Exhibit 10.76


 


PENINSULA OFFICE PARK

PENINSULA OFFICE PARK BUILDING 4

SAN MATEO, CALIFORNIA


 


 


OFFICE LEASE AGREEMENT


 


 


BETWEEN


 


 


EOP-PENINSULA OFFICE PARK, L.L.C., a Delaware limited
liability company


(“LANDLORD”)


 


 


AND


 


 


LIBERATE TECHNOLOGIES, a Delaware corporation


(“TENANT”)


 

















 


OFFICE LEASE AGREEMENT


 


THIS OFFICE LEASE AGREEMENT (the “Lease”)
is made and entered into as of the 12th day of December, 2003, by and between EOP-PENINSULA OFFICE PARK, L.L.C., a Delaware limited
liability company (“Landlord”)
and LIBERATE TECHNOLOGIES, a Delaware
corporation (“Tenant”).  The following exhibits and attachments are
incorporated into and made a part of the Lease: Exhibit A (Outline and Location of Premises), Exhibit B (Expenses and Taxes), Exhibit C (Work Letter), Exhibit D (Commencement Letter), Exhibit E (Building Rules and Regulations),
Exhibit F (Additional Provisions),
Exhibit G (Parking Agreement), Exhibit H (Asbestos Notification) and Exhibit I (Form of Letter of Credit).


 


1.     Basic Lease Information.


 


1.01                 “Building” shall mean the building located
at 2655 Campus Drive, San Mateo, California, commonly known as Peninsula Office
Park Building 4.  “Rentable Square Footage of the Building” is
deemed to be 49,925 square feet.


 


1.02                 “Premises” shall mean the area shown on Exhibit A to this Lease.  The Premises is located on the 2nd
floor and known as suite 250. If the Premises include one or more floors in
their entirety, all corridors and restroom facilities located on such full
floor(s) shall be considered part of the Premises. The “Rentable Square Footage of the Premises” is
deemed to be 15,011 square feet.
Landlord and Tenant stipulate and agree that the Rentable Square Footage of the
Building and the Rentable Square Footage of the Premises are correct.


 


1.03                 “Base Rent”:


 


	
  Months of
  Term

  	
   

  	
  Annual
  Rate

  Per Square Foot

  	
   

  	
  Monthly

  Base Rent

  	
   

  
	
  1 - 12

  	
   

  	
  $

  	
  21.00

  	
   

  	
  $

  	
  26,269.25

  	
   

  
	
  13 - 24

  	
   

  	
  $

  	
  21.60

  	
   

  	
  $

  	
  27,019.80

  	
   

  
	
  25 - 36

  	
   

  	
  $

  	
  22.20

  	
   

  	
  $

  	
  27,770.35

  	
   

  
	
  37 - 48

  	
   

  	
  $

  	
  22.80

  	
   

  	
  $

  	
  28,520.90

  	
   

  
	
  49 – 60

  	
   

  	
  $

  	
  23.40

  	
   

  	
  $

  	
  29,271.45

  	
   

  



 


1.04                 “Tenant’s Pro Rata Share”: 30.0671%.


 


1.05                 “Base Year” for Taxes (defined in Exhibit B):  2004; “Base Year”
for Expenses (defined in Exhibit B):  2004.  


 


1.06                 “Term”: A period of 60 months.  Subject to Section 3, the Term shall
commence on March 1, 2004 (the “Commencement
Date”) and, unless terminated early in accordance with this Lease,
end on February 28, 2009 (the “Termination
Date”).


 


1.07                 Allowance:
$337,747.00, as more fully described in the Work Letter attached hereto as Exhibit C.


 


1.08                 “Security Deposit”:  None.


 


1.09                 “Guarantor(s)”:  As of the date of this Lease, there are no Guarantors.


 


1.10                 “Broker”: 
Julien J. Studley, Inc.


 


1.11                 “Permitted Use”: General office use;
provided in no event shall the Premises, or any portion of the Premises, be
used for the sale of food from the Premises to the public.


 


1

















 


1.12                 “Notice Address(es)”:


 


	
  Landlord:

  	
   

  	
  Tenant:

  
	
   

  	
   

  	
   

  
	
  EOP-Peninsula Office Park,
  L.L.C.

  	
   

  	
  The Premises

  
	
  c/o Equity Office
  Management, L.L.C.

  	
   

  	
  Attention:

  
	
  950 Tower Lane, Suite 950

  Foster City, California  94404

  Attn:  Property Manager - Peninsula
  Office

  Park Building 4

  	
   

  	
   

  



 


A
copy of any notices to Landlord shall be sent to Equity Office, One Market,
Spear Tower, Suite 600, San Francisco, California, 94105, Attention: San
Francisco Regional Counsel.


 


1.13                 “Business Day(s)” are Monday through Friday
of each week, exclusive of New Year’s Day, Presidents Day, Memorial Day,
Independence Day, Labor Day, Thanksgiving Day and Christmas Day (“Holidays”).  Landlord may designate additional Holidays that are commonly
recognized by other office buildings in the area where the Building is
located.  “Building Service Hours” are 7:00 a.m. to 6:00 p.m. on Business
Days.


 


1.14                 “Landlord Work” means the work that Landlord
is obligated to perform in the Premises pursuant to a separate agreement (the “Work Letter”) attached to this Lease as Exhibit C.


 


1.15                 “Property” means the Building and the
parcel(s) of land on which it is located and, at Landlord’s discretion, the
parking facilities and other improvements, if any, serving the Building and the
parcel(s) of land on which they are located.


 


1.16                 “Letter of Credit”:  $972,712.80,
as more fully described in Section 2 of Exhibit
F.


 


2.     Lease Grant.


 


The
Premises are hereby leased to Tenant from Landlord, together with the right to
use any portions of the Property that are designated by Landlord for the common
use of tenants and others (the “Common Areas”)
for the Term.


 


3.     Adjustment of Commencement Date; Possession.


 


3.01
If Landlord is required to perform Landlord Work prior to the Commencement
Date: (a) the date set forth in Section 1.06 as the Commencement Date shall
instead be defined as the “Target
Commencement Date”; (b) the actual Commencement Date shall be the
date on which the Landlord Work is Substantially Complete (defined below); and
(c) the Termination Date will be the last day of the Term as determined based
upon the actual Commencement Date. 
Landlord’s failure to Substantially Complete the Landlord Work by the
Target Commencement Date shall not be a default by Landlord or otherwise render
Landlord liable for damages. Promptly after the determination of the
Commencement Date, Landlord and Tenant shall enter into a commencement letter
agreement in the form attached as Exhibit D.  If the Termination Date does not fall on the
last day of a calendar month, Landlord and Tenant may elect to adjust the
Termination Date to the last day of the calendar month in which Termination
Date occurs by the mutual execution of a commencement letter agreement setting
forth such adjusted date.  The Landlord
Work shall be deemed to be “Substantially
Complete” on the later of (i) date that all Landlord Work has been
performed, other than any details of construction, mechanical adjustment or any
other similar matter, the non-completion of which does not materially interfere
with Tenant’s use of the Premises, and (ii) the date Landlord receives from the
appropriate governmental authorities, with respect to the Landlord Work
performed by Landlord or its contractors in the Premises, all approvals
necessary for the occupancy of the Premises.   If Landlord is delayed in the performance of
the Landlord Work as a result of the acts or omissions of Tenant, the Tenant
Related Parties (defined in Section 13) or their respective contractors or
vendors, including, without limitation, changes requested by Tenant to approved
plans, Tenant’s failure to comply with any of its obligations under this Lease,
or the specification of any materials or equipment with long lead times that
Landlord has informed Tenant will cause a delay in the Landlord Work and which
Tenant thereafter has requested (or continues to request) be included in the
Landlord Work (a “Tenant Delay”),
the Landlord Work shall be deemed to be Substantially Complete on the date that
Landlord could reasonably have been expected to Substantially Complete the
Landlord Work absent any Tenant Delay.


 


3.02
Subject to Landlord’s obligation to perform the Landlord Work, the Premises are
accepted by Tenant in “as is” condition and configuration without any
representations or warranties by Landlord. By taking possession of the
Premises, Tenant agrees that the Premises are in good order and satisfactory


 


2

















 


condition, subject to Landlord’s specific
obligations set forth below in this Section 3.02. Tenant’s acceptance of the
Premises shall be subject to Landlord’s obligation to correct portions of the
Landlord Work as set forth on a construction punch list prepared by Landlord
and Tenant in accordance with the terms hereof.  Within 15 days after Substantial Completion of the Landlord Work,
Landlord and Tenant shall together conduct an inspection of the Premises and
prepare a “punch list” setting forth any portions of the Landlord Work that are
not in conformity with the Landlord Work as required by the terms of this
Lease.  Notwithstanding the foregoing,
at the request of Landlord, such construction punch list shall be mutually prepared
by Landlord and Tenant prior to the date on which Tenant first begins to move
its furniture, equipment or other personal property into the Premises.  Landlord, as part of the Landlord Work,
shall use good faith efforts to correct all such items within a reasonable time
following the completion of the punch list. 
In addition to the  foregoing,
Tenant shall have eleven (11) months from the completion of Landlord Work in
which to discover and notify Landlord of any latent defects in the Landlord
Work.  Landlord shall be responsible for
the correction of any such latent defects with respect to which it received
timely notice from Tenant.  Landlord shall not be liable for
a failure to deliver possession of the Premises or any other space due to the
holdover or unlawful possession of such space by another party, however
Landlord shall use reasonable efforts to obtain possession of the space.  The commencement date for the space, in such
event, shall be postponed until the date Landlord delivers possession of the
Premises to Tenant free from occupancy by any party. If Tenant takes possession
of the Premises before the Commencement Date, such possession shall be subject
to the terms and conditions of this Lease and Tenant shall pay Rent (defined in
Section 4.01) to Landlord for each day of possession before the Commencement
Date.  However, except for the cost of
services requested by Tenant (e.g. freight elevator usage), Tenant shall not be
required to pay Rent for any days of possession before the Commencement Date
during which Tenant, with the approval of Landlord, is in possession of the
Premises for the sole purpose of performing improvements or installing
furniture, equipment or other personal property. Specifically, subject to the
terms of this Section 3.02, Landlord grants Tenant the right to enter the
Premises, at Tenant’s sole risk, fifteen (15) days prior to Landlord’s then
current estimate of the Commencement Date solely for the purpose of installing
telecommunications and data cabling, equipment, furnishings and other
personalty in the Premises. Landlord may withdraw such permission to enter the
Premises prior to the Commencement Date at any time that Landlord reasonably
determines that such entry by Tenant is causing a dangerous situation for
Landlord, Tenant or their respective contractors or employees, or if Landlord
reasonably determines that such entry by Tenant is hampering or otherwise
preventing Landlord from proceeding with the completion of the Landlord Work at
the earliest possible date.


 


3.03  Notwithstanding
the foregoing, if the Commencement Date has not occurred on or before the
Required Completion 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 Completion 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, so long as Tenant has not previously defaulted
under any of its obligations under the Work Letter, the parties hereto shall
have no further responsibilities or obligations to each other with respect to
this Lease.  The “Required Completion Date” shall mean the
date which is 180 days after the Target Commencement Date.  Landlord and Tenant acknowledge and agree
that: (i) the determination of the Commencement Date shall take into
consideration the effect of any Tenant Delays; and (ii) the Required Completion
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 Completion Date, Landlord shall have the right to immediately
cease its performance of the Landlord Work and provide Tenant with written
notice (the “Completion Date Extension Notice”)
of such inability, which Completion Date Extension Notice shall set forth the
date on which Landlord reasonably believes that the Commencement Date will
occur.  Upon receipt of the Completion
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 Completion Date Extension Notice.  If Tenant does not terminate this Lease
within such 5 Business Day period, the Required Completion Date automatically
shall be amended to be the date set forth in Landlord’s Completion Date
Extension Notice.


