exv10w8



 






Exhibit 10.8




SHORELINE TECHNOLOGY PARK

MOUNTAIN VIEW, CALIFORNIA




OFFICE LEASE AGREEMENT




BETWEEN




EOP-SHORELINE TECHNOLOGY PARK, L.L.C., a Delaware limited liability company

(“LANDLORD”)




AND




PERLEGEN SCIENCES, INC., a Delaware corporation

(“TENANT”)




 









 





TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	I.

	 	Basic Lease Information
	 	 	1	 
	II.

	 	Lease Grant
	 	 	4	 
	III.

	 	Possession
	 	 	4	 
	IV.

	 	Rent
	 	 	6	 
	V.

	 	Compliance with Laws; Use
	 	 	10	 
	VI.

	 	Security Deposit
	 	 	11	 
	VII.

	 	Services
	 	 	11	 
	VIII.

	 	Leasehold Improvements
	 	 	12	 
	IX.

	 	Repairs, Maintenance and Alterations
	 	 	13	 
	X.

	 	Use of Utility Services by Tenant
	 	 	15	 
	XI.

	 	Entry by Landlord
	 	 	15	 
	XII.

	 	Assignment and Subletting
	 	 	16	 
	XIII.

	 	Liens
	 	 	18	 
	XIV.

	 	Indemnity and Waiver of Claims
	 	 	18	 
	XV.

	 	Insurance
	 	 	19	 
	XVI.

	 	Subrogation
	 	 	20	 
	XVII.

	 	Casualty Damage
	 	 	20	 
	XVIII.

	 	Condemnation
	 	 	21	 
	XIX.

	 	Events of Default
	 	 	22	 
	XX.

	 	Remedies
	 	 	22	 
	XXI.

	 	Limitation of Liability
	 	 	24	 
	XXII.

	 	No Waiver
	 	 	24	 
	XXIII.

	 	Quiet Enjoyment
	 	 	25	 
	XXIV.

	 	Relocation
	 	 	25	 
	XXV.

	 	Holding Over
	 	 	25	 
	XXVI.

	 	Subordination to Mortgages; Estoppel Certificate
	 	 	25	 
	XXVII.

	 	Attorneys’ Fees
	 	 	26	 
	XXVIII.

	 	Notice
	 	 	26	 
	XXIX.

	 	Excepted Rights
	 	 	27	 
	XXX.

	 	Surrender of Premises
	 	 	27	 
	XXXI.

	 	Miscellaneous
	 	 	28	 
	XXXII.

	 	Entire Agreement
	 	 	30	 






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OFFICE LEASE AGREEMENT




     THIS OFFICE LEASE AGREEMENT (the “Lease”) is made and entered into as of the 26th day of
September, 2001, by and between EOP-SHORELINE TECHNOLOGY PARK, L.L.C., a Delaware limited liability
company (“Landlord”) and PERLEGEN SCIENCES, INC., a Delaware corporation (“Tenant”).



     I. Basic Lease Information.



          A. “Building” shall mean the building in Mountain View, California located at 2021 Stierlin
Court.




          B. “Rentable Square Footage of the Building” shall be deemed to be 58,176 square feet.




          C. “Premises” shall mean the area shown on Exhibit A-1 to this Lease. The “Rentable Square
Footage of the Premises” is deemed to be the Rentable Square Footage of the Building. Landlord and
Tenant stipulate and agree that the Rentable Square Footage of the Building and the Rentable Square
Footage of the Premises are correct and shall not be remeasured.




          D. “Base Rent”:




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Annual Rate Per	 	 	 	 
	Period	 	Square Foot	 	Annual Base Rent	 	Monthly Base Rent
	10/16/01-10/31/02
	 	$	37.20	 	 	$	2,164,147.20	 	 	$	180,345.60	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	11/1/02-10/31/03
	 	$	38.40	 	 	$	2,233,958.40	 	 	$	186,163.20	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	11/1/03-10/31/04
	 	$	39.60	 	 	$	2,303,769.60	 	 	$	191,980.80	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	11/1/04-10/31/05
	 	$	40.80	 	 	$	2,373,580.80	 	 	$	197,798.40	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	11/1/05-10/31/06
	 	$	42.00	 	 	$	2,443,392.00	 	 	$	203,616.00	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	11/1/06-10/31/07
	 	$	43.20	 	 	$	2,513,203.20	 	 	$	209,433.60	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	11/1/07-10/31/08
	 	$	44.40	 	 	$	2,583,014.40	 	 	$	215,251.20	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	11/1/08-10/31/09
	 	$	45.60	 	 	$	2,652,825.60	 	 	$	221,068.80	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	11/1/09-10/31/10
	 	$	46.80	 	 	$	2,722,636.80	 	 	$	226,886.40	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	11/1/10-10/31/11
	 	$	48.00	 	 	$	2,792,448.00	 	 	$	232,704.00	 






     Landlord and Tenant acknowledge that the schedule of Base Rent described above is based on the
assumption that the Term (as hereinafter defined) will commence on October 16, 2001. If the Term
does not commence on October 16, 2001, the beginning and ending dates set forth in the above
schedule with respect to the payment of any installment(s) of Base Rent shall be appropriately
adjusted on a per diem basis and set forth in the Commencement Letter to be prepared by Landlord.



 









 








In the event that the Base Rent rate adjusts (up or down) on any day other than the first day of
the month, Base Rent for the month on which such adjustment occurs shall be determined based on the
number of days in such month for which each particular Base Rent rate is applicable.



          E. “Tenant’s Pro Rata Share”: 100%.




          F. “Term”: A period of 120 months and 16 days. The Term shall commence on October 16, 2001
(the “Commencement Date”), and unless terminated early in accordance with this Lease, shall end on
October 31, 2011 (the “Termination Date”). Landlord and Tenant acknowledge that as of the date of
this Lease, it is currently anticipated that the Commencement Date shall be October 16, 2001. In
the event the Commencement Date is not October 16, 2001, Landlord and Tenant shall enter into a
commencement letter in the form attached as Exhibit C.




          G. Tenant allowance(s): None.




          H. “Security Deposit”: $1,600,000.00. The Security Deposit shall be in the form of an
irrevocable letter of credit (the “Letter of Credit”), as more fully described in Article VI of
this Lease.




          I. “Guarantor(s)”: None.




          J. “Broker(s)”: Cresa Partners.




          K. “Permitted Use”: Office, research and development, manufacturing, storage and other legal
uses as permitted by local zoning laws applicable to the Premises and otherwise permitted by the
Governing Documents (as that term is defined in Article XXXI.M. below).




          L. “Notice Addresses”:




	 	 	 
	 

	 	Tenant:
	 
	 	 
	 

	 	On and after the Commencement Date, notices shall be sent to Tenant at the
Premises. Prior to the Commencement Date, notices shall be sent to Tenant at
the following address:
	 
	 	 
	 

	 	Perlegen Sciences, Inc.
	 

	 	3380 Central Expressway
	 

	 	Santa Clara, California 95051
	 

	 	Attention: Vern Norviel
	 

	 	Phone #: (408) 731-8037
	 

	 	Fax#: (408) 731-8069






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	 	With a copy to:
	 
	 	 
	 

	 	Latham & Watkins
	 

	 	505 Montgomery Street
	 

	 	San Francisco, California 94111
	 

	 	Attn: Kenneth Whiting, Esq.
	 
	 	 
	 

	 	If Tenant’s attorney listed above fails to receive the copy of the notice of
a Tenant default, the validity of the notice served on Tenant shall not be
affected thereby.






	 	 	 
	Landlord:

	 	With a copy to:
	 
	 	 
	EOP-Shoreline Technology Park, L.L.C.

	 	Equity Office Properties
	c/o Equity Office Properties Trust

	 	Two North Riverside Plaza
	5104 Old Ironsides Drive

	 	Suite 2200
	Santa Clara, California 95054

	 	Chicago, Illinois 60606
	Attention: Building Manager

	 	Attention: Regional Counsel — San Jose Region






	 	 	 
	 

	 	Rent (defined in Section IV.A) is payable to the order of Equity Office
Properties at the following address: EOP Operating Limited Partnership, as
agent for EOP-Shoreline Technology Park, Dept. #8824, Los Angeles, California
90084-8824.






          M. “Business Day(s)” are Monday through Friday of each week, exclusive of New Year’s Day,
Memorial Day, Independence Day, Labor Day, Thanksgiving Day and Christmas Day (“Holidays”).
Landlord may designate additional Holidays, provided that the additional Holidays are commonly
recognized by other office buildings in the area where the Building is located.




          N. INTENTIONALLY OMITTED.




          O. “Law(s)” means all applicable statutes, codes, ordinances, orders, rules and regulations of
any municipal or governmental entity.




          P. “Property” means the Building and the parcel(s) of land underneath and directly surrounding
the Building. At Landlord’s option, the definition of “Property” may subsequently be expanded to
include the Building’s parking areas and other improvements directly serving the Building, if any,
and the parcel(s) of land on which they are located; provided such additional areas will not then
be included as part of the “Common Areas” for purposes of determining Tenant’s obligations with
respect to the payment of Expenses and Taxes as provided in Article IV below.




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          Q. “Project” shall mean the development located on approximately 51.83 acres commonly
described as Shoreline Technology Park, which includes the Building and the Property, as well as
the other buildings and property as outlined on Exhibit A-2 attached hereto and incorporated
herein.




          R. “Rentable Square Footage of the Project” is deemed to be 726,508 rentable square feet.




          S. “Allocable Share of the Building” means 8.008%.




     II. Lease Grant.



     Landlord leases the Premises to Tenant and Tenant leases the Premises from Landlord, together
with the right in common with others to use any portions of the Project that are designated by
Landlord for the common use of tenants and others, such as sidewalks, unreserved parking areas,
artificial lakes, walkways, water amenities, landscaping, plaza, roads, driveways and recreation
areas (collectively, the “Common Areas”), including, but not limited to, that certain recreational
area which is maintained by Landlord in the location and configuration shown on Exhibit A-3
attached hereto. Notwithstanding the foregoing to the contrary, Tenant’s right to use the
Recreational Area shall be subject to the right of the City of Mountain View (“City”) to require
that a portion of the Recreational Area be paved and used for parking purposes at a time to be
determined at the discretion of the City. The area to be used for parking purposes is indicated as
“Potential Parking Area” on Exhibit A-3. If the City requires the parking, Tenant shall have the
non-exclusive right to use the parking spaces created thereby.



     III. Possession.



          A. INTENTIONALLY OMITTED




          B. Subject to Landlord’s obligations under Section IX.B. and Landlord’s obligation to deliver
the Premises to Tenant in broom clean condition, the Premises are accepted by Tenant in “as is”
condition and configuration. Tenant acknowledges and agrees that the Premises may be tendered to
the Tenant with certain property (the “Abandoned Property”) of the Prior Tenant (as defined in
Exhibit D) remaining in the Premises at the time possession of the Premises is delivered to Tenant.
Landlord makes no representations or warranties regarding Tenant’s right to use the Abandoned
Property or its fitness for any particular purpose. By taking possession of the Premises, Tenant
agrees that the Premises are in good order and satisfactory condition, and that there are no
representations or warranties by Landlord regarding the condition of the Premises or the Building.
Notwithstanding anything to the contrary contained in the Lease, Landlord shall not be obligated to tender possession of any portion of the Premises or other space leased by Tenant
from time to time hereunder that, on the date possession is to be delivered, such space is occupied
by a tenant or other occupant or that is subject to the rights of any other tenant or occupant, nor
shall Landlord have any other obligations to Tenant under this Lease with respect to such space
until the date Landlord: (1) recaptures such space from such existing tenant or occupant; and (2)
regains the






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legal right to possession thereof. This Lease shall not be affected by any such failure to deliver possession and Tenant shall have no claim for damages against Landlord as a
result thereof, all of which are hereby waived and released by Tenant. If Landlord is delayed
delivering possession of any portion of the Premises or any other space due to the holdover or
unlawful possession of such space by any party, Landlord shall use reasonable efforts to obtain
possession of the space. In such event, the Commencement Date shall be postponed until the date
Landlord delivers possession of the Premises to Tenant free from occupancy by any party, and the
Termination Date shall be postponed by an equal number of days.




     Notwithstanding the foregoing, if the Commencement Date has not occurred on or before the
Required Commencement Date (defined below), Tenant, as its sole remedy, may terminate this Lease by
giving Landlord written notice of termination on or before the earlier to occur of: (i) 5 Business
Days after the Required Commencement Date; and (ii) the Commencement Date. In such event, this
Lease shall be deemed null and void and of no further force and effect and Landlord shall promptly
refund any prepaid rent and Security Deposit previously advanced by Tenant under this Lease and the
parties hereto shall have no further responsibilities or obligations to each other with respect to
this Lease. The “Required Commencement Date” shall mean the date which is 60 days after the later
of October 16, 2001, the date this Lease is properly executed and delivered by Tenant, the date all
prepaid rental, Security Deposits and Guaranties required under this Lease are delivered to
Landlord, and, if applicable, the date all contingencies, if any, specified in this Lease have been
satisfied or waived in writing by Landlord. Landlord and Tenant acknowledge and agree that the
Required Commencement Date shall be postponed by the number of days the Commencement Date is
delayed due to events of Force Majeure. Notwithstanding anything herein to the contrary, if
Landlord determines in good faith that it will be unable to cause the Commencement Date to occur by
the Required Commencement Date, Landlord shall have the right to provide Tenant with written notice
(the “Commencement Date Extension Notice”) of such inability, which Commencement Date Extension
Notice shall set forth the date on which Landlord reasonably believes that the Commencement Date
will occur. Upon receipt of the Commencement Date Extension Notice, Tenant shall have the right to
terminate this Lease by providing written notice of termination to Landlord within 5 Business Days
after the date of the Commencement Date Extension Notice. If Tenant does not terminate this Lease
within such 5 Business Day period, the Required Commencement Date automatically shall be amended to
be the date set forth in Landlord’s Commencement Date Extension Notice.



          C. To the extent reasonably practical, Landlord shall permit Tenant to take possession of the
Premises prior to the Commencement Date for the sole purpose of performing Landlord-approved
improvements therein or installing furniture, equipment or other personal property of Tenant. Such early possession shall be subject to all of the terms and conditions
of the Lease, except that other than the cost of services requested by Tenant (if any), Tenant
shall not be required to pay Rent (defined in Section IV.A.) to Landlord with respect to the period
of time prior to the Commencement Date during which Tenant performs such work.

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     IV. Rent.



          A. Payments. As consideration for this Lease, Tenant shall pay Landlord, without any
setoff or deduction, the total amount of Base Rent and Additional Rent due for the Term.
“Additional Rent” means all sums (exclusive of Base Rent) that Tenant is required to pay Landlord
hereunder. Additional Rent and Base Rent are sometimes collectively referred to as “Rent”. Base
Rent and recurring monthly charges of Additional Rent shall be due and payable in advance on the
first day of each calendar month without notice or demand, provided that the installment of Base
Rent for the first full calendar month of the Term shall be payable upon the execution of this
Lease by Tenant. All other items of Rent shall be due and payable by Tenant on or before 30 days
after billing by Landlord. All payments of Rent shall be by good and sufficient check or by other
means (such as automatic debit or electronic transfer) acceptable to Landlord. If Tenant fails to
pay any item or installment of Rent when due, Tenant shall pay Landlord an administration fee equal
to 5% of the past due Rent, provided that Tenant shall be entitled to a grace period of 5 days for
the first 2 late payments of Rent in a given calendar year. If the Term commences on a day other
than the first day of a calendar month or terminates on a day other than the last day of a calendar
month, the monthly Base Rent and Tenant’s Pro Rata Share of Expenses (defined in Section IV.C.) and
Taxes (defined in Section IV.D.) for the month shall be prorated based on the number of days in
such calendar month. Landlord’s acceptance of less than the correct amount of Rent shall be
considered a payment on account of the earliest Rent due. No endorsement or statement on a check
or letter accompanying a check or payment shall be considered an accord and satisfaction, and
either party may accept the check or payment without prejudice to that party’s right to recover the
balance or pursue other available remedies. Tenant’s covenant to pay Rent is independent of every
other covenant in this Lease.




          B. Payment of Tenant’s Pro Rata Share of Expenses and Taxes. Tenant shall pay
Tenant’s Pro Rata Share of the total amount of Expenses (defined in Section IV.C.) and Taxes
(defined in Section IV.D) for each calendar year during the Term. Landlord shall provide Tenant
with a good faith estimate of the total amount of Expenses and Taxes for each calendar year during
the Term. On or before the first day of each month, Tenant shall pay to Landlord a monthly
installment equal to one-twelfth of Tenant’s Pro Rata Share of Landlord’s estimate of the total
amount of Expenses and Taxes. If Landlord determines that its good faith estimate was incorrect by a material amount, Landlord may provide Tenant with a revised
estimate. After its receipt of the revised estimate, Tenant’s monthly payments shall be based upon
the revised estimate. If Landlord does not provide Tenant with an estimate of the total amount of
Expenses and Taxes by January 1 of a calendar year, Tenant shall continue to pay monthly
installments based on the previous year’s estimate until Landlord provides Tenant with the new
estimate. Upon delivery of the new estimate, an adjustment shall be made for any month for which
Tenant paid monthly installments based on the previous year’s estimate. Tenant shall pay Landlord
the amount of any underpayment within 30 days after receipt of the new estimate. Any overpayment
shall be refunded to Tenant within 30 days or credited against the next due future installment(s)
of Additional Rent.

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     As soon as is practical following the end of each calendar year, Landlord shall furnish Tenant
with a statement of the actual amount of Expenses and Taxes for the prior calendar year and
Tenant’s Pro Rata Share of the actual amount of Expenses and Taxes for the prior calendar year. If
the estimated amount of Expenses and Taxes for the prior calendar year is more than the actual
amount of Expenses and Taxes for the prior calendar year, Landlord shall apply any overpayment by
Tenant against Additional Rent due or next becoming due, provided if the Term expires before the
determination of the overpayment, Landlord shall refund any overpayment to Tenant after first
deducting the amount of Rent due. If the estimated amount of Expenses and Taxes for the prior
calendar year is less than the actual amount of Expenses and Taxes for such prior year, Tenant
shall pay Landlord, within 30 days after its receipt of the statement of Expenses and Taxes, any
underpayment for the prior calendar year. Any overpayment or underpayment of Taxes relating to the
year in which this Lease terminates shall be treated in a similar manner. The provisions of this
subsection shall survive the termination of this Lease.



          C. Expenses Defined. “Expenses” means the sum of (y) 100% of all direct and indirect
costs and expenses incurred in each calendar year in connection with operating, maintaining,
repairing, managing and owning the Premises, the Building in which the Premises is located and the
Property, and (z) the Allocable Share of the Building of the direct and indirect costs of operating
and maintaining the Common Areas of the Project (including, but not limited to, the parking
structure(s) or parking lot(s) predominantly serving the Building in which the Premises are
located, unless the same are included by Landlord as part of the “Property”), the Allocable Share
of the Building of all costs, fees, expenses or other amounts payable by Landlord to the
Association (as defined in Article XXXI.M. below), if any, and the Allocable Share of the Building
of all fees payable to the company or the Association, if applicable, managing the parking areas
within the Project, including, without limitation, the following:




               1. Labor costs, including, wages, salaries, social security and employment taxes, medical and
other types of insurance, uniforms, training, and retirement and pension plans.



               2. Management fees, the cost of equipping and maintaining a management office, accounting and
bookkeeping services, legal fees not attributable to leasing or collection activity, and other
administrative costs. Landlord, by itself or through an affiliate, shall have the right to
directly perform or provide any services under this Lease (including management services), provided
that the cost of any such services shall not exceed the cost that would have been incurred had
Landlord entered into an arms-length contract for such services with an unaffiliated entity of
comparable skill and experience.



               3. The cost of services, including amounts paid to service providers and the rental and
purchase cost of parts, supplies, tools and equipment.



