exv10w1



 







EXHIBIT 10.1




LEASE




BETWEEN




METROPOLITAN LIFE INSURANCE COMPANY (LANDLORD)




AND




GENITOPE CORPORATION (TENANT)




SEAPORT CENTRE




Redwood City, California





 









 









TABLE OF CONTENTS




	 	 	 	 	 
	 	 	PAGE	 
	ARTICLE ONE — BASIC LEASE PROVISIONS
	 	 	1	 
	1.01 BASIC LEASE PROVISIONS
	 	 	1	 
	1.02 ENUMERATION OF EXHIBITS & RIDER(S)
	 	 	2	 
	1.03 DEFINITIONS
	 	 	2	 
	 	 	 	 
	ARTICLE TWO — PREMISES, TERM, FAILURE TO GIVE POSSESSION, COMMON AREAS AND PARKING
	 	 	6	 
	2.01 LEASE OF PREMISES
	 	 	6	 
	2.02 TERM
	 	 	6	 
	2.03 FAILURE TO GIVE POSSESSION
	 	 	6	 
	2.04 AREA OF PREMISES
	 	 	6	 
	2.05 CONDITION OF PREMISES
	 	 	6	 
	2.06 COMMON AREAS & PARKING
	 	 	6	 
	 	 	 	 
	ARTICLE THREE — RENT
	 	 	7	 
	 	 	 	 
	ARTICLE FOUR — OPERATING EXPENSES RENT ADJUSTMENTS AND PAYMENTS
	 	 	7	 
	4.01 TENANT’S SHARE OF OPERATING EXPENSES
	 	 	7	 
	4.02 RENT ADJUSTMENTS
	 	 	7	 
	4.03 STATEMENT OF LANDLORD
	 	 	8	 
	4.04 BOOKS AND RECORDS
	 	 	8	 
	4.05 TENANT OR LEASE SPECIFIC TAXES
	 	 	8	 
	 	 	 	 
	ARTICLE FIVE — SECURITY DEPOSIT
	 	 	9	 
	 	 	 	 
	ARTICLE SIX -UTILITIES & SERVICES
	 	 	9	 
	6.01 LANDLORD’S GENERAL SERVICES
	 	 	9	 
	6.02 TENANT TO OBTAIN & PAY DIRECTLY
	 	 	9	 
	6.03 TELEPHONE SERVICES
	 	 	10	 
	6.04 FAILURE OR INTERRUPTION OF UTILITY OR SERVICE
	 	 	10	 
	6.05 CHOICE OF SERVICE PROVIDER
	 	 	10	 
	6.06 SIGNAGE
	 	 	10	 
	 	 	 	 
	ARTICLE SEVEN — POSSESSION, USE AND CONDITION OF PREMISES
	 	 	11	 
	7.01 POSSESSION AND USE OF PREMISES
	 	 	11	 
	7.02 HAZARDOUS MATERIAL
	 	 	11	 
	7.03 LANDLORD ACCESS TO PREMISES; APPROVALS
	 	 	13	 
	7.04 QUIET ENJOYMENT
	 	 	13	 
	 	 	 	 
	ARTICLE EIGHT — MAINTENANCE
	 	 	13	 
	8.01 LANDLORD’S MAINTENANCE
	 	 	13	 
	8.02 TENANT’S MAINTENANCE
	 	 	14	 
	 	 	 	 
	ARTICLE NINE — ALTERATIONS AND IMPROVEMENTS
	 	 	14	 
	9.01 TENANT ALTERATIONS
	 	 	14	 
	9.02 LIENS
	 	 	15	 
	 	 	 	 
	ARTICLE TEN — ASSIGNMENT AND SUBLETTING
	 	 	15	 
	10.01 ASSIGNMENT AND SUBLETTING
	 	 	15	 
	10.02 RECAPTURE
	 	 	16	 
	10.03 EXCESS RENT
	 	 	17	 
	10.04 TENANT LIABILITY
	 	 	17	 
	10.05 ASSUMPTION AND ATTORNMENT
	 	 	17	 
	 	 	 	 
	ARTICLE ELEVEN — DEFAULT AND REMEDIES
	 	 	17	 
	11.01 EVENTS OF DEFAULT
	 	 	17	 
	11.02 LANDLORD’S REMEDIES
	 	 	18	 
	11.03 ATTORNEY’S FEES
	 	 	19	 
	11.04 BANKRUPTCY
	 	 	19	 
	11.05 LANDLORD’S DEFAULT
	 	 	20	 
	 	 	 	 
	ARTICLE TWELVE — SURRENDER OF PREMISES
	 	 	20	 
	12.01 IN GENERAL
	 	 	20	 
	12.02 LANDLORD’S RIGHTS
	 	 	20	 
	 	 	 	 
	ARTICLE THIRTEEN — HOLDING OVER
	 	 	20	 






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	 	 	PAGE	 
	ARTICLE FOURTEEN — DAMAGE BY FIRE OR OTHER CASUALTY
	 	 	21	 
	14.01 SUBSTANTIAL UNTENANTABILITY
	 	 	21	 
	14.02 INSUBSTANTIAL UNTENANTABILITY
	 	 	21	 
	14.03 RENT ABATEMENT
	 	 	21	 
	14.04 WAIVER OF STATUTORY REMEDIES
	 	 	22	 
	 	 	 	 
	ARTICLE FIFTEEN — EMINENT DOMAIN
	 	 	22	 
	15.01 TAKING OF WHOLE OR SUBSTANTIAL PART
	 	 	22	 
	15.02 TAKING OF PART
	 	 	22	 
	15.03 COMPENSATION
	 	 	22	 
	 	 	 	 
	ARTICLE SIXTEEN — INSURANCE
	 	 	22	 
	16.01 TENANT’S INSURANCE
	 	 	22	 
	16.02 FORM OF POLICIES
	 	 	23	 
	16.03 LANDLORD’S INSURANCE
	 	 	23	 
	16.04 WAIVER OF SUBROGATION
	 	 	23	 
	16.05 NOTICE OF CASUALTY
	 	 	24	 
	 	 	 	 
	ARTICLE SEVENTEEN — WAIVER OF CLAIMS AND INDEMNITY
	 	 	24	 
	17.01 WAIVER OF CLAIMS
	 	 	24	 
	17.02 INDEMNITY BY TENANT
	 	 	24	 
	17.03 WAIVER OF CONSEQUENTIAL DAMAGES
	 	 	24	 
	 	 	 	 
	ARTICLE EIGHTEEN — RULES AND REGULATIONS
	 	 	24	 
	18.01 RULES
	 	 	24	 
	18.02 ENFORCEMENT
	 	 	25	 
	 	 	 	 
	ARTICLE NINETEEN — LANDLORD’S RESERVED RIGHTS
	 	 	25	 
	 	 	 	 
	ARTICLE TWENTY — ESTOPPEL CERTIFICATE
	 	 	25	 
	20.01 IN GENERAL
	 	 	25	 
	20.02 ENFORCEMENT
	 	 	25	 
	 	 	 	 
	ARTICLE TWENTY-ONE – INTENTIONALLY OMITTED
	 	 	25	 
	 	 	 	 
	ARTICLE TWENTY-TWO — REAL ESTATE BROKERS
	 	 	25	 
	 	 	 	 
	ARTICLE TWENTY-THREE — MORTGAGEE PROTECTION
	 	 	26	 
	23.01 SUBORDINATION AND ATTORNMENT
	 	 	26	 
	23.02 MORTGAGEE PROTECTION
	 	 	26	 
	 	 	 	 
	ARTICLE TWENTY-FOUR — NOTICES
	 	 	26	 
	 	 	 	 
	ARTICLE TWENTY-FIVE — EXERCISE FACILITY
	 	 	27	 
	 	 	 	 
	ARTICLE TWENTY-SIX — MISCELLANEOUS
	 	 	27	 
	26.01 LATE CHARGES
	 	 	27	 
	26.02 NO JURY TRIAL; VENUE; JURISDICTION
	 	 	27	 
	26.03 DEFAULT UNDER OTHER LEASE
	 	 	28	 
	26.04 OPTION
	 	 	28	 
	26.05 TENANT AUTHORITY
	 	 	28	 
	26.06 ENTIRE AGREEMENT
	 	 	28	 
	26.07 MODIFICATION OF LEASE FOR BENEFIT OF MORTGAGEE
	 	 	28	 
	26.08 EXCULPATION
	 	 	28	 
	26.09 ACCORD AND SATISFACTION
	 	 	28	 
	26.10 LANDLORD’S OBLIGATIONS ON SALE OF BUILDING
	 	 	28	 
	26.11 BINDING EFFECT
	 	 	29	 
	26.12 CAPTIONS
	 	 	29	 
	26.13 TIME; APPLICABLE LAW; CONSTRUCTION
	 	 	29	 
	26.14 ABANDONMENT
	 	 	29	 
	26.15 LANDLORD’S RIGHT TO PERFORM TENANT’S DUTIES
	 	 	29	 
	26.16 SECURITY SYSTEM
	 	 	29	 
	26.17 NO LIGHT, AIR OR VIEW EASEMENTS
	 	 	29	 
	26.18 RECORDATION
	 	 	29	 
	26.19 SURVIVAL
	 	 	29	 
	25.20 EXHIBITS OR RIDERS
	 	 	30	 






ii









 








LEASE




ARTICLE ONE

BASIC LEASE PROVISIONS




1.01 BASIC LEASE PROVISIONS




In the event of any conflict between these Basic Lease Provisions and any other Lease provision,
such other Lease provision shall control.




	(1)  	BUILDING AND ADDRESS:






Building 12, with multiple street addresses for the multiple suites therein, including

595 Penobscot Drive (which is the address of the Premises)

Redwood City, California 94063


Building Number 12, located in Phase II (Tenant’s Phase”) of Seaport Centre




	(2)  	LANDLORD AND ADDRESS:






Metropolitan Life Insurance Company,

a New York corporation


Notices to Landlord shall be addressed:




Metropolitan Life Insurance Company

c/o Seaport Centre Manager

701 Chesapeake Drive

Redwood City, CA 94063




with copies to the following:




Metropolitan Life Insurance Company

400 South El Camino Real, Suite 800

San Mateo, CA 94402

Attention: Assistant Vice President




	(3)  	TENANT; CURRENT ADDRESS & TAX ID:





	 	 	 	 	 	 	 	 	 
	(a)

	 	Name:
	 	Genitope Corporation	 	 	 	 
	(b)

	 	State of incorporation:
	 	Delaware	 	 	 	 
	(c)

	 	Tax Identification Number:
	 	California:
	 	 	1978582	 
	

	 	 	 	Federal:
	 	 	77-0436313	 







Tenant shall notify Landlord of any change in the foregoing.


Notices to Tenant shall be addressed:




Genitope Corporation

595 Penobscot Drive

Redwood City, California 94063

Attention: Chief Financial Officer & General Counsel




	(4)  	DATE OF LEASE: as of March 10, 2005
	 
	(5)  	LEASE TERM: sixteen (16) months
	 
	(6)  	COMMENCEMENT DATE: March 12, 2005
	 
	(7)  	EXPIRATION DATE: the last day of the 16th month period commencing on the Commencement Date
	 
	(8)  	MONTHLY BASE RENT (initial monthly installment due upon Tenant’s execution):





	 	 	 	 	 
	Period from/to	 	Monthly	 	Monthly Rate/SF of Rentable Area
	Months 01 — 12

	 	$18,512.00
	 	$1.00
	Months 13 — 16

	 	$19,437.60
	 	$1.05







	(9)  	RENT ADJUSTMENT DEPOSIT (initial monthly rate, until further notice): $11,690.00 (initial monthly
installment due upon Tenant’s
execution)
	 
	(10)  	RENTABLE AREA OF THE PREMISES: 18,512 square feet
	 
	(11)  	RENTABLE AREA OF THE BUILDING 82,320 square feet




1









 













	(12)  	RENTABLE AREA OF THE PHASE: 235,620 square feet
	 
	(13)  	RENTABLE AREA OF THE PROJECT: 537,444 square feet
	 
	(14)  	SECURITY DEPOSIT: Sixty-two Thousand Two Hundred Fifty-five Dollars ($62,255.00) due upon
Tenant’s execution





	 	 	 	 	 
	(15)

	 	SUITE NUMBER &/OR ADDRESS OF PREMISES:
	 	595 Penobscot Drive
	

	 	 	 	Redwood City, California 94063







	(16)  	TENANT’S SHARE:





	 	 	 	 	 
	Tenant’s Building Share:

	 	 	22.5	%
	Tenant’s Phase Share:

	 	 	7.9	%
	Tenant’s Project Share:

	 	 	3.4	%







	(17)  	TENANT’S USE OF PREMISES: General office use,
biotechnology research and
development, and quality-control
laboratory use consistent with
Tenant’s use of the Premises as
of the Date of Lease.
	 
	(18)  	PARKING SPACES: sixty-one (61)






	(19)  	BROKERS:





	 	 	 
	Landlord’s Broker:

	 	Howard Dallmar & Kristoph Lodge of Cornish & Carey
	 
	 	 
	Tenant’s Broker:

	 	Bill Sawyer of Cornish & Carey







	1.02  	ENUMERATION OF EXHIBITS & RIDER(S)





The Exhibits and Rider(s) set forth below and attached to this Lease are incorporated in this Lease
by this reference:



	 	 	 
	EXHIBIT A

	 	Plan of Premises
	EXHIBIT B

	 	Workletter Agreement (intentionally omitted)
	EXHIBIT C

	 	Site Plan of Project
	EXHIBIT D

	 	Permitted Hazardous Material
	RIDER 1

	 	Intentionally omitted

	RIDER 2

	 	Additional Provisions






1.03 DEFINITIONS




For purposes hereof, the following terms shall have the following meanings:



ADJUSTMENT YEAR: The applicable calendar year or any portion thereof after the Commencement Date
of this Lease for which a Rent Adjustment computation is being made.



AFFILIATE: Any Person (as defined below) which is controlled by, controls, or is under common
control with Tenant. The word Person means an individual, partnership, trust, corporation, limited
liability company, firm or other entity. For purposes of this definition, the word “control,”
means, with respect to a Person that is a corporation or a limited liability company, the right to
exercise, directly or indirectly, more than sixty percent (60%) of the voting rights attributable
to the shares or membership interests of the controlled Person and, with respect to a Person that
is not a corporation, the possession, directly or indirectly, of the power at all times to direct
or cause the direction of the management of the controlled Person.



BUILDING: Each building in which the Premises is located, as specified in Section 1.01(1).



BUILDING OPERATING EXPENSES: Those Operating Expenses described in Section 4.01.



COMMENCEMENT DATE: The date specified in Section 1.01(6) as the Projected Commencement Date,
unless changed by operation of Article Two or Rider 2.



COMMON AREAS: All areas of the Project made available by Landlord from time to time for the
general common use or benefit of the tenants of the Building or Project, and their employees and
invitees, or the public, as such areas currently exist and as they may be changed from time to
time.



DECORATION: Tenant Alterations which do not require a building permit and which do not affect the
facade or roof of the Building, or involve any of the structural elements of the Building, or
involve any of the Building’s systems, including its electrical, mechanical, plumbing, security,
heating, ventilating, air-conditioning, communication, and fire and life safety systems.



2









 








DEFAULT RATE: Two (2) percentage points above the rate then most recently announced by Bank of
America N.T.& S.A. at its San Francisco main office as its corporate base lending rate, from time
to time announced, but in no event higher than the maximum rate permitted by Law.



DELIVERY DATE: The date for Landlord’s delivery to Tenant of possession of the Premises, if
different from the Commencement Date, as provided in Rider 2.



ENVIRONMENTAL LAWS: All Laws governing the use, storage, disposal or generation of any Hazardous
Material or pertaining to environmental conditions on, under or about the Premises or any part of
the Project, including the Comprehensive Environmental Response Compensation and Liability Act of
1980, as amended (42 U.S.C. Section 9601 et seq.), and the Resource Conservation
and Recovery Act of 1976, as amended (42 U.S.C. Section 6901 et seq.).



EXPIRATION DATE: The date specified in Section 1.01(7) unless changed by operation of Article Two.



FORCE MAJEURE: Any accident, casualty, act of God, war or civil commotion, strike or labor
troubles, or any cause whatsoever beyond the reasonable control of Landlord, including water
shortages, energy shortages or governmental preemption in connection with an act of God, a national
emergency, or by reason of Law, or by reason of the conditions of supply and demand which have been
or are affected by act of God, war or other emergency.



HAZARDOUS MATERIAL: Such substances, material and wastes which are or become regulated under any
Environmental Law; or which are classified as hazardous or toxic or medical waste or biohazardous
waste under any Environmental Law; and explosives, firearms and ammunition, flammable material,
radioactive material, asbestos, polychlorinated biphenyls and petroleum and its byproducts.



INDEMNITEES: Collectively, Landlord, any Mortgagee or ground lessor of the Property, the property
manager and the leasing manager for the Property and their respective directors, officers, agents
and employees.



LAND: The parcel(s) of real estate on which the Building and Project are located.



LANDLORD WORK: The construction or installation of improvements to be furnished by Landlord, if
any, specifically described in Rider 2 attached hereto.



LAWS OR LAW: All laws, ordinances, rules, regulations, other requirements, orders, rulings or
decisions adopted or made by any governmental body, agency, department or judicial authority having
jurisdiction over the Property, the Premises or Tenant’s activities at the Premises and any
covenants, conditions or restrictions of record which affect the Property.



LEASE: This instrument and all exhibits and riders attached hereto, as may be amended from time to
time.



LEASE YEAR: The twelve month period beginning on the first day of the first month following the
Commencement Date (unless the Commencement Date is the first day of a calendar month in which case
beginning on the Commencement Date), and each subsequent twelve month, or shorter, period until the
Expiration Date.



MONTHLY BASE RENT: The monthly rent specified in Section 1.01(8).



MORTGAGEE: Any holder of a mortgage, deed of trust or other security instrument encumbering the
Property.



NATIONAL HOLIDAYS: New Year’s Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day and
Christmas Day and other holidays recognized by the Landlord and the janitorial and other unions
servicing the Building in accordance with their contracts.



OPERATING EXPENSES: All Taxes, costs, expenses and disbursements of every kind and nature which
Landlord shall pay or become obligated to pay in connection with the ownership, management,
operation, maintenance, replacement and repair of the Property (including the amortized portion of
any capital expenditure or improvement, together with interest thereon, expenses of changing
utility service providers, and any dues, assessments and other expenses pursuant to any covenants,
conditions and restrictions, or any reciprocal easements, or any owner’s association now or
hereafter affecting the Project). Operating Expenses shall be allocated among the categories of
Project Operating Expenses, Building Operating Expenses or Phase Operating Expenses as provided in
Article Four. If any Operating Expense, though paid in one year, relates to more than one calendar
year, at the option of Landlord such expense may be proportionately allocated among such related
calendar years. Operating Expenses shall include the following, by way of illustration only and
not limitation: (1) all Taxes; (2) all insurance premiums and other costs (including deductibles
other than earthquake insurance deductibles), including the cost of rental insurance; (3) all
license, permit and inspection fees; (4) all costs of utilities, fuels and related services,
including water, sewer, light, telephone, power and steam connection, service and related charges;
(5) all costs to repair, maintain and operate heating, ventilating and air conditioning systems,
including preventive maintenance; (6) all janitorial, landscaping and security services; (7) all
wages, salaries, payroll taxes, fringe benefits and other labor costs, including the cost of
workers’ compensation and disability insurance; (8) all costs of operation, maintenance and repair
of all parking facilities and other common areas; (9) all supplies, materials, equipment and tools;
(10) dues, assessments and other expenses pursuant to any covenants,



3









 








conditions and restrictions, or any reciprocal easements, or any owner’s association now or
hereafter affecting the Project; (11) modifications to the Building or the Project occasioned by
Laws now or hereafter in effect; (12) the total charges of any independent contractors employed in
the care, operation, maintenance, repair, leasing and cleaning of the Project, including
landscaping, roof maintenance, and repair, maintenance and monitoring of life-safety systems,
plumbing systems, electrical wiring and Project signage; (13) the cost of accounting services
necessary to compute the rents and charges payable by tenants at the Project; (14) exterior window
and exterior wall cleaning and painting; (15) managerial and administrative expenses; (16) all
costs in connection with the exercise facility at the Project; (17) all costs and expenses related
to Landlord’s retention of consultants in connection with the routine review, inspection, testing,
monitoring, analysis and control of Hazardous Material, and retention of consultants in connection
with the clean-up of Hazardous Material (to the extent not recoverable from a particular tenant of
the Project), and all costs and expenses related to the implementation of recommendations made by
such consultants concerning the use, generation, storage, manufacture, production, storage,
release, discharge, disposal or clean-up of Hazardous Material on, under or about the Premises or
the Project (to the extent not recoverable from a particular tenant of the Project); (18) all
capital improvements made for the purpose of reducing or controlling other Operating Expenses, and
all other capital expenditures, but only as amortized over such reasonable period as Landlord shall
determine, together with interest thereon; (19) all property management costs and fees, including
all costs in connection with the Project property management office; and (20) all fees or other
charges incurred in conjunction with voluntary or involuntary membership in any energy
conservation, air quality, environmental, traffic management or similar organizations. Operating
Expenses shall not include: (a) costs of alterations of space to be occupied by new or existing
tenants of the Project (including any repair or work to prepare vacant space for re-leasing); (b)
depreciation charges; (c) interest and principal payments on loans (except for loans for capital
expenditures or improvements which Landlord is allowed to include in Operating Expenses as provided
above); (d) ground rental payments; (e) real estate brokerage and leasing commissions; (f)
advertising and marketing expenses; (g) costs of Landlord reimbursed by insurance proceeds; (h)
expenses incurred in negotiating leases of other tenants in the Project or enforcing lease
obligations of other tenants in the Project; (i) Landlord’s or Landlord’s property manager’s
corporate general overhead or corporate general administrative expenses; (j) costs of capital
improvements or modifications which were required to be made prior to the date of this Lease in
order to comply with applicable Laws, as in effect, interpreted and applied prior to the date of
this Lease; (k) costs described in Item (17) of this paragraph to the extent of Hazardous Materials
contamination established to exist on the Project prior to the Commencement Date of this Lease or
established to be caused by migration from outside the Project; and (l) interest, late charges,
fines or penalties resulting from late payment by Landlord due to Landlord’s active negligence
(unless Landlord in good faith disputes a charge and subsequently loses or settles such dispute) or
willful misconduct.



