**[ * ] = Certain confidential information contained in this document, marked by brackets,has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule24b-2 of the Securities Exchange Act of 1934, as amended.****Exhibit 10.26****Legacy Baytech Park****Lease Agreement****Basic Lease Information**     **Lease Date:** May 24, 2006       **Landlord:** LEGACY PARTNERS I SAN JOSE, LLC,  a Delaware limited liability company     **Landlord’s Address:** c/o Legacy Partners Commercial, Inc.  4000 East Third Avenue, Suite 600  Foster City, California 94404-4805     **Tenant:** Endwave Corporation, a Delaware corporation     **Tenant’s Address:** 776 Palomar Avenue    Sunnyvale, California 94085       **Premises:** Approximately 32,805 rentable square feet as shown on Exhibit A     **Premises Address:** 130 Baytech Drive    San Jose, California 95134-2302       **Building**                    **:** Approximately 32,805 rentable square feet  **Lot:** APN 015-030-93  **Legacy Baytech Park (“Park”):** Approximately 187,742 rentable square feet     **Term:** The commencement date of the Lease (“Commencement Date”) shall occur on August 15, 2006 unless the TenantImprovements are not Substantially Complete (as each term is defined in Exhibit B) on or before such date, inwhich case, the Commencement Date shall be the date the Tenant Improvements are Substantially Complete;provided, however, if Tenant occupies the Premises prior to Substantial Completion of the Tenant Improvementsfor the purpose of doing business, then the Commencement Date shall be the date Tenant occupies the Premises.The expiration date of the Lease (“Expiration Date”) shall occur on that date which is sixty (60) monthsfollowing the Commencement Date.     **Base Rent (¶3):**       **Months of Term** **Base Rent Per Month**01 – 12 $**[ * ]**13 – 24 $**[ * ]**25 – 26 $**[ * ]**37 – 48 $**[ * ]**49 – 60 $**[ * ]**     **Advance Rent (¶3):** **[ * ]**       **Security Deposit (¶4):** **[ * ]**     **Tenant’s Share of Operating Expenses (¶6.1):** 17.47% of the Park**Tenant’s Share of Tax Expenses (¶6.2):** 17.47% of the Park**Tenant’s Share of Common Area Utility Costs (¶7.2):** 17.47% of the Park**Tenant’s Share of Utility Expenses (¶7.1):** 17.47% of the Park     **Permitted Uses (¶9):** The Premises shall be used solely for office, research and development, software, storage, lightassembly, marketing and for no other purpose without Landlord’s prior written consent, but only to theextent permitted by the City of San Jose, California, and all agencies and governmental authoritieshaving jurisdiction thereof.     **Parking Spaces:** One Hundred Twenty-Three (123) non-exclusive and non-designated spaces in the Park     **Broker (¶33):** Marty Morici, Colliers International for Tenant  Commercial Property Services (CPS) for Landlord     **Exhibits:** *Exhibit A -* *Premises, Building, Lot and/or Park*  *Exhibit B -* *Tenant Improvements*  *Exhibit C -* *Rules and Regulations*  *Exhibit D -* *Intentionally omitted*  *Exhibit E -* *Tenant’s Initial Hazardous Materials Disclosure Certificate*  *Exhibit F -* *Change of Commencement Date — Example*  *Exhibit G -* *Sign Criteria*     **Addenda:** *Addendum 1 -* *Option to Extend the Lease Term*  *Addendum 2 -* *Letter of Credit* i.
 

 
Tableof Contents           Page1. Premises  1 2. Occupancy; Adjustment of Commencement Date  1 3. Rent  1 4. Security Deposit  2 5. Condition of Premises; Tenant Improvements  2 6. Additional Rent  2 7. Utilities and Services  4 8. Late Charges  4 9. Use of Premises  4 10. Alterations; and Surrender of Premises  5 11. Repairs and Maintenance  6 12. Insurance  7 13. Limitation of Liability and Indemnity  8 14. Assignment and Subleasing  8 15. Subordination  9 16. Right of Entry  10 17. Estoppel Certificate  10 18. Tenant’s Default  10 19. Remedies for Tenant’s Default  11 20. Holding Over  11 21. Landlord’s Default  12 22. Parking  12 23. Transfer of Landlord’s Interest  12 24. Waiver  12 25. Casualty Damage  12 26. Condemnation  13 27. Environmental Matters/Hazardous Materials  13 28. Financial Statements  14 29. General Provisions  14 30. Signs  15 31. Mortgagee Protection  16 32. Warranties of Tenant  16 33. Brokerage Commission  16 34. Quiet Enjoyment  16 35. Cubicles  16  [ * ] = Certain confidential information contained in this document, marked by brackets, hasbeen omitted and filed separately with the Securities and Exchange Commission pursuant to Rule24b-2 of the Securities Exchange Act of 1934, as amended. ii.
 

 
**Lease Agreement**The Basic Lease Information and this Lease are, and shall be construed as, a single instrument.**1. Premises**Landlord leases the Premises to Tenant upon the terms and conditions contained herein. Tenantshall have the right to use, on a non-exclusive basis, parking areas and ancillary facilitieslocated within the Common Areas of the Park, subject to the terms of this Lease. For purposes ofthis Lease, (i) as of the Lease Date, the rentable square footage area of each of the Premises, theBuilding and the Park shall be deemed to be the number of rentable square feet as set forth in theBasic Lease Information, (ii) the rentable square footage of the Premises may include aproportionate share of certain areas used in common by all occupants of the Building and/or thePark (for example corridors, common rest-rooms, an electrical room or telephone room) and (iii) thenumber of rentable square feet of any of the Building and the Park may subsequently change afterthe Lease Date commensurate with any physical modifications to any of the foregoing by Landlord(but not as a result of calculation using another standard of measurement), and Tenant’s Shareshall accordingly change. The term “Project” means and collectively refers to the Building, CommonAreas, Lot and Park.**2. Occupancy; Adjustment of Commencement Date**     **2.1**If Landlord, for any reason whatsoever, cannot deliver possession of the Premises toTenant on the Commencement Date in the condition specified in Section 5 and Exhibit B hereof,Landlord shall neither be subject to any liability nor shall the validity of this Lease beaffected; provided, the Term and the obligation to pay Rent shall commence on the date thePremises are in the condition required by Section 5 and Exhibit B and possession is actuallytendered to Tenant and the Expiration Date shall be extended commensurately. If the commencementdate and/or the expiration date of this Lease is other than the Commencement Date and ExpirationDate specified in the Basic Lease Information, the parties shall execute a written amendment tothis Lease, substantially in the form of Exhibit F hereto specifying the actualcommencement date, expiration date and the date on which Tenant is to commence paying Rent. Tenantshall execute and return such amendment to Landlord within fifteen (15) days after Tenant’s receiptthereof. The word “Term” means the initial term of this Lease and any valid extension(s) thereof.     **2.2**If Landlord permits Tenant to occupy the Premises prior to the actual Commencement Date,such occupancy shall be at Tenant’s sole risk and subject to all the provisions of this Lease(including Tenant’s obligation to pay Rent). Additionally, Landlord shall have the right to imposeadditional reasonable conditions on Tenant’s early occupancy. As set forth in Section 13 ofExhibit B hereto, Tenant may access the Premises prior to the Completion Date (as definedin Exhibit B) to perform Tenant’s Pre-Occupancy Work (as defined in Exhibit B).     **2.3**Tenant shall have a one-time option (the “Termination Option”) to terminate this Lease,effective as of the last day of the forty-second (42nd) full calendar month of the Lease Term(“Effective Date”). In the event this Lease is not terminated effective as of the Effective Date,this Lease shall continue in full force and effect. The Termination Option is granted subject tothe following terms and conditions:          **2.3.1**Tenant delivers to Landlord a written notice of Tenant’s election to exercise theTermination Option (“Termination Notice”), which notice is given not less than three hundred sixtyfive (365) days prior to the Effective Date (the “Termination Date”);          **2.3.2**Tenant shall not have been in default of its obligations under this Lease beyond anyapplicable cure periods at any time during the Lease Term; and          **2.3.3**Tenant pays to Landlord, concurrently with Tenant’s exercise of the Termination Optionand delivery to Landlord of the Termination Notice as required above, a cash lease termination fee(collectively, the “Fee”) in the aggregate amount of (a) a sum equal to the unamortized portion ofthe costs of the improvements and alterations made by Landlord to the Premises; (b) a sum equal tothe unamortized portion of the brokerage commissions paid by Landlord in connection with this Leaseand (c) an additional fee in the amount of Sixty Thousand Dollars ($60,000). If the TerminationNotice is not given as and when required by the provisions of this Section 2.2 set forth above andthe sums required by the provisions of this Section 2.2 set forth above are not paid concurrentlywith Tenant’s delivery to Landlord of the Termination Notice, then Tenant’s Termination Option asprovided for herein shall forever terminate and be of no further force or effect. At all timesduring the period from the date the Termination Notice is given through the Termination Date Tenantshall be fully obligated to perform all obligations required to be performed by it under the Leaseas and when required by this Lease, including, without limitation, the payment of Base Rent andTenant’s Share of Direct Expenses.          **2.3.4**If Tenant timely and properly exercises the Termination Option, (i) all Rent payableunder this Lease shall be paid through and apportioned as of the Termination Date (in addition topayment by Tenant of the Fee); (ii) neither party shall have any rights, estates, liabilities, orobligations under this Lease for the period accruing after the Termination Date, except thosewhich, by the provisions of this Lease, expressly survive the expiration or termination of theLease; (iii) Tenant shall surrender and vacate the Premises and deliver possession thereof toLandlord on or before the Termination Date in the condition required under this Lease for surrenderof the Premises; and (iv) Landlord and Tenant shall enter into a written agreement reflecting thetermination of this Lease upon the terms provided for herein, which agreement shall be executedwithin thirty (30) days after Tenant exercises the Termination Option and delivers to Landlord theTermination Notice and Fee required above. It is the parties’ intention that nothing containedherein shall impair, diminish or otherwise prevent Landlord from recovering from Tenant suchadditional sums as may be necessary for payment of Tenant’s Share of Operating Expenses, TaxExpenses, Common Area Utility Costs, and Utility Expenses and any other sums due and payable underthis Lease (provided such sums relate to items accrued prior to the expiration or earliertermination of the Lease), including without limitation, any sums required to repair any damage tothe Premises and/or restore the Premises to the condition required under the provisions of thisLease.          **2.3.5**The Termination Option shall automatically terminate and become null and void upon theearlier to occur of (i) the default by Tenant beyond any applicable cure periods of its obligationsunder this Lease at any time during the Lease Term; (ii) the termination of Tenant’s right topossession of the Premises; or (iii) the failure of Tenant to timely or properly exercise theTermination Option as contemplated herein. This Termination Option is personal to Tenant, and anyAffiliate (as defined in Section 14.8 below) and may not be assigned, voluntarily or involuntarily,to any party or entity, separate from or as part of the Lease.**3. Rent**On the date that Tenant executes this Lease, Tenant shall deliver to Landlord the original executedLease, the Advance Rent (which shall be applied against Rent payable for the first month(s) Tenantis required to pay Rent), the Security Deposit, and all insurance certificates required to bedelivered under Section 12 and Exhibit B of this Lease. Tenant agrees to pay Landlordwithout prior notice or demand, abatement, offset, deduction or claim, in advance at Landlord’sAddress, on the Commencement Date and thereafter on the[ * ] = Certain confidential information contained in this document, marked by brackets, hasbeen omitted and filed separately with the Securities and Exchange Commission pursuant to Rule24b-2 of the Securities Exchange Act of 1934, as amended.
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first (1st) day of each month throughout the Term (i) Base Rent and (ii) as Additional Rent,Tenant’s Share of Operating Expenses, Tax Expenses, Common Area Utility Costs, and UtilityExpenses. The term “Rent” means the aggregate of all these amounts. If Landlord permits Tenant tooccupy the Premises without requiring Tenant to pay rental payments for a period of time, thewaiver of the requirement to pay rental payments shall only apply to the waiver of Base Rent. Ifany rental payment date (including the Commencement Date) falls on a day of the month other thanthe first day of such month or if any rental payment is for a period which is shorter than one (1)month, then the rental for any such fractional month shall be a proportionate amount of a fullcalendar month’s rental based on the proportion that the number of days in such fractional monthbears to the number of days in the calendar month during which the fractional month occurs. Allother payments or adjustments required to be made under the terms of this Lease that requireproration on a time basis shall be prorated in the same manner. To the extent not already paid aspart of the Advance Rent any prorated Rent shall be paid on the Commencement Date, and any proratedRent for the final calendar month shall be paid on the first day of the calendar month in which thedate of expiration or termination occurs.**4. Security Deposit**Simultaneously with Tenant’s execution and delivery of this Lease, Tenant shall deliver toLandlord, as a Security Deposit for the faithful performance by Tenant of its obligations underthis Lease, the amount specified in the Basic Lease Information. If Tenant is in defaulthereunder, Landlord may, but without obligation to do so, use all or any portion of the SecurityDeposit to cure the default or to compensate Landlord for all damages sustained by Landlord inconnection therewith. Tenant shall, immediately on demand, pay to Landlord a sum equal to theportion of the Security Deposit so applied or used to replenish the amount of the Security Depositheld to increase such deposit to the amount initially deposited with Landlord. At the expirationor earlier termination of this Lease, within the time period(s) prescribed by California Civil CodeSection 1950.7 (or any successor law), Landlord shall return the Security Deposit to Tenant, lesssuch amounts as are reasonably necessary, as determined by Landlord, to remedy Tenant’s default(s)hereunder or to otherwise restore the Premises to a clean and safe condition, reasonable wear andtear excepted. If the cost to restore the Premises exceeds the amount of the Security Deposit,Tenant shall promptly deliver to Landlord any and all of such excess sums. Landlord shall not berequired to segregate the Security Deposit from other funds, and, unless required by law, interestshall not be paid on the Security Deposit. Tenant shall not have any use of, or right of offsetagainst, the Security Deposit.**5. Condition of Premises; Tenant Improvements**Tenant agrees (i) to accept the Premises on the Commencement Date (and by taking possession of thePremises Tenant shall be deemed to have accepted the Premises) as then being suitable for Tenant’sintended use and in good operating order, condition and repair in its then existing “AS IS”condition, except as otherwise set forth in Exhibit B hereto and (ii) that except asexpressly set forth in this Lease, neither Landlord nor any of Landlord’s agents, representativesor employees has made any representations as to the suitability, fitness or condition of thePremises for the conduct of Tenant’s business or for any other purpose, including withoutlimitation, any storage incidental thereto. The Tenant Improvements (defined in Exhibit B)shall be installed in accordance with the terms and provisions of Exhibit B.Notwithstanding the foregoing, within five (5) business days after the Substantial Completion (assuch term is defined in Exhibit B hereto) of the Tenant Improvements representatives of Landlordand Tenant shall make a joint inspection of the Tenant Improvements and the results of suchinspection shall be set forth in a written list specifying the incomplete items as well as thoseitems for which corrections need to be made (the “Punchlist Items”). Landlord and Tenant shallpromptly (by no later than three (3) business days thereafter) and in good faith approve thewritten list of Punchlist Items. Landlord, at its sole cost and expense, shall use commerciallyreasonable efforts to cause the Punchlist Items to be completed and/or corrected, as applicable,within thirty (30) days following the approval by Landlord and Tenant of the written list ofPunchlist Items. Upon completion of the Punchlist Items to Tenant’s reasonable satisfaction Tenantshall promptly notify Landlord in writing that such items have been completed to Tenant’sreasonable satisfaction.**6. Additional Rent**Landlord and Tenant intend that this Lease be a “triple net lease.” The costs and expensesdescribed in this Section 6 and all other sums, charges, costs and expenses specified in this Leaseother than Base Rent are to be paid by Tenant to Landlord as additional rent (collectively,“Additional Rent”).     **6.1 Operating Expenses:**          **6.1.1 Definition of Operating Expenses:**Tenant shall pay to Landlord Tenant’s Share of allOperating Expenses as Additional Rent. The term “Operating Expenses” means the total amounts paidor payable by Landlord in connection with the ownership, management, maintenance, repair andoperation of the Premises and Project, except as expressly excluded from the definition ofOperating Expenses. The term “Common Areas” means (a) all areas and facilities within the Parkexclusive of the Premises and other portions of the Park leasable exclusively to other tenants and(b) the areas within the Building which are not leased exclusively to any tenant in the Building.The Common Areas include, but are not limited to, interior lobbies, main electric room,telecommunications closets, mezzanines, parking areas, access and perimeter roads, sidewalks, andlandscaped areas (and Tenant acknowledges and agrees that the size and shape of the Common Areasmay be altered in the event the parcel or subdivision map referenced below in this Section 6.1.1 isrecorded). Operating Expenses may include, but are not limited to, Landlord’s cost of: (i)repairs to, and maintenance of, the roof membrane, the non-structural portions of the roof and thenon-structural elements of the perimeter exterior walls of the Building; (ii) maintaining theCommon Areas of the Building and Park; (iii) annual insurance premium(s) for any and all insuranceLandlord elects to obtain, including without limitation, “all risk” or “special purpose” coverage,earthquake and flood for the Project, rental value insurance, and subject to Section 25 below, anydeductible; (iv) (a) modifications and/or new improvements to any portion of the Project occasionedby any rules, laws or regulations effective subsequent to the Lease Date; (b) reasonably necessaryreplacement improvements to any portion of the Project after the Commencement Date amortized as setforth below; and (c) new improvements to the Project that are intended to reduce operating costs orimprove life/safety conditions; provided, if such costs are of a capital nature, then such costs orallocable portions thereof shall be amortized on a straight-line basis over the estimated usefullife of the capital item in accordance with real estate industry standards, as reasonablydetermined by Landlord (but in no event less than ten (10) years), together with reasonableinterest on the unamortized balance; (v) the management and administration of the Project,including, without limitation, a property management fee, accounting, auditing, billing, postage,salaries and benefits for employees, whether located on the Project or off-site, payroll taxes andlegal and accounting costs and all fees, licenses and permits related to the ownership, operationand management of the Project; (vi) preventative maintenance and repair contracts including, butnot limited to, contracts for elevator systems (if any), heating, ventilation and air conditioningsystems and lifts for disabled persons; (vii) security and fire protection services for any portionof the Project, if and to the extent, in Landlord’s sole discretion, such services are provided;(viii) the creation and modification of any licenses, easements or other similar undertakings withrespect to the Project, including, without limitation, the cost of the creation, management andoperation of an owner’s association to manage and operate the Park at any time and from time totime (the “Association”); (ix) supplies, materials, equipment, rental equipment and other similaritems used in the operation and/or maintenance of the Project and any reasonable reservesestablished for replacement or repair of any Common Area improvements or equipment; (x) any and alllevies, charges, fees and/or assessments payable to the Association or any other applicable owner’sassociation or similar body; (xi) any barrier removal work or other required improvements,alterations or work to any portion of the Project generally required under the ADA (defined below)(the “ADA Work”); provided, if such ADA Work is required under the ADA due to Tenant’s use of thePremises or any Alteration (defined below) (other[ * ] = Certain confidential information contained in this document, marked by brackets, hasbeen omitted and filed separately with the Securities and Exchange Commission pursuant to Rule24b-2 of the Securities Exchange Act of 1934, as amended.