 


4.     Rent.


 


4.01  Tenant shall pay Landlord, without any
setoff or deduction, unless expressly set forth in this Lease, all Base Rent
and Additional Rent due for the Term (collectively referred to as “Rent”). “Additional
Rent” means all sums (exclusive of Base Rent) that Tenant is
required to pay Landlord under this Lease. To the extent of any Tax Excess (as
defined in Exhibit B), Tenant
shall pay and be liable for all rental, sales and use taxes (but excluding
income taxes), if any, imposed upon or measured by 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, and the first monthly
installment of Additional Rent for Expenses and Taxes, shall be payable upon
the execution of this Lease by Tenant. 
All other


 


3

















 


items of Rent shall be due and payable by
Tenant on or before 30 days after billing by Landlord.  Rent shall be made payable to the entity,
and sent to the address, Landlord designates and shall be made by good and sufficient
check or by other means acceptable to Landlord.  Tenant shall pay Landlord an administration fee equal to 5% of
all 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 calendar year. In addition,
past due Rent shall accrue interest at 12% per annum. Landlord’s acceptance of
less than the correct amount of Rent shall be considered a payment on account
of the earliest Rent due. Rent for any partial month during the Term shall be
prorated. No endorsement or statement on a check or letter accompanying payment
shall be considered an accord and satisfaction.  Tenant’s covenant to pay Rent is independent of every other
covenant in this Lease.


 


4.02  Tenant shall pay Tenant’s Pro Rata Share of
any Tax Excess and Expense Excess as defined in and in accordance with Exhibit B of this Lease.


 


5.     Compliance with Laws; Use.


 


The
Premises shall be used for the Permitted Use and for no other use whatsoever.
Tenant shall comply with all statutes, codes, ordinances, orders, rules and
regulations of any municipal or governmental entity whether in effect now or
later, including the Americans with Disabilities Act (“Law(s)”), regarding the operation of
Tenant’s business and the use, condition, configuration and occupancy of the
Premises.  Notwithstanding anything in
the foregoing to the contrary, Landlord, at its sole cost and expense, shall be
responsible for correcting any violations of Title III of the Americans with
Disabilities Act or of applicable building or fire codes with respect to the
Premises to the extent that such 
violations arise out of the Landlord Work or the condition of the
Premises prior to the Landlord Work, and prior to the installation of any
furniture, equipment and other personal property of Tenant.  Landlord shall have the right to contest any
alleged violation in good faith, including, without limitation, the right to
apply for and obtain a waiver or deferment of compliance, the right to assert
any and all defenses allowed by Law and the right to appeal any decisions,
judgments or rulings to the fullest extent permitted by Law.  Landlord, after the exhaustion of any and
all rights to appeal or contest, will make all repairs, additions, alterations
or improvements necessary to comply with the terms of any final order or
judgment. Notwithstanding the foregoing, Tenant, not Landlord, shall be
responsible for the correction of any violations in the Premises that arise out
of or in connection with any claims brought under any provision of the Americans
with Disabilities Act other than Title III, the specific nature of Tenant’s
business in the Premises (other than general office use), the acts or omissions
of Tenant, its agents, employees or contractors, Tenant’s arrangement of any
furniture, equipment or other property in the Premises, any repairs,
alterations, additions or improvements performed by or on behalf of Tenant
(other than the Landlord Work) and any design or configuration of the Premises
specifically requested by Tenant after being informed that such design or
configuration may not be in strict compliance with the ADA.  In
addition, Tenant, at its sole cost and expense, shall promptly comply with any
Laws that relate to the “Base Building” (defined below), but only to the extent
such obligations are triggered by Tenant’s use of the Premises, other than for
general office use, or Alterations or improvements in the Premises performed or
requested by Tenant other than the Landlord Work.  “Base Building”
shall include the structural portions of the Building, the public restrooms and
the Building mechanical, electrical and plumbing systems and equipment located
in the internal core of the Building on the floor or floors on which the
Premises are located.  Tenant shall
promptly provide Landlord with copies of any notices it receives regarding an
alleged violation of Law.  Tenant shall
comply with the rules and regulations of the Building attached as Exhibit E and such other reasonable rules
and regulations adopted by Landlord from time to time, including rules and
regulations for the performance of Alterations (defined in Section 9).  The rules and regulations shall be generally
applicable, and generally applied in the same manner, to all tenants of the Building.


 


6.             Security Deposit.


 


The
Security Deposit, if any, shall be delivered to Landlord upon the execution of
this Lease by Tenant and 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 damages.  Landlord may use all or a portion of the
Security Deposit to satisfy past due Rent or to cure any Default (defined in
Section 18) by Tenant.  If Landlord uses
any portion of the Security Deposit, Tenant shall, within 5 days after 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: (a) determination of the final Rent due from Tenant; or (b)
the later to occur of the Termination Date or the date Tenant surrenders the
Premises to Landlord in compliance with Section 25. Landlord may assign the
Security Deposit to a successor or 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.


 


4

















 


7.             Building Services.


 


7.01  Landlord shall furnish Tenant with the
following services: (a) water for use in the Base Building lavatories and for any
fixtures located within the Premises (subject to Landlord’s approval of the
installation thereof pursuant to Section 9 with respect to any such fixtures
installed after the date of this Lease other than pursuant to the Landlord
Work) for the use of Tenant’s employees (for example, without limitation,
drinking fountains and fixtures and equipment that may be found in a
kitchenette breakroom area, such as a sink, icemaker, dishwasher, and water
lines to a refrigerator; collectively, the “Breakroom
Fixtures”).  However, Tenant
shall be responsible, at Tenant’s cost, for the repair and maintenance of the
water line(s) and fixtures within the Premises relating to any Breakroom
Fixtures; (b) heat, ventilation and air conditioning in season, in accordance
with applicable Laws and as is then customarily provided in buildings of
similar class and in the same market area as the Building, during Building
Service Hours. Tenant shall have the right to receive HVAC service during hours
other than Building Service Hours by paying Landlord’s then standard charge for
additional HVAC service and providing such prior notice as is reasonably
specified by Landlord.  As of the date
hereof, Landlord’s charge for after hours heating and air conditioning service
is $65.00 per hour, subject to change from time to time.  Landlord specifically agrees that any
increases in such charge for after-hours HVAC service shall be limited to
increases in Landlord’s actual, reasonable costs of supplying the after-hours
HVAC services; (c) standard janitorial service on Business Days; (d) Elevator
service; (e) Electricity in accordance with the terms and conditions in Section
7.02; and (f) such other services as Landlord reasonably determines are
necessary or appropriate for the Property.


 


7.02
Electricity used by Tenant in the Premises shall be paid for by Tenant through
inclusion in Expense Excess (as defined in Exhibit
B), if any, and except as provided below for excess usage. Without
the consent of Landlord, Tenant’s use of electrical service shall not exceed,
either in voltage, rated capacity, or overall load, that which Landlord
reasonably deems to be standard for the Building on a Rentable Square Footage
basis, consistently applied to all tenants of the Building. Landlord shall have
the right to measure electrical usage by commonly accepted methods. If it is
determined that Tenant is using excess electricity, Tenant shall pay Landlord
for the cost of such excess electrical usage as Additional Rent.


 


7.03  Landlord’s failure to furnish, or any interruption,
diminishment or termination of services due to the application of Laws, the
failure of any equipment, the performance of repairs, improvements or
alterations, utility interruptions or the occurrence of an event of Force
Majeure (defined in Section 26.03) (collectively 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, are
made untenantable for a period in excess of 3 consecutive Business Days as a
result of a Service Failure that is reasonably within the control of Landlord
to correct, then Tenant, as its sole remedy, shall be entitled to receive an
abatement of Rent payable hereunder during the period beginning on the 4th
consecutive Business Day of the Service Failure and ending on the day the
service has been restored.  If the
entire Premises have not been rendered untenantable by the Service Failure, the
amount of abatement shall be equitably prorated.


 


8.             Leasehold Improvements.


 


All
improvements in and to the Premises, including any Alterations (collectively, “Leasehold Improvements”) shall remain upon
the Premises at the end of the Term without compensation to Tenant.  Landlord, however, by written notice to
Tenant at least 30 days prior to the Termination Date, may require Tenant, at
its expense, to remove (a) any Cable (defined in Section 9.01) installed by or
for the benefit of Tenant, and (b) any Alterations other than the Landlord Work
that, 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 office improvements (collectively
referred to as “Required Removables”),
except for Cable or Alterations that Landlord has not deemed to be Required
Removables following Tenant’s request for determination at the time of approval
of such Alteration, as set forth below. 
Required Removables shall include, without limitation, internal
stairways, raised floors, personal baths and showers, vaults, rolling file
systems and structural alterations and modifications. The designated Required
Removables shall be removed by Tenant before the Termination Date. Tenant shall
repair damage caused by the installation or removal of Required
Removables.  If Tenant fails to perform
its obligations in a timely manner, Landlord may perform such work at Tenant’s
expense. Tenant, at the time it requests approval for a proposed Alteration,
may request in writing that Landlord advise Tenant whether the Alteration or
any portion of the Alteration is 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 are Required Removables.


 


5

















 


9.             Repairs and Alterations.


 


9.01
Tenant shall periodically inspect the Premises to identify any conditions that
are dangerous or in need of maintenance or repair.  Tenant shall promptly provide Landlord with notice of any such
conditions. Tenant shall, at its sole cost and expense, perform all maintenance
and repairs to the Premises that are not Landlord’s express responsibility
under this Lease, and keep the Premises in good condition and repair,
reasonable wear and tear excepted. Tenant’s repair and maintenance obligations
include, without limitation, repairs to: (a) floor covering; (b) interior partitions;
(c) doors; (d) the interior side of demising walls; (e) electronic, phone and
data cabling and related equipment that is installed by or for the exclusive
benefit of Tenant (collectively, “Cable”);
(f) supplemental air conditioning units, kitchens, including hot water heaters,
plumbing, and similar facilities exclusively serving Tenant; and (g)
Alterations. To the extent Landlord is not reimbursed by insurance proceeds,
Tenant shall reimburse Landlord for the cost of repairing damage to the Building
caused by the acts of Tenant, Tenant Related Parties and their respective
contractors and vendors. If Tenant fails to make any repairs to the Premises
for more than 15 days after notice from Landlord (although notice shall not be
required in an emergency), and provided if such repairs cannot reasonably be
cured within 15 days, Tenant shall be allowed additional time (not to exceed 30
days) as is reasonably necessary to make the repairs so long as Tenant begins
the repairs within 15 days and diligently pursues the cure to completion, then
Landlord may make the repairs, and Tenant shall pay the reasonable cost of the
repairs, together with an administrative charge in an amount equal to 10% of
the cost of the repairs.


 


9.02
Landlord shall keep and maintain in good repair and working order and perform
maintenance upon the: (a) structural elements of the Building; (b) mechanical
(including HVAC), electrical, plumbing and fire/life safety systems serving the
Building in general; (c) Common Areas; (d) roof of the Building; (e) exterior
windows of the Building; and (f) elevators serving the Building. Landlord shall
promptly make repairs for which Landlord is responsible.  Tenant hereby waives any and all rights
under and benefits of subsection 1 of Section 1932, and Sections 1941 and 1942
of the California Civil Code, or any similar or successor Laws now or
hereinafter in effect.