PHASE: Phase means any individual Phase of the Project, as more particularly described in the
definition of Project.



PHASE OPERATING EXPENSES: Those Operating Expenses described in Section 4.01.



PREMISES: The space located in the Building at the Suite Number listed in Section 1.01(15) and
depicted on Exhibit A attached hereto.



PROJECT or PROPERTY: As of the date hereof, the Project is known as Seaport Centre and consists of
those buildings (including the Building) whose general location is shown on the Site Plan of the
Project attached as Exhibit C, located in Redwood City, California, associated vehicular
and parking areas, landscaping and improvements, together with the Land, any associated interests
in real property, and the personal property, fixtures, machinery, equipment, systems and apparatus
located in or used in conjunction with any of the foregoing. The Project may also be referred to
as the Property. As of the date hereof, the Project is divided into Phase I and Phase II, which
are generally designated on Exhibit C, each of which may individually be referred to as a
Phase. Landlord reserves the right from time to time to add or remove buildings, areas and
improvements to or from a Phase or the Project, or to add or remove a Phase to or from the Project.
In the event of any such addition or removal which affects Rentable Area of the Project or a
Phase, Landlord shall make a corresponding recalculation and adjustment of any affected Rentable
Area and Tenant’s Share.



PROJECT OPERATING EXPENSES: Those Operating Expenses described in Section 4.01.



REAL PROPERTY: The Property excluding any personal property.



RENT: Collectively, Monthly Base Rent, Rent Adjustments and Rent Adjustment Deposits, and all
other charges, payments, late fees or other amounts required to be paid by Tenant under this Lease.



RENT ADJUSTMENT: Any amounts owed by Tenant for payment of Operating Expenses. The Rent
Adjustments shall be determined and paid as provided in Article Four.



RENT ADJUSTMENT DEPOSIT: An amount equal to Landlord’s estimate of the Rent Adjustment
attributable to each month of the applicable Adjustment Year. On or before the Commencement Date
and the beginning of each subsequent Adjustment Year or with Landlord’s Statement (defined in
Article Four), Landlord may estimate and notify Tenant in writing of its estimate of Operating
Expenses, including Project Operating Expenses, Building Operating Expenses and Phase Operating
Expenses, and Tenant’s Share of each, for the applicable Adjustment Year. The Rent Adjustment
Deposit applicable for the calendar year in which the Commencement Date occurs shall be the amount,
if any, specified in Section 1.01(9). Nothing contained herein shall be construed to limit the
right of Landlord from time to time during any calendar year to



4









 








revise its estimates of Operating Expenses and to notify Tenant in writing thereof and of revision
by prospective adjustments in Tenant’s Rent Adjustment Deposit payable over the remainder of such
year. The last estimate by Landlord shall remain in effect as the applicable Rent Adjustment
Deposit unless and until Landlord notifies Tenant in writing of a change.



RENTABLE AREA OF THE BUILDING: The amount of square footage set forth in Section 1.01(11)



RENTABLE AREA OF THE PHASE: The amount of square footage set forth in Section 1.01(12)



RENTABLE AREA OF THE PREMISES: The amount of square footage set forth in Section 1.01(10).



RENTABLE AREA OF THE PROJECT: The amount of square footage set forth in Section 1.01(13), which
represents the sum of the rentable area of all space intended for occupancy in the Project.



SECURITY DEPOSIT: The funds specified in Section 1.01(14), if any, deposited by Tenant with
Landlord as security for Tenant’s performance of its obligations under this Lease.



SUBSTANTIALLY COMPLETE: The completion of the Landlord Work or Tenant Work, as the case may be,
except for minor insubstantial details of construction, decoration or mechanical adjustments which
remain to be done.



TAXES: All federal, state and local governmental taxes, assessments (including assessment bonds)
and charges of every kind or nature, whether general, special, ordinary or extraordinary, which
Landlord shall pay or become obligated to pay because of or in connection with the ownership,
leasing, management, control or operation of the Property or any of its components (including any
personal property used in connection therewith), which may also include any rental or similar taxes
levied in lieu of or in addition to general real and/or personal property taxes. For purposes
hereof, Taxes for any year shall be Taxes which are assessed for any period of such year, whether
or not such Taxes are billed and payable in a subsequent calendar year. There shall be included in
Taxes for any year the amount of all fees, costs and expenses (including reasonable attorneys’
fees) paid by Landlord during such year in seeking or obtaining any refund or reduction of Taxes.
Taxes for any year shall be reduced by the net amount of any tax refund received by Landlord
attributable to such year. If a special assessment payable in installments is levied against any
part of the Property, Taxes for any year shall include only the installment of such assessment and
any interest payable or paid during such year. Taxes shall not include any federal or state
inheritance, general income, gift or estate taxes, except that if a change occurs in the method of
taxation resulting in whole or in part in the substitution of any such taxes, or any other
assessment, for any Taxes as above defined, such substituted taxes or assessments shall be included
in the Taxes.



TENANT ADDITIONS: Collectively, Landlord Work, Tenant Work and Tenant Alterations.



TENANT ALTERATIONS: Any alterations, improvements, additions, installations or construction in or
to the Premises or any Real Property systems serving the Premises done or caused to be done by
Tenant after the date hereof, whether prior to or after the Commencement Date (including Tenant
Work, but excluding Landlord Work).



TENANT DELAY: Any event or occurrence which delays the Substantial Completion of the Landlord Work
which is caused by or is described as follows:




(i) special work, changes, alterations or additions requested or made by Tenant in the
design or finish in any part of the Premises after approval of the plans and specifications
(as described in the Rider 2);




(ii) Tenant’s delay in submitting plans, supplying information, approving plans,
specifications or estimates, giving authorizations or otherwise;




(iii) failure to approve and pay for such work as Landlord undertakes to complete at
Tenant’s expense;




(iv) the performance or completion by Tenant or any person engaged by Tenant of any work in
or about the Premises; or




(v) failure to perform or comply with any obligation or condition binding upon Tenant
pursuant to Rider 2, including the failure to approve and pay for such Landlord Work or
other items if and to the extent Rider 2 provides they are to be approved or paid by Tenant.



TENANT WORK: All work installed or furnished to the Premises by Tenant in connection with Tenant’s
initial occupancy pursuant to Rider 2 and the Workletter.



TENANT’S BUILDING SHARE: The share as specified in Section 1.01(16) and Section 4.01.



TENANT’S PHASE: The Phase in which the Premises is located, as indicated in Section 1.01(1).



TENANT’S PHASE SHARE: The share as specified in Section 1.01(16) and Section 4.01.



TENANT’S PROJECT SHARE: The share as specified in Section 1.01(16) and Section 4.01.



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TENANT’S SHARE: Shall mean collectively, Tenant’s respective shares of the respective categories
of Operating Expenses, as provided in Section 1.01(16) and Section 4.01.



TERM: The term of this Lease commencing on the Commencement Date and expiring on the Expiration
Date.



TERMINATION DATE: The Expiration Date or such earlier date as this Lease terminates or Tenant’s
right to possession of the Premises terminates.



WORKLETTER: The Agreement regarding the completion of Tenant Work and Landlord Work, if any, set
forth in Rider 2 and Exhibit B hereto.



ARTICLE TWO

PREMISES, TERM, FAILURE TO GIVE POSSESSION, COMMON AREAS AND PARKING




2.01 LEASE OF PREMISES




Landlord hereby leases to Tenant and Tenant hereby leases from Landlord the Premises for the Term
and upon the terms, covenants and conditions provided in this Lease.



2.02 TERM (See Rider 2)



2.03 FAILURE TO GIVE POSSESSION (See Rider 2)



2.04 AREA OF PREMISES



Landlord and Tenant agree that for all purposes of this Lease the Rentable Area of the Premises,
the Rentable Area of the Building, the Rentable Area of the Phase and the Rentable Area of the
Project as set forth in Article One are controlling, and are not subject to revision after the date
of this Lease, except as otherwise provided herein.



2.05 CONDITION OF PREMISES (See Rider 2)



2.06 COMMON AREAS & PARKING



     (a) Right to Use Common Areas. Tenant shall have the non-exclusive right, in common
with others, to the use of any common entrances, ramps, drives and similar access and serviceways
and other Common Areas in the Project. The rights of Tenant hereunder in and to the Common Areas
shall at all times be subject to the rights of Landlord and other tenants and owners in the Project
who use the same in common with Tenant, and it shall be the duty of Tenant to keep all the Common
Areas free and clear of any obstructions created or permitted by Tenant or resulting from Tenant’s
operations. Tenant shall not use the Common Areas or common facilities of the Building or the
Project, including the Building’s electrical room, parking lot or trash enclosures, for storage
purposes. Nothing herein shall affect the right of Landlord at any time to remove any persons not
authorized to use the Common Areas or common facilities from such areas or facilities or to prevent
their use by unauthorized persons.



     (b) Changes in Common Areas. Landlord reserves the right, at any time and from time
to time to (i) make alterations in or additions to the Common Areas or common facilities of the
Project, including constructing new buildings or changing the location, size, shape or number of
the driveways, entrances, parking spaces, parking areas, loading and unloading areas, landscape
areas and walkways, (ii) designate property to be included in or eliminate property from the Common
Areas or common facilities of the Project, (iii) close temporarily any of the Common Areas or
common facilities of the Project for maintenance purposes, and (4) use the Common Areas and common
facilities of the Project while engaged in making alterations in or additions and repairs to the
Project; provided, however, that reasonable access to the Premises and parking at or near the
Project remains available.



     (c) Parking. During the Term, Tenant shall have the right to use the number of
Parking Spaces specified in Section 1.01(18) for parking on an unassigned basis on that portion of
the Project designated by Landlord from time to time for parking. Tenant acknowledges and agrees
that the parking spaces in the Project’s parking facility may include a mixture of spaces for
compact vehicles as well as full-size passenger automobiles, and that Tenant shall not use parking
spaces for vehicles larger than the striped size of the parking spaces. Tenant shall not park any
vehicles at the Project overnight. Tenant shall comply with any and all parking rules and
regulations if and as from time to time established by Landlord. Tenant shall not allow any
vehicles using Tenant’s parking privileges to be parked, loaded or unloaded except in accordance
with this Section, including in the areas and in the manner designated by Landlord for such
activities. If any vehicle is using the parking or loading areas contrary to any provision of this
Section, Landlord shall have the right, in addition to all other rights and remedies of Landlord
under this Lease, to remove or tow away the vehicle without prior notice to Tenant, and the cost
thereof shall be paid to Landlord within ten (10) days after notice from Landlord to Tenant.



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ARTICLE THREE

RENT




Tenant agrees to pay to Landlord at the first office specified in Section 1.01(2), or to such other
persons, or at such other places designated by Landlord, without any prior demand therefor in
immediately available funds and without any deduction or offset whatsoever, Rent, including Monthly
Base Rent and Rent Adjustments in accordance with Article Four, during the Term. Monthly Base Rent
shall be paid monthly in advance on the first day of each month of the Term, except that the first
installment of Monthly Base Rent shall be paid by Tenant to Landlord concurrently with execution of
this Lease. Monthly Base Rent shall be prorated for partial months within the Term. Unpaid Rent
shall bear interest at the Default Rate from the date due until paid. Tenant’s covenant to pay
Rent shall be independent of every other covenant in this Lease.



ARTICLE FOUR

OPERATING EXPENSES, RENT ADJUSTMENTS AND PAYMENTS




4.01 TENANT’S SHARE OF OPERATING EXPENSES




Tenant shall pay Tenant’s Share of Operating Expenses in the respective shares of the respective
categories of Operating Expenses as set forth below.




     (a) Tenant’s Project Share of Project Operating Expenses, which is the percentage
obtained by dividing the rentable square footage of the Premises for the building(s) in
which the Premises is located by the rentable square footage of the Project and as of the
date hereof equals the percentage set forth in Section 1.01(16);




     (b) Tenant’s Building Share of Building Operating Expenses, which is the percentage
obtained by dividing the rentable square footage of the Premises respectively for each
building in which the Premises is located by the total rentable square footage of such
building and as of the date hereof equals the percentage set forth in Section 1.01(16);




     (c) Tenant’s Phase Share of Phase Operating Expenses, which is the percentage obtained
by dividing the aggregate rentable square footage of the Premises located in Tenant’s Phase
by the total rentable square footage of Tenant’s Phase and as of the date hereof equals the
percentage set forth in Section 1.01(16);




     (d) Project Operating Expenses shall mean all Operating Expenses that are not included
as Phase Operating Expenses (defined below) and that are not either Building Operating
Expenses or operating expenses directly and separately identifiable to the operation,
maintenance or repair of any other building located in the Project, but Project Operating
Expenses includes operating expenses allocable to any areas of the Building or any other
building during such time as such areas are made available by Landlord for the general
common use or benefit of all tenants of the Project, and their employees and invitees, or
the public, as such areas currently exist and as they may be changed from time to time;




     (e) Building Operating Expenses shall mean Operating Expenses that are directly and
separately identifiable to each building in which the Premises or part thereof is located;




     (f) Phase Operating Expenses shall mean Operating Expenses that Landlord may allocate
to a Phase as directly and separately identifiable to all buildings located in the Phase
(including but not limited to the Building) and may include Project Operating Expenses that
are separately identifiable to a Phase;




     (g) Landlord shall have the right to allocate a particular item or portion of
Operating Expenses as any one of Project Operating Expenses, Building Operating Expenses or
Phase Operating Expenses; however, in no event shall any portion of Building Operating
Expenses, Project Operating Expenses or Phase Operating Expenses be assessed or counted
against Tenant more than once; and.




     (h) Notwithstanding anything to the contrary contained in this Section 4.01, as to
each specific category of Operating Expense which one or more tenants of the Building either
pays directly to third parties or specifically reimburses to Landlord (for example,
separately contracted janitorial services or property taxes directly reimbursed to
Landlord), then, on a category by category basis, the amount of Operating Expenses for the
affected period shall be adjusted as follows: (1) all such tenant payments with respect to
such category of expense and all of Landlord’s costs reimbursed thereby shall be excluded
from Operating Expenses and Tenant’s Building Share, Tenant’s Phase Share or Tenant’s
Project Share, as the case may be, for such category of Operating Expense shall be adjusted
by excluding the square footage of all such tenants, and (2) if Tenant pays or directly
reimburses Landlord for such category of Operating Expense, such category of Operating
Expense shall be excluded from the determination of Operating Expenses for the purposes of
this Lease.



4.02 RENT ADJUSTMENTS




Tenant shall pay to Landlord Rent Adjustments with respect to each Adjustment Year as follows:



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     (a) The Rent Adjustment Deposit shall be paid monthly during the Term with the payment
of Monthly Base Rent, except the first installment which shall be paid by Tenant to Landlord
concurrently with execution of this Lease. The Rent Adjustment Deposit represents, on a
monthly basis, Tenant’s Share of Landlord’s estimate of Operating Expenses, as described in
Section 4.01, for the applicable Adjustment Year (or portion thereof); and




     (b) Any Rent Adjustments due in excess of the Rent Adjustment Deposits in accordance
with Section 4.03.



4.03 STATEMENT OF LANDLORD




Within one hundred twenty (120) days after the end of each calendar year or as soon thereafter as
reasonably possible, Landlord will furnish Tenant a statement (“Landlord’s Statement”) showing the
following:




     (a) Operating Expenses for the last Adjustment Year showing in reasonable detail the
actual Operating Expenses categorized among Project Operating Expenses, Building Operating
Expenses and Phase Operating Expenses for such period and Tenant’s Share of each as
described in Section 4.01 above;




     (b) The amount of Rent Adjustments due Landlord for the last Adjustment Year, less
credit for Rent Adjustment Deposits paid, if any; and




     (c) Any change in the Rent Adjustment Deposit due monthly in the current Adjustment
Year, including the amount or revised amount due for months preceding any such change
pursuant to Landlord’s Statement.



Tenant shall pay to Landlord within ten (10) days after receipt of such statement any amounts for
Rent Adjustments then due in accordance with Landlord’s Statement. Any amounts due from Landlord
to Tenant pursuant to this Section shall be credited to the Rent Adjustment Deposit next coming
due, or refunded to Tenant if the Term has already expired provided Tenant is not in default
hereunder. No interest or penalties shall accrue on any amounts which Landlord is obligated to
credit or refund to Tenant by reason of this Section 4.03. Landlord’s failure to deliver
Landlord’s Statement or to compute the amount of the Rent Adjustments shall not constitute a waiver
by Landlord of its right to deliver such items nor constitute a waiver or release of Tenant’s
obligations to pay such amounts. The Rent Adjustment Deposit shall be credited against Rent
Adjustments due for the applicable Adjustment Year. During the last complete calendar year or
during any partial calendar year in which the Lease terminates, Landlord may include in the Rent
Adjustment Deposit its estimate of Rent Adjustments which may not be finally determined until after
the termination of this Lease. Tenant’s obligation to pay Rent Adjustments survives the expiration
or termination of the Lease. Notwithstanding the foregoing, in no event shall the sum of Monthly
Base Rent and the Rent Adjustments be less than the Monthly Base Rent payable.



4.04 BOOKS AND RECORDS



Landlord shall maintain books and records showing Operating Expenses and Taxes in accordance with
sound accounting and management practices, consistently applied. The Tenant or its representative
(which representative shall be a certified public accountant licensed to do business in the state
in which the Property is located and whose primary business is certified public accounting) shall
have the right, for a period of thirty (30) days following the date upon which Landlord’s Statement
is delivered to Tenant, to examine the Landlord’s books and records with respect to the items in
the foregoing statement of Operating Expenses and Taxes during normal business hours, upon written
notice, delivered at least three (3) business days in advance. If Tenant does not object in writing
to Landlord’s Statement within sixty (60) days of Tenant’s receipt thereof, specifying the nature
of the item in dispute and the reasons therefor, then Landlord’s Statement shall be considered
final and accepted by Tenant. Any amount due to the Landlord as shown on Landlord’s Statement,
whether or not disputed by Tenant as provided herein shall be paid by Tenant when due as provided
above, without prejudice to any such written exception.



4.05 TENANT OR LEASE SPECIFIC TAXES



In addition to Monthly Base Rent, Rent Adjustments, Rent Adjustment Deposits and other charges to
be paid by Tenant, Tenant shall pay to Landlord, upon demand, any and all taxes payable by Landlord
(other than federal or state inheritance, general income, gift or estate taxes) whether or not now
customary or within the contemplation of the parties hereto: (a) upon, allocable to, or measured
by the Rent payable hereunder, including any gross receipts tax or excise tax levied by any
governmental or taxing body with respect to the receipt of such rent; or (b) upon or with respect
to the possession, leasing, operation, management, maintenance, alteration, repair, use or
occupancy by Tenant of the Premises or any portion thereof; or (c) upon the measured value of
Tenant’s personal property or trade fixtures located in the Premises or in any storeroom or any
other place in the Premises or the Property, or the areas used in connection with the operation of
the Property, it being the intention of Landlord and Tenant that, to the extent possible, Tenant
shall cause such taxes on personal property or trade fixtures to be billed to and paid directly by
Tenant; (d) resulting from Landlord Work, Tenant Work or Tenant Alterations to the Premises,
whether title thereto is in Landlord or Tenant; or (e) upon this transaction. Taxes paid by Tenant
pursuant to this Section 4.05 shall not be included in any computation of Taxes as part of
Operating Expenses.



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ARTICLE FIVE

SECURITY DEPOSIT




     (a) Tenant shall pay Landlord, concurrently with execution of this Lease, in immediately
available funds the amount of the Security Deposit specified in Section 1.01(14) as security
(“Security”) for the full and faithful performance by Tenant of each and every term, provision,
covenant, and condition of this Lease. If Tenant fails timely to perform any of the terms,
provisions, covenants and conditions of this Lease or any other document executed by Tenant in
connection with this Lease, including, but not limited to, the payment of any Rent or the repair of
damage to the Premises caused by Tenant (excluding normal wear and tear) then Landlord may use,
apply, or retain the whole or any part of the Security for the payment of any such Rent not paid
when due, for the cost of repairing such damage, for the cost of cleaning the Premises, for the
payment of any other sum which Landlord may expend or may be required to expend by reason of
Tenant’s failure to perform, and otherwise for compensation of Landlord for any other loss or
damage to Landlord occasioned by Tenant’s failure to perform, including, but not limited to, any
loss of future Rent and any damage or deficiency in the releting of the Premises (whether such
loss, damages or deficiency accrue before or after summary proceedings or other reentry by
Landlord) and the amount of the unpaid past Rent, future Rent loss, and all other losses, costs and
damages, that Landlord would be entitled to recover if Landlord were to pursue recovery under
Section 11.02(b) or (c) of this Lease. If Landlord so uses, applies or retains all or part of the
Security, Tenant shall within five (5) business days after demand pay or deliver to Landlord in
immediately available funds the sum necessary to replace the amount used, applied or retained,
except as specified in (d) below. If Tenant shall fully and faithfully comply with all of Tenant’s
terms, provisions, covenants and conditions of this Lease, the Security (except any amount retained
for application by Landlord as provided herein) shall be returned or paid over to Tenant no later
than ninety (90) days after the latest of: (i) the Termination Date; (ii) the removal of Tenant
from the Premises; (iii) the surrender of the Premises by Tenant to Landlord in accordance with
this Lease; or (iv) the date Rent Adjustments owed pursuant to this Lease have been computed by
Landlord and paid by Tenant. Provided, however, in no event shall any such return be construed as
an admission by Landlord that Tenant has performed all of its obligations hereunder.



