exv10w44



 





Exhibit
10.44



LEASE

(Single Tenant; Net; University Research Park — Phase XI [GL])




BETWEEN




IRVINE COMMERCIAL PROPERTY COMPANY LLC




AND




BROADCOM CORPORATION




 









 





INDEX TO LEASE




	 	 	 	 	 	 	 	 	 
	ARTICLE I. BASIC LEASE PROVISIONS	 	 	1	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE II. PREMISES	 	 	3	 
	 

	 	SECTION 2.1.
SECTION 2.2.
SECTION 2.3.
	 	LEASED PREMISES

ACCEPTANCE OF PREMISES

BUILDING NAME AND ADDRESS
	 	



	3

3

3	




	 

	 	SECTION 2.4.
	 	CONDITION AND MAINTENANCE OF BUILDING STRUCTURES AND
BUILDING SYSTEMS
	 	 	3	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE III. TERM	 	 	3	 
	 

	 	SECTION 3.1.
	 	GENERAL
	 	 	3	 
	 

	 	SECTION 3.2.
	 	DELAY IN POSSESSION
	 	 	4	 
	 

	 	SECTION 3.3.
	 	RENT CREDITS FOR DELAY
	 	 	4	 
	 

	 	SECTION 3.4.
	 	RIGHT TO EXTEND THIS LEASE
	 	 	4	 
	 

	 	SECTION 3.5
	 	PREVAILING MARKET RENT
	 	 	5	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE IV. RENT AND OPERATING EXPENSES	 	 	5	 
	 

	 	SECTION 4.1.
	 	BASIC RENT
	 	 	5	 
	 

	 	SECTION 4.2.
	 	OPERATING EXPENSES
	 	 	5	 
	 

	 	SECTION 4.3.
	 	[INTENTIONALLY DELETED]
	 	 	10	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE V. USES	 	 	10	 
	 

	 	SECTION 5.1.
	 	USE
	 	 	10	 
	 

	 	SECTION 5.2.
	 	SIGNS
	 	 	10	 
	 

	 	SECTION 5.3.
	 	HAZARDOUS MATERIALS
	 	 	11	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE VI. COMMON AREAS; SERVICES	 	 	13	 
	 

	 	SECTION 6.1.
	 	UTILITIES AND SERVICES
	 	 	13	 
	 

	 	SECTION 6.2.
	 	OPERATION AND MAINTENANCE OF COMMON AREAS
	 	 	13	 
	 

	 	SECTION 6.3.
	 	USE OF COMMON AREAS
	 	 	14	 
	 

	 	SECTION 6.4.
	 	PARKING
	 	 	14	 
	 

	 	SECTION 6.5.
	 	CHANGES AND ADDITIONS BY LANDLORD
	 	 	14	 
	 

	 	SECTION 6.6.
	 	LICENSE FOR GENERATOR
	 	 	14	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE VII. MAINTAINING THE PREMISES	 	 	15	 
	 

	 	SECTION 7.1.
	 	TENANT’S MAINTENANCE AND REPAIR
	 	 	15	 
	 

	 	SECTION 7.2.
	 	LANDLORD’S MAINTENANCE AND REPAIR
	 	 	15	 
	 

	 	SECTION 7.3.
	 	ALTERATIONS
	 	 	16	 
	 

	 	SECTION 7.4.
	 	MECHANIC’S LIENS
	 	 	17	 
	 

	 	SECTION 7.5.
	 	ENTRY AND INSPECTION
	 	 	17	 
	 

	 	SECTION 7.6.
	 	COMMUNICATIONS EQUIPMENT
	 	 	17	 
	 

	 	SECTION 7.7.
	 	COMMUNICATION VENDORS
	 	 	18	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE VIII. TAXES AND ASSESSMENTS ON TENANT’S PROPERTY	 	 	18	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE IX. ASSIGNMENT AND SUBLETTING	 	 	18	 
	 

	 	SECTION 9.1.
	 	RIGHTS OF PARTIES
	 	 	18	 
	 

	 	SECTION 9.2.
	 	EFFECT OF TRANSFER
	 	 	20	 
	 

	 	SECTION 9.3.
	 	SUBLEASE REQUIREMENTS
	 	 	20	 
	 

	 	SECTION 9.4.
	 	CERTAIN TRANSFERS
	 	 	20	 
	 

	 	SECTION 9.5.
	 	OCCUPANCY BY OTHERS
	 	 	21	 
	 

	 	SECTION 9.6.
	 	RECOGNITION AGREEMENT
	 	 	21	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE X. INSURANCE AND INDEMNITY	 	 	21	 
	 

	 	SECTION 10.1.
	 	TENANT’S INSURANCE
	 	 	21	 
	 

	 	SECTION 10.2.
	 	LANDLORD’S INSURANCE
	 	 	21	 
	 

	 	SECTION 10.3.
	 	TENANT’S INDEMNITY
	 	 	22	 
	 

	 	SECTION 10.4.
	 	LANDLORD’S NONLIABILITY
	 	 	22	 
	 

	 	SECTION 10.5.
	 	WAIVER OF SUBROGATION
	 	 	23	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE XI. DAMAGE OR DESTRUCTION	 	 	23	 
	 

	 	SECTION 11.1.
	 	RESTORATION
	 	 	23	 
	 

	 	SECTION 11.2.
	 	LEASE GOVERNS
	 	 	24	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE XII. EMINENT DOMAIN	 	 	24	 
	 

	 	SECTION 12.1.
	 	TOTAL OR PARTIAL TAKING
	 	 	24	 
	 

	 	SECTION 12.2.
	 	TEMPORARY TAKING
	 	 	24	 
	 

	 	SECTION 12.3.
	 	TAKING OF PARKING AREA
	 	 	24	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE XIII. SUBORDINATION; ESTOPPEL CERTIFICATE; FINANCIALS	 	 	24	 
	 

	 	SECTION 13.1.
	 	SUBORDINATION
	 	 	24	 






i









 






	 	 	 	 	 	 	 	 	 
	 

	 	SECTION 13.2.
	 	GROUND LESSOR NDAA
	 	 	25	 
	 

	 	SECTION 13.3.
	 	ESTOPPEL CERTIFICATE
	 	 	25	 
	 

	 	SECTION 13.4.
	 	FINANCIALS
	 	 	25	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE XIV. EVENTS OF DEFAULT AND REMEDIES	 	 	25	 
	 

	 	SECTION 14.1.
	 	TENANT’S DEFAULTS
	 	 	25	 
	 

	 	SECTION 14.2.
	 	LANDLORD’S REMEDIES
	 	 	26	 
	 

	 	SECTION 14.3.
	 	LATE PAYMENTS
	 	 	27	 
	 

	 	SECTION 14.4.
	 	RIGHT OF LANDLORD TO PERFORM
	 	 	27	 
	 

	 	SECTION 14.5.
	 	DEFAULT BY LANDLORD
	 	 	27	 
	 

	 	SECTION 14.6.
	 	EXPENSES AND LEGAL FEES
	 	 	27	 
	 

	 	SECTION 14.7.
	 	WAIVER OF JURY TRIAL/JUDICIAL REFERENCE
	 	 	27	 
	 

	 	SECTION 14.8.
	 	SATISFACTION OF JUDGMENT
	 	 	29	 
	 
	ARTICLE XV. END OF TERM	 	 	29	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SECTION 15.1.
	 	HOLDING OVER
	 	 	29	 
	 

	 	SECTION 15.2.
	 	PERMITTED HOLD-OVER
	 	 	29	 
		 	SECTION 15.3.	 	MERGER OF TERMINATION	 	 	29	 
	 

	 	SECTION 15.4
	 	SURRENDER OF PREMISES; REMOVAL OF PROPERTY
	 	 	29	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE XVI. PAYMENTS AND NOTICES	 	 	29	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE XVII. RULES AND REGULATIONS	 	 	30	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE XVIII. BROKER’S COMMISSION	 	 	30	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE XIX. TRANSFER OF LANDLORD’S INTEREST	 	 	30	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE XX. INTERPRETATION	 	 	30	 
	 

	 	SECTION 20.1.
	 	GENDER AND NUMBER
	 	 	30	 
	 

	 	SECTION 20.2.
	 	HEADINGS
	 	 	30	 
	 

	 	SECTION 20.3.
	 	JOINT AND SEVERAL LIABILITY
	 	 	30	 
	 

	 	SECTION 20.4.
	 	SUCCESSORS
	 	 	30	 
	 

	 	SECTION 20.5.
	 	TIME OF ESSENCE
	 	 	30	 
	 

	 	SECTION 20.6.
	 	CONTROLLING LAW/VENUE
	 	 	30	 
	 

	 	SECTION 20.7.
	 	SEVERABILITY
	 	 	30	 
	 

	 	SECTION 20.8.
	 	WAIVER AND CUMULATIVE REMEDIES
	 	 	31	 
	 

	 	SECTION 20.9.
	 	INABILITY TO PERFORM
	 	 	31	 
	 

	 	SECTION 20.10.
	 	ENTIRE AGREEMENT
	 	 	31	 
	 

	 	SECTION 20.11.
	 	QUIET ENJOYMENT
	 	 	31	 
	 

	 	SECTION 20.12.
	 	SURVIVAL
	 	 	31	 
	 

	 	SECTION 20.13.
	 	INTERPRETATION
	 	 	31	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE XXI. EXECUTION AND RECORDING	 	 	31	 
	 

	 	SECTION 21.1.
	 	COUNTERPARTS
	 	 	31	 
	 

	 	SECTION 21.2.
	 	CORPORATE, LIMITED LIABILITY COMPANY AND PARTNERSHIP AUTHORITY
	 	 	31	 
	 

	 	SECTION 21.3.
	 	EXECUTION OF LEASE; NO OPTION OR OFFER
	 	 	31	 
	 

	 	SECTION 21.4.
	 	RECORDING
	 	 	31	 
	 

	 	SECTION 21.5.
	 	AMENDMENTS
	 	 	31	 
	 

	 	SECTION 21.6.
	 	EXECUTED COPY
	 	 	31	 
	 

	 	SECTION 21.7.
	 	ATTACHMENTS
	 	 	31	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE XXII. MISCELLANEOUS	 	 	32	 
	 

	 	SECTION 22.1.
	 	NONDISCLOSURE OF LEASE TERMS
	 	 	32	 
	 

	 	SECTION 22.2.
	 	[INTENTIONALLY OMITTED]
	 	 	32	 
	 

	 	SECTION 22.3.
	 	CHANGES REQUESTED BY LENDER
	 	 	32	 
	 

	 	SECTION 22.4.
	 	MORTGAGEE PROTECTION
	 	 	32	 
	 

	 	SECTION 22.5.
	 	COVENANTS AND CONDITIONS
	 	 	32	 
	 

	 	SECTION 22.6.
	 	SECURITY MEASURES
	 	 	32	 
	 

	 	SECTION 22.7.
	 	ARBITRATION OF DISPUTES
	 	 	32	 
	 

	 	SECTION 22.8.
	 	CONSENT/DUTY TO ACT REASONABLY
	 	 	33	 
	 

	 	SECTION 22.9.
	 	ACCESS
	 	 	33	 






	 	 	 
	 
	 	 
	EXHIBITS
	 	 
	Exhibit A
	 	Description of Premises
	Exhibit B
	 	Environmental Questionnaire
	Exhibit C
	 	Landlord’s Disclosures
	Exhibit D
	 	Insurance Requirements
	Exhibit E
	 	Rules and Regulations
	Exhibit F
	 	Signage Location and Description
	Exhibit X
	 	Work Letter
	Exhibit Y
	 	Project Site Plan







ii











 





LEASE

(Single Tenant; Net; University Research Park — Phase XI [GL])




     THIS LEASE is made as of the 31st day of October, 2007 by and between
IRVINE COMMERCIAL PROPERTY COMPANY, a Delaware limited liability company hereafter called
"Landlord,” and BROADCOM CORPORATION, a California corporation hereinafter called “Tenant.”



ARTICLE I. BASIC LEASE PROVISIONS




     Each reference in this Lease to the “Basic Lease Provisions” shall mean and refer to the
following collective terms, the application of which shall be governed by the provisions in the
remaining Articles of this Lease.




	1.	 	Premises: The Premises are more particularly described in Section 2.1.
	 
	 	 	Address of Building: 5211 California, Irvine, CA
	 
	2.	 	Project Description (if applicable): University Research Park XI
	 
	3.	 	Use of Premises: general office use including but not limited to (i) corporate headquarters
and/or corporate office functions; (ii) research and development of semiconductors and related
products, including non-destructive electronic laboratory facilities; (iii) storage and
shipping of both raw and finished goods; (iv) kitchen facilities to serve the needs of the
employees and guests of Tenant; and (v) any other non-retail use permitted by applicable law,
so long as such uses are consistent with the applicable zoning ordinances of the City of
Irvine and with the Ground Lease (including the Development Plan incorporated by reference in
the Ground Lease), subject to the restrictions set forth in Section 5.1 below.
	 
	4.	 	Commencement Date: The Commencement Date shall be established pursuant to the provisions of
Section 3.1 (and is estimated to occur on February 11, 2008).
	 
	5.	 	Expiration Date: April 30, 2017
	 
	6.	 	Basic Rent: Commencing on the Commencement Date, the Basic Rent shall be One Hundred
Thirteen Thousand Five Hundred Fifty-Eight Dollars ($113,558.00) per month, based on $1.79 per
rentable square foot.
	 
	 	 	Basic Rent is subject to adjustment as follows:
	 
	 	 	Commencing twelve (12) months following the Commencement Date, the Basic Rent shall be One
Hundred Eighteen Thousand Six Hundred Thirty-Three Dollars ($118,633.00) per month, based on
$1.87 per rentable square foot.
	 
	 	 	Commencing twenty-four (24) months following the Commencement Date, the Basic Rent shall be
One Hundred Twenty-Three Thousand Seven Hundred Eight Dollars ($123,708.00) per month, based
on $1.95 per rentable square foot.
	 
	 	 	Commencing thirty-six (36) months following the Commencement Date, the Basic Rent shall be
One Hundred Twenty-Eight Thousand Seven Hundred Eighty-Three Dollars ($128,783.00) per
month, based on $2.03 per rentable square foot.
	 
	 	 	Commencing forty-eight (48) months following the Commencement Date, the Basic Rent shall be
One Hundred Thirty Three Thousand Eight Hundred Fifty-Eight Dollars ($133,858.00) per month,
based on $2.11 per rentable square foot.
	 
	 	 	Commencing sixty (60) months following the Commencement Date, the Basic Rent shall be One
Hundred Thirty Eight Thousand Nine Hundred Thirty-Four Dollars ($138,934.00) per month,
based on $2.19 per rentable square foot.
	 
	 	 	Commencing seventy-two (72) months following the Commencement Date, the Basic Rent shall be
One Hundred Forty Four Thousand Nine Dollars ($144,009.00) per month, based on $2.27 per
rentable square foot.
	 
	 	 	Commencing eighty-four (84) months following the Commencement Date, the Basic Rent shall be
One Hundred Forty Nine Thousand Eighty-Four Dollars ($149,084.00) per month, based on $2.35
per rentable square foot.
	 
	 	 	Commencing ninety-six (96) months following the Commencement Date, the Basic Rent shall be
One Hundred Fifty Four Thousand One Hundred Fifty-Nine Dollars ($154,159.00) per month,
based on $2.43 per rentable square foot.





1









 





	 	 	Commencing one hundred eight (108) months following the Commencement Date, the Basic Rent
shall be One Hundred Fifty Nine Thousand Two Hundred Thirty-Four Dollars ($159,234.00) per
month, based on $2.51 per rentable square foot.
	 
	7.	 	Guarantor(s): None
	 
	8.	 	Floor Area: Approximately 63,440 rentable square feet
	 
	9.	 	Security Deposit: $0
	 
	10.	 	Broker(s): “Landlord’s Broker”: Irvine Realty Company
	 
	 	 	"Tenant’s Broker”: Real-Tech, Inc.
	 
	11.	 	Additional Insureds: The Regents of the University of California
	 
	12.	 	Address for Notices:





	 	 	 
	LANDLORD	 	TENANT
	 
	 	 
	IRVINE COMMERCIAL PROPERTY COMPANY
	 	BROADCOM CORPORATION
	c/o THE IRVINE COMPANY LLC
	 	5300 California Avenue
	550 Newport Center Drive
	 	Irvine, CA 92617
	Newport Beach, CA 92660
	 	Attn: Vice President, Corporate Services
	Attn: Senior Vice President, Operations
	 	 
	Irvine Office Properties
	 	and
	 
	 	 
	with a copy of notices to:
	 	BROADCOM CORPORATION
	 
	 	5300 California Avenue
	IRVINE COMMERCIAL PROPERTY COMPANY
	 	Irvine, CA 92617
	THE IRVINE COMPANY LLC
	 	Attn: Deputy General Counsel
	550 Newport Center Drive
	 	 
	Newport Beach, CA 92660
	 	with a copy of notices to
	Attn: Vice
President, Operations
Irvine Office Properties, Technology Portfolio
	 	DLA Piper US LLP
	
	 	550 South Hope Street, Suite 2300
	 
	 	Los Angeles, CA 90071
	 
	 	Attn: Michael Meyer, Esq.
	 
	 	 
	 
	 	and
	 
	 	 
	 
	 	Mr. Kim Josephson
	 
	 	Real Tech
	 
	 	1601 Dove Street, Suite 210
	 
	 	Newport Beach, CA 92660







	13.	 	Address for Payments: All payments due under this Lease shall be made to the address shown
on the invoice for the payment due, or if no address is shown, to Landlord’s notice address
above.
	 
	14.	 	Tenant’s Liability Insurance Requirement: $2,000,000.00
	 
	15.	 	Vehicle Parking Spaces: Two hundred thirty-three (233)
	 
	16.	 	The Premises are a portion of certain real property which is leased by Landlord pursuant to
that certain Ground Lease (the “Ground Lease”) dated as of April 11, 2000, by and between The
Regents of the University of California, a California corporation (“Ground Lessor”) and The
Irvine Company, a Delaware corporation, a Memorandum of which was recorded on August 30, 2000,
as Instrument No. 20000454625 in the Official Records of Orange County, California. Tenant
understands and acknowledges that a material consideration for Landlord entering into this
Lease with Tenant is the nature of Tenant’s business and the mutual benefits to be derived by
Tenant and by Ground Lessor. Accordingly, in the event of any proposed assignment of this
Lease or sublease of the Premises or any portion thereof, in addition to all of the provisions
of Section 9.1(b) of this Lease, Landlord may reasonably withhold its consent to any such
proposed assignment or sublease if Landlord determines in its sole and absolute discretion
that such mutual benefits will not be derived as a result of the proposed use of the Premises
by such assignee, sublessee or transferee.




2









 











ARTICLE II. PREMISES




     SECTION 2.1. LEASED PREMISES. Landlord leases to Tenant and Tenant leases from Landlord the
premises shown in Exhibit A (the “Premises”), containing approximately the rentable square
footage set forth as the “Floor Area” in Item 8 of the Basic Lease Provisions and known by the
suite number identified in Item 1 of the Basic Lease Provisions. The Premises are located in the
building identified in Item 1 of the Basic Lease Provisions (the Premises together with such
building and the underlying real property, are called the “Building”), and is a portion of the
project identified in Item 2 of the Basic Lease Provisions and shown in Exhibit Y, if any
(the “Project”). Landlord makes no representation that any portion of the Project designated on
Exhibit Y as “Future Development” will be ultimately constructed. All references to “Floor
Area” in this Lease shall mean the rentable square footage set forth in Item 8 of the Basic Lease
Provisions. The rentable square footage set forth in Item 8 may include or have been adjusted by
various factors, including, without limitation, a load factor to allocate a proportionate share of
any vertical penetrations, stairwells, common lobby or common features or areas of the Building.
Landlord and Tenant agree that the Floor Area set forth in Item 8 shall be binding on Landlord and
Tenant for purposes of this Lease regardless of whether any future or differing measurements of the
Premises or the Building are consistent or inconsistent with the Floor Area set forth in Item 8.



     SECTION 2.2. ACCEPTANCE OF PREMISES. Tenant’s lease of the Premises shall be on an “as is”
basis without further alteration, addition or improvement to the Premises whatsoever. Tenant
acknowledges that, except as specifically set forth in this Lease, neither Landlord nor any
representative of Landlord has made any representation or warranty with respect to the Premises,
the Building or the Project or their respective suitability or fitness for any purpose, except a
representation and warranty that the Tenant’s use of the Premises for general business office
operations is permitted by the applicable zoning. Further, except as provided above, Further,
neither Landlord nor any representative of Landlord has made any representations or warranties
regarding (i) what other tenants or uses may be permitted or intended in the Building or the
Project, (ii) any exclusivity of use by Tenant with respect to its permitted use of the Premises as
set forth in Item 3 of the Basic Lease Provisions, or (iii) any construction of portions of the
Project not yet completed. Tenant further acknowledges that the flooring materials which may be
installed within portions of the Premises located on the ground floor of the Building may be
limited by the moisture content of the Building slab and underlying soils.



     SECTION 2.3. BUILDING NAME AND ADDRESS. Tenant may utilize any name selected by Landlord from
time to time for the Building and/or the Project to identify the location of Tenant’s Premises but
shall not include same as any part of Tenant’s corporate or trade name. Landlord shall not have
the right to change the name of the Building. Landlord shall have the right to change the name,
address, number or designation of the Project without liability to Tenant, as long as such name
does not constitute an objectionable name associated with racism such as the KKK or American Nazi
Party, or sexism such as Hooters, Playboy, and the like, or personal health care products such as
Viagra, Trojans, Tampax and the like.



     SECTION 2.4. CONDITION AND MAINTENANCE OF BUILDING STRUCTURES AND BUILDING SYSTEMS.
Notwithstanding the foregoing or anything in this Lease to the contrary, Landlord hereby warrants
to Tenant that the Building, including the foundation, floor/ceiling slabs, roof, curtain wall,
exterior glass and mullions, windows and seals, columns, beams, shafts (including elevator shafts),
stairs, stairwells, elevator cabs, base building washrooms, and main electrical room (collectively,
"Building Structure”), the Common Areas, and the mechanical systems (including Building elevators),
electrical, life-safety, plumbing, sprinkler systems (connected to the core) and HVAC systems
(collectively, “Building Systems”) shall, as of the date of the commencement of construction of the
“Tenant Improvements” (as defined in the Work Letter attached here by as Exhibit X) (the “TI
Commencement Date”), be in good operating condition and in compliance with all laws (including,
without limitation, the Americans with Disabilities Act (“ADA”) and laws pertaining to Hazardous
Materials) in effect as of the TI Commencement Date, and shall as of the TI Commencement Date be
structurally sound with water tight roofs and perimeter walls and windows. Provided that Tenant
shall notify Landlord of a non-compliance with the foregoing warranty on or before sixty (60) days
following the Commencement Date, then Landlord shall, notwithstanding anything to the contrary
contained in the Work Letter attached as Exhibit X to this Lease, promptly after receipt of
written notice from Tenant setting forth the nature and extent of such non-compliance, rectify same
at Landlord’s cost and expense.



ARTICLE III. TERM




     SECTION 3.1. GENERAL. The term of this Lease (“Term”) shall be for the period shown in Item 5
of the Basic Lease Provisions. Subject to the provisions of Section 3.2 below, the Term shall
commence (“Commencement Date”) on the earlier to occur of: (a) the date Tenant commences
its normal business within the Premises, or (b) the first business day of the week (but not sooner
that February 11, 2008) following Tenant’s receipt of a factually correct notice that the “Tenant
Improvements” (as defined in the Work Letter attached hereto as Exhibit X) are
substantially completed and a certificate of occupancy or the equivalent has been obtained for the
Premises (or would have been obtained had no “Tenant Delay(s)”, as defined in Exhibit X,
occurred), provided that the Premises shall not be tendered to Tenant until all approvals by
relevant governmental authorities of the Tenant Improvements which are required for occupancy of
the Premises have been obtained (as evidenced by written approval thereof in accordance with the
building permits issued for the Tenant Improvements or issuance of a temporary or final certificate
of occupancy for the Premises), or (c) February 11, 2008. The date on which this Lease is
scheduled to terminate is referred to as the “Expiration Date.” Within ten (10) days following the
occurrence of the Commencement Date, the parties shall memorialize on
a form reasonably provided by Landlord the actual Commencement Date and the Expiration Date of
this Lease. Tenant shall have no right to have access to, or control of, the Premises until the
Commencement Date.