               4. Premiums and deductibles paid by Landlord for insurance, including workers compensation,
fire and extended coverage, earthquake, general liability, rental loss,



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elevator, boiler and other insurance customarily carried from time to time by owners of comparable buildings.




               5. Electrical Costs (defined below) and charges for water, gas, steam and sewer applicable to
the Common Areas. “Electrical Costs” means: (a) charges paid by Landlord for electricity; (b)
costs incurred in connection with an energy management program for the Common Areas of the Project;
and (c) if and to the extent permitted by Law, a fee for the services provided by Landlord in
connection with the selection of utility companies and the negotiation and administration of
contracts for electricity, provided that such fee shall not exceed 50% of any savings obtained by
Landlord.



               6. The amortized cost of capital improvements (as distinguished from replacement parts or
components installed in the ordinary course of business) made to the Property and the Common Areas
which are: (a) performed primarily to reduce operating expense costs or otherwise improve the
operating efficiency of the Property and the Common Areas; or (b) required to comply with any Laws
that are enacted, or first interpreted to apply to the Property and the Common Areas, after the
date of this Lease. The cost of capital improvements shall be amortized by Landlord over the
lesser of the Payback Period (defined below) or 10 years. The amortized cost of capital
improvements may, at Landlord’s option, include actual or imputed interest at the rate that
Landlord would reasonably be required to pay to finance the cost of the capital improvement.
“Payback Period” means the reasonably estimated period of time that it takes for the cost savings
resulting from a capital improvement to equal the total cost of the capital improvement.



     If Landlord incurs Expenses for the Project together with one or more other buildings or
properties, whether pursuant to a reciprocal easement agreement, common area agreement or
otherwise, the shared costs and expenses shall be equitably prorated and apportioned between the
Project and the other buildings or properties. Expenses shall not include: the cost of capital
improvements (except as set forth above); depreciation; interest (except as provided above for the
amortization of capital improvements); principal payments of mortgage or ground leases and other non-operating debts of Landlord; the cost of repairs or other work to the extent Landlord is
reimbursed by insurance or condemnation proceeds; costs in connection with leasing space in the
Building or other buildings in the Project, including brokerage commissions; lease concessions,
including rental abatements and construction allowances, granted to specific tenants; costs
incurred in connection with the sale, financing or refinancing of the Building or other buildings
in the Project; fines, interest and penalties incurred due to the late payment of Taxes (defined in
Section IV.D) or Expenses or otherwise in connection with operation of the Building or the Project;
organizational expenses associated with the creation and operation of the entity which constitutes
Landlord; any costs, fines or penalties incurred due to violations by Landlord of any law, order,
rule or regulations of any governmental authority which was in effect (and as enforced) as of the
Commencement Date except where such costs, fines or penalties are incurred by Landlord for
violations of any such law, order, rule or regulation that is ultimately determined to be invalid,
or inapplicable; costs incurred by Landlord in connection with the correction of defects in design
and original construction of the Building or Project; costs incurred (less costs of recovery) for
any items to the extent covered by a



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manufacturer’s, materialman’s, vendor’s or contractor’s warranty (a “Warranty”) which are paid by such manufacturer, materialman, vendor or contractor
(Landlord shall use reasonable efforts to pursue a warranty claim for items covered by a Warranty
unless Landlord determines in good faith that such action would not be in the best interest of the
Building); any penalties or liquidated damages that Landlord pays to Tenant under this Lease or to
any other tenants in the Building under their respective leases; any fines, costs, penalties or
interest resulting from the adjudicated negligence or adjudicated willful misconduct of the
Landlord or its agents, contractors or employees; any cost or expense related to removal, cleaning,
abatement or remediation of “hazardous materials” in or about the Building, Common Area or Project,
including, without limitation, hazardous substances in the ground water or soil, except to the
extent caused by the release or emission of “hazardous materials” by Tenant, or except to the
extent such removal, cleaning, abatement or remediation is related to the general repair and
maintenance of the Building, Common Area or Project; or any penalties or damages that Landlord pays
to Tenant under this Lease or to other tenants in the Building or other buildings in the Project
under their respective leases.




          D. Taxes Defined. “Taxes” shall mean: (1) all real estate taxes and other assessments
on the Building and/or Property, including, but not limited to, assessments for special improvement
districts and building improvement districts, taxes and assessments levied in substitution or
supplementation in whole or in part of any such taxes and assessments and the Building’s and the
Property’s share of any real estate taxes and assessments under any reciprocal easement agreement,
common area agreement or similar agreement as to the Property or the Building; (2) all personal
property taxes for property that is owned by Landlord and used in connection with the operation,
maintenance and repair of the Property and the Building; (3) all costs and fees incurred in
connection with seeking reductions in any tax liabilities described in (1) and (2), including,
without limitation, any costs incurred by Landlord for compliance, review and appeal of tax
liabilities; and (4) the Allocable Share of the Building of (i) all real estate taxes and other
assessments of the Common Areas of the Project, including but not limited to assessments for special improvement districts and building
improvement districts, taxes and assessments levied in substitution or supplementation in whole or
in part of any such taxes and assessments and any real estate taxes and assessments under any
reciprocal easement agreement, common area agreement or similar agreement as to the Common Areas,
(ii) all personal property taxes for property that is owned by Landlord and used in connection with
the operation, maintenance and repair of the Common Areas, and (iii) all costs and fees incurred in
connection with seeking reductions in any tax liabilities described in (i) and (ii) above,
including, without limitation, any costs incurred by Landlord for compliance, review and appeal of
tax liabilities. Without limitation, Taxes shall not include any income, capital levy, franchise,
capital stock, gift, estate or inheritance tax, or tax on Landlord’s income from all sources.
However, Tenant shall pay and be liable for all rental, sales and use taxes, if any, imposed upon
or measured by Rent under applicable Law. If an assessment is payable in installments, Taxes for
the year shall include the amount of the installment and any interest due and payable during that
year. For all other real estate taxes, Taxes for that year shall, at Landlord’s election, include
either the amount accrued, assessed or otherwise imposed for the year or the amount due and payable
for that year, provided that Landlord’s election shall be applied consistently throughout the Term.
If a change in Taxes is obtained for any year of the Term, then






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Taxes for that year will be retroactively adjusted and Landlord shall provide Tenant with a credit, if any, based on the
adjustment.




     Tenant shall be responsible for, and shall pay prior to delinquency, taxes or governmental
service fees, possessory interest taxes, fees or charges in lieu of any such taxes, capital levies,
or other charges imposed upon, levied with respect to, or assessed against, its personal property,
and its interest pursuant to this Lease. To the extent that any such taxes are not separately
assessed or billed to Tenant, Tenant shall pay the amount thereof as invoiced to Tenant by Landlord
prior to the delinquency of such taxes. In the event any Alterations made by Tenant in the
Building are assessed and taxed separately by the applicable taxing authority, then Tenant shall be
liable and shall pay that portion of the Taxes applicable to the value of the Alterations in the
Premises based on the value attributed thereto by the applicable taxing authority to either (a) the
applicable taxing authority prior to the delinquency of such taxes in the event Tenant is billed
directly by such taxing authority, or (b) the Landlord within 30 days after written demand, in the
event Landlord is billed directly by the applicable taxing authority.



          E. Audit Rights. Tenant may, within 90 days after receiving Landlord’s statement of
Expenses, give Landlord written notice (“Review Notice”) that Tenant intends to review Landlord’s
records of the Expenses for that calendar year. Within a reasonable time after receipt of the
Review Notice, Landlord shall make all pertinent records available for inspection that are
reasonably necessary for Tenant to conduct its review. If any records are maintained at a location
other than the office of the Project, Tenant may either inspect the records at such other location
or pay for the reasonable cost of copying and shipping the records. If Tenant retains an agent to
review Landlord’s records, the agent must be with a licensed CPA firm. Tenant shall be solely
responsible for all costs, expenses and fees incurred for the audit. Within 60 days after the records are made available to Tenant, Tenant
shall have the right to give Landlord written notice (an “Objection Notice”) stating in reasonable
detail any objection to Landlord’s statement of Expenses for that year. If Tenant fails to give
Landlord an Objection Notice within the 60 day period or fails to provide Landlord with a Review
Notice within the 90 day period described above, Tenant shall be deemed to have approved Landlord’s
statement of Expenses and shall be barred from raising any claims regarding the Expenses for that
year. If Tenant provides Landlord with a timely Objection Notice, Landlord and Tenant shall work
together in good faith to resolve any issues raised in Tenant’s Objection Notice. If Expenses for
the calendar year are less than reported, Landlord shall provide Tenant with a credit against the
next installment of Rent in the amount of the overpayment by Tenant. Likewise, if Expenses for the
calendar year are greater than reported, Tenant shall pay Landlord the amount of any underpayment
within 30 days. The records obtained by Tenant shall be treated as confidential. In addition, if
Expenses for the Building for the year in question were less than stated by more than 10%,
Landlord, within 30 days after its receipt of paid invoices therefor from Tenant, shall reimburse
Tenant for any reasonable amounts paid by Tenant to third parties in connection with such review by
Tenant. In no event shall Tenant be permitted to examine Landlord’s records or to dispute any
statement of Expenses unless Tenant has paid and continues to pay all Rent when due.

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     V. Compliance with Laws; Use.



     The Premises shall be used only for the Permitted Use and for no other use whatsoever. Tenant
shall not use or permit the use of the Premises for any purpose which is illegal, dangerous to
persons or property or which, in Landlord’s reasonable opinion, unreasonably disturbs any other
tenants of the Project or interferes with the operation of the Building or the Project. Tenant
shall comply with all Laws, including the Americans with Disabilities Act, regarding the operation
of Tenant’s business and the use, condition, configuration and occupancy of the Premises. Tenant,
within 10 days after receipt, shall provide Landlord with copies of any notices it receives
regarding a violation or alleged violation of any Laws relating to its use of the Premises. Tenant
shall comply with the rules and regulations of the Project attached as Exhibit B and such other
reasonable, nondiscriminatory rules and regulations adopted by Landlord from time to time. Tenant
shall also cause its agents, contractors, subcontractors, employees, customers, and subtenants to
comply with all rules and regulations. Landlord shall not knowingly discriminate against Tenant in
Landlord’s enforcement of the rules and regulations. In the event of a conflict between any rules
and regulations enacted after the date hereof and the Lease, this Lease shall control.



     VI. Security Deposit.



     The Security Deposit shall be in the form of an irrevocable letter of credit (the “Letter of
Credit”) which shall: (a) be in the amount of $1,600,000.00; (b) be issued on the form attached
hereto as Exhibit F; (c) name Landlord as its beneficiary; (d) be drawn on an FDIC insured
financial institution reasonably satisfactory to Landlord; and (e) be annually renewable so as to
expire no earlier than 60 days after the Termination Date of this Lease. The Security Deposit
shall be delivered to Landlord in the form of a Letter of Credit which shall be delivered to
Landlord upon the execution of this Lease by Tenant. The Security Deposit shall be held by
Landlord without liability for interest (unless required by Law) as security for the performance of
Tenants obligations. The Security Deposit is not an advance payment of Rent or a measure of
Tenant’s liability for damages. Landlord may, from time to time, without prejudice to any other
remedy, use all or a portion of the Security Deposit to satisfy past due Rent or to cure any
uncured default by Tenant. If Landlord uses the Security Deposit, Tenant shall on demand restore
the Security Deposit to its original amount. Landlord shall return any unapplied portion of the
Security Deposit to Tenant on the later to occur of (1) 45 days after the date Tenant surrenders
possession of the Premises to Landlord in accordance with this Lease; or (2) 45 days after the
Termination Date. If Landlord transfers its interest in the Premises, Landlord may assign the
Security Deposit to the transferee and, following the assignment, Landlord shall have no further
liability for the return of the Security Deposit. Landlord shall not be required to keep the
Security Deposit separate from its other accounts. Tenant hereby waives the provisions of Section
1950.7 of the California Civil Code, or any similar or successor Laws now or hereinafter in effect.



     VII. Services.



          A. 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-








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conditioning, electricity, water, light, power, trash pick-up, sewer charges, telephone, janitorial and interior building security services and all other utility services supplied to the
Premises, and all taxes and surcharges thereon. Landlord agrees to maintain and repair the
Property as described in Article IX.B.




          B. Any interruption or termination of services due to the application of Laws, the failure of
any equipment, the performance of repairs, improvements or alterations, or the occurrence of any
other event (a “Service Failure”) shall not render Landlord liable to Tenant, constitute a
constructive eviction of Tenant, give rise to an abatement of Rent, nor relieve Tenant from the
obligation to fulfill any covenant or agreement. However, if the Premises, or a material portion
of the Premises, is made untenantable for a period in excess of 5 consecutive Business Days as a
result of a Service Failure that was caused solely by the negligence or willful misconduct of the
Landlord, then Tenant, at its sole remedy, shall be entitled to receive an abatement of Rent
payable hereunder during the period beginning on the 6th consecutive Business Day of
such Service Failure and ending on the day the service has been restored. Furthermore, in no event
shall Landlord be liable to Tenant for any loss or damage, including the theft of Tenant’s Property (defined in Article XV),
arising out of or in connection with the failure of any security services, personnel or equipment.




     VIII. Leasehold Improvements.



     All improvements to the Premises (collectively, “Leasehold Improvements”) shall be owned by
Landlord and shall remain upon the Premises without compensation to Tenant. Leasehold Improvements
shall not include Tenant’s Property (as defined in Article XV. below), which items shall at all
times be owned by Tenant. However, Landlord, by written notice to Tenant within 30 days prior to
the Termination Date, may require Tenant to remove, at Tenant’s expense: (1) Cable (defined in
Section IX.A) installed by or for the exclusive benefit of Tenant and located in the Premises or
other portions of the Project; and (2) any Leasehold Improvements that are performed by or for the
benefit of Tenant and, in Landlord’s reasonable judgment, are of a nature that would require
removal and repair costs that are materially in excess of the removal and repair costs associated
with standard improvements to buildings of this kind (collectively referred to as “Required
Removables”). Without limitation, it is agreed that Required Removables include internal
stairways, raised floors, personal baths and showers, vaults, rolling file systems and structural
alterations and modifications of any type. The Required Removables designated by Landlord shall be
removed by Tenant before the Termination Date, provided that upon prior written notice to Landlord,
Tenant may remain in the Premises for up to 15 days after the Termination Date for the sole purpose
of removing the Required Removables. Tenant’s possession of the Premises shall be subject to all
of the terms and conditions of this Lease, including the obligation to pay Rent on a per diem basis
at the rate in effect for the last month of the Term. Tenant shall repair damage caused by the
installation or removal of Required Removables. If Tenant fails to remove any Required Removables
or perform related repairs in a timely manner, Landlord, at Tenant’s expense, may remove and
dispose of the Required Removables and perform the required repairs. Tenant, within 30 days after
receipt of an invoice, shall reimburse Landlord for the reasonable costs incurred by Landlord.
Notwithstanding the foregoing, Tenant, at the time it requests approval for a proposed



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Alteration (defined in Section IX.C), may request in writing that Landlord advise Tenant whether the
Alteration, or any portion of the Alteration, will be designated as a Required Removable. Within
10 days after receipt of Tenant’s request, Landlord shall advise Tenant in writing as to which
portions of the Alteration, if any, will be considered to be Required Removables.




     IX. Repairs, Maintenance and Alterations.



          A. Tenant’s Repair and Maintenance Obligations. Tenant shall, at its sole cost and
expense, promptly perform all maintenance and repairs to the Premises that are not Landlord’s
express responsibility under this Lease, and shall keep the Premises (interior and exterior) in
good condition and repair (including the replacement of any applicable improvements and
appurtenances when necessary), reasonable wear and tear excepted. Tenant’s repair and replacement
obligations include, without limitation, repairs to and replacements of: (1) floor covering; (2)
interior partitions; (3) doors; (4) walls and wall coverings; (5) electronic, phone and data
cabling and related equipment (collectively, “Cable”) that is installed by or for the exclusive
benefit of Tenant and located in the Premises or other portions of the Project; (6) supplemental
air conditioning units, private showers and kitchens, including hot water heaters, and similar
facilities; (7) mechanical (including HVAC), plumbing fixtures, sewer connections (within the
Building), wiring, electrical, lighting, and fire, life safety equipment and systems serving the
Building and the Premises; (8) windows, glass and plate glass; (9) ceilings; (10) roof membrane,
roof screens and roof screen penetrators; (11) skylights; (12) fixtures and equipment; and (13)
Alterations performed by contractors retained by Tenant, including related HVAC balancing. All
work shall be performed in accordance with the rules and procedures described in Section IX.C.
below. In addition, Tenant shall, at its sole cost and expense, provide janitorial service to the
Premises in a manner consistent with other similar projects in the Mountain View, California area.
The janitorial service to be provided by Tenant shall include, but not be limited to, the
obligation to clean the exterior windows (no more frequently than two (2) times per year) and to
keep the interior of the Premises such as the windows, floors, walls, doors, showcases and fixtures
clean and neat in appearance and to remove all trash and debris which may be found in or around the
Premises. In addition, Tenant shall keep and maintain the Premises in accordance with (i) the
Institute of Laboratory Animal Resources “Guide for the Care and Use of Laboratory Animals”, (ii)
the Animal Welfare Act (7 U.S.C. 2131 et. seq.), and (iii) all other applicable Federal, State and
local laws, guidelines and policies relating to the operation and maintenance of biomedical
laboratory facilities (collectively, the “Lab Standards”). Tenant shall also enter into and keep
and maintain in effect, service contracts reasonably acceptable to Landlord with contractors
reasonably acceptable to Landlord for the maintenance of those systems servicing the Building as
Landlord may reasonably designate, including, without limitation, the HVAC and life safety systems
of the Building. In addition, Tenant shall perform testing of the electrical systems in the
Building on a commercially reasonable, regular basis to ensure that such electrical systems are
maintained in the manner required herein. Without limiting the foregoing, Tenant shall, at
Tenant’s sole cost and expense, (a) immediately replace all broken glass in the Premises with glass
equal to or in excess of the specification and quality of the original glass; and (b) repair any
damage caused by Tenant, Tenant’s agents, employees, invitees, visitors, subtenants or contractors.
If Tenant fails to make any required repairs to the Premises within 15 days after notice from
Landlord (although







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notice shall not be required if there is an emergency), Landlord may make the repairs and Tenant shall pay the reasonable cost of the repairs to Landlord within 30 days after
receipt of an invoice, together with an administrative charge in an amount equal to 10% of the cost
of the work performed. In addition, in the event Tenant fails to make any required repairs or
provide the required janitorial services to the Premises and such failure continues beyond the
applicable cure period provided in Article XIX.B. below, such failure shall constitute a default
under this Lease. Tenant shall maintain written records of maintenance and repairs, as required by
Law, and shall use certified technicians to perform any such maintenance and repairs, as so
required.




          B. Landlord’s Repair Obligations. Landlord shall keep and maintain in good repair and
working order and make repairs to and perform maintenance upon: (1) structural elements of the
Building, including Building foundations; (2) Common Areas (including utility lines which run
through the Common Areas); and (3) the roof of the Building (other than the roof membrane, roof
screens and roof screen penetrators). Landlord shall promptly make repairs (considering the nature
and urgency of the repair) for which Landlord is responsible.




