Exhibit 10.46



 




Exhibit 10.46



LEASE AGREEMENT



[Phase 2-Buildings A-F]




     
This Lease Agreement [Phase 2-Buildings A-F]
(the “Lease”) is effective July 31, 2003, and is
entered into by and between CHARLESTON PROPERTIES, a California
General Partnership (hereinafter called
“Landlord”), and INTUIT, INC, a Delaware
Corporation (hereinafter called “Tenant”).




RECITALS


     
A.     Landlord and
Tenant are parties to one or more prior leases for the Premises,
as hereinafter defined, (“Prior Leases”).



     
B.     Pursuant to that
certain Lease Expiration Advancement Agreement being entered
into concurrently herewith (the “Advancement
Agreement”), the Prior Leases are being terminated
effective as of July 31, 2003, and this Lease shall govern
the rights and obligations between Landlord and Tenant with
respect to the Premises thereafter.



     
C.     Concurrent with
the execution of this Lease, Landlord and Tenant are entering
into that certain Lease Agreement
[Phase 1-Buildings 1-5] (the “Phase 1
Lease”) pursuant to which Landlord is leasing certain
premises defined in the Phase 1 Lease to Tenant (the
“Phase 1 Premises”). The Premises and the
Phase 1 Premises are sometimes collectively referred to in
this Lease as the “Total Premises”.



 


		
	1.	
    LEASE OF PREMISES; USE:



     
A.     Lease of
Premises: Landlord hereby leases to Tenant and Tenant hereby
hires and takes from Landlord those certain premises comprising
approximately 205,613 rentable square feet (the
“Premises”) hatch marked on EXHIBIT
“A”, attached hereto and incorporated herein by
this reference and more particularly described as follows:



     
(1) approximately 41,366 rentable square
feet located at 2650 Coast Avenue, Mountain View, California,
known by Landlord as Building B (and known by Tenant as
Building 8) and hereinafter referred to as
“Building B — 2650 Coast”. The
rentable square footage shall be deemed to equal 41,366 rentable
square feet regardless of the actual square footage;



     
(2) approximately 58,111 rentable square
feet located at 2700 Coast Avenue, Mountain View, California,
known by Landlord as Building C (and known by Tenant as
Building 7) and hereinafter referred to as
“Building C — 2700 Coast”. The
rentable square footage shall be deemed to equal 58,111 rentable
square feet regardless of the actual square footage;



     
(3) approximately 43,231 rentable square
feet located at 2750 Coast Avenue, Mountain View, California,
known by Landlord as Building D (and known by Tenant as
Building 6) and hereinafter referred to as
“Building D — 2750 Coast”. The
rentable square footage shall be deemed to equal 43,231 rentable
square feet regardless of the actual square footage; and



     
(4) approximately 62,905 rentable square
feet located at 2675 Coast Avenue, Mountain View, California,
known by Landlord as Building E (and known by Tenant as
Building 11) and hereinafter referred to as
“Building E — 2675 Coast”. The
rentable square footage shall be deemed to equal 62,905 rentable
square feet regardless of the actual square footage.



     
As used herein the Complex shall mean and
include all of the land hatch marked on
Exhibit “B”, attached hereto, and all of
the buildings, improvements, fixtures and equipment now or
hereafter situated on said land. The parties acknowledge that
the rentable square footage of the Complex is approximately
614,976 square feet and that such rentable square footage shall
be deemed to equal 614,976 square regardless of the actual
square footage. As used herein, the terms Building or
Buildings shall mean the buildings either wholly
constituting a portion of the Premises or the buildings in which
any portion of the Premises are a part unless otherwise
referenced.



     
Said letting and hiring is upon and subject to
the terms, covenants and conditions hereinafter set forth and
Tenant covenants as a material part of the consideration for
this Lease to perform and observe each and all of said terms,
covenants and conditions. This Lease is made upon the conditions
of such performance and observance.



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Phase 2-Buildings A-F

August 4, 2003-Final



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B.     Use:     Tenant
shall use the Premises only in conformance with applicable
governmental laws, regulations, rules and ordinances for the
purpose of office, sales, research and development, and related
uses necessary for Tenant to conduct its business, provided such
uses are permitted and conform to city zoning laws and all other
governmental laws, regulations, rules and ordinances, and for no
other purpose. Tenant shall not do or permit to be done in or
about the Premises or the Complex, nor bring or keep or permit
to be brought or kept in or about the Premises or the Complex,
anything which is prohibited by or will in any way increase the
existing rate of (or otherwise affect) fire or any insurance
covering the Complex or any part thereof, or any of its
contents, or will cause a cancellation of any insurance covering
the Complex or any part thereof, or any of its contents. Tenant
shall not do or permit to be done anything in, on or about the
Premises or the Complex which will in any way obstruct or
interfere with the rights of other tenants or occupants of the
Complex or injure or annoy them, or use or allow the Premises to
be used for any improper, immoral, unlawful or objectionable
purpose, nor shall Tenant cause, maintain or permit any nuisance
in, on or about the Premises or the Complex. Tenant shall not
conduct any sale by auction on the Premises. Tenant shall not
place any loads upon the floors, walls, or ceiling, which
endanger the structure, or place any harmful fluids or other
materials in the drainage system of any of the Buildings, or
overload existing electrical or other mechanical systems. Tenant
shall not dump any waste materials or refuse upon any part of
the Premises or outside of the Buildings, except in trash
containers placed inside exterior enclosures designated by
Landlord for that purpose or inside of the Building proper where
designated by Landlord. Tenant shall not store any materials,
supplies, equipment, finished products or semi-finished
products, raw materials or articles of any nature upon the
Premises or on any portion of common area of the Complex. Tenant
shall not utilize any loudspeaker or other device, system or
apparatus, which can be heard outside the Premises, without the
prior written consent of Landlord. Tenant shall not commit or
suffer to be committed any waste in or upon the Premises. Tenant
shall comply with any existing covenant, condition, or
restriction (“CC&R’s”) affecting the
Premises. A copy of all existing CC&Rs are attached hereto
as Exhibit “C”. The provisions of this
Paragraph are for the benefit of Landlord only and shall not be
construed to be for the benefit of any tenant or occupant of the
Complex.



 


		
	2.	
    TERM



     
A.     Term: The
term of this Lease shall be for a period of
twelve (12) years five (5) months and
shall commence on August 1, 2003, and end on
December 31, 2015.



     
B.     Commencement
Date: Tenant currently occupies the Premises, therefore,
Possession shall be deemed tendered on August 1, 2003, the
date on which this Lease shall commence (hereinafter
“Commencement Date”).



     
C.     Options To
Extend: Provided (i) Tenant is not in default after any
applicable notice and cure period under any of the terms,
covenants or conditions of this Lease or of the Phase 1
Lease and (ii) Tenant and/or its Permitted Assignees are
occupying or conducting business from at least 200,000 rentable
square feet of the Total Premises, and subject to the terms and
conditions set forth hereafter, Tenant is hereby granted the
option to extend the term of this Lease for the Premises (as
constituted as of the commencement date of any Option Period)
leased hereunder for two consecutive five year
periods (individually “Option Period”) which must be
exercised separately. Tenant shall notify Landlord in writing of
Tenant’s exercise of its option to extend the Lease no less
than 360 days prior to the then existing Lease expiration
date. This Lease shall be extended for a period of five years
commencing upon the day after the then expiring Lease term and
shall expire five years later. The monthly Base Rent during the
extended term shall be as set forth in Paragraph 2C1 below.
This option to extend can be exercised by Tenant for its use of
the Premises (including any permitted subtenants and affiliates)
and may be transferred or assigned to any subtenant, assignee or
other party.



     
    1.     Fair
Market Rental Rate For Option Periods: Base Rent for the
first year of any Option Period shall be 95% of the fair market
rate. The fair market rate for the option periods shall be
defined as the prevailing market rate with interim adjustments
(if any) then charged for comparable space of comparable quality
in the immediate Mountain View/Shoreline market area. Landlord
shall notify Tenant of such rate as reasonably determined by
Landlord at least two hundred and ten (210) days prior to
the beginning of any Option Period, and thereafter, such Base
Rate shall be increased by normal and customary rent increases
(if any) as determined by Landlord. Landlord and Tenant shall
attempt to agree in writing on such fair market rate and any
normal and customary increases. If Landlord and Tenant do not
agree on the fair market rate for the Premises and/or any normal
and customary increases by that date which is one hundred
eighty (180) days prior to the beginning of the option
term, then Landlord and Tenant shall each select, not later than
one hundred fifty (150) days prior to the commencement of
the extension term, a licensed MAI appraiser (the
“Appraisers”) with a minimum five (5) years
experience, and knowledge of the Mountain View area market to
determine the fair market rate for the Premises. If the
Appraisers are unable to agree as to the fair market rate and
normal and customary increases by that date which is one hundred
twenty (120) days


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August 4, 2003-Final



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prior to the commencement of the extension term,
then the Appraisers shall, within ten (10) days thereafter,
mutually select a third licensed MAI appraiser (the
“Arbitrator”) who has the same minimum qualifications
as the Appraisers and who has not previously represented either
party. If the Appraisers cannot agree on the Arbitrator, either
party may apply to the Santa Clara County Superior Court,
ex parte with at least three business days notice to the
other party, for the appointment of the Arbitrator and the court
is authorized to appoint an Arbitrator on an ex parte
basis. Each Appraiser shall submit to the Arbitrator his or her
determination of the fair market rate for the Premises and
normal and customary increases, and the support therefore, and
the Arbitrator shall decide which Appraiser has most accurately
determined the fair market rate and the normal and customary
increases, which shall constitute the fair market rate and the
normal and customary increases for purposes of this
subparagraph, and which decision shall be final and binding on
both Landlord and Tenant. Landlord and Tenant shall each pay
their own Appraiser’s fees and costs and shall each pay
one-half ( 1/2) of the Arbitrator’s fees and costs.



     
2.     Validity of
Options: The options to extend granted to Tenant shall not
be deemed to be properly exercised if at the time of exercise,
any of the following events exist: (a) Tenant is in default
of this Lease or the Phase 1 Lease beyond any applicable
notice and cure period; and/or (b) Tenant has assigned its
rights and obligations under this Lease or the Phase 1
Lease other than pursuant to a Permitted Assignment as defined
under Paragraph 19(D), below; and/or (c) Tenant and/or
its Permitted Assignees are no longer occupying or conducting
business from at least 200,000 rentable square feet of the Total
Premises. Tenant’s Options to Extend are personal to the
original Tenant executing this Lease and Permitted Assignees,
and may not be assigned or exercised, voluntarily or
involuntarily, by or to, any person or entity other than the
original Tenant and/or Permitted Assignees.




The options to extend granted to Tenant hereunder
shall continue to be valid in the event Tenant exercises its
termination option pursuant to Paragraph 44, below, and the
options shall apply to the Premises as constituted at the
beginning of any Option Period.




3.     POSSESSION:     Tenant
is currently in possession of the Premises under and pursuant to
the Prior Leases and shall remain in possession of the Premises
as of the Commencement Date under and pursuant to this Lease.




4.     RENT



     
A.     Base Rent:
Tenant agrees to pay to Landlord at such place as Landlord may
designate by prior written notice without deduction, offset,
prior notice, or demand, and Landlord agrees to accept as Base
Rent for the leased Premises, in lawful money of the United
States of America, payable on or before the first day of each
month of the Lease Term, the following monthly amounts for the
time periods as indicated below:




	 	 	 
	
    
    August 1, 2003 – December 31,
    2003
    

    	 	
    $0.00 [subject to Par. 4B below]
    
	
    
    January 1, 2004 – July 31, 2004
    

    	 	
    $246,735.60
    
	
    
    August 1, 2004 – July 31, 2005
    

    	 	
    $254,137.66
    
	
    
    August 1, 2005 – July 31, 2006
    

    	 	
    $261,761.78
    
	
    
    August 1, 2006 – July 31, 2007
    

    	 	
    $269,614.63
    
	
    
    August 1, 2007 – July 31, 2008
    

    	 	
    $277,703.06
    
	
    
    August 1, 2008 – July 31, 2009
    

    	 	
    $286,034.15
    
	
    
    August 1, 2009 – July 31, 2010
    

    	 	
    $294,615.17
    
	
    
    August 1, 2010 – July 31, 2011
    

    	 	
    $303,453.62
    
	
    
    August 1, 2011 – July 31, 2012
    

    	 	
    $312,557.22
    
	
    
    August 1, 2012 – July 31, 2013
    

    	 	
    $321,933.93
    
	
    
    August 1, 2013 – July 31, 2014
    

    	 	
    $331,591.94
    
	
    
    August 1, 2014 – July 31, 2015
    

    	 	
    $341,539.69
    
	
    
    August 1, 2015 – December 31, 2015
    

    	 	
    $351,758.88
    




     
B.     Base Rent
Abatement: For the period of August 1, 2003 through
December 31, 2003 (the “Base Rent Abatement
Period”), the monthly Base Rate of $246,735.60 shall be
abated and no Base Rent will be due (the “Basic Rent
Abatement”) during the Base Rent Abatement Period; however,
Tenant will be responsible for all Additional Rent expenses as
outlined in Paragraph 4E from the Commencement Date of the
Lease.



     
It is acknowledged by the parties that the Base
Rent Abatement, set forth above, is in lieu of Landlord
providing any tenant improvement allowance to Tenant for the
installation of tenant improvements in
Building D — 2750 Coast.



     
C.     Time for
Payment: In the event that the term of this Lease commences
on a date other than


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August 4, 2003-Final



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the first day of a calendar month, on the date of
commencement of the term hereof Tenant shall pay to Landlord as
rent for the period from such date of commencement to the first
day of the next succeeding calendar month that proportion of the
monthly rent hereunder which the number of days between such
date of commencement and the first day of the next succeeding
calendar month bears to thirty (30). In the event that the term
of this Lease for any reason ends on a date other than the last
day of a calendar month, on the first day of the last calendar
month of the term hereof Tenant shall pay to Landlord as rent
for the period from said first day of said last calendar month
to and including the last day of the term hereof that proportion
of the monthly rent hereunder which the number of days between
said first day of said last calendar month and the last day of
the term hereof bears to thirty (30).




     
D.     Late
Charge: Notwithstanding any other provision of this Lease,
if Tenant is in default in the payment of Base Rent or
Additional Rent as set forth in this Paragraph 4, or any
other amount due under this lease, or any part thereof, when
due, Tenant agrees to pay Landlord, as additional rent, in
addition to the delinquent amount due, a late charge for each
payment delinquent more than five (5) days. Said late
charge shall equal five (5%) percent of the amount in
default. Notwithstanding the foregoing, Landlord hereby waives
any late charge applicable to the first two instances in any
calendar year during the Term of this Lease in which Tenant
fails to pay rent on a timely basis as long as Tenant pays such
rent within 5 business days after written notice to Tenant
that the rent is past due. Such late charge is in addition to
any other damages incurred by Landlord and is not a waiver of
any such other damages.



     
E.     Additional
Rent:




		
	 	     
    1.     Additional
    Rent Obligations. Beginning with the Commencement Date of
    the term of this Lease, Tenant shall pay to Landlord in addition
    to the Base Rent and as Additional Rent the following:
    





		
	 	     
    (a) Tenant’s Proportionate Share (as
    defined below) of all Taxes relating to the Complex as set forth
    in Paragraph 12, and
    
	 
	 	     
    (b) Tenant’s Proportionate Share of all
    insurance premiums relating to the Complex, as set forth in
    Paragraph 15 and as limited by Paragraph 4E6 below, and
    
	 
	 	     
    (c) Tenant’s Proportionate Share of
    expenses for the operation, management, maintenance and repair
    of the Buildings (including common areas of the Buildings) and
    Common Areas of the Complex as set forth in Paragraphs 7
    and 11, and
    
	 
	 	     
    (d) All charges, costs and expenses, which
    Tenant is required to pay hereunder, together with all interest
    and penalties, costs and expenses including, without limitation,
    attorney’s fees and expenses, that may be incurred in the
    event of Tenant’s failure to pay such amounts. In the event
    of nonpayment by Tenant of Additional Rent, Landlord shall have
    all the rights and remedies with respect thereto as Landlord has
    for nonpayment of rent.
    





		
	 	     
    2.     Estimates.
    Tenant shall pay to Landlord monthly, in advance, Tenant’s
    prorata share of an amount estimated by Landlord to be
    Landlord’s approximately average monthly expenditure for
    such Additional Rent items. On or before March 31 of each
    year, Landlord shall provide Tenant with a reconciliation
    between the actual expenditures for Additional Rent items,
    Tenant’s Proportionate Share of such items, and the
    estimated amounts collected from Tenant, which reconciliation,
    once delivered to Tenant, shall be binding upon Landlord. Tenant
    shall pay to Landlord, within thirty (30) days after receipt of
    the reconciliation, its Proportionate Share of the actual
    expenses expended by Landlord in excess of said estimated
    amounts, or Landlord shall refund to Tenant any amount of
    estimated payments made by Tenant in excess of Tenant’s
    Proportionate Share of Landlord’s actual expenditures for
    said Additional Rent items. Landlord shall provide Tenant
    reasonably adequate supportive documentation to the
    reconciliation. In the event Landlord fails to provide a
    reconciliation on or before the March 31 following the
    applicable calendar year, Tenant shall deliver a written notice
    to Landlord requesting such reconciliation and Landlord shall
    have thirty (30) days from the date such notice is received
    to provide Tenant with a reconciliation. If the Landlord
    thereafter fails to provide Tenant with a reconciliation during
    the thirty (30) day cure period, Landlord shall not be
    entitled to collect any shortfall between actual expenditures
    and the estimated amounts collected from Tenant; provided,
    however, that the foregoing shall not excuse Landlord from
    providing the required reconciliation within the cure period set
    forth above. In the event Landlord fails to provide Tenant with
    a reconciliation by March 31 of any year and Tenant fails
    to deliver the notice hereinabove set forth, Landlord shall not
    be restricted in collecting any shortfall between actual
    expenditures and the estimated amounts collected from Tenant. In
    addition to the foregoing, Landlord and Tenant shall work
    together, in good faith, to enable Landlord to provide Tenant
    with a, a written budget supporting Landlord’s estimates of
    Additional Rent items to be collected from Tenant for the
    ensuing calendar year on or before January 15 of each year.
    In
    



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August 4, 2003-Final



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the event any budgets change during such year,
Landlord shall provide Tenant with no less than thirty
(30) days’ prior written notice of the change and such
notice may provide that estimates attributable to periods prior
to the notice to be paid within thirty (30) days.




     
3.     Survival/Review.
The respective obligations of Landlord and Tenant under this
Paragraph shall survive the expiration or other termination of
the term of this Lease, and if the term hereof shall expire or
shall otherwise terminate on a day other than the last day of a
calendar year, the actual Additional Rent incurred for the
calendar year in which the term hereof expires or otherwise
terminates shall be determined and settled on the basis of the
statement of actual Additional Rent for such calendar year and
shall be prorated in the proportion which the number of days in
such calendar year preceding such expiration or termination
bears to 365. Tenant shall have the right to review
Landlord’s books regarding the calculation of Additional
Rent for the three preceding one year periods, and any such
review shall take place at Landlord’s, or Landlord’s
property manager’s offices (at Landlord’s election),
during normal business hours reasonable advance written notice
from Tenant.



     
4.     Calculation of
Proportionate Share of Complex. For purposes of this Lease,
and except as set forth below, the term “Proportionate
Share” means the total rentable square footage of the
Premises divided by the total rentable square footage of the
Complex. The total rentable square footage of the Complex shall
be deemed to equal 614,976 rentable square feet regardless of
the actual square footage. Consequently, as of the Commencement
Date of this Lease, Tenant’s Proportionate Share of the
Complex equals thirty-three and 43/100 percent (33.43%).
Tenant’s Proportionate Share shall be adjusted to account
for any changes in the rentable square footage of the Premises
and/or any changes in the rentable square footage of the Complex
that occur following the execution of this Lease. Furthermore,
as to expenses that relate to part but not all of the Complex,
Landlord may, but shall not be required to, reasonably,
equitably and consistently though out the Complex allocate such
expenses to that portion of the Complex to which such expenses
apply and, in that event, Tenant’s Proportionate Share as
to such expenses shall be as reasonably and equitably determined
by Landlord (and such figure shall be deemed Tenant’s
“Proportionate Share” as set forth herein with respect
to such expenses).



