Exhibit 10.13














TRIPLE
NET SPACE LEASE




(MULTI-TENANT)









between




MT
SPE, LLC,


a
Delaware limited liability company,




as




LANDLORD




and




RAMBUS
INC.,


a
Delaware
corporation,




as




TENANT




for




PREMISES




At





Moffett
Towers





1040
Enterprise Way




SUNNYVALE,
CALIFORNIA











Table
      of ContentPageARTICLE
      I SUMMARY OF BASIC LEASE
      INFORMATION
            1ARTICLE
      II PREMISES
            3Section
      2.01
            Demise
      of Premises
            3Section
      2.02
            Common
      Area
            3Section
      2.03
            Parking
            4Section
      2.04
            Construction
            5ARTICLE
      III TERM
            8Section
      3.01
            Lease
      Term
            8Section
      3.02
            Option
      to Extend
            8Section
      3.03
            Early
      Termination
      Option
            10ARTICLE
      IV RENT; TRIPLE NET
      LEASE
            11Section
      4.01
            Base
      Rent
            11Section
      4.02
            Abatement
      of Base
      Rent
            11Section
      4.03
            Payment
      of
      Rent
            11Section
      4.04
            Additional
      Rent
            11Section
      4.05
            Operating
      Expenses; Insurance Expenses; Real Estate
      Taxes
            12Section
      4.06
            Tenant’s
      Right to Review Supporting
      Data
            17ARTICLE
      V
      USE
            18Section
      5.01
            Permitted
      Use and Limitations on
      Use
            18Section
      5.02
            Compliance
      with
      Laws
            19Section
      5.03
            Delivery
      of
      Premises
            20Section
      5.04
            Building
      Security
            21Section
      5.05
            Rules
      and
      Regulations
            21Section
      5.06
            LEED
      Certification
      Requirements
            21Section
      5.07
            TDM
      Requirements
            22ARTICLE
      VI MAINTENANCE, REPAIRS AND
      ALTERATIONS
            22Section
      6.01
            Maintenance
      of Premises and
      Building
            22Section
      6.02
            Maintenance
      of Common
      Areas
            24











i





PageSection
      6.03
            Alterations,
      Additions and Improvements
            24Section
      6.04
            Covenant
      Against Liens
            25ARTICLE
      VII INSURANCE
            26Section
      7.01
            Property/Rental
      Insurance for Premises
            26Section
      7.02
            Property
      Insurance for Fixtures and Inventory
            26Section
      7.03
            Landlord’s
      Liability Insurance
            27Section
      7.04
            Tenant’s
      Liability Insurance
            27Section
      7.05
            Evidence
      of Insurance
            27Section
      7.06
            Mutual
      Waiver of Claims and Subrogation
      Rights
            28Section
      7.07
            Indemnification
      and
      Exculpation
            28ARTICLE
      VIII DAMAGE OR
      DESTRUCTION
            29Section
      8.01
            Repair
      of Damage by
      Landlord
            29Section
      8.02
            Repair
      Notice
            29Section
      8.03
            Landlord’s
      Option To Repair or
      Terminate
            30Section
      8.04
            Tenant’s
      Option to
      Terminate.
            30Section
      8.05
            Rent
      Abatement Due to
      Casualty.
            30Section
      8.06
            Damage
      Near End of Lease
      Term.
            30Section
      8.07
            Effective
      Date of Termination; Rent
      Apportionment.
            31Section
      8.08
            Waiver
      of Civil Code
      Remedies.
            31Section
      8.09
            No
      Abatement of
      Rentals.
            31Section
      8.10
            No
      Liability for Tenant’s Alterations or Personal
      Property.
            31ARTICLE
      IX REAL PROPERTY
      TAXES
            32Section
      9.01
            Payment
      of
      Taxes
            32Section
      9.02
            Proration
      for Partial
      Years
            33Section
      9.03
            Personal
      Property Taxes
            33ARTICLE
      X
      UTILITIES
            34ARTICLE
      XI ASSIGNMENT AND
      SUBLETTING
            35Section
      11.01
            Landlord’s
      Consent
      Required
            35Section
      11.02
            Tenant
      Affiliates
            35Section
      11.03
            No
      Release of
      Tenant
            36





ii





PageSection
      11.04
            Excess
      Rent
            36Section
      11.05
            Information
      to be Provided
            36Section
      11.06
            Landlord’s
      Recapture Rights
            37ARTICLE
      XII DEFAULTS; REMEDIES
            38Section
      12.01
            Defaults
            38Section
      12.02
            Remedies
            39Section
      12.03
            Default
      by Landlord
            40Section
      12.04
            Late
      Charges
            40Section
      12.05
            Landlord’s
      Right to Perform Tenant’s Obligations
            41ARTICLE
      XIII CONDEMNATION OF
      PREMISES
            41Section
      13.01
            Total
      Condemnation
            41Section
      13.02
            Partial
      Condemnation
            41Section
      13.03
            Award
      to
      Tenant
            42ARTICLE
      XIV ENTRY BY
      LANDLORD
            42ARTICLE
      XV ESTOPPEL
      CERTIFICATE
            43Section
      15.01
            Estoppel
      Certificate
            43Section
      15.02
            Failure
      to
      Deliver
            43ARTICLE
      XVI LIMITATIONS ON LANDLORD’S
      LIABILITY
            43ARTICLE
      XVII GENERAL
      PROVISIONS
            44Section
      17.01
            Severability
            44Section
      17.02
            Agreed
      Rate Interest on Past-Due
      Obligations
            44Section
      17.03
            Time
      of
      Essence
            44Section
      17.04
            Submission
      of
      Lease
            44Section
      17.05
            Incorporation
      of Prior Agreements and
      Exhibits
            44Section
      17.06
            Notices
            45Section
      17.07
            Waivers
            45Section
      17.08
            Recording
            46Section
      17.09
            Surrender
      of Possession; Holding
      Over
            46Section
      17.10
            Cumulative
      Remedies
            47Section
      17.11
            Covenants
      and
      Conditions
            47





iii





PageSection
      17.12
            Binding
      Effect; Choice of Law
            47Section
      17.13
            Lease
      to be Subordinate
            47Section
      17.14
            Attorneys’
      Fees
            48Section
      17.15
            Signs
            48Section
      17.16
            Merger
            49Section
      17.17
            Quiet
      Possession
            49Section
      17.18
            Easements
            50Section
      17.19
            Authority
            50Section
      17.20
            Force
      Majeure
      Delays
            50Section
      17.21
            Hazardous
      Materials
            50Section
      17.22
            Intentionally
      Deleted
            52Section
      17.23
            Brokers
            52Section
      17.24
            Survival
            53Section
      17.25
            Rooftop
      Communications
      Equipment
            53Section
      17.26
            Right
      of First
      Offer
            53Section
      17.27
            List
      of
      Exhibits
            55





iv





This
Triple Net Space Lease (the “Lease”), dated as of the date
first written in the Summary of Basic Lease Information set forth in Article I
below (the “Summary”),
is made by and between MT SPE, LLC, a Delaware limited liability company (“Landlord”) and RAMBUS INC., a
Delaware corporation (“Tenant”).





ARTICLE
I


SUMMARY
OF BASIC LEASE INFORMATION




TERMS OF LEASE
            DESCRIPTIONDate:
            December  15,
      2009Premises
              (Article II).Premises:
            An
      agreed upon 125,210 rentable square feet of space consisting of a portion
      of Floor 1 and all of Floors 6, 7 and 8 of the Building, as further set
      forth in Exhibit A, but
      subject to the terms of Section 2.04 below.Building:
            That
      certain eight (8) story building commonly known as Building C located at
      1040 Enterprise Way in Sunnyvale, California  94089, which
      consists of an agreed upon 317,166 rentable square feet, as depicted in
      Exhibit A.Lot
      1:
            Those
      three (3) certain buildings, including the Building, commonly known as
      Buildings A, B and C located at 1000-1040 Enterprise Way Sunnyvale,
      California  94089, which consist of an agreed upon 951,498
      rentable square feet, together with the land on which the same are
      situated, and related appurtenances, as depicted in Exhibit A.Project:
            The
      Project currently consists of six (6) buildings commonly known as
      Buildings A, B and C on Lot 1 and Buildings E, F and G on Lot 3, located
      at 1000-1160 Enterprise Way, Sunnyvale, California, which currently
      consist of approximately 1,628,096 rentable square feet, together with the
      land on which the same are situated, and related appurtenances, including
      an Amenities Parcel, commonly known as Building H and the related property
      located at 1060 Enterprise Way Sunnyvale, CA.  The Project is
      commonly referred to as “Moffett Towers,” as depicted in Exhibit A.
      As and when construction there of is completed, the Project will also
      consist of  a seventh (7th)
      building known as Building D on Lot 3 and Tenant’s Share will be adjusted
      pursuant to the terms of Section 4.05 (c) hereof.Parking
      Spaces
              (Section
      2.03):
            Three
      Hundred Seventy-Nine (379) non-exclusive parking
      spaces.  Parking spaces shall be located on Lot 1 only and
      otherwise in a combination of surface and structured
    parking.Lease
      Term
              (Article III).Commencement
      Date:
            The
      earlier to occur of (i) the date upon which Tenant first commences to
      conduct business in the Premises, or (ii)  July 1, 2010, subject to
      extension pursuant to the terms and conditions of the work letter attached
      hereto as Exhibit C (the
      “Work Letter”)
      (the “Commencement
      Date”).Expiration
      Date:
            The
      last day of the one hundred twentieth (120th)
      full calendar month after the Commencement Date.Option(s)
      to Extend:
            Tenant
      is given two (2) options to extend the Lease Term (each, an “Option to Extend”) for a
      period of sixty (60) months each (each, an “Extended Term”)
      immediately following the date on which the initial Lease Term or First
      Extended Term, as applicable, would otherwise expire.





1


Base
Rent


(Section 4.01):





Annual
      Installment
            Monthly
      Installment
            Monthly
      Base Rent per Square FootLease Months
            of Base Rent
            of Base Rent
            Of Rentable Area1-12*
            $3,681,174.00
            $306,764.50
            $2.4513-24
            $3,786,350.40
            $315,529.20
            $2.5225-36
            $3,906,552.00
            $325,546.00
            $2.6037-48
            $4,026,753.60
            $335,562.80
            $2.6849-60
            $4,146,955.20
            $345,579.60
            $2.7661-72
            $4,267,156.80
            $355,596.40
            $2.8473-84
            $4,402,383.60
            $366,865.30
            $2.9385-96
            $4,522,585.20
            $376,882.10
            $3.0197-108
            $4,657,812.00
            $388,151.00
            $3.10109-120
            $4,808,064.00
            $400,672.00
            $3.20*
      Base Rent for the Lease Months 1-6 shall be abated pursuant to the terms
      of Section 4.02.Tenant’s
      Share
              (Section 4.05),
      subject to potential adjustment pursuant to the terms of Section
      4.05(c).
            Tenant’s
      Project Share:  7.69%
              
              Tenant’s
      Lot 1 Share:  13.16%
              
              Tenant’s
      Building Share:  39.48%Permitted
      Use
              (Article
      V):
            General
      office, research and development use and any legally permissible related
      uses included, without limitation, lectures, electrical laboratories, RFI
      rooms (shielded to eliminate external radio frequencies), facilities for
      prototyping (including machine shop type functions and computer controlled
      machine tools), testing laboratories, and server roomsBroker
              (Section 17.23):
            Cornish
      & Carey Commercial represents both Landlord and
  TenantTenant’s
      Representative
              (Section 5.1
      of Exhibit C):
            Per
      Johanson, Senior Manager of Global Facilities and Real
    EstateLandlord’s
      Representative
              (Section 5.2
      of Exhibit C):
            Janette
      Sammartino


2


ARTICLE
II




PREMISES




Section
2.01                      Demise of
Premises




Landlord
hereby leases to Tenant and Tenant leases from Landlord for the Lease Term, at
the rental, and upon all of the terms and conditions set forth herein, certain
premises described in the Summary (“Premises”), which Premises
comprise a portion of that certain building described in the Summary (the “Building”) which is one of six
(6) current, (but seven (7) planned) free standing, office and research and
development project buildings (“Project Buildings”) on real
property situated in the City of Sunnyvale, County of Santa Clara, State of
California and commonly known as Moffett Towers.  The Premises are
more particularly described and depicted herein in Exhibit ”A.”Subject to the terms and
conditions of this Lease, Landlord reserves the right to access and use the
restrooms and janitor, telephone and electrical closets (as well as the space
above any dropped ceilings) solely for cabling, wiring, pipes and other Building
system elements; provided, however, such reservation shall not reduce the size
of the Premises or otherwise materially interfere with Tenant’s use and
enjoyment of the Premises and, provided, further, that notwithstanding anything
to the contrary contained in this Lease, Tenant shall not be responsible for
repairing, maintaining, and replacing any cabling, wiring, pipes and other
Building system elements located in such areas not installed therein by Tenant,
except, subject to Section 7.06 hereof, to the extent damaged or destroyed by
the actions of Tenant or any Tenant Parties.  The rentable square
footage of the Premises, Buildingand other Project
Buildings (the “Rentable
Area”) has been determined and certified by Landlord’s architect by a
method described as “dripline,” whereby the measurement encompasses the
outermost perimeter of the constructed building, including every projection
thereof and all area beneath each such projection, whether or not enclosed, with
no deduction for any inward deviation of structure and with the measurement
being made floor by floor, but beginning from the top of the
building.  Subject to Landlord’s reasonable security measures,
Applicable Laws, emergencies and Force Majeure events, Landlord acknowledges and
agrees that Tenant, its employees, agents, and invitees shall have access to the
Premises and the Building twenty-four (24) hours a day, seven (7) days a
week.




Section
2.02                      Common
Area




During
the Lease Term, Tenant shall have the non-exclusive right to use those portions
of the Common Area which are provided, from time to time, for use in common by
Landlord, Tenant and/or other tenants of the Building or Lot 1.  In
addition, during the Lease Term, Tenant and its employees shall have the
non-exclusive right, in common with others, to use the Amenities Parcel (as
defined below) and the roadways currently known as 11th
Avenue and Enterprise Way,  which provide access to the Amenities
Parcel.  Landlord reserves the right, in its sole discretion, to
modify the Common Area (including, without limitation, increasing or changing
the size thereof, adding or removing Project structures, facilities or other
improvements, or changing the use, configuration and elements thereof), to
designate certain areas for the exclusive use of Landlord and/or certain tenants
of Lot 1 or the Project, and to close or restrict access of certain areas from
time to time for repair, maintenance or construction or to prevent a dedication
thereof; provided that (i) Tenant nevertheless shall have direct access to
the Premises (including access through the lobby of the Buildings and the
elevators of the Building)




3


and to
parking areas serving the Building, (ii) any such modifications, when
completed, shall not unreasonably interfere with or restrict Tenant’s access to
or possession or use of the Premises or the visibility of Tenant’s signage, and
(iii) Landlord shall not grant any tenant of the Building any exclusive right to
parking spaces in the structured parking area supporting the Building or in the
area in front of the Building unless Landlord grants Tenant the same or
equivalent rights.  Landlord further reserves the right to establish,
repeal and amend from time to time reasonable rules and regulations for the use
of the Common Area and to grant easements or other rights to use the Common Area
to others; provided, however, that (A)  no amendment to the rules and
regulations shall (I) unreasonably interfere with or restrict Tenant’s access to
or possession or use of the Premises, (II) be binding until Tenant has received
at least ten (10) business days’ prior written notice of such rules and
regulations, or (III) not apply retroactively; (B) to the extent of any conflict
between an express provision of this Lease (other than the attached Rules and
Regulations) and such Common Area rules and regulations, this Lease shall
control, and (C) any such easements shall not reduce the number of Parking
Spaces available for Tenant’s use.  The “Common Area”shall consist of (i)
Project Common Area, which consists of an athletic facility (the "Athletic Facility") and
related landscaping to be available for use by Tenant’s employees (collectively
with the Athletic Facility, the “Amenities Parcel”), together
with 11th
Avenue and Enterprise Way, which provide access thereto, (ii) Lot 1 Common Area,
which includes all landscaping, sidewalks, walkways, driveways, curbs, parking
lots (including striping), roadways within Lot 1, sprinkler systems, lighting,
surface water drainage systems, as well as additional or different facilities as
Landlord may from time to time designate or install or make available for the
use by Tenant in common with others, and (iii) Building Common Area which
includes all lobbies (other than the lobbies on Floors 6, 7, 8 of the Building,
to the extent fully leased to Tenant), mechanical areas, stairwells, elevators
and elevator shafts, pipe, cabling and wiring shafts, telephone closets,
raceways, conduits, fiber vaults, meet-me rooms, pathways, riser spaces together
with their enclosing walls, plus, to the extent not leased to an occupant, all
entrances, elevator and floor lobbies other than the lobbies on Floors 6, 7, and
8 of the Building, to the extent fully-leased to Tenant), common corridors and
hallways, restrooms, janitor closets, telephone closets, electric closets and
other public or common areas located in the Building.




Section
2.03                      Parking




Throughout
the Lease Term, Landlord shall provide Tenant with the number of parking spaces
set forth in the Summary on an unreserved, non-designated non-exclusive first
come-first serve basis.  Except as set forth in the Summary, the
parking spaces shall include a mixture of surface and structured parking as
determined by Landlord, in its reasonable discretion.  Landlord shall
have no liability for the use of any such parking spaces by anyone (besides
Landlord) other than Tenant or Tenant’s visitors.  In the event
Landlord is required by any law to limit or control parking at the Building or
the Project, whether by validation of parking tickets or any other method of
assessment, Tenant, at no cost to it or its employees, customers or invitees,
agrees to participate in such validation or assessment program under such
reasonable and uniformly-applied rules and regulations as are from time to time
established by Landlord.  Except as otherwise expressly provided
herein, all costs and expenses associated with parking areas serving the Project
shall be included in Operating Expenses.




4


Section
2.04                      Construction




(a)           Tenant Improvement
Allowance




Landlord
shall provide to Tenant a Tenant Improvement Allowance of Ten Million Sixteen
Thousand Eight Hundred and 00/100 Dollars ($10,016,800) (i.e. $80.00 per square
foot of Rentable Area in the Premises) to be used for the Tenant Improvements as
set forth in the Work Letter attached as Exhibit C.  The
Tenant Improvement Allowance shall be reduced by an amount equal
to:  (i) Tenant’s Building Share of the costs associated with the
purchase and installation of the 2000 KW Generator, enclosure and related fuel
tank and transfer switch (collectively, the “Generator”), (ii) Tenant’s
Building Share of the costs associated with the construction of a
shipping/loading area for the Building by Landlord (the “Shipping/Loading Access”) in
the approximate location described in Exhibit H, and (iii) Tenant’s Lot 1 Share
of the costs associated with Landlord’s construction and installation of parking
gates at all entrances/exits to the parking structure known as “Parking
Structure 1” (“Parking
Structure 1”) located at 1060 Enterprise Way immediately behind the
Building.




(b)           Additional Tenant
Improvement Allowance




In
addition to the Tenant Improvement Allowance provided for in Section 2.04(a)
above, Landlord shall make available to Tenant, at Tenant’s request (provided
that such written request is received by Landlord on or before the Commencement
Date), an Additional Tenant Improvement Allowance of up to Ten Dollars ($10.00)
per square foot of Rentable Area of the initial Premises only to be used for the
Tenant Improvements set forth in the Work Letter attached as Exhibit
C.  In the event that Tenant elects to utilize all or a portion
of the Additional Tenant Improvement Allowance, the amount of such Additional
Tenant Improvement Allowance shall be amortized over the first eighty-four (84)
months of the initial Term of the Lease at a rate of eight percent (8%) per
annum, and Tenant shall pay, together with the monthly installments of Rent due
hereunder, such monthly amortized amount as Additional Rent.




(c)           Letter of Credit
Security




(i)           Deposit of Letter of Credit
Security.




In the
event that Tenant elects to use all or a portion of the Additional Tenant
Improvement Allowance, Tenant shall deposit with Landlord, at the time such
Additional Tenant Improvement Allowance is requested, an unconditional,
irrevocable letter of credit (“Letter of Credit”) on a form
reasonably acceptable to Landlord and, if required, Landlord’s lender(s), and in
favor of Beneficiary, defined below, in the amount of the Additional Tenant
Improvement Allowance so utilized by Tenant, plus interest thereon at the rate
specified in Section 2.04(b) above (the “Letter of Credit Security”)
for the sole and exclusive purpose of securing Tenant’s obligation to repay the
Additional Tenant Improvement Allowance as required by Section 2.04(b),
above.  “Beneficiary,” as used herein
refers to either:  (x) Landlord as beneficiary, or (y) if
required by Landlord’s lender(s), Landlord and Landlord’s lender(s) as
co-beneficiaries under the Letter of Credit Security.  The Letter of
Credit Security shall:  (i) be issued by a commercial money
center bank reasonably satisfactory to Landlord with retail branches in San
Francisco, California (the “Issuer”); (ii) be a
standby, at-sight, irrevocable letter




5


of
credit; (iii) be payable to Beneficiary; (iv) permit multiple, partial
draws; (v) provide that any draw on the Letter of Credit Security shall be
made upon receipt by the Issuer of a sight draft accompanied by a letter from
Landlord certifying that Tenant is in default of its obligation to repay the
Additional Tenant Improvement Allowance as required by this Lease and all
applicable notice and cure period related thereto have expired and, therefore,
Landlord is entitled to draw on the Letter of Credit Security in the amount of
such draw pursuant to the provisions of this Lease; (vi) provide for
automatic annual extensions, without amendment (so-called “evergreen” provision)
with a final expiry date no sooner than ninety (90) days after the end of the
eighty-fourth (84th)
month of the Lease Term; (vii) provide that is governed by the Uniform
Customs and Practice for Documentary Credits (1993 revisions) International
Chamber of Commerce Publication 500; and (viii) be cancelable if, and only
if, Issuer delivers to Beneficiary no less than sixty (60) days advance written
notice of Issuer’s intent to cancel.  Except for those costs and
expenses to be borne by Landlord pursuant to Section 2.04(c)(iv), below, Tenant
shall pay all costs, expenses, points and/or fees incurred by Tenant in
obtaining the Letter of Credit Security.