          C. Alterations. Tenant shall not make alterations, additions or improvements to the
Premises or install any Cable in the Premises or other portions of the Building or the Project
(collectively referred to as “Alterations”) without first obtaining the written consent of Landlord
in each instance, which consent shall not be unreasonably withheld or delayed. However, Landlord’s
consent shall not be required for any Alteration that satisfies all of the following criteria (a
“Cosmetic Alteration”): (1) is not visible from the exterior of the Premises or Building; (2) will
not materially or adversely affect the systems or structure of the Building; and (3) cost less than
$50,000.00 individually or $150,000.00 in the aggregate during any one year of the Term. However,
even though consent is not required, the performance of Cosmetic Alterations shall be subject to
all the other provisions of this Section IX.C. Prior to starting work, Tenant shall furnish
Landlord with plans and specifications reasonably acceptable to Landlord; names of contractors
reasonably acceptable to Landlord (provided that Landlord may designate specific contractors with
respect to building systems); copies of contracts; necessary permits and approvals; evidence of
contractor’s and subcontractor’s insurance in amounts reasonably required by Landlord; and any
security for performance that is reasonably required by Landlord. Material changes to the plans
and specifications must also be submitted to Landlord for its approval. Alterations shall be
constructed in a good and workmanlike manner using materials of a quality that is at least equal to
the quality designated by Landlord as the minimum standard for the Building and the Project. To
the extent reasonably necessary to avoid disruption to the occupants of the Building and the
Project and to ensure that any work performed at the Building is performed in a good and
workmanlike manner in accordance with all applicable Laws and the terms of this Lease, Landlord may
designate reasonable rules, regulations and procedures for the performance of work in the Building
and the Project and Landlord shall have the right to designate the time when Alterations may be
performed. Tenant shall reimburse Landlord within 30 days after receipt of an invoice for sums
paid by Landlord for third party examination of Tenant’s plans for non-Cosmetic Alterations. In
addition, within 30 days after receipt of an invoice from Landlord, Tenant shall pay Landlord a fee
for Landlord’s oversight and coordination of any non-Cosmetic Alterations equal to 5% of the cost
of the non-Cosmetic




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Alterations. Upon completion, Tenant shall furnish “as-built” plans (except for Cosmetic Alterations), completion affidavits, full and final waivers of lien in recordable
form, and receipted bills covering all labor and materials. Tenant shall assure that the
Alterations comply with all insurance requirements and Laws. Landlord’s approval of an Alteration
shall not be a representation by Landlord that the Alteration complies with applicable Laws or will
be adequate for Tenant’s use.




     X. Use of Utility Services by Tenant.



          A. Electricity, gas, water and other utility services used by Tenant in the Premises shall be
paid for by Tenant by separate charge billed by the applicable utility company and payable directly
by Tenant. Electrical service to the Common Areas may be furnished by one or more companies
providing electrical generation, transmission and distribution services, and the cost of
electricity may consist of several different components or separate charges for such services, such
as generation, distribution and stranded cost charges. Landlord shall have the exclusive right to
select any company providing electrical service to the Common Areas, to aggregate the electrical
service for the Common Areas of the Project with other buildings, to purchase electricity through a
broker and/or buyers group and to change the providers and manner of purchasing electricity.
Landlord shall be entitled to receive a fee (if permitted by Law) for the selection of utility
companies and the negotiation and administration of contracts for electricity, provided that the
amount of such fee shall not exceed 50% of any savings obtained by Landlord.




          B. Tenant’s use of electrical service shall not exceed, either in voltage, rated capacity, or
overall load, the Building’s electrical capacity (as reasonably determined by Landlord). If Tenant
requests permission to consume excess electrical service, Landlord may refuse to consent or may
condition consent upon conditions that Landlord reasonably elects (including, without limitation,
the installation of utility service upgrades, meters, submeters, air handlers or cooling units),
and the additional usage (to the extent permitted by Law), installation and maintenance costs shall
be paid by Tenant. Landlord’s consent to any such request shall not be unreasonably withheld,
conditioned or delayed. Landlord shall have the right to separately meter electrical usage for the
Premises and to measure electrical usage by survey or other commonly accepted methods.




     XI. Entry by Landlord.



     Subject to Tenant’s reasonable security and operating procedures, Landlord, its agents,
contractors and representatives may enter the Premises to inspect or show the Premises, to clean
and make repairs, alterations or additions to the Premises, and to conduct or facilitate repairs,
alterations or additions to any portion of the Building or the Project, including other tenants’
premises, and Tenant shall be entitled to have an employee of Tenant accompany the person(s)
entering the Premises, provided Tenant makes such employee available at the time Landlord or such
other party desires to enter the Premises. Except in emergencies or to provide regularly scheduled
services, Landlord shall use its reasonably efforts to provide Tenant with at least 24 hours prior
notice of entry into the Premises, which may be given orally. If reasonably necessary for the
protection and safety of Tenant and its employees, Landlord shall have the right to temporarily
close all or a portion of the Premises to perform repairs, alterations and additions. However,
except in emergencies, Landlord



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will not close the Premises if the work can reasonably be completed on weekends and after the
hours of 8:00 A.M. to 5:00 P.M. on Business Days. Entry by Landlord shall not constitute
constructive eviction or entitle Tenant to an abatement or reduction of Rent.




     XII. Assignment and Subletting.



          A. Except in connection with a Permitted Transfer (defined in Section XII.E. below), Tenant
shall not assign, sublease, transfer or encumber any interest in this Lease or allow any third
party to use any portion of the Premises (collectively or individually, a “Transfer”) without the
prior written consent of Landlord, which consent shall not be unreasonably withheld, delayed or
conditioned, subject to Landlord’s termination rights under Section XII.B below. Without
limitation, it is agreed that Landlord’s consent shall not be considered unreasonably withheld if:
(1) the proposed transferee’s financial condition does not meet the criteria Landlord uses to
select Project tenants having similar leasehold obligations; (2) the proposed transferee’s business
is not suitable for the Building or the Project considering the business of the other tenants and
the Project’s prestige, or would result in a violation of another tenant’s rights; (3) the proposed
transferee is a governmental agency or occupant of the Project; (4) Tenant is in default after the
expiration of the notice and cure periods in this Lease; or (5) any portion of the Building,
Project or Premises would likely become subject to additional or different Laws as a consequence of
the proposed Transfer. Notwithstanding the foregoing, Landlord will not withhold its consent
solely because the proposed subtenant or assignee is an occupant of the Project if Landlord does
not have space available for lease in the Project that is comparable to the space Tenant desires to
sublet or assign. For purposes hereof, Landlord shall be deemed to have comparable space if it has
space available on any floor of any building of the Project that is approximately the same size as
the space Tenant desires to sublet or assign within 6 months of the proposed commencement of the
proposed sublease or assignment, and such comparable space is configured and improved in such a
manner that the space which Tenant desires to sublease or assign and the Landlord’s comparable
space can be utilized for substantially similar uses (e.g. science labs). Tenant shall not be
entitled to receive monetary damages based upon a claim that Landlord unreasonably withheld its
consent to a proposed Transfer and Tenant’s sole remedy shall be an action to enforce any such
provision through specific performance or declaratory judgment. Tenant hereby waives the
provisions of Section 1995.310 of the California Civil Code, or any similar or successor Laws, now
or hereinafter in effect, and all other remedies, including, without limitation, any right at law
or equity to terminate this Lease, on its own behalf and, to the extent permitted under all
applicable Laws, on behalf of the proposed transferee. Any attempted Transfer in violation of this
Article shall, at Landlord’s option, be void. Consent by Landlord to one or more Transfer(s) shall
not operate as a waiver of Landlord’s rights to approve any subsequent Transfers. In no event
shall any Transfer or Permitted Transfer release or relieve Tenant from any obligation under this
Lease.




          B. As part of its request for Landlord’s consent to a Transfer, Tenant shall provide Landlord
with financial statements for the proposed transferee, a complete copy of the proposed assignment,
sublease and other contractual documents and such other information as Landlord may reasonably
request. Landlord shall, by written notice to Tenant within 20 Business






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Days of its receipt of the required information and documentation, either: (1) consent to the Transfer by the execution of a
consent agreement in a form reasonably designated by Landlord or reasonably refuse to consent to
the Transfer in writing; or (2) in the event of (i) a sublease of any portion of the Premises which
would (a) result in 50% or more of the Premises in the aggregate being subject to sublease(s), or
(b) be for more than 50% of the then remaining Term, or (ii) an assignment of this Lease, exercise
its right to terminate this Lease with respect to the portion of the Premises that Tenant is
proposing to assign or sublet. Any such termination shall be effective on the proposed effective
date of the Transfer for which Tenant requested consent. Tenant shall pay Landlord a review fee of
$750.00 for Landlord’s review of any Permitted Transfer or requested Transfer, provided if
Landlord’s actual reasonable costs and expenses (including reasonable attorney’s fees) exceed
$750.00, Tenant shall reimburse Landlord for its actual reasonable costs and expenses in lieu of a
fixed review fee, up to a maximum of $1,500.00.




          C. All rent and other consideration which Tenant receives as a result of a Transfer that is in
excess of the Rent payable to Landlord for the portion of the Premises and Term covered by the
Transfer shall be retained by Tenant until such time as Tenant has recouped all reasonable
brokerage fees and reasonable attorneys’ fees incurred in connection with such Transfer, plus the
unamortized costs Tenant incurs in connection with the construction of any Alterations Tenant
installs in the Premises (as specified by Tenant to Landlord in detail reasonably satisfactory to
Landlord, and amortized on a straight line basis over the initial Term of this Lease), but in no
event shall the amount so recouped by Tenant exceed $4,000,000.00. Once Tenant has received from
the excess Rent payable in connection with any Transfer(s) hereunder its reasonable brokerage fees
and reasonable attorneys’ fees Tenant incurs in connection with the construction of any Alterations
Tenant installs in the Premises (not to exceed $4,000,000.00), then Tenant shall thereafter pay
Landlord 50% of all excess rent and other consideration which Tenant receives as a result of any
such Transfer that is in excess of the Rent payable to Landlord for the portion of the Premises and
Term covered by the Transfer. Tenant shall pay Landlord for Landlord’s share of any excess within
30 days after Tenant’s receipt of such excess consideration. Tenant may deduct from the excess all
reasonable and customary expenses directly incurred by Tenant attributable to the Transfer (other
than Landlord’s review fee), including brokerage fees, legal fees, construction costs and the
unamortized cost of all Tenant improvements paid for by Tenant in connection with the Transfer. If
Tenant is in Monetary Default (defined in Section XIX.A. below), Landlord may require that all
sublease payments be made directly to Landlord, in which case Tenant shall receive a credit against
Rent in the amount of any payments received (less Landlord’s share of any excess).




          D. Except as provided below with respect to a Permitted Transfer, if Tenant is a corporation,
limited liability company, partnership, or similar entity, and if the entity which owns or controls
a majority of the voting shares/rights at any time changes for any reason (including but not limited to a merger, consolidation or reorganization), such change of ownership or control
shall constitute a Transfer provided, however, that none of the following shall constitute a
Transfer, or be considered in determining whether or not a change of control has occurred: (i) any
transfer of stock in a corporation that is the Tenant if the stock of such corporation is publicly
held and traded through a recognized security exchange; and (ii) if Tenant is a corporation, any
initial public offering of such






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stock in connection with the listing of such stock on a recognized
security exchange. Additionally, the foregoing change of control provisions shall not apply if at
least 80% of its voting stock is owned by another entity, the voting stock of which is listed on a
recognized security exchange. Notwithstanding the foregoing to the contrary, any change in control
resulting from the addition of additional equity investors shall not require Landlord’s prior
consent, provided (a) Landlord shall be notified of such change in control within 30 days following
the effective date of such change in control, and (b) the management and operations of Tenant do
not materially change as a result of such change in control.




          E. Notwithstanding anything to the contrary contained herein or in Section XII.D., Tenant may
assign its entire interest under this Lease or sublet the Premises to a wholly owned corporation,
partnership or other legal entity or affiliate, subsidiary or parent of Tenant or to any successor
to Tenant by purchase, merger, consolidation or reorganization (hereinafter, collectively, referred
to as “Permitted Transfer”) without the consent of Landlord, provided: (i) Tenant is not in default
under this Lease; (ii) if such proposed transferee is a successor to Tenant by purchase, merger,
consolidation or reorganization, the continuing or surviving entity shall own all or substantially
all of the assets of Tenant and shall have a net worth which is at least equal to the greater of
Tenant’s net worth at the date of this Lease or Tenant’s net worth at the date of the Transfer;
(iii) such proposed transferee operates the business in the Premises for the Permitted Use and no
other purpose; and (iv) in no event shall any Permitted Transfer release or relieve Tenant from any
of its obligations under this Lease. Tenant shall give Landlord written notice at least 10
Business Days prior to the effective date of such Permitted Transfer. As used herein: (a) “parent”
shall mean a company which owns a majority of Tenant’s voting equity; (b) “subsidiary” shall mean
an entity wholly owned by Tenant or at least 51% of whose voting equity is owned by Tenant; and (c)
“affiliate” shall mean an entity controlled, controlling or under common control with Tenant.
Notwithstanding the foregoing, sale of the shares of equity of any affiliate or subsidiary to which
this Lease has been assigned or transferred other than to another parent, subsidiary or affiliate
of the original Tenant named hereunder shall be deemed to be an assignment requiring the consent of
Landlord hereunder.




     XIII. Liens.



     Tenant shall not permit mechanic’s or other liens to be placed upon the Project, Property,
Premises or Tenant’s leasehold interest in connection with any work or service done or purportedly
done by or for benefit of Tenant. If a lien is so placed, Tenant shall, within 10 days of notice
from Landlord of the filing of the lien, fully discharge the lien by settling the claim which
resulted in the lien or by bonding or insuring over the lien in the manner prescribed by the
applicable lien Law. If Tenant fails to discharge the lien, then, in addition to any other right
or remedy of Landlord, Landlord may bond or insure over the lien or otherwise discharge the lien.
Tenant shall reimburse Landlord for any amount paid by Landlord to bond or insure over the lien or
discharge the lien, including, without limitation, reasonable attorneys’ fees (if and to the extent
permitted by Law) within 30 days after receipt of an invoice from Landlord.




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     XIV. Indemnity and Waiver of Claims.



          A. Except to the extent caused by the negligence or willful misconduct of Landlord or any
Landlord Related Parties (defined below), Tenant shall indemnify, defend and hold Landlord, its
trustees, members, principals, beneficiaries, partners, officers, directors, employees,
Mortgagee(s) (defined in Article XXVI) and agents (“Landlord Related Parties”) harmless against and
from all liabilities, obligations, damages, penalties, claims, actions, costs, charges and
expenses, including, without limitation, reasonable attorneys’ fees and other professional fees (if
and to the extent permitted by Law), which may be imposed upon, incurred by or asserted against
Landlord or any of the Landlord Related Parties and arising out of or in connection with any damage
or injury occurring in the Premises or any acts or omissions (including violations of Law) of
Tenant, the Tenant Related Parties (defined below) or any of Tenant’s transferees, contractors or
licensees.




          B. Except to the extent caused by the negligence or willful misconduct of Tenant or any Tenant
Related Parties (defined below), Landlord shall indemnify, defend and hold Tenant, its trustees,
members, principals, beneficiaries, partners, officers, directors, employees and agents (“Tenant
Related Parties”) harmless against and from all liabilities, obligations, damages, penalties,
claims, actions, costs, charges and expenses, including, without limitation, reasonable attorneys’
fees and other professional fees (if and to the extent permitted by Law), which may be imposed
upon, incurred by or asserted against Tenant or any of the Tenant Related Parties and arising out
of or in connection with the acts or omissions (including violations of Law) of Landlord, the
Landlord Related Parties or any of Landlord’s contractors.




          C. Landlord and the Landlord Related Parties shall not be liable for, and Tenant waives, all
claims for loss or damage to Tenant’s business or loss, theft or damage to Tenant’s Property or the
property of any person claiming by, through or under Tenant resulting from: (1) wind or weather;
(2) the failure of any sprinkler, heating or air-conditioning equipment, any electric wiring or any gas, water or steam pipes; (3) the backing up of any sewer pipe or downspout;
(4) the bursting, leaking or running of any tank, water closet, drain or other pipe; (5) water,
snow or ice upon or coming through the roof, skylight, stairs, doorways, windows, walks or any
other place upon or near the Building or the Project; (6) any act or omission of any party other
than Landlord or Landlord Related Parties; and (7) any causes not reasonably within the control of
Landlord. Notwithstanding the foregoing, except as provided in Article XVI to the contrary, Tenant
shall not be required to waive any claims against Landlord (other than for loss or damage to
Tenant’s business) where such loss or damage is due to Landlord’s negligence. Nothing herein shall
be construed as to diminish the repair and maintenance obligations of Landlord contained elsewhere
in this Lease. Tenant shall insure itself against such losses under Article XV below.




     XV. Insurance.



          Tenant shall carry and maintain the following insurance (“Tenant’s Insurance”), at its sole
cost and expense: (1) Commercial General Liability Insurance applicable to the Premises and its
appurtenances providing, on an occurrence basis, a minimum combined single limit of $3,000,000.00;
(2) All Risk Property/Business Interruption Insurance, written at replacement cost


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value and with a replacement cost endorsement covering all of Tenant’s trade fixtures, equipment, furniture and
other personal property within the Premises (“Tenant’s Property”); (3) Workers’ Compensation
Insurance as required by the state in which the Premises is located and in amounts as may be
required by applicable statute; and (4) Employers Liability Coverage of at least $1,000,000.00 per
occurrence. Any company writing any of Tenant’s Insurance shall have an A.M. Best rating of not
less than A-VIII. All Commercial General Liability Insurance policies shall name Tenant as a named
insured and Landlord (or any successor), Equity Office Properties Trust, a Maryland real estate
investment trust, EOP Operating Limited Partnership, a Delaware limited partnership, and their
respective members, principals, beneficiaries, partners, officers, directors, employees, and
agents, and other designees of Landlord as the interest of such designees shall appear, as
additional insureds. All policies of Tenant’s Insurance shall contain endorsements that the
insurer(s) shall give Landlord and its designees at least 30 days’ advance written notice of any
reduction in coverage, cancellation, termination or lapse of insurance. Tenant shall provide
Landlord with a certificate of insurance evidencing Tenant’s Insurance prior to the earlier to
occur of the Commencement Date or the date Tenant is provided with possession of the Premises for
any reason, and upon renewals at least 15 days prior to the expiration of the insurance coverage.
Landlord shall maintain standard so called All Risk property insurance on the Building in an amount
equal to 90% of the replacement cost thereof at the time in question, as reasonably estimated by
Landlord. Except as specifically provided to the contrary, the limits of either party’s’ insurance
shall not limit such party’s liability under this Lease.




     XVI. Subrogation.



     Notwithstanding anything in this Lease to the contrary, Landlord and Tenant hereby waive and
shall cause their respective insurance carriers to waive any and all rights of recovery, claim,
action or causes of action against the other and their respective trustees, principals,
beneficiaries, partners, officers, directors, agents, and employees, for any loss or damage that
may occur to Landlord or Tenant or any party claiming by, through or under Landlord or Tenant, as
the case may be, with respect to Tenant’s Property, the Project, the Building, the Premises, any
additions or improvements to the Project, Building or Premises, or any contents thereof, including
all rights of recovery, claims, actions or causes of action arising out of the negligence of
Landlord or any Landlord Related Parties or the negligence of Tenant or any Tenant Related Parties,
which loss or damage is (or would have been, had the insurance required by this Lease been carried)
covered by insurance.



     XVII. Casualty Damage.



          A. If all or any part of the Premises is damaged by fire or other casualty, Tenant shall
immediately notify Landlord in writing. During any period of time that all or a material portion
of the Premises is rendered untenantable as a result of a fire or other casualty, the Rent shall
abate for the portion of the Premises that is untenantable and not used by Tenant. Landlord shall
have the right to terminate this Lease if: (1) the Building or the Project shall be damaged so
that, in Landlord’s reasonable judgment, substantial alteration or reconstruction of the Building
or the Project shall be


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required (whether or not the Premises has been damaged); (2) Landlord is
not permitted by Law to rebuild the Building or the Project in substantially the same form as
existed before the fire or casualty; (3) the Premises have been materially damaged and there is
less than 2 years of the Term remaining on the date of the casualty; (4) any Mortgagee requires
that the insurance proceeds be applied to the payment of the mortgage debt; or (5) a material
uninsured loss to the Building or the Project occurs. Landlord may exercise its right to terminate
this Lease by notifying Tenant in writing within 90 days after the date of the casualty. If
Landlord does not terminate this Lease, Landlord shall commence and proceed with reasonable
diligence to repair and restore the Building and the Leasehold Improvements (excluding any
Alterations that were performed by Tenant in violation of this Lease). However, in no event shall
Landlord be required to spend more than the insurance proceeds received by Landlord. Landlord
shall not be liable for any loss or damage to Tenant’s Property or to the business of Tenant
resulting in any way from the fire or other casualty or from the repair and restoration of the
damage. Landlord and Tenant hereby waive the provisions of any Law relating to the matters
addressed in this Article, and agree that their respective rights for damage to or destruction of
the Premises shall be those specifically provided in this Lease.