 


9.03
Tenant shall not make alterations, repairs, additions or improvements or
install any Cable (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”): 
(a) is of a cosmetic nature such as painting, wallpapering, hanging
pictures and installing carpeting; (b) is not visible from the exterior of the
Premises or Building; (c) will not affect the Base Building; and (d) does not
require work to be performed inside the walls or above the ceiling of the
Premises.  Cosmetic Alterations shall be
subject to all the other provisions of this Section 9.03.  Prior
to starting work, Tenant shall furnish Landlord with plans and specifications;
names of contractors reasonably acceptable to Landlord (provided that Landlord
may designate specific contractors with respect to Base Building); required
permits and approvals; evidence of contractor’s and subcontractor’s insurance
in amounts reasonably required by Landlord and naming Landlord as an additional
insured; and any security for performance in amounts reasonably required by
Landlord.  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 reasonably approved by Landlord. Tenant shall reimburse Landlord for
any sums paid by Landlord for third party examination of Tenant’s plans for
non-Cosmetic Alterations.  In addition,
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 Alterations.  Upon completion, Tenant shall furnish
marked-up plans clearly showing all changes and revisions to the original plans
submitted to Landlord  for
non-Cosmetic Alterations, completion affidavits and full and final waivers of
lien. Landlord’s approval of an Alteration shall not be deemed a representation
by Landlord that the Alteration complies with Law.


 


10.          Entry by Landlord.


 


Landlord
may enter the Premises to inspect, show or clean the Premises or to perform or
facilitate the performance of repairs, alterations or additions to the Premises
or any portion of the Building.  Except
in emergencies or to provide Building services, Landlord shall provide Tenant
with reasonable prior verbal notice of entry and shall use reasonable efforts
to minimize any interference with Tenant’s use of the Premises.  If reasonably necessary, Landlord may
temporarily close all or a portion of the Premises to perform repairs,
alterations and additions.  However,
except in emergencies, Landlord will not close the Premises if the work can
reasonably be completed on weekends and after Building Service Hours.  Entry by Landlord shall not constitute a
constructive eviction or entitle Tenant to an abatement or reduction of Rent.


 


11.          Assignment and Subletting.


 


11.01  Except in connection with a Permitted
Transfer (defined in Section 11.04), Tenant shall not assign, sublease,
transfer or encumber any interest in this Lease or allow any third party to use
any


 


6

















 


portion of the Premises (collectively or
individually, a “Transfer”)
without the prior written consent of Landlord, which consent shall not be
unreasonably withheld, conditioned or delayed if Landlord does not exercise its
recapture rights under Section 11.02. 
If the entity which controls the voting shares/rights of Tenant changes
at any time, such change of ownership or control shall constitute a Transfer
unless Tenant is an entity whose outstanding stock is listed on a recognized
securities exchange or if at least 80% of its voting stock is owned by another
entity, the voting stock of which is so listed.  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
Section is voidable by Landlord. In no event shall any Transfer, including a
Permitted Transfer, release or relieve Tenant from any obligation under this
Lease.


 


11.02  Tenant shall provide Landlord with financial
statements for the proposed transferee, a fully executed copy of the proposed
assignment, sublease or other Transfer documentation and such other information
as Landlord may reasonably request. Within 15 Business Days after receipt of
the required information and documentation, Landlord shall either: (a) consent
to the Transfer by execution of a consent agreement in a form reasonably
designated by Landlord; (b) reasonably refuse to consent to the Transfer in
writing, stating Landlord’s reason(s) for such refusal; or (c) in the event of
an assignment of this Lease or subletting of more than 50% of the Rentable Area
of the Premises for more than 50% of the remaining Term (excluding unexercised
options), recapture the portion of the Premises that Tenant is proposing to
Transfer. If Landlord exercises its right to recapture, this Lease shall
automatically be amended (or terminated if the entire Premises is being
assigned or sublet) to delete the applicable portion of the Premises effective
on the proposed effective date of the Transfer.  Tenant shall pay Landlord a review fee of $1,000.00 for
Landlord’s review of any Permitted Transfer or requested Transfer.


 


11.03  Tenant shall pay Landlord 50% of 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.  Tenant
shall pay Landlord for Landlord’s share of the excess within 30 days after
Tenant’s receipt of the excess, provided that Tenant may first deduct from the
excess all reasonable and customary expenses directly incurred by Tenant
attributable to the Transfer.  If Tenant
is in Default, 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 Tenant’s share of payments received by Landlord.


 


11.04
Tenant may assign this Lease to a successor to Tenant by purchase, merger,
consolidation or reorganization (an “Ownership
Change”) or assign this Lease or sublet all or a portion of the
Premises to an Affiliate without the consent of Landlord, provided that all of
the following conditions are satisfied (a “Permitted
Transfer”):  (a) Tenant is
not in Default; (b) in the event of an Ownership Change, Tenant’s successor
shall own substantially all of the assets of Tenant and have a net worth which
is at least equal to Tenant’s net worth as of the day prior to the proposed
Ownership Change; (c) the Permitted Use does not allow the Premises to be used
for retail purposes; and (d) Tenant shall give Landlord written notice at least
15 Business Days prior to the effective date of the Permitted Transfer.
Tenant’s notice to Landlord shall include information and documentation
evidencing the Permitted Transfer and showing that each of the above conditions
has been satisfied.  If requested by
Landlord, Tenant’s successor shall sign a commercially reasonable form of
assumption agreement. “Affiliate”
shall mean an entity controlled by, controlling or under common control with
Tenant.


 


12.          Liens.


 


Tenant
shall not permit mechanics’ or other liens to be placed upon the Property,
Premises or Tenant’s leasehold interest in connection with any work or service
done or purportedly done by or for the benefit of Tenant or its
transferees.  Tenant shall give Landlord
notice at least 15 days prior to the commencement of any work in the Premises
to afford Landlord the opportunity, where applicable, to post and record
notices of non-responsibility. Tenant, within 10 days of notice from Landlord,
shall fully discharge any lien by settlement, by bonding or by insuring over
the lien in the manner prescribed by the applicable lien Law.  If Tenant fails to do so, Landlord may bond,
insure over or otherwise discharge the lien. 
Tenant shall reimburse Landlord for any amount paid by Landlord,
including, without limitation, reasonable attorneys’ fees.


 


13.          Indemnity and Waiver of
Claims.


 


Tenant
hereby waives all claims against and releases Landlord and its trustees,
members, principals, beneficiaries, partners, officers, directors, employees,
Mortgagees (defined in Section 23) and agents (the “Landlord Related Parties”) from all claims for any injury to
or death of persons, damage to property or business loss in any manner related
to (a) Force Majeure, (b) acts of third parties, (c) the bursting or leaking of
any tank, water closet, drain or other pipe, (d) the inadequacy or failure of
any security services, personnel or equipment,or (e) any matter not within the reasonable control of


 


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Landlord. Except to the extent caused by the
negligence or willful misconduct of Landlord or any Landlord Related Parties,
Tenant shall indemnify, defend and hold Landlord and 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) (collectively referred to as “Losses”), which may be imposed upon, incurred by or asserted
against Landlord or any of the Landlord Related Parties by any third party 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 or any of Tenant’s transferees, contractors or
licensees.  Except to the extent caused
by the negligence or willful misconduct of Tenant or any Tenant Related
Parties, 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 Losses which may be imposed upon, incurred by or
asserted against Tenant or any of the Tenant Related Parties by any third party
and arising out of or in connection with the acts or omissions (including
violations of Law) of Landlord or the Landlord Related Parties.


 


14.          Insurance.


 


Tenant
shall maintain the following insurance (“Tenant’s
Insurance”):  (a) Commercial
General Liability Insurance applicable to the Premises and its appurtenances
providing, on an occurrence basis, a minimum combined single limit of
$2,000,000.00; (b)  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 (“Tenant’s Property”) and any Leasehold
Improvements performed by or for the benefit of Tenant; (c) Workers’
Compensation Insurance in amounts required by Law; and (d) Employers Liability
Coverage of at least $1,000,000.00 per occurrence.  Any company writing Tenant’s Insurance shall have an A.M. Best
rating of not less than A-VIII.  All
Commercial General Liability Insurance policies shall name as additional
insureds Landlord (or its successors and assignees), the managing agent for the
Building (or any successor), EOP Operating Limited Partnership, Equity Office
Properties Trust and their respective members, principals, beneficiaries,
partners, officers, directors, employees, and agents (so long as such entities
have a direct or indirect ownership interest or management position in the
Building), and other designees of Landlord and its successors as the interest
of such designees shall appear. 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 cancellation, termination,
material change 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, and thereafter as necessary to assure that Landlord always has
current certificates evidencing Tenant’s Insurance. So long as the same is
available at commercially reasonable rates, Landlord shall maintain so called
All Risk property insurance on the Building at replacement cost value as
reasonably estimated by Landlord.


 


15.          Subrogation.


 


Landlord
and Tenant hereby waive and shall cause their respective insurance carriers to
waive any and all rights of recovery, claims, actions or causes of action
against the other for any loss or damage with respect to Tenant’s Property,
Leasehold Improvements, the Building, the Premises, or any contents thereof,
including rights, claims, actions and causes of action based on negligence,
which loss or damage is (or would have been, had the insurance required by this
Lease been carried) covered by insurance.


 


16.          Casualty Damage.


 


16.01  If all or any portion of the Premises
becomes untenantable by fire or other casualty to the Premises (collectively a
“Casualty”), Landlord, with
reasonable promptness, shall cause a general contractor selected by Landlord to
provide Landlord and Tenant with a written estimate of the amount of time
required using standard working methods to Substantially Complete the repair
and restoration of the Premises for Tenant’s Permitted Use and of any Common
Areas necessary to provide access to the Premises by Tenant  (“Completion
Estimate”).  If the
Completion Estimate indicates that the Premises or any Common Areas necessary
to provide access to the Premises cannot be made tenantable within 270 days
from the date the repair is started, then either party shall have the right to
terminate this Lease upon written notice to the other within 10 days after
receipt of the Completion Estimate.  Tenant,
however, shall not have the right to terminate this Lease if the Casualty was
caused by the negligence or intentional misconduct of Tenant or any Tenant
Related Parties. In addition, Landlord, by notice to Tenant within 90 days
after the date of the Casualty, shall have the right to terminate this Lease
if:  (1) the Premises have been
materially damaged and there is less than 2 years of the Term remaining on the
date of the Casualty; (2) any Mortgagee requires that the insurance proceeds be
applied to the payment of the mortgage debt; or (3) a material uninsured loss
to the Building occurs.


 


8

















 


16.02  If this Lease is not terminated, Landlord
shall promptly and diligently, subject to reasonable delays for insurance
adjustment or other matters beyond Landlord’s reasonable control, restore the
Premises and Common Areas. Such restoration shall be to substantially the same
condition that existed prior to the Casualty except for modifications required
by Law, and except for any other modifications to the Common Areas deemed
desirable by Landlord that do not materially reduce Tenant’s rights and
benefits under this Lease. Upon notice from Landlord, Tenant shall assign to
Landlord (or to any party designated by Landlord) all property insurance
proceeds payable to Tenant under Tenant’s Insurance with respect to any
Leasehold Improvements performed by or for the benefit of Tenant; provided if
the estimated cost to repair such Leasehold Improvements exceeds the amount of
insurance proceeds received by Landlord from Tenant’s insurance carrier, the
excess cost of such repairs shall be paid by Tenant to Landlord prior to
Landlord’s commencement of repairs. 
Within 15 days of demand, Tenant shall also pay Landlord for any additional
excess costs that are determined during the performance of the repairs.
Landlord shall not be liable for any inconvenience to Tenant, or injury to
Tenant’s business resulting in any way from the Casualty or the repair thereof.  Provided that Tenant is not in Default,
during any period of time that all or a material portion of the Premises is
rendered untenantable as a result of a Casualty, the Rent shall abate for the
portion of the Premises that is untenantable and not used by Tenant.


 


16.03  The provisions of this Lease, including this
Section 16, 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 similar or successor 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.


