 	 	
	 	

	1.	 	
Date
	 	June 30, 2000
	 	 	 	 	
	2.	 	
Premises	 	 
	 	 	 	 	
	 	 	
2.1 Building:
	 	For purposes of this Lease, the
“Building” shall mean, collectively,
the building located at 2800 San Tomas
Expressway, Santa Clara, California
(the “2800 Building”) and the building
located at 2860 San Tomas Expressway,
Santa Clara, California (the “2860
Building”).
	 	 	 	 	
	 	 	
2.2 Initial Premises:
	 	Approximately 60,650 rentable square
feet of space consisting of the entire
2800 Building and 12,468 rentable
square feet of space in the 2860
Building, as further set forth in
Exhibit A to the Office Lease.
	 
	 	 	
2.3 Additional Premises:
	 	Approximately 35,714 rentable square
feet of space, located in the 2860
Building, as further set forth in
Exhibit A-1 to the Office Lease.



     Prior to the Additional Premises Commencement Date, references to the
“Premises” shall be deemed to refer to the Initial Premises, and on and after
the Additional Premises Commencement Date, references to the “Premises” shall
be deemed to refer to the Initial Premises and the Additional Premises.



	 	 	 	 	 
	 	 	
2.4 Project:
	 	The 2800 Building and the 2860 Building are part
of an office project known as “San Tomas Business
Park,” as further set forth in Section 1.1.2 of
this Lease.



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	3.	 	
Lease Term
(Article 2):	 	 
	 	 	 	 	
	 	 	
3.1 Length of Term:
	 	Ten (10) Years.
	 	 	 	 	
	 	 	
3.2 Lease Commencement Date:
	 	September 1, 2000, subject to
extension pursuant to Article 2 of
the Lease.
	 	 	 	 	
	 	 	
3.3 Lease Expiration Date

(for the entire Premises):
	 	August 31, 2010, subject to
extension based on the actual
Lease Commencement Date.
	 	 	 	 	
	4.	 	
Base Rent (Article 3):	 	 
	 
	 	 	
4.1 Amounts Due	 	 




	 	 	 	 	 	 	 	 	 	 
	 	 	 	Annual	 	Monthly Installment
	Lease Year	 	Base Rent	 	of Base Rent
	
	 	
	 	

	 	1*
	 	$	3,639,000.00	 	 	$	303,250.00	 
	 	1**
	 	$	5,781,840.00	 	 	$	481,820.00	 
	 	2
	 	$	6,013,113.60	 	 	$	501,092.80	 
	 	3
	 	$	6,253,638.10	 	 	$	521,136.51	 
	 	4
	 	$	6,503,783.60	 	 	$	541,981.97	 
	 	5
	 	$	6,763,935.00	 	 	$	563,661.25	 
	 	6
	 	$	7,034,492.40	 	 	$	586,207.70	 
	 	7
	 	$	7,315,872.10	 	 	$	609,656.01	 
	 	8
	 	$	7,608,507.00	 	 	$	634,042.25	 
	 	9
	 	$	7,912,847.30	 	 	$	659,403.94	 
	 	 10
	 	$	8,229,361.20	 	 	$	685,780.10	 








	*	 	Prior to the Additional Premises Commencement Date
	 
	**	 	On and after the Additional Premises Commencement Date



	 	 	 	 	 
	 	 	
4.2 Rent Payment Address:
	 	San Tomas
Properties LLC

P.O. Box 641387

San Jose, CA 95134-1387
	5.	 	
Intentionally Deleted	 	 
	 	 	 	 	
	6.	 	
Tenant’s Share
(Article 4):	 	 



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6.1 Tenant’s Building Share
	 	Prior to the Additional Premises
Commencement Date, 100% for the
2800 Building and 25.88% for the
2860 Building; on and after the
Additional Premises Commencement
Date, 100% for each of the 2800 and
2860 Buildings.
	 	 	 	 	
	 	 	
6.2 Tenant’s Phase Share
	 	Prior to the Additional Premises
Commencement Date, 25.413%; on and
after the Additional Premises
Commencement Date, 40.38%.
	 	 	 	 	
	 	 	
6.3 Tenant’s Project Share
	 	Prior to the Additional Premises
Commencement Date, 12.73%; on and
after the Additional Premises
Commencement Date, 20.224%.
	 	 	 	 	
	7.	 	
Permitted Use

(Article 5):
	 	General office use only.
	 	 	 	 	
	8.	 	
Letter of Credit:	 	 
	 	 	
(Article 21):
	 	$5,781,840.00.
	 	 	 	 	
	9.	 	
Parking Passes
(Article 28):
	 	Prior to the Additional Premises
Commencement Date, one hundred
eighty-eight (188) unreserved
passes; after the Additional
Premises Commencement Date, two
hundred ninety-nine (299)
unreserved passes.
	 	 	 	 	
	10.	 	
Address of Tenant
(Section 29.18):
	 	Akamai
Technologies, Inc.

500 Technology Square

Cambridge, Massachusetts 02139-3539

Attention: Vice President of Real

Estate and Facilities
	 	 	 	 	
	 	 	 	 	With a copy to:
	 	 	 	 	
	 	 	 	 	Hale and Dorr
LLP

60 State Street

Boston, Massachusetts 02109

Attention: Sean T. Boulger, Esq.
	 	 	 	 	
	11.	 	
Address of Landlord:
	 	See Section 29.18 of this Lease.



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	12.	 	
Broker(s)
(Section 29.24):
	 	Colliers
International

1960 The Alameda

Suite 100

San Jose, California 95126
	 	 	 	 	
	 	 	 	 	and
	 	 	 	 	
	 	 	 	 	CRESA
Partners

2483 East Bayshore Road, Suite 102

Palo Alto, California 94303
	 	 	 	 	
	13.	 	
Tenant Improvement Allowance
	 	None.



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ARTICLE 1

PREMISES, BUILDING, PROJECT,

AND COMMON AREAS; ADDITIONAL PREMISES



     1.1 Premises, Building, Project and Common Areas.


           1.1.1 The Premises. Landlord hereby leases to Tenant and Tenant hereby
leases from Landlord the premises set forth in Sections 2.2 and 2.3 of the
Summary (the “Premises”), which premises are referred to individually as the
“Initial Premises” and the “Additional Premises” respectively. The outline of
the Premises is set forth in Exhibit A and Exhibit A-1 attached hereto. The
parties hereto agree that the lease of the Premises is upon and subject to the
terms, covenants and conditions herein set forth, and Tenant covenants as a
material part of the consideration for this Lease to keep and perform each and
all of such terms, covenants and conditions by it to be kept and performed and
that this Lease is made upon the condition of such performance. The parties
hereto hereby acknowledge that the purpose of Exhibits A and A-1 is to show the
approximate location of the Premises in the “Building,” as that term is defined
in Section 1.1.2, below, only, and such Exhibit is not meant to constitute an
agreement, representation or warranty as to the construction of the Premises,
the precise area thereof or the specific location of the
“Common Areas,” as
that term is defined in Section 1.1.3, below, or the elements thereof or of the
accessways to the Premises or the “Project,” as that term is defined in Section
1.1.2, below. Tenant hereby acknowledges that Tenant shall accept the Premises
(including both the Initial Premises and the Additional Premises) in its
existing, “as-is” condition as of the dates of Landlord’s delivery thereof, and
that Landlord shall not be obligated to provide or pay for any improvement work
or services related to the improvement of the Premises; provided that Landlord
shall deliver the Premises in a clean and sanitary condition, with all building
systems operating and in good working order. Tenant acknowledges that neither
Landlord nor any agent of Landlord has made any representation or warranty
regarding the condition of the Premises, the Building or the Project or with
respect to the suitability of any of the foregoing for the conduct of Tenant’s
business, except as specifically set forth in this Lease. The taking of
possession of the Premises by Tenant shall conclusively establish that the
Premises and the Building were at such time in good and sanitary order,
condition and repair.


           1.1.2 The Building and The Project. The Premises are or will be comprised
of the buildings or portions thereof as set forth in Section 2.1 of the Summary
(hereinafter referred to collectively or individually as the
“Building”). The
term “Project,” as used in this Lease, shall mean (i) the Building and the
Common Areas, (ii) the land (which is improved with landscaping, subterranean
parking facilities and other improvements) upon which the Building and the
Common Areas are located, (iii) those certain buildings located at 2600, 2650,
2700, 2730, 2770, 2820, 2840, and 2880 San Tomas Expressway and the land upon
which such adjacent buildings are located, and (iv) at Landlord’s discretion,
any additional real property, areas, land, buildings or other improvements
added thereto outside of the Project.


           1.1.3 Common Areas. Tenant shall have the non-exclusive right to use in
common with other tenants in the Project, and subject to the rules and
regulations referred to in Article 5 of this Lease, those portions of the
Project which are provided, from time to time, for use in common by Landlord,
Tenant and any other tenants of the Project (such areas, together with such
other portions of the Project designated by Landlord, in its discretion,
including certain


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areas designated for the exclusive use of certain tenants, or
to be shared by Landlord and certain tenants, are collectively referred to
herein as the “Common Areas”). The Common Areas
shall consist of the “Project
Common Areas” and the “Building Common Areas.” The term “Project Common Areas,”
as used in this Lease, shall mean the portion of the Project designated as such
by Landlord. The term “Building Common Areas,” as used in this Lease, shall
mean the portions of the Common Areas located within the Building designated as
such by Landlord. The manner in which the Common Areas are maintained and
operated shall be at the sole discretion of Landlord and the use thereof shall
be subject to such rules, regulations and restrictions as Landlord may make
from time to time; provided that Landlord shall maintain and operate the Common
Areas in a manner consistent with that of other first class office buildings in
the vicinity of the Project. Landlord reserves the right to close temporarily,
make alterations or additions to, or change the location of elements of the
Project and the Common Areas.


     1.2 Verification of Rentable Square Feet of Premises. For purposes of
this Lease, “rentable square feet” and “usable square feet” of the Premises
shall be deemed as set forth in Sections 2.2 and 2.3 of the Summary and shall
not be subject to remeasurement or modification.


     1.3 Additional Premises. Effective as of the date of Landlord’s delivery
of the Additional Premises to Tenant (the“Additional Premises Commencement
Date”), which is anticipated to occur as of February 1, 2001, subject to the
terms of Article 2, below, Tenant shall lease from Landlord and Landlord shall
lease to Tenant, in addition to the Initial Premises, the Additional Premises.
Effective upon the Additional Premises Commencement Date and notwithstanding
any contrary provision of this Lease, the Premises shall be increased to
include the Additional Premises. Except as provided in this Section 1.3,
Tenant’s lease of the Additional Premises shall be subject to the terms and
conditions set forth in this Lease. The lease term for the Additional Premises
shall commence, and Tenant shall commence payment of “Rent,” as that term is
defined in Section 4.1, below, for the Additional Premises on the Additional
Premises Commencement Date, and shall terminate on the “Lease Expiration Date,”
as set forth in Section 3.3 of the Summary.


ARTICLE 2



LEASE TERM



     The terms and provisions of this Lease shall be effective as of the date
of this Lease. The term of this Lease (the “Lease Term”) shall be as set forth
in Section 3.1 of the Summary, shall commence on the date set forth in Section
3.2 of the Summary (the “Lease Commencement Date”), provided that the term of
Tenant’s lease of the Additional Premises shall commence as set forth in
Section 1.3, above. Notwithstanding anything in the foregoing to the contrary,
Tenant hereby acknowledges that Landlord shall deliver the Initial Premises and
Additional Premises following the vacation and surrender of the Initial
Premises or the Additional Premises by the respective tenant occupying each of
the Initial Premises and the Additional Premises as of the date hereof (each,
individually, the “Existing Tenant”), and that Landlord shall not be liable to
Tenant as a result of a delay in the delivery to Tenant of the Initial Premises
or Additional Premises due to a holdover in the Initial Premises or the
Additional Premises by the Existing Tenant; provided, however, Landlord shall
use commercially reasonable efforts to remove any Existing Tenant from the
applicable Premises as soon as reasonably practical. Notwithstanding


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of the
foregoing, in the event that Landlord has not delivered the Initial Premises or
has not delivered the Additional Premises within ninety (90) days following the
Lease Commencement Date or the estimated Additional Premises Commencement Date
set forth in Section 1.3, above, as applicable (each of the foregoing
hereinafter referred to as the “Outside Delivery Date”), then Tenant shall have
the right to terminate its lease of such portion of the Premises, but only as
to that portion of the Premises which has not been delivered by the applicable
Outside Delivery Date, by delivering written notice of such termination
(“Tenant’s Termination Notice”) to Landlord within ten (10) days following the
applicable Outside Delivery Date. In the event Tenant timely delivers Tenant’s
Termination Notice, then Tenant’s Lease of the applicable portion of the
Premises shall immediately be of no further force or effect, and Landlord and
Tenant shall promptly execute an amendment to this Lease with respect thereto.
The term of Tenant’s lease of the Initial Premises and the Additional Premises
shall terminate on the date set forth in Section 3.3 of the Summary (the “Lease
Expiration Date”), unless this Lease is sooner terminated as hereinafter
provided. For purposes of this Lease, the term “Lease
Year” shall mean each
consecutive twelve (12) month period during the Lease Term; provided, however,
that the first Lease Year shall commence on the Lease Commencement Date and end
on the last day of the eleventh month thereafter and the second and each
succeeding Lease Year shall commence on the first day of the next calendar
month; and further provided that the last Lease Year shall end on the Lease
Expiration Date. At any time during the Lease Term, Landlord may deliver to
Tenant a notice in the form as set forth in Exhibit C, attached hereto, as a
confirmation only of the information set forth therein, which Tenant shall
execute and return to Landlord within five (5) days of receipt thereof.


ARTICLE 3



BASE RENT



     Tenant shall pay, without prior notice or demand, to Landlord or
Landlord’s agent at the address set forth in Section 4.2 of the Summary, or, at
Landlord’s option, at such other place as Landlord may from time to time
designate in writing, by a check for currency which, at the time of payment, is
legal tender for private or public debts in the United States of America, base
rent (“Base Rent”) as set forth in Section 4 of the Summary, payable in equal
monthly installments as set forth in Section 4 of the Summary in advance on or
before the first day of each and every calendar month during the Lease Term,
without any setoff or deduction whatsoever, except as expressly provided in
this Lease. The Base Rent for the first full month of the Lease Term which
occurs after the expiration of any free rent period shall be paid at the time
of Tenant’s execution of this Lease. If any Rent payment date (including the
Lease Commencement Date and the Additional Premises Commencement Date) falls on
a day of the month other than the first day of such month or if any payment of
Rent is for a period which is shorter than one month, the Rent for any
fractional month shall accrue on a daily basis for the period from the date
such payment is due to the end of such calendar month or to the end of the
Lease Term at a rate per day which is equal to 1/365 of the applicable annual
Rent. All other payments or adjustments required to be made under the terms of
this Lease that require proration on a time basis shall be prorated on the same
basis.


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ARTICLE 4



ADDITIONAL RENT



     4.1 General Terms. In addition to paying the Base Rent specified in
Article 3 of this Lease, Tenant shall pay (i)
“Tenant’s Building Share” of the
annual “Building Direct Expenses,” (ii) “Tenant’s Phase Share” of the annual
“Phase Direct Expenses”, and (iii) “Tenant’s Project Share” of the annual
“Project Direct Expenses” as those terms are defined in Section 4.2, below.
Landlord’s estimate of “Tenant’s Share of Direct Expenses,” as that term is
defined in Section 4.2.1, below, for the first full month of the Lease Term
shall be paid at the time of Tenant’s execution of this Lease. Such payments
by Tenant, together with any and all other amounts payable by Tenant to
Landlord pursuant to the terms of this Lease, are hereinafter collectively
referred to as the “Additional Rent”, and the Base Rent and the Additional Rent
are herein collectively referred to as “Rent.” All amounts due under this
Article 4 as Additional Rent shall be payable for the same periods and in the
same manner as the Base Rent. Without limitation on other obligations of
Tenant which survive the expiration of the Lease Term, the obligations of
Tenant to pay the Additional Rent provided for in this Article 4 shall survive
the expiration of the Lease Term.


     4.2 Definitions of Key Terms Relating to Additional Rent. As used in this
Article 4, the following terms shall have the meanings hereinafter set forth:


           4.2.1 “Tenant’s Share of Direct Expenses” shall mean, collectively,
Tenant’s Project Share of Project Direct Expenses, Tenant’s Phase Share of
Phase Direct Expenses, and Tenant’s Building Share of Building Direct Expenses.


           4.2.2 “Direct Expenses” shall mean “Operating Expenses” and “Tax
Expenses.”


           4.2.3 “Project Direct Expenses” shall mean the portion of “Direct
Expenses,” as equitably determined by Landlord, which is not attributable to
any particular building in the Project, and is not solely attributable to
“Phase 1” or “Phase 2” of the Project, as those terms are defined in Section
4.2.5, below, but which instead relate to the Project as a whole.


           4.2.4 “Building Direct Expenses” shall mean the portion of Direct
Expenses, as equitably determined by Landlord, which is attributable solely to
the 2800 Building or the 2860 Building, as applicable (as opposed to the
Project as a whole or either particular phase of the Project).


           4.2.5 “Phase Direct Expenses” shall mean the portion of Direct Expenses,
as equitably determined by Landlord, which is solely attributable to “Phase 1”
of the Project, as that term is defined, below, and which is neither
attributable solely to the Building nor the Project as a whole. For purposes
of this Lease, (i) “Phase 1” of the Project shall be comprised of the buildings
located at 2800, 2820, 2840, 2860 and 2880 San Tomas Expressway and the
corresponding real property and common areas associated with such phase, as
equitably designated by Landlord, and (ii) “Phase 2” of the Project shall be
comprised of the buildings located at 2600, 2650, 2700, 2730 and 2770 San Tomas
Expressway and the corresponding real property and common areas associated with
such phase, as equitably designated by Landlord.


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           4.2.6 “Expense Year” shall mean each calendar year in which any portion of
the Lease Term falls, through and including the calendar year in which the
Lease Term expires, provided that Landlord, upon notice to Tenant, may change
the Expense Year from time to time to any other twelve (12) consecutive month
period, and, in the event of any such change, Tenant’s Share of Direct Expenses
shall be equitably adjusted for any Expense Year involved in any such change.