     (b) The Security shall not be deemed an advance rent deposit or an advance payment of any
kind, or a measure of Landlord’s damages with respect to Tenant’s failure to perform, nor shall any
action or inaction of Landlord with respect to it be a waiver of, or bar or defense to, enforcement
of any right or remedy of Landlord. Landlord shall not be required to keep the Security separate
from its general funds and shall not have any fiduciary or other duties concerning the Security
except as set forth in this Section. Tenant shall not be entitled to any interest on the Security.
In the event of any sale, lease or transfer of Landlord’s interest in the Building, Landlord shall
have the right to transfer the Security, or balance thereof, to the vendee, transferee or lessee
and any such transfer shall release Landlord from all liability for the return of the Security.
Tenant thereafter shall look solely to such vendee, transferee or lessee for the return or payment
of the Security. Tenant shall not assign or encumber or attempt to assign or encumber the Security
or any interest in it and Landlord shall not be bound by any such assignment, encumbrance,
attempted assignment or attempted encumbrance, and regardless of one or more assignments of this
Lease, Landlord may return the Security to the original Tenant without liability to any assignee.
Tenant hereby waives any and all rights of Tenant under the provisions of Section 1950.7 of the
California Civil Code or other Law, now or hereafter enacted, regarding security deposits.



     (c) If Tenant fails timely to perform any obligation under this Article Five, such breach
shall constitute a Default by Tenant under this Lease without any right to or requirement of any
further notice or cure period under any other Article of this Lease, except such notice and cure
period expressly provided under this Article Five.



ARTICLE SIX

UTILITIES & SERVICES




6.01 LANDLORD’S GENERAL SERVICES




Landlord shall provide maintenance and services as provided in Article Eight.



6.02 TENANT TO OBTAIN & PAY DIRECTLY




     (a) Tenant shall be responsible for and shall pay promptly all charges for gas, electricity,
sewer, heat, light, power, telephone, refuse pickup (to be performed on a regularly scheduled basis
so that accumulated refuse does not exceed the capacity of Tenant’s refuse bins), janitorial
service and all other utilities, materials and services furnished directly to or used by Tenant in,
on or about the Premises, together with all taxes thereon. Tenant shall contract directly with the
providing companies for such utilities and services.



     (b) Notwithstanding any provision of the Lease to the contrary, without, in each instance, the
prior written consent of Landlord, as more particularly provided in Article Nine, Tenant shall not:
(i) make any alterations or additions to the electric or gas equipment or systems or other
Building systems. Tenant’s use of electric current shall at no time exceed the capacity of the
wiring, feeders and risers providing electric current to the Premises or the Building. The consent
of Landlord to the installation of electric equipment shall not relieve Tenant from the obligation
to limit usage of electricity to no more than such capacity.



9









 





6.03 TELEPHONE SERVICES



All telegraph, telephone, and communication connections which Tenant may desire outside the
Premises shall be subject to Landlord’s prior written approval, in Landlord’s sole discretion, and
the location of all wires and the work in connection therewith shall be performed by contractors
approved by Landlord and shall be subject to the direction of Landlord, except that such approval
is not required as to Tenant’s cabling from the Premises in a route designated by Landlord to any
telephone cabinet or panel provided for Tenant’s connection to the telephone cable serving the
Building, so long as Tenant’s equipment does not require connections different than or additional
to those to the telephone cabinet or panel provided. As to any such connections or work outside
the Premises requiring Landlord’s approval, Landlord reserves the right to designate and control
the entity or entities providing telephone or other communication cable installation, removal,
repair and maintenance outside the Premises and to restrict and control access to telephone
cabinets or panels. In the event Landlord designates a particular vendor or vendors to provide
such cable installation, removal, repair and maintenance for the Building, Tenant agrees to abide
by and participate in such program. Tenant shall be responsible for and shall pay all costs
incurred in connection with the installation of telephone cables and communication wiring in the
Premises, including any hook-up, access and maintenance fees related to the installation of such
wires and cables in the Premises and the commencement of service therein, and the maintenance
thereafter of such wire and cables; and there shall be included in Operating Expenses for the
Building all installation, removal, hook-up or maintenance costs incurred by Landlord in connection
with telephone cables and communication wiring serving the Building which are not allocable to any
individual users of such service but are allocable to the Building generally. If Tenant fails to
maintain all telephone cables and communication wiring in the Premises and such failure affects or
interferes with the operation or maintenance of any other telephone cables or communication wiring
serving the Building, Landlord or any vendor hired by Landlord may enter into and upon the Premises
forthwith and perform such repairs, restorations or alterations as Landlord deems necessary in
order to eliminate any such interference (and Landlord may recover from Tenant all of Landlord’s
costs in connection therewith). No later than the Termination Date, Tenant agrees to remove all
telephone cables and communication wiring installed by Tenant for and during Tenant’s occupancy,
which Landlord shall request Tenant to remove. Tenant agrees that neither Landlord nor any of its
agents or employees shall be liable to Tenant, or any of Tenant’s employees, agents, customers or
invitees or anyone claiming through, by or under Tenant, for any damages, injuries, losses,
expenses, claims or causes of action because of any interruption, diminution, delay or
discontinuance at any time for any reason in the furnishing of any telephone or other communication
service to the Premises and the Building.



6.04 FAILURE OR INTERRUPTION OF UTILITY OR SERVICE



To the extent that any equipment or machinery furnished or maintained by Landlord outside the
Premises is used in the delivery of utilities directly obtained by Tenant pursuant to Section 6.02
and breaks down or ceases to function properly, Landlord shall use reasonable diligence to repair
same promptly. In the event of any failure, stoppage or interruption of, or change in, any
utilities or services supplied by Landlord which are not directly obtained by Tenant, Landlord
shall use reasonable diligence to have service promptly resumed. In either event covered by the
preceding two sentences, if the cause of any such failure, stoppage or interruption of, or change
in, utilities or services is within the control of a public utility, other public or quasi-public
entity, or utility provider outside Landlord’s control, notification to such utility or entity of
such failure, stoppage or interruption and request to remedy the same shall constitute “reasonable
diligence” by Landlord to have service promptly resumed. Notwithstanding any other provision of
this Section to the contrary, in the event of any failure, stoppage or interruption of, or change
in, any utility or other service furnished to the Premises or the Project resulting from any cause,
including changes in service provider or Landlord’s compliance with any voluntary or similar
governmental or business guidelines now or hereafter published or any requirements now or hereafter
established by any governmental agency, board or bureau having jurisdiction over the operation of
the Property: (a) Landlord shall not be liable for, and Tenant shall not be entitled to, any
abatement or reduction of Rent; (b) no such failure, stoppage, or interruption of any such utility
or service shall constitute an eviction of Tenant or relieve Tenant of the obligation to perform
any covenant or agreement of this Lease to be performed by Tenant; (c) Landlord shall not be in
breach of this Lease nor be liable to Tenant for damages or otherwise.



6.05 CHOICE OF SERVICE PROVIDER



Tenant acknowledges that Landlord may, at Landlord’s sole option, to the extent permitted by
applicable law, elect to change, from time to time, the company or companies which provide services
(including electrical service, gas service, water, telephone and technical services) to the
Property, the Premises and/or its occupants. Notwithstanding anything to the contrary set forth in
this Lease, Tenant acknowledges that Landlord has not and does not make any representations or
warranties concerning the identity or identities of the company or companies which provide services
to the Property and the Premises or its occupants and Tenant acknowledges that the choice of
service providers and matters concerning the engagement and termination thereof shall be solely
that of Landlord. The foregoing provision is not intended to modify, amend, change or otherwise
derogate any provision of this Lease concerning the nature or type of service to be provided or any
specific information concerning the amount thereof to be provided. Tenant agrees to cooperate with
Landlord and each of its service providers in connection with any change in service or provider.



6.06 SIGNAGE



Tenant shall not install any signage within the Project, the Building or the Premises without
obtaining the prior written approval of Landlord, and Tenant shall be responsible for procurement,
installation, maintenance and



10









 








removal of any such signage installed by Tenant, and all costs in
connection therewith. Any such signage shall comply with Landlord’s current Project signage
criteria and all Laws.



ARTICLE SEVEN

POSSESSION, USE AND CONDITION OF PREMISES




7.01 POSSESSION AND USE OF PREMISES




     (a) Tenant shall occupy and use the Premises only for the uses specified in Section 1.01(17)
to conduct Tenant’s business. Tenant shall not occupy or use the Premises (or permit the use or
occupancy of the Premises) for any purpose or in any manner which: (1) is unlawful or in violation
of any Law or Environmental Law; (2) may be dangerous to persons or property or which may increase
the cost of, or invalidate, any policy of insurance carried on the Building or covering its
operations; (3) is contrary to or prohibited by the terms and conditions of this Lease or the rules
and regulations as provided in Article Eighteen; (4) contrary to or prohibited by the articles,
bylaws or rules of any owner’s association affecting the Project; (5) is improper, immoral, or
objectionable; (6) would obstruct or interfere with the rights of other tenants or occupants of the
Building or the Project, or injure or annoy them, or would tend to create or continue a nuisance;
or (7) would constitute any waste in or upon the Premises or Project.



     (b) Landlord and Tenant acknowledge that the Americans With Disabilities Act of 1990 (42
U.S.C. §12101 et seq.) and regulations and guidelines promulgated thereunder, as all of the same
may be amended and supplemented from time to time (collectively referred to herein as the “ADA”)
establish requirements for business operations, accessibility and barrier removal, and that such
requirements may or may not apply to the Premises, the Building and the Project depending on, among
other things: (1) whether Tenant’s business is deemed a “public accommodation” or “commercial
facility”, (2) whether such requirements are “readily achievable”, and (3) whether a given
alteration affects a “primary function area” or triggers “path of travel” requirements. The
parties hereby agree that: (a) Landlord shall be responsible for ADA Title III compliance in the
Common Areas, except as provided below, (b) Tenant shall be responsible for ADA Title III
compliance in the Premises to the extent compliance (i) is triggered by new construction of
improvements or alterations by Tenant during the Term either in the Premises or in any contiguous
space used or occupied by Tenant or (ii) is triggered by Tenant’s prior construction in connection
with Tenant’s use or occupancy either of the Premises under the Prior Sublease (defined in Rider 2
of this Lease) or of any contiguous space, (c) Landlord may perform, or require that Tenant
perform, and Tenant shall be responsible for the cost of, ADA Title III “path of travel”
requirements triggered by Tenant Additions in the Premises, and (d) Landlord may perform, or
require Tenant to perform, and Tenant shall be responsible for the cost of, ADA Title III
compliance in the Common Areas necessitated by the Building being deemed to be a “public
accommodation” instead of a “commercial facility” as a result of Tenant’s use of the Premises.
Tenant shall be solely responsible for requirements under Title I of the ADA relating to Tenant’s
employees.



     (c) Landlord and Tenant agree to cooperate and use commercially reasonable efforts to
participate in traffic management programs generally applicable to businesses located in or about
the area and Tenant shall encourage and support van and car pooling by, and staggered and flexible
working hours for, its office workers and service employees to the extent reasonably permitted by
the requirements of Tenant’s business. Neither this Section or any other provision of this Lease
is intended to or shall create any rights or benefits in any other person, firm, company,
governmental entity or the public.



     (d) Tenant agrees to cooperate with Landlord and to comply with any and all guidelines or
controls concerning energy management imposed upon Landlord by federal or state governmental
organizations or by any energy conservation association to which Landlord is a party or which is
applicable to the Building.



7.02 HAZARDOUS MATERIAL




     (a) Tenant shall not use, generate, manufacture, produce, store, handle, release, discharge,
or dispose of, on, under or about the Premises or any part of the Project, or transport to or from
the Premises or any part of the Project, any Hazardous Material, or allow its employees, agents,
contractors, licensees, invitees or any other person or entity (“Tenant Parties”) to do so except
to the extent expressly provided below. Provided that the Premises are used only for the uses

specified in Section 1.01(15) above, Tenant shall be permitted to use and store in, and transport
to and from, the Premises Hazardous Material identified on Exhibit D hereto and by this
reference incorporated herein (“Permitted Hazardous Material”) so long as: (i) each item of the
Permitted Hazardous Material is used or stored in, or transported to and from, the Premises only to
the extent necessary for Tenant’s operation of its business at the Premises; (ii) at no time shall
any Permitted Hazardous Material be in use or storage at the Premises in excess of the quantity
specified therefor in Exhibit D; (iii) Tenant shall not install any underground tanks of
any type; and (iv) the conditions and provisions set forth in this Section 7.02 are complied with.
Tenant shall comply with and shall cause all Tenant Parties to comply with all Environmental Laws
and other Laws pertaining to Tenant’s occupancy and use of the Premises and concerning the proper
use, generation, manufacture, production, storage, handling, release, discharge, removal and
disposal of any Hazardous Material introduced to the Premises, the Building or the Property by
Tenant or any of the Tenant Parties. Without limiting the generality of the foregoing:




(1) Tenant shall provide Landlord promptly with copies of: (x) all permits, licenses and
other governmental and regulatory approvals with respect to the use, generation,
manufacture, production, storage, handling, release, discharge, removal and disposal by
Tenant or Any of the Tenant Parties of Hazardous Material at the Project; and (y) each
hazardous material management plan or similar



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document (“Plan(s)”) with respect to use,
generation, manufacture, production, storage, handling, release, discharge, removal or
disposal of Hazardous Material by Tenant or any of the Tenant Parties necessary to comply
with Environmental Laws or other Laws prepared by or on behalf of Tenant or any of the
Tenant Parties (whether or not required to be submitted to a governmental agency).




(2) If Tenant is notified of any investigation or violation of any Environmental Laws or
other Laws arising from any activity of Tenant or any of the Tenant Parties at the Property,
or if Tenant knows, or has reasonable cause to believe, that a Hazardous Material has come
to be located in, on, under or about the Premises or the Project, other than as previously
consented to by Landlord, Tenant shall immediately give written notice of such fact to
Landlord, and provide Landlord with a copy of all reports, notices, claims or other
documentation which it has concerning the presence of such Hazardous Material. In such
event, Landlord may conduct at Tenant’s expense such tests and studies as Landlord deems
desirable relating to compliance by Tenant or any of the Tenant Parties with this Lease,
Environmental Laws, other Laws, or relating to the alleged presence of Hazardous Material
introduced to the Premises, the Building or the Property by Tenant or any of the Tenant
Parties. Further, in the event Landlord reasonably believes that there exists a violation
of this Lease or Environmental Law or other Laws by Tenant or any of the Tenant Parties,
Landlord may conduct such tests and studies as Landlord deems desirable relating to
compliance by Tenant or any of the Tenant Parties with this Lease, Environmental Laws, other
Laws, or relating to the alleged presence of Hazardous Material introduced to the Premises,
the Building or the Property by Tenant or any of the Tenant Parties. In the event that
Landlord’s tests and studies show that Tenant or any Tenant Parties has violated its
obligations under this Section 7.02, or that prior to or after the Commencement Date of this
Lease Tenant or any Tenant Parties have caused a release of Hazardous Material in any part
of the Project or have violated any Environmental Laws or other Laws in connection with use
or occupancy of any part of the Project, Tenant shall reimburse Landlord for its costs and
expenses in conducting such tests and studies.




(3) Neither Tenant nor any of the Tenant Parties shall cause or permit any Hazardous
Material to be released, discharged or disposed of in, on, under, or about the Premises or
the Project (including through the plumbing or sanitary sewer system) and shall promptly, at
Tenant’s expense, take all investigatory and/or remedial action reasonably recommended,
whether or not formally ordered or required, for the cleanup of any contamination of, and
for the maintenance, security and/or monitoring of the Premises, the Project or neighboring
properties, that was caused or materially contributed to by Tenant, or pertaining to or
involving any Hazardous Material brought onto the Premises or the Project by Tenant or any
of the Tenant Parties.




(4) Tenant shall, no later than the Termination Date, surrender the Premises to Landlord
free of Hazardous Material and with all remedial and/or closure plans completed (and deliver
evidence thereof to Landlord).



     (b) To the extent permitted by law, Tenant hereby indemnifies and agrees to protect, defend
and hold the Indemnitees harmless against all actions, claims, demands, liability, costs and
expenses, including attorneys’ fees and expenses for the defense thereof, arising from the use,
generation, manufacture, production, storage, handling, release, threatened release, discharge,
disposal, transportation to or from, or presence of any Hazardous Material on, under or about the
Premises or any part of the Project caused by Tenant or by any of the Tenant Parties, whether
before, during or after the Term. Tenant’s obligations under this Section 7.02 shall survive the
expiration or earlier termination of this Lease. In case of any action or proceeding brought
against the Indemnitees by reason of any such claim, upon notice from Landlord, Tenant covenants to
defend such action or proceeding by counsel chosen by Landlord, in Landlord’s sole discretion.
Landlord reserves the right to settle, compromise or dispose of any and all actions, claims and
demands related to the foregoing indemnity.



     (c) The right to use and store in, and transport to and from, the Premises the Permitted
Hazardous Material is personal to Genitope Corporation, a Delaware corporation and may not be
assigned or otherwise transferred without the prior written consent of Landlord, which consent may
be withheld in Landlord’s sole discretion. Any consent by Landlord pursuant to Article Ten to an
assignment, transfer, subletting, mortgage, pledge, hypothecation or encumbrance of this Lease, and
any interest therein or right or privilege appurtenant thereto, shall not constitute consent by
Landlord to the use or storage at, or transportation to, the Premises of any Hazardous Material
(including a Permitted Hazardous Material) by any such assignee, sublessee or transferee unless
Landlord expressly agrees otherwise in writing. Any consent by Landlord to the use or storage at,
or transportation to or from the Premises, of any Hazardous Material (including a Permitted
Hazardous Material) by an assignee, sublessee or transferee of Tenant shall not constitute a waiver
of Landlord’s right to refuse such consent as to any subsequent assignee or transferee.



     (d) Tenant acknowledges that the sewer piping at the Project is made of ABS plastic.
Accordingly, without Landlord’s prior written consent, which may be given or withheld in Landlord’s
sole discretion, only ordinary domestic sewage is permitted to be put into the drains at the
Premises. UNDER NO CIRCUMSTANCES SHALL Tenant EVER DEPOSIT ANY ESTERS OR KETONES (USUALLY FOUND IN
SOLVENTS TO CLEAN UP PETROLEUM PRODUCTS) IN THE DRAINS AT THE PREMISES. If Tenant
desires to put any substances other than ordinary domestic sewage into the drains, it shall first
submit to Landlord a complete description of each such substance, including its chemical
composition, and a sample of such substance suitable for laboratory testing. Landlord shall
promptly determine whether or not the substance can be deposited into the drains and its
determination shall be absolutely binding on Tenant. Upon demand, Tenant shall reimburse Landlord
for expenses incurred by Landlord in making such



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determination. If any substances not so approved
hereunder are deposited in the drains in Tenant’s Premises, Tenant shall be liable to Landlord for
all damages resulting therefrom, including but not limited to all costs and expenses incurred by
Landlord in repairing or replacing the piping so damaged.



     (e) Upon any violation of any of the foregoing covenants, in addition to all remedies
available to a landlord against the defaulting tenant, including but not limited to those set forth
in Article Eleven of this Lease, Tenant expressly agrees that upon any such violation Landlord may,
at its option (i) immediately terminate this Lease by giving written notice to Tenant of such
termination, or (ii) continue this Lease in effect until compliance by Tenant with its clean-up and
removal covenant (notwithstanding the expiration of the Term). No action by Landlord hereunder
shall impair the obligations of Tenant pursuant to this Section 7.02.



7.03 LANDLORD ACCESS TO PREMISES; APPROVALS




     (a) Tenant shall permit Landlord to erect, use and maintain pipes, ducts, wiring and conduits
in and through the Premises, so long as Tenant’s use, layout or design of the Premises is not
materially affected or altered. Landlord or Landlord’s agents shall have the right to enter upon
the Premises in the event of an emergency, or to inspect the Premises, to perform janitorial and
other services (if any), to conduct safety and other testing in the Premises and to make such
repairs, alterations, improvements or additions to the Premises or the Building or other parts of
the Property as Landlord may deem necessary or desirable (including all alterations, improvements
and additions in connection with a change in service provider or providers). Janitorial and
cleaning services (if any) shall be performed after normal business hours. Any entry or work by
Landlord may be during normal business hours and Landlord may use reasonable efforts to ensure that
any entry or work shall not materially interfere with Tenant’s occupancy of the Premises.



     (b) If Tenant shall not be personally present to permit an entry into the Premises when for
any reason an entry therein shall be necessary or permissible, Landlord (or Landlord’s agents),
after attempting to notify Tenant (unless Landlord believes an emergency situation exists), may
enter the Premises without rendering Landlord or its agents liable therefor, and without relieving
Tenant of any obligations under this Lease.



     (c) Landlord may enter the Premises for the purpose of conducting such inspections, tests and
studies as Landlord may deem desirable or necessary to confirm Tenant’s compliance with all Laws
and Environmental Laws or for other purposes necessary in Landlord’s reasonable judgment to ensure
the sound condition of the Property and the systems serving the Property. Landlord’s rights under
this Section 7.03 (c) are for Landlord’s own protection only, and Landlord has not, and shall not
be deemed to have assumed, any responsibility to Tenant or any other party as a result of the
exercise or non-exercise of such rights, for compliance with Laws or Environmental Laws or for the
accuracy or sufficiency of any item or the quality or suitability of any item for its intended use.