(ii)           Landlord’s Right to Draw on
Letter of Credit Security




The
Letter of Credit Security shall be held by Landlord solely as security for the
repayment by Tenant of the Additional Tenant Improvement Allowance used by
Tenant in accordance with Section 2.04(b) above.  Landlord shall have
the immediate right to draw upon the Letter of Credit Security, in whole or in
part and without prior notice to Tenant, other than as required under this
Lease, at any time and from time to time:  (1) if Tenant fails to
pay any installment of the amortized amount of the Additional Tenant Improvement
Allowance when due; provided, however, that such failure to pay shall be subject
to the same notice and cure periods applicable to a failure to pay Rent, or
(2) if Tenant either files a voluntary bankruptcy petition or an
involuntary bankruptcy petition is filed against Tenant by an entity or entities
other than Landlord, under 11 U.S.C. §101 et seq., or Tenant executes an
assignment for the benefit of creditors.  No condition or term of this
Lease shall be deemed to render the Letter of Credit Security conditional,
thereby justifying the Issuer of the Letter of Credit Security in failing to
honor a drawing upon such Letter of Credit in a timely manner.  The
Letter of Credit Security and its proceeds shall constitute Landlord’s sole and
separate property (and not Tenant’s property or, in the event of a bankruptcy
filing by or against Tenant, property of Tenant’s bankruptcy estate) and
Landlord shall immediately upon any draw (and, except as provided
above,  without notice to Tenant) apply or offset the proceeds of the
Letter of Credit Security against any installment of the amortized amount of the
Additional Tenant Improvement Allowance that is not paid when due.  If
any portion of the Letter of Credit Security is properly drawn upon and applied,
Tenant shall, within five (5) business days after written demand therefore,
restore the Letter of Credit Security to the then unamortized amount of the
Additional Tenant Improvement Allowance; Tenant’s failure to do so shall be a
default by Tenant.  It is expressly understood that Landlord shall be
relying on Issuer rather than Tenant for the timely payment of proceeds under
the Letter of Credit Security and the rights of Landlord pursuant to this
Section are in addition to any rights which Landlord may have against
Tenant pursuant to Article XII below.  Landlord agrees that, at
Tenant’s written request, at the end of each fiscal quarter, provided that
Tenant pays all of the installments of the monthly amortized amount of the
Additional Tenant Improvement Allowance due during such fiscal quarter in
accordance with this Lease, Landlord will promptly execute and deliver to
Tenant, for delivery to the Issuer, a




6


reduction
certificate providing for the reduction of the Letter of Credit Security in an
amount equal to the payment(s) made by Tenant during that past fiscal
quarter.




(iii)           Replacement Letter of Credit
Security




If, for
any reason whatsoever, the Letter of Credit Security becomes subject to
cancellation or expiration during the Lease Term, within forty-five (45) days
prior to expiration of the Letter of Credit Security, Tenant shall cause the
Issuer or another bank satisfying the conditions of Section 2.04(c)(i)
above to issue and deliver to Landlord a Letter of Credit Security to replace
the expiring Letter of Credit Security (the “Replacement Letter of Credit
Security”).  The Replacement Letter of Credit Security shall be
in the amount of the then unamortized balance of the Additional Tenant
Improvement Allowance.  Failure of Tenant to cause the Replacement
Letter of Credit Security to be issued forty-five (45) days prior to the then
pending expiration or cancellation shall entitle Landlord to fully draw down on
the existing Letter of Credit Security and, at Landlord’s election, shall be an
event of default under this Lese without any relevant notice and cure
period.




(iv)           Transfer of
Beneficiary




During
the Lease Term Landlord may transfer its interest in the Lease or Landlord’s
lender may change.  Landlord may request a change to Beneficiary under
the Letter of Credit Security to the successor of Landlord and/or Landlord’s
lender (the “Transferee”).  Tenant
agrees to cooperate and to cause Issuer, at Landlord’s cost, to timely issue a
new Letter of Credit Security on the same terms and conditions as the original
Letter of Credit Security, except that the new Letter of Credit Security shall
be payable to the Transferee.  Landlord shall surrender the existing
Letter of Credit Security to Tenant simultaneously with Tenant’s delivery of the
new Letter of Credit Security to Transferee.




(v)           Return of the Letter of
Credit Security




The
Letter of Credit Security or any balance thereof shall be returned (without
interest) to Tenant (or, at Tenant’s option, to the last assignee of Tenant’s
interests hereunder) promptly upon payment of the final monthly installment of
the amortized Additional Tenant Improvement Allowance.




(vi)           Acknowledgment of
Parties




Landlord
and Tenant (a) acknowledge and agree that in no event or circumstance shall
the Letter of Credit Security or any renewal thereof or substitute therefor or
any proceeds thereof be deemed to be or treated as a “security deposit” under
any law applicable to security deposits in the commercial context, including,
but not limited to Section 1950.7 of the California Civil Code, as such
Section now exists or as it may be hereafter amended or succeeded (the
“Security Deposit
Laws”), (b) acknowledge and agree that the Letter of Credit Security
(including any renewal thereof or substitute therefor or any proceeds thereof)
is not intended to serve as a security deposit, and the Security Deposit Laws
shall have no applicability or relevancy thereto, and (c) waive any and all
rights, duties and obligations that any such party may now, or in the future
will, have relating to or arising from the Security Deposit Laws.




7


Tenant
hereby waives the provisions of Section 1950.7 of the California Civil Code
and all other provisions of law, now or hereafter in effect, which
(i) establish the time frame by which a Landlord must refund a security
deposit under a lease, and/or (ii) provide that a Landlord may claim from a
security deposit only those sums reasonably necessary to remedy defaults in the
payment of rent, to repair damage caused by a Tenant or to clean the premises,
it being agreed that Landlord may, in addition, claim those sums specified in
this Section 4.06 and/or those sums reasonably necessary to compensate
Landlord for any loss or damage caused by Tenant’s breach of this Lease,
including any damages Landlord suffers following termination of this
Lease.




ARTICLE
III




TERM




Section
3.01                      Lease
Term




The term
of this Lease (the “Lease
Term”) shall commence on the Commencement Date set forth in the Summary
(the “Commencement
Date”), and shall expire, unless sooner terminated or extended as
provided for herein, on the Expiration Date set forth in the Summary (the “Expiration
Date”).  Within thirty (30) days following the Commencement
Date, Landlord and Tenant shall execute and deliver a Memorandum of Commencement
of Lease Term substantially in the form attached hereto as Exhibit B as a
confirmation of the information set forth therein.




Section
3.02                      Option to
Extend




(a)           Exercise




The
Option(s) to Extend set forth in the Basic Lease Information, if any, may be
exercised by Tenant, if at all, only by delivery of irrevocable written notice
(the “Option Notice”) to
Landlord given not more than fourteen (14) months nor less than
ten (10) months prior to the end of the initial Lease Term or Extended
Term, as relevant; provided, however, if, as of the date of delivery of the
Option Notice or any day thereafter on or before the last day of the initial
Lease Term or Extended Term, as relevant, Tenant (i) is in material default
under this Lease (beyond the expiration of any applicable notice period provided
under this Lease), (ii) has assigned this Lease to anyone other than an
Affiliate (as defined in Section 11.02 below) or (iii) is currently
subletting more than fifty percent (50%) of the Premises to anyone other
than an Affiliate, then, at the sole option of Landlord exercisable solely by
delivering written notice to Tenant within twenty (20) days of the receipt of
the Option Notice,  the Option Notice shall be totally ineffective,
and this Lease shall expire on the last day of the initial Lease Term or
Extended Term, if applicable, if not sooner terminated.  Furthermore,
it is understood and agreed that the Option(s) to Extend contemplated in this
Section 3.02 are personal to the originally named Tenant and any Affiliate
(as hereinafter defined) and are not transferable without the prior written
consent of Landlord.




(b)           Extended Term
Rent




In the
event Tenant exercises an Option to Extend set forth herein, all the terms and
conditions of this Lease shall continue to apply during the applicable Extended
Term,




8


except
that the Base Rent payable by Tenant during the Extended Term shall be equal to
the greater of:  (i) the Base Rent due hereunder with respect to the
last month of the initial Lease Term or previous Extended Term, if relevant, and
(ii) one hundred percent (100%) of Fair Market Rent (as defined below), as
determined pursuant to Section 3.02(c) below.  “Fair Market Rent” shall mean
the effective rental rate, determined on a per rentable square foot basis, being
charged (including periodic adjustments thereto as applicable during the period
of the applicable Extended Term, to the extent such adjustments are determined
to be part of the Fair Market Rent) in transactions entered into within the
twelve (12) month period immediately preceding the Negotiation Period, for
comparable space in similar buildings in the vicinity of the Project (i.e.,
buildings of a similar age and quality considering any recent renovations or
modernization), with similar floor plate size and with similar amenities, or, if
such comparable space is not available, then making adjustments in the
determination of Fair Market Rent to reflect the age, quality, layout and
amenities of the Premises and the Project, as contrasted to spaces in other
buildings used for comparison purposes, in all instances taking into
consideration:  size; location; floor level; leasehold improvements or
allowances provided or to be provided; lease term; extent of services to be
provided; the time that the particular rate under consideration became or is to
become effective; and any other relevant terms or conditions applicable to both
new and renewing tenants including, without limitation, any free rent or other
rental inducements.




(c)           Determination of Fair Market
Rent




(i)           Negotiation.  If
Tenant timely and properly exercises an Option to Extend, then, within the first
thirty (30) days following the date of delivery of the Option Notice (the
“Negotiation Period”),
the parties shall meet in good faith to negotiate the Base Rent for the Premises
during the Extended Term.  If, during the Negotiation Period, the
parties agree on the Base Rent for the Premises during the Extended Term, then
such agreed amount shall be the Base Rent payable by Tenant during the Extended
Term.




(ii)           Arbitration.  In
the event that the parties are unable to agree on the Base Rent for the Premises
within the Negotiation Period, then within ten (10) days after the
expiration of the Negotiation Period, each party shall separately designate to
the other in writing an appraiser to make this determination.  Each
appraiser designated shall be a member of the Appraisal Institute and shall have
at least ten (10) years experience in appraising commercial real property
in Santa Clara County.  The failure of either party to appoint an
appraiser within the time allowed shall be deemed equivalent to appointing the
appraiser appointed by the other party, who shall then determine the Fair Market
Rent for the Premises for the Extended Term.  Within five (5)
business days of their appointment, the two designated appraisers shall jointly
designate a third similarly qualified appraiser.  Within
thirty (30) days after their appointment, each of the two appointed
appraisers shall submit to the third appraiser a sealed envelope containing such
appointed appraiser’s good faith determination of the Fair Market Rent for the
Premises for the Extended Term; concurrently with such delivery, each such
appraiser shall deliver a copy of his or her determination to the other
appraiser.  The third appraiser shall, within ten (10) days
following receipt of such submissions, then determine which of the two
appraisers’ determinations most closely reflects Fair Market Rent and the chosen
appraiser’s determination shall be deemed to be the Fair Market Rent for the
Premises during the Extended Term.  The third appraiser shall have no
rights to adjust, amend or otherwise alter the determinations made




9


by the
appraisers selected by the parties, but must select one or the other of such
appraisers’ submissions.  The determination by such third appraiser
shall be final and binding upon the parties.  Said third appraiser
shall, upon selecting the determination which most closely resembles Fair Market
Rent, concurrently notify both parties hereto in writing.  The parties
shall share the appraisal expenses equally.  If the Extended Term
begins prior to the determination of Fair Market Rent, Tenant shall pay monthly
installments of Base Rent equal to one hundred three percent (103%) of the
monthly installment of Base Rent in effect for the last year of the initial
Lease Term. Once a determination is made, any over payment or under payment
shall be reimbursed as a credit against, or paid by adding to, the monthly
installment of Base Rent next falling due.




Section
3.03                      Early Termination
Option




(a)           Tenant
shall have a one-time right to terminate this Lease only as of that last day of
the eighty-fourth (84th)
month of the Lease Term (the “Early Termination Date”) by
providing Landlord with written notice (a “Termination Notice”) of its
intent to terminate given at least nine (9) months prior to the Early
Termination Date.




(b)           If
Tenant elects to exercise the right to terminate this Lease in accordance with
this Section 3.03, Tenant shall pay a cancellation payment simultaneously with
the delivery of the Termination Notice in an amount (the “Termination Fee”) equal to the
unamortized portion of (i) the abated Rent during the first six months of the
Initial Term, (ii) the Tenant Improvement Allowance or any other tenant
improvement allowance provided to Tenant, (iii) the costs incurred by Landlord
to complete any tenant improvements (including without limitation architectural
and engineering fees, permit fees and other soft costs) which were not included
in any other allowance provided to Tenant, and (iv) any leasing commissions paid
or incurred by Landlord in connection with this Lease, plus interest on the
cumulative sum of the items described in subsections (i) through (iv) herein
accruing from the Commencement Date of this Lease until such Termination Fee is
paid to Landlord at the rate of eight percent (8%) per
annum.   The parties agree to compute the Termination Fee and
include it as an item in the Memorandum of Commencement of Lease Term upon its
execution by Landlord and Tenant




(c)           Provided
that Tenant pays the Termination Fee, the Lease shall terminate as of the Early
Termination Date with the same force and effect as if scheduled to expire
according to its terms as of such date, and all terms and provisions of this
Lease (including, without limitation, the condition of the Premises upon
expiration of the Term and survival of indemnity obligations) shall be
applicable thereto.  If Tenant fails to timely pay the Termination
Fee, Tenant’s exercise of its right to terminate shall be null and void and of
no force and effect whatsoever, this Lease shall continue in full force and
effect and Tenant shall have no further right to terminate this Lease under this
Section 3.03.




(d)           Notwithstanding
the foregoing, Tenant’s exercise of its rights under this Section 3.03 shall, if
Landlord so elects in its absolute discretion, be ineffective in the event that
Tenant is in default beyond any applicable notice and cure period of this Lease
at the time of delivery of a Termination Notice or upon the Early Termination
Date.




10


ARTICLE
IV




RENT;
TRIPLE NET LEASE




Section
4.01                      Base
Rent




Subject
to the terms of Section 4.02 below, commencing on the Commencement Date and
continuing throughout the Lease Term, Tenant shall pay to Landlord, without
prior notice or demand, base rent (“Base Rent”) as set forth in
the Summary, which shall be payable in monthly installments, in advance, on or
before the first day of each calendar month of the Lease Term.  For
purposes hereof, “Lease Month
7” shall begin one (1) day after the sixth (6th)
full month of the Lease Term and end on the last day of the seventh (7th)
full calendar month after the Commencement Date.  In the event that
any month in the Lease Term begins on a day other than the first (1st) day
of a month, the Base Rent and Additional Rent for such month shall be multiplied
by a fraction, the numerator of which shall be the number of days in such month
and the denominator of which shall be number of days in such calendar month
(e.g., if the Lease Term commences September 13, the fraction for such month
shall be 17/30).  Notwithstanding the foregoing, Tenant shall pay to
Landlord Base Rent for Lease Month 7, together with Landlord’s estimate of
Additional Rent due hereunder for such month, upon Tenant’s execution of this
Lease.




Section
4.02                      Abatement of Base
Rent




Notwithstanding
anything to the contrary contained in this Lease, Landlord hereby waives
Tenant’s obligation to pay Base Rent for the first six (6) months of the initial
Lease Term (the “Abatement
Period”).




Section
4.03                      Payment of
Rent




This
Lease is what is commonly called an “Absolute Triple Net Lease,” it being
understood that Landlord shall receive the Base Rent set forth in
Section 4.01 free and clear of, and in addition to, any and all expenses,
costs, impositions, taxes, assessments, liens or charges of any nature
whatsoever.  Tenant shall pay all Rent in lawful money of the United
States of America to Landlord at the notice address stated herein or to such
other persons or at such other places as Landlord may designate in writing on or
before the due date specified for same without prior demand, set-off or
deduction of any nature whatsoever.   It is the intention of the
parties hereto that this Lease shall not be terminable for any reason by Tenant
and that Tenant shall in no event be entitled to any abatement of or reduction
in Rent payable under this Lease, except as herein expressly provided in
Articles VIII and XIII concerning destruction and condemnation.  Any
present or future law to the contrary shall not alter this agreement of the
parties.




Section
4.04                      Additional
Rent




In
addition to the Base Rent reserved by Section 4.01, commencing on the
Commencement Date and continuing throughout the Lease Term, Tenant shall pay
(i) Tenant’s Share of Operating Expenses; (ii) Tenant’s Share of
Insurance Expenses; (iii) Tenant’s Share of Real Estate Taxes; and
(iv) a management fee (the “Management Fee”), payable on a
monthly basis, in advance, at the same time and in the same manner applicable to
monthly installments of Base Rent, in an amount equal to two and one half
percent (2.5%) of the then applicable monthly




11


installment
of Base Rent (for the purposes of this Section 4.04, the Base Rent for the first
six (6) months of the Lease Term shall be deemed to be $306,764.50,
notwithstanding any abatement of Base Rent during the Abatement Period pursuant
to Section 4.02 above); provided, however, that the Management Fee shall not be
due or payable for the first six (6) months of the Lease Term).  All
of the foregoing payments, together with any and all other amounts (other than
Base Rent), whether or not contemplated, payable by Tenant pursuant to the terms
of this Lease are referred to herein, collectively, as “Additional Rent, “ and Base
Rent and Additional Rent are referred to herein, collectively, as “Rent. “




Section
4.05                      Operating Expenses;
Insurance Expenses; Real Estate Taxes




(a)           Definitions




Subject
to the terms and conditions of Section 4.05(b), below, “Operating Expenses” shall mean
all expenses, costs and amounts of every kind and nature (other than Insurance
Expenses and Real Estate Taxes) which Landlord pays or accrues (whether
obligated to do so or undertaken at Landlord’s discretion) during any calendar
year during the Lease Term because of or in connection with the operation,
management, maintenance, security, repair, replacement and restoration of (1)
the Project, (2) Lot 1, (3) the Amenities Parcel, and (4) the Building, or any
portion thereof.  Without limiting the generality of the foregoing,
Operating Expenses shall specifically include any and all of the
following:




(i)           With
respect to the Project, any and all costs and expenses charged to Landlord as
owner of Lot 1 (or any portion thereof) pursuant to any covenants, conditions
and restriction or similar governing document recorded against the property of
which the Premises is a part, including, but not limited to, costs and expenses
of operating, cleaning, lighting, maintaining, repairing and replacing all
Project Common Area improvements and elements (including, without limitation,
light poles and fixtures, storm and sanitary sewers, parking lots, driveways and
roads);




(ii)           With
respect to Lot 1, any and all costs and expenses charged to Landlord as owner of
Lot 1 (or any portion thereof) pursuant to any covenants, conditions and
restriction or similar governing document recorded against the property of which
the Premises is a part, including, but not limited to, costs and expenses of
operating, cleaning, lighting, maintaining, repairing and replacing all Lot 1
Common Area improvements and elements (including, without limitation, light
poles and fixtures, storm and sanitary sewers, parking lots, driveways and
roads);




(iii)           With
respect to the Amenities Parcel, any and all costs and expenses charged to
Landlord as owner of Lot 1 (or any portion thereof) pursuant to any covenants,
conditions and restriction or similar governing document recorded against the
property of which the Premises is a part, including, but not limited to, costs
and expenses of operating, cleaning, lighting, maintaining, repairing and
replacing all improvements and elements (including, without limitation,
elevators, stairways, floors, exterior and interior walls, roof, roof membrane
and all other elements of the Athletic Facility; a use privilege fee consisting
of:  (x) Base Rent, as adjusted, times Tenant’s Share of the
agreed 48,207 square foot Athletic Facility,and (y) costs and
expenses arising from the operation of same (net of any fees paid
by




12


individual
users), provided, however, that no cost  or expense that would
otherwise be excluded from Operating Expenses pursuant to the terms and
conditions of this Lease shall be included; and




(iv)           With
respect to the Building (or any portion thereof), or the Project, Amenities
Parcel or Lot 1 to the extent such costs are incurred by Landlord and not
otherwise included pursuant to items (i) through (iii) above, costs and expenses
of cleaning, lighting, maintaining, repairing and replacing all improvements and
elements (including, without limitation, light poles and fixtures, parking lots,
driveways and roads, storm and sanitary systems (except that the parking lots
and driveways may only be repaved or slurry sealed three (3) times during the
initial Lease Term, and the parking lot striped not more often than three (3)
times during the initial Lease Term; costs of removal of trash, rubbish, garbage
and other refuse; costs of painting of exterior and interior walls; costs of
removal of graffiti; costs of maintaining landscaping; costs of providing
security systems and personnel to the extent Landlord determines in its sole
discretion to do so; fire protection and fire hydrant charges (including fire
protection system signaling devices now or hereafter required, and the costs of
maintaining of same); water and sewer charges; utility charges; license and
permit fees necessary to operate and maintain the Building, the Amenities
Parcel, Lot 1 or the Project; costs of supplies, tools and materials used in the
operation and maintenance of the Building, the Amenities Parcel, Lot 1 or the
Project and the Common Area; the cost (or the reasonable depreciation of the
cost) of equipment used in the operation and maintenance of the Building, Lot 1,
the Amenities Parcel or the Project and the Common Area (which shall be expensed
or amortized, respectively, by Landlord in its good faith discretion using
commercial real estate management principles, consistently applied) and rent
paid for leasing any such equipment; reasonable cost of on-site or off-site
space for the storage of any and all items used in conjunction with the
operation, management, maintenance and repair of the Project, Building, Lot 1 or
Amenities Parcel (including, without limitation, tools, machinery, records,
decorations, tables, benches, supplies and meters); the cost of making all
improvements which are intended to reduce Operating Expenses or to increase
public safety as required by any Applicable Laws (but only to the extent of such
savings over the Lease Term), or improvements which may be then required by
governmental authority, laws, statutes, ordinances and/or regulations; the cost
of all licenses, certificates, permits and inspections (other than inspections
related to the inspection of the build-out of any space leased to tenants of the
Project); the reasonable cost of contesting any governmental enactments which
may affect Operating Expenses; reasonable costs incurred to comply with any
transportation demand management program, any present or anticipated
conservation program or any other required governmental program; payments under
any easement, license, operating agreement, declaration, restrictive covenant,
or instrument pertaining to the sharing of costs by the Building, Lot 1 or the
Project; costs, fees, charges or assessments imposed by, or resulting from any
mandate imposed on Landlord by, any federal, state or local government for fire
and police protection, trash removal, community services, or other services
which do not constitute Real Estate Taxes hereunder; total compensation and
benefits (including premiums for workers’ compensation and other insurance,
except to the extent such premiums are included in Insurance Expenses) paid to
or on behalf of Landlord’s employees, agents, consultants and contractors below
the grade of building manager, including, without limitation, full or part time
on-site management or maintenance personnel.