     
5.     Property
Management Fee Limitation. Landlord agrees that
Tenant’s obligation to reimburse Landlord for property
management fees shall be limited to two percent (2%) of the Base
Rent; provided, however, during the Rent Abatement Period,
Intuit shall pay a property management fee equal to two percent
(2%) of the Base Rent that is being abated as though such Base
Rent was not being abated.



     
6.     Earthquake
Insurance Expense Limitation. Landlord agrees that
Tenant’s Pro Rata Share of earthquake insurance premiums
shall be limited to the lesser of the following:
(a) Tenant’s Pro Rata Share based on fifty percent
(50%) of the premiums for such insurance or (b) $0.04 per square
foot of the Premises per month which $0.04 figure shall be
increased by three percent (3%) on each anniversary of the
Commencement Date of this Lease. Further, Tenant shall not
obligated to reimburse Landlord for any earthquake insurance
deductibles. Any exclusions hereunder shall also be excluded
from reimbursement under any other Paragraph of this Lease
including, without limitation, reimbursements under
Paragraph 4(E)(1)(b), above.



     
7.     Payments.
Any payments required to be made by Tenant for Additional Rent
are required to be made by check or instrument separate from
that check or instrument used by Tenant to make any payments for
Base Rent pursuant to Paragraph 4 A and shall be due
at the time Base Rent is due hereunder. With Landlord’s
permission, Tenant may pay by wire transfer to such account as
Landlord may designate or by a single check Additional Rent
along with Base Rent and any rent due and payable under the
Phase 1 Lease.



     
8.     Taxes
Billings. Taxes shall be billed separately and prorated for
periods of occupancy and shall be due on the later of December
1st and April 1st of each calendar year, or thirty
(30) days following receipt of the tax bill by tenant.



     
9.     Review of
Records. Tenant shall have the right, during normal business
hours and at Tenant’s own expense, to audit Landlord’s
records concerning Additional Rent items. In the event a
discrepancy of greater than 3% of Tenant’s correct share of
costs is discovered and, as a result of the error, Tenant
overpaid Additional Rent, Landlord shall pay the cost of
Tenant’s out of pocket audit costs to third parties and
shall immediately refund to Tenant the amount of the
discrepancy. In the event a discrepancy of greater than 3% of
Tenant’s correct share of costs is discovered and, as a
result of the error, Tenant underpaid Additional Rent, Tenant
must disclose the same to Landlord, and Tenant shall pay to
Landlord the additional monies due less Tenant’s out of
pocket audit costs to third parties.



     
10.     Prior
Amortization. Under the Prior Leases Tenant had been
reimbursing Landlord for some expenses incurred by Landlord
during the term of the Prior lease on an amortized basis, and
not all of


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August 4, 2003-Final



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such expenses have been reimbursed by Tenant.
Tenant agrees that the remaining portion of such expenses that
have not yet been reimbursed by Tenant shall continue to be paid
by Tenant, as Additional Rent hereunder, pursuant to the same
reimbursement plan as under the Prior Leases as though the Prior
Leases were not terminated.




     
F.     Place of
Payment of Rent and Additional Rent: All Base Rent hereunder
and all payments hereunder for Additional Rent shall be paid to
Landlord and shall be delivered to the Landlord’s property
manager, Willis and Company, at 1793 Lafayette Street,
Suite 220, Santa Clara, 95050, or to such other person or
to such other place as Landlord may from time to time designate
in writing; provided, however, that Landlord must provide Tenant
with at least thirty (30) days prior notice of any change to the
person or place that Base Rent and/or Additional Rent is to be
paid hereunder. All payments must actually be received by their
due date.



     
G.     Security
Deposit: A security deposit shall not be required under this
Lease.




5.     RULES AND
REGULATIONS AND COMMON AREA: Subject to the terms and
conditions of this Lease and such Rules and Regulations as
Landlord may from time to time prescribe, Tenant and
Tenant’s employees, invitees and customers shall, in common
with other occupants of the Complex in which the Premises are
located, and their respective employees, invitees and customers,
and others entitled to the use thereof, have the non-exclusive
right to use the access roads, parking areas, and facilities as
may be provided and designated by Landlord from time to time for
the general use and convenience of the occupants of the Complex
in which the Premises are located, which areas and facilities
are referred to herein as “Common Area”. This right
shall terminate upon the termination of this Lease. Landlord
reserves the right from time to time to make reasonable changes
in the shape, size, location, amount and extent of Common Area
including elimination of portions of the common area. All such
changes shall not unreasonably affect Tenant’s access or
use of the Premises and shall not diminish Tenant’s parking
rights. Landlord further reserves the right to promulgate such
reasonable and nondiscriminatory rules and regulations relating
to the use of the Common Area, and any part or parts thereof, as
Landlord may deem appropriate for the best interests of the
occupants of the Complex. The Rules and Regulations shall be
binding upon Tenant upon delivery of a copy of them to Tenant,
and Tenant shall abide by them and cooperate in their
observance. Landlord may reasonably amend such Rules and
Regulations from time to time, with at least thirty
(30) days advance notice to Tenant, in a non-discriminatory
manner, and all amendments shall be effective no sooner than
thirty (30) days after delivery of a copy to Tenant.
Landlord shall enforce said Rules and Regulations against Tenant
in a nondiscriminatory manner, and shall enforce said Rules and
Regulations against all other tenants and occupants in the
Complex whose violation of said Rules and Regulations materially
and detrimentally impacts Tenant’s business.
Notwithstanding the foregoing, if there is a conflict between
the Rules and Regulations and the terms of this Lease, the terms
of this Lease shall control.



     
Landlord shall operate, manage and maintain the
Common Area in a first class standard of maintenance and repairs
and shall keep the Common Areas in good and sanitary condition.




6.     PARKING:
Tenant shall have the right to use with other tenants or
occupants of the Complex its Proportionate Share of the non
exclusive non reserved parking spaces in the common parking
areas of the Complex. Tenant agrees that Tenant, Tenant’s
employees, agents, representatives and/or invitees shall not use
parking spaces outside of the Complex parking allocated to
Tenant hereunder. Landlord shall have the right, at
Landlord’s sole discretion, to specifically designate the
location of Tenant’s parking spaces or any other
tenant’s parking spaces within the common parking areas of
the Complex, in which event Tenant agrees that Tenant,
Tenant’s employees, agents, representatives and/or invitees
shall not use any parking spaces other than those parking spaces
specifically designated by Landlord for Tenant’s use. Said
parking spaces, if specifically designated by landlord to
Tenant, may be relocated by Landlord at any time, and from time
to time. Landlord reserves the right, at Landlord’s sole
discretion, to rescind any specific designation of parking
spaces, thereby returning Tenant’s parking spaces to the
common parking area. Landlord shall give Tenant written notice
of any change in Tenant’s parking spaces; provided,
however, that in no event shall any such change materially
diminish the number of parking spaces available to Tenant.
Tenant shall not, at any time, park, or permit to be parked, any
trucks or vehicles adjacent to the loading areas so as to
interfere in any way with the use of such areas, nor shall
Tenant at any time park, or permit the parking of Tenant’s
trucks or other vehicles or the trucks and vehicles of
Tenant’s suppliers or others, in any portion of the common
area not designated by Landlord for such use by Tenant. Tenant
shall not park any inoperative vehicles or equipment on any
portion of the common parking area or other common areas of the
Complex. Tenant agrees to assume responsibility for compliance
by its employees with the parking provision contained herein. If
Tenant or its employees park in other than such designated
parking areas, then Landlord may charge Tenant, as an additional
charge, and Tenant agrees to pay, Fifty Dollars ($50.00) per day
for each day or partial day each such vehicle is parked in any
area other than that designated. Tenant hereby authorizes
Landlord at Tenant’s sole expense to tow away from the
Complex any vehicle belonging to Tenant or Tenant’s
employees parked in violation of these provisions, or to attach
violation notices to such vehicles. Tenant shall use the parking
areas for vehicle parking only, and shall not use the parking
areas for


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storage.





7.     EXPENSES OF
OWNERSHIP, OPERATION, MANAGEMENT AND MAINTENANCE OF THE COMPLEX,
PREMISES AND BUILDING IN WHICH THE PREMISES ARE
LOCATED


     
A.     Landlord’s
Maintenance Obligations; Tenant’s Share: Landlord, at
Landlord’s expense (but subject to any reimbursement
obligations set forth in this Lease), shall maintain, in a first
class standard of maintenance and repair, (i) all Common
Areas in the Complex, (ii) the structural portion of the
Premises, (iii) all exterior portions of the Premises
(including, without limitation, the foundations, exterior walls,
exterior roof, and the roof membrane) excluding, however,
exterior doors, loading dock doors, door encasements, exterior
windows, window frames, plate glass, glazing, loading docks, and
HVAC systems, (iv) landscaped areas, (v) lakes,
(vi) parking lots, (vii) sidewalks,
(viii) driveways, (ix) exterior fixtures and exterior
electrical (excluding Tenant’s signage and items installed
by Tenant), (x) mechanical and plumbing systems outside of
Tenant’s Premises.



     
Unless otherwise set forth in this Lease,
expenses for the repair or replacement of the structural
portions of the Premises (structural walls, structure of the
roof, and Building foundations) shall not be charged to Tenant
as Additional Rent items unless this Lease expressly provides to
the contrary, or unless the need for such repair or replacement
was caused by the negligence, intentional misconduct or breach
of this Lease by Tenant or any of Tenant’s invitees,
guests, or agents.



     
Except as set forth in Paragraph 7D below,
or except as otherwise specifically excluded pursuant to the
terms of this Lease, as Additional Rent and in accordance with
Paragraph 4E of this Lease, Tenant shall pay to Landlord
Tenant’s Proportionate Share of all expenses of the
ownership, operation, management, maintenance and repair of the
Complex, including, but not limited to, license, permit and
inspection fees; utility charges associated with exterior
landscaping and lighting (including water and sewer charges);
all charges incurred in the maintenance of landscaped areas,
lakes, parking lots, sidewalks, driveways; maintenance, repair
and replacement of all exterior fixtures and exterior
electrical, mechanical and plumbing systems; exterior surfaces
of the buildings; salaries and employee benefits of personnel
employed by Landlord who provide services for the Complex which
is directly attributable to services provided to the Complex,
and payroll taxes applicable thereto and supplies, materials,
equipment and tools.



     
1.     Structural
Alterations to Comply With Laws. If, on the date this Lease
is fully executed, structural alterations (structural walls,
structure of the roof, and Building foundations) are required to
comply with applicable laws, or in the event such applicable
laws are changed which changes require such structural
alterations, the cost of such alterations shall be borne by
Landlord and Tenant shall not be required to reimburse Landlord
for any share of such costs, unless such alterations are caused
by any of the following in which case Tenant shall bear the sole
responsibility and costs for performing such alterations:



          
(a) Tenant’s unique use of the
Premises, as opposed to general office use,



          
(b) damage to the Premises (other than
normal wear and tear) caused by Tenant, or any employee,
contractor, agent, invitee, guest, or supplier of Tenant, or



          
(c) alterations or improvements constructed
by or on behalf of Tenant that require such alterations to be
made, as opposed to alterations that trigger an unrelated code
compliance upgrade (for example: if construction by Tenant of
additional offices require extra structural support for such
offices, the cost of such extra support shall be borne entirely
by Tenant, however, if construction of additional offices
triggers the requirement to install seismic retrofitting to
comply with a previous years code change, which code change is
not related to the additional offices, but which is the result
of any new construction, then Landlord shall bear the
cost of such code upgrade alterations).



     
It is acknowledged that Landlord shall only be
required to make such alterations that are actually
required to prevent the Premises from being in violation of
such codes at such time, as opposed to making alterations to
bring the Premises up to current building codes even though
existing improvements do not require current alterations because
such improvements are “grandfathered”.



     
2.     Capital
Expenditures. Tenant’s Proportionate Share of the total
cost of any individual capital expenditure (as defined under
generally accepted accounting principals (“GAAP”))
which exceeds $20,000 which are not otherwise excluded from
Tenant’s reimbursement requirements shall be amortized
monthly on a straight line basis over the actual useful life of
the capital expenditure (in Landlord’s reasonable and good
faith estimate) (“Capital Expenditure Amount”).
Landlord shall be entitled to immediately expense any individual
capital expenditure the total cost of which is less than
$20,000, and such capital expenditure shall not be deemed a
Capital Expenditure Amount under this paragraph. The monthly
amortization of any Capital Expenditure Amount


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shall be over such number of months of actual
useful life of the improvement, as reasonably determined by
Landlord, and shall include interest in the amount of 5%. The
$20,000 amount, referred to above, shall be increased on each
anniversary of the Commencement Date of this Lease based upon
the change in the Consumer Price Index. Such annual adjustments
shall be calculated upon the basis of the percentage change in
the Consumer Price Index, All Urban Consumers, San
Francisco-Oakland Metropolitan Area, All Items (1982-84 equals
100), as published by the U.S. Department of Labor, Bureau of
Labor Statistics, as such Index was revised effective January,
1987 (the “Index”). The Index published for the month
closest to the adjustment date shall be compared with the Index
published for the month closest to the beginning of the
immediately preceding Lease year to determine the percentage
increase in such $20,000 (as it may have been adjusted for prior
years). If the Index is discontinued or revised during the term,
such other government index or computation with which it is
replaced shall be used in order to obtain substantially the same
result as would be obtained if the Index had not been
discontinued or revised. Except as otherwise provided in this
Lease, all other capital expenditures shall be reimbursed,
without amortization, as set forth in Paragraph 4 E of
this Lease.



     
B.     Buildings and
Premises: Notwithstanding anything contained in the Lease to
the contrary, Tenant shall, at its sole cost and expense, keep
and maintain (i) the interior of the Premises (including
appurtenances), (ii) exterior doors, loading dock doors,
and door encasements, (iii) exterior windows, window
frames, plate glass, and glazing, and every part thereof in a
first class standard of maintenance and repair, and in good and
sanitary condition. Tenant’s maintenance and repair
responsibilities herein referred to include, but are not limited
to: all windows, window frames, plate glass, glazing, truck
doors, loading docks, interior plumbing systems (such as
interior water and drain lines, sinks, toilets, faucets, drains,
showers and water fountains), interior electrical systems (such
as interior panels, conduits, outlets, lighting fixtures, lamps,
bulbs, tubes, ballasts), heating and air-conditioning systems
exterior or interior (such as compressors, fans, air handlers,
ducts, mixing boxes, thermostats, time clocks, boilers, heaters,
supply and return grills), all interior improvements in the
Premises including but not limited to wall coverings, window
coverings, carpets, floor coverings, partitioning, ceilings,
doors (both interior and exterior, including closing mechanisms,
latches, locks), skylights, automatic fire extinguishing
systems, and all other interior improvements of any nature
whatsoever.



     
C.     Tenant
Waivers: Tenant hereby waives all rights under, and benefits
of, subsection 1 of Section 1932 and Section 1941
and 1942 of the California Civil Code and under any similar law,
statute or ordinance now or hereafter in effect.



     
D.     Exclusion from
Additional Rent: “Additional Rent” as used herein
shall not include and are excluded, as reimbursable costs from
Tenant to Landlord all of the following:



          
1.     Any fines, costs,
penalties or interest.



          
2.     Rental payments
pursuant to any ground lease of land underlying all or any of
the Complexes.



          
3.     Any costs of any
services sold or provided to tenants or other occupants for
which Landlord or Managing Agent is entitled to be reimbursed by
such tenants or other occupants.



          
4.     Acquisitions
costs for sculptures, paintings, or other objects of art.



          
5.     Costs for which
Landlord has been compensated by a management fee; for example,
accounting costs necessary to operate the Complex and report its
financial status to the Landlord.



          
6.     Depreciation
(except as specifically provided above).



          
7.     Interest on and
amortization of debts.



          
8.     Leasehold
improvements including redecorating spaces occupied or to be
occupied by other tenants of the Complex.



          
9.     Brokerage
commissions and advertising expenses for procuring new tenants
of the Complex.



          
10.     Financing or
refinancing costs.



          
11.     The cost of any
item included as and Additional Rent item to the extent that
such cost is reimbursed by an insurance company, a condemnor, a
tenant, or any other third party; provided, however, that if a
reimbursed item was previously included as an Additional Rent
item, and such reimbursement shall reduce the


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Additional Rent items in the period in which the
reimbursement occurs.



          
12.     Expenses, costs,
liabilities, fines or penalties incurred as a result of or
attributable to Landlord’s or its agents’,
employees’, contractors’, guests’ or
invitees’ negligent acts or omissions, breach of lease or
contract or violation of governmental laws, statutes, codes,
ordinances, rules, regulations, orders or other governmental
requirements.



          
13.     Accounting,
legal and other fees incurred in connection with preparation,
negotiation or enforcement of leases, or any costs associated
with preparing any space for occupancy, including any tenant
improvement work or allowance for such space to be leased.



          
14.     Labor costs,
including salaries, fringe benefits and other costs for other
than full-time on-site personnel to the extent such costs are
attributable to work at a complex other than the Complex.



          
15.     Any costs or
expenses associated with or in any way related to Hazardous
Materials (as defined in Paragraph 42, below) or the
monitoring, remediation or removal thereof.



          
16.     Any costs or
expenses not actually and reasonably incurred by Landlord and
believed by Landlord in good faith to be properly included as an
Additional Rent item.



          
17.     Any costs or
expenses which are, by the terms of this Lease, required to be
borne solely by Landlord without reimbursement.




8.     ACCEPTANCE AND
SURRENDER OF PREMISES: Landlord represents to its knowledge
without any investigation, nor the duty to investigate, and with
the parties acknowledgement that the Tenant has been occupying
the Premises for the past eight (8) years, that as of the
Commencement Date of this Lease, Landlord is not aware of any
defect in the roofs, structural components, heating,
ventilating, and air conditioning systems, electrical and
plumbing systems, parking lots and site lighting, of the
Premises and/or the Complex upon which the Premises are located.
Subject to Landlord’s representations and warranties
contained elsewhere in this Lease, Tenant accepts the Premises
as being in good and sanitary order, condition and repair and
accepts the Premises in their present condition and without
representation or warranty by Landlord as to the condition of
the Premises or as to the use or occupancy which may be made
thereof. Any exceptions to the foregoing must be by written
agreement executed by Landlord and Tenant. Tenant agrees on the
last day of the Lease term, or on the sooner termination of this
Lease, to surrender the Premises promptly and peaceably to
Landlord in good condition and repair (damage by Acts of God,
fire or normal wear and tear excepted), with all interior walls
repaired, if damaged, and with all alterations, additions and
improvements which may have been made in, to, or on the Premises
(except movable trade fixtures installed at the expense of
Tenant), except as to alterations which Tenant is required to
remove or restore as set forth below. Tenant, on or before the
end of the term or sooner termination of this Lease, shall
remove all of Tenant’s personal property and trade fixtures
from the Premises, and all property not so removed on or before
the end of the term or sooner termination of this Lease shall be
deemed abandoned by Tenant and title to same shall thereupon
pass to Landlord without compensation to Tenant. Landlord may,
upon termination of this Lease, remove all moveable furniture
and equipment so abandoned by Tenant, at Tenant’s sole
cost, and repair any damage caused by such removal at
Tenant’s sole cost. Nothing contained herein shall be
construed as an extension of the term hereof or as consent of
Landlord to any holding over by Tenant. The voluntary or other
surrender of this Lease or the Premises by Tenant or a mutual
cancellation of this Lease shall not work as a merger and, at
the option of Landlord, shall either terminate all or any
existing subleases or subtenancies or operate as an assignment
to Landlord of all or any such subleases or subtenancies.