          B. If all or any portion of the Premises shall be made untenantable by fire or other casualty,
Landlord shall, with reasonable promptness, cause an architect or general contractor selected by
Landlord to provide Landlord and Tenant with a written estimate of the amount of time required to
substantially complete the repair and restoration of the Premises and make the Premises tenantable
again, using standard working methods (“Completion Estimate”). If the Completion Estimate
indicates that the Premises cannot be made tenantable within 270 days from the date the repair and restoration is started, then regardless of anything in Section XVII.A above to the
contrary, either party shall have the right to terminate this Lease by giving written notice to the
other of such election within 10 days after receipt of the Completion Estimate. Tenant, however,
shall not have the right to terminate this Lease if the fire or casualty was caused by the
negligence or intentional misconduct of Tenant, Tenant Related Parties or any of Tenant’s
transferees, contractors or licensees.




          C. The provisions of this Lease, including this Article XVII, 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 or the Property, and any Laws, 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
Laws now or hereinafter in effect, shall have no application to this Lease or any damage or
destruction to all or any part of the Premises or the Property.




     XVIII. Condemnation.



     Either party may terminate this Lease if the whole or any material part of the Premises shall
be taken or condemned for any public or quasi-public use under Law, by eminent domain or private
purchase in lieu thereof (a “Taking”). Landlord shall also have the right to terminate this Lease
if there is a Taking of any portion of the Building, the Property or the Project which would leave
the remainder of the Building or the Project unsuitable for use as an office building or an office
park, as



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the case may be, in a manner comparable to the use of the Building and/or the Project
prior to the Taking. In order to exercise its right to terminate the Lease, Landlord or Tenant, as
the case may be, must provide written notice of termination to the other within 45 days after the
terminating party first receives notice of the Taking. Any such termination shall be effective as
of the date the physical taking of the Premises or the portion of the Project, Building or Property
occurs. If this Lease is not terminated, the Rentable Square Footage of the Building, the Rentable
Square Footage of the Premises, the Rentable Square Footage of the Project and Tenant’s Pro Rata
Share shall, if applicable, be appropriately adjusted. In addition, Rent for any portion of the
Premises taken or condemned shall be abated during the unexpired Term of this Lease effective when
the physical taking of the portion of the Premises occurs. All compensation awarded for a Taking,
or sale proceeds, shall be the property of Landlord, any right to receive compensation or proceeds
being expressly waived by Tenant. However, Tenant may file a separate claim at its sole cost and
expense for Tenant’s Property and Tenant’s reasonable relocation expenses, provided the filing of
the claim does not diminish the award which would otherwise be receivable by Landlord. Tenant
hereby waives any and all rights it might otherwise have pursuant to Section 1265.130 of the
California Code of Civil Procedure, or any similar or successor Laws.



     XIX. Events of Default.



     Tenant shall be considered to be in default of this Lease upon the occurrence of any of the
following events of default:



          A. Tenant’s failure to pay when due all or any portion of the Rent, if the failure continues
for 3 days after written notice to Tenant (“Monetary Default”).




          B. Tenant’s failure (other than a Monetary Default) to comply with any term, provision or
covenant of this Lease, if the failure is not cured within 30 days after written notice to Tenant.
However, if Tenant’s failure to comply cannot reasonably be cured within 30 days, Tenant shall be
allowed additional time as is reasonably necessary to cure the failure so long as: (1) Tenant
commences to cure the failure within 30 days, and (2) Tenant diligently pursues a course of action
that will cure the failure and bring Tenant back into compliance with the Lease. However, if
Tenant’s failure to comply creates a hazardous condition, the failure must be cured immediately
upon notice to Tenant. In addition, if Landlord, in good faith, provides Tenant with notice of
Tenant’s failure to comply with any particular term, provision or covenant of the Lease on 3
occasions during any 12 month period, Tenant’s subsequent violation of such term, provision or
covenant shall, at Landlord’s option, be an incurable event of default by Tenant.




          C. Tenant or any Guarantor becomes insolvent, makes a transfer in fraud of creditors or makes
an assignment for the benefit of creditors, or admits in writing its inability to pay its debts
when due.




          D. The leasehold estate is taken by process or operation of Law.




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     XX. Remedies.



          A. Upon the occurrence of any event or events of default under this Lease, whether enumerated
in Article XIX or not, Landlord shall have the option to pursue any one or more of the following
remedies without any notice (except as expressly prescribed herein) or demand whatsoever (and
without limiting the generality of the foregoing, Tenant hereby specifically waives notice and
demand for payment of Rent or other obligations and waives any and all other notices or demand
requirements imposed by applicable Law):




               1. Terminate this Lease and Tenant’s right to possession of the Premises and recover from
Tenant an award of damages equal to the sum of the following:



                    (a) The Worth at the Time of Award of the unpaid Rent which had been earned at the time of
termination;



                    (b) 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 Rent loss that
Tenant affirmatively proves could have been reasonably avoided;



                    (c) The Worth at the Time of Award of the amount by which the unpaid Rent for the balance of
the Term after the time of award exceeds the amount of such Rent loss that Tenant affirmatively
proves could be reasonably avoided;



                    (d) Any other amount necessary to compensate Landlord for all the detriment either proximately
caused by Tenant’s failure to perform Tenant’s obligations under this Lease or which in the
ordinary course of things would be likely to result therefrom; and



                    (e) All such other amounts in addition to or in lieu of the foregoing as may be permitted from
time to time under applicable law.



     The “Worth at the Time of Award” of the amounts referred to in parts (a) and (b) above, shall
be computed by allowing interest at the lesser of a per annum rate equal to: (i) the greatest per
annum rate of interest permitted from time to time under applicable law, or (ii) the Prime Rate
plus five percent (5%). For purposes hereof, the “Prime Rate” shall be the per annum interest rate
publicly announced as its prime or base rate by a federally insured bank selected by Landlord in
the State of California. The “Worth at the Time of Award” of the amount referred to in part (c),
above, 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%);



               2. Employ the remedy described in California Civil Code § 1951.4 (Landlord may continue this
Lease in effect after Tenant’s breach and abandonment and recover Rent as it becomes due, if Tenant
has the right to sublet or assign, subject only to reasonable limitations); or



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               3. Notwithstanding Landlord’s exercise of the remedy described in California Civil Code §
1951.4 in respect of an event or events of default, at such time thereafter as Landlord may elect
in writing, to terminate this Lease and Tenant’s right to possession of the Premises and recover an
award of damages as provided above in Paragraph XX.A.1.



          B. 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 waiver by Landlord of any breach
hereof shall be effective unless such waiver is in writing and signed by Landlord.




          C. TENANT HEREBY WAIVES ANY AND ALL RIGHTS CONFERRED BY SECTION 3275 OF THE CIVIL CODE OF
CALIFORNIA AND BY SECTIONS 1174 (c) AND 1179 OF THE CODE OF CIVIL PROCEDURE OF CALIFORNIA AND ANY
AND ALL OTHER LAWS AND RULES OF LAW FROM TIME TO TIME IN EFFECT DURING THE LEASE TERM PROVIDING
THAT TENANT SHALL HAVE ANY RIGHT TO REDEEM, REINSTATE OR RESTORE THIS LEASE FOLLOWING ITS
TERMINATION BY REASON OF TENANT’S BREACH. TENANT ALSO HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY IN ANY PROCEEDING BASED UPON A BREACH OF THIS LEASE.




          D. No right or remedy herein conferred upon or reserved to Landlord is intended to be
exclusive of any other right or remedy, and each and every right and remedy shall be cumulative and
in addition to any other right or remedy given hereunder or now or hereafter existing by agreement,
applicable law or in equity. In addition to other remedies provided in this Lease, Landlord shall
be entitled, to the extent permitted by applicable Law, to injunctive relief, or to a decree
compelling performance of any of the covenants, agreements, conditions or provisions of this Lease,
or to any other remedy allowed to Landlord at law or in equity. Forbearance by Landlord to enforce
one or more of the remedies herein provided upon an event of default shall not be deemed or
construed to constitute a waiver of such default.




          E. This Article XX shall be enforceable to the maximum extent such enforcement is not
prohibited by applicable Law, and the unenforceability of any portion thereof shall not thereby
render unenforceable any other portion.




     XXI. Limitation of Liability.



     NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS LEASE, THE LIABILITY OF LANDLORD
(AND OF ANY SUCCESSOR LANDLORD) TO TENANT SHALL BE LIMITED TO THE INTEREST OF LANDLORD IN THE
PROJECT. TENANT SHALL LOOK SOLELY TO LANDLORD’S INTEREST IN THE PROJECT FOR THE RECOVERY OF ANY
JUDGMENT OR AWARD AGAINST LANDLORD. NEITHER LANDLORD NOR ANY LANDLORD RELATED PARTY SHALL BE
PERSONALLY LIABLE



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FOR ANY JUDGMENT OR DEFICIENCY. BEFORE FILING SUIT FOR AN ALLEGED DEFAULT BY
LANDLORD, TENANT SHALL GIVE LANDLORD AND THE MORTGAGEE(S) (DEFINED IN ARTICLE XXVI BELOW) WHOM
TENANT HAS BEEN NOTIFIED HOLD MORTGAGES (DEFINED IN ARTICLE XXVI BELOW) ON THE PROJECT, BUILDING OR
PREMISES, NOTICE AND REASONABLE TIME TO CURE THE ALLEGED DEFAULT.



     XXII. No Waiver.



     Either party’s failure to declare a default immediately upon its occurrence, or delay in
taking action for a default shall not constitute a waiver of the default, nor shall it constitute
an estoppel. Either party’s failure to enforce its rights for a default shall not constitute a
waiver of its rights regarding any subsequent default. Receipt by Landlord of Tenant’s keys to the
Premises shall not constitute an acceptance or surrender of the Premises.



     XXIII. Quiet Enjoyment.



     Tenant shall, and may peacefully have, hold and enjoy the Premises, subject to the terms of
this Lease, provided Tenant pays the Rent and fully performs all of its covenants and agreements.
This covenant and all other covenants of Landlord shall be binding upon Landlord and its successors
only during its or their respective periods of ownership of the Building, and shall not be a
personal covenant of Landlord or the Landlord Related Parties.



     XXIV. Relocation.



     INTENTIONALLY OMITTED.



     XXV. Holding Over.



     Except for any permitted occupancy by Tenant under Article VIII, if Tenant fails to surrender
the Premises at the expiration or earlier termination of this Lease, occupancy of the Premises
after the termination or expiration shall be that of a tenancy at sufferance. Tenant’s occupancy
of the Premises during the holdover shall be subject to all the terms and provisions of this Lease
and Tenant shall pay an amount (on a per month basis without reduction for partial months during
the holdover) equal to 140% of the greater of: (1) the sum of the Base Rent and Additional Rent due
for the period immediately preceding the holdover; or (2) the fair market gross rental for the
Premises as reasonably determined by Landlord. No holdover by Tenant or payment by Tenant after
the expiration or early termination of this Lease shall be construed to extend the Term or prevent
Landlord from immediate recovery of possession of the Premises by summary proceedings or otherwise.
In addition to the payment of the amounts provided above, if Landlord is unable to deliver
possession of the Premises to a new tenant, or to perform improvements for a new tenant, as a
result of Tenant’s holdover and Tenant fails to vacate the Premises within 15 days after Landlord
notifies Tenant of Landlord’s inability to deliver possession, or perform improvements, Tenant
shall



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be liable to Landlord for all damages, including, without limitation, consequential damages,
that Landlord suffers from the holdover.



     XXVI. Subordination to Mortgages; Estoppel Certificate.



     Tenant accepts this Lease subject and subordinate to any mortgage(s), deed(s) of trust, ground
lease(s) or other lien(s) now or subsequently arising upon the Premises, the Building, the Property
or the Project, and to renewals, modifications, refinancings and extensions thereof (collectively
referred to as a “Mortgage”). The party having the benefit of a Mortgage shall be referred to as a “Mortgagee”. This clause shall be self-operative, but upon request from a
Mortgagee, Tenant shall execute a commercially reasonable subordination agreement in favor of the
Mortgagee. In lieu of having the Mortgage be superior to this Lease, a Mortgagee shall have the
right at any time to subordinate its Mortgage to this Lease. If requested by a
successor-in-interest to all or a part of Landlord’s interest in the Lease, Tenant shall, without
charge, attorn to the successor-in-interest. Landlord and Tenant shall each, within 10 days after
receipt of a written request from the other, execute and deliver an estoppel certificate to those
parties as are reasonably requested by the other (including a Mortgagee or prospective purchaser).
The estoppel certificate shall include a statement certifying that this Lease is unmodified (except
as identified in the estoppel certificate) and in full force and effect, describing the dates to
which Rent and other charges have been paid, representing that, to such party’s actual knowledge,
there is no default (or stating the nature of the alleged default) and indicating other matters
with respect to the Lease that may reasonably be requested. Landlord represents and warrants to
Tenant that as of the date of this Lease there is no mortgage, deed of trust or ground lease
encumbering the Project.



     Notwithstanding the foregoing in this Article XXVI to the contrary, as a condition precedent
to the future subordination of this Lease to a future Mortgage, Landlord shall be required to
provide Tenant with a non-disturbance, subordination, and attornment agreement in favor of Tenant
from any Mortgagee who comes into existence after the Commencement Date. Such non-disturbance,
subordination, and attornment agreement in favor of Tenant shall provide that, so long as Tenant is
paying the Rent due under the Lease and is not otherwise in default under the Lease beyond any
applicable cure period, its right to possession and the other terms of the Lease shall remain in
full force and effect. Such non-disturbance, subordination, and attornment agreement may include
other commercially reasonable provisions in favor of the Mortgagee, including, without limitation,
additional time on behalf of the Mortgagee to cure defaults of the Landlord and provide that (a)
neither Mortgagee nor any successor-in-interest shall be bound by (i) any payment of the Base Rent,
Additional Rent, or other sum due under this Lease for more than 1 month in advance or (ii) any
amendment or modification of the Lease made without the express written consent of Mortgagee or any
successor-in-interest; (b) neither Mortgagee nor any successor-in-interest will be liable for (i)
any act or omission or warranties of any prior landlord (including Landlord), (ii) the breach of
any warranties or obligations relating to construction of improvements on the Property or any
tenant finish work performed or to have been performed by any prior landlord (including Landlord),
or (iii) the return of any security deposit, except to the extent such deposits have been



-26-









 







received by Mortgagee; and (c) neither Mortgagee nor any successor-in-interest shall be subject to any
offsets or defenses which Tenant might have against any prior landlord (including Landlord).



     XXVII. Attorneys’ Fees.



     If either party institutes a suit against the other for violation of or to enforce any
covenant or condition of this Lease, or if either party intervenes in any suit in which the other
is a party to enforce or protect its interest or rights, the prevailing party shall be entitled to
all of its costs and expenses, including, without limitation, reasonable attorneys’ fees.



     XXVIII. Notice.



     If a demand, request, approval, consent or notice (collectively referred to as a “notice”)
shall or may be given to either party by the other, the notice shall be in writing and delivered by
hand or sent by registered or certified mail with return receipt requested, or sent by overnight or
same day courier service at the party’s respective Notice Address(es) set forth in Article I,
except that if Tenant has vacated the Premises (or if the Notice Address for Tenant is other than
the Premises, and Tenant has vacated such address) without providing Landlord a new Notice Address,
Landlord may serve notice in any manner described in this Article or in any other manner permitted
by Law. Each notice shall be deemed to have been received or given on the earlier to occur of
actual delivery or the date on which delivery is refused, or, if Tenant has vacated the Premises or
the other Notice Address of Tenant without providing a new Notice Address, 3 days after notice is
deposited in the U.S. mail or with a courier service in the manner described above. Either party
may, at any time, change its Notice Address by giving the other party written notice of the new
address in the manner described in this Article.



     XXIX. Excepted Rights.



     This Lease does not grant any rights to light or air over or about the Building or the
Project. Subject to Tenant’s reasonable security and operating procedures and the provisions of
Article XI of this Lease, Landlord excepts and reserves to itself the use of: (1) roofs, (2)
telephone and electrical closets, (3) equipment rooms, Building risers or similar areas, (4) rights
to the land and improvements below the floor of the Premises, (5) the improvements and air rights
above the Premises and the Project, (6) the improvements and air rights outside the demising walls
of the Premises, and (7) the areas within the Premises used for the installation of utility lines
and other installations serving occupants of the Building and/or the Project. Notwithstanding the
foregoing to the contrary, and subject to the terms of Article IX above, Tenant shall have the
right to access the areas specified in subclauses (1), (2), (3) and (7) above. Landlord has the
right to change the name or address of the Building and/or the Project. Landlord also has the
right to make such other changes to the Project, Property and Building as Landlord deems
appropriate, provided the changes do not materially affect Tenant’s ability to use the Premises for
the Permitted Use or increase any Rent payable by Tenant (except to the extent provided and
permitted pursuant to Article IV above). Landlord shall also have the right (but not the
obligation) to temporarily close the Building and/or the Project if Landlord reasonably determines
that there is an imminent danger of significant damage



-27-









 







to the Building or the Project or of personal injury to Landlord’s employees or the occupants of the Building and/or the Project. The
circumstances under which Landlord may temporarily close the Building and/or the Project shall
include, without limitation, electrical interruptions, hurricanes and civil disturbances. A
closure of the Building and/or the Project under such circumstances shall not constitute a
constructive eviction nor entitle Tenant to an abatement or reduction of Rent.



     XXX. Surrender of Premises.



     At the expiration or earlier termination of this Lease or Tenant’s right of possession, Tenant
shall remove Tenant’s Property (defined in Article XV) from the Premises, and quit and surrender
the Premises to Landlord, broom clean, and in good order, condition and repair, ordinary wear and
tear excepted. Tenant shall also be required to remove the Required Removables in accordance with
Article VIII. If Tenant fails to remove any of Tenant’s Property within 2 days after the
termination of this Lease or of Tenant’s right to possession, Landlord, at Tenant’s sole cost and
expense, shall be entitled (but not obligated) to remove and store Tenant’s Property. Landlord
shall not be responsible for the value, preservation or safekeeping of Tenant’s Property. Tenant
shall pay Landlord, upon demand, the expenses and storage charges incurred for Tenant’s Property.
In addition, if Tenant fails to remove Tenant’s Property from the Premises or storage, as the case
may be, within 30 days after written notice, Landlord may deem all or any part of Tenant’s Property
to be abandoned, and title to Tenant’s Property shall be deemed to be immediately vested in
Landlord.



     XXXI. Miscellaneous.



          A. This Lease and the rights and obligations of the parties shall be interpreted, construed
and enforced in accordance with the Laws of the State of California and Landlord and Tenant hereby
irrevocably consent to the jurisdiction and proper venue of such state. If any term or provision
of this Lease shall to any extent be invalid or unenforceable, the remainder of this Lease shall
not be affected, and each provision of this Lease shall be valid and enforced to the fullest extent
permitted by Law. The headings and titles to the Articles and Sections of this Lease are for
convenience only and shall have no effect on the interpretation of any part of the Lease.