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 than the initial Tenant Improvements) made to the Premises by or on behalf of Tenant, then thecost of such ADA Work shall be borne solely by Tenant and shall not be included as part of theOperating Expenses; and (xii) the repairs and maintenance items set forth in Section 11.2 below.Landlord shall have the right, from time to time, to equitably allocate and prorate some or all ofthe Operating Expenses among different tenants and/or different buildings of the Project and/or ona building by building basis and Tenant acknowledges and agrees that Landlord shall have the right,in its sole and absolute discretion, to record a parcel or subdivision map with respect to the Parkor a portion of the Park, the recordation of which may have the effect of increasing or decreasingTenant’s Share of Operating Expenses. In either of such events, Tenant’s Share of OperatingExpenses shall be commensurately revised to reflect any such increases or decreases that may resulttherefrom.          **6.1.2 Operating Expense Exclusions:**The term “Operating Expenses” shall not include: (i)costs (including permit, license, and inspection fees) incurred in renovating, improving ordecorating vacant space or space for other tenants within the Project; (ii) costs incurred becauseLandlord or another tenant actually violated the terms and conditions of any lease within theProject; (iii) legal and auditing fees (other than those fees reasonably incurred in connectionwith the maintenance and operation of any portion the Project), leasing commissions, advertisingexpenses, and other costs incurred in connection with the original leasing of the Project or futurere-leasing of any portion of the Project; (iv) depreciation of the Building or any otherimprovements situated within the Project; (v) any items for which Landlord is actually reimbursed;(vi) costs of repairs or other work necessitated by casualty (excluding any deductibles) and/orcosts of repair or other work necessitated by the exercise of the right of eminent domain to theextent insurance proceeds or a condemnation award, as applicable, is actually received by Landlordfor such purposes; provided, such costs of repairs or other work shall be paid by the parties inaccordance with the provisions of Sections 25 and 26, below; (vii) other than any interest chargesfor capital improvements referred to in Section 6.1.1(iv) hereinabove, any interest or payments onany financing for the Building or the Park, interest and penalties incurred as a result ofLandlord’s late payment of any invoice (provided that Tenant pays Tenant’s Share of OperatingExpenses and Tax Expenses to Landlord when due as set forth herein), and any bad debt loss, rentloss or reserves for same; (viii) costs associated with the investigation and/or remediation ofHazardous Materials (hereafter defined) present in, on or about any portion of the Project, unlesssuch costs and expenses are the responsibility of Tenant as provided in Section 27 hereof, in whichevent such costs and expenses shall be paid solely by Tenant in accordance with Section 27 hereof;(ix) Landlord’s cost for the repairs and maintenance items set forth in Section 11.3; (x) overheadand profit increment paid to Landlord or to subsidiaries or affiliates of Landlord for goods and/orservices in the Project to the extent the same exceeds the costs of such by unaffiliated thirdparties on a competitive basis; or any costs included in Operating Expenses representing an amountpaid to any entity related to Landlord which is in excess of the amount which would have been paidin the absence of such relationship; (xi) any payments under a ground lease or master lease; (xii)any costs, fines, or penalties incurred due to violations by Landlord of any governmental rule orauthority, this Lease or any other lease in the Project, or due to Landlord’s gross negligence orwillful misconduct; (xiii) the cost of correcting any building code or other violations, whichwritten violations were actually known to Landlord prior to the Commencement Date of this Lease;(xiv) the cost of containing, removing, or otherwise remediating any contamination of the Project(including the underlying land and ground water) by any Hazardous Materials (including, withoutlimitation, asbestos and “PCB’s”) in the event such contamination is not the responsibility orliability of Tenant under Section 27 of this Lease; (xv) management costs to the extent theyexceed commercially reasonable management fees at comparable properties or business parks; (xvi)costs for sculpture, paintings, or other objects of art (and insurance thereon or extraordinarysecurity in connection therewith); and (xvii) any costs which may be incurred by Landlord to bringthe Project into compliance with the ADA in effect priorto the Commencement Date, except to theextent such non-compliance results from Tenant’s particular use of the Premises.     **6.2 Tax Expenses:**Tenant shall pay to Landlord Tenant’s Share of all Tax Expenses applicableto the Project. Prior to delinquency, Tenant shall pay any and all taxes and assessments leviedupon Tenant’s Property (defined below in Section 10) located or installed in or about the Premisesby, or on behalf of Tenant. To the extent any such taxes or assessments are not separatelyassessed or billed to Tenant, then Tenant shall pay the amount thereof as invoiced by Landlord.Tenant shall also reimburse and pay Landlord, as Additional Rent, within ten (10) days after demandtherefor, one hundred percent (100%) of (i) any increase in real property taxes attributable to anyand all Alterations (defined below in Section 10), Tenant Improvements, fixtures, equipment orother improvements of any kind whatsoever placed in, on or about the Premises for the benefit of,at the request of, or by Tenant, and (ii) taxes and assessments levied or assessed upon or withrespect to the possession, operation, use or occupancy by Tenant of the Premises or any otherportion of the Project. “Tax Expenses” means, without limitation, any form of tax and assessment(general, special, supplemental, ordinary or extraordinary), commercial rental tax, payments underany improvement bond or bonds, license fees, license tax, business license fee, rental tax,transaction tax or levy imposed by any authority having the direct or indirect power of tax(including any governmental, school, agricultural, lighting or other improvement district) asagainst any legal or equitable interest of Landlord in the Premises, Project or Park or any othertax, fee, or excise, however described, including, but not limited to, any tax resulting from therecordation of any parcel or subdivision map with respect to the Park and/or any tax imposed insubstitution (partially or totally) of any tax previously included within the definition of TaxExpenses. “Tax Expenses” shall not include (a) any franchise, estate, inheritance, net income, orexcess profits tax imposed upon Landlord, (b) any penalty or fee imposed solely as a result ofLandlord’s failure to pay Tax Expenses when due, and (c) any items included as Operating Expenses.In the event that a parcel or subdivision map with respect to the Park or a portion of the Park isrecorded by Landlord, Tenant’s Share of Tax Expenses shall be commensurately revised to reflect anyincreases or decreases that may result from the impact of such parcel or subdivision map.     **6.3 Payment of Expenses:**Landlord shall estimate Tenant’s Share of the Operating Expenses andTax Expenses for the calendar year in which the Lease commences. Commencing on the CommencementDate, one-twelfth (1/12th) of this estimated amount shall be paid by Tenant to Landlord, asAdditional Rent, and thereafter on the first (1st) day of each month throughout the remainingmonths of such calendar year. Thereafter, Landlord may estimate such expenses for each calendaryear during the Term of this Lease and Tenant shall pay one-twelfth (1/12th) of such estimatedamount as Additional Rent on the first (1st) day of each month throughout the Term. Tenant’sobligation to pay Tenant’s Share of Operating Expenses and Tax Expenses shall survive theexpiration or earlier termination of this Lease.     **6.4 Annual Reconciliation:**By June 30th of each calendar year, Landlord shall furnish Tenantwith an accounting of actual and accrued Operating Expenses and Tax Expenses; provided, failure byLandlord to give such accounting by such date shall not constitute a waiver by Landlord of itsright to collect any underpayment by Tenant at any time. Within thirty (30) days of Landlord’sdelivery of such accounting, Tenant shall pay to Landlord the amount of any underpayment. Landlordshall credit the amount of any overpayment by Tenant toward the next estimated monthlyinstallment(s) falling due, or if the Term of the Lease has expired, refund the amount ofoverpayment to Tenant as soon as possible thereafter, and no later than thirty (30) days followingthe finalization of such accounting. If the Term of the Lease expires prior to the annualreconciliation of expenses Landlord shall have the right to reasonably estimate Tenant’s Share ofsuch expenses, and deduct any underpayment from Tenant’s Security Deposit. Failure by Landlord toaccurately estimate Tenant’s Share of such expenses or to otherwise perform such reconciliationshall not constitute a waiver of Landlord’s right to collect any underpayment at any time duringthe Term or after the expiration or earlier termination of this Lease.     **6.5 Audit:**After delivery to Landlord of at least thirty (30) days prior written notice,Tenant, at its sole cost and expense through any accountant designated by it, shall have the rightto examine and/or audit the books and records evidencing such expenses for the previous one (1)calendar year, during Landlord’s reasonable business hours but not more frequently than once duringany calendar year. Tenant may not compensate any such accountant on a contingency fee basis. Theresults of any such audit (and[ * ] = Certain confidential information contained in this document, marked by brackets, hasbeen omitted and filed separately with the Securities and Exchange Commission pursuant to Rule24b-2 of the Securities Exchange Act of 1934, as amended.
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any negotiations between the parties related thereto) shall be maintained strictlyconfidential by Tenant and its accounting firm and shall not be disclosed, published or otherwisedisseminated to any other party other than to Landlord and its authorized agents, unless requiredby applicable law. Landlord and Tenant each shall use its commercially reasonable efforts tocooperate in such negotiations and to promptly resolve any discrepancies between Landlord andTenant in the accounting of such expenses. If through such audit it is determined that there is adiscrepancy of more than five percent (5%), then Landlord shall reimburse Tenant for the reasonableaccounting costs and expenses incurred by Tenant in performing such audit, including Tenant’sin-house or outside auditors or accountants.**7. Utilities and Services**     Tenant shall pay the cost of all (i) water, sewer use, sewer discharge fees and sewer connectionfees, gas, electricity, telephone, telecommunications, cabling and other utilities billed ormetered separately to the Premises and (ii) refuse pickup and janitorial service to the Premises.     **7.1 Utility Expenses:**Tenant shall pay to Landlord Tenant’s Share of any utility fees, usecharges, or similar services that are not billed or metered separately to Tenant (collectively,“Utility Expenses”). If Landlord reasonably determines that Tenant’s Share of Utility Expenses isnot commensurate with Tenant’s use of such services, Tenant shall pay to Landlord the amount whichis attributable to Tenant’s use of the utilities or similar services, as reasonably estimated anddetermined by Landlord, based upon factors such as size of the Premises and intensity of use ofsuch utilities by Tenant such that Tenant shall pay the portion of such charges reasonablyconsistent with Tenant’s use of such utilities and similar services. Tenant shall also payTenant’s Share of any assessments, charges and fees included within any tax bill for the Lot onwhich the Premises are situated, including without limitation, entitlement fees, allocation unitfees and sewer use fees. Notwithstanding anything to the contrary in this Section 7, if Tenantdisputes Landlord’s determination of Tenant’s Share of Utility Expenses, Landlord shall, atTenant’s sole cost and expense, have the right, in its sole and absolute discretion, to perform allwork necessary to separately meter (with PG&E meters if such utility is gas or electric) theutility usage of the Premises.     **7.2 Common Area Utility Costs:**Tenant shall pay to Landlord Tenant’s Share of any Common Areautility fees, charges and expenses (collectively, “Common Area Utility Costs”). Tenant shall payto Landlord one-twelfth (1/12th) of the estimated amount of Tenant’s Share of the Common AreaUtility Costs on the Commencement Date and thereafter on the first (1st) day of each monththroughout the Term. Any reconciliation thereof shall be substantially in the same manner as setforth in Section 6.4 above. Tenant acknowledges and agrees that Tenant’s Share of Common AreaUtility Costs may increase or decrease in the event of the recordation of a parcel or subdivisionmap with respect to the Park or a portion of the Park.     **7.3 Miscellaneous:**Tenant acknowledges that the Premises may become subject to the rationingof utility services or restrictions on utility use as required by a public utility company,governmental agency or other similar entity having jurisdiction thereof. Tenant agrees that itstenancy and occupancy hereunder shall be subject to such rationing restrictions as may be imposedupon Landlord, Tenant, the Premises, or other portions of the Project, and Tenant shall in no eventbe excused or relieved from any covenant or obligation to be kept or performed by Tenant by reasonof any such rationing or restrictions.**8. Late Charges**The sums and charges set forth in this Section 8 shall be “Additional Rent”. Tenant acknowledgesthat late payment (the second (2nd) day of each month or any time thereafter) of Rent and all othersums due hereunder, will cause Landlord to incur costs not contemplated by this Lease. Such costsmay include, without limitation, processing and accounting charges, and late charges that may beimposed on Landlord by the terms of any note secured by any encumbrance against the Premises, andlate charges and penalties due to the late payment of real property taxes on the Premises.Therefore, if any installment of Rent or any other sum payable by Tenant is not received byLandlord when due, Tenant shall promptly pay to Landlord a late charge, as liquidated damages, inan amount equal to ten percent (10%) of such delinquent amount plus interest thereon at ten percent(10%) per annum for every month or portion thereof that such sums remain unpaid. Notwithstandingthe foregoing, Landlord waives the late charge for the first (1st) instance during the Term inwhich Tenant fails to timely pay Rent, and interest shall not commence to accrue until the third(3rd) day following Landlord’s giving to Tenant its notice of default. If Tenantdelivers to Landlord two (2) checks for which there are not sufficient funds, Landlord may requireTenant to replace such check with a cashier’s check for the amount of such check and all othercharges payable hereunder. The parties agree that this late charge and the other chargesreferenced above represent a fair and reasonable estimate of the costs that Landlord will incur byreason of such late payment by Tenant, excluding attorneys’ fees and costs. Acceptance of any latecharge or other charges shall not constitute a waiver by Landlord of Tenant’s default with respectto the delinquent amount, nor prevent Landlord from exercising any of the other rights and remediesavailable to Landlord for any other default of Tenant under this Lease.**9. Use of Premises**     **9.1 Compliance with Laws, Recorded Matters, and Rules and Regulations:**The Premises shall beused solely for the permitted uses specified in the Basic Lease Information and for no other useswithout Landlord’s prior written consent. Landlord’s consent shall not be unreasonablyconditioned, withheld or delayed so long as the proposed change in use (i) does not involve theuse of Hazardous Materials other than as expressly permitted under the provisions of Section 27below, (ii) does not require any additional parking spaces, and (iii) is compatible and consistentwith the other uses then being made in the Project, as reasonably determined by Landlord. The useof the Premises by Tenant and its employees, representatives, agents, invitees, licensees,subtenants, customers or contractors (collectively, “Tenant’s Representatives”) shall be subjectto, and at all times in compliance with, (a) any and all applicable laws, rules, codes, ordinances,statutes, orders and regulations as same exist from time to time throughout the Term (collectively,the “Laws”), including without limitation, the requirements of the Americans with Disabilities Act,a federal law codified at 42 U.S.C. 12101 et seq., including, but not limited to Title III thereof,all regulations and guidelines related thereto and all requirements of Title 24 of the State ofCalifornia (collectively, the “ADA”), (b) any and all instruments, licenses, restrictions,easements or similar instruments, conveyances or encumbrances which are at any time required to bemade by or given by Landlord relating to the initial development of the Project and/or theconstruction, from time to time, of any additional improvements in the Project, including withoutlimitation, any Tenant Improvements (collectively, “Development Documents”), (c) any and alldocuments, easements, covenants, conditions and restrictions, and similar instruments, togetherwith any and all amendments and supplements thereto made, from time to time, each of which has beenor hereafter is recorded in any official or public records with respect to the Premises or anyother portion of the Project (collectively, “Recorded Matters”), and (d) any and all by laws, rulesand regulations set forth in Exhibit C hereto, any other reasonable rules and regulations now orhereafter promulgated by Landlord, and any rules, restrictions and/or regulations imposed by theAssociation or any other applicable owners association or similar entity (collectively, “Rules andRegulations”). Landlord reserves to itself the right, from time to time, (1) to grant, without theconsent of Tenant, such easements, rights and dedications that Landlord deems reasonably necessary,whether in connection with the recordation of a parcel or subdivision map or otherwise; (2) tocause the recordation of parcel or subdivision maps and/or restrictions, so long as such easements,rights, dedications, maps and restrictions, as applicable, do not materially and adverselyinterfere with Tenant’s operations in the Premises; and (3) to create the Association. Tenantagrees to sign promptly any documents reasonably requested by Landlord to effectuate any sucheasements, rights, dedications, maps or restrictions, to acknowledge creation of the Association oras otherwise[ * ] = Certain confidential information contained in this document, marked by brackets, hasbeen omitted and filed separately with the Securities and Exchange Commission pursuant to Rule24b-2 of the Securities Exchange Act of 1934, as amended.