           4.2.7 “Operating Expenses” shall mean all expenses, costs and amounts of
every kind and nature which Landlord pays or accrues during any Expense Year
because of or in connection with the ownership, management, maintenance,
security, repair, replacement, restoration or operation of the Project, or any
portion thereof. Without limiting the generality of the foregoing, Operating
Expenses shall specifically include any and all of the following: (i) the cost
of supplying all utilities, the cost of operating, repairing, maintaining, and
renovating the utility, telephone, mechanical, sanitary, storm drainage, and
elevator systems, and the cost of maintenance and service contracts in
connection therewith; (ii) the cost of licenses, certificates, permits and
inspections and the cost of contesting any governmental enactments which may
affect Operating Expenses, and the costs incurred in connection with a
transportation system management program or similar program; (iii) the cost of
all insurance carried by Landlord in connection with the Project; (iv) the cost
of landscaping, relamping, and all supplies, tools, equipment and materials
used in the operation, repair and maintenance of the Project, or any portion
thereof; (v) costs incurred in connection with the parking areas servicing the
Project; (vi) fees and other costs, including Landlord’s management fee (not to
exceed the greater of (A) three percent (3%) of gross rental revenues of the
Project, adjusted and grossed up to reflect a one hundred percent (100%)
occupancy, with all tenants paying rent, including base rent and pass-throughs
(but excluding the cost of after hours services or utilities) from the Project
for any calendar year or portion thereof and (B) the market rate as evidenced
by management fees being charged by landlord’s of comparable buildings in the
Silicon Valley area), consulting fees, legal fees and accounting fees, of all
contractors and consultants in connection with the management, operation,
maintenance and repair of the Project; (vii) payments under any equipment
rental agreements and the fair rental value of any management office space;
(viii) wages, salaries and other compensation and benefits, including taxes
levied thereon, of all persons engaged in the operation, maintenance and
security of the Project; (ix) costs under any instrument pertaining to the
sharing of costs by the Project; (x) operation, repair, maintenance and
replacement of all systems and equipment and components thereof of the
Building; (xi) the cost of janitorial, alarm, security and other services,
replacement of wall and floor coverings, ceiling tiles and fixtures in common
areas (provided that at such time as Tenant occupies only full buildings, such
common areas shall be limited to Project Common Areas), maintenance and
replacement of curbs and walkways, repair to roofs and re-roofing; (xii)
amortization (including interest on the unamortized cost) of the cost of
acquiring or the rental expense of personal property used in the maintenance,
operation and repair of the Project, or any portion thereof; (xiii) the cost of
capital improvements or other costs incurred in connection with the Project;
(A) which are intended to effect economies in the operation or maintenance of
the Project, or any portion thereof, to the extent of cost savings reasonably
anticipated by Landlord at the time of such expenditure to be incurred in
connection therewith, or (B) that are required under any governmental law or
regulation or by a federal, state or local governmental agency, except for
capital repairs, replacements or other improvements to remedy a condition
existing prior to the Lease Commencement Date, which an applicable governmental
authority, if it had knowledge of such


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condition prior to the Lease
Commencement Date, would have then required to be remedied pursuant to then
current governmental laws or regulations in their form existing as of the Lease
Commencement Date, and pursuant to the then current interpretation of such
governmental laws or regulations by the applicable authority as of the Lease
Commencement Date; provided, however, that any capital expenditure shall be
amortized with interest over its useful life as Landlord shall reasonably
determine; (xiv) costs, fees, charges or assessments imposed by, or resulting
from any mandate imposed on Landlord by, any federal, state or local government
for fire and police protection, trash removal, community services, or other
services which do not constitute “Tax Expenses” as that term is defined in
Section 4.2.4.1, below; and (xv) payments under any easement, license,
operating agreement, declaration, restrictive covenant, or instrument
pertaining to the sharing of costs by the Building.


     Notwithstanding the foregoing, Operating Expenses for purposes of this
Lease shall not include (A) except as set forth in items (xii) and (xiii)
above, depreciation, interest and principal payments on mortgages and other
debt costs, if any, penalties and interest, costs of capital repairs and
alterations, and costs of capital improvements and equipment; (B) amounts paid
as ground rental for the Project by the Landlord; (C) any costs included as a
Tax Expense pursuant to Section 4.2.8.1 below; (D) costs of leasing
commissions, attorneys’ fees and other costs and expenses incurred in
connection with negotiations or disputes with present or prospective tenants or
other occupants of the Project; (E) costs, including marketing costs, legal
fees, space planners’ fees, advertising and promotional expenses, and brokerage
fees incurred in connection with the original construction or development, or
original or future leasing of the Project, and costs, including permit, license
and inspection costs, incurred with respect to the installation of tenant
improvements made for new tenants in the Project or incurred in renovating or
otherwise improving, decorating, painting or redecorating vacant space for
tenants or other occupants of the Project; (F) the wages and benefits of any
employee who does not devote substantially all of his or her employed time to
the Project unless such wages and benefits are prorated to reflect time spent
on operating and managing the Project vis-à-vis time spent on matters unrelated
to operating and managing the Project; provided, that in no event shall
Operating Expenses for purposes of this Lease include wages and/or benefits
attributable to personnel above the level of Project manager or Project
engineer; (G) costs incurred due to the violation by Landlord or any other
tenant of the terms and conditions of any lease of space in the Project; (H)
costs of overhead or profit increment paid to Landlord or to subsidiaries or
affiliates of Landlord for services in or in connection with the Project to the
extent the same exceeds the cost of such services which could be obtained from
third parties on a competitive basis; (I) costs arising from Landlord’s
charitable or political contributions; (J) costs incurred to comply with laws
relating to hazardous material (as defined by applicable law), which was in
existence in the Building or the Project prior to the Lease Commencement Date,
and was of such a nature that a federal, State or municipal governmental
authority, if it had then had knowledge of the presence of such hazardous
material, in the state, and under the conditions that it then existed in the
Building or the Project, would have then required the removal of such hazardous
material or other remedial or containment action with respect thereto; and
costs incurred to remove, remedy, contain, or treat hazardous material, which
hazardous material is brought into the Building or the Project after the date
hereof by Landlord or any other tenant of the Project and is of such a nature,
at that time, that a federal, State or municipal governmental authority, if it
had then had knowledge of the presence of such hazardous material, in the
state, and under the conditions, that it then existed in the Building or the
Project, would have then required the removal of such hazardous


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material or
other remedial or containment action with respect thereto; (K) all items and
services for which Tenant or any other tenant in the Project reimburses
Landlord or which Landlord provides selectively to one or more tenants (other
than Tenant) without reimbursement; (L) costs of services or other benefits
which are either not offered to Tenant or for which Tenant is charged directly,
but which are provided to other tenants of the Building without a separate
charge; (M) entertainment and travel expenses of Landlord, its employees,
agents, partners and affiliates; (N) costs for which the Landlord is reimbursed
by any tenant or occupant of the Project or by insurance by its carrier or any
tenant’s carrier or by anyone else, and electric power costs for which any
tenant directly contracts with the local public service company; (O) costs
incurred in connection with any disputes between Landlord and its employees,
between Landlord and Project management, or between Landlord and other tenants
or occupants, and Landlord’s general corporate overhead and general and
administrative expenses; and (P) cost of tenants’ signs.


     If Landlord is not furnishing any particular work or service (the cost of
which, if performed by Landlord, would be included in Operating Expenses) to a
tenant who has undertaken to perform such work or service in lieu of the
performance thereof by Landlord, Operating Expenses shall be deemed to be
increased by an amount equal to the additional Operating Expenses which would
reasonably have been incurred during such period by Landlord if it had at its
own expense furnished such work or service to such tenant (solely with respect
to the determination of the Building Direct Expenses for a particular building
in which the Premises are located, this provision shall apply only as long as
Tenant is occupying a portion of such building as opposed to the whole
building). If the Project is not at least ninety-five percent (95%) occupied
during all or a portion of any Expense Year, Landlord may elect to make an
appropriate adjustment to the components of Operating Expenses for such year to
determine the amount of Operating Expenses that would have been incurred had
the Project been ninety-five percent (95%) occupied; and the amount so
determined shall be deemed to have been the amount of Operating Expenses for
such year.


           4.2.8 Taxes.


                 4.2.8.1 “Tax Expenses” shall mean all federal, state, county, or local
governmental or municipal taxes, fees, charges or other impositions of every
kind and nature, whether general, special, ordinary or extraordinary,
(including, without limitation, real estate taxes, general and special
assessments, transit taxes, leasehold taxes or taxes based upon the receipt of
rent, including gross receipts or sales taxes applicable to the receipt of
rent, unless required to be paid by Tenant, personal property taxes imposed
upon the fixtures, machinery, equipment, apparatus, systems and equipment,
appurtenances, furniture and other personal property used in connection with
the Project, or any portion thereof), which shall be paid or accrued during any
Expense Year (without regard to any different fiscal year used by such
governmental or municipal authority) because of or in connection with the
ownership, leasing and operation of the Project, or any portion thereof.


                 4.2.8.2 Tax Expenses shall include, without limitation: (i) Any tax on the
rent, right to rent or other income from the Project, or any portion thereof,
or as against the business of leasing the Project, or any portion thereof; (ii)
Any assessment, tax, fee, levy or charge in addition to, or in substitution,
partially or totally, of any assessment, tax, fee, levy or


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charge previously
included within the definition of real property tax, it being acknowledged by
Tenant and Landlord that Proposition 13 was adopted by the voters of the State
of California in the June 1978 election (“Proposition 13”) and that
assessments, taxes, fees, levies and charges may be imposed by governmental
agencies for such services as fire protection, street, sidewalk and road
maintenance, refuse removal and for other governmental services formerly
provided without charge to property owners or occupants, and, in further
recognition of the decrease in the level and quality of governmental services
and amenities as a result of Proposition 13, Tax Expenses shall also include
any governmental or private assessments or the Project’s contribution towards a
governmental or private cost-sharing agreement for the purpose of augmenting or
improving the quality of services and amenities normally provided by
governmental agencies; (iii) Any assessment, tax, fee, levy, or charge
allocable to or measured by the area of the Premises or the Rent payable
hereunder, including, without limitation, any business or gross income tax or
excise tax with respect to the receipt of such rent, or upon or with respect to
the possession, leasing, operating, management, maintenance, alteration,
repair, use or occupancy by Tenant of the Premises, or any portion thereof; and
(iv) Any assessment, tax, fee, levy or charge, upon this transaction or any
document to which Tenant is a party, creating or transferring an interest or an
estate in the Premises.


                 4.2.8.3 Any costs and expenses (including, without limitation, reasonable
attorneys’ fees) incurred in attempting to protest, reduce or minimize Tax
Expenses shall be included in Tax Expenses in the Expense Year such expenses
are paid. Refunds of Tax Expenses shall be credited against Tax Expenses and
refunded to Tenant regardless of when received, based on the Expense Year to
which the refund is applicable, provided that in no event shall the amount to
be refunded to Tenant for any such Expense Year exceed the total amount paid by
Tenant as Additional Rent under this Article 4 for such Expense Year. If Tax
Expenses for any period during the Lease Term or any extension thereof are
increased after payment thereof for any reason, including, without limitation,
error or reassessment by applicable governmental or municipal authorities,
Tenant shall pay Landlord upon demand Tenant’s Share of any such increased Tax
Expenses included by Landlord as Tax Expenses pursuant to the terms of this
Lease. Notwithstanding anything to the contrary contained in this Section
4.2.8 (except as set forth in Section 4.2.8.1, above), there shall be excluded
from Tax Expenses (i) all excess profits taxes, franchise taxes, gift taxes,
capital stock taxes, inheritance and succession taxes, estate taxes, federal
and state income taxes, and other taxes to the extent applicable to Landlord’s
general or net income (as opposed to rents, receipts or income attributable to
operations at the Project), (ii) any items included as Operating Expenses, and
(iii) any items paid by Tenant under Section 4.4 of this Lease.


           4.2.9
“Tenant’s Building Share” shall mean the applicable percentage set
forth in Section 6.1 of the Summary.


           4.2.10
“Tenant’s Phase Share” shall mean the applicable percentage set
forth in Section 6.2 of the Summary.


           4.2.11
“Tenant’s Project Share” shall mean the applicable percentage set
forth in Section 6.3 of the Summary.


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     4.3 Allocation of Direct Expenses.


           4.3.1 Method of Allocation. The parties acknowledge that the Buildings
are a part of a multi-building project and that the costs and expenses incurred
in connection with the Project (i.e. the Direct Expenses) should be shared
between the Tenant with respect to the Buildings and the tenants of the other
buildings in the Project. Accordingly, as set forth in Section 4.2 above,
Direct Expenses (which consists of Operating Expenses and Tax Expenses) are
determined annually for the Project as a whole, and a portion of the Direct
Expenses, which portion shall be determined by Landlord on an equitable basis,
shall be allocated to Tenant with respect to the Buildings (as opposed to the
tenants of any other buildings in the Project) and such portion shall be the
Direct Expenses for purposes of this Lease. Such portion of Direct Expenses
allocated to the Buildings shall include all Direct Expenses attributable
solely to the Buildings and an equitable portion of the Direct Expenses
attributable to the Project as a whole, and not solely to any other buildings
within the Project.


     4.4 Calculation and Payment of Additional Rent. For each Expense Year
during the Lease Term, Tenant shall pay to Landlord, in the manner set forth in
Section 4.4.1, below, and as Additional Rent, an amount equal to Tenant’s Share
of Direct Expenses.


           4.4.1 Statement of Actual Direct Expenses and Payment by Tenant. Landlord
shall endeavor to give to Tenant following the end of each Expense Year, a
statement (the “Statement”) which shall state the Direct Expenses incurred or
accrued for such preceding Expense Year. Upon receipt of the Statement for
each Expense Year commencing or ending during the Lease Term, Tenant shall pay,
with its next installment of Base Rent due, the full amount of Tenant’s Share
of the Direct Expenses for such Expense Year, less the amounts, if any, paid
during such Expense Year as “Estimated Expenses,” as that term is defined in
Section 4.4.2, below. The failure of Landlord to timely furnish the Statement
for any Expense Year shall not prejudice Landlord or Tenant from enforcing its
rights under this Article 4. Even though the Lease Term has expired and Tenant
has vacated the Premises, when the final determination is made of Tenant’s
Share of Direct Expenses for the Expense Year in which this Lease terminates,
Tenant shall immediately pay to Landlord such amount. The provisions of this
Section 4.4.1 shall survive the expiration or earlier termination of the Lease
Term.


           4.4.2 Statement of Estimated Direct Expenses. In addition, Landlord shall
endeavor to give Tenant a yearly expense estimate statement (the “Estimate
Statement”) which shall set forth Landlord’s reasonable estimate (the
“Estimate”) of what the total amount of Direct Expenses for the then-current
Expense Year shall be and the estimated Tenant’s Share of Direct Expenses (the
“Estimated Expenses”). The failure of Landlord to
timely furnish the Estimate Statement for any Expense Year shall not preclude Landlord from enforcing its
rights to collect any Estimated Expenses under this Article 4, nor shall
Landlord be prohibited from revising any Estimate Statement or Estimated
Expenses theretofore delivered to the extent necessary. Thereafter, Tenant
shall pay, with its next installment of Base Rent due, a fraction of the
Estimated Expenses for the then-current Expense Year (reduced by any amounts
paid pursuant to the next to last sentence of this Section 4.4.2). Such
fraction shall have as its numerator the number of months which have elapsed in
such current Expense Year, including the month of such payment, and twelve (12)
as its denominator. Until a new Estimate Statement is furnished (which
Landlord shall have the right to deliver to Tenant at any time), Tenant shall
pay monthly,


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with the monthly Base Rent installments, an amount equal to
one-twelfth (1/12) of the total Estimated Expenses set forth in the previous
Estimate Statement delivered by Landlord to Tenant.


     4.5 Taxes and Other Charges for Which Tenant Is Directly Responsible.


           4.5.1 Tenant shall be liable for and shall pay ten (10) days before
delinquency, taxes levied against Tenant’s equipment, furniture, fixtures and
any other personal property located in or about the Premises. If any such
taxes on Tenant’s equipment, furniture, fixtures and any other personal
property are levied against Landlord or Landlord’s property or if the assessed
value of Landlord’s property is increased by the inclusion therein of a value
placed upon such equipment, furniture, fixtures or any other personal property
and if Landlord pays the taxes based upon such increased assessment, which
Landlord shall have the right to do regardless of the validity thereof but only
under proper protest if requested by Tenant, Tenant shall upon demand repay to
Landlord the taxes so levied against Landlord or the proportion of such taxes
resulting from such increase in the assessment, as the case may be.


           4.5.2 If the tenant improvements in the Premises, whether installed and/or
paid for by Landlord or Tenant and whether or not affixed to the real property
so as to become a part thereof, are assessed for real property tax purposes at
a valuation higher than the valuation at which tenant improvements conforming
to Landlord’s “building standard” in other space in the Building are assessed,
then the Tax Expenses levied against Landlord or the property by reason of such
excess assessed valuation shall be deemed to be taxes levied against personal
property of Tenant and shall be governed by the provisions of Section 4.5.1,
above.


           4.5.3 Notwithstanding any contrary provision herein, Tenant shall pay
prior to delinquency any (i) rent tax or sales tax, service tax, transfer tax
or value added tax, or any other applicable tax on the rent or services herein
or otherwise respecting this Lease, (ii) taxes assessed upon or with respect to
the possession, leasing, operation, management, maintenance, alteration,
repair, use or occupancy by Tenant of the Premises or any portion of the
Project, including the Project parking facility; or (iii) taxes assessed upon
this transaction or any document to which Tenant is a party creating or
transferring an interest or an estate in the Premises.


     4.6 Landlord’s Books and Records. Within ninety (90) days after receipt
of a Statement by Tenant, if Tenant disputes the amount of Additional Rent set
forth in the Statement, an independent certified public accountant (which
accountant is a member of a nationally recognized accounting firm, and has had
previous experience in reviewing financial operating records of landlords of
office buildings, and is not compensated on a contingent fee basis), designated
and paid for by Tenant, may, after reasonable notice to Landlord and at
reasonable times, inspect Landlord’s records with respect to the Statement at
Landlord’s offices, provided that Tenant is not then in default under this
Lease beyond any applicable notice and cure period set forth in this Lease, and
Tenant has paid all amounts required to be paid under the applicable Estimate
Statement and Statement, as the case may be. In connection with such
inspection, Tenant and Tenant’s agents must agree in advance to follow
Landlord’s reasonable rules and procedures regarding inspections of Landlord’s
records, and shall execute a commercially reasonable confidentiality agreement
regarding such inspection. Tenant’s failure to dispute the amount of
Additional Rent set forth in any Statement within ninety (90) days of Tenant’s
receipt


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of such Statement shall be deemed to be Tenant’s approval of such
Statement and Tenant, thereafter, waives the right or ability to dispute the
amounts set forth in such Statement. If, after such inspection, Tenant still
disputes such Additional Rent, a final determination (the “Final Inspection
Determination”) as to the proper amount shall be made, at Tenant’s expense, by
an independent certified public accountant (the “Accountant”) selected by
Landlord and subject to Tenant’s reasonable approval. Tenant shall be
responsible for all costs and expenses associated with Tenant’s review,
provided that if such determination by the Accountant proves that Direct
Expenses were overstated by more than seven percent (7%), then the cost of the
Accountant and the cost of the determination by the Accountant shall be paid
for by Landlord. Tenant hereby acknowledges that Tenant’s sole right to
inspect Landlord’s books and records and to contest the amount of Direct
Expenses payable by Tenant shall be as set forth in this Section 4.6, and
Tenant hereby waives any and all other rights pursuant to applicable law to
inspect such books and records and/or to contest the amount of Direct Expenses
payable by Tenant. In no event shall this Section 4.6 be deemed to allow any
review of any of Landlord’s records by any subtenant of Tenant.


ARTICLE 5



USE OF PREMISES



     5.1 Permitted Use. Tenant shall use the Premises solely for the Permitted
Use set forth in Section 7 of the Summary and Tenant shall not use or permit
the Premises or the Project to be used for any other purpose or purposes
whatsoever without the prior written consent of Landlord, which may be withheld
in Landlord’s sole discretion.


     5.2 Prohibited Uses. The uses prohibited under this Lease shall include,
without limitation, use of the Premises or a portion thereof for (i) offices of
any agency or bureau of the United States or any state or political subdivision
thereof; (ii) offices or agencies of any foreign governmental or political
subdivision thereof; (iii) offices of any health care professionals or service
organization; (iv) schools or other training facilities which are not ancillary
to corporate, executive or professional office use; (v) retail or restaurant
uses; or (vi) communications firms such as radio and/or television stations.
Tenant shall not allow occupancy density of use of the Premises which is
greater than that permitted pursuant to applicable law. Tenant further
covenants and agrees that Tenant shall not use, or suffer or permit any person
or persons to use, the Premises or any part thereof for any use or purpose
contrary to the provisions of the Rules and Regulations set forth in Exhibit D,
attached hereto, or in violation of the laws of the United States of America,
the State of California, or the ordinances, regulations or requirements of the
local municipal or county governing body or other lawful authorities having
jurisdiction over the Project) including, without limitation, any such laws,
ordinances, regulations or requirements relating to hazardous materials or
substances, as those terms are defined by applicable laws now or hereafter in
effect. Tenant shall not do or permit anything to be done in or about the
Premises which will in any way damage the reputation of the Project or obstruct
or interfere with the rights of other tenants or occupants of the Building, or
injure or annoy them or use or allow the Premises to be used for any improper,
unlawful or objectionable purpose, nor shall Tenant cause, maintain or permit
any nuisance in, on or about the Premises. Tenant shall comply with all
recorded covenants, conditions, and restrictions now or hereafter affecting the
Project.