     (d) Landlord may do any of the foregoing, or undertake any of the inspection or work described
in the preceding paragraphs without such action constituting an actual or constructive eviction of
Tenant, in whole or in part, or giving rise to an abatement of Rent by reason of loss or
interruption of business of the Tenant, or otherwise.



     (e) The review, approval or consent of Landlord with respect to any item required or permitted
under this Lease is for Landlord’s own protection only, and Landlord has not, and shall not be
deemed to have assumed, any responsibility to Tenant or any other party, as a result of the
exercise or non-exercise of such rights, for compliance with Laws or Environmental Laws or for the
accuracy or sufficiency of any item or the quality or suitability of any item for its intended use.



7.04 QUIET ENJOYMENT




     Landlord covenants, in lieu of any implied covenant of quiet possession or quiet enjoyment, that so
long as Tenant is in compliance with the covenants and conditions set forth in this Lease, Tenant
shall have the right to quiet enjoyment of the Premises without hindrance or interference from
Landlord or those claiming through Landlord, and subject to the covenants and conditions set forth
in the Lease and to the rights of any Mortgagee or ground lessor.



ARTICLE EIGHT

MAINTENANCE




8.01 LANDLORD’S MAINTENANCE




Subject to Article Fourteen and Section 8.02, Landlord shall maintain the structural portions of
the Building, the roof, exterior walls and exterior doors, foundation, and underslab standard sewer
system of the Building in good, clean and safe condition, and shall use reasonable efforts, through
Landlord’s program of regularly scheduled preventive maintenance, to keep the Building’s standard
heating, ventilation and air conditioning (“HVAC”) equipment in reasonably good order and
condition. Notwithstanding the foregoing, Landlord shall
have no responsibility to repair the Building’s standard heating, ventilation and air conditioning
equipment, and all such repairs shall be performed by Tenant pursuant to the terms of Section 8.02.
Landlord shall also (a) maintain the landscaping, parking facilities and other Common Areas of the
Project, and (b) wash the outside of exterior windows at intervals determined by Landlord. Except
as provided in Article Fourteen and Article Fifteen, there shall be no abatement of rent, no
allowance to Tenant for diminution of rental value and no liability of Landlord by reason of
inconvenience, annoyance or any injury to or interference with Tenant’s



13









 








business arising from the
making of or the failure to make any repairs, alterations or improvements in or to any portion of
the Project or in or to any fixtures, appurtenances or equipment therein. Tenant waives the right
to make repairs at Landlord’s expense under any law, statute or ordinance now or hereafter in
effect.



8.02 TENANT’S MAINTENANCE



Subject to the provisions of Article Fourteen, Tenant shall, at Tenant’s sole cost and expense,
make all repairs to the Premises and fixtures therein which Landlord is not required to make
pursuant to Section 8.01, including repairs to the interior walls, ceilings and windows of the
Premises, the interior doors, Tenant’s signage, and the electrical, life-safety, plumbing and
heating, ventilation and air conditioning systems located within or serving the Premises
exclusively and shall maintain the Premises, the fixtures and utilities systems therein, and the
area immediately surrounding the Premises (including all garbage enclosures used exclusively by
Tenant), in a good, clean and safe condition. Tenant shall deliver to Landlord a copy of any
maintenance contract entered into by Tenant with respect to the Premises. Tenant shall also, at
Tenant’s expense, keep any non-standard heating, ventilating and air conditioning equipment and
other non-standard equipment in the Building in good condition and repair, using contractors
approved in advance, in writing, by Landlord. Notwithstanding Section 8.01 above, but subject to
the waivers set forth in Section 16.04, Tenant will pay for any repairs to the Building or the
Project which are caused by any negligence or carelessness, or by any willful and wrongful act, of
Tenant or its assignees, subtenants or employees, or of the respective agents of any of the
foregoing persons, or of any other persons permitted in the Building or elsewhere in the Project by
Tenant or any of them. Tenant will maintain the Premises, and will leave the Premises upon
termination of this Lease, in a safe, clean, neat and sanitary condition.



ARTICLE NINE

ALTERATIONS AND IMPROVEMENTS




9.01 TENANT ALTERATIONS




     (a) The following provisions shall apply to the completion of any Tenant Alterations:




     (1) Tenant shall not, except as provided herein, without the prior written consent of
Landlord, which consent shall not be unreasonably withheld, make or cause to be made any
Tenant Alterations in or to the Premises or any Property systems serving the Premises.
Prior to making any Tenant Alterations, Tenant shall give Landlord ten (10) days prior
written notice (or such earlier notice as would be necessary pursuant to applicable Law) to
permit Landlord sufficient time to post appropriate notices of non-responsibility. Subject
to all other requirements of this Article Nine, Tenant may undertake Decoration work without
Landlord’s prior written consent. Tenant shall furnish Landlord with the names and
addresses of all contractors and subcontractors and copies of all contracts. All Tenant
Alterations shall be completed at such time and in such manner as Landlord may from time to
time designate, and only by contractors or mechanics approved by Landlord, which approval
shall not be unreasonably withheld, provided, however, that Landlord may, in its sole
discretion, specify the engineers and contractors to perform all work relating to the
Building’s systems (including the mechanical, heating, plumbing, security, ventilating,
air-conditioning, electrical, communication and the fire and life safety systems in the
Building). The contractors, mechanics and engineers who may be used are further limited to
those whose work will not cause or threaten to cause disharmony or interference with
Landlord or other tenants in the Building and their respective agents and contractors
performing work in or about the Building. Landlord may further condition its consent upon
Tenant furnishing to Landlord and Landlord approving prior to the commencement of any work
or delivery of materials to the Premises related to the Tenant Alterations such of the
following as specified by Landlord: architectural plans and specifications, opinions from
Landlord’s engineers stating that the Tenant Alterations will not in any way adversely
affect the Building’s systems, necessary permits and licenses, certificates of insurance,
and such other documents in such form reasonably requested by Landlord. Landlord may, in
the exercise of reasonable judgment, request that Tenant provide Landlord with appropriate
evidence of Tenant’s ability to complete and pay for the completion of the Tenant
Alterations such as a performance bond or letter of credit. Upon completion of the Tenant
Alterations, Tenant shall deliver to Landlord an as-built mylar and digitized (if available)
set of plans and specifications for the Tenant Alterations.




     (2) Tenant shall pay the cost of all Tenant Alterations and the cost of decorating the
Premises and any work to the Property occasioned thereby. In connection with completion of
any Tenant Alterations, Tenant shall pay Landlord a construction fee and all elevator and
hoisting charges at Landlord’s then standard rate. Upon completion of Tenant Alterations,
Tenant shall furnish Landlord with contractors’ affidavits and full and final waivers of
lien and receipted bills covering all labor and materials expended and used in connection
therewith and such other documentation reasonably requested by Landlord or Mortgagee.




     (3) Tenant agrees to complete all Tenant Alterations (i) in accordance with all Laws,
Environmental Laws, all requirements of applicable insurance companies and in accordance
with Landlord’s standard construction rules and regulations, and (ii) in a good and
workmanlike manner
with the use of good grades of materials. Tenant shall notify Landlord immediately if
Tenant receives any notice of violation of any Law in connection with completion of any
Tenant Alterations and shall immediately take such steps as are necessary to remedy such
violation. In no event shall such supervision or right to supervise by Landlord nor shall
any approvals given by Landlord under this Lease constitute any warranty by Landlord to
Tenant of the adequacy of the design, workmanship or quality of such work or materials for
Tenant’s intended use or of compliance with the requirements of



14









 






Section 9.01(a)(3)(i) and
(ii) above or impose any liability upon Landlord in connection with the performance of such
work.



     (b) All Tenant Additions to the Premises whether installed by Landlord or Tenant, shall
without compensation or credit to Tenant, become part of the Premises and the property of Landlord
at the time of their installation and shall remain in the Premises, unless pursuant to Article
Twelve, Tenant may remove them or is required to remove them at Landlord’s request.



9.02 LIENS




Tenant shall not permit any lien or claim for lien of any mechanic, laborer or supplier or any
other lien to be filed against the Building, the Land, the Premises, or any other part of the
Property arising out of work performed, or alleged to have been performed by, or at the direction
of, or on behalf of Tenant. If any such lien or claim for lien is filed, Tenant shall within ten
(10) days of receiving notice of such lien or claim (a) have such lien or claim for lien released
of record or (b) deliver to Landlord a bond in form, content, amount, and issued by surety,
satisfactory to Landlord, indemnifying, protecting, defending and holding harmless the Indemnitees
against all costs and liabilities resulting from such lien or claim for lien and the foreclosure or
attempted foreclosure thereof. If Tenant fails to take any of the above actions, Landlord, in
addition to its rights and remedies under Article Eleven, without investigating the validity of
such lien or claim for lien, may pay or discharge the same and Tenant shall, as payment of
additional Rent hereunder, reimburse Landlord upon demand for the amount so paid by Landlord,
including Landlord’s expenses and attorneys’ fees.



ARTICLE TEN

ASSIGNMENT AND SUBLETTING




10.01 ASSIGNMENT AND SUBLETTING




     (a) Without the prior written consent of Landlord, which may be withheld in Landlord’s sole
discretion, Tenant may not sublease, assign, mortgage, pledge, hypothecate or otherwise transfer or
permit the transfer of this Lease or the encumbering of Tenant’s interest therein in whole or in
part, by operation of Law or otherwise or permit the use or occupancy of the Premises, or any part
thereof, by anyone other than Tenant, provided, however, if Landlord chooses not to recapture the
space proposed to be subleased or assigned as provided in Section 10.02, Landlord shall not
unreasonably withhold its consent to a subletting or assignment under this Section 10.01. Tenant
agrees that the provisions governing sublease and assignment set forth in this Article Ten shall be
deemed to be reasonable. If Tenant desires to enter into any sublease of the Premises or
assignment of this Lease, Tenant shall deliver written notice thereof to Landlord (“Tenant’s
Notice”), together with the identity of the proposed subtenant or assignee and the proposed
principal terms thereof and financial and other information sufficient for Landlord to make an
informed judgment with respect to such proposed subtenant or assignee at least sixty (60) days
prior to the commencement date of the term of the proposed sublease or assignment. If Tenant
proposes to sublease less than all of the Rentable Area of the Premises, the space proposed to be
sublet and the space retained by Tenant must each be a marketable unit as reasonably determined by
Landlord and otherwise in compliance with all Laws. Landlord shall notify Tenant in writing of its
approval or disapproval of the proposed sublease or assignment or its decision to exercise its
rights under Section 10.02 within thirty (30) days after receipt of Tenant’s Notice (and all
required information). In no event may Tenant sublease any portion of the Premises or assign the
Lease to any other tenant of the Project. Tenant shall submit for Landlord’s approval (which
approval shall not be unreasonably withheld) any advertising which Tenant or its agents intend to
use with respect to the space proposed to be sublet.



     (b) With respect to Landlord’s consent to an assignment or sublease, Landlord may take into
consideration any factors which Landlord may deem relevant, and the reasons for which Landlord’s
denial shall be deemed to be reasonable shall include, without limitation, the following:




(i) the business reputation or creditworthiness of any proposed subtenant or assignee is not
acceptable to Landlord; or




(ii) in Landlord’s reasonable judgment the proposed assignee or subtenant would diminish the
value or reputation of the Building or Landlord; or




(iii) any proposed assignee’s or subtenant’s use of the Premises would violate Section 7.01
of the Lease or would violate the provisions of any other leases of tenants in the Project;




(iv) the proposed assignee or subtenant is either a governmental agency, a school or similar
operation, or a medical related practice; or




(v) the proposed subtenant or assignee is a bona fide prospective tenant of Landlord in the
Project as demonstrated by a written proposal dated within ninety (90) days prior to the
date of Tenant’s request; or




(vi) the proposed subtenant or assignee would materially increase the estimated pedestrian
and vehicular traffic to and from the Premises and the Building.



In no event shall Landlord be obligated to consider a consent to any proposed assignment of the
Lease which would assign less than the entire Premises. In the event Landlord wrongfully withholds
its consent to any proposed sublease of the Premises or assignment of the Lease, Tenant’s sole and
exclusive remedy



15









 








therefor shall be to seek specific performance of Landlord’s obligations to
consent to such sublease or assignment.



     (c) Any sublease or assignment shall be expressly subject to the terms and conditions of this
Lease. Any subtenant or assignee shall execute such documents as Landlord may reasonably require
to evidence the terms of Landlord’s consent to the sublease or assignment and the subtenant’s or
assignee’s agreement to the effect set forth in Section 10.01(e) and Section 10.05 below. Tenant
shall deliver to Landlord a copy of all agreements executed by Tenant and the proposed subtenant
and assignee with respect to the Premises. Landlord’s approval of a sublease, assignment,
hypothecation, transfer or third party use or occupancy shall not constitute a waiver of Tenant’s
obligation to obtain Landlord’s consent to further assignments or subleases, hypothecations,
transfers or third party use or occupancy.



     (d) For purposes of this Article Ten, an assignment shall be deemed to include a change in the
majority control of Tenant, resulting from any transfer, sale or assignment of shares of stock or
membership interests of Tenant occurring by operation of Law or otherwise, and includes any merger,
acquisition, consolidation or reorganization, except as otherwise provided in this Subsection
below. Notwithstanding any provision of this Section to the contrary, an assignment for purposes
of this Article does not include any transfer of control of the stock or membership interests of
Tenant through (i) any public offering of shares of stock in Tenant in accordance with applicable
State and Federal law, rules, regulations and orders if thereafter the stock shall be listed and
publicly traded through the New York Stock Exchange or the NASDAQ national market and its price
listed at least daily in the Wall Street Journal; or (ii) public sale of such stock effected
through such Exchange or the NASDAQ national market. If Tenant is a partnership, any change in the
partners of Tenant shall be deemed to be an assignment.



     (e) For purposes of this Lease, a “Permitted Transferee” shall mean any Person which: (i) is
an Affiliate; or (ii) is the corporation or other entity (the “Successor”) resulting from a merger,
consolidation or non-bankruptcy reorganization with Tenant; or (iii) is otherwise a deemed assignee
due to a change of control under section 10.01(d) above; or (iv) purchases substantially all the
assets of Tenant as a going concern (the “Purchaser”). Notwithstanding anything to the contrary in
Sections 10.01(a), 10.01(b) and 10.02, provided there is no uncured Default under this Lease,
Tenant shall have the right, without the prior written consent of Landlord, to assign this Lease to
a Permitted Transferee or to sublease the Premises or any part thereof to a Permitted Transferee
provided that: (1) Landlord receives thirty (30) days prior written notice of an assignment or
sublease; (2) with respect to an assignment of the Lease or a sublease of more than half the
Premises to an entity described in subparts (ii) or (iv) of this Section 10.01(e), the Permitted
Transferee’s net worth is not less than Tenant’s net worth immediately prior to such assignment or
subletting; (3) with respect to an assignment of the Lease or a sublease of more than half the
Premises to an entity described in subparts (i) or (iii) of this Section 10.01(e), Tenant (as the
assignor or sublandord) continues in existence with a net worth not less than Tenant’s net worth
immediately prior to such assignment or subletting; (4) the Permitted Transferee expressly assumes
(except a Permitted Transferee which is a deemed assignee under subpart (iii) of this Section
10.01(e) or which is a sublessee in the event of a sublease) in writing satisfactory to Landlord
all of the obligations of Tenant under this Lease and delivers such assumption to Landlord no later
than fifteen (15) days prior to the effective date of the assignment; (5) Landlord receives no
later than five (5) days before the effective date a fully executed copy of the applicable
assignment or sublease agreement between Tenant and the Permitted Transferee; and (6) promptly
after Landlord’s written request, Tenant and the Permitted Transferee provide such reasonable
documents and information which Landlord reasonably requests for the purpose of substantiating
whether or not the assignment or sublease is to a Permitted Transferee. All determinations of net
worth for purposes of this Subsection shall exclude any value attributable to goodwill or going
concern value.



     (f) With respect to any sublease to a Permitted Transferee pursuant to Subsection (e) above,
Tenant hereby irrevocably assigns to Landlord, effective upon any such sublease, all rent and other
payments due from subtenant under the sublease, provided however, that Tenant shall have a license
to collect such rent and other payments until the occurrence of a default by Tenant under any of
the provisions of the Lease, and notice to Tenant of such default shall not be a prerequisite to
Landlord’s right to collect subrent. At any time at Landlord’s option, Landlord shall have the
right to give notice to the subtenant of such assignment. Landlord shall credit Tenant with any
rent received by Landlord under such assignment but the acceptance of any payment on account of
rent from the subtenant as the result of any such default shall in no manner whatsoever serve to
release Tenant from any liability under the terms, covenants, conditions, provisions or agreement
under the Lease. No such payment of rent or any other payment by the subtenant directly to
Landlord and/or acceptance of such payment(s) by Landlord, regardless of the circumstances or
reasons therefor, shall in any manner whatsoever be deemed an attornment by the subtenant to
Landlord in the absence of a specific written agreement signed by Landlord to such an effect. For
purposes of this Subsection, any use or occupancy by a Permitted Transferee (unless it is an
assignee) without a formal sublease shall for the purposes of this Subsection be deemed to be a
sublease at the same rental rate as provided in the Lease.



10.02 RECAPTURE




Except with respect to an assignment or sublease to a Permitted Transferee in accordance with the
provisions of Section 10.01(e), Landlord shall have the option to exclude from the Premises covered
by this Lease (“recapture”), the space proposed to be sublet or subject to the assignment,
effective as of the proposed commencement date of such sublease or assignment. If Landlord elects
to recapture, Tenant shall surrender possession of the space proposed to be subleased or subject to
the assignment to Landlord on the effective date of recapture of such space from the Premises, such
date being the Termination Date for



16









 








such space. Effective as of the date of recapture of any
portion of the Premises pursuant to this section, the Monthly Base Rent, Rentable Area of the
Premises and Tenant’s Share shall be adjusted accordingly.



10.03 EXCESS RENT



Tenant shall pay Landlord on the first day of each month during the term of the sublease or
assignment, fifty percent (50%) of the amount by which the sum of all rent and other consideration
(direct or indirect) due from the subtenant or assignee for such month exceeds: (i) that portion of
the Monthly Base Rent and Rent Adjustments due under this Lease for said month which is allocable
to the space sublet or assigned; and (ii) the following costs and expenses for the subletting or
assignment of such space: (1) brokerage commissions and attorneys’ fees and expenses, (2) the
actual costs paid in making any improvements or substitutions in the Premises required by any
sublease or assignment; and (3) “free rent” periods, costs of any inducements or concessions given
to subtenant or assignee, moving costs, and other amounts in respect of such subtenant’s or
assignee’s other leases or occupancy arrangements. All such costs and expenses shall be amortized
over the term of the sublease or assignment pursuant to sound accounting principles.



10.04 TENANT LIABILITY



In the event of any sublease or assignment, whether or not with Landlord’s consent, Tenant shall
not be released or discharged from any liability, whether past, present or future, under this
Lease, including any liability arising from the exercise of any renewal or expansion option, to the
extent such exercise is expressly permitted by Landlord. Tenant’s liability shall remain primary,
and in the event of default by any subtenant, assignee or successor of Tenant in performance or
observance of any of the covenants or conditions of this Lease, Landlord may proceed directly
against Tenant without the necessity of exhausting remedies against said subtenant, assignee or
successor. After any assignment, Landlord may consent to subsequent assignments or subletting of
this Lease, or amendments or modifications of this Lease with assignees of Tenant, without
notifying Tenant, or any successor of Tenant, and without obtaining its or their consent thereto,
and such action shall not relieve Tenant or any successor of Tenant of liability under this Lease.
If Landlord grants consent to such sublease or assignment, Tenant shall pay all reasonable
attorneys’ fees and expenses incurred by Landlord with respect to such assignment or sublease. In
addition, if Tenant has any options to extend the term of this Lease or to add other space to the
Premises, such options shall not be available to any subtenant or assignee, directly or indirectly
without Landlord’s express written consent, which may be withheld in Landlord’s sole discretion.



10.05 ASSUMPTION AND ATTORNMENT



If Tenant shall assign this Lease as permitted herein, the assignee shall expressly assume all of
the obligations of Tenant hereunder in a written instrument satisfactory to Landlord and furnished
to Landlord not later than fifteen (15) days prior to the effective date of the assignment. If
Tenant shall sublease the Premises as permitted herein, Tenant shall, at Landlord’s option, within
fifteen (15) days following any request by Landlord, obtain and furnish to Landlord the written
agreement of such subtenant to the effect that the subtenant will attorn to Landlord and will pay
all subrent directly to Landlord.



ARTICLE ELEVEN

DEFAULT AND REMEDIES




11.01 EVENTS OF DEFAULT




The occurrence or existence of any one or more of the following shall constitute a “Default” by
Tenant under this Lease:




     (i) Tenant fails to pay any installment or other payment of Rent including Rent
Adjustment Deposits or Rent Adjustments within three (3) days after the date when due;




     (ii) Tenant fails to observe or perform any of the other covenants, conditions or
provisions of this Lease or the Workletter and fails to cure such default within fifteen
(15) days after written notice thereof to Tenant, unless the default involves a hazardous
condition, which shall be cured forthwith or unless the failure to perform is a Default for
which this Lease specifies there is no cure or grace period;




     (iii) the interest of Tenant in this Lease is levied upon under execution or other
legal process;




     (iv) a petition is filed by or against Tenant to declare Tenant bankrupt or seeking a
plan of reorganization or arrangement under any Chapter of the Bankruptcy Act, or any
amendment, replacement or substitution therefor, or to delay payment of, reduce or modify
Tenant’s debts, which in the case of an involuntary action is not discharged within thirty
(30) days;




     (v) Tenant is declared insolvent by Law or any assignment of Tenant’s property is made
for the benefit of creditors;




     (vi) a receiver is appointed for Tenant or Tenant’s property, which appointment is not
discharged within thirty (30) days;



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     (vii) any action taken by or against Tenant to reorganize or modify Tenant’s capital
structure in a materially adverse way which in the case of an involuntary action is not
discharged within thirty (30) days;




     (viii) upon the dissolution of Tenant; or




     (ix) upon the third occurrence within any Lease Year that Tenant fails to pay Rent
when due or has breached a particular covenant of this Lease (whether or not such failure or
breach is thereafter cured within any stated cure or grace period or statutory period).