 


17.          Condemnation.


 


Either
party may terminate this Lease if any material part of the Premises is 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 or
Property which would have a material adverse effect on Landlord’s ability to
profitably operate the remainder of the Building.  The terminating party shall provide written notice of termination
to the other party within 45 days after it first receives notice of the
Taking.  The termination shall be
effective on the date the physical taking occurs.  If this Lease is not terminated, Base Rent and Tenant’s Pro Rata
Share shall be appropriately adjusted to account for any reduction in the
square footage of the Building or Premises. All compensation awarded for a
Taking shall be the property of Landlord. 
The right to receive compensation or proceeds are expressly waived by
Tenant, however, Tenant may file a separate claim for Tenant’s Property and
Tenant’s reasonable relocation expenses, provided the filing of the claim does
not diminish the amount of Landlord’s award. 
If only a part of the Premises is subject to a Taking and this Lease is
not terminated, Landlord, with reasonable diligence, will restore the remaining
portion of the Premises as nearly as practicable to the condition immediately
prior to the Taking.  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.


 


18.          Events of Default.


 


Each
of the following occurrences shall be a “Default”:
(a) Tenant’s failure to pay any portion of Rent when due, 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, condition
or covenant of this Lease, if the failure is not cured within 10 days after
written notice to Tenant provided, however, if Tenant’s failure to comply
cannot reasonably be cured within 10 days, Tenant shall be allowed additional
time (not to exceed 60 days) as is reasonably necessary to cure the failure so
long as Tenant begins the cure within 10 days and diligently pursues the cure
to completion; (c) Tenant or any Guarantor becomes insolvent, makes a transfer
in fraud of creditors, makes an assignment for the benefit of creditors, admits
in writing its inability to pay its debts when due or forfeits or loses its
right to conduct business; (d) the leasehold estate is taken by process or
operation of Law; or (e) Tenant is in default beyond any notice and cure period
under any other lease or agreement with Landlord at the Building or Property.
If Landlord provides Tenant with notice of Tenant’s failure to comply with any
specific provision of this Lease on 3 separate occasions during any 12 month
period, Tenant’s subsequent violation of such provision shall, at Landlord’s
option, be an incurable Default by Tenant. All notices sent under this Section
shall be in satisfaction of, and not in addition to, notice required by Law.


 


19.          Remedies.


 


19.01  Upon the occurrence of any Default under
this Lease, whether enumerated in Section 18 or not, Landlord shall have the
option to pursue any one or more of the following remedies without any notice


 


9

















 


(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, except for those notices specifically required pursuant to the
terms of Section 18 or this Section 19, and waives any and all other notices or
demand requirements imposed by applicable law):


 


(a)           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:


 


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


 


(ii)           The
Worth at the Time of Award of the amount by which the unpaid Rent which would
have been earned after termination until the time of award exceeds the amount
of such Rent loss that Tenant affirmatively proves could have been reasonably
avoided;


 


(iii)          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;


 


(iv)          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


 


(v)           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 (i) and (ii) above, shall be computed by
allowing interest at the lesser of a per annum rate equal to: (A) the greatest
per annum rate of interest permitted from time to time under applicable law, or
(B) the Prime Rate plus 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 (iii), 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 1%;


 


(b)           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


 


(c)           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 19.01(a).


 


19.02  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.


 


19.03  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 LITIGATION ARISING
OUT OF OR RELATING TO THIS LEASE.


 


19.04  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


 


10

















 


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.


 


19.05  If Tenant is in Default of any of its
non-monetary obligations under the Lease, Landlord shall have the right to
perform such obligations.  Tenant shall
reimburse Landlord for the cost of such performance upon demand together with
an administrative charge equal to 10% of the cost of the work performed by
Landlord.


 


19.06  This Section 19 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.


 


20.          Limitation of Liability.


 


NOTWITHSTANDING
ANYTHING TO THE CONTRARY CONTAINED IN THIS LEASE, THE LIABILITY OF LANDLORD
(AND OF ANY SUCCESSOR LANDLORD) SHALL BE LIMITED TO THE LESSER OF (A) THE
INTEREST OF LANDLORD IN THE PROPERTY, OR (B) THE EQUITY INTEREST LANDLORD WOULD
HAVE IN THE PROPERTY IF THE PROPERTY WERE ENCUMBERED BY THIRD PARTY DEBT IN AN
AMOUNT EQUAL TO 70% OF THE VALUE OF THE PROPERTY.  TENANT SHALL LOOK SOLELY TO LANDLORD’S INTEREST IN THE PROPERTY
FOR THE RECOVERY OF ANY JUDGMENT OR AWARD AGAINST LANDLORD OR ANY LANDLORD
RELATED PARTY. NEITHER LANDLORD NOR ANY LANDLORD RELATED PARTY SHALL BE
PERSONALLY LIABLE FOR ANY JUDGMENT OR DEFICIENCY, AND IN NO EVENT SHALL
LANDLORD OR ANY LANDLORD RELATED PARTY BE LIABLE TO TENANT FOR ANY LOST PROFIT,
DAMAGE TO OR LOSS OF BUSINESS OR ANY FORM OF SPECIAL, INDIRECT OR CONSEQUENTIAL
DAMAGE.  BEFORE FILING SUIT FOR AN
ALLEGED DEFAULT BY LANDLORD, TENANT SHALL GIVE LANDLORD AND THE MORTGAGEE(S)
WHOM TENANT HAS BEEN NOTIFIED HOLD MORTGAGES (DEFINED IN SECTION 23 BELOW),
NOTICE AND REASONABLE TIME TO CURE THE ALLEGED DEFAULT.


 


21.          [Intentionally Omitted.]


 


22.          Holding Over.


 


If
Tenant fails to surrender all or any part of the Premises at the termination of
this Lease, occupancy of the Premises after termination shall be that of a
tenancy at sufferance.  Tenant’s
occupancy 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 150% of the sum of the Base Rent and
Additional Rent due for the period immediately preceding the holdover.  No holdover by Tenant or payment by Tenant
after the 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. 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 notice from Landlord, Tenant shall be liable for all damages that
Landlord suffers from the holdover.


 


23.          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 or the Property, 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. As an alternative, a Mortgagee shall have the right at any time to
subordinate its Mortgage to this Lease. 
Upon request, Tenant, without charge, shall attorn to any successor to
Landlord’s interest in this Lease. 
Notwithstanding the foregoing, upon written request by Tenant, Landlord
will use reasonable efforts to obtain a non-disturbance, subordination and
attornment agreement from Landlord’s then current Mortgagee on such Mortgagee’s
then current standard form of agreement. 
“Reasonable efforts” of Landlord shall not require Landlord to incur any
cost, expense or liability to obtain such agreement, it being agreed that
Tenant shall be responsible for any fee or review costs charged by the
Mortgagee.  Upon request of Landlord,
Tenant will execute the Mortgagee’s form of non-disturbance, subordination and
attornment agreement and return the same to Landlord for execution by the
Mortgagee.  Landlord’s failure to obtain
a non-disturbance, subordination and attornment agreement for Tenant shall have
no effect on the rights, obligations and liabilities of Landlord and Tenant or
be considered to be a default by Landlord hereunder.  Landlord and Tenant shall each, within 10 days after receipt of a
written request from the other, execute and deliver a commercially reasonable
estoppel certificate to those parties as are reasonably requested by the other
(including a Mortgagee or prospective purchaser). Without limitation,


 


11

















 


such estoppel certificate may include a certification
as to the status of this Lease, the existence of any defaults and the amount of
Rent that is due and payable.


 


24.          Notice.


 


All
demands, approvals, consents or notices (collectively referred to as a “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 Section 1. 
Each notice shall be deemed to have been received on the earlier to
occur of actual delivery or the date on which delivery is refused, or, if
Tenant has vacated the Premises or any 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 (other than to a post office box address) by giving the other
party written notice of the new address.


 


25.          Surrender of Premises.


 


At
the termination of this Lease or Tenant’s right of possession, Tenant shall
remove Tenant’s Property from the Premises, and quit and surrender the Premises
to Landlord, broom clean, and in good order, condition and repair, ordinary
wear and tear and damage which Landlord is obligated to repair hereunder
excepted. If Tenant fails to remove any of Tenant’s Property within 2 days
after termination of this Lease or 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. If Tenant fails to
remove Tenant’s Property from the Premises or storage, within 30 days after
notice, Landlord may deem all or any part of Tenant’s Property to be abandoned
and title to Tenant’s Property shall vest in Landlord.


 


26.          Miscellaneous.


 


26.01  This Lease shall be interpreted 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
or commonwealth.  If any term or
provision of this Lease shall to any extent be void or unenforceable, the
remainder of this Lease shall not be affected. 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, and requests or demands from any one person or entity comprising
Tenant shall be deemed to have been made by all such persons or entities.  Notices to any one person or entity shall be
deemed to have been given to all persons and entities. Tenant represents and
warrants to Landlord that each individual executing this Lease on behalf of
Tenant is authorized to do so on behalf of Tenant and that Tenant is not, and
the entities or individuals constituting Tenant or which may own or control
Tenant or which may be owned or controlled by Tenant are not, among the
individuals or entities identified on any list compiled pursuant to Executive
Order 13224 for the purpose of identifying suspected terrorists.


 


26.02  If either party institutes a suit against
the other for violation of or to enforce any covenant, term or condition of
this Lease, the prevailing party shall be entitled to all of its costs and
expenses, including, without limitation, reasonable attorneys’ fees.  Landlord and Tenant hereby waive any right
to trial by jury in any proceeding based upon a breach of this Lease.  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.


 


26.03  Whenever a period of time is prescribed for
the taking of an action by Landlord or Tenant (other than the payment of the
Security Deposit or Rent), 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,
terrorist acts, civil disturbances and other causes beyond the reasonable
control of the performing party (“Force
Majeure”).


 


26.04  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 Building and Property. 
Upon 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, 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 this Lease.


 


26.05  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. Tenant represents that it has dealt directly
with and only with the Broker as a broker in connection with this Lease.
Landlord agrees to pay a brokerage commission to Broker in accordance with the
terms of a separate written commission


 


12

















 


agreement to be entered into between Landlord
and Broker. Tenant shall indemnify and hold Landlord and the Landlord Related
Parties harmless from all claims of any other brokers claiming to have
represented Tenant in connection with this Lease. Landlord shall 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.  Equity Office Properties Management
Corp. (“EOPMC”) is an affiliate of
Landlord and represents only the Landlord in this transaction.  Any assistance rendered by any agent or
employee of EOPMC in connection with this Lease or any subsequent amendment or
modification hereto has been or will be made as an accommodation to Tenant
solely in furtherance of consummating the transaction on behalf of Landlord,
and not as agent for Tenant.


 


26.06
Time is of the essence with respect to Tenant’s exercise of any expansion,
renewal or extension rights granted to Tenant. The expiration of the Term,
whether by lapse of time, termination or otherwise, shall not relieve either
party of any obligations which accrued prior to or which may continue to accrue
after the expiration or termination of this Lease.


 


26.07  Tenant 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 shall be binding upon Landlord
and its successors only during its or their respective periods of ownership of
the Building.


 


26.08  This Lease does not grant any rights to
light or air over or about the Building. 
Landlord excepts and reserves exclusively to itself any and all rights
not specifically granted to Tenant under this Lease. This Lease constitutes the
entire agreement between the parties and supersedes all prior agreements and
understandings related to the Premises, including all lease proposals, letters
of intent and other documents.  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 an authorized representative of
Landlord and Tenant.


 


 


[SIGNATURES ARE ON FOLLOWING PAGE]


 


13

















 


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


 


 


	
   

  	
  LANDLORD:

  
	
   

  	
   

  
	
   

  	
  EOP-PENINSULA
  OFFICE 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 general

  partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TENANT:

  
	
   

  	
   

  
	
   

  	
  LIBERATE
  TECHNOLOGIES, a Delaware corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Tenant’s
  Tax ID Number (SSN or FEIN)

  
								



 


14

















 


EXHIBIT A


 


OUTLINE AND LOCATION OF PREMISES


 


1

















 


EXHIBIT B


 


EXPENSES AND TAXES


 


This
Exhibit is attached to and made a part of the Lease by and between EOP-PENINSULA OFFICE PARK, L.L.C., a Delaware limited
liability company (“Landlord”)
and LIBERATE TECHNOLOGIES, a Delaware
corporation (“Tenant”)
for space in the Building located at 2655 Campus Drive, San Mateo, California.