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ARTICLE 6



SERVICES AND UTILITIES



     6.1 In General. Tenant will be responsible, at its sole cost and expense,
for the furnishing of all services and utilities to the Premises, including,
but not limited to heating, ventilation and air-conditioning, electricity,
water, telephone, janitorial and security services. The Premises shall be
separately metered, at Tenant’s expense, for electricity and water and other
utilities, and Tenant shall pay the cost of such utilities directly to the
applicable utility provider.


     6.2 Interruption of Use. Tenant agrees that Landlord shall not be liable
for damages, by abatement of rent or otherwise, for failure to furnish or delay
in furnishing any service (including telephone and telecommunication services),
or for any diminution in the quality or quantity thereof, when such failure or
delay or diminution is occasioned, in whole or in part, by repairs,
replacements, or improvements, by any strike, lockout or other labor trouble,
by, inability to secure electricity, gas, water, or other fuel at the Building
after reasonable effort to do so, by any accident or casualty whatsoever, by
act or default of Tenant or other parties, or by any other cause; and such
failures or delays or diminution shall never be deemed to constitute an
eviction or disturbance of Tenant’s use and possession of the Premises or
relieve Tenant from paying rent or performing any of its obligations under this
Lease. Furthermore, Landlord shall not be liable under any circumstances for a
loss of, or injury to, property or for injury to, or interference with,
Tenant’s business, including, without limitation, loss of profits, however
occurring, through or in connection with or incidental to a failure to furnish
any services or utilities.


     6.3 No Obligation. Provided that Landlord agrees to provide service
utility connections to the Project, including electricity, water and sewage
connections, Landlord shall have no obligation to provide any services or
utilities to the Building, including, but not limited to heating, ventilation
and air-conditioning, electricity, water, telephone, janitorial and Building
security services.


ARTICLE 7



REPAIRS



     Tenant shall, at Tenant’s own expense, pursuant to the terms of this
Lease, including without limitation Article 8 hereof, keep, maintain, repair
and improve the Premises, and every portion thereof, including, without
limitation, all improvements, fixtures and furnishings therein and all
equipment within the Premises or serving the Premises, and the floor or floors
of the Building on which the Premises are located, in good order, repair and
condition at all times during the Lease Term. In addition, Tenant shall, at
Tenant’s own expense, but under the supervision and subject to the prior
approval of Landlord, and within any reasonable period of time specified by
Landlord, pursuant to the terms of this Lease, including without limitation
Article 8 hereof, promptly and adequately repair all damage to the Premises and
replace or repair all damaged, broken, or worn fixtures and appurtenances,
except for damage caused by ordinary wear and tear or beyond the reasonable
control of Tenant; provided however, that, at Landlord’s option, or if Tenant
fails to make such repairs, Landlord may, but need not, make such repairs


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and
replacements, and Tenant shall pay Landlord the cost thereof, including a
percentage of the cost thereof (to be uniformly established for the Building
and/or the Project) sufficient to reimburse Landlord for all overhead, general
conditions, fees and other costs or expenses arising from Landlord’s
involvement with such repairs and replacements forthwith upon being billed for
same. Landlord may, but shall not be required to, enter the Premises at all
reasonable times to make such repairs, alterations, improvements or additions
to the Premises or to the Project or to any equipment located in the Project as
Landlord shall desire or deem necessary or as Landlord may be required to do by
governmental or quasi-governmental authority or court order or decree. Tenant
hereby waives any and all rights under and benefits of subsection 1 of Section
1932 and Sections 1941 and 1942 of the California Civil Code or under any
similar law, statute, or ordinance now or hereafter in effect.


ARTICLE 8



ADDITIONS AND ALTERATIONS



     8.1 Landlord’s Consent to Alterations. Tenant may not make any
improvements, alterations, additions or changes to the Premises or any
mechanical, plumbing or HVAC facilities or systems pertaining to the Premises
(collectively, the “Alterations”) without first procuring the prior written
consent of Landlord to such Alterations, which consent shall be requested by
Tenant not less than thirty (30) days prior to the commencement thereof, and
which consent shall not be unreasonably withheld by Landlord, provided it shall
be deemed reasonable for Landlord to withhold its consent to any Alteration
which adversely affects the structural portions or the systems or equipment of
the Building or is visible from the exterior of the Building. Notwithstanding
anything in this Article 8 to the contrary, Tenant shall have the right,
without Landlord’s consent but upon five (5) business days prior written notice
to Landlord, to make strictly cosmetic, non-structural additions and
alterations to the Premises that do not (i) involve the expenditure of more
than $50,000.00 in any Lease Year, (ii) affect the exterior appearance of the
Building, or (iii) affect the Building’s electrical, ventilation, plumbing,
elevator, mechanical, air conditioning or other similar systems. The
construction of the initial improvements to the Premises shall be governed by
the terms of this Article 8.


     8.2 Manner of Construction. Landlord may impose, as a condition of its
consent to any and all Alterations or repairs of the Premises or about the
Premises, such requirements as Landlord in its sole discretion may deem
desirable, including, but not limited to, the requirement that Tenant utilize
for such purposes only contractors, subcontractors, materials, mechanics and
materialmen selected by Tenant from a list provided and approved by Landlord,
the requirement that upon Landlord’s request, made at the time Landlord’s
consent to an Alteration is granted if Tenant’s request for approval thereof
requests a designation of whether or not Tenant shall be required to remove a
particular Alteration upon the expiration or earlier termination of this Lease
(a “Removal Designation Request”), Tenant shall, at Tenant’s expense, remove
such Alterations upon the expiration or any early termination of the Lease
Term, and the requirement that all Alterations conform in terms of quality and
style to the Building’s standards established by Landlord for the Project. If
Tenant delivers a Removal Designation Request and Landlord shall not indicate
in its approval that the applicable Alteration will be required to be removed
by Tenant upon the expiration or any early termination of the Lease Term, then
the applicable Alteration will not be required to be removed by Tenant. If
such Alterations will involve the use


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of or disturb hazardous materials or
substances existing in the Premises, Tenant shall comply with Landlord’s rules
and regulations concerning such hazardous materials or substances. Tenant
shall construct such Alterations and perform such repairs in a good and
workmanlike manner, in conformance with any and all applicable federal, state,
county or municipal laws, rules and regulations and pursuant to a valid
building permit, issued by the City of Santa Clara, all in conformance with
Landlord’s construction rules and regulations. In the event Tenant performs
any Alterations in the Premises which require or give rise to governmentally
required changes to the “Base Building,” as that term is defined below, then
Landlord shall, at Tenant’s expense, make such changes to the Base Building.
The “Base Building” shall include the structural portions of the Building, and
the public restrooms and the systems and equipment located in the internal core
of the Building on the floor or floors on which the Premises are located. In
performing the work of any such Alterations, Tenant shall have the work
performed in such manner so as not to obstruct access to the Project or any
portion thereof, by any other tenant of the Project, and so as not to obstruct
the business of Landlord or other tenants in the Project. Tenant shall not use
(and upon notice from Landlord shall cease using) contractors, services,
workmen, labor, materials or equipment that, in Landlord’s reasonable judgment,
would disturb labor harmony with the workforce or trades engaged in performing
other work, labor or services in or about the Building or the Common Areas. In
addition to Tenant’s obligations under Article 9 of this Lease, upon completion
of any Alterations, Tenant agrees to cause a Notice of Completion to be
recorded in the office of the Recorder of the County of Santa Clara in
accordance with Section 3093 of the Civil Code of the State of California or
any successor statute, and Tenant shall deliver to the Project management
office a reproducible copy of the “as built” drawings of the Alterations as
well as all permits, approvals and other documents issued by any governmental
agency in connection with the Alterations.


     8.3 Payment for Improvements. If payment is made directly to contractors,
Tenant shall comply with Landlord’s requirements for final lien releases and
waivers in connection with Tenant’s payment for work to contractors. Whether
or not Tenant orders any work directly from Landlord, Tenant shall pay to
Landlord a percentage of the cost of such work sufficient to compensate
Landlord for all overhead, general conditions, fees and other costs and
expenses arising from Landlord’s involvement with such work.


     8.4 Construction Insurance. In addition to the requirements of Article 10
of this Lease, in the event that Tenant makes any Alterations, prior to the
commencement of such Alterations, Tenant shall provide Landlord with evidence
that Tenant carries “Builder’s All Risk” insurance in an amount approved by
Landlord covering the construction of such Alterations, and such other
insurance as Landlord may require, it being understood and agreed that all of
such Alterations shall be insured by Tenant pursuant to Article 10 of this
Lease immediately upon completion thereof. In addition, Landlord may, in its
discretion, require Tenant to obtain a lien and completion bond or some
alternate form of security satisfactory to Landlord in an amount sufficient to
ensure the lien-free completion of such Alterations and naming Landlord as a
co-obligee.


     8.5 Landlord’s Property. All Alterations, improvements, fixtures,
equipment and/or appurtenances which may be installed or placed in or about the
Premises, from time to time, shall be at the sole cost of Tenant and shall be
and become the property of Landlord, except that Tenant may remove any
Alterations, improvements, fixtures and/or equipment which Tenant can


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substantiate to Landlord have not been paid for with any Tenant improvement
allowance funds provided to Tenant by Landlord, provided Tenant repairs any
damage to the Premises and Building caused by such removal and returns the
affected portion of the Premises to a building standard tenant improved
condition as determined by Landlord. Furthermore, Landlord may, by written
notice to Tenant prior to the end of the Lease Term, or given following any
earlier termination of this Lease, require Tenant, at Tenant’s expense, to
remove any Alterations or improvements constructed by or on behalf of Tenant in
the Premises, and to repair any damage to the Premises and Building caused by
such removal and to return the affected portion of the Premises to a building
standard tenant improved condition as determined by Landlord, provided that, as
set forth in Section 8.2, above, Tenant shall have the right to require a
designation of any such removal obligation at the time of Landlord’s consent to
a particular tenant improvement or Alteration. If Tenant fails to complete
such removal and/or to repair any damage caused by the removal of any
Alterations or improvements in the Premises, and returns the affected portion
of the Premises to a building standard tenant improved condition as determined
by Landlord, then at Landlord’s option, either (A) Tenant shall be deemed to be
holding over in the Premises and Rent shall continue to accrue in accordance
with the terms of Article 16, below, until such work shall be completed, or (B)
Landlord may do so and may charge the cost thereof to Tenant. Tenant hereby
protects, defends, indemnifies and holds Landlord harmless from any liability,
cost, obligation, expense or claim of lien in any manner relating to the
installation, placement, removal or financing of any such Alterations,
improvements, fixtures and/or equipment in, on or about the Premises, which
obligations of Tenant shall survive the expiration or earlier termination of
this Lease.


ARTICLE 9



COVENANT AGAINST LIENS



     Tenant shall keep the Project and Premises free from any liens or
encumbrances arising out of the work performed, materials furnished or
obligations incurred by or on behalf of Tenant, and shall protect, defend,
indemnify and hold Landlord harmless from and against any claims, liabilities,
judgments or costs (including, without limitation, reasonable attorneys’ fees
and costs) arising out of same or in connection therewith. Tenant shall give
Landlord notice at least twenty (20) days prior to the commencement of any such
work on the Premises (or such additional time as may be necessary under
applicable laws) to afford Landlord the opportunity of posting and recording
appropriate notices of non-responsibility. Tenant shall remove any such lien
or encumbrance by bond or otherwise within five (5) days after notice by
Landlord, and if Tenant shall fail to do so, Landlord may pay the amount
necessary to remove such lien or encumbrance, without being responsible for
investigating the validity thereof. The amount so paid shall be deemed
Additional Rent under this Lease payable upon demand, without limitation as to
other remedies available to Landlord under this Lease. Nothing contained in
this Lease shall authorize Tenant to do any act which shall subject Landlord’s
title to the Building or Premises to any liens or encumbrances whether claimed
by operation of law or express or implied contract. Any claim to a lien or
encumbrance upon the Building or Premises arising in connection with any such
work or respecting the Premises not performed by or at the request of Landlord
shall be null and void, or at Landlord’s option shall attach only against
Tenant’s interest in the Premises and shall in all respects be subordinate to
Landlord’s title to the Project, Building and Premises.


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ARTICLE 10



INSURANCE



     10.1 Indemnification and Waiver. Tenant hereby assumes all risk of damage
to property or injury to persons in, upon or about the Premises from any cause
whatsoever and agrees that Landlord, its partners, subpartners and their
respective officers, agents, servants, employees, and independent contractors
(collectively, “Landlord Parties”) shall not be liable for, and are hereby
released from any responsibility for, any damage either to person or property
or resulting from the loss of use thereof, which damage is sustained by Tenant
or by other persons claiming through Tenant. Tenant shall indemnify, defend,
protect, and hold harmless the Landlord Parties from any and all loss, cost,
damage, expense and liability (including without limitation court costs and
reasonable attorneys’ fees) incurred in connection with or arising from any
cause in, on or about the Premises, any violation of any of the requirements,
ordinances, statutes, regulations or other laws, including, without limitation,
any environmental laws; any acts, omissions or negligence of Tenant or of any
person claiming by, through or under Tenant, or of the contractors, agents,
servants, employees, invitees, guests or licensees of Tenant or any such
person, in, on or about the Project or any breach of the terms of this Lease,
either prior to, during, or after the expiration of the Lease Term, provided
that the terms of the foregoing indemnity shall not apply to the gross
negligence or willful misconduct of Landlord. Should Landlord be named as a
defendant in any suit brought against Tenant in connection with or arising out
of Tenant’s occupancy of the Premises, Tenant shall pay to Landlord its costs
and expenses incurred in such suit, including without limitation, its actual
professional fees such as appraisers’, accountants’ and attorneys’ fees.
Further, Tenant’s agreement to indemnify Landlord pursuant to this Section 10.1
is not intended and shall not relieve any insurance carrier of its obligations
under policies required to be carried by Tenant pursuant to the provisions of
this Lease, to the extent such policies cover the matters subject to Tenant’s
indemnification obligations; nor shall they supersede any inconsistent
agreement of the parties set forth in any other provision of this Lease. The
provisions of this Section 10.1 shall survive the expiration or sooner
termination of this Lease with respect to any claims or liability arising in
connection with any event occurring prior to such expiration or termination.


     10.2 Landlord’s Fire and Casualty Insurance. Landlord shall carry
commercial general liability insurance with respect to the Building during the
Lease Term, and shall further insure the Building during the Lease Term against
loss or damage due to fire and other casualties covered within the
classification of fire and extended coverage, vandalism coverage and malicious
mischief, sprinkler leakage, water damage and special extended coverage. Such
coverage shall be in such amounts, from such companies, and on such other terms
and conditions, as Landlord may from time to time reasonably determine.
Additionally, at the option of Landlord, such insurance coverage may include
the risks of earthquakes and/or flood damage and additional hazards, a rental
loss endorsement and one or more loss payee endorsements in favor of the
holders of any mortgages or deeds of trust encumbering the interest of Landlord
in the Building or the ground or underlying lessors of the Building, or any
portion thereof. Notwithstanding the foregoing provisions of this Section
10.2, the coverage and amounts of insurance carried by Landlord in connection
with the Building shall, at a minimum, be comparable to the coverage and
amounts of insurance which are carried by reasonably prudent landlords of
comparable buildings in the vicinity of the Building (provided that in no event
shall


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Landlord be required to carry earthquake insurance), and Worker’s
Compensation and Employer’s Liability coverage as required by applicable law.
Tenant shall, at Tenant’s expense, comply with all insurance company
requirements pertaining to the use of the Premises. If Tenant’s conduct or use
of the Premises causes any increase in the premium for such insurance policies
then Tenant shall reimburse Landlord for any such increase. Tenant, at
Tenant’s expense, shall comply with all rules, orders, regulations or
requirements of the American Insurance Association (formerly the National Board
of Fire Underwriters) and with any similar body.


     10.3 Tenant’s Insurance. Tenant shall maintain the following coverages in
the following amounts.


     10.3.1 Commercial General Liability Insurance covering the insured against
claims of bodily injury, personal injury and property damage (including loss of
use thereof) arising out of Tenant’s operations, and contractual liabilities
(covering the performance by Tenant of its indemnity agreements) including a
Broad Form endorsement covering the insuring provisions of this Lease and the
performance by Tenant of the indemnity agreements set forth in Section 10.1 of
this Lease, for limits of liability not less than:



	 	 	 
	Bodily Injury and

Property Damage Liability	 	
$5,000,000 each occurrence

$5,000,000 annual aggregate
	Personal Injury Liability	 	
$5,000,000 each occurrence
$5,000,000 annual aggregate

0% Insured’s participation



     10.3.2 Physical Damage Insurance covering (i) all office furniture,
business and trade fixtures, office equipment, free-standing cabinet work,
movable partitions, merchandise and all other items of Tenant’s property on the
Premises installed by, for, or at the expense of Tenant, and (ii) any existing
or subsequently installed improvements in the Premises, including any future
alterations and additions to the Premises (collectively, the “Tenant
Improvements”). Such insurance shall be written on an “all risks” of physical
loss or damage basis, for the full replacement cost value (subject to
reasonable deductible amounts) new without deduction for depreciation of the
covered items and in amounts that meet any co-insurance clauses of the policies
of insurance and shall include coverage for damage or other loss caused by fire
or other peril including, but not limited to, vandalism and malicious mischief,
theft, water damage of any type, including sprinkler leakage, bursting or
stoppage of pipes, and explosion, and providing business interruption coverage
for a period of one year.


     10.3.3 Worker’s Compensation and Employer’s Liability or other similar
insurance pursuant to all applicable state and local statutes and regulations.


     10.4 Form of Policies. The minimum limits of policies of insurance
required of Tenant under this Lease shall in no event limit the liability of
Tenant under this Lease. Such insurance shall (i) name Landlord, Landlord’s
lender, and any other party the Landlord so specifies, as an additional
insured, including Landlord’s managing agent, if any; (ii) specifically cover
the liability assumed by Tenant under this Lease, including, but not limited
to, Tenant’s


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obligations under Section 10.1 of this Lease; (iii) be issued by
an insurance company having a rating of not less than A-X in Best’s Insurance
Guide or which is otherwise acceptable to Landlord and licensed to do business
in the State of California; (iv) be primary insurance as to all claims
thereunder and provide that any insurance carried by Landlord is excess and is
noncontributing with any insurance requirement of Tenant; (v) be in form and
content reasonably acceptable to Landlord; and (vi) provide that said insurance
shall not be canceled or coverage changed unless thirty (30) days’ prior
written notice shall have been given to Landlord and any mortgagee of Landlord.
Tenant shall deliver said policy or policies or certificates thereof to
Landlord on or before the Lease Commencement Date and at least thirty (30) days
before the expiration dates thereof. In the event Tenant shall fail to procure
such insurance, or to deliver such policies or certificate, Landlord may, at
its option, procure such policies for the account of Tenant, and the cost
thereof shall be paid to Landlord within five (5) days after delivery to Tenant
of bills therefor.


     10.5 Subrogation. Landlord and Tenant intend that their respective
property loss risks shall be borne by reasonable insurance carriers to the
extent above provided, and Landlord and Tenant hereby agree to look solely to,
and seek recovery only from, their respective insurance carriers in the event
of a property loss to the extent that such coverage is agreed to be provided
hereunder. The parties each hereby waive all rights and claims against each
other for such losses, and waive all rights of subrogation of their respective
insurers, provided such waiver of subrogation shall not affect the right to the
insured to recover thereunder. The parties agree that their respective
insurance policies are now, or shall be, endorsed such that the waiver of
subrogation shall not affect the right of the insured to recover thereunder, so
long as no material additional premium is charged therefor.


     10.6 Additional Insurance Obligations. Tenant shall carry and maintain
during the entire Lease Term, at Tenant’s sole cost and expense, increased
amounts of the insurance required to be carried by Tenant pursuant to this
Article 10 and such other reasonable types of insurance coverage and in such
reasonable amounts covering the Premises and Tenant’s operations therein, as
may be reasonably requested by Landlord.