		
	9.	
         ALTERATIONS AND
    ADDITIONS
    




     
A.     Alterations:
Tenant shall not make, or suffer to be made, any alteration or
addition to the Premises, or any part thereof, exceeding Twenty
Five Thousand Dollars ($25,000) in cost, without the written
consent (which shall not be unreasonably withheld, conditioned,
or delayed) of Landlord first had and obtained by Tenant. Any
addition to, or alteration of, the Premises, except moveable
furniture and trade fixtures, shall at once become a part of the
Premises and belong to Landlord. If Landlord consents to the
making of any alteration, addition, or improvement to or of the
Premises by Tenant, the same shall be made at Tenant’s sole
cost and expense. Except as otherwise expressly set forth to the
contrary, any modifications to the Building or Building systems
required by governmental code or otherwise as a result of
Tenant’s alterations, additions or improvements shall be
made at Tenant’s sole cost and expense. Tenant shall retain
title to all moveable furniture and trade fixtures placed in the
Premises. All heating, lighting, electrical, air conditioning,
attached partitioning, drapery, carpeting and floor
installations made by Tenant, together with all property that
has become an integral part of the Premises, shall not be deemed
trade fixtures. Tenant agrees that it will not proceed to make
any


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 alterations or additions the total cost of which
exceeds Twenty Five Thousand Dollars ($25,000), without having
obtained consent from Landlord to do so, and until five (5) days
after written notice to Landlord of Tenant’s intention to
commence such work in order that Landlord may post appropriate
notices to avoid any liability to contractors or material
suppliers for payment for Tenant’s improvements. Tenant
shall at all times permit such notices to be posted and to
remain posted until the completion of work. Tenant shall, if
required by Landlord, secure at Tenant’s own cost and
expense, a completion and lien indemnity bond, reasonably
satisfactory to Landlord for work in excess of $300,000. Tenant
further covenants and agrees that any mechanic’s liens
filed against the Premises or against the Complex for work
claimed to have been done for, or materials claimed to have been
furnished to Tenant, will be discharged by Tenant, by bond or
otherwise, within thirty (30) days after the filing
thereof, at the cost and expense of Tenant. Any exceptions to
the foregoing must be made in writing and executed by both
Landlord and Tenant.




     
B.     Manner of
Alterations: Any alterations or additions made by Tenant to
the Premises, whether or not such work requires Landlord’s
approval hereunder, shall be constructed in a first class
manner. Landlord shall have the right, at its sole cost and
expense, and upon no less than 2 business days’ prior
written notice, to inspect any alterations or additions at any
stage of its completion to determine whether or not such work is
being constructed in compliance with approved plans. At the
completion of each alteration or addition, Tenant shall deliver
a complete set of as-built drawings to Landlord.



     
C.     Cost of
Alterations: Except as otherwise expressly set forth herein
to the contrary, all cost of construction including demolition,
architectural, drawings, permitting fees, etc, shall be paid by
Tenant.



     
D.     Restoration:
At the time any alterations, additions or improvements are
requested by Tenant, which request shall include a detailed
description and depiction of such alterations, additions or
improvements, Tenant may request that Landlord inform Tenant
whether such alterations, additions or improvements must be
removed and the Premises be restored to the original condition
upon Lease expiration or termination. If Landlord fails to inform
Tenant that it must restore the Premises at the Lease expiration, than Tenant shall have no obligation to
restore the Premises at Lease expiration. If Landlord requires
Tenant to so restore, such restoration shall be at Tenant’s
sole cost and expense.



          
1.     Alterations
Performed By Tenant Prior to Execution of This Lease:
Landlord accepts the alterations, additions and improvements
performed to date upon the Premises under the Prior Leases and
Tenant shall not be required to remove such alterations,
additions and improvements as they currently exist. Within
fifteen (15) days of the execution of this Lease, Tenant shall
deliver to Landlord all layout plans in Tenant’s possession
with the understanding that Tenant does not warrant the accuracy
of such plans. Landlord shall have the right, but not the
obligation, to enter the Premises to determine the current
condition of the Premises. Tenant shall cooperate with Landlord
in documenting the current condition of the Premises.



     
E.     Contractors:
Tenant shall have the right to employ architects, general
contractors or subcontractors of its choosing, licensed in
California where required by law, for any alterations desired to
be made to the Premises leased hereunder. Landlord shall not
charge Tenant for any construction management fees, supervision
fees or plan review fees Landlord incurs in connection with any
of the alterations Tenant may make to the Premises.




10.     Intentionally
Deleted.




11.     UTILITIES OF
THE BUILDING IN WHICH THE PREMISES ARE LOCATED:



     
Tenant shall pay promptly, as the same become
due, all charges for separately metered water, gas, electricity,
telephone, telex and other electronic communications service,
sewer service, waste pick-up and any other utilities, materials
or services furnished directly to or used by Tenant on or about
the Premises during the term of this Lease, including, without
limitation, any temporary or permanent utility surcharge or other
exactions whether or not hereinafter imposed. In addition, for any
Premises not
separately metered, Tenant shall pay, as Additional Rent, its
pro rata share of the cost of any utility service not so
separately metered, such pro rata share shall be determined by
dividing the rentable square footage of the portion of the
Premises included in the utility bill by the total rentable
square footage of all rentable space included in such utility
bill, and the pro-rata share not reimbursable by Tenant
hereunder shall not be reimbursable to Landlord under the other
expense reimbursement provisions of this Lease. If, however,
Landlord determines that any tenant (including Tenant) is using
a disproportionate amount of any utility service not separately
metered, then Landlord shall charge that tenant the amount
estimated by Landlord to be the disproportionate amount and such
payment by such other tenant shall not be charged to the other
tenants.



     
Landlord shall not be liable for and Tenant shall
not be entitled to any abatement or reduction of rent


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10







 




by reason of any interruption or failure of
utility services to the Premises when such interruption or
failure is caused by accident, breakage, repair, strikes,
lockouts, or other labor disturbances or labor disputes of any
nature, or by any other cause, similar or dissimilar, beyond the
reasonable control of Landlord. Notwithstanding the foregoing,
Tenant shall be entitled to an abatement of rent for any
interruption or failure of utility services to the Premises when
such interruption or failure is caused by Landlord or its
employees, agents or contractors, which abatement shall be based
on the degree to which Tenant is unable to utilize the Premises
due to such interruption or failure. In addition, in the event
there is any interruption in any utility service, Landlord will
cooperate with Tenant in having such utility service restored as
quickly as possible.




12. TAXES




			
	 	     A.	
    Real Property Taxes.
    




     
As Additional Rent and in accordance with
Paragraph 4E of this Lease, Tenant shall pay to Landlord
Tenant’s Proportionate Share of all Real Property Taxes.
The term “Real Property Taxes”, as used herein, shall
mean (i) all taxes, assessments, levies and other charges
of any kind or nature whatsoever, general and special, foreseen
and unforeseen (including all installments of principal and
interest required to pay any general or special assessments for
public improvements and any increases resulting from
reassessments caused by any change in ownership of the Complex)
now or hereafter imposed during the Term of Lease by any
governmental or quasi-governmental authority or special district
having the direct or indirect power to tax or levy assessments,
which are levied or assessed against, or with respect to the
value, occupancy or use of, all or any portion of the Complex
(as now constructed or as may at any time hereafter, be
constructed, altered, or otherwise changed) or Landlord’s
interest therein; any improvements located within the Complex
(regardless of ownership); the fixtures, equipment and other
property of Landlord, real or personal, that are an integral
part of and located in the Complex; or parking areas, public
utilities, or energy within the Complex; (ii) all charges,
levies or fees imposed by reason of environmental regulation or
other governmental control of the Complex; and (iii) all
costs and fees (including attorney’s fees) incurred by
Landlord in contesting any Real Property Tax and in negotiating
with public authorities as to any Real Property Tax. In the
event said contesting results in a refund or Real Property
Taxes, Tenant shall be credited with the appropriate
Proportionate Share of said refund reflecting Tenant’s
period of occupancy. If at any time during the term of this
Lease the taxation or assessment of the Complex prevailing as of
the Commencement Date of this Lease shall be altered so that in
lieu of or in addition to any Real Property Tax described above
there shall be levied, assessed or imposed (whether by reason of
a change in the method of taxation or assessment, creation of a
new tax or charge, or any other cause) an alternate or
additional tax or charge (i) on the value, use or occupancy
of the Complex or Landlord’s interest therein or
(ii) on or measured by the gross receipts, gross income or
gross rentals from the Complex, on Landlord’s business of
leasing the Complex, or computed in any manner with respect to
the operation of the Complex, then any such tax or charge,
however designated, shall be included within the meaning of the
term “Real Property Taxes” for purposes of this Lease.
If any Real Property Tax is based upon property or rents
unrelated to the Complex, then only that part of such Real
Property Tax that is fairly allocable to the Complex shall be
included within the meaning of the term “Real Property
Taxes”. Notwithstanding the foregoing, the term “Real
Property Taxes” shall not include estate, inheritance, gift
or franchise taxes of Landlord or the federal, state or local
net income tax, capital gains taxes, excess profits, capital
stock taxes or other taxes not uniquely attributable to the
Buildings or the Complex, imposed on Landlord or any of its
shareholders, partners, members, beneficiaries or other owners
of a beneficial interest in Landlord, nor shall it include any
penalties, interest, fines or other similar charges. In
addition, “Real Property Taxes” shall not include any
increases resulting from any new construction, unless such new
construction is by or on behalf of Tenant; development fees and
increased taxes (in lieu of development fees) pursuant to any
development agreement or similar arrangement; any documentary
transfer tax, corporation, limited liability company or other
entity gross receipts tax, sales or use tax; or any portion of
any tax or assessment not properly and equitably allocable to
the period in question (and if Landlord elects to pay any bond
or assessment over less than the longest time permissible by
law, the portion of such payment included in Real Estate Taxes
for any period shall not exceed the amount that would have been
payable for the period had Landlord instead paid over the
longest period permissible by law). In no event shall any
portion of any tax or assessment property allocable to any
period of time beyond the term of this Lease be included in Real
Estate Taxes.




			
	 	     B.	
    Taxes on Tenant’s Property




     
1.     Tenant shall be
liable for and shall pay before delinquency, taxes levied
against any personal property or trade fixtures placed by Tenant
in or about the Premises. If any such taxes on Tenant’s
personal property or trade fixtures are levied against Landlord
or Landlord’s property or if the assessed value of the
Premises is increased by the inclusion therein of a value placed
upon such personal property or trade fixtures of Tenant and if
Landlord, after written notice to Tenant, pays the taxes based
on such increased assessment, which Landlord shall have the
right to do regardless of the validity thereof, but only under
proper protest if requested by Tenant, Tenant shall upon demand,
as the case may be, repay to Landlord the taxes so levied


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11








 




against Landlord, or the proportion of such taxes
resulting from such increase in the assessment; provided that in
any such event Tenant shall have the right, in the name of
Landlord and with Landlord’s full cooperation, to bring
suit in any court of competent jurisdiction to recover the
amount of any such taxes so paid under protest, and any amount
so recovered shall belong to Tenant.



          
2.     If any tenant
improvements in the Premises, whether installed, and/or paid for
by Landlord or Tenant and whether or not affixed to the real
property so as to become a part thereof, are assessed for Real
Property Tax purposes at a valuation higher than the valuation
at which standard office improvements in other space in the
Complex are assessed, then the Real Property Taxes and
assessments levied against Landlord or the Complex by reason of
such excess assessed valuation shall be deemed to be taxes
levied against personal property of Tenant and shall be governed
by the provisions of 12A(i), above. If the records of the County
Assessor are available and sufficiently detailed to serve as a
basis for determining whether said Tenant improvements are
assessed at a higher valuation than standard office improvements
in other space in the Complex, such records shall be binding on
both the Landlord and the Tenant. If the records of the County
Assessor are not available or sufficiently detailed to serve as
a basis for making said determination, the actual cost of
construction shall be used.




13.     TENANT’S
LIABILITY INSURANCE: Tenant, at Tenant’s expense,
agrees to keep in force during the term of this Lease a policy
of commercial general liability insurance with a combined single
limit in the amount of $5,000,000/ 5,000,000 per occurrence/
aggregate. The policy or policies affecting such insurance,
certificates of which shall be furnished to Landlord, shall name
Landlord as additional insured, and shall insure any liability
of Landlord, contingent or otherwise, as respects acts or
omissions of Tenant, its agents, employees or invitees or
otherwise by any negligent conduct of any of said persons in or
about or concerning the Premises; shall be issued by an
insurance company admitted to transact business in the State of
California; and shall provide that the insurance effected
thereby shall not be canceled, except upon thirty (30)
days’ prior written notice to Landlord; and shall have
commercially reasonable deductibles similar to those typically
held by companies of similar size and characteristics of Tenant.
If, during the term of this Lease, in the reasonable opinion of
Landlord’s Lender, insurance advisor or counsel, the amount
of insurance described in this Paragraph is not adequate, Tenant
agrees to increase said coverage to such reasonable amount as
Landlord’s Lender, insurance advisor or counsel shall deem
adequate. All insurance required pursuant to this Paragraph to
be carried by Tenant shall be (i) primary and
noncontributory with any Landlord insurance (ii) shall
provide severability of interests between or among insureds
(iii) shall be issued by insurers licensed to do business
in the State in which the Premises are located, and
(iv) shall be issued by insurers which are rated A:VII or
better by Best’s Key Rating Guide. All insurance required
hereunder may be held by Tenant under blanket policies of
insurance.




14.     TENANT’S
PERSONAL PROPERTY INSURANCE AND WORKER’S COMPENSATION
INSURANCE: Tenant shall maintain a special form property
policy (“Special Form”) with a sprinkler leakage
endorsement insuring the personal property, inventory, trade
fixtures and leasehold improvements within the leased Premises
for the full replacement value thereof. The proceeds from any of
such policies shall be used for the repair or replacement of
such items so insured. Tenant shall also maintain such policy or
policies of worker’s compensation insurance and such other
employee benefit insurance sufficient to comply with all laws.




15.     PROPERTY
INSURANCE: Landlord shall purchase and keep in force and, as
Additional Rent in accordance with Paragraph 4E of this
Lease, and subject to such limitations on reimbursement
obligations as may be provided elsewhere in this Lease, Tenant
shall pay to Landlord Tenant’s Proportionate Share of the
cost of a policy or policies of insurance covering loss or
damage to the Premises and Complex in an amount up to the full
replacement value thereof, providing protection against those
perils included within the classification of “Special
Form” insurance and flood and/ or earthquake insurance, if
available, plus a policy of rental income insurance in the
amount of one hundred (100%) percent of twelve (12) months Base
Rent and Additional Rent, and also a policy of comprehensive
public liability insurance with minimum limits in the amount of
at least $1,000,000/1,000,000 for injuries to or death of
persons occurring in, on or about the Premises or the Complex.
If such insurance cost is increased due to Tenant’s use of
the Premises or the Complex, Tenant agrees to pay to Landlord
the full cost of such increase. Tenant shall have no interest in
nor any right to the proceeds of any insurance procured by
Landlord for the Complex.



     
Landlord and Tenant do each hereby respectively
release the other, to the extent of insurance proceeds actually
received, from any liability for loss or damage caused by fire
or any of the other coverage events included in the releasing
party’s insurance policies, irrespective of the cause of
such fire or casualty; provided, however, that if the insurance
policy of either releasing party prohibits such waiver, then
this waiver shall not take effect until consent to such waiver
is obtained. If such waiver is prohibited, the insured party
affected shall promptly notify the other party hereof.




16.     INDEMNIFICATION:
Landlord shall not be liable to Tenant and Tenant hereby waives
all claims


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against Landlord, and all of Landlord’s
partners, managers, employees, and agents, for any injury to or
death of any person or damage to or destruction of property in
or about the Premises or the Complex by or from any cause
whatsoever, including, without limitation, gas, fire, oil,
electricity or leakage of any character from the roof, walls,
basement or other portion of the Premises or the Complex but
excluding, however, the negligence or willful misconduct of
Landlord or its agents, employees or contractors, and except and
excluding claims resulting from the breach by Landlord of any of
its representations, warranties, covenants or obligations under
this Lease. Except for the extent injury to persons or damage to
property is the result of the negligence or willful misconduct
of Landlord or any of its agents, employees or contractors, and
except and excluding claims resulting from the breach by
Landlord of any of its representations, warranties, covenants or
obligations under this Lease, Tenant shall hold Landlord, and
Landlord’s partners, managers, employees, and agents,
harmless from and defend Landlord, and any of Landlord’s
partners, managers, employees, and agents, against any and all
expenses, including reasonable attorney’s fees, in
connection therewith, arising out of (a) any injury to or
death of any person, or damage to or destruction of property,
occurring in, on or about the Premises, or any part thereof,
from any cause, or by any person or entity, whatsoever,
(b) Tenant’s breach of this Lease, (c) Tenant or
Tenant’s agents, employees, contractors, guests and/or
invitees negligence or intentional wrongdoing,
(d) Tenant’s failure to surrender the Premises in
violation of the terms of this Lease (including damages as a
result of claims made by any succeeding tenant or lost profits
as a result thereof).




17.     COMPLIANCE:
Except as set forth in Paragraph 7A1, Tenant, at its sole
cost and expense, shall promptly comply with all laws, statutes,
ordinances and governmental rules, regulations or requirements
now or hereafter in effect; with the requirements of any board
of fire underwriters or other similar body now or hereafter
constituted; and with any direction or occupancy certificate
issued pursuant to law by any public officer. The judgment of
any court of competent jurisdiction or the admission of Tenant
in any action against Tenant, whether Landlord by a party
thereto or not, that Tenant has violated any such law, statute,
ordinance or governmental rule, regulation, requirement,
direction or provision, shall be conclusive of that fact as
between Landlord and Tenant. Tenant shall, at its sole cost and
expense, comply with any and all requirements pertaining to said
Premises, of any insurance organization or company, necessary
for the maintenance of reasonable fire and public liability
insurance covering the Premises.




18.     LIENS:
Tenant shall keep the Premises and the Complex free from any
liens arising out of any work performed, materials furnished or
obligation incurred by Tenant. In the event that Tenant shall
not, within thirty (30) days following the imposition of
such lien, cause the same to be released of record, Landlord
shall have, in addition to all other remedies provided herein
and by law, and upon no less than 5 business days’
prior written notice to Tenant, the right, but no obligation, to
cause the same to be released by such means as it shall deem
proper, including payment of the claim giving rise to such lien.
All sums paid by Landlord for such purpose, and all expenses
incurred by it in connection therewith, shall be payable to
Landlord by Tenant on demand with interest at the prime rate of
interest as quoted by the Bank of America.




19.     ASSIGNMENT
AND SUBLETTING: The following provisions shall apply to any
assignment, subletting or other transfer by Tenant or any
subtenant or assignee or other successor in interest of the
original Tenant (collectively referred to in this Paragraph as
“Tenant”):



     
A.     Except for
Permitted Assignments as provided below, Tenant shall not do any
of the following (collectively referred to herein as
“Transfer”), whether voluntarily, involuntarily, or by
operation of law, without the prior written consent of Landlord,
which consent shall not be unreasonably withheld or delayed:
(i) assign or otherwise transfer its interest in this Lease
or in the Premises; (ii) sublet all or any part of the
Premises to allow it to be sublet, occupied, or used by any
person or entity other than Tenant; (iii) transfer any
right appurtenant to this Lease or the Premises; or
(iv) mortgage or encumber the Lease (or otherwise use the
Lease as a security device) in any manner. Tenant shall
reimburse Landlord for all reasonable costs and attorney’s
fees incurred by Landlord in connection with the processing
and/or documentation of any requested Transfer, whether or not
Landlord’s consent is granted. Any Transfer so approved by
Landlord shall not be effective until Tenant has paid all such
costs and attorneys’ fees to Landlord and delivered to
Landlord an executed counterpart of the document evidencing the
Transfer which (i) is in form approved by Landlord,
(ii) contains the same terms and conditions as stated in
Tenant’s notice given to Landlord pursuant to
subparagraph B, below, and (iii) with respect to an
assignment, contains the agreement of the proposed Transferee to
assume all obligations of Tenant under this Lease. Any attempted
Transfer without Landlord’s consent shall constitute a
default by Tenant and shall be voidable at Landlord’s
option. Landlord’s consent to any one Transfer shall not
constitute a waiver of the provisions of this Paragraph as to
any subsequent transfer nor consent to any subsequent Transfer.
No Transfer, even with the consent of Landlord, shall relieve
Tenant of its personal and primary obligation to pay the rent
and to perform all of the other obligations to be performed by
Tenant hereunder. The acceptance of rent by Landlord from any
person shall not be deemed to be a waiver by Landlord of any
provision of this Lease nor to be consent to any Transfer.