“Insurance Expenses” shall mean
all expenses, costs and amounts of every kind and nature which Landlord pays or
accrues (whether obligated to do so or undertaken




13


at
Landlord’s discretion) during any calendar year during the Lease Term because of
or with respect to insurance carried by Landlord in connection with the Building
or the Project, including, without limitation, all insurance described in
Sections 7.01 and 7.03 below.




“Real Estate Taxes” shall mean
all expenses, costs and amounts which Landlord pays or accrues during the Lease
Term for the Project, including, without limitation, the statements, bills,
impositions or levies for all Real Property Taxes described in Article IX below;
provided, however, that Tenant shall not be obligated to pay any penalties
resulting Landlord’s late payment of any Real Property Taxes, except to the
extent such late payment is directly due to Tenant’s failure to pay Real Estate
Taxes as and when due hereunder.




(b)           Exclusions




Notwithstanding
anything to the contrary contained herein, “Operating Expenses” shall not
include (and Tenant shall have no liability for) any of the
following:  (i) any expenses incurred by Landlord for the sole benefit
of Tenant, which expenses shall be reimbursed in full by Tenant pursuant to the
other terms of this Lease (other than through reimbursement of Tenant’s Share of
Operating Expenses), (ii) any expenses incurred by Landlord for the sole benefit
of one or more other tenants of the Building or the Project, which expenses are
in fact reimbursed by such tenant(s) (other than through any operating cost
reimbursement provision identical or substantially similar to the provisions set
forth in this Lease), (iii) any payments of interest or principal relating to
any debt secured by the Building or the Project, except any debt incurred by
Landlord for the purpose of financing amounts which would otherwise be included
in Operating Expenses hereunder, (iv) Landlord’s non-cash depreciation and
amortization of the initial construction of any Common Area improvements;
provided that nothing herein shall limit Landlord’s ability to collect the cost
of other capitalized items pursuant to the terms of this Lease, (v) the
cost of relocating any tenants of Lot 1 or the Project, (vi) the cost of
any item for which Landlord is actually reimbursed by insurance, condemnations,
refund or rebate (and Landlord agrees to use good faith efforts to collect such
amounts), (vii) any expenses for repairs or maintenance to the extent actually
recovered under any warranties or guarantees applicable to the Building, Lot 1
or the Project, (viii) any cost of testing, surveying, cleaning up, containing,
abating, remedying, removing, encapsulating or handling any Hazardous Materials
at, in, or under the Project, (ix) any cost or expense arising from any defaults
by Landlord under this Lease or any other lease in Lot 1 or the Project, (x) any
property management fees for the Building, Lot 1 or the Project in excess of the
Management Fee described in Section 4.04 above, (xi) marketing costs, costs of
leasing commissions, attorneys’ fees and other costs and expenses incurred in
connection with negotiations or disputes with prospective tenants or other
occupants of the Building, Lot 1 or Project; (xii) any cost of repairs or
alterations resulting from defects in the initial design and construction of the
Building or the Project; (xiii) overhead and profit paid to subsidiaries or
affiliates of Landlord for management or other services, to the extent that the
costs of such services, supplies or materials if the same were not provided by a
subsidiary or affiliate, (xiv) costs of decorating, redecorating, or special
cleaning or other services offered to other tenants of the Building, but not to
Tenant, (xv) wages, salaries, fees, and fringe benefits paid to executive
personnel or officers or partners of Landlord; (xvi) any charge for Landlord’s
income taxes, excess profit taxes, franchise taxes, or similar taxes on
Landlord’s business; (xvii) the cost of any repair made by Landlord
because




14


of the
total or partial destruction or condemnation of any portion of the Project,
provided that nothing herein shall excuse Tenant from its obligation to pay a
portion of Landlord’s property insurance deductible in the event of a casualty,
as is provided for elsewhere in this Lease, (xviii) the cost of tools and
equipment used initially in the construction, operation, repair and maintenance
of the Project; (xix) the cost of any work or service performed for or
facilities furnished to other tenants of the Building, but not to
Tenant;  (xx) the cost incurred by  Landlord in curing its
defaults or performing work expressly provided for in this Lease to be borne at
Landlord’s expense; (xxi) ground rent or similar payments to a ground lessor;
(xxii) transfer taxes, title insurance costs, points or brokerage commissions
incurred in connection with the sale, financing, refinancing, mortgaging, or
other change of ownership in any part of the Project; (xxiii) all expenses in
connection with the installation with luncheon club, athletic club, dining
facility or any other facility not generally available to other office tenants
in the Project; (xxiv) bad debt expenses; (xxv) costs of acquisition and
maintenance of signs in or on the building identifying the owner of the building
or other tenants; (xxvi) costs incurred by Landlord due to the violation by
Landlord or any other tenant of the terms of any lease of any space in the
Project, (xxvii) Landlord’s general corporate overhead and general and
administrative expenses; (xxviii) costs arising from Landlord’s charitable or
political contributions; (xxix) costs for the purchase (but not maintenance or
repair) of sculptures, paintings and other fine art; (xxx) any compensation paid
to clerks, attendants or other persons in commercial concessions operated by
Landlord, (xxxi) Insurance Expenses, (xxxii) Real Estate Taxes and (xxxiii) any
costs arising from the breach by Landlord of its obligations pursuant to this
Lease beyond any applicable notice and cure periods.  Notwithstanding
the above, if Tenant's Share of the cost of any particular capital expenditure
to the Building or Common Area exceeds Fifty Thousand Dollars ($50,000), then
such cost, together with interest thereon at the rate actually charged Landlord
by any lender or, if no such interest is relevant, with interest thereon at an
interest rate equal to the Agreed Rate (as defined in Section 17.02 below),
shall be amortized over its useful life, and the amount includible in Operating
Expenses shall be limited to the monthly amortized cost thereof.  The
determination of what constitutes a capital expenditure and the useful life
applicable thereto shall be made by Landlord in its good faith discretion using
accounting practices commonly utilized in the commercial real estate industry,
consistently applied.




(c)           Tenant’s
Share




For
purposes hereof, “Tenant’s
Share” shall mean, as applicable:  (i) Tenant’s Project Share
(hereinafter defined), (ii) Tenant’s Lot 1 Share (hereinafter defined), or (iii)
Tenant’s Building Share (hereinafter defined).  “Tenant’s Project Share” shall
mean the percentage derived by the quotient of the Rentable Area of the Premises
divided by the Rentable Area of Lot 1 or the Project.  “Tenant’s Lot 1 Share” shall
mean the percentage derived by the quotient of the Rentable Area of the Premises
divided by the Rentable Area of Lot 1. “Tenant’s Building Share” shall
mean the percentage derived by the quotient of the Rentable Area of the Premises
divided by the Rentable Area of the Building.  Whenever used in this
Lease, the term “Tenant’s Share” shall mean either the Tenant’s Project Share,
Tenant’s Lot 1 Share or Tenant’s Building Share, as applicable. Landlord and
Tenant acknowledge and agree that: (i) Tenant’s Project Share, Tenant’s Lot 1
Share and Tenant’s Building Share shall be the percentages set forth in the
Summary, and (ii) Landlord shall not pass through any cost to Tenant in an
amount equal to Tenant’s Project Share unless Landlord incurs such cost with
respect to the Project as a whole and charges other tenants of the Project on
that same basis; Landlord will not pass through




15


to Tenant
any cost in an amount equal to Tenant’s Lot 1 Share unless Landlord incurs such
cost with respect to Lot 1 as a whole and charges other tenants of Lot 1 on that
same basis; and Landlord will not pass through to Tenant any cost in an amount
equal to Tenant’s Building Share unless Landlord incurs such cost with respect
to the Building as a whole and charges other tenants of the Building on that
same basis.  Notwithstanding the foregoing, Tenant’s Share shall be
subject to increase or reduction (in an amount Landlord shall, in good faith,
determine), based upon any increase or reduction in the Rentable Area of the
Project, Lot 1, the Building, or the Premises.  By way of example
only, were Landlord to build “Building “D” of the Project and the square footage
of Building “D” was 227,614 rentable square feet, then the aggregate rentable
square footage of the Project would increase to 1,855,710 and Tenant’s Project
Share would decrease to 6.75%.




(d)           Payment




Commencing
on the Commencement Date, and continuing through the Lease Term, Tenant shall
pay, on the first day of each calendar month, monthly installments of
Tenant’s  Share of Operating Expenses, Tenant’s Share of Insurance
Expenses and Tenant’s Share of Real Estate Taxes in amounts set forth in a
written estimate by Landlord.  Landlord shall have the right to revise
its estimate upwards one time during a particular calendar
year.  Provided that Tenant is afforded at least thirty (30) days
prior written notice of such revision, then, commencing with Tenant’s next
installment of Base Rent due, Tenant thereafter shall pay such amounts set forth
in such revised estimate (which may include an additional monthly amount based
upon any shortfall in Landlord’s previous estimate).  If Tenant is not
provided thirty (30) days’ prior written consent of such revision, then Tenant’s
obligation to pay such amount shall commence on the first day of the first
calendar month following the expiration of the thirty (30) day notice. (By way
of example only, if Landlord notifies Tenant that it has revised its estimated
statement of Operating Expenses on August 15, then such revised amount shall
first be due on October 1.)  Landlord shall furnish to Tenant a
statement (hereinafter referred to as “Landlord’s Statement”), within
ninety (90) days after the end of each calendar year, which shall set forth
the actual amounts of Tenant’s Share of Operating Expenses, Tenant’s Share of
Insurance Expenses and Tenant’s Share of Real Estate Taxes for such preceding
calendar year.  In the event that the actual amounts of Tenant’s Share
of Operating Expenses, Tenant’s Share of Insurance Expenses and Tenant’s Share
of Real Estate Taxes for such preceding calendar year exceed the estimated
amounts paid by Tenant with respect to each of Tenant’s Share during such
preceding calendar year, then Tenant shall pay to Landlord, as Additional Rent,
the entire amount of such excess within thirty (30) days after receipt of
Landlord’s Statement.  In the event that the actual amounts of
Tenant’s Share of Operating Expenses, Tenant’s Share of Insurance Expenses and
Tenant’s Share of Real Estate Taxes for such preceding calendar year are less
than the estimated amounts paid by Tenant with respect to each of Tenant’s
Shares during such preceding calendar year, then Landlord shall apply such
difference as a credit to installments of Rent next falling due (or if the Lease
Term has expired or terminated and there remains no money due to Landlord, then
Landlord shall remit to Tenant the amount of such difference within thirty (30)
days of the expiration or earlier termination of the Lease).  Tenant’s
Share of Operating Expenses, Tenant’s Share of Insurance Expenses and Tenant’s
Share of Real Estate Taxes for the ensuing estimation period shall be adjusted
upward or downward based upon Landlord’s Statement.




16






(e)Limited Abatement of
Operating Expenses, Insurance Expenses and Real Estate
Taxes




Notwithstanding
anything to the contrary contained in this Lease, Landlord hereby waives
Tenant’s obligation to pay Tenant’s Share of Operating Expenses, Tenant’s Share
of Insurance Expenses and Tenant’s Share of Real Estate Taxes and the Management
Fee for the Abatement Period (as defined in Section 4.02 above); provided,
however, that Tenant shall be obligated to pay Tenant’s Share of any services
that are dependent on occupancy of the Premises (e.g. janitorial services and
utilities) provided to the Premises during the Abatement Period.




Section
4.06                      Tenant’s Right to Review
Supporting Data




(a)           Exercise of Right by
Tenant




Provided
that Tenant has not then received an uncured notice of default under this Lease
from Landlord and provided further that Tenant strictly complies with the
provisions of this Section 4.06, Tenant shall have the right to reasonably
review supporting data for any portion of a Landlord’s Statement that Tenant
claims is incorrect.  In order for Tenant to exercise its right under
this Section 4.06, Tenant shall, within one hundred twenty (120) days after
any Landlord’s Statement is received, deliver a written notice to Landlord
specifying the portions of such Landlord’s Statement that are claimed to be
incorrect, and Tenant shall simultaneously pay to Landlord all amounts due from
Tenant to Landlord as specified in such Landlord’s Statement if such amounts
have not previously been paid.  Except as expressly set forth in
Section 4.06(c) below, in no event shall Tenant be entitled to withhold,
deduct, or offset any monetary obligation of Tenant to Landlord under this
Lease, including, without limitation, Tenant’s obligation to make all Base Rent
payments and all payments of Additional Rent pending the completion of, and
regardless of the results of, any review under this
Section 4.06.  The right to review granted to Tenant under this
Section 4.06 may only be exercised once for any Landlord’s Statement, and if
Tenant fails to meet any of the above conditions as a prerequisite to the
exercise of such right, the right of Tenant under this Section 4.06 for a
particular Landlord’s Statement shall be deemed waived.




(b)           Procedures for
Review




Tenant
agrees that any review of supporting data under this Section shall occur at
such location at which Landlord’s records for the Building, Lot 1 or the Project
are then located; provided, however, that Landlord agrees to retain such records
in a single location either at the Project or at Landlord’s usual location
therefor.  Any review to be conducted under this Section
4.06 shall be at the sole expense of Tenant and shall be conducted by a
firm of certified public accountants of national or regionally standing on a
non-contingency basis; provided, however, that if any such review (as agreed
upon by Landlord under Section 4.06(c) below) reveals an overcharge to Tenant in
excess of three percent (3%), then Landlord shall reimburse Tenant for Tenant’s
out-of-pocket third party costs incurred in connection with Tenant’s
review.  Tenant acknowledges and agrees that any supporting data
reviewed under this Section 4.06 shall constitute confidential information
of Landlord, which shall not be disclosed to anyone other than the accountants
performing the review and the management of Tenant who receive the results of
the review.  Except (i) to the extent required by law, (ii) in
connection with any legal proceeding concerning this Lease, or (iii) to the
extent such information or results are otherwise




17


publicly
available, the disclosure of such information or results of the review to any
other person by Tenant shall entitle Landlord to all of its rights and remedies
available to Landlord and Tenant at law or in equity, with Tenant agreeing that
Landlord shall be entitled to pursue and injunction against Tenant to prevent
the disclosure of such information in violation of the terms of this
Lease.






(c)Resolution of Disputes
Regarding Operating Expenses, Insurance Expenses and Real Estate
Taxes




Provided
Tenant has complied with the provisions of this Section 4.06, if Tenant believes
the results of the review of supporting data described in Subsection (b) above
have revealed Landlord’s calculation of the disputed portion of Landlord’s
Statement to be in error, Tenant shall have fifteen (15) days after the
completion of the examination to notify Landlord of same in writing. The alleged
error(s) shall be described with particularity in Tenant’s notice, which shall
be accompanied by all information supporting Tenant’s allegations. The parties
hereto may agree to correct such error(s) (in which case Landlord will provide a
revised Landlord’s Statement within fifteen (15) days after Tenant’s notice) or
a dispute between the parties may persist.  Tenant’s sole and
exclusive remedy for resolving any such dispute shall be by binding
arbitration.  The arbitration shall be administered by the office of
JAMS in San Francisco, California, and shall be conducted pursuant to its
Streamlined Arbitration Rules and Procedures.  The arbitrator’s powers
shall be limited to resolving the dispute and awarding costs (including
reasonable attorneys’ fees) to the prevailing party.




(d)           Effect of Tenant’s
Default




In the
event that Landlord has, in good faith, provided Tenant with written notice that
Tenant is in default of its obligations under this Lease at any time during the
pendency of a review of records under this Section 4.06, said right to review
shall immediately cease and the matters originally set forth in the Landlord’s
Statement shall be deemed to be correct.




ARTICLE
V




USE




Section
5.01                      Permitted Use and
Limitations on Use




The
Premises shall be used and occupied only for the permitted use set forth in the
Summary and for no other use or purpose whatsoever.  Tenant shall not
use, suffer or knowingly permit the use of the Premises in any manner that would
constitute waste, nuisance or unlawful acts.  Tenant shall not do
anything in or about the Premises which would (a) cause structural injury
to the Building or the Premises, or (b) cause damage to any part of the
Building or the Premises except to the extent reasonably necessary for the
installation of Tenant’s trade fixtures and Tenant’s Alterations, and then only
in a manner and to the extent consistent with this Lease.  Tenant
shall not operate any equipment within the Building or the Premises which would
(i) materially damage the Building or the Common Area, (ii) overload
existing mechanical, electrical or other systems or equipment servicing the
Building, (iii) impair the efficient operation of the sprinkler system or
the heating, ventilating or air conditioning equipment within




18


or
servicing the Building, (iv) damage, overload or corrode the sanitary sewer
system, or (v) damage the Common Area or any other part of Lot 1 or the
Project.  Tenant shall not attach, hang or suspend anything from the
ceiling, roof, walls or columns of the Building or set any load on the floor in
excess of the load limits for which such items are designed nor operate hard
wheel forklifts within the Premises.  Any dust, fumes, or waste
products generated by Tenant’s use of the Premises shall be contained and
disposed so that they do not (A) create an unreasonable fire or health
hazard, (B) damage the Premises, or (C) result in the violation of any
law.  Except as approved by Landlord, Tenant shall not change the
exterior of the Building, or the area outside of the Premises, or install any
equipment or antennas on or make any penetrations of the exterior or roof of the
Building, except as provided for in Section 17.25.  Tenant shall not
conduct on any portion of the Premises any sale of any kind (but nothing herein
is meant to prohibit sales and marketing activities of Tenant’s products and
services in the normal course of business consistent with the permitted use),
including any public or private auction, fire sale, going-out-of-business sale,
distress sale or other liquidation sale, and any such sale shall be an immediate
event of default hereunder without the benefit of a notice and cure period from
Landlord, notwithstanding anything to the contrary in this Lease.  No
materials, supplies, tanks or containers, equipment, finished products or
semi-finished products, raw materials, inoperable vehicles or articles of any
nature shall be stored upon or permitted to remain within the outside areas of
the Premises except in fully fenced and screened areas outside the Building
which have been designed for such purpose and have been approved in writing by
Landlord for such use by Tenant and for which Tenant has obtained all
appropriate permits from governmental agencies having jurisdiction over such
articles.




Section
5.02                      Compliance with
Laws




(a)           Landlord
shall deliver the Premises to Tenant on the Delivery Date (without regard to the
use for which Tenant will use the Premises) in full compliance with all
applicable laws, statutes, codes, rules, regulations and ordinances including,
without limitation, the American With Disabilities Act (collectively, the “Applicable
Laws”).