3









 





     SECTION 3.2. DELAY IN POSSESSION. Landlord shall use commercially reasonable efforts in
accordance with its normal and customary construction practices to cause the Tenant Improvements to
be constructed as soon as reasonably possible subject to Tenant Delays as defined in Exhibit
X and force majeure delays described in Section 20.9. If Landlord is unable to deliver
possession of the Premises to Tenant with the Tenant Improvements substantially completed and with
occupancy permits obtained therefor as more particularly provided in Section 3.1(b) above by the
date provided in Section 3.1(c) above due either to: (i) matters described in Section 20.9 of this
Lease, or (ii) Landlord’s inability to recover possession of the Premises from the tenant in
possession as of the date of this Lease (the “Tenant in Possession”) by November 1, 2007, then this
Lease shall not be void or voidable except as provided below in this Section 3.2 nor shall Landlord
be liable to Tenant for any resulting loss or damage except as expressly provided in Section 3.3
below, but the Commencement Date shall not occur, in such event, until the earlier to occur of
those dates described in Section 3.1(a) or 3.1(b) above, except that if Landlord cannot tender
possession of the Premises in accordance with the provisions of Section 3.1(b) above due to any
action or inaction of Tenant (including without limitation any Tenant Delay described in the Work
Letter attached to this Lease), then the Commencement Date shall for purposes of Section 3.1(b), be
deemed advanced by the collective number of days of delay caused by Tenant. Tenant hereby agrees
that Ground Lessor shall have no liability to Tenant, and that Tenant holds Ground Lessor free and
harmless, on account of any delay. If Landlord has not recovered possession of the Premises from
the Tenant in Possession by November 15, 2007, then Tenant may terminate this Lease on written
notice to Landlord given prior to November 30, 2007 whereupon this Lease will terminate unless
Landlord recovers possession of the Premises by December 10, 2007. If Landlord does not complete
the construction of the Tenant Improvements by October 15, 2008 as extended by Tenant Delays and by
force majeure occurrences as described in Section 20.9 (but not beyond October 15, 2009 except that
such date will be extended for Tenant Delays), then Tenant may terminate this Lease on written
notice given to Landlord within sixty (60) days following October 15, 2008 as such date may be
extended.



     SECTION 3.3. RENT CREDITS FOR DELAY. Notwithstanding the foregoing provisions of Section 3.2,
Landlord shall use commercially reasonable efforts to cause the Tenant in Possession to vacate the
Premises by October 15, 2007, but in the event that Landlord has not recovered possession of the
Premises from the Tenant in Possession on or before November 1, 2007 (the “Outside Date”), then
Tenant, as its sole recourse (except as provided in Section 3.3 (ii) below) and in lieu of any
other claim for resulting loss or damages, shall be entitled to credits against Basic Rent and
Operating Expenses first coming due and payable under this Lease in the amount of one and one-half
(1.5) days of per diem Basic Rent and Operating Expenses for each day that possession of the
Premises is not so recovered from and after the Outside Date. Notwithstanding anything to the
contrary contained in the foregoing provisions of this Section 3.3: (i) the Outside Date shall be
extended for the duration of any period that such recovery of possession is delayed due to matters
described in Section 20.9 of this Lease and for the duration of any period of time beyond November
1, 2007 that a building permit for the Tenant Improvements is not issued by the City of Irvine; and
(ii) Tenant shall be entitled to pursue an action for specific performance in the event that
Landlord has not recovered possession from the Tenant in Possession by January 1, 2008 (as such
date shall be extended for matters described in Section 20.9 of this Lease).



     SECTION 3.4. RIGHT TO EXTEND THIS LEASE. Provided that no Event of Default exists under any
provision of this Lease at the time of exercise of the extension right granted herein, and provided
Tenant has not assigned this Lease (except for this purpose only, an assignment pursuant to Section
9.4 shall not be considered an assignment), then Tenant may extend the Term of this Lease for two
(2) successive periods of sixty (60) months each. Tenant shall exercise its right to extend the
Term by and only by delivering to Landlord, not less than eighteen (18) months prior to the
expiration date of the Term, Tenant’s irrevocable written notice of its commitment to extend the
Term of the Lease (the “Commitment Notice”).



     The Basic Rent payable under the Lease during any extension of the Term shall be determined as
provided in the following provisions. If Landlord and Tenant have not by then been able to agree
upon the Basic Rent for the extension of the Term, then not later than one hundred eighty (180)
days prior to the expiration date of the Term, Landlord shall notify Tenant in writing of the
Prevailing Market Rent (as defined in Section 3.5 below) that would reflect one hundred percent
(100%) of the Prevailing Market Rent rate for a 60-month renewal of comparable space in the Project
(together with any increases thereof during the extension period) as of the commencement of the
extension period (“Landlord’s Determination”). Concurrently with the delivery of the Landlord’s
Determination, Tenant shall deliver to Landlord Tenant’s written determination of the Prevailing
Market Rent (“Tenant’s Determination”). If within thirty (30) days following the concurrent
delivery of the Landlord’s Determination and the Tenant’s Determination the parties are still
unable to agree on the rental terms for the extension period, then either party may thereafter
submit the determination of the Prevailing Market Rent for the extension period to arbitration
pursuant to Section 22.7 below. The arbitrator utilized to reach such determination shall have at
least ten (10) years of experience in commercial real estate matters.



     Within thirty (30) days following the selection of the arbitrator and such arbitrator’s
receipt of the Landlord’s Determination and the Tenant’s Determination, the arbitrator shall
determine whether the Prevailing Market Rent rate determined by Landlord or by Tenant more
accurately reflects one hundred percent (100%) of the Prevailing Market Rent rate for each 60-month
renewal of the Lease for the Premises. Accordingly, either the Landlord’s Determination or the
Tenant’s Determination shall be selected by the arbitrator as the Prevailing Market Rent for the
extension period. At any time before the decision of the arbitrator is rendered, either party may,
by written notice to the other party, accept the rental terms submitted by the other party, in
which event such terms shall be deemed adopted as the agreed Prevailing Market Rent. The fees of the arbitration shall be
borne entirety by the party whose determination of the fair market rental rate was not accepted by
the arbitrator. At any time before the decision of the arbitrator is rendered, either party may,
by written notice to the other party, accept the rental terms submitted by the other party, in
which event such terms shall be deemed adopted as the agreed Prevailing Market Rent.



4









 





     Within twenty (20) days after the determination of the Prevailing Market Rent, Landlord shall
prepare an appropriate amendment to this Lease for the extension period, and Tenant shall execute
and return same to Landlord within ten (10) days after Tenant’s receipt of same. Should the
Prevailing Market Rent not be established by the commencement of the extension period, then Tenant
shall continue paying rent at the rate in effect during the last month of the initial Term, and a
lump sum adjustment shall be made promptly upon the determination of such new rental.



     The rights granted to Tenant under this Section 3.4 are personal to Broadcom Corporation, a
California corporation, and to any assignee thereof permitted pursuant to Section 9.4 of the Lease.
Any other attempt to assign or transfer and right or interest created by this Section shall be
void from its inception. Tenant shall have no other right to extend the Term beyond the two (2)
successive sixty (60) month extension periods created by this paragraph. Unless agreed to in a
writing signed by Landlord and Tenant, any extension of the Term, whether created by an amendment
to this Lease or by a holdover of the Premises by Tenant, or otherwise, shall be deemed a part of,
and not in addition to, any duly exercised extension period permitted by this paragraph.



     SECTION 3.5 PREVAILING MARKET RENT. The prevailing market rental rate (“Prevailing Market
Rate”) is defined as the Basic Rent, together with any increases thereof during the extension
period, ,and other economic terms then being accepted by Landlord for a 60-month lease of
comparable space in the Project in excess of 50,000 rentable square feet to a new, non-sublease,
non-renewal and non-expansion (except for extensions by tenants whose leases contain a comparable
fair market extension right, whether or not exercised, and for expansions pursuant to an option
right at a fair market rate)as of the commencement of the applicable extension term (“Comparable
Transactions”). To the extent there are not a sufficient number of Comparable Transactions in the
Project, then Comparable Transactions will also include what a comparable landlord of comparable
buildings with comparable vacancy factors in comparable locations in the vicinity of the Project
(“Comparable Buildings”) would accept in Comparable Transactions, taking into account and adjusting
for historic rental differentials between the Comparable Buildings and the Project. In any
determination of Comparable Transactions appropriate consideration shall be given to the annual
rental rates per rentable square foot, the standard of measurement by which the rentable square
footage is measured, the type of escalation clause (e.g., whether increases in additional rent are
determined on a net or gross basis, and if gross, whether such increases are determined according
to a base year or a base dollar amount expense stop), parking rights and obligations (it being
specifically understood that because Tenant is granted free parking hereunder, Landlord shall be
entitled to an economic credit if other tenants of the Project and Comparable Buildings are then
paying for parking), roof/antenna and other license rights, signage rights, abatement provisions
reflecting free rent and/or no rent during the period of construction or subsequent to the
commencement date as to the space in question, brokerage commissions (but only if Tenant has
engaged the services of a broker or Landlord is otherwise required to pay a commission with respect
to a renewal), length of the lease term, size and location of premises being leased, building
standard work letter and/or tenant improvements allowances, if any, the condition of the base
building and the Landlord’s responsibility with respect thereto, the value, if any, of the existing
tenant improvements, all other relevant economic considerations and other generally applicable
conditions of tenancy for such Comparable Transactions. The intent is that Tenant will obtain (and
pay) the same rent and receive the other economic benefits that Landlord would otherwise give in
Comparable Transactions and that Landlord will make and receive the same economic payments and
concessions that Landlord would otherwise make and receive in Comparable Transactions.



ARTICLE IV. RENT AND OPERATING EXPENSES




     SECTION 4.1. BASIC RENT. . From and after the Commencement Date, Tenant shall pay to Landlord
without deduction or offset except as specifically permitted by this Lease, the rental amount for
the Premises shown in Item 6 of the Basic Lease Provisions (the “Basic Rent"), including
adjustments shown in said Item 6. Rental adjustments to Basic Rent shall be deemed to occur on the
first day of the next calendar month following the specified monthly anniversary of the
Commencement Date of the Lease, whether or not the Commencement Date occurs at the end of a
calendar month. The rent shall be due and payable in advance commencing on the Commencement Date
(as prorated for any partial month) and continuing thereafter on the first day of each successive
calendar month of the Term. No demand, notice or invoice shall be required for the payment of
Basic Rent. Tenant shall not be required to pay the first month’s Basic Rent upon execution of
this Lease. Rather, Tenant shall be required to pay the first month’s Basic Rent on the
Commencement Date.



     SECTION 4.2. OPERATING EXPENSES.



     (a) From and after the Commencement Date, Tenant shall pay to Landlord, as additional rent,
Tenant’s Share of all Operating Expenses, as defined in Section 4.2(f), incurred by Landlord in the
operation of the Building and the Project. The term “Tenant’s Share” means one hundred percent
(100%) of Operating Expenses determined by Landlord to benefit or relate substantially to the
Building rather than the entire Project, plus that portion of any Operating Expenses determined by
multiplying the cost of such item by a fraction, the numerator of which is the Floor Area and the
denominator of which is the total rentable square footage, as determined from time
to time by Landlord, of all or some of the buildings in the Project, for expenses determined
by Landlord to benefit or relate substantially to all or some of the buildings in the Project
rather than any specific building. Landlord reserves the right to allocate to the entire Project
any Operating Expenses which may benefit or substantially relate to a particular building within
the Project in order to maintain greater consistency of Operating Expenses among buildings within
the Project. In the event that Landlord reasonably determines that the Premises or the Building
incur a non-proportional benefit from any expense, or is the non-proportional cause of any such
expense, Landlord may allocate a greater percentage of such Operating Expense to the Premises or
the Building. In the event that any management and/or overhead fee payable or imposed by Landlord
for the management of Tenant’s Premises is calculated as a percentage of the rent payable by Tenant
and other tenants of Landlord, then the full amount of such



5









 







management and/or overhead fee which is attributable to the rent paid by Tenant shall be additional rent payable by Tenant, in full,
provided, however, that Landlord may elect to include such full amount as part of Tenant’s Share of
Operating Expenses.



     (b) Prior to the start of the first full or partial “Expense Recovery Period” (as defined in
this Section 4.2), Landlord shall give Tenant a written estimate (with breakdown by major expense
components, prepared on a consistent basis) of the amount of Tenant’s Share of Operating Expenses
for the applicable Expense Recovery Period. Tenant shall pay the estimated amounts to Landlord in
equal monthly installments, in advance concurrently with payments of Basic Rent. If Landlord has
not furnished its written estimate for any Expense Recovery Period by the time set forth above,
Tenant shall continue to pay monthly the estimated Tenant’s Share of Operating Expenses in effect
during the prior Expense Recovery Period; if any; provided that when the new estimate is delivered
to Tenant, Tenant shall, at the next monthly payment date, pay any accrued estimated Tenant’s Share
of Operating Expenses based upon the new estimate. For purposes hereof, “Expense Recovery Period”
shall mean every twelve (12) month period during the Term (or portion thereof for the first and
last lease years) commencing July 1 and ending June 30, provided that Landlord shall have the right
to change the date on which an Expense Recovery Period commences in which event appropriate
reasonable adjustments shall be made to Tenant’s Share of Operating Expenses so that the amount
payable by Tenant shall not increase as a result of such change.



     (c) Within one hundred twenty (120) days after the end of each Expense Recovery Period,
Landlord shall furnish to Tenant a statement showing in reasonable detail (i.e., by breakdown of
major expense components prepared on a consistent basis) the actual or prorated Tenant’s Share of
Operating Expenses incurred by Landlord during the period, and the parties shall within thirty (30)
days thereafter make any payment or allowance necessary to adjust Tenant’s estimated payments of
Tenant’s Share of Operating Expenses, if any, to the actual Tenant’s Share of Operating Expenses as
shown by the annual statement. Any delay or failure by Landlord in delivering any statement
hereunder shall not constitute a waiver of Landlord’s right to require Tenant to pay Tenant’s Share
of Operating Expenses pursuant hereto; provided, however, any delay by Landlord in billing Tenant
for any Operating Expenses of more than six (6) months following the expiration of the Review
Period (as defined below) shall be deemed a waiver of Landlord’s right to require payment of
Tenant’s obligations for any such Operating Expenses. Any amount due Tenant shall be credited
against installments next coming due under this Section 4.2, and/or against any installments of
Basic Rent next coming due under Section 4.1, unless this Lease shall have terminated, in which
case Landlord shall pay Tenant the amount due within thirty (30) days, and any deficiency shall be
paid by Tenant within thirty (30) days following receipt of an itemized invoice covering such
payment. Should Tenant fail to object in writing to Landlord’s determination of Tenant’s Share of
Operating Expenses within two (2) years following delivery of Landlord’s expense statement (“Review
Period”), Landlord’s determination of Tenant’s Share of Operating Expenses for the applicable
Expense Recovery Period shall be conclusive and binding on Tenant for all purposes and any future
claims to the contrary shall be barred.



     If Tenant disputes the Operating Expense reconciliation, Tenant shall have the right to meet
with Landlord and/or its property manager to inspect Landlord’s records with respect to such
disputed items. If after such meeting and inspection the parties are unable to resolve the
dispute, Tenant may cause a certified public accountant or a real estate professional who
specializes in lease audits, engaged on a non-contingency fee basis, to audit Operating Expenses by
inspecting Landlord’s general ledger of expenses not more than once during any Expense Recovery
Period. However, to the extent that insurance premiums or any other component of Operating
Expenses is determined by Landlord on the basis of an internal allocation of costs utilizing
information Landlord in good faith deems proprietary, such expense component shall not be subject
to audit so long as it does not exceed the amount per square foot typically incurred by landlords
of other first class business parks in Orange County, California. Tenant shall give notice to
Landlord of Tenant’s intent to audit within the Review Period. Such audit shall be conducted at a
mutually agreeable time during normal business hours at the office of Landlord or its management
agent where such accounts are maintained. If after such audit is completed Tenant still desires to
contest the Operating Expenses for such period, then the results of the audit shall be provided to
Landlord. If such audit reveals that Landlord has overcharged Tenant, then within thirty (30) days
after the results of such audit are made available to Landlord but subject to Landlord’s right to
contest the audit results as provided below, Landlord shall reimburse Tenant the amount of such
overcharge with interest thereon at the Interest Rate. If the audit reveals that Tenant was
undercharged, then within thirty (30) days after the results of the audit are made available to
Tenant, Tenant shall reimburse Landlord the amount of such undercharge with interest thereon at the
Interest Rate. If Tenant’s audit determines that Tenant’s Share of the actual Operating Expenses
have been overstated by more than five percent (5%), then subject to Landlord’s right to review
and/or contest the audit results, Landlord shall reimburse Tenant for the reasonable out-of-pocket
costs of such audit. Tenant’s rent shall be appropriately adjusted to reflect any overstatement in
Operating Expenses. In the event of a dispute between Landlord and Tenant regarding such audit,
such dispute shall be submitted and resolved by binding arbitration pursuant to Section 22.7 below.
All of the information obtained by Tenant and/or its auditor in connection with such audit, as
well as any compromise, settlement, or adjustment reached between Landlord and Tenant as a result
thereof, shall be held in strict confidence and, except as may be required pursuant to litigation,
shall not be disclosed to any third party, directly or indirectly, by Tenant or its auditor or any
of their officers, agents or employees. Landlord may require Tenant’s auditor to execute a
separate reasonable confidentiality agreement affirming the foregoing as a condition precedent to
any audit. The payment by Tenant of any amounts pursuant to this Section shall not preclude Tenant
from questioning the correctness of any statement provided by Landlord at any time during a Review Period, but
the failure of Tenant to object thereto prior to the expiration of the Review Period shall be
conclusively deemed Tenant’s approval of such statement.



     (d) Even though this Lease has terminated and the Tenant has vacated the Premises, when the
final determination is made of Tenant’s Share of Operating Expenses for the Expense Recovery Period
in which this Lease terminates, Tenant shall within thirty (30) days of written notice pay the
entire increase over the estimated Tenant’s Share of Operating Expenses already paid. Conversely,
any overpayment by Tenant shall be rebated by



6









 







Landlord to Tenant not later than thirty (30) days after such final determination. The provisions of (c) above shall also apply to payments due under
this paragraph.



     (e) If, at any time during any Expense Recovery Period, any one or more of the Operating
Expenses are increased to a rate(s) or amount(s) in excess of the rate(s) or amount(s) used in
calculating the estimated Tenant’s Share of Operating Expenses for the year, then the estimate of
Tenant’s Share of Operating Expenses may be increased by written notice from Landlord for the month
in which such rate(s) or amount(s) becomes effective and for all succeeding months by an amount
equal to Tenant’s Share of the increase. Landlord shall give Tenant written notice of the amount
or estimated amount of the increase and the month in which the increase will become effective.
Tenant shall pay the increase to Landlord as a part of Tenant’s monthly payments of the estimated
Tenant’s Share of Operating Expenses as provided in Section 4.2(b), commencing with the month
following Tenant’s receipt of Landlord’s notice. Notwithstanding the foregoing, Landlord shall
only have the right to adjust the estimated expenses once in any Expense Recovery Period.



     (f) The term “Operating Expenses” shall mean and include all Site Costs, as defined in
subsection (g), and Property Taxes, as defined in subsection (h).



     (g) The term “Site Costs” shall include all expenses of operation, repair and maintenance of
the Building and the Project, including without limitation all appurtenant Common Areas (as
defined in Section 6.2), and shall include the following charges by way of illustration but not
limitation: water and sewer charges; insurance premiums or reasonable premium equivalents should
Landlord elect to self-insure all or any portion of any risk that Landlord is authorized to insure
hereunder; license, permit, and inspection fees; heat; light; power; janitorial services to any
interior Common Areas maintained by Landlord, if any; air conditioning; supplies; materials;
equipment; tools; establishment of reasonable reserves for replacement and repair of the Building
roof; the cost of any environmental consultant used by Landlord in connection with the Project;
the cost of any capital expenditures but only to the extent of the amortized amount thereof over
the useful life of such capital expenditures calculated at a market cost of funds, all as
reasonably determined by Landlord, for each such year of useful life during the Term, provided
that such capital expenditures shall be limited to (i) improvements which increase or enhance
building security and/or safety (such as lighting, life/fire safety systems, etc.), (ii) repairs
or replacements of the Building structure, Building systems or Common Areas as required for
functional (and not esthetic) reasons; (iii) alterations or improvements required to comply with
any law or change in law first becoming effective as to the Building after the date hereof; and
(iv) expenditures incurred as a cost or labor saving measure or to affect other economies in the
operation or maintenance of the Building or Project (in which event the entire amount of any
resulting cost saving may be included in Site Costs during the applicable Expense Recovery Period
but in no event in excess of the total cost of the capital expenditure) (collectively, “Permitted
Capital Items”); costs associated with the maintenance of an air conditioning, heating and
ventilation service agreement and maintenance of an intrabuilding network cable service agreement
for any intrabuilding network cable telecommunications lines within the Project, and any other
installation, maintenance, repair and replacement costs associated with such lines; labor;
reasonably allocated wages and salaries, fringe benefits, and payroll taxes for administrative and
other personnel (not higher than Building or Project manager or building engineer) directly
applicable to the Building and/or Project, including both Landlord’s personnel and outside
personnel; any expense incurred pursuant to Sections 6.1, 6.2, 6.4, 7.2, and 10.2; and a
competitive management fee for the professional operation of the Project. For so long as Tenant
is maintaining all Building Systems, such management fee shall be two percent (2%) of the total
rent (including Basic Rent and Operating Expenses) payable under this Lease. It is understood and
agreed that Site Costs may include competitive charges for direct services provided by any
subsidiary or division of Landlord.



     (h) The term “Property Taxes” as used herein shall include the following: (i) all real estate
taxes or personal property taxes which arc levied on the Building and/or the Project and any
improvements, fixtures and equipment and other property of Landlord located in the Building and/or
the Project, as such property taxes may be reassessed from time to time; and (ii) other taxes,
charges and assessments which are levied with respect to this Lease or to the Building and/or the
Project, and any improvements, fixtures and equipment and other property of Landlord located in the
Building and/or the Project, except that general net income, franchise, capital stock, succession,
transfer, gift, estate or inheritance taxes imposed against Landlord, (iii) all assessments and
fees for public improvements, services, and facilities and impacts thereon, including without
limitation arising out of any Community Facilities Districts, “Mello Roos” districts, similar
assessment districts, and any traffic impact mitigation assessments or fees; (iv) any tax,
surcharge or assessment which shall be levied in addition to or in lieu of real estate or personal
property taxes, other than taxes covered by Article VIII; (v) taxes based on the receipt of rent
(including gross receipts or sales taxes applicable to the receipt of rent); and (vi) costs and
expenses incurred in contesting the amount or validity of any Property Tax by appropriate
proceedings. General net income or franchise taxes imposed against Landlord shall be excluded from
Property Taxes.