          B. Tenant shall not record this Lease or any memorandum without Landlord’s prior written
consent.




          C. Landlord and Tenant hereby waive any right to trial by jury in any proceeding based upon a
breach of this Lease.




          D. Whenever a period of time is prescribed for the taking of an action by Landlord or Tenant,
the period of time for the performance of such action shall be extended by the number of days that
the performance is actually delayed due to strikes, acts of God, shortages of labor or materials,
war, civil disturbances and other causes beyond the reasonable control of the performing party
(“Force Majeure”). However, events of Force Majeure shall not extend any period of time for the
payment of Rent or other sums payable by either party or any period of time for the written
exercise of an option or right by either party.




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          E. Landlord shall have the right to transfer and assign, in whole or in part, all of its
rights and obligations under this Lease and in the Project, Building and/or Property referred to herein, and upon such transfer Landlord shall be released from any further obligations
hereunder, and Tenant agrees to look solely to the successor in interest of Landlord for the
performance of such obligations. Notwithstanding the foregoing, unless such liability is assumed
in writing by its successor in interest hereunder, Landlord shall remain liable after its period of
ownership with respect to any sums due in connection with a breach or default that arose during
such period of ownership.




          F. Tenant represents that it has dealt directly with and only with the Broker as a broker in
connection with this Lease. Tenant shall indemnify and hold Landlord and the Landlord Related
Parties harmless from all claims of any brokers (including Broker) claiming to have represented
Tenant in connection with this Lease. Landlord agrees to indemnify and hold Tenant and the Tenant
Related Parties harmless from all claims of any brokers claiming to have represented Landlord in
connection with this Lease. Landlord shall have no obligation to pay a brokerage commission to
Broker. Tenant shall have the sole responsibility and obligation to pay any commission due to
Broker.




          G. Tenant covenants, warrants and represents that: (1) each individual executing, attesting
and/or delivering this Lease on behalf of Tenant is authorized to do so on behalf of Tenant; (2)
this Lease is binding upon Tenant; and (3) Tenant is duly organized and legally existing in the
state of its organization and is qualified to do business in the State of California. Landlord
covenants, warrants and represents that (1) each individual executing, attesting and/or delivering
this Lease on behalf of Landlord is authorized to do so on behalf of Landlord; (2) this Lease is
binding upon Landlord; and (3) Landlord is duly organized and legally existing in the state of its
organization and is qualified to do business in the State of California. If there is more than one
Tenant, or if Tenant is comprised of more than one party or entity, the obligations imposed upon
Tenant shall be joint and several obligations of all the parties and entities. Notices, payments
and agreements given or made by, with or to any one person or entity shall be deemed to have been
given or made by, with and to all of them.




          H. Time is of the essence with respect to Tenant’s exercise of any expansion, renewal or
extension rights granted to Tenant. This Lease shall create only the relationship of landlord and
tenant between the parties, and not a partnership, joint venture or any other relationship. This
Lease and the covenants and conditions in this Lease shall inure only to the benefit of and be
binding only upon Landlord and Tenant and their permitted successors and assigns.




          I. The expiration of the Term, whether by lapse of time or otherwise, shall not relieve either
party of any obligations which accrued prior to or which may continue to accrue after the
expiration or early termination of this Lease. Without limiting the scope of the prior sentence,
it is agreed that Tenant’s obligations under Articles VIII, XIV, XX, XXV and XXX, and any accrued
obligations under Article IV shall survive the expiration or early termination of this Lease.




-29-









 








          J. Landlord has delivered a copy of this Lease to Tenant for Tenant’s review only, and the
delivery of it does not constitute an offer to Tenant or an option. This Lease shall not be effective against any party hereto until an original copy of this Lease has been signed by
such party.




          K. All understandings and agreements previously made between the parties are superseded by
this Lease, and neither party is relying upon any warranty, statement or representation not
contained in this Lease. This Lease may be modified only by a written agreement signed by Landlord
and Tenant.




          L. Tenant, within 15 days after request, shall provide Landlord with a current financial
statement and such other information as Landlord may reasonably request in order to create a
“business profile” of Tenant and determine Tenant’s ability to fulfill its obligations under this
Lease. Landlord, however, shall not require Tenant to provide such information unless Landlord is
requested to produce the information in connection with a proposed financing or sale of the
Building and/or the Project. Upon written request by Tenant, Landlord shall enter into a
commercially reasonable confidentiality agreement covering any confidential information that is
disclosed by Tenant.




          M. This Lease shall be subject to the terms and conditions of (a) Declaration Of Covenants,
Conditions And Restrictions Of Shoreline Technology Park (“Declaration”) imposing certain
covenants, conditions and restrictions on the use and management of Shoreline Technology Park, (b)
the Bylaws (“Bylaws”) of Shoreline Park Association (“Association”), a California nonprofit mutual
benefit corporation charged with the responsibility of managing Shoreline Technology Park in
accordance with the Declaration, Articles Of Incorporation of the Association (“Articles”) and the
Bylaws, and (c) the rules (“Rules”) adopted from time to time by the Association in accordance with
the Declaration providing for restrictions on the use of Shoreline Technology Park. The
Declaration, Bylaws, Articles and Rules are collectively referred to herein as the “Governing
Documents”. Any failure to comply with the Governing Documents shall be a default under the terms
of this Lease.




          N. Except with regard to requests for consent or approval that require Landlord to make a
determination of the aesthetics of certain signage, alterations or other things that would be
visible from outside the Premises or Building or to assume certain risks, including, without
limitation, the risk that a certain alteration, addition and/or improvement could adversely affect
the mechanical systems or structure of the Building or require excess removal costs, Landlord and
Tenant agree to act reasonably in granting approval or disapproval of any requests by the other for
consent or approval.




     XXXII. Entire Agreement.



     This Lease and the following exhibits and attachments constitute the entire agreement between
the parties and supersede all prior agreements and understandings related to the Premises,
including all lease proposals, letters of intent and other documents: Exhibit A-1 (Outline and



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Location of Premises), Exhibit A-2 (Outline and Location of Project), Exhibit A-3 (Outline and
Location of Recreational Area), Exhibit B (Rules and Regulations), Exhibit C (Commencement Letter),
Exhibit D (Additional Provisions), Exhibit E (Parking Agreement), and Exhibit F (Form of Letter of
Credit).



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     Landlord and Tenant have executed this Lease as of the day and year first above written.



	 	 	 	 	 	 	 	 	 
	 	 	LANDLORD:
	 
	 	 	 	 	 	 	 	 
	 	 	EOP-SHORELINE TECHNOLOGY PARK, L.L.C., a
Delaware limited liability company
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	EOP Operating Limited Partnership, a

Delaware limited partnership, its sole

member
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	By:	 	Equity Office Properties Trust, a

Maryland real estate investment trust,

its managing general partner
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:	 	/s/ John W. Peterson 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Name:	 	John W. Peterson 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Title:	 	SVP 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	TENANT:
	 
	 	 	 	 	 	 	 	 
	 	 	PERLEGEN SCIENCES, INC., a Delaware corporation
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ Brad Margus 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Name:	 	Brad Margus	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Title:	 	CEO 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 	 	 
	 	 	 	 	 





 









 






EXHIBIT A-1




OUTLINE AND LOCATION OF PREMISES




     This Exhibit is attached to and made a part of the Lease dated as of                     , 2001, by
and between EOP-SHORELINE TECHNOLOGY PARK, L.L.C., a Delaware limited liability company
(“Landlord”) and PERLEGEN SCIENCES, INC., a Delaware corporation (“Tenant”) for space in the
Building located at 2021 Stierlin Court, Mountain View, California.





 









 








EXHIBIT A-2




OUTLINE AND LOCATION OF PROJECT




     This Exhibit is attached to and made a part of the Lease dated as of                     , 2001, by
and between EOP-SHORELINE TECHNOLOGY PARK, L.L.C., a Delaware limited liability company
(“Landlord”) and PERLEGEN SCIENCES, INC., a Delaware corporation (“Tenant”) for space in the
Building located at 2021 Stierlin Court, Mountain View, California.





 









 








EXHIBIT A-3




OUTLINE AND LOCATION OF RECREATIONAL AREA




     This Exhibit is attached to and made a part of the Lease dated as of                     , 2001, by
and between EOP-SHORELINE TECHNOLOGY PARK, L.L.C., a Delaware limited liability company
(“Landlord”) and PERLEGEN SCIENCES, INC., a Delaware corporation (“Tenant”) for space in the
Building located at 2021 Stierlin Court, Mountain View, California.





 









 








EXHIBIT B




BUILDING RULES AND REGULATIONS




     The following rules and regulations shall apply, where applicable, to the Premises, the
Building, and the Property. Capitalized terms have the same meaning as defined in the Lease.



     1. Sidewalks, doorways, vestibules, halls, stairways and other similar areas shall not be
obstructed by Tenant or used by Tenant for any purpose other than ingress and egress to and from
the Premises. No rubbish, litter, trash, or material shall be placed, emptied, or thrown in those
areas. At no time shall Tenant permit Tenant’s employees to loiter in Common Areas or elsewhere
about the Building, Property or Project except in connection with such employees’ legitimate use of
the Common Areas, Building, Property and Project pursuant to the terms of this Lease.



     2. Plumbing fixtures and appliances shall be used only for the purposes for which designed,
and no sweepings, rubbish, rags or other unsuitable material shall be thrown or placed in the
fixtures or appliances. Damage resulting to fixtures or appliances by Tenant, its agents,
employees or invitees, shall be paid for by Tenant, and Landlord shall not be responsible for the
damage.



     3. No signs, advertisements or notices shall be painted or affixed to windows, doors or other
parts of the Building or Project, except those of such color, size, style and in such places as are
first approved in writing by Landlord. All tenant identification and suite numbers at the entrance
to the Premises shall be installed by Landlord, at Tenant’s cost and expense, using the standard
graphics for the Building.



     4. Tenant shall not place any lock(s) on any door in the Premises, Building or Project without
Landlord’s prior written consent (which consent shall not be unreasonably withheld) and Landlord
shall have the right to retain at all times and to use keys to all locks within and into the
Premises. All keys shall be returned to Landlord at the expiration or early termination of this
Lease.



     5. Movement in or out of the Building and/or the Project of furniture or equipment, or, in the
event more than one tenant occupies the Building (other than pursuant to a sublease), dispatch or
receipt by Tenant of merchandise or materials requiring the use of elevators, stairways, lobby
areas or loading dock areas, shall be restricted to hours designated by Landlord. In such event,
Tenant shall obtain Landlord’s prior approval by providing a detailed listing of the activity. If
approved by Landlord, the activity shall be under the reasonable supervision of Landlord and
performed in the manner reasonably required by Landlord. Tenant shall assume all risk for damage
to articles moved and injury to any persons resulting from the activity. If equipment, property,
or personnel of Landlord or of any other party is damaged or injured as a result of or in
connection with the activity, Tenant shall be solely liable for any resulting damage or loss.



     6. Landlord shall have the right to approve the weight, size, or location of heavy equipment
or articles in and about the Premises, which consent shall not be unreasonably withheld,



 









 







delayed or conditioned. Damage to the Building and/or the Project by the installation,
maintenance, operation, existence or removal of Tenant’s Property shall be repaired at Tenant’s
sole expense.



     7. Intentionally Omitted.



     8. Tenant shall not: (1) make or permit any improper, objectionable or unpleasant noises or
odors in the Building and/or the Project, or otherwise interfere in any way with other tenants or
persons having business in the Project; (2) solicit business or distribute, or cause to be
distributed, in any portion of the Building and/or the Project, handbills, promotional materials or
other advertising; or (3) conduct or permit other activities in the Building and/or the Project,
that might, in Landlord’s sole opinion, constitute a nuisance.



     9. No aquariums shall be brought into the Building and/or the Project, or kept in or about the
Premises.



     10. No inflammable, explosive or dangerous fluids or substances shall be used or kept by
Tenant in the Premises, Building, Project or about the Property, except for commercially reasonable
quantities of cleaning supplies and office supplies and substances utilized by Tenant in connection
with its business and operation in the Premises, provided that Tenant keeps, maintains, stores,
removes and disposes of such materials in accordance with applicable Laws and any manufacturers’
instructions and provided further that Landlord has first reviewed and approved (in the exercise of
its reasonable discretion) in writing the quantities and types of substances to be utilized by
Tenant. Notwithstanding the foregoing, Tenant shall not, without Landlord’s prior written consent,
spill, remove, release or dispose of, within or about the Premises or any other portion of the
Property or Project, any asbestos-containing materials or any solid, liquid or gaseous material now
or subsequently considered toxic or hazardous under the provisions of 42 U.S.C. Section 9601 et
seq. or any other applicable environmental Law which may now or later be in effect. Tenant shall
comply with all Laws pertaining to and governing the use of the materials described in this
Paragraph 10 by Tenant, and shall remain solely liable for the costs of abatement and removal.



     11. Tenant shall not use or occupy the Premises in any manner or for any purpose which might
injure the reputation or impair the present or future value of the Premises, the Building or the
Project. Tenant shall not use, or permit any part of the Premises to be used, for lodging,
sleeping or for any illegal purpose.



     12. Tenant shall not take any action which would violate Landlord’s labor contracts or which
would cause a work stoppage, picketing, labor disruption or dispute, or interfere with Landlord’s
or any other tenant’s or occupant’s business or with the rights and privileges of any person
lawfully in the Building or the Project (“Labor Disruption”). Tenant shall take the actions
necessary to resolve the Labor Disruption, and shall have pickets removed and, at the request of
Landlord, immediately terminate any work in the Premises that gave rise to the Labor Disruption,
until Landlord gives its written consent for the work to resume. Tenant shall have no claim for
damages against Landlord or any of the Landlord Related Parties, nor shall the Commencement Date of
the Term be extended as a result of the above actions.



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     13. Tenant shall not install, operate or maintain in the Premises or in any other area of the
Building or the Project, electrical equipment that would overload the electrical system beyond its
capacity for proper, efficient and safe operation as determined solely by Landlord. Except as
otherwise permitted or provided by Article VII and Article X.B. of this Lease, Tenant shall not
furnish cooling or heating to the Premises, including, without limitation, the use of electronic or
gas heating devices, without Landlord’s prior written consent. Tenant shall not use more than its
proportionate share of telephone lines and other telecommunication facilities available to service
the Building and/or the Project.



     14. Tenant shall not operate or permit to be operated a coin or token operated vending machine
or similar device (including, without limitation, telephones, lockers, toilets, scales, amusement
devices and machines for sale of beverages, foods, candy, cigarettes and other goods), except for
machines for the exclusive use of Tenant’s employees and invitees.



     15. Landlord may from time to time adopt systems and procedures for the security and safety of
the Building, the Project and their occupants, entry, use and contents. Tenant, its agents,
employees, contractors, guests and invitees shall comply with Landlord’s reasonable systems and
procedures.



     16. Landlord shall have the right to prohibit the use of the name of the Building and/or the
Project or any other publicity by Tenant that in Landlord’s sole opinion may impair the reputation
of the Building and/or the Project or their desirability. Upon written notice from Landlord,
Tenant shall refrain from and discontinue such publicity immediately.



     17. Tenant shall not canvass, solicit or peddle in or about the Building, the Property or the
Project.



     18. Neither Tenant nor its agents, employees, contractors, guests or invitees shall smoke or
permit smoking in the Common Areas, unless the Common Areas have been declared a designated smoking
area by Landlord, nor shall the above parties allow smoke from the Premises to emanate into the
Common Areas or any other part of the Building or the Project. Landlord shall have the right to
designate the Building (including the Premises) and/or the Project as a non-smoking building or
area.



     19. Landlord shall have the right to designate and approve standard window coverings for the
Premises and to establish rules to assure that the Building and the Project present a uniform
exterior appearance. Tenant shall ensure, to the extent reasonably practicable, that window
coverings are closed on windows in the Premises while they are exposed to the direct rays of the
sun.



     20. Deliveries to and from the Premises shall be made only at the times, in the areas and
through the entrances and exits reasonably designated by Landlord. Tenant shall not make
deliveries to or from the Premises in a manner that might interfere with the use by any other
tenant of its premises or of the Common Areas, any pedestrian use, or any use which is inconsistent
with good business practice.




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EXHIBIT C




COMMENCEMENT LETTER

(EXAMPLE)




	 	 	 	 	 
	 

	 	 	 	 
	Date
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	Tenant
	 	 	 	 
	 

	 	 	 	 
	Address
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	 






			
	Re:	 	Commencement Letter with respect to that certain Lease dated as of
____________, 2001, by and between EOP-SHORELINE TECHNOLOGY PARK,
L.L.C., a Delaware limited liability company, as Landlord, and
PERLEGEN SCIENCES, INC., a Delaware corporation, as Tenant, for
58,176 rentable square feet in the Building located at 2021 Stierlin
Court, Mountain View, California.





Dear                                                                :




     In accordance with the terms and conditions of the above referenced Lease, Tenant accepts
possession of the Premises and agrees:



     1. The Commencement Date is                                                             ;



     2. The Termination Date of the Lease is                                                             .



     Please acknowledge your acceptance of possession and agreement to the terms set forth above by
signing all 3 counterparts of this Commencement Letter in the space provided and returning 2 fully
executed counterparts to my attention.



Sincerely,




                                                                                

Property Manager




Agreed and Accepted:



     Tenant:
 
                                                              



      



     By:
                                                                      



     Name:
                                                                 



     Title:
                                                                   



     Date:
                                                                   




 









 








EXHIBIT D




ADDITIONAL PROVISIONS




     This Exhibit is attached to and made a part of the Lease dated as of _______, 2001, by
and between EOP-SHORELINE TECHNOLOGY PARK, L.L.C., a Delaware limited liability company
(“Landlord”) and PERLEGEN SCIENCES, INC., a Delaware corporation (“Tenant”) for space in the
Building located at 2021 Stierlin Court, Mountain View, California.




	I.	 	RENEWAL OPTION.





     A. Tenant shall have the right to extend the Term (the “Renewal Option”) for the entire
Premises only for one additional period of 5 years commencing on the day following the Termination
Date of the initial Term and ending on the 5th anniversary of the Termination Date (the “Renewal
Term”), if:



          1. Landlord receives notice of exercise of the Renewal Option (“Initial Renewal Notice”) not
less than 18 full calendar months prior to the expiration of the initial Term and not more than 24
full calendar months prior to the expiration of the initial Term; and




          2. Tenant is not in default under the Lease beyond any applicable cure periods at the time
that Tenant delivers its Initial Renewal Notice or at the time Tenant delivers its Binding Notice
(as hereinafter defined); and




          3. No part of the Premises is sublet (other than pursuant to a Permitted Transfer) at the time
that Tenant delivers its Initial Renewal Notice or at the time Tenant delivers its Binding Notice;
and




          4. The Lease has not been assigned (other than pursuant to a Permitted Transfer) prior to the
date that Tenant delivers its Initial Renewal Notice or prior to the date Tenant delivers its
Binding Notice.




     B. The initial Base Rent rate per rentable square foot for the Premises during the Renewal
Term shall equal the Prevailing Market (hereinafter defined) rate per rentable square foot for the
Premises.



     C. Tenant shall pay Additional Rent (i.e. Expenses and Taxes) for the Premises during the
Renewal Term in accordance with Article IV of the Lease.