4

 
 reasonably requested by Landlord. Tenant agrees to, and does hereby, assume full and completeresponsibility (x) to ensure that the Premises, including without limitation, the TenantImprovements, are in compliance with all applicable Laws throughout the Term and (y) for thepayment of all costs, fees and expenses associated with any modifications, improvements or otherAlterations to the Premises and/or any other portion of the Project occasioned by the enactment of,or changes to, any Laws arising from Tenant’s particular use of the Premises or Alterations orother improvements made to the Premises regardless of when such Laws became effective. Tenantshall have no right to initiate, submit an application for, or otherwise request, any land useapprovals or entitlements with respect to the Premises or any other portion of the Project. Tenantshall not be responsible for any violation or non-compliance of Laws with regard to the Premises tothe extent such violation or non-compliance of Laws exists prior to the Commencement Date;provided, however, from and after the Commencement Date, Tenant shall be solely responsible for (y)the payment of all costs, fees and expenses associated with any modifications, improvements orother Alterations to the Premises and/or any other portion of the Project occasioned by theenactment of, or changes to, any Laws arising from Tenant’s particular use of the Premises orAlterations made to the Premises regardless of when such Laws became effective and (z) the paymentof capital expenditures as part of Operating Expenses to the extent set forth in Section 6.1.1above.     **9.2 Prohibition on Use:**Tenant shall not use the Premises or permit anything to be done in orabout the Premises nor keep or bring anything therein which will increase the existing rate of oraffect any policy of insurance upon the Building or any of its contents, or cause a cancellation ofany insurance policy. No auctions may be conducted in, on or about any portion of the Premises orthe Project without Landlord’s prior written consent thereto. Tenant shall not do or permitanything to be done in or about the Premises which will obstruct or interfere with the rights ofLandlord or other tenants or occupants of any portion of the Project. The Premises shall not beused for any unlawful purpose. Tenant shall not cause, maintain or permit any private or publicnuisance in, on or about any portion of the Premises or the Project, including, but not limited to,any offensive odors, noises, fumes or vibrations. Tenant shall not damage or deface or otherwisecommit or suffer to be committed any waste in, upon or about the Premises or any other portion ofthe Project. Tenant shall not place or store, nor permit any other person or entity to place orstore, any property, equipment, materials, supplies or personal property outside of the Premises.Tenant shall not permit any animals, including, but not limited to, any household pets, to bebrought or kept in or about the Premises. Tenant shall neither install any radio or televisionantenna, satellite dish, microwave or other device on the roof or exterior walls of the Building orany other portion of the Project nor make any penetrations of or to the roof of the Building.Tenant shall not interfere with radio, telecommunication, or television broadcasting or receptionfrom or in the Building or elsewhere. Tenant shall place no loads upon the floors, walls, orceilings in excess of the maximum designed load permitted by the applicable Uniform Building Codeor which may damage the Building or outside areas within the Project.**10. Alterations; and Surrender of Premises**     **10.1 Alterations:**Tenant shall be permitted to make, at its sole cost and expense,non-structural alterations and additions to the interior of the Premises without obtainingLandlord’s prior written consent, provided said alterations are not part of Tenant’s Wi-Fi Network(defined hereinbelow), do not affect the Building systems and the cost of such alterations does notexceed Fifty Thousand Dollars ($50,000) each job and One Hundred Thousand Dollars ($100,000)cumulatively each calendar year (the “Permitted Improvements”). Tenant, however, shall firstnotify Landlord of such Permitted Improvements so that Landlord may post a Notice ofNon-Responsibility on the Premises. Except for the Permitted Improvements, Tenant shall neitherinstall any signs, fixtures, or improvements, nor make or permit any other alterations or additions(individually, an “Alteration”, and collectively, “Alterations”) to the Premises without the priorwritten consent of Landlord, which consent shall not be unreasonably withheld so long as any suchAlteration does not affect the Building systems, structural integrity or structural components ofthe Premises or Building. If any such Alteration is expressly permitted by Landlord, Tenant shalldeliver at least ten (10) days prior written notice to Landlord, from the date Tenant commencesconstruction, sufficient to enable Landlord to post and record a Notice of Non-Responsibility.Tenant shall obtain all permits or other governmental approvals prior to commencing any work anddeliver a copy of same to Landlord. All Alterations shall be (i) at Tenant’s sole cost and expensein accordance with plans and specifications which have been previously submitted to and approved inwriting by Landlord, and shall be installed by a licensed, insured (and bonded, at Landlord’soption) contractor (reasonably approved by Landlord) in compliance with all applicable Laws,Development Documents, Recorded Matters, and Rules and Regulations and (ii) performed in a good andworkmanlike manner and so as not to obstruct access to any portion of the Project or any businessof Landlord or any other tenant. Landlord’s approval of any plans, specifications or workingdrawings for Tenant’s Alterations shall neither create nor impose any responsibility or liabilityon the part of Landlord for their completeness, design sufficiency, or compliance with any Laws.As Additional Rent, Tenant shall reimburse Landlord, within ten (10) days after demand, for actualand reasonable legal, engineering, architectural, planning and other expenses incurred by Landlordin connection with Tenant’s Alterations, plus Tenant shall pay to Landlord a fee equal to fivepercent (5%) of the total cost of the Alterations. If Tenant makes any Alterations, Tenant shallcarry “Builder’s All Risk” insurance, in an amount approved by Landlord and such other insurance asLandlord may require. All such Alterations shall be insured by Tenant in accordance with Section12 of this Lease immediately upon completion. Tenant shall keep the Premises and the Lot on whichthe Premises are situated free from any liens arising out of any work performed, materialsfurnished or obligations incurred by or on behalf of Tenant. Tenant shall, prior to commencing anyAlterations, (a) cause its contractor(s) and/or major subcontractor(s) to provide insurance asreasonably required by Landlord, and (b) provide such assurances to Landlord, including withoutlimitation, waivers of lien, surety company performance bonds (for projects estimated to cost inexcess of $150,000) as Landlord shall require to assure payment of the costs thereof to protectLandlord and the Project from and against any mechanic’s, materialmen’s or other liens.          **10.1.1 Wi-Fi Network:**Without limiting the generality of the foregoing, in the event Tenantdesires to install wireless intranet, Internet and communications network (“Wi-Fi Network“) in thePremises for the use by Tenant and its employees, then the same shall be subject to the provisionsof this Section 10.1.1 (in addition to the other provisions of this Section 10). In the eventLandlord consents to Tenant’s installation of such Wi-Fi Network, Tenant shall, in accordance withSection 10.2 below, remove the Wi-Fi Network from the Premises prior to the termination of theLease. Tenant shall use the Wi-Fi Network so as not to cause any interference to other tenants inthe Building or to other tenants at the Park or with any other tenant’s communication equipment,and not to damage the Building or Park or interfere with the normal operation of the Building orPark and Tenant hereby agrees to indemnify, defend and hold Landlord harmless from and against anyand all claims, costs, damages, expenses and liabilities (including attorneys’ fees) arising out ofTenant’s failure to comply with the provisions of this Section 10.1.1, except to the extent same iscaused by the gross negligence or willful misconduct of Landlord and which is not covered by theinsurance carried by Tenant under this Lease (or which would not be covered by the insurancerequired to be carried by Tenant under this Lease). Should any interference occur, Tenant shalltake all necessary steps as soon as reasonably possible and no later than three (3) calendar daysfollowing such occurrence to correct such interference. If such interference continues after suchthree (3) day period, Tenant shall immediately cease operating such Wi-Fi Network until suchinterference is corrected or remedied to Landlord’s reasonable satisfaction. Tenant acknowledgesthat Landlord has granted and/or may grant telecommunication rights to other tenants and occupantsof the Building and to telecommunication service providers and in no event shall Landlord be liableto Tenant for any interference of the same with such Wi-Fi Network. Landlord makes norepresentation that the Wi-Fi Network will be able to receive or transmit communication signalswithout interference or disturbance. Tenant shall (i) be solely responsible for any damage causedas a result of the Wi-Fi Network, (ii) promptly pay any tax, license or permit fees chargedpursuant to any laws or regulations in connection with the installation, maintenance or use of theWi-Fi Network and comply with all precautions and safeguards recommended by all governmentalauthorities, and (iii) pay for all necessary repairs, replacements to or maintenance of the Wi-FiNetwork. Should Landlord be required to retain professionals to research any interference issuesthat may arise and to confirm Tenant’s compliance with the terms of this Section 10.11, Landlordshall retain such professionals at commercially reasonable rates, and Tenant shall reimburse[ * ] = Certain confidential information contained in this document, marked by brackets, hasbeen omitted and filed separately with the Securities and Exchange Commission pursuant to Rule24b-2 of the Securities Exchange Act of 1934, as amended.