     (i) Notwithstanding the provisions of this Section 4.2 to the contrary, Operating Expenses
shall not include any cost or expense identified as the responsibility of Landlord and not an
Operating Expense or a Site Cost by the express terms of this Lease, and shall not include any of
the following:



                              (i) Any ground lease rental;



                              (ii) Costs which are deemed capital expenditures under generally accepted accounting
principles consistently applied or otherwise (“Capital Items”), except for Permitted Capital Items
set forth in Section 4.2 (g) above and any other items specifically authorized herein;



                              (iii) Rentals for items (except when needed in connection with normal repairs and maintenance
of permanent systems) which if purchased, rather than rented, would constitute a Capital Item which
is specifically excluded in (ii) above (excluding, however, equipment not affixed to the Building
which is used in providing janitorial or similar services);



7









 





                              (iv) Costs incurred for the repair of any casualty damage to the Building and/or the Project
if and to the extent that such repair costs exceed Two Hundred Fifty Thousand Dollars ($250,000)
per occurrence;



                              (v) Costs, including permit, license and inspection costs, incurred with respect to the
installation of tenants’ or other occupants’ improvements in the Project or incurred in renovating
or otherwise improving, decorating, painting or redecorating vacant space for tenants or other
occupants of the Project;



                              (vi) Depreciation, amortization and interest payments, except as provided in this Lease and
except on materials, tools, supplies and vendor-type equipment purchased by Landlord to enable
Landlord to supply services Landlord might otherwise contract for with a third party where such
depreciation, amortization and interest payments would otherwise have been included in the charge
for such third party’s services, all as determined in accordance with generally accepted accounting
principles, consistently applied, and when depreciation or amortization is permitted or required,
the item shall be amortized over its reasonably anticipated useful life;



                              (vii) Marketing costs including, without limitation, leasing commissions, attorneys’ fees in
connection with the negotiation and preparation of letters, deal memos, letters of intent, leases,
subleases and/or assignments, space planning costs, and other costs and expenses incurred in
connection with lease, sublease and/or assignment negotiations and transactions with present or
prospective tenants or other occupants of the Project;



                              (viii) Expenses in connection with services or other benefits which are not offered to Tenant
or for which Tenant is charged for directly but which are provided to another tenant or occupant of
the Project;



                              (ix) Costs incurred by Landlord due to the violation of the terms and conditions of any lease
of space in the Project;



                              (x) Overhead and profit increment paid to Landlord or to subsidiaries or affiliates of
Landlord for goods and/or services in or to the Project to the extent the same exceeds the costs of
such goods and/or services rendered by unaffiliated third parties on a competitive basis;



                              (xi) Interest, principal, points and fees on debts or amortization on any mortgage or
mortgages or any other debt (except as permitted in (ii) above);



                              (xii) Landlord’s general corporate overhead and general and administrative expenses;



                              (xiii) Any compensation paid to clerks, attendants or other persons in commercial concessions
operated by Landlord;



                              (xiv) Rentals and other related expenses incurred in leasing HVAC systems, elevators or other
equipment ordinarily considered to be Capital Items, except for (1) expenses in connection with
making minor repairs on or keeping Building Systems in operation while minor repairs are being
made, and (2) costs of equipment not affixed to the Building which is used in providing janitorial
or similar services;



                              (xv) Advertising and promotional expenditures, and costs of signs in or on the Building and/or
the Project identifying the owner of the Project or other tenants’ signs;



                              (xvi) Electric power costs for which any tenant directly contracts with the local public
service company or of which any tenant is separately metered or submetered and pays Landlord
directly; provided, however, that if any tenant in any Building contracts directly for electric
power service or is separately metered or submetered during any portion of the relevant period, the
total electric power costs for such Building shall be “grossed up” to reflect what those costs
would have been had each tenant in such Building used the Building-standard amount of electric
power,



                              (xvii) Services and utilities provided, taxes attributable to, and costs incurred in
connection with the operation of the retail and restaurant operations in the Project;



                              (xviii) Costs incurred in connection with upgrading the Building and/or the Project to comply
with disability, life, fire and safety codes, ordinances, statutes, or other laws in effect prior
to the commencement of construction of the Building, base, shell or core improvements, including,
without limitation, the ADA, including penalties or damages incurred due to such noncompliance;



                              (xix) Tax penalties incurred as a result of the failure to make payments and/or to file any
tax or informational returns when due;



                              (xx) Costs for which Landlord has been compensated by a management fee;



                              (xxi) Costs arising from the negligence or fault of other tenants or Landlord or its agents,
or any vendors, contractors, or providers of materials or services selected, hired or engaged by
Landlord or its agents;



                              (xxii) Notwithstanding any contrary provision of the Lease, including, without limitation, any
provision relating to capital expenditures, any and all costs arising from the presence of those
items set forth on Landlord’s Disclosure attached to this Lease as Exhibit C and made a
part hereof and hazardous materials or substances (as defined by applicable laws in effect on the
date the Lease is executed) in or about the Premises, the



8









 







Building or the Project including, without limitation, hazardous substances in the ground water or soil, not placed in the Premises,
the Building or the Project by Tenant, its agents, contractors, employees, invitees or subtenants;



                              (xxiii) Costs arising from charitable or political contributions;



                              (xxiv) Costs arising from defects in the base, shell or core of the Building or improvements
installed by Landlord or repair thereof exclusive of normal wear and tear and ordinary repair
items;



                              (xxv) Costs for the acquisition of (as opposed to the maintenance of) sculpture, paintings or
other objects of art;



                              (xxvi) Costs (including in connection therewith all attorneys’ fees and costs of settlement
judgments and payments in lieu thereof) arising from claims, disputes or potential disputes in
connection with potential or actual claims, litigation or arbitrations pertaining to Landlord
and/or the Building and/or the Project;



                              (xxvii) Costs associated with the operation of the business of the entity which constitutes
Landlord or anyone else or any entity providing services (as such costs are distinguished from the
costs of the operation, repair and maintenance of the Building and the Project), including
corporate accounting and legal matters, costs of defending any lawsuits with any mortgagee (except
as the actions of Tenant may be in issue), costs of selling, syndicating, financing, mortgaging or
hypothecating any of Landlord’s interest in the Project, costs of any disputes between Landlord and
its employees (if any) not engaged in Building operation, disputes of Landlord with Building
management, or outside fees paid in connection with disputes with other tenants;



                              (xxviii) Costs of any initial “tap fees” or any initial sewer or water connection fees for the
Project;



                              (xxix) Costs incurred in connection with any environmental clean-up, response action, or
remediation on, in, under or about the Premises or the Building) or the Project, except as may be
caused by Tenant or any of its subtenants, including but not limited to, costs and expenses
associated with the defense, administration, settlement, monitoring or management thereof;



                              (xxx) Any expenses incurred for use by other than Tenant or its subtenants of any portions of
the Project to accommodate events including, but not limited to shows, promotions, kiosks,
displays, filming, photography, private events or parties, ceremonies, and advertising beyond the
normal expenses otherwise attributable to providing Building services, such as lighting and HVAC to
such public portions of the Building and/or the Project in normal Building operations during
standard Building hours of operation;




                    (xxxi) Any entertainment, dining or travel expenses for any purpose;




                    (xxxii) Any flowers, gifts, balloons, etc. provided to any entity whatsoever, to
include, but not limited to, Tenant, other tenants, employees, vendors, contractors,
prospective tenants and agents;




                    (xxxiii) Any “validated” parking for any person or entity;




                    (xxxiv) Any “finders fees”, brokerage commissions, job placement costs or job
advertising cost;




                    (xxxv) The cost of any magazine, newspaper, trade or other subscriptions;




                    (xxxvi) The cost of any training or incentive programs, other than for tenant
life safety information services;




                    (xxxvii) The cost of any “tenant relations” parties, events or promotion not
consented to by an authorized representative of Tenant in writing;




                    (xxxviii) “In-house” legal and/or accounting fees;




                    (xxxix) Reserves of any kind or for any purpose except as specifically
authorized in this Lease;




                    (xl) Any expenses which are expended for any other building in the Project as to
which Tenant has agreed to pay for assume and/or perform the work giving rise to such
expenses as to the Building under this Lease; and




                    (xli) Operating Expenses or Property Taxes applicable to any area located
outside the Project, except as otherwise permitted by this Lease.



          In the event any facilities, services or utilities used in connection with the Building and/or
the Project are provided from another location owned or operated by Landlord or vice versa, the
costs incurred by Landlord in connection therewith shall be allocated to Operating Expenses by
Landlord on a reasonably equitable basis.



     (k) Landlord further agrees that since Tenant is leasing the entire Building on a net basis,
no gross up provision or calculation shall be included or made in connection with this Lease.
Landlord agrees that (i)



9









 







Landlord will not collect or be entitled to collect Operating Expenses
from Tenant in an amount which is in excess of one hundred percent (100%) of the Operating Expenses
actually paid by Landlord in connection with the operation of the Building and/or the Project, and
(ii) except for Landlord’s management fee, Landlord shall make no profit from Landlord’s
collections of Operating Expenses. All assessments and premiums which are not specifically charged
to Tenant because of what Tenant has done, which can be paid by Landlord in installments, shall be
paid by Landlord in the maximum number of installments permitted by law and not included as
Operating Expenses except in the year in which the assessment or premium installment is actually
paid; provided, however, that if the prevailing practice in Comparable Buildings is to pay such
assessments or premiums on an earlier basis, and Landlord pays on such basis, such assessments or
premiums shall be included in Operating Expenses as paid by Landlord. Landlord shall not include
any imputed interest (except for interest actually paid) on such assessments or premiums in its
computation of Operating Expenses.



     (l) For the purpose of payment of Operating Expenses, to the extent Landlord pays Property
Taxes less frequently than monthly, the cost of same shall not be included in Operating Expenses
but shall be separately calculated, with Tenant being obligated to pay Tenant’s Share of same on
the later of five (5) business days after receipt of an invoice from Landlord or ten (10) days
prior to the date Landlord is obligated to pay same to the taxing authority.



     SECTION 4.3. [INTENTIONALLY DELETED]



ARTICLE V. USES




     SECTION 5.1. USE. Tenant understands that the Ground Lease permits certain uses of the
Premises and prohibits any other uses, and that any use of the Premises in violation of the Ground
Lease would cause Landlord material and irreparable harm. Tenant shall use the Premises only for
the purposes stated in Item 3 of the Basic Lease Provisions, to the extent also permitted under the
Ground Lease and by applicable laws and restrictions and pursuant to approvals to be obtained by
Tenant from all relevant and required governmental agencies and authorities. The uses permitted
under the Ground Lease are as follows: (a) medical and biotechnology equipment design,
engineering, manufacturing and assembly; (b) research activities, including research and
development laboratories; (c) research activities, including research laboratories, developmental
laboratories and related light manufacturing; (d) professional services serving high technology or
research activities and business, such as employment agencies, offices for accountants, attorneys,
engineers, photographers or artists, and sales offices for products and services; (e) computer
assembly, computer design, software design and communications, or computer networking; and (f)
accessory and incidental related uses, including cafeterias and auditoriums, and administrative,
professional and business offices (including, but not limited to, reception area, conference rooms,
private offices, showrooms and document rooms). The parties agree that any contrary use shall be
deemed to cause material and irreparable harm to Landlord and shall entitle Landlord to injunctive
relief in addition to any other available remedy. Tenant, at its expense, shall procure, maintain
and make available for Landlord’s inspection throughout the Term, all governmental approvals,
licenses and permits required for the proper and lawful conduct of Tenant’s permitted use of the
Premises. Tenant shall not do or permit anything to be done in or about the Premises which will in
any way interfere with the rights of other occupants of the Building or the Project, or use or
allow the Premises to be used for any unlawful purpose, or use the Premises in violation of the
Ground Lease, nor shall Tenant permit any public or private nuisance or commit any waste in the
Premises or the Project. In particular, Tenant shall not permit any use of the Property involving
any vibration, noise, sound or disturbance that is objectionable due to intermittence, beat,
frequency, shrillness or loudness; any lighting which does not comply with the requirements of
Landlord’s design guidelines; any electro-mechanical or electro-magnetic disturbance radiation; any
air or water pollution; any emission of odorous, noxious, caustic, or corrosive matter, whether
toxic or nontoxic, gas; any litter, dust, dirt or fly ash in excessive quantities; any unusual
firing, explosion or damaging or dangerous hazard, including the storage, display or sale of
explosives or fireworks; any junk yard, stock yard, distillation of bones, or animal raising,
storage, slaughter, or disposition of any kind; any drilling for excavation, refining and/or
removal of earth materials, oil gas, hydrocarbon substances, water, geothermal system, and any
other subsurface substances of any nature whatsoever; any dumping, disposal, incineration, or
reduction of animal remains, garbage or refuse of any nature whatsoever, other than handling or
reducing any such waste matter if actually produced at the Project from authorized uses and if
handled in a reasonably clean and sanitary manner; any auction, public sale, or similar operation;
and any commercial excavation of sand, gravel or other building or construction materials. Tenant
shall not perform any work or conduct any business whatsoever in the Project other than inside the
Premises. Tenant shall not do or permit to be done anything which will invalidate or increase the
cost of any insurance policy(ies) covering the Building, the Project and/or their contents, and
shall comply with all applicable insurance underwriters rules and the requirements of the Pacific
Fire Rating Bureau or any other organization performing a similar function. Tenant shall comply at
its expense with all present and future laws, ordinances, restrictions, regulations, orders, rules
and requirements of all governmental authorities that pertain to Tenant or its use of the Premises,
including without limitation all federal and state occupational health and safety requirements, and
all policies, procedures and regulations promulgated by Ground Lessor pertaining generally to the
use of portions of Ground Lessor’s real property leased for non-public purposes and to activities
taking place upon Ground Lessor’s real property, whether or not Tenant’s compliance will
necessitate expenditures or interfere with its use and enjoyment of the Premises. Tenant shall
comply at its expense with all present and future covenants, conditions, easements or restrictions
now or hereafter affecting or encumbering the Building and/or Project, and any amendments or modifications thereto,
including without limitation the payment by Tenant of any periodic or special dues or assessments
charged against the Premises or Tenant which may be allocated to the Premises or Tenant in
accordance with the provisions thereof. Tenant shall promptly upon demand reimburse Landlord for
any additional insurance premium charged by reason of Tenant’s failure to comply with the
provisions of this Section, and shall indemnify Landlord and Ground Lessor from any liability
and/or expense resulting from Tenant’s noncompliance.



     SECTION 5.2. SIGNS. Provided Tenant continues to lease the entire Building, Tenant shall have
the exclusive right to either: (i) one (1) exterior “eye brow” and one (1) exterior “building top”
signs on the Building, or



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(ii) two (2) exterior “building top” signs on the Building, in either
event for Tenant’s name and graphics to the extent permitted by the Signage Criteria (defined
below). All such exterior signage shall be in locations reasonably approved by Landlord or in the
location shown on Exhibit F, and shall be subject to Landlord’s right of prior approval
that such exterior signage is in compliance with the Signage Criteria. Except as provided in the
foregoing, Tenant shall not have the right to maintain signs in any location on or about the
Building(s) or the Project and shall not place or erect any signs that are visible from the
exterior of the Building, and Tenant reserves the right from time to time to install or not install
any permitted signs under this Lease (and to remove any signs it installs). The size, design,
graphics, material, style, color and other physical aspects of any permitted sign shall be subject
to Landlord’s written determination prior to installation that such signage has not been rejected
by the Ground Lessor and is in compliance with Landlord’s signage program for the Project in effect
and approved by the City of Irvine as of the date of Tenant’s installation of the applicable sign
(“Signage Criteria”). Prior to placing or erecting any such signs, Tenant shall obtain and deliver
to Landlord a copy of any applicable municipal or other governmental permits and approvals and
comply with any applicable insurance requirements for such signage. Tenant shall be responsible
for the cost of any permitted sign, including, without limitation, the fabrication, installation,
maintenance and removal thereof and the cost of any permits therefor. If Tenant fails to maintain
its sign in good condition, or if Tenant fails to remove same upon termination of this Lease and
repair and restore any damage caused by the sign or its removal and such failure continues for ten
(10) business days after notice from Landlord to Tenant of such failure, Landlord may do so at
Tenant’s expense. Landlord shall have the right to temporarily remove any signs in connection with
any repairs or maintenance in or upon the Building(s). The term “sign” as used in this Section
shall include all signs, designs, monuments, displays, advertising materials, logos, banners,
projected images, pennants, decals, pictures, notices, lettering, numerals or graphics. Landlord
agrees that Tenant’s signage shown on Exhibit F is deemed to meet the Signage Criteria.



     Tenant’s exterior signage rights hereunder shall be personal to the original Tenant named
herein and an Affiliate thereof, except that Landlord shall authorize a transfer of such rights to
a permitted assignee or subtenant if Landlord reasonably determines that such transfer would not
impair the first class nature of the Project.



     SECTION 5.3. HAZARDOUS MATERIALS.



     (a) For purposes of this Lease, the term “Hazardous Materials” means (i) any “hazardous
material” as defined in Section 25501(o) of the California Health and Safety Code, (ii)
hydrocarbons, polychlorinated biphenyls or asbestos, (iii) any toxic or hazardous materials,
substances, wastes or materials as defined pursuant to any other applicable state, federal or local
law or regulation, and (iv) any other substance or matter which may result in liability to any
person or entity as a result of such person’s possession, use, storage, release or distribution of
such substance or matter under any statutory or common law theory.



     (b) Tenant shall not cause or permit any Hazardous Materials to be brought upon, stored, used,
generated, released or disposed of on, under, from or about the Premises (including without
limitation the soil and groundwater thereunder) without the prior written consent of Landlord,
which consent may be given or withheld in Landlord’s sole and absolute discretion. Notwithstanding
the foregoing, Tenant shall have the right, without obtaining prior written consent of Landlord, to
utilize within the Premises a reasonable quantity of standard office products that may contain
Hazardous Materials (such as photocopy toner, “White Out”, and the like), provided
however, that (i) Tenant shall maintain such products in their original retail packaging,
shall follow all instructions on such packaging with respect to the storage, use and disposal of
such products, and shall otherwise comply with all applicable laws with respect to such products,
and (ii) all of the other terms and provisions of this Section 5.3 shall apply with respect to
Tenant’s storage, use and disposal of all such products. Tenant shall not cause or permit any
Hazardous Materials to be brought upon, stored, used, generated, released or disposed of on, under,
from or about the Premises (including without limitation the soil and groundwater thereunder)
without the prior written consent of Landlord, which consent may be given or withheld in Landlord’s
sole and absolute discretion. Notwithstanding the foregoing, Tenant shall have the right, without
obtaining prior written consent of Landlord, to utilize within the Premises a reasonable quantity
of standard office products that may contain Hazardous Materials (such as photocopy toner, “White
Out”, and the like), provided however, that (i) Tenant shall maintain such products in their
original retail packaging, shall follow all instructions on such packaging with respect to the
storage, use and disposal of such products, and shall otherwise comply with all applicable laws
with respect to such products, and (ii) all of the other terms and provisions of this Section 5.3
shall apply with respect to Tenant’s storage, use and disposal of all such products. Landlord may,
in its reasonable discretion, place such conditions as Landlord deems appropriate with respect to
Tenant’s use of any such Hazardous Materials, and may further require that Tenant demonstrate that
any such Hazardous Materials are necessary or useful to Tenant’s business and will be generated,
stored, used and disposed of in a manner that complies with all applicable laws and regulations
pertaining thereto and with good business practices. Notwithstanding the foregoing, Tenant may use
such materials as are necessary for Broadcom’s research and development operations as long as such
use(s) comply with all applicable laws.



     (c) Prior to the execution of this Lease, Tenant shall complete, execute and deliver to
Landlord an Environmental Questionnaire and Disclosure Statement (the “Environmental
Questionnaire”) in the form of Exhibit B attached hereto. The completed Environmental
Questionnaire shall be deemed incorporated into this Lease for all purposes, and Landlord shall be
entitled to rely fully on the information contained therein. On each anniversary of the
Commencement Date until the expiration or sooner termination of this Lease, Tenant shall disclose
to Landlord in writing the names and amounts of all Hazardous Materials which were stored,
generated, used, released and/or disposed of on, under or about the Premises for the twelve-month
period prior thereto, and which Tenant desires to store, generate, use, release and/or dispose of
on, under or about the Premises for the succeeding twelve-month period. In addition, to the extent
Tenant is permitted to utilize Hazardous Materials upon the Premises, Tenant shall promptly provide
Landlord with complete and legible copies of all the following



11









 







environmental documents relating thereto: reports filed pursuant to any self-reporting requirements; permit applications, permits,
monitoring reports, emergency response or action plans, workplace exposure and community exposure
warnings or notices and all other reports, disclosures, plans or documents (even those which may be
characterized as confidential) relating to water discharges, air pollution, waste generation or
disposal, and underground storage tanks for Hazardous Materials; orders, reports, notices, listings
and correspondence (even those which may be considered confidential) of or concerning the release,
investigation of, compliance, cleanup, remedial and corrective actions, and abatement of Hazardous
Materials; and all complaints, pleadings and other legal documents filed by or against Tenant
related to Tenant’s storage, generation, use, release and/or disposal of Hazardous Materials.



     (d) Landlord and its agents shall have the right, but not the obligation, to inspect, sample
and/or monitor the Premises and/or the soil or groundwater thereunder at any time to determine
whether Tenant is complying with the terms of this Section 5.3, and in connection therewith Tenant
shall provide Landlord with reasonable access to all facilities, records and personnel related
thereto, provided Landlord shall provide Tenant with reasonable prior notice. If Tenant is not in
compliance with any of the provisions of this Section 5.3, or in the event of a release of any
Hazardous Material on, under or about the Premises caused or permitted by Tenant, its agents,
employees, contractors, licensees or invitees, Landlord and its agents shall have the right, but
not the obligation, without limitation upon any of Landlord’s other rights and remedies under this
Lease, to immediately enter upon the Premises without notice in the case of emergency, and
otherwise on reasonable prior notice, and to discharge Tenant’s obligations under this Section 5.3
at Tenant’s expense, including without limitation the taking of emergency or long-term remedial
action. Landlord and its agents shall endeavor to minimize interference with Tenant’s business in
connection therewith, but shall not be liable for any such interference. In addition, Landlord, at
Tenant’s expense, shall have the right, but not the obligation, to join and participate in any
legal proceedings or actions initiated in connection with any claims arising out of the storage,
generation, use, release and/or disposal by Tenant or its agents, employees, contractors, licensees
or invitees of Hazardous Materials on, under, from or about the Premises.



     (e) If the presence of any Hazardous Materials on, under, from or about the Premises or the
Project caused by Tenant or its agents, employees, contractors, licensees or invitees results in
(i) injury to any person, (ii) injury to or any contamination of the Premises or the Project, or
(iii) injury to or contamination of any real or personal property wherever situated, Tenant, at its
expense, shall promptly take all actions necessary to return the Premises and the Project and any
other affected real or personal property owned by Landlord to the condition existing prior to the
introduction of such Hazardous Materials and to remedy or repair any such injury or contamination,
including without limitation, any cleanup, remediation, removal, disposal, neutralization or other
treatment of any such Hazardous Materials. Notwithstanding the foregoing, Tenant shall not,
without Landlord’s prior written consent, which consent shall not be unreasonably withheld, take
any remedial action in response to the presence of any Hazardous Materials on, from, under or about
the Premises or the Project or any other affected real or personal property owned by Landlord or
enter into any similar agreement, consent, decree or other compromise with any governmental agency
with respect to any Hazardous Materials claims; provided however, Landlord’s prior written consent
shall not be necessary in the event that the presence of Hazardous Materials on, under or about the
Premises or the Project or any other affected real or personal property owned by Landlord (i)
imposes an immediate threat to the health, safety or welfare of any individual and (ii) is of such
a nature that an immediate remedial response is necessary and it is not possible to obtain
Landlord’s consent before taking such action. To the fullest extent permitted by law, Tenant shall
indemnify, hold harmless, protect and defend (with attorneys reasonably acceptable to Landlord)
Landlord and any successors to all or any portion of Landlord’s interest in the Premises and the
Project and any other real or personal property owned by Landlord from and against any and all
liabilities, losses, damages, diminution in value, judgments, fines, demands, claims, recoveries,
deficiencies, costs and expenses (including without limitation attorneys’ fees, court costs and
other professional expenses), whether foreseeable or unforeseeable, arising directly or indirectly
out of the use, generation, storage, treatment, release, on- or off-site disposal or transportation
of Hazardous Materials on, into, from, under or about the Premises, the Building or the Project and
any other real or personal property owned by Landlord caused by Tenant, its agents, employees,
contractors, licensees or invitees. Such indemnity obligation shall specifically include, without
limitation, the cost of any required or necessary repair, restoration, cleanup or detoxification of
the Premises, the Building and the Project and any other real or personal property owned by
Landlord, the preparation of any closure or other required plans, whether or not such action is
required or necessary during the Term or after the expiration of this Lease, and any loss of rental
due to the inability to lease the Premises or any portion of the Building or Project as a result of
such Hazardous Materials or remediation thereof. If Landlord at any time discovers that Tenant or
its agents, employees, contractors, licensees or invitees may have caused or permitted the release
of a Hazardous Material on, under, from or about the Premises, the Building or the Project or any
other real or personal property owned by Landlord, Tenant shall, at Landlord’s request, immediately
prepare and submit to Landlord a comprehensive plan, subject to Landlord’s approval, specifying the
actions to be taken by Tenant to return the Premises, the Building or the Project or any other real
or personal property owned by Landlord to the condition existing prior to the introduction of such
Hazardous Materials. Upon Landlord’s approval of such cleanup plan, Tenant shall, at its expense,
and without limitation of any rights and remedies of Landlord under this Lease or at law or in
equity, immediately implement such plan and proceed to cleanup such Hazardous Materials in
accordance with all applicable laws and as required by such plan and this Lease. The provisions of this
Section 5.3(e) shall expressly survive the expiration or sooner termination of this Lease.



     (f) Landlord hereby discloses to Tenant, and Tenant hereby acknowledges, certain facts
relating to Hazardous Materials at the Project known by Landlord to exist as of the date of this
Lease, as more particularly described in Exhibit C attached hereto. Tenant shall have no
liability or responsibility with respect to the Hazardous Materials facts described in Exhibit
C, nor with respect to any Hazardous Materials which Tenant proves were not caused or placed on
the Premises by Tenant, its agents, employees, contractors, licensees or invitees. Notwithstanding
the preceding two sentences, Tenant agrees to notify its agents, employees, contractors, licensees,
and invitees of any exposure or potential exposure to Hazardous Materials at the Premises that
Landlord brings to Tenant’s attention. Landlord hereby represents and warrants that to the best of
Landlord’s knowledge,



12









 







other than as set forth in Exhibit C, as of the date of this Lease,
no other Hazardous Materials are present in, on or around the Building or the Project. Landlord
agrees to indemnify and hold harmless Tenant and Tenant’s employees, agents, directors, officers
and partners from claims arising from the breach of the warranty contained herein. Nothing in this
Section or this Lease shall require Tenant to indemnify Landlord with respect to, or clean up or
remediate any Hazardous Materials which were on or in the Premises, the Building or the Project
prior to the date this Lease was executed or which were placed on or in the Premises, the Building
or the Project by anyone other than Tenant or Tenant’s agents, contractors, subtenants or
representatives.