     D. Within 30 days after receipt of Tenant’s Initial Renewal Notice, Landlord shall advise
Tenant of the applicable Base Rent rate for the Premises for the Renewal Term. Tenant, within 15
days after the date on which Landlord advises Tenant of the applicable Base Rent rate for the
Renewal Term, shall either (i) give Landlord final binding written notice (“Binding Notice”) of
Tenant’s exercise of its option, or (ii) if Tenant disagrees with Landlord’s determination, provide
Landlord with written notice of rejection (the “Rejection Notice”). If Tenant fails to provide



 









 




Landlord with either a Binding Notice or Rejection Notice within such 15 day period, Tenant’s
Renewal Option shall be null and void and of no further force and effect. If Tenant provides
Landlord with a Binding Notice, Landlord and Tenant shall enter into the Renewal Amendment upon the
terms and conditions set forth herein. If Tenant provides Landlord with a Rejection Notice,
Landlord and Tenant shall work together in good faith to agree upon the Prevailing Market Base Rent
rate for the Premises during the Renewal Term. Upon agreement Tenant shall provide Landlord with
Binding Notice and Landlord and Tenant shall enter into the Renewal Amendment in accordance with
the terms and conditions hereof. Notwithstanding the foregoing, if Landlord and Tenant are unable
to agree upon the Prevailing Market Base Rent rate for the Premises within 30 days after the date
on which Tenant provides Landlord with a Rejection Notice, Tenant may elect to either rescind its
intention to renew, or subject the process to binding arbitration. Tenant’s election to cause the
disagreement to be resolved by arbitration shall be deemed to be its Binding Notice. If Tenant
fails to require arbitration by notice (the “Arbitration Notice”) within 3 days of the expiration
of the 30 day period set forth above, Tenant’s right to extend the Lease shall be null and void and
of no further force and effect.




     If Tenant provides Landlord with an Arbitration Notice, Landlord and Tenant, within 10 days
after the date of the Arbitration Notice, shall each simultaneously submit to the other, in a
sealed envelope, its good faith estimate of the Prevailing Market rate (collectively referred to as
the “Estimates”). If the higher of such Estimates is not more than 105% of the lower of such
Estimates, then Prevailing Market rate shall be the average of the two Estimates. If the
Prevailing Market rate is not resolved by the exchange of Estimates, Landlord and Tenant, within 7
days after the exchange of Estimates, shall each select an appraiser to determine which of the two
Estimates most closely reflects the Prevailing Market rate for the Premises during the Renewal
Term. Each appraiser so selected shall be certified as an MAI appraiser or as an ASA appraiser and
shall have had at least 5 years experience within the previous 10 years as a real estate appraiser
working in the Mountain View, California area, with working knowledge of current rental rates and
practices. For purposes of this Lease, an “MAI” appraiser means an individual who holds an MAI
designation conferred by, and is an independent member of, the American Institute of Real Estate
Appraisers (or its successor organization, or in the event there is no successor organization, the
organization and designation most similar), and an “ASA” appraiser means an individual who holds
the Senior Member designation conferred by, and is an independent member of, the American Society
of Appraisers (or its successor organization, or, in the event there is no successor organization,
the organization and designation most similar). Upon selection, Landlord’s and Tenant’s appraisers
shall work together in good faith to agree upon which of the two Estimates most closely reflects
the Prevailing Market rate for the Premises during the Renewal Term. The Estimate chosen by such
appraisers shall be binding on both Landlord and Tenant as the Base Rent rate for the Premises
during the Renewal Term. If either Landlord or Tenant fails to appoint an appraiser within the
seven day period referred to above, the appraiser appointed by the other party shall be the sole
appraiser for the purposes hereof. If the two appraisers cannot agree upon which of the two
Estimates most closely reflects the Prevailing Market within the 20 days after their appointment,
then, within 10 days after the expiration of such 20 day period, the 2 appraisers shall select a
third appraiser meeting the aforementioned criteria. Once the third appraiser has been selected as
provided for above, then, as soon thereafter as practicable but in any case within 14 days, the
third appraiser shall make his determination of which



-2-









 




of the two Estimates most closely reflects the Prevailing Market rate and such Estimate shall
be binding on both Landlord and Tenant as the Base Rent rate for the Premises during the Renewal
Term. If the third appraiser believes that expert advice would materially assist him, he may
retain one or more qualified persons, to provide such expert advice. The parties shall share
equally in the costs of the third appraiser and of any experts retained by the third appraiser.
Any fees of any appraiser, counsel or experts engaged directly by Landlord or Tenant, however,
shall be borne by the party retaining such appraiser, counsel or expert. In the event that the
Prevailing Market rate has not been determined by the commencement date of the Renewal Term, Tenant
shall pay Base Rent upon the terms and conditions in effect for initial Term until such time as the
Prevailing Market rate has been determined. Upon such determination, the Base Rent for the
Premises during the Renewal Term shall be retroactively adjusted to the commencement of the Renewal
Term. If such adjustment results in an underpayment of Base Rent by Tenant, Tenant shall pay
Landlord the amount of such underpayment within 30 days after the determination thereof. If such
adjustment results in an overpayment of Base Rent by Tenant, Landlord shall credit such overpayment
against the next installment of Base Rent due under the Lease and, to the extent necessary, any
subsequent installments until the entire amount of such overpayment has been credited against Base
Rent.




     E. If Tenant is entitled to and properly exercises its Renewal Option, Landlord shall prepare
an amendment (the “Renewal Amendment”) to reflect changes in the Base Rent, Term, Termination Date
and other appropriate terms. The Renewal Amendment shall be:



         1. sent to Tenant within a reasonable time after receipt of the Binding Notice; and



         2. executed by Tenant and returned to Landlord within 15 days after receipt of such Renewal
Amendment by Tenant. An otherwise valid exercise of the Renewal Option shall, at Landlord’s
option, be fully effective whether or not the Renewal Amendment is executed.



     F. For purpose hereof, “Prevailing Market” shall mean the annual rental rate per rentable
square foot under renewal leases and amendments entered into on or about the date on which the
Prevailing Market is being determined hereunder for space comparable to the Premises in the
Project. The determination of Prevailing Market shall take into account any material economic
differences between the terms of this Lease and any comparison lease, such as rent abatements,
construction costs and other concessions and the manner, if any, in which the Landlord under any
such lease is reimbursed for operating expenses and taxes. The determination of Prevailing Market
shall also take into consideration any reasonably anticipated changes in the Prevailing Market rate
from the time such Prevailing Market rate is being determined and the time such Prevailing Market
rate will become effective under this Lease.



     G. Landlord and Tenant acknowledge and agree that Tenant’s Renewal Option is personal to
Tenant only and in no event shall Tenant’s Renewal Option be assignable or transferable, except in
connection with a Permitted Transfer.



-3-









 




II. CONTINGENCY. This Lease specifically is contingent upon the modification of that certain lease
dated February 7, 2000 (the “Prior Tenant Lease”), by and between Landlord and Intrabiotics
Pharmaceuticals, Inc., a Delaware corporation (“Prior Tenant”) relating to the Premises. Landlord
currently is negotiating the terms of an agreement with Prior Tenant to modify the Prior Tenant
Lease (the “Prior Tenant Modification Agreement”) so that the Prior Tenant Lease terminates with
respect to the Premises effective on or before October 15, 2001. If Landlord fails to enter into
the Prior Tenant Modification Agreement with Prior Tenant on the terms set forth herein and
otherwise in form and substance satisfactory to Landlord on or before the date which is 5 days
following the date this Lease, executed by Tenant, together with all prepaid rental and security
deposits required hereunder, is delivered to Landlord, then either Landlord or Tenant may terminate
this Lease by providing written notice thereof to the other party hereto within 10 Business Days
after the expiration of such 5 day period.



III. HAZARDOUS MATERIALS. Landlord shall indemnify, defend, protect, save, hold harmless, and
reimburse Tenant, its partners, officers, directors and employees for, from and against any and all
costs, losses, liabilities, damages, assessments, lawsuits, deficiencies, demands, claims and
expenses incurred in connection with, arising out of, resulting from or incident to, the
production, use, generation, storage, treatment, disposal, discharge, release or other handling or
disposition of any Hazardous Materials (defined below) on or about the Project by Landlord, its
officers, employees, agents (in their capacity as agents) and/or independent contractors (in their
capacity as independent contractors), including, without limitation, the effects of handling of any
Hazardous Materials on any person or property within or outside the boundaries of the Project; but
excluding from the foregoing indemnity, Tenant’s negligence or the handling by Tenant during
Tenant’s occupancy of the Premises of any Permitted Materials (as hereinafter defined) and/or
Hazardous Materials on or about the Project at levels which pose a risk to persons located on or
about the Project, and which prompt the initiation of a removal, response, remedial or other action
by a governmental agency or authority possessing and exercising jurisdiction over the Project. For
purposes hereof “Hazardous Materials” shall mean any flammable explosives, radioactive materials,
hazardous wastes, toxic substances, or any related materials or substances, including, without
limitation, any substance defined as or included in the definition of “hazardous substances” under
any applicable federal, state or local law, regulation or ordinance (collectively, “Hazardous
Materials”). Tenant shall indemnify, defend, protect, save, hold harmless, and reimburse Landlord,
its partners, officers, directors and employees for, from and against any and all costs, losses,
liabilities, damages, assessments, lawsuits, deficiencies, demands, claims and expenses incurred in
connection with, arising out of, resulting from or incident to, the production, use, generation,
storage, treatment, disposal, discharge, release or other handling or disposition of any Hazardous
Materials on or about the Project by Tenant, its officers, employees, agents and/or independent
contractors, including, without limitation, the effects of such handling of any Hazardous Materials
on any person or property within or outside the boundaries of the Project; but excluding from the
foregoing indemnity, Landlord’s negligence or the handling by Landlord of any Permitted Materials
and/or Hazardous Materials on or about the Project at levels which pose a risk to persons located
on or about the Project, and which prompt the initiation of a removal, response, remedial or other
action by a governmental agency or authority possessing and exercising jurisdiction over the
Project. Notwithstanding the provisions of this section, Tenant and Landlord shall have the right
to use,




-4-









 







generate and store on the Premises and the Building, and transport to and from the premises and the
Building, those Hazardous Materials which are generally used in the ordinary course in first class
office buildings (collectively, “Permitted Materials”); provided, however, that Tenant’s use,
generation, storage and transport thereof is in compliance with all applicable federal, state and
local laws, regulations and ordinances and any manufacturers’ instructions.





	IV.	 	PERMITTED USE.





        A. Landlord acknowledges that as part of Tenant’s operations in the Premises, Tenant may
perform certain medical research work on the following types of animals: mice, rats, rabbits,
guinea pigs and hamsters (the “Permitted Animals”). Tenant shall not perform any research work on
any animals (or parts thereof) other than the Permitted Animals, and Tenant shall not permit any
animals in the Premises other than the Permitted Animals. Tenant shall at all times keep and
maintain the Permitted Animals utilized by Tenant in accordance with the Lab Standards (as defined
in Article IX.A. of the Lease). All animals brought into the Project shall be transported in
accordance with such rules and regulations as Landlord shall reasonably designate. All animals
kept in the Premises shall be caged or restrained at all times. In no event shall Tenant use or
occupy the Premises in a manner that would be inconsistent with the character and dignity of the
Building or the Project and Landlord may require Tenant to immediately cease any business,
procedures, activities or other use which is causing disturbance of, or interference with
Landlord’s operation and management of the Project or the use and occupancy thereof by any tenant
therein.



        B. Without limiting the limitations imposed by the Permitted Use clause, Tenant shall not use
or permit the Premises to be used for any purpose that would allow animal, medical or medicinal
odors, fumes or noises to emanate from the Premises. In the event such odors, fumes or noises do
emanate from the Premises, Tenant, at its sole cost and expense, shall be responsible for taking
whatever steps are necessary in accordance with all applicable Laws and the terms of this Lease in
order to either eliminate such odors, fumes or noises or to keep such odors, fumes or noises from
emanating from the Building in a manner approved by Landlord. Such steps may include the
installation of an exhaust system or sound proofing in accordance with plans and specifications
approved by Landlord. If Landlord and Tenant are unable to reach an agreement on the course of
action Tenant will take to correct the odor or noise problem, as the case may be, within 10 days
after the date Landlord first contacts Tenant to inform Tenant of the odor or noise problem,
Landlord (in its sole discretion) shall determine the course of action Tenant shall take to correct
the odor or noise problem. Such work to correct the odor or noise problem shall be completed by
Tenant within 30 days of the date a determination is made by either Landlord or Landlord and Tenant
(as applicable) as to the scope of work Tenant shall perform.



        C. Tenant agrees to be solely responsible for the disposal of all medical, infectious and
hazardous waste (including without limitation, all needles, syringes, bloodbags, bandages and
vials) and all animal bodies or parts that are generated in the Tenant’s Premises and to indemnify
and hold Landlord harmless from and against all liabilities, obligations, damages, penalties,
claims, costs, charges and expenses which may be imposed upon, incurred by, or asserted against
Landlord in connection with the generation and existence of such medical, infectious and/or
hazardous waste



-5-









 




(including without limitation, all needles, syringes, bloodbags, bandages and vials) and all
animal bodies or parts and the removal thereof from the Premises. Tenant agrees to comply with all
Laws, ordinances, orders, rules, and regulations of any governmental or regulatory agency with
respect to the generation, existence, removal, storage and disposal of any such medical, infectious
and/or hazardous waste (including without limitation, all needles, syringes, bloodbags, bandages
and vials) and all animal bodies and parts.




     D. Tenant agrees to contract with a licensed and insured medical waste disposal vendor
acceptable to Landlord for the lawful disposal of all medical, infectious and hazardous waste
(including without limitation, all needles, syringes, blood bags, bandages and vials) and all
animal bodies and parts that are generated in Tenant’s Premises, and to provide a copy of such
contract to Landlord. If vendors are changed, Tenant agrees to notify Landlord of such change
prior to the effective date thereof and to provide the appropriate documentation to Landlord. In
no event shall any medical, infectious and/or hazardous waste be placed or stored outside of the
Premises, it being agreed that all such materials shall be kept in the Premises until picked up by
the approved medical waste disposal vendor.



     E. Tenant, at Tenant’s sole cost and expense, shall obtain and maintain throughout the Term
any licenses, permits or zoning approvals required by any governmental body for the conduct of
Tenant’s business and medical uses with the Premises.



     F. In the event Tenant’s activities in the Project results in any disturbance, disruption of
or interference with the business of the Project, including, but not limited to, demonstrations,
pickets, boycotts and/or confrontations or disputes on or about the Project opposing or supporting
Tenant’s activities (a “Use Dispute”), then Tenant shall take all actions necessary to resolve the
Use Dispute and to have the demonstrators, picketers or other individuals engaged in the Use
Dispute removed from the Project in an expeditious manner. Tenant shall have no claim for damages
against Landlord or any of the Landlord Related Parties, as a result of the above actions.


V. SECURITY SYSTEM. Tenant shall have the right to install a separate security system for the
Premises (“Security System”) provided that any such Security System shall be subject to Landlord’s
prior review and approval of the plans and specifications for such Security System. Tenant shall
keep and maintain the Security System in good working order, condition and repair throughout the
Term of this Lease. The installation, maintenance, use and operation of the Security System shall
comply with all applicable governmental laws, rules, regulations and ordinances and the terms of
the Lease. Tenant shall provide Landlord with key cards or access codes, as applicable to permit
Landlord access to the Premises at all times. Tenant acknowledges and agrees that the Tenant’s use
of the Security System and the installation, operation, maintenance and use thereof shall be at
Tenant’s sole risk and Landlord shall have no liability whatsoever in connection therewith. Tenant
hereby waives any and all claims against Landlord for any damages arising from Tenant’s exercise of
its rights under this Section. Furthermore, Tenant agrees to indemnify, defend and hold Landlord
harmless from and against any and all damages, losses, claims, liabilities, costs and expenses
(including, but not limited to, reasonable attorneys’ and other professional fees), actions or
causes of action, or judgments arising in any manner from Tenant’s installation, operation, use and




-6-









 







maintenance of the Security System. At the expiration or earlier termination of the Lease, Tenant
shall, at Landlord’s option, remove the Security System from the Premises and restore the Premises
to the condition which existed prior to the installation of the Security System.




-7-









 





     IN WITNESS WHEREOF, Landlord and Tenant have executed this Exhibit as of the day and year
first above written.



	 	 	 	 	 	 	 	 	 
	 	 	LANDLORD:
	 
	 	 	 	 	 	 	 	 
	 	 	EOP-SHORELINE TECHNOLOGY PARK, L.L.C., a
Delaware limited liability company
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	EOP Operating Limited Partnership, a

Delaware limited partnership, its sole

member
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	By:	 	Equity Office Properties Trust, a

Maryland real estate investment trust,

its managing general partner
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:	 	/s/ John W. Peterson 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Name:	 	John W. Peterson 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Title:	 	SVP 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	TENANT:
	 
	 	 	 	 	 	 	 	 
	 	 	PERLEGEN SCIENCES, INC., a Delaware corporation
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ Brad Margus 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Name:	 	Brad Margus 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Title:	 	CEO 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 	 	 
	 	 	 	 	 






 









 







EXHIBIT E




PARKING AGREEMENT




     This Exhibit is attached to and made a part of the Lease dated as of _______, 2001 by
and between EOP-SHORELINE TECHNOLOGY PARK, L.L.C., a Delaware limited liability company
(“Landlord”) and PERLEGEN SCIENCES, INC., a Delaware corporation (“Tenant”) for space in the
Building located at 2021 Stierlin Court, Mountain View, California.



     1. Landlord hereby grants to Tenant and persons designated by Tenant a license to use 215
non-priority parking spaces (the “Parking Spaces”) in the parking areas (“Parking Facility”)
servicing the Building. Such license shall commence on the Commencement Date and shall continue
until the earlier to occur of the Termination Date under the Lease, the sooner termination of the
Lease, or Tenant’s abandonment of the Premises thereunder. Tenant may, from time to time request
additional parking spaces, and if Landlord shall provide the same, such parking spaces shall be
provided and used on a month-to-month basis, and otherwise on the foregoing terms and provisions,
and at such prevailing monthly parking charges as shall be established from time to time.



     2. Tenant shall at all times comply with all applicable ordinances, rules, regulations, codes,
laws, statutes and requirements of all federal, state, county and municipal governmental bodies or
their subdivisions respecting the use of the Parking Facility. Landlord reserves the right to
adopt, modify and enforce reasonable rules (“Rules”) governing the use of the Parking Facility from
time to time including any key-card, sticker or other identification or entrance system and hours
of operation. The rules set forth herein are currently in effect. Landlord may refuse to permit
any person who violates such rules to park in the Parking Facility, and any violation of the rules
shall subject the car to removal from the Parking Facility.



     3. Unless specified to the contrary above, the parking spaces hereunder shall be provided on a
non-designated “first-come, first-served” basis. Tenant acknowledges that Landlord has no
liability for claims arising through acts or omissions of any Operator (as hereinafter defined) of
the Parking Facility, if any. Landlord shall have no liability whatsoever for any damage to items
located in the Parking Facility, nor for any personal injuries or death arising out of any matter
relating to the Parking Facility, and in all events, Tenant agrees to look first to its insurance
carrier and to require that Tenant’s employees look first to their respective insurance carriers
for payment of any losses sustained in connection with any use of the Parking Facility. Tenant
hereby waives on behalf of its insurance carriers all rights of subrogation against Landlord or
Landlord’s agents. Landlord reserves the right to assign specific parking spaces, and to reserve
parking spaces for visitors, small cars, handicapped persons and for other tenants, guests of
tenants or other parties, which assignment and reservation or spaces may be relocated as determined
by Landlord from time to time, and Tenant and persons designated by Tenant hereunder shall not park
in any location designated for such assigned or reserved parking spaces. Tenant acknowledges that
the Parking Facility may be closed entirely or in part in order to make repairs or perform
maintenance services, or to alter, modify, re-stripe or renovate the Parking Facility, or if
required by casualty, strike, condemnation, act of God, governmental law or requirement or other
reason beyond the operator’s reasonable control.