5

 
 Landlord within thirty (30) days following submission to Tenant of an invoice from Landlord,which costs shall not exceed $1,000 per year (except in the event of a default by Tenanthereunder). This reimbursement obligation is independent of any rights or remedies Landlord mayhave in the event of a breach of default by Tenant under this Lease.     **10.2 Surrender of Premises:**At the expiration of the Term or earlier termination of thisLease, except as provided below in Section 10.2.1, Tenant shall surrender the Premises to Landlord(a) in good condition and repair (damage by acts of God, casualty, and normal wear and tearexcepted), but with all interior walls cleaned, any carpets cleaned, all floors cleaned and waxed,all non-working light bulbs and ballasts replaced and all roll-up doors and plumbing fixtures ingood condition and working order, and (b) in accordance with Section 27 hereof. Normal wear andtear shall not include any damage or deterioration that would have been prevented by propermaintenance by Tenant, or Tenant otherwise performing all of its obligations under this Lease, orany damage or deterioration due to or associated with prolonged hours, non-office use, unusuallyheavy people loads (defined as more than one person per two hundred (200) rentable square feet),unusually heavy utility use, unusually heavy floor loads, or other unusual occupancy factors.Except as set forth below in Section 10.2.1, on or before the expiration or earlier termination ofthis Lease, Tenant shall remove (i) all of Tenant’s Property (defined below) and Tenant’s signagefrom the Premises and other portions of the Project, (ii) any Alterations Landlord may requireTenant, by notice to Tenant given at or about the time of Landlord’s granting of consent to theirinstallation, to remove, and Tenant shall repair any damage caused by all of such removalactivities, at Tenant’s sole expense. “Tenant’s Property” means all equipment, trade fixtures,furnishings, all telephone, data, and other cabling and wiring (including any cabling and wiringassociated with the Wi-Fi Network, if any) installed or caused to be installed by Tenant (includingany cabling and wiring, installed above the ceiling of the Premises or below the floor of thePremises), inventories, goods and personal property of Tenant. Any of Tenant’s Property not soremoved by Tenant as required herein shall be deemed abandoned and may be stored, removed, anddisposed of by Landlord at Tenant’s expense, and Tenant waives all claims against Landlord for anydamages resulting from Landlord’s retention and disposition of such property; provided, however,Tenant shall remain liable to Landlord for all costs incurred in storing and disposing of suchabandoned property of Tenant. Landlord may elect to take responsibility to remove any such wiringor cabling installed above the ceiling or beneath the floors of the Premises, in which case Tenantshall pay Landlord for the actual cost incurred by Landlord therefor, (together with a five percent(5%) supervision/administration fee) within thirty (30) days after being billed for the same. AllAlterations except those which Landlord requires Tenant to remove, shall remain in the Premises asthe property of Landlord. Tenant shall indemnify, defend and hold the Indemnitees (hereafterdefined) harmless from and against any and all Claims (defined below) (x) arising from any delay byTenant in so surrendering the Premises including, without limitation, any Claims made againstLandlord by any succeeding tenant or prospective tenant founded on or resulting from such delay and(y) suffered by Landlord due to lost opportunities to lease any portion of the Premises to any suchsucceeding tenant or prospective tenant.          **10.2.1 Restoration Obligation.**Notwithstanding anything to the contrary in this Section 10,prior to Tenant’s surrender of the Premises, Tenant shall have the obligation to restore the areaof the Premises in which Tenant’s lab shall be located to its original condition at the time ofLease execution, including, but not limited to, restoring smooth surface ceiling tiles and ESDflooring to Building Standard finishes, removal of lab equipment electrical stubbed to thedistribution panel, and demolition of lab partitions; provided, however, Tenant shall not berequired to remove any dedicated heating, ventilating and air conditioning (“HVAC”) unit(s) servingthe lab; rather, Tenant shall have the right to leave the HVAC unit on the roof but shall removeall electrical components related to the HVAC, ductwork, diffusers and any other components relatedto the HVAC and make any necessary repairs to the Premises, to the reasonable satisfaction ofLandlord. Such work shall be at Tenant’s sole cost and expense and shall be performed prior to theexpiration or earlier termination of the Term of the Lease.**11. Repairs and Maintenance**     **11.1 Tenant’s Repairs and Maintenance Obligations:**Except for those portions of the Buildingto be maintained by Landlord, as provided in Sections 11.2 and 11.3 below, Tenant shall, at itssole cost and expense, keep and maintain all parts of the Premises and such portions of theBuilding as are within the exclusive control of Tenant in good, clean and safe condition andrepair, promptly making all necessary repairs and replacements, whether ordinary or extraordinary,with materials and workmanship of the same character, kind and quality as the original thereof, allof the foregoing in accordance with the applicable provisions of Section 10 hereof, and to thereasonable satisfaction of Landlord including, but not limited to, repairing any damage (andreplacing any property so damaged) caused by Tenant or any of Tenant’s Representatives, or due toor associated with prolonged hours, non-office use, unusually heavy people loads (defined as morethan one person per two hundred (200) rentable square feet), unusually heavy utility use, unusuallyheavy floor loads, or other unusual occupancy factors, and restoring the Premises and otherportions of the Project to the condition existing prior to the occurrence of such damage. Withoutlimiting any of the foregoing, Tenant shall be solely responsible for promptly maintaining,repairing and replacing (a) all mechanical systems, heating, ventilation and air conditioning(“HVAC”) systems serving the Premises, (b) all plumbing work and fixtures, (c) electrical wiringsystems, fixtures and equipment exclusively serving the Premises, (d) all interior lighting(including, without limitation, light bulbs and/or ballasts) and exterior lighting exclusivelyserving the Premises or adjacent to the Premises, (e) all glass, windows, window frames, windowcasements, skylights, interior and exterior doors, door frames and door closers, (f) all roll-updoors, ramps and dock equipment, including without limitation, dock bumpers, dock plates, dockseals, dock levelers and dock lights, (g) all tenant signage, (h) lifts for disabled personsserving the Premises, (i) sprinkler systems, fire protection systems and security systems, exceptto the extent maintained by Landlord, and (j) all partitions, fixtures, equipment, interiorpainting, interior walls and floors, and floor coverings of the Premises and every part thereof(including, without limitation, any demising walls contiguous to any portion of the Premises).Tenant shall maintain throughout the Term a current contract with a vendor qualified to repair andmaintain the HVAC systems serving the Premises, which vendor shall be reasonably approved byLandlord. Additionally, Tenant shall be solely responsible for the performance of the regularremoval of trash and debris. Notwithstanding the foregoing, Landlord shall have the right, but notthe obligation, exercisable at any time, to directly contract with an HVAC vendor to perform thepreventive maintenance on the mechanical and/or HVAC equipment, including, without limitation, theright to obtain a semi-annual HVAC condition report, in which event the costs and expensesassociated with such services and/or report shall be part of the definition of Operating Expensesherein. Should Landlord elect to directly contract for such HVAC condition report, then Tenant,upon receipt of such report, shall promptly make all repairs and/or replacements indicated on suchreport. So long as Tenant does not utilize the generator currently located at the Building orrequest its use, Tenant shall have no responsibility for any repairs or maintenance of suchgenerator at the Building.     **11.2 Maintenance by Landlord:**Subject to Tenant’s obligation under Section 6 to reimburseLandlord, in the form of Additional Rent, for Tenant’s Share of the cost and expense of thefollowing described items, Landlord shall repair and maintain the following items: fire protectionservices; the roof and roof coverings (provided that Tenant installs no additional air conditioningor other equipment on the roof that damages the roof coverings, in which event Tenant shall pay allcosts relating to the presence of such additional equipment); any elevator that serves thePremises; the plumbing and mechanical systems serving the Building, including the boiler for theBuilding but excluding the plumbing, mechanical and electrical systems exclusively serving thePremises; any rail spur and rail crossing; exterior painting of the Building; and the parkingareas, pavement, landscaping, sprinkler systems, sidewalks, driveways, curbs, and lighting systemsin the Common Areas. If Landlord elects to perform any repair or restoration work required to beperformed by Tenant, Tenant shall reimburse Landlord upon demand for all costs and expensesincurred by Landlord in connection therewith. Tenant shall promptly report, in writing, toLandlord any defective condition known to it which Landlord is required to repair.     **11.3 Landlord’s Repairs and Maintenance Obligations:**Subject to the provisions of Sections 25and 26, and except for repairs rendered necessary by the intentional or negligent acts or omissionsof Tenant or any of Tenant’s Representatives or[ * ] = Certain confidential information contained in this document, marked by brackets, hasbeen omitted and filed separately with the Securities and Exchange Commission pursuant to Rule24b-2 of the Securities Exchange Act of 1934, as amended.
6

 
 Tenant’s failure to perform its obligations under Section 11.1 above, Landlord shall, atLandlord’s sole cost and expense, keep in good repair the structural portions of the floors,foundations and exterior perimeter walls of the Building (exclusive of glass and exterior doors),and the structural portions of the roof of the Building (excluding the roof membrane).     **11.4 Tenant’s Failure to Perform Repairs and Maintenance Obligations:**If Tenant refuses orneglects to repair and maintain the Premises and the other areas properly as required herein and tothe reasonable satisfaction of Landlord, (i) Landlord may, but without obligation to do so, at anytime make such repairs or maintenance without Landlord having any liability to Tenant for any lossor damage that may accrue to Tenant’s Property or to Tenant’s business by reason thereof, except tothe extent any damage is caused by the willful misconduct or gross negligence of Landlord or itsauthorized agents and representatives and (ii) Tenant shall pay to Landlord, as Additional Rent,Landlord’s costs and expenses incurred therefor. Tenant’s obligations under this Section 11 shallsurvive the expiration of the Term or earlier termination thereof. Tenant hereby waives any rightto repair at the expense of Landlord under any applicable Laws now or hereafter in effect.**12. Insurance**     **12.1 Types of Insurance:**Tenant shall maintain in full force and effect at all times duringthe Term, at Tenant’s sole cost and expense, for the protection of Tenant and Landlord, as theirinterests may appear, policies of insurance issued by carriers reasonably acceptable to Landlordand its lender which afford the following coverages: (i) worker’s compensation and employer’sliability, as required by law; (ii) commercial general liability insurance (occurrence form)providing coverage against any and all claims for bodily injury and property damage occurring in,on or about the Premises arising out of Tenant’s and Tenant’s Representatives’ use or occupancy ofthe Premises and such insurance shall (a) include coverage for blanket contractual liability, firedamage, premises, personal injury, completed operations and products liability, and (b) have acombined single limit of not less than Two Million Dollars ($2,000,000) per occurrence with a ThreeMillion Dollar ($3,000,000) aggregate limit and excess/umbrella insurance in the amount of ThreeMillion Dollars ($3,000,000) (if Tenant has other locations which it owns or leases, the policyshall include an aggregate limit per location endorsement); (iii) comprehensive automobileliability insurance with a combined single limit of at least $1,000,000 per occurrence for claimsarising out of any company owned automobiles; (iv) “all risk” or “special purpose” propertyinsurance, including without limitation, sprinkler leakage, covering damage to or loss of any ofTenant’s Property and the Tenant Improvements (including the Cubicles and Equipment (as defined inSection 35)) located in, on or about the Premises, and in addition, coverage for flood and businessinterruption of Tenant, together with, if the property of any of Tenant’s invitees, vendors orcustomers is to be kept in the Premises, warehouser’s legal liability or bailee customersinsurance for the full replacement cost of the property belonging to such parties and located inthe Premises. Such insurance shall be written on a replacement cost basis (without deduction fordepreciation) in an amount equal to one hundred percent (100%) of the full replacement value of theaggregate of the items referred to in this clause (iv); and (v) such other insurance or higherlimits of liability as is then customarily required for similar types of buildings within thegeneral vicinity of the Project or as may be reasonably required by any of Landlord’s lenders.     **12.2 Insurance Policies:**Insurance required to be maintained by Tenant shall be written bycompanies (i) licensed to do business in the State of California, (ii) domiciled in the UnitedStates of America, and (iii) having a “General Policyholders Rating” of at least A:X (or suchhigher rating as may be required by a lender having a lien on the Premises) as set forth in themost current issue of “A.M. Best’s Rating Guides.” Any deductible amounts under any of theinsurance policies required hereunder shall not exceed Five Thousand Dollars ($5,000). Tenantshall deliver to Landlord certificates of insurance and true and complete copies of any and allendorsements required herein for all insurance required to be maintained by Tenant hereunder at thetime of execution of this Lease by Tenant. Tenant shall, at least fifteen (15) days prior toexpiration of each policy, furnish Landlord with certificates of renewal or “binders” thereof.Each certificate shall expressly provide that such policies shall not be cancelable or otherwisesubject to material modification except after thirty (30) days prior written notice to the partiesnamed as additional insureds as required in this Lease (except for cancellation for nonpayment ofpremium, in which event cancellation shall not take effect until at least ten (10) days’ notice hasbeen given to Landlord). Tenant shall have the right to provide insurance coverage which it isobligated to carry pursuant to the terms of this Lease under a blanket insurance policy, providedsuch blanket policy expressly affords coverage for the Premises and Landlord as required by thisLease.     **12.3 Additional Insureds and Coverage:**Each of Landlord, Landlord’s property managementcompany or agent, and Landlord’s lender(s) having a lien against the Premises or any other portionof the Project shall be named as additional insureds or loss payees (as applicable) under all ofthe policies required in Section 12.1(ii) and, with respect to the Tenant Improvements, in Section12.1(iv) hereof. All such policies shall provide for severability of interest. All insurance tobe maintained by Tenant shall, except for workers’ compensation and employer’s liability insurance,be primary, without right of contribution from insurance maintained by Landlord. Anyumbrella/excess liability policy (which shall be in “following form”) shall provide that if theunderlying aggregate is exhausted, the excess coverage will drop down as primary insurance. Thelimits of insurance maintained by Tenant shall not limit Tenant’s liability under this Lease. Itis the parties’ intention that the insurance to be procured and maintained by Tenant as requiredherein shall provide coverage for any and all damage or injury arising from or related to Tenant’soperations of its business and/or Tenant’s or Tenant’s Representatives’ use of the Premises and anyof the areas within the Project. Notwithstanding anything to the contrary contained herein, to theextent Landlord’s cost of maintaining insurance with respect to the Building and/or any otherbuildings within the Project is increased as a result of Tenant’s acts, omissions, Alterations,improvements, use or occupancy of the Premises, Tenant shall pay one hundred percent (100%) of, andfor, each such increase as Additional Rent.     **12.4 Failure of Tenant to Purchase and Maintain Insurance:**If Tenant fails to obtain andmaintain the insurance required herein throughout the Term, Landlord may, but without obligation todo so, purchase the necessary insurance and pay the premiums therefor. If Landlord so elects topurchase such insurance, Tenant shall promptly pay to Landlord as Additional Rent, the amount sopaid by Landlord, upon Landlord’s demand therefor. In addition, Landlord may recover from Tenantand Tenant agrees to pay, as Additional Rent, any and all Claims which Landlord may incur due toTenant’s failure to obtain and maintain such insurance.     **12.5 Waiver of Subrogation:**Landlord and Tenant mutually waive their respective rights ofrecovery against each other for any loss of, or damage to, either party’s property to the extentthat such loss or damage is insured by an insurance policy required to be in effect at the time ofsuch loss or damage. Each party shall obtain any special endorsements, if required by its insurer,whereby the insurer waives its rights of subrogation against the other party. This provision isintended to waive fully, and for the benefit of the parties hereto, any rights and/or claims whichmight give rise to a right of subrogation in favor of any insurance carrier.     **12.6 Landlord’s Insurance:**Landlord shall maintain in full force and effect during the Termof this Lease, subject to reimbursement as provided in Section 6, policies of insurance whichafford such coverages as are commercially reasonable and as is consistent with other properties inLandlord’s or Landlord’s affiliates’ portfolio. Notwithstanding the foregoing, Landlord shallobtain and keep in force during the Term of this Lease, as an item of Operating Expenses, a policyor policies in the name of Landlord, with loss payable to Landlord and to the holders of anymortgages, deeds of trust or ground leases on the Premises (“Lender(s)”), (i) on an “all risk” or“special form” basis, insuring loss or damage to the Building, including all improvements, fixtures(other than trade fixtures) and permanent additions (ii) insuring loss or damage to the TenantImprovements (but not any of Tenant’s Personal Property (as defined in Exhibit B) or theNitrogen Tank) caused by earthquake. Except as set forth above with respect to earthquake coveragefor the Tenant Improvements, all alterations, additions and improvements made to the Premises byTenant (including the Tenant Improvements and the Nitrogen Tank) shall be insured by Tenant ratherthan by Landlord. Subject to the foregoing, the amount of the “all risk” or “special[ * ] = Certain confidential information contained in this document, marked by brackets, hasbeen omitted and filed separately with the Securities and Exchange Commission pursuant to Rule24b-2 of the Securities Exchange Act of 1934, as amended.