ARTICLE VI. COMMON AREAS; SERVICES




     SECTION 6.1. UTILITIES AND SERVICES. Tenant shall be responsible for and shall pay promptly,
directly to the appropriate supplier, all charges for water, gas, electricity, sewer, heat, light,
power, telephone, telecommunications service, refuse pickup, janitorial service, interior landscape
maintenance, interior and exterior pest control, interior and exterior window washing, security
services, exterior plumbing (back flows testing), and all other utilities, materials and services
furnished directly to Tenant or the Premises or used by Tenant in, on or about the Premises during
the Term, together with any taxes thereon. Tenant shall provide whatever janitorial and security
services it deems appropriate for the Premises and Landlord shall have no responsibility for and
shall not provide janitorial services to the Premises unless requested to do so by Tenant. If any
utilities or services are not separately metered or assessed to Tenant, Landlord shall make a
reasonable determination of Tenant’s proportionate share of the Actual Cost (as hereinafter
defined) of such utilities and services, and Tenant shall pay such amount to Landlord, as an item
of additional rent, within thirty (30) days after receipt of Landlord’s statement or invoice
therefor. For purposes of this Lease, the term “Actual Cost” shall mean an amount equal to actual
incremental cost to Landlord to provide the applicable service or utility to Tenant without markup
for profit. Alternatively, Landlord may elect to include such cost in the definition of Site Costs
in which event Tenant shall pay Tenant’s proportionate share of such costs in the manner set forth
in Section 4.2. Tenant shall also pay to Landlord as an item of additional rent, within twenty
(20) days after receipt of Landlord’s annual statement or invoice therefor, an hourly charge of
Five Cents ($.05) per ton (which shall be in addition to the electricity charge paid to the utility
provider) for Tenant’s “after hours” usage of each HVAC unit servicing the Premises. “After hours”
shall mean more than three hundred (300) hours per ton of compressor usage of each HVAC unit
servicing the Premises during any month during the Term, and shall be determined based upon the
average monthly operation of the applicable HVAC unit over each successive twelve (12) month period
commencing as of the Commencement Date of the Lease (or the applicable portion of that annual
period with respect to the final partial Lease year). Such monthly usage shall be determined by
Landlord based upon readings from HVAC meters installed by Landlord. In turn, the average monthly
usage levels of each class (by tonnage) of HVAC unit serving the Premises shall be aggregated and
averaged so that excess use by Tenant of a particular unit will be offset by a lower usage level of
another unit of the same class over the applicable billing cycle. Landlord shall not be liable for
damages or otherwise for any failure or interruption of any utility or other service furnished to
the Premises, and no such failure or interruption shall be deemed an eviction or entitle Tenant to
terminate this Lease or withhold or abate any rent due hereunder except as otherwise provided in
this Lease. Landlord shall at all reasonable times have free access to the Building and Premises
to install, maintain, repair, replace or remove all electrical and mechanical installations of
Landlord; provided, however, that if such electrical and/or mechanical installations are located in
the Premises, Landlord shall provide Tenant with reasonable prior notice of this intent to access
same and shall follow Tenant’s reasonable instructions as to the time and manner such work is to be
performed so as to minimize disruption to Tenant’s business operations.



     Notwithstanding the foregoing, if for more than five (5) consecutive days following written
notice to Landlord (the “Eligibility Period”), (a) there is no HVAC or electricity service to all
or a portion of the Premises, or such an interruption of other essential utilities and building
services, such as fire protection or water, (b) there is any repair, maintenance or alteration
performed by Landlord, and/or (c) there is any failure by Landlord to provide Tenant with access to
the Premises or the parking areas, so that Tenant is prevented from using and does not use all or a
portion of the Premises, then provided such interruption of services is not attributable to the
fault or neglect of Tenant, its agents, employees, contractors or subtenants or the failure by
Tenant to fulfill its responsibilities hereunder, Tenant’s rent (inclusive of Basic Rent and
Operating Expenses) shall thereafter be abated in the same proportion that the Floor Area of the
Premises rendered unusable from time to time bears to the total Floor Area of the Premises until
the Premises are again usable by Tenant. However, in the event that Tenant is prevented from
conducting, and does not conduct, its business in any portion of the Premises for a period of time
in excess of the Eligibility Period, and the remaining portion of the Building is not sufficient to
allow Tenant to effectively conduct its business therein, and if Tenant does not conduct its
business from such remaining portion, then for such time after expiration of the Eligibility Period
during which Tenant is so prevented from effectively conducting its business therein, the rent for
the entire Building shall be abated; provided, however, if Tenant reoccupies and conducts its
business from any portion of the Building during such period, the rent allocable to such reoccupied
portion, based on the proportion that the rentable area of such reoccupied portion of the Building
bears to the total rentable area of the Building, shall be payable by Tenant from the date such
business operations commence. The foregoing provisions shall be Tenant’s sole recourse and remedy in the event of such an
interruption of services, and shall not apply in case of damage to, or destruction of, the Premises
(which shall be governed by the provisions of Article XI of the Lease). Any disputes concerning
the foregoing provisions shall be submitted to and resolved by arbitration pursuant to Section 22.7
of this Lease.



     SECTION 6.2. OPERATION AND MAINTENANCE OF COMMON AREAS. During the Term, Landlord shall
operate and maintain all Common Areas within the Project in a “first class” manner and shall
maintain the Project in compliance with Section 7.2 below. The term “Common Areas” shall mean all
areas of the Project outside the footprint of the Building and other buildings in the Project which
are not held for exclusive use by persons entitled to occupy space, and all other appurtenant areas
and improvements within the Project provided by Landlord for the common use of Landlord and tenants
and their respective employees and invitees, including without limitation parking areas and
structures, driveways, sidewalks, landscaped and planted areas, hallways and



13









 







interior stairwells not located within the Premises, common electrical rooms and roof access entries, common entrances
and lobbies, elevators, and restrooms not located within the premises of any tenant.



     SECTION 6.3. USE OF COMMON AREAS The occupancy by Tenant of the Premises shall include the use
of the Common Areas in common with Landlord and with all others for whose convenience and use the
Common Areas may be provided by Landlord, subject, however, to compliance with all rules and
regulations as are prescribed from time to time by Landlord. All costs incurred by Landlord for
the maintenance and operation of the Common Areas shall be included in Site Costs except to the
extent any particular cost incurred is related to or associated with Tenant and can be charged
directly to Tenant whereupon Landlord shall exclude from Site Costs the comparable charges
attributable to other tenants. Tenant shall keep the Common Areas clear of any obstruction or
unauthorized use related to Tenant’s operations or use of Premises, including without limitation,
planters and furniture. Unless caused by the negligence or willful misconduct of Landlord or its
agents, contractors or employees and not covered by Tenant’s insurance, nothing in this Lease shall
be deemed to impose liability upon Landlord for any damage to, or loss of the property of, Tenant.
As long as Tenant’s access to and/or use of the Premises is not adversely affected, Landlord may
temporarily close any portion of the Common Areas for repairs, remodeling and/or alterations, to
prevent a public dedication or the accrual of prescriptive rights, or for any other reason deemed
sufficient by Landlord, without liability to Landlord.



     SECTION 6.4. PARKING. Without the obligation to pay additional parking charges therefor
during the Lease Term, Tenant shall be entitled to the number of vehicle parking spaces set forth
in Item 15 of the Basic Lease Provisions, which spaces shall be unreserved and unassigned, on those
portions of the Common Areas designated by Landlord for parking. Landlord shall designate and mark
ten (10) of such spaces as “reserved” for Tenant. Tenant shall not use more parking spaces than
such number. All parking spaces shall be used only for parking of vehicles no larger than full
size passenger automobiles, sports utility vehicles, pickup trucks, carpool vehicles and vans.
Tenant shall not permit or allow any vehicles that belong to or are controlled by Tenant or
Tenant’s employees, suppliers, shippers, customers or invitees to be loaded, unloaded or parked in
areas other than those reasonably designated by Landlord for such activities. Parking within the
Common Areas shall be limited to striped parking stalls, and no parking shall be permitted in any
driveways, access ways or in any area which would prohibit or impede the free flow of traffic
within the Common Areas. There shall be no parking of any vehicles for longer than a forty-eight
(48) hour period except in situations where an employee leaves his or her car in the parking area
while on a business trip, vacation or because of personal or business necessity, the parties hereby
otherwise agreeing that the parking area is not to be used as a storage facility. Nothing
contained in this Lease shall be deemed to create liability upon Landlord to Tenant for any damage
to motor vehicles of visitors or employees, for any loss of property from within those motor
vehicles, or for any injury to Tenant unless ultimately determined to be caused by the sole active
negligence or willful misconduct of Landlord or its agents, contractors or employees. Landlord
shall cause the parking area to be lighted at night and the landscaping will be subject to Tenant’s
consent, not to be unreasonably withheld, so as to reduce the likelihood that the trees and bushes
will “shed” on vehicles. Landlord shall have the right to establish, and from time to time amend,
and to enforce against all users all reasonable rules and regulations that Landlord may reasonably
deem necessary and advisable for the proper and efficient operation and maintenance of parking
within the Common Areas. Landlord shall have the obligation to construct and maintain the parking
areas in good condition and operate lighting facilities within the parking areas; and to do and
perform such other acts in and to the parking areas and improvements therein as, in the use of good
business judgment, Landlord shall determine to be advisable. Any person using the parking area
shall observe all directional signs and arrows and any posted speed limits. Parking areas shall be
used only for parking vehicles, except that washing, waxing, cleaning or servicing of vehicles may
be performed by or on behalf of Tenant as to vehicles that belong to Tenant or its employees in
locations within the parking areas that will not interfere with the rights of other tenants of the
Project. Subject to the provisions of Section 10.5, Tenant shall be liable for any damage to the
parking areas caused by Tenant or Tenant’s employees, suppliers, shippers, customers or invitees,
including without limitation damage from excess oil leakage. Tenant shall have no right to install
any fixtures, equipment or personal property in the parking areas or in the other Common Areas of
the Project.



     Notwithstanding anything contained in the Lease, Tenant’s parking privileges shall be
available to Tenant twenty-four (24) hours per day, seven (7) days per week, every day of the year,
in any location where Tenant shall maintain its parking privileges. Tenant’s parking shall be
non-tandem. In addition, Tenant may load and unload trucks within the loading areas of the Project.



     SECTION 6.5. CHANGES AND ADDITIONS BY LANDLORD. As long as Tenant’s access to and/or use of
the Premises and the Building shall not be adversely affected, Landlord reserves the right to make
alterations or additions to the Building or the Project, or to the attendant fixtures and
equipment. Landlord may at any time relocate or remove parking areas (so long as reasonable substitute parking is provided to
Tenant) and other Common Areas, and may add buildings and areas to the Project from time to time as
long as Tenant’s use of the Project and Common Areas is not adversely affected. Subject to the
provisions of Sections 6.1 and 22.9 of this Lease, no change shall entitle Tenant to any abatement
of rent or other claim against Landlord, provided that the change does not deprive Tenant of
reasonable access to or use of the Premises.



     SECTION 6.6. LICENSE FOR GENERATOR. At any time during the Term, Tenant shall have the right
to install, in locations designated by Landlord, one (1) generator for the Building to supply
back-up electrical power to the Premises in the event of a reduction or interruption in the supply
of normal electrical power to the Premises. Tenant’s rights under this Section 6.6 shall be
subject to the following additional terms and provisions: (a) the exercise of Tenant’s rights
under this Section shall be subject to Tenant’s compliance, at its sole cost and expense, with all
laws and acquisition of all approvals and permits required, from applicable governmental
authorities and, if required, from Ground Lessor; (b) the installation, maintenance, repair,
monitoring and removal of the generators shall be at Tenant’s sole cost and expense; (c) if
installed in the parking areas, the space taken up by the generators shall be counted towards the
parking spaces allocated to Tenant pursuant to Item 15 of the Basic



14









 







Lease Provisions; (d) Tenant shall comply with all laws pertaining to the operation, maintenance and monitoring of generators,
along with any additional reasonable requirements imposed by Landlord in connection therewith
(including, without limitation, Landlord’s prior approval of the screening of the generators and
operational issues relating to the use of Hazardous Materials in connection therewith), and shall
provide Landlord with evidence of such compliance in such form and at such times as Landlord
requires; (e) Tenant shall maintain and repair the generators, and shall be responsible for all
reporting, monitoring, clean up and remediation activities and costs pertaining to the generator
(including, without limitation, the obligations under Section 5.3 of the Lease respecting Hazardous
Materials used, stored and/or released from the generator); (f) Tenant shall remove the generators
and attendant screening at the expiration or earlier termination of the Lease in accordance with
the provisions of Section 15.3 of the Lease (and shall obtain a customary closure certificate from
applicable governmental authorities in connection with such removal), and shall repair any damage
to the Building or Common Areas that occurs in connection with such removal. Landlord agrees to
reasonably cooperate with Tenant, but at no additional cost or expense to Landlord, in obtaining
any required permits and approvals for the generators.



ARTICLE VII. MAINTAINING THE PREMISES




     SECTION 7.1. TENANT’S MAINTENANCE AND REPAIR. Tenant at its sole expense shall make all
repairs and replacements necessary to keep the Premises and the Building (excluding therefrom the
Building Structure which is Landlord’s responsibility hereunder but including all Building Systems)
in good condition, excepting ordinary wear and tear and damage by casualty, including without
limitation all interior glass, interior doors, door closures, hardware, fixtures, electrical,
plumbing, fire life safety, access control and HVAC equipment and systems, fire extinguisher
equipment and other equipment installed in the Premises and all Alterations constructed by Tenant
pursuant to Section 7.3 below. Any damage or deterioration of the Premises shall not be deemed
ordinary wear and tear if the same could have been prevented by good maintenance practices by
Tenant. In maintaining the Building Systems and HVAC equipment, Tenant shall comply with the
normal maintenance standards and specifications followed by Landlord (which maintenance standards
may be reasonably enhanced by Landlord to reflect HVAC usage by Tenant that exceeds normal office
standards) and with all requirements imposed by equipment manufacturers, and shall use qualified
personnel and/or vendors to perform any maintenance or repair work. Tenant shall permit
representatives of Landlord access on a regular basis to inspect the equipment and systems and
Tenant’s maintenance thereof. Should Landlord reasonably determine that Tenant is not properly
maintaining the Building Systems and equipment, then subject to Tenant’s right to contest such
determination pursuant to Section 22.7 below, and if such failure shall continue for ten (10)
business days after notice from Landlord which ten (10) business day period will be extended for
force majeure occurences as described in Section 20.9, Landlord may elect thereafter to maintain
same and the costs thereof shall be included within Operating Expenses. Landlord may also elect to
undertake such maintenance responsibilities if the original Tenant named herein or an Affiliate
thereof is no longer occupying at least thirty percent (30%) of the Premises. As part of its
maintenance obligations hereunder, Tenant shall assure that the Premises remain free of moisture
conditions which could cause mold and promptly repair any moisture conditions occurring within the
Premises, and Tenant shall, at Landlord’s request, provide Landlord with copies of all maintenance
schedules, reports and notices prepared by, for or on behalf of Tenant except to the extent such
conditions existed at the time the Premises were delivered to Tenant and to such extent, the
liability and responsibilities shall remain with Landlord. Tenant shall permit representatives
of Landlord access on a regular basis to inspect the equipment and systems and to fulfill its
maintenance and repair obligations. All repairs and replacements shall be at least equal in
quality to the original work, shall be made only by a licensed contractor and shall be made only at
the time or times reasonably approved by Landlord, taking into account that Tenant may be the sole
occupant of the Building. Any contractor utilized by Tenant shall be subject to Landlord’s
reasonable requirements for contractors, as modified from time to time. Landlord may impose
reasonable restrictions and requirements with respect to repairs, as provided in Section 7.3, and
the provisions of Section 7.4 shall apply to all repairs. If Tenant fails to properly maintain
and/or repair the Premises as herein provided following Landlord’s notice and the expiration of the
applicable cure period (or earlier if Landlord determines that such work must be performed prior to
such time in order to avoid damage to the Premises or Building or other detriment), then Landlord
may elect, but shall have no obligation, to perform any repair or maintenance required hereunder on
behalf of Tenant and at Tenant’s expense, and Tenant shall reimburse Landlord upon demand for all
costs incurred upon submission of an invoice.



     SECTION 7.2. LANDLORD’S MAINTENANCE AND REPAIR. Subject to Sections 6.1 and Section 7.1 and
Article XI, Landlord shall provide service, maintenance and repair with respect to the Building
Structure, including but not limited to the roof, foundations, and footings, Common Areas, exterior
lighting, and the exterior surfaces of the exterior walls of the Building (including exterior
glass), except that Tenant at its expense shall make all repairs which Landlord deems reasonably
necessary as a result of the act or negligence of Tenant, its agents, employees, invitees,
subtenants or contractors; provided, however, that Tenant shall be entitled to reimbursement for
the cost of any such repairs to the extent the costs of such repairs is covered by insurance
carried (or required to be carried) by Landlord as part of Operating Expenses. Landlord shall have
the right to employ or designate any reputable person or firm, including any employee or agent of
Landlord or any of Landlord’s affiliates or divisions, to perform any service, repair or
maintenance function. Landlord need not make any other improvements or repairs except as
specifically required under this Lease, and nothing contained in this Section shall limit
Landlord’s right to reimbursement from Tenant for maintenance, repair costs and replacement costs
as provided in Section 10.5 and elsewhere in this Lease. Except as set forth herein, Tenant
understands that it shall not make repairs at Landlord’s expense or by rental offset. Tenant
further understands that Landlord shall not be required to make any repairs to the roof,
foundations, footings, or the exterior surfaces of the exterior walls of the Building (excluding
exterior glass), unless and until either Tenant has notified Landlord in writing of the need for
such repair or Landlord shall otherwise have received notification thereof, and Landlord shall have
a reasonable period of time thereafter to commence and complete said repair, if warranted. All
costs of any maintenance, repairs and replacement on the part of Landlord provided hereunder shall
be considered part of Site Costs subject to the provisions of Section 4.2.



15









 





     Notwithstanding any provision in this Lease to the contrary, if Landlord shall fail to
commence any repair obligations required under this Lease with respect to the Building leased by
Tenant within ten (10) business days following Tenant’s written request for such repairs and
thereafter complete such repairs with commercially reasonable due diligence, or if Landlord shall
fail to commence any emergency repairs (i.e., repairs required to avoid imminent injury or damage
or cessation of business) with respect to any such full Building being leased by Tenant within
three (3) business days following written notice from Tenant and thereafter complete such repairs
with commercially reasonable due diligence, then Tenant may elect to make repairs to such
Building(s) at Landlord’s expense by complying with the following provisions. Before making any
such repair, and following the expiration of the applicable period set forth above, Tenant shall
deliver to Landlord a notice for the need for such repair (“Self Help Notice”), which notice shall
specifically advise Landlord that Tenant intends to exercise its self help right hereunder. Should
Landlord fail, within five (5) business days following receipt of the Self Help Notice (or within
two (2) business days following notice in the event of necessary emergency repairs), to commence
the necessary repair or to make other arrangements reasonably satisfactory to Tenant, then Tenant
shall have the right to make such repair on behalf of Landlord. Landlord agrees that Tenant will
have access to the Building Systems and Building Structure within the Building to the extent
necessary to perform the work contemplated by this Section. In the event Tenant takes such action,
and such work will affect the Building Structure and/or the Building Systems, Tenant shall use only
those contractors used or approved by Landlord in the Building for work on such Building Structure
or Building Systems unless such contractors are unwilling or unable to immediately perform, or
timely and competitively perform, such work, in which event Tenant may utilize the services of any
other qualified contractor which normally and regularly performs similar work in Comparable
Buildings in the area. Tenant shall provide Landlord with a reasonably detailed invoice together
with reasonable supporting evidence of the costs reasonably and actually incurred. Landlord shall
either reimburse Tenant for the reasonable costs of such repairs within thirty (30) days following
receipt of Tenant’s invoice for such costs or deliver a written objection stating with specificity
the reasons Landlord disputes Tenant’s actions or the amounts. If Landlord fails to pay Tenant’s
invoice within such thirty (30) day period or deliver a written objection, Tenant shall have the
right to offset such costs against Basic Rent next coming due under this Lease. If Landlord
delivers to Tenant, within thirty (30) days, a written objection to the payment of such invoice,
setting forth Landlord’s reasons for its claim that such action did not have to be taken by
Landlord pursuant to the terms of this Lease or that the charges are excessive (in which case
Landlord shall pay the amount it contends would not have been excessive), then Tenant shall not
then be entitled to offset any amount from rent, but as Tenant’s sole remedy, the dispute shall be
resolved by arbitration pursuant to Section 22.7 hereof. If Tenant prevails in the arbitration,
the amount of the award shall include interest at the Interest Rate (from the time of each
expenditure by Tenant until the date Tenant receives such amount by payment or offset and
attorneys’ fees and related costs). If Landlord fails to pay the amount of the award within thirty
(30) days from the date of the award, the amount of the award may be deducted by Tenant from the
Basic Rent next due and owing under the Lease. Tenant shall be responsible for obtaining any
necessary governmental permits before commencing the repair work. Tenant shall be liable for any
damage, loss or injury resulting from said work to the extent of Tenant’s or its agent’s,
employee’s or contractor’s negligence.



     SECTION 7.3. ALTERATIONS. Tenant shall make no alterations, additions, fixtures or
improvements (“Alterations”) to the Premises or the Building without the prior written consent of
Landlord, which consent shall not be withheld unless, and only to the extent that, a “Design
Problem” exists as defined in the Work Letter attached as Exhibit X hereto.
Notwithstanding the foregoing, Landlord’s consent shall not be required for any cosmetic
alterations, additions or improvements to the Premises which cost less than Fifty Thousand Dollars
($50,000.00) in the aggregate during any twelve (12) month period and which do not (i) create a
Design Problem or incorporate Non-Standard Improvements (as those terms are defined in Exhibit X),
or (ii) require any governmental permit as a prerequisite to the construction thereof. Landlord
shall in all events, whether or not Landlord’s consent is required, have the right to reasonably
approve the contractor performing the installation and removal of Alterations and Tenant shall not
permit any contractor not approved by Landlord to perform any work on the Premises or on the
Building. Tenant shall obtain all required permits for the installation and removal of Alterations
and Replacements and shall perform the installation and removal of Alterations and Replacements in
compliance with all applicable laws, regulations and ordinances, including without limitation the
ADA, all covenants, conditions and restrictions affecting the Project, and the Rules and
Regulations as described in Article XVII. Landlord shall be entitled to a supervision fee in the
amount of five percent (5%) of the cost of the Alterations; provided that no such fee shall be
imposed for any Alteration project that does not require a governmental permit or that costs less
than Fifty Thousand Dollars ($50,000.00) in the aggregate. Under no circumstances shall Tenant
make any Alterations which incorporate any Hazardous Materials, including without limitation asbestos-containing construction materials into the Premises, the Building or the
Common Area. If any governmental entity requires, as a condition to any proposed Alterations by
Tenant, that improvements be made to the Common Areas, and if Landlord consents to such
improvements to the Common Areas pursuant to the Consent standard set forth herein, then Tenant
shall, at Tenant’s sole expense, make such required improvements to the Common Areas in such
manner, utilizing such materials, and with such contractors, architects and engineers as Landlord
may require in its reasonable discretion; provided, however, that Tenant shall not be required to
make any modification of or addition to the Building Structure, Building Systems and/or the
exterior portions of the Site (including without limitation, the Common Areas) except and to the
extent required because of (a) Tenant’s use of all or a portion of the Premises for other than
normal and customary office operations, or (b) Non-Standard Improvements installed by Tenant. Any
request for Landlord’s consent to any proposed Alterations shall be made in writing and shall
contain architectural plans describing the work in detail reasonably satisfactory to Landlord.
Should the work proposed by Tenant and consented to by Landlord modify the basic floor plan of the
Premises, then Tenant shall, at its expense, furnish Landlord with as-built drawings and CAD disks
compatible with Landlord’s systems and standards. Unless Landlord otherwise agrees in writing, all
Alterations permanently affixed to the Premises, the Building or to the Common Area (excluding
moveable trade fixtures, equipment and furniture), including without limitation all Tenant
Improvements constructed pursuant to the Work Letter (except as otherwise provided in the Work
Letter), shall become the property of Landlord and shall be surrendered with the Premises at the
end of the Term; provided that Landlord may, by notice to Tenant given at the time Tenant requests
Landlord’s consent to any Alteration, require Tenant to



16









 







remove by the Expiration Date, or sooner termination date of this Lease, all or any of the Alterations installed either by Tenant or by
Landlord at Tenant’s request, and to repair any damage to the Premises, the Building or the Common
Area arising from that removal. Notwithstanding the foregoing, Tenant shall not be required to
remove the Tenant Improvements described in the approved “Preliminary Plan” as defined in
Exhibit X attached hereto, nor any Alterations which are normal and customary business
office improvements and which either: (1) utilize only “Standard Improvements” (as defined
in Exhibit X), or (2) are not a “Design Problem”. Tenant may, in connection with making
any Alterations approved by Landlord, remove, alter or replace any permanent alterations, additions
or improvements previously made to the Premises prior to the Commencement Date of this Lease.