 


1.             Payments.


 


1.01  Tenant shall pay Tenant’s Pro Rata Share of
the amount, if any, by which Expenses (defined below) for each calendar year
during the Term exceed Expenses for the Base Year (the “Expense Excess”) and also the amount, if
any, by which Taxes (defined below) for each calendar year during the Term
exceed Taxes for the Base Year (the “Tax
Excess”).  If Expenses or
Taxes in any calendar year decrease below the amount of Expenses or Taxes for
the Base Year, Tenant’s Pro Rata Share of Expenses or Taxes, as the case may
be, for that calendar year shall be $0. 
Landlord shall provide Tenant with a good faith estimate of the Expense
Excess and of the Tax Excess 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 both the Expense Excess and
Tax Excess. 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 Expense
Excess or the Tax Excess by January 1 of a calendar year, Tenant shall continue
to pay monthly installments based on the previous year’s estimate(s) until
Landlord provides Tenant with the new estimate.


 


1.02  As soon as is practical following the end of
each calendar year, Landlord shall furnish Tenant with a statement of the
actual Expenses and Expense Excess and the actual Taxes and Tax Excess for the
prior calendar year.  If the estimated
Expense Excess or estimated Tax Excess for the prior calendar year is more than
the actual Expense Excess or actual Tax Excess, as the case may be, for the
prior calendar year, Landlord shall either provide Tenant with a refund or
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
Expense Excess or estimated Tax Excess for the prior calendar year is less than
the actual Expense Excess or actual Tax Excess, as the case may be, for such
prior year, Tenant shall pay Landlord, within 30 days after its receipt of the
statement of Expenses or Taxes, any underpayment for the prior calendar year.


 


2.             Expenses.


 


2.01  “Expenses”
means all costs and expenses incurred in each calendar year in connection with
operating, maintaining, repairing, and managing the Building and the
Property.  Landlord agrees to act in a
commercially reasonable manner in incurring Expenses, taking into consideration
the class and the quality of the Building.  Expenses include, without
limitation: (a) all labor and labor related costs, including wages, salaries,
bonuses, taxes, insurance, uniforms, training, retirement plans, pension plans
and other employee benefits; (b) management fees; (c) the cost of equipping,
staffing and operating an on-site and/or off-site management office for the
Building, provided if the management office services one or more other
buildings or properties, the shared costs and expenses of equipping, staffing
and operating such management office(s) shall be equitably prorated and
apportioned between the Building and the other buildings or properties; (d)
accounting costs; (e) the cost of services; (f) rental and purchase cost of
parts, supplies, tools and equipment; (g) insurance premiums and deductibles;
(h) electricity, gas and other utility costs; and (i) the amortized cost of
capital improvements (as distinguished from replacement parts or components
installed in the ordinary course of business) made subsequent to the Base Year
which are:  (1) performed primarily to
reduce current or future operating expense costs, upgrade Building security or
otherwise improve the operating efficiency of the Property; or (2) required to
comply with any Laws that are enacted, or first interpreted to apply to the
Property, 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 the useful life of the capital
improvement as reasonably determined by Landlord. 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. Landlord, by itself or through an affiliate, shall have
the right to directly perform, provide and be compensated for any services
under this Lease. If Landlord incurs Expenses for the Building or Property
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 Building
and Property and the other buildings or properties.


 


1

















 


2.02  Expenses shall not include: the cost of
capital improvements (except as set forth above); depreciation; principal
payments of mortgage 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,
including brokerage commissions; lease concessions, rental abatements and
construction allowances granted to specific tenants; costs incurred in
connection with the sale, financing or refinancing of the Building; fines,
interest and penalties incurred due to the late payment of Taxes or Expenses;
organizational expenses associated with the creation and operation of the
entity which constitutes Landlord; or any penalties or damages that Landlord
pays to Tenant under this Lease or to other tenants in the Building under their
respective leases.


 


2.03
If at any time during a calendar year the Building is not at least 95% occupied
or Landlord is not supplying services to at least 95% of the total Rentable
Square Footage of the Building, variable Expenses (i.e. those that vary with
occupancy) shall, at Landlord’s option, be determined as if the Building had
been 95% occupied and Landlord had been supplying services to 95% of the
Rentable Square Footage of the Building. 
If Expenses for a calendar year are determined as provided in the prior
sentence, Expenses for the Base Year shall also be determined in such manner.
Notwithstanding the foregoing, Landlord may calculate the extrapolation of
Expenses under this Section based on 100% occupancy and service so long as such
percentage is used consistently for each year of the Term. The extrapolation of
Expenses under this Section shall be performed in accordance with the
methodology specified by the Building Owners and Managers Association.


 


3.  “Taxes”
shall mean:  (a) all real property taxes
and other assessments on the Building and/or Property, including, but not
limited to, gross receipts taxes, assessments for special improvement districts
and building improvement districts, governmental charges, fees and assessments
for police, fire, traffic mitigation or other governmental service of purported
benefit to the Property, taxes and assessments levied in substitution or
supplementation in whole or in part of any such taxes and assessments 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; (b) 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 (c) all costs and fees incurred in connection with seeking
reductions in any tax liabilities described in (a) and (b), including, without
limitation, any costs incurred by Landlord for compliance, review and appeal of
tax liabilities for tax years that occur in whole or in part during the
Term.  Without limitation, Taxes shall
not include any income, capital levy, transfer, capital stock, gift, estate or
inheritance tax. If a change in Taxes is obtained for any year of the Term
during which Tenant paid Tenant’s Pro Rata Share of any Tax Excess, then Taxes
for that year will be retroactively adjusted and Landlord shall provide Tenant
with a credit, if any, based on the adjustment.  Likewise, if a change is obtained for Taxes for the Base Year,
Taxes for the Base Year shall be restated and the Tax Excess for all subsequent
years shall be recomputed.  Tenant shall
pay Landlord the amount of Tenant’s Pro Rata Share of any such increase in the
Tax Excess within 30 days after Tenant’s receipt of a statement from Landlord.


 


4.  Audit
Rights.  Tenant, within 365
days after receiving Landlord’s statement of Expenses, may give Landlord
written notice (“Review Notice”)
that Tenant intends to review Landlord’s records of the Expenses for the
calendar year to which the statement applies. 
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 management
office for the Building, 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 CPA firm licensed to do
business in the state or commonwealth where the Property is located.  Notwithstanding the foregoing, Landlord
agrees that Tenant may retain a third party agent to review Landlord’s books
and records which is not a CPA firm, so long as the third party agent retained
by Tenant shall have expertise in and familiarity with general industry
practice with respect to the operation of and accounting for a first class
office building and whose compensation shall in no way be contingent upon or correspond
to the financial impact on Tenant resulting from the review.  Tenant
shall be solely responsible for all costs, expenses and fees incurred for the
audit.  Within 90 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
90 day period or fails to provide Landlord with a Review Notice within the 365
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.  The records
obtained by Tenant shall be treated as confidential.  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 as provided in the Lease.


 


2

















 


EXHIBIT C


 


WORK LETTER


 


This
Exhibit is attached to and made a part of the Lease by and between EOP-PENINSULA OFFICE PARK, L.L.C., a Delaware limited
liability company (“Landlord”)
and LIBERATE TECHNOLOGIES, a Delaware
corporation (“Tenant”)
for space in the Building located at 2655 Campus Drive, San Mateo, California.


 


As
used in this Work Letter, the “Premises” shall be deemed to mean the Premises,
as initially defined in the attached Lease.


 


1.             Landlord shall perform improvements to the Premises
substantially in accordance with the plans prepared by Brereton Architects,
dated November 21, 2003 (the “Plans”).  The improvements to be performed by Landlord
in accordance with the Plans are hereinafter referred to as the “Landlord  Work.”  It is agreed that construction of the
Landlord Work will be completed at Landlord’s sole cost and expense (subject to
the Maximum Amount and further subject to the terms of Paragraph 4 below) using
Building Standard methods, materials and finishes.  Landlord and Tenant agree that Landlord’s obligation to pay for
the cost of Landlord Work (inclusive of the cost of preparing Plans, obtaining
permits, and other related costs) shall be limited to $337,747.50 (the “Maximum Amount”) and that Tenant shall be
responsible for the cost of Landlord Work, plus any applicable state sales or
use tax, if any, to the extent that it exceeds the Maximum Amount.  Landlord shall enter into a direct contract
with Venture Builders as the general contractor for the Landlord Work. In addition,
Landlord shall have the right to select and/or approve of any subcontractors
used in connection with the Landlord Work; provided that the mechanical
subcontractor shall be with either Cal Air or Critchfield Mechanical, based on
the lower comparable bid of the two, the electrical subcontract shall be with
either Redwood City Electric or Ellco Electric, based on the lower comparable
bid of the two, and all other subcontracts shall be awarded on a competitive
bid basis with bids from at least two (2) subcontractors.  Landlord’s supervision or performance of any
work for or on behalf of Tenant shall not be deemed a representation by
Landlord that such Plans or the revisions thereto comply with applicable
insurance requirements, building codes, ordinances, laws or regulations (except
to the extent specifically set forth in Section 5 of the Lease), or that the
improvements constructed in accordance with the Plans and any revisions thereto
will be adequate for Tenant’s use, it being agreed that Tenant shall be
responsible for all elements of the design of Tenant’s plans (including,
without limitation, functionality of design, the structural integrity of the
design, the configuration of the premises and the placement of Tenant’s
furniture, appliances and equipment).


 


2.             If Landlord’s estimate and/or the actual cost
of the Landlord Work shall exceed the Maximum Amount, Landlord, prior to
commencing any construction of Landlord Work, shall submit to Tenant a written
estimate setting forth the anticipated cost of the Landlord Work, including but
not limited to labor and materials, contractor’s fees and permit fees.  Within 3 Business Days thereafter, Tenant
shall either notify Landlord in writing of its approval of the cost estimate,
or specify its objections thereto and any desired changes to the proposed
Landlord Work.  If Tenant notifies
Landlord of such objections and desired changes, Tenant shall work with
Landlord to reach a mutually acceptable alternative cost estimate.


 


3.             If after the course of the procedure set
forth in Section 2 above, Landlord’s estimate and/or the actual cost of
construction shall exceed the Maximum Amount (such amounts exceeding the
Maximum Amount being herein referred to as the “Excess  Costs”),
Tenant shall pay to Landlord fifty percent (50%) of such Excess Costs, plus any
applicable state sales or use tax thereon, within 1 Business Day of demand (and
Tenant shall be charged with one day of Tenant Delay for each day thereafter
that Tenant fails to pay such amount to Landlord), and shall pay the remaining
fifty percent (50%) of Excess Costs within 15 days following the Commencement
Date. The statements of costs submitted to Landlord by Venture Builders shall
be conclusive for purposes of determining the actual cost of the items
described therein.  The amounts payable
by Tenant hereunder constitute Rent payable pursuant to the Lease, and the
failure to timely pay same constitutes an event of default under the Lease.


 


4.             If Tenant shall request any revisions to the
Plans, Landlord shall have such revisions prepared at Tenant’s sole cost and
expense and Tenant shall reimburse Landlord for the cost of preparing any such
revisions to the Plans, plus any applicable state sales or use tax thereon,
upon demand, unless the cost of such revisions, when added to the cost of the
Landlord Work, does not exceed the Maximum Amount.  Promptly upon completion of the revisions, Landlord shall notify
Tenant in writing of the increased cost in the Landlord Work, if any, resulting
from such revisions to the Plans. 
Tenant, within three (3) Business Days, shall notify Landlord in writing
whether it desires to proceed with such revisions.  In the absence of such written authorization, Landlord shall have
the option to continue work on the Premises disregarding the requested
revision.  Tenant shall be responsible
for


 


1

















 


any
Tenant Delay in completion of the Premises resulting from any revision to the
Plans.  If such revisions result in an
increase in the cost of Landlord Work above the Maximum Amount, such cost in
excess of the Maximum Amount, plus any applicable state sales or use tax
thereon, shall be payable by Tenant within one (1) Business Day of demand (and
Tenant shall be charged with one day of Tenant Delay for each day thereafter
that Tenant fails to pay such amount to Landlord), or, at Landlord’s option, in
the absence of such timely payment, Landlord may continue work on the Premises
disregarding the requested revision. Notwithstanding anything herein to the
contrary, all revisions to the Plans shall be subject to the approval of
Landlord, which shall not be unreasonably withheld, conditioned or delayed.