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 form” insurance procured by Landlord shall be equal to at least ninety percent (90%) of thefull replacement cost of the Building (excluding the cost of excavation and installation offootings), including all improvements and permanent additions as the same shall exist from time totime, or the amount required by Lenders. At Landlord’s option, Landlord shall insure against allrisks of direct physical loss or damage to the Building (including, without limitation, the perilsof flood and earthquake), including coverage for any additional costs resulting from debris removaland reasonable amounts of coverage for the enforcement of any ordinance or law regulating thereconstruction or replacement of any undamaged sections of the Building required to be demolishedor removed by reason of the enforcement of any building, zoning, safety or land use laws as theresult of a covered cause of loss. If any such insurance coverage procured by Landlord has adeductible clause, the deductible shall not exceed reasonable amounts and as is then consistentwith Landlord’s or its affiliates’ portfolio, and in the event of any casualty, the amount of suchdeductible shall be an item of Operating Expenses as so limited. Notwithstanding anything to thecontrary contained herein, to the extent the cost of maintaining insurance with respect to theBuilding is increased as a result of Tenant’s acts, omissions, alterations, improvements(including, without limitation, the Tenant Improvements), use or occupancy of the Premises, Tenantshall pay one hundred percent (100%) of, and for, such increase(s) as Additional Rent.**13. Limitation of Liability and Indemnity**Except to the extent of Claims (defined below) resulting from the gross negligence or willfulmisconduct of Landlord or its authorized representatives, Tenant agrees to protect, defend (withcounsel reasonably acceptable to Landlord) and hold Landlord and Landlord’s lenders, partners,members, property management company (if other than Landlord), agents, directors, officers,employees, representatives, contractors, successors and assigns and each of their respectivepartners, members, directors, officers, employees, representatives, agents, contractors, heirs,successors and assigns (collectively, the “Indemnitees”) harmless and indemnify the Indemniteesfrom and against all liabilities, damages, demands, penalties, costs, claims, losses, judgments,charges and expenses (including reasonable attorneys’ fees, costs of court and expenses necessaryin the prosecution or defense of any litigation including the enforcement of this provision)(collectively, “Claims”) arising from or in any way related to, directly or indirectly, (i)Tenant’s or Tenant’s Representatives’ use of the Premises and other portions of the Project, (ii)the conduct of Tenant’s business, (iii) from any activity, work or thing done, permitted orsuffered by Tenant in or about the Premises, and/or (iv) Tenant’s failure to perform any covenantor obligation of Tenant under this Lease. Tenant agrees that the obligations of Tenant hereinshall survive the expiration or earlier termination of this Lease.Except to the extent of Claims resulting from the gross negligence or willful misconduct ofLandlord or its authorized representatives, to the fullest extent permitted by law, Tenant agreesthat neither Landlord nor any of the Indemnitees shall at any time or to any extent whatsoever beliable, responsible or in any way accountable for any loss, liability, injury, death or damage topersons or property which at any time may be suffered or sustained by Tenant or by any person(s)whomsoever who may at any time be using, occupying or visiting the Premises or any other portion ofthe Project, including, but not limited to, any acts, errors or omissions of any other tenants oroccupants of the Project. Tenant shall not, in any event or circumstance, be permitted to offsetor otherwise credit against any payments of Rent required herein for matters for which Landlord maybe liable hereunder.**14. Assignment and Subleasing**     **14.1 Prohibition:**Except in connection with a Transfer (defined below) to an Affiliate,Tenant shall not, without the prior written consent of Landlord, assign, mortgage, hypothecate,encumber, grant any license or concession, pledge or otherwise transfer this Lease or any interestherein, permit any assignment or other transfer of this Lease by operation of law, sublet thePremises or any part thereof, or permit the use of the Premises by any persons other than Tenantand Tenant’s Representatives (collectively, “Transfers” and any entity to whom any Transfer is madeor sought to be made is sometimes referred to as a “Transferee”). No consent to any Transfer shallconstitute a waiver of the provisions of this Section 14, and all subsequent Transfers may be madeonly with the prior written consent of Landlord, which consent shall not be unreasonably withheld,conditioned or delayed, but which consent shall be subject to the provisions of this Section 14.     **14.2 Request for Consent:**If Tenant seeks to make a Transfer, Tenant shall notify Landlord,in writing (“Tenant’s Notice”), and deliver to Landlord at least thirty (30) days prior to theproposed commencement date of the Transfer (“Proposed Effective Date”) the following: (i) adescription of the portion of the Premises to be transferred (the “Subject Space”); (ii) all of theterms of the proposed Transfer, including without limitation, the Proposed Effective Date, the nameand address of the proposed Transferee, and a copy of the existing or proposed assignment, subleaseor other agreement governing the proposed Transfer; (iii) current financial statements of theproposed Transferee certified by an officer, member, partner or owner thereof, and auditedfinancial statements for the previous three (3) most recent consecutive fiscal years if available;and (iv) such other information as Landlord may then reasonably require. Within twenty (20) daysafter Landlord’s receipt of the Tenant’s Notice (the “Landlord Response Period”) Landlord shallnotify Tenant, in writing, of its determination with respect to such requested proposed Transferand Landlord’s election as set forth in Section 14.5. If Landlord does not elect to recapturepursuant to Section 14.5 and Landlord does consent to the requested proposed Transfer, Tenant maythereafter assign its interests in and to this Lease or sublease all or a portion of the Premisesto the same party and on the same terms as set forth in the Tenant’s Notice.     **14.3 Criteria for Consent:**Tenant agrees that, among other circumstances for which Landlordcould reasonably withhold consent to a proposed Transfer, it shall be reasonable for Landlord towithhold its consent where (a) Tenant is in default of its obligations under this Lease beyondapplicable notice and cure periods or at any time during the Term of this Lease Tenant has been inChronic Default, (b) the use to be made of the Premises by the proposed Transferee is prohibited,or differs from the uses permitted, under this Lease, (c) the proposed Transferee or its businessis subject to compliance with additional requirements of the ADA beyond those requirements whichare applicable to Tenant, (d) the proposed Transferee does not intend to occupy the Premises, (e)Landlord reasonably disapproves of the proposed Transferee’s business operating ability or history,reputation or creditworthiness or the character of the business to be conducted at the Premises,(f) the proposed Transferee is a governmental agency or unit or an existing tenant in the Project,(g) the proposed Transfer would cause Landlord to violate another agreement or obligation to whichLandlord is a party or otherwise subject, (h) either the proposed Transferee, or any person orentity which directly or indirectly, controls, is controlled by, or is under common control with,the proposed Transferee: (1) is negotiating with Landlord to lease space in the Building at suchtime or (2) has negotiated with Landlord during the four (4) month period immediately preceding theTenant’s Notice, (i) the rent proposed to be charged by Tenant to the proposed Transferee duringthe term of such Transfer, calculated using a present value analysis, is less than seventy percent(70%) of the rent then being quoted by Landlord, at the proposed time of such Transfer, forcomparable space in the Building or any other Building in the Project for a comparable term,calculated using a present value system, or (j) the proposed Transferee will use, store or handleHazardous Materials (defined below) of a type, nature or quantity not then being used by Tenant.     **14.4 Effectiveness of Transfer and Continuing Obligations:**Prior to the date on which anyTransfer approved by Landlord becomes effective, Tenant shall deliver to Landlord (i) a counterpartof the fully executed Transfer document, (ii) an executed Hazardous Materials DisclosureCertificate substantially in the form of Exhibit E hereto (the “Transferee HazMatCertificate”), and (iii) Landlord’s standard form of Consent to Assignment or Consent to Sublease,as applicable (provided, Landlord shall make reasonable modifications to such standard forms solong as all other conditions of Landlord’s consent to a Transfer are satisfied), executed by Tenantand the Transferee in which each of Tenant and the Transferee confirms its obligations under thisLease. Failure or refusal of a[ * ] = Certain confidential information contained in this document, marked by brackets, hasbeen omitted and filed separately with the Securities and Exchange Commission pursuant to Rule24b-2 of the Securities Exchange Act of 1934, as amended.
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 Transferee to execute any such consent instrument shall not release or discharge theTransferee from its obligation to do so or from any liability as provided herein. The voluntary,involuntary or other surrender of this Lease by Tenant, or a mutual cancellation by Landlord andTenant, shall not work a merger, and any such surrender or cancellation shall, at the option ofLandlord, either terminate all or any existing subleases or operate as an assignment to Landlord ofany or all of such subleases. Each approved assignee shall assume and be deemed to assume thisLease and shall be and remain liable jointly and severally with Tenant for payment of Rent and forthe due performance of, and compliance with all the terms, covenants, conditions and agreementsherein contained on Tenant’s part to be performed or complied with, for the Term of this Lease.Each approved subtenant shall confirm its understanding that its sublease is subordinate to thisLease. No Transfer shall affect the continuing primary liability of Tenant (which, followingassignment, shall be joint and several with the assignee) under this Lease whether occurring beforeor after such Transfer, and Tenant shall not be released from performing any of the terms,covenants and conditions of this Lease. An assignee of Tenant shall become directly liable toLandlord for all obligations of Tenant hereunder. The acceptance of any Rent by Landlord from anyother person (whether or not such person is an occupant of the Premises) shall not be deemed to bea waiver by Landlord of any provision of this Lease or to be a consent to any Transfer. Forpurposes hereof, if Tenant is a business entity other than a public company traded on a nationallyrecognized stock exchange, direct or indirect transfer of fifty percent (50%) or more of theownership interest of the entity (whether in a single transaction or in the aggregate through morethan one transaction) shall be deemed a Transfer and shall be subject to this Section 14. Any andall options, rights of refusal, improvement allowances and other similar rights granted to Tenantin this Lease, if any, shall not be assignable by Tenant (except to an Affiliate) unless expresslyauthorized in writing by Landlord. Any Transfer made without Landlord’s prior written consent,shall, at Landlord’s option, be null, void and of no effect, and shall, at Landlord’s option,constitute a material default by Tenant of this Lease. As Additional Rent, Tenant shall promptly(a) pay to Landlord each time it requests a Transfer (except to an Affiliate), a fee in the amountof one thousand dollars ($1,000) and (b) reimburse Landlord for reasonable and actual legal andother expenses incurred by Landlord in connection with any actual or proposed Transfer.     **14.5 Recapture:**If the Transfer (i) by itself or taken together with then existing or pendingTransfers covers or totals, as the case may be, more than fifty percent (50%) of the rentablesquare feet of the Premises, or (ii) is for a term which by itself or taken together with thenexisting or pending Transfers is greater than seventy-five percent (75%) of the period thenremaining in the Term of this Lease as of the time of the Proposed Effective Date, then Landlordshall have the right, to be exercised by giving written notice to Tenant, to recapture the SubjectSpace described in the Tenant’s Notice. If such recapture notice is given, it shall serve toterminate this Lease with respect to the proposed Subject Space, or, if the proposed Subject Spacecovers all the Premises, it shall serve to terminate the entire Term of this Lease, in either case,as of the Proposed Effective Date. If this Lease is terminated with respect to less than theentire Premises, Rent shall be adjusted on the basis of the proportion of rentable square feetretained by Tenant to the rentable square feet originally demised and this Lease as so amendedshall continue thereafter in full force and effect.     **14.6 Transfer Premium:**If Landlord consents to a Transfer, as a condition thereto, Tenantshall pay to Landlord monthly, as Additional Rent, at the same time as the monthly installments ofRent are payable hereunder, fifty percent (50%) of any Transfer Premium. The term “TransferPremium” shall mean all rent, additional rent and other consideration received by Tenant from suchTransferee, after deducting all commercially reasonable attorneys’ fees, brokerage commissions andtenant improvement costs incurred by Tenant in connection with such Transfer, which eitherinitially or over the term of the Transfer exceeds the Rent or pro rata portion of the Rent, as thecase may be, for the Subject Space.     **14.7 Waiver:**Notwithstanding any Transfer, or any indulgences, waivers or extensions of timegranted by Landlord to any Transferee, or failure by Landlord to take action against anyTransferee, Tenant agrees that Landlord may, at its option, proceed against Tenant without havingtaken action against or joined such Transferee, except that Tenant shall have the benefit of anyindulgences, waivers and extensions of time granted to any such Transferee.     **14.8 Affiliated Companies/Restructuring of Business Organization:**The assignment orsubletting by Tenant of all or any portion of this Lease or the Premises to (i) a parent orsubsidiary of Tenant, or (ii) any person or entity which controls, is controlled by or under thecommon control with Tenant, or (iii) any entity which purchases all or substantially all of theassets of Tenant or Tenant’s parent corporation, or (iv) any entity into which Tenant or Tenant’sparent corporation is merged or consolidated (all such persons or entities described in clauses (i)(ii), (iii) and (iv) being sometimes herein referred to as “Affiliates”) shall not be deemed aTransfer under the Section 14 (hence, the aforesaid events shall not be subject to obtainingLandlord’s prior consent; Landlord shall not have any right to receive any Transfer Premium inconnection therewith; and Landlord shall not have the recapture rights described in Section 14.5above), provided in all instances that;          **14.8.1**any such Affiliate was not formed as a subterfuge to avoid the obligations of thisSection 14;          **14.8.2**Tenant shall give Landlord prior written notice of any such assignment or sublease toan Affiliate (provided, if Tenant is prohibited by law from giving Landlord prior written notice,then Tenant shall provide written notice to Landlord within ten (10) days following such assignmentor sublease);          **14.8.3**the successor Tenant has as of the effective date of any such assignment or sublease atangible net worth and net assets, in the aggregate, computed in accordance with generally acceptedaccounting principles (but excluding goodwill as an asset), which is sufficient to meet theobligations of Tenant under this Lease, as reasonably determined by Landlord;          **14.8.4**any such assignment or sublease shall be subject to all of the terms and provisions ofthis Lease, and each assignee (i.e. any such Affiliate), other than in the case of an Affiliateresulting from a merger or consolidation as described in Section 14.8(iv) above, shall assume, in awritten document reasonably satisfactory to Landlord and delivered to Landlord upon or prior to theeffective date of such assignment, all the obligations of Tenant under this Lease (and eachsubtenant shall acknowledge and agree that any such sublease is subordinate to the terms of thisLease); and          **14.8.5**Tenant (except in the case of an Affiliate resulting from the acquisition of all orsubstantially all of the assets of Tenant described in Section 14.8(iii) or from a merger orconsolidation as described in Section 14.8(iv) above) and any guarantor shall remain fully liablefor all obligations to be performed by Tenant under this Lease.**15. Subordination**To the fullest extent permitted by law, this Lease, the rights of Tenant under this Lease andTenant’s leasehold interest shall be subject and subordinate at all times to: (i) all groundleases or underlying leases which may now exist or hereafter be executed affecting the Building,the Lot, or any other portion of the Project, and (ii) the lien of any mortgage or deed of trustwhich may now or hereafter exist for which the Building, the Lot, ground leases or underlyingleases, any other portion of the Project or Landlord’s interest or estate therein is specified assecurity. Notwithstanding the foregoing, Landlord or any such ground lessor, mortgagee, or anybeneficiary (any such ground lessor, mortgagee or beneficiary referred to herein as a “Holder”)shall have the right to require this Lease be superior to any such ground leases or underlyingleases or any such liens, mortgage or deed of trust. If any ground lease or underlying leaseterminates for any reason or any mortgage or deed of trust is foreclosed or a conveyance in lieu offoreclosure is made for any reason, Tenant shall attorn to and become the Tenant of the successorin interest to Landlord, provided such successor in interest agrees that it will not disturbTenant’s use, occupancy or quiet enjoyment of the Premises if Tenant is not in material defaultbeyond any applicable[ * ] = Certain confidential information contained in this document, marked by brackets, hasbeen omitted and filed separately with the Securities and Exchange Commission pursuant to Rule24b-2 of the Securities Exchange Act of 1934, as amended.