     SECTION 7.4. MECHANIC’S LIENS. Tenant shall remove any liens arising out of any work
performed, materials furnished, or obligations incurred by or for Tenant. Upon request by
Landlord, Tenant shall promptly (but in no event later than five (5) business days following such
request) cause any such lien to be released by any legal means and/or by posting a bond in
accordance with California Civil Code Section 3143 or any successor statute. In the event that
Tenant shall not, within thirty (30) days following notice of the imposition of any lien, cause the
lien to be released of record by payment or posting of a proper bond, Landlord shall have, in
addition to all other available remedies, the right to cause the lien to be released by any means
it deems proper, including payment of or defense against the claim giving rise to the lien. All
expenses so incurred by Landlord, including Landlord’s attorneys’ fees, and any consequential or
other damages incurred by Landlord arising out of such lien, shall be reimbursed by Tenant upon
demand, together with interest from the date of payment by Landlord at the maximum rate permitted
by law until paid. Tenant shall give Landlord no less than twenty (20) days’ prior notice in
writing before commencing construction of any kind on the Premises or Common Area and shall again
notify Landlord that construction has commenced, such notice to be given on the actual date on
which construction commences, so that Landlord may post and maintain notices of nonresponsibility
on the Premises or Common Area, as applicable, which notices Landlord shall have the right to post
and which Tenant agrees it shall not disturb. Tenant shall also provide Landlord notice in writing
within ten (10) days following the date on which such work is substantially completed. The
provisions of this Section shall expressly survive the expiration or sooner termination of this
Lease



     SECTION 7.5. ENTRY AND INSPECTION. Landlord shall at all reasonable times, upon reasonable
prior written notice (except in emergencies, when no notice shall be required), have the right to
enter the Premises to inspect them, to supply services in accordance with this Lease, to perform
any work required or permitted to be performed by Landlord within the Premises, to have access to
install, repair, maintain, replace or remove all electrical and mechanical installations of
Landlord and to protect the interests of Landlord in the Premises, and to submit the Premises to
prospective or actual purchasers or encumbrance holders (or, during the last eighteen (18) months
of the Term or when an uncured Tenant Event of Default exists, to prospective tenants), all without
being deemed to have caused an eviction of Tenant and without abatement of rent except as provided
elsewhere in this Lease. Except for mutually agreed upon times for regularly scheduled services
(such as janitorial services) and except in the event of emergencies, Landlord agrees that Tenant
may elect to have a representative accompany any entry by Landlord. Furthermore, any entry by
Landlord shall be accomplished as expeditiously as reasonably possible and in a manner so as to
cause as little interference to Tenant as reasonably possible. Landlord shall have the right, if
desired, to retain a key which unlocks all of the doors in the Premises, excluding Tenant’s vaults,
safes, and Secured Areas (as defined below) and Landlord shall have the right to use any and all
means which Landlord may deem proper to open the doors in an emergency in order to obtain entry to
the Premises, and any entry to the Premises obtained by Landlord shall not under any circumstances
be deemed to be a forcible or unlawful entry into, or a detainer of, the Premises, or any eviction
of Tenant from the Premises. Notwithstanding anything to the contrary set forth above, Tenant may
reasonably and in good faith designate certain areas of the Premises as “Secured Areas” should
Tenant require such areas for the purpose of securing certain valuable property or confidential
information. Landlord may not enter such Secured Areas except in the case of emergency or in the
event of a Landlord inspection, in which case Landlord shall provide Tenant with ten (10) days’
prior written notice of the specific date and time of such Landlord inspection.



     SECTION 7.6. COMMUNICATIONS EQUIPMENT. During the Term of this Lease, Landlord hereby grants
to Tenant a license (the “License”) to install, maintain and operate on the roof of the Building
antennas and accompanying communications equipment not exceeding forty-eight inches (48”) in height
as to each antenna (collectively, the “Antenna”), in accordance with and subject to the terms and
conditions set forth below. The Antenna shall be installed at a location designated by Landlord and reasonably acceptable to Tenant (“Licensed Area”). Except for
equipment of the Landlord necessary to service the Building, no one other than Tenant shall have
the right to use the roofs of the Building leased by Tenant. The Licensed Area shall be considered
to be a part of the Premises for all purposes under the Lease (other than the payment of Basic Rent
and Operating Expenses), and except as otherwise expressly provided in this Section 7.6 all
provisions applicable to the use of the Premises under the Lease shall apply to the Licensed Area
and its use by Tenant.



               (1) Tenant shall not be obligated to pay any license fee for the use of the Licensed Area
pursuant to this Section 7.6 during the Term of this Lease;



               (2) Tenant shall use the Licensed Area only for the installation, operation, repair,
replacement and maintenance of the Antenna and the necessary mechanical and electrical equipment to
service said Antenna and for no other use or purpose. The installation of the Antenna and all
equipment and facilities related thereto, including any required conduit from the Premises to the
Antenna, shall be deemed to constitute an alteration subject to the provisions of Section 7.3 of
the Lease, provided that Landlord shall not withhold its approval of same unless a Design Problems
exist. Landlord may require appropriate screening for the Antenna as a condition of Landlord’s
approval of the installation of the Antenna;



               (3) The Antenna shall be used only for transmitting and/or receiving data, audio and/or video
signals to and from Tenant’s facilities within the Premises for Tenant’s use, and shall not be used
or permitted to be



17









 




used by Tenant for purposes of broadcasting signals to the public or to provide
commercial telecommunications or other communications transmitting or receiving services to any
third parties;




               (4) In the event any other communications system or broadcast or receiving facilities are
operating in the area, Tenant shall at all times during the term of the License take such
reasonable steps to conduct its operations so as to ensure that such other systems or facilities
shall not be subjected to harmful interference as a result of such operations by Tenant. Upon
notification from Landlord of any such interference, Tenant agrees to immediately take the
necessary steps to correct such situation, and Tenant’s failure to do so shall be deemed a default
under the terms of this Lease.



               (5) During the term of the License, Tenant shall comply with any standards promulgated by
applicable governmental authorities or otherwise reasonably established by Landlord regarding the
generation of electromagnetic fields. Any claim or liability resulting from the use of the Antenna
or the Licensed Area shall be subject to the indemnification provisions of this Lease applicable to
Tenant’s use of the Premises;



               (6) During the term of the License, Tenant shall pay all taxes attributable to the Antenna and
other equipment owned and installed by Tenant, and Tenant shall assure and provide Landlord with
evidence that the Licensed Area and Tenant’s use thereof are subject to the insurance coverages
otherwise required to be maintained by Tenant as to the Premises pursuant to Exhibit D; and



               (7) Upon the expiration or sooner termination of the Lease, Tenant shall remove the Antenna
and all related equipment and facilities, including any conduit from the Premises to the Antenna,
from the Licensed Area and any other portions of the Building within or upon which the same may be
installed, and shall restore the Licensed Area and all other areas affected by such removal to
their original condition, reasonable wear and tear excepted, all at its sole cost and expense.



     SECTION 7.7. COMMUNICATION VENDORS. Tenant shall have the right to select all required
communications vendors for the Premises, and such vendors shall be allowed reasonable access to the
Buildings and the Common Areas and the risers within the Building without charge (including
easements, if necessary) to supply communications service during the Term of this Lease.



ARTICLE VIII. TAXES AND ASSESSMENTS ON TENANT’S PROPERTY




     Tenant shall be liable for and shall pay, at least ten (10) days before delinquency, all taxes
and assessments levied against all personal property of Tenant located in the Premises, and, if
required by Landlord, against all improvements to the Premises made by Landlord (at Tenant’s
request) or Tenant which are above Landlord’s Project standard in quality and/or quantity for
comparable space within the Project (“Above Standard Improvements”), and against any Alterations
(as defined in Section 7.3) made to the Premises or the Building by or on behalf of Tenant. If
possible, Tenant shall cause its personal property, Above Standard Improvements and Alterations to
be assessed and billed separately from the real property of which the Premises form a part. If any
taxes required to be paid by Tenant on Tenant’s personal property, Above Standard Improvements
and/or Alterations are levied against Landlord or Landlord’s property and if Landlord pays the
same, or if the assessed value of Landlord’s property is increased by the inclusion of a value
placed upon the personal property, Above Standard Improvements and/or Alterations of Tenant and if
Landlord pays the taxes based upon the increased assessment, Landlord shall have the right to
require that Tenant pay to Landlord the taxes so levied against Landlord or the proportion of the
taxes resulting from the increase in the assessment. In calculating what portion of any tax bill
which is assessed against Landlord separately, or Landlord and Tenant jointly, is attributable to
Tenant’s Above Standard Improvements, Alterations and personal property, Landlord’s reasonable
determination shall be conclusive.



ARTICLE IX. ASSIGNMENT AND SUBLETTING




     SECTION 9.1. RIGHTS OF PARTIES.



     (a) Notwithstanding any provision of this Lease to the contrary, and except as to transfers
expressly permitted without Landlord’s consent pursuant to Sections 9.4 and 9.5, Tenant will not,
either voluntarily or by operation of law, assign, sublet, encumber, or otherwise transfer all or
any part of Tenant’s interest in this Lease or the Premises, or permit the Premises to be occupied
by anyone other than Tenant, without Landlord’s prior written consent, which consent shall not
unreasonably be withheld conditioned or delayed in accordance with the provisions of Section
9.1(b). Except as to transfers expressly permitted without Landlord’s consent pursuant to Sections
9.4 and 9.5 no assignment (whether voluntary, involuntary or by operation of law) and no subletting
shall be valid or effective without Landlord’s prior written consent and, at Landlord’s election,
any such assignment or subletting shall be void and of no force and effect. Landlord shall not be
deemed to have given its consent to any assignment or subletting by any course of action other than
written consent.



     (b) If Tenant desires to transfer an interest in this Lease or the Premises, it shall first
notify Landlord of its desire and shall submit in writing to Landlord: (i) the name and address of
the proposed transferee; (ii) the nature of any proposed transferee’s business to be carried on in
the Premises; (iii) the terms and provisions of any proposed sublease, assignment or other
transfer, including a copy of the proposed assignment, sublease or transfer form; (iv) a completed
Environmental Questionnaire from the proposed assignee, subtenant or transferee; (v) any other
information reasonably requested by Landlord and reasonably related to the transfer and (vi) the
fee described in Section 9.1(e). Except as provided in Section 9.1(c), Landlord shall not
unreasonably withhold its consent so long as: (1) the use of the Premises will be consistent with
the provisions of this Lease; (2) insurance requirements of the proposed assignee or subtenant
shall be brought into conformity with Landlord’s then current leasing practice provided such
practice is comparable to the practices of landlords of Comparable Buildings; (3) a proposed



18









 







subtenant or assignee demonstrates to the reasonable satisfaction of Landlord that it is
financially responsible to undertake the financial obligations of the transfer by providing credit
enhancements such as letters of credit guarantees and the like and/or by submission to Landlord of
all reasonable information as requested by Landlord concerning the proposed subtenant or assignee,
including, but not limited to, a balance sheet of the proposed subtenant or assignee as of a date
within ninety (90) days of the request for Landlord’s consent, statements of income or profit and
loss of the proposed subtenant or assignee for the two-year period preceding the request for
Landlord’s consent (or, if shorter, for whatever period the subtenant or assignee has been in
business) and/or a certification signed by the proposed subtenant or assignee that it has not been
evicted at any other leased premises for the 3-year period preceding the request for Landlord’s
consent (except that this requirement shall not be imposed if Tenant hereunder has a net worth of
at least One Hundred Million Dollars ($100,000.000.00); (4) the proposed transferee is not an
existing tenant of the Project (except that this restriction shall not apply if Landlord does not
have sufficient available space in the Project to accommodate the proposed transferee(; (5) the
proposed transfer will not impose material additional security or other burdens on Landlord; and
(6) the proposed transferee has been approved by the Ground Lessor.



               If Landlord consents to the proposed transfer, Tenant may effect the transfer upon the terms
described in the information furnished to Landlord; provided that any material change in the terms
shall be subject to Landlord’s consent as set forth in this Section 9.1 Landlord shall approve or
disapprove any requested transfer within ten (10) business days following receipt of Tenant’s
written request, the information set forth above, and the fee set forth below, and any failure by
Landlord to respond within such ten (10) business day period shall be deemed to be Landlord’s
consent thereto.



     (c) Notwithstanding anything to the contrary contained in this Article IX, in the event that
Tenant contemplates an assignment of this Lease, or a sublease of all or a portion of the Premises
for substantially the remainder of the Term of this Lease (“Contemplated Transfer”), then Tenant
shall give Landlord notice (“Intention to Transfer Notice”) of such Contemplated Transfer. The
Intention to Transfer Notice shall specify the portion and amount of rentable square feet of the
Premises which Tenant intends to transfer (“Contemplated Transfer Space”), the contemplated date of
the commencement of the Contemplated Transfer (“Contemplated Effective Date”) and shall state that
it is an assignment or a sublease of the Contemplated Transfer Space for substantially all of the
remainder of the Term of this Lease, and shall specify that such Intention to Transfer Notice is
delivered to Landlord pursuant to this Section 9.1(c) in order to allow Landlord to elect to
recapture the Contemplated Transfer Space. Thereafter, Landlord shall have the option, by giving
written notice to Tenant within fifteen (15) business days after receipt of such Intention to
Transfer Notice, to recapture such Contemplated Transfer Space upon the basic terms and conditions
specified in the Intention to Transfer Notice. In the event Landlord does not give such written
recapture notice to Tenant within such fifteen (15) business day period, Tenant shall have one
hundred eighty (180) days thereafter within which to effect the transfer in accordance with the
Intention to Transfer Notice and subject to compliance with the other provisions of this Lease. In
the event Tenant does not complete the transfer within that 180-day period, Tenant shall be
required to deliver a new Intention to Transfer Notice to Landlord and repeat the provisions of
this Section. In the event the recapture option is exercised by Landlord, this Lease shall be
canceled and terminated with respect to the Contemplated Transfer Space as of the Contemplated
Effective Date. In the event of a recapture by Landlord, if this Lease shall be canceled with
respect to less than the entire Premises, (i) the rent reserved herein shall be prorated on the
basis of the number of rentable square feet retained by Tenant in proportion to the number of
rentable square feet contained in the Premises, and this Lease as so amended shall continue
thereafter in full force and effect, and upon the request of either party, the parties shall
execute written confirmation of the same, (ii) Landlord shall install, on a commercially reasonable
basis, any corridor and/or demising wall, at Landlord’s expense, which is required as a result of
the cancellation of the Lease with respect to less than the entire Premises, and (iii) if the
recapture results in Tenant leasing less than a full Building, then the provisions of the next succeeding paragraph of this Section 9.1(c) shall apply
with respect to that partial Building space.



     Following the exercise by Landlord of it’s “recapture” rights herein provided, should Tenant
lease space within the Building that consists of less than the entire Building (“Partial Building
Space”) then this Lease shall be deemed amended to reflect normal leasing practices in multi-tenant
buildings within the Project. Such changes shall include without limitation the following: (i) not
all utility services may be separately metered to the Partial Building Space, in which event the
Operating Expenses payable by Tenant for the Partial Building Space shall include Tenant’s
proportionate share of such costs, (ii) all Building systems and interior Common Areas in the
Building shall be maintained by Landlord, (iii) after-hours HVAC charges shall be assessed for the
Partial Building Space based on Landlord’s normal allotted hours of operation (except that the
charge for after-hours usage shall e at the same rate per hour as set forth in Section 6.1 below),
(iv) the Operating Expenses for the Partial Building Space shall include a Landlord management fee
that is consistent with that imposed in other multi-tenant buildings in the Project (provided that
such fee shall not exceed that being generally charged by landlords of comparable office projects
in the area), (v) all access control systems for the Building (but not Tenant’s space within such
Building) and access to Building conduits and risers shall be controlled by Landlord, and (vi) any
exclusive rights granted in this Lease with respect to a Building shall be a shared right based on
Landlord’s normal multi-tenant leasing practice. Should Tenant lease Partial Building Space but
subsequently lease the Building in its entirety, then the special provisions of this paragraph
shall thereupon cease to be applicable.



     (d) Tenant agrees that fifty percent (50%) of any amounts paid by the assignee or subtenant,
however described (“Transfer Profits”) in excess of (i) the Basic Rent payable by Tenant hereunder,
or in the case of a sublease of a portion of the Premises, in excess of the Basic Rent reasonably
allocable to such portion, plus (ii) Tenant’s Transfer Costs which Tenant certifies to Landlord
have been paid shall be the property of Landlord and such amounts shall be payable directly to
Landlord by Tenant. “Transfer Costs” means the direct out-of-pocket costs actually incurred by
Tenant to provide occupancy related services to such assignee or subtenant of a nature commonly
provided by landlords of similar space including but not limited to reasonable brokerage fees, fees
paid by Tenant to Landlord pursuant to this Article IX, rent as to the transferred space paid to
Landlord by Tenant from



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the later of (i) the date Tenant sends to Landlord a factually correct
written notice that it has vacated the space being transferred and (ii) the date Tenant shall have
retained the services of a broker to market such space until the date the sublease of such space
commences to pay rent to Tenant for such space (“Vacancy Costs”), cost of tenant improvements for
the transferee or other economic concessions, the unamortized cost of the initial Tenant
Improvements (exclusive of subsequent Alterations) made to the Premises and funded by Tenant
pursuant to the Work Letter hereto and without reimbursement from Landlord (“Unamortized
Improvement Costs”), reasonable attorneys fees and marketing costs. Notwithstanding the foregoing,
however, Unamortized Improvement Costs shall not be recoverable by Tenant in connection with any
subletting for which Landlord enters into a Recognition Agreement pursuant to Section 9.6 below,
nor shall Vacancy Costs in excess of one (1) year for any space for which Landlord enters into a
Recognition Agreement. Tenant shall within thirty (30) days after the effective date of any such
assignment or subletting deliver to Landlord a written certified statement setting forth the
Transfer Costs incurred and a schedule of the time required to recover those costs. After Tenant
has recovered one hundred percent (100%) of its Transfer Costs, fifty percent (50%) of the Transfer
Profits shall be paid to Landlord as and when received by Tenant for the remainder of the term of
such sublease of assignment. Landlord shall have the right to request copies from Tenant of
documentation to support the Transfer Costs incurred and/or to have such records reviewed or
audited by an employee of Landlord or an outside accountant to confirm the accuracy thereof. In
the event such Transfer Costs are overstated by Tenant by more than five percent (5%), Tenant shall
reimburse Landlord for its out-of-pocket costs incurred in connection with such review or audit.
At Landlord’s request, a written agreement shall be entered into by and among Tenant, Landlord and
the proposed assignee or subtenant confirming the requirements of this subsection.



     (e) Tenant shall pay to Landlord a fee equal to Five Hundred Dollars ($500.00) to process any
request by Tenant for an assignment, subletting or other transfer under this Lease. Tenant shall
pay Landlord the sum of Five Hundred Dollars ($500.00) concurrently with Tenant’s request for
consent to any assignment, subletting or other transfer, and Landlord shall have no obligation to
consider such request unless accompanied by such payment. Such fee is hereby acknowledged as a
reasonable amount to reimburse Landlord for its costs of review and evaluation of a proposed
transfer.



     SECTION 9.2. EFFECT OF TRANSFER. No subletting or assignment, even with the consent of
Landlord, shall relieve Tenant of its obligation to pay rent and to perform all its other
obligations under this Lease. Moreover, Tenant shall indemnify and hold Landlord harmless, as
provided in Section 10.3, for any act or omission by an assignee or subtenant. Each assignee,
other than Landlord, shall assume all obligations of Tenant under this Lease and shall be liable
jointly and severally with Tenant for the payment of all rent, and for the due performance of all
of Tenant’s obligations, under this Lease. No assignment or subletting shall be effective or
binding on Landlord unless documentation in form and substance reasonably satisfactory to Landlord
in its reasonable discretion evidencing the transfer, and in the case of an assignment, the
assignee’s assumption of the obligations of Tenant under this Lease, is delivered to Landlord and
both the assignee/subtenant and Tenant deliver to Landlord an executed consent to transfer
instrument prepared by Landlord and consistent with the requirements of this Article. The
acceptance by Landlord of any payment due under this Lease from any other person shall not be
deemed to be a waiver by Landlord of any provision of this Lease or to be a consent to any
transfer. Consent by Landlord to one or more transfers shall not operate as a waiver or estoppel
to the future enforcement by Landlord of its rights under this Lease or as a consent to any
subsequent transfer.



     SECTION 9.3. SUBLEASE REQUIREMENTS. The following terms and conditions shall apply to any
subletting by Tenant of all or any part of the Premises and shall be deemed included in each
sublease:



     (a) Each and every provision contained in this Lease (other than with respect to the payment
of rent hereunder) is incorporated by reference into and made a part of such sublease, with
“Landlord” hereunder meaning the sublandlord therein and “Tenant” hereunder meaning the subtenant
therein and the sublet space being substituted for “Premises.” Notwithstanding the foregoing,
Landlord agrees that Tenant will not be in violation of this Lease if it grants subtenant lesser
rights under the sublease than were granted to Tenant under this Lease or imposes greater
obligations on the subtenant under the sublease than were imposed on Tenant under this Lease.



     (b) Tenant hereby irrevocably assigns to Landlord all of Tenant’s interest in all rentals and
income arising from any sublease of the Premises, and Landlord may collect such rent and income and
apply same toward Tenant’s obligations under this Lease; provided, however, that until there is an
Event of Default by Tenant, Tenant shall have the right to receive, collect and retain the sublease
rentals. Landlord shall not, by reason of this assignment or the collection of sublease rentals,
be deemed liable to the subtenant for the performance of any of Tenant’s obligations under the
sublease. Tenant hereby irrevocably authorizes and directs any subtenant, upon receipt of written
notice from Landlord stating that an uncured Event of Default exists in the performance of Tenant’s
obligations under this Lease, to pay to Landlord all sums then and thereafter due under the
sublease. Tenant agrees that the subtenant may rely on the notice without any duty of further
inquiry and notwithstanding any notice or claim by Tenant to the contrary. Tenant shall have no
right or claim against the subtenant or Landlord for any rentals so paid to Landlord.



     SECTION 9.4. CERTAIN TRANSFERS. The following shall be deemed to constitute an assignment of
this Lease: (a) the sale of all or substantially all of Tenant’s assets (other than bulk sales in
the ordinary course of business) or (b) if Tenant is a corporation, an unincorporated association,
a limited liability company or a partnership, the transfer, assignment or hypothecation of any
stock or interest in such corporation, association, limited liability company or partnership that
results in a change of control of such entity. Notwithstanding the foregoing, occupancy of all or
part of the Premises by a corporate parent, subsidiary, or affiliated companies of Tenant or of
Tenant’s parent or of Tenant’s subsidiary shall not be deemed an assignment or subletting provided
that



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such parent, subsidiary or affiliated companies were not formed as a subterfuge to avoid the
obligations of this Article IX. Furthermore, without limiting the generality of the foregoing,
Tenant may assign the Lease at any time, or sublease all or part of the Premises, without receipt
of Landlord’s consent, to any entity which acquires all or substantially all of Tenant’s business,
or which is acquired in whole or in part by Tenant, or which is controlled directly or indirectly
by Tenant, or which entity controls, directly or indirectly, Tenant (“Affiliate”), or which owns or
is owned by the Affiliate, so long as such transaction was not entered into as a subterfuge to
avoid the obligations and restrictions of this Lease. In connection with any such transfer to an
Affiliate, (i) if Tenant does not survive and remain in existence after such transfer, the net
worth of the successor after such transfer is at least equal to the lower of the net worth of
Tenant as of the execution of this Lease by Landlord or the net worth of Tenant immediately prior
to the date of such transfer, evidence of which, satisfactory to Landlord, shall be presented to
Landlord prior to such transfer; (ii) Tenant shall provide to Landlord, prior to such transfer,
written notice of such transfer and such assignment documentation and other information as Landlord
may reasonably request in connection therewith; and (iii) all of the other terms and requirements
of this Article shall apply with respect to such assignment. The normal and customary issuance and
transfer of shares among and between the shareholder employees of Tenant to reflect the addition,
withdrawal or change in ownership interests of the shareholder employees of Tenant shall not be
deemed an assignment or other transfer of Tenant’s interest in this Lease.