(b)           Throughout
the Lease Term and any Extended Terms, Tenant shall comply with all Applicable
Laws and covenants and private restrictions, along with the LEED Certification
Requirements (as defined in Section 5.06 below) applicable to the Premises
promulgated now or in the future: (i) regarding the physical condition of the
Premises, but only to the extent pertenent to the particular and unique manner
in which Tenant uses the Premises (by way of example only, if any governmental
authority should require any portion of the Project or the Premises to be
structurally strengthened against earthquake, or should require the removal of
Hazardous Materials from the Premises and such measures are imposed as a general
requirement applicable to all tenants rather than as a condition to Tenant’s
specific use or occupancy of the Premises, such work shall be performed by and
at the sole cost of Landlord); (ii) regarding the physical condition of the
Building to the extent such compliance work is triggered by Alterations within
the Premises; or (iii) that do not relate to the physical condition of the
Premises but relate to the lawful use of the Premises and with which only the
occupant can comply, such as laws governing maximum occupancy, workplace
smoking, and illegal business operations.  Any other alterations or
improvements affecting the Premises and required by Applicable Laws, LEED
Certification Requirements or private covenants shall be performed
by




19


Landlord
and Tenant shall reimburse Landlord for Tenant's Share of such cost at the same
time and in the same as Operating Expenses are paid by Tenant under the terms of
this Lease.




(c)           By
executing this Lease, Tenant acknowledges that it has reviewed and satisfied
itself as to its compliance, or intended compliance with the applicable zoning
and permit requirements, hazardous materials and waste requirements, and all
other statutes, laws, or ordinances relevant to the uses stated in
Section 5.01 above or the occupancy of the Premises.




Section
5.03                      Delivery of
Premises




(a)           Early
Entry




Notwithstanding
anything herein to the contrary, as of the Delivery Date (as defined below),
Tenant and Tenant’s invitees may enter the Premises (and the Common Area of the
Building, to the extent reasonably necessary), at Tenant’s sole risk, for the
sole purpose of installation of the Tenant Improvements (as defined in
Section 2.1 of Exhibit C
attached hereto and made a part hereof), and its furniture, fixtures and
equipment (collectively, the “FF&E”) Tenant’s occupancy
of the Premises prior to the Commencement Date shall be solely for the purpose
of constructing the Tenant Improvements and installing the FF&E (and not for
the conduct of Tenant’s business) and shall be on all of the terms and
conditions of this Lease as though the Lease Term had commenced on the Delivery
Date, except the obligation to pay Rent.  The “Delivery Date” shall mean that
date on which all of the following have occurred:  (a) this Lease
is fully executed and delivered by Landlord and Tenant; and (b) Tenant has
delivered to Landlord (i) Rent for the Lease Month 7, and
(ii) evidence of the insurance described in Article VII
below.  Tenant shall give Landlord twenty-four (24) hours prior
written notice of its initial entry into the Premises by Tenant or Tenant’s
invitees pursuant to this Section 5.03(a) but thereafter shall not be required
to provide Landlord with such notice.  Tenant shall ensure that any
entry by Tenant or its invitees does not unreasonably interfere with the
construction or completion of any work to be performed by Landlord
hereunder.  In addition, from and after the Delivery Date, Tenant’s
employees may use the Amenities Parcel for its intended use without charge until
the Commencement Date.




(b)           Condition of
Premises.





Having
made such inspection of the Premises, the Building, Lot 1 or the Project as it
deemed prudent and appropriate (including, without limitation, testing for the
presence of mold), Tenant hereby accepts the Premises in their condition
existing as of the Delivery Date, “AS-IS” and “WITH ALL FAULTS” subject to all
applicable zoning, municipal, county and state laws, ordinances and regulations
governing and regulating the use and condition of the Premises, and any
covenants or restrictions, liens, encumbrances and title exceptions of record,
and accepts this Lease subject thereto and to all matters disclosed thereby and
by any exhibits attached hereto.  Notwithstanding the foregoing but
subject to all of the terms of this Lease for the construction of Tenant
Improvements, Landlord shall deliver the Building to Tenant on the Delivery Date
with the building plumbing, lighting, heating, ventilation, air conditioning,
gas, electrical, and sprinkler systems and loading doors in proper operating
condition and built substantially in accordance with the approved plans thereof
and in a workman like manner.  Except as specifically set forth in
this Lease and in the Work Letter Agreement for Tenant Improvements and Interior
Specification Standards attached




20


hereto as
Exhibit C
and made a part hereof (“Work
Letter”), Landlord shall not be obligated to provide or pay for any
improvement work or services related to the improvement of the
Premises.  Tenant acknowledges that neither Landlord nor any agent of
Landlord has made any representation or warranty as to the present or future
suitability of the Premises for the conduct of Tenant’s
business.  Neither party has been induced to enter into this Lease by,
nor is either party is relying on, any representation or warranty outside those
expressly set forth in this Lease.  Neither Landlord nor anyone acting
on its behalf shall be liable for, nor shall this Lease be subject to rescission
on account of, the nondisclosure of any facts.  Tenant expressly
waives any right to rescission and /or damages based on nondisclosure of any
facts.




Section
5.04                      Building
Security




Landlord
will provide (as part of Operating Expenses) on-site security for Lot 1 between
the hours of 4 P.M. and 7 A.M on weekdays and twenty-four (24) hours a day on
weekends and holidays.  Notwithstanding the foregoing, Tenant
acknowledges and agrees that it assumes sole responsibility for security at the
Premises for its agents, employees, invitees, licensees, contractors, guests and
visitors and will provide such systems and personnel for same including, without
limitation, while such person(s) are using the Common Area, as it deems
necessary or appropriate and at its sole cost and
expense.  Notwithstanding anything to the contrary contained in this
Lease, neither Landlord nor any of the Landlord Parties (as defined in
Section 7.07 below) shall be liable in any manner for any security
personnel, services, procedures or equipment in, at, on or about the Premises,
the Building, Lot 1 or the Project (whether or not provided by Landlord) or for
the failure of the same to prevent or control, or to apprehend anyone suspected
of, personal injury, property damage or any criminal conduct in, on or about the
Building, Lot 1 or the Project.




Section
5.05                      Rules and
Regulations




Landlord
may from time to time promulgate reasonable and nondiscriminatory rules and
regulations applicable for the care and orderly management of the Premises, Lot
1 or the Project and/or its Common Area.  Such rules and regulations
shall be binding upon Tenant on the tenth (10th) business day after Tenant
receives a written copy thereof, and Tenant agrees to thereafter abide by such
rules and regulations.  No rules and regulations shall require Tenant
to pay additional Rent nor shall any such rules and regulations apply
retroactively.  A copy of the initial Rules and Regulations is
attached hereto as Exhibit G.  If
there is a conflict between the rules and regulations and any of the provisions
of this Lease, the provisions of this Lease shall prevail.  If
Landlord acts reasonably, in  good faith, and uniformly enforces the
rules and regulations, then Landlord shall not be responsible for the violation
of any such rules and regulations against each of the tenants by any person,
including, without limitation, Tenant or its employees, agents, invitees,
licensees, guests, visitors or contractors.




Section
5.06                      LEED Certification
Requirements




Tenant
acknowledges and agrees that it is obligated to comply fully and timely with the
certification requirements (the “LEED Certification
Requirements”) promulgated by the U.S. Green Building Council in order
for the Building and Premises to be certified as “Leadership in Energy and
Environmental Design for Commercial Interiors (LEED-CI)” (and any
revisions,




21


supplements
or successor plans thereto) at Tenant’s sole cost and expense to achieve the
certifications and goals described therein for at least a silver rating, and
that failure to do so will (i) constitute a material default hereunder, and (ii)
expose Landlord to possible penalties and damages to which Tenant’s indemnity
obligations under the Lease shall apply. Tenant shall fully cooperate with
Landlord and Landlord’s designated LEED consultant to assist Landlord in
obtaining LEED certification for the Premises on Landlord and/or Tenant’s
behalf.




Section
5.07                      TDM
Requirements




Tenant
acknowledges and agrees that Tenant has reviewed and analyzed the Moffett Towers
Transportation Demand Management Plan (the “TDM Plan”) approved by the
City of Sunnyvale, California and understands that it is obligated to comply
fully and timely with the approved TDM Plan (and any revisions, supplements or
successor plans thereto) at Tenant’s sole cost and expense to achieve the
certifications and goals described therein, and that failure to do so will (i)
constitute a material default hereunder, and (ii) expose Landlord to possible
penalties and damages to which Tenant’s indemnity obligations under the Lease
shall apply.




ARTICLE
VI




MAINTENANCE,
REPAIRS AND ALTERATIONS




Section
6.01                      Maintenance of Premises and
Building




(a)           Throughout
the Lease Term, Tenant, at its sole cost and expense, shall keep, maintain,
repair and replace the Premises and every part thereof (except as provided in
6.01(b) below, and also except for maintenance, repairs or replacement costs
caused solely by an act of negligence or intentional misconduct by Landlord
during the Lease Term, subject to Section 7.06 below) and all improvements
and appurtenances in the Premises, including, without limitation, all interior
walls, all doors and windows, all wall surfaces and floor coverings, all
Alterations, additions and improvements installed by or on behalf of Tenant
during the Lease Term, sewer, plumbing, electrical, lighting, heating,
ventilation and cooling systems, fixtures and equipment exclusively servicing
the Premises to the point of connection with the base Building systems, all fire
sprinklers, all fire safety and security systems, fixtures and equipment
exclusively servicing the Premises, all wiring, and all glazing, in the same
good order, condition and repair as they are in on the Delivery Date, or as they
may be improved after the Delivery Date, normal wear and tear, casualty,
condemnation, obsolescence and Landlord’s obligations hereunder
excepted.  Notwithstanding the foregoing, if Landlord is responsible
for construction of the improvement under the Work Letter, then for the first
twelve (12) months of the Lease Term Tenant shall not be responsible for the
repair or any latent defects in such improvements that Landlord was required to
construct to the extent that such defects existed as of the Commencement
Date.




(b)           At
all times during the Lease Term, Landlord, at its sole cost and expense, shall
promptly repair all defects in the exterior walls (including all exterior glass
which is damaged by structural defects in such exterior walls) and foundation
and all other structural portions of the Premises and the
Building.  At all times during the Lease Term, Landlord shall
maintain, repair and replace the Common Area elements of the Building, those
portions of the base Building systems not exclusively servicing the Premises,
and the exterior walls, structural walls, supporting pillars, foundations, and
structural portions of the roof and roof membrane of the




22


Building.  All
costs and expenses incurred by Landlord in connection with the foregoing
obligations shall be included in Operating Expenses subject to the terms of
Section 4.05(b); provided, however, if such maintenance, repair or replacement
is due to the acts, omissions or negligence of Tenant or any Tenant Parties (as
defined in Section 7.07 below), then Landlord shall notify Tenant in
writing and if Tenant fails to make such repairs within thirty (30) days of its
receipt of such notice, then Landlord shall nevertheless make such repairs at
Tenant’s expense, and Tenant, within thirty (30) days (or, in the case of
emergencies, twenty-four (24) hours after receipt of such notice) after receipt
of an invoice and reasonable supporting documentation, shall pay to Landlord all
reasonable out-of-pocket costs and expenses of any such repairs, together with
accrued interest at the Agreed Rate from the date of Landlord’s
payment.  Tenant shall give Landlord written notice of any needed
repairs which are the obligation of Landlord hereunder; provided, however, that
Tenant’s failure to provide such notice shall not be deemed a waiver by
Tenant.  It shall then be the obligation of Landlord, after receipt of
such notice, to perform the same within thirty (30) days (or within
twenty-four (24) hours in the event of an emergency) after such notice;
provided, however, that if the nature of the repairs is such that more than
thirty (30) days are reasonably required for performance, then Landlord
shall not be deemed to be in default hereunder if Landlord commences such
repairs within said thirty (30) day (or twenty-four (24) hour period in the
event of an emergency) period and thereafter diligently completes them and
provided further, that for purposes of this sentence “commences” includes
material steps taken by Landlord to investigate, design, consult, bid or seek
permit or other governmental approval in connection with such
repair.  Should Landlord default, as provided in Section 12.03
below, in its obligation to make any of the repairs assumed by it hereunder with
respect to the Premises or Building and if such repairs shall be reasonably
necessary to Tenant’s use and occupancy of the Premises, Tenant shall have the
right to perform such repairs, in which event Landlord, within thirty (30)
days after written demand accompanied by detailed invoice(s), shall pay to
Tenant the reasonable, actual out-of-pocket costs expended by Tenant for such
repairs together with accrued interest at the Agreed Rate from the date of
Tenant’s payment, provided that nothing herein shall be deemed to create a right
of setoff or withholding by Tenant of Base Rent or Additional Rent or any other
amounts due herein.  Landlord grants Tenant a license, effective
during the Lease Term, to enter upon those portions of the Premises and the
Building to which access is reasonably necessary for Tenant to take such
action.  Landlord shall not be liable to Tenant for any damage to
person or property as a result of any failure to timely perform any of its
obligations with respect to the repair, maintenance or replacement of the
Premises, the Building, Lot 1 or the Project or any part thereof, and Tenant’s
sole right and remedy (together with its rights under Section 12.03 below)
shall be the performance of said repairs by Tenant with the right of
reimbursement from Landlord, all in accordance with the terms of this
Section 6.01(b).  Tenant hereby expressly waives all rights under
and benefits of Sections 1941 and 1942 of the California Civil Code or under any
law, statute or ordinance on the same subject now or hereafter in effect to make
repairs and offset the cost of same against Rent or to withhold or delay any
payment of Rent or any other of its obligations hereunder as a result of any
default by Landlord under this Section 6.01(b).




(c)           Tenant
agrees to keep the interior of the Premises clean and in sanitary condition as
required by the health, sanitary and police ordinances and regulations of any
political subdivision having jurisdiction and to remove all trash and debris
which may be found in the Premises.  Tenant further agrees to keep the
interior surfaces of the Premises, including, without limitation, windows,
floors, walls, doors, showcases and fixtures clean and neat in
appearance.




23


Tenant
may contract directly with the janitorial company used by Landlord as of the
Commencement Date to service the Building in order to provide janitorial
services to the Premises, in which case, Landlord shall have no obligation to
provide janitorial services to the Premises.  No agreement entered
into by Tenant and Landlord’s janitorial company shall impose any obligation or
additional cost on Landlord or otherwise bind Landlord.




(d)           If
Tenant refuses or neglects to commence (as defined above) such repairs and/or
maintenance for which Tenant is responsible under this Article VI within a
thirty (30) day period (or within twenty-four (24) hours in the event
of an emergency) after written notice from Landlord and thereafter to diligently
prosecute the same to completion, then Landlord, upon at least 24 hours prior
written notice (except in an emergency when no such notice shall be required),
may enter the Premises and cause such repairs and/or maintenance to be made, and
Landlord shall not be responsible to Tenant for any loss or damage occasioned
thereby, and Tenant, within thirty (30) days after receipt of an invoice,
shall pay to Landlord all reasonable, our-of-pocket third party costs and
expenses of any such repairs and/or maintenance, together with accrued interest
at the Agreed Rate from the date of Landlord’s payment.




Section
6.02                      Maintenance of Common
Areas




At all
times during the Lease Term, Landlord shall maintain, repair and replace all
features, facilities and improvements in, on or about the Building Common Areas,
the Lot 1 Common Areas and the Amenities Parcel, landscaping, curbs, walkways,
driveways, roadways, parking areas, and lighting, sprinkler, drainage, sewer and
plumbing systems, fixtures and equipment.  Landlord’s obligations
herein shall be performed in a manner to maintain the Building Common Areas, and
the Lot 1 Common Areas in a first class condition at reasonably prudent cost and
expense.  All costs and expenses incurred by Landlord in connection
with the foregoing obligations shall be included in Operating Expenses except as
otherwise provided in Section 4.05(b); provided, however, if such maintenance,
repair or replacement is due to the acts, omissions or negligence of Tenant or
any Tenant Parties, then Landlord shall nevertheless make such repairs at
Tenant’s expense, and Tenant, within thirty (30) days after receipt of an
invoice, shall pay to Landlord all out-of-pocket costs and expenses of any such
repairs, together with accrued interest at the Agreed Rate from the date of
Landlord’s payment.




Section
6.03                      Alterations, Additions and
Improvements




No
alterations, additions, or improvements (“Alterations”) shall be made to
the Premises by Tenant without the prior written consent of Landlord, which
shall not be unreasonably withheld, conditioned or delayed; provided, however,
that Tenant, without Landlord’s prior written consent, but upon not less than
ten (10) business days prior written notice to Landlord, may make
Alterations (including removal and rearrangement of prior Alterations) which
(a) do not adversely affect any systems or equipment of the Building, Lot 1
or the Project, (b) do not adversely affect the structural integrity or any
structural components of the Building, Lot 1 or the Project, and (c)  do
not involve the expenditure of more than Seventy-Five Thousand and No/100
Dollars ($75,000.00) in the aggregate during any twelve (12) month
period.  As a condition to Landlord’s obligation to consider any
request for consent hereunder, Tenant hereby agrees to pay Landlord upon demand
for the reasonable out-of-pocket third party costs and expenses of consultants,
engineers, architects and others for reasonable review of plans and
specifications




24


and for
monitoring the construction of any proposed Alterations.  Landlord may
require Tenant to remove any such Alterations at the expiration or sooner
termination of the Lease Term and to restore the Premises to their prior
condition pursuant to the terms of Section 17.09 hereof by providing
written notice to Tenant at the time Landlord responds to Tenant’s request for
Landlord’s consent to the Alteration.  If Landlord states in its
response that it will not require removal, then Tenant shall not be required to
remove the applicable Alterations.  All Alterations to be made to the
Premises shall be designed by and made under the supervision of a California
licensed architect and/or California licensed structural engineer (each of whom
has been approved by Landlord, with such approval not being unreasonably
withheld, conditioned or delayed) and shall be made in accordance with plans and
specifications which have been furnished to and approved by Landlord in writing
prior to commencement of work.  All Alterations shall be constructed
and installed, at the sole cost and expense of Tenant, by California licensed
contractors approved by Landlord, in compliance with the terms and conditions of
the Work Letter, including but not limited to the “Specifications” and
“Requirements” set forth in Schedules One and Two thereof, along with all
applicable laws and any relevant LEED Certification Requirements, and in good
and workmanlike manner, and shall have been approved in writing by the City of
Sunnyvale and any other applicable governmental agencies, to the extent such
approval is required.  Subject to Landlord’s right to require Tenant
to remove Alterations in accordance with this Section 6.03 (in which case
Tenant shall retain ownership thereof), all Alterations, including, without
limitation, all lighting, electrical, heating, ventilation, air conditioning and
full height partitioning, drapery and carpeting installations made by Tenant,
together with all property that has become an integral part of the Premises,
shall not be deemed trade fixtures and shall become the property of Landlord at
the expiration or sooner termination of the Lease.  Tenant shall
retain title to all furniture and trade fixtures placed on the
Premises.  Within thirty (30) days after completion of any
Alterations, Tenant shall provide Landlord with (A) a complete set of both
hard copies and CAD drawings of “as built” plans for such Alterations, and
(B) a statement of all final costs of design, demolition, construction and
installation of such Alterations.




Section
6.04                      Covenant Against
Liens




Tenant
shall not allow any liens arising from any act or omission of Tenant to exist,
attach to, be placed on, or encumber Landlord’s or Tenant’s interest in the
Premises, the Building or the Project, or any portion of either, by operation of
law or otherwise.  Tenant shall not suffer or permit any lien of
mechanics, material suppliers, or others to be placed against the Premises, the
Building or the Project, or any portion of either, with respect to work or
services performed or claimed to have been performed for Tenant or materials
furnished or claimed to have been furnished to Tenant or the
Premises.  Landlord has the right at all times to post and keep posted
on the Premises any notice that it considers necessary for protection from such
liens.  At least seven (7) days before beginning construction of
any Alterations, Tenant shall give Landlord written notice of the expected
commencement date of that construction to permit Landlord to post and record a
notice of nonresponsibility.  If any such lien attaches or if Tenant
receives notice of any such lien, Tenant shall cause the lien to be released and
removed of record, by recordation of a lien release bond or otherwise, within
twenty (20) days after receipt of notice thereof.  Despite any
other provision of this Lease, if the lien is not released and removed within
twenty (20) days after Tenant’s receipt of notice of such lien, then
Landlord may immediately take all action necessary to release and remove the
lien, without any duty to investigate the




25


validity
of such lien.  All expenses (including reasonable attorney fees and
the cost of any bond) incurred by Landlord in connection with a lien incurred by
Tenant or its removal shall be considered Additional Rent under this Lease and
be immediately due and payable by Tenant.  Notwithstanding the
foregoing, if Tenant shall, in good faith, contest the validity of any such
lien, claim or demand, then Tenant shall, at its sole expense, defend and
protect itself, Landlord and the Premises, the Building, Lot 1 or the Project
against the same and shall pay and satisfy any such adverse judgment that may be
rendered thereon before the enforcement thereof.  If Landlord
reasonably elects to participate in or is made a party to any such action,
Tenant shall reimburse Landlord’s reasonable attorneys’ fees and costs within
ten (10) days after demand.