 









 





     4. If Tenant shall default under this Parking Agreement, the Landlord or the Operator, as the
case may be, shall have the right to remove from the Parking Facility any vehicles hereunder which
shall have been involved or shall have been owned or driven by parties involved in causing such
default, without liability therefor whatsoever. In addition, if Tenant shall default under this
Parking Agreement, Landlord shall have the right to cancel this Parking Agreement on 10 days’
written notice, unless within such 10 day period, Tenant cures such default. If Tenant defaults
with respect to the same term or condition under this Parking Agreement more than 3 times during
any 12 month period, and Landlord notifies Tenant thereof promptly after each such default, the
next default of such term or condition during the succeeding 12 month period, shall, at Landlord’s
election, constitute an incurable default. Such cancellation right shall be cumulative and in
addition to any other rights or remedies available to Landlord at law or equity, or provided under
the Lease (all of which rights and remedies under the Lease are hereby incorporated herein, as
though fully set forth). Any default by Tenant under the Lease shall be a default under this
Parking Agreement, and any default under this Parking Agreement shall be a default under the Lease.



RULES




          (i) Tenant shall have access to the Parking Facility on a 24 hour basis, 7 days a week.
Tenant shall not store or permit its employees to store any automobiles in the Parking Facility
without the prior written consent of the Landlord. Except for emergency repairs, Tenant and its
employees shall not perform any work on any automobiles while located in the Parking Facility, or
on the Property. If it is necessary for Tenant or its employees to leave an automobile in the
Parking Facility overnight, Tenant shall provide the Landlord with prior notice thereof designating
the license plate number and model of such automobile.



          (ii) Cars must be parked entirely within the stall lines painted on the floor, and only small
cars may be parked in areas reserved for small cars.



          (iii) All directional signs and arrows must be observed.



          (iv) The speed limit shall be 5 miles per hour.



          (v) Parking spaces reserved for handicapped persons must be used only by vehicles properly
designated.



          (vi) Parking is prohibited in all areas not expressly designated for parking, including
without limitation:




	 	(a)	 	Areas not striped for parking
	 
	 	(b)	 	aisles
	 
	 	(c)	 	where “no parking” signs are posted
	 
	 	(d)	 	ramps
	 
	 	(e)	 	loading zones




-2-









 











          (vii) Parking stickers, key cards or any other devices or forms of identification or entry
supplied by the Landlord or the Operator, as the case may be, shall remain the property of the
Landlord or the Operator. Such device must be displayed as requested and may not be mutilated in
any manner. The serial number of the parking identification device may not be obliterated.
Parking passes and devices are not transferable and any pass or device in the possession of an
unauthorized holder will be void.



          (viii) Parking Facility managers or attendants are not authorized to make or allow any
exceptions to these Rules.



          (ix) Every parker is required to park and lock his/her own car.



          (x) Loss or theft of parking pass, identification, key cards or other such devices must be
reported to Landlord and to the Parking Facility manager immediately. Any parking devices reported
lost or stolen found on any authorized car will be confiscated and the illegal holder will be
subject to prosecution. Lost or stolen passes and devices found by Tenant or its employees must be
reported to the office of the garage immediately.



          (xi) Washing, waxing, cleaning or servicing of any vehicle by the customer and/or his agents
is prohibited. Parking spaces may be used only for parking automobiles, vans, light trucks and
sport utility vehicles.



          (xii) By signing this Parking Agreement, Tenant agrees to acquaint all persons to whom Tenant
assigns a parking pass with these Rules.



     5. Landlord may elect to provide parking cards or keys to control access to the Parking
Facility or surface parking areas, if any. In such event, Landlord shall provide Tenant with one
card or key for each parking space that Tenant is entitled to hereunder, provided that Landlord
shall have the right to require Tenant or its employees to place a deposit on such access cards or
keys and to pay a fee for any lost or damaged cards or keys.



     6. Landlord hereby reserves the right to enter into a management agreement or lease with an
entity for the Parking Facility (“Operator”). In such event, Tenant upon request of Landlord,
shall enter into a parking agreement with the Operator and pay the Operator the monthly charge
established hereunder, and Landlord shall have no liability for claims arising through acts or
omissions of the Operator unless caused by Landlord’s negligence or willful misconduct. It is
understood and agreed that the identity of the Operator may change from time to time during the
Term. In connection therewith, any parking lease or agreement entered into between Tenant and an
Operator shall be freely assignable by such Operator or any successors thereto.



     7. NO LIABILITY. TENANT ACKNOWLEDGES AND AGREES THAT, TO THE FULLEST EXTENT PERMITTED BY LAW,
LANDLORD SHALL NOT BE RESPONSIBLE FOR ANY LOSS OR DAMAGE TO TENANT OR TENANTS PROPERTY (INCLUDING,
WITHOUT LIMITATIONS, ANY LOSS OR DAMAGE TO TENANT’S AUTOMOBILE OR THE CONTENTS THEREOF DUE TO
THEFT, VANDALISM OR ACCIDENT) ARISING FROM OR



-3-









 







RELATED TO TENANT’S USE OF THE PARKING FACILITY OR
EXERCISE OF ANY RIGHTS UNDER THIS PARKING AGREEMENT, EXCEPT TO THE EXTENT SUCH LOSS OR DAMAGE
RESULTS FROM LANDLORD’S ACTIVE NEGLIGENCE, NEGLIGENT OMISSION OR WILLFUL MISCONDUCT.



     8. Release of Liability. Without limiting the provisions of Paragraph 8 above, Tenant hereby
voluntarily releases, discharges, waives and relinquishes any and all actions or causes of action
for personal injury or property damage occurring to Tenant arising as a result of parking in the
Parking Facility, or any activities incidental thereto, wherever or however the same may occur, and
further agrees that Tenant will not prosecute any claim for personal injury or property damage
against Landlord or any of its officers, agents, servants or employees for any said causes of
action except to the extent caused by Landlord’s negligence or willful misconduct.



     9. The provisions of Article XXI of the Lease are hereby incorporated by reference as if fully
recited.



     Tenant acknowledges that Tenant has read the provisions of this Parking Agreement, has been
fully and completely advised of the potential dangers incidental to parking in the Parking Facility
and is fully aware of the legal consequences of signing this instrument.



-4-









 





     IN WITNESS WHEREOF, Landlord and Tenant have executed this Exhibit as of the day and year
first above written.



	 	 	 	 	 	 	 	 	 
	 	 	LANDLORD:
	 
	 	 	 	 	 	 	 	 
	 	 	EOP-SHORELINE TECHNOLOGY PARK, L.L.C., a
	 	 	Delaware limited liability company
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	EOP Operating Limited Partnership, a Delaware limited partnership, its sole member
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	By:	 	Equity Office Properties Trust, a Maryland real estate investment trust, its managing general partner
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:	 	/s/ John W. Peterson 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Name:	 	John W. Peterson 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Title:
	 	SVP
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 





	 	 	 	 	 
	 	 	TENANT:
	 
	 	 	 	 
	 	 	PERLEGEN SCIENCES, INC., a Delaware corporation
	 
	 	 	 	 
	 

	 	By:	 	/s/ Brad Margus 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	Name:	 	Brad Margus 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	Title:	 	CEO 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	Name:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 	 





 









 






EXHIBIT F




FORM OF LETTER OF CREDIT




     This Exhibit is attached to and made a part of the Lease dated as of _______, 2001, by
and between EOP-SHORELINE TECHNOLOGY PARK, L.L.C., a Delaware limited liability company
(“Landlord”) and PERLEGEN SCIENCES, INC., a Delaware corporation (“Tenant”) for space in the
Building located at 2021 Stierlin Court, Mountain View, California.




 






[Name of Financial Institution]




	 	 	 	 	 
	 	 	Irrevocable Standby
	 	 	Letter of Credit
	 

	 	No.
 




	 

	 	Issuance Date:	 	 
	 

	 	 	 	 
	 

	 	Expiration Date:	 	 
	 

	 	 	 	 
	 

	 	Applicant:
 








Beneficiary




EOP-Shoreline Technology Park, L.L.C.

1735 Technology Drive

Suite 175

San Jose, California 95110

Attn: Leasing Director




Ladies/Gentlemen:




     We hereby establish our Irrevocable Standby Letter of Credit in your favor for the account of
the above referenced Applicant in the amount of One Million Six Hundred Thousand and 00/100 U.S.
Dollars ($1,600,000.00) available for payment at sight by your draft drawn on us when accompanied
by the following documents:


1. An original copy of this Irrevocable Standby Letter of Credit.



2. Beneficiary’s dated statement purportedly signed by one of its officers reading: “This draw in
the amount of _______ U.S. Dollars ($_______) under your Irrevocable Standby
Letter of Credit No. _______ represents funds due and owing to us as a result of the
Applicant’s failure to comply with one or more of the terms of that certain lease by and between
_______, as landlord, and _______, as tenant.”




     It is a condition of this Irrevocable Standby Letter of Credit that it will be considered
automatically renewed for a one year period upon the expiration date set forth above and upon each



 









 







anniversary of such date, unless at least 60 days prior to such expiration date or applicable
anniversary thereof, we notify you in writing by certified mail, return receipt requested, that we
elect
not to so renew this Irrevocable Standby Letter of Credit. A copy of any such notice shall
also be sent to: Equity Office Properties Trust, 2 North Riverside Plaza, Suite 2100, Chicago, IL
60606, Attention: Senior Vice President-Treasurer. In addition to the foregoing, we understand and
agree that you shall be entitled to draw upon this Irrevocable Standby Letter of Credit in
accordance with 1 and 2 above in the event that we elect not to renew this Irrevocable Standby
Letter of Credit and, in addition, you provide us with a dated statement proportedly signed by one
of Beneficiary’s officers stating that the Applicant has failed to provide you with an acceptable
substitute irrevocable standby letter of credit in accordance with the terms of the above
referenced lease. We further acknowledge and agree that: (a) upon receipt of the documentation
required herein, we will honor your draws against this Irrevocable Standby Letter of Credit without
inquiry into the accuracy of Beneficiary’s signed statement and regardless of whether Applicant
disputes the content of such statement; (b) this Irrevocable Standby Letter of Credit shall permit
partial draws and, in the event you elect to draw upon less than the full stated amount hereof, the
stated amount of this Irrevocable Standby Letter of Credit shall be automatically reduced by the
amount of such partial draw; and (c) you shall be entitled to assign your interest in this
Irrevocable Standby Letter of Credit from time to time without our approval and without charge. In
the event of an assignment, we reserve the right to require reasonable evidence of such assignment
as a condition to any draw hereunder.



     This Irrevocable Standby Letter of Credit is subject to the Uniform Customs and Practice for
Documentary Credits (1993 revision) ICC Publication No. 500.



     We hereby engage with you to honor drafts and documents drawn under and in compliance with the
terms of this Irrevocable Standby Letter of Credit.



     All communications to us with respect to this Irrevocable Standby Letter of Credit must be
addressed to our office located at                                                              to the attention of
                                                            .



	 	 	 
	 

	 	Very truly yours,
	 
	 	 
	 

	 	 
	 
	 	 
	 

	 	[name]
	 

	 	 
	 
	 	 
	 

	 	[title]
	 

	 	 






-2-









 







October 13, 2003




Mr. Brad Margus

Perlegen Sciences, Inc.

2021 Stierlin Court

Mountain View, CA 94043




	 	 	 
	Re:

	 	Commencement Letter with respect to that certain Lease dated as of the 26th day of
September, 2001, by and between CA- SHORELINE TECHNOLOGY PARK LIMITED
PARTNERSHIP, a Delaware limited partnership as successor by conversion to EOP-SHORELINE
TECHNOLOGY PARK, L.L.C., a Delaware limited liability company, as Landlord, and
PERLEGEN SCIENCES, INC., a Delaware corporation, as Tenant, for 58,176 rentable square
feet at the Building located at Shoreline Technology Park, 2021 Stierlin Court,
Mountain View, CA 94043.






Dear Mr. Margus:




     In accordance with the terms and conditions of the above-referenced Lease, Tenant accepts
possession of the Premises and agrees:




	 	1.	 	The Commencement Date of the Lease is December 1, 2001;
	 
	 	2.	 	The Termination Date of the Lease is October 31, 2011.
	 
	 	3.	 	“Base Rent”:





	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Annual Rate	 	 	 	 
	 	 	Per Square	 	 	 	 
	Period	 	Foot	 	Annual Base Rent	 	Monthly Base Rent
	12/1/01 - 10/31/02
	 	$	37.20	 	 	$	2,164,147.20	 	 	$	180,345.60	 
	11/1/02 - 10/31/03
	 	$	38.40	 	 	$	2,233,958.40	 	 	$	186,163.20	 
	11/1/03 - 10/31/04
	 	$	39.60	 	 	$	2,303,769.60	 	 	$	191,980.80	 
	11/1/04 - 10/31/05
	 	$	40.80	 	 	$	2,373,580.80	 	 	$	197,798.40	 
	11/1/05 - 10/31/06
	 	$	42.00	 	 	$	2,443,392.00	 	 	$	203,616.00	 
	11/1/06 - 10/31/07
	 	$	43.20	 	 	$	2,513,203.20	 	 	$	209,433.60	 
	11/1/07 - 10/31/08
	 	$	44.40	 	 	$	2,583,014.40	 	 	$	215,251.20	 
	11/1/08 - 10/31/09
	 	$	45.60	 	 	$	2,652,825.60	 	 	$	221,068.80	 
	11/1/09 - 10/31/10
	 	$	46.80	 	 	$	2,722,636.80	 	 	$	226,886.40	 
	11/1/10 - 10/31/11
	 	$	48.00	 	 	$	2,792,488.00	 	 	$	232,704.00	 






     Please acknowledge your acceptance of possession and agreement to the terms set forth
above by signing all 3 counterparts of this Commencement Letter in the space provided and returning
2 fully executed counterparts to my attention.



Sincerely,



CA-SHORELINE TECHNOLOGY PARK LIMITED PARTNERSHIP, a Delaware limited partnership as successor by
conversion to EOP-SHORELINE TECHNOLOGY PARK, L.L.C., a Delaware limited liability company




     By: EOM GP, L.L.C., a Delaware limited company, its general partner



 









 





Mr. Brad Margus

October 13, 2003

Page 2




	 	 	 	 	 	 	 
	 	 	By: Equity Office Management. L.L.C. a Delaware limited liability company, its non-member
manager as agent for owner
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Barbara Johnson 	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Barbara Johnson/Senior Property Manager
	 	 	Its:      Authorized Signatory






	 	 	 	 	 	 	 
	Agreed and Accepted:	 	 
	 
	 	 	 	 	 	 
	Tenant: PERLEGEN SCIENCES, INC., a Delaware corporation  
	 
	 	 	 	 	 	 
	By:	 	/s/ Brad Margus	 	 
	 	 	 	 	 
	 	 	Title: CEO	 	 
	 	 	Date: 10/29/03	 	 
	 

	 	 	 	 	 	 








 









 







FIRST AMENDMENT




     THIS FIRST AMENDMENT (the “Amendment”) is made and entered into as of the 11th day
of June, 2004, by and between CA-SHORELINE TECHNOLOGY PARK LIMITED PARTNERSHIP, a Delaware limited
partnership (“Landlord”), and PERLEGEN SCIENCES, INC., a Delaware corporation (“Tenant”).



RECITALS




     A. Landlord (as successor to EOP-Shoreline Technology Park, L.L.C.), and Tenant are parties to
that certain lease dated September 26, 2001 (“Lease”). Pursuant to the Lease, Landlord has leased
to Tenant space currently containing approximately 58,176 rentable square feet (the “Premises”)
comprising the entire building located at 2021 Stierlin Court, Mountain View, California (the
“Building”).



     B. Tenant and Landlord have mutually agreed to modify Tenant’s obligation to pay Base Rent due
for the Premises during a 6 month period, and the parties desire that the Lease be amended to
reflect the foregoing, on and subject to the following terms and conditions.



     NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained and
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Landlord and Tenant agree as follows:



     I. Base Rent.



          A. Base Rent During Deferral Period. Except as provided herein, Base Rent, Additional Rent
and all other charges under the Lease shall be payable as provided therein, and the total amount of
Base Rent payable under the Lease shall not be modified and shall remain as stated in the Lease.
Notwithstanding the foregoing, effective as of May 1, 2004 (the “Deferral Effective Date”) and
continuing through and including October 31, 2004 (the “Deferral Period”), Base Rent payable with
respect to the Premises shall be deferred up to the maximum amount of $1,151,884.80 (“Deferred Base
Rent”).




          B. Base Rent Following Deferral Period. For the months of November and December 2004
(“Payback Period”), the Base Rent payable under the Lease shall be increased to the monthly sum of
$838,741.00. Commencing January 1, 2005 and continuing thereafter until termination of the Lease,
Base Rent shall be payable by Tenant in accordance with the terms of the Lease.




 









 








          C. Schedule of Base Rent During Deferral and Payback Periods. During the Deferral Period and
Payback Period only, the schedule of the total monthly Base Rent payable under the Lease is the
following:




	 	 	 	 	 
	 	 	Total Monthly
	 	 	Base Rent Payable
	           Period	 	Under Lease
	05/01/04-10/31/04

	 	$	0.00	 
	11/01/04-12/31/04

	 	$	838,741.00	 






          D. Revocation of Deferred Rent Rights. If (1) Tenant subleases all or any portion of the
Premises except in respect of a Permitted Transfer (as defined in Section XII.E of the Lease), (2)
Tenant defaults under the terms of Lease, as amended hereby, and fails to cure such default within
any applicable cure period under the Lease, or (3) Landlord is sued for the return of any alleged
preferential transfer under either state or federal law relating to any portion of the Deferred
Rent, or the payment of any portion of the Deferred Rent is avoided as a preferential transfer in
any voluntary or involuntary bankruptcy case filed by or against Tenant, or in any assignment for
the benefit of creditors made by Tenant, then, notwithstanding anything to the contrary set forth
herein, (i) the Base Rent schedule set forth in Section I.C. above shall be deleted in its entirety
and Tenant shall thereafter pay Base Rent in the amounts set forth in Sections I.D and IV of the
Lease, and (ii) all Deferred Rent shall immediately be due and payable and, except to the extent
required by applicable law, shall not be subject to mitigation or reduction in connection with a
reletting of the Premises or any portion thereof by Landlord. The payment by Tenant of all
Deferred Rent in the event of a default shall not limit or affect any of Landlord’s other rights,
pursuant to the Lease or at law or in equity.




     II. Security Deposit.



          A. Basic Lease Information. Section I.H. of the Basic Lease Information (“Security Deposit”)
is hereby deleted in its entirety and replaced with the following: “Security Deposit: $0.00 as of
the date hereof.”




          B. Article VI. Article VI of the Lease (Security Deposit) is hereby deleted in its entirety
and replaced with the following:




     “Security Deposit.



     The Security Deposit, if any, shall be delivered to Landlord upon the execution of this Lease
by Tenant and shall be held by Landlord without liability for interest (unless required by Law) as
security for the performance of Tenant’s obligations. The Security Deposit is not an advance
payment of Rent or a measure of Tenant’s liability for damages. Landlord may, from time to time,
without prejudice to any other remedy, use any portion of the Security Deposit in an amount
sufficient to satisfy past due Rent or to cure any uncured default by Tenant beyond any applicable
notice and cure period. If Landlord uses the Security Deposit, Tenant shall on demand restore the
Security Deposit to its original amount. Landlord shall return any unapplied portion of the
Security Deposit to Tenant within 45 days after the later to occur of: (1) the date Tenant
surrenders



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possession of the Premises to Landlord in accordance with this Lease; or (2) the Termination
Date. If Landlord transfers its interest in the Premises, Landlord may assign the Security Deposit
to the transferee and, following the assignment, Landlord shall have no further liability for the
return of the Security Deposit, provided that, any successor pursuant to a voluntary, third party
transfer (but not as part of an involuntary transfer resulting from a foreclosure or deed in lieu
thereof) shall have assumed Landlord’s obligations under the Lease, as amended hereby, either by
contractual obligation, assumption agreement or operation of law. Landlord shall not be required
to keep the Security Deposit separate from its other accounts. Tenant hereby waives the provisions
of Section 1950.7 of the California Civil Code, or any similar or successor Laws now or hereinafter
in effect.”