 


5.             Any portion of the Maximum Amount which
exceeds the cost of the Landlord Work or is otherwise remaining after June 1,
2004, shall accrue to the sole benefit of Landlord, it being agreed that Tenant
shall not be entitled to any credit, offset, abatement or payment with respect
thereto.


 


6.             This Work Letter shall not be deemed
applicable to any additional space added to the Premises at any time or from
time to time, whether by any options under the Lease or otherwise, or to any
portion of the original Premises or any additions to the Premises in the event
of a renewal or extension of the original Term of the Lease, whether by any
options under the Lease or otherwise, unless expressly so provided in the Lease
or any amendment or supplement to the Lease.


 


2



















EXHIBIT D


 


COMMENCEMENT LETTER


(EXAMPLE)


 


 


	
  Date

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Tenant

  	
  Liberate Technologies

  	
   

  
	
  Address

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  



 


Re:          Commencement Letter with respect to that certain Lease dated as of
the               day
of
                ,           ,
by and between EOP-PENINSULA
OFFICE PARK, L.L.C., a Delaware limited liability company, as
Landlord, and LIBERATE TECHNOLOGIES, a
Delaware corporation, as Tenant, for 15,011 rentable square feet on the 2nd floor of the
Building located at 2655 Campus Drive, San
Mateo, 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 of the Lease
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,


 


 


Authorized Signatory


 


Agreed and Accepted:


 


 


	
  Tenant:

  	
  Liberate Technologies,

  
	
   

  	
  a Delaware corporation

  
	
   

  	
   

  
	
  By:

  	
   

  
	
  Name:

  	
   

  
	
  Title:

  	
   

  
	
  Date:

  	
   

  



 


1

















 


EXHIBIT E


 


BUILDING RULES AND REGULATIONS


 


The following rules and
regulations shall apply, where applicable, to the Premises, the Building, the
parking facilities (if any), the Property and the appurtenances.  In the event of a conflict between the
following rules and regulations and the remainder of the terms of the Lease,
the remainder of the terms of the Lease shall control.  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 or
Property.


 


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, 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. Except in connection with the hanging of lightweight
pictures and wall decorations, no nails, hooks or screws shall be inserted into
any part of the Premises or Building except by the Building maintenance
personnel without Landlord’s prior approval, which approval shall not be
unreasonably withheld.


 


4.             Landlord may provide and maintain in the
first floor (main lobby) of the Building an alphabetical directory board or
other directory device listing tenants and no other directory shall be
permitted unless previously consented to by Landlord in writing.


 


5.             Tenant shall not place any lock(s) on any
door in the Premises or Building without Landlord’s prior written consent,
which consent shall not be unreasonably withheld, and Landlord shall have the
right at all times to retain and use keys or other access codes or devices to
all locks within and into the Premises. 
A reasonable number of keys to the locks on the entry doors in the
Premises shall be furnished by Landlord to Tenant at Tenant’s cost and Tenant
shall not make any duplicate keys.  All
keys shall be returned to Landlord at the expiration or early termination of
the Lease.


 


6.             All contractors, contractor’s representatives
and installation technicians performing work in the Building shall be subject
to Landlord’s prior approval, which approval shall not be unreasonably
withheld, and shall be required to comply with Landlord’s standard rules,
regulations, policies and procedures, which may be revised from time to time.


 


7.             Movement in or out of the Building of
furniture or office equipment, or 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 reasonably designated by
Landlord.  Tenant shall obtain
Landlord’s prior approval by providing a detailed listing of the activity,
which approval shall not be unreasonably withheld.  If approved by Landlord, the activity shall be under the
supervision of Landlord and performed in the manner 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, loss or injury.


 


8.             Landlord shall have the right to approve the
weight, size, or location of heavy equipment or articles in and about the
Premises, which approval shall not be unreasonably withheld.  Damage to the Building by the installation,
maintenance, operation, existence or removal of Tenant’s Property shall be
repaired at Tenant’s sole expense.


 


9.             Corridor doors, when not in use, shall be
kept closed.


 


10.           Tenant shall not:  (1) make or
permit any improper, objectionable or unpleasant noises or odors in the
Building, or otherwise interfere in any way with other tenants or persons
having business with them; (2) solicit business or distribute or cause to be
distributed, in any portion of the


 


1

















 


Building, handbills,
promotional materials or other advertising; or (3) conduct or permit other
activities in the Building that might, in Landlord’s sole opinion, constitute a
nuisance.


 


11.           No animals, except those assisting handicapped persons, shall be
brought into the Building or kept in or about the Premises.


 


12.           No inflammable, explosive or dangerous fluids or substances shall be
used or kept by Tenant in the Premises, Building or about the Property, except for those substances as are typically
found in similar premises used for general office purposes and are being used
by Tenant in a safe manner and in accordance with all applicable Laws.  Tenant shall not, without Landlord’s prior
written consent, use, store, install, spill, remove, release or dispose of,
within or about the Premises or any other portion of the Property, 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 these materials by Tenant
and shall remain solely liable for the costs of abatement and removal.


 


13.           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 or the Building. Tenant shall not use, or permit any part of
the Premises to be used for lodging, sleeping or for any illegal purpose.


 


14.           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 (“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.


 


15.           Tenant shall not install, operate or maintain in the Premises or in any
other area of the Building, electrical equipment that would overload the
electrical system beyond its capacity for proper, efficient and safe operation
as determined solely by Landlord. 
Tenant shall not furnish cooling or heating to the Premises, including,
without limitation, the use of electric 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.


 


16.           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.


 


17.           Bicycles and other vehicles are not permitted inside the Building or on
the walkways outside the Building, except in areas designated by Landlord.


 


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


 


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


 


20.           Neither Tenant nor its agents, employees, contractors, guests or
invitees shall smoke or permit smoking in the Common Areas, unless a portion of
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.  Landlord shall have the right to designate the Building
(including the Premises) as a non-smoking building.


 


21.           Landlord shall have the right to designate and approve standard window
coverings for the Premises and to establish rules to assure that the Building
presents 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.


 


2

















 


22.           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.


 


23.           The work of cleaning personnel shall not be hindered by Tenant after
5:30 p.m., and cleaning work may
be done at any time when the offices are vacant. Windows, doors and fixtures
may be cleaned at any time.  Tenant
shall provide adequate waste and rubbish receptacles to prevent unreasonable hardship
to the cleaning service.


 


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EXHIBIT F


 


ADDITIONAL PROVISIONS


 


This
Exhibit is attached to and made a part of the Lease by and between EOP-PENINSULA OFFICE PARK, L.L.C., a Delaware limited
liability company  (“Landlord”)
and LIBERATE
TECHNOLOGIES, a Delaware corporation (“Tenant”)
for space in the Building located at 2655 Campus Drive, San Mateo, California.


 


1.             Asbestos
Notification.  Tenant acknowledges that
Tenant has received the asbestos notification letter attached to this Lease as Exhibit H hereto, disclosing the existence
of asbestos in the Building.  As part of
Tenant’s obligations under this Lease, Tenant agrees to comply with the
California “Connelly Act” and other applicable Laws, including providing copies
of Landlord’s asbestos notification letter to all of Tenant’s “employees” and
“owners”, as those terms are defined in the Connelly Act and other applicable
Laws.


 


2.             Letter Of Credit.


 


2.01         General
Provisions.  Concurrently with Tenant’s
execution of this Lease, Tenant shall deliver to Landlord, 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, a
standby, unconditional, irrevocable, transferable letter of credit (the “Letter of Credit”) in the form of Exhibit I hereto and containing the terms
required herein, in the face amount of $972,712.80
(the “Letter of Credit Amount”),
naming Landlord as beneficiary, issued (or confirmed) by a financial
institution acceptable to Landlord in Landlord’s sole discretion, permitting
multiple and partial draws thereon, and otherwise in form acceptable to
Landlord in its sole discretion.  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 120 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 2, 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.


 


2.02         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; 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 2.  No
condition or 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 or upon the occurrence of any of the other events
described above in this Section 2.02.


 


2.03         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 (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); and (iv) against any other amount that Landlord may spend or
become obligated to spend by reason of Tenant’s Default.  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


 


1

















 


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.


 


2.04         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 2, 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.


 


2.05         Reduction
of Letter of Credit.  Subject to the
remaining terms of this Section 2, and provided Tenant has timely paid all Rent
due under the Lease during the 12 month period immediately preceding the
effective date of any reduction of the Letter of Credit, Tenant shall have the
right to reduce the amount of the Letter of Credit so that the reduced Letter
of Credit amounts will be as follows: (i) $639,468.00 effective as of the 13th
month of the Term; and (ii) $315,231.00 effective as of 25th month
of the Term.  If Tenant is not entitled
to reduce the Letter of Credit as of a particular reduction effective date due
to Tenant’s failure to timely pay all Rent during the 12 months prior to that
particular reduction effective date, then any subsequent reduction(s) Tenant is
entitled to hereunder shall be reduced by the amount of the reduction Tenant
would have been entitled to had Tenant timely paid all Rent during the 12
months prior to that particular earlier reduction effective date.  Notwithstanding anything to the contrary
contained herein, if Tenant has been in default under the Lease at any time
prior to the effective date of any reduction of the Letter of Credit and Tenant
has failed to cure such default within any applicable cure period, then Tenant
shall have no further right to reduce the amount of the Letter of Credit as
described herein.  Any reduction in the
Letter of Credit shall be accomplished by Tenant providing Landlord with a
substitute letter of credit in the reduced amount.


 


3.             Renewal Option.


 


3.01         Grant of Option; Conditions. 
Tenant shall have the right to extend the Term (the “Renewal Option”) for one additional period
of 3 years commencing on the day following the Termination Date of the initial
Term and ending on the 3rd anniversary of the Termination Date (the
“Renewal Term”), if:


 


(a)           Landlord receives notice of exercise (“Initial Renewal Notice”) not less than 9 full calendar months
prior to the expiration of the initial Term and not more than 12 full calendar
months prior to the expiration of the initial Term; and


 


(b)           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 defined below); and


 


(c)           No more than 20% of the Premises is sublet (other than pursuant to a
Permitted Transfer, as defined in Section 11 of the Lease) at the time that
Tenant delivers its Initial Renewal Notice or at the time Tenant delivers its
Binding Notice; and


 


(d)           The Lease has not been assigned (other than pursuant to a Permitted
Transfer, as defined in Section 11 of the Lease) prior to the date that Tenant
delivers its Initial Renewal Notice or prior to the date Tenant delivers its
Binding Notice.


 


3.02         Terms Applicable to Premises
During Renewal Term.


 


(a)           The initial Base Rent rate per rentable square foot for the Premises
during the Renewal Term shall equal 95% of the Prevailing Market (hereinafter
defined) rate per rentable square foot for the Premises.  Base Rent during the Renewal Term shall
increase, if at all, in accordance with the increases assumed in the


 


2

















 


determination of Prevailing Market rate.  Base Rent attributable to the Premises shall
be payable in monthly installments in accordance with the terms and conditions
of Section 4 of the Lease.


 


(b)           Tenant shall pay Additional Rent (i.e. Taxes and Expenses) for the
Premises during the Renewal Term in accordance with Article 4 of the Lease, and
the manner and method in which Tenant reimburses Landlord for Tenant’s share of
Taxes and Expenses and the Base Year, if any, applicable to such matter, shall
be some of the factors considered in determining the Prevailing Market rate for
the Renewal Term.