ARTICLE 11



DAMAGE AND DESTRUCTION



     11.1 Repair of Damage to Premises by Landlord. Tenant shall promptly
notify Landlord of any damage to the Premises resulting from fire or any other
casualty. If the Premises or any Common Areas serving or providing access to
the Premises shall be damaged by fire or other casualty, Landlord shall
promptly and diligently, subject to reasonable delays for insurance adjustment
or other matters beyond Landlord’s reasonable control, and subject to all other
terms of this Article 11, restore the Base Building and such Common Areas.
Such restoration shall be to substantially the same condition of the Base
Building and the Common Areas prior to the casualty, except for modifications
required by zoning and building codes and other laws or by the holder of a
mortgage on the Building or Project or any other modifications to the Common
Areas deemed desirable by Landlord, provided that access to the Premises and
any common restrooms serving the Premises shall not be materially impaired.
Upon the occurrence of any damage to the Premises, upon notice (the “Landlord
Repair Notice”) to


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Tenant from Landlord, Tenant shall assign to Landlord (or to
any party designated by Landlord) all insurance proceeds payable to Tenant
under Tenant’s insurance required under Section 10.3 of this Lease, and
Landlord shall repair any injury or damage to the Tenant Improvements installed
in the Premises and shall return such Tenant Improvements to their original
condition; provided that if the cost of such repair by Landlord exceeds the
amount of insurance proceeds received by Landlord from Tenant’s insurance
carrier, as assigned by Tenant, the cost of such repairs shall be paid by
Tenant to Landlord prior to Landlord’s commencement of repair of the damage.
In the event that Landlord does not deliver the Landlord Repair Notice within
sixty (60) days following the date the casualty becomes known to Landlord,
Tenant shall, at its sole cost and expense, repair any injury or damage to the
Tenant Improvements installed in the Premises and shall return such Tenant
Improvements to their original condition. Whether or not Landlord delivers a
Landlord Repair Notice, prior to the commencement of construction, Tenant shall
submit to Landlord, for Landlord’s review and approval, all plans,
specifications and working drawings relating thereto, and Landlord shall select
the contractors to perform such improvement work. Landlord shall not be liable
for any inconvenience or annoyance to Tenant or its visitors, or injury to
Tenant’s business resulting in any way from such damage or the repair thereof;
provided however, that if such fire or other casualty shall have damaged the
Premises or Common Areas necessary to Tenant’s occupancy, Landlord shall allow
Tenant a proportionate abatement of Rent during the time and to the extent the
Premises are unfit for occupancy for the purposes permitted under this Lease,
and not occupied by Tenant as a result thereof; provided, further, however,
that if the damage or destruction is due to the gross negligence or willful
misconduct of Tenant or any of its agents, employees, contractors, invitees or
guests, Tenant shall be responsible for any reasonable, applicable insurance
deductible (which shall be payable to Landlord upon demand) and there shall be
no rent abatement. In the event that Landlord shall not deliver the Landlord
Repair Notice, Tenant’s right to rent abatement pursuant to the preceding
sentence shall terminate as of the date which is reasonably determined by
Landlord to be the date Tenant should have completed repairs to the Premises
assuming Tenant used reasonable due diligence in connection therewith.


     11.2 Landlord’s Option to Repair. Notwithstanding the terms of Section
11.1 of this Lease, Landlord may elect not to rebuild and/or restore the
Premises, Building and/or Project, and instead terminate this Lease, by
notifying Tenant in writing of such termination within sixty (60) days after
the date of discovery of the damage, such notice to include a termination date
giving Tenant sixty (60) days to vacate the Premises, but Landlord may so elect
only if the Building or Project shall be damaged by fire or other casualty or
cause, whether or not the Premises are affected, and one or more of the
following conditions is present: (i) in Landlord’s reasonable judgment, repairs
cannot reasonably be completed within one hundred eighty (180) days after the
date of discovery of the damage (when such repairs are made without the payment
of overtime or other premiums); (ii) the holder of any mortgage on the Building
or Project or ground lessor with respect to the Building or Project shall
require that the insurance proceeds or any portion thereof be used to retire
the mortgage debt, and in such event any remaining proceeds are insufficient to
complete the required repairs, or shall terminate the ground lease, as the case
may be; (iii) the damage is not fully covered by Landlord’s insurance policies;
or (iv) the damage occurs during the last twelve (12) months of the Lease Term
and the damage, in the reasonable opinion of Landlord, cannot be repaired
within sixty (60) days from the date of discovery of such damage, and, in such
event, Tenant shall also be entitled to terminate this Lease by delivering
written notice to Landlord within ten (10) days after the earlier of (A) the


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date of Landlord’s notification that the repairs cannot be completed within
sixty (60) days, or (B) the expiration of such sixty (60) day period after
discovery of such damage, unless Landlord has commenced such repairs within
such sixty (60) day period and diligently pursues same to completion.


     11.3 Waiver of Statutory Provisions. The provisions of this Lease,
including this Article 11, constitute an express agreement between Landlord and
Tenant with respect to any and all damage to, or destruction of, all or any
part of the Premises, the Building or the Project, and any statute or
regulation of the State of California, including, without limitation, Sections
1932(2) and 1933(4) of the California Civil Code, with respect to any rights or
obligations concerning damage or destruction in the absence of an express
agreement between the parties, and any other statute or regulation, now or
hereafter in effect, shall have no application to this Lease or any damage or
destruction to all or any part of the Premises, the Building or the Project.


ARTICLE 12



NONWAIVER



     No provision of this Lease shall be deemed waived by either party hereto
unless expressly waived in a writing signed thereby. The waiver by either
party hereto of any breach of any term, covenant or condition herein contained
shall not be deemed to be a waiver of any subsequent breach of same or any
other term, covenant or condition herein contained. The subsequent acceptance
of Rent hereunder by Landlord shall not be deemed to be a waiver of any
preceding breach by Tenant of any term, covenant or condition of this Lease,
other than the failure of Tenant to pay the particular Rent so accepted,
regardless of Landlord’s knowledge of such preceding breach at the time of
acceptance of such Rent. No acceptance of a lesser amount than the Rent herein
stipulated shall be deemed a waiver of Landlord’s right to receive the full
amount due, nor shall any endorsement or statement on any check or payment or
any letter accompanying such check or payment be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice
to Landlord’s right to recover the full amount due. No receipt of monies by
Landlord from Tenant after the termination of this Lease shall in any way alter
the length of the Lease Term or of Tenant’s right of possession hereunder, or
after the giving of any notice shall reinstate, continue or extend the Lease
Term or affect any notice given Tenant prior to the receipt of such monies, it
being agreed that after the service of notice or the commencement of a suit, or
after final judgment for possession of the Premises, Landlord may receive and
collect any Rent due, and the payment of said Rent shall not waive or affect
said notice, suit or judgment.


ARTICLE 13



CONDEMNATION



     If the whole or any part of the Premises, Building or Project shall be
taken by power of eminent domain or condemned by any competent authority for
any public or quasi-public use or purpose, or if any adjacent property or
street shall be so taken or condemned, or reconfigured or vacated by such
authority in such manner as to require the use, reconstruction or remodeling of
any part of the Premises, Building or Project, or if Landlord shall grant a
deed or other


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instrument in lieu of such taking by eminent domain or
condemnation, Landlord shall have the option to terminate this Lease effective
as of the date possession is required to be surrendered to the authority. If
more than twenty-five percent (25%) of the rentable square feet of the Premises
is taken, or if access to the Premises is substantially impaired, in each case
for a period in excess of one hundred eighty (180) days, Tenant shall have the
option to terminate this Lease effective as of the date possession is required
to be surrendered to the authority. Tenant shall not because of such taking
assert any claim against Landlord or the authority for any compensation because
of such taking and Landlord shall be entitled to the entire award or payment in
connection therewith, except that Tenant shall have the right to file any
separate claim available to Tenant for any taking of Tenant’s personal property
and fixtures belonging to Tenant and removable by Tenant upon expiration of the
Lease Term pursuant to the terms of this Lease, and for moving expenses, so
long as such claims do not diminish the award available to Landlord, its ground
lessor with respect to the Building or Project or its mortgagee, and such claim
is payable separately to Tenant. All Rent shall be apportioned as of the date
of such termination. If any part of the Premises shall be taken, and this
Lease shall not be so terminated, the Rent shall be proportionately abated.
Tenant hereby waives any and all rights it might otherwise have pursuant to
Section 1265.130 of The California Code of Civil Procedure. Notwithstanding
anything to the contrary contained in this Article 13, in the event of a
temporary taking of all or any portion of the Premises for a period of one
hundred and eighty (180) days or less, then this Lease shall not terminate but
the Base Rent and the Additional Rent shall be abated for the period of such
taking in proportion to the ratio that the amount of rentable square feet of
the Premises taken bears to the total rentable square feet of the Premises.
Landlord shall be entitled to receive the entire award made in connection with
any such temporary taking.


ARTICLE 14



ASSIGNMENT AND SUBLETTING



     14.1 Transfers. Tenant shall not, without the prior written consent of
Landlord, assign, mortgage, pledge, hypothecate, encumber, or permit any lien
to attach to, or otherwise transfer, this Lease or any interest hereunder,
permit any assignment, or other transfer of this Lease or any interest
hereunder by operation of law, sublet the Premises or any part thereof, or
enter into any license or concession agreements or otherwise permit the
occupancy or use of the Premises or any part thereof by any persons other than
Tenant and its employees and contractors (all of the foregoing are hereinafter
sometimes referred to collectively as “Transfers” and any person to whom any
Transfer is made or sought to be made is hereinafter sometimes referred to as a
“Transferee”). If Tenant desires Landlord’s consent to any Transfer, Tenant
shall notify Landlord in writing, which notice (the “Transfer Notice”) shall
include (i) the proposed effective date of the Transfer, which shall not be
less than thirty (30) days nor more than one hundred eighty (180) days after
the date of delivery of the Transfer Notice, (ii) a description of the portion
of the Premises to be transferred (the “Subject Space”), (iii) all of the terms
of the proposed Transfer and the consideration therefor, including calculation
of the “Transfer Premium”, as that term is defined in Section 14.3 below, in
connection with such Transfer, the name and address of the proposed Transferee,
and an executed copy of all documentation effectuating the proposed Transfer,
including all operative documents to evidence such Transfer and all agreements
incidental or related to such Transfer, provided that Landlord shall have the
right to reasonably approve the form of Tenant’s Transfer documents in
connection with the


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documentation of such Transfer, (iv) current financial
statements of the proposed Transferee certified by an officer, partner or owner
thereof, business credit and personal references and history of the proposed
Transferee and any other information required by Landlord which will enable
Landlord to determine the financial responsibility, character, and reputation
of the proposed Transferee, nature of such Transferee’s business and proposed
use of the Subject Space and (v) an executed estoppel certificate from Tenant
in the form attached hereto as Exhibit E. Any Transfer made without Landlord’s
prior written consent shall, at Landlord’s option, be null, void and of no
effect, and shall, at Landlord’s option, constitute a default by Tenant under
this Lease. Whether or not Landlord consents to any proposed Transfer, Tenant
shall pay Landlord’s review and processing fees, as well as any reasonable
professional fees (including, without limitation, attorneys’, accountants’,
architects’, engineers’ and consultants’ fees) incurred by Landlord, within
thirty (30) days after written request by Landlord.


     14.2 Landlord’s Consent. Landlord shall not unreasonably withhold its
consent to any proposed Transfer of the Subject Space to the Transferee on the
terms specified in the Transfer Notice. Without limitation as to other
reasonable grounds for withholding consent, the parties hereby agree that it
shall be reasonable under this Lease and under any applicable law for Landlord
to withhold consent to any proposed Transfer where one or more of the following
apply:


           14.2.1 The Transferee is of a character or reputation or engaged in a
business which is not consistent with the quality of the Building or the
Project;


           14.2.2 The Transferee intends to use the Subject Space for purposes which
are not permitted under this Lease;


           14.2.3 The Transferee is either a governmental agency or instrumentality
thereof;


           14.2.4 The Transferee is not a party of reasonable financial worth and/or
financial stability in light of the responsibilities to be undertaken in
connection with the Transfer on the date consent is requested;


           14.2.5 The proposed Transfer would cause a violation of another lease for
space in the Project, or would give an occupant of the Project a right to
cancel its lease;


           14.2.6 The terms of the proposed Transfer will allow the Transferee to
exercise a right of renewal, right of expansion, right of first offer, or other
similar right held by Tenant (or will allow the Transferee to occupy space
leased by Tenant pursuant to any such right);


           14.2.7 Either the proposed Transferee, or any person or entity which
directly or indirectly, controls, is controlled by, or is under common control
with, the proposed Transferee, (i) occupies space in the Project at the time of
the request for consent, or (ii) is negotiating with Landlord to lease space in
the Project at such time; or


           14.2.8 The Transferee does not intend to occupy the entire Premises and
conduct its business therefrom for a substantial portion of the term of the
Transfer.


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     If Landlord consents to any Transfer pursuant to the terms of this Section
14.2 (and does not exercise any recapture rights Landlord may have under
Section 14.4 of this Lease), Tenant may within six (6) months after Landlord’s
consent, but not later than the expiration of said six-month period, enter into
such Transfer of the Premises or portion thereof, upon substantially the same
terms and conditions as are set forth in the Transfer Notice furnished by
Tenant to Landlord pursuant to Section 14.1 of this Lease, provided that if
there are any changes in the terms and conditions from those specified in the
Transfer Notice (i) such that Landlord would initially have been entitled to
refuse its consent to such Transfer under this Section 14.2, or (ii) which
would cause the proposed Transfer to be more favorable to the Transferee than
the terms set forth in Tenant’s original Transfer Notice, Tenant shall again
submit the Transfer to Landlord for its approval and other action under this
Article 14 (including Landlord’s right of recapture, if any, under Section 14.4
of this Lease). Notwithstanding anything to the contrary in this Lease, if
Tenant or any proposed Transferee claims that Landlord has unreasonably
withheld or delayed its consent under Section 14.2 or otherwise has breached or
acted unreasonably under this Article 14, Tenant hereby waives any right at law
or in equity to terminate this Lease, on its own behalf and, to the extent
permitted under all applicable laws, on behalf of the proposed Transferee, but
Tenant retains the right to sue Landlord for any damages suffered by Tenant
and/or for specific performance if Landlord unreasonably withholds, conditions
or delays its consent to a proposed Transfer (other than damages or injury to,
or interference with, Tenant’s business, including without limitation, loss of
profits, however occurring). Tenant shall indemnify, defend and hold harmless
Landlord from any and all liability, losses, claims, damages, costs, expenses,
causes of action and proceedings involving any third party or parties
(including without limitation Tenant’s proposed subtenant or assignee) who
claim they were damaged by Landlord’s wrongful withholding or conditioning of
Landlord’s consent.


     14.3 Transfer Premium. If Landlord consents to a Transfer, as a condition
thereto which the parties hereby agree is reasonable, Tenant shall pay to
Landlord seventy-five percent (75%) of any “Transfer Premium,” as that term is
defined in this Section 14.3, received by Tenant from such Transferee.
“Transfer Premium” shall mean all rent, additional rent or other consideration
payable by such Transferee in connection with the Transfer in excess of the
Rent and Additional Rent payable by Tenant under this Lease during the term of
the Transfer on a per rentable square foot basis if less than all of the
Premises is transferred, after deducting the reasonable expenses incurred by
Tenant for (i) any changes, alterations and improvements to the Premises in
connection with the Transfer, (ii) any free base rent reasonably provided to
the Transferee, and (iii) any brokerage commissions and reasonable legal fees
in connection with the Transfer. For purposes of this Section 14.3 only, when
calculating the Transfer Premium, Tenant’s Rent shall be designated as $5.50
per rentable square foot. “Transfer Premium” shall also include, but not be
limited to, key money, bonus money or other cash consideration paid by
Transferee to Tenant in connection with such Transfer (provided Tenant may
amortize such consideration over the term of the transfer to reflect the
effective rate), and any payment in excess of fair market value for services
rendered by Tenant to Transferee or for assets, fixtures, inventory, equipment,
or furniture transferred by Tenant to Transferee in connection with such
Transfer. In the calculations of the Rent (as it relates to the Transfer
Premium calculated under this Section 14.3), and the Transferee’s Rent and
Quoted Rent under Section 14.2 of this Lease, the Rent paid during each annual
period for the Subject Space, and the Quoted Rent shall be computed after
adjusting such rent to the actual effective rent to be paid, taking into
consideration any and all leasehold concessions granted in connection
therewith, including, but


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not limited to, any rent credit and tenant
improvement allowance. For purposes of calculating any such effective rent all
such concessions shall be amortized on a straight-line basis over the relevant
term.


     14.4 Landlord’s Option as to Subject Space. Notwithstanding anything to
the contrary contained in this Article 14, in the event that (i) Tenant intends
to Transfer any portion of the Premises for a term that does not expire prior
to the expiration of the third (3rd) Lease Year, or (ii) Tenant intends to
Transfer any space that will result in the assignment or sublease, in the
aggregate, of in excess of 24,091 rentable square feet of the Premises,
regardless of the term of any such Transfer, then Landlord shall have the
option, by giving written notice to Tenant within thirty (30) days after
receipt of any Transfer Notice, to recapture the Subject Space. Such recapture
notice shall cancel and terminate this Lease with respect to the Subject Space
as of the date stated in the Transfer Notice as the effective date of the
proposed Transfer. In the event of a recapture by Landlord, if this Lease
shall be canceled with respect to less than the entire Premises, the Rent
reserved herein shall be prorated on the basis of the number of rentable square
feet retained by Tenant in proportion to the number of rentable square feet
contained in the Premises, and this Lease as so amended shall continue
thereafter in full force and effect, and upon request of either party, the
parties shall execute written confirmation of the same. If Landlord declines,
or fails to elect in a timely manner to recapture the Subject Space under this
Section 14.4, then, provided Landlord has consented to the proposed Transfer,
Tenant shall be entitled to proceed to transfer the Subject Space to the
proposed Transferee, subject to provisions of this Article 14.


     14.5 Effect of Transfer. If Landlord consents to a Transfer, (i) the
terms and conditions of this Lease shall in no way be deemed to have been
waived or modified, (ii) such consent shall not be deemed consent to any
further Transfer by either Tenant or a Transferee, (iii) Tenant shall deliver
to Landlord, promptly after execution, an original executed copy of all
documentation pertaining to the Transfer in form reasonably acceptable to
Landlord, (iv) Tenant shall furnish upon Landlord’s request a complete
statement, certified by an independent certified public accountant, or Tenant’s
chief financial officer, setting forth in detail the computation of any
Transfer Premium Tenant has derived and shall derive from such Transfer, and
(v) no Transfer relating to this Lease or agreement entered into with respect
thereto, whether with or without Landlord’s consent, shall relieve Tenant or
any guarantor of the Lease from any liability under this Lease, including,
without limitation, in connection with the Subject Space. Landlord or its
authorized representatives shall have the right at all reasonable times to
audit the books, records and papers of Tenant relating to any Transfer, and
shall have the right to make copies thereof. If the Transfer Premium
respecting any Transfer shall be found understated, Tenant shall, within thirty
(30) days after demand, pay the deficiency, and if understated by more than two
percent (2%), Tenant shall pay Landlord’s costs of such audit.


     14.6 Additional Transfers. For purposes of this Lease, the term
“Transfer” shall also include (i) if Tenant is a partnership, the withdrawal or
change, voluntary, involuntary or by operation of law, of twenty-five percent
(25%) or more of the partners, or transfer of twenty-five percent (25%) or more
of partnership interests, within a twelve (12)-month period, or the dissolution
of the partnership without immediate reconstitution thereof, and (ii) if Tenant
is a closely held corporation (i.e., whose stock is not publicly held and not
traded through an exchange or over the counter), (A) the dissolution, merger,
consolidation or other reorganization


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of Tenant or (B) the sale or other
transfer of an aggregate of twenty-five percent (25%) or more of the voting
shares of Tenant (other than to immediate family members by reason of gift or
death), within a twelve (12)-month period, or (C) the sale, mortgage,
hypothecation or pledge of an aggregate of twenty-five percent (25%) or more of
the value of the unencumbered assets of Tenant within a twelve (12)-month
period, it being expressly agreed that any of the foregoing matters set forth
in class (ii) shall not be deemed to be a Transfer if Tenant is a publicly held
corporation.