ARTICLE
VII




INSURANCE




Section
7.01                      Property/Rental Insurance
for Premises




At all
times during the Lease Term, Landlord shall keep the Premises (including the
Tenant Improvements, but excluding any Alterations or other property required to
be insured by Tenant pursuant to Section 7.02 below), the Building and Lot
1, insured against loss or damage by fire and those risks normally included in
special form (causes of loss) property insurance.  In addition, then
Landlord may keep the Premises (including the Tenant Improvements, but excluding
any Alterations or other property required to be insured by Tenant pursuant to
Section 7.02 below), the Building and Lot 1 insured against,
(i) earthquake and earthquake sprinkler leakage, (ii) flood,
(iii) loss of rents (including scheduled rent increases) and extra expenses
for eighteen (18) months, (iv) boiler and machinery, (v) fire damage
legal liability form, including waiver of subrogation, and (vi) such other
perils as either Landlord’s lender shall require or Landlord, in its prudent,
good-faith judgment, shall deem reasonable for the protection of the Building
and Lot 1.  The amount of such insurance shall not be less than one
hundred percent (100%) of replacement cost and shall be subject to
commercially reasonable deductibles chosen by Landlord.  Insurance
shall include a Building Ordinance and Increased Cost of Construction
Endorsement insuring the increased cost of reconstructing the Premises and the
Building, Lot 1 due to the need to comply with applicable statutes, ordinances
and requirements of all municipal, state and federal authorities now in force,
or which may be in force hereafter.  Tenant shall pay Tenant’s Share
of any deductibles associated with the Project within thirty (30) days after
receipt of an invoice.  All premiums for all such insurance shall be
included in Insurance Expenses recoverable by Landlord in accordance with
Article IV.




Section
7.02                      Property Insurance for
Fixtures and Inventory




At all
times during from and after the Delivery Date through and including the
expiration or earlier termination of this Lease, Tenant shall, at its sole
expense, maintain special form (causes of loss) property insurance, which
includes the same coverage as required of Landlord in Section 7.01 above,
on any trade fixtures, furnishings, merchandise, equipment, artwork or other
personal property in or on the Premises, and on all Alterations (whether or not
presented to Landlord for its consent).  The amount of such insurance
shall not be less than one hundred percent (100%) of replacement cost, with
commercially reasonable deductibles, and Landlord shall not have any
responsibility, nor pay any cost, for maintaining any insurance required by this
Section 7.02.  Tenant shall pay all deductibles under such
policies in the event of a loss.




26


Notwithstanding
the foregoing, Tenant shall have the right to self insure loss to any of the
items described in this Section 7.02.




Section
7.03                      Landlord’s Liability
Insurance




During
the Lease Term, Landlord shall maintain a policy or policies of commercial
general liability insurance covering Landlord (and such others as designated by
Landlord) against claims and liability for bodily injury, personal injury and
property damage (including loss of use thereof) on our about the Building, Lot 1
or the Project, with combined single limit coverage in an amount to be
reasonably determined by Landlord; provided that if such policy is a blanket
policy that covers properties (other than the Building, Lot 1 or the Project)
owned by Landlord, only that portion allocable to the Building or the Project,
as the case may be, shall be payable hereunder.  All premiums for all
such insurance shall be included in Insurance Expenses recoverable by Landlord
in accordance with Article IV.




Section
7.04                      Tenant’s Liability
Insurance




At all
times during from and after the Delivery Date through and including the
expiration or earlier termination of this Lease, Tenant shall obtain and keep in
force a policy or policies of commercial general liability insurance covering
Tenant, and naming Landlord and any Landlord Parties and any lenders or ground
landlords whose names are provided to Tenant as additional insureds, against
claims and liability for bodily injury, personal injury and property damage
(including loss of use thereof) based upon, involving or arising out of
(a) Tenant’s operations and contractual liabilities, or (b) ownership,
use, occupancy or maintenance of the Premises and all areas appurtenant
thereto.  Such insurance shall be on an “occurrence” basis providing a
single limit coverage in amount of not less than Ten Million
Dollars ($10,000,000) per occurrence; provided, however, the limits of such
insurance shall not limit the liability of Tenant nor relieve Tenant of any
obligation under this Lease.  Such insurance shall include (i) a
Broad Form endorsement covering the provisions of this Lease and the performance
by Tenant of its indemnity agreements contained in this Lease, including,
without limitation, Section 7.07 below, (ii) coverage for Additional
Lessors of Premises, and (iii) coverage for “amendment of the pollution
exclusion” to provide coverage for damage caused by heat, smoke, fumes from a
fire.  All insurance to be carried by Tenant shall be primary to, and
not contributory with, any similar insurance carried by Landlord (whose
insurance shall be considered excess insurance only).




Section
7.05                      Evidence of
Insurance




Tenant
shall furnish to Landlord prior to its initial entry to the Premises pursuant to
Section 5.03(a), above, and at least fifteen (15) days prior to the
expiration date of any policy, evidence reasonably acceptable to Landlord that
the property insurance and liability insurance required to be maintained by
Tenant is in full force and effect for the twelve (12) month period
following such expiration date; that Landlord has been named as an additional
insured to the extent of contractual liability assumed in this Lease, including,
without limitation, Section 7.07 below; and that all such policies will not
be canceled unless the issuer has endeavored to provide thirty (30) days’
prior written notice of the proposed cancellation to Landlord.  The
insurance shall be issued by insurer carriers approved by Landlord; provided,
however, that such approval shall not be unreasonably withheld so long as
Tenant’s insurance carrier has a Best’s Insurance




27


Guide
rating not less than A- VIII and is licensed to do business in
California.  Landlord shall furnish to Tenant reasonable evidence of
its insurance coverage required hereunder within fifteen (15) after demand
made not more than once in any calendar year.




Section
7.06                      Mutual Waiver of Claims and
Subrogation Rights




Landlord
and Tenant hereby release and relieve the other, and waive their entire claim of
recovery for loss or damage to property arising out of or incident to any peril
covered by the insurance policies required to be carried pursuant to Sections
7.01 and 7.02 above (but only to the extent of insurance proceeds either
actually received by the waiving party or which would have been received if the
required insurance had been carried by the waiving party), when such property
constitutes the Project, or is in, on or about the Project, whether or not such
loss or damage is due to the negligence of Landlord or Tenant, or their
respective agents, employees, guests, licensees, invitees, or
contractors.  Tenant and Landlord waive all rights of subrogation
against each other on behalf of, and shall obtain a waiver of all subrogation
rights from, all property and casualty insurers referenced above.




Section
7.07                      Indemnification and
Exculpation




(a)           Except
as otherwise provided in Section 7.07(c) below, Tenant shall indemnify,
defend, protect and hold free and harmless Landlord, its partners, subpartners,
members, parent organizations, affiliates, subsidiaries, principal shareholders
and other constituent entities, and their respective officers, directors,
servants, employees, agents and independent contractors (collectively, “Landlord Parties”) from any
and all liability, claims, loss, damages, causes of action (whether in tort or
contract, law or equity, or otherwise), costs, expenses, charges, assessments,
fines, and penalties of any kind, including without limitation, reasonable
attorneys’, experts’ and arbitrators’ fees and costs and court costs, incurred
to the extent arising from (i) any cause in, on or about the Premises, (ii)
any acts, omissions or negligence of Tenant, its partners, subpartners, members,
parent organizations, affiliates, subsidiaries, principal shareholders, other
constituent entities or any other person or entity claiming by, through or under
Tenant, or any of their respective officers, directors, servants, employees,
agents, independent contractors, licensees, invitees, visitors or guests
(collectively, “Tenant
Parties”), in, on or about Lot 1 or the Project during the Lease Term,
and (iii) any breach or default in the timely observance or performance of
any obligation on Tenant’s part to be observed or performed under this
Lease.




(b)           Because
Landlord is required to maintain insurance on the Building and Lot 1, and
because Tenant compensates Landlord for such insurance as part of Tenant’s Share
of Insurance Expenses and because of the waivers of subrogation in Section 7.06,
Landlord shall indemnify, defend, protect and hold free and harmless Tenant and
each of the Tenant Parties from any and all liability, claims, loss, damages,
causes of action (whether in tort or contract, law or equity, or otherwise),
costs, expenses, charges, assessments, fines, and penalties of any kind,
including without limitation, reasonable attorneys’, experts’ and arbitrators’
fees and costs and court costs, for damage to property outside the Premises, but
occurring on Lot 1,  to the extent such claims result from the grossly
negligent acts or willful misconduct of Landlord or Landlord’s Parties in
connection with their respective activities in, on, or about the Building or Lot
1, except to the extent that such claim is for damage to the tenant improvements
or Tenant’s




28


personal
property, fixtures, furniture or equipment and is covered by insurance that
Tenant is required to obtain under this Lease (or would have been covered had
Tenant carried the insurance required under this Lease).




(c)           Notwithstanding
the foregoing, Tenant’s indemnity contained in Section 7.07(a) above shall
not apply to Landlord’s negligence or willful misconduct.




(d)           Tenant
hereby waives all claims against Landlord for damages to goods, wares and
merchandise and all other personal property in, on or about the Premises and for
injury or death to persons in, on or about the Premises, from any cause arising
at any time to the fullest extent permitted by law.  Notwithstanding
the provisions of Section 7.07(b) above, or any other provision of this
Lease, in no event shall any Landlord Parties be liable under any circumstances
for (i) injury or damage to, or interference with, Tenant’s business
(including, but not limited to, loss of profits, loss of rents or other
revenues, loss of business opportunity, loss of goodwill or loss of use) or
other consequential damages, in each case however occurring, or (ii) any
damage which is or could be covered by the insurance Tenant is required to carry
under this Lease.




ARTICLE
VIII




DAMAGE OR
DESTRUCTION




Section
8.01                      Repair of Damage by
Landlord




Tenant
agrees to notify Landlord in writing promptly of any damage to the Premises
resulting from fire, earthquake or other event (a “Casualty”).  If the
Premises are damaged by a Casualty, any Common Areas of the Building or Lot 1
providing access to or parking for the Premises are damaged by Casualty to the
extent that Tenant does not have reasonable access to or parking for the
Premises, or the Casualty results in the Premises not being provided with
essential utilities (including, without limitation, electricity, water, HVAC and
passenger elevator service), and if neither Landlord nor Tenant has elected to
terminate this Lease under this Article VIII, then Landlord shall promptly and
diligently repair such damage and restore Common Areas, the Building (including
the Building’s systems), the Premises (but not Tenant’s improvements,
Alterations, personal property or trade fixtures therein), the Tenant
Improvements, and/or Tenant’s parking facilities to substantially the same
condition as existed before the Casualty, except for modifications request by
building codes and other laws.  If Tenant requests that Landlord make
any modifications to the Tenant Improvements in connection with the rebuilding,
Landlord may condition those modifications on:  (a) confirmation by
Landlord’s contractor that the modifications shall not materially increase the
time needed to complete the tenant improvements, or (b) an agreement by Tenant
that the modification shall not extend the Rent abatement period.




Section
8.02                      Repair
Notice.




Landlord
shall, within sixty (60) days after the date of the Casualty, provide written
notice to Tenant indicating the anticipated period for repairing the Casualty
(the “Repair
Notice”).  The Repair Notice shall be accompanied by a
statement executed by a licensed contractor or architect mutually approved by
the parties, certifying the contractor’s or architect’s




29


opinion
regarding the anticipated period for repairing the Casualty.  The
Repair Notice shall also state, if applicable, Landlord’s election to either
repair or to terminate the Lease under Section 8.03, below.




Section
8.03                      Landlord’s Option To Repair
or Terminate.




Landlord
may elect either to terminate this Lease or to effectuate repairs
if:  (a) the Repair Notice estimates that the period for repairing the
Casualty exceeds two hundred seventy (270) days from the date of the Casualty;
(b) the estimated repair costs of the Premises or the Building, even though
covered by insurance, exceeds fifty percent (50%) of the full replacement cost,
or (c) Landlord does not receive sufficient insurance proceeds (not taking into
account the deductible portion of the insurance policy) to complete Landlord’s
restoration obligations hereunder, and such shortfall is not due to Landlord’s
failure to obtain the property insurance required by Section 7.01 hereof or any
intentionally wrongful act of Landlord or any Landlord Party that results in
such insurance proceeds being unavailable.  Landlord’s election shall
be stated in the Repair Notice.  Despite any other provisions of this
Article 8, Landlord may not elect to terminate this Lease under this Article 8
unless Landlord elects also to terminate the leases of all similarly situated
tenants, provided that Landlord has the right under each applicable lease to
terminate it based on the extent of the Casualty.




Section
8.04                      Tenant’s Option to
Terminate.




If the
Repair Notice indicates that the anticipated period for repairing the Casualty
exceeds two hundred seventy (270) days from the date of Casualty, then Tenant
may elect to terminate this Lease by providing written notice (“Tenant’s Termination Notice”)
within thirty (30) days after receiving the Repair Notice.  If Tenant
does not elect to terminate within this thirty (30) day period, then, subject to
the next succeeding sentence, Tenant shall be considered to have waived the
option to terminate pursuant to this Section 8.04.




Section
8.05                      Rent Abatement Due to
Casualty.




Landlord
and Tenant agree that, to the extent Landlord receives rental abatement
insurance proceeds therefore (or would have received such proceeds if: (i)
Landlord had maintained the insurance required of Landlord pursuant to Section
7.01 hereof, or (ii) Landlord or a Landlord Party had not performed an
intentionally wrongful act that results in such insurance being unavailable),
Tenant’s Rent shall fully abate during the period beginning on the later of (a)
the date of the Casualty, or (b) the date on which Tenant ceases to occupy the
Premises and end on the date of the completion of Landlord’s restoration
obligations (the “Casualty
Abatement Period”).  If, however, Tenant is able to occupy and
does occupy a portion of the Premises, then Rent shall be abated during the
Casualty Abatement Period only for the portion of the Premises not occupied by
Tenant.  Subject to Section 8.04. the Rent abatement provided in this
Section 8.05 is Tenant’s sole remedy due to the occurrence of the
Casualty.




Section
8.06                      Damage Near End of Lease
Term.




Notwithstanding
any other provision of this Article 8, if the Premise or the Building or the
Common Areas necessary for parking and/or access to the Premises are destroyed
or damaged by a Casualty during the last twelve (12) months of the Lease Term,
then Landlord and




30


Tenant
shall each have the option to terminate this Lease by giving written notice to
the other of the exercise of that option within thirty (30) days after the date
of the Casualty; provided, however, that Landlord may not elect to terminate
this Lease under this Article 8 unless Landlord elects also to terminate the
Lease of all similarly situated tenants, provided that Landlord has the right
under each applicable lease to terminate it based on the extent of the
Casualty.  If Tenant is not then in default beyond all applicable
notice and cure periods under this Lease, Tenant may negate Landlord’s election
to terminate under this Section 8.06 by electing, within ten (10) business days
after receipt of Landlord’s termination notice, to exercise an unexercised
Option.  If Tenant negates Landlord’s election, then this Lease shall
continue in effect unless Landlord has the right to, and elects to, terminate
this Lease under Section 8.03, above.




Section
8.07                      Effective Date of
Termination; Rent Apportionment.




If
Landlord or Tenant elects to terminate this Lease under this Article 8, then the
termination shall be effective thirty (30) days after deliver of the notice of
such election.  Tenant shall pay Rent, properly apportioned, up to the
date of the Casualty.  After the effective date of the termination,
Landlord and Tenant shall be discharged from all future obligations under this
Lease, except those provisions that, by their express terms, survive the
expiration or earlier termination of this Lease.




Section
8.08                      Waiver of Civil Code
Remedies.




Tenant
hereby expressly waives any rights to terminate this Lease upon damage or
destruction to the Premises, including without limitation any rights pursuant to
the provisions of Section 1932, Subdivisions 1 and 2 and Section 1933,
Subdivision 4, of the California Civil Code, as amended from time to time, and
the provisions of any similar law hereinafter enacted.




Section
8.09                      No Abatement of
Rentals.




Except as
otherwise expressly provided in Section 8.05 above, the Base Rent,
Additional Rent and other charges due under this Lease shall not be reduced or
abated by reason of any damage or destruction to the Premises, and Landlord
shall be entitled to all proceeds of the insurance maintained pursuant to
Section 7.01 above.  Landlord shall not be liable for any
inconvenience or annoyance to Tenant or its visitors, or injury to Tenant’s
business (including, without limitation, loss of business, profits or goodwill),
resulting in any way from any damage or the repair thereof.




Section
8.10                      No Liability for Tenant’s
Alterations or Personal Property.




In no
event shall Landlord have any liability for, nor shall it be required to repair
or restore, any injury or damage to Tenant’s Alterations or personal property or
to any other personal property of others in or upon the Premises, the Building
or Lot 1 or the Project.




31


ARTICLE
IX




REAL
PROPERTY TAXES




Section
9.01                      Payment of
Taxes




(a)           Throughout
the Lease Term, Landlord shall pay all real property taxes, including, without
limitation, any escaped or supplemental tax and any form of real estate tax or
assessment, general, special, ordinary or extraordinary, and any license, fee,
charge, excise or imposition imposed, assessed or levied on or with respect to
the Building or the Project or any part thereof, or any legal or equitable
interest of Landlord therein, by any Federal, State, County, City or other
political subdivision or public authority having the direct or indirect power to
tax, including, without limitation, any improvement district or any community
facilities district, as well as any government or private cost sharing agreement
assessments made for the purpose of augmenting or improving the quality of
services and amenities normally provided by government agencies (“Real Property Taxes”) and any
tax, fee, charge, imposition or excise described in subsection 9.01(b)
below.  Notwithstanding anything to the contrary contained herein,
“Real Property Taxes” shall not include any net income taxes, franchise taxes,
or any succession, estate or inheritance taxes of Landlord or any penalties due
to Landlord’s late or non-payment of any Real Property Taxes.  All
such payments shall be made by Tenant to Landlord on an estimated basis, as is
described in Section 4.04 hereof; provided, however, that, at Landlord’s
election, such payments may be made by Tenant directly to the taxing authority
pursuant to Section 4.04 hereof no later than thirty (30) days after
Landlord’s delivery to Tenant of a statement of the real property tax due (but
in no event later than ten (10) days prior to the date such real property taxes
would be delinquent), together with a copy of the applicable tax bill except to
the extent such amounts are included in estimated real property taxes paid
monthly pursuant to Section 4.04(b).




(b)           Except
as otherwise expressly provided herein below, if at any time during the Lease
Term, the State of California or any political subdivision of the state,
including any county, city, city and county, public corporation, district, or
any other political entity or public corporation of this state, levies or
assesses against Landlord a tax, fee, charge, imposition or excise on rents
under leases of space in the Building or Lot 1 or the Project, the square
footage of the Building or the Project, the act of entering into leases of space
in the Building or Lot 1 or the Project, or the occupancy of tenants of the
Building or Lot 1 or the Project, or levies or assesses against Landlord any
other tax, fee, or excise, however described, including, without limitation, a
so-called value added, business license, transit, commuter, environmental or
energy tax fee, charge or excise or imposition related to the Building or Lot 1
or the Project, as a direct substitution in whole or in part for, or in addition
to, any Real Property Taxes (collectively, “Additional Real Property
Taxes”), then the same shall be included in “Real Property Taxes” for all
purposes hereunder; provided that, notwithstanding the foregoing, if any such
Additional Real Property Taxes pertain solely to (i) Rent under this Lease
(as opposed to under all leases of space in the Building or Lot 1 or the
Project), (ii) the square footage of the Premises (as opposed to the square
footage of the Building or Lot 1 or the Project), (iii) the act of entering
into this Lease, or (iv) the occupancy of Tenant (as opposed to all tenants
or occupants of the Building or Lot 1 or the Project) (as opposed to all leases
of space in the Building or Lot 1 or the Project), then such Additional Real
Property Taxes shall not be included in “Real Property Taxes,” and shall be the
sole obligation and liability of Tenant and shall be paid by Tenant, as
Additional Rent, ten (10) days before delinquency (or, if such Additional
Real Property Taxes are levied




32


against
Landlord or Landlord’s property, then Landlord shall pay the same before
delinquency and Tenant shall reimburse Landlord the amount of the same within
ten (10) days after written demand accompanied by a copy of Landlord’s tax
bill); and further provided that, if any such Additional Real Property Taxes
pertain not only to Lot 1 or the Project, but to additional property of Landlord
located outside Lot 1 or the Project as well, then “Real Property Taxes” shall
only include a portion of such Additional Real Property Taxes, which portion
shall be computed upon the amounts and at the rates that otherwise would be
payable if Lot 1 or the Project were the only property of Landlord.




(c)           Landlord
shall provide Tenant with copies of all tax and assessment bills on the Premises
promptly upon Landlord’s receipt of Tenant’s written request therefor, and
Landlord shall also provide to Tenant evidence of payment promptly upon
Landlord’s receipt of Tenant’s written request therefor.




(d)           With
respect to taxes and assessments which may lawfully be paid in installments,
“Real Property Taxes” for any period during the Lease Term shall include only
such portion of the same which is payable within such period and any interest
payable thereon computed (whether or not such is the case) as if Landlord had
elected to pay the same over the longest period permitted by law.




(e)           If
Landlord shall obtain any abatement or refund on account of any Real Property
Taxes or other Additional Real Property Taxes as to which Tenant shall have made
payments hereunder, then Landlord shall promptly refund to Tenant an equitable
portion of any such abatement or refund, after deducting therefrom the
reasonable costs and expenses incurred by Landlord in obtaining such abatement
or refund.