11.02 LANDLORD’S REMEDIES




     (a) A Default shall constitute a breach of the Lease for which Landlord shall have the rights
and remedies set forth in this Section 11.02 and all other rights and remedies set forth in this
Lease or now or hereafter allowed by Law, whether legal or equitable, and all rights and remedies
of Landlord shall be cumulative and none shall exclude any other right or remedy.



     (b) With respect to a Default, at any time Landlord may terminate Tenant’s right to possession
by written notice to Tenant stating such election. Upon the termination of Tenant’s right to
possession pursuant to this Section 11.02, Tenant’s right to possession shall terminate and this
Lease shall terminate, and Tenant shall remain liable as hereinafter provided. Upon such
termination, Landlord shall have the right, subject to applicable Law, to re-enter the Premises and
dispossess Tenant and the legal representatives of Tenant and all other occupants of the Premises
by unlawful detainer or other summary proceedings, or otherwise as permitted by Law, regain
possession of the Premises and remove their property (including their trade fixtures, personal
property and those Tenant Additions which Tenant is required or permitted to remove under Article
Twelve), but Landlord shall not be obligated to effect such removal, and such property may, at
Landlord’s option, be stored elsewhere, sold or otherwise dealt with as permitted by Law, at the
risk of, expense of and for the account of Tenant, and the proceeds of any sale shall be applied
pursuant to Law. Landlord shall in no event be responsible for the value, preservation or
safekeeping of any such property. Tenant hereby waives all claims for damages that may be caused
by Landlord’s removing or storing Tenant’s personal property pursuant to this Section or Section
12.01, and Tenant hereby indemnifies, and agrees to defend, protect and hold harmless, the
Indemnitees from any and all loss, claims, demands, actions, expenses, liability and cost
(including attorneys’ fees and expenses) arising out of or in any way related to such removal or
storage. Upon such written termination of Tenant’s right to possession and this Lease, Landlord
shall have the right to recover damages for Tenant’s Default as provided herein or by Law,
including the following damages provided by California Civil Code Section 1951.2:




     (1) the worth at the time of award of the unpaid 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 Rent which would
have been earned after termination until the time of award exceeds the amount of such Rent
loss that Tenant proves could reasonably have been avoided;




     (3) the worth at the time of award of the amount by which the unpaid Rent for the
balance of the term of this Lease after the time of award exceeds the amount of such Rent
loss that Tenant proves could be reasonably avoided; and




     (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 therefrom. The word “rent” as used in
this Section 11.02 shall have the same meaning as the defined term Rent in this Lease. The
“worth at the time of award” of the amount referred to in clauses (1) and (2) above is
computed by allowing interest at the Default Rate. The worth at the time of award of the
amount referred to in clause (3) above is computed by discounting such amount at the
discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one
percent (1%). For the purpose of determining unpaid Rent under clause (3) above, the
monthly Rent reserved in this Lease shall be deemed to be the sum of the Monthly Base Rent,
and monthly Storage Space Rent, if any, and the amounts last payable by Tenant as Rent
Adjustments for the calendar year in which Landlord terminated this Lease as provided
hereinabove.



     (c) Even if Tenant is in Default and/or has abandoned the Premises, this Lease shall continue
in effect for so long as Landlord does not terminate Tenant’s right to possession by written notice
as provided in Section 11.02(b) above, and Landlord may enforce all its rights and remedies under
this Lease, including the right to recover Rent as it becomes due under this Lease. In such event,
Landlord shall have all of the rights and remedies of a landlord under California Civil Code
Section 1951.4 (lessor may continue Lease in effect after Tenant’s Default and abandonment and
recover Rent as it becomes due, if Tenant has the right to sublet or assign, subject only to
reasonable limitations), or any successor statute. During such time as Tenant is in Default, if
Landlord has not terminated this Lease by written notice and if Tenant requests
Landlord’s consent to an assignment of this Lease or a sublease of the Premises, subject to
Landlord’s option to recapture pursuant to Section 10.02, Landlord shall not unreasonably withhold
its consent to such assignment or sublease. Tenant acknowledges and agrees that the provisions of
Article Ten shall be deemed to constitute reasonable limitations of Tenant’s right to assign or
sublet. Tenant acknowledges and agrees that in the absence of written notice pursuant to Section
11.02(b) above terminating Tenant’s right to possession, no other act of Landlord shall constitute
a termination of Tenant’s right to possession or an acceptance of Tenant’s surrender of the
Premises, including acts of maintenance or preservation or efforts to




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relet the Premises or the
appointment of a receiver upon initiative of Landlord to protect Landlord’s interest under this
Lease or the withholding of consent to a subletting or assignment, or terminating a subletting or
assignment, if in accordance with other provisions of this Lease.




     (d) In the event that Landlord seeks an injunction with respect to a breach or threatened
breach by Tenant of any of the covenants, conditions or provisions of this Lease, Tenant agrees to
pay the premium for any bond required in connection with such injunction.



     (e) Tenant hereby waives any and all rights to relief from forfeiture, redemption or
reinstatement granted by Law (including California Civil Code of Procedure Sections 1174 and 1179)
in the event of Tenant being evicted or dispossessed for any cause or in the event of Landlord
obtaining possession of the Premises by reason of Tenant’s Default or otherwise;



     (f) When this Lease requires giving or service of a notice of Default or of a failure of
Tenant to observe or perform any covenant, condition or provision of this Lease which will
constitute a Default unless Tenant so observes or performs within any applicable cure period, and
so long as the notice given or served provides Tenant the longer of any applicable cure period
required by this Lease or by statute, then the giving of any equivalent or similar statutory
notice, including any equivalent or similar notices required by California Code of Civil Procedure
Section 1161 or any similar or successor statute, shall replace and suffice as any notice required
under this Lease. When a statute requires service of a notice in a particular manner, service of
that notice (or a similar notice required by this Lease) in the manner required by Article
Twenty-four shall replace and satisfy the statutory service–of–notice procedures, except that any
notice of unlawful detainer required by California Code of Civil Procedure Section 1161 or any
similar or successor statute shall be served as required by Code of Civil Procedure Section 1162 or
any similar or successor statute, and for purposes of Code of Civil Procedure Section 1162 or any
similar or successor statute, Tenant’s “place of residence” and “usual place of business” shall
mean the address specified by Tenant for notice pursuant to Section 1.01 of this Lease, as changed
by Tenant pursuant to Article Twenty-four of this Lease.



     (g) The voluntary or other surrender or termination of this Lease, or a mutual termination or
cancellation thereof, shall not work a merger and shall terminate all or any existing assignments,
subleases, subtenancies or occupancies permitted by Tenant, except if and as otherwise specified in
writing by Landlord.



     (h) No delay or omission in the exercise of any right or remedy of Landlord upon any default
by Tenant, and no exercise by Landlord of its rights pursuant to Section 26.15 to perform any duty
which Tenant fails timely to perform, shall impair any right or remedy or be construed as a waiver.
No provision of this Lease shall be deemed waived by Landlord unless such waiver is in a writing
signed by Landlord. The waiver by Landlord of any breach of any provision of this Lease shall not
be deemed a waiver of any subsequent breach of the same or any other provision of this Lease.



11.03 ATTORNEY’S FEES




     In the event any party brings any suit or other proceeding with respect to the subject matter or
enforcement of this Lease, the prevailing party (as determined by the court, agency or other
authority before which such suit or proceeding is commenced) shall, in addition to such other
relief as may be awarded, be entitled to recover attorneys’ fees, expenses and costs of
investigation as actually incurred, including court costs, expert witness fees, costs and expenses
of investigation, and all attorneys’ fees, costs and expenses in any such suit or proceeding
(including in any action or participation in or in connection with any case or proceeding under the
Bankruptcy Code, 11 United States Code Sections 101 et seq., or any successor statutes, in
establishing or enforcing the right to indemnification, in appellate proceedings, or in connection
with the enforcement or collection of any judgment obtained in any such suit or proceeding).



11.04 BANKRUPTCY




     The following provisions shall apply in the event of the bankruptcy or insolvency of Tenant:



     (a) In connection with any proceeding under Chapter 7 of the Bankruptcy Code where the trustee
of Tenant elects to assume this Lease for the purposes of assigning it, such election or
assignment, may only be made upon compliance with the provisions of (b) and (c) below, which
conditions Landlord and Tenant acknowledge to be commercially reasonable. In the event the trustee
elects to reject this Lease then Landlord shall immediately be entitled to possession of the
Premises without further obligation to Tenant or the trustee.



     (b) Any election to assume this Lease under Chapter 11 or 13 of the Bankruptcy Code by Tenant
as debtor-in-possession or by Tenant’s trustee (the “Electing Party”) must provide for:



     The Electing Party to cure or provide to Landlord adequate assurance that it will cure all
monetary defaults under this Lease within fifteen (15) days from the date of assumption and
it will cure all
nonmonetary defaults under this Lease within thirty (30) days from the date of assumption.
Landlord and Tenant acknowledge such condition to be commercially reasonable.



     (c) If the Electing Party has assumed this Lease or elects to assign Tenant’s interest under
this Lease to any other person, such interest may be assigned only if the intended assignee has
provided adequate assurance of future performance (as herein defined), of all of the obligations
imposed on Tenant under this Lease.



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     For the purposes hereof, “adequate assurance of future performance” means that Landlord has
ascertained that each of the following conditions has been satisfied:




     (i) The assignee has submitted a current financial statement, certified by its chief
financial officer, which shows a net worth and working capital in amounts sufficient to
assure the future performance by the assignee of Tenant’s obligations under this Lease; and




     (ii) Landlord has obtained consents or waivers from any third parties which may be
required under a lease, mortgage, financing arrangement, or other agreement by which
Landlord is bound, to enable Landlord to permit such assignment.



     (d) Landlord’s acceptance of rent or any other payment from any trustee, receiver, assignee,
person, or other entity will not be deemed to have waived, or waive, the requirement of Landlord’s
consent, Landlord’s right to terminate this Lease for any transfer of Tenant’s interest under this
Lease without such consent, or Landlord’s claim for any amount of Rent due from Tenant.



11.05 LANDLORD’S DEFAULT




     Landlord shall be in default hereunder in the event Landlord has not begun and pursued with
reasonable diligence the cure of any failure of Landlord to meet its obligations hereunder within
thirty (30) days after the receipt by Landlord of written notice from Tenant of the alleged failure
to perform. In no event shall Tenant have the right to terminate or rescind this Lease as a result
of Landlord’s default as to any covenant or agreement contained in this Lease. Tenant hereby waives
such remedies of termination and rescission and hereby agrees that Tenant’s remedies for default
hereunder and for breach of any promise or inducement shall be limited to a suit for damages and/or
injunction. In addition, Tenant hereby covenants that, prior to the exercise of any such remedies,
it will give Mortgagee notice and a reasonable time to cure any default by Landlord.



ARTICLE TWELVE

SURRENDER OF PREMISES




12.01 IN GENERAL




     Upon the Termination Date, subject to Article Fourteen, Tenant shall surrender and vacate the
Premises immediately and deliver possession thereof to Landlord in the same condition received,
except as provided in Section 2 of Rider 2 of this Lease and except for ordinary wear and tear and
damage caused by Landlord. Tenant shall deliver to Landlord all keys to the Premises. Tenant
shall remove from the Premises all movable personal property of Tenant and Tenant’s trade fixtures,
including, subject to Section 6.03 and Section 2 of Rider 2, cabling for any of the foregoing
installed by Tenant before or after the Commencement Date, or installed by Openwave (defined in
Rider 2) in the Premises prior to the Commencement Date. Tenant shall be entitled to remove such
Tenant Additions which at the time of their installation Landlord and Tenant agreed may be removed
by Tenant. Tenant shall also remove such other Tenant Additions as required by Landlord, including
any Tenant Additions containing Hazardous Material. Tenant immediately shall repair all damage
resulting from removal of any of Tenant’s property, furnishings or Tenant Additions. In the event
possession of the Premises is not delivered to Landlord when required hereunder, or if Tenant shall
fail to remove those items described above, Landlord may (but shall not be obligated to), at
Tenant’s expense, remove any of such property and store, sell or otherwise deal with such property
as provided in Section 11.02(b), including the waiver and indemnity obligations provided in that
Section, and undertake, at Tenant’s expense, such restoration work as Landlord deems necessary or
advisable.



12.02 LANDLORD’S RIGHTS




     All property which may be removed from the Premises by Landlord shall be conclusively presumed to
have been abandoned by Tenant and Landlord may deal with such property as provided in Section
11.02(b), including the waiver and indemnity obligations provided in that Section. Tenant shall
also reimburse Landlord for all costs and expenses incurred by Landlord in removing any of Tenant
Additions and in restoring the Premises to the condition required by this Lease at the Termination
Date.



ARTICLE THIRTEEN

HOLDING OVER




     Tenant shall pay Landlord the greater of (i) double the monthly Rent payable for the month
immediately preceding the holding over (including increases for Rent Adjustments which Landlord may
reasonably estimate) or, (ii) double the fair market rental value of the Premises as reasonably
determined by Landlord for each month or portion thereof that Tenant retains possession of the
Premises, or any portion thereof, after the Termination Date (without reduction for any partial
month that Tenant retains possession). Tenant shall also pay all damages sustained by Landlord by
reason of such retention of possession. The provisions of
this Article shall not constitute a waiver by Landlord of any re-entry rights of Landlord and
Tenant’s continued occupancy of the Premises shall be as a tenancy in sufferance. If Tenant
retains possession of the Premises, or any part thereof for thirty (30) days after the Termination
Date then at the sole option of Landlord expressed by written notice to Tenant, but not otherwise,
such holding over shall constitute an extension of the Term of this Lease for a period of one (1)
year on the same terms and conditions (including those with respect to the payment of Rent) as
provided in this Lease, except that the Monthly Base Rent for such period shall be equal to the
greater of (i) 150% of the Monthly Base Rent payable during the month



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preceding the Termination
Date, or (ii) 150% of the monthly base rent then being quoted by Landlord for similar space in the
Building.




ARTICLE FOURTEEN

DAMAGE BY FIRE OR OTHER CASUALTY




14.01 SUBSTANTIAL UNTENANTABILITY




     (a) If any fire or other casualty (whether insured or uninsured) renders all or a substantial
portion of the Premises or the Building untenantable, Landlord shall, with reasonable promptness
after the occurrence of such damage, estimate the length of time that will be required to
substantially complete the repair and restoration and shall by notice advise Tenant of such
estimate (“Landlord’s Notice”). If Landlord estimates that the amount of time required to
substantially complete such repair and restoration will exceed sixty (60) days from the date such
damage occurred, then Landlord, or Tenant if all or a substantial portion of the Premises is
rendered untenantable, shall have the right to terminate this Lease as of the date of such damage
upon giving written notice to the other at any time within twenty (20) days after delivery of
Landlord’s Notice, provided that if Landlord so chooses, Landlord’s Notice may also constitute such
notice of termination.



     (b) In the event that the Building is damaged or destroyed to the extent of more than
twenty-five percent (25%) of its replacement cost or to any extent if no insurance proceeds or
insufficient insurance proceeds are receivable by Landlord, or if the buildings at the Project
shall be damaged to the extent of fifty percent (50%) or more of the replacement value or to any
extent if no insurance proceeds or insufficient insurance proceeds are receivable by Landlord, and
regardless of whether or not the Premises be damaged, Landlord may elect by written notice to
Tenant given within thirty (30) days after the occurrence of the casualty to terminate this Lease
in lieu of so restoring the Premises, in which event this Lease shall terminate as of the date
specified in Landlord’s notice, which date shall be no later than sixty (60) days following the
date of Landlord’s notice.



     (c) Unless this Lease is terminated as provided in the preceding Subsections 14.01 (a) and
(b), Landlord shall proceed with reasonable promptness to repair and restore the Premises to its
condition as existed prior to such casualty, subject to reasonable delays for insurance adjustments
and Force Majeure delays, and also subject to zoning Laws and building codes then in effect.
Landlord shall have no liability to Tenant, and Tenant shall not be entitled to terminate this
Lease if such repairs and restoration are not in fact completed within the time period estimated by
Landlord so long as Landlord shall proceed with reasonable diligence to complete such repairs and
restoration.



     (d) Tenant acknowledges that Landlord shall be entitled to the full proceeds of any insurance
coverage, whether carried by Landlord or Tenant, for damages to the Premises, except for those
proceeds of Tenant’s insurance of its own personal property and equipment which would be removable
by Tenant at the Termination Date. All such insurance proceeds shall be payable to Landlord
whether or not the Premises are to be repaired and restored, provided, however, if this Lease is
not terminated and the parties proceed to repair and restore Tenant Additions at Tenant’s cost, to
the extent Landlord received proceeds of Tenant’s insurance covering Tenant Additions, such
proceeds shall be applied to reimburse Tenant for its cost of repairing and restoring Tenant
Additions.



     (e) Notwithstanding anything in this Article Fourteen to the contrary: (i) Landlord shall
have no duty pursuant to this Section to repair or restore any portion of any Tenant Additions or
to expend for any repair or restoration of the Premises or Building amounts in excess of insurance
proceeds paid to Landlord and available for repair or restoration; and (ii) Tenant shall not have
the right to terminate this Lease pursuant to this Section if any damage or destruction was caused
by the act or neglect of Tenant, its agent or employees. Whether or not the Lease is terminated
pursuant to this Article Fourteen, in no event shall Tenant be entitled to any compensation or
damages for loss of the use of the whole or any part of the Premises or for any inconvenience or
annoyance occasioned by any such damage, destruction, rebuilding or restoration of the Premises or
the Building or access thereto.



     (f) Any repair or restoration of the Premises performed by Tenant shall be in accordance with
the provisions of Article Nine hereof.



14.02 INSUBSTANTIAL UNTENANTABILITY



Unless this Lease is terminated as provided in the preceding Subsections 14.01 (a) and (b), then
Landlord shall proceed to repair and restore the Building or the Premises other than Tenant
Additions, with reasonable promptness, unless such damage is to the Premises and occurs during the
last six (6) months of the Term, in which event either Tenant or Landlord shall have the right to
terminate this Lease as of the date of such casualty by giving written notice thereof to the other
within twenty (20) days after the date of such casualty. Notwithstanding the foregoing, Landlord’s
obligation to repair shall be limited in accordance with the provisions of Section 14.01 above.




14.03 RENT ABATEMENT



Except for the negligence or willful act of Tenant or its agents, employees, contractors or
invitees, if all or any part of the Premises are rendered untenantable by fire or other casualty
and this Lease is not terminated, Monthly Base Rent and Rent Adjustments shall abate for that part
of the Premises which is untenantable on a per diem basis from the date of the casualty until
Landlord has Substantially Completed the repair and





21









 







restoration work in the Premises which it is
required to perform, provided, that as a result of such casualty, Tenant does not occupy the
portion of the Premises which is untenantable during such period.




14.04 WAIVER OF STATUTORY REMEDIES



The provisions of this Lease, including this Article Fourteen, constitute an express agreement
between Landlord and Tenant with respect to any and all damage to, or destruction of, the Premises
or the Property or any part of either, and any Law, including Sections 1932(2), 1933(4), 1941 and
1942 of the California Civil Code, with respect to any rights or obligations concerning damage or
destruction shall have no application to this Lease or to any damage to or destruction of all or
any part of the Premises or the Property or any part of either, and are hereby waived.




ARTICLE FIFTEEN

EMINENT DOMAIN




15.01 TAKING OF WHOLE OR SUBSTANTIAL PART



In the event the whole or any substantial part of the Building or of the Premises is taken or
condemned by any competent authority for any public use or purpose (including a deed given in lieu
of condemnation) and is thereby rendered untenantable, this Lease shall terminate as of the date
title vests in such authority or any earlier date on which possession is required to be surrendered
to such authority, and Monthly Base Rent and Rent Adjustments shall be apportioned as of the
Termination Date. Further, if at least twenty-five percent (25%) of the rentable area of the
Project is taken or condemned by any competent authority for any public use or purpose (including a
deed given in lieu of condemnation), and regardless of whether or not the Premises be so taken or
condemned, Landlord may elect by written notice to Tenant to terminate this Lease as of the date
title vests in such authority or any earlier date on which possession is required to be surrendered
to such authority, and Monthly Base Rent and Rent Adjustments shall be apportioned as of the
Termination Date. Landlord may, without any obligation to Tenant, agree to sell or convey to the
taking authority the Premises, the Building, Tenant’s Phase, the Project or any portion thereof
sought by the taking authority, free from this Lease and the right of Tenant hereunder, without
first requiring that any action or proceeding be instituted or, if instituted, pursued to a
judgment. Notwithstanding anything to the contrary herein set forth, in the event the taking of
the Building or Premises is temporary (for less than the remaining term of the Lease), Landlord may
elect either (i) to terminate this Lease or (ii) permit Tenant to receive the entire award
attributable to the Premises in which case Tenant shall continue to pay Rent and this Lease shall
not terminate.