     SECTION 9.5. OCCUPANCY BY OTHERS. Tenant may allow any person or company which is a client or
customer of Tenant or which is providing service to Tenant or one of Tenant’s clients to occupy,
during the period of such business relationship, certain portions of the Premises without such
occupancy being deemed an assignment or subleasing as long as such relationship was not created as
a subterfuge to avoid the obligations set forth in this Article IX, provided that any such
occupancy shall be subject to the requirements of this Lease.



     SECTION 9.6. RECOGNITION AGREEMENT. To the extent that Tenant enters into a sublease for all
of the Floor Area of the Building, Landlord, if it grants its consent to such sublease, shall also,
upon written request delivered to Landlord at the time of the request for Landlord’s consent to the
sublease, simultaneously jointly execute with the subtenant a recognition and attornment agreement
(the “Recognition Agreement”) pursuant to which the parties shall agree that in the event an Event
of Default occurs under this Lease and this Lease is terminated, the parties shall, not later than
fifteen (15) days thereafter, enter into a direct lease for the space being subleased subject to
the provisions below (the “New Lease”); provided that Landlord shall have no obligation to enter
into a Recognition Agreement with any prospective subtenant with which Landlord had been in active
negotiations for a direct lease of space within the past one hundred fifty (150) days. For
purposes of the foregoing, Landlord shall be deemed to have been in active negotiations with a
prospective tenant if either (i) a proposed lease document had been prepared by Landlord and
delivered to the prospective tenant or (ii) Landlord and such prospective tenant had been in
continuing negotiations for space over at least a thirty (30) day period and a written letter of
intent or proposal had been submitted by Landlord and responded to by such proposed tenant.
Landlord’s obligation to enter into the New Lease shall be conditioned upon (i) the subtenant not
then being in default of its financial obligations under its sublease with Tenant and (ii) the
subtenant not then being the debtor in any bankruptcy or insolvency proceedings. The term of the
New Lease shall be for the remaining scheduled Term of this Lease, exclusive of any extension
options. The rental rate under the New Lease shall be the higher of the rental rate then and
thereafter due under this Lease or the rental rate due under the sublease, and prior to and as a
condition of the execution of the New Lease by Landlord, the tenant thereunder shall fund a security deposit to Landlord in the amount of one hundred ten
percent (110%) of the last full month’s rent under the New Lease (and the New Lease shall contain
Landlord’s standard security deposit provisions) and shall deliver to Landlord proper evidence of
required insurance coverage. The New Lease shall provide that the space is being leased in an
as-is condition, and Landlord shall not be responsible for any tenant improvements. Unless
otherwise agreed by Landlord at the time, no extension or expansion rights shall be provided by
Landlord under the New Lease. Landlord shall be entitled under the New Lease to its then standard
property management and construction management fees for the Project. In no event shall Landlord
be liable for any act, omission, covenant or breach by Tenant under the sublease or for the return
of any advance rental payments or deposits under the sublease that have not been actually delivered
to Landlord, nor shall Landlord be liable for any brokerage commissions in connection with the New
Lease. The New Lease shall be prepared by Landlord and, subject to the provisions above in this
Section, shall be consistent with the non-economic terms and provisions of this Lease, except for
the following modifications: (1) Sections 3.2, 3.3, 3.4, 3.5, 9.6, 10.2(b), 10.6, 13.2, 15.2 and
21.4 of this Lease shall be deleted in their entireties from the New Lease; (2) appropriate
modifications shall be made to the New Lease to reflect that all Building Systems shall, at
Landlord’s election, be maintained by Landlord; (3) the New Lease shall reflect Landlord’s
then-standard after-hours HVAC standards and charges and Section 6.1 shall be appropriately
modified; (4) the definition of Non-Standard Improvements in Section 7.3 shall be amended to refer
to any improvements other than Landlord’s Building Standard Improvements as defined in Exhibit X to
this Lease; and (5) the definition of “Transfer Costs” in Section 9.1(d) shall be modified to
delete the inclusion of Vacancy Costs and Unamortized Improvement Costs.



ARTICLE X. INSURANCE AND INDEMNITY




     SECTION 10.1. TENANT’S INSURANCE. Tenant, at its sole cost and expense, shall provide and
maintain in effect the insurance described in Exhibit D. Evidence of that insurance must be
delivered to Landlord prior to the Commencement Date or any earlier date on which Tenant may enter
upon or take possession of the Premises for any reason whatsoever.



     SECTION 10.2. LANDLORD’S INSURANCE. (a) Landlord shall provide all of the following types of
insurance, with customary deductible and in amounts and coverages as may be determined by Landlord
in its reasonable discretion based on the types and amounts of insurance (and deductibles) being
maintained by comparable landlords of Comparable Buildings: “all risk” property insurance, subject
to standard exclusions, covering the Building and/or Project, loss of rent insurance, worker’s
compensation insurance and commercial



21









 







general liability coverage. Landlord shall not be required
to carry insurance of any kind on Tenant’s removable improvements or property, including, without
limitation, Tenant’s trade fixtures, furnishings, equipment, signs and all other items of personal
property, and Landlord shall not be obligated to repair or replace that property should damage
occur. All proceeds of insurance maintained by Landlord upon the Building and/or Project shall be
the property of Landlord, whether or not Landlord is obligated to or elects to make any repairs.
At Landlord’s option, Landlord may self-insure all or any portion of the risks for which Landlord
elects to provide insurance hereunder.



     (b) Notwithstanding the foregoing, however, Tenant may elect to carry the all-risk property
insurance coverage on the Building, provided that the coverage (and the financial rating of the
carrier) is in all material respects at least equivalent to that being carried by Landlord. Tenant
may exercise such election by written notice to Landlord delivered prior to the date that Landlord
purchases its annual property policy. All costs of that insurance shall be timely funded in full by
Tenant, and Landlord shall be the named insured on that policy. Landlord shall have the right to
review and approve any such policy based upon the foregoing criteria. Should Tenant elect to
purchase such insurance, then the Site Costs allocated to Tenant shall not include any property
insurance component for the Building or for any other buildings in the Project. For purposes of
this subsection, an “affiliate” of Landlord shall mean any entity controlled by, controlling, or
under common control with The Irvine Company, or any entity succeeding to a substantial portion of
the commercial property assets of The Irvine Company.



     SECTION 10.3. TENANT’S INDEMNITY. . To the fullest extent permitted by law, Tenant shall
defend, indemnify, protect, save and hold harmless Landlord, its agents, any and all affiliates of
Landlord, including, without limitation, any corporations or other entities controlling, controlled
by or under common control with Landlord, and the Ground Lessor from and against any and all
claims, liabilities, costs or expenses arising either before or after the Commencement Date from
Tenant’s use or occupancy of the Premises, the Building or the Common Areas, including without
limitation, the use by Tenant, its agents, employees, invitees or licensees of any recreational
facilities within the Common Areas, or from the conduct of its business, or from any activity,
work, or thing done, permitted or suffered by Tenant or its agents, employees, invitees or
licensees in or about the Premises, the Building or the Common Areas, or from any Event of Default
in the performance of any obligation on Tenant’s part to be performed under this Lease, or from any
act or negligence or willful misconduct of Tenant or its agents, employees, visitors, patrons,
guests, invites or licensees in, on or about the Premises, the Building or the Project. In cases
of alleged negligence asserted by third parties against Landlord and/or Ground Lessor which arise
out of, are occasioned by, or in any way attributable to Tenant, its agents’, employees’,
contractors’, licensees’ or invitees’ use and occupancy of the Premises, the Building or the Common
Areas, or from the conduct of its business or from any activity, work or thing done, permitted or
suffered by Tenant or its agents, employees, invitees or licensees on Tenant’s part to be performed
under this Lease, or from any negligence or willful misconduct of Tenant, its agents, employees,
licensees or invitees in, on or about the Premises, the Building or the Project, Tenant shall
accept any tender of defense for Landlord and Ground Lessor and shall, notwithstanding any
allegation of negligence or willful misconduct on the part of the Landlord, defend Landlord and
Ground Lessor with counsel reasonably satisfactory to Landlord and protect and hold Landlord and
Ground Lessor harmless and pay all costs, expenses and attorneys’ fees incurred in connection with
such litigation, provided that Tenant shall not be liable for any such injury or damage,
and Landlord shall reimburse Tenant for the reasonable attorneys’ fees and costs for the
attorney representing both parties, all to the extent and in the proportion that such injury or
damage is ultimately determined by a court of competent jurisdiction (or in connection with any
negotiated settlement agreed to by Landlord) to be attributable to the negligence or willful
misconduct of Landlord or its authorized agents or employees. Upon Landlord’s request, Tenant
shall at Tenant’s sole cost and expense, retain a separate attorney reasonably selected by Landlord
to represent Landlord or Ground Lessor in any such suit if Landlord reasonably determines that the
representation of both Tenant and Landlord or Ground Lessor by the same attorney would cause a
conflict of interest; provided, however, that to the extent and in the proportion that the injury
or damage which is the subject of the suit is ultimately determined by a court of competent
jurisdiction (or in connection with any negotiated settlement agreed to by Landlord) to be
attributable to the negligence or willful misconduct of Landlord, Landlord shall reimburse Tenant
for the reasonable legal fees and costs of the separate attorney retained by Tenant. The
provisions of this Section shall expressly survive the expiration or sooner termination of this
Lease. Notwithstanding the foregoing, in the event it is ultimately determined that any claim,
liability or expense was caused by the negligence or willful misconduct of Landlord, its employees,
agents or contractors, then subject to Sections 10.5 and 14.8 below, Landlord shall indemnify and
hold Tenant harmless from and against such liability or expense.



     SECTION 10.4. LANDLORD’S NONLIABILITY. Except to the extent of the negligence or willful
misconduct of Landlord or its agents, contractors or employees (but subject to Sections 10.5 and
14.8 below), Landlord shall not be liable to Tenant, and Tenant hereby waives all claims against
Landlord and knowingly assumes the risk of for loss of or damage to any property, or loss or
interruption of business or income, or any other loss, cost, damage, injury or liability whatsoever
(including without limitation any consequential damages and lost profit or opportunity costs)
resulting from, but not limited to, Acts of God, acts of civil disobedience or insurrection, acts
or omissions of third parties and/or of other tenants within the Project or their agents,
employees, contractors, guests or invitees, fire, explosion, falling plaster, steam, gas,
electricity, water or rain which may leak or flow from or into any part of the Premises or from the
breakage, leakage, obstruction or other defects of the pipes, sprinklers, wires, appliances,
plumbing, air conditioning, electrical works, roof, windows or other fixtures in the Building,
whether the damage or injury results from conditions arising in the Premises or in other portions
of the Building. It is understood that any such condition may require the temporary evacuation or
closure of all or a portion of the Building. Except as provided in Section 6.1 above and Sections
11.1 and 12.1 below, Landlord shall have no liability (including without limitation consequential
damages and lost profit or opportunity costs) and there shall be no abatement of rent, by reason of
any injury to or interference with Tenant’s business arising from the making of any repairs,
alterations or improvements to any portion of the Building, including repairs to the Premises, nor
shall any related activity by Landlord constitute an actual or constructive eviction; provided,
however, that in making repairs, alterations or improvements, Landlord shall interfere as little as
reasonably practicable with the conduct of Tenant’s business in the Premises. Should Tenant elect
to receive any service or products from a concessionaire, licensee or third party tenant of
Landlord, Landlord shall have no liability for any services or products so provided



22









 







or for any breach of contract by such third party provider. Neither Landlord nor its agents shall be liable
for interference with light or other similar intangible interests. Tenant shall immediately notify
Landlord in case of fire or accident in the Premises, the Building or the Project and of defects in
any improvements or equipment.



     SECTION 10.5. WAIVER OF SUBROGATION. Landlord and Tenant each hereby waives all rights of
recovery against the other and the other’s agents on account of loss and damage occasioned to the
property of such waiving party to the extent that such loss or damage is required to be insured
against under any “all risk” property insurance policy required by this Article X, except to the
extent of any commercially reasonable deductibles under any such policy. By this waiver it is the
intent of the parties that neither Landlord nor Tenant shall be liable to any insurance company (by
way of subrogation or otherwise) insuring the other party for any loss or damage insured against,
or required to be insured against, under any “all-risk” property insurance policies required by
this Lease (except for reasonable deductibles thereunder), even though such loss or damage might be
occasioned by the negligence of such party, its agents, employees, contractors, guests or invitees.
The provisions of this Section shall not limit the indemnification provisions elsewhere contained
in this Lease.



     SECTION 10.6 BLANKET INSURANCE/SELF INSURANCE. Notwithstanding the forgoing or anything set
forth in Exhibit D, all of the insurance requirements set forth herein on the part of
Tenant to be observed shall be deemed satisfied if the Premises are covered by a blanket insurance
policy or, for so long as Broadcom Corporation or an Affiliate thereof remains the Tenant
hereunder, if Tenant sends a letter to Landlord, signed by an authorized officer of Tenant, stating
that Tenant has elected to act as a self-insurer whereupon Tenant shall have the same obligations
and rights, and Landlord shall have the same rights and obligations, as if Tenant was an insurance
company furnishing the policies and coverages required under this Lease. Notwithstanding the
foregoing, however, Tenant shall not have the right to self-insure the general liability insurance
coverage required under this Lease.



ARTICLE XI. DAMAGE OR DESTRUCTION




     SECTION 11.1. RESTORATION.



          (a) If the Premises or the Building or a part thereof are materially damaged by any fire,
flood, earthquake or other casualty, Landlord shall have the right to terminate this Lease upon
written notice to Tenant if: (i) Landlord reasonably determines that the full cost of repair
(exclusive of any deductible up to seven and one-half percent of the loss amount) is not covered by
Landlord’s insurance that Landlord is required to maintain by this Lease which Landlord carries and
includes as part of Operating Expenses, including without limitation earthquake insurance, plus
such additional amounts Tenant elects, at its option, to contribute, excluding
however the deductible (for which Tenant shall be responsible for Tenant’s Share as an
Operating Expense); (ii) Landlord reasonably determines that the Premises cannot, with reasonable
diligence, be fully repaired by Landlord (or cannot be safely repaired because of the presence of
hazardous factors, including without limitation Hazardous Materials, earthquake faults, and other
similar dangers) within one (1) year after the date of the damage; (iii) an uncured Event of
Default by Tenant has occurred and remains uncured at the time of such casualty; or (iv) the
material damage occurs during the final twelve (12) months of the Term. Landlord shall notify
Tenant in writing (“Landlord’s Notice”) within thirty (30) days after the damage occurs as to (A)
whether Landlord is terminating this Lease as a result of such material damage and (B) if Landlord
is not terminating this Lease, the number of days within which Landlord has estimated that the
Premises, with reasonable diligence, are likely to be fully repaired. In the event Landlord elects
to terminate this Lease, this Lease shall terminate as of the date of Landlord’s Notice.
Notwithstanding the foregoing, Landlord shall only have the right to terminate this Lease under (i)
above if Landlord terminates the leases of all tenants in the Project similarly damaged by such
casualty and such tenants have comparable rights and obligations in the event of such casualty.




          (b) If Landlord has the right to terminate this Lease pursuant to Section 11.1(a) and does not
elect to so terminate this Lease, and provided that at the time of Landlord’s Notice no uncured
Event of Default exists under this Lease, then within fifteen (15) business days following delivery
of Landlord’s Notice pursuant to Section 11.1(a), Tenant may elect to terminate this Lease by
written notice to Landlord, but only if (i) Landlord’s Notice specifies that Landlord has
determined that the Premises cannot be repaired, with reasonable diligence, within twelve (12)
months after the date of damage (the “Maximum Period”) or (ii) the casualty has occurred within the
final twelve (12) months of the Term and Tenant is prevented from using the Premises for sixty (60)
consecutive days due to such damage. If Tenant fails to provide such termination notice within
such fifteen (15) business day period, Tenant shall be deemed to have waived any termination right
under this Section 1l.1(b) or any other applicable law.




          (c) In the event that neither Landlord nor Tenant terminates this Lease pursuant to this
Section 11.1 as a result of material damage to the Building resulting from a casualty, Landlord
shall, except as provided in subsection (e) below, repair all material damage to the Premises or
the Building as soon as reasonably possible and this Lease shall continue in effect for the
remainder of the Term. Notwithstanding the foregoing, the repair of damage to the Premises to the
extent such damage is not material shall be governed by Sections 7.1 and 7.2.




     Notwithstanding anything to the contrary contained in this Section 11.1(c), if the anticipated
repair period set forth in Landlord’s Notice was less than the Maximum Period but Landlord
subsequently determines that the actual repair period will exceed the Maximum Period, then Landlord
shall so notify Tenant and Tenant may, within ten (10) business days thereafter, elect to terminate
this Lease effective as of the date of Landlord’s notice; otherwise, the Maximum Period shall be
deemed extended as set forth in the notice from Landlord. Should Landlord fail substantially to
complete the restoration within the Maximum Period (as the same may be extended as aforesaid), then
Tenant may elect to terminate this Lease by written notice to Landlord.



23









 





          (d) From and after the sixth (6th) business day after such material damage to the Building (or
such earlier date that Landlord is entitled to rent loss insurance proceeds), and ending on the
sooner of the date the damage is repaired or the date this Lease is terminated, the rental to be
paid under this Lease shall be abated in the same proportion that the Floor Area of the Premises
that is rendered unusable by the damage from time to time bears to the total Floor Area of the
Premises, as reasonably determined by Landlord. However, in the event that Tenant is prevented
from conducting, and does not conduct, its business in any portion of the Premises for a period of
time in excess of the Eligibility Period, and the remaining portion of the Building is not
sufficient to allow Tenant to effectively conduct its business therein, and if Tenant does not
conduct its business from such remaining portion, then for such time after expiration of the
Eligibility Period during which Tenant is so prevented from effectively conducting its business
therein, the rent for the entire Building shall be abated; provided, however, if Tenant reoccupies
and conducts its business from any portion of the Building during such period, the rent allocable
to such reoccupied portion, based on the proportion that the rentable area of such reoccupied
portion of the Building bears to the total rentable area of the Building, shall be payable by
Tenant from the date such business operations commence.




          (e) Landlord shall not be required to repair or replace any improvements or fixtures that
Tenant is obligated to repair or replace pursuant to Section 7.1 or any other provision of this
Lease but Tenant’s Rent shall continue to abate until Tenant has been given sufficient time to
repair such improvements, reinstall its furniture, fixtures and equipment and move back into the
Premises.




          (f) Tenant shall fully cooperate with Landlord in removing Tenant’s personal property and any
debris from the Premises to facilitate all inspections of the Premises and the making of any
repairs. Notwithstanding anything to the contrary contained in this Lease, if Landlord in good
faith believes there is a risk of injury to persons or damage to property from entry into the
Building or Premises following any damage or destruction thereto, Landlord may restrict entry into
the Building or the Premises by Tenant, its employees, agents and contractors in a
non-discriminatory manner, without being deemed to have violated Tenant’s rights of quiet enjoyment
to, or made an unlawful detainer of, or evicted Tenant from, the Premises. Upon request, Landlord
shall consult with Tenant to determine if there are safe methods of entry into the Building or the
Premises solely in order to allow Tenant to retrieve files, data in computers, and necessary
inventory, subject however to all indemnities and waivers of liability from Tenant to Landlord
contained in this Lease and any additional indemnities and waivers of liability which Landlord may
require.




     SECTION 11.2. LEASE GOVERNS. Tenant agrees that the provisions of this Lease, including
without limitation Section 11.1, shall govern any damage or destruction and shall accordingly
supersede any contrary statute or rule of law.



ARTICLE XII. EMINENT DOMAIN




     SECTION 12.1. TOTAL OR PARTIAL TAKING. If all or a material portion of the Premises is taken
by any lawful authority by exercise of the right of eminent domain, or sold to prevent a taking,
either Tenant or Landlord may terminate this Lease effective as of the date possession is required
to be surrendered to the authority. In the event title to a portion of the Building or Project,
whether or not including a portion of the Premises, is taken or sold in lieu of taking, and if the
Lease is not or cannot be terminated, Landlord must, if possible, restore the Building in such a
way as to not alter the Premises materially. In the event neither party has elected to terminate
this Lease as provided above, then Landlord shall promptly proceed to restore the Premises to
substantially their condition prior to the taking, and a proportionate allowance shall be made to
Tenant for the rent corresponding to the time during which, and to the part of the Premises of
which, Tenant is deprived on account of the taking and restoration as provided in Section 6.1.
Landlord shall be entitled to the entire amount of the condemnation award without deduction for any
estate or interest of Tenant; provided that nothing in this Section shall be deemed to give
Landlord any interest in, or prevent Tenant from seeking any award against the taking authority
for, the taking of personal property and fixtures belonging to Tenant, the unamortized cost of the
Tenant Improvements or other alterations to the extent paid for by Tenant, or relocation or
business interruption expenses recoverable from the taking authority.



     SECTION 12.2. TEMPORARY TAKING. No temporary taking of the Premises shall terminate this
Lease or give Tenant any right to abatement of rent, and any award specifically attributable to a
temporary taking of the Premises shall belong entirely to Tenant. A temporary taking shall be
deemed to be a taking of the use or occupancy of the Premises for a period of not to exceed ninety
(90) days.



     SECTION 12.3. TAKING OF PARKING AREA. In the event there shall be a taking of the parking
area such that Landlord can no longer provide sufficient parking to comply with this Lease,
Landlord may substitute reasonably equivalent parking in a location reasonably close to the
Building(s); provided that if Landlord fails to make that substitution within ninety (90) days
following the taking and if the taking materially impairs Tenant’s use and enjoyment of the
Premises, Tenant may, at its option, terminate this Lease by written notice to Landlord. If this
Lease is not so terminated by Tenant, there shall be no abatement of rent and this Lease shall
continue in effect.



ARTICLE XIII. SUBORDINATION; ESTOPPEL CERTIFICATE; FINANCIALS




     SECTION 13.1. SUBORDINATION. At the option of Landlord, the Ground Lessor, or any lender of
Landlord’s that obtains a security interest in the Building, this Lease shall be either superior or
subordinate to the Ground Leases and to all ground or underlying leases, mortgages and deeds of
trust, if any, which may hereafter affect the Building, and to all renewals, modifications,
consolidations, replacements and extensions



24









 







thereof; provided, that so long as no Event of Default
exists under this Lease, Tenant’s possession and quiet enjoyment of the Premises shall not be
disturbed and this Lease shall not terminate in the event of termination of any such ground or
underlying lease, or the foreclosure of any such mortgage or deed of trust, to which this Lease has
been subordinated pursuant to this Section. Tenant shall execute and deliver any commercially
reasonable documents or agreements requested by Landlord or such lessor or lender which provide
Tenant with the non-disturbance protections set forth in this Section. In the event of a
termination or foreclosure, Tenant shall, subject to the provisions of Section 12.5 of the Ground
Leases, become a tenant of and attorn to the successor-in-interest to Landlord upon the same terms
and conditions as are contained in this Lease, and shall execute any instrument reasonably required
by Landlord’s successor for that purpose. Tenant shall also, upon written request of Landlord,
execute and deliver all instruments as may be required from time to time to subordinate the rights
of Tenant under this Lease to any ground or underlying lease or to the lien of any mortgage or deed
of trust (provided that such instruments include the nondisturbance and attornment provisions set
forth above), or, if requested by Landlord, to subordinate, in whole or in part, any ground or
underlying lease or the lien of any mortgage or deed of trust to this Lease.



     SECTION 13.2. GROUND LESSOR NDAA. Landlord hereby represents and warrants that, as of the
date hereof, there are no ground leases (except for the Ground Leases described above) and no
mortgages and/or deeds of trust affecting the Project. Furthermore, and notwithstanding the
foregoing to the contrary, Landlord agrees to provide Tenant with a commercially reasonable
non-disturbance and attornment agreement (“NDAA”) in favor of Tenant from the current Ground Lessor
concurrently with the execution of the Lease in substantially the form of Exhibit Z
attached to this Lease. Landlord also agrees to provide Tenant with a commercially reasonable NDAA
from any ground lessor, mortgagor, lien holder or deed of trust holder of Landlord who later
come(s) into existence at any time prior to the expiration of the Term of the Lease, as it may be
extended, in consideration of, and as a condition precedent to, Tenant’s agreement to be bound by
this Section.



     SECTION 13.3. ESTOPPEL CERTIFICATE.