     14.7 Occurrence of Default. Any Transfer hereunder shall be subordinate
and subject to the provisions of this Lease, and if this Lease shall be
terminated during the term of any Transfer, Landlord shall have the right to:
(i) treat such Transfer as cancelled and repossess the Subject Space by any
lawful means, or (ii) require that such Transferee attorn to and recognize
Landlord as its landlord under any such Transfer. If Tenant shall be in
default under this Lease, Landlord is hereby irrevocably authorized, as
Tenant’s agent and attorney-in-fact, to direct any Transferee to make all
payments under or in connection with the Transfer directly to Landlord (which
Landlord shall apply towards Tenant’s obligations under this Lease) until such
default is cured. Such Transferee shall rely on any representation by Landlord
that Tenant is in default hereunder, without any need for confirmation thereof
by Tenant. Upon any assignment, the assignee shall assume in writing all
obligations and covenants of Tenant thereafter to be performed or observed
under this Lease. No collection or acceptance of rent by Landlord from any
Transferee shall be deemed a waiver of any provision of this Article 14 or the
approval of any Transferee or a release of Tenant from any obligation under
this Lease, whether theretofore or thereafter accruing. In no event shall
Landlord’s enforcement of any provision of this Lease against any Transferee be
deemed a waiver of Landlord’s right to enforce any term of this Lease against
Tenant or any other person. If Tenant’s obligations hereunder have been
guaranteed, Landlord’s consent to any Transfer shall not be effective unless
the guarantor also consents to such Transfer.


     14.8 Non-Transfers. Notwithstanding anything to the contrary contained in
this Article 14, neither (i) an assignment to a transferee of all or
substantially all of the assets of Tenant, (ii) an assignment to a transferee
which is the resulting entity of a merger or consolidation of Tenant with
another entity, (iii) an initial public offering of Tenant’s stock on a
nationally recognized stock exchange, nor (iv) an assignment or subletting of
all or a portion of the Premises to an affiliate of Tenant (an “Affiliate”) (an
entity which is controlled by, controls, or is under common control with,
Tenant), shall be deemed a Transfer under this Article 14, provided that Tenant
notifies Landlord of any such assignment or sublease and promptly supplies
Landlord with any documents or information reasonably requested by Landlord
regarding such assignment or sublease or such affiliate, and further provided
that such assignment or sublease is not a subterfuge by Tenant to avoid its
obligations under this Lease. “Control,” as used in this Section 14.8, shall
mean the ownership, directly or indirectly, of at least fifty-one percent (51%)
of the voting securities of, or possession of the right to vote, in the
ordinary direction of its affairs, of at least fifty-one percent (51%) of the
voting interest in, any person or entity.


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ARTICLE 15



SURRENDER OF PREMISES; OWNERSHIP AND

REMOVAL OF TRADE FIXTURES



     15.1 Surrender of Premises. No act or thing done by Landlord or any agent
or employee of Landlord during the Lease Term shall be deemed to constitute an
acceptance by Landlord of a surrender of the Premises unless such intent is
specifically acknowledged in writing by Landlord. The delivery of keys to the
Premises to Landlord or any agent or employee of Landlord shall not constitute
a surrender of the Premises or effect a termination of this Lease, whether or
not the keys are thereafter retained by Landlord, and notwithstanding such
delivery Tenant shall be entitled to the return of such keys at any reasonable
time upon request until this Lease shall have been properly terminated. The
voluntary or other surrender of this Lease by Tenant, whether accepted by
Landlord or not, or a mutual termination hereof, shall not work a merger, and
at the option of Landlord shall operate as an assignment to Landlord of all
subleases or subtenancies affecting the Premises or terminate any or all such
sublessees or subtenancies.


     15.2 Removal of Tenant Property by Tenant. Upon the expiration of the
Lease Term, or upon any earlier termination of this Lease, Tenant shall,
subject to the provisions of this Article 15, quit and surrender possession of
the Premises to Landlord in as good order and condition as when Tenant took
possession and as thereafter improved by Landlord and/or Tenant, reasonable
wear and tear and repairs which are specifically made the responsibility of
Landlord hereunder excepted. Upon such expiration or termination, Tenant
shall, without expense to Landlord, remove or cause to be removed from the
Premises all debris and rubbish, and such items of furniture, equipment,
business and trade fixtures, free-standing cabinet work, movable partitions and
other articles of personal property owned by Tenant or installed or placed by
Tenant at its expense in the Premises, and such similar articles of any other
persons claiming under Tenant, as Landlord may, in its sole discretion, require
to be removed, and Tenant shall repair at its own expense all damage to the
Premises and Building resulting from such removal.


ARTICLE 16



HOLDING OVER



     If Tenant holds over after the expiration of the Lease Term or earlier
termination thereof, with or without the express or implied consent of
Landlord, such tenancy shall be from month-to-month only, and shall not
constitute a renewal hereof or an extension for any further term, and in such
case Rent shall be payable at a monthly rate equal (A) 150% of the greater of
(i) the Rent applicable during the last rental period of the Lease Term under
this Lease, and (ii) the then current market rent for the Premises (as
determined by Landlord) during the first sixty (60) days of holdover, and (B)
200% of the greater of (i) and (ii), above, thereafter. Such month-to-month
tenancy shall be subject to every other applicable term, covenant and agreement
contained herein. For purposes of this Article 16, a holding over shall
include Tenant’s remaining in the Premises after the expiration or earlier
termination of the Lease Term, as required pursuant to the terms of Section
8.5, above, to remove any required improvements or Alterations (and to complete
any corresponding repairs or restorations, as set forth in Section 8.5 of this
Lease). Nothing contained in this Article 16 shall be construed as consent by
Landlord to any holding


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over by Tenant, and Landlord expressly reserves the
right to require Tenant to surrender possession of the Premises to Landlord as
provided in this Lease upon the expiration or other termination of this Lease.
The provisions of this Article 16 shall not be deemed to limit or constitute a
waiver of any other rights or remedies of Landlord provided herein or at law.
If Tenant fails to surrender the Premises upon the termination or expiration of
this Lease, in addition to any other liabilities to Landlord accruing
therefrom, Tenant shall protect, defend, indemnify and hold Landlord harmless
from all loss, costs (including reasonable attorneys’ fees) and liability
resulting from such failure, including, without limiting the generality of the
foregoing, any claims made by any succeeding tenant founded upon such failure
to surrender and any lost profits to Landlord resulting therefrom.


ARTICLE 17



ESTOPPEL CERTIFICATES



     Within ten (10) days following a request in writing by Landlord, Tenant
shall execute, acknowledge and deliver to Landlord an estoppel certificate,
which, as submitted by Landlord, shall be substantially in the form
of Exhibit
E, attached hereto (or such other form as may be required by any prospective
mortgagee or purchaser of the Project, or any portion thereof), indicating
therein any exceptions thereto that may exist at that time, and shall also
contain any other information reasonably requested by Landlord or Landlord’s
mortgagee or prospective mortgagee. Any such certificate may be relied upon by
any prospective mortgagee or purchaser of all or any portion of the Project.
Tenant shall execute and deliver whatever other instruments may be reasonably
required for such purposes. At any time during the Lease Term, Landlord may
require Tenant to provide Landlord with a current financial statement and
financial statements of the two (2) years prior to the current financial
statement year. Such statements shall be prepared in accordance with generally
accepted accounting principles and, if such is the normal practice of Tenant,
shall be audited by an independent certified public accountant. Failure of
Tenant to timely execute, acknowledge and deliver such estoppel certificate or
other instruments shall constitute an acceptance of the Premises and an
acknowledgment by Tenant that statements included in the estoppel certificate
are true and correct, without exception.


ARTICLE 18



SUBORDINATION



     This Lease shall be subject and subordinate to all present and future
ground or underlying leases of the Building or Project and to the lien of any
mortgage, trust deed or other encumbrances now or hereafter in force against
the Building or Project or any part thereof, if any, and to all renewals,
extensions, modifications, consolidations and replacements thereof, and to all
advances made or hereafter to be made upon the security of such mortgages or
trust deeds, unless the holders of such mortgages, trust deeds or other
encumbrances, or the lessors under such ground lease or underlying leases,
require in writing that this Lease be superior thereto. In consideration of,
and as a condition precedent to, Tenant’s agreement to permit its interest
pursuant to this Lease to be subordinated to any particular future ground or
underlying lease of the Building or the Project or to the lien of any future
mortgage or trust deed, and to any renewals, extensions, modifications,
consolidations and replacements thereof, Landlord shall


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deliver to Tenant a
commercially reasonable non-disturbance agreement executed by the landlord
under such ground lease or underlying lease or the holder of such mortgage or
trust deed. Within forty-five (45) days after the Lease Commencement Date,
Landlord shall provide Tenant with a nondisturbance agreement in a commercially
reasonable form from Landlord’s presently existing lender holding a first deed
of trust on the Project. Tenant covenants and agrees in the event any
proceedings are brought for the foreclosure of any such mortgage or deed in
lieu thereof (or if any ground lease is terminated), to attorn, without any
deductions or set-offs whatsoever, to the lienholder or purchaser or any
successors thereto upon any such foreclosure sale or deed in lieu thereof (or
to the ground lessor), if so requested to do so by such purchaser or lienholder
or ground lessor, and to recognize such purchaser or lienholder or ground
lessor as the lessor under this Lease, provided such lienholder or purchaser or
ground lessor shall agree to accept this Lease and not disturb Tenant’s
occupancy, so long as Tenant timely pays the rent and observes and performs the
terms, covenants and conditions of this Lease to be observed and performed by
Tenant. Landlord’s interest herein may be assigned as security at any time to
any lienholder. Tenant shall, within five (5) days of request by Landlord,
execute such further instruments or assurances as Landlord may reasonably deem
necessary to evidence or confirm the subordination or superiority of this Lease
to any such mortgages, trust deeds, ground leases or underlying leases. Tenant
waives the provisions of any current or future statute, rule or law which may
give or purport to give Tenant any right or election to terminate or otherwise
adversely affect this Lease and the obligations of the Tenant hereunder in the
event of any foreclosure proceeding or sale.


ARTICLE 19



DEFAULTS; REMEDIES



     19.1 Events of Default. The occurrence of any of the following shall
constitute a default of this Lease by Tenant:


           19.1.1 Any failure by Tenant to pay any Rent or any other charge required
to be paid under this Lease, or any part thereof, when due unless such failure
is cured within three (3) days after notice; or


           19.1.2 Except where a specific time period is otherwise set forth for
Tenant’s performance in this Lease, in which event the failure to perform by
Tenant within such time period shall be a default by Tenant under this Section
19.1.2, any failure by Tenant to observe or perform any other provision,
covenant or condition of this Lease to be observed or performed by Tenant where
such failure continues for thirty (30) days after written notice thereof from
Landlord to Tenant; provided that if the nature of such default is such that
the same cannot reasonably be cured within a thirty (30) day period, Tenant
shall not be deemed to be in default if it diligently commences such cure
within such period and thereafter diligently proceeds to rectify and cure such
default, but in no event exceeding a period of time in excess of one hundred
twenty (120) days after written notice thereof from Landlord to Tenant; or


           19.1.3 To the extent permitted by law, a general assignment by Tenant or
any guarantor of this Lease for the benefit of creditors, or the taking of any
corporate action in furtherance of bankruptcy or dissolution whether or not
there exists any proceeding under an


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insolvency or bankruptcy law, or the
filing by or against Tenant or any guarantor of any proceeding under an
insolvency or bankruptcy law, unless in the case of a proceeding filed against
Tenant or any guarantor the same is dismissed within sixty (60) days, or the
appointment of a trustee or receiver to take possession of all or substantially
all of the assets of Tenant or any guarantor, unless possession is restored to
Tenant or such guarantor within thirty (30) days, or any execution or other
judicially authorized seizure of all or substantially all of Tenant’s assets
located upon the Premises or of Tenant’s interest in this Lease, unless such
seizure is discharged within thirty (30) days; or


           19.1.4 Abandonment or vacation of all or a substantial portion of the
Premises by Tenant, provided this term shall not apply so long as Tenant is
actively marketing the Premises for assignment or sublease; or


           19.1.5 The failure by Tenant to observe or perform according to the
provisions of Articles 5, 14, 17 or 18 of this Lease where such failure
continues for more than three (3) business days after notice from Landlord,
with respect to Articles 17 or 18, or more than five (5) business days with
respect to Articles 5 or 14; or


           19.1.6 Tenant’s failure to occupy the Premises within thirty (30) business
days after the Lease Commencement Date.


     The notice periods provided herein are; in lieu of, and not in addition
to, any notice periods provided by law.


     19.2 Remedies Upon Default. Upon the occurrence of any event of default
by Tenant, Landlord shall have, in addition to any other remedies available to
Landlord at law or in equity (all of which remedies shall be distinct, separate
and cumulative), the option to pursue any one or more of the following
remedies, each and all of which shall be cumulative and nonexclusive, without
any notice or demand whatsoever.


           19.2.1 Terminate this Lease, in which event Tenant shall immediately
surrender the Premises to Landlord, and if Tenant fails to do so, Landlord may,
without prejudice to any other remedy which it may have for possession or
arrearages in rent, enter upon and take possession of the Premises and expel or
remove Tenant and any other person who may be occupying the Premises or any
part thereof, without being liable for prosecution or any claim or damages
therefor; and Landlord may recover from Tenant the following:


                 (i) The worth at the time of any unpaid rent which has been earned at the
time of such termination; plus


                 (ii) The worth at the time of award of the amount by which the unpaid rent
which would have been earned after termination until the time of award exceeds
the amount of such rental loss that Tenant proves could have been reasonably
avoided; plus


                 (iii) The worth at the time of award of the amount by which the unpaid
rent for the balance of the Lease Term after the time of award exceeds the
amount of such rental loss that Tenant proves could have been reasonably
avoided; plus


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                 (iv) Any other amount necessary to compensate Landlord for all the
detriment proximately caused by Tenant’s failure to perform its obligations
under this Lease or which in the ordinary course of things would be likely to
result therefrom, specifically including but not limited to, brokerage
commissions and advertising expenses incurred, expenses of remodeling the
Premises or any portion thereof for a new tenant, whether for the same or a
different use, and any special concessions made to obtain a new tenant; and


                 (v) At Landlord’s election, such other amounts in addition to or in lieu
of the foregoing as may be permitted from time to time by applicable law.


     The term “rent” as used in this Section 19.2 shall be deemed to be and to
mean all sums of every nature required to be paid by Tenant pursuant to the
terms of this Lease, whether to Landlord or to others. As used in Paragraphs
19.2.1(i) and (ii), above, the “worth at the time of award” shall be computed
by allowing interest at the rate set forth in Article 25 of this Lease, but in
no case greater than the maximum amount of such interest permitted by law. As
used in Paragraph 19.2.1(iii) above, the “worth at the time of award” shall be
computed by discounting such amount at the discount rate of the Federal Reserve
Bank of San Francisco at the time of award plus one percent (1%).


           19.2.2 Landlord shall have the remedy described in California Civil Code
Section 1951.4 (lessor may continue lease in effect after lessee’s breach and
abandonment and recover rent as it becomes due, if lessee has the right to
sublet or assign, subject only to reasonable limitations). Accordingly, if
Landlord does not elect to terminate this Lease on account of any default by
Tenant, Landlord may, from time to time, without terminating this Lease,
enforce all of its rights and remedies under this Lease, including the right to
recover all rent as it becomes due.


           19.2.3 Landlord shall at all times have the rights and remedies (which
shall be cumulative with each other and cumulative and in addition to those
rights and remedies available under Sections 19.2.1 and 19.2.2, above, or any
law or other provision of this Lease), without prior demand or notice except as
required by applicable law, to seek any declaratory, injunctive or other
equitable relief, and specifically enforce this Lease, or restrain or enjoin a
violation or breach of any provision hereof.


     19.3 Subleases of Tenant. Whether or not Landlord elects to terminate
this Lease on account of any default by Tenant, as set forth in this Article
19, Landlord shall have the right to terminate any and all subleases, licenses,
concessions or other consensual arrangements for possession entered into by
Tenant and affecting the Premises or may, in Landlord’s sole discretion,
succeed to Tenant’s interest in such subleases, licenses, concessions or
arrangements. In the event of Landlord’s election to succeed to Tenant’s
interest in any such subleases, licenses, concessions or arrangements, Tenant
shall, as of the date of notice by Landlord of such election, have no further
right to or interest in the rent or other consideration receivable thereunder.


     19.4 Form of Payment After Default. Following the occurrence of an event
of default by Tenant, Landlord shall have the right to require that any or all
subsequent amounts paid by Tenant to Landlord hereunder, whether to cure the
default in question or otherwise, be paid in the form of cash, money order,
cashier’s or certified check drawn on an institution


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acceptable to Landlord, or
by other means approved by Landlord, notwithstanding any prior practice of
accepting payments in any different form.


     19.5 Efforts to Relet. No re-entry or repossession, repairs, maintenance,
changes, alterations and additions, reletting, appointment of a receiver to
protect Landlord’s interests hereunder, or any other action or omission by
Landlord shall be construed as an election by Landlord to terminate this Lease
or Tenant’s right to possession, or to accept a surrender of the Premises, nor
shall same operate to release Tenant in whole or in part from any of Tenant’s
obligations hereunder, unless express written notice of such intention is sent
by Landlord to Tenant; provided Landlord shall attempt to mitigate Landlord’s
damages to the extent required by applicable laws. Tenant hereby irrevocably
waives any right otherwise available under any law to redeem or reinstate this
Lease.


     19.6 Abatement of Rent. In the event that Tenant is prevented from using,
and does not use, the Premises or any portion thereof, as a result of (i) any
repair, maintenance or alteration performed by Landlord, or which Landlord
failed to perform, after the Lease Commencement Date and required by this
Lease, which substantially interferes with Tenant’s use of the Premises, (ii)
any failure by Landlord to provide services, utilities or access to the
Premises as required by this Lease, or (iii) the presence of hazardous
materials not brought on the Premises by Tenant or Tenant’s agents, employees,
licensees, invitees, transferees or independent contractors (any such set of
circumstances as set forth in items (i), (ii), or (iii) above, to be known as
an “Abatement Event”), then Tenant shall give Landlord notice of such Abatement
Event, and if such Abatement Event continues for five (5) consecutive business
days after Landlord’s receipt of any such notice (the “Eligibility Period”),
then the Base Rent and Tenant’s Share of Direct Expenses shall be abated or
reduced, as the case may be, after expiration of the Eligibility Period for
such time that Tenant continues to be so prevented from using, and does not
use, the Premises or a portion thereof, in the proportion that the rentable
area of the portion of the Premises that Tenant is prevented from using, and
does not use, bears to the total rentable area of the Premises; provided,
however, in the event that Tenant is prevented from using, and does not use, a
portion of the Premises for a period of time in excess of the Eligibility
Period and the remaining portion of the Premises is not sufficient to allow
Tenant to effectively conduct its business therein, and if Tenant does not
conduct its business from such remaining portion, then for such time after
expiration of the Eligibility Period during which Tenant is so prevented from
effectively conducting its business therein, the Base Rent and Tenant’s Share
of Direct Expenses for the entire Premises shall be abated for such time as
Tenant continues to be so prevented from using, and does not use, the Premises.
If, however, Tenant reoccupies any portion of the Premises during such period,
the Rent allocable to such reoccupied portion, based on the proportion that the
rentable area of such reoccupied portion of the Premises bears to the total
rentable area of the Premises, shall be payable by Tenant from the date Tenant
reoccupies such portion of the Premises. To the extent Tenant is entitled to
abatement because of an event covered by Articles 11 or 13 of this Lease, then
the Eligibility Period shall not be applicable. Such right to abate Base Rent
and Tenant’s Share of Direct Expenses shall be Tenant’s sole and exclusive
remedy at law or in equity for an Abatement Event.