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B.     Tenant shall give
Landlord at least ten (10) business days prior written
notice of any desired Transfer to a sublessee and at least
thirty (30) days prior written notice of any desired
Transfer to an assignee, and such notice with respect to either
a sublease or an assignment shall contain all of the proposed
terms of such Transfer including but not limited to (i) the
name and legal composition of the proposed Transferee;
(ii) an audited financial statement, if available, or an
un-audited financial statement if an audited statement is not
available, of the Transferee for a period ending not more than
one year prior to the proposed effective date of the Transfer;
(iii) the nature of the proposed Transferee’s business
to be carried on in the Premises; (iv) all consideration to
be given on account of the Transfer; and (v) such other
information as may be reasonably requested by Landlord within
such ten (10) day period. Tenant’s notice shall not be
deemed to have been served or given until such time as Tenant
has provided Landlord with all information required by
subparagraphs (i) through (iv) of this subparagraph.



     
C.     In the event that
Tenant seeks to make any Transfer, Landlord shall have the right
to reasonably withhold its consent to such Transfer, as
permitted pursuant to this Paragraph, or to exercise any of the
rights set forth in this subparagraph, by giving Tenant written
notice of its election within ten (10) business days after
receipt of Tenant’s notice of intent to Transfer to a
sublessee, and within thirty (30) days after receipt of
Tenant’s notice of intent to Transfer to an assignee. In
the event Landlord fails to provide Tenant with notice that it
is withholding its consent to the proposed Transfer within such
ten (10) business day period for a Transfer to a sublessee
or such thirty (30) day period for a Transfer to an
assignee, then Landlord shall be deemed to have rejected the
proposed Transfer. Without otherwise limiting the criteria upon
which Landlord may withhold its consent to any proposed
Transfer, if Landlord withholds its consent where the proposed
assignee’s or subtenant’s anticipated use of the
Premises involves the storage, use or disposal of Hazardous
Material in amounts not typically used in an office environment,
such withholding of consent shall be presumptively reasonable.



          
In addition to Landlord’s right to withhold
its consent to any Transfer and without limiting Landlord in the
exercise of any other right or remedy, which Landlord may have,
Landlord may elect to permit Tenant to so assign the Lease or
sublease such part of the Premises, in which event Tenant may do
so, but without being released of its liability for the
performance of all of its obligations under the Lease. If Tenant
assigns its interest in this Lease in accordance with this
subparagraph, then, after Tenant deducts its reasonable costs of
such assignment, Tenant shall pay to Landlord fifty percent
(50%) of all consideration received by Tenant on account of the
Premises over and above Tenant’s obligations under this
Lease. Tenant shall not, however, be required to pay to Landlord
any consideration it receives for and which is equal to the fair
market value for any furnishings, fixtures or other items of
personal property Tenant receives in connection with the
assignment or subletting, or for any services to be provided by
Tenant in connection with the assignment or subletting
(“Unrelated Consideration”). If Tenant sublets all or
part of the Premises, after Tenant deducts its reasonable costs
of such subleasing, then Tenant shall pay to Landlord fifty
percent (50%) of the positive difference, if any, between
(i) all rent and other consideration (other than Unrelated
Consideration) paid by the subtenant to Tenant on account of the
Premises, less (ii) all rent paid by Tenant to Landlord
pursuant to this Lease which is allocable to the area so sublet.
Such amount shall be paid to Landlord on the same basis, whether
periodic or in lump sum, that such rent and other consideration
(other than Unrelated Consideration) is paid to Tenant by its
subtenant; provided, however, should Tenant, as assignor or
sublessor, be paid a lump sum fee by any assignee or sublessor
which is not designated as prepaid rent and which is not
Unrelated Consideration, Landlord shall be paid fifty percent
(50%) of the positive difference, if any, between (i) such
lump sum fee, less (ii) all rent paid by Tenant to Landlord
pursuant to this Lease for the month in which such lump sum fee
was paid, less (iii) any costs incurred by Tenant in
connection with the assignment or subletting. If any lump sum is
designated as prepaid rent, then Tenant shall pay to Landlord
fifty percent (50%) of the excess of the lump sum amount over
the amount of rent Tenant is required to pay hereunder for the
period over which the prepaid rent relates. Tenant’s
obligations under this subparagraph shall survive any assignment
or sublease, and Tenant’s failure to perform its
obligations under this subparagraph shall be a default under
this Lease. At the time Tenant makes any payment to Landlord
required by this subparagraph, Tenant shall deliver an itemized
statement of the method by which the amount to which Landlord is
entitled was calculated. Landlord shall have the right to
inspect Tenant’s books and records relating to the payments
due pursuant to this subparagraph. Upon request therefore,
Tenant shall deliver to Landlord copies of all bills, invoices,
or other documents upon which its calculations are based.
Landlord may condition its approval of a Transfer upon obtaining
a certification from both Tenant and the proposed Transferee of
all amounts that are to be paid to Tenant in connection with
such Transfer. As used herein, the term
“consideration” shall mean any consideration of any
kind received, or to be received, by Tenant as a result of the
Transfer, if such sums are related to Tenant’s interest in
this Lease or in the Premises.



     
D.     Tenant
irrevocably assigns to Landlord, as security for Tenant’s
obligations under this Lease, all rent or other consideration
not otherwise payable to Landlord by reason of any Transfer.
Landlord, as assignee of Tenant, or a receiver for Tenant
appointed on Landlord’s application, may collect such rent
or other


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14








 




consideration and apply it toward Tenant’s
obligation under this Lease, provided, however, that until
occurrence of any default by Tenant, Tenant shall have the right
to collect such rent or other consideration.



     
E.     Notwithstanding
the foregoing, if immediately after the Transfer, Tenant is not
conducting business from at least 200,000 rentable square feet
of the Total Premises, then Landlord shall have the right, to be
exercised by giving written notice to Tenant (within 20 days of
Landlords’ receipt of the transfer notice referred to in
Paragraph 19B above), to recapture the space which is the
subject of the transfer (“Subject Space”). If such
recapture notice is given, it shall serve to terminate this
Lease only with respect to the Subject Space, or, if the
proposed Subject Space covers all the Premises, it shall serve
to terminate this entire Lease; in either case, as of the
proposed effective date of the transfer or upon Landlord’s
recapture notice, whichever is later. If this Lease is
terminated pursuant to the foregoing provision with respect to
less than the entire Premises, the Rent shall be adjusted on the
basis of the proportion of rentable square feet retained by
Tenant to the rentable square feet demised immediately prior to
the transfer and this Lease as so amended shall continue
thereafter in full force and effect.



     
F.     Notwithstanding
the foregoing, without the prior consent of Landlord, Tenant
shall have the right: (i) to assign this Lease or sublet
the Premises to any affiliate or subsidiary of Tenant which
affiliate or subsidiary is more than fifty percent (50%) owned,
either directly or indirectly, by Tenant; or (ii) to merge
with another corporation or entity so long as substantially all
of the assets of Tenant are transferred and retained by the
surviving corporation or entity excluding, however, any assets
which may be required to be disposed of in order to make the
transaction qualify under applicable antitrust laws, regulations
or regulatory review; or (iii) to enter into an acquisition
of another corporation; or (iv) have substantially all of
its assets acquired by another corporation which other
corporation assumes the obligations of this Lease (each, a
“Permitted Assignment”), in each case provided that
(a) Landlord is promptly provided with notice thereof
following the effective date of such Permitted Assignment,
(b) Tenant remains fully liable for the full performance of
Tenant’s obligations under the Lease to the extent Tenant
survives following such Permitted Assignment, and (c) in
the case of an assignment, the successor assumes in writing all
obligations under this Lease and in the case of a sublease, the
sublessee assumes, in writing, all obligations under this Lease
applicable to the sublease premises. Any assignee or sublessee
under a Permitted Assignment is herein referred to as a
“Permitted Assignee”.




20.     ENTRY BY
LANDLORD:     Landlord reserves,
and shall during normal business hours have, the right, upon no
less than 2 business days’ prior written notice to
Tenant, to enter the Premises to inspect them; to perform any
services to be provided by Landlord hereunder; to submit the
Premises to prospective purchasers, mortgagers or tenants; to
place “For Sale” signs (at any time) or “For
Lease” signs (during the last twelve months of the term, or
during the period of any default); to post notices of
nonresponsibility; and to alter, improve or repair the Premises
and any portion of the Complex, all without abatement of rent;
and may erect scaffolding and other necessary structures in or
through the Premises where reasonably required by the character
of the work to be performed; provided, however, that the
business of Tenant shall be interfered with to the least extent
that is reasonably practical. For each of the foregoing
purposes, Landlord shall at all times have and retain a key with
which to unlock all of the doors in an emergency in order to
obtain entry to the Premises, and any entry to the Premises
obtained by Landlord by any of said means, or otherwise, shall
not under any circumstances be construed or deemed to be a
forcible or unlawful entry into or a detainer of the Premises or
an eviction, actual or constructive, of Tenant from the Premises
or any portion thereof. Notwithstanding the foregoing, Tenant
shall not be required to provide Landlord with keys to unlock
interior office doors, or to unlock interior areas containing
safes, computer servers, or sensitive, proprietary or
confidential information of Tenant. Landlord shall also have the
right at any time to change the arrangement or location of
public parts of the Complex and to change the name, number or
designation by which the Complex is commonly known, and none of
the foregoing shall be deemed an actual or constructive eviction
of Tenant, or shall entitle Tenant to any reduction of rent
hereunder and no such changes shall unreasonably interfere with
Tenant’s use of or access to the Premises leased hereunder.




21. DEFAULT/REMEDIES



     
A.     Default:     The
following events shall constitute a default under this Lease:



          
1.     The commencement
of a bankruptcy action or liquidation action or reorganization
action or insolvency action or an assignment of or by Tenant for
the benefit of creditors, or any similar action undertaken by
Tenant, or the insolvency of Tenant, shall, at Landlord’s
option, constitute a breach of this Lease by Tenant.



          
2.     The failure to
pay any monetary amount due under this Lease within ten
(10) days after written notice to Tenant from Landlord that
such amount is past due. It is expressly agreed that such ten
(10) day notice of Landlord may be in the form of notice
pursuant to California Code of Civil Procedure Section 1161,


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or any successor statute, providing ten (10) days
to cure and if Tenant fails to so cure no further such notice
shall be required of Landlord to commence an unlawful detainer
proceeding.




       
     3.     The
failure to perform or honor any other covenant, condition or
representation made under this Lease, except for the events set
forth above in Paragraphs 21A1 and 21A2 above, shall constitute
a default hereunder by Tenant should Tenant not cure such
failure within ten (10) days from the date of written notice
from Landlord within which to cure. If such cure is not possible
within such ten (10) day period notwithstanding commercially
reasonable efforts by Tenant, Tenant shall not be in default if
Tenant commences to cure within such ten (10) day period and
diligently pursues the cure without delay. It is expressly
agreed that such ten (10) day notice of Landlord may be in the
form of notice pursuant to California Code of Civil Procedure
Section 1161, or any successor statute, providing ten (10)
days to cure and if Tenant fails to so cure no further such
notice shall be required of Landlord to commence an unlawful
detainer proceeding.



     
B.     Remedies:
Upon a default of this Lease by Tenant, Landlord shall have the
following rights and remedies in addition to any other rights or
remedies available to Landlord at law or in equity:



       
     1.     The
rights and remedies provided for by California Civil Code
Section 1951.2, including but not limited to, recovery of 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 rental loss for the same period that Tenant proves
could be reasonably avoided, as computed pursuant to
subsection (b) of said Section 1951.2; and



       
     2.     The
rights and remedies provided by California Civil Code 1951.4
which allows Landlord to continue the Lease in effect and to
enforce all of its rights and remedies under this Lease,
including the right to recover rent as it becomes due, for so
long as Landlord does not terminate Tenant’s right to
possession. Acts of maintenance or preservation, efforts to
relet the Premises, or the appointment of a receiver upon
Landlord’s initiative to protect its interest under this
Lease shall not constitute a termination of Tenant’s right
to possession; and



       
     3.     The
right to terminate this Lease by giving notice to Tenant in
accordance with applicable law; and



       
     4.     The
right and power to enter the Premises and remove therefrom all
persons and property, to store such property in a public
warehouse or elsewhere at the cost of and for the account of
Tenant and to sell such property and apply such proceeds
therefrom pursuant to applicable California law. Landlord may
from time to time sublet the Premises or any part thereof for
such term or terms (which may extend beyond the term of this
Lease) and at such rent and such other terms as Landlord in its
sole discretion may deem advisable, with the right to make
alterations and repairs to the Premises. Upon each subletting,
(i) Tenant shall be immediately liable to pay Landlord, in
addition to indebtedness other than rent due hereunder, the cost
of such subletting, including, but not limited to, reasonable
attorney’s fees, and any real estate commissions actually
paid, and the cost of such alternations and repairs incurred by
Landlord and the amount, if any, by which the rent hereunder for
the period of such subletting (to the extent such period does
not exceed the term hereof) exceeds the amount to be paid as
rent for the Premises for such period or (ii) at the option
of Landlord, rents received from such subletting shall be
applied first to payment of indebtedness other than rent due
hereunder from Tenant to Landlord; second, to the payment of any
costs of such subletting and of such alternations and repairs;
third to payment of rent due and unpaid hereunder; and the
residue, if any, shall be held by Landlord and applied in
payment of future rent as the same becomes due hereunder. If
Tenant has been credited with any rent to be received by such
subletting under option (i) and such rent shall not be
promptly paid to Landlord by the subtenant(s), or if such
rentals received from such subletting under option
(ii) during any month be less than that to be paid during
that month by Tenant hereunder, Tenant shall pay any such
deficiency to Landlord. Such deficiency shall be calculated and
paid monthly. No taking possession of the Premises by Landlord
shall be construed as an election on its part to terminate this
Lease unless a written notice of such intention be given to
Tenant. Notwithstanding any such subletting without termination,
Landlord may at any time hereafter elect to terminate this Lease
for such previous breach; and



       
     5.     The
right to have a receiver appointed for Tenant upon application
by Landlord, to take possession of the Premises and to apply any
rental collected from the Premises and to exercise all other
rights and remedies granted to Landlord pursuant to subparagraph
(4) above; and



       
     6.     The
right to any other amount to compensate Landlord for all the
detriment proximately caused by Tenant’s failure to perform
its obligations under this Lease or which in the ordinary course
would be likely to result therefrom, including without
limitation (i) any costs expenses incurred by Landlord (in
retaking possession of the Premises; (ii) in maintaining,
repairing, preserving, restoring, replacing, cleaning the
Premises;


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or any portion thereof, including such acts for
reletting to a new lessee or lessees; (iii) for leasing
commissions; (iv) any fines, costs, penalties and/or
interest incurred by Landlord as a result of Tenant’s late
payment; or (v) for any other costs necessary or
appropriate to relet the Premises; and




          
7.     The right to all
reasonable attorneys’ fees incurred by Landlord as a result
of Default, and costs in the event suit is filed by Landlord to
enforce such remedy.



     
C.     Cumulative
Remedies: The remedies herein provided are not exclusive and
Landlord shall have any and all other remedies provided herein
or by law or in equity.



     
D.     No
Possession: No act or conduct of Landlord, whether
consisting of the acceptance of the keys to the Premises, or
otherwise, shall be deemed to be or constitute an acceptance of
the surrender of the Premises by Tenant prior to the expiration
of the Term, and such acceptance by Landlord of surrender by
Tenant shall only flow from and must be evidenced by a written
acknowledgment of acceptance of surrender signed by Landlord.
The surrender of this Lease by Tenant, voluntarily or otherwise,
shall not work a merger unless Landlord elects in writing that
such merger take place, but shall operate as an assignment to
Landlord of any and all existing subleases, or Landlord may, as
its option, elect in writing to treat such surrender as a merger
terminating Tenant’s estate under this Lease, and thereupon
Landlord may terminate any or all such subleases by notifying
the sublessee of its election so to do within five (5) days
after such surrender.



     
E.     Cross-Default:     As
a material part of the consideration for the execution of this
Lease by Landlord and Tenant, it is agreed between Landlord and
Tenant, that a default by Tenant or by Landlord under the
Phase 1 Lease (as defined in the Paragraph entitled
“Default” in the Phase 1 Lease) or under this
Lease shall be considered to be a default under the Phase 1
Lease as well as this Lease. In the event of a default by Tenant
or Landlord under the Phase 1 Lease, or this Lease,
Landlord or Tenant may pursue the remedies permitted by law or
pursuant to the terms of the Phase 1 Lease and this Lease,
as if Tenant or Landlord had defaulted under any one or both of
such leases.




22.     [Intentionally
Deleted]




23.     DESTRUCTION:
In the event the Premises are damaged or destroyed in whole or
in part from any cause, or in the event any utility service
servicing the Premises becomes completely inoperable, Landlord
shall, within fifteen (15) business days of the event of
such damage, destruction or cessation of service, notify Tenant
in writing as to the approximate length of time necessary for
Landlord to reconstruct the Premises to substantially its former
condition or to have such utility services restored. If such
estimate exceeds one hundred eighty (180) days from the
date of damage, destruction or cessation of service, either
party shall have the option, within thirty (30) days of
Landlord’s notice, to terminate this Lease as to only the
Building as to which the damage or cessation has occurred or,
if, as a result of such damage, destruction or cessation of
service, Tenant is only able to occupy four (4) Buildings
under both this Lease and the Phase 1 Lease, then in that
event, Tenant may terminate this Lease in its entirety as well
as the Phase 1 Lease in it’s entirety. In addition, if
the reconstruction of the Premises or restoration of the utility
service exceeds Landlord’s estimate, as set forth in
Landlord’s notice, Tenant shall, once it becomes clear that
such estimate will be exceeded until such time as the
reconstruction or restoration is complete, have the right to
terminate this Lease as to the Building as to which the damage
or cessation has occurred or, if, as a result of such damage,
destruction or cessation of service, Tenant is only able to
occupy four (4) Buildings under both this Lease and the
Phase 1 Lease, Tenant may terminate this Lease in its
entirety as well as the Phase 1 Lease in it’s
entirety. If such a termination occurs, the obligations under
this Lease shall be equitably revised based on the square
footage of the Premises terminated in relation to the total
square footage of the Premises prior to termination. If neither
party elects to terminate, or if neither party is entitled to
terminate under this Paragraph, Landlord shall promptly, at its
sole expense, rebuild or restore the Premises or the utilities
to substantially the condition existing prior to the date of
damage, destruction or cessation of service. Tenant shall be
entitled to a reduction in rent while such repair is being made
in the proportion that the area of the Premises is rendered
unusable bears to the total square footage of the Premises.
Notwithstanding anything herein to the contrary, Landlord’s
obligation to rebuild or restore shall be limited to the
building, interior improvements and utilities as they existed as
of the Commencement Date of the Lease, but shall not include
(a) restoration of Tenant’s trade fixtures, equipment,
merchandise or any improvements, alterations or additions made
by Tenant to the Premises, or (b) any damage caused by the
act or breach of this Lease by Tenant, which damage Tenant shall
forthwith replace or fully repair at Tenant’s sole cost and
expense. Unless a termination occurs pursuant to the foregoing
provisions, this Lease shall remain in full force and effect as
to the entirety of the Premises. Tenant hereby expressly waives
the provisions of section 1932, Subdivision 2, and
section 1933, Subdivision 4 of the California Civil
Code.



     
Notwithstanding anything to the contrary set
forth above, in the event the damage or destruction of the
Premises (i) occurs during the last two years of the term
(unless any applicable extension option has been


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exercised) and (ii) has rendered at least
50% of the Premises unusable by Tenant, Landlord shall have the
option during the aforementioned fifteen (15) business day
period to elect not to rebuild the Premises by so notifying
Tenant, in which case Tenant may elect to terminate this Lease
and/or the Phase 1 Lease by so notifying Landlord.