          (a) Tenant shall, at any time upon not less than ten (10) business days prior written notice
from Landlord, execute, acknowledge and deliver to Landlord, in any form that Landlord may
reasonably require, a statement in writing (i) certifying that this Lease is unmodified and in full
force and effect (or, if modified, stating the nature of the modification and certifying that this
Lease, as modified, is in full force and effect) and the dates to which the rental, additional rent
and other charges have been paid in advance, if any, and (ii) acknowledging that, to Tenant’s
actual knowledge as of the date thereof, there are no uncured defaults on the part of Landlord, or
specifying each default if any are claimed, and (iii) setting forth all further information that
Landlord or any purchaser or encumbrancer may reasonably require. Tenant’s statement may be relied
upon by any prospective purchaser or encumbrancer of all or any portion of the Building(s) or
Project.




          (b) Notwithstanding any other rights and remedies of Landlord, Tenant’s failure to deliver any
estoppel statement within the provided time shall be conclusive upon Tenant that (i) this Lease is
in full force and effect, without modification except as may be represented by Landlord, (ii) there
are no uncured Events of Default in Landlord’s performance, and (iii) not more than one month’s
rental has been paid in advance.




          (c) Landlord hereby agrees to execute and deliver to Tenant an estoppel certificate for the
benefit of a transferee or lender of Tenant containing the same types of information, and within
the same periods of time, as are set forth above, except such changes as are reasonably necessary
to reflect that the estoppel certificate is being granted and signed by Landlord to Tenant’s
lender, assignee or sublessee, rather than from Tenant to Landlord or to a lender or purchaser.
Notwithstanding anything to the contrary set forth in this Lease, neither Landlord nor Tenant will
be appointed to act as power of attorney to sign for the other.




     SECTION 13.4. FINANCIALS. Upon request by Landlord in connection with the sale or
financing of the Project or a portion thereof, Tenant shall deliver to Landlord Tenant’s current
financial statements, certified true, accurate and complete by the chief financial officer of
Tenant, including a balance sheet and profit and loss statement for the most recent prior year;
provided that, so long as Tenant is a publicly traded corporation on a nationally recognized stock
exchange, then in lieu of the foregoing, Landlord shall instead look to Tenant’s current financial
reports filed with the Securities and Exchange Commission (either of the foregoing being
collectively referred to as the “Statements”), which Statements shall accurately and completely
reflect the financial condition of Tenant. Landlord agrees that it will keep the Statements
confidential (unless otherwise available to the public), except that Landlord shall have the right
to deliver the same to any proposed purchaser or encumbrancer of all or any portion of the Project.



ARTICLE XIV. EVENTS OF DEFAULT AND REMEDIES




     SECTION 14.1. TENANT’S DEFAULTS. The occurrence of any one or more of the following events
(following the expiration of any cure period set forth below, if any is provided) shall constitute
an “Event of Default” by Tenant:



     (a) The failure by Tenant to make any payment of Basic Rent or additional rent required to be
made by Tenant, as and when due, where the failure continues for a period of five (5) business days
after receipt by Tenant of written notice from Landlord that such payment was not made when due;
provided, however, that any such notice shall be in addition to and not in lieu of, any notice
required under California Code of Civil Procedure Section 1161 and 1161(a) as amended. For
purposes of these Events of Default and remedies provisions, the term “additional



25









 







rent” shall be deemed to include all amounts of any type whatsoever other than Basic Rent to be paid by Tenant
pursuant to the terms of this Lease.



     (b) The failure by Tenant to observe or perform any of the covenants or provisions of this
Lease to be observed or performed by Tenant, where the failure continues for a period of thirty
(30) days after receipt by Tenant of written notice from Landlord to Tenant; provided, however,
that any such notice shall be in addition to and not in lieu of, any notice required under
California Code of Civil Procedure Section 1161 and 1161(a) as amended. However, if the nature of
the failure is such that more than thirty (30) days are reasonably required for its cure, then
Tenant shall not be deemed to have committed an Event of Default if Tenant commences the cure
within thirty (30) days, and thereafter diligently pursues the cure to completion.



     SECTION 14.2. LANDLORD’S REMEDIES.



     (a) If an Event of Default by Tenant occurs, then in addition to any other remedies available
to Landlord, Landlord may exercise the following remedies:



                    (i) Landlord may terminate Tenant’s right to possession of the Premises by any lawful means,
in which case this Lease shall terminate and Tenant shall immediately surrender possession of the
Premises to Landlord. Such termination shall not affect any accrued obligations of Tenant under
this Lease. Upon termination, Landlord shall have the right to reenter the Premises and remove all
persons and property. Landlord shall also be entitled to recover from Tenant:



                         (1) The worth at the time of award of the unpaid Basic Rent and additional rent which had been
earned at the time of termination;



                         (2) The worth at the time of award of the amount by which the unpaid Basic Rent and additional
rent which would have been earned after termination until the time of award exceeds the amount of
such loss that Tenant proves could have been reasonably avoided;



                         (3) The worth at the time of award of the amount by which the unpaid Basic Rent and additional
rent for the balance of the Term after the time of award exceeds the amount of such loss that
Tenant proves could be reasonably avoided;



                         (4) Any other amount necessary to compensate Landlord for all the detriment proximately caused
by Tenant’s failure to perform its obligations under this Lease or which in the ordinary course of
things would be likely to result from Tenant’s Event of Default, including, but not limited to, the
cost of recovering possession of the Premises, refurbishment of the Premises, marketing costs,
commissions and other expenses of reletting, including necessary repair, the unamortized portion of
any tenant improvements and brokerage commissions funded by Landlord in connection with this Lease,
reasonable attorneys’ fees, and any other reasonable costs; and



                         (5) At Landlord’s election, all other amounts in addition to or in lieu of the foregoing as
may be permitted by law. The term “rent” as used in the Lease shall be deemed to mean the Basic
Rent, Tenant’s Share of Operating Expenses and any other sums required to be paid by Tenant to
Landlord pursuant to the terms of this Lease. Any sum, other than Basic Rent, shall be computed on
the basis of the average monthly amount accruing during the twenty-four (24) month period
immediately prior to the Event of Default, except that if it becomes necessary to compute such
rental before the twenty-four (24) month period has occurred, then the computation shall be on the
basis of the average monthly amount during the shorter period. As used in Sections 14.2(a)(i) (1)
and (2) above, the “worth at the time of award” shall be computed by allowing interest at the rate
of ten percent (10%) per annum. As used in Section 14.2(a)(i)(3) above, the “worth at the time of
award” shall be computed by discounting the amount at the discount rate of the Federal Reserve Bank
of San Francisco at the time of award plus one percent (1%).



                    (ii) Landlord may elect not to terminate Tenant’s right to possession of the Premises, in
which event Landlord may continue to enforce all of its rights and remedies under this Lease,
including the right to collect all rent as it becomes due. Efforts by the Landlord to maintain,
preserve or relet the Premises, or the appointment of a receiver to protect the Landlord’s
interests under this Lease, shall not constitute a termination of the Tenant’s right to possession
of the Premises. In the event that Landlord elects to avail itself of the remedy provided by this
Section 14.2(a)(ii), Landlord shall not unreasonably withhold its consent to an assignment or
subletting of the Premises subject to the reasonable standards for Landlord’s consent as are
contained in this Lease.



               (b) Except for maintenance and repair obligations under the Lease, Landlord shall be under no
obligation to observe or perform any covenant of this Lease on its part to be observed or performed
which accrues after the date of any Event of Default by Tenant unless and until the Event of
Default is cured by Tenant, it being understood and agreed that the performance by Landlord of its
obligations under this Lease are expressly conditioned upon Tenant’s full and timely performance of
its obligations under this Lease. The various rights and remedies reserved to Landlord in this
Lease or otherwise shall be cumulative and, except as otherwise provided by California law,
Landlord may to the extent it does not result in a double recovery by Landlord pursue any or all of
its rights and remedies at the same time.



               (c) No delay or omission of Landlord to exercise any right or remedy shall be construed as a
waiver of the right or remedy or of any breach or Event of Default by Tenant. The acceptance by
Landlord of rent shall not be a (i) waiver of any preceding breach or Event of Default by Tenant of
any provision of this Lease, other



26









 




than the failure of Tenant to pay the particular rent accepted,
regardless of Landlord’s knowledge of the preceding breach or Event of Default at the time of
acceptance of rent, or (ii) a waiver of Landlord’s right to exercise any remedy available to
Landlord by virtue of the breach or Event of Default. The acceptance of any payment from a debtor
in possession, a trustee, a receiver or any other person acting on behalf of Tenant or Tenant’s
estate shall not waive or cure a breach or Event of Default under Section 14.1. No payment by
Tenant or receipt by Landlord of a lesser amount than the rent required by this Lease shall be
deemed to be other than a partial payment on account of the earliest due stipulated rent, nor shall
any endorsement or statement on any check or letter be deemed an accord and satisfaction and
Landlord shall accept the check or payment without prejudice to Landlord’s right to recover the
balance of the rent or pursue any other remedy available to it. No act or thing done by Landlord
or Landlord’s agents during the Term shall be deemed an acceptance of a surrender of the Premises,
and no agreement to accept a surrender shall be valid unless in writing and signed by Landlord. No
employee of Landlord or of Landlord’s agents shall have any power to accept the keys to the
Premises prior to the termination of this Lease, and the delivery of the keys to any employee shall
not operate as a termination of this Lease or a surrender of the Premises. Unless Landlord has
entered into a new lease for all or a portion of the Premises with a third party with whom Landlord
had executed a Recognition Agreement pursuant to Section 9.6 above, nothing in this Lease shall be
deemed to constitute a waiver by Tenant of its right to seek a relief from forfeiture pursuant to
Section 1179 of the California Code of Civil Procedure.




     SECTION 14.3. LATE PAYMENTS. Any payment due to Landlord under this Lease, including without
limitation Basic Rent, Tenant’s Share of Operating Expenses or any other payment due to Landlord
under this Lease, that is not received by Landlord within ten (10) days following the date due
shall bear interest at the lesser of (i) the per annum rate of ten percent (10%) and (ii) the
maximum rate permitted by law (“Interest Rate”) from the date due until fully paid. The payment of
interest shall not cure any breach or Event of Default by Tenant under this Lease. In addition,
Tenant acknowledges that the late payment by Tenant to Landlord of Basic Rent and Tenant’s Share of
Operating Expenses will cause Landlord to incur costs not contemplated by this Lease, the exact
amount of which will be extremely difficult and impracticable to ascertain. Those costs may
include, but are not limited to, administrative, processing and accounting charges, and late charges which may be imposed on Landlord by the terms of any ground
lease, mortgage or trust deed covering the Premises. Accordingly, if any Basic Rent or Tenant’s
Share of Operating Expenses due from Tenant shall not be received by Landlord or Landlord’s
designee within five (5) business days after receipt by Tenant from Landlord of written notice that
same has not been paid when due, then Tenant shall pay to Landlord, in addition to the interest
provided above, a late charge, which the Tenant agrees is reasonable, in a sum equal to the lesser
of two percent (2%) of the amount overdue or Two Thousand Dollars ($2,000.00) for each delinquent
payment; provided that in no event shall such late charge be less than One Hundred Dollars
($100.00). Acceptance of a late charge by Landlord shall not constitute a waiver of Tenant’s
breach or Event of Default with respect to the overdue amount, nor shall it prevent Landlord from
exercising any of its other rights and remedies.



     SECTION 14.4. RIGHT OF LANDLORD TO PERFORM. All covenants and agreements to be performed by
Tenant under this Lease shall be performed at Tenant’s sole cost and expense and without any
abatement of rent or right of set-off (except as otherwise provided in this Lease). If Tenant
fails to pay any sum of money, other than rent payable to Landlord, or fails to perform any other
act on its part to be performed under this Lease, and the failure continues beyond any applicable
grace period set forth in Section 14.1, then in addition to any other available remedies, Landlord
may, at its election, following three (3) business days notice to Tenant (unless Tenant cures
within such three (3) business day period) make the payment or perform the other act on Tenant’s
part. Landlord’s election to make the payment or perform the act on Tenant’s part shall not give
rise to any responsibility of Landlord to continue making the same or similar payments or
performing the same or similar acts. Tenant shall, promptly upon demand by Landlord, reimburse
Landlord for all sums paid by Landlord and all necessary incidental costs, together with interest
at the Interest Rate from the date of the payment by Landlord.



     SECTION 14.5. DEFAULT BY LANDLORD. Landlord shall not be deemed to be in default in the
performance of any obligation under this Lease, and Tenant shall have no rights to take any action
against Landlord, unless and until Landlord has failed to perform the obligation within thirty (30)
days after written notice by Tenant to Landlord specifying in reasonable detail the nature and
extent of the failure; provided, however, that if the nature of Landlord’s obligation is such that
more than thirty (30) days are required for its performance, then Landlord shall not be deemed to
be in default if it commences performance within the thirty (30) day period and thereafter
diligently pursues the cure to completion. Upon any such default by Landlord, Tenant may exercise
any of its rights provided in law or at equity, provided that such remedies shall not include
termination rights except as expressly provided herein.



     SECTION 14.6. EXPENSES AND LEGAL FEES. All sums reasonably incurred by Landlord or Tenant in
connection with any Event of Default by Tenant or default by Landlord under Section 14.5, above,
or holding over of possession by Tenant after the expiration or earlier termination of this Lease,
or any action related to a filing for bankruptcy or reorganization by Tenant or Landlord, including
without limitation all costs, expenses and actual accountants, appraisers, attorneys and other
professional fees, and any collection agency or other collection charges, shall be due and payable
to the non defaulting party on demand, and shall bear interest at the Interest Rate. Should either
Landlord or Tenant bring any action in connection with this Lease which results in a judgment or an
award, the prevailing party shall be entitled to recover as a part of the action its reasonable
attorneys’ fees, and all other costs. The prevailing party for the purpose of this Section shall
be determined by the trier of the facts.



     SECTION 14.7. WAIVER OF JURY TRIAL/JUDICIAL REFERENCE.



     (a) LANDLORD AND TENANT EACH ACKNOWLEDGES THAT IT IS AWARE OF AND HAS HAD THE ADVICE OF
COUNSEL OF ITS CHOICE WITH RESPECT TO ITS RIGHTS TO TRIAL BY JURY, AND, TO THE EXTENT ENFORCEABLE
UNDER CALIFORNIA LAW, EACH PARTY DOES HEREBY EXPRESSLY AND KNOWINGLY WAIVE AND RELEASE ALL SUCH
RIGHTS TO TRIAL



27









 







BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER PARTY HERETO
AGAINST THE OTHER (AND/OR AGAINST ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR SUBSIDIARY OR
AFFILIATED ENTITIES) ON ANY MATTERS WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS
LEASE, TENANT’S USE OR OCCUPANCY OF THE PREMISES AND/OR ANY CLAIM OF INJURY OR DAMAGE.
FURTHERMORE, THIS WAIVER AND RELEASE OF ALL RIGHTS TO A JURY TRIAL IS DEEMED TO BE INDEPENDENT OF
EACH AND EVERY OTHER PROVISION, COVENANT, AND/OR CONDITION SET FORTH IN THIS LEASE.



     (b) IN THE EVENT THAT THE JURY WAIVER PROVISIONS OF SECTION 14.7(a) ARE NOT ENFORCEABLE UNDER
CALIFORNIA LAW, THEN THE PROVISIONS OF THIS SECTION 14.7(b) SHALL APPLY. IT IS THE DESIRE AND
INTENTION OF THE PARTIES TO AGREE UPON A MECHANISM AND PROCEDURE UNDER WHICH CONTROVERSIES AND
DISPUTES ARISING OUT OF THIS LEASE OR RELATED TO THE PREMISES WILL BE RESOLVED IN A PROMPT AND
EXPEDITIOUS MANNER. ACCORDINGLY, EXCEPT WITH RESPECT TO ACTIONS FOR UNLAWFUL OR FORCIBLE DETAINER
OR WITH RESPECT TO THE PREJUDGMENT REMEDY OF ATTACHMENT, ANY ACTION, PROCEEDING OR COUNTERCLAIM
BROUGHT BY EITHER PARTY HERETO AGAINST THE OTHER (AND/OR AGAINST ITS OFFICERS, DIRECTORS,
EMPLOYEES, AGENTS OR SUBSIDIARY OR AFFILIATED ENTITIES) ON ANY MATTERS WHATSOEVER ARISING OUT OF OR
IN ANY WAY CONNECTED WITH THIS LEASE, TENANT’S USE OR OCCUPANCY OF THE PREMISES AND/OR ANY CLAIM OF
INJURY OR DAMAGE, SHALL BE HEARD AND RESOLVED BY A REFEREE UNDER THE PROVISIONS OF THE CALIFORNIA
CODE OF CIVIL PROCEDURE, SECTIONS 638 — 645.1, INCLUSIVE (AS SAME MAY BE AMENDED, OR ANY SUCCESSOR
STATUTE(S) THERETO) (THE “REFEREE SECTIONS”). ANY FEE TO INITIATE THE
JUDICIAL REFERENCE PROCEEDINGS SHALL BE PAID BY THE PARTY INITIATING SUCH PROCEDURE; PROVIDED
HOWEVER, THAT THE COSTS AND FEES, INCLUDING ANY INITIATION FEE, OF SUCH PROCEEDING SHALL ULTIMATELY
BE BORNE IN ACCORDANCE WITH SECTION 14.6 ABOVE. THE VENUE OF THE PROCEEDINGS SHALL BE IN THE
COUNTY IN WHICH THE PREMISES ARE LOCATED. WITHIN TEN (10) DAYS OF DELIVERY BY ANY PARTY TO THE
OTHER PARTY OF A WRITTEN REQUEST TO RESOLVE ANY DISPUTE OR CONTROVERSY PURSUANT TO THIS SECTION
14.7(b), THE PARTIES SHALL AGREE UPON A SINGLE REFEREE WHO SHALL TRY ALL ISSUES, WHETHER OF FACT OR
LAW, AND REPORT A FINDING AND JUDGMENT ON SUCH ISSUES AS REQUIRED BY THE REFEREE SECTIONS. IF THE
PARTIES ARE UNABLE TO AGREE UPON A REFEREE WITHIN SUCH TEN (10) DAY PERIOD, THEN ANY PARTY MAY
THEREAFTER FILE A LAWSUIT IN THE COUNTY IN WHICH THE PREMISES ARE LOCATED FOR THE PURPOSE OF
APPOINTMENT OF A REFEREE UNDER CALIFORNIA CODE OF CIVIL PROCEDURE SECTIONS 638 AND 640, AS SAME MAY
BE AMENDED OF ANY SUCCESSOR STATUTE(S) THERETO. IF THE REFEREE IS APPOINTED BY THE COURT, THE
REFEREE SHALL BE A NEUTRAL AND IMPARTIAL RETIRED JUDGE WITH SUBSTANTIAL EXPERIENCE IN THE RELEVANT
MATTERS TO BE DETERMINED, FROM JAMS/ENDISPUTE, INC., THE AMERICAN ARBITRATION ASSOCIATION OR
SIMILAR MEDIATION/ARBITRATION ENTITY. THE PROPOSED REFEREE MAY BE CHALLENGED BY ANY PARTY FOR ANY
OF THE GROUNDS LISTED IN SECTION 641 OF THE CALIFORNIA CODE OF CIVIL PROCEDURE, AS SAME MAY BE
AMENDED OR ANY SUCCESSOR STATUTE(S) THERETO. THE REFEREE SHALL HAVE THE POWER TO DECIDE ALL ISSUES
OF FACT AND LAW AND REPORT HIS OR HER DECISION ON SUCH ISSUES, AND TO ISSUE ALL RECOGNIZED REMEDIES
AVAILABLE AT LAW OR IN EQUITY FOR ANY CAUSE OF ACTION THAT IS BEFORE THE REFEREE, INCLUDING AN
AWARD OF ATTORNEYS’ FEES AND COSTS IN ACCORDANCE WITH CALIFORNIA LAW. THE REFEREE SHALL NOT,
HOWEVER, HAVE THE POWER TO AWARD PUNITIVE DAMAGES, NOR ANY OTHER DAMAGES WHICH ARE NOT PERMITTED BY
THE EXPRESS PROVISIONS OF THIS LEASE, AND THE PARTIES HEREBY WAIVE ANY RIGHT TO RECOVER ANY SUCH
DAMAGES. THE PARTIES SHALL BE ENTITLED TO CONDUCT ALL DISCOVERY AS PROVIDED IN THE CALIFORNIA CODE
OF CIVIL PROCEDURE, AND THE REFEREE SHALL OVERSEE DISCOVERY AND MAY ENFORCE ALL DISCOVERY ORDERS IN
THE SAME MANNER AS ANY TRIAL COURT JUDGE, WITH RIGHTS TO REGULATE DISCOVERY AND TO ISSUE AND
ENFORCE SUBPOENAS, PROTECTIVE ORDERS AND OTHER LIMITATIONS ON DISCOVERY AVAILABLE UNDER CALIFORNIA
LAW. THE REFERENCE PROCEEDING SHALL BE CONDUCTED IN ACCORDANCE WITH CALIFORNIA LAW (INCLUDING THE
RULES OF EVIDENCE), AND IN ALL REGARDS, THE REFEREE SHALL FOLLOW CALIFORNIA LAW APPLICABLE AT THE
TIME OF THE REFERENCE PROCEEDING. IN ACCORDANCE WITH SECTION 644 OF THE CALIFORNIA CODE OF CIVIL
PROCEDURE, THE DECISION OF THE REFEREE UPON THE WHOLE ISSUE MUST STAND AS THE DECISION OF THE
COURT, AND UPON THE FILING OF THE STATEMENT OF DECISION WITH THE CLERK OF THE COURT, OR WITH THE
JUDGE IF THERE IS NO CLERK, JUDGMENT MAY BE ENTERED THEREON IN THE SAME MANNER AS IF THE ACTION HAD
BEEN TRIED BY THE COURT. THE PARTIES SHALL PROMPTLY AND DILIGENTLY COOPERATE WITH ONE ANOTHER AND
THE REFEREE, AND SHALL PERFORM SUCH ACTS AS MAY BE NECESSARY TO OBTAIN A PROMPT AND EXPEDITIOUS
RESOLUTION OF THE DISPUTE OR CONTROVERSY IN ACCORDANCE WITH THE TERMS OF THIS SECTION 14.7(b). TO
THE EXTENT THAT NO PENDING LAWSUIT HAS BEEN FILED TO OBTAIN THE APPOINTMENT OF A REFEREE, ANY
PARTY, AFTER THE ISSUANCE OF THE DECISION OF THE REFEREE, MAY APPLY TO THE COURT OF THE COUNTY IN
WHICH THE PREMISES ARE LOCATED FOR CONFIRMATION BY THE COURT OF THE DECISION OF THE REFEREE IN THE
SAME MANNER AS A PETITION FOR CONFIRMATION OF AN ARBITRATION AWARD PURSUANT TO CODE OF CIVIL
PROCEDURE SECTION 1285 ET SEQ. (AS SAME MAY BE AMENDED OR ANY SUCCESSOR STATUTE(S) THERETO).



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     SECTION 14.8. SATISFACTION OF JUDGMENT. The obligations of Landlord do not constitute the
personal obligations of the individual partners, trustees, directors, officers or shareholders of
Landlord or its constituent partners. Should Tenant recover a money judgment against Landlord,
such judgment shall be satisfied only from the interest of Landlord in the Project and out of the
rent or other income from such property receivable by Landlord or out of consideration received by
Landlord from the sale or other disposition of all or any part of Landlord’s right, title or
interest in the Project or from any insurance proceeds available to Landlord and no action for any
deficiency may be sought or obtained by Tenant.



ARTICLE XV. END OF TERM




     SECTION 15.1. HOLDING OVER. This Lease shall terminate without further notice upon the
expiration of the Term, and any holding over by Tenant after the expiration shall not constitute a
renewal or extension of this Lease, or give Tenant any rights under this Lease, except when in
writing signed by both parties. If Tenant holds over for any period after the Expiration Date (or
earlier termination) of the Term with or without the prior written consent of Landlord, such
possession shall constitute a month-to-month tenancy commencing on the first (1st) day following
the termination of this Lease and terminating thirty (30) days following delivery of written notice
of termination by either Landlord or Tenant to the other. In such event, possession shall be
subject to all of the terms of this Lease, except that the monthly Basic Rent shall be one hundred
thirty-seven and one-half percent (137.5%) of the Basic Rent for the month immediately preceding
the date of termination. Any such monthly hold-over rental shall be appropriately prorated for any
partial calendar month so long as Tenant has provided the requisite thirty days prior notice of
termination. If Tenant fails to surrender the Premises within forty-five (45) days following the
expiration of this Lease despite demand to do so by Landlord, Tenant shall indemnify and hold Landlord harmless from all loss or liability,
including without limitation, any claims made by any succeeding tenant relating to such failure to
surrender. The foregoing provisions of this Section are in addition to and do not affect
Landlord’s right of re-entry or any other rights of Landlord under this Lease or at law.