15.02 TAKING OF PART



In the event a part of the Building or the Premises is taken or condemned by any competent
authority (or a deed is delivered in lieu of condemnation) and this Lease is not terminated, the
Lease shall be amended to reduce or increase, as the case may be, the Monthly Base Rent and
Tenant’s Share to reflect the Rentable Area of the Premises or Building, as the case may be,
remaining after any such taking or condemnation. Landlord, upon receipt and to the extent of the
award in condemnation (or proceeds of sale) shall make necessary repairs and restorations to the
Premises (exclusive of Tenant Additions) and to the Building to the extent necessary to constitute
the portion of the Building not so taken or condemned as a complete architectural and economically
efficient unit. Notwithstanding the foregoing, if as a result of any taking, or a governmental
order that the grade of any street or alley adjacent to the Building is to be changed and such
taking or change of grade makes it necessary or desirable to substantially remodel or restore the
Building or prevents the economical operation of the Building, Landlord shall have the right to
terminate this Lease upon ninety (90) days prior written notice to Tenant.




15.03 COMPENSATION



Landlord shall be entitled to receive the entire award (or sale proceeds) from any such taking,
condemnation or sale without any payment to Tenant, and Tenant hereby assigns to Landlord Tenant’s
interest, if any, in such award; provided, however, Tenant shall have the right separately to
pursue against the condemning authority a separate award in respect of the loss, if any, to Tenant
Additions paid for by Tenant without any credit or allowance from Landlord, for fixtures or
personal property of Tenant, or for relocation or business interruption expenses, so long as there
is no diminution of Landlord’s award as a result.




ARTICLE SIXTEEN

INSURANCE




16.01 TENANT’S INSURANCE



Tenant, at Tenant’s expense, agrees to maintain in force, with a company or companies acceptable to
Landlord, during the Term: (a) Commercial General Liability Insurance on a primary basis and
without any
right of contribution from any insurance carried by Landlord covering the Premises on an occurrence
basis against all claims for personal injury, bodily injury, death and property damage, including
contractual liability covering the indemnification provisions in this Lease. Such insurance shall
be for such limits that are reasonably required by Landlord from time to time but not less than a
combined single limit of Five Million and No/100 Dollars ($5,000,000.00); (b) Workers’ Compensation
and Employers’ Liability Insurance to the extent required by and in accordance with the Laws of the
State of California; (c) “All Risks” property insurance in an amount adequate to cover the full
replacement cost of all Tenant Additions to the Premises, equipment, installations, fixtures and
contents of the Premises in the event of loss; (d) In the event a motor





22









 







vehicle is to be used by
Tenant in connection with its business operation from the Premises, Comprehensive Automobile
Liability Insurance coverage with limits of not less than Three Million and No/100 Dollars
($3,000,000.00) combined single limit coverage against bodily injury liability and property damage
liability arising out of the use by or on behalf of Tenant, its agents and employees in connection
with this Lease, of any owned, non-owned or hired motor vehicles; and (e) such other insurance or
coverages as Landlord reasonably requires.




16.02 FORM OF POLICIES



Each policy referred to in 16.01 shall satisfy the following requirements. Each policy shall (i)
name Landlord and the Indemnitees as additional insureds (except Workers’ Compensation and
Employers’ Liability Insurance), (ii) be issued by one or more responsible insurance companies
licensed to do business in the State of California reasonably satisfactory to Landlord, (iii) where
applicable, provide for deductible amounts satisfactory to Landlord and not permit co-insurance,
(iv) shall provide that such insurance may not be canceled or amended without thirty (30) days’
prior written notice to the Landlord, and (v) each policy of “All-Risks” property insurance shall
provide that the policy shall not be invalidated should the insured waive in writing prior to a
loss, any or all rights of recovery against any other party for losses covered by such policies.
Tenant shall deliver to Landlord, certificates of insurance and at Landlord’s request, copies of
all policies and renewals thereof to be maintained by Tenant hereunder, not less than ten (10) days
prior to the Commencement Date and not less than ten (10) days prior to the expiration date of each
policy.




16.03 LANDLORD’S INSURANCE



Landlord agrees to purchase and keep in full force and effect during the Term hereof, including any
extensions or renewals thereof, insurance under policies issued by insurers of recognized
responsibility, qualified to do business in the State of California on the Building in amounts not
less than the greater of eighty (80%) percent of the then full replacement cost (without
depreciation) of the Building (above foundations and excluding Tenant Additions to the Premises) or
an amount sufficient to prevent Landlord from becoming a co-insurer under the terms of the
applicable policies, against fire and such other risks as may be included in standard forms of all
risk coverage insurance reasonably available from time to time. Landlord agrees to maintain in
force during the Term, Commercial General Liability Insurance covering the Building on an
occurrence basis against all claims for personal injury, bodily injury, death and property damage.
Such insurance shall be for a combined single limit of Five Million and No/100 Dollars
($5,000,000.00). Neither Landlord’s obligation to carry such insurance nor the carrying of such
insurance shall be deemed to be an indemnity by Landlord with respect to any claim, liability,
loss, cost or expense due, in whole or in part, to Tenant’s negligent acts or omissions or willful
misconduct. Without obligation to do so, Landlord may, in its sole discretion from time to time,
carry insurance in amounts greater and/or for coverage additional to the coverage and amounts set
forth above.




16.04 WAIVER OF SUBROGATION




     (a) Landlord agrees that, if obtainable at no, or minimal, additional cost, and so long as the
same is permitted under the laws of the State of California, it will include in its “All Risks”
policies appropriate clauses pursuant to which the insurance companies (i) waive all right of
subrogation against Tenant with respect to losses payable under such policies and/or (ii) agree
that such policies shall not be invalidated should the insured waive in writing prior to a loss any
or all right of recovery against any party for losses covered by such policies.



     (b) Tenant agrees to include, if obtainable at no, or minimal, additional cost, and so long as
the same is permitted under the laws of the State of California, in its “All Risks” insurance
policy or policies on Tenant Additions to the Premises, whether or not removable, and on Tenant’s
furniture, furnishings, fixtures and other property removable by Tenant under the provisions of
this Lease appropriate clauses pursuant to which the insurance company or companies (i) waive the
right of subrogation against Landlord and/or any tenant of space in the Building with respect to
losses payable under such policy or policies and/or (ii) agree that such policy or policies shall
not be invalidated should the insured waive in writing prior to a loss any or all right of recovery
against any party for losses covered by such policy or policies. If Tenant is unable to obtain in
such policy or policies either of the clauses described in the preceding sentence, Tenant shall, if
legally possible and without necessitating a change in insurance carriers, have Landlord named in
such policy or policies as an additional insured. If Landlord shall be named as an additional
insured in accordance with the foregoing, Landlord agrees to endorse promptly to the order of
Tenant, without recourse, any check, draft, or order for the payment of money representing the
proceeds of any such policy or representing any other payment growing out of or connected with said
policies, and Landlord does hereby irrevocably waive any and all rights in and to such proceeds and
payments.



     (c) Provided that Landlord’s right of full recovery under its policy or policies aforesaid is
not adversely affected or prejudiced thereby, Landlord hereby waives any and all right of recovery
which it might otherwise have against Tenant, its servants, agents and employees, for loss or
damage occurring to the Real
Property and the fixtures, appurtenances and equipment therein, except Tenant Additions, to the
extent the same is covered by Landlord’s insurance, notwithstanding that such loss or damage may
result from the negligence or fault of Tenant, its servants, agents or employees. Provided that
Tenant’s right of full recovery under its aforesaid policy or policies is not adversely affected or
prejudiced thereby, Tenant hereby waives any and all right of recovery which it might otherwise
have against Landlord, its servants, and employees and against every other tenant in the Real
Property who shall have executed a similar waiver as set forth in this Section 16.04 (c) for loss
or damage to Tenant Additions, whether or not removable, and to Tenant’s furniture, furnishings,
fixtures and other property removable by Tenant under the provisions hereof to the



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extent the same
is covered or coverable by Tenant’s insurance required under this Lease, notwithstanding that such
loss or damage may result from the negligence or fault of Landlord, its servants, agents or
employees, or such other tenant and the servants, agents or employees thereof.




     (d) Landlord and Tenant hereby agree to advise the other promptly if the clauses to be
included in their respective insurance policies pursuant to subparagraphs (a) and (b) above cannot
be obtained on the terms hereinbefore provided and thereafter to furnish the other with a
certificate of insurance or copy of such policies showing the naming of the other as an additional
insured, as aforesaid. Landlord and Tenant hereby also agree to notify the other promptly of any
cancellation or change of the terms of any such policy which would affect such clauses or naming.
All such policies which name both Landlord and Tenant as additional insureds shall, to the extent
obtainable, contain agreements by the insurers to the effect that no act or omission of any
additional insured will invalidate the policy as to the other additional insureds.



16.05 NOTICE OF CASUALTY



Tenant shall give Landlord notice in case of a fire or accident in the Premises promptly after
Tenant is aware of such event.




ARTICLE SEVENTEEN

WAIVER OF CLAIMS AND INDEMNITY




17.01 WAIVER OF CLAIMS



To the extent permitted by Law, Tenant releases the Indemnitees from, and waives all claims for,
damage to person or property sustained by the Tenant or any occupant of the Premises or the
Property resulting directly or indirectly from any existing or future condition, defect, matter or
thing in and about the Premises or the Property, or any part of either, or any equipment or
appurtenance therein, or resulting from any accident in or about the Premises or the Property, or
resulting directly or indirectly from any act or neglect of any tenant or occupant of the Property
or of any other person, including Landlord’s agents and servants, except to the extent caused by
the willful and wrongful act of any of the Indemnitees. If any such damage, whether to the Premises
or the Property or any part of either, or whether to Landlord or to other tenants in the Property,
results from any act or neglect of Tenant, its employees, servants, agents, contractors, invitees
or customers, Tenant shall be liable therefor and Landlord may, at Landlord’s option, repair such
damage and Tenant shall, upon demand by Landlord, as payment of additional Rent hereunder,
reimburse Landlord within ten (10) days of demand for the total cost of such repairs, in excess of
amounts, if any, paid to Landlord under insurance covering such damages. Tenant shall not be
liable for any such damage caused by its acts or neglect if Landlord or a tenant has recovered the
full amount of the damage from proceeds of insurance policies and the insurance company has waived
its right of subrogation against Tenant.




17.02 INDEMNITY BY TENANT



To the extent permitted by Law, Tenant hereby indemnifies, and agrees to protect, defend and hold
the Indemnitees harmless, against any and all actions, claims, demands, liability, costs and
expenses, including attorneys’ fees and expenses for the defense thereof, arising from Tenant’s
occupancy of the Premises, from the undertaking of any Tenant Additions or repairs to the Premises,
from the conduct of Tenant’s business on the Premises, or from any breach or default on the part of
Tenant in the performance of any covenant or agreement on the part of Tenant to be performed
pursuant to the terms of this Lease, or from any willful act or negligence of Tenant, its agents,
contractors, servants, employees, customers or invitees, in or about the Premises or the Property
or any part of either. In case of any action or proceeding brought against the Indemnitees by
reason of any such claim, upon notice from Landlord, Tenant covenants to defend such action or
proceeding by counsel chosen by Landlord, in Landlord’s sole discretion. Landlord reserves the
right to settle, compromise or dispose of any and all actions, claims and demands related to the
foregoing indemnity. The foregoing indemnity shall not operate to relieve Indemnitees of liability
to the extent such liability is caused by the willful and wrongful act of Indemnitees. Further,
the foregoing indemnity is subject to and shall not diminish any waivers in effect in accordance
with Section 16.04 by Landlord or its insurers to the extent of amounts, if any, paid to Landlord
under its “All-Risks” property insurance.




17.03 WAIVER OF CONSEQUENTIAL DAMAGES



To the extent permitted by law, Tenant hereby waives and releases the Indemnitees from any
consequential damages, compensation or claims for inconvenience or loss of business or profits as a
result of any injury or damage, whether or not caused by the willful and wrongful act of any of the
Indemnitees.




ARTICLE EIGHTEEN

RULES AND REGULATIONS




18.01 RULES



Tenant agrees for itself and for its subtenants, employees, agents, and invitees to comply with all
rules and regulations for use of the Premises, the Building, the Phase and the Project imposed by
Landlord, as the same may be revised from time to time, including the following: (a) Tenant shall
comply with all of the requirements of Landlord’s emergency response plan, as the same may be
amended from time to time; and (b) Tenant shall not place any furniture, furnishings, fixtures or
equipment in the Premises in a manner so as to obstruct the windows of the Premises to cause the
Building, in Landlord’s good faith determination, to






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appear unsightly from the exterior. Such
rules and regulations are and shall be imposed for the cleanliness, good appearance, proper
maintenance, good order and reasonable use of the Premises, the Building, the Phase and the Project
and as may be necessary for the enjoyment of the Building and the Project by all tenants and their
clients, customers, and employees.




18.02 ENFORCEMENT



Nothing in this Lease shall be construed to impose upon the Landlord any duty or obligation to
enforce the rules and regulations as set forth above or as hereafter adopted, or the terms,
covenants or conditions of any other lease as against any other tenant, and the Landlord shall not
be liable to the Tenant for violation of the same by any other tenant, its servants, employees,
agents, visitors or licensees. Landlord shall use reasonable efforts to enforce the rules and
regulations of the Building in a uniform and non-discriminatory manner.




ARTICLE NINETEEN

LANDLORD’S RESERVED RIGHTS



Landlord shall have the following rights exercisable without notice to Tenant and without liability
to Tenant for damage or injury to persons, property or business and without being deemed an
eviction or disturbance of Tenant’s use or possession of the Premises or giving rise to any claim
for offset or abatement of Rent: (1) to change the Building’s name or street address upon thirty
(30) days’ prior written notice to Tenant; (2) to install, affix and maintain all signs on the
exterior and/or interior of the Building; (3) to designate and/or approve prior to installation,
all types of signs, window shades, blinds, drapes, awnings or other similar items, and all internal
lighting that may be visible from the exterior of the Premises; (4) upon reasonable notice to
Tenant, to display the Premises to prospective purchasers at reasonable hours at any time during
the Term and to prospective tenants at reasonable hours during the last twelve (12) months of the
Term; (5) to grant to any party the exclusive right to conduct any business or render any service
in or to the Building, provided such exclusive right shall not operate to prohibit Tenant from
using the Premises for the purpose permitted hereunder; (6) to change the arrangement and/or
location of entrances or passageways, doors and doorways, corridors, elevators, stairs, washrooms
or public portions of the Building, and to close entrances, doors, corridors, elevators or other
facilities, provided that such action shall not materially and adversely interfere with Tenant’s
access to the Premises or the Building; (7) to have access for Landlord and other tenants of the
Building to any mail chutes and boxes located in or on the Premises as required by any applicable
rules of the United States Post Office; and (8) to close the Building after Standard Operating
Hours, except that Tenant and its employees and invitees shall be entitled to admission at all
times, under such regulations as Landlord prescribes for security purposes.




ARTICLE TWENTY

ESTOPPEL CERTIFICATE




20.01 IN GENERAL



Within fifteen (15) days after request therefor by Landlord, Mortgagee or any prospective mortgagee
or owner, Tenant agrees as directed in such request to execute an Estoppel Certificate in
recordable form, binding upon Tenant, certifying (i) that this Lease is unmodified and in full
force and effect (or if there have been modifications, a description of such modifications and that
this Lease as modified is in full force and effect); (ii) the dates to which Rent has been paid;
(iii) that Tenant is in the possession of the Premises if that is the case; (iv) that Landlord is
not in default under this Lease, or, if Tenant believes Landlord is in default, the nature thereof
in detail; (v) that Tenant has no offsets or defenses to the performance of its obligations under
this Lease (or if Tenant believes there are any offsets or defenses, a full and complete
explanation thereof); (vi) that the Premises have been completed in accordance with the terms and
provisions hereof, that Tenant has accepted the Premises and the condition thereof and of all
improvements thereto and has no claims against Landlord or any other party with respect thereto;
(vii) that if an assignment of rents or leases has been served upon the Tenant by a Mortgagee,
Tenant will acknowledge receipt thereof and agree to be bound by the provisions thereof; (viii)
that Tenant will give to the Mortgagee copies of all notices required or permitted to be given by
Tenant to Landlord; and (ix) to any other information reasonably requested.




20.02 ENFORCEMENT



In the event that Tenant fails to deliver an Estoppel Certificate, then such failure shall be a
Default for which there shall be no cure or grace period. In addition to any other remedy
available to Landlord, Landlord may impose a charge equal to $500.00 for each day that Tenant fails
to deliver an Estoppel Certificate and Tenant shall be deemed to have irrevocably appointed
Landlord as Tenant’s attorney-in-fact to execute and deliver such Estoppel Certificate.




ARTICLE TWENTY-ONE

INTENTIONALLY OMITTED




ARTICLE TWENTY-TWO

REAL ESTATE BROKERS



Tenant represents that in connection with this Lease it is represented by Tenant’s Broker
identified in Section 1.01(19) and, except for Tenant’s Broker and Landlord’s Broker identified in
Section 1.01(19), Tenant has not dealt with any real estate broker, sales person, or finder in
connection with this Lease, and no such person initiated or participated in the negotiation of this
Lease. Tenant hereby indemnifies and agrees to protect,





25









 







defend and hold Landlord and Landlord’s
Broker harmless from and against all claims, losses, damages, liability, costs and expenses
(including, without limitation, attorneys’ fees and expenses) by virtue of any broker, agent or
other person claiming a commission or other form of compensation by virtue of alleged
representation of, or dealings or discussions with, Tenant with respect to the subject matter of
this Lease, except for Landlord’s Broker and except for a commission payable to Tenant’s Broker to
the extent provided for in a separate written agreement between Tenant’s Broker and Landlord’s
Broker. Tenant is not obligated to pay or fund any amount to Landlord’s Broker, and Landlord
hereby agrees to pay such commission, if any, to which Landlord’s Broker is entitled in connection
with the subject matter of this Lease pursuant to Landlord’s separate written agreement with
Landlord’s Broker. Such commission shall include an amount to be shared by Landlord’s Broker with
Tenant’s Broker to the extent that Tenant’s Broker and Landlord’s Broker have entered into a
separate agreement between themselves to share the commission paid to Landlord’s Broker by
Landlord. The provisions of this Section shall survive the expiration or earlier termination of
the Lease.




ARTICLE TWENTY-THREE

MORTGAGEE PROTECTION




23.01 SUBORDINATION AND ATTORNMENT



This Lease is and shall be expressly subject and subordinate at all times to (i) any ground or
underlying lease of the Real Property, now or hereafter existing, and all amendments, extensions,
renewals and modifications to any such lease, and (ii) the lien of any mortgage or trust deed now
or hereafter encumbering fee title to the Real Property and/or the leasehold estate under any such
lease, and all amendments, extensions, renewals, replacements and modifications of such mortgage or
trust deed and/or the obligation secured thereby, unless such ground lease or ground lessor, or
mortgage, trust deed or Mortgagee, expressly provides or elects that the Lease shall be superior to
such lease or mortgage or trust deed. If any such mortgage or trust deed is foreclosed (including
any sale of the Real Property pursuant to a power of sale), or if any such lease is terminated,
upon request of the Mortgagee or ground lessor, as the case may be, Tenant shall attorn to the
purchaser at the foreclosure sale or to the ground lessor under such lease, as the case may be,
provided, however, that such purchaser or ground lessor shall not be (i) bound by any payment of
Rent for more than one month in advance except payments in the nature of security for the
performance by Tenant of its obligations under this Lease; (ii) subject to any offset, defense or
damages arising out of a default of any obligations of any preceding Landlord; or (iii) bound by
any amendment or modification of this Lease made without the written consent of the Mortgagee or
ground lessor; or (iv) liable for any security deposits not actually received in cash by such
purchaser or ground lessor. This subordination shall be self-operative and no further certificate
or instrument of subordination need be required by any such Mortgagee or ground lessor. In
confirmation of such subordination, however, Tenant shall execute promptly any reasonable
certificate or instrument that Landlord, Mortgagee or ground lessor may request. Tenant hereby
constitutes Landlord as Tenant’s attorney-in-fact to execute such certificate or instrument for and
on behalf of Tenant upon Tenant’s failure to do so within fifteen (15) days of a request to do so.
Upon request by such successor in interest, Tenant shall execute and deliver reasonable instruments
confirming the attornment provided for herein.




23.02 MORTGAGEE PROTECTION



Tenant agrees to give any Mortgagee or ground lessor, by registered or certified mail, a copy of
any notice of default served upon the Landlord by Tenant, provided that prior to such notice Tenant
has received notice (by way of service on Tenant of a copy of an assignment of rents and leases, or
otherwise) of the address of such Mortgagee or ground lessor. Tenant further agrees that if
Landlord shall have failed to cure such default within the time provided for in this Lease, then
the Mortgagee or ground lessor shall have an additional thirty (30) days after receipt of notice
thereof within which to cure such default or if such default cannot be cured within that time, then
such additional notice time as may be necessary, if, within such thirty (30) days, any Mortgagee or
ground lessor has commenced and is diligently pursuing the remedies necessary to cure such default
(including commencement of foreclosure proceedings or other proceedings to acquire possession of
the Real Property, if necessary to effect such cure). Such period of time shall be extended by any
period within which such Mortgagee or ground lessor is prevented from commencing or pursuing such
foreclosure proceedings or other proceedings to acquire possession of the Real Property by reason
of Landlord’s bankruptcy. Until the time allowed as aforesaid for Mortgagee or ground lessor to
cure such defaults has expired without cure, Tenant shall have no right to, and shall not,
terminate this Lease on account of default. This Lease may not be modified or amended so as to
reduce the Rent or shorten the Term, or so as to adversely affect in any other respect to any
material extent the rights of the Landlord, nor shall this Lease be canceled or surrendered,
without the prior written consent, in each instance, of the ground lessor or the Mortgagee.