 


3.03         Procedure for Determining
Prevailing Market.  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 Renewal 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 (as defined
below) 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 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 rate for the Premises
within 30 days after the date on which Tenant provides Landlord with a
Rejection Notice, Tenant’s Renewal Option shall be null and void and of no
force and effect.


 


3.04         Renewal Amendment.  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 sent to Tenant within a reasonable time after receipt of the
Binding Notice and Tenant shall execute and return the Renewal Amendment to
Landlord within 15 days after Tenant’s receipt of same, but, upon final
determination of the Prevailing Market rate applicable during the Renewal Term
as described herein, an otherwise valid exercise of the Renewal Option shall be
fully effective whether or not the Renewal Amendment is executed.


 


3.05         Definition of Prevailing
Market.  For purposes of this Renewal Option, “Prevailing Market” shall mean the arms length
fair market 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
Building and office buildings comparable to the Building in the San Mateo,
California area.  The determination of
Prevailing Market shall take into account any material economic differences
between the terms of this Lease and any comparison lease or amendment, 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.


 


3.06         Subordination. 
Notwithstanding anything herein to the contrary, Tenant’s Renewal Option
is subject and subordinate to the expansion rights (whether such rights are
designated as a right of first offer, right of first refusal, expansion option
or otherwise) of any tenant of the Building existing on the date hereof.


 


4.             Acceleration Option.


 


4.01         Tenant
shall have the right to accelerate the Termination Date (“Acceleration Option”) of the Lease, with
respect to the entire Premises only, from the last day of the Term to the date
which is the last day of the 36th month of the Term (the “Accelerated Termination Date”), if:


 


3

















 


(a)           Tenant is not in default under the Lease at the date Tenant provides
Landlord with an Acceleration Notice (hereinafter defined); and


 


(b)           no part of the Premises is sublet for a term extending past the
Accelerated Termination Date; and


 


(c)           the Lease has not been assigned; and


 


(d)           Landlord receives notice of acceleration (“Acceleration Notice”) not less than 6 full calendar months
prior to the Accelerated Termination Date.


 


4.02         If Tenant exercises its Acceleration Option, Tenant shall pay to
Landlord the sum of $326,939.40
(the “Acceleration Fee”), as a fee
in connection with the acceleration of the Termination Date and not as a
penalty. Tenant shall pay the Acceleration Fee to Landlord simultaneously with
Tenant’s delivery of the Acceleration Notice.


 


4.03         If Tenant, subsequent to providing Landlord with an Acceleration
Notice, defaults in any of the provisions of this Lease (including, without
limitation, a failure to pay any installment of the Acceleration Fee due
hereunder), Landlord, at its option, may (i) declare Tenant’s exercise of the
Acceleration Option to be null and void, and any Acceleration Fee paid to
Landlord shall be returned to Tenant, after first applying such Acceleration
Fee against any past due Rent under the Lease, or (ii) continue to honor
Tenant’s exercise of its Acceleration Option, in which case, Tenant shall
remain liable for the payment of the Acceleration Fee and for all Base Rent,
Additional Rent and other sums due under the Lease up to and including the
Accelerated Termination Date even though billings for such may occur subsequent
to the Accelerated Termination Date.


 


4.04         As of the date Tenant provides Landlord with an Acceleration Notice,
any unexercised rights or options of Tenant to renew the Term of the Lease or
to expand the Premises (whether expansion options, rights of first or second
refusal, rights of first or second offer, or other similar rights), and any
outstanding tenant improvement allowance not claimed and properly utilized by
Tenant in accordance with the Lease as of such date, shall immediately be
deemed terminated and no longer available or of any further force or effect.


 


5.             Roof Space for Dish/Antenna.



 


5.01         Subject
to all applicable Laws and to this Section 5 of Exhibit F, Tenant shall have the right, at no additional
charge, to lease space on the roof of the Building, or alternatively, at
Landlord’s option, on the existing pad located in the area shown on Schedule F-1 hereto (“Pad”), for the purpose of installing (in
accordance with Section 9.03 of the Lease), operating and maintaining two 3
meter parabolic dish/antennas or other communication device approved by the
Landlord (the “Dish/Antennas”).  If  the roof space is used, the exact location
of the space on the roof to be leased by Tenant shall be requested by Tenant
and shall subject to Landlord’s reasonable approval, and shall not
exceed               square
feet (the “Roof Space”).  Landlord reserves the right to relocate the
Roof Space or the Pad as reasonably necessary during the Term, provided that
Tenant’s rights hereunder are not materially affected. Tenant’s right to
install the Dish/Antennas shall be subject to the reasonable approval rights of
Landlord and Landlord’s architect and/or engineer with respect to the plans and
specifications of the Dish/Antennas, the manner in which each Dish/Antenna is
attached to the Building and the manner in which any cables are run to and from
each the Dish/Antenna.  The precise
specifications and a general description of the Dish/Antennas along with all
documents Landlord reasonably requires to review the installation of the
Dish/Antennas (the “Plans and Specifications”)
shall be submitted to Landlord for Landlord’s written approval no later than 20
days before Tenant commences to install the Dish/Antennas. Tenant shall be
solely responsible for obtaining all necessary governmental and regulatory
approvals and for the cost of installing, operating, maintaining and removing
the Dish/Antennas. Tenant shall notify Landlord upon completion of the
installation of the Dish/Antennas. If Landlord determines that the
Dish/Antennas equipment does not comply with the approved Plans and
Specifications, that the Building has been damaged during installation of the
Dish/Antennas or that the installation was defective, Landlord shall notify
Tenant of any noncompliance or detected problems and Tenant immediately shall
cure the defects. If the Tenant fails to immediately cure the defects, Tenant
shall pay to Landlord upon demand the cost, as reasonably determined by
Landlord, of correcting any defects and repairing any damage to the Building
caused by such installation.  If at any
time Landlord, in its sole discretion, deems it necessary, Tenant shall provide
and install, at Tenant’s sole cost and expense, appropriate aesthetic
screening, reasonably satisfactory to Landlord, for the Dish/Antennas (the “Aesthetic Screening”).


 


4

















 


5.02         Landlord
agrees that Tenant, upon reasonable prior written notice to Landlord, shall
have access to the roof of the Building and the Roof Space, or, if applicable,
to the Pad, for the purpose of installing, maintaining, repairing and removing
the Dish/Antennas, the appurtenances and the Aesthetic Screening, if any, all
of which shall be performed by Tenant or Tenant’s authorized representative or
contractors, which shall be approved by Landlord, at Tenant’s sole cost and
risk.  It is agreed, however, that only
authorized engineers, employees or properly authorized contractors of Tenant,
FCC (defined below) inspectors, or persons under their direct supervision will
be permitted to have access to the roof of the Building and the Roof Space or
to the Pad.  Tenant further agrees to
exercise firm control over the people requiring access to the roof of the
Building and the Roof Space or the Pad in order to keep to a minimum the number
of people having access to the roof of the Building and the Roof Space and the
frequency of their visits.


 


5.03         It is
further understood and agreed that the installation, maintenance, operation and
removal of the Dish/Antennas, the appurtenances and the Aesthetic Screening, if
any, is not permitted to damage the Building or the roof thereof, or interfere
with the use of the Building and, if applicable, the roof by Landlord.  Tenant agrees to be responsible for any
damage caused to the Pad or to the roof or any other part of the Building,
which may be caused by Tenant or any of its agents or representatives.


 


5.04         Tenant
agrees to install only equipment of types and frequencies which will not cause
unreasonable interference to Landlord or existing tenants of the Building.  In the event Tenant’s equipment causes such
interference, Tenant will change the frequency on which it transmits and/or
receives and take any other steps necessary to eliminate the interference.  If said interference cannot be eliminated
within a reasonable period of time, in the judgment of Landlord, then Tenant
agrees to remove the Dish/Antennas from the Roof Space or the Pad, as
applicable.


 


5.05         Tenant
shall, at its sole cost and expense, and at its sole risk, install, operate and
maintain the Dish/Antennas in a good and workmanlike manner, and in compliance
with all Building, electric, communication, and safety codes, ordinances,
standards, regulations and requirements, now in effect or hereafter
promulgated, of the Federal Government, including, without limitation, the
Federal Communications Commission (the “FCC”),
the Federal Aviation Administration (“FAA”)
or any successor agency of either the FCC or FAA having jurisdiction over radio
or telecommunications, and of the state, city and county in which the Building
is located.  Under this Lease, the
Landlord and its agents assume no responsibility for the licensing, operation
and/or maintenance of Tenant’s equipment. 
Tenant has the responsibility of carrying out the terms of its FCC
license in all respects.  The
Dish/Antennas shall be connected to Landlord’s power supply in strict
compliance with all applicable Building, electrical, fire and safety
codes.  Neither Landlord nor its agents
shall be liable to Tenant for any stoppages or shortages of electrical power
furnished to the Dish/Antennas or the Roof Space or the Pad because of any act,
omission or requirement of the public utility serving the Building, or the act
or omission of any other tenant, invitee or licensee or their respective
agents, employees or contractors, or for any other cause beyond the reasonable
control of Landlord, and Tenant shall not be entitled to any rental abatement
for any such stoppage or shortage of electrical power.  Neither Landlord nor its agents shall have
any responsibility or liability for the conduct or safety of any of Tenant’s
representatives, repair, maintenance and engineering personnel while in or on
any part of the Building or the Roof Space or Pad.


 


5.06         The
Dish/Antennas, the appurtenances and the Aesthetic Screening, if any, shall
remain the personal property of Tenant, and shall be removed by Tenant at its
own expense at the expiration or earlier termination of this Lease or Tenant’s
right to possession hereunder.  Tenant
shall repair any damage caused by such removal, including the patching of any
holes to match, as closely as possible, the color surrounding the area where
the equipment and appurtenances were attached. 
Tenant agrees to maintain all of the Tenant’s equipment placed on or
about the roof or in any other part of the Building in proper operating condition
and maintain same in satisfactory condition as to appearance and safety in
Landlord’s sole discretion.  Such
maintenance and operation shall be performed in a manner to avoid any
interference with any other tenants or Landlord.  Tenant agrees that at all times during the Term, it will keep the
roof of the Building and the Roof Space or Pad, as applicable, free of all
trash or waste materials produced by Tenant or Tenant’s agents, employees or
contractors.


 


5.07         In
light of the specialized nature of the Dish/Antennas, Tenant shall be permitted
to utilize the services of its choice for installation, operation, removal and
repair of the Dish/Antennas, the appurtenances and the Aesthetic Screening, if
any, subject to the


 


5

















 


reasonable
approval of Landlord.  Notwithstanding
the foregoing, Tenant must provide Landlord with prior written notice of any
such installation, removal or repair and coordinate such work with Landlord in
order to avoid voiding or otherwise adversely affecting any warranties granted
to Landlord with respect to the roof. 
If necessary, Tenant, at its sole cost and expense, shall retain any
contractor having a then existing warranty in effect on the roof to perform
such work (to the extent that it involves the roof), or, at Tenant’s option, to
perform such work in conjunction with Tenant’s contractor.  In the event the Landlord contemplates roof
repairs that could affect Tenant’s Dish/Antennas, or which may result in an
interruption of the Tenant’s telecommunication service, Landlord shall formally
notify Tenant at least 30 days in advance (except in cases of an emergency)
prior to the commencement of such contemplated work in order to allow Tenant to
make other arrangements for such service.


 


5.08         Tenant
shall not allow any provider of telecommunication, video, data or related
services (“Communication Services”)
to locate any equipment on the roof of the Building or in the Roof Space for
any purpose whatsoever, nor may Tenant use the Roof Space and/or the Pad and/or
the Dish/Antennas to provide Communication Services to an unaffiliated tenant,
occupant or licensee of another building, or to facilitate the provision of
Communication Services on behalf of another Communication Services provider to
an unaffiliated tenant, occupant or licensee of the Building or any other
building.