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cure period under this Lease. The successor in interest to Landlord following foreclosure, sale ordeed in lieu thereof shall not be: (a) liable for any act or omission of any prior lessor or withrespect to events occurring prior to acquisition of ownership; (b) subject to any offsets ordefenses which Tenant might have against any prior lessor; (c) bound by prepayment of more than one(1) month’s Rent; or (d) liable to Tenant for any Security Deposit not actually received by suchsuccessor in interest to the extent any portion of such Security Deposit has not already beenforfeited by, or refunded to, Tenant. Landlord shall be liable to Tenant for all or any portion ofthe Security Deposit not forfeited by, or refunded to Tenant, until and unless Landlord transferssuch Security Deposit to the successor in interest. Tenant covenants and agrees to execute (andacknowledge if required by Landlord, any lender or ground lessor) and deliver, within five (5) daysof a written demand or request by Landlord and in the form reasonably requested by Landlord and/ora Holder, any additional documents evidencing the priority or subordination of this Lease withrespect to any such ground leases or underlying leases or the lien of any such mortgage or deed oftrust.Tenant waives the provisions of any current or future statute, rule or law which may give orpurport to give Tenant any right or election to terminate or otherwise adversely affect this Leaseand the obligations of the Tenant hereunder in the event of any foreclosure proceeding or sale.Tenant hereby acknowledges that as of the date of execution of this Lease, there is a deed of trustencumbering Landlord’s interest in the Park in favor of Redwood Capital Finance Company, LLC, aDelaware limited liability company (the “Current Lender”). Tenant shall within ten (10) daysfollowing a written request made by Landlord at any time, execute, notarize and deliver to Landlorda subordination, non-disturbance and attornment agreement (i) in the form attached to this Lease asExhibit H and incorporated herein by this reference (the “SNDA”) or (ii) in such other formas may then be reasonably required by the Current Lender or other current or future Holder.Landlord shall endeavor to cause the Current Lender and any other current or future Holder toexecute, notarize and deliver to Tenant the SNDA or such other form of subordination,non-disturbance and attornment agreement, as applicable, but Landlord shall not be in default underthis Lease and shall have no liability to Tenant whatsoever if Landlord is unable to obtain anddeliver to Tenant the SNDA or such other form of subordination, non-disturbance and attornmentagreement executed by the Current Lender or other current or future Holder, as applicable.**16. Right of Entry**Landlord and its agents shall have the right to enter the Premises at all reasonable times, uponreasonable prior notice using commercially reasonable efforts to provide such notice not less thantwenty four (24) hours in advance, for purposes of inspection, exhibition, posting of notices,investigation, replacements, repair, maintenance and alteration. It is further agreed (except inthe event of an emergency in which case no notice shall be required) that Landlord shall have theright to use any and all means Landlord deems necessary to enter the Premises in an emergency.Landlord shall have the right to place (i) “for rent” or “for lease” signs (during the last eight(8) months of the Term) on the outside of the Premises, the Building and in the Common Areas, and(ii) “for sale” signs on the outside of the Building and in the Common Areas. Tenant hereby waivesany Claim from damages or for any injury or inconvenience to or interference with Tenant’sbusiness, or any other loss occasioned thereby except for any Claim for any of the foregoingarising out of the gross negligence or willful misconduct of Landlord or its authorizedrepresentatives.**17. Estoppel Certificate**Each party (“Responding Party”) shall execute (and acknowledge if required by any lender or groundlessor) and deliver to the other party upon its request (the “Requesting Party”), within ten (10)days after such request, a statement in writing certifying that this Lease is unmodified and infull force and effect (or, if modified, stating the nature of such modification), the date to whichthe Rent and other charges are paid in advance, if any, acknowledging that there are not, to theResponding Party’s knowledge, any uncured defaults on the part of the Requesting Party hereunder orspecifying such defaults as are claimed, and such other matters as may be reasonably required. Anysuch statement may be conclusively relied upon by Landlord and any prospective purchaser orencumbrancer of the Building or other portions of the Project, and by Tenant, its transferees,investors, lenders or other interested parties. Failure to deliver such statement within such timeshall be conclusive upon the Responding Party that (a) this Lease is in full force and effect,without modification except as may be represented by the Requesting Party; (b) there are no uncureddefaults in the Requesting Party’s performance; and (c) not more than one month’s Rent has beenpaid in advance.**18. Tenant’s Default**The occurrence of any one or more of the following events shall, at Landlord’s option, constitute amaterial default by Tenant of the provisions of this Lease:     **18.1**The abandonment of the Premises by Tenant, as abandonment is statutorily defined inCalifornia Civil Code Section 1951.3 or all similar or successor laws;     **18.2**The failure by Tenant to make any payment of Rent, Additional Rent or any other paymentrequired hereunder within three (3) business days after Landlord’s delivery to Tenant of writtennotice that said payment is due or past due; provided, any such written notice shall be in lieu of,and not in addition to, any notice required under California Code of Civil Procedure Sections 1161et. seq. and all similar or successor laws;     **18.3**Except as otherwise provided in Section 19.4 hereof, the failure by Tenant to observe,perform or comply with any of the conditions, covenants or provisions of this Lease (except failureto make any payment of Rent and/or Additional Rent and any other payment or charge requiredhereunder) and such failure is not cured within (i) thirty (30) days of the date on which Landlorddelivers written notice of such failure to Tenant for all failures other than with respect to (a)Hazardous Materials (defined in Section 27 hereof), (b) Tenant making the repairs, maintenance andreplacements required under the provisions of Section 11.1 hereof, or (c) the timely delivery byTenant of a subordination, non-disturbance and attornment agreement (an “SNDA”), a counterpart of afully executed Transfer document and a consent thereto (collectively, the “Transfer Documents”), anestoppel certificate and insurance certificates, (ii) ten (10) days of the date on which Landlorddelivers written notice of such failure to Tenant for all failures in any way related to HazardousMaterials or Tenant failing to timely make the repairs, maintenance or replacements required bySection 11.1, and (iii) the time period, if any, specified in the applicable sections of this Leasewith respect to subordination, assignment and sublease, estoppel certificates and insurance.However, Tenant shall not be in default of its obligations hereunder if such failure (other thanany failure of Tenant to timely and properly make the repairs, maintenance, or replacementsrequired by Section 11.1, or timely deliver an SNDA, the Transfer Documents, an estoppelcertificate or insurance certificates, for which no additional cure period shall be given toTenant) cannot reasonably be cured within such thirty (30) or ten (10) day period, as applicable,and Tenant promptly commences, and thereafter diligently proceeds with same to completion, allactions necessary to cure such failure as soon as is reasonably possible, but in no event shall thecompletion of such cure be later than ninety (90) days after the date on which Landlord delivers toTenant written notice of such failure, unless Landlord, acting reasonably and in good faith,otherwise expressly agrees in writing to a longer period of time based upon the circumstancesrelating to such failure as well as the nature of the failure and the nature of the actionsnecessary to cure such failure. Any such written notice shall be in lieu of, and not in additionto, any notice required under California Code of Civil Procedure Sections 1161, et seq. and allsimilar or successor laws; or[ * ] = Certain confidential information contained in this document, marked by brackets, hasbeen omitted and filed separately with the Securities and Exchange Commission pursuant to Rule24b-2 of the Securities Exchange Act of 1934, as amended.
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     **18.4**The making of a general assignment by Tenant for the benefit of creditors, the filing ofa voluntary petition by Tenant or the filing of an involuntary petition by any of Tenant’screditors seeking the rehabilitation, liquidation, or reorganization of Tenant under any lawrelating to bankruptcy, insolvency or other relief of debtors and, in the case of an involuntaryaction, the failure to remove or discharge the same within sixty (60) days of such filing, theappointment of a receiver or other custodian to take possession of substantially all of Tenant’sassets or this leasehold, Tenant’s insolvency or inability to pay Tenant’s debts or failuregenerally to pay Tenant’s debts when due, any court entering a decree or order directing thewinding up or liquidation of Tenant or of substantially all of Tenant’s assets, Tenant taking anyaction toward the dissolution or winding up of Tenant’s affairs, the cessation or suspension ofTenant’s use of the Premises, or the attachment, execution or other judicial seizure ofsubstantially all of Tenant’s assets or this leasehold.**19. Remedies for Tenant’s Default**     **19.1 Landlord’s Rights:**In the event of Tenant’s material default under this Lease, Landlordmay terminate Tenant’s right to possess the Premises by any lawful means. Following delivery ofwritten notice by Landlord, this Lease shall terminate on the date specified in such notice andTenant shall immediately surrender possession of the Premises to Landlord. In addition, whether ornot this Lease is terminated, Landlord shall have the right to immediately re-enter the Premises,and if Landlord’s right of re entry is exercised following Tenant’s abandonment of the Premises,all of Tenant’s Property left on the Premises or in the Project shall be deemed abandoned. IfLandlord relets the Premises or any portion thereof, Tenant shall immediately be liable to Landlordfor all costs Landlord incurs in reletting the Premises or any part thereof, including, withoutlimitation, broker’s commissions, expenses of cleaning, redecorating, and further improving thePremises and other similar costs (collectively, the “Reletting Costs”). All Reletting Costs shallbe fully chargeable to Tenant and shall not be prorated or otherwise amortized in relation to anynew lease for the Premises or any portion thereof. Reletting may be for a period shorter or longerthan the remaining term of this Lease. In no event shall Tenant be entitled to any excess rentreceived by Landlord. No act by Landlord other than giving written notice to Tenant shallterminate this Lease or Tenant’s right to possess the Premises, including without limitation, actsof maintenance, efforts to relet the Premises or the appointment of a receiver on Landlord’sinitiative to protect Landlord’s interest under this Lease. At all times Landlord shall have theright to remedy any default of Tenant, to maintain or improve the Premises, to cause a receiver tobe appointed to administer the Premises and any new or existing subleases and to add to the Rentpayable hereunder all of Landlord’s reasonable costs in so doing, with interest at the maximum ratepermitted by law from the date of such expenditure.     **19.2 Damages Recoverable:**If Tenant breaches this Lease and abandons the Premises before theend of the Term, or if Landlord terminates Tenant’s right to possession following Tenant’s breachor default under this Lease, then in either such case, Landlord may recover from Tenant all damagessuffered by Landlord as a result of Tenant’s failure to perform its obligations hereunder,including without limitation, the unamortized cost of any Tenant Improvements constructed by or onbehalf of Tenant pursuant to Exhibit B hereto to the extent Landlord has paid for suchimprovements, the unamortized portion of any broker’s or leasing agent’s commission incurred withrespect to the leasing of the Premises to Tenant for the balance of the Term remaining after thedate on which Tenant is in default of its obligations hereunder, and all Reletting Costs, and theworth at the time of the award (computed in accordance with paragraph (3) of Subdivision (a) ofSection 1951.2 of the California Civil Code) of the amount by which the Rent then unpaid hereunderfor the balance of the Lease Term exceeds the amount of such loss of Rent for the same period whichTenant proves could be reasonably avoided by Landlord and in such case, Landlord prior to theaward, may relet the Premises for the purpose of mitigating damages suffered by Landlord because ofTenant’s failure to perform its obligations hereunder; provided, however, that evenif Tenant abandons the Premises following such breach, this Lease shall nevertheless continue infull force and effect for as long as Landlord does not terminate Tenant’s right of possession, anduntil such termination, Landlord shall have the remedy described in Section 1951.4 of theCalifornia Civil Code (Landlord may continue this Lease in effect after Tenant’s breach andabandonment and recover Rent as it becomes due, if Tenant has the right to sublet or assign,subject only to reasonable limitations) and may enforce all its rights and remedies under thisLease, including the right to recover the Rent from Tenant as it becomes due hereunder. The “worthat the time of the award” within the meaning of Subparagraphs (a)(1) and (a)(2) of Section 1951.2of the California Civil Code shall be computed by allowing interest at the rate of ten percent(10%) per annum. Tenant hereby waives for itself and for all those claiming under Tenant its rightto obtain redemption or relief from forfeiture under California Code of Civil Procedure Sections1174 and 1179 (or any successor or substitute statute), or under any other present or future law,in the event judgment for possession enters against Tenant or Landlord takes possession of thePremises following any default of Tenant hereunder.     **19.3 Financial Statements:**In the event of Tenant’s material default of this Lease, and inthe event Tenant is not then a public company whose stock is traded on a nationally recognizedstock exchange, Tenant, within five (5) days after Landlord’s request therefor, shall deliver toLandlord the then current audited financial statements of Tenant (including interim periodsfollowing the end of the last fiscal year for which annual statements are available). If auditedfinancial statements have not been prepared, Tenant shall provide Landlord with unaudited financialstatements (certified by an authorized representative or officer of Tenant) and such otherinformation, the type and form of which are reasonably acceptable to Landlord, which reflect thefinancial condition of Tenant.     **19.4 Chronic Default:**The term “Chronic Default” as used in this Lease shall mean that Tenanthas materially defaulted in the performance of any of its obligations under this Lease beyond anyapplicable notice and cure periods more than four (4) times during the Term of the Lease,regardless of whether or not Tenant cures any such material default. A Chronic Default is notcurable by Tenant. Upon the occurrence of a Chronic Default and at all times thereafter during thebalance of the Term of this Lease, Landlord shall no longer be obligated to provide Tenant writtennotice of default as set forth in Section 18.3 hereof and Tenant shall no longer be entitled to anycure period set forth in this Lease, including without limitation, those cure periods set forth inSection 18.3. Following a Chronic Default, Landlord, in its sole discretion, may elect to providewritten notice of default to Tenant or grant Tenant a period during which it may cure any suchdefault, however, no such delivery of written notice or grant of a cure period by Landlord shall inany way obligate Landlord to provide Tenant any subsequent written notices of default or cureperiods.     **19.5 Rights and Remedies Cumulative:**The foregoing rights and remedies of Landlord are notexclusive; they are cumulative in addition to any rights and remedies now or hereafter existing atlaw, in equity, by statute or otherwise, and to any remedies Landlord may have under bankruptcylaws or laws affecting creditors’ rights generally. In addition to all of the remedies set forthabove, if Tenant materially defaults under this Lease, all options granted to Tenant hereundershall automatically terminate, unless otherwise expressly agreed to in writing by Landlord.**20. Holding Over**If Tenant holds over after the expiration of the Term, with or without the express or impliedconsent of Landlord, such tenancy shall be from month-to-month only, and shall not constitute arenewal hereof or an extension for any further term, and in such case Base Rent shall be payable ata monthly rate equal to one hundred fifty percent (150%) of the Base Rent applicable during thelast rental period of the Term under this Lease for the first sixty (60) days of such holdover andthereafter, at a monthly rate equal to two hundred percent (200%) of the Base Rent applicableduring the last rental period of the Term under this Lease. Such month-to-month tenancy shall besubject to every other term and provision contained herein. Landlord hereby expressly reserves theright to require Tenant to surrender possession of the Premises to Landlord in the conditionrequired herein upon the expiration or earlier termination of this Lease. The provisions of thisSection 20 shall not be deemed to limit or constitute a waiver of any other rights or remedies ofLandlord provided herein or at law. If Tenant fails to surrender the Premises upon the expirationor earlier termination of this Lease, in addition[ * ] = Certain confidential information contained in this document, marked by brackets, hasbeen omitted and filed separately with the Securities and Exchange Commission pursuant to Rule24b-2 of the Securities Exchange Act of 1934, as amended.
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to any other liabilities to Landlord accruing therefrom, Tenant shall protect, defend, indemnifyand hold Landlord harmless from all Claims resulting from such failure, including but not limitedto, any Claims made by any succeeding tenant founded upon such failure to surrender, and any lostprofits to Landlord resulting therefrom.**21. Landlord’s Default**Landlord shall not be considered in default of this Lease unless Landlord fails within a reasonabletime to perform an obligation required to be performed by Landlord hereunder. For purposes hereof,except in cases of an emergency, a reasonable time shall be thirty (30) days after receipt byLandlord of written notice specifying the nature of the obligation Landlord has not performed;provided, however, that if the nature of Landlord’s obligation is such that morethan thirty (30) days, after receipt of written notice, is reasonably necessary for itsperformance, then Landlord shall not be in default of this Lease if performance of such obligationis commenced within such thirty (30) day period and thereafter diligently pursued to completion.In case of emergency, Landlord shall not be considered in default so long as Landlord acts as soonas reasonably practicable.**22. Parking**Tenant may use the number of non-designated and non-exclusive parking spaces specified in the BasicLease Information. Landlord shall exercise reasonable efforts to ensure that such spaces areavailable to Tenant for its use, but Landlord shall not be required to enforce Tenant’s right touse the same. Tenant and Tenant’s Representatives shall not park or permit any parking of vehiclesovernight.**23. Transfer of Landlord’s Interest**Tenant acknowledges that Landlord has the right to transfer all or any portion of its interest inthe Premises, Building, Project and this Lease. Tenant expressly agrees that in the event of anysuch transfer, Landlord shall automatically be entirely released from all liability under thisLease and Tenant agrees to look solely to such transferee for the performance of Landlord’sobligations hereunder after the date of such transfer. Landlord shall use commercially reasonableefforts to cause each such transferee to agree to perform Landlord’s obligations hereunder arisingor accruing after the date of such transfer. A ground lease or similar long term lease byLandlord of the entire Building or Lot, of which the Premises are a part, shall be deemed a salewithin the meaning of this Section 23. Tenant agrees to attorn to such new owner provided such newowner does not disturb Tenant’s use, occupancy or quiet enjoyment of the Premises so long as Tenantis not in material default beyond any applicable cure period under this Lease.**24. Waiver**No delay or omission in the exercise of any right or remedy of either party on any default by theother party shall impair such a right or remedy or be construed as a waiver. The subsequentacceptance of Rent by Landlord after default by Tenant of this Lease shall not be deemed a waiverof such default, other than a waiver of timely payment for the particular Rent payment involved,and shall not prevent Landlord from maintaining an unlawful detainer or other action based on suchdefault. No payment by Tenant or receipt by Landlord of a lesser amount than the monthly Rent andother sums due hereunder shall be deemed to be other than on account of the earliest Rent or othersums due, nor shall any endorsement or statement on any check or accompanying any check or paymentbe deemed an accord and satisfaction; and Landlord may accept such payment without prejudice toLandlord’s right to recover the balance of such Rent or other sum or pursue any other remedyprovided in this Lease. No failure, partial exercise or delay on the part of the Landlord inexercising any right, power or privilege hereunder shall operate as a waiver thereof.**25. Casualty Damage**     **25.1 Casualty:**If the Premises or any part, excluding any of Tenant’s Property, any Wi-FiNetwork, any Tenant Improvements and any Alterations installed by or for the benefit of Tenant(collectively, “Tenant’s FF&E”), shall be damaged or destroyed by fire or other casualty, Tenantshall give immediate written notice thereof to Landlord. Within sixty (60) days after receipt byLandlord of such notice, Landlord shall notify Tenant, in writing, of the following time periodwithin which the necessary repairs can reasonably be made, as estimated by Landlord: (a) withinone hundred eighty (180) days, or (b) in more than one hundred eighty (180) days, from the date ofsuch notice.          **25.1.1 Minor Insured Damage:**If the Premises (other than Tenant’s FF&E) are damaged only tosuch extent that repairs, rebuilding and/or restoration can be reasonably completed within onehundred eighty (180) days, this Lease shall not terminate and, provided that insurance proceeds areavailable and paid to Landlord to fully repair the damage and/or Tenant otherwise voluntarilycontributes any shortfall thereof, Landlord shall repair the Premises to substantially the samecondition that existed prior to the occurrence of such casualty, except Landlord shall not berequired to rebuild, repair, or replace any of Tenant’s FF&E. The Rent payable hereunder shall beabated proportionately from the date and to the extent Tenant vacates the affected portions of thePremises until any and all repairs required herein to be made by Landlord are substantiallycompleted, but such abatement shall (i) only be to the extent of the portion of the Premises whichis actually rendered unusable and unfit for occupancy (it being understood that a portion of thePremises may be unusable even though it has not sustained physical damage because of itsinterdependence upon the damaged portion of the Premises), and (ii) only during the time Tenant isnot actually using same.          **25.1.2 Major Insured Damage:**If the Premises are damaged to such extent that repairs,rebuilding and/or restoration cannot be reasonably completed, as reasonably determined by Landlord,within one hundred eighty (180) days, then either Landlord or Tenant may terminate this Lease bygiving written notice within twenty (20) days after notice from Landlord regarding the time periodof repair. If either party notifies the other of its intention to so terminate this Lease, thenthis Lease shall terminate and the Rent shall be abated from the date of the occurrence of suchdamage, provided Tenant diligently proceeds to and expeditiously vacates the Premises (but, in allevents Tenant must vacate and surrender the Premises to Landlord by no later than twenty (20)business days thereafter or there shall not be any abatement of Rent until Tenant so vacates thePremises). If neither party elects to terminate this Lease, Landlord shall promptly commence anddiligently prosecute to completion the repairs to the Premises, provided insurance proceeds areavailable and paid to Landlord to fully repair the damage or Tenant voluntarily contributes anyshortfall thereof (except that Landlord shall not be required to rebuild, repair, or replace any ofTenant’s FF&E). During the time when Landlord is prosecuting such repairs to substantialcompletion, the Rent payable hereunder shall be abated proportionately from the date and to theextent Tenant actually vacates the affected portions of the Premises until any and all repairsrequired herein to be made by Landlord are substantially completed, but such abatement shall (i)only be to the extent of the portion of the Premises which is actually rendered unusable and unfitfor occupancy (it being understood that a portion of the Premises may be unusable even though ithas not sustained physical damage because of its interdependence upon the damaged portion of thePremises), and (ii) only during the time Tenant is not actually using same.          **25.1.3 Damage Near End of Term:**Notwithstanding anything to the contrary contained in thisLease except for the provisions of Section 25.3 below, if the Premises are substantially damagedduring the last year of then applicable term of this Lease, either Landlord or Tenant may, at theiroption, cancel and terminate this Lease by giving written notice to the other party of its[ * ] = Certain confidential information contained in this document, marked by brackets, hasbeen omitted and filed separately with the Securities and Exchange Commission pursuant to Rule24b-2 of the Securities Exchange Act of 1934, as amended.