     
Notwithstanding the foregoing, in the event
Landlord elects not to rebuild or restore the Premises or any
Building constituting a portion of the Premises, and notifies
Tenant that Landlord desires to terminate the Lease as to that
Building, Tenant may, by providing written notice to Landlord
within 30 days of the date it receives notice of
Landlord’s intent to terminate, elect to rebuild one or
more of the Buildings which were so damaged. In the event Tenant
makes the election set forth herein, then this Lease shall
continue in full force and effect, and any insurance proceeds
for the damage being repaired by tenant shall be assigned to and
paid over to Tenant to the extent Tenant pays the same for such
restoration. Tenant shall then immediately commence, at its sole
cost and expense, restoring such Buildings to the condition they
were in prior to the date of such destruction.




24.     EMINENT
DOMAIN:     If all or any part of
the Premises shall be taken by any public or quasi-public
authority under the power of eminent domain or conveyance in
lieu thereof, this Lease shall terminate as to any portion of
the Premises so taken or conveyed on the date when title vests
in the condemnor, and Landlord shall be entitled to any and all
payment, income, rent, award or any interest therein whatsoever
which may be paid or made in connection with such taking or
conveyance, and Tenant shall have no claim against Landlord or
otherwise for the value of any unexpired term of this Lease.
Notwithstanding the foregoing Paragraph, any compensation
specifically awarded Tenant for Tenant’s personal property,
relocation costs, business damage or business interruption,
specifically excluding, however, the so called “bonus
value” of this Lease, shall be and remain the property of
Tenant (it being specifically acknowledged that Tenant shall not
be entitled to any so called “bonus value” of the
Lease).



     
In the event of a partial taking or conveyance of
the Premises, if the portion of the Premises taken or conveyed
is so substantial that the Tenant can no longer reasonably
conduct its business from the remaining Premises, Tenant shall
have the privilege of terminating this Lease. In addition, if
the portion of the Premises which is taken that is contained in
any Building renders that portion of the Premises unusable to
Tenant, Tenant may terminate this Lease only as to the Building
as to which the taking has occurred. Any termination hereunder
must occur within sixty (60) days from the date of such taking
or conveyance, upon written notice to Landlord of its intention
so to do, and upon giving of such notice this Lease shall
terminate on the last day of the calendar month next following
the month in which such notice is given or upon the effective
date of the taking, at Tenant’s election, upon payment by
Tenant of the rent through the date of termination.



     
If a portion of the Premises be taken by
condemnation or conveyance in lieu thereof and neither Landlord
nor Tenant shall terminate this Lease as provided herein, this
Lease shall continue in full force and effect as to the part of
the Premises not so taken or conveyed, and the rent herein shall
be apportioned as of the date of such taking or conveyance so
that thereafter the rent to be paid by Tenant shall be in the
ratio that the area of the portion of the Premises not so taken
or conveyed bears to the total area of the Premises prior to
such taking.




25.     SALE OR
CONVEYANCE BY LANDLORD: In the event of a sale or conveyance
of the Complex or any interest therein by Landlord, Landlord
shall thereby be released from any liability relating to events
occurring after the date of such sale or conveyance, and from
any terms, covenants or conditions (express or implied) to be
performed after the date of such sale or conveyance in favor of
Tenant, and in such event, with respect to such items, Tenant
agrees to look solely to the successor in interest of such
transferor in and to the Complex and this Lease. This Lease
shall not be affected by any such sale or conveyance, and Tenant
agrees to attorn to the successor in interest of such transferor.




26.     SUBORDINATION;
ATTORNMENT; NON-DISTURBANCE.



     
A.     Subordination.
Subject to the provisions of subparagraph (C), below, this
Lease shall be subject and subordinate to any ground lease,
mortgage, deed of trust, or other hypothecation or mortgage
(collectively, “Mortgage”) now or hereafter placed by
Landlord upon the real property of which the Premises are a
part, to any and all advances made on the security thereof, and
to all renewals, modifications, consolidations, replacements,
and extensions thereof. Tenant agrees that any person holding
any Mortgage shall have no duty, liability, or obligation to
perform any of the obligations of Landlord under this Lease. In
the event of Landlord’s default with respect to any such
obligation, Tenant will give any Lender, whose name and address
have previously been furnished in writing to Tenant, notice of a
default by Landlord; provided, however, that Tenant shall not be
liable to any Lender for failure to provide the notice provided
for herein. Tenant may not exercise any remedies for default by
Landlord unless and until Landlord and the Lender shall have
received written notice of such default and 30 days shall
thereafter have elapsed without the default


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having been cured. If any Lender shall elect to
have this Lease superior to the lien of its Mortgage and shall
give written notice thereof to Tenant, this Lease shall be
deemed prior to such Mortgage.



    
B.    Attornment.
Subject to the nondisturbance provisions of subparagraph C
of this Paragraph, Tenant agrees to attorn to a Lender or any
other party who acquires ownership of the Premises by reason of
a foreclosure of a Mortgage. In the event of such foreclosure,
such new owner shall not: (i) be liable for any act or
omission of any prior landlord or with respect to events
occurring prior to acquisition of ownership, (ii) be
subject to any offsets or defenses which Tenant might have
against any prior Landlord, or (iii) be liable for security
deposits, unless same has been transferred to the acquiring
party, or be bound by prepayment of more than one month’s
rent. Landlord represents and warrants that, as of the date
hereof, there are no Mortgages encumbering the Complex.



    
C.    Non-Disturbance.
Landlord represents that there are no existing Mortgage
encumbering any portion of the Complex. With respect to a
Mortgage entered into by Landlord after the execution of this
Lease, Tenant’s subordination of this Lease shall be
subject to receiving assurance (a “nondisturbance
agreement”) from the Mortgage holder in a commercially
standard form that Tenant’s possession and this Lease will
not be disturbed so long as Tenant is not in default and attorns
to the record owner of the Premises, and the subordination
provided for under subparagraph (A), above, is expressly
conditioned upon Tenant receiving a nondisturbance agreement.



    
D.    Self-Executing.
The agreements contained in this Paragraph shall be effective
without the execution of any further documents; provided,
however, that upon written request from Landlord or a Lender in
connection with a sale, financing, or refinancing of Premises,
Tenant and Landlord shall execute such further writings as may
be reasonably required to separately document any such
subordination or nonsubordination, attornment, and/or
nondisturbance agreement, as is provided for herein.




27.    HOLDING OVER:
Tenant has no right to retain possession of the Premises or any
part thereof beyond the expiration or earlier termination of
this Lease. If Tenant holds over with the consent of Landlord:
(a) the Base Rent payable shall be increased to 150% of the
Base Rent applicable during the month immediately preceding such
expiration or earlier termination; (b) Tenant’s right
to possession shall be on a month to month basis, terminable on
30 days notice from either party; and (c) all other terms
and conditions of this Lease shall continue to apply. Nothing
contained herein shall be construed as a consent by Landlord to
any holding over by Tenant.




28.    ESTOPPEL
CERTIFICATE:



    
A.    Tenant shall at any
time upon not less than thirty (30) days’ prior written
notice from Landlord execute, acknowledge and deliver to
Landlord a statement in writing (a) certifying that this
Lease is unmodified and in full force and effect (or, if
modified, stating the nature of such modification and certifying
that this Lease, as so modified, is in full force and effect)
and the date to which the rent and other charges are paid in
advance, if any, (b) acknowledging that there are not, to
Tenant’s knowledge, any uncured defaults on the part of
Landlord hereunder, or specifying such defaults, if any, are
claimed, and (c) setting forth such other matters as
Landlord may reasonably request. Any such statement may be
conclusively relied upon by any prospective purchaser or
encumbrancer of the Premises. Tenant’s failure to deliver
such statement within such time shall be conclusive upon Tenant
that this Lease is in full force and effect, without
modifications except as may be represented by Landlord; that
there are no uncured defaults in Landlord’s performance,
that not more than one month’s rent has been paid in
advance, and that any other matters set forth in Landlord’s
request are true and correct.



    
B.    Landlord shall at any
time upon not less than thirty (30) days’ prior written
notice from Tenant, execute, acknowledge and deliver to Tenant a
statement in writing (a) certifying that this Lease is
unmodified and in full force and effect (or, if modified,
stating the nature of such modification and certifying that this
Lease, as so modified, is in full force and effect) and the date
to which the rent and other charges are paid in advance, if any,
(b) acknowledging that there are not, to Landlord’s
knowledge, any uncured defaults on the part of Tenant hereunder,
or specifying such defaults, if any, are claimed, and
(c) setting forth such other matters as Tenant may
reasonably request. Any such statement may be conclusively
relied upon by any prospective transferees of the Lease or
subtenants of the Premises, or by any prospective purchaser of
Tenant or of substantially all of the assets of Tenant.




29.     CONSTRUCTION
CHANGES: Landlord does not guarantee the accuracy of any
drawings supplied to Tenant and verification of the accuracy of
such drawings rests with Tenant.




30.     RIGHT TO
PERFORM:


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A.     All terms,
covenants and conditions of this Lease to be performed or
observed by Tenant shall be performed or observed by Tenant at
Tenant’s sole cost and expense and without any reduction of
rent. If Tenant shall fail to pay any sum of money, or other
rent, required to be paid by it hereunder or shall fail to
commence to perform any other term or covenant hereunder on its
part to be performed after expiration of all applicable notice
and cure periods, Landlord, without waiving or releasing Tenant
from any obligation of Tenant hereunder, may, but shall not be
obligated to, make any such payment or perform any such other
term or covenant on Tenant’s part to be performed. All
reasonable sums so paid by Landlord and all reasonably necessary
costs of such performance by Landlord together with interest
thereon at the rate of the prime rate of interest per annum as
quoted by the Bank of America from the date of such payment of
performance by Landlord, shall be paid (and Tenant covenants to
make such payment) to Landlord on demand by Landlord, and
Landlord shall have (in addition to any other right or remedy of
Landlord) the same rights and remedies in the event of
non-payment by Tenant as in the case of failure by Tenant in the
payment of rent hereunder.



     
B.     All terms,
covenants and conditions of this Lease to be performed or
observed by Landlord shall be performed or observed by Landlord
at Landlord’s sole cost and expense (subject to
reimbursement rights as specified elsewhere in this Lease). If
Landlord shall fail to commence to perform any term or covenant
hereunder on its part to be performed after expiration of all
applicable notice and cure periods, Tenant, without waiving or
releasing Landlord from any obligation of Landlord hereunder,
may, but shall not be obligated to, perform any such other term
or covenant on Landlord’s part to be performed. All
reasonable sums so paid by Tenant and all reasonably necessary
costs of such performance by Tenant together with interest
thereon at the rate of the prime rate of interest per annum as
quoted by the Bank of America from the date of such payment of
performance by Tenant, shall be paid (and Landlord covenants to
make such payment) to Tenant on demand by Tenant.



 


		
	31.	
    ATTORNEYS’ FEES:



     
A.     In the event that
Landlord should bring suit for the possession of the Premises,
for the recovery of any sum due under this Lease, or because of
the breach of any provision of this Lease, or for any other
relief against Tenant hereunder, or in the event that Tenant
should bring suit against Landlord for the recovery of any sums
due hereunder or because of the breach of any provision of this
Lease or for any other relief against Landlord hereunder, then
all costs and expenses, including reasonable attorney’s
fees, incurred by the prevailing party therein shall be paid by
the other party, which obligation on the part of the other party
shall be deemed to have accrued on the date of the commencement
of such action.




32.     WAIVER:     The
waiver by either party of the other party’s failure to
perform or observe any term, covenant or condition herein
contained to be performed or observed by such waiving party
shall not be deemed to be a waiver of such term, covenant or
condition or of any subsequent failure of the party failing to
perform or observe the same or any other such term, covenant or
condition therein contained, and no custom or practice which may
develop between the parties hereto during the term hereof shall
be deemed a waiver of, or in any way affect, the right of either
party to insist upon performance and observance by the other
party in strict accordance with the terms hereof.




33.     NOTICES:     Except
as provided in any applicable unlawful detainer statutes, in
which case Landlord may either elect that this notice provision
shall not apply, or to serve such notices solely in accordance
with this provision in which case the unlawful detainer statutes
notice provision shall not apply; all notices, demands,
requests, advices or designations which may be or are required
to be given by either party to the other hereunder shall be in
writing. All notices, demands, requests, advices or designations
by Landlord to Tenant shall be sufficiently given, made or
delivered if personally served, or if sent by United States
certified or registered mail, postage prepaid, or by recognized
overnight delivery service (such as Federal Express or United
Parcel Service), addressed to Tenant as set forth below, or to
such other address as Tenant may direct by written notice to
Landlord. All notices, demands, requests, advices or
designations by Tenant to Landlord shall be sufficiently given,
made or delivered if personally served, or if sent by United
States certified or registered mail, postage prepaid, or by
recognized overnight delivery service (such as Federal Express
or United Parcel Service) addressed to Landlord at its offices
at 3201 Ash Street, Palo Alto, CA 94306 with a copy to
Landlord’s property manager, Willis and Company,
1793 Lafayette Street, Suite 220, Santa
Clara, 95050 or to such other addresses as Landlord may
direct by written notice to Tenant. Each notice, request, demand
advice or designation referred to in this Paragraph shall be
deemed received: (i) on the date served if personally
served; (ii) three (3) business days after mailing if
mailed by United States Postal Service in the manner herein
provided; or (iii) one (1) business days after
sending, if sent via recognized overnight delivery service.
Tenant’s address for notices shall be as follows:



          
2632 Marine Way


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    Mountain View, CA 94043 

     Attention: Director, Corporate Services
    
	 
	 	
    and, with respect to all legal notices, a copy to
    
	 
	 	
    2632 Marine Way 

     Mountain View, CA 94043 

     Attention: General Counsel
    





34.     EXAMINATION
OF LEASE:     Submission of this
instrument for examination or signature by Tenant does not
constitute a reservation of or option for a lease, and this
instrument is not effective as a lease or otherwise until its
execution and delivery by both Landlord and Tenant. Landlord and
Tenant mutually intend that neither shall have any binding
contractual obligations to the other with respect to the matters
referred to herein unless and until this instrument has been
fully executed by both parties.




35.     DEFAULT BY
LANDLORD:     Landlord shall not be
in default unless Landlord fails to perform obligations required
of Landlord within thirty (30) days after written notice by
Tenant to Landlord (and to the holder of any mortgage or deed of
trust covering the Premises whose name and address shall have
heretofore been furnished to Tenant in writing), specifying
wherein Landlord has failed to perform such obligations;
provided, however, that if the nature of Landlord’s
obligations is such than more than thirty (30) days are
required for performance, then Landlord shall not be in default
if Landlord commences performance within such thirty
(30) day period and thereafter diligently prosecutes the
same to completion. Notwithstanding the foregoing, Landlord and
Tenant agree that under certain “emergency
circumstances”, Tenant shall have the right to perform
obligations otherwise required of Landlord without the necessity
of providing Landlord (and any Mortgagee) with any notice or
opportunity to cure. Under such emergency circumstances, Tenant
shall use its good faith reasonable judgment in determining a
shorter notice period for response by Landlord or determining
that the matter at hand must be resolved immediately such that
notice can only be given after the fact. For the purposes
hereof, “emergency circumstances” shall mean:
(i) any hazardous situation that poses a threat of damage,
destruction or injury to any person or property of a material
nature or otherwise threatens the safety of employees and/or
visitors to the Premises; or (ii) any other circumstance
that involves a substantial interference with the operations of
Tenant’s business enterprise in the Premises, including,
without limitation, the launching of new software products or
revisions thereto (especially to correct existing problems which
must be addressed immediately) to enable customers to perform
needed financial and tax-related functions, which is of special
concern during the months preceding April 15th of each
calendar year.




36.     CORPORATE
AUTHORITY:     If Tenant is a
corporation, a partnership, a limited liability company, or any
other form of entity, each individual executing this Lease on
behalf of said entity represents and warrants that he is duly
authorized to execute and deliver this Lease on behalf of said
entity in accordance with the organizational documents of said
entity and that this Lease is binding upon said entity.




37.     Intentionally
Deleted.




38.     LIMITATION OF
LIABILITY:     In consideration of
the benefits accruing hereunder, Tenant and all successors and
assigns covenant and agree that, in the event of any actual or
alleged failure, breach or default hereunder by Landlord:



     
A.     The sole and
exclusive remedy shall be against Landlord and Landlord’s
assets;



     
B.     No partner of
Landlord shall be sued or named as a party in any suit or action
(except as may be necessary to secure jurisdiction of the
partnership)



     
C.     No service of
process shall be made against any partner of Landlord (except as
may be necessary to secure jurisdiction of the partnership)



     
D.     No partner of
Landlord shall be required to answer or otherwise plead to any
service of process;



     
E.     No judgment shall
be taken against any partner of Landlord;



     
F.     Any judgment
taken against any partner of Landlord may be vacated and set
aside at any time without hearing;



     
G.     No writ of
execution will ever be levied against the assets of any partner
of Landlord;


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21








 



     
H.     These covenants
and agreements are enforceable both by Landlord and also by any
partner of Landlord.



     
I.     The term,
“Landlord”, as used in this Paragraph, shall mean only
the owner or owners from time to time of the fee title or the
tenant’s interest under a ground lease of the land
described in Exhibit “B”.




39.     BROKERS:
Tenant warrants that it had dealing with only The Staubach
Company, which represents Tenant, in connection with the
negotiation of this Lease. Tenant knows of no other real estate
broker or agent who is entitled to a commission in connection
with this Lease. Landlord shall pay The Staubach Company a
brokerage commission, pursuant to a separate written commission
agreement between Landlord and The Staubach Company in
connection with this Lease.




40.     SIGNS: No
sign, placard, picture, advertisement, name or notice shall be
inscribed, displayed, printed or affixed on or to any part of
the outside of the Premises or any exterior windows of the
Premises without the written consent of Landlord first had and
obtained, which consent shall not be unreasonably withheld,
conditioned or delayed, and Landlord shall have the right to
remove any such sign, placard, picture, advertisement, name or
notice without notice to and at the expense of Tenant. If Tenant
is allowed to print or affix or in any way place a sign in, on,
or about the Premises, then upon expiration or other sooner
termination of this Lease, Tenant at Tenant’s sole cost and
expense, shall both remove such sign and repair all damage in
such manner as to restore all aspects of the appearance of the
Premises to the condition prior to the placement of said sign.
Subject to the prior written consent of Landlord, which consent
shall not be unreasonably withheld, conditioned or delayed,
Tenant may, at its sole cost and expense, install a monument
sign located at the main driveway entrance to the Complex;
install suitable Building signage adjacent to the Premises; and
install suitable directional signage in the Common Areas.



     
All approved signs or lettering on outside doors
shall be printed, painted, affixed or inscribed at the expense
of Tenant by a person approved of by Landlord.



     
All of Tenant’s existing signage for which
Landlord previously approved may remain.



     
All signage must comply with all applicable laws.




41.     FINANCIAL
STATEMENTS: If Tenant tenders to Landlord any information in
connection with this Lease on the financial stability, credit
worthiness or ability of the Tenant to pay the rent due and
owing under the Lease, then Landlord shall be entitled to rely
upon the information provided in determining whether or not to
enter into this Lease Agreement with Tenant and Tenant hereby
represents and warrants to Landlord the following: (a) that
all documents provided by Tenant to Landlord are true and
correct copies of the original; and (b) Tenant has not
withheld any information from Landlord which is material to
Tenant’s credit worthiness, financial condition or ability
to pay the rent; and (c) all written information supplied
by Tenant to Landlord in connection with this Lease is true,
correct and accurate in all material respects; and (d) no
part of the information supplied by Tenant to Landlord contains
misleading or fraudulent statements as to any material matter in
every material aspect. Nothing contained herein, however, shall
require Tenant to render any financial information to Landlord
unless otherwise specifically provided.




42.     HAZARDOUS
MATERIALS: 



     
A.     As used herein,
the term “Hazardous Material” shall mean any substance
or material which has been determined by any state, federal or
local governmental authority to be capable of posing a risk of
injury to health, safety or property including all of those
materials and substances designated or defined as
“hazardous” or “toxic” by (i) the
Environmental Protection Agency, the California Water Quality
Control Board, the Department of Labor, the California
Department of Industrial Relations, the Department of
Transportation, the Department of Agriculture, the Consumer
Product Safety Commission, the Department of Health and Human
Services, the Food and Drug Agency or any other governmental
agency now or hereafter authorized to regulate materials and
substances in the environment, or by (ii) the Comprehensive
Environmental Response, Compensation and Liability Act of 1980,
42 U.S.C. 9601 et seq., as amended; the Hazardous Materials
Transportation Act, U.S.C. 1801, et seq., as amended; the
Resource Conservation and Recovery Act, 42 U.S.C. 6901, et seq.,
as amended; the Hazardous Waste Control Law, California Health
& Safety Code 25100 et seq., as amended; Sections 66680
through 66685 of Title 22 of the California Administration Code,
Division 4, Chapter 30, as amended; and in the regulations
adopted and publications promulgated pursuant to said laws.