 


5.09         Tenant
acknowledges that Landlord may at some time establish a standard license
agreement (the “License Agreement”)
with respect to the use of roof space or pads by tenants of the Building.  Tenant, upon request of Landlord, shall
enter into such License Agreement with Landlord provided that such agreement
does not materially alter the rights of Tenant hereunder with respect to the
Roof Space or Pad, as applicable.


 


5.10         Tenant
specifically acknowledges and agrees that the terms and conditions of Section
13 of the Lease (Indemnity and Waiver of Claims) shall apply with full force
and effect to the Roof Space, the Pad and any other portions of the roof
accessed or utilized by Tenant, its representatives, agents, employees or
contractors.


 


5.11         If
Tenant defaults under any of the terms and conditions of this Section of the
Lease, and Tenant fails to cure said default within the time allowed by Section
18 of the Lease, Landlord shall be permitted to exercise all remedies provided
under the terms of the Lease, including removing the Dish/Antennas, the
appurtenances and the Aesthetic Screening, if any, and restoring the Building
and the Roof Space or Pad to the condition that existed prior to the
installation of the Dish/Antennas, the appurtenances and the Aesthetic
Screening, if any.  If Landlord removes
the Dish/Antennas, the appurtenances and the Aesthetic Screening, if any, as a
result of an uncured default, Tenant shall be liable for all costs and expenses
Landlord incurs in removing the Dish/Antennas, the appurtenances and the
Aesthetic Screening, if any, and repairing any damage to the Building, the roof
of the Building and the Roof Space or Pad caused by the installation, operation
or maintenance of the Dish/Antennas, the appurtenances, and the Aesthetic
Screening, if any.


 


6

















 


Schedule F-1


 


Location of Pad


 


1

















 


EXHIBIT G


 


PARKING AGREEMENT


 


This
Exhibit (the “Parking Agreement”)
is attached to and made a part of the Lease by and between EOP-PENINSULA OFFICE PARK, L.L.C., a Delaware limited
liability company  (“Landlord”)
and LIBERATE TECHNOLOGIES, a Delaware
corporation (“Tenant”)
for space in the Building located at 2655 Campus Drive, San Mateo, California.


 


1.             The capitalized terms
used in this Parking Agreement 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 Parking Agreement.  In the event of
any conflict between the Lease and this Parking Agreement, the latter shall
control.


 


2.             During the initial Term, Tenant agrees to
lease from Landlord and Landlord agrees to lease to Tenant for no additional
charge a total of 50 non-reserved parking
spaces in the parking facility servicing the Building (“Parking Facility”). 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.


 


3.             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.


 


4.             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 independent operator of the Parking
Facility.  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.  In such event,
Landlord shall refund any prepaid parking fee hereunder, prorated on a per diem
basis.  If such closure materially
affects Tenant’s parking rights hereunder in excess of 2 Business Days,
Landlord shall use commercially reasonable efforts to provide alternate parking
during the period of such closure.


 


5.             If Tenant shall default
under this Parking Agreement, the operator 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.


 


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RULES


 


(i)            Landlord reserves the
right to establish and change Parking Facility hours from time to time,
although, as of the date of this Lease, Tenant shall have access to the Parking
Facility on a 24-hour basis, 7 days a week, subject to the other terms of this
Parking Agreement. Tenant shall
not store or permit its employees to store any automobiles in the Parking
Facility without the prior written consent of the operator.  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 operator 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


 


(vii)         Parking stickers, key
cards or any other devices or forms of identification or entry supplied by the
operator shall remain the property of 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)        Monthly fees shall be
payable in advance prior to the first day of each month.  Failure to do so will automatically cancel
parking privileges and a charge at the prevailing daily parking rate will be
due.  No deductions or allowances from
the monthly rate will be made for days on which the Parking Facility is not
used by Tenant or its designees.


 


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


 


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


 


(xi)           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 Parking Facility immediately.


 


(xii)          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.


 


(xiii)         Tenant agrees to
acquaint all persons to whom Tenant assigns a parking space with these Rules.


 


6.             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 TENANT’S 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 RELATED TO
TENANT’S USE OF THE PARKING FACILITY OR EXERCISE OF ANY RIGHTS UNDER THIS
PARKING AGREEMENT, WHETHER OR NOT SUCH LOSS OR DAMAGE RESULTS FROM LANDLORD’S
ACTIVE NEGLIGENCE OR NEGLIGENT OMISSION. 
THE LIMITATION ON LANDLORD’S LIABILITY UNDER THE PRECEDING SENTENCE
SHALL NOT APPLY HOWEVER TO LOSS OR DAMAGE ARISING DIRECTLY FROM LANDLORD’S
WILLFUL MISCONDUCT.


 


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7.             Without limiting the provisions of Paragraph
6 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.  It is the intention of Tenant by this
instrument, to exempt and relieve Landlord from liability for personal injury
or property damage caused by negligence.


 


8.             The provisions of
Section 20 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 agreeing to
this instrument.


 


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EXHIBIT H


 


ASBESTOS NOTIFICATION


 


This
Exhibit is attached to and made a part of the Lease by and between EOP-PENINSULA OFFICE PARK, L.L.C., a Delaware limited
liability company (“Landlord”)
and LIBERATE TECHNOLOGIES, a Delaware
corporation (“Tenant”)
for space in the Building located at 2655 Campus Drive, San Mateo, California.


 


As you may know, asbestos,
because of its insulating and fire-resistant properties, was historically used
in some construction materials. 
California’s Connelly Act, as well as federal OSHA and some other
California rules, now require building owners and landlords to make certain
notifications regarding known asbestos-containing materials (“ACM”) and presumed ACMs (“PACM”). 
PACM consists of certain older construction materials which commonly
contained asbestos.  This Exhibit is
designed to provide you with the required ACM and PACM notifications.


 


ACM


 


Our asbestos survey(s) for
the Building did note the presence, location or quantity of ACM as follows:


 


•              Lobby:  mastic
and drywall joint compound behind drywall (except, removed from behind wood
paneling).


 


•              1st Floor: 
stairwell, sheet rock wall, 1-5% asbestos.


 


•              Storage room adjacent to hallway: 12” x 12” light
brown floor tile with speckles, trace asbestos.


 


•              Boiler room: 
boiler insulation (except removed from boiler door).


 


•              Roof: 
penetration mastic, 10% asbestos; and tar, 5-10% asbestos.


 


PACM


 


PACM
consists of thermal system insulation and surfacing material found in buildings
constructed prior to 1981, and asphalt or vinyl flooring installed prior to
1981.  “Surfacing material” means material that is sprayed-on,
troweled-on or otherwise applied to surfaces (such as acoustical plaster on
ceilings and fireproofing materials on structural members, or other materials
on surfaces for acoustical, fireproofing, and other purposes).  Because this Building was constructed prior
to 1981, PACM may be present.  Please be
advised that if any thermal system insulation, asphalt or vinyl flooring or
surfacing materials, of the type described above, are found to be present in
the Building, such materials must be considered PACM unless properly tested and
shown otherwise.


 


Because of the presence of  ACM and the potential presence of PACM  in the Building, we are providing you with
the following warning, which is commonly known as a California Proposition 65
warning:


 


WARNING:  This
Building contains asbestos, a chemical known to the State of California to
cause cancer.


 


In addition, you should be
aware that there are certain potential health risks that may result from
exposure to asbestos.  Because we are
not physicians, scientists or industrial hygienists, we have no special knowledge
of the health impact of exposure to asbestos. 
However, we hired an environmental consulting firm to prepare an
asbestos Operations and Maintenance Plan (“O&M
Plan”) to address asbestos matters at the Building.  The O&M Plan is designed to minimize the
potential for a release of asbestos fibers and outlines a schedule of actions
to be undertaken with respect to asbestos. 
The written O&M Plan is available for your review at our Building
Management Office during regular business hours, and a copy of the O&M Plan
will be provided to you upon request.


 


In general, the written
O&M Plan describes the risks associated with asbestos exposure and how to
prevent such exposure.  The O&M Plan
describes those risks as follows: 
asbestos is not a significant health concern unless asbestos fibers are
released and inhaled.  If inhaled,
asbestos fibers can accumulate in the lungs and, as exposure increases, the
risk of disease (such as asbestosis and cancer) increases.  However, measures to minimize exposure and
consequently minimize the accumulation of fibers, reduces the risk of adverse
health effects.


 


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The O&M Plan is designed
to safely manage the ACM and PACM in the Building and to avoid the inadvertent
disturbance of such ACM or PACM.  To
that end, the O&M Plan provides for the training of building housekeeping
and maintenance personnel so that they can conduct their work without causing a
release of asbestos fibers.  As part of
the O&M Plan, we maintain records of all asbestos-related activities and
the results of any asbestos survey, sampling or monitoring conducted in the
Building.


 


The written O&M Plan
describes a number of activities which should be avoided in order to prevent a
release of asbestos fibers in the Building. 
In particular, you should be aware that some of the activities which may
present a health risk by causing an airborne release of asbestos fibers include
moving, drilling, boring or otherwise disturbing ACM or PACM.  Consequently, such activities should not be
attempted by any person not qualified to handle ACM or PACM.  In other words, you must obtain the approval
of Building management prior to engaging in any such activities.  Please contact the Property Manager for more
information in this regard.  In
addition, please contact the Property Manager if you notice any deterioration
or disturbance of ACM or PACM.  Also,
note that the identification of ACM and PACM in this Exhibit is based on actual
knowledge and assumptions that the law requires us to make:  such materials do not necessarily comprise
all asbestos in the Building.


 


Please be aware that you may
have certain obligations under California and federal laws with regard to the
ACM and PACM in the Building, including obligations to notify your own
employees, contractors, subtenants, agents and others of the presence of ACM
and PACM.  You are solely responsible
for complying with all such applicable laws.


 


Please contact the Property
Manager if you have any questions regarding the contents of this Exhibit.


 


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EXHIBIT I


 


LETTER OF
CREDIT FORM


 


 


[Name of Financial Institution]


 


	
   

  	
  Irrevocable Standby

  	
   

  
	
   

  	
  Letter of Credit

  	
   

  
	
   

  	
  No.

  	
   

  
	
   

  	
  Issuance Date:

  	
   

  
	
   

  	
  Expiration Date:

  	
   

  
	
   

  	
  Applicant: Liberate
  Technologies

  	
   

  
								



 


Beneficiary


 


EOP- Peninsula Office Park, L.L.C.


950
Tower Lane, Suite 950


Foster
City, California 94404


Attention:  Property Manager - Peninsula Office Park
Building 4


 


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 Nine Hundred
Seventy-Two Thousand Seven Hundred Twelve U.S. Dollars and Eighty
One-Hundredths ($972,712.80) 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 an authorized signatory or agent reading:  This draw in the amount of
                                             U.S.
Dollars
($                     )
under your Irrevocable Standby Letter of Credit No.
                                                represents
funds due and owing pursuant to the terms of that certain lease by and between EOP-Peninsula Office Park, L.L.C., a Delaware
limited liability company, as landlord, and Liberate Technologies, a
Delaware corporation, as tenant, and/or any amendment to the lease or any other
agreement between such parties related to the lease.”


 


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 or by recognized
overnight courier service, that we elect not to so renew this Irrevocable
Standby Letter of Credit.  A copy of any
such notice shall also be sent, in the same manner, to:  Equity Office Properties Trust, 2 North
Riverside Plaza, Suite 2100, Chicago, Illinois 60606, Attention: Treasury
Department.  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 purportedly signed by an
authorized signatory or agent of Beneficiary 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 transfer your interest in this Irrevocable Standby Letter of Credit
from time to time and more than one time without our approval and without
charge.  In the event of a transfer, we
reserve the right to require reasonable evidence of such transfer 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
                                                           .


 


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  Very truly yours,

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  [name]

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  [title}

  	
   

  



 


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