     SECTION 15.2. PERMITTED HOLD-OVER Notwithstanding anything to the contrary set forth above,
Tenant shall have the right, upon the expiration of the original Term of this Lease or any
extension thereof, to hold over in the Premises for a period not to exceed six (6) months upon the
same terms and conditions that were applicable to the Premises during the last month of the Term of
the Lease (except that the Basic Rent shall be one hundred thirty-seven and one-half percent
(137.5%) of the Basic Rent for the final month of the Term), by giving written notice of such
election to Landlord not less than eighteen (18) months prior to the scheduled Expiration Date, as
it may be extended. Such notice by Tenant shall provide that it is being delivered pursuant to
this Section 15.2 and shall specify the length of the hold-over period, which period shall not
thereafter be subject to change by Tenant.



     SECTION 15.3. MERGER OF TERMINATION. Subject to the provisions of Section 9.6, the voluntary
or other surrender of this Lease by Tenant, or a mutual termination of this Lease, shall terminate
any or all existing subleases unless Landlord, at its option, elects in writing to treat the
surrender or termination as an assignment to it of any or all subleases affecting the Premises.



     SECTION 15.4 SURRENDER OF PREMISES; REMOVAL OF PROPERTY. Subject to the provisions of Section
7.3 of this Lease and of the Work Letter attached hereto, upon the Expiration Date or upon any
earlier termination of this Lease, Tenant shall quit and surrender possession of the Premises to
Landlord in as good order, condition and repair as when received or as hereafter may be improved by
Landlord or Tenant, reasonable wear and tear, damage and casualty and repairs which are Landlord’s
obligation excepted, and shall, without expense to Landlord, remove or cause to be removed from the
Premises all wall coverings installed by Tenant, all personal property, removable trade fixtures,
and equipment and debris and shall perform all work required under Section 7.3 of this Lease and/or
the Work Letter attached hereto, except for any of such items that Landlord may by written
authorization allow to remain. Tenant shall repair all damage to the Premises resulting from the
removal, which repair shall include the repair of structural damage, provided that Tenant shall not
be required to patch carpeting, paint walls or patch small holes in the walls or floors. If Tenant
shall fail to comply with the provisions of this Section, Landlord may effect the removal and/or
make any repairs, and the actual and reasonable cost to Landlord shall be additional rent payable
by Tenant upon demand. If Tenant fails to remove Tenant’s personal property from the Premises upon
the expiration of the Term, Landlord may upon three (3) business days notice to Tenant referencing
this Section 15.4, remove, store, dispose of and/or retain such personal property, at Landlord’s
option, in accordance with then applicable laws, all at the expense of Tenant. If requested by
Landlord, Tenant shall execute, acknowledge and deliver to Landlord an instrument in writing
releasing and quitclaiming to Landlord all right, title and interest of Tenant in the Premises.



ARTICLE XVI. PAYMENTS AND NOTICES




     All sums payable by Tenant to Landlord shall be deemed to be rent under this Lease and shall
be paid, without deduction or offset (except as otherwise provided in this Lease), in lawful money
of the United States to Landlord at its address set forth in Item 12 of the Basic Lease Provisions,
or at any other place as Landlord may designate in writing. Unless this Lease expressly provides
otherwise, as for example in the payment of Basic Rent and the Tenant’s Share of Operating Costs
pursuant to Sections 4.1 and 4.2, then any payment from either party shall be due and payable
within twenty (20) days after delivery to such party, at its notice address herein, of written
demand and supporting invoices/documentation with respect thereto. All payments requiring
proration shall be prorated on the basis of a thirty (30) day month and a three hundred sixty (360)
day year. Any notice, election, demand, consent, approval or other communication to be given or
other document to be delivered by either party to the other may be delivered by courier or
overnight delivery service, return receipt requested, to the other party, or may be deposited in
the United States mail, duly registered or certified, postage prepaid, return receipt requested,



29









 




and addressed to the other party at the address set forth in Item 12 of the Basic Lease Provisions.
Either party may, by written notice to the other, served in the manner provided in this Article,
designate a different address for notices.




ARTICLE XVII. RULES AND REGULATIONS




     Subject to the preamble to Exhibit E, Tenant agrees to observe faithfully and comply
with the Rules and Regulations, attached as Exhibit E, and any reasonable and
nondiscriminatory amendments, modifications and/or additions as may be adopted and published by
written notice to tenants by Landlord for the safety, care, security, good order, or cleanliness of
the Premises, Building, Project and Common Areas; provided, however, that no amendments,
modifications or additions shall interfere with Tenant’s permitted use of the Premises or
materially decrease Tenant’s rights under this Lease. Landlord shall not be liable to Tenant for
any violation of the Rules and Regulations or the breach of any covenant or condition in any lease
by any other tenant or such tenant’s agents, employees, contractors, guests or invitees. One or
more waivers by Landlord of any breach of the Rules and Regulations by Tenant or by any other
tenant(s) shall not be a waiver of any subsequent breach of that rule or any other. Landlord shall
not enforce the Rules and Regulations in an unreasonable or discriminatory manner or in a manner
which shall unreasonably interfere with or restrict the normal and customary use of the Premises by
Tenant for normal and customary business office operations. In the case of any conflict between
the Rules and Regulations and this Lease, this Lease shall be controlling.



ARTICLE XVIII. BROKER’S COMMISSION




     The parties recognize as the broker(s) who negotiated this Lease the firm(s), whose name(s) is
(are) stated in Item 10 of the Basic Lease Provisions, and agree that Landlord shall be responsible
for the payment of brokerage commissions to those broker(s) unless otherwise provided in this
Lease. It is understood and agreed that Landlord’s Broker represents only Landlord in this
transaction and that Tenant’s Broker (if any) represents only Tenant. Each party warrants that it
has had no dealings with any other real estate broker or agent in connection with the negotiation
of this Lease, and agrees to indemnify and hold the other party harmless from any cost, expense or
liability (including reasonable attorneys’ fees) for any compensation, commissions or charges
claimed by any other real estate broker or agent employed by the indemnifying party in connection
with the negotiation of this Lease. The foregoing agreement shall survive the termination of this
Lease.



ARTICLE XIX. TRANSFER OF LANDLORD’S INTEREST




     In the event of any transfer of Landlord’s interest in the Premises, the transferor shall be
automatically relieved of all further obligations on the part of Landlord accruing under this Lease
from and after the date of the transfer, provided that such transferee assumes the obligations as
to which Landlord is being relieved, and the transferor shall be relieved of any obligation to pay
any funds in which Tenant has an interest to the extent that such funds have been turned over,
subject to that interest, to the transferee and Tenant is notified of the transfer as required by
law. It is intended that the covenants and obligations contained in this Lease on the part of
Landlord shall, subject to the foregoing, be binding on Landlord, its successors and assigns, only
during and with respect to obligations arising during their respective successive periods of
ownership.



ARTICLE XX. INTERPRETATION




     SECTION 20.1. GENDER AND NUMBER. Whenever the context of this Lease requires, the words
“Landlord” and “Tenant” shall include the plural as well as the singular, and words used in neuter,
masculine or feminine genders shall include the others.



     SECTION 20.2. HEADINGS. The captions and headings of the articles and sections of this Lease
are for convenience only, are not a part of this Lease and shall have no effect upon its
construction or interpretation.



     SECTION 20.3. JOINT AND SEVERAL LIABILITY. If more than one person or entity is named as
Tenant, the obligations imposed upon each shall be joint and several and the act of or notice from,
or notice or refund to, or the signature of, any one or more of them shall be binding on all of
them with respect to the tenancy of this Lease, including, but not limited to, any renewal,
extension, termination or modification of this Lease.



     SECTION 20.4. SUCCESSORS. Subject to Articles IX and XIX, all rights and liabilities given to
or imposed upon Landlord and Tenant shall extend to and bind their respective heirs, executors,
administrators, successors and assigns. Nothing contained in this Section is intended, or shall be
construed, to grant to any person other than Landlord and Tenant and their successors and assigns
any rights or remedies under this Lease.



     SECTION 20.5. TIME OF ESSENCE. Time is of the essence with respect to the performance of
every provision of this Lease.



     SECTION 20.6. CONTROLLING LAW/VENUE. This Lease shall be governed by and interpreted in
accordance with the laws of the State of California. Any litigation commenced concerning any
matters whatsoever arising out of or in any way connected to this Lease shall be initiated in the
Superior Court of the county in which the Project is located.



     SECTION 20.7. SEVERABILITY. If any term or provision of this Lease, the deletion of which
would not adversely affect the receipt of any material benefit by either party or the deletion of
which is consented to by the party adversely affected, shall be held invalid or unenforceable to
any extent, the remainder of this Lease shall not be affected and each term and provision of this
Lease shall be valid and enforceable to the fullest extent permitted by law.



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     SECTION 20.8. WAIVER AND CUMULATIVE REMEDIES. One or more waivers by Landlord or Tenant of
any breach of any term, covenant or condition contained in this Lease shall not be a waiver of any
subsequent breach of the same or any other term, covenant or condition. Consent to any act by one
of the parties shall not be deemed to render unnecessary the obtaining of that party’s consent to
any subsequent act. No breach by Tenant or Landlord of this Lease shall be deemed to have been
waived by the other party unless the waiver is in a writing signed by Landlord or Tenant, as
applicable. The rights and remedies of Landlord and Tenant under this Lease shall be cumulative
and in addition to any and all other rights and remedies which Landlord and Tenant may have.



     SECTION 20.9. INABILITY TO PERFORM. In the event that either party shall be delayed or
hindered in or prevented from the performance of any work or in performing any act required under
this Lease by reason of any cause beyond the reasonable control of that party, then the performance
of the work or the doing of the act shall be excused for the period of the delay and the time for performance shall be extended for a period equivalent to the
period of the delay. The provisions of this Section shall not operate to excuse Tenant from the
prompt payment of rent, Landlord from the payment of any sums due Tenant hereunder, or either party
from the timely performance of any other obligation under this Lease within such party’s reasonable
control.



     SECTION 20.10. ENTIRE AGREEMENT. This Lease and its exhibits and other attachments cover in
full each and every agreement of every kind between the parties concerning the Premises, the
Building, and the Project, and all preliminary negotiations, oral agreements, understandings and/or
practices, except those contained in this Lease, are superseded and of no further effect. Tenant
and Landlord waive their respective rights to rely on any representations or promises made by the
other or others which are not contained in this Lease. No verbal agreement or implied covenant
shall be held to modify the provisions of this Lease, any statute, law, or custom to the contrary
notwithstanding.



     SECTION 20.11. QUIET ENJOYMENT. So long as an Event of Default shall not have occurred under
this Lease, and subject to the other provisions of this Lease, Tenant shall have the right of quiet
enjoyment and use of the Premises for the Term without hindrance or interruption by Landlord or any
other person claiming by or through Landlord.



     SECTION 20.12. SURVIVAL. All covenants of Landlord or Tenant which reasonably would be
intended to survive the expiration or sooner termination of this Lease, including without
limitation any warranty or indemnity hereunder, shall so survive and continue to be binding upon
and inure to the benefit of the respective parties and their successors and assigns.



     SECTION 20.13. INTERPRETATION. This Lease shall not be construed in favor of or against
either party, but shall be construed as if both parties prepared this Lease.



ARTICLE XXI. EXECUTION AND RECORDING




     SECTION 21.1. COUNTERPARTS. This Lease may be executed in one or more counterparts, each of
which shall constitute an original and all of which shall be one and the same agreement.



     SECTION 21.2. CORPORATE, LIMITED LIABILITY COMPANY AND PARTNERSHIP AUTHORITY. If Landlord or
Tenant is a corporation, limited liability company or partnership, each individual executing this
Lease on behalf of the corporation, limited liability company or partnership represents and
warrants that he or she is duly authorized to execute and deliver this Lease on behalf of the
corporation, limited liability company or partnership, and that this Lease is binding upon the
corporation, limited liability company or partnership in accordance with its terms.



     SECTION 21.3. EXECUTION OF LEASE; NO OPTION OR OFFER. The submission of this Lease to Tenant
shall be for examination purposes only, and shall not constitute an offer to or option for Tenant
to lease the Premises. Execution of this Lease by Tenant and its return to Landlord shall not be
binding upon Landlord, notwithstanding any time interval, until Landlord has in fact executed and
delivered this Lease to Tenant, it being intended that this Lease shall only become effective upon
execution by Landlord and delivery of a fully executed counterpart to Tenant.



     SECTION 21.4. RECORDING. Tenant shall not record this Lease without the prior written consent
of Landlord. Tenant, upon the request of Landlord, shall execute and acknowledge a “short form”
memorandum of this Lease for recording purposes.



     SECTION 21.5. AMENDMENTS. No amendment or termination of this Lease shall be effective unless
in writing signed by authorized signatories of Tenant and Landlord, or by their respective
successors in interest. No actions, policies, oral or informal arrangements, business dealings or
other course of conduct by or between the parties shall be deemed to modify this Lease in any
respect.



     SECTION 21.6. EXECUTED COPY. Any fully executed photocopy or similar reproduction of this
Lease shall be deemed an original for all purposes.



     SECTION 21.7. ATTACHMENTS. All exhibits, amendments, riders and addenda attached to this
Lease are hereby incorporated into and made a part of this Lease.



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ARTICLE XXII. MISCELLANEOUS




     SECTION 22.1. NONDISCLOSURE OF LEASE TERMS. Tenant and Landlord acknowledge and agree,
subject to the exceptions and qualifications set forth below, that the terms of this Lease are
confidential and constitute proprietary information of Landlord and Tenant. Tenant and Landlord
agree that they, and their respective partners, officers, directors, employees and attorneys, shall
not intentionally and voluntarily disclose, by public filings or otherwise, the terms and conditions of this Lease to any other tenant or
apparent prospective tenant of the Building or the Project, or to another landlord or to any media,
either directly or indirectly, without the prior written consent of the other, except to disclose
the location and size of the Premises and the term of the Lease; provided, however, notwithstanding
the foregoing, Tenant and Landlord may disclose the terms of this Lease to prospective assignees of
this Lease and prospective subtenants under this Lease, or to purchasers of the Building(s) or of
the Landlord or Tenant, or to their respective lenders and/or investors, or to their lawyers,
accountants, brokers and others who are providing services and need to know the terms and
conditions of this Lease in connection with the providing of such services, or as otherwise
required by applicable laws, including filings required by applicable government agencies.



     SECTION 22.2. [INTENTIONALLY OMITTED]



     SECTION 22.3. CHANGES REQUESTED BY LENDER. If, in connection with obtaining financing for the
Project, the lender shall request reasonable modifications in this Lease as a condition to the
financing, Tenant will not unreasonably withhold or delay its consent, provided that the
modifications do not increase the monetary obligations of Tenant or materially increase the
non-monetary obligations of Tenant or materially and adversely affect the leasehold interest
created by this Lease.



     SECTION 22.4. MORTGAGEE PROTECTION. No act or failure to act on the part of Landlord which
would otherwise entitle Tenant to be relieved of its obligations hereunder shall result in such a
release or termination unless (a) Tenant has given notice by registered or certified mail to any
beneficiary of a deed of trust or mortgage covering the Building whose address has been furnished
to Tenant and (b) such beneficiary is afforded a reasonable opportunity to cure the default by
Landlord (which in no event shall be more than sixty (60) days), including, if necessary to effect
the cure, time to obtain possession of the Building by power of sale or judicial foreclosure
provided that such foreclosure remedy is diligently pursued. Tenant agrees that each beneficiary
of a deed of trust or mortgage covering the Building is an express third party beneficiary hereof,
Tenant shall have no right or claim for the collection of any deposit from such beneficiary or from
any purchaser at a foreclosure sale unless such beneficiary or purchaser shall have actually
received and not refunded the deposit, and Tenant shall comply with any written directions by any
beneficiary to pay rent due hereunder directly to such beneficiary without determining whether a
default exists under such beneficiary’s deed of trust.



     SECTION 22.5. COVENANTS AND CONDITIONS. All of the provisions of this Lease shall be
construed to be conditions as well as covenants as though the words specifically expressing or
imparting covenants and conditions were used in each separate provision.



     SECTION 22.6. SECURITY MEASURES. At its election, Landlord may provide a security service or
other security measures for the exterior of the Building or the Common Areas of the Project.
Tenant hereby acknowledges that Landlord shall have no obligation whatsoever to provide guard
service or other security measures for the benefit of the Premises or the Project. Tenant assumes
all responsibility for the protection of Tenant, its employees, agents, invitees and property from
acts of third parties. Nothing herein contained shall prevent Landlord, at its sole option, from
providing security protection for the Project or any part thereof, in which event the cost thereof
shall be included within the definition of Site Costs. Tenant’s interior security systems for the
Building leased by Tenant shall not be subject to Landlord’s approval thereto, provided that such
systems do not interfere with any Building Systems and are removed by Tenant at its expense upon
termination of this Lease. Without limiting the generality of the foregoing, Tenant shall be
permitted to install security cameras in the Building leased by Tenant, subject to any reasonable
requirements imposed by Landlord for compliance with laws, cosmetic considerations, safety and the
like; provided that such cameras shall be removed by Tenant at is expense upon termination of this
Lease. Tenant shall not have to pay additional consideration to Landlord for its rights under this
Section.



     SECTION 22.7. ARBITRATION OF DISPUTES.



     (a) EXCEPT AS SET FORTH IN SUBPARAGRAPH (b) BELOW, IN THE EVENT OF ANY CLAIMS OR DISPUTES
BETWEEN LANDLORD AND TENANT ARISING OUT OF, OR RELATING TO THE LEASE, EXCEPT WITH RESPECT TO
ACTIONS FOR UNLAWFUL OR FORCIBLE DETAINER, EITHER PARTY MAY CAUSE THE DISPUTE TO BE SUBMITTED TO
EITHER JAMS/ENDISPUTE (“JAMS”) OR THE AMERICAN ARBITRATION ASSOCIATION (“AAA”), OR THEIR ITS
SUCCESSORS, IN THE COUNTY IN WHICH THE BUILDING IS SITUATED FOR BINDING ARBITRATION BEFORE A SINGLE
ARBITRATOR. HOWEVER, EACH PARTY RESERVES THE RIGHT TO SEEK A PROVISIONAL REMEDY BY JUDICIAL
ACTION. NO ARBITRATION ELECTION BY EITHER PARTY PURSUANT TO THIS SUBSECTION SHALL BE EFFECTIVE IF
MADE LATER THAN THIRTY (30) DAYS FOLLOWING SERVICE OF A JUDICIAL SUMMONS AND COMPLAINT BY OR UPON
SUCH PARTY CONCERNING THE DISPUTE. THE ARBITRATION ELECTION SHALL DESIGNATE WHETHER THE
ARBITRATION WILL BE CONDUCTED WITH JAMS OR AAA. THE ARBITRATION SHALL BE CONDUCTED IN ACCORDANCE
WITH THE RULES OF PRACTICE AND PROCEDURE OF JAMS OR THE COMMERCIAL ARBITRATION RULES OF THE AAA, AS
APPLICABLE, AND OTHERWISE PURSUANT TO THE CALIFORNIA ARBITRATION ACT (CODE OF CIVIL PROCEDURE
SECTIONS 1280 ET SEQ.). NOTWITHSTANDING THE FOREGOING, THE ARBITRATOR IS SPECIFICALLY DIRECTED TO
LIMIT DISCOVERY TO THAT WHICH IS ESSENTIAL TO THE EFFECTIVE



32









 







PROSECUTION OR DEFENSE OF THE ACTION, AND IN NO EVENT SHALL SUCH DISCOVERY BY EITHER PARTY
INCLUDE MORE THAN ONE NON-EXPERT WITNESS DEPOSITION UNLESS BOTH PARTIES OTHERWISE AGREE. THE
ARBITRATOR SHALL, TO THE EXTENT APPLICABLE, FOLLOW THE SUBSTANTIVE LAW OF CALIFORNIA AND SHALL
RENDER A REASONED WRITTEN DECISION WITHIN TWENTY DAYS FOLLOWING THE HEARING. THE ARBITRATOR SHALL
APPORTION THE COSTS OF THE ARBITRATION, TOGETHER WITH THE ATTORNEYS’ FEES OF THE PARTIES, IN THE
MANNER DEEMED EQUITABLE BY THE ARBITRATOR, IT BEING THE INTENTION OF THE PARTIES THAT THE
PREVAILING PARTY ORDINARILY BE ENTITLED TO RECOVER ITS REASONABLE COSTS AND FEES. JUDGMENT UPON
ANY AWARD RENDERED BY THE ARBITRATOR MAY BE ENTERED BY ANY COURT HAVING JURISDICTION.



     (b) THE PROVISIONS OF THIS SECTION SHALL NOT APPLY TO:



          (i) ANY UNLAWFUL DETAINER ACTION INSTITUTED BY LANDLORD AS A RESULT OF A DEFAULT OR ALLEGED
DEFAULT BY TENANT PURSUANT TO THIS LEASE;




          (ii) ANY REQUEST OR APPLICATION FOR AN ORDER OR DECREE GRANTING ANY PROVISIONAL OR ANCILLARY
REMEDY (SUCH AS A TEMPORARY RESTRAINING ORDER OR INJUNCTION) WITH RESPECT TO ANY RIGHT OR
OBLIGATION OF EITHER PARTY TO THIS LEASE, AND ANY PRELIMINARY DETERMINATION OF THE UNDERLYING
CONTROVERSY, DISPUTE, QUESTION OR ISSUE AS IS REQUIRED TO DETERMINE WHETHER OR NOT TO GRANT THE
RELIEF REQUESTED OR APPLIED FOR. A FINAL AND BINDING DETERMINATION OF SUCH UNDERLYING CONTROVERSY,
DISPUTE, QUESTION OR ISSUE SHALL BE MADE BY AN ARBITRATION CONDUCTED PURSUANT TO THIS SECTION AFTER
AN APPROPRIATE TRANSFER UPON MOTION OR APPLICATION OF EITHER PARTY HERETO. ANY ANCILLARY OR
PROVISIONAL RELIEF WHICH IS GRANTED PURSUANT TO THIS CLAUSE (iii) SHALL CONTINUE IN EFFECT PENDING
AN ARBITRATION DETERMINATION AND ENTRY OF JUDGMENT THEREON PURSUANT TO THIS SECTION.




          (iii) EXERCISE OF ANY REMEDIES TO ENFORCE ANY JUDGMENT ENTERED BASED UPON A DETERMINATION MADE
BY ARBITRATION PURSUANT TO THIS SECTION.




     SECTION 22.8. CONSENT/DUTY TO ACT REASONABLY. Except where a party is expressly given the
right to consent to any matter in its sole or absolute discretion, and except for matters which
could have an adverse effect on the Building Structure or Building Systems or the exterior
appearance of the Building, whereupon in each such case Landlord’s duty is to act in good faith and
in compliance with the Lease, any time the consent of Landlord or Tenant is required, such consent
shall not be unreasonably withheld, conditioned or delayed. Whenever the Lease grants Landlord or
Tenant the right to take action, exercise discretion, establish rules and regulations or make
allocations or other determinations (other than decisions to exercise expansion, contraction,
cancellation, termination or renewal options), then except as otherwise provided herein, Landlord
and Tenant shall act reasonably and in good faith and take no action which might result in the
frustration of the reasonable expectations of a sophisticated tenant or landlord concerning the
benefits to be enjoyed under the Lease



     SECTION 22.9. ACCESS. Subject to the terms and conditions of this Lease and except in
emergency circumstances or during periods of necessary repair, Tenant shall be granted access to
the Building, the Premises and the parking provided to the Building twenty-four (24) hours per day,
seven (7) days per week, every day of the year.




	 	 	 	 	 	 	 	 	 	 	 	 	 
	LANDLORD:TENANT:	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	IRVINE COMMERCIAL PROPERTY 

COMPANY LLC,

a Delaware limited liability company	 	 	 	BROADCOM CORPORATION,

a California corporation	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	By:	 	/s/ Richard I. Gilchrist	 	 	 	By:	 	/s/ Eric Brandt	 	 
	 	 	 	 	 	 	 	 	 	 	 
	 

	 	Richard I. Gilchrist

President, Investment Properties Group
	 	 	 	 	 	Name (Print):

Title (Print):
	 	Eric Brandt

Senior Vice President &

Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	By:

	 	E. Valjean Wheeler
	 	 	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 
	 

	 	E. Valjean Wheeler
	 	 	 	 	 	Name:	 	 	 	 
	 

	 	President, Office Properties
	 	 	 	 	 	Title:	 	 	 	 






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