     
B.     Landlord
represents to the best of its knowledge, without any
investigation, nor the duty to investigate, that there are no
Hazardous Materials on the Premises which are in violation of
applicable laws. On a strictly confidential basis, Owner will
deliver copies to Intuit of any reports concerning the Hazardous
Materials


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22








 




condition of the Premises currently in its
possession or that Landlord receives in the future. Intuit shall
not deliver such documents nor disclose the contents thereof to
any third party absent Owner’s written consent.



     
C.     Tenant shall not
cause any Hazardous Material to be improperly or illegally used,
stored, discharged, released or disposed of in, from, under or
about the Premises or the Complex, or any other land or
improvements in the vicinity of the Premises or the Complex.
Without limiting the generality of the foregoing, Tenant, at its
sole cost, shall comply with all laws relating to Hazardous
Materials that it uses at the Premises. If Tenant or
Tenant’s guests, invitees, contractors or agents use,
storage, discharge, release or disposition of Hazardous
Materials on the Premises results in contamination of the
Premises or the Complex or any soil in or about the Premises or
the Complex, Tenant, at its sole expense shall promptly take all
actions necessary to remediate the Premises or the Complex, or
any soil in or about the Premises or the Complex, of any such
Hazardous Materials which are present as a result of Tenant or
Tenant’s guests, invitees, contractors or agents use,
storage, discharge, release or disposition to the full extent
required by law. The termination of this Lease shall not
terminate or reduce the liability or obligations of Tenant under
this Paragraph, or as may be required by law, to clean up,
monitor or remove any Hazardous Materials from the Premises or
the Complex.



     
Tenant shall defend, hold harmless and indemnify
Landlord and its agents and employees with respect to all
claims, damages and liabilities arising out of or in connection
with Tenant’s use, storage, discharge, release or
disposition of Hazardous Materials in, from, under or about the
Premises or the Complex during the Lease term and whether or not
Tenant had knowledge of such Hazardous Material, including,
without limitation, any cost of monitoring or removal, any
reduction in the fair market value or fair rental value of the
Premises or the Complex and any loss, claim or demand by any
third person or entity relating to bodily injury or damage to
real or personal property.



     
Tenant shall not suffer any lien to be recorded
against the Premises or the Complex as a consequence of a
Hazardous Material, including any so called state, federal or
local “super fund” lien related to the
“clean up” of a Hazardous Material in or about
the Premises, where said Hazardous Material is or was caused by
Tenant or Tenant’s guests, invitees, contractors or agents.



     
D.     In the event
Hazardous Materials are discovered in or about the Premises or
the Complex, and Landlord has substantial reason to believe that
Tenant was responsible for the presence of the Hazardous
Material, then Landlord shall have the right to appoint a
consultant, at Landlord’s expense, to conduct an
investigation to determine whether Hazardous Materials are
located in or about the Premises or the Complex and to determine
the corrective measures, if any, required to remove such
Hazardous Materials. If Landlord can show that Tenant was
responsible for the presence of specific Hazardous Materials in,
on or about the Premises or the Complex, then Tenant, at its
expense, shall take such action to remediate such Hazardous
Materials for which it was responsible from the Premises and the
Complex to the full extent required by law, and shall reimburse
Landlord for the cost of its consultant. To the extent Landlord
cannot show that Tenant was responsible for the presence of
specific Hazardous Materials, then Landlord shall be responsible
for any costs incurred under the terms of this Paragraph, and
shall reimburse Tenant for any costs incurred by Tenant in
responding to Landlord’s investigation.



     
Tenant shall immediately notify Landlord of any
inquiry, test, investigation or enforcement proceeding by or
against Tenant or the Premises or the Complex concerning a
Hazardous Material. Tenant acknowledges that Landlord, as the
owner of the Property, at its election, shall have the sole
right, to negotiate, defend, approve and appeal any action taken
or order issued with regard to a Hazardous Material by an
applicable governmental authority. Provided Tenant is not in
default under the terms of this Lease, Tenant shall likewise
have the right to participate in any negotiations, approvals or
appeals of any actions taken or orders issued with regard to the
Hazardous Material and Landlord shall not have the right to bind
Tenant in said actions or orders.



     
E.     Tenant shall
surrender the Premises to Landlord, upon the expiration or
earlier termination of the Lease, free of Hazardous Materials
the presence of which were caused by Tenant or Tenant’s
guests, invitees, contractors or agents. If Tenant fails to so
surrender the Premises, Tenant shall indemnify and hold Landlord
harmless from all damages resulting from Tenant’s failure
to surrender the Premises as required by this Paragraph,
including, without limitation, damages occasioned by the
inability to relet the Premises or a reduction in the fair
market and/or rental value of the Premises or the Complex by
reason of the existence of any Hazardous Materials, which are or
were caused by Tenant, in or around the Premises or the Complex.
Tenant’s indemnity of Landlord as described in this
Paragraph 42 shall survive the termination of this Lease.



     
F.     Prior to
executing this Lease, Tenant shall provide to Landlord a
complete list of all chemicals, toxic waste or Hazardous
Materials employed by Tenant within the Premises and the amounts
of such employment. Throughout the terms of the Lease, Tenant
shall continue to update this list of chemicals, contaminants
and Hazardous Materials and the amounts employed by Tenant, its
employees, agents or


Charleston Intuit Lease

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23








 




contractors prior to Tenant’s use or storage
of any materials that requires such list to be updated.
Notwithstanding the foregoing, the provisions of this
subparagraph shall not apply to Hazardous Materials normally
used in an office environment.



     
G.     Landlord shall be
responsible for all costs incurred in connection with the
investigation, remediation, monitoring and removal of any
Hazardous Materials present in, on or about the Premises or the
Complex, or the soil, subsoil or water beneath the Premises or
the Complex, which was caused by Landlord or Landlord’s
agents. Landlord shall indemnify and hold Tenant and each Tenant
Indemnitee harmless from and against any and all claims,
liabilities, causes of action, damages, remediation costs,
monitoring costs, clean-up costs, and other costs and expenses
(including, without limitation, attorneys’ fees) incurred
by Tenant and/or any Tenant Indemnitee as a result of any
Hazardous Material being present in, on or about the Premises or
the Complex, or the soil, subsoil or water beneath the Complex,
to the extent such was caused by Landlord or Landlord’s
agents. Landlord’s indemnity of Tenant as described in this
Paragraph 42 shall survive the termination of this Lease.



     
H.     Tenant shall not
be liable for nor otherwise obligated to Landlord under any
provision of this Lease with respect to any claim, cost, expense
or damage resulting from any Hazardous Material present upon the
Premises or the Complex to the extent not caused by Tenant or
Tenant’s guests, invitees, contractors, agents or
employees; provided, however, Tenant shall be fully liable for
and otherwise obligated to Landlord under the provisions of this
Lease for all liabilities, costs, damages, penalties, claims,
judgments, expenses (including, without limitation,
attorneys’ and experts’ fees and costs) and losses to
the extent Tenant or Tenant’s guests, invitees,
contractors, agents or employees contributes to the presence of
such Hazardous Materials or Tenant or Tenant’s guests,
invitees, contractors, agents or employees exacerbates the
conditions caused by such Hazardous Materials.



     
I.     Except for any
Hazardous Materials required to be monitored, remediated or
removed by Tenant under and pursuant to this Lease, Landlord
agrees that, if and only to the extent required by any
governmental entity having jurisdiction over the Complex in a
final non-appealable order issued against Tenant, it shall
monitor, remediate or remove, or cause to be monitored,
remediated or removed: (i) any Hazardous Materials which
existed on the Complex as of the effective date of this Lease
that were not caused by Tenant or Tenant’s guests,
invitees, contractors or agents, and (ii) any Hazardous
Materials introduced to the Complex after the effective date of
this Lease that were not caused by Tenant or Tenant’s
guests, invitees, contractors or agents.




43.     MISCELLANEOUS
AND GENERAL PROVISIONS



     
A.     [Intentionally
Deleted]



     
B.     This Lease shall
in all respects be governed by and construed in accordance with
the laws of the State of California. If any provision of this
Lease shall be invalid, unenforceable or ineffective for any
reason whatsoever, all other provisions hereof shall be and
remain in full force and effect.



     
C.     The term
“Premises” includes the space leased hereby and any
improvements now or hereafter installed therein or attached
thereto. The term “Landlord” or any pronoun used in
place thereof includes the plural as well as the singular and
the successors and assigns of Landlord. The term
“Tenant” or any pronoun used in place thereof includes
the plural as well as the singular and its successors and
assigns, according to the context hereof, and the provisions of
this Lease shall inure to the benefit of and bind such
successors and assigns.



     
D.     The term
“person” includes the plural as well as the singular
and individuals, firms, associations, partnerships and
corporations. Words used in any gender include other genders. If
there be more than one Tenant the obligations of Tenant
hereunder are joint and several. The paragraph headings of this
Lease are for convenience of reference only and shall have no
effect upon the construction or interpretation of any provision
hereof.



     
E.     Time is of the
essence of this Lease and of each and all of its provisions.



     
F.     At the expiration
or earlier termination of this Lease, Tenant shall execute,
acknowledge and deliver to Landlord, within thirty
(30) days after written demand from Landlord to Tenant, any
quitclaim deed or other document required by any title company
licensed to operate in the State of California, to remove the
cloud or encumbrance created by this Lease from the real
property of which Tenant’s Premises are a part.



     
G.     This instrument
along with any exhibits and attachments hereto constitutes the
entire agreement between Landlord and Tenant relative to the
Premises and this agreement and the exhibits and attachments may
be altered, amended or revoked only by an instrument in writing
signed by both Landlord and Tenant. Landlord


Charleston Intuit Lease

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24








 




and Tenant hereby agree that all prior or
contemporaneous oral agreements between and among themselves and
the agents or representatives relative to the leasing of the
Premises are merged in or revoked by this agreement.



     
H.     Tenant shall not
record this Lease or a short form memorandum hereof without the
consent of Landlord.



     
I.     Tenant further
agrees to execute any amendments required by a lender to enable
Landlord to obtain financing, so long as Tenant’s rights
hereunder are not materially and adversely affected.



     
J.     Clauses, plats
and riders, if any, signed by Landlord and Tenant and endorsed
on or affixed to this Lease are a part hereof.



     
K.     Tenant covenants
and agrees that no diminution or shutting off of light, air or
view by any structure which may be hereafter erected (whether or
not by Landlord) shall in any way affect this Lease, entitle
Tenant to any reduction of rent hereunder or result in any
liability of Landlord to Tenant.



     
L.     Landlord
covenants with Tenant that upon Tenant paying the rent and all
other charges required under this Lease and performing all of
Tenant’s covenants and agreements contained herein, Tenant
shall peacefully have, hold and enjoy the Premises, subject to
all of the terms and conditions of this Lease.



     
M.     No remedy or
election hereunder shall be deemed exclusive but shall, wherever
possible, be cumulative with all other remedies in law or in
equity.



     
N.     Tenant
acknowledges that the rental payable to Landlord hereunder does
not include the cost of guard service or other security
measures. Landlord has no obligations to provide same. Tenant
assumes all responsibility for the protection of the Premises,
Tenant, its agents, invitees and their property from the acts of
third parties.



     
O.     Landlord reserves
the right to grant easements that Landlord deems necessary and
to cause the recordation of parcel maps, so long as such
easements and maps do not unreasonably or materially interfere
with the use of the Premises by Tenant. Tenant agrees to sign
any documents reasonably requested by Landlord to effectuate any
such easements or maps.




44.     Expansion
Option:


     
A.     Option: Tenant
is hereby granted an expansion option, as set forth below, on
approximately 29,155 rentable square feet located at 2593 Coast
Avenue, Mountain View, California, known by Landlord as
Building F and hatch marked on Exhibit D
attached hereto and hereinafter referred to as “Building
F — 2593 Coast Expansion Building”. As of the
date of this Lease, the Building F — 2593 Coast
Expansion Building is divided into three (3) separate spaces.
The first space, which is on the ground floor, is comprised of
approximately 13,666 rentable square feet and is leased to
Optonics, Inc. (“Optonics Space”). The second space,
which is on the second floor, is comprised of approximately
12,866 rentable square feet and has been commonly referred to as
the “Ironhide Space”. The third space, which is on the
second floor, is comprised of approximately 2,623 square feet
(the “Residual Space,” with the Ironhide Space and the
Residual Space being collectively referred to as the
“Second Floor Space”).



     
The rentable square footage of
Building F — 2593 Coast shall be deemed to equal
29,155, the rentable square footage of the Optonics Space shall
be deemed to equal 13,666, the rentable square footage of the
Ironhide Space shall be deemed to equal 12,866 and the rentable
square footage of the Residual Space shall be deemed to equal
2,623.



     
If exercised, the lease for the Optonics Space
and/or the Second Floor Space shall commence on the dates
hereafter provided, and Landlord shall deliver such space to
Tenant vacant, in broom clean condition and free of any tenancy
or occupants. Such lease and Tenant’s option rights under
this paragraph are subject to the Optonics’ lease and
Optonic’s option to extend such lease for the Optonics
Space. Optonics’ lease expires September 14, 2005, and
Optonics has a three (3) year renewal option to be
exercised not later than May 31, 2005.



     
Landlord shall not enter into leases for any
space in the Building F — 2593 Coast Expansion
Building that extends beyond August 31, 2006 (subject to
Optonics option to extend) unless Tenant does not exercise
it’s option under this Paragraph 44.


Charleston Intuit Lease

Phase 2-Buildings A-F

August 4, 2003-Final



25








 



     
The option to expand must be exercised by
Tenant’s providing written notice of such exercise
(”Option Notice”) in accordance with the following:



          
1.     Exercise With
Respect to Building F Space to Be Available On
September 1, 2006: Even though the Optonics lease
expires September 14, 2005, Tenant shall have until and
must provided the Option Notice, if at all, for all available
space in Building F-2593 Coast (that is both the Second Floor
Space and, if Optonics does not exercise its option to extend,
the Optonics Space), such that it is received by Landlord by
December 1, 2005. In the event of such exercise, the lease
for such space shall commence on the later of September 1,
2006, or the date such space is delivered by Landlord to Tenant,
vacant, broom clean and free of any tenancy or occupants.
Notwithstanding the foregoing, in the event all of the space
specified in the Option Notice is not delivered by Landlord to
Tenant by December 1, 2006, Tenant may, at any time
thereafter until delivery is tendered by Landlord as required
under this paragraph, withdraw its Option Notice until all of
the space is delivered by Landlord as required hereunder by
delivering written notice of withdrawal to Landlord, in which
event the Option Notice shall be null, void and of no force and
effect, as if never given.



          
2.     Exercise With
Respect to Optonics Space if Optonics Exercises It’s Option
To Extend: In the event that Optonics exercises its option
to extend it’s lease beyond September 14, 2005, Tenant
must provide the Option Notice, if at all, for such space, such
that it is received by Landlord by December 15, 2007. In
the event of such exercise, the lease for the Optonics Space
shall commence on the later of September 15, 2008, or the
date such premises are delivered by Landlord to Tenant, vacant,
broom clean and free of any tenancy or occupants.
Notwithstanding the foregoing, in the event the Optonics Space
is not delivered by Landlord to Tenant by December 15,
2008, Tenant may, at any time thereafter until delivery is
tendered by Landlord as required under this paragraph, withdraw
its Option Notice as to the Optonics Space by delivering written
notice of withdrawal to Landlord, in which event the Option
Notice for the Optonics Space shall be null, void and of no
force and effect, as if never given.



          
3.     Exercise With
Respect to Optonics Space if Optonics Exercises It’s Option
To Extend But Such Lease Terminates Prior to Tenant’s
Option Notice Deadline: Notwithstanding subparagraph (2),
above, in the event that Optonics exercises it’s option to
extend it’s lease until September 14, 2008, but such
lease terminates, for any reason, prior to December 15,
2007, Tenant must provide the Option Notice for the Optonics
Space, if at all, such that it is received by Landlord on the
later of fifteen (15) days following written notice from
Landlord to Tenant that the Optonics lease has or will terminate
early, or December 1, 2005. In the event Tenant provides an
Option Notice for the Optonics Space as provided herein, the
lease for the Optonics Space shall commence on the later of:
(i) (3) three months following Tenant’s Option
Notice for the Optonics Space; (ii) September 1, 2006;
(iii) the effective date of termination of the Optonics
lease; or (iv) the date the Optonics Space is delivered by
Landlord to Tenant, vacant, broom clean and free of any tenancy
or occupants. Notwithstanding the foregoing, in the event the
Optonics Space is not delivered by Landlord to Tenant by the
date which is 90 days following the latest of the dates
specified in subparagraphs 44(A)(3)(i) through (iii) hereof,
Tenant may, at any time thereafter until delivery of the
Optonics Space is tendered by Landlord as required under this
paragraph, withdraw its Option Notice as to the Optonics Space
by delivering written notice of withdrawal to Landlord, in which
event the Option Notice for the Optonics Space shall be null,
void and of no force and effect, as if never given.



          
4.     Notice by
Landlord; No Further Extensions: Should Tenant deliver a
written notice requesting information concerning whether or not
Optonics exercised its right to extend its lease, Landlord shall
respond to Tenant in writing within ten (10) days after it
receives such Tenant notice. If Optonics exercises its option to
extend its lease after the delivery of Landlord’s
aforementioned written response, Landlord shall not have any
obligation to so inform Tenant unless Tenant has delivered an
additional notice inquiring into same, in which event Landlord
shall respond in writing within ten (10) days after it
receives such second Tenant notice. Landlord agrees that it
shall not, without the prior written consent of Tenant:
(i) grant any other extensions of the Optonics lease by
Optonics which materially alters Tenant’s rights under this
Lease; (ii) modify the terms of the Optonics lease
extension rights which materially alters Tenant’s rights
under this Lease; or (iii) waive strict compliance with the
extension provisions contained in the Optonics lease. Further,
in the event Tenant exercises any option to expand with respect
to the Optonics Space, Landlord shall, upon the expiration of
the Optonics lease, take all commercially reasonable efforts to
ensure that the Optonics Space is vacated by Optonics as soon as
possible after the expiration of the Optonics lease including,
without limitation, the filing of any legal actions necessary or
appropriate to commence eviction proceedings, and the
prosecution of any such action until Optonics has been evicted
from the Optonics Space.



     
B.     Termination of
Option: If Tenant does not exercise it’s right to take
all available space in the Building F-2593 Coast Expansion
Building, at the first opportunity it has the right to do so,
the right to take any further space in the Building F-2593
Coast Expansion Building (which has not previously been the
subject of an Option Notice) terminates and Tenant shall not
have the option to expand into further space in the
Building F-


Charleston Intuit Lease

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August 4, 2003-Final



26








 




2593 Coast Expansion Building.



     
C.     Exercise of
Option: Tenant’s Option Notice must be in writing and
be received by Landlord prior to the deadlines set forth above.