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 election to do so within forty-five (45) days after receipt by Landlord of notice from Tenantof the occurrence of such casualty. If either party so elects to terminate this Lease, all rightsof Tenant hereunder shall cease and terminate ten (10) days after Tenant’s receipt or delivery ofsuch notice, as applicable, and Tenant shall immediately vacate the Premises and surrenderpossession thereof to Landlord.     **25.2 Deductible and Uninsured Casualty:**Tenant shall pay to Landlord, as Additional Rent, thedeductible amounts under the insurance policies obtained by Landlord and Tenant under this Lease ifthe proceeds are used to repair the Premises. However, if other portions of the Building are alsodamaged by said casualty and insurance proceeds are payable therefor, then Tenant shall only payits proportionate share of the deductible as reasonably determined by Landlord. If any portion ofthe Premises is damaged and is not fully covered by the aggregate of insurance proceeds received byLandlord and any applicable deductible, and Tenant does not voluntarily contribute any shortfallthereof, then Landlord or Tenant shall have the right to terminate this Lease by delivering writtennotice of termination to the other party within thirty (30) days after the date of notice to Tenantof such event, whereupon all rights of Tenant shall cease and terminate ten (10) days afterTenant’s receipt of such notice, and Tenant shall immediately vacate the Premises and surrenderpossession thereof to Landlord.     **25.3 Tenant’s Fault and Lender’s Rights:**Notwithstanding anything to the contrary containedherein, if the Premises (other than Tenant’s FF&E) or any other portion of the Building is damagedby fire or other casualty due to the acts or omissions of Tenant or any of Tenant’sRepresentatives, (i) the Rent shall only be abated during the repair of such damage to the extentLandlord receives rental loss insurance proceeds therefor, (ii) Tenant will not have any right toterminate this Lease due to the occurrence of such casualty, and (iii) Tenant will be responsiblefor the excess cost and expense of the repair and restoration of the Building (including anydeductible) to the extent not covered by insurance proceeds. Notwithstanding anything to thecontrary contained herein, if the holder of any indebtedness secured by the Premises or any otherportion of the Project requires that the insurance proceeds be applied to such indebtedness, thenLandlord shall have the right to terminate this Lease by delivering written notice of terminationto Tenant within thirty (30) days after the date of notice to Tenant of such event, whereupon allrights of Tenant shall cease and terminate, and Tenant shall immediately vacate the Premises andsurrender possession thereof to Landlord within a reasonable time not to exceed twenty (20)business days.     **25.4 Tenant’s Waiver:**Landlord shall not be liable for any inconvenience or annoyance toTenant, injury to the business of Tenant, loss of use of any part of the Premises by Tenant or lossof Tenant’s Property, resulting in any way from such damage or the repair thereof. With respect toany damage which Landlord is obligated to repair or may elect to repair, Tenant waives all rightsto terminate this Lease or offset any amounts against Rent pursuant to rights accorded Tenant byany law currently existing or hereafter enacted, including without limitation, all rights pursuantto California Civil Code Sections 1932(2.), 1933(4.), 1941 and 1942 and any similar or successorlaws.**26. Condemnation**If twenty five percent (25%) or more of the Premises is condemned by eminent domain, inverselycondemned or sold in lieu of condemnation for any public or quasi public use or purpose(“Condemned”), then Tenant or Landlord may terminate this Lease as of the date when physicalpossession of the Premises is taken and title vests in such condemning authority, and Rent shall beadjusted to the date of termination. Tenant shall not because of such condemnation assert anyclaim against Landlord or the condemning authority for any compensation because of suchcondemnation, and Landlord shall be entitled to receive the entire amount of any award withoutdeduction for any estate of interest or other interest of Tenant; provided, however, the foregoingshall not preclude Tenant, at Tenant’s sole cost and expense, from obtaining any separate award toTenant for loss of, or damage to, Tenant’s Property or for damages for cessation or interruption ofTenant’s business provided such award is separate from Landlord’s award and does not diminish norotherwise impair the award otherwise payable to Landlord. In addition to the foregoing, Tenantshall be entitled to seek compensation for the relocation costs recoverable by Tenant pursuant tothe provisions of California Government Code Section 7262. If neither party elects to terminatethis Lease, Landlord shall, if necessary, promptly proceed to restore the Premises or the Building,as applicable, to substantially the same condition prior to such partial condemnation, allowing forthe reasonable effects of such partial condemnation, and a proportionate allowance shall be made toTenant, as determined by Landlord, for the Rent corresponding to the time during which, and to thepart of the Premises of which, Tenant is deprived on account of such partial condemnation andrestoration. Landlord shall not be required to spend funds for restoration in excess of thecondemnation proceeds received by Landlord.**27. Environmental Matters/Hazardous Materials**     **27.1 Hazardous Materials Disclosure Certificate:**Simultaneously herewith, Tenant hasdelivered to Landlord Tenant’s executed initial Hazardous Materials Disclosure Certificate (the“Initial HazMat Certificate”), a copy of which is attached hereto as Exhibit E. Tenant covenants,represents and warrants to Landlord that the information in the Initial HazMat Certificate is trueand correct and accurately describes the use(s) of Hazardous Materials which will be made and/orused on the Premises by Tenant. Tenant shall deliver to Landlord an executed Hazardous MaterialsDisclosure Certificate (“the “HazMat Certificate”), in substantially the form attached hereto asExhibit E, describing Tenant’s then present use of Hazardous Materials on the Premises, and anyother reasonably necessary documents as requested by Landlord upon the occurrence of either of thefollowing events: (a) immediately upon any material change in the types and/or quantities ofHazardous Materials used or stored in the Premises, or (b) within ten (10) days of written noticeby Landlord at any time during the Term of the Lease.     **27.2 Definition of Hazardous Materials:**“Hazardous Materials” means (a) any hazardous ortoxic wastes, materials or substances, and other pollutants or contaminants, which are or becomeregulated by any Environmental Laws; (b) petroleum, petroleum by products, gasoline, diesel fuel,crude oil or any fraction thereof; (c) asbestos and asbestos containing material, in any form,whether friable or nonfriable; (d) polychlorinated biphenyls; (e) radioactive materials; (f) leadand lead-containing materials; (g) any other material, waste or substance displaying toxic,reactive, ignitable or corrosive characteristics, as all such terms are used in their broadestsense, and are defined or become defined by any Environmental Law (defined below); (h) anymaterials which cause or threatens to cause a nuisance upon or waste to any portion of the Projector any surrounding property; or (i) any materials which pose or threaten to pose a hazard to thehealth and safety of persons on the Premises, any other portion of the Project or any surroundingproperty. For purposes of this Lease, “Hazardous Materials” shall not include nominal amounts ofordinary household cleaners, office supplies and janitorial supplies which are not actionable underany Environmental Laws.     **27.3 Prohibition; Environmental Laws:**Tenant shall not be entitled to use or store anyHazardous Materials on, in, or about any portion of the Premises or Project without, in eachinstance, obtaining Landlord’s prior written consent thereto. If Landlord, in its sole discretion,consents to any such usage or storage, then Tenant shall be permitted to use and/or store onlythose Hazardous Materials and in such quantities (A) that are necessary for Tenant’s business, (B)to the extent disclosed in the most recent HazMat Certificate, and (C) expressly approved byLandlord in writing. In all events such usage and storage must at all times be in full compliancewith any and all applicable local, state and federal environmental, health and/or safety-relatedlaws, statutes, orders, standards, courts’ decisions, ordinances, rules and regulations (asinterpreted by judicial and administrative decisions), decrees, directives, guidelines, permits orpermit conditions, currently existing and as amended, enacted, issued or adopted in the future(collectively, the “Environmental Laws”). Tenant agrees that any changes to the type and/orquantities of Hazardous Materials specified in the most recent HazMat Certificate may beimplemented only with the prior written consent of Landlord, which consent may[ * ] = Certain confidential information contained in this document, marked by brackets, hasbeen omitted and filed separately with the Securities and Exchange Commission pursuant to Rule24b-2 of the Securities Exchange Act of 1934, as amended.
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 be given or withheld in Landlord’s sole discretion. Tenant shall not be entitled norpermitted to install any tanks under, on or about the Premises for the storage of HazardousMaterials without the express written consent of Landlord, which may be given or withheld inLandlord’s sole discretion. Landlord shall have the right at all times during the Term to (i)inspect the Premises, (ii) conduct tests and investigations to determine whether Tenant is incompliance with this Section 27 or to determine if Hazardous Materials are present in, on or aboutthe Project, and (iii) request lists of all Hazardous Materials used, stored or otherwise locatedon, under or about any portion of the Premises and/or the Common Areas. The cost of all suchinspections, tests and investigations (collectively, “Inspections”) shall be borne by Tenant, ifTenant or any of Tenant’s Representatives are directly or indirectly responsible for anycontamination revealed by such Inspections. The aforementioned rights granted herein to Landlordand its representatives shall not create (a) a duty on Landlord’s part to perform Inspections,monitor or otherwise observe the Premises or Tenant’s and Tenant’s Representatives’ activities withrespect to Hazardous Materials, including without limitation, Tenant’s operation, use and anyremediation related thereto, or (b) liability on the part of Landlord and its representatives forTenant’s use, storage, disposal or remediation of Hazardous Materials, it being understood thatTenant shall be solely responsible for all liability in connection therewith.     **27.4 Tenant’s Environmental Obligations:**Tenant shall give to Landlord immediate verbal andfollow up written notice of any spills, releases, discharges, disposals, emissions, migrations,removals or transportation of Hazardous Materials on, under or about any portion of the Premises orin any Common Areas (collectively, a “Release”); provided that Tenant has knowledge of suchevent(s). Tenant, at its sole cost and expense, covenants and warrants to promptly investigate,clean up, remove, restore and otherwise remediate (including, without limitation, preparation ofany feasibility studies or reports and the performance of any and all closures) any Release ofHazardous Materials arising from or related to the acts or omissions of Tenant or Tenant’sRepresentatives such that the affected portions of the Project and any adjacent property arereturned to the condition existing prior to the appearance of such Hazardous Materials. Any suchinvestigation, clean up, removal, restoration and other remediation shall only be performed afterTenant has obtained Landlord’s prior written consent, which consent shall not be unreasonablywithheld so long as such actions would not potentially have a material adverse long-term orshort-term effect on any portion of the Project. Notwithstanding the foregoing, Tenant shall beentitled to respond immediately to an emergency without first obtaining Landlord’s prior writtenconsent. Tenant, at its sole cost and expense, shall conduct and perform, or cause to be conductedand performed, all closures as required by any Environmental Laws or any agencies or othergovernmental authorities having jurisdiction thereof. If Tenant fails to so promptly investigate,clean up, remove, restore, provide closure or otherwise so remediate, Landlord may, but withoutobligation to do so, take any and all steps necessary to rectify the same and Tenant shall promptlyreimburse Landlord, upon written demand, for all costs and expenses to Landlord of performinginvestigation, clean up, removal, restoration, closure and remediation work. All such workundertaken by Tenant, as required herein, shall be performed in such a manner so as to enableLandlord to make full economic use of the Premises and the other portions of the Project after thesatisfactory completion of such work.     **27.5 Environmental Indemnity:**Tenant shall, protect, indemnify, defend (with counselacceptable to Landlord) and hold Landlord and the other Indemnitees harmless from and against anyand all Claims (including, without limitation, diminution in value of any portion of the Premisesor the Project, damages for the loss of or restriction on the use of rentable or usable space, andfrom any adverse impact of Landlord’s marketing of any space within the Project) arising at anytime during or after the Term in connection with or related to, directly or indirectly, the use,presence or Release of Hazardous Materials on, in or about any portion of the Project as a result(directly or indirectly) of the acts or omissions of Tenant or any of Tenant’s Representatives.Neither the written consent of Landlord to the presence, use or storage of Hazardous Materials in,on, under or about any portion of the Project nor the strict compliance by Tenant with allEnvironmental Laws shall excuse Tenant from its obligations of indemnification pursuant hereto.Tenant shall not be relieved of its indemnification obligations under the provisions of thisSection 27.5 due to Landlord’s status as either an “owner” or “operator” under any EnvironmentalLaws.     **27.6 Survival:**Tenant’s obligations and liabilities under this Section 27 shall survive theexpiration or earlier termination of this Lease. In the event Tenant has not received a closurecertificate from the applicable governmental authorities (in form reasonably satisfactory toLandlord) solely with respect to the removal of the nitrogen tank of Tenant and any HazardousMaterials which may have emanated from such tank, then Landlord may require Tenant to hold overpossession of the Premises until such closure certificate is obtained. Any such holdover by Tenantwill be with Landlord’s consent and will not be terminable by Tenant in any event or circumstance.**28. Financial Statements**If Tenant is not a publicly traded corporation, Tenant and any permitted Transferee, for thereliance of Landlord, any lender holding or anticipated to acquire a lien upon any portion of theProject or any prospective purchaser of any portion of the Project, shall deliver to Landlord thethen current audited financial statements of Tenant (including interim periods following the end ofthe last fiscal year for which annual statements are available) within ten (10) days afterLandlord’s request therefor, but not more often than once annually so long as Tenant is not inmaterial default of this Lease. If audited financial statements have not been prepared, Tenant andany permitted Transferee shall provide Landlord with unaudited financial statements (certified byan authorized representative or officer of Tenant) and such other information, the type and form ofwhich are reasonably acceptable to Landlord, which reflect the financial condition of Tenant andany permitted Transferee, as applicable.**29. General Provisions**     **29.1 Time:**Time is of the essence in this Lease and with respect to each and all of itsprovisions in which performance is a factor.     **29.2 Successors and Assigns:**The covenants and conditions herein contained, subject to theprovisions as to assignment, apply to and bind the heirs, successors, executors, administrators andassigns of the parties hereto.     **29.3 Recordation:**Tenant shall not record this Lease or a short form memorandum hereof.     **29.4 Landlord Exculpation:**The liability of Landlord to Tenant for any default by Landlordunder the terms of this Lease shall be limited to the actual interest of Landlord and its presentor future partners or members in the Building, and Tenant agrees to look solely to Landlord’sinterest in the Building for satisfaction of any liability and shall not look to other assets ofLandlord nor seek any recourse against the assets of the individual partners, members, directors,officers, shareholders, agents or employees of Landlord, including without limitation, any propertymanagement company of Landlord (collectively, the “Landlord Parties”). It is the parties’intention that Landlord and the Landlord Parties shall not in any event or circumstance bepersonally liable, in any manner whatsoever, for any judgment or deficiency hereunder or withrespect to this Lease. The liability of Landlord under this Lease is limited to its actual periodof ownership of title to the Building.     **29.5 Severability and Governing Law:**Any provisions of this Lease which shall prove to beinvalid, void or illegal shall in no way affect, impair or invalidate any other provisions hereofand such other provisions shall remain in full force and effect. This Lease shall be enforced,governed by and construed in accordance with the laws of the State of California.[ * ] = Certain confidential information contained in this document, marked by brackets, hasbeen omitted and filed separately with the Securities and Exchange Commission pursuant to Rule24b-2 of the Securities Exchange Act of 1934, as amended.