Section
9.02                      Proration for Partial
Years




If any
Real Property Taxes paid by Tenant shall cover any period prior to the
Commencement Date or after the Expiration Date, then Tenant’s Share of such Real
Property Taxes shall be prorated on a day-for-day basis to cover only the period
of time within the applicable tax fiscal year during which this Lease shall be
in effect.




Section
9.03                      Personal Property
Taxes




(a)           Tenant
shall pay prior to delinquency all taxes imposed, assessed against and levied
upon trade fixtures, furnishings, equipment and all other personal property of
Tenant contained in the Premises or elsewhere.  When possible, Tenant
shall cause said trade fixtures, furnishings, equipment and all other personal
property to be assessed and billed separately from the real property of
Landlord.




(b)           If
any of Tenant’s said personal property shall be assessed with Landlord’s real
property, Tenant shall pay to Landlord, as Additional Rent, the amount of taxes
attributable to Tenant’s personal property within ten (10) days after
receipt of a written statement thereof.




(c)           If
Tenant shall fail to pay any such taxes, Landlord shall have the right to pay
the same, in which case Tenant shall repay such amount to Landlord, as
Additional Rent, with Tenant’s next installment of Rent, together with interest
at the Agreed Rate.




33


ARTICLE
X




UTILITIES




(a)           HVAC.  Tenant
shall pay, prior to delinquency and throughout the Lease Term, all charges for
water, gas, heating, ventilation, air conditioning, cooling, sewer, telephone,
electricity, garbage, janitorial service, landscaping and all other services and
utilities supplied to the Premises, including Tenant’s Share of any such
services or utilities which are not separately metered for or billed to the
Premises.  Landlord may, at Tenant’s expense, install devices which
separately meter Tenant’s consumption of utilities.  All charges for
utilities and services which are separately metered to the Premises or which are
provided directly to Tenant or the Premises by utility companies or third party
providers shall be paid directly by Tenant to such utility companies or third
party providers prior to delinquency.  All charges for utilities and
services for the sole benefit of Tenant or the Premises which are billed to and
paid by Landlord directly shall be paid by Tenant to Landlord within ten (10)
days after receipt of an invoice therefor.  All other charges for
utilities and services shall be included in Operating Expenses recoverable by
Landlord in accordance with Article IV.  The disruption, failure, lack
or shortage of any service or utility with respect to the Premises, the
Building, Lot 1 or the Project due to any cause whatsoever shall not affect any
obligation of Tenant hereunder, and Tenant shall faithfully keep and observe all
the terms, conditions and covenants of this Lease and pay all Rent due
hereunder, all without diminution, credit or deduction; provided, however, if
such disruption, failure, lack or shortage is caused by Landlord’s failure to
observe or perform its obligations hereunder, then, within thirty (30) days
after receipt of written notice from Tenant specifying such failure, Landlord
shall initiate the cure of such failure and thereafter shall diligently
prosecute said cure to completion.




(b)           Generator
Service.




(i)           Throughout
the Lease Term, Landlord shall provide to Tenant Tenant’s Building Share of
power from the Generator for the purpose of providing emergency electrical
service to the Premises (hereinafter referred to as the “Generator
Service”).  Throughout the Lease Term, Landlord agrees to
supply fuel to the Generator and to maintain, repair, use and operate the
Generator in good working order.




(ii)           Landlord
shall have the right, by giving reasonable advance written notice to Tenant, to
temporarily suspend service of the Generator and/or any systems, services or
utilities serving the Generator for so long as may become necessary in order to
allow the making of any and all repairs, replacements, changes, modifications,
improvements, or substitutions to the Generator.  If Landlord
temporarily suspends service of the Generator pursuant to, and in accordance
with, this section, the period for which such service is suspended shall be
reasonable with respect to the particular reason for such temporary suspension
of service and, except as may otherwise be expressly provided in the Lease with
respect to any suspension of services provided to Tenant, Landlord shall not be
subject to any liability nor shall Tenant be entitled to any compensation or
abatement of the Base Rent or Additional Rent under the Lease with respect to
the temporary suspension of service set forth in this section. Landlord agrees
to use commercially reasonable efforts to resume the service of the Generator
and/or the systems, services or utilities serving the Generator as soon as
possible. Tenant is hereby authorized to arrange for the visual inspection and
performance of preventative maintenance tests or




34


emergency
power tests (a/k/a pull the plug test) by licensed technicians consistent with
Tenant’s practices, provided that no such inspection or test shall be performed
by Tenant without the presence of Landlord’s agent, employee or other
representative.




(iii)           If
Landlord temporarily suspends service of the Generator in accordance the above
and such suspension is reasonably expected to last more than twenty-four (24)
hours, then Landlord shall, at Landlord’ sole cost and expense, install,
operate, maintain and use an outdoor truck mounted portable generator or other
temporary generator (the “Temporary Generator”) to
provide Tenant with a continuous supply of backup power available from such
Temporary Generator in an amount at least equal to their allocation of the
Generator capacity throughout the period that Landlord temporarily suspends the
service of the Generator and/or any systems, services or utilities serving the
Generator until the date that Landlord resumes such service.




(c)           After-Hours
Service.  Throughout the Lease Term, Landlord agrees to provide
Tenant with HVAC service during nonbusiness hours upon reasonable advance verbal
notice. Tenant shall reimburse Landlord for its actual cost to provide such
after-hour service within thirty (30) days of Tenant’s receipt of Landlord’s
invoice.  If more than one tenant directly benefits from the
after-hour services, then the cost shall be allocated proportionately between or
among the benefiting tenants based upon the amount of time each tenant benefits
and the square footage each lease.




ARTICLE
XI




ASSIGNMENT
AND SUBLETTING




Section
11.01                                Landlord’s Consent
Required




Except as
provided in Section 11.02, Tenant shall not voluntarily or by operation of
law assign, transfer, mortgage, sublet, license or otherwise transfer or
encumber all or any part of Tenant’s interest in this Lease or in the Premises
or any part thereof, without Landlord’s prior written consent; provided,
however, Landlord shall not unreasonably withhold, condition or delay its
consent to an assignment of this Lease or a subletting of all or a portion of
the Premises.  Landlord shall respond in writing to Tenant’s request
for consent hereunder in a timely manner and any attempted assignment, transfer,
mortgage, encumbrance, subletting or licensing without such consent shall be
void, and shall constitute a breach of this Lease.  Tenant shall
reimburse Landlord upon demand for Landlord’s reasonable costs and expenses
(including reasonable attorneys’ fees, architect fees and engineering fees)
involved in reviewing any request for consent whether or not such consent is
granted; provided, however, in no event shall such amount exceed
$10,000.




Section
11.02                                Tenant
Affiliates




Tenant,
without Landlord’s prior written consent, but upon not less than ten (10)
business days prior written notice to Landlord, may assign this Lease, or sublet
all or any portion of the Premises, to any business entity which controls, is
controlled by, or is under common control with Tenant, or to any business entity
resulting from the merger or consolidation with Tenant, or to any person or
entity which acquires a controlling interest of Tenant’s stock if Tenant is
no




35


longer a
publicly traded company (“Affiliate”), provided that
said assignee or subtenant (i) has a net worth equal to or greater than that of
Tenant as of the date of this Lease, and (ii) assumes, in full, the obligations
of Tenant under this Lease arising from and after such
assignment.  Any portion of the Premises which is assigned or sublet
to an Affiliate of Tenant shall not be included in the calculation of subleased,
assigned or transferred Rentable Area for the purposes of Section 11.06 and
Section 17.26.




Section
11.03                                No Release of
Tenant




Regardless
of whether or not Landlord’s consent is required or obtained, no subletting or
assignment (including, without limitation, to an Affiliate) shall release Tenant
of Tenant’s obligations under this Lease or alter the primary liability of
Tenant to pay the Rent and to perform all other obligations to be performed by
Tenant hereunder.  The acceptance of Rent by Landlord from any other
person shall not be deemed consent to any subsequent assignment or
subletting.  In the event of any default in the payment of Rent or
performance of any obligation hereunder by any assignee or successor of Tenant,
Landlord may proceed directly against Tenant without the necessity of exhausting
remedies against said assignee or successor.




Section
11.04                                Excess
Rent




In the
event Landlord shall consent to a sublease or an assignment, Tenant shall pay to
Landlord, as Additional Rent, fifty percent (50%) of all net proceeds
(including the fair market value of all non-cash consideration) collected or
received by Tenant from a subtenant or assignee which are in excess of the Base
Rent and Additional Rent due and payable with respect to the subject space
pursuant to Article IV for the time period encompassed by the sublease or
assignment term, after first deducting reasonable leasing commissions paid by
Tenant with respect to such sublease or assignment.  With respect to
an assignment, Tenant shall make such payment on the effective date of such
assignment.  With respect to a sublease, Tenant shall make such
payment on a monthly basis on the first day of each calendar month after Tenant
receives such amount from the subtenant.  Landlord expressly
acknowledges and agrees that it shall not be entitled to consideration received
by Tenant in connection with an assignment of this Lease or an sublease of the
Premises to an Affiliate.




Section
11.05                                Information to be
Provided




Tenant’s
written request to Landlord for consent to an assignment or subletting or other
form of transfer shall be accompanied by (a) the name and legal composition
of the proposed transferee; (b) the nature of the proposed transferee’s
business to be carried on in the Premises; (c) the material terms and
provisions of the proposed transfer agreement (including, without limitation, a
description of the portion of the Premises to be transferred, and the effective
date of the proposed transfer); (d) a copy of all executed and/or proposed
documentation pertaining to the proposed transfer; and (e) such financial and
other reasonable information as Landlord may promptly request concerning the
proposed transferee.




36


Section
11.06                                Landlord’s Recapture
Rights




(a)           Landlord’s Recapture
Rights




Notwithstanding
any other provision of this Article 11, if Tenant desires to assign, sublease or
otherwise transfer to any person or entity (other than an Affiliate) any
interest in this Lease or the entire Premises or any part thereof, then Tenant
shall deliver to Landlord a written request for consent, together with all of
the information specified in Section 11.05 above.  If such
transfer (together with all other assignments, subleases or transfers then in
effect) would affect seventy five percent (75%) of the Rentable Area of the
Premises in the aggregate (such total affected portion of the Rentable Area of
the Premises being referred to herein as the “Recapture Space”) for more
than fifty percent (50%) of the remainder of the Lease Term, then Landlord shall
have the option to recapture all, but not less than all, of the Recapture Space,
which option shall be exercisable only by giving written notice to Tenant
(“Recapture Notice”)
within ten (10) days after Landlord’s receipt of Tenant’s request for
consent.  A timely Recapture Notice shall terminate this Lease with
respect to the Recapture Space effective as of the date specified in Tenant’s
request for consent as the effective date of the proposed
transfer.  Landlord’s recapture rights shall be subject to the rights
of any assignee, subtenant or other transferee of Tenant, as set forth in any
assignment, sublease or other transfer agreement to which Landlord previously
has consented, but subject to the terms and conditions set forth in Landlord’s
consent thereto; any such assignment, sublease or other transfer agreement shall
be assigned to Landlord as of the effective date of Landlord’s
recapture.




(b)           Consequences of
Recapture




If
Landlord recaptures less than the entire Premises pursuant to
Section 11.06(a) above, then the Rent reserved herein shall be prorated on
the basis the of the Rentable Area of the portion of the Premises retained by
Tenant in proportion to the Rentable Area contained in the
Premises.  This Lease, as so amended, shall continue thereafter in
full force and effect.  Either party may require written confirmation
of the amendments to this Lease necessitated by Landlord’s recapture of the
Recapture Space.  If Landlord recaptures the Recapture Space, then
Landlord, at Landlord’s sole expense, shall promptly (but in all events prior to
Landlord tendering possession of the Recapture Space to a third party)
construct, paint, and furnish any partitions required to segregate the Recapture
Space from the remaining Premises retained by Tenant, as well as arrange for
separate provision of utilities and services (including, at Landlord’s option,
installation of separate meters if and to the extent the premises are served by
separately metered utilities) (collectively, the “Demising
Improvements”).  Landlord agrees that the Demising Improvements
shall be completed pursuant to plans and specifications reasonably acceptable to
Tenant and that Landlord shall use commercially reasonable efforts to minimize
any interference with Tenant’s use and enjoyment of the Premises during the
construction of any Demising Improvements.




37


ARTICLE
XII




DEFAULTS;
REMEDIES




Section
12.01                                Defaults




The
occurrence of any one or more of the following events shall constitute a
material default and breach of this Lease by Tenant:




(a)           The
vacation or abandonment of all or a substantial portion of the Premises by
Tenant, or the commission of waste at the Premises, or the making of an
assignment, subletting or other transfer in violation of Article XI; provided
however, abandonment and/or vacation shall be considered to not occur if the
Premises are maintained and occupied to the extent necessary to maintain the
insurance on each and every portion of the Premises;




(b)           The
failure by Tenant to make any payment of Base Rent as and when due, if such
failure continues for a period of five (5) business days after written
notice thereof from Landlord to Tenant.  In the event that Landlord
serves Tenant with a Notice to Pay Rent or Quit in the form required by
applicable law, such Notice shall constitute the notice required by this
paragraph, provided that the cure period stated in such Notice shall be five (5)
business days rather than the statutory three (3) days;




(c)           The
failure by Tenant to make any payment of any other sum owing under this Lease as
and when due, if such failure continues for a period of five (5) business
days after written notice thereof from Landlord to Tenant.  In the
event that Landlord serves Tenant with a Notice to Pay Rent or Quit in the form
required by applicable law, such Notice shall constitute the notice required by
this paragraph, provided that the cure period stated in such Notice shall be
five (5) business days rather than the statutory three (3) days;




(d)           Tenant’s
failure to provide (i)  any supplemental letter of credit as required by
Section 2.04(c) or (ii) any instrument or assurance as required by
Section 7.05 or (iii) estoppel certificate as required by
Section 15.01 or (iv) any document subordinating this Lease to a
Lender’s deed of trust as required by Section 17.13, if any such failure
continues for ten (10) business days after written notice of the
failure.  In the event Landlord serves Tenant with a Notice to Perform
Covenant or Quit in the form required by applicable law, such Notice shall
constitute the notice required by this paragraph, provided that the cure period
stated in such Notice shall be ten (10) business days rather than the statutory
three (3) days;




(e)           The
failure by Tenant to observe or perform any of the covenants, conditions or
provisions of this Lease to be observed or performed by Tenant, other than
described in paragraphs (a), (b), (c) or (d) of this Section 12.01, if
such failure continues for a period of thirty (30) days after written
notice thereof from Landlord to Tenant; provided, however, that if the nature of
Tenant’s default is such that more than thirty (30) days are reasonably
required for its cure, then Tenant shall not be deemed to be in default if
Tenant commences such cure within said thirty (30) day period and
thereafter diligently prosecutes such cure to completion.  In the
event Landlord serves Tenant with a Notice to Perform Covenant or Quit in the
form required by applicable law, such Notice shall constitute the notice
required by




38


this
paragraph, provided that the cure period stated in such Notice shall be thirty
(30) days rather than the statutory three (3) days;




(f)           (i) The
making by Tenant of any general arrangement or assignment for the benefit of
creditors; (ii) the filing by Tenant of a voluntary petition in bankruptcy
under Title 11 U.S.C. or the filing of an involuntary petition against Tenant
which remains uncontested for a period of sixty (60) days; (iii) the
appointment of a trustee or receiver to take possession of substantially all of
Tenant’s assets located at the Premises or of Tenant’s interest in this Lease;
or (iv) the attachment, execution or other judicial seizure of
substantially all of Tenant’s assets located at the Premises or of Tenant’s
interest in this Lease, provided, however, in the event that any provisions of
this Section 12.01(e) is contrary to any applicable law, such provision
shall be of no force or effect; and




(g)           The
discovery by Landlord that any financial statement given to Landlord by Tenant,
or any future guarantor of Tenant’s obligations hereunder, was materially
false.




Section
12.02                                Remedies




In the
event of any such material default and breach by Tenant, Landlord may at any
time thereafter, and without limiting Landlord in the exercise of any right or
remedy which Landlord may have by reason of such default and
breach:




(a)           Terminate
Tenant’s right to possession of the Premises by any lawful means, in which case
this Lease shall terminate and Tenant shall immediately surrender possession of
the Premises to Landlord.  In such event Landlord shall be entitled to
recover from Tenant all damages incurred by Landlord by reason of Tenant’s
default including, but not limited to, (i) the cost of recovering
possession of the Premises including reasonable attorney’s fees related thereto;
(ii) the worth at the time of the award of any unpaid Rent that had been
earned at the time of the termination, to be computed by allowing interest at
the Agreed Rate but in no case greater than the maximum amount of interest
permitted by law, (iii) the worth at the time at the time of the award of
the amount by which the unpaid Rent that would have been earned between the time
of the termination and the time of the award exceeds the amount of unpaid Rent
that Tenant proves could reasonably have been avoided, to be computed by
allowing interest at the Agreed Rate but in no case greater than the maximum
amount of interest permitted by law, (iv) the worth at the time of the
award of the amount by which the unpaid Rent for the balance of the Lease Term
after the time of the award exceeds the amount of unpaid Rent that Tenant proves
could reasonably have been avoided, to be computed by discounting that amount at
the discount rate of the Federal Reserve Bank of San Francisco at the time of
the award plus one percent (1%), (v) any other amount necessary to
compensate Landlord for all the detriment proximately caused by Tenant’s failure
to perform obligations under this Lease, including, but not limited to,
reasonable brokerage commissions and advertising expenses, expenses of
remodeling the Premises for a new tenant (whether for the same or a different
use), and any market-rate concessions made to obtain a new tenant, and
(vi) any other amounts, in addition to or in lieu of those listed above,
that may be permitted by applicable law.




(b)           Maintain
Tenant’s right to possession as provided in Civil Code Section 1951.4
(Landlord may continue lease in effect after Tenant’s breach and
abandonment




39


and
recover rent as it becomes due, if Tenant has the right to sublet or assign,
subject only to reasonable limitations), in which case this Lease shall continue
in effect whether or not Tenant shall have abandoned the Premises.  In
such event Landlord shall be entitled to enforce all of Landlord’s rights and
remedies under this Lease, including the right to recover the Rent as it becomes
due hereunder.




(c)           Pursue
any other remedy now or hereafter available to Landlord under the laws or
judicial decisions of the state of California.




Section
12.03                                Default by
Landlord




Landlord
shall not be in default under this Lease unless Landlord fails to perform
obligations required of Landlord within thirty (30) days after receipt of
written notice from Tenant to Landlord and to the holder of any first mortgage
or deed of trust covering the Premises whose name and address shall have
theretofore been furnished to Tenant in writing, specifying that Landlord has
failed to perform such obligation; provided, however, that if the nature of
Landlord’s obligation is such that more than thirty (30) days are
reasonably required for performance then Landlord shall not be in default if
Landlord commences performance within such thirty (30) day period and
thereafter diligently prosecutes the same to completion.  In the event
Landlord does not commence performance of any maintenance or repair required of
Landlord hereunder within the thirty (30) day period provided herein, and
in the event that such maintenance or repair relates to improvements which are
wholly within the Premises (not including any Building core systems or
equipment), Tenant may perform such maintenance or repair, and Tenant shall be
entitled to prompt reimbursement by Landlord of Tenant’s reasonable costs and
expenses in taking such action, together with interest thereon at the Agreed
Rate.  Tenant waives any right to terminate this Lease or to vacate
the Premises on Landlord’s default under this Lease.  Tenant’s sole
remedy on Landlord’s default is an action for damages or injunctive or
declaratory relief.




Section
12.04                                Late
Charges




Tenant
and Landlord hereby acknowledges that late payment by either of them to the
other of Rent or any other sums due hereunder will cause the recipient of such
amounts to incur costs not contemplated by this Lease, the exact amount of which
will be extremely difficult to ascertain. Such costs include, but are not
limited to, processing and accounting charges and late charges which may be
imposed on Landlord by the terms of any mortgage or trust deed covering the
Premises. Accordingly, if any installment of Rent or any other sum due from
Tenant or Landlord shall not be received by the other or its designated agent
within five (5) business days after such amount is due and owing, the
delinquent party shall pay a late charge equal to five percent (5%) of such
amount each time a late charge is payable during the Lease Term. The parties
hereby agree that such late charge represents a fair and reasonable estimate of
the costs the recipient will incur by reason of late payment. Acceptance of such
late charge shall in no event constitute a waiver of default with respect to
such overdue amount, nor prevent either party from exercising any of the other
rights and remedies granted hereunder.




40


Section
12.05                                Landlord’s Right to Perform
Tenant’s Obligations




Except as
otherwise expressly stated in this Lease, all obligations to be performed or
observed by Tenant under this Lease shall be performed or observed by Tenant at
Tenant’s expense and without any reduction of Rent.  So long as
Landlord provides Tenant with at least thirty (30) days’ prior written notice
(or whatever other notice and grace period is specifically provided for in this
Lease), Landlord may perform or observe any obligation of Tenant which is in
default hereunder if such default is not cured within such thirty (30) day
period, without waiving Landlord’s other rights and remedies for Tenant’s
failure to perform or observe any obligations under this Lease and without
releasing Tenant from any such obligations.  Within thirty (30) days
after receiving a statement from Landlord, Tenant shall pay to Landlord the
amount of third-party out-of-pocket expenses reasonably incurred by Landlord in
performing or observing Tenant’s obligation.