     
D.     Terms of Lease
for Expansion Space: In the event Tenant exercises any
option set forth in this Paragraph 44, any space subject to
any Option Notice shall be considered a part of the Premises
described in this Lease, effective as of the commencement date
for such space as defined elsewhere in this Paragraph 44,
and the rights and obligations of Landlord and Tenant with
respect to such space subject to any Option Notice shall be
governed by the terms of this Lease, provided, however,
(i) the Base Rent shall be increased by an amount equal to
the rentable square feet contained in the expansion space
specified in the Option Notice times the Base Rent per square
foot being charged for the Premises immediately prior to the
effective date of the expansion (and thereafter, such Base Rent
shall be subject to annual increases of three percent (3%) as
set forth in Paragraph 4A of this Lease [it being
understood that the rent schedule in Paragraph 4A shows
Base Rent increases on an annual basis which were calculated at
an increase of 3% each year so, after the addition of the
Expansion Space, if such occurs, such 3% increases shall be
adjusted to include the rentable square feet of any portion of
the Expansion Space for which Tenant properly exercised its
rights hereunder, as part of the Premises]), and, effective as
of the commencement date of Tenant acquiring the expansion
space, Tenant’s Proportionate Share shall be recomputed by
adding the rentable square footage contained in the expansion
space which is the subject of the Option Notice to the rentable
square footage of the Premises immediately prior to the addition
of the expansion space, and dividing such sum by the total
rentable square footage in the Complex and (ii) Tenant
shall receive the following rent concessions: (a) Tenant
shall not be required to pay any Base Rent or Additional Rent on
such expansion space from the date delivery of such expansion
space is delivered by Landlord as required under this paragraph
until the earlier of four (4) months after the date of such
delivery, or the date Tenant commences conducting its business
operations on the additional space, and (b) an equivalent
amount of additional free Base Rent and Additional Rent of
Fifteen and 00/100 Dollars ($15.00) per square foot of the
additional space being added, which shall be off-set against
Base Rent and Additional Rent attributable to the expansion
space becoming due immediately after the expiration of the rent
abatement period specified under subparagraph 44(D)(ii)(a)
hereof. The rent abatement shall be subject to the terms and
condition of Paragraph 4B of this Lease with the dates and
amounts being interpreted to be the dates and amounts set forth
in this Paragraph 44D.



     
E.     Execution of
Lease Amendment. If Tenant properly delivers any Option
Notice, the parties shall promptly execute an amendment to this
Lease confirming the addition of the additional space and
setting forth the commencement date for such additional space
specified in the Option Notice, the new rent amounts, the new
Proportionate Share, the rent abatement period, and any other
relevant applicable terms as specified in this
Paragraph 44. Landlord shall prepare such amendment and
Tenant shall promptly execute the same upon Landlord’s
request. Regardless as to when such amendment is executed, the
additional space shall be added hereunder and the terms hereof
shall be deemed appropriately amended effective as of the date
Landlord delivers the applicable space specified in the Option
Notice to Tenant as required under this Paragraph 44.



     
F.     Exterior Code
and Exterior ADA Compliance: Prior to the delivery of any
space specified in any Option Notice by Landlord to Tenant,
Landlord will investigate the Building F — 2593
Coast Expansion Building to determine its exterior code and
exterior ADA compliance and will make such repairs,
modifications and upgrades, at its sole cost and expense, as are
necessary to bring the exteriors into compliance with such
applicable laws. It is acknowledged that Landlord shall only be
required to make such repairs, modifications and upgrades that
are actually required to prevent the
Building F — 2593 Coast Expansion Building from
being in violation of such codes at such time, as opposed to
making repairs to bring the Building F — 2593
Coast Expansion Building up to current building codes even
though existing improvements do not require current repairs
because such improvements are “grandfathered”. Any
amounts expended by Landlord hereunder shall not be recoverable
as an Additional Rent item by Landlord.




45.     Lease of
Building A 2600 Casey: That certain space of
approximately 38,527 rentable square feet located at 2600 Casey
Avenue, Mountain View, California, and known by Landlord as
Building A and hatch marked on Exhibit E
and hereinafter referred to as
“Building A — 2600 Casey
Avenue” (the rentable square footage of
Building A-2600 Coast shall be deemed to equal 38,527)
shall be added to the Premises hereunder effective as of the
later of August 1, 2005, or the date Landlord delivers
Building A — 2600 Casey Avenue to Tenant vacant,
broom clean and free of any tenancy or occupants, or such
earlier date as set forth below (“Building A
Commencement Date”) subject to the following:



     
A.     Landlord’s
Right To Attempt To Lease Building A — 2600
Casey: Prior to the Building A Commencement Date,
Landlord shall have the right to attempt to lease
Building A — 2600 Casey to a third party. Should
Landlord be prepared to enter into a letter of intent to lease
all or a portion of Building A — 2600


Charleston Intuit Lease

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27








 




Casey, upon terms that are acceptable to Landlord
(“Third Party Letter of Intent”), Landlord shall
deliver a written notice of the same to Tenant who shall then
have ten (10) business days from the date of such notice to
notify Landlord, in writing, of its election, in its sole
discretion, to either (a) accelerate the Building A
Commencement Date to the later of (i) February 1, 2005
or (ii) the commencement date set forth in the Third Party
Letter of Intent, or (b) elect not to lease
Building A — 2600 Casey. Anything herein to the
contrary notwithstanding, Landlord may lease
Building A — 2600 Casey to the current tenant,
Sun Microsystems, but only for a term through not later than
July 31, 2005, and any such occupancy by Sun Microsystems
shall not trigger a decision by Tenant as hereinabove set forth.



     
B.     Terms of Lease
for Building A — 2600 Casey: The leasing of
Building A — 2600 Casey shall be governed by the
terms of this Lease, provided, however, (i) the Base Rent
shall be increased by an amount equal to 38,527 times the Base
Rent per square foot being paid by Tenant for the Premises as of
the Building A Commencement Date, and Tenant’s
Proportionate Share shall be increased by adding 38,527 to the
rentable square footage in the Premises immediately prior to the
Building A Commencement Date, and dividing such sum by the
rentable square footage in the Complex; and (ii) Tenant
shall not be required to pay any Base Rent or Additional Rent on
Building A — 2600 Casey from the date delivery of
Building A — 2600 Casey is delivered by Landlord
to Tenant as required under this paragraph until the earlier of
four (4) months after the date of such delivery, or the date
Intuit commences conducting its business operations on
Building A — 2600 Casey. The rent abatement shall
be subject to the terms and condition of Paragraph 4B of
this Lease with the dates and amounts being interpreted to be
the dates and amounts set forth in this Paragraph 45B.



     
C.     Execution of
Lease Amendment: As soon as the Building A Commencement
Date is known, the parties shall promptly execute an amendment
to this Lease confirming the addition of
Building A — 2600 Casey and setting forth the
commencement date for such additional space, the new rent
amounts, the new Proportionate Share, the rent abatement period,
and any other relevant applicable terms as specified in this
Paragraph 45. Landlord shall prepare such amendment and
Tenant shall promptly execute the same upon Landlord’s
request. Regardless as to when such amendment is executed, the
Building A — 2600 Casey additional space shall be
added hereunder and the terms hereof shall be deemed
appropriately amended effective as of the Building A
Commencement Date.



     
D.     Exterior Code
and Exterior ADA Compliance: Prior to the Building A
Commencement Date, and prior to Landlord’s delivery of
Building A — 2600 Casey to Tenant, Landlord will
investigate Building A — 2600 Casey to determine
its exterior code and exterior ADA compliance and will make such
repairs, modifications and upgrades, at its sole cost and
expense, as are necessary to bring the exteriors into compliance
with such applicable laws. It is acknowledged that Landlord
shall only be required to make such repairs, modifications and
upgrades that are actually required to prevent of
Building A — 2600 Casey from being in violation
of such codes at such time, as opposed to making repairs to
bring of Building A — 2600 Casey up to current
building codes even though existing improvements do not require
current repairs because such improvements are
“grandfathered”. Any amounts expended by Landlord
hereunder shall not be recoverable as an Additional Rent item by
Landlord.



     
E.     Failure to
Timely Deliver: In the event Landlord fails to deliver
Building A — 2600 Casey to Tenant on or before
the earlier of: (i) November 1, 2005, or (ii) the
date which is ninety (90) days after later of the dates
specified in subparagraphs 45(A)(a)(i) and 45(A)(a)(ii),
above, then, until Landlord delivers Building A —
2600 Casey to Tenant as required under this Paragraph 45,
Tenant shall have the right to elect, by written notice given to
Landlord, not lease Building A — 2600 Casey.




[Remainder of Page Intentionally Left
Blank]

Charleston Intuit Lease

Phase 2-Buildings A-F

August 4, 2003-Final



28








 




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




LANDLORD:



CHARLESTON PROPERTIES





A California General Partnership





		
	By: 	
    [Illegible Sig.]
    











Title: General Partner





Date: 4 Aug 03





TENANT:




INTUIT, INC





a Delaware Corporation





		
	By: 	
    /s/ Robert B. Henske
    











Title: Sr. VP, Chief Financial Officer





		
	By: 	
    /s/ Janelle Wolf
    











Title: Assistant Secretary





Date: August 4, 2003





[Signature Page — Lease Agreement
(Phase 2 – Buildings A-F)]


Charleston Intuit Lease

Phase 2-Buildings A-F

August 4, 2003-Final







 




Exhibit A



Depiction of Leased Premises




[Hatch Marked]



Charleston Intuit Lease

Phase 2-Buildings A-F

August 4, 2003-Final







 


EXHIBIT A










 




Exhibit B



Depiction of Complex




[Hatch Marked]



Charleston Intuit Lease

Phase 2-Buildings A-F

August 4, 2003-Final









 


EXHIBIT B











 




Exhibit C



Covenant, Condition and Restrictions



Charleston Intuit Lease

Phase 2-Buildings A-F

August 4, 2003-Final










 




DECLARATION BY LESSEE OF ESTABLISHMENT
OF



EASEMENTS, COVENANTS, CONDITIONS AND
RESTRICTIONS



     
THIS DECLARATION is made as of the first (1st)
day of March, 1982, by CHARLESTON PROPERTIES, a California
General Partnership (“Charleston”), as LESSEE of those
certain three (3) parcels (Parcel II, Parcel III, and
Parcel IV), leased from Juana Salado, as Trustee of the
Salado Living Trust, as LESSOR, located in Mountain View,
California, and being described in Exhibit “A” hereto,
which exhibit by this reference being made a part hereof.




     I.     DECLARATION.


     
Charleston does hereby declare that it has
established and does establish mutual ingress and egress
easements for the foregoing parcels which are for the mutual
benefit of such parcels and of any portion thereof, and shall
run with the respective interest of all “Parties” in
such parcels, as the term “Parties” is hereinbelow
defined, and shall inure to and pass with such parcels and shall
apply to and bind the respective successors in interest thereof,
and all and each thereof is imposed upon such parcels and any
portion thereof.




     II.     DEFINITIONS.


     
(a) Party. The term “Party”
shall mean Charleston and any successor in interest thereto
which acquires Charleston’s leasehold interest in or to any
parcel, except that such a successor shall not become a Party:




EXHIBIT C







 



          
1.     While and so long
as the transferring party retains the entire possessory interest
in the parcel or portion thereof so conveyed by the terms of a
deed of trust or mortgage, in which event the party owning such
possessory interest shall have the status of Party.



          
2.     If the transfer
or conveyance is followed immediately by a subleaseback of the
same parcel or portion thereof to such party, or an affiliate
thereof, in which event only the sublessee thereof after the
subleaseback shall have the status of Party so long as the
sublease in question has not expired or been terminated.



          
3.     If the transfer
or conveyance is by way of sublease from Charleston or its
successor Party to a tenant occupying space in a building
located on Parcel II, Parcel III, or Parcel IV.



     
Upon any transfer or conveyance, which transfer
or conveyance would create a new Party, pursuant to the
provisions hereof, then the powers, rights and interests herein
conferred upon such new Party with respect to the parcel so
conveyed, shall be deemed assigned, transferred or conveyed to
such transferee or grantee, and the obligations herein conferred
upon such new Party shall be deemed assumed by such transferee
or grantee with respect to the parcel so acquired.



     
(b)     Beneficial
Users. All owners, lessees and occupants of land lying within
the parcels and all customers and other business invitees of
such owners, lessees and occupants shall be referred to as
“Beneficial Users”.



     
(c)     Common Ingress
and Egress. The Common Ingress and Egress provided for hereunder
shall be non-exclusive and only over the roadways crosshatched
in red on Exhibit “B”, attached hereto and by
this reference made a part hereof.



-2-








 



     
III.     GRANT OF
EASEMENTS.



          
(a) Charleston declares the existence of and
grants to all subsequent Parties, for their respective use, and
for the use of all Beneficial Users in common with all others
entitled to use the same (subject to the provisions of
Paragraph VI and XV hereof) non-exclusive easements for
Common Ingress and Egress of the three parcels for vehicular and
pedestrian ingress to and egress from each such parcel over the
driveways crosshatched in red on said
Exhibit “B”, attached hereto.



     
IV.     USE AND
MAINTENANCE OF THE COMMON INGRESS AND EGRESS.



          
(a) All Beneficial Users shall have the
nonexclusive right to use the Common Ingress and Egress
easements subject to any rules and regulations which may be
adopted for the use thereof by all Parties hereto subject to the
provisions of Paragraphs VI and XV, hereof. Such rules and
regulations, if so adopted, shall apply equally and without
discrimination to all Beneficial Users of all such parcels. If
unauthorized use is being made of any of the Common Ingress and
Egress, any Party may restrain or terminate such unauthorized
use by appropriate proceedings.



          
(b) The use of the Common Ingress and Egress
shall be restricted to vehicular and pedestrian traffic and no
solicitation of any kind shall be permitted.



          
(c) Each Party shall operate and maintain,
or cause to be operated and maintained, the improved Common
Ingress and Egress on its respective parcel in good order,
condition and repair. Without limiting the generality of the
foregoing, each Party, in the maintenance of the developed
Common Ingress and Egress on its parcel, shall observe the
following standards:



               
1.     Maintain the
surface of the roadways and driveways smooth and evenly covered
with the type of surfacing material as shall be in all respects
of first-class quality, appearance and durability.



-3-








 



               
2.     Maintain the
landscaping and planting areas in the roadways and driveways in
a first-class type manner.



               
3.     Remove all
papers, debris, filth and refuse and wash or thoroughly sweep.



               
4.     Repaint striping,
markers, and directional signs as necessary to maintain in
first-class condition.



          
(d)     Each Party shall
indemnify and hold harmless each other Party from and against
all claims and all costs, expenses and liability (including
reasonable attorneys’ fees) incurred in connection with all
claims, including any action or proceedings brought thereon,
arising from or as a result of the death of or any accident,
injury, loss or damage whatsoever caused to any person or to the
property of any person as shall occur in or about the Common
Ingress and Egress for which each such Party is responsible for
the maintenance. The indemnity herein provided for shall not
extend to any negligent act or omission of any other Party or of
the respective agents, servants, employees, licensees, or
concessionaires of any thereof.




     V.     EXCUSE
FOR NON-PERFORMANCE.


     
A Party shall be excused from performing any
obligation or undertaking provided in this Declaration, except
any obligation to pay any sums of money under the applicable
provisions hereof (except where otherwise herein provided), in
the event and so long as the performance of any such obligation
is prevented or delayed, retarded or hindered by Act of God,
fire, earthquake, floods, explosion, actions of the elements,
war, invasion, insurrection, riot, mob violence, sabotage,
inability to procure or general shortage of labor, equipment
facilities, materials, or supplies in the open market, failure
of transportation, strikes, lockouts, action of labor unions,



-4-








 




condemnation, requisition, laws, orders or
failure to act of governmental or civil or military or naval
authorities, or any other cause, whether similar or dissimilar
to the foregoing, not within the reasonable respective control
of such Party.




     VI.     DURATION


     
Each easement, covenant, restriction, and
undertaking of this Declaration shall terminate upon the earlier
to occur of (a) September 20, 2053, or (b) the
time when (i) no ground lease shall be in effect with
respect to any such parcel and (ii) the owner of the fee
interest in all parcels shall be the same party or (c) when
the loans to First Interstate Bank affecting the properties set
forth in Exhibit “A” have been paid off.




     VII.     ATTORNEYS’
FEES.


     
In the event that at any time during the term of
this Declaration any Party or Paries shall institute any action
or proceeding against the other or others relating to the
provisions of this Declaration or any default hereunder, the
unsuccessful Party or Parties in such action or proceedings
agree to reimburse the successful Party or Parties therein for
the reasonable attorneys’ fees and disbursement incurred
therein by the successful Party or Parties.




     VIII.     PAYMENT
ON DEFAULT.


     
If pursuant to this Declaration any Party is
compelled or elects to pay any sum of money or do any act or
acts which require the payment of money by reason of any other
Party’s failure or inability to perform any of the terms
and provisions in this Declaration to be performed by such other
Party, the defaulting Party shall promptly, upon demand,
reimburse the paying Party for such sums, and all such sums
shall bear interest at the rate of the prime rate of interest
quoted by the Wells Fargo Bank per annum from the date




– 5 –








 




of expenditure until the date of such
reimbursement. Any other sums payable by any Party to any other
pursuant to the provisions of this Declaration that shall not be
paid when due, shall bear interest at the rate of the prime rate
of interest quoted by the Wells Fargo Bank per annum from the
due date to the date of payment thereof. If such repayment shall
not be made within ten (10) days after such demand is made, the
Party having so paid shall have the right to deduct the amount
thereof, together with interest as aforesaid, without liability
or forfeiture, from any sums then due or thereafter becoming due
from it to the defaulting Party hereunder.



     
Any deduction made by any Party pursuant to the
provisions hereinabove from any sums due or payable by it
hereunder shall not constitute a default in the payment thereof
unless such Party fails to pay the amount of such deduction to
the Party to whom the sum is owing within thirty (30) days after
final adjudication that such amount is owning. The option given
in this section is for the sole protection of the Party so
paying and its existence shall not release the defaulting Party
from the obligation to perform the term, provisions, covenants,
and conditions herein provided to be performed thereby or
deprive the Party so paying of any legal rights which it may
have by reason of any such default.



  
IX.     SEVERABILITY.



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



-6-








 




     X.     GOVERNING
LAWS.


     
This Declaration shall be construed in accordance
with the laws of the State of California.




     XI.     CAPTIONS.


     
The captions of the sections of this Declaration
are for convenience only and shall not be considered nor
referred to in resolving questions of interpretation or
construction.




     XII.     TIME
OF ESSENCE.


     
Time is of the essence with respect to the
performance of each of the covenants and agreements contained in
this Declaration.




     XIII.     NOT
A PUBLIC DEDICATION.


     
Nothing herein contained shall be deemed to be a
gift or dedication of any portion of any parcel to the general
public or for the general public or for any public purpose
whatsoever, it being intended that this Declaration shall be
strictly limited to and for the time period and the purposes
herein expressed.




     XIV.     BREACH
SHALL NOT PERMIT TERMINATION.


     
Except as expressly provided herein, no breach of
this Declaration shall entitle any Party to cancel or rescind or
otherwise terminate this Declaration, but such limitation shall
not affect in any manner any other right or remedies which a
Party may have hereunder by reason of any breach of this
Declaration.




     XV.     MODIFICATION
PROVISIONS.


     
Notwithstanding anything herein to the contrary,
this Declaration may be modified in any respect whatsoever or
rescinded in whole or in part, by written instrument duly
executed and acknowledged by all of the Parties.



-7-








 




     XVI.     NOTICES.


     
Any notice, demand, request, consent, approval,
designation or other communication with any Party is required or
desires to give or make or communicate to any other Party shall
be in writing and shall be given or made or communicated by
United States registered or certified mail, addressed in the
case of Charleston to:




		
	 	
    Charleston Properties
    
	 	
    755 Page Mill Road, Suite A-200
    
	 	
    Palo Alto, California 94304
    





subject to the right of any Party to designate a
new address by notice similarly given. Any notice, demand,
request, consent, approval, designation, or other communication
so sent shall be deemed to have been given, made, or
communicated, as the case may be, on the date the same was
deposited in the United States mail as registered or certified
matter, with postage thereon fully paid.



     
IN WITNESS WHEREOF, Charleston has executed this
instrument.




		
	 	
    CHARLESTON PROPERTIES
    
	 	
    a California General Partnership
    





			
	 	By 	
    /s/ (SIG ILLEGIBLE)
    



		
	 	
    






			
	 	By 	
    /s/ (SIG ILLEGIBLE)
    



		
	 	
    





- 8 -








 




 ORIGINAL





8702954





J615 PAGE 1535





FILED FOR RECORD AT REQUEST OF





Charleston Properties





FEB 27 3:15 PM ’86




OFFICIAL RECORDS




SANTA CLARA COUNTY





LAURIE KANE





RECORDER





Recording requested by and




upon recording, return to:





Charleston Properties





755 Page Mill Road, Suite A200





Palo Alto, CA 94304





	 	 	 
	
    
    REC FEE
    

    	 	
    8
    
	
    
    RMF
    

    	 	
    6
    
	
    
    MICRO
    

    	 	
    1
    
	
    
    LIEN NOT
    

    	 	 
	
    
    SMPF
    

    	 	 
	
    
    POGR
    

    	 	 





DECLARATION ESTABLISHING RESTRICTIVE
COVENANT


     
THIS DECLARATION is made on the date hereafter
set forth by Juana Salado, as Trustee of the Salado Living Trust
dated June 7, 1976, Manuel A. Salado, Jr., Clarence A.
Salado, Walter A. Salado, Richard M. Salado, and Harold A.
Salado, each jointly hereinafter referred to as
“Declarants”.