     III. Letter of Credit.



          A.
Increase to Original Letter of Credit. Landlord and Tenant hereby acknowledge and agree
that Landlord currently holds an Irrevocable Standby Letter of Credit, namely Letter of Credit No.
NY-00930-30030899 in the amount of $1,600,000.00 (the “Original Letter of Credit”), which Original
Letter of Credit was issued by Citibank, N.A. (the “LC Lender”). Upon Tenant’s execution hereof,
Tenant shall increase, by an amendment to the Original Letter of Credit in form and substance
satisfactory to Landlord, the face amount of the Original Letter of Credit from $1,600,000.00 to
$2,000,000.00 (“Letter of Credit Amount”) (the Original Letter of Credit, as amended hereby, shall
be referred to hereinafter as the “Letter of Credit”). Landlord shall hold the Letter of Credit as
collateral for the full performance by Tenant of all of its obligations under this Lease and for
all losses and damages Landlord may suffer as a result of any default by Tenant under this Lease,
including, but not limited to, any post lease termination damages under section 1951.2 of the
California Civil Code. Tenant shall cause the Letter of Credit to be continuously maintained in
effect (whether through replacement, renewal or extension) in the Letter of Credit Amount (through
the date (the “Final LC Expiration Date”) that is 60 days after the scheduled expiration
date of the Term or any renewal Term. If the Letter of Credit held by Landlord expires earlier
than the Final LC Expiration Date (whether by reason of a stated expiration date or a notice of
termination or non-renewal given by the issuing bank), Tenant shall deliver a new Letter of Credit
or certificate of renewal or extension to Landlord not later than 30 days prior to the expiration
date of the Letter of Credit then held by Landlord. Any renewal or replacement Letter of Credit
shall comply with all of the provisions of this Section III.A. and Exhibit F of the Lease, shall be
irrevocable, transferable and shall remain in effect (or be automatically renewable) through the
Final LC Expiration Date upon the same terms as the expiring Letter of Credit or such other terms
as may be acceptable to Landlord in its sole discretion.




          B. Drawings under Letter of Credit. Landlord shall have the immediate right to draw upon the
Letter of Credit, in whole or in part, at any time and from time to time: (i) If a default occurs
under the Lease, as amended hereby, and is not cured within any applicable notice or cure period,
such draw being in an amount reasonably necessary to cure such default; or (ii) If the Letter of
Credit held by Landlord expires earlier than the Final LC Expiration Date (whether by reason of a
stated expiration date or a notice of termination or non-renewal given by the issuing bank), and
Tenant fails to deliver to Landlord, at least 30 days prior to the expiration date of the Letter of
Credit then held by Landlord, a renewal or substitute Letter of Credit that is in effect and that
complies with the provisions of this Section III and Exhibit F of the Lease. No condition or




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term of this Lease shall be deemed to render the Letter of Credit conditional to justify the
issuer of the Letter of Credit in failing to honor a drawing upon such Letter of Credit in a timely
manner. Tenant hereby acknowledges and agrees that Landlord is entering into this Lease in
material reliance upon the ability of Landlord to draw upon the Letter of Credit upon the
occurrence of any default by Tenant under this Lease which continues beyond any applicable notice
or cure period, or upon the occurrence of any of the other events described above in this Section
III.B.



          C. Use of Proceeds by Landlord. The proceeds of the Letter of Credit shall constitute
Landlord’s sole and separate property (and not Tenant’s property or the property of Tenant’s
bankruptcy estate) and Landlord may immediately upon any draw in accordance with Section III.B.
above (and without notice to Tenant) apply or offset the proceeds of the Letter of Credit: (i)
against any Rent payable by Tenant under this Lease that is not paid when due; (ii) against all
losses and damages that Landlord has suffered or that Landlord reasonably estimates that it may
suffer as a result of any default by Tenant under this Lease, including any damages arising under
section 1951.2 of the California Civil Code following termination of the Lease; (iii) against any
costs incurred by Landlord in connection with the Lease (including attorneys’ fees) arising or
resulting from a default by Tenant under the Lease, as amended hereby; and (iv) against any other
amount that Landlord may spend or become obligated to spend by reason of Tenant’s default. In the
event Landlord draws on the Letter of Credit and holds proceeds thereof which exceed the amount
Landlord will apply to cure a default by Tenant, such unapplied proceeds (which need not be
segregated) shall be held as a Security Deposit pursuant to Article VI of the Lease, as amended
hereby. Tenant reserves the right to provide a replacement Letter of Credit covering such
unapplied proceeds. Tenant also reserves the right to substitute cash for the Letter of Credit at
any time during the Term of the Lease, provided Tenant obtains Landlord’s prior written consent,
which consent shall not be unreasonably withheld. Provided Tenant has performed all of its
obligations under this Lease, Landlord agrees to pay to Tenant within 30 days after the Final LC
Expiration Date the amount of any proceeds of the Letter of Credit received by Landlord and not
applied as allowed above; provided, that if prior to the Final LC Expiration Date a voluntary
petition is filed by Tenant or any Guarantor, or an involuntary petition is filed against Tenant or
any Guarantor by any of Tenant’s or Guarantor’s creditors, under the Federal Bankruptcy Code, then
Landlord shall not be obligated to make such payment in the amount of the unused Letter of Credit
proceeds until either all preference issues relating to payments under this Lease have been
resolved in such bankruptcy or reorganization case or such bankruptcy or reorganization case has
been dismissed, in each case pursuant to a final court order not subject to appeal or any stay
pending appeal.




          D.
Additional Covenants of Tenant. If, as result of any application or use by Landlord of all
or any part of the Letter of Credit, the amount of the Letter of Credit shall be less than the
Letter of Credit Amount, Tenant shall, within 5 days thereafter, provide Landlord with additional
letter(s) of credit in an amount equal to the deficiency (or a replacement letter of credit in the
total Letter of Credit Amount), and any such additional (or replacement) letter of credit shall
comply with all of the provisions of this Section III.D and Exhibit F of the Lease, and if Tenant
fails to comply with the foregoing, notwithstanding anything to the contrary contained in this
Lease, the same shall constitute an uncurable Default by Tenant. Tenant further covenants and
warrants that it will neither assign nor encumber the Letter of Credit or any part thereof and that
neither Landlord nor its successors or assigns will be bound by any such assignment, encumbrance,
attempted assignment or attempted encumbrance.




-4-









 








          E. Transfer of Letter of Credit. Landlord may, at any time and without notice to Tenant and
without first obtaining Tenant’s consent thereto, transfer all or any portion of its interest in
and to the Letter of Credit to another party, person or entity, including Landlord’s mortgagee
and/or to have the Letter of Credit reissued in the name of Landlord’s mortgagee. If Landlord
transfers its interest in the Building and transfers the Letter of Credit (or any proceeds thereof
then held by Landlord) in whole or in part to the transferee, Landlord shall, without any further
agreement between the parties hereto, thereupon be released by Tenant from all liability therefore,
provided that, any successor pursuant to a voluntary, third party transfer (but not as part of an
involuntary transfer resulting from a foreclosure or deed in lieu thereof) shall have assumed
Landlord’s obligations under the Lease, as amended hereby, either by contractual obligation,
assumption agreement or operation of law. The provisions hereof shall apply to every transfer or
assignment of all or any part of the Letter of Credit to a new landlord. In connection with any
such transfer of the Letter of Credit by Landlord, Tenant shall, at Tenant’s sole cost and expense,
execute and submit to the issuer of the Letter of Credit such applications, documents and
instruments as may be necessary to effectuate such transfer. Tenant shall be responsible for
paying the issuer’s transfer and processing fees in connection with any transfer of the Letter of
Credit and, if Landlord advances any such fees (without having any obligation to do so), Tenant
shall reimburse Landlord for any such transfer or processing fees within 10 days after Landlord’s
written request therefor.




          E. Reduction of Letter of Credit Amount. Subject to the remaining terms of this paragraph,
and provided Tenant has timely within any applicable cure period paid all Rent (including, without
limitation, all Deferred Rent) due under the Lease, as amended hereby, during the Deferral Period
and Payback Period, on or after December 16, 2004, Tenant shall have the right to reduce the Letter
of Credit Amount from $2,000,000.00 to $1,600,000.00. Notwithstanding anything to the contrary
contained herein, if Tenant has been in default under the Lease at any time during the Deferral
Period or Payback Period and Tenant has failed to cure such default within any applicable cure
period, then Tenant shall have no right to reduce the Letter of Credit Amount as described herein.
Any reduction in the Letter of Credit Amount shall be accomplished by Tenant providing Landlord
with a substitute or amended Letter of Credit in the reduced amount which satisfies the
requirements of the Letter of Credit as set forth in this Section III and Exhibit F of the Lease.




          F. Nature of Letter of Credit. Landlord and Tenant (1) acknowledge and agree that in no event
or circumstance shall the Letter of Credit or any renewal thereof or substitute therefor or any
proceeds thereof (excluding unapplied proceeds held as a Security Deposit pursuant to Section
III.C. above) be deemed to be or treated as a “security deposit” under any Law applicable to
security deposits in the commercial context including Section 1950.7 of the California Civil Code,
as such section now exist or as may be hereafter amended or succeeded” (“Security Deposit Laws”),
(2) acknowledge and agree that the Letter of Credit (including any renewal thereof or substitute
therefor or any proceeds thereof (excluding unapplied proceeds held as a Security Deposit pursuant
to Section III.C. above)) is not intended to serve as a security deposit, and the Security Deposit
Laws shall have no applicability or relevancy thereto, and (3) waive any and all rights, duties and
obligations either party may now or, in the future, will have relating to or arising from the
Security Deposit Laws.




-5-









 








     IV. Landlord Right to Provide Proposals for Future Space to Tenant. During the period
commencing as of the date of this Amendment and continuing through and including the expiration of
the 36th full calendar month thereafter (the “Exclusive Period”), to the extent that
Tenant or any of its subsidiaries have any facilities needs or other space requirements whatsoever
(a “Tenant Space Requirement”), Tenant hereby agrees to provide written notice to Landlord of such
Tenant Space Requirement as follows: (i) in the event the Tenant Space Requirement is less than
2,500 square feet, Tenant agrees to provide Landlord notice of such need at least fifteen (15) days
prior to soliciting proposals from or entering into a lease with another landlord; and (ii) in the
event the Tenant Space Requirement is for 2,500 square feet or more, Tenant agrees to provide
Landlord notice of such need at least thirty (30) days prior to soliciting proposals from or
entering into a lease with another landlord. The written notice to Landlord shall specify the
location, required usage, approximate size and lease term for the desired space (“Tenant Notice”).
Following delivery of the Tenant Notice, Landlord, at its option, may provide a written proposal of
Landlord’s or any of Landlord’s related parties’ available space reasonably fulfilling Tenant’s
Space Requirement. Tenant agrees to consider all such proposals presented by Landlord in good
faith but has no obligation to accept any such proposals. For purposes of clarity, Tenant has the
sole discretion in the acceptance of any proposals submitted by Landlord. In the event that Tenant
is acquired during the 36 month Exclusive Period, Tenant’s obligations thereafter under Section IV
hereof will be waived.



     V. Other Pertinent Provisions. Landlord and Tenant agree that, effective as of the date of
this Amendment, the Lease shall be amended in the following additional respects:



          A. Notice Addresses. The Landlord’s address set forth in the Basic Lease Information of the
Lease, is hereby deleted in its entirety and replaced with the following:



“To: Landlord

EOP-Shoreline Technology Park, L.L.C.

1740 Technology Drive, Suite 150

San Jose, California 95110

Attention: Shoreline Project Manager




               A copy of any notices to Landlord shall be sent to Equity Office, One Market Street, Spear
Tower, Suite 600, San Francisco, California 94105, Attn: San Jose Regional Counsel. Rent (as
defined in Section IV.A of the Lease) and all other sums payable by Tenant to Landlord pursuant to
the Lease, as amended hereby, shall be payable to the entity and sent to the address as Landlord
designates from time to time and shall be made by good and sufficient check or by other means
acceptable to Landlord.”



          B. Insurance.




               1. Clause (2) of Article XV of the Lease is hereby deleted in its entirety and replaced by the
following: “(2) Property/Business Interruption Insurance written on an All Risk or Special Perils
form, with coverage for broad form water damage including earthquake sprinkler leakage, at
replacement cost value and with a replacement cost endorsement covering all of Tenant’s business
and trade fixtures, equipment, movable partitions, furniture, merchandise and other personal
property within the Premises. Landlord agrees that Tenant’s existing coverage limit of



-6-









 





$5,000,000.00 with a $250,000.00 deductible for earthquake sprinkler leakage damage satisfies
the earthquake sprinkler leakage coverage requirement described in the preceding sentence.”



               2. Tenant shall provide Landlord with a certificate of insurance evidencing Tenant’s insurance
required pursuant to Article XV of the Lease, as amended hereby, upon delivery of this Amendment,
executed by Tenant, to Landlord, and thereafter as necessary to assure that Landlord always has
current certificates evidencing Tenant’s insurance.



               3. For purposes of clarity, Landlord agrees that Landlord shall continue to maintain standard
so called All Risk property insurance on the Building in an amount equal to 90% of the replacement
cost thereof at the time in question, as reasonably estimated by Landlord, in accordance with
Article XV of the Lease, as amended hereby.



     VI. Miscellaneous.



          A. This Amendment sets forth the entire agreement between the parties with respect to the
matters set forth herein. There have been no additional oral or written representations or
agreements.




          B. Except as herein modified or amended, the provisions, conditions and terms of the Lease
shall remain unchanged and in full force and effect.




          C. In the case of any inconsistency between the provisions of the Lease and this Amendment,
the provisions of this Amendment shall govern and control.




          D. Submission of this Amendment by Landlord is not an offer to enter into this Amendment but
rather is a solicitation for such an offer by Tenant. Landlord shall not be bound by this
Amendment until Landlord has executed and delivered the same to Tenant.




          E. The capitalized terms used in this Amendment shall have the same definitions as set forth
in the Lease to the extent that such capitalized terms are defined therein and not redefined in
this Amendment.




          F. Tenant hereby represents to Landlord that Tenant has dealt with no broker in connection
with this Amendment. Tenant agrees to indemnify and hold Landlord, its trustees, members,
principals, beneficiaries, partners, officers, directors, employees, mortgagee(s) and agents, and
the respective principals and members of any such agents (collectively, the “Landlord Related
Parties”) harmless from all claims of any brokers claiming to have represented Tenant in connection
with this Amendment. Landlord hereby represents to Tenant that Landlord has dealt with no broker
in connection with this Amendment. Landlord agrees to indemnify and hold Tenant, its trustees,
members, principals, beneficiaries, partners, officers, directors, employees, and agents, and the
respective principals and members of any such agents (collectively, the “Tenant Related Parties”)
harmless from all claims of any brokers claiming to have represented Landlord in connection with
this Amendment.




          G. Except to the extent required by any applicable Securities and Exchange Commission
requirements, or any applicable Federal or State securities laws (collectively, the




-7-









 





“Securities Laws”), Tenant agrees that neither Tenant nor its agents or any other parties
acting on behalf of Tenant shall disclose any matters set forth in this Amendment or disseminate or
distribute any information concerning the terms, details or conditions hereof (the “Information”)
to any person, firm or entity without obtaining the express written consent of Landlord and, if
Tenant is required by the Securities Laws to disclose any information contained in this Amendment,
Tenant will give Landlord written notice of such requirement promptly upon Tenant becoming aware of
same and in any event prior to making any disclosure pursuant thereto, and Tenant will provide such
assistance in seeking a protective order or other appropriate relief as Landlord may reasonably
request. If Landlord is unable to obtain a protective order or other remedy with respect to such
disclosure, Tenant (or such other persons to whom such disclosure request or requirement applies)
will disclose or otherwise furnish only the information legally required to be disclosed, as
advised by legal counsel, and such disclosure shall be made only to the necessary and appropriate
governmental entities. Notwithstanding the foregoing, Tenant may however, disclose the Information
to any of its directors, officers, partners, bona fide investors and bona fide prospective
investors, accountants, attorneys and financial advisors (collectively, Tenant’s
“Representatives”), but only if such Representatives reasonably need to know the Information in
connection with the ongoing financial affairs of Tenant or in connection with prospective
investment in or lending to the Tenant. Tenant shall (i) inform each of its Representatives
receiving the Information of the confidential nature of the Information and of this Amendment, (ii)
direct its Representatives to treat the Information confidentially and not to use it, and (iii) be
responsible for any liabilities of any kind or nature incurred by or on behalf of Landlord arising
out of, or as a result of, any improper use or disclosure of the Information by the Tenant, any of
its affiliates or Representatives or any other person or entity that may have gained access to the
Information directly or indirectly through or as a result of any disclosure by Tenant or any of its
affiliates or Representatives. Notwithstanding the foregoing, nothing in this Amendment shall
restrict a party (or any employee, representative, or other agent of a party) from disclosure to
any and all persons, without limitation of any kind, of the tax treatment and tax structure of any
transaction contemplated by this Amendment and all materials of any kind (including opinions and
tax analysis) that are provided to a party relating to such tax treatment and tax structure.



          H. Equity Office Properties Management Corporation (“EOPMC”) is an affiliate of Landlord and
represents only Landlord in this transaction. Any assistance rendered by any agent or employee of
EOPMC in connection with this Amendment has been made as an accommodation to Tenant solely in
furtherance of consummating the transaction on behalf of Landlord and not as agent for Tenant.




-8-









 








     IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Amendment as of the day and
year first above written.



	 	 	 
	 

	 	LANDLORD:
	 
	 	 
	 

	 	CA-SHORELINE TECHNOLOGY PARK LIMITED PARTNERSHIP, a

Delaware limited partnership
	 
	 	 
	 

	 	By: EOM GP, L.L.C., a Delaware limited liability
company, its general partner






	 	 	 	 	 	 	 	 	 
	 	 	By: Equity Office Management, L.L.C., a Delaware
limited liability company, its non-member manager	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	/s/ Richard Scott 	 	 
	 

	 	 	 	Name:
	 	 

Richard Scott
	 	 
	 

	 	 	 	Title:
	 	Regional Vice President-Leasing	 	 






	 	 	 
	 

	 	TENANT:
	 
	 	 
	 

	 	PERLEGEN SCIENCES, INC., a Delaware corporation






	 	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	/s/ Brad Margus 	 	 
	 

	 	 	 	Name:
	 	 

Brad Margus
	 	 
	 

	 	 	 	Title:
	 	President and Chief Executive Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	77-0556076	 	 
	 	 	 	 	 	 	 
	 	 	 	 	Tenant’s Tax ID Number (SSN or FEIN)	 	 






-9-









 











June 28, 2005




Perlegen Sciences, Inc.

Richard Galvez

2021 Stierlin Court

Mountain View, CA 94043




     Re:
Sale of Shoreline Technology Park, Mountain View,
California (the “Property”)



Dear Richard:




     This is to notify you that the Property has been sold to affiliates of SLOUGH ESTATES USA
INC. Any security or other deposits and any prepaid rents under your lease have been
transferred to the new owner.



     Effective immediately, all rental payments should be made payable to Britannia Hacienda VIII,
LLC. Payments, notices to the Landlord, and correspondence pursuant to your lease should be mailed
to the following address:


Britannia Hacienda VIII, LLC

c/o Britannia Management Services, Inc

555 12th Street, Suite 1650

Oakland, CA 94607




     You may contact the new owner at 510-834-7116 and may use Ann Nelson, Senior Property Manager,
as a point of contact.



	 	 	 	 	 	 	 
	 	 	Very truly yours,	 	 
	 
	 	 	 	 	 	 
	 	 	CA-SHORELINE
TECHNOLOGY PARK LIMITED PARTNERSHIP, a Delaware limited partnership	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Equity Office Management, L.L.C., a Delaware
limited liability company, as agent for Owner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

 
	 	/s/ Denise Rock
 

Name: Denise Rock
	 	 
	 

	 	 	 	Its: Authorized Signatory