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     **29.6 Attorneys’ Fees:**In the event any dispute between the parties results in litigation orother proceeding, the prevailing party shall be reimbursed by the party not prevailing therein forall reasonable costs and expenses, including, without limitation, reasonable attorneys’ andexperts’ fees and costs incurred by the prevailing party in connection with such litigation orother proceeding, and any appeal thereof. Such costs, expenses and fees shall be included in andmade a part of any judgment recovered by the prevailing party.     **29.7 Entire Agreement:**It is understood and agreed that there are no oral agreements betweenthe parties hereto affecting this Lease and this Lease (including all exhibits and addenda)supersedes and cancels any and all previous negotiations, arrangements, brochures, agreements andunderstandings, if any, between the parties hereto or displayed by Landlord to Tenant with respectto the subject matter thereof, and none thereof shall be used to interpret or construe this Lease.This Lease and any separate agreement executed by Landlord and Tenant in connection with this Leaseand dated of even date herewith (a) contain all of the terms, covenants, conditions, warranties andagreements of the parties relating in any manner to the rental, use and occupancy of the Premises,and (b) shall be considered to be the only agreement between the parties hereto and theirrepresentatives and agents. This Lease may not be modified, deleted or added to except by awriting signed by the parties hereto. All negotiations and oral agreements have been merged intoand are included herein. There are no other representations or warranties between the parties, andall reliance with respect to representations is based totally upon the representations andagreements contained in this Lease. The parties acknowledge that (i) each party and/or its counselhave reviewed and revised this Lease, and (ii) no rule of construction to the effect that anyambiguities are to be resolved against the drafting party shall be employed in the interpretationor enforcement of this Lease or any amendments or exhibits to this Lease or any document executedand delivered by either party in connection with this Lease.     **29.8 Warranty of Authority:**Each party represents and warrants that (i) each person signingon its behalf is duly and validly authorized to do so on behalf of the entity it purports to sobind, and (ii) if such party is a limited liability company, partnership, corporation or trustee,that such limited liability company, partnership, corporation or trustee has full right andauthority to enter into this Lease and perform all of its obligations hereunder. Tenant herebywarrants that this Lease is legal, valid and binding upon Tenant and enforceable against Tenant inaccordance with its terms.     **29.9 Notices:**All notices, demands, statements or communications (collectively, “Notices”)given or required to be given by either party to the other hereunder shall be in writing, shall besent by United States certified or registered mail, postage prepaid, return receipt requested,delivered by a nationally recognized same-day or overnight courier (e.g. FedEx or UPS) or deliveredpersonally (i) to Tenant at the Tenant’s Address set forth in the Basic Lease Information, or tosuch other place as Tenant may from time to time designate in a Notice to Landlord; or (ii) toLandlord at Landlord’s Address set forth in the Basic Lease Information, or to such other firm orto such other place as Landlord may from time to time designate in a Notice to Tenant. Any Noticewill be deemed given on the date it is mailed as provided in this Section 29.9, upon the first(1st) business day after delivery to a nationally recognized courier, or upon the date personaldelivery is made.     **29.10 Joint and Several; Covenants and Conditions:**If Tenant consists of more than one personor entity, the obligations of all such persons or entities shall be joint and several. Eachprovision to be performed by Tenant hereunder shall be deemed to be both a covenant and acondition.     **29.11 Confidentiality:**Except to the extent that Tenant, as a publicly traded company, isrequired by applicable law to disclose the contents of this Lease, Tenant acknowledges that thecontents of this Lease and any related documents are confidential information, and Tenant shallkeep and maintain such information strictly confidential and shall not disclose such confidentialinformation to any person or entity other than Tenant’s financial, legal and space planningconsultants.     **29.12 Landlord Renovations:**Tenant acknowledges that Landlord may from time to time, atLandlord’s sole option, renovate, improve, develop, alter, or modify (collectively, “Renovations”)portions of the Building, Premises, Common Areas and the Project, including without limitation,systems and equipment, roof, and structural portions of the same; provided Landlord shall utilizecommercially reasonable efforts to minimize the disruption and interference with Tenant’s businessand operations at the Premises. In connection with such Renovations, Landlord may, among otherthings, erect scaffolding or other necessary structures in the Building, limit or eliminate accessto portions of the Project, including portions of the Common Areas, or perform work in theBuilding, which work may create noise, dust or leave debris in the Building. Tenant hereby agreesthat such Renovations and Landlord’s actions in connection with such Renovations shall in no wayconstitute a constructive eviction of Tenant nor entitle Tenant to any abatement of Rent, so longas Landlord shall uses commercially reasonable efforts to minimize the disruption and interferencewith Tenant’s business and operations at the Premises. Except to the extent caused by Landlord’swillful misconduct or gross negligence, Landlord shall have no responsibility, or for any reason beliable to Tenant, for any direct or indirect injury to or interference with Tenant’s businessarising from the Renovations, nor shall Tenant be entitled to any compensation or damages fromLandlord for loss of the use of the whole or any part of the Premises or of Tenant’s Property,Alterations or improvements resulting from the Renovations or Landlord’s actions in connection withsuch Renovations, or for any inconvenience or annoyance occasioned by such Renovations orLandlord’s actions in connection with such Renovations; provided Landlord shall utilizecommercially reasonable efforts to minimize the disruption and interference with Tenant’s businessand operations at the Premises.     **29.13 Waiver of Jury Trial:**The parties hereto shall and they hereby do waive trial by juryin any action, proceeding or counterclaim brought by either of the parties hereto against the otheron any matters whatsoever arising out of or in any way related to this Lease, the relationship ofLandlord and Tenant, Tenant’s use or occupancy of the Premises, Building, Park or Project and/orany claim of injury, loss or damage.     **29.14 Submission of Lease:**Submission of this instrument for examination or signature byTenant does not constitute a reservation of or an option for lease, and it is not effective as alease or otherwise until execution and delivery by both Landlord and Tenant.**30. Signs**All signs and graphics of every kind visible in or from public view shall be subject to (i)Landlord’s prior written approval, not to be unreasonably conditioned, withheld or delayed, and(ii), and in compliance with, all applicable Laws (including, without limitation, the laws of theCity of San Jose), Development Documents, Recorded Matters, Rules and Regulations, and Landlord’ssign criteria (“Sign Criteria”) as same may exist from time to time. Landlord’s Sign Criteria isset forth in Exhibit G hereto. Tenant shall be solely responsible for any costs related toany signs and graphics and shall remove all such signs and graphics prior to the expiration orearlier termination of this Lease. Such installations and removals shall be made in a manner as toavoid damage or defacement of the Premises and all other affected portions of the Project. Tenantshall repair any such damage, including without limitation, discoloration caused by suchinstallation or removal. Landlord shall have the right, at its option, to deduct from the SecurityDeposit such sums as are reasonably necessary to remove such signs and make any repairsnecessitated by such removal. Notwithstanding the foregoing, in no event shall any: (a) neon,flashing or moving sign(s) or (b) sign(s) which are likely to interfere with the visibility of anysign, canopy, advertising matter, or decoration of any kind of any other business or occupant ofthe Building or other portions of the Project be permitted hereunder. Tenant further agrees tomaintain each such sign and graphics, as may be approved, in good condition and repair at alltimes.[ * ] = Certain confidential information contained in this document, marked by brackets, hasbeen omitted and filed separately with the Securities and Exchange Commission pursuant to Rule24b-2 of the Securities Exchange Act of 1934, as amended.
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**31. Mortgagee Protection**Upon any default on the part of Landlord, Tenant will give written Notice by registered orcertified mail to any beneficiary of a deed of trust or mortgagee of a mortgage covering thePremises who has provided Tenant with Notice of their interest together with an address forreceiving Notice, and shall offer such beneficiary or mortgagee a reasonable opportunity to curethe default, including time to obtain possession of the Premises by power of sale or a judicialforeclosure, if such should prove necessary to effect a cure. If such default cannot be curedwithin such time period, then such additional time as may be necessary will be given to suchbeneficiary or mortgagee to effect such cure so long as such beneficiary or mortgagee has commencedthe cure within the original time period and thereafter diligently pursues such cure to completion,in which event this Lease shall not be terminated while such cure is being diligently pursued.Tenant agrees that each lender to whom this Lease has been assigned by Landlord is an express thirdparty beneficiary hereof. Tenant shall not make any prepayment of Rent more than one (1) month inadvance without the prior written consent of each such lender. Tenant waives the collection of anydeposit from each such lender or purchaser at a foreclosure sale unless said lender or purchasershall have actually received and not refunded the deposit. Tenant agrees to make all paymentsunder this Lease to the lender with the most senior encumbrance upon receiving a direction, inwriting, to pay said amounts to such lender. Tenant shall comply with such written direction topay without determining whether an event of default exists under such lender’s loan to Landlord.If, in connection with obtaining financing for the Premises or any other portion of the Project,Landlord’s lender shall request reasonable modification(s) to this Lease as a condition to suchfinancing, Tenant shall not unreasonably withhold, delay or defer its consent thereto, providedsuch modifications do not materially and adversely affect Tenant’s rights or materially increaseTenant’s obligations hereunder, including Tenant’s use, occupancy or quiet enjoyment of thePremises.**32. Warranties of Tenant**Tenant warrants and represents to Landlord, for the express benefit of Landlord, that Tenant hasundertaken a complete and independent evaluation of the risks inherent in the execution of thisLease and the operation of the Premises for the use permitted hereby, and that, based upon saidindependent evaluation, Tenant has elected to enter into this Lease and hereby assumes all riskswith respect thereto, except as expressly otherwise provided in this Lease. Tenant furtherwarrants and represents to Landlord, for the express benefit of Landlord, that in entering intothis Lease, Tenant has not relied upon any statement, fact, promise or representation (whetherexpress or implied, written or oral) not specifically set forth in this Lease and that anystatement, fact, promise or representation (whether express or implied, written or oral) made atany time to Tenant, which is not expressly incorporated herein, is hereby waived by Tenant.**33. Brokerage Commission**Landlord and Tenant each represents and warrants for the benefit of the other that it has had nodealings with any real estate broker, agent or finder in connection with the Premises and/or thenegotiation of this Lease, except for the Broker(s) specified in the Basic Lease Information, andthat it knows of no other real estate broker, agent or finder who is or might be entitled to a realestate brokerage commission or finder’s fee in connection with this Lease or otherwise based uponcontacts between the claimant and Tenant. Each party shall indemnify and hold harmless the otherfrom and against any and all Claims with respect to a fee or commission by any real estate broker,agent or finder in connection with the Premises and this Lease other than the Broker(s) (if any)resulting from the actions of the indemnifying party. Unless expressly agreed to in writing byLandlord and the Broker(s), no real estate brokerage commission or finder’s fee shall be owed to,or otherwise payable to, the Broker(s) for any renewals or other extensions of the initial term ofthis Lease or for any additional space leased by Tenant other than the Premises as same exists asof the Lease Date. Tenant further represents and warrants to Landlord that Tenant will not receive(i) any portion of any brokerage commission or finder’s fee payable to the Broker(s) in connectionwith this Lease, or (ii) any other form of compensation or incentive from the Broker(s) withrespect to this Lease. Landlord shall pay the commission due to Broker consistent with Landlord’scommission agreement with Broker.**34. Quiet Enjoyment**Landlord covenants with Tenant, upon the paying of Rent and observing and keeping the covenants,agreements and conditions of this Lease on its part to be kept, during the periods that Tenant isnot otherwise in default beyond any applicable cure period under this Lease, and subject to therights of any of Landlord’s lenders, (i) that Tenant shall and may peaceably and quietly have,hold, occupy and enjoy the Premises and Common Areas during the Term, and (ii) neither Landlord,nor any successor or assign of Landlord, shall disturb Tenant’s occupancy or enjoyment of thePremises and Common Areas. The foregoing covenant is in lieu of any other covenant express orimplied.**35. Cubicles**Landlord and Tenant acknowledge and agree that, (i) Landlord shall purchase a minimum ofseventy-three (73) cubicles but a maximum of eighty-two (82) cubicles of comparable quality tothose cubicles of Landlord situated in the Building within the Park located at 110 Baytech Drive,and otherwise of a type, and produced by a manufacturer, reasonably satisfactory to Landlord andTenant (“Cubicles”), (ii) the Cubicles shall be configured in the manner described in the FinalSpace Plan (as defined in Exhibit B), (iii) the Cubicles shall be installed by Landlord and shallbe wired for three (3) data lines (CAT – 5), and electrical service, and one (1) chair per Cubicle(together with the Cubicles, the foregoing are collectively, “Cubicles and Equipment”), (iv) thecost of the purchase, transport and installation of the Cubicles and Equipment shall be deductedfrom the Tenant Improvement Allowance, (v) during the Term of this Lease, Landlord shall lease, asowner, to Tenant, as lessee, at no additional cost or expense, all of the Cubicles and Equipment,(vi) such leasing is on an “AS-IS, WITH ALL FAULTS” basis and subject to all of the terms of thisLease (including, without limitation, Article 10, of this Lease), without recourse, representationor warranty of any kind or nature, express or implied, including without limitation, habitability,merchantability or fitness for a particular purpose, (vii) at the expiration or earlier terminationof this Lease, the Cubicles and Equipment shall be returned and surrendered to Landlord in the sameor substantially similar condition and repair as when delivered to Tenant, reasonable wear and tearand damage by Landlord excepted, (viii) Tenant shall be obligated to repair, maintain and insurethe Cubicles and Equipment, (ix) Tenant shall not have the right or ability to (a) remove ormaterially modify the Cubicles and Equipment or (b) assign or sublet any of the Cubicles andEquipment except in conjunction with this Lease and the Premises and (x) Tenant shall pay anytaxes, assessments and insurance premiums attributable to the Cubicles and Equipment.**///signatures on next page///**[ * ] = Certain confidential information contained in this document, marked by brackets, hasbeen omitted and filed separately with the Securities and Exchange Commission pursuant to Rule24b-2 of the Securities Exchange Act of 1934, as amended.
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**///continued from previous page///****IN WITNESS WHEREOF**, this Lease is executed by the parties as of the Lease Date specified in theBasic Lease Information.**Landlord:**LEGACY PARTNERS I SAN JOSE, LLC,