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ARTICLE 20



COVENANT OF QUIET ENJOYMENT



     Landlord covenants that Tenant, on paying the Rent, charges for services
and other payments herein reserved and on keeping, observing and performing all
the other terms, covenants, conditions, provisions and agreements herein
contained on the part of Tenant to be kept, observed and performed, shall,
during the Lease Term, peaceably and quietly have, hold and enjoy the Premises
subject to the terms, covenants, conditions, provisions and agreements hereof
without interference by any persons lawfully claiming by or through Landlord.
The foregoing covenant is in lieu of any other covenant express or implied.


ARTICLE 21



LETTER OF CREDIT



     21.1 Letter of Credit.


           21.1.1 Delivery of Letter of Credit. Tenant shall deliver to Landlord
concurrent with Tenant’s execution of this Lease, an unconditional, clean,
irrevocable letter of credit (the “L-C”) in the amount of $5,781,840.00, which
L-C shall be issued by a money-center bank (a bank which accepts deposits,
maintains accounts, has a local San Francisco office which will negotiate a
letter of credit, and whose deposits are insured by the FDIC) reasonably
acceptable to Landlord, and which L-C shall be in a form and content as set
forth on Exhibit F, or otherwise reasonably acceptable to Landlord. Tenant
shall pay all expenses, points and/or fees incurred by Tenant in obtaining the
L-C.


           21.1.2 Application of Letter of Credit. The L-C shall be held by Landlord
as security for the faithful performance by Tenant of all the terms, covenants,
and conditions of this Lease to be kept and performed by Tenant during the
Lease Term. The L-C shall not be mortgaged, assigned or encumbered in any
manner whatsoever by Tenant without the prior written consent of Landlord. If
Tenant defaults with respect to any provisions of this Lease, including, but
not limited to, the provisions relating to the payment of Rent, or if Tenant
fails to renew the L-C at least thirty (30) days before its expiration,
Landlord may, but shall not be required to, draw upon all or any portion of the
L-C for payment of any Rent or any other sum in default, or for the payment of
any amount that Landlord may reasonably spend or may become obligated to spend
by reason of Tenant’s default, or to compensate Landlord for any other loss or
damage that Landlord may suffer by reason of Tenant’s default. The use,
application or retention of the L-C, or any portion thereof, by Landlord shall
not (a) prevent Landlord from exercising any other right or remedy provided by
this Lease or by law, it being intended that Landlord shall not first be
required to proceed against the L-C, nor (b) operate as a limitation on any
recovery to which Landlord may otherwise be entitled. Any amount of the L-C
which is drawn upon by Landlord, but is not used or applied by Landlord shall
be held by Landlord and deemed a security deposit (the “L-C Security Deposit”).
If any portion of the L-C is drawn upon, Tenant shall, within five (5) days
after written demand therefor, either (i) deposit cash with Landlord (which
cash shall be applied by Landlord to the L-C Security Deposit) in an amount
sufficient to cause the sum of the L-C Security Deposit and the amount of the
remaining L-C to be equivalent


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to the amount of the L-C then required under
this Lease, or (ii) reinstate the L-C to the amount then required under this
Lease, and if any portion of the L-C Security Deposit is used or applied,
Tenant shall, within five (5) days after written demand therefor, deposit cash
with Landlord (which cash shall be applied by Landlord to the L-C Security
Deposit) in an amount sufficient to restore the L-C Security Deposit to the
amount then required under this Lease, and Tenant’s failure to do so shall be a
default under this Lease. Tenant acknowledges that Landlord has the right to
transfer or mortgage its interest in the Project and the Building and in this
Lease and Tenant agrees that in the event of any such transfer or mortgage,
Landlord shall have the right to transfer or assign the L-C Security Deposit
and/or the L-C to the transferee or mortgagee, and in the event of such
transfer, Tenant shall look solely to such transferee or mortgagee for the
return of the L-C Security Deposit and/or the L-C. If Tenant shall fully and
faithfully perform every provision of this Lease to be performed by it, the L-C
Security Deposit and/or the L-C, or any balance thereof, shall be returned to
Tenant within thirty (30) days following the expiration of the Lease Term.


ARTICLE 22



INTENTIONALLY DELETED



ARTICLE 23



SIGNS



     23.1 Full Building. Subject to Landlord’s prior written approval, in its
reasonable discretion, and provided all signs are in keeping with the quality,
design and style of the Building and Project, Tenant, at its sole cost and
expense, may install identification signage anywhere in (i) the 2800 Building
at any time on or after the Lease Commencement Date, and (ii) the 2860 Building
on or after the Additional Premises Commencement Date, provided that such signs
must not be visible from the exterior of the Building, except as hereinafter
provided.


     23.2 Prohibited Signage and Other Items. Any signs, notices, logos,
pictures, names or advertisements which are installed and that have not been
separately approved by Landlord may be removed without notice by Landlord at
the sole expense of Tenant. Tenant may not, except as hereinafter provided,
install any signs on the exterior or roof of the Building, the Project or the
Common Areas. Any signs, window coverings, or blinds (even if the same are
located behind the Landlord-approved window coverings for the Building), or
other items visible from the exterior of the Premises or Building, shall be
subject to the prior approval of Landlord, in its sole discretion.


     23.3 Building Monument Signage. Tenant shall have (i) the non-exclusive
right to have a sign on each of the existing monuments at the entrances to the
Project on San Tomas Expressway and Walsh Road and the exclusive right to have
a sign on the existing monument in front of the 2860 Building, (collectively,
the “Monument Signage”); and (ii) the exclusive right to maintain and have a
sign on the awning currently attached to the 2800 Building (the “Building
Signage”) provided that (A) the size, materials, design, quality, style,
content and other specifications of Tenant’s Building Signage and Tenant’s
Monument Signage (collectively, “Tenant’s Signs”) shall be subject to
Landlord’s prior written consent, which consent may be


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withheld in Landlord’s
reasonable discretion; (B) Tenant’s Signs shall comply with all applicable
governmental rules and regulations; (C) Tenant’s right to Tenant’s Signs shall
be exercisable by Tenant or any Transferee of Tenant permitted under this Lease
while Tenant or such Transferee is in occupancy of the entire Premises or at
least one entire Building of the Premises; and (D) Tenant’s Signs on the
Project entrance monuments shall be in the position determined by Landlord in
its sole and absolute discretion. Tenant shall be responsible for all costs
associated with Tenant’s Signs, including, without limitation, all costs
incurred in connection with the design, installation, maintenance, repair,
compliance with laws and removal of Tenant’s Signs. Should the name of Tenant
be legally changed to another name (the “New Name”), or should Tenant assign
any of its signage rights as provided hereunder, such Transferee’s name shall
also be deemed to be a New Name, and Tenant (or such Transferee) shall be
entitled to modify, at Tenant’s sole cost and expense, Tenant’s name on
Tenant’s Monument Signage or Building Signage to reflect the New Name, so long
as the New Name is not an “Objectionable Name.” The term “Objectionable Name”
shall mean any name which relates to an entity which is of a character or
reputation, or is associated with a political orientation or faction, which is
inconsistent with the quality of the Project, or which would otherwise
reasonably offend a landlord of comparable buildings in the vicinity of the
Project. Further, notwithstanding the transfer by Tenant of any of Tenant’s
signage rights hereunder to any Transferee, Tenant’s signage rights hereunder
shall not be, in any manner, increased, and Tenant shall only be entitled to
allocate signage rights specifically granted hereunder to Tenant between itself
and its Transferee. Tenant shall be responsible for the removal (and for any
resulting required repairs to the applicable monument, awning, or building) of
Tenant’s Signs upon the expiration or earlier termination of this Lease, or
upon the expiration of Tenant’s right to Tenant’s Signs hereunder.


ARTICLE 24



COMPLIANCE WITH LAW



     Tenant shall not do anything or suffer anything to be done in or about the
Premises or the Project which will in any way conflict with any law, statute,
ordinance or other governmental rule, regulation or requirement now in force or
which may hereafter be enacted or promulgated. At its sole cost and expense,
Tenant shall promptly comply with all such governmental measures. Should any
standard or regulation now or hereafter be imposed on Landlord or Tenant by a
state, federal or local governmental body charged with the establishment,
regulation and enforcement of occupational, health or safety standards for
employers, employees, landlords or tenants, then Tenant agrees, at its sole
cost and expense, to comply promptly with such standards or regulations.
Tenant shall be responsible, at its sole cost and expense, to make all
alterations to the Premises as are required to comply with the governmental
rules, regulations, requirements or standards described in this Article 24.
The judgment of any court of competent jurisdiction or the admission of Tenant
in any judicial action, regardless of whether Landlord is a party thereto, that
Tenant has violated any of said governmental measures, shall be conclusive of
that fact as between Landlord and Tenant.


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ARTICLE 25



LATE CHARGES



     If any installment of Rent or any other sum due from Tenant shall not be
received by Landlord or Landlord’s designee within five (5) days after said
amount is due, then Tenant shall pay to Landlord a late charge equal to five
percent (5%) of the overdue amount plus any attorneys’ fees incurred by
Landlord by reason of Tenant’s failure to pay Rent and/or other charges when
due hereunder. The late charge shall be deemed Additional Rent and the right
to require it shall be in addition to all of Landlord’s other rights and
remedies hereunder or at law and shall not be construed as liquidated damages
or as limiting Landlord’s remedies in any manner. In addition to the late
charge described above, any Rent or other amounts owing hereunder which are not
paid within ten (10) days after the date they are due shall bear interest from
the date when due until paid at a rate per annum equal to the lesser of (i) the
annual “Bank Prime Loan” rate cited in the Federal Reserve Statistical Release
Publication G.13(415), published on the first Tuesday of each calendar month
(or such other comparable index as Landlord and Tenant shall reasonably agree
upon if such rate ceases to be published) plus four (4) percentage points, and
(ii) the highest rate permitted by applicable law.


ARTICLE 26



LANDLORD’S RIGHT TO CURE DEFAULT; PAYMENTS BY TENANT



     26.1 Landlord’s Cure. All covenants and agreements to be kept or
performed by Tenant under this Lease shall be performed by Tenant at Tenant’s
sole cost and expense and without any reduction of Rent, except to the extent,
if any, otherwise expressly provided herein. If Tenant shall fail to perform
any obligation under this Lease, and such failure shall continue in excess of
the time allowed under Section 19.1.2, above, unless a specific time period is
otherwise stated in this Lease, Landlord may, but shall not be obligated to,
make any such payment or perform any such act on Tenant’s part without waiving
its rights based upon any default of Tenant and without releasing Tenant from
any obligations hereunder.


     26.2 Tenant’s Reimbursement. Except as may be specifically provided to
the contrary in this Lease, Tenant shall pay to Landlord, upon delivery by
Landlord to Tenant of statements therefor: (i) sums equal to expenditures
reasonably made and obligations incurred by Landlord in connection with the
remedying by Landlord of Tenant’s defaults pursuant to the provisions of
Section 26.1; (ii) sums equal to all losses, costs, liabilities, damages and
expenses referred to in Article 10 of this Lease; and (iii) sums equal to all
expenditures made and obligations incurred by Landlord in collecting or
attempting to collect the Rent or in enforcing or attempting to enforce any
rights of Landlord under this Lease or pursuant to law, including, without
limitation, all legal fees and other amounts so expended. Tenant’s obligations
under this Section 26.2 shall survive the expiration or sooner termination of
the Lease Term.


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ARTICLE 27



ENTRY BY LANDLORD



     Landlord reserves the right at all reasonable times and upon reasonable
notice to Tenant (except in the case of an emergency) to enter the Premises to
(i) inspect them; (ii) show the Premises to prospective purchasers, or
mortgagees or to current or prospective mortgagees, ground or underlying
lessors or insurers, or, during the last twelve (12) months of the Lease Term,
to prospective tenants; (iii) post notices of nonresponsibility; or (iv) alter,
improve or repair the Premises or the Building, or for structural alterations,
repairs or improvements to the Building or the Building’s systems and
equipment. Notwithstanding anything to the contrary contained in this Article
27, Landlord may enter the Premises at any time to (A) perform services
required of Landlord, including janitorial service; (B) take possession due to
any breach of this Lease in the manner provided herein; and (C) perform any
covenants of Tenant which Tenant fails to perform. Landlord may make any such
entries without the abatement of Rent and may take such reasonable steps as
required to accomplish the stated purposes. Tenant hereby waives any claims
for damages or for any injuries or inconvenience to or interference with
Tenant’s business, lost profits, any loss of occupancy or quiet enjoyment of
the Premises, and any other loss occasioned thereby. For each of the above
purposes, Landlord shall at all times have a key with which to unlock all the
doors in the Premises, excluding Tenant’s vaults, safes and special security
areas designated in advance by Tenant. In an emergency, Landlord shall have
the right to use any means that Landlord may deem proper to open the doors in
and to the Premises. Any entry into the Premises by Landlord in the manner
hereinbefore described shall not be deemed to be a forcible or unlawful entry
into, or a detainer of, the Premises, or an actual or constructive eviction of
Tenant from any portion of the Premises. No provision of this Lease shall be
construed as obligating Landlord to perform any repairs, alterations or
decorations except as otherwise expressly agreed to be performed by Landlord
herein.


ARTICLE 28



TENANT PARKING



     28.1 Tenant Parking Passes. Tenant shall be permitted to use, without
charge, throughout the Lease Term, the number of parking passes set forth in
Section 9 of the Summary, which passes shall relate to the Project’s parking
facilities. Tenant’s continued right to use the parking passes is conditioned
upon Tenant abiding by all rules and regulations which are prescribed from time
to time for the orderly operation and use of the parking facility by Tenant,
including any sticker or other identification system established by Landlord,
Tenant’s cooperation in seeing that Tenant’s employees and visitors also comply
with such rules and regulations and Tenant not being in default under this
Lease.


     28.2 Other Terms. Landlord specifically reserves the right to change the
size, configuration, design, layout and all other aspects of the Project
parking facility at any time and Tenant acknowledges and agrees that Landlord
may, without incurring any liability to Tenant and without any abatement of
Rent under this Lease, from time to time, close-off or restrict access to the
Project parking facility for purposes of permitting or facilitating any such
construction, alteration or improvements. Landlord may delegate its
responsibilities hereunder


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to a parking operator in which case such parking
operator shall have all the rights of control attributed hereby to the
Landlord. Any parking passes provided to Tenant pursuant to this Article 28
are provided to Tenant solely for use by Tenant’s own personnel and such passes
may not be transferred, assigned, subleased or otherwise alienated by Tenant
without Landlord’s prior approval.


     28.3 Parking Procedures. The parking passes initially will not be
separately identified; however Landlord reserves the right in its sole and
absolute discretion to separately identify by signs or other markings the area
to which Tenant’s parking passes relate. Landlord shall have no obligation to
monitor the use of such parking facility, nor shall Landlord be responsible for
any loss or damage to any vehicle or other property or for any injury to any
person. Tenant’s parking passes shall be used only for parking of automobiles
no larger than full size passenger automobiles, sport utility vehicles or
pick-up trucks. Tenant shall comply with all rules and regulations which may
be adopted by Landlord from time to time with respect to parking and/or the
parking facilities servicing the Project. Tenant shall not at any time use
more parking passes than the number so allocated to Tenant or park its vehicles
or the vehicles of others in any portion of the Project parking facility not
designated by Landlord. Tenant shall not have the exclusive right to use any
specific parking space. All trucks (other than pick-up trucks) and delivery
vehicles shall be (i) parked at the loading dock of the Building, (ii) loaded
and unloaded in a commercially reasonable manner, and (iii) permitted to remain
on the Project only so long as is reasonably necessary to complete loading and
unloading. In the event Landlord elects in its sole and absolute discretion or
is required by any law to limit or control parking, whether by validation of
parking tickets or any other method of assessment, Tenant agrees to participate
in such validation or assessment program under such reasonable rules and
regulations as are from time to time established by Landlord.


ARTICLE 29



MISCELLANEOUS PROVISIONS



     29.1 Terms; Captions. The words “Landlord” and “Tenant” as used herein
shall include the plural as well as the singular. The necessary grammatical
changes required to make the provisions hereof apply either to corporations or
partnerships or individuals, men or women, as the case may require, shall in
all cases be assumed as though in each case fully expressed. The captions of
Articles and Sections are for convenience only and shall not be deemed to
limit, construe, affect or alter the meaning of such Articles and Sections.


     29.2 Binding Effect. Subject to all other provisions of this Lease, each
of the covenants, conditions and provisions of this Lease shall extend to and
shall, as the case may require, bind or inure to the benefit not only of
Landlord and of Tenant, but also of their respective heirs, personal
representatives, successors or assigns, provided this clause shall not permit
any assignment by Tenant contrary to the provisions of Article 14 of this
Lease.


     29.3 No Air Rights. No rights to any view or to light or air over any
property, whether belonging to Landlord or any other person, are granted to
Tenant by this Lease. If at any time any windows of the Premises are
temporarily darkened or the light or view therefrom is obstructed by reason of
any repairs, improvements, maintenance or cleaning in or about the


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Project, the
same shall be without liability to Landlord and without any reduction or
diminution of Tenant’s obligations under this Lease.


     29.4 Modification of Lease. Should any current or prospective mortgagee
or ground lessor for the Building or Project require a modification of this
Lease, which modification will not cause an increased cost or expense to Tenant
or in any other way materially and adversely change the rights and obligations
of Tenant hereunder, then and in such event, Tenant agrees that this Lease may
be so modified and agrees to execute whatever documents are reasonably required
therefor and to deliver the same to Landlord within ten (10) days following a
request therefor. At the request of Landlord or any mortgagee or ground
lessor, Tenant agrees to execute a short form of Lease and deliver the same to
Landlord within ten (10) days following the request therefor.


     29.5 Transfer of Landlord’s Interest. Tenant acknowledges that Landlord
has the right to transfer all or any portion of its interest in the Project or
Building and in this Lease, and Tenant agrees that in the event of any such
transfer, Landlord shall automatically be released from all liability under
this Lease and Tenant agrees to look solely to such transferee for the
performance of Landlord’s obligations hereunder after the date of transfer and
such transferee shall be deemed to have fully assumed and be liable for all
obligations of this Lease to be performed by Landlord, including the return of
any Security Deposit, and Tenant shall attorn to such transferee. Tenant
further acknowledges that Landlord may assign its interest in this Lease to a
mortgage lender as additional security and agrees that such an assignment shall
not release Landlord from its obligations hereunder and that Tenant shall
continue to look to Landlord for the performance of its obligations hereunder.


     29.6 Prohibition Against Recording. Except as provided in Section 29.4 of
this Lease, neither this Lease, nor any affidavit or other writing with respect
thereto, shall be recorded by Tenant or by anyone acting through, under or on
behalf of Tenant, provided, Tenant may record a memorandum of this Lease,
provided on the expiration or earlier termination of this Lease Tenant shall
deliver to Landlord any documentation required to remove such memorandum from
record.


     29.7 Landlord’s Title. Landlords title is and always shall be paramount
to the title of Tenant. Nothing herein contained shall empower Tenant to do
any act which can, shall or may encumber the title of Landlord.


     29.8 Relationship of Parties. Nothing contained in this Lease shall be
deemed or construed by the parties hereto or by any third party to create the
relationship of principal and agent, partnership, joint venturer or any
association between Landlord and Tenant.


     29.9 Application of Payments. Landlord shall have the right to apply
payments received from Tenant pursuant to this Lease, regardless of Tenant’s
designation of such payments, to satisfy any obligations of Tenant hereunder,
in such order and amounts as Landlord, in its sole discretion, may elect.


     29.10 Time of Essence. Time is of the essence with respect to the
performance of every provision of this Lease in which time of performance is a
factor.


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     29.11 Partial Invalidity. If any term, provision or condition contained
in this Lease shall, to any extent, be invalid or unenforceable, the remainder
of this Lease, or the application of such term, provision or condition to
persons or circumstances other than those with respect to which it is invalid
or unenforceable, shall not be affected thereby, and each and every other term,
provision and condition of this Lease shall be valid and enforceable to the
fullest extent possible permitted by law.