     
WHEREAS, the Declarants are the owners of that
certain real property located in the City of Mountain View,
County of Santa Clara, State of California, more particularly
described on Exhibit A, attached hereto and incorporated
herein by reference, (the Property); and



     
WHEREAS, by Application Number 184-85-PM,
Charleston Properties, Ground Lessee of Declarants, has applied
to the City of Mountain View (the City) for approval of a parcel
map dividing the Property into three resulting parcels
(Parcel 1, Parcel 2, and Parcel 3), a copy of the
parcel map is attached hereto as Exhibit B; and



     
WHEREAS, the City of Mountain View has
conditionally approved said application for parcel map; and



     
WHEREAS, a condition of said approval requires
that Declarants record a Deed Restriction acceptable to the City
which may not be modified without the City’s consent and to
which the City agrees to be bound as set forth below, declaring
that the combined total area of the Property shall be used to
determine the allowable combined square footage ratio for all
buildings to be constructed on Parcels 1, 2, and 3; and








 



     
WHEREAS, it is the express purpose of Declarants
to satisfy said condition, by the execution, acknowledgement,
and recordation of this Declaration creating the restrictive
covenant referred to herein, which said act Declarants would not
do, but for the requirement of the City to be bound by the terms
of the restrictive covenant;



     
NOW, THEREFORE, Declarants hereby declare that
they have established and do hereby establish and adopt the
restrictive covenant contained herein upon the Property and the
Property and each portion thereof shall be held, used, leased,
encumbered, sold, and conveyed, subject to this Declaration and
the restrictive covenant contained herein. This Declaration
shall run with the Property and shall be binding upon all
parties having or acquiring any right, title, or interest in the
Property or any portion thereof and their respective
successors-in-interest, as follows:



     
1.     Restrictive
Covenant. As a result of the subdivision resulting from
the recording of the parcel map which configures the three
resulting lots as set forth on Exhibit B, the combined
total area of Parcels 1, 2, and 3 of 20.432 acres
shall be used to determine the allowable combined square footage
ratio for all buildings built on the Property. Based on a floor
area ratio of 13,000 square feet of floor area per acre, the
combined total floor area on these parcels shall not exceed
265,616 square feet. In the event any building located on the
Property is partially or totally destroyed, the buildings may be
rebuilt, up to the square footages set forth above. If, in the
future, a greater density of square footage is allowed to built
on the Property, the owners of the Property shall be entitled to
build additional square footage of buildings on each Parcel in
accordance with the ratios established.



     
2.     Covenant Shall
Run With the Land. The restrictive covenant contained
in paragraph 1 shall be binding upon the owners of the
Property and their successors and assigns, mortgagees, lessees,
invitees, and all other person acquiring the Property, or any
portion thereof, or any interest therein, whether by operation
of law or in any other manner whatsoever. Said restrictive
covenant shall be a covenant running with the land pursuant to
applicable law of the State of California.



     
3.     Mortgagee
Protection. No breach or violation of the restrictive
covenant contained herein shall defeat, render invalid,
diminish, or impair the lien of any mortgage or deed of trust
made in good faith and for value encumbering the Property or any
portion thereof, but said restrictive covenant shall be binding
upon and effective against each owner of the Property, or any
portion thereof, whose title thereof is acquired by foreclosure,
trustee sale, or otherwise.



-2-








 



     
4.     Amendment and
Termination. This Declaration shall be effective as of the
date of recordation hereof in the Office of the Santa Clara
County Recorder, and shall continue in effect thereafter for an
indefinite period. This Declaration may be amended in whole or
in part or terminated only by a written instrument executed by
Declarants, or by any successor-in-interest declarant, and an
authorized representative of the City of Mountain View, provided
such instrument is thereafter recorded in the Office of Santa
Clara County Recorder. Nothing herein shall be deemed to require
the approval or consent of any other owner or occupant of any
other parcel or real property located in the City of Mountain
View, for the amendment, in whole or in part, or for the
termination of this Declaration.



     
5.     Notices.
Any notice required or permitted to be sent to any person under
the provisions of this Declaration shall be in writing and shall
be deemed to have been properly sent when delivered personally
or mailed, postage prepaid, if to the Declarants, or to the City
of Mountain View, to the last known address of any such person
at the time of such mailing. In the event that the Property is
owned at any time by more than one person, as co-owners, any
such notice may be delivered or sent to any one of the co-owners
on behalf of all co-owners of the Property.



     
IN WITNESS WHEREOF, the undersigned Declarants
have signed this Declaration on JAN 24, 1986.




	 	 	 	 	 	 	 
	 
	
    Juana Salado, as Trustee of the

    Salado Living Trust

    dated June 7, 1976
    	 	 	 	 
	 
	
    /s/ JUANA SALADO

    	 	 	 	
    Walter A. Salado

    /s/ WALTER A. SALADO

    

    Walter A. Salado
    
	 
	
    /s/ MANUEL A. SALADO, JR.

    
Manuel A. Salado, Jr.
    	 	 	 	
    /s/ RICHARD M. SALADO

    

    Richard M. Salado
    
	 
	
    by:
    	 	
    /s/ WALTER A. SALADO

    
Walter A. Salado

    Attorney-in-Fact
    	 	
    by:
    	 	
    /s/ WALTER A. SALADO

    

    Walter A. Salado

    Attorney-in-Fact
    
	 
	
    /s/ CLARENCE A. SALADO

    
Clarence A. Salado
    	 	 	 	
    /s/ HAROLD A. SALADO

    

    Harold A. Salado
    
	 
	
    by:
    	 	
    /s/ WALTER A. SALADO

    
Walter A. Salado

    Attorney-in-Fact
    	 	
    by:
    	 	
    /s/ WALTER A. SALADO

    

    Walter A. Salado

    Attorney-in-Fact
    




-3-








 




	 	 	 
	
    RECORDING REQUESTED BY:
    	 	
    7006502
    
	 
	
    Title Insurance & Trust
    Co.     SJ-428434
    	 	
    RECORDED AT THE REQUEST OF
    
	
    When Recorded Return To:
    	 	
    TITLE INSURANCE and TRUST CO.
    
	 
	
    City Attorney
    	 	
    MAR 17 1981 8:01 AM
    
	
    540 Castro Street
    	 	 
	
    City of Mountain View
    	 	
    GEORGE A. MANN, Recorder
    
	
    Mountain View, CA 94041
    	 	
    Santa Clara County, Official Records
    





COVENANT RUNNING WITH THE LAND



Owner and Lessee have prepared a four-lot
subdivision generally described as shown on Exhibit A
attached hereto and incorporated herein by reference and
hereinafter referred to as the “Salado Subdivision.”
Owner and Lessee covenant and acknowledge that the Salado
Subdivision shall and must be undertaken in conformance with the
City of Mountain View North Bayshore Area Plan and the
Charleston-Rengstorff Precise Plan. No development may take
place on the northerly
9.7± acres unless it is
limited to open space/commercial uses all as specified in the
City of Mountain View C10 District. This
9.7± acre parcel
is specifically described in Exhibit B attached hereto and
incorporated herein by reference. It is acknowledged that full
development of the Salado Subdivision may take place on that
portion remaining after the deletion of the property shown on
Exhibit B, and that development on this entire property may
be a maximum of 428,020 square feet of industrial
R & D and/or office floor area.




This covenant acknowledges the above-referenced
development restrictions and independently covenants to abide by
them. This covenant shall run with the land and remain binding
on all future owners or holders of interest in this property
unless a change is agreed to by the owners and the City of
Mountain View in accordance with revised plans adopted by the
City of Mountain View for this area. This covenant shall also be
considered a condition appurtenant to the land and shall be
recorded.




	 	 	 	 	 	 	 
	
    Dated:
    	 	
    March 13, 1981
    	 	
    OWNER:
    
	 	 	
    
	 	 	 	 
	 
	 
	 	 	 	 	
    /s/ Juana Salado
    
	 	 	 	 	

	 	 	 	 	
    Juana Salado, Trustee
    
	 
	 	 	 	 	
    LESSEE:  CHARLESTON PROPERTIES,

    a General Partnership
    
	 
	 	 	 	 	
    By:
    	 	
    /s/ Boyd C. Smith

    
Boyd C. Smith

    Managing Partner
    









 




80022





3/12/81





RBP




     
F 964 PAGE 168




EXHIBIT A



DESCRIPTION



SALADO PROPERTY



All that certain real property situate in the
City of Mountain View, County of Santa Clara, State of
California and being more particularly describe as follows:




Parcel “A”




BEGINNING at the intersection of the Southerly
line of that certain strip of land, 30.00 feet in width,
condemned for public purposes by Final Decree of Condemnation, a
certified copy of which was recorded in Book 9515 of
Official Records at Page 727, Santa Clara County Records
with the generally Westerly line of that certain parcel of land
described in the Deed to the City of Mountain View, recorded
January 30, 1969 in Book 8419 of Official Records at
page 105, Santa Clara County Records; thence leaving said POINT
OF BEGINNING along said general Westerly line South 3°
30’ 56” West 1066.34 feet; thence along a tangent
curve to the left with a radius of 1450.00 feet through a
central angle of 22° 03’ 26” for an arc length of
558.21 feet; thence leaving said general Westerly line from
a tangent bearing of North 41° 24’ 30” West along
a curve to the left with a radius of 635.00 feet through a
central angle of 60° 35’ 30” for an arc length of
671.53 feet; thence South 78° 00’ 00” West
10.72 feet to a point on the Westerly line of that certain
100 acre parcel of land described in the Deed from
O.B. Scarpa, the duly appointed, qualified and acting
administrator of the Estate of Michael J. Scarpa, also known as
M.J. Scarpa, dec’d to Manuel A. Salado, recorded
March 7, 1944 in Book 1186 of Official Records at
Page 289, Santa Clara County Records; thence along last
described Westerly line North 6° 00’ 00” East
1471.62 feet to the Southwesterly corner of the hereinabove
described 30.00 foot strip of land; thence leaving said
Westerly line along the Southerly line of said 30.00 foot strip
of land South 84° 00’ 00” East 460.31 feet
to the POINT OF BEGINNING.



     
Containing 16.796 acres of land more or less.




Parcel “B”




BEGINNING at a point on the Easterly line of that
certain parcel of land described in the Deed from Manuel A.
Salado, et ux, to William McGregor, et ux, recorded
March 8, 1955 in Book 3108 of Official Records at
Page 130, Santa Clara County Records distant thereon North
6° 00’ 00” East 5.05 feet from the intersection
thereof with the Northerly line of Bayshore Highway, as said
line was established by Deed from M.J. Scarpa, et ux, to
the State of California, recorded January 11, 1933 in
Book  632 of Official Records at Page 563, Santa Clara
County Records; thence leaving said POINT OF BEGINNING along
said Easterly line of the parcel conveyed to McGregor North
6° 00’ 00” East 629.07 feet to the
Northeasterly corner thereof; thence along the Northeasterly
line of said parcel North 47° 43’ 00” West
330.00 feet to the intersection thereof with the Westerly
line of the hereinabove described 100 acre parcel of land;
thence along said








 




Westerly line North 6° 00’ 00”
East 264.66 feet; thence leaving said Westerly line North
78° 00’ 00” East 33.46 feet; thence along a
tangent curve to the right with a radius of 565.00 feet
through a central angle of 76° 32’ 42” for an arc
length of 754.82 feet to a point of reverse curvature;
thence from a tangent bearing of South 25° 27’
18” East along a curve to the left with a radius of
1485.00 feet through a central angle of 29° 19’
25” for an arc length of 760.01 feet to a point of
reverse curvature; thence from a tangent bearing of South
54° 46’ 43” East along a curve to the right with
a radius of 30.00 feet through a central angle of 28°
08’ 48” for an arc length of 14.74 feet to a
point on the Westerly line of that certain parcel of land
described as Parcel 1 in the Deed to Pacific Gas &
Electric Company, a California Corporation, recorded
April 5, 1955 in Book 3134 of Official Records at
Page 399, Santa Clara County Records; thence along last
described Westerly line South 4° 12’ 34” West
30.90 feet; thence leaving said Westerly line from a
tangent bearing of South 31° 06’ 26” West along a
curve to the left with a radius of 330.00 feet through a
central angle of 26° 53’ 52” for an arc length of
154.92 feet; thence South 4° 12’ 34” West
502.22 feet; thence along a tangent curve to the right with
a radius of 170.00 feet through a central angle of
125° 54’ 33” for an arc length of
373.58 feet; thence North 49° 52’ 53” West
245.64 feet; thence along a tangent curve to the right with
a radius of 2968.16 feet through a central angle of 2°
15’ 46” for an arc length of 117.22 feet; thence
North 47° 37’ 07” West 213.52 feet; thence
along a tangent curve to the right with a radius of
7910.44 feet through a central angle of 2° 02’
39.6” for an arc length of 282.25 feet to the POINT OF
BEGINNING.




Containing 26.380 acres of land more or less.




		
	 	
    Prepared March 12, 1981 by
    
	 
	 
	 	
    MARK THOMAS & CO. INC.
    
	 
	 
	 	
    /s/ Harry F. Aumack, Jr.
    
	 	
    Harry F. Aumack, Jr. RCE 8533
    





EXHIBIT A








 




EXHIBIT B



DESCRIPTION




Undeveloped Parcel (Lands of Salado)




All that certain real property situate in the
City of Mountain View, County of Santa Clara, State of
California and being more particularly described as follows:




BEGINNING at the intersection of the Southerly
line of that certain strip of land, 30.00 feet in width,
condemned for public purposes by Final Decree of Condemnation, a
certified copy of which was recorded in Book 9515 of Official
Records at Page 727, Santa Clara County Records with the
general Westerly line of that certain Parcel of land described
in the Deed to the City of Mountain View, recorded
January 30, 1969 in Book 8419 of Official Records at
Page 105, Santa Clara County Records; thence leaving said
POINT OF BEGINNING along said general Westerly line South
3° 30’ 56” West 933.29 feet; thence leaving said
general Westerly line North 72° 31’ 25” West
510.98 feet to a point on the Westerly line of that certain 100
acre parcel of land described in the Deed from O.B. Scarpa, the
duly appointed, qualified and acting administrator of the Estate
of Michael J. Scarpa, also known as M. J. Scarpa, dec’d to
Manuel A. Salado, recorded March 7, 1944 in Book 1186 of
Official Records at Page 289, Santa Clara County Records;
thence along last described Westerly line North 6° 00’
00” East 830.75 feet to the Southwesterly corner of the
hereinabove described 30.00 foot strip of land; thence leaving
said Westerly line along the Southerly line of said 30.00 foot
strip of land South 84° 00’ 00” East 460.30 feet
to the POINT OF BEGINNING.




Containing 9.702 acres of land more or less.




		
	 	
    Prepared March 12, 1981 by
    
	 
	 	
    MARK THOMAS & CO. INC.
    
	 
	 	
    /s/ HARRY F. AUMACK, JR.
    
	 	
    

	 	
    Harry F. Aumack, Jr. RCE 8533
    









 




Exhibit D



Depiction of Building F-2593 Cost
Expansion Building



[Hatch Marked]



Charleston Intuit Lease

Phase 2-Buildings A-F

August 4, 2003-Final







 






EXHIBIT D






 




Exhibit E



Depiction of Building A-2600
Casey



[Hatch Marked]



Charleston Intuit Lease

Phase 2-Buildings A-F

August 4, 2003-Final







 






EXHIBIT E






 




Exhibit F



Rules and Regulations


Charleston Intuit Lease

Phase 2-Buildings A-F

August 4, 2003-Final







 




RULES AND REGULATIONS OF THE
BUILDING



1


     
No sign, placard, picture, advertisement, name or
notice shall be inscribed, displayed or printed or affixed on or
to any part of the outside of the Premises or any exterior
windows of the Premises without the written consent of Landlord
first had and obtained and Landlord shall have the right to
remove any such sign, placard, picture, advertisement, name or
notice without notice to and at the expense of Tenant.



     
All approved signs or lettering on outside doors
shall be printed, painted, affixed or inscribed at the expense
of Tenant.



     
Tenant shall not place anything or allow anything
to be placed near the glass of any window, door partition or
wall which may appear unsightly from outside the Premises.




2


     
Tenant shall not occupy or permit any portion of
the Premises to be occupied for the manufacture or sale of
liquor, narcotics or tobacco in any form.




3


     




4


     
The sidewalks, passages, exits, entrances,
elevators and stairways shall not be obstructed by Tenant or
used by it for any purpose other than ingress to and egress from
its Premises. The passages, exits, entrances, stairways,
balconies and roof are not for the use of the general public and
Landlord shall in all cases retain the right to control and
prevent access thereto by all persons whose presence in the
judgement of Landlord shall be prejudicial to the safety,
character, reputation and interests of the Premises and its
tenants, provided that nothing herein contained shall be
construed to prevent such access to persons with whom Tenant
normally deals in the ordinary course of Tenant’s business
unless such persons are engaged in illegal activities. Tenant,
employees or invitees of Tenant shall not go upon the roof of
the Premises.




5


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




6


     
Tenant shall not overload the floor of the
Premises or in any way deface the Premises or any part thereof.




7


     
Landlord shall have the right to prescribe the
weight, size and portion of all safes and other heavy equipment
brought into the Premises. Safes or other heavy objects shall,
if considered necessary by Landlord, stand on wood strips of
such thickness as is necessary to properly distribute the
weight. Landlord will not be responsible for loss of or damage
to any such safe or property from any cause and all damage done
to the Premises by moving or maintaining any such safe or other
property shall be repaired at the expense of Tenant.




8


     




9


     
Tenant shall not use, keep or permit to be used
or kept any foul or noxious gas or substance in the Premises, or
permit or suffer the Premises to be occupied or used in a manner
offensive or objectionable to Landlord or other occupants of the
Premises by reason of noise, odors and/or vibrations, or
interfere in any way with other tenants or those having business
therein, nor shall any animals or birds with the exception of
Dog Guides for the blind, be brought in or kept about the
Premises.




10


     
Except for designated cafeteria areas or as
permitted in a Lease, no cooking (except microwave cooking and
coffee/tea brewing) shall be done or permitted by Tenant on the
Premises, nor shall the Premises be used for the storage of
merchandise for washing clothes, for lodging, or for any
improper, objectionable or immoral purposes.




11


     
 





EXHIBIT F







 




 12




     
Tenant upon the termination of the tenancy, shall
deliver to Landlord the keys of offices, rooms and toilet rooms
which have been furnished the Tenant or which Tenant shall have
had made.




13



     
Tenant shall see that the doors of the Premises
are closed and securely locked before leaving the Premises and
must observe strict care and caution that all water faucets or
water apparatus within the Premises are entirely shut off before
Tenant or Tenant’s employees leave the Premises.




14



     
Landlord reserves the right to exclude or expel
from the Premises any person who, in the judgment of Landlord,
is intoxicated or under the influence of liquor or drugs, or who
shall in any manner do any act in violation of any of the rules
and regulations of the Premises.




15



     




16



     




17



     
Tenant shall not disturb, solicit, or canvass any
occupant of the Premises and shall cooperate to prevent same.




18



     
Tenant agrees to assume responsibility for
compliance by its employees with the parking provision contained
herein. Tenant hereby authorizes Landlord at Tenant’s sole
expense to tow away from the Complex any vehicle belonging to
Tenant or Tenant’s employees parked in violation of these
provisions, or to attach violation stickers or notices to such
vehicle. Tenant shall use the parking areas for vehicle parking
only, and shall not use the parking areas for storage.




	 	 	 
	
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    Tenant’s initials





	 	 	 
	 	 	
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