ARTICLE
XIII




CONDEMNATION
OF PREMISES.




Section
13.01                                Total
Condemnation




If the
entire Premises or the portions of the Building or the Project required for
reasonable access to, or the reasonable use of, the Premises shall be
permanently taken by condemnation at any time during the Lease Term (whether by
exercise of governmental power or the sale or transfer by Landlord to any
condemnor under threat of condemnation or while proceedings for condemnation are
pending), then this Lease shall terminate as of the earlier of (a) the date on
which title vests in the condemnor, or (b) the date Tenant is dispossessed of
the Premise by the condemnor.  Upon such condemnation, all Rent shall
be paid up to the date of the termination of the Lease.




Section
13.02                                Partial
Condemnation




Except as
otherwise provided in this Section 13.02, if less than all of the Premises
is taken by condemnation during the Lease Term (whether by exercise of
governmental power or the sale or transfer by Landlord to any condemnor under
threat of condemnation or while proceedings for condemnation are pending), then
this Lease shall remain in full force and effect.  If a partial taking
leaves the Premises unfit for the conduct of Tenant’s business, then Tenant
shall have the right to terminate this Lease effective as of the earlier of the
date (a) title vests in the condemnor, or (b) on which Tenant is dispossessed by
the condemnor.  Tenant may elect to exercise its right to terminate
this Lease pursuant to this Section 13.02, if at all, by delivering written
notice to Landlord within thirty (30) days after receipt of notice of such
condemnation.  All Rent shall be paid up to the date of termination,
and Tenant shall have no claim against Landlord for the value of the unexpired
portion of the Lease Term.  If this Lease shall not be terminated,
then the Rent reserved herein shall be prorated on the basis the of the Rentable
Area of the portion of the Premises retained by Tenant in proportion to the
Rentable Area contained in the Premises immediately prior to the partial
taking.  If Tenant’s continued use of the Premises requires
alterations and repair by reason of a partial taking, all such alterations and
repair shall be made by Landlord at Landlord’s expense.  Tenant waives
all rights it may have under California




41


Code of
Civil Procedure Section 1265.130 or otherwise, to terminate this Lease
based on partial condemnation.




Section
13.03                                Award to
Tenant




In the
event of any condemnation (whether total or partial), Tenant shall have the
right to claim and recover from the condemning authority such compensation as
may be separately awarded or recoverable by Tenant for loss of Tenant’s business
fixtures, or equipment belonging to Tenant immediately prior to the
condemnation.  In the event of any condemnation (whether total or
partial), the entire condemnation award shall belong to Landlord (including,
without limitation, any “bonus value” of the leasehold estate- OR -amount attributable to
any excess of the market value of the Premises for the remainder of the Lease
Term over the then present value of the Rent payable for the remainder of the
Lease Term), and Tenant shall have no right to recover from Landlord or from the
condemning authority for any claims arising out of such taking; provided,
however, notwithstanding the foregoing, as long as the award payable to Landlord
is not reduced thereby, Tenant shall have the right to make a separate claim in
the condemnation proceeding for, and to recover from the condemning authority,
such compensation as may be separately awarded or recoverable by Tenant for
(a) loss of Tenant’s business fixtures, or equipment belonging to Tenant
immediately prior to the condemnation, (b) the taking of the unamortized
value (using the Lease Term as the amortization period) of any Tenant
Improvements paid for by Tenant which are not removed by Tenant, and (c)
Tenant’s moving expenses.




ARTICLE
XIV




ENTRY BY
LANDLORD




Subject
to Tenant’s reasonable security measures (which may include having a
representative of Tenant present) (except in cases of emergency), Tenant shall
permit Landlord and its employees, agents and contractors to enter the Premises
and all parts thereof upon twenty-four (24) hours notice, which may be oral (or
without notice in the case of an emergency where there is a reasonable risk of
the loss of life or property) at all reasonable times solely for any of the
following purposes:  (i) to inspect the Premises; (ii) to maintain the
Premises; (iii) to make such repairs to the Premises as Landlord is obligated or
may elect to make; (iv) to make repairs, alterations or additions to any other
portion of the Building; (v) to show the Premises and to post “For Lease”
signs for the purposes of re-letting the Premises during the last
twelve (12) months of the Lease Term; (vi) to show the Premises to
prospective lenders or purchasers of the Building; and (vii) to post notices of
nonresponsibility.  Provided that Landlord uses commercially
reasonable efforts to promptly finish any work for which it entered and
otherwise uses commercially reasonable effort to minimize interference to
Tenant’s use and enjoyment of the Premises, Landlord shall have such right of
entry without any abatement of Rent to Tenant.  Tenant hereby waives
any claims for damages or for any injuries or inconvenience to or interference
with Tenant’s business, lost profits, any loss of occupancy or quiet enjoyment
of the Premises, and any other loss occasioned thereby.




42


ARTICLE
XV




ESTOPPEL
CERTIFICATE




Section
15.01                                Estoppel
Certificate




Either
party (the “Certifying Party”) shall, at any time upon not less than
fifteen (15) days’ prior written notice from the other (the “Requesting
Party”), execute, acknowledge and deliver to the Requesting Party a statement in
substantially the same form and substance as Exhibit F attached
hereto in writing (i) certifying, if true, that this Lease is unmodified
and in full force and effect (or, if modified, stating the nature of such
modification and certifying, if true, that this Lease, as so modified, is in
full force and effect) and the date to which the Rent and other charges are paid
in advance, if any; (ii) acknowledging, if true, that there are not, to the
Certifying Party’s knowledge, any uncured defaults on the part of Landlord or
Tenant hereunder, or specifying such defaults if any are known or claimed; and
(iii) certifying or acknowledging, if true, such other reasonably
ascertainable facts that are covered by the Lease terms as are requested by any
prospective lender, purchaser of the Building or other third party designated by
the Requesting Party.  Any such statement may be conclusively relied
upon by any prospective lender, purchaser of the Building or the third party
designated by the Requesting Party.




Section
15.02                                Failure to
Deliver




A
Certifying Party’s failure to timely execute, acknowledge and deliver such
statement within the applicable notice and grace periods provided for herein
shall constitute a default hereunder.




ARTICLE
XVI




LIMITATIONS
ON LANDLORD’S LIABILITY




If
Landlord shall fail to perform any covenant, term or condition of this Lease
upon Landlord’s part to be performed, and if as a consequence of such default
Tenant shall recover a money judgment against Landlord, such judgment shall be
satisfied only out of the interest of Landlord in the Building including,
without limitation, the rental income and proceeds from sale as well as any
insurance or condemnation proceeds received by Landlord.  Neither
Landlord nor any Landlord Parties shall have any personal liability therefor,
and Tenant hereby expressly waives and releases such personal liability on
behalf of itself and all persons claiming by, through or under
Tenant.  The limitations of liability contained in this Article XVI
shall inure to the benefit of Landlord’s and all Landlord Parties’ present and
future partners, beneficiaries, officers, directors, trustees, shareholders,
agents and employees, and their respective partners, heirs, successors and
assigns.  Under no circumstances shall any present or future partner
of Landlord (if Landlord is a partnership), or trustee or beneficiary (if
Landlord or any partner of Landlord is a trust), have any liability for the
performance of Landlord’s obligations under this Lease.




43


ARTICLE
XVII




GENERAL
PROVISIONS




Section
17.01                                Severability




The
invalidity of any provision of this Lease shall in no way affect the validity of
any other provision hereof.




Section
17.02                                Agreed Rate Interest on
Past-Due Obligations




Except as
expressly herein provided, any amount due to either party not paid when due
shall bear interest at the Bank of America prime rate plus two percent (2%)
(the “Agreed
Rate”).  Payment of such interest shall not excuse or cure any
default by Tenant under this Lease. Despite any other provision of this Lease,
the total liability for interest payments shall not exceed the limits, if any,
imposed by the usury laws of the State of California.  Any interest
paid in excess of those limits shall be refunded to the payor by application of
the amount of excess interest paid against any sums outstanding in any order
that payee requires.  If the amount of excess interest paid exceeds
the sums outstanding, the portion exceeding those sums shall be refunded in cash
to the payor by the payee.




Section
17.03                                Time of
Essence




Time is
of the essence in the performance of all obligations under this
Lease.




Section
17.04                                Submission of
Lease




The
submission of this Lease to Tenant shall be for examination purposes only, and
does not and shall not constitute a reservation of or option for Tenant to
lease, or otherwise create any interest of Tenant in the Premises or any other
premises situated in Lot 1 or the Project.  The return to Landlord of
Tenant-executed copies of this Lease shall not be binding upon Landlord,
notwithstanding any preparation or anticipatory reliance or expenditures by
Tenant or any time interval, until Landlord has in fact executed and actually
delivered a fully-executed copy of this Lease to Tenant.  This
document shall not be effective as a lease or otherwise until executed and
delivered by both Landlord and Tenant.




Section
17.05                                Incorporation of Prior
Agreements and Exhibits




This
Lease (including Exhibits A, B, C, D, E, F, G, H, I, J and K) contains all
agreements of the parties with respect to any matter mentioned
herein.  No prior agreement or understanding pertaining to any such
matter shall be effective.  This Lease may be modified in writing
only, signed by the parties in interest at the time of the modification. Except
as otherwise stated in this Lease, Tenant hereby acknowledges that neither the
Landlord nor any employees or agents of the Landlord has made any oral or
written warranties or representations to Tenant relative to the condition or use
by Tenant of said Premises and Tenant acknowledges that Tenant assumes all
responsibility regarding the Occupational Safety Health Act, the legal use and
adaptability of the Premises and the compliance thereof with all applicable laws
and regulations in effect during the Lease Term except as otherwise specifically
stated in this Lease.




44


Section
17.06                                Notices




(a)           Written
Notice




Any
notice required or permitted to be given hereunder shall be in writing and shall
be given by a method described in paragraph (b) below and shall be
addressed to Tenant or to Landlord, as the case may be, at the respective
address noted below next to the signature of such party. Either party may, by
notice to the other party, specify a different address for notice
purposes.  A copy of all notices required or permitted to be given
hereunder to Tenant or to Landlord, as the case may be, shall be concurrently
transmitted to such other persons at such addresses as may hereafter be
designated by Tenant or Landlord, respectively, by notice to the other party;
provided, however, no delay or failure of delivery to any such persons shall
affect the validity of the delivery of such notice to Tenant or to Landlord, as
the case may be.




(b)           Methods of
Delivery




(i)           When
personally delivered to the recipient, notice is effective upon
delivery.  Delivery to the person apparently designated to receive
deliveries at the subject address (e.g., a receptionist) shall constitute
personal delivery if made during business hours.




(ii)           When
mailed by certified mail with return receipt requested, notice is effective upon
receipt if delivery is confirmed by a return receipt.




(iii)           When
delivered by recognized overnight courier service (e.g., Federal Express,
Airborne, United Parcel Service, DHL WorldWide Express) with charges prepaid or
charged to the sender’s account, notice is effective upon delivery if delivery
is confirmed by the courier service




(iv)           When
delivered by facsimile to the last facsimile number of the recipient known to
the party giving notice, notice is effective on receipt as long as (A) a
duplicate copy of the notice is promptly given by first-class or certified mail
or by overnight delivery, or (B) the receiving party delivers a written
confirmation of receipt.  Any notice given by facsimile shall be
considered to have been received on the next business day if it is received
after 5:00 p.m. (recipient’s time) on a nonbusiness day.




(c)           Refused, Unclaimed or
Undeliverable Notices




Any
correctly addressed notice that is refused, unclaimed, or undeliverable because
of an act or omission of the party to be notified shall be considered to be
effective as of the first date that the notice was refused, unclaimed, or
considered undeliverable by the postal authorities, messenger, or overnight
courier service.




Section
17.07                                Waivers




No waiver
of any provision hereof shall be deemed a waiver of any other provision hereof
or of any subsequent breach of the same or any other provisions.  Any
consent to, or approval of, any act shall not be deemed to render unnecessary
the obtaining of consent to or approval of any subsequent act.  The
acceptance of Rent hereunder by Landlord shall not be a




45


waiver of
any preceding breach by Tenant of any provision hereof, other than the failure
of Tenant to pay the particular Rent so accepted, regardless of Landlord’s
knowledge of such preceding breach at the time of acceptance of such
Rent.




Section
17.08                                Recording




Neither
Landlord nor Tenant shall execute, acknowledge or deliver to the other a “short
form” memorandum of this Lease for recording purposes.




Section
17.09                                Surrender of Possession;
Holding Over




(a)           At
the expiration or earlier termination of this Lease, Tenant shall remove all of
Tenant’s equipment, trade fixtures, supplies, wall decorations, signage and
other personal property from the Premises, the Building and the Common Area and
shall vacate the Premises, and surrender to Landlord possession of the Premises
and all improvements therein, broom clean and in substantially as good order and
condition as when the Tenant’s Work is complete, excepting only normal wear and
tear, damage due to casualty not caused by Tenant or Tenant’s agents, employees
or contractors, condemnation and Landlord’s obligations
hereunder.  Except for such normal wear and tear, damage due to
casualty not caused by Tenant or Tenant’s agents, employees or contractors,
condemnation and Landlord’s obligations Tenant shall:  (i) repair
all damage to the Premises, the interior and exterior of the Building and the
Common Area caused by Tenant’s removal of its property; (ii) patch and
refinish, to Landlord’s reasonable satisfaction, all penetrations made by Tenant
or any Tenant Parties to the roof, floor, interior or exterior walls or ceiling
of the Premises and the Building, whether or not such penetrations were made
with Landlord’s approval; (iii) repair or replace all damaged ceiling
tiles, wall coverings and floor coverings to the reasonable satisfaction of
Landlord; and (iv) repair all damage caused by Tenant to the exterior
surface of the Building.  Upon the expiration or earlier termination
of this Lease, Landlord may reenter the Premises and remove all persons and
property therefrom.  If Tenant shall fail to surrender to Landlord the
Premises, the Building and the Common Area in the condition required by this
Section 17.09(a) at the expiration or earlier termination of this Lease,
then Landlord, at Tenant’s expense, may remove Tenant’s signs, property and/or
improvements not so removed and make such repairs and replacements not so made
or hire, at Tenant’s expense, independent contractors to perform such
work.  Tenant shall be liable to Landlord for all reasonable
out-of-pocket costs incurred by Landlord in returning the Premises, the Building
and the Common Area to the required condition, together with interest thereon at
the Agreed Rate from the date incurred by Landlord until paid.  Tenant
shall pay to Landlord the amount of all costs so incurred (including, without
limitation, costs of disposal, storage and insurance), together with interest at
the Agreed Rate, within thirty (30) days after receipt of an invoice
therefor.




(b)           If
Tenant, without Landlord’s prior written consent, remains in possession of the
Premises after the expiration of the Lease Term, then such occupancy shall be a
tenancy-at-sufferance on every applicable term, condition and agreement
contained herein (including the payment of Additional Rent), except that monthly
Base Rent shall be payable at a rate equivalent to one hundred fifty percent
(150%) of the higher of (i) Base Rent in effect immediately prior to such
expiration or (ii) the Fair Market Rent for the Premises at such
time.




46


Section
17.10                                Cumulative
Remedies




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




Section
17.11                                Covenants and
Conditions




Each
provision of this Lease to be observed or performed by Tenant shall be deemed
both a covenant and a condition.




Section
17.12                                Binding Effect; Choice of
Law




Subject
to any provisions hereof restricting assignment or subletting by Tenant and
subject to the provisions of Article XVI, this Lease shall bind the parties,
their personal representatives, successors and assigns.  This Lease
shall be governed by the laws of the State of California.




Section
17.13                                Lease to be
Subordinate




Tenant
agrees that this Lease is and shall be, at all times, subject and subordinate to
(a) the lien of any mortgage, deed of trust or other encumbrances now
existing against the Premises, the Building or Lot 1 or the Project, including
all modifications, renewals, and extensions thereof, and (b) all ground or
underlying leases now existing affecting the Building or Lot 1 or the Project,
including all modifications, renewals, and extensions
thereof.  Landlord agrees that it shall be an express condition
precedent to Tenant’s obligations under this Lease that Landlord, at its sole
cost and expense, provide Tenant with subordination, non-disturbance and
attornment agreements (“SNDA”) substantially in the
form of Exhibit
E from the holder of each mortgage, deed of trust or other encumbrances
and the ground lessor under any ground lease within sixty (60) days of the
mutual execution and delivery of this Lease; provided, however, that if Landlord
fails to deliver the SNDA within such time period, then Tenant shall thereafter
have the right to terminate this Lease until such time as the SNDA is delivered
to Tenant fully executed and acknowledged by Landlord and the holder of each
mortgage, deed of trust or other encumbrances and the ground lessor under any
ground lease.   If, after the mutual execution and delivery of
this Lease, Landlord elects to encumber the Property with a new mortgage, deed
of trust or encumbrance or enter into a ground lease affects the Building
or  Lot 1, then Tenant shall execute and deliver any commercially
reasonable documents confirming the subordination of this Lease within fifteen
(15) business days after delivery of same by Landlord, so long as the mortgagee,
beneficiary, or ground or underlying Landlord agrees therein that this Lease
will not be terminated if Tenant is not in default beyond all applicable notice
and cure periods following either the foreclosure of any such mortgage, deed or
trust or other encumbrance (or the granting of a deed in lieu thereof) or the
termination of any such ground or underlying lease.  Notwithstanding
any subordination of this Lease, in the event of either the foreclosure of any
such mortgage, deed or trust or other encumbrance (or the granting of a deed in
lieu thereof) or the termination of any such ground or underlying lease, Tenant
shall attorn to, and become the tenant of, the successor to Landlord (i.e., such
mortgagee, beneficiary or other successor to Landlord by foreclosure or deed in
lieu thereof, or such ground or underlying Landlord, as the case may be), at the
option of such successor to Landlord; provided however, in




47


no event
shall any such successor to Landlord (i) be liable for any previous act or
omission of Landlord under this Lease except to cure continuing defaults to the
extent it has been provided with written notice thereof and an opportunity to
cure, (ii) be subject to any offset, defense or counterclaim against Landlord
which shall theretofore have accrued to Tenant under this Lease, (iii) 
have any obligation with respect to any security deposit, unless the same shall
have been paid or physically delivered to such successor, or (iv) be bound
by any Rent paid more than one month in advance to Landlord or any prior
landlord or owner.




Section
17.14                                Attorneys’
Fees




In the
event any action or proceeding is brought by any party to enforce or interpret
the provisions of this Lease, or if any other action or proceeding is brought
arising out of or relating to this Lease, the prevailing party in such action or
proceeding shall be entitled to recover the reasonable fees of its attorneys,
experts and arbitrators, and other costs of suit.




Section
17.15                                Signs




(a)           Subject
to the terms of this Section 17.15, throughout the Lease Term, Tenant shall
have the exclusive right, at Tenant’s sole expense, to install and maintain
Tenant’s company name on the Exterior Building Parapet Sign on the Building
located in the location depicted on Exhibit J attached hereto and incorporated
herein, so long as Tenant continues to lease at least three (3) full floors of
the Building and occupies at least fifty percent (50%) of the
Premises.




(b)           Subject
to the terms and conditions of this Section 17.15, throughout the Lease Term
shall the right to install and maintain (i) Tenant’s company name in the top
position on the Project’s pedestrian monument signage, (ii) Tenant’s pro rata
share of the lobby wall signage and Tenant’s company name on the lobby directory
signage in the Building, and (iii) Tenant’s identification sign in the
elevator lobby of the floor on which their main receptionist is
located.  Except as set forth above, Tenant shall not place any
additional signs outside the Premises (or visible from outside the Premises)
without Landlord’s prior written consent, which consent shall not be
unreasonably withheld; provided, however, any such signage shall be subject to
the terms of this Section 17.15.