     29.12 No Warranty. In executing and delivering this Lease, Tenant has not
relied on any representations, including, but not limited to, any
representation as to the amount of any item comprising Additional Rent or the
amount of the Additional Rent in the aggregate or that Landlord is furnishing
the same services to other tenants, at all, on the same level or on the same
basis, or any warranty or any statement of Landlord which is not set forth
herein or in one or more of the exhibits attached hereto.


     29.13 Landlord Exculpation. The liability of Landlord or the Landlord
Parties to Tenant for any default by Landlord under this Lease or arising in
connection herewith or with Landlord’s operation, management, leasing, repair,
renovation, alteration or any other matter relating to the Project or the
Premises shall be limited solely and exclusively to an amount which is equal to
the lesser of (a) the interest of Landlord in the Building or (b) the equity
interest Landlord would have in the Building if the Building were encumbered by
third-party debt in an amount equal to eighty percent (80%) of the value of the
Building (as such value is determined by Landlord), provided that in no event
shall such liability extend to any sales or insurance proceeds received by
Landlord or the Landlord Parties in connection with the Project, Building or
Premises. Neither Landlord, nor any of the Landlord Parties shall have any
personal liability therefor, and Tenant hereby expressly waives and releases
such personal liability on behalf of itself and all persons claiming by,
through or under Tenant. The limitations of liability contained in this
Section 29.13 shall inure to the benefit of Landlord’s and the Landlord
Parties’ present and future partners, beneficiaries, officers, directors,
trustees, shareholders, agents and employees, and their respective partners,
heirs, successors and assigns. Under no circumstances shall any present or
future partner of Landlord (if Landlord is a partnership), or trustee or
beneficiary (if Landlord or any partner of Landlord is a trust), have any
liability for the performance of Landlord’s obligations under this Lease.
Notwithstanding any contrary provision herein, neither Landlord nor the
Landlord Parties shall be liable under any circumstances for injury or damage
to, or interference with, Tenant’s business, including but not limited to, loss
of profits, loss of rents or other revenues, loss of business opportunity, loss
of goodwill or loss of use, in each case, however occurring.


     29.14 Entire Agreement. It is understood and acknowledged that there are
no oral agreements between the parties hereto affecting this Lease and this
Lease constitutes the parties’ entire agreement with respect to the leasing of
the Premises and supersedes and cancels any and all previous negotiations,
arrangements, brochures, agreements and understandings, if any, between the
parties hereto or displayed by Landlord to Tenant with respect to the subject
matter thereof, and none thereof shall be used to interpret or construe this
Lease. None of the terms, covenants, conditions or provisions of this Lease
can be modified, deleted or added to except in writing signed by the parties
hereto.


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     29.15 Right to Lease. Landlord reserves the absolute right to effect such
other tenancies in the Project as Landlord in the exercise of its sole business
judgment shall determine to best promote the interests of the Building or
Project. Tenant does not rely on the fact, nor does Landlord represent, that
any specific tenant or type or number of tenants shall, during the Lease Term,
occupy any space in the Building or Project.


     29.16 Force Majeure. Any prevention, delay or stoppage due to strikes,
lockouts, labor disputes, acts of God, inability to obtain services, labor, or
materials or reasonable substitutes therefor, governmental actions, civil
commotions, fire or other casualty, and other causes beyond the reasonable
control of the party obligated to perform, except with respect to the
obligations imposed with regard to Rent and other charges to be paid by Tenant
pursuant to this Lease and except as to Tenant’s obligations under Articles 5
and 24 of this Lease (collectively, a “Force Majeure”), notwithstanding
anything to the contrary contained in this Lease, shall excuse the performance
of such party for a period equal to any such prevention, delay or stoppage and,
therefore, if this Lease specifies a time period for performance of an
obligation of either party, that time period shall be extended by the period of
any delay in such party’s performance caused by a Force Majeure.


     29.17 Waiver of Redemption by Tenant. Tenant hereby waives, for Tenant
and for all those claiming under Tenant, any and all rights now or hereafter
existing to redeem by order or judgment of any court or by any legal process or
writ, Tenant’s right of occupancy of the Premises after any termination of this
Lease.


     29.18 Notices. All notices, demands, statements, designations, approvals
or other communications (collectively, “Notices”) given or required to be given
by either party to the other hereunder or by law shall be in writing, shall be
(A) sent by United States certified or registered mail, postage prepaid, return
receipt requested (“Mail”), (B) transmitted by telecopy, if such telecopy is
promptly followed by a Notice sent by Mail, (C) delivered by a nationally
recognized overnight courier, or (D) delivered personally. Any Notice shall be
sent, transmitted, or delivered, as the case may be, to Tenant at the
appropriate address set forth in Section 10 of the Summary, or to such other
place as Tenant may from time to time designate in a Notice to Landlord, or to
Landlord at the addresses set forth below, or to such other places as Landlord
may from time to time designate in a Notice to Tenant. Any Notice will be
deemed given (i) three (3) days after the date it is posted if sent by Mail,
(ii) the date the telecopy is transmitted, (iii) the date the overnight courier
delivery is made, or (iv) the date personal delivery is made or attempted to be
made. If Tenant is notified of the identity and address of Landlord’s
mortgagee or ground or underlying lessor, Tenant shall give to such mortgagee
or ground or underlying lessor written notice of any default by Landlord under
the terms of this Lease by registered or certified mail, and such mortgagee or
ground or underlying lessor shall be given a reasonable opportunity to cure
such default prior to Tenant’s exercising any remedy available to Tenant. As
of the date of this Lease, any Notices to Landlord must be sent, transmitted,
or delivered, as the case may be, to the following addresses:



	 	Divco West Group, LLC

150 Spear Street

San Francisco, California 94105

Attention: Lesli Wang



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	 	and




	 	DivcoWest Group, LLC

150 Almaden Boulevard

Suite 700

San Jose, California 95113




	 	Attention: Asset Manager




	 	and




	 	Allen, Matkins, Leck, Gamble & Mallory

1999 Avenue of the Stars, Suite 1800

Los Angeles, California 90067

Attention: Anton N. Natsis, Esq.



     29.19 Joint and Several. If there is more than one Tenant, the
obligations imposed upon Tenant under this Lease shall be joint and several.


     29.20 Authority. If Tenant is a corporation, trust or partnership, each
individual executing this Lease on behalf of Tenant hereby represents and
warrants that Tenant is a duly formed and existing entity qualified to do
business in California and that Tenant has full right and authority to execute
and deliver this Lease and that each person signing on behalf of Tenant is
authorized to do so. In such event, Tenant shall, within ten (10) days after
execution of this Lease, deliver to Landlord satisfactory evidence of such
authority and, if a corporation, upon demand by Landlord, also deliver to
Landlord satisfactory evidence of (i) good standing in Tenant’s state of
incorporation and (ii) qualification to do business in California.


     29.21 Attorneys’ Fees. In the event that either Landlord or Tenant should
bring suit for the possession of the Premises, for the recovery of any sum due
under this Lease, or because of the breach of any provision of this Lease or
for any other relief against the other, then all costs and expenses, including
reasonable attorneys’ fees, incurred by the prevailing party therein shall be
paid by the other party, which obligation on the part of the other party shall
be deemed to have accrued on the date of the commencement of such action and
shall be enforceable whether or not the action is prosecuted to judgment.


     29.22 Governing Law; WAIVER OF TRIAL BY JURY. This Lease shall be
construed and enforced in accordance with the laws of the State of California.
IN ANY ACTION OR PROCEEDING ARISING HEREFROM, LANDLORD AND TENANT HEREBY
CONSENT TO (I) THE JURISDICTION OF ANY COMPETENT COURT WITHIN THE STATE OF
CALIFORNIA, (II) SERVICE OF PROCESS BY ANY MEANS AUTHORIZED BY CALIFORNIA LAW,
AND (III) IN THE INTEREST OF SAVING TIME AND EXPENSE, TRIAL WITHOUT A JURY IN
ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO
AGAINST THE OTHER OR THEIR SUCCESSORS IN RESPECT OF ANY MATTER ARISING OUT OF
OR IN CONNECTION WITH THIS LEASE, THE RELATIONSHIP OF LANDLORD AND TENANT,
TENANT’S USE OR OCCUPANCY OF THE PREMISES, AND/OR ANY CLAIM FOR INJURY OR
DAMAGE, OR ANY EMERGENCY OR STATUTORY REMEDY. IN THE EVENT


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LANDLORD COMMENCES
ANY SUMMARY PROCEEDINGS OR ACTION FOR NONPAYMENT OF BASE RENT OR ADDITIONAL
RENT, TENANT SHALL NOT INTERPOSE ANY COUNTERCLAIM OF ANY NATURE OR DESCRIPTION
(UNLESS SUCH COUNTERCLAIM SHALL BE MANDATORY) IN ANY SUCH PROCEEDING OR ACTION,
BUT SHALL BE RELEGATED TO AN INDEPENDENT ACTION AT LAW.


     29.23 Submission of Lease. Submission of this instrument for examination
or signature by Tenant does not constitute a reservation of, option for or
option to lease, and it is not effective as a lease or otherwise until
execution and delivery by both Landlord and Tenant.


     29.24 Brokers. Landlord and Tenant hereby warrant to each other that they
have had no dealings with any real estate broker or agent in connection with
the negotiation of this Lease, excepting only the real estate brokers or agents
specified in Section 12 of the Summary (the “Brokers”), and that they know of
no other real estate broker or agent who is entitled to a commission in
connection with this Lease. Each party agrees to indemnify and defend the
other party against and hold the other party harmless from any and all claims,
demands, losses, liabilities, lawsuits, judgments, costs and expenses
(including without limitation reasonable attorneys’ fees) with respect to any
leasing commission or equivalent compensation alleged to be owing on account of
any dealings with any real estate broker or agent, other than the Brokers,
occurring by, through, or under the indemnifying party.


     29.25 Independent Covenants. This Lease shall be construed as though the
covenants herein between Landlord and Tenant are independent and not dependent
and Tenant hereby expressly waives the benefit of any statute to the contrary
and agrees that if Landlord fails to perform its obligations set forth herein,
Tenant shall not be entitled to make any repairs or perform any acts hereunder
at Landlord’s expense or to any setoff of the Rent or other amounts owing
hereunder against Landlord.


     29.26 Project or Building Name and Signage. Landlord shall have the right
at any time to change the name of the Project or Building and to install, affix
and maintain any and all signs on the exterior and on the interior of the
Project or Building as Landlord may, in Landlord’s sole discretion, desire.
Tenant shall not use the name of the Project or Building or use pictures or
illustrations of the Project or Building in advertising or other publicity or
for any purpose other than as the address of the business to be conducted by
Tenant in the Premises, without the prior written consent of Landlord.


     29.27 Counterparts. This Lease may be executed in counterparts with the
same effect as if both parties hereto had executed the same document. Both
counterparts shall be construed together and shall constitute a single lease.


     29.28 Confidentiality. Tenant acknowledges that the content of this Lease
and any related documents are confidential information. Tenant shall keep such
confidential information strictly confidential and shall not disclose such
confidential information to any person or entity other than Tenant’s financial,
legal, and space planning consultants.


     29.29 Transportation Management. Tenant shall fully comply with all
present or future governmentally mandated programs intended to manage parking,
transportation or traffic


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in and around the Building, and in connection
therewith, Tenant shall take responsible action for the transportation planning
and management of all employees located at the Premises by working directly
with Landlord, any governmental transportation management organization or any
other transportation-related committees or entities.


     29.30 Building Renovations. It is specifically understood and agreed that
Landlord has made no representation or warranty to Tenant and has no obligation
and has made no promises to alter, remodel, improve, renovate, repair or
decorate the Premises, Building, or any part thereof and that no
representations respecting the condition of the Premises or the Building have
been made by Landlord to Tenant except as specifically set forth herein.
However, Tenant hereby acknowledges that Landlord is currently renovating or
may during the Lease Term renovate, improve, alter, or modify (collectively,
the “Renovations”) the Project, the Building and/or the Premises including
without limitation the parking structure, common areas, systems and equipment,
roof, and structural portions of the same, which Renovations may include,
without limitation, (i) installing sprinklers in the Building common areas and
tenant spaces, (ii) modifying the common areas and tenant spaces to comply with
applicable laws and regulations, including regulations relating to the
physically disabled, seismic conditions, and building safety and security, and
(iii) installing new floor covering, lighting, and wall coverings in the
Building common areas, and in connection with any Renovations, Landlord may,
among other things, erect scaffolding or other necessary structures in the
Building, limit or eliminate access to portions of the Project, including
portions of the common areas, or perform work in the Building, which work may
create noise, dust or leave debris in the Building. Tenant hereby agrees that
such Renovations and Landlord’s actions in connection with such Renovations
shall in no way constitute a constructive eviction of Tenant nor entitle Tenant
to any abatement of Rent. Landlord shall have no responsibility or for any
reason be liable to Tenant for any direct or indirect injury to or interference
with Tenant’s business arising from the Renovations, nor shall Tenant be
entitled to any compensation or damages from Landlord for loss of the use of
the whole or any part of the Premises or of Tenant’s personal property or
improvements resulting from the Renovations or Landlord’s actions in connection
with such Renovations, or for any inconvenience or annoyance occasioned by such
Renovations or Landlord’s actions.


     29.31 No Violation. Tenant hereby warrants and represents that neither
its execution of nor performance under this Lease shall cause Tenant to be in
violation of any agreement, instrument, contract, law, rule or regulation by
which Tenant is bound, and Tenant shall protect, defend, indemnify and hold
Landlord harmless against any claims, demands, losses, damages, liabilities,
costs and expenses, including, without limitation, reasonable attorneys’ fees
and costs, arising from Tenant’s breach of this warranty and representation.


     29.32 Communications and Computer Lines. Tenant may install, maintain,
replace, remove or use any communications or computer wires and cables
(collectively, the “Lines”) at the Project in or serving the Premises, provided
that (i) Tenant shall obtain Landlord’s prior written consent, use an
experienced and qualified contractor approved in writing by Landlord, and
comply with all of the other provisions of Articles 7 and 8 of this Lease, (ii)
an acceptable number of spare Lines and space for additional Lines shall be
maintained for existing and future occupants of the Project, as determined in
Landlord’s reasonable opinion, (iii) the Lines therefor (including riser
cables) shall be appropriately insulated to prevent excessive electromagnetic
fields or radiation, and shall be surrounded by a protective conduit reasonably
acceptable to


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Landlord, (iv) any new or existing Lines servicing the Premises
shall comply with all applicable governmental laws and regulations, (v) as a
condition to permitting the installation of new Lines, Landlord may require
that Tenant remove existing Lines located in or serving the Premises and repair
any damage in connection with such removal, and (vi) Tenant shall pay all costs
in connection therewith. Landlord reserves the right to require that Tenant
remove any Lines located in or serving the Premises which are installed in
violation of these provisions, or which are at any time in violation of any
laws or represent a dangerous or potentially dangerous condition.


     29.33 Development of the Project.


           29.33.1 Subdivision. Landlord reserves the right to further subdivide all
or a portion of the Project. Tenant agrees to execute and deliver, upon demand
by Landlord and in the form requested by Landlord, any additional documents
needed to conform this Lease to the circumstances resulting from such
subdivision.


           29.33.2 The Other Improvements. If portions of the Project or property
adjacent to the Project (collectively, the “Other Improvements”) are owned by
an entity other than Landlord, Landlord, at its option, may enter into an
agreement with the owner or owners of any or all of the Other Improvements to
provide (i) for reciprocal rights of access and/or use of the Project and the
Other Improvements, (ii) for the common management, operation, maintenance,
improvement and/or repair of all or any portion of the Project and the Other
Improvements, (iii) for the allocation of a portion of the Direct Expenses to
the Other Improvements and the operating expenses and taxes for the Other
Improvements to the Project, and (iv) for the use or improvement of the Other
Improvements and/or the Project in connection with the improvement,
construction, and/or excavation of the Other Improvements and/or the Project,
provided no such action results in an increase in Tenant’s rental obligations
under this Lease. Nothing contained herein shall be deemed or construed to
limit or otherwise affect Landlord’s right to convey all or any portion of the
Project or any other of Landlord’s rights described in this Lease.


           29.33.3 Construction of Project and Other Improvements. Tenant
acknowledges that portions of the Project and/or the Other Improvements may be
under construction following Tenant’s occupancy of the Premises, and that such
construction may result in levels of noise, dust, obstruction of access, etc.
which are in excess of that present in a fully constructed project. Tenant
hereby waives any and all rent offsets or claims of constructive eviction which
may arise in connection with such construction.


     29.34 Office and Communications Services.


           29.34.1 The Provider. Landlord has advised Tenant that certain office and
communications services may be offered at the Project by a concessionaire under
contract to Landlord (“Provider”). Tenant shall be permitted to contract with
Provider for the provision of any or all of such services on such terms and
conditions as Tenant and Provider may agree.


           29.34.2 Other Terms. Tenant acknowledges and agrees that: (i) Landlord
has made no warranty or representation to Tenant with respect to the
availability of any such


-48-






 


services, or the quality, reliability or suitability
thereof; (ii) the Provider is not acting as the agent or representative of
Landlord in the provision of such services, and Landlord shall have no
liability or responsibility for any failure or inadequacy of such services, or
any equipment or facilities used in the furnishing thereof, or any act or
omission of Provider, or its agents, employees, representatives, officers or
contractors; (iii) Landlord shall have no responsibility or liability for the
installation, alteration, repair, maintenance, furnishing, operation,
adjustment or removal of any such services, equipment or facilities; and (iv)
any contract or other agreement between Tenant and Provider shall be
independent of this Lease, the obligations of Tenant hereunder, and the rights
of Landlord hereunder, and, without limiting the foregoing, no default or
failure of Provider with respect to any such services, equipment or facilities,
or under any contract or agreement relating thereto, shall have any effect on
this Lease or give to Tenant any offset or defense to the full and timely
performance of its obligations hereunder, or entitle Tenant to any abatement of
rent or additional rent or any other payment required to be made by Tenant
hereunder, or constitute any accrual or constructive eviction of Tenant, or
otherwise give rise to any other claim of any nature against Landlord.


     IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be
executed the day and date first above written.



	 	 	 
	 	 	
“Landlord”:
	 
	 	 	
SAN TOMAS PROPERTIES, LLC,

a Delaware limited liability company
	 
	 	 	
By:  DivcoWest Group, LLC,

a Delaware limited liability company
	 
	 	 	
Its:  Agent
	 
	 	 	
By: /s/ Scott L.S.



	 
	 	 	
Name: Scott L.S.



	 
	 	 	
Its:



	 
	 	 	
“Tenant”:
	 
	 	 	
AKAMAI TECHNOLOGIES, INC.,

a Delaware corporation
	 
	 	 	
By: /s/ Paul Sagan



	 
	 	 	
Name: Paul Sagan



	 
	 	 	
Its: President & CEO



	 
	 	 	
By: /s/ Kathryn L. Jorden




	 
	 	 	
Name: Kathryn L. Jorden




Its: General Counsel & Secretary






-49-






 



EXHIBIT A



SAN TOMAS BUSINESS PARK



OUTLINE OF INITIAL PREMISES



2800 San Tomas Expressway



(Plans Not Exact)



(First Floor Plan)


(Second Floor Plan)




EXHIBIT A


-1-






 




EXHIBIT A



SAN TOMAS BUSINESS PARK



OUTLINE OF INITIAL PREMISES



2860 San Tomas Expressway



(Plans Not Exact)



(First Floor Plan)


(Second Floor Plan)




EXHIBIT A



-2-






 



EXHIBIT A-1



OUTLINE OF ADDITIONAL PREMISES



2800 San Tomas Expressway



(Plans Not Exact)



(First Floor Plan)


(Second Floor Plan)



EXHIBIT A-1



-1-






 



EXHIBIT B



SAN TOMAS BUSINESS PARK

INTENTIONALLY OMITTED



EXHIBIT B



-1-






 



EXHIBIT C



SAN TOMAS BUSINESS PARK

NOTICE OF LEASE TERM DATES



To:




 



 



 





	Re:	 	 	Office Lease dated
               ,
20         between
               , a
        (“Landlord”),
and              , a
              (“Tenant”) concerning the buildings located
at
             , Santa Clara, California.