ARTICLE TWENTY-FOUR

NOTICES




     (a) All notices, demands or requests provided for or permitted to be given pursuant to this
Lease must be in writing and shall be personally delivered, sent by Federal Express or other
reputable overnight courier service, or mailed by first class, registered or certified United
States mail, return receipt requested, postage prepaid.



     (b) All notices, demands or requests to be sent pursuant to this Lease shall be deemed to have
been properly given or served by delivering or sending the same in accordance with this Section,
addressed to the parties hereto at their respective addresses listed in Sections 1.01(2) and (3).



26









 





     (c) Notices, demands or requests sent by mail or overnight courier service as described above
shall be effective upon deposit in the mail or with such courier service. However, the time period
in which a response to any such notice, demand or request must be given shall commence to run from
(i) in the case of delivery by mail, the date of receipt on the return receipt of the notice,
demand or request by the addressee thereof, or (ii) in the case of delivery by Federal Express or
other overnight courier service, the date of acceptance of delivery by an employee, officer,
director or partner of Landlord or Tenant. Rejection or other refusal to accept or the inability
to deliver because of changed address of which no notice was given, as indicated by advice from
Federal Express or other overnight courier service or by mail return receipt, shall be deemed to be
receipt of notice, demand or request sent. Notices may also be served by personal service upon any
officer, director or partner of Landlord or Tenant, and shall be effective upon such service.



     (d) By giving to the other party at least thirty (30) days written notice thereof, either
party shall have the right from time to time during the term of this Lease to change their
respective addresses for notices, statements, demands and requests, provided such new address shall
be within the United States of America.



ARTICLE TWENTY-FIVE

EXERCISE FACILITY



Tenant agrees to inform all employees of Tenant of the following: (i) the exercise facility is
available for the use of the employees of tenants of the Project only and for no other person; (ii)
use of the facility is at the risk of Tenant or Tenant’s employees, and all users must sign a
release; (iii) the facility is unsupervised; and (iv) users of the facility must report any needed
equipment maintenance or any unsafe conditions to the Landlord immediately. Landlord may
discontinue providing such facility at Landlord’s sole option at any time without incurring any
liability. As a condition to the use of the exercise facility, Tenant and each of Tenant’s
employees that uses the exercise facility shall first sign a written release in form and substance
acceptable to Landlord. Landlord may change the rules and/or hours of the exercise facility at any
time, and Landlord reserves the right to deny access to the exercise facility to anyone due to
misuse of the facility or noncompliance with rules and regulations of the facility. To the extent
permitted by Law, Tenant hereby indemnifies, and agrees to protect, defend and hold the Indemnitees
harmless, against any and all actions, claims, demands, liability, costs and expenses, including
attorneys’ fees and expenses for the defense thereof, arising from use of the exercise facility in
the Project by Tenant, Tenant’s employees or invitees. In case of any action or proceeding brought
against the Indemnitees by reason of any such claim, upon notice from Landlord, Tenant covenants to
defend such action or proceeding by counsel chosen by Landlord, in Landlord’s sole discretion.
Landlord reserves the right to settle, compromise or dispose of any and all actions, claims and
demands related to the foregoing indemnity.




ARTICLE TWENTY-SIX

MISCELLANEOUS




26.01 LATE CHARGES




     (a) The Monthly Base Rent, Rent Adjustments and Rent Adjustment Deposits shall be due when and
as specifically provided above. Except for such payments and late charges described below, which
late charge shall be due when provided below (without notice or demand), all other payments
required hereunder to Landlord shall be paid within ten (10) days after Landlord’s demand therefor.
All Rent and charges, except late charges, not paid when due shall bear interest from the date due
until the date paid at the Default Rate in effect on the date such payment was due.



     (b) In the event Tenant is more than ten (10) days late in paying any installment of Rent due
under this Lease, Tenant shall pay Landlord a late charge equal to five percent (5%) of the
delinquent installment of Rent. The parties agree that (i) such delinquency will cause Landlord to
incur costs and expenses not contemplated herein, the exact amount of which will be difficult to
calculate, including the cost and expense that will be incurred by Landlord in processing each
delinquent payment of rent by Tenant, and (ii) the amount of such late charge represents a
reasonable estimate of such costs and expenses and that such late charge shall be paid to Landlord
for each delinquent payment in addition to all Rent otherwise due hereunder. The parties further
agree that the payment of late charges and the payment of interest provided for in subparagraph (a)
above are distinct and separate from one another in that the payment of interest is to compensate
Landlord for its inability to use the money improperly withheld by Tenant, while the payment of
late charges is to compensate Landlord for its additional administrative expenses in handling and
processing delinquent payments.



     (c) Payment of interest at the Default Rate and/or of late charges shall not excuse or cure
any default by Tenant under this Lease, nor shall the foregoing provisions of this Article or any
such payments prevent Landlord from exercising any right or remedy available to Landlord upon
Tenant’s failure to pay Rent when due, including the right to terminate this Lease.



26.02 NO JURY TRIAL; VENUE; JURISDICTION



Each party hereto (which includes any assignee, successor, heir or personal representative of a
party) shall not seek a jury trial, hereby waives trial by jury, and hereby further waives any
objection to venue in the County in which the Project is located, and agrees and consents to
personal jurisdiction of the courts of the State of California, in any action or proceeding or
counterclaim brought by any party hereto against the other on any matter whatsoever arising out of
or in any way connected with this Lease, the relationship of Landlord





27









 







and Tenant, Tenant’s use or
occupancy of the Premises, or any claim of injury or damage, or the enforcement of any remedy under
any statute, emergency or otherwise, whether any of the foregoing is based on this Lease or on tort
law. No party will seek to consolidate any such action in which a jury has been waived with any
other action in which a jury trial cannot or has not been waived. It is the intention of the
parties that these provisions shall be subject to no exceptions. By execution of this Lease the
parties agree that this provision may be filed by any party hereto with the clerk or judge before
whom any action is instituted, which filing shall constitute the written consent to a waiver of
jury trial pursuant to and in accordance with Section 631 of the California Code of Civil
Procedure. No party has in any way agreed with or represented to any other party that the
provisions of this Section will not be fully enforced in all instances. The provisions of this
Section shall survive the expiration or earlier termination of this Lease.




26.03 DEFAULT UNDER OTHER LEASE



It shall be a Default under this Lease if Tenant or any Affiliate holding any other lease with
Landlord for premises in the Project defaults under such lease and as a result thereof such lease
is terminated or terminable.




26.04 OPTION



This Lease shall not become effective as a lease or otherwise until executed and delivered by both
Landlord and Tenant. The submission of the Lease to Tenant does not constitute a reservation of or
option for the Premises, but when executed by Tenant and delivered to Landlord, the Lease shall
constitute an irrevocable offer by Tenant in effect for fifteen (15) days to lease the Premises on
the terms and conditions herein contained.




26.05 TENANT AUTHORITY



Tenant represents and warrants to Landlord that it has full authority and power to enter into and
perform its obligations under this Lease, that the person executing this Lease is fully empowered
to do so, and that no consent or authorization is necessary from any third party. Landlord may
request that Tenant provide Landlord evidence of Tenant’s authority.




26.06 ENTIRE AGREEMENT



This Lease, the Exhibits and Riders attached hereto contain the entire agreement between Landlord
and Tenant concerning the Premises and there are no other agreements, either oral or written, and
no other representations or statements, either oral or written, on which Tenant has relied. This
Lease shall not be modified except by a writing executed by Landlord and Tenant.




26.07 MODIFICATION OF LEASE FOR BENEFIT OF MORTGAGEE



If Mortgagee of Landlord requires a modification of this Lease which shall not result in any
increased cost or expense to Tenant or in any other substantial and adverse change in the rights
and obligations of Tenant hereunder, then Tenant agrees that the Lease may be so modified.




26.08 EXCULPATION



Tenant agrees, on its behalf and on behalf of its successors and assigns, that any liability or
obligation of Landlord in connection with this Lease shall only be enforced against Landlord’s
equity interest in the Property up to a maximum of Five Million Dollars ($5,000,000.00) and in no
event against any other assets of the Landlord, or Landlord’s officers or directors or partners,
and that any liability of Landlord with respect to this Lease shall be so limited and Tenant shall
not be entitled to any judgment in excess of such amount.




26.09 ACCORD AND SATISFACTION



No payment by Tenant or receipt by Landlord of a lesser amount than any installment or payment of
Rent due shall be deemed to be other than on account of the amount due, and no endorsement or
statement on any check or any letter accompanying any check or payment of Rent shall be deemed an
accord and satisfaction, and Landlord may accept such check or payment without prejudice to
Landlord’s right to recover the balance of such installment or payment of Rent or pursue any other
remedies available to Landlord. No receipt of money by Landlord from Tenant after the termination
of this Lease or Tenant’s right of possession
of the Premises shall reinstate, continue or extend the Term. Receipt or acceptance of payment
from anyone other than Tenant, including an assignee of Tenant, is not a waiver of any breach of
Article Ten, and Landlord may accept such payment on account of the amount due without prejudice to
Landlord’s right to pursue any remedies available to Landlord.




26.10 LANDLORD’S OBLIGATIONS ON SALE OF BUILDING



In the event of any sale or other transfer of the Building, Landlord shall be entirely freed and
relieved of all agreements and obligations of Landlord hereunder accruing or to be performed after
the date of such sale or transfer, and any remaining liability of Landlord with respect to this
Lease shall be limited to Five Million Dollars ($5,000,000.00) and Tenant shall not be entitled to
any judgment in excess of such amount.






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26.11 BINDING EFFECT



Subject to the provisions of Article Ten, this Lease shall be binding upon and inure to the benefit
of Landlord and Tenant and their respective heirs, legal representatives, successors and permitted
assigns.




26.12 CAPTIONS



The Article and Section captions in this Lease are inserted only as a matter of convenience and in
no way define, limit, construe, or describe the scope or intent of such Articles and Sections.




26.13 TIME; APPLICABLE LAW; CONSTRUCTION



Time is of the essence of this Lease and each and all of its provisions. This Lease shall be
construed in accordance with the Laws of the State of California. If more than one person signs
this Lease as Tenant, the obligations hereunder imposed shall be joint and several. If any term,
covenant or condition of this Lease or the application thereof to any person or circumstance shall,
to any extent, be invalid or unenforceable, the remainder of this Lease, or the application of such
term, covenant or condition to persons or circumstances other than those as to which it is held
invalid or unenforceable, shall not be affected thereby and each item, covenant or condition of
this Lease shall be valid and be enforced to the fullest extent permitted by Law. Wherever the
term “including” or “includes” is used in this Lease, it shall have the same meaning as if followed
by the phrase “but not limited to”. The language in all parts of this Lease shall be construed
according to its normal and usual meaning and not strictly for or against either Landlord or
Tenant.




26.14 ABANDONMENT



In the event Tenant vacates or abandons the Premises but is otherwise in compliance with all the
terms, covenants and conditions of this Lease, Landlord shall (i) have the right to enter into the
Premises in order to show the space to prospective tenants, (ii) have the right to reduce the
services provided to Tenant pursuant to the terms of this Lease to such levels as Landlord
reasonably determines to be adequate services for an unoccupied premises and (iii) during the last
six (6) months of the Term, have the right to prepare the Premises for occupancy by another tenant
upon the end of the Term. Tenant expressly acknowledges that in the absence of written notice
pursuant to Section 11.02(b) or pursuant to California Civil Code Section 1951.3 terminating
Tenant’s right to possession, none of the foregoing acts of Landlord or any other act of Landlord
shall constitute a termination of Tenant’s right to possession or an acceptance of Tenant’s
surrender of the Premises, and the Lease shall continue in effect.




26.15 LANDLORD’S RIGHT TO PERFORM TENANT’S DUTIES



If Tenant fails timely to perform any of its duties under this Lease, Landlord shall have the right
(but not the obligation), to perform such duty on behalf and at the expense of Tenant without prior
notice to Tenant, and all sums expended or expenses incurred by Landlord in performing such duty
shall be deemed to be additional Rent under this Lease and shall be due and payable upon demand by
Landlord.




26.16 SECURITY SYSTEM



Landlord shall not be obligated to provide or maintain any security patrol or security system.
Landlord shall not be responsible for the quality of any such patrol or system which may be
provided hereunder or for damage or injury to Tenant, its employees, invitees or others due to the
failure, action or inaction of such patrol or system.




26.17 NO LIGHT, AIR OR VIEW EASEMENTS



Any diminution or shutting off of light, air or view by any structure which may be erected on lands
of or adjacent to the Project shall in no way affect this Lease or impose any liability on
Landlord.




26.18 RECORDATION



Neither this Lease, nor any notice nor memorandum regarding the terms hereof, shall be recorded by
Tenant. Any such unauthorized recording shall be a Default for which there shall be no cure or
grace period.
Tenant agrees to execute and acknowledge, at the request of Landlord, a memorandum of this
Lease, in recordable form.




26.19 SURVIVAL



The waivers of the right of jury trial, the other waivers of claims or rights, the releases and the
obligations of Tenant under this Lease to indemnify, protect, defend and hold harmless Landlord
and/or Indemnitees shall survive the expiration or termination of this Lease, and so shall all
other obligations or agreements which by their terms survive expiration or termination of the
Lease.






29









 








26.20 EXHIBITS OR RIDERS



All exhibits, riders and/or addenda referred to in this Lease as an exhibit, addenda or rider
hereto or attached hereto, are hereby incorporated into and made a part of this Lease.



IN WITNESS WHEREOF, this Lease has been executed as of the date set forth in Section 1.01(4)
hereof.




	 	 	 	 	 	 	 
	TENANT:	 	LANDLORD:
	 
	 	 	 	 	 	 
	Genitope Corporation,	 	Metropolitan Life Insurance Company,
	a Delaware corporation	 	a New York corporation
	 
	 	 	 	 	 	 
	By

	 	/s/ John M. Vuko	 	By	 	/s/ Joel R. Redman
	

	 	 
	 	 	 	 
	 
	 	John M. Vuko	 	 	 	Joel R. Redman
	

	 	 
	 	 	 	 
	

	 	Print name
	 	 	 	Print name
	Its

	 	Vice President	 	Its	 	Assistant Vice President
	

	 	 
	 	 	 	 
	(Chairman of Board, President or Vice President)	 	 	 	 
	 
	 	 	 	 	 	 
	By
	 	/s/ Laura R. Woodhead	 	 	 	 
	

	 	 	 	 	 	 
	 
	 	Laura R. Woodhead	 	 	 	 
	

	 	 	 	 	 	 
	

	 	Print name	 	 	 	 
	Its
	 	Secretary	 	 	 	 
	

	 	 	 	 	 	 
	(Secretary, Assistant Secretary, CFO or Assistant Treasurer)	 	 






30









 






EXHIBIT A

PLAN OF PREMISES




Exhibit A - Page 1

[Diagram of leased premises appears on this page.]










 








EXHIBIT B

WORKLETTER AGREEMENT



There is no Landlord Work or Tenant Work in connection with this Lease, and this exhibit is
intentionally omitted.






Exhibit B - Page 1








 








EXHIBIT C

SITE PLAN OF PROJECT






Exhibit C - Page 1


[Illustration of Site Plan appears on this page.]








 









EXHIBIT D

PERMITTED HAZARDOUS MATERIAL



Permitted Hazardous Material includes insignificant amounts of substances listed below so long as
(i) such substances are maintained only in such quantities as are reasonably necessary for Tenant’s
operations in the Premises, or such other specific quantity limit as specified below, (ii)
such substances are used strictly in accordance with the manufacturers’ instructions therefor and
all applicable laws, (iii) such substances are not disposed of in or about the Building or the
Project in a manner which would constitute a release or discharge thereof, and (iv) all such
substances are removed from the Building and the Project by Tenant no later than the Termination
Date.




	 	 	 
	Type:	 	Quantity:
	Substances typically found or used in general office applications, to
the extent the Premises is used for general offices

	 	as noted above





Complete Chemical Inventory
of Genitope Corporation, including those substances which may be
considered hazardous.




	 	 	 
	Reagent	 	Quantity
	“Big Dye”

	 	< 500 ml.
	0.5 M MgSO4
	 	 
	0.5M EDTA
	 	 
	0.8% LE/TAE/EtBr gel
	 	 
	1 M Imidazol
	 	 
	1.2% LE/TAE/EtBr gel
	 	 
	1.8% LE/TAE/EtBr gel
	 	 
	10 mM Tris Cl
	 	 
	10% Bleach

	 	<10 gal.
	100 base pair ladder
	 	 
	100% Ethanol

	 	< 20.0 Litre
	100% IPA

	 	< 10.0 gal.
	1000 base pair ladder

	 	< 25 ml.
	100mM CoCl2
	 	 
	10mM GeneAmp dNTP blend
	 	 
	10mM Tris Cl
	 	 
	10x Carbonate Buffer
	 	 
	10X PCR buffer for Taq
	 	 
	10X PCR buffer II with MgCl2
	 	 
	10X Sodium Citrate
	 	 
	1M CaCl2
	 	 
	1M KCl
	 	 
	1M MgCl2
	 	 
	1M MOPS
	 	 
	1M Na2CO3
	 	 
	1M Na-cacodylic acid in Tris-Cl
	 	 
	1M NaHCO3
	 	 
	1M TRIS Cl ph7.8
	 	 
	1M TRIS Cl ph8.0
	 	 
	1M TRIS Cl ph8.5
	 	 
	1M NaCl
	 	 
	1X Trypsin-EDTA Solution
	 	 
	2% BSA/DPBS
	 	 
	2% BSA/PBS
	 	 






 







Exhibit D - Page 1 of 9







 






	 	 	 
	Reagent	 	Quantity
	2.2% LE/TAE/EtBr gel
	 	 
	2.5% MetaPhore/TBE gel
	 	 
	20X MOPS Running Buffer
	 	 
	25mM Mg(OAc)2 solution
	 	 
	2-Mercaptaethanol

	 	< 1.0 Litre
	2mM dGTP-Na in H2O
	 	 
	2 propanol

	 	<2.5L
	3 M NaOAc
	 	 
	3 M Sodium Acetate
	 	 
	3M Tris
	 	 
	4X SAF
	 	 
	5% Nonfat Milk/DPBS

	 	<500 ml
	50 base pair ladder

	 	< 25 ml.
	50X TAE
	 	 
	5mM CoCl2
	 	 
	5X TBE
	 	 
	5X XL Chelating Buffer
	 	 
	5X XL RT buffer for RT-PCR
	 	 
	70% Ethanol

	 	< 15 gal.
	95% Ethanol

	 	< 15 gal.
	ABTS

	 	< 25 ml.
	ABTS

	 	< 25 ml.
	Acetic Acid, glacial

	 	< 4.0 gal.
	Acetone

	 	< 1gal.
	Acetone

	 	< 1gal.
	Agar Strips Hycon TC

	 	< 500 ml.
	Alcare

	 	< 500 ml.
	Algicide

	 	< 500 ml.
	Ammonium Acetate

	 	<500 g
	Ammonium Bifluoride, flake

	 	< 125 ml.
	Ammonium Hydroxide
	 	 
	AmpliTaq with MgCl2 and 10X rxn buffer II
	 	 
	Anti-Rat IgG Heavy and Light
	 	 
	ATCC Mycoplasma Detection Kit
	 	 
	Azaserine

	 	<1 L




Exhibit D - Page 2 of 9


 









 






	 	 	 
	Reagent	 	Quantity
	Bacto Agar

	 	< 500 g
	Bacto EC Medium

	 	< 500 g
	Bacto Nzcym broth

	 	< 500 g
	Bacto Sabouraud Dextrose Agar

	 	< 500 g
	BCA Kit
	 	 
	BCA Protein Assay Kit
	 	 
	Bio-Rad Ready Gels
	 	 
	BIS TRIS
	 	 
	Bis-Tris
	 	 
	Bleach

	 	< 5 gal.
	Boric Acid Granular

	 	< 3Kg
	Brilliant Blue R

	 	< 5 grms
	Brilliant Blue R 250

	 	< 5 grms
	Bromophenol Blue

	 	< 25 grms
	BSA

	 	< 200 grms
	BSA

	 	< 200 grms
	Buffer (Biphthalate) pH 4

	 	< 250 grms
	Buffer (Borate) pH 7

	 	< 250 grms
	Buffer (Phosphate) pH 10

	 	< 250 grms
	Buffer C1
	 	 
	Buffer P1
	 	 
	Buffer P3
	 	 
	Cacodylic Acid

	 	< 15 grms
	Calcium Chloride Dihydrate

	 	< 500 ml.
	CCM-I
	 	 
	Cell Culture Media

	 	< 5.0 gal.
	Cellgro-FREE Media

	 	< 5.0 gal
	Chloroform

	 	< 2.0 gal,
	CiDecon

	 	< 2.0 gal.
	Clear Bath Algicide

	 	< 16 oz.
	Cloned pfuDNA polymerase
	 	 
	Cloned pfuDNA Polymerase rxn buffer
	 	 
	Cobalt Chloride

	 	<100 grms
	Cobalt Chloride rxn buffer
	 	 
	Coomasie Blue Staining Solution

	 	< 3.0 L




Exhibit D - Page 3 of 9


 









 






	 	 	 
	Reagent	 	Quantity
	Coomassie Plus Protein Assay Reagent

	 	< 3.0 L
	CyQuant
	 	 
	DEPC
	 	 
	Destaining Solution
	 	 
	Dextrose Anhydrous, Powder

	 	< 500 grms
	dGTP, Na-salt, PCR grade rxn buffer

	 	< 500 grms
	Diethyl Pyrocarbonate

	 	< 1.0 Litre
	Dimethy Sulfoxide

	 	< 3.0 L
	DMEM
	 	 
	DMSO

	 	< 2.5 Litre
	DMSO

	 	< 2.5 Litre
	DNA H2O
	 	 
	dNTP mix 10mM
	 	 
	dPBS
	 	 
	Dulbecco’s PBS
	 	 
	EDTA, Disodium Salt, Dihydrate, Crystal
	 	 
	EGTA

	 	< 500 grms
	ELISA Wash Buffer 10X

	 	<100 grms
	Ethanol (200 proof)