(c)           Tenant’s
identification signage on the exterior of the Building, in the Project Common
Areas (including the monument signs) and the Building Common Areas and Tenant’s
other signage outside the Premises (or visible from outside the Premises) shall
be referred to herein, collectively, as “Tenant’s
Signage.”  All aspects of Tenant’s Signage, including, but not
limited to, quality, design, color, style, lighting, size and specifications, as
applicable, shall be (i) consistent with Landlord’s signage policy set
forth on Exhibit D attached hereto, (ii) subject to Landlord’s prior
written approval which Landlord will not unreasonably withhold, condition or
delay, (iii) in compliance with all applicable governmental laws,
ordinances, rules, regulations, codes and approvals, and (iv) the Moffett Towers
Multi-Tenant Signage Standards Final dated 9/19/08 as approved by the City of
Sunnyvale, together with any amendments or supplements
thereto.  Tenant shall be responsible, at its sole cost and expense,
for the installation, maintenance, repair and replacement of Tenant’s
Signage.  Upon the expiration or earlier termination of this Lease,
Tenant shall, at Tenant’s sole cost and expense,




48


remove
Tenant’s Signage and repair any damage resulting
therefrom.  Notwithstanding anything to the contrary contained in this
Section 17.15, Landlord, at its election, shall have the right to perform
any and all installation, maintenance, repair, replacement and removal of
Tenant’s Signage and to repair any damage resulting therefrom, in which instance
Tenant shall pay to Landlord upon demand the third-party out-of-pocket
reasonable cost of such installation, maintenance, repair, replacement, removal
and repair within thirty (30) days after receipt of an
invoice.  Tenant shall be responsible, at its sole cost and expense,
for obtaining all governmental approvals for Tenant’s Signage, provided that
Tenant shall not submit any applications or requests for governmental approvals
without first obtaining Landlord’s prior written approval thereof (which
approval shall not be unreasonably withheld, conditioned or delayed), and
provided further that Tenant shall provide written notice to Landlord of all
hearings and meetings with any applicable governmental authority regarding
Tenant’s applications or requests for governmental approvals not later than two
(2) business days prior thereto.  Subject to the foregoing, upon
request by Tenant from time to time, Landlord agrees (at no material cost to
Landlord that Tenant does not agree in advance to reimburse) to reasonably
cooperate with Tenant in connection with Tenant’s efforts to obtain all
governmental approvals for Tenant’s Signage, provided that Landlord shall have
no obligation (and Tenant shall have no right) to agree to or to comply with any
conditions which may be imposed upon Landlord or the Building or Lot 1 or the
Project in connection with any governmental approvals for Tenant’s
Signage.  Tenant hereby acknowledges and agrees that the governmental
approvals for Tenant’s Signage are not conditions to the validity of this Lease,
and in the event Tenant fails to obtain any such approvals, this Lease shall
continue in full force and effect in accordance with its terms, except that
Tenant shall have no right with respect to Tenant’s Signage which is not so
approved.  The rights contained in this Section 17.15 with
respect to Tenant’s Signage shall be personal to the originally named Tenant
herein (“Original
Tenant”) or an Affiliate and may only be exercised by the Original Tenant
or an Affiliate (and not by any other assignee, subtenant or transferee) if the
Original Tenant or an Affiliate then occupies the entire
Premises.  Should the name of Original Tenant be legally changed or
should Tenant’s Signage be assigned to an Affiliate (any such other name
referred to herein as a “New
Name”), Tenant, at its sole cost and expense, shall be entitled to modify
Tenant’s name as the same appears on Tenant’s Signage to reflect Tenant’s New
Name, so long as Tenant’s New Name is not an objectionable name.  As
used herein, the term “Objectionable Name” shall mean
any name which relates to an entity which is of a character or reputation, or is
associated with a political orientation or faction, which is inconsistent with
the quality of the Building or Lot 1 or the Project, or which would otherwise
reasonably offend a landlord of similar Buildings in the vicinity of the
Building.




Section
17.16                                Merger




The
voluntary or other surrender of this Lease by Tenant, or a mutual cancellation
thereof, or a termination by Landlord, shall not work a merger, and shall, at
the option of Landlord, terminate all or any existing subtenancies or may, at
the option of Landlord, operate as an assignment to Landlord of any or all of
such subtenancies.




Section
17.17                                Quiet
Possession




Landlord
covenants that Tenant, upon timely paying the Rent for the Premises and timely
observing and performing all of the covenants, conditions and provisions on
Tenant’s part to be




49


observed
and performed hereunder, shall have quiet possession of the Premises for the
Lease Term, subject to all of the covenants, conditions and provisions of this
Lease.  The foregoing covenant is in lieu of any other covenant
express or implied.




Section
17.18                                Easements




Landlord
reserves to itself the right, from time to time, to grant such easements, rights
and dedications that Landlord deems necessary or desirable, and to cause the
recordation of Parcel Maps and covenants, conditions and restrictions, so long
as such easements, rights, dedications, Maps and covenants, conditions and
restrictions do not unreasonably interfere with Tenant’s use of or access to the
Premises or Tenant’s parking rights granted hereunder.  Tenant shall
sign any of the aforementioned or other documents, and take such other actions,
which are reasonably necessary or appropriate to accomplish such granting,
recordation and subordination of the Lease to same, upon request of Landlord,
and failure to do so within ten (10) business days after a written request
to do so shall constitute a material breach of this Lease, provided that
Landlord shall reimburse Tenant for Tenant’s reasonable out-of-pocket expenses
(including reasonable attorneys’ fees) necessarily incurred in the performance
of Tenant’s obligations under this Section 17.18.




Section
17.19                                Authority




Each
individual executing this Lease on behalf of a corporation, limited liability
company or partnership represents and warrants that he or she is duly authorized
to execute and deliver this Lease on behalf of such entity in accordance with a
duly adopted resolution of the governing group of the entity empowered to grant
such authority, and that this Lease is binding upon said entity in accordance
with its terms.  Each party shall provide the other with a certified
copy of its resolution within thirty (30) days after execution hereof, but
failure to do so shall in no manner (i) be evidence of the absence of
authority or (ii) affect the representation or warranty.




Section
17.20                                Force Majeure
Delays




In any
case where either party hereto is required to do any act (other than the payment
of money), and the performance of such act is prevented, delayed or stopped due
to Acts of God or Nature, war, terrorism, civil commotion, fire, flood or other
casualty, labor difficulties, shortages of labor or materials or equipment,
government regulations, delay by government or regulatory agencies with respect
to approval or permit process, unusually severe weather, the time for
performance of such act (whether designated by a fixed date, a fixed time or a
“reasonable time”) shall be deemed to be extended by the period of such
prevention, delay or stoppage.




Section
17.21                                Hazardous
Materials




(a)           Definition of Hazardous
Materials and Environmental Laws




“Hazardous Materials” means any
chemical, substance, petroleum, pollutant, product, waste or other material of
any nature whatsoever (collectively called “Hazardous Materials”) subject
to regulation pursuant to the Comprehensive Environmental Response, Compensation
and Liability Act, 42 U.S.C. sections 9601, et seq.; the Hazardous Materials
Transportation Act, 49 U.S.C. section 1801, et seq.; the Resource Conservation
and




50


Recovery
Act, 42 U.S.C. section 6901, et seq.; the Toxic Substances Control Act, 15
U.S.C. sections 2601, et seq.; the Clean Air Act, 42 U.S.C. sections 7401 et
seq.; the Clean Water Act, 33 U.S.C. sections 1251, et seq.; the California
Hazardous Waste Control Act, Health and Safety Code sections 25100, et seq.; the
California Hazardous Substances Account Act, Health and Safety Code sections
26300, et seq.; the California Safe Drinking Water and Toxic Enforcement Act,
Health and Safety Code sections 25249.5, et seq.; California Health and Safety
Code sections 25280, et seq. (Underground Storage of Hazardous Substances); the
California Hazardous Waste Management Act, Health and Safety Code sections
25170.1, et seq.; California Health and Safety Code sections 25501. et seq.
(Hazardous Materials Response Plans and Inventory); California Health and Safety
Code sections 25214.9 et seq. (Electronic Waste); or the Porter-Cologne Water
Quality Control Act, California Water Code sections 13000, et seq.; all of the
foregoing as may be amended from time to time; or any other federal, state or
local statute, law, ordinance, resolution, code, rule, regulation, order or
decree regulating, relating to or imposing liability (including, but not limited
to, warning, disclosure, management, storage, disposal, release, response,
removal and remediation costs) or standards of conduct or performance concerning
any Hazardous Material  as now or at any time hereafter may be in
effect (collectively, “Environmental
Laws”).




(b)           Use of Hazardous
Materials




Tenant
shall not cause or permit any Hazardous Materials to be brought upon, kept or
used in, on or about Lot 1 or the Project by Tenant, its agents, employees,
contractors, licensee, guests, visitors or invitees except as such substances
that are required in the ordinary course of Tenant’s business conducted on the
Premises or are otherwise approved by Landlord.  Landlord shall not
unreasonably withhold, condition or delay such consent so long as Tenant
demonstrates to Landlord’s reasonable satisfaction that such Hazardous Materials
and the quantity thereof are necessary or useful to Tenant’s business and will
be used, kept and stored in a manner that complies with all applicable
Environmental Laws.  Tenant shall, at all times, provide any required
warnings or disclosure, and shall use, keep, store, and handle all such
Hazardous Materials in or about Lot 1 or the Project in compliance with all
applicable Environmental Laws.  Tenant shall not treat or dispose of
Hazardous Materials at Lot 1 or the Project.  Tenant shall properly
dispose of Hazardous Materials at an off-site facility in accordance with
Environmental Laws, and shall properly remove all Hazardous Materials used or
brought onto Lot 1 or the Project during the Lease Term from Lot 1 or the
Project prior to the expiration or earlier termination of the
Lease.




51


(c)           Landlord’s Representation
and Warranty.  Except as disclosed by that certain “Phase I
Environmental Site Assessment Parcels 1 and 4 1111 Lockheed Martin Way,
Sunnyvale, California Project No. 05-364-A dated July 28, 2005” prepared by Iris
Environmental on behalf of Landlord’s affiliate, Jay Paul Company, Landlord
represents and warrants to Tenant that as of the Effective Date of this Lease,
to the best of Landlord’s knowledge:  (a) there has been no release
onto or under the Premises, the Building, Lot 1 or the Project of any Hazardous
Material in violation of any Environmental Law, and (b) Landlord has not
received written notice that the Premises, the Building, Lot 1 or the Project
are in violation of any Environmental Law.




(d)           Environmental
Indemnity.




Tenant
agrees to indemnify and hold Landlord harmless from any liabilities, losses,
claims, damages, penalties, fines, attorney fees, expert fees, court costs,
remediation costs, investigation costs, or other expenses resulting from or
arising out of a breach of this Section 17.21 or the use, storage,
treatment, transportation, release, presence, generation, or disposal of
Hazardous Materials on, from or about Lot 1 or the Project, and/or subsurface or
ground water, after the Delivery Date from an act or omission of Tenant, its
agents, employees, invitees, vendors or contractors.




(e)           Remediation
Obligations




If the
presence of Hazardous Materials on the Premises after the Delivery Date is a
result from an act or omission of Tenant (or Tenant’s successors), its agents,
employees, invitees, vendors, contractors, guests, or visitors and such
Hazardous Materials contaminate Lot 1 or the Project or any water or soil
beneath Lot 1 or the Project, Tenant shall promptly take all action necessary or
appropriate to investigate and remedy that contamination, at its sole cost and
expense, provided that Landlord’s consent to such action shall first be
obtained, which consent shall not be unreasonably withheld, conditioned or
delayed.




(f)           Notification




Landlord
and Tenant each agree to promptly notify the other of (i) any release of
Hazardous Materials in, on or about the Premises, the Building or Lot 1, and
(ii) any communication received from any governmental entity concerning
Hazardous Materials or the violation of Environmental Laws that relate to Lot
1.




Section
17.22                                Intentionally
Deleted.




Section
17.23                                Brokers




Landlord
and Tenant represent and warrant to each other that they have had no dealings
with any real estate broker or agent in connection with the negotiation of this
Lease, except for the Broker defined in the Basic Terms, and that they know of
no other real estate broker or agent who is entitled to a commission or finder’s
fee in connection with this Lease.  Each party shall indemnify,
protect, defend, and hold harmless the other party against all claims, demands,
losses, liabilities, lawsuits, judgments, and costs and expenses (including
reasonable attorneys’ fees) for any leasing commission, finder’s fee, or
equivalent compensation alleged to be owning on




52


account
of the indemnifying party’s dealings with any real estate broker or
agent.  Landlord shall pay a commission to the Broker pursuant to the
terms of a separate written agreement.




Section
17.24                                Survival




All
covenants and obligations arising out of this Lease shall survive the expiration
or earlier termination of this Lease and shall remain outstanding until
satisfied in full.




Section
17.25                                Rooftop Communications
Equipment




(a)           Roof
Space.  Landlord agrees to permit Tenant to utilize sufficient
and suitable space on the roof of the Building (“Roof Space”) throughout the
Lease Term and any extensions thereof for the purpose of installing, using,
maintaining or replacing, or cause a carrier, vendor or other operator selected
by Tenant to install, maintain and replace, on the Roof Space at Tenant’s sole
cost and expense, certain telecommunications and other rooftop equipment (“Equipment”).  Landlord
also agrees that Tenant may run cables (“Cables”) related to the use of
such Equipment between the Roof Space and the Premises.  It shall be a
condition precedent to the ability of Tenant to install such Equipment and/or
Cables on the Roof Space that plans and specifications therefore have received
written consent thereto by Landlord, which consent shall not be unreasonably
withheld.  So long as the Equipment and Cables are used for the sole
benefit of Tenant and its assignees, subtenants, guests and invitees in their
operations at the Premises and no third party revenue is derived for such
Equipment and Cables, there shall be no additional monthly rental fees charged
to Tenant for its use of the Roof Space.




(b)           Possession;
Removal.  The Equipment and Cables shall remain the property of
the Tenant or Tenant’s contractors at all times.  Tenant shall, at its
sole cost and expense, remove such Equipment and Cables upon the expiration or
earlier termination of the Lease and, to the extent reasonably possible, Tenant
shall restore the Roof Space to substantially its condition immediately
preceding installation of the Equipment, excepting ordinary wear and tear, acts
of God, casualties, condemnation, obsolescence, and repairs that are
specifically made the responsibility of Landlord under this Lease.




(c)           Access.  Landlord
shall allow Tenant reasonable access to the Roof Space and other areas of the
Building so as to facilitate the installation, use and maintenance of the
Equipment and Cables, and the removal of the Equipment pursuant to the terms of
this Section 17.25.




(d)           Indemnity.  Tenant
shall indemnify and hold Landlord harmless from and against liability, costs and
expenses, including reasonable attorney’s fees, incurred by Landlord to the
extent caused by Tenant’s installation, use and maintenance of the Equipment and
Cables.




Section
17.26                                Right of First
Offer




(a)           Grant.  Subject
to the terms of this Section 17.26, Landlord grants to Tenant during the Right
of First Offer Term a continuous right of first offer (“Right of First Offer”) to
lease any space which is available for lease on the fifth (5th)
floor of the Building (“Available
Space”).  For the purposes of this Section 17.26, such space
shall not be deemed




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available
for lease, and this Right of First Offer shall not apply, if the space in
question is already leased to a tenant thereof who leases or re-leases such
space pursuant to any right to extend the term of its lease or expand the size
of its premises agreed upon by Landlord and such tenant as of the date of this
Lease (the “Superior Rights”).  Landlord represents and warrants that
all such Superior Rights, if any, are described in Exhibit K to this
Lease.




(b)           Term.  The
term of the Right of First Offer (“Right of First Offer Term”)
shall commence on the Commencement Date and shall terminate on the Expiration
Date or the expiration of any applicable Extended Term.




(c)           Covenants of
Landlord.  Subject to the conditions precedent established by
subsection (f) below, if at any time during the Right of First Offer Term
Landlord decides to offer any Available Space for lease, Landlord shall first
provide Tenant with a written notice (“Offer Notice”) detailing (i)
the rent at which said Available Space is being offered, (ii) the rentable
square footage and location thereof, (iii) the date the Available Space will
become available and (iv) all other terms upon which Landlord proposes to lease
the Available Space to Tenant including, without limitation, the tenant
improvement allowance and all rent concessions.




(d)           Exercise of Tenant’s Right
of First Offer.  Subject to the conditions precedent
established by subsection (f) below, Tenant may exercise Tenant’s Right of First
Offer to lease all (but not less than all) of the Available Space described in
the Offer Notice by providing Landlord with written notice (“Acceptance Notice”) thereof
within ten (10) business days of Landlord’s delivery to Tenant of the Offer
Notice.  If Tenant does not exercise its Right of First Offer within
said ten (10) business day period, then (i) Tenant shall, if Landlord desires to
lease less than all of the Available Space, first have a further right to lease
the smaller Available Space under this Right of First Offer, and (ii) Landlord
shall thereafter be free to lease the entirety of the Available Space to anyone;
provided, however, that if Landlord offers the Available Space at a rental rate
which is less than ninety percent (90%) of the effective rental rate specified
in the Offer Notice (taking into account differences in tenant improvement
allowances and free rent periods) for a lease for the same number of years as is
specified in the Offer Notice within ninety (90) days after the date on which
Landlord has delivered the Offer Notice to Tenant, then Tenant’s First Offer
shall again be applicable to Available Space.




(e)           Conditions to Right of First
Offer.  Notwithstanding anything to the contrary in this
Section 17.26, Landlord shall have no obligation to provide Tenant with an Offer
Notice, and Tenant shall have no right to exercise Tenant’s Right of First
Offer, if:  (i) Tenant is in default beyond all applicable notice and
cure periods either:  (a) at the time Landlord seeks to lease the
Available Space in question, or at the time Tenant seeks to give Landlord an
Acceptance Notice, whichever, is relevant, or (b) upon the date Tenant seeks to
take possession of the Available Space referenced in the Offer Notice, (ii)
Tenant has assigned this Lease or sublet more than fifty percent (50%) of the
rentable space located in the Premises to a party other than an Affiliate, (iii)
Tenant then occupies less than fifty percent (50%) of the Premises or
(iv) Tenant has received more than three (3) notices of default from
Landlord during the Term of this Lease.  Tenant’s Right of First Offer
shall be personal to Tenant and Tenant’s Affiliate and shall not be transferable
with any assignment of this Lease or subletting of the Premises.




54


(f)           Terms for Right of First
Offer.  In the event that Tenant exercises Tenant’s Right of
First Offer, Tenant’s occupancy of the Available Space taken shall be on all of
the same terms and conditions described in the Offer Notice.  In such
event, Tenant’s Share due hereunder and the number of parking spaces available
to Tenant shall also be adjusted accordingly.




(g)           Amendment to
Lease.  Landlord and Tenant hereby agree to execute an
amendment to this Lease (“Lease
Amendment”) prior to Tenant’s occupancy of the Available Space in
question.  The Lease Amendment shall specify, among other things, the
Rent, date of occupancy, increase in Tenant’s Share and square footage of the
Available Space taken in connection with Tenant’s exercise of Tenant’s Right of
First Offer.  If Tenant does not execute such a Lease Amendment within
fifteen (15) business days after the date on which it provides Landlord with the
Acceptance Notice, then, at Landlord’s option, Tenant’s rights hereunder shall
be void and terminated, but, otherwise, a valid exercise of Tenant’s Right of
First Offer shall be fully effective, whether or not such amendment is
executed.




Section
17.27                                List of
Exhibits




EXHIBIT A
            Real
      Property Legal Description, Project Site Plan and Premises Floor
      PlanEXHIBIT B
            Memorandum
      of Commencement of Lease Term and Schedule of Base
    RentEXHIBIT C
            Work
      Letter Agreement for Tenant Improvements and Interior Specification
      StandardsEXHIBIT D
            Signage
      ExhibitEXHIBIT E
            SNDAEXHIBIT F
            Estoppel
      CertificateEXHIBIT
      G
            Rules
      and RegulationsEXHIBIT H
            Shipping/Loading
      AccessEXHIBIT I
            Intentionally
      DeletedEXHIBIT
      J
            Sign
      LocationsEXHIBIT
      K
            Superior
      Rights




The
registrant agrees to funish to the Securities and Exchange Commission upon
request a copy of any omitted schedule or exhibit.







LANDLORD
AND TENANT EACH HAS CAREFULLY READ AND HAS REVIEWED THIS LEASE AND BEEN ADVISED
BY LEGAL COUNSEL OF ITS OWN CHOOSING AS TO EACH TERM AND PROVISION CONTAINED
HEREIN AND, BY EXECUTION OF THIS LEASE, SHOWS ITS INFORMED AND VOLUNTARY CONSENT
THERETO.  EACH PARTY HEREBY AGREE THAT, AT THE TIME THIS LEASE IS
EXECUTED, THE TERMS AND CONDITIONS OF THIS LEASE ARE COMMERCIALLY REASONABLE AND
EFFECTUATE THE INTENT AND PURPOSE OF LANDLORD AND TENANT WITH RESPECT TO THE
PREMISES.






Executed
at Sunnyvale, California, as of the reference date.




55









(Signatures
continued on next page)




56





LANDLORD:
              MT
      SPE, LLC, a Delaware limited liability company
              
              By:           Moffett
      Towers, LLC, a Delaware limited liability company
              Its:           Sole
      Member
              
              By:           Moffett
      Towers Management Inc., a Delaware corporation
              Its:           Managing
      Member
              
              By:  /s/ Jay
      Paul
              Jay
      Paul, President
            ADDRESS:
              c/o
      Jay Paul Company
              350
      California Street, Suite 1905
              San
      Francisco, CA 94104-1432TENANT:
              RAMBUS
      INC.,
              a
      Delaware corporation
              By:   /s/ Michael
      Schroeder
              Name:    Michael
      Schroeder
              (Type or Print Name)
              
              Title: Vice
      President,  Human Resources and
      Facilities
            ADDRESS:
              4440
      El Camino Real
              Los
      Altos, CA 94022
              Attn:  Director
      of Global Facilities and Real Estate
              (Before
      Commencement Date)1040
      Enterprise Way
              Sunnyvale,
      California 94089
              Attn:
      Director of Global Facilities and Real Estate
              (After
      Commencement Date)







57