Gentlemen:


     In accordance with the Office Lease (the “Lease”), we wish to advise you
and/or confirm as follows:



	 	1.	 	The Lease Term shall commence
on or has commenced on
                   
for a term of            ending on
          .
	 
	 	2.	 	Rent commenced to accrue on
          , in the amount of
          .
	 
	 	3.	 	If the Lease Commencement Date is other than the first day of
the month, the first billing will contain a pro rata adjustment.
Each billing thereafter, with the exception of the final billing,
shall be for the full amount of the monthly installment as provided
for in the Lease.
	 
	 	4.	 	Your rent checks should be made payable to
               
at                .
	 
	 	5.	 	



	 	 	 
	 	 	
“Landlord”:
	 
	 	 	




	 
	 	 	
a 



	 
	 	 	
By:



	 
	 	 	
Its:



	 
	 	 	


Name:




Its:









Agreed to and Accepted

as of             
   , 20     .


“Tenant”:






a





     





EXHIBIT C

-1-






 





By:                  
                
          


Its:                  
                
          



EXHIBIT C


-2-






 


EXHIBIT D



SAN TOMAS BUSINESS PARK



RULES AND REGULATIONS



     Tenant shall faithfully observe and comply with the following Rules and
Regulations. Landlord shall not be responsible to Tenant for the
nonperformance of any of said Rules and Regulations by or otherwise with
respect to the acts or omissions of any other tenants or occupants of the
Project. In the event of any conflict between the Rules and Regulations and
the other provisions of this Lease, the latter shall control.


     1.     Tenant shall not alter any lock or install any new or additional locks
or bolts on any doors or windows of the Premises without obtaining Landlord’s
prior written consent. Tenant shall bear the cost of any lock changes or
repairs required by Tenant. Two keys will be furnished by Landlord for the
Premises, and any additional keys required by Tenant must be obtained from
Landlord at a reasonable cost to be established by Landlord. Upon the
termination of this Lease, Tenant shall restore to Landlord all keys of stores,
offices, and toilet rooms, either furnished to, or otherwise procured by,
Tenant and in the event of the loss of keys so furnished, Tenant shall pay to
Landlord the cost of replacing same or of changing the lock or locks opened by
such lost key if Landlord shall deem it necessary to make such changes.


     2.     All doors opening to public corridors shall be kept closed at all times
except for normal ingress and egress to the Premises.


     3.     Landlord reserves the right to close and keep locked all entrance and
exit doors of the Building during such hours as are customary for comparable
buildings in the Santa Clara, California area. Tenant, its employees and
agents must be sure that the doors to the Building are securely closed and
locked when leaving the Premises if it is after the normal hours of business
for the Building. Any tenant, its employees, agents or any other persons
entering or leaving the Building at any time when it is so locked, or any time
when it is considered to be after normal business hours for the Building, may
be required to sign the Building register. Access to the Building may be
refused unless the person seeking access has proper identification or has a
previously arranged pass for access to the Building. Landlord will furnish
passes to persons for whom Tenant requests same in writing. Tenant shall be
responsible for all persons for whom Tenant requests passes and shall be liable
to Landlord for all acts of such persons. The Landlord and his agents shall in
no case be liable for damages for any error with regard to the admission to or
exclusion from the Building of any person. In case of invasion, mob, riot,
public excitement, or other commotion, Landlord reserves the right to prevent
access to the Building or the Project during the continuance thereof by any
means it deems appropriate for the safety and protection of life and property.


     4.     No furniture, freight or equipment of any kind shall be brought into
the Building without prior notice to Landlord. All moving activity into or out
of the Building shall be scheduled with Landlord and done only at such time and
in such manner as Landlord designates. Landlord shall have the right to
prescribe the weight, size and position of all safes and other heavy property
brought into the Building and also the times and manner of moving the same in


EXHIBIT D



-1-






 





and out of the Building. Safes and other heavy objects shall, if considered
necessary by Landlord, stand on supports of such thickness as is necessary to
properly distribute the weight. Landlord will not be responsible for loss of
or damage to any such safe or property in any case. Any damage to any part of
the Building, its contents, occupants or visitors by moving or maintaining any
such safe or other property shall be the sole responsibility and expense of
Tenant.


     5.     The requirements of Tenant will be attended to only upon application at
the management office for the Project or at such office location designated by
Landlord. Employees of Landlord shall not perform any work or do anything
outside their regular duties unless under special instructions from Landlord.


     6.     No sign, advertisement, notice or handbill shall be exhibited,
distributed, painted or affixed by Tenant on any part of the Premises or the
Building without the prior written consent of the Landlord. Tenant shall not
disturb, solicit, peddle, or canvass any occupant of the Project and shall
cooperate with Landlord and its agents of Landlord to prevent same.


     7.     The toilet rooms, urinals, wash bowls and other apparatus shall not be
used for any purpose other than that for which they were constructed, and no
foreign substance of any kind whatsoever shall be thrown therein. The expense
of any breakage, stoppage or damage resulting from the violation of this rule
shall be borne by the tenant who, or whose servants, employees, agents,
visitors or licensees shall have caused same.


     8.     Tenant shall not overload the floor of the Premises, nor mark, drive
nails or screws, or drill into the partitions, woodwork or drywall or in any
way deface the Premises or any part thereof without Landlord’s prior written
consent. Tenant shall not purchase spring water, ice, towel, linen,
maintenance or other like services from any person or persons not approved by
Landlord.


     9.     Except for vending machines intended for the sole use of Tenant’s
employees and invitees, no vending machine or machines other than fractional
horsepower office machines shall be installed, maintained or operated upon the
Premises without the written consent of Landlord.


     10.     Tenant shall not use or keep in or on the Premises, the Building, or
the Project any kerosene, gasoline, explosive material, corrosive material,
material capable of emitting toxic fumes, or other inflammable or combustible
fluid chemical, substitute or material. Tenant shall provide material safety
data sheets for any Hazardous Material used or kept on the Premises.


     11.     Tenant shall not without the prior written consent of Landlord use any
method of heating or air conditioning other than that supplied by Landlord.


     12.     Tenant shall not use, keep or permit to be used or kept, any foul or
noxious gas or substance in or on the Premises, or permit or allow the Premises
to be occupied or used in a manner offensive or objectionable to Landlord or
other occupants of the Project by reason of noise, odors, or vibrations, or
interfere with other tenants or those having business therein, whether by the
use of any musical instrument, radio, phonograph, or in any other way. Tenant
shall not throw anything out of doors, windows or skylights or down
passageways.



EXHIBIT D



-2-






 




     13.     Tenant shall not bring into or keep within the Project, the Building
or the Premises any animals, birds, aquariums, or, except in areas designated
by Landlord, bicycles or other vehicles.


     14.     No cooking shall be done or permitted on the Premises, nor shall the
Premises be used for the storage of merchandise, for lodging or for any
improper, objectionable or immoral purposes. Notwithstanding the foregoing,
Underwriters’ laboratory-approved equipment and microwave ovens may be used in
the Premises for heating food and brewing coffee, tea, hot chocolate and
similar beverages for employees and visitors, provided that such use is in
accordance with all applicable federal, state, county and city laws, codes,
ordinances, rules and regulations.


     15.     The Premises shall not be used for manufacturing or for the storage of
merchandise except as such storage may be incidental to the use of the Premises
provided for in the Summary. Tenant shall not occupy or permit any portion of
the Premises to be occupied as an office for a messenger-type operation or
dispatch office, public stenographer or typist, or for the manufacture or sale
of liquor, narcotics, or tobacco in any form, or as a medical office, or as a
barber or manicure shop, or as an employment bureau without the express prior
written consent of Landlord. Tenant shall not engage or pay any employees on
the Premises except those actually working for such tenant on the Premises nor
advertise for laborers giving an address at the Premises.


     16.     Landlord reserves the right to exclude or expel from the Project any
person who, in the judgment of Landlord, is intoxicated or under the influence
of liquor or drugs, or who shall in any manner do any act in violation of any
of these Rules and Regulations.


     17.     Tenant, its employees and agents shall not loiter in or on the
entrances, corridors, sidewalks, lobbies, courts, halls, stairways, elevators,
vestibules or any Common Areas for the purpose of smoking tobacco products or
for any other purpose, nor in any way obstruct such areas, and shall use them
only as a means of ingress and egress for the Premises.


     18.     Tenant shall not waste electricity, water or air conditioning and
agrees to cooperate fully with Landlord to ensure the most effective operation
of the Building’s heating and air conditioning system, and shall refrain from
attempting to adjust any controls. Tenant shall participate in recycling
programs undertaken by Landlord.


     19.     Tenant shall store all its trash and garbage within the interior of
the Premises. No material shall be placed in the trash boxes or receptacles if
such material is of such nature that it may not be disposed of in the ordinary
and customary manner of removing and disposing of trash and garbage in San
Jose, California without violation of any law or ordinance governing such
disposal. All trash, garbage and refuse disposal shall be made only through
entry-ways and elevators provided for such purposes at such times as Landlord
shall designate. If the Premises is or becomes infested with vermin as a
result of the use or any misuse or neglect of the Premises by Tenant, its
agents, servants, employees, contractors, visitors or licensees, Tenant shall
forthwith, at Tenant’s expense, cause the Premises to be exterminated from time
to time to the satisfaction of Landlord and shall employ such licensed
exterminators as shall be approved in writing in advance by Landlord.



EXHIBIT D



-3-






 




     20.     Tenant shall comply with all safety, fire protection and evacuation
procedures and regulations established by Landlord or any governmental agency.


     21.     Any persons employed by Tenant to do janitorial work shall be subject
to the prior written approval of Landlord, and while in the Building and
outside of the Premises, shall be subject to and under the control and
direction of the Building manager (but not as an agent or servant of such
manager or of Landlord), and Tenant shall be responsible for all acts of such
persons.


     22.     No awnings or other projection shall be attached to the outside walls
of the Building without the prior written consent of Landlord, and no curtains,
blinds, shades or screens shall be attached to or hung in, or used in
connection with, any window or door of the Premises other than Landlord
standard drapes. All electrical ceiling fixtures hung in the Premises or
spaces along the perimeter of the Building must be fluorescent and/or of a
quality, type, design and a warm white bulb color approved in advance in
writing by Landlord. Neither the interior nor exterior of any windows shall be
coated or otherwise sunscreened without the prior written consent of Landlord.
Tenant shall be responsible for any damage to the window film on the exterior
windows of the Premises and shall promptly repair any such damage at Tenant’s
sole cost and expense. Tenant shall keep its window coverings closed during
any period of the day when the sun is shining directly on the windows of the
Premises. Prior to leaving the Premises for the day, Tenant shall draw or
lower window coverings and extinguish all lights. Tenant shall abide by
Landlord’s regulations concerning the opening and closing of window coverings
which are attached to the windows in the Premises, if any, which have a view of
any interior portion of the Building or Building Common Areas.


     23.     The sashes, sash doors, skylights, windows, and doors that reflect or
admit light and air into the halls, passageways or other public places in the
Building shall not be covered or obstructed by Tenant, nor shall any bottles,
parcels or other articles be placed on the windowsills.


     24.     Tenant must comply with requests by the Landlord concerning the
informing of their employees of items of importance to the Landlord.


     25.     Tenant must comply with all applicable “NO-SMOKING” or similar
ordinances. If Tenant is required under the ordinance to adopt a written
smoking policy, a copy of said policy shall be on file in the office of the
Building.


     26.     Tenant hereby acknowledges that Landlord shall have no obligation to
provide guard service or other security measures for the benefit of the
Premises, the Building or the Project. Tenant hereby assumes all
responsibility for the protection of Tenant and its agents, employees,
contractors, invitees and guests, and the property thereof, from acts of third
parties, including keeping doors locked and other means of entry to the
Premises closed, whether or not Landlord, at its option, elects to provide
security protection for the Project or any portion thereof. Tenant further
assumes the risk that any safety and security devices, services and programs
which Landlord elects, in its sole discretion, to provide may not be effective,
or may malfunction or be circumvented by an unauthorized third party, and
Tenant shall, in addition to its other insurance obligations under this Lease,
obtain its own insurance coverage to the extent Tenant


EXHIBIT D


-4-






 


desires protection
against losses related to such occurrences. Tenant shall cooperate in any
reasonable safety or security program developed by Landlord or required by law.


     27.     All office equipment of any electrical or mechanical nature shall be
placed by Tenant in the Premises in settings approved by Landlord, to absorb or
prevent any vibration, noise and annoyance.


     28.     Tenant shall not use in any space or in the public halls of the
Building, any hand trucks except those equipped with rubber tires and rubber
side guards.


     29.     No auction, liquidation, fire sale, going-out-of-business or
bankruptcy sale shall be conducted in the Premises without the prior written
consent of Landlord.


     30.     No tenant shall use or permit the use of any portion of the Premises
for living quarters, sleeping apartments or lodging rooms.


     31.     Tenant shall not purchase spring water, towels, janitorial or
maintenance or other similar services from any company or persons not approved
by Landlord. Landlord shall approve a sufficient number of sources of such
services to provide Tenant with a reasonable selection, but only in such
instances and to such extent as Landlord in its judgment shall consider
consistent with the security and proper operation of the Building.


     32.     Tenant shall install and maintain, at Tenant’s sole cost and expense,
an adequate, visibly marked and properly operational fire extinguisher next to
any duplicating or photocopying machines or similar heat producing equipment,
which may or may not contain combustible material, in the Premises.


     Landlord reserves the right at any time to change or rescind any one or
more of these Rules and Regulations, or to make such other and further
reasonable Rules and Regulations as in Landlord’s judgment may from time to
time be necessary for the management, safety, care and cleanliness of the
Premises, Building, the Common Areas and the Project, and for the preservation
of good order therein, as well as for the convenience of other occupants and
tenants therein. Landlord may waive any one or more of these Rules and
Regulations for the benefit of any particular tenants, but no such waiver by
Landlord shall be construed as a waiver of such Rules and Regulations in favor
of any other tenant, nor prevent Landlord from thereafter enforcing any such
Rules or Regulations against any or all tenants of the Project. Tenant shall
be deemed to have read these Rules and Regulations and to have agreed to abide
by them as a condition of its occupancy of the Premises.


EXHIBIT D


-5-






 




EXHIBIT E



SAN TOMAS BUSINESS PARK



FORM OF TENANT’S ESTOPPEL CERTIFICATE



     The undersigned as Tenant under that certain Office Lease (the “Lease”)
made and entered into as of
          ,
20      by and between
           as Landlord, and the undersigned as Tenant, for Premises on
the
          
floor(s) of the office building located at
          ,
Santa Clara, California
          , certifies as follows:


     1.     Attached hereto as Exhibit A is a true and correct copy of the Lease
and all amendments and modifications thereto. The documents contained in
Exhibit A represent the entire agreement between the parties as to the
Premises.


     2.     The undersigned currently occupies the Premises described in the Lease,
the Lease Term commenced on
          ,
and the Lease Term expires on
          ,
and the undersigned has no option to terminate or cancel the Lease or to
purchase all or any part of the Premises, the Building and/or the Project.


     3.     Base
Rent became payable on                .


     4.     The Lease is in full force and effect and has not been modified,
supplemented or amended in any way except as provided in Exhibit A.


     5.     Tenant has not transferred, assigned, or sublet any portion of the
Premises nor entered into any license or concession agreements with respect
thereto except as follows:


     6.     Tenant shall not modify the documents contained in Exhibit A without
the prior written consent of Landlord’s mortgagee.


     7.     All monthly installments of Base Rent, all Additional Rent and all
monthly installments of estimated Additional Rent have been paid when due
through
               . The current monthly installment of Base Rent is
$          .


     8.     To the best of Tenant’s knowledge, except as set forth on Exhibit B
attached hereto, if any, all conditions of the Lease to be performed by
Landlord necessary to the enforceability of the Lease have been satisfied and
Landlord is not in default thereunder. In addition, the undersigned has not
delivered any notice to Landlord regarding a default by Landlord thereunder.


     9.     No rental has been paid more than thirty (30) days in advance and no
security has been deposited with Landlord except as provided in the Lease.


     10.     To the best of Tenant’s knowledge, except as set forth on Exhibit B
attached hereto, if any, as of the date hereof, there are no existing defenses
or offsets, or, to the undersigned’s knowledge, claims or any basis for a
claim, that the undersigned has against Landlord.


EXHIBIT E


-1-






 


     11.     If Tenant is a corporation or partnership, each individual executing
this Estoppel Certificate on behalf of Tenant hereby represents and warrants
that Tenant is a duly formed and existing entity qualified to do business in
California and that Tenant has full right and authority to execute and deliver
this Estoppel Certificate and that each person signing on behalf of Tenant is
authorized to do so.


     12.     There are no actions pending against the undersigned under the
bankruptcy or similar laws of the United States or any state.


     13.     Other than in compliance with all applicable laws and incidental to
the ordinary course of the use of the Premises, the undersigned has not used or
stored any hazardous substances in the Premises.


     14.     To the undersigned’s knowledge, all tenant improvement work to be
performed by Landlord under the Lease has been completed in accordance with the
Lease and has been accepted by the undersigned and all reimbursements and
allowances due to the undersigned under the Lease in connection with any tenant
improvement work have been paid in full.


     The undersigned acknowledges that this Estoppel Certificate may be
delivered to Landlord or to a prospective mortgagee or prospective purchaser,
and acknowledges that said prospective mortgagee or prospective purchaser will
be relying upon the statements contained herein in making the loan or acquiring
the property of which the Premises are a part and that receipt by it of this
certificate is a condition of making such loan or acquiring such property.


     Executed at
          on
the
          
day of      ,
20     .




	 	 	 
	 	 	
“Tenant”:
	 
	 	 	




	 
	 	 	
a 



	 
	 	 	
By:



	 
	 	 	
Its:



	 
	 	 	


Name:




Its:








EXHIBIT E



-2-






 





EXHIBIT F



SAN TOMAS BUSINESS PARK



FORM OF LETTER OF CREDIT

(Letterhead of a money center bank

acceptable to the Landlord)



                   
          , 2000


San Tomas Properties, LLC

c/o DivcoWest Group, LLC

150 Almaden Boulevard

Suite 700

San Jose, California 95113



Gentlemen:


     We hereby establish our Irrevocable Letter of Credit and authorize you to
draw on us at sight for the account of AKAMAI TECHNOLOGIES, INC., a Delaware
corporation, the aggregate amount of Five Million Seven Hundred Eighty-One
Thousand Eight Hundred Forty and No/100 Dollars ($5,781, 840.00).


     Funds under this Letter of Credit are available to the beneficiary hereof
as follows:


     Any or all of the sums hereunder may be drawn down at any time and from
time to time from and after the date hereof by a representative of SAN TOMAS
PROPERTIES, LLC, a Delaware limited liability company (“Beneficiary”), when
accompanied by this Letter of Credit and a written statement, certifying that
such moneys are due and owing to Beneficiary.


     This Letter of Credit is transferable in its entirety. Should a transfer
be desired, such transfer will be subject to the return to us of this advice,
together with written instructions.


     The amount of each draft must be endorsed on the reverse hereof by the
negotiating bank. We hereby agree that this Letter of Credit shall be duly
honored upon presentation and delivery of the certification specified above.


     This Letter of Credit
shall expire on
                   ,
200     .


     Notwithstanding the above expiration date of this Letter of Credit, the
term of this Letter of Credit shall be automatically renewed for successive,
additional one (1) year periods unless, at least thirty (30) days prior to any
such date of expiration, the undersigned shall give written notice to
Beneficiary, by certified mail, return receipt requested and at the address set
forth above or at such other address as may be given to the undersigned by
Beneficiary, that this Letter of Credit will not be renewed.


EXHIBIT F



-1-






 


     This Letter of Credit is governed by the Uniform Customs and Practice for
Documentary Credits (1993 Revision), International Chamber of Commerce
Publication 500.



	 	Very truly yours,

(Name of Issuing Bank)




	 	By:
                                 
            



EXHIBIT F




-2-