	 	< 15 gal
	Ethidium Bromide

	 	< 500 ml.
	Ethylene Glycol

	 	< 500 ml.
	EZ-Link Sulfo-NHS-LC-Biotin
	 	 
	Fetal Bovine Serum (FBS), characterized
	 	 
	Fetal Bovine Serum (FBS), dialyzed
	 	 
	Ferric Citrate

	 	<100 grms
	Ferric Nitrate

	 	<100 grms
	Ferrous Sulfate

	 	<250 grms
	Ficoll 400

	 	<100 grms
	Ficoll-Paque

	 	< 1.0 Litre
	Fluorescien isothyocyanate

	 	<100 grms
	Formaldehyde (37%)

	 	<600 ml
	FuGENE
	 	 
	Fyrite 7% CO2

	 	< 1.0 Litre
	Fyrite CO2 indicator refill

	 	< 1.0 Litre
	Gel Drying Solution

	 	< 9.0 Litre




Exhibit D - Page 4 of 9


 









 






	 	 	 
	Reagent	 	Quantity
	Gel Extraction Kit (buffer EB,QG,PE)

	 	< 250 ml.
	Gelatin

	 	< 100 grms
	GeneAmp 25mM Mn(OAc)2

	 	< 200ml
	Gentamicin

	 	< 500 ml.
	Glucosamine
	 	 
	Glutaraldehyde

	 	< 1.0 Litre
	Glutaraldehyde (25%)

	 	< 1.0 Litre
	Glycerol
	 	 
	Glycine
	 	 
	Goat Anti-Human IgG
	 	 
	Goat anti-human IgG gamma chain
	 	 
	Goat F(ab’)2 anti-human kappa light chain
	 	 
	Goat F(ab’)2 anti-human lambda light antibody
	 	 
	Growth check, microbial suspensions
	 	 
	Guanidine
	 	 
	Guanidium Isothyocyanate

	 	< 1.0 Litre
	Hand Soap
	 	 
	HEPES Free Acid

	 	< 500 grms
	Hi Trap Lectin Test Kit

	 	< 10 ml.
	High Pure Plasmid Isolation Kit

	 	< 500 ml.
	Hightrap G Protein

	 	< 500 ml.
	Hightrap SP

	 	< 500 ml.
	Horseradish Peroxidase Avidin D

	 	< 500 ml.
	Horseradish Peroxidase Substrate Kit

	 	< 500 ml.
	Human IgG Kappa

	 	< 4 micro grms
	Human IgG Lambda

	 	< 200 micro grms
	Hybridoma SFM

	 	< 500 ml.
	Hydrochloric Acid

	 	< 1.0 Litre
	Hydrocyanic Acid

	 	< 2.5 Litre
	Hydrogen Peroxide 30%

	 	< 500 grms
	Hypoxanthine

	 	< 25 grms
	IEF Anode (lower) buffer
	 	 
	IEF Cathode Buffer pH 3-10
	 	 
	IEF Sample Buffer pH 3-10
	 	 
	Imidazole

	 	< 500 grms




Exhibit D - Page 5 of 9


 









 






	 	 	 
	Reagent	 	Quantity
	Imject Mariculture KLH in PBS

	 	< 100 mgrms
	IPA

	 	< 4 gallons
	IPA (100 %)

	 	< 4 gallons
	Isoamyl Alcohols
	 	 
	Isocetyl Alcohol
	 	 
	Isopropyl Alcohol (70%)

	 	< 2.0 gal.
	ISP Medium 2
	 	 
	Kanamycin

	 	< 5.0 gal
	Kappa Control, characterized in-house IgG3 kappa conjugated to KLH
	 	 
	Kappa Standard
	 	 
	Kappa Standard Antibody, characterized in-house purified patient antibody
	 	 
	Keyhole Limpet Hemocyanin (KLH)
	 	 
	Kinetic Endotoxin Detection LAL Kinetic QCL
	 	 
	Lactose, monohydrate

	 	< 100 grms
	Laemmli Sample Buffer

	 	< 125 ml.
	Lambda Control, characterized in-house IgG3 lambda conjugated to KLH
	 	 
	Lambda Standard
	 	 
	Lambda Standard Antibody, characterized in-house purified patient antibody
	 	 
	LB Media
	 	 
	L-Glutamine
	 	 
	Liquid Nitrogen
	 	 
	Lithium Chloride, Granular

	 	< 500 grms
	Loading Dye
	 	 
	LopHene

	 	< 4 gallons
	Macro-Prep High Q Support

	 	< 200 ml.
	Magnesium Acetate

	 	< 500 grms
	Magnesium Chloride, 6-Hydrate, Crystal

	 	< 500 grms
	Magnesium Sulfate

	 	< 1.0 Kgram
	Maltose
	 	 
	Manganese Chloride AR
	 	 
	Mannopyranoside
	 	 
	MEM Amino Acids
	 	 
	Mercaptoethanol
	 	 
	MetaPhor Agarose
	 	 
	Methanol

	 	< 10.0 L




Exhibit D - Page 6 of 9


 









 






	 	 	 
	Reagent	 	Quantity
	Methotrexate

	 	< 100 ml.
	Methyl Mannopyranoside
	 	 
	MilliQH20
	 	 
	Molecular Weight Standard
	 	 
	Monoethanolamine

	 	< 500 ml.
	MOPS

	 	< 1.0 Kgram
	Mycoplamsa Kit
	 	 
	NaCl, 0.9%
	 	 
	NanoOrange Protein Kit
	 	 
	NaOH (0.1, 1, 10 N)

	 	< 200 ml.
	Nickel Sulfate

	 	< 250 grms
	Ni-NTA Agarose
	 	 
	Ni-NTA Resin

	 	< 50 ml
	NiSieve GTG Agarose

	 	< 500 ml.
	Nonfat Dry Milk

	 	< 500 grms
	NuPAGE Bis-Tris gels 4-12%
	 	 
	NuPAGE Bis-Tris Gels, 4-12%
	 	 
	NuPAGE MES SDS Running Buffer
	 	 
	NuPAGE MOPS SDS Running Buffer
	 	 
	NuPAGE Sample Reducing Agent
	 	 
	NuPAGE Transfer Buffer
	 	 
	NuPAGE Tris-Acetate Gels, 3-8%
	 	 
	NuSieve GTG agarose
	 	 
	O-syl

	 	< 1 Gal.
	PBS

	 	< 1 Gal.
	PCR Purification Kit (buffer EB,PB,PE)
	 	 
	Pepsin

	 	< 100 grms
	Phenol, equilibrated

	 	< 100 grms
	Phosphate Buffered Saline (PBS)

	 	< 5.0 Litre
	Phosphoric Acid

	 	< 0.25 Litre
	Pluronic L 121

	 	< 1.0 Kgram
	Polyoxyethylenesorbital Monolaurate

	 	< 100 ml.
	Polysorbate 80
	 	 
	Potassium Acetate, granular

	 	< 500 grms
	Potassium Chloride, Crystal

	 	< 500 grms




Exhibit D - Page 7 of 9


 









 






	 	 	 
	Reagent	 	Quantity
	Potassium Hydroxide, Pellets

	 	< 1 Kgrms
	Potassium Phosphate
	 	 
	Precast Polyacrilamide Gel (Mini)
	 	 
	Pre-diluted Protein Assay (BGG)
	 	 
	Protein A Elution Buffer
	 	 
	Protein A Wash Buffer
	 	 
	Protein G Column
	 	 
	Protein G Sepharose for Fast Flow

	 	< 5.0 ml.
	Pyrosperse
	 	 
	Qiagen Protease
	 	 
	QIAquick PCR Purification Kit
	 	 
	Quanti-cult
	 	 
	RNA H2O
	 	 
	RNAzol B

	 	< 1.5 Litre
	RNeasy Maxi Kit

	 	< 2 Litre
	RNeasy Midi Kit

	 	< 2 Litre
	RNeasy Mini Kit

	 	< 2 Litre
	Robane

	 	< 2.5 Kgrms
	RO Water

	 	< 20 gallons
	RPMI 1640
	 	 
	rTth DNA polymerase with buffer pack
	 	 
	rTth XL DNA polymerase with buffer pack
	 	 
	Sabouraud Dextrose Agar w/ Lecithin and Polysorbate 80
	 	 
	Saline (0.9%)
	 	 
	Sargramostim Leukine
	 	 
	SeaKem LE Agarose
	 	 
	SeaPlaque GTG Agarose
	 	 
	SeaPlaque GTG Agarose
	 	 
	SFX-MAB
	 	 
	Silver Nitrate
	 	 
	Silver Xpress Silver Staining Kit
	 	 
	Sodium Acetate, Trihydrate, Crystal

	 	< 1Kgram
	Sodium Azide

	 	< 100 grms
	Sodium Bicarbonate, Powder

	 	< 1 Kgrms
	Sodium Carbonate, Anyhdrous, Granular

	 	< 1 Kgrms





Exhibit D - Page 8 of 9



 









 






	 	 	 
	Reagent	 	Quantity
	Sodium Carbonate, Monohydrate, Crystal

	 	< 500 gams
	Sodium Chloride, Crystals

	 	< 1.0 Kgrms
	Sodium Citrate, Dihydrate, Granular

	 	< 500 ml.
	Sodium Dodecyl Sulfate

	 	< 500 ml.
	Sodium Hydroxide

	 	< 20 Liters
	Sodium Nitroprusside

	 	< 25 grms
	Sodium Phosphate, Dibasic, 7-Hydrate, Crystal

	 	< 500 gams
	Sodium Phosphate, Monobasic, Monohydrate, Crystal
	 	 
	Sodium Pyruvate
	 	 
	Superblock Blocking Buffer in PBS
	 	 
	TE Buffer
	 	 
	Terminal Transferase
	 	 
	TFBI
	 	 
	TFBII
	 	 
	Thymidine
	 	 
	TMB Microwell Peroxidase Substrate
	 	 
	Trace Klean
	 	 
	Tricine

	 	< 250 grms
	Tris Base

	 	< 3 Kgrms
	TRIS Hydrochloride

	 	< 500 grms
	Tris-Base
	 	 
	Triton X-100

	 	< 500 ml.
	Trypan blue
	 	 
	Trypsin
	 	 
	Tryptic Soy Broth
	 	 
	Trypticase Soy Agar
	 	 
	Trypticase Soy Agar Plates

	 	< 500 ml.
	Trypticase Soy Agar Slants

	 	< 500 ml.
	Tryptone Peptone

	 	< 500 ml.
	Uridine

	 	< 1 gram
	WFI
	 	 
	Yeast Extract
	 	 
	Zero Blunt TOPO PCR Cloning Kit

	 	< 1 ml






[OTHER TYPES & QUANTITIES OF HAZARDOUS MATERIAL, IF ANY, SHALL BE LISTED BY TENANT & SUBMITTED TO
LANDLORD FOR REVIEW]


Exhibit D - Page 9 of 9










 








RIDER 1




Intentionally omitted.





Rider 1 - Page 1 of 1









 








RIDER 2

ADDITIONAL PROVISIONS




     This Rider 2 (“Rider”) is attached to and a part of a certain Lease dated as of March 10,
2005, executed concurrently herewith by Metropolitan Life Insurance Company, a New York
corporation, as Landlord, and Genitope Corporation, a Delaware corporation (for purposes of this
Rider, “Genitope”), as Tenant, for the Premises as described therein (the “Lease”).



SECTION 1. DEFINED TERMS; FORCE AND EFFECT



Capitalized terms used in this Rider shall have the same meanings set forth in the Lease except as
otherwise specified herein and except for terms capitalized in the ordinary course of punctuation.
This Rider forms a part of the Lease. Should any inconsistency arise between this Rider and any
other provision of the Lease as to the specific matters which are the subject of this Rider, the
terms and conditions of this Rider shall control.




SECTION 2. CONDITION OF PREMISES; DELIVERY; COMMENCEMENT DATE




     2.1. AS-IS Condition. Tenant hereby leases and Landlord shall deliver the Premises to
Tenant in its AS IS condition, without any express or implied representations or warranties of any
kind by Landlord, its brokers, manager or agents, or the employees of any of them regarding the
Premises; and Landlord shall not have any obligation to construct or install any tenant
improvements or alterations or to pay for any such construction or installation. There is no
Tenant Work or Landlord Work in connection with this Lease.



     2.2. Prior Sublease; Certain Restoration Obligations; Delivery. Tenant and Landlord
acknowledge that (i) Tenant presently occupies all of the Premises as Subtenant pursuant to a
Sublease from Openwave Systems, Inc. (“Openwave”) as Sublandlord, dated as of July 12, 2001, to
which Landlord consented by that certain Consent Letter dated as of August 16, 2001 by and between
Landlord, Genitope and Openwave, as such Sublease was amended by the First Amendment to Sublease
dated as of November, 2002, to which Landlord consented by that certain Consent Letter dated as of
January 9, 2003 by and between Landlord, Genitope and Openwave (the Sublease, as amended, is
referred to as the “Prior Sublease”); and (ii) the term of the underlying prime lease between
Openwave and Landlord will terminate March 11, 2005 and the Prior Sublease will terminate no later
than March 11, 2005. Upon such termination, Landlord shall not require Tenant or Openwave to
remove any of the existing improvements or alterations installed pursuant to the Prior Sublease and
Openwave lease in the Premises and to restore the Premises to its condition prior to such
installation, provided however: (a) upon the expiration or earlier termination of this Lease,
Landlord reserves the right to require removal of any improvements containing Hazardous Material;
(b) no later than the expiration or earlier termination of any subleases or agreements by which
Tenant occupies space adjoining the Premises, Tenant, at its own cost and expense, shall close and
seal any doorway, passageway or opening from the Premises to such adjoining space and rebuild or
restore the demising wall across or over such space to like kind and quality of the existing
demising wall between the Premises and adjoining space, and in compliance with all applicable Laws;
(c) upon the expiration or earlier termination of this Lease, Landlord reserves the right to
require removal of trade fixtures, including cabling and wiring; and (d) upon the expiration or
earlier termination of this Lease, Landlord reserves the right to require removal of any laboratory
improvements and restoration of the affected space to its condition prior to installation of the
laboratory improvements. Possession of the Premises for purposes of this Lease is hereby
acknowledged and agreed to be delivered to Tenant by Landlord as of the date of this Lease.
Immediately after March 11, 2005, Tenant shall continue in occupancy of the Premises hereunder.
The Commencement Date of the Term of this Lease shall be March 12, 2005, as set forth in Section
1.01 at the beginning of this Lease.



SECTION 3. MONUMENT SIGNAGE.




     (a) Grant of Right. Notwithstanding any provision of Section 6.06 of the Lease to the
contrary, so long as Tenant is in continuous operation at and occupancy of the entire Premises,
Tenant shall have the right to place Tenant identification on one line of the existing, exterior
monument sign for the Building in which the Premises are located, subject to the terms and
conditions set forth in this Section (“Exterior Sign Right”).



     (b) General Conditions & Requirements. The size, type, style, materials, color,
method of installation and exact location of the sign, and the contractor for and all work in
connection with the sign, contemplated by this Section shall (i) be subject to Tenant’s compliance
with all applicable laws, regulations and ordinances and with any covenants, conditions and
restrictions of record which affect the Property; (ii) be subject to Tenant’s compliance with all
requirements of Landlord’s current Project signage criteria at the time of installation; (iii) be
consistent with the design of the Building and the Project; (iv) be further subject to Landlord’s
prior written consent. Tenant shall, at its sole cost and expense, procure, install, maintain in
first class appearance and condition, and remove such sign.



     (c) Removal & Restoration. Upon the expiration or termination of the Exterior Sign
Right, but in no event later than the expiration of the Term or earlier termination of the Lease,
Tenant shall, at its sole cost and expense, remove such sign and shall repair and restore the area
in which the sign was located to its condition prior to installation of such sign.



     (d) Right Personal. The Exterior Sign Right under this Section is personal to
Genitope and may not be used by, and shall not be transferable or assignable (voluntarily or
involuntarily) to any person or entity.



     SECTION 4. OPTION TO EXTEND.



     (a) Landlord hereby grants Tenant two (2) consecutive options (individually an “Option” and
collectively the “Options”) to extend the initial Term of the Lease for an additional period of six
(6) months per Option (such



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period may be referred to as the “Option Term”), as to the entire Premises as it may then exist,
upon and subject to the terms and conditions of this Section (the “Option To Extend”), and provided
that at the time of exercise of each option: (i) Tenant must be in continuous operation at and in
occupancy of the entire Premises; and (ii) there has been no material adverse change in Tenant’s
financial position from such position as of the date of execution of the Lease, as certified by
Tenant’s independent certified public accountants, and as supported by Tenant’s certified financial
statements, copies of which shall be delivered to Landlord with Tenant’s written notice exercising
its option hereunder. Without limiting the generality of the foregoing, Landlord may reasonably
conclude there has been a material adverse change if Tenant’s independent certified public
accountants do not certify there has been no such change.




     (b) Tenant’s election (the “Election Notice”) to exercise the Option To Extend must be in
writing and given to Landlord: (i) to exercise the first Option, no earlier than the date which is
nine (9) months prior to, and no later than the date which is six (6) months prior to, the
Expiration Date of the initial Term; and (ii) to exercise the second Option, no earlier than the
date which is three (3) months prior to, and no later than the date which is, the Expiration Date
of the initial Term. If Tenant either fails or elects not to exercise the then applicable Option
to Extend by not timely giving its Election Notice, then such Option to Extend shall be null and
void. Further, the second Option shall be null and void if the first Option is not validly
exercised or is waived, revoked or terminated as provided below after any exercise.



     (c) Each Option Term shall commence immediately after the expiration of the preceding initial
Term or Option Term, as applicable. Tenant’s leasing of the Premises during the Option Term shall
be upon and subject to the same terms and conditions contained in the Lease except that: (i) for
the first Option Term the Monthly Base Rent shall increase to a monthly rate equal to One and
10/100 Dollars ($1.10) per square foot of Rentable Area of the Premises and for the second Option
Term shall increase to a monthly rate equal to One and 15/100 Dollars ($1.15) per square foot of
Rentable Area of the Premises (and otherwise, during each Option Term Tenant shall continue to pay
Rent Adjustments, all other Rent and all other charges pursuant to the Lease and Tenant shall
continue to pay directly the utility or service provider for all utilities or services which Tenant
is to obtain directly pursuant to other provisions of the Lease); (ii) the Security Deposit shall
be increased no later than thirty (30) days before the Expiration Date of the initial Term or first
Option Term, as applicable, to equal two hundred percent (200%) of the sum of the Monthly Base Rent
and monthly Rent Adjustment Deposit payable for the following Option Term; and (iii) Tenant shall
accept the Premises in its “AS-IS” condition without any obligation of Landlord to repaint,
remodel, repair, improve or alter the Premises or to provide Tenant any allowance therefor. If
Tenant timely and properly exercises the Option To Extend, references in the Lease to the Term
shall be deemed to mean the initial Term as extended by the applicable Option Term unless the
context clearly requires otherwise.



     (d) This Option to Extend is personal to Genitope and may not be used by, and shall not be
transferable or assignable (voluntarily or involuntarily) to any person or entity.



     (e) Upon the occurrence of any of the following events, Landlord shall have the option,
exercisable at any time prior to commencement of the Option Term, to terminate all of the
provisions of this Section with respect to the Option to Extend, with the effect of canceling and
voiding any prior or subsequent exercise so this Option to Extend is of no force or effect:



          (i) Tenant’s failure to timely exercise the Option to Extend in accordance with the
provisions of this Section.



          (ii) The existence at the time Tenant exercises the Option to Extend or at the commencement
of the Option Term of any default on the part of Tenant under the Lease or of any state of facts
which with the passage of time or the giving of notice, or both, would constitute such a default.



          (iii) Tenant’s third default under the Lease prior to the commencement of the Option Term,
notwithstanding that all such defaults may subsequently be cured.



     (f) Without limiting the generality of any provision of the Lease, time shall be of the
essence with respect to all of the provisions of this Section.



     IN WITNESS WHEREOF, the parties hereto have executed this Rider 2 as of the date first set
forth in the Lease.



	 	 	 	 	 	 	 
	TENANT:	 	LANDLORD:
	 
	 	 	 	 	 	 
	Genitope Corporation,	 	Metropolitan Life Insurance Company,
	a Delaware corporation	 	a New York corporation
	 
	 	 	 	 	 	 
	By

	 	/s/ John M. Vuko	 	By	 	/s/ Joel R. Redman
	

	 	 
	 	 	 	 
	 
	 	John M. Vuko	 	 	 	Joel R. Redman
	

	 	 
	 	 	 	 
	

	 	Print name
	 	 	 	Print name
	Its

	 	Vice President	 	Its	 	Assistant Vice President
	

	 	 
	 	 	 	 
	(Chairman of Board, President or Vice President)	 	 	 	 
	 
	 	 	 	 	 	 
	By
	 	/s/ Laura R. Woodhead	 	 	 	 
	

	 	 	 	 	 	 
	 
	 	Laura R. Woodhead	 	 	 	 
	

	 	 	 	 	 	 
	

	 	Print name	 	 	 	 
	Its
	 	Secretary	 	 	 	 
	

	 	 	 	 	 	 
	(Secretary, Assistant Secretary, CFO or Assistant Treasurer)	 	 










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